Warsame and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

[2023] AATA 1382

Warsame and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 1382 (29 May 2023)

Division:GENERAL DIVISION

File Number:          2022/5730

Re:Mohamed Omar Warsame

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:29 May 2023

Place:Melbourne

The Tribunal sets aside the decision under review and remits the matter to the Respondent for reconsideration with the direction that the Applicant, Mr Mohamed Omar Warsame, satisfies the requirement in paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth).

........................................................................

Dr L Bygrave, Member

CATCHWORDS

CITIZENSHIP – refusal of an application for Australian citizenship by conferral – section 21(2)(h) of Australian Citizenship Act 2007 – whether Applicant is of good character – decision under review set aside

LEGISLATION

Australian Citizenship Act 2007 (Cth)

CASES

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

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

SECONDARY MATERIALS

Australian Citizenship [Policy Statement] (27 November 2020)

Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (26 February 2021)

REASONS FOR DECISION

Dr L Bygrave, Member

29 May 2023

INTRODUCTION

1. The Applicant, Mr Mohamad Omar Warsame, made an application for Australian citizenship by conferral on 9 August 2016 in accordance with section 21 of the Australian Citizenship Act 2007 (Cth) (the Act).

2. On 30 June 2022, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Minister) refused Mr Warsame’s application for Australian citizenship on the basis that he did not satisfy paragraph 21(2)(h) of the Act, which requires that he ‘must be of good character’ at the time of the decision.

3. On 5 July 2022, Mr Warsame lodged an application for review of the decision to the General Division of the Administrative Appeals Tribunal (the Tribunal).

4. The matter was heard in Melbourne on 15 May 2023. Mr Warsame had legal representation; he attended the hearing and gave oral evidence in person.

   RELEVANT LEGISLATION AND POLICY

5. Section 21 of the Act sets out the provisions for the application and eligibility for Australian citizenship: subsection 21(1) provides that a person may make an application to the Minister to become an Australian citizen. Subsection 24(1) of the Act states that:

   If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

6. The general eligibility requirements for Australian citizenship are stipulated in subsection 21(2) of the Act and relevantly include:

   (2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

   …

   (h) is of good character at the time of the Minister’s decision on the application.

   Australian Citizenship [Policy Statement] and Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act

7. The term, ‘good character’, is not defined in the Act; however, policy guidance can be found in the Australian Citizenship [Policy Statement] (the Citizenship Statement).

8. The Citizenship Statement outlines the overarching legislative requirements for the process of becoming an Australian citizen, stipulates the rights and responsibilities of citizenship, and lists a framework of related documents. These documents include Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (CPI 15) that was reissued on 26 February 2021.

9. CPI 15 provides policy guidance on the interpretation and application of the good character requirement in the Act. The Full Federal Court decision in Irving v Minister for Immigration, Local Government and Ethnic Affairs is cited as follows as guidance to the definition of good character:

   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 to 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 public 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. [1]

   [emphasis added]

   [1] (1996) 68 FCR 422 at [431]-[432].

10. CPI 15 states that the phrase ‘enduring moral qualities’ encompasses the concepts of characteristics that have endured over a long period of time, distinguishing right from wrong, and behaving in an ethical manner including conforming to the rules and values of Australian society.[2] This good character requirement necessitates considering a person ‘in a holistic way’ with all aspects of their life potentially relevant to the deliberation of their character.[3] An assessment of good character involves a person demonstrating ‘good enduring/lasting moral qualities’ both before and throughout the period they held a visa and their citizenship application process.[4]

    [2] CPI 15 – Assessing Good Character under the Citizenship Act, section 3.3.

    [3] CPI 15 – Assessing Good Character under the Citizenship Act, section 3.3.

    [4] CPI 15 – Assessing Good Character under the Citizenship Act, section 3.3.

11. The role of the character requirement in a citizenship application is also explained by Deputy President Breen in Re Fenn and Minister for Immigration and Multicultural Affairs:

    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 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.[5]

    [5] [2000] AATA 931 at [8].

12. CPI 15 sets out a non-exhaustive list of characteristics of a person of good character. Relevant to this matter, a person of good character would:

    ·‘be honest…’; and

    ·‘not practice deception or fraud in dealings with the Australian Government, or other organisations, for example [by] intentionally providing false personal information’.[6]

    [6] CPI 15 – Assessing Good Character under the Citizenship Act, section 4.

13. I note that CPI 15 states the application of these principles should be considered in view of the facts of the particular case and ‘should not be applied rigidly or inflexibly’.[7] Further, it is necessary to consider any other information relevant to a person’s character such as their family life, whether they are responsibly employed and paying taxes, the time that has elapsed since their offending and whether they have expressed genuine remorse for their past wrong doing, and any mitigating factors. CPI 15 articulates this process as follows:

    Ultimately, a decision-maker should weigh up all the factors relevant to an assessment of an applicant’s character, which might include a number of factors some of which support reaching an adverse conclusion about a person’s character and some of which support reaching a positive conclusion about a person’s character.[8]

    [7] CPI 15 – Assessing Good Character under the Citizenship Act, section 4.

    [8] CPI 15 – Assessing Good Character under the Citizenship Act, section 4.

    EVIDENCE

14. Mr Warsame is 33 years old. He was born in Mogadishu, Somalia and first arrived in Australia in May 2012 as the holder of a child (subclass 101) visa.

15. The Minister’s delegate decided on 30 June 2022 that Mr Warsame is not of good character on the basis that he had presented counterfeit school records from Kenya at a citizenship interview and had given ‘false and misleading information’ about the whereabouts of his ‘real parents’.[9] For completeness, I note the counterfeit school records were also the subject of a previous hearing at the Tribunal (differently constituted) on 25 August 2021 in relation to whether Mr Warsame satisfied the criteria in subsection 24(3) of the Act about his identity. (The Tribunal was satisfied of Mr Warsame’s identity under subsection 24(3) of the Act and remitted the matter to the Respondent).

    [9] Exhibit T-T2, 16.

    Mr Warsame’s statutory declaration of 6 April 2023

16. Mr Warsame filed a statutory declaration on 6 April 2023 in which he told his ‘real story, because [he] knows[s] it is the right thing to do, and [he doesn’t] want to live [his] life in fear of being discovered anymore’.[10] Mr Warsame’s statutory declaration included:

    [10] Exhibit A1, paragraph 3.

    ·Details about his biological parents and younger biological siblings. Mr Warsame stated the civil war in Somalia commenced in 1991 and due to the fighting, his biological parents went to live in Cabuduwaq in the central region of Somalia, and  left him in the care of his adoptive mother in Mogadishu so that he could continue his education. Mr Warsame was a child at school at this time.

    ·Mr Warsame had ‘terrifying experiences’ due to the war, and he and his adoptive mother and her children moved regularly between Mogadishu and Jawhar ‘to seek refuge from the violence’.[11]

    [11] Exhibit A1, paragraph 12.

    ·A recount that Mr Warsame’s adoptive mother took him and her children to Kenya due to the intensity of the war. In June 2006, they arrived at the refugee camp in Hagadera (Dadaab) and had interviews with UNHRC officers who gave them refugee identity cards: they were able to go to school and had access to basic food and accommodation.

    ·Information about Mr Warsame’s schooling, including that he:

    ostudied in Mogadishu at a school known as Al-Imra school;

    oattended Iftin primary school for standard 7 and 8 in Kenya for two years (from late 2006 to the end of 2008) and Gorgor Tuition School after hours, but ‘did not perform very well’ due to recently fleeing war and hardship;[12]

    oneeded a certificate that he had graduated high school in 2009 and the headmaster of Iftin primary school connected him with some teachers who said they could help him pass the exam and get the certificate in return for some money;

    ocompleted the exam and graduated with a certificate that he had completed both primary and secondary school – these documents ‘were certified by the schools’ and provided to him ‘directly by the schools’ and ‘appeared to be genuine’;[13] and

    oenrolled in a bridging course at Bilal Galaxy College in Nairobi Kenya in February 2010, where he studied until he came to Australia with his adoptive mother.

    ·Mr Warsame’s acknowledgement that he knew his biological parents were alive and where they were living. He was unable to reunite with his biological parents as boys were ‘forcefully’ being recruited ‘to fight for Alshabab and Islamic factionists’,[14] but had limited contact with them by telephone.

    ·Mr Warsame’s recount that his adoptive mother sponsored his child visa; he was granted a child visa on the basis that his biological ‘parents were missing’ but they were ‘alive and living in Somalia’ although they had ‘left [him] as a child to live with [his] adoptive mother.[15]

    ·Details about Mr Warsame’s time in Australia including his estrangement from his adoptive mother since late 2012, his employment history, and his health issues.

    [12] Exhibit A1, paragraph 18.

    [13] Exhibit A1, paragraph 19.

    [14] Exhibit A1, paragraph 16.

    [15] Exhibit A1, paragraph 4.

17. At the hearing, Mr Warsame said that he had maintained lies about his schooling in Kenya and whether he knew his biological parents were alive but decided in about March 2023 to tell the truth. He explained that he initially told the lies to protect his adoptive mother as she initiated the story that he did not know whether his parents were alive so that he could obtain a child visa and come with her to Australia. He said he feared that if he did not obtain a child visa, he would not be able to come to Australia and would be sent back to the refugee camp in Kenya.

18. Mr Warsame wrote in his statutory declaration that he apologises for his actions and ‘deeply regret[s] what [he] did’ as it has brought him ‘nothing but hardship, stress and uneasiness since [he] arrived in Australia’.[16]

    [16] Exhibit A1, paragraph 29.

    Character references

19. CPI 15 provides limited guidance about the weight to be attributed to character references, noting only that less weight should not be attributed to a character reference ‘merely because the text does not contain an explicit statement of support for the applicant acquiring Australian citizenship’.[17]

    [17] CPI 15 – Assessing Good Character under the Citizenship Act, section 14.1.

20. Mr Wasame filed statutory declarations dated 5 and 6 April 2023 from three friends in of support of his good character. These declarations stated Mr Warsame:

    ·is a ‘very good, honest man’ and has realised the ‘gravity of what he has done’ by not telling the truth;[18]

    ·attends Friday night prayers and he is ‘an important member of the Somali community’, ‘has a good attitude’, ‘works hard’ and is a ‘very honest person’ who was ‘confused’ and ‘felt bad about hiding the truth from the Department’;[19] and

    ·is a ‘good person and an active member’ of the community who ‘has not engaged in any criminal conduct’ and is ‘trustworthy’.[20]

    [18] Exhibit A2.

    [19] Exhibit A3.

    [20] Exhibit A4.

    CONSIDERATION

21. The sole issue for determination is whether Mr Warsame satisfies paragraph 21(2)(h) of the Act, that he is of good character at the time of the decision.  

22. The Respondent contended that Mr Warsame is not of good character because he has told and maintained lies about his schooling and his biological parents. These lies included him making statutory declarations that he believed the school certificates were genuine and providing declarations from two individuals in Somalia that set out a false story about him being reunited with his biological parents.[21]

    [21] Exhibit R2.

23. I accept that Mr Warsame has been complicit in and maintained lies about the schools he attended in Kenya and his knowledge of the whereabouts of his biological parents. I further accept that Mr Warsame has now corrected these lies in his statutory declaration dated 6 April 2023. I concur with the Respondent that, as set out in CPI 15, a person of good character should not provide false personal information in their dealings with the Australian Government or other organisations. However, I also acknowledge that Mr Warsame has now told the truth about both his education and his biological parents, and these lies have caused no harm to any other person.

24. In considering the evidence, I am satisfied that there are extenuating circumstances that explain and provide context to Mr Warsame’s lies. I note that Mr Warsame was both young and under the care of his adoptive mother when he obtained the school certificates, which he needed to proceed with his education. I further note that Mr Warsame would not have received a child visa with his adoptive mother if they said his biological parents were alive; this declaration was made in circumstances where Mr Warsame was raised by his adoptive mother, had minimal contact with his biological parents since he was a young child and was unable to reunite with his biological parents due to the civil war in Somalia. Mr Warsame also experienced the trauma of war and violence in Somalia until he was 16 years old, and then lived in a refugee camp in Kenya before he arrived in Australia aged 22 years.

25. Mr Warsame has lived faultlessly in the Australian community since May 2012. He has maintained consistent employment, paid taxes and contributed to the Somali community in Australia. He has no history of criminal or other offending behaviour and no driving record. Having experienced a childhood of war and trauma in Somalia, I consider that he has demonstrated initiative, courage and resilience in establishing his life in Australia.

26. Weighing all the evidence and considering the relevant circumstances, I am satisfied that Mr Warsame is of good character at the time of the decision as required by paragraph 21(2)(h) of the Act.

    DECISION

27. The Tribunal sets aside the decision under review and remits the matter to the Respondent for reconsideration with the direction that the Applicant, Mr Mohamed Omar Warsame, satisfies the requirement in paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth).

I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the written reasons for the decision of Member Dr L Bygrave

.................................[sgd].......................................

Associate

Dated: 29 May 2023

Date(s) of hearing:	15 May 2023
Counsel for the Applicant:	Mr Angel Aleksov
Solicitors for the Applicant:	Ms Rayan Hazim, Bardo Lawyers
Solicitors for the Respondent:	Mr Adam Cunynghame, Sparke Helmore Lawyers