Panuve and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2022] AATA 1321
•20 May 2022
Panuve and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 1321 (20 May 2022)
Division:GENERAL DIVISION
File Number(s): 2019/1050
Re:Mr Sesetaia Panuve
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Ms A E Burke, AO Member
Date: 20 May 2022
Place:Melbourne
The Tribunal sets aside the decision of the delegate, dated 31 January 2019, refusing Mr Panuve’s application for Australian citizenship by conferral, and remits the matter to the Minister for reconsideration in accordance with a Direction from the Tribunal, pursuant to
section 43(1)(c)(ii) of the AAT Act, that the Applicant is a person of good character for the purposes of the Act.........................[sgd]................................................
Ms A E Burke, AO Member
Catchwords
CITIZENSHIP – refusal of approval for Australian citizenship by conferral – whether the applicant is not of good character – serious offending – whether sufficient time has elapsed since last offending – whether applicant has demonstrated remorse and understanding of offending – whether applicant has demonstrated enduring moral qualities – decision under review set aside
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)Sentencing Act 1991 (Vic)
Cases
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Dargahi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4561
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Sui and Minister for Immigration and Citizenship [2008] AATA 1062
Zheng v Minister for Immigration and Citizenship [2011] AATA 304Secondary Materials
Department of Immigration and Border Protection, Citizenship Policy (2019)Department of Immigration and Border Protection, Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (2021)
REASONS FOR DECISION
Ms A E Burke, AO Member
20 May 2022
Mr Sesetaia Panuve is a Tongan citizen who arrived in Australia from New Zealand under the alias Lee Haino on 28 December 1978. Mr Panuve currently holds a Subclass 155 Visa granted on 24 June 2015. Mr Panuve applied for Australian citizenship by conferral on 24 February 2015.
On 3 December 2018 a delegate of the Minister advised Mr Panuve his application for citizenship was being assessed but his application may be refused because he may not meet the legal requirements of the Australian Citizenship Act 2007 (the Act) to be of ‘good character’, due to his criminal record. Mr Panuve was provided with an opportunity to comment.
On 24 January 2019, Mr Panuve provided his response, including a statutory declaration and several character references.
On 31 January 2019, under section 24 of the Act, a delegate of the Minister refused Mr Panuve’s application for citizenship on the basis that he was not of good character. The decision of the delegate states:
Citizenship policy states that a decision maker needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time. The amount of time considered to be ‘lasting’ or ‘enduring’ depends on the merits of each case.
Information held by the department regarding your criminal record in Australia indicates that you were first found guilty of an offence on 12 April 1979 and that you have been found guilty of a number of other offences during the period 1979 – 2001.
I am satisfied that you had demonstrated an ongoing pattern of behaviour for a prolonged period which would suggest that you are not of good character. I give this considerable weight in my assessment of whether you are of good character.
After considering your conduct, one of the factors I have considered is whether you have rehabilitated and made a conscious effort to obey and uphold Australian laws. I note that you have not been found guilty of any offences since 2001. This weighs in favour of you being of good character. I give this factor some weight in my assessment of whether you are of good character.
Under citizenship policy the applicant’s present reputation in the community can also be considered with the provision of referee reports. References from reputable Australians, particularly employers (but not family members), attesting to the applicant’s good character and whether they support the application for citizenship,
can shed light upon the applicant’s character and should acknowledge, where applicable, any offence or other incident and explain why the applicant is nonetheless considered to be of good character. Decision makers are entitled to give substantially more weight to statutory declarations than to other statements.
In the letter sent to you by the Department on 3 December 2018, you were requested to provide character references from reputable Australian citizens attesting to your good character and reputation in the community.
You have provided recent character references from reputable people from the community. Referee Rev Lauleti Tu’inauvai states that he has known you since 1989, and that you continue to be a trusted, respected and responsible member of the tennis friends, Morman Church and the Tongan Community in Melbourne. Rev Lauleti Tu’inauvai states that he is aware that you were found guilty of rape and assault and that you were sentenced to prison on 16th March 1983 and supports your citizenship application.
Referee Rev ‘Isileli Jason Kioa states that he has known you since 1985 and that in the last fifteen years, he has seen you improve in taking responsibilities with the Tongan youth community. He states you are very active in the life of the church and your responsibility in raising your daughter is something to be commended. Rev ‘Isileli Jason Kioa states that he was aware that you were found guilty of rape and assault and was sentenced on 16th March 1983 and that you served your term from 1983-1984.
Your referees acknowledge your offences from 1983 and indicate that they support your application for Australian citizenship. However they do not include the full extent of your criminal record. I give these references some weight in my assessment of whether you are of good character.
….
You have also provided three character references from people in the community including Mr Joe Vella and Mr Leigh Gunn Character references from Mr Joe Vella and Mr Leigh Gunn state that you were a dependable, kind and hard working person. These character referees do not acknowledge your criminal background nor attest to a change in your character since. These character references therefore do not assist in establishing whether you are of good character and I give them little weight in my assessment.
…..
I have considered whether a reasonable amount of time has passed since you were free of any obligation to the court, in order to establish a pattern of good behaviour, which can indicate that a person is of good character. You were last found guilty of an offence in September 2001. I note that a lengthy period of time has elapsed since 2001, during which you have not been found guilty of any further offences. As stated above, however, citizenship policy states that a decision maker needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time. Citizenship policy also notes that the length of this period of time is longer in cases where very significant offences have been committed:
‘If a person has committed a very significant offence (such as taking the life of another person, sexual assault, crimes against children, war crimes, crimes against humanity, genocide) the lasting/enduring period would be much longer, potentially over a period of many years. In such an assessment, the nature of the significant offence is more relevant to whether or not the person is of good character than the period of time since the crime was committed. Thus, it may be extremely difficult for a decision maker to be satisfied that a person is of good character after having committed such offences, even after the passage of many years.’
You had been found guilty of assault and rape, which are very significant offences, and your sentencing of 6 years imprisonment reflects the serious nature of these offences. I also note that you committed a number of other offences in Australia throughout the period from 1979 - 2001, this time frame would be considered a prolonged or enduring period in which you demonstrated a failure to obey the laws of Australia. I find that the significance of your offences and the length of your criminal history outweighs the amount of time that has passed since your last conviction. I give this factor considerable weight in my assessment of whether you are of good character.
ISSUE FOR THE TRIBUNAL
The issue for the Tribunal is whether the Applicant is of good character.
LEGISLATIVE AND POLICY BACKGROUND
Section 21(2) of the Act sets out the general eligibility criteria for a person to become an Australian citizen:
General eligibility
A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister’s decision on the application.
Section 24 of the Act provides, in part:
24 Minister's decision
(1) If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
(1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3),(4),(5),(6),(7)or(8).
Section 25 of the Act provides, in part:
(1) The Minister may, by writing, cancel an approval given to a person under section 24 if:
(a) the person has not become an Australian citizen under section 28; and
(b) either of the following 2 situations apply.
Eligibility criteria not met
(2) The first situation applies if:
(a) the person is covered by subsection 21(2), (3) or (4); and
(b) the Minister is satisfied that, at the time the Minister proposes to cancel the approval, the person is:
(i) not a permanent resident; or
(ii) not likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia; or
(iii) not of good character.
The term ‘good character’ is not defined by the Act. However, guidance is provided by the Department of Immigration and Border Protection’s Citizenship Policy, updated by the Minister in 2019 (the Policy). The stated role of the Policy is to provide guidance on the interpretation of, and the exercise of powers under, the Act and the Australian Citizenship Regulations (2007). Chapter 11 of the Policy provides guidance on the character requirement. Additionally, the Department’s Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (CPI 15), most recently updated in 2021, sets out the policy for assessing good character under the Act.
The Policy notes the Act does not define the term ‘good character’ and makes reference to the definition found by Lee J in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432:
…the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review of subjective public opinion...A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character...Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
The Policy states that ‘enduring moral qualities’ encompasses the following concepts:
·characteristics which have endured over a long period of time
·distinguishing right from wrong
·behaving in an ethical manner, conforming to the rules and values of Australian society.
The Policy also refers to Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8], where Deputy President Breen discussed the role of the character requirement in a citizenship application:
The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home… The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.
The Policy also references Deputy President Forgie’s decision in Zheng v Minister for Immigration and Citizenship [2011] AATA 304 at [120]:
In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do.
To assist decision-makers, the Policy states that a person of good character would generally be expected to exhibit certain characteristics, observing these characteristics should be considered in the light of the facts of the particular case and should not be applied rigidly or inflexibly. The Policy notes that as a general proposition, a person of good character would:
·respect and abide by the law in Australia and other countries
·be honest and financially responsible (for example, pay their taxes, and not be in dishonest receipt of public funds)
·be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:
oproviding false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications
oinvolvement in bogus marriages
oconcealment of convictions that could lead to the cancellation or refusal of a visa or citizenship
oinvolvement in Centrelink or Australian Tax Office fraud
ogiving false names and/or addresses to police
·not be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance)
·not be associated with others who are involved in anti-social or criminal behavior, or others who do not uphold and obey the laws of Australia
·not have evaded immigration control or assisted others to do so, or been involved in the illegal movement of people
·not have committed, been involved with or associated with war crimes, crimes against humanity and/or genocide
·not be the subject of any extradition order or other international arrest warrant
·not be involved in or providing assistance to, or reasonably suspected of being involved in or providing assistance to, terrorist organisations or acts of terrorism overseas or in Australia and
·not be the subject of any verifiable information causing character doubts.
·not be the subject of any extradition order or other international arrest warrant
·not to be violent, involved in illegal drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example multiple and/or repeated instances of recklessness exhibited by negligent or drink driving, excessive speeding or driving without license)
·not associate with others who are involved in anti-social or criminal behaviour, or others who do not uphold and obey the laws of Australia, such as organisations involved in war crimes, criminal gangs, OMCG’s or youth gangs
·not have committed, or been involved in or associated with war crimes, crimes against humanity or genocide
·not to be involved in, terrorist organisations or acts of terrorism overseas or in Australia
The CPI 15 at 3.3 states:
The good character requirement necessitates consideration of an applicant viewed in a holistic way; that is, all aspects of his/her life may be relevant to the consideration of character.
A decision-maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout the time the applicant held a Visa, and during the time the citizenship application was lodged and processed.
Given the significance of the grant of Australian citizenship, the assessment of the applicant’s character is an important component in the Minister’s decision to approve or refuse the applicant citizenship application.
The CPI 15 at 14 states that an officer assessing whether an applicant is of good character should as a general proposition:
·Characterise the nature of any offence or behaviour
·Is the offence serious or minor?
·Did the offence harm other people?
·Who were victims?
·Is there a pattern of behaviour?
·Was it a one off incident?
·Were there extenuating circumstances?
The CPI 15 at 14 also articulates mitigating circumstances:
·Length of time since the offence was committed
·age at time of offence
·behaviour since completing prior sentence or obligation to court
·remorse regarding their offending behaviour
·community support (referee reports etc)
·changes in the life of the applicant. For example relocation away from people who had a negative influence, marriage or de facto relationship, children, treatment for addiction or mental illness.
In weighing the above considerations, the CPI 15 at 14.1 provides further guidance to the decision maker in assessing an applicant’s good character:
What is the length of time since the offence and conviction?
There can be a long delay between the offence and conviction. Each case should be assessed on its merits. Consider the seriousness of the offence, the nature of the offence, whether another person was harmed, and the rehabilitation process. In the case of a serious offence, a significant amount of time may have to pass before a decision-maker could be satisfied that the person is now of good character. In some very serious cases, it may never be possible to be satisfied that the person is of good character.
Has the applicant accepted responsibility and shown remorse for their conduct?
How has the applicant behaved since being released from prison or upon completion of any obligations to a court such as a good behaviour bond?
There is no ‘rule of thumb’ that determines how much time must pass for a person to re-establish good character. Each case must be assessed on its merits.
…
Is there any other evidence that the person is of good character?
Is there evidence of length of employment, stable family life and/or community involvement? These may be indicators of good character.
Applicants may wish to provide references from independent people, like employers, attesting to the applicant’s character.
It is open to decision-makers to contact individuals who have provided a referee report for the applicant.
Decision-makers should not attribute less weight to a character reference merely because the text does not contain an explicit statement of support for the applicant acquiring Australian citizenship, unless the text sets out that it is clearly written for another unrelated purpose.
The CPI 15 makes clear at 12.1 that decision-makers can only act on the basis that verdicts of Australian courts, and the essential factual findings supporting the verdict, are correct. The necessity to act on the basis that the conviction is correct will apply regardless of whether the applicant maintains his or her innocence.
The CPI 15 at 12.1 also outlines what is considered a serious offence which includes crimes of violence such as murder, manslaughter, assault, sexual assault, domestic violence, armed robbery, or negligent or reckless driving occasioning injury or death.
EVIDENCE
The evidence before the Tribunal included two sets of documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, referred to as the ‘T documents’ and the ‘Supplementary T documents.
The following table has been derived from Mr Panuve’s records from a National Criminal Check Result of 1 December 2018:
Court
Date Nature of Offence Sentence Newtown Petty Sessions
12 April 1979 2 Counts Stealing Fine for both counts
Melbourne Supreme Court 16 March 1983 Rape (2 counts)
Assault occasioning actual bodily harm
5 years imprisonment on each count, 4 years on 2nd count concurrent
1-year concurrent imprisonment
Swan Hill Magistrates Court
4 July 1989 Behave in offensive manner public place
Drunk in a public place
Fine
Fine
Prahran
Magistrates Court
8 Dec 1992 Use threatening words in public place
Unlawful Assault
Convicted community-based order for 6 months to perform 125 hours unpaid community work
Elsternwick Magistrates Court
17 June 1993 Unlawful Assault Without conviction adjourned to 16.6.94 Heidelberg
Magistrates Court
22 August 2001 Make threat to kill
Behave in offensive manner public place
Fine with conviction
The reasons for judgment in the Court of Criminal Appeal’s judgement for the 1983 offences, Attorney-General v Lee Haino and Siale Pahulo Kaho [1983] VicSC 71, states at 1-7:
The charges against Haino were that he assaulted MLY thereby occasioning her actual bodily harm, and twice raped her on the same day.
The respondents pleaded not guilty to all counts, and after a trial conducted in the County Court at Mildura, they were convicted on all counts save one.
…
I shall now turn to the facts relating tp the prosecutrix MLY, who as I have already indicated went to the Robinvale Hotel on 11 February and left with the prosecutrix J.
She said that the respondent Haino had offered her a lift home and asked her what she drank. She said that she drank Scotch whiskey. She saw Haino come out of the bottle shop of the hotel with some Scotch whiskey, some rum and some bottles of Coca-Cola. They then got into the car, and she confirmed that the car was being driven very fast and that it hit another car whilst overtaking. She said that she tried to open the door of the car and get out when the car was making a turn, but Haino held her in the car, shut the door and locked it. The car eventually stopped near a picker’s hut and she immediately started walking away, but Haino grabbed her by the arm and told her to sit down on the grass. She made other attempts to leave but every time she got up Haino pulled her down by the arm and held her down. Haino offered the prosecutrix a drink which she declined. Nevertheless, he poured one for her which she tipped out. She kept saying that she wanted to go home and have a shower, but Haino said to her she could have a shower where she was. She made one substantial attempt to run away and ran about twenty yards away, but Haino chased her and grabbed her by the arm, punched her in the mouth and then in the middle of the chest, and her evidence was that she was winded by that attack and doubled up and she was then knocked down to the ground. Haino said, ‘You’re not going anywhere. Just stay here’. The prosecutrix said that she was screaming for help and that Haino ripped her clothes off and held her with one arm using the other hand to remove her clothing. He ripped off her underpants. Haino then pulled his own pants down, according to the prosecutrix, and had sexual intercourse with her. She screamed and tried to get him off, but he told her to stop screaming or he would cut her throat. The prosecutrix was unable to say how long intercourse had lasted because she said that she blacked out during the intercourse and the next thing that she remembered was lying on a bed in what she thought was a picker’s hut. She said she was then naked.
She then gave evidence in support the allegation contained in the sixth count that she had been raped by the respondent Kaho. But there was evidence which in all probability led the jury to have doubts about the identity of the rapist at that point, and that is the count on which Kaho was acquitted. I shall therefore not relate the evidence related to that count.
After that incident, however, she said that Haino got on top of her again and for the second time had intercourse with her. Again she was unable to remember the act of intercourse ceasing. The next recollection that she had was of standing in a shower. Her evidence was that Haino was also in the shower, telling her to wash her body and her hair, and she said that he was washing her as well. She remembered little after that until she was out on the road fully clothed, although she did not remember having dressed herself. She was then able to stop a passing car which drove her back to the Parish’s property.
Mr Panuve provided the following evidence at the hearing in relation to his use of the false name Lee Haino:
(a)He adopted the false name of Lee Haino when he first came to Australia to assist other Tongans to enter Australia. In the 1980’s he could travel to New Zealand from Tonga without a passport, and as a permanent resident of New Zealand, he had been granted a New Zealand passport. He explained that Tongan’s felt they were not able to enter Australia, so he adopted the name Lee Haino in the hope that authorities would believe he was Maori which would allow him to assist his friends to enter Australia.
(b)He advised immigration authorities in about 1985/86 of his real name because he was upset that members of his community had told immigration authorities about his presence in Australia. He decided he was a proud Tongan who had a responsibility to his child, and he was determined to revert to his real name. Mr Panuve accepted at this time that he may be sent back to Tonga because of his name change, but he was not deported.
Mr Panuve provided a statutory declaration dated 24 January 2019 in which he gives an explanation for his convictions. In relation to the 1982 rape offences, he states:
I Sesetaia Palaki Panuve knew a friend from New Zealand name lkanl. To cut the story short, lkanl came from Swan Hill and asked me he needed a hand for 2-3 months of work on a farm. I went with my girlfriend Clorinda Nelson. We met with a few others of his friends in a town near Swan Hill. Early February 1982 we worked for about 3 weeks and moved to Robinvale. We stopped at a farm for 30 minutes to drop off our clothes and then we went to the pub for 2-3 hours. We met 2 ladies and went back for a drink at the farm. Something not good happened. Made police come and take us to the station, and they decided to send 3 of us (Myself, lkanl & Siale) to Mildura police station. They locked us up and told us that the 2 ladies had been raped by us.
lkanl asked the police to let him and myself in the womens lockup. lkanl wanted to talk to me without Siale present. So, they allowed his request. lkanf asked me nicely to go tell the police I did It and to state lkani was never Involved. lkanl says he knows the farm owner and will ask him for loan so he can return to bail us out. We back to work and he run away. I got the other friends they were at the party to witness I still easily got out. I was really thinking looking at him, he repeats you easily got out. Everybody knows you're innocent and I'm not and I'm too old to go to Jail.
I told the police and they took my statement and let him out. I never see him again. My witnesses was overstaying. They were scared of deportation. I told them go as long you all know the truth may God give all of us a happy ending life.
Siale never forgive me for putting myself in a dangerous situation for I will become a father soon. I went to court with Siale and was found guilty we both went to Pentridge jail in Melbourne.
…
The police appealed and my sentence changed. One thing they don't know one minute in jail is still wrong, because I'm Innocent.
This is a very very hard and sad time of my life, because I am innocent, and my daughter just not long was born. I was scared of losing her. I turned to God and asked for his help. I did the time and took the blame. But please let me prove myself. I am Innocent. I am a good father. I will always respect people, women, men and children. I love this country. I obey the laws, support the leaders to show the world that I was born as a good child.
I got out after doing 1 year and 4-5 months. I with my daughter and her mother rented a house and hoped to find happiness. I was confused thinking back on what happened. I was upset, blamed myself for not telling the truth to avoid going to jail. I drank and still ran into trouble.
In relation to the 1982 rape offences, Mr Panuve provided the following evidence at the hearing:
Respondent representative: Mr Panuve, is it right to say from what you’ve just put to the Tribunal that [A] was the one who did the rape of the older woman and he asked you to take the blame?
Mr Panuve: yeah, yeah, yeah
…
Respondent representative: If [A] raped a woman, why were you helping him by saying that you did it? Were you not worried about the fact that he did a serious crime against someone?
Mr Panuve: Like I said to you, I really, really, really hate this … [indistinct]… it’s a bad thing, Like I said, I believe this is a bad thing. I got a sister, I got a mother, I don’t want rape to happen to any other woman. But like I said to you, I find it hard for me to stand before court and witness, because that’s what the detective want me to be… [indistinct]. They know I’m innocent, the police and the detective, they know I’m innocent and they know I lie and try to cover for this guy.
…
But I never said anything, I go and do the time. I feel guilty for why I never tell the true story, don’t worry about your friends, just let them go and pay for what they do, but I never did. So I was happy when I said I would do the time.
In relation to the 1989 offence of behaving offensively in a public place and drunk in a public place, Mr Panuve’s statutory declaration provides:
I went for a job at Swan Hill for one month on the farm. One weekend we went for a cold beer in the pub. After the pub closed, we ended up at the park with a few aboriginal for a drink. It's been a while I'm busting for a wee. I stand near a tree and wee. Here police come and charge me. I thought it night time the park is ok to wee. I was wrong and I learned.
I came back to Melbourne. I started to take responsibility for the future of my daughter. I walked her to school and picked her up from school when finished. I go on for a few years and to Improve my fatherly responsibilities. I give up drinking, smoking and doing drugs. I started going back to church and doing the right things so I could set a good example for my daughter and others around me.
In relation to the 1992 offence of using threating words in a public place and unlawful assault, Mr Panuve states:
To cut the story short, the government welfare department took my daughter from me for a while. I never see her. I had no money. I went to see legal aid. To organise court intervention to return my daughter. On the day of court, t was waiting outside for the courtroom hearing. Welfare lady with my daughter arrived. My daughter saw me and ran to me telling me she was hungry. Take away food was close by. We start to walk to get food the welfare lady came and grabbed my daughters other hand and pulls her away. I told her I. buy her food she wants, and they go. She said I'm not allowed. I confused what I do wrong she force my daughter away. She makes false statement about me. I went to court wanting to plead not guilty for all charges. The legal aid advises me to plead guilty and I only get a fine, we go home. I never never never want. I'm innocent. For being poor I plead guilty.
Mr Panuve provided the following evidence at the hearing about these 1992 offences:
Mr Panuve: They come and take my daughter away without my knowledge, you know. So I go and get the Legal Aid to fight for it and what’s happening, and here she comes with this lady and she doesn’t feed her. She says ‘daddy, I’m hungry’ you … [indistinct]. I say come on because there is a takeaway across the road but she comes straight away and grab her. So she got one hand, I got one hand. And she tried to pull and then she tried to grab both hands. I say ‘can you please take off your hand’ and come with me and I’ll buy the food and solve the problem and then we go to court… [indistinct]. Then what’s happens, we fight in court and I win. She put all this claim in but we fight in court and the Judge believe me that the little girl should be with the father…
Member: So your daughter was returned to you?
Mr Panuve: Yeah, I got my daughter back.
Member: But then you got charged with threatening to kill…
Mr Panuve: I never told her I was going to kill her in front my daughter. It’s just I tried to take her hand, I asked the lawyer and he said assault…[indistinct]
Respondent representative: Was the false statement saying that you threatened to kill the lady but you say you didn’t?
Mr Panuve: Like I said, I wanted plead not guilty but they told me, hey don’t worry just get a fine. But for me, if I had enough money to fight for it, I would have for my record. I’m an innocent man, I don’t go around trying to hurt people. I was just trying, because I love my daughter, she asked me for food and then here the thing happening and they charge me and all that. I accept that because the lawyer said guilty and get a fine and you get out of it.
Respondent representative: But Mr Panuve, just to confirm, this was after you spent some time in jail for very serious offences, where you pleaded guilty against your better judgement, and so at the time you knew the consequences of pleading guilty to something you didn’t do. Why didn’t you maintain your innocence?
Mr Panuve: Like I said to you with the lawyer, I got no money, and he told me. There is something I will try to talk about, can you see on the record they charged me with community services, we continue on fighting for my daughter and a little bit later, and then if you see on the record, I beat them in court. I beat them. This court knows because I go home and pray to God. God look at all these things here, I’m guilty, guilty, I’m sick of it because I’m poor but I am an innocent man…
Respondent representative: Just to confirm, You agree that you touched the welfare lady and that was considered assault but you disagree that you ever made a threat to kill her? Is that right?
Mr Panuve: Yeah, like I said to you… [indistinct]… but by law, by Australian law, I never know here, I was just tried to push her away, that it was assault. But I accept it because it’s my fault, I should learn about the law and don’t do those things but I accept it… [indistinct]. I want to say I’m not guilty for everything but because the lawyer, the Legal Aid, said to me plead guilty, don’t worry, you’ll just get a fine or something and then you can go home to your daughter…
In relation to the 1993 offences of unlawful assault and intentionally or recklessly causing injury, Mr Panuve states:
My daughter still with her mother In Gippsland In a town called Sale. Three hours drive from Melbourne. Most times I get the train. They make it hard for me not to see her at her mothers place but their office. They try to make my daughter hate me. But thanks there is God knowing all truth. I went for a visit. They want to make It not good. And they make false statement about me and ask police to charge me.
I remembered what happened before with welfare. I prayed to God and got a good lawyer to fight in court. As you can see without conviction all charges were withdrawn.
I know I was innocent before and I still know that I was innocent forever. Thank God and my daughter back with me and still resides with me now. Because I'm a great father.
In relation to the 1993 offences, Mr Panuve stated at the hearing that he understood that these charges were withdrawn.
In relation to the 2001 offences of making a threat to kill, behaving in an offensive manner in a public place, and unlawful assault, Mr Panuve states:
Satan hate people who try to do good all their life. I went chemist to get medicine. I was third in line. Come to my turn. She doesn't assist me and then lets six other people before me. I ask why and she didn't answer. One lady worker says to her he's not Africa. To cut the story short she calls her to do something else. I told her she Is racist and walked out of the building sat on the outside public resting chair wondering why me.
Later police came, take me and charged me. I went to court to fight all charges. Legal aid advises me to plead guilty get a fine and go home with your daughter. I did get a $750 fine and then went home with my daughter. On my way home, I'm thinking very hard.
How can I afford to pay the $750 fine because I'm on unemployment benefits? I start looking hard for a job. Sometime later I found a job and I worked very hard. I go on working for over 10 years.
Mr Panuve provided the following evidence at the hearing in relation to the 2001 offences:
Mr Panuve: Yes, I remember that one. I went to the chemist, you know, I had been there a few times, I went this time and I was waiting and there’s an old lady there, you know I remember. And then something you know with me, supposed to but never happened. I remember I was saying to her, I think I said ‘you’re racist’ or something maybe but then she rings the police. I come outside and wait there and the police come, they explain to me, charge me, and I told them she’s lying, it never happened. But then they talk about it, I go to face it and I pled not guilty and I got $750.
Respondent representative: Can I just ask what it is that they say you said? So you were charged with a threat to kill, what was the threat they say you made?
Mr Panuve: They say that I told her that I would kill her. Yeah, I think that is what they say.
Respondent representative: And you said you pleaded not guilty, does that mean that you went to a hearing and the court found you guilty?
Mr Panuve: No, no I think I pled guilty because the lawyer told me to, because I got Legal Aid all the time and told me to plead guilty. I think I go there and plead guilty, that’s why I got the $750. Because I want to plead not guilty but Legal Aid said it’s alright…
In relation to the 2010 offences of recklessly causing injury, unlawful assault and intentionally destroying property, for which Mr Panuve was not convicted, he states:
To cut the story short. As you can see someone out there still want to get me. I never give up trying to do the right thing for me, for my daughter, for God and for others. All charges have been withdrawn. I was proven Innocent.
The following people provided character references for Mr Panuve:
(a)Mr Leigh Gunn HSE Manager Nufarm Australia
(b)Reverend Lauleti Tu’inauvai Minister Blackburn North/Nunawading Uniting Church of Australia
(c)Reverend Feke Kamitonti Minister Canterbury Uniting Church of Australia
(d)Reverend Fakava MA Finau Minister of North West Wesleyan Methodist Church of Australia
(e)Reverend 'Isileli Jason Kioa Minister Uniting Church in Australia
(f)Mr Panuve’s daughter
(g)Bishop Bruce Hafoka Sunshine Ward Bishop in the Deer Park Stake of The Church of Jesus Christ of Latter- Day Saints
(h)Mr Joe Vella team leader Nufarm Australia
Mr Panuve provided the following letter with his application to the AAT dated 22 February 2019:
I claim the decision on my application for citizenship is wrong.
I wrote this letter and ask if you could please look at my application and judge my case fairly. I am not a criminal. I know and God knows. You can see my criminal record and I don't blame you. But you never know the truth. Only God knows, myself and some others. I sent you my criminal record and a statement explaining my situation for each record.
In my refusal of citizenship application letter. I was advised with all the documentation l supplied I was unable to prove I was of good character. I provided the documentation that was asked of me. I have provided enough evidence to prove I am of good character.
I was found guilty of serious offences in 1983. I have clearly explained I never raped or assaulted anyone. I never used threatening language or unlawfully assaulted anyone on 8/12/1992. I never stole on 12/4/1979. I didn't threaten to kill on 22/8/2001.
In my refusal of citizenship application letter. I was advised that I had been granted a subclass 155 visa (temporary Resident Return Visa) on the 24th June 2015. This is incorrect. I was granted a class 154 visa on 9th August 2002.
I've made mistakes. I'm not perfect. But if asked by people in my community, people who have known me from Tonga, New Zealand and Australia. All those people would say I'm one of the best that born to earth. I'm approachable, helpful, kind and I respect all people. I stopped drinking, smoking and taking drugs. I became a positive influence in my community, and I looked after my daughter who still lives with me today. That shows my true colours.
CONTENTIONS
Mr Panuve
Mr Panuve argued that he was not a bad person, of bad character or a criminal. He stated that he had done bad things in the past and made mistakes, but he had changed, repented and was remorseful for his past behaviour.
Mr Panuve argued that it was God who would ultimately judge him as he is a faithful Mormon Christian who actively participates in his congregation at the Church of Latter-Day Saints in Deer Park where he attends regularly, teaches and volunteers. Mr Panuve argued that he had changed greatly since his offences, including that he has given up smoking, drinking and taking drugs as he realised this was not in accordance with the teaching of his church or in the best interest of his daughter.
Mr Panuve accepted that he had been found guilty of rape in 1982 and that he had served his sentence because he accepted the law of this land. However, he maintained that he was innocent of this crime. Mr Panuve argued that he was respectful of women and would never hurt a woman and accepted that it was wrong to assault or rape someone. Mr Panuve stated that he knew who had really committed the crime for which he had been found guilty, but that he was not prepared to provide their names to the police. Mr Panuve argued that there was insufficient evidence against him and that his legal aid lawyer had failed to challenge certain aspects of the evidence in court.
Mr Panuve submitted that although he had been found guilty of rape 39 years ago, he had never been charged with rape again. Mr Panuve accepted the outcome of the court and acknowledged that he had been found guilty but argued that his character should be assessed on the basis he had not committed such a crime again.
Mr Panuve argued that he had demonstrated that he was of good character as he had supported his daughter throughout her life, and she continues to live with him. He has also worked in numerous roles including as a farmhand, a concreter and for many years at Nufarm. He is now a pensioner but still helps his daughter with her cleaning jobs.
Mr Panuve submitted that many people in the community respect and admire him for his work ethic, role in his church, involvement in the Tongan community and generosity. Mr Panuve provided statements from members of the Tongan community and his former employer which attest to his good character.
Respondent
The Respondent submitted that Mr Panuve’s criminal conduct was serious and evidence that he was not of good character. The Respondent contended Mr Panuve had a long history of violent offending, which coupled with his lack of insight into his behaviour, illustrate that an insufficient period of time had passed to establish that he was now of good character.
Significantly, the Respondent contended that Mr Panuve’s account of his offending demonstrates an ongoing propensity for self-serving omissions. The Respondent submitted that Mr Panuve’s predisposition to downplay and diminish his culpability weighs significantly against a conclusion that he is of good character.
The Respondent submitted the Tribunal could place no weight on Mr Panuve’s version of events as outlined in his statutory declaration or evidence to the Tribunal. The Respondent argued the Tribunal could not go behind the determination of the court and was required to act on the basis that the verdict of the court and the essential factual findings supporting the verdict were correct.
The Respondent submitted the Tribunal must be 'positively persuaded that the applicant is of good character', as per Chen and Minister for Immigration and Citizenship [2007] AATA 1815.
The Respondent took the Tribunal to Mr Panuve’s statutory declaration of 24 January 2019 where Mr Panuve’s account of the events of the 1982 rape in which he simply stated that ‘something not good happened’, despite having been found guilty, convicted and sentenced for rape and assault.
The Respondent further emphasised this point, again referring to Mr Panuve’s statutory declaration of 24 January 2019, where the Respondent argue he continued to blame his victims for his actions in the 2001 incident, despite having been convicted of unlawful assault, using threatening words, and making threats to kill.
The Respondent contended that Mr Panuve displays a pattern of behaviour in his offending, given his convictions for assault span a period of almost 20 years. The Respondent contended that whilst a considerable amount of time has elapsed since these offences were committed, they nonetheless demonstrate that Mr Panuve’s offending cannot be described as ‘one-off’ behaviour.
The Respondent acknowledged Mr Panuve had provided evidence to demonstrate that he has been gainfully employed, played a positive parental role in his daughter’s life, and has been active in the church and Tongan community. However, the Respondent noted that only three of the eight references submitted by Mr Panuve explicitly state that the referees were aware of his offending. The Respondent also argued that the references written by Mr Panuve’s daughter carry little probative weight in the Tribunal’s objective assessment of the Applicant’s good character.
The Respondent contended that although Mr Panuve has not recently offended, his criminal offending stretched over a period of more than 20 years and involved threats of violence and rape which attracted a lengthy prison sentence. The Respondent also argued that Mr Panuve remains in denial about his most serious offending and continues to downplay his other convictions for violent conduct. The Respondent submitted that Mr Panuve cannot be found to have ‘enduring moral qualities’ as long as he continues to understate the seriousness of his offending and fails to accept responsibility for his violent conduct.
The Respondent submitted the Tribunal should be guided by the general principles articulated in the matter of BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [87] in which Judge O’Bryan articulated that good character refers to a person’s enduring moral qualities:
As discussed earlier, the phrase “good character” refers to the enduring moral qualities of a person and not to their physical or mental attributes or abilities. The expression does not have a fixed and precise content and necessarily imports a discretionary value judgment informed by the subject matter, scope and purpose of the Act. The expression is concerned with moral qualities that are regarded as a necessary concomitant of Australian citizenship.
The Respondent argued that given the seriousness of the offending and lack of insight shown by Mr Panuve into his offending, insufficient time had passed for the Tribunal to be positively satisfied of Mr Panuve’s enduring moral qualities. In support of this contention the Respondent took the Tribunal to two authorities:
(a)Deputy President Professor Walker’s decision in Sui and Minister for Immigration and Citizenship [2008] AATA 1062 at [71]-[73]:
In my view the decision of Deputy President Breen in Fenn is very much in point. In that case the applicant had made a concerted effort to turn his life around after a period of law-breaking, but the tribunal considered that it would take longer than the five years that had elapsed for there to be sufficient evidence that his character had been restored to the level required for a grant of citizenship.
Mr Annan submitted that in the present case six years had elapsed, not five as in Fenn, but the record of the applicant in this case is much worse than that in Fenn and extended over a very long period of time. His most recent offences included an offence of dishonesty relating specifically to the grant of a passport, one of the incidents of citizenship.
Breen DP noted that a refusal to grant citizenship at that point did not deprive the applicant of any rights he currently held, nor did it prevent him from applying for citizenship again in a few years’ time when he could demonstrate a longer period of positive contribution to the Australian community. The same is true in the present case.
(b)Senior Member Poljak’s decision in Dargahi and Minister for Immigartion, Citizenship, Migrant Services and Multicultural Affairs [2001] AATA 4561 at [31]:
As already discussed in these reasons, I do not accept that the applicant is remorseful or has insight into his criminal conduct. Given the magnitude and nature of his criminal offending, specifically the offences of detain for advantage and cause injury to victim – SI and assault occasioning actual bodily harm – T2, the seriousness of the applicant’s conduct is not mitigated by the mere passage of time.
CONSIDERATION
The Tribunal was in complete agreement with the decision of their Honours in the Melbourne Supreme Court who found:
I think that account of the events of the evening, as far as MLJ was concerned, is sufficient to indicate the gravity of the charges of rape which were laid against Haino [Mr Panuve].
Despite Mr Panuve’s ongoing claims of innocence, the Tribunal determined that he had committed serious violent crimes against women. The Tribunal was conflicted, however, as it did not find Mr Panuve was trying to diminish the seriousness of the crime, nor downplay the harm that had been caused to the women by the 1982 incident. The Tribunal instead found Mr Panuve’s evidence showed genuine concern for the welfare of the women on the night.
However, the Tribunal does not find Mr Panuve was remorseful for his culpability in the 1982 rapes. Even if the Tribunal accepted that Mr Panuve had not committed the rape offences, he failed to prevent the rapes occurring. He showed remorse for failing to identify the alleged rapist to the police, but he did not seem to comprehend his part in the whole event. Mr Panuve showed concern for the women but did not demonstrate contrition for his part in this horrendous crime.
The Tribunal finds that Mr Panuve committed his most serious offences nearly 40 years ago, and whilst Mr Panuve has been charged with other offences since that time, he has not been charged or convicted of rape or sexual assault. The Tribunal does not concur with the Respondent that the matter of Sui is relevant to this matter. The case of Sui is not analogous because in that case only six years had elapsed since the offending, whereas Mr Panuve’s rape offences occurred 40 years ago, and some 36 years has elapsed since he was released from prison. Furthermore, over 20 years has passed since his last recorded conviction of any kind.
The Tribunal’s role is to weigh all the factors to arrive at a conclusion of whether Mr Panuve could now be considered of good character. On the one hand, there is no doubt Mr Panuve’s offending was very serious. On the other hand, it is 40 years since Mr Panuve’s most significant offending and 20 years since he was last convicted of a crime. The Tribunal accepts that since that time he has changed his behaviour by giving up smoking, drinking and taking drugs, has been an attentive father to his daughter, has worked for many years and paid his taxes, and been an active participant in his church and community. The question for the Tribunal is whether this is sufficient to now consider him of good character, considering his serious offending.
The Respondent’s contention was that regardless of the significant period of time which has elapsed since Mr Panuve’s offending, the Tribunal could not find that he displayed enduring moral qualities because he did not appreciate the seriousness of his past actions and the harm he caused to others, particularly in relation to the 1982 and 2001 offences. Simply put, the Respondent submitted that Mr Panuve’s ongoing refusal to acknowledge his own culpability, coupled with the serious nature of his offending, meant he could not be considered to be of good character.
The Respondent took the Tribunal to the CPI 15 and whilst acknowledging the Tribunal was not bound by the policy, argued that it provides guidance on how character should be assessed. The Respondent argued that the policy made clear that it may be difficult for a decision maker to find a person is of good character, even after a significant passage of time since the offences. In support of this the Respondent took the Tribunal to the case study of ‘H’ at 14.3 of the CPI 15, which they submitted was loosely relevant to the current situation:
Applicant H committed child sexual assault offences 30 years prior to applying for citizenship. He was sentenced to 12 years imprisonment, and while in prison, completed sex offender rehabilitation programs. He was released from prison 10 years prior to applying for citizenship and had no further convictions. After weighing up the evidence, including the sentencing report, publicly available information about the long-term effects of sexual abuse on children, and character references, the decision maker was no satisfied that the applicant was of good character. The seriousness of his offences outweighed the fact that he had not been convicted of any offences since release.
Mr Panuve was aggrieved by the comparison of himself to the example of ‘H’, and strongly protested that his crimes were never against children. Mr Panuve reiterated that he accepted he had been found guilty of offences and had served the sentence of imprisonment and paid the fines. Mr Panuve argued that the Tribunal’s role was to assess the sum of a person’s character and not just who they may have been at one point in time, and that on this basis he should be judged a good person.
The Tribunal finds that a great deal of time has passed since Mr Panuve’s serious offending and that whilst he still proclaims his innocence, he has accepted the findings of the court, shown remorse for his past behaviour, taken action to become a better person, been a dedicated father, and contributed meaningfully to the fabric of the Australian community. The Tribunal relied upon Mr Panuve’s evidence at the hearing:
I believe everyone on earth makes mistakes. Like you said, this one is serious. I believe so. Everybody when I watch the news talk about rape, I really, really hate to hear because I believe from the beginning if somebody raped my mother, my sister or my daughter, maybe the first thing that come to my mind would be to kill them. But in the religion, I believe, there’s no such thing you go and hurt anybody at any stage. Doesn’t matter they come and do bad things to you, no, there is no get revenge or something. All you do is forgive, doesn’t matter how bad it is, you forgive it, and if you do mistake, you change, you change your life. That’s what I believe in. Like I put in the thing, I accept that I found guilty. But I saw the error and I changed. If you believe that I am a bad man for doing that, I saw that I changed. We have to accept people these days make mistake, they change, and they get better. You can’t look at people and keep saying for one mistake and say forever it will stay like that, you know what I mean. Because I believe in God and God say if you change and repent, I will forget it all.
…
Don’t get me wrong, I have remorse for all the bad things happening. I say I take all that and I changed and prove to you you’re never going to see me doing any assaults or something…[indistinct]. Don’t be thinking he don’t have any remorse or never changed, no. I did. I changed my whole, whole life, and you will never, never see me get fine or doing any crime in this country.
The Tribunal considered the numerous references which Mr Panuve provided and finds they paint a picture of a man dedicated to his daughter, church, faith and community. They speak of a hard-working man who changed his behaviour to secure a better life for himself and his child. The Tribunal relied on the references summarised by the following examples:
(a)Rev Lauleti Tu’inauvai provided a statutory declaration dated 28 December 2018:
I Rev Lauleti Tu'inauvai of [..,] my occupation is a Minister of Religion in the Uniting Church in Australia. I am the minister in placement at Blackburn North/Nunawading Uniting Church. I am an authorized religious marriage celebrant. I make the following declaration under the Statutory Declaration Act 1959:
I am writing as a character reference for Mr Sesetaia Palaki Panuve born on the 11th November 1953 who is currently residing at [….] Victoria 3021. My character reference is written to support Mr Panuve's application for Australian Citizenship.
I have known Mr Panuve since I arrived in Australia in 1989. We played tennis together and met in several religious and Tongan gatherings in Melbourne.
I came to know Mr Panuve better in 2002. We played tennis in Reservoir when I lived in the northern suburbs and we became members of the Tonga Tennis Association in Melbourne.
We were not only playing tennis but we also share some challenging and exciting issues in life. Mr Panuve converted and became an active member of The Church of Jesus Christ of Latter-day Saints {Mormon Church).
I am aware that Mr Panuve was found guilty of rape and assault and was sentenced on 15th March 1983.
I am also aware and impressed of how Mr Panuve, a single father, fathering her daughter […] who is of Aboriginal heritage after Mr Panuve was released from prison. Ms Nelson was born on the 24th September 1982 and is currently residing with Mr Panuve at […], Victoria.
I am aware that currently, Mr Panuve continues to support his daughter […]. He continues to be a trusted, respected and responsible member of the tennis friends, Mormon Church and the Tongan Community in Melbourne.
I therefore have no hesitation in supporting Mr Panuve's application for Australian citizenship. Mr Panuve will be a great citizen of Australia and would contribute to Australia's values.
(b)Bishop Bruce Hafoka provided the following reference dated 25 December 2018:
My name is Bishop Bruce Hafoka and I serve as the Sunshine Ward Bishop in the Deer Park Stake of The Church of Jesus Christ of Latter- Day Saints.
It is with pleasure that I make a recommendation of a character reference in regard of Mr Sesitaia Panuve who is a member of my congregation.
I have known Sesitaia Panuve for over 6 years and I have personally found him to be kind, considerate, hardworking, he is a dedicated father who loves his family, and would do anything for them.
Mr Sesitaia Panuve is a just decent law-abiding citizen a family man who attend church regularly and currently participate in our Church Activities and programs.
He would go the extra mile to help his family or anyone who is in need, he is a well-respected member of my congregation and of our Tongan community.
I have no hesitation whatsoever, in saying that Mr Sesitaia Panuve, is both physically and emotionally stable and that first and foremost, his family and their well-being is central to his happiness.
He is a kind, patient, and trustworthy person Mr Sesitaia Panuve fits this Description, in no uncertain terms. It is indeed an honor to have close association with him.
(c)Mr Lee Gunn gave the following reference dated 26 December 2018:
I have known Sesetaia for nearly 15 years since we first met in mid-2000’s. I was a new manager employed at the Nufarm chemical plant in Pipe Road, Laverton and Sesi was an employee working in our recycle packaging plant (reconditioning returned envirodrums and IBCs for re-use).
I was Sesi’s manager for 12 years and I found him to a gentleman in every way, He was highly dependable and a hard worker, a pleasure to know and work with. Sesi, regretfully, left our employment due to a restructure and redundancy offer. I would readily re-employ Sesi if the role and opportunity existed.
Sesi is also a strong community minded person and works tirelessly within his church and community. I have witnessed this first hand and I am impressed with his compassion and kindness. I fully support his application for citizenship and have no hesitation in providing further character if required.
The Tribunal weighed all the evidence and finds that a sufficient passage of time has lapsed since Mr Panuve’s rape conviction and that whilst he continues to proclaim his innocence, he does not lack insight into the offences. Unlike the matter in Dargahi, Mr Panuve did not dismiss the harm that had been inflicted onto others and had insight into the need to change his ways, which he has done.
The Tribunal does not consider that Mr Panuve has displayed a pattern of behaviour in his offending. All of Mr Panuve’s criminal charges, other than the 1983 rape offences, were considered less serious by the courts, as they were all dealt with by way of fines. Whilst Mr Panuve’s actions could not be described as ‘one-off’ offending, the Tribunal considers that a considerable amount of time has elapsed since these offences were committed, such that they do not demonstrate that Mr Panuve is of bad character.
CONCLUSION
The Tribunal concurs with the Respondent that Mr Panuve’s crime of rape in 1982 was extremely serious and accepts the sentencing remarks of the appeal court as to the factual findings of the case. The Tribunal does not find that Mr Panuve sought to diminish the crime of rape and finds that he acknowledges the seriousness of the crime and the horrendous impact it would have had on the two women concerned.
In respect of Mr Panuve’s other offending, the Tribunal does not consider that this displays a pattern of behaviour or a tendency to violence.
The Tribunal considered Mr Panuve’s qualities in aggregate including: his 46 years of contribution to the Australian community, the significant period of time which has elapsed since the rape offences and his most recent convictions, the steps he has taken towards rehabilitation, his connection to his daughter, his contribution to his church and the Tongan community in Australia, his long work history, and his desire to become an Australian citizen. These demonstrate that he is a person who has caused significant harm but who displays enduring moral qualities.
The Tribunal, weighing up all the factors in this matter, considers Mr Panuve is of good character, who has shown enduring moral qualities, and concludes that he should not be denied the ability to apply for Australian citizenship.
DECISION
The Tribunal sets aside the decision of the delegate, dated 31 January 2019, refusing Mr Panuve’s application for Australian citizenship by conferral, and remits the matter to the Minister for reconsideration in accordance with a Direction from the Tribunal, pursuant to section 43(1)(c)(ii) of the AAT Act, that the Applicant is a person of good character for the purposes of the Act.
I certify that the preceding 69 (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member.
......................[sgd]............................
AssociateDated: 20 May 2022
Date of hearing: 7 February 2022 Applicant: Self-Represented Respondent representative: Ms Siran Nyabally Respondent solicitors: Australian Government Solicitor
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