Re Osorio and Minister for Immigration and Citizenship
[2007] AATA 59
•13 February 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 59
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2006/195
GENERAL ADMINISTRATIVE DIVISION ) Re NESTOR ARNOLDO OSORIO Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Deputy President S D Hotop Date13 February 2007
PlacePerth
Decision The Tribunal affirms the decision under review.
.........[Sgd S D Hotop]........
Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – citizenship – deprivation of citizenship – applicant granted Australian citizenship – applicant subsequently convicted of serious sexual offences committed before application for citizenship – contrary to public interest for applicant to continue to be Australian citizen – considerations militating for and against discretionary power to deprive applicant of Australian citizenship – applicant should be deprived of Australian citizenship – decision under review affirmed
Australian Citizenship Act 1948 (Cth), s 21(1) and s 23D(3A)
McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70
Re Prasad and Minister Assisting Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 292
REASONS FOR DECISION
13 February 2007 Deputy President S D Hotop Introduction
1. The applicant, who is a citizen of El Salvador, migrated to Australia from El Salvador on 10 April 1991 as a political refugee. He subsequently applied for Australian citizenship and, on 26 September 1995, he was granted Australian citizenship.
2. On 2 September 1996, however, the applicant was convicted of 8 sexual offences against a child and on 26 September 1996 he was sentenced to various cumulative and concurrent terms of imprisonment ranging from 4 years to 1 year, resulting in an effective total term of imprisonment of 8 years.
3. On 23 May 2006 the Parliamentary Secretary to the (former) Minister for Immigration and Multicultural Affairs (now the Minister for Immigration and Citizenship) (“the respondent”), by reason of the abovementioned convictions, deprived the applicant of his Australian citizenship by order under s 21(1) of the Australian Citizenship Act 1948 (Cth) (“the Act”).
4. The applicant has applied to the Tribunal for review of the respondent’s decision.
The Issue and the Tribunal’s Determination
5. The issue for the Tribunal’s determination is whether the discretionary power, conferred by s 21(1) of the Act, to deprive the applicant of his Australian citizenship is enlivened in the circumstances of this case, and, if so, whether it should be exercised.
6. For the reasons which follow, the Tribunal has determined that that discretionary power is enlivened in the applicant’s case, and that it should be exercised so as to deprive the applicant of his Australian citizenship.
The Statutory Framework
7. The long title and preamble of the Act are as follows:
"An Act relating to Australian Citizenship
recognising that: –
Australian citizenship represents formal membership of the community of the Commonwealth of Australia; and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity; and
Persons granted Australian citizenship enjoy these rights and undertake to accept these obligations
by pledging loyalty to Australia and its people, and
by sharing their democratic beliefs, and
by respecting their rights and liberties, and
by upholding and obeying the laws of Australia:".
8. Section 13(1) of the Act authorises the Minister to grant a certificate of Australian citizenship to an applicant who satisfies the Minister that, among other things, he or she is a person “of good character”.
9. Section 21 of the Act, which deals with “deprivation of citizenship”, relevantly provides:
"(1) Where:
(a) a person who is an Australian citizen by virtue of a certificate of Australian citizenship:
(i)…; or
(ii) has, at any time after furnishing the application for the certificate of Australian citizenship (including a time after the grant of the certificate), been convicted of an offence against a law in force in a foreign country or against a law of the Commonwealth, a State or Territory for which the person has been sentenced to death or to imprisonment for life or for a period of not less than 12 months, being an offence committed at any time before the grant of the certificate (including a time before the furnishing of the application); or
(iii) …; and
(b) the Minister is satisfied that it would be contrary to the public interest for the person to continue to be an Australian citizen;
the Minister may, in the Minister’s discretion, by order, deprive the person of his or her Australian citizenship, and the person shall, upon the making of the order, cease to be an Australian citizen.
…”
10. Section 23D of the Act, which contains “special provisions to prevent persons being stateless”, relevantly provides:
"…
(3A) Where, but for this subsection, a person to whom subparagraph 21(1)(a)(ii) applies would, if the Minister were to make an order under subsection 21(1) in relation to that person, become a person who is not a citizen of any country, subsection 21(1) does not apply in relation to that person.
…"
The Evidence
11. The evidence before the Tribunal comprised:
·the “T Documents” (T1-T22, pp 1-98) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth); and
·the oral evidence of the applicant, and 2 documents tendered in evidence by the applicant (Exhibits A1 and A2).
The Factual background
12. The relevant background facts, as found by the Tribunal on the basis of the T Documents, are as follows.
13. The applicant was born on 2 February 1961 in El Salvador and he is a citizen of El Salvador.
14. He first arrived in Australia on 10 April 1991 as a permanent resident.
15. On 10 May 1995 the applicant made an application for a grant of Australian citizenship. His application was approved on 19 June 1995 and on 26 September 1995 he became an Australian citizen by reason of a grant of a Certificate of Australian Citizenship by the (then) Minister for Immigration and Ethnic Affairs.
16. On 2 September 1996 in the Supreme Court of Western Australia the applicant pleaded guilty to, and was convicted of, the following offences:
·3 counts of sexual penetration of a child under the age of 16 years, who he knew to be his lineal relative, on unspecified dates between 1 January 1993 and 21 August 1994;
·1 count of sexual penetration of a child under the age of 16 years, who he knew to be his lineal relative, on or about 23 December 1994;
·2 counts of sexual penetration of a child under the age of 16 years, who he knew to be his lineal relative, on unspecified dates between 21 August 1994 and 19 May 1996;
·1 count of indecently dealing with a child under the age of 16 years, who he knew to be his lineal relative, on an unspecified date between 1 January 1993 and 21 August 1994;
·1 count of indecently dealing with a child under the age of 16 years, who he knew to be his lineal relative, on an unspecified date between 21 August 1994 and 19 May 1996.
17. On 26 September 1996 in the Supreme Court of Western Australia the applicant was sentenced to imprisonment in respect of the abovementioned offences. The sentencing judge, Wallwork J, stated: fifteen’
"… You can stay seated, Mr Osorio. You are 35 years of age. You have pleaded guilty to six offences of sexually penetrating a child under the age of 16 years whom you knew to be your daughter, and also two additional charges of indecently dealing with the same child. You have pleaded guilty on the fast-track system and because you have saved a tremendous expense to the State by doing that and you have also saved the further damage to the child, of bringing her into this court, I will give you a substantial deduction from your proper sentence.
The child concerned, as I have said, was your daughter and was between 10 and 13 years of age when these offences were committed. I will not recite the facts again. They were fully set out by the learned crown prosecutor on 2 September ’96. In short, six of the offences involved having sexual intercourse with your daughter. You volunteered some of these offences to the police officers and I note that your wife continues to visit you and that you are the sole support of her and the two children and you hope to resume your family life.
I note also that you are said to have worked very hard since you came to Australia and it is common ground that you have been an excellent worker. I take into account everything that has been said on your behalf by your counsel… and the comments of your previous employer, from which I was given a reference. I also take into account what the learned crown prosecutor has said.
If it were not for the disastrous effects it would have on your family, I would sentence you to a very long sentence, indeed, for these offences. They are extremely serious offences because of the damage they do to innocent children, and, in this case, your innocent daughter, on whom you have inflicted the most serious problems which will probably last for the rest of her life. She is accepting and thinking that she should be in some way responsible for this – which, of course, she isn’t – and that is what you have done to her. Anyway, you must know that.
There must be very heavy penalties imposed in these cases to protect innocent children. However, because of the early pleas of guilty and your cooperation with the police, I will substantially reduce what would otherwise be an appropriate sentence, and I intend to sentence you to 8 years’ imprisonment. That will be comprised by sentencing you to 4 years’ imprisonment on count 1 and 4 years’ imprisonment on count 2, but the second sentence to be served after the first one.
On each of the other counts of sexual penetration you are sentenced to 4 years’ imprisonment, to be served at the same time as the first sentence, or concurrently with it. You are sentenced on the two offences of indecent dealing to 1 year’s imprisonment for each offence, also to be served concurrently, or at the same time, with the first 4-years sentence.
I hope you understand that if you ever did anything like this to another young child you would probably be looking at 10 or 12 years’ or more imprisonment. I will deduct 30 weeks from the second 4-year sentence to make up for the 19 weeks you have already been in custody. That will result in a total sentence, from today, of 7 years and 22 weeks’ imprisonment. I order that you are to be eligible for parole with respect to each sentence. Stand down."
18. By letter dated 27 May 1997 an officer of the (former) Department of Immigration and Multicultural Affairs (“the Department”) informed the applicant (who was then in prison) that he was liable to be deprived of his Australian citizenship pursuant to s 21(1)(a)(ii) of the Act, and that he intended to interview the applicant in prison “concerning [his] circumstances in the near future”.
19. On 17 December 1998 the applicant was interviewed by an officer of the Department, and a handwritten record of that interview was made by the officer.
20. By letter dated 22 December 1998 an officer of the Department informed the applicant’s (then) wife that the applicant was liable to be deprived of his Australian citizenship pursuant to s 21(1)(a)(ii) of the Act, and invited her to express her views on this matter to the Department in writing within 4 weeks.
21.
By letter dated 31 December 1998 the applicant’s (then) wife expressed her views to the Department as follows:
"
· The crimes committed by my husband at the time of us applying to become Australian Citizens were committed in secret and totally unknown to me. I therefore feel that my daughters and myself should not be penalized in any way and should therefore retain our Australian Citizenship rights. My daughter and her boyfriend have just recently had a baby boy; who is an Australian Citizen by birth.
· We arrived as a family in Australia on 10th April 1991 as political refugees from El Salvador. I strongly feel it is not in my husband’s best interest to return as the political atmosphere over there is still very unsettled and his life could well be in danger if he were to return.
· During telephone conversations with my husband, he has expressed remorse for his crimes. He’s told me that he is also willing to attend counselling sessions with a Psychiatrist on his release from prison.
· I do not wish my husband to live with us, but I am very happy for him to live in Western Australia. If I need to, I could offer a small amount of financial help until such a time that he could support himself."
22. By letter dated 22 September 2005 an officer of the Department again informed the applicant that, by reason of his convictions in September 1996, he was liable to be deprived of his Australian citizenship, and invited him to provide to the Department within 28 days “reasons in writing as to why the Minister should not deprive [him] of [his] Australian citizenship”.
23. The applicant responded to the Department by letter dated 14 October 2005 as follows:
"I arrived in Australia 14 years ago. I have come to love this country and proudly call myself Australian. I have taught others that even if we are not white and we were not born in this country, we were given another chance to have a new home to start a new life and to learn to love this beautiful country. It is a very open-minded society which welcomes all of us despite our different ethnical background, race, age, language, disabilities and culture. I would feel so sad if I cannot call myself an Aussie again.
I know I broke the law, I have paid for it and I will keep paying for the rest of my life. Now I have started my life again. I have a partner, with whom I have been with for more than three years and have plans on getting married next year. We have our own home. I have a permanent full-time job. I have recently registered a business in computer repairing in the view of establishing a business to contribute to the growth of the Australian economy. I have invested in promoting and advertising the business which is to be managed at home. I keep up to date with my parental duties in paying Child Support Payment, continue to pay all my dues, give help and support as required. I exercise my electoral obligations and privileges to help build a better community.
Deciding to become an Australian Citizen in 1995 clearly affirms my determination to make Australia my home. I am committed in becoming a better citizen and be valuable to the country and the citizens of this diverse multicultural society we belong to. Please, do not deprive me of my Australian Citizenship.
…"
Enclosed with that letter were 3 reference letters and other supporting documents.
24. On 23 May 2006 the respondent, by order under s 21(1) of the Act, deprived the applicant of his Australian citizenship. The applicant was so notified, and was given a copy of the order, by letter dated 6 June 2006 from the Department.
25. On 5 July 2006 the applicant applied to the Tribunal for review of the respondent’s decision. In an accompanying letter dated 4 July 2006 he stated the reasons for his application for review as follows:
·
The Decision of the Order for Deprivation of Citizenship under section 21 was based on past conduct already been served. I have been released to the community in the past five years. Since then, I have not re-offended or been involved in any criminal act and have no future intention to do so. Evidence of my present general conduct is attested by the community. See attachment C for statutory declarations of members of the community and employment character reference from my current employer.
"
· Under section 13(f) of the Citizenship Act 1948, the person is of good character is based on the two years of good character of living in Australia. Documentation of my present general conduct for the last five and half years is attested by the community (attachment C) and being released to the community upon completion of my sentence confirms that it is not contrary to the public interest for me to continue to be an Australian citizen.
· Under section 13(d) of the Citizenship Act 1948, the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than one year during the period of 2 years immediately preceding the date of the furnishing of the application. This is a pre-requisite for a person to be granted citizenship. I have been living in Australia for the past five and half years after my release to the community in 2001 after my detention and therefore have exceeded the requirement to be granted citizenship." (original emphasis)
The Applicant’s Case
The applicant’s evidence
26. The contents of the applicant’s oral evidence may be summarised as follows:
·the victim of the sexual offences which he committed in the period from January 1993 to May 1996 was his step-daughter – not his natural daughter – who was born on 7 January 1982;
·he did not disclose his offending to the Department when he applied for citizenship in May 1995, and he was granted citizenship in September 1995;
·he was charged with the abovementioned offences in May 1996, and he was convicted and sentenced to imprisonment in September 1996;
·as a result of the abovementioned offences his family “broke up completely”, and his step-daughter (the victim) attempted to commit suicide;
·although he and the mother of the victim have since divorced, they are still “good friends”;
·his former step-daughter (the victim) is now married and has a child, but he sees her only “rarely”;
· he was released from custody (without restrictions) in September 2001;
·from September 2001 he was employed as a painter/decorator for about 2 years but he then ceased work as a result of a work-related injury and received workers’ compensation;
·he commenced employment with “Truckline” in February 2005 for the purpose of vocational rehabilitation, and in May 2005 he became a full-time employee of that firm and continued to be employed there until October 2006 (a letter of reference from a Branch Manager of “Truckline”, dated 24 October 2006, confirming his employment details, was tendered in evidence (Exhibit A1));
·from 2003 he completed TAFE Certificate I, II and III Courses in Information Technology;
·in October 2006 he became a full-time student in the Certificate IV Computer Technician course at HandsOn Computer Training International and he is presently undertaking a Network Administrator program as part of that course which is due for completion in April 2007 (a letter from the Registrar, HandsOn Computer Training International, dated 30 October 2006, confirming his enrolment details, was tendered in evidence (Exhibit A2));
·he did not participate in any sex offender treatment programs while in prison because he wanted individual counselling but was only offered a group program;
·because he did not participate in any sex offender treatment programs while in prison, he was not granted parole;
·from 2003 to 2005 he engaged in meditation sessions with Buddhist monks at the Buddhist Temple in Nollamara and he found those sessions to be very beneficial in enabling him to gain an insight into his offending behaviour and to rehabilitate himself;
·since his release from prison in September 2001, he has not undergone any psychological or other professional counselling regarding his offending behaviour or assessments regarding the risk of his re-offending;
·he has not committed any offences since his release from prison in September 2001, and he intends not to commit any offences in the future;
·he is now a “different person” and he is committed to becoming a better citizen and a valuable member of the Australian community.
Additional evidence relied on by the applicant
27. The applicant relied on the following documents included in the T Documents:
·statutory declaration of Ann Melinda Carmody, Vocational Case Manager, dated 21 June 2006, attesting to the applicant’s honesty and diligence in participating in his vocational rehabilitation program from June 2003 to May 2005 (T1, p 14);
·statutory declarations of Alfred Zammit, Maria Teh (the applicant’s partner since 2001), Rafael Dugnas, and Telma Rojas, dated 20 June 2006, attesting to the applicant’s good character (T1, pp 15-18);
·letter from Ana Mirian Osorio to the Department, dated 31 December 1998 (T18)(set out in paragraph 21 above);
·letter from the applicant to the Department, dated 14 October 2005 (set out in paragraph 23 above), and enclosures including letters of support from the applicant’s present partner, his natural daughter (not the victim of his offences), and his ex-wife’s partner, and a copy of the notification of the registration of the Australian Business Number in respect of his computer services business, dated 4 August 2004 (T20, pp 80-87).
28. The applicant also relied on the letter from a Branch Manager of “Truckline”, dated 24 October 2006 (Exhibit A1), which, in addition to confirming his full-time employment with that firm from 9 May 2005 to 4 October 2006, attested to his “impeccable” conduct in the “work environment” and his strong work ethic, and his personal reliability and integrity.
The Respondent’s Case
29. The respondent relied on the T Documents and did not call any witnesses or tender any additional evidence at the hearing.
Analysis
30. It is common ground, and the Tribunal finds on the basis of the T Documents, that:
·the circumstances specified in s 21(1)(a)(ii) of the Act are satisfied in the applicant’s case;
·the applicant remains a citizen of El Salvador, and, because the making of an order under s 21(1) of the Act depriving him of his Australian citizenship would not render him a “stateless” person, s 23D(3A) of the Act does not apply so as to prevent the application of s 21(1) in this case.
31. Accordingly, the issues that arise for determination in this case are:
·whether, for the purposes of s 21(1)(b) of the Act, the Tribunal is satisfied that it would be “contrary to the public interest” for the applicant to continue to be an Australian citizen; and, if so,
·whether the discretionary power conferred by s 21(1) of the Act, to deprive a person of his/her Australian citizenship, should be exercised in the applicant’s case.
Would it be “contrary to the public interest” for the applicant to continue to be an Australian citizen?
32. In McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70, Tamberlin J referred to the phrase “the public interest” and cited relevant case law as follows (at 75-76):
"The public interest is not one homogenous undivided concept. It will often be multi-faceted and the decision-maker will have to consider and evaluate the relative weight of these facets before reaching a final conclusion as to where ‘the public interest’ resides. This ultimate evaluation of the public interest will involve a determination of what are the relevant facets of the public interest that are competing and the comparative importance that ought to be given to them so that ‘the public interest’ can be ascertained and served. In some circumstances, one or more considerations will be of such overriding significance that they will prevail over all others. In other circumstances, the competing considerations will be more finely balanced so that the outcome is not so clearly predictable. For example, in some contexts, interests such as public health, national security, anti-terrorism, defence or international obligations may be of overriding significance when compared with other considerations.
In the context of freedom of information, the notion of ‘the public interest’ was helpfully considered by the Appeal Division of the Supreme Court of Victoria in Director of Public Prosecutions v Smith [1991] 1 VR 63 at [75], where Kaye, Fullagar and Ormiston JJ said:
The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals: Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 at 480, per Barwick CJ. There are … several and different features and facets of interest which form the public interest.
The expression ‘the public interest’ was also the subject of consideration by Lehane J in Botany Bay City Council v Minister for Transport and Regional Development (1996) 66 FCR 537 at 566-567; 137 ALR 281 at 308…
His Honour also referred to the statement by Mason CJ, Brennan, Dawson and Gaudron JJ in O’Sullivan v Farrer (1989) 168 CLR 210 at 216 that:
Indeed, the expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only ‘in so far as the subject matter and the scope and purpose of the statutory enactments may enable…’
See also Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 and Re Thompson’s Application; Hannaford v Fysh [1964] Tas SR 129 at 143-144."
33. In Re Prasad and Minister Assisting Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 292 the Tribunal, in relation to the “public interest” provision in s 21(1)(b) of the Act, said (at 301):
"(39) Mr Downing [for the respondent] drew to the tribunal’s attention the scheme provided by the [Australian Citizenship] Act and the Migration Act which normally requires an immigrant who wishes to become an Australian citizen first to obtain permanent resident status under the Migration Act, then to be a permanent resident for two years and only after that to be eligible for citizenship. Together the two Acts are designed to ensure, so far as is possible, that only persons of good character with an adequate knowledge of the responsibilities and privileges of Australian citizenship are granted citizenship. It is of paramount importance, therefore, that information relevant to the character of a person applying for citizenship which is provided to the respondent is true and given in a manner which is not likely to impede the proper assessment of that person’s character."
34. The applicant conceded that, at the time when he applied for, and was granted, Australian citizenship in, respectively, May and September 1995, he was not a person of good character because at that time he had commenced the commission of the series of relevant sexual offences against his step-daughter of which he was convicted in September 1996. He, furthermore, frankly conceded that he should not have been granted Australian citizenship at that time, and that it would have been appropriate to deprive him of his Australian citizenship upon his conviction of those offences or within a reasonable period thereafter. He submitted, however, that in the period of approximately 5½ years since his unconditional release from prison in September 2001, he had re-established his good character such that it would not now be contrary to the public interest for him to continue to be an Australian citizen.
35. It is axiomatic that it is in the public interest that a person who is granted Australian citizenship under s 13(1) of the Act be a person of good character at the time of the grant of Australian citizenship and continue thereafter to be a person of good character and, accordingly, not engage in criminal conduct which is incompatible with good character. It follows, in the Tribunal’s opinion, that it would be contrary to the public interest, for the purposes of s 21(1)(b) of the Act, for a person, who has been granted Australian citizenship under s 13(1) of the Act, to continue to be an Australian citizen in circumstances where that person:
·was, unbeknown to the respondent and the Department, engaging in criminal conduct incompatible with good character at the time of the grant of Australian citizenship; and
· has not subsequently become a person of good character.
36. In the present case the applicant, at the time when he applied for, and was granted, Australian citizenship, was, unbeknown to the respondent and to the Department, engaging in the commission of a series of sexual offences against his step-daughter (who was then aged 13 years) which are extremely serious and utterly repugnant and which are grossly incompatible with good character. Clearly, the applicant was not a person of good character when he applied for, and was granted, Australian citizenship in 1995.
37. As regards the question whether the applicant has subsequently become a person of good character, the Tribunal notes that, although there is no evidence before it regarding the applicant’s conduct during the period of his incarceration from May 1996 to September 2001, there is evidence before it in the form of statutory declarations and letters of support from individuals attesting to his good character, good conduct and strong work ethic in the period since his release from prison in September 2001 (see paragraphs 27-28 above). The Tribunal also notes the applicant’s own evidence regarding his employment record and vocational retraining in Information Technology since his release from prison (see paragraph 26 above).
38. The Tribunal notes, on the other hand, that the applicant, according to his own evidence, did not participate in any sex offender treatment programs while in prison, and has not, since his release from prison, undergone any psychological or other professional counselling regarding his offending behaviour or assessments regarding the risk of his re-offending, although he has, according to his evidence, engaged in meditation sessions with Buddhist monks from 2003 to 2005 which he found very beneficial for the purpose of his rehabilitation (see paragraph 26 above). The Tribunal also notes the applicant’s evidence that he has not committed any offences since his release from prison, that he intends not to re-offend, and that he is committed to becoming a better citizen and a valuable member of the Australian community.
39. Having regard, however, to:
·the very serious and utterly repugnant nature of the applicant’s sexual offending, and the substantial period over which it occurred; and
·the absence of any objective professional evidence to the effect that the applicant has been successfully rehabilitated, that his good character has been re-established, and that there is no or, at most, minimal risk of his reoffending;
the Tribunal, notwithstanding the abovementioned evidence supportive of the applicant, is not satisfied that the applicant is presently a person of good character.
40. In these circumstances, the Tribunal is satisfied, for the purposes of s 21(1)(b) of the Act, that it would be “contrary to the public interest” for the applicant to continue to be an Australian citizen.
Should the discretionary power conferred by s 21(1) of the Act, to deprive a person of his/her Australian citizenship, be exercised in the applicant’s case?
41. In determining whether it is appropriate to exercise the discretionary power conferred by s 21(1) of the Act in the applicant’s case, the considerations to which the Tribunal should have regard include the advantages to Australian society on the one hand, and the disadvantages or hardship to the applicant and to other persons on the other hand, which would, or would be likely to, result from depriving the applicant of his Australian citizenship: Re Prasad (above) at 302.
42. The Tribunal accepts the respondent’s submission that the advantages to Australian society which would result from depriving the applicant of his Australian citizenship include:
·removal from the applicant of the status of Australian citizenship which would certainly not have been granted to him had the Department been aware of his very serious offending behaviour at that time;
·the likely deterrence of other applicants, or proposed applicants, for Australian citizenship from committing serious offences, or, having committed offences, from failing to inform the Department thereof.
43. The Tribunal also accepts, however, that depriving the applicant of his Australian citizenship would not only cause him to feel great personal disappointment and sadness but would also effectively deprive him of the freedom to travel from and to Australia. The latter consequence would follow by reason of s 35 of the Migration Act 1958 (Cth) pursuant to which the applicant, at the time of his ceasing to be an Australian citizen, is taken to have been granted an ex-citizen visa (s 35(3)) – that is, a permanent visa to remain in, but not to re-enter, Australia (s 35(1)). The Tribunal notes, furthermore, that, in those circumstances, the applicant would be exposed to the risk of future cancellation of his ex-citizen visa on character grounds, pursuant to s 501(2) of the Migration Act, and consequential removal from Australia. The Tribunal accepts that such a consequence would cause great personal hardship to the applicant and at least substantial emotional hardship to his partner and to his natural daughter, and to a lesser extent to his ex-wife and friends.
44. The Tribunal also notes that the decision to deprive the applicant of his Australian citizenship, which is under review in the present case, was not taken until 23 May 2006 – that is, some 4 years and 8 months after he was released from prison, and some 9 years after he was first informed by the Department that he was liable to be deprived of his Australian citizenship by reason of his criminal convictions in September 1996. In the Tribunal’s opinion that substantial delay on the part of the Department, in the course of which the applicant was seeking to rebuild his life in Australia after his release from prison in the likely expectation that no adverse action was going to be taken by the Department, can only serve to exacerbate the degree of disappointment and hardship caused to the applicant by the eventual decision to deprive him of his Australian citizenship.
45. Having regard to, and balancing, all of the abovementioned considerations, the Tribunal is of the opinion that it is appropriate to exercise the discretionary power conferred by s 21(1) of the Act to deprive the applicant of his Australian citizenship. In the Tribunal’s assessment, the considerations referred to in paragraphs 43-44 above, which militate against an exercise of that discretionary power, are clearly outweighed by the considerations referred to in paragraph 42 above which militate in favour of an exercise of that discretionary power, including the fact that the applicant, at the very time when he applied for Australian citizenship and was awaiting the outcome of his application, was, unbeknown to the Department, engaged in committing a series of very serious and repugnant sexual offences against his 13-year-old step-daughter – conduct which clearly demonstrated that he was not of good character and that he was utterly unworthy of Australian citizenship, and which, had the Department been aware of it, would certainly have resulted in the rejection of his application. In arriving at that conclusion, the Tribunal notes that the most serious adverse consequences which may result from depriving the applicant of his Australian citizenship – namely, the cancellation of his ex-citizen visa and his removal from Australia – are presently matters of mere speculation and, accordingly, although the Tribunal has had regard to those matters, it has not attached substantial weight to them.
Decision
46. For the above reasons, the Tribunal affirms the decision under review.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
Signed: ............... [Sgd Y Maker].................
AssociateDate of Hearing 24 January 2007
Date of Decision 13 February 2007
Counsel for the Applicant In person
Counsel for the Respondent Mr A Gerrard
Solicitor for the Respondent Australian Government Solicitor
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