THDX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2022] AATA 62
•20 January 2022
THDX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 62 (20 January 2022)
Division:GENERAL DIVISION
File Number: 2020/6497
Re:THDX
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member D. J. Morris
Date:20 January 2022
Place:Melbourne
The Tribunal affirms the decision of the Minister dated 14 September 2020 to revoke the Applicant’s Australian citizenship.
........................................................................
Senior Member D. J. Morris
Catchwords
CITIZENSHIP – applicant was conferred Australian citizenship – minister revoked citizenship on two bases – applicant convicted of serious offence – minister satisfied contrary to the public interest for applicant to remain an Australian citizen – applicant sought review by Tribunal – threshold question would person be rendered stateless – consideration of factors – is discretion enlivened on the facts - is it contrary to the public interest for applicant to remain an Australian citizen – what does contrary to the public interest mean – relevant factors to take into account – should the discretion be exercised to revoke citizenship – decision under review is affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 33A, 37
Australian Citizenship Act 2007 (Cth), ss 3, 25, 28, 34, 52
Criminal Code Act 1995 (Cth), s 474.17(1)Migration Act 1958 (Cth), s 35
Cases
Director of Public Prosecutions v Smith [1991] VicRep 6
Irving and Minister of State for Immigration, Local Government and Ethnic Affairs [1996] FCA 663
McKinnon v Secretary, Department of Treasury [2005] FCAFC 142; (2005) 88 ALD 12
Minister for Home Affairs v Waraich [2020] FCA 1513
NPRT and Minister for Home Affairs; Re [2020] AATA 3641
Osorio and Minister for Immigration and Citizenship; Re [2007] AATA 59
O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210
Spall and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs; Re [2021] AATA 4290
TRHL and Minister for Immigration and Border Protection; Re [2015] AATA 803
TRHL v Minister forImmigration and Border Protection [2016] FCA 3765
Water Conservation & Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492ZDZG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs; Re [2020] AATA 2000
Secondary Materials
Pakistan Citizenship Act, 1951 (Pakistan), ss 4, 14
REASONS FOR DECISION
Senior Member D. J. Morris
20 January 2022
BACKGROUND
The Applicant in this matter, THDX, was born in 1980 in Karachi, Pakistan. He migrated to Australia in 2012. On 20 April 2016, he applied for Australian Citizenship by conferral. On 26 November 2016, THDX was granted citizenship.
On 8 August 2017, following a guilty plea, THDX was convicted in the District Court of New South Wales of the offence of Using a carriage service to groom a person under 16 years of age for sexual activity, contrary to section 474.17(1) of the Criminal CodeAct 1995 (‘Criminal Code’) of the Commonwealth.
He was sentenced to two years’ imprisonment, to date from 8 August 2017 to 7 August 2019. The Court further ordered THDX be released on 7 February 2018 after serving six months on entering recognizance of $500 to be of good behaviour for 18 months.
THDX’s conviction brought him into the scope of section 34(2)(b)(ii) of the Australian Citizenship Act 2007 (‘the Act’), which confers on the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Minister’) the discretionary power to revoke a person’s Australian citizenship if the person has been convicted of a “serious crime” under section 34(5) of the Act.
However, the Minister may not revoke Australian citizenship under section 34(2) of the Act if the power to revoke relies only on section 34(2)(b)(ii) and the Minister is satisfied that the person would, if the Minister were to revoke the person’s citizenship, become a person who is not a national or citizen of any country. The Tribunal will use the internationally accepted term of ‘stateless’ in these reasons to describe a person in this circumstance.
If the Minister is satisfied that exercise of the discretion would not have the result of rendering the person stateless, the Minister must also be satisfied under section 34(2)(c) of the Act that it would be contrary to the public interest for the person to remain an Australian citizen.
On 14 September 2020, the Minister decided to revoke THDX’s Australian citizenship. THDX has sought a review of the Minister’s decision by the Tribunal. His right to do so is in section 52(1)(f) of the Act.
HEARING
The hearing was held in person on 7 December 2021. THDX was represented by Mr Navid Baghi of Amity Lawyers. The Minister was represented by Mr Will Sharpe of HWL Ebsworth Lawyers. Mr Sharpe appeared by video with leave of the Tribunal under section 33A of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’) owing to travel restrictions occasioned by the public health emergency. The Applicant gave evidence and was cross-examined. His wife, whom the Tribunal will call Ms XW, also gave evidence, as did a work colleague and friend, Mr XC, both in person.
The Respondent lodged documents under section 37 of the AAT Act, which were admitted into evidence as ‘TD’ documents (Exhibit R1).
The Applicant lodged the following documents, which were also taken into evidence:
(a)Statutory declaration of THDX, declared 26 August 2021 (Exhibit A1);
(b)Statutory declaration of THDX, declared 20 October 2020 (Exhibit A2);
(c)National Disability Services Scheme letter, dated 14 April 2021 (Exhibit A3);
(d)THDX’s National Disability Services Scheme card, lodged 27 August 2021 (Exhibit A4);
(e)Prescription made out to son of THDX, dated 8 April 2021 (Exhibit A5);
(f)Payslip of THDX, lodged 27 August 2021 (Exhibit A6);
(g)Email to THDX refusing job, dated 27 January 2021 (Exhibit A7);
(h)JDRF letter to Ms XW, dated 21 April 2021 (Exhibit A8);
(i)Email to Tribunal Registry, dated 26 November 2020 (Exhibit A9);
(j)Email to Mr Jeffrey Cummins, psychologist, and his report of 22 June 2021 (Exhibit A10);
(k)Letter of Dr Stan Alexiou, dated 10 August 2021 (Exhibit A11);
(l)Statutory declaration of Ms XW, declared 26 August 2021 (Exhibit A12);
(m)Statement of Mr XC, dated 25 August 2021 (Exhibit A13);
(n)Statement of AWS, dated 10 March 2017 (Exhibit A14);
(o)Statement of MV, dated 10 March 2017 (Exhibit A15);
(p)Medical report of QM, lodged on 27 August 2021 (Exhibit A16); and
(q)Article by Dr Murad Moosa Khan ‘Private healthcare in Pakistan - costly, unregulated and predatory’, dated 18 November 2019 (Exhibit A17).
At the conclusion of the hearing, the Tribunal directed the parties to provide closing submissions in writing, which each did.
THE LEGISLATIVE FRAMEWORK
The provisions relating to the revocation of Australian citizenship by conferral are set out in section 34(2) of the Act:
Revocation by Minister – offences or fraud
…
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.
(3) However, the Minister must not decide under subsection (2) to revoke a person’s Australian citizenship if:
(a) the Minister may revoke the person’s Australian citizenship under that subsection only because of the application of subparagraph (2)(b)(ii); and
(b) the Minister is satisfied that the person would, if the Minister were to revoke the person’s Australian citizenship, become a person who is not a national or citizen of any country.
Time citizenship ceases
(4) If the Minister revokes a person’s Australian citizenship, the person ceases to be an Australian citizen at the time of the revocation.
Serious offence
(5) For the purposes of this section, a person has been convicted of a serious offence if:
(a) the person has been convicted of an offence against an Australian law or a foreign law, for which the person has been sentenced to death or to a serious prison sentence; and
(b) the person committed the offence at any time before the person became an Australian citizen.(Footnotes omitted.)
The term “serious prison sentence” is defined in section 3 of the Act to mean a sentence of imprisonment for a period of at least 12 months.
The revocation of Australian citizenship was described aptly by Senior Member Walsh in Re:TRHL and Minister for Immigration and Border Protection [2015] AATA 803 when she said, at [23], that it is an “extraordinary power which has historically been used sparingly”. The fact that this is a power that the Minister has not delegated underlines that its use is not a routine or common occurrence.
Revocation of Australian citizenship can potentially have serious consequences for a person and, in some cases, for his or her family. It is nonetheless a power that the Parliament has explicitly given to the Minister in the Act.
As set out above in section 34(2) of the Act, if citizenship of a person is revoked, the person ceases to be an Australian citizen immediately that occurs. Section 35 of the Migration Act1958 (‘the Migration Act’) provides:
Ex-citizen visas
(1)There is a class of permanent visas to remain in, but not re-enter, Australia, to be known as ex-citizen visas;
(2) …
(3)A person who, on or after 1 September 1994, ceases to be an Australian citizen while in the migration zone is taken to have been granted an ex-citizen visa when that citizenship ceases.
Therefore, if citizenship is revoked the person immediately becomes the holder of an ex-citizen visa, by operation of law.
OFFENDING
Before the Tribunal (TD, p 209) was an Australian Criminal Intelligence Commission report dated 17 June 2020. It recorded a single court outcome relating to THDX, that in August 2017 at the District Court of New South Wales he was convicted of the offence of Use carriage service to groom person under 16 years of age. The report records that he was sentenced to imprisonment for two years, starting from the date of the conviction and ending in August 2019, but to be released in February 2018 on entering recognizance of $500 to be of good behaviour for 18 months. There were no other convictions or pending outcomes recorded for the Applicant.
The foundation of the offence was section 474.17(1) of the Criminal Code of the Commonwealth. The period of offending was between November 2013 and January 2014. The maximum penalty available for the offence is 12 years’ imprisonment.
The sentencing remarks were in the papers before the Tribunal (TD, pp 179-194). THDX engaged in online communication with an assumed online identity called ‘ES’, said to have been, and thought to have been, a female aged 13 or 14 years old throughout the period of the offending. THDX engaged with what he thought to be a female of this age using Skype and a chat service. He was arrested in July 2016 and was on conditional bail until his appearance for sentencing. THDX entered a plea of guilty at a Local Court hearing in September 2016 and was committed to the District Court for sentencing.
An agreed statement of facts was submitted to the Court and referred to by the Acting Judge during His Honour’s sentencing remarks. In November 2013, THDX engaged with the assumed identity (who was actually a police officer performing duty as an online operative), who identified herself as being 13 years old. THDX said he was double her age. He was in fact in his early 30s. There was a general exchange between the two. The assumed identity informed THDX she was in year 8 at school. The conversation then turned to being of a sexual nature and the Applicant asked for a ‘full body’ picture. THDX asked ES whether she watched pornography, whether she masturbated and about the size of ES’s breasts.
In December 2013, THDX engaged in a further online communication with ES using Skype. He asked her whether she liked dating. ES reminded him she was aged 14. The Applicant then engaged in further sexualised discussion and discussed fellatio and then cunnilingus. In January 2014, THDX engaged in a further online conversation with the assumed identity. ES stated she was in Perth and the Applicant said he could visit her. There were further heavily sexual remarks made to ES. ES then asked THDX for his mobile phone number, which he provided. A female officer called the Applicant’s mobile phone and engaged in a conversation for about five minutes which was recorded, with the officer adopting the identity of a 14-year-old girl from Perth named ES.
In July 2016 New South Wales and Australian Federal police officers attended the residential address of THDX with a search warrant. They seized a laptop computer, a mobile phone and a passport. THDX was arrested.
His Honour then went on to refer to the personal circumstances of THDX. He was then aged 36, married with a young son and daughter (born respectively in 2011 and 2013). THDX holds a degree in computer engineering and a Master of Business Administration in marketing and was at the time of the statement of agreed facts employed as an IT consultant. He had no recorded criminal convictions.
His Honour said:
In terms of the objective gravity of what the offender did, the first thing to note is that according to legislation it does not matter whether the assumed identity that the offender thought he was communicating with is a real person or not.
In my assessment this was in reality an offence of considerable gravity and notwithstanding the fact that there really was no 13 or 14 year old [ES], what the offender was trying to do, what he thought he was doing was to debauch a 13 or 14 year old girl.
Any right thinking member of the community who in fact had a 13 or 14 year old daughter would be simply enraged at the thought of somebody like the offender trying to debauch their daughter in this way, in secret, with lurid and grossly improper suggestions made.
Indeed, in my view, it is not only parents of 13 or 14 year old girls who would feel enraged at the thought of this conduct, any thinking member of the community would feel that way. Just as children are entitled to be protected from physical harm, they are entitled to be protected against this kind of insidious, lurid, mental, interference as well.
Having given some thought to the matter I find it difficult to escape the conclusion that in the offender’s mind the identity he thought was 13 or 14 year old girl on the other side of Australia really did not matter that the welfare of this person really did not matter much because of, firstly, what he thought was the anonymity of the internet and, secondly, because I am forced to assume, that she was remote for him on the other side of the country. In terms of people being enraged at this happening to their 13 or 14 year old daughters I have not the slightest doubt that if somebody did this to the offender’s daughters he would be similarly engaged and with absolute justification.
The Crown has submitted correctly that this is a serious offence evidenced in part from the fact that the prescribed penalty for it is a maximum penalty of 12 years imprisonment. The Crown submits correctly that during the significant period involved the offender engaged in conduct designed to obtain the assumed identity’s trust and confidence and draw her into intimate conversation. The Crown says, again in my assessment, correctly that the offence involved the sexual manipulation and exploitation of a girl who the offender thought as I said before was only 13 or 14. For his part, although he was at the time 33, [THDX] falsely represented himself as somebody who was 25 and later 28 with the aim of making it easier to groom the assumed identity to engage in civil activity with him. His offending extended over a period of two months.
The Acting Judge went on to consider other authorities and noted that the communications with the assumed identity in this case were “lurid and graphic”, and further noted this type of offending allowed an offender to hide behind what they think is the anonymity of the internet to groom children sexually.
His Honour then considered submissions that THDX was suspicious about the assumed identity and dismissed a submission that, while the exchanges were inappropriate, they were not sexual in nature. The Acting Judge called that an incredible statement which he did not accept.
The Acting Judge noted a report that THDX was a low risk of general sexual offending which His Honour remarked “may be true” and then recorded that he suspected the process, including the delay in sentencing, has had such a “searing effect” on THDX that he will never offend in this way, or perhaps any other way again.
His Honour took into account submissions about THDX being a loving, family man, with good prospects of rehabilitation. He also discounted the penalty to reflect an early plea of guilty but did not accept submissions that a non-custodial sentence be imposed. The Acting Judge also took into account the significant delay between the offending in 2013 and early 2014, with TDHX not being brought for sentence until 2017. He then imposed a two-year sentence with a recognizance release after six months in custody.
PARTIES’ OPENING SUBMISSIONS
Mr Baghi submitted that the Applicant’s case is that the two issues before the Tribunal are whether it is contrary to the public interest for THDX to remain an Australian citizen and, secondly, whether the discretion to revoke the Applicant’s citizenship should be exercised. He contended it would not be contrary to the public interest and, if that argument was not successful, the discretion to cancel should not be exercised because of the effect of revocation on the Applicant’s wife and children, all of whom are Australian citizens.
Mr Sharpe submitted that the Respondent agreed with the outline of the issue put by the Applicant and noted that there was no dispute between the parties as to whether the power is enlivened. Mr Sharpe also noted that if the Department of Home Affairs (‘the Department’) was aware of THDX’s offending when he applied for Australian citizenship in April 2016 and at the time the application was approved in November 2016, it is likely that the application would have been refused for THDX failing the good character requirements at section 21(2)(h) of the Act. He further noted that the Minister or his delegate must not approve an application when proceedings are pending (section 24(6) of the Act), and submitted that had the delegate considering THDX’s application been aware of the offending, the delegate would have been required not to approve the application for citizenship.
ORAL EVIDENCE
Evidence of the Applicant
THDX gave evidence that at the time of his offending he was engaging with online chats with various people. He said he had met various women online and that “you don’t have a particular identity”. He said he was talking to “on-line girls” and that his wife was not aware of what he was doing, and that it was a “fantasy world.”
He stressed to the Tribunal that the people he was engaged with were over the age of 18, or stated that they were, and that apart from the three instances which were the foundation of the offence, he had not engaged in online communication with any person under the age of 18 years, before or since.
THDX told the Tribunal how the police came to his house early one morning while he was getting ready for work. He said they showed him a document that he had engaged in these online conversations three years before and he “accepted my mistake straight away and said definitely I did it. It was a time passing thing, a fantasy. My family was not available.”
THDX said he had been on holiday with his family in Pakistan but only had four weeks’ vacation, so he had returned to Australia before them. THDX said that when the assumed identity, ES, claimed to be “14 or 15” and asked his age, he multiplied it by two and said he was 28. He said when he provided his mobile number and spoke to what he described as a female mature voice, he wrote on the chat line the words “you are not 14”. He told the Tribunal, “I should have stopped then.”
Mr Baghi asked THDX whether there were any more chats of this kind. THDX replied: “No. I was totally alone. Then the family came back.”
THDX said he was arrested and taken to Court. He said the police said they had found no other evidence of improper communications on his computer or mobile phone, so he was granted bail, with reporting requirements every two or three days.
THDX said he arranged to see a psychologist and explained to her what had taken place, and she explained the severity of the offending. He said his wife was shocked and angry when she found out, at the time the police came to their house, and he could not justify his actions to her.
THDX said his only goal was to get a job but many prospective employers want police checks or references and “I had a big gap”. He said he worked for five years in Australia, having originally arrived on a skilled migrant visa.
THDX said since his citizenship was revoked, he has been on an ex-citizen’s visa. As set out above, while this gives him the right to permanent residency and to work in Australia, he said some employers want to know the nature of the visa. THDX said on one occasion he had got to a third interview stage with a potential employer and then disclosed he was on an ex-citizen’s visa, which led to further questions and then a polite “no” to taking his application for the job any further.
THDX said he was aware that the ex-citizen’s visa allows him the freedom to leave Australia but not the right to return. He said his sister in Pakistan is dying of stage four cancer and that his mother, who also lives there, is unwell. THDX said he has used the excuses of the pandemic and the cost of flights to explain why he has not visited, because he does not want his wider family to know what he did.
THDX said that his son was eight months old when he and his wife migrated to Australia, and their daughter was subsequently born in this country. He said they had only been back to Pakistan for a few weeks since coming to live here.
Under cross-examination Mr Sharpe took the Applicant through his employment history. He noted an email from a prospective employer dated January 2021 which stated (A7):
While we believe you are a potentially strong candidate for the Test Engineer position, after careful consideration, we have decided not to proceed further with your candidacy. As discussed, this matter absolutely would have arisen later in the recruitment process through a reference or police check. As such, this decision is arrived at on the basis of fairness and transparency with regards [sic] to the people already part of our organisation, as well as alignment to our values and culture as a business.
THDX agreed with Mr Sharpe that this email makes clear that the nature of the conviction would have come out anyway when a police check was requested.
Mr Sharpe noted that while an ex-citizen visa does not permit a holder to re-enter Australia, THDX could apply for other visas. THDX said he was not aware of this and had not searched other visa categories.
In response to a direct query from the Tribunal, Mr Sharpe said one of the categories of visa the Applicant could apply for is a resident return visa.
THDX said that he last went to Pakistan in January 2019. He said he had been told by his lawyers it was technically possible that his ex-citizen visa could be cancelled, but he has received no correspondence from the Department to that effect. He noted that when he was advised of the ex-citizen visa the Department explained any such consideration was a separate process.
A letter from an officer of the Department (TD, p 227) to the Applicant relevantly states:
You have asked whether there is a possibility that your Ex-citizen visa will be cancelled. The consideration of cancellation of your visa is a separate process and if the Department decides to proceed with considering cancellation, you will be given the opportunity to provide reasons why your visa should not be cancelled. The impact on you and your family of possible visa cancellation and removal from Australia would be taken into consideration at that time.
Mr Sharpe took THDX to his application for citizenship, lodged on-line on 20 April 2016. THDX agreed he had completed the form himself. At TD p 143 was the question: ‘Has the applicant been convicted of, or found guilty of, any offences overseas or in Australia (include all traffic offences that went to court, including offences declared in your permanent residence application, and any ‘spent’ convictions)?’: THDX had responded “No”. Mr Sharpe noted that this was correct as of April 2016.
At TD pp 169-170 was a letter from the Department dated 20 April 2016 acknowledging the application which includes the following passage:
Change to circumstances
You must tell us about any changes to your circumstances including your name, contact details, address or information about children included in your application, as soon as possible.
The letter then goes on to explain how to enter a change of address, and the website to visit to advise of any other changes in circumstances.
Mr Sharpe asked the Applicant whether he informed the Department of his arrest and plea of guilty, entered at Court. He responded: “Honestly I wasn’t aware. Next, I got a certificate five days after I was charged, on 30 July 2016 saying citizenship was approved and you have to appear for a ceremony.”
THDX said he accepted approval of his application for citizenship occurred after he was charged with the offence, “Yes, I think it was five days.”
THDX agreed that he used an assumed name when engaged in the online communications. He said when the police who attended his residence started to read out details of the online chat exchange, he stopped them and said he accepted that he did it.
THDX said he did not say that any of the exchange as recorded was inaccurate, but he had wanted some additional material when he asked ES about her camera being broken to be included, which his lawyer said was not necessary.
THDX was taken to a report by Mr Jeffrey Cummins, clinical and forensic psychologist, dated 22 June 2021 and in particular paragraph 44 of that report, which stated:
In terms of his offending, he stated that at the time he was living at home alone because his wife and children were still holidaying in Pakistan. Because of his work commitments, he returned home on his own and it was over that period that he offended. At interview he wholly accepted he engaged in repeated sexualised chat communication with the victim and that it was he who initiated the sexualised communication. Nonetheless, at interview he stated that at the time of engaging in that behaviour he believed he was engaging in fantasy type chats with the person who he was chatting to actually being an adult. Simultaneously, though, he acknowledged at interview he was feeling both sexually frustrated and sexually aroused at the time of offending.
When read this paragraph, THDX accepted it was accurate. He said: “I was there for that kind of thing, but not underage – my wife was not there. I was being curious. Wanted that type of discussion. Had done this kind of chat before, with adult females.”
Mr Sharpe read out extracts of the sentencing remarks which detailed the contents of the conversation between the Applicant and ES, and asked him, if he had any doubts about the age of the person with whom he was dealing, why did he not end the chat in 2013. THDX responded:
That’s my mistake. This is what I did wrong. I was listening to my mind. I’m not justifying it, it was totally wrong; I was listening to my desires, regardless of age.
Mr Sharpe pressed THDX on why he returned to chat with the same person, ES, in December 2013 and January 2014. He responded:
Because I was still trying. If someone is making me a fool, I will make them a fool. Then I created another identity and proved they were a liar. I was there for that kind of chat, but not underage. I am a father. My religion is against it. I made a mistake. I should have stopped.
Mr Sharpe noted that the sentencing Judge did not accept the submissions that THDX thought he was not talking to a 14-year-old girl.
In answer to direct questions from the Tribunal, the Applicant agreed that while he had indicated part of the reason for him engaging in the communications which founded the offending was because his wife was still in Pakistan, he had nonetheless previously engaged with on-line discussions with females on earlier occasions when his wife was in Australia.
Evidence of Mr XC
Mr XC gave evidence that he has known TDHX since 2016, initially as a work colleague and then becoming a friend.
Mr XC said he had been to THDX’s house and knew his family. He said he was aware of the revocation of the Applicant’s citizenship because THDX had come to his house and told him of some issues with online chat. Mr XC said that the Applicant was “framed or entrapped”, but when the Tribunal sought clarification the witness said this was his own impression, not how THDX had characterised his offending.
Mr XC said he would never see THDX engaging with minors. Mr XC said he had two daughters of his own and has never felt any concerns or seen anything out of the ordinary in the conduct of THDX; and he stated that he did not have any “trust issues” with the Applicant.
Evidence of Ms XW
The Applicant’s wife gave evidence that they had known each other for 12 years and have been married for 11 years. They have a son and a daughter.
Ms XW described THDX as a caring husband and a great father. She said he was good with the children and especially when she was unwell.
Ms XW said she had no idea about her husband’s online activities until the police visited their home early one morning in order to undertake a search and arrest THDX. She said her husband explained to her what he had done and was “100 per cent honest.”
Ms XW said she fully supports him and described him as a good human being who had made a mistake. She said: “I know his character; reputation is another thing.”
Ms XW said she heavily relies on his husband. She does not drive but has obtained a learner’s permit. She said their son had been diagnosed with Type One diabetes. She said although she trained as a teacher in Pakistan, she had not worked in Australia and THDX is the breadwinner in the family.
Ms XW said that her husband’s ex-citizen visa has been a problem with obtaining permanent employment, and while he is currently employed it is a contract job which could end at any time. She said she had relied on social security payments when THDX was incarcerated and has done so since.
CLOSING SUBMISSIONS
For the Applicant
Mr Baghi submitted that “public interest” is not defined in the Act, so the Tribunal would have to refer to case law and submitted that the advantages to Australian society have to be weighed against the disadvantages to THDX of cancelling his citizenship.
He submitted that THDX entered a plea of guilty, has an understanding of the offence and has shown true contrition. He contended that the hardship to the Applicant’s family and the possibility of the cancellation of his ex-citizen visa should be taken into account, including the best interests of the Applicant’s children.
He submitted that there is no question that the offence was very serious, but that the Applicant accepts the gravity of his actions, which he describes as the “biggest mistake of his life”. He noted that the offending occurred three years before Australian citizenship was conferred, and that the police had information on the Applicant’s internet protocol address, so it can be assumed he was monitored over the following three years, i.e., the period between the offending and his arrest.
Mr Baghi said that police had taken away and examined all the Applicant’s electronic equipment, and there was no indication of any further communications with underage persons. He submitted that there is “no identifiable victim” in this case. He noted that although the maximum term of imprisonment for the offence is 12 years, THDX was sentenced to serve only two years and that this was at the lower end of the range, indicating it was not the most serious offending of its kind.
Mr Baghi submitted that the Court did not view THDX as a danger and released him without bail conditions. He noted Mr Cummins’ conclusions (at paragraph 48 of his report), that the offending was “situationally motivated.”
Mr Baghi said that the Applicant has focussed on employment and providing for his family and has undertaken some voluntary work for the Salvation Army. He said in the light of the fact that it is eight years since the offending, it is contended that he has re-established his good character.
He submitted that it is open to the Minister to cancel THDX’s visa at any time, which would have grave implications for the Applicant’s family, as the children have always called Australia home and his son has diabetes which would be better cared for in Australia than in the facilities available in Pakistan.
For the Respondent
Mr Sharpe noted that on the very same day that THDX was approved for citizenship, he was charged with using a carriage service to groom a minor, and when the citizenship ceremony was held, the Applicant was awaiting sentence, having pleaded guilty. He said none of this information was available to the delegate who approved the application and, if it has been, the application would have been refused.
He said that after THDX’s citizenship was revoked and he received an ex-citizen visa, he moved under the provisions of the Migration Act. He noted that no action has been taken so far to pursue the cancellation of the Applicant’s visa, and a period of around 12 months has now elapsed.
Mr Sharpe said that the Applicant’s representative was asking the Tribunal to assume that action will be taken by the Department and then, what the outcome will, or might, be. He submitted that it is “far from certain that action will be taken, and even less certain that the visa would be cancelled.”
He submitted that the prospect of the Applicant remaining on an ex-citizen visa is speculation, and there are avenues for THDX to apply for other visas. The Respondent said in written closing submissions, in reference to subclass 155 and 157 resident return visas:
If the Applicant were to make an application [for a resident return visa], the grant of the visa would be subject to the Minister (or a delegate) being satisfied that the Applicant satisfies the criteria for the visa, and that there is no other reason that the visa should not be granted. Nevertheless, it appears that the Applicant would currently satisfy the requirements of subclause 155.212(2) [of Schedule 2 of the Migration Regulations 1994] for the purposes of a Subclass 155 resident return visa.
….
Again, if the Applicant were to make an application, the grant of the visa would be subject to the Minister (or a delegate) being satisfied that the Applicant satisfies the criteria for the visa, and that there is no other reason that the visa should not be granted. Nevertheless, it appears that the Applicant would currently satisfy the requirements of subclass 157.212(2) for the purposes of a Subclass 157 resident return visa.
As there is no general restriction on the holder of an ex-citizen visa applying for a visa, it would also be open to the Applicant to explore other visa options that may also provide him with permission to remain in, and travel to and enter Australia.
Mr Cummins said, at paragraph 48 of his report, that THDX’s offending behaviour was “situationally motivated, opportunistic and reflective of recklessness”. Mr Sharpe submitted that this passage does not address Mr Cummins’ separate conclusion that the Applicant said he was “sexually frustrated and sexually aroused” at the time of the offending. Mr Sharpe said given that the assumed identity had represented herself to be underage, why – if it was situationally motivated – was it “that kind of chat” he was engaged in.
Mr Sharpe noted that the Applicant had raised issues about ES not having a camera during their first exchange in November 2013 and contended it was highly improbable that THDX would have returned to the chat if he had doubts about the real identity of the person.
Mr Sharpe submitted that a custodial sentence of two years was serious, especially when it was THDX’s first offence, of any kind.
CONSIDERATION
Is the discretion in section 34(2) of the Act enlivened?
The first task of the Tribunal is to consider whether the discretion in section 34(2) of the Act is enlivened. Although it was not in dispute between the parties, the Tribunal formally finds that the Applicant was convicted of a serious offence within the meaning of sections 34(2)(b)(ii) and 34(5) of the Act. For completeness, the Tribunal also finds that the provisions of sections 34(2)(b)(i), (iii), and (iv) of the Act are not engaged.
Was the delegate precluded from making the grant by section 24(6)(a) of the Act?
There was discussion during the hearing about the timing of the charge being laid against THDX and the approval of his application for citizenship. THDX’s oral evidence, which was not contested by the Respondent, is that the police visited his home at around 7.00am on 25 April 2016 and the charge was laid against him that day. The Respondent submitted that on this very day, 25 July 2016, a delegate of the Minister approved THDX’s application and that the time of the effect of that decision was 8.24am.
The Respondent, in written closing submissions, acknowledged that the Applicant could not have reasonably informed the Department of the charges prior to approval. I consider this is a proper concession. The arrest of the Applicant is nothing more than the police considering they had charges to prefer against him, and in the circumstances of the day, it is not reasonable to say that THDX could have advised the Department, especially in a case where his computer and mobile telephone had been seized by the police and taken away.
However, it is also factual that the process of granting of citizenship by conferral commences on the day a person lodges an application, and does not conclude, in a case where a person (like THDX) is required to make a pledge of commitment, until the day the pledge is made, and citizenship is actually conferred (see section 28 of the Act). Approval of citizenship is cancellable under section 25 of the Act between the time an application is approved and the pledge is made; and cancellation would have been possible in relation to THDX, probably under section 25(2)(iii) of the Act, the “good character” ground. However, while it is useful to set out the law, that is not what occurred in this case. Whether cancellation of approval would have happened, if the Applicant had thought to advise the Department after he was charged and before he made the pledge, is speculatory.
What is before the Tribunal and what is not
What is also speculatory is what might occur if the Applicant’s ex-citizen visa is cancelled. Extensive submissions were made on behalf of the Applicant about this possibility and about what prospects THDX would have of being granted another category of visa, such as a Resident (Return) visa.
The Tribunal considers that to embark on the path of considering possibilities would lead it into the quicksand of addressing a question not before it. The two-part question before the Tribunal is referred to above and was agreed by the parties in oral submissions at the hearing. It is this: Is the discretion enlivened in section 34(2), in this case because section 34(2)(ii) of the Act is satisfied; and, if it is, the second limb set out in section 34(2)(c) of the Act is that the Minister (or Tribunal, standing in the Minster’s shoes) must also be satisfied that it be contrary to the public interest for the Applicant to remain an Australian citizen.
The Department officer in the email to THDX dated 30 September 2020 (TD, p 227) correctly said that if the Minister or his delegate determines to cancel a visa, there are separate provisions of the Migration Act which are applied. Those provisions in that Act include the right of the visa-holder to make representations to Minister or a delegate and, if there is a refusal, to then avail themselves of a right of review of a delegate’s decision to this Tribunal.
It is not productive for the Tribunal to hypothesise about whether the Department might move to cancel the visa currently held by THDX, nor about the prospects of him being granted a different category of visa. The Tribunal does note the Respondent’s submissions at the hearing about the fact that the Applicant has an Australian citizen wife and two Australian citizen minor children, all of whom are resident here. Without unnecessarily embarking on speculation, it is axiomatic, in my assessment, that these would be strong and relevant factors in any consideration of change to THDX’s migration status. I note that Mr Sharpe explicitly made submissions that it was open for the Applicant to apply for a Resident (Return) visa, without entering into any speculation about the likelihood or otherwise of such a visa being granted.
Would the Applicant be rendered stateless?
Section 34(3) of the Act precludes the Minister cancelling the citizenship of a person on the basis of conviction for a serious offence if the effect of revocation would be that the person was not a citizen or national of any country, i.e., was rendered stateless.
The Tribunal notified the parties that they should include in their written closing submissions any contentions on the relevance of this provision to THDX. The Respondent submitted that provisions of the Pakistan Citizenship Act, 1951 (the ‘Pakistan Citizenship Act’) are relevant. Section 4 of the Pakistan Citizenship Act provides that every person born in Pakistan after the commencement of that Act is a citizen of Pakistan. THDX was born in Karachi, Pakistan, in 1980, and became a citizen of that country at birth.
Section 14 of the Pakistan Citizenship Act sets out that dual citizenship or nationality is not permitted:
Dual citizenship or nationality not permitted –
(1) Subject to the provisions of this section if any person is a citizen of Pakistan under the provisions of this Act and is at the same time a citizen or national of any other country he shall, unless he makes a declaration according to the laws of that other country renouncing his status as citizen or national thereof, cease to be a citizen of Pakistan.
(1A) Nothing in sub-section (1) applies to a person who has not attained twenty-one years of his age.
(2) Nothing in sub-section (1) shall apply to any person who is a subject of an Acceding State so far as concerns his being a subject of that State.
(3) Nothing in sub-section (1) shall apply, or shall be deemed ever to have applied at any stage, to a person who being, or having at any time been, a citizen of Pakistan, is also the citizen of the United Kingdom and Colonies or of such other country as the Federal Government may, by notification in the official Gazette, specify in his behalf.
(4) Nothing in sub-section (1) shall apply to a female citizen of Pakistan who is married to a person who is not a citizen of Pakistan.
The Respondent submitted that there are 19 countries which have a dual nationality agreement with the Islamic Republic of Pakistan. Australia is one of those countries. This means that Pakistani nationals who acquire Australian citizenship are not required to renounce their Pakistani citizenship. The Respondent therefore submitted that the revocation of THDX’s Australian citizenship will not render him stateless for the terms of section 34(3) of the Act.
In his written closing submissions, at paragraph 23, Mr Baghi acknowledged that THDX’s Pakistani citizenship is not in dispute. The Tribunal notes that in the papers before it is a photocopy of the data page of the Applicant’s Pakistan passport, which is valid until 26 December 2022 (TD, p 157).
The Tribunal finds that the prohibition in section 34(3) of the Act does not apply in this case. The Applicant is a citizen of Pakistan.
What does ‘contrary to the public interest’ mean?
What constitutes “the public interest” in the context of section 34(2) of the Act has been considered by the Tribunal on a number of occasions and these decisions point to the following features of that concept outlined in Director of Public Prosecutions v Smith [1991] VicRep 6:
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 the well-being of its members. The interest is therefore the interests of the public as distinct from the interests of an individual or individuals.
The Full Court of the Federal Court of Australia also considered the term “public interest” in McKinnon v Secretary, Department of Treasury [2005] FCAFC 142; (2005) 88 ALD 12 (‘McKinnon’), where Tamberlin J stated, at [12]:
The public interest is not one homogeneous undivided concept. It will often be multifaceted and the decision maker will have to consider and evaluate the relative weight of these facts before reaching a final conclusion as to where the public interest resides…In some circumstances, one or more considerations will be of such overriding importance that they prevail over all others. In other circumstances, the competing considerations will be more finely balanced so that the outcome is not so clearly predictable.
(Emphasis in original.)
In a more recent decision, Minister for Home Affairs v Waraich [2020] FCA 1513, Annastasiou J, at [43] endorsed the approach of Gilmour J in TRHL v Minister forImmigration and Border Protection [2016] FCA 3765, where His Honour held, at [41]:
…the expression of the public interest requirement under s 34(2)(c) as ultimately put on behalf of the Minister before the Tribunal as being “in the public interest that the appellant not continue to be an Australian citizen” is synonymous with the statutory language that “it would be contrary to the public interest for the appellant to remain an Australian citizen.”
When the phrase ‘the public interest’ is used in a statute, the subject matter and context of the relevant statute should be taken into account when a decision-maker is making an assessment. The High Court of Australia (Mason CJ, Brennan, Dawson, Gaudron JJ) in O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, endorsed the approach of Dixon J in Water Conservation & Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492, and held at [216]:
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…’
In Re:NPRT and Minister for Home Affairs [2020] AATA 3641 (‘NPRT’), Deputy President Sosso set out, at [73], a list of factors that should be taken into account when conducting an assessment as to whether a person remaining an Australian citizen would be contrary to the public interest in the context of section 34(2)(c) of the Act. I note that these factors were endorsed by Senior Member Cremean in Re:Spalland Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4290. I consider that the factors that the learned Deputy President set out neatly summarise the things that should be taken into account, noting that each case turns on its own factual circumstances and, as Tamberlin J said in McKinnon, the factors should be weighed carefully, especially in a case which might be finely balanced.
The factors Deputy President Sosso listed in NPRT were:
·The nature and severity of the offences perpetrated by the Applicant;
·Would the Applicant have been granted citizenship if the Department knew of his offending;
·Did the Applicant plead guilty to the offences, and what was his general conduct during the criminal proceedings;
·Has the Applicant shown remorse for the offences and true contrition;
·The length of time since the offences were committed and since the Applicant’s conviction;
·The risk of re-offending; and
·Whether the Applicant has re-established his good character.
The factors
With the necessary qualification that THDX has been convicted of only one offence, the Tribunal considers each of these factors in turn.
The nature and severity of the offence
Both Mr Baghi and Mr Sharpe submitted, without reserve, that the offence for which THDX was convicted was a serious offence. The Tribunal accepts that characterisation. It is objectively reflected in the fact that the Commonwealth Criminal Code carries a maximum penalty of 12 years’ imprisonment in relation to the offence.
The Applicant’s solicitor submitted that there was “no victim” in this case. The Tribunal considers it unwise to advance this sort of statement. While, factually, the assumed identity involved in the chat exchanges with THDX turned out to be a police operative and not a young female just entering her teenage, the activity in which the Applicant engaged is one that fuels insidious activity on the internet which is exploitative of children in real life. The basis of the offence is that it encourages, to use the words of the sentencing Judge, debauchery of young persons and, by this, fuels the production of child pornography. In that regard the Tribunal notes that the Applicant urged that ES send him intimate photographs. The Acting Judge found that THDX believed he was interacting with a female aged 13 or 14 years.
There is no doubt this is a very serious offence. While the penalty imposed on THDX was at the lower end of the range available to His Honour, the very imposition of a custodial sentence on a person with no prior criminal record in Pakistan (TD, p 28) or Australia (TD, p 209), and no apparent subsequent engagement of the type which led to the charge, reflects the Court’s assessment. It may however be accepted that the offending conduct was ‘contained’ to the three-month period in the indictment, and there was no evidence of continued offending after this period.
Would the Applicant have been granted citizenship had the Department known of the offending?
The Applicant submitted to the Tribunal a Tribunal decision Re: ZDZG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 2000. In that decision, the learned Senior Member referred to Re: Osorio and Minister forImmigration and Citizenship [2007] AATA 59 (‘Osorio’). In Osorio, Deputy President Hotop was considering a case where an applicant applied for Australian citizenship in May 1995. The application was approved in June 1995 and he received the certificate of citizenship in September 1995 (under the 1948 Citizenship Act, the predecessor to the Act).
Osorio was convicted by the Supreme Court of Western Australia of several sexual offences including three counts of sexual penetration of a child under 16 who he knew to be a lineal descendant in the period between 1 January 1993 and 1994, and other offences in periods including December 1994 and between August and May 1996.
Referring to the provisions of the 1948 Act and quoting the submissions of the Respondent, Deputy President Hotop said, at [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 to 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.
The learned Deputy President then concluded, at [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.
In THDX’s case, the offending took place, as set out in the charge, over a period starting in November 2013 and ending in January 2014. THDX applied for Australian citizenship by conferral on 20 April 2016 (TD, p 131). While the gravamen of the Applicant’s offending does not compare with the much more serious offending committed by Osorio, it is clear to me that, given the Applicant does not contest the conduct he was engaged in which founded the charge, had this conduct been something in the knowledge of the Minister or the delegate considering THDX’s citizenship application, his application would not have been approved. This is because, self-evidently, it would have been concluded that the conduct was not compatible with the Minister being satisfied that THDX was of good character at the time of the decision (as required by section 21(2)(h) of the Act). It is notable to further distinguish THDX’s conduct from that of Osorio, in the sense that he had ceased the offending conduct more than two years before he applied for citizenship.
Did the Applicant plead guilty and what was his general conduct during the proceedings?
The evidence before the Tribunal is that the Applicant pleaded guilty at the earliest opportunity. That is referred to by the Acting Judge and was taken into account in the imposition of the sentence. There was no evidence before the Tribunal that THDX was other than co-operative during the committal proceedings at the lower Court and the plea and sentencing hearings at the District Court.
Has the Applicant shown remorse and true contrition?
Apart from the Applicant’s statements of remorse in his oral evidence and written submissions, there was some evidence, in reports by professional psychologists with whom he engaged, of his remorse. Dr Karla Lopez, forensic psychologist, provided a pre-sentence report in February 2017 which stated (TD, p 52):
[THDX] is remorseful of his behaviour and especially for having deceived and disrespected his wife.
Dr Sandra Pucci, clinical psychologist, provided a report that THDX attended six appointments in May and June 2017 to engage in psychological therapy and discuss his offending, the reasons for it, and ways to militate his behaviour in the future. She stated (TD, p 56):
During the sessions, [TDHX] has started exploring his past actions and blaming himself for acting without thinking. He blames himself for not stopping the chat once he was told that the girl on the other side was 14 years old.
Mr Cummins in his report (Exhibit A10) refers to the Applicant being remorseful.
What troubled the Tribunal was the oral evidence of THDX, when he was pressed as to why he continued contact with ES after he was told in November 2013 by the person with whom he was interacting that she was a female aged 13 or 14. His explanation was that he realised the person with whom he was interacting was not underage and decided “if someone is making me a fool, I will make them a fool”. I do not accept this evidence. It is also inconsistent with what Dr Pucci reports he told her, during therapy sessions in 2017, namely that he blames himself for not severing contact as soon as ES told him her age. All three of the chat sessions had significant sexual content. The sentencing Judge did not accept THDX did not believe he was chatting with a 14-year-old, and the Tribunal cannot go behind that finding.
Some elements of THDX’s statements of remorse are self-serving. He told Mr Cummins how much he has been affected by having his passport confiscated and by being imprisoned, and how that has affected his wife. While these are understandable sentiments to hold, they relate to the effect on him and, to some extent, his wife. They do not address the kernel that having a highly sexualised conversation with a minor stranger female was intrinsically wrong. They do not amount in that sense to statements of contrition.
The length of time since the commission of the offences and the conviction
There was a relatively significant passage of time between THDX’s arrest and conviction and sentencing. He entered a plea of guilty at the lower Court in July 2016. He was committed for sentencing in the District Court, but the plea hearing did not take place until July 2017 and the sentencing in August 2017. The Acting Judge remarked that this delay was regrettable.
I accept Mr Baghi’s submission that there is no evidence that THDX engaged in other online sessions with minors. His computer and mobile phone and other devices were all seized when he was arrested. Mr Baghi submitted that it is likely that the police monitored his IP address between the period from January 2014 to the date of arrest. The fact that THDX was allowed to be at liberty between April 2016 and August 2017 indicates he was a low risk of flight or of further offending. As noted below, he was also permitted during this period to travel to Pakistan and return.
The risk of re-offending
In her pre-sentence report, Dr Lopez administered a Static-99 risk assessment tool, which is specifically designed for male sex offenders. She concluded that THDX was a “moderate low risk” of re-offending, with a nine per cent likelihood of reconviction of a new sexual offence within five years post-release and a 16 per cent likelihood of reconviction within 15 years post-release. Overall, at paragraph 23 of her report, after applying other assessment tools, Dr Lopez concluded THDX had a low risk of offending overall. Dr Lopez ended her report with the following passage (TD, p 53):
[THDX] would not be considered a good candidate for offence-specific treatment at this time based on the identified risk (low). The rehabilitative literature relevant to sexual offences indicates that intervention should match criminogenic need, which is lacking in this instance. However, [THDX] may benefit from counselling to deal with this distress pertaining to the current situation as well as to assist in the reparation or enhancement of his marital relationship.
In his report, Mr Cummins referred to Dr Lopez’s and Dr Pucci’s reports, and stated that THDX told him he had not undertaken any sexual offender course whilst in prison and had not undertaken any subsequent counselling or treatment for mental health. Mr Cummins examined THDX on 11 May 2021 and provided a report dated 22 June 2021. Before the Tribunal was a report (Exhibit A11) of Dr Stan Alexiou, clinical psychologist, dated 10 August 2021, stating that he saw THDX (and his wife) on six occasions in April, May and June 2021. It would appear Mr Cummins was unaware THDX was seeing Dr Alexiou, and that THDX did not mention this to Mr Cummins.
In his report, Mr Cummins said, at paragraph 44:
At interview he wholly accepted he engaged in repeated sexualised chat communication with the victim and that it was he who initiated the sexualised communication. Nonetheless, at interview he stated that at the time of engaging in that behaviour he believed he was engaging in fantasy type chats with the person who he was chatting to actually being an adult. Simultaneously, though, he acknowledged at interview he was feeling both sexually frustrated and sexually aroused at the time of offending.
Mr Cummins states, later in the report, at paragraphs 48 and 49:
It is therefore my conclusion that on the balance of probability his offending behaviour was situationally motivated, opportunistic and reflective of recklessness on his behalf. In my opinion his offending behaviour was unlikely to be reflective of having any sexual deviance which would/could prompt him to engage in contact sexual offending with an underage person.
It is therefore my overall conclusion that [TDHX’s] risk for committing a further similar offence or any more serious sexual offence is Low (where the risk categories are Low, Low-Moderate, Moderate, Moderate-High and High).
Mr Cummins observes that THDX had told him that at the time of the offending his family were still in Pakistan, having stayed longer on holiday there after the Applicant had to return to Australia to work. It appears to be suggested that this was part of the reason for THDX engaging in online chats, because he had time on his hands. However, earlier in his report Mr Cummins remarks that THDX said that he had engaged in chats in the past with adult females and he suspected his wife knew of this. That is also consistent with what THDX said in his oral evidence at the hearing.
I do not accept Mr Cummins’ conclusion that the conduct which founded the offending was “situationally motivated”. I am concerned that as recently as May 2021 THDX was maintaining that he believed he was chatting to an adult, but that he also told Mr Cummins that the sexually charged conversation he was having with a person who stated they were 14 years of age was sexually arousing.
It would seem to me that Dr Lopez’s conclusion that there was no criminogenic need for offence-specific counselling was a reasonable one. Other factors that support her and Mr Cummins’ overall conclusions of a “low risk” of re-offending are that THDX has a supportive and loving spouse, and a stable home life. He described his online interaction as a “dark time”, and I conclude that it was in all probability an aberrant period; but it was not one chat, it was three separate conversations initiated by the Applicant, and separated by about a month each time. Although he did not undertake sex offender specific treatment in prison, he was only incarcerated for six months and I accept that an informed assessment may have been made by corrections authorities not to offer him such treatment, including taking into account Dr Lopez’s opinion.
The fact that THDX has more recently engaged with Dr Alexiou in terms of what appears to be relationship counselling supports my conclusion that he has an appreciation that he needs to repair and enhance his marital relationship, as Dr Lopez opined may be beneficial. I find there would be a low risk of re-offending, but not a negligible risk.
Has the Applicant re-established his good character?
Mr Baghi submitted that THDX had re-established his good character since his offending. He submitted that the Applicant has been gainfully employed and was completely compliant with reporting obligations during the period when he was on bail. The Tribunal notes that in the papers is a report by the police officer responsible for supervising THDX’s bail and reporting obligations as a person placed on the sex offender register, which confirmed the Applicant’s diligent compliance without, in the words of the officer, a single example of non-compliance.
It was further submitted to the Tribunal that the Applicant has been focussed on providing for and supporting his family. Also, in the papers, and in Mr Cummins’ report, it is recorded that THDX was given permission (while on bail) to travel to Pakistan to visit his unwell mother in 2019, and he did so and returned to Australia in compliance with the scope of the permission given.
The Applicant pointed to voluntary work he undertook for the Salvation Army. He attached an email relating to this to his statutory declaration (Exhibit A2). The email refers to him working for Salvos Stores at an identified location for the period 23 January 2020 to 11 February 2020 as part of a Work for the Dole programme. The following day, the email records that THDX commenced employment. This is not, to the Tribunal’s mind, voluntary work in the purist sense, because it was undertaken as part of a Work for the Dole scheme, but it is nonetheless to the credit of THDX that he did this work for about three weeks.
The concept of ‘good character’
The Courts have considered the term “good character” on a number of occasions, especially in relation to the character provisions in the Migration Act. A leading case is Irving and Minister of State for Immigration, Local Government and Ethnic Affairs [1996] FCA 663 (Davies, Lee and R. D. Nicholson, JJ). In that case, Lee J relevantly said:
Unless the terms of the Act and regulations require some other meaning to 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 proven as a fact whilst the latter is a review of subjective public opinion.
In relation to applications for Australian citizenship by conferral, in BOY19 v Minister for Immigration and BorderProtection [2019] FCA 574, O’Bryan J referred to previous judgments about the term “good character” in the Migration Act and then said, at [87] to [88]:
As discussed earlier, the phrase “good character” refers to the enduring moral qualities of a person and not to their physical or mental attributes or abilities. The expression does not have a fixed and precise content and necessarily imports a discretionary value judgment informed by the subject matter, scope and purpose of the Act. The expression is concerned with moral qualities that are regarded as a necessary concomitant of Australian citizenship.
Consistently with Chapter 11 of the Citizenship Policy 2016, respect for the Australian Government and the laws of Australia, and respect for the institutions of government including governmental departments, is consistent with being of good character in the statutory sense. Such respect can be characterised as a moral quality that is relevant to citizenship. Conversely, disrespect for the Australian Government, the laws of Australia and governmental department reflects adversely on a person’s character in the statutory sense.
It is true to say that a person’s reputation may not be reflective of their good character. Equally, a person who has gained a bad reputation may nonetheless be of good character. Ms XW in her oral evidence expressed the view that character is not reputation. I interpreted her evidence to be that she knew her husband, THDX, and considered him of good character because of his conduct towards her and their children, and she holds that view notwithstanding the criminal offence to which he pleaded guilty.
There are some factors that support a conclusion that THDX is of good character, but the Tribunal’s conclusion is that his, at least partial, lack of appreciation of the damage that could have been caused by his offending somewhat undermines such a conclusion. It is not relevant to the Tribunal that ES was an assumed identity. The purpose of these types of police operations is to detect adults who are prepared to engage in grooming behaviour with minor children. I do not believe that a charge would have been likely to have been laid against the Applicant if he had no further contact with the assumed identity after the first exchanges in November 2013, but he did, and it was. A judge determined it was a serious enough offence for a first-time offender to be imprisoned.
I place some weight on the fact that there is no evidence of further such conduct after January 2014, and that THDX has no convictions in his country of birth or any other convictions or traffic infringements in Australia. I am inclined to the view that, as the sentencing Judge concluded, THDX is a person who can be fully rehabilitated, and I believe he is a long way down that path. But because of the nature of the offence and the recency of his term of imprisonment (albeit a factor not within the Applicant’s control), I cannot be satisfied that THDX has re-established his good character.
SUMMATION
The Tribunal notes that there are a number of submissions, fairly put, by Mr Baghi on the potential implications for the Applicant’s wife and young children if his citizenship is not restored. However, the concept of whether it is ‘contrary to the public interest’ for a person to remain an Australian citizen is directed outward, to an assessment, however imperfectly that may be done, of the interests of the Australian community at large. It is not directed inward to the personal circumstances of a person whose citizenship is being considered for revocation.
The High Court has said that the notion of the “public interest” should be considered in the context of the relevant statute. The Act provides in its preamble that citizenship represents full and formal membership of the community of the Commonwealth of Australia; and that persons who are conferred citizenship undertake to accept the obligation, inter alia, to uphold and obey the laws of Australia. While THDX has been convicted of a single offence, it is a very serious one. It is an offence that relates to a subject matter which the Tribunal considers is something the populace at large would regard as fundamental to the cohesion of Australian society, which is the protection of young children from exploitation. In these circumstances, I am satisfied that it would be contrary to the public interest for THDX to remain an Australian citizen.
I particularly note the oral and written submissions that the visa currently held, by operation of law, by THDX entitles him to permanent residency in this country and to availing himself of the conventional social security entitlements available to permanent residents. I also note the written submissions by the Respondent that THDX is fully entitled to apply for a Resident (Return) visa, which would permit him to re-enter Australia if he travels abroad. As mentioned, the Tribunal considers there are fair prospects such a visa would be granted, given the Applicant is married to an Australian citizen and has two Australian citizen children.
The Tribunal has found that the Applicant has been convicted of a serious offence under section 34(2)(b)(ii) of the Act and is satisfied that it would be contrary to the public interest for him to remain an Australian citizen. The Tribunal concludes that the preferable decision, having made those findings, is that the discretion available in section 34(2) of the Act should be exercised to revoke THDX’s citizenship. It therefore follows that the reviewable decision made by the Minister is affirmed.
DECISION
The Tribunal affirms the decision of the Minister dated 14 September 2020 to revoke the Applicant’s Australian citizenship.
I certify that the preceding 142 (one hundred and forty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris
..................[sgd]......................................................
Associate
Dated: 20 January 2022
Date of hearing:
7 December 2021
Solicitor for the Applicant:
Mr Navid Baghi
Solicitors for the Applicant:
Amity Lawyers
Counsel for the Respondent:
Mr Will Sharpe
Solicitors for the Respondent:
HWL Ebsworth Lawyers
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