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

Khodl and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2500 (26 July 2021)
Division:GENERAL DIVISION
File Number(s): 2020/4359
Re:Sascha Arne Khodl
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:26 July 2021
Place:Sydney

The reviewable decision made on 2 July 2020, to refuse Mr Khodl’s application for Australian citizenship by descent pursuant to section 17(1) of the Australian Citizenship Act 2007 (Cth), is affirmed.
.................................[sgd].....................................
Mrs J C Kelly, Senior Member
CATCHWORDS
CITIZENSHIP – application for Australian citizenship by descent – whether applicant is of good character – theft – possession of child/adolescent pornography – Australian Citizenship [Policy Statement] – Australian Citizenship Procedural Instructions – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Australian Citizenship Act 2007 (Cth) ss 16, 17
Crimes Act 1900 (NSW) ss 91H, 117
CASES
Chen and Minister for Immigration and Citizenship [2007]AATA1815
Drake and Minister for Immigration and Ethnic Affairs [1979] AATA 179
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 663; (1996) 68 FCR 422
SECONDARY MATERIALS
Australian Citizenship [Policy Statement] (27 November 2020)
Australian Citizenship Procedural Instructions – CPI 15 – Assessing Good Character under the Citizenship Act (reissued 26 February 2021)
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
26 July 2021
The reviewable decision

On 2 July 2020, a delegate of the Respondent, the Minister for Immigration Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister), refused the application made by Mr Khodl, the Applicant, for Australian citizenship by descent pursuant to section 17(1) of the Australian Citizenship Act 2007 (Cth) (the Act).
The delegate was not satisfied that the Applicant was of good character for the purpose of subsection 16(2)(c) of the Act.
The Applicant has applied to the Tribunal for review of the delegate’s refusal of his citizenship application.
The issue to be determined and the relevant law
The issue to be determined is whether the Applicant is of good character for the purpose of subsection 16(2)(c) of the Act. That provision applies to certain people who were born outside Australia and requires that the Minister, and the Tribunal as the decision-maker, must be satisfied that the person is of good character at the time of the decision on the application.
Section 17(1) of the Act provides that if a person makes an application under section 16, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Section 17(1A) of the Act provides that the Minister must not approve an application for citizenship made under section 16 unless the person is eligible to become an Australian citizen under subsection 16(2) or (3).
Relevant policy
I accept that this is a case where the policy in place at the time the Tribunal makes its decision is the applicable policy. That is evident from the terms of subsection 16(2)(c) of the Act. It is not of assistance to refer to authorities which address Ministerial directions issued pursuant to s 499 of the Migration Act 1958 (Cth) as the Respondent did Departmental policy is of a different character.
When the reviewable decision was made, the Departmental policy documents in force were the Citizenship Policy and the Citizenship Procedural Instructions (CPIs). On 27 November 2020, the Citizenship Policy was revoked and replaced by the Australian Citizenship [Policy Statement] (Policy Statement) which provides context for the CPIs which continue to apply, relevantly CPI 15 – Assessing Good Character under the Citizenship Act (CPI 15), which was reissued on 26 February 2021. I accept the Respondent’s submission that the apparent change in policy does not change the substance of the relevant considerations.
The Tribunal will ordinarily consider and apply lawful Government policy unless there is a cogent reason not to.[1]
[1] Drake and Minister for Immigration and Ethnic Affairs [1979] AATA 179.
In assessing the Applicant's character for the purposes of Australian citizenship, the Tribunal need not form an adverse view of the Applicant's character, but rather must be positively persuaded that the Applicant is of good character.[2]
[2] Chen and Minister for Immigration and Citizenship [2007] AATA 1815 (at [18]).
CPI 15 contains detailed guidance for assessing whether a person is of good character and includes quotations from cases.
It includes the following from Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 663; (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.
It quotes DP Breen in Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931:
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.
The facts
The Applicant was born in Germany in 1986 as Arne Krohn. He was adopted when he was a baby. He is 35 years old. He contacted his birth mother who is an Australian citizen in 2016. In 2018 he visited Australia for about a month and met her and her family. He was convicted in Germany of Theft on 19 March 2018 and of Acquisition and possession of written child pornographic material and acquisition and possession of written juvenile pornographic material on 26 January 2019. The latter conviction arose from a search of his apartment on 7 November 2017. The theft occurred on 14 February 2018. The Applicant is prohibited from employing, supervising, instructing and educating adolescents. He was fined 600 euros for the theft and 800 euros for the pornography conviction.
On 13 August 2019, the Applicant answered No, in response to the question on an eVisitor record for arrival in Australia Have you ever been convicted of an offence in any country?
On 10 September 2019, the Applicant answered No to the question on the arrival card Do you have any criminal convictions?
On 22 November 2019, the Applicant lodged his application for citizenship by descent. In response to the question Have you been convicted of, or found guilty of, any offences overseas or in Australia, the Applicant responded Yes.
Evidence
The Applicant, his birth mother and one of his three sisters gave evidence. The Tribunal was assisted by a German interpreter. The documentary evidence included the documents provided by the Applicant pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the T documents) and what was described at the Applicant’s Tender Bundle, which were documents the Applicant provided in support of his case in the Tribunal in addition to those in the T documents.
Consideration
The nature of the offending
The nature of the offending in relation to the offence of acquisition and possession of written child pornographic material and acquisition and possession of written juvenile pornographic material is clear from the translation of the Penal Order issued by a District Court in Germany on 29 January 2019 and certified on 30 January 2019 (the Penal Order). It stated that he had been charged with:
Obtaining over the Internet files containing images depicting sexual activity performed by, on or in the presence of a girl or boy under the age of fourteen, or depicting a fully or partially unclothed child in an unnatural, sexually suggestive pose, or depicting in a sexually suggestive manner a child’s unclothed genitals or buttocks, and files containing images depicting sexual activity performed by, on or in the presence of a person between the age of fourteen and eighteen, or depicting a fully or partially unclothed person between the age of fourteen and eighteen in an unnatural sexually suggestive pose, from other Internet users such that on searching your apartment [address]) on 7/11/2017 we found on your following data media:
-    Samsung mobile phone
-    Sony mobile phone
-    Acer laptop
a total of 910 child pornography files (thereof 36 videos) and 11 juvenile pornography files that you had collected there.
The Penal Order stated that the Applicant was fined $800 euros. These offences will be referred to as the child/adolescent pornography offences.
In addition to identifying the Applicant’s criminal offending, the Extended Police Certificate dated 17 July 2019 stated that the Applicant was prohibited from employing, supervising, instructing, and educating adolescents.
Child/adolescent pornography offences directly contribute to an industry of sexual abuse and exploitation of vulnerable children and adolescents, harming those children and adolescents and society more broadly. Paragraph 12 of CPI 15 states that such offences are to be considered of a serious nature. Paragraph 3.3 of CPI 15 provides that ‘child sexual abuse in any form is not acceptable in the Australian community’.
The Applicant’s offence of ‘theft’ of which he was found guilty on 19 March 2018 involved the theft of a mobile phone while he was at a mental health clinic. He was fined 600 euros.
Paragraph 12.2 of CPI 15 states that it may be useful to consider what sentence an offence would attract under relevant Australian law. The equivalent offences under the Crimes Act 1900 (NSW) are:
(a)for theft: larceny, under section 117, which has a maximum penalty of 5 years imprisonment; and
(b)for acquisition and possession of written child pornographic material and acquisition and possession of written juvenile pornographic material: Production, dissemination or possession of child abuse material, under section 91H, which has a maximum penalty of 10 years imprisonment.
On the evidence, these are the only offences that have been committed by the Applicant. They were committed within a matter of a couple of months at the end of 2017/beginning of 2018. I do not accept that they reflect a pattern of offending as the Respondent contended.
Failure to disclose criminal convictions
Despite having convictions, as set out above, in March 2018 and January 2019, the Applicant answered “no” to the following:
(a) On 13 August 2019, in his application for a Visitor (subclass 651) visa, the question:
Have you ever been convicted or any offence in any country (including any conviction which is now removed from official records)?
(b) On 10 September 2019, in his incoming passenger card, to the question:
Do you have any criminal convictions?
In is statutory declaration sworn 2 April 2020, the Applicant explained that he did not intend to keep information from the Australian government. The reason he did not mention his convictions was his misunderstanding and “desperation of leaving the toxic environment in Germany”. He understood that he needed to mention those matters when his mother and sister were helping him fill out his application for citizenship, even though had had already paid one of the fines and nearly half, 350 euros, of the other. He thought he did not need to mention them and apologised.
He did disclose his offending in the citizenship application when assisted by his mother and sister. That application required him to provide an original penal clearance for each country in which he had spent 90 days in the last 10 years which would disclose them in any event.
CPI 15 at paragraph 4 states that a person of good character would ‘not practise deception or fraud in dealing with the Australian Government’ including “intentionally providing false information … or other material deception during visa and citizenship applications’.
In 2019, the Applicant had paid the fine for the theft offence and was paying the fine for the child/adolescent pornography offences, although they had been committed almost two years before. He was subject to the ongoing prohibition from employing, supervising, instructing and educating adolescents. I am not satisfied that the Applicant did not intentionally provide false information in his visa application and arrival card.
Mitigating factors
The CPIs require consideration of mitigating factors that may demonstrate that an applicant is of good character, notwithstanding evidence of criminal conduct or other behaviour.
The Applicant has provided letters of support from friends, family and others. Many of those letters do set out an understanding of the nature of the Applicant’s offending. His mother and his sister did demonstrate that they understood the nature of the child/adolescent pornography offences in particular, in their written and oral evidence. It is relevant that apart from his mother and sisters, the people who have known him in Australia have only known him for less than two years, apart from perhaps meeting him during his visit in 2018.
The principal mitigating factor relied on by the Applicant is that the pornographic material he possessed belonged to his adoptive father who abused him through his childhood until he left home aged 16 and was then assisted by social workers because he was under 18. He said that he was homeless for many years. The Applicant claimed that in about 2000, when he was 13 or 14 years of age, he found the pornographic material on a hard drive in the cellar where his father put him as punishment. Only his father had a key to the cellar. The Applicant viewed the material on a computer in the cellar and stole the hard drive in order to have something to use to protect himself and his adopted brother from their father. However, his evidence was that he never did anything with it, such as take it to the police. He told the Tribunal that he saved the material onto the devices the police confiscated in 2017, as in effect, insurance, to have multiple copies of it.
On 3 February 2021, the Applicant provided an email from his lawyer dated 1 February 2021 in which the lawyer said that having consulted with the Prosecutor, he could confirm that there would be investigations against his adoptive father and at the end of the investigation, he would inform the Applicant if “there is a chance for you that a part of your sentence will be withdrawn, to what extent this will affect your condemnation and whether you have a claim for damages”. The lawyer wrote that he was talking about part of the penalty because the Applicant was in possession of the files “even without any ulterior motive”. There was also an undated email in which the lawyer stated that the investigation into the adoptive father would take several months.
On 4 May 2021, the Applicant provided an original and translation of a document about the search of the apartment on 2 November 2017 (Search Report) when the material was found. The document states that the Applicant told the police that the files found on the “data carriers” do not belong to him, but he only took them. They belong to his adoptive father and he took them to counter threats his adoptive father made against him.
On 31 May 2021, the Applicant provided a letter from a Public Prosecutor’s Office in a German city dated 13 May 2020 that states that there were various pieces of evidence that were not available at the time of the “preliminary investigation” against the accused and an investigation is being conducted against “a suspect who could be the main perpetrator”. It states that:
The evidence clearly shows that the found media do not belong to the convicted Mr Sascha Arne Khodl.
However, since he gained access to them by deliberately taking and keeping the data carriers, he is still guilty of possession, but not obtaining the contents.
We can confirm that Mr Sascha Arne Khodl did not gain access to the files for his own benefit.
On 31 May 2021, the Applicant provided an undated document from the Local Court in the same city which states that the Applicant:
cannot be acquitted of possession of the files because he knowingly possessed the data carriers on which the files were located and did not immediately hand them over to the competent investigating authority after he knew what was on them. However, he is considered not guilty of downloading/obtaining the said files.
There are inconsistencies in these documents. According to the Search Report, the date of the search is 2 November 2017. The Penal Order that was provided with a translation dated 26 May 2020 and the Extended Police Certificate dated 17 July 2019 state that the search and offence took place on 7 November 2017. The document dated 13 May 2020 stated that there was an investigation against a suspected main perpetrator but the lawyer reported in February 2021 after consulting with the Prosecutor that there would be an investigation into his step-father. It is not clear what legal process has occurred to find the Applicant not guilty of downloading/obtained the files. The document recording that change is from a Local Court and not the District Court that issued the Penal Order. It is not usual to have a formal court document that is undated. Other formal court documents that the Applicant provided are dated.
I am not satisfied that the documents provided more recently that distinguish between possession and downloading/obtaining files, are reliable.
On 16 October 2020, the Applicant provided an original and translation of an undated statement in which his adoptive father states that the external hard drive found with the Applicant belonged to him and that the Applicant had not downloaded the content, that he was writing the letter to enable the Applicant to make a new start, and that he would retract the statement if the letter were given to authorities.
The Applicant said that his adoptive father wrote the letter because he wanted to assist him to make a new start.
Given the Applicant’s account of the abuse he suffered at the hands of his adoptive father, his fear of him, including keeping pornography to protect himself from him for 15 years and the little contact between them since he left home, I give little weight to this document. I am not persuaded that his adoptive father would assist him and provide a potentially incriminating document. That doubt is reinforced by the inconsistency between the document dated 13 May 2020 referring to an investigation into a suspect who could be the main perpetrator, whom I infer is the adoptive father, and the adoptive father’s apparent assistance to the Applicant provided to the Tribunal five months later on 16 October 2020, when he was, according to that document, the subject of investigation.

I give most weight to the Applicant’s behaviour as established by documents and translations thereof that have been produced as a result of the legal process concerning the offences and provided to the Department initially: the Extended Police Certificate dated 17 July 2019, and the Penal Order. Both documents refer to the child/adolescent pornography offences occurring on 7 November 2017, and the Penal Order states that the search took place on 7 November 2017. The Penal Order also states that the Applicant confessed.
The letters of support and the evidence of the Applicant’s mother and sister do not indicate that the Applicant explained to the writers or to his mother or sister that the child/adolescent pornography belonged to his adoptive father and he had taken and kept it to protect himself from his adoptive father. Such an explanation would mitigate his culpability.
In particular, the reaction of his mother during her oral evidence was outrage that he should have such material. She said that when she talked to him about it, he said words to the effect that the street taught him that. That is not consistent with the Applicant’s explanation that he has maintained about his possessing the material to protect himself from his adoptive father.
The Applicant’s care for his mother
The Applicant, his mother and his sister emphasised the importance of the Applicant staying in Australia to help care for his mother who suffers significant physical and mental health issues. The Applicant’s care for his mother reflects well on him but needs to be considered in the context that he arrived in Australia on 10 September 2019, lodged his application for citizenship by descent on 27 November 2019, and has been pursuing that outcome ever since, including applying for review of a refusal in this Tribunal, as is his right. Caring for his mother is consistent with seeking a positive citizenship outcome.
The Applicant’s welfare
Various people expressed concern for the Applicant’s welfare if he returned to Germany. The Applicant is also concerned about his own safety if he returns to Germany because of the past abuse he has suffered – sexual, physical and mental. He fears being homeless, without food and with no ability to care for himself – plus potentially being found by past perpetrators. He claims that he is a qualified paramedic and volunteered from 2000 to 2019 with organisations in Germany like Red Cross. There was a letter of support from a person from the Red Cross. The Applicant’s circumstances on return to Germany are of little assistance in deciding whether he is a person of good character.
I accept that the Applicant has suffered mental health issues. That is supported by evidence of his being in a mental health facility in Germany in January and February 2019 and being under the care of a neurologist/psychiatrist for a period of time. He listed various services he is seeking help from in Australia. His sister talked about the difficulties of getting the Applicant therapy because of his migration status and COVID-19.
The purpose of this evidence was unclear. It seemed to be directed to showing that he wanted to be a better person, which suggested that he accepted some responsibility for his offending, but it also seemed to be directed to getting assistance to overcome his past trauma and past bad habits such as drinking and smoking. There was one letter from a counsellor at the Survivors and Mates Support Network. She did not refer to his past offending.
The Applicant has maintained his explanation for possessing the child/adolescent pornography. In that circumstance, he is not demonstrating remorse or efforts to rehabilitate himself.
Conclusion
The Applicant’s offending was confined in time to November 2017 and February 2018. The legal process in relation to the first offences was not finalised until January 2019, subject to the more recent documents provided to the Tribunal to which I give little weigh. The penalty for both offences was a fine but also importantly the prohibition from employing, supervising, instructing, and educating adolescents was imposed which has no apparent time limit. I am not satisfied that the Applicant did not intentionally provide false information in his visa application and arrival card.
The seriousness of the child/adolescent pornography offences, including the consequential prohibition on the Applicant’s dealing with adolescents, and the fact that those offences were only finalised in January 2019, months before he applied for a visa and arrived in Australia but did not disclose those offences to Australian authorities, and not being satisfied that his explanation for possessing the child/adolescent pornography is true, lead me to conclude that at the time of decision I am not satisfied that the Applicant is a person of good character for the purposes of subsection 16(2)(c) of the Act.
The Applicant very much wishes to remain in Australia. His mother and sister in particular and friends wish him to stay. As I the Tribunal tried to make clear to him, it has no role other than to consider the reviewable decision which is about the good character criterion in a citizenship application. He may approach the Department to find out what his options are for applying for visas to allow him to remain in Australia. He may re-apply for citizenship in the future.
DECISION
The reviewable decision made on 2 July 2020, to refuse Mr Khodl’s application for Australian citizenship by descent pursuant to section 17(1) of the Act, is affirmed.

I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

...........................................[sgd].............................
Associate
Dated: 26 July 2021

Date(s) of hearing: 20 July 2021

Applicant: Self-represented

Solicitors for the Respondent: Ms E Letcher-Boldt, Clayton Utz

[2021] AATA 2500

26 July 2021

Key Legal Topics

Areas of Law

Immigration & Refugee Law

Legal Concepts

Citizenship

Good Character

Constitutional Validity

Date(s) of hearing:	20 July 2021
Applicant:	Self-represented
Solicitors for the Respondent:	Ms E Letcher-Boldt, Clayton Utz