Pulini and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) - [2023] AATA 59

Pulini and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 59 (19 January 2023)
Division:GENERAL DIVISION
File Numbers:2021/9968 and 2021/9969
Re:Malavine Pulini and Isikeli Pulini
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Deputy President J Sosso
Date:19 January 2023
Place:Brisbane

The reviewable decisions are set aside and substituted with decisions not to revoke the Applicants’ citizenship pursuant to section 34 of the Australian Citizenship Act 2007 (Cth).
.....................[SGD]...................................................
Deputy President J Sosso
Catchwords
CITIZENSHIP – revocation of citizenship – human trafficking – harbouring an unlawful non-citizen – forced labour – whether it is contrary to the public interest for the Applicants to remain Australian citizens – factors to be considered in determining the public interest – exercise of the discretion to revoke the Applicants’ citizenship – decisions under review set aside and substituted
Legislation
Australian Citizenship Act 2007 (Cth)
Criminal Code (Cth)
Crime Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013 (Cth)
Migration Act 1958 (Cth)
Cases
Alcan (NT) v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27
Eidson and Minister for Immigration and Border Protection [2017] AATA 1354
Galuak v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 798
McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70
Minister for Immigration and Border Protection v Egan (2018) 261 FCR 451
NPRT and Minister for Home Affairs [2020] AATA 3641
Osorio and Minister for Immigration and Citizenship [2007] AATA 59
Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR 379
Plaintiff M79/2012 v Minister for Immigration and Citizenship (2013) 252 CLR 336
Prasad and Minister Assisting the Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 292
R v Pulini [2019] QCA 258
Re Davis (1947) 75 CLR 409
Shukure and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 63
Spall and Minster for Home Affairs [2021] AATA 4290
TRHL and Minister for Immigration and Border Protection [2015] AATA 803
TRHL v Minister for Immigration and Border Protection [2016] FCA 376
Trutmann and Minister for Home Affairs [2022] AATA 687
WBU and Minister for Immigration and Citizenship [2007] AATA 1143
XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 619
REASONS FOR DECISION
Deputy President J Sosso
19 January 2023
INTRODUCTION

On 12 November 2021, in separate decisions, the then Minister responsible for the administration of the Australian Citizenship Act 2007 (Cth) (the Act) revoked the citizenship of Mrs Malavine Pulini (Mrs Pulini) and Mr Isikeli Pulini (Mr Pulini) collectively referred to hereafter as “the Applicants” – Exhibit 1A (2021/9968) T24 pp. 247 – 257 and Exhibit 1B (2021/9969) T21 pp. 245 – 255.
The Applicants acquired Australian citizenship by conferral on 2 September 2009 – Exhibit 1B T14 para 4 p. 208.
Mr Pulini was born in Tonga in December 1960 – Exhibit 1B T4 p. 10, and Mrs Pulini was born in Tonga in March 1971 – Exhibit 1A T4 p. 10.
The Applicants were married in Tonga on 11 June 2002 – Exhibit 1B T14 para 19 p. 209.
The Applicants have four children: Me born in May 2000, IJ born in June 2001, E born in November 2002 and Mo born in April 2007 – Exhibit 1A T4 pp. 11 – 12, Exhibit 1B T4 pp. 11 – 12. Three of the children were born in Tonga and Mo was born in Australia – Exhibit 1B T14 para 22 p. 209. All four children are Australian citizens – Exhibit 1B T14 para 22 p. 209.
In April 2006, the Applicants and their children moved from Tonga to Australia – Exhibit 1B T14 para 4 p. 208.
Mr Pulini had lived in Australia for extensive periods prior to 2006. In 1987, Mr Pulini commenced a Bachelor of Engineering at the Queensland Institute of Technology, which he completed in 1990. Following his graduation, Mr Pulini undertook two years of work experience with the Queensland Department of Harbours and Marine. In 1992, Mr Pulini returned to Tonga and resumed employment with the Tongan Ministry of Works – Exhibit 1B T14 paras 40 – 42 p. 211.
When Mr Pulini and his family moved to Australia in 2006, he commenced working as a Senior Civil Engineer with the Queensland Department of Transport and Main Roads – Exhibit 1B T14 para 43 p. 211. Mr Pulini continued working with the Department of Transport and Main Roads and was promoted to Principal Civil Engineer with responsibility of managing some of the bigger Queensland infrastructure projects – Exhibit 1B T14 para 46 pp. 211 – 212.
With the exception of the crimes outlined below, the Applicants have no criminal history in Australia or Tonga – Exhibit 9 p. 109.
On 12 April 2019, the Applicants were convicted, and then on 16 April 2019, were sentenced in respect of the offences outlined below – Exhibit 9 pp. 98 – 99, 105 – 106, Exhibit 10 pp. 401 – 402:
(a)Mr Pulini –
(i)Harbouring an unlawful non-citizen contrary to s 233(2) of the Migration Act 1958 (Cth) (the Migration Act), convicted, sentenced to 3 years’ imprisonment;
(ii)Harbouring an unlawful non-citizen contrary to s 233E(3) of the Migration Act, convicted, sentenced to 2 years’ imprisonment; and
(iii)Causing a person to enter into or remain in forced labour, contrary to s 270.6A(1) of the Criminal Code (Cth) (the Criminal Code), convicted, sentenced to 5 years’ imprisonment.
(b)Mrs Pulini –
(i)Trafficking in persons, contrary to s 271.2(2) of the Criminal Code, convicted, sentenced to 2 year’s imprisonment;
(ii)Harbouring an unlawful non-citizen contrary to s 233(2) of the Migration Act, convicted, sentenced to 3 years’ imprisonment;
(iii)Harbouring an unlawful non-citizen, contrary to s 233E(3) of the Migration Act, convicted, sentenced to 2 years’ imprisonment; and
(iv)Causing a person to enter into or remain in forced labour contrary to s 270.6A(1) of the Criminal Code, convicted, sentenced to 6 years’ imprisonment.
The Applicants pleaded guilty to the Migration Act offences and were convicted of the Criminal Code offences after a trial – Exhibit 2 pp. 2 – 3 paras 8 and 10.
Mr Pulini’s non-parole period of 2 years expired on 15 April 2021, and his sentence expires on 15 April 2024 – Exhibit 2 p. 3 para 9.
Mrs Pulini’s non-parole period of 2 years expired on 15 April 2021, and her sentence expires on 15 April 2025 – Exhibit 2 p. 3 para 11.
All of the above offences involved the interaction of the Applicants with Ms MBN. Ms MBN was born in Fiji and attended school until Year 4. She has 3 brothers and 2 sisters – Exhibit 9 p. 115.
Ms MBN worked at home until she was 26, when, in 2001, she commenced doing domestic work for the Applicants. In 2001, she met the Applicants through a cousin who was living in Tonga. Initially, Ms MBN worked for the Applicants in Tonga, living in their home and caring for their children (at that time, there were 2 children both under the age of 2 years) – Exhibit 9 p. 115. Ms MBN stated that her typical working day started at 6:00am, and involved cleaning the house, preparing meals, washing clothes and caring for the children. Usually, she would finish work between 9:00 – 10:00pm and would sometimes feed the children milk during the night – Exhibit 9 p. 116.
Ms MBN did not have to work on Sunday and slept in a spare bedroom. She was paid fortnightly, and was given a salary which she described as a “similar wage to what I would have been paid for similar work in Fiji”. She also stated that she was “treated well” and was “happy with my work” – Exhibit 9 p. 116.
Ms MBN sent money each month to her family and returned to Fiji each December for three weeks. This arrangement lasted for approximately 5 years – Exhibit 9 p. 116.
Mrs Pulini asked Ms MBN to travel to Australia with the family and look after the children. The Applicants arranged Ms MBN’s air flight and tourist visa. Ms MBN flew with the Applicants and their children from Tonga to Brisbane and continued to do the same work for 3 months – Exhibit 9 p. 116.
Ms MBN lived with the Pulini family in Brisbane. Work conditions “were pretty much the same as they had been in Tonga” but she was only paid a small amount of money, usually $50 “every now and then” and, while her food was provided, she had to purchase her own personal items – Exhibit 9 p. 117.
In July 2006, when her tourist visa was due to expire, Ms MBN moved back to Fiji. In 2007, Ms MBN was contacted by Mrs Pulini who asked if she would move back to Australia and look after the Pulini children. Ms MBN made the following claim – Exhibit 9 p. 117:
“She [Mrs Pulini] told me that Keli [Mr Pulini] had a friend in Immigration that could help me with my papers and so I could stay in Australia. I was to travel to Australia on another tourist visa and Keli would make the arrangements for me to stay. Malavine [Mrs Pulini] told me that I didn’t need to worry about my visa. There was no talk about the actual work, other than looking after the kids. It was mainly talk about helping me to stay in Australia.”
Ms MBN had not been able to find work in Fiji after returning in 2016, and only one of her brothers was in gainful employment. Accordingly, she accepted Mrs Pulini’s offer – Exhibit 9 p. 117.
When she arrived in Brisbane, Ms MBN was informed that there was no longer a spare bedroom for her sole use, and she would have to share the bedroom with one of the children. In addition, Ms MBN was informed that, in addition to looking after the children, she would have to walk them to and from school, which entailed a 30 minute walk each way Exhibit 9 p. 117.
The day after her arrival, Ms MBN’s passport was taken by Mrs Pulini. Mrs Pulini told Ms MBN that her husband needed it to get help “from his friend at Immigration to organise my papers to stay in Australia” – Exhibit 9 p. 117.
Ms MBN was paid wages in cash each week or fortnight and, although there was no set rate, it averaged $200 per fortnight. The wages were spent by Ms MBN on toiletries, clothing and food – Exhibit 9 p. 118.
The hours of work and duties performed by Ms MBN were the same as her first stay in Australia. Although Ms MBN was given Sunday off work, she was often required to prepared food for guests. Ms MBN did not eat with the family unless there were guests. Usually, she would have her dinner at the kitchen bench – Exhibit 9 p. 118.
Ms MBN became acquainted with a Fijian woman named Kasa. She was introduced to Ms MBN by the Applicants so she would have someone to know in Australia. Some months later, Kasa invited Ms MBN to spend Fiji Day with her. Mrs Pulini agreed but told Ms MBN to be home by dark. On 10 October 2009, Ms MBN spent Fiji Day with Kasa, but the festivities finished late and Kasa rang Mrs Pulini and told her that Ms MBN would be home the next morning. Ms MBN was returned home by Kasa by 8:00am the following morning – Exhibit 9 pp. 118 – 119. Ms MBN gave the following account of what occurred when she arrived home – Exhibit 9 p. 119:
“30.When I arrived home, Malavine and Keli were sitting on the lounge. They started screaming at me and asking why was I late, why didn't I come home? They were also screaming and swearing at me in Tongan. I am not fluent in Tongan but I do understand some words when I hear them and I can speak a few words as well. They told me that I was not allowed to see Kasa anymore. They were angry because I had not come home when I was supposed to. I felt scared and very upset. I remember thinking that I wanted to run away but I didn't know anyone other than Kasa and I didn't have my passport. Kasa still didn't know that I wasn't an Australian citizen and I didn't want to go against Malavine's instructions. I was worried that Malavine might call the police If I told people.
31.About an hour later, Malavine came to my room and gave me a list of chores to do, which I started to do.
32. After Fiji Day, Keli stopped talking to me and ignored me for about two weeks. Malavine only talked to me about what duties I had to do. They both stopped being friendly to me from this time. I was still allowed to go to church most Sundays, but I didn't contact Kasa.
33.About three months later, sometime early in 2010, Kasa called me on the house phone during the week and asked me to meet her after church on Sunday. She was wondering why she hadn't heard from me. I didn't tell Malavine and Keli that I was going to see Kasa after church because I didn't want them to get angry at me. I didn't like it when they yelled and swore at me after Fiji Day and they had also ignored me most of the time after that day.”
It is tolerably clear, from the statement of Ms MBN, that she felt trapped in an unhappy existence where her life was overwhelmed by daily obligations to the Pulini family. She was oblivious to her legal status in Australia and felt totally dependent, in particular, on Mr Pulini, because of his purported links to Immigration officials. In short, Ms MBN, was alone, insecure, frightened and unsure of what to do. In these dire circumstances, according to her statement, the only stable and secure course of action, was inaction.
According to Ms MBN, she was allowed, very irregularly, to contact her family by means of telephone landline, and although depressed, was only treated well when visitors came to the Pulini home – Exhibit 9 p. 120.
In 2012, the Pulini family moved to new a home, although, in the same suburb in Brisbane. This move resulted, beneficially, in a shorter distance for Ms MBN to walk the Pulini children to school. At this time, Ms MBN overheard Mr Pulini talking on the telephone to another Tongan person and asking if they had found someone to come and marry her – Exhibit 9 p. 121.
At around this time, Ms MBN, through Kasa, became acquainted with another Fijian woman, Kelera. As with Kasa, Ms MBN did not disclose her situation to Kelera. After some time, Ms MBN told Kelera that her Fijian passport had expired and asked if she could help her to get a new Fijian passport. While holidaying in Brisbane in 2012, Kelera gave Ms MBN a Fijian passport application form which she completed and returned to Kelera for processing – Exhibit 9 p. 121.
In early 2013, Mr Pulini returned to Ms MBN her Fijian passport, which had expired in 2011. She did not question Mr Pulini about her immigration status as she was too frightened – Exhibit 9 pp. 121 – 122. Around this time, Ms MBN met another Fijian, Ms Nellie Berks. Through Nellie, she obtained an old mobile phone – Exhibit 9 p. 122.
Slowly during the period 2013 – 2014, Ms MBN began to tell her Fijian friends some of her life story with the Pulini family. One catalyst for this openness was her receipt of a new Fijian passport in December 2014 which she received from Kelera – Exhibit 9 p. 122. The receipt of this passport overcame some of the concerns of “not having papers whilst in Australia”.
Over time, Ms MBN told Kasa and Nellie that she didn’t have an Australian passport, but told neither lady all of her personal circumstances – Exhibit 9 p. 122.
Ms MBN had been feeling depressed since 2011, and by 2015, she had become very depressed. She explained how she was feeling as follows – Exhibit 9 p. 122:
“I was beginning to feel like there was no hope for my future. I wanted to be happy and to have a family of my own to look after. I felt down all the time and couldn't sleep at night. I wanted to see a Doctor but I was too scared to ask Malavlne and Keli to take me. I could not stop thinking about how they were treating me and I missed my family in Fiji.”
Since arriving in Australia, Ms MBN had only been able to transfer money to her family infrequently, and the amounts varied between $150 and $300. Further, she did not have enough money to pay for her airfares to visit her family in Fiji – Exhibit 9 p. 123, para 11 p. 128.
Ms MBN became good friends with Nellie, and would stay at her home on weekends when she was feeling depressed and tired. When she returned to the Pulini household on a Sunday evening “all of the housework from the weekend would be left for me to do. Sometimes Malavine and Keli would ignore me when I got home” – Exhibit 9 p. 123.
In August 2016, Kasa telephoned Ms MBN and offered to contact the Salvation Army and ask them for help on her behalf. Following Kasa’s contact with the Salvation Army, Ms MBN met with representatives of the Salvation Army and was subsequently flown to Sydney. On 9 September 2016, Ms MBN was interviewed by officers of the Australian Federal Police – Exhibit 9 pp. 123 – 124.
When sentencing the Applicants on 16 April 2019, Her Honour Judge Clare of the District Court of Queensland made the following observations – Exhibit 9 pp. 350 – 354:
“The Pulinis treated their victim like a servant. She was paid poorly and made to feel of little value. Previously, [MBN] had lived with, and worked for, the Pulinis for five years. They knew her as a good person, someone who was meek and gentle, and also good to their children. She had in fact played a significant role in the raising of those children.
[MBN] had trusted the Pulinis. In return the Pulinis treated [MBN] very badly. They used her poverty and desire to be in Australia to exploit her as cheap labour. They had encouraged her to stay on after her visa had expired. They oppressed her with duties, expectations and poor pay.
The longer [MBN] stayed without a legal visa, the more difficult it became for her to break free. The Pulinis mistreatment was calculated. And criminal. The impact on [MBN] was substantial. Her presentation in court was compelling. She had carried the weight of hopelessness and increasing despair for almost eight years.
Fiji had offered few opportunities for [MBN]. She wanted to help her parents. She was naïve and shy. She was someone with very limited life experience. She had never lived on her own. The only position she had ever held was as a maid for the Pulinis in Tonga. She loved the Pulini children. The prisoners knew all of that. They knew that she would be attracted to the prospect of a more prosperous life in Australia.
…
The trafficking conviction means that from the outset, Mrs Pulini planned to create a situation where [MBN] could be exploited. The promise of a contact in immigration was a device. Mrs Pulini never had any intention of helping [MBN] get a long-term visa. Rather, Mrs Pulini intended to make [MBN] more vulnerable by building her hopes for a future in Australia and by concealing the true reason for the confiscation of her passport.
On the strength of the promised contact in immigration, [MBN] handed over her passport and she overstayed her visa, making it increasingly difficult for her to leave. Mrs Pulini's early conduct indicates greater premeditation in the exploitation of [MBN]. Her conduct in the trafficking offence facilitated or contributed to the subsequent offences.
Mr Pulini did not commit the offence of trafficking, but he did assist his wife in organising [MBN] to travel to Australia. He knew that the short-term tourist visa was a sham. The Pulinis were bringing [MBN] over to work, and their plan was to have her stay on indefinitely.
Mr Pulini admitted that the couple had talked in detail about bringing [MBN] out. They decided from the outset that they would get her here on a three-month tourist visa with the intention that she would stay on illegally. He said it was more for the benefit of the Pulinis than [MBN]. Mr Pulini also assisted in the confiscation of the passport. He admitted to putting it in his wardrobe. I accept [MBN]’s evidence that Mr Pulini did not return the passport until it had expired.
…
At first [MBN] had believed the Pulinis’ claim that they could get her a long-term visa. By the time that [MBN] realised that it was not going to happen, she was already stuck. She knew under the terms of her visa that she was not supposed to work, and that she could not stay beyond the three months. She had in that way been made complicit in the breach of the immigration laws, and she was afraid of being charged and imprisoned.
By the 8th of March 2013, [MBN] had been in Australia illegally for about five years, knowing that she was vulnerable to deportation and worried that she could be imprisoned. She had been unable to talk with her family. She had been sending what little money she could home but for a very long time, she was unable to have any contact with her family. In the second year, she was once allowed to use the Pulini's phone, but then discouraged from using it again. It was six years before she got her own phone. She was an outsider to Australian culture and institutions. She had limited language skills and few connections. While she met people in Australia, by 2013 she had developed just one close friendship. That was with another Fijian lady.
[MBN] was dependent upon the prisoners for her accommodation and for access to any income to send to her family. There was the marked power imbalance. If she had left the Pulini house she would have nowhere to live and no means of support in Australia. Even the bank account that she was given was in the Pulinis name. At any time, they could close it. I accept that [MBN] was frightened of the Pulinis. The Pulinis would get mad at her if she was unable to do what was expected. They were unhappy with [MBN] even visiting friends.
…
In the eight years with the Pulinis, [MBN] did not have access to a doctor or a dentist. She got sick and she was in pain with toothache, but she was too afraid to ask for treatment. She suffered chronic health conditions, for which over the counter medications did not help. She would eat her meals alone and go to her room unless there were guests.
…
[MBN]’s impact statement speaks of lost relationships, both actual and potential, and outlines the psychological trauma she has suffered. She was demeaned and intimidated. She felt voiceless and broken and hopeless. She is still depressed. She has not recovered her self-esteem or her capacity to enjoy life as she once did. The eight years have taken a terrible toll.
…
There are pleas of guilty to the harbouring offences, reflecting some cooperation. The case argued by the defence was one of mutual benefit, but it was clearly rejected by the jury, through the verdicts relating to forced labour. It follows the Pulinis harboured [MBN] for the purpose of exploiting her.
Some cooperation can be identified in respect of the trial. The trial was shortened a bit with some formal admissions. Those appear to have been pragmatic, rather than an indication of remorse. They were limited to those aspects that were corroborated or could be proved outside of [MBN]’s evidence. Mr Pulini participated in an interview with a Federal agent, essentially admitting the harbouring offence but denying the other charges. I have seen no evidence of remorse in respect of the years of [MBN]’s life that were restricted and impacted.
…
It is hard to reconcile the Pulinis presentation to their friends in the church and neighbourhood with the way that they treated [MBN] behind closed doors. It seems that they compartmentalised their life. Privately they depersonalised [MBN] as the help while publicly presenting the face of generosity and kindness, even volunteering to help others.
The criminal offending was not an aberration. It continued for eight years and it only ended when [MBN] ran away. It was sustained, it was protracted and it was callous. The Prisoners took away a woman’s freedom and seriously compromised her human rights and dignity for eight years. This is time [MBN] will never recover. Damage that has been done cannot be undone…”

The Applicants appealed against both their convictions and sentences. The Queensland Court of Appeal dismissed the appeals against conviction, but reduced the sentences imposed by Judge Clare in relation to both Mr and Mrs Pulini – R v Pulini [2019] QCA 258.
On 19 October 2020, a Delegate of the Minister wrote separately to the Applicants and advised that, as a result of being convicted of a “serious offence”, it was open to the Minister to revoke their Australian citizenship. The Applicants were given an opportunity to comment on the information contained in the respective letters and to provide reasons as to why their Australian citizenship should not be revoked – Exhibit 1A T5 p. 15, Exhibit 1B T5 p. 16. The Applicants took advantage of this opportunity and provided evidence in response.
On 12 November 2021, the then Minister, the Honourable Karen Andrews MP, exercised her discretion under s 34(2) of the Act to revoke the Applicants’ Australian citizenships. In so doing, the Minister gave detailed reasons. In relation to Mr Pulini, the Minister concluded her statement of reasons with the following observations – Exhibit 1B T21 pp. 253 – 254:
“39.I have balanced the interests of the Australian community against the likely impact to Mr Pulini and his family, should his Australian citizenship be revoked. I have considered the nature of Mr Pulini's offending, the harm to the Australian community should he reoffend, his ties to Australia and his stated remorse. I have treated the best interests of [Mo] as a primary consideration in my decision.
40.I have concluded that if Mr Pulini were to reoffend in a similar manner, it would result in grave harm to a member of the Australian community. This is an unacceptable risk when weighed against the countervailing considerations above.
41.Having considered all the information before me, I am satisfied it would be contrary to the public interest for Mr Pulini to remain an Australian citizen and that it is appropriate for me to exercise my discretion to revoke Mr Pulini's Australian citizenship under section 34(2) of the Act. Therefore, I have decided to revoke Mr Pulini's Australian citizenship.”
The Minister gave the same reasons for revoking Mrs Pulini’s Australian citizenship – Exhibit 1A T24 pp. 255 – 256.
On 20 December 2021, the Applicant’s individually sought review of the Minister’s revocation decisions – Exhibit 1A T2 p. 3 – 8, Exhibit 1B T2 pp. 3 – 8.
ISSUES
The ultimate questions to be determined by the Tribunal are whether the decisions of the Minister to revoke the Australian citizenship of Mr and Mrs Pulini should be affirmed or set aside.
In answering those ultimate questions, the Tribunal is required to consider, separately, the circumstances pertaining to Mr and Mrs Pulini.
Further, in answering those ultimate questions, consideration must be given to the following issues:
(a)are the Applicants Australian citizens under Subdivision B of Division 2 of the Act – s 34(2)(a);
(b)have the Applicants, at any time after making their respective applications for Australian citizenship, been convicted of a serious offence within the meaning of s 34(2)(b)(ii);
(c)is it contrary to the public interest for either or both of the Applicants to remain Australian citizens – s 34(2)(c); and
(d)whether, if the above matters are satisfied, the discretion should be exercised to revoke the Applicants’ citizenship?
It is not contested that questions (a) and (b) are satisfied – Exhibit 2 para 22, Respondent’s Closing Submissions (RCS) p. 5 para 12.
It also flows from those findings that the only two questions that require resolution are (c) (the public interest question) and (d) (the exercise of power question).
In TRHL v Minister for Immigration and Border Protection [2016] FCA 376 (TRHL2), Gilmour J made the following observations (at [53]) regarding the two-step process that is required:
“…the Tribunal's reasons here disclose that it was aware that it had firstly to be satisfied that it would be contrary to the public interest for the appellant to remain an Australian citizen before the discretion in s 34(2) of the Migration Act was enlivened, and if it was so satisfied, to decide whether, balancing the factors relied upon by each the Minister and the appellant, it should exercise the discretion to revoke the appellant's Australian citizenship.”
STATUTORY OVERVIEW
Pursuant to s 52(1)(f) of the Act, an application may be made to the Administrative Appeals Tribunal for review of a decision to revoke a person’s Australian citizenship.
Section 34 of the Act confers power on the Minister to revoke a person’s Australian citizenship in certain circumstances. Of relevance in this matter is s 34(2)(b)(ii) and (c) which empower the Minister to revoke a person’s Australian citizenship if:
“(ii) the person has, at any time after making the application to become an Australian citizen, been convicted of a serious offence within the meaning of subsection (5)…
(c) the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.”
Conviction of a “serious offence” is defined by s 34(5) to mean:
“(a) the person has been convicted of an offence against an Australian law or a foreign law, for which the person has been sentenced to death or to a serious prison sentence; and
(b) the person committed the offence at any time before the person became an Australian citizen.
A “serious prison sentence” is defined by s 3 to mean a “sentence of imprisonment for a period of at least 12 months.”
As noted above, it is not in dispute that the Applicants have been convicted of serious offences as defined by s 34(5).
It is necessary, first, to deal with the question of what is meant by the term “public interest” in s 34(2)(c), particularly, as that term is not defined in the Act.
Some guidance is provided by Gilmour J in TRHL2 at [29]:
“As the appellant correctly noted the use of the expression ‘public interest’ in a statutory provision imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statutory provisions: Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR 379 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ at [42]. The whole of the text must be considered when construing it: Alcan (NT) v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 per Hayne, Heydon, Crennan and Kiefel JJ at [47].”
Reference can also be made to the judgment of Tamberlin J in McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70 at 75 – 76:
“8. The reference to ‘the public interest’ appears in an extensive range of legislative provisions upon which tribunals and courts are required to make determinations as to what decision will be in the public interest. This expression is, on the authorities, one that does not have any fixed meaning. It is of the widest import and is generally not defined or described in the legislative framework, nor, generally speaking, can it be defined. It is not desirable that the courts or tribunals, in an attempt to prescribe some generally applicable rule, should give a description of the public interest that confines this expression.
9. The expression ‘in the public interest’ directs attention to that conclusion or determination which best serves the advancement of the interest or welfare of the public, society or the nation and its content will depend on each particular set of circumstances. There will, as in the present case, often be competing facets of the public interest that call for consideration when making a final determination as to where the public interest lies and these are sometimes loosely referred to, in my view, as opposing public interests. In the present case, broadly speaking, the competing aspects of the public interest include the benefits conferred on the public by the transparency of government processes and the need for confidentiality in certain circumstances.
…
12. The public interest is not one homogenous undivided concept. It will often be multi-faceted and the decision-maker will have to consider and evaluate the relative weight of these facets before reaching a final conclusion as to where ‘the public interest’ resides. This ultimate evaluation of the public interest will involve a determination of what are the relevant facets of the public interest that are competing and the comparative importance that ought to be given to them so that “the public interest” can be ascertained and served. In some circumstances, one or more considerations will be of such overriding significance that they will prevail over all others. In other circumstances, the competing considerations will be more finely balanced so that the outcome is not so clearly predictable. For example, in some contexts, interests such as public health, national security, anti-terrorism, defence or international obligations may be of overriding significance when compared with other considerations.”
It is tolerably clear, then, that, in determining whether it is contrary to the public interest for the Applicants to remain Australian citizens, the Tribunal is required to carefully evaluate and weigh the evidence presented with a view to ascertaining what course of action best serves the interest or welfare of the broader Australian community. In short, the focus is not only what is in the best interests of the Applicants, their family and associates, but what best serves the advancement of the interests of the Australian body politic. This, of course, necessarily involves an evaluation of the character of the Applicants, their history and the impact that the revocation of citizenship will have on both them, and those close to them. It may well be that, if an applicant is a person who has rehabilitated himself or herself and has made a significant positive contribution to the community, that there is both a private and public interest in that person retaining his or her citizenship. In contradistinction, it may be that an applicant may pose an ongoing threat or possible threat to the Australian community, but his or her citizenship revocation will have negative impacts on both that person and those close to him or her. In such a circumstance, the Tribunal’s focus must necessarily be directed to the public interest, and not the interests of such a person and those close to him or her.
Senior Member Walsh observed in TRHL and Minister for Immigration and Border Protection [2015] AATA 803 at [46] (TRHL1) that the notion of “public interest” had its source in the eligibility criteria in s 21 of the Act.
The Tribunal accepts that, in properly ascertaining what is the “public interest”, the eligibility criteria set out in s 21 are highly relevant. Of particular importance is s 21(2)(h) which provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person:
“(h) is of good character at the time of the Minister’s decision on the application.”
Senior Member Walsh made these observations in TRHL1 (at [46]):
“…the notion of the ‘public interest’ has its source in the eligibility criteria set out in s 21 … which criteria include the requirement that a person is of ‘good character’ at the time of the Minister’s decision on the citizenship application. ‘Good character’ being a reference to the ‘enduring moral qualities’ of a person… Consequently, the question of ‘good character’ is relevant and important in determining whether it is contrary to the ‘public interest’ that a person remain an Australian citizen under s 34(2) of the Citizenship Act. The seriousness and nature of the Applicant’s criminal offences, their duration and the Applicant’s sustained denial of guilt are indicative that the Applicant is not of ‘good character’. The Applicant’s ‘enduring moral qualities’ are indicative that the Applicant is not of ‘good character’: Irving.”
The Tribunal has been assisted by the decision of Deputy President Hotop in Osorio and Minister for Immigration and Citizenship [2007] AATA 59 (Osorio). The applicant, in that matter, was a citizen of El Salvador who migrated to Australia in 1991 as a political refugee. He was granted citizenship in September 1995 but, in September 1996, was convicted of eight sexual offences against a child and sentenced to various cumulative and concurrent terms of imprisonment resulting in an effective total term of imprisonment of eight years.
The applicant, in that matter, conceded that at the time he applied for, and subsequently, was granted citizenship, he was not a person of good character because he had commenced the commission of a series of sexual offences against his step-daughter. The applicant, in that matter, also conceded that he would not have been granted citizenship at that time and that it would have been appropriate to revoke his citizenship upon his conviction or within a reasonable period thereafter. However, it was contended that he had been released from prison for 5 ½ years and had re-established his good character and that it would now not be contrary to the public interest for him to continue to be an Australian citizen.
Deputy President Hotop found (at [35]) that Mr Osorio was not of good character at the time he was granted citizenship, and the key issue, then, was whether he had subsequently become a person of good character. Deputy President Hotop made the following observations:
“37. …although there is no evidence before it regarding the applicant’s conduct during the period of his incarceration from May 1996 to September 2001, there is evidence before it in the form of statutory declarations and letters of support from individuals attesting to his good character, good conduct and strong work ethic in the period since his release from prison in September 2001… The Tribunal also notes the applicant’s own evidence regarding his employment record and vocational retraining in Information Technology since his release from prison…
38.The Tribunal notes, on the other hand, that the applicant, according to his own evidence, did not participate in any sex offender treatment programs while in prison, and has not, since his release from prison, undergone any psychological or other professional counselling regarding his offending behaviour or assessments regarding the risk of his re-offending, although he has, according to his evidence, engaged in meditation sessions with Buddhist monks from 2003 to 2005 which he found very beneficial for the purpose of his rehabilitation… The Tribunal also notes the applicant’s evidence that he has not committed any offences since his release from prison, that he intends not to re-offend, and that he is committed to becoming a better citizen and a valuable member of the Australian community.
39. Having regard, however, to:
•the very serious and utterly repugnant nature of the applicant’s sexual offending, and the substantial period over which it occurred; and
•the absence of any objective professional evidence to the effect that the applicant has been successfully rehabilitated, that his good character has been re-established, and that there is no or, at most, minimal risk of his reoffending;
the Tribunal, notwithstanding the abovementioned evidence supportive of the applicant, is not satisfied that the applicant is presently a person of good character.”
Having determined that it was contrary to the public interest for Mr Osorio to remain an Australian citizen, Deputy President Hotop then addressed the second issue, namely, should the discretionary power to deprive a person or their citizenship be exercised. In that regard, Deputy President Hotop outlined the considerations that the Tribunal should have regard to (at [41] – [45]):
“41…the considerations to which the Tribunal should have regard include the advantages to Australian society on the one hand, and the disadvantages or hardship to the applicant and to other persons on the other hand, which would, or would be likely to, result from depriving the applicant of his Australian citizenship: Re Prasad (above) at 302.
42. The Tribunal accepts the respondent’s submission that the advantages to Australian society which would result from depriving the applicant of his Australian citizenship include:
•removal from the applicant of the status of Australian citizenship which would certainly not have been granted to him had the Department been aware of his very serious offending behaviour at that time;
•the likely deterrence of other applicants, or proposed applicants, for Australian citizenship from committing serious offences, or, having committed offences, from failing to inform the Department thereof.
43.The Tribunal also accepts, however, that depriving the applicant of his Australian citizenship would not only cause him to feel great personal disappointment and sadness but would also effectively deprive him of the freedom to travel from and to Australia. The latter consequence would follow by reason of s 35 of the Migration Act 1958 (Cth) pursuant to which the applicant, at the time of his ceasing to be an Australian citizen, is taken to have been granted an ex-citizen visa (s 35(3)) – that is, a permanent visa to remain in, but not to re-enter, Australia (s 35(1)). The Tribunal notes, furthermore, that, in those circumstances, the applicant would be exposed to the risk of future cancellation of his ex-citizen visa on character grounds, pursuant to s 501(2) of the Migration Act, and consequential removal from Australia. The Tribunal accepts that such a consequence would cause great personal hardship to the applicant and at least substantial emotional hardship to his partner and to his natural daughter, and to a lesser extent to his ex-wife and friends.
44. The Tribunal also notes that the decision to deprive the applicant of his Australian citizenship… was not taken until 23 May 2006 – that is, some 4 years and 8 months after he was released from prison, and some 9 years after he was first informed by the Department that he was liable to be deprived of his Australian citizenship by reason of his criminal convictions in September 1996. In the Tribunal’s opinion that substantial delay on the part of the Department, in the course of which the applicant was seeking to rebuild his life in Australia after his release from prison in the likely expectation that no adverse action was going to be taken by the Department, can only serve to exacerbate the degree of disappointment and hardship caused to the applicant by the eventual decision to deprive him of his Australian citizenship.
45.Having regard to, and balancing, all of the abovementioned considerations, the Tribunal is of the opinion that it is appropriate to exercise the discretionary power… to deprive the applicant of his Australian citizenship. In the Tribunal’s assessment, the considerations referred to in paragraphs 43 – 44 above, which militate against an exercise of that discretionary power, are clearly outweighed by the considerations referred to in paragraph 42 above which militate in favour of an exercise of that discretionary power, including the fact that the applicant, at the very time when he applied for Australian citizenship and was awaiting the outcome of his application, was, unbeknown to the Department, engaged in committing a series of very serious and repugnant sexual offences against his 13-year-old step-daughter – conduct which clearly demonstrated that he was not of good character and that he was utterly unworthy of Australian citizenship, and which, had the Department been aware of it, would certainly have resulted in the rejection of his application. In arriving at that conclusion, the Tribunal notes that the most serious adverse consequences which may result from depriving the applicant of his Australian citizenship – namely, the cancellation of his ex-citizen visa and his removal from Australia – are presently matters of mere speculation and, accordingly, although the Tribunal has had regard to those matters, it has not attached substantial weight to them.”

In NPRT and Minister for Home Affairs [2020] AATA 3641 (NPRT), I observed that, in previous Tribunal determinations, when various Members determined whether it was contrary to the public interest for an applicant to remain an Australian citizen, a number of key factors were identified.
I identified the following factors:
(a)the nature and severity of the offences perpetrated by an applicant;
(b)would an applicant have been granted citizenship if the Department then knew of his or her offending;
(c)did an applicant plead guilty to the offences and general conduct during the criminal proceedings;
(d)whether an applicant has shown understanding of his or her offences and due contrition;
(e)the length of time since the offences were committed and since an applicant’s conviction;
(f)risk of reoffending; and
(g)whether an applicant has re-established his or her good character.
It must be emphasised that these factors have no legislative basis, nor are they exhaustive of matters that can, and, in some instances, must, be taken into account. They are simply a list of factors which, over the years, various Tribunal Members have found to be relevant when assessing the public interest. This list of factors was found to be useful by Senior Member Morris in Trutmann and Minister for Home Affairs [2022] AATA 687 at [127] – [128] and by Senior Member Cremean in Spall and Minster for Home Affairs [2021] AATA 4290 at [70] – [71].
In Osorio, reference was made to s 35(3) of the Migration Act. Section 35 provides for an ex-citizen visa (ECV). Subsection 35(1) provides that there is a class of permanent visas to remain in, but not re-enter Australia, to be known as ex-citizen visas. Subsection 35(3) provides that a person who, on or after 1 September 1994, ceases to be an Australian citizen while in the migration zone, is taken to have been granted an ex-citizen visa when citizenship ceases.
The further implication of holding an ECV was explained by Perram J in Minister for Immigration and Border Protection v Egan (2018) 261 FCR 451 at 456/[16]:
“The consequence for the respondent if his citizenship were revoked was not, as the Tribunal assumed, that he would be repatriated to Ireland, at least not immediately. It was instead twofold: first, he would be immediately taken to have been granted an ex-citizen visa by force of s 35(3) of the Migration Act 1958… secondly, he would then be exposed to the possibility that the Minister might exercise a power to cancel that visa on character grounds under s 501(2) or s 501(3) of the Migration Act or, if not cancelled in that way, it might automatically be cancelled under s 501(3A). In some of these cases, there would have been avenues of appeal which might then have been pursued. It was only after these administrative steps had been taken that a decision would then be made as to whether the respondent should be returned to Ireland...”
It follows that when a person’s Australian citizenship is revoked, the following consequences flow therefrom:
(a)the person is automatically granted an ECV;
(b)the holder of such a visa is entitled to remain in, but not re-enter, Australia;
(c)if the holder of the visa wished to re-enter Australia, that person would need to obtain a resident return visa – see Eidson and Minister for Immigration and Border Protection [2017] AATA 1354 at [57]; and
(d)the visa may be cancelled pursuant to s 501 of the Migration Act either on character grounds or automatically.
THE HEARING
A Hearing was convened in Brisbane on 12 – 14 October 2022.
Mrs Pulini appeared in-person in Brisbane on the first day of the Hearing and, then, remotely for the remaining two days.
Mr Pulini appeared remotely from Palen Creek Correctional Centre.
Mr Matt Black of Counsel appeared for the Applicants and Ms Kate Slack of Counsel for the Minister.
Mr and Mrs Pulini testified and were cross-examined on 12 November 2022.
Mr Bruce Hamilton appeared remotely and gave evidence on 13 November 2022.
Mr Black and Ms Slack gave oral summing up submissions on 14 November 2022.
CONSIDERATION
Introduction
As previously noted, the Tribunal is required to undertake a two-step process.
First, the Tribunal must determine whether it is contrary to the public interest for the Applicants to remain Australian citizens.
Second, if the Tribunal concludes that it is contrary to the public interest for either or both of the Applicants to remain Australian citizens, then the Tribunal must determine if the discretion ought to be exercised to revoke either or both of the Applicants’ Australian citizenship.
Whether it is contrary to the public interest for the Applicant to remain an Australian citizen
Factors to be considered
As explained previously, there are at least seven factors that previous Tribunal Members have identified that usefully can be considered when assessing whether it is contrary to the public interest for an applicant to remain an Australian citizen. Each of these is considered in hereunder.
(a) the nature and severity of the offences perpetrated by the Applicants
The Minister submits, and the Tribunal agrees, that offences involving human trafficking and causing a person to enter into or remain in forced labour, are the antithesis of decency, good conscious, moral and ethical conduct – RCS p. 8 para 23; Transcript (Tr.) 14.10.2022 p. 81.
Mrs Pulini was convicted of trafficking in persons contrary to s 271.2(2) of the Criminal Code. This offence has its genesis in the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children which Australia ratified. To give effect to Australia’s obligations pursuant to this Protocol the Commonwealth Parliament enacted the Crime Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013 (Cth) which commenced on 7 March 2013. The Explanatory Memorandum stated the following – RCS pp. 8 – 9 para 24:
“Slavery and people trafficking are amongst the most abhorrent of all crimes. These heinous offences are major violations of human rights, and may result in traumatic lifelong consequences for victims and their families.”
A reading of both the trial judge’s extensive sentencing remarks, as well as the judgment of the Court of Appeal previously referred to, demonstrate, conclusively, that the Applicants’ committed crimes of the most serious nature. The crimes committed by the Applicants’ fall within the following categories:
(a)trafficking in persons – Mrs Pulini;
(b)harbouring an unlawful non-citizen – the Applicants’;
(c)causing a person to enter into or remain in forced labour – the Applicants’.
These were offences both against the Criminal Code and the Migration Act.
Trafficking in persons carries a maximum penalty of 12 years imprisonment, harbouring has a maximum penalty of 10 years and forced labour has a maximum penalty of 9 years. The seriousness of a crime is usually measured by the maximum penalty prescribed by Parliament. In this matter, the maximum prison terms prescribed illustrate that Parliament views these crimes as very serious.
With respect to the trafficking offence, Judge Clare, when sentencing Mrs Pulini, made these observations – Exhibit 9 p. 350:
“The trafficking conviction means that from the outset, Mrs Pulini planned to create a situation where [MBN] could be exploited. The promise of a contact in immigration was a device. Mrs Pulini never had any intention of helping [MBN] get a long-term visa. Rather, Mrs Pulini intended to make [MBN] more vulnerable by building her hopes for a future in Australia and by concealing the true reason for the confiscation of her passport.”
Her Honour also observed that, by 8 March 2013, the offence of causing a person to remain in forced labour commenced – Exhibit 9 p. 351:
“…The conviction refers to a course of coercive conduct by the Pulinis that took advantage of [MBN’s] vulnerability. Their coercion effectively kept [MBN] trapped and that is exactly what they wanted.”
The Tribunal also agrees with the Minister’s submission that the Applicant’s conduct risked bringing the administration of the Migration Act into disrepute – RCS p. 10 para 29. The evidence before the Tribunal supports the proposition that the Applicants knew that, by bringing Ms MBN into Australia by the provision of misleading information, keeping her in Australia long after her visa expired, taking her passport and exploiting her fear and insecurity, they acted in a premediated and vile manner. The Applicants lied to Ms MBN, exploited her, lied to the authorities, and to their friends and associates.
To sum up, the Applicants’ have been convicted of very serious offences. The offence of trafficking, for which Ms Pulini was convicted, is especially serious and abhorrent. The culpability of the Applicants’ is even more obvious in that they engaged in premediated and carefully planned conduct at the outset, and then continued to breach the laws of the Commonwealth over a number of years. In short, the crimes committed were carried out over an extended period of time. These were not crimes of passion nor crimes that could be downplayed because they occurred over a short period of time when there were exculpatory reasons. These were crimes generated by greed, selfishness and a careless disregard of the rights and humanity of Ms MBN. Moreover, these crimes only ceased when Ms MBN fled from the Applicants’ home. In short, there is no evidence before the Tribunal that suggests that there was any conscious desire of the Applicants’ to end their exploitation of Ms MBN.
(b) would the Applicant have been granted citizenship if the Department then knew of his offending
The Applicants lodged applications for citizenship on 26 May 2008 and were granted Australian citizenship on 2 September 2009.
At the time the Applicants were granted Australian citizenship, they had not been convicted of any offences.
Further, the forced labour offences were committed in the period 8 March 2013 to 19 August 2016, or a number of years after citizenship was granted. This was also referred to by Mr Black in his summing up – Tr. 14.10.2022 p. 70.
In addition, two of the four harbouring offences were committed by the Applicants between 2010 and 2016. The only offences that were committed before citizenship was conferred on each of the Applicants were two harbouring offences and the trafficking offence.
If the Applicants’ offences had been known at the time of their applications for citizenship, it is highly likely that they would have been refused citizenship for failing the good character requirements in s 21(2)(h) of the Act. Clearly, Mrs Pulini’s application would have been refused if the nature of her trafficking offence had been brought to the attention of the Commonwealth.
Some care has to be taken when referring to previous authorities on this point. For example, in Prasad and Minister Assisting the Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 292, the applicant made a false statement in the citizenship application and was subsequently convicted of an offence for providing false statements. In this matter, the Applicants had not been charged or convicted of any offences when they applied for citizenship, and if analogies can be drawn, then the more pertinent authority is WBU and Minister for Immigration and Citizenship [2007] AATA 1143 (WBU). The applicant in WBU applied for, and was granted, citizenship some time before his conviction for child sex offences. Deputy President Hotop observed ([39]/243):
“The Tribunal also accepts that the applicant completed the ‘Application for grant of Australian citizenship’ form, which he lodged with the Department on 26 February 2002, truthfully and correctly, and that he did not thereby impede a proper assessment by the Department of his character (cf Prasad, at 301).”
The same observations can be made about this matter. There is no evidence that either of the Applicants gave false information to the Commonwealth when they applied for Australian citizenship. However, it is also the case that, at the time their applications for citizenship were being processed, they were engaging in criminal acts that would eventually result in convictions and imprisonment.
Did the Applicants plead guilty?
It is tolerably clear to the Tribunal, from the evidence presented, that the Applicants’ cooperation with the prosecuting authorities was economical and was not illustrative of any true contrition for their crimes.
The Tribunal accepts that the Applicants’ elected to have a full committal hearing in the Queensland Magistrates Court – Exhibit 12 pp. 716 – 730.
Further, the legal representatives of the Applicants then attempted to broker a plea deal where Mr Pulini would plead guilty to three lesser charges, whilst the charges against Mrs Pulini would be withdrawn – Tr. 14.10.2022 p. 85.
The Applicants only pleaded guilty to the harbouring charges on the first day of their trial and continued to plead not guilty to the remaining serious charges – RCS pp 12 – 13 para 34. As Ms Slack submitted during her summing up – Tr. 14.10.2022 p. 85:
“…Their plea of guilty to some of the offences happened on the first day of trial, so the extent to which the public resources were saved was minimal in in those circumstances where all of the preparation would have been done and the formal admissions that were made before trial were as her Honour, the sentencing judge said, ‘pragmatic’ rather than an indication of remorse…”
As Ms Slack submitted, Judge Clare did not view the Applicants’ concessions at their trial in a particularly positive manner – Exhibit 9 p. 353:
“There are the pleas of guilty to the harbouring offences, reflecting some cooperation. The case argued by the defence was one of mutual benefit, but it was clearly rejected by the jury, through the verdicts relating to forced labour. It follows the Pulinis harboured [MBN] for the purpose of exploiting her.
Some cooperation can be identified in respect of the trial. The trial was shortened a bit with some formal admissions. Those appear to have been pragmatic, rather than an indication of remorse. They were limited to those aspects that were corroborated or could be proved outside of [MBN’s] evidence. Mr Pulini participated in an interview with a Federal agent, essentially admitting the harbouring offence but denying the other charges. I have seen no evidence of remorse in respect of the years of [MBN’s] life that were restricted and impacted.”
At each stage of the committal and trial process, the Applicants fought a tactical battle in order to minimise the charges brought against them, and only made concessions when it was either tactically necessary or advantageous to do so.
One telling example of this, was their opposition, through their legal representatives, to the Crown’s application for Ms MBN to give evidence at the trial by means of closed-circuit television – Exhibit 12 pp. 742 – 745. Mr Mark McCarthy of Counsel for the Applicants made the following submissions – Exhibit 12 pp. 744 – 745:
“11.This is a case that turns wholly on the evidence of the complainant. There are few instances in which the necessity of testing and scrutinising the character and reliability of a witness is more significant. Any possibility that cross-examination of such a witness would be rendered ‘less effective’ constitutes a prejudice to the accused that should not be lightly countenanced.
12.The situation here would be different if the Crown pointed to any particular medical evidence or specific traumatic episodes (with documented sequelae) that would materially affect the complainant's wellbeing were she to give evidence in the courtroom. They have not. Nor could they, given the sum of the evidence contained in the complainant's statement and the nature of her evidence at committal.”
Judge Clare determined that Ms MBN could give her evidence remotely – Exhibit 9 p. 151.
The Trial itself took five days from 8 to 12 April 2019, with evidence being received on the first three days. Only three persons were called to give evidence – Ms MBN, the arresting Police officer and a friend of the Applicants’ family.
The Tribunal was provided with a full transcript of the Trial – Exhibit 9 pp. 132 – 360. The examination in chief of Ms MBN commenced at 2:20pm on 8 April 2019 and concluded at 4:23pm on the same day – Exhibit 9 pp. 152 – 184. The cross-examination of Ms MBN commenced at 10:32am on 9 April 2019 and concluded at 1:47pm the same day – Exhibit 9 pp. 187 – 242. In short, Ms MBN was required to undergo two days of questioning which, as Ms Slack properly submitted, resulted in her being subjected to “the stress and ordeal” of giving evidence before a Judge and Jury – RCS p 13 para 36, Tr. 14.10.2022 p. 85.
In short, the evidence suggests that the Applicants placed little regard on the welfare of Ms MBN during the course of the legal proceedings. This lack of insight was highlighted in the following exchange between Ms Slack and Mrs Pulini on the first day of the Hearing – Tr. 12.10.2022 pp. 14 – 15:
“After you were arrested and before you went to trial, you elected to proceed to a committal hearing - - -?---Yes.
- - - in advance of the actual trial?---Yes.
[MBN] was cross-examined during that committal hearing?---Yes.
The act of needing to be cross-examined exposed [MBN] to further harm, didn’t it? ---Yes.
Yes and you could have prevented that by either electing not to have a committal hearing or not to have cross-examined her at the committal hearing, couldn’t you? ---Yes.
So that you chose to proceed in a way – in the way that you did, demonstrates that at that time you were not acting in a way that prevented further harm to [MBN], were you?---Yes. No. Sorry, I got – just this - - -
That’s all right, I’ll ask you again. At that time, by choosing to cross-examine her at the committal and have her go through that process, you chose to expose her to that harm, didn’t you?---I guess yes.
Yes?---Which I did.
It demonstrates at that time, doesn’t it, that you didn’t have a great deal of insight into your conduct or the consequences of it on [MBN]?---Yes, yes.
You pleaded guilty to some of the charges against you but not all of them?---Yes.
You elected to go to trial as a consequence of pleading not-guilty on some of them? ---Yes.
So as a result of that [MBN] was required to give evidence and be cross-examined again?---Yes.
That you chose to proceed in that way, demonstrates again that you were not acting in a way that limited the harm to [MBN], were you?---I guess, right.
It’s not demonstrative of you demonstrating any insight into your conduct or its consequences on [MBN], is it?---Yes.”
Mr Pulini testified that he did not appreciate that forcing Ms MBN to be cross-examined would possibly result in further harm to her – Tr. 12.10.2022 pp. 32 – 33:
“Now, the act of her needing to be cross examined at that committal hearing, that exposed [MBN] to further harm, didn’t it?---I didn’t appreciate it. I thought it was just… a process through the legal system… I didn’t for once think that it’s going to cause her any harm at all. I thought it was just trying to get down the – you know, to get – it’s just the process.
…
Well, it wouldn’t have taken much imagination to think that if [MBN] had to be cross examined, that could be difficult for her?---I would say so. I would say so, and no, it’s not a good experience for anyone to go through.”
Mr Pulini continued to defend his not guilty pleas and putting Ms MBN through the trauma of cross-examination on the basis that he was simply defending his rights, as advised by his legal representatives.
It is patently clear to the Tribunal that, at the time of the trial, the Applicants’ paid scant regard for the harm that the legal process was causing to Ms MBN. It is also clear from the testimony that Mrs Pulini, at least, showed some contrition at the Hearing, whereas Mr Pulini continued to show scant regard to the trauma caused to Ms MBN.
Understanding and contrition

Remorse has long been held to be an indicator of rehabilitation of character in citizenship refusal cases. Reference can be made to Shukure and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 63 (Shukure). This was a refusal of citizenship matter where the applicant had been convicted of the offence of an aggravated act of indecency with a person under 16 years of age. The victim was a boy under 10 years of age. The sentencing judge commented that the applicant had not shown any contrition for what he did to the victim. That state of affairs persisted, and Senior Member Allen made the following observations (at [11]):
“Before me the Applicant still denied the essential facts of the offence. Notwithstanding that, part of the Crown’s evidence was the finding of semen consistent with the offender on the complainant and his clothing, in a statement to an officer of the Department of Immigration considering whether his refugee visa should be cancelled following conviction and sentence, the Applicant claimed that all he had done was hug the boy. To me he stated all he had done was hug and kiss the child. I am satisfied this evidences a lack of contrition and awareness of the enormity of his crime. To my mind it cannot be claimed on behalf of the Applicant that he has been rehabilitated while he still refuses to acknowledge the facts of his crime.”
In this matter, Judge Clare, when sentencing the Applicants’, observed no evidence of remorse – Exhibit 9 p. 353:
“I have seen no evidence of remorse in respect of the years of [MBN’s] life that were restricted and impacted.”
The Tribunal accepts that, at the time the Applicants were sentenced in 2019, they lacked a proper understanding of the seriousness of their offending and also were not truly contrite for their criminal behaviour. The question, however, is whether they now have an understanding of the seriousness of their criminal behaviour and are now remorseful and contrite.
It is necessary to deal first with Mrs Pulini.
The Tribunal has been provided with a Statement of Mrs Pulini dated 26 February 2021 – Exhibit 1A T16 pp. 209 – 219. The following extracts from Mrs Pulini’s statement provide an eloquent testament to her state of contrition – pp. 215 – 219:
“82.We knew it was wrong that she did not have a visa. We have since learnt and now have an understanding that it was in fact a criminal act for us to have her live with us when we knew she did not have a visa.
83. I am aware from the criminal case that Bale was afraid she may be deported or arrested for being without a visa. She did not discuss these fears with us and I did not perceive any such behaviour that may have reflected this. In fact, she seemed happy when she was living with us.
84.It is a very big regret of mine that Keli and I never sought to resolve her visa situation, and that we did not approach her or ask her how she was managing this. I realise now being in this situation would have been fearful and stressful for her. I wish I had thought more about her position.
…
86.…We saw her as one of the family…
87.We did not see her as a servant or employee…
88.We paid money to Bale regularly while she lived with us but I did not regard this as her wages. Rather, it was like pocket money to spend on herself…
89.It was not in my mind that she was underpaid because I did not see it as a salary…
…
94. Looking back, we did not really consider how being without a visa affected her. We did not take care to ask how she felt, and whether she was happy with us. She seemed happy and never complained and that is as much as we thought about how she was feeling living with us. I realise that deep down, she felt trapped being without a visa.
95. If I could turn back time, I would act differently regarding Bale’s situation. I would have sent her back before her visa expired and that we have to go with what her visa says. We had no intention doing any harm to her, she was and still is a person whom I love. Kell and I both hope we can make compensation to Bale for what occurred. Civil litigation was initiated by her and the matter is the process of being negotiated with the aim of settlement…
…
110. I have a much healthier respect for immigration law than I did before. If anyone spoke to be about travelling to Australia again, I would encourage them to seek advice from a migration lawyer or agent and reinforce to them that everything has to be done through proper channels.”
Under cross-examination by Ms Slack, Mrs Pulini agreed that Ms MBN had commenced civil proceedings against the Applicants’ seeking compensation for the wages that were never paid, as well as interest payments and civil penalties. In total, the amount claimed by MBN was approximately $500,000, but the matter was settled with a payment of $120,000. According to Mr Pulini, the settlement sum was to be paid in three separate instalments. By 7 July 2021, $110,000 had been paid, with the final $10,000 due to be paid in December 2022 – Tr. 12.10.2022 pp. 12 – 13, Exhibit 4 p. 55 paras 14 – 15.
At the Hearing, the following exchange occurred between Ms Slack and Mrs Pulini – Tr. 12.10.2022 pp. 13 – 14:
“You could have agreed to pay her more, couldn’t you?---Yes.
For example, you refer in your statement to having $140,000 in your superannuation?---Yes.
You could have paid her some or all of that?---Yes.
You also could have entered into a payment plan, for example, that spanned well into the future even if it only meant taking a small amount of any income you made in the future each week?---Yes.
…
If you truly wished to see [MBN] recompensed for the monetary harm to her that was caused as a consequence of your offending, you could have paid her an amount that was much closer to what she was claiming against you, couldn’t you?---Yes.
Part of your case before the tribunal, as I understand it, is that you’re a generous person and that’s part of your character but isn’t it the case that when rubber hit the road you weren’t truly generous towards [MBN], were you?---Yes.
Do you mean no?---No. Sorry. I weren’t that generous.
That demonstrates – that’s a true reflection of your character, isn’t it?---Because of that, yes.”
The Statement of Mrs Pulini set out at [116] was made just as she began therapy with Ms Rebecca Geddes, Health Psychologist and Criminologist. Mrs Pulini underwent approximately six therapy sessions with Ms Geddes between 9 February 2021 and 6 April 2021, together with two therapy sessions in June 2022 – Exhibit 3 p. 9 para 21.
In a Supplementary Statement dated 7 July 2022, Mrs Pulini claimed that she now thought differently about her actions towards Ms MBN – Exhibit 3 p. 10 para 22:
•“I saw Bale as part of my family and loved her, but we did not treat her as she should have been treated. Often I have been challenged in this though – if I saw her as my family, why did I not try to fix her migration situation? I would never have let our children go without a visa and take these risks, but I was obviously prepared to do this with Bale. It was my responsibility to take proper steps for her visa. She was an adult, but we knew how much she depended on us and trusted we would look after her. We weren't looking to the future, we never thought about the consequences of doing this and did not consider the impacts on Bale.
•I have said that I thought Balebenefited from her situation with our family in Australia. But I understand now how wrong I was. I was comparing her situation to what she would have had back in Fiji or Tonga, and telling myself we were giving her a better standard of living. But this was not a fair comparison, and she did not have the same opportunities that myself and lsikeli and our children had, such as free lifestyle, opportunities for advancement, education and access to health care. My husband and I loved our life in Australia, we saw this as a land of opportunities, but we pursued this without consideration for Bale and her needs. I was focusing on the positives which were to our benefit, without considering the negatives for Bale.
•I thought Bale was free in her choices and free to come and go as she pleased but I see now she was not free. She was living in fear of deportation and felt she had no way out. I understand she could not do anything to improve her situation or change her life. We were responsible for her as her employers but she was also dependent on us for food and accommodation and the income we paid to her. She was under our control and we took advantage of this.
•I accept Bale was very unhappy when she was with us. I was not aware of this at the time, but I should have been. She behaved differently around our children, she was much warmer and more open with them, but she was quiet around us. I understand now she was scared of us and was afraid of being deported.”
The Tribunal also had the benefit of being provided with a report of Ms Geddes dated 7 April 2021 – Exhibit 1A T21 pp. 230 – 233. Ms Geddes emphasised that this was a treating practitioner’s report and did not constitute an independent objective medico-legal assessment – Exhibit 1A T21 p. 230. The Tribunal has considered Ms Geddes’ report with that important caveat in mind.
Ms Geddes noted that, although Mrs Pulini initially gave the impression of “being open and forthcoming”, she initially “rationalised, minimised and justified her actions”. Ms Geddes facilitated intervention around the factors that contributed to Ms MBN’s powerlessness and Mrs Pulini’s increased control over her. Ms Geddes noted that Mrs Pulini found these conversations challenging because “they contradicted the idealised view of herself and distorted perspective that she did the victim ‘a favour’. With discussion, Mrs Pulini acknowledged a power imbalance in favour of herself and recognised the role it played in the offending” – Exhibit 1A T21 p. 231.
It was noted by Ms Geddes that, during the commission of the offences, Mrs Pulini held the distorted view that she was acting charitably. Mrs Pulini was of the view that Ms MBN was “okay”, despite evidence to the contrary, and held an idealised view of herself as a Christian and member of the community. She was of the opinion that she was doing Ms MBN a favour, and these views “resulted in a disregard for social conventions and moral responsibilities not to exploit/do no harm.” Mrs Pulini became focused on increasing prosperity for her family and “developed a ‘me, me, me’ attitude” – Exhibit 1A T21 p. 232.
Ms Geddes provided the following summing up about the benefits of the therapy sessions for Mrs Pulini – Exhibit 1A T21 p. 233:
“Mrs Pulini reported benefit from treatment and has addressed treatment needs related to, offence responsibility, offence supportive attitudes, victim awareness and empathy, problem-solving and release plans. She recognised the role thinking errors played in the offending and sympathised with the victim by identifying psychological, financial, and relational implications to her because of her wrongdoing. She is observed to have made progress in treatment. There has been an attitudinal shift regarding her perception of events, responsibility for the offending and recognition of accountability. Should further treatment be necessary she is a suitable candidate to do so in the community.”
Mrs Pulini underwent a further two therapy sessions with Ms Geddes on 21 – 22 June 2022. Both sessions were of 60 minutes duration. Subsequently, Ms Geddes prepared a report dated 5 July 2022 – Exhibit 3 pp. 52 – 53.
It was noted that Mrs Pulini recognised that her offending occurred “in the context of a familiar and trusted relationship and that she took advantage of the victim’s desire to stay in Australia”. In addition, Mrs Pulini agreed that Ms MBN was a vulnerable person and that she “held a position of power and influence” – Exhibit 3 p. 52 para 5.0.
Ms Geddes also opined that Mrs Pulini demonstrated insight into the “thinking errors” and “cognitive distortions” that facilitated her offending – Exhibit 3 p. 53 para 6.0. The following conclusions and recommendations were made – Exhibit 3 p. 53 paras 9.0 – 11.0:
“9.0Mrs Pulini has changed and challenged the thinking errors that plated a role in the offending. She understood that the victim was a vulnerable person who was disadvantaged further by the offending. There were expressions of remorse and regret, and awareness about the consequences.
10.0Mrs Pulini named personal motivators for wanting to change, including making amends and re-establishing a sense of self which is consistent with the person she would like to be.
11.0 Mrs Pulini has made progress in treatment. Treatment will be terminated at this time.”
Mrs Pulini was also examined and assessed by Mr Bruce Hamilton, Forensic Psychologist, on 31 August 2021 for 90 minutes and a report dated 8 September 2021 was prepared – Exhibit 1A T22 pp. 235 – 245. Mr Hamilton was provided, inter alia, with the first report of Ms Geddes.
Mrs Pulini informed Mr Hamilton that she had not committed the offences with a selfish desire to enhance her family’s lifestyle, but rather, in an attempt to show kindness to Ms MBN who had expressed a desire to remain in Australia. However, Mrs Pulini acknowledged that “these desires were ultimately unfounded and involved significantly flawed thinking” – Exhibit 1A T22 p. 240. Mr Hamilton made the following observations – Exhibit 1A T22 pp. 240 – 241:
“4.2.2Mrs Pulini noted that with the benefit of hindsight, there were a number of steps or choices she wished she and her husband had made. First and foremost, she noted she should have simply abided by the law and sought to ensure the victim returned after visa expiration. Regardless of motivations for her children, the victim and or the family unit, she expressed ‘following the law would have prevented everything’. Mrs Pulini further identified that even if the visa had been overstayed due to either her and or the victim’s actions, there was a clear necessity or requirement on her to check in and or seek to understand the victims vulnerabilities and concerns from conversation, rather than making inferences from behaviour. She conceded that her observations were inaccurate, and perhaps selectively observed.”
At the time of this report, it appears that Mrs Pulini was still grappling with the magnitude of her criminal behaviour, and finding the process of gaining insight into her criminality, upsetting. Mr Hamilton summed this situation up as follows – Exhibit 1A T22 pp. 241 – 242:
“4.3.3 At assessment, it was evident Mrs Pulini continued to grapple with some issues surrounding motivations, or perhaps of greater significance ‘perceived motivations’, for the offences. She expressed the opinion asserted that she and or her husband sought out to harm the victim, with selfish disregard, was difficult to accept. She was clear to acknowledge wrongdoing and verbally recognised victim impacts, whilst also maintaining the offences were not motivated with any malevolence. Given this position, it remained upsetting to hear contrary views, though she acknowledged why the perspective was taken. Mrs Pulini gave statements indicative she had developed insight into her offending.”
Later, in his report, Mr Hamilton, again, opined that, at the time of the offending, Mrs Pulini held the distorted view that she was acting charitably, she was the victim, that she was kind to Ms MBN, and that her children had benefitted from the arrangement the Applicants’ had with Ms MBN – Exhibit 1A T22 p. 243 para 6.1. However, with the effluxion of time and the benefit of professional assistance, Mr Hamilton was of the opinion that, by the time he assessed her, Ms Pulini had developed insight into her criminality – Exhibit 1A T22 p. 243 para 6.3:
“She demonstrated insight and awareness now that regardless of the wishes she, her children and husband held, to continue to have a relationship with the victim, and indeed engage in the offending behaviour was morally and legally wrong. She further accepted that it had been a convenient belief to think they were providing kindness to the victim by assisting her to travel to and remain within Australia. She accepted by doing so she disregarded law and failed to consider the repercussions and trapped consequence for the victim…”
Mr Hamilton, again, examined and assessed Mrs Pulini on 25 March 2022, and prepared a report dated 29 March 2022 – Exhibit 5 pp. 81 – 87.
It is only necessary to point out that Mr Hamilton opined that Mrs Pulini had, by March 2022, demonstrated insight into her offending and remorse for her offences. With respect to the former, Mr Hamilton made these observations – Exhibit 5 p. 84 para 3.3.1:
“3.3.1During interview Mrs Pulini demonstrated insight into the benefits she and her husband attained from the offences. She elaborated on previous interview statements stating that via their offending, they didn’t have to pay for childcare, due to the labour and care provided by the victim. She acknowledged the offending enabled both her and her husband to work full time positions, which would otherwise have been unavailable to them unless they paid childcare costs. Mrs Pulini stated that had they not offended, a significant percentage if not all her income would have been dedicated to childcare expenses.”
With respect to remorse for the offences, Mr Hamilton observed – Exhibit 5 p. 85 para 3.4.1:
“3.4.1 Mrs Pulini expressed both regret and remorse for her actions. She repeated on a number of occasions that she wished she could change her past or offer advice to her earlier self. She reflected she wished she’d understood earlier the implications of her offences, rather than thinking ‘she’ll be alright, she’ll meet someone and have a good life here’ as she maintained she had thought at the time. Mrs Pulini stated she now appreciated how vulnerable the victim was in the situation she and her husband created, and that it was their responsibility to address and resolve the issues. She further regretfully noted, ‘the cup of water is already spilt, and I can’t undo it’.”
Ms Slack, conceded that Mrs Pulini was “more advanced” on the road to remorse than her husband, and noted that, Mr Hamilton, in his report of 29 March 2022, observed: “Mrs Pulini finally appreciates the harm caused to MBN as a consequence of her conduct” – RCS pp. 19 – 20 para 58. Having listened to Mrs Pulini give evidence and having considered the reports of Ms Geddes and Mr Hamilton, the Tribunal agrees with Ms Slack that Mrs Pulini has recently demonstrated both insight and remorse. It also should be noted that Ms Slack submitted that, while commendable, this recent contrition “cannot outweigh any of the other public interest considerations that make it contrary to the public interest for Mrs Pulini to continue to hold Australian citizenship” – RCS pp. 19 – 20 para 58.
Attention now must be directed to Mr Pulini.
The Tribunal also has the benefit of a Statement of Mr Pulini dated 19 February 2021 – Exhibit 1B T14 pp. 208 – 218.
It is tolerably clear that, at the time Mr Pulini made this Statement, he manifested both lack of insight and also little contrition for his criminal actions.
First, with respect to Ms MBN remaining in Australia after her visa expired, Mr Pulini provided the following explanation – Exhibit 1B T14 p. 214:
“67. I do not have any explanation for why she overstayed her visa. I knew it was not correct and that she was required to have a visa. I recall we did have some discussions with her in the lead up to her visa expiring but ultimately did not end up doing anything about this.
…
70. Looking back, I accept we did not think of Bale’s feelings in this or the risks that she faced, including deportation…
…
72. Her situation was a continuation of the same informal arrangement we first conceived in Tonga. We did not see her as our servant or an employee. We continued to see her as one of the family and enjoyed a positive relationship with her. We regarded her situation as one which was mutually beneficial. She would look after the children while we were at work and cook the evening meal. We paid for her food and board in Australia.
73. Because we did not see her as our employee, we never thought of her as being on a salary. We paid her what we could afford, given our four children and our mortgage, to spend on herself as an allowance. I regarded this as tokens of our appreciation for what she was doing for us. This was more than what she was paid in Tonga but we accept this was well below Australian standards and she should have been better paid for what she did for us and our family.”

In addition to positive considerations advanced by the Applicants’, the Tribunal’s attention was drawn to the negative implications flowing from the grant of an ECV, and, in particular, the operation of s 501(3A) of the Migration Act.
It was quite properly submitted by Ms Slack that revocation of the Applicants’ citizenship will not result in them being automatically removed or deported from Australia – RCS p. 33 para 90. It was further submitted that any subsequent decision-making is a matter of pure conjecture, and the Tribunal should only consider the immediate legal consequences of its decision. In support of this proposition, reference was made to various observations of Snaden J in Galuak v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 798 (Galuak) at [67]. It should be noted that those observations were made in the context of the obligation to consider visa cancellation implications when considering the public interest, as distinct from the discretion.
Ms Slack also correctly pointed out that both Mr and Mrs Pulini hold ECV’s which have not been cancelled. Further, it was submitted that the Tribunal cannot presuppose when any decision under s 501 will (or may) be made. Consideration of future decision-making is “purely speculative and the Tribunal should not deal in hypotheticals or base its decision on entirely speculative matters” – RCS p. 34 para 92.
Attention needs to be given to the observations of Snaden J in Galuak with respect to the obligation to consider visa cancellation implications in the context of the discretion. His Honour made the following observations – at [78] – [83]:
“78.The applicant submits that the Minister and the Tribunal, when considering whether or not to exercise the discretion to revoke his citizenship under s 34 of the Citizenship Act, were each required to consider the implications of any subsequent cancellation of the visa that he would thereafter be deemed to hold under s 35 of the Migration Act. That obligation was said to arise in either or both of two ways: first, because those implications were consequences of revocation upon the consideration of which the subject matter, scope or purpose of the Citizenship Act required, by implication, that account be taken; or, second, because the applicant identified them as reasons that should incline against the exercise of the discretion.
79.I have already addressed the first aspect of that contention (albeit in the context of assessing the requirements of the public interest under s 34(2)(c) of the Citizenship Act, rather than the broader discretion to revoke). For reasons equivalent to those explored above (in that public interest context), there is nothing about the subject matter, scope or purpose of the Citizenship Act that implicitly requires decision makers to consider, before exercising the discretion conferred by s 34(2), the potential implications of visa cancellation.
80. Such an obligation does, however, arise insofar as those implications are expressly advanced as matters that should inform the exercise of the discretion. That proposition was not obviously in contest and I would, in any event, readily accept it.
81. To what extent, then, did the applicant here nominate the potential implications of visa cancellation as matters that should inform the Minister’s — and, later, the Tribunal’s — discretion to revoke his citizenship?
82.The submissions that the applicant advanced in opposition to the revocation of his citizenship have already been summarised (above, [24]). By way of elaboration, two matters should be highlighted. First, the applicant put squarely the prospect that, if his citizenship were revoked, the ex-citizen visa that he would thereupon be deemed to hold would be liable to immediate cancellation, in consequence of which he would then be subject to immigration detention. Second, the applicant did not suggest — either before the Minister or the Tribunal — that he would be returned to South Sudan in breach of Australia's obligations of non-refoulement. On the contrary, although he alluded to the dangers that might attend his return, he nonetheless submitted that no such removal would take place and that, consequently, his detention would be ‘indefinite’. He made no mention of the possibility that his return to South Sudan would offend Australia's obligations of non-refoulement.
83.Both the Minister and the Tribunal were obliged to consider the applicant's submission before deciding whether or not to exercise the power of revocation under s 34(2) of the Citizenship Act…”
The nature of the consideration required was also dealt with by his Honour – at [87] – [89]:
“87.Inherent in the applicant's contention is the notion that the Minister and the Tribunal were each obliged to form views as to whether or not the implications to which he had adverted would in fact arise in the event that he were subjected to the process of visa cancellation; and, to the extent that they would, to form a view as to whether or not they should sound as reasons not to exercise the discretion that s 34(2) of the Citizenship Act conferred. In other words, his contention proceeds upon the assumption that the Minister and the Tribunal were obliged either to agree or disagree with what he had advanced.
88.Respectfully, that submission must be rejected. Consideration of what the applicant had advanced did not require that any such views be arrived at. It was open both to the Minister and, later, to the Tribunal to resolve that the implications of visa cancellation, whatever they might be, were not matters that should bear upon the exercise of their discretion under the Citizenship Act. It was open to the Minister and the Tribunal to proceed on the basis that those implications ‘… could be assessed to an extent and in a manner that they considered appropriate and sufficient to deal with the claim, namely in accordance with the specific mechanism chosen by Parliament…’: Plaintiff M1, 430 [38]. In the present case, that mechanism is provided for by the Migration Act (at least by s 501CA, and more broadly by the possibility that the applicant might apply for and be granted a protection visa).
89.That is what both the Minister and the Tribunal appear here to have done. At the very least, no inference can properly be drawn to the contrary (as the applicant’s success on this contention necessarily requires). Rather than make assessments of their own as to the veracity and significance of what the applicant had put to them (specifically regarding his fears about indefinite detention and the dangers of returning to South Sudan), the Minister and the Tribunal preferred instead to allow those analyses to be deferred until such time as they might arise for consideration under other — and, arguably, more tailored — statutory processes. Doing so did not involve any failure to consider that which the applicant had advanced.”
At first blush, there is much force in Ms Slack’s submissions, and, as Snaden J observed above, it is not necessary (or desirable) to engage in hypothetical exercises which are inherently speculative.
However, these submissions do not properly factor in the operation of s 501(3A), the implications of which are not hypothetical, but actual. Subsection 501(3A)(b) provides that the Minister must cancel a visa granted to a person if the person is serving a sentence of imprisonment, on a full-time basis, in a custodial institution.
Ms Slack submitted with respect to s 501(3A)(b) – RCS p. 34 para 92:
“…The Tribunal cannot presuppose when any decision under s 501(3A) will be made, as the power under s 501(3A) has not been exercised over the course of the past 12 months, despite the power being enlivened. Whether, and when, that power may be exercised is entirely speculative and is not enlivened if the Applicants' are on parole…”
The Tribunal is not persuaded by this submission. Subsection 501(3A) is not drafted in discretionary terms. The Minister must cancel a visa if the objective circumstances outlined in s 501(3A) exist. In this matter, the Applicants’ are now the holders of a visa (as their citizenship has been revoked), have a substantial criminal record (as defined) and are presently in criminal detention. All the circumstances that activate the operation of s 501(3A) are present. The fact that successive Commonwealth Ministers have not utilised their power under s 501(3A) is, no doubt, founded in policy considerations that are beyond the purview of this Tribunal. It is speculative to assume that this power may not be exercised at all with respect to the Applicants or may be activated at any particular time in the future. The Tribunal proceeds on the assumption that the Ministerial power under s 501(3A) to cancel the Applicants’ visa exists and will be activated whilst they remain in criminal detention. To proceed on any other basis would, itself, be a speculative endeavour.
The background to s 501(3A) and how it fits within the legislative scheme of cancellation of visas in the Migration Act has been explained in a number of Federal Court decisions. Reference can be made to the helpful discussion of Burley J in XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 619:
“66.On the one hand, sections 501(3A) and 501CA, as well as s 501BA, formed part of a suite of changes introduced with the passing of the Australia, House of Representatives, Migration Amendment (Character and General Visa Cancellation) Bill 2014 (2014 Bill). In the Explanatory Memorandum to the 2014 Bill, it was said of s 501(3A):
‘32. This item ensures that the visa of a non-citizen who is in prison and objectively does not pass the character test because they have a substantial criminal record (as set out in subsection 501(7) of the Migration Act and amended by items 13 to 15 of this Schedule) or because of a sexually based offence involving a child (as set out in new paragraph 501(6)(e) inserted by item 12 of this Schedule) must be cancelled without notice to the visa holder.
33. A person whose visa has been cancelled under subsection 501(3A) of the Migration Act is able to seek revocation of this decision under new section 501CA inserted by item 18 of this Schedule. Merits review of a decision of a delegate not to revoke the decision to cancel the visa is available under new paragraph 500(1)(ba) inserted by item 4 of this Schedule.
34. The intention of this amendment is that a decision to cancel a person's visa is made before the person is released from prison, to ensure that the non-citizen remains in criminal detention or, if released from criminal custody, in immigration detention while revocation is pursued.’
67.In the course of the Second Reading Speech introducing the 2014 Bill, the then Minister said that s 501(3A) was calculated to ensure that “noncitizens who pose a risk to the community will remain in either criminal or immigration detention until they are removed or their immigration status is otherwise resolved”: Australia, House of Representatives, Parliamentary Debates (Hansard), 24 September 2014 at 10328; see also Falzon at [49].
68.Relevantly, the Minister also said (at 10327):
‘The third key measure this bill seeks to introduce is mandatory visa cancellation under section 501 of the act where a noncitizen is serving a full-time sentence of imprisonment in a custodial institution and they are found to objectively not pass the character test on the basis of, for example, having been convicted of an offence or offences and sentenced to a term of imprisonment of 12 months or more, or having been convicted of, or found to have been guilty of, or had a charge proved against them for a sexually based offence involving a child. Under this process, a noncitizen will have their visa mandatorily cancelled without prior notice of an intention to cancel a visa, with a notification of the cancellation decision provided after the fact. Upon notification, the noncitizen will be provided with the opportunity to seek revocation of the cancellation decision. Where a decision is taken by a delegate to not revoke the decision, the former visa holder will have access to merits review. This will be a streamlined process which will deliver the key benefit of providing a greater opportunity to ensure noncitizens who pose a risk to the community will remain in either criminal or immigration detention until they are removed or their immigration status is otherwise resolved.’
(emphasis added)
69.It is apparent that a legislative purpose of s 501(3A) is to establish a scheme whereby a person in custody who does not pass the character test will not be released from detention until that person is removed from Australia or their immigration status is otherwise resolved: Falzon at [50]; Second Reading Speech at 10328. It is to be observed that such a decision can be made without notice to the visa holder. However, by s 501CA the person has an ability to request the Minister to revoke the cancellation and, by operation of s 500(1)(ba), an ability to seek a merits review from the Tribunal with respect to an unfavourable decision of a delegate of the Minister under s 501CA(4). This is apparent from the language of s 501CA itself which provides that after the person whose visa has been cancelled has made representations in accordance with s 501CA(4)(a), the Minister, a delegate or the Tribunal may revoke the visa cancellation made under s 501(3A).
70.In my view, the differences outlined at [61] above are explained by reference to the legislative purpose of the scheme established by ss 501(3A) and 501CA. First, whilst the considerations relevant to assessing the character test under s 501(3A) are narrower than those applying under s 501CA, this is explained by those chosen factors being able to be, at least in theory, assessed objectively by the Minister or a delegate in circumstances where the visa holder is not on notice of the cancellation decision: see Explanatory Memorandum at [32]. Secondly, given the visa holder is on notice and must actively participate in a decision under s 501CA(4), it makes sense that this decision takes into account “another reason” why revocation is appropriate, the visa holder being able to make submissions regarding matters favourable to them. Thirdly, the fact that there is no discretion in s 501(3A), but there is in 501CA(4), can also be explained by the intention that the power under s 501(3A) is only to be used by the decision-maker in objective circumstances, such that there is no need for discretionary considerations to be taken in account. Further, the mandatory character of the power in s 501(3A) is consistent with the purpose of ensuring the protection of the community by mandating that they are kept in custody until a time when further consideration can be given to their immigration status on review under s 501CA. Fourthly, the fact that the power under s 501(3A) can only be exercised when a person is currently serving a sentence of imprisonment is consistent with the purpose of the provision being to ensure that a visa holder who is already in custody remains there until their immigration status can be determined.”
As his Honour explained, a person whose visa is cancelled pursuant to s 501(3A), has, nonetheless, procedural rights pursuant to s 501CA. The exercise of the cancellation power under s 501(3A) does not result in automatic deportation; however, as his Honour also pointed out, it is designed to ensure that a person in such a situation will remain in detention until a final decision is made. In the case of Mr and Mrs Pulini, should the Minister exercise the cancellation power in s 501(3A) they will, subject to the activation of s 195A, continue to remain in detention for an indefinite period of time.
Ms Slack, however, submits that if that scenario comes into play, the Applicants’, nonetheless, can apply for a visa under s 195A of the Migration Act – RCS pp. 34 – 35 para 93.
Section 195A grants to the Minister, personally, a power to grant to a person who is in detention a visa if “the Minister thinks it is in the public interest to do so” – s 195A(2).
Ms Slack drew the Tribunal’s attention to the High Court decision of Plaintiff M79/2012 v Minister for Immigration and Citizenship (2013) 252 CLR 336. His Honour Justice Gageler provided the following helpful explanation of the background and operation of s 195A:
“108. Section 195A was inserted into Pt 2 of the Act in 2005 as part of a package of amendments the purpose of which was ‘to provide greater flexibility and transparency in the administration of the detention of persons known or reasonably suspected to be unlawful non-citizens’. The explanatory memorandum for the amending legislation expressed an intention that the section ‘will be used to release a person from detention where it is not in the public interest to continue to detain them’ and that ‘[i]n the exercise of this power the Minister will not be bound by the provisions of the [Act] or regulations governing application and grant requirements’ and ‘will have the flexibility to grant any visa that is appropriate to [an] individual's circumstances’.
109.Section 195A is expressed to apply only to a person who is in detention under s 189 (s 195A(1)). It provides (s 195A(2)):
‘If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).’
It provides further (s 195A(3)):
‘In exercising the power … the Minister is not bound by Subdivision AA, AC or AF of Division 3 of [Pt 2] or by the regulations, but is bound by all other provisions of [the] Act.’
It states that the power can only be exercised by the Minister personally (s 195A(5)), and that the Minister does not in any circumstances have a duty to consider whether to exercise the power (s 195A(4)). It goes on to require the Minister promptly to inform each House of Parliament of the grant of a visa and of the reasons for that grant including in particular the Minister's reasons for thinking the grant to be in the public interest (s 195A(6)-(8)).
110.Preconditions to the exercise of the power conferred by s 195A to grant a visa of a particular class to a person who is in immigration detention are that: (a) the Minister has decided to consider whether to exercise that power and (b) the Minister, having considered whether to exercise the power, thinks that it is ‘in the public interest’ to grant that person a visa of that particular class.”
(footnotes omitted)
The unusual, if not extraordinary, nature of s 195A, is illustrated by the requirements of s 195A(5) – (8). Not only must the visa granting power be made personally by the Minister, but the Minister is also required to table a statement before both the House of Representatives and the Senate informing Parliament of the exercise of the power and providing reasons for that decision. It is tolerably clear from the wording of s 195A that it is a reserve power that should be exercised sparingly and subject to parliamentary review.
The Tribunal accepts Ms Slack’s submissions that if the Applicants’ ECV’s were cancelled because of the operation of s 501(3A), then some relief is open pursuant to s 501CA and s 195A. However, that relief is discretionary, and it is not possible, or desirable, for the Tribunal to speculate what would happen should s 501(3A) be activated.
Ms Slack raises two further submissions that needs to be addressed.
First, she correctly points out that, during the course of these proceedings, it was suggested that there would be hardships caused to the Applicants’ children should their citizenship be revoked and they remain on ECV’s – RCS p. 36 para 97.

As previously noted, the Applicants’ children reside in Australia and appear to have integrated well into Australian society. Insofar as the Applicants’ would (subject to s 501(3A)) be entitled to remain in Australia pursuant to their ECV’s, no hardship would be visited on their children. Clearly, there would be hardship for their children should the Applicants’ be deported to Tonga, but that would only be a possibility if the s 501(3A) were activated and, at the end of a long process of review, that decision was upheld.
Second, Ms Slack, raises the situation of Ms MBN. She submitted that, as a result of the Applicants’ actions, Ms MBN became an unlawful non-citizen, and pursuant to ss 189 and 198 of the Migration Act, was liable to detention and removal from Australia – RCS p. 36 para 98. Further, should Ms MBN apply for Australian citizenship, she would be subject to the general residence requirement (s 22) as well as the good character requirement (s 21(2)(h)). The Citizenship Policy Instructions specifically provide that a person of good character would not live unlawfully in the community. Ms Slack, then, submitted – RCS p. 37 para 99:
“It would be unjust for Mr and Mrs Pulini to be Australian citizens in light of the risk that [MBN] may be prevented from being an Australian citizen wholly as a result of their criminal conduct.”
The Tribunal has no material before it that indicates that Ms MBN has any intention of seeking Australian citizenship. Further, even if there were such material before the Tribunal, the question of whether Ms MBN could satisfy the good character requirements of the Act, is a separate exercise divorced from these proceedings. It is a speculative exercise to second-guess both Ms MBN’s intentions and the outcome of any legal process she may choose to initiate.
Further, it is not appropriate for the Tribunal to engage in an exercise of punishing the Applicants’ for crimes they have been convicted of, and are being punished for. Revocation of citizenship is not a second punishment. It is not a punitive exercise. It is a power used for the protection of the community and not as a vehicle of retribution. Likewise, it is undesirable to colour the assessment of the discretion with potentially irrelevant considerations. Ms MBN’s citizenship aspirations are, in the opinion of the Tribunal, not maters that should weigh on the exercise of the discretion so far as the Applicants’ are concerned.
Finally, there is a further consideration which needs to be discussed.
Ms Slack, properly, raised the issue of likely deterrence for other applicants or proposed applicants from committing offences, or having committed offences, from failing to inform the Department thereof – RCS p. 37 para 101.
Deterrence is a valid consideration and has been taken into account by the Tribunal in previous determinations when determining to exercise the discretion – WBU at 245/[45], Osorio at [42] and NPRT at [193].
Ms Slack submits that deterrence is particularly relevant in this case where the Applicants’ offending had the potential to bring the migration scheme in Australia into disrepute – RCS p. 37 para 101.
The offences committed by the Applicants’ were unusual. A reading of the sentencing submissions made, both at the Trial and during the Queensland Court of Appeal Hearing, indicate that there were no similar precedents – see R v Pulini [2019] QCA 258 at [113] – [116]. Deterrence is a utilitarian concept. Inherent in the concept is that the punishment inflicted on an offender will result in third persons not committing similar crimes. In short, deterrence unlike retribution, is designed to influence third persons, rather than a tool reflecting moral outrage at a particular crime. There is no suggestion in this matter that the revocation of the Applicants’ citizenship will be an effective deterrent tool. If the crimes committed by the Applicants’ were commonplace or becoming a serious social and criminal issue, then the question of deterrence would be a live and relevant issue. In this matter, however, the Tribunal has no objective material before it that would support the deterrence proposition advanced by Ms Slack.
In conclusion, the Applicants’ are currently serving their sentences and are in the process of rehabilitating themselves. From their behaviour whilst in prison, it is tolerably clear to the Tribunal that they pose would little risk to the community on their release from custody. They were both recommended for parole, but those recommendations were rejected by the then Commonwealth Attorney-General. Apart from their vile behaviour towards Ms MBN, which resulted in them committing various serious crimes, they do not have a criminal or traffic history. They have been active members of the community, involved with their church and have successfully raised four children. Apart from further punishing the Applicants’, it is not readily apparent to the Tribunal what benefit the revocation of their citizenship will achieve for the Australian community.
For the reasons outlined above, the Tribunal is satisfied that it should not exercise its discretion to revoke the Applicants’ citizenship.
DECISION
The reviewable decisions are set aside and substituted with decisions not to revoke the Applicants’ citizenship pursuant to section 34 of the Australian Citizenship Act 2007 (Cth).

I certify that the preceding 241 (two hundred and forty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

.........................[SGD]...............................................
Associate
Dated: 19 January 2023

Dates of hearing: 12 - 14 October 2022

Counsel for the Applicant: Mr Matt Black

Solicitor for the Applicant:
Ms Caitlin White
Fisher Dore Lawyers

Counsel for the Respondent: Ms Kate Slack

Solicitor for the Respondent: Mr Jake Kyranis
Sparke Helmore Lawyers

Dates of hearing:	12 - 14 October 2022
Counsel for the Applicant:	Mr Matt Black
Solicitor for the Applicant:	Ms Caitlin White Fisher Dore Lawyers
Counsel for the Respondent:	Ms Kate Slack
Solicitor for the Respondent:	Mr Jake Kyranis Sparke Helmore Lawyers