1. The delegate's decision is a Tribunal reviewable decision: s 52(1)(b) of the Citizenship Act.
2. To be eligible for Australian citizenship by conferral, an applicant must satisfy the eligibility criteria set out in s 21 of the Citizenship Act. Relevantly, s 21(2)(c) requires that the person:

satisfies the general residence requirement (see section 22) ... at the time the person made the application.

(1) Subject to this section, for the purposes of section 21 a person satisfies the general residence requirement if:

(a) the person was present in Australia for the period of 4 years immediately before the day the person made the application; and

(b) the person was not present in Australia as an unlawful non-citizen at any time during that 4 year period; and

(c) the person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application.

1. Section 22(1C) of the Citizenship Act, provides though that:

... the person is taken not to satisfy paragraph (1)(a) if, at any time during the 4 year period mentioned in that paragraph, the person was:

1. Section 22(5A) of the Citizenship Act provides a discretionary exception to s 22(1C):

The Minister may decide that subsection (1C) does not apply in relation to the person if, taking into account the circumstances that resulted in the person's confinement, the Minister is satisfied that it would be unreasonable for that subsection to apply in relation to the person.

1. The Australian Citizenship Instructions ('ACIs') provide further guidance in relation to the circumstances that may be taken into account for the purpose of exercising the discretion in s 22(5A) of the Citizenship Act. The ACIs relevantly provide at paragraph 5.15.8:

Under s 22(1C), if a person has been confined in a prison ..., that person will need to spend four years in Australia since last being released from that confinement before being residentially eligible for citizenship.

However, s 22(5A) provides that s 22(1C) does not apply in relation to a person if, taking into account the circumstances that resulted in the person's confinement, the decision maker is satisfied that it would be unreasonable not to take those periods into account towards the residence requirement. (Tribunal's emphasis)

• circumstances that may be taken into account are not prescribed in Citizenship legislation therefore any information that an applicant puts forward must be considered. Under policy it is envisaged that the circumstances where this discretion may be exercised include: convictions quashed (set aside by the court)
• a pardon, that is, a free and absolute pardon granted because the person was wrongly convicted.

1. It was clear that Mr Gow does not satisfy the general residence requirement in s 22(1) of the Citizenship Act because he was confined in a prison during the four year period immediately before the day he lodged his application for citizenship, that is, in the four-year period between 27 August 2008 and 26 August 2012.
2. As a consequence of his period of imprisonment, pursuant to s 22(1C) of the Citizenship Act, Mr Gow does not satisfy the requirement contained in s 22(1)(a) that "the person was present in Australia for the period of 4 years immediately before the day the person made the application".

1. The Respondent contended that, taking into account the circumstances that resulted in Mr Gow's confinement, the Tribunal should not be satisfied that it would be unreasonable for s 22(1C) of the Citizenship Act to be applied to Mr Gow.
2. I was referred to the Revised Explanatory Memorandum to the Australian Citizenship Bill 2005 which relevantly explains the discretion in s 22(5A):

...

Subclause (5A) recognises that there may be cases in which a person is confined to prison ... where the circumstances resulting in that confinement are such that it would be appropriate for the Minister to have the discretion in subclause (5A) that the person would not be required to restart the 4 year period to meet the residence requirement for citizenship.

1. The circumstances that resulted in Mr Gow's confinement for his convictions of assault with an act of indecency and sexual intercourse without consent contrary to the Crimes Act 1914 are set out in the sentencing remarks of English J in R v Gow 2008/13421. The victim of was the 20-year old partner of Mr Gow's son. His Honour provided the following account of the circumstances surrounding the commission of the offences:

On this night the offender was working as a barman at the hotel, having recently commenced employment there. The hotel was a short walk from the offender's home .... With the offender's permission the complainant went and parked her motor vehicle on his front lawn before walking back to the hotel with a girlfriend. Once back at the hotel, the complainant drank a glass of champagne, commenced to drink a shot of black Sambuca and possibly had some more champagne. She recalls that although she felt a little drunk she did not feel the effects from the ecstasy tablet.

When the hotel closed the complainant, [the applicant's son] and ... [Mr Gow's then wife] went back to [the applicant's home]. The offender joined them after finishing his shift at 12.30am. During the course of the night the complainant went to the backyard where the offender, [the applicant's son and the applicant's then wife] were. After commenting on how cold it was, the offender said, "Let's go inside". The complainant followed him inside, thinking [his son and wife] were following.

The offender and the complainant sat in the lounge room area. The offender and the complainant had two and a half shot glasses of a liqueur combination. The complainant then had a sip of red wine to mask the taste of the shots. Feeling sick she rushed to the offender's en suite and vomited. [The applicant's wife] came and checked on her. The complainant fell asleep on their bed. She awoke as the offender carried her down the hallway and placed her on a bed in the spare room. Again she fell asleep.

At some stage after that she was woken by flashes that appeared similar to a camera flash. She noticed her bra and top had been pulled down to a point where her breasts were exposed. She was half asleep, and she believed [the applicant's son] was with her. She said, "Cut it out". She could feel her breasts being touched and moved around. A faint male voice said, "You have beautiful breasts. Your breasts are lovely". Her right breast was being sucked and licked. She said, "Stop it [the applicant's son], I'm tired. I have to go to work tomorrow". Her left nipple was being licked. Again she said, "Stop it [the applicant's son], I am tired".

The complainant then felt the tip of a semi-erect penis being rubbed across her cheeks and mouth from side to side. She shut her mouth to prevent the penis from entering. The male voice asked, "Can you suck it?". It was then she recognised the voice as that of this offender. She was shocked and she did not know what to say. The offender's penis then entered her mouth just past the level of her teeth. She sat up and the offender moved back. She got out of bed, pulled up her bra and top. She ran outside and found [the applicant's son] laying on the trampoline asleep with a blanket over him. She woke him and they went home to [their home]. Soon after arriving there she started to cry and indicated to him that his father had touched her.

1. In sentencing Mr Gow to a period of imprisonment for three years, seven months and six days, His Honour made the following remarks in relation to the factors of aggravation involved in the commission of the offences:

... What makes matters worse however and, to my mind, takes away the aspect of spontaneity is the use of his mobile phone to take photographs of her, a deliberate and considered action ... Not an isolated, spontaneous, impulsive action, but rather a series of actions demonstrating, as I have said, a degree of forethought. Actions upon someone who was in a place where she should have been able to feel safe, even in a highly intoxicated state. Someone who would have expected the father of her partner, the grandfather of her child, to "go that extra mile to look after her" if she got into strife.

...

A victim impact statement has been prepared and tendered. I have read its contents. She has been required to undergo counselling. She has had to relive her experiences many times over. She now finds herself a single mother with an inability to trust males.

There exist two factors of aggravation to which I have referred, and they are the vulnerability of the complainant and the fact that the offender was in a position of trust, as the father of her partner, the person in whose house she sought refuge in an intoxicated condition.

In mitigation the offender is a person of otherwise good character. Sadly, that does not in this instance give him much joy. All too often offences of this nature are committed by persons of otherwise good character. It is that otherwise good character that allows such offenders to escape detection. All too often, when offences of this nature are revealed, the complainant is not believed because others do not want to believe that an offender such as this offender would behave in such a vile, evil or disgusting way.

1. Mr Gow provided a statement. He said that although he was born in the UK, he no longer has any ties there. He is one of seven children who migrated with his family to Australia in April 1961 when he was approximately six months old. His family settled in Sydney and at the age of seven his family split up and he was sent to an orphanage and became a ward of the state.
2. At the age of ten years he went to live at Charlestown with the Gow family who fostered him and several other wards of the state. He has lived in the Newcastle area since that time (43 years) and later changed his name by deed poll so that his children could have the family name of Gow.
3. He first married at the age of 20 and settled in the Belmont area while working in the coal mines. There were two children, and there are also now grandchildren. After divorcing 12 years later, he met his second wife and they have lived in their own home near Newcastle and they have two children. The events of the last few years have taken their toll and this marriage ended in divorce after 16 years.
4. Mr Gow wrote that he has been in constant employment since leaving school in 1976. Since 2004 he has been employed as a workplace trainer/assessor, delivering training to prospective hospitality employees. He has been working for several years with young people that are long-term unemployed, come from dysfunctional backgrounds or disadvantaged job seekers. Through government-funded initiatives, he has assisted a large number to obtain casual or permanent employment.
5. He has also been employed as the manager of a hotel/club. Both these roles involved overseeing overall operations, training and recruitment of all staff while enforcing the principle of the responsible service of alcohol and gaming services. Mr Gow has produced numerous certificates to confirm the study and his work experience.
6. As a member of the local community, he has given his time to numerous organisations such as the surf club and soccer club, and fund raising and other activities in relation to his daughters' school.
7. Mr Gow admits he has made a mistake and pleaded guilty to the charges. Prior to this, he has always been a person of good character and a law-abiding citizen. In all sentencing reports, he said, it has been confirmed that he had lived a law-abiding lifestyle with focus on providing support and role-modeling for his family. The risk of recidivism was said to be low. He noted that there was no violence involved in the circumstances that led to his imprisonment.
8. He submitted that he is a valued member of society and it is not in the national interest to deny him citizenship. From the testimonials enclosed, it is obvious that he is a well-respected person in the Newcastle area, and that he had made a serious error in judgment for which he has been punished.
9. The Respondent contended that, having regard to the circumstances of Mr Gow's confinement as set out above, in applying the policy, the Tribunal should not be satisfied that it would be unreasonable for s 22(1C) of the Citizenship Act to apply in relation to Mr Gow.
10. Whilst I am not bound to apply policy guidelines such as the ACIs of the kind referred to (see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409), I may do so and, indeed, the Tribunal will usually apply the guidelines unless there are cogent reasons in a particular case for not doing so: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634 at 639-645; Re Dainty and Minister for Immigration and Ethic Affairs (1987) 6 AAR 259 at 267; and Minister for Immigration, Local Government and Ethnic Affairs v Roberts [1993] FCA 80; (1993) 41 FCR 82 at 86.
11. The ACIs provide two useful examples of circumstances where the discretion in s 22(5A) of the Citizenship Act may be exercised: first, where a person's conviction is quashed (set aside by a court); and second, where a person is granted a free and absolute pardon because the person was wrongly convicted. Neither of these apply in this case.
12. However the list is not exhaustive and there may be other circumstances that warrant exercise of the discretion in s 22 (5A) of the Citizenship Act.
13. Mr Gow provided no evidence of any other relevant circumstances that resulted in his confinement that are of a similar nature to the examples set out in the ACIs. Even if a far broader interpretation were available - and I do not think this to be the case - the evidence provided by Mr Gow was of a general character nature and, other than his contrition, noting his previous good character, the sentencing remarks that suggest the risk of recidivism is low, and that there was no violence involved in the offence, he did not otherwise address the circumstances that led to his imprisonment. All these matters, it is clear from the totality of the sentencing remarks, were taken into account in sentencing him to a term of imprisonment. I find there to be no circumstances that resulted in his confinement such that it would be unreasonable for the discretion in s 22(1C) of the Citizenship Act to be exercised in favour of Mr Gow.
14. I was informed that, depending on his future travel movements, Mr Gow is likely to satisfy the general residence requirement in December 2014, and that, in the meantime, he remains a permanent resident of Australia, and is free to enter, live and work in Australia as he pleases.

1. For the reasons set out above, the Tribunal affirms the decision to refuse Mr Gow's application for Australian citizenship.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.

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