BAHARESTAN and DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

[2011] AATA 420

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 of 5 years and 10 months imprisonment. The applicant does not have any other recorded criminal history.

4.      On 15 December 1993 a deportation order was issued for the applicant's removal from Australia. The deportation order was set aside following an application to the Tribunal in 1994.

5.      On 7 December 1994 the applicant applied for a protection visa which was initially refused in 1995. The applicant sought review of the refusal in the Refugee Review Tribunal. He was eventually granted a protection visa on 8 October 2007.

6. On 7 April 2004 the applicant's permanent visa was considered for cancellation under section 501 of the Migration Act 1958. However, on 10 December 2004 a decision was made not to proceed with the consideration of cancelling the applicant's permanent visa.

7.      On 22 December 2009 the applicant applied for grant of Australian citizenship.

8.      On 25 August 2010, a delegate decided to refuse the applicant’s application.

Legislation

9. S 21(2)(h) of the Act relevantly provides:

“ General eligibility

(2)A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

….

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

10.     Whilst "good character" is not defined in the Act, s 3 provides definitions relevant to character, including:

“ serious prison sentence means a sentence of imprisonment for a period of at least 12 months.”

11.     The relevant policy guidelines are outlined in Chapter 10 of the Citizenship Instructions (the Instructions).

Good character – Authorities – General Principles

12.     The term ‘good character’ is not defined in the Act. The decision maker should have regard to the ordinary meaning of the words in assessing good character: see Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 where Lee J noted at [94]:

“ 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 while the latter is a review of subjective public opinion: see Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25; 117 FLR per Miles CJ at FLR 459-60; Plato Films Ltd v Speidel [1961] AC 1090 per Lord Radcliffe at 1128-9, Lord Denning at 1138. 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: see Re Davis (1947) 75 CLR 409 per Latham CJ at 416; Clearihan per Miles CJ at FLR 461. Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.”

13.      The existence of criminal convictions is clearly relevant in determining good character. Davies J in Irving (supra) stated at [87]:

“ [C]riminal convictions or the absence of them and character references are likely to be an important source of primary information. If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely on the character of the applicant. If the conviction was in the last, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.”

14.     In Kakar v Minister for Immigration and Multicultural Affairs [2002] AATA 132 Deputy President Wright stated at [14]:

“ When criminal offences have been committed by an applicant they will obviously be taken into account. The extent to which the existence of criminal conduct will weigh in the scales against a finding of good character will depend upon many things including the seriousness of the crime, the length of time since its commission and the degree of rehabilitation of the offender.”

15.     The objective fact of a criminal conviction carries more weight than a review of subjective public opinion on an applicant (Re Mlinar v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771).

16.     In Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931 where Deputy President Breen stated:

“ 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 to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts.  It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State.  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.”

Respondent’s Contentions

17.     The applicant was sentenced to a lengthy sentence of 5 years and 10 months imprisonment.

18.     The facts of the applicant's offence are set out in the sentencing remarks of Murray J as follows:

“ The view I take of it and the basis upon which I sentence you is that you had the view, when you went to the deceased man's house, that you would discuss with him the matter that was of particular trouble to you - the question of your relationship with the deceased man.

I think that when you went there it got out of hand. I think that you introduced the knife into the fray and you did that quite deliberately and you were very foolish to do that. There is no doubt that you deliberately struck the blows in the heat of anger, one of which brought about Mr Good's most unfortunate death. I think when you did that you were so overcome with the passion of the moment that you in fact did not have the intent to do the accused serious injury or to kill him. That is the basis upon which I should proceed.”

19.     The seriousness of the offence is reflected in Murray J's sentencing remarks:

“ Nonetheless that version of the facts I think reveals a case of manslaughter which is of some seriousness. This man's life was taken as a result of your direct actions. In your evidence you conceded the point, which I think to be self-evident from the history, that he was in many respects a very good man who provided you with very great assistance and guidance in this country in the difficult circumstances of your entry into the country and in the difficulties that you encountered in trying to support yourself here and become established here.

You owed him much but you took his life and you did that, it seems to me, in circumstances when there were many other avenues open which might have been used properly to resolve your difficulties in your relationship with him. So I take the view that it is a case of some particular seriousness.

…

I have sympathy for you and for your position but I must react to the seriousness of the act which you have done. I must do that to demonstrate to others that in this community the sanctity of human life is valued highly and those who take it will be punished seriously.”

20.      The offence, whilst 18 years ago, was of the type that all Australians would find repugnant and involved an act of significant violence which resulted in the death of an Australian citizen . The respondent contends that the circumstances of this particular offence are such that the Australian community would not want a person who has committed such a crime to become an Australian citizen.

21.     The applicant seeks to attribute the offence to the fact that he was at the time of the offence suffering from an undiagnosed mental illness.  The applicant was not sentenced on that basis but it seems likely that it was raised in his criminal trial. In summing up  Murray J stated to the jury:

“ So far as the accused person is concerned, he is of course to be taken as a person who in terms of our law is presumed to be of sound mind. I don’t want you to be distracted in any way by speculating about of considering some part of his evidence which might have thought were perhaps more bizarre; this question of the suspicions about others watching him and matters of that sort. There is no suggestion that the accused person was in any relevant sense a person who at the time we are concerned with was other than entirely responsible for his actions and for his conduct.”

22.     The respondent asserts that the applicant seeks to portray this as evidence which was ignored by the sentencing Judge. In fact it was dismissed and the Tribunal is precluded from going behind the conviction and any findings of fact made by a criminal court.

23.     The applicant's statement of facts and contentions claims that the applicant regrets the death of his victim. However the respondent points out that there is no statement to this effect in either the applicant's statement or any other material provided by the applicant to the Department.

24.     The respondent also asserts that there is an undertone in the applicant's statement and the statements of his referees that the applicant's actions were at most a disproportionate but understandable reaction to his situation. That is, the applicant responded to perceived threats from his victim that if the applicant did not consent to sexual activity he would arrange for him to be deported.

25.     In relation to this the respondent points out, firstly, that the applicant's victim is obviously unable to refute this accusation. Furthermore, it seems clear that it was raised in the course of the applicant's criminal trial. The sentencing Judge did not see this as indicative of any mitigation and the respondent says that neither should the Tribunal. The respondent contends that it is of considerable concern that the applicant still appears to apportion some blame to his victim.

26.     The respondent also points out that the applicant's assertion that he was suffering from a mental illness at the time did not preclude him from attempting to knowingly press a claim for self-defence that he later admitted was false. In his address to the jury the sentencing Judge stated:

“ You will recall that at one time during the course of his discussion which was videorecorded with the police officers he did say words to the effect that Good had a knife at one point and was proposing to use it in the course of the struggle between them. That, had it been true - but the accused confesses to you in his evidence in the court that it was not a correct statement, was an untrue statement which he made - would raise the question of self defence.”

27.      The applicant has stated that the circumstances of the offence occurred at such a time when he was experiencing auditory hallucinations brought on by a period of significant stress. The respondent asserts that there is no professional evidence that alleviate the concerns of the respondent in relation to the applicant's capacity to commit similar offences if the same set of emotionally distressing circumstances arose once more.

28.     Finally the respondent points out that the character references provided by the applicant in support of his application for Australian citizenship while acknowledging the applicant's history appear to accept that the applicant's actions were in response to provocation by his victim. The statement of Poune Gregory states at paragraph [6]:

“ I believe that he was provoked at the time of the killing. The priest was forcing him to have sex with him and threatening to have him sent back to Iran if he did not. Considering Hassan's cultural background and what he went through as an asylum seeker in order to come to Australia, this pushed him over the limit.”

29.     Similarly the statement of Geoff Barr states at paragraph [7]:

“ I could not believe that he had done what he had done. I knew that Minister must have treated him very badly to make him react that way.”

30.     The respondent contends that character references which could be construed as condoning a violent criminal act should be rejected.

31. The respondent contends that the applicant is not of good character pursuant to s21(2)(h) of the Act and therefore should not be granted Australian citizenship.

Evidence, Relevant Case Law and Tribunal’s Findings

32. The Australian Citizenship Instructions (“Instructions”) provide guidance on policy in relation to the exercise of powers under the Citizenship Act. The Instructions provide a list of factors that decision makers should have regard to where a person has a criminal record. Those factors include whether there were any extenuating circumstances relating to the offence.

33.     The Tribunal notes in this regard that the ‘summing up’ comments by the Trial Judge, Murray J refer to the  relationship between the two men; more particularly  his understanding of the applicant’s expectations of Good as a Minister of the church:

“ …the idea of the deceased being a person in the position of the mullah or the priest whose conduct was ordinarily to be treated with great respect and honour, and who therefore might be considered to have a much greater impact upon the part of the accused person if there was a substantial falling away on the part of the deceased from those standards of behaviour which the accused expected of him”.

34.     The Tribunal also has regard to the applicant’s consistent evidence that prior to, during and after, the killing of Good, the applicant heard voices telling him that what Good had done was bad.

35.     The Tribunal accepts the applicant’s submission that he may have been labouring under a “non-diagnosis” of Chronic Paranoid Schizophrenia at, or around the time of, the crime.  Given the medical evidence that the applicant was admitted to Graylands Hospital for treatment of a psychotic disorder soon after his incarceration [and correspondingly medicated], it is reasonable to infer that the applicant may have been suffering from this psychiatric illness at the time he killed Good.

36.     It is significant in the Tribunal’s view that the applicant was transferred to Graylands Hospital for psychiatric testing only a few months after sentencing and incarceration.  Once the applicant was admitted to Graylands, the treating doctors diagnosed him to be suffering a psychotic disorder and he was then treated with appropriate medications.  

37.     After the applicant was released from prison he travelled to Sydney to stay with his sister.  At this time, the applicant stopped taking his medication as it had ran out after his release from prison.  Within a short period of time the applicant began to hear the voices again.  The applicant became afraid so he presented himself to Bankstown Lidcombe Hospital in Sydney where he was admitted for 2 to 3 months and diagnosed with Paranoid Schizophrenia.  During this time the applicant was medicated and he was able to manage his mental health and the associated auditory hallucinations.  

38.     Once the applicant was discharged, he returned to Perth. 

39.     Shortly after the applicant’s return to Perth he ran out of the medication he was prescribed by the Sydney Hospital.  Again, the applicant began to hear the voices in his head. 

40.     However, on this occasion, the applicant was familiar with the warning signs and went to a General Practitioner.  The applicant was admitted to Graylands Psychiatric Hospital where he was ultimately diagnosed with Chronic Paranoid Schizophrenia. 

41.     Graylands Hospital transferred the applicant to Fremantle Hospital where he was admitted as a voluntary patient.  The applicant remained in Fremantle Hospital for some months. 

42.     During his admission in Fremantle Hospital, the applicant’s medications were stabilized and his symptoms settled. 

43.     The applicant remains an outpatient with the Fremantle Hospital, attending the Depot Clinic every month for his medication.  The applicant responded well to the medication and his condition stabilized.

Re-establishment

44.     Prior to the applicant’s incarceration in Casuarina Prison, he had been working with Western Galvanisers. 

45.     After the applicant had been released from prison, and after he had stabilized his mental health issues, he applied again for  work with Western Galvanisers.  Mr Geoff Barr, General Manager of Western Galvanisers, considered the applicant to be a good worker and a trustworthy man.  Mr Barr employed the applicant again (see below).

46.     In November 1997, after he started working again at Western Galvanisers, the applicant was hit by a car when he was riding his bike home.   The applicant suffered a head injury, fractured pelvis, fractured left tibia and chest injuries.  The applicant was hospitalized for some months.  The applicant has suffered back pain since this time and has been unable to work since his accident.

47.     The applicant currently resides in Homeswest accommodation.  The medical evidence is that his mental health issues are stable as he is managing his medications well.

48.     The Tribunal notes that the applicant regrets the death of Good.  The applicant’s conduct following the death of Good clearly shows his remorse.  He immediately turned himself in to the police, telling them what he had done.  Indeed, the applicant’s behavior following the crime was noted by Murray J at page 331 of the “summing up”:

“ …this…was a case where immediately afterwards the accused was displaying not only concern for his own position, displayed for example in a telephone call to Barr, when he said, “I’m in trouble…”, but where he was displaying very evident remorse and distress over what had occurred to the deceased person.”

49.     The applicant’s good behaviour since serving his sentence and the medical evidence which shows his proven ability to manage his mental health issues must be taken into account.

Case law

50.     It is clear that evidence as to the applicant’s contemporary good character must be taken into consideration when assessing whether the applicant is of good character.

51.     In Dandan and Minister for Immigration and Citizenship [2010] AATA 593 21 July 2010 the Tribunal held:

“ On review, the AAT places itself in the shoes of the original decision-maker. As such, on review, the reference to the “time of the Minister’s decision” in s 21(2)(h) should be construed as a reference to the time the decision-maker – the Tribunal – makes its decision. The Tribunal must therefore consider whether the applicant was of good character as at the date of its own decision on review.”

52.     While the existence of criminal convictions is relevant in determining good character, it is only one of several factors to be considered.

53.     In Darwich and Minister of Immigration and Citizenship [2007] AATA 2106 (24 December 2007) the Tribunal said at 41 and 43:

“ The ultimate assessment as to whether a person is “of good character” is concerned with their enduring or intrinsic moral qualities. It is not necessary to be satisfied that the person meets, or has always met, the highest standards of integrity. Neither is it necessary to address, as a separate criterion, the extent to which regard may properly be had to the question of the person’s reputed good standing, fame or repute. It is necessary to show that the person’s moral qualities are of sufficiently high standard to warrant the favourable exercise of the relevant statutory discretion or function: see Goldie v Minister for Immigration & Multicultural Affairs 1999 FCA 1277; (1999) 56 ALD 321 at 323 and 324; citing Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 425 and 431. In the case of an application for Australian citizenship, the privileges and responsibilities of citizenship inform the appropriate assessment of character: Re Mlinar and Minister for Immigration & Multicultural Affairs (1997) 48 ALD 771; and suggest that the relevant assessment of character involves some comparison between the applicant’s intrinsic moral qualities and the standards of behaviour and social conduct evident, as desirable qualities, in the Australian community: Re Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132 at [13]. That comparison and appropriate assessment ultimately requires an impressionistic conclusion about the significance of a range of relevant considerations, rather than the application of a conclusively prescriptive definition. In arriving at the ultimate conclusion about an applicant’s character in any particular case minds may reasonably differ about the weight to be given to different circumstances. Consequently they may also differ about the proper conclusion to be drawn. But the possibility of reasonably reached different conclusions does not mean that the criteria for assessing character are merely idiosyncratic.

Apart from the automatic disqualification provisions referred to in the preceding paragraph, the lapse of time between an application and the applicant's past criminal conduct is a relevant, but not necessarily decisive, consideration in an assessment of their character. Past conviction is not, and in the absence of any specific statutory provision (such as section 501(6) of the Migration Act 1958), cannot be regarded as, an automatic barrier to the establishment of a person’s contemporary “good character”: Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187.”

54.     The applicant does not deny the seriousness of the crime for which he has now served his sentence. However, he submits that he has reformed and the Tribunal notes that he had not been involved in the criminal justice system before his crime, nor since his release from prison in 1997.

55.     Important community members, in the full knowledge of the applicant’s past criminal history, regard the applicant as a man of good character and a contributing member of the community.   The statement of Ms Poune Gregory, a translator and interpreter, is one such person.  Ms Gregory has had ongoing contact with the applicant since the applicant’s call to her from the police station following the death of Good. Ms Gregory states that, throughout her association with the applicant, she has always found him to be of good character.

56.     Of particular significance is the evidence of Mr Geoff Barr the applicant’s former employer who employed him both before and after his incarceration.  Portions of that evidence are set out below:

“1.    … I first met Hassan Baharestan around the end of 1990.  He turned up at Western Galvanisers looking for a job.  I interviewed him and gave him the job.

2.Hassan mostly did labour work.  He was a very good worker and really reliable.  He got along well with the other workers as well.  In our work place, sometimes it is difficult for people from different backgrounds to fit in. …

3.Hassan did have some issues, which we began to notice.  When he finished work he did not want to go home, he would hang around.  It got so bad that he began to sleep at the factory floor at night.  We did not know why or what the problem was because his English was broken.  We asked an interpreter to come and ask him but that also did not help find out what the problem was.  The interpreter was a woman, so perhaps he could not talk about it with her.

4.I assumed that his anxiety was about his experiences in his home country, but now I think it may have had something to do with the difficulties he had with the Minister.  All I knew was he was unhappy with something.  We did what we could and even told him about a psychologist he could visit in Kenwick.

5.Then one morning, Hassan telephoned me and said ‘Geoff, I did a very bad thing’.  I asked him what and he said ‘I killed someone’.  He was at the Fremantle Police Station.  I told him I would come straight down.

…

7.While Hassan was in Casuarina prison, I visited him several times.  I could not believe that he had done what he had done.  I knew that that Minister must have really treated him very badly to make him react that way.  It was really so out of character.  I have only ever known Hassan to be  gentle man.  I have never seen him be aggressive to anyone.

8.I went to the trial and answered some questions at the trail, I wanted to help him.  Hassan was convicted of manslaughter and sent to prison.  I knew at this time that he had some mental health issues.

9.After he was released from prison, he came back to Western Galvanisers and asked for the job back.  I said yes straight away.  I had not seen him for a while but I trusted him and knew he would be a good worker.  I was happy to have him work for me again.

10.At this time I had two Australians working for me who decided they did not like Hassan because of where he came from.  This is the only time I have seen Hassan angry, but even then he was not talking about hurting anyone.  He was more concerned about protecting himself because these two guys had threatened to beat him up.

11.It was on this day that he went off on his bike and was hit by a car.  He was very badly hurt and was in hospital for a long time.  We were very worried about him and even after he was released from hospital he was very lame from the accident, even now he walks with a limp.

12.Every now and then, I still see him in Fremantle.  He always has a big smile on his face when he sees me.  Even though he has been through so much, he has a very peaceful way about him.  He still smiles whenever he sees you and offers to shake your hand.

13.I think that I know Hassan pretty well, in my view he has a good character.  He is not violent or aggressive.  I still don’t fully understand why he did, except that the Minister must have done some really terrible things to him and he was not well.  I do not think he would do that again because he does not have a violent nature.  He is just a calm bloke.

14.I think he would be a very good citizen.  I would employ him again in a second if he could work.  He is a decent bloke.”

57.     In Darwich (supra) the Tribunal said at 40:

“ Various provisions of the Australian Citizenship Instructions outline considerations relevant to the assessment of character for the purposes of section 13 of the Australian Citizenship Act 1948 (‘the 1948 Act’) … Although past criminal conduct can be a potent indicator of character, the ultimate matter to be assessed is the applicant's contemporary behaviour and reputation. The potentially adverse significance of past criminal behaviour may be diminished where it is demonstrably aberrant by comparison with the general pattern of the applicant's conduct. The inherent difficulty of accurately assessing character will mean that it is often prudent to require a reasonable amount of time to have passed in order to justify a conclusion that a person is currently of good character. But other relevant factors, in addition to the passage of time, include the applicant's contemporary status, their employment and community reputation. Supportive declarations from character referees who acknowledge awareness of the applicant's past criminal behaviour, and vouch for their changed character, are entitled to be given considerable weight.”

58.     The applicant has exhibited good behaviour for the 13 years since he was released from prison. This lengthy passage of time indicates a strong likelihood of the applicant’s ongoing good behaviour.

59.     Darwich at 46–47 also discusses the issue of passage of time, noting:

“ There is a considerable degree of imprecision about the utility of the mere passage of time in any assessment of a person's ‘good character’. On the one hand, there is an undeniable element of force in the Minister's submission that lapse of time is relevant. The longer the period since proven past misconduct, the potentially greater level of satisfaction one can have about the likelihood of continuing future good conduct. A sustained period of good conduct, together with an informed confidence of its likely future continuation, provides a good platform from which to opine that a person is indeed of ‘good character’.”

60.     Perusal of the Court Transcript (summing up) (T18 Document) shows:

·     the relationship of the applicant with the deceased victim was one of influence.  The applicant regarded the deceased, a Minister of the Uniting Church, with great respect and looked to him for guidance and support during his establishment in Australia;

·     the applicant came to Australia as a refugee in difficult circumstances and was still finding it difficult to establish himself;

·     on the day of the crime the applicant came to the deceased’s house with the intention of discussing the matter of his ‘relationship’ with the deceased;

·     the sentencing judge accepted that prior to the crime, the applicant had previously been a person of good character.

61.     Comments regarding the applicant’s character were made by the sentencing judge during the sentencing hearing.  At paragraph 6 on pages 97 and 98 of Document T18 [Court transcript from the sentencing of the applicant] Murray J states:

“ I appreciate the difficulties that lie in your past. It seems to me that you have been a person of previously good character and you had every prospect, and still have every opportunity when you serve the sentence which I shall impose on you, of establishing yourself in this community as a very worthwhile member of it. It seems a silly thing to say but I would wish you to keep firmly in your mind as you  serve the sentence I shall impose, that the rest of your life lies before you and it is worthwhile putting in the effort to establish yourself again as a law abiding, effective member of this community.”

62.     In Silsby and Minister for Immigration and Citizenship [2007] AAT 1729 (4 September 2007) the Tribunal said at 7-8:

“ Guidelines approved by the Minister are contained in the Australian Citizenship Instructions (the Instructions) and in particular Chapter 5.4 of those Instructions. Those Instructions are intended to assist delegates of the respondent in exercising their powers under the Act.

Chapter 5.4 sets out criteria by which good character can be judged. The relevant paragraphs in this case are as follows:

5.4.11 Consider whether a crime was a one-off occurrence that can now be considered ‘out of character’, or whether the person's criminal record shows repeated offences and a pattern of unlawful behaviour which would suggest that the applicant is not of good character. Where the offence was not out of character, consider whether the applicant has been rehabilitated (see 5.4.13 – 5.4.17).

5.4.12 Consider whether there were any extenuating circumstances relating to the crime being committed. For example, a crime committed under periods of temporary psychological disturbance (including post-natal depression, battered wife syndrome, involuntary effects of medication) or under duress may be given less weight than if these circumstances did not exist. The onus is on the applicant to provide evidence supporting a claim of extenuating circumstances.”

63.     In Darwich it was held at 49:

“ In the present case the following considerations, when taken together, justify the conclusion that Mr Darwich is a person of ‘good character’, notwithstanding the seriousness of the offences he committed in 1998 and the significant period of imprisonment he subsequently served:

The remarks of the sentencing judge in 2000 indicate that Mr Darwich had an otherwise unblemished character at the time of the 1998 offences. His conduct, though serious and deliberate, may therefore be regarded as aberrant. Furthermore, it occurred over nine years ago.”

64.     In the Tribunal’s view the commission of the crime by the applicant was out of character and could be considered as an aberrant behaviour.

65. The Tribunal finds that the applicant is a person of good character for the purposes of Section 21(2)(h) of the Australian Citizenship Act.

Decision

66.     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.

I certify that the 66 preceding paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan, Senior Member

Signed:         E Jordan           .....................................................................................

Associate

Dates of Hearing  7 and 8 June 2011
Date of Decision  20 June 2011
Counsel for the Applicant              Mr S Walker
Counsel for the Respondent         Mr A Gerrard
Solicitor for the Respondent         Australian Government Solicitor