BAHARESTAN and DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2010/4035

General Administrative Division )
Re: Hassan Baharestan
Applicant

And: Minister for Immigration and Citizenship
Respondent
DIRECTION
Tribunal:      Mr A Sweidan, Senior Member
Date:            22 June 2011
Place:            Perth

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application by replacing the words ‘s 21(2)(h) of the Australian Citizenship Act 2007’ where they appear with the words ‘s 21(3)(f) of the Australian Citizenship Act 2007’.

..........[sgd A Sweidan]........
Senior Member

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 420
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/4035

GENERAL ADMINISTRATIVE DIVISION )

Re HASSAN BAHARESTAN

Applicant

And

DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Mr A Sweidan, Senior Member
Date20 June 2011
PlacePerth

Decision
The Tribunal:

1. Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) sets aside the decision under review; and

2. Remits the matter to the decision maker for reconsideration in accordance with a direction from the Tribunal pursuant to s 43(1(c)(ii) of the AAT Act that the applicant meets the “good character” requirement contained in s 21(2)(h) of the Australian Citizenship Act 2007 and should be granted Australian citizenship.

...............sgd SM Sweidan.........
Senior Member

CATCHWORDS
Australian citizenship – whether applicant meets “good character” requirement – applicant convicted of manslaughter and sentenced to 5 years and 10 months imprisonment in 1993 – no prior or subsequent criminal history – evidence of good character from employer and others – held “good character” requirements satisfied
LEGISLATION
Australian Citizenship Act 2007 s 21(2)(h)
CASES
Dandan and Minister for Immigration and Citizenship [2010] AATA 593
Darwich and Minister of Immigration and Citizenship [2007] AATA 2106
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Kakar v Minister for Immigration and Multicultural Affairs [2002] AATA 132
Re Mlinar v Minister for immigration and Multicultural Affairs (1997) 48 ALD 771)
Silsby and Minister for Immigration and Citizenship [2007] AAT 1729
REASONS FOR DECISION

20 June 2011 Mr A Sweidan, Senior Member

Background
1. This is an application to the Administrative Appeals Tribunal (the Tribunal) made by Hassan Baharestan (the applicant) seeking review of a decision of a delegate dated 25 August 2010 refusing to grant Australian citizenship to the applicant. The delegate determined that the applicant did not meet the “good character” requirement contained in section 21(2)(h) of the Australian Citizenship Act 2007 (the Act).
Facts
The following facts are not disputed:
2. The applicant is a 55 year old citizen of Iran who first arrived in Australia on 19 April 1989 as a stowaway and was granted a permanent entry permit on humanitarian grounds on 26 June 1989.
3. On 8 March 1993 the applicant was convicted of manslaughter in the Supreme Court of Western Australia. He received a sentence…

CaseChat Overview and Summary

The applicant, Baharestan, sought judicial review of a decision by the Department of Immigration and Citizenship, which refused to grant him Australian citizenship. The refusal was based on the applicant's past criminal record, specifically a conviction for manslaughter in 1993, which the department found to be inconsistent with the "good character" requirement for citizenship. The applicant's sentence was five years and ten months imprisonment, and he had no other criminal history. The applicant argued that he had demonstrated good character since his release and presented evidence from his employer and others to support this claim.

The court was required to determine whether the applicant met the "good character" requirement under section 21(2)(h) of the Australian Citizenship Act 2007. The key issue was whether the applicant's past conviction for manslaughter, in light of the time elapsed and his subsequent good conduct, disqualified him from meeting the good character criteria. The court also had to consider the weight to be given to the evidence of good character provided by the applicant, and whether this was sufficient to outweigh the historical conviction.

The court found that the applicant's conviction for manslaughter, while serious, occurred over two decades ago and did not reflect his conduct since his release from prison. The applicant had no further criminal history and had demonstrated good character through his employment and community involvement. The evidence presented by the applicant, including from his employer and others, was deemed credible and sufficient to establish that he met the good character requirement. The court concluded that the applicant's past conviction should not preclude him from meeting the good character criteria, given his conduct since his release and the lack of any further criminal activity. The decision to refuse citizenship was thus found to be unreasonable and was set aside.

The Tribunal ordered that the matter be remitted to the Department of Immigration and Citizenship for reconsideration, with a direction that the applicant meets the "good character" requirement and should be granted Australian citizenship. The Tribunal's decision was made under section 43(1)(c) of the Administrative Appeals Tribunal Act 1975, reflecting the court's finding that the original decision was flawed and did not appropriately consider the evidence of good character presented by the applicant.

Orders of the court

The Tribunal:

1. Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) sets aside the decision under review; and

2. Remits the matter to the decision maker for reconsideration in accordance with a direction from the Tribunal pursuant to s 43(1(c)(ii) of the AAT Act that the applicant meets the “good character” requirement contained in s 21(2)(h) of the Australian Citizenship Act 2007 and should be granted Australian citizenship.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

GENERAL ADMINISTRATIVE DIVISION		)
Re		HASSAN BAHARESTAN