Kleeman and Minister for Immigration and Border Protection (Citizenship)
[2017] AATA 875
•15 June 2017
Kleeman and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 875 (15 June 2017)
Division:GENERAL DIVISION
File Number: 2016/3005
Re:Christopher John Kleeman
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Deputy President J W Constance
Senior Member Linda KirkDate:15 June 2017
Place:Sydney
The reviewable decision, being the decision of the Minister for Immigration and Border Protection made on 5 May 2016 to revoke the Australian citizenship of Christopher John Kleeman, is affirmed.
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J W Constance
Deputy President
CATCHWORDS
CITIZENSHIP – revocation of Australian citizenship – applicant convicted of serious offence – whether reinstating the Applicant’s Australian citizenship is in the public interest of the Australian Community – public interest in a person who has been granted Australian citizenship being of good character - discretion to revoke citizenship – whether discretion to be exercised – decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) s 34
CASES
McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70
O’Sullivan v Farrer and Another (1989) 168 CLR 210
“WBU” and Minister for Immigration and Citizenship [2007] AATA 1143REASONS FOR DECISION
Deputy President J W Constance
Senior Member Linda Kirk15 June 2017
INTRODUCTION
Mr Kleeman is a citizen of the United Kingdom who migrated to Australia in 1987. He was granted Australian citizenship by conferral in 2013.
On 5 May 2016 the Minister for Immigration and Border Protection revoked Mr Kleeman’s Australian citizenship on the ground that he was satisfied that it would be contrary to the public interest for Mr Kleeman to remain an Australian citizen. Mr Kleeman has applied to this Tribunal to review the Minister’s decision.
For the reasons which follow the decision of the Minister will be affirmed.
BACKGROUND
Unless stated otherwise, the findings of fact in these reasons is based on the evidence of Mr Kleeman. We are satisfied he was an honest witness who gave his evidence to the best of his recollection.
Mr Kleeman is 57 years old. He was born in the United Kingdom. He migrated to Australia in 1987 and has lived here ever since. His former wife, his children and two of his three siblings are Australian citizens and reside in Australia.
In June 2012 Mr Kleeman applied for Australian citizenship by conferral. On 26 January 2013 Mr Kleeman became an Australian citizen.
Mr Kleeman's criminal convictions and sentences
In October 2013 Mr Kleeman was sentenced in the New South Wales District Court following his having pleaded guilty to the following criminal offences:
·one count of aggravated indecent assault;
·three counts of aggravated sexual intercourse;
·one count of an act of indecency towards a person under 10 years of age.
The total effective period of imprisonment imposed by the Court in respect of these offences was five years and five months. The longest term of imprisonment imposed for an individual offence was three years and nine months.
Mr Kleeman was released on parole on 3 March 2017.
The circumstances of the offences[1]
[1] Sentencing remarks of Ellis J. in the District Court 11 October 2013 exhibit R1 pp.64-71.
The offences took place during 1998 and 1999. The victim of each of the offences was a girl who was aged either seven years or eight years at the time. She was a close friend of Mr Kleeman’s young daughter.
The children’s friendship led to a close bond between Mr Kleeman and his former wife and the parents of the victim. The two families were in frequent contact; they holidayed together and a sense of complete trust developed between them.
The victim regularly spent nights at the Kleemans’ home during which time she was in the care of Mr Kleeman and his former wife. It was during these visits that Mr Kleeman committed each of the offences.
The following paragraph contains details of the conduct engaged in by Mr Kleeman. In the interests of the victim, her family and the family of Mr Kleeman we have made an order that the contents of this paragraph not be published other than to the parties, their legal representatives, Members and Staff of the Tribunal and Judges of the Federal Court of Australia and the Staff of that Court should an appeal be lodged in that Court.
Circumstances leading to Mr Kleeman's conviction
In 2004 the victim disclosed some details of the abuse to her parents, who contacted the Police. Mr Kleeman was interviewed by the Police and by officers of the Department of Family and Community Services. No charges were laid against Mr Kleeman at the time. He was told by a Police Officer that he should attend a psychologist who would provide a report to the Police. As a result Mr Kleeman attended Mr Webster, Psychologist, and continued weekly consultations for about two years.[2]
[2] Exhibit R1 p.33.
After a few sessions with Mr Webster, Mr Kleeman was again interviewed by the Police. No charges were laid at this stage; the Victim’s parents did not wish to press charges. The Police did obtain an apprehended violence order preventing Mr Kleeman contacting the Victim.
In 2012 the Victim (who was by this time an adult) contacted the Police and provided further information relating to the events of 1998 and 1999. As result Mr Kleeman was charged with the offences to which we have referred. He pleaded guilty at the earliest possible opportunity.
LEGISLATION
Section 34 of the Citizenship Act 2007 (Cth) provides, in part:
(2) The Minister may, by writing, revoke a person's Australian citizenship if:
(a)the person is an Australian citizen under Subdivision B of Division 2 (including because of the operation of section 32); and
(b)any of the following apply:
…
(ii) the person has, at any time after making the application to become an Australian citizen, been convicted of a serious offence within the meaning of subsection (5);
…
and
(c)the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.
(3) However, the Minister must not decide under subsection (2) to revoke a person's Australian citizenship if:
…
(b)the Minister is satisfied that the person would, if the Minister were to revoke the person's Australian citizenship, become a person who is not a national or citizen of any country.
…
Serious offence
(5) For the purposes of this section, a person has been convicted of a serious offence if:
(a)the person has been convicted of an offence against an Australian law or a foreign law, for which the person has been sentenced to death or to a serious prison sentence; and
(b)the person committed the offence at any time before the person became an Australian citizen.
[original emphasis]
A “serious prison sentence” is defined in section 3 of the Act to mean a sentence of imprisonment for a period of at least 12 months.
THE ISSUES
It is not in dispute that that after he made his application for citizenship Mr Kleeman was convicted of a “serious offence”. It is also not in dispute that, upon revocation of his citizenship, Mr Kleeman did not become a person who is not a citizen of any country.
The issues to be decided in this application follow.
(1) Is the Tribunal satisfied that it would be “contrary to the public interest” for Mr Kleeman to remain an Australian citizen?
(2) If so, should the Tribunal exercise the discretion to revoke Mr Kleeman's Australian citizenship?
FURTHER EVIDENCE AND FINDINGS OF FACT
Evidence of Mr Kleeman
Mr Kleeman has no convictions other than those already referred to. He admitted his wrongdoing during his first interview with the Police.
When asked during the hearing of this application as to his present thoughts about his offending Mr Kleeman said that, at the time, his marriage was in difficulty, he felt angry with his former wife and with himself and that he was oblivious of the effect of his conduct on the Victim and others at the time. His feelings of self-esteem were low and he suffered from “some type of mental issue at the time.”[3] He is extremely remorseful for the harm he has caused to his Victim, her family and his own family. His marriage ended as a result of his conduct and his relationship with his children became very strained.
[3] Transcript 06/03/2017.
Mr Kleeman was released from custody on parole on 3 March 2017. His parole continues until 2 March 2019. He is the holder of a permanent visa to reside in Australia.
Mr Kleeman denies any sexual attraction to children and is adamant he will not reoffend. He is of the view that he does not require any further treatment as he is not a danger to children. He plans to again seek employment.
Evidence of Ms D Kleeman, Mr Kleeman’s former wife
Ms Kleeman wrote to the Director, Citizenship Operations Section, on 20 August 2015 supporting Mr Kleeman’s submission to retain his Australian citizenship.[4] She gave evidence at the hearing of this application.
[4] Exhibit R1 p.37.
Ms Kleeman was married to Mr Kleeman at the time of the offences. She had no knowledge of his conduct at the time. They are now divorced. Mrs Kleeman believes that they will not reconcile but she is prepared to try to help him rehabilitate into the community; she does not currently receive, nor does she seek, financial assistance from him.
Ms Kleeman believes that, despite the “appalling & heinous nature” of Mr Kleeman’s crimes, they were isolated. She says that she has witnessed first-hand Mr Kleeman’s remorse and his own horror at his crimes and the pain and suffering inflicted on the Victim and others. She believes that it is unlikely that he will reoffend.[5]
[5] Exhibit R1 p.38.
Evidence of Ms N Kleeman, Mr Kleeman’s sister
Ms Kleeman is Mr Kleeman’s sister. She wrote to the Director Citizenship Operations on 19 August 2015[6] and gave evidence at this hearing.
[6] Exhibit R1 p.40.
In her written statement, Ms Kleeman said that, prior to the actions which resulted in his conviction, Mr Kleeman was regarded as a man of exceptional character. He was always reliable and supportive. He lived with Ms Kleeman for some months after separating from his wife and she observed his “overwhelming remorse and guilt”.
Ms Kleeman does not believe that there is any risk of her brother reoffending. She believes that his offences were limited to a particular time and set of circumstances which will not be repeated. Ms Kleeman and her family intend to support and assist him now that he has been released from prison.
Statement of Ms H Kleeman, Mr Kleeman’s daughter
Ms Kleeman is the daughter of Mr Kleeman. She provided a statement lodged in the Tribunal on 27 January 2017.[7]
[7] Exhibit A2.
Ms Kleeman wishes to have the opportunity to again have a relationship with her father. She says that if he returned to the United Kingdom, this would be more difficult than if he remained in Australia. She believes that her father is not a risk to society.
Pre-sentence Report
Prior to Mr Kleeman be sentenced for his offences, a pre-sentence report was prepared by Ms Andrea, a Community Corrections Officer. The report is dated 19 September 2013.[8]
[8] Exhibit R1 pp.5-7.
Ms Andrea reported in part:
Mr Kleeman acknowledged his guilt and the serious nature of his offences. He appeared to recognise the impact of his actions on the victim, her family and on his own family. The offender states he accepts full responsibility of his offending; however, attributed his behaviour to marital problems with his wife at the time. He reported feeling ashamed when he disclosed his offending to his children and wife and states his actions had caused the ending of his marriage and a strained relationship with his two children.
Pre-sentence Risk Assessment Report
Ms Maude, a Senior Psychologist, Community Corrections, prepared a report following a consultation with Mr Kleeman in August 2013.[9]
[9] Exhibit R1 pp.8-13.
Ms Maude reported, in part:
Based on the available information and the actuarial assessment I believe risk range of Low describes Mr Kleeman’s risk of re-offending at this time. Mr Kleeman accepts responsibility for the offence and engaged with treatment when the offences were first reported in 2004.
Report of Mr Webster, Forensic & Counselling Psychologist
Mr Kleeman first consulted Mr Webster in March 2004 on referral from the Police Joint Investigation & Response Team. Mr Webster became Mr Kleeman’s treating psychologist for the following two years. He provided a report dated 9 September 2013 to Mr Kleeman’s Solicitors.[10]
[10] Exhibit R1 pp.14-21.
Under the heading “Prognosis” Mr Webster reported, in part:
Given my experience with Mr Kleeman, I have formed the view that his sexual abuse of the victim occurred within a context of immaturity, high sex drive, and marriage difficulties. He did not, at the time, have the resources to manage these stresses and, as a result, took advantage of an opportunity to engage in sexual activity with a child he had strong affectionate feelings for. The fact that he was not able to maintain a protective stance when he recognised his arousal to a child was clearly a personality deficit at the time. I believe that he addressed this deficit over the two years of treatment he undertook on a voluntary basis.
Although this report should not be considered an independent assessment as I have formed a therapeutic relationship with Mr Kleeman over a substantial period of time, I do have an opinion about the risk he poses to children based on over 100 hours of contact with him. Over the course of treatment, Mr Kleeman develop [sic] his capacity to monitor his emotional state and to put in place strategies to minimise risk under all circumstances. Given his progress, and in reference to the literature on risk of recidivism, I believe that Mr Kleeman poses a low risk of engaging in sexually abusive behaviour towards children and therefore his prognosis is favourable in terms of making decisions and acting in a manner that is appropriate for an adult in the company of children.
Evidence of Ms Carmody, Buddhist Chaplain
Ms Carmody provided a statement dated 27 December 2016[11] and gave evidence.
[11] Exhibit A1.
In her written statement, Ms Carmody said that Mr Kleeman had been attending weekly classes in meditation and Buddhist philosophy and discussion with her since August 2014. She also spoke to him privately while he was in prison.
In the opinion of Ms Carmody, Mr Kleeman is “determined to address the thinking and behaviour that constituted his offence” and feels “deep regret and heartfelt remorse.”[12] She believes that he is resolute that he will never re-offend.
[12] Exhibit A1.
DISCUSSION
Issue 1: Would it be ‘contrary to the public interest” for Mr Kleeman to remain an Australian citizen?
In O’Sullivan v Farrer and Another[13] the High Court considered the meaning of the words “in the public interest” in legislation other than that before us in this application.
[13] (1989) 168 CLR 210 at 216.
Mason CJ, Brennan, Dawson and Gaudron JJ said, in part:
…… the Act provides no positive indication of the considerations by reference to which a decision is to be made as to whether the grant of an application would or would not be in the public interest. Indeed, the expression “in the public interest”, when used in a statute, classically imports a discretionary value judgement to be made by reference to undefined factual matters, confined only “in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view”.
In McKinnon v Secretary, Department of Treasury[14] Tamberlin J cited the above passage from the High Court’s judgement. His Honour referred to “public interest” as follows:
The public interest is not one homogenous undivided concept. It will often be multi-faceted and the decision-maker will have to consider and evaluate the relative weight of these facets before reaching a final conclusion as to where ‘the public interest’ resides. The ultimate evaluation of the public interest will involve a determination of what are the relevant facets of the public interest that are competing and the comparative importance that ought to be given to them so that ‘the public interest’ can be ascertained and served. In some circumstances, one of more considerations will be of such overriding significance that they will prevail over all others. In other circumstances, the competing considerations will be more finely balanced so that the outcome is not so clearly predictable. For example, in some context, interest such as public health, national safety, anti-terrorism, defence or international obligations may be of overriding significance when compared with other considerations.
[14] (2005) 145 FCR 70 at 75-76.
Taking into account the evidence of Ms Carmody, Mr Webster and Mr Kleeman, we are satisfied that Mr Kleeman is genuinely remorseful for his offences and that his risk of re-offending is low. On this basis we turn to consider the relevant facets of the public interest.
The public interest disclosed by the context of the Australian Citizenship Act 2007
The Preamble to the Australian Citizenship Act reads;
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.
The Preamble makes it clear that the privilege of Australian citizenship includes the obligations to respect the rights and liberties of Australians and to uphold and obey the laws of Australia. Parliament’s enacting legislation to preserve these rights and to uphold Australian laws shows that it is in the public interest that these obligations be observed and the country’s laws be upheld and obeyed.
In committing the offences which he did, Mr Kleeman breached the trust placed in him by the Victim and her family in a horrendous way. He showed no respect whatsoever for them and no respect for the laws of Australia. Most Australians would regard his conduct as abhorrent and contrary to the values of the Australian community. As Ellis J observed in his sentencing remarks:
Tampering with children of tender years is a matter of grave community concern … The community rightly regards the sexual molestation of young children, especially those as young as seven years, as abhorrent.[15]
[15] Exhibit R1 p.66.
We are satisfied that there is a public interest in the preservation and promotion of the value of Australian citizenship and the privileges it endows upon Australian citizens.
The public interest in a person who has been granted Australian citizenship being of good character
We respectfully agree with and adopt what was said by Deputy President Hotop of this Tribunal in “WBU” and Minister for Immigration and Citizenship[16]:
It is axiomatic that it is in the public interest that a person, who is granted Australian citizenship under s 13(1) of the [Australian Citizenship] Act, be a person of good character at the time of the grant of Australian citizenship. Likewise, in the Tribunal’s opinion, it would be contrary to the public interest, for the purposes of s 21(1)(b) of the Act for a person, who has been granted Australian citizenship under s 13(1) of the Act, to continue to be an Australian citizen in circumstances where that person:
·had, unbeknown to the respondent and to the Department, engaged in criminal conduct incompatible with good character prior to the grant of Australian citizenship; and
·has not subsequently become a person of good character.
[16] [2007] AATA 1143 at para.37.
We are not satisfied that Mr Kleeman has shown himself to be of good character. It may be that he will be able to do this in time. Although 18 years have elapsed since he committed the offences and he has not committed any further offences in that time, he has only just been released from prison on parole. It remains to be seen whether he can comply with all the terms upon which he has been released and re-establish himself in the community.
The public interest in the protection of members of the Australian community
It is also a matter of public interest that members of the Australian community, and in particular young vulnerable children, be protected from sexual predators. Again, as observed by Ellis J:
Children of tender years are entitled to grow up in an environment which is free from defilement and sexual abuse which allows them to develop physically and psychologically in a normal and appropriate manner.[17]
[17] Exhibit R1 p.66.
While we are satisfied that the risk of Mr Kleeman re-offending is low, the evidence establishes that a risk of re-offending, and therefore of harm to other children, remains.
Although Mr Kleeman immediately admitted his guilt when confronted with his conduct, he continues to refer to the circumstances in which he offended. The possibility remains that the circumstances in which the offences were committed may arise in the future. Even after Mr Webster provided extensive treatment, he remained of the opinion that there remained a risk, albeit low, that Mr Kleeman would again engage in sexually abusive conduct towards children. Mr Kleeman is not receiving any form of treatment at present
It is in the public interest that the risk of such conduct be reduced to an absolute minimum. Whether Mr Kleeman is able to continue to reside in Australia is not a matter for determination in this application, however the revocation of his citizenship is a prerequisite to the cancellation of his permanent visa and subsequent removal from Australia, should this be determined to be appropriate.
Consideration
All of the above facets point to it being contrary to the public interest for Mr Kleeman to remain an Australian citizen. We are satisfied that this is so.
Issue 2: Should the discretion to revoke Mr Kleeman's Australian citizenship be exercised?
Mr Kleeman argued that should he be required to leave Australia his chances of rehabilitation and his relationship with his family members would suffer. His daughter gave evidence that it would be more difficult for her to re-establish a relationship with her father if he is required to return to the United Kingdom.
The decision to revoke Mr Kleeman's citizenship does not mean that he cannot remain in Australia. That is a matter for further consideration by the Minister or his delegate.
While the concerns of family members are a proper consideration in deciding how the discretion should be exercised, in this case they are based on the premise that Mr Kleeman will cease to reside in Australia should his citizenship be revoked. As we have said, this will not necessarily follow from any decision we make in this application.
Taking into account the seriousness of the crimes committed by Mr Kleeman and the strength of the considerations in favour of the conclusion that it would be against the public interest for him to remain an Australian citizen, we have decided that the discretion should be exercised in favour of revoking Mr Kleeman's Australian citizenship.
CONCLUSION
The reviewable decision, being the decision of the Minister for Immigration and Border Protection made on 5 May 2016 to revoke the Australian citizenship of Christopher John Kleeman, will be affirmed.
I certify that the preceding 62 (sixty -two) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance and Senior Member Linda Kirk.
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Associate
Dated: 15 June 2017
Date of hearing: 6 March 2017 Solicitors for the Applicant: Mr M Jones, Parish Patience Legal and Migration Services Solicitors for the Respondent: Mr K Eskerie, Sparke Helmore
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