Edson Uy Torres and Minister for Immigration and Border Protection
[2014] AATA 814
•28 October 2014
[2014] AATA 814
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/2171
Re
Edson Uy Torres
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
Decision
Tribunal Senior Member CR Walsh
Date 28 October 2014 Place Perth The Tribunal affirms the decision under review.
…(Sgd) CR Walsh...............
Senior Member CR Walsh
Catchwords
Citizenship by conferral – eligibility – general residence requirement – Applicant convicted of offence of intentionally exporting child pornography videos – offence “major” under Australian Citizenship Instructions – Applicant not of “good character” – decision under review affirmed
Legislation
Australian Citizenship Act 2007 (Cth) – s 21(2) – s 21(2)(c) - s 21(2)(h) – s 22(1) – s 22(1A) – s 22(1B)
Customs Act 1901 – s 233BAB(6)
Criminal Code Act 1995 – s 11.1Crimes Act 1914 – s 20(1)(b)
CASES
Assafiri v Minister for Immigration and Border Protection [2014] AATA 35
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Kakar v Minister for Immigration and Multicultural Affairs [2002] AATA 132
Minister for Immigrations and Ethnic Affairs v Daniele (1981) 39 ALR 649
Prasad v Minister for Immigration and Ethnic Affairs [1994] AATA 326
Secondary Materials
Australian Citizenship Instructions (as issued on 23 November 2013) – Chapter 5
REASONS FOR DECISION
Senior Member CR Walsh
28 October 2014
INTRODUCTION
Mr Torres seeks a review of the decision of a delegate of the Minister for Immigration and Border Protection (Minister), dated 1 April 2014, refusing Mr Torres’ application for Australian citizenship by conferral because he did not meet the “good character” requirement for citizenship in s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (Citizenship Act) as a result of being convicted in the District Court of Western Australia of intentionally exporting child pornography videos found on Mr Torres’ laptop computer at Perth International Airport.
BACKGROUND
Mr Torres is a 37 year old citizen of the Philippines who first arrived in Australia on 18 March 2008 on a Temporary Work (Skilled) visa (subclass UC-457).
Mr Torres has been employed at Coates Hire since arriving in Australia in March 2008.
Mr Torres’ wife and three children live in the Philippines.
On 3 April 2009, Mr Torres was stopped at the Perth International Airport as he was about to board a flight to the Philippines to visit his wife and children, and was charged by police with attempting to intentionally export child pornography videos, which were found on his laptop computer.
On 6 August 2010, Mr Torres having pleaded guilty, was convicted in the District Court of Western Australia, under s 233BAB(6) of the Customs Act 1901 and s 11.1 of the Criminal Code Act 1995, for the offence of:
Intentionally export goods, being tier 2 goods
Comprising items depicting child pornography
Contained on a hard drive of a laptop computer,
Being reckless of the fact that the goods were tier 2 Goods and being goods the exportation of which is Prohibited.Scott DCJ sentenced Mr Torres to 12 months imprisonment to be released forthwith on entering a recognisance in the sum of $5000 and on the condition that he be of “good behaviour” for a 2 year period, pursuant to s 20(1)(b) of the Crimes Act 1914 (Good Behaviour Bond). The maximum penalty for the crime committed is 10 years imprisonment and a fine totalling $275,000. Mr Torres did not appeal his conviction.
Mr Torres subsequently applied to the Department for an Employer Nomination (Residence) (subclass BW-856) permanent visa.
On 14 October 2011, a delegate of the Minister wrote to Mr Torres regarding his application for an Employer Nomination (Residence) (Class BW) visa which was, at that time, being assessed by the Department. The letter stated:
It has come to the department’s attention that on 6 August 2010 you were convicted of Export Tier 2 Goods at Perth District Court and sentenced to 12 months imprisonment.
I would like to inform you that; on this occasion no consideration is being given to refusing your application for an Employer Nomination (Residence) (Class BW) visa, under section 501 of the Act [i.e. the Migrations Act 1958].
On 17 October 2011, a delegate of the Minister granted Mr Torres an Employer Nomination (Residence) (subclass BW-856) permanent visa.
On 18 February 2014, Mr Torres applied for grant of Australian citizenship using a standard Form 1300t - “Application for Australian citizenship”, dated 6 February 2014 (Citizenship Application). In the Citizenship Application, under the heading “Part F – Good character and criminal offences”, Mr Torres noted (at 31(a)) that he had been convicted of an offence in Australia but did not provide details of the offence in the box provided. However, Mr Torres did disclose further details of his conviction in his letter to the Department in support of the Citizenship Application, dated 5 February 2014. As part of the citizenship application process, a National Police check was performed. This check revealed Mr Torres’ conviction for the offence of “Export tier 2 goods” in 2010.
On 1 April 2014, a delegate of the Minister refused the Citizenship Application on the ground that Mr Torres did not meet the “good character” requirement for citizenship in s 21(2)(h) of the Citizenship Act (Citizenship Decision), essentially because of his conviction in 2010.
On 29 April 2014, Mr Torres applied to the Tribunal for a review of the Citizenship Decision.
ANALYSIS
Section 24(1A) of the Citizenship Act states that the Minister (or a delegate of the minister) must not approve a person becoming an Australian citizen unless the person is eligible to become an Australian citizen under s 21(2) to (8) of the Citizenship Act.
Significantly, s 21(2)(h) of the Citizenship Act states:
21 Application and eligibility for citizenship
…
General eligibility
(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. [Emphasis added]
The phrase “good character” is not defined in the Citizenship Act for the purposes of s 21(2)(h) and, therefore, takes its ordinary meaning.
Most cases have adopted the following definition of “good character” from the Full Federal Court’s decision in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431 - 432 per Lee J[1]:
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: Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25; 117 FLR 455 per Miles CJ at FLR 459-60; Plato Films Ltd v Speidal [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. [Emphasis added]
[1] This statement was made in the context of s 180A(2) of the Migration Act 1958 and associated regulations.
The existence of criminal convictions is clearly relevant in determining “good character”. In Irving, Davies J stated (at 425):
[C]riminal convictions or the absence of them and character references are likely to be an important source of primary information. If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely on the character of the applicant. If the conviction was in the last, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.
In Kakar v Minister for Immigration and Multicultural Affairs [2002] AATA 132, the Tribunal stated 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.
The objective fact of a criminal conviction carries more weight than a review of subjective public opinion on an applicant: Re Mlinar v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771 at 777, [22].
In Prasad v Minister for Immigration and Ethnic Affairs [1994] AATA 326 the Tribunal stated at [7]:
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.
The Australian Citizenship Instructions, as issued on 23 November 2013 (ACIs), provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Citizenship Act and associated regulations. Of particular relevance to this application, is Chapter 10 of the ACIs which discusses the meaning of “good character” for the purposes of the Citizenship Act and associated regulations.[2]
[2] It is well-established that in the exercise of its review function, the Tribunal must take into account any relevant statement of governmental policy which is consistent with the statute concerned, unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640 per Brennan J.
Section 10.1.1 of the ACIs, titled “Background”, states:
…The purpose of this chapter is to provide guidance on the administration of the ‘good character’ provisions under the Act and to define, for administrative purposes, the meaning of ‘good character’.
This chapter also provides a framework for assessing an applicant under the “good character” provisions. It is not departmental policy for decision makers to be bound by a check-list. Decision makers need to look at the merits of each case and to turn their minds to the issues of character until they are “satisfied”, on a reasoned basis, that an applicant is, or is not of good character.
Section 10.1.2 of the ACIs, titled “Summary”, states:
‘Good character’ refers to the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship.
Section 10.3 of the ACIs outlines what is “good character”. In particular, section 10.3.1 of the ACIs, titled “Definition”, states:
In this context, “moral” does not have any religious connotations. 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 good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.
This broad definition means that 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 evidence before their visa application and throughout their migration and citizenship processes.
Section 10.3.4 of the ACIs provides a non-exhaustive list, drawing from the definition discussed above, of characteristics demonstrating that an applicant is of “good character”, including:
· 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)
…
· Not be the subject of any verifiable information causing character doubts
The list contained in section 10.3.4 of the ACIs is to be considered in conjunction with section 10.5 of the ACIs, titled “Framework for making ‘good character’ decisions”.
Section 10.5.2 of the ACIs states that one issue for consideration is whether the applicant has committed an offence and, if so, whether it “serious” or “minor”.
Section 10.5.2. provides that “serious offences” include:
· crimes of violence (e.g. murder, manslaughter, assault, sexual assault, domestic violence, armed robbery, negligent or reckless driving occasioning injury or death)
· war crimes, crimes against humanity and/or 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
· other offences incurring prison sentences of 12 months or more. [Emphasis added]
In contrast, s 10.5.2. of the ACIs states that “minor offences” include:
· shoplifting
· traffic offences resulting in a criminal record
· offences which do not lead to a conviction or sentence.
Section 10.5.2 of the ACIs further provides that consideration should be given to the length of the sentence, if one has been imposed and that:
Any sentence is relevant to a consideration of good character but weight should be given to a serious prison sentence, which is defined in the Act as being a period of at least 12 months. [Emphasis added]
In addition, s 10.5.2 of the ACIs provides that decisions made by courts about the applicant for citizenship, “particularly sentencing remarks”, should be considered and may provide an “insight into the character of the applicant”.
In sentencing Mr Torres, Scott DCJ said (at pp 2-5):
The facts as I find them are as follows. There were four videos on the hard drive of your laptop when you attempted to leave Australia on 3 April 2009, namely 12ANOS.3GP, located in a file directory, 12ANOS.ABI, which was located in the recycle bin, BATANGPIER!!!.3GP, located in the recycle bin, the video (03).3GP, located in the same file directory as the first video.
The first, third and fourth videos were forwarded to you by friends to your Nokia mobile phone and then downloaded by you onto your laptop. 12ANOS.ABI was converted from 12ANOS.3GP by you.
Some time between 12 September 2009 and 3 April 2009, 12ANOS.ABI and BATANGPIER were consigned by you to the recycle bin. I am not satisfied beyond reasonable doubt that when you were at the Perth International Airport on 3 April 2009, you were aware that the two videos in the recycle bin remained on your laptop hard drive.
You gave evidence that you thought that by sending them to the recycle bin by pressing delete, they would be removed from your computer entirely. That was not, in my view, an inherently implausible belief, having regard to the evidence, and I’m not satisfied that you knew that they remained on your hard drive on 3 April 2009, and therefore that the element of intention was made out.
I am, however, satisfied that you knew as at 3 April 2009, when you were at the Perth International Airport and when you went through the first immigration point, that the other two videos, namely 12ANOS.3GP and video (03).3GP, were on your hard drive.
I find that you intended to take those two videos to the Philippines and that you thereby intended to export them. I accept that you did not intend to disseminate, that is, distribute those videos to anyone else, and that they were for your personal use.
Now, as far as the content of the videos are concerned they both depicted child pornography. The most disturbing video was 12ANOS because it depicted a 12-year-old girl who was bound and who was being penetrated by an adult male, both vaginally and also anally. And video (03) depicted a 16-year-old girl performing fellatio on an adult male.
Whilst it might be said that these may not be videos of child pornography of the very worst kind, they, and in particular 12ANOS, demonstrated a victimisation of the children involved, in which there would, in my view, be inevitable harm to the children.
It has been said by this court and the Court of Appeal in this state and courts in other states time and again, that the compilation of child pornography harms and results in the exploitation of children. The demand for child pornography fuels this exploitation for which there can never be any justification or excuse.
Insofar as your culpability, that is, your role is concerned, I accept that these two videos, along with other videos depicting primarily adult pornography, were forwarded to you by your friends, from one mobile phone to another. You viewed 12ANOS, on your own admission, on at least four or five occasions, and you gave evidence that you never viewed the video in total.
That is not, in my view, consistent with at least your viewing of that video on 28 September 2009, when from the computer records which were adduced in evidence, you watched all but a few – 2008, I beg your pardon, when from the computer records which were adduced in evidence, you watched all but a few seconds of that video.
And then subsequently, between September 2008 and April 2009, you of your own admission, watched the video on a - or part of it on a number of occasions. I find that you had these videos for your own satisfaction and gratification and then, as I said, I find you intended to retain them.
…
As I say, the users of child pornography create the market for its production. It is not a victimless crime to view child pornography. The proliferation, that is, the amount of child pornography causes appalling exploitation of children and likely psychological harm to those who participate in these videos.
As I say 12ANOS particularly was a disturbing video, one which you saw on a number of occasions and from which I accept that you obtained gratification. [Emphasis added]
Since the Full Federal Court’s decision in Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649 it has been recognised that the Tribunal cannot go behind a conviction or the essential facts leading to a conviction. Whilst the circumstances surrounding the commission of the offence may be considered by the Tribunal, the Tribunal may not impugn the conviction or the facts upon which it is based.
The description contained in Scott DCJ’s sentencing remarks reveals that the videos on Mr Torres laptop computer were clearly of the kind that the Australian community would find abhorrent and repugnant: refer to the emphasised parts of paragraph 33 above. The Tribunal takes the view that the serious nature of Mr Torres offence prima facie weighs heavily against a finding that Mr Torres is of “good character”. The offence committed by Mr Torres is recognised as a “serious offence” in s 10.5.2 of the ACIs which carries with it a “serious prison sentence” of a maximum of 10 years imprisonment and a fine totalling $275,000 – although, Mr Torres received a recognisance in the sum of $5,000 and a two year Good Behaviour Bond. The serious nature of Mr Torres offence was also recognised by DCJ Scott in his sentencing remarks, set out above in paragraph 33.
Section 10.5.2 of the ACIs lists a number of mitigating factors to be taken into account in deciding whether a person is of “good character” for Citizenship Act purposes, including:
·The length of time between the date of the offence and application for Australian citizenship or between the conviction and the application for Australian citizenship – “In the case of a serious offence, a significant amount of time may have to have passed before the decision maker is satisfied that the person is now of good character”;
·Whether the applicant has accepted responsibility and shown remorse for their conduct;
·How the applicant has behaved since being released from prison or upon completion of any obligations to a court such as a good behaviour bond;
·Whether the applicant has rehabilitated themselves;
·The applicant’s age at the time the offence was committed;
·Whether there any extenuating circumstances relating to the offence; and
·Whether there is evidence of length of employment, stable family life and/or community involvement, these may be indicators of good character – Applicants may wish to provide references from independent people, like employers, attesting to the applicant’s character and whether they support the application for citizenship.
In Assafiri v Minister for Immigration and Border Protection [2014] AATA 35, the Tribunal stated (at [64], [67] and [71]):
There is no formula for determining how much is sufficient time to be satisfied that a person is of good character.
…
It is submitted for Mr Assafari 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.
…
I accept that absence of offending is itself an indicator of a person’s rehabilitation, and more so, as time passes. It counts in Mr Assafari’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.
In relation to the provision of “references” by applicants for citizenship, s 10.6.5 of the ACIs states:
Referee reports can shed light upon an applicant’s character and should acknowledge, where applicable, any offence or other incident and explain why the applicant is nonetheless considered to be of “good character”…
More weight should be given to references made as statutory declarations than those which are not. References should come from members of the community sho have observed the applicant at work or in other contexts, and who are willing to provide contact details. Referees should also explain how long they have known the applicant for, and the context of their relationship.
Mr Torres provided the following character references in support of the Citizenship Application:
·a letter from Mr Torres to the Department, dated 5 February 2014 (Mr Torres Letter);
·a letter from Ms Maria Daniel, Pastor/Director of the Fount of Life Outreach Ministries Inc., to the Department, dated 5 February 2014 (Ms Daniel Letter).
·a letter from Mr Ronald Daplin to the Department, dated 4 January 2014 (Mr Daplin Letter);
·a letter from Mr Romano Orbon to the Department, dated 6 February 2014 (Mr Orbon Letter); and
·a letter from Mr Gilberto Alejandro to the Department, dated 4 February 2014 (Mr Alejandro Letter).
In these character references, each of the referees attest that they are aware of Mr Torres’ offence and that they nevertheless support his application for citizenship. However, it is patently clear from the references that, at the time of providing the reference, they were not fully aware of the nature of the pornographic material contained in the videos on Mr Torres laptop. Similarly, it is clear that they believe that the material, whilst involving child pornography, was at a level far less serious than it was in reality. Furthermore, the referees have accepted Mr Torres’ claim that he received the material from a friend and deleted it straight away which is at odds with the findings of the sentencing Judge - which were based on Mr Torres’ admission and computer records and which established that Mr Torres viewed the videos at least 4 or 5 times initially (almost all the way through, except for a few seconds) and then several times more over a seven month period. Mr Torres evidence before the Tribunal was consistent with DCJ Scott’s findings.
In particular, the Tribunal notes that the Ms Daniel Letter states:
Edson relayed to me the circumstances surrounding the conviction, the occurrence of the situation, his role, the 2 year good behaviour requirement period and the fine that he was required to pay, the cessation of the period and his desire hereon to apply for citizenship.
Edson re-stated the following to me:
He was with a group of friends and as friends do they were having fun having a few drinks and sharing jokes
The boys in the group started sending sms’ jokes/pictures to everyone around.
During this time one of the boys who was a part of the group forwarded a video clip of a part naked child to peoples mobile and as Edson was in the group, he received it as well.
At that time he just deleted it.
Some time later as he had several photos on his phone he downloaded all the photos into his laptop to save them.
Further to this a couple of months later Edson decided to go to the Philippines to see his family.
As a gift to his wife and daughter, he decided to give them his laptop thinking that he could always buy one upon his return.
To do this he decided to free the hard drive of all his work, photos and files which would enable his family then to use the freed up storage space.
Edson stated that the day before he was flying out he started to clear the hard drive and free up storage space.
As the process was taking long and there was a farewell party being organised for him by the friends he was staying with, a friend came to his room and called him to dinner.
Edson stopped the cleaning up of the computer system and thinking he could always resume it again, went to dinner.
However he did not get the opportunity to finish cleaning his laptop.
On the day of his travel, he left for the airport with his laptop and was picked up by the authorities for possession of child pornography.
Edson states that he had absolutely no intention of exporting this or doing anything with the file.
He had not realised that what he thought had been deleted from his mobile phone actually had not been deleted but transferred over to the computer when downloading pictures from his mobile to his laptop.
Edson assures me that there was no intention to sell or even carry the picture overseas as he did not even know that it had downloaded onto the laptop.
He stated that he had to pay a fine and was placed on a 2 year good behaviour watch.
Edson states that he is a father and cannot think of anyone sabotaging the privacy of his own children and would never do it to someone else’s child. He states this would be unbearable.
Edson states that he sincerely regrets the company of friends he kept at the time of this incident and this has taught him a lifelong lesson, one that he will never forget and will always be aware of.
The Mr Daplin Letter states:
Edson stated to me that he had no intention of using or viewing those video again. He transferred the photos and clips from his mobile phone to the laptop and didn’t realized that the deleted images and clips from the phone had also been transferred.
…
Since the incident three years ago, Edson realized how he was a victim innocently receiving a message that had a major implication for his life.
The Mr Orbon Letter states:
He erased the compromising material from his laptop computer, as he had no intention of carrying it around as this was only passed on to him, but failed to remove it from the computer’s recycle bin
Finally, the Mr Alejandro Letter states:
I was totally aware of his case and conviction that happened in 2009 regarding child pornography. Knowing Edson personally for about six years now, I believe to this day Edson was a victim at that time, under the circumstances.
I truly believe in his statement that he had no intension of exporting or reproducing those forwarded videos sent to him on his mobile phone by his friend at that time.
All of the character references are starkly inconsistent with the findings of the sentencing Judge, including findings based on Mr Torres’ own admissions, that:
·Mr Torres knew that two videos were on his hard drive.
·Mr Torres intended to take the videos to the Philippines.
·The content of the videos was far more disturbing and serious than merely “a video clip of a part naked child”
·Upon receipt, Mr Torres viewed the video on at least four or five occasions and viewed all but a few seconds of the video.
·Between September 2008 and April 2009 Mr Torres watched the video on a number of occasions.
·Mr Torres viewed these videos for his own gratification.
·Mr Torres intended to retain the videos.
The character referees have consistently portrayed Mr Torres as a victim. As stated above, at the time of providing the character references in support of the Citizenship Application, the authors were clearly not aware of or fully informed about all of the circumstances of Mr Torres’ offence. It appears that these referees were misled by Mr Torres, who for whatever reason (it was suggested shame and embarrassment) sought to minimise the seriousness of his offence. Ms Daniel told the Tribunal that she was very upset and disappointed when she was later told all of the details of the offence and after reading Scott DCJ’s sentencing remarks. On this basis, the Tribunal finds that these character references should be afforded very limited weight. As submitted by the Minister, not only does the above cast serious doubt on the weight to be given to the references but also goes to Mr Torre general credibility and remorse.
Similarly, Mr Torres Letter indicates a refusal by Mr Torres to properly accept his own culpability. In the Mr Torres Letter, Mr Torres states:
In April 2009 I was travelling to the Philippines to visit my family, when I was stopped at the airport for two video clips relating to child pornography that were on the hard drive of my laptop. I explained to the officials that I had no intention of carrying these, or transporting these video clips with any intent to export or exploit such material. They were transferred from my mobile phone to my laptop when I was downloading all the information from my phone to my laptop. They were sent to me by a then friend and I deleted them. However, I did not realise they would still be on the phone hard drive, even after I deleted them.
Mr Torres provided the following evidence in support of his application:
·A Statutory Declaration from Mr Torres, dated 7 August 2014 (Mr Torres Statutory Declaration);
·A Statutory Declaration from Ms Daniel, dated 7 August 2014 (Ms Daniel Statutory Declaration);
·A Statutory Declaration from Mr Daplin, dated 6 August 2014 (Mr Daplin Statutory Declaration);
·A Statutory Declaration from Mr Orbon, dated 7 August 2014 (Mr Orbon Statutory Declaration);
·A Statutory Declaration from Mr Alejandro, dated 6 August 2014 (Mr Alejandro Statutory Declaration);
·A Statutory Declaration from Mr Morgan, dated 8 August 2014 (Mr Morgan Statutory Declaration);
·An expert report from Dr Phil Watts, clinical and forensic psychologist, dated 30 May 2014 (Dr Watts Expert Report); and
·A letter from Mr Morgan, Human Resources Manager, Coates Hire West, dated 26 October 2010 (Mr Morgan Letter).
Each of the abovementioned people gave evidence at the hearing of Mr Torres’ application.
In the Mr Torres Statutory Declaration, Mr Torres states at [28]:
In 2008 my friends and I were having a party. We used to always have parties for any reason. We were all having drinks and mucking around. My friend sent via Bluetooth videos to everyone around. The video clips was of children. I did not realise at that time the body was a child. I thought it was an adult as the boys were mucking around. After some time I was downloading pictures from my phone to the laptop and everything got downloaded from my phone. Instead of deleting the videos immediately, I made an error of judgment by keeping them and watching them.
and, later, at [38]
I was very sorry for what happened. I truly did not realise children were in the video. I felt ashamed and broken for what I did to myself and to my family specially my kids. I could not believe that as a human being I could even look at that kind of video.
This statement is completely at odds with the finding of Scott SCJ that:
It involves the attempt by you to export child pornography in respect of which the girl in one of the videos was 12 years of age. Notwithstanding your evidence and notwithstanding that the only view of the girl was her lower torso, it must, in my view, have been patently obvious to you that she was of tender age and well under 18 years of age. [Emphasis added]
Mr Torres also relies upon Dr Watts Expert Report and his verbal testimony. The Dr Watts Expert Report was based on Mr Torres’ single attendance upon Dr Watts. Dr Watts states that he read the sentencing remarks and indeed states a [19] that “Mr Torres described the circumstance along similar lines as to the Sentencing Remarks”. However, what is then reported by Dr Watts at [22] is clearly inconsistent with the sentencing remarks. Dr Watts states:
In regards to paedophilic interest, Mr Torres indicated that the videos were sent from friends and that they were looked at during a period where he was not seeing his wife. He indicated that until he looked at the videos he was uncertain as to what they contained, but a particular hard-core video involving somebody who is clearly a child he deleted. He said that he is of Filipino background, the contrast between Asian porn stars and Western porn stars is the fact that they can look much younger and still be an adult. I am satisfied from my discussions with him that the viewing was in regards to the sexual component, rather than the child component. There are no other aspects suggestive of any interest in Child Pornography.
What is problematic about the Dr Watts Expert Report is that he has also accepted Mr Torres’ evidence that he deleted files and was not aware that the person in the video was a 12 year old girl. Those findings, which are both in contrast to the finding of Scott DCJ, underpin the remainder of the Dr Watts Expert Report.
The Mr Torres Statutory Declaration, Dr Watts Expert Report and the other statutory declarations and verbal evidence provided in support of Mr Torres’ application all need to be read in light of the conviction and the critical findings of Scott DCJ, including that Mr Torres was well aware that the videos involved children and that Mr Torres viewed them for his own gratification: Daniele.
Section 10.5.4 of the ACIs, titled “Weighing up the decision”, 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 of whether an applicant is of “good character” requires the consideration of an aggregate of qualities.
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.
…
A decision maker needs to look holistically at an applicant’s behaviour 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 has committed a serious offence (such as taking the life of another person, sexual assault, war crimes, crimes against humanity, genocide or crimes against children) the lasting/enduring period would need to be much longer, potentially over a period of many years. 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. [Emphasis added]
In Mr Torres case, factors which demonstrate “good character” include:
·He has only had one employer (Coates Hire) since arriving in Australia in March 2008 and Mr Morgan, the Human Resources Manager at Coates Hire, described Mr Torres as an exemplary employee and that he could not “fault him”;
·Since arriving in Australia, Mr Torres has developed a group of loyal and close friends, mainly through his involvement in his local church;
·He says he is committed to his wife and children who still reside in the Philippines and to bringing them to Australia from the Philippines when his finances permit; and
·He seems extremely committed to his local church (FOLOMI) of which he has become a director and a leader, he seems dedicated to the charitable work they do, as well as to other charitable Christian cause in Australia and overseas.
Having said that, the offence for which Mr Torres was convicted was very serious, involving an attempt to traffic child pornography including at least one video which the Australian community would clearly find abhorrent and repugnant. Whilst Mr Torres has some limited expressions of remorse they largely seem to be self-pitying and have not acknowledged either the extent of his involvement nor the well-documented damage caused by the proliferation of child pornography – it is well understood that it is not a victimless crime.
Mr Torres has consistently sought to minimise the offences and his involvement, including:
·Denying his knowledge that the videos involved children - despite involving a child of 12 who the Judge found it must have been obvious was a child of tender age;
·Denying that he watched the video all the way through despite computer records establishing that he had on at least 4 or 5 occasions;
·Repeatedly advising his friends that he had deleted the files and hadn’t watched them despite, on his own admission before the District Court, that had after initially viewing them, watched them again several times over a seven month period;
·Continually claiming that he had not intended to transport the videos overseas despite the clear finding of the District Court that it was his intention to do so.
Like the sentencing Judge, the Tribunal does not accept Mr Torres’ claim that he did not know the girls in the two videos that were not deleted from his laptop, and in relation to which he was convicted, were children. When pressed at the hearing to say whether he understood what the titles of the two videos (i.e. “12ANOS” and “BATANGPIER”) meant, Mr Torres acknowledged that “ANOS” meant something “similar to years” to him and “Batangpier” meant something like “child” in his native language, Tagalog. Mr Torres continuing failure to acknowledge that he knew that the girls in the two videos were underage does nothing to assist his credibility. Another witness, Mr Ronald Daplin, who was born in the Philippines but is now an Australian citizen, seemingly had a much better command of the English language than Mr Torres. When he was asked what he understood “Anos” and “Batangpier” to mean, he told the Tribunal that “Anos” was Spanish for “how old” and “Batangpier” meant “child pier” in Tagalog (the main language spoken in the Philippines).
Mr Torres has only been free of obligation to the court since the Good Behaviour Bond expired in August 2012, being just over two years ago. In light of the seriousness of Mr Torres’ offence, insufficient time has passed between the expiration of the Good Behaviour Bond and the Citizenship Application. As stated, the ACIs state provide that “in the case of a serious offence, a significant amount of time may have to have passed before the decision maker is satisfied that the person is now of good character”.
In conclusion, the Tribunal finds that, on balance, Mr Torres is not of “good character” pursuant to s21(2)(h) of the Citizenship Act and should therefore, not be granted Australian Citizenship. In reaching this conclusion, the Tribunal acknowledges with approval the following comment of DP Breen in Fenn v 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 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 year’s time when he can demonstrate a longer period of positive contribution to the Australian community.
The Tribunals’ decision to affirm the Citizenship Decision (and, thereby, refuse the Citizenship Application) is not intended as a second form of punishment for Mr Torres: Fenn. As stated, it has been just over two years since the Good Behaviour Bond ended. This is an insufficient length of time in which to properly assess Mr Torres behaviour in light of the seriousness of his offence and his continuing inability to completely acknowledge and accept the truth of what he did. The Tribunal’s decision to affirm the Citizenship Decision does not prevent Mr Torres from applying for citizenship again in the future when he has had a longer period to demonstrate a positive contribution to the Australian community and an enduring pattern of good behaviour. In other words, Mr Torres conviction is not a permanent bar on him being granted citizenship.
DECISION
For the above reasons, the Tribunal affirms the Citizenship Decision.
I certify that the preceding 63 (sixty three) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh …(sgd) T Freeman.......
Associate
Dated 28 October 2014
Date of hearing 23 October 2014 Counsel for the Applicant
Solicitors for the Applicant
Mr D Blades
Mr V Nguyen
Legal Care Australia
Representative for the Respondent Mr A Gerrard Solicitors for the Respondent Australian Government Solicitor
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