Pareeth and Minister for Immigration and Citizenship
[2011] AATA 527
•29 July 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 527
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/1979
GENERAL ADMINISTRATIVE DIVISION ) Re AARIF PUTHENPURAYIL
PAREETH
Applicant
And
MINISTER FOR IMMIGRATION
AND CITIZENSHIP
Respondent
DECISION
Tribunal Deputy President S D Hotop Date29 July 2011
PlacePerth
Decision The Tribunal affirms the decision under review.
..........[sgd S D Hotop]........
Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – visa – cancellation of visa – applicant a citizen of India – applicant arrived in Australia in April 2010 when aged 24 years – applicant committed eight internet sex offences in July 2010 – applicant sentenced to eight concurrent terms of 12 months’ imprisonment – applicant does not pass character test – discretion to cancel visa – primary considerations and other relevant considerations – protection of Australian community favours cancellation of visa – protection of Australian community outweighs hardship to applicant – applicant’s visa should be cancelled – decision under review affirmed
Migration Act 1958 (Cth), s 501(2)
Direction [no 41] – Visa refusal and cancellation under s 501
REASONS FOR DECISION
29 July 2011 Deputy President S D Hotop Introduction
1.Aarif Puthenpurayil Pareeth (“the applicant”) has applied to the Tribunal for review of a decision of a delegate of the Minister for Immigration and Citizenship (“the respondent”), dated 3 May 2011, cancelling his Class VF Subclass 476 Skilled (Provisional) visa (“the visa”). The delegate’s decision was made under s 501(2) of the Migration Act 1958 (Cth) (“the Act”).
The Factual Background
2.The applicant was born in India in April 1986 and is a citizen of India.
3.The applicant first arrived in Australia on 15 April 2010 and he has remained in Australia since that date.
4.On 29 July 2010 the applicant was charged with the following offences under s 204B(2) of The Criminal Code (WA):
· two counts of using electronic communication with intent to procure a person he believed to be under the age of 16 years to engage in sexual activity;
· six counts of using electronic communication with intent to expose a person he believed to be under the age of 16 years to indecent matter.
On 26 August 2010 he pleaded guilty to, and was convicted of, those offences, and on 7 December 2010 he was sentenced in the District Court of Western Australia to 12 months’ imprisonment for each count, the sentences to be served concurrently, with effect from 6 December 2010.
5.On 3 May 2011 a delegate of the respondent cancelled the visa under s 501(2) of the Act.
The Relevant Legislation
6.Section 501(2) of the Act provides:
“ The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.”
The “character test” is defined in s 501(6) of the Act which specifies various alternative circumstances in which a person does not pass the “character test” within the meaning of that section. In the present case, the relevant circumstance is that specified in para (a) of s 501(6), namely, “the person has a substantial criminal record (as defined by subsection (7))”. Section 501(7) specifies five alternative circumstances in which, for the purposes of the “character test”, a person has a “substantial criminal record”. In the present case, the relevant circumstance is that specified in para (c) of s 501(7), namely, “the person has been sentenced to a term of imprisonment of 12 months or more”.
The Ministerial Direction
7. In reviewing the delegate’s decision in this matter pursuant to s 500 of the Act, the Tribunal is required, by s 499(2A) of the Act, to comply with a direction given by the respondent under s 499(1) of the Act. The relevant direction, as presently in force, namely, Direction [no 41] – Visa refusal and cancellation under s 501 (“Direction [41]”), was given by the respondent on 3 June 2009 and commenced on 15 June 2009. Part A of Direction [41]:
“ provides directions on the application of the character test ... set out in section 501(6) of the Act;”
and Part B:
“ provides directions on the primary and other considerations that are relevant to determining whether it is appropriate in the specific circumstances of the case to exercise the discretion to refuse to grant or cancel the visa. …”
Direction [41] will be relevantly referred to in more detail later in these reasons.
The Evidence
8.The evidence before the Tribunal comprised:
· the “G Documents” (G1–G14, pp 1–92) lodged by the respondent on 16 June 2011 (Exhibit R1);
· Exhibits A1 and A2 tendered by the applicant;
· Exhibit R2 tendered by the respondent; and
· the oral evidence of the applicant.
The Sentencing Remarks of Eaton DCJ on 7 December 2010
9.When sentencing the applicant for the abovementioned offences on 7 December 2010, Eaton DCJ made the following remarks:
“ You were charged in the Perth Magistrates Court on 29 July this year with eight matters, all of a sexual nature involving electronic communication with a person you believed to be under the age of 16 years; that was the original charge.
The offences were said to have been committed at East Perth in a period of about a week in July of this year. You appeared in that court on 29 July and you were remanded for legal advice. I’m told that you spent one day in custody before being released on bail.
On 26 August 2010 you entered a plea of guilty which was, as I’m told, a fast-track plea, and you were remanded to this court for sentence with directions that there be a pre-sentence report and a psychological report.
Now, the State eventually presented an indictment comprising eight counts reflecting the charges brought in the Magistrates Court. The facts have been outlined in some detail by Ms Ellson for the State today. I won’t go into the same detail. Suffice it to say that Ms Black has accepted the facts as outlined by Ms Ellson on your behalf.
At 4.44 pm on Monday, 19 July you, using the nickname … on an Internet chat site became involved in a private online conversation with a police operative who had assumed the persona of a 13-year-old girl.
At 5.08 pm you activated your web camera, exposed your erect penis and masturbated. At 5.33 on that same day, again using the webcam, you again exposed yourself, masturbated and ejaculated. You explained to her what was happening in simple terms. She made it very clear to you that she was 13 years old.
At 5.04 pm on 21 July, using the same method, you resumed your conversation with that entity, who unbeknown to you was a police officer. Again you exposed your erect penis, masturbated and engaged in sexual talk with the entity. You raised the topic of meeting her.
At 5.45 pm on that day you questioned her about her body shape and breasts. You then moved to her masturbation experience, suggesting that she close her bedroom door and touch herself. At 6.42 you requested that the child take a photograph of her vagina and breasts and send them to you via email.
At 5.31 on – that’s pm – on Tuesday, 27 July you asked her whether she’d taken the photographs requested, and she said that she hadn’t. You again asked that she do so and send them. Similar events had occurred on the day before, 26 July 2010.
I won’t go into, as I say, the detail. Suffice it to say that I’ve read the transcripts of your encounters with the entity over that period of time, and I note from Ms Black that there’s no exception taken to the facts as outlined by the State.
On 28 July members of the Sex Crime Division attended at your workplace at John Hughes Skipper Mitsubishi in Welshpool. You were working there as a car detailer. You were doing that because although you were well qualified I think from Anna University in Chennai, you were having difficulties transferring those qualifications to an acceptable situation in Australia,
…
I have before me a pre-sentence report dated 5 October and a specialist psychological report which doesn’t itself appear to be dated. There’s also some further material which has been provided to me from various persons. Ms Black on your behalf has proffered something in the way of an apology for the way in which the extra materials are provided, but no apology is necessary.
There is a note apparently sent by email from your fiancée in Kerala. There’s a letter providing a character reference from a roommate of yours, Mr [PKR]. There’s a letter in similar terms speaking of your ignorance of the situation in Australia written by [PPJ]. A letter from [MJM]. And finally a letter from [RR]. All of those persons speak well of you and speak about your offending being in the context of ignorance.
You were born and raised in Kerala in Southern India, one of two siblings. In 2008 you completed as I mentioned earlier an engineering degree at Anna University in Chennai. I understand that’s one of only five Indian universities recognised in Australia. You majored in telecommunications engineering.
You arrived in Western Australia in April of this year and you were, as I said, unable to get work in your field of training because of the need to translate your qualifications in India to an acceptable status in Australia. You were working as a car detailer while living at a friend’s house while that was happening.
It is the case that Ms Black on your behalf has today handed up a letter, a confirmation of enrolment for a professional year in engineering from Navitas Workforce Solutions.
That letter’s dated 1 November 2010 and confirms your enrolment for a professional year in engineering commencing on 9 November 2010 for a period of 44 weeks at a tertiary institution at a Mt Lawley campus in Mt Lawley.
I don’t know whether you’ve started that, but it may be that things will need to be put on hold or have been put on hold pending the outcome of these proceedings.
The author of the psychological report under the heading ‘Psychological formulation and needs analysis’ states, and I quote:
Whilst psychometric testing is normally undertaken as part of a psychological assessment, it could not be carried out with Mr Pareeth, as the instruments typically administered to offenders convicted of sexual offences are normed upon individuals within Western culture, Mr Pareeth’s Indian background precluding the administration of such tools. Regardless of formal psychometric testing, a number of observations, clinical judgements and impressions were gained from interviews.
The author continued later in that portion of the report as follows:
In regards to his offending, Mr Pareeth’s risk of re-offending was assessed using the Static-99, an internationally recognised risk assessment measure that combines 10 static (unchanging) risk factors that have been shown to be associated with increased risk of re-offence. The Static-99 was developed on offenders in the United Kingdom and Canada, thus a caution is necessary. The data draws upon Canadian and UK norms of recidivism. Nonetheless, the measure is a useful actuarial addition in assessing cases like Mr Pareeth’s.
And that’s the end of the quote.
Now, according to the psychological report your Static-99 score placed you in a medium-to-high-risk category, between the 63rd and 89th percentile relative to other adult male sex offenders. The author of the psychological report extrapolated therefore that you had a three-in-ten chance of re-offending within a five-year period. She said:
His risk, however, is elevated by his young age, the fact that he’s not lived with an intimate partner, and that the victim was an unrelated female stranger. Based on factors outlined above, it is possible that his current assessment may be an overestimation at this time.
That passage was emphasised or mentioned by Ms Black on your behalf.
The author of the psychological report, in her summary and recommendations, concluded, seemingly without qualification, that you were in the medium-to-high-risk category, elevated by your young age, the fact that you’d not lived with an intimate partner and that the victim was an unrelated female stranger. Although the author, in the body of the report, qualifies or mentions the need for caution in applying the Static-99 test, she applies, it seems to me, no such qualification in her summary.
…
Now, the reliability of the Static-99 as a tool for the prediction of future re-offending has been commented on by Steytler and Buss JJ in the matter of Woods v The Director of Public Prosecutions, by McKechnie J in the matter of the Director of Public Prosecutions v Free this year, and also by Adams J in the New South Wales Supreme Court in the matter of The State of New South Wales v Thomas.
In Western Australia in particular, the validity of the use of that tool in relation to the indigenous population of this State was queried. I query whether it has been formally validated with respect to indigenous persons from Kerala State and Southern India. My guess is that it hasn’t. The author of the psychological report doesn’t appear to turn her mind to that, and perhaps should have done.
Given the cultural and ethnic background, your cultural and ethnic background, the fact that you arrived in our society in April of 2010 and committed the offence in July of 2010, I find firstly that the use of the Static-99 instrument is unhelpful, and I don’t propose to rely particularly much on the unqualified conclusion based upon it in the psychological report.
Of further concern is the summary of the authors of the pre-sentence report, which suggested firstly, in my view, a quite unnecessary scepticism so far as you were concerned; and secondly, a repetition of the unqualified conclusion of the psychologist to the effect that;
Without intervention he is of medium/high risk of re-offending in a sexual manner.
Surprisingly, the authors of the pre-sentence report then volunteer their own view that your predicted risk of re-offending is compounded by your religious beliefs and culture which prohibit you engaging in sexual relationships prior to marriage. Quite how your religious beliefs and culture compound a supposed medium/high risk of re-offending in a sexual manner is not set out.
I take into account that Ms Black has actually referred to your background and your religious beliefs in the course of her plea in mitigation. The comment by the author of the pre-sentence report –
the writer gained the distinct impression that the entire story has not been revealed
- suggests, at the very least, that the author of the report regards you as having been untruthful, or less than frank, or evasive.
My conclusion is that, in all probability, you were acutely embarrassed by the revelation of your internet activities and what flows from those activities. Given your ethnic and cultural background, there may have been, and probably were, good reason (sic) for your presentation and responses when interviewed by the female author of the pre-sentence report other than a lack of candour on your part.
You are a first offender. You no doubt came to this country to further your career and to seek a better lifestyle, as Ms Black has said to me. In that context it is an absolute tragedy that within a few months of your arrival in this country you find yourself in very serious trouble with our criminal justice system, charged with what are undoubtedly serious offences.
The child persona, that is the police officer, made it very clear on several occasions that she was 13 years old, living at home with her parents and in year 9 at school. Your very first encounter with her was on 19 July this year, when you exposed your penis to her on webcam and masturbated to ejaculation. Later in that conversation you refer to the prospect of meeting her in the city. In the conversation of 21 July you said to her:
I know that illegal to do it with a small gal like you.
Now, some allowance may be made for the fact that you’d only recently arrived from a different society and that you may not have been fully aware of the extent of the criminal law in Western Australia. Your behaviour with the child persona would, however, suggest that you knew that what you were doing was wrong, and yet persisted.
You persisted also with the sexual aspect of your discussions with her, by encouraging her to indulge in masturbation and suggesting that when you did meet the two of you would engage in overtly sexual conduct together.
The question of meeting her either at home or in the city was traversed on more than one occasion. You established other means of remaining in contact with her, for example by SMS and email and I think, from memory, mobile phone number.
The conversations continued for a period of eight days, and perhaps, had it not been for the intervention of the Child Exploitation Squad, would have continued beyond that. But we won’t know about that. The fact of the matter is that the Child Exploitation Squad did intervene on that day, 28 July 2010.
You told the police when interviewed that you had no intention of meeting with her, notwithstanding the extended conversation with her in the course of your chats about the possibility that you would meet. Reference has been made to the case of Rose. In the case of Shane Charles Rose, I note that he was intercepted on 16 March 2009 when he was travelling to an address in Ellenbrook with the intention of attending a meeting with a child persona.
When I say intercepted, he was intercepted by police in the actual business of putting into effect his much discussed arrangements about meeting with her. You didn’t do that, and I accept for the purpose of your sentencing that you weren’t going to do that. Rather, that you talked about doing it at some length. …
…
I do not share the assessment of your risk of re-offending as outlined in the psychological report or the pre-sentence report for the reasons already enunciated. It is the case that a term of imprisonment to be immediately served is a sentence of last resort, and should only be imposed when all other dispositions are inadequate or inappropriate. In your case, the criminality involved is such that terms of imprisonment, in my view, must be imposed and those terms must be immediately served notwithstanding your personal circumstances.
The maximum penalty provided for the offences for which you are charged is a term of five years’ imprisonment. I regard your offending as being part of a continuing course of conduct, but there were intervals between the conversations engaged in which afforded you the opportunity of taking a step back and reconsidering what you were doing. You didn’t take those opportunities.
In that sense, there is ample scope to accumulate the penalties imposed for each offence which might otherwise have been served concurrently. Although some counts might be said to be marginally more serious than others, they all represent a level of offending of a sexual nature with a child who, so far as you were concerned, was only 13 years old.
I would have, for each count in the indictment, imposed a term of 18 months’ imprisonment, but I’ll reduce that term by reason of your fast-track plea and matters personal to you to 12 months’ imprisonment.
While it might be said, as mentioned, that there is scope for accumulation of the terms imposed for particular counts, having regard to your circumstances, I consider that accumulation is not necessary to achieve a penalty that will adequately reflect the level of criminality involved.
I propose therefore to make all counts concurrent with effect from yesterday. You will be eligible for parole. It follows that you’ll be considered for release on parole on 5 June next year.
…” (G9)
The Applicant’s Evidence
10.The applicant tendered in evidence (Exhibit A1) his witness statement, filed on 7 July 2011, as follows:
“ This is my own witness statement for a review of a decision of a delegate of the respondent to cancel my (the applicant) visa on the ground that I do not pass the character test within the meaning of s 501 of the Migration Act 1958.
I am 25 year old Indian Citizen …, first arrived in Australia on 15 April 2010 as a holder of Skilled Recognised Graduate (Temporary – 18 months) visa (Subclass 476). But I couldn’t find out any of my professional job because of my insufficient experience. I am an Electronics and Communication Engineer. I completed my Bachelor degree in Engineering in 2008 and I worked as Telecom engineer for one year in India. I applied for the visa because visa requirement is to apply within 2 years after completing the degree. Here in Australia all the employers need more than 2 years. So I couldn’t find any job as engineer. So I was working in ‘John Hughes’ in Welshpool WA as a car detailer until I was arrested on 2 July last week. I lost that job because the detective arrested me from my workplace. After that I was working with ‘Vista Visuals Australia’ in Oat Street as a factory hand until 6th of December 2010. Additionally I started to do a course on 9th November 2010 called ‘Professional Year Program’ with Navitas Work Force, that is recommended by Immigration Department to attain points to apply for Permanent Residency, and which includes 3 month internship training with an Electronics company which helps to get an entry to Australian Engineering industry. I payed 9000 AUD as first instalment of fee (Total – 13500 AUD). But I could attend only 6 classes maximum because of my conviction.
Between 19 July 2010 and 26 July 2010, I entered into private online conversations on an internet chat site (Yahoo Messenger) with a policewomen posing as a 13 year old girl. I used a webcam to expose genitals, masterbate via live video feed on several occasions, also asked the child persona for a photograph & discussed her body & sexual experience. Also asked to send her naked photos & requested a meeting to have sex.
I am using Yahoo Messenger since 2003, my chatlist contain all of my college friends and some chat friends. I never used it in inappropriate way other than what happened last time. It happened because of my carelessness. It was really out of character from me.
On 7 December I was convicted in the District Court of Western Australia of the following offences, to which I pleaded guilty
a)Two counts of using electronic media with intent to procure a person under the age of 16 years to engage in sexual activity and
b)Six counts of using electronics communication to expose a child under 16 years to indecent matter.
I received concurrent sentences of 12 months for each offences. My sentence was backdated to commence on 6 December 2010. My parole date was 5 June 2011. But they deny my parole because unmet the treatment needs as I have to do medium sex offender course. Now I am in Bunbury Regional prison to do the course which starts on 5th July.
I am aware that my offence is serious because it’s against a child under 16 year old. That was not intentional. It happened because of my carelessness. It was out of my character and I have no interest in children. It was very unfortunate for me, my family, fiance and my friends. I am deeply remorseful and guilty conscious for what I did. I already had a big gap in my career. I can assure that I won’t do anything wrong in my life. I already passed 7 months in prison, which I think the worst period of my life. I don’t want to be like this. I am sure that there is no risk of re-offending. I don’t have any previous convictions.
As I mentioned earlier I already passed my parole date which was on 5th June 2011. They denied my parole because I couldn’t do the course they recommended before my parole. Firstly I was in Hakea prison and from there they recommend the course and I moved to Acacia prison on 10 January 2011. The course in Acacia started on second week of February 2011. But they didn’t include me in that batch. That affected my parole and they book the course in Bunbury prison. So I consult with a Psychologist who is running the course in community upon the release on parole because I thought the community based course might be better as I might be released before the Bunbury course. But unfortunately the parole board denied my parole because unmet treatment program required and before that (3rd June 2011) the delegate minister has been cancelled my visa on character grounds. Now I am in Bunbury prison and my course starting 5th July 2011. I attach the details with this documents. They can’t give any psychological assessment until I finish the course. Please consider this that I am doing treatment program and there will be no risk of reoffending after that. I am sure that the psychological report will be in favour of me.
My fiance is a nurse and she had applied for Australian nursing registration, so she can work here. She will come soon to Australia. I am afraid that if I get deported I can’t live with her. More over it is very difficult for us to live together in India because we are from different religion (I am a Muslim and she is a Hindu). I will be too hard for us to live together in India. Additionally if I get deported I can’t go to any other country. So it will be so hard for us to live after marriage. (Relationship more than 5 years).
Furthermore I have almost 18 month gap in my career so it will be very hard to get job in my profession in India because I have to update my knowledge as the technological information changes every 6 months. I can’t study and work together if I go back because of full time (5 days educational system). If you won’t send me back I can change my visa to student visa and I can study more & get my professional job to support my family & others. Also I can live with my girlfriend. My father is a retired person and my mother is a home maker. My brother is studying. I am the person who support them all. Please give me a chance.
As I mentioned earlier, I was doing a course outside. I spend lots of money but I just could attend 6 classes. I lost 9000 AUD as I paid the fees and around 6000 AUD as lawyer fee. So I am in a big financial crisis. If I go back, I don’t know what to do. Please grant my visa so I can do something. I am not a threat to Australian community. I had enough. Prison is not a place for me. I know I won’t do anything wrong again. You can undergo any test on me. Please grant me visa.
I am representing myself because I didn’t get legal aid support and I am not in a position to hire a lawyer.
I got several friends here in Perth and they all supporting me. They are ready to support me both mentally & financially.
My brother is not home. So my parents can’t sent supporting letters. My friends sent their letters directly to AAT and to the Minister.
So I hear by humbly request you to kind on me and give me another chance. Hoping for a positive response. (sic)”
The applicant provided, by way of an attachment to his witness statement, a letter dated 28 June 2011 from Bunbury Regional Prison informing him that he had been “assessed as suitable for inclusion” in the “Medium Sex Offender Treatment Program” at the prison commencing on 5 July 2011.
11.In his oral evidence the applicant confirmed that the contents of his witness statement are true and correct. He also gave evidence to the following effect:
· he arrived in Australia on a temporary visa which was due to expire on 15 October 2011;
· he is due to complete his prison sentence on 6 December 2011;
· he grew up in India and completed his school and university education in India;
· all of his family members live in India, including his parents, a brother, a grandmother and numerous cousins;
· they are a close and successful family;
· if he were returned to India he would have employment and financial difficulties because he would need to do one year’s full-time study to update his engineering qualifications and he would not be able to work during that period;
· he would be able to live with his parents in India;
· before he committed the offences he had never done anything wrong because he is not that sort of person;
· the offences happened because of his carelessness and negligence;
· by “carelessness and negligence” he meant that he did not care about the age of the person involved – he did not care that she was 13 years old;
· he knew it was illegal to do it with a 13-year-old girl but he still did it;
· the person informed him that she was 13 years old on the first day, before he carried out the first act of masturbating;
· he is aware that the author of the psychological report and the author of the pre-sentence report said that he was a medium-to-high risk of re-offending but he does not know what they meant by that;
· he has “learnt a lot in the last seven months”, he has lost his career, and prison is “not suitable” for him;
· he was recently refused parole by the Prisoners Review Board;
· he did not have the opportunity to participate in the Medium Sex Offender Treatment Program until 5 July 2011;
· that Program comprises 43 sessions over the period from July to December 2011;
· he commenced that Program on 5 July 2011 and has attended three sessions to date;
· even if he did not participate in that Program, he “would not do anything wrong”;
· he does not accept that he is at a medium, or any, risk of re-offending;
· he considers himself to be rehabilitated and at no risk of re-offending;
· his fiancée has lived all her life in India and has never been to Australia;
· she has applied for a visa to enter Australia and she is still awaiting the decision;
· he met her in 2005 and their relationship commenced in 2006;
· they were planning to marry in October 2010;
· his parents are not happy about the relationship because of their different religions – he is Muslim, she is Hindu;
· her mother (her father is deceased) was previously agreeable to their relationship but “not now”;
· he told his fiancée all the details of his offences and she was “very shocked” at first but she called him later and “started to be all right”;
· they are still engaged to be married;
· he has several friends in Perth, one of whom was his “junior” student at university in India, and another of whom came with him to Australia from India and was living with him in Perth;
· he would have better employment prospects in Australia than in India because in India there are “too many students qualifying every year and it is too hard to get a job”.
Additional Material
12.The applicant also tendered in evidence a letter from Sruthi Sreedharan (with an address in Kerala, India) to the Tribunal, dated 2 May 2011, which states as follows:
“ My name is Sruthi Sreedharan. I am fiance of Aarif P Pareeth, who has applied for a review of his cancellation of visa because he have a conviction. I am in a relationship with him for more than 5 years and I know him for more than 7 years. In my opinion he is very nice person and always honest, and loving, expect the only mistake he has done. But I am sure that he won’t do anything wrong again.
We were planned to marry on 4th October 2010. But he could not come to India because his passport was seized because of his conviction. He went to Australia to live with me because we are from different religion. It is very hard to live in India if the couple is from different religion, especially Hindu and Muslim. He was supposed to apply for permanent residency too. I am already heart broken because he is in Jail. If he get deported, it will be very hard for us to live.
Moreover I am a nurse and I had applied for Australian nursing registration, so I can work there. If you allow him to stay we can live together. Also he can study to get his professional job. I can assure that he won’t do anything wrong again. He is so heartbroken and deeply remorseful for his mistake.
Soon he is going to another prison to do his course. Please consider his review and show some sympathy on him. Hoping for a good decision in his favour. (sic)” (Exhibit A2)
13.The G Documents include an Immigration report, Hakea Prison, dated 22 December 2010, regarding the applicant, which states:
“ …
4 Current Prison Performance
4.1Comment on current sentence prison charges for which there has been an outcome of guilty
List charge date and main event type ie urinalysis, misconduct, assault
No current sentence charges.
4.2Prisoner behaviour and attitude – General
Pareeth resides in Unit 6. Staff comment that Pareeth maintains a good standard of personal hygiene and cell cleanliness. Pareeth complies with all unit regulations and is co-operative and respectful to staff.
4.3 Prisoner behaviour and attitude – Work/Education
Pareeth has been employed since 13/12/2010 as an Administration Cleaner/Meals Worker, receiving Level 1 Gratuities. This is a trusted position and staff report that Pareeth works to a high standard and has a good attitude.
5 Program Participation
5.1 Comment on prisoner’s program participation
Include program name, status and any issues if applicable
Pareeth has been interviewed by A Treatment Assessor with the following intervention needs identified:
SEX OFFENDING:
Given that Pareeth does not have any prior history of sexual offending or sexually inappropriate behaviour, and in line with assessed level of risk and needs, Puthenpurayil Pareeth is currently recommended for inclusion in Sex Offending Medium Program.
COGNITIVE SKILLS:
Pareeth is currently assessed as not requiring Cognitive Skills Program, hence no program is currently recommended.
…” (G10)
14.The G Documents also include a report of Janice Paige, Registered Psychologist, to the Prisoners Review Board, dated 5 April 2011, which states as follows:
“ This report is provided for Mr Pareeth’s application for parole, which, I understand, is being presented for your consideration in the near future. This is not a full psychological report, but an assessment of Mr Pareeth’s suitability to join a community-based treatment program for internet sex offenders should parole be granted. …
The report has been compiled from information gathered in an assessment interview (1hr) with Mr Pareeth at Acacia Prison on 28 March 2011, and a follow-up interview at Acacia (1 hr) on 4 April 2011.
Before being transferred from Hakea Prison in January 2011, Mr Pareeth was told that he would be undertaking the Sex Offenders Course at Acacia, however, he was not offered a place in the course that started in February. Because Mr Pareeth is keen to address his offending behaviour, and to ensure that he does not re-offend in the future, he asked for an assessment for our community-based Internet Offending Course, which specifically addresses his type of problem behaviour.
Since our first meeting on 28 March, Mr Pareeth has been told that he has been allocated a place in the SOTP course at Bunbury Prison, scheduled to start sometime in the second quarter 2011. If he has not started the Bunbury course before he is eligible for parole, Mr Pareeth hopes that the Prisoners Review Board look favourably on his application so that he can access this important treatment in the Metro area. This will enable him to continue his work and studies, as well as to retain contact with his small support network in Australia.
1. CHARGES:
Mr Pareeth pleaded guilty to charges that relate to engaging in sexual conversations and indecent behaviour with an on-line 13 year old child persona. These conversations took place on 4-6 occasions over a 2 week period in 2010.
2. BACKGROUND TO THE OFFENDING
Mr Pareeth explained that he came to Australia in April 2010, after qualifying as an engineer, and completing a year’s work experience in India. At that time, he had been in a love relationship for 5yrs, and wanted to marry his girlfriend, but the match was disapproved of by their parents for reasons of religion. Mr Pareeth’s girlfriend remained in India to complete her professional training, but was then intending to apply to join Mr Pareeth in Australia The young couple believed that once they were married, their families would accept the relationship.
Mr Pareeth stated that, before coming to Australia, he had been raised and educated in a culture where sex was not spoken about, sex education was not provided, and sexual relations before marriage were not common. He does not remember being abused or having a particularly difficult childhood, and didn’t leave home until he went to university at 17. He began using the internet while he was at university, and accessed social networks and chat-rooms to communicate with his cousins and friends.
Once in Australia, Mr Pareeth applied for engineering positions but was not successful, and in November 2010, just before his imprisonment, he began a Professional Year to gain access to the Australian engineering profession. Before that, Mr Pareeth had to take on menial work as a car detailer to support himself. During this time, he became more and more depressed and isolated as his dreams of an exciting new career and a married life in Australia faded. Mr Pareeth explained he used the chat-room at this time to alleviate his loneliness and his frustration.
Mr Pareeth says that he was not in the habit of talking sexually on-line with anyone except his girlfriend, (although he did have an experience in India of an older female initiating sexual chat with him once). Also, he has not been aware of an attraction to children, and has not accessed child pornography, so he cannot explain why he acted as he did with the on-line child persona. His behaviour was completely out of character for him.
3. CRITERIA FOR ELIGIBILITY FOR THE TREATMENT PROGRAM.
I explained to Mr Pareeth that to be eligible for the group treatment program, he must be prepared to
a) admit that he has a problem
b)be willing to undergo individual and group therapy to minimize any future risk to children
c)agree to conditions that are designed to ensure the safety of children for the duration of his treatment
d)commit to completing the whole 20 week group program
e)and pay $80 for each two-hour session.
Mr Pareeth was very willing to commit to the treatment conditions because he wants to understand the factors that led him to behave in this way. He has been thinking about the harm that could have been caused to his victim if she had been a real child, and is grateful that this was not the case.
Mr Pareeth has the support of his family and friends in India, as well as that of the friend with whom he shared a house in Australia. He is extremely remorseful for the shame and worry that he has caused his family and he wants to repay their faith in him by doing all he can to ensure that he does not offend in any way in the future.
His girlfriend is also supportive, but her family have completely turned against him and are now arranging a marriage for her against her wishes. Mr Pareeth is completely devastated that his impulsive, on-line behaviour has caused her such misery, and has meant the end of any hopes they might have had of a continuing relationship and marriage in the future.
4. CONCLUSION
Mr Pareeth presented as an intelligent, but sexually naïve, young man, who is accepting responsibility for his offending. As such, his prospects of responding to treatment are excellent. Although our relatively brief discussion did not elicit any memories of childhood trauma or abuse, Mr Pareeth appeared open to exploring the possibility that his on-line behaviour was motivated by issues of which he is currently unaware.
This psychodynamic work is vital in gaining sufficient knowledge of his offending cycle to ensure that he can avoid the risk of offending in the future, and he will gain most by engaging in group therapy with others who are facing similar issues. Group therapy is acknowledged as the ‘best practice’ treatment for this problem. …
5. RECOMMENDATION
If parole could be granted, Mr Pareeth would qualify for our treatment program scheduled to commence in August 2011. The 20-week group will be closed to newcomers after week 3, so if he was released after this time, Mr Pareeth would be wait-listed for the next intake. He would be offered individual counselling to support him during this time.” (original emphasis) (G14, pp 87–89)
15.The respondent tendered in evidence (Exhibit R2) a Record of Decision of the Prisoners Review Board, dated 16 May 2011, regarding the applicant, which states as follows:
“ DECISION: Deny Release on Parole
Reasons:
1. Risk of re-offending
2. Risk to the safety of the community
· Serious and sexual nature of the current offence which involves exposing a child under 16 to indecent matter and acts and attempting to procure a person under 16 to attempt to engage in sexual activity.
· Unmet treatment needs (sexual offending)
i. Has been assessed as requiring a Medium Sex Offender Treatment program to address treatment needs”.
Analysis
Application of the “character test”
16. By reason of the fact that the applicant was, on 7 December 2010, sentenced to eight concurrent terms of imprisonment of 12 months each, the Tribunal finds that the applicant has a “substantial criminal record”, as defined in s 501(7) of the Act, and that, by reason of s 501(6)(a) of the Act, he does not pass the “character test”.
17. It follows from that finding that the discretionary power to cancel the visa, pursuant to s 501(2) of the Act, is enlivened in this case.
Should the discretionary power to cancel the visa be exercised in this case?
18. Part B of Direction [41] comprises paragraphs 8 – 11. Paragraph 9 states:
“(1) … decision-makers must take into account the primary considerations in every case. The other considerations (defined in paragraph 11) should be taken into account where relevant.
Note:The primary considerations are set out in paragraph 10 of this Direction. The other considerations are set out in paragraph 11.
(2)Decision-makers should only take into account directly relevant considerations.
…”
The Primary Considerations
19. Paragraph 10 sets out the primary considerations as follows:
“ 10.The primary considerations
(1)In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:
(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).”
Protection of the Australian community
20. Paragraph 10.1 states:
“ 10.1 Protection of the Australian community
(1)Due consideration is to be given to the Government’s objectives set out in Part 1, paragraph 5 of this Direction.
(2)The factors relevant to assessing the level of risk of harm to the community of the person’s entry or continued stay include:
(a) the seriousness and nature of the relevant conduct; and
(b) the risk that the conduct may be repeated.”
21. The objectives set out in Part 1, para 5 are as follows:
“ 5.1 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)In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.
(3)The Government is especially mindful to protect the safety of the community’s more vulnerable members, including minors, the elderly and the disabled.”
The seriousness and nature of the relevant conduct
22. Paragraph 10.1.1(1) states:
“ 10.1.1 The seriousness and nature of the conduct
(1)Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community. Those crimes involving violence, particularly against vulnerable persons (such as minors, the elderly and the disabled), are especially abhorrent to the whole community.”
Paragraph 10.1.1(2) lists (in paras (a) – (m)) “examples of offences and conduct that are considered serious”, including (relevantly):
“(b) all offences perpetrated against a child (particularly sexually-based offences);
(c)rape and any other sexually-based offences;”.
Paragraphs 10.1.1(3) and 10.1.1(4) relevantly state:
“(3) The sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community. Due regard must be given to the extent of the person’s criminal record, including
(i)the number and nature of offences;
(ii)the period between offences; and
(iii)the time elapsed since the most recent offence.
(4) The following factors are also to be considered:
(a)any relevant information, including, but not limited to, evidence from independent and authoritative sources in respect of the person such as judicial comments in an individual’s case, professional psychological reports, pre-sentence reports for the courts, parole assessments, victim impact statements and similar sources of authoritative information or assessment;
(b)any relevant factors the person provides as mitigating factors;
…”
23.The applicant’s criminal record consists solely of the eight offences (set out in paragraph 4 above) of which he was convicted on 26 August 2010. Those offences each involved sexual activity and they were, as summarised in the remarks of the sentencing judge, committed over the period 19–27 July 2010 and were perpetrated in relation to a “child persona” who the applicant believed, at all material times, to be a 13-year-old girl. The sentencing judge described those offences as “undoubtedly serious offences”, and the seriousness with which he regarded each offence was reflected in the sentence of 12 months’ imprisonment, to be served immediately, which he imposed in respect of each offence (although he considered that the “level of criminality involved” would be “adequately reflect(ed)” by the imposition of eight concurrent sentences of 12 months’ imprisonment).
24.The Tribunal notes the applicant’s evidence that the commission of the relevant offences involved “carelessness” or “negligence” on his part. The Tribunal accepts that the applicant may not have deliberately set out to engage in the relevant on-line and “webcam” conduct with a person under the age of 16 years but the fact remains that, when he was informed (during their first on-line conversation) that the person with whom he was conversing on-line was a 13-year-old girl, he voluntarily and intentionally continued to engage in that conduct with that person over a period of nine consecutive days until the police intervened, even though, by his own admission, he knew that engaging in such conduct with a young girl was illegal.
25.In the Tribunal’s opinion, having regard to:
· the nature of the offences committed by the applicant, involving the use of electronic communication with intent to procure a person who he believed to be a 13-year-old girl to engage in sexual activity, and with intent to expose such person to indecent matter; and
· the fact that the applicant committed eight such offences over a period of nine consecutive days, thereby engaging in what the sentencing judge described as a “continuing course” of criminal conduct, which ended when the police intervened;
the applicant’s conduct in committing those offences is a matter of great concern to the welfare and safety of the Australian community, and that conduct is repugnant and clearly unacceptable to the Australian community and it must be regarded as involving serious criminality for the purposes of para 10.1.1 of Direction [41].
The risk that the conduct may be repeated
26. Paragraph 10.1.2 of Direction [41] states:
“ 10.1.2 The risk that the conduct may be repeated
(1)The person’s previous general conduct and total criminal history are to be considered highly relevant to assessing any risk of re-offending.
(2)The following factors are to be considered as particularly relevant to this assessment:
(a)a recent history of convictions, which should be considered as indicating an increased risk of re-offending;
(b)evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation. Greater weight should generally be given to evidence from independent and authoritative sources, such as judicial comments, professional psychological reports, pre-sentence reports for the courts, parole assessments, and similar sources of authoritative information or assessment; and
(c)evidence that the person has breached judicial orders, including parole, bail, bonds, suspended sentences and any other relevant undertakings or conditions imposed by the courts.”
27.The risk of the applicant’s re-offending was a matter discussed at some length by Eaton DCJ in his abovementioned sentencing remarks (see paragraph 9 above). His Honour referred to:
· a psychological report (undated) which concluded that, having regard to the applicant’s “Static-99” score, his risk of re-offending was in the “medium-to-high” category; and
· a pre-sentence report, dated 5 October 2010, which concluded that “without intervention” the applicant “is of medium/high risk of re-offending in a sexual manner”.
Although Eaton DCJ stated that he did “not share the assessment of [the applicant’s] risk of re-offending as outlined in the psychological report or the pre-sentence report”, he did not express a clear opinion regarding his assessment of that risk. The Tribunal, however, infers from his Honour’s remarks that his assessment was that the applicant’s risk of re-offending was somewhat lower than that stated in the psychological report and the pre-sentence report. He nevertheless decided to sentence the applicant to an immediate term of imprisonment, but he made him eligible for parole.
28.The Tribunal notes that, on 16 May 2011, the Prisoners Review Board decided to deny the applicant release on parole, stating as its reasons:
“ 1. Risk of re-offending
2. Risk to the safety of the community
· Serious and sexual nature of the current offence …
· Unmet treatment needs (sexual offending)
i.Has been assessed as requiring a Medium Sex Offender Treatment program to address treatment needs”.
29.As regards the abovementioned Medium Sex Offender Treatment Program, the Tribunal notes the applicant’s evidence that he commenced that program in Bunbury Regional Prison on 5 July 2011 and that he has, to date, attended three sessions (out of a total of 43 sessions) and will not complete that program until December 2011.
30.Although there is some independent and authoritative evidence before the Tribunal to the effect that the applicant “is accepting responsibility for his offending” and that his “prospects of responding to treatment are excellent” – see the report of Janice Paige, Registered Psychologist, dated 5 April 2011, to the Prisoners Review Board, set out in paragraph 14 above – there is insufficient evidence before the Tribunal to enable it to be satisfied that, at the present time, the applicant has made significant progress towards his rehabilitation.
31.The Tribunal notes the applicant’s evidence that he has “learnt a lot in the last seven months” and that there is no risk that he will re-offend. The Tribunal accepts that the applicant’s arrest, conviction and imprisonment have had, and will continue to have, some deterrent effect on him and are likely significantly to reduce the risk of his re-offending. However, given the abovementioned independent and authoritative evidence before the Tribunal which indicates that the applicant continues to be at risk of re-offending, and given the absence of independent and authoritative evidence to the contrary, the Tribunal is not prepared to accept that there is no risk of the applicant’s re-offending.
32.There is, however, insufficient evidence before the Tribunal to enable it to make a valid assessment or express an informed opinion regarding the degree of the risk of the applicant’s re-offending. Although the Tribunal shares Eaton DCJ’s doubts that the applicant presents a medium/high risk of re-offending, it can go no further than to express the view that the applicant’s risk of re-offending is somewhat lower than medium/high. The Tribunal, however, is unable, having regard to the evidence before it, to be satisfied that there is no risk of the applicant’s re-offending or even that there is a minimal or low risk of his re-offending.
33.The Tribunal accepts, therefore, that, at the present time, there remains a real risk that the applicant may re-offend in a similar manner.
Conclusion regarding protection of the Australian community
34.Having regard to the seriousness and nature of the applicant’s conduct in committing the relevant offences (as discussed in paragraphs 23–25 above), and to the Tribunal’s acceptance that there presently remains a real risk that the applicant may re-offend in a similar manner, the Tribunal concludes that this “primary consideration” militates in favour of cancellation of the visa.
Whether the person was a minor when they began living in Australia
35. Paragraph 10.2 of Direction [41] states:
“ 10.2 Whether the person was a minor when they began living in Australia
(1)If the person was a minor when they began living in Australia and spent their formative years in Australia, thereby increasing the likelihood of establishment of greater ties and linkages to the Australian community, this is to be given favourable consideration.
(2)Less weight should be given if the person began living in Australia as a minor but was close to attaining adulthood at that time.
Note: For example, if the person was between 17 and 18 years old on arrival.”
36. By paragraph 6(1) of Direction [41] the word “minor”, for the purposes of the Direction, “has the same meaning as in section 5(1) of the Act”, namely, “a person who is less than 18 years old”. The applicant was 24 years old when he first arrived in Australia on 15 April 2010. The applicant was, therefore, not a “minor”, within the meaning of para 10.2 of Direction [41], when he began living in Australia.
37. Accordingly, this “primary consideration” is not applicable in the applicant’s case.
The length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity
38. Paragraph 10.3(1) of Direction [41] states:
“ 10.3 The length of time that a person has been ordinarily resident
(1)Reflecting the fact that the longer a period of residence in Australia the greater the likelihood of significant ties to the Australian community, more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character.
Note: For example, a period of more than 10 years of residence in Australia prior to a person engaging in criminal activity or activity which bears negatively on the person’s character would be an important consideration.”
39. It is common ground that the applicant has been ordinarily resident in Australia from 15 April 2010 and that the date on which he first engaged in criminal activity in Australia was 19 July 2010.
40. Having regard to the fact that the applicant was ordinarily resident in Australia for only 3 months before he committed the relevant offences, this “primary consideration” does not weigh in the applicant’s favour.
Relevant international obligations
41. Paragraph 10(1)(d) of Direction [41] refers to:
“ 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).”
42.It is common ground that there are no international obligations which require consideration in the applicant’s case. Accordingly, this “primary consideration” is not applicable in this case.
Other Considerations
43. Paragraph 11 of Direction [41] states:
“11. Other considerations
Note: These are not primary considerations.
(1)In reaching a decision on whether to refuse or cancel a visa, other considerations, although not primary, may be relevant and, if so, must be considered.
(2)It is appropriate that these considerations, where relevant, must be taken into account but, generally, they should be given less weight than that given to primary considerations.
…”
Subparagraph (3) of para 11 sets out (in paras (a)–(g)) an inclusive list of “other considerations”. The Tribunal will specify, and comment upon, each of those “other considerations” below.
(a) Family ties, the nature and extent of any relationships
44.According to the applicant’s own evidence:
· he is the only member of his family who resides in Australia – all of the other members of his family reside in India;
· he is not in a marital relationship;
· he is engaged to marry Sruthi Sreedharan but she presently resides in India and is not an Australian citizen, a permanent resident or an “eligible New Zealand citizen”.
45.The applicant has no family ties in Australia and, in the Tribunal’s opinion, he has not yet established any other significant ties to the Australian community. Accordingly, this consideration does not assist the applicant’s case.
(b) The person’s age
46. The applicant is presently 25 years of age. The applicant’s age is not a significant consideration in this matter.
(c) The person’s health
47.There is no evidence before the Tribunal that the applicant has any problems with his health.
(d) Links to the country to which the person would be removed
48. As previously mentioned, all of the applicant’s family members reside in India, including his parents with whom (according to his own evidence) he would be able to reside if removed to India. Furthermore, the applicant was born, raised, and educated (up to tertiary level), and he commenced employment, in India.
49. In the Tribunal’s opinion, the applicant retains substantial family, social and cultural links to India, and, accordingly, this consideration does not assist the applicant’s case.
(e) Hardship likely to be experienced by the person
50.The applicant claimed that he would suffer hardship if removed to India in that:
· it would be very difficult for him and Ms Sreedharan to live together in India because of their different religions and because of opposition from their parents, whereas they would be able to live together in Australia if Ms Sreedharan’s visa application is approved and she joins him in Australia;
· he would suffer financial hardship because he would be required to study full-time for one year in India to update his professional qualifications before he could be employed and earn an income, and, furthermore, his prospects of obtaining employment would be less favourable in India than in Australia.
51.The Tribunal accepts that the cancellation of the visa and the applicant’s removal to India would cause him some emotional distress, including disappointment that his plan to work as an electronics/telecommunications engineer in Australia and to live here with his fiancée had been dashed, and personal embarrassment in having to explain the circumstances of his return to India to family members and friends in India.
52.As regards the applicant’s claim that his removal to India would cause him financial hardship, the Tribunal notes the applicant’s evidence that he was employed in India as a telecommunications engineer for one year after his graduation and that, after his arrival in Australia, he was unable to obtain employment as an engineer in Australia and, instead, worked as a “car detailer” and a “factory hand” until 6 December 2010 when he was taken into custody. The Tribunal is not satisfied that the applicant’s prospects of obtaining employment in the area of his professional qualifications, or his employment prospects generally, are better in Australia than in India. Nor is the Tribunal satisfied that the applicant’s removal to India would necessarily cause him significant financial hardship.
53.The Tribunal nevertheless accepts that this consideration regarding likely hardship to the applicant militates against cancellation of the visa but, in the Tribunal’s opinion, it does not so militate to a significant degree.
(f) Level of education
54.The applicant, as previously mentioned, was educated to tertiary level in India. Since he has been in Australia, however, he has not been able to secure employment in the area of his professional qualification and, according to his own evidence, in November 2010, about one month before he was incarcerated, he had commenced a “Professional Year Program” in engineering with “Navitas” in order to assist him to obtain professional employment in Australia in the future.
55.In the Tribunal’s opinion, the applicant has not yet made significant efforts to improve his education and qualifications in Australia and to enhance his capacity positively to contribute to the Australian community. Accordingly, this consideration presently does not, in the Tribunal’s opinion, militate against cancellation of the visa.
(g)Whether the person has been formally advised by the Department about conduct that brought the person within the character (visa refusal and cancellation) provisions of the Act
56.It is common ground that, prior to his commission of the relevant offences in July 2010, the applicant had not been formally advised by an officer of the DIAC about conduct that brought, or would bring, him within the provisions of the Act relating to visa refusal or cancellation on character grounds.
Conclusion
57.Having considered the applicable primary considerations and the other relevant considerations in this case, the ultimate task of the Tribunal is to determine, on the basis of the appropriate weight to be given to each of those considerations having regard to Direction [41], whether or not those considerations, on balance, favour cancellation, or non-cancellation, of the visa.
58.As regards the applicable primary considerations, the protection of the Australian community militates in favour of cancellation of the visa, and the fact that the applicant was ordinarily resident in Australia for only three months before he engaged in criminal activity does not weigh in his favour.
59.As regards the other considerations referred to in paragraphs 44–56 above, none of those considerations militates in favour of cancellation of the visa, but, in the Tribunal’s opinion, only one of those considerations militates against cancellation of the visa, namely, the consideration regarding likely hardship to the applicant, as discussed in paras 50–53 above.
60.Paragraph 11(2) of Direction [41] states that the relevant considerations, other than the primary considerations, “generally … should be given less weight than that given to primary considerations”. In the Tribunal’s opinion, there is no good reason for departing from that general principle in the circumstances of the present case. The Tribunal does not consider that the nature and degree of the hardship likely to be experienced by the applicant if he were removed to India are such that it would be appropriate to attach greater weight to that consideration than to the “primary consideration” regarding the protection of the Australian community. On the contrary, in the Tribunal’s opinion, it is appropriate that, in the circumstances of the present case, greater weight be attached to the protection of the Australian community than to the hardship likely to be experienced by the applicant. Accordingly, the assessment of the Tribunal is that, in the circumstances of the present case, the “primary consideration” regarding the protection of the Australian community outweighs the consideration regarding likely hardship to the applicant.
61.The Tribunal concludes, therefore, that, having regard to the totality of the applicable “primary considerations” and the other relevant considerations in this case, those considerations, on balance, favour cancellation of the visa. Accordingly, the preferable decision in this case is that the visa be cancelled pursuant to s 501(2) of the Act.
Decision
62.For the above reasons, the Tribunal affirms the decision under review.
I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
Signed: ...............[sgd D Brodie]........................
Associate
Date of Hearing 15 July 2011
Date of Decision 29 July 2011
Representative of the Applicant Self-represented
Representative of the Respondent Mr A Gerrard
Solicitor for the Respondent Australian Government Solicitor
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