Sriskandarajah and Minister for Home Affairs (Citizenship)

Sriskandarajah and Minister for Home Affairs (Citizenship) [2019] AATA 2374 (6 August 2019)

Division: GENERAL DIVISION
File Number(s): 2018/2643
Re: Jayandran Sriskandarajah
APPLICANT
And Minister for Home Affairs
RESPONDENT

Decision

Tribunal: Member R Maguire

Date: 6 August 2019
Place: Brisbane

The Tribunal affirms the decision under review

.............................[SGD].........................................

Member R Maguire

Catchwords

CITIZENSHIP – citizenship application refusal – good character – providing false or misleading information – applicant did not disclose previous passport and National ID Card – decision under review affirmed

Legislation

Australian Citizenship Act 2007 (Cth)

Cases

Al Tamimi v Minister for Immigration and Border Protection [2014] AARA 97

Beyan v Minister for Immigration and Border Protection [2015] AATA 256

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

Irving v Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634

Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187

Nguyen v Minister for Immigration and Border Protection [2018] AATA 1082

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) 1979 2 ALD 634

Re Lachmaiya (1994) AARA 148

Zheng v Minister for Immigration and Citizenship [2011] AATA 304

Secondary Material

Citizenship Policy dated 1 June 2016

REASONS FOR DECISION

Member R Maguire

6 August 2019

Introduction

This is an application by Jayandran Sriskandarajah to review the decision by a delegate of the Minister on 4 May 2018 to refuse his application for Australian citizenship by conferral under section 24(1) of the Australian Citizenship Act 2007 (“the Act”), on the ground that the applicant did not meet section 21(2)(h) of the Act, which requires the Minister to be satisfied that the applicant is of good character at the time of the Minister’s decision on the application.
Critical to this decision was a finding by the delegate that the applicant had demonstrated a pattern of behaviour of withholding information, or providing false information to the Department on multiple occasions in relation to his application for Australian citizenship.

the issue to be determined

The question for this Tribunal to consider, is whether the applicant was a person of good character within the meaning of those words in section 21(2)(h) of the Act as at the time of the delegate’s decision.

The Law

Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen.
Subsection 24(1) of the Act requires that if a person makes an application under section 21, the Minister (or a person delegated by the Minister) must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Subsection 21(2) of the Act sets out the general eligibility criteria for an applicant who is 18 years or older, and an applicant who is a permanent resident. Subsection 21(2)(h) of the Act provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the applicant “is of good character at the time of the Minister’s decision on the application.”
Subsection 24(1A) of the Act provides that the Minister (or a person delegated by the Minister) must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsections 21 (2), (3), (4), (5), (6), (7) or (8).
The term “good character” is not defined in the Act, however Chapter 11 of the Citizenship Policy dated 1 June 2016 provides guidance on the administration of the “good character” provisions under the Act.
Chapter 11 of the Citizenship Policy provides that “’Good character’ refers to the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship.”
The Citizenship Policy refers to the “Full FC judgment in Irving v Minister for Immigration, Local Government and Ethnic Affairs ((1996) 68 FCR 422; at 431-432)”:
“Unless the terms of the Act and regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective opinion … A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character….Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.”
The description of this passage as coming from a “Full FC judgment” is slightly misleading, as the judgment in question was not a joint judgment of the Full Court. It was from a judgment delivered in the Full Court, but was not a judgment of the Full Court in that it was not a judgment of all three judges. The Court was constituted by Davies, Lee and RD Nicholson JJ. Each of the judges gave separate reasons, concurring in the result. Nicholson J. expressly concurred with the reasons of Davies J., and neither Davies J. nor Nicholson J. expressed concurrence with the judgment of Lee J. from whose judgment the quoted extract is drawn.
The question whether a person is or is not “of good character” is primarily an issue of fact. Davies J remarked:
“The drawing of a conclusion by a decision-maker as to whether he or she is satisfied that an applicant for a visa is of “good character” requires the exercise of a value judgment. There are no precise parameters which distinguish “good character” from “bad character”. Although, in general, “good character” can be readily recognised, in a particular case views may differ. It is for the administrative decision-maker, in whom Parliament has reposed the function of making that assessment, to arrive at a decision…”
In deciding that fact, the Tribunal “was entitled to be guided by any general relevant government policy which was not inconsistent with the provisions or the objects of the [relevant] act”.

In Minister for Immigration and Ethnic Affairs v Baker the Full Federal Court said:
“The words “good character” in this section, should as Lee J pointed out in Irving (at 431-432), be understood as “a reference to the enduring moral qualities of a person”. Conduct may make those qualities visible, but it should never be confused with them. In each case, having had regard to the conduct, the Minister or other decision-maker must still come to a further conclusion, whether or not to be satisfied that the person is of good character.”
The decision of Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) 1979 2 ALD 634 makes clear that in considering the application of policy, the Tribunal must not lose sight of its duty. Brennan J said:
“The Tribunal’s duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all in fulfilling its statutory function.”
Neither party has submitted that there are cogent reasons to warrant a departure from the Citizenship Policy in this review. Nevertheless, the Tribunal bears in mind that the Citizenship Policy expressly states that it is not a binding checklist, and that decision makers need to look at the merits of each case, and to turn their minds to the issues until they are “satisfied” on a reasonable basis that an applicant is, or is not, of good character.
The Citizenship Policy also states that in this context, “moral” does not have any religious connotations, and that the phrase “enduring moral qualities” encompasses the following concepts:
        Characteristics which have been demonstrated over a very long period of time;
        Distinguishing right from wrong; and
        Behaving in an ethical manner, conforming to the rules and values of Australian society.
The Citizenship Policy further states that a decision maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout their migration and citizenship processes.
The Citizenship Policy also refers to the matter of Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, where Deputy President D.P. Breen discussed the role of the character requirement in a citizenship application (at [8]):
“The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home. The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of the State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.”
The Citizenship Policy also refers to Zheng v Minister for Immigration and Citizenship ((2011) AATA 304), a decision of Deputy President S.A. Forgie. In that decision, after considering relevant authorities, Deputy President Forgie stated [at 119]:
“It would seem, then, that the authorities are drawing attention to a person’s ability to know what society considers good, right and proper and to conduct him or herself in a manner that accords with society’s values.”
Deputy President Forgie found that the preamble to the Act could provide assistance in identifying what Australian society considers to be right and proper behaviour for the purposes of assessing good character.
The Preamble to the Act is as follows:
The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:
(a) by pledging loyalty to Australia and its people; and
(b) by sharing their democratic beliefs; and
(c) by respecting their rights and liberties; and
(d) by upholding and obeying the laws of Australia.
After considering the text of the Preamble, Deputy President Forgie stated [at 120]:
“In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what a person says, in part by what a person does, and in part by what a person is heard to say and seen to do.”
The Citizenship Policy also includes a non-exhaustive list of characteristics of good character:
        respect and abide by the law in Australia and other countries
        be honest and financially responsible (for example, pay their taxes, and not be in dishonest receipt of public funds
        be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:
o    providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications
o    involvement in a bogus marriage
o    concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship
o    involvement in Centrelink or Australian Tax Office fraud
o    giving false names and /or addresses to police.
        not be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without a licence or insurance)
        not be associated with others who are involved in anti-social or criminal behaviour, or others who do not uphold and obey the laws of Australia
        not have evaded immigration control or assisted others to do so, or been involved in the illegal movement of people
        not have committed, been involved with or associated with war crimes, crimes against humanity and genocide
        not be the subject of any extradition or other international arrest warrant
        not be involved in or providing assistance to, or reasonably suspected of being involved in or providing assistance to terrorist organisations or acts of terrorism overseas or in Australia
        not be the subject of any verifiable information causing character doubts.

CONSIDERATION

The applicant is a citizen of Sri Lanka born in 1981 in Batticaloa East Province, Sri Lanka.
On 12 August 2008, the government of Sri Lanka issued the 2008 passport which bore the applicant’s photograph and showed his name and personal details as Janyandran Sriskandarajah, born in 1981 in Batticoloa, and whose national identity card number was XXXX. The passport was due to expire on 12 August 2018.
On 21 July 2017, the Department of Home Affairs received information from the United Kingdom Border Agency that the applicant provided the 2008 passport number to the UK authorities in relation to a student visa application to the United Kingdom, and that on 8 October 2008 the applicant was refused a student visa to the United Kingdom in Chennai. A match was made based on biometrics supplied in relation to the applicant’s UK student visa application and his application for a subclass 866 protection visa lodged in Australia.
The applicant first arrived in Australia by boat on 25 October 2009, and was granted a protection visa (subclass XA – 866) on 8 June 2011. The applicant applied for Australian citizenship on 1 July 2015.

Form 1300t statement – 1 July 2015

On 1 July 2015, the applicant lodged a Form 1300t Application for Australian Citizenship with the Department of Home Affairs. Question 21 in that form, asks the applicant “Do you currently have, or have you ever had, any national identity documents or numbers (including birth registration numbers, social security cards, etc.)?” The applicant responded “no” to this question. The applicant signed this document on 18 June 2015. Section 48 (Part L – Declaration) of that document states “please read the following carefully before signing”. The second point below the declaration states “I declare that the information I have supplied in this form is complete, truthful and correct in every detail”.
Immediately beneath the heading “Part L Declaration”, the following appears in bold font:
“WARNING: It is an offence under section 50 of the Australian Citizenship Act 2007 to deliberately make, or cause to make, a false or misleading statement, or conceal circumstances in relation to this application.”
Section 50 of the Act is as follows:
False statements and representations
(1) A person commits an offence if:
(a) the person makes, or causes or permits to be made, a representation or statement; and
(b) the person does so knowing that the representation or statement is false or misleading in a material particular; and
(c) the person does so for a purpose of or in relation to this Act.
Penalty: Imprisonment for 12 months.
(2) A person commits an offence if:
(a) the person conceals, or causes or permits to be concealed, a material circumstance; and
(b) the person does so for a purpose of or in relation to this Act.
Penalty: Imprisonment for 12 months

Form 80 statements – 27 February 2017

On 2 March 2017, the applicant provided a Form 80 “Personal particulars for assessment including character assessment” signed by the applicant on 27 February 2017.
At question 10 of the Form 80, the applicant was asked “Do you have any other current passport or travel document?” The applicant ticked “No” in response to this question.
At question 11 of the Form 80, the applicant was asked “Have you ever had any previous passports or travel documents (including expired, lost or stolen documents)?” The applicant again responded “No” to this question.
At question 14 of the Form 80, the applicant was asked “Do you currently have, or have you ever had, any national identity documents or numbers (including birth registration numbers, social security cards etc)?” The applicant also responded “No” to this question.
At question 53 (Part S – Declaration) of the Form 80, the applicant signed the document below a warning advising that “Giving false or misleading information is a serious offence”. By signing the declaration, the applicant declared “the information I have supplied in or with this form is complete, correct and up-to-date in every detail”.
On 21 April 2017, the applicant was sent a request for further specified identity documents and was advised that if he did not have these documents in his possession he was required to supply an explanation as to where they were currently located. The applicant was required to provide those documents within 28 days, by 18 May 2017.

Applicant’s statement of 9 May 2017

The applicant responded in a reply dated 9 May 2017, in which he made the following statement, “the following documents are not available due to the reasons specified below. 2. Sri Lankan passport – I have not obtained Sri Lankan passport while I was in Sri Lanka”. This statement was received by the Department on 16 May 2017.

Applicant’s statement of 11 September 2017

On 13 September 2017, the Department received a letter from the applicant in which he again stated “the following documents are not available due to the reasons specified below. 2 Sri Lankan passport – I have not obtained Sri Lankan passport while I was in Sri Lanka.” This document was signed by the applicant on 11 September 2017.

Applicant’s statement of 16 October 2017

In a Form 929 “Change of Address and/or Passport Details”, which the applicant signed on 16 October 2017, the applicant responded to question 13 “Details of other passports held by the applicant/visa holder” by leaving the box blank. The applicant signed this document at section 14 (Part D – Declaration) where the applicant was warned that “Giving false or misleading information is a serious if offence”.
On 5 March 2018, the applicant was sent an invitation to comment on adverse information by the Department, and given 28 days in which to respond to the information set out in the letter. In that letter it was put to the applicant that he had stated on two separate occasions that he did not have any national identity documents or numbers, that he had also responded on two separate occasions that he did not have either a previous or current passport or travel document, and he had twice declared that he had not obtained a Sri Lankan passport while he was in Sri Lanka. Also, information available to the Department indicated that the government of Sri Lanka had issued a passport to the applicant and that the passport bore his photograph and showed his name and personal details as Jayandran Sriskandarajah born in Batticoloa. The document number on that Passport 2008, was issued on 12 August 2008 to an individual whose national identity card number was XXXX. This passport was due to expire on 12 August 2018. The delegate’s decision record noted that the applicant had stated on two occasions that he did not have a passport and had signed a declaration in support of this contention. The invitation to comment also advised that based on the above information, it appeared as though the applicant did have a current, valid passport issued to him by his country of birth, and it therefore appeared as though he may have provided false and/or misleading information to the Department on a number of occasions, and it appeared as though he may not be of good character for the purposes of his citizenship application.

Applicant’s response of 31 March 2018

The applicant subsequently provided a response dated 31 March 2018 which the delegate considered did not address the primary concerns raised in the letter, namely that he had previously held a passport and a national ID card, but had stated on multiple occasions that he did not and had never held a passport or national ID card. The applicant did not acknowledge possessing the passport in question, and did not deny possessing the passport.
In his response the applicant stated that he had lost his ID card whilst travelling by boat some 10 years ago, and as a result he was unable to remember the ID card number. This statement was inconsistent with the information provided in the applicant’s Form 80 signed on 27 February 2017 whereby the applicant stated in response to question 14, that he did not have and had not ever had a national ID document or number. The delegate considered that the applicant did not address the primary issue regarding the existence of the documents and the provision of false information to the Department.
The delegate considered that the inconsistencies noted, demonstrated a pattern of behaviour of providing false information, and that the applicant was not a person of good character for the purpose of assessing the applicant’s application for Australian citizenship.
The delegate formed the view that the applicant had not behaved in a manner that was consistent with the expectations of the community, and that the applicant had not been truthful in his dealings with the Australian government, and had intentionally provided false or misleading information to the Department on a number of occasions, and had attempted to deceive the Department, and found that the applicant did not meet paragraph 21(2)(h) of the Act. The application for conferral of Australian citizenship was therefore refused. That decision was made on 4 May 2018.

Application Hearing

The applicant made this application for review pursuant to section 52(1)(b) of the Act on 11 May 2018.
The application for review was heard on 25 October 2018, before a Senior Member who has since become incapacitated and unable to deliver a decision. Subsequent to the hearing, the review was reconstituted to the present Member for a decision on the basis of the transcript of the hearing and all other evidence before the Tribunal. In view of the passage of time since the hearing, both parties were invited to provide further submissions, which have been considered by the Tribunal.

Applicant’s Statement of Facts Issues and Contentions.

The statement of facts issues and contentions (SFIC) delivered by the applicant contained no denial that the applicant had provided false and or misleading information concerning his passport and national identity card during several interactions with the Department. It asserted that the passport was removed from the applicant by the people smugglers, , and that the people smugglers told the applicant that he “should not take any of his identity documents and also should not tell anything, and that due to his situation and due to fear he did not disclose information relating to the passport.” It also asserted that the applicant’s application for citizenship by conferral was completed with assistance of another person.
The applicant accepted and acknowledged that there was “a significant lapse in judgement in not disclosing the fact a passport and the NIC had been issued to him, and sincerely apologised for not disclosing this truth.”
It was further submitted that the applicant respects and has abided by Australian law since arriving in Australia.

Reference letter of Barbara Lunney

The Tribunal has considered the character reference provided by Barbara Lunney dated 26 March 2018. Ms Lunney stated that she had known the applicant for a period of six years through work and social circumstances. Ms Lunney stated that she had always found the applicant to be of good character, and spoke positively of his integrity, great dignity, and respect for himself and others, and said that he is well received by his fellow staff.
Ms Lunney also said that she found the applicant to be truthful and honest, and commented that his understanding of events is sometimes hampered by his understanding of both written and spoken English. Ms Lunney described the applicant as an asset to his workplace and reiterated that she was happy to attest to his good character.
The Tribunal accepts that the applicant is well regarded in his workplace. However the Tribunal notes that there is nothing in Ms Lunney’s reference letter to suggest that she is aware of the nature, details, or duration of the applicant’s interactions with Australian government officials in relation to this review, and the Tribunal therefore gives this letter little weight.

Applicant’s Statutory Declaration of 29 June 2018

In his statutory declaration of 29 June 2018, the applicant repeated the advice which had been given to him by the people smugglers:
“3. The reason for not disclosing that a passport had been issued to me was because the people smugglers in Sri Lanka told me that I should not disclose that I had been issued a Sri Lankan passport. I was also told that I should not take any form of identity document including a National Identity card with me on the boat.”
In the same instrument, the applicant referred to assistance he had received in the completion of his application for Australian citizenship:
“2. An elderly person (Mr Kumaran) in the community assisted me in applying for Australian citizenship and he completed the citizenship forms for me and advised me how I should respond during my departmental interactions. He told me that it would be good for me to maintain what I said earlier, he said it will all be fine if you said what you said previously.”
With reference to his national identity card, the applicant declared:
“7. Though I brought the Sri Lankan National Identity card with me to Australia, it was lost during my travel I believe this was in 2015, this happened when I was returning from India to Australia.”

Applicant’s Statutory Declaration of 24 October 2018

In his statutory declaration of 24 October 2018, the applicant departed from his previous declaration, now declaring that the application for Australian citizenship had been completed with the assistance of a staff member of Afghan appearance at MDA in Rockhampton.
The applicant also declared:
“5. The information provided in the citizenship application and other form regarding the National ID is my genuine and truthful response to the question that I was asked by persons who filled the forms. I did not intend to mislead the department in anyway when I responded regarding the National ID card.”

Applicant’s evidence at hearing

In evidence before the Tribunal, the applicant said that he had his passport with him when he got into the boat, and the bag in which it was stored went missing during the journey. The applicant also confirmed that he had not disclosed the existence of his passport in his response to question 11 when interviewed at Christmas Island, and gave a similar answer in response to questions 17, and 13. Consistent with these answers, the applicant denied that he had ever been denied or refused a visa or entry to another country in his response to question 35.
The applicant also gave evidence that in answer to question 10 he would have given an Australian Travel document, when in actual fact in response to the question “Do you have any other current passport or travel document?”, he had ticked the “No” box. The applicant also confirmed that he said “No” to question 11 in that same form to the question “Have you ever had any previous passports or travel documents (including expired lost or stolen documents)?”. The applicant also confirmed that he had told the Department in a letter dated 9 May 2017 that he had not obtained a Sri Lankan passport while he was in Sri Lanka.
The applicant also gave evidence regarding his response to question 30 on page 2 of Exhibit 2 ST1. This appears to be an error in the transcript, as the form contains no question 30, and the question appears to relate to question 13, which requested the applicant provide details of other passports held by him. The answer was left blank. The applicant said that Mr Kumaran had completed the form, and that he (the applicant) had already “mentioned to him that I have said, like, I never had a passport so – but he didn’t ask me the question.”

Cross examination of the applicant.

Under cross-examination, the applicant confirmed that he had been granted a permanent resident protection visa in June 2011, and since that time had been allowed to live and in Australia, access Medicare, Centrelink, and remain as long as he wanted, and had been granted an Australian travel document in 2013.
The applicant admitted that he obtained a passport in Sri Lanka in 2008, as his father wanted to send him as a student to England, and that he had applied for a visa to England, but that application had been refused. The applicant admitted that when he arrived in Australia on Christmas Island, he denied having that passport, and had continued to deny having it until about six months prior to the then present date.
The applicant gave evidence that he completed his application for citizenship with the assistance of an otherwise unidentified Afghan male at the MDA office. In an exchange with the presiding Senior Member, the applicant said that the Afghan male did not give him any advice whilst completing the form.
The applicant also gave evidence that the Afghan male asked him whether he had a national ID card, and he had replied no, even though he knew that he had had a national ID card, and the Immigration Department already knew this. The applicant confirmed his signature on the application for citizenship, but said that he had not read the warning that it was an offence under section 50 of the Australian citizenship act 2007 to deliberately make, or cause to make, a false or misleading statement, or conceal circumstances in relation to an application.
The applicant admitted in relation to question 11 that he had answered the question “no” when he knew the answer was “yes”, and later admitted that he had “already lied to the Department”. The applicant also gave evidence that he did not disclose that he had applied for a UK visa because he had already lied saying that he had not had a passport. The applicant gave evidence that Mr Kumaran who assisted him to complete the Form 80, did not read the accompanying declaration to him but admitted that he had signed it nevertheless.
When pressed on the meaning of the word “warning”, the following exchange occurred at page 49 of the transcript:
MR RAY: Could you turn to page 124 of that document on your left? Do you see your signature at the top right-hand side of that page? Do you see your signature there?
WITNESS: Yes.
MR RAY: Yes? And do you see just above that signature in bold letters the word 'warning'? Yes?
WITNESS: Yes.
MR RAY: Did you recognise that word?
INTERPRETER: Okay. Yes, I - okay, yes, I knew that but I didn't - I wasn't read the - like I didn't read this information about that - that signature.
MR RAY: But you now recognise that word 'warning'; is that right?
INTERPRETER: Okay. Yes, I understood now like, yes, it's a big issue that warning.
MR RAY: But do you understand the meaning of the word 'warning'?
INTERPRETER: Yes.
MR RAY: And you would have understood the meaning of that word in February last year?
INTERPRETER: Okay. At that time I didn't think that it - this is going to cause this much a problem.
MR RAY: But you knew what the word meant, did you?
INTERPRETER: Okay. I know the consequences, I know the meaning of warning, but I didn't realise that this is going to cause this much problem for me.
MR RAY: Yes. So, you knew the meaning of the word an you signed just below it without asking for any explanation of what that was about; is that right?
INTERPRETER: Yes, I did sign that without asking for any explanation.
The applicant later admitted to telling Mr Kamaran to advise the Department that he had not obtained a Sri Lankan passport whilst in Sri Lanka, and that he knew he was lying when he did this.
The applicant was questioned regarding a letter dated 11 September 2017, which he sent to the Department, and which again stated that he had not obtained a Sri Lankan passport while he was in Sri Lanka, and admitted that he knew it contained a lie, and said “I just wanted to maintain that lie.” He then agreed that he wanted to maintain that lie throughout.
The applicant was also questioned regarding a letter he received from the Department in March 2017, following which he consulted a lawyer, and the following exchange occurred beginning at page 61 of the transcript:
MR RAY: So you understood the letter well enough to know that you had been caught, is that right?
INTERPRETER: Okay. Yes, I did understand that, like, yes they have come to know that - my lie.
MR RAY: You knew that they had come to know your lie, is that right?
INTERPRETER: Yes.
MR RAY: Then, instead of admitting to your lie, you instructed your lawyer to write to the Department raising issues with the way that the Department may have found out about your passport, is that right?
INTERPRETER: Sorry, can you repeat that? Yes.
MR RAY: Yes. You didn't tell your lawyer to admit to your lie, did you?
INTERPRETER: Okay. I mentioned to my lawyer that I have already obtained a passport.
MR RAY: Your lawyer speaks Tamil, doesn't he?
INTERPRETER: Yes.
MR RAY: Did he read you the letter that he sent in response to the letter from the Department of Immigration before he sent it?
INTERPRETER: Yes. He read that letter to me in Tamil.
MR RAY: In Tamil?
INTERPRETER: Yes.
MR RAY: And you understood that the letter wasn't an admission about the lie, didn't you?
INTERPRETER: Okay. I did send a letter in Tamil, I wrote a letter in Tamil to my lawyer acknowledging my mistake and I acknowledged that I had told a lie.
MR RAY: Yes, but that was in July, wasn't it? I'm talking about the letter that your lawyer sent in March this year?
INTERPRETER: March this year?
MR RAY: March this year?
WITNESS: (No audible reply.)
MR RAY: If you could look at page 163 of the T documents. Do you see a letter there dated 31 March 2018?
WITNESS: (No audible reply.)
MR RAY: Do you see that letter?
INTERPRETER: Yes.
MR RAY: Do you recognise that letter?
INTERPRETER: Yes, I do remember this letter.
MR RAY: Is that the letter that your lawyer read to you in Tamil?
INTERPRETER: Yes, I can't remember whether that's the letter, but I have written a letter in Tamil for him.
MR RAY: Yes. But do you - did your lawyer read this letter that you can see in front of you to you?
INTERPRETER: Okay. I can't remember because mainly, like, we always discuss these letters over the phone. Okay. I told my lawyer - I confess to him, like, that I have - few times I have told lies to the Department, but now I know that, like, I could remember getting a passport in Sri Lanka.
MR RAY:
SENIOR MEMBER: Just by way of clarification, did he say that he told his lawyer that he could remember getting the passport in Sri Lanka?
INTERPRETER: Sorry, can ‑ ‑ ‑
SENIOR MEMBER: Did the applicant just then say that he could remember - he told his lawyer that he could now remember getting a passport in Sri Lanka?
INTERPRETER: Yes. Yes. And also I told him that I lied to the Department previously.
SENIOR MEMBER: Yes. Yes, I got that bit.
INTERPRETER: Previously. Yes.
SENIOR MEMBER: I just wanted to clarify the other. Thank you.
MR RAY: And then in May this year the Immigration Department made a decision to reject your application for citizenship, do you remember that?
INTERPRETER: Yes.
MR RAY: And it wasn't until that had happened that you finally came clean about your lies, was it?
INTERPRETER: Okay. Yes, yes, but the whole reason was, like, yes, because I don't want this procedure to get delayed or anything like that.
MR RAY: Yes. You were still worried about delays, even after you had been found - even after your lies had been found out, is that right?
INTERPRETER: Okay. When I was informed about that, like, I immediately confess that, yes, I have told lies.
MR RAY: In July this year you wrote a letter, in Tamil, in handwriting. That was the letter you were talking about before. Do you remember that letter?
WITNESS: (No audible reply.)
MR RAY: And you said in that letter that the reason you didn't give any information about your passport was because it had been lost and you didn't have a copy?
INTERPRETER: Okay. My understanding was that, like, yes, because I had the passport, I lost it and I didn't have a clue, like, I didn't have any copies or anything like that, so why do I have to bring that up again?
MR RAY: But that wasn't the reason you didn't disclose your passport, was it?
INTERPRETER: Okay. So and that time, like, yes, I have denied that I didn't have the passport, like, yes. So I didn't have to reason out, like, anywhere, so I made up my mind - sorry, can you - okay. Okay. If I had told them at that time, then they dig that up, like, ask he me more questions about what happened and everything. So that's why, like, I didn't want to tell at that time. But here, this - now, I had to. Like, I don't have any other way to hide it.
MR RAY: So after your lie was found out and your citizenship was rejected, you continued to lie, didn't you?
INTERPRETER: Okay. As soon as they informed me, then I agreed and, like, I informed them again that I have - I told lies about this passport.
MR RAY: You said the reason you did not give any information about the passport was because it was lost and you didn't have a copy, didn't you?
INTERPRETER: Yes. Now.
MR RAY: In July that's what you said. But that was a lie because the reason you did not give any information about your passport was because you wanted to avoid any delay?
INTERPRETER: Okay. Say for (indistinct), like, when I arrive in Australia I have told that I didn't have a passport. So I had to maintain that. So because of that only, like, when they repeatedly asked me, I had to maintain that I didn't have a passport. So now they have found out that I had a passport so I had to agree and I have to tell the truth.
MR RAY: But you didn't tell the truth, did you? Because you said the reason that you did not give any information about the passport was because you had lost it and you didn't have a copy, when that was not the reason?
INTERPRETER: Okay. So that reason I was - I gave that quite recently.
MR RAY: Yes. Yes. Why did you say that?
INTERPRETER: Okay. So, like, yes I knew, like, when the bag was missing, I knew the passport has gone. Passport's gone. So at that time, like, I couldn't - that police (indistinct) or complaint, make a complaint or anything like that.
MR RAY: What I'm saying to you is that you were still making excuses in July this year and not admitting to your lie?
INTERPRETER: Okay. Say, like, yes, I was helpless at that time, like, yes, because I knew that the bag's lost. So, like, yes, I have no way to find my passport.
MR RAY: In June of this year, four days before you provided that handwritten letter, you provided a different excuse for why you had not disclosed your passport. Do you remember signing a statutory declaration in June this year?
INTERPRETER: Okay. Is it possible to have a look at it?
MR RAY: Do you remember signing a statutory declaration in June this year?
INTERPRETER: Yes.
MR RAY: Could the witness be shown a copy of exhibit 4. Sorry, exhibit 3, the applicant's SOFIC annexures. If you turn to annexure 7, do you see a statutory declaration?
WITNESS: (No audible reply.)
MR RAY: Do you see that document?
WITNESS: Yes.
MR RAY: And do you see on the second page of that document your signature?
INTERPRETER: Yes.
MR RAY: Do you remember signing that statutory declaration?
INTERPRETER: Yes.
MR RAY: In that statutory declaration the excuse you gave was that Mr Kumaran advised you how you should respond during your departmental interactions?
INTERPRETER: Okay. All that he suggested was, like, yes, stick on with what I have already provided, and said to the Department.
MR RAY: And you said he told you that it would be good for you to maintain what you said earlier and that it would all be fine if you said what you said previously?
INTERPRETER: Okay. So because Kumaran - he didn't know anything about the passport issue, like, yes, inside the passport issue. So - but he suggested me, was like, "Yeah, whatever you declared or said to Immigration Department, you follow that and stick on with that."
MR RAY: He didn't tell you to lie, though, did he?
INTERPRETER: Sorry, pardon?
MR RAY: Did he tell you to lie?
INTERPRETER: I never mentioned anything to Kumaran about my passport issue.
MR RAY: Did Mr Kumaran tell you to lie in your application for citizenship?
INTERPRETER: Okay. So he didn't ask me to do any - tell any lies, but all that he said was, "Whatever that you have already given, you maintain that."

The Tribunal accepts the applicant’s evidence that he had obtained a passport in Sri Lanka in about 2008, and that he had subsequently been refused a visa to enter the United Kingdom as a student.
The Tribunal accepts the applicant’s evidence that he lied to Australian authorities about his passport because he was advised by people smugglers to do so whilst he was en route to Australia. The Tribunal finds by inference from this that the applicant arrived in Australia on 25 October 2009 with the intention of lying to Australian authorities regarding his passport, and did so lie. The Tribunal accepts the applicant’s evidence that he continued to lie about his passport until about six months prior to the date of the hearing, which was held on 25 October 2018. The Tribunal further finds that a person of good character would not have acted in this way over such a lengthy period of time.
The Tribunal also accepts the applicant’s evidence that he had lied in failing to disclose the refusal of his student visa application to study in the United Kingdom, and finds that a person of good character would not have acted in this way.
The Tribunal considers that the applicant provided his evidence and submissions with the intention of creating the impression that Mr Kumaran was in some way implicated in his own wrongdoing. The Tribunal accepts the applicant’s evidence – given under cross-examination at the hearing on 25 October 2018- that Mr Kumaran did not know about the passport issue, and did not know the applicant was lying, and did not ask or encourage him to do so. The Tribunal finds that a person of good character would not seek to implicate an innocent man in the way the applicant sought to implicate Mr Kumaran. The Tribunal expressly makes no adverse finding in respect of Mr Kumaran.
The question of what offences under Commonwealth law the applicant may have committed in the course of this application is for the Minister to consider, not for this Tribunal.
In Re Lachmaiya (1994) 19 AAR 148, Deputy President McMahon made remarks which are apposite to the current discussion:
“The observance of truth in dealing with officials in migration matters, (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia. To lie consistently, as Mr Lachmaiya has over a period of years, is to subvert the administration, and in the context of the Act, to demonstrate that Mr Lachmaiya is not a person of good repute or character. Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.”
Other decisions of this Tribunal demonstrate that those who deliberately and repeatedly lie or make false and misleading statements to government should not be seen as of good character.
The Tribunal finds as a fact that the applicant formulated an intention to lie to, and deceive Australian authorities prior to coming to Australia, and continued to make false comments whilst seeking and being granted Australia’s protection, and pursuing citizenship.
The applicant’s long and unbroken chain of lies and obfuscation in his dealings with the Department, beginning on the day of his initial interview by Australian authorities, 25 October 2009, up to and including the date of hearing nine years later to the day on 25 October 2018 demonstrate a pattern of behaviour over a period of nine years.
The Tribunal rejects the submission made on behalf of the applicant that he respects and has abided by Australian law since arriving in Australia.
As such, the Tribunal finds that the applicant was not a person of good character, and was not a person of good character as at the time of the Minister’s decision in this matter, and accordingly the decision under review must be affirmed.

I certify that the preceding 81 (eighty-one) paragraphs are a true copy of the reasons for the decision herein of Member R Maguire

.....................[SGD]....................................

Associate

Dated: 6 August 2019

Date of hearing:

Date final submissions received:

25 October 2018

28 June 2019

Representative for the Applicant:

Sudarshan Sanjeevakumar Tambimuttu

Solicitors for the Respondent:

Adam Ray, Clayton Utz

[2019] AATA 2374

6 August 2019

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction