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

[2022] AATA 2297

WPSQ and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2022] AATA 2297 (19 July 2022)

Division:GENERAL DIVISION

File Number:          2022/0907

Re:WPSQ

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:19 July 2022

Place:Melbourne

Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.

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

Senor Member D. J. Morris

Catchwords

CITIZENSHIP – where applicant is citizen of Afghanistan – where applicant applied for Australian citizenship by conferral – where applicant  had also made applications for visas for wife and children – information proffered about family composition – siblings – activities prior to settling in Australia – where applicant admits incorrect information provided – motivation for providing incorrect information – consideration of Citizenship Procedural Instructions – importance of truthfulness in dealings with Department – opportunities for applicant to correct wrong information not taken – tribunal must reach positive state of satisfaction as to good character – decision under review is affirmed

Legislation

Administrative Appeals Tribunal Act 1975, ss 35, 37

Australian Citizenship Act 2007, Preamble, ss 21, 24, 52

Cases

BOY19 v Minister for Immigration and BorderProtection [2019] FCA 574
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Drake and Minister for Immigration and Ethnic Affairs (No.2),Re: (1979) 2 ALD 634
Irving v Minister of Immigration, Local Government and Ethnic Affairs [1996] FCA 1660

Secondary Materials

Department of Home Affairs – Citizenship Procedural Instruction 15 – Assessing character under the Citizenship Act – Reissued 26 February 2021

REASONS FOR DECISION

Senor Member D. J. Morris

19 July 2022

INTRODUCTION

1. On 30 June 2022 the Tribunal made an order under section 35 of the Administrative AppealsTribunal Act 1975 (‘the AAT Act’) prohibiting the publication of the name of the Applicant in these proceedings and assigning to him the anonym ‘WPSQ’. The reason for this is that he holds a protection visa which means the Australian Government has accepted he is owed protection. Certain information in these reasons which might tend to identify the Applicant have been anonymised.

2. On 14 May 2015 WPSQ lodged an application for Australian citizenship by conferral.  On 10 January 2022 a delegate of the then Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs refused WPSQ’s application on the basis that he did not meet the good character requirement under section 21(2)(h) of the Australian Citizenship Act 2007 (‘the Act’).  His application was therefore refused under section 24 of the Act.  From 1 June 2022, with the appointment of the new federal ministry, the relevant minister is the Minister for Immigration, Citizenship and Multicultural Affairs.

3. On 7 February 2022 the Applicant applied for the Tribunal to review the refusal decision.  His entitlement so to do is in section 52(1)(b) of the Act.

   HEARING

4. A hearing was held on 12 July 2022.  The Applicant was represented by Mr Rasheed Qasimi, a registered migration agent, of Help Visa & Migration Services. The Respondent was represented by Ms Samantha Liddy, a solicitor of Sparke Helmore Lawyers.  The Applicant gave evidence and was cross-examined.  The Tribunal appreciates the assistance of an interpreter in the Hazaragi language. No other witness was called by either party.

5. The Tribunal admitted into evidence the following documents:

   a)A volume of documents lodged by the Respondent under section 37 of the AAT Act (‘T’ documents) – Exhibit R1;

   b)Statement on behalf of the Applicant lodged on 10 June 2022 (Exhibit A1);

   c)Letter from Mr Ali Murad, President, Goulburn Valley Afghan Association, dated 12 October 2021 (Exhibit A2); and

   d)Letter from Mr Hussain Rohani, Public Officer of the Rasul Akram Association of Victoria Inc., dated 29 May 2022 (Exhibit A3).

6. The Tribunal also took into account a Statement of Facts, Issues and Contentions lodged by the Respondent on 27 May 2022.

   Background

7. WPSQ arrived in Australia as an unauthorised maritime arrival in 2010.  In February 2011 he was granted a protection visa on the basis that he feared harm if returned to Afghanistan.  In August 2011 WPSQ applied for refugee visas for his wife and six named children, including a child who I will call ‘AM’ born in February 1997, who was the oldest of the six listed.  This visa was refused in September 2013.

8. In December 2014, WPSQ applied for a partner visa for his wife and, on this occasion, five named children.  AM was omitted from this application.  That application is still before the Department of Home Affairs (‘the Department’).   As mentioned above, WPSQ applied for Australian citizenship by conferral on 14 July 2015.

   The information that was unclear or inconsistent

9. On 16 April 2021 the Department wrote to WPSQ inviting him to comment on adverse information, noting that before his application for Australian citizenship could be approved, the Minister’s delegate must be satisfied that he is of ‘good character’ under section 21(2)(h) of the Act, and of his identity, under section 24(3) of the Act.  The Department noted that there were discrepancies in the information WPSQ had provided in his Entry and Biodata interview relating to his application for a protection visa; his application for refugee visas for his immediate family; his application for a partner visa for his wife and immediate family; and the application he had lodged for citizenship.  The Department identified discrepancies in several pieces of information: (i) WPSQ’s family composition; (ii) the names of family and their dates of birth; (iii) whether he had siblings in Australia; and (iv) his residence and employment in Iran.

   The admissions of the Applicant

10. In his Entry interview in 2010 QPSQ declared that he had five sisters, two of whom were deceased.  Two sisters lived in Afghanistan, one lived in Pakistan.  He also declared that he had two younger brothers, living in Pakistan. 

11. On 7 July 2021 WPSQ responded to the Department’s invitation and provided a statutory declaration declared on 5 July 2021 (R1, pp 85-87).  In it, he declared that his immediate family consists of his wife, four daughters and one son, all of whom are citizens of Afghanistan and all of whom are residing in Pakistan.  He further declared that his parents are deceased and that he had three living sisters.  One sister he said is still in Afghanistan, one lives in Iran and the other in Pakistan.  In his oral evidence at the hearing, WPSQ told the Tribunal that one sister has since emigrated to Australia.  He also declared that he has two additional brothers, both of whom are in Australia.  One brother came to Australia in 2000; the other in 2010.

12. WPSQ declared that he had a dangerous journey to Australia by boat and that he had provided ‘all the correct information’ to the UNHCR in Indonesia (which the Tribunal takes to mean about his family composition).  WPSQ wrote:

    People who I had met on the way to Australia were of the opinion that we should not provide the same information when arrived in Australia that we had provided to the UNHCR in Indonesia.  This may result into the refusal of our protection visa application in Australia.  I am illiterate as I did not have any formal education in my home country.  I could not decide myself to provide correct information.  I listened to other and made the wrong decision to provide incorrect information.

    [AM], who I had stated as my son in my protection visa application and humanitarian visa application, is my nephew (sister’s son).  My sister had asked me to help one of her sons to migrate to Australia.  My sister and her family had suffered a lot due to the persecution we faced in Afghanistan.  I wanted to help her son to have a better life and get proper education.

13. WPSQ went on to discuss the dates of birth of his wife and children and explained that their ages were determined by the taskera issuing officer at the taskera office, and that he did not believe the dates provided for his wife and children were correct.  He declared, “Since it is not common for people born in Afghanistan to record births, majority of those born in Afghanistan and Pakistan do not know their dates of birth.”

14. WPSQ then declared as follows:

    Undeclared siblings in Australia

    My brother [name redacted] arrived in Australia in early 2010.  Another brother [name redacted] had come to Australia in around 2000.  The people I met in Indonesia and during my journey to Australia would suggest that providing details of family who resided in Australia would jeopardise the chance of being given asylum in Australia.  They said it would result into the refusal of the protection visa application.  I know it was not the right decision to make but I was worried that my application would be refused.  I listened to others and did not provide his details of my brothers because people suggested me not to disclose family members in Australia.  It was common belief held by many asylum seekers.  I did not know the laws and did not have the chance to get proper legal advice when I newly arrived in Australia.

15. WPSQ went on to say that he only provided approximate dates about when he worked in Iran (where he said he worked illegally) until 2005.  He declared:

    I was imprisoned by the Taliban in 2005 and kept in custody until 2008.  I am not sure about the years I spent in Iran and in Taliban custody.  When I arrived in Australia by boat, like many asylum seekers, I was not well physically, emotionally, and psychologically.  I could not recall dates and events correctly.  I do not know why there were inconsistencies in the information provided.

    The Applicant’s submissions at the hearing

16. In the statement (Exhibit A1), WPSQ’s representative wrote:

    The applicant accepts that he provided incorrect information to the Department.  The applicant accepts the responsibility for it.  The applicant would like to request the Tribunal to consider the reasons behind his actions.

    He had escaped a country where he faced persecution on a daily basis due to the ethnicity and religion that he belongs to.  The applicant is a Hazara by ethnicity and Shia religion.  The members of his ethnic and religious group have been persecuted throughout the history in  Afghanistan.  He had no option other than to take the journey by boat to Australia.  The applicant is not educated.  When he left his country and came to Australia, all he had in his mind was to find safety for himself and his family members.  In such a circumstance, the applicant could not decide to make the right decision.  His decision to provide incorrect information was include by those who were around him during his journey towards Australia.  For example, it was a common belief among the asylum seekers not to disclose who resided in Australia.  They believed it would negatively affect the person’s protection visa application’s outcome.  The applicant could not make the right decision to say that he had family in Australia because his decision was including the belief held by the majority then.  He could not correct this information later as well because everyone who he consulted advised him not to change the information that he already provided.

    He accepts that he provided incorrect information and would like to apologies both to the Department of Home and to the Tribunal.  He would like to request the Tribunal to consider the circumstances in which the applicant the left his country and arrived in Australia when assessing his past actions.  The applicant would like to request the Tribune to give him the opportunity to become an Australian citizen by remitting the Department’s decision…

    (Errors in original; minor spelling errors emended.)

    Identity not now in question

17. It is relevant to make clear that the Minister’s Department now accepts WPSQ’s identity was satisfied, so the prohibition in section 24 of the Act does not apply to him.  However, the delegate was not satisfied WPSQ was of ‘good character’, so refused his application for citizenship on that basis.

    CONSIDERATION

    The legislative provision

18. Section 21(2) of the Act refers to general eligibility for persons making an application to become an Australian citizen.  Section 21(2)(h) states:

    (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.

    (Emphasis added.)

19. In reviewing a reviewable decision, the Tribunal is shod in the shoes of the decision-maker. Which means, in this case, that it must be satisfied that WPSQ is of good character at the time of its decision on the application (i.e., the assessment is at the time of the Tribunal’s decision, not retrospectively to the time the reviewable decision was made).

20. The Courts and this Tribunal have frequently considered what is meant by the statutory phrase that a person is ‘satisfied’ of a requirement. The leading authority is Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (Latham CJ, Rich, Starke, Dixon and McTiernan JJ). In that case Dixon J said:

    The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

21. The Tribunal therefore must be persuaded to a degree of reasonable satisfaction that WPSQ is of good character.

22. At the outset, the Tribunal makes clear that the manner of WPSQ’s arriving on Australian shores does not, of itself, count against whether he is of good character under the Act.  The description of persons in WPSQ’s category, arriving in the migration zone by boat without travel documents or a visa, was formerly that they were an ‘illegal maritime arrival’.  That language has been changed to ‘unauthorised maritime arrival’.  The Tribunal considers the newer description is more accurate, because the former requires an assessment of mens rea, which rubs up against the practical reality of people fleeing a place where they face, or contend that they face, persecution, and of Australia being a signatory of the Refugees Convention.  In this case, Australia has accepted WPSQ’s protection claims by the grant to him of a protection visa.

    Is the Applicant of ‘good character’?

23. The Courts have considered the term ‘good character’ on many occasions, especially in relation to the character provisions in the Migration Act 1958. In relation to applications for Australian citizenship by conferral, in BOY19 v Minister for Immigration and BorderProtection [2019] FCA 574, O’Bryan J referred to previous judgments about the term ‘good character’ in the Migration Act and then said, at [87] to [88]:

    As discussed earlier, the phrase “good character” refers to the enduring moral qualities of a person and not to their physical or mental attributes or abilities.  The expression does not have a fixed and precise content and necessarily imports a discretionary value judgment informed by the subject matter, scope and purpose of the Act. The expression is concerned with moral qualities that are regarded as a necessary concomitant of Australian citizenship.

    Consistently with Chapter 11 of the Citizenship Policy 2016, respect for the Australian Government and the laws of Australia, and respect for the institutions of government including governmental departments, is consistent with being of good character in the statutory sense. Such respect can be characterised as a moral quality that is relevant to citizenship.  Conversely, disrespect for the Australian Government, the laws of Australia and governmental department reflects adversely on a person’s character in the statutory sense.

24. The Citizenship Policy 2016 His Honour here refers to has since been updated, but the new document contains broadly similar exhortations.  The delegate who refused WPSQ’s citizenship application consulted the CPIs to inform their decision. The CPIs are not a legislative instrument. They aid decision-makers exercising the Minister’s delegated authority to come to decisions applying discretionary powers under the Act in a manner that is consistent. 

25. The Policy is not binding on the Tribunal, standing in the shoes of an original decision-maker, but the approach taken by the late Sir Gerard Brennan as President of this Tribunal in Re: Drakeand Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634, relevantly set out below, has received the approbation of the Courts:

    In my view, the Tribunal, being entitled to determine its own practice in respect of the part which Ministerial policy plays in the making of Tribunal decisions, should adopt the following practice:

    When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to Parliamentary scrutiny.

    The general practice of the Tribunal will not preclude the Tribunal from making appropriate observations on Ministerial policy, and thus contributing the benefit of its experience to the growth or modification of general policy; but the practice is intended to leave to the Minister the political responsibility for broad policy, to permit the Tribunal to function as an adjudicative tribunal rather than as a political policy-maker, and to facilitate the making of consistent decisions in the exercise of the same discretionary power.

26. Consequently, the Tribunal is guided by the Policy in considering whether it can be satisfied of WPSQ’s good character in terms of his application for Australian citizenship.  However, two important things must be kept in mind. First, where the Policy has content which appears to conflict with the Act, the latter prevails. Secondly, where rigid application of the Policy would result in an injustice or lead to a perverse result, common sense must be applied to the particular circumstances of the case, to prevent such a result.

27. CPI 15 – Assessing character under the Citizenship Act (‘CPI 15’) states at paragraph 4:

    The Australian community expects that persons in Australia will abide by Australian laws. This includes providing correct information when seeking a government benefit or service.

    It is relevant to consider whether the applicant has been honest in dealings with the Department. Decision-makers should consider all of the applicant’s interactions with the Department, including visa and citizenship applications

    If the applicant has knowingly presented incorrect information or a bogus document, this may reflect on the person’s character. If the applicant presents the incorrect information or bogus document unknowingly, there would be no ground for character concern. 

    (Emphasis added.)

1. CPI 15 reminds decision-makers to consider whether, in relation to a wrongdoing, an applicant has demonstrated genuine remorse, and the time that has elapsed since the wrong statement or false information was provided. CPI 15 then says:

   Application of these principles should be considered in the light of the facts of the particular case and should not be applied rigidly or inflexibly.

2. WPSQ was candid in his oral evidence to the Tribunal.  Under cross-examination Ms Liddy (for the Minister) asked him:

   Ms Liddy: Do you believe someone requires legal advice to tell the truth, or is that a moral obligation?

   WPSQ: It is a moral obligation.  That’s why I feel ashamed and embarrassed.  Once caught in the cycle, I could not get out of it.

   Ms Liddy: In July 2021 you replied to a letter the Department sent you inviting you to comment on adverse information.  At any time before that, had you tried to correct it?

   WPSQ: No.

   Ms Liddy: I put to you that the only reason you provided the correct information is because you were caught?

   QPSQ: Yes.

   Ms Liddy: You lied to the Australian Government for approximately eleven years?

   QPSQ: Yes.

   Ms Liddy: The remorse you demonstrate is only because of the refusal decision, rather than being truly remorseful?

   WPSQ: It wasn’t an intended or deliberate lie. I was influenced.  Once I was in that cycle I was caught and could not get out.

   Omissions regarding family composition

3. In the ‘Form 80 – Personal particulars for assessment including character assessment’ form sent to WPSQ by the Department to complete, he lists (R1, pp 61-62) five sisters and two brothers residing in Pakistan (R1, p 65). At the end of that form, he signs a declaration that the information he had supplied in or with the form is ‘complete, correct and up-to-date in every detail’ (R1, p 64) and he signed it on 7 September 2017.  At that time he also had two other brothers: one brother had resided in Australia for seventeen years, and the other had resided in Australia for seven years.

4. In the statutory declaration dated 5 July 2021, WPSQ lists, at paragraph 3, what he says is the complete composition of his immediate family, and yet while he belatedly included the two brothers who are resident in Australia, he omitted the two younger brothers he had previously said were living in Pakistan (R1, p 85).

   Information supportive of ‘good character’ of Applicant

5. There are several pieces of evidence before the Tribunal that support the notion that WPSQ is of good character.  There is no evidence of any interactions before the Courts or convictions in this country, and none were suggested by the Respondent.  In his oral evidence, in response to a direct question from the Tribunal, WPSQ said that he had two infractions for not stopping at an amber light, for which he had received demerit points and fines.  He said he had no other matters at Court since arriving in Australia and, in response to a question from his representative, said he had no overseas convictions.

6. WPSQ provided two character testimonials to the Department, and two more to the Tribunal.

7. Mr Jaweed Mohammadi, Community Religious Leader of the Hazara Australian Community Association of Victoria, wrote on 19 May 2021 (R1, p 88) that he has known the Applicant for more than seven years, that he was a ‘hard worker and honest person with a good behaviour in the community’ and that he has been a regular financial supporter of the Association for its community and social events.

8. Mr Mohajid Agha, Director and Secretary of Taha Humanity Association of Victoria, wrote on 19 May 2021 (R1, p 89) as follows:

   [WPSQ] has part of Taha Humanity Association from 2017, his work toward the community has been phenomenal.  He has always been there when we needed him, he has engaged in recreation, intellectual discussions, inter-community events and also take[n] part [in] collecting funds when purchasing a community centre…[WPSQ has been a] regular volunteer of the community…

9. Mr Ali Murad, who is the President of the Goulburn Valley Afghan Association, explained that his organisation was established in 2007 to represent Goulburn Valley’s Afghani community and consists of around 300 families and 800 individual members. Mr Murad wrote (Exhibit A2):

   Most of our members are former refugees who have fled their home country due to decades of persecution and civil war from Pakistan and Afghanistan and people from migrant background.

   Therefore, I am writing to acknowledge that [WPSQ’s name and date of birth] is known by our Association.

   We confirm that [he] has been excellent characters [sic] and with constructive background.

   Therefore, we kindly ask for your assistance with his citizenship application.

10. A letter of support from the Public Officer of the Razul Akram Association of Victoria, Mr Rohani, stated (with the anonym substituted for the Applicant’s name) as follows (Exhibit A3):

    WPSQ is well known by our community members as an Hazara Shia for more than two years, also I have personally known WPSQ as a Hazara Shia as well.

    Since WPSQ has been known by us; we found him very active, dedicated and a hardworking person.  We found that WPSQ is responsible and forethoughtful with a positive attitude.  Based on his daily hard works we strongly believe that he will be very beneficent and useful and work for the betterment of his Australian Community.

11. The Tribunal has no reason not to accept these testimonials.  Especially in the second case, where the writer says that WPSQ is personally known to him, they reflect well on the Applicant and his contribution to both organisations since he has been a member.

12. However, in his oral evidence, WPSQ said that he had not told any of the persons he approached to provide character references that he had provided untrue information to the Department and had received a letter from the Department inviting him to comment on adverse information.  He said that the reason he had not told them was that it would affect his social status in the community:

    Senior Member:            When you got these letters, did you deliberately not tell the writers about the adverse information letter?

    WPSQ: No, because it is quite embarrassing because I don’t want to be the person who tells lies because I can’t rectify it.

    Senior Member:            Did you not tell them because it might affect your social status?

    WPSQ: Yes.  It would affect my social status – they would consider you to be a liar.

13. This admission colours the complexion of these letters.  The Tribunal accepts that the four writers are all reflecting what they know about WPSQ and their interactions with him.  The Tribunal also accepts that WPSQ has made financial and other contributions to the community organisations referred to.  However, none of these people wrote their testimonials with the knowledge that WPSQ had said things to the Department which he knew, when he said them, not to be true.  That inevitably dilutes the weight that the Tribunal attaches to the testimonials in assessing WPSQ’s good character.

    Discrepancies in birth dates and ages of immediate family

14. The Tribunal does not place great weight on the Respondent’s submissions that WPSQ’s provision of inaccurate information about the birthdates of his wife and family is relevant to his character.  The Tribunal is aware of the practice in Afghanistan of parents applying for taskeras for young children; and of the taskera authorities assigning a notional date of birth.  The Tribunal accepts that taskeras in that country play much the same role as birth certificates do in other countries, but some allowance is made for the fact that dates of birth are sometimes notional, especially with home births and no independent persons available to certify the day of birth.  Transposition of dates from the Solar Hijiri calendar, which is used in Afghanistan, to the Gregorian calendar, used in most other countries, can also affect their accuracy.  The Tribunal finds that these discrepancies are not determinative in the matter before it.

    Discrepancies about dates of imprisonment

15. The Respondent noted that WPSQ said he was imprisoned by the Taliban from January 2005 to 2008 but also that his youngest child was born in 2006.  In his oral evidence, WPSQ said that it could well have been the end of 2005 that he was imprisoned.  The Tribunal regards this as a regrettable but not pivotal inaccuracy.

    Time spent in Iran

16. In his oral evidence about his time in Iran, WPSQ said that he had gone back and forth from Afghanistan to Iran to work illegally on construction projects, during which time some employers who were willing to employ illegal Afghani workers would let them sleep on the construction sites.  He said that the time he spent in Iran was a ‘combination’, not a continuous period.  The Tribunal accepts this evidence; and regards it as unfortunate that WPSQ was not more accurate in  the information he provided on the forms he submitted to the Department.  This explanation of what was initially unclear information is also not pivotal in the question before the Tribunal.

    Applicant’s lack of education and illiteracy

17. Mr Qasimi submitted that the Tribunal should have regard to the fact that WPSQ had very little education and was illiterate in his own Hazaragi language, and in English.  In response to a question from the Tribunal, WPSQ said that he paid someone $100 to fill in the forms he submitted, but agreed that this person read out the questions to him in Hazaragi and then he told the person what to put in response.

18. The Tribunal accepts WPSQ’s lack of English, but on his evidence, he was able to arrange for a person to help him fill in the forms, and he told them what the contents of the answers should be.  WPSQ did not contend that the scribe had written something incorrectly that he had dictated.

    Applicant’s work history in Australia

19. The Tribunal questioned WPSQ about his work history in Australia.  The Applicant said that after being released from Curtin Immigration Detention Centre (IDC), when granted his protection visa, he travelled to Brisbane, and then to Perth to visit his brother who resides there.  He then travelled to Melbourne and settled.  He said he worked in a supermarket, then ran an hotel for a period and then he and his brother jointly set up a supermarket and money exchange business in a Melbourne suburb.  WPSQ said that they employ ‘four or five’ people in their business.  WPSQ told the Tribunal that he has a Victoria driver licence; he has always paid his taxation obligations to the Australian Taxation Office; and he has dealt with state and local government and banks, as necessary, in relation to his business registration, rates and so forth.  WPSQ said that he had acquired ‘a little English’.

20. Mr Qasimi in his closing submissions noted that the very nature of WPSQ’s business, in handling remittances for people sending money to family overseas, is based on a reputation of trust.

21. With this evidence, the Tribunal is satisfied that WPSQ has made some positive contribution to Australia since he arrived in this country.  However, it is also clear that in building what appears to be a successful business, the Applicant has been able to navigate his dealings with the Commonwealth, state and local government authorities as he has needed to, without any evident difficulties.  He therefore has acquired some knowledge of dealing with Australian officialdom.

    Opportunities to correct information not taken

22. The Tribunal notes that WPSQ’s frank evidence was that, once he had lied about his two brothers residing in Australia and about the child AM being his son rather than his nephew, he ‘could not change the information’ because he was in a cycle.  The Tribunal does not accept that submission.  He could have corrected the information, at any earlier time than July 2021.

23. The Tribunal is prepared to make allowances for the traumatic experiences that persons like WPSQ experience in arriving in the migration zone.  When questioned directly by the Tribunal about the voyage, WPSQ said the first five days were calm sailing, but the last two days were perilous and stormy, before the boat was intercepted by the Royal Australian Navy, they were transferred to Her Majesty’s Australian ship, and then brought into port. 

24. WPSQ said he was told, not only on the boat but by other unauthorised arrivals in the IDC, that he should not disclose his family members in Australia because it might jeopardise his quest for a protection visa.  Mr Qasimi submitted that this is a common ‘group belief’.  That may affect how candid the Applicant was in his initial entry interview, or go some way to explain an omission or an infelicity of detail.

25. The Tribunal accepts that WPSQ may have been influenced by fellow detainees giving him foolish advice.  But what is important in its assessment of WPSQ’s character is, accepting WPSQ has not provided any bogus documents to the Department: (a) did he knowingly provide false information to the Department; and, if he did, (b) when did he correct the information he had provided which he knew was not true.  The answer to the first question is ‘yes’.  The answer to the second question is ‘7 July 2021, when he sent his statutory declaration to the Department’. 

26. Even if the Tribunal accepts that WPSQ was influenced by others to not say that he had two brothers living in Australia, one of whom had been here for eleven years, when WPSQ arrived, that does not explain why he decided in August 2011 to pretend that his nephew, AM, was his son.  WPSQ said he did it at the urging of his sister.  That may be true, and the motivation to give a better life for his nephew may be understandable.  But it was still information that was false, and it was not information influenced by others in the IDC, because WPSQ had by then received his protection visa and was in the Australian community.  The Tribunal notes the oral evidence during the hearing from the Applicant, that AM has since come to Australia with his mother and other members of his family.

27. Allowance can be made for WPSQ having little education and an inability to read English.  However, he admitted that he paid someone to read the citizenship forms to him and then he dictated the answers to be filled in.  He did not submit that the scribe got something wrong or made a mistake.  Therefore, WPSQ’s lack of English language proficiency is not a factor in the untrue information he provided.

    Good reputation not the same as good character

28. It must be emphasised that ‘reputation’ is not a synonym for ‘character’.  The four testimonials WPSQ provided are evidence that the writers know him as a person of good reputation.  The Tribunal also accepts Mr Qasimi’s submission that ‘trust’ is an important element in WPSQ’s business success in his money exchange. The views about WPSQ expressed in the testimonials and the objective fact that people trust him to run his money exchange are to his credit. But ‘good character’ is not about reputation.  It is not how others think you conduct yourself.  It is how you actually conduct yourself.  As His Honour said in BOY19, it is about enduring moral qualities.

29. O’Bryan J was echoing a passage from Irving v Minister of Immigration, Local Government and Ethnic Affairs [1996] FCA 1660, which was a decision of the Full Court of the Federal Court of Australia (Davies, R. D. Nicholson, and Lee JJ) in the context of the power of the Minister to refuse a visa. Lee J relevantly said, at [19]:

    Unless the terms of the Act and regulations require some other meaning to 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, 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 whilst the latter is a review of subjective public opinion…

    SUMMATION

30. Because WPSQ provided incomplete information in his application for citizenship by not disclosing his two brothers he knew resided in Australia, and because he only corrected this information, and the information about AM, when prompted by the ‘adverse information’ letter sent to him by the Department in April 2021, I cannot be positively satisfied that he was of good character at the time of the Minister’s decision (or in this case, the delegate’s) on the application.  In addition, because of the short length of time since WPSQ ‘came clean’, a period of only just over one year, I am not satisfied that a sufficient period has elapsed for me to make a positive finding that he is of good character at the time of this decision.

31. No doubt this decision will be disappointing to the Applicant.  No doubt he is genuine in saying to the Tribunal that he felt ‘caught in a cycle’ and ‘unable’ to correct his earlier untruths.  But he admitted in his own evidence that he did not need legal advice to know what was right and what was wrong.  He accepted that it was a moral obligation not to lie.  He was able to correct the information at any stage between 2011 and July last year, and he chose not to do so.

32. The Preamble to the Act relevantly says:

    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:

    …

    (d)         by upholding and obeying the laws of Australia.

33. Australian citizenship carries with it significant privileges.  An Australian citizen can vote and stand for elective office.  A citizen can become a permanent public servant and serve in our armed forces.  A citizen can serve on a jury.  A citizen can be issued with an Australian passport and seek consular assistance when travelling abroad.  It is therefore crucial that a person applying for citizenship must be candid in interactions with the Government and must not knowingly withhold information (such as the Applicant did about the existence of his brothers).  The person should also have not previously and knowingly made an untrue declaration to the Department (such as WPSQ did in purporting that AM was his son) with a view to obtaining a visa under false pretences. Upholding and obeying the laws of Australia includes giving true and complete information to government departments.

34. There is no bar on WPSQ making a fresh application for Australian citizenship.  He should not interpret this decision as final, in terms of his desire to become a citizen.  If WPSQ does decide to lodge a fresh application, he must take care to be completely honest in all the information he provides.  But the consequence of his failure to do so in the past, and the fact that his admission, correction, and contrition was recent, leads the Tribunal to the conclusion that the decision under review was correct in law and that the discretion was exercised in a preferable manner.

    DECISION

35. Pursuant to section 43(1)(a) of the AAT Act, the Tribunal affirms the decision under review.

I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

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

Associate

Dated: 19 July 2022

Date of hearing:	12 July 2022
Advocate for the Applicant:	Mr Rasheed Qasimi
Solicitors for the Applicant:	Help Visa & Migration Services
Advocate for the Respondent:	Ms Samantha Liddy
Solicitors for the Respondent:	Sparke Helmore Lawyers