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

LSNZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 3785 (25 September 2020)
Division:GENERAL DIVISION
File Number: 2020/0544
Re:LSNZ
APPLICANT

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

DECISION
Tribunal:Member D K Grigg
Date:25 September 2020
Place:Brisbane

The Tribunal affirms the decision under review.
................................[SGD]........................................
Member D K Grigg
Catchwords
CITIZENSHIP – refusal of approval to grant citizenship – whether applicant of good character – previous convictions concerning procuring a child for a sexual purpose – conviction spent – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Child Protection (Offender Reporting) Act 2004 (Qld)
Crimes Act 1914 (Cth)
Criminal Code Act 1899 (Cth)
Cases
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Grafton and Minister for Immigration and Border Protection (2016) AATA 981
Grass v Minister for Immigration and Border Protection [2015] FCAFC 44
Hneidi And Others v Minister for Immigration and Citizenship (2010) 265 ALR 292
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Kiokata and Minister for Immigration and Multicultural Affairs [1999] AATA 1022
Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326
Secondary Materials
Australian Citizenship Policy (2016), Cth
Citizenship Protocol Instructions (2019), Cth
Macquarie English Dictionary (7th Edition, 2017)
REASONS FOR DECISION
Member D K Grigg
25 September 2020
INTRODUCTION

The Applicant is a citizen of India by birth.
The Applicant arrived in Australia in 2001 on a student visa and was subsequently granted a permanent (skilled) visa in 2003. The Applicant currently holds a Resident Return Visa (subclass 155) and is a permanent resident of Australia.[1]
[1] Exhibit 1, T Documents, T4, pages 8-24, Application for Australian Citizenship by conferral.
The Applicant married in 2006 and has two children by that marriage. His wife, also originally from India, became an Australian citizen in 2017.[2]
[2] Exhibit 5, Applicant’s Affidavit affirmed 22 April 2020 (“Aff”), page 2.
On 4 July 2016 the Applicant applied for Australian citizenship by way of conferral under section 21(2) of the Australian Citizenship Act 2007 (Cth) (“Citizenship Act”)[3] (“Citizenship Application”).
[3]Exhibit 1, T Documents, T4, pages 8-35, Application for Australian Citizenship dated 22 July 2016.
On 17 October 2016, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs within the Department of Home Affairs, the Respondent in this matter (“DHA”) informed the Applicant that the DHA had become aware (via a criminal record check) that:
(a)the Applicant had been convicted of two offences involving a child under 16 years of age; and
(b)on two occasions, the Applicant had failed to comply with reporting requirements concerning those offences.
The DHA informed the Applicant that this information may indicate that he was not of good character.[4]
[4] Exhibit 1, T Documents, T5, pages 36-42, T8, page 58, Email from department to applicant.
The primary concern of the Respondent centres around two convictions. In April 2004, at the age of 26, the Applicant was charged with crimes under sections 218A(1)(a) and 218A(1)(b) of the Criminal Code (Qld). Pursuant to section 218A(1)(a) and 218A(1)(b) of the Criminal Code, a person who:
(a)by threats or intimidation of any kind, procures a person to engage in a sexual act, either in Queensland or elsewhere; or
(b)by a false pretence, procures a person to engage in a sexual act, either in Queensland or elsewhere;
commits a crime.
Maximum penalty—imprisonment for 14 years
The crime committed by the Applicant was in relation to a purported minor of 14 years of age. In 2004 the Applicant went online and entered a chat room called “Brisbane Boys and Girls”.[5] He commenced messaging with a “girl”. The “girl” told the Applicant she was 14 years old. During the conversation the Applicant turned on his video camera and commenced masturbating in front of the girl. The Applicant then arranged to meet the girl on the same day at a nearby park. When the Applicant arrived at the park he was met by the Queensland Police. The “girl” he had been chatting with was actually an undercover police officer.
[5] Transcript of Proceedings, dated 18 August 2020 (“Tr”), page 10.
The Applicant pled guilty to the charges and was sentenced in September 2005 in the Brisbane District Court to:[6]
(a)18 months imprisonment wholly suspended for four years for using the internet to expose indecent matter to a child under 16; and
(b)240 hours of community service for using the internet to procure children under 16.
[6] Exhibit 2, Supplementary T Documents, ST3, page 10, Extracts of police documents.
The convictions are now “spent convictions” in that the Applicant was not sentenced to imprisonment for the offence and the waiting period (being the period of 10 years beginning on the day on which he was convicted) for the offence has ended (section 85ZM, Crimes Act1914 (Cth)). Although spent, the conviction was disclosable to the Respondent and to the Tribunal pursuant to section 85ZZH of the Crimes Act 1914 (Cth) which provides relevantly that the offence must be disclosed to:
(c)a court or tribunal established under a Commonwealth law, a State law or a Territory law, for the purpose of making a decision, including a decision in relation to sentencing;
(d)a person who makes a decision under the Migration Act 1958 , the Australian Citizenship Act 2007, or the Immigration Act 1980 of the Territory of Norfolk Island, for the purpose of making that decision
The Applicant provided a statutory declaration and other supporting evidence to the Respondent to support his Citizenship Application.[7] Although the Applicant had informed the Respondent about his convictions, he did not disclose that he had failed to comply with the reporting requirements associated with those convictions.
[7]Exhibit 1, T Documents, T6, pages 43-49, Various Documents from the Applicant between November and December 2016.
The Applicant was advised on 16 January 2020 that his Citizenship Application had been refused on the grounds that he was not of “good character” (“DHA Decision”).[8] Pursuant to section 21(2)(h) of the Citizenship Act a person is only eligible to become an Australian citizen if they are of “good character”. The DHA had formed the view that:
(a)the offences were serious offences. The Citizenship Protocol Instructions (“CPI”), which is a guide used by the DHA in determining a person’s eligibility for citizenship, specifically sets out that crimes against children are serious offences; and
(b)the Applicant’s conduct in committing those offences do not align with community standards and expectations.
[8]Exhibit 1, T Documents, T8, pages 53-63, Email from Department to Application – Notice of refusal.
In its decision, the DHA referred to the case of Prasad and Minister for Immigration and Ethic Affairs [1994] AATA 326, where the AAT said:
[7]…a decision about whether a person is of good character requires the consideration of an aggregate of qualities…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.
(emphasis added)
The Applicant is seeking a review by this Tribunal of the DHA Decision pursuant to section 52(1)(b) of the Citizenship Act.[9]
[9]Exhibit 1, T Documents, T2, pages 3-6, Application for Review of Decision dated 29 January 2020.
In support of his application for review the Applicant prepared and filed an affidavit, and provided the Tribunal with some character references. The Applicant also gave evidence at the hearing.
ISSUE FOR DETERMINATION
The issue for determination by the Tribunal is whether the Applicant is of “good character”.
LEGISLATIVE REQUIREMENTS
Pursuant to section 24 of the Citizenship Act:
1If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Note: The Minister may cancel an approval: see section 25.
1AThe Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
Pursuant to section 21(2)(h) of the Act, a person is eligible to become an Australian citizen if, among other things, the person is of good character.
IS THE APPLICANT “OF GOOD CHARACTER”?
What does “good character” mean?
The term “good character” is not defined in the Citizenship Act.[10] The Full Federal Court in Grass v Minister for Immigration and Border Protection [2015] FCAFC 44 (“Grass”) noted that the absence of a definition meant that (emphasis added):
[60] … Parliament clearly intended the term to be used in a broad way, and refrained from taking the approach adopted in the Migration Act of giving specific content to a character criterion. This appeal does not raise for consideration the proper construction of the term “good character”, but it is important to note the absence of a definition and, again, the legislative decision to leave room to the repository of the cancellation power to reconsider a range of events and conduct connected with the person who has been granted a citizenship approval.
[10]Unlike in the Migration Act where section 501(6) sets out a list of matters which result in a person not passing the “character test” and being exposed to having her or his visa cancelled under the Migration Act; Grass v Minister for Immigration and Border Protection [2015] FCAFC 44, at [60].
The Respondent referred the Tribunal to the Citizenship Policy (2016) and CPI which provide guidance on the interpretation of, and the exercise of powers under, the Act. The Tribunal is not bound to apply the Citizenship Policy, but it may, and it should, apply it in exercising its discretion unless it is unlawful or “tends to produce an unjust decision”.[11]
[11]Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645.
Brennan J explained the relevance of an adopted policy to decision-making in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640 (“Drake (No 2)”):
Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process.
The Full Federal Court in Hneidi And Others v Minister for Immigration and Citizenship (2010) 265 ALR 292 set out the four propositions which emerge from Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 (“Drake”) when considering the entitlement of an administrative decision-maker to take into account a statement of governmental policy:
[41] …The first is that the decision-maker is entitled, in the absence of specifically defined criteria for the exercise of the discretion, to take into account “government policy”. Thus, where the tribunal is not under a statutory duty to regard itself as bound by the policy, it is entitled to treat the policy as a relevant consideration.
[42] Second, in the absence of a specific statutory provision (which would no doubt be unusual) the Tribunal is not entitled to abdicate its function of determining whether the decision under review was, on the material before the tribunal, the correct or preferable one, to a more passive function of determining whether the decision conformed to the relevant policy.
[43] Third, it is not desirable to frame a general statement of the part which government policy should ordinarily play in the determinations of the tribunal. That is a matter for the Tribunal to determine in the context of the particular case, informed by considerations of the desirability of consistency of administrative decisions but balanced against the ideal of justice in the individual case.
[44] Fourth, the borderline between cases in which the Tribunal has abdicated its functions to those of an unthinking application of “government or Ministerial policy” to the facts may sometimes be blurred. But where the Tribunal considers that the correct or preferable decision results from the application of such a policy, it should make it clear that:
“… it has considered the propriety of the particular policy and expressly indicates the considerations which have led it to that conclusion.”
In Drake, Brennan J (as President of the AAT) noted that:
… an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application[12]
The Tribunal’s duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.[13]
Further, consistency with comparable cases and decisions is “[o]ne of the factors to be considered in arriving at the preferable decision… and one of the most useful aids in achieving consistency is a guiding policy.”[14]
[12]Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645.
[13]Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 642.
[14]Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 643.
The Tribunal is not aware of any “cogent reason” why it should not take the Citizenship Policy and CPI into consideration.
Chapter 11 of the Citizenship Policy provides guidance on the administration of the “good character” provisions under the Citizenship Act and to define, for administrative purposes, the meaning of “good character”.
In summary, the Citizenship Policy advises that “good character” is to be objectively assessed by reference to “enduring moral qualities” such as being able to distinguish right from wrong, and behaving ethically, legally and honestly in accordance with Australian rules and values. The Citizenship Policy provides more fully as explained by the following relevant exerts (emphasis added):
It is not departmental policy for decision makers to be bound by a check-list. Decision makers need to look at the merits of each case and to turn their minds to the issues of character until they are ‘satisfied’, on a reasoned basis that an applicant is, or is not, of good character.[15]
[15]Citizenship Policy (2016) Chapter 11, page 144.
…
Most cases have adopted the following 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.
In this context, ‘moral’ does not have any religious connotations. The phrase ‘enduring moral qualities’ encompasses the following concepts:
·characteristics which have been demonstrated over a very long period of time
·distinguishing right from wrong
·behaving in an ethical manner, conforming to the rules and values of Australian society.
The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.
This broad definition means that 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 their migration and citizenship processes.
In Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, Deputy President 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.[16]
[16]Citizenship Policy (2016) Chapter 11, page 145.
…
Drawing from the definition outlined in Definition of good character, an applicant of good character would:
·respect and abide by the law in Australia and other countries
·be honest and financially responsible (for example, pay their taxes, and not be in dishonest receipt of public funds)
·be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:
·providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications
·involvement in bogus marriage
·concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship
·involvement in Centrelink or Australian Tax Office fraud
·giving false names and/or addresses to police
·not be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance)
·not be associated with others who are involved in anti-social or criminal behaviour, or others who do not uphold and obey the laws of Australia
·not have evaded immigration control or assisted others to do so, or been involved in the illegal movement of people
·not have committed, been involved with or associated with war crimes, crimes against humanity and/or genocide
·not be the subject of any extradition order or other international arrest warrant
·not be involved in or providing assistance to, or reasonably suspected of being involved in or providing assistance to, terrorist organisations or acts of terrorism overseas or in Australia and
·not be the subject of any verifiable information causing character doubts.[17]
…
In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standards. Having regard to the words of the Preamble, and the pledge to be made if citizenship is approved, decision makers are asking themselves:
·would a person of good character have behaved the way the applicant did
·what is there to demonstrate that the applicant has upheld and obeyed the law
·has the applicant behaved in accordance with Australia's community standards
·does the applicant share Australia’s democratic beliefs and respect its rights and liberties.[18]
CONTENTIONS AND CONSIDERATION
[17]Citizenship Policy (2016) Chapter 11, page 147.
[18]Citizenship Policy (2016) Chapter 11, pages 149-150.
Contentions

The main circumstances which the Respondent contends give rise to a finding that the Applicant is not of good character are:[19]
(a)the seriousness of the Applicant’s offending;
(b)the Applicant’s persistent efforts to minimise the culpability of his offending; and
(c)the Applicant’s failure to declare the breaches of his reporting conditions.
[19]Exhibit 4, Respondent’s Statement of Facts, Issues and Contentions dated 24 June 2020, [34].
The Applicant contends that he is of good character and emphasises the fact that:
(a)his conviction occurred 16 years ago and is now spent;
(b)he is remorseful; and
(c)he is a contributing member of the community.
Consideration
The Applicant gave the following evidence in his affidavit and at the hearing.
Prior to committing the offence, the Applicant would on occasion meet females on the internet.[20]
[20] Aff, [8]
The Applicant described his conduct in committing the offences as “an aberration of character”,[21] “one failure of judgment”,[22] “one very silly mistake”,[23] and a “temporary mindless act”.[24]
[21]          Aff, [13]
[22]          Aff, [46]
[23]          Aff, [55]
[24]          Aff, [22], [53]
The Applicant believes he was “entrapped” in the conversation by the Police.[25] The Macquarie Dictionary defines “entrapped” to mean:
1.  to catch in or as in a trap; ensnare.
2.  to bring unawares into difficulty or danger.
3.  to draw into contradiction or damaging admission.
4.  to draw into a breach of a law.[26]
[25]          Aff, 9
[26]          Maquarie English Dictionary (7^th Edition, 2017) definition of ‘entrapped’ entries 1 – 4.
The Applicant stated that but for the “entrapment conversations”, “the conversation wouldn’t have led to where it has”.[27]
[27] Tr, 26
The Applicant appears to place the blame for his conduct on the police. The Applicant believed at the time that the person he was communicating with online was 14 years old. Despite this knowledge, the Applicant continued to engage in sexual activity for his own benefit without any thought of whether it was right or wrong, legal or illegal.
In his affidavit, the Applicant describes his offence as a “victimless crime”.[28] The Applicant states in his affidavit that he draws consolation from the fact that no person was involved. This appeared to the Tribunal to be an attempt to derogate from the seriousness of his conduct. The Applicant seems unable to admit that he knew/intended to engage in illegal conduct with a minor. The fact that it later turned out to be a covert police officer is of no consequence to the seriousness with which this conduct is viewed, or to the “manifestation” of his “essential characteristics”.[29]
[28] Aff, 13
[29] Chapter 11, Citizenship Policy (see page 8 above).
During the police interview in 2004 and in his affidavit of April 2020, the Applicant provided a number of excuses for his conduct which all relate to his assertion that his being aroused rendered him unable to control his actions:–
·He was “sexually aroused” and therefore “not thinking clearly”[30]
·“I proceeded too quickly”[31]
·Being “conditioned [by the police] to having intimate chats” online, his judgement was “muddled”[32]
·“I had made various assumptions in my mind to self-pleasure myself in this instance”[33] – the Applicant did not explain what he meant by “assumptions”. The Tribunal is unaware of any assumptions that could be made which would justify engaging in the conduct he did in front of an assumed minor;
·“I failed to stop myself”[34] – there is nothing in the transcript of the conversation with the girl which evidences any attempt by the Applicant to “stop” himself
·“I was in a heightened self-pleasured state” which led to arranging to meet up with the girl[35] - this demonstrates the Applicant putting his own needs, in this case his sexual needs, before that of a minor
·“it’s the struggle between that moment of pleasure and your normal thinking”[36]
[30]        Aff, [16]
[31]        Aff , [17].
[32]          Aff, [17]
[33]          Aff, [18]
[34]          Aff, [18]
[35]          Aff, [18]
[36]          Aff, Annexure R2, Police Record of Interview
At the hearing the Applicant again excused his behaviour on the basis of being sexually aroused. He said the online conversations “happened in a situation where I let myself, you know, not – you know, decide what’s right, what’s wrong, you know, I was sexually aroused”.[37] This is a poor excuse. There is no medical evidence before the Tribunal which supports a conclusion that sexual arousal rendered the Applicant unable to exercise judgment. There is no medical evidence that the Applicant suffers from a sexual disorder or other condition which would explain or excuse his behaviour.
[37] Tr, 15
These excuses are indicative of the Applicant failing to acknowledge his voluntary engagement in the conduct which led to his ultimately being charged, pleading guilty, and being subsequently convicted of serious offences.
In terms of the offence of procuring a person online the Applicant now resiles from his admission of guilt for that offence by contending that he was somehow persuaded or encouraged by the police and his barrister to plead guilty.[38]
[38] Tr, 21
The Applicant’s evidence or statement of what occurred and his intentions in relation to meeting up with the “girl” has also changed since the initial commission of the offence.
During his police interview in 2004, on the day the incident occurred, the Applicant told the police that he had arranged to meet the girl for the purpose of engaging in sexual acts.
The Queensland Police Court brief records that the Applicant said:[39]
(a)he asked the covert identity if he could meet with her to “teach her”;
(b)he intended to “rub the covert identities genitals and show her what an orgasm was”; and
(c)he admitted attempting to meet the girl for a sexual purpose.
[39] Exhibit 2, Supplementary T Documents, ST3, page 17, Extracts of police documents.
The Applicant also told the Police he was “high on desire” when he was on the computer in front of the camera, but then he wanted to meet the girl to tell her “I’m not this person” and that he was “sorry” because he “was under the impression that she liked that”.
In his affidavit, affirmed in April 2020 (16 years after the offence was committed), the Applicant says he was keen to meet the girl because he thought she might be “prone to harming herself” and may need “help”.[40] He states his “sole intention was to confront the individual and confess to the wrongs [he] had exposed her to and convince her to return home”.[41] At the hearing he said he basically wanted to “explain myself to just forget and move on and basically ask forgiveness”.[42] The changes in his explanation for arranging the meeting and his continuing to go to the meeting place, appear to be an attempt to convince the Tribunal that his arranging to meet the girl should not be regarded with concern. So determined is the Applicant to step away from this conduct, he now resiles from his guilty plea.
[40]          Aff, [20]
[41]          Aff, [21]
[42]          Tr, 24
A further aspect that concerns the Tribunal is that the Applicant now states he wanted to tell the girl to “forget what happened”.[43] This again demonstrates a complete lack of understanding of the impact such abhorrent behaviour can have on a minor, and lacks all credibility.
[43] Aff, [21]
At the hearing before this Tribunal the Applicant gave the following inconsistent evidence regarding his intentions to meet up with the “girl”. He said he wanted to meet her because she might kill herself but he also admitted that he wanted to meet the girl and said “the intention at the time in that active state of sexual arousal was to catch up”.[44]
[44] Tr, 16
The Applicant seeks to explain what appears to be inconsistent evidence by saying that he did not intend to engage in a sex act with the girl by the time he arrived at the park and that he wanted to meet her to “sever any further discussions”.[45] The Applicant had the girl’s telephone number and could have called or sent a text message if he wanted to check on her well-being.
[45] Aff, 14
There is no indication in the police transcript that the Applicant made any attempt to end the conversation once he became aware the girl was only 14 years of age. In fact, the Applicant continued to engage in a sexual conversation and proceeded to masturbate on video camera. At one stage the girl told the Applicant he did not have to do that (in reference to his masturbating) to which the Applicant responded that it was alright, and later continued to persuade the “girl” by saying “Trust me, I’m a nice guy”. At the hearing, the Applicant again took no responsibility and explained it away as if having “lost” his “rational thinking process”.[46]
[46] Tr, 18
Serious of the Offence
The Tribunal agrees with the Respondent that “[t]he seriousness of the offending is manifestly obvious given it was a sexual crime relating to minors”. This is emphasised in the CPI. The Tribunal also notes that at the time the Applicant was sentenced for the offences in the District Court, Noud J remarked that members of the community would find the offences abhorrent.[47]
[47] Exhibit 2, ST3, Transcript of District Court proceedings dated 23 September 2005.
CPI 15 sets out the relevant factors to take into account in determining whether a person is of good character. It provides that one factor which is relevant to an assessment of good character is whether a person has committed a crime against children and whether a person has been sentenced to more than 12 months imprisonment. These offences are classified by the CPI as serious offences.
Applicant’s persistent efforts to minimise the culpability of his offending
The Respondent submits that, despite the passage of time since the crimes were committed, the Applicant has attempted to minimise the culpability of his offending. The Respondent points to the fact that:
(a)When the Applicant arranged to meet the girl at the park, the Applicant says he was only intending to tell the girl that what they had done was wrong and was not intending to engage in a sex act with her. The Respondent submits that this is an implausible reason for arranging to meet a 14 year old you had just engaged in a video sex act with, and is merely an attempt to minimise his culpability;
(b)the Applicant does not appear to accept full responsibility for his actions which is contrary to a person with the “enduring moral qualities of a person of good character”.[48]
[48]See Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422; at 431-432 and Citizenship Policy.
The Tribunal finds that the attempts by the Applicant to downplay the serious of the offences or his responsibility for his actions weigh very heavily against the Applicant’s character. They also effect any impact the passage of time may have had on his application.
The failure to declare the breaches of his reporting conditions
As part of the conditions of his sentences, the Applicant was a “Reportable Offender” listed on the Australian National Child Offender Registry. Pursuant to the Child Protection (Offender Reporting) Act 2004 (Qld) (“CPOR Act”) the Applicant had various reporting obligations.
In 2006 and 2009 the Applicant breached his reporting obligations as follows:[49]
(a)in 2006 the Applicant failed to report that he had departed his home and travelled for four weeks. All travel is required to be reported pursuant to the CPOR Act and a failure to comply with those reporting obligations is a crime (section 50, CPOR Act); and
(b)in 2009 the Applicant failed to report a change in his employment details.
[49]Exhibit 2, Supplementary T Documents, ST1, Extracts of Policy Documents; Exhibit 1, T Documents, T5, page 41, Email from DHA, invitation to comment.
The Applicant did not disclose the breaches of his Reporting Obligations in his Citizenship Application.
The Applicant has explained the reasons for those breaches and for not disclosing them in his Citizenship Application as follows:
·“forgetfulness”;[50]
·“oversight”;[51]
·“slipped his mind”;[52]
·“he had a lot happening in his life at that time”;[53]
·It was a “technical breach only”;[54]
·“I had completely forgotten about the 2 technical breaches”[55]
[50]          Exhibit 1, T Documents, T6, page 43-44, Documents provided by Applicant.
[51]          Exhibit 1, T Documents, T6, page 43, Documents provided by Applicant.
[52]Exhibit 2, Supplementary T Documents, ST1, Extracts of Police Documents.
[53]          Exhibit 2, Supplementary T Documents, ST1, Extracts of Police Documents.
[54]          Exhibit 1, T Documents, T6, page 43, Documents provided by Applicant.
[55]Exhibit 1, T Documents, T8, page 60, Documents, provided by Applicant.
The Applicant seeks to downplay his actions. Describing his failure to comply with important Reporting Obligations as “a technical breach” does not derogate from the fact that he breached his legal obligations.
The Respondent pointed out to the Tribunal that CPI 15 provides at 4.4 that an Applicant’s candour, or lack thereof, is relevant to the issue of good character.
The Tribunal finds that these instances in failing to comply with important reporting obligations imposed due to the very serious nature of the offences committed further weigh against a finding that the Applicant is of good character.
While the Applicant expressed remorse, the Tribunal feels that the remorse is directed primarily at having been caught, and not directed at what the consequences of his actions could have been if the person he masturbated in front of (via video cam) had in fact been a 14 year old girl and not an undercover police officer.
The offences committed by the Applicant, and his repeated excuses for having committed those offences, are very serious.
These factors weigh against a finding that the Applicant is a person of good character.
The Applicant’s character references do not carry the required level of weight for the reasons given in Kiokata and Minister for Immigration and Multicultural Affairs [1999] AATA 1022, where the Tribunal remarked that the:
[109] ...references are subjective views of persons having contact with Mr Kiokata, and should not be given the same weight that should be accorded to Mr Kiokata's own actions and conduct which has been set out in substantial detail above".[56]
[56]Applied in the decision of Grafton and Minister for Immigration and Border Protection (2016) AATA 981 at [72].
The character witnesses were not called to give evidence.
The Tribunal acknowledges that since the commission of the offence the Applicant has worked consistently, operated a business which has donated to charities and has remained married and raised two children. However, this does not, in light of the findings above, overshadow the adverse serious incident and the Applicant’s efforts to minimise his culpability.
CONCLUSION
The Tribunal finds that in considering all of the circumstances outlined above, the Applicant is not of “good character” and therefore does not meet the eligibility criteria as per section 21(2)(h) of the Act.
DECISION
The Applicant is not eligible for citizenship under section 24 of the Act because he does not meet the eligibility criteria as per section 21(2)(h) of the Act.
The decision under review is affirmed.

I certify that the preceding 68 (sixty -eight) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

.................................[SGD].......................................
Associate
Dated: 25 September 2020

Date of hearing: 10 August 2020

Date final submissions received: 6 July 2020

Counsel for the Applicant: Mr Andrew See, by Video

Advocate for the Respondent: Mr A Chan, Sparke Helmore Lawyers, by video

[2020] AATA 3785

25 September 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	10 August 2020
Date final submissions received:	6 July 2020
Counsel for the Applicant:	Mr Andrew See, by Video
Advocate for the Respondent:	Mr A Chan, Sparke Helmore Lawyers, by video