YMPL and Minister for Immigration and Border Protection (Citizenship) - [2017] AATA 1458

YMPL and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1458 (12 September 2017)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL               )
  )         No: 2016/5052
GENERAL DIVISION  )
Re: YMPL
Applicant

And: Minister for Immigration and Border Protection
Respondent
DIRECTION
TRIBUNAL:               G Warner, Member
DATE:   5 October 2017
PLACE:                     Perth

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
1.paragraph c) of the decision and paragraph 62(c) of the reasons be deleted.

...................................................................
Member

Division:GENERAL DIVISION
File Number: 2016/5052
Re:YMPL
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Brigadier AG Warner, Member
Date:12 September 2017
Place:Perth

The decision under review is set aside and remitted to the Respondent with the directions that:
(a)The Applicant satisfies the identity criteria set out in s 24(3) of the Act;
(b)The Applicant is of good character pursuant to s 21(2)(h) of the Act; and
(c)The Applicant satisfies the requirements of, and is eligible to become an Australian citizen pursuant to s 21(2) of the Act.

............[sgd].........................................................
Brigadier AG Warner, Member
CATCHWORDS
CITIZENSHIP – application for Australian citizenship by conferral – whether applicant of good character – meaning of good character – proof of identity – requirement for overseas penal clearance – cogent reasons to depart from Citizenship Policy – decision under review set aside and remitted to Respondent
LEGISLATION
Australian Citizenship Act 2007 – s 21(1) – s 21(2) – s 21(2)(h) – s 24(1) – s 24(1A) –
s 24(3) – s 50
CASES
Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Irving v Minister for Immigration and Ethnic Affairs (1996) 68 FCR 422
Re Chen and Minister for Immigration and Citizenship [2012] AATA 455
SECONDARY MATERIALS
Australian National Audit Office, Administering the Character Requirements of the Migration Act 1958: Department of Immigration and Citizenship (Auditor General, Audit Report No. 55 2010–11, Performance Audit)
Department of Immigration and Border Protection, Citizenship Policy (1 June 2016) (the Policy)
REASONS FOR DECISION
Brigadier AG Warner, Member
12 September 2017
INTRODUCTION

The decision under review is a decision by a Delegate of the Minister for Immigration and Border Protection made under s 24(1) of the Australian Citizenship Act 2007 (the Act), to refuse to approve YMPL’s application for Australian citizenship (T12/71-82).
A hearing was held on 25 May 2017 at which an interpreter assisted the Tribunal.
BACKGROUND
The material before the Tribunal indicates that YMPL was born in 1987 and that he is Hazara from Baghochar, Afghanistan.
YMPL arrived in Australia on 4 October 2009 as an illegal maritime arrival without a valid visa. He was placed in immigration detention pending the assessment of his claims for protection and was granted a protection visa (subclass 866) on 22 December 2009.
YMPL claims to have resided in Afghanistan until 2006 when he departed Afghanistan and relocated to Quetta, Pakistan. He declared that he lived in Pakistan for a period of three years before travelling to Australia in 2009.
Since the grant of his visa he has been issued with four Australian travel documents and has travelled outside Australia on four separate occasions. To date, he has spent a total of 403 days outside Australia. During those trips he claims to have been visiting his family who have remained in Pakistan.
On 10 March 2014, YMPL lodged with the Department an application for citizenship by conferral pursuant to section 21 of the Act (T3).
On 2 May 2016, YMPL provided a number of documents to the Respondent (Exhibit 2, para 12). They included:
·a birth certificate for his son (the birth certificate) (Exhibit 2, ST1);
·an affidavit signed by his wife stating that she had approached the Pakistani Police and had been unsuccessful in obtaining a penal clearance certificate (Exhibit 2, ST2); and
·a Quetta Police memorandum dated 12 March 2003 (Exhibit 2, ST3).
On 6 July 2016, the Respondent made enquiries to the Australian High Commission in Islamabad, Pakistan regarding the birth certificate provided by YMPL with respect to his son. The Respondent queried whether the birth certificate did not exist in the records or was recorded incorrectly. The Respondent also asked whether illegal residents in Pakistan, such as YMPL, could access the Bolan Medical Complex (T10).
The High Commission replied by email dated 11 July 2016, as follows (T10):
The local of Bolan Medical Complex is in the area where a lot of Afghan Refugees are living. Among them are many illegal immigrants as well. Bolan Medical Complex that Birth Certificates are issued to them as well. We have seen it past (sic) and I have talked to partner team in our department as well. As there is no link of those birth certificates with Government. It is issued on a piece of paper which is hand written.
On 12 July 2016, the Delegate wrote to YMPL (procedural fairness letter) seeking comment on information before the Delegate that was adverse to YMPL’s application (T11/67-69). The Delegate considered that YMPL had supplied a bogus birth certificate for his claimed son from Bolan Medical Complex Hospital Quetta. The Delegate noted that the birth certificate had been checked with the High Commission in Islamabad which advised that the certificate was not issued by Bolan Medical Complex Hospital Quetta. The letter also noted that YMPL was required to provide a Penal “Clearance Certificate – Pakistan”, which could be obtained through the Afghani embassy.
YMPL did not respond to the Delegate’s letter dated 12 July 2016 within the 28 days provided, and the Delegate finalised her refusal decision on 25 August 2016 (T12/71-83). The Delegate refused YMPL‘s citizenship application on three grounds:
(a)she was not satisfied that YMPL was of good character as he had provided the Department with a fraudulent document, namely, the birth certificate;
(b)she was not satisfied that YMPL was of good character as he had not provided an overseas penal clearance; and
(c)she was not satisfied of YMPL’s identity as he had not provided sufficient documents to prove his identity from birth. The Delegate noted that she placed little weight on the Australian identity documents provided by YMPL because they are based on information he provided on arrival in Australia (T12/78).
On 7 September 2016, YMPL sent a further letter to the Department which attached a different birth certificate for his son, issued by Mohtarma Shaheed Benazir Bhutto Hospital, Quetta (the second birth certificate) and a penal clearance purportedly issued by Police Station Brewery Quetta (T13). In relation to these two documents, YMPL “now knows these documents were false and wishes to withdraw them, however at the time he provided them he did not know them to be false” (Exhibit 2, para 34).
On 22 September 2016, YMPL applied to the Tribunal for a review of the Delegate’s decision. He gave the reason for the application as: “They have asked me to provide information I can not provide. Unreasonably” (T2/4).
ISSUES
The issues for consideration in the review of the decision to refuse YMPL’s citizenship application are:
(a)whether YMPL is of good character for the purposes of satisfying the relevant eligibility criteria to become an Australian citizen. If he is not of good character, he must not be approved to become an Australian citizen; and
(b)whether the Tribunal is satisfied with YMPL’s identity having regard to section 24(3) of the Act.
LEGISLATIVE REGIME
Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Subsection 24(1) of the Act provides that the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen. Subsection 24(1A) of the Act provides that the Minister must not approve a person becoming an Australian citizen unless the person is eligible to become an Australian citizen under ss 21(2), (3), (4), (5), (6), (7) or (8) of the Act.
Relevantly for the current matter, s 21(2) of the Act sets out the general eligibility criteria for a person over 18 years of age to become an Australian citizen (there is no evidence that would indicate the applicant may fall within other eligibility criteria). Among the criteria at s 21(2), paragraph (h) provides that the Minister must be satisfied that the person is of good character at the time of the Minister’s decision on the application.
The term “good character” is not defined in the Act. There is, however, an explanation of the application of the “good character” requirement in the Policy. The Policy gives examples of the types of actions that a person of good character would display, noting, inter alia, that an applicant of good character would:
·respect and abide by the law in Australia and other countries;
·be honest and financially responsible (for example, pay their taxes, and not be in dishonest receipt of public funds);
·be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:
oproviding false person information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications,
·not be associated with others who are involves in anti-social or criminal behaviour, or others who do not uphold and obey laws of Australia; and
·not be the subject of any verifiable information causing character doubts.
The Policy provides guidance to decision makers in undertaking decision making functions under the Act. The Tribunal as a decision maker will generally apply policy such as that contained in the Policy unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640 per Brennan J.
Chapter 11 of the Policy deals with the good character requirement in the Act. The Policy (at p 145) notes that the concept of character refers to a person’s “enduring moral qualities” citing Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 (Irving).
The Policy also discusses what is considered by “community standards” and the “Australian values statement”, noting that the statement “requires applicant to confirm that they will respect the Australian way of life and obey the laws of Australia before being granted a visa” (at pp. 146–7).
The Policy goes on to provide guidance with respect to ‘Weighing up the character decision’ (pp. 149-150):
Essentially, the question for decision makers is whether any mitigating circumstances and/or explanation provided by the applicant outweigh the behaviour in question. The assessment about whether an applicant is of ‘good character’ requires the consideration of an aggregate of qualities. Decision makers should place more weight on significant offences.
In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standards. Having regard to the words of the Preamble, and the pledge to be made if citizenship is approved, decision makers are asking themselves:
·would a person of good character have behaved the way the applicant did
·what is there for demonstrate that the applicant has upheld and obeyed the law
·has the applicant behaved in accordance with Australia’s community standards
·does the applicant share Australia’s democratic beliefs and respect its rights and liberties
In Prasad and Minister for Immigration and Ethnic Affairs ([1994] AATA 326 at [7]) the AAT said:
‘a decision about whether a person is of good character requires the consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness’.
A decision maker needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time. The amount of time considered to be ‘lasting’ or enduring’ depends on the merits of each case, but in most cases will go back prior to any visa application.
If a person has committed a very significant offence (such as taking the life of another person, sexual assault, crimes against children, war crimes, crimes against humanity, genocide) the lasting/enduring period would be much longer, potentially over a period of many years. In such an assessment, the nature of the significant offence is more relevant to whether or not the person is of good character than the period of time since the crime was committed. Thus it may be extremely difficult for a decision maker to be satisfied that a person is of good character after having committed such offences, even after the passage of many years.
Section 50 of the Act relevantly provides that a person commits an offence if the person knowingly makes, or permits to be made, a representation or statement that is false or misleading in a material particular for a purpose of or in relation to the Act.
EVIDENCE
The Tribunal had before it the following evidence:
·The T Documents (T1-T14, pp. 1-87, Exhibit 1);
·Applicant’s Statement of Facts, Issues and Contentions dated 24 February 2017, including Additional Documents ST1-9 (Exhibit 2);
·Respondent’s Statement of Facts, Issues and Contentions dated 31 March 2017 (Exhibit 3);
·Direction 72 – order for considering and disposing of Family visa applications (Exhibit 4);
·Verification Form of Afghans’ Identity and other services residing outside the Country (Exhibit 5);
·The oral evidence of Mr A;
·The oral evidence of Mr M; and
·The oral evidence of YMPL.
CONSIDERATION
Proof of identity
The Respondent contends, correctly, that the Tribunal “must not approve the applicant becoming an Australian citizen unless the Tribunal is satisfied of the identity of the applicant” (Exhibit 3, para 29).
As stated at paragraph 4 above, YMPL was granted a protection visa in December 2009 and has travelled in and out of Australia on several occasions since. There is no evidence before the Tribunal to indicate that this travel raised any concerns regarding his identity, or that YMPL’s identity is other than that which he claims.
Written statements by Mr G and Mr M support YMPL’s identity claim (Exhibit 2, ST7 and ST8). They both state that they are from the same village in Afghanistan as YMPL and knew him as a child. Their statements provide support to YMPL’s reasons for not having identity documents (Taskera) from Afghanistan.
In his telephone evidence before the Tribunal, Mr M confirmed that despite the passage of time since he had known YMPL as a child, he was sure about his identity and knew his family. In his written statement, he stated that on one occasion he saw YMPL in Pakistan with his mother and brother (Exhibit 2, ST7).
At the hearing, the Respondent accepted the written statement by Mr G without challenge. The statement includes the following (Exhibit 2, ST8):
In my village no one had identity documents such as birth certificates and identity documents (Taskera) … I knew [YMPL] in Afghanistan. We are both from the same village Baghochar in Uruzgan Province in Afghanistan. I knew him very well as our houses were about 10-15 minutes walk from each other. I was only a child at the time. I do not know exactly how old [YMPL] was but he was a child then as well … Our families knew each other.
YMPL has submitted his marriage certificate as proof of his identity (Exhibit 3, ST9). In a written statement dated 23 February 2017, Mr L states: “I was with [YMPL] at his wedding. Actually I travelled with him back to Quetta for his wedding. I met his wife then” (Exhibit 2, ST5).
In addition to a written statement (Exhibit 2, ST6), Mr A gave evidence before the Tribunal. He told the Tribunal that YMPL was married and had a son, and that he attended YMPL’s wedding celebration in Quetta. Mr A confirmed that he appeared in photographs of that wedding (Exhibit 2, ST4).
During the hearing, the Respondent asked YMPL if he had tried going to the Afghani Embassy in Australia. YMPL replied “Yes” and referred to a document Verification Form of Afghans’ Identity and other services residing outside the country (Exhibit 5). This document as presented is of limited evidentiary value as it has not been properly translated and its status has not been properly established. However, the Tribunal considers it indicative of steps YMPL has taken to prove his identity, and notes that there is no evidence of any adverse reaction or response subsequent to YMPL’s approach to the Afghanistan Embassy.
During the hearing, the interpreter conducted a cursory examination of this document (Exhibit 5) and stated:
There is no issue date on this document. Of course there’s a stamp that says Embassy of Islamic Republic of Afghanistan and at the end there is a letter written, typed actually, that they confirm that this person is from Afghanistan and this office, the Embassy, is satisfied that this person is from Afghanistan, that’s the final letter that was sent.
Relevantly, the test for establishing identity is outlined in Dhayaakpa and Minister for Immigration and Border Protection [2015] AATA 310 where the Honourable R Nicholson, Deputy President was satisfied that the applicant in that matter had established his identity to the best of his ability. The Deputy President stated at [117]: “Neither the Act nor the common law requires that identity can only be established by the production of documents appropriate to an established or undisturbed society”.
Having carefully considered the evidence and the relevant circumstances, the Tribunal is reasonably satisfied that YMPL’s identity is that which he claims it to be.
Good character
General
The Respondent’s primary contention is that the applicant is not of good character. The Respondent contends (Exhibit 3, para 22):
[YMPL] has admitted to providing false documents in the course of making his application for citizenship. Those false documents included a fraudulent penal clearance certificate which the applicant knew, or ought to have known, was a document that the Department would rely upon in making any finding that he was a person of good character.
The test for good character is set out by the Full Federal Court in the matter of Irving, as follows:
The words “good character” should 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”.
YMPL arrived in Australia in 2009 and was granted a protection visa late that same year (see para 4 above). Since then he has spent a total of 403 days outside Australia. There is no evidence before the Tribunal, other than that which will be considered in subsequent paragraphs, of criminal or inappropriate conduct in Australia or elsewhere which might support a conclusion that YMPL is not of good character.
Relevantly, in the record of the decision under review, the Delegate stated: “On 5 July 2016, an onshore police check was conducted and results show that you have no criminal convictions in Australia. I have placed significant weight on this fact” (T12/77).

In the matter of Re Chen and Minister for Immigration and Citizenship [2012] AATA 455 (Chen) at [10], Senior Member Redfern quoted from the Australian Citizenship Instructions which stated: “An applicant’s behaviour does not need to be faultless, but the aggregate of their qualities must be weighed against ordinary community standards of behaviour”.
In determining the aggregate of YMPL’s qualities, the Tribunal has regard to both written statements and oral evidence. The written statements variously describe YMPL as reliable, calm, trustworthy, generous to others, hard-working and committed to providing a good life for his wife and son in Australia (Exhibit 2, ST5-ST8).
Before the Tribunal, Mr A described YMPL as welcoming, hospitable and hard-working and confirmed that he would trust YMPL to look after his daughter or his shop. In his evidence by telephone conference, Mr M described YMPL and his family as good people.
The birth certificate
In relation to the allegedly false birth certificate, YMPL contends (Exhibit 2, para 33):
The birth certificate provided to DIPB on 2 May 2016 is not false (ST1). Although the Respondent relied upon the fact that the registration number on the birth certificate is not correct, the reply from the Australian High Commission in Islamabad confirmed that illegal residents in Pakistan do not have their births registered with the Pakistani Government and that these individuals are issued with handwritten birth certificates, as was the case for [YMPL].
Before the Tribunal, YMPL detailed how he obtained the birth certificate thus:
Documentation was very important for my family’s case and that’s why I went about and I went to that hospital and then I said “My son was born in this hospital and I need a certificate information” and something, you know, and then they ask my name and they ask my wife names and then they ask my family name and then they charge me 500 rupee – 500 Pakistani rupees and then – and then they issue me a birth certificate … I was definitely sure that the paper was – or certificate was genuine and because I was told by my wife the date my son was born and the month and the year and I went to that hospital personally and I obtained that document – that certificate.
In responding to a question from the Tribunal, the Respondent stated: “In relation to that first certificate. The fact is, it’s not entirely clear that it is certainly bogus. As you’ve picked up, the wording is quite ambiguous. It’s been taken that it was bogus”.
Having carefully considered the evidence relevant to the birth certificate, the Tribunal accepts YMPL‘s contention that:
The birth certificate provided to DIBP on 2 May 2016 is not false. Although the Respondent relied upon the fact that the registration number on the birth certificate is not correct, the reply from the Australian High Commission in Islamabad confirmed that illegal residents in Pakistan do not have their births registered with the Pakistani Government and that these individuals are issued with handwritten birth certificates, as was the case for [YMPL].
Affidavit of YMPL’s Wife
Although the Delegate did “not place great weight on” the affidavit signed by YMPL’s wife and provided to the Respondent by YMPL on 22 April 2016 (T12/77), YMPL submits (Exhibit 2, paras 37-39):
The affidavit states that [YMPL’s wife] attended the police station in Quetta to obtain a penal clearance on behalf of [YMPL] but that the police refused to issue a penal clearance because [YMPL] is an Afghan national.
As [YMPL] states in his statement (ST4), [YMPL’s wife] did not attend the police station as it was not safe for her to do so. This is because she is a woman, and a Hazara, living in Quetta Pakistan. Rather, an agent who is a man attended the police station on her behalf. [YMPL’s wife] cannot read or write. [YMPL’s wife] relied on the agent to tell her what was in the affidavit and where to sign.
Despite the fact that [YMPL’s wife] did not attend the police station personally, it remains the truth that a request was made of the Quetta police to provide a penal clearance for [YMPL] and this request was denied.
Second birth certificate and penal clearance certificate
Subsequent to the Delegate’s procedural fairness letter dated 12 July 2016 (T11/67-69), YMPL provided to the Respondent a second birth certificate in respect of his son (T13/85) and a penal clearance certificate (T13/84). YMPL employed and paid an agent in Pakistan to obtain these documents. These documents were provided after the date of the decision under review, that being 25 August 2016, and consequently are not mentioned in the decision record (T12/74-80).
In relation to these documents, the Respondent contends:
[YMPL] has admitted to providing false documents in the course of making his application for citizenship. Those false documents included a fraudulent penal clearance certificate which [YMPL] knew, or ought to have known, was a document that the Department would rely upon in making any finding that he was a person of good character.
Before the Tribunal, YMPL stated his belief at the time he provided these documents to the Department as follows:
In that point of time when I send those documents I believe that those document is true and I would not play a game to my son’s life, it’s impossible for me. Where they live, you know, in the situation they are living.
The Tribunal considers YMPL’s literacy competence to be relevant to the circumstances in which these documents were submitted to the Department. YMPL required an interpreter during these proceedings, and told the Tribunal that he could not read in English or his own language. Exhibit 2, paragraph 44 states:
[YMPL] has a very low level of literacy and was unable to read the documents himself. He therefore had no way of identifying that the documents could be false. [YMPL] relied upon the integrity of the Agent he had paid that the documents were what he had asked the Agent to obtain on his behalf and simply provided these to the Respondent.
In closing submissions, Ms Copeland explained YMPL’s understanding of the authenticity of the second birth certificate and the penal clearance certificate as follows:
So he has been, for a long time, trying to get the right paperwork. He asked the agent to get that, and that’s the one submitted after the decision was made, and it wasn’t until he then saw us and realised what was in those documents that he realised that there was a problem too, or could be.
What I mean is he thought those two documents he submitted were true. It wasn’t until I read to him the content of his wife’s affidavit that he realised there was a problem with his agent, and that’s when he realised that the penal clearance he had submitted was probably – possibly not going to be okay. That’s when he went to Canberra.
The Respondent contends that in providing these documents to the Department, YMPL has breached s 50 of the Act (Exhibit 3, para 25). However, s 50(1) provides that a person commits an offence if the person makes, or causes or permits to be made, a representation or statement and does so knowing that it is false or misleading in a material particular. It is not sufficient that a person “ought to have known”.
YMPL realised there was a problem with the penal clearance certificate that he provided on 7 September 2016 (T13/84) (see paragraph 52 above). At the time of these proceedings, some eight months later, the Respondent had not authenticated the certificate or found it to be bogus. Relevantly, the Respondent told the Tribunal: “The fact is this application is premature, in my submission, and [YMPL] is in the process of taking steps that may well establish his identity, and also result in a valid penal clearance being provided”.
The Tribunal has regard to the context in which YMPL provided the second birth certificate (T13/85) and the penal clearance certificate (T13/84). Exhibit 2, paragraphs 46 and 47 state:
[YMPL] is desperate to bring his wife and son to Australia. He lives in constant fear as to their safety in Quetta. [YMPL’s] wife, as a woman living on her own with a young child, cannot go far from home. She is not protected by the Pakistani Government. [YMPL] feels completely helpless that he cannot protect his wife and son.
[YMPL’s] wife is also very ill as a consequence of the stress that she is living under. This concerns [YMPL] greatly.
Having carefully considered all the evidence and the prevailing circumstances pertaining to the provision of these documents, the Tribunal concludes that although YMPL may have demonstrated a lack of judgement in providing the documents, as he claims to have done, without first ascertaining their veracity, there is insufficient evidence to support a conclusion that in doing so he was not of good character.
There is a parallel in the case of Chen, although there the applicant had knowingly supplied a false document to the Family Court of Australia. Senior Member Redfern found that the conduct was “explained, although not excused, by the pressure of the situation, emotional strain and his inexperience”.
Requirement for overseas penal clearance
In relation to the requirement for an overseas penal clearance, the Respondent contends that (Exhibit 3, para 26):
The Tribunal should not be satisfied that [YMPL] is of good character in circumstances where he has still not provided a (genuine) penal clearance certificate. The Policy (at page 71) provides that in order for a decision maker to consider whether an applicant is of good character, any applicant who has spent more than 12 months outside Australia and more than 90 days in any one country since becoming a permanent resident, must provide an overseas penal certificate from each country in which they spent more than 90 days. Since being granted permanent resident in Australia, [YMPL] has been absent from Australia for 403 days and has spent more than 90 days in Pakistan. The respondent therefore contends that the Tribunal should not be satisfied that he is of good character without such a certificate.
Although policy is not binding on the Tribunal, it will ordinarily be followed unless there are cogent reasons not to do so (see paragraph 19). Although the Policy provides that “conferral applicants should be asked for an overseas penal clearance” in circumstances such as that of YMPL, the Policy also states: “Applicants may not be able to obtain police clearances for several reasons, for instance certain countries may not allow individuals to obtain penal clearance certificates”. Having carefully considered the evidence and the circumstances, the Tribunal concludes that the following reasons support departure from the Policy in YMPL’s case:
·The Tribunal is satisfied that YMPL has taken reasonable steps to obtain a penal clearance certificate.
·There remains a lack of certainty regarding the status of the overseas penal clearance provided to the Department on 7 September 2016 (T12/84) (see paragraph 54 above).
·In response to the memorandum advising that “the issuance of character references to the Afghani Refugees are refused” (Exhibit 2, ST3), the Delegate found that it did not provide current or correct information because it was dated 13 years ago (T12/77). There is no evidence before the Tribunal such as to establish the currency, or otherwise, of this memorandum.
·YMPL’s submission before the Tribunal in response to correspondence from the Department:
The department’s own letter of 12 July clearly says Afghan refugees cannot get clearances just by approaching the police, and suggest instead that he go to the embassy in Islamabad. That’s a thousand kilometres away from Quetta, and daily Hazaras are being targeted, bombed, killed as soon as they leave the confines of Quetta. Even in Hazara Town in Quetta there have been bombings that have killed many, many people. These are all cogent reasons why we shouldn’t prolong this any longer to chase after a document that is possibly not going to be forthcoming, possibly not possible to get; highly likely, in fact, that it’s not possible to get.
·Despite the passing of some three months at the date of these proceedings, there has been no response to YMPL’s visit to the Embassy of the Republic of Afghanistan and his lodgement of Exhibit 5. YMPL also told the Tribunal that he had been treated with disrespect at the embassy because he was Hazara.
·In considering penal certificates, the Auditor-General Audit Report No. 55 2010-11 stated at paragraph 3.15:
The lack of centralised criminal databases, rules for non-recording of spent convictions, and corruption in some countries means that penal certificates may be incomplete and/or unreliable. Furthermore, in some countries, it is not possible to obtain penal certificates and, in other countries, law enforcement agencies will not provide penal certificates to non-citizens or citizens overseas.
·The Delegate placed significant weight on the inshore police check conducted on 5 July 2016 (see paragraph 39), and there is no evidence before the Tribunal of criminal or inappropriate behaviour in Australia or overseas.
Having carefully considered the matters at paragraphs 36 to 59 above collectively, the Tribunal is reasonably satisfied that YMPL is of good character for the purposes of his application for Australian citizenship.
CONCLUSION
The Tribunal finds that YMPL’s identity is that which he claims it to be. The Tribunal also finds that YMPL is of good character for the purposes of satisfying the relevant eligibility criteria to become an Australian citizen.
DECISION
The decision under review is set aside and remitted to the Respondent with the directions that:
(a)The Applicant satisfies the identity criteria set out in s 24(3) of the Act;
(b)The Applicant is of good character pursuant to s 21(2)(h) of the Act; and
(c)The Applicant satisfies the requirements of, and is eligible to become an Australian citizen pursuant to s 21(2) of the Act.

I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, Member

..........[sgd]...........................................................
Administrative Assistant - Legal
Dated: 12 September 2017

Date of hearing: 25 May 2017

Representative for the
Applicant: Ms A Copeland
SCALES Community Legal Centre

Representative for the
Respondent:

Mr A Burgess

Solicitors for the Respondent:

Sparke Helmore Lawyers

Date of hearing:	25 May 2017
Representative for the Applicant:	Ms A Copeland SCALES Community Legal Centre
Representative for the Respondent:	Mr A Burgess
Solicitors for the Respondent:	Sparke Helmore Lawyers