Fatehi and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)
[2023] AATA 1551
•6 June 2023
Fatehi and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 1551 (6 June 2023)
Division:GENERAL DIVISION
File Number(s): 2019/7403
Re:Alireza Fatehi
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member A Poljak
Date:6 June 2023
Place:Sydney
The decision under review is set aside and remitted with the direction that the applicant is of good character and satisfies paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth).
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Senior Member A Poljak
CATCHWORDS
CITIZENSHIP – application for Australian citizenship by conferral – whether the applicant is a person of good character under paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) – where the applicant provided false or misleading information to the department – consideration of relevant medical information – consideration of relevant material, law and policy – decision under review set aside and remitted.
LEGISLATION
Australian Citizenship Act 2007 (Cth)
Migration Act 1958 (Cth)CASES
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634SECONDARY MATERIALS
Australian Citizenship [Policy Statement]
Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act
REASONS FOR DECISION
Senior Member A Poljak
6 June 2023
Alireza Fatehi, the applicant, is a citizen of Iran.
The applicant first arrived in Australia on 21 June 2011 as the holder of a Visitor (Subclass 676) visa (First visitor visa). The applicant subsequently lodged applications for a Visitor (subclass 676) visa on 14 March 2012 (Second visitor visa) and on 24 April 2012 (Third visitor visa).
On 4 June 2013, the applicant applied for a Protection (Subclass 866) visa (Protection visa application). The Protection visa application was granted on 12 October 2015, after the Tribunal remitted the matter to the Department for reconsideration with the direction that the applicant satisfied paragraph 36(2)(a) of the Migration Act 1958 (Cth).
On 16 February 2017, the applicant lodged an application for Australian citizenship by conferral.
On 8 November 2019, the applicant’s citizenship application was refused as the delegate was not satisfied that the applicant was of good character, and therefore found that the applicant did not meet the requirement under paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act). Specifically, the Delegate found that the applicant had provided false and/or misleading information to the Department on multiple occasions. This is the decision under review in these proceedings.
Good character and Consideration
The term ‘good character’ is not defined in the Act. Guidance can be found in the Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (CPI 15) and the Australian Citizenship [Policy Statement], which came into force as of 27 November 2020 (the Policy).
The role of the Policy and CPI 15 is to offer guidance on the interpretation of, and exercise of powers under, the Act. Although I am not bound to strictly apply the Policy and CPI 15, it is government policy and should be considered if it is consistent with the Act and unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.
As to the definition of good character, Justice Davies of the Full Federal Court said in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 424 – 425 and 427 – 428:
The question whether a person is or is not of “good character” is primarily an issue
of fact.
…
It should also be observed that the term “good character” is not precise in its
denotation. In one sense, it refers to the mental and moral qualities which an
individual has. In another sense, it refers to the individual’s reputation or repute …
Necessarily, when decisions are made in Australia under the Act in relation to persons who are overseas, greater attention needs to be given to objective facts and to reputation or repute rather than to a detailed analysis of the person’s inherent qualities. I do not suggest that, in the context, “good character” refers to reputation and repute as such. It does not. …
…
The drawing of a conclusion by a decision-maker as to whether he or she is satisfied that an applicant for a visa is of “good character” requires the exercise of a value judgment. There are no precise parameters which distinguish “good character” from “bad character”. Although, in general, “good character” can readily be recognised, in a particular case views may differ. It is for the administrative decision-maker, in whom Parliament has reposed the function of making that assessment, to arrive at a decision.
Justice Lee observed at 431 – 432:
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…
The CPI 15 states the phrase ‘enduring moral qualities’ encompasses concepts of characteristics which have been demonstrated over a long period of time; distinguishing right from wrong; and behaving in an ethical manner, conforming to the rules and values of Australian society and overseas. Broadly speaking, the good character requirement looks at the essence of the applicant and their behaviour being a manifestation of essential characteristics.
In Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8], Deputy President Breen discussed the requirement of good character in citizenship applications:
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 year’s time when he can demonstrate a longer period of positive contribution to the Australian community. (Emphasis added)
The principles in the CPI 15 should be considered in light of the facts of the particular case and should not be applied rigidly or inflexibly. The CPI 15 provides that it is also necessary to consider any other information that is relevant to a person’s character and any other matter that is relevant to an assessment of character in the circumstances. 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 several 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.
The Applicant’s Dealings with the Department, Inconsistencies and Disclosure of Information
It is acknowledged by the applicant that incorrect information was provided to the Department on multiple occasions including throughout his visitor visa applications, his protection visa application, and his application for Australian citizenship. In summary, the errors and issues identified by the parties are as follows:
In the applicant’s visitor visa applications, the errors identified relate to the nondisclosure of his imprisonment in Evin prison in Iran and nondisclosure of previous failed visa applications to the United States of America (USA) and United Kingdom (UK). He also failed to disclose that he had a friend in Perth.
The errors identified in the applicant’s protection visa application process included nondisclosure of previous failed visa applications to the USA and UK; the nondisclosure of his second visitor visa application; inconsistencies about when he was arrested; inconsistent or incomplete answers regarding the nature of the applicant’s employment with Namaplast Robat Co (Namaplast); inconsistent information as to dates he first became interested in Christianity; and a failure to disclose a stroke suffered by the applicant in 2009.
In the protection visa application, the applicant did answer ‘yes’ to questions as to whether he had been convicted of a crime, associated with, or received training from an organisation engaged in violence, and/or been involved in an act of violence. He stated, ‘Imprisoned by Iranian regime for participating in anti-government demonstrations’.
The errors identified in the applicant’s citizenship application process included incorrect answers to character questions including about his military service and his confinement in Evin prison; inconsistent or incomplete answers regarding the nature of the applicant’s employment with Namaplast; incomplete details about countries where the applicant lived, specifically Japan; and incorrect answers to character questions in the Form 80 regarding past imprisonment, employment and convictions.
In a statutory declaration dated 6 November 2019, the applicant admitted that he deliberately did not disclose his confinement in Evin prison in his visitor and citizenship applications as he was fearful that such disclosure may result in automatic refusal of his applications.
I do note that the applicant did declare his military service in the Form 80 and provided a copy of his military service card to the Department when asked. He also disclosed the refusal of his visa to the USA in the Form 80 and included Japan in the Form 80 as a country he had lived.
The respondent also contends that the applicant did not present at hearing as a credible witness because his evidence in cross-examination was vague, evasive, argumentative, and at times implausible. In closing submissions, the respondent set out numerous examples of where it believed the applicant was evasive and non-responsive.
I do note that there was also an instance at hearing when the applicant sought assistance from his legal representative with his evidence, instances where he contradicted early aspects of his oral evidence, became agitated over the questioning, and claimed other people had helped him fill out application forms when we could not recall details.
Health and Medical Evidence
Dr Dowla, a medical practitioner, neurologist, and neurophysiologist, who has seen the applicant since October 2019, recorded in a report dated 17 April 2020, that the applicant presented with a history of cerebral haemorrhage in 2009, ‘… leading to aphasia – hydrocephalus – requiring decompressive craniectomy in September 2019’. He opined that the applicant had ‘… significant intracerebral pathology to account for mistakes in comprehension and speech and writing’. It appears from numerous letters from Dr Dowla to Dr Hamid in 2019, that since suffering a stroke in 2009, the applicant had severe speech disturbance, of which he has partly recovered because of extensive speech therapy. The applicant also had significant memory disturbances. In October and December 2019, Dr Dowla recommended that the applicant would benefit from further speech therapy.
In a letter to Dr Taheri dated 17 April 2020, Dr Dowla recorded that on examination the applicant was alert and cooperative but had mild aphasia. In February 2020, Dr Dowla again recommended further speech therapy and opined that the applicant’s significant intracerebral pathology accounted for ‘mistakes in comprehension and speech and writing’. In July 2020, Dr Dowla noted that the applicant’s symptoms were fortunately improving.
On 1 March 2021, Dr Dowla reported to Dr Taheri that the applicant was still presenting with mild aphasia but was alert and cooperative. He reported that the applicant’s ‘headache, tinnitus and auditory hallucination has improved spontaneously’. On 22 March 2022, Dr Dowla reported that the applicant’s mild aphasia had improved.
At hearing, it was put to Dr Dowla that mild cases of brain atrophy have little impact on daily functioning. While Dr Dowla agreed in one way, he said the statement was not correct because:
… if you have a mild atrophy at the age of 60 or 70, usually it’s not a big problem, but if somebody young had a bleed and then had atrophy, it actually means there has been huge … loss and that’s why there’s an atrophy. So that means the difference between the two is enormous.
Dr Dowla said the applicant fell into this category. He said the applicant had a large bleed which ‘almost stopped him from speaking’ and he had to have surgery to remove the blood clot and that this saved his life. Dr Dowla further stated that the damage the applicant:
… suffered led to generalised atrophy... I think he probably had hypertension bleed which required evacuation. So that can lead to significant … loss and loss of function, and that function in particular in this case is speech function, including expressive function of the speech … which is comprehensive type … combination of the two.
Dr Reza Pishyar, the applicant’s treating clinical psychologist, has provided several reports in these proceedings, and attended to give evidence orally at hearing. It is plain from the evidence of Dr Pishyar that the applicant suffers from mental health issues which contribute to the applicant’s memory issues, concentration and cognitive deficit.
In an early report dated 20 August 2013, Dr Pishyar recorded a diagnosis of major depression and anxiety disorder. He recorded that the resulting symptoms of this diagnosis included:
1.Feeling of hopelessness and helplessness,
2.Low energy and feeling of tiredness and loss of motivation,
3.Insomnia and poor sleeping, difficulty to get up in the morning,
4.Poor memory and concentration,
5.Period of crying and loss of [interests],
6.Feeling of agitation and irritability and worried for his future,
7.Nightmares and recollection of intrusive thought/memory.
In an updated report dated 2 September 2021, Dr Pishyar noted that the applicant was referred to him under a mental health plan:
… in relation to his poor coping mechanism, his excessive lack of concentration and lack of rational judgement under stress and recollective traumatized memory played a significant role to refuse signing his citizenship application (as he is reporting) due to his constant flashback for what had happened to him in Iran.
He reports:
[The applicant] has been suffering from a comorbid presentation of Post-Traumatic Stress Disorder, Generalized Anxiety disorder with social fear and Major Depressive Disorder and has found it extremely difficult to overcome on [his] past and integrate into the fabric of Australian society despite the best of his efforts. The depression and PTSD are persistent, and the records indicate some minor improvement, but this has not been sustained.
His current psychological problems include:
1.Hopelessness and helplessness feeling,
2.Severe short term memory problem with limited concentration on daily given tasks,
3.Poor sleeping duration and low energy due to his lack of motivation to leave home and engaging with social life,
4.Loss of interest and feeling bored all the time,
5.Feeling of agitation and irritability,
6.Depressed mood with flat affect and social withdrawing tendency,
7.Recollection of intrusive memory,
8.Experiencing nightmares.
…
On mental state examination, he demonstrated abnormalities of attention, new learning immediate recall and short-term memory problem. The nature of the abnormalities was consistent with known cognitive abnormalities of depression and anxiety. Mr. Fatehi’s lack of awareness in terms of his orientation and his intrusive memory is in my opinion a reflection of his lack of comprehension and his lack of knowledge which is associated with his depression, PTSD, and his cognitive deficit.
In a further report dated 7 February 2022, Dr Pishyar reiterated that the applicant was referred under a mental health plan in relation to a short-term memory problem, excessive loss of concentration and lack of rational judgement under stress. Dr Pishyar related these symptoms to the applicant’s ‘past traumatized experiences in Iran’ and his stroke in 2009. It was his belief that the applicant was ‘suffering from multiple manifestations of traumatic experiences and depression, particularly exacerbated by his poor recovery’. He further believed that the applicant ‘psychological conditions have been playing a significant role in his cognitive impairment’. Dr Pishyar confirmed a diagnosis of PTSD and major clinical depression and opined that the applicant found it difficult to cope with extra stress and tension and said that at this stage, he had major concerns of the applicant having a mental relapse. He explained that the applicant was pre-occupied with his current traumatised situations and was ‘overthinking losing his chance to become Australian citizen’.
At hearing, Dr Pishyar was asked about the nature of his relationship with the applicant. This appears to have been raised because Dr Pishyar provided a reference for the applicant and because his reports contained words to the effect that the applicant’s mental illness should be taken into consideration when deciding his citizenship application.
Dr Pishyar firmly rejected the proposition put to him that he had a friendship or relationship with the applicant. His firmly stated that his relationship was of a ‘professional capacity of the patient and therapist’ and that should the applicant’s GP send the applicant to another psychologist or should the sessions set out in the current mental health plan come to an end, his connection to the applicant would end. Dr Pishyar clarified that it was his professional and clinical opinion that obtaining Australian citizenship would bring ‘lots of relief’ to the applicant. He stated that treatment can involve looking at finding some solutions to problems as a strategy to prevent further deterioration and prevent further risk.
This evidence of Dr Pishyar that it is his clinical and professional opinion that obtaining citizenship should bring the applicant relief is consistent with that contained in his reports, particularly with the evidence contained in the report dated 7 February 2022, where he stated:
Regarding chronic phase of his mental illness and his prolonged history of depression, PTSD and anxiety, it is difficult for him to cope with extra stress and tension have been caused due to his citizenship matter. The risk of having mental relapse is major concern at this stage as and requires more regular care and follow-up intervention.
The applicant has an approved National Disability Insurance Scheme (NDIS) plan which started on 9 December 2022.
Arezu Jolan, the applicant’s social worker under his current NDIS plan, provided a written statement and gave oral evidence in these proceedings. Ms Jolan has worked with the applicant for two years. In a statement dated 14 March 2023, Ms Jolan explained how she believed the applicant struggled with his memory and the concept of time. She stated that the applicant was ‘honest and transparent’ and a ‘very respectful gentleman’. She described that the applicant required daily support with ‘basically everything’. Ms Jolan said she has assisted the applicant with ‘housing, getting involved in community participation, helping with his anxiety and from time to time his panic attacks’. She said that she often finds the applicant in ‘a state of mental helplessness’ and forgets dates, times, and needs constant reminders. At hearing, Ms Jolan again explained that it was her understanding that the concept of time was unclear to the applicant.
Saghar Astaneh, the applicant’s support co-ordinator since late 2021, has provided a written statement in these proceedings and gave evidence orally at hearing. In a statement dated 13 March 2023, Ms Astaneh said the applicant does not have the concept of time and place and stated, ‘[n]ot having a good memory, not having a clear concept of time these are his main limitations that we are supporting him with’. Ms Astaneh described how the applicant is preoccupied with the issue of citizenship and flashbacks to the time in Iran when he was ‘forced to sign documents’. At hearing, Ms Astaneh reiterated that she believed the applicant does not comprehend the concept of time and place.
Mr Michael Chalouhi, occupational therapist, has provided two reports in these proceedings dated 29 August 2020 and an updated report dated 13 August 2021. While I note that the reports were commissioned for assessing the applicant’s eligibility for a NDIS plan, they are relevant when considering the applicant’s cognition and functionality.
In the report dated 29 August 2020 and the updated report dated 13 August 2021, Mr Chalouhi set out the results of the cognitive processing assessment undertaken on the applicant. It was recorded that the applicant has a moderate deficit in attention span, simple and moderate problem solving, safety and judgement and abstract reasoning. The applicant was found to have a moderate to severe deficit in foresight and planning and a severe deficit in mental flexibility and complex problem solving. As for cognitive and executive processing concerns, Mr Chalouhi described, relevantly and in summary, that the applicant had reduced attentiveness and poor recognition for priorities of wellbeing, significant memory disturbances, some confusion in relation to timelines and past events, had significant difficulty identifying lessons and key messages, reduced insight, and difficulty extracting key learning concepts which makes experiences valuable for learning and regulating behaviour in the future.
Mr Chalouhi details in both of his reports behavioural concerns. Relevantly he described:
Alireza is somewhat hyper-vigilant in avoiding triggers of previous trauma, as such experiences constant levels of heightened anxiety. Alireza becomes very involved when discussing/recounting his traumatic experiences and is difficult for others to redirect him emotionally which often leads to distress and intrusive memories and flashbacks. A primary coping mechanism has been hypervigilance and avoidance of government or army/soldier related interactions. Rather than seeing these interactions with government representatives including citizenship officials as necessary, Alireza finds these very confrontational and avoidant. Linking to his trauma, Alireza believes he again is being exploited, and is fearful of the physical and emotional consequences which has led to his current state of trauma. This has impeded his interactions for government payments including NDIS, and severely hindered the signing of documentation pertinent to officiating his citizenship in Australia. In hindsight, Alireza is challenged by the barriers of his mental health illness and its impacts.
In the report dated 29 August 2020, Mr Chalouhi concluded:
Based on discussion with [the applicant] supplemented by observations and assessments, the impacts of mental health conditions is likely to have hindered [the applicant’s] participation and compliance with all component of gaining Australian citizenship (particularly signing the documentation). This was further compounded by absence of appropriate advocates at the time, and lack of supporting evidence at the time. Although [the applicant] currently has sound insight into the impacts of his hypervigilance and participation barriers, it is reasonable to expect the strength of trauma-related avoidance has impacted the signing of citizenship documentation.
At hearing, Mr Chalouhi gave evidence about his assessment of the applicant and was questioned about his qualifications in providing evidence about the applicant’s cognitive function. Mr Chalouhi accepted that he could not formally provide a diagnosis as he was not a psychiatrist or psychologist. He confirmed that his evidence was that of an occupational therapist with a background and experience in mental health. He explained that occupational therapists could:
… make educated inferences from behaviours, patterns, client reported stuff, evidence given from support coordinators, and also the other supplementary evidence … can recognise behaviours and patterns that are akin to a diagnosis or are recognised as barriers to making decisions.
Dr Gary Banks, a clinical and forensic psychologist, performed a psychological examination and assessment of the applicant on 14 April 2021, and provided a report in these proceedings dated 21 May 2021.
In the report dated 21 May 2021, Dr Banks opined that:
… the sequelae of his stroke was relatively temporary, and given his commitment to active rehabilitation, his subsequent active lifestyle inclusive of international travel and multiple intimate relationships, would suggest he has regained the majority of any compromised functioning – both physical and cognitive.
However, when questioned at hearing whether it was his view that the effects of the stroke in 2009 were temporary and would not affect the applicant’s ability to complete a citizenship application, Dr Banks responded:
[t]o the contrary. I don’t believe I said temporary … I would certainly defer to neurologists to identify long standing or enduring neurological change … My input is that a behavioural and functional level - so, I’m steps on from that, so I’m not giving any cavil with what has been identified from the Japanese Hospital, nor possible longstanding effects.
Dr Banks further opined in his report that the applicant’s:
... ‘mental health is not thought to have had a significant detrimental effect on his ability to recall and convey information. The possibility that the current concerns are more likely attributable to his reluctance to be fully transparent about his history remains open.
However, at hearing, Dr Banks was asked if there was anything during the assessment that led him to believe that the applicant was making up those other details of his life, Dr Banks responded:
No. To the contrary. It was more that he was simply not providing them, whether that was because he couldn’t recall the information offhand or was simply not wanting to disclose the information, I’ve got to leave open.
Consideration
There is much made of the applicant’s non-disclosure and inaccuracies in information he provided about his time in Evin prison and the details surrounding his arrest and detainment. The respondent contends that given the traumatic nature of the applicant’s confinement in Evin prison, he would be expected to know the dates he was there and the circumstances leading to his confinement.
It is plain that the applicant’s time in Evin prison was very traumatic. He was subjected to torture. At hearing the applicant said, ‘Evin was a very awful place and it is true that memory is taking part of my brain which is occupying some part of my brain’. At hearing, the applicant was asked about specifics of Evin prison, including the number of prisoners. The applicant gave evidence with specificity on this point and stated that he would ‘remember the director - the prison director, Pishwar - until the day I die’.
However, the applicant appeared to be unable to recall the details about whether he was arrested or convicted, the specifics arising from the anti-Islamic material he brought into Iran, other than stating that his father came and paid for his release.
It also appears that the applicant’s understanding of ‘conviction/imprisonment’ excluded his politically-related charges/penalties. At hearing, the applicant said:
… the thing is that my conviction was because of my beliefs only, it was not because I had committed a crime or I had, you know, like, stolen anything from anybody. It was just purely because of my beliefs…
… I didn’t think that it was important to mention, sorry, it was important to mention. I didn’t see really – I didn’t see that it was really important information. It was not a crime; it was only because of my beliefs.
The Tribunal has previously found that the applicant was owed protection as a refugee and has a history of trauma. It is unfair to expect the applicant to be held to the same standard as others and to have the capacity to recall specifics and provide testimony of such events. It appears that the applicant remembers events that affected him the most in emotional and physical terms but not the time sequence. I do not accept that this means he is not telling the truth or deliberately trying to withhold information. I find it reasonable given the applicant’s history of trauma and dealings with government officials in Iran, for him to be fearful or embarrassed about revealing information about his past to the Department and government officials in Australia. This was evident at hearing when the applicant expressed that he ‘was petrified by the gossips and rumours that providing a positive response to this question may result in automatic refusal of my application…’
In addition to the applicant’s traumatic history, he also suffers from significant medical conditions.
I consider the bulk of the medical evidence persuasive in that the applicant’s mental health and the resulting effects of a stroke he suffered in 2009, severely impacted his ability to interact with government officials, to remember dates and times, and affected his cognitive ability to accurately complete the forms and provide consistent information during the process required for his visitor visa, protection visa and citizenship applications.
Considering the available medical evidence, I prefer the evidence of the applicant’s treating neurologist, psychologist, support co-ordinator and support workers over that of Dr Banks. Dr Banks only attended on the applicant on one occasion and deferred to the opinion of a neurologist when questioned about any possible long-standing affects suffered by the applicant because of his stoke in 2009. Dr Bank’s evidence is completely at odds with the findings of the applicant’s treating doctor, psychologist, neurologist, social worker and disability support co-ordinator, the terms of the applicants NDIS plan, his receipt of DSP, and the supports he currently requires and has required for the past two years.
I do note that since February 2019, the applicant has successfully completed hundreds of hours of language and numeracy training in Australia, has obtained a taxi license in Queensland, and passed the Citizenship test on 11 April 2017. There are no further details available regarding the requirements of this study, particularly whether the study required the applicant to recall information such as dates and times, or whether he was required to engage in settings or situations which would have triggered his anxiety from past trauma.
Other than the intentional non-disclosure in the applicant’s visitor visa applications of his time in Evin prison (addressed above), I am not satisfied that the applicant deliberately provided false information to the Department in his visitor, protection, and citizenship applications and during the subsequent evaluation process. Nor am I satisfied that he deliberately provided false information to this Tribunal.
Additional Issues/Factors
The respondent has pointed out that the medical notes of Dr Pishyar record that the applicant reported using cannabis between 2013 and 2019 and submits that this undermines the applicant’s claim that he is of enduring moral qualities. There is very limited force to this submission. There is no evidence that the applicant was charged or convicted of any offences related to cannabis possession or use, nor is there any evidence that the applicant currently consumes cannabis.
There is no suggestion of any other concerns as to the applicant’s character. His health care providers all speak well of the applicant and view him to be polite, co-operative, and respectful. There is no evidence of the applicant having any dealing or interactions with the Police or law enforcement in Australia.
The applicant has also provided several character references including from his local pastor and friends, Hassan Altamimi, Yavar Samiee Zafarghandi and Mohammad Ali Pur Robati. They all speak very positively of the applicant’s character.
Decision
The decision under review is set aside and remitted with the direction that the applicant is of good character and satisfies paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth).
I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak
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Associate
Dated: 6 June 2023
Date(s) of hearing: 15 September 2021, 24 - 25 February 2022, 27 - 28 March 2023 Date final submissions received: 28 April 2023 Counsel for the Applicant: Mr R Chia Solicitor for the Applicant: Ms K Wrigley, Legal Aid NSW Counsel for the Respondent: Mr B Kaplan Solicitors for the Respondent: Mr C Burke, Mr M Sheedy and Ms E Maker, Sparke Helmore
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Remedies
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Statutory Construction
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