Egan v Minister for Immigration and Border Protection - [2017] AATA 2705

Egan and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 2705 (14 December 2017)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2016/3271

GENERAL DIVISION )
Re: Finian Egan
Applicant

And: Minister for Immigration and Border Protection
Respondent
ORDER
TRIBUNAL:               The Hon. Justice Stevenson, Deputy President
DATE:   24 January 2018
PLACE:                     Sydney
IT IS DIRECTED, in accordance with subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, that the text of the decision in this application is to be altered such that the reference to “5 May 2014” in paragraph [1] be replaced with “5 May 2016.”
..............................[sgd]................................................
The Hon. Justice Stevenson, Deputy President
Division:GENERAL DIVISION
File Number:           2016/3271
Re:Finian Egan
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:The Hon. Justice Stevenson, Deputy President
Date:14 December 2017
Place:Sydney

For these reasons, I conclude that it would not be contrary to the public interest that the applicant retain his Australian citizenship. Accordingly, I will set aside the decision of the Minister.
............................[sgd]................................................
The Hon. Justice Stevenson, Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – Citizenship – Applicant granted Australian citizenship – Applicant later convicted of serious sexual offences – Applicant’s Australian citizenship revoked by the Minister – Whether it would be contrary to the public interest for the Applicant to remain an Australian citizen – Tribunal finds that the correct and preferable decision is to allow the Applicant to retain his Australian citizenship – Tribunal finds it would not be contrary to the public interest that the Applicant retain his Australian citizenship – decision set aside
LEGISLATION
Australian Citizenship Act 2007, ss 3, 34(2)
CASES
DPP v Smith [1991] 1 VR 63
McKinnon v Secretary, Department of Treasury [2005] 145 FCR 70
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385
Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197
REASONS FOR DECISION
The Hon. Justice Stevenson, Deputy President
14 December 2017
THE PROCEEDINGS

The applicant seeks a review of a decision made on 5 May 2014 by the Minister for Immigration and Border Protection whereby his Australian citizenship was revoked pursuant to section 34(2) of the Australian Citizenship Act 2007 ("the Citizenship Act"). The Minister made this decision following the conviction of the applicant by a jury on several counts of sexual assault of three female minors. On 20 December 2013, Tupman DCJ sentenced the applicant to a term of imprisonment for eight years, with a non-parole period of four years.
Section 34(2) of the Citizenship Act provides as follows:
(2)The Minister may, by writing, revoke a person's Australian citizenship if:
(a)the person is an Australian citizen under Subdivision B of Division 2 (including because of the operation of section 32); and
(b)any of the following apply:
(i) the person has been convicted of an offence against section 50 of this Act, or section 137.1 or 137.2 of the Criminal Code , in relation to the person's application to become an Australian citizen;
(ii) the person has, at any time after making the application to become an Australian citizen, been convicted of a serious offence within the meaning of subsection (5);
(iii) the person obtained the Minister's approval to become an Australian citizen as a result of migration-related fraud within the meaning of subsection (6);
(iv) the person obtained the Minister's approval to become an Australian citizen as a result of third-party fraud within the meaning of subsection (8); and
(c)the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.
In a Statement of Reasons for revocation of Australian citizenship dated 5 May 2016, the Minister expressed his conclusion as follows:
28. I have balanced the interests of the Australian community against the hardship likely to be caused to [the applicant], should his Australian citizenship be revoked. I have considered [the applicant’s] advanced age, his ties to Australia and the hardship that may flow to him.
29. Judge Tupman remarked that [the applicant] had shown no evidence of remorse and contrition and that due to his age [the applicant’s] chances of reoffending are remote. However, [the applicant] would not have been granted Australian citizenship had the department known about his offending behaviour at the time. [The applicant] has committed serious sexual offences, over a lengthy period of time, against children. In addition, these offences involved a serious abuse of power as they were committed in his capacity as an ordained Catholic priest.
I am therefore satisfied it would be contrary to the public interest for [the applicant] to remain an Australian citizen. Therefore, I have decided to revoke [the applicant’s] Australian citizenship.
There was no issue that the applicant was convicted of "a serious offence” for the purposes of section 34 of the Citizenship Act. The applicant contended that it would not be "contrary to the public interest" that he retain his Australian citizenship and sought that this Tribunal exercise its discretion in his favour. The respondent contended that it would be contrary to the public interest that the applicant remain an Australian citizen and sought confirmation of the decision of the Minister.
BACKGROUND
The applicant was born on 8 November 1934 in the Republic of Ireland and is presently 83 years of age. He was ordained as a priest in the Catholic Church in June 1959, at the age of 25 years, and came to Australia in September 1959. The applicant has lived in Australia since 1959 and since has returned to Ireland only for relatively short holiday periods.
The applicant retired as a parish priest in January 2000 and ceased to perform all priestly duties in 2009. In these proceedings, the applicant has the support of the most Reverend Peter Comensoli, the Bishop of Broken Bay, who indicated that he is "the church authority responsible for [the applicant]".
On 8 October 1992, the applicant made an application for Australian citizenship, which was granted on 29 October 1992. He became an Australian citizen on 26 January 1993.
The first group of criminal convictions of the applicant related to offences which took place in 1961 and 1962, when he was approximately 26 or 27 years of age and the complainant a girl of [Omitted pursuant to s 35, Administrative Appeals Tribunal Act 1975 (“Omitted”)]. The second group of convictions concerned offences which took place in October 1971 and January 1972, when he was aged 36 or 37 years and the complainant a girl of [Omitted]. The third group of convictions related to offences which took place in 1987, when the complainant was aged 52 years and the complainant a girl of 16 years.
The applicant was charged with these offences in 2012 and stood trial in the District Court of New South Wales in 2013. As noted, he was sentenced to a term of imprisonment in December 2013.
At all times, the applicant has maintained that he is innocent of these offences. At his criminal trial, as was his right at law, he pleased 'not guilty' and elected to give no evidence.
In these proceedings, the applicant maintained that he is innocent of the offences for which he was convicted in 2012. In his affidavit of 15 December 2016 he deposed, inter alia:
7. …I pleaded not guilty to all charges and still maintain that I was wholly innocent, of all those charges …
In his oral evidence the applicant said words to the effect:
I confirm that I have never accepted the correctness of my convictions and maintained my innocence.
It is well established that this Tribunal cannot impugn the convictions or sentence of the applicant in the present proceedings: Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385. I did not understand the applicant to offer any challenge to that proposition.
In sentencing remarks of 20 December 2013, Tupman DCJ said, inter alia, in relation to the offences concerning the 10 or 11 year old girl in 1961 and 1962:
[Omitted]
Her Honour said also:
[Omitted]
Tupman DCJ accepted that these three incidents were [Omitted]. Her Honour accepted further that [Omitted].
The sentencing judge took the view that this complainant was [Omitted] because she was isolated from her family. Her Honour noted that the complainant had been placed in the care of the Catholic Church, due to [Omitted]. As noted further by Her Honour, the complainant received no protection from persons within the Church.
Tupman DCJ considered that these three offences [Omitted]. Her Honour observed that the maximum penalty for these offences at that time was five years imprisonment, whereas the maximum term at the time of sentence would have been 20 years.
In relation to the convictions for sexual assault and rape in 1971 and 1972, Tupman DCJ described the [Omitted] year old complainant as [Omitted]. At the time of these offences, the applicant was the assistant priest at the church attended by the complainant and her family and he was a frequent visitor to their home.
Tupman DCJ recorded the facts in relation to these convictions as follows:
[Omitted]
In relation to the facts of the conviction of the applicant for rape of this complainant, Tupman DCJ said as follows:
[Omitted]
Her Honour stated:
[Omitted]
Again, Her Honour accepted that these two incidents were “not isolated offences” but rather were "part of a continuous course of conduct". Her Honour again observed that "the pattern of sentencing was for significantly lower terms of imprisonment" in 1971 and 1972 in comparison to the present time.
In relation to the third group of offences which occurred in 1987, Tupman DCJ noted that the applicant was the parish priest of the family of the 16 year old complainant who was a member of a church youth group at that time. Her Honour recorded the facts of these offences as follows:
[Omitted]
Her Honour again accepted that these incidents were "part of a course of conduct" on the part of the applicant and expressed the view that his status as the parish priest of the family of this complainant aggravated the seriousness of the offences. Her Honour said:
Of course indecent assault is an offence capable of covering a very broad range of physical acts. It is the breach of trust involved in these particular offences before me that makes them more than the low range …
On 13 October 2016, the applicant submitted a "Declaration of Alienage", by which he attempted to relinquish his Irish citizenship. During the hearing before me, senior counsel for the applicant said words to the effect that he "does not submit that he is a stateless person now".
CONSIDERATION
As noted, it was common ground that the applicant was convicted of "a serious offence” for the purposes of section 34 of the Citizenship Act. He was convicted of the offences in 2013, which is well after his application for Australian citizenship dated 8 October 1992. He was sentenced to imprisonment for a period in excess of 12 months, which is the statutory definition of the term "serious prison sentence".[1] He committed the offences before he applied for Australian citizenship.
[1] Section 3 of Citizenship Act.
Accordingly, the first issue for determination is whether it would be contrary to the public interest for the applicant to retain his Australian citizenship. If I am satisfied that the applicant's retention of his Australian citizenship would be contrary to the public interest I am then required to determine whether I should exercise my discretion so as to affirm or set aside the decision of the Minister. In DPP v Smith [1991] 1 VR 63, the Supreme Court of Victoria defined the term "public interest" as follows:
The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and the well-being of its members. The interest is therefore the interests of the public as distinct from the interest of an individual or individuals.
In McKinnon v Secretary, Department of Treasury [2005] 145 FCR 70, Tamberlin J stated as follows, in relation to the term "public interest":
The public interest is not one homogeneous, undivided concept. It will often be multifaceted and the decision maker will have to consider and evaluated the relative weight of these facets before reaching a final conclusion as to where the public interest resides … In some circumstances, one or more considerations will be of such overriding importance that they prevail over all others. In other circumstances, the competing considerations will be more finely balanced so that the outcome is not so clearly predictable.
In his Statement of Reasons for Revocation of Australian citizenship, the Minister wrote inter alia:
15. In determining whether it is contrary to the public interest for [the applicant] to remain an Australian citizen; it is reasonable for my consideration to include, amongst other things, the nature and the seriousness of [the applicant’s] offending, the impact of the offending on the victims, mitigating factors and any risk of reoffending, ties to Australia and the impact revocation of Australian citizenship would have on [the applicant].
I take no issue with this statement of principle.
I have referred above to the views expressed by Tupman DCJ as to the seriousness of the offences committed by the applicant. Her Honour had the assistance of Victim Impact Statements from all three complainants, in which they addressed the effects upon them of the applicant's offences.
In relation to the victim of the offences committed in the 1960s, her Honour said:
[Omitted]
In relation to the victim of the offences committed in the 1970s, her Honour said:
[Omitted]
In relation to the victim of the offences which occurred during the 1980s, her Honour said:
[Omitted]
As noted in the respondent’s Statement of Facts, Issues and Contentions, a requirement for Australian citizenship is that a person be of good character. The respondent contended that it is likely that the applicant would have been refused Australian citizenship in 1992, if his offences had been known to authorities at the time of his application.
I am inclined to accept the submissions on behalf of the respondent in relation to the seriousness of the offences and the impact upon the victims; lack of good character on the part of the applicant and the likelihood that he would have been refused Australian citizenship if his offences had been known to authorities at the time of his application. On the other hand, I consider that there are cogent factors to which I will now refer which militate against revocation of the applicant’s Australian citizenship.
In my view, the first such factor is the age and poor health of the applicant. He is now 83 years of age and suffers from a number of medical conditions which impact adversely upon his health. In a letter dated 14 November 2013 the applicant's general practitioner, Dr Anne Lowe, summarised his health problems as follows:
"cardiovascular disease for which he requires medication
prostate cancer in 2005
bowel cancer for which he requires a colonoscopy every two to three years
polymyalgia rheumatic
asthma
osteoarthritis which led to a hip replacement in 2012
skin cancer
small bowel obstruction
osteoporosis
eye disease"
The applicant deposed that, since his incarceration, he has been admitted to hospital for treatment for a hernia condition and had skin cancers removed from his left arm. He deposed further that in mid-2016 he suffered from pneumonia. He also deposed to deterioration in his eyesight and hearing since his imprisonment. There was no challenge to this evidence.
In a report dated 5 December 2016 a psychiatrist, Dr Ishrat Ali, opined that the applicant suffers from an anxiety disorder. Dr Ali reported as follows:
He has depressive symptoms but a lot of them were situational. I came up with a diagnosis of an anxiety disorder as he has excessive anxiety and panic symptoms.
Accordingly, I am satisfied that the applicant is an elderly and unwell person who will require professional care for multiple medical conditions for the remainder of his life. I accept the submission on behalf of the applicant, to the effect that his state of health has deteriorated since he was sentenced to imprisonment in December 2013.
In my view, the second mitigating factor is that both Tupman DCJ and Dr Ali assessed that there is a low risk of re-offence on the part of the applicant. In her sentencing remarks, Tupman DCJ said:
[Omitted]
In his report of December 2016, Dr Ali opined as follows:
I consider his chances of reoffending are very low due to the following reasons:
1 if you look into his history the offences were committed in a particular setting, he was a parish priest and he came in contact with people and this was committed in a particular setting. He is now retired and that kind of setting will not be available to him.
2 as a result of advancing age, his anxiety problems, familiar tremors and multiple physical problems his general ability to perform these acts is very low
3 he has been sentenced and he has punished for what he has done and this will always be on his mind and make it difficult for him to reoffend.
I consider that the third mitigating factor is that the applicant has the benefit of support from Bishop Comensoli, in terms of the management of his life after release from prison. In a letter dated 16 June 2016, Bishop Comensoli wrote as follows:
I recognize and accept the very serious nature of [the applicant’s] crimes over a lengthy period of time and the breach of trust and power given to him as a pries t. I readily acknowledge the profound pain and suffering caused to those he abused and the diocese has endeavoured to assist the victims with whom it has had contact and the communities likewise harmed. This is an ongoing commitment of the Diocese and of me personally.
[The applicant] has not been permitted to present himself as a priest or perform any priestly functions since 2009. The Catholic Church will not allow him to exercise any priestly ministry again or present himself as a priest in the future.
[The applicant] is an Irish citizen but he has had little connection with Ireland, apart from it being the country of his birth. He entered a seminary in his teens and came to Australia within weeks of his ordination as a priest. He has spent his entire adult life living and working in and around Sydney. As a priest, he has no spouse or children, and since the death of his father decades ago, his only contact with Ireland has been holiday visits every few years. He has a sister, who is a religious nun, living in the United States. His "familial" support is the diocese of Broken Bay and friends who live in northern Sydney.
Bishop Comensoli wrote further in this letter:
Currently, and as long as he remains a priest, [the applicant] is under my jurisdiction. Consequently, I can retain some supervisory control over his whereabouts and living circumstances. While ever he is under my jurisdiction these restrictions will remain in place. However if [the applicant] were returned to Ireland, the Diocese would not be able to supervise him in any way. I note that the judge at his trial stated that the chances of him reoffending are remote. However the risk of reoffending will increase when a person is isolated. If [the applicant] were to return to Ireland after his release from prison, I believe that he would be very isolated.

The applicant also has support from Father Vincent Casey, who has been his friend since 1982. In his affidavit of 16 December 2016, Father Casey deposed inter alia:
4. I was in the courtroom to hear the Witness Impact Statements and the judge's comments at sentencing, so I am aware of the crimes of which [the applicant] has been found guilty and their impact. I know I must accept the judgment of the jury but I cannot reconcile the man I lived and worked with and have known for almost 35 years with the person who has been found guilty of these crimes.
5. Because of his conviction [the applicant] will never again be able to present himself as a priest or perform any priestly duties but, because he is a diocesan priest, he will always be the responsibility of the Bishop of the Diocese of Broken Bay…
Father Casey deposed further:
8. I have expressed my concerns for my friend and mentor, [the applicant], but my primary concern is for the safety of children. I believe that children would be safer if [the applicant] remains in Australia. Here he would be living in a secure location decided by the Bishop of the Diocese of Broken Bay, under the Bishop's supervision and with people around him who know him and his story. In Ireland he would be anonymous, isolated, sick and with no supervision.
The applicant deposed in his affidavit of 15 December 2016 that he would have no support from family or friends in Ireland. He deposed that his two surviving brothers have made clear that they have no wish for any contact whatsoever with him and that his two sisters are nuns, who live in religious communities. There was no challenge to this evidence.
It thus seems to me that the applicant would be subject to a degree of supervision, if he lives in the accommodation proposed by Bishop Comensoli, but he would most likely be isolated and unsupported if he were denied this opportunity. In my view, it is significant that both Bishop Comensoli and Father Casey are aware of the offences of which he has been convicted and the term of imprisonment which was deemed appropriate by the District Court of New South Wales.
I attach significance to the fact that both Bishop Comensoli and Father Casey considered that there is a need for supervision of the applicant and the protection of children, upon his release from prison. There was no evidence of any alternative source of such supervision and protection.
CONCLUSION
The outcome of these proceedings is by no means straightforward or clear-cut and involves an exercise of discretion. Ultimately, I conclude that "the correct and preferable decision" is to allow the applicant to retain his Australian citizenship. A significant consideration in my determination is the support and supervision which the applicant will receive from his superior in the Catholic Church and, consequently, the existence of mechanisms for the protection of children.
I have balanced this consideration against the factors which were relied upon by the respondent and also taken into account the additional mitigating matters to which I have referred above in these reasons. The outcome of these proceedings has involved a delicate balancing exercise of very serious and weighty considerations.
For these reasons, I conclude that it would not be contrary to the public interest that the applicant retain his Australian citizenship. Accordingly, I will set aside the decision of the Minister.

I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of The Hon. Justice Stevenson, Deputy President.

.........................[sgd].......................................
Associate
Dated: 14 December 2017

Date(s) of hearing: 28 July 2017

Counsel for the Applicant: Mr I Davidson SC and Mr P Bolster

Solicitors for the Applicant: Ms W Ahmed, Buttar Caldwell & Co Solicitors

Solicitors for the Respondent: Mr A Markus, Australian Government Solicitor

Date(s) of hearing:	28 July 2017
Counsel for the Applicant:	Mr I Davidson SC and Mr P Bolster
Solicitors for the Applicant:	Ms W Ahmed, Buttar Caldwell & Co Solicitors
Solicitors for the Respondent:	Mr A Markus, Australian Government Solicitor