Dawlatshahi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2437 (22 July 2021)

(a) The T, Supplementary T and Further T documents;

(b) Statutory Declaration of the Applicant dated 22 March 2021;

(c) Statutory Declaration of Wayne Edward Ormiston dated 11 March 2021;

(d) Statutory Declaration of Kevin Powell dated 12 March 2021;

(e) Statutory Declaration of Derryn Langridge dated 12 March 2021;

(f) Letter from Brentwood Park Family Practice dated 22 April 2021;

(g) Letter from Dr Kishawi dated 17 March 2021; and

(h) Statutory Declaration of Mohammed Zarif Ahmadi dated 16 March 2021.

1. Oral evidence was given by the Applicant (through an interpreter) Mr Ormiston, Mr Ahmadi and Mr Langridge.
2. The Applicant's ethnicity is Hazaras and his religion Shia. As such, his life in Afghanistan was difficult. Two of his brothers unfortunately died when he was young, he had no formal education and never had any formal interactions with government authorities or agencies there. Due to risk from the Taliban he left Afghanistan for Australia.
3. After his visa was granted and he was released into the Australian community, he was told by others in English classes, then conducted by Australian Multicultural Education Services, that if he declared to the Australian government that his mother had passed away, then that will be advantageous in him sponsoring his brothers to Australia. He believed it was a way in which he could save his brothers from danger.[9] He provided such incorrect information regarding his mother in June 2010 on the Form 842 - Application for an Offshore Humanitarian Visa and his Form 80 in September 2011.
4. Next, in a citizenship application dated 28 October 2014, he stated that his mother was alive because by then he had knowledge of Australian law, he wanted to 'correct the mistake' and was feeling a 'weight in my shoulder' and 'wanted to feel comfortable'.[10] The Applicant's evidence in this regard was convincing.
5. Such desire to be truthful did not extend to revealing the existence of his brother Najeeb which, on the evidence before the Tribunal, is explained by the fact that he has never had a good relationship with Najeeb and Najeeb did not want to be included in that application. Due to tradition, the Applicant is the head of the family as the eldest here in Australia so he is obliged to continue to live with his, often aggressive and controlling younger brother Najeeb. Hence, despite the Applicant being older, he felt he had no alternative but to follow Najeeb's demand and not disclose his existence, to maintain harmony between them and within their household. Further, despite living in the same house, the Applicant has a separate life from Najeeb and his family.[11] The Tribunal finds that in these circumstances, it is clear that in the past Najeeb had a level of control or influence over the Applicant.
6. The Tribunal also accepts the Applicant's evidence regarding his two deceased brothers and finds that the non-disclosures by the Applicant in this regard were inadvertent, not intentional and understandable due to his young age at the time of their unfortunate passing, such as not to detract from an assessment of his character.[12]
7. The Applicant's mental health is not good, largely due to the fact that his wife and three young children remain in Afghanistan and he fears for their safety.[13] Such fears are amplified by current events unfolding in Afghanistan.
8. The Applicant acknowledges the mistakes he has made and asks for forgiveness.[14] It is apparent to the Tribunal that he is genuinely remorseful and clearly understands the distinction between right and wrong.
9. The Applicant was cross examined. Substantial confusion arose surrounding the Applicant's evidence in respect of paragraph 15 of his statutory declaration of 22 March 2021. The Applicant's sister in law, Salima Haidari, completed the application document for the Applicant, she having a better command of English. The Tribunal accepts, on balance, the Applicant's explanation as to why his mother was listed as deceased, over the possible discrepancies identified during cross examination.[15]
10. The Applicant's most recent signed Form 80 was provided in September 2019. Most other forms which he had signed in the past listed his mother as deceased. In cross examination, he stated "I have completed different forms by different people, like Emma (indistinct) Salima and other people and because I'm like a (indistinct) person when someone says something I accept it. But now I accept that is my mistake, I can accept it".[16] In the opinion of the Tribunal, the Applicant now appreciates the danger of letting others complete forms for him in English and then signing them without a clear understanding of their content. The Tribunal is also confident that the Applicant is unlikely to allow this to happen in the future and that he genuinely regrets his past instances of this conduct.
11. The Applicant had some difficulties giving his evidence during the hearing and this was understandable due to his obvious lack of formal education and difficulties with his memory, qualities of the Applicant which the Tribunal accepts. The Tribunal is of the opinion, despite such challenges, that the Applicant gave his evidence honestly and was not trying to mislead the Tribunal. It was clear that the Applicant found the experience of giving evidence quite challenging which is understandable in light of his background and life experience to date.
12. The Tribunal is satisfied that the Applicant cannot read English very well (and probably did not read the relevant prior documents prepared on his behalf by others), and this has led to a repeating of minimal misinformation originally provided by the Applicant years ago, by those assisting him. Hence relevant subsequent applications or documents have repeated the error and 'inadvertently incorrectly entered' that his mother was deceased.[17]
13. 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. On the evidence, this is not a concept he was familiar with prior to arriving in Australia and because of his life experience it is a concept that he has come to know over the years, as he has developed his life in Australia. It is evident that he has developed an appreciation for honesty in dealing with Australian Government authorities over the last few years.
14. Substantial and persuasive character evidence given in favour of the Applicant underscores the way the Applicant has developed as a prospective Australian citizen over the last few years. Numerous statutory declarations and letters of support are in evidence and oral evidence was also given by:

(a) Wayne Edward Ormiston, the Applicant's English teacher and close friend who testified as to his good character and trustworthiness. For example, in 2019, he entrusted the Applicant with his house and garden by leaving him a key whilst overseas;[18]

(b) Mohammed Zarif Ahmadi, a close friend of the Applicant who has known him for over a decade. His evidence was consistent with and supported relevant aspects of evidence of the Applicant's life experience and limitations which was before the Tribunal; and

1. On balance, upon reviewing all of the evidence, the Tribunal does not accept that the Applicant's ultimate 'correcting of the record' by his statutory declaration of 25 July 2020 was 'too little too late'. Such a view does not withstand close scrutiny once all the evidence is assessed. It is by no means clear that the Applicant is responsible for the latter repeats of the incorrect information regarding his mother being deceased. Also, the non-disclosures regarding Najeeb were the result of significant (and essentially inescapable) familial duress. The Tribunal is satisfied that the Applicant will not succumb to such duress in the future.
2. The Applicant being uneducated and mentally challenged (yet still endowed with an established sense of right and wrong), has in the past tried to keep those in his family happy and has made some mistakes regarding misinformation contained in various forms which he has signed. However, the explanations surrounding such mistakes are accepted by the Tribunal and as such do not significantly detract from an objective assessment of his 'good character'. The evidence does not disclose a pattern of systematic and wilful misleading conduct by the Applicant in his dealings with the Australian Government.
3. The Tribunal also finds on the evidence that the Applicant is a hard worker, who works six days a week and yet still finds time to assist others. Further, he has not faced any criminal charges in Australia. These findings support the Tribunal's opinion that the Applicant is of 'good character' and will make a positive contribution to the Australian community in the future.
4. By reason of the matters discussed above, the Tribunal is satisfied as to the enduring moral qualities of the Applicant, that he knows right from wrong, that he appreciates his prior mistakes and is genuinely remorseful. The Tribunal is satisfied as to the Applicant's 'good character' for the purposes of s. 21(2)(h) of the Act.
5. On 15 July 2021, submissions were sent to the Tribunal on behalf of the Applicant which are without foundation, particularly in light of the above.

1. The Tribunal sets aside the reviewable decision of 17 November 2020 and remits the matter to the Respondent for reconsideration pursuant to s.43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975, the Tribunal being satisfied as to the Applicant's 'good character'. This is the correct or preferable decision.

I certify that the preceding 40 (Forty) paragraphs are a true copy of the reasons for the decision of Mr. A. Maryniak QC, Member

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

[1] BOY19 v Minister for Immigration [2019] FCA 574 at [51].

[7] Applicant's Statement of Facts, Issues and Contentions at [46]-[47].

[8] Respondent's Statement of Facts, Issues and Contentions at [2] and [46].

[9] Transcript of Proceeding, Day 1 ('Transcript') at [p 15-17].