ZDZG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) - [2020] AATA 2000

ZDZG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 2000 (30 June 2020)
Division:GENERAL DIVISION
File Number(s): 2017/6278
Re:ZDZG
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member T. Tavoularis
Date:30 June 2020
Place:Brisbane

The reviewable decision is set aside and substituted with a decision to not exercise the discretion delegated by section 34 of the Australian Citizenship Act 2007 (Cth).
.........................[SGD]...............................................
Senior Member T. Tavoularis
Catchwords
CITIZENSHIP – revocation of Applicant’s Australian citizenship pursuant to section 34(2) – Applicant convicted of a serious offence – whether it is contrary to the ‘public interest’ for the Applicant to retain his citizenship – whether the Applicant has re-established his ‘good character’ – whether the discretion to revoke the Applicant’s Australian citizenship should be exercised - decision under review set aside.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Qld)
Criminal Code Act 1899 (Qld)
Migration Act 1958 (Cth)
Penalties and Sentences Act 1992 (Qld)
Cases
Botany City Council v Minister for Transport and Regional Development (1996) 137 ALR 281
Director of Public Prosecutions v Smith [1991] 1 VR 63
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Hogan v Hinch (2011) 243 CLR 506
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1999) 139 ALR 84
Jones v Dunkel and Anor (1959) 101 CLR 298
McKinnon v Secretary, Department of Treasury [2005] FCAFC 142
Minister for Immigration and Citizenship v SZIAI and Anor [2009] HCA 39
Osorio and Minister for Immigration and Citizenship [2007] AATA 59
Sean Investments Pty Limited v McKellar (1981) 38 ALR 363
TRHL v Minister for Immigration and Border Protection [2015] AATA 803
WBU and Minister for Immigration and Citizenship [2007] AATA 1143
Secondary Materials
Department of Home Affairs, Australian Citizenship Policy (at 30 June 2020)
REASONS FOR DECISION
Senior Member T. Tavoularis
30 June 2020
Table of Contents
Decision
REASONS FOR DECISION
Introduction
Statutory Framework
Issues
The Applicant’s Offending History – A Summary
Issue 1: Public Interest – section 34(2)(c) of the Citizenship Act
The terms of the sub-section
Factors informing whether the Applicant remaining an Australian citizen is contrary to the public interest
Relevant concepts arising from the terms of the sub-section and the three above-mentioned factors:
(i) “Public Interest”; (ii) Weighing public interest considerations for section 34(2); (iii) ‘Good character’
(i) “Public Interest”
(ii) Weighing public interest considerations in the context of revocation of Australian citizenship on the grounds of a conviction(s) for serious offences pursuant to section 34(2) of the Citizenship Act
(iii) Good character

First factor informative of the ‘public interest’ – the severity and seriousness of the Applicant’s offending
Second Factor informative of the ‘public interest’ – the grant of Citizenship in 2015
Third Factor informative of the public interest – whether the Applicant has re-established his ‘good character’
A procedural item
The Applicant’s SFIC
Statement by the Applicant
Statement by Rev G K
Statements of Mr C - R
Other statements in the material – not relied upon/makers not called
Evidence of Dr Freeman
Evidence-in-chief of Dr Freeman – written reports
Evidence-in-chief of Dr Freeman – oral evidence-in-chief
Cross-examination of Dr Freeman

Determination of the Third Factor: Whether the Applicant has re-established his good character
Issue 2: Exercise of the discretionary power in s 34(2) of the Citizenship Act
The necessary considerations
Factors weighing in favour and against the exercise of the discretion

Summary of Findings and conclusion
Issue 1: Public Interest – section 34(2)(c) of the Citizenship Act
Issue 2: Exercise of the discretionary power in section 34(2) of the Citizenship Act
Decision
INTRODUCTION

On 25 September 2017, the Minister for Immigration and Border Protection[1] (the ‘Respondent’ or the ‘Minister’) exercised the discretion under section 34 of the Australian Citizenship Act 2007 (Cth) (the “Citizenship Act”) to revoke the ZDZG’s (the “Applicant”) Australian Citizenship. Section 52(1)(f) of the Citizenship Act facilitates review of the revocation decision by this Tribunal.
[1] Now known as the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
STATUTORY FRAMEWORK
Section 34(2) of the Citizenship Act confers a discretionary power upon the Minister to revoke a person’s citizenship if, inter alia, that person has been ‘convicted of a serious offence’.
It is pertinent to lay out sub-sections 34(2), (3), (4) and (5) of the Citizenship Act.
Citizenship by conferral
(2)The Minister may, by writing, revoke a person’s Australian citizenship if:
(a)the person is an Australian citizen under Subdivision B of Division 2 (including because of the operation of section 32); and
(b)any of the following apply:
(i)the person has been convicted of an offence against section 50 of this Act, or section 137.1 or 137.2 of the Criminal Code, in relation to the person’s application to become an Australian citizen;
(ii)the person has, at any time after making the application to become an Australian citizen, been convicted of a serious offence within the meaning of subsection (5);
(iii)the person obtained the Minister’s approval to become an Australian citizen as a result of migration‑related fraud within the meaning of subsection (6);
(iv)the person obtained the Minister’s approval to become an Australian citizen as a result of third‑party fraud within the meaning of subsection (8); and
(c)the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.
(3)However, the Minister must not decide under subsection (2) to revoke a person’s Australian citizenship if:
(a)the Minister may revoke the person’s Australian citizenship under that subsection only because of the application of subparagraph (2)(b)(ii); and
(b)the Minister is satisfied that the person would, if the Minister were to revoke the person’s Australian citizenship, become a person who is not a national or citizen of any country.
Time citizenship ceases
(4)If the Minister revokes a person’s Australian citizenship, the person ceases to be an Australian citizen at the time of the revocation.
Note:A child of the person may also cease to be an Australian citizen: see section 36.
Serious offence
(5)For the purposes of this section, a person has been convicted of a serious offence if:
(a)the person has been convicted of an offence against an Australian law or a foreign law, for which the person has been sentenced to death or to a serious prison sentence; and
(b)the person committed the offence at any time before the person became an Australian citizen .
[My underlining; emphasis in original]
Section 34(2)(a) is satisfied because the Applicant acquired Australian Citizenship on 25 January 2015 consequent upon the application he filed on 25 August 2014.
In terms of operative effect, the above legislative regime (for present purposes) works as follows:
·Section 34(2)(b)(ii) of the Citizenship Act provides that if a person has at any time after making the application (for citizenship) became an Australian citizen and was then convicted of a serious offence within the meaning of sub-section 5, then the Minister may, by writing, revoke that person’s Australian citizenship;
·Section 34(5) of the Citizenship Act refers to a “serious prison sentence” which term is defined pursuant to section 3 of the Citizenship Act to mean “… a sentence of imprisonment for at least 12 months”.
It is not disputed by the parties that after the Applicant made his application for grant of Australian citizenship he was convicted of a serious offence pursuant to section 34(2)(b)(ii) of the Citizenship Act. Thus:
·Section 34(2)(a) is satisfied;
·Section 34(2)(b)(ii) is satisfied;
·Section 34(5) is satisfied; and
·The definitional element of “serious prison sentence” in section 3 of the Citizenship Act is satisfied.
ISSUES
The hearing proceeded across three days, 22 August 2018, 29 July 2017 and 30 August 2019. Oral evidence was received from Dr James Freeman. The Tribunal also received written material into evidence, which was particularised into an agreed Exhibit List, a true and correct copy of which is attached to these reasons and marked “Annexure A”.
The abovementioned legislative regime gives rise to two issues falling for determination by the Tribunal. They are:
(i)Is it contrary to the public interest for the Applicant to remain an Australian citizen pursuant to section 34(2)(c) of the Citizenship Act?
(ii)Should the Tribunal, standing in the shoes of the Minister, in this merits review, exercise its discretion to revoke the Applicant’s citizenship pursuant to section 34(2) of the Citizenship Act?
The Applicant’s Offending History – A Summary
The Applicant is a 34 year old man. He fled his homeland, [name of country redacted], when he was 18 years old due to a civil war. He arrived in Australia 17 November 2005. As mentioned earlier, he applied for Australian citizenship, aged 29, on 25 August 2014. His application for citizenship was approved on 23 September 2014. Australian citizenship was conferred upon him on 25 January 2015, at which time he made the statutory pledge of commitment.[2]
[2] Exhibit 1, Applicant’s Statement of Facts, Issues and Contentions (“SFIC”), page 1, paragraphs [4]–[5].
He commenced a relationship from 2010. That relationship was both consensual and sexual. The Applicant’s then-partner gave birth to a son in June 2013, with the Applicant believing that he was the putative father of that child. The relationship broke down in mid-to-late 2014. On 19 November 2014, the Applicant had non-consensual sex with his then-partner. It is the incident on 19 November 2014 giving rise to the one count of rape on which he was convicted and sentenced on 11 March 2016.[3]
[3] Ibid, paragraph [6].
The T-Documents further particularise the Applicant’s offending history.[4] Suffice it to say that the sentencing episode on 11 March 2016 saw the Applicant sentenced for one count of rape committed on 19 November 2014, pursuant to s349(1) of the Queensland Criminal Code.[5] The Applicant pleaded guilty on his own volition and the relevant sentencing remarks record the following:
“Accordingly, I sentence you as follows: on the one count on indictment of rape, I sentence you to a period of three years’ imprisonment. From the cases that I have considered, I do accept that there is a range. The range in this case, of course, would not go as high as five years and it’s clear that I have selected a part of that range near the lower end of that range, given the circumstances of similarity and difference between your case and those that I have mentioned. It’s necessary, pursuant to s 12A of the Penalties and Sentences Act 1992, that the conviction be recorded as a conviction for a domestic violence offence, because it is clear, in terms of ss (1), that the indictment states that it is such, that you have been convicted of the offence in which it is stated, and I, as the Court hearing it, am satisfied the offence is a domestic violence offence.
In terms of fixing a parole eligibility date, I accept the submissions made by your learned counsel that an appropriate period is one-third of the head sentence that I have proposed…
…Twelve months, obviously less the nine days [served by the Applicant in pre-sentence custody].
…
Alright. I fix your parole eligibility date as the 2^nd of March 2017.”[6]
[4] Exhibit 7, Section 37 T Documents, T6, page 40–45.
[5] Criminal Code Act 1899 (Qld).
[6] Exhibit 7, Section 37 T Documents, T7, pages 55–56: Sentencing Remarks of His Honour Dorney DCJ, District Court of Queensland, 11 March 2016.
The Applicant was granted release on parole on his first application on 4 September 2017. He has no other criminal history.[7]
ISSUE 1: PUBLIC INTEREST – SECTION 34(2)(C) OF THE CITIZENSHIP ACT
[7] See Exhibit 1, Applicant’s SFIC, page 2, paragraphs [6]–[7].
The terms of the sub-section
It is necessary to re-state the provisions of section 34(2)(c) of the Citizenship Act, which reads as follows:
Citizenship by conferral
(2)The Minister may, by writing, revoke a person’s Australian citizenship if:
…
(c)the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.
[My underlining]
Factors informing whether the Applicant remaining an Australian citizen is contrary to the public interest
I am of the view that in cases such as the instant one, three factors inform a decision-maker as to whether something is or is not of “public interest”. They comprise:
(i)the severity and seriousness of an Applicant’s offence(s);
(ii)if the Applicant’s offences had been known at the time of his Application for Australian citizenship, whether his application would have been refused for failing the ‘good character’ test requirement in section 21(2)(h) of the Citizenship Act; and
(iii)whether the Applicant has re-established his good character.
RELEVANT CONCEPTS ARISING FROM THE TERMS OF THE SUB-SECTION AND THE THREE ABOVE-MENTIONED FACTORS:
(i) “Public Interest”; (ii) Weighing public interest considerations for section 34(2); (iii) ‘Good character’
(i) “Public Interest”
Neither the Citizenship Act nor any ancillary instrument (such as the Australian Citizenship Policy)[8] provide any definition or guidance (respectively) about the concept of “the public interest” as it appears in section 34(2)(c) of the Citizenship Act.
[8] Department of Home Affairs, Australian Citizenship Policy (at 30 June 2020).
It is necessary to review the relevant authorities for guidance on an understanding of what constitutes “the public interest” for present purposes. The authorities reveal that the concept of “the public interest” comprises a multi-faceted concept that can be informed by one or more considerations. In addition, the weight or effect attributable to each of those considerations depends on their relative significance, determined by reference to the circumstances of each case.
In McKinnon v Secretary, Department of Treasury [2005] FCAFC 142, Tamberlin J noted:
“[11] The indeterminate nature of the concept of ‘the public interest’ means that the relevant aspects or facets of the public interest must be sought by reference to the instrument that prescribes the public interest as a criterion for making a determination….
[12] 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.”[9]
[9] See paragraphs [11]–[12].
In Sean Investments Pty Limited v McKellar (1981) 38 ALR 363, Deane J said:
“… where relevant considerations are not specified, it is largely for the decision-maker in the light of the matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards.”[10]
[10] See page 375.
In Director of Public Prosecutions v Smith [1991] 1 VR 63, the Appeal Division of the Supreme Court of Victoria noted:
“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 interests of an individual or individuals.”[11]
[My underlining]
[11] See paragraph [75].
His Honour, Judge Lehane, in Botany City Council v Minister for Transport and Regional Development (1996) 137 ALR 281 cited earlier High Court authority dealing with the expression “in the public interest” (my emphasis):
“[15] His Honour also referred to the statement by Mason CJ, Brennan Dawson and Gaudron JJ in O’Sullivan v Farrer [1989] HCA 61; (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.”[12]
[My underlining]
[12] See page 308.
In terms of where a decision-maker can look for the public interest, French CJ noted in Hogan v Hinch (2011) 243 CLR 506 that:
“[31] … The term ‘public interest’ and its analogues have long informed judicial discretions and evaluative judgments at common law. Examples include the enforceability of covenants in restraint of trade, claims for the exclusion of evidence on grounds of public interest immunity, governmental claims for confidentiality at equity, the release from the implied obligation relating to the use of documents obtained in the course of proceedings, and in the application of the law of contempt. When used in a statute, the term derives its content from ‘the subject matter and the scope and purpose’ of the enactment in which it appears. The court is not free to apply idiosyncratic notions of public interest.”[13]
[Internal citations omitted]
(ii) Weighing public interest considerations in the context of revocation of Australian citizenship on the grounds of a conviction(s) for serious offences pursuant to section 34(2) of the Citizenship Act
[13] See paragraph [31].
In Osorio and Minister for Immigration and Citizenship [2007] AATA 59, this Tribunal (per Deputy President Hotop) (“Osorio”) considered a factual matrix significantly different to the instant one. However, the sequence of the offending relative to the grant of Australian citizenship is common to both matters. In Osorio, the applicant committed a number of serious sexual offences against minor relatives. In the instant case, this Applicant has committed a singular offence.
The relevant factual background arising in Osorio involved an applicant born on 2 February 1961 in El Salvador who was also a citizen of that country. He arrived in Australia on 10 April 1991 as a permanent resident. That applicant applied for a grant of Australian citizenship on 10 May 1995. That application was approved on 19 June 1995 and on 26 September 1995, he became an Australian citizen by grant of a Certificate of Citizenship by the Minister. On 2 September 1996, in the Supreme Court of Western Australia, the applicant pleaded guilty to, and was convicted of, the following offences:
·three counts of sexual penetration of a child under the age of 16 years, who he knew to be his lineal relative, on unspecified dates between 1 January 1993 and 21 August 1994;
·one count of sexual penetration of a child under the age of 16 years, who he knew to be his lineal relative, on or about 23 December 1994;
·two counts of sexual penetration of a child under the age of 16 years, who he knew to be his lineal relative, on unspecified dates between 21 August 1994 and 19 May 1996;
·one count of indecently dealing with a child under the age of 16 years, who he knew to be his lineal relative, on an unspecified date between 1 January 1993 and 21 August 1994;
·one count of indecently dealing with a child under the age of 16 years, who he knew to be his lineal relative, on an unspecified date between 21 August 1994 and 19 May 1996.

In affirming the Minister’s decision to exercise the discretion to revoke the applicant’s citizenship, Deputy President Hotop said:
“35. 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 and continue thereafter to be a person of good character and, accordingly, not engage in criminal conduct which is incompatible with good character. It follows, in the Tribunal’s opinion, that it would be contrary to the public interest, for the purposes of s 21(1)(b) of the Act,[14] 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:
·was, unbeknown to the respondent and the Department, engaging in criminal conduct incompatible with good character at the time of the grant of Australian citizenship; and
·has not subsequently become a person of good character.”[15]
[14] This is a reference to s 21(1) of the Citizenship Act 1948 (Cth), which is the precursor to s 34(2) of the Citizenship Act.
[15] See Osorio, paragraph [35].
In WBU and Minister for Immigration and Citizenship [2007] AATA 1143 (“WBU”), this Tribunal (again per Deputy President Hotop), considered facts and circumstances similar to those in Osorio and the present case (specifically, in terms of the sequence between the time of offending and the subsequent conferral of Australian citizenship). Once again, Deputy President Hotop thought it "axiomatic” that it is in the public interest for a person who receives a grant of Australian citizenship to be a person of good character at the time of the grant of that citizenship. The learned Deputy President added that:
“… In the Tribunal’s opinion, it would be contrary to the public interest for the purposes of 21(1)(b) of the Act,[16] 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, unbeknownst 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.”[17]
[16] This is a reference to s 21(1) of the Citizenship Act 1948 (Cth), which is the precursor to s 34(2) of the Citizenship Act.
[17] WBU, paragraph [37].
In TRHL v Minister for Immigration and Border Protection [2015] AATA 803 (“THRL”), Senior Member Walsh of this Tribunal weighed public interest considerations in the context of convictions for serious offending pursuant to section 34(2) of the Citizenship Act.
The facts in TRHL should be approached with caution for the purposes of the instant application. In TRHL the offender/applicant was a British national who committed very serious offences in England from approximately his teenage years until he was nearly 40. After committing the offences in England, he took up residence in Australia and was subsequently naturalised here. He was then extradited to the UK to face prosecution for his offending in the UK. His citizenship was cancelled, and he applied to this Tribunal to have the Minister’s decision set aside. The circumstances of that application were such that the applicant sought to maintain his Australian citizenship so that he could seek a prison transfer from the UK back to Australia so he could serve his sentence in Australia, where his wife also resided.
While noting that the phrase “public interest” is not defined in the Citizenship Act, Senior Member Walsh went on to observe that:
“29. Broadly, the purposes of the Citizenship Act are:
·to automatically confer Australian citizenship on certain categories of person: Division 1 of Part 2 of the Citizenship Act;
·to enable certain categories of person to apply to the Minister to become Australian citizens: Division 2 of Part 2 of the Citizenship Act; and
·to provide that certain persons are to cease being Australian citizens in certain circumstances: Division 3 of Part 2 of the Citizenship Act.”[18]
[18] Ibid, paragraph [29].
Senior Member Walsh expressed the “axiom” referred to by Deputy President Hotop in Osorio and WBU in terms of a discussion about the difference between the granting and revocation of Australian citizenship:
“46. It is clear from the Citizenship Act itself, that a distinction must be drawn between cases dealing with the refusal of an application for Australian citizenship, on the one hand (which requires a consideration of various eligibility criteria, including whether a person was of ‘good character’ at the time of the Minister’s decision on the person’s citizenship application) and cases dealing with the revocation of Australian citizenship, on the other (which requires the person to have been convicted of a ‘serious offence’ after applying to become an Australian citizen and a consideration of whether it would be contrary to the ‘public interest’ for that person to remain an Australian citizen). The granting and revocation of citizenship involve different tests which are contained in different provisions in the Citizenship Act. That said, the notion of the ‘public interest’ has its source in the eligibility criteria set out in s 21 of the Citizenship Act, which criteria include the requirement that a person is of ‘good character’ at the time of the Minister’s decision on the citizenship application. ‘Good character’ being a reference to the ‘enduring moral qualities’ of a person. This much is accepted by the Applicant: refer to the Applicant’s SFIC at paragraph 44 above (at [29]). Consequently, the question of ‘good character’ is relevant and important in determining whether it is contrary to the ‘public interest’ that a person remain an Australian citizen under s 34(2) of the Citizenship Act. The seriousness and nature of the Applicant’s criminal offences, their duration and the Applicant’s sustained denial of guilt are indicative that the Applicant is not of ‘good character’. The Applicant’s ‘enduring moral qualities’ are indicative that the Applicant is not of ‘good character’: Irving.”[19]
[19] Ibid, paragraph [46].
(iii) Good character
As is the case with “public interest”, the term “good character” is not defined in the Citizenship Act. As mentioned earlier, the concept of “good character” emerges from the second of the three abovementioned factors involving the question that if the Applicant’s offences had been known at the time of his application for Australian citizenship, whether his application would have been refused for failing the “good character” requirement in section 21(2)(h) of the Citizenship Act.
There are two relevant authorities informative of the concept of good character. First, in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1999) 139 ALR 84 (‘Irving’), Lee J noted:
“… 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 while the latter is a review of subjective public opinion.”[20]
[20] See Irving, paragraph [94].
Second, in Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 (‘Fenn’), this Tribunal sought to equate “good character” with “those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home.”[21]
[21] See Fenn, paragraph [8].
In Osorio, Deputy President Hotop of this Tribunal examined and took into account factors such as (1) the nature of the applicant’s offending; (2) his conduct during his period of incarceration and subsequent release; (3) his employment record and vocational training; (4) his failure to participate in any sex offender treatment programs while in prison; and (5) since his release from prison, the applicant’s failure to undertake any psychological or other professional counselling regarding his offending behaviour or assessments regarding the risk of his reoffending and made the following findings:
“36. In the present case the applicant, at the time when he applied for, and was granted, Australian citizenship, was, unbeknown to the respondent and to the Department, engaging in the commission of a series of sexual offences against his step-daughter (who was then aged 13 years) which are extremely serious and utterly repugnant and which are grossly incompatible with good character. Clearly, the applicant was not a person of good character when he applied for, and was granted, Australian citizenship in 1995.
37.As regards the question whether the applicant has subsequently become a person of good character, the Tribunal notes that, although there is no evidence before it regarding the applicant’s conduct during the period of his incarceration from May 1996 to September 2001, there is evidence before it in the form of statutory declarations and letters of support from individuals attesting to his good character, good conduct and strong work ethic in the period since his release from prison in September 2001 (see paragraphs 27-28 above). The Tribunal also notes the applicant’s own evidence regarding his employment record and vocational retraining in Information Technology since his release from prison (see paragraph 26 above).
38.The Tribunal notes, on the other hand, that the applicant, according to his own evidence, did not participate in any sex offender treatment programs while in prison, and has not, since his release from prison, undergone any psychological or other professional counselling regarding his offending behaviour or assessments regarding the risk of his re-offending, although he has, according to his evidence, engaged in meditation sessions with Buddhist monks from 2003 to 2005 which he found very beneficial for the purpose of his rehabilitation (see paragraph 26 above). The Tribunal also notes the applicant’s evidence that he has not committed any offences since his release from prison, that he intends not to re-offend, and that he is committed to becoming a better citizen and a valuable member of the Australian community.
39.Having regard, however, to:
·the very serious and utterly repugnant nature of the applicant’s sexual offending, and the substantial period over which it occurred; and
·the absence of any objective professional evidence to the effect that the applicant has been successfully rehabilitated, that his good character has been re-established, and that there is no or, at most, minimal risk of his reoffending;
the Tribunal, notwithstanding the abovementioned evidence supportive of the applicant, is not satisfied that the applicant is presently a person of good character.”[22]
[22] Osorio, paragraphs [36]–[39].
Having regard to the comparative nature and extent of this Applicant’s offending, together with his employment history in this country and the evidence of the forensic psychologist, Dr James Freeman, Osorio should, for present purposes, be approached with a measure of caution. In the instant application, the Applicant also has letters of support from individuals attesting to his good character, and he has obtained psychological/psychiatric professional assessments about his offending behaviour, his risk of re-offending and the level of his rehabilitation.
In WBU, in turning his mind to whether the applicant before him had become a person of “good character”, Deputy President Hotop of this Tribunal noted the following:
“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).”[23]
[23] See WBU, paragraphs [38]–[39].
Deputy President Hotop counter-balanced his immediately preceding findings by saying that there were certain matters which caused him 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”[24] Deputy President Hotop identified the following factors that led him to the conclusion that the applicant had not re-established his good character:
[24] See ibid, paragraph [40].
·the fact that the sentencing judge made comments that he did not accept that the applicant was genuinely remorseful;
·the fact that the applicant’s treatment record on parole indicated he had taken on a “stance of vehement denial that the offences occurred” and, further, that professionally qualified people treating that particular applicant thought “there remain[ed] considerable justification, minimization, and much abdication of responsibility” on the part of the applicant; and
·the fact that similar professionally qualified people treating that particular applicant stated the applicant “was not observed to express any guilt, shame or remorse during the victim empathy component of the program”;
·in a further parole assessment report, that particular applicant was found to be “continuing to minimise his offending behaviour and … to displace blame for his actions onto the victim”;
·in a psychological counselling report, the reporting psychologist said that particular applicant “did not deny the offences”, he “minimised the impact and severity of the abuse” and that he otherwise sought to “abrogate personal responsibility” and, further, he apparently sued for “compensation … so as to avoid having to work for a living”;
·that particular applicant’s oral evidence (at the hearing) in which he:
odenied the seriousness of his offending of which he was convicted;
oblamed the victim for initiating his behaviour;
oaccused the victim of manipulating him into continuing his unlawful behaviour;
odenied he had committed one of the offences with which he had been charged;
oaccused his victim of lying to obtain an award of criminal injuries compensation;
omade comments that one of the treatment programs were “counter-productive”, “demoralising” and “dehumanising”.
Having regard to, inter alia, the above factors, Deputy President Hotop was “… 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.”[25]
[25] WBU, paragraph [42].
Having regard to the instant factual matrix, the analogous observations that can be made about this Applicant – in terms of whether he is of good character - may be shortly summarized as follows:
·whether or not the sentencing judge accepted that the Applicant was genuinely remorseful;
·whether the Applicant’s period on parole indicated he had taken on a “stance of vehement denial that the offences occurred” and, further, whether professionally qualified people treating that particular applicant thought “there remain[ed] considerable justification, minimization, and much abdication of responsibility” on the part of the applicant; and
·whether there are (aside from Dr Freeman) similar professionally qualified people treating the Applicant who may have found or observed that the Applicant “was not observed to express any guilt, shame or remorse during the victim empathy component of the program”; and
·whether, there was any evidence from the Applicant (or from another source) in which he:
odenied the seriousness of his offending of which he was convicted;
oblamed the victim for initiating his behaviour;
oaccused the victim of manipulating him into continuing his unlawful behaviour; or
odenied he had committed one of the offences with which he had been charged.
It is worth noting a particular point of distinction between WBU and the instant application. WBU was decided before expiration of that applicant’s parole period. In the instant matter, the Applicant became eligible for parole on 2 March 2017 and was released on parole on his first application on 4 September 2017.[26] Further, the Applicant now before the Tribunal has obtained a supportive report from the forensic psychologist, Dr James Freeman, in February 2018, some six months after his release on parole.
[26] Exhibit 2, Report of Dr James Freeman dated 20 February 2018, page 3, paragraph [4.4].
As noted earlier, Senior Member Walsh of this Tribunal in TRHL said that the reference to “good character” (for present purposes) comprises a reference to the “enduring moral qualities of a person”. The learned Senior Member thought that the question of “good character” is both relevant and important in the determination of whether it is contrary to the “public interest” that a person remain an Australian citizen under section 34(2) of the Citizenship Act. Ultimately, the learned Senior Member found that in relation to the applicant before him, the criminal offences that had been committed, the duration of that offending history, and the applicant’s sustained denial of guilt were indicative that he was not of “good character”. Further, the learned Senior Member formed the view that the “enduring moral qualities” of the applicant before him were indicative that he was not of “good character”.
Chapter 11 of the Citizenship Policy provides as follows:
“What is good character
‘Good character’ refers to the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship (refer to What is good character).
…
Definition of good character
The term ‘good character’ is not defined in the Act. Therefore, the Federal Court and the AAT have used the ordinary meaning of the words, and made reference to dictionary definitions. Most cases have adopted the following definition from the Full FC judgment in Irving v Minister for Immigration, Local Government and Ethnic Affairs ((1996) 68 FCR 422; 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 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 while 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.
In this context, ‘moral’ does not have any religious connotations. The phrase ‘enduring moral qualities’ encompasses the following concepts:
• characteristics which have been demonstrated over a very long period of time
• distinguishing right from wrong
• behaving in an ethical manner, conforming to the rules and values of Australian society.
The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.”[27]
FIRST FACTOR INFORMATIVE OF THE ‘PUBLIC INTEREST’ – THE SEVERITY AND SERIOUSNESS OF THE APPLICANT’S OFFENDING
[27] The introduction to the Citizenship Policy says: “The role of Citizenship Policy is to support the Australian Citizenship Act 2007 (the Act). Citizenship Policy provides guidance on the interpretation of, and the exercise of powers under, the Act and the Australian Citizenship Regulations 2007 (the Regulations)”.

In the Applicant’s SFIC, the following comments appear:
“34. There is no dispute about the offence or its seriousness. [the Applicant] pleaded guilty and in doing so admitted all the elements of the offence. He has shown remorse, both at sentencing and subsequently in interview with a forensic psychologist.
…
36. [The Applicant]’s sentence of 3 years’ imprisonment was at the lower end of the range. Sentencing information indicates that this is in the bottom 10% of offenders who have pled guilty and received a period of actual imprisonment. The most common period is 6 to 9 years imprisonment. [the Applicant]’s sentence expressly considered both personal deterrence and his good prospects of rehabilitation.
37. The clear conclusion is that the judicial officer regarded [the Applicant] at the lower end of the scale in terms of offenders.”[28]
[Internal footnotes omitted]
[28] Exhibit 1, Applicant’s SFIC, page 6.
The material discloses a statutory declaration made by the Applicant on 5 November 2016. It should be remembered that the Applicant was sentenced on 11 March 2016 and released on parole on 4 September 2017. Therefore, this statutory declaration was made while the Applicant was serving his term in actual custody. In this statutory declaration, the Applicant says:
“12. I was convicted of one count of rape on 11 March 2016, after pleading guilty. This was my only criminal offence in my life. I have learnt from this and pledge not to commit this or any crime again…
…
23. I am extremely remorseful for the conduct that I was convicted for. For this reason I pleaded guilty at my trial. I am ashamed of it.
24. I am a person of strong character, and I do not want this to be my legacy. When I come out of prison, I pledge to make amends to the community by being a contributing member of society. I want to further my education as well.”[29]
[29] Exhibit 7, Section 37 T Documents, T9, page 83-84.
In submissions made on behalf of the Applicant, his legal representative said:
“It was a repugnant violation of another human being, there’s no question of that. No way does [the Applicant] seek to put a gloss on that, there’s no way that, in my submissions, I seek to put a gloss on that. But it was an isolated incident (indistinct). It was entirely out of character. And we know this from the learned sentencing judge’s remarks and we know this from Dr Freeman’s report.”[30]
…
“In my submission, a good man has done one bad thing. Only thing. He’s paid a significant price for his (indistinct). He has, in colloquial terms, he’s paid his debt to society. And it’s not the role of the Minister or the tribunal standing in the shoes of the Minister, in the exercise of administrative (indistinct), to have a second go at what is (indistinct) punished for, otherwise in many ways, in my submission, he’s an exemplary young man who has come back from something that might crush others or (indistinct) an Australian citizen and there really is no reason why he (indistinct).”[31]
[30] Transcript, 22 August 2018, page 16 lines 19–24.
[31] Ibid, page 22, lines 22–29.
The sentencing remarks of His Honour Dorney DCJ made on 11 March 2016 speak to the severity and seriousness of his offence:
“It is clear that your conduct on that occasion was persistent. It is clear that your conduct on that occasion absolutely ignored the resistance that your de facto had shown; and it’s clear that you exercised a degree of force in which the particular offence occurred. While the schedule does show that immediately after the offence you indicated you were sorry, the alleged joke that was told immediately after this makes one a little concerned about the extent of that remorse…It is concerning that in your interview with the police you denied the rape and, in fact, you revealed ‘circumstances’, according to your version of what occurred, that it was consensual.
…indications given in the schedule of facts that the complainant was crying during this time and particularly in circumstances where there were children in the house as well.
…
…Because of a similar background to the complainant, you obviously had common interests with her. That kind of background explains a little about what occurred – but, of course, it is no excuse for the violence which was perpetrated, both of a sexual nature and a physical nature…
…
As indicated by the learned Crown prosecutor, there are disturbing features of this case, particularly the force that was used, which was such that the complainant in question was unable to resist. There was also clearly what she referred to, I think quite correctly, as a ‘breach of trust’…and there was a degree of persistence which caused the complainant to cry and protest as to ‘why’ it was happening – and the persistence was demonstrated by the fact that you proceeded to ejaculation in the circumstances.
…”[32]
[32] Exhibit 7, Section 37 T Documents , T7, page 52, lines 21–32;40–42; page 53, lines 19–23; page 55, lines 1-8.
There seemed little or no contest between the parties about the severity and seriousness of the offence committed by the Applicant on 19 November 2014. The head custodial term of imprisonment imposed upon him comprised three years. As against that, it should be remembered that the learned sentencing judge noted that “The range in this case…would not go as high as five years, and it’s clear that I have selected a part of that range near the lower end of that range...” Despite the undoubted physical and emotional trauma suffered by the victim, the learned sentencing judge also noted that “There was no continuing effect of a physical nature which have been revealed to the Court, although as I earlier indicated, it is clear there were probably some emotional effects – but there has been no victim impact statement.”[33]
[33] Transcript, 30 August 2019, page 55, lines 8–11.
The learned sentencing judge, also noted “Other aspects of punishment, of course, include protection of society and, allied to that, the matter of general deterrence, which I give recognition to.”[34] In this regard, I am mindful of the following provisions that apply to the sentencing process and that are demonstrative of the severity and seriousness of the Applicant’s offending:
(i)the provisions of section 9(1) of the Penalties and Sentences Act 1992 (Qld) (‘Penalties and Sentences Act’) dealing with, inter alia, the need for offenders to experience the deterrent effect of sentences and that the Queensland community is adequately protected from further offending conduct; and
(ii)the provisions of section 9(2) of the Penalties and Sentences Act which stipulates that a sentence of imprisonment should only be imposed by a sentencing court as a last resort.
[34] Ibid, lines 32–34.
There can be no other finding than that the Applicant’s offending is of both a severe and serious nature having regard to:
·the nature of the head custodial term of three years imposed upon him;
·the abovementioned concessions appearing in the Applicant’s SFIC, in his statutory declaration of November 2016, and in submissions made on his behalf during the hearing;
·the sentencing remarks of His Honour Dorney DCJ, about the circumstances of the offence, including some of its ‘disturbing’ features;
·His Honour Dorney DCJ’s imposition of a head custodial term of three years, despite the Applicant’s relative young and complete lack of any prior offending; and
·the provisions of sections 9(1) (deterrence) and 9(2) (imposition of custodial terms as a last resort) of the Penalties and Sentences Act.
Thus, the severity and seriousness of the Applicant’s offending is a factor which weighs moderately, but not determinatively, in favour of a finding that the Applicant remaining an Australian citizen is contrary to the public interest.
SECOND FACTOR INFORMATIVE OF THE ‘PUBLIC INTEREST’ – THE GRANT OF CITIZENSHIP IN 2015
The Applicant was granted Australian citizenship pursuant to the Citizenship Act. Section 21(2)(h) of the Citizenship Act requires an applicant to satisfy the Minister that they were of good character.
The circumstances of the Applicant’s offending, relative to the grant of citizenship, are that (1) he applied for Australian citizenship on 25 August 2014; (2) that application was approved on 23 September 2014; (3) he committed the rape offence on 19 November 2014; (4) he was charged with committing this offence on 10 December 2014; and (5) Australian citizenship was conferred on him on 25 January 2015. Therefore, (1) this Applicant committed the very serious offence of rape some two months prior to the conferral of Australian citizenship upon him, (2) he was charged with the offence of rape roughly one month prior to the grant of citizenship; and (3) while the Applicant committed the subject offence three months after applying for citizenship, two months after the citizenship was approved, but two months prior to its conferral upon him – it can be fairly said that it was not known to the Respondent that the Applicant had committed the rape offence against his former de facto partner two months prior to the conferral of Australian citizenship.
It is reasonable to assume that if, prior to the conferral of Australian citizenship on 25 January 2015, the Respondent knew of the Applicant’s offending conduct in November 2014 – assuming that information were available to the Respondent – the Respondent would have most likely (and at the very least) deferred any grant of Australian citizenship until the pending rape charge had been dealt with by a court or otherwise processed by the prosecuting authorities.
There are two resulting comments that can be made. First, it is reasonable to assume that were the circumstances of his offending (in November 2014) known to the Respondent prior to conferral of citizenship (in January 2015), the Respondent would have surely formed the view that:
(i)the Applicant was not a person of good character at the time of commission of his offence; and
(ii)that he was not a person of good character at the time of the Respondent’s conferral of Australian citizenship to the Applicant in January 2015.
Second, for completeness, having regard to the circumstances of the conduct constituting the rape charge, it is, in my view, very unlikely that any evidence the Applicant could have adduced at any time prior to the conferral of citizenship (in January 2015) would have rebutted a finding that he was not of good character.
Thus, the very likely refusal of Australian citizenship to the Applicant in January 2015 (due to the very strong likelihood of him failing the good character requirement), were his offending conduct known to the Respondent, is a factor that weighs moderately, but not determinatively, in favour of a finding that the Applicant remaining an Australian citizen is contrary to the public interest.
THIRD FACTOR INFORMATIVE OF THE PUBLIC INTEREST – WHETHER THE APPLICANT HAS RE-ESTABLISHED HIS ‘GOOD CHARACTER’
A procedural item
Prior to a discussion about the evidence, it is, in my view, necessary to explain the nature and sequence of how the evidence was adduced at the hearing. I make these comments without in any way intending to criticise how the representatives of the parties conducted their respective cases. In my respectful observation, both advocates and their respective instructors were exemplary in the conduct of the case and were helpful towards the Tribunal at every stage prior to and including this hearing.
The hearing record will demonstrate that the matter proceeded over three allocated hearing days. For convenience, I will refer to them as ‘day 1’, ‘day 2’ and ‘day 3’. Only one hearing day (day 1) was originally allocated to this matter. This was because – and the parties have every right to conduct the matter in this way – the Tribunal was not to receive any oral evidence. Instead, the respective representatives originally intended to summarise and address the written evidence by way of oral submissions.
However, as day 1 evolved, it became readily apparent that particularly with regard to the expert evidence of Dr James Freeman, the Tribunal would be faced with the difficult task of having to draw certain broad and, at times, quite speculative, inferences about precisely what Dr Freeman intended to say in his written reports.[35] The respective representatives invited the Tribunal to draw inferences that, of course, suited the posture of the case they were presenting. I became concerned about deciding the matter on the basis of (1) no lay or expert oral evidence from the makers of statements/reports sought to be relied upon by the respective parties, and (2) writing a decision based largely on the drawing of inferences urged upon me by those representatives about what the makers of those statements/reports intended to say in those statements/reports.
[35] There are two documents produced by Dr Freeman in this proceeding. The first is Exhibit 2, which comprises his substantive report dated 20 February 2018. The second is Exhibit 3, which comprises a follow-up letter sent by the Applicant’s representatives to Dr Freeman and which is drafted in a ‘question/answer format’.
Noting there had been no request from either party to decide the matter on the papers pursuant to section 34J of the Administrative Appeals Tribunal Act (Cth) 1975 (the “AAT Act”), and acting both out of an abundance of caution and an intention to ensure the sanctity and integrity of the hearing, I formed the view that the Tribunal should exercise its discretion to adjourn the hearing to allow Dr Freeman to give oral evidence at the hearing.
The parties also directed me to the High Court’s decision in Minister for Immigration and Citizenship v SZIAI and Anor [2009] HCA 39, where a majority of the court said the following:
“[1] …In the exercise of its review function, the tribunal may obtain such information as it considers relevant. In this sense it has an inquisitorial function. That does not, however, impose upon it a general duty to undertake its own inquiries in addition to information to it provided by the applicant…
...
[25] Although decisions of the Federal Court concerned with a failure to make obvious inquiries have led to references to a ‘duty to inquire’, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal…is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error…”[36]
[My underlining]
[36] At pages 430, 431 and 436.
Section 33(1)(c) of the AAT Act relevantly provides that:
“(1) In a proceeding before the Tribunal:
…
(c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.”
Accordingly, the hearing was adjourned until day 2, which was set down primarily for the receipt of Dr Freeman’s evidence in chief and his cross-examination. For understandable logistical reasons, one of the representatives involved in the conduct of the matter hearing could not attend the resumed hearing on day 2, and thus the proceeding was adjourned to day 3. Day 3 involved the receipt of Dr Freeman’s evidence in chief, his cross-examination and re-examination, and closing submissions of the respective representatives.
The Applicant’s SFIC
In the SFIC filed on his behalf, the Applicant says:
“Post-offence behaviour
40. [The Applicant] began his sentence of imprisonment on 11 March 2016. While in prison [the Applicant] was employed as a ferrous metal worker. There is no indication from the Corrective Services documents that he was anything other than a model and compliant prisoner. He was described as ‘polite and courteous towards staff, he is complient [sic] and his behaviour is of acceptable standards.’ There is no indication that there were any disciplinary problems.
41. [The Applicant] was granted parole on his first application. Dr Freeman who is a forensic psychologist with experience working with the parole board, notes that being granted parole on the first attempt is a positive as it indicates his low recidivism risk.
42. Since his release on parole, [the Applicant] has fully complied with his curfew and other conditions. There is no indication of concern from parole personnel.
Prospect of reoffending
43. The sentencing remarks speak positively of [the Applicant]’s good prospects for rehabilitation. The report by Dr Freeman, the expert forensic psychologist, puts the risk of re-offending in the low category. It is important to note that there is no lower category. Further, Dr Freeman notes that sexual recidivism is one of the least likely committed crimes. It is also Dr Freeman’s expert opinion that [the Applicant]’s offence ‘appears particularly uncharacteristic in nature’.
Ties with, and contribution to, Australia
44. [The Applicant] contributes to the Australian community in a variety of ways.
45. He is employed since his release on parole and so is an economically contributing member of Australian society.
46. He actively participates in his church community, and also with the [name of community association redacted] Community Association as the character references from [Rev G K] indicates. This participation includes contributing to social and sporting activities.
47. [Rev G K] also speaks highly of [The Applicant]’s character as someone who has known him for over 10 years. [Reverend G K] is in a position to know the depth of [the Applicant]’s Christian faith.
48. [The Applicant] has strong ties with Australia, with many of his close family being here.
…”[37]
[Internal footnotes omitted]
[37] Exhibit 1, Applicant’s SFIC, pages 7–8.
The Applicant’s SFIC says that the Applicant “also relies on: A) Expert report by Dr James Freeman, forensic psychologist, dated 20 February 2018; B) Character reference by [Rev G K] dated 21 February 2018.”[38] I will, later in these Reasons, traverse the evidence of Dr Freeman. Rev G K was not called to give oral evidence. I will now deal with each of the statements, both lay and expert, in the material.
[38] Ibid, page 1.
Statement by the Applicant
In his statutory declaration of 5 November 2016,[39] made while the Applicant was still serving his custodial term, the Applicant said the following things:
[39] See Exhibit 7, Section 37 T Documents, T9, pages 83–85.
“…
4. I have spent the past 11 years making Australia my home.
5. I have minimal ties with my former homeland, as all my immediate family is in Australia. I have no contacts in [name of country redacted] or [name of country redacted].
6. Soon after arriving in Australia, I began learning English so that I could find employment.
7. For most of my life in Australia, I have been in full-time employment. I worked as a kitchenhand at Le Cake, a security guard at In Front security, and a security guard at MSS Security.
8. I am Christian by faith. I attended church at the [name of church deleted] Presbyterian for my first 4 years in Australia, and even after I stopped attending due to my busy schedule, I was still involved in the church community. I was [Office held – in local community organisation deleted] in 2013 and 2014.
9. I am involved in the [name of community deleted] community in Brisbane, assisting with youth events and trying to be a role model for the younger generation.
10. My family also heavily relies on me. I am the eldest son of my mother, [name of Applicant’s mother deleted], and in [name of country redacted]ese culture. [sic]
11. Culturally, as the eldest son I am Head of my family. My father is deceased.
…
18. Before I was in prison, I used to drive my mother to work, and help her out with whatever she needed. As she is a single mother now, because my father passed away in 2005, she relies on me to help take care of my younger brothers. Even though they are adults now, they still require support, and I want to be a role model for them.
19. We are a very close family, and we help each other out whenever we can.
20. My aunt, [name of Applicant’s aunt deleted] has three young children. As she is always busy, as she is a student and also working, she often calls on me to pick up the kids from school or to come over and help her out.
21. I also help out financially if [name of Applicant’s aunt deleted] or another member of my family needed assistance. Our family is very close, and I would not hesitate to help someone out.
22. I call both [name of Applicant’s aunt deleted] and my mother [name of Applicant’s mother deleted] every day now that I am in prison. I worry that I am away from them and that I cannot support them as I did before.
…
24. I am a person of strong character, and I do not want this to be my legacy when I come out of prison, I pledge to make amends to the community by being a contributing member of society. I want to further my education as well.
25. My prison record is impeccable and positive, and I will continue to maintain that in future.
26. I am working in prison at the moment, and have begun my Certificate III in Welding, so that I can improve my employment prospects for when I return to the community.
…
32. I am committed to improving my future and I see my future being in Brisbane. My family and my community need me, and I would never jeopardise that again.
33. Australia has been good to me. It is where my family and support network is. On my release I pledge to give back to society…
…”[40]
[40] Ibid.

As was the case in WBU, the offending in TRHL was paedophilic in nature. In TRHL, the Applicant propounded his innocence throughout the criminal law process that dealt with his offending. In the instant case, upon being charged, the Applicant retained legal representation, took appropriate and competent legal advice and ultimately entered his own plea of guilty to the charge brought against him. He was then convicted and sentenced without the public cost of a lengthy trial before judge and jury. As noted by the learned sentencing judge:
“The mitigating features, on the other hand, are also important. You have no criminal history. You have made a guilty plea and, although it might be seen to be relatively late, it was done in circumstances in which two further charges on the indictment were not continued with and there was no necessity for the trial to continue, which of course then relieved the complainant from having to give evidence in her own right. As I say, I am required to take the guilty plea into account and I do.”[102]
[102] Exhibit 7, T7, page 52, lines 13–18 (per His Honour Dorney DCJ).
Ultimately, the findings and comments of Dr Freeman I referred to earlier when I discussed WBU equally apply to TRHL. The Applicant’s unlawful conduct in TRHL is distinguishable from the instant case because the offending in TRHL involved paedophilic offending and, as opined by Dr Freeman, the maintenance of a stance of innocence is much more pronounced in the case of paedophilic offenders as opposed to the type of offence committed by this Applicant.
I have sought to distinguish the decisions of Osorio, WBU, and TRHL from the instant facts. I accept the credentials and expertise of Dr Freeman. The challenges to Dr Freeman’s evidence were squarely and more than adequately addressed by him and, having regard to the totality of Dr Freeman’s evidence, the Tribunal can safely rely upon his findings in terms of (1) the Applicant’s level of remorse and insight into his offending, and (2) the very low prospects of the Applicant re-offending. While he is not qualified to give an opinion on whether or not the Applicant has re-established his good character for the legislative purposes of this decision, Dr Freeman’s evidence more than adequately serves as the connecting bridge between his opinions about the Applicant and a finding of re-establishment of good character.
Dr Freeman gave expert and cogent evidence within the field of his specialty as it relates to applicants of the type now before the Tribunal. His opinions are clinically-derived. As such, they do not address – and cannot be reasonably expected to address – the issue of whether the Applicant now demonstrates those enduring moral qualities necessary to be demonstrated by the Applicant to ground a finding that he has re-established his good character. Such an assessment and determination is policy-derived and is the sole responsibility of the administrative decision-maker taking a fulsome view of all the available evidence.
Having regard to the totality of the evidence, I am satisfied that the Applicant has re-established his good character to the extent it can be said he has properly accepted responsibility for his offending.
Thus, the Applicant’s successful re-establishment of his good character is, to my mind, a factor that determinatively weighs in favour of a finding that the Applicant remaining an Australian citizen is not contrary to the public interest. I should also point out that even if I were to find that the Applicant had failed to re-establish his good character, I would have great difficulty in making a finding that it would be contrary to the public interest for him to retain his Australian citizenship, because of the moderate and non-determinative weight I have attributed to the two earlier factors, namely:
·the severity and seriousness of the Applicant’s offending; and
·if his offences had been known at the time of his Application for Australian citizenship (in 2015), the likelihood that his application for citizenship would have been refused for failing the “good character” requirement in section 21(2)(h) of the Citizenship Act.
Having regard to the totality of the evidence, I am satisfied that it would not be contrary to the public interest for the Applicant to continue to have the privilege of Australian citizenship. Given this finding, I must now consider whether it is nevertheless appropriate to exercise the discretion to revoke the Applicant’s citizenship.
ISSUE 2: EXERCISE OF THE DISCRETIONARY POWER IN S 34(2) OF THE CITIZENSHIP ACT
The necessary considerations
The discretionary power to exercise the relevant discretion is contained in section 34(2) of the Citizenship Act. In determining whether it is appropriate to exercise this discretionary power:
“… 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.”[103]
[103] WBU, paragraph [44].
Consistent with earlier authority,[104] it is appropriate to have regard to all of the evidence in relation to the public interest test in s34(2)(c) of the Citizenship Act in determining whether or not the relevant discretion ought to be exercised.
[104] WBU; TRHL.
Factors weighing in favour and against the exercise of the discretion
It is contended on behalf of the Applicant that there are several factors militating against exercise of the discretion to revoke the Applicant’s Australian citizenship. Stated briefly, they are:
[(i)]“The serious offence:
34. There is no dispute about the offence or its seriousness. [The Applicant] pleaded guilty and in doing so admitted all the elements of the offence. He has shown remorse both at sentencing and subsequently at interview with a forensic psychologist…
[(ii)]The sentence was at the lower end of the scale
36. [The Applicant]’s sentence of three years’ imprisonment was at the lower end of the range. Sentencing information indicates that this is in the bottom 10% of offenders who had pled guilty and received a period of actual imprisonment. The most common period is 6 to 9 years’ imprisonment. [The Applicant]’s sentence expressly considered both general deterrence and his good prospects of rehabilitation.
37. The clear conclusion is that the judicial officer regarded [the Applicant] at the lower end of the scale in terms of offenders.
[(iii)]Stance of innocence
38…The expert evidence of Dr Freeman is that such a stance is not associated with increased risk of recidivism. He further notes that minimisation can follow from feelings of shame and guilt.
[(iv)]Post-offence behaviour
40. [The Applicant] began his sentence of imprisonment on 11 March 2016. While in prison [the Applicant] was employed as a ferrous metal worker. There is no indication from the Corrective Services documents that he was anything other than a model and compliant prisoner. He was described as ‘polite and courteous towards staff, he is complient [sic] and his behaviour is of acceptable standards.’ There is no indication that there were any disciplinary problems.
41. [The Applicant] was granted parole on his first application. Dr Freeman who is a forensic psychologist with experience working with the parole board, notes that being granted parole on the first attempt is a positive as it indicates his low recidivism risk.
42. Since his release on parole, [the Applicant] has fully complied with his curfew and other conditions. There is no indication of concern from parole personnel.
[(v)]“Prospect of reoffending
43. The sentencing remarks speak positively of [the Applicant]’s good prospects for rehabilitation. The report by Dr Freeman, the expert forensic psychologist, puts the risk of re-offending in the low category. It is important to note that there is no lower category. Further, Dr Freeman notes that sexual recidivism is one of the least likely committed crimes. It is also Dr Freeman’s expert opinion that [the Applicant]’s offence ‘appears particularly uncharacteristic in nature.
[(vi)]“Ties with, and contribution to, Australia
44. [The Applicant] contributes to the Australian community in a variety of ways.
45. He is employed since his release on parole and so is an economically contributing member of Australian society.
46. He actively participates in his church community, and also with the [name of community association redacted] Community Association as the character references from Rev G K indicates. This participation includes contributing to social and sporting activities.
…
48. [The Applicant] has strong ties with Australia, with many of his close family being here.
…”[105]
[Internal footnotes omitted]
[105] Exhibit 1, Applicant’s SFIC, pages 6–8.
The Applicant has committed a singular, albeit serious, offence. The offending is isolated to one victim and arose from the circumstances of one relationship. The principle causative factor behind the offending involved a child from that relationship and whether or not the Applicant was the child’s father. The Applicant resolved the impasse in that relationship by committing the serious offence of rape against a single victim. That said, he is not an offender with multiple offences either in the realm of sexual or other offending. He does not have a history of resorting to violent and/or criminal means to resolve difficulties and impasses in his life. I accept Dr Freeman’s evidence about the Applicant’s wariness regarding never again placing himself in a similar position.
For present purposes, putting aside my findings in relation to the veracity of Dr Freeman’s evidence, the principal contentions from the Respondent are that depriving the Applicant of his Australian citizenship would rightly mean that the status of “Australian citizen” would be removed from a person:
·who has committed a singular serious offence in November 2014 (though at no time re-offended); and
·who may very well have not been granted Australian citizenship in 2015, had the Respondent been aware of his offending history.
The Respondent’s contention is that there are few reasons weighing against the exercise of the discretion and this is principally due to the fact that the Applicant may continue to reside in Australia as the holder of an ex-citizen visa under section 35 of the Migration Act 1958 (Cth) (“Migration Act”). The Respondent further notes that even though this particular visa does not allow the Applicant to travel overseas and return to Australia, it would nevertheless be open to him to apply for a resident return visa if he intended to so travel. As also noted by the Respondent, the Applicant is currently the holder of an AQ-150 ex-citizen visa that is, for all intents and purposes, a permanent visa to remain in Australia, although it does not permit re-entry.[106]
[106] Exhibit 6, Respondent’s SFIC, page 7, paragraph [33].
I am mindful of decision of the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v Egan [2018] FCAFC 169 and, in particular, the requirement that the grant of an ex-citizen visa to an applicant is a mandatory relevant consideration. As the Full Court said:
“The consequence of this is that the Tribunal failed to take into account a mandatory relevant consideration. This consideration was that upon cancellation of his citizenship he would immediately be taken to have been granted an ex-citizen visa under section 35(3) of the Migration Act.”[107]
[107] At paragraph [17] (per His Honour Justice Perram).
Thus for the instant application, the granting of the ex-citizen visa must be a relevant consideration in relation to the exercise of the discretion of whether or not to revoke the Applicant’s citizenship. It is clearly an aspect which must be taken into account.
Most, if not all, of the adverse factors propounded on behalf of the Applicant consequent upon revocation of his Australian citizenship are rendered irrelevant because, put simply, revocation of his citizenship will not cause him to be deported. His entitlement to an ex-citizen visa is an automatic one consequent upon revocation of his Australian citizenship. The ex-citizen visa will entitle the Applicant to remain in Australia on a permanent basis. His status as a permanent resident will, if not entirely, then substantially, address the adverse impacts of the factors raised on his behalf.
For example, as a permanent resident of Australia he will still be able to have his medical conditions attended to exactly as he has done up until now, to continue to provide care and support to his mother, to maintain the long-held ties with his family in Australia and to continue his participation in his local Church parish and broader community. It is thus difficult to attribute any weight or relevance to the factors raised by the Applicant as apparently weighing against exercise of the discretion. As noted by the Respondent, the permanent resident status afforded to him by the ex-citizen visa means he will still enjoy many of the same rights and privileges granted to Australian citizens.
There was an understandable note of concern and apprehension in the evidence of the Applicant and the submissions made on his behalf that were his Australian citizenship to be revoked and an ex-citizen visa then granted to him, the Respondent could, at some future point, proceed to cancel that visa and to thus imperil the Applicant’s continued presence in Australia. While those concerns may have legal validity, any prospective or actual cancellation of the Applicant’s ex-citizen visa and his possible removal from Australia are presently matters of mere speculation and, on that basis, no substantial weight can be allocated to them.[108]
[108] As noted in both Osorio and WBU.
In WBU, the Tribunal noted:
“… furthermore, that, in those circumstances, [i.e., the grant of an ex-citizen visa] 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 to his wife… the Tribunal notes that the most serious adverse consequences which may result from depriving the applicant 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.”[109]
[My underlining]
[109] WBU, paragraphs [46]–[47].
It is necessary to both protect the Australian community and ensure its expectations are met when determining whether an Applicant should retain his/her privilege to Australian citizenship. A grant of Australian citizenship both confers benefits and imposes obligations. I have had regard to the factors weighing both in favour and against the exercise of the relevant discretion. Balancing those factors has led me to the conclusion that the factors weighing in favour of exercise of the discretion (to revoke) do not outweigh those weighing against its exercise. I accordingly do not exercise the discretionary power conferred by section 34(2) of the Citizenship Act to revoke the Applicant’s Australian citizenship.
Perhaps the words of the Applicant’s representative in closing submissions serve to state the Applicant’s position in the most eloquent way:
“…We have a situation where [the Applicant]…was an Australian citizen, he had satisfied the Minister that he was of good character. The question is, should that be revoked. And to use my words from last time, a good man did one bad thing. There’s no question about the badness of it, it’s a repugnant crime, and he did pay a significant price for his wrong, he has paid his debt to society. That prison sentence is expressly a deterrent from doing it again, and he has not reoffended, and the expert evidence before you is that he is unlikely, in fact low, low, low/very low, to reoffend.”[110]
[110] Transcript. 30 August 2019, page 51, lines 21-26.
SUMMARY OF FINDINGS AND CONCLUSION
Issue 1: Public Interest – section 34(2)(c) of the Citizenship Act
With reference to the factors informing a decision-maker about whether it is contrary to the public interest for the Applicant to remain an Australian citizen I have made findings about:
(i)the seriousness of the Applicant’s offending;
(ii)the likelihood of him not being granted Australian citizenship (in 2015) for failing the good character requirement in s21(2)(h) of the Citizenship Act, had the Respondent known of his offending; and
(iii)the Applicant having successfully re-established his good character.
As mentioned, the determinative weight attributable to the immediately preceding factor (iii) outweighs combined moderate weight I have allocated to the immediately preceding factors (i) and (ii). I am thus satisfied that it would not be contrary to the public interest for the Applicant to continue to have the privilege of Australian citizenship.
Issue 2: Exercise of the discretionary power in section 34(2) of the Citizenship Act
(i)I have found that the factors weighing in favour of exercising the discretion to revoke the Applicant’s Australian citizenship do not outweigh the factors against doing so; and
(ii)Accordingly, I do not exercise the relevant discretion to revoke the Applicant’s Australian citizenship.
DECISION
Pursuant to section 43(1) of the AAT Act, the decision of the Respondent dated 25 September 2017 is set aside and substituted with a decision to not exercise the discretion delegated by section 34 of the Australian Citizenship Act 2007 (Cth).
Annexure A

Exhibit Number

Description of Exhibit

Party

1

Applicant’s SFIC, dated 23 February 2018

App

2

Report of Dr James Freeman, dated 20 February 2018

App

3

Supplementary Report of Dr James Freeman, undated

App

4

Letter of Support: Rev G K, dated 21 February 2018

App

5

Letter of Support: Mr M M K, dated 21 February 2018

App

6

Respondent’s SFIC (with timeline), dated 20 March 2018

Resp

7

Section 37 T Documents (received 9 February 2019)

Resp

8

The QUT Web-Profile of Dr Freeman, undated

Resp

9

QSIS Graph (June 2018)

App

10

Documents Summonsed from DPP (various dates)

Resp

11

Series of Five Articles from Dr Freeman (various dates)

Resp

I certify that the preceding 158 (one hundred and fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis

........................[sgd]......................................
Associate
Dated: 30 June 2020

Date(s) of hearing: 22 August 2018, 29 July 2019, 30 August 2018

Solicitors for the Applicant: Salvos Legal Humanitarian

Counsel for the Respondent: A. L. Wheatley

Solicitors for the Respondent: Sparke Helmore Lawyers

Exhibit Number	Description of Exhibit	Party
1	Applicant’s SFIC, dated 23 February 2018	App
2	Report of Dr James Freeman, dated 20 February 2018	App
3	Supplementary Report of Dr James Freeman, undated	App
4	Letter of Support: Rev G K, dated 21 February 2018	App
5	Letter of Support: Mr M M K, dated 21 February 2018	App
6	Respondent’s SFIC (with timeline), dated 20 March 2018	Resp
7	Section 37 T Documents (received 9 February 2019)	Resp
8	The QUT Web-Profile of Dr Freeman, undated	Resp
9	QSIS Graph (June 2018)	App
10	Documents Summonsed from DPP (various dates)	Resp
11	Series of Five Articles from Dr Freeman (various dates)	Resp

Date(s) of hearing:	22 August 2018, 29 July 2019, 30 August 2018
Solicitors for the Applicant:	Salvos Legal Humanitarian
Counsel for the Respondent:	A. L. Wheatley
Solicitors for the Respondent:	Sparke Helmore Lawyers