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

Teklehaymanot and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 3055 (27 August 2021)
Division:GENERAL DIVISION
File Number: 2020/4269
Re:Achenafi Teklehaymanot
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date:27 August 2021
Place:Melbourne

The Tribunal sets aside the decision of the delegate of the Minister dated 30 June 2020 and remits the matter for reconsideration in accordance with the direction that the Applicant is of good character and meets the requirement of s 21(2)(h) of the Australian Citizenship Act 2007.
...[sgd]....................................................................
Dr Stewart Fenwick, Senior Member
Catchwords
CITIZENSHIP – refusal to approve Australian citizenship by conferral – whether the applicant is of good character – relevance of other alleged criminal behaviour – evidence of rehabilitation – whether sufficient time has elapsed since offending – decision set aside and remitted
Legislation
Australian Citizenship Act 2007
Cases
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354
Secondary Materials
Department of Immigration and Border Protection, Citizenship Procedural Instructions – Assessing Good Character under the Citizenship Act (CPI no 15, 26 February 2021)
REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
27 August 2021
BACKGROUND

Mr Teklehaymanot applied to the Tribunal on 8 July 2020 for review of a decision of a delegate of the Respondent on 30 June 2020 to refuse the grant of citizenship by conferral on the basis that the Applicant was not of good character.
The Applicant was born in Ethiopia and arrived in Australia in 2008 at the age of thirty. He was granted a permanent spouse visa in 2011. In 2014 the Applicant was the victim of a violent assault in the course of his work as a courier driver. He suffered head injuries and developed Post-Traumatic Stress Disorder (PTSD), anxiety and insomnia, and has been unfit for work since the incident.
On 11 October 2018, the Applicant pleaded guilty in the Melbourne Country Court to one charge of stalking. The offending took place between 15 June 2017 and 10 July 2017, during which time the Applicant telephoned his former partner 126 times.
This plea arose from an appeal lodged by the Applicant against the conviction and sentence on two of three charges at the Dandenong Magistrates Court, 31 May 2018. These two charges were withdrawn and struck out at the appeal stage. The matter proceeded solely as an appeal against sentence, and no conviction was recorded against the stalking charge.
The Applicant was sentenced to an adjourned undertaking to be of good behaviour for 12 months that included a condition he complete a Men’s Behaviour Change Program. Despite an issue with completion of the program, the Applicant has been found to have satisfied this condition. He made his application for citizenship on 25 July 2019.
The Applicant lodged a Statement of Facts, Issues and Contentions (SFIC) and a Statutory Declaration (Exhibit A1), including the following attachments:
(a)report of Dr Minaakshi Tolat, consulting psychiatrist, dated 31 July 2017 (attachment 1);
(b)Order of Judge Wraight, County Court, dated 11 October 2018 (attachment 2, T7);
(c)transcripts of County Court appeal, and subsequent mention on 11 September 2019 (attachment 3);
(d)letter from Relationships Australia, dated 26 August 2019 (attachment 4, T5);
(e)Order of Judge Wraight, County Court, dated 11 September 2019 (attachment 5);
(f)email from Applicant’s lawyer regarding adjourned undertaking and attaching report of Simon Jacobs, consultant psychologist, dated 4 October 2019 (attachment 6); and
(g)email from Chambers of Judge Wraight, dated 18 September 2020 (attachment 7).
The Respondent lodged T documents, supplementary T documents (‘ST documents’), and a SFIC.
The Applicant’s representative raised an objection at the commencement of the hearing to the relevance of the ST documents, which comprised material obtained under summons from Victoria Police. It was submitted that the summary of matters considered proven formed the agreed summary in the Applicant’s criminal proceeding, and the appeal in the County Court was considered a de novo proceeding.
The Respondent’s representative submitted that the material, including that relating to alleged conduct related to charges that were withdrawn, was relevant, and the issue was of the weight attributed to the material. The decision of HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 (‘HZCP’) was cited in support.
After a brief adjournment, I determined that the ST material would be received for the purposes of the hearing, with the exception of page 7 which is part of an incident summary report from the Victoria Police LEAP database. I do not consider that the authority cited assisted the Respondent in the way advanced, as I understand that case to stand for the proposition that the Tribunal cannot impugn the essential factual findings underpinning a conviction or sentence (HZCP at [63]). I also note that there are other references in the ST documents to the withdrawn charges, and the question of the Applicant’s conduct referred to in the record in question was dealt with in cross-examination.
LEGISLATION
A person may apply to have citizenship conferred under s 21 of the Australian Citizenship Act 2007 (the Act) and the Minister must approve or refuse an application pursuant to s 24(1) of the Act. Under s 24(1A) approval must not be given if a person is not eligible in accordance with requirements also found in s 21.
The relevant eligibility requirement in this matter is contained in s 21(2)(h) of the Act, which provides that at the time a decision to confer citizenship is made, the person applying must be of good character. The term ‘good character’ is not defined.
Policy guidance is provided for decision makers in Citizenship Procedural Instruction 15, ‘Assessing Good Character under the Citizenship Act’ (CPI 15). At paragraph 3.1 the policy states:
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.
…
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.
At paragraph 3.3 of CPI 15, the decision of Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, at 431–432, is cited as the source of the concept of ‘enduring moral qualities’. This phrase is then described as encompassing 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 requirement is said to necessitate consideration of an applicant ‘viewed in a holistic way’.
Certain general propositions as to good character are set out at paragraph 4 of CPI 15, which include that a person would: respect and abide by the law; be honest and truthful; not be violent; and, not cause harm to others (for example through multiple and/or repeated instances of recklessness). It is said to be necessary to consider any other information relevant to a person’s character, with examples including raising children, being in a stable home environment and paying taxes.
At paragraph 12.1 of CPI 15, the phrasing of the sub-heading suggests that there is an expectation that applicants disclose any criminal offending. The sub-heading at paragraph 12.2 indicates that decision-makers should consider the relative seriousness of the offence.
Further guidance is provided at paragraph 14 of CPI 15 regarding the weighing of any offending, including considering mitigating circumstances arising following the offence. Factors include showing responsibility and remorse for offending conduct, extenuating circumstances, and any other evidence the person may be of good character. In the case of a serious offence, CPI 15 states that it may be that a significant amount of time should pass before a decision-maker could be satisfied as to a person’s good character.
EVIDENCE
In his evidence, the Applicant confirmed that he was assaulted in 2014 in the course of his work as a courier of pharmaceutical supplies. He stated that he developed PTSD and had been treated by Dr Minaakshi Tolat, psychiatrist, since 2015. During the COVID-19 pandemic he has been seeing a general practitioner for prescriptions, and he finds it hard to wake.
The Applicant stated that since 2014 he has been on WorkCover and Centrelink payments, and following a court decision he is on weekly compensation payments. He confirmed that he had struggled in the past with maintaining accommodation and slept in his car for a period. He confirmed that, as described in the report of Dr Tolat (Exhibit A1, attachment 1), he had struggled with a re-emergence of mental health symptoms in 2017.
With respect to the offending against his former girlfriend, the Applicant accepted that it involved 126 contacts and that she felt harassed and distressed. He stated that their relationship ended because she ‘slept with’ his best friend and that he wanted to talk to her. The Applicant stated that he was concerned that a cousin knew that the Applicant and his girlfriend were engaged, and that a ceremony was planned. He called her many times because he was upset, and she would not tell the family about the breakup.
The Applicant stated that he did not accept the allegations put to him in the Magistrates’ Court, but had pleaded guilty in the County Court. This was his only offence, and he had not been in trouble with the police in Australia or Ethiopia.
Asked about a letter of reference from Dr Yusuf (T5), the Applicant explained that he has known the doctor since 2009, and that he knows him well. The doctor knew about the relationship issues, knows about the Applicant’s behaviour, and has provided the Applicant with support. The Applicant confirmed that Dr Yusuf knew about the offending and the good behaviour bond.
The Applicant confirmed that he had missed sessions of his Men’s Behaviour Change Program in 2018–2019 due to issues with money and accommodation. He confirmed that he had attended with Simon Jacobs to discuss relationships and ‘life’, and that Mr Jacobs had provided a letter for the Applicant’s appearance at the Magistrates’ Court (Exhibit A1, attachment 7). The Applicant stated he had not been in trouble since then.
The Applicant also confirmed that he held a spouse visa and had work experience in a nursing home as well as courier driving for three and a half years.
In cross-examination, the Applicant confirmed that his relationship broke up in May 2017. He also confirmed that he had been subject to an intervention order. Following an objection from his representative about questions relating to the circumstances, the Applicant stated that he was unable to explain, and did not understand, the intervention order. He did confirm that he had not seen his former partner since that time, and understood he had had to stay 200m away from her place, and had complied with the order.
The Applicant stated again that he had wished to speak with his former girlfriend and did not want her family to hate him. He wanted to tell them the truth, she did not, and this is why he called her many times.
The Applicant denied that he was jealous and controlling. He stated that he was human, and jealous because of the circumstances of their breakup, but was not controlling in the relationship. Asked why he did not stop after, for example, 100 calls, the Applicant responded that his former partner answered some calls. The Applicant accepted that nevertheless he had continued to call, and that he should not have.
The Applicant also denied certain specific suggestions such as that he attempted to go to his former partner’s house, and he denied threatening her. He did agree that calling people many times in that manner was against Australian law, although he stated that he did not know this at the time.
I asked the Applicant what he had learned from attending the Men’s Behaviour Change Program. The Applicant responded that he learned a lot after talking with a group of men, sharing with each other about mistakes, and accepting their wrongdoing.
SUBMISSIONS
On the Applicant’s behalf, it was submitted that both the decision of the delegate under review and the Respondent’s SFIC misconceived the circumstances of the offending, having taken into account irrelevant matters. The only relevant circumstances were those contained in the summary adopted in the County Court. The offending was objectively minor, but the Applicant understood its criminal nature.
Unusually, the Tribunal has evidence of the Applicant’s mental state prior to and following the offending, and his mental health had been taken into account by the sentencing judge and was highly relevant to the holistic assessment process. The Applicant had complied with the intervention order, his offending was an isolated incident, and was now several years ago. It was submitted that the passage of time from the offending, July 2017, not the compliance with the good behaviour bond, was the relevant consideration.
In relation to the bond, it was submitted, again, that the delegate and the Respondent’s SFIC were mistaken as to the issue of compliance. Rather than there being failure to comply, this was a rare instance, as noted by the judge, of the Applicant voluntarily seeking to ensure that there was a means of complying with the condition of the sentence. The Applicant’s conduct in engaging with a psychologist to ensure compliance should therefore be considered impeccable. This demonstrates deference to the law, honesty and integrity.
It was submitted that the evidence indicated that the Applicant was engaging well with treatment, this bodes well for rehabilitation and is to his credit. Further, while the delegate gave no weight to the reference from Dr Yusuf, this referee was aware of the Applicant’s circumstances, and signed the application for citizenship.
It was also submitted that in a holistic assessment, consideration should be given to the Applicant’s status as a victim of crime. He has suffered the consequences of the assault since 2014, and a higher standard should not be applied to him. The Applicant’s history is highly relevant to the character assessment. While it was asserted that limited supporting material had been provided, the report of Dr Tolat should be considered relevant, since he is aware of the Applicant’s personal circumstances.
The Respondent’s representative submitted that the Tribunal is required to look at the circumstances of the Applicant’s offending and cited the decision of Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354, particularly as cited in HZCP at [25]. That is, that the nature and circumstances of offending may be examined not for the purpose of assessing the propriety of a conviction but to assess the nature and gravity of the criminal conduct. It was again noted that it remains a question of weight among the considerations overall.
It was submitted that some sympathy for the Applicant was appropriate, given his mental health condition, but this was no excuse for his conduct.
The Respondent’s representative submitted that the contentions raised previously in relation to the Applicant’s apparent failure to engage with the conditions of his bond were no longer pressed, in light of the evidence now available. This engagement is a relevant consideration as is the Applicant’s further counselling.
It was submitted that, in the context of the test outlined in CPI 15, the offence of stalking weighs heavily against the Applicant. The standard involved was not unnecessarily high, and in this case the Applicant took some time in evidence, it was submitted, to acknowledge his numerous calls were inappropriate.
It was contended that rehabilitation factors were less relevant to the assessment process and that further time was required before the Tribunal could be satisfied that the Applicant is of good character. The Applicant’s behaviour toward his former partner was unacceptable, and the Applicant’s representative objected again to an attempt to reference the material excluded from the ST documents.
It was also submitted that there was scant material provided by way of character references, and no direct evidence from Dr Yusuf. There is, essentially, an assertion only of good character from the Applicant alone.
CONSIDERATION
From the transcript of the County Court appeal (Exhibit A1, attachment 3) I note the following remarks of the sentencing judge:
(a)stalking is a ‘concerning’ offence, but unfortunately all too common in relationship breakdowns;
(b)the conduct in the Applicant’s case is an aberration in relation to his character;
(c)this was not a case involving violence;
(d)the Applicant had contributed to the community in Australia; and
(e)there was no prior offending.
I also note from the same source that the summary of offending was read out in Court and it notes that the victim felt harassed and distressed. There is no reference in the agreed summary to any other conduct by the Applicant.
I consider that this material adequately explains the relatively slight sentencing outcome, which was that, with no conviction recorded, the Applicant was required as a condition of his good behaviour bond to complete a Men’s Behaviour Change Program.
I was slightly troubled by the Applicant’s evidence at the hearing with respect to the circumstances of his relationship breakdown. There is an element of shifting responsibility to his former girlfriend, and the particular circumstance raised by him does not feature, that I can identify, in any other material. However, particularly in light of the remarks of the sentencing judge, I do not give this evidence any particular weight in respect of assessing the nature and significance of his offending. I note that the Applicant accepted in evidence his wrongdoing, which is also reinforced by his plea of guilty.
Accordingly, I consider that the Applicant’s offending should be considered to be relatively low-level offending.
I accept that the Applicant’s experience of mental health was considered by the sentencing judge, although it does not appear to be explicitly referenced in the summing up remarks.
The Respondent’s submissions in closing with respect to the excluded material from the ST documents provided a more nuanced account of the way the Tribunal may consider the circumstances of the offending. However, the material speaks to conduct relating to charges that were withdrawn and struck out, and, as noted, the sentencing judge explicitly acknowledged there was no violence involved. Furthermore, the Applicant in evidence denied both violence and controlling behaviour.
As noted by the Applicant’s representative at the hearing, I accept from the transcript of the sentencing hearing that the intervention order was consented to with no admissions. I accept the Applicant’s evidence in relation to the intervention order, which would appear to only reinforce the remarks of the sentencing judge. That is, it is of some relevance that there was such an order, but I accept the Applicant did understand its terms and complied.
I understand from the material and oral evidence that the Applicant made the effort to bring himself before the sentencing judge to seek to vary the adjourned undertaking in order to comply with the condition. No further order was, in any event, made by the judge, but I accept that the Applicant continued to receive mental health treatment despite his inability to complete the prescribed program (Exhibit A1, attachment 6). I also accept that his failure to complete that program was due to circumstances somewhat beyond his control.

The Applicant has clearly made some considerable effort, despite his otherwise difficult personal circumstances over recent years, to comply with the conditions of his adjourned undertaking. I consider this to be a particularly positive factor in assessing his character.
The Respondent’s contention about the relative absence of character references is accurate and relevant. While it is also true that the sole reference of Dr Yusuf (T5) was buttressed only by the Applicant’s evidence, I consider it reasonable to afford it some weight.
I also take into account the fact that four years have passed since the offending behaviour and the Applicant has conducted himself blamelessly in that time. I consider that the passage of time is of greater importance in offending of a more serious nature, and I give this factor limited weight.
In summary, the issue of character arose in this matter due to the Applicant’s single instance of offending. The fact that no conviction was recorded is significant, and I have set out the observations of the sentencing judge. The effort made to seek to have the adjourned undertaking extended and the Applicant’s commitment to ongoing therapeutic treatment are commendable.
I am satisfied that on a holistic assessment, the Applicant should be considered to be of good character, and I find accordingly.
DECISION
For the reasons given, the Tribunal sets aside the decision of the delegate of the Minister dated 30 June 2020 and remits it for reconsideration in accordance with the direction that the Applicant is of good character and meets the requirement of s 21(2)(h) of the Australian Citizenship Act 2007.

I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of
Dr Stewart Fenwick, Senior Member

...[sgd]....................................................................
Associate
Dated: 27 August 2021

Date of hearing: 23 July 2021

Counsel for the Applicant: David Carolan

Advocate for the Respondent: Christopher Orchard

Solicitors for the Respondent: Sparke Helmore Lawyers

[2021] AATA 3055

27 August 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Remedies

Date of hearing:	23 July 2021
Counsel for the Applicant:	David Carolan
Advocate for the Respondent:	Christopher Orchard
Solicitors for the Respondent:	Sparke Helmore Lawyers