Kazemy and Minister for Home Affairs (Citizenship)

[2018] AATA 4728

Kazemy and Minister for Home Affairs (Citizenship) [2018] AATA 4728 (14 November 2018)

Division:GENERAL DIVISION

File Number(s):      2018/1439

Re:Masoud Kazemy

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:14 November 2018

Date of written reasons:        4 January 2019

Place:Sydney

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the reviewable decision.

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Mrs J C Kelly, Senior Member

CATCHWORDS

CITIZENSHIP – refusal of citizenship – delegate not satisfied that Applicant was of good character as required by section 21(2)(h) of the Australian Citizenship Act 2007 (Cth) – Applicant convicted of “behave in offensive manner in a public place or school” –  Applicant’s oral evidence inconsistent with contemporaneous police evidence - Tribunal affirms reviewable decision

LEGISLATION

Australian Citizenship Act 2007 (Cth) s 21(2)(h)

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

4 January 2019

1. Mr Kazemy applied for citizenship on 5 July 2016. On 13 March 2018, a delegate of the Minister for Home Affairs (the Respondent) refused his application because the delegate was not satisfied that Mr Kazemy was of good character as required by section 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act). The reason for that conclusion was Mr Kazemy’s conviction for the offence of "behave in offensive manner in a public place or school", and the decision-maker’s view is that Mr Kazemy had not been frank about the fact that he had committed that offence.

2. It is that criterion in the Act that I have to consider. The Respondent took into account in particular the evidence of the police officers that appears in the T documents that are before the Tribunal. Essentially, that evidence was that Mr Kazemy was masturbating while looking at a pornographic website when they approached him on 13 February 2014 in a railway station waiting room.

3. Mr Kazemy has provided letters of support as well as a statement. Most of the people who provided the letters did not refer to Mr Kazemy’s conviction for the offence. Two of the letter writers state that they are aware of the offence. I did not accept Mr Kazemy’s invitation to telephone the writers of the letters to check that he had told them about the offence.

4. Mr Delaney gave the account that Mr Kazemy told him that he had been rubbing a rash in his groin area. Dr Duncan refers to the offence but does not provide details about it.

5. The Respondent relies on the offence that Mr Kazemy has committed and said that it is contrary to law, is behaviour that is not in accordance with Australian community standards and does not demonstrate that Mr Kazemy conforms with the rules and values of Australian society.

6. The Respondent also says that not enough time has elapsed since the two year good behaviour bond came to an end, that is about two and a half years ago, to show that Mr Kazemy is of good character, particularly because he continued to deny the facts that gave rise to the conviction.

7. The Respondent says that Mr Kazemy has not shown any remorse or contrition, regret, or otherwise any insight into his offence.

8. Mr Kazemy did disclose details of the offence in the citizenship application, but claimed that the CCTV footage of the events showed that he had done nothing: see the bottom seven lines of large handwriting at the top right hand corner of page 22 of the T documents which Mr Kazemy acknowledged was his writing. I viewed the footage before and during the hearing at Mr Kazemy’s request.

9. Mr McLaren, who represented the Respondent, stressed that on the evidence during the hearing, Mr Kazemy was asking the Tribunal to find that he did not commit the offence. Mr McLaren submitted that the case law says that it is an extremely high threshold to have a Tribunal go behind a criminal conviction and the evidence as a whole, particularly the police statements, does not discharge that onus. Finally, Mr McLaren submitted that while the CCTV footage does not really take things much further, it certainly does not exonerate Mr Kazemy as he suggests.

10. I had an extensive discussion with Mr Kazemy about his statement in his citizenship application and his position at the hearing that he acknowledged that he had a conviction but denied that he had done the acts to which he pleaded guilty. He said that back then he did not have an interpreter and did not know what he was saying. He also pointed to a mistake in the police documents that stated that he had spent 12 hours on the train rather than six hours and such mistakes happen.

11. Mr Kazemy described the stress he had suffered as a consequence of the conviction and worry about his future, particularly about his wife whom he married on 21 November 2017 while overseas. He said that she had been waiting for him for a long time and her family were pressing her to divorce him. He understands that he cannot apply for a spouse visa unless he has citizenship. It was not in dispute that Mr Kazemy has permanent residence. Mr McLaren sought to assist the Tribunal and Mr Kazemy in relation to whether he could as a permanent resident, apply for a spouse visa, but the matter was unresolved. I encouraged Mr Kazemy to check with the Department whether his understanding is correct or whether as a permanent resident holding his current visa, he can apply for a spouse visa for his wife.

12. I accept that when Mr Kazemy pleaded guilty in 2014 he had no idea of the possible consequence in relation to citizenship. I also accept that a lawyer advised him that as it was his first offence, if he pleaded guilty he would not be fined or go to gaol and would get a good behaviour bond, which is what happened.

13. Mr Kazemy asked the Tribunal for forgiveness and to be given another chance. He said that a sinner can change. I pointed out to Mr Kazemy that that position was inconsistent with his claim that he had not done the act to which he had pleaded guilty. I also said that my role was not to forgive him, but to decide whether I was satisfied that he was a person of good character.

14. I emphasised to Mr Kazemy that he can reapply for citizenship if I found that I was not satisfied that he was of good character, and keep reapplying. His current visa expires on 24 October 2022.

15. On the evidence, I accept the police evidence that Mr Kazemy was in the railway waiting room, doing what the police officers said he was doing, and had his phone open at a pornographic site. I do not accept Mr Kazemy’s claim that he did not do the act to which he pleaded guilty. That leads me to the question of whether I consider he is a person of good character as of the day of my decision.

16. The act at the railway waiting room is the only thing Mr Kazemy has done wrong that is on the record. I do not agree that the CCTV footage vindicates him. I accept that the footage does not show "exactly" what he was doing but what can be observed is behaviour which is consistent with the police account to this extent: he undid his belt and his evidence about exactly what he did with his trousers was not very persuasive. One version seemed to be that his trousers were so loose they fell down without the belt on them. Another version was that because they had a very low crotch, when he sat down, they slipped down. I do not think those two versions of the evidence were consistent. I do not accept the evidence Mr Kazemy gave during the hearing was correct.

17. The issue is, as of the day of my decision, am I satisfied that Mr Kazemy is a person of good character.

18. I have taken into account Mr Kazemy's written statement and his oral evidence, and the letters of support that he has provided. I note, for example, the letter from Mr Delaney from the Multicultural Council of Wagga Wagga Inc dated 5 April 2018. Mr Kazemy left Wagga Wagga in 2017 for Sydney. Mr Delaney wrote:

    Staff supported Masoud with employment, accommodation, general support and immigration although Masoud was fairly independent in the community. Staff always found Masoud a model permanent resident as he assisted staff with communication with other … clients including those who were homeless or struggling. Staff were informed of an incident in Sydney several years ago … after Masoud's account we believe a likely misinterpretation of his actions resulted. At that time Masoud was struggling with accommodation as [sic] had a rash in the groin region as [sic] was rubbing it and was not playing with himself as charged. One issue staff have identified is that due to the complexity of the legal system young men like Masoud did not gain the legal representation and these offences/discretions were not dealt with properly.

19. Mr Delaney goes on:

    This was never an issue for staff as from getting to know Masoud he was of outstanding character helping many in the community. Masoud was naturally embarrassed in informing us of the incident but we saw the lighter side of this and hope that this incident does not disadvantage Masoud. Masouds period of residence in Wagga Wagga was incident free displaying no anti-social behaviour or tendencies as its (sic) been the opposite, in that he has been kind, helpful and respectful to all he meets.

20. He refers positively to Mr Kazemy's employment in Wagga Wagga:

    Masoud has positive vocational goals and is enthusiastic and very appreciable [sic] to be granted residency in Australia and ultimately Citizenship.

21. In other words it is a very supportive statement.

22. There is also a letter from Dr Geraldine Duncan who "saw him fortnightly to monthly during 2016/2017". She notes that he was able to move from homelessness to having a job.

23. In relation to the criminal conviction, she notes that he had discussed it with her, was very distressed and he was only scratching himself with no ill intent. She says that he was unaware of our laws at the time. The Tribunal would note that that does not actually assist Mr Kazemy because such behaviour is not consistent with Australian values in any event.

24. There is also a letter from Mr James Lukere dated 3 August 2018. He has known Mr Kazemy for two years. He said that Mr Kazemy was engaging well in preparing for employment. He notes that he was working in a stable job and that Mr Kazemy’s aim was to settle in Australia and contribute positively to the Australian system. He also noted that Mr Kazemy had recently gone overseas to get married so he could settle with his wife in Australia. Mr Lukere does not refer to the incident in the criminal offence.

25. There is a reference from the manager of Mr Kazemy's employer as of 1 August 2018. The writer says:

    During his time with us our customers have commented on his very happy, cheerful attitude and eagerness to strive for excellence.

26. And there is again no reference to the criminal conviction in that letter.

27. There is also a reference from the director of the Cheesecake Shop, Wagga Wagga dated 3 November 2017 that states:

    …Masoud Kazemi [sic] has been working at the Cheesecake Shop Wagga Wagga … from 15/08/2016 to 15/04/2017.

28. In conclusion the writer says:

    Masoud has always demonstrated to be a professional, well-mannered and dedicated employee. Based upon his performance and my understanding of the position for which he is applying, I believe that he would perform very well.

29. I am conscious of Mr Kazemy's understandable wish to bring his wife to Australia. I do not know whether or not he would be entitled to apply for a spouse visa based on his current visa. The Tribunal does not consider that that is a matter that goes to whether or not Mr Kazemy is of good character. Mr Kazemy's evidence at the hearing was inconsistent with the contemporaneous evidence of the police which I accept.

30. Unfortunately, on the evidence before the Tribunal, I am not satisfied that Mr Kazemy is a person of good character. I repeat that Mr Kazemy can reapply for citizenship.

31. The Tribunal affirms the reviewable decision.

I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

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Associate

Dated: 4 January 2019

Date(s) of hearing:	14 November 2018
Applicant:	In person
Solicitors for the Respondent:	D McLaren, Minter Ellison