CKLL and Minister for Immigration and Border Protection (Citizenship)

CKLL and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 6871 (24 July 2019)
Division:GENERAL DIVISION
File Number(s): 2017/6005
Re:CKLL
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Member R Maguire
Date:24 July 2019
Place:Brisbane

The Tribunal affirms the decision under review.
................................[SGN]........................................
Member R Maguire
CATCHWORDS
CITIZENSHIP – citizenship revoked – serious criminal offences - public interest criterion – decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth)
Australian Citizenship Act 1948 (Cth)
Criminal Code 1899 (Qld)
Migration Act 1958 (Cth)
REASONS FOR DECISION
Member R Maguire
24 July 2019
INTRODUCTION

This is an application by CKLL for the review of a decision[1] by the Minister on 14 August 2017 to revoke his Australian citizenship under section 34(2)(b)(ii) of the Australian Citizenship Act 2007 (Cth) (“the Act”). The nub of the decision to revoke his citizenship rests in a finding by the Minister that it was contrary to the public interest for the applicant to continue to be an Australian citizen. The Minister made the decision, in consequence of the applicant’s convictions for serious criminal offences, including one count of maintaining a sexual relationship with a child and eleven (11) counts of indecently treating children under 12.[2]
[1] Ex 1 PT 10 p 43.
[2] Ex 1 PT 10 pp 44-49.
For the reasons below, this Tribunal affirms the decision under review.
BACKGROUND
The applicant was born in Auckland, New Zealand in 1963 and remains a New Zealand citizen.[3]
[3] Ex 2 p 3.
The applicant immigrated to Australia in October 1989, and was granted Australian citizenship by conferral under the Australian Citizenship Act 1948 (Cth) (“the 1948 Act”) on 11 September 1996, but continued to hold New Zealand citizenship.[4]
[4] Ex 1 PT 9 p 35.
A person who became an Australian citizen under a provision in Division 2 of Part III of the 1948 Act is taken, on and from the commencement of relevant provisions in the Act, to be an Australian citizen under Subdivision B of Division 2 of Part 2 of the Act.[5]
[5] Item 2(2) in Part 1 of Schedule 3 of Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth).
On 14 March 2003, the applicant pleaded guilty in the District Court of Queensland in Brisbane before His Honour Noud DCJ to:
·one count of maintaining a sexual relationship with a child under 12 between 1 August 1991 and 13 December 1991; and
· eleven counts of indecent treatment of a child under 16.[6]
[6] Ex 1 PT 6 pp 19-25.
At the time of these offences, the applicant was sharing a house with his brother, and his brother’s daughter, as well as the brother’s girlfriend, and her son and daughter. The complainants were the brother’s daughter and the girlfriend’s son. Both children were aged ten years.[7]
[7] Ex 2 “Attachment 2” Dr Young report.
Count 1 had been the subject of a complaint to police on 13 December 1991 by the male complainant’s mother. At the time the applicant expressed concern that he would not be allowed to travel to New Zealand if charges were pressed. After speaking with the police and her son, the complainant’s mother decided not to proceed with the complaint, and police discontinued the investigation. A fresh complaint was laid in 2002. Seven acts of indecent dealing were particularised, but the complainants both stated that the offending occurred on other occasions, but could not remember specific instances.[8]
[8] Ex 7 p 1.
The offences involved the applicant touching the male complainant, and on several occasions pushing the applicant’s erection between the complainant’s buttocks for a couple of seconds. The applicant also made the complainant masturbate him, before masturbating himself to ejaculation. Other instances included; pressuring the complainant to expose his penis to the applicant; spreading the applicant’s buttocks; and on one occasion licking the male complainant’s anus, and encouraging the children to touch each other’s genitals. The applicant also pushed his erect penis into the girl’s lower back and began fondling her breasts.[9]
[9] Ex 7 p 4.
The applicant’s counsel at sentencing described the offending as “low grade” but the sentencing judge commented “I do not regard it in that way at all”,[10] and went on to say “I think it was very serious and it extended over the period that I indicated.”[11] His Honour noted that there was no penetration, violence, intimidation or threats, or force, and activity stopped when objection was made, before observing:
“Nevertheless, the children, now adults, have been damaged, if I can use that term, by what occurred more than 10 years ago, and I have had regard to their victim impact statements, exhibits 3 and 4. “[12]
[10] Ex 1 PT 6 p 20.
[11] Ex 1 PT 6 p 21.
[12] Ex 1 PT 6 p 21.
His Honour noted that the applicant had been cooperative with police when questioned in 1991, and that this cooperation had extended to the present, and that had the matter been dealt with at that time, the applicant could have served his sentence by the time of actual sentencing.[13]
[13] Ex 1 PT 6 p 22.
His Honour referred to the family upheaval that the complainants had suffered, and said:
I note from their victim impact statements. It was extremely disruptive, this sort of conduct, and I appreciate that the community, of course is very concerned about it.[14]
[14] Ex 1 PT 6 p 22.
His Honour accepted a report by a Dr Young, a Psychiatrist, over criticism by the Crown Prosecutor. The applicant had told the psychiatrist that he – the applicant – was bisexual, and that his sexual feelings were towards adults, not children. In a reference to the psychiatrist’s report, His Honour said:
You have never said that you felt any interest in seeking favours of adolescents or children and have never had fantasies about them, and the psychiatrist says that he does not believe that you will reoffend.[15]
[15] Ex 1 PT 6 p 23.
His Honour sentenced the applicant to a head sentence of three and a half years imprisonment in relation to count 1, and two years imprisonment in respect of each of the other offences, all terms to be served concurrently, and suspended after serving 12 months imprisonment.[16]
[16] Ex 1 PT 6 p 25.
On 2 March 2017, the Department of Immigration and Border Protection wrote to the applicant advising him of the possible revocation of his citizenship and inviting him to provide information and comment.[17] The letter stated in part:[18]
If your Australian citizenship was to be revoked and you are in Australia when this happens, you would become the holder of an ex-citizen visa by operation of law. This visa allows a person to remain permanently in Australia, but does not allow a person to re-enter Australia should they depart. In these circumstances, you will need to apply for and be granted a visa with re-entry rights.
[17] Ex 1 T 6 p 13.
[18] Ex. 1 PT 6 p 14.
On 15 March 2017, the applicant responded to the Department saying that he had surrendered his New Zealand passport when he became an Australian, and that he did not hold citizenship of any other country.[19] He also advised the Department that he would be absent from Australia between 29 July 2017 and 11 September 2017, as he was taking his elderly mother to her country of birth, The Netherlands.
[19] Ex. 1 PT 7 p 27.
On 5 April 2017, the Department wrote back to the applicant requesting documentary evidence that he had renounced his New Zealand citizenship, alternatively, the Department offered to confirm this with his consent.[20] The applicant verbally consented to the Department pursuing the question of his citizenship with the New Zealand Government, and it was confirmed that the applicant continued to hold New Zealand citizenship.[21]
[20] Ex 1 T 8 p 33.
[21] Ex 1 T 9 p 35.
On 14 August 2017, the Minister for Immigration and Border Protection personally decided to revoke the applicant’s citizenship under section 34(2) of the Act.[22] It is clear from the Minister’s Statement of Reasons, that the Minister made the revocation in the expectation that the applicant would be on shore at the time, and receive an ex-citizen visa which would have minimal impact on his close relationships.[23] However, this was not the case, as the applicant was outside Australia at the time, as he had previously advised the Department that he would be.
[22] Ex 1 PT 10 p 43.
[23] Ex 1 PT 10 pp 47-48, par. 25.
The applicant received notice of the decision by letter dated 19 September 2017[24] following his return from the Netherlands, at which time he was refused entry, detained, and deported to New Zealand.
[24] Ex 1 PT 10 p 39.
On 3 October 2017, the applicant made this application[25] to the Tribunal under section 52(1)(f) of the Act.
[25] Ex. 1 T 2 p 3.
The application was heard on 23 May 2018, by a Senior Member who has since become incapacitated and unable to deliver a decision. The application was reconstituted to this Member of the Tribunal. In the light of the time which had passed since the hearing date, the parties were invited to provide further submissions if they so desired.
Further submissions were made by both parties, and the Tribunal has proceeded to consider and determine the application in the light of those submissions and all other evidence already before the Tribunal.
LEGISLATIVE FRAMEWORK
The Minister’s decision in this case was made under section 34(2)(b)(ii) of the Act.
Section 34 of the Act relevantly provides:
…..
(2) The Minister may, by writing, revoke a person’s Australian citizenship if:
(a) the person is an Australian citizen under Subdivision B of Division 2 (including because of the operation of section 32);
and
(b) any of the following apply:
(i) the person has been convicted of an offence against section 50 of this Act, or section 137.1 or 137.2 of the Criminal Code, in relation to the person’s application to become and Australian citizen;
(ii) the person has, at any time after making the application to become an Australian citizen, been convicted of a serious offence within the meaning of subsection (5);
(iii) the person obtained the Minister’s approval to become an Australian citizen as a result of migration-related fraud within the meaning of subsection (6);
(iv) the person obtained the Minister’s approval to become an Australian citizen as a result of third party fraud within the meaning of subsection (8); and
(c) the Minister is satisfied that it would be contrary to the public interest for the person to be an Australian citizen.
………….
Serious offence
(5) For the purposes of this section, a person has been convicted of a serious offence if:
(a) the person has been convicted of an offence against an Australian law or a foreign law, for which the person has been sentenced to death, or to a serious prison sentence; and
(b)the person committed the offence at any time before the person became an Australian citizen.
The term “serious prison sentence” means a sentence of imprisonment for a period of at least 12 months.[26]
[26] Section 3 of the Act.
CONSIDERATION
Before the Tribunal, it was not contended that the applicant did not fall under section 34(2)(a) and (b) of the Act. The only debate was whether, having regard to the circumstances of the case, and the psychiatric and psychological assessments, the test imposed by section 34(2)(c) namely that it is contrary to the public interest for the applicant to be an Australian citizen, is satisfied.
The Tribunal received a copy of the applicant’s certificate of citizenship[27] granted on 11 September 1996. Based on this evidence which the Tribunal accepts that the applicant became an Australian citizen under Division 2 of Part III of the 1948 Act, and was taken to be an Australian citizen under Subdivision B of Division 2 of Part 2 of the Act[28] for the purposes of section 34(2)(a) of the Act immediately prior to the making of the decision under review.
[27] Ex 8.
[28] Item 2(2) in Part 1 of Schedule 3 of Australian Citizenship (Transitionals and Consequentials) Act 2007.
The Tribunal had before it a statutory declaration[29] by the applicant in which he declared that he had been convicted of multiple child sexual offences on

14 March 2003, and sentenced to three and a half years imprisonment, to be suspended after 12 months. The Tribunal also had before it[30] a copy of the transcript of proceedings with remarks made by Noud DCJ when sentencing the applicant to three and a half years imprisonment in respect of count one, and two years imprisonment in respect of each of the other offences, all terms to be served concurrently, and to be suspended after twelve months. The Tribunal accepts this evidence, and in reliance on it, the Tribunal finds that the applicant was convicted of a serious offence for the purposes of section 34(2)(b)(ii) of the Act.[31]
[29] Ex 2. Para 23.
[30] Ex1 PT 6 p 19-25.
[31] See also item 6(3) in Part 1 of Schedule 3 of Australian Citizenship (Transitionals and Consequentials) Act 2007.
There was evidence[32] before the Tribunal that immediately prior to the decision under review, the applicant was a citizen of New Zealand. No assertion has been made that this has ceased to be the case since the making of the decision under review. The Tribunal accepts this evidence and finds that the applicant continues to be a citizen of New Zealand, and section 34(3)(b) therefore does not arise in considering this application.
[32] Ex 1 T9 p 35.
The applicant’s counsel contended that the public interest test is not met, and relied upon the finding of the sentencing judge that the applicant was unlikely to re-offend, the report of the psychiatrist, Dr Young upon which this finding was founded, and the assessment of Dr Clarke, a clinical psychologist, that the applicant’s “risk of sexual re-offending is assessed as low and is now comparable to those that have never committed a sexual offence,” and the fact that the applicant has not re-offended in any way.[33] The applicant’s counsel further contended that the decision to revoke the applicant’s citizenship was a proportionate exercise of the power, owing to the applicant’s absence from Australia at the time of decision, the applicant had not reverted to an ex-citizen visa which would have allowed him to remain in, but not to re-enter Australia, should he choose to depart.
[33] Applicant’s counsel’s opening remarks dated 23 May 2018 at para. 6.
The applicant lived in Australia from 1989 until September 2017, and was a citizen for 21 of those years. The applicant has strong ties to the Australian community as one would expect after 28 years of residence. The applicant’s aged mother resides in a retirement home in Australia, and he has expressed a desire to care for her. The applicant’s mother has been significantly depressed, and increasingly socially isolated since his deportation.[34] He has also a stable record of employment with Queensland Health since 2004, and the most recent evidence as to the status of this is that he remains on long service leave.[35] There have been no complaints regarding his conduct in the workplace, and he appears to have the respect and trust of his work colleagues,[36] at least one of his sons,[37] and the woman to whom he was married at the time of the offences.[38]
[34] Ex 3 “Attachment B” correspondence Dr Graham D’Arcy.
[35] Ex 2 paras 20 and 21.
[36] Ex 1 PT 7 p 30.
[37] Ex 5.
[38] Ex 1 PT 7 p 31 and 32.
Dr Young’s report was attachment “A” to the statutory declaration of Terrence William Fisher dated 17 April 2018.[39] Dr Young was engaged by the applicant’s then solicitors to prepare a pre-sentence report for use before the sentencing judge. The Tribunal was informed that Dr Young was deceased.
[39] Ex 6.
Dr Young interviewed the applicant on two occasions, and was aware of the charges for which the applicant was to be sentenced. The report was no doubt based in part on what the applicant told the doctor at those interviews.
The Tribunal considers that Dr Young sought to minimise and skate over the seriousness of the applicant’s conduct, even going so far as to employ the term “horseplay” in his characterisation of these serious criminal offences.
Dr Young appeared to too willingly accept the applicant’s contention that he – the applicant - was attracted to adults, not children as was recorded in the report. The doctor attempted no reconciliation of this assertion with the fact that the applicant was pleading guilty to a series of charges of serious sexual offences against two, ten-year old children committed on different occasions over a period of some four and a half months. There was no psychiatric explanation or comment given or attempted as to why a man who was said to be sexually attracted to adults would carry on a sexual relationship with two, ten year olds over such a period, or why, a few months before sentencing, in respect of those offences, the doctor could now confidently proclaim that the applicant’s demonstrated sexual interest in children had suddenly and permanently ceased, and that he was no risk of re-offending.
Unfortunately Dr Young is deceased, and questions which might otherwise have been put to him must remain unanswered.
In the circumstances, the Tribunal gives little weight to the report of Dr Young.
The Tribunal also had before it a report dated 29 January 2019 from Dr Annabelle Clarke a Clinical Psychologist who also gave evidence before the Tribunal. Dr Clarke’s report was not assigned an exhibit number, and based on the transcript of the proceedings, was not actually tendered as evidence, even though she gave evidence in chief and was subject to cross-examination in respect of it.
The Tribunal has had regard to Dr Clarke’s report.
Dr Clarke stated in her report that she had applied the New Zealand Code of Conduct for Expert Witnesses in writing her report, which forms part of the Tribunal’s file.
At paragraph 13 of her report, Dr Clarke referred to the Queensland Police Brief of Evidence dated 15 July 2002 saying that it:
“noted that the context of the offending was initially innocent wrestling type play between [the applicant] and the victims on his bed. Over time, the wrestling type play included massage and became sexually oriented.”
The Tribunal is concerned that Dr Clarke also attempted to downplay or minimize the seriousness of the applicant’s conduct. The actual sentence contained in the Queensland Police document referred to by Dr Clarke was much more direct:
“The offending started as play wrestling which the defendant would turn sexual by grabbing the complainant and pushing his erection between the complainant’s buttocks for a couple of seconds (Count 2) this was repeated on several occasions.”
Dr Clarke assessed the applicant’s risk[40] of sexual re-offending according to the Violence Risk Scale: Sexual Offender Version (VRD:SO) as low, and said that it was now comparable to those that have never committed a sexual offence. Dr Clarke’s assessment was in part based on her observation “there is no evidence to suggest that he has re-offended against children in 26 years.”
[40] Dr Annabel Clarke Psychological Assessment Report dated 29 January 2018 p 6 para 17.
It is clear that Dr Clarke did not share Dr Young’s opinion that the applicant was at “no risk” of re-offending, as she assessed him as being “low risk of sexual re-offending”.
In her evidence before the Tribunal, Dr Clarke stated[41] “We never say someone’s at no risk of a sexual offence at all.”
[41] Transcript p39 line 25.
Nevertheless, Dr Clarke appeared to be effectively saying just that when she said in her report:[42]
“Given the significant period of pro-social behaviour apparent, if [the applicant] were to re-offend, the most likely scenario is assessed as a minor traffic violation such as speeding.”
[42] Dr Annabel Clarke Psychological Assessment Report dated 29 January 2018 p 7 para 18.
Although the applicant had told Dr Young that he was sexually attracted towards adults, and not children, there is no evidence that he repeated this assertion before Dr Clarke, or that it was raised with him by Dr Clarke. In her report, Dr Clarke recorded as follows:[43]
“At interview, [the applicant] reported that whilst he had no concerns with regard to his own conduct, he took a number of precautions to ensure that the community felt confident in this regard. These precautions include: choosing a residence that is not close to a school or preschool facility; ensuring other adults are present when in the company of children (e.g. birthday parties); not generally visiting beaches or parks without another adult, but when alone, choosing quiet areas where children and families are not present; attending the gym outside of the opening hours for the attached child care facility; declining to babysit when asked by friends; not allowing children to sit or climb on him, even when other adults are present; and, ensuring no children are present when changing at the swimming pool. Furthermore [the applicant] stated that he had not sought or experienced sexual encounters in public places such as parks or toilets since 1995, and that his conviction served as a deterrent.”
[43]Dr Annabel Clarke Psychological Assessment Report dated 29 January 2018 p 4 para 9.

The above passage from Dr Clarke’s report is very much at odds with what the applicant told Dr Young, and casts doubt on the truthfulness of what he told Dr Young, which was that “his sexual feelings are towards adults and not children”. The Tribunal notes that Dr Clarke did not expressly make a similar finding in this regard, however did record the following:[44]
“In combination with corroborating evidence including the psychiatric report (E.Young 9 September 2002), no sexual deviancy was identified.”
[44] Dr Annabel Clarke Psychological Assessment Report dated 29 January 2018 p 4 para 8.
The Tribunal is concerned that two experienced specialist medical practitioners could interview a man who admitted maintaining a sexual relationship with a 10 year old boy over a period of four and a half months, and indecently dealing with a 10 year old girl and fail to identify any sexual deviancy. The Tribunal notes in passing that whilst the medical practitioners could identify no sexual deviancy in the applicant, the Parliament of the State of Queensland appears to take a different view as is evidenced by the fact that the offence created by section 229B of the Queensland Criminal Code (maintaining a sexual relationship with a child) of which the applicant was convicted, is contained in Chapter 22 of that Code headed “Offences against morality” and carries a maximum sentence of life imprisonment.
The Tribunal was given no explanation as to what might constitute “sexual deviancy” for the purposes of psychological assessment, and was presented with a conclusion rather than the expert basis for drawing that conclusion. In any event, Dr Clarke found corroboration in the report of Dr Young, to which the Tribunal has given little weight, and therefore the Tribunal gives little weight to this conclusion by Dr Clarke.
Were it the case that the applicant had no sexual feelings towards children, there would be no logical explanation for the applicant taking the lengthy list of precautions outlined in Dr Clarke’s report to prevent him from coming into unaccompanied contact with children. Likewise, there would be no need for him to view his conviction, “as a deterrent”, unless he himself was fearful of re-offending.
Dr Clarke offered no professional opinion on the need for, or the desirability of, the applicant applying or continuing to apply his self-imposed precautions, or what consequences might flow in the event that he ceased to apply these precautions. Importantly, Dr Clarke failed to state that the applicant’s self-imposed precautions were unnecessary, and that in her opinion they could safely be abandoned.
The Tribunal finds that the applicant imposes these precautions as outlined in Dr Clarke’s report, because the applicant considers it necessary and desirable to do so. The Tribunal infers from this that the applicant imposes these precautions because he regards himself as a risk of reoffending were he not to do so.
In the circumstances the Tribunal gives Dr Clarke’s opinion little weight.
The medical evidence provided by the applicant, at its best, asserts that he is a low risk of reoffending. That opinion appears to be based in part on the applicant’s self-imposed precautions.
Were the Tribunal to set aside the Minister’s decision in this case, the Tribunal would have no means at its disposal so as to ensure that the applicant continued to discipline himself in this way.
The Tribunal accepts that the Minister’s decision has an unintended consequence in that the applicant was out of the country at that time, and therefore did not revert to an ex-citizen visa, and must now apply for entry to Australia on the same basis as any other noncitizen.
In his opening remarks to the Tribunal, the applicant’s counsel stated
“There is no dispute from the respondent that the effect of the decision to revoke [the applicant’s] citizenship is that for all practical purposes he faces a life-time ban from entering Australia.”
In making this statement, the applicant’s counsel implicitly conceded that the evidence being offered to this Tribunal applicant would not be sufficient to satisfy the character test imposed by section 501 of the Migration Act 1958 (Cth), because the applicant has a “substantial criminal record” in consequence of the fact that the applicant has been sentenced to a term of imprisonment of 12 months or more.[45]
[45] Section 501(7)(c) Migration Act 1958 (Cth).
A “substantial criminal record” for the purposes of the Migration Act, is the same as a “serious prison sentence” for the purposes of the Act, as each definition is based on “a sentence of imprisonment for a period of at least 12 months.”
The applicant was of course absent from Australia holidaying with his elderly mother at the time of the decision. It is not the fault of the Minister that the applicant chose to be absent from Australia at a time when the applicant knew that the cancellation of his citizenship was under consideration, and also knew that in the event that an adverse decision was made whilst he was out of Australia he would need to apply for a visa for re-entry. The applicant was also aware that were he to be in Australia at the time of decision, he would become the holder of an ex-citizen visa by operation of law. All of this information was conveyed to the applicant in a letter from the Department on 2 March 2017. In this knowledge, the applicant elected to absent himself from the country and must be taken to have accepted the risk of so doing. Any lack of proportionality which may flow from the Minister’s decision, flows in consequence of the applicant’s election to take this risk.
The statutory test which this Tribunal has to consider and apply, is what is contrary to the interests of the Australian people, not what is contrary to the interests of the applicant and his family. Once any level of risk to the Australian people is apparent, it cannot be in their interest that they be exposed to it.
The Tribunal has no evidence before it as to how the applicant’s victims feel about this application. The applicant’s son noted in his evidence[46] that the applicant “is now on positive terms with his family, including [the female complainant]”. If this is in fact true, it is surprising that the applicant did not call the female complainant herself to give that evidence.
[46] Ex 5 at para 10.
Pivotal to the submissions on behalf of the applicant is the assertion that he has not re-offended. The problem is that there is a risk that the applicant has not told the doctors the truth.
Even if the applicant has told the truth to the doctors, the inexact science of matters psychiatric and psychological means that their opinions – even if otherwise professionally sound – may be founded on falsehood. Of course, if the opinions are founded on falsehood, their worth is devalued considerably.
Offences of this nature often go unprosecuted all together, and it is quite common for those cases which are prosecuted to only reach the courts many years after the time of commission, as in the present case, at a time when the victims feel they have reached the level of age, maturity and strength of mental health when they can subject themselves to the possible ordeal of re-living painful episodes.
The Tribunal has seen a statement by one of the sons of the applicant who had been intended to give evidence at the hearing. At hearing the applicant’s intention to call that son as a witness was announced by his counsel without explanation, and the Tribunal was informed that the applicant was not relying upon that statement. Having seen the statement, the Tribunal cannot “unsee” it. There did not appear to be anything which could be construed as adverse to the applicant, but in the circumstances the Tribunal gives it no weight.
Counsel for the respondent read into the record from a Queensland Police Record which pertained to allegations (denied by the applicant) which were said to have been made to police in July 2011 in respect of the applicant’s conduct, but in respect of which he was never charged, and the complaint was withdrawn. The complainant was a son of the applicant who had provided a statutory declaration for the applicant, but who was not called as a witness for the applicant, and the applicant placed no reliance on that statutory declaration.
Counsel for the respondent was thereby deprived of the opportunity to question the complainant in relation to the matters contained in the Queensland Police Record.
The Queensland Police Record was not admitted into evidence, and in any event, counsel for the respondent did not ask the Tribunal to give weight to it,[47] and did not ask the Tribunal to conclude that the applicant had “been involved in post-conviction offences”.[48] Accordingly, the Tribunal finds the matters contained in a Queensland Police Record are untested and uncorroborated. The Tribunal has given the Queensland Police Record no weight, as in the circumstances it would be unfair to the applicant to place any reliance on it.
[47] Transcript p 26, line 1.
[48] Transcript p.31, line 30.
The Tribunal accepts the applicant’s evidence that the cancellation of his citizenship has caused him hardship, in that, he has been separated from his elderly frail mother, his family, his job, and his home.[49]
[49] Ex 2 p 5 paras 39-45.
The Tribunal accepts that the applicant is highly regarded by work colleagues as evidenced by the letters of the Doctor.[50] There is no evidence before the Tribunal that the Doctor knew anything of the applicant’s convictions, or the details of the offences for which he was convicted.
[50] Ex 1 PT 7 p 30; Reference dated 6 March 2018.
The Tribunal accepts that the applicant continues to have the support and confidence of his former wife,[51] as well as that of one of his sons.[52] The Tribunal also accepts that the applicant and his family and mother have all suffered in consequence of his deportation.[53]
[51] Ex 1 PT 7 p 31.
[52] Ex 5.
[53] Ex 5 paras 12-17.
The Tribunal also accepts that the applicant is genuinely remorseful, and is a low risk of re-offending. The Tribunal also finds in the light of what the applicant told Dr Clarke, that he takes self-imposed precautions to guard against re-offending, and in doing so seems to recognise that he remains a risk of re-offending.
DECISION
It is axiomatic that the Australian public has a strong interest in the welfare and wellbeing of its children.
It cannot be in the interests of Australian children for them to be exposed unnecessarily to an avoidable risk, even if that risk is a low one.
Whatever inconvenience or adversity may flow to the applicant and his loved ones from the loss of his citizenship, the public interest in the safety and wellbeing of its children requires that the decision under review must be affirmed.
For all of the above reasons, the Tribunal is satisfied that it would be contrary to the public interest for the applicant to be an Australian citizen.
Accordingly, the decision under review is affirmed.

I certify that the preceding 79 (seventy nine) paragraphs are a true copy of the reasons for the decision herein of Member Roger Maguire

.....................[SGN]..........................
Associate
Dated: 24 July 2019

Dates of hearing:

23 May 2018

Representative for the Applicant:

Representative for the Respondent:

FDL Migration Service Australia

Moray & Agnew Lawyers

[2019] AATA 6871

24 July 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies