TRHL v Minister for Immigration and Border Protection - [2015] AATA 803

TRHL and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 803 (15 October 2015)

Division

GENERAL DIVISION

File Number(s)

2015/0382

Re

TRHL

APPLICANT

And

Minister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal
Senior Member CR Walsh

Date 15 October 2015

Place Perth
The Tribunal affirms the decision under review.
....(Sgd) CR Walsh....................................................................
Senior Member CR Walsh
CATCHWORDS
CITIZENSHIP – REVOCATION – Applicant, an Australian citizen, extradited to the United Kingdom and convicted of 13 “serious (child sex) offences” and sentenced to 11 years imprisonment – Applicant’s convictions and sentence upheld on appeal - Applicant’s Australian citizenship revoked by the Minister – whether it would be “contrary to the public interest” for the Applicant to remain an Australian citizen –decision under review affirmed
LEGISLATION
Australian Citizenship Act 1948
Australian Citizenship Act 2007 – s 21(1) – s 21(2) – s 21(3) – s 21(4) – s 21(5) – s 21(6) – s 21(7) – s 21(8) – s 26 – s 27 - s 34(2)(b)(ii) – s 34(2)(c) – s 34(5)
International Transfer of Prisoners Act 1997
Migration Act 1958
Sexual Offenders Monitoring Act 2005 (Vic)
CASES
Director of Public Prosecutions v Smith [1991] 1 VR 63
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Hogan v Hinch [2011] 243 CLR 506
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
McKinnon v Secretary, Department of Treasury [2005] FCAFC 142
Minister for Immigration and Ethnic Affairs v Baker [1997] FCA 105
Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135
Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575
Osorio v Minister for Immigration and Citizenship [2007] AATA 59
Re Prasad v Minister Assisting the Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 292
Saffron v Federal Commissioner of Taxation (No 2) (1991) 30 FCR 578; 102 ALR 19
Shakure v Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 63
Taradel v Minister for Immigration and Multicultural Affairs [2005] AATA 1255
WBU v Minister for Immigration and Citizenship (2007) 45 AAR 225
SECONDARY MATERIALS
Australian Citizenship Instructions – 10.5.2
REASONS FOR DECISION
Senior Member CR Walsh
15 October 2015
INTRODUCTION

The Applicant seeks a review of the Minister’s decision, dated 22 December 2014, to revoke the Applicant’s Australian citizenship under s 34(2) of the Australian Citizenship Act 2007 (Citizenship Act). The reason for the Minister’s decision was that many years after applying for Australian citizenship, the Applicant was convicted of “serious offences” (being 13 child sex offences), within the meaning of s 34(5) of the Citizenship Act, and the Minister was satisfied that it would be contrary to the “public interest” for the Applicant to remain an Australian citizen.
The primary motivation behind the Applicant making this application is that if the Applicant is permitted to retain his Australian citizenship he will be entitled to apply to be transferred from the United Kingdom prison in which he is presently incarcerated to an Australian prison under the International Transfer of Prisoners Act 1997. If the Applicant is successful in this, his wife (who presently lives in Western Australia) will be able to be close to the Applicant and visit him on a regular basis for the remainder of his 11 year sentence (presently being about 7 ½ years). As noted by the Minister, in his “Statement of reasons for revocation of Australian citizenship under the Australian Citizenship Act 2007”, dated 22 December 2014 (Minister’s Statement of Reasons):
27.[The Applicant’s wife] is unable to travel to the United Kingdom to visit [the Applicant], due to financial reasons and her inability to cope with the length of the flight, and can only contact him by telephone and email. [The Applicant] cannot reply to his wife through email, due to restrictions at the prison.
28.[The Applicant] has said that that the most important thing for him is to receive visits from his wife. I note that if his Australian citizenship is revoked, he and his wife would not be able to see each other for the remaining term of his imprisonment at the very least (another 8 years), as she would not be able to travel and he claims this would “finish” him.
29.If [the Applicant] was permitted to retain his Australian citizenship and was consequently allowed to serve his sentence in Australia under the International Transfer of Prisoners Act 1997, his wife would be able to visit him on a regular basis.
………
31.However, I note that it is open for [the Applicant’s wife] to relocate to the United Kingdom to be closer to [the Applicant], as she retained her British citizenship when she acquired her Australian citizenship. However, should she take this course of action, she would need to make arrangements to move her belongings to the United Kingdom, establish a life for herself and integrate into an unfamiliar community either for the duration of [the Applicant’s] imprisonment or permanently.
FACTUAL BACKGROUND & EVIDENCE
The Applicant is a citizen of the United Kingdom who migrated to Australia in 1974 as a permanent resident (under the Migration Act 1958 (Migration Act)), with his wife (also a citizen of the United Kingdom), to work on the coal fields around Lithgow in New South Wales.
The Applicant and his wife lived in Lithgow until 1989. There, the Applicant worked as a manager for a company called “Coalex” and his wife worked initially for a local solicitor and later for mines rescue.
In 1989, the Applicant and his wife moved to Hervey Bay in Queensland to retire because the Applicant could no longer work as a result of a severe, workplace related, back injuries sustained whilst working on the coal fields in Lithgow.
In the mid-1990s, the Applicant and his wife moved to Perth, Western Australia, to be near the Applicant’s sister and husband.
On 12 March 1996, the Applicant applied for Australian citizenship.
The Applicant was granted Australian citizenship on 30 April 1996. The Applicant’s wife also became an Australian citizen in 1996. Both the Applicant and his wife retained their British citizenship after becoming Australian citizens.
The Applicant subsequently had an operation to put plates in his back. According to the Applicant, following his back operation he was in chronic pain and could not stand for long periods of time and he remained house bound except to walk the dogs daily. The Applicant’s wife worked for the Department of Transport until 2010, when she retired.
In 2011, the Applicant was extradited from Western Australia to the United Kingdom to face trial in the Crown Court at Kingston-Upon-Thames for charges relating to child sex offences alleged to have been committed by the Applicant in the United Kingdom between 1959 and 1973, before the Applicant and his wife migrated to Australia (in 1974) and became Australian citizens (in 1996).
At the beginning of 2012, the Applicant’s wife flew to the United Kingdom to support her husband throughout his criminal trial.
On 26 October 2012, the Applicant received a sentence of imprisonment for 11 years for the following 13 convictions:
·     Two counts of rape;
·     Two counts of attempted rape;
·     Six counts of indecent assault;
·     One count of indecency with a child; and
·     Two counts of indecent assault.
In her “Sentencing Remarks”, Judge Susan Tapping, of the Crown Court at Kingston-Upon-Thames, stated:
You have been convicted by the jury of 13 serious offences. For more than 20 years you have sexually abused children in your own family. You began offending when you were in your mid teenage years, perhaps 16 or 15 at the earliest.
There were two nieces who lived a safe distance from you, but, as can so often happen, they spent part of their school summer holidays at their grandparents home in Wales. You still lived at home with your parents and continued after your mother was widowed. Your older sisters loved and trusted you, so the thought that their daughters were at any risk in the house never entered their minds and how wrong they were.
When your eldest niece was eight or nine years old you began to indecently assault her, ending when she was around 12. During that period you attempted to rape her on one occasion, failing only because she was so young.
One niece was not enough for you, because you also sexually abused her cousin, who is only two years younger. She came alone to Wales for summer holidays, but at other times was with her cousin, even sleeping in the same bedroom. That did not deter you, because you crept into the bedroom and assaulted one and then the other. This second victim was around the age of 10 when it started and again you tried to rape her. Again you failed, perhaps again because she was so young. Over a period of years you continued to indecently assault her in ways that are seared into her memory over 50 years later.
You were so sure that these two young girls would not complain, even though there were always adults in the house downstairs in the evening. You made sure that they would keep your secret by making them feel that no one would believe their complaints and even by threatening one that she would be taken away from her mother and sent to a naught girl’s school, never to come home again. This was an especially powerful threat to a little girl who was an only child and very close to her mother.
Maybe your first marriage brought your offending to a temporary halt, because you lived away from your mother’s house for a while and the girls themselves grew older.
As it was, very sadly, your next victim was to be the daughter from this first failed marriage. She was adopted by yet another older sister of yours and her husband and they lived in a house with your mother. This child visited your home regularly when you moved out again after your second marriage. This marriage has been childless and your wife treated the little girl very well indeed, being like a mother to her.
You, however, chose to take advantage of the situation again. From the time that she was still at junior school, so below 11 years of age, you forced her to masturbate you. Modern understanding would see this as grooming the child so that from the age of 13 for about two years you raped her whenever you got the opportunity.
This is utterly depraved behaviour against your own child. As she got older she was able gradually to stop coming to your house so that she was no longer your victim. She too was told to keep things secret and although you did not threaten her, in effect you bribed her with gifts to keep her silent.
Your last offence was in December 1973 when you were now 39 years old and on the day your mother’s funeral took place. Living a few doors down in the same street was your youngest niece. The family gathered at the house for the wake. You may well have been very upset, but unbelievably you took this opportunity to indecently assault this 12 year old. It is the least serious in its facts, but that is only because you took the chance to grope her breast area when outside the house, seeing off guests with perhaps other people around.
Two months later you immigrated to Australia where you have lived the second half of your life. You left behind confused and damaged adults and children who grew up with the shadow of what you had done to them, haunting them all their lives.
Gradually over time first two then three of them came to realize they had not been your lone victims. Your daughter kept silent except to her immediate family until her cousins had gone to the police in 2008. It took three years for the legal technicalities of the extradition process to be completed and then you were arrested on an extradition warrant in the summer of 2011. You did not contest that process and you arrived back in the United Kingdom by the end of September 2011 with this trial beginning a year later.
I have read four victim impact statements taken from your victims. I am not surprised that all of them have difficulty in expressing the life-long impact that your sexual abuse of them has had on them. I watched four women of total integrity giving evidence before this jury. Under pressure to try and recall dates and details that had blurred in their minds not once did any of them try and make things sound better for them by over embellishing their accounts. They found the experience of giving evidence embarrassing and intrusive. However, they were compelling witnesses telling the distressing truth and I am sure that that is why the jury rejected your evidence that they were liars who had colluded together to make up a fabricated account against you. This was nothing more than the wriggling of a cowardly man, unable to accept that the past had caught up with him.
I know from the evidence that the four victims, all here in court today, do not know the full details of what occurred to each other. Therefore, I have not detailed what each of them suffered in these remarks to save them from further public embarrassment. That does not detract from the very serious view any court should take of these offences.
……..You are the one who must now face your day of reckoning. Maybe you thought that you were safe from justice halfway around the world, but you were not.
Mr Kimsey has this morning urged a number of matters on me on your behalf. You are now 78 years of age and have some health problems that require daily medication. Since you have not offended in Australia you have rehabilitated yourself and the public no longer need protection from you. There has been a long delay and that passage of time means that any sentence will be hard. Your wife of nearly 50 years gave evidence in the trial and has written me a letter on your behalf. In a very different way she is your final victim. Contact with you will be more difficult in these circumstances, because she must return to Australia and lead a lonely existence, a very different life from what she was expecting a little over a year ago. The victims do not blame her at all. Indeed, their affection for her was among the factors that led them to be silent for so long.
………..
……….The most serious counts are those of rape and they are seriously aggravated by the offences committed against three other children over such a long period of time. Offences that began as a teenager and ended at the age of nearly 40.
………
………Your conduct towards your daughter was utterly shameful with life-long consequences for her. Her life was damaged and changed forever. Your repeated rapes of her mean that the appropriate sentencing bracket is the highest in the Guidelines.
Taking all your offending into account, but tempered by totality, the starting point for sentence in this case is one of 16 years imprisonment. Giving effect to all your mitigation there must be a reduction in this sentence……..the sentence is reduced to one of 11 years on each count concurrent…….
You will be eligible [for] (sic) release at the halfway point of this sentence and there is now no time to take into account on remand. As a matter of administration you will now register for life on the Sex Offenders’ Register.
The Applicant appealed his conviction and sentence to the Court of Appeal, Criminal Division (Treacy LJ, Hickinbottom and Nicol JJ) on the basis that the delay in his case led to serious prejudice being caused to him with the result that a fair trial could not and did not take place. On 10 September 2013, the Court of Appeal dismissed the Applicant’s appeal against his conviction and sentence: Regina v R.D. [2013] EWCA Crim 1592. In the Court of Appeal’s reasons for judgment, Lord Justice Treacy stated:
10.The appellant was a man of good character, apart from these matters alleged against him and there is no suggestion of any improper activity of any sort carried out by him after the end of 1973.
On 3 October 2013, the Applicant, through his solicitors, lodged an application to be transferred from HMP Stafford prison in the United Kingdom to an Australian prison.
On 31 October 2013, the International Crime Cooperation Division of the Attorney-General’s Department notified the Department of Immigration and Border Protection (Department) of the transfer application and sought advice as to whether the Applicant is an Australian citizen or permitted to travel to, enter and remain in Australia indefinitely.
On 27 June 2014, the Department wrote to the Applicant notifying him of the possible revocation of his Australian citizenship and providing him with an opportunity to provide reasons as to why his citizenship should not be revoked. The Applicant responded on 4 July 2014.
On 16 October 2014, whilst in prison at HMP Stafford in the United Kingdom, the Applicant underwent a “Risk Matrix 2000: Static Risk Assessment (Risk of future sexual offending and non-sexual violence for sexual offenders)” (Risk Matrix 2000 Assessment), which assessment was conducted by the Ministry of Justice, National Offender Management Service. The outcome of this assessment was that the Applicant was considered as “low risk” of reconviction for a sexual crime, “using RM2000/s”, and as “low risk” of reconviction for a nonsexual violent crime, “using RM2000/v”. The report explains how “RM2000/s” and “RM2000/v” works and states that “RM2000 does not assess risk of harm for future offending”: see also paragraph 21 below. Because the Applicant was assessed as being as “low risk” of reconviction for sexual offences, he is not required to attend any “specific treatment programme” to “address his sexual offending”.
On 22 December 2014, the Minister revoked the Applicant’s Australian citizenship (Revocation Decision). In the Minister’s Statement of Reasons, the Minister reached the following conclusion:
33.I have balanced the interests of the Australian community against the hardship likely to be caused to [the Applicant] and his wife, should hid Australian citizenship be revoked. I note the court’s observation that [the Applicant] has not offended in Australia, that he has rehabilitated himself and his risk of reoffending is low. I have considered [the Applicant’s] old age, his ties to Australia, and the hardship that will flow to him and his wife if they remain separated for at least the remainder of his incarceration in the United Kingdom.
34.However, [the Applicant] would not have been granted Australian citizenship in 1996, had he been convicted of, or had the department known about, his offending behaviour at the time. [The Applicant] has a serious criminal history involving multiple sexual offences against children of his own family, for which he has indicated no remorse. Whilst Judge Tapping stated that the public no longer needed protection from him, I have concluded that id he reoffended in a similar manner, it would result in grave harm to a member of the Australian community. This is an unacceptable risk when weighed against the countervailing considerations above.
I am therefore satisfied it would be contrary to the public interest for [the Applicant] to remain an Australian citizen. Therefore, I have decided to revoke [the Applicant’s] Australian citizenship.
The Minister’s Statement of Reasons also states (at [16]):
I also note that [the Applicant] would not have been granted Australian citizenship in 1996 on the basis of not being of good character, had [the Applicant] been convicted of the offences, or had the department known of his offending behaviour at the time.
On 23 January 2015, the Applicant applied to the Tribunal for a review of the Revocation Decision. The Applicant provided a letter, dated 22 January 2015, in support of his application, stating:
Although I was convicted of the offences detailed in the “Statement of reasons for revocation of Australian citizenship under the Australian Citizenship Act 2007”, I wish it to be known that I protested my innocence of the charges from the outset and will continue to do so. I appreciate, however, that you can only work with the decision arrived at by the English court, but I ask you to take into consideration that in cases of alleged sexual abuse under English law, there is no requirement to corroborate evidence, a simple accusation therefore can be enough information for a jury to arrive at a guilty verdict.
In paragraph 18 of the “Statement of Reasons for revocation of Australian citizenship”, the Minister for Immigration and Border Protection states that he must consider the harm that would flow to members of the Australian community should I re-offend adding considerable weight their consideration that it would be contrary to the public interest for me to continue as an Australian citizen.
The Minister however, during his deliberations, did not have the full information. The psychology department of HMP Stafford have made an assessment of my risk level using an assessment tool called Risk Matrix 2000. This assessment tool determines risk by asking simple questions and comparing the answers with historic facts. My assessment established that I was a low risk and as such have no offending courses to complete in prison. This information could have supported the statements made in the ‘Mitigation factors and risk of re-offending’ paragraph 22 where Judge Tapping stated in [her] summary of that the public no longer needed protection from me. May I respectfully suggest therefore, that an opinion from one professional, based upon a wealth of knowledge and experience, together with an opinion from another professional source based upon historical facts, would outweigh the opinion included in the last sentence of paragraph 22 stating “I also have placed weight on the grave harm that could flow to a member of the Australian community should [the Applicant] re-offend.
Finally I refer to paragraph 30 in the section headed ‘[the Applicant’s Wife]’. The court stated that, in a very different way ([the Applicant’s] Wife) is your final victim. She became an innocent victim when the allegations were made against me. She has become a victim again now that my Australian Citizenship has been revoked. My wife and I have been married for 50 years. Our love has grown over the years which can be seen by the fact that throughout this recent period she has been my rock. Please understand that I am not apportioning blame here when I say that if my appeal fails she will again be the innocent victim because as much as I want us to be together again I would not ask her to leave the home she has made for us over the years. Nor would I want her to leave her friends and her beloved Australia, but I fear for her health that she would.
In conclusion I would ask you to consider that even if I could accept responsibility for the crime which I was accused, as we progress through life we change as individuals. We have different aspirations, different needs and different standards. For more than 40 years now both my wife and I have been model citizens. I haven’t had so much as a parking ticket in all my years in Australia. Please give my appeal to reinstate my Australian Citizenship your most earnest consideration. [Emphasis added]
ANALYSIS

Section 34 of the Citizenship Act, titled “Revocation by Minister – offences or fraud”, states:
(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;
………….
(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. [Emphasis added]
The Minister’s power in s 34(2) of the Citizenship Act to revoke a person’s Australian citizenship is an extraordinary power which has historically been used sparingly. Each case must be decided on its own merits.
It is common ground that the Applicant has been convicted of “serious offences” within the meaning of s 34(5) of the Citizenship Act and for the purposes of s 34(2) of the Citizenship Act.
Consequently, the discretion to revoke the Applicant’s citizenship is enlivened if “the Minister is satisfied that it would be contrary to the public interest for the [Applicant] to remain an Australian citizen”.
The Applicant’s position is that the discretion in s 34(2) of the Citizenship Act is not enlivened and, even if it were enlivened, the Applicant and his wife’s circumstances weigh strongly against the discretion being exercised. The Minister takes the opposite view.
Meaning of “public interest”
The phrase “public interest” is not defined in the Citizenship Act.
In the High Court’s decision in Hogan v Hinch [2011] 243 CLR 506, French CJ stated (at [31]) that when used in a statute, the expression “public interest” “derives its meaning from ‘the subject matter and the scope and purpose’ of the enactment in which it appears” and that the Tribunal “is not free to apply idiosyncratic notions of the public interest”: see also the joint reasons for judgment of Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.[1]
[1] In Hogan v Hinch, the High Court was considering the meaning of the expression “public interest” in the context of the Sexual Offenders Monitoring Act 2005 (Vic).
Broadly, the purposes of the Citizenship Act are:
· to automatically confer Australian citizenship on certain categories of person: Division 1 of Part 2 of the Citizenship Act;
· to enable certain categories of person to apply to the Minister to become Australian citizens: Division 2 of Part 2 of the Citizenship Act; and
· to provide that certain persons are to cease being Australian citizens in certain circumstances: Division 3 of Part 2 of the Citizenship Act.
One category of person who can apply to become an Australian citizen, by conferral, under Division 2 of Part 2 of the Citizenship, are persons who are not born in Australia and who do not have any parents who are Australian citizens. In summary, for such a person to become an Australian citizen, the following must occur:
· the person must apply to the Minister to become an Australian citizen under s 21(1) of the Citizenship Act;
· the Minister must be satisfied that the person meets the eligibility criteria in s 21(2) to (8) of the Citizenship Act, including (with the exception of persons aged under 18 and persons that are stateless) that the person is of “good character at the time of the Minister’s decision on the application”: see s 21(2)(h), s 21(3)(f), s 21(4)(f), s 21(6)(d) and s 21(7)(d) of the Citizenship Act;
· the Minister must, pursuant to s 24(1) of the Citizenship Act, by writing, approve or refuse to approve the person’s citizenship application; and
· the person must make the pledge of commitment: see s 26 and s 27 of the Citizenship Act.
In Director of Public Prosecutions v Smith [1991] 1 VR 63, the Supreme Court of Victoria defined the expression “public interest” at [75] as follows:
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 wellbeing of its members. The interest is therefore the interests of the public as distinct from the interest of an individual or individuals: Sinclair v Mining Warden at Maryborough. [Emphasis added]
This definition was followed by the Tribunal in Re Prasad v Minister Assisting the Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 292 and by the Federal Court in McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70: see also Taradel v Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1255.
In Re Prasad, Deputy President Thompson noted the following in relation to the scheme of the Citizenship Act and the Migration Act:
39.……..the scheme provided by the [Citizenship] Act and the Migration Act which normally requires an immigrant who wishes to become an Australian citizen to first obtain permanent resident status under the Migration Act, then to become a permanent resident for two years and only after that to be eligible for citizenship. Together the two Acts are designed to ensure, so far as is possible, that only persons of good character with an adequate knowledge of the responsibilities and privileges of Australian citizenship are granted citizenship. It is of paramount importance, therefore, that information relevant to the character of a person applying for citizenship which is provided to the respondent is true and given in a manner which is not likely to impede the proper assessment of that person’s character. [Emphasis added]
In McKinnon, Tamberlin J made the following comments (at pp 75 and 76) in relation to the meaning of the expression “public interest”:
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…..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.
………
His Honour also referred to the statement by Mason CJ, Brennan, Dawson and Gaudron JJ in O’Sullivan v Farrer (1989) 168 CLR 210 at 216 that:
…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…..
The abovementioned cases were subsequently followed by the Tribunal in the context of deprivation of Australian citizenship under the Australian Citizenship Act 1948, the predecessor to the Citizenship Act, in Osorio v Minister for Immigration and Citizenship [2007] AATA 59 and WBU v Minister for Immigration and Citizenship (2007) 45 AAR 225.
Both Osorio and WBU involved the discovery of historical sexual offences against lineal relatives (and minors), following the grant of Australian citizenship, to the applicants. In each case, the Tribunal found that the principal advantage to the Australian society, which would result from depriving the applicants of Australian citizenship, is that the status of Australian citizenship would be removed from persons:
·     whose characters the Department were, by reason of lack of knowledge of their historical offences, unable to properly assess before Australian citizenship was granted;
·     who might not have been granted Australian citizenship at that time, had the Department been aware of the commission of those offences; and
·     who were found to not yet have re-established their “good character” and whose continuing to be Australian citizens would accordingly be contrary to the “public interest”.
In Osorio and WBU, the Tribunal also found that depriving the applicants of their Australian citizenship may deter other applicants for Australian citizenship from committing “serious offences” and, in the case of persons who have committed “serious offences” for which they have not yet been charged, may deter such persons from applying for Australian citizenship.
The Minister contends that there are clear similarities between the Applicant’s case and those of the applicants in Osorio and WBU and that the Tribunal’s findings in Osorio and WBU are relevant in assessing whether or not it would not be “contrary to the public interest” for the Applicant to remain an Australian citizen. The Minister also contends that in a case where an assessment of what is in the “public interest’ is required, one factor which should be taken into account by the Tribunal is the desirability of consistency in decision-making and the principle of comity. Consequently, according to the Minister, in assessing whether it is contrary to the “public interest” that the Applicant should remain an Australian citizen, the Tribunal should have regard to the following factors:
· if the Applicant’s offences had been known at the time of his application for Australian citizenship his application would have been refused for failing the “good character” requirement in s 21(2)(h) of the Citizenship Act;
· the extremely critical comments of the sentencing Judge in relation to the Applicant’s character and his complete lack of remorse are indicative of the fact that the Applicant has not re-established “good character”; and
· the Minister’s Statement of Reasons which note that the Applicant would not previously have been granted Australian citizenship, and the severity of those offences and the Applicant’s lack of remorse: refer to paragraph 20 above.
The Minister submits that all of the above factors are within the scope and purposes of the Citizenship Act and are matters of “public interest”. The Tribunal agrees with this submission. The severity of the Applicant’s offences, his continued denial of guilt and lack of remorse are, in the words of Minister for Immigration and Ethnic Affairs v Baker [1997] FCA 105, instances of behaviour which “lay character bare very tellingly”.
The Applicant’s position is that he did not disclose the offences for which he has been convicted and sentenced at the time he applied for Australian citizenship (in 1996) because he did commit the offences and, therefore, he had nothing to disclose. The Applicant maintains the position that he is not remorseful because he did not commit the offences for which he has been convicted and sentenced and that the victims were all liars who colluded to send him to prison.
As set out above (in paragraph 13), the sentencing Judge did not accept this. The sentencing Judge referred to the Applicant’s offending as “utterly depraved” noting that his offences “left behind confused and damaged adults and children who grew up with the shadow of what [the Applicant] had done to them, haunting them all their lives”. In respect of the Applicant’s denial of the offences and accusation that the victims were all liars who had colluded, the sentencing Judge stated “[t]his was nothing more than the wriggling of a cowardly man, unable to accept that the past had caught up with him”.
It is well-established that the Tribunal cannot go behind a conviction and examine the facts on which it is based: Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575; Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135; Saffron v Federal Commissioner of Taxation (No 2) (1991) 30 FCR 578; 102 ALR 19 at 581 [22].
The Applicant’s contention is that the Tribunal should not accept the narrow notion of “public interest” allegedly urged upon it by the Minister but, rather, the Tribunal should make its decision under s 34(2) of the Citizenship Act by reference to a broader notion of “public interest”.
In this regard, the “Statement of Facts, Issues and Contentions of the Applicant”, dated 23 July 2015 (Applicant’s SFIC), states:
28.The Respondent has urged on the Tribunal a narrow notion of the public interest. In this respect the Respondent has adopted the approach taken by the Tribunal in Osorio v Minister for Immigration and Citizenship [2007] AATA 59 and WBU v Minister for Immigration and Citizenship [2007] AATA 1143. In both cases the Tribunal found:
It is axiomatic that it is in the public interest that a person, who is granted Australian citizenship under s13(1) of the Act, be a person of good character at the time of grant of Australian citizenship. Likewise, in the Tribunal’s opinion, it would be contrary to the public interest, for the purpose 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.
29.This notion of the public interest has its source in eligibility criteria set out in section 21. A criterion is that the Minister is satisfied that the Applicant is of good character at the time of the Minister’s decision on the application. Good character is a reference to the enduring moral qualities of a person. The purpose of the good character requirement is to make it more likely that a person who becomes an Australian citizen by conferral will uphold and obey the laws of Australia and other commitments made in the pledge of commitment.
30.Subsection 34(2) of the Act does not in terms require persons to whom it applies to be of good character. However, the notion of the public interest contended for by the Respondent is one that is clearly referable to the subject, scope and purpose of the Act. For this reason it would be permissible for the Tribunal to makes its judgment under subsection 34(2) by reference to it. Of course, the Tribunal is not required to. The Tribunal can make its judgment by reference to a broader notion of the public interest. It is preferable in this case that it do so for the following reasons.
31.The first reason relates to the purpose of the good character eligibility requirement at section 21 of the Act. An assessment whether a person to whom s34(2) applies is of good character does not further this purpose. As already mentioned that purpose is predictive; a person of good character is more likely to uphold and obey the laws of Australia and the commitments in the pledge of commitment. What purpose does an assessment serve when the Minister is considering whether it is contrary to public interest that a person remains a citizen? It isn’t predictive. At this time the Minister can consider whether the person has in fact upheld and obeyed the law and his other commitments. Whether a person has done this and is likely to continue to do so in the future is the preferable enquiry.
32.Secondly, a focus on character alone has the potential to result in idiosyncratic judgments where lack of remorse for past convictions is the decisive factor in a finding that a person is not of good character. There is potential for a decision maker to make, in effect, a moral judgment of a person rather than decide whether it would be contrary to the public interest for that person to remain a citizen. The potential arises where: a decision maker decides that a person is not of good character; lack of remorse is a decisive factor in the decision; and there is no evidence that the lack of remorse is predictive of future behaviour. If the lack of remorse in that scenario is not predictive of future behaviour then the decision will not serve the purpose of the character test in the Act and the purposes of the Act more generally.
33.Lack of remorse for past convictions by the applicants in Osorio and WBU were decisive factors in the Tribunal’s finding that they were not of good character at the time of decision. For this reason the Tribunal found that it would be contrary to the public interest for each applicant to remain an Australian citizen. The Respondent contends that it would be contrary to the public interest for the Applicant to remain a citizen for the same reason.
34.The Applicant has not expressed remorse for his convictions. Unlike Osorio and WBU this is not case where the Applicant has sought to diminish responsibility for offending he admits took place. Rather, the Applicant maintains that he is innocent of the crimes for which he was convicted.
35.If the Tribunal were to take the approach taken in Osorio and WBU then it would be open for the Tribunal to find that he is not of good character presently and, for this reason, it would be contrary to the public interest that he remains a citizen. For the reasons explained above it would be preferable that such a decision be grounded in evidence that the lack of remorse means there is a risk of offending in the future. However, there is no such evidence before the Tribunal. All of the evidence in this case points the other way. That is, he is at no risk of offending in the future.
36.For these reasons it is preferable that the Tribunal makes its decision under subsection 34(2) by reference to a broader notion of the public interest than that contended for by the [Respondent] (sic.). A broader notion would appropriately include the safety of the Australian community and the desirability that persons in the place of the Applicant continue to uphold and obey the law and the commitments in the pledge of commitment.
37.It would not be contrary to this broader notion of the public interest for the Applicant to remain an Australian citizen. The relevant facts are:
a. the Applicant is 81 years old;
b.the Applicant lived in Australia with his wife for nearly 40 years before he was extradited; 15 of those years as an Australian citizen;
c.in the time that he lived in Australia, there is no evidence that the Applicant has broken any laws of Australia;
d.the [Applicant and his wife] have lived productive and useful lived in Australia; they have made positive contributions to all of the communities they have lived in;
e.the Applicant was convicted of serious sexual offence; the first offence dates back to 1949 and the most recent to 1973 and has not expressed remorse for his offences; and
f.since 1973 the Applicant has rehabilitated himself and does not present any risk to the Australian community. [Emphasis added][2]
[2] Counsel for the Applicant made similar oral submissions at the hearing of this application.
The Applicant provided a witness statement, dated 12 August 2015, in support of his application and appeared, by telephone, at the hearing and gave evidence. The Applicant continues to maintain his innocence, he continues to have no remorse and considers that he is and always has been a person of “good character”. In addition, the Applicant provided four witness statements from Australian friends and his wife in support of his “good character” (tendered as Exhibits A4 to A7). Each of the witnesses was cross examined at the hearing. Each of the Applicant’s witnesses categorically believe that the Applicant is innocent, that he did not commit the child sex offences concerned and that he is of “good character”. This is despite the fact that the Applicant has been convicted of 13 “serious (child sex) offences” and sentenced to 11 years imprisonment for those offences and that these convictions and this sentence were upheld on appeal. In the circumstances, the Tribunal places little weight on the Applicant’s witness statements.

It is clear from the Citizenship Act itself, that a distinction must be drawn between cases dealing with the refusal of an application for Australian citizenship, on the one hand (which requires a consideration of various eligibility criteria, including whether a person was of “good character” at the time of the Minister’s decision on the person’s citizenship application) and cases dealing with the revocation of Australian citizenship, on the other (which requires the person to have been convicted of a “serious offence” after applying to become an Australian citizen and a consideration of whether it would be contrary to the “public interest” for that person to remain an Australian citizen). The granting and revocation of citizenship involve different tests which are contained in different provisions in the Citizenship Act. That said, the notion of the “public interest” has its source in the eligibility criteria set out in s 21 of the Citizenship Act, which criteria include the requirement that a person is of “good character” at the time of the Minister’s decision on the citizenship application. “Good character” being a reference to the “enduring moral qualities” of a person. This much is accepted by the Applicant: refer to the Applicant’s SFIC at paragraph 44 above (at [29]). Consequently, the question of “good character” is relevant and important in determining whether it is contrary to the “public interest” that a person remain an Australian citizen under s 34(2) of the Citizenship Act. The seriousness and nature of the Applicant’s criminal offences, their duration and the Applicant’s sustained denial of guilt are indicative that the Applicant is not of “good character”. The Applicant’s “enduring moral qualities” are indicative that the Applicant is not of “good character”: Irving.
It is clear from the serious and substantial 11 year sentence imposed on the Applicant by the sentencing Judge, that the court viewed the Applicant’s offending as very serious, despite the lengthy period of time that had elapsed since the Applicant’s offending (some 40 years) and his advanced age and mitigating circumstances. The gravity of the offences is also reflected in the fact that the United Kingdom went to the effort and expense of going through the process of extraditing the Applicant from Australia to the United Kingdom, even though nearly 40 years had passed since he had last offended.
It is apparent from the sentencing Judge’s remarks, which the Tribunal must accept, that the Applicant was not of “good character” at the time of the Minister’s decision on his citizenship application. It is just that, at that time, the law had not caught up with the Applicant. That is, at the time of the Minister’s decision on the Applicant’s citizenship application, the Applicant had not been charged, convicted and sentenced for his child sex offences.
An advantage to the Australian community of revoking the Applicant’s citizenship is that the citizenship would be revoked from a person whose application for citizenship the Minister was not able to properly assess because it was not aware of the Applicant’s offending behaviour: Osorio and WBU.
The seriousness of the Applicant’s offences (as reflected by the extradition process and his sentence) and the grave harm that would flow to members of the Australian community should the Applicant reoffend adds considerable weight to a finding that it would be contrary to “public interest” if the Applicant were to remain an Australian citizen.
Counsel for the Applicant asserts that all of this must be weighed against such factors as:
·     the Applicant’s age (currently he is 81 years old);
·     the Applicant’s health problems (see paragraph 9 above);
·     the Applicant’s ties to Australia;
·     the hardship that the Applicant and his wife will face if he had to remain separated from his wife for the duration of his sentence (i.e. with the Applicant remaining in prison in the United Kingdom and his wife remaining in Western Australia);
·     the financial and emotional hardship the Applicant’s wife would face if she had to relocate to and establish a new life the United Kingdom, after so many years in Australia, so that she can be close to and regularly visit the Applicant in prison;
·     the fact that the sentencing Judge noted counsel for the Applicant’s submissions at the Applicant’s criminal trial that because the Applicant had not offended in Australia he had rehabilitated himself and that the public no longer needed protection from him (see paragraph 13 above);
·     the Court of Appeal’s finding that the Applicant was “a man of good character” apart from the matters alleged against him and that there was “no suggestion of any improper activity of any sort carried out by him after 1973 (see paragraph 14 above);
·     that the Applicant was assessed under the Risk Matrix 2000 Assessment, as being at “low risk” of reconviction (On this point, the Tribunal notes that the Applicant was not assessed under the Risk Matrix 2000 Assessment as being at “low risk” of reoffending but as being at “low risk” of reconviction (see paragraph 18 above).
Most of the above listed factors are not matters which go to the “public interest”. They are not the interests of the public or advantages to the community but, instead, represent the interests of or disadvantages to an individual or individuals (namely the Applicant and his wife): DPP v Smith (refer to paragraph 31 above).
In Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, DP Breen said (at [8]):
The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home……..The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts it is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State.
Similarly, the decision to revoke a person’s Australian citizenship under s 34(2) of the Citizenship Act is not a “second form of punishment, which is the domain of the Criminal Courts, it is simply a right of the Australian community to decide whom they wish to have included as fellow citizens” or, more specifically, who the Australian community considers should remain Australian citizens.
Counsel for the Applicant encourages the Tribunal to depart from the reasoned approach adopted by the Tribunal in Osorio and WBU. The nature of the historical offences of the applicants in Osorio and WBU are clearly similar to those of the Applicant in the present case, save for the fact that the gravity and extent of offences is greater in the Applicant’s case, and that whilst the Tribunal should not inordinately fetter the discretion in s 34(2) of the Citizenship Act, consistency in decision-making is in the “public interest” and a factor to be taken into account by the Tribunal in the exercise of the s 34(2) discretion.
Further, counsel for the Applicant contends that focusing on “good character” could lead to idiosyncratic decisions. However, as discussed above, and, as acknowledged in the Applicant’s SFIC (see paragraph 44 above), what is in the “public interest” must be determined by reference to the scope and purpose of the Citizenship Act and the notion of “public interest” has its source in the eligibility criteria for Australian citizenship set out in s 21 of the Citizenship Act, which includes the “good character” requirement. It follows that “good character” is relevant and important to the exercise of the discretion in s 34(2) of the Citizenship Act. That is not to say, of course, that “good character” is the only relevant factor for consideration in the exercise of the s 34(2) discretion.
Counsel for the Applicant also criticises, as idiosyncratic, an approach to “public interest” which focuses on remorse. As submitted by the Minister, remorse has long been held to be an indicator of rehabilitation of character in citizenship refusal cases: see, for example, Shukure v Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 63 at [11] and [23]. Indeed, remorse is identified in the Australian Citizenship Instructions (at 10.5.2 titled “Factors to take into account”) as a mitigating factor in determining whether a person is of “good character” for the purposes of the Citizenship Act.
Counsel for the Applicant effectively asks the Tribunal to:
·     ignore that the fact that the Applicant obtained citizenship in circumstances where he undoubtedly would have been refused had his offences been known at the time he applied;
·     ignore that the fact that the Applicant would not be granted citizenship if he applied today;
·     ignore the extremely critical findings and remarks of the sentencing Judge;
·     make a finding which would clearly be inconsistent with other relevant revocation decisions of the Tribunal; and
·     disregard the opinion of the Minister as to what is in the “public interest”.
It is the Minister’s contention, which the Tribunal accepts, that such a finding would be idiosyncratic.
The Tribunal’s view is that the following closing submission of the Minister’s representative sums up the Applicant’s case perfectly:
This is a matter where there are clear reasons why it is in the public interest that the applicant not continue to be an Australian citizen. It is a status he should never have obtained. It is a status he would not receive now if he applied. He is patently not of good character, having committed offences the Australian community would regard as particularly abhorrent. To allow him to remain a citizen undermines the proper application of the [Citizenship] Act and Australia’s right to determine who is accepted into its citizenry. Balanced against that are the facts that as a result of his age, the risk he presents is diminished and the genuine hardship which would be caused to his wife. Ultimately the Tribunal is being asked to elevate the interests of an individual above those of the community. In line with the authorities that have followed Smith and so forth, that is clearly distinct from the public interest.
DECISION
For the above reasons, the Tribunal affirms the Revocation Decision.

I certify that the preceding 61 (sixty one) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh
......(Sgd) A Tran..................................................................
Administrative Assistant
Dated 15 October 2015

Date(s) of hearing 16-17 September 2015

Counsel for the Applicant

Solicitors for the Applicant

Mr J Edwards

Estrin Saul Lawyers

Representative for the
Respondent

Mr A Gerrard

Solicitors for the Respondent Australian Government Solicitor

Division	GENERAL DIVISION
File Number(s)	2015/0382
Re	TRHL
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

Tribunal	Senior Member CR Walsh
Date	15 October 2015
Place	Perth