NPRT and Minister for Home Affairs (Citizenship) - [2020] AATA 3641

NPRT and Minister for Home Affairs (Citizenship) [2020] AATA 3641 (18 September 2020)
Division:GENERAL DIVISION
File Number: 2019/7173
Re:NPRT
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:18 September 2020
Place:Brisbane

The reviewable decision is set aside and substituted with a decision not to revoke the Applicant’s citizenship pursuant to section 34 of the Australian Citizenship Act 2007 (Cth).
.................................[SGD]..................................
Deputy President J Sosso
CATCHWORDS
CITIZENSHIP – revocation – where Applicant was convicted of three counts of indecent treatment of a child under the age of 16 – where Applicant applied for and was granted citizenship before conviction – whether it would be contrary to the public interest for the Applicant to remain an Australian citizen – whether the discretion to deprive a person of their citizenship ought to be exercised to revoke the Applicant’s Australian citizenship – decision under review set aside – Applicant’s citizenship should not be revoked
LEGISLATION
Australian Citizenship Act 2007 (Cth)
Migration Act 1958 (Cth)
CASES
CKLL and Minister for Immigration and Border Protection [2019] AATA 6871
Kleeman and Minister for Immigration and Border Protection [2017] AATA 875
McKinnon v Secretary, Department of Treasury [2005] FCAFC 142, 145 FCR 70
Minister for Immigration and Border Protection v Egan [2018] FCAFC 169
Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575
Osorio and Minister for Immigration and Citizenship [2007] AATA 59
Re Davis (1947) 75 CLR 409
Re Prasad and Minister Assisting the Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 292
Shukure and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 63
TRHL and Minister for Immigration and Border Protection [2015] AATA 803
TRHL v Minister for Immigration and Broder Protection [2016] FCA 376
Waraich and Minister for Immigration and Border Protection [2018] AATA 4524
WBU and Minister for Immigration and Citizenship [2007] AATA 1143; 45 AAR 225
SECONDARY MATERIALS
Rubenstein, Australian Citizenship Law, 2^nd ed 2017
REASONS FOR DECISION
Deputy President J Sosso
18 September 2020
INTRODUCTION

On 18 October 2019 the Minister for Home Affairs (the Respondent) exercised his discretion under s 34(2) of the Australian Citizenship Act 2007 (the Act) to revoke NPRT’s (the Applicant) Australian citizenship. Pursuant to s 52(1)(f) of the Act, an application may be made to the Administrative Appeals Tribunal for review of a decision to revoke a person’s Australian citizenship.
Section 34 of the Act confers power on the Respondent to revoke a person’s Australian citizenship in certain circumstances. Of relevance in this matter is s 34(2)(b)(ii) and (c) which empowers the Respondent to revoke a person’s Australian citizenship if:
“(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)…
(c) the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.”
Conviction of a serious offence is defined by s 34(5) of the Act to mean:
“(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.”
A “serious prison sentence” is defined by s 3 to mean a “sentence of imprisonment for a period of at least 12 months.”
The Applicant was born in the United Kingdom in 1947 and emigrated to Australia with his family on 1 January 1987 – Exhibit 1 T4 p. 10.
It is not disputed that the Applicant was granted Australian citizenship on 26 January 1996 and thus became an Australian citizen under Subdivision B of Division 2 of the Act – Exhibit 1 T5 pp. 19 – 20.
Subsection 34(3) of the Act provides that the Respondent must not revoke a person’s Australian citizenship pursuant to s 34(2) if such revocation would result in the person becoming neither a national or citizen of any country.
It is not contested that the Applicant acquired British citizenship and that he had neither lost or otherwise renounced his British citizenship. The Tribunal has not been presented with any evidence that s 34(3) is applicable to the Applicant.
On 13 June 2008 the Applicant pleaded guilty in the Ipswich District Court to three counts of indecent treatment of a child under the age of 16. The child was the Applicant’s daughter and the offences were committed between January 1987 and June 1991. The Applicant was sentenced to a term of imprisonment of three and a half years – Exhibit 2 TB3 pp. 13 - 14.
It flows from these undisputed facts that the Applicant committed the serious offences before he became an Australian citizen (s 34(5)(b)) and was convicted of the said serious offences after he applied for, and was granted, Australian citizenship (s 34(2)(ii)).
As a consequence, the Tribunal makes the following findings:
(a)s 34(2)(a) is satisfied;
(b)s 34(2)(b)(ii) is satisfied;
(c)s 34(5) is satisfied; and
(d)the Applicant was sentenced to a serious prison sentence.
It also flows from those findings that the only two issues that require resolution are as follows:
(a)whether it is contrary to the public interest for the Applicant to remain an Australian citizen – s 34(2)(c)? (the public interest question); and
(b)whether, if that be the case, the discretion ought to be exercised to revoke the Applicant’s Australian citizenship? (the exercise of discretion question).
In TRHL v Minister for Immigration and Broder Protection [2016] FCA 376 (TRHL2), Gilmour J made the following observations (at [53]) regarding the two step process that is required:
“…the Tribunal’s reasons here disclose that it was aware that it had firstly to be satisfied that it would be contrary to the public interest for the appellant to remain an Australian citizen before the discretion in s 34(2) of the Migration Act [sic] was enlivened, and if it was so satisfied, to decide whether, balancing the factor relied upon by each the Minister and the appellant, it should exercise the discretion to revoke the appellant’s Australian citizenship.”
Until recently revocation of citizenship on the grounds of fraud or serious offences was a relatively rare occurrence. From 1948 until May 2016 there were approximately 20 revocations for serious offences and fraud, with only one revocation between 1948 and 1969 and only three between 1969 and 1987. Since 2006 has the Ministerial discretion to revoke a person’s citizenship been exercised on a more frequent basis – Rubenstein, Australian Citizenship Law, 2^nd ed 2017 para 4.1230.
Senior Member Walsh in TRHL and Minister for Immigration and Border Protection [2015] AATA 803 (TRHL1) at [23] described the revocation of a person’s Australian citizenship as “an extraordinary power which has historically been used sparingly.”
The revocation of a person’s citizenship is a serious matter and necessarily results in the affected person being placed in a deleterious and exposed position. The loss of citizenship can also result in that person’s family, friends and business associates being negatively impacted. It is a draconian power whose exercise necessarily results in life changing consequences for not only the ex-citizen but others he or she is associated with.
Whilst the discretion to revoke a person’s Australian citizenship involves the exercise of an extraordinary power, it is, nonetheless, a power that has long resided in the Minister of the Crown responsible for citizenship matters. The law of Australia, and many other liberal democracies, recognise that the grant of citizenship is a privilege, and that privilege can be forfeited where the person has breached the laws of his or her host country or otherwise engaged in conduct which is subversive of the host nation.
In each and every case, the Tribunal has to carefully assess and weigh the evidence presented and apply the law without having regard to irrelevant considerations, such as the frequency that the revocation power has been exercised in the past.
A person ceases to be an Australian citizen at the time of the revocation by the Minister – s 34(4). However, as in this case with the Applicant, when a person is in Australia when the revocation decision is made, that person automatically holds an ex-citizen visa. The relevant law is contained in s 35 of the Migration Act 1958 which is set out below:
“Ex‑citizen visas
(1) There is a class of permanent visas to remain in, but not re‑enter, Australia, to be known as ex‑citizen visas.
(2) A person who:
(a) before 1 September 1994, ceased to be an Australian citizen while in the migration zone; and
(b) did not leave Australia after ceasing to be a citizen and before that date;
is taken to have been granted an ex‑citizen visa on that date.
(3) A person who, on or after 1 September 1994, ceases to be an Australian citizen while in the migration zone is taken to have been granted an ex‑citizen visa when that citizenship ceases.
(4) Subdivisions AA, AB, AC (other than section 68) and AH do not apply in relation to ex‑citizen visas.”
As will be noted, this is a permanent visa, however it only confers a right to remain in Australia. It does not carry with it permission to return to Australia if the person leaves Australia for any reason. In such circumstances a Resident Return Visa is required, and there is no guarantee, or even likelihood, that such a visa would be granted. In short, a person holding an ex-citizen visa runs the risk of being refused re-entry to Australia if he or she undertakes international travel.
The implications of this state of affairs for the Applicant is further discussed below.
THE HEARING
A Hearing was convened in Brisbane on 16 and 17 June 2020.
The Applicant was represented by Mr P Duncan of Newland Chase. The Respondent was represented by Ms K Slack of Counsel instructed by Mr J Kyranis of Sparke Helmore Lawyers.
Due to the impact of the coronavirus pandemic, the Hearing was convened by videoconference and telephone, with Mr Duncan and Ms Slack and the Applicant linked in from Queensland.
On 16 June 2020, the Tribunal heard evidence from the Applicant, the Applicant’s second wife (HE) and Mr Jonathon Rodwell, the National Director of a Christian Mission organisation called “Operation Mobilisation.”
On 17 June 2020, the Tribunal heard evidence from:
(a)Pastor Robert Jones;
(b)Dr Stephen Beaumont;
(c)Mr Robert Aldred, a professional social worker;
(d)Mr Bruce Michael;
(e)Mr Rowan Michael;
(f)Ms Fionnuala Smyth, who practiced as a child specialist lawyer in the United Kingdom for 14 years;
(g)HE’s son and the Applicant’s stepson (TD); and
(h)HE’s other son and the Applicant’s other stepson (RD).
In order to maintain confidentiality for the Applicant, the Applicant’s name has been replaced with a pseudonym. In addition, acronyms have been used for those witnesses who are members of his family.
CRIMINAL HISTORY
The Tribunal has been presented with no evidence that the Applicant, prior to emigrating to Australia, committed any offences whilst residing in the United Kingdom.
As previously noted, the Applicant pleaded guilty to three counts of indecent treatment of a child and was sentenced by Koppenol J on 13 June 2008 at the Ipswich District Court.
The first count was that on a date unknown between 1 January 1987 and 13 June 1989 at Brisbane the Applicant unlawfully and indecently dealt with his daughter who was under 14 years of age – Exhibit 2 TB2 p. 7.
The second count was that on a date unknown between 13 June 1988 and 13 June 1990 at Rockhampton the Applicant unlawfully and indecently dealt with his daughter who at the time was under 14 years of age – Exhibit 2 TB2 p. 7.
The third count was that on a date unknown between 2 July 1989 and 13 June 1991 at Brisbane the Applicant unlawfully and indecently dealt with his daughter who then aged under 12 years of age – Exhibit 2 TB2 p. 7.
At the time of the offences the Applicant was aged between 39 and 44 years and his daughter was aged between 7 and 10 years – Exhibit 2 TB2 p. 7.
The first two counts involved the Applicant’s daughter masturbating the Applicant, whilst the third count involved the Applicant kissing his daughter and digitally penetrating her.
When sentencing the Applicant, His Honour Judge Koppenol made the following observations – Exhibit 2 TB2 pp. 8 – 11:
“Your conduct was disgraceful…it constituted the corruption of your daughter, who was a child, to satisfy your sexual appetite. It seems to me that no other view of your conduct is possible.
You have no criminal history. You pleaded guilty albeit after a committal hearing at which the complainant, your daughter, was cross-examined.
About 2 years after the last of these 3 offences your daughter, when she was aged 12, told her sister. As a result of that there was a family meeting, which occurred without you, at which it was decided not to report your criminal behaviour to the police. I was told by the Prosecutor that you made some general disclosures to your wife about your conduct and subsequently you and your then wife split up.
You have had little conduct with your family since then. You have since remarried and undertaken certain Bible studies. You also performed various missionary work in central Asia between 2003 and 2005. You are a qualified accountant. I accept that you have an exceptionally good work history…
You are currently being treated for depression. You also recently had prostate cancer surgery and require additional and ongoing treatment for that…
I have taken account of your plea of guilty; your good work history; the fact that you have no criminal history; the fact that your offending behaviour ceased before disclosure of your conduct was made. I have taken account of your health situation.
…the passage of time which has elapsed since these offences occurred has enabled you to demonstrate, and you have demonstrated, a significant element of rehabilitation…
For the most serious of the counts, count 3, which has a maximum penalty of 10 years’ imprisonment, I order that you be imprisoned for a period of 2 years. I order that the term of imprisonment be suspended after serving a period of 8 months’ imprisonment. You must not commit another offence punishable by imprisonment within a period of 3 years if to avoid being dealt with for the suspended term of imprisonment.
For each of counts 1 and 2, I order that you be imprisoned for a period of 18 months. I order that that term of imprisonment be suspended after your serving a period of 6 months’ imprisonment. You must not commit another offence punishable by imprisonment within a period of 2 years if to avoid being dealt with for the suspended term of imprisonment.
Each of the terms of imprisonment which I have just imposed will be served concurrently. You are, of course, convicted of each of the 3 offences.”
It is not open for the Tribunal to reconsider the facts upon which a person has been convicted. This was made clear by the Full Federal Court in Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575. His Honour Justice Sheppard made the following observations (596 – 597):
“In the present case there can be no doubt, having regard to the earlier analysis of the evidence, that the respondent was convicted of actual supply of the drug by reason of the jury’s acceptance of what the police officers claimed he admitted to them. Otherwise, as the learned trial judge said, there could have been no conviction. The jury would have been bound to acquit. Nevertheless, the Tribunal has concluded that, whilst the applicant was rightly convicted, that was the case only because the evidence led before it established that he was not himself a supplier but rather a person who had aided and abetted another person who had supplied the drug. He was a principal in the second degree – not in the first degree, as the jury must have found.
The taking of such a course by the Tribunal has, in my respectful opinion, the effect both of going behind the conviction and setting it at nought. In my opinion it is not open to the respondent to lead evidence for the purpose of showing that he was a principal in the second degree rather than in the first. Certainly it was not open to the Tribunal to treat him as convicted on the basis of that conduct rather than upon the basis of conduct which made him a principal in the first degree. To proceed as it did involved it an error of law.
I do not believe that such a conclusion is greatly restrictive of the Tribunal’s difficult and important function in deportation cases. If the view I have proposed prevails, the Tribunal remains entitled, indeed bound, to examine for itself what was involved in the entirety of the conduct of the applicant before it. This examination will include the receiving of evidence to put the tribunal in a position to weigh and to make its own assessment of the seriousness of the conduct which has led to the conviction. Nevertheless I conceded that the view I favour may, in some cases, have an inhibiting effect on the Tribunal. It may also create a degree of difficulty for it, because it will need to determine whether particular evidence sheds light on the way conduct on the part of an applicant for review should properly be viewed or whether its real effect, if accepted, would be to go behind the conviction. It will be necessary for the Tribunal to be aware at all times of the purpose for which it receives (or has received) the evidence and for which it uses the evidence. If the evidence in question is in truth evidence which involves the applicant in seeking to go behind the conviction or to have the conviction set at nought, it ought to be put aside; otherwise it will need to be weighed along with all other evidence for the purpose of deciding whether to remit the matter to the Minister for reconsideration in accordance with the Tribunal’s recommendation.”
The Tribunal has been presented with no evidence that the Applicant has been convicted, in Australia, of any other offences since his release from prison.
PERSONAL HISTORY
Prior to emigrating to Australia the Applicant was an accountant with a private practice, and for a few years was a partner with that practice – Transcript (Tr.) 17.6.2020 p. 72.
On arriving in Australia, the Applicant worked as an account in private practice and qualified as a Chartered Account – Exhibit 1 PT7 p. 44. From 1991 until 2002 worked for a law enforcement agency as a Forensic Accountant – Exhibit 1 PT7 p. 44, Tr. 17.6.2020 p. 72.
The Applicant is one of four children, comprising of a twin sister and two other sisters. Whilst the Applicant is on relatively good terms with his twin sister, he has a “so-so” relationship with his youngest sister, who lives in Canada, and no relationship with his middle sister. In contradistinction, the Applicant has a “full relationship” with his mother who resides in England and will turn 98 later this year. Each Friday the Applicant “Facetimes” his mother and has regularly visited England to see her, the last times being in August 2017 and 2019 – Tr. 16.6.2020 p. 11, Exhibit 1 PT7 p.46.
After emigrating to Australia in 1987 with his first wife and their four children, the Applicant has resided in Brisbane– Exhibit 1 PT7 p. 44.
The Applicant’s marriage collapsed in 1992 when his first wife became aware of his indecent treatment of their daughter. The evidence presented is that the Applicant left the family home in 1992 and was divorced in 1994 – Exhibit1 PT7 p. 44, Tr. 16.6.2020 p. 18.

The evidence before the Tribunal is that the Applicant has had little or no relationship with any of his children or his first wife from the time that he was charged in 2006 with the criminal offences outlined above – Tr. 16.6.2020 p. 10.
On 4 August 1995 the Applicant applied for Australian citizenship, which was duly conferred on 26 January 1996 – Exhibit 1 PT7 p. 44.
In 1997 the Applicant met HE and he testified that he told her of his criminal actions “a few months into our friendship” which was early 1998 and that he “offered to walk away from the relationship” – Tr. 16.6.2020 p. 10. The Applicant testified that HE “was shocked and took this as an affirmation of my character, that I would be willing to forgo any relationship…because of what I’d done” – Tr. 16.6.2020 p. 10. HE and the Applicant subsequently married in July 1998 – Exhibit 1 PT7 p. 44.
HE provided a statement dated 8 December 2017 in which she corroborated the Applicant’s account of how he voluntarily admitted to his criminal conduct before their marriage and also stated that her “support for [the Applicant] is unwavering as his wife and trusted friend.” – Exhibit 1 PT7 p. 59.
HE has two sons from her first marriage (RD and TD) and five grandchildren aged between 5 and 11 years – Exhibit 1 PT7 p. 44. Both of HE’s sons provided statements (Exhibit 1 PT7 pp. 56, 68) and gave testimony in support of the Applicant. The evidence of RD and TD is discussed below.
The Applicant and HE have been members of various Christian churches and have engaged in non-paid missionary work in both Australia and Central Asia. In 2000-2001 they ran a weekly English language class for overseas persons in their then Church – Exhibit 1 PT7 p. 44. In 2001 they took leave to spend 6 months teaching English for Interserve to Tajik and Afghan refugees in Kyrgyzstan – Exhibit 1 PT7 p. 45.
In 2002 the Applicant ceased full-time employment to take up voluntary service positions, and in furtherance of that goal both the Applicant and HE undertook postgraduate studies at the Bible College of Queensland – Exhibit1 PT7 p. 45. In 2004 – 2005 both the Applicant and HE undertook humanitarian aid work in Tajikistan with Operation Mobilisation. The Applicant served as Finance Manager – Exhibit 1 PT7 p. 45.
After pleading guilty to the criminal offences previously discussed, the Applicant was imprisoned from 13 June 2008 until 13 February 2009 – Exhibit 1 PT7 p. 45.
The Applicant began receiving counselling in 2006 with Dr Stephen Beaumont who at that time was working at the Garden City Christian Church and was part of its counselling centre. Dr Beaumont is neither a psychologist or a psychiatrist, but holds a Doctor of Philosophy from the University of Queensland – Tr. 17.6.2020 pp. 88, 91 - 92.
Dr Beaumont was the Applicant’s counsellor from 2006 until 2008 and has remained in contact with him since that time. Dr Beaumont provided a statement dated 5 December 2017 (Exhibit 1 PT7 pp. 48 - 49) and also gave oral evidence.
After the Applicant’s release from prison he received counselling from Pastor Robert Jones who is a Clinical Counsellor in his capacity as Chief Executive Officer of the Centre for Men Australia (CFMA) which was previously known as Men Transforming Men (MTM). Again, Pastor Jones provided a written statement in support of the Applicant (Exhibit 1 PT7 p. 60) and gave evidence on 17 June 2020. Pastor Jones also is neither a psychologist or a psychiatrist.
The Applicant stated that his involvement with MTM “helped me through my darkest times and I wanted to give back to them because of the way I was helped. Since 2009 I have volunteered there in many areas and since late 2016 I have been the paid part-time Treasurer.” – Exhibit 1 PT17 p. 46.
From December 2014 until June 2017 the Applicant and HE undertook a caretaking role at The Old Friary – Centre for Christian Spirituality at Kenmore Hills. The Old Friary is run by the Anglican Church. Apart from maintaining the building and grounds, the Applicant and HE offered hospitality and support for the people using the Centre – Exhibit 1 PT7 p. 46.
In more recent times both the Applicant and HE have been members of the church of St Mary’s in Exile at West End. Two members of that faith community, Terry Fitzpatrick and Peter Kennedy, provided a statement dated 5 December 2017 in which, inter alia, they made the following comments – Exhibit 1 PT7 p. 62:
“We have known [the Applicant] and his wife [HE] since they became members of our faith community about five years ago. During this time we have come to know [the Applicant] to be a man of exemplary character. Always ready to be of service and to assist wherever necessary. We have found him to be very caring man, concerned often for the needs of others before his own. We are aware of the great work that he and his wife did while caretakers of a Retreat and Spirituality Centre for two years. Offering hospitality and solace to numerous people needing much needed time out and rest from their stressed and busy lives. Generously engaging his handyman skills in repairing, painting and maintaining the buildings and the many hard hours spent restoring gardens and mowing very big lawns. He has been very generous in his time in assisting many who have been down on their luck and have required much needed assistance. We believe that [the Applicant’s] risk of reoffending is very low and that we do not consider him a risk to others.”
CONTRARY TO THE PUBLIC INTEREST TO REMAIN AN AUSTRALIAN CITIZEN
The phrase “contrary to the public interest” is not defined in the Act.
Some guidance is provided by Gilmour J in TRHL1 at [29]:
“As the applicant correctly noted the use of the expression ‘public interest’ in a statutory provision imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statutory provisions: Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR 379 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ at [42]. The whole of the text must be considered when construing it: Alcan (NT) v Commissioner of Territory Revenue (Northern Territory) 2009 239 CLR 27 per Hayne, Heydon, Crennan and Kiefel JJ at [47].”
Reference can also be made to the judgment of Tamberlin J in McKinnon v Secretary, Department of Treasury [2005] FCAFC 142, 145 FCR 70 at 75-76:
“8. The reference to “the public interest” appears in an extensive range of legislative provisions upon which tribunals and courts are required to make determinations as to what decision will be in the public interest. This expression is, on the authorities, one that does not have any fixed meaning. It is of the widest import and is generally not defined or described in the legislative framework, nor, generally speaking, can it be defined. It is not desirable that the courts or tribunals, in an attempt to prescribe some generally applicable rule, should give a description of the public interest that confines this expression.
9. The expression “in the public interest” directs attention to that conclusion or determination which best serves the advancement of the interest or welfare of the public, society or the nation and its content will depend on each particular set of circumstances. There will, as in the present case, often be competing facets of the public interest that call for consideration when making a final determination as to where the public interest lies and these are sometimes loosely referred to, in my view, as opposing public interests. In the present case, broadly speaking, the competing aspects of the public interest include the benefits conferred on the public by the transparency of government processes and the need for confidentiality in certain circumstances.
10. The expression “the public interest” is often used in the sense of a consideration to be balanced against private interests or in contradistinction to the notion of individual interest. It is sometimes used as a sole criterion that is required to be taken into account as the basis for making a determination. In other instances, it appears in the form of a list of considerations to be taken into account as factors for evaluation when making a determination. By way of example, town planning legislation frequently lists a number of factors that a local council or planning body is required to take into account when making a determination, with a concluding consideration being a generalised reference to the public interest and the circumstances of the case.
11. The indeterminate nature of the concept of “the public interest” means that the relevant aspects or facets of the public interest must be sought by reference to the instrument that prescribes the public interest as a criterion for making a determination. In this respect, the well-known observations of Deane J in Sean Investments Pty Limited v McKellar (1981) 38 ALR 363 at 375 are apposite. In that case, his Honour was considering the different process of determining the relevant considerations to take into account in the exercise of a broad statutory discretion, however, the approach is relevant in the present case. His Honour said:
“In a case such as the present, where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards.”
12. 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. This 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 or 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 contexts, interests such as public health, national security, anti-terrorism, defence or international obligations may be of overriding significance when compared with other considerations.”
It is tolerably clear, then, that in determining whether it is contrary to the public interest for the Applicant to remain an Australian citizen, the Tribunal is required to carefully evaluate and weigh the evidence presented with a view to ascertaining what course of action best serves the interest or welfare of the broader Australian community. In short, the focus is not only what is in the best interests of the Applicant, his family and associates, but what best serves the advancement of the interests of the Australian body politic. This, of course, necessarily involves an evaluation of the character of the Applicant, his history and the impact that the revocation of citizenship will have on both himself and those close to him. It may well be that if an applicant is a person who has rehabilitated himself or herself and has made a significant positive contribution to the community that there is both a private and public interest in that person retaining his or her citizenship. In contradistinction, it may be that an applicant may pose an ongoing threat or possible threat to the Australian community but his or her citizenship revocation will have negative impacts on both that person and those close to him or her. In such a circumstance, the Tribunal’s primary focus must necessarily be directed to the broader public interest rather than the private interests of such a person and those close to him or her.
Senior Member Walsh observed in TRHL2 at [46] that the notion of “public interest” had its source in the eligibility criteria in s 21 of the Act.
The Tribunal accepts that in properly ascertaining what is the “public interest” the eligibility criteria set out in s 21 are relevant. Of particular importance is s 21(2)(h) which provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person:
“(h) is of good character at the time of the Minister’s decision on the application.”
Senior Member Walsh made these observations in TRHL2 at [46]:
“…the notion of the ‘public interest’ has its source in the eligibility criteria set out in s21…which criteria include the requirement that a person is of ‘good character’ at the time of the Minister’s decision on the citizenship application. ‘Good character’ being a reference to the ‘enduring moral qualities’ of a person…Consequently, the question of ‘good character’ is relevant and important in determining whether it is contrary to the ‘public interest’ that a person remain an Australian citizen under s 34(2) of the Citizenship Act. The seriousness and nature of the Applicant’s criminal offences, their duration and the Applicant’s sustained denial of guilt are indicative that the Applicant is not of ‘good character’. The Applicants ‘enduring moral qualities’ are indicative that the Applicant is not of ‘good character’: Irving.”
The Tribunal has been assisted by the decision of Deputy President Hotop in Osorio and Minister for Immigration and Citizenship [2007] AATA 59 (Osorio). The applicant in that matter was a citizen of El Salvador who migrated to Australia in 1991 as a political refugee. He was granted citizenship in September 1995 but in September 1996 was convicted of eight sexual offences against a child and sentenced to various cumulative and concurrent terms of imprisonment resulting in an effective total term of imprisonment of eight years.
The applicant conceded that at the time he applied for, and subsequently was granted, citizenship he was not a person of good character because he had commenced the commission of a series of sexual offences against his step-daughter. The applicant also conceded that he would not have been granted citizenship at that time and that it would have been appropriate to revoke his citizenship upon his conviction or within a reasonable period thereafter. However, it was contended that he had been released from prison for 5 ½ years and had re-established his good character and that it would not now be contrary to the public interest for him to continue to be an Australian citizen.
Deputy President Hotop made the following observations (at [35]):
“It is axiomatic that it is in the public interest that a person who is granted Australian citizenship under s 13(1) of the Act be a person of good character at the time of the grant of Australian citizenship and continue thereafter to be a person of good character and, accordingly, not engage in criminal conduct which is incompatible with good character. It follows, in the Tribunal’s opinion, that 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:
·was, unbeknown to the respondent and the Department, engaging in criminal conduct incompatible with good character at the time of the grant of Australian citizenship; and
·has not subsequently become a person of good character.”
The key issue, then, was whether Mr Osorio has subsequently become a person of good character. Deputy President Hotop made the following observations:
“37. …although there is no evidence before it regarding the applicant’s conduct during the period of his incarceration from May 1996 to September 2001, there is evidence before it in the form of statutory declarations and letters of support from individuals attesting to his good character, good conduct and strong work ethic in the period since his release from prison in September 2001…The Tribunal also notes the applicant’s own evidence regarding his employment record and vocational training in Information Technology since his release from prison…
38. The Tribunal notes, on the other hand, that the applicant, according to his own evidence, did not participate in any sex offender treatment programs while in prison, and has not, since his release from prison, undergone any psychological or other professional counselling regarding his offending behaviour or assessments regarding the risk of his re-offending, although he has, according to his evidence, engaged in meditation sessions with Buddhist monks from 2003 to 2005 which he found very beneficial for the purpose of his rehabilitation…The Tribunal also notes the applicant’s evidence that he has not committed any offences since his release from prison, that he intends not to re-offend, and that he is committed to becoming a better citizen and a valuable member of the Australian community.
39. Having regard, however, to:
· the very serious and utterly repugnant nature of the applicant’s sexual offending, and the substantial period over which it occurred; and
· the absence of any objective professional evidence to the effect that the applicant has been successfully rehabilitated, that his good character has been re-established, and there is no or, at least, minimal risk of his reoffending;
the Tribunal, notwithstanding the above evidence supportive of the applicant, is not [ ]satisfied that the applicant is presently a person of good character.”
Having determined that it was contrary to the public interest for Mr Osorio to remain an Australian citizen, Deputy President Hotop then addressed the second issue, namely should the discretionary power to deprive a person of their citizenship be exercised. In that regard Deputy President Hotop outlined the considerations that the Tribunal should have regard to (at [41] – [45]):
“41. …the considerations to which the Tribunal should have regard include the advantages to Australian society on the one hand, and the disadvantages or hardship to the applicant and to other persons on the other hand, which would, or would be likely to, result from depriving the applicant of Australian citizenship: Re Prasad (above) at 302.
42. The Tribunal accepts the respondent’s submission that the advantages to Australian society which would result from depriving the applicant of his Australian citizenship include:
·removal from the applicant of the status of Australian citizenship which would certainly not have been granted to him had the Department been aware of his very serious offending behaviour at that time;
·the likely deterrence of other applicants, or proposed applicants, for Australian citizenship from committing serious offences, or, having committed offences, from failing to inform the Department thereof.
43. The Tribunal also accepts, however, that depriving the applicant of his Australian citizenship would not only cause him to feel great personal disappointment and sadness but would also effectively deprive him of the freedom to travel from and to Australia. The latter consequence would follow by reason of s 35 of the Migration Act 1958 (Cth) pursuant to which the applicant at the time of his ceasing to be an Australian citizen, is taken to have been granted an ex-citizen visa (s 35(3) – that is, a permanent visa to remain in, but not to re-enter, Australia ( s 35(1)). The Tribunal notes, furthermore, that, in those circumstances, the applicant would be exposed to the risk of future cancellation of his ex-citizen visa on character grounds, pursuant to s 501(2) of the Migration Act, and consequential removal from Australia. The Tribunal accepts that such a consequence would cause great personal hardship to the applicant and at least substantial emotional hardship to his partner and to his natural daughter, and to a lesser extent to his ex-wife and friends.
44. The Tribunal also notes that the decision to deprive the applicant of his Australian citizenship…was not taken until 23 May 2006 – that is, some 4 years and 8 months after he was released from prison, and some 9 years after he was first informed by the Department that he was liable to be deprived of his Australian citizenship by reason of his criminal convictions in September 1996. In the Tribunal’s opinion that substantial delay on the part of the Department, in the course of which the applicant was seeking to rebuild his life in Australia after his release from prison in the likely expectation that no adverse action was going to be taken by the Department, can only serve to exacerbate the degree of disappointment and hardship caused to the applicant by the eventual decision to deprive him of his Australian citizenship.
45. Having regard to, and balancing, all of the abovementioned considerations, the Tribunal is of the opinion that it is appropriate to exercise the discretionary power…to deprive the applicant of his Australian citizenship. In the Tribunal’s assessment, the considerations referred to in paragraphs 43 – 44 above, which militate against an exercise of that discretionary power, are clearly outweighed by the considerations referred to in paragraph 42 above which militate in favour of an exercise of that discretionary power, including the fact that the applicant, at the very time he applied for Australian citizenship and was awaiting the outcome of his application, was, unbeknown to the Department, engaged in committing a series of very serious and repugnant sexual offences against his 13-year-old step-daughter – conduct which clearly demonstrated that he was not of good character and that he was utterly unworthy of Australian citizenship, and which, had the Department been aware of it, would certainly have resulted in the rejection of his application. In arriving at that conclusion, the Tribunal notes that the most serious adverse consequences which may result from depriving the applicant of his Australian citizenship – namely, the cancellation of his ex-citizen visa and his removal from Australia – are presently matters of mere speculation and, accordingly, although the Tribunal has had regard to those matters, it has not attached substantial weight to them.”
CONSIDERATION
Introduction

As previously noted, the Tribunal is required to undertake a two step process.
First, the Tribunal must determine whether it is contrary to the public interest for the Applicant to remain an Australian citizen.
Second, if the Tribunal concludes that it is contrary to the public interest for the Applicant to remain an Australian citizen, then the Tribunal must determine if the discretion ought to exercised to revoke the Applicant’s Australian citizenship.
Whether it is contrary to the public interest for the Applicant to remain an Australian citizen
Factors to be considered
In determining whether it is contrary to the public interest for the Applicant to remain an Australian citizen, previous Tribunal determinations have focused on a number of key factors. Whilst these factors have no legislative basis, they nonetheless provide a useful focus in reaching a conclusion which comports with the task required by the Act.
The relevant factors in this matter are as follows:
(a)the nature and severity of the offences perpetrated by the Applicant;
(b)would the Applicant have been granted citizenship if the Department then knew of his offending;
(c)did the Applicant plead guilty to the offences and general conduct during the criminal proceedings;
(d)has the Applicant has shown understanding of his offences and due contrition;
(e)the length of time since the offences were committed and since the Applicant’s conviction;
(f)the risk of reoffending;
(g)whether the Applicant has re-established his good character.
Nature and severity of the offences
As previously noted, the Applicant pleaded guilty to three sexual offences involving one his daughters in the period 1987 - 1991. At the time of the first offence the Applicant’s daughter was about 8 years of age, at the time of the second offence she was about 9 years of age and at the time of the third offence she was about 10 years of age. In short, she was a child.
Koppenol J, when sentencing the Applicant, rightly observed that the Applicant’s conduct was “disgraceful” and said that it constituted the “corruption” of his daughter to satisfy his sexual appetite.
There is no doubt that the Applicant’s vile and disgusting behaviour has had an ongoing deleterious impact on his daughter.
The Tribunal was provided with a Victim Impact Statement that was prepared by the Applicant’s daughter at the time the Applicant was convicted. The Victim Impact Statement outlines how at that time, as an adult, the Applicant’s daughter hated herself, was suicidal, was prone to depression and nightmares, frequently engaged in self-harm by cutting herself, suffered from anorexia, thought sex was disgusting and had an inability to trust other people around her children – Exhibit 2 TB1 pp. 1 – 2. In short, the Applicant’s criminal conduct had an entirely negative and life changing impact on his daughter.
Ms Slack drew the Tribunal’s attention to the observations of Member Maguire in CKLL and Minister for Immigration and Border Protection [2019] AATA 6871 (CKLL) in a matter also involving sexual offences involving children:
“[75] It is axiomatic that the Australian public has a strong interest in the welfare and wellbeing of its children of its children
[76] It cannot be in the interests of Australian children for them to be exposed unnecessarily to an avoidable risk, even if that risk is a low one.
[77] Whatever inconvenience or adversity may flow to the applicant and his loved ones from the loss of his citizenship, the public interest in the safety and wellbeing of its children requires that the decision under review be affirmed.”
The Tribunal does not disagree with the summation of the law given by Member Maguire.
There is no question that a person who has been convicted of sexual offences, and particularly sexual offences involving children or other vulnerable people, cannot be said to be a person of good character. The perpetration of sexual offences against children strikes at the very core of our society. Such vile behaviour undermines the social fabric of society, destroys families and often results in the victim of such offending being emotionally crippled for life. In short, the negative personal and social impact of such offending is devastating and can impact on generations of people.
However, the Tribunal, whilst recognising the seriousness of sexual offences per se, must also take into account the severity of the offences.
In Orsorio the applicant was convicted of a series of sexual offences involving his daughter when she was aged between 10 and 13 years of age. Those offences were as follows:
(a)three counts of sexual penetration of a child under the age of 16 years who the applicant knew to be his lineal relative, on unspecified dates between 1 January 1993 and 21 August 1994;
(b)one count of sexual penetration of a child under the age of 16 years, who the applicant knew to be his lineal relative, on or about 23 December 1994;
(c)two counts of sexual penetration of a child under the age of 16 years, who the applicant knew to be his lineal relative, on unspecified dates between 21 August 1994 and 19 May 1996;
(d)one count of indecently dealing with a child under the age of 16 years, who the applicant knew to be his lineal relative, on an unspecified date between 1 January 1993 and 21 August 1994; and
(e)one count of indecently dealing with a child under the age of 16 years, who the applicant knew to be his lineal relative, on an unspecified date between 21 August 1994 and 10 May 1996.
Clearly the offences committed by the applicant in Osorio were both in frequency and severity of a greater magnitude than in this matter.
Even starker were the offences perpetrated by the applicant in TRHL1. The applicant in that matter was convicted of 13 serious sexual offences committed over a 20 year period involving children in his family and was sentenced to 11 years imprisonment. The offences were as follows:
(a)two counts of rape;
(b)two counts of attempted rape;
(c)six counts of indecent assault;
(d)one count of indecency with a child; and
(e)two counts of indecent assault.
The offences were perpetrated on four young girls, aged between 8 and 12.
In Kleeman and Minister for Immigration and Border Protection [2017] AATA 875 (Kleeman) the applicant was sentenced in the New South Wales District Court for five years and five months for the following offences committed on a girl aged about seven or eight years of age who was a close friend of the applicant’s daughter:
(a)one count of indecent assault;
(b)three counts of aggravated sexual intercourse;
(c)one count of indecency towards a person under 10 years of age.
Finally in CKLL the applicant was convicted of sexual offences involving two children (a boy and a girl) who were both aged 10 years. The applicant in that matter was convicted of:
(a)one count of maintaining a sexual relationship with a child under 12 between 1 August 1991 and 13 December 1991; and
(b)11 counts of indecent treatment of a child under 16.
In CKLL the applicant was convicted of crimes committed over some months in 1991 which involved the systematic defilement of two children. The offences were not random or even opportunistic, but frequent, if not brazen.
In Osorio, TRHL1 and Kleeman, the applicants were each convicted of having sexual intercourse with minors. Also in each matter there was a systematic defilement of the victim(s). Whilst in CKLL no sexual intercourse took place, nonetheless the applicant again engaged over an extended period in numerous acts of sexual perversion against two children.
In this matter the offences, whilst serious and vile, were not of the same gravity and not of the same frequency as occurred in Osorio, TRHL, Kleeman and CKLL. This is not to downgrade the seriousness of the offences or in anyway downplay the hurt and damage caused to the Applicant’s daughter. However, it is relevant in reaching a view about the nature and severity of the offences.
There are closer similarities with WBU and Minister for Immigration and Citizenship [2007] AATA 1143; 45 AAR 225 (WBU). The applicant in that matter was convicted of the following offences:
(a)two counts of unlawful and indecent dealing with a child under the age of 13 years by penetrating her vagina with his finger;
(b)two counts of inciting a child to unlawfully and indecently deal with the Applicant by having her masturbate him;
(c)one count of unlawful and indecent assault on a child under the age of 16 years by rubbing her vagina.
The offences took place between November 1986 and December 1987 when the victim was aged between 10 and 11 years. The applicant was aged between 40 and 42 years.
Deputy President Hotop found that at the time the offences were committed and thereafter, the applicant was not a person of good character (WBU at [38]/242 – 243):
“In the present case, having regard to the applicant’s convictions on 8 September 2004, the applicant some 14-15 years before he applied for, and was granted, Australian citizenship, had committed, in 4 separate incidents, 5 sexual offences against his niece (who was then aged 10-11 years) which are very serious and repugnant and grossly incompatible with good character. It is common ground that, at the time of the grant of Australian citizenship to the applicant in May 2002, the Department was unaware of the applicant’s offences (with which he was not charged until June 2002, and of which he was not convicted until September 2004). Clearly, the applicant was not a person of good character in the period when he was engaged in the commission of those offences…”
What is clear, is that despite the Applicant’s criminal behaviour being of less severity than the offences dealt with in the other determinations discussed above, nonetheless at the time of the commission of those offences he was not a person of good character. The offences he committed were totally inconsistent with any way all right minded Australian citizen would expect, and demand, its citizens behave.
As Mr Duncan contended (Supplementary Closing Submissions (SCS) dated 20 July 2020 para 2), character is not immutable, and even those convicted of a serious offence can show they are of good character. This proposition was explicitly recognised by Deputy President Hotop in Osorio when he observed that one issue he had to determine was whether the applicant in that matter who he found was not of good character when citizenship was granted, had subsequently become a person of good character – Osorio at [35]. The question of whether the Applicant in this matter has subsequently become a person of good character is dealt with below.
Would the Applicant have been granted citizenship?
The Respondent contends (Respondent’s Outline of Closing Submissions (ROCS) dated 10 July 2020 paras 34 – 37), and the Tribunal agrees, that if the Applicant’s offences had been known at the of his application for citizenship it is likely that it would have been refused for failing the good character requirements in s 21(2)(h) of the Act.
The Respondent referred to Re Prasad and Minister Assisting the Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 292. However, as Mr Duncan pointed out (SCS para 5), that matter involved an applicant making a false statement in the citizenship application and who was subsequently convicted of an offence for providing false statements. In this matter the Applicant had not been charged or convicted of any offences when he applied for citizenship, and if analogies can be drawn, then the more pertinent authority is WBU. The facts of that matter are somewhat similar to these proceedings. As in this case, the applicant in WBU applied for, and was granted, citizenship some time before his conviction for child sex offences. Deputy President Hotop observed ([39]/243):
“The Tribunal also accepts that he applicant completed the ‘Application for grant of Australian citizenship’ form, which he lodged with the Department on 26 February 2002, truthfully and correctly, and that he did not thereby impede a proper assessment by the Department of his character (cf Prasad, at 301; 530).”
Did the Applicant plead guilty?
Sentencing judges usually take into account whether a person convicted of sexual offences involving children has pleaded guilty, and thus spared the victim(s) the stress of cross-examination and also whether such person has cooperated with the investigating Police. In short has the person minimised the trauma and suffering of his or her victim(s) and manifested in his or her conduct elements that are consistent with good character.
In TRHL1 the applicant pleaded not guilty to the sexual offences he was charged with, and even though he was convicted he continued to maintain his innocence during the Tribunal proceedings (at [45]). The sentencing judge made the following observations (at [13]):
“I have read four victim impact statements taken from your victims. I am not surprised that all of them have difficulty in expressing the life-long impact that your sexual abuse of them has had on them. I watched four women of total integrity giving evidence before this jury. Under pressure to try and recall dates and details that had blurred in their minds not once did any of them try and make things sound better for them by over embellishing their accounts. They found the experience of giving evidence embarrassing and intrusive. However, they were compelling witnesses telling the distressing truth and I am sure that that is why the jury rejected your evidence that they were liars who had colluded together to make a fabricated account against you. This was nothing more than the wriggling of a cowardly man, unable to accept that the past had caught up with him.”
In this matter the Applicant did plead guilty and, as a result, his daughter did not have to go through the indignity of being cross-examined in front of a jury. Nonetheless, the Applicant initially was not co-operative with the Police and did not enter a plea, and, as Ms Slack pointed out during her cross-examination of the Applicant (Tr. 16.6.2020 pp. 20 – 21):
(a)the Applicant did not confess to the Police when he was initially interviewed;
(b)the Applicant, when he first appeared in the Magistrates Court, did not enter a plea;
(c)when the charges were heard at the committal stage, the Applicant’s daughter was cross-examined;
(d)only after the committal stage, and on legal advice, did the Applicant enter a plea of guilty.
The Applicant testified that at all times he accepted the legal advice of his professional advisors. No criticism can be made in such circumstances, for if a person avails themselves of professional advice, it is natural that such advice would be accepted.
The Tribunal notes that the Applicant did not plead guilty at the first opportunity, but also notes that he did plead guilty before the proceedings went to a jury trial, and, it would seem, accepted the professional legal advice that he was given.
Understanding and contrition
The Respondent correctly contends (ROSC para 38) that remorse has long been held to be an indicator of rehabilitation of character in citizenship refusal cases. The Tribunal’s attention was drawn to Shukure and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 63 (Shukure). This was a refusal of citizenship matter where the applicant had been convicted of the offence of an aggravated act of indecency with a person under 16 years of age. The victim was a boy under 10 years of age. The sentencing judge commented that the applicant had not shown any contrition for what he did to the victim. That state of affairs persisted, and Senior Member Allen made the following observations (at [11]):
“Before me the Applicant still denied the essential facts of the offence. Notwithstanding that, part of the Crown’s evidence was the finding of semen consistent with the offender on the complainant and his clothing, in a statement to an officer of the Department of Immigration considering whether his refugee visa should be cancelled following conviction and sentence, the Applicant claimed that all he had [done] was hug the boy. To me he stated all he had done was hug and kiss the child. I am satisfied this evidences a lack of contrition and awareness of the enormity of his crime. To my mind it cannot be claimed on behalf of the Applicant that he has been rehabilitated when he still refuses to acknowledge the facts of his crime.”
In support of the proposition that the Applicant has failed to demonstrate remorse by his actions, the Respondent made the following submissions (ROCS paras 40 – 49):
(a)the Applicant did not admit his wrongdoing to the Police even though this was the cause of the breakdown of his first marriage;
(b)while the Applicant did inform HE of his wrongdoing shortly after they met, the distress he expressed related to the personal consequences of his wrongdoing as distinct from genuine remorse for the suffering he caused his daughter;
(c)while the Applicant ultimately pleaded guilty, this did not occur until after the committal hearing;
(d)the Applicant has not reconciled with his four children and has not written a letter of apology to his daughter;
(e)while the Applicant engages with the CFMA/MTM, there is no evidence that he has engaged in any education or counselling directed at supporting victims of parental sexual abuse;
(f)little weight should be given to lay witness statements that the Applicant has demonstrated significant remorse as none of them detail how he has done so, provided examples or grappled with the lack of remorse shown to his daughter;
(g)the evidence of Bruce Michael was particularly revealing as he expressed doubt the Applicant had committed all of the offences he had pleaded guilty to and generally downplayed the seriousness of the offending. It was suggested that in private, and away from the Tribunal’s view, the Applicant denies or minimises his offending, which in turn is inconsistent with him being genuinely remorseful for his offending;
(h)whilst the statements of several of the Applicant’s supporters refer to the distress caused by the loss of his family and his imprisonment, no reference is made to any remorse for the harm caused to the victim of his offending, namely his daughter;
(i)whilst the Applicant sought counselling for depression, anxiety and suicidal ideations, this only occurred after he was charged and he has never engaged with any treatment targeted to the rehabilitation of sex offenders; and
(j)the offences occurred 30 years ago and the Applicant was released from prison approximately 10 years ago. There has been a considerable period of time for the Applicant to demonstrate remorse to his daughter such that the impact of his crime could potentially be soothed. He has, however, failed to do so and as such the impact of his crimes has not been remedied by the effluxion of time.
In contradistinction, Mr Duncan made the following submissions (SCS paras 7, 9-11):
“7. The Respondent submits that remorse is an indicator of rehabilitation, and the Applicant has not demonstrated sufficient contrition for his offending. We submit that the evidence overwhelmingly indicates that the Applicant is remorseful. The Tribunal heard testimony from a number of witnesses, which was consistent with the written statements provided to the Tribunal; we therefore submit that weight should be given both to testimony and the written statements which both indicate that the Applicant is deeply remorseful. The Applicant’s actions, including his volunteering at the Centre for Men, is further evidence that the Applicant has sought to redeem himself…
9. The Respondent insinuates that the evidence of Bruce Michael indicates that the Applicant denies or minimizes his offending in private. There is no support for this before the Tribunal. While Mr Michael expressed his opinion that the offences may have been ‘expanded’, he did not say that the Applicant himself denied the offences. All other witnesses who gave oral evidence before the Tribunal expressed an understanding of the seriousness of the offences, under aggressive and detailed questioning. We submit that it is not surprising that this understanding varied in detail. We submit that, overall, the evidence of the witnesses overwhelmingly supports a finding that they understood the offences sufficiently well to assess the Applicant’s remorse, his rehabilitation, and his character, and their evidence should therefore be given sufficient weight.
10. The Respondent identifies a prescriptive list of rehabilitation requirements which they say, the Applicant has failed to meet. It is our submission that rehabilitation can take many pathways, and that there is substantial evidence before the Tribunal of the Applicant’s remorse, rehabilitation, participation in counselling, service contributions and lack of re-offending, which the Tribunal could give appropriate weight to, to find that the Applicant is now of good character.
11. The Respondent suggests that the Applicant has not demonstrated his remorse over the past 30 years, however, the evidence before the Tribunal indicates that the Applicant feels a deep sense of remorse and guilt for his past behaviour. This, considered together with the fact that he has not re-offended in approximately 30 years, is, we submit, the strongest possible evidence that the Applicant has rehabilitated.”

In ascertaining whether a person has exhibited understanding and contrition, an important starting point is the sentencing remarks of the trial judge when such person was convicted of the offences that has resulted in the Minister revoking citizenship.
In this matter Koppenol J made the following observations – Exhibit 2 TB2 p. 10:
“I accept Mr MacSporran’s submissions that the passage of time which has elapsed since these offences occurred has enabled you to demonstrate, and you have demonstrated, a significant element of rehabilitation.”
Before turning to the evidence of the Applicant and his wife, it is important to deal with the statements and evidence of the many persons who stated and or testified to the good character of the Applicant.
In Shukure Senior Member Allen made these pertinent observations (at [14]):
“Several references were tendered in the Applicant’s favour. None of those referees refers to or address the conviction for indecent assault. As they do not address this important issue they are of limited worth.”
As Senior Member Allen highlights, when the Tribunal is considering statements and testimony of persons who speak on behalf of an applicant who they say has expressed contrition or undergone rehabilitation, that point of view must logically be founded on an understanding of that applicant’s history. Importantly, statement about a person’s character must necessarily be predicated on an understanding of that person’s history. A reference of good character which is devoid of any knowledge of a person’s criminal history is a reference which is of limited value when evaluating good character.
Attention should first be given to the statement provided by Dr Beaumont as well as his testimony. Dr Beaumont stated that he attended the District Court when the Applicant was sentenced, and therefore knew the nature of the offences he committed. In addition, Dr Beaumont visited the Applicant whilst he was imprisoned and has kept in contact with him since – Exhibit 1 PT7 p. 48.
In his statement of 5 December 2017 Dr Beaumont made the following observations – Exhibit 1 PT7 p. 48:
“[NPRT] has taken full responsibility for his actions, voluntarily commencing counselling and remained committed to the rehabilitation process right up until his imprisonment…
From the early stages [NPRT] appears to have shown genuine remorse for his actions. He has never been dismissive of the serious nature of the offences…”.
The Tribunal also had the benefit of receiving oral testimony from Dr Beaumont. The following exchange occurred between Mr Duncan and Dr Beaumont – Tr. 17.6.2020 p. 90:
“And you say in that statement that NPRT has taken full responsibility for his actions. Can you describe how he’s done that?---Okay, yes, I’ve reflected on that since the letter and I guess that brought me back to when I first met NPRT in the counselling setting and then when NPRT went to court and I attended court on his sentencing. NPRT didn’t shy away from pleading guilty from my memory of it. So NPRT has never from my perspective wanted to diminish blame or responsibility. He’s taken it very hard, very personally. NPRT hasn’t displayed many of the attributes I’ve seen in other persons that I’ve dealt with on similar child sex charges and other related matters. From my perspective I’ve not seen NPRT shy away from it or dismiss any of what went on and took the guilty plea and served his time. That’s what I’d say about that.”
Dr Beaumont in both his statement and testimony also referred to the Applicant’s active volunteering for various causes, including assisting older men struggling with mental health issues.
The Tribunal found Dr Beaumont to be a witness of credit and his testimony was direct, unemotional and convincing. Insofar as Dr Beaumont is an experienced counsellor and has dealt with other child sex offenders, his views on the remorse and rehabilitation of the Applicant are of assistance. It is also pertinent that Dr Beaumont was fully aware of the offences committed by the Applicant and was present in the District Court when he was sentenced.
The Tribunal also was provided with a statement dated 9 December 2017 from Pastor Robert Jones who has known the Applicant for more than eight years, mostly in his capacity as Chief Executive Officer of the CFMA. Pastor Jones also testified on 17 June 2020.
It became apparent during the cross-examination of Pastor Jones by Ms Slack that although he was aware of “misconduct in the family” and the Applicant was charged with sexual offences involving his daughter he didn’t know “the nitty gritty” and testified that it was not his “part to do that” – Tr. 17.6.2020 p. 97.
In these circumstances, the Tribunal found Pastor Jones’ evidence to be of little assistance in evaluating the issues of understanding and contrition.
The Tribunal also had the benefit of receiving a statement from, and hearing testimony given, by Ms Fionnuala Smyth, who practised as a specialist child protection lawyer in the United Kingdom for approximately 14 years and was involved continuously in cases involving sexual offences against children.
Again, under cross-examination Ms Smyth testified that she had only a limited knowledge of the Applicant’s offending. The follow exchange occurred between Ms Slack and Ms Smyth – Tr. 17.6.2020 p. 68:
“And what do you know of the offences?---I just know that they are offences against children. And it’s within NPRT’s family. And I have never asked NPRT for any more detail.
So you don’t know the particulars of the offences?---Well, no I don’t know particulars. I only know they were serious enough to merit the prison sentence he received. The prosecution and the sentence.
And you don’t know how many counts he was convicted of?---No.”
Ms Smyth testified that she had been a child protection lawyer for many years and was the chief sexual abuse prosecutor and in that role had interviewed and cross-examined 1,000 psychologists and psychiatrists. In short, Ms Smyth is a very experienced lawyer in the field of prosecuting child sexual abuse.
Ms Smyth has only known the Applicant since 2014, and whilst she is of the view that he is not at risk of re-offending and is of good character, a close reading of her statement and testimony discloses that she does not address the issues of understanding and contrition. As such, that aspect of Ms Symth’s evidence is of limited assistance to the Tribunal.
The Tribunal also received evidence from various friends of the Applicant who attested to his good character.
Mr Robert Aldred, a professional social worker, who has known the Applicant since approximately 2013 provided a statement dated 29 November 2017 wherein he outlined why he believed the Applicant is of good character. Whilst there is no issue with the fulsome praise bestowed on the Applicant by Mr Aldred, when he was cross-examined by Ms Slack he testified that he knew that the Applicant had pleaded guilty to three counts of sexual abuse against his children. However, Mr Aldred did not know the details of the offences and nowhere in his evidence does he address the issue of contrition. Again little weight can be placed on this aspect of Mr Aldred’s evidence.
Statements and testimony in support of the Applicant were provided by Mr Bruce Michael and his son Mr Rowan Michael.
Mr Rowan Michael testified (Tr. 17.6.2020 p. 81) that he knew that the Applicant had been charged with three sexual offences relating to “his daughters” but could not be more specific and could not give any further details. Further, he did not give any evidence relating to the Applicant’s contrition for his criminal behaviour.
Mr Bruce Michael, who has known the Applicant since approximately 1997 and has travelled overseas with him and HE, gave impassioned testimony in support of the Applicant. During cross-examination the following exchange occurred between Mr Michael and Ms Slack – Tr. 17.6.2020 pp. 75 – 76:
“You talk about a particular instance, and particular situations, what is your – what do you know of the crimes that he committed?---The only thing that – okay, I know that the offence was against indecent dealing with a person. Okay. And this happened to be a family person.
And are you under the impression that it’s just one instance of indecent dealing?---This is my understanding, however I stand to be corrected.
Yes, I’m just trying to find out what your understanding is. So is it that your understanding is he’s been convicted of one single offence?---My understanding is that whatever the offence was that he was charged with, which I understand was based over a number of years, okay, from 1987 to whatever date it was in 1990. However, with all due respect, I find that there are sometimes when people are charged with things, that the charges sort of slight expanded in order to get a guilty verdict.
You understand that he pled guilty to the charges?---I do. I also understand that he was advised by his legal team to do this.
Do you doubt that he committed these crimes?---Well I doubt that he – NPRT has told me that he – that ‘he did touch her’. The other allegation – the allegation as actually presented in the actual trial was more than that. So I believe NPRT when he tells me he touched her, but he didn’t do actually what was actually presented in court.”
Okay. So, does he deny – has he denied to you in the past that he caused his seven or eight year old child to masturbate him?---I would say that that’s something that didn’t happen.
And has he said that it hasn’t happened that he caused that seven or eight year old child to masturbate him to the point of ejaculation?---I would say that never happened.
Okay. And what about when the child was 10 years old, he used his fingers to penetrate her vagina. Do you understand that that happened?---I understand that NPRT admitted to me that he touched her. Which I assume may be as you construe.
As I construe – that is put his fingers inside her vagina. Is that what you understand. Or are you denying that or accepting that?---I’m accepting that the concept of touching may have included that, yes.”
Ms Slack, on behalf of the Respondent, contended (ROCS para 46) that this testimony should lead the Tribunal to conclude that in private the Applicant denies or minimises his offending.
The Tribunal does not agree with that proposition. There is no doubt that Mr Michael’s testimony quoted above was unhelpful to the Applicant. It was clear to the Tribunal that Mr Michael passionately believes that the Applicant has been unfairly treated, and he went out of his way to attempt to put the best possible gloss on the Applicant’s offending. In doing so, he attempted to minimise the seriousness of the charges, and insinuated that the Applicant was pressured into pleading guilty by the charges being unfairly “expanded” and on the advice of his legal representatives. There was even an insinuation that the victim of the Applicant’s offending had made up some of the events or had exaggerated them.
However, a fair reading of Mr Michael’s evidence does not support the proposition that his point of view was based on what the Applicant had told him. On the contrary, Mr Michael made it clear that the Applicant admitted that “he did touch her”. Moreover, the suggestion that the charges had been expanded was not, ostensibly, based on any suggestion by the Applicant but was based on Mr Michael’s perspective.
Mr Michael was specifically asked by Ms Slack if his opinion that the Applicant did not force his daughter to masturbate him was based on something that the Applicant had said and Mr Michael testified (Tr. 17.6.2020 p. 75): “I would say it never happened”.
It would seem that the Applicant told Mr Michael that he had “touched” his daughter but did not go into the details of what occurred. Mr Michael, in his attempt to support the Applicant, jumped to conclusions that were not founded on what occurred.
Clearly this part of Mr Michael’s testimony was unhelpful and somewhat troubling, but his clumsy attempts to support the Applicant do not support the proposition that the Applicant in private denies his offending.
The Applicant’s wife (HE) gave the following testimony – Tr. 16.6.2020 pp. 32 – 33:
“When did you first learn of the allegations at that time against him?---[NPRT] and I were becoming quite close, and in May of 1998 he disclosed to me that there had been some allegations from his youngest daughter about some activity, and he described in quite some detail to me what the allegation was, which I found very shocking at the time, and I realised that it caused him a great deal of distress to tell me that, but I realised also that he was very courageous in telling me that and making it clear that if we were to go forward in our relationship, he wanted me to know precisely what had precipitated the breakdown of his first marriage.
And what did you observe in him when he told you that?---I observed that it was a very difficult disclosure for him and he was deeply distressed. He was deeply distressed about his family, about the loss of his family, about the allegations and about the fact that it had caused the breakup of his marriage, it seemed, and distancing from his family.”
When Mr Duncan asked HE the above questions, he referred to the allegations against the Applicant. In turn, HE responded by also referring to “the allegations”.
The following exchange occurred between Ms Slack and HE – Tr. 16.6.2020 p. 38:
“Thank you, and you accept that your husband did actually commit the crimes that he pleaded guilty to, don’t you?---Yes.
And so when you talk in paragraph…3 of your statement, you use the words ‘allegations’. They arose from allegations?---M’mm.
They’re no longer allegations, are they? They’re facts that were pled guilty to?---Correct.
And you talked about being made aware of the allegations and the substance of them before Mr NPRT proposed to you. What did he tell you?---He told me that his youngest daughter had alleged that he had inappropriately dealt with her on a trip, and he described the nature of the allegations.
Yes, what was the nature of the allegations, do you know?---That he touched her inappropriately, that she laid on top of him, that he had an erection, that he was very embarrassed.
Well you know he pled guilty to three separate counts, don’t you?--- I do.
So can we take them one at a time perhaps. What do you know about the first offence, which happened…sometime between 1987 and 1989 in Brisbane, not in Rockhampton. There was an allegation and a plea in fact that she had him masturbate her, I believe.
Yes, and that she was seven or eight at the time?---Yes.
And what do you know about the second offence…sometime between June 88 and June 1990?---I believe it was June 1989 to June 1990 was the allegation, that it was a similar offence but it happened not in Brisbane. In Rockhampton, I believe.
And the third offence?---That it was of a more serious nature and it occurred In her bedroom. There was kissing and some sort of penetration into her vagina with his finger was the offence, I believe.”
Having observed HE give the above testimony, the Tribunal formed the view that she was genuine in her stated belief that the Applicant had admitted to the offences he pleaded guilty to and expressed remorse for his actions. His remorse, as explained by HE, centred not only about “his family” but also the breakdown of his marriage and the alienation of his family. In short, the Applicant expressed remorse that his actions had resulted in the destruction of his family. This could be interpreted, as Ms Slack contends, as a self-centred reaction, or it could be interpreted as the expressed remorse of a man who through his criminal actions caused grief, hurt, pain and humiliation to his family with all involved being damaged in the process. Having listened to HE give evidence, the Tribunal is of the opinion that the latter interpretation is the preferable one.
The Applicant was extensively cross-examined by Ms Slack. Ms Slack, quite appropriately, asked a series of questions about each of the offences, the Applicant’s behaviour thereafter, the fact that he did not initially plead guilty, the emotional and physical consequences of his crimes on his daughter and that he did not undergo sex offender therapy whilst he was imprisoned.
It was clear to the Tribunal that the Applicant did not attempt to minimise his criminality under cross-examination. He did not deny that he had committed the offences he pleaded guilty to, and pointed out that throughout the criminal law process he acted on the advice of his Counsel, who the Tribunal observes is a highly experienced and very well respected barrister. The Applicant also explained that he had not attempted to contact any members of his family, including the victim of his criminal transgressions, on the specific advice of his legal advisors. Again, this course of action is understandable from a legal perspective, but carries with it attendant negative consequences for both the Applicant and his estranged family.
Overall, the Tribunal has formed the view that the Applicant is very remorseful for his criminal transgressions. His contrition may have been manifested in different ways, as Ms Slack quite correctly pointed out, but it is tolerably clear that the Applicant was and is remorseful.
Length of time since the commission of the offences and conviction
It is now nearly three decades since the commission of the offences and 12 years since the Applicant was convicted and imprisoned. The Tribunal has no evidence before it that the Applicant committed any other criminal offences either in the United Kingdom or Australia.
The Tribunal has been presented with evidence that the Applicant was continuously employed until his retirement, and since that time has given much to society through his voluntary work with charitable institutions.
In short, the Tribunal has been presented with no evidence that at any time in the past 28 years that the Applicant has committed any criminal transgressions. Indeed, on the contrary, all of the evidence suggests he has been a productive member of the community.
Risk of reoffending
Mr Duncan contended (SCS para 12) that as the revocation of citizenship does not result in the removal of a person from Australia children are not protected by such a result and that consideration of the risk of reoffending is therefore irrelevant.
The Tribunal does not agree with this submission. Whilst revocation of citizenship does not automatically result in a person being deported from Australia, nonetheless it does result in such a person being restricted from international travel, and places the person at risk of revocation of their visa. The revocation of citizenship is a serious and life changing decision and places an ex-citizen in a precarious situation.
It is the case that revocation of citizenship does not result in a person being immediately removed from Australia, and, in theory, if such a person posed a risk to the community, then the revocation of citizenship provides no immediate protection for the community. However, it is not correct to contend that either the Minister or the Tribunal should ignore the risk of reoffending when considering whether citizenship should be revoked. To ignore recidivism as a relevant consideration would be counter-intuitive and incorrect.
The Tribunal was presented with numerous statements from friends of the Applicant who were of the opinion that he posed little or no risk to the community and was unlikely to reoffend:
(a)Terry Fitzpatrick and Peter Kennedy, 5 December 2017, Exhibit 1 PT7 p. 62;
(b)Glenda Bryant, 12 December 2017, Exhibit 1 PT7 pp. 66- 67;
(c)Peter and Angela May, 11 December 2017, Exhibit 1 PT7 p. 70; and
(d)Jennifer Hogue, 15 January 2018, Exhibit 1 PT7 p. 76.
As Ms Slack, on behalf of the Respondent, submitted (ROCS para 53) none of these persons was called to give evidence and none gave an explanation in their statement as to how they were qualified to give an assessment of the risk of the Applicant reoffending. The Tribunal does not doubt their sincerity or question their strongly held opinions, but their views on the risk of the Applicant reoffending can only be given very little weight.

More weight can be given to the statement of the Applicant’s treating General Practitioner of 15 years, Dr Susan Byth. In her brief statement of 6 December 2017 Dr Byth said – Exhibit 1 PT7 p. 61:
“His likelihood of reoffending is extremely small, and I do not see him to be a risk to others.”
Dr Byth was not called to give evidence and she did not explain in her statement why she had formed this view. While Ms Slack submitted (ROCS para 52) that no weight should be given to the statement of Dr Byth, the Tribunal has taken it into account. Clearly Dr Byth, having treated the Applicant for 15 years, is in a good position to form a view as to his character. On the other hand, she is not a psychiatrist or a psychologist. In these circumstances the Tribunal ascribes little weight to the views of Dr Byth.
The Tribunal was also provided with a statement dated 29 November 2017 from Ms Dorothy Aldred, a professional social worker – Exhibit 1 PT7 pp. 52 – 53. Ms Aldred had known the Applicant for four years at the time she made her statement. She attested to the Applicant’s good character and made the following assertion – Exhibit 1 PT7 p. 53:
“In no way is he considered to be a risk to others of any age or gender.”
Again, Ms Aldred was not called to give evidence and was therefore not able to be questioned on how she formed her views about the risk posed by the Applicant. As a professional social worker, Ms Aldred is in a good position to form a dispassionate view about the character of persons she associates with. However, she is not a psychiatrist or a psychologist and her friendship with the Applicant would, no doubt, colour her professional judgment. In these circumstances the Tribunal gives little weight to the views of Ms Aldred with respect to the Applicant’s risk of reoffending.
To sum up, the Tribunal was presented with numerous statements from friends and associates of the Applicant who attested to his good character and all of whom regard him as a model citizen who poses little or no risk to the community. Unfortunately, none of these persons appeared before the Tribunal and their opinions of the Applicant were not tested by cross-examination. Further, none of these persons are qualified to give a professional opinion of the risk of the Applicant reoffending. In these circumstances little weight can be given to these statements. However, the Tribunal does note that the Applicant has a broad support base from people who have known him for some time and, in each case, are persons who are engaged in community or religious activities and are, ostensibly, persons of good character. The Tribunal has no reason to doubt the sincerity of these persons or their deeply held belief that the Applicant is a person of good character.
Ms Slack, on behalf of the Respondent, submitted (ROCS para 51) that the Applicant’s own family consider the Applicant is at risk of reoffending because of the protections they have put in place so that his wife’s grandchildren are never alone with him.
HE in her statement of 8 December 2017 said – Exhibit 1 PT7 p. 58:
“Throughout the years since his conviction [NPRT] has never been alone with any of these children nor to my knowledge with any other child. Rather, [NPRT] always maintains distance with any children with whom he may be in contact. I believe he does this to avoid any possible misunderstanding or unwarranted accusations. Because of this consistent responsible behaviour, I do not consider [NPRT] at risk of re-offending.”
Ms Slack also referred to the testimony of TD, one of HE’s two sons, and the Applicant’s stepson. TD is the father of three young children, and he gave this testimony about the interaction of the Applicant with his children – Tr. 17.6.2020 p. 54:
“That’s all right. Well, do you recall in your statement that you say you have three children under the age of 10. The statement was written in December 2017, so they must be a couple of years older now?---Yes.
And you say you trust him to be around them. You don’t say that you trust NPRT to be alone with your children. Is that because you don’t trust him to be alone with them?---No. So, my wife works with Child Protection in Ipswich Hospital. So, she said that, you know, with his convictions, she’s not comfortable to leave them alone with him. But that, kind of, never comes up, because we’re always all together anyway.
Yes sure?---It’s not like I would go – I would go to him for babysitting, or anything random like that.
Sorry, did you say you wouldn’t go to him for anything random?---Probably not. But – probably not, but more because of the distance, rather than not trusting him.
Yes. Although your wife does have this policy, it seems, from her experience at work?---Yes.”
HE’s other son, RD is the father of two young girls. The following questions were put to RD by Ms Slack about the interaction of RD’s daughters with the Applicant – Tr. 17.6.2020 pp. 59 – 60:
“…You say in the third last paragraph of your statement – you’re talking about the fact that you have two daughters?---That’s correct.
At the time of your statement, which, as you say, was a long time ago, December 2017, they were 11 and 9?---That’s correct.
So a couple of years older than that now?---That’s correct, that’s correct.
And you talk about the fact that your brother has three children?---That’s correct.
And you say that:
He is loving and caring towards them, all with appropriate boundaries always in place.
?---That’s correct.
What do you mean, ‘appropriate boundaries always in place’?---Well, I mean, due to, you know, the history of what, what has occurred previously. I mean, we all interact as a family dynamic as a group. I mean, the four – well it’s a dual – NPRT’s never really alone with the children and that has a dual purpose in the fact that it’s like – first of all, I mean, it makes everything transparent. If there’s no, if there’s no – if there’s no instance where something could be seen as untoward. Whether – it actually – it actually protects NPRT, as much as it protects the children, to be perfectly honest, in that sense. Because it allows – it allows everyone to work with a sense of transparency.
And so just to be clear, you say that he’s never alone with your children?---No, not that – not – I mean, it’s not something that’s like a stringently, like – it’s not – the children are quite independent within themselves, and quite – they’re not, they’re not vulnerable in any way. So, it just – it just – I don’t know how to describe it, sorry. WE just – we just, sort of, all interact in a group environment, if that makes sense. Is that?”
Mr Duncan then asked the following Question – Tr. 17.6.2020 p.60:
“…[RD], you talked about the appropriate boundaries with Ms Slack. Does NPRT contribute to those boundaries?---Oh, of course. That’s a – that’s a discussion. Like I said, those boundaries are a matter of protecting NPRT as much as they are of protecting the children. The – that just allows – within those boundaries, that just allows that there’s no grey areas and there’s no – no one can ever be accused of anything if there’s no potential, like – if there’s no potential for anything to happen. It just – it just means that everyone – when everything is transparent, then there is no potential for incident, or, more likely – I mean it’s not even that, it’s more of a sense of no one can be accused of anything that can never happen. There’s no opportunity for an accusation – no opportunity for anything in that sense….”
Of particular interest to the Tribunal was the statement and testimony of Ms Smyth. In her statement of 4 December 2017 she made the following observations – Exhibit 1 PT7 pp. 54 – 55:
“Several times over the years my son and I have been included in celebrations hosted by [HE] and [NPRT], in particular at Christmas, Easter and Mother’s day. On these occasions we met [HE’s] sons and grandchildren and saw [NPRT] within a family setting where his concern for the comfort of others and gentle sense of humour is always evident. At other times I would be present when [HE’s] grandchildren were visiting, particularly during school holidays. Sometimes [NPRT] and I played card games with them. [NPRT] and [HE] have been married for more than 20 years and all five grandchildren were born since then. All of them know and accept [NPRT] as their ‘Pa’, as [HE’s] husband who has, for them, always been part of their life.
I am aware of the offences to which [NPRT] pleaded guilty. I also note that they were committed more than 25 years ago. I have seen [NPRT] around children at church and around [HE’s] grandchildren. He has demonstrated all of the strategies of a man determined to hold strong boundaries around his conduct with children and to avoid any potential for misunderstanding or difficulty. I have never seen [NPRT] position himself alone with a child. I have never seen [NPRT] come up behind a child. He approaches them by speaking to them and coming up to them to face them but not stand very close. I have never seen [NPRT] sit physically close to children – in fact he has made a point of sitting opposite them when we have been playing games with the grandchildren. He is caring, concerned and appropriately engaged through smiles and conversation but he is not physically affectionate, for example, putting them on his knee or kissing them. [NPRT] has referred them to HE or myself if they have asked, for example, to ‘look at my ear, it hurts’.
I perhaps notice these matters more than some because of my background as a specialist child protection lawyer. I was in practice as such in the UK for 14 years and involved continuously in cases involving sexual offences against children. I am very familiar with the need for external and internal controls of the offender to be strong and resilient to avoid any possibility of future offending. Everything I know about and have observed of [NPRT] leads me to believe that this is the case. I do not consider that he is at risk of reoffending.”
Ms Slack, during cross-examination, questioned Ms Smyth on the number of times she had observed the Applicant interact with his grandchildren – Tr. 17.6.2020 p. 68:
“How many times in total would you say that you’ve spent with NPRT and his grandchildren, in the same room or place?---Specifically with those children, probably in a room – probably half a dozen to a dozen. At gatherings of the premises where we would meet in the gardens, more than that. With other children considerably more than that.”
Ms Smyth testified that the Applicant’s distancing behaviour from children was “part of his external strategies for life.” Tr. 17.6.2020 p. 66.
Mr Duncan made these submissions on the issue of reoffending –(SCS para 13):
“Further, the Respondent infers this risk (in part) from the boundaries the Applicant has put in place around his interaction with children, which the Respondent contends would not be necessary if the Applicant did not pose a risk. These boundaries are not evidence of risk, but rather evidence of the Applicant’s desire to remain transparent in all his interactions with children. The Respondent disregards all the evidence that the Applicant is low risk, including the opinions of Dr Byth and the Applicant’s friends and family, and the fact that the Applicant has not reoffended in some 30 years. There has been a very significant elapse of time since the Applicant offended, during which the Applicant has not re-offended. This elapse of time is compelling evidence that the Applicant now presents a vey low risk. Therefore, we submit that even if risk was a relevant consideration, the evidence indicates that the Applicant does not pose a risk.”
The preponderance of evidence before the Tribunal is consistent with the above contentions of Mr Duncan.
One of the most durable indicators of whether a person who has committed a criminal offence has been rehabilitated and is unlikely to any transgress, is the manner in which that person has behaved over a lengthy period of time. All of the evidence presented to the Tribunal suggests that the Applicant has, over the past 25 years, lived the life of a law-abiding citizen who has undertaken significant amounts of unpaid community work both in Australia and overseas. The Applicant’s family and friends are unanimous in stating that the Applicant has been a good and generous husband, father, grandfather, friend and associate.
Whilst the Tribunal has not be presented with any psychiatric reports or the results of psychometric testing by qualified psychologists, nonetheless the testimony of Ms Smyth, a child protection lawyer of many years experience, was particularly telling and compelling.
Further, the Tribunal does not accept that the social distancing the Applicant has adopted when interacting with children is an indicator that he poses any risk, but, rather, as Ms Smyth opined, part of the Applicant’s external strategies to protect himself. Indeed, the fact that the Applicant has been as careful as he has, suggests to the Tribunal that he is keen to avoid any suggestion of improper behaviour. In short, the social distancing practised by the Applicant is an indicator that he has learnt from his past transgressions and is desirous of being, as Mr Duncan contended, transparent in all of his interactions with children.
In conclusion, the evidence presented to the Tribunal supports the proposition that the Applicant poses only a low risk of reoffending.
Has the Applicant re-established his good character?
It has long been recognised that a person who, because of their criminal transgressions, is of bad character, can, nevertheless, reform themselves such that they re-establish their good character- see Osorio at [37] – [39]. One of the key goals of the criminal justice system is the successful rehabilitation of criminals. This goal is not motivated by altruism, but from the utilitarian objective of maximising that person’s potential to benefit society and minimising the risk that such a person would otherwise pose to the healthy functioning of the body politic.
There are instances where an offence, or course of conduct, is so serious and so reprehensible that irrespective of a person’s subsequent behaviour, a tribunal of fact would find that it indelibly colours a person’s character such that it is not possible to re-establish good character – see Re Davis (1947) 75 CLR 409 at 426 per Dixon J (as he then was).
Counting against the Applicant is that he has not participated in any sex offender treatment programs or had the benefit of psychiatric treatment and oversight.
On the other hand it is the case that the Applicant has led a law abiding life since the commission of his crimes, has demonstrated a strong work ethic, has engaged in numerous community activities in Australia and overseas, has been a regular church goer, has been a devoted husband, stepfather and step grandfather and received numerous statements from friends and associates attesting to his good character.
The Tribunal has recognised that one factor that should be taken into account is whether an applicant has made a positive contribution to the community. In short, does an applicant have a history of good works – see Waraich and Minister for Immigration and Border Protection [2018] AATA 4524 at [57].
The evidence before the Tribunal is that the Applicant and his wife (HE) have, over the past 20 years, worked tirelessly in many community organisations.
The Tribunal was impressed with the evidence given by Mr Jonathan Rodwell who at one time was the National Director of a Christian mission organisation called “Operation Mobilisation”.
Mr Rodwell gave the following testimony – Tr. 16.6.2020 pp. 43 – 44:
“…I met NPRT in that capacity, because he was also a member of Operation Mobilisation. He worked overseas at first and then, he and his wife, [HE], returned to Australia and they worked in Australia under my leadership.
Are you aware of NPRT’s volunteering work then?--- I am. Yes.
Could you just explain to us, give us a description of that?--- Yes, sure. So…I met him around 2002….And in that capacity, he used to teach English for us. We used to have different students that were coming to Australia who were heading out to go and work cross-culturally; many of them from countries like South Korea, didn’t have adequate English to go out to do what they needed to do, which was mainly in an English forum. So, he would come down and help train them in that and then, from Brisbane, they were also helpful in being representatives of our organisation up there and talking about the work we did around the world….
…I found him to be a friendly, affable, humble man. I’ve seen someone who is always willing to help people, to go the extra mile. I mean, when he worked for us for all those years, we didn’t pay him, he used the savings that he and his wife had to come and work for us. So, that’s always to me a measure of someone’s character when they’re prepared to go and do that, because there’s not a lot that would do it. And particularly when they were doing it basically, full-time. I mean, even back then, we would certainly, you know, if we were getting people to teach and to interact with, particularly people from another country, we would do as much due diligence as we could to just, you know, make sure that we were happy with them. And certainly, in my interactions with both NPRT and his wife, I felt very comfortable with them…”
The Tribunal was presented with numerous statements and heard testimony from various persons attested to the many charitable works undertaken by the Applicant over more than two decades.
Ms Smyth, testified to the work that the Applicant and HE performed at the Old Friary – Centre for Christian Spirituality at Kenmore – Tr. 17.6.2020 p. 67:
“…I see NPRT as being reliable. And I see him as doing – I mean the work he did at Brookfield, it wasn’t just for that tiny group, it was – there were community events there. NPRT kept those gardens beautiful, so that people in the neighbourhood could come and sit. NPRT cleaned the chapel, so people in the neighbourhood could come and have a quiet place, even if the weather was bad. I see him as one of those people who work behind the scenes. I believe that – I don’t think I’m that naïve – I think that NPRT’s Christian beliefs kind of require or compel him to have a sense of civic duty. A sense of responsibility to others. And so he will always volunteer to help. That’s part of his character. That desire to help to be in the community. To contribute. And I’ve always seen it. I’ve never seen him lose it.”
Robert Jones gave quite moving testimony about the contribution the Applicant had made to the CFMA – Tr. 17.6.2020 pp. 95 – 96:
“So you’ve seen NPRT’s work in the community?---Yes. Initially because he was so broken it took him some time to even want to do anything because he was smashed but he began to serve. And because he has accountancy background he very quickly became a volunteer at the Centre for Men and he helped us put together the tax deductible gift recipient status of Centre for Men, which is a significant thing for where donors can give their money and get tax deductions. So he got involved with that. And remember when I say ‘Volunteer’ we didn’t – we never had money, so you come and you stary and you get involved and NPRT would be there every day of the week, he’d help out where he needed to but at the same time he was attending the courses and doing the things that we were doing there. So eventually even got more involved with board level and helping them – to do due diligence because part of deductible recipient status is that we had to make sure that the charity adhered to all the rules and there’s a lot of them accounting and justifying and all sorts of stuff NPRT was very much a part of that. He also set up a software system so that we could track donors.”
The Tribunal, then, has been presented with a large body of evidence that the Applicant and his wife have been tireless charity workers. Importantly, the work undertaken by the Applicant is not limited to the period following his imprisonment. All of the work undertaken for Operation Mobilisation was prior to the Applicant’s conviction. In short, the Applicant has exhibited a pattern of conduct over an extended period of time which is consistent with that of a person who has a strong desire to contribute to society.

The Applicant was convicted of serious offences that involved a serious breach of trust to his daughter with severe and ongoing negative impacts on her life. However, as previously noted, even in 2008 when he was sentenced, Koppenol J observed – Exhibit 1 PT7 p. 41:
“I accept Mr MacSporran’s submissions that the passage of time which has elapsed since these offences occurred has enabled you to demonstrate, and you have demonstrated, a significant element of rehabilitation.”
In the twelve years since his Honour made those observations, the Applicant has demonstrated by his deeds, that he has rehabilitated himself. In short, the Tribunal finds that that the Applicant has subsequently become a person of good character.
Conclusion
Ms Slack, on behalf of the Respondent, contended (ROCS para 55) that it was contrary to the public interest for the Applicant to remain an Australian citizen because, cumulatively:
(a)the serious nature of his convictions;
(b)his alleged lack of contrition; and
(c)the absence of any evidence addressing the risk of re-offending.
The Tribunal is required to consider and balance the various competing public interest considerations. On the one hand, it is clear that the Applicant was not a person of good character when he committed the sexual offences against his daughter. Australian citizenship is a precious gift bestowed only on those persons who embrace our national values and wish to contribute to the advancement of our society. The commission of the three sexual offences certainly put the Applicant into the category of an undesirable individual who would not have been granted citizenship if the then Minister knew of his criminal history.
However, the Tribunal cannot perform its task of determining the public interest by defaulting into a time warp of three decades ago. The Tribunal has to determine the public interest as it exists now, and to consider a range of matters that focus, albeit not exclusively, on an applicant’s character and the risks (if any) that such a person may pose to society.
Counting in favour of the Applicant are the following matters:
(a)the lack of any criminal history other than the three sexual offences;
(b)the pleas of guilty;
(c)genuine contrition for his criminal offending;
(d)a long history of solid employment;
(e)decades of unpaid community service;
(f)the unconditional support of his second wife and family and an extensive network of supportive community members.
In this matter, the evidence submitted illustrates that the Applicant has been a constructive member of the community, has been an active member of his faith community, has performed many good deeds over many years and has rehabilitated himself. In short, the public interest has been advanced by the Applicant remaining an Australian citizen.
In these circumstances the Tribunal finds that it would not be contrary to the public interest for the Applicant to remain an Australian citizen.
Exercise of the discretion to revoke the Applicant’s citizenship
As the Tribunal has found that it would not be contrary to the public interest for the Applicant to remain an Australian citizen, the issue of the exercise of the discretion to revoke his citizenship is moot – see TRHL2 at [43] per Gilmour J.
However, if the Tribunal is in error in the public interest finding, consideration will now be given to the exercise of the discretion.
It has been explained on numerous occasions that in determining whether to exercise the discretionary power considerations to which the Tribunal should have regard to include the advantages to the Australian society on the one hand, and the disadvantages or hardship to the Applicant and other persons on the other hand, which would, or would be likely to, result from depriving the Applicant on his Australian citizen – see WBU at 245/[44] per Deputy President Hotop.
Mr Duncan, on behalf of the Applicant, made the following submissions (Closing Submissions (CS) para 15):
“In deciding whether to exercise the discretion, the Tribunal may take into account a range of factors, including those that extend beyond the public interest. We submit that, on balance, the factors weigh against the Tribunal exercising its discretion. Relevant factors include:
(a) Evidence of the Applicant’s current good character and rehabilitation, including:
a.The Applicant’s contributions to his faith community and wider community through volunteering and missionary work over the course of many years;
b.The Applicant’s good work history;
c.The opinions of the Applicant’s family and community that he is a person of good character, as demonstrated by the witness testimony;
d.The lack of any other criminal history; and
e.The fact that the Applicant has served his sentence and parole period without incident, and has demonstrated remorse and rehabilitation, and a desire to redeem himself.
(b) That a very significant amount of time has now elapsed since the offending behaviour and the conviction, during which the Applicant has not reoffended and has actively sought to better himself.
(c) The impact on the Applicant and his family of the uncertainty of an ex-citizen visa. An ex-citizen visa puts the applicant and his family in a much more precarious position with respect to his residence in Australia, and his ability to travel. Although the Applicant can remain in Australia, he cannot travel to visit his elderly mother in the United Kingdom, without losing the right to re-enter Australia. This places him in the impossible position of choosing between his mother and his family in Australia, and hypotheticals about the impact of COVID-19 on the Applicant’s travel prospects do not change this fundamental reality.
(d) Further, the common law rules of natural justice and the code of procedure set out in the Migration Act 1958 (Cth) does not apply to the Minister’s decision to cancel an ex-citizen visa, and consequently the Minister is not required to give notice of an intention to cancel the Applicant’s visa. This places the Applicant in a state of significant uncertainty that is unsustainable in the long term. It has already caused the Applicant and his family considerable distress, and will continue to cause them distress in the future is [sic] the situation continues. Many witnesses testified to the impact of this uncertainty on the applicant and his family’s wellbeing.
(e) Many witnesses raised their perception of the revocation process as an injustice, that further punishes the Applicant despite that he has served his sentence and done everything in his power to redeem himself.”
Ms Slack, on behalf of the Respondent, contended (ROCS para 64) that the advantages to Australian society by revoking the Applicant’s citizenship were considerable, and included:
(a)removal of citizenship which may not have been granted had the Department been aware of the Applicant’s serious offending at the time he applied for citizenship; and
(b)likely deterrence of other applicant’s or proposed applicants for citizenship from committing offences, or, having committed offences, from failing to inform the Department thereof.
The Tribunal accepts that these are valid considerations, and notes that other Tribunal Members in the past have taken these considerations into account when determining to exercise the discretion – see WBU at 245/[45] and Osorio at [42]. However, the Tribunal does not accept that the deterrence factor would be of significant weight, as the Tribunal has been presented with no evidence to suggest that the exercise of the discretion in these matters is a matter of public knowledge. In short, deterrence can only be effective if potential applicants for citizenship have knowledge of how the discretion has been exercised and what factors have been relied upon.
The Tribunal is required to take into account as a mandatory relevant consideration the implications of the grant of an ex-citizen visa under s 35(3) of the Act – Minister for Immigration and Border Protection v Egan [2018] FCAFC 169 at [16] – [17] (Egan). As the Full Court explained in Egan the grant of such a visa does not result in the automatic removal of an ex-citizen from Australia - [22] – [25]. Indeed, on the contrary, if automatic removal from Australia flowed from the revocation of citizenship no visa, of whatever description, would issue to an ex-citizen.
However, what was also explained during the Hearing, is that if an ex-citizen choses to travel overseas, then there is at least a likelihood the ex-citizen will not permitted to re-enter Australia. This scenario has particular relevance to the Applicant in this matter.
The Tribunal was presented with statements and testimony about the close relationship that the Applicant has with his elderly mother who lives in England.
Both the Applicant and HE testified about the anguish that the Applicant is suffering because of his inability to visit his mother before her death without being deprived re-entry into Australia. This anguish has not only afflicted the Applicant but has, and is, causing HE and her immediate family ongoing emotional distress. Should the Applicant visit his mother in England, his likely consequent inability to return to live in Australia may result in the breakup of his marriage and loss of contact with his stepchildren and step grandchildren.
Ms Slack pointed out (ROCS paras 67 – 68) that the Applicant visited his mother in England in September 2019 when he knew he may not be able to return and had an opportunity to say goodbye to her. Further as the Applicant maintains contact by weekly Facetime calls, he is not thereby deprived of a relationship with his mother.
A number of persons gave statements and testified about the very close relationship the Applicant has with his mother. Ms Smyth gave the following testimony – Tr. 17.6.2020 p. 66:
“You talked about NPRT’s relationship – interactions with his mother. What do you think his relationship with his mother is like?---Well, it’s very warm. She is very excited to see h im when he comes online. I know that they speak every week, so far as I know. They certainly spoke on the Sunday evenings when I was there. She’s very interested in his life. She asks him. He asks her. We’ve talked a lot about how do you care for an elderly parent at a distance. There’s a price to pay for being an immigrant, when none of your family come with you. And I felt that I saw in NPART’s interaction with his mother some of that, ‘Let’s make the most of all the time we’ve got.’ And, she was capable – very able to converse, but clearly getting more frail. And NPRT did say that worried him. I thought they were close, actually, for a son and mother. I thought they were very close.
And what do you think the impact on that relationship would be of NPRT’s citizenship revocation?---Well, as I understand it, NPRT would have to make a choice. Not to go back and see her again or go back and never return to Australia. That’s how I understand it….With NPRT I know that it grieves him, it grieves him dreadfully…I think [NPRT’s mother] would be heartbroken. I know when I spoke to her -I think [HE] and NPRT went back last year – and she was so excited and so looking forward to it. And I think it would have a dreadful impact on her if he felt unable to go back.”
The Applicant’s wife, HE, testified about the impact the loss of citizenship and consequent negative implications for travelling to England was having on her and her family – Tr. 16.6.2020 pp. 36 – 37:
“…[NPRT’s] very committed and devoted to his mother, as is [NPRT’s] mother to him, and throughout all of the charges and proceedings, she has remained steadfast in her support for him. She came to Australia in 2006 t make a deposition to his lawyer that she would support him and to refute the charges that she felt were being levelled against him, and she hasn’t ever waivered in her support. We haven’t told her about these current – this current matter, because she’s 97 and a half, and we just didn’t think it was fair for her to be suffering from this kind of grief, but every Friday night it’s exactly the same thing in our household, that [NPRT] and his mum would have a Facetime conversation. And it’s lovely to see that, and we went to see her in August last year, 2019, and spend a month with her to assist her as she’s still living in her own home..
Okay, thank you. What impact do you think it will have on [NPRT] and you if he did lose his citizenship, well if he didn’t get his citizenship back?---If his citizenship revocation stands, I believe it would put [NPRT] in an awkward situation with a lot of doubt, and he already suffers quite significantly from anxiety based depression. The uncertainty of not having a clear way t olive confidently, I believe that would affect his ability to continue to be a positive contributing member of the community. The course of that uncertainty, I think he’d be very torn with needing to go and visit his mother and wanting to support her, particularly her, you know, she’s aiming for making – making it to 100. She’s pretty determined about that. But she is elderly, and you now, fierce and courageous, but she is elderly, so that would be hard. And I have to face the choice of between going to live in England with [NPRT] because he can’t live here and being separated from my sons and my grandchildren, I think that will be a very difficult decision for me, and I think it will be very difficult for [NPRT] to face the ramifications of that too.”
It is ironic that the cancellation of the Applicant’s citizenship has not resulted in his removal from Australia and if he posed any risk to society, that risk has not been ameliorated by the revocation decision. It is certainly the case that the Minister can at any time cancel an ex-citizen visa on character grounds. However, whether such a course of action would ever be actioned is a matter of speculation. In the meantime the Applicant would have to live with a Sword of Damocles hanging over his head, with consequent negative implications for both him and his family.
It is unfortunate that if the Applicant travelled to England either to care for his aged mother or to attend her funeral, those acts of goodwill would result in him, in all likelihood, not being able to return to his wife and stepfamily. This is a cruel scenario, and to the detriment of all concerned.
Revocation of citizenship is not a punitive measure. It is designed to advance the public interest and not to impose a second punishment on a person who has already paid for their crimes.
In this matter, the Tribunal agrees with the submissions of Mr Duncan which were quoted above.
The Applicant has served his sentence, has rehabilitated himself, has contributed to society, is a loving husband, stepfather and step grandfather. The revocation of his citizenship will be potentially destructive of the Applicant’s family and will cause grief to his elderly mother. In short, the Tribunal cannot see any obvious good arising from the revocation of the Applicant’s citizenship. Indeed, as HE testified, the Applicant is already a sick man, and the ongoing stress and uncertainty following from citizenship revocation will only weaken him further and negatively impact on his community activities.
For the reasons outlined above, the Tribunal is satisfied that it should not exercise its discretion to revoke the Applicant’s citizenship.
DECISION
The reviewable decision is set aside and substituted with a decision not to revoke the Applicant’s citizenship pursuant to section 34 of the Australian Citizenship Act 2007.

I certify that the preceding 207 (two-hundred and seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

................................[SGD]...................................
Associate
Dated: 18 September 2020

Dates of hearing: 16 and 17 June 2020

Date final submissions received: 21 July 2020

Advocate for the Applicant: Mr P Duncan, Newland Chase

Counsel for the Respondent: Ms K Slack

Solicitors for the Respondent: Sparke Helmore Lawyers

Dates of hearing:	16 and 17 June 2020
Date final submissions received:	21 July 2020
Advocate for the Applicant:	Mr P Duncan, Newland Chase
Counsel for the Respondent:	Ms K Slack
Solicitors for the Respondent:	Sparke Helmore Lawyers