NRWK and Minister for Immigration and Citizenship
[2012] AATA 661
•28 September 2012
[2012] AATA 661
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/2972
Re
NRWK
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 28 September 2012 Place Sydney The decision under review is affirmed.
.........................[SGD]...............................................
Senior Member A K Britton
CATCHWORDS
MIGRATION – visa cancelation – confidentiality – character test – Ministerial Direction – consideration of the applicant’s criminal history – consideration of the applicant’s ties to Australia – consideration of the applicant’s risk of reoffending
LEGISLATION
Crimes Act 1900(NSW) s 61I
Migration Act 1958 (Cth) ss 499, 501,
Administrative Appeals Tribunal Act 1975 (Cth) s 35CASES
Re Visa Cancellation Applicant and Minister for Immigration and Citizenship [2011] AATA 690
SECONDARY MATERIALS
Direction No. 55, Migration Act 1958, Direction under section 499, Visa refusal and cancellation under s 501
REASONS FOR DECISION
Senior Member A K Britton
September 2012
The applicant, a Sri Lankan citizen, has lived in Australia since 2007. He is currently serving a custodial sentence for, among other things “sexual intercourse without consent” (s 61I of the Crimes Act 1900 (NSW)). The victim was the applicant’s wife from whom he is now estranged. The applicant has a son who is nearly three years of age who lives with his mother, the applicant’s former wife.
The applicant was the holder of a Subclass 100 Spouse visa until cancelled by a delegate of the Minister for Immigration and Citizenship on character grounds. The applicant applies to the Administrative Appeals Tribunal for review of that decision.
There is no issue that the power to cancel the applicant’s visa is enlivened because he does not pass the “character test” on account of having a “substantial criminal record (ss 501(2), 501(7)(c) of the Migration Act 1958 (Cth) (the Act)). The sole issue to be decided is whether that power should be exercised in the circumstances of this case.
Confidentiality orders
I have decided that despite the presumption in favour of openness enshrined in s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) and the opposition of the Minister, that the power to restrict the publication of the name of the applicant should be exercised in this case. This is because the publication of his name would disclose the identity of the victim of a sexual assault, his former wife. In addition it is likely to disclose the identity of a minor, the applicant’s son. I have also decided to restrict the publication of the names of all lay witnesses.
Exercising the discretion to cancel the visa
The Minister has issued directions instructing the decision-maker on what matters must be taken into account when deciding whether to exercise the power to cancel a person’s visa. Issued under s 499 of the Act, the direction is entitled “Direction No. 55, Migration Act 1958, Direction under section 499, Visa refusal and cancellation under s 501” (Direction 55). The Direction, which came into effect on 1 September 2012, is binding on all decision-makers including the Tribunal (s 499(2A)).
The Government’s objectives are set out in the preamble to the Direction:
6.1 Objectives
(1) The objective of the Act is to regulate, in the national interest, the coming into and presence in, Australia of non-citizens.
(2) Under section 501 of the Act, a person may be refused a visa if the person does not satisfy the decision-maker that they pass the character test. A person may have their visa cancelled if the decision-maker reasonably suspects that the person does not pass the character test, and the person does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.
(3) The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act to refuse to grant a visa to, or to cancel the visa of, a person who does not satisfy the Minister that the person passes the character test. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
The Direction states that the Government is “committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens” (cl 6.2(1)) and sets out six principles “of critical importance in furthering that objective” (cl 6.2(1)) which must inform the exercise of the discretion (cl 7(1)):
6.3 Principles
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(4) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(6) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.
The Direction lists a number of “primary” and “other” considerations that must be taken into account by the decision-maker where relevant (cll 7(1)(a) and 8(1)). The Direction instructs that “primary” considerations — listed at cl 9 — should generally be given greater weight than the “other” considerations (cl 8(4)).
Three of the four primary considerations set out in cl 9(1) of the Direction are relevant in this matter:
a) Protection of the Australian community from criminal or other serious conduct;
b) The strength, duration and nature of the person’s ties to Australia;
c) The best interests of minor children in Australia.
PRIMARY CONSIDERATIONS
Primary consideration 1: Protection of the Australian Community
The Direction instructs that when considering the protection of the Australian community, decision-makers should have regard to the principle that (cl. 9.1(1)):
… the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
The Direction instructs that in the assessment of the “protection of the Australian community” consideration be given to (cl 9.1(2)):
a) The nature and seriousness of the person’s conduct to date; and
b) The risk to the Australian community should the person commit further offences or engage in other serious conduct.
The nature and seriousness of the person’s conduct to date
The Direction sets out at cl 9.1.1(1) a number of factors that must be taken into account in assessing the seriousness and nature of the criminal offending or other conduct to date:
a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b) The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
c) Where the person is in Australia, that a crime committed while the person was in immigration detention; during an escape from immigration detention; or after the person escaped from immigration detention, but before the person was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
d) The principle that any conduct that forms the basis for a finding that a person does not pass the character test under s501(6)(b) or (d), or is not of good character under s501(6)(c), is considered to be serious;
e) The sentence imposed by the courts for a crime or crimes;
f) The frequency of the person's offending and whether there is any trend of increasing seriousness;
g) The cumulative effect of repeated offending.
Seriousness of the offences
The subject offences
In October 2009 during an argument, the applicant pushed his pregnant wife by the head onto a bed and squeezed her throat using both hands. She found it difficult to breath and was fearful for the safety of her unborn child. He was convicted of the offence of common assault and placed on a two-year good behaviour bond.
Ten days after returning to live with the applicant after a two month separation, despite her repeated refusal, the applicant forced his wife to masturbate him. At his request she agreed to have sexual, but not anal, intercourse. They entered a bedroom; he pushed her on to a bed, and against her will had anal intercourse for about five minutes while she pleaded with him to stop. She was in a great deal of pain. Immediately after the incident the applicant announced to his wife he did not want to see her again. An altercation ensued. The applicant kicked her in the back a couple of times as she descended the stairs to leave the house.
The applicant was charged with the offences of “sexual intercourse without consent” and “incite person to commit act of indecency”. In September 2010 after entering a guilty plea the applicant was sentenced to three years, nine months imprisonment (two years, three months non-parole) for the former offence and three months for the latter. In addition, the good behaviour bond that had been granted for the offence of common assault was revoked and the applicant sentenced to three months imprisonment.
The sentencing judge, Neilson J, considered the “major aggravating factor” to be the fact the offences took place ten days after the applicant had entered a bond to be of good behaviour and at the time was already subject to an apprehended violence order. His Honour also considered the relatively long period the applicant sodomised his wife and the pain to which she was subjected to be aggravating factors. Neilson J described the offences as falling “below the mid-range seriousness but not by much”. He thought the applicant’s remorse as demonstrated by his decision to enter a guilty plea (after an initial denial) and his otherwise good character were relevant to that characterisation.
There is no argument that the subject offences, especially that of “sexual intercourse without consent”, were serious in nature.
(ii) The risk to the Australian community should the applicant commit further offences or engage in other serious conduct.
The Direction instructs (cl 9.1.2):
(1) In considering whether the person represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. In making this assessment, decision-makers must have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and
b) The likelihood of the person engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the person reoffending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Expert opinion
The applicant has been assessed by forensic psychiatrists, Drs Richard Furst and Watson-Munro. Each is of the opinion that the applicant poses a low risk of reoffending. Dr Furst carried out his assessment prior to the applicant being sentenced in September 2010; Dr Watson-Munro carried out his assessment more recently for the purpose of these proceedings.
In Dr Furst’s opinion the applicant suffered from an adjustment disorder with depressed mood when he committed the offences. In a report dated 2 September 2010, he recorded that the applicant and his wife had reconciled immediately prior to the most recent offences following a lengthy period of marital discord and a two-month separation. The applicant told Dr Furst that at the time he committed the subsequent and more serious offences, his mood was “terrible” and he was “very anxious” about the court proceedings in relation to the first offence (the common assault) and mounting financial problems. Dr Furst considered the improvement in the applicant’s mood in recent months since separating permanently from his wife (following the second offence) to be consistent with a diagnosis of an adjustment disorder. In his opinion such disorders usually resolve over time once the stressor is removed.
Dr Furst recommended that if the applicant were to be incarcerated he would benefit from a relapse prevention program. In his opinion individual psychological sessions that address his offending behaviour and address his stress in adjusting to the separation of his wife and son would “probably suffice”.
Dr Furst concluded that the applicant’s risk of sexual and non-sexual violent recidivism was low. In reaching that opinion he considered the applicant’s “strengths” to be relevant, including a supportive professional family in Sri Lanka, a solid employment history, the absence of a personality disorder or history of sexual offending and his remorse for his offending conduct.
Dr Furst also used Static-99 — an actuarial tool used to predict recidivism rates of known sex offenders — to assess the applicant’s risk of reoffending. He explained that Static-99 is intended to be a measure of a person’s long term recidivism risk and cannot be used to predict when (or under what circumstances) sex offenders are likely to recidivate. He explained that Static-99 uses a scale that looks at ten static factors such as the age of the offender and their offending history. The applicant’s score of two out of a possible 12 points placed him, according to Dr Furst, in the “low-moderate” risk category namely within a group of sex-offenders whose theoretical risk of sexual reoffending (within five years of the offence) was nine per cent, and risk of violent non-sexual offending, 17 per cent. He noted that the validity of Static-99 has been criticised because it was not possible to be certain whether an individual will belong to the small group of offenders who go on to reoffend.
Dr Watson-Munro concluded that the chance of the applicant re-offending with treatment was “extremely remote” and without treatment “remote”. In reaching his opinion he believed the following factors relevant:
The one-off nature of the sexual offence
The absence of any indication of sexual deviance in the past
The absence of any factor which indicates any serious criminogenic behaviour
The applicant’s remorse, which Dr Watson-Munro believed to be genuine
The applicant’s desire to seek treatment
The passage of time since the offence and the applicant’s maturity during the period
While Dr Watson-Munro agreed with Dr Furst’s diagnosis of an adjustment disorder he thought onset probably occurred around the time the applicant arrived in Australia and was compounded when his marriage began to fail. He thought the applicant was probably depressed and anxious at the moment.
Evidence of remorse and insight
The parties dispute the extent to which the applicant has developed insight into, and is genuinely remorseful for, his offending conduct. The Minister contends that the applicant’s evidence given in these proceedings illustrates that his expression of remorse does not extend to remorse for the effect of his conduct on the victim of his crimes, his former wife. Counsel for the applicant argues that care should be taken in assessing the applicant’s testimony given that in the main, the answers he gave were monosyllabic and barely audible. Counsel contends that during his time in custody the applicant has become “a shell of man” pointing to the observation made by his sister that he had become increasingly withdrawn and spoke little even to her.
As the Minister points out, when invited in cross-examination, after having said he was remorseful, to explain what he was sorry for, he answered for the effect on his family and not for the effect on his former wife; he was “sorry because of [his] mistakes”.
It is possible as suggested by his Counsel, that that answer did not accurately reflect the applicant’s true feelings. That contention is consistent with Dr Watson-Munro’s understanding, having had the opportunity to interview the applicant, and the applicant’s application to participate in a sex offender program, completed in November 2010, in which he listed his former wife as one of three people affected by his criminal conduct.
On the material before me it is not possible to say one way or the other, whether the applicant has indeed developed victim empathy and is remorseful for the effect of his conduct on his wife. I accept however that the applicant is deeply remorseful for the effect of his conduct on his family and himself. While apparent that each expert considered remorse a protective factor against further offending it is unknown whether they considered the absence of victim empathy (as opposed to general remorse) to be an a risk factor for recidivism.
Treatment
Prison authorities approved the applicant’s participation in a sex offenders’ treatment program in January 2012 but he is yet to commence treatment and it is not known whether he will be given that opportunity prior to his release. The applicant becomes eligible for parole in January 2013.
Dr Watson-Munro is of the opinion that the applicant’s decision to self-refer for treatment indicated some insight and a strong desire to address his issues. In a report dated 3 September 2012 Dr Watson-Munro wrote with “continuing support … focussed on relapse prevention, social skills training and one-to-one psychotherapy his prognosis is positive”. In oral evidence he said that if untreated the risk of the applicant reoffending would increase from “extremely remote” to “remote”.
The applicant’s former wife testified that the applicant was “very sweet” until 2008, when he changed and at times became “very angry”. She claimed that on occasion he had been violent toward her but did not elaborate. In her opinion he “definitely needs help for his anger”. He admitted in evidence that on occasion had been angry and violent with his former wife.
Findings and conclusions
The consideration — “Protection of the Australian community” — must be applied in light of the principles set out in cl 6.3 of the Direction. These require consideration to be given to the nature and seriousness of the visa holder’s conduct and the risk to the Australian community should the person go on to reoffend. The Direction emphasises the Government’s commitment “to protecting the Australian community from harm as a result of criminal activity … by non-citizens” and points out that “remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding … and will not cause or threaten harm to individuals or the Australian community”.
There is no argument that the offences for which the applicant has been convicted, in particular that of “sexual intercourse without consent” are serious in nature. Nonetheless taken individually, and in combination, in my opinion they do not fall within the class of crimes contemplated by the Direction as being “so serious, that any risk of similar conduct in the future is unacceptable” [emphasis added] ( cl 6.3 (3)).
It goes without saying that the task of assessing the likelihood that a person who has committed a violent or sexual offence will go on to reoffend, is a difficult one and is not amenable to empirical measurement.
I accept as argued for the Minister that I am not bound to accept the uncontradicted expert evidence about the applicant’s risk of recidivism. Nonetheless it is powerful evidence and cannot be ignored. While Dr Furst, using risk assessment tool Static-99, found that the applicant falls within the group of offenders who pose a “low-moderate” risk of recidivism, a fair reading of his report indicates that his opinion is that the applicant’s risk of recidivism (sexual and violent) is low.
While I accept the evidence given by the applicant and his former wife that neither would consider resuming the relationship this is not conclusive to the issue of risk. It is likely at some point in the future that the applicant will form another relationship. The possibility cannot be excluded that a future relationship might also be subjected to the strains and tensions that soured the marriage, that each expert thought contributed to his uncharacteristic behaviour.
While the evidence regarding the applicant’s remorse for the effect of his conduct on his former wife is equivocal, I accept that he is genuinely remorseful for his crimes. He is painfully aware of the shame and dishonour they brought on his family, in particular his parents and sister, and this is likely to have a strong deterrent effect.
While as the Minister points out it is troubling that the subsequent and more serious offences were committed while the applicant was on a good behaviour bond, I do not think it follows that he is a person who is generally disrespectful of the law and is unlikely to be deterred by the prospects of a custodial sentence. Notably he is regarded as a model prisoner and fully complied with all conditions of his bail in the intervening nine months between committing the subsequent offence and his eventual incarceration.
Nonetheless it is of concern that the applicant has not received the benefit of any treatment during his time in custody. While it could not be argued that because of this his risk is high, as conceded by Dr Watson-Munro, nonetheless it does increase that risk. Of further concern is that the applicant has not received any treatment for anger management. As the evidence given by his wife and broadly corroborated by the applicant reveals, the subject offence was not the first time he had been angry and violent toward his wife. While I accept as contended by Counsel for the applicant that care should be taken in approaching that evidence given its lack of particulars, it does indicate that the subject offences were not the first occasion the applicant had acted in a violent and angry manner in a domestic setting.
Of further concern is that the applicant has apparently not received treatment for depression and anxiety, from which Dr Watson-Munro thinks he probably suffers. This is of concern because both experts thought the applicant’s poor mental state at the time was a contributing factor to his offending conduct.
Had the applicant received some sort of treatment while in prison I would have had greater confidence in accepting Dr Watson-Munro’s opinion that his risk of reoffending is remote. In my opinion his risk of reoffending at the present time is low to moderate. It follows that this consideration weighs against the applicant.
PRIMARY CONSIDERTION 2: STRENGTH, DURATION AND NATURE OF THE APPLICANT’S TIES TO AUSTRALIA
The Direction states that regard must be had to (cl 9.2(1)):
a) How long the person has resided in Australia, including whether the person arrived as a young child, noting that:
i. Less weight should be given where the person began offending soon after arriving in Australia; and
ii. More weight should be given to time the person has spent contributing positively to the Australian community.
b) The strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The applicant arrived in Australia in 2007, aged 22. His first offence was committed about two and a half years after his arrival. Apart from his son, he has a sister and aunt who are supportive of him. He has been invited by, and intends to reside with, his aunt and her husband following release from custody, if permitted to stay in Australia. In addition he has some other relatives with whom he has limited contact.
The applicant and his sister are very close. She testified that she is engaged to an Australian citizen and they plan to marry in the near future. She is the holder of a student visa and told the tribunal that she intends to apply for a spouse visa in the near future.
The applicant is not assisted by this Consideration because: he was an adult when he arrived in Australia, he has lived in Australia for a relatively short period and an even shorter period before he commenced offending, and his only relatives who have a right to remain in Australia indefinitely — with whom he has maintained any relationship of note — are his aunt and son.
I accept that the applicant and his sister are close and in all likelihood she will soon be granted an indefinite right to remain in Australia. As she is yet to acquire that right it is not a relevant relationship in the assessment of this Consideration.
PRIMARY CONSIDERATION 3: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
The Direction requires that the decision-maker determine whether visa cancellation is or is not in the best interests of a relevant child or children under 18 years old (cl 9.3(1)-(2)).
Clause 9.3(4) lists a number of factors that must be considered where relevant. They are discussed below in no particular order.
Apart from brief contact during a court appearance the applicant has not seen his son since the day of the last offence in late December 2009. The child was then two months of age. The only period the child has lived with his father is in the ten days prior to the offence.
Shortly after entering prison the applicant told a prison psychologist that he wanted to remain part of the child’s life and was worried about his rights and role as parent (Exhibit R2, p 126). He has consulted Legal Aid at various times while in prison about the care and custody of the child.
The child’s mother testified that she is supportive of the applicant playing a role in the life of their son and for that reason would like him to stay in Australia so that he could support her in raising the child. She said that she would consent to supervised access visits. She explained that the reason she thought visits should be supervised, at least at first, was because she was unsure about the applicant’s mental state.
She also testified that during the first offence she could not breath and was concerned for her own health and that of her unborn child.
The child has never had a meaningful relationship with his father having spent at best two weeks in his care. Given this limited contact this Consideration does not weigh in the applicant’s favour to the extent it might. While I accept that the child’s mother genuinely supports the applicant playing an on-going role in the life of their son, it is not possible to say with any certainly whether those hopes will be realised. Nonetheless there is a much greater chance that a meaningful parental relationship will develop if the applicant remains in Australia. Given the child’s tender age I think it improbable than any meaningful relationship could be maintained and developed if the applicant were to return to Sri Lanka.
In my opinion the best interests of the child would be served if he were afforded the opportunity to develop a meaningful relationship with his father. I think it much more likely that this will occur if the applicant were to remain in Australia. This Consideration weighs in the applicant’s favour but not to the extent it might had he not been absent from the child’s life for a significant period.
OTHER CONSIDERATIONS
Clause 10 of the Direction provides a non-exhaustive list of “other considerations” that must be taken into account, if relevant.
Effect of visa cancellation on person’s immediate family in Australia
The Direction requires consideration of, where relevant, (cl 10(1)(a)):
Effect of cancellation of the person’s visa on the person’s immediate family in Australia, if those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely;
The only members of the applicant’s family likely to be affected if he were deported are his son, aunt, uncle and nephew. While the relationship with his aunt is significant as indicated by her offer of accommodation, in my opinion it is unlikely if he were to be deported that apart from some emotional hardship, she, or members of her family, would be adversely affected.
Impact on Australian business interests
It is not suggested that cancellation of the applicant’s visa would impact on Australian business interests.
Impact of non-cancellation on Australian community and victims of criminal behaviour
The Direction requires consideration of, where relevant, (cl 10(1)(c)):
Impact of a decision not to cancel a visa on members of the Australian community, including victims of the person’s criminal behaviour, and the family members of the victim or victims where that information is available and the person being considered for visa cancellation has been afforded procedural fairness
The applicant and his former wife each testified that there is no prospect of their relationship resuming. As noted the former wife supports the applicant’s efforts to remain in Australia.
Somewhat paradoxically in this case, cancellation of an offender’s visa would adversely affect their victim. This consideration weighs in the applicant’s favour.
Extent of impediments that the person may face
The Direction requires consideration of, where relevant, (cl 10(1)(d)):
The extent of any impediments that the person may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country) taking into account:
i. The person’s age and health;
ii. Whether there are substantial language or cultural barriers; and
iii. Any social, medical and/or economic support available to them in that country.
The applicant would not suffer any significant impediment in establishing himself and maintaining basic living standards if he were to return to Sri Lanka. He is young and in good health, would not face and language or cultural barriers and is likely to receive the support of his family. He told the tribunal if deported he will return to live with his parents and expects that he will be able to find employment.
Other factors
In my opinion another factor relevant to the cancellation of the applicant’s visa is his relationship with his sister. She intends to remain and undertake further studies in Australia upon her marriage. It is apparent that she and the applicant are close and their relationship is of great significance to each of them. Each will suffer some hurt and distress if they were to live apart. This factor in my opinion favours the applicant.
CONCLUSION
The exercise of the discretion to cancel the applicant’s visa requires consideration to be given, where relevant, to each of the “primary” and “other” considerations listed in the Direction and any other matter that may be relevant. In addition it requires a determination of whether the risk of further harm to the Australian community by the applicant is “unacceptable”. As the Tribunal (Justice Downes President and Senior Member McCabe) observed in Re Visa Cancellation Applicant and Minister for Immigration and Citizenship [2011] AATA 690 at [49]:
The balancing process contemplated by the Direction is not a simple mechanical exercise. One does not reach a conclusion by assigning values to particular considerations and tallying the differences. Beginning with each of the primary considerations – and without forgetting other considerations that are generally regarded as being of lesser weight – we must ask ourselves: what is the preferable decision in this case?
While the Tribunal was commenting on the predecessor to the current Direction, “Direction [no. 41] – Visa refusal and cancellation under s 501”, which differs in a number of respects to the current Direction, the task and its inherent difficulty remains the same.
The only considerations which weigh in the applicant’s favour to any great extent are the interests of his son and the adverse impact his deportation is likely to have on his former wife and sister. If he is deported his son will probably be deprived of the opportunity to develop any meaningful relationship with the applicant and his former wife will not be able to look to his support in shouldering the responsibilities of parenthood. While these are powerful factors which favour the applicant there are strong countervailing factors, primarily the protection of the Australian community and the short period of time the applicant has spent in Australia and his consequent limited ties to its community. Coupled with the likelihood that he will not experience any significant hardship if he were to return to Sri Lanka where he will probably enjoy the support of his family leads me to conclude that the balance of considerations favour the decision to cancel the applicant’s visa. For this reason I affirm the decision under review.
I certify that the preceding 68 (sixty -eight) paragraphs are a true copy of the reasons for the decision herein of Senior member A K Britton ......................[SGD]..................................................
Associate to Senior member Britton
Dated September 2012
Date(s) of hearing 6 September 2012 Counsel for the Applicant Nick Paynder Solicitors for the Applicant Gareth Lewis, Lewis Law Solicitors Solicitors for the Respondent Michelle Stone, DLA PIPER AUSTRALIA
Key Legal Topics
Areas of Law
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Immigration & Refugee Law
Legal Concepts
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Character Test
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Confidentiality
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Risk of Reoffending
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Ministerial Direction
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Protection of the Australian Community
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