Trutmann and Minister for Home Affairs (Citizenship) - [2022] AATA 687

Trutmann and Minister for Home Affairs (Citizenship) [2022] AATA 687 (6 April 2022)
Division:GENERAL DIVISION
File Number: 2021/3869
Re:Philippe Trutmann
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:6 April 2022
Place:Melbourne

Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
........................................................................
Senior Member D. J. Morris
Catchwords
CITIZENSHIP – applicant was conferred Australian citizenship – minister revoked citizenship – two grounds of revocation – applicant convicted of serious offence – minister satisfied contrary to the public interest for the applicant to remain an Australian citizen – review by tribunal of minister’s decision – threshold question – would person be rendered stateless – tribunal satisfied applicant holds another citizenship – consideration of factors – facts of offending – very large number of child sex offences where applicant was in position of trust over victims – is it contrary to public interest for applicant to remain citizen – relevant factors to take into account – should the discretion be exercised to revoke – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 33A, 35, 37, 38AA
Australian Citizenship Act 1948 (Cth), s 13, Div 2, Part III
Australian Citizenship Act 2007 (Cth), Preamble, ss 3, 34, 52
Federal Act on the Acquisition and Loss of Swiss Citizenship 1952 (Switzerland)
Migration Act 1958 (Cth), s 35
Sex Offenders Registration Act 2004 (Vic), s 62
Cases
BOY19 v Minister for Immigration and BorderProtection [2019] FCA 574
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
O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210
Prasad and Minister for Immigration and Ethnic Affairs; Re: [1994] AATA 326
Re Davis [1947] HCA 53; (1947) 75 CLR 409
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 492
Secondary Materials
Kim Rubenstein, Australian Citizenship Law (Thomson Reuters, 2^nd ed, 2017) Table 4.1230
Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (2017) Vol 13, p 168; Commonwealth of Australia
REASONS FOR DECISION
Senior Member D. J. Morris
6 April 2022
BACKGROUND

The Applicant, Mr Philippe Trutmann, was born in 1961 in Guatemala. He migrated to Australia around 1966. In December 1993, he was granted Australian citizenship by conferral.
In December 2005, Mr Trutmann was convicted in the County Court of Victoria of the following offences: Gross indecency – person under 16 (19 counts); Indecent act with a child under the age of 16 (22 counts); Knowingly possess child pornography (one count).
He was sentenced to an aggregate head sentence term of imprisonment of six years and six months, with three years and six months to be served before being eligible for parole.
In September 2011, Mr Trutmann was convicted in the Magistrates’ Court of Victoria of one count of the offence of Indecent assault, relating to an historical offence.
Mr Trutmann’s 2005 convictions brought him into the scope of section 34(2)(b)(ii) of the Australian Citizenship Act 2007 (‘the Act’), which confers on the Ministers administering the Act 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.
On 17 May 2021, the Minister for Home Affairs exercised her discretion under section 34(2) of the Act to revoke Mr Trutmann’s Australian citizenship. On 14 June 2021, Mr Trutmann asked the Tribunal to review that decision. His entitlement to do so is found in section 52 of the Act.
HEARING
The matter was heard on 8 and 9 March 2022. The Applicant was represented by Mr Greg Hughan of counsel, instructed by Ms Tegan Weir of Clothier Anderson Immigration Lawyers. The Respondent was represented by Mr Jonathan Barrington of counsel, instructed by Ms Bree Roscoe of Mills Oakley Lawyers.
The Applicant gave evidence and was cross-examined. The Tribunal made an order under section 35 of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’) prohibiting the publication of the names of lay witnesses in these proceedings. Other witnesses who gave evidence were the Applicant’s partner, who will be called in these reasons ‘Mr XL’, the Applicant’s sister, ‘Mrs XS’; a friend, ‘Mr XF’; and Mr Patrick Newton, forensic and clinical psychologist, who gave evidence as an expert witness. Mr XF and Mr Newton gave evidence by video, and Mrs XS by telephone, by leave of the Tribunal under section 33A of the AAT Act.
The Tribunal took into evidence the following documents:
(a)Volume of ‘TD’ documents submitted by the Respondent in accordance with section 37 of the AAT Act (Exhibit R1);
(b)Volume of ‘STD’ documents submitted by the Respondent in accordance with section 38AA of the AAT Act (Exhibit R2);
(c)Statement by the Applicant, dated 8 November 2021 (Exhibit A1);
(d)Statement by Mr XL, dated 8 November 2021 (Exhibit A2);
(e)Medical letter relating to Mr XL, dated 26 October 2021 (Exhibit A3);
(f)Medical report of Dr Hamed Zinsaz relating to the Applicant’s mother, dated 18 October 2021 (Exhibit A4);
(g)Letter of instruction to Mr Patrick Newton, dated 7 July 2020 (Exhibit A5(1));
(h)Psychological report by Mr Newton, dated 13 August 2020 (Exhibit A5(2));
(i)Psychological report by Mr Ian Joblin, dated 17 September 2005 (Exhibit A6); and
(j)Material from Victorian Department of Justice and Community Safety (Exhibit A7).
The Applicant submitted a Statement of Facts, Issues and Contentions, as did the Respondent. The Tribunal took these into account.
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. Emphasis added.)
The term “serious prison sentence” is defined in section 3 of the Act (the ‘definitions’ clause) to mean a sentence of imprisonment for a period of at least 12 months.
As set out above in section 34(2) of the Act, if a person’s citizenship is revoked, the person ceases to be an Australian citizen immediately. 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.
It should be noted that the Minister may not revoke citizenship under section 34(2) of the Act if – first – the power to revoke relies only on section 34(2)(b)(ii) and – secondly – 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 term ‘stateless’ in these reasons to describe a person in this situation.
If the Minister is satisfied that the exercise of the discretion would not have the result of rendering a 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.
OFFENDING
Before the Tribunal (TD, pp 69-70) was an Australian Criminal Intelligence Commission report dated 17 June 2020.
As mentioned above, the Applicant was convicted in December 2005 at the County Court of 22 charges of the offence of Indecent act with child under 16. He was also convicted at the same hearing of 19 charges of the offence of Gross indecency – person under 16, and received an aggregate sentence of six years and six months’ gaol. He was also convicted of one count of the offence of Knowingly Possess Child Pornography, for which he received a prison sentence of six months, three months of which was to be served concurrently.
For a September 2011 offence of Indecent assault, the Applicant was convicted in the Magistrates’ Court and sentenced to 12 months’ imprisonment, wholly suspended.
The 2005 convictions
The circumstances of the offending were set out in the sentencing remarks of a Judge of the County Court (TD, pp 37-52). The Applicant was engaged as a boarding house assistant at a Victorian school in 1985. He had himself attended the school, as a day boy and, after his parents moved overseas in connexion with his father’s work, as a boarder. The role of boarding house assistant involved general oversight of boarders (with duties encompassing supervising their meals, dormitories, prep, and aiding the general running of the boarding house). There were several assistants and they were provided with live-in accommodation at the boarding house.
He worked as a boarding house assistant from the beginning of 1985 until his employment was terminated by the school in 1996. However, in 1986 and 1987, the Applicant was studying in Melbourne and was not a full-time resident of the boarding house.
In sentencing, His Honour said (TD, pp 39-40):
The circumstances surrounding your offending are, indeed, disturbing. In November 2004, a former [redacted] student made a complaint to the Sexual Crimes Squad of having been sexually assaulted by you while he was boarding at [redacted]. As a result of that complaint, an investigation was commenced. [In April] 2005, police attended at your home in possession of a search warrant. They later met you at those premises. A search was conducted and in computer form discs were found to contain some hundreds of images of child pornography. You were taken to be interviewed.
…
As a boarding house assistant, you occupied a room on the male student level and undertook to provide pastoral care for the students in that boarding house, assisting them in the preparation for school, afternoon routines, supervision and the general running of the boarding house. Those students, aged from nine to 14, came from local, interstate, and overseas locations. They occupied single and shared rooms. Due to their age and the foreign environment, these students were vulnerable and often turned to staff members for support. Many of these students looked up to you and regarded you as a surrogate older brother. You would engage in activities such as playing cricket in the nets with them after school and at weekends. You arranged visits to the cinema, go-kart tracks and the like. You assisted teachers in sporting activities.
A number of those boarders had difficulty in making adjustments to being away from home. You would gain their trust and friendship and would allow them to use the computer in your room and you gave back rubs to students who sought them. You were also tasked to get children who wet their bed up at night to the toilet.
His Honour then referred to the fact that the school matron became concerned that the Applicant, contrary to a school directive, was engaging with young male students in their dormitory rooms in circumstances where the door was closed, and it was dark. In 1990 a male student had complained of an assault in his room by an unidentified male person. That assault involved the person placing a hand on the boy’s genitals underneath his pyjamas while he was in bed.
The boy who made the 1990 complaint was believed by the school matron but not believed by more senior staff. On the day he reported the complaint, in company with his mother and the matron, the senior staff told him he was not to return to the boarding house and his personal possessions would be collected. He was, in effect, asked to leave the school. His Honour quoted the matron as saying: “I also was very upset as I unreservedly believed the young boy.”
His Honour said, of the 1990 complaint:
Whether that description of events be completely accurate – and it does tend to be supported by other material within the hand-up brief – it brings clearly home that matters such as this, when reported, must be investigated fully. It is a dreadful thing to have to say that, had that matter been investigated fully at the time, there was a real chance that the last 20 names on this presentment would never have been there.
It is certainly true, to use the Judge’s word, that the senior echelon of the school behaved dreadfully in their handling of this 1990 complaint.
The Judge referred to the Applicant’s “detailed and frank” account of how he was allocated to the boy’s dormitory and how the course of his offending commenced. Essentially, the Applicant developed a compulsion or curiosity to view the genitals of students. He began approaching sleeping students without them waking. His Honour went on:
That voyeurism progresses to actual touching of the sleeping student to then masturbating [them] in an attempt to get them to achieve orgasm.
The Judge said that the Applicant developed strategies in the event a student awoke, and he would tell them they had been talking in their sleep.
You gravitated towards students who you identified as being heavy sleepers and the majority of the students may have been unaware that you had been in their room. Upon reading the victim impact statements, that, to a large degree, is borne out. Many of them have no memory whatsoever of this conduct. However, it is also clear that many of them were aware of it and, indeed, pretended to be asleep.
His Honour accepted that the degree of probability is high that, had the Applicant not confessed to assaulting 41 other students after one complained to police in 2005, he may never have been charged with many of the counts. The Judge said the punishment the Court would impose has been brought on by Mr Trutmann’s own “frankness and admissions.”
The Judge referred to various psychological reports and that one, a forensic psychologist Mr Ian Joblin, reported the Applicant was extremely remorseful.
Regarding the charge of possessing child pornography, the Judge notes that the Applicant stated that the material had been compiled long after he had left his position at the school and that he had apparently stated he accumulated the material so that he would not interfere with young children. His Honour accepted that the Applicant had this material for self-gratification purposes and acknowledged that it at least “displays a desire on your part not to offend in the physical way that you did for so long.”
Some of the counts that the Applicant was charged with were “representative counts” which the Judge referred to certain of these counts describing “up to 20 or 30 incidents.”
The Judge declared that the Applicant be placed on the Register of Sex Offenders (‘the Register’, see section 62 of the Sex Offenders Registration Act 2004 (Vic)) for 15 years and, for counts three to 41, would be sentenced as a serious sexual offender. The Applicant’s oral evidence was that he was later advised by the administrators of the Register that this was an error in the Judge’s oral sentencing remarks, and he was, in fact, placed on the Register for life.
The 2011 conviction
In respect of the single count of Indecent assault dealt with at the Magistrates’ Court in 2011, the Applicant pleaded guilty and received a suspended sentence of 12 months’ imprisonment. In his oral evidence, the Applicant said that he believed that the offending occurred in 1989 and that the complainant in this matter was the same person who made the initial complaint to the school matron in 1990.
OPENING SUBMISSIONS
In his opening submissions, counsel for the Applicant, Mr Hughan, conceded that a significant number of the offences to which the Applicant pleaded guilty encompass dates prior to him being granted Australian citizenship, noting that several of the charges led to less than 12 months’ imprisonment.
Mr Hughan said it was conceded that the power to revoke is enlivened by the Applicant’s offending but that it would be submitted that the public interest is not served by revocation or, in the alternative, that the discretion to revoke should not be exercised.
In the Respondent’s opening submissions, Mr Barrington agreed with the Applicant’s submissions about which counts should be regarded as occurring before the grant of citizenship.
ORAL EVIDENCE
Evidence of the Applicant
The Applicant told the Tribunal about his current employment and previous positions he has held. He also advised about certain academic studies he has undertaken and the qualifications he has attained. He is currently working in full-time employment.
The Applicant told the Tribunal that he has been in a relationship with Mr XL for around ten years. They live together, and Mr XL works one day a week.
Mr Trutmann told the Tribunal that his father is deceased. His mother has recently taken up residence in an aged care home which is around 20 minutes’ drive from where his sister lives in Victoria. He drives to see his mother every weekend and talks to her on the telephone on other occasions. He said his mother is physically healthy but is suffering from short-term memory loss. The Tribunal noted that there is corroborating medical evidence before it from a gerontologist (Exhibit A4).
When asked why he had applied for the revocation to be set aside, Mr Trutmann said he had worked hard on his rehabilitation. He said that he is “conscious of the harm caused by that type of behaviour” and sees the revocation as a preliminary step to make it possible for him to be deported. He said deportation would destroy his life with Mr XL and remove him from seeing his mother again. He said his whole life centres around Australia.

The Applicant told the Tribunal that his father’s work meant frequent international postings, and when he was an infant the family moved to Germany and then to Australia in 1966. He said his parents were here until 1970 when his father was transferred to Algeria. His parents and his sister, Mrs XS, went to Algeria, but he and his two brothers became boarders at the school they had already been attending in Victoria as day students.
He stayed in Australia until 1973 and then went to Switzerland for schooling for two years, before attending a boarding school in England. He finished there in 1980 and came back to Australia, where his father had been re-posted. He has lived in Australia since 1980, leaving for holidays on, he estimated, about ten occasions for no longer than four weeks on any one occasion.
The Applicant said he was 24 when he started on the boarding house staff. One of the students had a problem with bed wetting and he was tasked to wake the boy up to go to the lavatory to minimise the chance of it occurring. The child was a heavy sleeper, and the Applicant told the Tribunal that his offending commenced in this context.
When asked about his offending behaviour, the Applicant said:
It is horrible to know the effect of my offending on my victims. It bothers me. I shake my head. I can’t understand how I justified what I was doing.
The Applicant agreed that his offending continued for the years he was a boarding house assistant. He said when he was asked to leave the boarding house in 1996 by the head of campus, it was because another staff member had questioned his role there. He said his offending did not come to light at that time.
In April 2005, police contacted him at work and told him to return to his residence. When he did, officers were there with a search warrant. He said he suspected why they were there straight away.
When asked whether he thought his offending would ever catch up with him, the Applicant said:
I was fairly confident the offending had occurred while the students were asleep. Hopefully nothing would come of it. I knew, because of the amount, that may not have been the case.
He said when he got to his home on the day in April 2005, the police said a past student, whom they named, had made a complaint about being sexually assaulted.
He was questioned at his residence. He told police he had a laptop computer and that the police would find child pornographic material on it. He told the Tribunal the computer and some computer disks were seized. He was interviewed by the police. The Applicant said:
I was going to tell them about the victims. I had been wanting to get it off my chest. I saw this as an opportunity to stop carrying the burden.
He told the police about other victims and used school yearbooks he had at his house to identify them as best as he could remember.
The Applicant said that, after he was charged, he was granted bail. He sought psychological counselling and saw a psychologist, Mr Peter Billings, on several occasions. He said this was the first time he had sought such professional help.
In December 2005, he was sentenced and commenced his prison term. He served just under four years before being paroled. During his time in prison, he was a unit billet and was transferred to a lower security prison and worked on a “bush gang” with other prisoners, going out to farms to help with fencing and planting trees.
The Applicant said that, shortly before he was released, he undertook a sex offenders’ programme, with a group of nine other offenders and two counsellors, twice a week for about six months. He said it was activity based and focussed on being honest about the offending history and developing strategies to avoid future offending. He said he found the course very beneficial and it “made me see I could live without being able to hurt other people again.”
He said the course showed him the damage he had done to his victims and how selfish he had been, and how he could live a constructive life.
Mr Hughan asked the Applicant about the 2011 court appearance. He said he had no memory of the incident but after hearing the offending conduct as described by the complainant, he accepted it was characteristic of what he had done, so he accepted responsibility and pleaded guilty. The Tribunal notes that this was the offending in 1989 where the complainant had in 1990 described being abused in the boarding house by an ‘unidentified man’.
The Applicant said he believed he was no longer a threat to his community and believed he could contribute, noting that volunteering is difficult owing to his lifelong reporting obligations.
Under cross-examination, the Applicant denied that he initially took up the job in the boarding house because it would give him an opportunity to engage in his offending conduct. The boarding house assistant positions were, however, individual year-by-year arrangements with the school, and he conceded to counsel that the opportunity to offend against the students was “definitely a factor” in him continuing to seek annual renewal.
Mr Trutmann said he worked out which children were the heavier sleepers and targeted them. He said he developed strategies, if they woke, to say their doonas had come off or they were talking in their sleep or having a nightmare. When asked by Mr Barrington if there was a degree of planning and premeditation in the offending, the Applicant responded it was “self-preservation.”
He agreed that he actively sought out those he could offend against and not get caught, and agreed he masturbated students and used their hands to masturbate himself. He agreed that there was one incident of digital penetration. He said, “My aim was to carry out the abuse when they were asleep.”
The Applicant agreed he had pleaded guilty to 41 counts and that some of these represented multiple offending incidents against some children. Mr Barrington asked if the Applicant had a sense of how many instances, and could it be hundreds? The Applicant responded: “I suppose so, in terms of individual episodes.”
Mr Trutmann agreed that he knew what he was doing was both unlawful and morally wrong. When asked about the Judge’s remark that his offending involved a “breach of trust of the grossest order”, the Applicant said: “I can’t argue with that.”
When asked about the child pornographic material, Mr Trutmann agreed that he told Mr Newton when examined that he began to acquire it in 1996 after having left the school. He agreed that the nature of the material increased in severity to more deviant material, both photographs and videos. The Applicant agreed at the time that he engaged in viewing this material in an obsessive way “most evenings.”
The Applicant said he tried to control this obsession by deleting the material and destroying the computer disks, “trying to break the cycle”, but kept returning to material of this nature because it was “the only thing that gave me sexual stimulation.”
When asked why he did not view adult pornography, Mr Trutmann said, “Because it went on from the stimulation at the school.”
Mr Barrington asked the Applicant whether he realised that child pornography is not a victimless crime. He replied, “Not until I undertook the [sex offender] course.”
When asked about his reporting obligations, the Applicant said he cannot have unsupervised contact with persons under 18 and cannot have a job working with children. Mr Barrington asked the Applicant whether he thought those conditions are necessary. He replied: “Now I don’t think they are relevant, but I have no issue with them. It gives the community confidence about past offending.”
Mr Barrington asked the Applicant how he considered revocation of his Australian citizenship would affect his life. He responded:
It would still restrict me from travelling overseas. I can’t visit family in Europe. I couldn’t go to the USA anyway. I would be looking over my shoulder for someone to say, ‘we are deporting you’. It is also saying, no matter what you do to try and be a good person, that I am not good enough for that. I have no intention of abusing the trust that Australian citizenship gives me.
In answer to direct questions from the Tribunal, Mr Trutmann said he had a Guatemala passport as a baby but had been told by his family there that his citizenship had lapsed. He said he has a Swiss passport and has travelled on that in the past.
The Applicant said he makes a regular financial contribution to the school where he was a boarding assistant which recompenses the school for a victim payment.
The Tribunal asked the Applicant about a brief relationship he had formed with a woman in 2005 who had a son who was not a student at the school but who he knew through a local sporting club. He agreed that part of the reason for the relationship was because he saw it as an “additional opportunity” to get close to the woman’s 12-year-old son.
The Tribunal noted that in the papers a student at the school came to the Applicant one morning and said to him “I don’t want to do that gay thing again”. He responded: “Yes, he came to my room and said that.”
In reply, Mr Hughan asked the Applicant about his involvement in the sporting club. He said he had been involved for three or four years in setting up the junior side of the club. He said he had never thought of offending against any of the children at the club. He then said, apropos the relationship he formed with the mother of one of the junior members of the club, as follows:
If I was involved with her, I was thinking if he [i.e. the woman’s young son] was asleep, I might have the opportunity again.
Evidence of Mr XL
The Applicant’s partner, who is an Australian citizen, gave evidence that he had known the Applicant for eleven and a half years and been living with him for over ten years. He said that not long after their relationship had become serious, the Applicant told him about his offending. Mr XL said:
I was shocked. I had known him for a good year before we started dating. I almost couldn’t believe it. I decided to give him a chance.
Mr XL said that the Applicant is a significant support not only emotionally but financially, and he feared that if Mr Trutmann’s citizenship is revoked, he could be removed from Australia. In addition, he said they would be unable to travel overseas together.
Mr XL was asked if he ever had any sense that the Applicant was interested, in a sexual way, in children. He said he emphatically had never had any impression of, or concern about, that, in all the time he had known him.
Mr XL said that the Applicant pays most of the bills in their daily living. He said:
Phil is pretty much Australian. He is part of the community. He has done some terrible things in his past and has made steps to steadily improve and has done whatever has been required of him in terms of the Sex Offenders Register. He has shown remorse, and I can’t see that he needs to be constantly punished.
Evidence of Mrs XS
The Applicant’s sister gave evidence. She had provided a letter of support for the Applicant dated 21 June 2020 and told the Tribunal that some things had changed since she wrote it. Mrs XS said that her mother is no longer living with her. She had lived with Mrs XS for several years and then with the Applicant for a few months, before moving to an aged care facility about five months ago.
Mrs XS said she was fully aware of her brother’s offending history. She said that the Applicant had telephoned her on the day the police visited his house and that it was a “huge shock, of course.”
Mrs XS said she regularly visited the Applicant in prison, sometimes accompanied by her husband. Her mother and late father also visited him there. In terms of the revocation of Australian citizenship, Mrs XS said:
I personally feel that this is his home. Australia has been his home. He is the only family, apart from my Mum, here. It was a difficult time. He has brought himself back after prison. I don’t think he would cope very well overseas.
In answer to a direct question from the Tribunal, Mrs XS said she and the Applicant had two brothers, one lives in Switzerland, and the other divides his time between Peru and the United States of America.
Evidence of Mr Patrick Newton, clinical and forensic psychologist
Mr Newton confirmed he had examined the Applicant and wrote a report in August 2020. He said he relied on the STATIC-99 risk assessment for assessing recidivism by a person found guilty of sex offending. He said he concluded that the Applicant was a “low risk” of re-offending and told the Tribunal: “I would say the Applicant is a one in 20 chance of re-offending over a five-year period.”
Mr Newton said he also applied the RSVP risk assessment tool. He said that this measure showed the Applicant was a “low risk of recidivism compared with other sexual offenders”. He is subject to the Register of Sex Offenders for the rest of his life, which Mr Newton felt was “sufficient to contain him.”
Mr Newton said:
It is fair to say he is a reserved man and a shy man. He has a great sense of shame and remorse for his conduct. He also understands the effect of the abuse on-line. He was filled with horror and seems sincere and genuine to me.
Mr Newton said he had seen about 4,000 sex offenders during his professional career and agreed that some deny, and some admit, their offending. He said:
I read Judge Smallwood’s sentencing remarks. He refers to comprehensive admissions against his self-interest. That is reflective of my interview with the Applicant. He was open in discussion, where he could have remained silent or prevaricated.
Under cross-examination, Mr Newton said he had identified the Applicant as having Paedophilic Disorder of an “exclusive type” in that he was attracted only to male children. Mr Newton said that “Fundamental sexual orientation is unlikely to change, but what might change is in terms of acting upon that orientation.”
In terms of the child sex material, Mr Newton noted that there was minimised culpability at the time because the Applicant viewed the possession of that material as a victimless crime.
Mr Barrington referred to the characteristics of the offending as manipulating children who were asleep, and asked whether Mr Newton thought this constituted sexual violence. He responded:
It is certainly sexual violence, but physical coercion was not present….his offending did not have an aggravating feature of physical coercion.
The Tribunal directly asked Mr Newton why he referred to a ‘history of’ Paedophilic Disorder. He replied: “In 2005, it would have been Paedophilia. He’s done the sex offender course and there has been a significant time, post-release.”
The Tribunal asked Mr Newton whether the number of victims is relevant in assessing risk of re-offending. He responded: “It is relevant in the assessment of risk. This was offending of an entrenched nature. Opportunistic offences in a single instance don’t score highly.”
In reply, Mr Hughan asked whether there is a classification for Paedophilic Disorder in remission. Mr Newton responded:
Not formally. All DSM V have course specifiers. Typically, these are not used in paedophilia. There tends only to be classifications of Paedophilia or Paedophilic Disorder. Once a person has completed treatment and remained offence-free, it moves to being a ‘history of’ Paedophilic Disorder.
Mr Newton said that his view is that the Applicant should not be engaged in unsupervised interactions with children, for example babysitting grandchildren, or the like.
Evidence of Mr XF
Mr XF, who is a friend of the Applicant of eleven years, gave evidence. He provided a letter of support dated July 2020. He said:
As I understand it, the Applicant will not have an Australian passport or the right to vote or other things. My main concern is that the loss of citizenship leads into the risk of being deported at any time. There would be huge ramifications for his partner, and his frail mother or if something happened to one of his brothers overseas. The certainty he has would go.
If we were to remove the convictions, he has met all the criteria to be an Australian citizen. I say that with conviction. He works. He pays his taxes. He has a loving relationship with his partner and is close to his family. The convictions are a big issue, and I understand that.
When asked what his view was on the risk of re-offending, Mr XF said “You can never say anyone is never a risk. What I know of him and as a judge of people, I cannot see Phil as a risk.”
Mr XF told the Tribunal that he had been returning to his apartment recently and had been bashed by a stranger looking for drugs.
My hip was crushed and has had to be surgically replaced. Phil has been to see me and had rung every day. He has offered for me to stay with them when I am discharged from hospital. Phil has proven what an amazing friend he is.
CLOSING SUBMISSIONS
Mr Hughan said the Tribunal should not be satisfied that it would be contrary to the public interest that the Applicant should be an Australian citizen. Alternatively, if the Tribunal does not come to that conclusion, the discretion should nonetheless not be exercised to revoke the Applicant’s citizenship.
Mr Hughan said that charges 1 to 30 and charge 32 on the presentment at the County Court clearly predate the grant of Australian citizenship to Mr Trutmann. Charges 31 and 33 straddle the date of conferral, and charges 34 to 42 relate to periods after the grant. In addition, the 2011 conviction related to offending in 1989 which is relevant to the public interest criteria.
Mr Hughan submitted that Australia was described as the Applicant’s home in a heartfelt and genuine way; and that 40 out of the 61 years of his life have been spent living in Australia, with the 12 or so years of his life spent abroad largely when he was a child.
Mr Hughan said that, leaving aside the convictions, the evidence should satisfy the Tribunal that the Applicant has been a model citizen. The offending is accepted as very serious indeed and occurring over a significant period. Mr Hughan submitted that Mr Trutmann is fully rehabilitated, and the papers before the Tribunal show that his conduct in prison was good and productive.
Mr Hughan urged the Tribunal to have regard to the factors identified by Deputy President Sosso in Re:NPRT and Minister for Home Affairs [2020] AATA 3641 (‘NPRT’), and noted that the Respondent also submitted that these factors are relevant.
Mr Barrington submitted it was clear between the parties that there are two questions before the Tribunal. The first question is whether it is contrary to the public interest for Mr Trutmann to remain an Australian citizen. The second question is whether the discretion to revoke citizenship should be exercised.
Mr Barrington drew the Tribunal’s attention to Table 4.1230 in Australian Citizenship Law by Professor Kim Rubenstein. Professor Rubenstein, who is the leading academic authority on Australian citizenship law, examined the reasons for 20 revocations of citizenship that occurred between 1948 and 2016. Mr Barrington submitted that the offending in this case is more serious than most, if not all, of these instances.
Mr Barrington submitted that the Applicant’s criminal conduct paints a horrifying picture and that any sexual offending against children is abhorrent. He drew the Tribunal’s attention to the 2017 report of the Royal Commission into Institutional Responses to Child Sexual Abuse, where the Applicant was a focus.
Mr Barrington submitted that the Applicant held a position of trust over ten years where the school, parents and children trusted him, and that trust was repeatedly abused. He noted that the Applicant acknowledged in his evidence that part of the motivation for him annually re-applying for his boarding house post was to have access to the students.
Mr Barrington drew the Tribunal’s attention to some of the victim impact statements in the papers. One victim reported major depression and suicide attempts (STD, p 585); another reported he had lost the desire for academic study (STD, p 644); another victim reported spending several thousand dollars on medical and psychological counselling (STD, p 454); the mother of the student expelled after first raising a complaint that was not believed spoke of the impact on her (STD, p 477); one victim later took his own life, and it was speculated that the Applicant’s conduct may have contributed to this (STD, p 472).

Mr Barrington referred to the fact that the child abuse material found in the Applicant’s possession was acknowledged to have “particularly deviant” content. He submitted to the Tribunal that this was particularly depraved and inherently evil offending. Mr Barrington said if that characterisation is accepted, it follows that the Department processing the Applicant’s application for Australian citizenship would not have recommended the grant.
Mr Barrington said that there must be certain acts which are of sufficient weight and seriousness to mean that the person is not of “good character.”
Mr Barrington noted that Mr Newton assessed Mr Trutmann as a “low risk” but not no risk of re-offending. He submitted that any risk is unacceptable. Mr Barrington submitted that the Applicant’s contrition in giving oral evidence appeared genuine and he has remained offence-free since 2005, but that is not sufficient to counterbalance.
In terms of the Minister’s discretion, Mr Barrington submitted that it is a powerful factor that Mr Trutmann would not have obtained citizenship had his criminal actions been known. He has an ex-citizen visa and is entitled to remain in the community. The Respondent accepts that he has lost certain entitlements: he cannot vote and cannot re-enter Australia if he leaves this country, but that it is not appropriate to take into account the prospect of deportation, because that is speculatory.
CONSIDERATION
Senior Member Walsh described revocation of Australian citizenship 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 Tribunal agrees with her description and adds that 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.
There are three questions for the Tribunal to decide. The first is: would Mr Trutmann be rendered stateless by the revocation of his Australian citizenship? If the answer to this question is ‘yes’, then the power to revoke is not exercisable under the Act. The second question is: are the requirements of the Act met in that, relevantly, the Applicant has been convicted of a serious crime by being sentenced to a serious prison sentence (as defined in the Act) and it would be contrary to the public interest for the person to remain an Australian citizen? If the answer to that second two-part question is ‘yes’, nonetheless the Tribunal must determine whether it is the correct and preferable decision to exercise the discretion to revoke Mr Trutmann’s Australian citizenship.
Would the Applicant be rendered stateless?
This is a threshold question, because as mentioned above, section 34(3) of the Act prevents the Minister cancelling the citizenship of a person based on 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., is rendered stateless.
Mr Trutmann was born in the Republic of Guatemala where his father was at the time working. His evidence was that his father was a Swiss citizen, as was his mother who acquired Swiss citizenship on her marriage.
The Respondent submitted that the Applicant therefore acquired Swiss citizenship by descent under Article 1 of the Federal Act on the Acquisition and Loss of Swiss Citizenship 1952 (Switzerland) by virtue of being born of Swiss parents. The Respondent submitted that, since 1 January 1992, Swiss citizens who voluntarily acquire another citizenship do not automatically lose their Swiss citizenship (noting that Mr Trutmann acquired Australian citizenship by conferral in 1993).
In the papers before the Tribunal, is correspondence between the Victorian Courts and the Swiss Consulate-General in Melbourne about the surrender of the Applicant’s Swiss passport when he was bailed. The Applicant in his oral evidence said he still holds a Swiss passport and had travelled on it.
In the Applicant’s written Statement of Facts, Issues and Contentions, at paragraph 8 it was submitted that “The Applicant acquired Swiss nationality through descent at the time of his birth (‘jus sanguinis’)”. In his oral closing submissions, Mr Hughan said that it was accepted that Mr Trutmann holds Swiss citizenship.
In his oral evidence, Mr Trutmann told the Tribunal he had been issued a Republic of Guatemala passport as a very young child, but he had more recently been told by family members in Guatemala that his entitlement to citizenship of that country had ceased. In submissions made to the Department of Home Affairs, the Applicant’s solicitors wrote (TD, p 90):
It is unclear whether, in addition to being a Swiss national, Phil is also a citizen of Guatemala on the basis of being born in Guatemala (‘jus soli’). We are instructed that inquiries made by Phil in relation to his Guatemalan citizenship status have resulted in no response from the requisite authorities.
The solicitor’s submission goes on to quote an article published by the Immigration and Refugee Board of Canada stating that a person who acquired another citizenship prior to 1996 lost his or her Guatemalan citizenship. However, there was a lack of authoritative information about the state of law, such as advice from the Government of Guatemala. The Tribunal cannot make a definitive finding about whether the Applicant still holds or has an entitlement to Guatemalan citizenship.
Finding
The Tribunal finds on the evidence that the Applicant holds citizenship of the Swiss Confederation. The bar in section 34(3) of the Act does not therefore apply as he would not be rendered stateless by the revocation of his Australian citizenship.
Has the Applicant been convicted of a ‘serious crime’?
It was not contested by the parties that the aggregate sentence imposed on Mr Trutmann by the County Court in December 2005 was a ‘serious prison sentence’ by virtue of section 34(5)(a) read with section 5 of the Act, and that offences were committed before the Applicant became an Australian citizen (section 34(5)(b)). If follows, therefore, that the requirements are satisfied of him having been convicted of a ‘serious crime’ under section 34(5).
Finding
The Tribunal finds the provisions of section 34(5) of the Act are met.
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 several 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.)
More recently, in Minister for Home Affairs v Waraich [2020] FCA 1513, Annastasiou J, at [43], endorsed the approach taken by Gilmour J in TRHL v Minister forImmigration and Border Protection [2016] FCA 3765, and 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 (‘O’Sullivan’) 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. The factors the learned Deputy President set out in that decision were urged on the Tribunal as relevant by counsel for both parties in this matter.
The factors Deputy President Sosso set out in NPRT adroitly summarise relevant things that ought to be taken into account by the Tribunal, with the obvious caveat that each case turns on its own factual circumstances and, as Tamberlin J said in McKinnon, the factors should be weighed carefully in the context of those circumstances, especially in a case which might be finely balanced.
The factors 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 nature and severity of the offence
Counsel for the Applicant appropriately conceded at the outset that the offending was very serious. The principal offending against the children in the boarding house occurred over a period of some eleven or so years, from January 1985 to December 1995. It took place when the Applicant was, if not in loco parentis, in a significant position of trust in relation to the victims. Parents entrusting their boys to the school relied on the institution to care for their sons. The school, in turn, placed trust in the resident masters in the boarding house to undertake their pastoral tasks properly and with due regard to the safety and well-being of the young students in their charge.
The Applicant’s breach of that trust was of the highest order. It may have commenced opportunistically, but it settled into a carefully calculated pattern of sexual abuse where particular care was taken by Mr Trutmann to target children who he deemed were heavy sleepers and therefore unlikely to become aware of his abuse of them.
The supplementary documents (Exhibit R2) were admitted into evidence without objection. Some were witness statements forming part of the Victoria Police Hand Up Brief in relation to the Applicant’s committal proceedings before the County Court. They also include material returned under summons from Victoria Police which includes witness statements. Some of these statements were the ones described by the sentencing Judge as victim impact statements. It is evident from some of these statements and from the comment made by one of the students to the Applicant (which he conceded was made) – that he wanted the abuse to cease – that the boys were not, in fact, always asleep.
For instance, one former student in a statement to police (STD, pp 237-238) said that he had his own room in the boarding house. After lights out, the Applicant would come into the room and talk to the student about his day and, while doing so, “slip his hand down the inside of my boxer shorts and play and fondle with my penis”. The student goes on to say that he “never realised what he was doing at the time and I thought it was just normal like cuddling.”
Another former student (STD, p 250) stated:
The sexual abuse by Philippe TRUTMANN started in either 1985 or 1986 but I can’t be certain. I think it is more likely that it started in 1986. I was about 12 or 13 years old. On the first occasion I was asleep in my room. It was winter and I was wearing full length flannelette pyjamas. I don’t know at what point I awoke but when I did I saw that he was in my room and next to my bed closer to the foot of the bed. He was kneeling on the floor. The lights were off but my door was open and light from the corridor was coming into my room. The light in the corridor was always on. I was certain it was Mr. TRUTTMANN.
Mr. TRUTMANN was fondling me through the fly front of my pyjama pants. I pretended to be asleep the whole time he was in my room because I didn’t know what to do. I was so embarrassed I rarely opened my eyes whilst he was in my room. Mr TRUTMANN was squeezing or pinching the end of my penis….
This student went on to refer to another similar incident “only some days later”. He then wrote:
At some point after Mr. TRUTMANN started coming into my room at night I started to close my bedroom door at night and also rigged up a warning system in my room. I started tying wool around my door handle then around a towel rail on the wardrobe and then to my chair and then tied it onto my foot or toe. I thought that if my door was opened that the chair would fall over and move my foot to wake me up and also it would create a disturbance. When I had done this Mr. TRUTMANN never came into my room.
After some days this student removed his warning system because he preferred to sleep with the door open. In his statement he then records three other times the Applicant came into his room. He had started wearing his pyjama pants back to front to prevent access, but recorded the Applicant trying on two occasions to roll him over as he was falling asleep. This student said he told a fellow boarder about the Applicant coming into his room. His classmate told him not to say anything to anyone.
Another student wrote a statement to the police in 2005 (STD, pp 137-138):
In 1994 I started school…I was in year 5 and 10 years of age. I was a full-time boarder at the school…I remember a bloke, Trodey, who was the assistant boarding students [sic]. Trodey used to put boarders to bed.
In 1995 I moved to a single room… I was in year 6 and 11 years of age. Trodey was down the hall in the quarters and three times a week he was in charge of my level. Trodey’s duties were to get people out of bed in the morning, put people to bed of a night and keep general order.
Trodey didn’t start until April because he was sick….From April 1995, before and after lights out Trodey used to come into my room and massage me. This was initially my shoulders and back. Not long after that he started to massage my shoulders and back but after a while he started letting his hands wander. He put his hands down my pants and stuff like that. What I mean is that he massaged my penis area – he masturbated me.
I didn’t give him permission to do that. I think he trusted that I wouldn’t say anything. It used to go on for about 20 minutes to ½ an hour at most I didn’t ejaculate and can’t remember what I thought or how I thought at the time. This happened about 10 times during the year and only stopped when I left at the end of the year in December. I have never told anybody about this until about 2 weeks ago when I told my girlfriend [name redacted] what had happened. I now feel angry at Trodey and the school for letting it happen. I feel angry towards Trodey and also feel sorry for him because he must be sick and has major issues to do these kinds of things.
I have drawn a map of the [redacted] Boarding House in regard to where my room was situated and where Trodey’s room was. I have signed this drawing.
It can be reasonably concluded that the boarders who were aware of the sexual abuse were frightened to say anything, given the power relationship that existed between them as young students and the Applicant as a resident master. It is speculation, but possible, that some may have known what happened to one student who complained to more senior staff.
Among the particularly affecting statements in the papers before the Tribunal are statements from former boarders who had now been advised they were abused by the Applicant. The oral evidence of the Applicant is that he identified the students he had abused by showing police photographs of them in school yearbooks. It can be inferred that the police then contacted the former students he identified.
One statement (STD, p 552) reads:
I have been told by the police that whilst I was at this campus former boarding house assistant Philippe TRUTMAN fondled my penis 30 to 40 times.
I have no recollection or awareness of the conduct occurring and I would not have consented to this behaviour. This has affected me psychologically and emotionally and it is hard to believe that someone has violated me in the way that has been brought to my attention. I certainly would not have consented to this behaviour.
Another former student wrote (STD, p 556):
I have been told by police that whilst I was at this campus former boarding house assistant Philippe TRUTMAN fondled my penis 2 times.
I have no recollection or awareness of this occurring and I would not have consented to this behaviour. This has affected me; it is always playing on my mind. I am unable to sleep at nights.
Another former student wrote (STD, p 560):
This has affected me in that I feel violated, angry and confused because it was something that was out of my control. Finding out what had happened to me after all these years has caused me some distress. I only hope Trutman’s actions didn’t contribute to the suicide of my best friend [redacted] who was a day student at [the campus] who boarded there from time to time.
Another former student wrote in his statement (STD, p 565):
This has affected me in no way. I don’t believe I was assaulted in any way. I will state that being named as a victim was a huge shock but no emotional trauma was sustained.
In a statutory declaration (STD, p 571) a former student wrote:
The last few months have seemed like a nightmare. Finding out that something had happened to me as a child and to not have any recollection of it has been a truly frightening experience.
At STD, p 572, a victim wrote:
This has affected me because it completely changed the nature of my childhood. Up until recently I had a happy schooling. But to find out I was touched inappropriately by someone I had trusted is truly sickening.
At STD, p 574, one victim wrote:
Upon being informed of the sustained abuse committed against me as a child (and subsequently learning from one of my close friends that he too had been abused by Philippe), I experienced an initial period of shock and had difficulty processing the information. In choosing to communicate the news to my family (in particular my wife, mother and sister) the emotional trauma has been amplified. Whilst I’ve benefited from their sympathy and support, witnessing and experiencing their grief, anger, frustration and confusion has been very difficult.
I immediately sought the assistance of a counsellor who had experience dealing with similar cases. I had two productive sessions with the counsellor, both of which were understandably traumatic. Having been presented with this information at a time of genuine happiness and security in my life, the counselling process presented an unexpected result. My counsellor and I identified some behavioural aspects that I exhibit which may or may not be related to the abuse.
…
There are a number of questions I have which will never be answered – this is frustrating and futile. I will never truly understand why Philippe betrayed my trust and apparent friendship. I am forced to accept the explanation that he is a paedophile who repeatedly engineered opportunities to abuse innocent children and that I am a victim who, like many others, respected him and saw him as a surrogate father-figure.

Another victim wrote (STD, p 585) in a statutory declaration:
I have attempted suicide on average two times a year for the last 15 years. I am a very goal orientated person and it increases my pain and depression being unable to achieve the goals that I aspire and plan for myself.
In this case, appended to the statutory declaration was a letter from a consultant psychiatrist referring to his patient progressing from a state of near psychosis with very high-risk suicidal behaviour in the first five years of treatment. The psychiatrist went on:
His presentation featured signs consistent with having been sexually molested during early adolescence, allegedly by a former boarding house tutor, at [redacted], where he attended. These signs include a pervasive angry and unstable mood, with intense self-destructive and suicidal tendencies; a mental and emotional dissociation under stress, with blackouts of short-term memory, difficulty in entering into mature, trusting relationships with others, a general distrust towards figures of authority, and distancing from peer groups…
In a statutory declaration (STD, p 597) a former student wrote:
At the time I was not sure what was happening as I was 12 years old in 6^th grade. It happened during 1994 to 1995. ‘Trudy’ (that was what we had called him) would sit beside me while I was in bed after all the lights were off. He would ask me about my day, then his hand went inside my blanket, into my boxer short and he would stroke my penis… He chatted while he was doing it. At the time I simply did not know what to make of or how to react. I simply continued talking to him. Was he just ‘playing’ with me? Was that an act of love/kindness? There were several instances that hurt me, but I did not say anything. There was no erection on my part as I was naïve and clueless of his behaviour…. I don’t know how exactly how many times he did that to me, but it went on until I moved [to another campus of the school]. I did not mention this to anyone. I was a little afraid, but more towards feeling confused. The next day both Trudy, other students and I acted as if nothing had happened. I still continued to trust him.
As years went by, I managed to forget about him, however sometimes I would wonder to myself what exactly was going on at that time. As I mature[d] I started to realize it may have been an indecent act, although I tried not to ponder and think about it as it made me anxious, not until [a named police officer] called me which was several months ago, briefed me of the situation that it had the full impact on me – I was sexually molested. It was a shock as I did love Mr Trutmann deeply. He was like a father to me. He would play with me, hugged me, helped me with my studies, let us play games on his computer, play chess with me, gave me and other students permission to watch T.V. in his room, consoled me when I was feeling down and homesick. After the phone call from [redacted], I felt depressed, anxious and betrayed. It was like the past had come to haunt me. However I did attempt to rationalize to myself that the event had happened ten years ago and I should just move on. In retrospect, after the indecent act I became somewhat a little insecure of myself and others.
Noting Mr Trutmann’s oral evidence at the hearing was that his “aim” was that the victims were asleep, the Tribunal is not inclined to accept the Applicant’s evidence that all the victims were asleep during the incidents of abuse. The statements provided indicate that some were not, and were very aware of what physically was taking place, even if that awareness was in the context of the emotional immaturity of a prepubescent male.
Relevantly, the sentencing Judge said in his remarks (TD, p 43):
This sentencing process must be carried out on the basis that the boys were asleep or that you believed they were. I find that on the balance of probabilities. It is clear, however, from the psychological material tendered on your behalf and, again, admissions you have made to those professionals, that that may not have always been the case. However, I make clear that, for these sentencing purposes, I proceed on the basis that it was the case.
The Tribunal cannot, and does not, impugn the convictions or the findings of the Court which form the basis of the sentencing, but it also notes that His Honour qualified his finding in the third sentence of this extract of the sentencing remarks. The Tribunal also cannot ignore the oral evidence of Mr Trutmann agreeing that one victim had told him he did not want to be sexually violated the way that had happened the previous night, and the contents of several victim impact statements referring to the victims being awake and aware of being sexually touched.
In his evidence at the hearing, Mr Newton rightly conceded that this offending involved sexual violence. He went on to express the view that the conduct was not “aggravated” because the victims were asleep. The Tribunal regards the fact that there was, at least in some cases, no ‘coercion’ because some of the victims were asleep during the abuse, as no mitigation of the sexual violence visited on the children at all.
The Applicant made open and complete admissions to the police when they first questioned him, not only about the principal offending but also about his possession of child exploitation material. He pleaded guilty at Court, and those pleas led to a discount in his head sentence because the victims were spared the ordeal of a trial and the trauma of having to give evidence.
The Tribunal notes that the subsequent plea of guilty at the Magistrates’ Court to the singular complaint was also an admission by the Applicant which spared that victim from giving evidence. However, it must be remembered that this victim had been expelled from the school for first raising a complaint, so he was not spared, before this conviction, the trauma and unfairness visited upon him and his family. The effect on him was set out in a statement (STD, p 477). His mother wrote that, even today, this student would not talk about what happened to him. She said he has suffered greatly from depression and has been on medication for that condition, and has had low points. It is clear to the Tribunal that his was a classic case of justice initially denied, but ultimately the complainant was vindicated.
In relation to the possession of the child exploitation material, the papers reveal that some of this material was referred to as “particularly deviant”. The police statements (STD, p 292) refer to the material including images of children engaged in sexual acts with adults.
The Applicant conceded in his oral evidence that, in terms of the principal offending, while he was convicted of 41 counts, these counts cover, potentially, “hundreds” of actual instances of physical abuse. When the Applicant was examined by Professor Graham Burrows, AO, professor of psychiatry, in September 2005 (STD, p 518), Professor Burrows recorded:
I asked him to discuss how many male students he had been involved with and he said he did not know, it could be 40 or 50, sometimes it was multiple with one and sometimes only once, as in his statement. He would do it when they were asleep, he could touch up to 3 or 4 per night and lasting three quarters of an hour, approximately about 10 minutes each….He did not think the boys were awake at the time. He said he did not wish to do them any harm. He did admit to placing his finger in the anus of one student on one occasion, but no others.
The large number of victims and the larger number of individual incidents of abuse brings the scope of the offending of this nature to the very highest level.
Would the Applicant have been granted citizenship had the Department known of his offending?
A copy of the presentment to the County Court in relation to the principal offences was before the Tribunal (STD, pp 527- 535). As the sentencing Judge mentioned, the dates of offending were representational, presumably linked by whether the victim was a boarding student at the time. In terms of the Gross indecency convictions, counts 1 to 4 cover the period between 1 January 1985 and 31 December 1985. Counts 5 to 14 cover the period between 1 January 1988 and 31 December 1988. Count 15 covers the period between 1 January 1988 and 31 December 1990. Count 16 covers the period between 1 January 1989 and 30 December 1990. Count 17 covers the period between 1 January 1990 and 4 August 1991. Counts 18 and 19 cover the period between 1 January 1989 and 31 December 1989.
In terms of the Indecent act offences, count 20 covers the period between 1 January 1992 and 31 December 1992. Count 21 covers the period between 6 August 1991 and 31 December 1993. Counts 22 and 23 cover the period between 6 August 1991 and 31 December 1992. Counts 24 to 30 cover the period between 1 January 1992 and 31 December 1992. Count 31 is for the period 1 January 1993 and 31 December 1994. Count 32 is for the period 1 January 1992 and 31 December 1992. Count 33 is for the period 1 January 1992 and 31 December 1993. Counts 34 and 35 are for the period between 1 April 1995 and 31 December 1995. Counts 36 to 41 are for the period between 1 January 1994 and 31 December 1995. Count 42 for the child pornography material is dated 6 April 1995. As mentioned above, the conviction at the Magistrates’ Court on a single count of Indecent assault related to offending in the year 1989.
The Respondent submitted (presumably from Department records) that Mr Trutmann applied for Australian citizenship on 7 September 1993. On 10 December 1993, he acquired citizenship under Division 2 of Part III of the (old) Australian Citizenship Act1948. By force of Subdivision B of Division 2 of Part 2 of the (current) Act, he was taken to be an Australian citizen. On the date ranges in the presentment, each of the 19 Gross indecency offences had been committed before this grant.
In relation to the Indecent act offences, 11 of the counts had been committed before 10 December 1993. Three of the counts straddle this date. The remaining eight counts in relation to this crime were committed after the grant. The 1989 count dealt with by the Magistrate is before the grant, and the child exploitation material offence dates from 2005.
It is clear to the Tribunal that the Applicant would not have been granted Australian citizenship by conferral had his criminal activity been known, or became known, to an officer of the Department making the requisite recommendation to the Minister at the time. It is a characteristic of the circumstances of this particular offending that, while the principal offences were committed over some 11 years, the Applicant was not brought to account until 2005, around ten years later.
In his oral evidence, Mr Trutmann said he ‘has no intention of abusing the trust’ given him by Australian citizenship. However, he was undertaking a persistent campaign of offending at the very time he was considered for, and granted, citizenship, and was abusing that trust.
The 1948 Act (at section 13(1)(f)) required that a person seeking a certificate of Australian citizenship satisfy the Minister ‘he is of good character’. It is not comprehensible that the Applicant would have satisfied the character provisions under the old Act for the grant of Australian citizenship, had his offending been known.
Did the Applicant plead guilty to the offences and what was his general conduct during the criminal proceedings?
As is set out above, the Applicant pleaded guilty to all the offences. From his oral evidence and the interview record, he was immediately co-operative with the police and aided their investigations by identifying photographs and names of students he admitted to abusing. He also told them about the material on his home computer and on the computer disks which were seized and then analysed by forensic police officers. On the evidence, he also pleaded guilty to the matter that was dealt with by the Magistrates’ Court in 2011.
The Applicant’s general conduct during the criminal proceedings is to his credit. As the Judge pointed out, he made full and frank admissions which were against his self-interest and presented guilty pleas at Court.
Has the Applicant shown remorse for the offending and true contrition?
Mr Newton expressed the opinion that the Applicant shows genuine remorse. There is no evidence of any further offending (of any kind) since Mr Trutmann was released from prison. The prison reports before the Tribunal show that his behaviour was that of a model prisoner. He undertook productive duties within the prison system and was recognised with some positions of trust. He was granted parole and undertook a course on release. There is no evidence before the Tribunal of any breaches of parole or of non-compliance with his Register obligations.
There is, however, a matter of concern to the Tribunal. The Applicant gave evidence at the hearing that his victims were all asleep. That is also what he told Professor Burrows and Mr Newton. When prompted about the student who said to him one morning that he “did not want to do that gay thing again”, Mr Trutmann readily admitted that conversation occurred. The Tribunal notes that in the September 2005 report of Mr Peter Billings, clinical psychologist, prepared for the Applicant’s lawyers in relation to the County Court sentencing (STD, p 511), Mr Billings wrote:
The boy who suffered digital penetration of the rectum went to Philippe’s office the following day and said to him that he didn’t want to do “that gay thing” again. Philippe said he acknowledged this and assured the boy that he wouldn’t.
He then said that it did not affect his subsequent relationship with that boy, and he told the Tribunal that, when that particular student was in more senior grades, he invited the Applicant to an annual school dinner. There are two things I would say about this. The first is that it gives the impression that the Applicant felt, because of the subsequent friendly conduct to him from this student, that the abuse did not have a continuing effect on that particular victim. The second point is that it is self-evident that his maintaining that the victims were all sleeping during the abuse is not supported by the facts. This student clearly knew what had occurred, by the very fact that he raised the matter the next day. Supporting that this is a misconception are several impact statements other victims have given, some of which are reproduced above. They show that some of the victims were aware of what was being done to them, in terms of being physically violated, even if – because of their immaturity – they did not have an appreciation of the import of the acts against them.
The Tribunal does not therefore accept that the Applicant has shown complete contrition, and concludes that, at least to some extent, he continues to place a complexion on this offending by saying the victims were all asleep. Whether that is to somehow minimise the impact of what he did, I cannot say. But it does indicate to me a less than frank appreciation, now some 26 years on, by the Applicant of how he exploited a position of power or, as the particulars in the presentment relating to the gross indecency offences put it (STD, p 527):
This act of gross indecency was committed when [name of complainant] was generally or at the time under the care, supervision or authority of Philippe Vincent TRUTMAN[N].
(Emphasis added.)
The length of time since the offences and since the Applicant’s conviction
The span of all the offences is from the beginning of 1985 to April 2005, and the convictions for the principal offences were in December 2005, and for the single 2009 offence, in September 2011. Therefore, it has been some 26 years since the Applicant last physically offended and some 17 years since he last offended. There is no evidence before the Tribunal, or allegation, that he has re-offended in any manner since April 2005.
The risk of re-offending
Mr Newton’s opinion was that the Applicant presents a “low risk” of re-offending. On all the evidence, I am inclined to accept this assessment. Mr Trutmann is not in a position where he interacts with children (and in fact his reporting requirements prohibit unsupervised access). He is in an apparently stable and loving relationship and has held down steady employment. He has a small but supportive circle of friends, and the support of his sister and his frail mother.
The Applicant was very candid in his evidence, and generally was not evasive in his responses. However, as mentioned above, one particular concern in his evidence was what I might term his ‘containment’ of the boarding house offending by a narrative that the students were always asleep. He told the Tribunal his “aim” was that they were asleep and that he was “fairly sure” they were asleep. That simply is not true, in at least one admitted case. It was also disturbing that he said he did not appreciate that the production of child exploitation material (and it is not contested that it was graphic deviant material) was not a victimless crime. He said he only understood that the children depicted were, in fact, victims after he had done the sex offender course in prison.
Mr Trutmann struck me as an intelligent man who did not lack an appreciation of subtleties or nuance. The fact that he constructed strategies to hide his offending at the boarding house over 11 years is one illustration of that. He amassed a large quantity of child pornographic material (much larger than what the police seized, on his evidence, since he had several times destroyed computer disks containing images in an attempt to break his obsession). Yet he apparently did not connect the fact of children being photographed and filmed doing depraved acts or being raped, with the commercial element that lies behind the production and distribution of such products. This is a matter of concern.
While the Tribunal accepts there is a “low risk” of re-offending, it is a risk conditioned on the preventative factors in place in Mr Trutmann’s life, both legislatively through the Register, and in his personal relationships. It is also a risk that I find, while low, is not negligible. The emotional and physical devastation that would result from any recidivism means that even a ‘low’ risk is not an acceptable risk.
Whether the Applicant has re-established his good character
The concept of ‘good character’
The Courts have considered the term “good character” on several 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.

In Re: Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326 (‘Prasad’), Deputy President McDonald said, at [7]:
In Lachmaiya and Department of Immigration and Ethnic Affairs [1994] AATA 27; (1994) 19 AAR 148, the Tribunal decided that “the good character provision” had broader meaning than was commonly attributed to it in criminal trials. The Tribunal, in that case, quoted from the Macquarie Dictionary, as to the definitions of character:
“1. The aggregate of qualities that distinguishes one person or thing from others; 2. Moral constitution, as of a person or people; 3. Good moral constitution or status; 4. Reputation; 5. Good repute; 6. An account of the qualities of peculiarities of a person or thing.
A similar approach was taken by the Tribunal in Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (decision of Deputy President Forrest, Decision N(9753, 27 September 1994). A decision about whether a person is of good character requires a consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.
The decision in Prasad was cited by the Respondent, who submitted that the Applicant’s conduct is a “paradigm example” of the last sentence in the above quote.
Mr Hughan submitted that it is not correct to say that some offending is so serious that irrespective of a person’s subsequent behaviour, it indelibly stains a person’s character such that it is not possible to re-establish good character. The Applicant quoted the decision of Latham CJ in Re Davis [1947] HCA 53; (1947) 75 CLR 409 (‘Davis’):
It was submitted that the appellant, by his good behaviour since 1934, had redeemed himself, and that it was not unreasonable for him to take the view in 1944 and 1946 that he was then a person of good fame and character. It may be that he had by that time become a person of good fame, i.e. of good reputation among those who then knew him. But intrinsic character is a different matter. A man may be guilty of grave wrongdoing and may subsequently become a man of good character. If the appellant had frankly disclosed to the Board and to the two solicitors the fact of his conviction, that disclosure would have greatly assisted him in an endeavour to show that he had retrieved his character. But his failure to make such disclosure in itself, apart from the conviction, excluded any possibility of holding that he was in 1946, or had become in 1947, a man of good character.
(Applicant’s emphasis.)
The Tribunal observes that Davis is not a particularly useful authority in this matter. Mr Davis’s situation was that he had been convicted of a single historical count of burglary and had gone on to study law and be admitted to the Bar. His failure to disclose the single offence to the Bar authorities was the point at issue, which led to his name being struck from the Bar roll. These facts mean that the context of Davis is relatively narrow, therefore, about professional standards expected of members of the Bar. In contrast, in the case before the Tribunal there are many serious sexual offences against children, carried out over a long period of time.
It is certainly correct 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.
The Applicant’s Statement of Facts, Issues and Contentions drew attention to the conclusions of Deputy President Sosso in NPRT. The Tribunal observes that the circumstances surrounding the applicant in NPRT were highly unusual. In that case he had committed three sexual offences against his young daughter. As a result, his wife divorced him and he had no further contact with the victim. He later remarried and with his new wife spent years overseas engaged in non-paid missionary work and teaching English, and subsequently humanitarian aid work, with no further offending. In terms of the conclusions drawn in that decision as having common features with this matter, the Tribunal does not accept there is commonality, except for the lack of re-offending.
There are some factors that support a conclusion that Mr Trutmann is now of good character, such as the evidence of Mr HL and his friend Mr XF, but the Tribunal’s conclusion is that the overwhelming nature of the offending against vulnerable children in his care, in terms of possibly ‘hundreds’ of instances of sexual abuse, cannot support a conclusion of that nature. The Tribunal finds that the magnitude of the offending prevents a positive finding that the Applicant is of good character.
What is, and what is not, before the Tribunal
In the papers were several letters of support for the Applicant. Several referred to knowledge of Mr Trutmann’s criminal offences and to his conduct after completing his prison term in obtaining employment and contributing positively to the community. Some, however (e.g., TD, pp 77 and 81) were under the impression that revocation of Australian citizenship meant the Applicant would have to leave Australia. As the Tribunal made clear in the hearing, that is not a consequence of the Minister’s decision, nor is deportation a power exercisable under the Australian Citizenship Act.
In the event that the Tribunal affirms the decision, the Applicant would continue to hold the non-citizen visa he has by operation of law. That visa is cancellable, but it is speculation as to whether a separate decision would in the future be made by the Minister or a delegate to initiate a cancellation, and such speculation is not only fruitless but not a question relevant to this administrative review. If consideration was given to cancellation, or the visa was cancelled, the Applicant would be entitled to avail himself of the same apparatus of administrative and judicial review as any other non-citizen whose visa is cancelled onshore, and would be able to call in aid the length of time he has resided in Australia, his frail mother and his family links, and other factors.
CONCLUSION
As mentioned above, because the Tribunal has found that Mr Trutmann is a Swiss citizen, the power to revoke his Australian citizenship is not debarred by the potential consequence of statelessness.
Some of the oral evidence and written statements refer to potential implications for the Applicant’s partner, Mr XL, the Applicant’s sister, and his mother if his citizenship is not restored. The concept of whether it is “contrary to the public interest” for a person to remain an Australian citizen is not directed inward to the personal circumstances of a person whose citizenship has been revoked or where revocation is being contemplated. It is, in contrast, directed outward, to an assessment of the interests of the Australian community at large.
The High Court said in O’Sullivan that the notion of the “public interest” should be considered in the context of the relevant statute. Mr Trutmann applied to be a citizen under the now repealed 1948 Australian Citizenship Act. Section 13(1) provided a discretionary power for the Minister to grant a certificate of Australian citizenship to a person who satisfied the Minister, among under things, that he or she is of good character (section 13(1)(f)).
The current 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. In September 1993, when Mr Trutmann applied for Australian citizenship, on his own admission, he had been sexually abusing boys in his care for just short of eight years. He continued to do so for more than two more years. His offending campaign of child sexual abuse was, without hyperbole, clandestine and predatory. It lasted more than a decade. Mr Trutmann told the Tribunal he knew – at the time – it was both legally and morally wrong. He had no regard for the obligations to obey the law and respect others in society that is inherent in the grant of citizenship. The effect of the offending, years later, on many of the victims is starkly set out in the victim impact statements, extracts of some of which are in these reasons. Many of these men have been adversely affected for life.
The offending is of a nature that the Tribunal is confident to say the broad Australian public would consider abhorrent. What the Applicant was doing in his campaign of sustained sexual abuse was directly assaultive to the values of the Australian society he was seeking to fully join as a citizen. As the Tribunal stresses above, he was committing these criminal acts at the very time he applied for, was considered for, and was granted citizenship. The Tribunal is satisfied that it would be contrary to the public interest for him to remain an Australian citizen.
Finding
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. Having made that finding, the Tribunal also concludes that the preferable decision is that the discretion in section 34(2) of the Act should be exercised to revoke the Applicant’s citizenship. It therefore follows that the reviewable decision made by the Minister is affirmed.
DECISION
Pursuant to section 43(1)(a) of the AAT Act, the Tribunal affirms the decision under review.

195. I certify that the preceding 194 (one hundred and ninety-four) paragraphs are a true copy of the written reasons for the decision of Senior Member D. J. Morris

..................[sgd]......................................................
Associate
Dated: 6 April 2022

Dates of hearing:

8 and 9 March 2022

Counsel for the Applicant:

Mr Greg Hughan

Solicitors for the Applicant:

Clothier Anderson Immigration Lawyers

Counsel for the Respondent:

Mr Jonathan Barrington

Solicitors for the Respondent:

Mills Oakley Lawyers

Dates of hearing:	8 and 9 March 2022
Counsel for the Applicant:	Mr Greg Hughan
Solicitors for the Applicant:	Clothier Anderson Immigration Lawyers
Counsel for the Respondent:	Mr Jonathan Barrington
Solicitors for the Respondent:	Mills Oakley Lawyers