VBPF and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) - [2023] AATA 396

VBPF and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 396 (14 March 2023)
Division:GENERAL DIVISION
File Number: 2019/0797
Re:VBPF
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

Decision
Tribunal:R Cameron, Senior Member
Date:14 March 2023
Place:Melbourne

The Tribunal affirms the decision under review.
..................................[sgd]......................................
R Cameron, Senior Member
Catchwords
MIGRATION – refusal of an application to become an Australian citizen by conferral - delegate not satisfied of the applicant’s identity as required by s 24(3) of the Australian Citizenship Act 2007 (Cth) – meaning of good character in s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) – misleading and deceptive conduct in dealing with immigration authorities – decision affirmed
Legislation
Australian Citizenship Act 2007 (Cth)
Statutory Declarations Act 1959 (Cth)
Cases
Abebe v The Commonwealth (1999) 197 CLR 510
BOY19 v Minister for Immigration and Border Protection (2019) 165 ALD 39
Djuraj v Minister for Immigration and Multicultural Affairs [2001] FCA 986
Irving v Minister of State for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Minister for Immigration and Multicultural Affairs and Indigenous Affairs v SGLB [2004] HCA 32
Re Dovey and Minister for Immigration and Multicultural Affairs [2001] AATA 935
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Secondary Materials
Citizenship Procedural Instruction 15 (Assessing Good Character under the Citizenship Act)
Department of Foreign Affairs and Trade, DFAT Thematic Report on Political and Security Developments in Afghanistan (August 2021 to January 2022) (14 January 2022)
International Crisis Group, Pakistan: The Militant Jihadi Challenge (Asia Report No 164, 13 March 2009)
United Nations High Commissioner for Refugees, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan (July 2009)
REASONS FOR DECISION
R Cameron, Senior Member
14 March 2023
INTRODUCTION

The applicant seeks a review of a decision made by a delegate of the respondent on 27 November 2018 (“the reviewable decision”).[1] The reviewable decision refused an application made by the applicant to become an Australian citizen by conferral pursuant to the provisions of the Australian Citizenship Act 2007 (Cth) (“the Act”).
[1] The reviewable decision is document T 2 of the T documents.
The ground relied upon by the delegate in refusing the applicant’s application to become an Australian citizen by conferral was that they were not satisfied of the applicant’s identity as required by s 24(3) of the Act.
In early 2019, subsequent to the reviewable decision being made, the applicant obtained an Afghanistan identity document (described as an identity card) known as a “tazkira” which revealed his true name to be “SW”.[2] The applicant’s tazkira was furnished to the respondent.
[2] Details of the tazkira and a translation of same can be found at pages 284-288 of the Further Supplementary T documents (document FST 30). As an order has been made under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) with respect to this application, all persons including the applicant and those connected with him will be referred to by pseudonyms.
Further enquiries with the Afghanistan authorities, presumably by the respondent, determined that the tazkira provided by the applicant to the respondent in early 2019 was genuine. Having determined that the applicant’s tazkira was genuine, the respondent accepted his identity as described in that document, namely “SW”. Having been satisfied of the applicant’s identity, the respondent properly determined that the provisions of s 24(3) of the Act no longer applied.
THE EVIDENCE BEFORE THE TRIBUNAL
There was both viva voce and documentary evidence before the Tribunal.
The applicant gave evidence from the witness box and additionally by way of several witness statements and a statutory declaration.[3]
[3] There was a statutory declaration made by the applicant of 31 May 2018, a statement of 13 July 2020, a statement of 21 December 2022 and a further statement dated 13 February 2023.
Additionally, there was an array of documentary evidence received. The documentary evidence consisted of a Consolidated Bundle of documents lodged by the applicant on 14 February 2023 consisting of 150 pages, a bundle of documents accompanied by a letter from the applicant’s lawyers dated 21 December 2022, a further bundle of documents relating to an application made to this Tribunal (application number 2119363-5) by the applicant seeking review of a decision made by a delegate of the respondent to cancel the applicant’s subclass 866 (Protection) visa, a Police Certificate, a letter of Abdul Alizada, a letter of Raz Baqeri, a statement of MZM dated 13 February 2023, the T documents, supplementary T documents and further supplementary T documents.
THE RELEVANT PROVISIONS OF THE ACT
The relevant sections of the Act are as follows:
Section 21(1) provides:
(1) A person may make an application to the Minister to become an Australian citizen.
Section 21(2) provides:
General eligibility
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister's decision on the application; and
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister's decision on the application.
Section 24(1A) provides:
The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
THE ISSUE BEFORE THE TRIBUNAL
Given that the applicant’s identity has been confirmed, and is no longer in dispute, there is only one further issue for determination by the Tribunal, namely whether the applicant is of good character within the meaning of s 21(2)(h) of the Act.
RELEVANT FACTS
Most of the relevant facts in this case are not overly controversial. They were overwhelmingly admitted by the applicant either in one of the several witness statements or statutory declaration made by him, or alternatively whilst he was in the witness box.
The applicant is a citizen of Afghanistan. He is a Shi’a Hazara.
He arrived in Australia on 16 September 2008. He was an unauthorised arrival who travelled to Australia on a “bogus” or false Pakistani passport.
Upon his arrival, the applicant was interviewed by an officer of the Department of Immigration and Citizenship (“the Department”) with the assistance of an interpreter. A record of that interview was in evidence before the Tribunal.[4] The applicant did not contend that the record of interview was anything other than accurate.
[4] The record of interview is document ST 23 in the ST documents. The interview was tape-recorded. The recording was not in evidence before the Tribunal. The details of the record of interview before the Tribunal were typewritten or a transcription of the interview.
The record of interview noted that the officer of the Department informed the applicant that he was expected to give true and correct answers to the questions asked of him. He was also informed that he should understand that if the information he gave at any future interview was different from what he told the officer, then, this could raise doubts about the reliability of what he had said. In response to whether or not he understood what he had been informed, the applicant said “yes”.
The applicant stated that his name was “AN”. He stated that no other names had been used but he had assumed the name “Raj” for travel from Pakistan to Thailand. He stated his nationality was Afghan but had not lived in Afghanistan for 18 years. His marital status was described as “widowed”. His wife was recorded as named “FN”, whose date of birth was unknown, and that she had died in Iran five years ago from an illness.
Additional information was provided by the applicant to the interviewer concerning his family, including that his father, “IN”, whose date of birth was unknown, had died in 2004 in Pakistan, of old age, and that his mother “G [no surname]”, whose date of birth was unknown, died in 2006 in Pakistan, of old age.
It was recorded that the applicant had two sons, “JN”, date of birth unknown (15 years old), and “KN”, date of birth unknown (10 years old). It was stated that both of the applicant’s sons lived with his sister “K” in Pakistan.
He identified having six siblings who he said resided together at an address he did not know. They were “KN”, date of birth unknown (42 years old), sister; “SN”, date of birth unknown (9 years old), sister; “SN”, date of birth unknown (6 years old), sister; “AN”, date of birth unknown (15 years old), brother; “ZN”, date of birth unknown (13 years old), brother; and “AN”, date of birth unknown (11 years old), brother. Additionally, he stated he had a brother “AN” who was killed in Iran in 2002, the exact date of which was unknown to him.
The applicant was asked if he had lived in any country other than his country of nationality. His response was that he moved from Afghanistan to Pakistan 18 years ago. He said he lived in Pakistan for one year. He then moved to Iran, where he lived for one year. He said he then moved back and forth between Pakistan and Iran for the rest of the time.
On 1 October 2008, the applicant applied for a Protection (Class XA) (Subclass 866) visa (“Protection Visa”). The applicant completed and signed several documents in support of his application for the Protection Visa.
On 30 September 2008, the applicant completed and signed a Form 866B “Application for a Protection (Class XA) Visa - Persons included in this application and family composition”.[5] Question 15 of that form asked whether the applicant received assistance in completing it. He responded that he had received assistance from one Ms Stotz, of “Playfair Visa and Migration Services”, in Sydney. In his evidence the applicant readily conceded that he had the assistance of a migration agent when he made his application for a protection visa.
[5] This document is found at pages 190-201 of the ST documents and forms part of document ST 24. It was lodged with the Department on the applicant's behalf and was received by the Department on 1 October 2008.
Further, in the Form 866B, the applicant repeated that his name was “AN” and that he had two sons “JN”, born in 1993 in either Pakistan or Iran, and “KN”, born in 1998 in either Pakistan or Iran. He repeated the details of his six siblings in the same terms as he gave to the officer of the Department at his initial arrival in Sydney on 16 September 2008.
When signing the Form 866B, the applicant declared, amongst other things, that the information he had supplied on or within the form was complete, correct and up to date in every detail, he understood that if he had given false or misleading information then his application might be refused or any visa issued may be cancelled, and that he had read and understood the information supplied to him in the application.
Also on 30 September 2008, the applicant completed and signed a Form 866C, “Application for a Protection (Class XA) visa - Application for an applicant who wishes to submit their own claims to be a refugee”.[6] In that document, the applicant was asked for his full name, which he stated was “AN”. He was also asked if he had been known by any other name to which he replied “Raj”, which name had been endorsed on a false Pakistani passport which he used to leave Pakistan with. This false passport had been organised for him by a person who he paid money to assist him leave Pakistan and travel to Australia. The applicant also stated in the document that between 1990 to July 2008, after escaping from Afghanistan, he and his family lived for a year in Pakistan and then for a year in Iran, then a year in Pakistan and returning to Iran to live for one year, alternating living one year in each country during this period.
[6] This document is found at pages 202-222 of the ST documents and forms part of document ST 24. It was lodged with the Department on the applicant's behalf and was received by the Department on 1 October 2008.
At the end of the Form 866C, the applicant made several declarations. Part 66 of that document is an “Australian Values Statement”. The applicant signed this statement confirming that it had been explained to him that he undertook to respect the values of Australian society during his stay in Australia and to obey the laws of Australia. In Part 67 of the document, “Declaration”, the applicant solemnly declared that, amongst other things, the information he supplied on the form was complete, correct and up to date in every detail and he understood that if he had given false or misleading information, his application may be refused, and any visa issued may be cancelled. Importantly, he made the solemn declaration by virtue of the provisions of the Statutory Declarations Act 1959 (Cth), and subject to the penalties provided by that Act for the making of false statements in statutory declarations, conscientiously believing the statements contained in the declaration to be true in every particular. Underneath the applicant’s signature, it was recorded that the declaration was made before Ms Stotz, a migration agent, who also noted that she was a Justice of the Peace.
In further support of his application for a protection visa, the applicant also completed and signed, on 30 September 2008, a Form 80 “Personal particulars for character assessment”.[7] Once again, in that form, the applicant stated that his name was “AN”. He also stated that his spouse was “FN” and that she was deceased. Additionally, he stated that his father’s name was “EN” and his mother’s name “KN”. The same version of movements between Pakistan and Iran, as has previously been explained, was repeated in that form. His six siblings were identified in the same terms as given to the departmental officer in the interview conducted upon his arrival at Sydney Airport on 16 September 2008. Finally, at part 37 of the Form 80, there was a declaration made by the applicant, underneath which his signature appeared. The applicant declared that the information he had supplied in the form was, so far as he knew or could reasonably find out, correct in every detail.
[7] This document is found at pages 223-33 of the ST documents, which forms part of ST 24. It was lodged with the Department on the applicant's behalf and received by the Department on 1 October 2008.
Additionally, the applicant lodged with the respondent, in support of his application for a protection visa, a tazkira which disclosed his name as “AN”.
On 15 January 2009, the applicant was granted a Protection (Class XA) (Subclass 866) permanent Protection visa.[8]
[8] Pages 234-246 of the ST documents, document ST 25.
On 8 October 2009, the applicant lodged an offshore visa application, proposing his two sons, “KN” and “JN”, for a Global Special Humanitarian (subclass 202 visa) (“GSH visa”). Tazkiras were furnished to the Department, which recorded “AN” as their father and “EN” as their grandfather. These tazkiras were accepted by the Department as proof of the identity of each of the applicant’s purported sons. Also lodged by the applicant in support of this application for visas for his purported sons was a document entitled “Verify of Identification”. That document identified the applicant as the father of “KN” and “JN”.
On 30 April 2011, “KN” and “JN” were granted GSH visas.
On 29 November 2012, in support of his then-fiancée’s application for a Partner (Class UF) (Provisional) (Subclass 309) and Partner (Class BC) (Migrant) (Subclass 100) visas, the applicant completed a Form 40SP “Sponsorship for a partner to migrate to Australia”.[9] Once again, in that form, the applicant stated that his name was “AN”. Additionally, as he had done in the past, he stated that he had previously been married to “FN” and that she was “deceased”. Part 52 of the form 40SP signed by the applicant contained an undertaking given by him acknowledging a warning that giving false or misleading information is a serious offence. He declared that the information he had supplied in the form was complete, correct and up to date in every detail. He additionally agreed that he was aware that any person who provides false or misleading information or who deceives or misleads or who presents a forged document to an Australian Government official may be prosecuted. Finally, he stated he was aware that if false or incorrect information were given on that form, the application of the person he was sponsoring may be refused, and/or any visa granted to that person may be liable to cancellation.
[9] The form is ST 28 at pages 272-280 of the ST documents. It was lodged with the Department on the applicant's behalf.
Additionally, in support of the application for a partner visa for his then-fiancée, the applicant provided a letter dated 30 September 2012, purportedly written by the “Acting General Consul” of the “Consulate General of Islamic Republic of Afghanistan, Quetta”, certifying that the applicant’s wife “FN” had died on 24 June 2003.[10]
[10] The letter purportedly from the Consulate General of the Islamic Republic of Afghanistan, Quetta, dated 30 September 2012, is document ST 26 of the ST documents.
The applicant’s then-fiancée was granted a Partner (Class UF) (Provisional) (Subclass 309) visa on 10 May 2013.[11]
[11] ST 29 at pages 281-3 of the ST documents.
The applicant made an application for Australian citizenship by conferral on 4 December 2014. In support of that application, he completed a Form 1300t “Application for Australian citizenship”.[12] In the Form 1300t, the applicant again stated that his name was “AN”, and that his father’s name was “IN”. Part L of the Form 1300t contained a “Declaration” and a warning in bold fonts that it is an offence under section 50 of the Act to deliberately make, or cause to make, a false or misleading statement, or conceal circumstances in relation to an application. Following that warning, the applicant declared that the information he had supplied in the form was complete, truthful and correct in every detail.
[12] The Form 1300t signed by the applicant on 6 October 2014 is document T 5 of the T documents.
Following the lodgement by the applicant of an application for Australian citizenship by conferral, he was interviewed by departmental officers on 27 June 2017. Several things emerged from this interview. He continued to state that his name was “AN” and that he was born in Afghanistan on 23 October 1968. During the interview, the applicant was shown a photograph of “IW” and initially denied knowing him. Subsequently, the applicant conceded that they were paternal cousins.
On 29 January 2018, by way of a letter sent to the applicant, the Department invited him to comment on adverse information that might lead to a decision to refuse his application to become an Australian citizen.[13] The receipt of this letter prompted the applicant to obtain legal advice.
[13] The letter from the Department to the applicant of 29 January 2018 is document T 12 of the T documents.

On 8 June 2018, under cover of a letter from his lawyers, the applicant lodged with the Department a statutory declaration made on 31 May 2018 (“the May 2018 statutory declaration”)[14]. The contents of the May 2018 statutory declaration are referred to in their entirety here for the full force and effect. Some of the material facts referred to in the document should be identified for the purpose of these reasons.
[14] This statutory declaration of 31 May 2018 is at pages 152-7 of the T Documents which forms part of T 20.
The applicant stated that his name was “SW”. He also stated that when he first arrived in Australia, he gave his name as “AN” and that this information was incorrect. He also conceded that when he arrived in Australia, he gave the wrong information about his family composition. He did this because when he arrived, he was very frightened and did what he had been told to do by people smugglers. There were several other statements or “corrections” made by the applicant in the May 2018 statutory declaration, which included:
(a)his father was “MRW” and his mother was “G”, who died in Afghanistan, whilst his father continues to live in Pakistan;
(b)he has three siblings and seven step-siblings;
(c)“IW” is his brother from the same parents, not his paternal cousin;
(d)his cousin “A” was killed in approximately 2002, in his house in Qum, Iran, and was not his brother;
(e)in approximately 2000, when crossing from Iran to Pakistan, he was detained by the Taliban. He was kept there for approximately a year and released only when United States troops came into the area. He acknowledged that he did not provide this information to the Department when he made his application for a protection visa.
(f)he stated that he was never married to “FN”, and that he was never married before he married his current wife;
(g)“KN” and “JN” are not his sons but his stepbrothers;
(h)the letter purporting to be signed by the Acting General Consul of the Islamic Republic of Afghanistan in Quetta dated 30 September 2012, was false; and
(i)the identity document purportedly issued on 20 October 2010 that he lodged as part of his application, was obtained by a friend who he contacted in Pakistan. He conceded that he did know that this document was not genuine.
After consideration of the material lodged by the applicant, the reviewable decision was made on 27 November 2018 on the grounds that the delegate was not satisfied of the applicant’s identity, in accordance with the provisions of section 24(3) of the Act.
GOOD CHARACTER
The Act does not contain a definition of good character. However, it is a term well-known in the context of immigration law and the general law. The applicant referred to a recent decision of O’Bryan J in the Federal Court of Australia of BOY19 v Minister for Immigration and Border Protection (“BOY19”).[15]
[15] (2019) 165 ALD 39 at [46] – [54].
O’Bryan J gave a very helpful and accurate summary of the law relating to the meaning of the term “good character” in BOY19 at paragraph [51]:
“The following principles can be distilled from the authorities about the meaning of the expression “good character” in s 21(2)(h) of the Act. First, it refers to the enduring moral qualities of a person and not to the good standing, fame or repute of that person in the community, although the latter may provide evidence of the former. The expression is not concerned with the physical or intellectual attributes or abilities of a person. Second, the expression does not have a fixed and precise content. Like other broad statutory standards, such as whether an entity is a fit and proper person to hold a statutory licence or whether a decision is in the public interest, the expression imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statutory provisions … Third, and as a corollary of the second point, the expression requires a judgment as to whether any proved deficiencies in the moral qualities of a person are sufficient to deny the person citizenship.”[16]
[16] Another useful summary of the concept of good character is also to be found in the decision of Lee J in a decision of the Full Court of the Federal Court of Australia in Irving v Minister of State for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431 (“Irving”).
Reference should also be made to Citizenship Procedural Instruction 15 - “Assessing Good Character under the Citizenship Act” (“CPI-15”). This document offers some guidance as to what constitutes good character within the meaning of the section, particularly in the context of the term frequently referred to in the authorities (including BOY19) of “enduring moral qualities”.
Generally, a delegate considering a citizenship application will apply CPI-15 in the absence of a good reason for not doing so.[17] A delegate is generally entitled to adopt such policy to guide her or him in the exercise of the statutory discretion, provided the policy is consistent with the Act.
[17] Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640 per Brennan J.
CPI-15 observes that the phrase “enduring moral qualities” encompasses the following concepts:
(a)characteristics which have endured over a long period of time;
(b)distinguishing right from wrong; and
(c)behaving in an ethical manner, conforming to the rules and values of Australian society.
It also records that the good character requirement necessitates consideration of an applicant viewed in a holistic way; that is, all aspects of his or her life may be relevant to consideration of character.
Critically, CPI-15 also states that a decisionmaker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before the visa application, throughout the time the applicant held a visa, and during the time the citizenship application was lodged and processed.
CONSIDERATION
It is appropriate at the outset of the consideration of this matter to make some observations about the applicant’s evidence from the witness box. The applicant presented as someone who, despite the limited education that he has had, is nonetheless a not unintelligent man. It was readily apparent that he is very much alive to protecting his own interests. As has been apparent from the way he has been able to establish a successful tiling business, employing many people relatively quickly after his arrival in Australia with limited knowledge of the English language, he is also an individual with considerable capacity.
In this context, there were several aspects of the applicant’s evidence that the Tribunal found to be unsatisfactory. Specific findings and observations will be made later in these reasons, but they included his evidence shifting from time to time and his denials about certain matters that were thoroughly unconvincing.
The applicant gave an explanation, both in his various witness statements, the May 2018 statutory declaration and the witness box, as to why he gave incorrect information from time to time. The explanation that he offered arose because he came to Australia by paying people smugglers the sum of $6,000. He stated that he was very frightened when he arrived in Australia, and he did what the people smugglers told him to do.
Reasons were given by the applicant as to why he feared for his life and that of his family. He explained that he and his family were forced to leave Afghanistan in 1990. The key reason for this was because he belonged to a religious minority, being Shi’a Hazara. Members of his family, including an uncle, had been targeted and he was put in jail. He explained that during the period of 1990 to2008 he constantly moved between Pakistan and Iran. This was to avoid persecution, harm and possible imprisonment. He gave evidence of a cousin being killed and he himself being stabbed. Additional evidence was given by him of receiving various threats, which specifically included threats to the entire family. Due to these threats, the applicant stated he not only feared for his own life but the lives of his half-brothers, “J” and “K”, the children of his cousin “A” and for the life of his brother “I”. His evidence was that he had supported these people financially and emotionally over some time and felt responsible for their safety. Therefore, he was scared that they might be harmed and that is why he wanted to assist them to obtain entry to Australia.
Surprisingly, the applicant stated that he did not inform the Department that he had been detained by the Taliban for approximately one year, nor that he had received threats from the mujahedeen when he undertook the initial interview on his arrival in Australia and made his application for a protection visa. His evidence on this topic shifted. In his statements, particularly that of 21 December 2022, he stated this was due to the fact that such events occurred a long time ago and he was too frightened at that time that he would be questioned about details he had forgotten. It seems apparent that he had remembered the incident full well at the time of the interview. In the witness box, his response was “I didn’t remember that. It did not come into my mind, and I did not say anything about it”. Having had the opportunity to observe the applicant in the witness box, the Tribunal finds this explanation thoroughly unconvincing. As noted earlier, the applicant presented as an astute man who was very much alive to protecting his interests. He surely must have known that these particular facts would have been highly relevant to determining whether or not he satisfied the requirements for a protection visa. More probably than not, such facts would have significantly supported his claims for protection.
He said that the people smugglers told him that because he, “J” and “K” and their father were still alive, the only way he could bring “J” and “K” to safety in Australia was to lie about their respective names and say that they were his children. Additionally, the applicant stated that he was told by the people smugglers not to use his true name. It was suggested by them that his brother “I”, who he had lost contact with, could be in any country, so it was better to adopt a false name. They did not explain further to him why he should use a false name. He reiterated that he was frightened at the time and just did what the people smugglers told him to do.
The applicant’s reasons for not correcting the false information that he furnished to the Department on the various occasions referred to were based upon several grounds. He stated that he was concerned that if he told the truth about his real name and family composition in the interview for a protection visa, his application might be refused, and he would be deported. The consequence of this, he felt, would be that he and his family might be killed or harmed. Also, he stated that once he found out his brother, “I”, was in Australia, he was also concerned that his brother’s visa might be affected should he reveal his true name.
Another reason why the applicant said he failed to correct his lies during the citizenship interview conducted with departmental officers on 27 June 2017 was that he was worried that he and his family members, including his children who were born in Australia, would be returned to Afghanistan if the truth was revealed. Should they be returned to Afghanistan, he was concerned that they would face harm.
There are several reasons why the Tribunal views the applicant’s explanations for why he gave incorrect information and did not subsequently correct the information that he provided as unsatisfactory. As noted above, the Tribunal found the applicant’s explanation for his failure to notify the Department about having been held in custody by the Taliban and the threats he had received also unsatisfactory.
In cross-examination, the applicant readily conceded that when he arrived in Australia, he appreciated that this country complies with all of its human rights obligations. He stated he believed that at that time. He even went so far to say that if he was in Iran, or any other country, he would have been beaten. However, in the airport in Australia, the departmental officers gave him food and showed him respect. When specifically asked if he thought government officials in Australia could be trusted and whether this country respected human rights, his response was that yes, they could, and he understood that when he arrived here. When asked why, in the face of these concessions, he still gave a false name without any reason, his only explanation was that he was scared. The Tribunal finds it hard to accept this explanation in the face of his ready concessions that Australian government officials could be trusted, that this country respects human rights and that he was clearly well-treated. It seems unlikely that someone as astute as the applicant would not have told the truth at the earliest possible opportunity.
In his initial interview with the departmental officer on 16 September 2008, the applicant gave an incorrect name for his mother and stated that she died in Pakistan, when in fact she had died in Afghanistan. In cross-examination, he was asked why he said this to the departmental officer. His response was that he did not know, and he did not remember why he said it. This response had an air of unreality to it and was again thoroughly unconvincing.
Even if one were to give the applicant the benefit of the doubt with respect to his interview with the departmental officer at the airport immediately upon his arrival on 16 September 2008, it is extremely difficult for the Tribunal to accept such an explanation for his later conduct, particularly with respect to his completion of the several forms concerning his application for a protection visa which were lodged on 1 October 2008.
By this time, the applicant had the opportunity to receive advice and assistance from a migration agent. It seems very difficult to comprehend, given the way the applicant presents as someone very much alive to protecting his interests, why he did not seek the advice of the migration agent about the fact that he had given false information in his initial interview on 16 September 2008, and whether he should tell the truth in his prospective application for a protection visa. This is particularly puzzling given that his claims for protection clearly had merit.
In the witness box, he was probed as to why in the Form 866C he stated his brother “AN” was killed in Iran. He conceded that “AN” was his cousin and that it was a lie to say he was his brother. When asked why he lied, he stated “[i]t came into my mind like that, and I said it”. When asked if there was a reason for this, his evidence then shifted to, “[n]o I just said it, I didn’t think of it being beneficial or harmful, I just said it”. His evidence then shifted further, and he stated that he did it because he wanted to get “A’s” children to Australia and that was the correct evidence. The applicant’s propensity for his evidence to shift from time to time was an unsatisfactory feature of his time in the witness box.
There was another puzzling aspect of the applicant’s evidence from the witness box. When he was being probed about sponsoring “K” and “J” for their visas, he was asked whether he thought about telling the truth concerning who he and they were. He said many times that he wanted to, but he just got scared and stayed with the status quo. He repeated that he did not wish to put his visa or those of “K” or “J” at risk. He then made the almost bizarre comment that, “[y]es, when you are in detention they say if you lie you will be jailed for 10 years. At the time of interview, they explained to you and get your signature.” The Tribunal cannot accept that such a comment was made to him, either whilst in immigration detention or at the interview. It has all the hallmarks of embellishment and a recent invention.
In cross-examination, the applicant was probed about obtaining the letter of 30 September 2012, purportedly from the “Acting General Consul” from the Consulate General of the Islamic Republic of Afghanistan, Quetta. Initially he stated that he did not remember anything about it. When probed more deeply, he conceded that he did obtain the document. He then went so far as to say, “[i]f you pay them, they will write anything.” He then stated that he arranged for someone to create the document. Initially, he was reluctant to acknowledge that he provided the document in support of his wife’s partner visa application but, when pressed, he reluctantly admitted that he did. This was also not a particularly satisfactory piece of evidence and was also given with a degree of flippancy.
There was another part of the applicant’s evidence which emerged in the witness box that was not very satisfactory. He was probed about the letter dated 29 January 2018 that he received from the Department inviting him to comment on adverse information. In response to a question of whether he was worried about the Department finding out who he really was, the applicant gave a very flippant response that he could have carried on as he had done and, “Immigration would not have found out my real identity”. This was a most unimpressive response.
The applicant contends that he is of good character within the meaning of s 21(2)(h) of the Act. He relies upon several grounds.
Firstly, the applicant has no criminal history in Australia. Apart from the provision of false information to the Department, he has otherwise been honest in his dealings with the Australian government and community. Throughout his time conducting his tiling business in Australia, he has lodged tax returns and paid taxation assessments that have been raised upon the lodgement of such returns. Indeed, several of his tax returns were in evidence to confirm this fact.
Much emphasis was placed upon the many favourable character references that were in evidence before the Tribunal.[18]
[18] These references were from Raz Baqeri, Secretary of the Afghan Football Federation of Australia, dated 10 June 2020; Rishad Fazel, President of Barton United Football Club, dated 25 June 2020; Ali Behsudi, Community President of the Hazara Australian Community Association of Victoria, dated 9 July 2020; Rahim Shah Zaidi, President of Ghan Kilburn City Football Club; Murtaza Hussaini, Community Officer at Mahdi Organisation in South Australia, dated 8 July 2020; Naweed Jafari, President of Nawin Cultural and Social Association, dated 5 July 2020; Zabii Mazoori, Treasurer of Victorian Afghan Football Association, dated 30 June 2020; Abdullah Neshat, President of Nawin Cultural and Social Association, dated 7 June 2018; Adrian Pantea, Director of Authentic Tiling Pty Ltd; Shah Wali Rahimi, President of Fallad Community Inc., dated 10 July 2020; Abdul Alizada, Secretary of Kateb Hazara Association Inc., dated 13 July 2020; and Raz Baqeri, Secretary of Richmond Soccer Club.
Secondly, the applicant has established a tiling business, which has been quite successful. The business started in August 2012. Prior to the onset of COVID-19, it employed approximately 45 people. The business currently employs what the applicant describes as 11 “sole traders”, nine of whom are not family members. Otherwise, all of the employees are members of the Afghan community in Melbourne. He has emphasised that the business creates opportunities for members of the Afghan community, whose English language proficiency is limited and would more likely than not be unemployed but for the opportunity that he has given them. Another reason why the applicant says that the number of staff members employed by his business is considerably lower than it was pre-COVID-19 is that once he received the notice from the Department that it was considering cancelling his visa, he spoke with builders and other employers who retained the services of his business to make sure that they were ready to make alternative plans in the event that his visa was cancelled and he was unable to continue working. He stated that this is causing the business to take “an extra hit”. The fact that the applicant, on behalf of his business, informed some of his business contacts that his visa might be cancelled was also confirmed in the statement of MZM, made 13 February 2023, which was in evidence.

Thirdly, the applicant relies upon what he describes as his generosity in providing time and financial support to a variety of sporting and cultural associations. Details of these activities engaged in by himself, his wife and his children are articulated in paragraphs 27 to 34 of the applicant’s statement, dated 21 December 2022. Additionally, the several character references that were in evidence and referred to previously, frequently came from sporting and community group representatives, or officeholders who were able to attest to the contribution that the applicant has made to those organisations over several years since he has resided in Australia. The Tribunal has no reason to doubt the contents of those references.
Finally, the applicant has given considerable evidence about his dedication to his family and his family unit that has now been established in Australia. He married his fiancée, and they now have three children, all born in Australia. They are respectively eight, seven and four years old. The two eldest attend a school situated in the South-eastern suburbs of Melbourne. Additionally, the applicant has employed and supported his half-brothers.
Concerning the provision of false information and documents to the Department, the applicant states that the weight that should be attributed to this fact is moderated by reason of several factors.
The first factor relied upon the applicant is the elapse of time since he last provided misleading information to the Department. The initial interview, as has been noted above, occurred with a departmental officer at Sydney Airport on 16 September 2008 and the last occasion on which misleading information was provided was during the interview with departmental officers concerning his citizenship application on 27 June 2017, which is over five years ago.
The second factor relied upon by the applicant is that he has expressed sincere regret and remorse for what he did. It is also pointed out that he has made full admissions.
The third factor relied upon by the applicant to explain what he did, which was put in several different ways, was that the initial provision of false information was done under difficult circumstances. Counsel for the applicant in closing even went so far as to say that the applicant arrived in Australia under some degree of duress. It was contended that the applicant was concerned about his possible removal to Afghanistan and that his fears concerning what might happen to him were he to return were real and justified. It is contended that the Hazaras are a persecuted minority in Afghanistan and therefore at risk.
In this context, it was also submitted that the applicant was desperate to assist “J” and “K” to similarly escape persecution where they were in Quetta. Once again, it was submitted that these were well-founded fears. Reliance was placed upon a passage from the decision of Gummow and Hayne JJ in Abebe v Commonwealth of Australia:[19]
… the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.
[19] (1999) 197 CLR 510 at [191]. Reference was also made to the decisions of Djuraj v Minister for Immigration and Multicultural Affairs [2001] FCA 986 at [30] and Minister for Immigration and Multicultural Affairs and Indigenous Affairs v SGLB [2004] HCA 32 at [73].
Finally, it is contended that the applicant’s failure to take steps to tell the truth, correct or otherwise, occurred in the context of his fear that he, his fiancée (now wife), his children and his half-brothers would face the prospect of being returned to Afghanistan.
The Tribunal is unable to reach a conclusion that the applicant is of good character within the meaning of s 21(2)(h) of the Act.
There are several reasons for reaching this conclusion. The Tribunal accepts that, at least upon his arrival in Australia, the applicant was genuinely scared about what the future held for him, given his previous experiences. His experiences included not only being held as a prisoner of the Taliban for approximately one year in Afghanistan, but also the sheer vicissitudes of life that he faced by living a largely itinerant existence between Pakistan and Iran, eking out a meagre living and being unable to return to his homeland where he would be persecuted by reason of belonging to the Hazara minority. There were a number of publications before the Tribunal that described the various threats and forms of discrimination that Hazaras face not only in Afghanistan but also in Pakistan.[20]
[20] For instance, a publication entitled "UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan", July 2009, described societal discrimination, direct threats and persecution that the Hazara community face in Afghanistan. This included threats from what was described as the rising power of warlords. There was also in evidence a document from the International Crisis Group, Asia Report No 164, "Pakistan: The Militant Jihadi Challenge". That document also described sectarian attacks targeted against the Hazara community. The "DFAT Thematic Report on Political and Security Developments in Afghanistan” (August 2021 to January 2022) reported that DFAT assesses that Hazaras in Afghanistan face a high risk of harassment and violence from both the Taliban and Islamic State Khorasan Province (ISKP), on the basis of their ethnicity and sectarian affiliation. It reported that members of the Hazara community have suffered from ISKP terror attacks and Taliban violence.
However, it is quite apparent that the applicant, who as the Tribunal has observed presents as someone acutely alive to his interests, was well aware that Australia is a peaceful, law-abiding, prosperous and generous nation. These were driving reasons for him wishing to come here. He readily conceded in cross-examination, as noted previously, that he appreciated that Australia complies with all of its human rights obligations and that he believed this at the time of his arrival. His contrast between his treatment in Australia and what he expected it to be elsewhere, where he expected to be beaten, was telling. He acknowledged that he was well treated by departmental officers as soon as he arrived in Australia. He conceded that government officials in Australia could be trusted. This should have encouraged him to tell the truth from the outset and, if not at the outset, certainly by the time he lodged his application for a protection visa when he had the assistance of a migration agent.
Given the applicant’s astuteness, his acknowledgement that Australian government officials can be trusted, that Australia is a country that complies with its human rights obligations and that he was well treated upon his arrival by departmental officers, it is puzzling to the Tribunal that the applicant did not, at the very least, raise with the migration agent who assisted him complete forms in support of his application for a protection visa whether he should reveal the true facts in his application. It does not reflect well on him at all.
The Tribunal also views rather seriously the fact that the applicant has made a false statutory declaration, knowing full well that penalties apply if he did so. This fact alone flies in the face of the Australian values statement to which the applicant pledged his loyalty.
The applicant also, as has been previously outlined, made false declarations on several official forms and documents that by his signature the contents of those forms and documents were completely truthful and correct in every detail, or like words, when to his knowledge, they clearly were not.
It is of much concern that the applicant has knowingly procured false documents to mislead the Department. The procuration of a false document purporting to be from the Consulate General of Afghanistan, dated 30 September 2012, on the applicant’s own admission, was a conscious, deliberate and deceitful act.
Whilst it is correct to say that the last time that the applicant furnished false information to the Department was over five years ago, it was nonetheless a pattern of repeated and significant conduct over a time span of approximately nine years. During that time, it must have been surely apparent to the applicant that Australia is a tolerant nation where the rule of law prevails. He had ample opportunity to consider his options, yet he persisted with a pattern of lies and deceit. The history has been set out in some detail previously in these reasons. Although this pattern of behaviour last occurred over nine years ago, is a pattern which endured over a long period of time and is not indicative of someone who can distinguish right from wrong, nor behave in an ethical manner, conforming to the rules and values of Australian society. In terms of the applicant’s enduring moral qualities, this pattern of behaviour and, indeed, his responses to this pattern of behaviour whilst in the witness box do not reflect well upon him.
The Tribunal acknowledges that the applicant has no criminal history in Australia. It also acknowledges that, otherwise, he has been honest in his dealings with the Australian Government and the community, particularly in the context of reporting and paying his taxes. It is to his credit that he has worked hard and established a successful business that has developed significant goodwill in the building industry. It is also to his credit that he has, in the development of these business endeavours, seen fit to employ members of the Afghan community who would otherwise find it difficult to obtain employment due to language and other barriers. It is significant that his tiling business continues to, and has, from time-to-time, employed significant numbers of people. The Tribunal also acknowledges, to the applicant’s credit, that he has informed builders and other companies with whom his business does business that he was facing the possibility of his visa being cancelled. Taking that step clearly could not have been easy.
The Tribunal also acknowledges the obvious contribution that the applicant has made to the community and that these contributions have been made in the context of developing the connections of members of the Afghan community in the Australian society. There were many letters in support of the applicant’s contributions, both in a cultural and a sporting setting, to the Australian community. In various ways the authors spoke highly of the applicant’s personal qualities. However, save for the statement of MZM, who acknowledged that he was “aware of why [the applicant]’s visa was cancelled and the lies he told”, none of the other letters of support referred to the authors being aware of why the applicant’s visa was being cancelled, nor of the false statements or misleading information he had provided to the department. This must, to some extent, limit the weight that the Tribunal can place upon these references.
The Tribunal acknowledges and has taken into account the fact that the applicant has established a cohesive family unit in Australia. It is mindful of the fact that he is now the father to three children who have been born here. There is also his wider family situated here, for whom he has provided considerable assistance. It is understandable, but no excuse, that he failed to take steps to tell the truth, or otherwise correct the false statements and information that he had provided to the Department because he feared that his wife, children and half-brothers would face the prospect of being returned to Afghanistan. However, once again, it should be repeated that this pattern of misleading and deceptive conduct on his part occurred over many years, and certainly by a time when he must have realised that an obligation to reveal the truth was cast upon him. Yet for some time he allowed the deception to continue. The gravity of his failure to tell the truth is amplified by the evidence he gave in the witness box, where he acknowledged that Australia is a country that complies with all of its human rights obligations and that government officials in Australia could be trusted.
The Tribunal accepts that the applicant’s expressions of regret and remorse for his actions are genuine. However, he must face the consequences of those actions, nonetheless.
The references that have been provided by the applicant, when one considers the approach adopted by Lee J in Irving, and O’Bryan J in BOY19, establish the good standing, fame or repute of the applicant in the community. However, these do not necessarily establish his enduring moral qualities as contemplated by the authorities previously referred to, nor the CPI-15. Thus, in this context, it is possible that an applicant might be a person otherwise considered to be of good character and in other aspects of his life conduct himself in a way that would be recognised as good, but still be classified or identified as of bad character and therefore unsuccessful in his application in an immigration sense.[21]
[21] ReDovey and Minister for Immigration and Multicultural Affairs [2001] AATA 935 at [27].
Overall, when the totality of the applicant’s impugned conduct, which has been outlined above, is considered, the Tribunal finds it does not reflect well on his enduring moral qualities and character as identified in the several authorities referred to and, of course, the CPI-15. This finding is notwithstanding the substantial body of evidence which establishes that in other aspects of his life, the applicant has followed the rule of law of this country, made a significant contribution in trade and commerce and, similarly, a significant contribution in a social and cultural setting. Nonetheless, a person of good character would not have engaged in the repeated acts of misleading and/or lying to a government agency as he did to the Department over many years. This is particularly so when he knew at all times that Australia complies with all of its human rights obligations, that government officials in Australia could be trusted and that it is a nation that respects human rights.
The pattern of the applicant’s conduct which has endured over many years including his conduct in the witness box during the hearing of this application, does raise the question of whether he genuinely distinguishes right from wrong and, in this context, he has not behaved in an ethical manner at all times, nor conformed to the rules and values of Australian society to which he made a declaration to adhere.
In such a setting, the Australian community would expect, given the proven and admitted misconduct on his part over many years, that Australian citizenship would not be conferred upon him at this time.
The Tribunal notes that the applicant can apply for Australian citizenship in the future. As was observed by Lee J in Irving, a person who has been found to be of bad character may nonetheless show that he or she has reformed and become a person of good character.
DECISION
By reason of the foregoing matters, the Tribunal affirms the reviewable decision.

I certify that the preceding 96 (ninety-six) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

........................[sgd].........................
Associate
Dated: 14 March 2023

Dates of hearing:
15 February 2023

Counsel for the Applicant

Mr Mathew Kenneally

Solicitor for the Applicant:

Advocate for the Respondent:

Solicitor for the Respondent

Clothier Anderson Immigration Lawyers

Mr Keith Sypott

Australian Government Solicitor