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NBRQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 3612 (22 February 2022)

Last Updated: 28 October 2022

NBRQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 3612 (22 February 2022)

Division: GENERAL DIVISION

File Number: 2020/8360

Re: NBRQ

APPLICANT

And Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal: Senior Member Linda Kirk

Date: 22 February 2022

Place: Sydney

The Reviewable Decision is affirmed.

...........................SGD.............................................

Senior Member Linda Kirk

CATCHWORDS

CITIZENSHIP – good character test – bogus documents submitted to Department – false information submitted in relation to Applicant’s marital status and family composition – false information submitted with purpose of achieving favourable migration outcome – Applicant has not demonstrated genuine remorse for misrepresentations made - Tribunal unable to form affirmative belief Applicant is of good character – decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Australian Citizenship Act 2007 (Cth)

Freedom of Information Act 1982 (Cth)

Judiciary Act 1903 (Cth)

Migration Act 1958 (Cth)

CASES

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

BOY19 v Minister for Immigration and Border Protection [2019] FCA 574; (2019) 165 ALD 39

Dawlatshahi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2437

Dramani and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 2444

Fang and Minister for Immigration and Border Protection [2018] AATA 3686

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

Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250

Godley v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 774

Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321; [1999] FCA 1277

[Redacted]

[Redacted]

[Redacted]

[Redacted]

[Redacted]

Hosseini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 4377

Irving v Minister of State for Immigration, Local Government and Ethnic Affairs [1996] FCA 663; (1996) 68 FCR 422

Minister for Home Affairs v G (2019) 266 FCR 569; [2019] FCAFC 79

Nazari and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2000

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

Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173

Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326

Ramazani and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1801

Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286

VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230

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

SECONDARY MATERIALS

CPI 15 – Assessing Good Character under the Citizenship Act

Australian Citizenship Policy Statement

REASONS FOR DECISION


Senior Member Linda Kirk


22 February 2022

  1. The Applicant seeks review of a decision of a delegate of the Respondent dated 9 December 2020 (‘Reviewable Decision’)[1] to refuse to approve her application for Australian citizenship made on 9 July 2020.[2] The application was refused on the ground that a delegate of the Minister (‘the Respondent’) was not satisfied that the Applicant met each of the criteria set out in s 21(2) of the Australian Citizenship Act 2007 (Cth) (‘Citizenship Act’). Specifically, the delegate was not satisfied that the Applicant met the criterion in s 21(2)(h), that is, she ‘is of good character at the time of the Minister’s decision on the application’.
  2. On 17 December 2020, the Applicant lodged with the Tribunal an application for review of the Reviewable Decision.[3]
  3. The review application was heard by the Tribunal on 12, 13 and 23 July 2021. The Applicant was represented by her advocate.
  4. The following witnesses gave oral evidence and were cross-examined at the hearing:
  5. The following documents were admitted into evidence at the hearing:
  6. The Tribunal has reviewed all the evidence before it and refers to all relevant materials below.

LEGAL FRAMEWORK

Legislation

  1. The Preamble to the Citizenship Act states that:
    The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.

    The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:

a) by pledging loyalty to Australia and its people; and

b) by sharing their democratic beliefs; and

c) by respecting their rights and liberties; and

d) by upholding and obeying the laws of Australia.

  1. Section 21 of the Citizenship Act sets out the general provisions for the making of applications and eligibility for citizenship.
  2. A person is eligible to become an Australian citizen if the Minister is satisfied that he or she meets the requirements in s 21(2) of the Act, as follows:
    (2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

    (a) is aged 18 or over at the time the person made the application; and

    (b) is a permanent resident:

    (i) at the time the person made the application; and

    (ii) at the time of the Minister’s decision on the application; and

    (c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and

    (d) understands the nature of an application under subsection (1); and

    (e) possesses a basic knowledge of the English language; and

    (f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and

    (g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and

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

  3. Section 21(4) is applicable to a person aged 60 years or older:
    (4) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

    (a) is:

    (i) aged 60 or over at the time the person made the application; or

    (ii) aged 18 or over at the time the person made the application and is suffering from a permanent loss or substantial impairment of hearing, speech or sight at that time; and

    (b) is a permanent resident:

    (i) at the time the person made the application; and

    (ii) at the time of the Minister’s decision on the application; and

    (c) understands the nature of the application at the time the person made the application; and

    (d) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and

    (e) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and

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

  4. Section 24(1) of the Citizenship Act provides:
    Minister’s decision

    (1) 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.

  5. Section 24(1A) of the Citizenship Act provides:
    (1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
  6. By operation of s 24(1A), the Minister must not approve a person becoming an Australian citizen unless the Minister is satisfied that the person ‘is of good character at the time of the Minister’s decision on the application’, being the requirement of s 21(2)(h) and 21(4)(f) referred to above.
  7. Section 45A of the Citizenship Act expressly prohibits the provision of ‘bogus documents’ to the Minister. It is also an offence, punishable by 12 months’ imprisonment, to make false statements or representations ‘for a purpose of or in relation to [the Citizenship Act]’.[4]
  8. ‘Bogus document’ is defined in section 3 of the Citizenship Act:
    ‘bogus document’ has the same meaning as in section 5(1) of the Migration Act 1958 (Cth).
  9. Section 5(1) of the Migration Act 1958 (Cth) (‘Migration Act’) provides:
    ‘bogus document’, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a) purports to have been, but was not, issued in respect of the person; or

(b) is counterfeit or has been altered by a person who does not have authority to do so; or

(c) was obtained because of a false or misleading statement, whether or not made knowingly.

Citizenship policy

  1. On 27 November 2020, the previous citizenship policy was revoked and replaced by the Australian Citizenship Policy Statement (‘Policy Statement’).[5] While the Policy Statement has the qualities of a relevant consideration, it lacks the legal force and effect of either prescribed criteria or a mandatory direction. The stated ‘[p]urpose’ of the Policy Statement is ‘to provide background in relation to the history of citizenship in Australia, and a general overview of [the Citizenship Act]’.[6]
  2. Relevantly, the Policy Statement mirrors the requirements of s 21(2)(h) and 21(4)(f) of the Citizenship Act in providing that a person will be eligible to become an Australian citizen if at the time the decision is made, the Minister is satisfied that the applicant is of ‘good character’.
  3. The Policy Statement is expressly related to the Revised Citizenship Procedural Instructions. CPI 15 – Assessing Good Character under the Citizenship Act (‘CPI 15’), as at 26 February 2021, is relevant in assessing whether the Applicant is of ‘good character’.[7] CPI 15 provides a framework by which decision-makers are able to ‘weigh up’ an assessment of character for the purposes of s 21(2)(h) of the Citizenship Act.[8] In weighing up the evidence to assess an applicant’s character, a decision-maker should look holistically at an applicant’s behaviour over a lasting (or enduring) period of time. The amount of time depends on the merits of each case, but in most cases will go back prior to any visa application if the person is applying for citizenship by conferral.[9]

ISSUE FOR DETERMINATION

  1. The only issue before the Tribunal is whether the Applicant is of ‘good character’. It is common ground between the parties that she otherwise meets the statutory criteria for the grant of citizenship.

EVIDENCE BEFORE THE TRIBUNAL

  1. The Applicant was born in the Philippines and is a citizen of that country. The Applicant’s date of birth is contested. She claims that her date of birth is 13 November 1966. The Respondent’s records record the Applicant’s date of birth as 13 November 1954.

Family members in the Philippines

  1. The Applicant’s parents are both deceased.[10] She claims that she has only one brother JIGE who was born in 1977 and passed away in 2018.[11] The other three siblings that are recorded in Philippines government records as being born to her mother,[12] she claims she does not know.[13] She is unaware of their birth dates and other personal details.[14]

Education

  1. In her oral evidence, the Applicant told the Tribunal that she started school when she was aged three years because her father was a teacher and would take her along with him.[15] She started high school when she was 12 years old and received her bachelor’s degree when she was 17 years of age.[16] She, studied very hard including taking subjects during the summer vacation, and she was able to complete the degree in three and a half years.[17] [REDACTED].[18] She worked at her father’s school as a substitute teacher at the age of 17 years.[19] She graduated in April 1984, but she was not able to collect the certificate, so her father collected it for her.[20]

First marriage and children

  1. The Applicant’s evidence is that [REDACTED].[21]
  2. [REDACTED].[22] However, a marriage certificate records that the Applicant and Mr [REDACTED] were married in a church ceremony on 17 October 1981.[23] The Applicant’s date of birth is recorded as 13 November 1954 on the marriage certificate.[24] [REDACTED][25] In her statutory declaration dated 17 October 2005, [REDACTED].[26]

Amendment to birth certificate

  1. [REDACTED]
  2. The Applicant told the Tribunal that after her father died in 1989, she told her mother that she wanted her birth certificate to be corrected. Her mother warned her and said, ‘if I were you...I (would) not make any correction’ because she ‘will have a very hard time.’[27] When her mother died in 1999, she went ahead with her plan to have her birth certificate corrected because ‘I want(ed) to be honest with myself and the people I deal with.’[28]

Travel to Australia on tourist visa – July 1998

  1. The Applicant first arrived in Australia on 23 July 1998, as the holder of a tourist visa granted on 30 June 1998 and recorded in her Philippines passport in her name .[29] The Applicant wrote in her tourist visa application that she was married and had two children.[30] The date of birth she provided was 13 November 1954, which was the date in her passport. She first obtained a passport in 1985 to travel to Hong Kong.[31] This passport was subsequently renewed, and this is the one she used to travel to Australia.[32]
  2. The Applicant’s evidence is that when she applied for the tourist visa, she told the officer at the Australian Embassy in Manila that her birth date in her birth certificate (13 November 1954) is incorrect and her date of birth is 13 November 1966.[33] He told her she had to use the date in her birth certificate for the tourist visa application. This was the first time she had been required to submit her birth certificate to any agency.[34] Her date of birth was recorded as 13 November 1954 for social security, tax and other government services.[35] In her oral evidence she agreed that she did not take steps to correct her date of birth while she was in Australia as it could only be done in the Philippines as it required ‘personal attention’.[36]
  3. The Applicant was granted two bridging visas and a further tourist visa prior to departing to the Philippines in April 1999.[37] She returned to Australia five days later on another tourist visa. The Applicant again departed and returned to Australia in July 1999 on a fourth tourist visa, which ceased on 30 September 1999.[38] Following the expiry of this visa, the Applicant did not depart Australia and did not obtain another visa.

Application for further visa – September 1998

  1. In her oral evidence the Applicant told the Tribunal that when she came to Australia she was working as the import-export manager at a tile manufacturing company in the Philippines which sold tiles to Australia.[39] The director of the Olde English Tile Factory in Australia offered her a ‘business sponsorship’.[40] They went to see a lawyer to make an application for a business visa.[41] During cross-examination the Applicant was asked to comment on there being no record of a visa application having been submitted to the Department. She said she went to a lawyer and ‘filled out an application’ and then left it to them.[42]
  2. The Applicant told the Tribunal that when she followed up with the director about the progress of the visa application, he told her that it takes time, and he would let her know when the decision was made.[43] After a while she became suspicious and worried that she would be overstaying her visa.[44] She made further inquiries with the director and he ‘assured [her] the visa had been approved.’[45] She became aware that the director had ‘ulterior motives’ when he started asking her for dinner and making sexual advances, and she realised she had been ‘duped’. [46] She was ‘in a very difficult situation’ because she ‘was unlawful’ and was not prepared to have further contact with the director because she ‘felt unsafe’.[47] She wanted to return home, and if she thought she could have gone to the airport and back to the Philippines, she would have done so. She had a return plane ticket she was unable to use, and she forfeited the payment. She was ‘extremely apprehensive’ that if she went to the airport or to the Department that she would have been detained in a detention centre.[48]

Immigration detention and removal – January 2002

  1. On 17 January 2002, the Applicant was located and detained by Immigration officers, having overstayed her fourth tourist visa. She was detained at Villawood Immigration Detention Centre with [REDACTED] who was recorded as her partner.[49] On 26 January 2002 she was removed from Australia as an unlawful non-citizen under s 198(1) of the Migration Act.[50] The Applicant told the Tribunal that [REDACTED] was her flatmate not her partner.[51] They were picked up and detained at the same time, but they were not accommodated together at Villawood.[52] They travelled together back by plane to Manila.[53]
  2. The Applicant’s evidence at the hearing was that it was after she refused the director’s advances that she was ‘picked up’ by immigration and detained.[54] She told the Tribunal that she was ‘frustrated’ and ‘depressed’ because she believed that her visa application was ‘ongoing’, and therefore she believed that she did not become unlawful when her visa expired in September 1999.[55] She claims she was ‘not deported’ but rather left Australia ‘voluntarily’.[56] She was accompanied to the airport by immigration officers, but she was not handcuffed, and she paid for her own ticket to return.[57]
  3. The Applicant told the immigration officers that she had lost her passport and had reported this to the police. She went to the consulate to get a new passport and her visa expired. [58] The Applicant told the Tribunal that she gave her passport to the director and he had it when the visa application was being processed. But he returned it to her when they had their ‘disagreement’, and she had it with her when she was apprehended by immigration officers, which was two days later.[59]
  4. In a letter to the Department dated 25 March 2013 the Applicant wrote:

‘Due to the recent passing of my mother and having my purse stolen at the Sydney CBD containing my travel documents which I reported to the Sydney CBD Police ... I probably was not thinking clearly and I naively allowed my tourist visa to expire before having the business visa in my hand.’[60]

  1. The Record of Interview dated 18 January 2002 recorded the Applicant’s date of birth as 13 November 1954 and her marital status as ‘separated’.[61] She agreed that she wrote that she was married in the tourist visa applicant so she could demonstrate to the Department that she had ‘(something) to go back to’.[62] This, she said, was accurate because she and her husband were still married and there is no divorce in the Philippines.[63]
  2. The Applicant told the Tribunal that she did not sign the Record of Interview on one page because she ‘disagreed’ that she worked as a nurse assistant with the Nursing Excellence Agency from January 2001 to January 2002.[64] She claims she did not work in Australia. She had a business boutique in the Philippines and her brother was sending her money.[65] She was waiting for her business sponsorship visa to be decided. The Record of Interview has the Applicant’s signature on each page, but she did not sign the final page acknowledging that she had signed each page of the interview record as an accurate record of the interview.[66] She claims that her signatures on the document were merely to acknowledge that she understood each interview question in English.[67]

Prospective marriage visa application – August 2003

  1. On 27 August 2003, the Applicant applied for a prospective marriage visa (Class TO (Prospective Marriage – Temporary))at the Australian High Commission in London.[68] The Applicant’s sponsor on the visa application was an Australian citizen, Mr G. He was a disability trainer and was with clients on a bus trip when they met in Sydney in April 1999.[69] They became ‘best friends’[70] and they travelled to the United Kingdom in January 2003 where the Applicant worked as an assistant nurse.[71] They returned to Australia on 7 January 2004 following the grant to the Applicant of a prospective marriage visa, and they were married on 28 April 2004.

Family details and prior visit to Australia

  1. In her visa application the Applicant declared her date of birth as 13 November 1966. She also declared that she had not previously been married.[72] She stated she had three ‘siblings’, that she had no children, and that her parents were AB and TE.[73] In her oral evidence, the Applicant told the Tribunal said that she listed her children as her ‘siblings’ because they grew up as brothers and sisters. She ‘was not thinking clearly’ and made ‘a mistake of putting everything in one box’.[74] She did not read the questions properly and she was thinking she was her declaring ‘dependents’, who were at that time her children and her brother.[75]
  2. When she realised these ‘mistakes’, she informed an immigration officer at the consulate in London of the ‘discrepancies’ in her application.[76] She said she believes she has a copy of the letter, but it was not provided to her advocate or the Tribunal in these proceedings. When asked to comment on there being no record of this letter in the Department’s files, the Applicant stated that her ‘immigration file’ is missing, and that material ‘favourable’ to her citizenship application is ‘all missing’.[77] A handwritten letter dated 17 March 2004 is before the Tribunal that is addressed to the Australian High Commission in London advising of the errors in the Applicant’s parents’ names and her siblings. This letter was provided by the Applicant to the Department on 17 October 2005 in response to the Notice of Intention to Consider Cancellation under section 109 of the Migration Act dated 23 September 2005.[78]
  3. The Applicant told the Tribunal that she stated in her visa application form that she had not been married or in a de facto relationship because she had never been legally married.[79] In relation to her parents’ names, the Applicant said that she did not know their exact names and she used their nicknames.[80] She agreed that her father’s surname was not [REDACTED], which is the surname of her first husband.[81]
  4. The Applicant acknowledged in her visa application that she had previously overstayed a visitor visa but claimed to have left ‘voluntarily’.[82] She wrote that the reason she overstayed was because of the ‘unexpected death of mother and involvement in funeral arrangements at the time of visa renewal.’[83] In her oral evidence, the Applicant agreed that her mother died in April 1999, and that she returned to the Philippines for her funeral and then returned to Australia on the same visa which was multiple entry.[84] She said she was ‘depressed’ when her mother died, and she was waiting for the approval of the business visa.[85]
  5. The Applicant told the Tribunal that she did not think that there was a problem with her marrying Mr G because she was underage when she was married in the Philippines.[86] She believed that she did not need to get a divorce from her first husband because she was ‘not actually legally married.’[87]

Supporting documents

Statement from ‘brother’

  1. The Applicant provided a signed statement made by her ‘brother’, EAEB dated 20 December 2002 documenting the development of the Applicant’s relationship with Mr G and how happy he made her.[88] During cross-examination, the Applicant agreed that EAEB is not her brother but her son.[89] She repeated that they ‘were all raised as brothers and sisters at the time.’[90] She said that her son signed the letter as her ‘brother’ because he believed he was her brother due to the ‘closeness’ of their ages.[91]

Degree certificates

  1. The Applicant provided a Testamur for the grant of a Bachelor of Science in Elementary Education issued by Lipa City Colleges to the Applicant on 17 March 1984 and a Testamur for the grant of a Bachelor of Science in Nursing issued by the Far Eastern University to the Applicant on 18 March 1989.[92] The Applicant was asked about checks conducted by the Department in relation to these documents. Far Eastern University and Lipa City Colleges confirmed that these documents did not originate from their respective institutions and they are not genuine.[93] Further verification with Lipa City Colleges confirmed that she graduated from the Bachelor of Science in Elementary Education on 16 April 1974.[94]
  2. The Applicant’s response in relation to the information provided by Lipa City Colleges was that she had seen the letter and ‘I really don't know what happened there’.[95] She told the Tribunal that she graduated in April 1984 when she was 18 years old having finished her studies when she was aged 17 years.[96] As regards the Bachelor of Science in Nursing issued by the Far Eastern University the Applicant said she completed the degree. She had found out that the certificate was ‘missing’ and she intended to follow it up but she was in Australia so she ‘left it that way’.[97] But she did not use the degree certificate to obtain work as a registered nurse, so she did not think it was a problem.[98]

Birth certificate

  1. The Applicant provided a Republic of Philippines ‘Certificate of Live Birth’ No [REDACTED] dated 27 November 1966 stating that [REDACTED], daughter of ACB and TTE, was born at home in Tanauan, Batangas Province, on 13 November 1966.[99]
  2. During cross-examination the Applicant agreed this is the birth certificate she had used to obtain a new passport and that she included with her visa application.[100] She also agreed that [REDACTED] was not the name of her father, nor had she been given that name when she was born.[101] However, she said that the certificate was all she had, and that it was given to her by the local registrar.[102] She said she did not know why [REDACTED] was the surname used in the certificate.[103]
  3. Other documents provided in support of her visa application included a certified copy of a Philippines Passport issued to [REDACTED], date of birth (DOB) 13 November 1966,[104] with associated United Kingdom work permit details from December 2002,[105] and a Philippines National Bureau of Investigations record clearance for [REDACTED], DOB 13 November 1966, dated 16 October 2002.[106]
  4. On 24 September 2003, the Applicant was granted the prospective marriage visa by the Australian High Commission.[107] She arrived in Australia on 7 January 2004.[108]

Care of mother-in-law

  1. The Applicant and Mr G returned to Australia in January 2004 because his mother was unwell.[109] The Applicant provided her with daily care, including preparing her meals, doing her laundry and giving her medication until she died in 2011.[110] She also assisted her elderly neighbour with his garden, and would share food with him, and help him with household problems when they arose, for example the internet not working.[111]
  2. In his oral evidence to the Tribunal, Mr G confirmed that that the Applicant looked after his mother from around 2005-06 until she passed away in 2011.[112] His mother had macular degeneration which affected her sight, and she needed a lot of assistance and care. Her condition improved following an operation, but she was then diagnosed with oesophageal cancer around 2008-09. The Applicant looked after his mother’s personal care and helped with her injections at times. His mother told him that the Applicant ‘was the best daughter in law she could possibly have’.[113] He explained to the Tribunal how the Applicant would juggle working night shift with cooking and cleaning and that she would take his mother on ‘outings’ on her days off.[114] He confirmed that the Applicant helped their elderly neighbour when he moved to the area, and he would often give her gifts to show his appreciation. She also would help people at work with their workplace issues.[115]

Employment

  1. The Applicant has worked at the same aged care facility since 2004.[116] She has regularly worked night shift four nights a week from 10pm to 7am.[117] She had 40 residents in her care until 2018 when another staff member was added to the shift.[118] When the aged care home was sold in July 2020 she continued to work at the home for the new owner.[119] She told the Tribunal that she a great deal of job satisfaction, and she enjoys caring for the elderly. There have never been any complaints made about her by the residents or her work colleagues in the 17 years she has worked at the home.[120]

Application for partner visa – June 2004

  1. The Applicant applied for Partner (Temporary) visa subclass 820 and a Partner (Permanent) visa subclass 801 on 1 June 2004.[121] She provided the following information in her visa application form.

Details of family members

  1. In the personal details section of the application form, the Applicant named EMEB (DOB October 1979) and EAEB (DOB May 1982) as her children,[122] and identified JIGE (DOB 23 November 1977), who she described as single,[123] as her only sibling. She wrote that her parents were RAB (DOB 9 August 1938) and TAGE (DOB 24 August 1945).[124] Both were said to be deceased.
  2. The Applicant was questioned about the incorrect names for her parents she provided in the visa application form. The Applicant said that she was advised by the Department to use these names, and her husband has a written record of this advice.[125]
  3. The Applicant was asked about why she only listed one sibling in the application form. She said that she has no knowledge of the first three of the four children that are recorded in Philippine government records as having been born to her mother:
  4. The Applicant was asked whether she omitted from her application form the name and details of JGE2 born on 23 November 1966, ten days after her claimed birth date on 13 November 1966, because she did not want the Department to know she had a brother born within days of her birth. She said this was ‘not correct’. [127] In relation to JIGE born on 23 November 1977, who the Applicant listed as her brother, she was asked whether he is in fact her child and was registered to her parents because she was not married at the time of his birth. She said this is ‘incorrect’.[128]

Previous visits to and removal from Australia

  1. In answer to a question in the application form about her previous visits to Australia, the Applicant wrote that she arrived in July 1998 and departed in April 1999 (approximately).[129] When questioned about this during cross-examination, the Applicant said that this was a ‘mistake’ as she departed Australia in January 2002.[130]
  2. In answer to questions in the application form about whether she had ever been removed or deported from Australia or whether she had ever left any country to avoid being removed or deported she answered ‘no’.[131] She told the Tribunal that she gave this response because she was on a ‘supervised departure’ and she left Australia ‘voluntarily’ in January 2002.[132]

Marital status

  1. In answer to questions in the application form about whether the Applicant had ever been married or in a de facto relationship she answered ‘no’.[133] She agreed that in her tourist visa application in 1998 she had answered that she was ‘married’ and said this is ‘because it was a tourist visa’.[134] She also agreed that in 2002, when she was apprehended and detained, she told the Department that she was ‘separated’.
  2. In her oral evidence, the Applicant confirmed that she was not divorced nor had her marriage to Mr Barreda been annulled when she married Mr G in April 2004.[135] She told the Tribunal that they had advice from the Attorney-General’s office that she and Mr G could be married.[136] When asked to provide this advice she said she would have ‘to look for it’.[137]
  3. In his oral evidence at the hearing, Mr G stated that he believes he called the New South Wales Attorney General’s Department, and he believes he spoke to a legal officer. [REDACTED]. He told the Tribunal:

‘The advice I got at that time was that we didn’t have to worry because no one lied. We didn’t have to worry about whether we got married, we wouldn’t be in a bigamous marriage ... So we got married in early 2004 just based on that advice.’[138]

  1. Mr G told the Tribunal that he also went to see an immigration lawyer and was given some written material about marriage law in the Philippines and the virtual impossibility of obtaining a divorce.[139] He also checked with Legal Aid and was told that based on what he had told them if the person was underage, and this could be proven, then the marriage would be ‘null and void’.[140]
  2. The marriage certificate that the Applicant submitted with her visa application stated that she was ‘Never legally married’ and incorrectly stated her parents’ names. She told the Tribunal that she included the names of her parents and her date of birth as 13 November 1966 as written in her birth certificate. She said she this discussed with the marriage celebrant who said that was fine.[141]
  3. The Applicant was granted a subclass 820 partner visa on 1 June 2004.[142]
  4. On 17 August 2004 the Applicant made dependent child (subclass 445) visa applications for EMEB and EAB to allow her children to join her in Australia.[143]

Inquiries with National Census and Statistics Office

  1. In August 2004 and February 2005,[144] the Australian Embassy in Manila made enquiries with the Civil Registrar General of the National Census and Statistics Office in Manila, regarding EMEB’s birth to the Applicant and a listed father, EB, supported by marriage contract for marriages on 20 September 1979 and 17 October 1981, respectively, and in respect of confirmation of the Applicant’s marriage history based on her DOB 1966.
  2. On 3 March 2005, the Office of the Civil Registrar General advised the Australian Embassy that they had no record of a marriage for the Applicant (DOB 1966) between 1973 and 2002.[145]
  3. On 21 March 2005, the Australian Embassy sought confirmation of the Applicant’s 13 November 1954 date of birth (DOB 1954) from the Civil Registrar General, and confirmation of her marriage based on that date of birth.[146]
  4. On 1 September 2005, the Australian Embassy sought a certified copy of the Applicant’s 1966 birth certificate.[147] On 15 September 2005, the Australian Embassy received notice from the Office of the Civil Registrar that they did not have a record of the Applicant’s birth in 1966.[148]

Freedom of information (FOI) applications

  1. The evidence before the Tribunal is that Mr G made a FOI application on 6 December 2002 to obtain access to the Applicant’s immigration files so as to determine if any records were ‘incorrect, incomplete, or misleading’.[149] He was advised that the visitor visa file was ‘missing’.[150]
  2. A further application was made by him on 13 October 2005 requesting the Department files for all visa applications made by the Applicant.[151] A subsequent application was made in 2007. Both the 2005 and 2007 requests sought access to the 2002 FOI request which was not released until 2007.[152]

Cancellation of partner visa – March 2006

  1. On 23 September 2005, a delegate of the Respondent issued the Applicant with a Notice of Intention to Consider Cancellation of her partner visa under s 109 of the Migration Act (‘NOICC’).[153] The NOICC alleged that the Applicant had provided a false date of birth (13 November 1966) in her prospective marriage visa application, and that she similarly made false declarations in that application regarding her marital status and children/siblings.
  2. In response to that NOICC, on 13 October 2005 Mr G made an application under the Freedom of Information Act 1982 (Cth) (‘FOI Act’) on the Applicant’s behalf to amend the Department’s records regarding her date of birth.[154] Shortly thereafter, the Applicant appointed a solicitor and migration agent to request access to her records under the FOI Act and to respond to the NOICC.[155] The Applicant’s solicitor relevantly submitted to the Department as follows:[156]

‘The important facts for you to be aware of are that [the Applicant] was born on 13 November 1966. [REDACTED] Therefore, he organised for the local registry to alter her birth certificate to state that she was born on 13 November 1954. This made her of marriageable age. [REDACTED]. It was only many years later that she became aware of her legal rights and she has been trying to correct the subsequent errors resulting from this since then.’

  1. On 21 March 2006, a delegate of the Respondent cancelled the Applicant’s partner visa under s 109 of the Migration Act. The same delegate later set aside that ‘decision’ on 24 March 2006 as it was made in a procedurally invalid manner.[157]
  2. A valid decision to cancel the visa was made and communicated to the Applicant on 9 November 2006.[158] That decision was the subject of an application for merits review by the then Migration Review Tribunal (MRT).[159] The MRT decided to exercise its discretion not to cancel the Applicant’s visa. The Tribunal’s reasons are outlined below in [118]-[121].

Grant of permanent partner visa – February 2008

  1. The Applicant’s children, EAEB and EMEB applied for dependent child visas on 18 October 2007.[160] These visa applications were made through the Australian Embassy in Manila and led the Embassy to make enquiries in the Philippines to establish the true identity of the Applicant. This resulted in the Embassy matching details of [REDACTED] (DOB 1954) with those of the Applicant (DOB 1966).
  2. The Applicant was granted a permanent partner visa on 7 February 2008 and that included visas for her two children.[161]
  3. On 6 March 2008, the Applicant applied to amend the Department’s records in relation to her date of birth under the FOI Act.[162] On 30 June 2008, an authorised officer made a decision to amend her date of birth from 13 November 1954 to 13 November 1966.[163]

First citizenship application – February 2009

  1. On 25 February 2009, the Applicant made an application for conferral of Australian citizenship under s 21(1) of the Citizenship Act.[164] On 21 May 2009, that application was approved under s 24(1) of the Citizenship Act [REDACTED]. However, the Department put arrangements in place to prevent the Applicant making the pledge of commitment due to concerns about her character.[165]
  2. By a letter dated 8 February 2010, the Department notified the Applicant that it was considering cancelling the approval of her application and invited her to comment on the

‘continuous pattern of misrepresentation to, and provision of, misleading information, including, but not limited to, [the Applicant’s] identity on applications submitted to the department, dating as far back as 1998’.[166]

  1. In March 2010, the Registrar of Lipa City Colleges in the Philippines informed the Department that the Applicant’s purported Testamur for a Bachelor of Science in Elementary Education was not genuine,[167] and that the Applicant had not been enrolled with their institution.[168] The College later confirmed in writing to the Department that the Applicant had in fact graduated from that institution with that degree, but had done so in April 1974, not in March 1984.[169]
  2. On 11 May 2010, the Department sent a more particularised natural justice letter to the Applicant.[170] The Applicant responded and also referred the matter to the Commonwealth Ombudsman which conducted an investigation.[171]

First decision to cancel citizenship conferral approval – July 2010

  1. By a decision made on 5 July 2010, a delegate of the Respondent cancelled the Applicant’s conferral approval under s 25(1) of the Citizenship Act.[172] The delegate also (re)amended the Department’s records to state that the Applicant’s date of birth is 13 November 1954.[173]
  2. On 8 July 2010, the Applicant sought review of the cancellation decision in the Tribunal. This application was withdrawn by the Applicant on 2 May 2011,[174] and dismissed by the Tribunal under s 42A(1B) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’). A reinstatement application/application for extension of time was refused on 19 July 2011.[175]
  3. On 2 November 2012, the Applicant filed an application in the then Federal Magistrates Court, seeking review of the cancellation decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth), and requesting an extension of time in which to bring that application.[176] On 13 February 2013, the delegate’s decision was quashed by consent on the basis that there had been a breach of the rules of natural justice.[177] However Federal Magistrate Cameron rejected an argument made by the Applicant regarding the date upon which the delegate’s decision should be set aside.
  4. The Applicant commenced proceedings in the Federal Court under s 39B of the Judiciary Act 1903 (Cth) on 3 April 2013. The Federal Court application was dismissed by Buchanan J.[178] An appeal from that decision was dismissed by the Full Court. The Full Court referred critically in its reasons to the Department’s conduct in preventing the Applicant from taking the pledge prior to the cancellation decision.[179]

Second decision to cancel citizenship conferral approval – April 2013

  1. On 8 April 2013, a different delegate of the Respondent made a decision to cancel the Applicant’s citizenship conferral approval on the basis that she was not of good character.[180]
  2. The Applicant sought review of that second cancellation decision in the Tribunal, but that application was withdrawn, and the Federal Court proceedings were amended to include a challenge to the second cancellation decision.[181]
  3. On 31 August 2015, the Tribunal rejected a collateral challenge to the second cancellation decision, by way of an application for reinstatement of the previously withdrawn and dismissed proceedings and/or an extension of time to seek review of the decision.[182]

Identity Assessment Report – February 2016

  1. In January 2016, the Department sought verification from the Philippines National Statistics Office (‘NSO’) concerning its records relating to the Applicant’s family.[183] Evidence was obtained from the Philippines authorities in the form of the marriage certificate of the Applicant’s parents and the birth certificates of their children.
  2. On 10 February 2016, a specialist identity officer employed by the Department produced an Identity Assessment Report in respect of the Applicant.[184] The Report noted that the marriage certificate of the Applicant’s parents’ AG and RE provided by the NSO, stated that they married on 9 December 1953, and her father was recorded as 27 years old, and her mother as 19 years old on that date.
  3. The following are recorded in the Report as reported by the NSO as the children of the Applicant’s parents: [185]
    1. Name: [REDACTED]
DOB: 13 November 1954

POB: Boot, Tanauan, Batangas

Parents: AG (19) & RE (28)

(age of parent at child’s birth indicated in parenthesis)

  1. Name: NGE

DOB: 28 September 1956

POB: Maugat, Tanauan, Batangas

Parents: AG (20) & RE (30)

  1. Name: JGE1

DOB: 1 May 1964

POB: Tanauan, Batangas

Parents: ALG (29) & RKE (38)

  1. Name: [REDACTED]

DOB: 13 November 1966

POB: Quezon City, Metro Manila

Parents: ALG (19) & RKE (21)

Remarks: LATE REGISTRATION (Reg No. 2005-9464)

  1. Name: JGE2

DOB: 23 November 1966

POB: Maugat, Tanauan, Batagas

Parents: ALG (32) & RKE (40)

  1. Name: JIGE

DOB: 23 November 1977

POB: Binitayan, Daraga, Albay

Parents: ALG (34) & RKE (37)

  1. The Report found that the births of four of the children ‘were all timely registered and reflect the correct ages of the parents once the ages of the parents relative to the birth succession is calculated.’[186] It concluded that the late registration birth of the Applicant on 13 November 1966 ‘is an impossibility as no two children from the same parents can be born days apart from each other (in addition, [JGE]’s birth is declared as a single birth – not as a twin).’ [187]
  2. In relation to the birth of JIGE on 23 November 1977, the Report noted that this too was a late registration in 2002. [REDACTED].[188]
  3. The Report also recorded the information received from the NSO in relation to the dates of birth of the Applicant’s children and her age and date of birth on those dates:
  4. The Report recommended that the Applicant’s details be amended to record a date of birth of 13 November 1954.[189] It was provided to the Applicant for comment on 16 November 2016.[190]

FOI application – February 2018

  1. On 22 January 2018, the Department formally ‘corrected’ the Applicant’s records to record her date of birth as 13 November 1954.[191]
  2. The Applicant, through her husband Mr G, applied to amend her records on 3 February 2018 under the FOI Act.[192]
  3. On 7 March 2018, a Departmental FOI Officer refused the request for amendment under s 50 of the FOI Act, on the basis that the officer was not satisfied that the information held by the Department was incomplete, incorrect, out of date or misleading.[193]
  4. The matter was referred to the Tribunal by the Australian Information Commissioner pursuant to s 54W(b) of the FOI Act. The Tribunal affirmed the decision not to amend the records by a decision made on 25 June 2019.[194] The Tribunal’s reasons are outlined below in paragraphs [122]- [131].

Second application for citizenship – July 2020

  1. On 9 July 2020 the Applicant made a second application for citizenship.[195]
  2. In a letter to the Applicant dated 2 September 2020, she was informed that there was information before the Department that indicates that she may not be of good character for the purposes of her citizenship application.[196] The information in the natural justice letter indicated that she had displayed a continuous pattern of misrepresentation to, and provision of, misleading information including, but not limited to, her identity on applications submitted to the Department, dating as far back as 1998. She was invited to respond to or comment on the information relevant to the issue of whether she is are of good character.
  3. On 27 September 2020, a response was received via email from the Applicant’s advocate representative, which included two submissions dated 25 June 2020 (initially included with application at the time of submission) and 27 September 2020.
  4. A further opportunity was provided to the Applicant to respond on 2 November 2020.[197] On 13 November 2020, an email submission was received from the Applicant’s advocate attesting to her good character.
  5. The citizenship application was refused on 9 December 2020 (‘the Reviewable Decision’).[198]
  6. On 17 December 2020 the Applicant lodged with the Tribunal an application for review of the Reviewable Decision.[199]

Evidence of Dr Imelda Deinla

  1. Dr Deinla provided a statutory declaration dated 28 May 2021,[200] and gave oral evidence and was cross-examined at the hearing. She holds a Bachelor of Laws and a Bachelor of Political Science from the University of the Philippines Diliman, and a Master of Laws and a Doctor of Philosophy degree from the University of New South Wales. Her PhD thesis was about the rule of law in Southeast Asia. She became a member of the integrated bar in the Philippines in 1995.[201] Dr Deinla was a practising lawyer in the Philippines before coming to Australia.[202] She practised in the field of family relations, corporate law and property law, as well as cases dealing with violence against women.[203]
  2. During cross-examination Dr Deinla said she does not remember being given a copy of the Tribunal’s expert guidelines for people giving expert and opinion evidence in the Tribunal.[204] She said she was only given the Applicant’s Statement of the Facts, Issues and Contentions by the Applicant’s advocate to allow her to familiarise herself with the case.[205]
  3. Dr Deinla told the Tribunal that it is ‘general knowledge’ in the Philippines that documents ‘are presumed to be irregular’.[206] Therefore unless a document is ‘officially (indistinct) by the authorities in the Philippines they are presumed to be irregular.’[207] She confirmed that if a document purports to be a birth certificate issued by the NSO, it is presumed to be regular.[208] To displace this presumption ‘the office ... has to impugn that document, then it has to undergo a very specific process ... through a court process wherein the interested party would have to bring that case before the court.’[209]
  4. Dr Deinla told the Tribunal that in her experience, it is ‘very common ... in the Philippines to alter birth certificates [REDACTED].’[210]
  5. Dr Deinla was asked whether there is any reason why a person who purports to have been married underage would not be able to annul a marriage in a country where there is no divorce. She told the Tribunal that annulment through the church is an option, ‘but only the rich and famous’ can access this, ‘because it has to go through to Rome.’[211] The law was changed in the Philippines in 1988 when ‘the family code with annulment was passed’.[212] However it is difficult for many women to avail themselves of this option because of the ‘very, very, very high bar’ that must be met. One of these is a ‘requirement for a psychological examination to determine psychological incapacity’ which makes it an expensive process.[213] It was only in 2020 that the Supreme Court made it easier for Filipinos to file annulment proceedings.[214]
  6. The Tribunal asked Dr Deinla about the status of a marriage when the woman is underage. She said that this is called a ‘voidable marriage’ so it remains valid until it is ‘voided’. The party ‘has every right to actually proceed for annulment if he or she wishes in the future.’[215]
  7. Dr Deinla summarised the available options for Filipino couples who wish to end their marriage:

‘... the only two kinds of separation recognised one is legal separation, but that one does not entitle the person to remarry. But you can actually ask for a legal separation. And the second one is annulment, that is actually akin to divorce, but you have to provide valid grounds for that and the grounds are only very limited under the Family Court of the Philippines.’[216]

  1. In relation to the custom in the Philippines around the naming of family members, Dr Deinla told the Tribunal that a ‘relationship is not just defined by the proximity - by blood proximity, but ... also defined by the kind of relationship the family members have invested to each other.’ For example, ‘it is not uncommon for people to actually call sisters, brothers, the aunts, the cousins, or to call the mothers, fathers ...’[217]

PREVIOUS TRIBUNAL DECISIONS

Migration Review Tribunal review – May 2007

  1. The MRT made the following findings:
  2. The MRT was satisfied that:[230]

‘...in her prospective spouse visa application in 2003, the visa Applicant provided incorrect information pertaining to her date of birth, her marital status, whether she had been previously married and indeed, the proper details of family members.

In addition to this, she provided incorrect information in her spouse visa application of 2004 pertaining to her date of birth, the name of her parents and her marital status.’

  1. The MRT concluded that it could not be satisfied that the Applicant did not provide a ‘bogus document’ relating to her date of birth in her prospective spouse visa application.[231] It also was not satisfied that she had taken reasonable steps to correct the incorrect details, including not being satisfied that she was unable to obtain a birth certificate that was correct in all details until 2005.[232] On that basis it found that the power to cancel her visa was enlivened.[233]
  2. The MRT then went on to consider whether, as a matter of discretion, the visa should be cancelled. After considering the matters set out in Reg 2.41 of the Migration Regulations 1994 it decided that, notwithstanding its finding of non-compliance, and taking into account the health of the Applicant’s mother-in-law and the Applicant’s work history, the preferable decision was that the visa should not be cancelled, and the decision was set aside.[234]

Administrative Appeals Tribunal review – June 2019

  1. In its decision dated 25 June 2019, the Tribunal included a summary from the Respondent’s Statement of Facts Issues and Contentions in which it had noted that the Department relied heavily on the information in the previous applications for visas, amendments to records, and citizenship applications as well as the Identity Assessment Report dated 10 February 2016.[235]
  2. The Tribunal referred to the following findings made in the Identity Assessment report:[236]
  3. The Tribunal set out what it described as ‘Difficulties with the Applicant’s Statements’:[237]

‘There are instances of where the Applicant has clearly and knowingly provided false information to the Australian authorities. This is particularly the case in relation to the application made by Mrs [REDACTED] in London for a Fiancée visa. In that application she falsely stated that her two children were in fact her siblings. She knew this was false.

The Applicant also overstayed her visa, resulting in her being placed in immigration detention and then removed in January 2002. She would have been aware that this removal would preclude her returning to Australia for a period of time and yet, with other documentation she re-entered the country within two years. At the time of her immigration detention interview she signed documentation giving her date of birth as 13 November 1954.

During the course of giving oral evidence the Applicant stated that she was unaware of the date of the birth of her parents, nor that she was aware of having several brothers and sisters, nor of their ages. She was also unable to recall details of a second marriage, for which there is an unchallenged record of occurrence in 1981.

She claims on the one hand that she had a happy childhood (prior age 12) but also that she was unaware of who her mother was, at least until the age of four, being in the care of her grandparents. In part of her testimony at the Tribunal hearing the Applicant even advanced the proposition:

“My mother is not my mother. I am adopted or something. See – see this is my personal life you are discussing. I don’t know who is my mother.”’

  1. In relation to the Applicant’s response to questions about having identified her children as her siblings in her prospective spouse visa application, the Tribunal said:[238]

‘The Tribunal does not accept this explanation. Even if the Applicant were reflecting the fact that her children were originally told that she was their sister and not their mother, and they were raised in this belief, two factors count significantly against her. The first is that she knew that she had other siblings, details of whom she did not declare. More damaging for her credibility, records from the London office indicate that also submitted by her was “a statement in support of the application/relationship by [EAEB] who describes himself as her brother. [EAEB] knew this was false, he had known of the true situation since he was 16 years old. The Applicant knew it was false. Both the declaration and the supporting document were knowingly false and intended to deceive the Australian authorities.

None of these matters sit easily with the Tribunal.’

  1. The Tribunal further noted that the Applicant’s denial of knowledge of details about her immediate family - the age of her parents, the existence of or relationship with her siblings or the details of her church wedding, ‘does not speak well to her credit nor to the strength and reliability of her memory, even given the impact of traumatic events.’[239]
  2. The Tribunal concluded:

‘... [I]t has to be observed that the Applicant has a record of deceitful dealing with the Australian government. She was removed from Australia in 2002 after overstaying her visa and while here worked unlawfully. She knowingly provided false information in support of a visa application and made her son complicit in this activity by getting him to provide a statement on her behalf which he knew to be untrue.’[240]

  1. The Tribunal stated that it was not its task to ‘make determinations about the character and credit of the Applicant or about some of her dealings with the immigration, citizenship and other government authorities’. It recognised that its function was limited to determining whether there was enough evidence that the Applicant was born in 1966 to enable Departmental records to be altered to record this fact.[241]
  2. The Tribunal considered the ‘weight of evidence’ supporting each of the contended years of birth:[242]
  3. The Tribunal identified the ‘fundamental question’ as to whether it accepted that the evidence before it established that the Applicant’s year of birth was 1966 rather than 1954 and answered ‘NO’.[245] It ‘(saw) no reason to dispute the authenticity of the 1954 evidence (including birth certificate, social security and taxation details supplied by the state authorities of the Philippines)’ and was ‘unpersuaded by any of the 1966 evidence other than the wedding photographs’ which were ‘suggestive of a person closer in age to 15 than 27 [years]’ although it noted its reservations in this regard.[246] It also gave ‘some weight to the comments by the Applicant’s children about their early recollections of family life and their relationship with “ate” [REDACTED].’[247]
  4. A key reason for the Tribunal’s conclusion was that the Applicant’s brother, JGE2, was born on 23 November 1966, ten days after the date the Applicant purports to be her date of birth.[248] The Tribunal concluded that the Department’s decision was correct,[249] and its records were not ‘incomplete, incorrect, out of date or misleading’ and were therefore not amenable to amendment.[250]

SUBMISSIONS

Applicant

  1. The Applicant submits that what is required in her case is a broad assessment of her character, enduring moral qualities and suitability to obtain citizenship:[251] Godley v Minister for Immigration and Multicultural and Indigenous Affairs;[252] Prasad and Minister for Immigration and Ethnic Affairs.[253]
  2. In exercising his discretion, the Respondent unduly focussed on matters relating to the Applicant’s date of birth and the documentation surrounding this issue.[254] Insufficient regard was paid to her overall circumstances and to her character as a whole.[255] Once the Applicant’s conduct in relation to her date of birth and her interactions with the Department is seen in proper context, the concerns relating to her character evaporate.[256]
  3. The Applicant contends that each of the matters raised by the Respondent said to indicate that she is not of good character do not truly raise a character concern.[257] Further, regardless of the determination of those particular issues, the Applicant submits that a holistic assessment of her character indicates that she is of good character.[258]
  4. The Applicant concedes that the balance of the documentary evidence, including government and educational records, does not support her contentions as to her date of birth being 13 November 1966.[259] [REDACTED]
  5. The Applicant submits that in every interaction with the Australian government since first applying for a tourist visa, and following her obtaining an updated Filipino passport, she has maintained a firmly and sincerely held belief that her date of birth is 13 November 1966.[260] Further, she has at all material times candidly and openly explained the reasons for and circumstances in which she came to hold this belief, and her reasons for rejecting the documentation which record her date of birth as 13 November 1954.[261] She has provided, at all stages of her interactions with the Department, a consistent narrative as to her belief in her date of birth.[262]
  6. The Applicant’s purpose in seeking to change her date of birth was to be truthful about her own date of birth, and that her application to correct her date of birth was the first time that she sought to have some control over her own identity. Further, her purpose in seeking to correct her date of birth, was to be true to her own conscience about her identity and to enable her to live by what she believes is her true birth date.[263]
  7. The Applicant has maintained her belief in her date of birth not for any personal gain or any benefit in relation to her application for citizenship.[264] She has not lied in order to obtain a citizenship or migration advantage, nor has she sought to make herself a favourable candidate for citizenship by maintaining her belief in her date of birth.[265] She does not and has not habitually provided false or inconsistent information to governmental authorities.[266] If the Applicant were born in 1954 she would be entitled to pension in both the Philippines and Australia, but she has never sought to access these benefits because of her belief that this is not her correct birth date.[267]
  8. The Applicant submits that it is not unusual for a person to have a strong belief about their age, age being a fundamental part of a person’s identity. [REDACTED]
  9. The Applicant submits that the only circumstance in which a genuine character concern can arise due to the provision of inconsistent information is when it is provided to conceal or minimise an unfavourable aspect of a person’s past or present behaviour or that it otherwise involves some form of material deception that confers some benefit on them or someone else.[268] The decision-maker then must take a further step to analyse why that then leads to a conclusion that the applicant is not of good character, on the holistic assessment of their character required by the Act.[269]
  10. The Applicant submits that the Respondent reasoned that it automatically followed from the Applicant’s provision of inconsistent information that she is not of good character. However, the Respondent did not appropriately inquire as to why the Applicant provided that inconsistent information and in what circumstances.[270] The Respondent thus failed to appropriately undertake the context-sensitive nature of the inquiry required by the character test. Nor was it appropriately explained why this constituted ‘material deception’ under the Citizenship Instructions.[271]
  11. The Applicant’s contends that her circumstances are distinct from those in which an applicant engages in self-serving deception to advance their case and which requires some form of deterrence.[272] Nor has any aspect of the integrity of the immigration or citizenship system been affected by her maintaining her belief in her date of birth, including in circumstances where there is no doubt about her identity.[273]
  12. The Applicant submits that her behaviour is consistent with a person who maintains a sincerely held belief in their date of birth, which go to circumstances fundamental to their own conception of themselves. She should not be criticised for holding true to that belief.[274] Each of the allegations or imputations as to her character relate to her honest belief in material that has been given to her, and a commitment to rely, where appropriate, on that documentation. She is someone who is caught in a system which has never allowed her to identify, as she identifies, as someone who was born on a particular date and where later documentation has represented otherwise.[275]
  13. In relation to the Applicant’s overstaying of her visa from 1999 to 2002, she honestly believed that there was an application for another visa that was in progress. She therefore believed she was lawfully in the country and, when it became clear she was not, she accepted that she needed to leave and paid for her own plane ticket home.[276] Her period of overstaying and the associated documentation does not speak to her bad character. If it does in anyway, this is significantly outweighed by the length of time since it occurred.[277]
  14. As regards the inconsistencies in relation to her children, her parents’ dates of birth and identity, the Applicant has been in a lose/ lose situation from the beginning because she has lived in a world in which her documents have never represented her true identity or accorded with her understanding of her lived experience.[278] Inaccuracies in information she provided to the Department reflect this lived experience, not a desire to deceive.[279]
  15. The following matters were disregarded or given insufficient weight in undertaking an assessment of the Applicant’s enduring moral qualities. First, she has no criminal record. She has never been charged or investigated for any criminal offence, in Australia or elsewhere.[280] Secondly, the Applicant has made outstanding contributions to her community through her work and her care of friends and family in Australia. She has worked overseeing the welfare of residents, including personal/medical care, liaising with relatives, ensuring each resident’s care plan is implemented and documented in an aged care facility for over 16 years. She gives back to her local community by volunteering her time and effort to care for elderly people. She is an active member of her church community. She is a well-respected mother, wife, and friend.[281]
  16. The Applicant submits that her interactions with the Department in relation to her date of birth are not consistent with a lack of good moral character.[REDACTED] It is only one aspect of her identity and moral character. Even if this were to be one of the rare cases of a particular component of a person’s moral identity giving rising to a plausible character concern, it is submitted that this is significantly mitigated by the context in which this belief has arisen. Further, to give undue regard to this matter, and not to have regard to this belief in the overall context of the Applicant’s character and moral values, as demonstrated by her contributions to the Australian community and standing within it, is not the preferable appraisal of her character, particularly in the context of the Citizenship Act.[282]
  17. The consequence of a decision not to approve the Applicant’s citizenship application is that she will forever be trapped as a person not entitled to Australian citizenship. Based on the existing information and documentation, there is nothing she can do, or could ever do, to overcome the Respondent’s position that it makes her of bad character.[283]

Respondent

  1. The only issue is whether the Tribunal is satisfied that the Applicant is of good character. However, as the Departmental records show the Applicant’s year of birth as 1954, the relevant statutory provision is not s 21(2) but rather s 21(4) which makes separate express provision dealing with the eligibility for citizenship of, among others, persons aged 60 or over. The specific character requirement is then s 21(4)(f) which is in terms identical to s 21(2)(h).[284]
  2. The Respondent contends that on the material before the Tribunal, the Tribunal will be unable to form an affirmative belief that the Applicant is of good character. This is because there is nothing in evidence that would enable it to make findings of fact about the Applicant’s conduct contrary to those that have been made by two previous merits review bodies: the MRT in 2007 and the Tribunal in 2019. These Tribunals both found, after hearing evidence from the Applicant, that she had intentionally provided false identifying information for the purpose of obtaining a (prospective spouse/spouse) visa in circumstances where she had an adverse migration history in relation to having overstayed and worked unlawfully.
  3. The Respondent submits that the Tribunal will not accept that the Applicant has not lied ‘to obtain a migration advantage’.[285] The Applicant acquired or obtained a birth certificate showing her DOB 13 November 1966 in an irregular manner, the purpose of doing so was for obtaining new or different details to enable her to come to Australia in 2004, on a passport and with a visa for which different details were provided to those for her previous visit as a visitor in 1998. The purpose of this was to hide from the Australian authorities that she was the same person as the one who had been removed in 2002 as an unlawful non-citizen for overstaying her visitor visa and working contrary to the terms of that visa.[286]
  4. The Respondent contends that the issue of the Applicant’s character involves more than the provision of information about her date of birth. She has not provided any or any credible explanation for the repeated provision of other false information on her prospective spouse application in 2003 and the spouse visa application in 2004. This information includes the erroneous names of her parents, the misrepresentation of her children as her siblings and, the submission of the statement from her brother which was in fact a statement from her son in support of her prospective spouse visa application, and the omission of the details of a number of her siblings.[287] The Respondent contends that the Applicant also misrepresented or gave conflicting information in her visa applications in relation to her marital status, the dates of her previous visits to Australia, and the circumstances of her overstaying her visa from 1999-2002.[288] Further, the Applicant has not provided a clear explanation in relation to the documents which purport to be education records, but which according to the institutions which are said to have issued them, are bogus documents.[289]
  5. There is no evidence that the Applicant attempted to inform the Australian authorities that her date of birth is 1966 rather than 1954 at any time prior to her removal from Australia in January 2002, at which time she signed the Record of Interview which recorded the 1954 birth date. Whereas the Applicant contends that she attempted to correct some wrong information that had been provided in her prospective spouse visa in a letter to the Department dated March 2004, she relied on some of the same and additional false information in her spouse visa application lodged in June 2004.[290]
  6. The Respondent submits that it is not for the Tribunal to determine whether the Applicant has committed bigamy in the sense of being satisfied that the elements of the offence are established. Rather, the Tribunal’s task is to determine whether the Applicant is of good character. The status of the Applicant’s marriages is one aspect of that, as also is the multiple ways in which she represented her marital status.
  7. The Respondent submits that the appropriate finding from all the material is that the Applicant deliberately and knowingly misrepresented her circumstances.[291] The Applicant has not acknowledged that she gave false information, demonstrated remorse, nor provided recent references to show that she is of ‘good character’.[292]

CONSIDERATION AND REASONS

  1. Section 24(1A) of the Citizenship Act states that the Minister must not approve the person becoming an Australian citizen unless the person meets the eligibility requirements to become an Australian citizen set out under s 21(2) of the Act. The only criterion in issue in this application is s 21(2)(h) or, if the Applicant is indeed aged over 60 years, s21(4)(f) of the Citizenship Act, which requires that the Respondent is satisfied that the Applicant is of ‘good character’ at the time of his decision on the application.

Time for Tribunal’s consideration of whether Applicant is of ‘good character’

  1. The Reviewable Decision is the refusal by the Respondent to approve the Applicant’s citizenship application for reason that he was not satisfied that she is of ‘good character’. The role of the Tribunal on merits review is to make a determination as to whether it is satisfied that the Applicant is of ‘good character’. This determination is to be made by reference to the material before it at the time it makes its decision: Shi v Migration Agents Registration Authority,[293] (‘Shi’) and Frugtniet v Australian Securities and Investments Commission.[294] In Shi, the High Court held that generally the Tribunal may take into account facts and circumstances both at the time of the primary decision and at the time of review.[295]
  2. This issue was recently considered by the Federal Court in the specific context of the Tribunal’s consideration as to whether a person is of ‘good character’ for the purposes of the Citizenship Act: VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘VFWQ’).[296] Banks-Smith J set aside the Tribunal’s decision for reason that it had erroneously referred to the need to consider the Applicant’s character either at the time of his application,[297] or at the time of the delegate’s decision.[298] After referring to Shi, His Honour held[299] that the Tribunal ‘is to consider whether it is satisfied of the good character of the applicant as at the time of its decision and having regard to relevant evidence available to it at that time’.[300]
  3. Following the principles outlined in these authorities, the Tribunal makes its assessment of whether it is satisfied that the Applicant is a person of good character at the time of its decision having regard to the material available to it at this time.

The Tribunal’s state of satisfaction

  1. The term ‘satisfied’ in s 21(2)(h)) and s 21(4)(f) of the Citizenship Act has been held to require that the Tribunal reach an affirmative belief that the Applicant is of good character. In BOY19 v Minister for Immigration and Border Protection (‘BOY19’) [301] the Federal Court set aside the Tribunal’s decision where, despite expressly rejecting the application of the principle in Briginshaw v Briginshaw[302] to the test of satisfaction under s 24 of the Act, it had determined that it could not be ‘comfortably satisfied’ of a number of matters that went to its ultimate finding that the applicant was not of good character at the time of its decision.[303] O’Bryan J explained why the word ‘satisfied’ in this context is ‘not amenable to the application of an evidentiary burden of proof’.[304] First, it is ‘an administrative decision to which the rules of evidence are inapplicable.’ Secondly, the matter of which the Minister must be satisfied, the applicant’s good character, ‘is not a fact to be proved but an opinion requiring an evaluative judgment. A standard of proof, such as balance of probabilities, is incapable of application to such an opinion.’[305]
  2. His Honour continued:

‘The absence of an evidentiary burden of proof does not mean that there is an absence of a legal standard of satisfaction. In the context of s 21(2)(h) of the Act, satisfaction requires that the decision-maker reach an affirmative belief that the applicant is a person of good character. It is not sufficient for the decision-maker to believe that there is a chance that the applicant is a person of good character; equally it is not necessary for the decision-maker to have a high degree of confidence that the applicant is a person of good character.’[306]

  1. Accordingly, the Tribunal’s task is to reach an affirmative belief, as a matter of evaluative judgement, that the Applicant is of good character.

‘Good character’

  1. ‘Good character’ is not defined in the Citizenship Act.[307] In VFWQ, Banks-Smith J referred to the absence of a definition as an indication that:

‘...Parliament intended the term to be used in a broad way and [this] allows the decision-maker to consider a range of events and conduct connected with the applicant.’[308]

  1. The meaning of ‘good character’ was considered in BOY19.[309] O’Bryan J, after noting the absence from the Act of a definition of ‘good character’,[310] referred[311] to Irving v Minister of State for Immigration, Local Government and Ethnic Affairs (‘Irving’)[312] and Goldie v Minister for Immigration and Multicultural Affairs,[313] both of which were decisions made under the provisions of the Migration Act that permit refusal or cancellation of a visa if a person does not satisfy the ‘character test’.[314] Relying on these decisions, O’Bryan J identified a number of principles relevant to the term ‘good character’ as used in the Citizenship Act:

‘The following principles can be distilled from the authorities about the meaning of the expression “good character” in s 21(2)(h) of the Act. First, the term refers to the enduring moral qualities of a person and not to the good standing, fame or repute of that person in the community, although the latter may provide evidence of the former. ... Second, the expression does not have a fixed and precise content. Like other broad statutory standards, such as whether an entity is a fit and proper person to hold a statutory licence or whether a decision is in the public interest, the expression imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statutory provisions ... Third, and as a corollary of the second point, the expression requires a judgment as to whether any proved deficiencies in the moral qualities of a person are sufficient to deny the person citizenship.’[315]

  1. When considering the meaning of ‘good character’, O’Bryan J referred to the Preamble of the Citizenship Act:[316]

‘The subject matter, scope and purpose of the Act is informed by its Preamble which states:

The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.

The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:

(a) by pledging loyalty to Australia and its people; and

(b) by sharing their democratic beliefs; and

(c) by respecting their rights and liberties; and

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

The ideals of diversity, democracy and liberty, reflected in the Preamble to the Act, indicate that the expression “good character” is not to be informed or assessed by individual religious, political or social beliefs, but by moral qualities that are regarded as a necessary concomitant of Australian citizenship. Matters that bear upon a person’s good character for the purposes of the Act are matters relevant to the obligations of citizenship as expressly or impliedly reflected in the Act, including its Preamble.’

Relevance of Citizenship Policy

  1. In Plaintiff M64/2015 v Minister for Immigration and Border Protection (‘M64’),[317] French CJ, Bell, Keane and Gordon JJ explained the role of executive policy in administrative decision making:

‘Policy guidelines ... promote values of consistency and rationality in decision-making, and the principle that administrative decision-makers should treat like cases alike. In particular, policies or guidelines may help to promote consistency in “high volume decision-making”, such as the determination of applications for Subclass 202 visas. Thus in Re Drake v Minister for Immigration and Ethnic Affairs [No 2] [(1979) 2 ALD 634 at 642] Brennan J, as President of the Administrative Appeals Tribunal, said that “[n]ot only is it lawful for the Minister to form a guiding policy; its promulgation is desirable” because the adoption of a guiding policy serves, among other things, to assure the integrity of administrative decision-making by “diminishing the importance of individual predilection” and “the inconsistencies which might otherwise appear in a series of decisions”’. [318]

  1. The centrality of relevant policies was reiterated by the Full Court in the specific context of the policies that apply to citizenship by conferral in Minister for Home Affairs v G.[319] The Full Court allowed an appeal from a decision in which Mortimer J had found that part of the Australian Citizenship Instructions was invalid. In its reasons for decision, the Full Court[320] set out the passage from Plaintiff M64 (extracted above),[321] and stated that the ‘breadth of the discretion in s 24(1) [of the Citizenship Act] is not inimical to the adoption of an executive policy, even a detailed executive policy, to guide the exercise of the discretion’.[322] On the contrary, the adoption of such a policy ‘promotes values of consistency and rationality’ and the principle that like cases be treated alike, as articulated by the High Court in M64.[323]

Applicable policy – CPI 15

  1. CPI 15 provides guidance for decision-makers in assessing whether an applicant is of good character. It states:[324]

‘Good character refers to the enduring moral qualities of a person. A person who is of good character is likely to uphold and obey the laws of Australia and the other commitments made when making the Pledge of commitment should they be approved to become an Australian citizen.’

  1. It purports to provide a ‘framework’ for assessing an applicant under the ‘good character’ provisions. It states that decision-makers must:[325]
  2. CPI 15 refers to a number of authorities which provide guidance on the meaning of the term, including the following definition ‘good character’ referred to by Lee J in Irving:[326]

‘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 whilst 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.’[327]

  1. After citing the above passage from Irving, CPI 15 explains:[328]

‘The phrase ‘enduring moral qualities’ encompasses the following concepts:

The good character requirement necessitates consideration of an applicant viewed in a holistic way; that is, all aspects of his/her life may be relevant to consideration of character.

A decision-maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout the time the applicant held a visa, and during the time their citizenship application was lodged and processed.’

  1. CPI 15 also refers to the decision of Deputy President Breen in Fenn and Minister for Immigration and Multicultural Affairs (‘Fenn’):[329]
    ‘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 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.’
  2. CPI 15 further cites the decision of Forgie DP in Zheng and Minister for Immigration and Citizenship [330] who, after considering the text of the Preamble, stated:

‘In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do.’

  1. CPI 15 provides a non-exhaustive list of characteristics which would generally be exhibited by a person of good character.[331] It relevantly provides:

‘An applicant who is a person of good character would generally be expected to exhibit the following characteristics. Application of these principles should be considered in light of the facts of the particular case.

As a general proposition, a person who is of good character would:

intentionally providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications;...’

  1. It notes that these principles must be considered in relation to the particular circumstances of the applicant[332]:

‘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. The above examples are intended only to provide broad guidance to decision-makers about the types of behaviours which might support an adverse conclusion about a person’s character. Ultimately a decision-maker must exercise any statutory discretion bearing in mind the facts of any particular case.

It is also necessary to consider any other information that is relevant to a person’s character such as information provided by an applicant about his/her family life; for example, raising children, being in a stable home environment, being responsibly employed, paying taxes, any community work undertaken, and any other matter that is relevant to an assessment of character in the circumstances of a particular case. This would include expressions of genuine remorse for past wrong-doing and the time that has elapsed since the wrong-doing. 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.’

  1. In Nguyen and Minister for Immigration and Border Protection,[333] Senior Member Puplick emphasised the importance of applicants being truthful in the context of citizenship:

‘Citizenship of Australia is regarded as a special privilege when extended to those not automatically qualified. Earning it requires adherence not only to statutory requirements but also to the set of moral values and qualities related to honesty in dealings with the Government. These values and qualities are themselves a hallmark of good citizenship.

Citizenship cannot be awarded on the basis of false statements. There are no excuses for making false statements in this regard.

Equally, it is a hallmark of citizenship to take personal responsibility for one’s own actions and not cast them off onto the shoulders of others. Even persons who are not able to manage well in the English language can do this without resort to placing themselves in the hands of deceitful third parties.’

(Footnotes omitted)

  1. Further, in Fang and Minister for Immigration and Border Protection (‘Fang’)[334] Senior Member Puplick made the following comment about the need for an applicant to be truthful about their identity:
    ‘...those, who are not citizens and who are seeking to do so, must be absolutely truthful as to who they are and absolutely truthful about their identity. Truthfulness in the completion of government documents, such as passenger arrival cards, applications for visas or citizenship, licences or identity documents is an absolute requirement – applicable indeed, equally to citizens and non-citizens alike.’
  2. The paragraph of CPI 15 titled ‘Weighing up the evidence’ states:[335]

‘The question for decision-makers is whether or not the decision-maker is satisfied that the person is of good character at the time of decision on the citizenship application. This requires the decision-maker to weigh up all of the relevant evidence.

Decision-makers should consider the following matters:

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 time. The amount of time depends on the merits of each case, but in most cases will go back prior to any visa application if the person is applying for citizenship by conferral.’

Tribunal decisions involving the provision of false information

  1. The Tribunal has reviewed a number of recent Tribunal decisions which have considered the relevance of the provision of false information by applicants in making an assessment of whether they are of ‘good character’. These decisions provide guidance to the Tribunal in making the same assessment in relation to the Applicant.
  2. In Dramani and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) (‘Dramani’) [336] the applicant came to Australia in 2009 on a provisional partner visa. In the provisional partner visa application form, she stated that her mother was deceased. At this time the applicant genuinely believed that her mother was deceased, and it was not until approximately 2014 that the applicant learnt that her mother was still alive. In 2015 the applicant's mother applied for a refugee visa and the applicant made the application as a proposer. When the applicant applied for citizenship in 2017, she again stated that her mother was deceased, because she thought she would have a better chance of success if she stated her mother was deceased, as she had done on her successful partner visa application. The Tribunal found that the applicant was not of good character. It stated:[337]

‘It is important for Applicants to be truthful in their dealings with the Department and not to provide false information ... A person should show good moral qualities throughout the citizenship process ... This includes being honest when dealing with the Department and providing correct and accurate information to them. The Applicant included a statement that she knew to be untrue in her citizenship application because she believed that she would have a better chance of success if she stated that her mother was deceased. Unfortunately for the Applicant, this casts doubt on her character. Thus, the Tribunal cannot be satisfied that the Applicant is of good character for the purpose of s 21(2)(h) of the Act.

This finding does not, however, mean that the Applicant cannot redeem herself. She can make a future application for citizenship in the future but will need to provide an honest and fulsome explanation for making this misrepresentation to the Department.’

  1. In Nazari and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)[338] the applicant lied on a visa application stating he was unemployed in the period 2004-2008 and denied having higher education and trade qualifications. He also deliberately denied being married in forms submitted to the Department when he was departing Pakistan. The Applicant concluded that he was not a person of ‘good character’. The Tribunal observed:

‘...the Applicant deliberately denied being married in forms submitted to the Department when he was departing Pakistan. There was nothing about the circumstances which justified the telling of deliberate lies and concealing important facts from Government officials.[339]

...

When viewed as a whole the Applicant’s life story reveals a man who at key moments when it is in his interests to do so, is willing to say things and swear to things which are untrue, and who also fails to correct things that he knows are wrong. In light of this character trait I am satisfied that the Applicant is not of good character.’[340]

  1. The applicant had provided a number of references in support of his claim to be of good character. The Tribunal made the following comments in relation to their relevance to its assessment of the applicant’s character:

‘I have read those references and do not doubt that the Applicant has been a well behaved, courteous and industrious member of the Australian community since he arrived here. However, I am also satisfied that the Applicant has been deliberately dishonest with Australian officials over a number of years including in his evidence to this Tribunal. I do not doubt that the Applicant is a very nice person and his friends would like him to become a citizen, but I am also satisfied that his willingness to engage in deception, which continues to this day, means he is not of good character.’[341]

  1. In Ramazani and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship),[342] the applicant stated in his onshore protection visa application that his brother was deceased having been killed by the Taliban, and he relied on the death of his brother as a part of his protection claims. He was then notified by his parents that his brother was living in Australia and he commenced living with his brother in August 2011. At no time did the applicant advise the Department that his brother was alive nor that he had provide incorrect information in his protection visa application. He then knowingly provided false information in his citizenship application in 2015 asserting his brother was deceased. The applicant only admitted to the false declaration after the Department discovered that the applicant was living with the brother. The Tribunal found that the applicant was not of good character. It found that he had informed the Department that his brother had been killed by the Taliban on numerous occasions and for the purpose of securing his protection visa and to obtain citizenship.[343]
  2. In Hosseini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) (‘Hosseini’)[344] the applicant lied about his age at the time of arrival in Australia. He did this based on his experience of prior sexual abuse in his home country, and fears of sexual abuse in adult detention. His protection visa was granted on the grounds that he had been sexually abused and other circumstances. He subsequently provided bogus documents to perpetuate the initial lie. The Tribunal found that the applicant was not a person of good character. It stated that truthfulness in the completion of government documents, such as applications for citizenship, is to be treated as ‘an absolute requirement’[345] and it is the responsibility of an applicant for citizenship is to ‘ensure that information submitted by them, or on their behalf, is truthful.’[346]
  3. In Dawlatshahi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship),[347] the Applicant failed to declare his two deceased brothers and his surviving brother in any of his migration or citizenship matters prior to 25 July 2020 when he corrected the information. The Applicant also declared that his mother was deceased in his application for an offshore humanitarian visa and in citizenship related forms. The Tribunal found that the non-disclosures by the Applicant were ‘inadvertent, not intentional and understandable’ due to his young age at the time of the death of his brothers, ‘such as not to detract from an assessment of his character’. In addition, it noted that his mental health was not good, largely due to the fact that his wife and three young children remained in Afghanistan and he feared for their safety. The Applicant had acknowledged his mistakes and asked for forgiveness. The Tribunal concluded he was a person of good character. It observed:

‘It (was) apparent to the Tribunal that he is genuinely remorseful and clearly understands the distinction between right and wrong.[348]

...

The Tribunal is satisfied that the Applicant has been troubled by the incorrect information he has provided in the past for some years and that he now understands the importance of carefully checking the content of all documents that he signs to ensure that he understands the content of such documents and that such content is true and correct.’[349]

  1. The Tribunal referred to the ‘substantial and persuasive character evidence’ that was provided in favour of the Applicant and found that it ‘underscores the way the Applicant has developed as a prospective Australian citizen over the last few years.’[350]
  2. Following the relevant authorities and having regard to these Tribunal decisions and the guidance in CPI 15, the Tribunal will now consider whether it is able to reach an affirmative belief that, as a matter of evaluative judgement, the Applicant is of ‘good character’.

Findings in relation to information provided by the Applicant

  1. The Tribunal has considered the evidence before it and makes the following findings in relation to information provided by the Applicant to the Department in successive visa applications.

Date of birth

  1. The Tribunal notes the Applicant concedes that the balance of the documentary evidence, including government and educational records, does not support her claim that her correct date of birth is 13 November 1966.[351] The NSO record of the birth of [REDACTED] on 13 November 1966 was a ‘late registration’ facilitated by the Applicant in August 2005. The evidence before the Tribunal contained in the Identity Assessment Report is that the process of ‘late registration’ of a birth involves no check of the information provided by the person seeking to register the birth, therefore creating the possibility that the record is inaccurate.[352] The timely registration[353] of the birth of JGE2 to the Applicant’s mother just ten days after the birth of the Applicant in November 1966 makes it impossible that the Applicant’s claimed November 1966 date of birth is accurate. The records of Lipa City College which record that the Applicant graduated with a Bachelor of Science in Elementary Education on 16 April 1974 is further confirmation that the Applicant’s claimed birth date in November 1966 is highly improbable, as she would have been just eight years old when she graduated. On the basis of the evidence before it, the Tribunal finds that the Applicant was born on 13 November 1954. This finding is consistent with that of the MRT in its 2007 decision[354] and the Tribunal’s 2019 decision.[355]
  2. [REDACTED] The Tribunal accepts that the Applicant has a genuine and strongly held belief that she was born in November 1966. It also accepts that she believes that the NSO record of her birth in November 1954 was an amendment to the original birth certificate facilitated by her father sometime in 1979 so she could legally marry [REDACTED]. The Tribunal further accepts the Applicant’s evidence that because of her genuine belief about her date of birth, that she also honestly believes that she was never legally married [REDACTED] for reason that she was underage when they wed in 1979 and 1981.
  3. Had the Applicant only unknowingly misrepresented her date of birth in her various interactions with the Department, the Tribunal could not reasonably find that she had ‘displayed a continual pattern of providing the Department with a range of bogus, misleading and / or false information’ supporting a finding that she is not of ‘good character.’ The Tribunal considers that what is relevant to an assessment of the Applicant’s character is not whether she failed to tell the truth to the Department due to a mistaken but genuinely held belief, but whether she knowingly provided false information or information she believed to be false so as to obtain a benefit or advantage, specifically a favourable migration outcome, to which she was otherwise not entitled, or which increased the likelihood of her obtaining the same. This approach is consistent with CPI 15 that states that it is ‘material deception during visa and citizenship applications’ that raises a character concern.[356]
  4. The Tribunal has therefore assessed in the paragraphs which follow whether the Applicant knowingly provided false information or information she believed to be false in her various visa applications, other than in relation to her date of birth about which she had a mistaken but genuine belief, in order to obtain a migration advantage.

Family members
Parents

  1. In her prospective spouse visa application, the Applicant stated that her parents’ names were AB and TE.[357] In her spouse visa application she wrote that her parents’ name were RAB and TAGE. The Applicant’s evidence to the Tribunal is that she does not know the exact names of her parents. She says that for this reason she provided her parents’ ‘nicknames’ as their Christian names.[358] The Tribunal accepts that the Applicant may not have known the correct names of her parents, and it is for this reason that she provided the names by which they were commonly called. However, in both applications she provided the surname ‘Barreda’ for her father, which she agreed in her oral evidence is not her father’s surname but that of her rapist and the man she married in 1979.[359] The Applicant therefore knowingly gave a false surname for her father in her both spouse visa application. The use of this surname, which matched her own given name of [REDACTED], is consistent with her statement that she had not previously been married[360] (see below) which would make [REDACTED] her maiden name. The Tribunal finds that the provision by the Applicant of a false surname for her father was intended falsely represent that she was at the time of her application an unmarried woman, which may have strengthened her application for a prospective spouse visa.

Children and siblings

  1. In her prospective visa application form, the Applicant stated that her ‘siblings’ were EAEB, EMEB and JIGE. She therefore falsely represented that her children EAEB and EMEB were her siblings, and declared she had no children. She claims she ‘was not thinking clearly’ and made ‘a mistake of putting everything in one box’.[361] She said did not read the questions properly and she was thinking she was her declaring ‘dependents’, who were at that time her children and her brother.[362] The Applicant claims that [REDACTED]. As EMEB and EAEB were born in 1979 and 1982 and her brother JIGE was born in 1977, it is plausible that they considered each other as siblings. It is less plausible that the Applicant’s children considered her as their sibling as she was, on her account, 12 years older than her son and 15 years older than her daughter. The Tribunal also notes that EAEB and EMEB have the same surname as their father, and the surname provided by the Applicant for her father [REDACTED]. The provision of these names is consistent with her representation that she was an unmarried woman with no children at the time of her application, and she and her ‘siblings’ shared the same surname as the ‘father’ they had in common.
  2. The Tribunal is willing to accept that the Applicant listed her children as her ‘siblings’ because they grew up believing that she was their sister. It makes this finding having regard to the evidence of Dr Deinla in relation to the custom of the Philippines of naming of family members otherwise in accordance with their familial relationship to each other, and because the Applicant subsequently sought to correct the ‘mistake’ she made in listing her children as her siblings. In making this finding, the Tribunal has not however discounted the fact that the listing by the Applicant of her children as her siblings provided support for her claim that she was unmarried at the time of her prospective spouse visa application and that [REDACTED] was her maiden name.
  3. The Applicant’s evidence is that her only brother is JIGE born in November 1977. She claims to have no knowledge of the three other children who are recorded in NSO records as being born to the Applicant’s parents in September 1956, May 1964 and November 1966. The Tribunal accepts that it is possible that the children born in 1956 and 1964 died or were adopted to another family, and this is why she knows nothing about them. Accordingly, the Tribunal finds that the Applicant’s failure to list these other siblings in her prospective spouse and spouse visa application forms was not deliberately false and misleading.

Marital status
Tourist visa

  1. The Applicant’s evidence to the Tribunal is that in her tourist visa application in 1998 she answered that she was ‘married’ and said this is ‘because it was a tourist visa.’[363] Whereas the Applicant was still married to her rapist in 1998, her evidence is that she had escaped his abuse by early 1984. Therefore, although they were not divorced, they were on her account separated, albeit not legally. Therefore, the Applicant’s statement that she was ‘married’ when she applied for a tourist visa was inconsistent with her genuinely held belief that she was never legally married to her rapist as she was underage when they were married in 1979 and 1981. It also is inconsistent with her evidence that she was separated from her rapist by 1984.
  2. The Applicant admits that she stated she was ‘married’ because of the type of visa for which she was applying, namely a tourist visa, which she is aware requires an assessment as to whether the applicant will return home at the expiry of the duration of the visa. Evidence that supports such a finding includes whether the visa applicant has family ties, such as a husband and children, to whom they are likely to return. Therefore, the Applicant was aware that her statements in her tourist visa application that she was married with two children would have increased the likelihood of the visa being granted. On the basis of this evidence, the Tribunal finds that the Applicant’s statement in her tourist visa application that she was ‘married’ was false according to her understanding that she was not legally married, and it was made for the purpose of increasing the likelihood that she would be granted a tourist visa.

Prospective spouse visa

  1. In her application for a prospective spouse visa, the Applicant stated that she had not been married or in a de facto relationship. She told the Tribunal she wrote this because she believed she had never been legally married.[364] Her statement in the visa application that she had not been married is therefore consistent with her genuinely held, but mistaken, belief in relation to her marital status. However, it is inconsistent with her claim she was ‘married’ when she applied for a tourist visa five years prior to her prospective spouse visa application. It is also inconsistent with the information she provided to the Department that she was ‘separated’ when she was detained following the overstay of her tourist visa in January 2002 (see below). As the MRT observed in its decision the ‘Applicant ... changed her story to suit her circumstances’.
  2. Based on the evidence before it, the Tribunal finds that the Applicant demonstrated a willingness to provide different information to the Department in relation to her marital status depending on her circumstances, including the type of visa for which she was applying. It further finds that she did so with the intention of securing a favourable migration outcome which might not have been achieved if she had provided a different answer in relation to her marital status.

Overstay of tourist visa

  1. The evidence before the Tribunal is that the Applicant’s tourist visa expired in September 1999, following which she remained in Australia as an unlawful non-citizen until she was detained and removed in January 2002. During the more than two years from September 1999 to January 2002 the Applicant claims she was waiting for the outcome of an application she believes was made for a business sponsorship visa in late 1998. She claims that she made a number of inquiries about the progress of her visa application with the director of the company who had agreed to sponsor her, and he told her to wait.
  2. The Tribunal does not accept that the Applicant was unaware that she was an unlawful non-citizen from the expiry of her tourist visa in September 1999 until she was removed in January 2002. As the MRT found, the Applicant had entered and re-entered Australia a number of times and had renewed her tourist visa with the Department during the period of her stay in Australia from July 1998 and October 1999. She was therefore ‘savvy’ with immigration processes, including the process for the renewal of a visa,[365] and she had experience in making necessary inquiries with the Department and taking steps to ensure she remained lawful during her stay in Australia. The Tribunal therefore finds it implausible that the Applicant would allow more than two years to pass without making inquiries with the Department about the progress of her visa application and whether she remained lawful. The Tribunal agrees with the finding of the MRT that the Applicant’s lack of vigilance in following up the business visa application with the Department was ‘highly unlikely’.[366] Accordingly, the Tribunal finds the Applicant knowingly overstayed her tourist visa and was aware that she was unlawfully in Australia for a period of more than two years.
  3. In her prospective visa application, the Applicant wrote that she had previously visited Australia from July 1998 to January 2002. She acknowledged that she had overstayed her tourist visa but had left voluntarily. The reason she gave for overstaying were the ‘unexpected death of mother and involvement in funeral arrangements at the time of visa renewal.’[367] The Applicant acknowledged during her oral evidence that her mother died in April 1999, and she briefly returned to the Philippines for the funeral. This does not coincide with the expiry of her tourist visa in September 1999. Accordingly, the Applicant made a statement in her visa application which she knew to be false.
  4. In her spouse visa application, the Applicant falsely stated that she had previously visited Australia arriving in July 1998 and departing in April 1999 (approximately). In her oral evidence she acknowledged that this is incorrect and she in fact departed Australia in January 2002. In answer to questions in the visa application about whether she had ever been removed or deported from Australia or whether she had ever left any country to avoid being removed or deported, the Applicant answered ‘no’.[368] She told the Tribunal that she gave these responses because she was on a ‘supervised departure’ and she left Australia ‘voluntarily’ in January 2002.
  5. While the Tribunal accepts that the Applicant genuinely but mistakenly believes that she left Australia ‘voluntarily’ in January 2002, it finds that she knowingly misrepresented in her prospective spouse visa application and in her evidence to the Tribunal the reasons why she was unlawful in Australia from September 1999 to January 2002. The Tribunal finds that she fabricated a story in relation to waiting for the outcome of a business visa application to explain her overstay for a period of more than two years in the belief it would increase the likelihood of her being granted a spouse visa.

Letter from ‘brother’

  1. In support of her prospective spouse visa application, the Applicant provided a signed statement made by her ‘brother’ EAEB dated 20 December 2002 documenting the genuine nature of her relationship with Mr G.[369] She told the Tribunal that her son EAEB signed the letter as her ‘brother’ because he believed that to be true due to the ‘closeness’ of their ages.[370] The Tribunal accepts that the EAEB believed when he was growing up that the Applicant was his sister. However, at the date of the letter he wrote in support of his ‘sister’ EAEB was aged 18 years. In its 2019 decision the Tribunal referred to the evidence of EAEB provided by him in a written statement, that he learned that the Applicant was his mother when he was 16 years old. The Tribunal accordingly found that the Applicant ‘knowingly provided false information in support of a visa application and made her son complicit in this activity by getting him to provide a statement on her behalf which he knew to be untrue.”[371]
  2. Based on the evidence before it, the Tribunal makes the same finding that the Applicant knowingly provided with her visa application a letter of support from her son who she falsely represented to be her brother. This was at a time when EAEB was aware that he was not the Applicant’s brother but her son, and the Applicant provided this letter to strengthen her application for a prospective spouse visa.
  3. To summarise, the Tribunal is satisfied that the Applicant provided to the Department in each of her three visa applications, false information, or information she believed to be false, with the purpose of achieving a favourable migration outcome, or to increase the likelihood of such an outcome.
  4. The question for the Tribunal is whether the provision to the Department of false information or information she believed to be false in successive visa applications supports a finding that the Applicant is not a person of ‘good character’.

Is the Applicant a person of ‘good character’?

  1. The Tribunal is satisfied that the evidence before it demonstrates that the Applicant, over the period from 1998 to 2004, provided to the Department false information, or information she believed to be false, with the purpose of achieving a favourable migration outcome, or to increase the likelihood of such an outcome. It further finds that the Applicant has consistently maintained that this information is true, and that she falsely represented these matters in her interactions with the Department to obtain a migration advantage.
  2. Based on the information before it, the Tribunal is satisfied that the Applicant has displayed a continual pattern of providing to the Department and the Tribunal a range of misleading and/or false information in relation to her marital status, family composition (parents, children and siblings) and the circumstances that led to her becoming an unlawful non-citizen resulting in her being removed from Australia in January 2002. It finds that she provided this false information so as to present her personal circumstances in a manner that she believed would entitle her to the grant of a visa to allow her to enter and remain in Australia. The Tribunal agrees with the observation of the MRT that the evidence indicates that the Applicant had been ‘loose with the truth to assist the prospective outcome of her various visa applications’. It further concurs with the observation of the Tribunal in its 2019 decision that ‘the Applicant has a record of deceitful dealing with the Australian government.’
  3. As has been explained above, the Tribunal has accepted that the Applicant has a genuine belief that she was born in November 1966 and that her marriage [REDACTED] in 1979 was not legal for reason that she was underage. It has also considered the information provided by the Applicant to the Department in her various visa applications in the context of her lived experience and accepts her claim that she and her children grew up believing they were siblings due to the closeness of their ages. However, for the reasons stated above, the Applicant knowingly provided false information, or information she believed to be false, to the Department on numerous occasions with the intention of presenting her circumstances in a favourable light so that she would be found eligible for the grant of the visa for which she was applying.
  4. Having regard to the relevant authorities and CPI 15, the Tribunal finds that a person of good character would not engage in deception in their dealings with the Department by intentionally providing false personal information when making visa applications. As this accurately describes the behaviour of the Applicant in her interactions with the Department, the Tribunal cannot be satisfied that she is a person of good character. In making this finding it has adopted the approach of the Tribunal in its earlier decisions in Fang and Hosseini that truthfulness in the completion of government documents, including visa applications is an ‘absolute requirement’ in the context of the assessment of character.
  5. Consistently with CPI 15, the Tribunal recognises that it should have regard to any other information relevant to the Applicant’s character such as information provided by her about life circumstances for example, raising children, being in a stable home environment, being responsibly employed, paying taxes, any community work undertaken, and any other matter that is relevant to an assessment of character in the circumstances of a particular case. The Tribunal recognises that the good character requirement necessitates consideration of the Applicant viewed in a holistic way, and that all aspects of her life may be relevant to the consideration of her character.
  6. The evidence before the Tribunal is that the Applicant has worked in aged care for a period of some 17 years and has been continuously employed at the same aged care facility. She has raised two children, who joined her in Australia as dependents following the grant to her of a spouse visa. In addition, she provided care to her mother-in-law when she was unwell, and regularly gives assistance to her neighbours and work colleagues. She has been in a stable relationship with her husband since they were married in 2004 and is an active member of her church community. The Applicant has no criminal convictions and has not been charged with any offences or indeed been fined for traffic or parking infringements. The Tribunal is satisfied that the Applicant obeys the law, respects and helps others and works hard. It makes these findings despite there being no recent character or employment references before the Tribunal which attest to the Applicant having these personal characteristics.
  7. Having regard to the evidence before it, the Tribunal finds that despite the Applicant being a kind, considerate, law-abiding and hard-working person, she has not demonstrated the enduring moral qualities of a person of good character. She has not demonstrated that she is genuinely remorseful for the misrepresentations she made and the false information she provided to the Department in successive visa applications. Nor does she appear to appreciate that providing the version of information to government authorities that is most helpful to securing a positive outcome for herself is dishonest and unacceptable behaviour. It is not apparent to the Tribunal that the Applicant fully appreciates the importance of providing accurate information to the authorities and taking steps to ensure that it is true and correct. Nor is it evident that she understands that it is better to be honest and apologise for being untruthful in the past and to take responsibility for earlier deceitful behaviour, than to refuse to resile from previous untruths and thereby continue to preserve the web of deception that she wove over the course of many years.
  8. For these reasons, the Tribunal is unable to form an affirmative belief that the Applicant is a person of ‘good character.’
  9. As the Tribunal observed in Dramani, the Tribunal’s finding does not mean that the Applicant will forever be excluded from being granted the privilege of Australian citizenship. She can make an application for citizenship at any time in the future and provide an honest and fulsome explanation for knowingly providing false information, or information she believed to be false, to the Department in her various visa applications. If she chooses to take this course of action, her application will be assessed on its merits, including an assessment of whether she has demonstrated herself to be a person of good character.

DECISION

  1. The Reviewable Decision is affirmed.
I certify that the preceding 219 (two hundred and nineteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

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

Dated: 22 February 2022

Date of hearing:
12, 13 and 23 July 2021
Advocate for the Applicant:
Professor K Rubenstein
Counsel for the Respondent:

Solicitors for the Respondent:
Emeritus Professor R Graycar

Mr J Papalia, AGS

[1] Exhibit R1 T2, 7 - 19.

[2] Exhibit R1 T11, 169 - 183.

[3] Exhibit R1 T1, 1 -6.
[4] s 50(1).

[5] Exhibit R1 T6, 88 – 97.
[6] Exhibit R1 T6, 90.
[7] Noting that the Respondent filed copies of CPI 15, as at 17 April 2019, which is no longer the applicable version of CPI 15: T8, 108 - 130.

[8] CPI 15 para [14.2].
[9] CPI 15 para [14.2]

[10] Exhibit R1 T11, 175.

[11] Transcript dated 12 July 2021, 19.

[12] Exhibit R1 T14, 218.

[13] Transcript dated 12 July 2021, 19.

[14] Transcript dated 12 July 2021, 19.

[15] Transcript dated 12 July 2021, 20.

[16] Transcript dated 12 July 2021, 21.

[17] Transcript dated 12 July 2021, 21.

[18] Transcript dated 12 July 2021, 21-22.

[19] Transcript dated 12 July 2021, 21.

[20] Transcript dated 12 July 2021, 22.

[21] Exhibit R1 T69, 484.

[22] Transcript dated 12 July 2021, 18.

[23] Exhibit R1 T14, 216.

[24] Exhibit R1 T14, 216.

[25] Transcript dated 12 July 2021, 18.

[26] Exhibit R1 T69, 484; T90, 594.

[27] Transcript dated 12 July 2021, 22.

[28] Transcript dated 12 July 2021, 22.

[29] Exhibit R1 T21, 241; T22, 250; T25, 253.

[30] Transcript dated 12 July 2021, 30.

[31] Transcript dated 12 July 2021, 31.

[32] Transcript dated 12 July 2021, 31.

[33] Transcript dated 12 July 2021, 15.

[34] Transcript dated 12 July 2021, 16.

[35] Transcript dated 12 July 2021, 16.

[36] Transcript dated 12 July 2021, 42.

[37] Exhibit R1 T21, 241.

[38] Exhibit R1 T21, 241; T22, 244-250.

[39] Exhibit R1 T157, 996; Transcript dated 12 July 2021, 24.

[40] Transcript dated 12 July 2021, 22 – 23.

[41] Transcript dated 12 July 2021, 23; Exhibit R1 T157, 997; T106, 721.

[42] Transcript dated 12 July 2021, 50.

[43] Transcript dated 12 July 2021, 23.

[44] Transcript dated 12 July 2021, 23.

[45] Exhibit R1 T157, 997.

[46] Exhibit R1 T157, 997.

[47] Exhibit R1 T157, 997.

[48] Exhibit R1 T157, 997.

[49] Exhibit R1 T26, 255.

[50] Exhibit R1 T26-T38.

[51] Transcript dated 12 July 2021, 31.

[52] Transcript dated 12 July 2021, 32.

[53] Transcript dated 12 July 2021, 32.

[54] Transcript dated 12 July 2021, 23.

[55] Transcript dated 12 July 2021, 23.

[56] Transcript dated 12 July 2021, 23.

[57] Transcript dated 12 July 2021, 43.

[58] Exhibit R1 T27, 260; T157, 997.

[59] Transcript dated 12 July 2021, 36.

[60] Exhibit R1 T157, 997.

[61] Exhibit R1 T27, 257.

[62] Transcript dated 12 July 2021, 38-39.

[63] Transcript, 39.

[64] Exhibit R1 T27, 259; Transcript dated 12 July 2021, 25.

[65] Transcript dated 12 July 2021, 35-36.

[66] Exhibit R1 T27, 261.

[67] Transcript dated 12 July 2021, 51.

[68] Exhibit R1 T40, 282 – 292.

[69] Transcript dated 12 July 2021, 10.

[70] Transcript dated 12 July 2021, 26.

[71] Exhibit R1 T9, 143; T100, 656.

[72] Exhibit R1 T40, 284.

[73] Exhibit R1 T40, 285.

[74] Transcript dated 12 July 2021, 54.

[75] Transcript dated 12 July 2021, 19.

[76] Transcript dated 12 July 2021, 55.

[77] Transcript dated 12 July 2021, 54, 59.

[78] Exhibit R1 T69, 500-501.

[79] Transcript dated 12 July 2021, 43.

[80] Transcript dated 12 July 2021, 52.

[81] Transcript dated 12 July 2021, 53.

[82] Exhibit R1 T40, 290.

[83] Exhibit R1 T40, 290.

[84] Transcript dated 12 July 2021, 23.

[85] Transcript dated 12 July 2021, 45.

[86] Transcript dated 12 July 2021, 26.

[87] Transcript dated 12 July 2021, 74.

[88] Exhibit R1 T40, 315.

[89] Transcript dated 12 July 2021, 58.

[90] Transcript dated 12 July 2021, 58.

[91] Transcript dated 12 July 2021, 58.

[92] Exhibit R1 T40, 317-318.

[93] Exhibit R1 T175, 1097.

[94] Exhibit R1 T14, 213.

[95] Transcript dated 12 July 2021, 59.

[96] Transcript dated 12 July 2021, 59.

[97] Transcript dated 12 July 2021, 60.

[98] Transcript dated 12 July 2021, 59, 60.

[99] Exhibit R1 T40, 325.

[100] Transcript dated 12 July 2021, 63.

[101] Transcript dated 12 July 2021, 63.

[102] Transcript dated 12 July 2021, 63.

[103] Transcript dated 12 July 2021, 63.

[104] Exhibit R1 T40, 326.

[105] Exhibit R1 T40, 327.

[106] Exhibit R1 T40, 333.

[107] Exhibit R1 T22, 242.

[108] Exhibit R1 T21, 240.

[109] Transcript dated 12 July 2021, 11.

[110] Transcript dated 12 July 2021, 11.

[111] Transcript dated 12 July 2021, 13.

[112] Transcript dated 13 July 2021, 64.

[113] Transcript dated 13 July 2021, 65; Exhibit R1 T46, 384-385.

[114] Transcript dated 13 July 2021, 65.

[115] Transcript dated 13 July 2021, 66.

[116] Transcript dated 12 July 2021, 11; Exhibit R1 T9, 165-167.

[117] Transcript dated 12 July 2021, 12.

[118] Transcript dated 12 July 2021, 11.

[119] Transcript dated 12 July 2021, 11.

[120] Transcript dated 12 July 2021, 13,

[121] Exhibit R1 T46.

[122] Exhibit R1 T46, 360.

[123] cf Exhibit R1 T40, 284.

[124] Exhibit R1 T46, 360.

[125] Transcript dated 13 July 2021, 43.

[126] Exhibit R1 T14, 218; T175, 1099.

[127] Transcript dated 13 July 2021, 45.

[128] Transcript dated 13 July 2021,45.

[129] Exhibit R1 T46, 357.

[130] Transcript dated 13 July 2021, 41.

[131] Exhibit R1 T46, 365.

[132] Transcript dated 13 July 2021, 48-49.

[133] Exhibit R1 T46, 358.

[134] Transcript dated 13 July 2021, 46.

[135] Transcript dated 13 July 2021, 48.

[136] Transcript dated 13 July 2021, 47.

[137] Transcript dated 13 July 2021, 47.

[138] Transcript dated 13 July 2021, 77.

[139] Transcript dated 13 July 2021, 91.

[140] Transcript dated 13 July 2021, 92.

[141] Exhibit R1 T100, 646; Transcript dated 13 July 2021, 51-52.

[142] Exhibit R1 T48, 426- 427.

[143] See Exhibit R1 T14, 204 at para [22].

[144] See Exhibit R1 T50; T53.

[145] Exhibit R1 T54, 440.

[146] Exhibit R1 T55, 441; T56, 442.

[147] Exhibit R1 T61, 450.

[148] Exhibit R1 T62, 451.

[149] Exhibit R1 T65, 464 – 465; T66, 466; T139.

[150] Exhibit R1 T69, 502; Transcript dated 13 July 2021, 99.

[151] Exhibit R1 T65, 464 – 465.

[152] Letter from George Masri to DIAC dated 12 August 2008.

[153] Exhibit R1 T63.

[154] Exhibit R1 T65; T66.

[155] Exhibit R1 T67-69.

[156] Exhibit R1 T69, 475.

[157] Exhibit R1 T87.

[158] Exhibit R1 T101.

[159] Exhibit R1 T106.

[160] Exhibit R1 T110.

[161] Exhibit R1 T119.

[162] Exhibit R1 T121.

[163] Exhibit R1 T125.

[164] Exhibit R1 T126.

[165] [Redacted]

[166] Exhibit R1 T128, 844.

[167] Exhibit R1 T40, 317.

[168] Exhibit R1 T132, 849.

[169] Exhibit R1 T14, 213.

[170] Exhibit R1 T133.

[171] Exhibit R1 T139, T143, T149, T150 and T151.

[172] Exhibit R1 T140, 865-878.

[173] Exhibit R1 T141, 879.

[174] Exhibit R1 T145/888.

[175] [Redacted]

[176] Exhibit R1 T152, 939.

[177] [Redacted]; Exhibit R1 T154, 959.
[178] [Redacted]

[179] [Redacted]

[180] [Redacted]; See also T162.

[181] [Redacted].

[182] [Redacted]

[183] Exhibit R1 T169-T174.

[184] Exhibit R1 T175 – T176,1091-1107.

[185] Exhibit R1 T175, 1098.

[186] Exhibit R1 T175, 1099.

[187] Exhibit R1 T175, 1099.

[188] Exhibit R1 T175, 1099.

[189] Exhibit R1 T175, 1101.

[190] Exhibit R1 T177, 1108 -1109.

[191] Exhibit R1 T179, 1113.

[192] Exhibit R1 T180.

[193] Exhibit R1 T184,1174-1190.

[194] [Redacted]; T9(a).

[195] Exhibit R1 T11.

[196] Exhibit R1 T14.

[197] Exhibit R1 T16.

[198] Exhibit R1 T19 and T20.

[199] Exhibit R1 T1, 1-6.

[200] Exhibit A2.

[201] Exhibit A2, para 2.

[202] Transcript dated 12 July 2021, 67.

[203] Transcript dated 12 July 2021, 67.

[204] Transcript dated 12 July 2021, 69.

[205] Transcript dated 12 July 2021, 69 – 70.

[206] Transcript dated 12 July 2021, 67.

[207] Transcript dated 12 July 2021, 67.

[208] Transcript dated 12 July 2021, 71.

[209] Transcript dated 12 July 2021, 71.

[210] Transcript dated 12 July 2021, 67.

[211] Transcript dated 12 July 2021, 73.

[212] Transcript dated 12 July 2021, 73.

[213] Transcript dated 12 July 2021, 73.

[214] Transcript dated 12 July 2021, 73.

[215] Transcript dated 12 July 2021, 74.

[216] Transcript dated 12 July 2021, 74.

[217] Transcript dated 12 July 2021, 68.

[218] Exhibit R1 T106, 726.

[219] Exhibit R1 T106, 726.

[220] Exhibit R1 T106, 727.

[221] Exhibit R1 T106, 721.

[222] Exhibit R1 T106, 729.

[223] Exhibit R1 T106, 730.

[224] Exhibit R1 T106, 728.

[225] Exhibit R1 T106, 727.

[226] Exhibit R1 T106, 727.

[227] Exhibit R1 T106, 725.

[228] Exhibit R1 T106, 721.

[229] Exhibit R1 T106, 730.

[230] Exhibit R1 T106, 728.

[231] Exhibit R1 T106, 728.

[232] Exhibit R1 T106, 728.

[233] Exhibit R1 T106, 728.

[234] Exhibit R1 T106, 730.

[235] Exhibit R1 T175.

[236] Exhibit R1 T9, 144 – 145 at para [29].

[237] Exhibit R1 T9, 146 at para [31]-[34].

[238] Exhibit R1 T9, 147at para [38]-[39].

[239] Exhibit R1 T9,155 at para [70].

[240] Exhibit R1 T9, 155 at para [71].

[241] Exhibit R1 T9, 147 at para [40].

[242] Exhibit R1 T9/, 153-154 at para [65].

[243] Exhibit R1 T9, 154 at para [66].

[244] Exhibit R1 T9,154-155 at para [68].

[245] Exhibit R1 T9, 158 at para [85]-[86].

[246] Exhibit R1 T9, 158, at para [88].

[247] Exhibit R1 T9, 158 at para [89].

[248] Exhibit R1 T173 and T9, 159 at para [90]-[91].

[249] Exhibit R1 T9,159 at para [95].

[250] Exhibit R1 T9,159 at para [96].

[251] Applicant’s SFIC at para [42].

[252] [2004] FCA 774 at [49] (Lee J); approved on appeal by the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Godley (2005) 141 FCR 552; [2005] FCAFC 10; at [34].

[253] [1994] AATA 326.

[254] Applicant’s SFIC at para [43].

[255] Applicant’s SFIC at para [43].

[256] Applicant’s SFIC at para [43].

[257] Applicant’s SFIC at para [51].

[258] Applicant’s SFIC at para [51].

[259] Applicant’s SFIC at para [52].

[260] Applicant’s SFIC at para [53].

[261] Applicant’s SFIC at para [54].

[262] Applicant’s SFIC at para [54].

[263] Transcript dated 23 July 2021, 30.

[264] Applicant’s SFIC at para [55].

[265] Applicant’s SFIC at para [58].

[266] Applicant’s SFIC at para [67].

[267] Transcript dated 12 July 2021, 31.

[268] Applicant’s SFIC at para [64].

[269] Applicant’s SFIC at para [65].

[270] Applicant’s SFIC at para [66].

[271] Applicant’s SFIC at para [66].

[272] Applicant’s SFIC at para [69].

[273] Applicant’s SFIC at para [69].

[274] Applicant’s SFIC at para [70].

[275] Transcript dated 23 July 2021, 29.

[276] Transcript dated 23 July 2021, 34.

[277] Transcript dated 23 July 2021, 34-35.

[278] Transcript dated 23 July 2021, 35, 37.

[279] Transcript dated 23 July 2021, 41.

[280] Applicant’s SFIC at para [103]; Transcript dated 23 July 2021, 30.

[281] Applicant’s SFIC at para [104].

[282] Applicant’s SFIC at para [107].

[283] Transcript of proceedings dated 23 July 2021, 23.

[284] Respondent’s SFIC at para [32].

[285] Respondent’s SFIC at para [52]; Applicant’s SFIC at para [58].

[286] Transcript dated 23 July 2021, 64.

[287] Transcript dated 23 July 2021, 66.

[288] Transcript dated 23 July 2021, 67.

[289] Transcript dated 23 July 2021, 67.

[290] Transcript dated 23 July 2021, 69.

[291] Transcript dated 23 July 2021, 73.

[292] Transcript dated 23 July 2021, 73-74.

[293] [2008] HCA 31; 235 CLR 286.

[294] [2019] HCA 16; (2019) 266 CLR 250.

[295] See Shi at [46] per Kirby J; [101] Hayne and Heydon JJ and [143]; [151] per Kiefel J (as her Honour then was).

[296] [2020] FCA 230.

[297] VFWQ at [59]-[63].

[298] VFWQ at [49]-[50]; [53].

[299] VFWQ at [42]; [69].

[300] VFWQ at [42].

[301] [2019] FCA 574; (2019) 165 ALD 39 at [54] per O’Bryan J.

[302] [1938] HCA 34; (1938) 60 CLR 336.

[303] BOY19 at [24]; and [58]-[66].

[304] BOY19 at [54].

[305] BOY19 at [54].

[306] BOY19 at [55].

[307] [Redacted].

[308] VFWQ at [32] (referring to [Redacted], and BOY19 at [46]-[53]).

[309] [2019] FCA 574; (2019) 165 ALD 39.

[310] BOY19 at [46].

[311] BOY19 at [47]-[51].

[312] [1996] FCA 663; (1996) 68 FCR 422.

[313] (1999) 56 ALD 321; [1999] FCA 1277.

[314] See Migration Act s 501(6)) and see also the observations in [Redacted] in relation to s 501(6) of the Migration Act).

[315] BOY19 at [51].

[316] BOY 19 at [52]-[53].

[317] [2015] HCA 50; (2015) 258 CLR 173 at [54].

[318] See also M64 at [62] per Gageler J).

[319] (2019) 266 FCR 569; [2019] FCAFC 79.

[320] Minister for Home Affairs v G (2019) 266 FCR 569; [2019] FCAFC 79 at [61].

[321] M64 at [54].

[322] Minister for Home Affairs v G (2019) 266 FCR 569; [2019] FCAFC 79 at [65].

[323] Minister for Home Affairs v G (2019) 266 FCR 569; [2019] FCAFC 79 at [65].

[324] CPI 15 at para [3.1].

[325] CPI 15 at para [3.1].

[326] At [431] - [432].

[327] CPI 15 at para [3.3].

[328] CPI 15 at para [3.3].

[329] [2000] AATA 931, [8]; CPI 15 [3.3].

[330] [2011] AATA 304, , [120].

[331] CPI 15 at para [4].

[332] CPI 15 at para [4].

[333] [2018] AATA 1082 at [82] – [84].

[334] [2018] AATA 3686 at [97].

[335] CPI 15 at para 14.2

[336] [2020] AATA 2444.

[337] Dramani at [52]-[53].

[338] [2021] AATA 2000.

[339]Nazari and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2000 at [173(c)].

[340] Nazari and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2000 at [178].

[341] Nazari and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2000 at [167].

[342] [2021] AATA 1801.

[343] Ramazani and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1801 at [74].

[344] [2021] AATA 4377.

[345] Hosseini at [60]; Fang and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 3686, [97].

[346] Hosseini at [60].

[347] [2021] AATA 2437.

[348] Dawlatshahi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) 2021] AATA 2437 at [28].

[349] Dawlatshahi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) 2021] AATA 2437 at [33].

[350] Dawlatshahi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) 2021] AATA 2437 at [34].

[351] Applicant’s SFIC at para [52].

[352] Exhibit R1, T175, 1099.

[353] Within one month of birth.

[354] Exhibit R1, T106.

[355] Exhibit R1, T9.

[356] CPI 15 at para [4].

[357] Exhibit R1, T40, 285.

[358] Transcript dated 12 July 2021, 52.

[359] Transcript dated 12 July 2021, 53.

[360] Exhibit R1, T40, 284.

[361] Transcript dated 12 July 2021, 54.

[362] Transcript dated 12 July 2021, 19.

[363] Transcript dated 13 July 2021, 46.

[364] Transcript dated 12 July 2021, 43.

[365] Exhibit R1, T106, 729.

[366] Exhibit R1, T106, 730.

[367] Exhibit R1, T40, 290.

[368] Exhibit R1, T46, 365.

[369] Exhibit R1, T40, 315.

[370] Transcript dated 12 July 2021, 58.

[371] Exhibit R1, T9, 155 at para [71].

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