Rosales and Minister for Immigration and Citizenship
[2008] AATA 518
•20 June 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 518
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/384
GENERAL ADMINISTRATIVE DIVISION ) Re ARMAN ABUYAN ROSALES Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Mr Julian Block, Deputy President Date20 June 2008
PlaceSydney
Decision The decision under review is affirmed. ................[sgd]..............................
Mr Julian Block
Deputy President
CATCHWORDS
IMMIGRATION – citizenship – application for citizenship – applicant convicted of serious sexual offences – applicant denied citizenship on character grounds – evidence of applicant untruthful - applicant failed to demonstrate good character – decision under review affirmed
Australian Citizenship Act 1948: Section 13
Australian Citizenship Act 2007: Sections 21, 50
Australian Citizenship (Transitionals and Consequentials) Act 2007: Item 7, Schedule 3
Re Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Re Osorio and Minister for Immigration and Citizenship [2007] AATA 59
Re Chen v Minister for Immigration and Citizenship [2007] AATA 1815
Milnar v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771
Australian Citizenship Instructions: Chapter 10
REASONS FOR DECISION
20 June 2008 Mr Julian Block, Deputy President PART A - preliminary and background
1. The decision under review is the refusal by the Respondent of an application for Australian citizenship made by the Applicant on 17 March 2007 under s 13 of the Australian Citizenship Act 1948 (“the Old Act”). That application was not decided by 1 July 2007, which was the commencement date of the Australian Citizenship Act 2007 (“the Act”). Accordingly and by virtue of Item 7(2) of Schedule 3 to the Australian Citizenship (Transitionals and Consequentials) Act 2007 (“the Transitional Act”), the Applicant’s application for citizenship is taken to have been made under s 21 of the Act.
2. All names contained in these reasons are the real names of the persons involved but with the exception of the Applicant's second de facto partner, their daughter and her daughter by her previous relationship, and who was the victim in respect of the sexual offences referred to in these reasons. Their names have been altered so as to ensure that the identity of the victim is, so far as is possible, not revealed. It follows that in respect of those persons only the names used are pseudonyms; in quoted material, altered names appear in brackets.
3. The Applicant was self-represented. Mr Tigiilagi Eteuati of Clayton Utz, solicitors, appeared on behalf of the Respondent.
4. The Tribunal had before it the T documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975; it also admitted into evidence exhibits as follows:
Exhibit A1:A statement dated 31 March 2008 by Dr Ali Sahebi, Treatment Coordinator of the NSW Pre trial Diversion of Offenders program (Cedar Cottage);
Exhibit A2:A statement dated 25 February 2008 by B&M Plastics Pty Ltd;
Exhibit A3:A statement dated 19 April 2008 by (Rev Fr) Barry Brundell, Parish Priest of Our Lady of Perpetual Succour Catholic Parish, Erskineville;
Exhibit A4:A statement dated 14 April 2008 by Dr M Guirguis of United Care Medical Centre; and
Exhibit R1:A large bundle of documents obtained by the Respondent under summons.
5. The Respondent’s Statement of Facts and Contentions (SoFaC) dated 2 June 2008 contains under the head of “Facts” a chronological recital of the relevant facts reading as follows:
FACTS
01/08/1957
Mr Arman Abuyan Rosales (the applicant) is born in Torrijos, Philippines [T4, p 41]
28/07/1985
The applicant first arrives in Australia [T2, p 5]
01/02/1995
The applicant is issued a permanent Class BF Return Class A (Subclass 154) visa [T2, p 5]
26/11/2003
The applicant is charged with Aggravated Indecent Assault – Victim Under the Age of 16 Years – T1 and two counts of Aggravated Sexual Intercourse Person >= 10 Years – SI [T5, p 59]
20/01/2005
The applicant pleads guilty to the above charges in the New South Wales District Court and enters into an undertaking under the Pre-Trial Diversion of Offenders Act 1985 (NSW) (PDO Act) for the period of two years (the Undertaking)
15/06/2006
The Office of the Director of Public Prosecutions (DPP) is notified that Mr Rosales has breached the Undertaking
27/06/2006
As a result of the breach His Honour Judge Hosking SC of the New South Wales District Court extends the Undertaking for four months (the Undertaking Extension)
28/11/2006
The DPP is again notified that Mr Rosales has breached the undertaking
16/01/2007
As a result of the breach His Honour Judge Solomon of the New South Wales District Court extends the Undertaking for a further six months until 13 May 2007 (the Second Undertaking Extension)
17/03/2007
The applicant applies for a grant of Australian citizenship under section 13 of the Australian Citizenship Act 1948 (Cth) (old Act) [T2, p 5 & T4 pp 41-57]
08/01/2008
The Department of Immigration and Citizenship (the Department) received Crimtrac search results revealing that the applicant plead [sic] guilty to the above offences and entered in the Undertaking [T5, pp 58-59]
11/01/2008
A delegate of the Minister for Immigration and Citizenship (Minister) refuses the applicant’s application for conferral of Australian citizenship on the basis that he is not of good character [T2, p 6]
29/01/2008
The applicant applies to the Administrative Appeals Tribunal (Tribunal) for review of the decision to refuse his application for Australian citizenship [T1, pp 2-3]
6. It is convenient also to draw on the Respondent’s SoFaC for the Applicant's criminal history; clauses 12 to 15 read as follows:
The applicant’s criminal history
12.On 26 November 2003, the applicant was charged with Aggravated Indecent Assault – Victim Under the Age of 16 Years (see section 61M(1) of the Crimes Act 1900 (NSW)) and two counts of Aggravated Sexual Intercourse – Person >= 10 Years (see section 66C(2) of the Crimes Act 1900 (NSW)) (the Offences). The victim was the applicant’s 10 year-old step-daughter, [Kate Smith]. The evidence indicates that the applicant resided with and was a responsible carer of [Kate Smith] at the time he committed the Offences against her. Further, the evidence suggests that the applicant’s sexual abuse of [Kate Smith] occurred on a regular basis over the period of three to four years and that Mr Rosales had threatened to kill [Kate] and her mother if [Kate] told anyone about the abuse.
13.On 20 January 2005, the applicant pleaded guilty to the Offences and entered into the Undertaking. The Undertaking was for a two year period from 14 July 2004 (back-dated) until 13 July 2006.
14.The Undertaking was entered into under the PDO Act. The purpose of the PDO Act is to provide for the protection of children who have been victims of sexual assault by a parent or a parent’s spouse or de facto partner (see section 2A of the PDO Act). The PDO Act established the New South Wales Pre-Trial Diversion of Offenders Program (Child Sexual Assault) (Program). If a person is assessed as “suitable” for the Program and the person pleads guilty to the charges, rather than sentence the offender, the Court can request the person to give an undertaking to participate in the Program for a period not exceeding 2 years (see section 23 of the PDO Act).
15.Where the Court is satisfied that a participant has breached an undertaking, the Court may, pursuant to section 28 of the PDO Act, direct that the undertaking to participate in the Program be extended. On two occasions the applicant breached the Undertaking, resulting in the Court exercising its power under section 28 of the PDO Act to grant the Undertaking Extension and the Second Undertaking Extension.
7. Further as to the Applicant’s criminal history, the Tribunal refers to T pp59-60 a copy of which is attached to these reasons and marked with the letter “A”.
PART B - the applicant's evidence: evidence in chief
8. The Applicant did not furnish a statement setting out the evidence which he intended to give; Mr Eteuati did not insist on compliance with this requirement.
9. The Applicant, who is a sign-writer by trade, came to Australia from the Philippines in 1985; he had before coming to Australia graduated from high school in the Philippines. He is currently employed by B&M Plastics earning a salary gross of $700 per week.
10. The Applicant has had two failed relationships (neither involving a marriage) with a woman. Ms L Rosales followed the Applicant to Australia from the Philippines. That relationship lasted for (so the Applicant said) 14 years and produced a son who is now 22 years old and a bank teller who lives with his mother in Sydney. (The reference by the Applicant to a period of 14 years was inaccurate because if that relationship commenced in 1985, other evidence indicated that it endured until 2001 when the Applicant became involved with the second of the two women, and being Kim Smith).
11. Kim Smith also comes from the Philippines having arrived in Australia with her family in the mid-1990s. She has a daughter, Kate (referred to by the Applicant as his step-daughter) and also another daughter Sarah, whose father is the Applicant and who is now about six years old and for whom the Applicant pays maintenance of $100 per fortnight.
12. The Applicant said that he abused Kate sexually on one occasion only and that was on the night of 25 November 2003. He said that he moved in with her mother Kim in January 2001 and stayed with her until his arrest in November 2003.
13. The Applicant said, more specifically, that the three acts referred to previously in the Applicant's criminal history occurred once only on 25 November 2003. He said that Kim and Sarah were also in the house at the time. He said furthermore, as to Kate's allegation that he had threatened to kill her and her mother if Kate told anyone of his offences, that his threat was not to kill them but rather to hurt them and by which he intended to refer merely to the withdrawal of financial support.
14. Exhibit A1 refers to the New South Wales Pre-Trial Diversion of Offenders Program, which was referred to during the hearing by the Applicant and is referred to in these reasons as “the Program”. (The Applicant’s criminal history set out in these reasons refers to the Program as “the Undertaking” and these terms are, for all practical purposes, interchangeable).
15. It was put to the Applicant that on two occasions the period of the Undertaking (originally two years) was extended because of breaches by him. He said that this occurred because he did not understand the language and more particularly, what was required of him.
16. In November 2003, Kate was about 10 years old while Sarah was about 18 months old. The Applicant was asked why he committed the sexual offences (and according to him, and as set out previously, on one occasion only) and his answer was “I have no idea”. He said that the offences in question did not occur prior to 14 November 2003 and must have occurred on 25 November 2003, the day before he was arrested. He said also that he was drunk and that he was lonely.
17. During the period of the Program, which lasted because of the extensions referred to previously in these reasons, longer than the original period of two years, the Applicant lived in accommodation in Erskineville. The period referable to the Undertaking expired in June 2007; however, the Applicant applied for citizenship in March 2007, and thus at a point in time prior to the date on which his obligations under the Program ended. He said that he did so “to have a better achievement in my life”. (It may be noted that as set out previously, the Applicant came to Australia in 1985 and so that he could have applied for citizenship at a much earlier date).
18. The Applicant said that he has no relatives in Australia other than his son and Sarah for whom, as set out previously, he pays maintenance of $100 per fortnight.
PART C - the cross-examination of the applicant
19. It is convenient at this juncture to draw attention to the fact that Exhibit R1 contains a large number of documents and including the records of two interviews of Kate by the police.
20. Page 28 of Exhibit R1 is headed “Notification of Suspected Child Abuse or Neglect”; the notification date is 24 November 2003 and the “grounds for concern” are set out therein as follows:
2 students reported that [Kate] had told them her step-father has been raping her for 3 years and has threatened that if she tells anyone he will kill her and her mother. The assaults happen when her mother is at work.
21. Pages 44 to 78 of Exhibit R1 contain the record of the first interview of Kate by the police on 26 November 2003. Attached to these reasons and marked with the letter “B” is an extract from that record commencing with page 61 and ending with page 67.
22. Exhibit R1 also contains the record of a further police interview with Kate on 18 December 2003; attached to these reasons and marked with the letter “C” are pages 80 and 81.
23. The cross-examination of the Applicant can moreover conveniently be viewed against the facts that after the Applicant was arrested, interviews took place and pursuant to which the Applicant entered into the Undertaking and in consequence of which he was not sentenced to a gaol term. The Respondent's SoFaC indicates (correctly) that the maximum term of imprisonment, which might otherwise have been imposed, could have been very lengthy indeed.
24. It was put to the Applicant that he had said that he abused Kate sexually on one occasion, whereas the complaint related to a period of three years. The Applicant said that he moved in with Kim in January 2001 and that the period of his stay with her lasted until November 2003. He insisted (and more than once) that the period was two years only. It is clear of course that the period was a little less than three years and the Applicant’s stubborn insistence that the period involved was two years only cannot possibly be correct.
25. The Applicant was referred to the first police interview with Kate and said that he agreed with the description she gave of the offences in question. He insisted though that this conduct occurred once only and on 25 November 2003 and despite the fact that the complaint by Kate occurred in point of time prior to 25 November 2003.
26. The cross-examination which followed involved confusing, and for the most part, untruthful evidence by the Applicant as to what he said during the Program. He said that he told the Program officials that the offences occurred for a period of one month because the officials in respect of the Program would not have believed his assertion as to their occurrence on one occasion only. He said that he was lying to the Program officials when he told them that the offences occurred for one month only and moreover, that he was also lying to them when he told them also that the offences occurred throughout the period of nearly three years during which he lived with Kim.
27. The Applicant said that he lied to the Program officials not only because participation in the Program had the effect that it kept him out of gaol, but also because it helped him with his other problems and including in respect of alcohol, gambling and pornography.
28. As set out previously, the Applicant had told the Program officials that the conduct in question occurred during the whole period of nearly three years; the Tribunal considers that this is almost certainly what in fact occurred and the Applicant's contentions and evidence that the conduct in question occurred either once only or during one month only cannot be truthful or accepted.
29. Equally, the Applicant’s contention that his threat to hurt (not kill) Kate and her mother if anything was said of his offences, was in reality a threat that he would withhold financial support, was equally untruthful and cannot be accepted.
30. The Applicant nevertheless repeatedly insisted that when he told the Program officials that his misconduct occurred throughout the period of nearly three years previously referred to, he was not being truthful.
31. The Applicant’s evidence as to when his romantic attachment to Kim began, and how it began was also confused and probably untruthful, but it is not necessary to deal with it in detail. Assuming that his first liaison with Ms L Rosales lasted from 1985 until 2001, his liaison with Kim appears to have commenced in 2001, and so that his reference to a period of 14 years in respect of Ms L Rosales cannot be correct.
32. It was put to the Applicant that page 102 of Exhibit R1 (as just one example) reveals that his progress in the Program was unsatisfactory. He said that this was because the Program would not believe him as to his sexual misconduct.
33. The Applicant’s application for citizenship was put to him in the context of question 46, which asks categorically and inter alia, whether the Applicant had any criminal convictions and to which he answered in the negative. The same answer was given in respect of other and similar questions. The Applicant said that he read the question as asking him whether he had ever been sent to gaol. It must be noted that the questions are clear and unambiguous and not on any basis capable of being misunderstood on the basis for which the Applicant contended.
34. The Applicant’s completion of his citizenship application was in this important respect untruthful and so for that matter was much of his evidence before the Tribunal.
PART D - the law
35. Chapter 10 of the Australian Citizenship Instructions (“the ACI”) provides guidance to decision-makers in respect of their assessment of an Applicant’s character for the purposes of s 21(2)(h) of the Act. Chapter 10 of the ACI relevantly states that:
… sexual abuse … [and] crimes against children … are ordinarily considered to be serious, and should be given due weight in an assessment …
36. Chapter 10 states also that in order to justify a conclusion that a person is of good character, a reasonable period of time during which the Applicant has been free of obligations to the Court must be established.
37. As appears from the criminal history set out previously in these reasons, the Applicant’s conduct towards Kate Smith was reprehensible in the extreme. On 20 January 2005 the Applicant pleaded guilty to the offences in question and was permitted to enter into the Undertaking. It must not be forgotten that the Applicant occupied a position of trust and care in relation to Kate and was in relation to Kate in fact in loco parentis. On the basis that Kate was 10 years of age in 2003, she would have been about seven or eight in 2001.
38. The Applicant twice breached the Undertaking and in consequence of which the period in respect of his undertaking was extended.
39. Although the Tribunal has not received any sentencing remarks in respect of the conviction, it is abundantly clear that the offences were serious in the extreme and the fact that the Applicant was not sentenced to a term of imprisonment is something for which he should consider himself extremely fortunate.
40. In his application for citizenship and as set out previously, the Applicant made a false declaration as regards his criminal history (see T p47). That false declaration constituted an offence under s 50 of the Act. His application for citizenship was made, it must be remembered, in March 2007 and (again as set out previously) prior to expiry of his obligations pursuant to the Undertaking.
41. In addition, the Applicant’s participation in the Program was not satisfactory and in consequence of which there were two extensions to the period of the Undertaking and so that it was extended in all for 10 months above and beyond the original period of two years.
42. The Tribunal notes (with some concern) that Dr Ali Sahebi made no mention in his reference (Exhibit A1) of the fact that the Applicant breached the Undertaking. Exhibit A1 reads as follows:
To: Whom It May Concern
[…]
Mr Arman Rosales was a participant in the NSW Pre-Trial Diversion of Offenders Program (Child Sexual Assault). This program is also known as Cedar Cottage. Mr Rosales’s participation in the Program was court-supervised for 34 months.
During his participation in our Program, Mr Rosales was bound by a number of conditions, which were part of his Undertaking to the District Court. He complied with treatment conditions and attended scheduled appointments at Cedar Cottage.
Mr Rosales satisfactorily completed the requirements of the Pre-Trial Diversion Program on 14/05/07 and since then he has been attending voluntary maintenance therapy, both individual and group. He has been assessed as a “low risk” of re-offending.
If you have any enquiries …
43. In the same context the Tribunal notes that Rev Fr Barry Brundell said in Exhibit A3 that the Applicant had “fully co-operated”; he did not explain what exactly he meant by this statement. If he intended to suggest that the Applicant complied properly with his obligations in the Program that suggestion was not correct. That Exhibit A3 makes no mention of the abhorrent nature of the relevant offences is surprising. Exhibit A3 reads as follows:
Dear Sir/Madam
Re: Mr Arman Rosales
Arman Rosales has attended our church over a period of approximately two years. Approximately eighteen months ago he asked me to be a MASS (Maintenance and Support System) member. Hence I am fully apprised of his situation.
In all this time Arman has fully co-operated and I have not observed any untoward behaviour. I have confidence that he is now very unlikely to re-offend, and he certainly poses little risk to other members of our parish community.
Yours sincerely …
44. Exhibits A2 and A4 are of little or no assistance in relation to this application.
45. The Tribunal was referred to Re Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 in which the Tribunal held that rehabilitation notwithstanding, a sufficient period of time must have passed before a person can be found to be of good character for the purposes of citizenship. In that case and in coming to the conclusion that the Applicant, Mr Fenn, was not a person of good character within the meaning of the Old Act, the Tribunal stated (at clause 8):
The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home. While Mr Fenn may have made a contribution to the community before these offences and since 1995, he significantly detracted from the community for over 4 years and deprived a number of Australians of their savings and other monies rightfully theirs. That Mr Fenn is making a concerted effort to turn his life around, is a positive step; however, it will take longer than 5 years for there to be sufficient evidence that his character has been restored to the level required for a grant of citizenship. The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years' time when he can demonstrate a longer period of positive contribution to the Australian community.
46. The facts in this case are reminiscent to some considerable extent of the facts in Re Osorio and Minister for Immigration and Citizenship [2007] AATA 59, a decision of Deputy President SD Hotop; clauses 36 to 39 of that decision read as follows:
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.
47. The Tribunal was referred also to Re Chen v Minister for Immigration and Citizenship [2007] AATA 1815, where Senior Member McCabe noted (at clause 18):
The wording of the test is important. It does not require that the Minister form an adverse view of the applicant’s character. The Minister must be positively persuaded that the applicant is of good character. Ms Linacre, for the respondent, said the Minister cannot be satisfied about the applicant’s character if there is evidence which calls that character into question.
48. The Tribunal was also referred to the decision of Milnar v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771 in which it was said (at 17) that:
The standard of good character should be even higher for citizenship cases than s 501 matters because of the importance of citizenship and the greater responsibilities and privileges attached to it.
49. The Respondent contends that the Tribunal cannot be positively persuaded that the Applicant is of good character for the reasons set out in clause 23 of his SoFaC reading as follows:
(a)the utterly repugnant and extremely serious nature of the Offences against a child in his care;
(b)the substantial period over which the sexual abuse occurred;
(c)the modest amount of time that has passed since the applicant has been free of an obligation to the Court;
(d)his concealment of the Offences from the Department at the time of application; and
(e)the applicant's unsatisfactory participation in the Program.
PART E - findings
50. The Tribunal agrees with the contentions of the Respondent as set out in particular in clause 23 of his SoFaC (referred to at paragraph 48 above) and in other words agrees that the Applicant has not demonstrated that he is of good character. Indeed it cannot be said that he has made any real attempt to do so.
51. It is clear that the Applicant’s behaviour towards Kate was reprehensible in the extreme and in particular, when one considers that he regarded her as his step-daughter and to whom he clearly owed a duty of care.
52. The manner in which the Applicant completed his application for citizenship (and before the period of the Undertaking had expired) was also reprehensible; so too was the untruthful nature of his evidence before the Tribunal.
53. At the end of the hearing the Tribunal indicated to the Applicant that a finding in his favour would not be possible. It indicated also that he could apply again in the future but only after the lapse of a period of some years and during which time he would be able to demonstrate altogether unexceptionable behaviour.
54. In all the circumstances, the decision under review must be affirmed.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Julian Block, Deputy President
Signed: [sgd]..............................................................................
Tal Aviram, Associate
Date/s of Hearing: 11 June 2008
Date of Decision: 20 June 2008
Solicitor for the Applicant: Self-represented
Solicitor for the Respondent: Mr T Eteuati, Clayton UtzAttachments removed
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