Mudiliar and Minister for Immigration and Citizenship

[2008] AATA 1095

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION

[2008] AATA 1095

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/4373

GENERAL ADMINISTRATIVE DIVISION        )

Re             James Lingappa MUDILIAR

Applicant

AndMinister for Immigration and Citizenship

Respondent

DECISION

TribunalProfessor GD Walker, Deputy President

Date9 December 2008

PlaceSydney

DecisionThe decision under review is affirmed.

………………[sgd]…………………...

Professor GD Walker
  Deputy President

CATCHWORDS

IMMIGRATION – visa cancellation – character test – applicant does not pass character test because of his substantial criminal record – wether tribunal should exercise discretion under section 501(2) of the Migration Act 1958 to cancel the applicant’s visa - discretion – direction 21- primary considerations – community protection and expectations and best interests of the children considered – decision under review is affirmed.

…

RELEVANT ACT/S:

Migration Act 1958 (Cth) (the Act): ss 499, 500, 501

CITATIONS

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

Green v Minister for Immigration and Citizenship [2008] FCA 125

Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56

Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81

Al-Kateb v Godwin (2004) 219 CLR 562

Re Zhou and Minister for Immigration and Citizenship [2007] AATA 1766

Robtelmes v Brenan (1906) 4 CLR 395

Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054

Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458

Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133

Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608

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OTHER AUTHORITIES

Direction No 21

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REASONS FOR DECISION

9 December 2008	Professor GD Walker, Deputy President
Basic facts

1.      The applicant James Lingappa Mudiliar was born in February 1971 in Fiji and is a citizen of that country.  He first arrived in Australia at the age of 25 on 17 February 1996 on a subclass 100 (spouse) visa and has lived here ever since.

2.      On that visa he has left Australia on four occasions, between 1998 and 2001 for periods of five days to three weeks.  He was granted a subclass 773 (border visa) on his last date of arrival on 2 October 2001 and received a subclass 155 (five-year resident return visa) on 22 October 2001.  He married his wife Josephine in Fiji in 1994.  He was divorced in 2003 and is not currently in a relationship.

3.      The applicant has a significant criminal history in Australia, consisting of a number of offences including:

(a)29.06.1998: Contravention of apprehended domestic violence order, sentenced to attend a course as directed;

(b)29.06.1998: Common assault, fined $500 and costs of $51;

(c)23.08.1999: Common assault, fined $100;

(d)11.02.2001: Contravention of apprehended domestic violence order, sentenced to 50 hours of community service and costs of $58; and

(e)21.07.2003: Aggravated sexual assault – victim under age of 16 years, sentenced to 8 years' imprisonment with a non-parole period of five years.  The victim was his stepdaughter, whom I shall call Julia (not her real name).

4. On 20 February 2008, a delegate of the minister sent the applicant a notice of intention to consider cancellation of the applicant’s visa under s 501(2) of the Migration Act 1958 (Cth) (the Act). At that time the applicant was an inmate at Kirkconnell Correctional Centre.

5.      The delegate proceeded to cancel the applicant’s visa on 25 August 2008 and the applicant applied to this tribunal on 18 September 2008 for review of the delegate’s decision to cancel his visa.

6.      The matter was originally set down for hearing at Parramatta on 25 and 26 November 2008, but the applicant applied for adjournment on the ground that he was not legally represented and as the prison welfare officer was on leave for two weeks, until 25 November, he was unable to arrange for any statements or other material to be faxed to the respondent in the manner required.  The matter was accordingly re-listed for 2 and 3 December 2008.

7.      At the hearing the applicant said he had prepared a second written statement which he had brought with him to the hearing.  He had been unable to fax it to the respondent because the welfare officer, although she returned on 25 November, immediately had to take sick leave.  Because of s 500(6J) of the Act, the tribunal was unable to have regard to that document.

8.      At the hearing, the applicant appeared in person, while Mr Greg Johnson of DLA Phillips Fox appeared for the respondent.  The documents before the tribunal comprised the documents produced pursuant to s 501G of the Act (“the G documents”), taken into evidence as Exhibit A1, together with the other documents tendered by the parties at the hearing.  The applicant gave oral evidence in person and a Hindi interpreter assisted him with certain words or passages.

Issues

9.      The issues in this case are:

(i)whether the applicant passes the character test in s 501(6)(a) of the Act, given his substantial criminal record as defined in s 501(7) of the Act; and if not,

(ii)whether the tribunal should exercise its discretion to set aside or affirm the decision made by the delegate of the minister to cancel the applicant’s visa, applying ministerial Direction No 21.

Relevant law and policy

10. Under s 501(2) of the Act, the Minister may cancel a visa if the holder does not satisfy the Minister that the person passes the character test (s 501(2)(a) and (b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant grounds in the current matter are paragraphs (a) and (c), as follows:

…

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); or

…

(c)       having regard to either or both of the following:

(i)        the person’s past and present criminal conduct;

(ii)       the person’s past and present general conduct;

the person is not of good character; …

…

11.     “Substantial criminal record “ is defined in s 501(7)

…

(7)For the purposes of the character test, a person has a substantial criminal record if:

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(c)the person has been sentenced to a term of imprisonment of 12 months or more;

…

12.     Under s 499(1) of the Act, the Minister may give written directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply.  That includes this tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.

13.     On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501.  The preamble to the direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act.  The direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

The applicant’s evidence

14.     In his statement of 17 November 2008, which he adopted at the hearing (Exhibit A2), the applicant said that he is a extremely remorseful for his offence and for the effects it has had on so many people, especially his victim, her mother and his children.  He also greatly regretted how that had deprived his children of his care, love and support, as he had been deprived of contact with them by their mother.  He felt sure his children would like to be in contact with him and that it would be to their advantage.

15.     A major goal after release would be to undertake all possible steps of growth through courses, programs (such as Alcoholics Anonymous) and counselling.  Before release he would be completing the Low-CORE program for sex offenders.

16.     He said he is a hard worker who finds it easy to gain employment and therefore would be able to pay his way in Australian society and, more importantly, support his children.  Of even greater importance was the positive influence he could bring to their lives by showing them that he could overcome his problems and be a responsible father and member of society.

17.     Previously the applicant had sent two written statements to the respondent (G pp88-111).  Those statements described in detail his life and upbringing in Fiji as the eldest of a church-going family of four.  His father was a farmhand who worked long hours and sometimes had the opportunity of working as a storeman.  He suffered a serious car accident, however, that disabled him from work.  His mother therefore had to work in a factory as a process worker, six days a week, but as her earnings were insufficient to support the family, the applicant had to start work at the age of nine, in a truck body building workshop.  He worked with timber and steel and learned welding, eventually becoming very competent in that trade.

18.     He met his wife Josephine in 1994, when she was visiting from Australia to see her parents.  They married in Fiji in 1994 and he applied for a visa to live in Australia with his wife and her stepdaughter Jennifer, born in January 1989.  They arrived in Australia in February 1996.

19.     Their daughter Jessica was born in February 1996.  They were at that time living in an apartment at Lakemba and the applicant was employed making electrical components for computers, televisions and other appliances.  He worked the nightshift for an extended period and eventually learned that his wife was having a relationship with a male neighbour.  Their marriage came under stress and he had to work large amounts of overtime to pay for his wife’s increasingly expensive tastes.

20.     Their son Jonathan was born in December 1996.  At that time they moved to Wagga Wagga where he had employment also as a truck body builder.

21.     By 1998 his wife decided she would prefer to move back to Lakemba and the couple began arguing frequently.  He began drinking more heavily, which led to more arguments, and eventually his wife applied for an apprehended violence order.

22.     They returned to live in Sydney and he found employment in the bus and truck building trade in Revesby.  His wife resumed her relationship with the former neighbour, however, and they separated, although he continued to support his wife and pay the rent on both apartments.  He also visited his children regularly.

23.     At Christmas 1999 his wife asked him to return to her and the children, which he did.  Two weeks later, his wife departed on a visit to Fiji, and he learned from his brother and father that she was staying with Jennifer's father, who was the local taxi driver.

24.     After she returned he endeavoured to put the matter behind him, but she continued to see other men, which would prompt him to drink, leading to further arguments.  After one argument the police were called and he was charged with, and fined for, domestic violence.  On the advice of police and workmates, he moved away from his wife and rented an apartment.

25.     In July 2003, after he had spent the day with his wife and children, his wife’s stepdaughter Jennifer made contact with him by telephone from the cinema.  He collected her from there and continued to drink, feeling worthless, depressed and angry with her mother.  He sexually assaulted Jennifer without thinking of her or of any of the consequences of his actions.  He was not thinking straight at all.  The next morning he panicked and took Jennifer to the train station so that she could return home.

26.     Shortly afterwards he received a telephone call from the police, whereupon he turned himself in at Bankstown police station, where he was interviewed and charged.  He pleaded guilty and was sentenced in Campbelltown District Court to a total of eight years' imprisonment with a non-parole period of five years.

27.     While in jail he made no attempt to contact his ex-wife or Jennifer and took full responsibility for his actions.

28.     Subsequently he was given a B classification in a medium security jail in Junee where he worked in the jail industries welding trailers and industrial garbage containers.

29.     He sought professional help immediately, beginning with a stress management program the psychologist recommended.  He also saw the drug and alcohol counsellor and began working on his alcohol problem.

30.     He enrolled in literacy and numeracy courses and worked very hard in obtaining an education.  Learning to read and write in English has made a big difference to his life and confidence and has enabled him to understand things much more easily than before.

31.     On 30 March 2005, he applied to undertake the sex offenders’ program.  After assessment, the psychologist, Mr David Bright, informed him that he could undertake the CORE program, a low intensity course.

32.     He was later moved to Long Bay and then to Kirkconnell as a minimum security inmate.  He contacted the psychologist and also applied to do the SMART drug and alcohol program with the counsellor, Mrs Jane Nelson.

33.     He feels that he can now cope with strong emotions and make positive, healthy choices and solve problems.  He is able to seek help if required and can weigh up the pros and cons of a situation.  He is still waiting to begin the CORE program but has completed a preparatory course conducted by a forensic psychologist.

34.     He has always worked while in jail and was classified C-2 and housed outside the fenced compound area.  He has worked five days a week in the welding workshop, where he was valued for his ability to get the work done.  He is a trusted inmate who is relied on to work with minimum supervision.

35.     He pointed out that his children live in Australia and his wife is an Australian citizen who does not intend to return to Fiji.  That would make it very difficult if not impossible for him to have access to his children so as to support them financially and morally.  His deportation would mean complete alienation from them.

36.     He intended to work if released into the community as a truck body builder and welder.  He has taken steps to correct his offending behaviour through special programs while in custody and intended to do more through maintenance and counselling.  He had no desire to return to his old ways but had a great desire to prove himself in the community as a responsible and reformed person.

37.     In oral evidence the applicant said that before coming to Australia from Fiji in February 1996, he had lived his entire life at Lautoka on Viti Levu with his parents, his three brothers and his sister.  They are all still living there, except his mother, who has passed away.  He had left school at the age of nine and had worked in construction and in building truck bodies.  He had a regular life and a network of friends and relatives.

38.     He is currently at Kirkconnell, his earliest release date being July 2009.  He began the Low-CORE sex offenders’ course last week [week commencing Monday, 24 November 2008] and if he completes the program, which lasts 14 or 15 weeks, he will be eligible for release on parole in about March 2009.

39.     Since the marriage ended in 2001, he has had no contact with his ex-wife and she has not visited him in custody.  He was precluded by an apprehended violence order (AVO) that expired in 2007 from having any contact with his children.  His ex-wife does not wish him to have any contact with the children as she feels bad about his crime.  But that was not the children’s fault, and they need a father to support them.

40.     He last spoke to his wife in July 2003 and the conversation was not a good one.  He has not tried to contact the children but just wants them to be happy.  Once they are grown up they can contact him if they wish to.

41.     Asked about the statement in his personal details form that the children’s mother had not allowed contact since his incarceration (G p145), he said he had begun proceedings in the Family Court in 2006 in an attempt to have the AVO lifted.  The Family Court had concluded that the children did not want to see him, but they were only seven or eight at the time and he did not think they were in a position to make up their own minds.  He thought their mother had perhaps told them to tell the court staff that they did not want to see him.

42.     At all events he decided that contact with the children would have to wait.  Next year the children will be 12 and 13, and if released he would return to the Family Court to make a new application for access.  He would keep trying until they were grown up, but would in any event continue to support them financially.  He had always done so when they were together, and also when he was separated from his ex-wife, until he had been taken into custody.

43.     Josephine is a good mother and would do what is best for the children.  She would dispute the allegations he had made about her in his statements, but they were true.  He was doing everything for the children while she was taking holidays in Fiji, which he had been forced to work very long hours to pay for.

44.     He had never perpetrated any violence against the children and was always good to them.  He had spent most of his time with them and they know him well, and love him.

45.     There had been long periods of separation before he was imprisoned, because of the incidents of domestic violence against his ex-wife.  He had been convicted on four charges and fines had been imposed, but he had continued to support the children and nothing had changed in their relationship.  They had wanted him to return.

46.     After the periods of separation she would return to him and he used to take her back for the sake of the children.

47.     Not having had any contact with the children since 2003, he did not know what school they were attending or which grade they were in, but knew that they were interested in sport.

48.     Alcohol had contributed to his offence, but the problem was long-standing and arose out of their deteriorating relationship and money problems.  He would never drink again and would be a total abstainer.  He was now able to control himself and consider the consequences of his actions on the children.  He would not want any harm to come to his daughter, nor would he want his son to commit the type of crime that he had committed.  He did not want contact with his ex-wife, but did wish that she could be happy.  She has a good life now.

49.     The courses he had undertaken on drugs and alcohol and other matters had helped him a great deal.  He is now able to think straight and sort out his problems.  He could easily obtain employment in one day.

50.     He had received notice of intention to consider cancellation in April 2008 when officers at Kirkconnell had given it to him.  The letter of cancellation arrived in late August and the reasons for decision on 16 September 2008.

51.     He acknowledged that the sentencing judge in October 2004 had said his offence was very serious.  He had not appealed because he thought he deserved the sentence.  Asked if there were any mitigating factors surrounding the offence, he said there were not, it had been his fault and he was sorry for what he had done.

52.     He wanted to stay in Australia only because of the children.  His own preference would be to return to Fiji, but for them.

53.     The applicant did not adduce any oral or written evidence from any supporting witnesses.

Application of the Law and Findings of Fact

54.     As was stated above, the first issue for me to decide is whether, pursuant to s 501(6)(a) and (7), the applicant passes the character test having regard to his substantial criminal record.

55.     The applicant was sentenced on 8 October 2004 to imprisonment for eight years with a non-parole period of five years for aggravated sexual assault involving a victim under the age of 16 years.  Consequently the applicant does not pass the character test because of his substantial criminal record within s 501(6)(a) and (7).

56. I must therefore consider whether to exercise my discretion under s 501(2) to decide whether or not to cancel the applicant’s visa. In exercising that discretion, the tribunal has regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:

…

Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

…

57.     Paragraph 2.3 sets out the primary considerations:

…

In making a decision whether to refuse or cancel a visa, there are three primary considerations:

(a)       the protection of the Australian community, and members of the community;

(b)       the expectations of the Australian community; and

(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.

…

Paragraph 2.4 explains:

…

The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.

…

58.     Direction No 21 repeatedly makes the point that offences, especially sex offences, against children or adolescents are to be viewed as particularly serious and indeed repugnant.  Paragraph 2.4 states that “The Government is especially mindful to take reasonable steps to protect the safety of the more vulnerable members of the community, such as children and young people who are especially at risk”.  Dealing with the seriousness and nature of the conduct, paragraph 2.6(d) states that “sexual assaults are particularly repugnant to the Australian community, especially sexual assaults involving children regardless of whether there was overt violence or the threat of violence”.  Again, in paragraph 2.6(m), crimes against children, especially sexual assaults and crimes taking advantage of children are to be treated as very serious.

59.     Paragraph 2.7 requires the tribunal to have due regard to the government’s view that the sentence imposed is an indication of the seriousness of the crime, including “the repugnance of the crime: crimes involving violence or fraud against defenceless persons (such as children …) are especially repugnant to the whole community”.

60.     In her sentencing remarks on 8 October 2004, Payne J noted that the victim, Julia, born in January 1989 and thus aged 14 at the time of the offence in July 2003, was the applicant’s stepdaughter.  They were not residing at the same address.  The offender had driven Julia to his boarding house where she went to sleep.  During the night she was woken by the offender shaking her shoulders.  “The offender rolled the complainant onto her back, the complainant has attempted to scream however, the offender placed his hand over the complainant’s mouth”.  He then proceeded to have sexual relations with her, to which she did not consent and made that known to the offender at the time (G p55).

61.     The applicant has denied placing his hand over the victim’s mouth, but Payne J’s specific finding to that effect is to be accepted by the tribunal.

62.     Her Honour noted that the injury and emotional harm done to the victim, her age, and the applicant’s position of authority over her at the time were aggravating circumstances (G pp59-60).  Her Honour continued:

…

Young people in a family situation require protection.  The Court of Criminal Appeal has repeatedly stated the requirement for the protection of young persons in the family environment.  This victim was entitled to grow up without the very serious effect that behaviour of this type has and has clearly had upon her (G p61).

…

63.     Paragraph 2.8 requires decision-makers, when exercising this discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.

64.     With regard to paragraph 2.5(b), likelihood that the conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.11, general deterrence, “aims to deter other people from committing the same or a similar offence”.

Protection of the Australian Community

65.     The first issue to be discussed under this heading is the seriousness and nature of the conduct.  It is necessary to apply Direction No 21, which was made pursuant to s 499 of the Act.  The direction, which is binding on this tribunal, states in paragraph 2.6(f) that crimes of violence against persons are to be treated as very serious.

66.     In light of Direction No 21 and of all the evidence, I conclude that the applicant’s criminal conduct is very serious, and indeed repugnant.

67.     The tribunal is also to take into account any relevant matters provided by the applicant as mitigating factors (para 2.8(a)).  They should be viewed in the context of the applicant’s entire record (Green v Minister for Immigration and Citizenship [2008] FCA 125 [25]-[26]).

68.     The applicant conceded that there were no mitigating factors in the offence and that it was his fault.  I note, however, that Payne J accepted that it was not part of a planned or organised criminal activity, that the applicant did not have any significant record of previous convictions and that the offence should be seen in the context of the breakdown of the marital relationship.  Her Honour regarded those as having some significance by way of mitigation.

69.     To an extent that those factors can be related to the applicant’s whole criminal record, as the applicant attributed his offending in part to alcohol and in part to his marital situation.

70.     The next issue for the tribunal to consider is the risk of recidivism.  As President Mathews J said, “Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending” (Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56 at [51]).

71.     Apart from his main conviction, the applicant has no other convictions for sexual assaults or sex offences of any kind.  On the other hand, in addition to being the subject of an AVO, he was convicted of assault on three separate occasions and of two AVO breaches between August 1998 and July 2001.  Those convictions resulted in two bonds, one fine and two community service orders.  The bonds and other non-custodial sentences did not deter him from re-offending, and in a more serious manner.

72.     His prison record is good and he was regarded as a willing and efficient worker.  He has useful work skills and has undertaken appropriate courses while in custody.  His remorse for his principal offence appears to be genuine, as do his expressed good intentions.

73.     In sentencing the applicant, Payne J took into account a psychiatric report by Dr Jonathan M Carne, which expressed that view that the prognosis for re-offending was the prognosis of the alcohol abuse problem.  “If Mr Mudiliar remains abstinent from alcohol, in my opinion, the likelihood of re-offending is small” (G p62).  Her Honour thought that if he continued to abuse alcohol, re-offending was more likely.

…

Hopefully given the passage of time and the courses he is undertaking in custody he will be able to abstain from alcohol on his release and if that is the position then his prospects for not re-offending will be unlikely.  Or his prospects of not re-offending will be good (G p62)

…

74.     Her Honour concluded that he has good prospects of rehabilitation, noting that he had always worked hard and been continuously employed.  He was using his time in custody productively and had expressed remorse for his offence.  He had pleaded guilty.

75.     A pre-sentence report dated 7 October 2004 did not attempt to estimate the recidivism risk but noted the role that alcohol abuse had played in his offending and also recorded that the applicant had been smoking cannabis from the age of 18, progressing to using it twice weekly.  The officer concluded that he had accepted the need to access treatment or counselling or both.

76.     During his incarceration a number of tests were conducted on the applicant in order to assess his recidivism risk.  A Probation and Parole Service Pre Release Report dated 10 April 2008 (G pp73-79) noted that on 17 March 2005 the static-99 test placed him in the low risk category in comparison with other offenders with similar convictions, while the Level of Service Inventory – Revised assessment undertaken in preparation for the Pre Release report rated him as being at medium risk of re-offending.

77.     In light of all the evidence and Payne J's comments, it would seem reasonable to conclude that the applicant’s risk of re-offending lies somewhere in the low to medium range.  A key factor will be his ability to refrain from alcohol abuse (and presumably also the use of illicit drugs).  The applicant is currently abstaining from all use of alcoholic beverages and intends to continue to do so, but his resolution has not been tested outside the controlled environment of prison.

78.     Whether he could sustain it in the face of life’s normal stresses and disappointments must remain somewhat conjectural.  I bear in mind the remarks of President Davies J in Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81, in which his Honour stated that “even if the risk of recidivism is not high, the risk will strongly support deportation when recidivism, if it does occur, may cause great harm” (at n133).

79.     In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons:  Direction No 21 paragraph 2.11.  The deterrent effect of a particular decision is impossible to prove in advance.  The concept can perhaps also be expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it.  That is a principle well known to parents, teachers, managers and most other members of the community.

80.     Its incorporation in Direction No 21 may be simply a reflection of the need for decision-makers to consider the long-term effects of their decisions, not merely the short-term results.  While visa cancellation is not intended as a punishment, para 2.11 of the direction plainly contemplates that the prospect of it will operate to deter similar conduct in much the same way as the threat of punishment does.

81.     As Callinan J observed in Al-Kateb v Godwin (2004) 219 CLR 562 at 659, “Deterrence may be an end in itself unrelated to a criminal sanction or a punishment. Deterrence can, for example, be an end of the law of tort”.

82.     While general deterrence cannot be a decisive, or indeed a substantial, factor in the exercise of the discretion, it must be given some weight, especially in a case such as this one where the principal offence is of such a heinous nature.

Expectations of the Australian Community

83.     With regard to the second primary consideration, the expectations of the Australian community, paragraph 2.12 of Direction No 21 states in part that:

…

Visa refusal … may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia.

…

84.     It has long been accepted on all sides in Australia that migration must be conducted in a legally regulated manner.  Historical and other reasons have been advanced for that position: Re Zhou and Minister for Immigration and Citizenship [2007] AATA 1766 at [90] to [99].

85.     In Al-Kateb, Hayne J observed that in one of its earliest decisions (Robtelmes v Brenan (1906) 4 CLR 395), the High Court had held that it is an attribute of sovereignty that every nation state is entitled to decide what aliens shall or shall not become members of its community (219 CLR at page 632).

86.     Callinan J added that entering aliens are taken to know and accept “as a term of admission” that restraint to the extent necessary to enable deportation to be imposed on them (at p658).

87.     At the same time, there is an expectation in the community that migration law will be administered fairly and humanely (Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34]). A further limiting factor is that one should attribute to the community knowledge of the whole of the evidence before the tribunal (Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458, at para 7(m)).

88.     In my view the community would expect that the visa of a person convicted of such a repugnant crime, who began offending two years after arrival and is at some risk of re-offending, should be cancelled.

The Best Interests of the Child

89.     The third primary consideration is the best interests of the child.  The tribunal is guided on this question by the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration”. I also note paragraph 2.16 of Direction No 21, which sets out considerations that the decision-maker must take into consideration when considering the best interests of a child including the duration of the relationship between the non-citizen and the child and the length of any separation and reasons for that separation (paragraph 2.16(b)).

90.     The applicant has two Australian citizen children, a girl born February 1996 and a boy born December 1996, who live with their mother.  Previously he had a parental relationship with his stepdaughter victim, Julia, but she is now over 18.

91.     In his oral evidence the applicant said his ex-wife is a good mother who will always do the best for the children.  He did not suggest that they were suffering any form of deprivation, other than not having contact with their father.  He said his ex-wife “has a good life now”, and that presumably applies at least in part to the children also.

92.     The applicant says he was always a good father who spent his free time with the children and always provided for them, even when he was separated from their mother.  At the same time, his repeated criminal assaults on their mother must have affected the children and could account for their expressed desire not to have any contact with him.

93.     The applicant accepts that the children told the Family Court that they did not want to see him, but believes that they were at the time (2006) too young to know their own minds and that they were only saying what their mother had told them to say.  That, however, is speculative.

94.     Beyond that, there is no evidence at all about the children’s circumstances other than that it is clear that their mother would oppose any further attempts by the applicant to obtain access to them.  Certainly, no statements have been received from the applicant’s ex-wife or children in support of the application.

95.     The applicant vows that he will keep attempting to obtain access to the children through the Family Court, but if it is not granted, he will continue to support them financially.  At present, however, he has had no contact with them since 2003.  He does not know what school they are attending or which grades they are in.

96.     In light of the peculiar circumstances of the case, I accept Mr Johnson's submission that there must be some question about whether the children’s interests would best be served by their father’s continued presence in Australia.  It is likely that he would earn better wages in Australia than in Fiji and would therefore be able to contribute more to their financial support, but there is no evidence that they are financially wanting in any way.  He said their mother has a good life now, which suggests that the same may be true of the children.

97.     In those circumstances it may well be that it is in the children’s best interests that the applicant continues to remain apart from his ex-wife and the children.  Once they reach the age of 18 they will be able to decide for themselves whether they wish to resume contact with him.

98.     I therefore conclude that in this case the children’s best interests do not significantly weigh in favour of setting aside the delegate’s decision.

Other considerations

99.     With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”.  These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct.

100.   The applicant has not previously been warned of the risk of visa cancellation.

101.   Apart from his children, the applicant has no family living in Australia.  All his family, including his father, three brothers and sister, still live in Fiji and there is no reason to suppose that they are on anything other than good terms.  Nor is there any evidence to suggest that the applicant’s ex-wife would be adversely affected by cancellation of his visa.  He is not in a relationship with an Australian citizen or permanent resident.

102.   The applicant has useful work skills in welding and related activities and possesses a good work ethic.  There is no evidence to suggest that he would not be able to find employment in Fiji, and he has a family network there that could assist him to become established.  In an interview for his pre-release report he indicated some concern that Julia’s family in Fiji might harm him by way of reprisal, but the evidence does not suggest that Fiji lacks a criminal justice system that could afford him adequate protection.  At the hearing the applicant did not suggest that he would suffer any hardship if repatriated and, indeed, said that but for the children his preference would be to return to Fiji to live.

103.   He has no business or similar connections with Australia.

104.   The applicant has made progress towards rehabilitation.  He has undertaken appropriate and useful courses while in custody, has maintained a good prison record and is well regarded as a worker.  He believes he could easily find employment in Australia, although there is no evidence of any specific employment offers before the tribunal.  He has abstained from alcohol, but his resolution in that regard has not yet been put to the test in the wider community.

105.   I find that the primary considerations of community protection and expectations outweigh the best interests of the children and the other considerations in this case.  The decision under review is affirmed.

I certify that the 105 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

Signed:   ………………[sgd]…………………………………..

Renee Wallace, Associate

Date/s of Hearing:  2 December 2008
Date of Decision:  9 December 2008
Solicitor for the Applicant:                  Self-represented
Solicitor for the Respondent:             Mr G Johnson, DLA Phillips Fox