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

[2022] AATA 360

LCVJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 360 (28 January 2022)

Division:General Division

File Number:           2020/2820

Re:LCVJ

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:
Mr Rob Reitano, Member

Date:28 January 2022

Place:Sydney

I affirm the delegate’s decision refusing the Applicant’s application for citizenship.

..........................SGD..............................................

Mr Rob Reitano, Member

CATCHWORDS

CITIZENSHIP – good character test – Applicant convicted and sentenced of indecent assault and unlawful sexual connection of a minor – Applicant denies offences committed – Applicant unremorseful in respect of offences committed – Tribunal could not conclude criminal convictions and sentence imposed were unsound – Tribunal cannot be satisfied the Applicant is of good character – decision affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth)

CASES

HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202

Irving v Minister of Immigration, Local Government and Ethnic Affairs [1996] FCA 1660

SECONDARY MATERIALS

Australian Citizenship Procedural Instructions, CPI 15: Assessing Good Character Under the Citizenship Act

AUSTRALIAN CITIZENSHIP (POLICY STATEMENT)REASONS FOR DECISION

Mr Rob Reitano, Member

28 January 2022

1. This matter is about whether an Applicant for citizenship who has been convicted of four  serious criminal offences involving sexual abuse and indecent assault against a six year old child  between 1 December 1990 and 31 March 1991 which he continues to deny, has satisfied the Tribunal that he is of good character, so that his application for citizenship by conferral should be returned to a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (delegate) for further consideration. 

2. The delegate decided to refuse the application because the delegate was not satisfied that the Applicant was of good character.

3. I have decided to affirm the delegate’s decision to refuse the application because I am not satisfied that the Applicant is of good character. These are my reasons for that decision.

   CONVICTIONS, SENTENCE AND THE UNDERLYING FACTS

4. On 12 December 2003, the High Court of New Zealand (High Court) the Applicant was convicted of two counts of indecently assaulting a female under 12 years of age and two counts of unlawful sexual connection with a female under 12 years of age. A jury had earlier found the Applicant guilty of those four offences and not guilty on 11 other charges, three which involved alleged sexual offences concerning a different complainant and eight which involved alleged sexual offences concerning the same complainant.

5. The trial Judge said in his Sentencing Notes, a copy of which was provided to the Tribunal:

   [1] [LCVJ], you appear for sentence before the Court today, at the age of 41, for the first time. You have been found guilty by a jury on two charges of sexual violation by unlawful sexual connection. Both were representative charges. You have also been found guilty by the jury on two charges of indecent assault on a girl under the age of 12 years. Both of those charges are also representative charges.

   [2] The offending occurred between 1 December 1990 and 31 March 1991.

   [3] At the time of the offending the maximum penalty for the charge of sexual violation was 14 years imprisonment.   That penalty has subsequently been increased to 20 years imprisonment.   But as a matter of law, I am required to sentence you on the basis of the maximum penalty in force at the time of the offending and the sentences imposed at the time by the Courts.   The maximum penalty for the offence of indecent assault on a girl under the age of 12 years is 10 years imprisonment.   I trust that my reciting the maximum penalties will bring home to you the seriousness of the charges on which you have been found guilty by the jury.

   [4] You denied the charges at trial. You continue to deny the charges. It is fair, however, to record that you were found not guilty by the jury on 11 of the 15 charges they considered. Equally, however, it is clear from the length of the jury’s deliberation and the charges on which you were convicted that the jury did not believe the denials you made on oath. I have no doubt that the jury acquitted you on the other charges because they were not satisfied that the Crown’s evidence proved the case to the requisite high standard rather than because they believed your explanation of events. I am bound, however, to ignore those other charges on sentencing and I will ignore those charges.

   [5] Your offending occurred at the home of the complainant, albeit, at two separate locations. You had befriended the mother of the complainant through the church to which you both belonged. The evidence at trial established that you visited the complainants home often and had ample opportunity to offend. At the relevant time you were aged approximately 28 years and the complainant approximately 6 years of age.

   [6] The sexual violation took the form of digital penetration of the complainant’s vagina. The indecent assaults involved kissing with an open mouth and inappropriate touching.

   [7] All of the counts on which the jury found you guilty were representative charges and the offending was said to have occurred on a number of occasions. I have formed my own view of the evidence in that regard. I am satisfied on the evidence given at trial that the charges on which you were found guilty did not involve isolated events. I am satisfied beyond reasonable doubt that the particular offending occurred on several occasions, but I will not put it any higher than that. Certainly, I cannot accept beyond reasonable doubt that it occurred with the frequency that was suggested in some parts of the evidence

6. After referring to the submissions of counsel and to some of the legal principles applicable the trial Judge continued:

   [20] The aggravating factors in the particular case are the nature and extent of the offending, the period of time over which it occurred, the abuse of a position of trust and the vulnerability of the victim.

7. The Applicant was sentenced by the trial Judge to four years imprisonment.

8. On 26 May 2004, the Court of Appeal of New Zealand (Court of Appeal) heard an appeal against the conviction and the sentence brought by the Applicant. A copy of the Judgment was provided to the Tribunal.

9. The appeal grounds concerning conviction were that the trial Judge had failed to direct the jury that they could consider evidence bearing upon the complainant’s credability and reliability, that the trial Judge had unduly and unfairly restricted the evidence given by an expert psychiatrist and that the verdicts were inconsistent. For reasons that  will become clear, it is necessary to observe that there was no appeal against the jury’s verdict or anything that the trial Judge did or said in directing the jury about the application of the criminal standard of proof. The appeal against sentence was on the ground that the sentence was manifestly excessive.

10. The Court of Appeal rejected the conviction appeal but upheld the sentence appeal and sentenced the Applicant to three years imprisonment instead of four years imprisonment.

11. The Applicant denied at his trial and when he was sentenced, that he had committed the offences for which he was convicted and sentenced to imprisonment. He denied he ‘committed these sexual crimes against a child under 12 which form the basis of his convictions’ in his evidence before the Tribunal. In the Tribunal he maintained that he was innocent and said that he had been wrongly convicted and that he had been made a ‘scapegoat’.

    THE APPLICANT’S EVIDENCE

12. It was very clear that some of the Applicant’s evidence before the Tribunal was at odds with aspects of the factual basis that lay beneath his conviction and sentence. I will deal first with his evidence about why he was wrongly convicted and then with his evidence about various aspects of matters connected to his offending.

13. The Applicant was asked in his evidence to explain why he was convicted for offences for which he was innocent. He put forward four broad categories of reasons for denying that he had committed the offences.

14. First, he said that originally the charges related to events between 1990 and 1994 which included time after 1991 when he was alleged to have committed offences in New Zealand, but he could not have committed them because much of that time after 1991 he was living in Australia. He said that once the police found out he was in Australia they ‘very quickly backdated those charges’. Although he did not say so, it was apparent from what he was saying that the charges were ‘backdated’ to a time in 1991 before he left New Zealand.

15. Second, he says that ‘when the trial began it was quite clear to me that the judge was looking for a conviction. He did everything within his power to obtain a conviction’. To that end one thing he did was on ‘several occasions – several occasions – dismissing the jury from the room while he deliberated with my witness on what she can and cannot say’. The witness was a psychologist or psychiatrist who the Applicant described as his ‘primary witness’. He was ‘huge(ly) disadvantaged’ because most of what she was to say was not permitted to be said.

16. Third, he said that the trial Judge gave to the jury a questionnaire ‘to guide them because they couldn’t come up with a unanimous decision’. He said that the trial Judge had ordered the jury to come up with a verdict.  He said that the Judge had directed the jury to ‘go back and go back again’. He said he and his lawyers ‘were not privy to what he gave the jury members to come up with their decision’.

17. Fourth, he says that the prosecution did not discharge the burden of proof of proving the charges beyond reasonable doubt.

18. The Applicant also said in the course of his evidence that two other people were in fact the people who committed the offences.  He said the police were aware that one of those people had committed the offences but had not charged that person. This kind of claim about what other people knew and saw was something of a theme in the Applicant’s evidence.  As I have said he characterised his circumstances as him being a ‘scapegoat’.

19. The Applicant’s other evidence during the hearing dealt with some particular aspects of the circumstances of his offending or, as the Applicant would have it, his non-offending. It is not necessary to repeat it all here, but some of it obtains a little importance so I will say some things about it. I found the Applicant’s evidence unconvincing for a range of reasons including his troubled and argumentative demeanour, his minimising of facts that were unfavourable to him, his attribution of knowledge of things to others and his arguing his case from the witness box. I will refer to some of the more significant aspects of those things in what follows. Some particular matters are worth repeating.

20. During his evidence the Applicant was asked how he knew the complainant. He said that he ‘knew her just through the church that I went to at the time’. When asked about his interactions with the victim and the extent of his relationship with her he said that ‘Well, we didn’t really have a relationship, just – I think it’s just a case of everybody knew everybody else. A couple of times I mowed their lawn and that was pretty much it’. The words ‘that was pretty much it’ are important.  He did not say when he had mowed ‘their lawn’, that he had also been swimming in their pool, at least, according to his later evidence, on two occasions whilst at ‘their’ house and less relevantly, but still significantly, that he had showered at the house after mowing ‘their lawn’. Those things came out later in his evidence which left a sense of unease that the Applicant was putting his answers to questions in the best possible light rather than fully answering the questions, as distinct from saying things he wanted to, so as to disclose all of the facts relevant to things that might be considered adverse to him. 

21. Further, it is significant that his evidence was different from what the trial Judge had recorded in his sentencing notes which I have extracted earlier, namely, ‘[t]he evidence at trial established that you visited the complainants home often and had ample opportunity to offend’. It was also at odds with the existence of a ‘position of trust’ which the trial Judge referred to suggesting that there was much more to things than mowing ‘their lawn’’ a ‘couple of times’.

22. Another example lay in the Applicant’s evidence about his dealings with the complainant. The Applicant was asked whether he had ever had any ‘one on one conversations’ with the victim and he said, ‘No. Not really, no. Mostly her mother, her mother was, you know, in a group of friends, same group of friends I was in, so we sort of met up from time to time, but not very often.’ The words ‘not really’ are important. He had not been asked about conversations with the victim’s mother at all, but volunteered he had spoken to her, apparently rather than the victim. He had not been asked about the number of times he spoke with the victim or the victim’s mother either but added ‘but not very often’ which sounded like he was trying to minimise the prospects of interaction with the victim or her mother. When asked about his use of the words ‘not really’ he indicated that, ‘We’ve probably spoken a couple of times, that’s it’. The words ‘not really’ and ‘probably’ appear to be directed to minimising any suggestion that he had much involvement at all with the complainant. I have already referred to this being at odds with the trial Judge’s findings.

23. When asked about what he understood about the prosecution case he said, amongst other things, that that the prosecution were saying that he touched the victim’s vagina. He was asked where it was alleged that happened. He said, ‘I think one of them they were saying was in the shower, one was in the pool and one was on the trampoline or something’ at the house where the victim lived with her mother and sisters. He also said one of the allegations involved doing the same sort of thing in ‘the moving truck when they did move house’. The words ‘I think’ in the context of serious criminal offending that had been alleged against him, even if denied, suggest that the Applicant was not sure, but it is unlikely given the gravity of the matter for him that he would have forgotten those places where he was alleged to have committed the very serious acts in question. The use of the words ‘I think’ appear to have left open the suggestion that there should be doubt about the fact.

24. In the course of his evidence, the Applicant without specifically being asked about the matter, said that the pool ’was just outside the kitchen window’ and then having asked if he could add something further to this statement he said, ‘her mother was actually right there, so she saw that nothing actually happened’. That was not a part of the prosecution case which the Applicant was in fact being asked about. The mother did not give evidence in the prosecution. The Applicant would have no idea what the mother did or did not see.  Despite that, he was willing to present on her behalf that she did not see anything. He later added, again without responding to a particular question, ‘And I should state that – I was going to state that her sisters were there, but I won’t go there’. The reason the Applicant said he would not ‘go there’ was because he had previously been told about his need to respond to questions. After being asked ‘to go there’, the Applicant continued, ‘her sisters were all there and so, what’s been alleged is a complete falsehood because I was never alone with her’. The presence of the sisters as being an answer to what was alleged was not dissimilar to what the mother was alleged to have been witness too, namely, in the Applicant’s evidence portraying the sisters as being present was ‘proof’ that nothing had happened. His eagerness to rely on these kinds of things very much tainted his credit and his evidence.

25. In relation to the incident involving the moving truck he added without being asked ‘again, impossible because they had a moving gang there actually, in fact, moving the goods’. Again, without being asked he volunteered about the trampoline ‘the rule was only one person on the trampoline at a time. So, any sort of conduct like that would involve two people on the trampoline, that was not allowed’. The very notion that the rule about the trampoline meant there could not ever have been two people on the trampoline was incredible. When asked whether there could have been two people on the trampoline despite the rule his answer again reverted to what emerged very much as a theme in his evidence that ‘there would have been witnesses’. His eagerness to volunteer in his evidence things about ‘other people’ being present who ‘would have’ seen what had happened, which he believed was an answer to his convictions, compared starkly to his lack of enthusiasm for volunteering that he had swam at the victim’s residence on two occasions.

26. Finally, I should refer to one other matter that causes me to approach the Applicant’s evidence with caution.  In the course of his evidence the Applicant thought it significant to include in his answers that the victim was, by the time she was giving evidence many years later, a prostitute. He said ‘she was dressed the part at the first trial’ and ‘when they change their appearance to look like a schoolgirl at second trial so that people would look upon her passionately, as opposed to her first trial, you have to ask questions, well why was she dressed differently? And I’ll leave that for you to surmise’. He said she was a prostitute because someone had told him and so, it seems he thought that was a sufficient basis to publicly assert that proposition as though it were a fact.  It was also not apparent why the Applicant thought it important to assert that the complainant was a prostitute at all other than for some crude purpose of using it to somehow cast doubt over the believability of her account. I reject the suggestion to the extent it was made.

27. For the reasons I have expressed I will approach the Applicant’s evidence with some caution and, in particular, so far as important matters are concerned, I do not accept it in the absence of corroboration.

28. The Applicant is not remorseful or contrite in respect of the offences simply because he says he did not commit them. He says that he is sorry and remorseful, for the plight of the victim of his offending because he considers she was abused as a child and has suffered because of it, but none of that was of his doing.

    THE TESTIMONIALS

29. The Applicant brought some evidence by way of testimonials which expressed the belief or opinion of the authors that the Applicant was of good character, was honest, hardworking and responsible. Some of the people knew the Applicant for a very considerable period of time, some extending back to the time before his offending and some more recently, but all generally knew him over very many years. All described him in various ways as being of good character. Some of the testimonials were a little unsurprising in that regard being authored by his wife, mother, sister and younger brother, but nonetheless there is no doubt that their opinions were honestly held and are relevant to the issue.

30. All of the authors of the testimonials expressed the view that they believed that the Applicant was innocent in respect of the matters for which he was convicted. The witnesses generally gave various explanations for their opinion in that respect. For example, one witness said that he had not ever had a moment where he thought that there was in hindsight, or otherwise, anything odd about the Applicant’s behaviour. One testimonial expressed the witness’s own view about the evidence but did not elaborate much on that evidence and how the view was formed. Other testimonials were based on opinions as to the general circumstances that were known at the time.  Again, I will proceed on the basis that those opinions were genuinely held and are relevant.

    THE STATUTORY PROVISIONS

1. Section 24(1A) of the Australian Citizenship Act 2007 (Cth) (the Act) provides that the Minister must not approve a person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsections 21(2), (3), (4), (5), (6), (7) and (8).

2. Section 21(2) of the Act sets out the general eligibility requirements for a person to become an Australian citizen. Subsection 21(2)(h) contains one of the eligibility requirements that the Minister must be satisfied about which is that the person ‘is of good character at the time of the Minister’s decision on the application’.

   THE ISSUES

3. The issues are very straightforward: first what consideration the Tribunal should give to the Applicant’s convictions and sentence and, in particular the facts underlying both; and second, whether the Tribunal can be satisfied that the Applicant is of good character. I will deal with each of them separately.

   THE RELEVANCE OF THE CRIMINAL OFFENDING

4. The first matter to be resolved concerns the Applicant’s criminal offending because as will be seen, much turns upon the acceptance or otherwise of the factual matters upon which the criminal conviction and sentence was based. The particular issue is whether I should treat the evidence of the conviction and sentence as informing the factual matters upon which they were based, or whether I can or should, depart from them having regard to the evidence before me, in particular, the Applicant’s denial of his offending and its associated circumstances.

5. In HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 (HZCP) the Full Court of the Federal Court of Australia considered the issue albeit in a different contextual setting, namely under relevant sections of the Migration Act 1958 (Cth). Nonetheless the reasoning that led the Court to its conclusion is the same here.

6. In HZCP, McKerracher J approved the approach adopted by Branson J in Minister for Immigration and Border Protection v Ali [2000] FCA 1385 at [43] where her Honour after reviewing the authorities expressed the position so far as the Migration Act 1958 (Cth) was concerned:

   . . . as requiring a decision-maker under s 200 of [the Migration Act] to treat a conviction and sentence (not being the conviction and sentence upon which the power to deport is based) as strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted (see Spackman at 635). This heavy onus will, as a matter of logic, be more easily satisfied where the criminal conviction and sentence followed a plea of guilty than where the conviction and sentence follow a contested factual hearing.

7. Colvin J at [190] adopted an approach that was materially no different observing that it was not that there was a ‘different ultimate burden’ or some ‘special character’ that underscored the principle but rather ‘that the compelling nature of such findings gives them a quality that will be difficult to contradict’. Colvin J said at [191]:

   However, unless there is a compelling reason to doubt the integrity of the process by which a person was convicted and sentenced or a compelling explanation as to why a particular factual foundation should not be accepted, administrative decision-makers will not meet their obligation to make findings based upon logically probative material if they make contrary findings. A convicted defendant who advances a contrary version of events without a compelling explanation as to why the criminal proceedings should not be taken as proof of the facts underlying a conviction or sentence will not provide a logically probative basis upon which to doubt the veracity of those underlying findings. The type of explanation that may meet this requirement may be different where there is a plea of guilty said to have been induced by other considerations than when there was a conviction after trial by judge and jury. In an instance where there is a challenge to facts that underpin sentencing, it may depend upon the nature of the process undertaken at the time of sentencing, particularly whether facts were formally stipulated for that purpose. In this case such questions do not arise because, for the reasons given by McKerracher J, the facts that provided the foundation for the criminal conviction and sentence of the appellant were part of the foundation for the power to revoke.

   Derrington J referred to the need for ‘[d]ue respect and evidentiary weight’ of a high standard of proof and cautioned against ignoring the ‘salutary warnings that administrative tribunals ought not too readily gainsay the outcome of the criminal justice process’ found in the judgments of McKerracher and Colvin JJ.

8. I do not consider that there is any sound basis, let alone ‘compelling reason’, as to why I should doubt the integrity of the process by which the Applicant was convicted or as to why I should not accept the factual foundation upon which the Applicant’s convictions and sentence was based. There are several reasons for this.

9. First, New Zealand has a legal system which is much like that of Australia’s, being based upon the English common law. The New Zealand legal system is of high standing in the legal community and there is nothing that would cause anyone to doubt its independence and impartiality. It has, like Australia, a judiciary based on a hierarchy of courts with checks and balances reflected by an appellate function. It applies legal principles much like those in Australia and in particular the doctrines of precedent and stare decisis. New Zealand’s criminal law system adopts many of the same kinds of protections that exist in Australia: the existence of a separate arm of enforcement by police, the right of an accused to know the case against them by charge, the right to be legally represented, the need for the application of the standard of proof of ‘beyond reasonable doubt’, and the right to be tried by jury. Those kinds of protections were evident from the Sentencing Notes and the Judgment.

10. Second, much of the Applicant’s evidence about the matters that were claimed to impugn his conviction and sentence were self-serving: his claim that the trial Judge hearing the case was biased against him and was out to get a conviction from the outset, that the evidence he wished to have given in court by his expert was wrongly excluded and that the criminal onus was not satisfied. The first of these matters was not supported by anything that would be probative of the claim and the latter two were eschewed by the Court of Appeal’s judgment. There was nothing other than the Applicant’s say so about the questionnaire not being shown to his legal representatives or to him. I would not accept that evidence without it being corroborated. Again, the Sentencing Notes and the Judgment reflect an application of legal principle and reason that simply do not support the Applicant’s contention.

11. Third, the Applicant’s claim that the police had investigated matters over a longer period, from 1991 to 1994, rather than the period over which the charges were concerned, demonstrates something of the paucity of the matters available to the Applicant to impugn the facts underlying his conviction. The charges were historical offences which at the time of the trial had been committed years before. There is no sound basis for why the investigation might have looked at things over a period of many years. Without knowing the detail and, again without corroboration, I am unable to proceed to draw any conclusions about these matters of any meaningful kind.

12. Fourth, I do not consider the evidence that there were other people responsible for the Applicant’s offending as persuasive especially because there is no direct evidence that impugns the Applicant’s found and proven offending, but also because much of it was self-serving, apparently partial to the Applicant, based on hearsay and unfounded speculation and opinion and none of it at all was direct evidence.

13. Fifth, it is simply wrong to suggest that the Applicant was either convicted or sentenced ‘on the balance of probabilities test’. The jury’s verdict evidenced that the standard of proof applied was the criminal one. The trial Judge proceeded on acceptance of that verdict and took great care to discard matters that were extraneous to it such as the other charges upon which the Applicant was acquitted. The trial Judge acted on the basis that the offending occurred on several occasions which he said he was satisfied about beyond reasonable doubt. 

14. The Court of Appeal was not presented with any direct ground of appeal that suggested that the criminal onus had not been satisfied although it concluded that the jury had been properly directed and that its verdicts were not inconsistent. There is nothing at all that would support the conclusion that somehow the Court of Appeal substituted a different onus than that which was applied by the jury and the trial Judge. The reasoning of the Court of Appeal in its Judgment is both orthodox and persuasive. There is no reason to doubt the correctness of the conclusions it arrived at.

15. Finally, I should add that there were significant things in the Applicant’s evidence both concerning his demeanour which at times demonstrated a troubled impatience with the process and in its content that do not permit me to place much weight on his evidence quite apart from its self-serving nature. I have referred to some of these things earlier. It is not necessary to repeat them again

16. There is nothing that is persuasive or compelling about the evidence and submissions before me that would permit a conclusion that the criminal convictions and sentence imposed were in any way unsound or such that I should not proceed to determine this matter informed by the facts that underlie the Applicant’s criminal conviction and sentence.

    WHAT IS GOOD CHARACTER?

17. The statutory requirement is that I be satisfied that the Applicant is of good character. That test requires an affirmative or positive evaluation. It is important that if I am not satisfied that the Applicant is of good character that does not mean I consider that he is of bad character. That distinction is not without importance in this case because ostensibly the shadow cast by the objective fact of the Applicant’s offending, albeit many years ago, is not one that I can ignore, and is one that casts sufficient doubt such that I am able to achieve a sense of positive satisfaction about the Applicant’s good character.

18. It is also necessary to observe, before dealing with what good character means to bear in mind that the word ‘satisfaction’ requires an evaluative judgment about a range of considerations. The formation of a satisfaction should not be confused with the establishment of an identified objective fact: the issue is not whether the Applicant is in fact of good character, but rather whether the Tribunal is satisfied that the Applicant is of good character.

19. The question as to what constitutes good character involves an evaluative judgment about a person’s ‘enduring moral qualities’ or ‘essential moral qualities’. This is made clear by relevant policy as found in the Australian Citizenship (Policy Statement) and, more particularly, by the Australian Citizenship Procedural Instructions, CPI 15: Assessing Good Character Under the Citizenship Act (Procedural Instruction).

20. The Procedural Instruction adopts the ordinary meaning of the words ‘good character’ by reference to judgments of the Federal Court of Australia and this Tribunal, most often which have referred to and applied the ‘definition adopted’ in Irving v Minister of Immigration, Local Government and Ethnic Affairs [1996] FCA 1660 where Lee J said:

    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 to 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 whilst 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.

21. The Procedural Instruction provides guidance to the Tribunal which the Tribunal usually will consider and apply. There is no sound reason not to apply the Procedural Instruction in this matter and none was suggested.

22. The Procedural Instruction properly rejects the notion that a simple assessment a person has been convicted of an offence is sufficient to conclude that a person is not of good character. A ‘full assessment’ of the facts of the particular case is what is required. That assessment, having regard to the phrase ‘enduring moral qualities’, requires regard to be had to characteristics that have endured over a long time, the capacity to distinguish right from wrong, behaving in an ethical manner and conforming to the rules and values of Australian society.

23. So far as criminal offending is concerned, the Procedural Instruction refers to decision makers acting ‘on the basis that the verdicts of Australian courts, and the essential factual findings supporting the verdict, are correct’. Significantly, the Procedural Instruction only says so far as overseas courts that it may be ‘necessary to take account of the independence of the judiciary in the particular country’. The Procedural Instructions identifies the need to act on the basis that the conviction is correct ‘regardless of whether the applicant maintains his or her innocence’. This is a little at odds with HZCP but in the circumstances is uncontroversial because having considered the principles in that case and the circumstances of this matter I have proceeded on that basis.

24. The views of appellate courts should be considered so far as they impact the original conviction. All of the circumstances, the nature and seriousness of the offence, the time that has elapsed since it was committed, the harm that may have been caused, the personal characteristics of the applicant at the time of offending, whether the particular applicant has accepted responsibility and expressed remorse for the wrongdoing and the period of good behaviour that has passed since the offending occurred, should be considered. It is necessary of course to consider all the circumstances of any wrongdoing and any mitigating factors in order to determine how, or whether, the conduct reflects on character.

25. It is important, especially for present purposes, that the Procedural Instruction plainly acknowledges that ‘in some very serious cases, it may never be possible to be satisfied that the person is of good character’ and that in the case of some serious offences of which sexual assault is given as an example, ‘[d]epending 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 time’. The Procedural Instruction specifically identifies ‘expressions of genuine remorse for past wrong-doing and the time that has elapsed since the wrong-doing’, as something for consideration.

26. One matter the Procedural Instruction squarely poses as a consideration is by reference to a simple question: ‘would a person of good character have behaved the way the applicant did?’

    AM I SATISFIED THE APPLICANT IS OF GOOD CHARACTER?

27. I have set out the matters that are relevant to a consideration of whether I can be satisfied that the Applicant is of good character. Those matters include the Applicant’s criminal offending and his lack of remorse and acceptance of responsibility for those offences, which naturally follows from his rejection of the convictions and his denials.

28. The Applicant’s offences are objectively very serious involving sexual offences against a young child which occurred when the Applicant was in a position of trust. They were not on any view one off offences and at their minimum involved four separate instances of offending. They occurred over a period of months. 

29. The offences are ones that the community would generally consider very serious, both when they were committed and today. The sentence imposed, three years imprisonment, reflects the fact that the offences are serious. The sentencing remarks so far as they refer to circumstances of aggravation involving the Applicant’s position of trust so far as the young child was concerned, make the offending even more serious, if that is at all possible. The offending is in the class of offence even though committed about 30 years ago, is so serious that it is doubtful that a person having committed such offences could ever satisfy a decision maker that they are of good character.

30. Further, the Applicant’s failure to accept his responsibility for his offending as evidenced by his continued denial of his offending is a significant obstacle to any satisfaction that he is now of good character. The failure is especially so in light of the Applicant’s attempts to minimise his offending and deflect attention away from aspects of it. Of course, it follows from the Applicant’s denials, that he is not remorseful in any way for his offending. Although it is true that the offences happened many years ago, I cannot be satisfied that time has changed much for the Applicant given his ongoing denials of his guilt

31. The testimonials and evidence brought by the Applicant do not change the fact that I cannot be satisfied that the Applicant is of good character because of the criminal offending. Many of the references are from long standing family and friends who ordinarily would be expected to support or be partial to the Applicant. Those references do not stand in the same stead as the Applicant’s own conduct and actions both so far as his offending is concerned and his failures to express remorse and accept responsibility for it, although his conduct through work, marriage and having a child are all to be balanced against that consideration as is the fact that he has not committed any offences other than the ones referred to. The seriousness of his past conduct and rejection of responsibility for it are not outweighed by any of those considerations.

32. In the end, it is the very long dark black shadow cast by the Applicant’s offending, as found by the High Court on 12 December 2004, that means I cannot be satisfied that the Applicant is of good character so that I must affirm the delegate’s decision.

    DECISION

33. I affirm the delegate’s decision refusing the Applicant’s application for citizenship.

I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Mr Rob Reitano, Member

............................SGD............................................

Associate

Dated: 28 January 2022

Dates of hearing:	28 May and 6 August 2021
Solicitors for the Applicant:	Ms K Ziayee, Supreme Justice Lawyers
Solicitors for the Respondent:	Mr A Booth, Clayton Utz