CTBP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2022] AATA 1318
•16 May 2022
CTBP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 1318 (16 May 2022)
Division:GENERAL DIVISION
File Number:2019/8389
Re:CTBP
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:16 May 2022
Place:Perth
The Reviewable Decision is affirmed.
.................[Sgd].......................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – eligibility – refusal of citizenship –whether Tribunal satisfied of Applicant’s good character at the time of the Tribunal’s decision – Applicant is a 21-year-old man who pled guilty and was convicted of three child sex offences when he was a 14-year old-minor – further conviction for failing to comply with sex offender reporting obligations when he was 17 years of age – Applicant a registered sex offender until August 2023 – Applicant denies offending – extent to which the Applicant can challenge the facts on which his convictions were based – character referees have no knowledge of the Applicant’s offending – Reviewable Decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 29(2), 29(7)
Australian Citizenship Act 2007 (Cth) ss 21(1), 21(2), 21(2)(h), 24, 24(1), 24(3)
Community Protection (Offender Reporting) Act 2004 (WA) s 6
CASES
BOY19 v Minister for Immigration and Border Protection (2019) 165 ALD 39
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
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
Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132
Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326
Taylor and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 19
Weston v The Queen (2015) 48 VR 413
Zheng and Minister for Immigration and Citizenship [2011] AATA 304SECONDARY MATERIAL
Department of Immigration and Border Protection, Australian Citizenship Policy
Department of Home Affairs, Revised Citizenship Procedural Instructions – CPI 15 – Assessing Good Character Under the Citizenship Act
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
16 May 2022
THE APPLICATION
The Applicant seeks review of a decision of a delegate of the Respondent dated
4 November 2019, made under s 24(1) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act) to refuse to grant the Applicant Australian citizenship by conferral (the Reviewable Decision).
The basis for the Reviewable Decision was that the delegate was not satisfied that the Applicant was of good character, as required by s 21(2)(h) of the Citizenship Act, and was not satisfied as to his identity, as required by s 24(3) of the Citizenship Act.
On 18 December 2019, the Applicant filed an application in this Tribunal seeking review of the Reviewable Decision. The Tribunal granted an extension of time (consented to by the Respondent) because his application was lodged after the prescribed 28-day period (see s 29(2) and (7) of the Administrative Appeals Tribunal Act 1975 (Cth)).
BACKGROUND
The Applicant was born in [redacted]. He arrived in Australia when he was approximately seven years old on 14 April 2007 as a dependent under his father’s Class XB Subclass 202 Global Special Humanitarian (Permanent) visa.
On 10 March 2015, when the Applicant was 14 years old, he committed three sex offences against two children who were approximately six or seven years old. I will now provide a summary of the offences from the sentencing Magistrate’s remarks.
The victims had been playing in a playground with a group of children when the Applicant pulled down his pants to expose his penis to the children. He asked the two victims to touch his penis, which one of the victims did. Upon returning to their nearby homes, the children told their mothers, who reported the offending to police.
On 28 April 2015, the Applicant was interviewed by police. Although there were some consistencies with the accounts provided by the victims, when interviewed, he denied the allegations.
The Applicant appeared in the Perth Children’s Court on 4 February 2016. He pled guilty to two counts of “procured, encouraged or incited a child under 13 years to do an indecent act” and one count of “indecent dealings with child under 13 years”. The Applicant was sentenced to three concurrent youth community-based orders (to include supervision and attendance at counselling as directed) for a six-month period.
As a result of these convictions, the Applicant became a reportable offender under s 6 of the Community Protection (Offender Reporting) Act 2004 (WA). He was registered on the Australian National Child (Sex) Offender Register (ANCOR) from 8 February 2016. His reporting requirements include to attend regular meetings with his case officers and to report changes in his personal details within seven days. His reporting obligations are in place until 4 August 2023.
On 26 September 2018, when the Applicant was 17 years old, he did not attend a scheduled meeting with his case officers, despite signing a notice that he would. He did not provide any prior notice of his non-attendance. On 22 October 2018, he was convicted in the Perth Children’s Court of “failed to comply with reporting obligations” and was given a one-month child good behaviour bond and a $50 undertaking.
On 19 June 2018, the Applicant lodged an application for Australian citizenship by conferral under s 21(1) of the Citizenship Act.
After seeking advice as to the authenticity of the Applicant’s birth certificate which he submitted with his application, and after requesting the Applicant complete additional forms to which he did not respond, the delegate made the Reviewable Decision on 4 November 2019 to refuse to grant the Applicant Australian citizenship by conferral.
ISSUE
Character
For the Applicant to succeed with this application, I must be reasonably satisfied that he is of good character at the time of my decision (s 21(2)(h) of the Citizenship Act).
Identity
As I noted above, one of the grounds on which the delegate made the Reviewable Decision, was that the delegate was not satisfied of the Applicant’s identity. The Respondent now submits that I can be reasonably satisfied of the Applicant’s identity for reasons I will now outline.
The Applicant’s sister was born in the same refugee camp as the Applicant. Like the Applicant, she had submitted a bogus birth certificate with her citizenship application. Her application was refused. She then appealed to the Tribunal. Her identity was subsequently ascertained to the relevant standard having regard to United Nations High Commissioner for Refugees birth registration material, as well as other material. This material was the Applicant’s father’s Australian citizenship certificate and a supporting statement, together with copies of correspondence between the Applicant, his sister and the [redacted] High Commission regarding an application made by them for a duplicate copy of their birth certificates. This resulted in the Applicant’s sister’s application being remitted to the Respondent by consent with a direction that the Respondent was satisfied as to her identity for the purposes of subsection 24(3) of the Citizenship Act.
I accept these submissions, and for the purpose of providing certainty in future decision-making, I find that I am reasonably satisfied of the Applicant’s identity.
LEGISLATIVE AND POLICY FRAMEWORK
Citizenship by conferral
Section 21(1) of the Citizenship Act provides that:
A person may make an application to the Minister to become an Australian citizen.
Section 24 of the Citizenship Act provides, in part:
(1)If a person makes an application under section 21, the Minister must,
by writing, approve or refuse to approve the person becoming an Australian citizen.(1A)The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
…
Section 21(2) of the Citizenship Act sets out general eligibility requirements for citizenship. It provides, in part:
(2)A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
…
(h) is of good character at the time of the Minister’s decision on the application.
Character
The Citizenship Act does not include a definition of “good character”. The meaning of “good character” was considered by the Federal Court in BOY19 v Minister for Immigration and Border Protection (2019) 165 ALD 39 (BOY19). O’Bryan J stated at [51]:
The following principles can be distilled from the authorities about the meaning of the expression “good character” in s 21(2)(h) of the Act. First, it refers to the enduring moral qualities of a person and not to the good standing, fame or repute of that person in the community, although the latter may provide evidence of the former. The expression is not concerned with the physical or intellectual attributes or abilities of a person. Second, the expression does not have a fixed and precise content. Like other broad statutory standards, such as whether an entity is a fit and proper person to hold a statutory licence or whether a decision is in the public interest, the expression imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statutory provisions (cf O’Sullivan v Farrer (1989) 168 CLR 210 at 216; 89 ALR 71 at 75 per Mason CJ, Brennan, Dawson and Gaudron JJ; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 348; 94 ALR 11 at 32; 21 ALD 1 at 18 per Mason CJ and CLR 380–2; ALR 56–8; ALD 40–2 per Toohey and Gaudron JJ. Third, and as a corollary of the second point, the expression requires a judgment as to whether any proved deficiencies in the moral qualities of a person are sufficient to deny the person citizenship.
When considering the meaning of “good character”, in BOY19, O’Bryan J referred to the preamble of the Citizenship Act at [52]-[53]:
The subject matter, scope and purpose of the Act is informed by its Preamble which states:
The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:
(a) by pledging loyalty to Australia and its people; and
(b) by sharing their democratic beliefs; and
(c) by respecting their rights and liberties; and
(d) by upholding and obeying the laws of Australia.
The ideals of diversity, democracy and liberty, reflected in the Preamble to the Act, indicate that the expression “good character” is not to be informed or assessed by individual religious, political or social beliefs, but by moral qualities that are regarded as a necessary concomitant of Australian citizenship. Matters that bear upon a person’s good character for the purposes of the Act are matters relevant to the obligations of citizenship as expressly or impliedly reflected in the Act, including its Preamble ...
From 1 January 2019, the Citizenship Policy, Department of Immigration and Border Protection is being systemically replaced by the Revised Australian Citizenship Procedural Instructions (Revised Instructions) which provide guidance on the application of the “good character” requirement. CPI 15 – Assessing Good Character under the Citizenship Act (CPI 15) of the Revised Instructions is the Instruction relevant to this application.
The CPI 15, at [3.3], observes that “good character” is not defined in the Citizenship Act, and that the Federal Court and the Tribunal have “used the ordinary meaning of the words, and made reference to dictionary definitions” to define the term. It observes that most cases have adopted the following definition from Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, 431–432 (Irving):
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 whilst 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.
After citing the above passage from Irving, the CPI 15 explains:
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 wholistic 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.
The CPI 15 then refers to the decision of Deputy President Breen in Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931, 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 does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few year’s [sic] time when he can demonstrate a longer period of positive contribution to the Australian community.
Relevantly, in Irving, at 424, Davies J stated that “[t]he question whether a person is or is not of ‘good character’ is primarily an issue of fact.” Davies J further stated that the assessment of character requires the decision-maker to exercise a value judgment, at
427–428:
I should reiterate that the issue for decision was an issue of fact, the determination of which Parliament reposed in the Minister and his delegates. It is not the task of this Court to come to its own view of that fact. The drawing of a conclusion by a decision-maker as to whether he or she is satisfied that an applicant for a visa is of “good character” requires the exercise of a value judgment. There are no precise parameters which distinguish “good character” from “bad character”. Although, in general, “good character” can be readily recognised, in a particular case views may differ. It is for the administrative decision-maker, in whom Parliament has reposed the function of making that assessment, to arrive at a decision.
Further, the CPI 15 also cites the decision of Deputy President Forgie in Zheng and Minister for Immigration and Citizenship [2011] AATA 304 at [120]:
In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do. Keeping out of trouble is one way in which a person may show that he or she is of good character. Doing good works and acts of kindness may be another. How a person behaves when trouble finds them or they are confronted by situations that make them uncomfortable may be yet another.
The ways are not finite.
The CPI 15, at [4], provides a non-exhaustive list of characteristics that an applicant of good character would have. These characteristics are to be considered against the facts of the individual case and are not to be applied rigidly or inflexibly. The CPI 15 states:
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:
o intentionally providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications;
o evading 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;
o knowingly entering into a bogus marriage or pretending to be a de facto partner of another person;
o concealing criminal convictions;
o fraud against the Commonwealth such as tax fraud or Centrelink fraud;
o giving false names and/or addresses to police;
· not be the subject of any extradition order or 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 [outlaw motorcycle gangs] 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.
The CPI 15, at [12.1], also provides guidance to decision-makers assessing good character under the Act where an applicant has a criminal record. The relevant part provides:
Decision-makers can only act on the basis that the verdicts of Australian courts, and the essential factual findings supporting the verdict, are correct. …
The necessity to act on the basis that the conviction is correct will apply regardless of whether the applicant maintains his or her innocence. …
…
If the applicant has committed an offence, was it serious offence? For example:
· crimes of violence (such as murder, manslaughter, assault, sexual assault, domestic violence, armed robbery, negligent or reckless driving occasioning injury or death);
· war crimes, crimes against humanity, genocide;
· crimes against children;
· drug trafficking (including importation and supply);
· people smuggling;
· fraud (including identity fraud);
· harassment or stalking;
· terrorist activity;
· extortion;
· illegal pornography, including child pornography;
· breaches of immigration law, including those that resulted in removal or deportation from Australia or another country;
· offences incurring prison sentences of 12 months or more.
(My emphasis.)
With respect to prison sentences, the CPI 15 states, at [12.2] that the decision-maker should:
Consider the length of the sentence. Longer sentences carry more weight on a person’s character.
The CPI 15 provides guidance to decision-makers in assessing the seriousness of an applicant’s offending:
Are there any ongoing obligations such as a good behaviour bond?
Note: Subsection 24(6) of the Act prohibits citizenship being approved in such circumstances. Refer to CPI 33 - Prohibitions on approval.
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. …
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, outlaw motorcycle gangs or youth gangs.
Consider whether there were there [sic] victims of the offence?
If so, were the victims children, the elderly or the disabled or others who were reliant on, or placed trust in, the applicant?
Is there a pattern of criminal behaviour?
A pattern of behaviour, even of repeated minor offences over an extended period, shows a disregard for the law and may support a finding that the applicant is not of good character. Decision-makers should consider whether the offending has become more serious or frequent over time.
Was the offence pre-meditated?
Sentencing remarks or court transcripts may provide insight into whether or not the judge was of the view that the offence was pre-meditated. That is, the person planned the offence. Pre-meditated offences would usually incur a heavier sentence, and therefore be given more weight in the assessment of character.
(Bold in original.)
The CPI 15, at [14], further guides decision-makers when they are weighing the information regarding an applicant’s character. These include the nature and circumstances of the offending, and whether there are any mitigating circumstances:
… officers assessing whether an applicant is of good character should as a general proposition:
· characterise the nature of any offence or behaviour
· is the offence serious or minor?
· did the offence harm other people?
· who were victims?
· is there a pattern of behaviour?
· was it a one off incident?
· were there extenuating circumstances?
Consider any associations with people or organisations of concern.
Consider any mitigating circumstances:
· length of time since the offence was committed
· age at time of offence
· behaviour since completing prison sentence or obligations to court
· remorse regarding their offending behaviour
· community support (referee reports etc)
· changes in the life of the applicant. For example, relocation away from people who had a negative influence, marriage or de facto relationship, children, treatment for addiction or mental illness.
The decision-maker must weigh up all relevant factors to decide whether the applicant is of good character. The decision-maker must look holistically at applicant’s behaviour over time and reach a conclusion about the person’s enduring moral qualities.
In a section titled “[w]eighing up the evidence” (at [14.2]), the CPI 15 states:
The question for decision-makers is whether or not the decision-maker is satisfied that the person is of good character at the time of decision on the citizenship application. This requires the decision-maker to weigh up all of the relevant evidence.
Decision-makers should consider the following matters:
· Would a person of good character behave the way the applicant did?
· What evidence is there to demonstrate that the applicant has upheld and obeyed the law?
· Has the applicant behaved in accordance with Australia's community standards, such as obeying the law?
· Does the applicant share Australia’s democratic beliefs and respect the rights and liberties of its people?
· Has the applicant taken steps to rehabilitate or change their lifestyle and become a person of good character?
· Are there any other factors that are relevant to an assessment of the applicant’s character?
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.”
A decision-maker needs to look holistically at an applicant’s behaviour over time. The amount of time depends on the merits of each case, but in most cases will go back prior to any visa application if the person is applying for citizenship by conferral.
If a person has committed a serious offence (such as murder, sexual assault, war crimes, crimes against humanity, genocide or crimes against children) the period would be much longer, potentially over a period of many years. Depending on the offending and the circumstances, it may be extremely difficult for a decision-maker to be satisfied that a person is of good character, even after the passage of many years.
In Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132, Deputy President Wright QC observed, with respect to past criminal offending and character, at [14]:
When criminal offences have been committed by an applicant they will obviously be taken into account. The extent to which the existence of criminal conduct will weigh in the scales against a finding of good character will depend upon many things including the seriousness of the crime, the length of time since its commission and the degree of rehabilitation of the offender.
SUBMISSIONS
The Respondent contends that the Applicant’s offending was serious, and considering the serious nature of the offending, that not enough time has passed for the Applicant to be able to demonstrate that he is now of good character.
Conversely, the Applicant submitted that he is of good character, and that sufficient time has passed for him to demonstrate good character.
CONSIDERATION
In support of his submission that he is of good character, the Applicant referred to the fact that he helps to support his family financially, including giving his mother half of his income to help provide for his siblings, and to help pay bills and the mortgage. He also described helping to look after his younger siblings, including driving them to school or sporting activities. The Applicant’s sister gave evidence at the hearing about the help the Applicant provides at home, including financially as well as helping to care for his siblings. I accept their evidence in this regard.
The Applicant also referred to being a role model to young [redacted] members of his sport (A1, para [7]-[9]). I accept that he is.
In support of this application, the Applicant filed several character references. These included a reference from his former employer (A3), whom he worked for from December 2020 to November 2021. This reference stated that the Applicant had “consistently worked hard and adopted a positive attitude towards learning”.
The Applicant also relied upon a letter dated 1 November 2021 from a person in a management position at his sporting club, P (A4). P described the Applicant’s dedication, especially given his family and work commitments, and refers to him as being a good role model to members of the [redacted] community through encouraging them to play the sport.
Another undated reference was provided by another manager from the Applicant’s sport, B (A5). B described the Applicant as a “fantastic and impressive young man” who is “well respected”, a “role model”, “respectful, always willing to support others”, and who is “always one of the first to arrive and the last to leave”. The letter concludes by stating: “I feel that [the Applicant] thoroughly deserves his Australian citizenship, and would be an outstanding asset to the greater Australian community”.
Another reference was provided by the Pastor of the Applicant’s Church, L (A7). L stated that he had known the Applicant for approximately 17 years, and that the Applicant is “a young man of strong moral character who treats others with courtesy and respect in our community”. L describes the Applicant as “always willing to help his siblings with their work” and states the Applicant is a “hard worker” and that his “motivation and discipline contribute to his siblings’ success”. Further, L stated that he was “confident [the Applicant] will be a good citizen who will obey the Australian laws and values. I recommend him without reservation to have his citizenship …”.
On the face of the references, the character referees appear to be sincere, although I note they were not called to give evidence at the hearing. However, none of the character references were aware of the Applicant’s offending. It is therefore unclear whether they would provide the same recommendations that the Applicant should be afforded Australian citizenship if they were aware of his offending. Consequently, I can only give these references limited weight in that they support the Applicant’s evidence that he is a good role model to his community and a responsible brother who helps provide for and encourages his siblings.
At the hearing, the Applicant denied committing the offences. His evidence was that he was playing basketball in the park and the children were playing in the playground. His evidence was that he needed to urinate and that while he was doing so, the children came over and looked. He denied that he asked one of the children to touch his penis. He also denied that the other child touched his penis.
The Applicant further stated that he pled guilty because he was advised by the duty lawyer that he would avoid a trial and going to prison if he did so. He stated that, as a 15-year-old child at the time of his court hearing, the prospect of going to prison scared him.
The Applicant also stated that he did not realise that he would be on a sex offender’s register if he pled guilty, which was a mandatory consequence of his conviction. His evidence was that being on this register and having to report to police every three months has caused him shame and embarrassment and that it has also affected his mental health.
This raises the question of whether I can accept the Applicant’s evidence that he did not commit the offences, and if so, to what extent.
In summary, para [12.1] of the CPI 15 which I have cited above, states that decision-makers should act on the basis that the verdict of an Australian court, and the essential fact findings supporting the verdict, are correct, regardless of whether an applicant maintains his innocence. This guidance in the CPI 15 is consistent with the legal authorities, which I will now briefly outline.
In HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 at [78] Bromberg J summarised the relevant legal principles as follows:
(1) Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.
(2) Where the exercise of the power is not founded on the conviction, then the essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.
(Emphasis added.)
The decision of Bromberg J was upheld by a majority on appeal in HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 (HZCP Full Court).
I note that the Applicant’s convictions fall within the second category described by Bromberg J. That is, they are not jurisdictional facts that gave rise to the power to make the Reviewable Decision. However, despite falling into this second category, as Bromberg J observed, “there is a heavy onus” on the Applicant, whose version of events is at odds with the facts upon which the convictions were based.
There is little judicial guidance as to what a “heavy onus” is. However, in HZCP Full Court, Colvin J observed, at [191]:
… unless there is a compelling reason to doubt the integrity of the process by which a person was convicted and sentenced or a compelling explanation as to why a particular factual foundation should not be accepted, administrative decision-makers will not meet their obligation to make findings based upon logically probative material if they make contrary findings.
That is, according to Colvin J, there might be a “compelling reason” or a “compelling explanation” to look behind a conviction, but care should be taken by the Tribunal in doing so because contrary findings are unlikely to be based on logically probative material.
I observe that it is difficult to formulate a “compelling reason” or a “compelling explanation” in the context of the Tribunal’s role within the separation of powers. The Tribunal is part of the executive who administer the laws, and guilt and punishment are for courts in the exercise of judicial power. It would, in most cases, be inconsistent with the Tribunal’s role to second-guess or usurp the Court by reaching a different factual conclusion (see McKerracher J in HZCP Full Court at [77]).
Additionally, if the conviction or sentence was unsound, there are judicial review avenues that the Applicant could have pursued. In Taylor and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 19 at [114], Senior Member Nikolic cited Redlich JA in Weston v The Queen (2015) 48 VR 413 who outlined what would be required to impugn the integrity of a guilty plea, at [109]:
To impugn the integrity of the plea, whether before or after conviction, the applicant must show an ‘issuable question of guilt’ and the existence of some circumstance which affects the integrity of the plea so that it would be a miscarriage of justice to hold the applicant to his plea. Some of the more common examples cited that may justify the conclusion that the applicant should not be held to his plea are that the applicant may not have appreciated the nature of the plea which he had entered, there may be no evidence upon which he could have been convicted, he may not have intended to admit he was guilty, or his plea may have been induced by fraud or other impropriety or that it was not offered with a consciousness of guilt.
In colloquial terms, if a person wishes to impugn the integrity of a plea, the bar is very high. For example, there must have been a miscarriage of justice, no evidence or guilt, or the plea of guilty must have been induced by fraud. I appreciate that the Applicant would have found the experience of attending court and the prospect of a prison sentence to be frightening and distressing. I also accept that he had representation from a duty lawyer who would have had minimal time to advise him, and that the Applicant may not have been aware that a guilty plea would result in him being on the ANCOR. I also accept that although he did not appeal his conviction, he may have realised that he could do so when it was too late and may not have had the financial resources to pursue an appeal. However, these factors, in my opinion, fall short of this high bar and are not sufficient to constitute a “compelling reason” or a “compelling explanation”.
I note that the Applicant’s sister was aware of his convictions but believed that he did not commit the offences. She cited issues with one of the parents of the children who were offended against. She stated that the woman and her children lived near the park where the offending occurred and did not like it when the Applicant’s siblings did not want to play with her children. I cannot give very much weight to her views. This is because she is a family member who is sympathetic to the Applicant and who is likely to have accepted the version of events that he described to her on face value.
Unfortunately for the Applicant, the evidence of the Applicant’s sister and the Applicant that he did not commit the offences is not sufficient to meet the “heavy onus” described by Bromberg J. I find that the evidence is not sufficiently logically probative to permit me to make a finding that the Applicant is innocent of the offences. I therefore find that it is appropriate for me to proceed based on the fact of the Applicant’s convictions and the essential facts of those convictions outlined by the sentencing Magistrate.
In relation to the seriousness of the Applicant’s offending, specifically the 10 March 2015 offences, the CPI 15 classifies “crimes against children” as “serious offences”. The Applicant’s ongoing reporting obligations, which have not yet ceased, are a further indication of seriousness. So too is the fact that, although the Applicant was a child at the time of the offending, the victims were only six or seven years of age, with the Applicant being seven or eight years older. Although the sentencing Magistrate did not impose a custodial penalty, His Honour stated that if the Applicant had been an adult, that he could be sent to prison. Although there was no pattern of behaviour because the offences arose from the same course of events, and there was no indication of any pre-meditation, after balancing these factors, I find the Applicant’s offences to be “serious”.
There are some mitigating factors. These are that the Applicant was a minor at the time of the 10 March 2015 offending. He has not committed any further offences (except for the September 2018 “failed to comply with reporting obligations” offence), with a recent criminal history check dated 3 December 2021 showing no disclosable court outcomes (A9). Further, I note that the sentencing Magistrate thought that the Applicant was “deeply ashamed” and “unlikely to offend again”. I have also considered the Applicant’s evidence (mentioned above) that he felt shame and embarrassment at having to report to police as a registered sex offender and that his mental health had been impacted. Also, no concerns relevant to character were recorded by police in their Sex Offender Management Squad (SOMS) reporting notes for the Applicant between 10 March 2016 and 18 October 2021. I also note that the Applicant’s mother and sister are supportive of him. He is now more active in his sporting community and he has support from pro-social referees (although as I noted above, they are unaware of his offending).
Accepting the fact of the offences and the facts described by the sentencing Magistrate, I am concerned that the Applicant has not taken full responsibility for his offending which raises questions about any rehabilitation that may have been facilitated from his court ordered counselling. Indeed, at the hearing, the Applicant stated that the counsellor would tell him what was right and what was wrong. The Applicant’s evidence was that he had told her his version of events that he was urinating in the park when the children came to look, and that she asked him if it was right to urinate at the park, to which he had replied it was not.
The Applicant submitted that even though he did not commit the offences, that he had nevertheless complied with his Youth community-based order, including attending all his counselling sessions. In this regard, I note a letter from the Central Metropolitan Youth Justice Services confirming his completion of, and compliance with this order and its conditions (A2). The Applicant also submitted that he had complied with his SOMS reporting obligations except for the breach on 26 September 2018, where he confused the dates and attended the police station the following day. I accept this explanation for the breach. There are no sentencing remarks or other material before me that indicate otherwise. It is to the Applicant’s credit that he complied with the order and its conditions, as well as adhering to his reporting obligations.
CONCLUSION
As I have outlined above, there are factors that weigh in the Applicant’s favour. These include his contribution to his community as a role model through sport, his role in helping provide for his family, his good character references (with the caveat that his referees do not have knowledge of his offending), the support of his mother and sister, the fact that he has not committed any further offences and his compliance with his reporting obligations (except for the reporting breach in September 2018).
However, there remains some doubt in my mind to the extent that I cannot reach a state of reasonable satisfaction that the Applicant is of good character. Notwithstanding the existence of some mitigating factors which I have outlined above, I am concerned about the serious nature of the offences against two victims who were six or seven-year-old children, and the Applicant’s denial of the offending. This raises doubts about the Applicant’s ability to discern right from wrong, the extent of his remorse and rehabilitation, and consequently raises doubts about his character. Although seven years has passed since the offending, the offending was serious, and the Applicant continues to be subject to reporting obligations until August 2023. I am therefore of the opinion that a longer period of time is required to pass during which the Applicant will have the opportunity to demonstrate good character.
In conclusion, I am not reasonably satisfied that the Applicant is of good character for the purpose of s 21(2)(h) of the Citizenship Act at this time. However, this conclusion does not preclude the Applicant from making a further application for citizenship in the future.
DECISION
The Reviewable Decision is affirmed.
I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner
..........[Sgd]..............................................................
Associate
Dated: 16 May 2022
Date of hearing: 17 January 2022 Representative for the Applicant: Mr J Ryan, Ryan & Co Solicitors Representative for the Respondent: Mr J Papalia, The Australian Government Solicitor
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