Paul and Minister for Immigration and Citizenship
[2011] AATA 663
•26 September 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 663
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/2693
GENERAL ADMINISTRATIVE DIVISION ) Re Dipangkear Paul Applicant
And
Minister for Immigration and Citizenship
Respondent
DECISION
Tribunal Senior Member A K Britton Date26 September 2011
PlaceSydney
Decision Pursuant to s 43 (1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) the decision under review is set aside under and remitted to the Respondent with a recommendation that the decision to cancel Mr Paul’s visa, and in particular the likelihood of Mr Paul re-offending, be re-considered after he has completed the CORE program or, prior to his release, whichever comes first. .......................[sgd]..................
Senior Member A K Britton
CATCHWORDS
MIGRATION – visa cancellation – character test – Ministerial Direction – weighing of relevant considerations – applicant had not yet undertaken rehabilitation program - decision under review set aside and remitted to Respondent with recommendation that reconsideration occur after applicant’s completion of rehabilitation program or prior to release
Migration Act 1958 (Cth) – ss 499, 500(6L), 501
Crimes Act 1900 (NSW)
Crimes (Serious Sex Offenders) Act 2006 (NSW)
Administrative Appeals Tribunal Act 1975 (Cth) – s 2A, 43(1)(c)
Direction [no. 41] – Visa refusal and cancellation under s 501
Minister for Immigration & Citizenship v Toma (2011) 191 FCR 362; [2011] FCA 91
Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390; [2011] FCA 194
HQKW and Minister for Immigration and Citizenship [2010] AATA 763
REASONS FOR DECISION
26 September 2011 Senior Member A K Britton
1. Mr Dipangkear Paul is 32 years of age and currently serving a custodial sentence for sexual offences. The Minister for Immigration and Citizenship has decided to cancel his Australian visa which means that he will be deported. Mr Paul has applied to the Administrative Appeals Tribunal (AAT) for review of that decision.
2. Mr Paul does not pass the “character test” because he has a “substantial criminal record” and therefore the discretionary power to cancel his visa is enlivened: s 501 of the Migration Act 1958 (Cth) (“the Act”). The issue to be decided in this matter is whether that power should be exercised. In making that decision, “Direction [no. 41] – Visa refusal and cancellation under s 501” (the Direction), issued by the Minister under s 499 of the Act, must be applied.
Background
3. Mr Paul is a citizen of Bangladesh and arrived in Australia when he was 23 years of age on a student visa. He was granted permanent residency in January 2008.
4. Since arriving in Australia Mr Paul has been convicted of three offences under Division 10 of the Crimes Act 1900 (NSW). The first two — Aggravated Sexual Assault – Inflict Actual Bodily Harm on Victim and Aggravated Sexual Intercourse Without Consent —were committed in June 2008. The third — Assault with Act of Indecency — was committed six months later while Mr Paul was on bail. He has been in custody since March 2009.
5. Mr Paul is married to an Australian citizen, Ms X, who was also born in Bangladesh. Ms X’s brother and sister also live in Australia. In 2006 Ms X was diagnosed with endometriosis. Crippling pain forced her to stop work. Despite four operations, the condition requires on-going treatment and management. Ms X has also had surgery for a bowel obstruction and claims that she continues to suffer problems as a result.
6. In 2006, Ms X was advised that she was unable to have a child because of her endometriosis. This was a source of great sorrow to the couple. In August 2009, Ms X gave birth to a son after lengthy IVF treatment. She calls the son “a miracle child”. After her husband’s arrest in June 2008, Ms X was diagnosed and treated for depression. While no current diagnosis of depression, Ms X’s sister who also resides in Australia believes Ms X to be “extremely depressed”.
7. Ms X is currently unable to work on account of her poor health. She is reliant on Centrelink benefits and receives occasional support from her siblings resident in Australia. She and her son live with her brother and sister-in-law.
Factors relevant to the exercise of power to cancel Mr Paul’s visa
8. The Direction instructs that in exercising the power conferred by s 501, due consideration must be given to the Government’s objectives as set out in the preamble to the Direction:
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.
9. The Direction lists a number of “primary” and “other” considerations that must be taken into account by the decision-maker, and instructs that “other considerations” — namely those listed at cl 11 — should generally be given less weight than primary considerations: cl 11(2).
10. The primary considerations are set out in cl 10(1) of the Direction:
(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).
PRIMARY CONSIDERATIONS
(a) Protection of the Australian Community
11. Factors relevant to assessing the risk of harm to the community of Mr Paul’s continued stay in Australia include: (i) the seriousness and nature of the relevant conduct; and (ii) the risk that the conduct may be repeated: cll 10.1.1 and 10.1.2.
(i) Seriousness and nature of the conduct
12. The Direction sets out at cl 10.1.1(1) a number of factors that must be taken into account in assessing the seriousness and nature of the offending conduct and states:
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.
13. Clause 10.1.1(3) states that the sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community, and due regard must be given to the extent of the offender’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.
14. Clause 10.1.1(4) states that the following factors are also to be considered in the assessment of the seriousness and nature of the conduct:
(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;
…
15. June 2008 offences: The following summary of the details of these offences is taken from a statement of agreed facts tendered in the sentencing proceedings before the NSW District Court.
16. Mr Paul approached a young woman who was walking along a major Sydney road and offered her a lift. She refused and kept walking. Mr Paul followed her and again offered a lift. She refused. After following the victim for some time, Mr Paul eventually got out of his car and attempted to kiss her on the lips. She resisted. He then pulled her into a car park and pushed her back against a wall and pressed his lips into hers. She bit him and Mr Paul pressed his body into hers and grabbed her by the mouth. She pushed him away. He stumbled, recovered and punched her with a closed fist in the face and then again to the side of the head. The victim turned into the wall to protect herself by covering her face and head. He pulled down her jacket exposing her breasts. He threatened her saying “We can do this rough or the easy way”. She cried out “Please don't do this”. He pushed her to the ground and unsuccessfully tried to penetrate her. He said “We can do this the nice way or my way I'm a bad man". She screamed and begged him to stop. He digitally penetrated her a couple of times and walked away. The victim contacted the police, was taken to hospital and examined where she was found to have a swollen lip and facial bruising.
17. Mr Paul entered a guilty plea and was sentenced to four years and six months with a non-parole period of 28 months. On sentencing His Honour, Judge Knight DCJ said:
It does not need words of mine to indicate that this offence was one of considerable criminality. To assault a woman and then sexually further assault her are offences that any right thinking member of the community would regard with extreme disappropriation. Nothing I say should be taken as in any way indicating that I view this as anything other than a very serious criminal offence…
18. His Honour noted that Mr Paul’s prospects of rehabilitation were good, noting that he had not been in any trouble before. He recommended that Mr Paul participate in a sex offender program prior to the grant of parole.
19. December 2008 offence: The second incident occurred six months later while Mr Paul was on bail. It occurred in the kitchen of a large Sydney restaurant where Mr Paul was employed as a senior chef. The victim was employed as an apprentice chef and apparently 18 years of age.
20. The following summary of the offence is taken from an agreed statement of facts tendered in the proceedings before the Local Court. Mr Paul positioned himself behind the victim and massaged the victim over her clothing, initially on the shoulders and later towards the hip bone, stomach area, rib cage and sides of her breasts. The victim became uncomfortable but said nothing. He continued and moved his hands underneath her shirt. When asked “Do you want me to do more now or later", she immediately said “later".
21. The following day Mr Paul asked the victim on five occasions if she wanted a massage. She replied “I'm fine". Towards the end of the shift he asked again and she mumbled “sure”. Mr Paul directed her to sit so he could perform the massage. She said “no" but eventually acquiesced. On commencing the massage, Mr Paul immediately placed his hands underneath the victim’s shirt and worked his way up from the lower back towards her shoulders. He undid her bra strap. The victim was terrified and said nothing. She immediately placed both arms firmly and closely into the side of her body. The massage continued. Mr Paul touched her breast area underneath the underwire of the bra for about 10 to 15 seconds. A co-worker arrived. The victim jumped to her feet and walked away. Mr Paul called out “Come back we are not finished yet. It will just be five more minutes. Have you gotten all shy now?". The victim said “no” and returned to the kitchen area.
22. The following day the employer spoke to Mr Paul after receiving a complaint from the victim. Mr Paul admitted to massaging his colleague but claimed she had consented. He was dismissed. The victim reported the incident to police a week later. Charges were laid six months later. He entered a guilty plea and was sentenced to six months imprisonment to be served concurrently with the sentence imposed for the June 2008 offences.
Mitigating factors
23. I understand it is argued for Mr Paul that his level of intoxication on the day of the offence was a mitigating factor. According to Mr Paul some time before the offence he had started to drink heavily and regularly to relieve the stress he was under as a result of financial pressures, his wife’s illness and her (then) failure to conceive on the IVF program. He reported to Dr Matthew Jones that prior to the offences he had three beers and four scotches (as recorded in a report dated 26 August 2011). Dr Jones thought the offence itself appeared to be associated with a moderate binge of alcohol consumption.
(ii) Risk that the conduct might be repeated
Previous general conduct
24. There is no evidence of Mr Paul having committed any offence prior to June 2008. The weight of evidence is that up until that time he was considered to be a person of good character. His conduct while in prison has been exemplary.
Evidence of rehabilitation
25. While in prison, Mr Paul has completed a number of alcohol rehabilitation programs. He claims that he intends not to touch alcohol on his release. In July of this year the NSW Parole Board decided not to release Mr Paul on parole or reconsider an application for parole before 6 August 2012. The stated reason for that decision was Mr Paul’s need to address his offending conduct by way of a therapeutic program such as CORE. I accept, as submitted by Counsel for Mr Paul, that the reference in the Board’s reasons for decision to the “need for post-release accommodation” is probably an error and there is nothing to indicate that Ms X’s home, where he intends to reside on release if not deported, has been assessed as unsuitable or is likely to be.
26. CORE is a non-residential therapy program for lower risk sex offenders provided by the Department of Corrective Services. The program runs for between six to eight months. Mr Paul applied to undertake the program in 2009 and in March 2010 was assessed as suitable and placed on a waiting list. In May 2011, the NSW Probation and Parole Service thought it unlikely that Mr Paul would be offered a place before August 2011.
Mr Paul’s attitude to the offences
27. In a statement prepared for these proceedings, Mr Paul stated that he still had nightmares about the June 2008 offences and understands that it would have been frightening for his victim. In his opinion, alcohol caused a lapse in judgement and had he not been drinking he would not now be in gaol. His Honour, Judge Knight DCJ accepted that Mr Paul was genuinely remorseful.
28. In respect of the third offence, Mr Paul stated in these proceedings that he does not believe that he fondled the victim’s breasts but entered a guilty plea on legal advice. He stated that at the time he was unaware that the victim had any objections to what he was doing. He stated that he has now been advised by his lawyers that “no means no” in relation to any contact of a sexual nature and understands that “sexual harassment” is unlawful.
29. In oral testimony, he stated that at the time of the offence it was common place for kitchen staff to give each other back and shoulder massages.
Expert opinion on recidivism
30. For the purposes of these proceedings, Mr Paul was assessed by psychiatrist, Dr Matthew Jones and psychologist, Ms Kathryn Wakely. Each prepared reports and gave oral evidence.
31. Ms Wakely assessed Mr Paul using two assessment methods - Static-99 and RSVP (Risk for Sexual Violence Protocol). Static-99 is an actuarial tool used to predict recidivism rates of known sex offenders by examining static risk factors such as the offender’s age and offending history. Mr Paul’s score under Static–99 placed Mr Paul in the second lowest risk category — low–moderate risk. According to Ms Wakely, this meant that Mr Paul’s “theoretical” risk of reoffending is 12 per cent (within five years of the offence) increasing to 19 per cent (after 15 years of the offence). Ms Wakely cautioned against over reliance on these figures pointing out that they do not assist in predicting whether Mr Paul will fall within the 12 to 19 per cent of offenders who go on to reoffend, or the 81 to 88 per cent of offenders who do not.
32. RSVP assesses an individual’s risk of recidivism by examining dynamic risk factors. Ms Wakely concluded that in Mr Paul’s case the following factors were a source of concern:
·Physical coercion involved in the initial offence
·Minimisation in relation to the second offence
·Problems with self-awareness
·Previous problems with and exposure to heightened stress and difficulties in coping which may continue post-release
·Use of alcohol as a means of coping. Ms Wakeley noted that Mr Paul has taken some steps to address this
33. Ms Wakely also noted that a number of “risk factors” did not apply to Mr Paul including: chronicity of offending; escalation of sexual violence; sexual deviance; attitudes that condone sexually abusive behaviour and problems with employment; and intimate and non-intimate relationships.
34. On the basis of that assessment, Ms Wakely concluded that consistent with the results of the actuarial assessment, Mr Paul posed a low to moderate risk of reoffending. In her opinion, if he were to complete the CORE programme his risk of reoffending would further reduce.
35. Dr Jones reached broadly the same conclusion. In his opinion, Mr Paul was unlikely to reoffend. He thought that if Mr Paul were to remain in Australia, undertake sex offender treatment as proposed, maintain stable family relationships, accommodation and gainful employment, his risk would drift towards the lower end of the low to moderate category.
36. The only information about the third offence available to Dr Jones and Ms Wakeley when they prepared their respective reports was an extract of the comments made on sentencing by the presiding magistrate and the account given by Mr Paul in interview. That account was significantly more sanitised than that set out in the statement of agreed facts. Among other things, Mr Paul made no mention of repeatedly asking the victim if she would like a massage, touching her on the “breast area on the underneath of underwire of the bra” and undoing the clasp of her bra. Both Dr Jones and Ms Wakeley considered that the version set out in the agreed facts incident was substantially more serious than that described by Mr Paul. Nonetheless, Ms Wakeley stood by her original opinion. She stated that in making her original assessment she had assumed that Mr Paul had little insight and minimised his conduct. Dr Jones revised his original opinion on the basis of this new information but only to a small extent. He concluded that it indicated a subtle but not substantial increase in risk. In his opinion, the details of this offence indicated that Mr Paul probably had a deficit in reading body language and social cues, especially when the victim was essentially mute.
37. Dr Jones stated that while insight into the offending conduct is a positive prognostic sign it is not determinative of a person’s risk of reoffending. He stated that a number of recent studies suggest that sex offenders can be successfully treated even where they continue to deny culpability.
38. Mr Paul was assessed in April 2009 by psychiatrist Dr Olav Neilson for the purpose of the District Court proceedings in relation to the June 2008 offences. Dr Neilson concluded that based on the “usual predictors of recidivism”, Mr Paul had reasonable prospects for rehabilitation, as he had no previous convictions, was not thought to have a significant abuse disorder, has professional qualifications, a strong work ethic and stable relationship and moreover appeared aghast at his behaviour and expressed a high level of regret and remorse. Mr Paul had not been charged with the third offence when Dr Neilson prepared his report.
Evidence of breaching judicial orders etc.
39. Mr Paul’s third offence was committed while he was on bail. This is the sole example of Mr Paul breaching judicial orders or the like.
Mental health
40. Shortly after being charged in relation to the June 2008 offences, Mr Paul was diagnosed and treated for depression. There is no current diagnosis of depression and Dr Jones is of the opinion that Mr Paul does not suffer any other psychiatric condition. There is no evidence of any history of mental illness.
Protection of the Australian Community: Findings and Conclusions
41. The primary consideration of the protection of the Australian community requires an assessment of both the seriousness of Mr Paul’s offending conduct and the risk that it might be repeated.
42. There is no issue that the June 2008 offences were serious in nature. They involve the sexual assault and violent attack of a young woman in the middle of the night. As reflected by the sentence imposed, the third offence – assault with act of indecency — was less serious than the earlier offences. Consistent with the Direction which lists “as examples of serious offences rape and any other sexually – based offences”, it must be regarded as serious.
43. While as pointed out by his Counsel, Mr Paul does not have an extensive criminal history, nonetheless the third offence was committed within six months of committing and being charged with the first offences. Given this short interlude, the fact that all offences were of a sexual nature and the serious nature of the offences, I conclude that the “relevant conduct” taken overall is serious but not in the most serious category.
44. In assessing the risk that Mr Paul might reoffend it is necessary to have regard to the “highly relevant” and “particularly relevant” factors set out in subcll (1) and (2) of cl 10.1.2: Minister for Immigration & Citizenship v Toma (2011) 191 FCR 362 at 372-373.
45. Mr Paul’s previous good conduct is highly relevant to the risk of his reoffending and in my opinion significantly reduces his risk of further offending. The consensus of expert opinion was that Mr Paul’s previous good conduct was a powerful predictor of his risk of reoffending.
46. It is troubling, in my opinion, that despite his conviction Mr Paul has little insight into his most recent offence. His account of that incident given to the Tribunal, Dr Jones, Ms Wakely and Ms Jelen suggests that despite claiming to be contrite, Mr Paul struggles to appreciate why his actions led to a conviction. While, as Dr Jones points out, insight of itself is not determinative, it is nonetheless a protective factor against reoffending.
47. It is encouraging that Mr Paul has undertaken a number of courses in alcohol rehabilitation. I accept that his resolve not to consume alcohol on his release is genuine and given the relatively short period he consumed alcohol on a regular basis, it is likely that he will be able to do so. While abstinence will reduce Mr Paul’s risk of reoffending, it will be recalled that alcohol played no part in his third offence, which was committed at a time when he was entirely sober.
48. The consensus of expert opinion is that there is a low to moderate risk that Mr Paul will reoffend and that risk will be materially reduced if he were to undertake appropriate treatment such as the CORE program. While a number of factors have been identified which will reduce Mr Paul’s risk of recidivism, such as stable relationships and relatively good prospects of employment, given the seriousness of his offending conduct, the protection of the Australian community weighs in favour of the cancellation of Mr Paul’s visa, at least until such time as he has undertaken appropriate rehabilitation. I will return to consider whether it is appropriate to make a concluded finding about this consideration prior to Mr Paul undertaking such treatment.
(B) Age when began living in Australia
49. Mr Paul was 23 years of age when he arrived in Australia.
50. In Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390 at 396, Rares J noted that no guidance is provided in the Direction as to the weight that should be given to this Consideration where the visa holder was not a minor when they arrived in Australia. His Honour was of the opinion that a decision-maker is:
[E]ntitled to take into account the fact that a person who arrived in Australia as an adult, did so with the knowledge, duties and responsibilities of an adult in the position of the visa holder, at that time for the purposes of assessing what, if any, weight ought be given to that factor in the deliberative process.
51. While he was relatively young when he arrived in Australia, Mr Paul was nonetheless an adult. In my opinion this consideration weighs against Mr Paul.
(C) Time resident in Australia
52. Under the Direction, “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”: cl 10.3(1).
53. Mr Paul had resided in Australia for just over six years before committing his first offence. He has significant ties with the Australian community — his wife and son are Australian citizens and he has a close relationship with his wife’s sister and brother and their respective families who live in Australia. This Consideration weighs slightly in Mr Paul’s favour.
(D) The best interests of the child
54. The Direction states that it is generally presumed that a child's interests will be best served if they remain with their parents: cl 10.4.1(4). Clause 10.4.1(5) lists a number of factors that must be considered in assessing the best interests of each child. Those relevant are addressed below in no particular order.
55. As noted, Mr Paul’s son has just turned two years of age. Mr Paul has been in custody since his wife was about three months pregnant. Ms X visited Mr Paul throughout her pregnancy and continued to do so on a fortnightly basis after their son was born. The frequency of those visits have now decreased to every third week, as Ms X finds negotiating public transport with an active toddler increasingly difficult. According to Ms X, the child enjoys visiting his father and while at the start of each visit he is reserved, once settled he does not leave his father’s side. On her account she and the child speak to Mr Paul eight or nine times a day. She claims that the child is very excited when he hears his father’s voice and calls him “Baba” - Hindi for father.
56. Mr Paul testified that he is deeply committed to his son. That claim is supported by the evidence given by his wife and her siblings resident in Australia and the assessment of social worker, Ms Mary Jelen. A report prepared by Ms Jelen was tendered in these proceedings. Ms Jelen also gave oral evidence.
57. The child lives with and is cared for by Ms X. Ms X also lives with her brother. She testified that her brother intends to move to a separate residence in the near future. The brother contends that his wife who has recently joined the household is unhappy with the current living arrangements and is eager to move out. Ms X claims that it is unlikely that her brother or sister, who lives about 200 kilometres away, would provide her with any significant support if her husband were to be deported, as both have families and commitments.
58. Ms X told the Tribunal that if her husband were to be deported she would not accompany him to Bangladesh because of her health and her belief that it is in her son’s best interests that he remain in Australia. When interviewed by social worker Ms Jelen shortly before these proceedings, Ms X became distressed when questioned about her plans in the event her husband was deported. She told Ms Jelen that there “nothing for [her] in Bangladesh” but given her strong commitment to her marriage she would be prepared to compromise her own health and quality of life by returning to live with him in Bangladesh. She also told Ms Jelen about her fears for her son and “his lost future” if the family were to return to Bangladesh. In these proceedings, Ms Jelen said she was not surprised to learn that Ms X now intended to remain in Australia. She said when she raised the issue it was apparent that Ms X had not confronted the issue and was genuinely torn between a desire to keep the family together and the diminished quality of life a return to Bangladesh would inevitably bring. In Ms Jelen’s opinion, if Mr Paul were to be deported, Ms X would struggle to make what she considered the best decision and would probably revise her plans over time.
59. In my opinion, it would be in the child’s best interests for Mr Paul not to be deported regardless of whether Ms X remained in Australia or returned to Bangladesh. This is because the child’s interests are inextricably linked with those of his primary care giver, his mother, and in my opinion she would be best placed to discharge her parenting responsibilities if she and Mr Paul remained in Australia.
60. Given her poor physical and emotional health, I believe it is likely Ms X would probably find it difficult over the long term to continue to discharge her parenting responsibilities in Australia without the financial and emotional support of her husband. While I believe she has understated the extent to which her siblings would assist her, I accept that if she were to remain in Australia without her husband the responsibility for her son’s care and welfare would largely fall to her
61. Given his age and limited contact with his father, it is unlikely that the child would suffer significant distress if he were to be separated from Mr Paul despite having developed what Ms Jelen characterises as a “secondary attachment”. Nonetheless, Mr Paul’s commitment to his son appears to be genuine and, as his wife believes, given the opportunity it is probable that he would take on an active parenting role. It would be in the child’s long-term best interests to be able to develop a meaningful relationship with his father and receive the care and support of both parents.
62. If, on the other hand, Ms X were to accompany Mr Paul to Bangladesh, there is a real possibility that her health, and as a consequence, capacity to parent, would be compromised. Her chronic medical conditions – endometriosis and a secondary bowel problem – require on-going supervision and treatment and it is unlikely that she will have access to quality and affordable medical treatment in Bangladesh. The financial uncertainty associated with a return to Bangladesh, together with comparatively limited educational opportunities, leads me to conclude that it would not be in the child’s best interests to accompany his parents to Bangladesh.
63. The Minister is correct that, given his young age the child would not face cultural or language barriers if he were to accompany his parents to Bangladesh. Nonetheless, the balance of factors in my opinion indicate that it is demonstrably in the child’s best interests that his father not be deported. This consideration weighs heavily in Mr Paul’s favour.
OTHER CONSIDERATIONS
64. The Direction specifies a number of “other considerations” that must be taken into account, if relevant. They should generally be given less weight than the four primary considerations: cl 11(2).
Family ties to Australia
65. Mr Paul has close ties with his wife’s sister and brother and their respective families who live in Australia. Ms X’s sister, Ms Banane Biswas, lives with her husband and two children in country NSW. They were in regular contact with Mr Paul prior to his incarceration and remain in regular contact with Ms X and her son. Ms Biswas testified that she is extremely grateful for the care and support Mr Paul provided to her sister when she was suffering from endometriosis. She and her brother testified that their respective families would welcome Mr Paul into their homes on his release from prison.
66. Ms X and Mr Paul met in Bangladesh in 1998 and married in 2003. I agree with Ms Jelen’s assessment that the marriage appears strong. There was no indication when Ms X entered into a relationship with her then future husband that he might become a person of “character concern”.
Other ties to Australia
67. Tendered in the District Court proceedings were a large number of character references provided by family members and former colleagues of Mr Paul. They indicate that Mr Paul was well liked and respected. The consensus of opinion was that his offending conduct was out of character. Apart from family members, it is unclear the extent to which Mr Paul has maintained contact with these referees after he commenced his custodial sentence in March 2009.
Age and health
68. Mr Paul is relatively young and in good health.
Links to Bangladesh
69. Three years before migrating to Australia, Mr Paul lived and studied in India, returning to Bangladesh each year to visit his family and Ms X. In 2003, he returned to Bangladesh for three months to marry Ms X.
70. Mr Paul’s mother, three sisters and one of his brothers live in Bangladesh. He claims that his parents’ siblings left Bangladesh some years ago. Ms X’s parents and brother live in Bangladesh. She and Mr Paul claim that they have not told their respective families about Mr Paul’s convictions.
Hardship likely to be experienced by Mr Paul
71. Mr Paul contends that he will suffer considerable hardship if deported. He and his wife assert that at best he would be able to obtain menial employment in Bangladesh because of high unemployment and discrimination towards religious minorities, including Hindus. Each claim that if he were deported it is likely that Mr Paul would be shunned by their respective families on account of his criminal conduct and that their families would be unable or unwilling to assist him find employment or accommodation. Mr Paul claims that while his family were relatively comfortable, since his father’s death in 1995 the family’s business and consequently the family’s financial position, has gone into decline.
72. It is difficult to reach any reliable conclusion about whether as claimed Mr Paul would suffer significant hardship if he were to return to Bangladesh. Neither he nor his wife are in a position to give independent evidence and their prediction as to how much support their respective families could or would provide is based on a degree of speculation. Nonetheless, I accept that Mr Paul would find it more difficult to find employment and accommodation in Bangladesh than in Australia. I also accept that there is considerable uncertainty over whether Mr Paul would be able to turn to his family or in-laws for support.
73. As the Minister points out, the issue to be decided is not whether religious discrimination exists in Bangladesh but whether Mr Paul is likely to be the victim of such discrimination. While the evidence relied upon by Mr Paul is general in nature, (see s 501 “G” documents pp. 71-77) I think it reasonable to infer that there is a risk that that Mr Paul might suffer some form of discrimination if he were to return to Bangladesh.
74. These factors lead me to conclude that Mr Paul would suffer some hardship if deported. Coupled with the uncertainty over whether he would be joined in Bangladesh by his wife and son and the anguish the pain he would suffer if this did not occur leads me to conclude that this factor weighs in Mr Paul’s favour.
Hardship likely to be experienced by Mr Paul’s family members resident in Australia
75. As discussed, in my opinion both Ms X and her son would suffer considerable hardship if Mr Paul were to be deported regardless of whether they remained in Australia or joined him in Bangladesh.
Education
76. Mr Paul is well educated and able to advocate on his own behalf.
77. He has made considerable efforts to improve his level of education while in Australia. He currently holds a masters degree in information technology and qualifications as a chef. While in custody he obtained a number of trade qualifications.
Notification of possible deportation
73. Mr Paul was not notified that his criminal conduct might result in his visa being revoked, prior to the decision the subject of this review.
Other considerations: Findings and conclusions
78. Of the “other considerations”, I consider the hardship likely to be experienced by his wife if Mr Paul were to be deported to be the most relevant. Factors which also weigh in his favour, but to a lesser extent, include the hardship he would suffer and the contribution he would probably be able to make to Australian society on account of his education if he were to remain. The hardship Mr Paul would suffer if deported would be ameliorated to a significant degree by the fact that he is well educated and in good health, able to advocate on his own behalf and retains significant links to Bangladesh.
Decision
79. In deciding whether to exercise the discretionary power to cancel Mr Paul’s visa, I must take into account both the primary and “other” considerations and undertake a balancing exercise. In doing so, I must be guided by the overarching general principle set out in the objectives to the Direction — that is, the protection of the Australian community.
80. Of the primary considerations that weigh against the cancellation of Mr Paul’s visa, the interests of his son, in my opinion, is the most significant. Of those that favour cancellation I believe the protection of the Australian community to be the most significant. Of the “other” considerations, in my opinion, greater weight should be given to the likely hardship that Ms X would suffer if her husband were to be deported.
81. The circumstances in this case are somewhat unusual because when the decision was taken to cancel Mr Paul’s visa, it was expected that his release from prison was imminent. This did not eventuate because of the decision taken by the NSW Parole Board not to released Mr Paul because he had not undertaken the CORE program. That decision will not be revisited for 12 months.
82. At the conclusion of these proceedings, I raised with the parties whether a concluded finding should be made about Mr Paul’s risk of reoffending in circumstances where he was yet to undertake a recommended rehabilitation program and was not due for release for some time. I invited comment on whether the preferable course in these circumstances would be to remit the matter for further determination.
83. In written submissions, both parties urged against remittal. The Minister contended that the preferable course was to affirm the cancellation of Mr Paul’s visa. Not surprisingly, Mr Paul did not agree and urged me to set aside the cancellation decision.
84. The Minister submitted that there was no conclusive evidence that Mr Paul will complete a sexual offender’s program prior to release and “mere conjecture” that it will be satisfactorily completed. It was also submitted that to remit the matter would result in uncertainty and given that Mr Paul has now served the non-parole part of his sentence a final determination should be made.
85. It was submitted for Mr Paul that there is a “high likelihood” that he will satisfactorily complete the CORE program prior to his release. His Counsel contended that in the unlikely event that he was not given this opportunity, an extended supervision order could be made under the Crimes (Serious Sex Offenders) Act 2006 (NSW) requiring Mr Paul to participate in an equivalent program on release. Counsel stated that Mr Paul was prepared to give an undertaking to undertake an appropriate program in the community.
86. I accept that through no fault of Mr Paul, to date he has not been given the opportunity to participate in the CORE program despite being assessed as suitable in March 2010. While not altogether clear, it would appear that this unfortunate state of affairs has arisen because demand for places outstrips supply. While not possible to pre-empt the decision of the Parole Board, it seems likely that, providing Mr Paul successfully completes the CORE program and continues to be of good behaviour, he will be released from prison in August of next year.
87. While there are some positive indications that Mr Paul will be offered a place in the CORE program prior to his release, there is no certainty. Neither the Minister, nor the Tribunal acting as substitute decision-maker, have power to direct that this occurs or that Mr Paul’s participation in an equivalent program is made a condition of his parole. Furthermore while Mr Paul’s stated willingness to participate in the CORE program is a positive sign, prior to completing the program, it is not possible to say to what extent his participation has reduced his risk of recidivism.
88. I do not accept the submission made by both parties that in the interests of timeliness a final decision should now be made. The Tribunal is directed to provide a mechanism of review that is not only economical and quick but just and fair (s 2A of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act)). While, as the Minster points out, s 500(6L) of the Migration Act imposes strict time limits on the Tribunal when making decisions under s 501, it does not operate to prevent the Tribunal from exercising its powers to remit the decision under s 43(1)(c) of the AAT Act, even where the practical effect of that decision is to delay any final decision. I note that this course was adopted by Deputy President Hack in HQKW and Minister for Immigration and Citizenship [2010] AATA 763.
89. In deciding whether to cancel Mr Paul’s visa, the Direction instructs that any rehabilitation undertaken must be taken into account in the assessment of the risk that he might reoffend. In circumstances where Mr Paul is not due for release for a further 12 months and during that time is likely to undertake a program which the experts believe will probably reduce his risk of recidivism, it would be premature in my opinion to now decide whether the discretionary power to cancel his Australian visa should be exercised.
90. For these reasons, I have decided that the preferable decision is to set aside the decision to cancel Mr Paul’s visa and remit it to the Minister with a recommendation that the cancellation of Mr Paul’s visa be considered after he has completed the CORE program or, prior to his release, whichever comes first.
Confidentiality orders
91. In final written submissions Mr Paul applied for orders under s 35 of the AAT Act to “anonymise its decision”. The Minister does not consent. This application should have been made prior to the conclusion of the hearing because the parties will now be required to make further submissions and incur additional expense. The application will be listed for a short hearing to consider the application. In the meantime the Registrar is requested not to publish the decision in electronic form as is the AAT’s practice.
I certify that the 91 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton.
Signed: .........................[sgd].............................
Associate to Senior Member BrittonDate/s of Hearing 20 and 21 September 2011
Date of Decision 26 September 2011
Solicitor for the Applicant Mr P Ambrose, Legal Aid NSW
Counsel for the Applicant Ms M TibbeySolicitor for the Respondent Ms L Weston, Minter Ellison
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