Issac and Minister for Immigration and Citizenship
[2012] AATA 765
•2 November 2012
[2012] AATA 765
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/3917
Re
Francy Issac
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 2 November 2012 Place Melbourne The reviewable decision, being the decision of the Minister for Immigration and Citizenship made 30 August 2012 to cancel the Class BN Subclass 136 (Skilled‑Independent) visa issued to Francy Issac, is affirmed.
..........[sgd]...............................................
Deputy President J W Constance
CATCHWORDS
CITIZENSHIP AND IMMIGRATION – cancellation of a BN Subclass 136 (Skilled-Independent) visa – Direction [no. 55] – Visa refusal and cancellation under s 501 Migration Act 1958 (Cth) – character test – substantial criminal record – primary considerations – the seriousness and nature of the conduct – the risk that the conduct may be repeated – strength, duration and nature of ties to Australia – other considerations – impact on Australian business interests – extent of any impediments if removed from Australia to home country – effect on members of family – decision under review affirmed
LEGISLATION
Customs Act 1901 (Cth) ss 233(1)(b) and 233BAB(5)
Migration Act 1958 (Cth) ss 499(1), 499(2A), 500, 501(2), 501(6) and 501(7)
CASES
R v Padberg [2010] SASC 189
SECONDARY MATERIALS
Direction no. 55 – Visa refusal and cancellation under s501
REASONS FOR DECISION
Deputy President J W Constance
2 November 2012
INTRODUCTION
Mr Issac first entered Australia in March 2008 as the holder of a Class BN Subclass 136 (Skilled-Independent) visa. As the purpose of this visit was to activate his visa, he remained in Australia for only two days.
In July 2008 Mr Issac returned to Australia, intending to settle here. As he entered through Customs he was found to be in possession of child pornography. He was subsequently convicted of importing child pornography and sentenced to imprisonment for 12 months. The sentence was suspended.
In August 2012 the Minister cancelled Mr Issac’s visa as he suspected Mr Issac did not pass the character test set out in section 501 of the Migration Act 1958 (Cth) and Mr Issac failed to satisfy him that he did pass the test.
Mr Issac has applied to the Tribunal to review the Minister’s decision.
For the reasons which follow the decision of the Minister will be affirmed.
FACTUAL BACKGROUND
Unless stated otherwise the following findings of fact are based on the evidence of Mr Issac.
Mr Issac was born in India in 1981. He is now 31 years old. He was educated in India and gained a Diploma in Tool Engineering. In 2004 he obtained employment in Singapore where he worked and lived until he migrated to Australia.
Most of the time Mr Issac lived in Singapore he shared accommodation with seven or eight men. During this time Mr Issac and others downloaded child pornography from the internet onto a computer in the shared house. Mr Issac watched some, but not all, of this pornography.
About three months prior to entering Australia in July 2008 Mr Issac copied data from the computer in the shared house onto his own computer.
When Mr Issac entered Australia he carried with him 231 DVDs. Four of these discs contained prohibited material comprising 38 pornographic films, 15 of which contained child pornography. The same material was on Mr Issac’s computer, a hard drive and a thumb drive, all of which were in Mr Issac’s possession. At the time he entered Australia Mr Issac was aware that he was carrying with him prohibited material including child pornography.
Conviction and Chief Judge’s Sentencing Remarks
In the County Court of Victoria Mr Issac pleaded guilty to one count of importing child pornography contrary to s.233BAB(5) of the Customs Act 1901 (Cth). He also consented to the Court taking into account his importation of offensive material, being films, contrary to s.233(1)(b) of the same Act. The Court convicted Mr Issac of the offence charged and sentenced him to be imprisoned for 12 months. He was released immediately on his entering a recognizance to be of good behaviour for a period of 12 months.[1]
[1] Exhibit A2 pp.65-73.
The Court described the material which was the subject of the charges as follows:
The films showed a child, approximately 14 years of age, being raped at knifepoint, a child of about 15 years of age engaging in sexual acts with adult males, female children between the ages of 13 and 16 engaging in sexual intercourse with other female children and adult males, five films depicting rape, cruelty, torture, humiliation and sexual assaults on female children aged between 5 and 16 years, female children aged between 10 and 12 years masturbating and performing oral sex on an adult male, two female children between 10 and 12 years of age masturbating each other, a film depicting a female child of about 10 years of age masked and bound with ropes around her throat, wrists and ankles and whilst restrained a dildo was forced into the child’s mouth. The child was also masturbated by an adult male, had her anus and genitals exposed and was anally penetrated by a male and by an object.
The material the subject of the charge taken into account contained a variety of films featuring adults being subjected to drugging, violence, rape and bestiality, involving dogs and horses.[2]
[2] Exhibit A2 pp.66-67.
I will refer to further findings of fact in considering particular issues in these reasons.
THE RELEVANT LEGISLATION
14.Subsection 501(2) of the Migration Act 1958 (Cth) provides:
(2) The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test: and
(b)the person does not satisfy the Minister that the person passes the character test.
Subsection 501(6) paragraph (a) provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7));
Subsection 501(7) paragraph (c) provides:
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more;
The power of the Tribunal to review the decision to cancel Mr Issac's visa is provided by Section 500. Under subsection 499(1) the Minister has given written directions (Direction [55] which commenced on 1 September 2012) as to the exercise of the power to review the decision. Subsection 499(2A) provides that these directions must be complied with.
THE CHARACTER TEST
As Mr Issac has been sentenced to a term of imprisonment of 12 months he has a substantial criminal record in accordance with subsection 501(7) of the Act. As a result, in accordance with subsection 501(6) he does not pass the character test and I must consider whether the Tribunal should exercise the discretion to cancel his visa.
DIRECTION [55]
Under the heading General Guidance, Direction [55] provides in part:
The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
In paragraph 6.3 the Minister sets out the principles that provide the framework within which the task of exercising the discretion to cancel a visa should be approached. The principles include the following:
Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
The Direction requires the decision-maker (in this case the Tribunal) to take into account the primary and other considerations relevant to the individual case.[3] Primary considerations should generally be given greater weight than the other considerations.[4]
[3] Direction 55, paragraphs 6.2(3) and 8(1).
[4] Direction 55, paragraph 8(4).
Paragraph 9(1) provides:
In deciding whether to cancel a person’s visa, the following are primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)The strength, duration and nature of the person’s ties to Australia;
c)The best interests of minor children in Australia;
d)Whether Australia has international non-refoulement obligations to the person.
REASONING
Primary consideration (a) – protection of the Australian community from criminal or other serious conduct
I note that I must have regard to matters set out in paragraph 9.1 being:
·the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens;
·the nature and seriousness of the person’s conduct to date;
·the risk to the Australian community should the person commit further offences or engages in other serious conduct[5].
[5] ‘Serious conduct’ is defined to include conduct which may not constitute a criminal offence.
The nature and seriousness of Mr Issac’s conduct to date
I am satisfied that the conduct of Mr Issac in importing the material which he did was abhorrent in its nature and extremely serious. As has so often been observed, offences such as the possession and importation of child pornography are not “victimless” crimes. It is those persons (such as Mr Issac) who create a market for such material and thereby encourage the abuse of children by those who produce it. In accordance with the provisions of paragraph 9.1.1(1) (a) and (b) the criminal activity of Mr Issac is very serious.[6]
[6] Direction 55 paragraph. 9.1.1(1) (a) and (b) provide:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
As was said by Doyle CJ in R v Padberg[7]:
It is clear that there is an international market in child pornography, as well as a market within Australia. Those who are part of the market for this material share the responsibility for what is done to the children depicted. The creation and dissemination of child pornography material is a serious social evil, and those who acquire and use such material must be held accountable for the part that they play in the persistence of this social evil.
[7] [2010] SASC 189 at paragraph 20.
On the basis of the evidence of Mr Issac I am satisfied that at the time he imported the offending material he was aware of the content of at least some of the material determined to be child pornography, that he was aware that it was classed as child pornography and that he was aware that it was illegal to bring it into Australia and to possess it here. I am satisfied further that he had viewed some of the pornographic material prior to coming to Australia and that he intended to retain it for his own viewing after his arrival.
In his sentencing remarks Chief Judge Rozenes said, in part:
As I understand it, the basis of the plea made on your behalf was that, although you intentionally imported the pornographic material, you did not specifically intend to import child pornography, but rather, were reckless as to whether child pornography was part of the material. I am not entirely convinced that this accurately depicts your state of mind, as it appears from the way in which the materials are collated on your computer that you understood the category of “teens”.[8]
[8] Exhibit A2 p.67.
I am satisfied that Mr Issac’s conduct cannot be properly described as “reckless” in relation to all items of child pornography, although at times in giving evidence he attempted to so explain it. Under cross-examination he admitted that he had downloaded and watched child pornography[9] and that when he brought the material into Australia he knew some of it was illegal.[10]
[9] Transcript 11.10.12 p.31, pp.38-39.
[10] Transcript 11.10.12 p.36.
Mr Issac admitted that he had watched most, but not all, of the material described by the Chief Judge in paragraph 4 of his remarks. Paragraph 4 is reproduced in paragraph 12 of these reasons. He denied having watched material showing very young children, but admitted watching material involving children who appeared to him to be as young as 13 years.
Mr Issac’s evidence before me is inconsistent with the submissions put to the County Court on his behalf and to the experts relied upon in support of Mr Issac’s application to the Tribunal, to which I shall refer later. I am satisfied that at times Mr Issac attempted to mislead the Tribunal and others as to the state of his knowledge of the offending material at the time he brought it into Australia.
In contrast to his evidence in cross-examination to which I have referred, the following exchange took place, also in cross-examination:
Counsel for the Minister: So after you bought your computer three months prior and you downloaded – you copied, I suppose, the contents of the DVDs to your computer and to your hard drive, you kept all the DVDs and you brought them all into Australia?
Mr Issac: I was not doing it intentionally. I didn’t check the contents of all the number of CDs involved. But most of the CDs I bought, they were all music and movies which I carry – which I wasn’t – I didn’t check the contents of the CDs or that I had.[11]
[11] Transcript 11.10.12 p.30.
In a Statutory Declaration made by Mr Issac on 29 March 2012 [12] he stated, in part:
I told [Darwin] Court that I was really fond of movies & music from my early age and used to buy movies, download, and copy from friends. I told [the] court that I packed all my things myself, and I had those CD’s for [a] long time, copied from the desktop PC which we were using as common as none of us had [a] laptop at that time. I told [the] court that most of them were movies, music, course materials, pictures, and some CD’s with porn material. I admitted to [the] court that I watched porn of girls who looks [sic] young but not of any child. I told [the] court that I had no interest in illegal porn and that I was careless and reckless to copy the whole folders before checking the contents.
This Statutory Declaration was provided by Mr Issac to the Department in support of his contention that his visa should not be cancelled. I am satisfied that this statement as to the circumstances of Mr Issac’s importing the illegal material was misleading. One of the factors to which I am to have regard in considering the nature and seriousness of the conduct in question is whether the person has provided false or misleading information to the Department.
[12] Exhibit A2 pp.131-132.
I have taken into account that, on the evidence before me, since committing the offence Mr Issac has not been convicted of any other offences nor has he engaged in any serious conduct. However this does not change my conclusion as to the nature and seriousness of the conduct involved.
The risk to the Australian community should the person commit further offences or engage in other serious conduct
Paragraph 9.1.2(1) provides guidance in considering the risk to the Australian community and requires the Tribunal have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and
b)The likelihood of the person engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the person re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The nature of the harm to the Australian community in general, and to the children of the community in particular should Mr Issac engage in further criminal and/or serious conduct of the nature of that in which he has engaged in the past, would be very serious. It would cause physical and mental injury to any children and adults involved in the production of this type of material, encouraged by those who view and/or distribute it.
As to the likelihood of his engaging in further criminal or other serious conduct, I have taken into account the evidence of Mr Issac that he now appreciates the effects of the production of child pornography on its victims and that he appreciates his role in downloading, viewing and possessing it. He gave evidence that he will never engage in such conduct again.
Dr Jager, Forensic Psychiatrist, assessed Mr Issac in September or October 2012 for the purposes of these proceedings. He provided a report dated 8 October 2012[13] and gave evidence. He confirmed his opinions in his report when he gave evidence.
[13] Exhibit A3.
In response to the question “Is Mr Issac likely to re-offend?” Dr Jager reported:
There is no history of conduct disorder as a child, and no history of personality disorder, in particular, antisocial personality disorder. There is no mental disorder. There is a history of one offence. In the last four years, there have been no allegations of further offending. The offending behaviour should be viewed in the context of a young man living in a group home in Singapore with friends all from India, coming from a background of growing up in a strict Catholic household with no sexual experience. Although the offence he has committed is designated as a sexual offence in this country, in medical terms, Mr Issac is not a sexual offender. He has never behaved inappropriately in a sexual manner with any other person. He denies any sexual attraction towards pre-pubertal children, and therefore does not have paedophilia. He admits an attraction to sexually mature females. The law designates a certain age under which a person is designated as a child, but in terms of sexual attraction, it is physical sexual maturity that is relevant to a diagnosis of paedophilia, rather than an arbitrarily-defined age. Therefore, Mr Issac does not have any risk factors from a psychiatric perspective that suggest that he will ever re-offend in this manner.
In response to the question “Is he a serious risk to the Australian community?” he reported:
The best information able to be gathered about Mr Issac’s risk to the community should be an observation of how he has behaved over the last four years. None of the data that has been presented to me suggests there has been any question of him committing another offence. The highest incidents of re-offending in cases of actual sexual offences is in the first three years. Mr Issac has well passed that time period without any offending. I do not consider him to be at an elevated risk of harm to others compared to the general community.
When he gave evidence Dr Jager said that he accepted Mr Issac’s assertion that he had no sexual interest in pre-pubertal children and on this basis he determined that Mr Issac was not a paedophile. He did not make an assessment as to whether Mr Issac had a sexual interest in post-pubertal children under 18 years of age.
Dr Kennedy, Clinical & Forensic Psychologist, assessed Mr Issac in May 2009. The assessment was requested by Mr Issac’s legal representative for the purposes of the County Court proceedings. Dr Kennedy provided a report dated 2 June 2009.[14]
[14] Exhibit A2 p.100.
Dr Kennedy reported in part:
Mr Issac’s actions can be understood in the context of his background, and limited opportunity for sexual expression. Socially, he is immature and somewhat naïve. He has no antisocial attitudes. His evaluation did not show vulnerability for sexual offending in the future. He has recently developed a relationship with a young woman.
There is no evidence based on the current evaluation that there is a threat to reoffending, and treatment is not required, although discussions with a psychologist may assist him in being more socially active, and allow him to establish social skills that may be lacking currently.[15]
[15] Exhibit A2 p.107.
In his sentencing remarks the Chief Judge said, in part:
I accept that you are genuinely remorseful. … I also accept that your prospects of rehabilitation are excellent and that that [sic] you will be the subject of a sex offenders reporting regime for a period of 8 years.[16]
The report of Dr Kennedy was in evidence before the Chief Judge when he delivered these remarks.
[16] Exhibit A2 p.71.
Ms Lavinda Paul gave evidence. She is the sister of Mr Issac’s wife, Libinda Paul.
Ms Lavinda Paul lives in Australia with her husband, Mr Padmanabhan. She first met Mr Issac in February 2011 after she learned that Mr Issac had contacted her sister by the internet. Since that time she and her husband have met with Mr Issac regularly.
Within a week of their first meeting Mr Issac advised Ms Paul and Mr Padmanabhan that he had been convicted of importing child pornography. He showed them documents relating to his conviction. Ms Paul did not enquire of Mr Issac as to the details of his conduct as at the time she felt it would be too embarrassing for him to discuss them. Notwithstanding what she was told Ms Paul continues to hold Mr Issac in high regard. In her opinion Mr Issac is unlikely to engage in similar offensive conduct in future.
An affidavit by Mr Padmanabhan is in evidence.[17] He did not give vive voce evidence.
[17] Exhibit A7.
Mr Padmanabhan considers Mr Issac to be a member of his family and a close personal friend. It is his opinion that Mr Issac’s criminal conduct was completely out of character and that he is of good character. Although Mr Padmanabhan does not specifically express the opinion, I infer from the contents of his affidavit that he is of the opinion that Mr Issac is unlikely to engage in similar offensive conduct in future.
James Bishop, the Vicar of a Church in Melbourne at times attended by Mr Issac, provided an affidavit [18] and gave vive voce evidence.
[18] Exhibit A5.
From the time of Mr Issac’s first involvement with the Church he made the clergy aware of his conviction and in Father Bishop’s opinion he demonstrated genuine remorse and is most unlikely to re-offend.
Mr Watson is the Fabrication Manager employed by the Delta Group by which Mr Issac is presently employed. He is the immediate supervisor of Mr Issac. Mr Watson provided a statement dated 26 March 2012[19], an affidavit sworn 18 September 2012[20] and gave vive voce evidence.
[19] Exhibit A2 p.109.
[20] Exhibit A4.
I accept Mr Watson’s evidence that Mr Issac is a valued employee of the Delta Group and if he remains in Australia he will be able to continue in his present position. Mr Watson has supervised Mr Issac for four years. From his knowledge of Mr Issac and having read the Chief Judge’s remarks as to the nature of the pornographic material, Mr Watson is of the opinion that Mr Issac will not re-offend and poses no risk to the Australian community.
I have taken into account statements as to the good character of Mr Issac by the following persons:
·Father O’Connor[21]
·Father Williams[22]
·Ms Giurguis[23]
·Ms Libinda Paul[24]
·Ms Lopez[25]
·Ms Lavinda Paul[26]
·Father Punnakal[27].
[21] Exhibit A2 p.113.
[22] Exhibit A2 p.114.
[23] Exhibit A2 p.115.
[24] Exhibit A2 pp.116-117.
[25] Exhibit A2 pp.118-119.
[26] Exhibit A2 p.121.
[27] Exhibit A2 p.124.
These references are of little assistance in determining the issue before me. Some authors appear to be unaware of the nature of the offence Mr Issac has committed or, in the case of Father O’Connor, the nature of Mr Issac’s application. Ms Libinda Paul, Mr Issac’s wife, described his conduct as a “careless mistake”[28]; Mr Lopez’s opinion was based on the understanding that “he will never do that [import child pornography] intentionally and that it was a huge misunderstanding.”[29]
[28] Exhibit A2 p.116.
[29] Exhibit A2 p.118.
Having considered all of the evidence I have come to the conclusion that it is unlikely that Mr Issac will engage in importing child pornography into Australia again. However I am not satisfied that there is no risk that he will engage in conduct such as possessing illegal pornographic material (including child pornography) in Australia should he be able to remain in this country.
I note Mr Issac’s assertion that he will never again engage in such conduct. However I am not satisfied that Mr Issac is a reliable witness, for the reasons I have already given. I am satisfied that after committing the offence Mr Issac has sought to minimize the seriousness of his conduct by suggesting that all the child pornography was imported recklessly or carelessly. This is inconsistent with the evidence he gave to the Tribunal in cross-examination.
The evidence of experts is generally regarded as being of particular assistance in assessing the risk that a person will engage in further criminal or serious conduct. However in this case I am not persuaded to accept the opinions of Dr Jager. I am concerned that Dr Jager did not attempt to assess whether Mr Issac had an attraction to post-pubertal children under the age of 18 years as he regarded it as irrelevant “for … medical purposes”.[30] His evidence was directed to the risk of Mr Issac committing offences such as sexual assault against children and I am not satisfied that he properly considered the risk of Mr Issac committing further offences relating to the possession of pornography. I have also taken into account that Dr Jager’s opinions are based on his having been told by Mr Issac that he only watched adult heterosexual pornography and that he would not watch violent videos including rapes.[31] On the basis of Mr Issac’s evidence I am satisfied that some of the history he gave Dr Jager was not correct. Dr Jager said that Mr Issac’s evidence before the Tribunal that he has watched a violent video depicting rape would alter his opinion as to the reliability of the history he was given.[32]
[30] Transcript 11.10.12 p.58.
[31] Exhibit A3 p.3.
[32] Transcript 11.10.12 p.60.
I also place less weight on the opinions of Dr Kennedy than I would otherwise have done, as I am satisfied that he was not given an accurate history by Mr Issac. Dr Kennedy reported that:
·Mr Issac reported to him that he believed that the material he downloaded was legal[33];
·Mr Issac “emphasised that he had no desire to break the law or consume child pornography”[34];
·Mr Issac “believed that the women involved in any of the movies that he has seen were at least aged 20 years.”[35]
On the basis of Mr Issac’s evidence this history was incorrect.
[33] Exhibit A2 p.104.
[34] Exhibit A2 p.104.
[35] Exhibit A2 p.104.
I accept that Ms Lavinda Paul, Mr Padmanabhan, Father Bishop and Mr Watson all regard Mr Issac as unlikely to re-offend. However none has professional qualifications to make such an assessment and the weight of their evidence must be considered in the light of their being lay witnesses.
In assessing the evidence of Father Bishop I have taken into account his strongly held view that these proceedings were “almost like a retrial, and the county court judge was wrong, and here’s – here’s the real punishment coming to you now four years nearly later.’[36] This statement was not responsive to any questions asked of Father Bishop. His statement has caused me to regard his evidence as coloured by his ill-informed view of the role of this Tribunal.
[36] Transcript 11.10.12 p.90.
Having considered all of the evidence, each of the following factors caused me to conclude that the need to protect the Australian community from criminal conduct or other serious conduct weighs heavily in favour of the cancellation of Mr Issac’s visa:
·the nature and seriousness of Mr Issac’s conduct in importing the material;
·the nature of the harm to individuals and the Australian community should he engage in further criminal or other serious conduct.
This assessment has been affected to a minor degree by my conclusion that the likelihood of Mr Issac’s reoffending is not high. Nevertheless the risk cannot be totally disregarded. This leads me to conclude, having taken all factors into account that the need to protect the community continues to weigh heavily in favour of cancellation of Mr Issac’s visa.
Primary consideration (b) – the strength, duration and nature of the person’s ties to Australia
Paragraph 9.2(1) of the Direction provides:
Reflecting the principles at 6.3, decision-makers must have regard to:
a) How long the person has resided in Australia, including whether the person arrived as a young child, noting that:
i.Less weight should be given where the person began offending soon after arriving in Australia; and
ii.More weight should be given to the time the person has spent contributing positively to the Australian community.
b) The strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Mr Issac has resided in Australia since 31 July 2008.[37] As he offended as he arrived in Australia less weight is to be given to his period of residence.
[37] Exhibit A2 pp30-31.
In contrast, more weight is to be given to the subsequent four year period. I am satisfied that Mr Issac has contributed positively to the Australian community in that time. He obtained a Masters Degree in Advanced Manufacturing Technology from an Australian University[38]. He gained part-employment with the Delta Group from October 2008 while he was studying and has worked for that organisation ever since. I accept the evidence of Mr Watson that Mr Issac is a hard-working and very competent employee who has contributed to his employer’s business.
[38] Exhibit A2 p.132.
I take into account also the evidence of Mr Issac that he has taken part in community activities in his church and has done volunteer service.
Mr Issac has some family links with Australia in that he has three cousins in Australia with whom who he has had some contact. I am not satisfied that this link is particularly strong. His strongest family link appears to be with his sister-in-law and brother-in-law with whom he has regular contact. However I note that neither of them is an Australian citizen, an Australian permanent resident or has an indefinite right to remain in Australia. The strength of his family links within Australia is reduced by his immediate family members, namely his wife, his parents and his brother all residing in India. He has social links with friends in Australia.
Mr Issac has a strong employment link with the Delta Group. Further, he owns a home in Australia.
Consideration of the above factors causes me to conclude that the strength, duration and nature of Mr Issac’s ties to Australia weigh slightly in favour of Mr Issac’s continuing to be able to reside here.
Primary consideration (c) – Best interests of minor children in Australia affected by the decision
Primary consideration (d) – International non-refoulment obligations
Neither of these considerations is relevant in this application.
Other considerations as set out in the Direction
Paragraph 10 of the Direction sets out other considerations which must be taken into account where relevant. I note that these considerations are generally to be given lesser weight than the relevant primary considerations.
The relevant other consideration listed in the Direction are:
……
b) Impact on Australian business interests;
……
d) The extent of any impediments that the person may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
i. The person’s age and health;
ii. Whether there are substantial language or cultural barriers; and
iii.Any social, medical and/or economic support available to them in that country.[39]
[39] Direction 55, paragraph 10(1).
On the basis of the evidence of Mr Watson I am satisfied that there will be some impact on the business of the Delta Group if Mr Issac’s visa is cancelled, but I am satisfied that this impact will not be significant other than in the short-term. Mr Watson agreed that if Mr Issac is unable to remain in Australia someone would eventually replace him and then it would be business as usual.[40]
[40] Transcript 11.10.12 p.79.
As to any impediments Mr Issac may face if removed from Australia to India, I am satisfied that these would be minimal. His wife, parents and brothers reside in India and he would return to live with his wife and near to his family. There are no substantial language or cultural barriers as he lived in India until he was 24 years old and has returned to India for visits while living overseas.
Mr Issac is young and he has no health issues. He is well educated and there is no evidence to suggest that he will not be able to maintain basic living standards in the context of what is generally available to other citizens of India. After he completed his education in India he was able to obtain employment in the field in which he has continued to work.
Other considerations not referred to in the Direction
Paragraph 10 does not exclude considerations other than those set out in that paragraph.
I have considered the effect on other members of Mr Issac’s family who are not Australian citizens, permanent residents or people with a right to remain in Australia indefinitely. I accept that there will be some effect on family members already in Australia and on Mr Issac’s wife, Ms Paul. His return to India will no doubt cause the plans of a number of others to change significantly. However I am satisfied that these considerations should be given minimal weight as against the other matters to which I have already referred.
Having considered all of the considerations apart from the primary considerations I have come to the conclusion that they weigh in favour of Mr Issac being permitted to remain in Australia, but not significantly so.
Balancing all of the considerations
Of all considerations (both primary and other) to which I have referred, the protection of the Australian community weighs heavily in favour of cancellation of Mr Issac’s visa. The factors which I consider weigh in favour of refusing cancellation are not of substantial weight and do not outweigh the first primary consideration.
I am satisfied that balancing all of the considerations the preferable decision is that the decision under review be affirmed.
CONCLUSION
The reviewable decision, being the decision of the Minister for Immigration and Citizenship made 30 August 2012 to cancel the Class BN Subclass 136 (Skilled‑Independent) visa issued to Francy Issac, will be affirmed.
I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.
...........[sgd]....................................................
Associate
Dated 2 November 2012
Dates of hearing 11 and 22 November 2012 Advocate for the Applicant Mr K Esser Solicitors for the Applicant Global Immigration Services Advocate for the Respondent Mr T Eteuati Solicitors for the Respondent Clayton Utz