Lakhwinder Luffa and Minister for Immigration and Citizenship

ADMINISTRATIVE APPEALS TRIBUNAL )
)No: 2012/2393

GENERAL ADMINISTRATIVE DIVISION )

Re: LAKHWINDER LUFFA
Applicant

And: MINISTER FOR IMMIGRATION

AND CITIZENSHIP

Respondent
TRIBUNAL:             Deputy President J W Constance
DATE:                      29 August 2012
PLACE:                   Melbourne
CORRIGENDUM TO DECISION [2012] AATA 572
Pursuant to s 43AA of the Administrative Appeals Tribunal Act 1975 (Cth) the Tribunal directs the Registrar to amend the decision dated 29 August 2012 as follows:
1.   Paragraph 43 by deleting the figure 30 and adding the figure 19.
2.   Paragraph 44 by deleting the word two and inserting the word four.

………..............sgd JW Constance............
Deputy President
[2012] AATA 572

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2012/2393

Re

Lakhwinder Luffa

APPLICANT

And

Minister for Immigration and Citizenship

RESPONDENT

DECISION

Tribunal
Deputy President J W Constance

Date 29 August 2012

Place Melbourne
The reviewable decision, being the decision of the Minister for Immigration and Citizenship made 28 May 2012 to cancel the Class VB Subclass 886 Skilled - Sponsored visa issued to Lakhwinder Singh Luffa is affirmed.
……[sgd] JW Constance……..
Deputy President J W Constance
CATCHWORDS
CITIZENSHIP AND IMMIGRATION – cancellation of a Class VB Subclass 886 Skilled - Sponsored visa – Direction [no. 41] – 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 – whether the applicant was a minor when he began living in Australia - the length of time the applicant was ordinarily resident in Australia prior to engaging in criminal behaviour - relevant international obligations - other considerations – family ties, the nature and extent of any relationships – links to the country to which the applicant would be removed - hardship likely to be experienced by the applicant - decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499(1), 499(2A), 500, 501(2), 501(6), 501(7)

CASES
Jason Schuster-McFadyen v Minister for Immigration and Citizenship and Administrative Appeals Tribunal [2011] FCA 1303; (2011) 124 ALD 68

Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313
Rosson v Minister for Immigration and Citizenship [2011] FCA 194; (2011) 191 FCR 390

SECONDARY MATERIALS
Direction [no. 41] – Visa refusal and cancellation under s 501

REASONS FOR DECISION
Tribunal Deputy President J W Constance
Date 29 August 2012
A. INTRODUCTION

In 2006 Mr Luffa entered Australia as the holder of a Class TU Subclass 573 Higher Education Sector visa. Apart for a period of one month in 2008 he has resided in Australia since. In 2010 he was granted a Class VB Subclass 886 Skilled – Sponsored visa.
As a result of Mr Luffa having been convicted of a number of criminal offences, on 28 May 2012 a delegate of the Minister decided to cancel his visa. Mr Luffa has applied to the Tribunal to review this decision.
For the reasons which follow the decision of the Minister will be affirmed.
B. FACTUAL BACKGROUND
Unless otherwise stated the facts found in these reasons are based on the evidence of Mr Luffa.
Mr Luffa was born in India in 1987. For most of his childhood he lived with his parents on their farm. He was well-educated to Year 12 level.
In October 2008 Mr Luffa arrived in Australia. He took up residence in Melbourne and completed a two-year course of study. At the end of 2008 he was awarded an Advanced Diploma in Hospitality.
On 5 May 2011 in the Magistrates Court of Victoria, Mr Luffa pleaded guilty to, and was convicted of, the following:
oCharge 1 – assault with intent to rape;
oCharge 2 – indecent assault.
He was sentenced to an aggregate period of imprisonment of 42 months with a non-parole period of 18 months.
The maximum period of imprisonment which could have been imposed in respect of each offence was 2 years. The term of imprisonment could have been much longer had Mr Luffa been sentenced in the County Court.
At the time of the hearing of this application Mr Luffa was still in prison. He will be eligible for parole in September 2012.
The circumstances of the offences of which Mr Luffa was convicted are set out in the Reasons for Sentence given by Her Honour Magistrate Broughton.[1] Based on those Reasons I find that the facts leading up to the convictions are as set out in the following extracts.
The count in relation to the assault with intent to rape is getting ontop of the complainant, in a stationary taxi in which you were the driver and the indecent assault related to you ejaculating on her stomach in circumstances where you aware that she was not consenting or might not be consenting or while not giving any thought as to whether she was consenting or might not be consenting.
The circumstances are that you as taxi driver, collected [the victim], from the Lucky Coq nightclub. [The victim] had been out with a group of friends and at approximately 1am she left the venue. She had been drinking with her friends and having hailed a taxi, you collected her. She sat next to you in the front seat of the taxi. The summary of the circumstances of the offending indicate in a preliminary way that you were flirting with her and giving her compliments. That you attempted to touch her breast and touched her thigh whilst you were driving the taxi. That she rejected your advances and asked you to cease by saying “please stop.” Around the vicinity of the Costco Supermarket Footscray Road, Docklands, you stopped your vehicle. This was in circumstances where you had the fare to take her home and you detoured from the route towards her home into the Costco area which was off the track and a secluded area and you got ontop of her, instructing her to be quiet. She tried to push you off. You undid her bra and licked her nipples. You then lowered your trousers and underwear and then whilst holding your penis, you ejaculated onto her bare stomach. The victim had continued yelling and screaming and crying, hysterically, and struggling with you. After you had completed the simple act, you told her that you were very sorry. You obtained a rag from the taxi and wiped away semen from her stomach. You then returned to the driver seat and proceeded to drive [the victim] home and on route, the complainant was in a very distressed state, attempted to contact her husband with her mobile phone and he overheard his wife’s pleas over the telephone and contacted the police to report the assault. You didn’t take [the victim] directly to her home, you dropped her off about 200 metres from her home so certainly sufficiently close so she could get home and you told her to get out, she got out then you drove off. The assault was immediately reported and you were subsequently identified and arrested by the police and interviewed on the 11^th of October 2010. You supplied a voluntary DNA sample and ultimately there was semen found on [the victim’s] clothing and this was matched to you. You were charged and bailed on the 8^th of December 2010.
…
There was a level of pre-planning but I’m satisfied that there was a very short duration. Certainly, the, you, you certainly apologised and that is something of some consideration although that is limited to, somewhat, and you in terms of the circumstances, it was not until essentially you had ejaculated in circumstances where it’s a fact that [the victim] was crying, trying to push you away, screaming and yelling and it’s not until you had experienced your own sexual gratification that it was time for you to apologise, so whilst of course it is a mitigatory factor that you apologised, it needs to be seen in context of having completed your own sexual gratification in [sic] the unequivocal fact of the distress of [the victim] whilst that was taking place.
[1] Exhibit A1, vol.1 pp.182-191.
C. THE RELEVANT LEGISLATION
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 Luffa's visa is provided by Section 500.
Under subsection 499(1) the Minister has given written directions as to the exercise of the power to review the Minister’s decision. These directions are contained in Direction [no. 41] which commenced on 15 June 2009. Subsection 499(2A) provides that these directions must be complied with.
D. THE CHARACTER TEST
Mr Luffa does not pass the character test as he has a substantial criminal record as defined in subsection 501(7). This is conceded by Mr Luffa.
E. DIRECTION [NO. 41]
In Part B of Direction [no. 41] the Minister has set out considerations to be taken into account when a decision-maker (in this case the Tribunal) is not satisfied that a person passes the character test and therefore has to decide how to exercise the discretion to either cancel or refuse to cancel, a visa.
The Minister has determined two types of considerations:
(a)primary considerations, which must be considered;[2]
(b)other considerations, which may be relevant and, if so, must be considered.[3]
Generally, the other considerations should be given less weight than that given to the primary considerations.[4]
[2] Direction [no. 41] para.10.
[3] Direction [no. 41] para.11.
[4] Direction [no. 41] subpara.11(2).
F. THE PRIMARY CONSIDERATIONS
Primary consideration 1: the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence – paragraph 10(1)(a)
Included in the factors relevant to assessing the level of risk of harm to the community are the seriousness and nature of the relevant conduct and the risk the conduct may be repeated.[5]
[5] Direction [no. 41] para.10.1.
The seriousness and nature of the conduct – paragraph 10.1.1
In accordance with subparagraph 10.1.1(2)(c) and (d), rape, any other sexually-based offence and assault are considered serious. There is no reason why I should find otherwise in this application.
The Tribunal is required to accept the facts upon which the Magistrates’ Court accepted Mr Luffa’s plea of guilty and convicted him of the charges against him.[6] On the basis of these facts I am satisfied that Mr Luffa assaulted his victim and continued to assault her notwithstanding that throughout the assault she was screaming and asking him to stop. Although, as the learned Magistrate acknowledged, Mr Luffa apologised and drove the victim to the vicinity of her home, this occurred only after he had achieved sexual gratification. His action in not leaving the victim at the scene of the assault is a factor to be taken into account but does very little to reduce the seriousness of the conduct.
[6] Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313.
Mr Luffa gave evidence before me that he stopped assaulting his victim as soon as he understood she said “no” and meant that he should stop. I do not accept this evidence. When questioned further, Mr Luffa said that he stopped the assault “when she was resisting strongly.”[7] I am satisfied that Mr Luffa did not cease the assault on his victim until he had satisfied his sexual urge. Until this occurred he showed no regard for his victim’s protestations.
[7] Transcript 15 August 2012.
In assessing the seriousness of the conduct I have taken into account that the assault happened after his victim entered the taxi being driven by Mr Luffa in circumstances in which she was entitled to believe that she would be transported safely to her home. Mr Luffa’s actions amounted to a total breach of the trust placed in him by his victim. The events which followed were terrifying for the victim and have had ongoing effects upon her from which she may never recover. The learned Magistrate described the consequences for the victim in part as follows:
It is the emotional distress that has wrought havoc in [the victim’s] life. Her whole sense of safety has been completely compromised. She is a wife, mother and friend who had an engaging and capable life with all that that entailed. The impact on her ability to be a wife, her ability to be a mother, to engage with her friends, to feel safe in her home, to go about even the most basic of tasks has been compromised. She feels unsafe in her own home. It is clearly indicative that a woman, who intoxicated as she was, coming home from the venue and in a compromised state in any event, and particularly vulnerable, who of course was doing the right thing by getting into a taxi having been drinking, to go home to her family to find that you know where she lives, the person who has compromised her safety so profoundly, it is quite understandable that her sense of safety in her own home and community and the impact in terms of the rest of her family is one that can easily be accepted. She talked about having to leave, roam shopping centres because she can’t bear to be at home. She talked of her husband having to take time off work to support her. Her whole sense of self worth and the things that she was good at has been compromised. ...[8]
The circumstances in which the assault took place and the nature of the conduct involved add to the seriousness of the offences.
[8] Exhibit A1, pp.183-184.
Direction [no. 41] para.10.1.1 provides that the sentence imposed is considered indicative of the seriousness of the offender’s conduct to the community.[9] The maximum sentence available to the Court for each offence was two years which means that the term of imprisonment was towards the upper limit of the time available. However I note that a much longer sentence could have been imposed had the learned Magistrate determined that Mr Luffa be committed for sentence in the County Court.
[9] Direction [no. 41] Para.10.1.1.
The risk that the conduct may be repeated – paragraph 10.1.2
Paragraph 10.1.2 of the Direction provides that “[the] person’s previous general conduct and total criminal history are to be considered highly relevant to assessing any risk of re-offending.”
Mr Luffa’s good character and lack of other criminal history
Mr Luffa has no criminal convictions other than those already referred to. A number of witnesses have given evidence of his previous good character and this has not been challenged.
Report of Ms Warren, Consultant Forensic Psychologist
Ms Warren assessed Mr Luffa in April 2011, prior to his being sentenced. The report was prepared at the request of his solicitors and was provided to Her Honour Magistrate Broughton. Ms Warren reported in part:
Mr Luffa’s behaviour in the offence of indecent assault arose quickly and spontaneously and he acted on his sexual arousal without inhibiting thought. His sexual arousal occurred as a misinterpretation of the woman’s behaviour.
…
Interpretation of why he behaved as he did is that he was faced with an atypical situation for which he did not have well rehearsed responses. Known situations lead to habitual responses which in a well socialised person are not harmful to another. In novel situations, some individuals can behave atypically, as occurred with this man. His misinterpretation of her touch to his shoulder, and his thinking – she wanted a relationship – led to [sic]sexual response that he acted on primitively, forcibly, and felt as compulsive, without further thought. He did not seem to be aware of other offences committed by taxi drivers that might create uncertainty in the general public. Had he had that knowledge to the forefront of his mind, he would have had an additional means of inhibiting any response to any unanticipated sexual arousal to a passenger. The additional means is discussed as additional to what would be considered a normal inhibitory response expected of an individual performing a job such as taxi driver where there is an obligation to the care and safety of the customer. Plainly in this case all normal inhibitory responses failed and none other arose.
He presented as very aware that he had misinterpreted the woman’s behaviour. He was not seeking to imply that her touching of his shoulder was in any way an invitation to behave as he did. He does not express attitude of acceptance of sexual violence or coercion but he does impress as with lack of depth in his understanding beyond – it happened very quickly.
…
Other than the facts of the offence and the nature of the offence, the only other area of concern to this examiner is that he appears to lack curiosity about his motivation. That lack of curiosity is a less than adequate response of this young man. There is a minor element of avoidance or denial in that absence of curiosity, and the reason is postulated as his discomfort when he does examine his behaviour ‘… if I think about it I get depressed’. However, he does need to think about why he behaved as he did.
The lack just discussed above can be readily remedied by completion of a low level of intervention such as completion of a short course sex offender program. He is not considered in need of high level intervention but some follow up treatment is recommended to educate him and expand upon his own (limited) self generated understanding. The more extensive self censoring does not need reinforcing as it is commensurate with the crime, while accepting of self as a whole as ‘ok’ which is helpful for future functioning. Complete self condemnation could be self destructive and limiting. He has habits of reliability and punctuality that should render him a good candidate to complete any community or parole order that might be imposed.[10]
[10] Exhibit A1, vol. 1 pp.178-181.
Sentencing remarks
In her sentencing remarks the learned Magistrate said:
And I am satisfied that you have good prospects of rehabilitation. No [sic] only of course is the reality of having to take responsibility for your criminal behaviour in the sentence that is to be imposed, [sic] will give you time to think about that. The recommendations that Ms Warren makes are sensible and you are otherwise of good character and lack of, effectively all of the anti-social traits and matters that I have addressed in terms of your psychological profile, in my view are all protective issues. You are of otherwise fairly socially complainant and they’re all protective factors both for the community and bode well for your future rehabilitation.[11]
…
[11] Exhibit A1, vol.1 p.190.
Sex Offenders Program
Mr Luffa has completed the Sex Offenders Program as evidenced by the clinical notes of Mr Candlish, Consultant Psychologist, who conducted the program.[12] The course consisted of 24 three hour sessions and appears to come within the guidelines of that suggested by Ms Warren. Mr Luffa completed the course in early June 2012.
[12] Exhibit A1,vol.2 pp.89-94.
Mr Candlish provided a report dated 20 June 2012.[13] Amongst other matters he reported:
[13] Exhibit A1,vol.2 pp.81-84.
·Mr Luffa undertook the Static-99 test which is an actuarial measure of long-term potential risk for sexual offence recidivism in adult male sexual offenders;
·Mr Luffa’s score was three which placed him in the moderate-low risk category;
·of individuals with the characteristics displayed by Mr Luffa, 12%
re-offend over 5 years, 14% re-offend over 10 years and 19% re-offend over 15 years;
·the static-99 test considers only historical risk factors, dynamic risk factors have to be considered and were considered in Mr Luffa's case;
·Mr Luffa attended all sessions, his participation was appropriate and he was an active member of the group;
·Mr Luffa raised a number of questions concerning consent to sexual activity during group discussions; he appeared to benefit from the discussions;
·Mr Luffa acknowledged his offending behaviour and displayed considerable empathetic regard for his victim;
·in the opinion of Mr Candlish, Mr Luffa appears to have improved his overall risk manageability as a result of his participation in the program;
·Mr Candlish considered Mr Luffa to fall into the low risk category based on the consideration of static and dynamic risk factors and the presence of protective factors.

It is important to note that the risk of recidivism based on the Static-99 test is an actuarial assessment only. It does not mean that Mr Luffa has a 12% chance of re-offending within five years, rather it is the percentage of males with the factors present in Mr Luffa’s history who will re-offend within five years. It is necessary to consider the dynamic factors in addition as Mr Candlish has done.
Evidence of friends
Mr Rupinder Singh gave evidence and provided a statement dated 26 October 2011.[14]
[14] Exhibit A7.
Mr R. Singh and Mr Luffa have been friends since school days. Mr Singh has lived in Australia since 2005 and has maintained regular and frequent contact with Mr Luffa since Mr Luffa’s arrival in Australia.
Mr R. Singh did not know details of Mr Luffa’s offences but was aware that they involved sexual conduct without the consent of the other person involved. In his opinion such conduct was out of character for Mr Luffa and that he is genuinely remorseful for what he had done and will not repeat his offensive conduct.
Mr R. Singh has offered emotional and financial support (including providing housing) to Mr Luffa until he can re-establish himself in the Australian community should he be free to do so. He said also that he believed Mr Luffa’s family would support him although he did not provide convincing reasons for this belief as he did not have recent knowledge of the circumstances of the family.
Mr Lakhwinder Singh gave evidence and provided a statement dated 26 September 2011.[15]
[15] Exhibit A8.
Mr L. Singh has known Mr Luffa for approximately 12 years. They attended the same school in India and have remained in contact with each other in Australia.
Mr L. Singh is unaware of the details of the offences of which Mr Luffa has been convicted but understands the nature of the offences. In his opinion Mr Luffa is sorry for what he has done and will not pose a threat to the Australian community should he be able to remain in Australia.
Mr Luffa’s evidence
Mr Luffa gave evidence that as a result of his serving a period of imprisonment combined with his participation in the Sex Offenders Program he will not reoffend. He said that he has learned that his victim had always indicated to him that she was not consenting to his conduct and that his belief that she wanted a sexual relationship with him was wrong. He stated further that he now understands that he was in a position that caused his victim to trust him and that he had breached that trust.
I accept that Mr Luffa is genuinely sorry that he acted as he did and that he is remorseful for the harm he has caused to his victim. However I do not accept his evidence that he ceased his assault on his victim as soon as he realized that she was resisting and I am concerned that he expressed this view when he gave evidence before me. It was only when he was questioned that he admitted that he stopped his assault on his victim “when she was resisting strongly”[16] (emphasis added). I am not satisfied that Mr Luffa accepts that he continued his assault even though his victim was struggling to resist him and was screaming for him to stop.
[16] Transcript 15 August 2012.
Mr Luffa’s conduct in relation to the law
I am satisfied that Mr Luffa has behaved well during his imprisonment and has not breached any conditions imposed by a court or by prison authorities.
Consideration
Having taken into account all of the evidence before me I am satisfied that consideration of the need to protect the Australian community is a factor which weighs in favour of Mr Luffa’s visa being cancelled. Although I am satisfied that the risk of Mr Luffa’s reoffending is low, that risk remains and must be considered in light of the seriousness of his offences, the nature of his conduct and his apparent lack of acceptance that he continued the assault despite his victim’s efforts to resist him and her clear indication that she wished him to stop.
Primary consideration 2: whether Mr Luffa was a minor when he began living in Australia – paragraph 10(1)(b)
When Mr Luffa began living in Australia he was not a minor; he was 30 years old. As an adult he entered Australia with the “knowledge duties and responsibilities of an adult in the position of the visa holder …” [17]As Mr Luffa has failed to meet his duties and responsibilities as a resident of this country, this factor is to be considered as a factor suggesting that cancellation of Mr Luffa's visa is preferable.
Primary consideration 3: the length of time that Mr Luffa was ordinarily resident in Australia prior to engaging in criminal behaviour – paragraph 10(1)(c)
[17] Rosson v Minister for Immigration and Citizenship [2011] FCA 194 at para.21; (2011) 191 FCR 390, 396 at para.21.
Mr Luffa resided in Australia for approximately two years before he engaged in the criminal behaviour which led to his imprisonment. This is a very short period and is a reason to consider that his visa should be cancelled.
Primary consideration 4: relevant international obligations
In Direction 10 relevant international obligations include, but are not limited to “the non-refoulement obligations contained in the Convention and the Protocol relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).”
Mr Luffa gave evidence that his parents arranged for his travel to Australia in 2006 because of threats made against him following the murder of his uncle in 2001. In a statement made on 10 September 2011 he said that:
When I was young my uncle (father’s brother) was shot dead by his business rival in a conspiracy. There were 8 people involved in conspiracy and 2 contract killers. They all were rich, powerful and well connected. My uncle was 32 year old young man. Those 10 accuseds and their families were threatening us. They were making threatning phone calls to kill me, chasing our family members and brow beating my father to harm me because they were preventing my father to come to court as witness and give evidence against them my father brother’s trial. I was so scared to go to school alone. In supermarket, playground anywhere outside. I was in threat. Indian law is not very concerned about the safety of victim’s family. My father report to police but they could not do much. My mother spoke to her brother about threat to harm me. She requested her brother to take me with him at his home many miles away till I finish my school and organise a visa (student visa) to go Australia for my safety. I stayed there for more than 2 years. My father took 10,00,000 INR study loan from bank to support my education in Australia. My father was confident over me that I will make a better life and bright future because he find me hard worker and good person from childhood. If I go back those people will harm me [transcribed as written]. [18]
[18] Exhibit A1, vol.1 p.67.
In a written statement made 19 September 2011,[19] Mr Luffa’s father, Mr Harjit Singh Luffa, also expressed the opinion that Mr Luffa’s life would be at risk if he returns to India. Mr Luffa Snr confirmed the evidence of Mr Luffa that threats were made against Mr Luffa and for this reason he completed his schooling while living with a relative. I have taken into account other statements provided expressing opinions that there was a risk to Mr Luffa should he return to India.[20]
[19] Exhibit A1,vol.1 p.93.
[20] Exhibits A2 and A3.
When he gave evidence Mr Luffa said that some of those men convicted in relation to the murder had been released by an appeal court and that this increased his fears of retribution if he was living in India. His father has instituted court proceedings challenging their release.
I am satisfied that Mr Luffa had some part to play in the conviction of those responsible for his uncle’s murder, at least having identified some of the suspects in a police line-up. The evidence as to the full extent of his involvement and threats against him is unclear. I accept Mr Luffa’s evidence that his fear of action being taken against him has been heightened by the recent release of some of the accused. However I also take into account that Mr Luffa remained in India for more than five years after the murder of his uncle and that most of his immediate family have continued to reside there.
I am not satisfied of any facts which give rise to any obligations of Australia under the treaties mentioned or to any other international obligations. I will give further consideration to the matters raised by Mr Luffa later in these reasons.
G. OTHER CONSIDERATIONS
The other considerations, where relevant, must be taken into account. Generally they should be given less weight than that given to the primary considerations.[21] A non‑exclusive list of other considerations is set out in paragraph 11(3) of the Direction. Those considerations relevant to this application are considered in the following paragraphs.
[21] Rosson v Minister for Immigration and Citizenship [2011] FCA 194 at para.8.; (2011) 191 FCR 390, 393 at para.8.
Family ties, the nature and extent of relationships
Mr Luffa has formed a number of friendships in Australia, however none of these relationships involves any person being dependent on Mr Luffa and there is no evidence that the severing of these relationships would cause particular harm to Mr Luffa or to others. He has no family or business ties in this country.
Links to India
Mr Luffa has strong family ties in India. Both his parents live on the farm on which he grew up and his sister, aunts and cousins live in India. Although there may be some difficulties in Mr Luffa returning to live on the farm with his parents, to which I have already referred, I am satisfied that at least he will have the emotional support of family on his return.
Hardship likely to be experienced by Mr Luffa
On the basis of the evidence of Mr Luffa I am satisfied that the cancellation of his visa will cause Mr Luffa some hardship. He will lose the opportunity to continue to pursue his career as a chef and to earn an income in Australia. It is clear that it is his wish to do so and to live and work in Australia on a long term basis. Mr Luffa said that he will be unable to obtain comparable employment in India, that he will be left without adequate support and that he will be unable to make his student loan repayments as he has done prior to his imprisonment. However I am not satisfied that the consequences of Mr Luffa’s return to India will be as dire as he predicts. Mr Luffa has not given consideration to what his circumstances would be in India and as a consequence I have no reliable evidence on which to reach a conclusion as to the extent of the hardship which Mr Luffa will experience in India in this regard.
I have given consideration also to the evidence that Mr Luffa may be threatened by those involved in the murder of his uncle. However, taking into account that Mr Luffa continued to live in India until he was more than 19 years old and that the immediate family members continue to reside in India, I am not satisfied as to the extent of the risk to his physical safety. As Mr Luffa has lived away from his immediate family for many years, but lived in India until he was 19 years old, I am satisfied that he will be able to reintegrate into Indian society, whether or not he returns to live with his parents. By coming to Australia unaccompanied and establishing himself here he has demonstrated the ability to make the necessary adjustments to the changes involved in relocating to another country.
Mr Luffa’s level of education
Direction 11(3)(f)(ii) provides that “any efforts made by the person to improve their education and, therefore, increase their capacity to positively contribute to the Australian community through employment or other activities” be considered in the person’s favour.
I accept Mr Luffa’s evidence that he came to Australia at the conclusion of his secondary schooling. He has undertaken tertiary education here. In 2006 he completed a three month course in Tourism and Hospitality and in 2008 he obtained an Advanced Diploma in Hospitality. In addition he successfully completed a number of education courses in prison, including a Certificate in General Education for Adults and a Literacy Course. I am satisfied that Mr Luffa has worked hard to further his education and improve his chances of a successful career in the hospitality industry.
I am satisfied that the efforts of Mr Luffa in undertaking his training in hospitality have increased his capacity to positively contribute to the Australian community as a chef. I am satisfied that he was able to make such a contribution before his imprisonment and would be likely to continue to do so should he remain in Australia after his release.
H. ASSESSING THE VARIOUS CONSIDERATIONS
The Tribunal must assess the weight to be given to all the relevant considerations, both primary and other. It has been given a general discretion to decide whether Mr Luffa’s visa should be cancelled. This requires the Tribunal to make the preferable decision. The primary considerations are to be taken into account; the other considerations “where relevant, must be taken into account but, generally, they should be given less weight than that given to primary considerations ...” [22] This means that in appropriate situations the other considerations may out-weigh the primary considerations.[23]
[22] Direction [no. 41] subpara.11(2).
[23] Jason Schuster-McFadyn v Minister for Immigration and Citizenship and Administrative Appeals Tribunal (2011) 124 ALD 68; [2011] FCA 1303 at para.32.
In this case the consideration of the protection of the Australian community weighs in favour of the cancellation of Mr Luffa’s visa. The conduct was serious, involving sexually-based offences which were extremely distressing to his victim and which caused her some physical injury and considerable ongoing psychological harm. I have found that there is a risk that he may re‑offend, albeit a low risk. Any further offending of the nature of his past offences could place the health and well-being of members of the Australian community at risk.
Further, Mr Luffa offended within a short time of his entry into Australia and was an adult when he did so. He does not have substantial ties with Australia. He does have continuing family ties in India.
There are other considerations to which I have referred and which favour Mr Luffa being permitted to remain in Australia. However in my opinion they do not carry substantial weight. Having considered all of the factors I have reached the conclusion that the need to protect the Australian community outweighs the other factors in Mr Luffa’s favour. I conclude that the preferable decision is that Mr Luffa’s visa should be cancelled.
I. CONCLUSION
The reviewable decision, being the decision of the Minister for Immigration and Citizenship made 28 May 2012 to cancel the Class VB Subclass 886 Skilled - Sponsored visa issued to Lakhwinder Singh Luffa will be affirmed.

I certify that the preceding 63 paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.

………………………….[sgd] …
Dated 29 August 2012

Dates of hearing

Applicant

Solicitors for the Respondent

Advocate for the Respondent

9 and 15 August 2012

In person

Australian Government Solicitor

David Brown

[2012] AATA 572

Key Legal Topics

Areas of Law

Immigration & Refugee Law

Legal Concepts

Criminal Liability

Immigration Status

Deportation

Protection of the Australian Community

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/2393
Re	Lakhwinder Luffa
APPLICANT
And	Minister for Immigration and Citizenship
RESPONDENT

Tribunal	Deputy President J W Constance
Date	29 August 2012
Place	Melbourne