Ramos Hernandez and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) - [2023] AATA 1850

Ramos Hernandez and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 1850 (28 June 2023)
Division:GENERAL DIVISION
File Number: 2021/9082
Re:Carlos Antonio Ramos Hernandez
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:28 June 2023
Place:Brisbane

Pursuant to section 43(1) of the Administrative Appeals Tribunal Act 1975, the decision of the Respondent dated 5 October 2020 is affirmed.
.........................[SGD]........................
Senior Member Theodore Tavoularis
Catchwords
CITIZENSHIP– decision to revoke Australian citizenship – public interest test – convictions for maintaining unlawful relationship of a sexual nature with a child – whether the Applicant would have been granted Australian citizenship had his offending been known at the time of his Australian citizenship application assessment- whether the Applicant has established himself as a person of good character- whether it would be contrary to public interest for the Applicant to hold Australian citizenship - decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Criminal Code Act 1899 (Qld)
Migration Act 1958 (Cth)
Penalties and Sentences Act 1992 (Qld)
Cases
Botany City Council v Minister for Transport and Regional Development (1996) 137 ALR 281
Director of Public Prosecutions v Smith [1991] 1 VR 63
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Hands v Minister for Immigration & Border Protection (2018) 267 FCR 628
Hogan v Hinch (2011) 243 CLR 506
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1999) 139 ALR 84
Jones v Dunkel and Anor (1959) 101 CLR 298
McKinnon v Secretary, Department of Treasury [2005] FCAFC 142
Osorio and Minister for Immigration and Citizenship [2007] AATA 59
Sean Investments Pty Limited v McKellar (1981) 38 ALR 363
Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
TRHL v Minister for Immigration and Border Protection [2015] AATA 803
WBU and Minister for Immigration and Citizenship [2007] AATA 1143
ZDZG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 2000
Secondary Materials
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Citizenship Procedural Instructions
REASONS FOR DECISION
Senior Member Theodore Tavoularis
28 June 2023
INTRODUCTION

On 5 October 2020, the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’ or ‘the Minister’) exercised the discretion under section 34 of the Australian Citizenship Act 2007 (Cth) (‘the Act’) to revoke Carlos Antonio Ramos Hernandez’s (‘the Applicant’) Australian Citizenship. Section 52(1)(f) of the Act provides this Tribunal with jurisdiction to consider the revocation of the Minister’s decision.
The hearing proceeded before me on 20 March 2023. Oral evidence was only received from Amabilia Orellana Garcia, with whom the Applicant is in a relationship.[1] The Tribunal also received written material into evidence, which was particularised into an agreed Exhibit List,[2] a true and correct copy of which is attached to these reasons and marked ‘Annexure A’.
[1] Transcript, p 21, lines 27-45; p 22, lines 1-14.
[2] Transcript, p 2, lines 42-46; p 3, lines 1-5.
The Applicant is a 63 year old man. He was born in El Salvador in October 1959. He initially arrived in Australia in August 1994 and has never left this country.[3] He applied for Australian Citizenship on 24 September 1996.[4] Australian Citizenship was conferred to him on

2 April 1997, at which time he made the statutory pledge of commitment.[5]
[3] T1, p 70.
[4] T1, p 38-45.
[5] T1, p 46.
On 16 July 2019, the Applicant pleaded guilty and was sentenced for one charge of ‘maintain unlawful relationship with a child and in course of the relationship commit offences of a sexual nature’. He was sentenced to a head custodial term of three and a half years. He served eight months in actual custody and the balance of the sentence was suspended for an operational period of four years.
The Applicant was duly released after serving eight months in custodial detention. He has no other criminal history.[6]
[6] T1, pp 53-54.
STATUTORY FRAMEWORK
Section 34(2) of the Act confers a discretionary power upon the Minister to revoke a person’s citizenship if, inter alia, that person has been ‘convicted of a serious offence’. As mentioned, the Applicant received a sentence of custodial imprisonment for three years and six months, to be suspended for four years after serving eight months.
It is pertinent to lay out sub-sections 34(2), (3), (4) and (5) of the Act:
Citizenship by conferral
(2)The Minister may, by writing, revoke a person’s Australian citizenship if:
(a)the person is an Australian citizen under Subdivision B of Division 2 (including because of the operation of section 32); and
(b)any of the following apply:
(i) the person has been convicted of an offence against section 50 of this Act, or section 137.1 or 137.2 of the Criminal Code, in relation to the person’s application to become an Australian citizen;
(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);
(iii)   the person obtained the Minister’s approval to become an Australian citizen as a result of migration‑related fraud within the meaning of subsection (6);
(iv)   the person obtained the Minister’s approval to become an Australian citizen as a result of third‑party fraud within the meaning of subsection (8); and
(c)the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.
3However, the Minister must not decide under subsection (2) to revoke a person’s Australian citizenship if:
(a)the Minister may revoke the person’s Australian citizenship under that subsection only because of the application of subparagraph (2)(b)(ii); and
(b)the Minister is satisfied that the person would, if the Minister were to revoke the person’s Australian citizenship, become a person who is not a national or citizen of any country.
Time citizenship ceases
4If the Minister revokes a person’s Australian citizenship, the person ceases to be an Australian citizen at the time of the revocation.
Note:     A child of the person may also cease to be an Australian citizen: see section 36.
Serious offence
5For the purposes of this section, a person has been convicted of a serious offence if:
(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.
[My underlining; emphasis in original]
Section 34(2)(a) is satisfied because the Applicant acquired Australian Citizenship on

2 April 1997 consequent upon the application he filed on 24 September 1996.
In terms of operative effect, the above legislative regime (for present purposes) works as follows:
·section 34(2)(b)(ii) of the Act provides that if a person has at any time after making the application (for citizenship) become an Australian citizen and was then ‘convicted of a serious offence’ within the meaning of sub-section 5, then the Minister may, by writing, revoke that person’s Australian citizenship;
·section 34(5)(a) of the Act explains a ‘person has been convicted of a serious offence’ if the person has been sentenced to a ‘serious prison sentence’ which term is defined pursuant to section 3 of the Act to mean ‘… a sentence of imprisonment for at least 12 months’.
It is not contested that after the Applicant made his application for grant of Australian citizenship he was convicted of a serious offence pursuant to section 34(2)(b)(ii) of the Act . Thus:
·section 34(2)(a) is satisfied;
·section 34(2)(b)(ii) is satisfied;
·section 34(5) is satisfied; and
·the definitional element of ‘serious prison sentence’ in section 3 of the Act is satisfied.
ISSUES
Two issues arise for determination. They are:
(i)is it contrary to the public interest for the Applicant to remain an Australian citizen pursuant to section 34(2)(c) of the Act?
(ii)should the Tribunal, standing in the shoes of the Minister in this merits review, exercise its discretion to revoke the Applicant’s citizenship pursuant to section 34(2) of the Citizenship Act?
The Applicant’s offending
The sentencing judge was His Honour Mr Justice Dearden of the District Court of Queensland. His Honour’s sentencing remarks appear in the material.[7] It suffices to say that the Applicant’s conduct involved extremely serious offending against a child. Specific minutiae of the offending appear in the sentencing remarks.[8] Of particular concern is the Applicant’s repeated and habitualised conduct which led His Honour to this observation: ‘your offending occurred so often that [name of victim redacted] became used to it occurring and says she did not know anything different.’[9]
[7] T1, pp 49-52.
[8] T1, p 50, lines 40-45.
[9] T1, p 50, lines 43-45.
The sentencing remarks also refer to a victim impact statement which Judge Dearden described as ‘profoundly sad’.[10] His Honour further observed that the victim:
‘…lost her childhood and she grieves that loss. Decisions were made by others while she was still a child, with the priest, on how this matter should be dealt with, but it was not reported to the police. It should have been. What is happening now could have happened 20 years earlier and her pathway to healing could have started much earlier.’[11]
[10] T1, p 50, line 22.
[11] T1, p 50, lines 22-26.
The sentencing remarks record that:
·the Applicant made admissions to his family and to a priest 20 years before his sentencing date;
·his plea of guilty was a very early one;
·the Applicant had not offended in any way after ceasing his extremely serious conduct against the subject victim;
·he had no other criminal history before or after his offending against the subject victim;
·the Applicant experienced ‘a profoundly difficult up-brining El Salvador…’;[12]
·he commenced offending against the subject victim ‘…very soon after you [the Applicant] arrived in Australia…’.[13]
[12] T1, p 50, line 34.
[13] T1, p 50, lines 46-37.
In terms of sentencing, Judge Dearden imposed a head custodial term of three and a half years. His Honour also observed that such a head custodial term would ordinarily require the Applicant to serve a period of 14 months in actual custody. However, His Honour accepted submissions from counsel before him and ordered that the time the Applicant would spend in actual custody would be reduced to eight months. The balance of the custodial term was ordered to be suspended for an operational period of four years.
The sentencing court was legislatively required to cause the Applicant to become a registered sex offender.
ISSUE 1: PUBLIC INTEREST – SECTION 34(2)(C) OF THE ACT
The terms of the sub-section
The terms of section 34(2)(c) of the Act, appear thus:
Citizenship by conferral
(2)The Minister may, by writing, revoke a person’s Australian citizenship if:
…
(c)the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.
[My underlining]
Factors informing whether the Applicant remaining an Australian citizen is contrary to the public interest
In a previous decision[14] requiring resolution of similar issues, I opined that three factors are informative as to whether something is or is not of ‘public interest’. Those three factors comprise:
(i)the severity and seriousness of an Applicant’s offence(s);
(ii)if the Applicant’s offences had been known at the time of his Application for Australian citizenship, whether his application would have been refused for failing the ‘good character’ test requirement in section 21(2)(h) of the Act; and
(iii)whether the Applicant has re-established his good character.
RELEVANT CONCEPTS ARISING FROM THE TERMS OF THE SUB-SECTION AND THE THREE ABOVE-MENTIONED FACTORS:
(i) “Public Interest”; (ii) Weighing public interest considerations for section 34(2); (iii) ‘Good character’
[14] ZDZG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 2000 (30 June 2020).
(i) “Public Interest”
Neither the Act nor any ancillary instrument offer any definitional assistance about construction of the term ‘the public interest’ in the context in which it appears at s 34(2)(c) of the Act. As best as I understand the relevant authorities, ‘the public interest’ is regarded as a multi-faceted concept which can be informed by one or more considerations. Assessment of any weight attributable to those considerations derives from the extent of their relative significance. Such significance is determined by reference to the circumstances of each case.
For example, it can be found that the concept of ‘the public interest’ is of an indeterminate nature in terms of the present exercise. It requires a decision maker to identify and evaluate the relevant weight attributable to identified facets of this concept as a means of ultimately finding where ‘the public interest’ in the context of the instant case actually resides.[15] It is largely a matter for the decision maker, having regard to the nature of the material before him/her to ascertain and identify factors relevant to a definition and comprehension of this particular concept.[16]
[15] McKinnon v Secretary, Department of Treasury [2005] FCAFC 142 at [11] and [12].
[16] Sean Investments Pty Limited v McKellar (1981) 38 ALR 363.
In reaching a determination of whether or not something is in ‘the public interest’ for present purposes a decision maker must keep in mind that the subject ‘interest’ comprises ‘…the interest of the public as distinct from the interests of an individual or individuals.’[17] The exercise ‘…imports a discretionary value judgment…’ to be made by the decision maker having regard to ‘undefined factual matters…’ restricted to (1) the subject matter before the decision maker; and (2) the extent to which any relevant statutory enactment facilitates the making of such a value judgment.[18]
[17] Director of Public Prosecutions v Smith [1991] 1 VR 63 at [75].
[18] Botany City Council v Minister for Transport and Regional Development (1996) 137 ALR 281 at [15].
In Hogan v Hinch (2011) 243 CLR 506, Chief Justice French referred to ‘analogues’ and ‘informed judicial discretions and evaluated judgements’ running parallel to the exercise of determining whether something is ‘in the public interest’. The learned Chief Justice observed that:
‘Examples include the enforceability of covenants in restraint of trade, claims for the exclusion of evidence on grounds of public interest immunity, governmental claims for confidentiality at equity, the release from the implied obligation relating to the use of documents obtained in the course of proceedings, and in the application of the law of contempt. When used in a statute, the term derives its content from ‘the subject matter and the scope and purpose’ of the enactment in which it appears. The court is not free to apply idiosyncratic notions of public interest.’[19]
[Internal citations omitted]
(ii) Weighing public interest considerations in the context of revocation of Australian citizenship on the grounds of a conviction(s) for serious offences pursuant to section 34(2) of the Act
[19] Hogan v Hinch (2011) 243 CLR 506 at [31].
To my mind, there is a fundamental axiomatic factor previously identified by Deputy President Hotop of this Tribunal when assessing public interest considerations in the context of a decision involving the revocation of a person’s Australian citizenship. The learned Deputy President cast the axiom in these terms:
“37. It is axiomatic that it is in the public interest that a person who is granted Australian citizenship under s 13(1) of the Act be a person of good character at the time of the grant of Australian citizenship and continue thereafter to be a person of good character and, accordingly, not engage in criminal conduct which is incompatible with good character. It follows, in the Tribunal’s opinion, that it would be contrary to the public interest, for the purposes of s 21(1)(b) of the Act,[20] for a person, who has been granted Australian citizenship under s 13(1) of the Act, to continue to be an Australian citizen in circumstances where that person:
·had, unbeknown to the respondent and the Department, engaging in criminal conduct incompatible with good character at the time of the grant of Australian citizenship; and
·has not subsequently become a person of good character.”[21]
[My emphasis]
[20] This is a reference to s 21(1) of the Citizenship Act 1948 (Cth), which is the precursor to s 34(2) of the Act.
[21] Osorio and Minister for Immigration and Citizenship [2007] AATA 59 at [35]; see also WBU and Minister for Immigration and Citizenship [2007] AATA 1143 at [37] (‘WBU’).
Deputy President Hotop’s axiom was taken up by Senior Member Walsh of this Tribunal in the specific context of the difference between a grant, as opposed to a revocation, of Australian citizenship:
“It is clear from the Citizenship Act itself, that a distinction must be drawn between cases dealing with the refusal of an application for Australian citizenship, on the one hand (which requires a consideration of various eligibility criteria, including whether a person was of “good character” at the time of the Minister’s decision on the person’s citizenship application) and cases dealing with the revocation of Australian citizenship, on the other (which requires the person to have been convicted of a “serious offence” after applying to become an Australian citizen and a consideration of whether it would be contrary to the “public interest” for that person to remain an Australian citizen). The granting and revocation of citizenship involve different tests which are contained in different provisions in the Citizenship Act. That said, the notion of the “public interest” has its source in the eligibility criteria set out in s 21 of the Citizenship Act, 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. This much is accepted by the Applicant [not the Applicant in this case]: refer to the Applicant’s SFIC at paragraph 44 above (at [29]). 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.”[22]
[My emphasis]
[22] TRHL v Minister for Immigration and Border Protection [2015] AATA 803 at [46].
The instant facts involve the revocation of the Applicant’s Australian citizenship. He was convicted of a ‘serious offence’ after making the relevant Australian citizenship application. The further complication for the Applicant in the present case is a temporal one. The relevant police documents dealing with his unlawful conduct (to which he pleaded guilty) relevantly record the commission of 12 offences. The first nine of those offences charge the Applicant with unlawful conduct committed ‘…between the 1^st day of January 1996 and the 31^st day of December 1998’.[23] Charge 10 records the conduct has having occurred between ‘…the 1^st day of June 1998 and the 31^st day of December 1998.’ Charges 11 and 12 record the conduct has having occurred between ‘the 1^st day of January 1998 and the 31^st day of December 1998.’
[23] R2, pp 43-44.

The very significant difficulty for this Applicant is that (1) he applied for Australian citizenship on 25 September 1996; and (2) was granted citizenship on 2 April 1997. These two events occurred squarely within the offending period recorded in the police documents for charges 1-9 (inclusive).
(iii) Good character
The term “good character” is not defined in the Act. As mentioned earlier, the concept of “good character” derives from the second of the three earlier mentioned factors in [18], informative about whether allowing a particular person to remain an Australian citizen is contrary to the public interest. The specific question that emerges is that if the Applicant’s offences had been known at the time of his application for Australian citizenship, whether his application would have been refused for failing the “good character” requirement in section 21(2)(h) of the Act?
There are two established authorities that provide guidance on the concept of ‘good character’. First, in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1999) 139 ALR 84 (‘Irving’), Lee J noted:
“… the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion.”[24]
[24] See Irving, paragraph [94].
Second, in Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 (‘Fenn’), this Tribunal sought to equate “good character” with “those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home.”[25]
[25] See Fenn, paragraph [8].
Citizenship Policy and Instructions (CPI) 15 [26] provides as follows:
[26] Citizenship Policy and Instructions (CPI) are procedural instructions which assist decision maker(s) in identifying the legal requirements, and related policy and procedures, that apply to the assessment of an application for Australian citizenship under the Act.
Good character refers to the enduring moral qualities of a person. A person who is of good character is likely to uphold and obey the laws of Australia and the other commitments made when making the Pledge of commitment should they be approved to become an Australian citizen.
…
Definition of good character
The term ‘good character’ is not defined in the Act. Therefore, the Federal Court (FC) and the Administrative Appeals Tribunal (the AAT) have used the ordinary meaning of the words, and made reference to dictionary definitions. Most cases have adopted the following definition from the Full FC judgment in Irving v Minister for Immigration, Local Government and Ethnic Affairs ((1996) 68 FCR 422; at 431-432):
Unless the terms of the Act and regulations require some other meaning be applied, the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion… A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
The phrase ‘enduring moral qualities’ encompasses the following concepts:
• characteristics which have been demonstrated over a very long period of time;
• distinguishing right from wrong; and
• behaving in an ethical manner, conforming to the rules and values of Australian society.
The good character requirement necessitates consideration of an applicant viewed in a holistic way; that is, all aspects of his/her life may be relevant to consideration of character.”[27]
Threshold Issue
[27] The introduction to the CPI says: “The purpose of this Instruction is to identify the legal requirements, and related policy and procedures, that apply to the assessment of an application for Australian citizenship under the Act.”
The Applicant’s position
At the hearing before me, the Applicant raised a threshold issue which ultimately devolved into a question about whether this Tribunal has jurisdiction to entertain the subject application. The specific question propounded by the Applicant is whether the objective jurisdictional facts in, and imported into, s 34(2) of the Act exist.[28] If the Tribunal determines it does have jurisdiction, then and only then, says the Applicant, can it turn its mind to the substantive issue about whether it would be contrary to the public interest for the Applicant to remain an Australian citizen.[29]
[28] A1, p 2, [11].
[29] A1, p 2, [12].
The Applicant identifies three elements in s 34(2)(b)(ii) of the Act necessary to be satisfied before the abovementioned substantive issue can be addressed. I again refer to the words ‘imported into’ as propounded by the Applicant when referring to s 34(2)(b)(ii). This ‘importing’ involves a reading of s 34(2)(b)(ii) of the Act together with the additional language appearing at ss 34(3) and (5) which then causes s 34(2)(b)(ii) to read as follows:
‘the person has, at any time after making the application to become an Australian citizen, 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 sentence of imprisonment for a period of at least 12 months AND the person committed the offence at any time before the person became an Australian citizen’[30]
[Underlining in original]
[30] A1, p 3, [17].
The three resulting elements inherent in s 34(2)(b)(ii) are said to be:
(a)Element (a): a requirement that the conviction to have occurred after the person made a citizenship application;
(b)Element (b): that the sentence was for a period of at least 12 months; and
(c)Element (c): the offence was committed before citizenship was conferred.[31]
[31] A1, p 3, [18].
The Applicant concedes elements (a) and (b) was not in dispute. The Applicant applied for citizenship in late 1996 and was not convicted until July 2019. Judge Dearden imposed a head custodial term of three and a half years, which is clearly a period of greater than
12 months. The Applicant contends that the disputed item is element (c) – specifically, whether any of his offending was committed before citizenship was conferred on
2 April 1997.
The Applicant makes reference to a document called ‘Statement of Facts’ appearing in the material.[32] In its Statement of Facts, Issues and Contentions (‘SFIC’), this document is referred to as an ‘Agreed Schedule of Facts’ when in fact its title is ‘Statement of Facts’.[33] On the first page of this document, in the top right hand corner, there is a reference to ‘Ex 1’ which I will presume to be a reference to ‘Exhibit 1’ that went before Judge Dearden when his Honour sentenced the Applicant in July 2019. I will further presume that the Applicant has attributed the word ‘Agreed’ to this document as a result of the Applicant entering his own pleas of guilty to the charges proffered against him. I make these two presumptions even on the basis that Judge Dearden’s sentencing remarks do not make any reference to them.
[32] R2, pp 4-9.
[33] A1, [26].
With reference to the seven ‘examples/ incidents’ of the Applicant maintaining a sexual relationship with the child victim appearing in this ‘Statement of Facts’, the Applicant says this:
(i)the Laundry incident;
(ii)the Storage Room incident;
(iii)the Nigh-Time incident;
(iv)the Toilet incident;
-are all said to have occurred ‘One day between 1996 to 1998’;
(v)the Caryard incident – is said to have occurred on 12 April 1998;
(vi)the Moving House incident – is said to have occurred ‘One day between 11 and 16 June 1998’;
(vii)the Kitchen incident – is said to have occurred ‘Towards the end of 1998’.
The abovementioned schedule relating to the seven examples/ incidents must be read and understood in conjunction with the relevant Queensland Police Service documents which proffer 12 specific charges. The first nine of those offences charge the Applicant with unlawful conduct committed ‘…between the 1^st day of January 1996 and the 31^st day of December 1998’.[34] Charge 10 records the conduct has having occurred between ‘…the 1^st day of June 1998 and the 31^st day of December 1998.’ Charges 11 and 12 record the conduct has having occurred between ‘the 1^st day of January 1998 and the 31^st day of December 1998.’
[34] R2, pp 43-44.
It is therefore safe to find that the reference to ‘one day between 1996 to 1998’ in the ‘Statement of Facts’ is a reference to ‘…between the 1^st day of January 1996 and the 31^st day of December 1998’.
The Applicant’s resulting contention is that simply because the commencement of the period within which examples (i)-(iv) of [36] are said have been committed (that is, from 1 January 1996 to 31 December 1998), this Tribunal should not draw the inference that any of those four examples/ incidents of the Applicant’s unlawful maintaining conduct should be found to have occurred either:
·before either the date the fifth example of the offending which is specifically recorded as having occurred on 12 April 1996; or
·before the date of conferral of citizenship which occurred on 2 April 1997.
The resulting contention from the Applicant is that ‘The only reasonable inference is that the examples occurred at some time between 1 January 1996 and 31 December 1998.’ Support for this contention is sought to be found in the Full Court’s comments in Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555 (‘Sullivan’):
‘Within these already accepted principles, the tribunal is otherwise free to make findings of fact which cannot be set aside by this Court. When making findings of fact which have “serious” consequences to a party, or “grave” consequences, the tribunal is free to consider the evidence and other materials before it. The more centrally relevant a particular fact may be to the decision reached, the tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached. The absence of any cross-examination on the evidence and the absence of any indication being given to a party that such evidence is under challenge, may well be factors taken into account initially by the tribunal and thereafter this Court on “appeal”.’[35]
[My emphasis and underlining]
[35] (2014) 226 FCR 555 at [120].
Based on the Full Court’s comments in Sullivan, the Applicant contends the most centrally relevant fact before this Tribunal is that of whether or not it has jurisdiction and, on that basis, greater than usual caution should be exercised in finding that any of the conduct particularised at examples/ incidents (i)-(iv) of [36] occurred prior to 12 April 1996[36] or 2 April 1997[37]. Two things flow from such a finding says the Applicant:
·the conduct particularised at examples/incidents (i)-(iv) could not be safely found to have occurred in the 15 months before conferral of citizenship[38] any may well have occurred in the 21 months afterwards;[39]
·if so, this Tribunal cannot reach a reasonable state of satisfaction that the Applicant’s unlawful conduct involving maintaining a sexual relationship with a child[40] has been made out. Section 229B of the Criminal Code Act 1899 (Qld) (‘QLD Criminal Code’) requires that for this offense to be made out:
(2) An unlawful sexual relationship is a relationship that involves more than 1 unlawful sexual act over any period.[41]
[My emphasis]
[36] The date on which the fifth example offending occurred.
[37] The date of conferral of citizenship.
[38] That is, from 1 January 1996 to 2 April 1997.
[39] That is, 3 April 1997 to 31 December 1998.
[40] Pursuant to s 229B of the Criminal Code Act 1899 (Qld).
[41] Section 229B(2) of the Criminal Code Act 1899 (Qld) .
If the offence pursuant to s 229B of the QLD Criminal Code cannot be made out before 2 April 1997, then the threshold issue[42] is not satisfied such that this Tribunal would not have jurisdiction to further entertain this Application.
[42] That is, whether the offense pursuant to s 229B of the QLD Criminal Code is made out as having occurred before the date of conferral of citizenship on 2 April 1997.
The Respondent’s position
The Respondent rightly places the onus of determining whether there had been more than one incident of unlawful sexual offending prior to the grant of citizenship (on 2 April 1997) on the Tribunal. The Respondent rejects any suggestion that the authority of Sullivan practically compels the Tribunal to express greater caution in evaluating a centrally relevant fact. It does so on the basis that Sullivan also provides that the Tribunal is free to consider the material before it in any way it sees fit. I agree.
A careful review of the facts and material before the Tribunal does, to my mind, adequately demonstrate that the Applicant’s offending occurred before 2 April 1997. I consider that each of the reasons raised by the Applicant for such a finding are both logical and compelling. A significant portion of the Applicant’s conduct is said to have occurred prior to his acquisition of citizenship on 2 April 1997. There is the broadly stated temporal nature of the Applicant’s offending contained, firstly in the list of nine out of 12 initially proffered charges and, secondly, four of the seven examples/ incidents appearing in the abovementioned Statement of Facts.[43]
[43] Nine of the 12 proffered charges (see R2, pp 43-44) ‘bookend’ the offending as having occurred ‘…between the 1^st day of January 1996 and the 31^st day of December 1998’. Further, four of the seven ‘examples’ in the Statement of Facts (see R2 pp 4-9) ‘bookend’ the offending has having occurred ‘One day between 1996 to 1998…’.
The Statement of Facts records the victim’s date of birth as being on a date in September 1988. It further records that she was aged seven to 10 years when the offending occurred. If we add seven years to 1988, we arrive at 1995-1996. If we add 10 years to 1988, we arrive at 1998-1999.[44] Further in the Statement of Facts it is recorded that ‘from the age of approximately seven, the complainant remembered that the defendant regularly visited her home and went into her bedroom…[45]’ where, thereafter, the offending occurred. The victim would have been aged seven during the period September 1995 to September 1996. She would have been eight years of age and thus ‘approximately seven’ during the period September 1996 to the first of 2 April 1997.
[44] Note to reader: the victim was born in September; she would have been aged seven for the period of September 1995 to September 1996 and 10 between September 1998 September 1999.
[45] R2, p 5, [10].
Reference should also be made to the relevant Victim Impact Statement.[46] There, the victim says ‘…I have woken up from nightmares from the age of about eight and not realise what I was having was panic attacks.’[47] The victim was ‘about eight’ from September 1996 to
1 April 1997. Perhaps more tellingly is the following passage from her Victim Impact Statement:
‘It was around the time when my parents were looking to buy the van and we would go to car dealership yards at night, he touched and groped my bottom at any opportunity he got (as he normally would), that I knew that I didn't want him to go near me and had realised that I needed to stay around my parents, brother or other people in order for him to leave me alone.’[48]
[My emphasis]
[46] R2, pp 10-11.
[47] R2, p 10.
[48] R2, p 10.
We know from the Statement of Facts (reference example/incident 5) that ‘the Caryard incident’ actually occurred on 12 April 1996.[49] This must be read in conjunction with the victim’s abovementioned quoted comments in her Victim Impact Statement. She refers to going with her parents who were looking to buy a van to ‘car dealership yards (note plural reference) at night…’. It is not a stretch of the evidence and not otherwise unreasonable to suggest (and find) that her parents looked for a van at multiple car yards between 1 January 1996 and 12 April 1996 and that she and her parents were accompanied by the Applicant during those car yard visits.
[49] R2, p 7, [34].
It is therefore more likely than not that the Applicant would have ‘touched and groped my [the victim’s] bottom at any opportunity he got (as he normally would)…’ during visits to car yards from which her parents did not buy a van. In other words it is more likely than not that the Applicant committed this conduct ‘as he normally would’ during visits by the victim and her parents to car yards (note plural reference) during a period preceding the date of the van purchase which was 12 April 1996 and/or after the date of purchase but prior to 2 April 1997.
A further, and to my mind, reasonable extrapolation of the evidence is to again refer to the words ‘touched and groped my [the victim’s] bottom at any opportunity he got (as he normally would)…’ and attribute that conduct to the first four ‘examples/incidents’[50] of the Applicant’s conduct referred to in [36]. The victim says that while her parents were looking to buy a van during the period leading up to 12 April 1996, she says his touching and groping behaviour was something he ‘normally would’ do to her. It is therefore more likely than not that, in temporal terms, he would have perpetrated this behaviour upon her prior to April 1996.
[50] They being ‘the Laundry incident’; ‘the Storage Room incident’; ‘the Night-Time incident’ and; the Toilet incident’.
In other words, the victim is telling us that during the period leading up to the purchase of the van (on 12 April 1996), the Applicant was inappropriately and unlawfully dealing with her as he ‘normally would’. It follows that this temporal reference must involve conduct preceding 12 April 1996 which, in turn, lends credence to a finding that he committed any one of the four first-stated ‘examples/incidents’ of his offending stated in [36] and that he did so either prior to 12 April 1996 and/or prior to 2 April 1997.
The further contention from the Respondent is put thus:
‘the identified period of offending was a total period of 1,095 days. The period of offending of 1 January 1996 to 2 April 1997 was 457 days (i.e. 41.7% of the total period of offending). The period from 2 April 1997 to 31 December 1998 was 638 days (i.e. 58.3% of the total period of offending). It is therefore likely that more than one incident occurred before 2 April 1997.’ [51]
[51] R1, p 8, [30(d)].
I again refer to the abovementioned authority of Sullivan where the Full Court said
‘the tribunal is otherwise free to make findings of fact which cannot be set aside by this Court. When making findings of fact which have “serious” consequences to a party, or “grave” consequences, the tribunal is free to consider the evidence and other materials before it. The more centrally relevant a particular fact may be to the decision reached, the tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.’
Here, it is possible to evaluate a factual foundation for a decision dismissing the Applicant’s argument on the threshold issue. This is because of (1) the victim’s signed and dated Victim Impact Statement (which is contemporaneous with the Applicant’s date of sentencing in 2019); (2) the abovementioned Statement of Facts containing the seven ‘examples/incidents’ of the Applicant’s offending and, in respect of the first four of those examples/incidents, the broadly stated periods during which the offending is said to have occurred; and (3) the originally stated 12 proffered charges contained in the Queensland Police Court Brief.

Based on the abovementioned evidence and/or other materials I am of the view that this further contention from the Respondent (i.e [51] of these Reasons) supports a finding that the Applicant perpetrated at least one additional unlawful act during the period prior to 2 April 1997 such as to satisfy the requirements of s229B(2) of the QLD Criminal Code.
Conclusion on the threshold issue
The Applicant’s position on the threshold position is, to my mind, too broadly posited and purports to dissuade this Tribunal from a belief that it has jurisdiction on the sole basis that the sheer gravity (or ‘centrally relevant fact’) of it having a doubt about jurisdiction is sufficient to convince this Tribunal to not further entertain this Applicant.
Such a contention can, to my mind, be safely displaced when one has regard to (1) the victim’s own words in her Victim Impact Statement and the extent to which she says that as early as the period leading up to April 1996 (when her parents purchased the van) the Applicant ‘would normally’ inappropriately and unlawfully deal with her. I have sought to explain how, in temporal terms, the totality of the evidence points to a strong likelihood that this conduct was perpetrated during the period 1 January 1996 to 12 April 1996 and/or between 12 April 1996 and 2 April 1997.
The Applicant’s argument about the threshold issue must fail. My consequential finding is that the third element identified by the Applicant relating to the requirements of s 34(2)(b)(ii) is met and that I must now determine the substantive issue.
FIRST FACTOR INFORMATIVE OF THE ‘PUBLIC INTEREST’ – THE SEVERITY AND SERIOUSNESS OF THE APPLICANT’S OFFENDING
There is a ready concession in the Applicant’s SFIC to the effect that the offences to which the Applicant pleaded guilty constituted a ‘repugnant crime’. This document goes on to describe the conduct in these terms:
‘He took advantage of a young person, who ought to have able to trust an adult, especially one who was related to her. In the words of the sentencing judge, he “took away her childhood” and “committed a grievous and lifelong injury to her mind and to her soul”.
The Australian public rightly reserve a special place of condemnation for sexual offending against children for the very reasons that His Honour stated.’[52]
[52] A1, p 8, [54]-[55].
The most objective and independent impression of the nature, severity and seriousness of the Applicant’s conduct surely resides with the learned sentencing Judge. I will not quote His Honour’s findings about what, in physical terms, the Applicant did to his victim. It suffices to say that it was appalling.[53] Perhaps even more significant, is the impact the Applicant’s conduct has subsequently been observed to have and, has actually had, on its victim. In terms of the impact it has been observed to have, the learned sentencing Judge said the following:
‘When you offended against her, you took away her childhood. She was an innocent child and she was entitled to grow up with all of the joy and happiness that any young child is entitled to. When an adult like you, who was related to her, who should have cared for her, cherished her and looked after her, instead sexually abused her, you committed a grievous and lifelong injury to her mind and to her soul.’[54]
[53] T1, p 50, lines 40-45.
[54] T1, p 50, lines 11-15.
With reference to the actual impact of the Applicant’s conduct on the victim, the relevant Victim Impact Statement says the following:
‘I've had constant self-esteem issues which also stem from the confusion and manipulation of what he did to me. The questioning [sic] as to why me? Is there something wrong with me? I blamed myself for over 20 years thinking I could have stopped it, I should have known, I should have told someone. Could my life have been different?
I have had constant nightmares all my life since I can remember of him… I have nightmares of him following me, pursuing me and me trying to escape and scream but nothing comes out.
When I saw him in [location redacted] a few years ago, it threw my life into chaos once more, I was having nightmares almost every day. I was having panic attacks regularly, I could barely function. I had to drop units from university, I failed units and ultimately almost ruined my chances of graduating. I started taking anti-depression and anxiety medication in order to keep going. I had suicidal thoughts and started talking to a social worker [name redacted] from a women's crisis centre called [organisation redacted].
I have since met my husband and grown up a lot since getting married in 2016. I have been on and off the medication but ultimately have decided to continue the medication as still to this day, I still have nightmares of what he did to me. I take one day at a time and have recently decided to make a complaint to Police, it has taken me over 22+ years to be able to talk about and describe to someone what he has done to me without breaking down into tears of anger, frustration and sadness.’[55]
[55] R2, pp 10-11.
I am therefore satisfied that the Applicant’s offending can be safely found to have been of both a severe and serious nature having regard to:
·the concessions appearing in his SFIC that describe his conduct as repugnant and ‘vile’;
·the further concession in his SFIC that the Australian public ‘rightly reserve a special place of condemnation against serious offending against children…’;
·the nature of the head custodial term of three and a half years imposed by Judge Dearden;
·the reality that the following provisions upon which His Honour’s was based speak to the severity and seriousness of the Applicant’s offending, they being:
othe provisions of section 9(1) of the Penalties and Sentences Act 1992 (Qld) (‘Penalties and Sentences Act’) dealing with, inter alia, the need for offenders to experience the deterrent effect of sentences and that the Queensland community is adequately protected from further offending conduct; and
othe provisions of section 9(2) of the Penalties and Sentences Act which stipulates that a sentence of imprisonment should only be imposed by a sentencing court as a last resort.
·Judge Dearden’s impressions of the nature, severity and seriousness of the Applicant’s offending;
·the lifelong impact of the offending on its victim.
I am therefore satisfied that the nature, severity and seriousness of this Applicant’s offending is a factor which weighs very heavily in favour of a finding that allowing him to remain an Australian citizen is contrary to the public interest.
SECOND FACTOR INFORMATIVE OF THE ‘PUBLIC INTEREST’ – THE GRANT OF CITIZENSHIP IN 1997
The specific question posited by this second factor is this: if the Applicant’s offences had been known at the time of his application for Australian citizenship, would his application have been refused on the basis for him failing the ‘good character’ test required in s 21(2)(h) of the Act?
It is helpful to examine the circumstances of this Applicant’s offending relative to the date he was granted citizenship on 2 April 1997. Those circumstances can be stated thus:
(i)he applied for Australian citizenship on 23 September 1996;
(ii)
that application was approved and he became an Australian citizen on

2 April 1997;
(iii)he committed at least one of his offences on 12 April 1996; and,
(iv)as I have found, it is more likely than not that he perpetrated his unlawful conduct upon the victim on one or more occasions prior to 2 April 1997 such that the offence pursuant to s 229B(2) of the QLD Criminal Code is made out.
Therefore, the Applicant had committed the very serious offence for which he was ultimately convicted and sentenced some 20-22 years later and prior to the conferral of Australian citizenship upon him on 2 April 1997. It is safe to find that the Applicant’s unlawful conduct was not known to the Respondent at the time of (1) the Applicant’s application for citizenship; or (2) at any time prior to the grant of citizenship.
It is safe to assume (and find) that if, prior to the conferral of Australian citizenship on

2 April 1997, the Respondent knew of the Applicant’s offending conduct during the period 1 January 1996 to 2 April 1997 – assuming such information was available to the Respondent – the Respondent would have most likely (and at the very least) deferred or more likely refused any grant of Australian citizenship until charges proffered against the Applicant had been dealt with at trial by judge and jury or otherwise been the subject of a plea by the Applicant.
I am satisfied that if the circumstances of the Applicant’s offending had been known to the Respondent at any time prior to conferral of citizenship (in April 1997), the Respondent would have surely concluded (1) that the Applicant was not a person of good character at the time he committed his offending conduct; and (2) that he was not a person of good character at the time of conferral of Australian citizenship upon him in April 1997.
Further, having regard to the extremely serious and appalling circumstances of the Applicant’s conduct I am satisfied that it would have been very unlikely that any evidence or other exculpatory material contemporaneously put forward by the Applicant to explain his conduct prior to the conferral of citizenship would have succeeded in displacing the Respondent’s likely finding that he was not of good character.
I am further satisfied that the very likely refusal of Australian citizenship to this Applicant in April 1997 (due to the very strong likelihood of him failing the good character requirement) were his offending conduct known to the Respondent, is a factor that weighs very heavily in favour of a finding that allowing him to remain an Australian citizen is contrary to the public interest.
THIRD FACTOR INFORMATIVE OF THE PUBLIC INTEREST – WHETHER THE APPLICANT HAS RE-ESTABLISHED HIS ‘GOOD CHARACTER’
A determination of the question of whether the Applicant has re-established his good character necessarily requires a review of the evidence. This includes a review of the respective positions taken by the parties on this issue. I will firstly commence with a review of the Applicant’s material and relevant evidence before the Tribunal.
The Applicant’s SFIC
The Applicant’s SFIC takes a multi-faceted approach to the question of whether the Applicant has re-established his good character since the time he so very seriously offended. First, the Applicant propounds a temporal argument. It is put on the basis that he has not re-offended at all since the mid-to-late 1990s. This argument is put in these terms:
‘…it was an isolated offence. Notably, with the exception of eight months in prison, Mr Ramos Hernandez has been in the Australian community for 28 years without any further offending. A judicial officer saw fit to return him to the Australian community in March 2020.’[56]
[56] A1, pp 8-9, [57]
This first argument crystalizes into the following position:
‘Although Mr Ramos Hernandez committed a vile crime over 20 years ago, he has not offended since. It represents a single, admittedly repugnant, stain on an [sic] person who otherwise had demonstrated the necessary enduring moral qualities to the Minister’s satisfaction.’[57]
[57] A1, p 9, [59].
Second, reliance is placed on the report of Dr Gavan Palk, a consultant and forensic psychologist whose report is dated 15 July 2019 and was obviously obtained in anticipation of the Applicant’s sentencing hearing before Judge Dearden on the following day, 16 July 2019. I approach Dr Palk’s evidence with some degree of caution and I do so on two grounds: (1) the report is now almost four years old and was prepared for a different proceeding that primarily dealt with elements around the Applicant’s criminality; and (2) Dr Palk was not called to give evidence at the hearing before me and the Respondent was thus denied the opportunity of testing Dr Palk’s findings in cross-examination.
In his SFIC, the Applicant seeks to rely on Dr Palk’s opinion from the specific perspective of the level of his recidivist risk. I will summarise the Applicant’s position by reference to specific sub-headings appearing in his SFIC:
·Insight into offending;
oit is stated the Dr Palk is an expert whose opinions are more significant than ‘…the lay view of any decision-maker…’.;[58]
[58] A1, p 6, [37].
oDr Palk observed that the Applicant was ashamed of his behaviour;
oit was noted that the Applicant could not provide Dr Palk with an explanation as to why he inappropriately touched the victim;
oDr Palk found that the Applicant ‘appeared to minimise the nature and extent of his offending...’;
obut that this may be explained on the basis of the shame and embarrassment felt by the Applicant as opposed to an inherent denial of what he did to the victim.
·Reason for offending:
oDr Palk opined ‘…that there was no evidence of underlying sexual deviance.’;
oDr Palk thought a more typical rationale behind the Applicant’s unlawful conduct is to be found in ‘…a situational regressed sex offender, whose offending is best understood in the light of serious adjustment concerns and post-traumatic-stress.’.;[59]
·Re-offending risk assessment:
ofollowing application of a variety of psychological assessment tools, Dr Palk thought the Applicant ‘was in the low or very low risk range for further similar offences;’[60]
oit was the further opinion of Dr Palk that the Applicant currently (that is, as at July 2019) represented a low risk of being a danger to the community;
oalthough Dr Palk referred to ‘current protective factors’ he did not identify or discuss any such factors. However, Dr Palk did refer to the Applicant’s health issues and the fact of his family members knowing of his offending history as grounds for his (Dr Palk’s) confidence that the Applicant represented a low recidivist risk.
[59] A1, p 6, [40].
[60] A2, p 6, [41].
Third, reference is made to the Applicant’s personal characteristics which could be said to be indicative of the re-establishment of good-character. Put another way, and as best as I understood it, this contention was put on the basis that these personal characteristics were factors of such significance in the Applicant’s life such that he would prioritize addressing those factors as opposed to doing something else that adversely impacted on any finding that he was now of good character:
‘It is clear, in his contention, that Mr Ramos Hernandez is not a well man. Some of his physical and mental conditions are the sequelae of the very experiences that led Australia to accept him as a refugee. Others – his low intellect, his cognitive impairment – may be inherent or the consequence of aging [sic].’[61]
[61] A1, p 5, [36].
Finally, a contention is put on the basis that this Applicant should not be defined in terms of his past criminal conduct no matter how vile and repugnant it may now be found to be. This submission is put in these terms:
‘Mr Ramos Hernandez is not a bad person, notwithstanding that he committed a repugnant crime… As Justice Lee observed in Godley: “A person of ill repute by reason of past criminal conduct may nonetheless, on objective examination at a later stage in life, be shown to be a person reformed and now of good character.”
An objective examination would show that the offending was an atypical, and situational, aberration on an otherwise good character.’[62]
[Internal references omitted]
[62] A1, p 9, [61]-[62].
Statement by the Applicant
The Applicant did not give oral evidence at the hearing before me. He has however, prepared two statutory declarations respectively dated 26 November 2021 and
27 January 2022. As was the case with Dr Palk, the Respondent was denied the opportunity of testing the Applicant’s evidence in cross-examination. While not necessarily fatal to the Applicant’s prospects in this matter, I am somewhat concerned by the position taken by the Applicant to not give oral evidence at the instant hearing. This matter requires this Tribunal to make very specific and subjective findings about this Applicant. The exercise involves, inter alia, an assessment of the Applicant’s character in the context of some extremely serious and unlawful conduct he perpetrated in the mid-late 90s.
As mentioned, Dr Palk was not made available to give oral evidence. Save for the victim – who should absolutely not be compelled to re-live the nightmare she endured at the hands of the Applicant by giving evidence at the instant hearing – the next best-placed person to assist this Tribunal with its determination of strictly personal and subjective issues is the Applicant.
The Applicant’s non-provision of oral evidence does, to some extent, deny this Tribunal a capacity to gauge, apprehend and form any conclusion about the veracity of how the statements appearing in his statutory declarations came to be made. The refusal to provide oral evidence denies the Tribunal a different dimension to the Applicant’s evidence. The failure to produce a witness carries with it a certain inference referred to by the High Court in Jones v Dunkel and Anor (1959) 101 CLR 298 (‘Jones v Dunkel’):
‘The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party.’[63]
[63] At pages 320–321(per Windeyer J), quoting ‘Wigmore on Evidence’, 3^rd. ed. (1940) vol. 2.
I apply the inferential rule in Jones v Dunkel towards a conclusion that the Applicant’s evidence, for the purposes of determining this Application, was either not thought to have been of assistance or, were he to be called, there was an apprehension he would have added little to his written statement. I again note the Respondent was denied the opportunity of testing his evidence in cross-examination. Accordingly, I temper the weight allocable to the Applicant’s written evidence before me.
Before discussing the Applicant’s two abovementioned statutory declarations, it is important for the reader of these Reasons to understand the context in which they were provided. The Applicant initially missed the statutory deadline for filing the instant application to this Tribunal. There followed an application for an extension of time for him to do so. That application was heard and determined by me, in the Applicant’s favour, in the early part of 2022. When discussing the evidence in his two statutory declarations, I will focus on specific elements which relate to whether or not the Applicant has re-established his good character rather than evidence or reasons he provided for missing a statutory deadline.
In the first of his statutory declarations made on 26 November 2021,[64] the Applicant confirmed he does not understand, read or write English and that he can only speak Spanish. He otherwise confirms that he is in a de facto relationship with Ms Amabilia Orellana Garcia. He makes reference to his medical conditions which he describes thus:
“Medical conditions
9. I have a number of medical conditions, including:
(a)I had an injury to my cornea, which means I cannot see well out of my left eye.
(b)I only have 1 kidney because I donated one kidney to my ex wife.
(c)I had a car accident in El Salvador 35 year ago and injured my right ankle. I still have a lot of pain from this.” [65]
[64] A3.
[65] A3, p 1, [9(a)]-[9(c)].
The Applicant confirms that he has (or at least did have) as at November 2021 symptoms indicative of him suffering from depression and anxiety. He confirmed his diagnosis of

Post-Traumatic Stress Disorder. He further confirms that even though Dr Palk provided a report in July 2019, the Applicant did, as at November 2021 still ‘…see a psychologist Dr Gavan Palk. I see him every month, month and a half.’[66]
[66] A3, p1, [11].

The Applicant also confirms that he and his de facto partner subsist on mutual disability support pensions which he receives as a result of his above-described physical and mental symptomatology and which she receives because ‘She suffers from chronic pain and fibromyalgia.’[67]
[67] A3, p 1, [12]-[13]; see also Exhibits A6 (Centrelink concession cards) and A7 (Centrelink income statements).
In the second of his two statutory declarations made on 27 January 2022, the Applicant confirms that he was born in El Salvador and lived there until August of 1994 at which time he moved to Australia when he was 38 years of age. He says that the civil war in El Salvador that was occurring in 1994 endangered his life on the basis that he was part of a guerrilla group that was agitating against the incumbent government. He met a woman in El Salvador who had a five-year-old son from a previous relationship. He migrated to Australia with that woman, her son as well as his (the Applicant’s) mother and older sister.
He married the de facto partner (met in El Salvador) in Australia in 1998. Upon arrival in Australia he settled in Brisbane and has remained in the Brisbane area since his arrival. He separated from the El Salvadorian de facto in 2015 and they divorced in or around May 2017. He has lived with his current de facto partner (the abovementioned Ms Garcia) since July 2017. He says that he and Ms Garcia ‘live by ourselves and take care of each other.’
In terms of family links in Australia the Applicant says the following:
“11. All of my family live in Australia. I have one brother and 4 sisters who all live here in Australia. My mother has passed away. All of my brothers and sisters are Australian citizens. I also have 8 nieces and nephews in Australia.” [68]
[68] A4, p 1, [11].
With specific reference to Dr Palk, the Applicant repeated that ‘I see a psychologist Dr Gavan Palk. I see him every month, month and a half. I have been seeing him since 2018.’[69] The Applicant confirms he is a member of the Catholic faith and that he used to regularly attend church services but that he ceased doing so following separation form his

El Salvadorian de facto partner and later wife. He notes that ‘I donated a kidney to my ex-wife in 1999 in Australia at the Prince Alexander [sic] Hospital in Brisbane.’[70]
[69] A4, p 2, [15].
[70] A4, p 2, [17].
He further notes that ‘Apart from my criminal conviction, I have never been charged with or convicted of any other crime either in El Salvador or in Australia.’[71]
[71] A4, p 2, [18].
The Evidence of Dr Palk
As mentioned earlier, Dr Palk did not give oral evidence at the instant hearing and his report is almost four years old. In terms of the Applicant’s personality profile and any mental health concerns, Dr Palk noted these things:
‘There was evidence of specific fears or anxiety surrounding some situations. The pattern of responses reveals that he is likely to display a variety of maladaptive behavior [sic] patterns aimed at controlling anxiety. He does not appear to have significant problems with obsessive-compulsive thoughts and behaviors [sic].
…
There was no evidence of a recent history involving alcohol or illegal drug misuse. He has not consumed alcohol or smoked for over 30 years.
The self-concept of Mr. Hernandez appears to be poorly established, although harsh self-criticism and severe self-doubt seem characteristic. He seems to be dependent on his partner and close family. His self-esteem is fragile and is likely to plummet in response to slights or oversights by other people.
In considering the social environment ·of Mr: Hernandez with respect to perceived stressors and the availability of social supports with which to deal with these stressors, his responses indicate that he is likely to be experiencing notable stress and turmoil in a number of major life areas. However, he has a very supportive partner and sister.’[72]
[72] R2, p 18, [9.4], [9.6], [9.9] and [9.10].
With specific reference to the Applicant’s level of recidivist risk, Dr Palk noted:
‘The writer is confident that Mr. Hernandez presents as a low risk for future similar offences, particularly in light of his health problems and the fact that is [sic] family members are aware of his offending history. The writer is also confident he would abide by parole conditions.
The likelihood of Mr. Hernandez re-offending and/or being a danger to children
The clinical, historical and psychometric testing indicates Mr. Hernandez is currently a low risk for committing further similar offences or being a danger to the community.
Mr. Hernandez does not have major problems with aggression and violence. He is not naturally inclined to be antisocial and there was no evidence he suffered from an underlying sexual deviance disorder. He has no previous offences of a sexual nature or previous criminal convictions of any kind.
Overall, psychometric and clinical evidence suggests Mr. Hernandez falls in the very low risk range for further similar offences.
In the writer's opinion, as noted, Mr. Hernandez impresses as fitting the typology of a situational sex offender. He impressed as a man as being ashamed of his behaviour but minimises the nature and extent of his offending. This may be due to shame and embarrassment rather than an inherent denial of aspects of his offences.’[73]
[73] R2, p 25, [12.14] - [12.18].
Evidence of Amabilia Orellana Garcia
The Applicant’s current de facto partner (Ms Garcia) provided both oral and written evidence to the instant hearing. Her statutory declaration made on 27 January 2022 appears in the material.[74] It was prepared in relation to the abovementioned application for an extension of time. Ms Garcia confirms that she and the Applicant have lived together since July 2017. She derives from Guatemala and arrived here in March 1985 as a refugee. She currently holds Australian citizenship. She is functionally familiar with spoken English but cannot read or write in English.
[74] A5.
She repeats the Applicant’s evidence that he and she sought support and an explanation from Dr Palk about the terms of the Respondent’s letter notifying the Applicant of the revocation of his Australian citizenship.
During her evidence-in-chief, Ms Garcia confirmed the domestic living arrangements between her and the Applicant. She confirmed that she is aware of the nature of the Applicant’s past offending. She was then asked why she still remains in a domestic relationship with the Applicant given the nature of his past offending. She responded with this:
‘INTERPRETER: There are three reasons, first, the way he behaved and everything, I believe and he is thinking now that he is very sorry for what he did. The reason is that the way he said that things happened, I really believe in it and I was also sexually assaulted when I was young, so I also wanted to support the girl and understand it from her side, but I did believe that he was sorry for what he did. And I would have liked at that time that the person that abused me, had that been like Carlos and had (indistinct) felt sorry for him. But that never happened. And I felt that by supporting him too, I could help him to face what he had done and to feel sorry for what he did. And I also believe though he told me that he had never done that before and that he never will do it after. I always saw him in the church behaving very well with everybody, young ones and mature people, always like respect.’[75]
[75] Transcript, p 22, lines 39-47; p 23, lines 1-3.
Ms Garcia was also cross-examined. As best as I understood her evidence in

cross-examination, there were three principal themes to it. First, it transpired that the Applicant did not personally volunteer the reality of his past conduct to Ms Garcia after they commenced their domestic relationship. His past conduct was only revealed to Ms Garcia when someone who knew about the Applicant’s past conduct confronted him with it in the presence of Ms Garcia. This is what transpired during cross-examination:
‘MR BYRNES: When did he tell you that?
INTERPRETER: He told me that when I found out what happened and I started talking with him.
MR BYRNES: Okay. Can you give me a year?
INTERPRETER: It was November 10th. November 2017. She’s not sure.
…
MR BYRNES: Okay. Do you remember what prompted him to tell you this?
INTERPRETER: We were at a festival. A community festival. And we were working with that group. And his nephew came over to sell some (indistinct). And the nephew then realised that Carlos was there. The nephew started looking at Carlos and say, “What are you doing here? You shouldn’t be here.” You abused a child. And my sister was there, and my sister confirm that that’s what he was saying because she heard it.
So anymore you want to find out?
MR BYRNES: I’ll continue asking questions. That’s the first time that you heard about his offending?
INTERPRETER: Yes.
MR BYRNES: Yes. In your evidence before, you said later he told you of other things. Do you recall that?
INTERPRETER: After the festival, I went to see him, talk to him. And then I ask him a lot of questions. And then he told me what had happened.’[76]
[76] Transcript, p 28, p 21-46; p 29, lines 1-32.
Second, the Respondent’s representative sought to explore the apparent inconsistency in Ms Garcia’s evidence when she said that in relation to the victim the Applicant told her ‘…he only touched her twice…’.[77] The following exchange occurred between Ms Garcia and the Respondent’s representative. I am not entirely certain that it establishes any determinatively fatal inconsistency in her evidence but it is worth setting out for the purposes of these reasons:
[77] Transcript, p 26, lines 37-38.
‘MR BYRNES: Thank you, Senior Member. So if I can summarise that, you came to know more about his actions with the girl. That seems to be inconsistent with him telling you that he only touched her twice. Do you accept that?
INTERPRETER: That’s correct.
MR BYRNES: You accept it is inconsistent?
INTERPRETER: (Indistinct.)
MR BYRNES: Did he explain why he had told you he only touched her twice when that wasn’t true?
INTERPRETER: He only said that he couldn’t remember anything else that he had done.
MR BYRNES: Does that give you some concern about whether or not he’s sorry for what he did?
INTERPRETER: No, I continued to believe in him. Because he swear - he was swearing that he was telling the truth.
MR BYRNES: So when you say, “I continued to believe in him”, what exactly did you believe?
INTERPRETER: That it was true that he only had touched her twice.
MR BYRNES: So you’re currently - you think he has only touched her twice? That’s your evidence today?
INTERPRETER: Sie.’[78]
[78] Transcript, p 26, lines 26-47; p 27, lines 1-10.
The third theme inherent in Ms Garcia’s evidence given in cross-examination revolved around her own three adult biological daughters and the extent to which the Applicant has contact with the infant children of those daughters.[79] Those biological daughters have provided Ms Garcia with four grand-children, three girls and one boy.[80] The three girls are respectively aged 11, five and two and a half years. The boy is aged five years.[81] It transpires that Ms Garcia’s daughters prohibit any contact between the Applicant and their infant children. In fact, Ms Garcia asks the Applicant to leave their home whenever any of her daughters visits her with their children:
[79] Transcript, p 27, lines 38.
[80] Transcript, p 27, line 40.
[81] Transcript, p 27, lines 38-45.
‘MR BYRNES: Okay. You’re saying you visit them, do they come around to your house ever?
INTERPRETER: Not very often.
MR BYRNES: But they do come around sometimes?
INTERPRETER: Yes.
MR BYRNES: Do they see Mr Hernandez?
WITNESS: No. No.
MR BYRNES: But he lives with you, doesn’t he?
INTERPRETER: When they’re going to come, I ask him to leave. And I told the police that.
MR BYRNES: Right. Now, why do you ask him to leave?
INTERPRETER: Because my daughters prefer that the girls have no contact with him.
MR BYRNES: When did this practice of asking him to leave start?
INTERPRETER: When he come out from detention. It was about March.
MR BYRNES: Okay. (Indistinct.)
INTERPRETER: After.
MR BYRNES: So before he went to prison, did he see your grandchildren?
INTERPRETER: Before I used to go to their house and he used to take me, and he had communication or contact with my grandchildren. But we always together. He was never alone with them. I never saw anything wrong.
MR BYRNES: So before that time, your daughters had not told him to essentially not go near her children?
INTERPRETER: No, because they didn’t know anything, and I didn’t know anything. When they knew about it, that’s when we tried to do that. What we’re doing. That he will go.
MR BYRNES: But didn’t you know about it before the police pressed charges?
INTERPRETER: Yes, I told my daughter.
MR BYRNES: So you told your daughters about the touching of a girl before charges were pressed, is that right?
INTERPRETER: Yes.
MR BYRNES: So where does he go when the children come to visit you?
INTERPRETER: Sometimes he goes to see his sister or brother. His family.
MR BYRNES: I have no further questions.’[82]
[82] Transcript, p 28, lines 21-46; p 29, lines 1-32.
Applicant’s response to notification of citizenship cancellation
The Applicant was advised about the possible cancellation of his Australian citizenship by letter from the Respondent’s department dated 23 April 2020.[83] He responded to the invitation, to reply to the proposed cancellation. That reply included a series of statements from the Applicant and supporting witnesses. I will briefly address each of those statements from the particular perspective of whether, if at all, they speak to the Applicant’s
re-establishment of his good-character:
[83] T1, pp 55-57.
·the first statement in this bundle is that of the Applicant. It is dated 18 May 2020.[84] In this statement the Applicant expresses remorse for his unlawful conduct. He says the offending against the victim was a singularity and that he has not otherwise offended. He agrees that ‘What I can do now is be the best version of myself.’[85] He confirms his domestic living arrangements with Ms Garcia and says that if sent back to El Salvador ‘…nothing is waiting for me back there.’ If returned to El Salvador he adds that ‘I will not be able to support myself financially and be left homeless with no support from anyone.’[86];
[84] T1, p 61.
[85] T1, p 61.
[86] T1, p 61.
·the second statement (dated 15 May 2020) in this bundle is from Ms Ana Victoria Ramos Hernandez, who is the Applicant’s sister.[87] She also speaks of the singularity of the Applicant’s offending being his unlawful conduct towards the abovementioned victim. She paints a bleak picture of the Applicant’s possible return to El Salvador ‘Given his health problems, and age, he would not cope adjusting back into an environment alone, and with nothing, he would have no future.’[88];
[87] T1, p 62.
[88] T1, p 62.
·the third statement (dated 12 May 2020) in this bundle is from Ms Alicia Arias, who is the sister of the Applicant.[89] She repeats the singularity of the Applicant’s unlawful conduct. She also refers to the findings of Dr Palk about the Applicant’s recidivist risk and otherwise notes how ‘…regretful and shameful he [the Applicant] is for what he did…’[90];
[89] T1, p 63.
[90] T1, p 63.
·the fourth statement (dated 4 June 2020) is a hand-written document from Ms Garcia. She notes that she met the Applicant 22 years previously and that they had been in a domestic relationship for four years. Ms Garcia notes that the Applicant ‘…has shown as partner and community person to have the best intentions to soport [sic] and consider everyone’s need and attitudes by pleasing and willing to see them happy.’[91] She adds that ‘I am an honest witness of his repentemnt [sic] and shame he has naturally demostrated [sic] to me for wath [sic] happened.’[92];
·the fifth statement in this bundle appears undated and is made by Ms Elba Orellana.[93] She says she has known the Applicant ‘since he became my sister’s [i.e Ms Garcia] friend, and especially after they became a couple four years ago…’[94] She says the Applicant ‘…has always been a person who cares in detail about the people around him and feels really comited [sic] to help and serve without hesitation every time he sees someone is in trouble. He’s very attentive and honestly dedicated to his prayers and to follows [sic] God’s and Christian Comandments [sic].’[95] Mr Orellana further observes that ‘During these four years he’s been with my sister…he has taken care and listens to her rights and pleases and cherishes her…’[96];
·the sixth statement in this bundle is dated 10 June 2019 and is provided by the Applicant’s nephew Mr Luis Arias.[97] This nephew has known the Applicant since the latter’s arrival in Australia in 1994. Mr Arias notes that ‘…I believe he is sorry for what he has done. He feels disgraced among the community, friends and family.’[98] Mr Arias adds that:
‘I can say that in all the time I have known my Uncle, Carlos has always been a helpful person offering assistance or aid when he sees friends, family, and even amongst the community needing help. Also, he is a person that likes to give useful advice, whether it is congratulating you for studying or encouraging you to achieve your potential, to stay away from unethical behaviour.
I believe any behaviour he displayed that caused him to be charged with that offence is out of character, Carlos has always kept away from improper conduct and has been respectful to persons of all ages, including myself.’[99]
·the final statement in this bundle is an additional statement from the Applicant’s sister, the abovementioned Ms Alicia Arias, it dates from 3 June 2019.[100] She notes that ‘…my brother is a decent, hard working and trustworthy person…[he] feels sorrow and compassion when he when he sees the suffering and misfortune of others, and this led him to donate one of his kidneys to his ex-wife when he needed a kidney transplant. Carlos also provided for and helped raise his ex-wife [sic] son as if he was his own.’[101] She concludes her statement by saying:
‘My Brother started working from the age of eight years with the motivation to help the family a quality he continues to uphold today. When Carlos sees someone needing assists, Carlos always offers to help.’[102]
[91] T1, p 64.
[92] T1, p 64.
[93] T1, p 65.
[94] T1, p 65.
[95] T1, p 65.
[96] T1, p 65.
[97] T1, p 66. Note to reader: this statement of Mr Arias is dated 10 June 2019 and is addressed to The Presiding Judge/Magistrate of the District Court. While it looks like this statement was prepared in anticipation of the sentencing hearing before Judge Dearden in July 2019, it is more likely than not that Applicant also provided this statement as part of the bundle of statements that went to the Respondent in response to the proposed cancellation.
[98] T1, p 66.
[99] T1, p 66.
[100] T1, p 67. Note to reader: this statement of Ms Arias is dated 3 June 2019 and is addressed to The Presiding Judge/Magistrate of the District Court. While it looks like this statement was prepared in anticipation of the sentencing hearing before Judge Dearden in July 2019, it is more likely than not that the also Applicant provided this statement as part of the bundle of statements that went to the Respondent in response to the proposed cancellation.
[101] T1, p 67.
[102] T1, p 67.
Respondent’s SFIC
In its SFIC, the Respondent unsurprisingly contends that the Applicant has not
re-established his good character. This contention appears grounded on two specific things: (1) the lack of currency and purpose of Dr Palk’s report, and (2) ‘matters of concern’ in respect of the Applicant’s recidivist risk as assessed by Dr Palk.
First, in terms of Dr Palk’s report the Respondent notes:
·the report comprises a forensic psychological opinion for the Applicant’s sentencing before Judge Dearden in July 2019 and has not been prepared for the purpose of the instant hearing. Nor has Dr Palk provided an updated or differently oriented report for the purposes of the instant hearing;[103]
·while Dr Palk notes that the Applicant expressed shame about his offending, he noted the Applicant could not explain why he felt compelled to inappropriately and unlawfully touch the victim;[104]
[103] R1, p 10, [49(a)].
[104] R1, p 10, [49(c)].

Second, with reference to the identified ‘matters of concern’ in relation to the Applicant’s recidivist risk, the Respondent:
·takes issue with the position taken in the Applicant’s SFIC, which purports to describe the Applicant’s offending as ‘an isolated offence’.[105] This is because the Applicant perpetrated unlawful sexual acts on a repeated basis over the course of years;[106]
·notes that Applicant was willing to go unpunished and his offending only came to light following a formal complaint by the victim some 20 years after the offending ceased. As noted by the Respondent ‘There was no historic atonement for his wrongdoing;’[107]
·notes that although the Applicant entered his own plea of guilty before Judge Dearden, he nevertheless maintained a position of denial in the abovementioned Statement of Facts (which presumably went before Judge Dearden) in terms of specific indicia of his offending conduct towards the victim;[108]
·contends the Applicant’s position about there being only the one unlawful sexual act prior to 2 April 1997 (as he propounds with reference to the abovementioned threshold issue) should be rejected, as I have done in my abovementioned findings in relation to the threshold issue;[109]
·contends the Applicant has a demonstrated lack of insight into his offending as indicated by his telling Dr Palk that his offending involved ‘Silly things one does, don’t know, suddenly felt like touching her’;[110]
·contends there seems to be a lack of remorse in the Applicant’s demeanour referrable to his offending. Any remorse he does demonstrate only occurred after the victim had made a formal complaint to the police. In my view, the Applicant’s secretive and guarded conduct around his offending can also be seen in how his past conduct was brought to the attention of Ms Garcia;[111]
·contends the Applicant appears to have an unresolved predisposition towards maladaptive behaviour patterns and unusual thoughts as well as problems with empathy. The Respondent contends that stressors may cause the Applicant to respond negatively to a given situation such that even if his offending were situational there would still remain the possibility of re-commission of his past conduct;[112]
·contends that even if one were to accept Dr Palk’s finding of a low recidivist risk, even such a low risk may still be found to be unacceptable given the nature and severity of the Applicant’s past unlawful conduct;[113]
·contends there is no evidence that the Applicant has received treatment for and/or rehabilitation for his sexual offending. Despite the Applicant saying he has been seeing Dr Palk since 2018, every month to month and a half, it seems those consultations have been for the purpose of addressing the Applicant’s depression, anxiety and post-traumatic stress disorder;[114]
·contends the Applicant’s recidivist risk – even if found to be low – ‘…does not necessarily mean that he has re-established good character (as good character is not necessarily synonymous with re-offending).’[115]
[105] A1, p 8, [57].
[106] R1, p 11, [51(b)].
[107] R1, p 11, [51(a)].
[108] R1, p 11, [51(b)].
[109] R1, p 11, [51(c)].
[110] R1, p 12, [51(d)].
[111] R1, p 12, [51(f)].
[112] R1, p 12, [51(g)].
[113] R1, pp 12-13, [51(i)].
[114] R1, p 13, [51(k)].
[115] R1, p 13, [53].
Determination of the Third Factor: Whether the Applicant has re-established his good character
Having reviewed the evidence before the Tribunal I have difficulty in reaching a definitive finding that this Applicant has sufficiently re-established his good character for present purposes. I accept that he is well regarded and loved by those immediately around him and that there are indicators of him being on a path towards re-establishment of his good character. As against that, there are certain anomalies and/or questions and/or outlier elements in the evidence which lead me to conclude that the re-establishment of this Applicant’s good character is incomplete and otherwise remains a work-in-progress.
This finding is perhaps best understood by reference to my comments around the following elements I have teased out of the evidence:
·Recidivist risk
– the crux of the Applicant’s position around the re-establishment of his good character is postulated upon his current level of recidivist risk. The primary source of evidence for this position is propounded to exist in the findings and opinions of Dr Palk. As mentioned, there are two very significant difficulties with

Dr Palk’s findings: (1) they are now almost four years old; and (2) they were primarily oriented towards informing a sentencing court about the Applicant’s recidivist risk and not informing a Tribunal charged with responsibility for finding whether a person has re-established their good character. I accept the Respondent’s contention that satisfaction about the re-establishment of a person’s good character is not necessarily synonymous with that person’s assessed recidivist risk. This anomaly in the evidence could have perhaps been addressed by either (1) the obtaining of a contemporaneous report from Dr Palk specifically oriented towards the extent to which the Applicant has re-established his good character; or (2) calling Dr Palk to give evidence on that specific issue, noting that while that issue is not explicitly addressed in his report from July 2019, this Tribunal is not strictly bound by the rules of evidence and would most likely have allowed the ventilation of questions to

Dr Palk about the Applicant’s character;
·The Applicant’s characteristics – it is difficult (and ultimately unsafe) to attribute a person’s re-establishment of their good character on the basis of that person being ‘not a well man.’ While it can be accepted that the Applicant has diagnosed physical and mental health maladies affecting his life, it is something else entirely to suggest that those maladies will pre-occupy the Applicant to the extent of him forever living a pious and virtuous life that could not ground a finding about the re-establishment of his good character;
·Past offending should not define a person forever – to my mind, there is some measure of supportive traction in favour of the Applicant when regard is had to this strand of the evidence. His past offending has been vile and repugnant with known dreadful consequences to its victim. It can be accepted that the Applicant’s offending was perhaps atypical and situational. But that does not automatically lead to a holistically-derived finding that he is otherwise of sufficiently re-established good character for present purposes. It is not lost on this decision-maker that a far more learned judicial officer in the form of Judge Dearden saw fit to incarcerate the Applicant in mid-2019 and to then return him to the Australian community in March 2020.What Judge Dearden did in 2019 should not necessarily be determinative of what this Tribunal should do now;
·What the Applicant did/did not tell Ms Garcia – the Applicant commenced and continues to maintain a domestic relationship with Ms Garcia. On any reasonable view of the evidence, it appears the Applicant did not disclose his past offending to her and that such disclosure was apparently the result of a public utterance by a third party directed towards the Applicant within earshot of Ms Garcia. I accept there is no compulsion on the Applicant to tell anyone anything at anytime about his offending if that other person knows nothing about it. But, to my mind, a more virtuous person – and someone with a more evolved re-establishment of their good character – would have told someone as significant in their life as their domestic partner/wife about something as momentous as what the Applicant did to his victim in the mid to late 1990s for which the criminal courts duly sentenced him;
·What people around the Applicant say about him
– it is clear from the supportive statements tendered in favour of the Applicant that he is a person who – post his extremely serious conduct – has otherwise lived a quiet and largely anonymous life. He is regarded as a loving brother and de facto partner. While his first domestic relationship did end, he nevertheless was decent enough to donate one of his own kidneys to his former wife in a time of medical emergency in her life. The evidence also suggests that he was a good provider and step-father to his

ex-wife’s son who was aged five when their relationship commenced;
·What other people around the Applicant say or think about him – by ‘other people’ I am referring to the daughters of Ms Garcia and the four grand-children that those daughters have provided to her. It is clear from Ms Garcia’s evidence that they do not want the Applicant to be present at anytime while the grand-children are visiting Ms Garcia in the home she shares with the Applicant. When Ms Garcia visits the grand-children the daughters have made it clear that the Applicant is not to accompany her. The attitude of the daughters is not indicative of a person who, to their minds at least, has re-established their good character;
·Something specific said by the Applicant to Dr Palk
– it is, to my mind, an anomaly in the evidence around the re-establishment of good character when one has regard to paragraph 4.2 of Dr Palk’s report which says: ‘When asked why by he touched the complainant inappropriately, through an interpreter Mr Hernandez replied “Silly things one does, don’t know, suddenly felt like touching her”.’[116] Any element of cultural unfamiliarity with Dr Palk’s questioning and/or any deficiency in the Applicant capacity to understand a question put to him in English can be safely discounted because Dr Palk’s examination was conducted via the agency of an interpreter. This remark by the Applicant does not, at least to my non-clinical mind, sit comfortably or at all squarely with Dr Palk’s findings that (1) the Applicant’s conduct was not the result of underlying sexual deviance; or (2) that this was conduct ‘most likely’ fitting a situational regressed sex offender. Dr Palk purports to resolve the anomaly by reference to a suggestion/finding that the Applicant’s offending was more motivated by situational factors such as historical depression, adjustment concerns and post-traumatic stress disorder. It would have been helpful to hear Dr Palk’s opinions about (1) precisely how the Tribunal should treat the Applicant’s remarks from the specific perspective of assessing the extent of the

re-establishment of his (the Applicant’s) good character; and (2) the extent to which the situational factors he identified as primarily motivating the Applicant’s unlawful conduct now militate for or against any finding about re-establishment of good character.
[116] R2, p 13, [4.2].
I have sought to have regard to the totality of the evidence and it has lead me to a state of satisfaction that this Applicant has not sufficiently re-established his good character to the extent required to satisfy this third factor. I have found that:
(a)the nature, severity and seriousness of his conduct is a factor which weighs very heavily in favour of a finding that allowing him to remain an Australian citizen would be contrary to the public interest;
(b)the circumstances in and around the grant of Australian citizenship to this Applicant in April 1997 is a factor that weighs very heavily in favour of a finding that allowing him to remain an Australian citizen would be contrary to the public interest;
(c)my lack of satisfaction about the extent to which the Applicant can now be found to have re-established himself as being of good character is a factor moderately facilitative of a finding that allowing him to remain an Australian citizen would be contrary to the public interest;
I am therefore satisfied from the totality of the evidence that it would be contrary to the public interest for the Applicant to continue to enjoy the privilege of Australian citizenship. For completeness, I will now consider whether it is appropriate to exercise the discretion to revoke the Applicant’s citizenship.
ISSUE 2: EXERCISE OF THE DISCRETIONARY POWER IN S 34(2) OF THE CITIZENSHIP ACT
Contended factors going to the exercise of the discretion
The discretionary power to exercise the relevant discretion is contained in section 34(2) of the Act. In determining whether it is appropriate to exercise this discretionary power:
‘… 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.’[117]
[117] WBU, paragraph [44].
There is a propounded concern on behalf of the Applicant that in the event of revocation of his Australian citizenship, he could, at some future point, become the subject of visa cancellation proceedings by the Respondent. The agitation of these concerns is ventilated via certain correspondence dated 1 October 2021 from the Respondent’s Department to the Applicant.[118] This correspondence gives ‘Notice of intention to consider cancellation [his ex-citizen visa] under s501(2) of the Migration Act 1958 (Cth)’.[119] This notification comprises the expression of an intention by the Minister to do something about his visa status. It does not definitively tell the Applicant the Minister has done something about his visa status.
[118] A8, Annexure VL-1; pp 1-5.
[119] A8, Annexure VL-1, p 1.
While it can be accepted that the Applicant may harbour concerns about his visa status consequent upon an adverse outcome in the instant proceeding, any adverse outcome in relation to his visa status, including his possible removal from Australia can only, for present purposes, be found to be matters of mere speculation such that no substantial of dispositive weight could be allocated to them.
In WBU, the Tribunal noted:
“… furthermore, that, in those circumstances, [i.e., the grant of an ex-citizen visa] 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 distress and hardship to the applicant and to his wife… the Tribunal notes that the most serious adverse consequences which may result from depriving the applicant 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.”[120]
[My underlining]
[120] WBU, paragraphs [46]–[47].
The Applicant will have the right to ventilate his case in response to any discretionary proceedings brought by the Respondent Minister pursuant to s 501(2) of the Migration Act 1958 (Cth) (‘the Migration Act’). The outcome of any such proceedings is not presently known and this Tribunal has no way of knowing whether the Respondent Minister will ever propound those proceedings against this Applicant. Further, the propounded adverse conditions likely to confront the Applicant upon any removal to El Salvador is not something to which this Tribunal ought be reasonably expected to turn its mind because the outcome of the postulated discretionary cancellation proceedings is not known. Ultimately, I consider (and I find) that this issue is not a matter bearing upon the discretion contained in s 34(2) of the Act.
I am mindful of the requirement to take into account, and give real consideration to, the circumstances of persons affected by this decision and to otherwise reflect on the human consequences resulting from it.[121] I am mindful of a possible but speculative reality that the Applicant may ultimately – by virtue of this decision – be deprived of his visa status to remain here and to otherwise be removed from his family and returned to his country of origin. That said, I do not consider (or find) that this Tribunal is thereby compelled to engage with any consequences of a later decision and that such a compulsion otherwise speaks to or conditionalizes this Tribunal’s exercise of the discretion contained in s 34(2) of the Act.
[121] Hands v Minister for Immigration & Border Protection (2018) 267 FCR 628 at [3].
I find that neither (1) possible discretionary cancellation proceedings pursuant to s 501(2) of the Migration Act; or (2) the possible human consequences arising from a later decision displace the balance of the factors inherent in the evidence militating in favour of this Tribunal exercising the discretion appearing at s 34(2) of the Act.
SUMMARY OF FINDINGS AND CONCLUSION
Issue 1: Public Interest – section 34(2)(c) of the Citizenship Act
With reference to the factors informing a decision-maker about whether it is contrary to the public interest for the Applicant to remain an Australian citizen I have made findings about:
(i)the seriousness of the Applicant’s offending;
(ii)the likelihood of him not being granted Australian citizenship (in April 1997) for failing the good character requirement in s21(2)(h) of the Act, had the Respondent known of his offending; and
(iii)the extent to which the Applicant has re-established his good character.
The cumulative weight I have allocated to each of the three factors itemized as (i), (ii) and (iii) in the immediately preceding paragraph leads me to a finding that it would be contrary to the public interest for the Applicant to continue to have the privilege of Australian citizenship.
Issue 2: Exercise of the discretionary power in section 34(2) of the Act
(i)I have found that the factors weighing in favour of exercising the discretion to revoke the Applicant’s Australian citizenship outweigh the factors against not doing so; and
(ii)Accordingly, I exercise the relevant discretion to revoke the Applicant’s Australian citizenship.
DECISION
Pursuant to section 43(1) of the Administrative Appeals Tribunal Act 1975, the decision of the Respondent dated 5 October 2020 is affirmed.

I certify that the preceding 115 (one hundred and fifteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

................[SGD]...................
Associate
Dated: 28 June 2023

Date of hearing: 20 March 2023

Counsel for the Applicant: Dr R I E Lake

Solicitor for the Applicant: Ms Victoria Lenton (Principal Lawyer)

Lenton Migration Law & Consultancy

Counsel for the Respondent: Mr J D Byrnes

Solicitor for the Respondent: Mr David McLaren (Senior Associate)

Minter Ellison Lawyers
ANNEXURE A

EXHIBIT

DESCRIPTION OF EVIDENCE

DATE OF DOCUMENT

DATE RECEIVED

T1

T-Documents (T1-T15, paged 1-75)

Various

5 May 2022

R1

Respondent’s Statement of Facts, Issues and Contentions (paged 1-15)

29 Nov 2022

7 Dec 2022

R2

Supplementary T-Documents

(S1-S13, paged 1-61)

Various

30 Nov 2022

R3

Respondent’s Consolidated Submissions on Extension of Time Application, unsigned (paged 1-5)

10 Feb 2022

10 Feb 2022

A1

Applicant’s Statement of Facts, Issues and Contentions (1-9 pages)

30 Sep 2022

30 Sep 2022

A2

Applicant’s Tender Bundle:

·     Annexure A (paged 1-6)

International Social Security Association, Social Security Programs Throughout the World: The Americas, 2019, SSA Publication No. 13-11804 (March 2020) 163-168

·     Annexure B (paged 7-48)

US State Department, El Salvador 2021 Human Rights Report (Report)

·     Annexure C (paged 49-54)

United Nations Development Programme, Human Development Report 2021/2022

·     Annexure D (paged 55-146)

UK Home Office, El Salvador: Fear of gangs (Country Policy and Information Note, version 3.0, January 2021)

Various

30 Sep 2022

A3

Applicant’s Statutory Declaration (1-2 pages)

26 Nov 2021

28 Jan 2022

A4

Applicant’s further Statutory Declaration
(1-3 pages)

27 Jan 2022

28 Jan 2022

A5

Amabilia Orellana Garcia’s Statutory Declaration (1 page)

27 Jan 2022

28 Jan 2022

A6

Confirmation of Concession Card Entitlement and scans of Pensioner Concession Card
(1-3 pages)

27 Jan 2022

28 Jan 2022

A7

2 x Income Statements from Centrelink
(1-4 pages)

25 Nov 2021

28 Jan 2022

A8

Affidavit of Victoria Lenton with attachments (pages 1-3)

·     Annexure VL-1 (pages 1-5)

Notice of intention to consider cancellation under s501(2) of the Migration Act 1958, dated 1 October 2021.

·     Annexure VL-2 (pages 1-6)

International Social Security Association, Social Security Programs Throughout the World: The Americas, 2019, SSA Publication No. 13-11804 (March 2020) 163-168

Various

25 Feb 2022

Date of hearing:	20 March 2023
Counsel for the Applicant:	Dr R I E Lake
Solicitor for the Applicant:	Ms Victoria Lenton (Principal Lawyer)
Lenton Migration Law & Consultancy
Counsel for the Respondent:	Mr J D Byrnes
Solicitor for the Respondent:	Mr David McLaren (Senior Associate)
Minter Ellison Lawyers

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
T1	T-Documents (T1-T15, paged 1-75)	Various	5 May 2022
R1	Respondent’s Statement of Facts, Issues and Contentions (paged 1-15)	29 Nov 2022	7 Dec 2022
R2	Supplementary T-Documents (S1-S13, paged 1-61)	Various	30 Nov 2022
R3	Respondent’s Consolidated Submissions on Extension of Time Application, unsigned (paged 1-5)	10 Feb 2022	10 Feb 2022
A1	Applicant’s Statement of Facts, Issues and Contentions (1-9 pages)	30 Sep 2022	30 Sep 2022
A2	Applicant’s Tender Bundle: · Annexure A (paged 1-6) International Social Security Association, Social Security Programs Throughout the World: The Americas, 2019, SSA Publication No. 13-11804 (March 2020) 163-168 · Annexure B (paged 7-48) US State Department, El Salvador 2021 Human Rights Report (Report) · Annexure C (paged 49-54) United Nations Development Programme, Human Development Report 2021/2022 · Annexure D (paged 55-146) UK Home Office, El Salvador: Fear of gangs (Country Policy and Information Note, version 3.0, January 2021)	Various	30 Sep 2022
A3	Applicant’s Statutory Declaration (1-2 pages)	26 Nov 2021	28 Jan 2022
A4	Applicant’s further Statutory Declaration (1-3 pages)	27 Jan 2022	28 Jan 2022
A5	Amabilia Orellana Garcia’s Statutory Declaration (1 page)	27 Jan 2022	28 Jan 2022
A6	Confirmation of Concession Card Entitlement and scans of Pensioner Concession Card (1-3 pages)	27 Jan 2022	28 Jan 2022
A7	2 x Income Statements from Centrelink (1-4 pages)	25 Nov 2021	28 Jan 2022
A8	Affidavit of Victoria Lenton with attachments (pages 1-3) · Annexure VL-1 (pages 1-5) Notice of intention to consider cancellation under s501(2) of the Migration Act 1958, dated 1 October 2021. · Annexure VL-2 (pages 1-6) International Social Security Association, Social Security Programs Throughout the World: The Americas, 2019, SSA Publication No. 13-11804 (March 2020) 163-168	Various	25 Feb 2022