TMGL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2022] AATA 1335
•24 May 2022
TMGL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 1335 (24 May 2022)
Division:GENERAL DIVISION
File Number(s): 2020/0885
Re:TMGL
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President J W Constance
Date:24 May 2022
Place:Sydney
The reviewable decision, being the decision of the Minister for Home Affairs made on 10 February 2020 to revoke the Australian citizenship of the Applicant, is affirmed.
........................[SGD]...................................
Deputy President J W ConstanceCATCHWORDS
CITIZENSHIP – application for review of decision to revoke Australian citizenship – where Applicant convicted of child abuse offences under Crimes Act 1900 (NSW) – whether contrary to the public interest for the Applicant to remain an Australian citizen – whether discretion to revoke citizenship should be exercised – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth)
CASES
McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70
Osorio and Minister for Immigration and Citizenship [2007] AATA 59
O'Sullivan v Farrer and Another (1989) 168 CLR 210
Roach v Electoral Commissioner (2007) 233 CLR 162
WBU and Minister for Immigration and Citizenship [2007] AATA 1143
ZDZG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 2000
REASONS FOR DECISION
Deputy President J W Constance
24 May 2022
INTRODUCTION
The Applicant is a citizen of the United Kingdom who migrated to Australia in 2008. He was granted Australian citizenship by conferral in 2012.
In February 2020 the Minister for Home Affairs revoked the Applicant’s Australian citizenship on the ground that he was satisfied that it would be contrary to the public interest for the Applicant to remain an Australian citizen. The Applicant has applied to this Tribunal to review the Minister’s decision.
For the reasons which follow the decision of the Minister will be affirmed.
BACKGROUND
Unless stated otherwise, the findings of fact in these reasons are based on the evidence of the Applicant.
The Applicant is 59 years old. In 2008 he arrived in Australia with his wife and daughter. The marriage ended in divorce in 2010, following which his daughter lived with him part of the time.
The Applicant's criminal history
In May 2018 the Applicant was sentenced in the District Court of New South Wales after he pleaded guilty to the following criminal offences:
·one count of produce child abuse material;
·four counts of possessing child abuse material;
·27 counts of filming a person in a private act.
The aggregate period of imprisonment imposed by the Court in respect of these offences was three years with a non-parole period of 24 months. The longest sentence imposed for an individual offence was two years.
The Applicant was released on parole and has served his sentence.
The circumstances of the offences[1]
[1] Sentencing remarks of Flannery DCJ in the District Court 11 May 2018, Exhibit J1 at 864-74.
The Sentencing Remarks of the Presiding Judge included the following:
The facts of the matter are that on 6 October 2016 police executed a search warrant at the offender’s premises. When they arrived his daughter, was there. During the search, police seized a number of hard drives. They were later examined by the police. This process involved individual officers conducting a randomised sample of images on the hard drives. From the randomised sample police classified the images or videos according to the child exploitation tracking scheme or CETS.
….
In total there were 1,205 child abuse material images identified on the five hard drives. Based on statistical analysis police estimated there were between 34,961 and 44,925 images on the five hard drives.
Sequences 2, 8, 33, 37 and 38, and sequence 1 involved the police discovering 47 videos over 27 non-consecutive days depicting the offender’s daughter engaged in a private act. The videos were captured between 23 October 2011 and 23 January 2013, when the offender’s daughter was aged between 12 and 14. The videos were captured without her consent, apparently using motion sensing technology. The videos depict her either partially or fully naked, in a common lounge area of her home walking from her bathroom to her bedroom.
The victim prepared a statement which was read to the Court on her behalf. As [redacted], who appeared for the offender, pointed out “it was impressive and harrowing” and set out the many ways in which her life has been affected by the offender’s offending.
….
The possess offences are serious having regard to the (1) number of images found on the five hard drives, (2) as the images and videos depict actual children, and (3) as the offender paid to get the material and so directly encouraged and sustained the market for such material. However, I take into account that, whilst still very serious, the vast majority of the material fell within category 1, and I agree with [Counsel] that it is relevant that although the images were purchased and kept on external hard drives, there was no encryption evident or active concealment, and the offender used his own name and credit card details to buy the material.
I am satisfied the film and produce charges are serious for the reasons the Crown gave, although I do accept the offender’s evidence on the balance of probabilities that the video files he produced were not disseminated and remained wholly within his possession.
….
I accept, that the initial recording of his daughter was made accidentally, as he had set up a movement control video camera connected to his computer to make sure tradesmen doing work at his unit were doing their job. His daughter was inadvertently captured on the video as she walked naked from the bathroom to the bedroom, and when he viewed the video, he was initially embarrassed and stopped further videoing, however he later activated the camera and captured images of his daughter as she moved from bedroom to bathroom and vice versa.
LEGISLATION
Section 34 of the Australian Citizenship Act 2007 (Cth) (the Act) provides, in part:
(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:
…
(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);
…
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:
…
(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.
…
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.
[original emphasis]
A “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 ISSUES
It is not in dispute that after he made his application for citizenship the Applicant was convicted of a “serious offence”. It is also not in dispute that, upon revocation of his citizenship, the Applicant did not become a person who is not a citizen of any country.
The issues to be decided in this application follow.
(1) Is the Tribunal satisfied that it would be “contrary to the public interest” for the Applicant to remain an Australian citizen?
(2) If so, should the Tribunal exercise the discretion to revoke the Applicant's Australian citizenship?
FURTHER EVIDENCE
Evidence of the Applicant
The Applicant provided statutory declarations made 23 October 2018, 16 February 2021 and 12 July 2021 respectively.[2] He verified the accuracy of their content when he gave evidence at the hearing.
[2] Exhibit J1 at 53, 418, 439 and 473.
In his first declaration the Applicant stated that he is sincerely remorseful for his offending and that he would never re-offend.
While he was in prison the Applicant worked long hours in the bakery and as a cleaner. He Completed the Positive Lifestyles Program which addressed the skills needed to transition back into the community as a law-abiding citizen. As soon as he was released from prison, he consulted his treating psychologist, Mr Jones, and commenced treatment through the sex offender program.
The Applicant completed his parole having complied with all requests made of him and without any breaches. He has gained permanent employment in a responsible position.
In 2019 the Applicant formed a relationship with a new partner; this relationship is continuing. He has not attempted to contact his daughter.
In January 2021 the Applicant completed group sessions of the sex offender program. He continues to attend monthly sessions. He believes he can now monitor himself and ask for assistance when needed to ensure he never offends again.
In his Statutory Declaration made 12 July 2021[3], the Applicant referred to the filming of his daughter. He said that the camera he set up accidentally filmed her. Initially he was shocked but also “intrigued by [her] carefree attitude”.[4]He always intended to delete these and other files from his computer but did not do so.
The Applicant stated, in part:
In 2012 I had builders accessing my unit to carry out repairs when I was not in attendance and I wanted to capture their movements in the common area of the unit. I set up a motion sensing camera. By accident the camera caught [the Applicant’s daughter] walking between her room and the bathroom, about four metres away. The videos were only of a few seconds each, but at times she was naked or partly naked. At first I was shocked but I was also intrigued by the carefree attitude she seemed to have. I have asked myself this many times as to why I did not delete the files, again it was a thing I always intended doing along with many other files on the computer but I would put off the job of tidying the computer till later and later never came.[5]
[3] Exhibit J1 at 473.
[4] At 477.
[5] Exhibit J1 at 477, paras. 23 and 24.
The Applicant also referred to having filmed his daughter in the common area of a holiday cabin after he had been experimenting with the recording capabilities of his camera, which he had left on when he left the cabin. He did not delete the recordings after he realised what they contained.
During cross-examination, the Applicant gave the evidence set out in the following five paragraphs.
The Applicant commenced accessing child pornography in 2011. The Applicant contacted Mr Jones, Psychologist, on the day of his arrest on the advice of his Solicitor. At the time the Applicant knew that watching the pornographic material he downloaded was a crime. He also knew at the time that the filming of his daughter was a crime. When he applied for Australian citizenship, he declared that he would obey Australian laws. At the same time, he knew he was committing criminal offences.
The offences of filming his daughter in the holiday cabin occurred over two days.
The Applicant understood that the offence of filming a person in a private act without consent includes the element that the conduct was to obtain sexual arousal. The Applicant said that “it took me back to that period of time in my youth and I was sexually aroused at the time and it took me back to that time”.[6]He agreed that this was inconsistent with his having told Ms North, the Psychologist who assessed him for the purpose of giving evidence on his behalf, that he denied experiencing any sexual arousal at the time of his offending.
[6] Transcript 13/09/2021 at 29.
The Positive Lifestyles Program was a generic course related to integration into society. It was not related to particular offending. The Applicant believes he spoke to other inmates and one of the guards in relation to the availability of a sex offender program. He was told that there was not time for him to complete this course in the five months of his sentence which remained at that time.
The Applicant missed sessions of the sex offender program he commenced after he was released. He said that this happened because of work commitments, being on holiday or illness.
Evidence of Ms C, the Applicant’s partner
Ms C provided a Statutory Declaration made 18 February 2021[7] and gave evidence at the hearing.
[7] Exhibit JT1 at 444.
Before Ms C began a personal relationship with the Applicant in October 2019, the Applicant informed her that he had been imprisoned for child pornography and that he had been seeing psychologists “to keep him on track.” He also informed Ms C that “he wasn’t interested in the pornography as such, it was more related to the innocence of nudity as a child.” [8]
[8] At 447.
Ms C has a son who was under 18 years during some of the time of her relationship with the Applicant. Her son has a good relationship with the Applicant.
Ms C believes that the Applicant is “a caring, extremely honest and an honourable person of good character.” [9]
[9] At 452.
Report of Mr Jones, Forensic Psychologist
The Applicant consulted Mr Jones the day after the Police took possession of his computer. Mr Jones provided a report dated 24 April 2018.[10]
[10] Exhibit J1 at 119.
In his report Mr Jones concluded:
[The Applicant] is in need of further psychological treatment in order to address sexual deviancy in order to minimise his risk of recidivism. I would suggest he undergo a suitable treatment program of no less than twelve (12) months in order to address his sexual deviancy and risk of recidivism.[11]
[11] Exhibit J1 at 131.
Evidence of Ms North, Forensic Psychologist
Ms North assessed the Applicant at the request of his Solicitor in July 2020. She conducted a clinical interview and psychometric assessment and considered various documents provided to her.
Ms North provided reports dated 28 July 2020[12] and 19 February 2021[13] and gave evidence at the hearing.
[12] Exhibit JT1 at 365.
[13] Exhibit JT1 at 459.
On 28 July 2020 Ms North reported, in part:
In summary, [the Applicant’s] past offending behaviours were assessed as having been triggered by poor psychosocial functioning, depression and self-esteem issues subsequent to his marriage breakdown in 2010. He subsequently began using pornography as a means of managing his negative emotions, resulting in his use of child pornography and his subsequent offending behaviours. To his credit, [the Applicant] accepted responsibility for his offences, expressed remorse for his behaviour, and has since completed a term of incarceration and parole in the community. Of particular relevance, [the Applicant] has voluntarily engaged in intensive, offence-specific treatment since his release from custody and expressed a strong motivation towards continuing his engagement in such treatment. [14]
[14] Exhibit J1 at 366-367.
Ms North reported further that she assessed the Applicant as posing a low risk for sexual recidivism and that he had developed insight resulting from the treatment he had received.
Evidence of Dr Eagle, Consultant Forensic Psychologist
Dr Eagle assessed the Applicant in November 2020 and provided a report dated 4 December 2020[15]. She gave evidence at the hearing.
[15] Exhibit R1 at 845.
Dr Eagle reported that the Applicant “falls within a category of offenders on the Static 99R and Stable 2007 at a below average risk of sexual reoffending. This includes all sexual recidivism, including contact offending. It is noted that child pornography offenders are, as a group, at a relatively low risk of engaging in contact sexual offending.[16]
[16] Exhibit J1 at 858.
The Applicant told Dr Eagle that viewing images of young boys and girls took him back to a happy feeling of his adolescence. When asked by Dr Eagle, he did not provide an explanation of why he did not delete the images. Dr Eagle reported also that the Applicant “repeatedly offered a relatively superficial explanation for his offending as a way of returning to his childhood when he was happier and felt free. He tended to minimise the sexual component.”[17]When she gave evidence, Dr Eagle expressed the opinion that the offending in relation to the Applicant’s daughter was most significant in that it was a voyeuristic behaviour, which is considered deviant sexual behaviour.[18]
[17] Exhibit J1 at 853.
[18] Transcript 14/09/21 at 73.
Reports of Ms Pratley, Forensic and Clinical Psychologist
Ms Pratley co-facilitated a sex offender treatment program undertaken by the Applicant commencing in December 2018. She provided reports dated 24 July 2020[19] and 8 September 2021.[20]
[19] Exhibit J1 at 353.
[20] Exhibit A1.
Prior to attending the group sessions, the Applicant attended four individual treatment sessions. The first of these sessions was held in October 2018.
Ms Pratley reported that the Applicant engaged well in treatment although he missed a number of sessions, primarily owing to work commitments.
In September 2021 Ms Pratley reported that the Applicant had graduated successfully from the program in January 2021 and had attended six maintenance sessions since graduation. In the opinion of Ms Pratley at the time the report was prepared, the Applicant did not have active treatment needs.
THE APPLICANT’S CONTENTIONS CONCERNING THE PUBLIC INTEREST
Along with several other Federal Court judgements and decisions of this Tribunal, Counsel for the Applicant referred me to the following extract from the judgement of Gleeson CJ in Roach v Electoral Commissioner[21]:
The preamble to the Australian Citizenship Act (Cth) declares that Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations. The reference to the reciprocity of rights and obligations is important in the context of membership of the community.
[21] (2007) 233 CLR 162 at [12].
Counsel submitted that, derived from the Preamble, I should consider “the extent to which the applicant appreciates and acts, has acted and may be expected to act consistently with the obligations of which his Honour spoke.”[22]
[22] Applicant’s Amended Statement of Facts, Issues and Contentions dated 20 August 2021 at para.30; exhibit J1 at 912.
Counsel argued also that the Applicant’s character is a relevant, but not decisive, consideration as “good character” is a criterion for the granting of citizenship.[23]
[23] Applicant’s Amended Statement of Facts, Issues and Contentions dated 20 August 2021 at para.31; exhibit J1 at 912.
Counsel agreed with the submissions of the Respondent that the following factors, referred to by the Tribunal in ZDZG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[24], are also relevant considerations in this application:
·“the severity and seriousness of an Applicant’s offence(s)”;
·“if the Applicant’s offences had been known as the time of his Application for Australian citizenship, whether his application would have been refused for failing the ‘good character’ test requirement in section 21(2) (h) of the Citizenship Act”;
·“whether the Applicant has re-established his character”.
[24] [2020] AATA 2000 at [14].
In Osorio and Minister for Immigration and Citizenship[25] the Tribunal considered the following factors relevant to determining whether an applicant has re-established his/her good character:
a) the nature of the applicant’s offending;
(b) the applicant’s conduct during his period of incarceration and subsequent release;
(c) the applicant’s employment record and vocational training;
(d) whether the applicant failed to participate in any sex offender treatment programs; and
(e) since the applicant’s release from prison, whether the applicant has undertaken any psychological or other professional counselling regarding his offending behaviour or assessments regarding the risk of his reoffending. [26]
[25] [2007] AATA 59 at [36]-[39].
[26] This summary of the principles referred to is reproduced from the submissions of the Respondent in the Respondent’s Statement of Facts, Issues and Contentions dated 13 August 2020 at para. 26; exhibit J1 at 893.
Counsel for the Applicant supported the Respondent’s submission in relation to the relevance of these principles in this application. In addition, Counsel argued that the Applicant’s “chances of redemption” should also be considered.
DISCUSSION
Issue 1: Would it be “contrary to the public interest” for the Applicant to remain an Australian citizen?
The parties are in substantial agreement as to the applicable principles in this matter and I agree that the factors raised by Counsel for the Applicant are relevant. However, I do not agree with the Applicant’s submissions as to the application of these principles in his case.
In O’Sullivan v Farrer and Another[27] the High Court considered the meaning of the words “in the public interest” in legislation other than that before me in this application.
[27] (1989) 168 CLR 210 at 216.
Mason CJ, Brennan, Dawson and Gaudron JJ said, in part:
…… the Act provides no positive indication of the considerations by reference to which a decision is to be made as to whether the grant of an application would or would not be in the public interest. Indeed, the expression “in the public interest”, when used in a statute, classically imports a discretionary value judgement 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 … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view”.
In McKinnon v Secretary, Department of Treasury[28] Tamberlin J cited the above passage from the High Court’s judgement. His Honour referred to “public interest” as follows:
The public interest is not one homogenous undivided concept. It will often be multi-faceted and the decision-maker will have to consider and evaluate the relative weight of these facets before reaching a final conclusion as to where the public interest resides. The ultimate evaluation of the public interest will involve a determination of what are the relevant facets of the public interest that are competing and the comparative importance that ought to be given to them so that ‘the public interest’ can be ascertained and served. In some circumstances, one or more considerations will be of such overriding significance that they will prevail over all others. In other circumstances, the competing considerations will be more finely balanced so that the outcome is not so clearly predictable. For example, in some contexts, interests such as public health, national security, anti-terrorism, defence or international obligations may be of overriding significance when compared with other considerations.
[28] (2005) 145 FCR 70 at 75-76.
Based on the evidence of the Applicant, Ms C, Ms North and Dr Eagle I am satisfied that the Applicant is remorseful of his offending and that the risk of his re-offending is low. On this basis I turn to consider the relevant facets of the public interest.
The public interest disclosed by the context of the Australian Citizenship Act 2007
The Preamble to the Australian Citizenship Act reads:
The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:
(a)by pledging loyalty to Australia and its people; and
(b)by sharing their democratic beliefs; and
(c)by respecting their rights and liberties; and
(d)by upholding and obeying the laws of Australia.
The Preamble makes it clear that the privilege of Australian citizenship includes the obligations to respect the rights and liberties of Australians and to uphold and obey the laws of Australia. Parliament having enacted legislation to preserve these rights shows that it is in the public interest that these obligations are observed and that Australian laws are upheld and obeyed.
I am satisfied that there is a public interest in the preservation and promotion of the value of Australian citizenship and the privileges it endows upon Australian citizens.
In committing the offences against his daughter, the Applicant breached the trust placed in him by her and her mother. At the time his daughter was in his care it was his responsibility as a father to protect her, not to repeatedly invade her privacy.
In acting as he did towards his daughter and in accessing the images of children, he showed no respect for the rights of his daughter or the children and no respect for the laws of Australia. Most Australians would regard his conduct as abhorrent and contrary to the values of the Australian community. As Her Honour Judge Flannery accepted when sentencing the Applicant, his daughter and the other children were “the real victims” of his crimes.[29]
[29] Exhibit J1 at 868.
The public interest in a person who has been granted Australian citizenship being of good character
I respectfully agree with and adopt what was said by Deputy President Hotop in this Tribunal in WBU and Minister for Immigration and Citizenship[30]:
It is axiomatic that it is in the public interest that a person, who is granted Australian citizenship under s 13(1) of the [Australian Citizenship] Act, be a person of good character at the time of the grant of Australian citizenship. Likewise, in the Tribunal’s opinion, 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:
·had, unbeknown to the respondent and to the Department, engaged in criminal conduct incompatible with good character prior to the grant of Australian citizenship; and
·has not subsequently become a person of good character.
[30] [2007] AATA 1143 at para.37.
The Applicant applied for Australian citizenship in March 2012. He was granted this privilege in August 2012. His offending in relation to his daughter and the other children occurred both before and after his application for, and conferral of, citizenship. The Applicant concedes that it was “more than extremely unlikely”[31] that he would have been granted citizenship had he disclosed the nature and extent of his criminal activity when he made his application. I am satisfied that this concession is correct and that neither the Minister nor the Department was aware of this at the time citizenship was conferred.
[31] Transcript 15/09/21 at 93.
Bearing in mind that character is determined by the enduring qualities of a person, I am not satisfied that the Applicant has re-established the good character which he apparently possessed before his offending began.
The Applicant did not seek professional help until he became aware that the Police were aware of his activities. He was released from prison in October 2018 and was subject to supervision on parole until October 2019. He did not complete the sex offender program until January 2021.
The Applicant is to be given credit for his completing the program, however it is only 16 months since this occurred. Also in the Applicant’s favour is his good conduct in prison and since his release and his obtaining steady employment. However, I am not satisfied that sufficient time has elapsed for the effectiveness of the program to be determined and the Applicant’s resolve to not reoffend to be tested in circumstances of the Applicant again experiencing the stressors which he now believes caused him to offend.
I have taken into account the opinions of Ms C as to the character of the Applicant. However I have given her evidence less weight by reason of her close and relatively short relationship with the Applicant.
The public interest in the protection of children
It is also a matter of public interest that children are protected from sexual predators. Children are entitled to grow up in an environment free from activities such as those engaged by the Applicant.
While I am satisfied that the risk of the Applicant re-offending is low, the evidence establishes that a risk of re-offending, and therefore of harm to children at the hands of those who are encouraged to produce child pornography for financial gain, remains.
It is in the public interest that the risk of such conduct is reduced to an absolute minimum. Whether the Applicant should be permitted to continue to reside in Australia is not a matter for determination in this application, however the revocation of his citizenship is a prerequisite to such a decision.
The public interest in ensuring the value of Australian citizenship
There is no evidence in this application to suggest that the Applicant applied for citizenship to avoid the risk of his visa being cancelled if his conduct was to come to the attention of the Police. However, there remains a public interest in preventing the perception among those who engage in criminal conduct that a grant of citizenship will ensure that they cannot be deported if their conduct later becomes the subject of criminal proceedings. The cancellation of citizenship in such circumstances strengthens the understanding in the Australian community that the grant of citizenship is a privilege which is granted in the expectation that, at the time it is granted, the recipient meets the expectations that accompany it.
Consideration
For the reasons stated above, I am satisfied that it would be contrary to the public interest for the Applicant to remain an Australian citizen.
Issue 2: Should the discretion to revoke the Applicant's Australian citizenship be exercised?
When considering the same issue, in ZDZG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[32], the Tribunal said, in part:
[142] …… the considerations to which the Tribunal should have regard include the advantages to Australian society on the one hand, and the disadvantages or hardship to the applicant and to other persons on the other hand, which would, or would be likely to, result from depriving the applicant of his Australian citizenship.
[143] Consistent with earlier authority, it is appropriate to have regard to all of the evidence in relation to the public interest test in s 34(2)(c) of the Citizenship Act in determining whether or not the relevant discretion ought to be exercised.
[32] [2020] AATA 2000.
As I set out in relation to the first issue for consideration, a decision to exercise the discretion to revoke the Applicant's citizenship does not mean that he cannot remain in Australia. He will be able to continue to live and work in Australia as the holder of an ex-citizen visa. For this reason, I give only limited weight to the effect such a decision may have on the Applicant’s relationship with Ms C and on the Applicant’s employment and contribution to the Australian community.
It was further argued that the Applicant has two elderly parents living in the United Kingdom and that if he chooses to visit them, he will be unable to return to Australia under his ex-citizen visa. However, the Applicant could apply for another visa to return to Australia if he leaves – the choice is his. I give this consideration minimal weight.
Counsel for the Applicant argued that “in light of his progress towards re-establishing his character and the sincerity with which he has approached his rehabilitation, and the care with which he has addressed and complied with his responsibility under the Sexual Offenders Register, the discretion under section 34 should be exercised in his favour.” [33]While these are considerations which weigh in favour of exercising the discretion in the Applicant’s favour, I have decided that the contrary factors should be given greater weight.
[33] Transcript 15/09/21 at 100-101.
The crimes committed by the Applicant are very serious and were committed against children. As the Sentencing Judge accepted, his crimes against his daughter involved “an egregious breach of trust” [34]. As the Crown submitted to the Court, “it is a crime of extraordinary callousness and depravity.”[35] The Applicant’s conduct placed his daughter in the position of giving evidence against him before a Court. This must have been an incredibly difficult experience for her.
[34] Exhibit J1 at 236.
[35] Exhibit J1 at 235.
The Applicant has lived in Australia for 14 years. His offending behaviour took place over five of those years, during which he applied for and was granted citizenship. In addition, he spent two of those 14 years in prison.
Taking into account the matters to which I have referred and the strength of the considerations in favour of the conclusion that it would be against the public interest for the Applicant to remain an Australian citizen, I have decided that the discretion should be exercised in favour of revoking the Applicant's Australian citizenship.
CONCLUSION
The reviewable decision, being the decision of the Minister for Home Affairs made on 10 February 2020 to revoke the Australian citizenship of the Applicant, will be affirmed.
I certify that the preceding 79 (seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance
.................................[SGD]................................
Associate
Dated: 24 May 2022
Date(s) of hearing: 13, 14 & 15 September 2021 Counsel for the Applicant: Mr L Karp Solicitors for the Applicant: Ms K Hunter, Hunter Flood Lawyers Counsel for the Respondent: Mr T Liu Solicitors for the Respondent: Mr C O'Sullivan, Australian Government Solicitor
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