Galuak and Minister for Immigration and Border Protection (Citizenship)
[2018] AATA 2301
•19 July 2018
Galuak and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 2301 (19 July 2018)
Division:GENERAL DIVISION
File Number(s): 2017/4380
Re:Jal Galuak
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Senior Member D. J. Morris
Date:19 July 2018
Place:Melbourne
The Tribunal affirms the Minister of Immigration and Border Protection’s decision dated 22 June 2017 to revoke Mr Jal Galuak’s citizenship.
.............................[sgd]...........................................
Senior Member
Catchwords
CITIZENSHIP – Revocation of citizenship by conferral – whether person would be rendered stateless – whether contrary to the public interest for the person to remain a citizen – serious rape – long period between offence and conviction – crimes against the person – pattern of other crimes – mitigating circumstances – whether discretion should be exercised – decision to revoke affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 33, 37
Australian Citizenship Act 1948 (Cth)(Rep), s 13
Australian Citizenship Act 2007, Preamble, ss 3, 5, 27, 21, 28, 34, 46, Sch 1
Migration Act 1958 (Cth), s 501CA
The Nationality Act, 2011 (South Sudan), ss 5, 8, 9
The Sudanese Nationality Act 1994 (Sudan)
The Sudanese Nationality Act (Amendment) 2011 (Sudan), s 10(2)Transitional Constitution of the Republic of South Sudan, 2011, Article 45(1)
Cases
Bruce Sherritt v The Queen [2015] VSCA 1
Director of Public Prosecutions v Jal Galuak [2015] VCC 874
Director of Public Prosecutions v Smith [1991] VicRp 6
Jal Galuak v The Queen [2015] VSCA 300
McKinnon v Secretary, Department of Treasury (2005) 88 ALD 12
O’Sullivan v Farrer (1989) 168 CLR 210
Re Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Re Osorio and Minister for Immigration and Citizenship [2007] AATA 59Re TRHL and Minister for Immigration and Border Protection [2015] AATA 803
Secondary Materials
United Nations Conference on the Status of Stateless Persons, Convention Relating to the Status of Stateless Persons, done at New York on 28 September 1954, New York – Article 1
REASONS FOR DECISION
Senior Member D. J. Morris
19 July 2018
Mr Jal Galuak was born in Bentiu in what was then Sudan. The evidence is that his date of birth is 1 August 1993. On 18 June 2007 Mr Galuak’s mother, Ms Theb, applied for Australian citizenship by conferral. In her application, Ms Theb listed the Applicant, and two of his brothers, as a child under 16 whom she wished included in her application. Ms Theb became an Australian citizen on 14 November 2007. Ms Theb was a ‘responsible parent’ within the meaning of that term under the Australian Citizenship Act 2007 (the Act), and under section 28(4) the Act, as a child under 16 of Ms Theb, Mr Galuak also acquired Australian citizenship on that day.
On 26 June 2015, following a guilty plea on his part, Mr Galuak was convicted in the Victorian County Court of the crime of rape, with the offence having been committed on 8 April 2007. The Court sentenced him to a term of imprisonment of five years.
Mr Galuak’s conviction brought him into the scope of section 34(2)(b)(ii) of the Act which confers on the Minister for Immigration and Border Protection (the Minister) the discretionary power to revoke a person’s Australian citizenship if the person has been convicted of a ‘serious crime’ under section 34(5) of the Act.
However, the Minister may not revoke Australian citizenship under section 34(2) of the Act if the power to revoke relies only on section 34(2)(b)(ii) and the Minister is satisfied that the person would, if the Minister were to revoke the person’s citizenship, become a person who is not a national or citizen of any country. The Tribunal will use the internationally accepted term of ‘stateless’ in these reasons to describe a person in this circumstance.
If the Minister is satisfied that exercise of the discretion would not have the result of rendering the person stateless, the Minister must also be satisfied under section 34(2)(c) that it would be contrary to the public interest for the person to remain an Australian citizen.
On 22 June 2017 the Minister decided to revoke Mr Galuak’s Australian citizenship. Mr Galuak has sought a review of the Minister’s decision before the Tribunal.
The hearing took place on 9 May 2018. Mr Galuak was represented by Dr Kamal Karunadasa, of TAI Lawyers. The Respondent was represented by Mr Christopher McDermott of counsel. Mr Galuak gave evidence and was cross-examined. Both parties submitted written Statements of Facts, Issues and Contentions.
The Tribunal took into evidence documents lodged by the (then) Department of Immigration and Border Protection (the Department) under section 37 of the Administrative AppealsTribunal Act 1975 (the AAT Act) (T-documents). The Tribunal also took into evidence the following documents lodged by the Applicant:
(a)Psychology report of Mr John Belieu, psychotherapist and clinical counsellor, relating to Miss Angelina Theb, dated 15 September 2017;
(b)Support letter for Mrs Theb from Wek Dador, Liech Nuer Community Association of Australia Inc.;
(c)Testimonial for the Applicant from Pastors Warren Paltridge and James Luk of St. Peter’s Lutheran Church, Frankston, dated 20 August 2017;
(d)Certificate relating to Angelina Theb from Dr Vicki Miezis of Langpark Medical Clinic, dated 4 August 2017; and
(e)Letter of reference for the Applicant from Anita Carter, Director of Student Welfare, St. Peter’s College, Cranbourne.
After the hearing, at the Direction of the Tribunal, the Respondent lodged a Supplementary Statement of Facts, Issues and Contentions dated 23 May 2018 and the Applicant lodged a response on 28 May 2018. All these documents were taken into account.
The legislative framework
The provisions relating to the revocation of Australian citizenship by conferral are set out in section 34(2) of the Act:
Citizenship by conferral
(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.
(3) However, the Minister must not decide under subsection (2) to revoke a person’s Australian citizenship if:
(a) the Minister may revoke the person’s Australian citizenship under that subsection only because of the application of subparagraph (2)(b)(ii); and
(b) the Minister is satisfied that the person would, if the Minister were to revoke the person’s Australian citizenship, become a person who is not a national or citizen of any country.
Time citizenship ceases
(4) If the Minister revokes a person’s Australian citizenship, the person ceases to be an Australian citizen at the time of the revocation.
Serious offence
(5) For the purposes of this section, a person has been convicted of a serious offence if:
(a) the person has been convicted of an offence against an Australian law or a foreign law, for which the person has been sentenced to death or to a serious prison sentence; and
(b) the person committed the offence at any time before the person became an Australian citizen.
(Footnotes omitted.)
The term ‘serious prison sentence’ is defined in section 3 of the Act to mean a sentence of imprisonment for a period of at least 12 months.
Common ground between the parties
It was contended in written submissions by the Respondent, and agreed by Dr Karunadasa at the hearing, that it was common ground that Mr Galuak was, at the time the Minister made the decision, an Australian citizen within the meaning of Subdivision B of Division 2 of Part 2 of the Act (that is, an Australian citizen by conferral) and had been so when his mother became an Australian citizen on 14 November 2007. It was not in dispute that section 34(2) is relevantly engaged.
Mr Galuak’s mother included him on her application for Australian citizenship made on 18 June 2007. Before the Tribunal (T14, p 145) were the Reasons for Sentence of Her Honour Judge Wilmoth of the County Court of Victoria in Director of Public Prosecutions v Jal Galuak [2015] VCC 874. On 26 June 2015 Her Honour said, at paragraph [33]:
I sentence you to five years’ imprisonment. I fix a new non-parole period of three years and six months. That is the time which you must now serve before being eligible for parole.
The Applicant exercised his right to appeal the sentence but it was not set aside by the Court of Appeal (Jal Galuak v The Queen [2015] VSCA 300).
The Tribunal finds, on the evidence, that Mr Galuak is a person for whom section 34(2)(b)(ii) is engaged and for whom sections 34(2)(b)(i),(iii) or (iv) are not engaged.
First step – a threshold issue: Would revocation of Australian citizenship render the Applicant stateless?
Before considering the question of whether or not it would be contrary to the public interest for Mr Galuak to remain an Australian citizen, it is necessary to consider the threshold question of whether revoking his Australian citizenship would render Mr Galuak stateless. If the answer to that question is in the affirmative, it is not necessary to go on to consider the further questions, because the Minister is precluded from revoking citizenship of a person if statelessness of the person would be the result.
The Tribunal notes that Article 1 of the 1954 Convention Relating to the Status of Stateless Persons provides that a ‘stateless person’ is a person who is not considered as a national by any State under the operation of its law. It is therefore necessary to examine, in this case, the nationality law of South Sudan.
The Respondent submitted that the Minister was satisfied that Mr Galuak was a national of South Sudan under The Nationality Act, 2011 (Laws of South Sudan) and there was no information before him to suggest that the Applicant’s nationality had been revoked.
The Applicant submitted that the Minister may only be satisfied of Mr Galuak’s nationality if further steps are taken by Mr Galuak and officers of the Australian High Commission in Kenya to secure some proof of nationality. Dr Karunadasa contended:
1. The issue of statelessness
…
b…It is submitted that, though the Minister may be satisfied that the Applicant’s comments as to his ancestry and place of birth are genuine, this does not automatically render it the case that the South Sudanese government would hold that the Applicant was a national under the Nationality Act: the Applicant has never been issued any documents establishing South Sudanese nationality or citizenship, nor has the South Sudanese expressly confirmed their recognition of his nationality.
c. It is further noted that civil unrest and conflict has resumed in South Sudan, with it further being accepted in the country information that there is a real risk that a person who has had their Sudanese nationality stripped, like the Applicant, will not be recognised by South Sudanese authorities as a national of South Sudan in either a formal or substantive way – particularly so when the person has not ever resided in South Sudan or has not resided in South Sudan for a long time and does not possess the requisite documentation to establish either Sudanese or South Sudanese…
d. It is submitted that this gives rise to a real risk of statelessness, and that accordingly the Minister decided wrongly in concluding that he was satisfied the Applicant would not be rendered stateless: at the very least, confirmation from the South Sudanese government that the Applicant would be accepted as a national or citizen upon removal should have been sought from officials from the High Commission in Kenya.
e. As was argued in the Applicant’s submissions to the Minister [at the earlier stage of making representations prior to the decision to revoke Australian citizenship] the appropriate question is not whether nationality of another country could be claimed if the Applicant took further, voluntary steps, but rather, whether or not the Minister was satisfied the Applicant would not be rendered stateless in the circumstances at the time of making the decision. At the time the Minister decided to revoke the Applicant’s citizenship under s 34, the Applicant was not specifically recognised by any other nation as a national or citizen.
…
Consideration
Before the Tribunal (T10, p 60) was a submission made on behalf of Mr Galuak to the Department dated 8 July 2016 by Ms Hollie Kerwin, a lawyer from Victoria Legal Aid. It relevantly states:
…
7. Mr Galuak was born on 1 August 1993 in Bentiu in what was then Sudan, where he and his family resided until 2000. In 2000, aged 7, Mr Galuak, with his mother and three brothers, fled Sudan for Egypt as a result of the civil war. Mr Galuak’s father stayed in Sudan and his family have not had contact with him for many years, suspecting that he was kidnapped or that he has died. Australian government officials who interviewed Mr Galuak’s mother regarding her protection claims, including the death of Mr Galuak’s father, accepted that her “claims are quite strong”.
8. In 2005, after a 5-year period in Egypt, he entered Australia under the Special Humanitarian Program with his mother and his three brothers. Before migrating, four of Mr Galuak’s other siblings had died and the whereabouts of his fourth sibling was unknown. He was then aged 11. He has lived continuously in Australia since that date.
…
Ms Theb had written that Mr Galuak was born in Bentiu but in a subsequent document Ms Theb put his place of birth as Khartoum (the capital of Sudan). In the hearing, Mr Galuak confirmed in response to a direct question from the Tribunal that he had been born in the town of Bentiu.
At the time of Mr Galuak’s birth, Bentiu was in the southern part of the Republic of Sudan (Sudan). On 9 July 2011, Sudan was geographically split when the new independent state of the Republic of South Sudan (South Sudan) came into being. Bentiu is a town in Rubkona County, in Northern Leich, which is one of 28 states that make up the new state of South Sudan.
The Sudanese Nationality Act 1994 (Sudan) as amended by The Sudanese Nationality Act (Amendment) 2011 (Sudan) states, at section 10(2):
Sudanese nationality shall automatically be revoked if the person has acquired, de jure or de facto, the nationality of South Sudan.
The Tribunal, exercising the power under section 33(1)(c) of the AAT Act, obtained a copy of an English translation of The Nationality Act, 2011 (South Sudan) (the South Sudan Nationality Act), printed and published by the Ministry of Justice at Juba and dated 7 July 2011.
Section 5 of the South Sudan Nationality Act is the Interpretation clause, and provides that:
“South Sudanese National” means a person who satisfies the eligibility criteria provided under Chapters III and IV of this Act.
Chapter III of the South Sudan Nationality Act relates to Nationality by Birth. Section 8(1) states:
8. Eligibility Requirements
(1) A person born before or after this Act has entered into force shall be considered a South Sudanese National by birth if such person meets any of the following requirements –
(a) any Parents, grandparents or great-grandparents of such a person, on the male or female line, were born in South Sudan; or
(b) such person belongs to one of the indigenous ethnic communities of South Sudan.
…
Section 9 states:
9. Certificate of Nationality
The Minister shall issue a Certificate of Nationality to an applicant who is a South Sudanese National by birth in accordance with the provisions of section (8) above. The form of the Certificate, its designation and procedures for its issuance shall be set forth in the regulations.
The Tribunal accepts the evidence, which was not contested by parties, that the Applicant’s mother Ms Theb was born in Bentiu in what is now South Sudan. Mr Galuak gave evidence at the hearing that his mother was born in Bentiu and he believed that his father was, as well, as were his paternal and maternal grandparents. That being the case, by force of section 8 of the South Sudan Nationality Act, Mr Galuak “shall be considered” a South Sudanese national under the law of that country.
The Tribunal also considered the Transitional Constitution of the Republic of South Sudan, 2011 (the Transnational Constitution). It provides, at Chapter II – Citizenship and Nationality, at Article 45(1) as follows:
Every person born to a South Sudanese mother or father shall have an inalienable right to enjoy South Sudanese citizenship and nationality.
Dr Karunadasa in oral submissions to the Tribunal contended that the Respondent has not produced any ‘conclusive document’ from the authorities in South Sudan, so in his submission the Minister therefore cannot be satisfied as required under the Act. The Tribunal does not accept this contention or the contention that the Applicant must undertake some further action to be ‘accepted’ as a South Sudanese national. The South Sudan Nationality Act is declarative – it confers South Sudanese citizenship on persons with a parent, grandparent or great-grandparent who was born in South Sudan. Persons fulfilling these criteria are not required on the face of the Act to take any further administrative action.
This conclusion is reinforced by section 9 of the South Sudan Nationality Act which requires the relevant Minister to issue a Certificate of Nationality to a person who is a South Sudanese national by birth by force of section 8. The relevant Minister does not have discretion in providing such documentation in a case where a person fulfils the requirements of being a South Sudanese national by birth. A certificate is not a precursor to South Sudanese citizenship but simply proof of it for an individual within one of the legislated categories. There were no submissions from the Applicant, or any other evidence, that Mr Galuak had renounced or sought to renounce South Sudanese citizenship.
Considering the provisions of both the Transitional Constitution and the South Sudan Nationality Act set out above, the Tribunal is comfortably satisfied that Mr Galuak is a South Sudanese national and was a South Sudanese national at the time the Minister made the reviewable decision.
Although it is not strictly relevant to make a finding in this regard given that Mr Galuak satisfies the provisions of section 8(1)(a) of the South Sudan Nationality Act, the Tribunal is of the view that the Applicant also satisfies section 8(1)(b) of that Act as he is one of the indigenous ethnic communities of South Sudan, given there is uncontested evidence in the Applicant’s written submissions that Mr Galuak is a member of the Nuer ethnic community, which is an ethnic community of South Sudan.
For completeness, although not directly relevant to the reviewable decision, it would appear from the 2011 amendment to the nationality laws of Sudan that persons who may have had Sudanese citizenship who then are, or become, South Sudanese nationals, lose their Sudanese citizenship.
The Tribunal finds, therefore, that the legislative power of the Minister to revoke Australian citizenship by conferral is not prevented from operation in Mr Galuak’s case because, if exercised, Mr Galuak would be rendered stateless. He is a citizen of the Republic of South Sudan.
Second step – section 34(2)(c) – public interest and the exercise of discretion
The Tribunal, standing in the shoes of the decision-maker, must now consider whether it would be contrary to the public interest for Mr Galuak to remain an Australian citizen. Importantly, section 34(2) commences with the words “the Minister may, by writing, revoke a person’s Australian citizenship” if the subsequent requirements are engaged. This is a discretionary power given by the Parliament to the Minister. Accordingly, the Tribunal must consider it in two parts, first is the Tribunal satisfied that it would be ‘contrary to the public interest’ for the Applicant to remain an Australian citizen? Secondly, if that state of satisfaction is reached, the next question for the Tribunal is: whether or not, having regard to all the circumstances, the discretion should be exercised?
The Respondent submitted that what constitutes ‘the public interest’ in the context of section 34(2) of the Act has been considered by the Tribunal on a number of recent occasions and that these decisions point to the following features outlined in Director of Public Prosecutions v Smith [1991] VicRp 6 (Smith):
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.
The Full Court of the Federal Court also considered the term ‘public interest’ in McKinnonv Secretary, Department of Treasury (2005) 88 ALD 12 , wherein Tamberlin J stated:
The public interest is not one homogeneous undivided concept. It will often be multifaceted and the decision maker will have to consider and evaluate the relative weight of these facts 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.
The 2007 citizenship application
Before the Tribunal (T16) was Ms Theb’s application for Australian citizenship dated 18 June 2007. As mentioned above, Ms Theb included in her application, at Part G, three minor children, one of whom is the Applicant. Part G says, at question 40:
If you are the applicant named at Question 2, do you have any children under 16 years of age whom you wish to include in your application for Australian citizenship?
…
Note: The children must be under 16 years of age. You must be their responsible parent (that is, have legal custody of the children or be their legal guardian).
These children will each receive their own certificate of Australian citizenship.
Section 46(2A) of the Act states:
An application under a provision of this Act by a child under 16 must be set out:
(a) on a form that contains no other application; or
(b) on a form that also contains an application by 1 responsible parent of the child.
It was not in contention that Ms Theb was the responsible parent of Mr Galuak when she lodged her application for Australian citizenship by conferral. However, what is important in this review is the point that although Ms Theb lodged the application, because of section 46(2A) of the Act, the inclusion of the Applicant in her form does not mean that his application does not stand alone. Mr Galuak is considered to have made a separate application for Australian citizenship at the same time, and the action of the then Minister, in exercising his power to grant Australian citizenship on Mr Galuak, is treated to have exercised that power separately in relation to the Applicant, to his mother, and to each of the other two minor children of Ms Theb included in the form.
The Applicant’s offending
In the Reasons for Sentence dated 26 June 2015, Her Honour Judge Wilmoth set out the circumstances of the offending. Mr Galuak pleaded guilty to one charge of rape, which occurred on 8 April 2007. Her Honour said:
1. … You accosted a 17 year old girl near a railway station, followed her into a park, threatened her with a cricket bat and raped her. It was a violent and terrifying attack. She reported it to the police three days later and swabs were taken from her and from the clothing she had been wearing at the time of the rape.
2. The complainant had been returning home from an outing when you approached her and asked for a light for your cigarette. She obliged and then continued on her way along a pathway through the park. You and another youth followed her and you pulled on her jacket, holding a cricket bat above her head as if to strike her. She was terrified and offered you her iPod and mobile phone and anything else you could find.
The Judge then went on to detail the circumstances of the rape. The victim was verbally threatened, searched and her mobile telephone taken from her. The Applicant told her he had a gun, patting his pocket and leading her to believe that he did. She was then forced to undress and dragged, in a headlock, to a secluded location in the park by the Applicant. The other youth present exhorted the Applicant not to rape the girl, and then left the scene, not to be seen again.
The Applicant then raped her with his penis. The Judge said he continued to penetrate the victim in various ways for about 20 minutes. When a passer-by came near, Mr Galuak threatened the complainant that “if the person came close, [he] would kill them”. The Applicant then forced the girl to give him oral sex. He then told the victim to dress, forget what he looked like and threatened the girl that he would kill her and any of her friends if he saw them in what he called ‘my area’.
Her Honour then said that the victim has provided:
…an articulate and thoughtful victim impact statement, in which she described the physical and emotional pain she suffered at the time, and which continues, to some extent, to this day. She was anxious, she lost her independence and her self-esteem suffered. The experience affected her final year at school.
In 2011 Mr Galuak provided a sample of his DNA to the police as a result of being arrested for drink-driving offences. This sample was placed on the national DNA database. In January 2012, police were informed that a match had been established between the DNA taken from Mr Galuak and the DNA profile found on the clothing worn by the victim. The Tribunal notes that this was almost five years after the offending.
Her Honour stated (T14, p 147-8):
10. The police located your address, but you refused to surrender yourself. About a week later, on 24 January, you are arrested on an unrelated matter and were interviewed in relation to this matter, giving no comment answers. A new buccal swab was taken and analysed, and another comparison was done with the result that the DNA likelihood ratios were extremely strong. You were not charged until September 2014, but by then, you would have been aware that the charge was likely and so you have had the matter hanging over your head for that period of time, whilst in custody, with the opportunity to reflect on your culpability.
11. You were aged 13 years and seven months at the time of this offence. Records show that in August 2007, you pleaded guilty to a series of six criminal charges in the Children’s Court, some of which were committed before the rape and some after, and as a result of which you were remanded in custody.
The Judge then went on to refer to the offending history of Mr Galuak in the context of what she should take into account in sentencing considerations and said that the history indicated “a background of trouble with the law from an early age soon after [his] arrival in Australia.”
For the purposes of this review, the Tribunal will reproduce the information contained in the Victoria Police Criminal History Report (T5, p 41):
Court Date Offence Result MELBOURNE COUNTY COURT 26/06/2015 RAPE
5 YEARS. NON-PAROLE PERIOD OF 3 YEARS, 6 MONTHS. DANDENONG MAGISTRATES COURT 05/02/2013 AFFRAY (COMMON LAW)
ROBBERY
Aggregate 4 MONTHS imprisonment. Concurrent.
DANDENONG
MAGISTRATES COURT19/09/2012 INTENTIONALLY CAUSE INJURY
FALSE IMPRISONMENT (COMMON LAW)
CONTRAVENE FAMILY VIOLENCE INTERVENTION ORDER
18 MONTHS imprisonment. Base sentence.
Effective total State term imposed is 3 years 6 months. Time held in custody, 36 days, reckoned as a period of imprisonment already served under this sentence. Non-parole period fixed at 20 months.18 MONTHS imprisonment. Cumulative. Time spent in custody, 36 days, reckoned as a period of imprisonment already served under this sentence.
6 months imprisonment. Cumulative. Effective total State term imposed is 3 years 6 months. Time held in custody, 36 days, reckoned as a period of imprisonment already served under this sentence. Non-parole period fixed at 20 months.
DANDENONG
MAGISTRATES COURT09/05/2012 FALSE IMPRISONMENT (COMMON LAW).
POSSESS ANY THING W/O AUTH – POLICE GAOL
INTENTIONALLY CAUSE INJURY
MAKE THREAT TO KILL
RECKLESSLY CAUSE SERIOUS INJURYPOSSESS PROHIBITED WEAPON IN LICENSED PREMISES
On each charge:
12 months detention in a Youth Training Centre.
Effective total term imposed is 12 months.
Time held in custody of 71 days has been reckoned as already served.12 months detention in a Youth Training Centre. Effective total term imposed is 12 months. Time held in custody of 71 days has been reckoned as already served.
Forfeiture Order made by consent.
Order all Property/s seized be forfeited and destroyed.
DANDENONG MAGISTRATES COURT 09/02/2012 CONTRAVENE FAM VIOLENCE INTERVENTN ORDER
DRUNK AND DISORERLY IN PUBLIC PLACE
RESIST POLICE
Without conviction, fined an aggregate of $500.00 DANDENONG CHILDREN’S COURT 08/04/2011 UNLAWFUL ASSAULT.
ATT. AGGRAVATED BURGLARY.
OBSTRUCT OPERATIONAL STAFF- AMBULANCE.
RESIST POLICE.
DRUNK IN A PUBLIC PLACE.
THEFT-FROM SHOP (SHOPSTEAL).
DRIVE WHILST DISQUALIFIED.
STATE FALSE NAME WHEN REQUESTED.
USE UNREGISTERED MOTOR VEHICLE-HIGHWAY.
CARELESS DRIVING OF A MOTOR VEHICLE.
STATE FALSE ADDRESS WHEN REQUESTED.
CRIMINAL DAMAGE (INTENT DAMAGE/DESTROY).
POSSESS CANNABISWithout conviction, the accused is placed on Probation for a period of 6 months to 7/10/2011.
All core Probation conditions apply.
The following special conditions apply to this order:
ENGAGE IN ALCOHOL COUNSELLING.Without conviction, the accused is placed on Probation for a period of 6 months to 7/10/2011. All core Probation conditions apply. The following special conditions apply to this order:
ENGAGE IN ALCOHOL COUNSELLING.
Forfeiture order made without consent.
Order all Property/s seized be forfeited and destroyed.DANDENONG CHILDREN’S COURT 08/04/2011 BREACH OF PROBATION ORDER Proven. FRANKSTON CHILDREN’S COURT 24/06/2010 POSSESS LIQUOR UNDER 18 YEARS Without conviction, fined $120.00 as GALUAK, JAL MICHAEL DANDENONG CHILDREN’S COURT 30/04/2010 POSSESS PROHIBITED WEAPON W/O EXEMPTION/APPROVAL.
RESIST POLICE
HINDER POLICE
.
Without conviction, adjourned to 10.00 am on 29/4/2011 at Dandenong Children’s Court. The offender is released upon entering a Good Behaviour Bond in the amount of $50.00.
The offender is to be of good behaviour during the period of the Good Behaviour Bond.
Forfeiture order made without consent.
Order all Property/s seized be forfeited and destroyed.
Without conviction, adjourned to 10.00 am on 29/4/2011 at DANDENONG CHILDREN’S COURT. The offender is released upon entering a Good Behaviour Bond in the amount of $50.00.
The offender is to be of good behaviour during the period of the Good Behaviour Bond.DANDENONG CHILDREN’S COURT 25/09/2009 INTENTIONALLY CAUSE INJURY.
THEFT OF A MOTOR VEHICLE.
DRIVE WHILST DISQUALIFIED.
CARELESS DRIVING – IMPROPER USE OF VEHICLE.
EXCEED SPEED LIMIT – 50 KPH.EX. PRESC CONC – 3 HRS – BREATH – DRIVE VEHICLE.
Without conviction, the defendant is placed on Probation for a period of 12 months to 24/9/2010.
All core Probation conditions apply.
The following special conditions apply to the order:
TO PARTICIPATE IN EDUCATIONAL AND VOCATIONAL PROGRAMS AND WHERE DIRECTED TO UNDERGO ANGER MANAGEMENT OR SIMILAR PROGRAMS.Without conviction, the defendant is placed on Probation for a period of 12 months to 24/9/2010.
All core Probation conditions apply.
The following special conditions apply to this order:
TO PARTICIPATE IN EDUCATIONAL; AND VOCATIONAL PROGRAMS AND WHERE DIRECTED TO UNDERGO ANGER MANAGEMENT OR SIMILAR PROGRAMS.
Licence cancelled and disqualified for 26 months.
Order on licence effective from 25/09/2009.DANDENONG CHILDREN’S COURT 26/09/2008 DRUNK IN A PUBLIC PLACE.
ASSAULT POLICE.Without conviction, adjourned to 10.00 am on 25/9/2009 at DANDENONG CHILDREN’S COURT.
The defendant is released upon entering a Good Behaviour Bond in the amount of $100.00.
The defendant is to be of good behaviour during the period of the Good Behaviour Bond.
The following special conditions apply to this order:
COMMENCE THE LITERARY AND ENGLISH PROGRAM AT CITY OF GREATER DANDENONG ON 2 OCTOBER 2008.
TO PARTICIPATE IN THE GRIP PROGRAM.
TO COMMENCE THE HANDBRAKE TURN PROGRAM.
As GALUAK, JALDANDENONG CHILDREN’S COURT 21/08/2007 INDECENT ASSAULT.
ARMED ROBBERY.
UNLICENSED DRIVING.
THEFT.On each charge:
The defendant is convicted and ordered to be detained in a Youth Residential Centre for a period of 14 months.DANDENONG CHILDREN’S COURT 21/08/2007 ASSAULT WITH WEAPON The defendant is convicted and ordered to be detained in a Youth Residential Centre for a period of 14 months.
Forfeiture order made by consent.
Order all Property/s seized be forfeited and destroyed.EX. PRESC CONC – 3 HRS – BREATH – DRIVE VEHICLE. The defendant is convicted and ordered to be detained in a Youth Residential Centre for a period of 14 months.
Licence cancelled and disqualified for 2 years.
Order on licence effective from 21/08/2007.AGGRAVATED BURGLARY – PERSON PRESENT.
.
The defendant is convicted and ordered to be detained at a Youth Residential Centre for a period of 14 months.
Order made by consent.
Order that the respondent GALUAK, J be directed to undergo a forensic procedure for the taking of an intimate sample from any part of the body pursuant to the provisions of Section 464ZF of the Crimes Act 1958 (as amended).
Pursuant to Section 464ZF(9)(a) of the Crimes Act 1958 (as amended) a copy of this order and reasons are to be served on the child and a parent or guardian of the child.
Pursuant to section 464ZF(9)(b) of the Crimes Act 1958 (as amended), the respondent is informed that a member of the police force may use reasonable force to enable the procedure to be conducted.
Respondent directed to attend at FRANKSTON POLICE STATION within 7 days after:
- The expiration of the appeal period in relation to the forensic sample offence or the final determination of any appeal upholding the conviction for the forensic sample offence, whichever is the later.
- Reasons:
The seriousness of the circumstances of the offence warrants the order.
The prior convictions of the respondent are such as to warrant the making of the order.
The order is not opposed.
The granting of the order is in the public interest.
The benefit of having the sample for detection of further crime.MELBOURNE CHILDREN’S COURT 18/01/2007 THEFT FROM SHOP (SHOPSTEAL) (2 COUNTS)
AGGRAVATED BURGLARY – PERSON PRESENT (2 COUNTS)
THEFT
UNLAWFUL ASSAULT
ASSAULT IN COMPANY
BURGLARY
INTENTIONALLY DAMAGE PROPERTY
INTENTIONALLY DESTROY PROPERTY (2 COUNTS)
RECKLESSLY CAUSE INJURY
AFFRAY (COMMON LAW)
ASSAULT POLICE
CRIMINAL DAMAGE (INTENT DAMAGE/DESTROY)
HANDLE/RECEIVE/RETENTION STOLEN GOODSON EACH CHARGE:
The defendant is convicted and ordered to be detained in a Youth Residential Centre for a period of 6 months.
The defendant is convicted and ordered to be detained in a Youth Residential Centre for a period of 6 months. Forfeiture order made by consent.
Order all Property/s seized be forfeited to the Minister and disposed of or otherwise dealt with according to the directions of the Minister.
MELBOURNE COUNTY COURT 08/06/2006 UNLICENSED DRIVING (7 COUNTS)
STATE FALSE NAME AND ADDRESS
NUMBER PLATES NOT AFFIXED/DISPLAYED AS REQ
ENTER INTERSECTION – RED TRAFFIC LIGHT
STATE FALSE NAME (2 COUNTS)
DRIVE IN A MANGER DANGEROUS
DRIVE AT SPEED OVER SPEED LIMIT
USE UNREGISTERED MOTOR VEHICLE – HIGHWAY
THEFT OF A MOTOR VEHICLE (2 COUNTS)
ASSAULT POLICERESIST POLICE (2 COUNTS)
CONVICTED PROBATION FOR 40 WEEKS. The Respondent’s contentions
The Respondent submitted, having regard to the nature and circumstances of the offence (the rape offence) and the observations of the sentencing judge and the Court of Appeal, that the offending conduct was very serious and profoundly impactful upon the victim, and that the County Court, taking into account factors in mitigation for the Applicant, imposed a sentence that reflected the very serious nature of the offence committed. The Minister contended that it cannot be in the public interest for a person to remain as an Australian citizen if the person engages in offending of this kind and that this should be given significant weight in determining whether it is in the public interest for Mr Galuak to remain an Australian citizen.
The Respondent contended that the Australian community would not countenance offending of this nature, with the impact that it had upon the victim, as being consistent with the values of upholding and obeying the laws of Australia and, to the contrary, such conduct is a flagrant breach of Victoria’s criminal law. The Respondent submitted that the Australian community would expect persons who have become Australian citizens to reflect and uphold the values of respect for a person’s autonomy and dignity, and not engage in ‘violent and terrifying’ criminal conduct that is ‘humiliating and degrading’ to a person (see the sentencing Judge’s remarks, T14, p 153).
The Respondent submitted that the County Court took into account a number of matters personal to Mr Galuak in sentencing, including his engagement in criminal offending before, and after, the rape offence; his adverse and traumatic experiences in Sudan and Egypt before he was granted a humanitarian visa and the ‘strong likelihood’ that this trauma may have affected the Applicant; his intellectual disability; difficulties he experienced in Australia as a newly-arrived refugee; his spasmodic schooling; literacy difficulties and previous alcohol abuse.
The Respondent also drew attention to Her Honour’s consideration that Mr Galuak suffered from post-traumatic stress disorder but that this fact played a limited role in the calculating of his sentence.
Judge Wilmoth considered the degree of rehabilitation of Mr Galuak and referred to another case, Bruce Sherritt v The Queen [2015] VSCA 1, where the sexual offending was committed by a child who, when sentenced,was an adult. In that case, the Court of Appeal considered authorities which established that where the offender has, over the years since the offence, achieved a significant degree of rehabilitation and there has been no further offending, this might be good reason to mitigate the penalty. Her Honour went on (T14, p151):
25. That is not the case here as you continued to offend, although admittedly, not in similar ways. Other than having completed courses in prison, you have not demonstrated that there are any chances of rehabilitation and it must be said that your prospects are poor.
The Respondent also drew to the Tribunal’s attention the observations of the Court of Appeal in regard to Mr Galuak’s rehabilitation prospects, Jal Galuak v The Queen [2015] VSCA 300, at [18]:
In the present case, it cannot be said that there has been rehabilitation and no further offending in the years since the appellant committed the rape and which this case is concerned. Since 8 April 2007, when he raped his 17 year old victim, [Mr Galuak] has amassed a significant number of convictions and findings of guilt…
And at [23]:
In light of the [Applicant’s] offending in the period since he committed the rape, it can hardly be contended realistically that the [Applicant] has undergone any significant rehabilitation. Indeed, the [Applicant’s] offending provokes little cause for optimism about his prospects of rehabilitation. The [Applicant’s] bad character since the commission of the rape in April 2007 cannot operate so as to increase the sentence to be imposed beyond that which is appropriate, or so as to justify a disproportionate sentence. But this persistent offending since the commission of the rape certainly bears on the leniency to be afforded to him for the present offence.
In terms of whether or not Mr Galuak is of ‘good character’, Dr Karunadasa submitted that an assessment of character was not a requirement for Mr Galuak, as a person under the age of 18 at the time he made his application for citizenship (see section 21(5) of the Act). Mr McDermott conceded this point in submissions and at the hearing and said that the Minister did not purport to consider whether or not Mr Galuak was of ‘good character’ at the time of his offending or thereafter. However, the Respondent contended that having regard to the Applicant’s character and indications of remorse is relevant to an assessment of the public interest because it may inform an evaluation of rehabilitation and the risk of re-offending.
The Respondent conceded that Mr Galuak’s plea to the charge and his expression of remorse, which was taken into account by the County Court, should be taken into account.
The Applicant’s submissions
Dr Karunadasa submitted that the ‘public interest’ test should be considered consistent with the conclusions of the High Court in O’Sullivan v Farrer (1989) 168 CLR 210 (O’Sullivan) where the Court stated:
…the expression “in the public interest” when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only “in so far as the subject matter and the scope and purpose of the statutory enactments may enable…”
(Emphasis added in Applicant’s submission.)
Dr Karunadasa drew the Tribunal’s attention to another Tribunal decision in ReTRHL and Minister for Immigration and Border Protection [2015] AATA 803 (TRHL). In TRHL, Senior Member Walsh considered the case of a man who migrated to Australia in 1974 as an adult and applied for Australian citizenship in 1996 when the relevant governing legislation was the Australian Citizenship Act 1948 (the 1948 Act). The 1948 Act was repealed when the Act came into force. However, relevantly, TRHL centred largely on an argument by the Minister that TRHL had been granted citizenship under a requirement in section 13(1) of the 1948 Act that he was a person of good character.
Essentially, Dr Karunadasa contended that the good character requirements in the 1948 Act and the current Act are similar; the Minister had misdirected himself at law because he confined his consideration of the public interest test to Mr Galuak’s offending and prior criminal history. Dr Karunadasa argued that the Tribunal should follow the reasoning in TRHL that the public interest test was contingent upon the good character requirement for the Applicant’s citizenship application in the first place.
Further, as Mr Galuak was a minor and section 21 does not impose a good character requirement upon minors, Dr Karunadasa contended that the ‘nature of his past offending’ alone cannot justify a finding that it would not be in the public interest for him to remain an Australian citizen because it did not breach the purposes of the Act as it applied to him at the operative time.
Dr Karunadasa also distinguished TRHL in that TRHL had, essentially, ‘dodged’ the good character requirement because had his offending, which had occurred but for which he had not been charged or convicted, been known to the Minister at the time, he would not have been granted citizenship under the 1948 Act. As Mr Galuak had been charged and convicted by the time of his grant of citizenship, Dr Karunadasa contended that “the Minister was almost certainly aware, or at least should have been aware, of his offending - no such ‘dodging’ occurred”.
Consideration
The first point that the Tribunal will make is to repeat Senior Member Walsh’s apposite remark in TRHL at [23]:
The Minister’s power in s 34(2) of the Citizenship Act to revoke a person’s Australian citizenship is an extraordinary power which has historically been used sparingly. Each case must be decided on its own merits.
The Tribunal echoes this view. It is significant that the Minister has not delegated this power, reflecting the position of successive Australian governments that revocation of citizenship under section 34(2) is a discretionary power which is to be used only in particular and special circumstances.
Mr Galuak has been convicted of a serious crime, and is serving a sentence of imprisonment for it. In this consideration the Tribunal is not engaged in an exercise of ‘double-punishment’, but it is necessary, in the context of the requirement of deciding whether it would be contrary to the public interest for the Applicant to remain an Australian citizen, to look at the circumstances of the crime.
The Tribunal notes that there are some doubts about the age of Mr Galuak at the time of the offending in April 2007. In his evidence, Mr Galuak said that he did not have a birth certificate and he had been told his birthdate by his mother. The Tribunal is mindful that the turmoil in Sudan, not only at the time of his birth but for many years, has suspended the normal operation of much government administration. The Tribunal is aware that notional dates are often chosen by parents as birthdates for their children, and that at T16, Ms Theb put her own birthdate, and that of two of her sons as ‘1 January’. For the Applicant, she put ‘1 August 1993’. Judge Wilmoth wrote (T14, p 150):
20. Susan Whitelaw, the psychologist who assessed you in June 2006, a year after your arrival in Australia, was provided with papers which gave your age at the time as 12, but you told her you were 17 and Ms Whitelaw considered that was consistent with your appearance. In any event, I must sentence you as a 21 year old now and take into account that you were 13 when you committed the offence.
The Tribunal considers that it may well be that Mr Galuak was born sometime before 1993. It is possible that the Applicant may have been aged over 18 when he applied for Australian citizenship, in which case the ‘good character’ requirements in section 21 would be relevant. However, this is mere speculation. In the absence of substantial contrary evidence, the Tribunal adopts the conclusion of the County Court and finds that Mr Galuak was aged around 13 in 2007, at the time of the rape offence.
At the time of the rape offence, the Applicant had, however, attained the age of criminal responsibility in Victoria. He knew what he was doing when he committed the rape, and he reiterated in his oral evidence at the hearing, that he ‘knew it was wrong’. There is no need to repeat the particular circumstances of the rape which are partly outlined above. Suffice it to say that the young victim was placed in a terrifying situation and subjected to a sustained sexual assault while under physical threat, and that, at the conclusion of the assault, she was threatened with consequences if she told anyone about the attack, and threats were also made by the Applicant to kill her family.
On the evidence, this does not appear to have been the first sexual offending by Mr Galuak. At the hearing he was asked about the nature of the indecent assault conviction of 12 August 2007, but he was unforthcoming about the detail, stating he could not remember. Although there is no evidence of later sexual offending, Mr Galuak’s pattern of criminal behaviour involves many instances of crime against the person, such as assault, false imprisonment, making threats to kill, causing serious injury and aggravated burglary where a person was present. There are also property, driving and drug offences.
Mr Galuak was asked in the hearing about his breach of a family violence order. He told the Tribunal that the order was sought by the police and related to fights he had had with his then girlfriend, saying “when we both drink, we ended up fighting”. The Tribunal accepts this evidence.
It is clear on the evidence before the Tribunal that Mr Galuak embarked on a pattern of criminal offending soon after he came to live in Australia. The rape offence is the most serious, but many subsequent offences have also been of a very serious nature.
Judge Wilmoth remarked about Mr Galuak’s plea of guilt and that this was viewed favourably by the Court in terms of saving the time and expense of a trial and the trauma that would have been revisited upon the victim if she had been required to give evidence. Balancing this, however, is the inescapable fact that Mr Galuak committed a serious sexual assault and was only apprehended years later to face justice after a DNA match following an unrelated offence.
The Tribunal cannot accept Dr Karunadasa’s written submission that Mr Galuak had already been charged and convicted by the time of his grant of citizenship. This is plainly wrong. The rape offence occurred in April 2007. Mr Galuak was granted citizenship in November 2007. He was charged for the rape offence in September 2014, and sentenced in June 2015. This is an important fact, because, as the Tribunal points out above, Mr Galuak’s application for citizenship was considered discretely and granted to him as an individual, and, had the Minister at the time either known of a charge for an alleged serious offence of this nature, or had Mr Galuak been convicted at the time his citizenship application was being considered, the Tribunal finds this would certainly have been a relevant consideration for the Minister.
The Tribunal accepts Dr Karunadasa’s submissions, and Mr McDermott’s concession, that the ‘good character’ requirements set out in section 21 are not strictly relevant in Mr Galuak’s case because he was aged under 18 when he was granted citizenship. Having said that, however, the general matter of Mr Galuak’s ‘character’ in terms of his conduct and remorse for his past offending is, in the Tribunal’s view, a relevant factor to take into account. The Tribunal also accepts the submission of Dr Karunadasa that the approach in O’Sullivan is relevant and that the ‘public interest’ test should be undertaken within the context of the relevant statute, in this case the Act.
The Table of Provisions in the Act contains the Long Title and then the Preamble before the other numbered provisions. The Preamble forms part of the Act. It states:
Preamble
The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:
(a) by pledging loyalty to Australia and its people; and
(b) by sharing their democratic beliefs; and
(c) by respecting their rights and liberties; and
(d) by upholding and obeying the laws of Australia.
Points (a) to (d) in the Preamble to the Act are, in effect, replicated in the Pledge of Commitment taken by persons granted Australian citizenship by conferral and referred to in section 27 and contained in Schedule 1 of the Act.
The Tribunal considers that in addressing the question of whether it would be contrary to the public interest for a person to retain Australian citizenship, the interests of the public, in the context of the Act, are pointed towards the good order of society and the well-being of its members. To borrow the wording in Smith, this should be weighed in the context of the expectations on persons conferred Australian citizenship to enjoy certain rights and accept certain obligations, as enunciated in the Preamble and the Pledge of Commitment.
Mr Galuak arrived in Australia from Egypt on 19 May 2005. His first appearance in the County Court was a year later in June 2006, involving car theft, a range of traffic offences and assaulting police. He appeared in Court on a further 11 occasions before his plea hearing and sentence for the rape offence. As set out above, many of these convictions involve crimes against the person. The range of sentencing sanctions against him has progressed through probation, detention in Youth Residential Centres, to detention in a Youth Training Centre, to, eventually, imprisonment. A variety of court orders have been imposed on him relating to good behaviour, rehabilitative courses and a family violence intervention order. As the Victoria Police Criminal History Report shows, the steadily increasing sanctions appear to have had little effect on Mr Galuak’s pattern of offending, and upon the upward trajectory of its seriousness.
Ms Carla Lechner, consultant psychologist, examined Mr Galuak on 12 May 2015 and her report dated 15 June 2015 (T10, p 80) was before the Tribunal. After acknowledging the Applicant’s conviction for indecent assault in August 2007, she relevantly wrote:
…At the time of the above offence [the rape offence] eight years ago, Mr. Galuak was attempting to adjust to an entirely new life whilst struggling with severe symptoms of PTSD that he essentially denied.
Mr. Galuak’s sexual offending is confined to that period in his life; he has had no subsequent matters of a similar nature. His subsequent offending has been characterized by violence, often fuelled by alcohol intoxication. Apart from his offending, his reported sexual history is unremarkable. He expresses regret, shame and appropriate victim empathy.
…
Mr. Galuak had good insight regarding the impact of his behaviour on the victim – “of course it would affect her…she would feel angry and not happy at all…she was quiet, not screaming, trying to survive…I know it was wrong.”
Ms Lechner administered psychometric tests on Mr Galuak and concluded:
Mr. Galuak was rated according to the Sexual Violence Risk – 20 Inventory, a measure that assesses risk taking into account psycho-social adjustment, sexual offending and future plans. Mr. Galuak is best described as a “low/moderate” risk of sexual offending with a “high” rating on the psychosocial adjustment component. He has mental health, substance abuse, employment problems and a history of both violent and non-violent (non-sexual) offending. His rating on the sexual offences at that time would have been considered “high” but in the absence of further known offending over the past eight years decreases to “low/moderate”.
In terms of the Applicant’s own feelings of remorse, before the Tribunal (T10, p 91) was an undated statement signed by Mr Galuak which stated, in part:
My friends had set me up you see they loved me as long as I was willing to do stupid things with them. When I found out they used me, I stopped hanging out with them. No matter how many times I tell every one that I’m sorry for the bad decisions that I made, it almost impossible to convey how bad I felt. I wanted to stand up to him, but he was older and I was afraid of what he would do to me. He forced me to do bad things and I felt terrible for doing them. When my lawyer told me how the victim felt, I apologised to her and her family too. I didn’t know what I was doing. I was forced by my older friend at the time. I was young and I wish that I was his age, so that I could stand up to him at the time.
It troubles the Tribunal that this summary does not square with the findings of Judge Wilmoth. If the other person to whom Mr Galuak is referring in this statement was initially with him on the day of the rape offence, on the evidence that person was not the principal actor and in fact, as the Judge stated, “exhorted” the Applicant not to commit the rape, and left the scene after an argument and before the sexual assault took place. If the person referred to is someone else who was not present, it is not clear how that person can have ‘forced’ the Applicant to commit this serious crime.
In the hearing, Mr Galuak was brief in his responses when asked directly about what effect he thought the rape had on a 17-year-old girl. He responded that she was “not going to be happy, and would feel sad.” Mr Galuak was asked in cross-examination by Mr McDermott: “Why was the rape wrong?” He responded: “It was the wrong thing to do in the first place. It was not supposed to happen. It was a bad thing to do. I was young, didn’t know what I was doing.”
The Tribunal notes that Judge Wilmoth decided not to place Mr Galuak on the Sex Offenders Register in 2015 on the basis of the period of time between the rape offence and the date of sentence and partly on the basis of Ms Lechner’s view that the risk of re-offending in terms of a sexual crime is low to moderate.
It may be that Mr Galuak is unlikely to commit a further sexual offence, but on Ms Lechner’s other assessment conclusions, he has a history of violent and non-violent non-sexual offending. Judge Wilmoth said (T14, p 151) that other than completing courses in prison, Mr Galuak had not “demonstrated that there are any chances of rehabilitation and it must be said that [his] prospects are poor.”
Mr Galuak seemed to display at the hearing less than comprehensive insight into how devastating the rape offence, and the lasting impact of it, was on his victim. But he pleaded guilty and the Court accepted his expression of remorse and shame for what he did, and this weighs in Mr Galuak’s favour in this consideration.
Deputy President Breen said in ReFenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8]:
The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home...
Mr Galuak has not upheld the values of the Australian community. Taking into account that revocation of citizenship is a power not to be exercised lightly, the Tribunal finds that the consistent pattern of serious and often violent offending from 2007 until his imprisonment in 2015, coupled with his poor prospects of rehabilitation, leads the Tribunal to a conclusion that he has shown scant regard for upholding and obeying the laws of Australia. There is a substantial risk of re-offending and, accordingly in terms of the protection of Australian society, the Tribunal finds it would be contrary to the public interest for Mr Galuak to remain an Australian citizen.
In making this finding, the Tribunal places significant weight on the fact that, had the Minister been in possession of the facts relating to Mr Galuak’s serious and violent sexual offending (in April 2007) at the time he considered Mr Galuak’s application for citizenship by conferral in November that year, it is reasonable to conclude that the application would have been refused.
Should the discretion be exercised?
Having found that it is not in the public interest for Mr Galuak to remain a citizen, the Tribunal must now consider whether the exercise by the Minister of the discretion available to him was the preferable decision.
In this examination, the focus shifts slightly away from the broader public interest to how that principle intersects with the individual circumstances of the Applicant. The Tribunal had before it several documents relating to Mr Galuak’s mother, Ms Theb. Wek Dador of the Liech Neur Community Association of Australia (T1, p 1) referred to the high regard in which Ms Theb is held by members of the community and said:
Moreover, Mr. Jal Gatluak’s [sic] citizenship status is currently under threat of cancellation, we therefore recommend to your department to reconsider the decision that has been taken to cancel his citizenship.
Lastly, for the sake of physical wellbeing, mental refreshment, and healthy living of Mrs. Angelina Theb, we recommend to your department to unconditionally free her son Mr. Jal Michael Gatluak from the Prison once his legal serving period term is finished.
Also before the Tribunal (T1, p2) was a certificate from Dr Vicki Meizis dated 4 August 2017 referring to various medical conditions of Ms Theb and stating that Ms Theb requires support at home with cooking and cleaning.
Pastors Paltridge and Luk of St. Peter’s Lutheran Church in Frankston provided a statement dated 20 August 2017:
We would like to make a case for Jal remaining in Australia. Jal’s mother Angelina Theb has had poor health and Jal has been looking after his mother and younger siblings. Jal is a member of our congregation and has been attending services at our church. We believe Jal to be a good young man but made some bad judgements under the influence of some other people.
Ms Anita Carter, Director of Student Welfare at St Peter’s College, Cranbourne, wrote a statement dated 8 August 2017 relating to Mr Galuak’s younger brother, Mathor. She wrote:
Both Mathor and Angelina rely heavily on the support of Jal. He is a caring and supportive member of their family. Mathor is a boy of excellent character who has the respect of his teachers and peers. He struggles to assist his mother as he is currently the only sibling at home. …
The Tribunal considers that those attestations as to the good character, which is uncontested, of Ms Theb and the Applicant’s brother are not relevant to an assessment relating to the Applicant himself, except insofar as they illustrate that he has had many environmental family reasons not to have committed the string of criminal offences that he has.
The Tribunal notes that Mr Galuak has been imprisoned on a full-time basis since 19 September 2012 (T4, p 36). He has an older brother, Longa, who lives in Brisbane, and two younger brothers, Stephen and Mathor, who live with their mother. It was not contested at the hearing that Ms Theb has a range of health conditions. In the words of Dr Karunadasa, she is ‘chronically ill’. Ms Theb was originally scheduled to give evidence at the hearing but, in the event, did not. Dr Karunadasa submitted she was not mentally capable of giving evidence to the Tribunal at that time.
The Tribunal accepts, on the statements of Ms Carter and, to some extent, Dr Meizis, that Mr Galuak has provided support for his mother and other members of his family when he has been living with them. In evidence, Mr Galuak agreed that he has not been able to provide care for his mother for the last five years, and was equally unable to provide care for her during his previous term of imprisonment and periods of youth detention.
The Tribunal finds that his separation from his family weighs against the exercise of the discretion to revoke citizenship, but in a compassionate sense only. This is because, given the Applicant’s frequent periods of incarceration, it is clear that he has been unable to provide care and support for his ill mother on a regular basis. The Tribunal also notes that Ms Theb has two other sons who live with her who are able to provide that assistance.
The Tribunal accepts, on the evidence, that Mr Galuak experienced traumatic experiences in his formative years in (then) Sudan. Her Honour Judge Wilmoth said:
16. … You claim to have been tortured in the Sudan by rebels who captured you. Although that has not been verified, there are references in the reports which suggest it is likely. The reports of your having suppressed bad memories in the past also lend it support. It appears you also suffered badly from mistreatment in Egypt.
There is also reference in Ms Lechner’s psychological report to traumatic experiences relayed to her by Mr Galuak. He told her he was beaten by rebels and displayed to her scars on his legs that he attributed to “a knife on the fire and on my leg, whipped and tied up, beating me up so bad and burning my legs, tied down with rope.”
The Tribunal does not dwell on these claims in this consideration. The Respondent submitted that Mr Galuak is currently the holder of a non-citizen visa and, if the decision to revoke his citizenship is affirmed, he will be liable to have that visa cancelled under section 501CA of the Migration Act 1958 because of his substantial criminal record and the fact that he was sentenced to a period of imprisonment of more than 12 months. However, persons in this situation have the opportunity to make representations to the Minister who may then be satisfied that a cancellation decision be revoked. It is fruitless for the Tribunal to engage in speculation about what representations Mr Galuak might make, in this eventuality, or what might be the response of the Minister (see the apt remarks of Deputy President Hotop on the futility of the Tribunal speculating in regard to future cancellation of visas in ReOsorio and Minister for Immigration and Citizenship [2007] AATA 59, at [45]). In addition, questions of non-refoulement obligations may be relevant in this context or in any other claim the Applicant may make for protection, but they are not directly relevant here.
It is a difficult weighing exercise to balance the Tribunal’s finding that it would be contrary to the public interest for Mr Galuak to remain an Australian citizen and then whether the question of exercising the discretionary power to revoke is enlivened. However, on balance while there would no doubt be understandable family distress if the Applicant’s citizenship was revoked, on the evidence before me, Mr Galuak is not an essential support for his mother with her health challenges. Noting the supportive comments of Pastor Paltridge and Pastor Luk and accepting that Mr Galuak may have been a positive member of their congregation, that testimonial does not carry any significant weight with the Tribunal when balanced against the Applicant’s sustained pattern of serious criminal offending. I cannot escape the view that it would appear in their conclusions about Mr Galuak that they may be unaware of his pattern of serious and sustained offending, especially in regard to the rape offence.
The seriousness of Mr Galuak’s offending (commencing before his Australian citizenship was conferred but not at that time fully revealed), its sustained pattern and the substantial risk of him re-offending when released into the Australian community all lead to the conclusion that the Tribunal is satisfied that it was preferable to exercise the discretion to revoke the Applicant’s citizenship under section 34(2) of the Act.
DECISION
The Minister’s decision of 22 June 2017 to revoke Mr Galuak’s citizenship is affirmed.
I certify that the preceding 105 (one hundred and five) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris
...........................[sgd].............................................
Associate
Dated: 19 July 2018
Date(s) of hearing: 8 - 9 May 2018 Date final submissions received: 28 May 2018 Solicitors for the Applicant: Dr Kamal Karunadasa Counsel for the Respondent: Mr Christopher McDermott Solicitors for the Respondent: Ms Danielle Nicholson
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