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

[2020] AATA 1724

PKTV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1724 (12 June 2020)

Division:GENERAL DIVISION

File Number(s):      2019/4864

Re:PKTV

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member R Maguire

Date:12 June 2020

Date of written reasons:        12 June 2020

Place:Brisbane

The Reviewable Decision, dated 17 July 2019, is affirmed.

......................[SGD].............................

Member R Maguire

Catchwords

CITIZENSHIP – citizenship by conferral – character test – whether Applicant is of good character – prior criminal convictions – Applicant not of good character – decision affirmed

Legislation
Australian Citizenship Act 2007 (Cth)

Community Protection (Offender Reporting) Act 2004 (WA)

Criminal Code Act 1913 (WA)

Cases
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
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634

Zheng v Minister for Immigration and Citizenship [2011] AATA 304

Secondary Materials

Australian Citizenship Policy

REASONS FOR DECISION

Member R Maguire

12 June 2020

1. Mr PKTV, the Applicant seeks the review of a decision[1] by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Department) made on 17 July 2019 to refuse the Applicant’s application for citizenship by conferral under section 24(1) of the Australian Citizenship Act 2007 (Cth) (the Act) on the ground that the Applicant did not meet section 21(2)(h) of the Act which requires the Minister to be satisfied that the Applicant is of good character at the ‘time of the Minister’s decision on the application’.

   [1] Exhibit 1, T documents T 12, pages 52 to 60, notification of refusal of an application for Australian citizenship by conferral.

2. At the outset, the Tribunal considered it appropriate to issue a confidentiality order in this application to prohibit the publication or other disclosure of any information tending to reveal the identity of the Applicant or the victim of the crimes in his criminal history.

   ISSUE FOR DETERMINATION

3. The issue for determination in this application, is whether the Applicant is a person of good character for the purposes of section 21(2)(h) of the Act at the time of this decision.

   THE LAW

4. Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen.

5. Section 24(1) of the Act requires that if a person makes an application under section 21, the Minister (or a person delegated by the Minister) must, by writing, approve or refuse to approve the person becoming an Australian citizen.

6. Section 21(2) sets out the general eligibility criteria for an applicant who is 18 years or older, and a permanent resident. Section 21(2)(h) provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the applicant ‘is of good character at the time of the Minister’s decision’.

   Good Character

7. The term ‘good character’  is not defined in the Act, however, Chapter 11 of the Citizenship Policy (‘the Policy’) provides guidance on the administration of the ‘good character’ provisions under the Act.

   Chapter 11 of the Policy[2] provides that “good character” refers to the enduring moral qualities of the person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship.”[3]

   [2] Exhibit 1, T documents, T 13, pages 61 – 73, Citizenship policy.

   [3] Exhibit 1, 2 documents, T 13, page 62.

8. The Policy refers to the Full Federal Court judgement in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422; at 431 – 432:

   Unless the terms of the Act and regulations require some other meaning be applied, the words “good character” should be taken to be used in the ordinary sense, namely, a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective 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.

9. The Policy’s description of this passage as coming from a ‘Full Federal Court judgement’ is slightly misleading, as the judgement in question was not a joint judgement of the Full Court of the Federal Court. It was from a judgement delivered in the Full Court, but was not a judgement of the Full Court in that it was not a judgement of all three judges. The Court was constituted by Davies, Lee, and RD Nicholson JJ. Each of the judges gave separate reasons, incurring in the result. Nicholson J expressly concurred with the reasons of Davies J, and neither Davies J, nor Nicholson J expressed concurrence with the judgement of Lee J from whose judgement the quoted extract is drawn.

10. The question of whether a person is or is not ‘of good character’ is primarily an issue of fact.[4] Davies J remarked (at 427 – 428):

    The drawing of a conclusion by a decision maker as to whether he or she is satisfied that an applicant for a visa is of “good character” requires the exercise of a value judgement. There are no precise parameters which distinguish “good character” from “bad character”. Although in general, “good character” can be readily recognised, in a particular case views may differ. It is for the administrative decision maker, in whom Parliament has reposed the function of making that assessment, to arrive at a decision…

    [4] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 424 per Davies J (with whom RD Nicholson J concurred).

11. In deciding that fact, the Tribunal ‘was entitled to be guided by any general relevant government policy which was not inconsistent with the provisions or the objects of the [relevant] act’.[5]

    [5] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 420 per Bowen CJ and Deane J.

12. In Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR187 the Full Federal Court[6] said; at 197:

    The words “good character” in this section should, as Lee J pointed out in Irving, (at 431 – 432), be understood as “a reference to the enduring moral qualities of a person”. Conduct may make those qualities visible, but it should never be confused with them. In each case having had regard to the conduct, the Minister or other decision maker must still come to a further conclusion, whether or not to be satisfied that the person is not of good character.

    [6] Per Burchett, Branson, and Tamberlin JJ.

13. The decision of Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 makes clear that in considering the application of policy, the Tribunal must not lose sight of its duty. Brennan J said at 642:

    The Tribunal’s duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.

14. Neither party has submitted that there are cogent reasons so as to warrant a departure from the Policy in this review. Nevertheless, the Tribunal bears in mind that the Policy expressly states that it is not a binding checklist, and that decision-makers need to look at the merits of each case, and to turn their minds to the issues until they are ‘satisfied’ on a reasonable basis that an applicant is, or is not, of good character.[7]

    [7] Exhibit 1, T documents, T 13, page 61, Citizenship policy.

15. The Policy also states that in this context, ‘moral’ does not have any religious connotations, and that the phrase ‘enduring moral qualities’ encompasses the following concepts:[8]

    (a)characteristics which have been demonstrated over a very long period of time;

    (b)distinguishing right from wrong; and

    (c)behaving in an ethical manner, conforming to the rules and values of Australian society.

    [8] Exhibit 1, key documents, T 13, page 62.

16. The Policy further states that a decision maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout their migration and citizenship processes.

17. The Policy also refers to the matter of Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, where Deputy President DP Breen discussed the role of the character requirement in a citizenship application at [8]:

    The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home… The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. 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.

18. The policy also refers to Zheng v Minister for Immigration and Citizenship [2011] AATA 304, a decision of Deputy President SA Forgie. In that decision, after considering relevant authorities, Deputy President Forgie stated (at [119]):

    …it would seem, then, that the authorities are drawing attention to a person’s ability to know what society considers good, right and proper and to conduct him or herself in a manner that accords with society’s values.

19. Deputy President Forgie found that the preamble to the Act could provide assistance in identifying what Australian society considers to be right and proper behaviour for the purposes of assessing good character.

20. The  Preamble to the Act is as follows:

    The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity. 

    The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:

    (a) by pledging loyalty to Australia and its people; and

    (b) by sharing their democratic beliefs; and

    (c)by respecting their rights and liberties; and

    (d)by upholding and obeying the laws of Australia .

21. After considering the text of the Preamble, Deputy President Forgie stated 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.

22. The Policy also includes a non-exhaustive list of characteristics of good character:[9]

    [9] Exhibit 1, T documents, T 13, page 64 Citizenship policy

    1respect and abide by the law in Australia and other countries;

    2be honest and financially responsible (for example, pay their taxes, and not be in dishonest receipt of public funds);

    3be truthful and not practice deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:

    (a)providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications;

    (b)Involvement in bogus marriage;

    (c)concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship;

    (d)involvement in Centrelink or Australian Tax Office fraud;

    (e)giving false names and/or addresses to police;

    4not 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 license or insurance);

    5not be associated with others who are involved in antisocial or criminal behaviour, or others who do not uphold and obey the laws of Australia;

    6not have evaded immigration control or assisted others to do so, or been involved in the illegal movement of people;

    7not have committed, been involved with or associated with war crimes, crimes against humanity and/or genocide;

    8not be the subject of any extradition or other international arrest warrant; and

    9not been involved in 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.

    BACKGROUND

23. The Applicant is a 29 year old male citizen of Liberia, who arrived in Australia on 19 August 2009 as the holder of a Women at Risk (subclass 204) visa.

24. On 16 July 2016 the Applicant applied for Australian citizenship, and in doing so disclosed convictions for sex offences.

25. On 22 November 2011, the Applicant belatedly[10] pleaded guilty and was convicted in the Perth District Court of Western Australia of two counts of Sexual Penetration of a Child under 13 contrary to section 320(2) of the Criminal Code Act 1913 (WA), which carries a maximum penalty of 20 years imprisonment.

    [10] Exhibit 2 supplementary T-Documents ST 1 page 18.

26. The offences occurred on separate occasions between 30 November 2009 and
    28 December 2009 at which time the Applicant was 18 years old. The child was 12 years old, and whilst the statement of material facts asserted the she had been known to the Applicant since she was born, at sentencing, this was neither admitted nor the subject of evidence. The Applicant had a phone friendship with the child for a period of 4 months leading up to the offences.

27. The victim told police that she had advised the Applicant she was 12 years old turning 13,[11] and following an argument said ‘fine, I’m sixteen.’[12] The Applicant’s counsel relied on that exchange to submit to the sentencing judge that her client understood that the victim was 16, and had ‘the impression in his mind that she was sixteen when the offences were committed.’[13] The day after this conversation occurred, the Applicant went to the victim’s home at a time when he apparently knew she would be alone. This is suggestive of pre-meditation.

    [11] Exhibit 2 supplementary T-Documents ST 1 page 11.

    [12] Exhibit 2 supplementary T-Documents ST 1 page 12.

    [13] Exhibit 2 supplementary T-Documents ST 1 page 12.

28. He told the victim he wanted to have sex with her, and she replied that she wasn’t ready and they couldn’t do anything at her sister’s house. The Applicant said she didn’t love him and they had to do it to show they loved each other.[14] The victim subsequently became pregnant, and her pregnancy was terminated on 16 April 2010. On
    

    [14] Exhibit 2 supplementary T-Documents ST 1 page 5.

    [15] Exhibit 2 supplementary T-Documents ST 1 page 6.

    13 October 2010, the Applicant declined to participate in an Electronic Record of Interview, and was subsequently arrested and charged.[15]

29. At sentencing, the Applicant’s counsel produced a photograph which is not before this Tribunal, in support of the proposition that the victim looked older than her
    12 years[16] and stated that her client:

    wasn’t aware that the complainant was under 16. The photograph only goes so far as to show your Honour that that wasn’t an inherently unreasonable belief…[17]

    [16] Exhibit 2 supplementary T-Documents ST 1 page 9.

    [17] Exhibit 2 supplementary T-Documents ST 1 page 11.

30. Counsel for the prosecution told the court that it was ‘plainly apparent from all of the evidence that this offender knew that this girl was under the age of 16.’[18] Counsel also referred to the wide age gap, and referred to:

    the offenders blaming of the victim as he has persistently done throughout these proceedings. He has claimed that she was sexually promiscuous. He has called her knowledgeable and experienced and a mature female. And he has in general terms not acted responsibly for his actions at all. There is an apparent almost limitless capacity of this offender to minimise his involvement and culpability for the offending in this matter. He has been overbearing of the child victim and further he lacks apparently, at least so far as the report writers are concerned, any empathy for the victim and the consequences of his offending behaviour on her. I note from the reports that these factors aggravate – sorry aggregate to increase his risk of reoffending in some ways. That’s from the psychological report at page 6 though there are factors, other factors, relevant to his likely risk as well which the psychologist refers to.[19]

    [18] Exhibit 2 supplementary T-Documents ST 1 page 18.

    [19] Exhibit 2 supplementary T-Documents ST 1 page 18-19.

31. Defence Counsel for the Applicant relied upon a report which stated ‘it is unclear if [the Applicant] has attitudes which support sexual offending.’ In order to make the bold and unsupported claim that the Applicant ‘is still not at a high risk of reoffending.’[20]

    [20] Exhibit 2 supplementary T-Documents ST 1 page 21.

32. In the course of his sentencing remarks, the sentencing judge observed that there was
    

    [21] Exhibit 2 supplementary T-Documents ST 1 page 10.

    [22] Exhibit 2 supplementary T-Documents ST 1 page 11.

    [23] Exhibit 2 supplementary T-Documents ST 1 page 13.

    [24] Exhibit 2 supplementary T-Documents ST 1 page 14.

    [25] Exhibit 2 supplementary T-Documents ST 1 page 26.

    a ‘big age difference and it’s a very serious offence’[21] and that ‘most adult males who sexually penetrate, let alone impregnate children under the age of 13, go to prison.’[22] His Honour also observed that the Applicant was ‘coaxing; he was persistent in his quest for permission, basically’[23] and went on to say ‘he pestered her and she gave in.’[24] His Honour also remarked ‘I think it very unlikely to be the case that you thought she was 16 or older. I think you, being eighteen and a half at the time, must have known she was much younger than you.’[25]

33. His Honour also referred to a pre-sentencing report in which the Applicant had advised the author that the victim told him she was 17 years old.[26] Nowhere else has the Applicant asserted that the victim told him that she was 17 years old, and this raises the question as to what other falsehoods or inaccuracies the Applicant may have fed into the pre-sentence report.

    [26] Exhibit 2 supplementary T-Documents ST 1 page 27.

34. That report went on to say that the Applicant initially refused to have sex with the victim and stated the victim assured him that her mother was aware of their relationship, and that he later spoke to the mother who confirmed that she was aware that he and her daughter were in a relationship. The Applicant also went so far as to say that the victim had told him she was taking contraception, and he was adamant that neither the victim nor her mother told him her actual age.[27] The Tribunal is concerned that the report was founded on a series of falsehoods of which the Applicant was the sole author.

    [27] Exhibit 2 supplementary T-Documents ST 1 page 27.

1. The Applicant’s defence counsel told the court that the Applicant ‘expressed some concern that the child might not be his and he asked for a DNA test to be done…. He later found out that the complainant had an abortion, and of course the DNA evidence confirmed that it was in fact his child.’[28]

   [28] Exhibit 2 supplementary T-Documents ST 1 page 15.

2. At sentencing, the Applicant did not accept that he had previously admitted that the child was his. [29]

   [29] Exhibit 2 supplementary T-Documents ST 1 page 15.

3. In respect of each offence, the Applicant received a head sentence of 12 months imprisonment to be served concurrently, suspended for 24 months effective from
   22 November 2011. He was also required to undergo supervision and sex offender counselling. The Tribunal accepts that the Applicant completed this supervision and counselling. In respect of each offence he was a Reportable Offender and Community Protection Orders were made.

4. These offences were Class 1 offences for the purposes of Schedule 1 of the Community Protection (Offender Reporting) Act 2004 (WA), (‘the Reporting Act’) and in consequence, the Applicant remains subject to a mandatory 15 year statutory reporting requirement until 22 November 2026. Class 1 offences are the most serious offences under the Reporting Act.

5. A person who fails to comply without reasonable excuse with reporting obligations under that act commits a crime and is liable to imprisonment for 5 years, or if summarily convicted a $12,000 fine and imprisonment for 2 years.[30]

   [30] Community Protection (Offender Reporting) Act 2004 (WA), s. 63.

6. Moreover a person who has a reporting obligation in consequence of a Class 1 offence, and who is convicted of a further class I, 2, or 3 offence is subject to a lifelong reporting requirement: section 46(3) of the Reporting Act.

7. The Applicant agreed with Mr Hawker that his reporting obligations will continue until November 2026. He also agreed that these reporting conditions required considerable detail including his personal details i.e address et cetera, the names and ages of children with whom he had regular unsupervised contact, his internet service provider, his employment, and any clubs or organisations of which he was a member which had children as members, details of any vehicles he owned, and any tattoos or distinguishing marks he might have.

8. The Applicant agreed with a suggestion by the Tribunal that were he to reoffend before the expiry of his reporting period it could lead to a lifelong reporting requirement.

9. The Tribunal considers that the duration and rigour of the reporting requirements under the Reporting Act, together with the consequences for breaches and reoffending, reflect a legislative assessment of the seriousness of the Applicant’s offending, the risk of his reoffending, and the severity of the consequences which would flow from it, and heavily underscores the question mark which is presently over the Applicant’s character.

10. The Tribunal considers that it would be premature to conclude that the Applicant is a person of good character unless and until he successfully completes his reporting obligations.

11. The Applicant committed serious crimes of a sexual nature against a child. The Tribunal accepts that this is contrary to CPI 15 – Assessing Good Character under the Citizenship Act.[31]

    [31] Exhibit 3 annexure A page 12.

12. The Tribunal accepts that the Applicant’s offences caused significant harm to his victim.[32] The Applicant told the Tribunal that he’s had no contact with his victim since the last time they had sex. Since that time, the victim has had to deal with the trauma associated with an unwanted pregnancy at a tender age, the termination of that pregnancy, and in addition to these factors, she spent the best part of 2 years with the prospect of having to relive these painful matters giving evidence at a trial. The Tribunal accepts the Applicant’s evidence that he only decided to plead guilty ’belatedly’ after discussing the weight of evidence against him with his counsel. The Tribunal considers that the most practical way that the Applicant could demonstrate remorse would be for him to pay the outstanding compensation due to the victim, and the Tribunal is far from satisfied that he intends to do so, or ever will. The Tribunal is not satisfied that the Applicant is respecting the rights and liberties of his victim, and considers it is premature to reach a firm view as to whether he is upholding and obeying the laws of Australia as to compensation.[33]

    [32] Exhibit 3 annexure A page 16.

    [33] Exhibit 3 annexure A pages 5, 12.

13. Under questioning from Mr Hawker of Sparkes Helmore, the Applicant made ambiguous admissions, but substantially conceded the matters set out in the Statement of Material Facts, including that the victim had told him that she was 12 years old.[34] However, he also denied that she was 12 years old, and said that he ceased having sex with her when he found out her age. During his evidence, the Applicant continued to try to paint the victim as the perpetrator, saying at one point words to the effect that she sent him a text message saying that she wanted them to make love, and that she had ’everything there’. He also said that the victim sent him naked photographs of herself. The Applicant also tried to minimise his role, and denied that he had wanted to have sex with her, however he ultimately admitted that he wanted to have sex with the victim, and he agreed that he had persisted until she acquiesced. The Tribunal notes that the Applicant apparently told the author of a pre-sentence report that the victim told him she was 17 years of age.[35] The Applicant’s conduct during his evidence vindicated the submissions made by the prosecutor and referred to above.

    [34] Exhibit 2 supplementary T-Documents ST 1 page 5.

    [35] Exhibit 2 supplementary T-Documents ST 1 page 27.

14. The Applicant’s evidence was inconsistent with submissions which were made by his counsel at sentencing and the Tribunal has strong concerns that the Applicant may have knowingly misled the court at sentencing.

15. Under questioning from the Tribunal at hearing, the Applicant said that he first met the Applicant on a train in Perth, at which time she was in school uniform, and carrying a bag for her school books. The Tribunal accepts this evidence and notes with concern that this information was not placed before the sentencing judge, who may well have regarded it as relevant. The Applicant said that the meeting on the train was in about October or December 2010 or 2011, and that he was quite sure about that. As the actual offences occurred between 30 November 2009 and 28 December 2009, which time frame substantially coincided with School holidays, the Tribunal considers this evidence unreliable.

16. The Applicant also agreed with a suggestion by the Tribunal that the victim had no reason to lie to authorities about any aspect of their relationship.

17. The Tribunal does not have the benefit of a victim impact statement; however, the Tribunal is prepared to infer from the award of $50,000 by way of criminal compensation, that the impact of these offences on the victim was substantial, and the Tribunal gives weight to this.

18. The Applicant told the Tribunal that he was ordered to pay the compensation not long after the date on which he was dealt with in Court, 22 November 2011. He told the Tribunal that he was initially required to pay $80 per month, and agreed that this would have taken some 52 years for him to finalise payment. The Applicant also said that he’d had the monthly payments reduced to $40 per month. When asked how much longer his payments had to go, the Applicant was evasive, initially saying that he didn’t know how much longer they had to go. Neither could he remember how much he had left to pay. The Applicant told the Tribunal that the amount of compensation to be paid to the victim was reduced. He was initially vague and evasive in respect of the reduction, and eventually said that it was reduced to $30,000. He agreed with a suggestion from Mr Hawker that this would still take 31 years to pay off at $80 per month. The Applicant was asked how much he’d actually paid towards the reduction of this compensation, and eventually said about $3000, adding that he couldn’t quite remember.  Even if the compensation payable has been reduced to $30,000, based on the Applicant’s rate of payment of $40 per month, paying the balance will take over 50 years. Had the figure remained at $50,000 based on the Applicant’s rate of payment of $40 per month, paying the balance would take nearly 100 years. The Tribunal considers that the Applicant is shirking his statutory responsibility to pay compensation to his victim, and this is  clearly not what the Tribunal would expect from a person of good character. The Tribunal has strong concerns as to whether the victim will ever receive the outstanding amount, or even the bulk of it. By failing to honour his obligation to pay the compensation, the Tribunal considers that the Applicant continues to do ongoing harm to the victim, as he is depriving her of her lawful entitlement.

19. The Tribunal notes that there is no independent evidence that the Applicant is of good character.[36]

    [36] Exhibit 3 annexure A page 16-17.

20. There is no denying that this Applicant has committed a very serious crime against a child. He has engaged in victim blaming and minimising his conduct. The Tribunal accepts the evidence of the Applicant to the effect that the victim had no reason to lie to authorities about any aspect of the relationship, and is of the view that the victim told the truth when she said that she had told the Applicant she was only 12. Coming on top of the fact that the Applicant gave evidence that he initially met her on a train when she was on her way home from school dressed in school uniform and carrying a school bag, the Tribunal finds itself respectfully agreeing with the sentencing judge when he remarked that he thought it very unlikely to be the case that the Applicant thought the victim to be 16 or older.

21. The Applicant was a particularly unimpressive witness. He was vague, evasive and contradictory in his evidence before the Tribunal, and continues to shirk his responsibility to compensate his victim. None of this is consistent with a desire to obey the law. The Tribunal considers that the Applicant did not carry out his legal responsibility to use his best endeavours to assist the Tribunal to fulfil its duty.[37]

    [37] Administrative Appeals Tribunal Act 1975 (Cth), ss. 33(1AB); 2A.

22. All of the forgoing weighs against the Applicant, however, there are also other considerations.

23. This Applicant has over six years to go before he is relieved of his reporting obligations. It remains possible that he might breach those obligations, and face imprisonment. It also remains possible that he may re-offend during his reporting period, and his reporting obligation be extended to a lifelong one.  Were the Tribunal to find in his favour, and the Applicant subsequently breach his obligations or re-offend so as to attract a lifelong reporting obligation, the Tribunal would have failed in its objective to promote public trust and confidence in the decision making of the Tribunal.

24. In ruling against the Applicant, the Tribunal is mindful of the fact that after a period of time, and the completion of his obligations, it may be that he is able to satisfy the good character requirement. That remains to be seen.

    DECISION

25. In the light of all of the foregoing, the Tribunal is not satisfied that the Applicant is a person of good character at the time of making this decision, and accordingly, the decision under review is affirmed.

I certify that the preceding 59 (fifty -nine) paragraphs are a true copy of the reasons for the decision herein of Member R Maguire

..........................[SGD]................................

Associate

Dated: 12 June 2020

Date(s) of hearing:	09 June 2020
Date final submissions received:	08 June 2020
Applicant:	In person
Solicitors for the Respondent:	Sparke Helmore Lawyers