CVGY and Minister for Immigration and Border Protection (Citizenship)
[2017] AATA 2094
•3 November 2017
CVGY and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 2094 (3 November 2017)
Division:GENERAL DIVISION
File Number: 2017/2420
Re:CVGY
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Deputy President Dr Christopher Kendall
Date:3 November 2017
Place:Perth
The decision under review is affirmed.
........................[sgd]...................................
Deputy President Dr Christopher Kendall
CATCHWORDS
Citizenship – good character – whether Tribunal satisfied the Applicant is of good character – previous convictions – indecent dealing with a child under 13 – traffic offences – denial in relation to criminal record ̶ lack of remorse – 13 years since last offence – character references – Applicant found not to be of good character – decision under review affirmed
LEGISLATION
Australian Citizenship Act (Cth) – section 21(4)(f)
CASES
Assafiri and Minister for Immigration and Border Protection [2014] AATA 35
Darwich and Minister of Immigration and Citizenship [2007] AATA 2106
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
LHJS and Minister for Immigration and Border Protection (Citizenship) [2015] MTA 842 Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 212
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385
Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326
Silby and Minister for Immigration and Citizenship [2007] AATA 1729SECONDARY MATERIALS
Citizenship Policy – chapter 11REASONS FOR DECISION
Deputy President Dr Christopher Kendall
3 November 2017
Pursuant to s 35(3) of the Administrative Appeals Tribunal Act 1975, the Administrative Appeals Tribunal (the “Tribunal”) can restrict the publication of the names of a party to proceedings and allocate a pseudonym to a party if the Tribunal deems it appropriate to do so.
The Tribunal determined that it was appropriate to restrict the identification of the Applicant in these proceedings, primarily because the sexual offence for which the applicant was found guilty in 2004 involved a minor child whose future interests merit protection. Accordingly, the Applicant will be referred to below by the pseudonym “CVGY”. The Tribunal has also determined that it should not disclose the names of any witnesses and those who provided character references for CVGY.
CVGY has applied to the Tribunal for the review of a delegate of the Minister for Immigration and Border Protection (the “Minister”) dated 12 May 2016 refusing his application for conferral of Australian citizenship. The delegate determined that CVGY did not meet the “good character” requirement contained in section 21(2)(h) of the Australian Citizenship Act 2007 (the Act).
BACKGROUND FACTS
A summary of the background facts relevant to this matter were provided by counsel for the Minister in a Statement of Facts, Issues and Contentions dated 15 September 2017. These background facts were not disputed and provide as follows.
CVGY is a resident of the United Kingdom. He was granted a BF-R permanent visa in Australia on 18 December 1989 (T2)
CVGY had previously lodged an application for citizenship in 2011. This application was refused because it was determined that CVGY failed to meet the good character requirement in the Act (T2 at 10; T6 at 85).
CVGY lodged a further application for citizenship by conferral on 16 May 2016 (T6 at 85-95).
CVGY has been convicted of the following offences, all of which were acknowledged in his application for citizenship (T6 at 92):
Date of conviction
Court
Offence
Sentence
1985
Wilful exposure
6 months’ probation
11.01.1998
Port Hedland Court of Petty Sessions
Assault - common
Fine $150
16.08.2004
Port Hedland Court of Petty Sessions
Driving under the influence
MDL disqualified 6 months
Fine $800
05.11.2004
District Court of Western Australia
Indecent dealing with a child under 13 (3 counts)
1. 16 months imprisonment
2. 16 months imprisonment (concurrent)
3. 8 months imprisonment (concurrent)
The 1985 conviction no longer appears on CVGY’s national police check (T8 at 103). CVGY does not deny, however, that the event in question (described by him as urinating in a park) occurred.
On 25 November 2016, the Department of Immigration invited CVGY to comment on adverse information in relation to his past criminal offences (T9 at 104).
On or about 6 January 2017, CVGY provided the Department with a response comprising his comments on why he believes his 2004 conviction for indecently dealing with a child under 13 was unfair and/or unsound (T11 at 112-132).
On 28 March 2017, a delegate of the Minister made a decision not to grant CVGY citizenship by conferral. The delegate was not satisfied that CVGY met the good character requirement in s 21(4)(f) of the Act (T2 at 7-17).
On 28 April 2017, CVGY lodged an application for review by this Tribunal (T1 at 1).
ISSUES
The only issue for the Tribunal to consider is whether CVGY now meets the good character requirement in s 21(4)(f) of the Act.
LEGISLATION AND RELEVANT POLICY GUIDELINES
Section 21(4) of the Act sets out a range of criteria that applicants for citizenship by conferral who are over 60 years of age must meet.
Relevantly, one of the criteria in s 21(4)(f) is that the person:
(f) is of good character at the time of the Minister’s decision on the application.
Until recently, decision makers seeking guidance about the meaning of “good character” were referred to the policy guidelines found at Chapter 10 of the Australian Citizenship Instructions (“the ACIs”). From 1 June 2016, the Citizenship Policy (“Citizenship Policy”). replaces the policy guidance previously provided in the form of the ACIs. The role of Citizenship Policy is to support the Act. It provides guidance on the interpretation of, and the exercise of powers under, the Act and the Australian Citizenship Regulations 2007.
The relevant policy guidelines in relation to CVGY’s application are outlined in Chapter 11 of the Citizenship Policy
EVIDENCE
This matter was heard in Perth on 30 October 2017. CVGY appeared in person and was unrepresented. The Minister was represented by Ms Ladhams.
The evidence before the Tribunal consisted of:
·a 132-page set of T-documents (T1 to T11) (R1);
·a Supplementary set of T-documents (ST1 to ST3) (R2);
· a Statement of Facts, Issues and Contentions from the Minister dated 15 September 2017 (R3);
· written Submissions (28 pages) from CVGY (including various character references) received by the Tribunal on 22 August 2017 (A1);
· typed letter from CVGY referenced as “Comments on the Indecent Dealing Conviction” (A2);
· letter from the Lions Club dated October 2017 (A3);
· witness Statement from Ms [C] dated 14 August 2017 (A4); and
· second Application for Australian Citizenship: An Outline of the Assessors Assessment – My Response (A5).
CVGY gave oral evidence and was cross examined. Three witnesses also appeared on behalf of CVGY and gave evidence as to CVGY’s character.
The Tribunal has reviewed all of the evidence before it and highlights that evidence where relevant below.
CONSIDERATION
The Meaning of Good Character
The Act does not define the term “good character”. The Tribunal notes, however, that a decision about whether a person is of good character requires the consideration of an aggregate of qualities: Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326.
Further, the Citizenship Policy explains that the Tribunal should have regard to the ordinary meaning of the words in assessing good character. In that regard, the Tribunal is directed to Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84, wherein Lee J noted (at [94]):
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 to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion: see Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25; 117 FLR per Miles CJ at FLR 459−60; Plato Films Ltd v Speidel [1961] AC 1090 per Lord Radcliffe at 1128−9, Lord Denning at 1138. 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: see Re Davis (1947) 75 CLR 409 per Latham CJ at 416; Clearihan per Miles CJ at FLR 461. Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
The Tribunal notes that, in this context, ‘moral’ does not have any religious connotations. As explained in the Citizen Policy, the phrase ‘enduring moral qualities’ encompasses the following concepts:
·characteristics which have been demonstrated over a very long period of time
·distinguishing right from wrong
·behaving in an ethical manner, conforming to the rules and values of Australian society.
The Tribunal also notes that CVGY’s offences do not preclude him from being found to have enduring moral qualities. As explained by Senior Member P W Taylor SC in Darwich and Minister of Immigration and Citizenship [2007] AATA 2106 (24 December 2007) (at paragraph 43):
Past conviction is not; and in the absence of any specific statutory provision (such as section 501(6) of the Migration Act 1958), cannot be regarded as, an automatic barrier to the establishment of a person’s contemporary “good character”: Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187.
Further, as outlined by Senior Member Toohey in Assafiri and Minister for Immigration and Border Protection [2014] AATA 35, the “enduring moral qualities” of which good character speaks must be demonstrated objectively over a sufficient period. How long that will be will depend on all the circumstances of the case.
It is further explained in the Citizenship Policy that in Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 Deputy President Breen stated at [8]:
The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home. The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years time when he can demonstrate a longer period of positive contribution to the Australian community.
Without limiting the many other factors that the Tribunal can look to, guidance can be found in the Citizenship Policy’s description that an applicant of good character would:
· respect and abide by the law in Australia and other countries
· not be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance)
In relation to weighing up these various factors, the Citizen Policy states:
Essentially, the question for decision makers is whether any mitigating circumstances and/or explanation provided by the applicant outweigh the behaviour in question. The assessment about whether an applicant is of ‘good character’ requires the consideration of an aggregate of qualities.
Decision makers should place more weight on significant offences.
In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standards. Having regard to the words of the Preamble, and the pledge to be made if citizenship is approved, decision makers are asking themselves:
·would a person of good character have behaved the way the applicant did
·what is there to demonstrate that the applicant has upheld and obeyed the law
·has the applicant behaved in accordance with Australia’s community standards
·does the applicant share Australia’s democratic beliefs and respect its rights and liberties.
The Seriousness of CVGY’s criminal offending
In assessing whether CVGY is of good character, the Tribunal first looks to his criminal record. Although CVGY has four criminal convictions, the Tribunal is, for citizenship purposes, most concerned with CVGY’s 2004 offence for indecent dealing with a young girl under the age of 13.
As correctly summarised by counsel for the Minister at paragraphs 20 to 22 in a Statement of Facts, Issues and Contentions dated 15 September 2017, an explanation of the conduct which resulted in CVGY’s conviction for indecent dealing with a child under 13 years can be found in the information provided by the police and in the District Court transcript. This shows that the 3 counts of indecent dealing with a child under 13 for which CVGY was convicted were respectively for:
i.CVGY placing his hand on the child’s breast;
ii.CVGY touching the child’s vagina;
iii.CVGY placing the child’s hand on his penis.
The evidence shows that offending took place in the back of a van while the child’s parents were in the front of the van. The statement of material facts summarises the key facts as follows (ST1 at 136):
[The accused] verbally greeted [the complainant] and gave her a tight hug, lifting her off the ground and placed both his hands on her buttocks.
After the accused let her go she went outside where her parents were talking with the accused’s sister. After a short time they all went to the complainant’s parent’s Mazda 8 seat mini bus, and the parents, complainant and the accused left in the mini bus to return to …, where it was intended that the accused would visit with the family overnight. The accused seated himself in the rear of the mini bus to the right of the complainant on the same bench seat. The complainant’s mother was driving and her father was in the front passenger seat.
The accused had a conversation with the complainant and was hugging her. While still talking to the complainant he placed his hand on her leg. The complainant was wearing blue swim shorts and a striped short sleeved crop top. Her shorts had moved up as she was wriggling around because of the heat.
The accused’s hand moved further up the complainant’s leg until he had his hand inside the complainant’s shorts. He squeezed her thighs a couple of times. The complainant told him to remove his hand.
He continued to cuddle the complainant and placed his hand on her right breast squeezing it. The complainant tried to move away but could not because the accused was hugging her.
He placed his hand back on her leg, he moved his hand under her shorts and squeezed her thigh. The complainant kept her legs together. He placed his other hand between her legs and opened her legs. The accused then fingered her knicker line and moving his hand further inside the knickers, touching the complainants vagina.
The complainant moved away. The accused reassured her that it was OK and that she wanted it, and told her not to tell anyone. He then opened his fly and took his penis out of his pants. He told her that she could touch it. He then grabbed her hand and placed it on his penis and made her squeeze his penis.
The complainant removed her hand. He put his penis back into his shorts and told her that she could see him later and she could touch it again. He asked her if it was her first time. The complainant told him yes and that she did not enjoy it. These events took place during the journey from … to …while the accused continued an intermittent conversation with the complainant’s parents who were in the front seat of the car.
CVGY was convicted by a jury of his peers following a 2 day trial in the District Court. He was then sentenced to a lengthy term of imprisonment by Judge French. Judge French described CVGY’s offending as follows (ST3 at 270):
FRENCH DCJ:[CVGY] is before the court for sentence after having been convicted by a jury of three counts of indecent dealing on 26 January 2003. There are three separate counts but the incidents all occurred at the same time and within, in fact, a very short period of time during an hour’s journey or just under an hour’s journey from … to … on that evening.
The circumstances in which the offences occurred are somewhat unusual, them sic] having taken place in the back seat of the family eight-seater van with the complainant’s parents seated in the front. On the one hand, one could say or perhaps see that this is an isolated incident and certainly it is. There are no other conduct in [sic] relation to the complainant for the court to consider.
In one sense the complainant was in a position of safety in relation to any further conduct because her parents were in the front. On the other hand, one can easily understand her parents’ sense of complete betrayal and distress in relation to this because they are in a position where they feel they were unable to protect their daughter even though they were only within feet of her.
That is a situation that I think is likely to impact upon the complainant and of course also on her family. It is mentioned in the victim impact statement she is very wary with people. They even had to sell the van. She has a great deal of difficulty feeling safe. The circumstances that appear to have given rise to the commission of the offences; [CVGY] was a close family friend for quite some time and had known the complainant since she was an infant or a very young child.
It appears that he had consumed alcohol. The amount involved is uncertain but it would appear that he had been consuming alcohol. It would seem far more than he should have on that occasion and somehow or another a combination of that and the proximity with the child who had suddenly grown from being a little girl into a young adolescent somehow or another triggered the commission of these offences. As far as his personal circumstances is concerned [sic] [CVGY] comes before the court as a mature man, now aged 65, with an excellent work history.
He has been working as …. I have a number of references as to his character that indicate that he has been involved in a number of welfare related and community organisations, in particular in relation to aid organisations in the Philippines. The references have all been written in full knowledge of the nature of the offences and the referees all attest to such behaviour, which they accept of course has been denied by [CVGY] but nonetheless classified as being completely out of character for him.
He is somebody that they regard as a person of integrity, somebody who exhibits a high ethical standard in his work and in his community activities. He is described as a gentle and loving person and as I said, the references are indeed highly praiseworthy. It has been submitted - and in addition I also have a psychologist’s report which goes into some detail in relation to a psychometric and sexual behaviour questionnaire and assessment that was carried out on [CVGY] recently.
In the assessment of the psychologist, a clinical and forensic psychologist who is experienced in assessments of this nature, [CVGY] does not constitute a risk in terms of - or that his risk of reoffending is low. He doesn’t exhibit any deviant behaviours in terms of the assessment. They mention that if there is any trigger for reoffending it would possibly be alcohol consumption. As I understand, the only related, and it’s quite some time ago on the record, incident of an offence at all of a sexual nature was apparently following consumption of alcohol.
Effectively, he comes before the court as a man who is otherwise of good character and without any relevant previous convictions with the exception of which is quite historic in nature and certainly doesn’t involve any offences against a child. It is no doubt on that basis that submissions have been put to me that something other than a term of imprisonment would be appropriate, namely an intensive supervision order to address perhaps alcohol consumption and any other matters of a psychological nature that may arise.
Alternatively it has been submitted that if I considered that the only appropriate discretion was a term of imprisonment that that term of imprisonment should be suspended. As I said, on the basis of his strong personal characteristics, the fact that this was an isolated incident occurring - the three offences occurred on the one occasion and that he was under the influence of alcohol and also that he has been - somebody in his position has been significantly punished in a sense by the ordeal of having to face these charges.
He has I understand been suspended from his employment and although he has reached retirement age, he did in fact intend to continue in his professional occupation as a nurse for some years. I have given the matter careful consideration - perhaps I should add that the state has submitted that these are serious matter [sic], that the effect on the complainant has been a serious one.
She has been attending the psychologist at school for some time and of course the victim impact statement does highlight the trauma that this has caused, not only to the complainant at the time but also the problems she has experienced since then and of course the consequences that this offending has had on her family and her parents who no doubt along with child feel a real betrayal of trust in relation to this matter.
Although [CVGY] was not a family member and in that sense and in no way was in loco parentis or anything of that nature, the breach of trust arises from the fact that he is a mature man who has known the family on a reasonably intimate basis for a long time and has known the complainant since she was a very young girl.
I have given the matter consideration and I do not accept the defence submissions that it would be appropriate to impose a community based option. I consider that the offences are serious. It may well be that if I was looking at only the offence under count 1 or even count 2 it might be possible to contemplate an alternative to a term of immediate imprisonment but I consider the circumstances, in particular of the third count, are so serious the only appropriate disposition is a term of immediate imprisonment.
Although the offender’s personal antecedents are very favourable, in offences of this nature involving the sexual abuse of young children in our community the need to protect, young people in our community both in terms of personal and in particular general deterrence calls in the circumstances of this case for a term of immediate imprisonment.
I will reduce what would otherwise be considered appropriate, taking into account the fact that this was one isolated incident, that there is no continuation of any conduct, it was under the influence of alcohol. It appears to be, and there is no evidence whatsoever of any kind of plan or design, it was an opportunistic incident, but nonetheless a very serious one as far as the effect on the complainant is concerned, and I consider that the court needs to protect young people in our community from behaviour of this nature.
I will, however, reduce what I would otherwise consider appropriate to take into account those matters and the strong personal mitigating factors in relation to [CVGY]. As far as the charges on the indictment are concerned I would have sentenced him under the old scale to terms of one year and two years in relation to each of counts number two and three on the indictment.
As a result of the amendments to the Sentencing Act on the parole structure that will have to be reduced by one third, so he will be sentenced to a term of eight months’ imprisonment on the first count and to terms of 16 months’ imprisonment on counts 2 and 3. They will be made concurrent and he will be eligible for parole. I take it there is no time in custody to be taken into account, …?
Before this Tribunal, CVGY denied that he was guilty of this offence. He claims the incident never happened and that the child in question had fabricated the whole thing. This is addressed further below.
As correctly summarised by counsel for the Minister, the Tribunal cannot go behind or question the soundness of a conviction. It is noted, in this regard, the decision in LHJS and Minister for Immigration and Border Protection (Citizenship) [2015] MTA 842 at [21]-[22], wherein Member Perton accepted in a citizenship context that it was not appropriate for the Tribunal to go behind the conviction, relying on the following comments from Branson J in Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385 at [38]:
... proof of a conviction is, as a matter of logic, highly probative of the truth of factual matters essential to the conviction. Little public benefit might be thought to flow from the expenditure of time and money involved in the reconsideration of the same issues by an administrative decision maker. Moreover, particularly where significant time has passed since the events which founded the criminal charge, evidence which was available at the criminal trial might not be available at the time of the administrative hearing. Matters which were conceded or proved beyond reasonable doubt at the criminal trial might quite easily be denied by a party to an administrative hearing who knows, for example, that a former witness against him has died or is otherwise unlikely to be called to give evidence.
Counsel also drew the Tribunal’s attention to the decision in Silby and Minister for Immigration and Citizenship [2007] AATA 1729 at [65], wherein Senior Member Hastwell accepted in a citizenship context the following comments of the Full Federal Court in Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 212; (1981) 5 ALD 135:
... There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal. However such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant’s criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial. ...
In relation to this issue, counsel for the Minister contended as follows:
27.Thus, in the present case, the Tribunal could consider any mitigating factors which led to the applicant’s offending and circumstances surrounding the trial, but cannot doubt the conviction itself or the facts that had to be proved for the conviction to be entered. The respondent contends that:
27.1.the applicant had not asserted any mitigating factors which are relevant to his offending;
27.2.there is nothing in the transcript of the District Court proceeding or in the information advanced by the applicant about the trial, when considered objectively, to suggest that the applicant was not afforded a fair trial or that there were any circumstances that prevented the applicant from properly asserting a defence at the trial.
The Tribunal agrees. There is nothing before the Tribunal to suggest that there were mitigating factors that led to CVGY’s offending. Before this Tribunal, CVGY denied that he had a drinking problem or that he was drunk when the incident happened. On the contrary he strenuously denied that the incident occurred. His criminal record says otherwise and the Tribunal does not dispute (nor can it) the soundness of his 2004 sexual offence.
In these circumstances, the Tribunal finds that the offence for indecent dealing with a child under 13 is a very serious conviction indeed.
Remorse
It is accepted that the Tribunal will take quite seriously any feelings of remorse expressed by an applicant with a serious criminal record.
Unfortunately, CVGY denies the sexual offence in question and vehemently rejects any suggestion that he has done something wrong. As correctly summarised by counsel for the Minister:
32. In his explanation to the Department, the applicant:
32.1.complained that his solicitor referred him to a ‘grossly prejudiced female barrister’(T11, p113);
32.2.suggested that the charges were brought against him to enable the victim’s family to pay for a Mazda vehicle they had purchased recently (T11, p113);
32.3.blamed his barrister for being prejudiced against him and failing to do her job properly at the trial (T11, p113-114, 117);
32.4.has inferred that he was set up by the victim’s family and police (T11, p118-119).
It is further noted that in a written statement to the Tribunal dated 19 June 207 (A1 at 5), CVGY writes:
I had ‘phoned the plaintiff’s mother a couple of times this morning but no one answered until approximately 1430 hours when I spoke to her.
She was aware weeks ago that I would visit the family following my trip to Malaysia and the Philippines.
I asked her if I could arrive by 1800 hours, but she insisted at least three times that the family would collect me from Kwinana and take me home - a round trip of one (1) hour and twenty (20) minutes, which I thought, at the time, was so unnecessary.
The fact that she brought her daughter dressed in a swim suit, and knew she was going to be sitting beside me for forty (40) minutes or so, was of concern to my close friends post charges. One called it maternal neglect.
The insistence of the mother’s intention to drive such a considerable distance, coupled with her daughter dressed in a swim suit, should have stirred one’s thoughts to some act of complicity.
The complainant stated that she had been with me in my sister’s house for about fifteen (15) minutes, but it was only when we got into the vehicle that she thought I could be drunk - because I had difficulty finding my seat belt. (It was a vehicle I had never been in before, with three (3) sets of seat belts on the bench seat).
There was no zip to my shorts. I was overweight at the time, and nothing could have got in or out of my shorts in a sitting position. My friend …, remarked on the tightness of my shorts when I saw her two (2) days before Australia Day.
…
Further, in oral evidence to the Tribunal (A2), CVGY read out a statement that explained what happened as follows:
COMMENTS ON THE INDECENT DEALING CONVICTION
My home was searched for evidence by the police, and no incriminating evidence was found.
They seized my computer and found caricatures of a man with a grossly large uncircumcised penis, and a woman, whose nipples had been supplanted by a pair of circumcised penis’s.
These caricatures had been sent from the plaintiff’s family computer.
The police deleted the evidence.
I was convicted of placing my hand on the plaintiff’s breast - because she said so.
I was convicted of touching the tip of the plaintiff’s vagina - because she said so.
It should have been mandatory for her to attend a sexual assault referral centre had there been any measure of justice in this case, which of course, was non-forthcoming.
I was convicted of placing the plaintiffs hand on my penis - because she said so.
It should have been mandatory for the police to seize the plaintiff’s family computer, had there been any measure of justice in this case, which of course, was non-forthcoming.
I refer to the comments made by Victoria Judge Michael Croucher in the Whitely fraud case:
He said for guilty verdicts to be returned, the conclusions of fact underpinning the prosecution’s submission had to teach a criminal standard of proof.
Likewise, Professor Julie Stubbs, from Sydney University’s Institute of Criminology states:
‘Victims must prove their case beyond reasonable doubt in the eyes of the law, which is a very high standard of proof.’
In my case I was convicted soley [sic] on the plaintiff’s testimony with no factual proof of any wrongdoing.
Would the same evidence presented in an Eastern States Court have passed the pub test of ‘beyond reasonable doubt?’ I believe discussion on the subject would be to my absolute advantage.
The police in this state are notorious for planting and removing evidence in order to secure a conviction, which is grossly unethical, and most members of the legal profession would be aware of such conduct.
Is it any wonder the prison system is reeling under the weight of the prisoner population?
Exciting reading: We were sat in the back seat of the vehicle.
Before this Tribunal CVGY further indicated that the young child in question had been raised in a sexually promiscuous family setting and that this was probably why she said the things she did.
In concluding, counsel for the Minister contended:
34.The comments of the applicant suggest that he seeks to blame others for an offence that he was convicted of following trial by jury. He has not made any comments that acknowledge his behavior was inappropriate, nor has he provided any evidence of rehabilitation courses undertaken or the lessons he has learned from such courses. There is no remorse shown by the applicant for any of his past offending.
The Tribunal agrees. The Tribunal expresses considerable concern about CVGY’s lack of remorse. There is no reason on the evidenced to doubt that what happened actually happened. CVGY’s only sense of “loss” appears to be that he can’t now have contact with the child’s family. There is an almost perverse inability to recognise that what happened was devastating for the child in question and arguably traumatic for her entire family. CVGY’s failure to see this reflects poorly on his character and weighs heavily against setting aside the decision to deny him Australian citizenship.
Rehabilitation
It is perhaps not surprising, given his complete lack of remorse, that CVGY has taken no courses to address his offending behaviour. He indicated to the Tribunal that he had offered to take a sexual offences rehabilitation course in prison but that he couldn’t do so because he wasn’t in prison long enough. He also gave evidence that he had met with a social worker when released from prison but that these sessions were of no benefit to him.
The Tribunal has serious concerns about CVGY’s failure to address what happened through counselling. Had he done so, he might now be better able to acknowledge and address his wrongs. He has not done so and this too weighs against a decision to set aside the decision to deny him Australian citizenship and against a finding that CVGY is of good character.
Passage of time
It has been 13 years since CVGY was convicted of sexual offences against a child under 13. Further, since the date of his last offence, CVGY has not committed any further offences.
Arguably, a longer period without any misconduct illustrates a likelihood that good conduct will continue and provides strong foundation in establishing that an applicant is of “good character”.
The Tribunal notes, however, that in Assafiri and Minister for Immigration and Border Protection [2014] AATA 35, Senior Member Toohey stated:
64There is no formula for determining how much is sufficient time to be satisfied that a person is of good character ...
…
67It is submitted for Mr Assafiri that sufficient time has now passed for him to be considered of good character. I am not satisfied that is so. Time of itself is not enough. The “enduring moral qualities” of which good character speaks must be demonstrated objectively over a sufficient period. How long that will be will depend on all the circumstances of the case.
…
71I accept that absence of offending is itself an indicator of a person’s rehabilitation, and more so, as time passes. It counts in Mr Assafiri’s favour that nearly six years have passed without any further offences. However, there is not in my view sufficient objective evidence yet of his good character.
Guidance is also provided in the Citizenship Policy where it is highlighted that:
A decision maker needs to look holistically at an applicant’s behavior over a lasting or enduring period of time. The amount of time considered to be ‘lasting’ or ‘enduring’ depends on the merits of each case, but in most cases will go back prior to any visa application.
If a person committed a very significant offence (such as taking the life of another person, sexual assault, crimes against children, war crimes, crimes against humanity, genocide) the lasting/enduring period would be much longer, potentially over a period of many years. In such an assessment, the nature of the significant offence is more relevant to whether or not the person is of good character than the period of time since the crime was committed. Thus, it may be extremely difficult for a decision maker to be satisfied that a person is of good character after having committed such offences, even after the passage of many years.
In relation to this issue, counsel for the Minister contended that in relation to CVGY:
39… the applicant’s offence of indecent dealing with a child under 13 years, which included touching the child’s breast and vagina and placing the child’s hand on his penis, is a very significant offence. It is appropriate, taking into account the Citizenship Policy, to place greater weight on the nature of the offence than the time that has passed since the offence was committed. This is particularly so in circumstances where the applicant’s comments on the offending demonstrate that he has failed to accept responsibility for his offending or to accept that there was anything inappropriate in his conduct, and instead seek to lay blame for his conviction on the child victim, the child’s mother and the barrister who defended the applicant.
The Tribunal accepts that CVGY has not committed any offences since 2004. There is, however, more to a determination of good character than the last date of any conviction. The Tribunal must also look at an applicant’s conduct generally following these offences. In this regard, the Tribunal repeats its concerns about CVGY’s lack of remorse. Overall, his behaviour in this regard reflects a complete failure on his part to appreciate the devastating consequences of his actions. Not enough time has elapsed for the Tribunal to be satisfied that CVGY understands why what he did to a vulnerable child is completely contrary to Australian community standards and indicative of poor character.
Overall, this weighs heavily against CVGY being found to be of good character.
Character references and community service
The Tribunal heard from three witnesses and had before it written references from others. These witnesses, all of whom appear to be aware of CVGY’s sexual offending against a child nonetheless speak highly of CVGY. Some supported his assertion that he didn’t do what he was found guilty of doing. It is also noted that CVGY was highly regarded in his profession and actively volunteered for various community organisations.
These references weigh in favour of a finding that CVGY is of good character.
FINDINGS
On the evidence, the Tribunal agrees with counsel for the Minister that when all the relevant factors are evaluated, CVGY cannot be found to be of good character. Although it has now been 13 years since he was convicted of a serious sexual offence against a child, he has shown no remorse since that time and continues to blame the child, her family, his lawyer and the police for his conviction. He has accepted no responsibility for what can only be described as an abhorrent violation of a child’s innocence and safety. In the circumstances, despite some positive character references and evidence of community service, the Tribunal is not convinced that CVGY has sufficiently demonstrated good character over an extended period and does not do so today.
DECISION
For the reasons outlined above, the decision under review is affirmed.
I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr Christopher Kendall.
.......................[sgd]........................
Administrative Assistant
Dated: 3 November 2017
Date of hearing: 30 October 2017 Applicant: In person Representative of the Respondent: Ms L Ladhams Solicitors for the Respondent: Australian Government Solicitor
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