Spall and Minister for Home Affairs (Citizenship) - [2021] AATA 4290

Spall and Minister for Home Affairs (Citizenship) [2021] AATA 4290 (18 November 2021)
Division:GENERAL DIVISION
File Number: 2020/3258
Re:Stephen Spall
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Dr Damien Cremean, Senior Member
Date:18 November 2021
Place:Melbourne

The Tribunal affirms the decision under review.
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Dr Damien Cremean, Senior Member
CATCHWORDS
CITIZENSHIP – Australian citizenship revoked – criminal offences of indecent assault on minors – pleas of guilty – sentence of imprisonment cumulatively of 12 months – whether contrary to public interest for Applicant to remain an Australian citizen – decision under review affirmed.
LEGISLATION
Australian Citizenship Act 2007 (Cth)
CASES
Da Costa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1045
DPP v Smith [1991] 1 VR 63
McKinnon v Secretary ,Department of Treasury [2005] FCAFC 142
Minister for Home Affairs v Waraich [2020] FCA 1513
NPRT and Minister for Home Affairs (Citizenship) [2020] AATA 3641
TRHL v Minister for Immigration and Border Protection [2016] FCA 376
REASONS FOR DECISION
Dr Damien Cremean, Senior Member
18 November 2021
BACKGROUND

A decision made by the Respondent, dated 7 May 2020, revoked the Australian citizenship of Mr Stephen Spall (“Applicant”). The revocation was made under s 34(2) of the Australian Citizenship Act 2007 (Cth) (“Act”) in that under that provision the Respondent was entitled to exercise a discretion to do so inter alia considering that the Applicant had been convicted of a serious offence and that it would be contrary to the public interest for him to remain an Australian citizen.
The Applicant on 26 May 2020 applied to the Tribunal to have such decision set aside.
LEGISLATION
Section 34(2) of the Act specifies that the Minister may revoke a person’s Australian citizenship and provides:
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.
Then by s 34(3) of the Act it is specified that the Minister must not revoke a person’s Australian citizenship if this would result in the person becoming one who is not a national or citizen of any country.
The definition of a “serious offence” in s 34(2)(b)(ii) of the Act is in s 34(5) which in effect provides that a person is convicted of a serious offence if sentenced to a serious prison sentence, which by s 3 of the Act means a term of imprisonment of at least 12 months, and that person committed the offence at any time before the person became an Australian citizen.
ISSUES
The central issue in the application, which involves a number of sub-issues, is whether the Respondent’s decision to revoke the Applicant’s Australian citizenship under the Act is the correct or preferable decision in light of all the evidence presented to the Tribunal at the hearing.
HEARING
The hearing took place on 6 and 7 July 2021.
The Applicant was represented by Ms Tanya Skvortsova of Counsel instructed by Carina Ford Immigration Lawyers and the Respondent by Mr Vince Murano of Counsel instructed by Minter Ellison.
At the hearing in person, affirmed evidence was given by the Applicant; Ms Valerie Spall, the Applicant’s mother; Mr Barry Spall, the Applicant’s son; Dr Emily Kwok, counselling and forensic psychologist; and Ms Kerrena Spall, the Applicant’s wife (from his second marriage). Each was cross-examined.
No witnesses were called by the Respondent.
T Documents including numerous personal references and other documents were received into evidence.
After the conclusion of the hearing, Closing Submissions were lodged by both parties together with a number of authorities.
The parties were informed that the Tribunal would consider submissions and reach a decision in due course.
For the reasons below, the Tribunal has decided to affirm the decision under review.
EVIDENCE
In what follows I summarise the main points in the evidence given by each of the witnesses.
Applicant
The Applicant gave detailed affirmed evidence and confirmed the contents of a witness statement dated 4 February 2021.
He identified and made only one change to the statement-relating to his age when he married his first wife.
I have read and considered the contents of that statement which is itself somewhat lengthy and detailed.
Key points arising from the statement I consider include the Applicant stating:
(a)The ashes of his brother Michael, are located at the Springvale Cemetery in suburban Melbourne, Victoria and his father who died in 2010 is buried in that State;
(b)He is married to Kerrena (his second wife) and has been since 1993 and is step-father to her two sons one of whom—Barry—he adopted in 2020 as an adult adoption at Barry’s request;
(c)He is no longer able to work (suffering from conditions including “Fibromyalgia, Ulna nerve compression in both elbows, Lateral Epicondylitis, widespread Tendinitis. Trochanteric bursitis. Wide spread arthritis”) and is incapacitated and on a Disability Support Pension;
(d)His mother (Valerie) is aged 75 and is unwell and she and his only remaining brother (her other son) live in Australia;
(e)He has spent more than three quarters of his life in Australia having come here from the UK as a young eight year old.
(f)He has no ties to the UK but has “very limited distant family [still] in the UK”;
(g)He is remorseful for his actions which occurred some 26 years ago “hence why I pled[sic] guilty for my wrongful actions and served my time for them in prison”;
(h)He has been sober since 2010—“the offending occurred during a period of extreme intoxication”;
(i)He is aged 55 years and if “I was forced to return to the UK my life would be over”;
(j)Since the time of offending he has “led a clean honest life” during which he has made a point of “help[ing] those in need around me”.
The Applicant explained that he was aged 20 when his brother Michael died.
He met his first wife Sandra in the UK when he returned to England after having come to Australia.
He has three children with Sandra from whom he is divorced but he does not have contact with those children who are now adults. Later he married Kerenna.
He became a heavy drinker as his father had been before him and this had “a very negative impact on the marriage”. Kerenna left him in 1996—she “packed up the two boys…and her belongings and moved from Wodonga [in Victoria where he had been working] back to Melbourne”.
They resumed living together later and Kerenna still works but he stopped work in 2010. His medical issues make “[e]very day … a struggle” including because he is on painkillers and is reliant on others around him to “do various things that you can’t do yourself”.
The criminal charges he pleaded guilty to followed police interview in 2014 and the period after that was a very stressful one.
He accepted that the prosecution summary dated 31 January 2018 correctly states what took place years earlier in relation to his offending
He spent his term of imprisonment at Langi Kal Kal Prison in country Victoria
He said reading the victim impact statements again made him feel “totally ashamed and disgusted of [sic] the events that took place and what I did to those poor girls”. He referred to his “silly, stupid” actions.
He said that if his citizenship was cancelled and his ex-citizen’s visa was cancelled also life for him in the UK would be “a huge stress”.
Points elicited in cross-examination include:
(a)The Applicant agreed he had pleaded guilty to two counts of committing an indecent act with a child under 16 years;
(b)The Applicant indicated he cannot actually remember the incidents much or at all—“I have no inkling what the prompt …was” he said in answer to the question “Do you know what prompted you?”;
(c)The Applicant had been drinking on the occasion of one of the offences in relation to the victim concerned who was staying the night sleeping-over on the couch at his premises —“I, you know, had too much to drink, I just—I can’t remember”;
(d)The Applicant had not been drinking on the occasion of the other offence involving a different victim which apparently took place under a car;
(e)The Applicant agreed he was aged 28 years at the time and that he had touched both victims (one of whom was aged 13) for a short time on the vagina under their clothing;
(f)In having pleaded guilty despite his lack of clear recollection of events he said he had had time to reflect on the evidence and “I felt responsible” because by his behaviour he had had “a big impact” on the victims’ lives;
(g)The Applicant said that one of the victims “wanted me for herself and …was trying to split [the Applicant and his wife] apart” which was the excuse she gave to his wife; this victim he agreed in answer to a question from me was “seriously infatuated” with him.
In re-examination, the Applicant agreed he does “have some memory of at least some aspects of [his] offending” and denied he is “sexually attracted to pubescent girls”.
Applicant’s mother
Ms Valerie Spall gave affirmed evidence she is a 75-year-old pensioner living in country Victoria and is the mother of the Applicant.
She agreed she had made a Witness Statement dated 5 February 2021 and that its contents are true and correct.
In that Statement Ms Spall says she does “sincerely believe Stephen is remorseful for his actions and deeply regrets that the incidents happened”.
She says also that she “would put the chances of Stephen reoffending at 0%”.
She says “I cannot imagine my life without Stephen and the thought of losing another child”.
Both in her Statement and in her evidence the witness indicated that the Applicant provides her with considerable help around the house.
Applicant’s son
Barry Spall gave affirmed evidence that he is 33 years old and works with the National Australia Bank in unsecured lending (which includes personal loans, credit cards and so on) and that he is the Applicant’s adopted son. He said he has known the Applicant since he was two years old and has called him “Dad” all his life. He said he tries to see him “every day”. He said he is engaged to be married.
He agreed he had made a Witness Statement in this matter dated 1 January (corrected to February) 2021 and that it is true and correct
In that Statement Mr Spall said he is “extremely close to my father” and “can attest to my father’s remorse in this matter”.
Mr Spall says in the Statement “I don’t believe Stephen [his father] will ever reoffend for the remainder of his life”.
Also in the Statement, Mr Spall says that if his father was returned to the UK “it would be absolutely disastrous for him and all his loved ones he would be forced to leave behind”.
In oral evidence he said the Applicant “doesn’t leave the house very often” and is “not very social”. But he does help around the house a lot because his wife (Mr Spall’s mother) has collapsed disks at L4 and L5 in her back
As regards the local community Mr Spall said the Applicant “is involved with our neighbours and friends, he will help them, much to my dismay where he will do things for them like spend days and days trying to do what he can to help them without expending money or [getting] any material rewards”. He said his father is “very well respected” within his family and amongst friends
If the Applicant was returned to the UK Mr Spall said in reference to the Applicant “[i]t would be as if he died”. If, however, the Applicant’s citizenship remained cancelled and he obtained an ex-citizen visa the effect on his father would be— “Immense”. He said it would be “much like having a terminal illness “— “You don’t know when it will come for you”.
Cross examination was brief and there was no re-examination.
However in answer to a question by me Mr Spall said of his father—” The person he was 25 years ago is not the person he is now”.
Applicant’s wife
The Applicant’s wife Ms Kerenna Spall gave affirmed evidence by telephone that she and her husband, the Applicant, have been together for 30 years and that she works as a security guard
She said she knew of the incidents in 1994 or 1995 and that at that time he was drinking heavily—” God, he drank just about every day. He’d come home pissed every day”.
Ms Spall said she was friendly with the mothers of the two victims out of her children being at the same school.
Since this time she said her husband “has stayed away from young girls “and since he has come out of jail “I can’t fault his conduct”.
She said that her husband “when he drank was an entirely different person”. But she said when asked by me that “[a]s of right now I think [he] is of good character”.
There was a short cross examination and no re-examination.
Dr Emily Kwok
Dr Emily Kwok, forensic psychologist since about 2009, gave affirmed evidence from NSW in which she confirmed the contents of her reports—the first dated 14 December 2020 and the second (supplementary) dated 9 February 2021. She indicated she was inclined to put emphasis on her second report.
I have read both such documents and considered the details in each to my satisfaction.
In oral evidence Dr Kwok said she had experience in conducting risk assessments in relation to sexual offending and specifically had done so in relation to the Applicant,

Mr Stephen Spall.
In his case Dr Kwok said that Mr Spall “was at a low risk of reoffending”.
Dr Kwok agreed that this meant that “his risk [of reoffending] is no higher than [that of] a person without the same convictions as him”.
She also agreed that an offender could find it difficult to recount the facts of the offending—“The subject itself is confronting and rather sensitive. There are also elements of shame, of embarrassment and even of how they may be perceived by the community around them which would motivate a person to not wish to speak about these things”
In cross examination Dr Kwok agreed she had interviewed the Applicant for approximately 1.15 hours on 5 December 2020.
Dr Kwok said that she had based her views of the Applicant on court documents in light of him saying he could not recall what had happened in regards to the offending.
Nothing of substance emerged in re-examination.
CONTENTIONS
I have had due regard to the Submissions and Statements of Issues Facts and Contentions of both parties together with their Submissions in response to my request concerning the decision in Da Costa v Minister for Immigration, Citizenship, Migrant Services andMulticultural Affairs [2021] FCA 1045.
The Applicant (who apparently is also a UK citizen) contends in summary that the decision under review should be set aside.
Reliance is placed on the evidence at the hearing together with Witness Statements from persons who were not called to give evidence as well as numerous written character references.
It is submitted that revocation of citizenship under s 34(2) is not mandatory.
Attention is drawn to the circumstance that the Applicant’s admitted offending occurred before his application for citizenship was made and it is conceded that continuation of the citizenship cancellation would not render the Applicant stateless.
Further it is conceded –as it must be –that the Applicant meets the threshold requirement of 12 months imprisonment.
Correctly it is pointed out that the serious issue is whether under s 34(2)(c) it would be “contrary to the public interest” for the Applicant to be or remain an Australian citizen.
In that regard I am referred to authorities including NPRT and Minister for Home Affairs (Citizenship) [2020] AATA 3641 (“NPRT”) –a decision of Sosso DP who at [72] sets out factors to be considered in determining the question whether it is contrary to the public interest for a person to be or remain an Australian citizen.
I should indicate I agree generally that the factors set out are the factors by which to be guided on this question.
Relying on those factors the Applicant submits that the grounds exist for me to be unable to be satisfied that it is “in the public interest to revoke the Applicant’s citizenship”.
The Respondent however contends in summary that the decision under review should be affirmed.
Reliance also is placed on the evidence and the facts of the convictions and the prison sentence of 12 months.
Reference is made to authorities (including DPP v Smith [1991] 1 VR 63 and McKinnon vSecretary, Department of Treasury [2005] FCAFC 142) and to the learned judge’s sentencing remarks as well as to the victim impact statements.
It is submitted there are no factors which should cause me to exercise a discretion not to revoke (or continue the revocation of) the Applicant’s citizenship.
Both parties made further submissions and I shall consider those below
CONSIDERATION
My concern in this matter is to decide whether the Applicant falls within s 34(2)(c) of the Act—that is, whether it is “contrary to the public interest” for the Applicant to continue as an Australian citizen.
I would think that this is, in terms, a quite different enquiry to one whether it is “in the public interest” for the Applicant to continue as an Australian citizen. To my mind this is not merely a linguistic distinction of no practical significance or importance. Something, plainly, may not be in the public interest but it may not be, at the same time, contrary to it.
Nevertheless the decision of Anastassiou J in Minister for Home Affairs v Waraich [2020] FCA 1513 at [43] precludes taking this view as does the decision of the late Gilmour J (referred to and applied by Anastassiou J ) in TRHL v Minister forImmigration and Border Protection [2016] FCA 376 at [41] who indicated his view that if it is not in the public interest for someone to continue as an Australian citizen then it is contrary to the public interest for the person to continue as an Australian citizen. I would think this with respect dilutes the notion of something being “contrary to” the public interest but his Honour said clearly enough that the two are “synonymous”.
I am bound therefore to say that in considering s 34(2)(c) in relation to the Applicant it is a question of whether it is not in the public interest that he should continue as an Australian citizen. It is not distinctly a question whether it is contrary to the public interest for him to continue as an Australian citizen. Both questions are to be considered synonymous.
In my view there are solid grounds for saying, if the Applicant is not to continue as an Australian citizen, that he should not be deported. Among such grounds I include are his age and poor health due to medical conditions; his having served his jail sentence following pleas of guilty; his remorse; his low risk of offending—clearly supported in the evidence of Dr Kwok; lack of other offending; his abstention (partial or complete) from alcohol; his stable family environment (from what I can tell) including an adopted son; his helpfulness to and support of others; and the regard he is held in by others. These are all factors which clearly point away from deportation if that was to be considered should his citizenship continue cancelled.

Indeed, I would characterise many or most of the submissions of the Applicant as directed to that very question—whether he should be deported or not.
That, however, is not a relevant factor for me to take into account in my consideration. Whether the Applicant’s citizenship is to continue or not is a separate question—and an anterior one—to the one whether he should be deported or not (on the assumption that his citizenship is not continued.).The reasons why a person should not be deported may not be the same as those why the person should not retain Australian citizenship.
In that regard I must indicate my view is that the Applicant’s cancellation of citizenship should stand. I consider it is out of keeping for someone who has been conferred with the privilege of Australian citizenship to remain an Australian citizen with a history of sexual assault of minors aged about 12 or 13 years I say that even though the Applicant has paid the price for his conduct by serving time in jail and even though also he pleaded guilty and the offences took place a long time ago and police action was slow.
The offences were of a serious nature committed on two very young victims. I have regard to the judge’s sentencing remarks —as I should—who described the Applicant’s offending as “vile” and as constituting a serious breach of trust.
It is true that the Applicant pleaded guilty in the County Court but I do not regard his plea as one entered at the earliest opportunity. Here, as I have indicated, I differ somewhat from the sentencing judge in his remarks.
The Applicant offers no excuse for his conduct on the occasions in question when each victim was likely or possibly did view him as a trusted parent of children of their own or a similar age.
There is mention of alcohol at the time –at least of the offences relating to one victim. At one point or another the Applicant would become heavily intoxicated. But to his credit perhaps (although a little vague on the point) the Applicant does not offer that as an excuse for his conduct. Nor, I should add, would it or could it ever be an excuse for his wrongdoing especially given the age of the victims.
Indeed, the Applicant indicated he has difficulty recalling in detail what happened on that or the other occasion. This could be for the reasons stated by Dr Kwok—including “shame of embarrassment”. But I regret to say that this left me in some doubt about how truly insightful the Applicant is into his own conduct. I accept his remorse is real, but I consider that the events involving the two victims are simply too hard for him to face and confront in all their detail. I do not consider that I should regard as a factor of high value the breakdown of his marriage at the time of the offences. I should think also that an element in his remorse is regret or sorrow at the situation he has faced and faces
There was a suggestion that one of the victims “wanted [him] for herself” but I regard this as absurd. That victim had barely entered teenage years and he was an adult male at the time not far off 30 years of age. To entertain the suggestion is in my view to engage in victim blaming. Under no circumstances in my view can he blame the victims for his misdeeds. I also think it is fantasy and I was surprised to hear him mention it.
Exactly how it is that the Applicant’s offences surfaced only years after they were committed (in about 1995-1996) is a common factor in many historical rape and sexual abuse allegations. I go no further than to note that there is an unexplained delay in the offences being reported and also in the offences being brought before the court following police interview in 2014. I do not know and cannot speculate about why either such delay occurred.
I would regard the Applicant as barely satisfying any of the criteria in the NPRT decision. The offences in question here are indeed very serious involving as they do minors; the Applicant I suggest would never have been conferred with citizenship if the offences were known at the time. The Applicant’s pleas of guilty as I have said were not at the earliest opportunity—and I regret that in this respect I differ from the learned sentencing judge in his remarks; and I doubt that it can be said that the Applicant has truly faced up to what occurred.
As I have indicated the Applicant has tendered various character references in support and I heard strong evidence from his mother, his son Barry and Dr Kwok about the Applicant’s risk of re-offending. Further, the Applicant has committed no other offences and has lived In Australia nearly all his life.
But that is all I can say. I am troubled particularly by the Applicant’s failure to face up to the full account of his offending and by his concoction of infatuation on the part of one of the victims. And of course it goes without saying that I am very troubled by the serious nature of the offending.
In these circumstances I consider the public interest is such as to demand that someone with the Applicant’s history of sexual misconduct with minors—despite it being now a long time ago—should not be given the privilege, as I say, of Australian citizenship.
I regard it as being contrary to the public interest therefore under s 34(2)(c) of the Act for the Applicant to remain an Australian citizen and therefore I do not agree that the cancellation of the Applicant’s citizenship should be set aside. I do not regard any hardship involved in this as taking the Applicant’s case out of the reach of that provision. It cannot be a concern of mine that this may cause the Applicant anxiety and distress. Any anxiety and distress he suffers are due solely to his own conduct all those years ago.
DECISION
The decision under review is affirmed.

I certify that the preceding 98 (ninety-eight) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean, Senior Member

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Associate
Dated: 18 November 2021

Date(s) of hearing: 6 and 7 July 2021

Date final submissions received: 8 September 2021

Counsel for the Applicant: T. Skvortsova

Solicitors for the Applicant: Carina Ford Immigration Lawyers

Counsel for the Respondent: V. Murano

Solicitors for the Respondent: Minter Ellison

Date(s) of hearing:	6 and 7 July 2021
Date final submissions received:	8 September 2021
Counsel for the Applicant:	T. Skvortsova
Solicitors for the Applicant:	Carina Ford Immigration Lawyers
Counsel for the Respondent:	V. Murano
Solicitors for the Respondent:	Minter Ellison