Razeghi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2021] AATA 3113

Razeghi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 3113 (30 July 2021)

Division:GENERAL DIVISION

File Number(s):      2020/6092

Re:Hamid Razeghi

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Emeritus Professor P A Fairall, Senior Member

Date:30 July 2021

Date of written reasons:        1 September 2021

Place:Sydney

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal decides that the decision under review, being the decision of the Respondent dated 24 September 2020 is set aside and is remitted for reconsideration with a direction that the Applicant is of good character under paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth).

...............................[SGD].........................................

Emeritus Professor P A Fairall, Senior Member

CATCHWORDS

CITIZENSHIP – application for citizenship by conferral – good character requirement –single offence – stalking or intimidation with intent to cause fear – plea of guilty – 15-month good behaviour bond – denial of guilt – decision set aside and remitted.

LEGISLATION

Australian Citizenship Act 2007 (Cth) s 21

Crimes (Sentencing Procedure) Act 1999 (NSW) s 10

CASES

Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326

Teklehaymanot and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 3055

SECONDARY MATERIALS

Australian Citizenship Policy Statement

Citizenship Procedural Instruction (CPI) 15 - Assessing good character under the Citizenship Act 2007

REASONS FOR DECISION

Emeritus Professor P A Fairall, Senior Member

1 September 2021

1. On 14 March 2018, the Applicant applied for citizenship by conferral.

2. On 24 September 2020, a delegate of the Respondent (Delegate) refused the application for conferral of Australian citizenship on the basis that the Applicant was not a person of good character as required under paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act).[1] The decision was based on the Applicant's criminal convictions.

   [1] T2/13.

3. On 2 October 2020, the Applicant applied for review of the Delegate’s decision before the Administrative Appeals Tribunal (the Tribunal).

4. The Tribunal heard the matter on 30 July 2021 and was assisted by a Persian interpreter. The Applicant was represented by a migration agent.

5. Having heard from the Applicant, five witnesses on his behalf, the Applicant’s representative, and Ms Sarah Hardie for the Respondent, I gave a brief oral decision. 

6. I was satisfied that the Applicant was a person of good character under paragraph 21(2)(h) of the Act, based on the substantial character evidence available. Apart from a single instance of offending, he had no criminal convictions, had made considerable efforts to improve himself and integrate into the community, had been employed full time in a business he co-owned until COVID-19 (his coffee shop has now closed) and was involved in some church activities. He was a popular member of his community.

7. With regard to the single instance of offending, I noted that the Parramatta District Court had on appeal from the Magistrate’s Court found that the Applicant was guilty of stalk, intimidate with intent to cause fear, but had decided to dismiss the matter without recording a conviction. I also noted that the transcript of the District Court was not in evidence, had not been returned under summons, and that the only sworn evidence before the Tribunal as to what happened that night was contained in the Applicant’s oral testimony.  I admitted the New South Wales Police Facts Sheet (Police Facts) which provided a basis for cross-examination of the Applicant by Ms Hardie.

8. In reaching my conclusion on the merits, I emphasised that domestic violence could not condoned in any way, but was satisfied that the present instance was at the bottom of the scale, as found by the District Court.

9. Having heard from the Applicant, various character witnesses on his behalf, and from both party’s representatives, I decided that the decision of the Respondent dated 24 September 2020 should be set aside and remitted for reconsideration with a direction that the Applicant is of good character under paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth).

10. On 5 August 2021, the Respondent requested written reasons for my decision, which I now provide.

    LEGISLATION AND POLICY FRAMEWORK

11. It is well established that for the purposes of assessing ‘good character’ under the Act, the words refer to the ‘enduring moral qualities of a person’.[2]

    [2] Irving v Minister for Immigration, Local Government and Ethic Affairs (1996] 68 FCR 422, at 431-432.

12. I note the Citizenship Procedural Instruction (CPI) 15 - Assessing good character under the Citizenship Act 2007 (the Instruction), which states, under the heading ’Procedural Instruction’:

    Good character refers to the enduring moral qualities of a person. A person who is of good character is likely to uphold and obey the laws of Australia and the other commitments made when making the Pledge of commitment should they be approved to become an Australian citizen.

    This Instruction provides a framework for assessing an applicant under the ‘good character’ provisions. Decision-makers must:

    ·consider any character issues that arise on the facts of a case;

    ·consider all relevant information;

    ·guard against bias;

    ·be mindful that the requirement to be of ‘good character’ does not mean that a person must be of ‘perfect character’;

    ·be mindful that a person who may not have been of good character can become a person of good character;

    ·continue to assess the character issues until satisfied, on a reasoned basis, having regard to the available evidence that an applicant is, or is not, of good character.

    In most cases, it would not be appropriate to automatically conclude that a person is not of good character based on the fact that the person has been convicted of an offence. A full assessment is required.

    The policy set out in this Instruction should not be applied rigidly or inflexibly. It is important to remember that, where a discretionary power is conferred in the Act, it should be exercised bearing in mind the facts of any particular case. This Instruction provides guidance to decision-makers but it cannot fetter any statutory discretion conferred by the Act.

    [emphasis added]

13. Paragraph 4.3 of the Instruction provides:

    4.3 What is good character

    Definition

    The term ‘good character’ is not defined in the Act. The Federal Court (FC) and the Administrative Appeals Tribunal (the AAT) have used the ordinary meaning of the words, and made reference to dictionary definitions. Most cases have adopted the definition from the Full FC judgment in Irving v Minister for Immigration, Local Government and Ethnic Affairs ((1996) 68 FCR 422; 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 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… 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… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.

    The phrase ‘enduring moral qualities’ encompasses the following concepts:

    ·characteristics which have endured 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.

    The good character requirement necessitates consideration of an applicant viewed in a holistic way; that is, all aspects of his/her life may be relevant to consideration of character.

    A decision-maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout the time the applicant held a visa, and during the time their citizenship application was lodged and processed.

    Given the significance of the grant of Australian citizenship, the assessment of the applicant’s character is an important component in the Minister’s decision to approve or refuse the applicant’s citizenship application.

    [emphasis added]

14. Paragraph 4.4 of the Instruction provides:

    4.4 An applicant who is of good character

    An applicant who is a person of good character would generally be expected to exhibit the following characteristics. Application of these principles should be considered in light of the facts of the particular case.

    As a general proposition, a person who is of good character would:

    ·respect and abide by the law in Australia and other countries;

    ·be honest and financially responsible (for example, pay tax, not be in dishonest receipt of public funds pay debts to the Commonwealth);

    ·not practise deception or fraud in dealings with the Australian Government, or other organisations, for example

    ointentionally providing false personal information (such as fraudulent work experience or qualification documents) or

    oother material deception during visa and citizenship applications;

    oevading immigration control at the border or living unlawfully in the community after their visa ceased, or assisting others to do so, or involvement in people smuggling or trafficking;

    oknowingly entering into a bogus marriage or pretending to be a de facto partner of another person;

    oconcealing criminal convictions;

    ofraud against the Commonwealth such as tax fraud or Centrelink fraud;

    ogiving false names and/or addresses to police;

    ·not be the subject of any extradition order or other international arrest warrant;

    ·not be violent, involved in illegal drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example multiple and/or repeated instances of recklessness exhibited by negligent or drink driving, excessive speeding or driving without a licence);

    ·not associate with persons who are involved in anti-social or criminal behaviour, or who do not uphold and obey the laws of Australia, such as organisations involved in war crimes, criminal gangs, OMCGs or youth gangs;

    ·not have committed, or been involved in, or associated with war crimes, crimes against humanity or genocide

    ·not be involved in terrorist organisations or acts of terrorism overseas or in Australia.

    Application of these principles should be considered in the light of the facts of the particular case and should not be applied rigidly or inflexibly. The above examples are intended only to provide broad guidance to decision-makers about the types of behaviours which might support an adverse conclusion about a person’s character. Ultimately a decision-maker must exercise any statutory discretion bearing in mind the facts of any particular case.

    It is also necessary to consider any other information that is relevant to a person’s character such as information provided by an applicant about his/her family life; for example, raising children, being in a stable home environment, being responsibly employed, paying taxes, any community work undertaken, and any other matter that is relevant to an assessment of character in the circumstances of a particular case. 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 a number of 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.

15. Paragraph 4.7 of the Instruction sets out a non-exhaustive range of factors that a decision-maker may take into account in determining whether a person is of good character. It is stressed that the decision-maker must take into account all the relevant facts of the case.

16. Paragraph 4.7 also refers to the assessment of the relative seriousness of the offending.

    Assessing the relative seriousness of the offence

    ·Consider the length of the sentence. Longer sentences carry more weight on a person’s character.

    ·Are there any ongoing obligations such as a good behaviour bond? …

    ·Carefully consider sentencing remarks, as they give an insight into the nature of the offence and the character of the applicant at the time of sentencing. Decision-makers can obtain sentencing information by contacting the Criminal Registrar of the relevant court. Parole reports may also contain useful information…

    ·It may be appropriate to consider whether the offending behaviour is the subject of any Government initiatives on particular types of behaviour, for example domestic violence, OMCGs and youth gangs.

    Were there victims of the offence? Were they children, the elderly or the disabled or others who were reliant on, or placed trust in, the applicant? [emphasis added].

    CRIMINAL HISTORY

17. The New South Wales Criminal History Report[3] contains the following entries pertaining to the Applicant:

    ·     19 October 2017 (offence date 23 June 2017)

    Stalking or intimidation with intent to cause fear of physical or mental harm (domestic), (on appeal). Proved without conviction. Released on entering into bond to be of good behaviour for 15-month (Crimes (Sentencing Procedure) Act 1999 (NSW), section 10).

    ·     19 October 2017 (offence date 7 August 2017):

    Contravention of prohibition or restriction in AVO (domestic)
    Proved without conviction. No penalty imposed

    ·     21 May 2013 (offence date 17 March 2013):

    Never licenced person driving vehicle on road (first offence)
    

    [3] ST3/51-3; T17/185.

    Proved without conviction. No penalty imposed

18. I note that his supervision terminated on 15 December 2017.[4]

    [4] ST2/39.

    THE DELEGATE’S DECISION

19. The Decision Record states:

    I consider Stalk/intimidate intend fear physical etc harm (domestic)-T2. I find that the offence you committed to be at the high range of seriousness as it is contrary to Australian societal values. Given the nature and level of seriousness of the offence you committed, this weighs against you being of good character. I give this factor considerable weight in my assessment of whether you are of good character.

    In response to the Department’s letter, I note that you have not provided any evidence of rehabilitation; either court mandated or by your own initiatives. I give this factor no weight, other than noting you have not re-offended in the short period since you were found guilty.

    In Prasad and Minister for Immigration and Ethnic Affairs ([1994] AATA 326 at [7]), the AAT said:

    ‘a decision about whether a person is of good character requires the consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.’

    In Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, Deputy President Breen discussed the role of the character requirement in a citizenship application (at [8]):

    “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.”

    I note that your appeal was heard in court in October 2017, and the 15 months bond period would be ceased in January 2019 which is around one and half years ago; I am not satisfied this is sufficient time to demonstrate a pattern of good behaviour.[5]

    [5] T2/22.

20. In varying the sentence, the Parramatta District Court was required to consider various factors, including:

    (a) the person's character, antecedents, age, health and mental condition,

    (b) the trivial nature of the offence,

    (c) the extenuating circumstances in which the offence was committed,

    (d) any other matter that the court thinks proper to consider.[6]

    [6] Crimes (Sentencing Procedure) Act 1999 (NSW) s 10(3).

21. The Applicant gave evidence to the Tribunal as follows. In the very early hours of the morning on 23 June 2017, his ex-partner asked him to come over. She was scared because the weather was tempestuous. When he arrived a few hours later the place was in darkness and no-one answered the door. He recognised a utility vehicle as belonging to one of his best friends and called his number.  This caused a light to flicker in the granny flat, and he knew she was with him. He lost his temper and yelled and swore at the parties.

22. The Police Facts state that he inflicted some damage by scratching a key across his friend’s vehicle.[7] The Applicant did not admit to doing so.[8] I note that he was not charged with criminal damage.

    [7] ST1/16.

    [8] Transcript of Proceedings No. 2020/6092 (‘Transcript’) at 23.

23. The Applicant has consistently denied the accuracy of the statement made in the Police Facts. [9]

    [9] ST2/34.

24. The Applicant said that he wished that he had just walked away. He said that he was wronged by the criminal charges.  Because of them he had lost his security licence and his livelihood. He said that he had a growing appreciation of the Australian attitude to women and the protection of women and children.[10]

    [10] Transcript at 35-36.

25. During his examination I asked the Applicant about his understanding of the concept of ‘controlling behaviour’ in a relationship context:[11]

    SENIOR MEMBER:  Thanks, Madam Interpreter.  And can I ask this, Mr Razeghi, do you have an understanding of the concept of controlling behaviour within the context of family violence?

    INTERPRETER:  Member, I have to tell you that given the cultural background, although we have been like a family educated but it is quite different in understanding that type of attitude as considered family violence, luckily through my like education, like therapy, anger management and all my contacts with the specialist and professionals in that regard, I came to know that - how that type of - some sort of attitude that it is considered quite normal in another society like my society, it is considered violence and indeed, now I know it is.

    And because as I told you I am from Iran, I am not from New Zealand, that there are family there (indistinct) about these type of things and culturally, we have got this dominancy or being dominant over the other sex.  But now I learn to - I came to learn about it, this was when we - the case, it’s all about equal rights and yes, equality between all genders.

    And yes, and given my own experience I was exposed to the law and consequently exposed to (indistinct) how to manage the situation in a healthy way.

    [11] Ibid at 37.

    CHARACTER WITNESSES

1. Tribunal was provided with a number of character references, including:

1	Letter of Support from Ms Nooshin Nikoiee	27 August 2020
2	Letter of Support from Mr John Leonard Fry	31 October 2020
3	Letter of Support from Dr Reza Pishyar	10 November 2020
4	Letter of Support from Mr Tony Abboud	13 November 2020
5	Letter of Support from Ms Maria Johnson	16 November 2020
6	Letter of Support from Pastor Ian J. Bartley	16 November 2020
7	Letter of Support from Clr. Sarkis Yedelian	4 February 2021
8	Letter of Support from Irane Kiani Association	1 March 2021
9	Letter of Support from Dr Reza Pishyar	15 April 2021
10	Letter of Support from Pastor Lawrence	25 July 2021
11	Letter of Support from Mr Hadi Talebi	29 July 2021
12	Letter of Support from Ms Mitra Chatrsefid Ardani	29 July 2021
13	Letter of Support from Ms Susan Madoline Hoskins	29 July 2021
14	Letter of Support from Pastor Thomas Pelham Sapsford	29 July 2021

1. The Tribunal also received oral evidence from five character witnesses.

   Witness 1: Ms Nooshin Nikoiee

2. Ms Noushin Nikoiee, life and business partner, provided a statement which was read to the Tribunal:

   Dear Sir/Madam. 

   My name is Nooshin Nikoiee.  I’m currently residing at 84 Neerim Road, Castle Cove, New South Wales.  I’m a mortgage broker, licensed real estate agent, and currently running a café with my boyfriend, Mr Hamid Razeghi.  I have met Hamid Razeghi in my office back in August 2017, and I have been in a relationship with him since September 2017.  During my three years relationship I have found Hamid extremely loving, caring, gentle, and very respectful towards me and my family.  He is always available, and attentive to my needs.  He shows interest in my life.  But, at the same time, gives me space to pursue my own dreams, and have my own life.  I and Hamid established a café called Supplement Plus Café, trading as the Persian Garden Café, in December 2018, and have been working as business partners since then.  Hamid is very hardworking, self-motivated with goals that he works hard to achieve.  He’s a man of principle, and has firm principles (indistinct).  I am aware about the false accusations, made against him, by his ex-girlfriend, and the court’s verdict placed him on 15 months good behaviour bond about two years ago.  I’m also aware that, since then, he proved to the Australian government that he was innocent, and he maintained his good character with no issue with anyone whatsoever.  I am very happy to have Hamid as my partner.  We are still spending time together, before we make our final decision, and hopefully move into a share home, with each other, in a near future.  I have all the confidence in the world, on him, as an upstanding, sincere, and morally a good person.  I wish him all the very best, in future, and support him for becoming an Australian citizen, as he deserves it as a decent human and gentleman, hardworking, caring, and reliable person.  Please do not hesitate to contact me if I could be of further assistance to you, for assessing his character, by using my contact details here.  Yours sincerely.[12]

   [12] Ibid at 44. 

3. Under examination she said that she and the Applicant had a café together, and that she knew him very well.[13] She found him very respectful towards friends and had not seen any disrespectful attitudes towards her customers, family or children.[14]

   [13] Ibid at 41.

   [14] Ibid.

4. She thought the accusations against him were false.  When asked to explain what she meant, she said that since the incident, the Applicant’s ex-girlfriend had come to the café, and she would approach the Applicant every time.[15]  In her view, this proved that the accusation could not be correct.

   [15] Ibid at 45.

5. She said she knew that he was accused of stalk/intimidate, but ‘because [they] had her as a regular customer and [she approached] him every time’, she didn’t believe that a ‘correct accusation’ had been made.[16]

   [16] Ibid.

6. She said that she had been in the relationship with him and she personally did not see the conviction as correct, knowing him and his character.[17]

   [17] Ibid.

7. She did not know the Applicant at the time of the offending.

   Witness 2: Ms Tamkim Hakim 

8. Ms Hakim works with the Applicant. She said she had known the Applicant for a year and a half.  She works at the Community Migrant Resource Centre and works with refugees. In her capacity she connected with newly arrived refugees.  She builds capacity of leaders and potential leaders. She said that she had identified the Applicant as a potential leader in the community. She said that the Applicant connected her with newly arrived refugees in the area and was basically the mediator between the two groups. She said that she found him to be very respectful, very compassionate and very resourceful. He was able to assist with catering free of cost because of the connections he had with businesses and the respect that people had for him. She gave several examples where the Applicant had been resourceful and helpful in solving settlement issues and connecting new migrants with help. She found him to be very helpful, resourceful, compassionate and empathetic. He had a diploma in community services and understood the issues involved. He had the educational background to be able to connect with the community.[18]

   [18] Ibid at 49.

9. When cross-examined by the Respondent, Ms Hakim said that she was aware of the incident on 24 June 2017, and that he had explained the reasons behind it, including the fact that his father was terminally ill and he had lost his mother in the preceding year.[19] She was aware that he was on a 15-month good behaviour.

   [19] Ibid at 50.

10. She was asked whether she knew him at the time of the offending and replied:

    Can I just point out that - I mean, whatever happened in the past, I’m only basing everything from what I have seen, and observed.  After he helped, with everything, he actually mentioned his situation, after I had received all the assistance, and everything.  So, I did not know about his past.  I’m actually basing everything from my observation, and his behaviour toward me, and the community.  And it’s just purely very professional.[20]

    [20] Ibid at 51.

    Witness 3: Mr Hadi Talebi 

11. Mr Talebi provided a letter which was read to the Tribunal:

    I, Hadi Talebi, of 21/58 (indistinct) road, North Ryde, age of 38, employed full-time by DEX(?) Australia as an IT sales consultant, state:

    (1) I’ve been a friend with Hamid Razeghi for over nine years.  Our friendship has developed over the years, and I’m very close with him.

    (2) I know Hamid to be a kind, compassionate, and caring person, over all these years. 

    (3) In about June 2017 I became aware of some troubles in Hamid’s relationship with his partner, which escalated into a court case against Hamid later in the same year.

    (4) I was also aware Hamid’s dad was sick, and was hospitalised in Iran.  I was in close contact with Hamid during this time, to provide him with emotional support, to the best of my ability, as I could see he was under immense emotional distress.  I could see that his emotional distress was having a huge impact on his health.  And he was seeking professional medical treatment. 

    I hear, repeatedly, from Hamid during this time, how sorry and regretful he was about the recent events in his life.  I’ve witnessed Hamid gathered himself from his tough time, and would present himself in the appeal court, which resulted in changing the verdict in his favour.

    Hamid’s commitments to self-improvement and making himself a better person, after this event, is undeniable to me.  In late 2018, Hamid successfully set up and launched a café business, being 24B Church Street, Ryde, with his new partner.

    In my view, Hamid is not just a good friend to have around, he is a kind-hearted and valuable member for community, who has a lot more to offer to all of us.

    This statement, made my me, according, accurately sets out the evidence that I will be prepared, if necessary, to give in court, as a witness.  This statement is true to the best of my knowledge, and belief.[21]

    [21] Ibid at 54-55.

12. In evidence, Mr Talebi said:

    So, I know Hamid, as I stated in my letter, to be - the sum of quality being kind, compassionate, and caring person.  And that’s was the main reason that our friendship grow.  And I know Hamid to be, I guess, adapting - adapting the caring culture which comes from his background as being a sport person, and caring for his members of his sports community, which he did showcase - that, to me, time after time.  And that - I guess that was the main reason our friendship actually grow, over the years.  One thing I would add: for the past four or five years, the commitment that Hamid has, to improving himself and making himself a better, is absolutely undeniable to me.  I’ve been involved, I guess, very close with Hamid.  The number of books he’s studied.  The number of seminars and live training he attend.  To actually make himself a better person.  And, in every situation that I’ve been, around Hamid, Hamid always have something to offer, to the peoples around him.[22]

    [22] Ibid at 56.

13. Mr Talebi was aware of the conduct that led up to the charge and had a reasonable understanding of the outcome of the court proceedings.

    Witness 4: Ms Susan Madoline Hoskins   

14. Ms Hoskins is an acquaintance from Church.[23]  She provided a character reference in the following terms:

    [23] Ibid at 64.

    Re Mr Hamid Razeghi: 29 July 2021

    Character Reference

    From: Susan Madoline Hoskins.

    To Whom it may concern:

    Dear Sirs,

    I have known Hamid for almost eighteen months. I came to know him through the context of the church which I attend and which he also attends often (C3 Church Ryde), and also through the conversations and interactions we have had at his coffee shop near our church throughout that time.

    My impression of Hamid is that he is a very kind, generous and respectful person. And of what I have seen of his interactions with others, I would say exactly the same thing.

    In our conversations about family, friends and life’s circumstances he has demonstrated compassion and care about others, and my observation of him is that he is a diligent and hard working man.

    I happily wish him every good success in whatever endeavours he

    undertakes including his application for Australian citizenship.

    Kind regards,

    Susan Hoskins.

15. Ms Hoskins was asked whether she was aware of the reasons for the cancellation of his application.  She said that she knew that he came from Iran.  She was asked about her knowledge of the conviction.  She said that he may have told her about this in the past, but she wasn’t aware of the details, and didn’t feel qualified to comment about it.  She understood that there was a previous relationship.  She found it ‘very believable’ that he had been ‘falsely [accused]’.[24] This accusation had created great complexity and difficulty going forward.

    [24] Ibid at 65.

16. She said that she found it believable that the accusations were false from what she had seen of the Applicant and his personality. Her letter was in the context that she had come to know him from church. The following is a summary of her evidence:[25]

    [25] Ibid at 66-67.

    WITNESS:

    …

    as Hamid has sort of explained very briefly to me about that situation or that occurrence, it would seem that - which can be the case with people that there’s misunderstandings …

    it appears, from what he has said to me, that it seems to be quite, you know, a misunderstanding …

    I would understand if the young lady in question, if she didn’t really realise what her actions - the ramifications of her actions would be because sometimes people just don’t realise that, you know, all they need to do is perhaps if they make a complaint to the police, or if they - you know, if they try and get some sort of, particularly if they make a complaint to the police, often they don’t realise the ramifications of what that can do to that person’s life and how it can affect it. 

    …

    And from what I understand, Hamid has repaired any misunderstandings with that lady, and she seems to be, from what he has said, she seems to be quite supportive of him again and she now understands that there were very big and strong implications of any action that she’s taken and it has created a real complexity and difficult for his life going forward. 

    …

    SENIOR MEMBER: Are you aware of the behaviour that led up the offence?

    WITNESS: Some of it… I’m not sure what the full behaviour would be but my understanding is that there was a friendship in place, that the two individuals, Hamid and his girlfriend at that time were not living in the same residence and so, therefore, he would at times go over to her home, she might come over to his home and - but on a particular occasion he went over to her home and, as he might have normally done, knocked on the door and then she gave an account that there was nobody there, he was about to walk off and heard or saw something in the apartment that indicated to him that there was another person there …

    my understanding is that there was a gentleman - as it turned out, there was a gentleman at the apartment - yes, and so, but I don’t know really much beyond that…

    …

    SENIOR MEMBER: Are you aware that he was found guilty and subject to a 15 month good behaviour bond?

    WITNESS: I was aware that there was an outcome that was difficult for him

    Witness 5: Ms Mitra Chatrsefid Ardani

17. Ms Ardani provided a character reference contained in a letter dated 29 July 2021:

    To whom it may concern,

    I Mitra Chatrsefid Ardani aged 40, Manager of a hairdressing salon and Student at University of Newcastle.

    I have known Mr Hamid Razeghi for six years as a friend. Hamid has been through some unfair circumstances in 2017.  He has seen the loss of both of his parents the past few years, which has put him through a great challenging time.

    I can vouch for him and say that he has been a person of morals and integrity over the time we have known each other.

    I can further state that Hamid has been immensely dedicated to his family and work, and a loving person towards friends too.

    He has been known to be helpful, trustworthy and charitable, and is a much-loved person by all.

18. She said that she was aware of the offending, but from her point of view, the Applicant was in an unfair situation.[26] She said that she met his ex-girlfriend and knew that she was not right for him.[27] She did not want to say anything bad about her, but it was a very unfair situation from her point of view.[28] She said that he was very regretful, and she thought it was very unfair that he had been suspended from work and had his application for citizenship declined.[29]  She said that he was a beautiful person and all his family loved him.[30]

    [26] Ibid at 70.

    [27] Ibid.

    [28] Ibid.

    [29] Ibid.

    [30] Ibid at 71.

19. The Applicant also provided a reference from Thomas Pelham Sapsford, Pastor.

    CONSIDERATION

20. The Applicant and the complainant lived together for about 12 months from about April 2016 until about March 2017.[31]  Sometime thereafter she moved out and into a granny flat at another residence.[32] They continued to see one another occasionally. The incident in question occurred within approximately three months of her moving out to live in the granny flat.[33]

    [31] Ibid at 22.

    [32] Ibid.

    [33] Ibid.

21. The Applicant disputes some of the statements contained in the Police Facts.[34]  He says that he did not threaten the victim or her new boyfriend with violence. He did not admit to any damage to the victim’s new boyfriend’s car. He was moved to appeal the original convictions because he felt a sense of injustice that he had been convicted at all.

    [34] ST2/34.

22. The District Court of New South Wales found the offence proved although it decided not to record a conviction. I proceed on the footing that the Applicant committed an offence against a young woman with whom he had been in an intimate personal relationship, and this must be regarded as serious. The Tribunal has emphasised repeatedly that domestic violence offences will be viewed as very serious. However, the fact that the District Court on appeal varied the sentence, so as to remove a requirement for community supervision in favour of a good behaviour bond, is highly significant.

23. Unfortunately, the Tribunal was not provided with the transcript of the proceedings in the District Court. In the upshot, the Tribunal is left with a single instance of stalk, intimidate, where the District Court saw fit to dispose of his appeal by finding that he was guilty of the offence, but that a conviction should not be recorded. As a layperson, it is perhaps understandable that the Applicant should be puzzled by what this means, given that the supposedly non-recorded conviction has been the subject of close examination in these proceedings. But it cannot be otherwise stated than that this was a low-level offence that did not merit the recording of a conviction.

24. The Tribunal is left with a single instance in what is otherwise an unblemished record. The Applicant admits that he lost his temper.[35] He says that he was overly emotional at the time.[36] His mother had recently passed away and his father was critically ill (and has since passed away).[37] 

    [35] Transcript at 28.

    [36] Ibid at 18.

    [37] Ibid at 18-19.

25. Perhaps the strongest ground against the Applicant is that he lacks insight into his own conduct, and that his attitude towards woman still leaves something to be desired. In terms of the incident in question, the record shows, and this is confirmed by the evidence he gave during the hearing, that he regards the complainant as at least partly responsible for the situation on the night in question, and considered that he had suffered disproportionately because of the incident, which he sees as essentially an emotional display under circumstances of some duress. But he considered that she was guilty of a breach of trust.

26. The Applicant expressed regret about continuing to engage with the complainant after she moved out.

    I didn’t sort of act wisely that to put an end to that relationship, I shouldn’t have gone to her door on that night and I shouldn’t have been concerned that her safety is at risk and because of the phone call that she made and especially at the time it clashed with my dad’s experiencing terminal disease, I wish that I had spent - allocated that time instead of continuing on that relationship for my father, be there for my father, yes, I feel remorseful that I stayed in that relationship.[38]

    [38] Ibid at 25.

27. He thought there was some difference between Iran and Australia with regard to relationships between men and women,[39] but had spoken about this issue with new arrivals, and said that the ‘the government is putting to quite a good attention to that matter which is quite important for the wellbeing and the healthy society’.[40] I am satisfied that the Applicant understands the community’s intolerance of any degree of violence or antagonism towards women and children.

    [39] Ibid at 29.

    [40] Ibid at 36.

28. Ms Hardie contends that insufficient time has elapsed since the incident to find that the Applicant is now of good character.[41] This is a matter of proportion. A person with a long criminal record or a single terrible offence may wait for a very long time to rehabilitate their good character. A person with a light criminal record may have a quicker journey. There is no formula, and it is for the Tribunal to consider this matter along with everything else in determining the correct and preferable decision.

    [41] Ibid at 81

29. I refer to a recent comment of Senior Member Dr Fenwick in Teklehaymanot and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 3055, at [52], a case which bears some factual similarity to the present case. The Tribunal noted that this submission about insufficient effluxion of time would have stronger force if the offending was of a more serious nature.

1. As to the Applicant’s degree of remorse or contrition, it should be said that the Applicant is a proud man, and it is not easy to admit mistakes. It is a journey. Hopefully, the Applicant will come to understand that displays of extreme emotion are damaging and dangerous, and in the context of a domestic relationship, also criminal. There is a simple reason why the sanction of the criminal law has been so firmly invoked in recent years. Domestic violence causes significant harm. It leaves shattered lives. It kills. Displays of jealous rage often cross the boundary into dangerous and life-threatening behaviour to which the police, and other family members, all too often bear witness.

2. While the Applicant may not have a perfect understanding of this issue, or see in his own behaviour any sign of a slippery slope, I am satisfied that he has made serious and meaningful efforts to understand the community’s expectations in relation to domestic violence. His decency was commented upon by a number of the female character witnesses.

3. The Applicant provided a number of character references. They were well received by the Tribunal. Five individuals gave evidence on his behalf, including his present partner. He should receive due recognition for the valuable community work that he performs in the migrant community. He has a new and stable relationship and there is only praise for his social interactions.

4. Under those circumstances, and in light of the very positive character evidence received from the five witnesses, together with other statements such as the reference from Pastor Sapsford, I was satisfied that the Applicant is of good character.

   CONCLUSION

5. I therefore find that the Applicant satisfies the good character requirements under paragraph 21(2)(h) of the Act.

   DECISION

6. For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal decides that the decision under review, being the decision of the Respondent dated 24 September 2020 is set aside and is remitted for reconsideration with a direction that the Applicant is of good character under 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 Emeritus Professor P A Fairall, Senior Member

.............................[SGD]...........................................

Associate

Dated: 1 September 2021

Date(s) of hearing:	30 July 2021
Advocate for the Applicant:	Mr K Momeni, Click Australia Pty Ltd
Solicitor for the Respondent:	Ms S Hardie, HWL Ebsworth Lawyers