"WBU" and Minister for Immigration and Citizenship
[2007] AATA 1143
•19 March 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1143
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W 200600172
GENERAL ADMINISTRATIVE DIVISION ) Re "WBU" Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Deputy President S D Hotop Date19 March 2007
PlacePerth
Decision The Tribunal affirms the decision under review.
..........[Sgd S D Hotop]..........
Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – citizenship – deprivation of citizenship – applicant granted Australian citizenship – applicant subsequently convicted of serious sexual offences committed before application for citizenship – contrary to public interest for applicant to continue to be Australian citizen – considerations militating for and against discretionary power to deprive applicant of Australian citizenship – applicant should be deprived of Australian citizenship – decision under review affirmed
Australian Citizenship Act 1948 (Cth), s 21(1) and s 23D(3A)
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Re Prasad and Minister Assisting Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 292
REASONS FOR DECISION
19 March 2007 Deputy President S D Hotop Introduction
1. The applicant, who is a citizen of the United States of America (“USA”), first arrived in Australia on 4 August 1967 when he was 21 years of age. He married an Australian citizen in September 1967 and, apart from the period from June 1969 to July 1971 when he and his wife resided in the USA, he has resided in Australia ever since.
2. On 26 February 2002 the applicant lodged with the (former) Department of Immigration and Multicultural Affairs (“the Department”) a completed “Application for grant of Australian citizenship” form dated 14 February 2002. His application was approved by the Department on 30 April 2002 and he was granted a certificate of Australian citizenship and acquired Australian citizenship at a ceremony on 22 May 2002.
3. On 8 September 2004 in the District Court of Western Australia the applicant was convicted of 5 sexual offences against a child committed in the period between November 1986 and June 1990, and on 14 October 2004 he was sentenced to various cumulative and concurrent terms of imprisonment ranging from 2 years to 8 months, resulting in an effective total term of imprisonment of 4 years.
4. On 23 May 2006 the Parliamentary Secretary to the (former) Minister for Immigration and Multicultural Affairs – now the Minister for Immigration and Citizenship (“the respondent”) – by reason of the abovementioned convictions deprived the applicant of his Australian citizenship by order under s 21(1) of the Australian Citizenship Act 1948 (Cth) (“the Act”).
5. The applicant has applied to the Tribunal for review of the respondent’s decision.
The Issue and the Tribunal’s Determination
6. The issue for the Tribunal’s determination is whether the discretionary power, conferred by s 21(1) of the Act, to deprive a person of his or her Australian citizenship is enlivened in the circumstances of this case, and, if so, whether it should be exercised.
7. For the reasons which follow, the Tribunal has determined that that discretionary power is enlivened in the applicant’s case, and that it should be exercised so as to deprive the applicant of his Australian citizenship.
The Statutory Framework
8. Section 13(1) of the Act authorises the Minister to grant a certificate of Australian citizenship to an applicant who satisfies the Minister that, among other things, he or she is a person “of good character”.
9. Section 21 of the Act, which deals with “deprivation of citizenship”, relevantly provides:
"(1) Where:
(a) a person who is an Australian citizen by virtue of a certificate of Australian citizenship:
(i)…; or
(ii) has, at any time after furnishing the application for the certificate of Australian citizenship (including a time after the grant of the certificate), been convicted of an offence against a law in force in a foreign country or against a law of the Commonwealth, a State or Territory for which the person has been sentenced to death or to imprisonment for life or for a period of not less than 12 months, being an offence committed at any time before the grant of the certificate (including a time before the furnishing of the application); or
(iii) …; and
(b) the Minister is satisfied that it would be contrary to the public interest for the person to continue to be an Australian citizen;
the Minister may, in the Minister’s discretion, by order, deprive the person of his or her Australian citizenship, and the person shall, upon the making of the order, cease to be an Australian citizen.
…”
10. Section 23D of the Act, which contains “special provisions to prevent persons being stateless”, relevantly provides:
"…
(3A) Where, but for this subsection, a person to whom subparagraph 21(1)(a)(ii) applies would, if the Minister were to make an order under subsection 21(1) in relation to that person, become a person who is not a citizen of any country, subsection 21(1) does not apply in relation to that person.
…"
The Evidence
11. The evidence before the Tribunal comprised:
·the “T Documents” (T1-T16, pp 1-75) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
·the oral evidence of the applicant, his wife, and Lorna Jean Brain; and
·various documents tendered in evidence by the applicant (Exhibits A1-A6).
Background Information
12. In addition to the facts set out in paragraphs 1-3 above, the following background information is contained in the T Documents.
13. As regards the offences of which the applicant was convicted on 8 September 2004, Judge Mazza, in the course of his sentencing remarks, said:
“…
You were convicted on 8 September this year by unanimous verdict of the jury of five offences… Those offences I am sure are well known to you but I need to set them out for the purposes of these proceedings. You were convicted of two counts of unlawful and indecent dealing of a child under the age of 13 years by penetrating her vagina with your finger. The maximum term of imprisonment for each of those offences is seven years.
You were also convicted of two counts of inciting a child to unlawfully and indecently deal with you by having her masturbate your penis. The maximum term of imprisonment for each of those offences is also seven years. You were also convicted of one count of unlawfully (sic) and indecent assault on a child under the age of 16 years by rubbing her vagina. The maximum term of imprisonment for that offence is six years’ imprisonment. The victim of your offending was your niece by marriage… who was born on 9 June 1977.
The first four offences on the indictment took place between 30 November 1986 and 31 December 1987 at a time when the complainant was nine or 10. The fifth offence occurred… between 8 June 1988 and 9 June 1990 when she was 10 or 11. You were born on 2 August 1946 which makes you currently 58 years of age. Between 30 November 1986 and 31 December 1987 you were 40 or 41, and between 8 June 1988 and 9 June 1990 you were 41 or 42. The facts were examined in detail at trial. My duty is to sentence you on the facts which are consistent with the jury’s verdicts.
The jury had the opportunity of seeing and considering the evidence of the complainant and seeing and considering your evidence. Consistent with the directions that I gave the jury, the jury were required to give special scrutiny to her evidence. It is clear by the verdicts of the jury that the jury believed the complainant as to the commission of these offences beyond reasonable doubt and rejected your explanation. Accordingly, I must sentence on that basis.
The first four offences occurred in Mount Pleasant at a duplex half which (sic) you occupied with your wife… The complainant and her family occupied the next door duplex unit… The first two offences on the indictment occurred in the same incident. The complainant was lying in between you and your wife in your bed in your bedroom. Your wife fell asleep. You and the complainant were playing a tickling game which was apparently a common occurrence.
You took advantage of this situation to place your right hand down her knickers and then with two of your fingers you rubbed her vagina up and down on the outer lips of her vagina. You then inserted one finger into her vagina. They are the basic facts with respect to count 1. As to count 2 you then rolled the complainant onto her back and grabbed her hand. You put her hand onto your penis and guided it up and down your penis until you ejaculated.
As to count 3, on this particular occasion the complainant returned home from school one afternoon and you called out to her. She came into your home. Whilst there you called her to your bedroom. After some tickling in the bed you put your hand under her knickers and rubbed the outer lips of her vagina with your fingers. You then inserted one finger in her vagina and moved it in and out for a period of time. As to count 4, on this night you – this occurred at night time. The complainant cannot recall where your wife was on this particular occasion.
At some point in the evening you and the complainant were on the bed in your bedroom playing the tickling game. You rolled the complainant onto her back and got her hand and put it down the front of your underpants. You then put her hand on your penis and guided it up and down your penis until you ejaculated. You ejaculated on her pyjama pants causing her understandable shock. The fifth count occurred at your house at Bull Creek some time after the first four counts. On this occasion you were babysitting the complainant and at least two of her cousins.
At one point you and the children were in the queen size bed playing the tickling game. In the course of that game you reached your right arm over the complainant and put a hand down her knickers. You then rubbed the outside of her vagina with two fingers for a short period of time. Each of these offences is serious but I regard the instances of indecent dealing by digital penetration as the most serious.
The seriousness of the offences is contributed to by a number of factors: first, they were committed against a young child who was really powerless to do anything to stop you; second, you took advantage of your position as uncle by marriage; third, you were older by approximately 30 years than the complainant; fourth, these were offences which at least while you were at Mount Pleasant were part of a deliberate course of conduct.
The complainant said in her evidence that she was abused by you three or four times per week. Having heard the complainant and you give evidence my view is that whilst the position may not have been quite as frequent as alleged by the complainant instances of abuse occurred more often than just the offences for which you have been convicted. You are not being sentenced for this other offending but this other offending puts these offences in their context.
Fifth, the offences occurred over a period of time and were not isolated aberrations of behaviour; sixth, your offending has had a very serious impact on the victim and her family. I was able to see that during the course of the trial. I accept that not all the complainant’s psychiatric problems in the past have been caused by your crimes. For example she herself said in evidence that part of the problem had related to some failed relationships with boyfriends, but I believe that it is very likely that your actions have contributed significantly to her psychiatric problems and her personal misery in the past.
I reject, having heard her give evidence, any notion of sexually provocative behaviour by her. I now turn to your antecedents… I note, as I have already said, that you’re 58 years of age. You’re a citizen of the United States of America although you have become a naturalised Australian citizen.
You have no record either here, that’s no record of convictions, either here or in the United States or anywhere else. I’m aware of your troubled background. I have noted that your employment history has been a very good employment history. I have noted that you served your country in Vietnam and I accept that you did so at what now turns out to be great personal cost to your mental well being. I accept that you suffer from post-traumatic stress and depression and that those matters weigh heavily upon you and weigh heavily upon you now.
I accept that the offending can be explained to some extent by your excessive consumption of alcohol and your psychological state at the time of your offending. I also accept, based on Mr Cicchini’s report, that you’re a low risk of reoffending. I accept that your current psychological and psychiatric state will make a term of immediate imprisonment difficult for you and that you’re at some risk of self-harm. I accept that you’re well regarded by those who know you. I have read in particular the reference given to me by your wife and I was moved by it.
I note that she is loyal and supportive and that she has gone through a great deal because of the events of this trial and the events preceding this trial. I accept that the last two years since you were charged with these offences has been a very difficult time for you, and indeed this matter has been hanging over your head since the family meeting in early 1996, but balanced against that is the fact that the complainant and her family have also gone through a lot.
One of the things, it seems to me, that people do not often appreciate about this kind of offending is that not only does it have serious consequences to the direct victim but there are all sorts of other indirect victims of what you did. Those indirect victims are associated with her family – that is, the complainant’s family – and your wife is one of those indirect victims.
I have seen in your counsel’s written submissions to me a submission that you are genuinely remorseful. I have to say, having seen the way that you gave evidence during the course of the trial, I don’t accept that. As to disposition, cases involving people who offend against young children have to be met with stiff sentences. I recognise that there is no tariff. I recognise that each case has to be looked at on its own facts but looking at the facts of this case, I don’t see anything exceptional in it in the sense that I would be justified in imposing a sentence upon you other than an immediate term of imprisonment.
…
With respect to count 1, prior to the Sentencing Legislation Amendment and Repeal Act which was a piece of legislation that was passed last year, I would have sentenced you to three years’ imprisonment but in accordance with the traditional provisions of that legislation, I adjust that term of imprisonment to two years.
On count 2, I would have imposed 18 months’ imprisonment but in accordance with the legislation I have just referred to, I adjust that to 12 months’ imprisonment. On count 3, I impose a term of imprisonment of three years but I adjust that to two years. On count 4, I impose a term of imprisonment of 18 months but adjust that to 12 months. On count 5, I impose a term of imprisonment of 12 months which is adjusted to eight months…
I now turn to consider questions of concurrency, cumulacy or partial cumulacy. The offences which formed the first incident are made up of two offences, counts 1 and 3 (sic), but the other offences – counts 3, 4 and 5 – are separate incidents. It seems to me that the appropriate way of dealing with issues of concurrency, cumulacy or partial cumulacy is to make the terms of imprisonment on counts 1 and 3 cumulative upon each other.
I also must deal with issues of totality. Taking that into account, what I will do is order that the terms of imprisonment imposed on counts 2, 4 and 5 be concurrent with count 1. The effect of what I have just done is this: the total term of imprisonment which is imposed upon you then is a term of four years’ imprisonment. I make you eligible for parole with respect to each and every sentence and I backdate the commencement of the sentences to the day on which you went in (sic) custody which was 8 September 2004.
…” (T9, pp 41-46)
14. By letter dated 14 July 2005 an officer of the Department informed the applicant (who was then in prison) that, by reason of the offences of which he had been convicted, he was liable to be deprived of his Australian citizenship, and invited him to provide, within 28 days, “reasons in writing as to why the Minister should not deprive [him] of [his] Australian citizenship”. (T11, pp 48-49)
15. The applicant responded by letter to the Department dated 19 July 2005 in which he stated (inter alia):
· “The ‘incidents’ of which I was convicted occurred in 1986/87.”
· “These incidents were grossly overstated (there is compensation involved) and/or invented.”
· “I have always respected the rule of law and acted accordingly. I never even thought of, much less took part in, anything remotely akin to the charges.”
·
“Why I should not be deprived of my Australian citizenship.
Never ever even arrested but this once.
38 years of doing the right thing and trying to help others.
I would feel totally disenfranchised.
It would break my heart.” (original emphasis) (T12, pp 50-53)
16. On 5 May 2006 the applicant wrote a further letter to the Department, inquiring about the “possible withdrawal” of his Australian citizenship, in which he stated (inter alia):
“…my arrest came as a total shock to me as the charges were spurious and greatly exaggerated. In fact the incident which inspired the whole mess was so minor, supposedly happening in 1987, that I had never given the matter a thought. The charges bore no relation to actuality!
…” (T15, p 68)
17. On 23 May 2006 the respondent, by order under s 21(1) of the Act, deprived the applicant of his Australian citizenship. The applicant was so notified by letter from the Department dated 6 June 2006. (T2)
18. On 14 June 2006 the applicant lodged with the Tribunal an application for review of the respondent’s decision. In a letter to the Tribunal dated 23 June 2006 the applicant stated:
“I FIRST HEARD OF A PROBLEM WITH CITIZENSHIP FROM AN ANONYMOUS OFFICER AT HAKEA PRISON NOT LONG AFTER IMPRISONMENT IN SEPTEMBER 2004.
Unofficially. I was finally notified that my right to citizenship was being queried in an Immigration letter dated 14 July 2005. I then:
· July 2005, wrote giving my reasons why I shouldn’t lose my citizenship.
· Nothing heard until:
· 2006. In May, I wrote to Immigration, asking if any decision had been made?
June 9, 2006. Received a letter from Immigration, dated 6 June, 2006, that a decision had been made to strip me of citizenship. Signed by Andrew Robb, Prlt. Sec to Min. The reason being that I knew of the offences prior to my application for citizenship. This is not correct, because what actually happened was not an offence on my part and so minor as to have been forgotten. The offences?, supposedly committed in late 1987, were not divulged by the claimant to her family until 1996. At the time, all I was told was that I had supposedly ‘interfered’ with the girl. Nothing more specific. I offered to go to trial immediately if that was the true belief and that offer was ignored. The funny thing is, that after that, there was still social contact with the family. Nothing further was mentioned of this matter, until I was arrested in June, 2002. I certainly had no idea I was going to be arrested.
· As I stated above, I knew no offence on my part had been committed and even after being made public to the family, I denied then, as I do now, that I committed the offences as charged and convicted. The true facts are:
· I certainly DID NOT make an application for citizenship with any foreknowledge that I was to be arrested, or that I allegedly committed such or any offence. I made application as soon as I became aware that dual citizenship, Aust/US, was possible. My application was made in good faith.
· I was 56 years old at the time of my arrest and had never been arrested before. This is my first offence.
· I have lived in Australia; first from August, 1967, returning to the U.S from July, 1969 until July/August, 1971. I then migrated to Australia and held permanent residency from then until 2002, when I became naturalized.
· I have a good work history and references.
· My wife is Australian born.
· I have no living relatives in the U.S.
· My ‘offences’ were classed on the low end of the scale by the trial judge.
· I was convicted on hearsay alone. There was no evidence.
· I plan to somehow clear my name in this matter.
· I’m a war veteran with an honourable record.
· I’m devastated by the decision to deny, as I now consider myself Australian and I’m very proud of the fact.
…” (original emphasis) (T1, pp 4-5)
The Applicant’s Case
The applicant’s evidence
19. The applicant tendered in evidence his signed statement dated 19 December 2006 (Exhibit A1). In that statement the applicant referred to:
· his service in the United States Navy from 1963 to 1969 (including a tour of duty in Vietnam);
· the circumstances in which he met his future wife in New Zealand in early 1967 and their marriage in Australia in September 1967;
· his “agonizing” in the mid 1970s over whether to take out Australian citizenship and thereby lose his USA citizenship, and his eventual decision not to do so at that time;
· his subsequent work history until 1985 when he and his wife moved to Carnarvon where he worked for Radio Australia for about 1 year;
and continued:
13.By this time I was having a lot of problems with my health. I was suffering symptoms of Post Traumatic Stress Disorder although at the time I did not realise the nature of my problems. I suffered from depression and anxiety and I had been prescribed valium which I became addicted to. I was also drinking too much as I saw alcohol as a means of temporary relief.
14.We moved back to Perth and it was during this period when we were living next door to my niece and her family that the offences occurred for which I was later convicted. My recollection as to what occurred is very different to the offences [of] which I was convicted in 2004.
15.I have to live with my convictions and I realize that the Tribunal cannot go behind those convictions. I have never denied that inappropriate behaviour occurred for which I deeply regret. However what can be said is that my niece made certain accusations against me in 1996 to her family, which accusations were certainly not the same as or close to the seriousness of the matters alleged and for which I was arrested and charged in June 2002. At the time that my niece made her allegations in 1996 there was discussion within the family and with [my wife] but not directly with me and the result was I was banned from further contact with the rest of the family. My niece’s father’s sister is a police officer. Nothing occurred between 1996 and June 2002 which gave me any cause to believe that I would be arrested and charged with offences against my niece. My application for citizenship had nothing to do with any expectation of pending charges.
16.In respect of the offences for which I have been convicted, it was a period of my life which was particularly difficult. We were under considerable financial and family stress at the time and it was thought that my wife had bowel cancer. I was suffering from symptoms of Post Traumatic Stress Disorder, but my condition had not been recognized or treated. I was drinking far too much and I had become addicted to valium and to other medication. I’ve been told that it sounds as if I was experiencing a mental breakdown at the time. This does not any way excuse my behaviour, particularly the behaviour alleged against me and which resulted in convictions. However it was an isolated period of my life. I have lived in Australia for almost 40 years, I have no other convictions of any type and there have been no other convictions or even allegations by anyone else.
17.The persons who have treated me both within and outside the Department of Justice consider that it was an isolated course of conduct that I am not in any way at risk of re-offending. Nonetheless, I have to live with the fact that I was convicted and all that implies. I, along with my wife… must live with the horrific impact of all of this. It is not something that can or ever will be forgotten or dismissed. I agonize over the pain and hatred this has caused to so many people.
…
19.In about 1994 we moved to Pemberton and built a house there. We lived in Pemberton until 2000 when we bought a block of land and built in Busselton where we continued to live until I was arrested in 2002. Whilst in Pemberton I did a variety of odd jobs and casual work mainly horticultural. It was whilst I was in Pemberton that my PTSD was recognised and I was referred to Dr Roland Main for assessment and treatment. I have continued to receive medication for my depression and anxiety and I have also had therapy. Although my PTSD symptoms improved to some extent as a result of the treatment that I obtained at this time, I suffered a variety of health problems and I was granted a disability support pension.
20.It was only in 2001 by which time we were living in our house in Busselton, that I heard that dual citizenship between Australia and the United States was allowed and it was then that I took immediate steps to obtain Australian citizenship. My application for citizenship had nothing to do with the offences for which I have been convicted and which had occurred in about 1987.
21.After I was arrested in June 2002 it was more than 2 years before the charges came to trial. After I was convicted I was held on remand pending a pre-sentence report. That report dated 29 September 2004 assessed that I was suitable for an Intensive Supervision Order but also recommended that I would have the opportunity of addressing issues related to the offences for which I was convicted if I received a prison sentence. The trial judge determined that I should serve a term of imprisonment and I received a total sentence of 4 years with parole and with a minimum term of 2 years. I completed the Reasoning and Rehabilitation Program in July 2005 and the Medium Sex Offender Treatment Program in November 2005. I was regarded as a wholly satisfactory prisoner and suitable to commence parole once I had completed my minimum required term. There was initially an issue as to whether I could be released whilst steps had been taken by DIMA to cancel my citizenship however this was obviously resolved because I was released on parole on my due date. My parole officer has subsequently provided an assessment to the effect that I am not of any risk to the community.
22.I believe that the decision to cancel my citizenship has been made without any consideration for my life’s history and behaviour. A small window at a terrible time, disregarding almost forty years of responsible life in Australia. A portion, out of context and totally against all my actions, before or since. Technically correct, but to me exceptionally unfair and particularly unfair to [my wife] who has supported me through all that has happened, but who also relies on me to provide her with the mutual support that we give to each other after almost 40 years of marriage. The loss of citizenship opens the door to possible deportation and the worry of this hanging over our heads just adds another level to our stress and our relatively precarious health.
23.The thought of being removed from Australia and with [my wife] being forced to choose between continuing to live with me but in complete poverty, on the one hand; and without me, but able to remain in the country where she has lived almost all her life, able to remain in contact with her family and able to survive financially on the disability support pension, on the other hand, is truly horrendous.
24.The only links I have with my country of birth are some mostly forgotten memories. The last thirty five years have been spent in Australia, adapting and assimilating to this country and its society. I have no one and nothing there if I am forced to return to the U.S. No family, place or inclination of any kind. I have previously said that I was heartbroken in losing my citizenship and that was not an idle comment in hopes of gaining sympathy. I have grown with Australia and it is as much a part of me now as any integral part of my body and mind. The thought of the loss of living here is beyond my mind’s ability to grasp. Only despair and desolation are attached to the very thought.
25.My wife insists she will stick with me whatever the outcome. I have pointed out that, with little resource and no one to go to, the outlook is one of hardship and deprivation. We are both plagued by illnesses that would go unheeded over there and this would surely bring about an early demise for one or both. I don’t exaggerate when I say that we would soon be homeless. We are not going to find work at our age and state of health (I now have emphysema as well) and neither of us qualifies for any type of social benefit of any kind. I am proud and deeply touched by her loyalty and support. She is far too good a person to be subjected to such cruel circumstance, when she is a totally innocent person allowing her emotions to rule. I can’t allow something like that to happen. Her siblings here have abandoned her because of me, but she still keeps in regular contact with her mother – they are emotionally dependent on each other – and we still have many wonderful friends to help us.
26.Over there, after thirty five years of no contact, we can’t even imagine any sort of life, anywhere, in America. Both my parents died many years ago. In recent years my only brother and sister have both died. I have never met their children; we don’t keep in contact.
27.Australia is our home, one by birth and one by hard earned choice. It may be easy enough to say: ‘well, she can simply stay here’, but we are as close as it is possible for two humans to be and how do you simply say: ‘thanks for the past forty years, but I’m out of your life now’. That imposed decision would surpass any act of cruelty that our minds can imagine.
28.I appreciate that the deprivation of citizenship is just the first step in my removal from Australia. However there is really no point in putting me through the pain of removing my citizenship unless I am seen as a risk to other Australians so as to justify my removal and that therefore removal would be the next issue.
29.I urge this Tribunal to accept that whatever did happen in the period in about 1987 and I accept that the Tribunal cannot go behind the convictions, it is now almost 20 years since those offences are said to have occurred. I have not re-offended or behaved inappropriately at any subsequent time. I believe that notwithstanding these terrible offences I have recovered my good character by the absence of any further offending behaviour and through the passage of time, together with my conviction punishment and attendance at courses and assessment to ensure that I am not a risk to the Australian public. Further my present good character is attested to by the many people who have provided character references for me.
30.On the basis that I have recovered my good character, I would have been eligible for Australian citizenship; it is not correct to say that I would never have been entitled to Australian citizenship as a result of offences for which I was recently convicted but which occurred a long time previously.”
20. In his oral evidence the applicant elaborated briefly on the circumstances surrounding the offences which he committed in 1987 and of which he was convicted in 2004. He said that the offending behaviour occurred during the period May-August 1987 and he described it as “a terrible aberration”. He said that his niece (the victim) would visit his house and that, on one occasion, he awoke and “found himself being fondled” by her. He acknowledged that “inappropriate behaviour” on his part occurred, which he described as “touching”, about 5 or 6 times, and he said that he did not engage in behaviour “to the degree charged”. More specifically, he said that there had been no penetration and no ejaculation. He said that he tried to prevent his niece from coming over to his house but that she threatened to tell her aunt (who was a police officer) if he didn’t continue. He added that eventually he put a stop to it. As regards the fifth offence of which he was convicted – which allegedly occurred after 1987 – he said that it “never happened” and he described it as “a figment of the imagination”.
21. He said that he still believes that his niece (the victim) lied in order to obtain compensation. He added that he knows her character, having known her all her life. He said she subsequently received criminal injuries compensation in the amount of $40,000.
22. As regards the Medium Sex Offender Treatment Program which he completed in prison in November 2005, he acknowledged that his performance in the program was assessed as poor. He explained that he had a “personality clash” with the program leader and that he had found the program to be “counter-productive”, “demoralising” and “dehumanising”. As regards the Treatment Completion Report, dated 6 December 2005, regarding his performance in that program (see paragraph 28 below), he described that report as “not objective” and said that it contained statements which were “made out of context” and statements which were “falsified”.
23. He said that he was released on parole in September 2006 and that his parole period is due to expire in September 2008.
The evidence of the applicant’s wife
24. The applicant’s wife confirmed that she had signed a statement dated 19 December 2006 for the purpose of these proceedings, and that its contents are true and correct. In that statement she referred to the circumstances in which she met the applicant in New Zealand, their marriage in Perth in September 1967, and their subsequent circumstances and movements up until the mid 1980s when they moved to Carnarvon, and continued:
10.Initially on our return to Perth, we shared a duplex with my sister and her family in that we lived in one unit of the duplex and they lived in the other. It was whilst we were living there in 1986 and 1987 we would baby-sit their children or the children would simply visit. They sometimes came into or onto the bed in the morning. Initially neither of us had any concerns at this. [The applicant] told me that my niece had grabbed and rubbed his penis. I understood that this only happened that morning. So far as I was aware this happened on one occasion only. He was worried and concerned. We discussed what we should do. We decided against telling my sister and doing anything apart from avoiding a similar situation occurring. I was not aware until much later that my niece alleged a whole series of incidents over an extended period, which [the applicant] has denied.
11.We moved from the duplex and rented a house in Bullcreek for 7 years and then we bought our own house in Pemberton and lived there for about 5 years altogether. I worked in a wood craft and furniture workshop and [the applicant] did a variety of occasional jobs. He had been involved in a motor vehicle accident before moving to Pemberton and he had continuing health issues arising from his injuries as well as his pre-existing post traumatic stress disorder. [The applicant’s] health continued to be poor and he was granted a disability support pension in 2000.
12.When my niece was about 18, she wanted to go to Melbourne to live with her boyfriend and her family didn’t want her to go. I received a phone call that I was to be at a family meeting and that [the applicant] was not to be there. We were living in Ardross at the time; we went together but [the applicant] stayed in the car. My sister and her husband, my brother and his wife, my mother and my stepfather were there. I was told that [the applicant] had interfered with my niece; it was similar to what [the applicant] had told me, other than that he was the instigator. It was not like the charges that were later filed against [the applicant]. They were angry. I was crying. I felt it was over the top and I thought the extended family should not have been involved and that my sister and her husband should have had it out with [the applicant] and me and that they should have been prepared to listen to him. They would not even listen to me.
13.Nothing came of this confrontation. [The applicant] was formally banned from the family from then on, but nothing else happened. Mum and I continued to talk regularly and meet occasionally, but I did not talk to the others. Mum and I did not bring it up again.
14.We moved to Busselton in Sept 2000 and bought a block and built a house there. Nothing more happened about the allegations that my niece had raised with her parents in 1996. After the initial shock and the distressing family meeting and when nothing came out of it other than [the applicant] was not to come to any family gathering, neither [the applicant] nor I contemplated that charges would be laid.
15.It had been clear to us for many years, really the last 30 years, that we had made Australia our life and our home and when [the applicant] learned that he could become an Australian citizen without losing his United States citizenship, he then applied to become an Australian citizen. He was granted his Australian citizenship and it was only a few weeks after that ceremony when out of the blue [the applicant] was arrested on 18 June 2002.
16.After [the applicant] was arrested in June 2002 we sold the house in Busselton to raise legal fees for his defence. We leased it back for a period and then moved… in 2003. We continue to rent our current premises.
17.It was certainly a considerable shock to me at the conclusion of the trial when [the applicant] was found guilty and sentenced to prison. He served 2 years firstly Hakea, then at Bunbury prison and finally at Karnet Prison. I continued to visit him whenever I could during this period and we spoke once or twice a day by telephone. I have never considered leaving him and our marriage is as strong as it has ever been. The period that [the applicant] was in prison was a very difficult time for me and I missed him a great deal but at least we knew it was for a definite period and he would be released and we could be together again and we could speak on the telephone.
18.I have to accept that [the applicant] has been found guilty of numerous offences against my niece and that the Tribunal cannot revisit his conviction. From my knowledge of my niece and how the allegations changed I still find that difficult to accept. However from all that I have known of [the applicant], that he has been a good and loving husband to me over 35 years, that he has never been involved in any other offences of any kind and that these offences occurred some 20 years ago, I truly believe that if they occurred, then he must have gone through a phase in his life that has not been repeated since and that he has reformed. He had never displayed the slightest improper interest in young girls and there has never been any other allegation or complaint ever levelled against him.
19.It was something that clearly should not have occurred. However [the applicant] has been punished both by the term of imprisonment and the loss of our financial security. He has had to face up to what he has done. However 20 years is a long time and I believe now that he has been convicted and sentenced, he is entitled to put it behind him and we should be able to get on with our lives, without it continuing to hang over our heads.
20.The prospect of [the applicant] losing his citizenship and then having his visa cancelled and been (sic) removed from Australia and being forced to return to live in the United States is devastating. [The applicant] is not entitled to a navy pension and we have lived and worked and paid taxes all our life in Australia. We have not worked or paid taxes in the United States and we would not be entitled to any benefits there. We would live in complete poverty. We are not fit to work and would have no money to live on. We both have significant health problems and we would have no health cover in the USA. The alternative, namely that [the applicant] would be forced to return to the United States and I would remain in Australia, is an even worse prospect. [The applicant] and I both rely on each other a great deal and I do not know how we would survive apart.
21.I remain close with my mother however my stepfather is very antagonistic towards [the applicant] which makes it difficult for both her and me… It would be very distressing for both of us if I was forced to leave Australia with [the applicant] and my mother and I could not continue our close personal contact. My mother is too old to travel and if [the applicant] and I were in the United States, we would not have money to live on, much less to travel.
22.I am concerned that the cancellation of [the applicant’s] citizenship is only the first step and that the Government also intends to proceed to cancel his residence visa in Australia and even if this was not done immediately, we would suffer the worry of never knowing when it was to happen. [The applicant] suffers from Post Traumatic Stress Disorder from his combat service in Vietnam. He has diabetes and remains in pain from injuries he suffered in the car accident. He already suffers significantly from anxiety and depression and he has to fight ongoing drug dependency (prescribed drugs) and alcohol issues, which he has worked hard to keep under control. Cancelling his Australian citizenship and leaving him at risk of visa cancellation and removal from Australia would greatly increase his stress and worry and would worsen his psychiatric condition.
23.[The applicant] has no family left in United States. His father died in 1971 his mother a few years after she visited us in 1980 and his siblings are also deceased. He has no contact with any nephews or nieces he may have.
24.I am an asthmatic and like [the applicant], but not so severely, I also suffer from anxiety and depression and I do not believe that my health could cope with the constant worry and what might happen to us if [the applicant] was forced to leave Australia. …”
25. The applicant’s wife also gave oral evidence but, because it did not add significantly to her abovementioned statement, it is unnecessary to refer to it in these reasons.
The evidence of Lorna Jean Brain
26. Ms Brain gave character evidence on behalf of the applicant, and confirmed that she had made a statutory declaration dated 4 January 2007 stating that:
· she has known the applicant for over 30 years and has “found him to be an upright citizen with high moral standards”;
· she is “fully aware of the charges laid against him” and that her “opinion of him remains unaltered”;
· during the time she has known him, she has “not observed any behaviour towards family and friends that was less than exemplary”.
That statutory declaration was tendered in evidence by the applicant (Exhibit A6).
Additional material tendered in evidence by the applicant
27. The applicant tendered in evidence the following additional material:
· bundle of documents (103 pages) (Exhibit A3) whose contents include:
-various medical reports of Dr B Price, Dr R Main, Consultant Psychiatrist, and Dr J Kemp, Consultant Psychiatrist;
-various character references in the form of statutory declarations and letters from 7 persons;
-various Department of Justice reports comprising Pre-Sentence Report, dated 29 September 2004; Treatment Completion Report (Prison), dated 6 December 2005; Re-entry Release Assessment, dated 20 January 2006, and Re-entry Release Recommendation, dated 13 March 2006; Parole Review Checklist, dated 14 July 2006, and Parole Assessment, dated 27 July 2006;
-Notice of Disapproved Claim from United States Social Security Administration, dated 26 May 2003;
· Department of Corrective Services, Assessment for Psychological Counselling report of Ms F Miller, Clinical Psychologist Registrar, dated 5 December 2006 (Exhibit A4);
· statutory declaration of Pamela Kerrie Mawer, dated 31 December 2006 (Exhibit A5).
28. The abovementioned Treatment Completion Report (Prison), dated 6 December 2005, relates to the applicant’s participation in the Medium Sex Offender Treatment Program at Karnet Prison from 29 August 2005 to 23 November 2005. The report details the offences of which the applicant was convicted, comprehensively describes the applicant’s participation in the program, provides an assessment (according to the “STATIC-99” risk assessment method) of the risk of the applicant’s sexual re-offending, and concludes with the following summary:
“[The applicant] is a 59 year old man convicted of Indecent Dealing with a Child Under 13 (x 2), Incited a Child Under 13 to Indecently Deal with him (x 2) and Indecent Assault of a Child Under 16 (x 1). He received a 4 year custodial term of imprisonment with eligibility for parole for these offences. The victim of these offences was [the applicant’s] niece by marriage, the incidents occurring between December 1986 and July 1990. [The applicant] accepts partial responsibility for his offending behaviour, yet disputes the specific details involved and intends to lodge a civil appeal against his conviction upon his release from prison. This partial acceptance of responsibility appears to have limited [the applicant] from gaining insight into the possible precursors regarding his offending behaviour. [The applicant] displayed an external locus of control, attributing his offences to his psychological condition and alcohol use and appeared to blame his niece for instigating and manipulating him into maintaining his offending behaviour. Despite his relatively poor performance in treatment, [the applicant’s] STATIC-99 risk assessment places him at a low risk of reoffending in a similar manner in the future.” (Exhibit A3, p 37)
29. In the abovementioned Assessment for Psychological Counselling report, dated 5 December 2006, Ms F Miller:
· referred to the applicant’s explanation of the circumstances surrounding his sex offending behaviour and commented that, although he “did not deny the offences, he minimised the impact and severity of the abuse”;
· noted that the applicant no longer regards post traumatic stress disorder as “an issue” but that he takes anti-depressant medication and is not currently depressed;
· opined that, based on his “STATIC-99” score and the “clinical impression gained during interview”, it “appears unlikely that [the applicant] would re-offend in a similar manner”;
· commented that the applicant “appears to be managing his mental health quite well” and opined that he does not require further psychological counselling.
The Respondent’s Case
30. The respondent relied on the T Documents and did not call any witnesses or tender any additional evidence at the hearing.
Analysis
31. It is common ground, and the Tribunal finds on the basis of the T Documents, that:
·the circumstances specified in s 21(1)(a)(ii) of the Act are satisfied in the applicant’s case;
·the applicant remains a citizen of the USA, and, because the making of an order under s 21(1) of the Act depriving him of his Australian citizenship would not render him a “stateless” person, s 23D(3A) of the Act does not apply so as to prevent the application of s 21(1) in this case.
32. Accordingly, the issues that arise for determination in this case are:
·whether, for the purposes of s 21(1)(b) of the Act, the Tribunal is satisfied that it would be “contrary to the public interest” for the applicant to continue to be an Australian citizen; and, if so,
·whether the discretionary power conferred by s 21(1) of the Act, to deprive a person of his/her Australian citizenship, should be exercised in the applicant’s case.
Would it be “contrary to the public interest” for the applicant to continue to be an Australian citizen?
33. In McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70, Tamberlin J referred to the phrase “the public interest” and cited relevant case law as follows (at 75-76):
"The public interest is not one homogenous undivided concept. It will often be multi-faceted and the decision-maker will have to consider and evaluate the relative weight of these facets before reaching a final conclusion as to where ‘the public interest’ resides. This ultimate evaluation of the public interest will involve a determination of what are the relevant facets of the public interest that are competing and the comparative importance that ought to be given to them so that ‘the public interest’ can be ascertained and served. In some circumstances, one or more considerations will be of such overriding significance that they will prevail over all others. In other circumstances, the competing considerations will be more finely balanced so that the outcome is not so clearly predictable. For example, in some contexts, interests such as public health, national security, anti-terrorism, defence or international obligations may be of overriding significance when compared with other considerations.
In the context of freedom of information, the notion of ‘the public interest’ was helpfully considered by the Appeal Division of the Supreme Court of Victoria in Director of Public Prosecutions v Smith [1991] 1 VR 63 at [75], where Kaye, Fullagar and Ormiston JJ said:
The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals: Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 at 480, per Barwick CJ. There are … several and different features and facets of interest which form the public interest.
The expression ‘the public interest’ was also the subject of consideration by Lehane J in Botany Bay City Council v Minister for Transport and Regional Development (1996) 66 FCR 537 at 566-567; 137 ALR 281 at 308…
His Honour also referred to the statement by Mason CJ, Brennan, Dawson and Gaudron JJ in O’Sullivan v Farrer (1989) 168 CLR 210 at 216 that:
Indeed, the expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only ‘in so far as the subject matter and the scope and purpose of the statutory enactments may enable…’
See also Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 and Re Thompson’s Application; Hannaford v Fysh [1964] Tas SR 129 at 143-144."
34. In Re Prasad and Minister Assisting Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 292 the Tribunal, in relation to the “public interest” provision in s 21(1)(b) of the Act, said (at 301):
"(39) Mr Downing [for the respondent] drew to the tribunal’s attention the scheme provided by the [Australian Citizenship] Act and the Migration Act which normally requires an immigrant who wishes to become an Australian citizen first to obtain permanent resident status under the Migration Act, then to be a permanent resident for two years and only after that to be eligible for citizenship. Together the two Acts are designed to ensure, so far as is possible, that only persons of good character with an adequate knowledge of the responsibilities and privileges of Australian citizenship are granted citizenship. It is of paramount importance, therefore, that information relevant to the character of a person applying for citizenship which is provided to the respondent is true and given in a manner which is not likely to impede the proper assessment of that person’s character."
35. The meaning of the phrase “good character”, for the purposes of the Migration Act 1958 (Cth) and the Migration Regulations, was considered by the Full Court of the Federal Court of Australia in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422. Davies J (with whose reasons R D Nicholson J agreed) said (at 425):
“… the term ‘good character’ is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. In another sense, it refers to the individual’s reputation or repute: see The Oxford English Dictionary, meanings 11, 12 and 13; The Macquarie Dictionary meanings 1, 2, 3, 4, and 5. Necessarily, when decisions are made in Australia under the Act in relation to persons who are overseas, greater attention tends to be given to objective facts and to reputation or repute rather than to a detailed analysis of the person’s inherent qualities. I do not suggest that, in the context, ‘good character’ refers to reputation and repute as such. It does not. But criminal convictions or the absence of them and character references are likely to be an important source of primary information. If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant. If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.”
Lee J said (at 431-432):“Unless the terms of the Act and Regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review [of] subjective public opinion… A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character. … Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.” (citations of authorities omitted)
In Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 the Full Federal Court said (at 197):
“The words ‘good character’ in the section should, as Lee J pointed out in Irving (at 431-432), be understood as ‘a reference to the enduring moral qualities of a person’. Conduct may make those qualities visible, but it should never be confused with them. In each case, having had regard to the conduct, the Minister or other decision-maker must still come to a further conclusion, whether or not to be satisfied that the person is of good character.”
36. The applicant submitted that, for present purposes, the public interest includes the expectation that:
· persons who become Australian citizens should be of good character;
· persons should deal honestly with the Department when making an application for Australian citizenship;
· the Australian citizenship program should be administered with efficiency, fairness and humanity, and in such manner as would promote finality and certainty.
He submitted that, at the present time, it would not be contrary to the public interest for him to continue to be an Australian citizen because, in the period of almost 20 years since the commission of the relevant offences in 1987/1988, he has reformed and has recovered his good character, as evidenced by the following:
· he has consistently been of good behaviour, and has not re-offended, during that period;
· he has been professionally assessed as representing merely a low risk of re-offending, and he poses no danger to the Australian community;
· he has, during that period, maintained a close, loving and mutually supportive relationship with his wife of almost 40 years;
· the various statutory declarations and letters of reference (which are in evidence) from friends and acquaintances (including his general practitioner and a retired Chief Inspector of Detectives and Senior Internal Investigator of the Western Australia Police Service).
37. It is axiomatic that it is in the public interest that a person, who is granted Australian citizenship under s 13(1) of the Act, be a person of good character at the time of the grant of Australian citizenship. Likewise, in the Tribunal’s opinion, it would be contrary to the public interest, for the purposes of s 21(1)(b) of the Act, for a person, who has been granted Australian citizenship under s 13(1) of the Act, to continue to be an Australian citizen in circumstances where that person:
·had, unbeknown to the respondent and to the Department, engaged in criminal conduct incompatible with good character prior to the grant of Australian citizenship; and
· has not subsequently become a person of good character.
38. In the present case, having regard to the applicant’s convictions on 8 September 2004, the applicant, some 14-15 years before he applied for, and was granted, Australian citizenship, had committed, in 4 separate incidents, 5 sexual offences against his niece (who was then aged 10-11 years) which are very serious, repugnant and grossly incompatible with good character. It is common ground that, at the time of the grant of Australian citizenship to the applicant in May 2002, the Department was unaware of the applicant’s offences (with which he was not charged until June 2002, and of which he was not convicted until September 2004). Clearly, the applicant was not a person of good character in the period when he was engaged in the commission of those offences. The question is whether he has since reformed and become a person of good character.
39. The Tribunal accepts that the applicant:
· has consistently been of good behaviour, and has not re-offended, during the period of almost 20 years since he committed the relevant offences, and that he genuinely intends not to re-offend;
· represents a low risk of re-offending and does not pose a threat to the safety and wellbeing of the Australian community;
· has, during that period, maintained a close, loving and mutually-supportive relationship with his wife of almost 40 years;
· is held in high regard by various friends and acquaintances in the community who have provided supportive statutory declarations and/or letters of reference.
The Tribunal also accepts that the applicant completed the “Application for grant of Australian citizenship” form, which he lodged with the Department on 26 February 2002, truthfully and correctly, and that he did not thereby impede a proper assessment by the Department of his character (cf Prasad, at 301).
40. There are, however, certain matters which, notwithstanding the abovementioned considerations, cause the Tribunal to have substantial reservations regarding whether the applicant has, since the commission of the relevant offences in 1987/1988, re-established his good character, in the sense of “enduring moral qualities” referred to by Lee J in Irving. In the first place, the Tribunal, on the basis of the evidence before it, is not satisfied that the applicant has fully accepted responsibility for, and is genuinely remorseful for, the offences against his niece of which he was convicted on 8 September 2004. In this connection, the Tribunal notes:
· the comment by Judge Mazza, in the course of his sentencing remarks on 14 October 2004, that he did not accept that the applicant was genuinely remorseful (T9, p 45);
· the Parole Review Checklist, dated 14 July 2006, which includes:
-
a “Treatment – Sex Offending Checklist – Outcome” report dated 19 November 2004, in which it is noted that, although it was recommended that the applicant participate in a Medium Sex Offender Treatment Program, his stance of vehement denial that the offences occurred made him ineligible for program participation (Exhibit A3,
p 50);
-a “Treatment – Sex Offending Checklist – Outcome” report, dated 22 April 2005, in which it is noted that the applicant had been reassessed (at his request) and had admitted that he had sexually offended against the victim, “although not to the level and extent as described in the Statement of Material Facts”, and that on that basis it was recommended that he attend a Medium Sex Offender Treatment Program, but that “there remains considerable justification, minimisation, and much abdication of responsibility” (Exhibit A3, pp 50-51);
· the Treatment Completion Report (Prison) dated 6 December 2005, in relation to the applicant’s participation in a Medium Sex Offender Treatment Program from 29 August 2005 to 23 November 2005, in which it is stated that the applicant “was not observed to express any guilt, shame or remorse during the victim empathy component of the program”, and that he “accepts partial responsibility for his offending behaviour” and “appeared to blame his niece for instigating and manipulating him into maintaining his offending behaviour” (Exhibit A3, pp 35-37);
· the Parole Assessment report, dated 27 July 2006, in which it is stated that “(a)t interview, [the applicant] continued to minimize his offending behaviour and appeared to displace blame for his actions onto the victim” (Exhibit A3, p 56);
· the Assessment for Psychological Counselling report of Ms F Miller, dated 5 December 2006, in which it is stated that, although the applicant “did not deny the offences”, he “minimised the impact and severity of the abuse” and that he “commented that his niece (the victim) took every opportunity to ‘abrogate personal responsibility’ and sued for compensation so as to avoid having to work for a living” (Exhibit A4);
· the applicant’s oral evidence in which he:
-denied that his sexual offending behaviour was as serious as that with which he was charged and of which he was convicted;
-blamed his niece for initiating his offending behaviour with her and manipulating him into continuing that behaviour;
-denied that he had committed the fifth offence of which he was convicted, namely, unlawful and indecent assault on a child under the age of 16 years on a date between 8 June 1988 and 9 June 1990;
-said that he believed his niece had lied in order to obtain criminal injuries compensation;
-said that he had found the Medium Sex Offender Treatment Program to be “counter-productive”, “demoralising” and “dehumanising”, and described the Treatment Completion Report as “not objective” and said that it contained statements which were “made out of context” and which were “falsified” (see paragraphs 20-22 above).
41. Having regard to the applicant’s abovementioned oral evidence, it seems to the Tribunal, furthermore, that the applicant has derived little, if any, benefit, as regards his rehabilitation, from the Medium Sex Offender Treatment Program in which he participated in the period August-November 2005. Although the Treatment Completion Report, dated 6 December 2005, stated that the applicant was assessed as being at a low risk of re-offending in a similar manner, it described his performance in treatment as “relatively poor” and recommended that various conditions be imposed in the event of a grant of parole, including: “No unsupervised contact with girls under the age of 16 years”. The Tribunal notes that that condition, inter alia, was included in the Parole Plan contained in the applicant’s Parole Assessment report dated 27 July 2006 (Exhibit A3, p 56). The Parole Plan also included a condition that, in accordance with a recommendation by the Victim Mediation Unit, the applicant “have no contact, direct or indirect, with the victim”. The Tribunal also notes that the abovementioned Treatment Completion Report contained a recommendation that, in the event of a grant of parole, the applicant remain under the “close” supervision of his Community Corrections Officer and “abide by his relapse prevention plan”. The applicant was, according to his evidence, released on parole in September 2006 and his parole period does not expire until September 2008.
42. Having regard to the whole of the evidence and to the abovementioned considerations, the Tribunal is not satisfied that the applicant has yet been fully rehabilitated such that he can now properly be described as a person of good character. It may be that, following the expiration of his parole period, he will be in a better position to demonstrate that he has re-established his good character, and, in that event, to re-apply for a grant of Australian citizenship.
43. In the present circumstances, however, the Tribunal is satisfied, for the purposes of s 21(1)(b) of the Act, that it would be contrary to the public interest for the applicant to continue to be an Australian citizen.
Should the discretionary power conferred by s 21(1) of the Act, to deprive a person of his/her Australian citizenship, be exercised in the applicant’s case?
44. In determining whether it is appropriate to exercise the discretionary power conferred by s 21(1) of the Act in the applicant’s case, the considerations to which the Tribunal should have regard include the advantages to Australian society on the one hand, and the disadvantages or hardship to the applicant and to other persons on the other hand, which would, or would be likely to, result from depriving the applicant of his Australian citizenship: Prasad, at 302.
45. In the Tribunal’s opinion, the principal advantage to Australian society which would result from depriving the applicant of his Australian citizenship is that the status of Australian citizen would be removed from a person:
· whose character the Department was, by reason of lack of knowledge of the various offences committed by him in 1987/1988, unable to assess properly before Australian citizenship was granted to him in 2002, and who might not have been granted Australian citizenship at that time had the Department been aware of his commission of those offences; and
· who has been found by the Tribunal not yet to have re-established his good character and whose continuing to be an Australian citizen would accordingly be contrary to the public interest.
Furthermore, depriving the applicant of his Australian citizenship may deter other applicants, or proposed applicants, for Australian citizenship from committing serious offences, and, in the case of persons who have committed serious offences with which they have not yet been charged, may deter such persons from applying for Australian citizenship.
46. The Tribunal accepts, however, that depriving the applicant of his Australian citizenship would not only cause him to feel great personal disappointment and sadness but would also effectively deprive him of the freedom to travel from and to Australia. The latter consequence would follow by reason of s 35 of the Migration Act 1958 (Cth) pursuant to which the applicant, at the time of his ceasing to be an Australian citizen, is taken to have been granted an ex-citizen visa (s 35(3)) – that is, a permanent visa to remain in, but not to re-enter, Australia (s 35(1)). The Tribunal notes, furthermore, that, in those circumstances, the applicant would be exposed to the risk of future cancellation of his ex-citizen visa on character grounds, pursuant to s 501(2) of the Migration Act, and consequential removal from Australia. The Tribunal accepts that such a consequence would cause great distress and hardship to the applicant and also to his wife who would thereby be forced to choose between either accompanying the applicant to the USA where he has no surviving close relatives and where their financial and health circumstances would be severely disadvantaged by reason of lack of social security and medical benefit entitlements, or remaining in Australia and living apart from the applicant with whom she has lived in a close, loving and mutually supportive relationship for almost 40 years.
47. Having regard to, and balancing, the abovementioned considerations, the Tribunal is of the opinion that it is appropriate to exercise the discretionary power conferred by s 21(1) of the Act to deprive the applicant of his Australian citizenship. In the Tribunal’s assessment, the considerations referred to in paragraph 46 above, which militate against an exercise of that discretionary power, are outweighed by the considerations referred to in paragraph 45 above which militate in favour of an exercise of that discretionary power. In arriving at that conclusion, the Tribunal notes that the most serious adverse consequences which may result from depriving the applicant of his Australian citizenship – namely, the cancellation of his ex-citizen visa and his removal from Australia – are presently matters of mere speculation and, accordingly, although the Tribunal has had regard to those matters, it has not attached substantial weight to them.
48. For the above reasons, the Tribunal affirms the decision under review.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
Signed: .............[Sgd Y Maker].............
AssociateDate of Hearing 5 February 2007
Date of Decision 19 March 2007
Solicitor for the Applicant Mr H ChristieSolicitor for the Respondent Mr A Gerrard
Australian Government Solicitor’s Office
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