Taylor and Minister for Immigration and Citizenship
[2012] AATA 55
•2 February 2012
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2012] AATA 55
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/5406
GENERAL ADMINISTRATIVE DIVISION ) Re Graham Taylor Applicant
And
Minister for Immigration and Citizenship
Respondent
DECISION
Tribunal Mr R P Handley, Deputy President Date2 February 2012
PlaceSydney
Decision The Tribunal sets aside the decision under review and remits Mr Taylor’s application for citizenship to the Minister for reconsideration with a direction that Mr Taylor should now be considered as of good character. .........................[sgd].....................
Mr R P Handley
Deputy President
CATCHWORDS
CITIZENSHIP – citizenship by conferral – good character requirement – enduring moral qualities – serious criminal history – no recurrence of offending behaviour – reformed character
LEGISLATION
Australian Citizenship Act 2007 – ss 21(1), 21(2), 24(1)
CASE LAW
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Zheng and Minister for Immigration and Citizenship (2011) 121 ALD 372; [2011] AATA 304
Long and Minister for Immigration and Citizenship (2010) 116 ALD 328; [2010] AATA 464
OTHER INSTRUMENTS
Australian Citizenship Instructions
REASONS FOR DECISION
2 February 2012 Mr R P Handley, Deputy President 1. Mr Graham Taylor has applied for a review of a decision of a delegate of the Minister for Immigration and Citizenship (the Minister) to refuse his application for Australian citizenship by conferral on the ground that he is not of good character. The issue for the Tribunal is whether this is the correct or preferable decision.
Background
2. Mr Taylor was born in England in September 1959 and is aged 52. He is a British citizen. Mr Taylor first arrived in Australia as a permanent resident with his parents in November 1966 and has not departed since.
3. On 9 June 1995, in Gunnedah Local Court, Mr Taylor was convicted of two offences – possession of an unlicensed firearm and not keeping a firearm safe – for which he received fines. In the District Court of NSW in Tamworth on 7 February 1996, Mr Taylor pleaded guilty to and was convicted of eight sexual offences with a minor (two counts of having sexual intercourse, three counts of assault and an act of indecency, and three counts of an act of indecency), and asked that a further five matters be taken into account. The eight offences took place over a period of 14 years between 1 January 1981 and 31 December 1994 and involved four boys aged between nine and 14. On 8 February 1996, Judge Knight sentenced Mr Taylor to a total of six years’ imprisonment, commencing on 7 February 1996, with a non-parole period of three years and six months. Mr Taylor was eligible for release on parole on 6 August 1999 and his parole period expired on 6 February 2002.
4. In his sentencing remarks on 8 February 1996, Judge Knight referred to the lengthy period over which the offences took place and said that such offences, “involving as they do the exploitation for your own sexual gratification of young persons in our community”, have to be dealt with severely. However, his Honour noted that Mr Taylor had “significant social problems in interaction with other people”, was bereft of friends and led a lonely life, had some health problems, and had “above average prospects of rehabilitation provided that he has lengthy supervision throughout his additional [parole] term”. He said “I consider his needs are of a social nature and that he would benefit greatly from counselling and psychological assistance”.
5. Reports from Kirkconnell Correctional Centre from December 1998 indicate that Mr Taylor was a reliable worker who worked well unsupervised, and his case officer expressed the view that a “re-occurrence of his former problems is highly unlikely”.
6. A Department of Corrective Services Psychological Report, dated 8 April 1999, prepared for the Department of Immigration and Multicultural Affairs at a time when consideration was being given to the cancellation of Mr Taylor’s visa, refers to Mr Taylor describing a history of victimisation from a young age “being ridiculed and taunted by his peers, as well as being sexually abused several times by older children and an adult female”. The Report notes that “Since early adulthood Mr Taylor has sought out children for companionship and sexual release. He finds it difficult to form close relationships with his peers.” The Report states that Mr Taylor completed the Sexual Offenders’ Redirection Training program at Junee Correctional Centre and was, at that time, undertaking the Sex Offender Psychosexual Education program at Kirkconnell Correctional Centre. However, he would “need to engage in a longer, more intensive program before it can be said he has reduced his risk of re-offending”. To reduce this risk, he would need to avoid unsupervised contact with children.
7. On 4 September 1999, a delegate of the Minister decided to cancel Mr Taylor’s visa. This decision was set aside following litigation in the High Court which, according to the Respondent, ultimately ordered that Mr Taylor’s visa be reinstated.
8. On 23 May 2007, Mr Taylor applied for Australian citizenship by conferral. It appears that, at the time, consideration was again being given to the cancellation of his visa because, on 8 March 2008, a delegate of the Minister decided not to cancel Mr Taylor’s visa but instead to issue him with a formal warning about his conduct.
9. By letter dated 4 August 2010, the Department wrote to Mr Taylor providing copies of various documents indicating that he might not be of good character, and inviting him to respond and provide additional information. Among these documents was ‘Protected Information’, namely a ‘Person of Interest Assessment’ dated 24 October 2005 by the Australian Federal Police (AFP) which referred to information received by the AFP suggesting that Mr Taylor was a person who might have browsed and/or purchased membership to websites containing child pornography.
10. By letter dated 25 November 2010, a delegate of the Minister notified Mr Taylor that his application had been refused on the ground that he was not of good character. On 14 December 2010, Mr Taylor applied to the Tribunal for a review of this decision.
The Relevant Law and Policy
11. Section 21(1) of the Australian Citizenship Act 2007 (the Act) provides that a person may make an application to the Minister to become an Australian citizen. Section 24(1) states that if a person makes such an application, “the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen”. Section 21(2) states the general eligibility requirements:
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a)is aged 18 or over at the time the person made the application; and
(b)is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister's decision on the application; and
(c)satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or has completed relevant defence service (see section 23), at the time the person made the application; and
(d)understands the nature of an application under subsection (1); and
(e)possesses a basic knowledge of the English language; and
(f)has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g)is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h)is of good character at the time of the Minister's decision on the application.
12. Thus, s 21(2)(h) requires the Minister to be satisfied that the person is of good character. The term ‘good character’ is not defined in the Act and the Tribunal, standing in the shoes of the decision-maker, must therefore be guided by the ordinary meaning of the words as interpreted by the courts.
14. In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 (Irving) the Full Federal Court considered the meaning of the expression "good character" for the purposes of the migration legislation. Davies J (with whose reasons R D Nicholson J agreed) said (at p 425):
... the term ‘good character’ is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. In another sense, it refers to the individual’s reputation or repute: see The Oxford English Dictionary, meanings 11, 12 and 13; The Macquarie Dictionary meanings 1, 2, 3, 4 and 5. Necessarily, when decisions are made in Australia under the Act in relation to persons who are overseas, greater attention tends to be given to objective facts and to reputation or repute rather than to a detailed analysis of the person’s inherent qualities. I do not suggest that, in the context, ‘good character’ refers to reputation and repute as such. It does not. But criminal convictions or the absence of them and character references are likely to be an important source of primary information. If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant. If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.
15. In the same decision, Lee J said (at pp 431-432):
Unless the terms of the Act and Regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review [of] subjective public opinion ... A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character. ... Conversely, a person of good repute may be shown by objective assessment to be a person of bad character. (citations of authorities omitted).
16. The Government has developed policy in the form of the Australian Citizenship Instructions (the Instructions) to provide guidance to decision-makers. The introduction to the Instructions states that their role is:
... to support the Australian Citizenship Act 2007. The instructions provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations. Decision makers should be mindful that policy must not be applied inflexibly. Policy cannot constrain the exercise of delegated powers under the Act.
17. Decision-makers should generally apply policy such as the Instructions unless the policy is unlawful or its application produces an unjust result in the circumstances of a particular case: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Drake).
18. The Instructions specify criteria for determining citizenship applications. Chapter 10 of the Instructions state relevantly:
It is the responsibility of the applicant to show that they are of good character. If a decision maker is not satisfied that an applicant is of good character at the time the application is to be decided, the application must be refused. There is no legislative provision to defer an application made under the Act.
…
An applicant may be presumed to be of good character unless there is evidence to the contrary. In most cases, such evidence would be in the form of a serious criminal record. However, general conduct and associations may also be relevant. If there is evidence to suggest that an applicant may not be of good character, the applicant should be given the opportunity to respond to this evidence. An applicant’s behaviour does not have to be faultless, but the aggregate of their qualities must be weighed against ordinary community standards of behaviour.
19. As Deputy President Forgie has noted recently in Re Zheng and Minister for Immigration and Citizenship (2011) 121 ALD 372 (Zheng), the Instructions are incorrect in so far as they state that there is an onus on the applicant to establish good character. As the Deputy President stated, at p 394, “At most, it will be in an applicant’s own interests to produce all relevant materials to demonstrate good character but, contrary to what the ACIs suggest, there is no onus to do so.”
20. A list of factors to which consideration should be given in assessing good character is provided in Attachment A to Chapter 10 of the Instructions – ‘Character Summary’. They include the seriousness of any offences of which the applicant has been convicted, the length of any prison sentence, any repeat behaviour, the length of time between the last offence and the application for citizenship, any extenuating circumstances relating to the offence committed, and the applicant’s reputation in the community. As Deputy President Forgie said in Zheng, at p 395, while evidence of reputation may be relevant evidence in assessing character, the focus must be an objective assessment of a person’s enduring moral qualities.
Mr Taylor’s Evidence
21. Mr Taylor said that he came to Australia with his family in 1966. They have lived in Gunnedah since 1972 and, since 1989, in the house which his father purchased on his retirement and where he now lives with his mother and younger brother, his father having since died. Mr Taylor said he cares for his mother who is now in her 80s and suffers from glaucoma and very restricted vision. This includes doing her banking and looking after her affairs. Mr Taylor’s only source of income is his disability support pension. He has always lived with his parents.
22. Mr Taylor confirmed that he pleaded guilty to all charges in the District Court. He is aware that he committed criminal acts, that his conduct was very serious and that he deserved his prison sentence. He said he would never do such things again: offences against children are both morally and legally wrong. He said he did not really know why he did such things although he was unemployed and suffering from (undiagnosed) depression at the time. This does not, however, excuse or minimise his conduct.
23. Mr Taylor said he completed two sexual offender programs while in prison. He undertook these voluntarily and it proved difficult to complete them because of his being moved from one prison to another. After he was released from prison, he voluntarily undertook counselling for sex offending and depression: he went to see a psychologist in Tamworth once a week until she moved away and, subsequently, he saw a psychiatrist. Mr Taylor had this counselling over a period of about 18 months between 2001 and 2003. He stopped attending counselling when the psychiatrist no longer provided treatment in Tamworth and it would have been necessary for Mr Taylor to travel to Armidale, which is two and a half hours drive from Gunnedah. (He said “financial constraints don’t allow me to travel that much distance” (transcript 18 August 2011, p 18).) Mr Taylor has been taking anti-depressants since at least 1993 and continues to take these.
24. Mr Taylor said when the Child Protection (Offenders Registration) Act 2000 (NSW) scheme came into effect, he was registered under that scheme, with effect from November 2001. He was told he would be subject to registration requirements for a period of 10 years. That period ended in November 2011. He has been required to keep the Police informed of details such as his address, telephone number, internet address and car registration and, annually, he has been to the Police station to confirm such details or a Police officer has come to his home for this purpose.
25. Mr Taylor said apart from the offences which he committed, he has otherwise been of good character. He is non-drinking, non-smoking and always pays his bills. He was asked about the AFP Person of Interest Assessment dated 24 October 2005. Mr Taylor denied that he accessed the internet sites referred to in the Assessment or having ever accessed pornographic material on the internet of any kind (transcript p 26). He said he never had any interest in doing so although he acknowledged that the photographs he took of children at the time of his offending were for sexual gratification. He sought to distinguish the photographs he took, which he said were not of sexual acts, from child pornography which he considers involves photographs depicting children in acts of sexual intercourse.
26. Mr Taylor said he never used the internet before 2005 and, at that time, he had no security protection on his computer which was using Windows 98. He claimed to have been the victim of identity theft. The credit card detailed in the AFP Assessment was a Coles/Myer MasterCard. One Sunday morning, he received a telephone call from the card company stating that his card had been used in the Netherlands. He told the card company that he had never been to the Netherlands and did not, at the time, even know where the Netherlands was located. He asked the lady from the card company how it could have happened. She said, “Well, apparently they can generate a random number” (transcript p 24). The card company said they would cancel his card. He subsequently received a letter from the company stating that the card number and his details associated with the card had been released accidentally by the card company “into the wild” and his card was being cancelled. He provided a documents relating to this to his then solicitors, but they have now gone out of business.
27. Mr Taylor said it appears there are six to eight names similar to his in Australia and even the Department confused his name with that of another person and merged their respective files with the result that an earlier application by him for Australian citizenship in January 2001 was significantly delayed. Mr Taylor provided a copy of a letter from the Commonwealth Ombudsman dated 23 January 2007 noting that the Department had apologised to him for incorrectly recording his date of birth and providing him with incorrect information about his citizenship status. Mr Taylor was frustrated by his treatment from the Department over the course of many years and complained that he has never even been interviewed by a Departmental officer in relation to his application for citizenship.
Submissions
28. Mr Ash, for Mr Taylor, referred to the Psychological Report dated 8 April 1999 which noted that Mr Taylor had completed one sex offender program and was then undertaking another program (which he subsequently completed). As suggested in the Report, Mr Taylor has, since his release, voluntarily had counselling with a psychologist and, later, a psychiatrist for his sex offending and depression.
29. Mr Ash submitted that no weight should be given to the October 2005 AFP Person of Interest Assessment since no charges were forthcoming and in the light of Mr Taylor’s explanation in relation to the fraudulent use of his credit card details. Mr Ash also noted that it appears there has been no reconsideration given to the cancellation of Mr Taylor’s visa since the formal warning given to him by letter dated 13 March 2008.
30. With regard to Mr Taylor’s character, and noting the distinction between character and reputation, Mr Ash said Mr Taylor has addressed his problems, has not reoffended, continues to take medication for depression and has some standing in the small community where he has lived for decades. The fact that there have been no personal attacks on him suggests that the community accepts his right to live there. Mr Ash submitted that the concept of character permits recognition of change over a period of time and given the passage of time since the last of the offences were committed in December 1994, and the steps taken by Mr Taylor to address his behaviour, he can now be assessed as being of good character.
31. Ms Cumming, for the Minister, submitted that Mr Taylor’s evidence suggests that he does not understand the gravity of his misconduct and does not consider taking photographs of children for sexual gratification amounts to child pornography unless they involve acts of sexual intercourse. She submitted that Mr Taylor’s very serious criminal behaviour, committed over a period of 14 years and involving eight convictions, indicates that he is not of good character, and he has provided no evidence of substance that could justify a finding to the contrary. While noting the AFP Person of Interest Assessment, Ms Cumming said she did not seek to place “too much weight” on this Assessment since it is not clear what this investigation involved and why no charges were laid.
32. With regard to rehabilitation, Ms Cumming said the two references Mr Taylor has supplied are of limited value, one being concerned with the conduct of his Building Society account and the other relating to his business relationship with the local newsagent. Neither reference indicates whether the referee is aware of the extent and gravity of Mr Taylor’s offending conduct, and neither says whether Mr Taylor’s application for citizenship is supported.
33. Ms Cumming said that apart from the sexual offender programs Mr Taylor completed while in prison, the only other evidence of rehabilitation is his evidence of having attended counselling for a period of 18 months between 2001 and 2003. Ms Cumming referred to the decision in Long and Minister for Immigration and Citizenship (2010) 116 ALD 328 (Long) where, at [15], Senior Member McCabe noted that the evidence of the applicant’s past conduct having raised a serious question about his character, the issue was whether the applicant had adduced evidence “that can set my mind at rest so I might conclude he is of good character after all”. Ms Cumming said that in Mr Taylor’s case, the evidence also raises a serious question about his character and she submitted that he has not provided evidence that would allay such concerns.
Discussion
34. Section 21(2)(h) of the Act requires that the Minister, and here the Tribunal standing in the shoes of the Minister, is satisfied that the person seeking to become an Australian citizen is of good character. The comments by the Full Federal Court in Irving, quoted above, make it clear that the ordinary meaning of the term ‘good character’ involves reference to the person’s enduring moral qualities. Being satisfied that a person is of good character requires an objective assessment of these qualities. In the case of serious criminal convictions such as those recorded against Mr Taylor, the decision-maker will obviously wish to be satisfied that the person has been rehabilitated. Clearly, it will be in an applicant’s best interests to present evidence of rehabilitation to the decision-maker so that, for example, a serious question raised as to the character of the person by his or her criminal history can be allayed: Long, at [15].
35. Mr Taylor has convictions for eight very serious offences committed over a period of 14 years between 1981 and 1994. At the time of sentencing, he also asked for five other offences to be taken into account. He was sentenced to a total of six years imprisonment with a non-parole period of three years and six months. He was released on parole on 6 August 1999, his parole expiring on 6 February 2002.
36. During his time in prison, Mr Taylor completed two relevant programs: the Sexual Offenders’ Redirection Training program at Junee Correctional Centre and the Sex Offender Psychosexual Education program. Judge Knight referred to Mr Taylor being likely to benefit from counselling and psychological assistance. Mr Taylor’s evidence is that he had counselling in respect of his sex offending and depression over a period of about 18 months in the period 2001 - 2003, at first from a psychologist and then from a psychiatrist. This counselling ceased when the psychiatrist stopped seeing patients in Tamworth and, for Mr Taylor to have continued with such treatment, would have meant travelling to Armidale, which is about a two and a half hour drive and too far for Mr Taylor.
37. Mr Taylor also told the Tribunal that after the Child Protection (Offenders Registration) Act 2000 (NSW) scheme came into effect (on 15 October 2001), he was registered under that scheme, from November 2001. He was told he would be subject to registration requirements for a period of 10 years, which ended in November 2011. He has been required to keep the Police informed of details such as his address, telephone number, internet address and car registration and, annually, he has been to the Police station to confirm such details or a Police officer has come to his home for this purpose.
38. The only documentary evidence that Mr Taylor has provided to the Tribunal in support of his claim that he is of good character are two references: a reference from his local newsagent dated 6 April 2011 stating that Mr Taylor “has always presented himself respectfully whilst carrying on business in our establishment”, that he is “courteous and friendly” and does not owe the newsagent any money; and a reference from the Branch Manager of a Building Society in Gunnedah dated 4 March 2011 stating that Mr Taylor’s account “have been conducted well at all times”. In my view, these are of limited value: one is concerned with the conduct of his Building Society account and the other relates to his business relationship with the local newsagent. Neither reference indicates whether the referee is aware of the extent and gravity of Mr Taylor’s offending conduct, and neither says whether Mr Taylor’s application for citizenship is supported.
39. With regard to the AFP ‘Person of Interest Assessment’ dated 24 October 2005, Mr Taylor stated in giving reasons for his application to the Tribunal that the 2005 allegation “was internet theft because I had no protection on computer at that time was running Window 98 OS. Never use internet before 2005.” He said that his bank “wrote to me about card fraud and theft loged [sic] with solicitors”. Mr Taylor said no charges were ever laid and the allegation was never proved in court. He denied having accessed the internet sites referred to in the Assessment or that he has ever accessed child pornography on the internet.
40. Given that the person apparently accessing the child pornography websites provided Mr Taylor’s full name, address, telephone number, email address and credit card number, and given the particular circumstances of this case involving Mr Taylor having been convicted of serious sexual offences with a minor, the Assessment does, in my view, at least raise a question about Mr Taylor’s conduct. Whilst the Assessment merely raises an allegation and no charges were ever laid and Mr Taylor denies any involvement, I felt it was appropriate to ask Mr Taylor to investigate the possibility of obtaining further evidence from his credit card company to confirm his account of his having been the victim of credit card fraud. It seemed to me that relevant documentation should be available, Mr Taylor having stated that he gave his former solicitors a letter from the credit card company about this. I therefore adjourned the proceedings to enable Mr Taylor, or Mr Ash on his behalf, to follow this up, and the Tribunal subsequently made directions for the filing of further submissions by the parties in relation to the material filed.
Further Evidence and Submissions
41. Mr Ash provided the Tribunal with a copy of a letter from the AFP to the Department in March 2007 referring to information received from the United States FBI about Australian credit cards being used to access ‘pay for view’ websites containing child pornography between December 2003 and March 2004. Enquiries revealed a credit card account holder, who was a person using Mr Taylor’s full name, address, telephone number, email address and credit card details, had access to a number of websites containing child pornography. The AFP state this information was forwarded to the NSW Police in 2005 to conduct inquiries to obtain and/or confirm information in order to obtain a search warrant. However, on application for a search warrant, the Magistrate declined to issue a warrant and the NSW Police decided to discontinue their investigation.
42. Mr Ash also provided a copy of a letter to Mr Taylor dated 14 April 2004 from a credit card services company noting that he should have received his Coles Myer Source MasterCard and providing him with a new Personal Identification Number (PIN). In addition, Mr Ash provided copies of Mr Taylor’s credit card statements covering the period 7 November 2003 to 6 April 2004. There are no international credit card transactions recorded in this period attributable to websites used to access child pornography.
43. Mr Ash submitted that it is reasonable to draw an inference that if Mr Taylor’s credit card was used to make such a purchase, it was as a result of identity fraud, as Mr Taylor has consistently claimed, and the credit card company being satisfied that Mr Taylor had not made the purchase, did not charge the purchase amount to Mr Taylor’s account but instead cancelled his card and issued him with a replacement.
44. With regard to the information provided by the AFP to the NSW Police, Mr Ash submitted that it is reasonable to draw an inference that the information provided together with whatever further evidence the NSW Police enquiries revealed did not get to the threshold for the issue of a search warrant and, as a result, the Police took the matter no further.
45. Mr Ash submitted (submissions dated 7 November 2011) that the Tribunal should be satisfied that the evidence surrounding the use of Mr Taylor’s credit card is of no relevance and Mr Taylor should not be held to account for something for which he has provided a plausible explanation.
46. Ms Cumming (submissions dated 15 November 2011) acknowledged that the credit card statements produced contain no transactions during the period December 2003 to March 2004 that could be said to relate to the relevant websites and “the Tribunal is not in a position to find that the Applicant actually accessed websites believed to contain child pornography”. However, Ms Cumming noted that Mr Taylor had not been able to produce any records regarding the unauthorised use of his credit card. Mr Ash (submissions dated 16 November 2011) rejected any suggestion that the fact that Mr Taylor cannot provide further corroboration for his own explanation should be held against him.
Is Mr Taylor of good character?
47. As stated above, s 21(2)(h) of the Act requires that Mr Taylor is of good character at the time of the Minister’s decision on the application. The Full Federal Court decision in Irving establishes that in this context the words ‘good character’ refer to the person’s “enduring moral qualities”. In that decision, Lee J stated that a person who has been convicted of a serious crime may, nonetheless, show that he or she has reformed and is of good character. While there is no onus on an applicant to do so, it will nevertheless be in the applicant’s best interests to provide relevant evidence to demonstrate this.
48. Applicants in cases such as Mr Taylor’s, where they have a criminal history, would be well-advised to provide comprehensive evidence in support of their citizenship application. Mr Taylor’s supporting evidence is sparse. I suspect this may in part be because of what he perceives to be a hostile attitude towards him by the Department after some years of dealings, including the Department confusing him with another person. Mr Taylor’s complaint about this to the Commonwealth Ombudsman and the result of the investigating officer’s enquiries are set out in a letter from the Ombudsman dated 14 November 2006. It then took over three and a half years for the Department to determine his current citizenship application.
49. It is now 17 years since the last of the incidents for which Mr Taylor was convicted, which took place between 1 November 1994 and 31 December 1994. Of his six year prison sentence, Mr Taylor subsequently served three and a half years in prison and two and a half years on parole. As stated, he undertook two sex offender programs in prison and had a further 18 months counselling while in the community both in respect of his sex offending and his depression. Mr Taylor claimed undiagnosed and untreated depression was a factor in his offending. He is still taking medication for his depression. He has also been registered for nearly 10 years under the Child Protection (Offenders Registration) Act 2000 (NSW) scheme. Throughout this period since 31 December 1994, there has been no recurrence of his offending behaviour.
50. Mr Taylor told me he recognises that his criminal misconduct was very serious, that offences against children are both morally and legally wrong, and that he deserved his prison sentence and would never repeat his actions. In giving evidence, he did not seek to avoid difficult issues and answered questions put to him in cross-examination directly. Mr Taylor provided a plausible explanation in relation to questions raised about the use of his credit card and provided some supporting documentation from his credit card company. I have therefore not taken the questions raised into account.
51. The two references provided by Mr Taylor are of little value in making an assessment. I note, however, that he still lives with his mother and brother in the same family home that his parents purchased in 1989 and this and the local references, do, at least, suggest a degree of acceptance of him by the community. Mr Taylor is now aged 52 and receiving a disability support pension. Mr Taylor’s reputation will probably forever be tainted by the moral opprobrium with which his misconduct is rightly viewed. However, having regard to the intervening period and Mr Taylor’s assessment of his misconduct and his evidence about the steps he took towards rehabilitation, I am satisfied that he has reformed and, in terms of his enduring moral qualities, he should now be regarded as of good character.
Decision
52. The Tribunal sets aside the decision under review and remits Mr Taylor’s application for citizenship to the Minister for reconsideration with a direction that Mr Taylor should now be considered as of good character.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President.
Signed:.............................[sgd]........................................
AssociateDate/s of Hearing 18 August 2011
Date of Decision 2 February 2012
Counsel for the Applicant D Ash
Solicitor for the Respondent J Cummings
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