Watson and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 322
•30 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 322
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2003/1325
GENERAL ADMINISTRATIVE DIVISION ) Re DAVE WATSON Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Deputy President J Block Date30 March 2004
PlaceSydney
Decision The decision under review is affirmed
[Sgd] Mr J Block, Deputy President
CATCHWORDS
CITIZENSHIP –– Applicant refused citizenship on the grounds of character – section 13(1)(f) of Australian Citizenship Act 1948 – Applicant convicted of indecent assault in New Zealand and imprisoned for 4 years – Applicant failed to state conviction on incoming passenger card – special category visa – Applicant not of good character – decision affirmed
Migration Act 1958 s 234
Mlinar and Minister for Immigration and Multicultural and Indigenous Affairs (1997) 48 ALD 771
Lachmaiya v Department of Immigration and Ethic Affairs (1994) 19 AAR 148
“SROO” and Minister for Immigration and Multicultural Affairs [2000] AATA 999
Minister for Immigration and Multicultural Affairs v SRT (1999) FCA 1197
REASONS FOR DECISION
30 March 2004 Deputy President J Block PART A – INTRODUCTION, PRELIMINARY AND GENERAL
1. The decision under review is the refusal dated 4 August 2003 by the Respondent of an application for Australian citizenship made on 22 August 2002 by the Applicant, and in which he sought Australian citizenship for himself and his daughter, Annie Allison Mendelssohn (“Annie”).
2. The Applicant was self-represented. Mr G Peek of the office of the Australian Government Solicitor appeared for the Respondent. The Tribunal had before it the T-documents lodged in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 together with exhibits as follows:-
· Exhibit A1 is a batch of school reports in respect of certain children who are referred to in these reasons;
· Exhibit A2 is a report by the Department of Community Services dated 22 March 2001, concerning the children referred to in the first paragraph of that report and which reads as follows:-
“I am writing in reply to your request for a report in relation to an update on the following children:
Tui Grace Mendelssohn aka Tuckwell DOB 02/06/1993
Annie Mendelssohn aka Tuckwell DOB 18/03/1996
Elizabeth Tuckwell aka O’Connor DOB 17/01/1998
Sarah Jasmine Parry DOB 10/06/1986”.
· Exhibit R1 consists of a number of court orders granted in New Zealand. They indicate that orders preventing the removal of Annie, Elizabeth Rose O’Connor (“Elizabeth”), Sarah Jasmine Parry (“Sarah”) and Tui Grace Tuckwell (“Tui”) from New Zealand were granted on 29 November 1999; they indicate also that restraining orders were granted against the Applicant and Herbert Thomas Potter.
3. Oral evidence was given by the Applicant, Mr Steven Smith and by Mr J Groom a consulting psychologist practising in New Zealand and in the case of Mr Groom by telephone link to New Zealand.
4. The Respondent’s Statement of Facts and Contentions dated 17 February 2000 contains an admirable summation of the Respondent’s case; (although this comment should not be regarded as a criticism, it might have been improved by the inclusion of a chronological survey of relevant events; as the case progressed it became clear that the timing of a number of events was important). That Statement of Facts and Contentions by the Respondent is set out in full as follows:-
“FACTS
1.The applicant, "Dave Watson", a national of New Zealand, was born as David Munro Walker Mendelssohn on 28 June 1944 (page 117).
2.On 3 February 1993 the applicant was sentenced by the High Court of New Zealand, under the name David Munro Walker Mendelssohn, in relation to three convictions for indecent assault on girls under 12 years of age, and two convictions for indecent assault on girls under sixteen years of age. He was sentenced to a cumulative term of imprisonment of 4 years.
3.In passing sentence, Hammond J commented, "You were a senior member of the Centrepoint Community at the time of the assaults". He referred to the applicant being influenced by Herbert Potter, "the guru of that community" but found "there is also no doubt that you enthusiastically embraced that philosophy; and that on our own evidence at your trial, your enthusiasm continues unabated." (page 23). He also found "you chose, at least at the time to which your convictions relate, to extend your sexual activities to at least the three complainants who gave evidence at your trial" (page 23) and proceeds to gives details of the offences, which dated between late 1979 and the early 1980's. (page 24). He records that at trial the applicant "insisted on cross-examining all the complainants in person in minute detail - an ordeal which one of the victims rightly described as being extremely traumatic and abusive..." (page 25) and contemplates the applicant was in "outright denial" in relation to his offences. (page 25).
4.The applicant was released, by operation of New Zealand legislation, on 1 February 1995. (page 31) He was recorded in The 1996 Paedophile and Sex Offender Index (T3).
5.On 28 November 1999, Annie Mendelssohn, Elizabeth Rose O'Connor, Sarah Jasmine Parry and Tui Grace Tuckwell arrived in Australia under the supervision of their mothers, Allison Tuckwell and Virginia White, and have remained here since. Sean O'Connor also arrived in Australia on 28 November 1999 in their company.
6.On 29 November 1999 the District Court of New Zealand made orders under the Children, Young Persons and Their Families Act 1989 (New Zealand) preventing the removal of Annie Mendelssohn, Elizabeth Rose O'Connor, Sarah Jasmine Parry and Tui Grace Tuckwell from New Zealand.
7.On 11 April 2000 the applicant arrived in Australia under a New Zealand passport issued in the name Dave Watson (page 14). On his inwards passenger card he answered, "No" to the questions:
"(a) Do you intend to live in Australia for the next twelve months? and
(b)If you are not an Australian citizen.... Do you have any criminal convictions?"
He indicated he was entering Australia as a visitor or temporary entrant, intending to stay for 6 months and that the main purpose for coming to Australia was "Visiting friends or relatives" (page 49). He was granted a Special Category (Subclass 444) visa (page 50). The applicant has not left Australia since.
8.From that time, it appears that the applicant lived at the Flowerdale Farm, Ewingsdale, and subsequently at another property at Alphadale. While his family and living arrangements are not clear, it would appear that on arrival in Australia he resumed living in a pre-existing "extended" family arrangement, comprising Allison Tuckwell, their two daughters, Annie Mendelssohn and Tui Grace Tuckwell; Virginia White, and her daughter Sarah Jasmine Parry; Sean O'Connor and his daughter to Ms Tuckwell, Elizabeth Rose O'Connor.
9.The applicant provided care to Sean O'Connor who was suffering cancer, until he died on 27 December 2000. At an interview on 6 February 2003, he claimed to have custody of his three children to Ms Tuckwell but to be living separately to her. He claimed at that time to be in a relationship with Ms Linda Bradley, the “care-giver” to Elizabeth O’Connor (page 34).
10.On 26 June 2000, the District Court of New Zealand made orders awarding custody of Annie Mendelssohn, Elizabeth Rose O'Connor, Sarah Jasmine Parry and Tui Grace Tuckwell to the Chief Executive, Department of Child, Youth and Family Services, under section 101 of the Children, Young Persons and Their Families Act 1989, The court also made a counselling order under section 83(2) of that Act in relation to the applicant and Allison Tuckwell, and a restraining order in relation to the applicant and Herbert James Potter. (The orders made by the court were formally discharged on 26 October 2001).
11. On 18 September 2000, DIMIA was alerted by the New Zealand Police to the applicant's former identity and criminal record in New Zealand (T9). On 28 September 2000 a DIMIA compliance officer, in the company of Byron Bay police officers, attended the Flowerdale Farm at Ewingsdale (pages 76-77) and notified the applicant of the respondent's intention to cancel his Special Category Visa and requesting any written comments or information by 13 October 2000 (pages 72-74).
12.On 13 October 2000, the respondent received written submissions from the applicant (pages 80-84) which were accompanied by "letters of support" from
(a) Allison Tuckwell (pages 85-86)
(b) Sean O'Connor (page 87)
(c) Virginia White (pages 88-90)
(d) Judith Tuckwell (page 91)
(e) David Tunnicliffe (page 92)
(f) Anne Lorraway (page 93)
(g) Mary O'Connor (page 94)
13.On 31 January 2001, the respondent received a further written submission from the applicant (pages 98-99) which were accompanied by further "letters of support" from:
(a) Emma McDonald, applicant's daughter (page 106)
(b) Sean McDonald (page 107)
(c) Christine Benge, Applicant's ex-wife (pages 108)
(d) Vicki Mendelssohn, Applicant's daughter (page 109)
(e) Anna Watson, Applicant's sister (page 110)
(f) Sarah Parry, Applicant's daughter (page 111)
(g) Lynda Bradley (page 112)
(h) Anna Dicker (page 113)
(i) Dr Mark Hamson (page 114)
(j) Dr David Godfrey (page 115)
(k) Amitatus Hospice Services (page 116)
and a report from
(l) John Groom, Registered Psychologist. (pages 100-105)
14.On 20 March 2001, the applicant was notified that a delegate of the respondent had elected not to exercise the discretion to cancel his special category visa. (pages 125-145) On 26 March 2001 the applicant signed an acknowledgment that he had been warned that the question of cancellation of his visa may be visited should he re-offend in the future (page 147)
15.On 22 August 2002, the applicant applied for Australian citizenship. (pages 5‑17) The applicant declined to submit any further evidence in support of this application. He was interviewed on 6 February 2003 (pages 33-36)
16.On 31 July 2003, the application was refused on the grounds the applicant was not of good character under paragraph 13(1)(f) of the Australian Citizenship Act 1948 (the Act) (pages 37-48).
17.On 18 August 2003, the applicant sought review of that refusal by this Tribunal (pages 3-4).
CONTENTIONS
18.The exercise of the discretion to grant a person Australian citizenship under subsection 13(1) of the Act is enlivened only if the decision-maker is satisfied that the pre-conditions listed in paragraphs 13(1)(a) to (g) of the Act have been met. The scope of the Tribunal's inquiry, and it's jurisdiction in the present application, is whether the applicant “is of good character" as required by paragraph 13(1)(f) of the Act.
19.Chapter 5 of the Australian Citizenship Instructions (the Instructions) provides guidance to decision-makers who are undertaking an assessment of whether an applicant meets the requirement in paragraph 13(1)(f) of the Act. The relevant provisions of Chapter 5 are:
5.4.2 The term 'good character' is not defined in the Act, so decision-makers should be guided by the ordinary use of the words in making assessments. It is the responsibility of the applicant to show that they are of good character. An applicant may be presumed to be of good character unless there is evidence to the contrary. In most cases, such evidence would be in the form of a serious criminal record, however, general conduct and associations may also be relevant.
5.4.3 If there is evidence to suggest that an applicant may not be of good character, the applicant must address this evidence and establish whether he/she is in fact of good character. An applicant's behaviour does not have to be faultless, but the aggregate of his or her qualities must be weighed against ordinary community standards of behaviour....
5.4.5 Under current policy the Minister has directed that very careful consideration should be given to the issue of whether an applicant is of good character, in accordance with paragraphs 5.4.6 - 5.4.15, if there is evidence that the applicant:
(a) has, at any time, been sentenced to:...
- a term of imprisonment of 12 months or more;
- 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more;...
(e) may have, or have had, an association with someone else, or with a group or organisation, whom the decision maker reasonably suspects has been or is involved in criminal conduct;...
5.4.7 Consider the seriousness of any offences committed by the applicant in the context of ordinary community standards. For example, crimes of violence, sexual abuse, drug trafficking, major fraud, armed robbery, crimes against children and other crimes which have incurred a prison sentence or sentences totalling 12 months or more are ordinarily considered to be serious, and should be given due weight in an assessment. Alternatively, less serious offences would be reflected by the leniency of a sentence and, possibly, in the remarks of the sentencing Judge, if available.
5.4.8 Convictions which pre-date the grant of a permanent visa may be given less weight than recent convictions because these convictions should have been taken into account in the character assessment for grant of the visa. Offences committed prior to the grant of a permanent visa that have been concealed from the visa decision maker should not normally be given less weight, and the fact of deliberate concealment may be an indicator of a continuing lack of good character...
5.4.11 Consider whether a crime was a one-off occurrence that can now be considered "out of character", or whether the person's criminal record shows repeated offences for which a conviction has been recorded and a pattern of unlawful behaviour which would suggest that the applicant is not of good character. Where the offence was not out of character, consider whether the applicant has been rehabilitated (see 5.4.13 – 5.4.17).
5.4.12 Consider whether there were any extenuating circumstances relating to the crime being committed. For example, a crime committed under periods of temporary psychological disturbance (including post-natal depression, battered wife syndrome, involuntary effects of medication) or under duress may be given less weight than if these circumstances did not exist. The onus is on the applicant to provide evidence supporting a claim of extenuating circumstances...
5.4.14 A person's previous behaviour as evidenced by a criminal record is relevant in assessment of character, but it is the person's behaviour and reputation at the time of the decision that has greatest relevance. Decision-makers must be satisfied that a person is of good character at the time of decision. A reasonable amount of time will need to have passed since the applicant has been free of obligation to the court to establish a pattern of good behaviour and thus justify a conclusion that a person is now of good character...
5.4.16 The applicant's behaviour since commission of a serious crime can in part be evidenced by the existence or otherwise of subsequent convictions. Other relevant factors that may be taken into account include whether or not the applicant has stable employment, his or her status in the community, involvement in activities indicating contempt/disregard or respect for the law or human rights. The onus is on the applicant to demonstrate that there has been a change in his or her character since last offending.
5.4.17 The applicant’s present reputation in the community should also be considered. The applicant could demonstrate a good reputation in the community by providing references from reputable Australians, particularly employers (but not family members), attesting to their good character and whether they support the application for citizenship. Decision-makers are entitled to give substantially more weight to statutory declarations than to other statements. Declarations from character referees that acknowledge the person's criminal background, and attest to a change in character since, should be given considerable weight.
20.The applicant has a criminal record of sufficient seriousness to warrant "very careful consideration" of his character, having regard to the nature of his offences (paragraph 5.4.7) and the sentence which was imposed in respect of them (paragraph 4.5.5).
21.Crimes against children are specifically addressed in paragraph 5.4.7 of the Instructions as representing the highest level of seriousness in terms of "ordinary community standards of behaviour". The nature and seriousness of the applicant's offences also weigh heavily in the process of the Tribunal assessing "the aggregate of his qualities" against these standards. (see leading statements on test by D P McMahon in Lachmaiya v MIEA, 19 AAT 148, at paragraph 34; Strangio v MIEA Case No 9593)
22.The applicant's offences appear to have been a pattern of conduct over a number of years (page 24; paragraph 5.4.11 of the Instructions). No evidence of any extenuating circumstances was referred to by Hammond J in sentencing the applicant for his offences. It has never been suggested that he suffered from temporary psychological disturbance as contemplated by paragraph 5.4.12.
23.Conversely, there is no direct evidence of any formal rehabilitation, counselling etc undertaken by the applicant. While the report of John Groom gives some evidence as to the applicant's present state of mind and interaction with family members his evidence is of limited assistance to the Tribunal in terms of the applicant's rehabilitation. It is of necessity based on the applicant's own history as to the nature of the offences based on observations and conversations with the applicant over a two day period.
24.The applicant protested his innocence at trial, (pages 24-25) and appears to maintain that the evidence against him was not impartial (page 103). These claims are directly inconsistent with findings made by the sentencing court, and the Tribunal has no power to go beyond them for the purpose of assessing the applicant's character (MIMIA v SRT [1999] FCA 1197).
25.As distinct from the question of cancellation considered by the delegate in early 2001, evidence of a compassionate or humanitarian nature is not relevant to the Tribunal's inquiry here as part of a general discretion to grant citizenship. Such evidence is relevant only to an assessment of the applicant's character, and so far as it could be found to demonstrate "rehabilitation" in respect of those crimes to a point where a finding of good character is justified (paragraph 5.4.14-17) The test of character is higher when being considered in relation to the grant of citizenship, having regard to the special rights and privileges it bestows, than in relation to the refusal or cancellation of visas. (Mlinar v MIMIA (1997) 48 ALD 771).
26.The respondent acknowledges the letters of support from Sean O'Connor, Anne Lorraway, Anna Dicker, Dr Mark Hamson, Dr David Godfrey, Amitatus Hospice Services as to role the applicant played as care provider to Sean O'Connor until his death on 27 December 2000. Their evidence goes to the potential effect on Sean O'Connor of removal of the applicant from Australia had his special category visa been cancelled in late 2000, and does not impact on the question of the applicant's character beyond the fact that he undertook this role for Mr O'Connor. While admirable, it is the sole example of such conduct put forward by the applicant, occupied a relatively short period of his life and was directed towards a close friend or family member. In the respondent's contention, it has no significant bearing in itself on the applicant's overall character for the purposes of paragraph 13(1)(f) of the Act.
27.Refusal of Australian citizenship would not, in any event, result in the applicant's removal from Australia, or have any practical impact on him or his family members. The terms of his current special category visa allow him to reside in Australia indefinitely, work and fully access social security and Medicare benefits and qualifies as a "permanent residence" visa for the purpose of the Act [pursuant to a general direction under section 5A(2) of the Act ]. It would appear that he has not been employed, and has been in receipt of Australian social security benefits, since he arrived in Australia. He indicated at interview on 6 February 2003 that he had bought a property in Lismore (page 36).
28.The applicant's application for citizenship appears to be the culmination of a long term plan on the part of the applicant and his extended family members to relocate to Australia, in defiance of immediately pending proceedings in the District Court of New Zealand in relation to the protection of the four children who arrived in Australia on 28 November 1999. This plan involved deliberate deception of Australian government authorities, and included the applicant obtaining his special category visa through failing to declare his convictions on his inwards passenger card. Paragraph 5.4.8 clearly suggests such conduct should increase the weight to be given to prior offences, despite them pre-dating the grant of a "permanent residence visa", particularly as they were concealed at the time that visa was granted, and procured the grant of the visa.
29.The remaining letters of support also largely go to the applicant's role as care provider to Sean O'Connor and his role within his extended family unit. They make no significant reference to the applicant's prior convictions, or to his character having changed since as contemplated by paragraph 5.4.17 of the Instructions. None of the referees are Australian citizens and, with the exception of members of the applicant's immediate extended family, none reside in Australia. Except for Mr Cunniliffe, they are all persons who could be said to be members of the applicant's family. Many of them appear to have been complicit in misleading Australian authorities in order for the applicant to relocate to Australia. None of the letters are in statutory declaration form. Subject to further evidence from these persons at hearing, the Tribunal should find their letters of support of limited assistance in assessing the applicant's character.
30.The Tribunal should conclude there is insufficient evidence on which it could find that the applicant has rebutted the presumption which flows from his criminal record, to a point which would justify a finding that he was of good character for the purposes of paragraph 13(1)(f) of the Act.”
5. If only as a matter of balance, I include a Statement entitled “Facts and Submissions from Dave Watson” sent under cover of a letter dated 24 February 2004, and which could serve as his Statement of Facts and Contentions. That statement reads as follows:-
“My argument is simple. The respondent, in making his decision, placed to (sic) much emphasis on my convictions and my failure to fill in my arrival card correctly and not enough emphasis on the other positive evidence.
1. I was convicted in December 1992 on five counts of sexual assault from events that occurred in the period 1979 to 1983.
2. I was released from prison in February 1995 and have not offended since. Neither did I offend in the time pre 1979 or post 1983.
3. It is true that I did not declare my offending on my arrival card. Because of the urgency of the situation and the necessity for me to be here as soon as possible with my friends and children I decided on that course of action.
In deciding not to revoke my visa the Minister decided that there were sufficient compassionate reasons for me to be allowed to remain in Australia to care for my friends and children.
While this does not condone my action, it confirms that the need for me to be in Australia was real and urgent.
If I had either declared my convictions or applied though (sic) official channels for a visa it is probable that it would have been declined or at best granted after some months. I did not consider either of these outcomes acceptable in the situation.
4. All of the evidence offered by me to the respondent indicates I am unlikely to re‑offend and I am otherwise a person of good character.
If all these factors are fairly assessed I believe that I, and subsequently my children and friends, should be granted citizenship of the country we have now made our home.
Further Information that may assist the Tribunal.
1. Citizenship applications.
When I applied to become a citizen I included my daughter Annie in my application. At the same time Lynda Bradley and Allison Tuckwell with her two children Tui and Elizabeth also applied to become citizens.
Both Lynda and Allison has(sic) been told by the respondent that their applications cannot be processed until the outcome of my application has been resolved.
2. My current living situation.
In June 01 Lynda Bradley and I purchased an 11 acre property near Lismore in Northern NSW. We are joint tenants in common with a half share each. The property has a large house, pool, large workshop/shed and 700 macadamia trees.
Lynda is prime care-giver for her son Lee (14) and Elizabeth O’Connor. I am prime caregiver for my children Tui Tuckwell and Annie Mendelssohn. The children attend the local schools and are fitting in and achieving well. The three girls stay with their mother, Allison Tuckwell, who resides in Byron Bay, every second weekend and Allison usually comes here on the other weekend.
At present it is my intention to live here at least until the children grow up and leave home
From the respondent’s position on Lynda and Allison’s applications it appears reasonable to assume that if my application is declined then theirs and the children’s will also be declined.
I believe it is important for children and their parents to be citizens of the country in which they will probably live most of their lives. That my actions of some 20 years ago should affect people who now associate with me, seems grossly unfair to say the least.”
6. At the submission stage, the Applicant took issue with a number of statements of fact contained in the Respondent’s Statement of Facts and Contentions. I intend to deal with those issues later in these reasons.
7. The sentencing remarks of His Honour Hammond J in the New Zealand courts (Tpg21 to Tpg29 inclusive) are of such relevance that they are set out at this early stage as follows:-
“Mr Mendelssohn, you were convicted by me on the 9th December 1992 on five counts of indecent assault. All these assaults occurred some years ago now at the Centrepoint Community. Because the trial was held before me, sitting alone, I have already given reasons for my verdicts. These are contained in my written reasons for the 9th December 1992.
The facts leading to your convictions are traversed in some detail in those reasons. I need only summarise them briefly here.
You were a senior member of the Centrepoint Community at the time of the assaults. You had a business background and the Community, on your own statements on oath at the trial, looked up to you for guidance in that respect. This gave you standing as a member of an inner group at Centrepoint. You adhered to what was then the accepted philosophy at Centrepoint: namely that sexual liberation is a “good thing” in interpersonal relationships. I have no doubt that you were influenced to some extent by Mr Potter, the guru of the Community, in that view. But there is also no doubt that you enthusiastically embraced that philosophy; and, on your own evidence at your trial, your enthusiasm continues unabated. You even went so far – quite unnecessarily – at your trial to call a current Centrepoint lover – apparently a married woman – to describe the continuation of your enthusiasm for this philosophy and the sexual practices followed in some detail. In fairness to you, you also said that neither you or the Community now condones sexual abuse or exploitation of children in any way.
Of course, what happens in private between consenting adults is, in general, entirely a matter for those persons in this country. But the law of this country was at the time of these particular offences, and is, very clear about the position of children. Children for this purpose are persons who are under the age of 16 years. They are rigorously protected by our law from sexual violation, indecent assault and other indecent acts.
You chose, at least at the time to which your convictions relate, to extend your sexual activities to at least the three complainants who gave evidence at your trial.
As to the first complainant, when she was four years old you performed oral sex on her in a caravan at Centrepoint. That was in late 1979, and was the basis of Count 1 on which you were convicted.
You then genitally manipulated the same girl some months later in a relatively public place at Centrepoint, the dining room. Many other persons were present at that time. That formed the basis of Count 2 on which you were convicted.
As to the second complainant, when she was 12 years old you had her come to your caravan where you performed oral sex on her, in the presence of your then wife, and with that other person participating in this threesome. You then had intercourse with this complainant. No charges were proffered with respect to that event. You were convicted on Count 3.
Counts 4 and 5 related to the third complainant, then aged 14. Count 4 involved another threesome and oral sex between you and this person and your then wife. You were convicted on that count. Count 5 was a representative count going to ongoing incidents of oral sex with that particular complainant.
These, Mr Mendelssohn, are the bald facts – that in the late 1970’s and early 1980’s you were involved in the activities complained of.
So much for the nature of the offences. I think it relevant to relate next what happened at the trial, because it is somewhat unusual. You discharged your counsel as the trial commenced. You denied all the offences, except Count 5, which was to some extent conceded. (You described that as a “casual affair”.) But not only that, you insisted on cross-examining all the complainants in person in minute detail – an ordeal which one of the victims rightly described as being extremely traumatic and abusive. The situation was thankfully an unusual one. Our current law contains quite strict provisions in an endeavour to minimise the traumatic impact on complainants associated with these kind of trials. Yet I think it proper to note that your attacks at trial were an all out attack on the veracity and the integrity of these particular complainants. You claimed that all in all, the complaints were a put-up job by disaffected young women who, you said, also had the added motive of trying to accumulate substantial sums by way of Accident Compensation.
I accept at once that complaints of so-called sexual abuse can be easily made and they are very difficult to deal with and refute. It may be necessary, and often is, to vigorously defend charges. But of course if that defence fails, much is revealed about you. That is what happened in your trial.
How are we to grapple with your behaviour in relation to the particular incidents proved and at the trial? One viewpoint, or possible viewpoint, is suggested by one of the complainants when she says in her Victim Impact Statement: “I think of all the people who abused me at Centrepoint, Mendelssohn is in some ways the most dangerous because he is so ignorant that he does not seem to be able to perceive that what he has done has been so damaging; and arrogant because even if he did perceive it, I do not believe he would behave any differently than he has done.” I have to say there were times during the trial when I shared that viewpoint.
But there is another possibility, and that is that you have not yet begun to face what you did and that you are simply, like an alcoholic, hiding behind that outright denial. This phenomenon is well known in the Courts, it is well known to forensic psychology. And if that possibility, which I am not qualified to pass on, is correct, it follows that you may well have some very real problems of your own to deal with in the future as the realisation begins to bite home.
Finally, I note under this general head your refusal to co-operate with the Probation Service on a report for the Court.
I turn now to the more specific considerations on sentencing.
1. The Court has to consider which of the general aims of sentencing are to be pursued. That is, protection, punishment or retribution, deterrence, prevention, compensation or reparation. In my view the elements of protection of children, deterrence, and to some extent punishment, are of real importance here.
2. As to the nature of the offence, I have already described it in some detail. This was not an isolated offence. At least in the 1970’s and the early 1980’s you were indulging in predatory behaviour towards these young girls at Centrepoint. They are serious offences in that you were able to use your position as a leader at Centrepoint to advance your sexual interests. All complainants gave evidence that they did not feel able to refuse your advances, for want of a better term.
3. Your attitude towards the whole matter, I have already dealt with this in some detail. You made strong attacks on every possible basis on all of the complainants at the trial. You still espouse what some persons I suppose would describe as a liberal philosophy; you still flatly deny the offences except Count 5.
4. The Victim Impact Statements: These disclose prolonged sexual and psychological abuse to which you contributed. There are possibly some physical consequences, although that is less clear. (It does seem that at least one of these complainants may not be able to have children, and has indulged in self-mutilation.)
5. I am required to take into account the two months that you have already spent in custody.
6. As the Crown properly reminded me, I must have regard to comparable sentences. I too have looked again at all the Centrepoint sentences, which were very helpfully collated for me by the Court staff. As you have correctly observed Mr Mendelssohn, the sentences range all the way from a fine in one case to seven and a half years in Mr Potter’s case. So far as I am presently aware there has not been a sentence appeal in that case, but that case obviously represents the upper limit having regard to the treatment, sentencing-wise, accorded other convicted persons.
7. I am also required as a matter of sentencing principle to have regard to the totality of the sentence that I impose and not just the five individual counts.
8. As to your good side, a number of points should be made.
“(a)You have helped many people. There are a large number of testimonials as to your kindness and care for other persons.
(b)You have clearly been a good father to your adult daughters. They are mature, confident women who speak glowingly of you.
(c)I think it right to acknowledge that you have obviously made a contribution to some of the better aspects of Centrepoint over a long period of time.
(d)It is apparent from all the material that you have had your own kinds of disappointments and crosses to bear during your life. You have struggled with those and you have put some of those matters behind you.”
9.You remind me, and properly remind me, that in practical terms it is now over a decade since the events complained of.
In the end though, it comes to this: you were part of an inner cabal and you actively participated in, for a significant period of time, the abuse of these young girls. I have no evidence what the present situation is although I observe that the most favourable view to you (in the absence of any evidence) is that those practices have now discontinued. These were serious offences. They involved the systematic indoctrination of these persons under 16 from a position in authority.
Turning to the specific counts, on Count 1 I sentence you to twelve months imprisonment, on Count 2 to nine months, on Count 3 to twelve months, on Count 4 to twelve months; and on Count 5 to six months, to be served cumulatively. You will observe that that yields 51 months imprisonment. However, taking into account the two months or so already spent in custody, I sentence you to four years imprisonment.”
8. The relationship of a number of relevant persons is important for a number of reasons; I refer in this clause 8 to some of those persons, (certain of whom have been referred to in brief previously); I refer also to certain relevant places; in respect of some of such references I have included brief comments which will in some cases be amplified later in these reasons:-
(a) Lynda Bradley (“Lynda”) was a member of the Centrepoint community (“the Community”) which will figure largely in these reasons. The Applicant and Lynda are the owners as tenants in common of an 11 acre farming property situated some 11 kilometres outside Lismore and which is referred to as “Alphadale”. That property was purchased in June 2001 for $240,000. The vendor was prepared to leave $55,000 outstanding by way of vendor finance repayable in three years; that balance has been reduced to $8,000;
(b) Alphadale is currently occupied by the Applicant and Lynda; it is also occupied by Tui aged 10, Annie aged 8 and Elizabeth aged 6; Tui, Annie and Elizabeth are all daughters of Allison Tuckwell (“Allison”). Lee Bradley, a son of Lynda aged 14 (“Lee”) also lives at Alphadale. Allison lives at Flowerdale near Byron Bay but visits Alphadale each alternate weekend. The children visit her at Flowerdale on the other weekends. The Applicant is the father of Annie; he thinks that he may be the father of Tui and behaves as if he were her father. As to whether he is her biological father is not certain although presumably a DNA test would reveal whether this is so. As I have noted, the application under review relates to a citizenship application by the Applicant on his own behalf and also on behalf of Annie, but not on behalf of Tui.
(c) Elizabeth is six; she is the daughter of Allison and Sean O’Connor (“Sean”) who died in Australia on 27 December 2000.
(d) Lee is, as I have indicated, Lynda’s son. His arrival from New Zealand is comparatively recent. I was told that his father consented to his departure from New Zealand.
(e) The Applicant was first married to Christine Benge and by whom he has two daughters, Emma and Vicki (both now adults, married and with a child or children of their own). All three of Christine, Emma and Vicki currently live in New Zealand. The Respondent had served notice that he would require them for cross-examination. However and on the second hearing day Mr Peek agreed that on the basis that their evidence was confined to that appearing in their statements, those statements would be accepted without the need for cross-examination. I intend to refer to those statements later in these reasons. I might add in this context that the Respondent indicated also that he would, amongst others, require Allison and Lynda for cross-examination; the Applicant said that neither of them wanted to give evidence.
(f) Virginia White (“Virginia”) and her daughter Sarah Parry (born in 1986) (“Sarah“) are also relevant for reasons set out later in these reasons.
(g) The establishment of the Community by its “guru” or spiritual leader, Herbert Thomas Potter (“Potter”) also figures largely in these reasons. Nearly all of the persons referred to in these reasons lived in the Community at some time or another; the Community was founded by Potter. According to the Applicant persons joining the Community were by and large middle class and educated and seeking an alternative lifestyle. They were encouraged to dispose of possessions; the gift of moneys so derived to the Community was also encouraged. The Community population at one point numbered something over three hundred people. With funds received it started and ran businesses and increased its holdings of land. As I understood the Applicant, an essential element of the Community arose from its attitude to sex. It taught that sex should be free and easy and natural and so that men and women meeting together could as easily engage in sex as they could have a cup of tea. This resulted in casual relationships although it was also open to couples to behave in monogamous fashion. Drugs such as ecstasy and LSD were freely available to those who wanted them. The Applicant referred to those drugs in a manner, which could be described as approving and certainly not condemnatory; they were broadly speaking mind-enhancing drugs, which enabled the persons taking them to become more self-aware. Potter was convicted in New Zealand of dealing in prohibited drugs and sentenced to a term of imprisonment in consequence. The Applicant said that this arose from the fact that the quantities found in Potter’s possession were above the prescribed limits. As the Applicant described the Community there was one other unusual feature. Men, women and children lived together; as a result children could freely watch sex and in some cases became actively involved. The Applicant now appears to accept (although not with any great conviction) that this feature was undesirable. Mr Groom, whose evidence was not in all respects satisfactory, was clear in his view that sex involving children was and is wholly bad. The Applicant however pointed to the fact that numerous children lived in the Community and had this experience without it harming them. He pointed to the fact that his own daughters, Emma and Vicki, were two of the many children who could be treated as falling within this category.
(h) The term “CYPS” refers to the Children and Young Persons’ Service of New Zealand. It performs a function akin to that performed by the Department of Community Services (“DOCS”) in Australia.
(i) CYPS was apparently actively involved in the Court orders referred to in Exhibit R1.
(j) As I informed the Applicant on a number of occasions the decision of the Federal Court in Minister for Immigration and Multicultural Affairs v SRT (1999) FCA 1197 has the effect that I must accept without reserve the sentencing remarks of His Honour Hammond J. A careful reading of those remarks indicates that the Judge took care to refer to those points which favoured the Applicant. The Judge was concerned as to the fact that the Applicant for the most part denied all of the charges, that he cross-examined each of the three young female complainants in minute detail and to an extent which was traumatic to them, and moreover that he suggested that the complainants were motivated by considerations of financial compensation. In his evidence before me, the Applicant said that there were three complainants; as regards one of them a girl under the age of 16, he admitted that he did have a casual affair with her. As regards a second girl also under the age of 16 he denied that he had any contact with her and said that she was the only complainant cross-examined by him at length while the other two complainants were cross-examined in casual or desultory fashion. The third complainant was at the time of the commission of the offences about three years old. As he described matters that child would come and sit on his lap and encourage contact of a sexual nature. As to the Judge’s findings that the Applicant had contended that the complainants were motivated by financial considerations, the Applicant said that each of them received between $10,000 and $60,000.
9. As I have indicated, the findings of His Honour Hammond J are binding on me and must be preferred to any evidence by the Applicant to the extent of any inconsistency. It is relevant to note that there were others, and including Potter who were prosecuted for and found guilty of sex offences. Those prosecuted included Suzanne (who was married to the Applicant for a time) and who pleaded guilty, thus sparing the complainants the pain of cross-examination. It is perhaps marginally relevant in this context that the Judge noted that the Applicant dismissed his counsel and handled the matter himself. It is possible that this move was ill‑advised.
10. This is a convenient point at which to note that I accept the evidence of Mr Groom that, although the Applicant was in 1996 included in a list of paedophiles, he does not fit that mould. He was and is drawn to women, and not children, and certainly not in the latter case in any compulsive manner. That said, his conduct in relation to the three year old child in particular is to be deprecated in the strongest possible fashion and I would not wish these reasons to be construed in any other fashion. But I am prepared to accept that children are not at risk so far as he is concerned. Moreover the offences in question took place between 1979 and 1983 and the Applicant has served his sentence. Due regard must be had to the fact that 20 years have passed and that he has not re-offended.
PART B – THE EVIDENCE OF THE APPLICANT
11. The Applicant was born in 1944 in Wellington New Zealand. His parents (who were both 41 when he was born) were well-to-do. His father built up a chain of successful millinery and hat shops. His mother was a university graduate and a secondary school teacher. He has an older sister, Anna Watson (referred to as “Anna” or as “the Applicant’s sister”) who is his senior by six years.
12. The Applicant attended primary and secondary school in Wellington. He then spent two years in Wellington at a tertiary educational institution in an endeavour to gain entry to Auckland Engineering School. In this endeavour he succeeded but after three years at Auckland Engineering School he did not qualify. He attributed his failure to lack of interest and application and too much social life. As he put it, it was usual in those days for persons of his background to go to university and he chose Engineering in an arbitrary fashion and because he is practical.
13. The Applicant left the Engineering School in 1966 and in December 1966 married Christine Benge. He was involved in dairy farming from 1967 to 1973, first as an employee and then as a 39 per cent share milker and later as a 50 per cent share milker. The price of land increased to such an extent that he did not think that he would be able to buy land. He moved to Auckland where he worked as an industrial engineer for Alex Harvey, from October 1973 to March 1975.
14. The Applicant then bought a business, which made artificial flowers and women’s fashion items; that business is referred to as “the artificial flowers business”. It was purchased for $10,000 on the basis that interest only was payable until the expiry of five years when the purchase price became payable. He described the transaction as one related to his family, by which I understood him to mean that it was somehow connected to his father's millinery business and which accounted for the unusually generous payment terms. He ran the business until 1980, having paid off the purchase consideration and interest.
15. In 1975 or 1976 his marriage became “rocky”. Christine had an affair and he had difficulty coping with her infidelity. He became involved in encounter groups run by Shoreline Trust and of which the head was Potter.
16. In 1978 Potter started the Community in the form of a charitable trust. The Applicant had come strongly under Potter’s influence and joined the Community in June 1978 after it had been in operation for some five months. (At this stage the Applicant was still running the artificial flowers’ business which was not sold until 1980; until it was sold its profits were paid to the Community).
17. The Community had purchased a 20 acre property at Albany, some 15 kilometres north of Auckland. It had basic buildings on it. In the beginning many of the residents lived in caravans. The core philosophy of the centre was, as the Applicant explained it, openness, honesty and personal growth through personal interaction. Open sexuality was integral to the teachings and philosophy of the Community.
18. The Applicant’s daughters, Emma and Vicki, were born in 1968 and 1970 respectively. Emma lives with her husband and children (twin boys of 8 years) in Auckland. Vicki is an airline pilot married to an airline pilot; she has a daughter who is one year old. Vicki and her family intend to move to Hong Kong in the near future because her husband has obtained employment there.
19. Legal battles connected with the Community commenced early in the 1980’s. Its status as a charitable trust was questioned; the ensuing litigation was, so I was told, resolved in favour of the Community, in part, on the basis that it constituted a religion promoting the teachings of Potter. There were also legal issues connected with planning.
20. The artificial flowers business was sold in 1980. The Applicant received $100,000 which he paid to the Community. The Community was growing in size (and its population rose to 320) and its area rose to a point where its aggregate area was approximately 92 acres. The Applicant who described himself as a financial person was involved in various activities, and including the setting up of businesses (and in particular a pizza delivery business. He was also involved in building; he was at times in charge of the kitchen, and at times he also ran therapy groups.
21. The activities of the Community attracted media attention in particular because Potter was regarded as controversial. In 1989, at a time when the Community population was 300, Potter was arrested and convicted of having ecstasy and LSD for supply and sentenced to a term of four and a half years imprisonment.
22. In May 1991 a large police raid resulted in the prosecution of ten people including the Applicant and his then wife, Suzanne. The Applicant had separated from Christine in 1976 and moved into the Community with Suzanne whom he later married. The Applicant and Suzanne were charged jointly. Suzanne (as I have indicated) pleaded guilty and was sentenced to a term of 18 months. The Applicant as I have also indicated, contested the charges and was sentenced to a term of four years, of which he served one-half. (He was entitled to an automatic remission of one half of his sentence).
23. The Applicant returned to the Community on his release from prison in February 1995. Potter had been sentenced to seven and a half years imprisonment; he was finally released in March 1999. By 1995 many of the Community’s members had left, leaving its membership still remaining at about 100. There were disputes among them as to the Community’s future course. The Applicant was a member of a group referred to as the “old believers” who held that the Community should continue to follow Potter’s teachings. In 1996 a High Court declaration to this effect was sought; (the Applicant’s evidence indicated that he remains convinced of the value of the Potter teachings).
24. A commission of inquiry was set up by the government of New Zealand. The Public Trustee was appointed and there were other applications and steps taken in consequence and including the winding up of the Trust constituting the Community and the sale of its assets.
25. The Applicant said that he separated from Suzanne in 1997 and before they were charged (I imagine that he meant to refer to 1987; he did on occasion make slips of this nature). From then on he has never had anything other than a succession of casual relationships with various women.
26. The various legal processes caused considerable acrimony in the Community. In addition and in 1999 the CYPS launched an investigation into the conditions of children living in the Community; legal actions concerning the children were commenced, and in particular with a view to the grant of a declaration that a number of children were in need of care and protection.
27. At this stage the evidence became confusing. It would seem that the CYPS intended action on two fronts; in the first place it proposed to seek restraining orders prohibiting Potter and the Applicant from having access to the children. In the second place the CYPS also intended to take action to place certain children in care.
28. Virginia lived in the Community from about 1980; the Applicant had an “off and on” relationship with her. He said that he was a father figure to Virginia’s daughter Sarah. The Applicant met Allison in 1986 before being sent to prison. He had a relationship with her and for that matter with others. Allison became pregnant in September 1992; according to the Applicant, it is possible that the child is his; Tui was born while he was in jail. Although there has been no DNA test, the Applicant considers that it is likely that Tui is his daughter and she treats him as her father. However and as I have noted, the application under review relates to Annie but not Tui.
29. Having divorced first Christine and later Suzanne, the Applicant did not marry Allison. In fact he doubted whether he ever lived in a marriage relationship with Allison.
30. Allison left the Community while the Applicant was in prison but returned to it some four months after the Applicant was released. Annie was born in 1996. The Applicant believes that he is Annie’s father.
31. Subsequently Allison had a relationship with Sean O’Connor and Elizabeth, his daughter, was born in 1998.
32. It was at this stage that the Applicant gave graphic evidence as to his sexual conduct with the very young child. I do not think that I need repeat it. The Applicant said that he did not at the time think that it was doing her any harm. However he said that he now knows that it is wrong. He said in this context that none of the children under investigation were found to have been sexually abused.
33. Towards the end of 1999 it became clear that the CYPS was likely to take action which might effectively ban him from connection with the children. It is for this reason that it was decided as a matter of extreme urgency that a group of people should leave New Zealand for Australia. The group consisted of Sean, Allison, Virginia, Sarah, Tui and Annie; the group arrived in Australia on 28 November 1999. (The Applicant in evidence said that they left New Zealand in October 1999). On the very next day, 29 November 1999 the CYPS obtained orders prohibiting the removal of a number of a children and including Tui, Annie, Elizabeth and Sarah from New Zealand. That order was apparently ineffective as regards those children who had already left New Zealand and at a later stage (and as indicated by Exhibit R1) those orders were discharged.
34. The group to which I have referred lived originally at a motel for a short while and then at Flowerdale Farm (“Flowerdale”) which is near Byron Bay. They lived on social security provided by the Australian social security system. In addition the Applicant provided ten thousand dollars borrowed from his sister.
35. In May 2000 a financial settlement was concluded in respect of the proceeds of the sale of the Community’s assets. In consequence of that settlement monies were due to the residents of the Community and including the Applicant, Lynda and other members of the group.
36. The Applicant described the group situation as difficult and stressful. Sean had become ill; Sarah was difficult to control, and money was tight. In early 2000 Lynda (who had also been a member of the Community) joined the group in Australia to help them; she too lived at Flowerdale originally.
37. However Virginia and Sarah left the group in Flowerdale in March 2000. It will be noted that the persons comprising the group altered from time to time firstly by the departure of Virginia and Sarah and later by the addition of Lee.
38. It is clear enough and indeed the Applicant admitted, that he was party to the hurried flight of the group from New Zealand to Australia. His attitude was that they fled New Zealand in the best interests of “our children”.
39. In May 2000 the Applicant was living with his sister Anna Watson or his daughter Emma. He was involved in the settlement proceedings. After taking advice, he came to the conclusion that his criminal record would either prevent him from coming to Australia or alternatively that to do so would result in substantial delay. He said that he believed that the interests of the children came first and that although he does not lightly flout the law, it was necessary to do so on this occasion. The first step was to change his name by deed poll to Dave Watson (and Watson is the surname of his sister). Having done so he obtained a passport in that name and then came to Australia where he ticked the arrival form as to convictions with a “No”. As appears from clause 3 of the Applicant’s contentions, he contended that it was necessary to do so “because of the urgency of the situation”. In the course of his evidence he said that the matter was urgent for the reasons set out previously. However it will be remembered that Lynda had come to Australia for precisely those reasons.
40. I may have misunderstood the Applicant’s evidence but my notes indicates that the financial settlement was finalised in May 2000 at which time the Applicant was staying with his sister or his daughter Emma. It may be that he intended to say only that the settlement was effected in that month because in fact he arrived in Australia in April 2000. Of the monies which were received, Virginia and Sarah took $72,000. Allison received $36,000 and used a substantial part, but not all of her share, to go to the United States of America to attend a religious course in the Midwest.
41. Sean died on 27 December 2000. It is not disputed that the Applicant cared for him devotedly. I will deal later in these reasons with a certificate by the nurse in charge, and who was Anna Dicker. The Applicant as a New Zealand citizen received a special visa on his arrival; it was issued as a tourist visa but in fact became a permanent resident’s visa thereafter in accordance with s 5A of the Australian Citizenship Act, which conferred special privileges on New Zealand citizens.
42. The Applicant in his arrival form said that he intended to stay for six months. He contended that that statement was not untruthful because at that time he did not know what the future would hold for him. This in my view might perhaps be a case of special pleading. It is an answer which must be considered in the context of the criminal convictions answer. The future may have been uncertain but that this was so arose from a situation entirely of his own creation. He had been involved in the flight of the group and which he knew would or might breach New Zealand court orders. On the other hand he was in New Zealand for some months after their departure without any action being taken against him. It may be that this was so because the New Zealand authorities took the view that at that stage action would serve no useful purpose. At a later stage and in relation to his clear admission that he deceived the Australian immigration authorities, thus breaching s 234 of the Migration Act 1958 (“the Act”), he contended that it could not be regarded in a serious light given that there has been no prosecution against him. This is an untenable contention in relation to the breach of s 234 in consequence of his deliberate failure to disclose his convictions. . That a breach of s 234 is serious is indicated by the severe penalties prescribed. Although I have doubts as to the other answer it would be fairest in my view to hold that he may not have been untruthful
43. In September 2000, the Respondent commenced proceedings, which might have led to the revocation of the Applicant’s visa. In the result, and after submissions by the Applicant, and including a large number of testimonials by family members and others (and including his sister, Emma, Vicki, and Anna Dicker) the Respondent decided that the visa would not be revoked. It is important to remember that this decision was made entirely on compassionate grounds; Tpg147 is a declaration made by the Applicant in connection with the Respondent’s action, and reading as follows:-
“DECLARATION
I, Dave WATSON (aka David Munro Walker Mendelssohn), declare that I understand:
· A decision has been made not to cancel my visa under s 501(2) of the Migration Act;
· Any further conviction will result in the question of visa cancellation being reconsidered by the Minister or his or her delegate;
· Disregard of this warning will weigh heavily against me if visa cancellation is reconsidered;
· I am required to declare my criminal conviction on:
-any future visa application;
-any incoming passenger card; and
-any future application for Australian citizenship.
· Failure to so declare my criminal conviction may result in severe penalties.
Signed: Dave Watson Date: 26/3/01
Witnessed: Lynda Bradley Date: 26/3/01”
44. The fact that the Respondent did not revoke the Applicant’s visa should not be construed as in effect an admission that the Applicant is of good character. It is altogether clear that the Respondent after very considerable consideration, and at considerable length, decided on compassionate grounds that his visa should not be revoked.
45. After arriving in Australia, the Applicant at first lived with the group at Flowerdale.
46. Alphadale was purchased in the middle of 2001 by Lynda and the Applicant as tenants in common. As I have indicated $55,000 was left outstanding to the vendor; it has been reduced by payments of $1,000 per month (made most months) to the vendor. Those payments are funded entirely out of moneys provided by the Australian social security system. The Applicant receives social security for Tui and Annie amounting to $850 per fortnight while Lynda receives $750 per fortnight for Elizabeth and Lee. As I have indicated Lee’s arrival in Australia is comparatively recent and Lynda’s payments were presumably lower before his arrival. It should be noted that Allison previously received social security for Tui, Annie and Elizabeth but at some point in time this situation was changed. Allison currently draws unemployment benefits for herself while living at Flowerdale.
47. The current position is that Lynda and the Applicant are the co-owners of a house in which the four children (Tui, Annie, Elizabeth and Lee) live. Each of the Applicant and Lynda receives the single parents’ allowance on the basis that they are not a couple and even though, as the Applicant put it they occasionally have sex together. Their relationship, it might be thought, is not dissimilar from many marriages of long standing; the Applicant said that the social security authorities are aware of and not dissatisfied with the situation.
48. During his evidence-in-chief, the Applicant’s attitude was that in living on Australian social security and not working in Australia, the Applicant and Lynda were doing the right thing for the children who needed the support and attendance of parents of both sexes. He said that one of the reasons why there is so much crime is precisely because parents do not give their children sufficient attention. When it was pointed out to him that this is an untenable situation for any country as a whole since in most families one at least of the parents works, his answer was, that there is always a percentage of unemployed and he is simply one of that number. In any event, so he said, there is an arrangement between New Zealand and Australia pursuant to which New Zealand bears some of the cost and he went on to draw attention to the numerous New Zealanders who do work in Australia and whose tax payments remain in Australia. The Applicant appears not to have taken sufficient notice of the fact that these former New Zealand residents live and work in Australia because they want to do so, often for economic reasons, and that their tax payments support the services which they receive in Australia.
49. At a later time during his evidence there was a shift in the Applicant’s view. The Applicant sought to argue that the macadamia trees, which he has planted at Alphadale will, so he said yield $30,000 per annum in five years. He said also that the trees may start yielding a positive cash flow in the near future.
PART C – THE EVIDENCE OF JOHN GROOM
50. Mr Groom gave evidence by telephone link to New Zealand. His report was prepared in connection with the visa cancellation proceedings, and is included in T15 (It may be noted that in connection with those proceedings there were numerous other certificates and references, in the main, by members of the Applicant’s family construing that term to include his extended Community family).
51. Mr Groom came to Australia from New Zealand for three days in October 2000 in order to meet with the Applicant and to make his assessment. It is surprising perhaps that the Applicant brought a psychologist all the way from New Zealand in order to form an assessment for the Australian authorities. A report by a local psychologist might have been considerably less expensive.
52. In respect of Mr Groom’s report Tpg102 and Tpg103 under the head of “Dave’s Presentation” and Tpg103 and Tpg104 under the head of “Risk Factors” read as follows:-
“DAVE’S PRESENTATION:
I found Dave Watson to be outgoing, friendly, open and genuine. At worst he could be seen to be naive at times, and perhaps not as conscientious in a political sense as he might be “of his impact” and behaviour on others. I found him easy to relate to and felt comfortable and at ease with him in the many hours that I spent in his presence in late October.
In observing Dave within his new living situation at Byron Bay, I found him to be living in a large, rambling, spacious, and many roomed farm-house which gave a good combination of privacy and withdrawal for any member of the group while allowing areas that were large enough to join communally.
At all stages during my considerable contact time with this small community, the behaviour to each other and to me as a visitor, was entirely appropriate. They were cordial and outgoing and accepting. There was considerable concern and care shown for each other.
It became quickly apparent to me that not only was Dave the oldest member of this group, but also was the natural leader and “father-figure”. For Sean he has represented and does represent his closest care-giver and confident, and his most intimate support as Sean faces the last few months of his life.
With Allison, Dave provides support, encouragement and stability to ensure that she has the resources to assist in the care of Sean and to protect and look after her youngest child, Elizabeth.
On my arrival into the community setting, Elizabeth greeted us – jumped into Dave’s arms and held on to him closely. It was clear that Dave is a secure and ongoing father-figure for her as she senses Sean’s own demise.
Annie the 4 year old presented herself as being friendly, outgoing, natural and comfortable. She was at ease in all her interactions around Dave.
Tui at 7 years of age was more withdrawn but this appeared to be quite normal both for her personality and for her stage in development.
Sarah, the 14 year old, I found to be outgoing, intelligent, articulate, and very self-confident. She spent much of the weekend around Dave, Allison and Sean – very much at her own choice and in fact decided to stay over some two evenings. It became quickly apparent that this is a second home for Sarah in a very functional way, i.e. in providing clear limits and encouragements for her and reinforcement of her mother’s care-giving (Virginia).
In summary, Dave’s role within this group of people is central and it is easy to imagine in the dis-array that his absence would cause.
RISK FACTORS:
The convictions of indecent assault need to be considered in the special context in which they arose. Referring back to behaviour and circumstances that were some 20 years ago and arose in the context of a very particular community and in which the witnesses against Dave were far from impartial.
In spite of the above, it is important to note that Dave has expressed quite freely and openly to the interviewer, his regret at his offending and his acceptance of the damage that this has caused to the girls, to those around him and even to his current family – he offers no excuse for that offending but simply wants it noted that it was contextual and that he would not re-offend.
As noted above, I have worked for a number of years both in the areas of sexual abuse and sexual offending. Dave’s history and presentation is not consistent with any description or understanding of paedophilia. He does not have an orientation towards sexual outlets with children. He is part of a small group of individuals (usually male) who can be at risk in a one off circumstance. It would be highly unlikely for anyone in this group to re-offend.
Not only is his offending almost 20 years ago, in special circumstances, but he now shows in his mid-50s a lot of the softness, maturity and appropriateness that comes with somebody of his age and stage.
His interactions with the children was always very gentle. He was good at structuring and re-assuring the children. He set appropriate limits for them and encouraged their own sense of self-choice and empowerment.
Dave, in observation, was an appropriate and permission giving father / grand-father. Whatever his experiences in Centrepoint, it is very clear that he has learned from them. The children need him and feel very safe with him. In a similar way, the women involved, feel very safe and comfortable with Dave having the children in their care.
Dave is in an appropriate adult sexual relationship, and does not fit in any way the profile of paedophile.
It is important that I assure the Immigration Department that Dave does not represent any threat or risk to either his own or any other children.”
53. Examination of Mr Groom indicated that certain of his statements were made entirely and only on the basis of information furnished to him by the Applicant. This is so in particular in relation to the first paragraph under the head of “Risk Factors”. His remarks as to the witnesses not being impartial would suggest that he knew this was so or had made inquiries to this effect. He did not. He made that statement (unwisely) entirely on the basis of what the Applicant told him. In particular he made no inquiry as to the sentencing Judge’s remarks.
54. I found Mr Groom’s evidence of limited value, excepting only for only one aspect, and that is that I accept, as I have indicated, that the Applicant does not appear to fit the profile of a paedophile
PART D - THE EVIDENCE OF MR STEVEN SMITH
55. Mr Peek allowed Mr Smith to give evidence although no statement had been produced.
56. Mr Smith is a former New Zealander who works in a senior position for Telstra. He knew something of the sex crimes; he believed that they related to under aged girls. He was clearly surprised that one of the complainants was about three at the time. However he adhered steadfastly to his opinion that the Applicant is a decent person and that he could associate with children anywhere.
PART E – THE EVIDENCE OF ANNA, EMMA, VICKI AND ALSO ANNA DICKER
57. All of the relevant statements appear in the T-documents having been furnished in connection with the visa cancellation proceedings. Emma’s certificate appears at Tpg106; it reads as follows:-
“12 October 2000
To: Australian Immigration Department
Re: Dave Mendelssohn/Watson’s application to remain resident in Australia
My name is Emma McDonald and I am the eldest daughter of David Mendelssohn. I am 32 years old and I live in Auckland, New Zealand. My current profession is mother to twin boys that are 4 years of age and I am happily married to Sean McDonald. Previous to becoming a mum I was a very successful business professional, my last job being a Corporate Account Manager for Ericsson Communications Limited.
I am writing in the hope that you will let my father stay resident in Australia. His failure to declare his previous convictions in New Zealand was only made after much consideration, in the desperate hope that he could live a peaceful life with his family. The convictions relate too (sic) events dating some 20 years ago and are in no way indicative of his character or his lifestyle. My father is a very special person with a very positive attitude towards life. I accredit dad for my healthy, happy and outgoing nature that he taught both my sister and I as we grew up. He is a fantastic father that has always been practical, supportive and has encouraged me to excel in my particular interests. Dad and I keep in regular contact and he continues to be a help to me in my life. It is extremely beneficial for all families to include a father and I think that dad is an exceptional example of a quality dad. Dad’s younger children Annie and Tui, in my experience, undoubtedly benefit from his parenting skills.
I recently visited Dad and his young family in Australia. They are all very happy and are enjoying been (sic) together as a family. In addition to Tui and Annie needing their father, dad is also a vital support person to Sean O’Connor in his fight with cancer. Dad left New Zealand in search of a new beginning with his family. I hope that someone from your department will take the time to meet with dad and his family, before making your decision, because I am confident that they would find him to be a good father in a stable happy family –surely a good Australian resident.
Yours sincerely
Signed: Emma McDonald
35 Garadice Road
Rothesay Bay, Auckland
New Zealand”
58. Vicki’s statement appears at Tpg109, it reads as follows:-
“Vicki Mendelssohn
68 Brookfield Street
Hamilton
New Zealand
Phone 64 7 856 9927
Australian Immigration Department
Re: Dave Mendelssohn’s application to remain resident in Australia
Dear Sir/Madam
I am Vicki Mendelssohn, daughter of Dave Mendelssohn. At 30 years of age I have no doubt that I have lived a very blessed and happy life. I have a Business Management degree with Honors, am a teacher, have lived and worked in 4 countries (traveled (sic) in many others) and am now a pilot. To top it all off, I will be married in December. I am marrying a wonderful man, a rare find with the standard set so high so long ago -–my being born to Dave Mendelssohn.
I attribute my success in life to the solid and happy childhood provided by my father, and his endless support and encouragement since then. He has taught me the interest and enjoyment of life that distinguishes me from many others.
It would be a tragedy to deprive Dad’s younger children of the start in life and continuing support of which he is capable and dedicated to providing for them.
I am willing to come to Australia to discuss all I have outlined above should you like to hear it from me personally.
Please visit my father and family. Dave Mendelssohn is an unusual man with unusual devotion, patience, flair and happiness for fatherhood.
Signed Vicki Mendelssohn BMS (Hons).”
59. The Statement of the Applicant’s sister appears at Tpg110; it reads as follows:-
“1 October 2000
To: The Australian Immigration Department
Re: David Munro Walker Mendelssohn
I am David’s elder sister. I live in Auckland, New Zealand, am a parent of 4 adult children in professional occupations and a grandparent of 4. I work 15 hours a week as a fundraiser for Asthma Auckland and host guests in my inner suburban home. I keep close contact with David’s two older girls now in their thirties. I find them to be well adjusted, competent, successful and happy young women who were brought up by their father from an early age. He was a constant in their lives, they have always been very close to him, and as adults supported him throughout the trial and subsequent conviction many years ago. My experience of David’s fathering of Annie and Tui leads me to believe both these children will grow into similar adults if they are able to benefit from what David is able to give them.
Although at times, David has made what in retrospect he has determined to be unwise decisions, I have always experienced him as honest. I believe that his failure to supply Australian immigration with accurate information was borne of desperation to be there to support Allison and Sean and to parent Tui and Annie.
David is a law-abiding citizen and honest person. His only past conviction and failure to diclose(sic) it, through fear of being denied access to those who needed his support, are totally atypical. I am sure David will not offend in any way whatsoever, if you will allow him to remain in Australia. I believe his forced return to New Zealand will seriously affect the young children’s future by growing up without a father in their daily lives. David and I have 4 cousins and a 90 year old aunt who have lived in Australia for many years. They are exemplary Australian citizens and I can assure you that David will follow their example. I urge you to treat David’s situation humanely.
Anna Watson [DOB 11-09-1938]
536 Mt Eden Road
Auckland 1003
New Zealand.”
60. This evidence is clearly of limited value coming as it does from close family members who say very little indeed in relation to the conduct which gave rise to this application.
61. I have referred previously to Anna Dicker, the nurse in charge of Sean prior to his death. Her certificate (Tpg113) reads as follows:-
“To Whom It May Concern,
Re: Dave Watson
I met Dave in early December 2000 in my capacity as a community nurse. Dave was the primary carer for a patient with a terminal illness receiving palliative care. I was closely involved with the patient, Dave and the other household members until the patient’s death in late December. I found Dave to be a caring, compassionate person caring for his friend until his death. Nothing was too much trouble for Dave and his working relationship with myself was excellent. I found Dave’s attitude to be helpful and respectful and his care for the patient could not have been better. The atmosphere in the house was delightful with everyone working harmoniously towards making the passing of their friend as good and as smooth as it could be. The patient told me many times of the high esteem that he had for Dave and I can understand why. I have great respect for the way Dave conducted himself during this difficult time. If I could recommend a model of care to people in similar circumstances this would be the one I would recall.
Anna Dicker RN RM. Community Nurse.”
62. It was given in connection with the visa cancellation proceedings and it too is silent as to his convictions.
63. There were other references (not including for this purpose the Anna Dicker reference) of similar type and which no doubt played a large part in the Respondent’s decision not to cancel the Applicant’s visa. They all tend to either ignore or play down the conduct which gave rise to these proceedings.
PART F – FURTHER EVIDENCE AND SUBMISSIONS BY THE APPLICANT
64. After this hearing was completed as I read the T-documents I noted that in connection with the visa cancellation proceedings, the Applicant said in clause 4.1 at Tpg83:-
“4.1 Since my arrival in Australia we have looked at several life businesses to purchase and operate. While we have yet to find the suitable operation I am sure that if I remain in Australia such a purchase will be made and we will be able to support ourselves and make a worthwhile contribution to Australian society… However given the position Allison will find herself in if she is left her alone with the children it is likely the(sic) she and her children will have to rely on governmental benefit support. I believe that this situation is far from ideal position for her and the children. [2.17(a)]”
65. Although this was not put to the Applicant in cross-examination I note merely that the Applicant’s evidence did not contain any hint whatever of an intention to purchase a business or indeed that any had been looked at or inspected. It may be noted though that clause 4.1 formed part of a submission made on 12 October 2000 and prior to the purchase of Alphadale.
66. The Applicant in his closing submissions furnished a written document headed “Reply to Respondent’s Facts and Contentions” reading as follows:-
“8. Not correct. No Sarah or Virginia at Flowerdale, no Allison at Alphadale.
9. Incorrect. I neither claimed to have custody of all three children or be in a relationship with Lynda.
14. Incorrect. Advised that the Minister not a delegate had exercised discretion.
19-25. These contentions deal primarily with my convictions and the circumstances around them. I can only repeat that these events now happened more than 20 years ago in a situation that is unlikely to reoccur and even if it did, having seen the consequences to all concerned, I would not repeat my behavior(sic).
26. Considering the number of families that suffer severe trauma and stress when a member is dying of cancer I believe that these letters contribute significantly to my claim to be of good character.
27. Contrary to the contention that the refusal of Australian citizenship would have no practical impact on me or my family I believe that not being a citizen of the country in which they grow up leaves children in a position where they may be open to taunts of difference and feelings of not belonging.
28-29. Nobody but me was involved in any deception of Australian government authorities.”
67. Mr Peek accepted that the Applicant’s comments as regards clauses 8 and 14 of the Respondent’s Statement of Facts and Contentions could be accepted. He was also inclined not to query the comment in respect of clause 9. I note in this context that at a departmental interview in February 2003 the Applicant was asked (Tpg34)
“Q. Is there another woman you live with?
A. Yes
Lynda Bradley. She is the ’care-giver’ of Elizabeth O’Connor”.
68. In my view the Respondent was entitled to allege that the Applicant is living with Lynda in the ordinary sense.
69. The Applicant contended that his conduct was analogous with that of the applicant in “SROO” and Minister for Immigration and Multicultural Affairs [2000] AATA 999. In SROO the applicant was guilty of one act only. I do not agree that the Applicant’s conduct fits within the concept of “one-off” behaviour.
PART G – CASE LAW AND THE AUSTRALIAN CITIZENSHIP INSTRUCTIONS (“ACI”)
70. Mr Peek referred me to the decision of DP McMahon in Lachmaiya v Department of Immigration and Ethic Affairs (1994) 19 AAR 148 and in particular to clause 34 reading as follows:
“34. Some assistance is to be found in s 20. The relevant parts of that section are -
"s20(1) This subsection applies to a person, being a non-citizen, who has entered Australia, whether before or after the commencement of this section, if;
(a) the person has ever evaded an officer for the purpose of entering Australia; or
(b) when, or before, the person entered Australia on any occasion, he or she :
(i)produced, or caused to be produced, to an officer or a person exercising powers or performing functions under this Act, in respect of that entry:
(A) a bogus document; or
(B) a passenger card containing information that was false or misleading in a material particular; or
(ii) made, or caused to be made, to an officer or a person exercising powers or performing functions under this Act, in respect of that entry, a statement that was false or misleading in a material particular;
(c) when, or before, a visa was granted or issued on any occasion in respect of the person, he or she:
(i) produced, or caused to be produced, to an officer or a person exercising powers or performing functions under this Act, in respect of the grant of that visa, a bogus document; or
(ii) made, or caused to be made, to an officer or a person exercising powers or performing functions under this Act, in respect of the grant of that visa, a statement that was false or misleading in a material particular; or
(ca) the person has ever made, or caused to be made, a false or misleading statement in a declaration covered by subsection 24(1A) or 34(1A); or ....."
71. However I found the decision of DP Chappell in Mlinar and Minister for Immigration and Multicultural and Indigenous Affairs (1997) 48 ALD 771 of particular assistance. In the first instance I cite clause 21 and with which I entirely agree, as to the policy contained in the ACI, and reading as follows:-
“(21) It is also true that the policy set out in the ACI does not have the force of delegated legislation and is not strictly binding on the tribunal. Nevertheless, the tribunal has consistently stated that it will follow publicly declared ministerial policy or departmental guidelines unless there is some good reason not to: Re Drake and Minister for Immigration and Ethnic Affairs (No2)(1979) 2 ALD 634; Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189; 33 ALD 13. The tribunal will generally not follow policy if it is inconsistent with the provisions of an Act or regulation or causes injustice in a particular case. Here, there is no good reason why the ACI should not be followed, and they have been followed in previous tribunal cases: see Re Lau and Minister for Immigration and Multicultural Affairs (1996) 43 ALD 425; Re Wong and Minister for Immigration and Ethnic Affairs (1996) 41 ALD 672.”
In the second instance I agree also with Deputy President Chappell’s comments as to the proper standard for good character in citizenship cases; see in particular clauses 15, 16 and 17 of Mlinar reading as follows:-
“(15) The respondent’s case essentially rests on the fact of the applicant’s conviction for assault and the resulting good behaviour bond. The tribunal is bound by the fact of the conviction and cannot make any findings inconsistent with it: Re Cooper and Commonwealth (1988) 16 ALD 213 and Commonwealth v Sciacca (1988) 12 ALD 614; 78 ALR 279. While the tribunal may consider the circumstances of the offence, it cannot resolve the inconsistencies in evidence claimed by the applicant, or upset the magistrate’s finding that he did not act in self defence.
(16) The respondent did not dispute the applicant’s prior good character, but submitted that any breach of the applicant’s bond could see him recalled for sentencing, which would prevent the grant of citizenship (under s 13(11) of the Act). It was inappropriate for the tribunal to grant citizenship while the applicant’s criminal matter is effectively unresolved. Although the Act allows the exercise of discretion, ministerial policy clearly states that a person in the applicant’s position should not be prematurely granted citizenship.
(17) “Good character” in s 13 should be given the same meaning as it is in s 501 of the Migration Act 1958 (Cth) (the Migration Act): Re Hamwi and Department of Immigration and Ethnic Affairs (AAT, No 9639, D P McMahon, 25 July 1994, unreported); Re Naumovski and Minister for Immigration and Ethnic Affairs (AAT, No 9815, D P McMahon, 4 November 1994, unreported) and Re PE and Department of Immigration and Ethnic Affairs (AAT, No 9990, D P Breen, 6 February 1995, unreported). The standard of good character should be even higher for citizenship cases than s 501 matters because of the importance of citizenship and the greater responsibilities and privileges attached to it. Mr Smith conceded that hardship to the applicant (as noted in the ACI) is a relevant factor when exercising discretion, but is not strong enough here to warrant prejudging the final outcome of the criminal matter by granting citizenship.” (Emphasis added)
72. In referring to the ACI I note that excepting to the extent amplified or modified in this clause, I agree with the content of clause 19 of the Respondent’s Statement of Facts and Contentions. However and in addition:
· In relation to clause 5.4.3, it is my view that if one weighs the Applicant’s conduct as a whole against ordinary community standards, it is clear enough that he does not discharge the onus. His criminal convictions happened a long time ago and he has not re-offended. However his behaviour at his trial as referred to in the sentencing Judge’s remarks is a cause for concern; his behaviour in relation to the relevant authorities both in New Zealand and Australia at a later time are equally such that one has to feel uneasy about whether he has truly reformed. To this day he clearly endorses the view and philosophy (surely discredited by now) of Potter and indicated that additions at Alphadale on Community lines would not be unwelcome. He says now that sexual conduct involving children is bad but contends in the same breath that most children involved in it were not adversely affected. He does not seem to understand that an adverse effect on even one is sufficient.
73. Clause 5.4.3 is similar in its terms to (although not precisely the same as) the provisions of Direction 21 as regards the expectations of the Australian community. In my view the expectations of the Australian community would not favour the grant of this application.
74. I refer next to clause 5.4.8. At the time when the visa was granted the Respondent did not know of the Applicant’s convictions or his breach of s 234 of the Act. The Respondent became aware of them subsequently and decided nevertheless on compassionate grounds not to revoke the Applicant’s visa. But that action cannot be construed as an endorsement of the Applicant. Clause 5.4.8 is thus against the Applicant.
75. As to clause 5.4.17 I accept that for the Applicant to obtain testimonials from Australian citizens in the Lismore community would be embarrassing and difficult.
PART H – CONCLUSION
76. The Applicant presents as a likeable and even charismatic man. His family is devoted to him. He plainly has great gifts as a parent. His care for Sean in his last illness was commendable. However this appears to be the only truly altruistic act which is relevant. A man cannot expect to be commended because he cares for his children; apart from any other considerations he is legally obliged to do so. That said, the Applicant is not legally bound to care for Elizabeth or Lee, and may perhaps not be legally bound to care for Tui.
77. The Social Security aspects of this matter took up a good deal of time. It cannot be denied that the Social Security system exists in order that it can be used by those who need it. At the same time the Applicant and his group who have used it so extensively cannot expect to be commended because they have done so. The plain fact of the matter is that the entire group has (leaving aside payments ex the Community asset sales) been supported entirely by Australian social security. The Applicant is an able bodied man who demonstrated that he could find remunerative work as an engineer in New Zealand. He has chosen not to do so in Australia. And his arrangement with Lynda, so akin to a long-standing marriage, is at best dubious. Lynda and the Applicant are building up an asset in the form of Alphadale when the repayment of the loan is being funded by the Australian social security system. I note in this context that some of the capital invested appears to belong to the children while Alphadale on the face of it belongs to the Applicant and Lynda.
78. I am prepared to accept that the Applicant is unlikely to re-offend and that he is not a paedophile. As I have indicated, the Applicant’s convictions occurred 20 years ago and he has served his sentence. However the manner in which he cross-examined the complainants and sought to contend that they were motivated by financial considerations is to say the least of it, disturbing.
79. The Applicant, as I have indicated, sees nothing odd in the fact that he and his whole group are supported by the Australian taxpayer. On the contrary he sought to justify it on the basis that he is bringing up well-adjusted children who are doing well at school. (It is for this reason that he produced their school reports as Exhibit A).
80. The Applicant’s evidence before me was, I believe, mostly truthful and sometimes disarmingly so. He was entirely frank about the fact that he lied to the Australian immigration authorities but then perhaps he had no realistic option but to make the admission that he did so. His evidence as to the manner in which he cross-examined the complainants cannot in the light of the sentencing Judge’s remarks be accepted. There is some doubt in my mind as to the social security payments and the manner in which the system may have been manipulated. In the light of his evidence before me his statements in clause 4.1 of his submissions in 2000 were probably untrue.
81. Why then does the Applicant want citizenship so much? He has the right to live in Australia and to access all benefits applicable to a resident. The only disadvantage is that he cannot vote. I refer in this context to his comment in this regard in the document entitled “Reply to Respondent’s Facts and Contentions”, and as set out in clause 27, and which I have quoted previously in these reasons. I do not accept that either he or his children or any other members of his group suffer any taunts of the nature described or any disadvantage because they are New Zealand citizens resident in Australia.
82. During the course of his closing submissions the Applicant indicated that he received a copy of the Respondent’s lengthy decision as to the fact that the Applicant’s visa would not be revoked, only when it appeared in the T-documents, and thus in point of time after he brought this application. He wondered whether he should continue with this application and decided to do so on the basis that he is after all a man of good character. On the evidence before me he has not been able to demonstrate that this is so. It is possible that he may be able to do so at some time in the future.
83. I should note that references to amounts of money were not characterised by references to whether A$ or NZ$. I have assumed that references to moneys obtained or expended in either country should be construed as references to the currencies of that country. There is one exception; the amount of $10000 borrowed by the Applicant from his sister and remitted to Australia was presumably an amount in NZ$.
84. In all the circumstances the decision under review must be affirmed.
I certify that the 84 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Block, Deputy President
Signed: A. Krilis
AssociateDate/s of Hearing 11 and 12 March 2004
Date of Decision 30 March 2004
Representative for the Applicant self-represented
Solicitor for the Respondent Mr G Peek
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