Fenn v Minister for Immigration and Multicultural Affairs
[2000] AATA 931
•25 October 2000
LHJS and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 842 (30 October 2015)
Division
GENERAL DIVISION
File Number
2014/2423
Re
LHJS
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Regina Perton, Member
Date 30 October 2015 Place Melbourne The Tribunal sets aside the decision under review and remits the application to the respondent with the direction that the applicant meets section 21(2)(h) of the Australian Citizenship Act 2007 at the time of its decision.
[sgd] ............... .........................................................
Regina Perton, Member
CITIZENSHIP - application for Australian citizenship - conviction for indecent assault – suspended sentence - whether applicant of good character at time of decision
Australian Citizenship Act 2007 s 21(2)(h)
Crimes Act 1958 (Vic) s 39
Sex Offender’s Registration Act 2004 (Vic)
Australian Citizenship Instructions Chapter 10
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Re Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771
Re Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326
Re Steele and Minister for Immigration and Multicultural Affairs (AAT 12319, 21 October 1997)
Re Zheng v Minister for Immigration and Citizenship (2011) AATA 304
Victorian Law Reform Commission Report on Sex Offenders’ Registration, April 2012
REASONS FOR DECISION
Regina Perton, Member
30 October 2015
LHJS is a citizen of Syria. He first arrived in Australia on a prospective spouse visa in November 2009. His subsequent marriage to an Australian citizen broke down before he gained permanent residence. He was granted a permanent protection visa on 15 October 2011. LHJS applied for citizenship on 26 November 2013.
A delegate of the Minister for Immigration and Border Protection (the Minister) refused LHJS’s application for citizenship on 7 May 2014. Citizenship was refused because the delegate was not satisfied that LHJS was of good character at the time of the delegate’s decision.
On 13 April 2012 LHJS was convicted in the Melbourne Magistrates’ Court of two counts of indecent assault. He was sentenced to a term of imprisonment of six months which was wholly suspended for 18 months. The offence resulted in LHJS’s automatic registration for eight years under the Victorian Sex Offender Registration Act 2004. He is required to report to Victoria Police periodically during that eight year period.
On 22 May 2014 LHJS applied to this Tribunal for review of the decision to refuse his application for citizenship.
LEGISLATIVE BACKGROUND
Section 21(2) of the Australian Citizenship Act 2007 (the Act) provides:
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
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(h) is of good character at the time of the Minister’s decision on the application.
Chapter 10 of the Australian Citizenship Instructions (the Instructions) sets out the policy guidelines which are to be applied by the Minister’s delegates in assessing applications for the grant of Australian citizenship under the provisions of s 21 of the Act. The Tribunal is required to have regard to the policy set out in the Instructions, unless there are cogent reasons why it should not (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634). The latest version of the Instructions was issued in 2015.
Good character is not defined in the Act. The relevant paragraphs of the Instructions provide:
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10.1.2 Summary
‘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…
Character considerations under the Migration and Citizenship Acts are not the same and it is possible that an applicant could have passed the migration character test but still not be of good character under the Citizenship Act. …
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10.3 What is good character
10.3.1 Definition
Unlike s501 of the Migration Act, the term “good character” is not defined in the Act. Therefore, the Federal Court (FC) and the AAT have used the ordinary meaning of the words, and made reference to dictionary definitions. Most cases have adopted the following definition from the Full FC judgment in Irving v Minister for Immigration, Local Government and Ethnic Affairs ((1996) 68 FCR 422; at 431-432):
Unless the terms of the Act and regulations require some other meaning be applied, the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion… A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
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 evident before their visa application and throughout their migration and citizenship processes.
In Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, Deputy President Breen discussed the role of the character requirement in a citizenship application (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
10.3.2 Community standards
In Zheng v Minister for Immigration and Citizenship ((2011) AATA 304), Forgie DP found the Preamble to the Act could provide assistance in identifying what Australian society considers to be right and proper behaviour for the purposes of assessing good character ((2011) AATA 304 at [119]).
The Preamble to the Act sets out the meaning of Australian citizenship:
Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:
(a) by pledging loyalty to Australia and its people; and
(b) by sharing their democratic beliefs; and
(c) by respecting their rights and liberties; and
(d) by upholding and obeying the laws of Australia.
After considering the text of the Preamble, Forgie DP stated ((2011) AATA 304 at [120]):
In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do.
The role of the citizenship decision maker is to assess, to the best of their ability, whether the applicant is of good character at the point of decision. Such an applicant is likely to uphold the Pledge, should they be approved for citizenship.
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The Instructions list a number of factors that decision-makers should have regard to where a person has a criminal record. They include:
10.5.2 Factors to take into account
Behaviour – why the applicant might not be of good character
Offences
·Has the applicant committed any offences and if so, did they admit that in their citizenship application? … Note: Decision makers are to accept a Court’s findings concerning an offence to be correct and to put weight on it. It is not the role of the decision maker to “retry” the offence, even if the applicant claims that they were wrongly convicted. If the conviction or sentence has been appealed and the appeal decided, the decision maker should take the outcome of the appeal into account.
·If the applicant has a criminal history, further police checks and, if relevant, an overseas penal check may be necessary….
·If the applicant has committed an offence, was it serious or minor. Serious offences include, but are not limited to:
§crimes of violence (such as murder, manslaughter, assault, sexual assault, domestic violence, armed robbery, negligent or reckless driving occasioning injury or death)
§war crimes, crimes against humanity 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.
·Minor offences include:
§shoplifting
§traffic offences which have been included in a criminal record
§offences which do not lead to a conviction or a sentence.
·Were there victims of the offence? In particular, were the victims vulnerable people like children, the elderly or the disabled, or others who trusted the applicant?
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·Was the offence pre-meditated?
·Consider the length of the sentence, if one has been imposed. 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.
·Are there any ongoing obligations in relation to the sentence received, such as a good behaviour bond following conviction? Note: Section 24(6) prohibits citizenship being approved in such circumstances ...
·Look at decisions made by courts about the applicant, particularly sentencing remarks, as they give an insight into the character of the applicant. Sentencing information can be obtained by application to the relevant court…
·How many offences have been committed? Was it a one-off or is there a pattern of criminal behaviour?
§a pattern of behaviour, even of repeated minor offences, shows a disregard for the law and indicates that the applicant may not “uphold and obey” the law if citizenship is conferred on them.
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Mitigating Factors – could the applicant be of good character anyway
Once the behaviour of the applicant has been assessed, the decision maker should turn their minds to whether there are any mitigating factors to be taken into account.
·What is the length of time between the date of offence (if known) and application for Australian citizenship, or between conviction and application? Note: There can be a delay between the time of the offence and conviction (if any) for a variety of reasons, such as delays in being charged and/or protracted court cases. Each case is to be assessed on its own merits and issues such as the seriousness of the offence, the nature of the offence, whether another person was harmed and the rehabilitation process needs to be assessed. 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.
·Has the applicant accepted responsibility and shown remorse for their conduct?
·How has the applicant behaved since being released from prison or upon completion of any obligations to a court such as a good behaviour bond?
§it is important to see how the client behaves when they are free from the obligations of such a sentence or bond. A reasonable amount of time will need to have passed in order for the person to have established a pattern of good behaviour and thus justify a conclusion that the person is now of good character and is upholding Australian laws.
·Has the applicant rehabilitated themselves? Have they made a conscious effort to obey and uphold Australian laws? For example, have they undertaken drug and/or alcohol counselling, an anger management course, a program or counselling for sex offenders or any other program which addresses risk factors relating to their offending? Have they moved away from bad influences, for example by disassociating themselves from a peer group?
·What was the applicant’s age at the time the offence was committed? If the applicant committed the offence at a young age, the commission of the offence may be given less weight depending on the nature of the crime and any subsequent offences. It may be possible that the person has matured and gained greater respect for upholding the law than as a youth, and as such, any criminal offences from that period of their life are less indicative of their current character.
·Were there any extenuating circumstances relating to the offence? For example, an offence committed under duress or under periods of psychological disturbance (including involuntary effects of medication or temporary psychological conditions but not including under the influence of recreational drugs), may be given less weight. Any claims of mental illness should be supported by a Psychiatrist’s report….
·Is there 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. It is open to decision makers to contact individuals who have provided a referee report for the applicant.
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10.5.4 Weighing up the decision
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.
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.
In Prasad and Minister for Immigration and Ethnic Affairs ([1994] AATA 326 at [7]), the AAT said:
"a decision about whether a person is of good character requires the consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness."
A decision maker needs to look holistically at an applicant’s behaviour over 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 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.
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10.6.5 References
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". However, decision makers should note the inherent bias in any reference which is submitted by an applicant in support of their citizenship application.
More weight should be given to references made as statutory declarations than those which are not. References should come from members of the community who 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. Decision makers are encouraged to contact referees and ask them questions to test their knowledge of the applicant, their relationship etc. if the referee provides adverse information in these discussions, this information should be put to the applicant for comment.
It is preferable that references are not submitted from family members. However, if they are, less weight should be given to them because of the societal expectation that family members would tend to support one another and play down unacceptable conduct….
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IS LHJS OF GOOD CHARACTER?
LHJS told the Tribunal that he believes he is of good character. In a statutory declaration dated 30 January 2015 and in oral evidence, LHJS described, from his perspective, the circumstances that led to the offence for which he was convicted. On Tuesday 15 February 2011 he had parked his ex-wife’s uncle’s car near a northern suburbs station. He had been working for the uncle that day. LHJS said he saw a young woman who he thought was aged in her 20s alight from a bus. LHJS said that he approached the young lady and asked if he could talk to her. He stated that she stopped and talked to him for about 15 minutes. He said that he told her about his background, work and education. LHJS said that she had told him that there was a big age gap between them but not that she was 16 years of age until late in their discussion.
LHJS said that the girl did not seem scared or disturbed by him. He said that they were standing about 1.5 metres apart in a public area. He asked if he could hold her hand and he said that she put her hand in his. LHJS then kissed her hand. The young lady said that she needed to leave and he stated that he told her she was free to do so. He asked her if he could ask her family for consent to get to know her. LHJS said that he told her his mobile telephone number. He said that he also told her that if either she or her family were not interested in him, there was no need for further communication.
After the young lady left, LHJS went into the station area and waited for a time. A little while later, a gentleman riding a bicycle holding a golf club approached him. He swore at LHJS. A lady then arrived stating that LHJS wanted to take her daughter overseas. The two people were the young lady’s parents who lived not far from the station. The young lady remained in the car. While this was taking place, a station attendant called the police who took LHJS to the local police station where he was questioned for several hours.
LHJS stated that much of the area near the station had security cameras but unfortunately not the area where the last few minutes of his conversation with the young lady took place. He was adamant that contrary to the evidence given by the young lady, he had not held her around the waist nor had he attempted to kiss her on the forehead.
On 13 April 2012 LHJS was convicted in the Melbourne Magistrates’ Court of two counts of indecent assault and sentenced to six months’ imprisonment wholly suspended for 18 months. He was also required to undertake 100 hours of unpaid community work. LHJS was also required to undergo treatment and/or rehabilitation including a mental health assessment and treatment as directed, offending behaviour program/s as directed and any other treatment and rehabilitation as directed including assessment for the Sex Offenders’ Program. His conviction and sentence resulted in his automatic registration on the Sex Offenders’ Register for eight years. On 8 November 2012 the community corrections order was removed as LHJS had satisfactorily completed the requirements.
LHJS maintained that he only had honourable intentions towards the young lady. He was adamant that he did not kiss her on the lips or forehead. He said that after the young lady voluntarily left his company, she rang a girlfriend, who then rang the young lady’s younger sister, who then told the parents that the young lady had been assaulted. He stated that he did not leave the station and did not realise that he had done anything wrong.
LHJS is now studying for a psychology degree at university. He has also worked as a furniture removalist for a time using his own van. Other occupations have included working as a car detailer and in a restaurant. LHJS said that he had been paid low wages in the latter occupations but was desperate for work. LHJS obtained a degree in applied mathematics in Syria and worked as an IT manager in Syria and the United Arab Emirates.
LHJS said that he has one sister in Jordan. His mother is still in Syria and his other sister has died. He said that he wished to visit Jordan where he hoped he could meet his mother but was concerned at doing so on a Syrian passport. He described the difficulties faced by the family due to his father’s detention for political reasons from when LHJS was six years old. He also described what had gone wrong in previous relationships including in his marriage to an Australian citizen.
LHJS provided a large number of referee reports to the respondent and to the Tribunal attesting to his character. Several of the referees also gave oral evidence. The referees included lecturers at a Victorian university where he is now studying psychology and previously undertook a year-long intensive English language course; international students he has befriended and assisted; a counsellor from the Victorian Foundation for Survivors of Torture who was his therapist; his general practitioner; Australian citizen men and women whom he has befriended; people for whom he moved furniture who later became and remain friends and former housemates.
All of the referees who gave evidence indicated that they knew of LHJS’s background and his conviction. Some of their comments are listed below:
Female University Lecturer (reference received in November 2014)
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Through numerous conversations with [LHJS], I found him to be a genuine, kind-hearted person who cares deeply for disadvantaged members of society. He has shown total commitment to his studies; much more so than the average student. I honestly believe that [LHJS] would make a sound contribution to Australian society if he is given the opportunity to complete his studies and work in the future as a professional in his chosen field as an Australian citizen….I therefore whole-heartedly support [LHJS]'s application for Australian citizenship…
A male friend he met through a mutual friend of his and LHJS (reference dated 11 November 2014)
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I have known [LHJS] since October 2012. I met him on the first day of my arrival from NSW to Melbourne…
I moved from two places before I settle in the current place; [LHJS] helped me twice to move my household using his van. Also, when I moved to Melbourne I did not have any household, [LHJS] at time offered me some of his stuff such as a couch, kitchen tools and appliances, study desk, and whatever I needed that he was able to give.
After about two years, although [LHJS] has become very busy with his study at university, he always tries to find time to come and visit me. When he comes he always cooks for both of us, washes the dishes, makes tea for both of us, and helps me with the study if I ask him to do.
I know about the incident that happened with [LHJS] in 2011 and the charge he faced based on that incident. [LHJS] told me about it many times while he was trying to help me to be more aware of the Australian culture and legislation, and that he does not like anyone of us as new arrivals to face the same experience he had faced and then to face the same difficulties he has been facing since that incident…
Teachers at a university teaching the Certificate IV in English as a Second Language (ESL) for Further Study
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For the whole of 2012, [LHJS] was our student in …the full-time one-year accredited course…whose purpose was to prepare students…for immediate entry into profession-oriented courses at Australian tertiary institutions…
[LHJS] proved to be a most impressive student in this course throughout 2012, and passed all subjects units with distinction…His English-language skills impressed as being of a high standard. We found him to be a highly intelligent and diligent person who interacted well with us and with his 17 class mates, who were form a wide variety of cultural backgrounds. [LHJS] also impressed us as a man of good character, who is committed to Australia and likely to prove a valuable asset to this country.
Therapist at the Victorian Foundation for Survivors of Torture dated 10 September 2014 who also gave oral evidence
…Foundation House is a not-for-profit organisation based in Melbourne that provides a range of psychosocial services to people from refugee backgrounds who have survived torture or war related trauma. I worked with [LHJS] for over 12 months providing mostly fortnightly psychological assistance to address a range of issues [LHJS] had identified wanting support with including significant childhood traumatic experiences, adult experiences of persecution and relational difficulties. I am writing this letter to support [LHJS]’s appeal to be granted citizenship and to attest to his character as well is my professional opinion that he will not committed any crimes of assault or harassment in the future.
[LHJS] was and continues to be very committed to improving his mental, social and physical well-being. He showed the utmost respect to all professional and clients at Foundation House. His attitude was of deep appreciation for the support provided to him which assisted him greatly during a difficult period of his life. He was punctual, friendly, humble and honest during sessions and with all staff as well as clients. I believe [LHJS] was serious about developing his understanding of trauma, of cultural differences in communication and relationships in Australia and how to resolve some of his childhood experiences so he could move forward into the future to have more healthy and meaningful relationships. His positive commitment to develop his interpersonal skills and understand how his early relationships impacted how he formed new relationships especially with women was consistent with a respectful and responsible adult, not someone who lacks the self-awareness or self-control to not commit crimes against women or children. [LHJS] is currently studying psychology to continue his interest and developing himself. This again demonstrates his desire to deepen his understanding, as well is to connect and help others heal from difficult experiences. [LHJS]’s cognitive ability and compassion to work through his problems, challenges and relationships make him a great asset to the Australian community not a potential threat.
[LHJS] and I discussed his charge of offending against a minor. [LHJS] expressed remorse for the impact of his actions for both himself and the teenage girl and her family. He openly discussed how he was perceived and the incongruence with his intentions. [LHJS] took responsibility in sessions for both his thinking which had informed his actions. I believe he has developed greater empathy and sensitivity to others from the experience. [LHJS] consistently presented to his appointments with the police post court and took it upon himself to learn more about the Australian laws and legal system so as to never make the same mistake again. He realises he was ignorant of the systems and laws before, but now he is confident that he knows the cultural and legal expectations for appropriate behaviour…
[LHJS] understands, shows respect for and feels passionately about ensuring the rights, safety and laws created to protect the people and environment of Australia. We have discussed the rights and responsibilities of citizenship in several sessions. I continue to support [LHJS]’s application and believe he will be a citizen who contributes greatly to the rich multicultural community of Melbourne and seeks to make Australia a wonderful place to live for all people. I believe I have addressed all concerns related to [LHJS]’s character and risk of committing a future crime against anyone with a male or female and I believe he is guided by a strong moral core of what is right and wrong thinking and behaviour.
LHJS’s general practitioner in a statement dated 27 February 2014
[LHJS] has been attending this medical practice regularly since January 2013.
He has had contact with the medical and allied staff and, throughout, has displayed a polite and respectful attitude to all.
We have had no concerns regarding his honesty and integrity and, as such, believe him to be of good character and support his application for citizenship.
Female friend in a statement dated 9 November 2014 (also gave oral evidence)
I have known [LHJS] since early 2011. I met him through my brother as they are friends since 2010. We used to visit each other weekly, and the three of us to have a good time, cook and enjoy the company. [LHJS] as well has met my parents on a few occasions and they hold a great respect to each other. We honour [LHJS] as a close, respectful, supportive and loyal friend; he is one of those extraordinary people; barely to meet someone like him nowadays.
I have hardly had male friends as I have some difficulties to trust guys based on past experience, but [LHJS] eventually has changed my view and he is always been trying to help me out to trust people around me and give more opportunity to start again and have the life I deserve from his point of view. He always encouraged me never to give up to constantly try to change my view to be happier and more successful. He is even motivated me to look after my physical health. He continuously tries to be a good help to make me have helped the life physically, emotionally and mentally….
I know about the incident that happened to [LHJS] at time. He told me straight away everything that happened to him as he considers me is a very close friend… However, indeed that has never changed how I perceived and believe about [LHJS]. Today we are closer as friends; actually I consider [LHJS] as the best friend I ever had in my life. He is also still very close friend to my brother…, And occasionally sees my parents. My parents like to send to [LHJS] some fruits from their garden, and [LHJS] does the same always and send some of what he bakes and other stuff to my parents. [LHJS] shows a great respect to my family. I still believe in [LHJS] morals and values. [LHJS] is always supportive, caring, honest, nice, patient hard worker, punctual, creative, very smart and well organized, independent, confident, very clean and tidy person at his house; even when he visits us always helps cooks for us as he knows how much we like his cuisines and baking, and he never hesitates to help whenever requested…
The conviction was extremely shocking to me. I actually know [LHJS] manners and morals very well; he is a moderate respectful Muslim, holds a deep respect to everyone, very protective to anyone, at least that is what I have ever seen since I met him. [LHJS] always talks about building family, it is the only dream [LHJS] retains to have a real wife, children and build a family that he never had in his life because of his life experience and [LHJS] father circumstances. I know how [LHJS] is serious about it and does not like to play games, to waste time will to put people down. I’m sure that a dramatic misunderstanding had occurred and he might have been taken for a grant for his lack of knowledge of some aspects of our culture….
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A lady (maternal carer) who met LHJS when moving her furniture and who gave oral evidence (statutory declaration dated 30 November 2014)
I have known [LHJS] since 18th of July 2012. I met him in a business capacity when he moved my mother and my belongings… The job [LHJS] had to carry out as both difficult and demanding in nature as we have been left in the lurch by another moving company and cleaners...
The time of exceptional strips he maintained a caring professional manner, did an outstanding job and even in the very limited time went to the trouble of rescuing emotionally precious family photos from the skip. This impressed me at the time for its compassion. The photos were simply handed over with a kind comment of the importance of such things. No unprofessional intrusion into private life was made, a comment to applicable to our previous removal is to cross the line on a number of occasions. As a single woman caring for her elder in-firmed mother (suffering dementia) it is common to feel intimidated in certain situations, or at least vulnerable. [LHJS] took the time to talk politely with my mother, when many would ignore her ramblings… On a numerous occasion I have suggested his company to other people. His costs are kept to a minimum also, understanding the difficulties of some people to pay for such services.
Overtime, we have become friends. He informed me in details of the incident that had taken place when I enquired over why he had not applied for Australian citizenship. Although obviously a very delicate and painful experience for him explain more what had happened at length and with minimal prejudice. I consider myself to a decent judge of character. Behaviour that resulted in the charges seem to be completely innocent and the actions of someone: kind, lonely, and unaware (at such an early stage of residency in Australia) as to the social norms. Nothing made me the feel uncomfortable. In fact I invited him into our home to play with our dog and offered him a cold drink on that very same occasion. I did not let many people into the house. The reason being due to past experiences, what I have been thought, my own suspicious nature and the fact we are two women, one elderly and in-firmed in the company of one small dog living alone in a large house.
I have enjoyed the companionship [LHJS] has given. The gentle compassionate and understanding way he interacts with my mother and the kind, insightful, generous time he spends with her. The genuine friendship I share with him and the wonderful way he interacts with our beloved dog is trustworthy, kind and caring
The knowledge of the fore mentioned incident has had no negative impact on my value of our friendship nor on my trust in his gentle nature. If anything it has only increased the esteem I hold this individual in for many reasons:
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His landlady in a statement dated 1 November 2014
I have known [LHJS] since 2011 when he moved to Carlton to share a house with my friend…
When my friend’s house got sold I stored their things at my house in 2013. [LHJS] did the move. Then [LHJS] asked if he could stay while he looked for a new place. I agreed and he stayed as a friend, free, for two months. He was very hard working around the house. He cooked, cleaned at times as my house yard was messy at the time because there were big changes happening in my family…. He often supplied food and cooked for the whole family. I needed support at the time and he was great.
He found his own place and after we stayed friends and he visited often to see the family and visit his dog whom we adopted
when he started University he asked if he could stay with us and pay rent. I agreed and he has been with us since May this year, however [LHJS] spend most his time at his university, studying very hard to accomplish a good knowledge and better future. Once again he is a great support, always helping if I need it. Cooks, keeps clean, pays his money on time and is good and loyal friend and supporter of family in general.
He has had a very hard time over the years I have known him. He has suffered a lot of loss, grief and hard adjustment to changes. I know about his conviction and feel I understand his mind on that day. He did not understand our customs and meant no harm. He understands clearly now. I have been very comfortable to have him stay here with my children, without hesitation.
He has great progress and I find him a very honest and moral person and I feel blessed to have him as a friend. My children love him, he is a very kind person in general. He is helped us to understand about people from other cultures and how we all want the same thing, love, peace and a family.
A female friend, who has a background in senior marketing positions and corporate affairs (statement dated 2 November 2014)
I have known [LHJS] since mid-2011 at which time he moved into my home is a housemate in North Carlton. During the next two years, [LHJS] was a reliable, helpful person always willing to step forward if there was work to be done or a problem to solve …
When I moved my terrace in Carlton, [LHJS] insisted on handling the move of my large household single handed. He did an amazing job over three days in searing heat and would not accept help, saving me over $3000. He assisted me to transport goods to the auction houses several times etc. And when I left Melbourne to go to Bali he drove me to the airport and pick me up on my return twice.
Over time [LHJS] became a friend and a very supportive one. So why eventually became aware of much of his history since his childhood, the trials and the challenges he had transitioning into his new country both practically and culturally. He had a very difficult time in the beginning, the majority of it due to some callous individuals who used him and kept him confused and unaware of the services and support available to him. Overall he faced his enormous challenges with courage and dignity, rarely faltering. In this specific case of his conviction, I was there throughout the process and I know his intentions were honourable on that day. This is my firm belief that it was, at worst, an error of judgement fuelled by his loneliness and lack of knowledge of our laws of engaging persons unknown to us in public. He was completely unaware that a great misunderstanding had taken place. There were a number of anomalies in the legal process, not least of all the two important witnesses were not called both of whom could have given important evidence…. I know him well enough to believe that he meant no harm on that day and this to me was evidenced by the fact that he waited at the scene patiently for almost an hour as he was convinced once he explained his intentions that it would be cleared up. He could have left any number of times outside the station with no detection, but chose to go inside and sit and patiently wait until the authorities arrived to explain instead.
Nevertheless the result stands of course, and he has faced it well enough, but I do feel compelled to pass on my observations as it is my firm belief that an injustice was done. A law was broken and ignorance of it is no defence. However, he had an innocence about him in his early time here that was quite beautiful in its own way due to his early history and cultural background. He has learned since about our society and our culture has worked hard to do so and I fear his pill view of the world has changed with this in some ways. I have no doubt other people have put forward their views on his intelligence and people skills in general, which are substantial.
His lack of comprehension of our culture caused him enormous problems and suffering in his early time in Australia and he has worked hard to rectify this across all areas.
[LHJS] is a good, hard-working person, particularly kind, and he can turn his hand to almost anything and do it very well. It will make a very positive contribution to our society and I have confidence that he will fulfil his dream of building a family and a career that he can be proud of…
In Re Steele and Minister for Immigration and Multicultural Affairs (AAT 12319, 21 October 1997) at [26], the Tribunal stated that character is to be judged objectively against ordinary community standards of moral behaviour. In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 Davies J said at 425:
…the term ‘good character’ is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. In another sense, it refers to the individual’s reputation or repute... But criminal 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 upon the character of the applicant…
In Re Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771 the Tribunal said at [17]:
…
"Good character"…should be given the same meaning as it is in s 501 of the Migration Act 1958(Cth)…The standard of good character should be even higher for citizenship cases than s 501 matters because of the importance of citizenship and the greater responsibilities and privileges attached to it...
In Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385 Branson J stated 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.
The Tribunal takes into account LHJS’s version of the incident that led to his conviction. However, the Tribunal notes that he had legal representation in the Magistrates’ Court although LHJS questioned the calibre of his lawyer’s advice. It is not appropriate for the Tribunal to go behind the conviction as pointed to by Branson J in Ali above.
The Tribunal has before it statements made by various officers involved in interviewing and charging LHJS and notes of interviews with the victim and the friend she rang after leaving LHJS. It also has the notes of LHJS’s interview by the police. The matter was heard in the Magistrates’ Court and there is no transcript of the reasons why the magistrate chose to impose the sentence that was given.
The victim impact statement of the young lady involved dated 28 March 2012 indicates, amongst other things, that:
After the incident, I felt really unsafe and vulnerable. The idea that just coming home from work on a weeknight I was putting myself in danger was really quite confronting for me. I spent a lot of time trying to wrap my head around the concept of that just being a young woman made me susceptible to these kind of attacks. I still feel very uncomfortable being out in public by myself. I start to panic internally for my phone battery is flat when I’m alone, because I feel helpless like anything could happen to me and I wouldn’t be able to contact anyone for help, all the issues I did not previously have. It’s like a constant anxiety. I feel like this has affected my family and friends because I became more needy and dependent on them and their company for things I used to do alone, even going to the newsagents I would need someone to come with me so I didn’t have another incident…
As indicated earlier LHJS was convicted of two counts of indecent assault for which he received a suspended sentence of six months wholly suspended for 18 months. The Tribunal notes that section 39 of the Crimes Act 1958 (Vic) provides the following description of indecent assault:
(1) A person must not commit indecent assault.
Penalty: Level 5 imprisonment (10 years maximum).
(2) A person commits indecent assault if he or she assaults another person in indecent circumstances—
(a) while being aware that the person is not consenting or might not be consenting; or
(b) while not giving any thought to whether the person is not consenting or might not be consenting.
In applying the Instructions and the findings in Irving and Re Mlinar, the Tribunal is satisfied that the conviction involving indecent assault of a sixteen year old and resulting in a term of imprisonment of six months, although wholly suspended, represents a serious breach of the law which reflects adversely on LHJS’s character. However the Tribunal also notes that the penalty imposed in this case is relatively light in relation to the maximum sentence that can be imposed for that offence.
The Tribunal accepts that LHJS had no prior criminal convictions and has had none since completing his sentence, and that there appear to be no outstanding matters involving him since the expiry of his sentencing obligation in late 2013. The Tribunal also accepts that he has expressed remorse for his conduct and has maintained a stable work history. The respondent suggested that LHJS’s insistence that the end of the incident with the young lady was not as she perceived it suggested he was not remorseful. However based on his evidence and that of many of his referees, the Tribunal is satisfied that he does regret the events of 15 February 2011.
The respondent suggested that LHJS’s continuing presence on the Victorian Register of Sex Offenders is also a relevant factor to take into account in assessing his character. The Tribunal initially found that submission somewhat persuasive but then discovered that the registration on that list automatically follows a conviction of indecent assault where the victim was aged 16 years. It is not a discretionary decision by the Magistrate.
In April 2012 the Victorian Law Reform Committee handed down a report on the sex offenders’ registration scheme. Extracts from the overview follow:
…
The scheme has been operating since October 2004.
Under the Sex Offenders Registration Act 2004, all adults sentence for committing sexual offences involving the child are automatically included in a register of sex offenders….
Registration is not part of the offender’s sentence. It is a separate scheme administered by Victoria Police. It is intended to be protective, not punitive.
Registered sex offenders living in the community must keep the police informed about their personal details and whereabouts for a period determined by the Act…
…
Existing research indicates that child sex offenders do not comprise a homogenous and coherent group. For example, commonly held assumptions that child sex offenders have high rates of recidivism and predominantly prey upon children who were unknown to them are not supported by evidence. Research overseas has found the sex offenders have lower recidivism rates and less criminal history than offenders who commit nonsexual serious crimes. Most serious violent and sex offenders do not have previous convictions for offences of that type, and nor are they convicted again for offences that type.
…
As not all sex offenders present the same risk of re-offending, the automatic registration of every adult who commits a sexual offence against a child has extended the reach of the scheme to offenders were highly unlikely, based on any reasonable assessment, to offend again.
The Sex Offenders Registration Act proceeds on the assumption that all people convicted of the same offence pose the same risk of reoffending and should have the same reporting obligations for the same period. The approach is generic and not based on individual assessments of risk. The current undifferentiated, and generic rather than individual, method of selecting who should be registered has led to a Register which appears to have outstripped initial estimates of size.
…
Details about people who might be potentially dangerous sex re-offenders sit alongside those of offenders who pose no risk of harm, with police in child protection authorities having no reasonable means of allocating risk ratings, and investigative resources, to particular offenders.
The long reporting periods impose a significant burden on the police to compile and manage information that may be of little operational value in many instances…
The Tribunal has considered the factors set out in the Instructions for decision-makers where there is a criminal record. Because the victim in this matter was under 18 years, the offence is considered serious. The offence does not appear to have been premeditated. The sentence does not constitute a serious prison sentence which is defined in the Act as being a period of at least 12 months. At the time of the Tribunal’s decision, it has been two years since the period of suspension of the sentence expired. As discussed above, LHJS remains on the sex offenders register as he was automatically put on that list because of the description of his offence and the victim’s age. Unfortunately there are no sentencing remarks available as the matter was conducted in the Magistrates Court. The offence appears to have been a one-off.
In terms of the mitigating factors and the criteria set out in the Instructions, the Tribunal notes the offence occurred in February 2011 and the conviction in April 2012. While the respondent submitted that LHJS has not accepted responsibility and shown remorse for his conduct because he continues to deny some aspects of his behaviour towards the end of his encounter with the young lady, the Tribunal is satisfied that he has done so. The various referee reports and LHJS’s own evidence leads the Tribunal to accept , on the balance of probabilities, that he is remorseful and regrets his conduct.
LHJS’s evidence and that of his referees clearly indicate that he is a person who is regarded highly by people he has been in contact with over the past four years. LHJS has had assistance from a counsellor at Foundation House who has spoken highly of him and the appropriateness of his being granted citizenship. Many other people have also supported him. He is undertaking tertiary studies in psychology with the aim of helping others in the community when he graduates.
LHJS was aged 40 years when the offence was committed. Therefore considerations of his youth are not relevant. LHJS and his supporters have spoken of cultural differences as one of the factors leading to the offence. The Tribunal is not convinced that this is so but does accept that LHJS did not think he was doing anything wrong in approaching the young lady who voluntarily stopped to talk to him in a public place where the offence occurred.
There is evidence of LHJS’s involvement in the community which has been spelled out in the statements of his supporters. All of his many referees supported his application for citizenship and all but one who gave oral evidence was aware of his conviction although their memories of the details were not always consistent with those given by LHJS.
The Tribunal is satisfied that, despite his conviction, LHJS is, on the balance of probabilities, of good character at the time of its decision, some two years after the expiry period of his suspended sentence. The Tribunal finds, on balance, that LHJS satisfies s 21(2)(h) of the Act at the time of its decision.
DECISION
The Tribunal sets aside the decision under review and remits the application to the respondent with the direction that the applicant meets section 21(2)(h) of the Australian Citizenship Act 2007 at the time of its decision.
I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member [sgd]........................................................................
Associate
Dated 30 October 2015
Date of hearing 22 and 23 June 2015 Applicant In person Solicitors for the Respondent Amanda Graham, Clayton Utz
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