Nilesh Prasad and Minister for Immigration and Citizenship
[2012] AATA 533
•14 August 2012
[2012] AATA 533
| Division | GENERAL ADMINISTRATIVE DIVISION |
| File Number | 2012/2322 |
| Re | Nilesh Prasad |
| APPLICANT | |
| And | Minister for Immigration and Citizenship |
| RESPONDENT |
DECISION
| Tribunal | G. D. Friedman, Senior Member |
| Date | 14 August 2012 |
| Place | Melbourne |
The Tribunal affirms the decision under review.
.............................[sgd]...........................................
G. D. Friedman, Senior Member
MIGRATION – Fiji citizen - cancellation of Skilled Regional Sponsored visa - conviction for rape and other offences - character test - exercise of discretion
Migration Act 1958 ss 499(1), 499(2A), 501(2), 501(6), 501(7)
Direction [No. 41] – Visa Refusal and Cancellation under s 501
Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198
Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Rosson v Minister for Immigration and Citizenship [2011] FCA 194
REASONS FOR DECISION
G. D. Friedman, Senior Member
14 August 2012
Nilesh Prasad is a citizen of Fiji who arrived in Australia on 12 May 2001 on a Class BQ Subclass 139 Skilled Regional Sponsored visa and has been in Australia since then. On 30 May 2012 a delegate of the respondent found that Mr Prasad did not pass the character test due to his criminal record in Australia, and decided to exercise the discretion to cancel his visa. Mr Prasad seeks review of the decision.
LEGISLATIVE BACKGROUND
Under s 501(2) of the Migration Act 1958 (the Act) the Minister may cancel a visa granted to a person if the Minister reasonably suspects that the person does not pass the character test (s 501(2)(a)) and the person does not satisfy the Minister that the person passes the character test (s 501(2)(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 in s 501(6)(a)-(d) is met. Section 501(6)(a) of the Act provides:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
…
Section 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
Under s 499(1) of the Act the Minister may give 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 (Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583).
On 3 June 2009 the Minister, exercising powers under s 499(1) of the Act, issued Direction [no.41] – Visa Refusal and Cancellation under s 501 (Direction 41) which came into operation on 15 June 2009. The Direction provides guidance to decision-makers in making decisions to refuse or cancel a visa under s 501 of the Act, including the exercise of the discretion to decide whether a non-citizen should be permitted to enter or remain in Australia in circumstances where that person does not pass the character test.
Paragraph 9 of Direction 41 requires decision-makers to take into account the primary considerations in every case. The four primary considerations are set out in paragraph 10(1) of Direction 41:
(a)the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b) whether the person was a minor when they began living in Australia;
(c)the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d) relevant international obligations, including but not limited to:
(i)the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
(ii)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).
Paragraph 11 of Direction 41 provides that other considerations (not primary considerations) be taken into account. These include family ties, the person’s age and health, any links to the country to which the person would be removed, hardship to the person or the immediate family lawfully resident in Australia, level of education, and whether the person has been advised previously of the deportation or character provisions of the Act. Paragraph 11 notes that other considerations, where relevant, must be taken into account but, generally, should be given less weight than primary considerations.
ISSUES
The issues before the Tribunal are:
Does Mr Prasad pass the character test? If not:
Should the discretion to cancel the visa be exercised? This involves an assessment of the primary considerations and other considerations.
DOES MR PRASAD PASS THE CHARACTER TEST?
Mr Prasad was born in Fiji in 1979 and was aged 22 years when he arrived in Australia in 2001. He has the following criminal history:
| Court | Date | Offence | Court Result |
| District Court of South Australia | 18 November 2008 | Rape | Imprisonment 9 years (non parole period 4 years). |
| Choke to commit indictable offence | |||
| Christies Beach Magistrates Court | 1 December 2005 | Indecent assault | Imprisonment 3 months. Sentence suspended on entering bond $400 to be of good behaviour 3 years. |
| Christies Beach Magistrates Court | 21 July 2005 | Drive whilst disqualified | Imprisonment 2 months. Sentence suspended on entering bond $400 to be of good behaviour 3 years. |
| Adelaide Magistrates Court | 7 November 2002 | Drive whilst disqualified | Convicted. Fined $200. |
| Adelaide Magistrates Court | 1 October 2002 | Drive whilst suspended | Convicted. Fined $300. |
| Adelaide Magistrates Court | 3 September 2002 | Driving without due care | Convicted. Fined $400. Licence disqualified for 6 months. |
| Drive whilst disqualified | |||
| Fail to wear seatbelt properly adjusted and fastened | |||
| Christies Beach Magistrates Court | 25 July 2002 | Drive at night in hazardous weather without effective lights. | Convicted. Fined $150. |
| Driving an unregistered vehicle. |
Mr Prasad is currently serving his sentence in Port Lincoln Prison, South Australia. He becomes eligible for parole on 30 September 2012. He conceded, and the Tribunal finds, that he does not pass the character test.
THE FIRST PRIMARY CONSIDERATION: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM SERIOUS CRIMINAL OR OTHER HARMFUL CONDUCT
Paragraph 10.1 of Direction 41 provides that factors relevant to assessing the level of risk to the community include:
(a) the seriousness and nature of the conduct; and
(b) the risk that the conduct may be repeated.
Seriousness and nature of the conduct
Paragraph 10.1.1(1) of Direction 41 specifies that crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community, and that crimes against vulnerable persons involving violence are particularly abhorrent to the whole community.
Paragraphs 10.1.1(3) to (5) of Direction 41 require decision-makers in exercising the discretion to take into account a number of other factors. These include the sentence imposed for the offences including the number and nature of the offences, the period between offences and the time that has elapsed since the most recent offence, relevant information about the person, such as judicial comments or professional psychological reports, and any relevant factors the person provides as mitigating factors.
The Tribunal takes into account that the prior convictions include one for indecent assault committed on 17 March 2005 and several for driving offences. Mr Prasad received a term of imprisonment for the indecent assault conviction, wholly suspended, on 1 December in 2005 after a guilty plea. He had been drinking heavily. He entered the victim's bedroom while she was asleep and touched her inappropriately. The offences for which Mr Prasad is currently serving a term of 9 years’ imprisonment involved significant sexual violence in which Mr Prasad raped and choked the victim, punching and kicking her during the attack, causing extensive facial injuries as well as anxiety and fear. They were committed on 12 August 2005, shortly after his first court appearance on 1 August 2005 for the indecent assault charge.
On the question of the period between offences and the time since the most recent offences, the Tribunal takes into account that the first conviction occurred in 2002, one year after Mr Prasad’s arrival in Australia, and there were three other convictions in that year. There were two convictions in 2005 and the latest was in 2008.
The Tribunal concludes that the offending conduct is extremely serious.
Risk that the conduct may be repeated
Paragraph 10.1(2) of Direction 41 requires the Tribunal, when assessing the risk of harm to the community, to consider the risk that the conduct may be repeated. That factor is amplified by paragraph 10.1.2, which directs the Tribunal’s attention to the person’s previous general conduct and total criminal history, evidence of breach of judicial orders, and evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation.
In written statements Mr Prasad said that he completed Year 12 in Fiji and a Certificate III in automotive engineering at Fiji National Training Council. When he arrived in Australia he undertook a course at a TAFE college in South Australia. Initially he worked as a diesel mechanic but after two years he left the company because he found difficulty in travelling long distances to work every day. He said he was unable to find another job and decided to drive a taxi but lost his licence. Eventually he found employment but began to consume alcohol to excess because he was lonely and felt depressed. He said that his alcohol problems caused difficulties in his relationship with his parents. He said that his drinking has caused many problems and contributed to his current term of imprisonment.
Mr Prasad said that he has suffered from depression while in prison, and his experience of incarceration has taught him a valuable lesson. He acknowledged the pain and suffering caused to the victim and her family, and said he has lost everything, with only his parents remaining. While in prison he has undertaken courses in vocational education and applying mathematical skills. He also participated in the Sexual Behaviour Clinic (SBC) program from 9 August 2011 to 29 March 2012 at Yatala Labour Prison, plus sessions as part of an alcohol and other drugs program. He said that after his release he wants to look after his parents and to start a new life, and plans to accept an offer of full-time employment so he can help his parents pay off their mortgage. Mr Prasad said that he will not re-offend and if given an opportunity he intends to return to the community as a law-abiding citizen and take positive steps to improve his life. He stated that his parents are ageing and have serious health issues, and it is his responsibility as the only child to take care of them.
Under cross-examination Mr Prasad disagreed that his work commitments would limit his availability to undertake any rehabilitation or treatment program considered appropriate, and maintained that he would participate willingly in such programs.
In a report dated 20 March 2007 to Mr Prasad’s solicitors in relation to sentencing for the 2008 conviction, Dr C Raeside, forensic psychiatrist, stated that he was unable to find any evidence of a previous or current psychiatric disorder, or that drugs or alcohol were relevant factors in committing the offences. Dr Raeside noted that the injuries sustained by the victim appeared to have represented a violent attack and would appear to be inconsistent with simple consensual sexual activity. He said: The combination of aggression with non consensual sex is clearly a significant factor in considering one's risk of further offending in the future and that Mr Prasad’s …denial and/or minimisation of his involvement is also a negative prognostic factor.
In an assessment report dated 8 June 2012 following the SBC program the facilitators stated that there was considerable inconsistency in Mr Prasad’s retelling of events before and after the offences, his level of intoxication and the relationship with his family which created difficulties in compiling an accurate and consistent history of events. The report also noted that Mr Prasad’s version of the offending varied so frequently that it could not be considered reliable, and although he made some effort to address his offending behaviour and was attentive, he had little insight and did not fully accept responsibility for his offending. He attributed blame to his victim, and showed a mistrust of women and minimal understanding of, and experience in, developing personal and intimate relationships with them.
The report pointed to difficulties in addressing Mr Prasad’s offending because of the factual inconsistencies relating to his personal history and his offending. It assessed him as being at a high risk of sexual re-offending in the absence of treatment and suggested that if he resumes using alcohol or takes drugs, or associates with antisocial peers, his risk of re-offending would increase. Such treatment might include the SBC program in the community and participation in drug and alcohol intervention or referral to counselling or a therapist.
In a letter dated 12 July 2012 Mr S Prasad (Mr Prasad's father) stated that he and his wife are disabled and depend on various health agencies for support. He said that as far as he and his wife know, Mr Prasad is cultured and honest and is a faithful boy. He said that he could not understand how his son came to commit the offences, but felt it might be a result of peer pressure and keeping the company of undesirable people. He said that he and his wife will endeavour to reform Mr Prasad and re-establish him in the local Fijian Indian community through love, affection and care if he is given a further opportunity to remain in Australia. Under cross-examination Mr S Prasad agreed that he has been unable to prevent his son from re-offending in the past, but he was confident that the current period of incarceration in an adult prison has changed his son’s outlook and attitude.
A similar letter dated 12 July 2012 was received from Ms C Prasad (Mr Prasad's mother). A letter of support was also received from Dr U Prasad, who described Mr Prasad as honest and sincere and described Mr Prasad's imprisonment as …a situation that arose from a moment’s indiscretion. Dr Prasad said that he did not believe that Mr Prasad would offend again. Mr F Prasad, director of an engine service company, stated in a letter dated 20 October 2011 that he has offered Mr Prasad a full-time position as a leading hand mechanic when he is released on parole. Mr F Prasad described Mr Prasad as a competent, hard-working mechanic with excellent skills.
In Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81 Davies J held that even if the risk of recidivism is not high, it will strongly support deportation (or visa cancellation) when recidivism, if it does occur, may cause great harm. In Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198 the Full Court of the Federal Court held that a real risk of recidivism is one that is not far-fetched or fanciful, and can include a low or minimal risk.
In considering the likelihood of recidivism the Tribunal takes into account that the offences are extremely serious. Although Mr Prasad has completed short programs in prison relating to anger management, violence and drugs and alcohol, and has received statements of support from his mother, father and others in the Fijian Indian community, the Tribunal notes that despite the best efforts of his parents and local community, and despite holding full-time employment in the past, his offending behaviour has not changed. As his parents are in poor health they would probably not be in a position to offer him the support that he needs for rehabilitation or treatment in the community, and there are no other close family members who would be in a position to prevent him from committing further offences. The letters of support make no reference to the nature of the most recent offences or to previous court appearances.
The reports from Dr Raeside and the SBC facilitators lead to the conclusion that Mr Prasad has not demonstrated any meaningful insight into the impact of his offending on his victims or the community. This raises serious doubt as to the extent of rehabilitation already achieved by Mr Prasad and his prospects of further rehabilitation once released into the community.
In all the circumstances, including the fact that Mr Prasad committed the most recent offences three weeks after he was placed on a suspended sentence for driving while disqualified, and after his first court appearance on the indecent assault charge, the Tribunal finds that the risk of re-offending is moderate to high. This, together with the finding that the offences and the nature of his conduct are extremely serious, leads the Tribunal to conclude that the first primary consideration weighs strongly in favour of cancellation of the visa.
SECOND PRIMARY CONSIDERATION: WHETHER MR PRASAD WAS A MINOR WHEN HE BEGAN LIVING IN AUSTRALIA
Paragraph 10.2 of Direction 41 provides that favourable consideration should be given if the person was a minor when he or she first began living in Australia and spent formative years in Australia, less weight should be given if the person began living in Australia as a minor but was close to attaining adulthood at that time.
Mr Prasad was aged 22 years when he first began living in Australia, so was not a minor, and entered Australia …with the knowledge, duties and responsibilities of an adult (Rosson v Minister for Immigration and Citizenship [2011] FCA 194 at [21]). Therefore the second primary consideration weighs in favour of cancellation of the visa.
THIRD PRIMARY CONSIDERATION: THE LENGTH OF TIME THAT MR PRASAD WAS ORDINARILY RESIDENT IN AUSTRALIA PRIOR TO ENGAGING IN CRIMINAL ACTIVITY
Paragraph 10.3 of Direction 41 provides that consideration be given to the length of time that a person has been ordinarily resident in Australia, with more favourable consideration to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that reflects negatively on the person’s character.
Mr Prasad has lived permanently in Australia since 2001, and his first offences were committed less than one year after first residing in Australia, so the third primary consideration weighs in favour of cancellation of the visa.
FOURTH PRIMARY CONSIDERATION: RELEVANT INTERNATIONAL OBLIGATIONS
The Convention of the Rights of the Child provides that, in all actions involving children, the best interest of a child is a primary consideration. There is no evidence before the Tribunal to suggest that there are any children under the age of 18 years whose interests would be affected by the cancellation of Mr Prasad’s visa.
The Convention and the Protocol Relating to the Status of Refugees, the International Convention on Civil and Political Rights and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment must be considered if relevant. Mr Prasad told the Tribunal that he and his parents migrated to Australia because of persecution of Fijian Indians and violence towards them. He said that the situation is now worse in Fiji and that it is not safe for him to return there. He also said that he would be ostracised because he has served a prison sentence. Under cross-examination he agreed that in the SBC report he described a positive upbringing and happy memories from his formative years in Fiji, and that he told the authors that his family migrated to Australia to seek a better life with improved employment and financial opportunities. He also described to Dr Raeside …a good early home life in which he said he was treated well and that his family came to Australia to seek a better standard of living.
Under cross-examination Mr Prasad agreed that he has a limited knowledge of the current political and economic situation in Fiji, and said that his answers to some of the questions asked by SBC facilitators were not correct. No material was presented to the Tribunal about the current position regarding human rights and the justice system in Fiji to support Mr Prasad’s claims that he would be at risk of serious harm or persecution. He is familiar with the Fijian way of life, having lived there until he was aged 22 years. In all the circumstances the Tribunal finds that the fourth primary consideration does not weigh in Mr Prasad's favour.
OTHER (NOT PRIMARY) CONSIDERATIONS
Family ties, the nature and extent of any relationships
Mr Prasad told the Tribunal that his parents, plus several nieces and nephews, live in Australia.
Age
Mr Prasad is aged 33 years. This consideration has no practical effect on the application under review.
Health
Mr Prasad produced medical evidence of neck and back pain and mild vision problems, although in his personal details form dated 22 November 2011 he did not declare any medical problems. There is no evidence before the Tribunal of any significant medical condition suffered by Mr Prasad, so this consideration is not relevant to the Tribunal’s consideration.
Links to the country to which he would be removed
Mr Prasad told the Tribunal that he has no relatives in Fiji and that most of his friends have moved to other countries. He told Dr Raeside and the authors of the SBC report that in about 2000 his family had arranged for him to be engaged to be married to a woman in Fiji. He said that before his imprisonment he had kept in touch with his fiancée regularly by telephone, but was unable to visit her because of his employment and financial obligations in Australia. He said that he had planned to return to Fiji for the wedding the day after he was arrested for the most recent offences. Under cross-examination he said that he still hoped to marry his fiancée in Fiji but is unsure whether the family will agree to the marriage because of his prior convictions and term of imprisonment. The Tribunal concludes that he has some links to Fiji.
Hardship likely to be experienced by Mr Prasad or his immediate family members lawfully resident in Australia
Mr Prasad told the Tribunal that he would suffer hardship if he is forced to return to Fiji. He said that he would have no place to live and has no family members to support him, so re-establishing his life in that country after an absence of 11 years would be extremely difficult. He considers Australia to be his home. He stated that his parents would suffer extreme hardship because he is the only child and is expected to support them. He would be unable to do this if he was living in Fiji, and his parents are ill and would be unable to visit him.
Mr S Prasad said that he and his wife do not have any immediate family in Australia apart from Mr Prasad, and none in Fiji. He said that they are depressed and are concerned because Mr Prasad, a devoted Hindu who respects elders, is the only person who is able to look after them and to help pay the mortgage. He explained that in Indian culture the son of the family is the person who is required to take responsibility for the whole family, including performing the last rites after the death of the parents. Consequently he is most concerned as to what will happen to him and his wife if Mr Prasad is sent back to Fiji, where Mr Prasad's life might be in danger and where he would have no income and nowhere to live. Mr S Prasad added that he and his wife would suffer further depression if the visa was cancelled, with devastating implications for their future. Under cross-examination he agreed that his local community would assist them with household and other needs if requested. Ms Prasad supported these views.
In an undated letter Mr Davendra (Mr Prasad's former employer) stated that he found Mr Prasad to be a very trustworthy and hard worker. He said that in relation to the most recent criminal charges, he lent Mr Prasad $42,000 for legal costs relating to the proceedings, and there was an agreement that Mr Prasad would repay the loan by working at the workshop when he completed his custodial sentence. Mr Davendra said that he would suffer hardship if Mr Prasad's visa is cancelled because there is no likelihood that the debt would be repaid.
The Tribunal accepts that Mr Prasad would suffer some hardship if he is removed from Australia after living here for a considerable period. However he lived in Fiji until the age of 22 years and is familiar with the culture, language and the people. He has experience and qualifications as a mechanic, so his job prospects in Fiji should be favourable. The Tribunal acknowledges that there would be hardship experienced by his parents who are resident in Australia and have serious health issues, and the Tribunal acknowledges that in the Indian culture the oldest child has a role in providing for the welfare of parents. However his parents have had to cope with their situation without Mr Prasad’s assistance since his imprisonment, and have access to community assistance and social security benefits. If Mr Prasad is required to return to Fiji and gains employment he should be in a position to provide some financial support to them and to begin to repay the loan to Mr Davendra.
Level of education
The Tribunal is satisfied that Mr Prasad has formal qualifications from a TAFE College and he has been able to present his appeal with the assistance of a migration agent.
Whether Mr Prasad has been formally advised in the past by the Department about conduct that brought him within the deportation provisions of the Act or the character provisions of the Act
Mr Prasad has not been warned previously about the consequences of his conduct in the migration process.
Conclusion regarding other considerations
Because Mr Prasad and his parents in Australia would suffer some hardship if he is removed the Tribunal concludes that the other considerations weigh against cancellation of the visa.
SHOULD THE DISCRETION TO CANCEL THE VISA BE EXERCISED?
The Tribunal has concluded that the first primary consideration concerning protection of the Australian community weighs strongly in favour of cancellation, and the second and third primary considerations concerning age at arrival in Australia and length of time in Australia before engaging in criminal activity also weigh in favour of cancellation. The fourth primary consideration does not weigh in Mr Prasad’s favour.
This must be balanced by the conclusion that the other (not primary) considerations weigh against cancellation, and the Tribunal takes into account that, generally, other considerations should be given less weight than that given to primary considerations.
After considering all the circumstances of the primary considerations and the other considerations the Tribunal concludes, for the reasons given, that the factors weighing in favour of cancellation of the visa outweigh the factors against cancellation, so the discretion to cancel the visa should be exercised.
DECISION
The Tribunal affirms the decision under review.
| I certify that the preceding (50) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member |
........................[sgd]................................................
Associate
Dated 14 August 2012
| Date of hearing | 10 August 2012 |
| Advocate for the Applicant | Mr J P Thallury |
| Advocate for the Respondent | Mr N Swan |
| Solicitors for the Respondent | Sparke Helmore |
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