Ilolahia and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

Ilolahia and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 911 (15 April 2021)
Division:GENERAL DIVISION
File Number(s): 2020/2879
Re:Rutikha Ilolahia
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member W Frost
Date:15 April 2021
Place:Canberra

The decision under review is affirmed pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975.
...........................[sgd].................................
Member W Frost
Catchwords
CITIZENSHIP - revocation of Applicant’s Australian citizenship where Applicant is not of good character – whether the Tribunal is satisfied that the Applicant is of ‘good character’ – aggravating and mitigating factors – whether Applicant meets eligibility requirements to become an Australian Citizen – where Applicant has a history of criminal offending – sexual intercourse with female 12-16 – eligibility requirements under section 21 of the Citizenship Act not met – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 ss 33A, 37, 39
Australian Citizenship Act 2007 ss 20-21, 24, 52,
Crimes Act 1900 (NSW) s 66C
Migration Act 1958 s 501
Cases
Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Secondary Materials
Revised Citizenship Procedural Instructions
REASONS FOR DECISION
Member W Frost
15 April 2021
INTRODUCTION

The Applicant, Mr Rutikha Ilolahia, was refused Australian citizenship by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) on the ground that he was not of ‘good character’, as required under the Australian Citizenship Act 2007 (Citizenship Act).
Mr Ilolahia applied for review by the Administrative Appeals Tribunal (Tribunal) and a hearing was conducted by telephone on 22 March 2021 in circumstances where all in-person hearings at registries of the Tribunal across Australia have ceased as part of its response to the COVID-19 pandemic. The Tribunal is satisfied that the parties, but especially Mr Ilolahia as a self-represented applicant, were given a reasonable opportunity to participate in the hearing, give evidence and present their arguments, noting sections 33A and 39 of the Administrative Appeals Tribunal Act 1975 (AAT Act) regarding participation in a hearing by electronic means and parties being afforded a reasonable opportunity to make submissions.
The Tribunal has considered all of the documents in two bundles filed in this proceeding, pursuant to section 37 of the AAT Act,[1] and the following further documents also filed in the proceeding:
(a)Mr Ilolahia’s undated Statement filed on 23 February 2021;[2]
(b)Statement of Mr Kilifi Fangupo dated 17 November 2020;[3] and
(c)Statement of Pastor Akhil Ashtaputre dated 24 November 2020;[4]
(d)Statement of Mr Peter Cook dated 16 November 2020;[5]
(e)Statement of Ms Sela Takau dated 17 November 2020;[6]
(f)Sentencing Notes of Judge P A Moran from the District Court in New Zealand dated 3 November 2005;[7] and
(g)Oral Judgment of Hon Justice John Hansen in the High Court of New Zealand dated 18 November 2005.[8]
[1] Exhibits R1 and R2.
[2] Exhibit A1.
[3] Exhibit A2.
[4] Exhibit A3.
[5] Exhibit A4.
[6] Exhibit A5.
[7] Exhibit R3.
[8] Exhibit R4.
ISSUE
The issue in this proceeding is whether the Tribunal is satisfied that Mr Ilolahia is of ‘good character’, as required by subsection 21(2)(h) of the Citizenship Act, to be eligible to become an Australian citizen.
BACKGROUND
In 1985, Mr Ilolahia was born in Tonga; he is 35 years old.[9]
[9] Exhibit R1, T1, page 2; T2, page 10; T4, page 164.
On 3 November 2005, the District Court in New Zealand sentenced Mr Ilolahia, who was then aged 20, to two years imprisonment for each of the two offences of ‘sexual intercourse with female 12-16’, to be served concurrently.[10] Judge Moran made the following remarks in sentencing Mr Ilolahia:[11]
[10] Exhibit R1, T4, page 153; T10, page 203.
[11] Exhibit R3.
On 28 August this year, Mr Ilolahia, you were caught by the parents of…a young 12 year old girl, having intercourse with her.
You had recently come to New Zealand on a rugby scholarship. You are an outstandingly talented player and an outstanding leader in your sport. You were offered a scholarship which you took up at Waitiki College. You and other young Tongan men were put up in the home of this girl and you were treated not as boarders, but as members of the family and so to this 12 year old girl you were in effect a “big brother”.
When you were caught having intercourse with her you fled the house. You have had no contact I think with any of the family since. When spoken to by the police you admitted what you did and you also admitted that on four or five occasions since December 2004 you had had intercourse with her and that is the subject matter of the representative charge that I have been speaking about.
While you came to live in this house as a school boy, you finished school and were out in the work force in November. So all of this offending occurred while you were in the work force having left school and the representative offending occurred when you were 19 years of age and she was 12 and the one act in August occurred when you were 20 and she was 12.
The aggravating features of your offending are these. You were in a position of trust in this home. You were in a position of power over this little girl who looked up to you as a big brother. There was a significant age difference between you. You were 19 and 20; she was 12. You had intercourse with her not once but may be five or six times. You infected her with chlamydia and the impact upon her of the disease that you have inflicted upon her will be long lasting and far reaching. The impact of what you did on her parents has been devastating, they feel utterly gutted and betrayed by what you did, and the impact of your offending has been visited upon the other young men in that house who can no longer stay there and enjoy the support and hospitality that they once enjoyed.
On the credit side, the mitigating things. The obvious mitigating factor is that you have pleaded guilty to this offending. Not only that but you have co-operated to the extent that you would not have been charged with these earlier acts of intercourse if you had not admitted them. There was no evidence apart from your admissions and that is a very significant mitigating fact.
There are also very strong mitigating personal factors. You are but 20 years old. You have never committed any offence of any kind before apart from this. You have lived an exemplary life. You are a man of exemplary character apart from this offending. You are talented and highly regarded by all those who know you. You are plainly remorseful. You are sorry. You are deeply ashamed for what you did. You are not just ashamed for yourself but you feel the shame that you have brought upon your family.
I give you credit for the fact that you wish to apologise and you would have had you been permitted to do so and it is also a mitigating factor it seems to me, that you are virtually alone in New Zealand. You are a Tongan national and when you have done your sentence of imprisonment you will be sent home.
You tell me through your counsel that this young lady initiated these offences, that she came on to you. Frankly I find that difficult to believe in a 12 year old girl, but even if it is the case it does not excuse wat you did. Any agreement or willingness on her part is not a mitigating factor. The law endeavours to protect young girls and that is why consent is no defence except in limited circumstances.
In sentencing you today the objectives are these, first of all to denounce your conduct, to condemn what you did, to deter other people from doing the same thing, to stop others offending in this way against girls, and those objectives are not achieved by any sentence other than imprisonment.
I take into account, as I must, not only the seriousness of the crime, which carries a maximum of either seven or ten years imprisonment, but also the seriousness of your conduct, and I have already mentioned the aggravating factors of it.
…
The credit that you are to receive for your guilty pleas, personal considerations and your co-operation is considerable and so in relation to all of these offences you are sentenced to two years imprisonment.
On 18 November 2005, the High Court of New Zealand allowed Mr Ilolahia’s appeal to apply for home detention in relation to serving his sentence.[12] There was no evidence of the outcome of any such application, however it appears this was either unsuccessful or not pursued because Mr Ilolahia was imprisoned in Christchurch Men’s Prison up until June 2006. In his judgment, Justice Hansen noted that Mr Ilolahia’s ‘offending clearly has had [a] significant impact upon the complainant’, but also that ‘it is clear that it is unlikely this offender will offend in any similar way again’.[13]
[12] Exhibit R4, [16].
[13] Ibid [10].
In June 2006, after approximately 7 months in Christchurch Men’s Prison, Mr Ilolahia was removed from New Zealand to Tonga, with the removal order stipulating a 5 year ban on Mr Ilolahia applying for a New Zealand visa.[14]
[14] Exhibit R2, T25, pages 264 and 283.
In February 2011, Mr Ilolahia arrived in Australia on a Subclass 456 Business (Short Stay) visa.[15]
[15] Exhibit R2, T27, page 327; Exhibit R1, T15, page 223.
In May 2011, Mr Ilolahia was granted a Class TE Subclass 421 (Sport) visa, having been sponsored by the Gungahlin Eagles Rugby Club in the Australian Capital Territory (ACT).[16]
[16] Exhibit R1, T15, page 158; R2, T19, page 228; T27, page 327.
In September 2011, the Minister’s Department sent a notice to Mr Ilolahia inviting him to comment on its intention to consider cancelling his visa under subsection 501(2) of the Migration Act 1958 (Migration Act), due to his ‘substantial criminal record’.[17] Mr Ilolahia responded to the Department in January 2012.[18]
[17] Exhibit R2, T22, pages 248-253.
[18] Exhibit R2, T25, pages 262-272.
In November 2011, Mr Ilolahia married Thervaini Ilolahia.[19]
[19] Exhibit R1, T4, page 167; R2, T25, page 289.
On 28 March 2012, Mr Ilolahia was informed of the decision by a delegate of the Minister not to cancel Mr Ilolahia’s Class TE Subclass 421 (Sport) visa under subsection 501(2) of the Migration Act.[20]
[20] Exhibit R2, T28, pages 355-357.
In January 2016, Mr Ilolahia became an Australian permanent resident with the granting of a Partner (subclass 801) visa that remains in effect.[21]
[21] Exhibit R1, T2, page 10; T17, page 226.
In December 2017, Mr Ilolahia applied for Australian citizenship by conferral.[22]
[22] Exhibit R1, T2, page 10; T4, pages 134-172.
On 20 March 2020, a delegate of the Minister refused Mr Ilolahia’s application for Australian citizenship because the delegate was not satisfied that Mr Ilolahia was a person of good character.[23]
[23] Exhibit R1, T2, pages 7-15.
On 13 May 2020, Mr Ilolahia applied to the Tribunal for review of the decision to refuse his application for Australian citizenship by conferral.[24]
LEGISLATION & POLICY
[24] Exhibit R1, T1, pages 1-6.
Citizenship Act
The Preamble to the Citizenship Act states that:
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.
Part 2 of the Citizenship Act sets out the manner in which a person can become an Australian citizen. Division 2 of Part 2 provides for the acquisition of Australian citizenship by application and Subdivision B of Division 2 sets out how a person is eligible for citizenship by conferral.
Section 20 in Subdivision B of the Citizenship Act relevantly states that a person becomes an Australian citizen under Subdivision B if the Minister decides under subsection 24(1) to approve the person becoming an Australian citizen.
Subsection 21(1) of the Citizenship Act provides that a person may make an application to the Minister to become an Australian citizen.
Subsection 24(1) of the Citizenship Act states that if a person makes an application for Australian citizenship by conferral under section 21, the Minister ‘must, by writing, approve or refuse to approve the person becoming an Australian citizen’. Subsection 24(1A) relevantly states that the Minister ‘must not approve the person becoming an Australian citizen’ unless the person meets the eligibility requirements to become an Australian citizen set out under subsection 21(2) of the Citizenship Act.
Subsection 21(2) of the Citizenship Act provides that a person is eligible to become an Australian citizen if the Minister is satisfied of a number of matters in relation to the person, including that: they are aged over eighteen at the time of the application; they are a permanent resident both when making the application and at the time of the Minister’s decision; and they satisfy the residence requirements under the Citizenship Act. Relevantly for this proceeding, subsection 21(2)(h) of the Citizenship Act states that a person is eligible to become an Australian citizen if the Minister is satisfied that the person ‘is of good character at the time of the Minister’s decision on the application’.
For completeness, the Tribunal notes that subsection 52(1)(b) of the Citizenship Act permits a person to make an application to the Tribunal for review of a decision under section 24 to refuse to approve the person becoming an Australian citizen.
Revised Citizenship Procedural Instructions
The Tribunal will generally follow policy guidance from the government in reviewing a decision, unless cogent reasons are demonstrated for it not to do so.[25] The Minister’s Department has issued the Revised Citizenship Procedural Instructions (Citizenship Instructions), which identify the legal requirements, and related policy and procedures, that apply to the assessment of an application for Australian citizenship under the Citizenship Act.[26] The Tribunal is not aware of any cogent reasons why it should not apply the Citizenship Instructions in this proceeding.
[25] Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179.
[26] Exhibit R1, T3, pages 103-133 and Exhibit R5.
Chapter 15 of the Citizenship Instructions ‘provides guidance on relevant matters to be taken into account when making a decision as to whether a person is of “good character” for the purposes of the Act, noting that the decision-maker must comply with statutory requirements, and exercise any discretionary power in light of the facts of the particular case’.[27] Paragraph 4.1 in Chapter 15 of the Citizenship Instructions relevantly states that:[28]
[27] ibid., page 112.
Good character refers to the enduring moral qualities of a person. A person who is of good character is likely to uphold and obey the laws of Australia and the other commitments made when making the Pledge of commitment should they be approved to become an Australian citizen.
This Instruction provides a framework for assessing an applicant under the ‘good character’ provisions. Decision-makers must:
·consider any character issues that arise on the facts of a case;
·consider all relevant information;
·guard against bias;
·be mindful that the requirement to be of ‘good character’ does not mean that a person must be of ‘perfect character’;
·be mindful that a person who may not have been of good character can become a person of good character;
·continue to assess the character issues until satisfied, on a reasoned basis, having regard to the available evidence that an applicant is, or is not, of good character.
In most cases, it would not be appropriate to automatically conclude that a person is not of good character based on the fact that the person has been convicted of an offence. A full assessment is required.
Paragraph 4.3 of Chapter 15 of the Citizenship Instructions discusses ‘good character’ as follows:[29]
[29] ibid., pages 115-116.
The term ‘good character’ is not defined in the Act. The Federal Court (FC) and the Administrative Appeals Tribunal (the AAT) have used the ordinary meaning of the words, and made reference to dictionary definitions. Most cases have adopted the 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.
The phrase ‘enduring moral qualities’ encompasses the following concepts:
·characteristics which have endured over a long period of time;
·distinguishing right from wrong; and
·behaving in an ethical manner, conforming to the rules and values of Australian society.
The good character requirement necessitates consideration of an applicant viewed in a holistic way; that is, all aspects of his/her life may be relevant to consideration of character.
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 the time the applicant held a visa, and during the time their citizenship application was lodged and processed.
Given the significance of the grant of Australian citizenship, the assessment of the applicant’s character is an important component in the Minister’s decision to approve or refuse the applicant’s citizenship application.
For example, in Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, DP 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 years’ time when he can demonstrate a longer period of positive contribution to the Australian community.
In Zheng v Minister for Immigration and Citizenship [2011] AATA 304, DP Forgie found the Preamble to the Act could provide assistance in identifying what the Australian society considers to be right and proper behaviour for the purposes of assessing good character.
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, DP Forgie stated:
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.
Government, both Federal and State, initiatives, such as the making of new laws or reviewing of existing laws, campaigns to raise awareness in the community, the appointment of Royal Commissions to investigate certain matters and make recommendations to government on issues that affect the community should be taken into consideration where relevant, as these issues are reflective of Australian community expectations.
Such issues could be, for example:
·media campaigns about domestic violence, which reflects both the community’s and the government’s stance on this issue;
·the Royal Commission into Institutional Responses to Child Sexual Abuse;
·State and Territory government approaches to Outlaw Motorcycle Gangs (OMCGs) and youth street gangs; or
·new laws regarding national security and terrorism.
These initiatives indicate that domestic violence and child sexual abuse in any form is not acceptable in the Australian community. Behaviour that impinges on the safety of, or creates fear in the community, is not acceptable. Persons taking part in, or condoning, such activities do not respect the rights and liberties of others in the community.
The citizenship decision-maker must assess whether the decision-maker is satisfied that the applicant is of good character at the time of decision. Such an applicant is likely to uphold the commitment they will make when making a Pledge to become an Australian citizen.
…
An applicant who is a person of good character would generally be expected to exhibit the following characteristics. Application of these principles should be considered in light of the facts of the particular case.
As a general proposition, a person who is of good character would:
· respect and abide by the law in Australia and other countries;
…
· not be violent, involved in illegal drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example multiple and/or repeated instances of recklessness exhibited by negligent or drink driving, excessive speeding or driving without a licence);
…
Application of these principles should be considered in the light of the facts of the particular case and should not be applied rigidly or inflexibly. The above examples are intended only to provide broad guidance to decision-makers about the types of behaviours which might support an adverse conclusion about a person’s character. Ultimately a decision-maker must exercise any statutory discretion bearing in mind the facts of any particular case.
It is also necessary to consider any other information that is relevant to a person’s character such as information provided by an applicant about his/her family life; for example, raising children, being in a stable home environment, being responsibly employed, paying taxes, any community work undertaken, and any other matter that is relevant to an assessment of character in the circumstances of a particular case. This would include expressions of genuine remorse for past wrong-doing and the time that has elapsed since the wrong-doing. Ultimately a decision-maker should weigh up all the factors relevant to an assessment of an applicant’s character, which might include a number of factors some of which support reaching an adverse conclusion about a person’s character and some of which support reaching a positive conclusion about a person’s character.

Paragraph 4.6 of Chapter 15 of the Citizenship Instructions concerns an assessment of good character under the Act and states that:[30]
The citizenship character assessment is informed by the applicant’s conduct prior to applying for a visa and during their time in Australia. It is an assessment of all the available information, including any information provided in the visa application process and while the applicant has been a visa holder in Australia and during the processing of the citizenship application.
oA good decision-maker does not seek out and only consider information that supports the decision that they want to make. All relevant information must be considered. This includes all information before the Department whether or not that information was provided for the purposes of a citizenship decision.
oInformation such as character references provided by people who know the applicant must also be considered.
oDecision-makers must guard against making erroneous assumptions.
oSteps must be taken as early as possible to identify cases that may be complex or sensitive for escalation to Citizenship Operations Section for advice.
[30] ibid., page 117.
Paragraph 4.7 of the Citizenship Instructions sets out factors that may be taken into account by decision-makers and relevantly states that:[31]
[31] ibid., pages 122-123.
Offences
The current citizenship application, previous citizenship applications, visa applications and passenger card declarations may also be checked for an acknowledgement of criminal convictions.
Decision-makers can only act on the basis that the verdicts of Australian courts, and the essential factual findings supporting the verdict, are correct. With convictions by overseas courts it may be necessary to take account of the independence of the judiciary in the particular country.
The necessity to act on the basis that the conviction is correct will apply regardless of whether the applicant maintains his or her innocence. If the conviction or sentence was appealed, the decision-maker should take the outcome of the appeal into account, not the original finding or sentence, except insofar as the original finding or sentence remains relevant (for example, particular views expressed by the trial judge may be referred to with approval by an appeal court).
…
Assessing the relative seriousness of the offence
·Consider the length of the sentence. Longer sentences carry more weight on a person’s character.
·Are there any ongoing obligations such as a good behaviour bond? Note: Subsection 24(6) of the Act prohibits citizenship being approved in such circumstances…
·Carefully consider sentencing remarks, as they give an insight into the nature of the offence and the character of the applicant at the time of sentencing. Decision-makers can obtain sentencing information by contacting the Criminal Registrar of the relevant court. Parole reports may also contain useful information (parole reports may be on the s501 visa cancellation file, should such a file exist). In some cases, victim impact statements may be relevant.
·It may be appropriate to consider whether the offending behaviour is the subject of any Government initiatives on particular types of behaviour, for example domestic violence, OMCGs and youth gangs.
·Were there victims of the offence? Were they children, the elderly or the disabled or others who were reliant on, or placed trust in, the applicant?
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 over an extended period, shows a disregard for the law and may support a finding that the applicant is not of good character. Decision-makers should consider whether the offending has become more serious or frequent over time.
Was the offence pre-meditated?
Sentencing remarks or court transcripts may provide insight into whether or not the judge was of the view that the offence was pre-meditated. That is, the person planned the offence. Pre-meditated offences would usually incur a heavier sentence, and therefore be given more weight in the assessment of character.
Was the offence committed overseas?
Decision-makers need to be aware that some offences in foreign countries do not have equivalents in Australia. Further, some conduct might be criminalised overseas and yet not be viewed in any negative light in Australia or may have been decriminalised in Australia.
For example, in some overseas countries a person’s political activity may lead to them being charged with political offences, whereas such behaviour is not criminalised in Australia. Likewise, adultery and homosexuality are not criminalised in Australia. Where there are offences in both Australia and an overseas country covering similar conduct, the sentencing principles may be very different. For example, the sentence imposed overseas may be grossly different to a sentence given out in Australia
For some offences committed outside Australia that resulted in a long sentence it may be useful for decision-makers to consider what sentence the offence would be likely to attract under Australian law. This may be determined by referring to the Crimes Act 1914 or relevant State and Territory legislation. Most legislation will set out the maximum penalty for a particular offence.
The decision-maker should consider the entirety of the circumstances, including any offences committed under Australian law.
The Citizenship Instructions also list a number of mitigating factors that decision makers should consider when assessing whether an applicant may be of good character and states as follows:[32]
[32] ibid., pages 127-128.
4.12 Mitigating Factors – could the applicant be of good character despite the adverse information
The discussion below expands on the points made above in section 4.11. The discussion focuses on criminal offences, but the principles are also relevant to any general conduct that suggests that the applicant is not of good character.
·What is the length of time since the offence and conviction?
There can be a long delay between offence and conviction. Each case should be assessed on its merits. Consider the seriousness of the offence, the nature of the offence, whether another person was harmed, and the rehabilitation process. In the case of a serious offence, a significant amount of time may have to pass before a decision-maker could be satisfied that the person is now of good character. In some very serious cases, it may never be possible to be satisfied that the person is 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?
There is no 'rule of thumb' that determines how much time must pass for a person to re-establish good character. Each case must be assessed on its merits.
Has the applicant made an effort to rehabilitate?
·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 programme that addresses risk factors relating to their offending?
·Have they moved away from bad influences, for example by disassociating themselves from a peer group or an organisation?
·Decision-makers should recall that for some offences, there is no rehabilitation or counselling course available to address the offending. For some offences, the only evidence of rehabilitation is a lack of further offending of that type. If the offender does not have a course to attend, then decision-makers are not to place weight on a lack of course attendance.
What was the applicant’s age at the time the offence was committed?
If the applicant committed the offence at a young age, the offence may be given less weight. The person may have matured and gained greater respect for upholding the law, and criminal offences from that period of life may not be indicative of their current character. This will depend on the nature of the offending and any subsequent offences.
Were there any extenuating circumstances relating to the offence?
An offence committed as a result of duress or psychological disturbance (including disturbance caused by medications other than recreational drugs), may be given less weight. Any claims of mental illness should generally be supported by a report from a psychiatrist or psychologist. Decision-makers should discuss such cases with their supervisors and consult Citizenship Operations if necessary.
Is there any other evidence that the person is of good character?
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.
·It is open to decision-makers to contact individuals who have provided a referee report for the applicant.
·Decision-makers should not attribute less weight to a character reference merely because the text does not contain an explicit statement of support for the applicant acquiring Australian citizenship, unless the text sets out that it is clearly written for another unrelated purpose.
4.13 Weighing up the evidence
The question for decision-makers is whether or not the decision-maker is satisfied that the person is of good character at the time of decision on the citizenship application. This requires the decision-maker to weigh up all of the relevant evidence.
Decision-makers should consider the following matters:
·Would a person of good character behave the way the applicant did?
·What evidence is there to demonstrate that the applicant has upheld and obeyed the law?
·Has the applicant behaved in accordance with Australia's community standards, such as obeying the law?
·Does the applicant share Australia’s democratic beliefs and respect the rights and liberties of its people?
·Has the applicant taken steps to rehabilitate or change their lifestyle and become a person of good character?
·Are there any other factors that are relevant to an assessment of the applicant’s character?
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 time. The amount of time depends on the merits of each case, but in most cases will go back prior to any visa application if the person is applying for citizenship by conferral.
If a person has committed a serious offence (such as murder, sexual assault, war crimes, crimes against humanity, genocide or crimes against children) the period would be much longer, potentially over a period of many years. Depending on the offending and the circumstances, 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.
EVIDENCE
Mr Rutikha Ilolahia
Mr Ilolahia provided the Minister’s Department with an undated statement in 2017 supporting his citizenship application (First Statement), which relevantly stated:[33]
[33] Exhibit R1, T4, page 158.
I'm writing to address my previous criminal record over 10 years ago, which occurred in New Zealand whilst I was on a scholarship for Rugby and school. Please see attached for my record. I was a young and foolish boy. I regret the decision I had made, being alcohol fuelled at the time, choosing to have a "relationship" with a minor. It was not ongoing but it was mutual. This does not excuse my actions but at the time I didn't know any better. Definitely being in the wrong place at the wrong time and surrounding myself with the wrong people. Ultimately ruining any chance of success in my rugby career.
The girl's father found out and called authorities, understandably. Although mutual, due to the age difference, I was charged and sentenced. I co-operated, was very remorseful and ashamed of my actions. I had no support and limited understanding of the legal process. At the time, foreign country to me. Due to my good behaviour, good character and no prior convictions, my sentence was shortened and I was sent back home to Tonga. Ever since up till now I have had no criminal record or convictions.
Years after I was blessed enough to have another opportunity at my passion and talent in rugby, which seen me travel to Australia in 2011. I travelled to Australia for a rugby tournament in 2011, which I was then offered a position to play for a premier division in one of Canberra's local clubs- Gungahlin Eagles Rugby Union. There was a miscommunication later on with my visa and my declaration which I was not aware of until I was notified of it later on. Our team (Tonga) managers at that time filled out all our declarations and to be honest I wasn't aware I had to declare, especially being that I had mentally put it behind me.
I was then quick to respond and with my Lawyer/Migrant agent I was able to rectify and meet the required standards to satisfy immigration. I have never had my Aus visa cancelled. I have no restriction's in Travelling to New Zealand.
Today, with hard work, I am a very blessed man. I have been happily married for 6 years, I have 4 beautiful children under 5 years of age.
I am the sole income earner for my home, allowing my wife (her choice) to raise our children comfortably.
I was of recently (had to postponed due to my latest addition arriving 8weeks prem.) studying for my WHS cert IV with plans do graduate and further onto becoming a WHS specialist - helping keep our work place and community safe.
I am also still playing in our local premier division for rugby, recently taking out both the club and capitals top awards.
I am very proud of my achievements and even more so thankful for the opportunities Australia has since provided me.
My family are Australian Citizens. I would love nothing more than to concrete my feet in Australia alongside my family. We couldn't imagine calling anywhere else home.
Mr Ilolahia provided to the Tribunal an undated statement filed in February 2021 in support of this application (Second Statement), which relevantly stated that:[34][35]
[34] Exhibit A1.
I’m writing this letter to apologise for any misunderstanding my previous statement may of caused.
I take full responsibility for my actions. Of course, I am remorseful. I paid for my mistake but most of all the hurt I caused. It was a terrible misjudgement made by a not yet mature version of who I am today.
I served my time for my conviction. I bared the shame and sadness of those around me.
I was put down and ridiculed at the best of times. I lost opportunities, my education was ceased, and my career was cut before it began. I served my time and I will never go back.
I try every day to be the best version of who I can be.
I am a devoted father and husband. I am committed to helping my community, my faith but most of all my family.
I could never imagine life without my wife and children. Nor would I ever jeopardise the opportunities and blessings I have been given to be this better person.
I am not perfect, but I am always striving to do better then yesterday. I have grown in many ways.
I am older and wiser. I have proven my character with every challenge or difficult situation I have since faced.
The opportunity to be an Australian Citizen would mean that I can continue to provide the best care to my wife and children but most of all, it will mean my family can find comfort that I will be able to take care of them.
I am not the best communicator but the amount of love I have for my growing family has no measure. I have not enough words to describe or explain how much they themselves have helped me into this growth and changes. Australia is their home. I don’t want to be anywhere else but by their side to fulfil my duty of care as a husband and a father.
Mr Ilolahia gave evidence at the hearing and told the Tribunal that he regretted the offending. He acknowledged that he ‘did it and did time’, but had learnt from this experience. Mr Ilolahia is now seeking to live his life ‘with not making the same mistakes’ and was teaching his children ‘right from wrong’ in order to ‘lead a better life’.
Under cross-examination from the Minister’s representative, Mr Ilolahia said he recalled making the First Statement in 2017 with his citizenship application, but did not remember its content. Mr Ilolahia was taken to the first paragraph of the First Statement, extracted above, and was asked whether he still held the opinion that his ‘relationship’ with the 12 year old girl was ‘mutual’. Mr Ilolahia said he did not, he had done the ‘wrong thing’ in relation to both the First Statement and the offending and he should have admitted his wrongdoing.
Mr Ilolahia was then asked whether the Second Statement, filed with the Tribunal in February 2021 and extracted above in these reasons, was made in response to the Minister’s Statement of Facts, Issues and Contentions filed in this proceeding in December 2020, which contended that Mr Ilolahia was not remorseful and had limited insight into his offending. Mr Ilolahia agreed that the Second Statement was made in response to this document and said that he admitted to everything in the First Statement but was ‘finding excuses’ and therefore wrote the Second Statement, including because he was ‘seriously remorseful’, admits to everything, is a changed man and is looking to the future. Mr Ilolahia however denied that the Second Statement was made because he thought he would be unsuccessful in this proceeding if he did not correct his earlier statement regarding mutuality. In response to a question regarding what had changed between the First Statement in 2017 and the Second Statement in 2021, Mr Ilolahia told the Tribunal that he wanted to confirm that he truly regretted what he did and said, that he looked at his own daughter and other children and did not want anything to happen to them or for them to repeat his mistakes. Mr Ilolahia then confirmed that he had children at the time of making the First Statement, but that he had a different respect for women now he had a daughter because they were ‘significant’. Mr Ilolahia also said he did have respect for women when he made the First Statement and since the offending he had a ‘different view’.
Mr Ilolahia later confirmed under cross-examination that his daughter was born in 2015 and he therefore had a daughter in 2017 when he made the First Statement regarding the mutuality of the interaction that led to his conviction in New Zealand. In this regard, the Minister’s representative put to Mr Ilolahia that nothing had changed in his life except having received the Respondent’s Statement of Facts, Issues and Contentions. Mr Ilolahia replied that he had revisited the First Statement and everything in his life had changed since he made the ‘mistake’. Mr Ilolahia said that when he wrote the First Statement in 2017 he did not read the Tribunal documents, but when he did read the Statement of Facts, Issues and Contentions he made the Second Statement.
Mr Ilolahia was asked the meaning of his statement that his ‘relationship’ with the 12 year old girl was ‘not ongoing but it was mutual’ and replied that ‘sometimes it happen and sometimes not’; it was ‘just mutual’. This was explained to mean that sometimes he had sexual intercourse with the girl and sometimes he did not. Mr Ilolahia however told the Tribunal that this offending was his fault and not the young girl’s fault. When asked again about it being ‘mutual’, Mr Ilolahia said ‘sometimes turn up and yeah…don’t know how to explain’. Mr Ilolahia said that he now did not consider it to have been ‘mutual’, but rather that it was ‘stupid’ because he ‘should have known better’.

Mr Ilolahia told the Tribunal that he had thought of the impact on the victim of his offending and said that it was have affected her self-confidence and her ‘life would be changed’.
Mr Ilolahia said that he is involved in ‘helping out’ coach junior rugby teams from under 14 to under 16, but does not hold a working with vulnerable people card issued by the ACT, despite trying to obtain one for a ‘few years’. Mr Ilolahia told the Tribunal that his applications for this accreditation had been rejected because of his conviction and he only became aware during his evidence in this proceeding that such conviction disqualifies him from holding a working with vulnerable people card. Mr Ilolahia also told the Tribunal that the parents of the children in the rugby teams do not know of his conviction.
Mr Ilolahia was referred to a character reference from Mr Timothy Davis dated 1 December 2017,[36] whom he said was the ‘owner’ of the Gungahlin Eagles Rugby Club, and Mr Ilolahia said that he was unsure whether Mr Davis was aware of his conviction.
[36] Exhibit R1, T4, page 160.
Finally, Mr Ilolahia was asked about his employment and confirmed that he had been working for ‘IC Formwork’ in the ACT for 7 years, but told the Tribunal that he did not provide a reference from his employer because he did not think it was required.
Mrs Thervaini Ilolahia
Mrs Ilolahia, the Applicant’s wife, provided an undated written statement to the Department in 2017 for its consideration of Mr Ilolahia’s application for Australian citizenship, which relevantly stated that:[37]
We have been married for 6 years and going. I was aware of his past in the beginning of our relationship. We all make mistakes in one shape or form. In saying this, Rutikha has always been a devoted and committed partner who has even more so grown with his responsibilities as a husband and father.
He is both a great example in our home, workplace, community and church. He is honest, loyal, big hearted and hard working. He is always encouraging others to do their best and is always the first to lend a helping hand.
He loves Australia and being "Australian". He definitely makes use of every opportunity Australia offers and even gives back in many ways.
My children and I are so lucky to have him and couldn't imagine not having him with us.
[37] Exhibit R1, T4, page 159.
Mrs Ilolahia did not provide a written statement in this proceeding, but appeared by telephone at the hearing to give evidence in support of her husband. Mrs Ilolahia told the Tribunal that her husband was the ‘most genuine, loving and caring man’ she had ever met, apart from her own father. Furthermore, Mrs Ilolahia said that her husband’s communication was ‘not number one’, but he tries his best through his actions; he is a husband, father and provider and Mrs Ilolahia had not had any problems ‘with anything’, although when he does ‘me and the kids hear about it’.
Mrs Ilolahia said that Mr Ilolahia had definitely made ‘accidents’, but despite not being perfect he ‘did his best to make better’ and was said to bring out the best in those he meets. Mrs Ilolahia further told the Tribunal that her husband was a ‘good man and hard worker’.
By way of cross-examination, Mrs Ilolahia confirmed that her reference to ‘accidents’ was to the ‘mistakes’ he had made in relation to offending in New Zealand. Mrs Ilolahia said that her husband took full responsibility for this offending, he knew what he was doing and regrets every moment.
Mr Kilifi Fangupo
Mr Fangupo made a written statement dated 17 November 2020, which stated that:[38]
I am writing to support Rutikha llolahia's application for Australian citizenship. I have known Rutikha for approximately 23 years, since we were in secondary school. We played rugby together and we both came to New Zealand in 2003 on rugby scholarships to Waitaki Boys High School in Oamaru. I know that Rutikha has a conviction from 2005 which he regrets. He has learnt from that and has had no further convictions since.
Rutikha moved to Australia in 2011 and we have kept in touch online since then. He is now married with four kids, he is hardworking and a good person. He has grown up and changed a lot from the young man who he was at the time of his conviction.
[38] Exhibit A2.
Mr Fangupo gave evidence by telephone to the Tribunal and confirmed that he had known Mr Ilolahia since they attended secondary school in Tonga where they were said to be prefects. They moved to New Zealand on scholarships where they played school and club rugby and worked together in a factory. Mr Ilolahia was, in Mr Fangupo’s words, ‘hard working’ on and off the rugby field.
By way of cross-examination, Mr Fangupo confirmed that he had remained in contact with Mr Ilolahia during his time in gaol and afterwards when he was removed from New Zealand to Tonga and they are still in contact. Mr Fangupo clarified his evidence and said that he saw Mr Ilolahia at Court in New Zealand in 2005 and ‘caught up with’ him when Mr Fangupo visited Tonga for his mother’s funeral. While Mr Ilolahia was in Tonga and Mr Fangupo in New Zealand they did not correspond due to the expense however, in recent years, they correspond via electronic means on a weekly, quarterly or 6 monthly basis. Mr Fangupo said Mr Ilolahia was ‘always like one of my brothers’.
In relation to the time of Mr Ilolahia’s offences, Mr Fangupo said he was away playing rugby and when he returned Mr Ilolahia was ‘already gone’. Mr Fangupo said Mr Ilolahia had told the truth and regretted his offending, at which time he was said to have been ‘intoxicated’, although he noted that he ‘never really talked to him about it’. In relation to the circumstances surrounding the offending, Mr Fangupo said that Mr Ilolahia had told him he got home, was ‘too drunk’, went to the lounge and the girl was ‘walking past’ and they went to the room and her dad ‘caught them’.
Mr Peter Cook
Mr Cook made a written statement dated 16 November 2020, which relevantly said that:[39]
I coached Waitaki Boys High School, 1st XV, in Oamaru, South Island, New Zealand, in the early 2000’s. It was during this time that I had the privilege of meeting and coaching Rutikha Ilolahia, (Ruti), who had come from Tonga College to Waitaki Boys on a Rugby Scholarship.
Not only was he a very good rugby player, but he was an impressive young man. He was respectful, well-liked by his peers and had great leadership skills.
He quickly became a welcome part of my family and other families of his team mates.
During his time in Oamaru, Ruti was convicted of a crime. This was a serious lack of judgement from a young fellow at the time. I hope this will not have a detrimental effect on him trying to get citizenship, as my opinion of him as a person did not change.
I wish him and his family, all the best in his endeavours to become an Australian citizen. I’m sure he will be a valued member of Australian Society.
[39] Exhibit A4.
Mr Cook gave evidence to the Tribunal by telephone and said that, when Mr Ilolahia was in New Zealand, he brought him into his family, Mr Ilolahia got on well with everyone, he was fun loving, a very good rugby player and always welcome in their home. Mr Ilolahia was also described by Mr Cook as demonstrating leadership.
Under cross-examination, Mr Cook was referred to his above written statement and the words ‘my opinion of him as a person did not change’ as a result of Mr Ilolahia’s offending. Mr Cook told the Tribunal that he respected Mr Ilolahia as a person and ‘knew who he was deep down’. Equally, Mr Cook said he knew of the crime committed by Mr Ilolahia and its seriousness, but told the Tribunal that it was out of character. Mr Cook again confirmed that his opinion of Mr Ilolahia did not change, but disagreed with the proposition that his view was fixed, saying it ‘depends what it was’. Mr Ilolahia had said ‘not a lot’ about his offending and Mr Cook told the Tribunal he found out from other people that it involved sexual intercourse with an underage person. Mr Cook said he did not know the age of the victim. When he was told by the Minister’s representative that the girl was then 12 years old, Mr Cook said he did not think this would change his opinion of Mr Ilolahia because he was a young man who had made a mistake and he could not be blamed for one mistake, despite acknowledging it as a serious crime and his disappointment with Mr Ilolahia. Mr Cook told the Tribunal he considered Mr Ilolahia deserved a second chance. Mr Cook said he last saw Mr Ilolahia at Court in 2005 and had little contact with him since this time.
Pastor Akhil Ashtaputre
Pastor Ashtaputre made a written statement dated 24 November 2020, which said that:[40]
I, Akhil Ashtaputre, pastor of the Canberra National Seventh-day Adventist Church, have know[n] Rutikha Ilolahia for a period of approximately three years. I have been aware of his former conviction for which he has served his sentence.
In the three years I have know Rutikha, he has presented himself to be a man of honour, respect and humility. He, as far as my understanding goes, shows remorse for his actions and has lived his life in keeping with that conviction. He is a hard working man and a dedicated husband. His children are fortunate to have a man who cares so deeply and goes out of his way to provide, nurture and protect them as their father.
Should anyone have a concern for the character of Rutikha, I would be more than willing to have a conversation with them if necessary.
[40] Exhibit A3.
Pastor Ashtaputre gave evidence to the Tribunal by telephone at the hearing and confirmed that he had known Mr Ilolahia since late 2017, but their relationship had strengthened since 2018 when they were involved in bible studies. Pastor Ashtaputre said he visited Mr Ilolahia and his family weekly in 2020.
By way of cross-examination, Pastor Ashtaputre said he knows Mr Ilolahia personally and they had talked of his offending, which he described as an accusation involving a female. Pastor Ashtaputre understood that Mr Ilolahia had been convicted, ‘served time’ for his offending and was ‘regretful of it’. He told the Tribunal that Mr Ilolahia had told him the age of the victim but could not recall that detail, although he knew she was ‘underage’.
Pastor Ashtaputre was asked whether he knew what led to the offences and he replied that alcohol was involved, Mr Ilolahia had a ‘lapse in judgment’, was celebrating with friends, did not understand what people were saying due to his poor grasp of the language and judgment.
The Minister’s representative asked Pastor Ashtaputre what he understood of Mr Ilolahia’s remorse to which he said that he had been involved in a situation he ‘shouldn’t have’ and regrets his action and the associated pain and suffering. Mr Ilolahia had told Pastor Ashtaputre that he wanted to be a better father, husband and a good example.
Pastor Ashtaputre told the Tribunal that he became aware of Mr Ilolahia’s citizenship application at the end of 2019 and found out about his conviction in 2020. He also said that he knew Mr Ilolahia was involved in helping out with the Gungahlin Rugby club.
Ms Sela Takau
Ms Takau made a written statement dated 17 November 2020, which relevantly stated that:[41]
I am the eldest sister of Rutikha Ilolahia, named above. I am writing in support of my brother's application for Australian citizenship.
I have been living in New Zealand for the last 30 years and have been the main support person for all my other siblings who come through New Zealand, including Rutikha. While he was here in New Zealand a few years ago and I was hoping that he would be able to live here permanently with me so we can support each other.
However, he was young, naive and immature and fell into the temptation of his youth. He was convicted, served his time and because of this conviction, he had to be returned to Tonga. He learnt his lesson the hard way and has remained a good person that he should be ever since.
Rutikha is now wiser, grown up, mature and have been blessed with a beautiful family of his own. I believe that he would support his growing family better if he becomes an Australian citizen. It will be very much appreciated if his application for citizenship with be in your favour.
I wish Rutikha the best of luck with his application.
[41] Exhibit A5.
Ms Takau gave evidence by telephone to the Tribunal at the hearing and confirmed that she had known Mr Ilolahia since his birth and whom she said was a ‘good boy’.
In relation to Mr Ilolahia’s conviction, Ms Takau said that he was away from home and was ‘tempted’ by the girl; he served his time and was then deported to Tonga, with no further offending. Mr Ilolahia was said to have a family to support and stays out of trouble; he had been a ‘good father’ and ‘good boy since conviction’ and Ms Takau hoped this continued.
By way of cross-examination, Ms Takau was asked to explain the reference to her brother being ‘tempted’, to which she said that this was Mr Ilolahia’s explanation; the ‘girl came onto him’. In this regard, Mr Ilolahia was said to have been ‘young and naive’ and had fallen ‘into temptation’. Ms Takau said she was not told anything further about the offending and was satisfied with her brother’s explanation, including because it was said that these matters are not generally discussed in their culture, especially between siblings.
Ms Takau was asked whether she was told by Mr Ilolahia the age of the girl. She recalled that he said the girl was 15 at the time. When Ms Takau was told the girl was in fact 12 years old at the time of the offending she replied, ‘gosh’ and ‘oh my gosh’ and stated that it would be ‘unbelievable’. Ms Takau told the Tribunal that she was ‘unsure’ whether this information changed her opinion or acceptance of Mr Ilolahia’s explanation to her that he fell into ‘temptation’; she said that she was ‘biased’ and that he was her brother ‘regardless’, but that it was ‘unacceptable’ and ‘very wrong’ if the girl was 12 at the time. Ms Takau said that, although she thought Mr Ilolahia was remorseful, he may have told his family that the girl was 15 because he ‘didn’t want to upset us anymore than he had already’. Ms Takau told the Tribunal that she was crying on the phone when she heard of the offences and that it was ‘unacceptable behaviour’.
CONSIDERATION
Having regard to all the evidence, the Tribunal is not satisfied that Mr Ilolahia is of ‘good character’, as required by subsection 21(2)(h) of the Citizenship Act, to be eligible to become an Australian citizen.
It was not in dispute that Mr Ilolahia meets all other requirements to be eligible for Australian citizenship under subsection 21(2) of the Citizenship Act. However, at this time, the Tribunal is not satisfied that Mr Ilolahia meets the requirement to be of good character in order to be eligible for conferral of Australian citizenship.
In 2005, Mr Ilolahia was convicted in New Zealand of two offences of sexual intercourse with a female aged 12 to 16, which offending occurred between December 2004 and August 2005. The victim was 12 years old at the time of the offences. Mr Ilolahia was 19 and 20 during this period and was sentenced to two years imprisonment for each offence, to be served concurrently. For the avoidance of doubt, the Tribunal considers that the New Zealand judiciary is of high standing and there is no question as to its independence. Mr Ilolahia served approximately 7 months in gaol and was then removed from New Zealand by its immigration authorities to Tonga.
The sentencing remarks from the District Court in New Zealand, extracted in detail in these reasons, demonstrate the seriousness of the offending. Mr Ilolahia, originally from Tonga, was staying with the family of the 12 year old girl in New Zealand, having been in that country on a rugby scholarship. The Judge described the aggravating features as being Mr Ilolahia’s position of trust in the home, his position of power over the 12 year old girl who was said to look up to him as a ‘big brother’, the significant age difference, including that he was an adult of 19 and 20 during the course of his offending and the girl was very much a minor, he had intercourse with her possibly five or six times over an eight month period, he infected her with chlamydia and that the impact of this and his breach of trust will have been long lasting. Additionally, the Court noted that Mr Ilolahia, through his then counsel, told the Judge that ‘this young lady initiated these offences, that she came on to you’.[42] The Judge went on to describe this as ‘very difficult to believe in a 12-year-old girl, but even if it is the case it does not excuse what you did’.[43]
[42] Exhibit R3, at [17].
[43] Ibid.
The Tribunal has also considered the mitigating factors described by the Judge when sentencing Mr Ilolahia, including his relatively young age, his ‘exemplary character’, guilty plea, no prior convictions, co-operation and admissions of earlier intercourse than the last occasion when he was caught by the girl’s parents. In this regard, the first charge of sexual intercourse with a female aged 12 to 16 related to Mr Ilolahia having intercourse with the girl this final time in August 2005 and the second charge related to the intercourse that had occurred from December 2004 until August 2005. This latter, second charge was brought following Mr Ilolahia’s admissions to the police.
Following an appeal by Mr Ilolahia to apply to serve his term of imprisonment in home detention, the High Court of New Zealand, which allowed that appeal, noted that one of the offences carried a maximum penalty of at least 7 years imprisonment. The Tribunal considers that such offending would attract a similar or more severe penalty in Australian jurisdictions. For example, under subsection 66C(1) of the Crimes Act 1900 (NSW), any person who has sexual intercourse with a child who is of or above the age of 10 years and under the age of 14 years is liable to imprisonment for 16 years. Justice Hansen of the High Court in New Zealand noted as a ‘serious aggravating feature’ Mr Ilolahia’s attribution of blame to the girl for his offending which he described as ‘an extraordinary proposition’.[44] There is, however, a recurring theme in the evidence before this Tribunal of Mr Ilolahia seeking to downplay his offending by reference to the allegedly consensual nature of the intercourse with a minor. The Tribunal finds that this demonstrates Mr Ilolahia’s lack of insight into his offending and his incomplete acceptance of responsibility for those very serious offences.
[44] Exhibit R4, at [14].
For example, at the time of making his application for Australian citizenship in 2017, Mr Ilolahia provided the Minister’s Department with the First Statement, extracted above in these reasons, in which he described ‘choosing to have a “relationship” with a minor’ that ‘was not ongoing but it was mutual’.[45] Further on in the First Statement, Mr Ilolahia said that ‘[a]lthough mutual, due to the age difference, I was charged and sentenced’.[46] The Tribunal finds these sentiments disturbing, especially when made only recently in support of his application for citizenship and 12 years after he was sentenced for the offending. Sexual intercourse with a 12 year old child is rightly considered and treated as a very serious criminal offence in both New Zealand and Australia. The offending spanned approximately 8 months. It was not a one-off incident which, for the avoidance of doubt, would in no way excuse or minimise such offending. Mr Ilolahia was an adult and was in a position of trust in relation to the girl. These recent sentiments evidence that Mr Ilolahia does not completely understand that a sexual relationship between a 12 year old and an adult cannot be 'mutual'. In this regard, ‘good character’ has rightly been described as referring to ‘the enduring moral qualities of a person’, which encompass concepts such as characteristics exhibited over a long period of time, distinguishing right from wrong and behaving in an ethical manner.[47] In addition, the Citizenship Instructions propounded by the Minister’s Department explicitly state that child sexual abuse in any form is not acceptable in the Australian community and people taking part in, or condoning, such activities do not respect the rights and liberties of others in the community. The Citizenship Instructions further state that a person who is of good character would respect and abide by the law and not be involved in unlawful sexual activity. As a result, the Tribunal finds Mr Ilolahia’s offending is not consistent with the actions of a person of good character.
[45] Exhibit R1, page 158.
[46] Ibid.
[47] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432.

The Tribunal is also not satisfied that Mr Ilolahia fully accepts responsibility for his offending and is therefore genuinely remorseful. While Mr Ilolahia has expressed his remorse for his actions, their impact on him, his family and that of the young girl, this contrition appeared to the Tribunal to not be fulsome in circumstances where Mr Ilolahia was still in 2017 describing his sexual offending as an adult as being ‘mutual’ with a 12 year old girl. Mr Ilolahia told the Tribunal that he was wrong to say such things in his First Statement, but accepted that he only sought to correct such sentiments following receipt of the Minister’s Statement of Facts, Issues and Contentions in this Tribunal proceeding late in 2020, some 15 years after being sentenced for his crimes. Additionally, when trying to explain what had changed between making the First Statement in 2017 and the Second Statement in 2021, Mr Ilolahia told the Tribunal that it was the birth of his daughter. However, Mr Ilolahia later acknowledged under cross-examination that his daughter had been born in 2015, two years before he made the First Statement. While the Tribunal does accept that Mr Ilolahia regrets his actions from 2004 and 2005, these conflicting statements do not satisfy the Tribunal that he accepts full responsibility for his offending and is genuinely remorseful, including because he has tried to mitigate the seriousness of his offending and demonstrated a lack of insight into the offending, its seriousness and consequences. Moreover, Mr Ilolahia’s sister, Ms Takau gave evidence to the Tribunal that her brother had told her the girl was 15 years old at the time of the offending, not 12. Ms Takau was genuinely shocked when told the girl’s actual age by the Minister’s representative. She described this as ‘unbelievable’ and ‘unacceptable’, although considered that Mr Ilolahia downplayed the situation so as not to cause further distress to his family. However, the Tribunal finds this lack of honesty, even to his own family, again demonstrates Mr Ilolahia’s failure to completely accept his crimes and their severity.
To this end, the Tribunal also notes that there was no evidence that Mr Ilolahia had undertaken any form of rehabilitation in relation to sexual offending or alcohol abuse, in circumstances where he said that drinking had played a part in his offending. Moreover, Mr Ilolahia continues to ‘help out’ coach a junior rugby team in the ACT without holding the requisite working with vulnerable people card to undertake such a role. Mr Ilolahia told the Tribunal that he had been trying for a few years to obtain this accreditation, while he continued to be involved at the club, but had been refused; nevertheless he continues to participate in this coaching role and the parents of those children at the rugby club do not know of his criminal history involving sexual intercourse with a minor. The Tribunal finds this inexplicably negligent and unnerving situation further weighs against a finding that Mr Ilolahia is of good character as required by the Citizenship Act.
While the mitigating factors in favour of Mr Ilolahia do not outweigh the seriousness of the offence and the subsequent and associated circumstances such that the Tribunal can be satisfied that he is of good character at this time, the Tribunal has considered these and discusses them below for completeness. As noted above, the Court in New Zealand acknowledged the mitigating factors in sentencing Mr Ilolahia, including his admissions, co-operation, guilty plea and otherwise unblemished criminal record. The Tribunal accepts that Mr Ilolahia has demonstrated some remorse in his submissions in this proceeding, however the extent of this remorse appears limited where, as mentioned above in these reasons, he has minimised the seriousness of his offending and continued until very recently to suggest that the sexual interaction was ‘mutual’, despite the fact that his victim was a 12 year old girl and he has not undertaken any form of rehabilitation to address potential risk factors related to the offending. In this regard, while Mr Ilolahia has not provided any evidence addressing the likelihood of reoffending, the Tribunal finds this prospect to be low, including having regard to the sentencing remarks of the Court in New Zealand, the length of time since his offending and his professed commitment to his family in Australia. The Tribunal finds that Mr Ilolahia has no other disclosable offences before or since his offending in 2004 and 2005 when he was 19 and 20 years old. Mr Ilolahia is married, has four children and has been employed at the same business in the ACT for 7 years. He also practises his faith and helps out coaching junior rugby teams, noting again the Tribunal’s complete unease with that situation maintained by Mr Ilolahia despite being refused the appropriate accreditation to work with children. Mr Ilolahia has developed positive links and made contributions within the community. This is evidenced by the references in support of Mr Ilolahia’s application for Australian citizenship, while noting that they do not address the specific details of his offending.
To this end, the Tribunal has had careful regard to those character references provided in support of Mr Ilolahia’s citizenship application and in this Tribunal proceeding, including the testimony of the witnesses at the Tribunal hearing comprising his Pastor in Australia, whom he has known for approximately 3 years, his sister and wife, his long-time friend living in New Zealand and a former rugby coach now based in Australia. However, the Tribunal only gives these references limited weight for the following reasons. References from Mr Ilolahia’s family are, as would be expected, supportive of his application and they hold him in high regard despite his offending, although noting that he had never disclosed the correct age of the girl to his sister, whom was deeply shocked when told at the hearing she was 12 at the time of her brother’s crimes. His friend Mr Fangupo has not seen Mr Ilolahia for many years, since the latter was living in Tonga and they only correspond by electronic means about general matters; he also did not have a full understanding of the circumstances of the offending. Mr Cook, the former rugby coach, had not communicated or seen Mr Ilolahia since he attended Court in 2005, some 16 years ago. His estimation of Mr Ilolahia was not diminished when told at the Tribunal hearing the victim was 12 years old. In this regard, all of these witnesses held the view that Mr Ilolahia is and always was a fundamentally good person who made a mistake in his offending while in New Zealand. However, as previously referred to in these reasons, there was no evidence of what Mr Ilolahia had done by way of rehabilitation to demonstrate his improved or rejuvenated character. Additionally, Mr Ilolahia had not told his character references, potentially apart from his wife, the full extent of the circumstances surrounding his offending. The only thing that went to evidencing Mr Ilolahia’s full acceptance of responsibility for the offending was his Second Statement, but this was made only this year after receiving the Minister’s submissions in this proceeding questioning this characteristic and insight. In this regard, the Tribunal finds that Mr Ilolahia was, until very recently, in a state of denial about the seriousness of the offences and his sole responsibility for their commission.
It was only Pastor Ashtaputre, who has known Mr Ilolahia since 2017, that had what could be described as a more fulsome understanding of Mr Ilolahia’s offending, but he had been told they were due to being under the influence of alcohol, being misled by other people and having a lack of English language at the time. This, however, is incompatible with the facts of the offending, which was not a one-off incident as Mr Ilolahia seemed to suggest to others, but spanned a period of 8 months during which time the victim was only 12 years old and constituted, in Mr Ilolahia’s view, some form of ‘relationship’ noting again that such a view is incompatible with the nature of the offences, as found by the Courts in New Zealand. For completeness, the Tribunal also notes that, while it has considered the references contained in the documents filed in this proceeding that were produced in relation to earlier visa matters relating to Mr Ilolahia, it gives these limited weight due to the circumstances in which they were made and also because some were not called to give evidence in this proceeding.[48]
[48] Exhibit R2, T25, pages 278-279, 302-303, 306-307 and 316.
The Tribunal accepts that further significant mitigating factors weighing in Mr Ilolahia’s favour are his relationship with his children, his family and his work and community connections. However, these factors do not outweigh the factors leading to the Tribunal not being satisfied that Mr Ilolahia is of good character under the Citizenship Act. That is not to say that Mr Ilolahia is of ‘bad character’; that is not the test under the Citizenship Act.
CONCLUSION
When considering the nature of Mr Ilolahia’s criminal offending, the Tribunal cannot at this time be satisfied that he is of good character pursuant to the Citizenship Act. In making this assessment, the Tribunal has considered Mr Ilolahia’s application for Australian citizenship together with all the evidence before the Tribunal, including the Citizenship Instructions and previous Court and Tribunal decisions regarding the assessment of good character.
The Tribunal has found that mitigating factors weighing in Mr Ilolahia’s favour are outweighed by his criminal offending and the associated conduct up until the time of the Tribunal’s consideration of his application. The length of time since Mr Ilolahia’s offending is a relevant mitigating factor, but their nature are such that this Tribunal cannot at this time find in his favour and be satisfied that he is of good character. Accordingly, for the reasons set out above, the Tribunal is not satisfied at this time that Mr Ilolahia is a person of good character for the purpose of subsection 21(2)(h) of the Citizenship Act. He is therefore not eligible to be conferred Australian citizenship, because he does not meet all of the eligibility requirements to become an Australian citizen set out under subsection 21(2) of the Citizenship Act. The Tribunal notes for completeness that Mr Ilolahia is a permanent resident of Australia and can re-apply for Australian citizenship in the future.
DECISION
The decision under review is affirmed pursuant to section 43(1)(a) of the AAT Act.

I certify that the preceding 79 (seventy nine) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

....................................[sgd]....................................
Associate
Dated: 15 April 2021

Date(s) of hearing: 22 March 2021

Date final submissions received: 23 December 2020

Applicant: By telephone

Solicitors for the Respondent:
Mr Adam Ray, Clayton Utz Lawyers

[2021] AATA 911

15 April 2021

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction

Standing

Date(s) of hearing:	22 March 2021
Date final submissions received:	23 December 2020
Applicant:	By telephone
Solicitors for the Respondent:	Mr Adam Ray, Clayton Utz Lawyers