Prasad and Minister for Immigration and Citizenship
[2011] AATA 184
•22 March 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION
[2011] AATA 184
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/0093
GENERAL ADMINISTRATIVE DIVISION )
Re Sajen Satnesh PRASAD
Applicant
AndMinister for Immigration and Citizenship
Respondent
DECISION
TribunalMr RP Handley, Deputy President
Date22 March 2011
PlaceSydney
DecisionThe decision under review is set aside and a decision substituted that the discretion in s 501(2) of the Migration Act 1958 should be exercised in Mr Prasad’s favour so that his visa is not cancelled.
………………[sgd]……………...
Mr RP Handley
Deputy President
CATCHWORDS
IMMIGRATION – visa cancellation - character test – Direction 41 - substantial criminal record – primary considerations – protection of the Australian community – seriousness and nature of the conduct – risk that the conduct may be repeated – whether a minor when person began living in Australia – length of time ordinarily resident in Australia prior to engaging in criminal activity – other considerations - family ties, the nature and extent of any relationships – person’s age and health – links to the country to which they would be removed – hardship likely to be experienced by the person or their immediate family members – level of education - whether the person has been formally advised in the past of conduct that brought the person within deportation provisions
RELEVANT ACT
Migration Act 1958 (Cth): s 501
CITATIONS
Re Puafisi and Minister for Immigration and Citizenship [2009] AATA 689
OTHER AUTHORITIES
Direction [no. 41] - Visa Refusal and Cancellation under section 501
REASONS FOR DECISION
22 March 2011
Mr R P Handley, Deputy President
1. Mr Prasad has applied to the Tribunal for the review of a decision of a delegate of the Minister for Immigration and Citizenship (the Minister) to cancel Mr Prasad’s visa on the ground that he does not pass the character test.
BACKGROUND
2. Mr Prasad was born in Fiji in June 1986 and is aged 24. He is a Fijian citizen. He first arrived in Australia in July 2002, aged 16, with his parents and three siblings, having been granted a Subclass 138 Skilled - Australian sponsored (Migrant) (Class BQ) visa, which permits residence in Australia indefinitely. Apart from one visit to Fiji for a period of two and a half months in 2004, he has remained in Australia since his arrival.
3. Mr Prasad’s criminal history includes the following convictions:
·15 February 2006 (date charged 20 January 2006) – use unregistered vehicle, providing a false name or address, driving with low range PCA, fined and disqualified from driving for 3 months
·15 March 2006 (date charged 11 August 2005) – larceny less than $2,000, imprisonment for 56 days commencing 11 August 2005
·16 April 2007 (date charged 2 June 2006) – ‘break and enter building (steal) less than $15,000’ (2 counts), imprisonment for 11 months with 5 months non-parole (on appeal on 19 September 2007 this was amended to a 11‑month suspended sentence plus a 2‑year bond)
·16 April 2007 (date charged 10 October 2006) – contravene apprehended domestic violence order and goods in personal custody suspected of being stolen, bond and 2 years supervised probation (confirmed on appeal on 19 September 2007)
·16 April 2007 (date charged 18 October 2006) – contravene apprehended domestic violence order, bond for 2 years
·16 April 2007 (date charged 4 November 2006) – common assault, contravene apprehended domestic violence order, and remain in building/land with intent to commit indictable offence, 4 months imprisonment commencing 16 April 2007 (on appeal, sentence reduced to 3 months commencing 19 June 2007)
·25 October 2007 (date charged 13 March 2007) - contravene apprehended domestic violence order, fined
·8 January 2008 (date charged 8 December 2007) – assault occasioning actual bodily harm, fined
·2 October 2008 (charged 20 August 2008) – destroy or damage property (3 counts), ‘resist officer in the execution of duty’, fined; contravene probation/restriction in AVO (domestic), 9‑month suspended sentence with bond
·22 April 2009 – breach of bonds: (1) 11 months suspended sentence commencing 2 February 2009 plus a bond (bond for convictions in respect of charges dated 10 October 2006), and (2) 3 months imprisonment commencing 2 January 2009 (bond for conviction in respect of charge dated 18 October 2006)
·6 November 2009 (date charged 6 November 2009) – destroy or damage property, imprisonment for 3 months (reduced on appeal on 11 December 2009 to 1 month commencing 6 November 2009)
·11 March 2010 (date charged 26 August 2009) - contravene probation/restriction in AVO (domestic), 18 months imprisonment commencing 5 March 2010 with 8 months non-parole period concluding 4 November 2010 (confirmed on appeal 7 May 2010); ‘common assault (DV)’, 6 months imprisonment commencing 5 March 2010 (confirmed on appeal 7 May 2010)
4. Mr Prasad was released from prison on parole on 4 November 2010 and resumed living with his parents. He was detained and taken into immigration detention on 6 January 2011.
5. On 16 January 2009, the Department of Immigration and Citizenship (the Department) wrote to Mr Prasad warning him that any further criminal convictions could result in consideration being given to the cancellation of his visa.
6. By letter dated 12 October 2010, the Department notified Mr Prasad of its intention to consider cancellation of his visa and inviting him to respond. On 22 October 2010, he responded with submissions. On 11 November 2010, the Department sent Mr Prasad an ‘Immigration Report’ dated 4 November 2010 prepared for the Department by the Probation and Parole Service, Wagga Wagga District Office (the Immigration Report), inviting him to comment, to which he responded on 16 November 2010. On 22 December 2010, a delegate of the Minister decided to cancel Mr Prasad’s visa and he was notified of this by (undated) letter hand-delivered and received by him on 6 January 2011. On 7 January 2011, Mr Prasad applied to the Tribunal for a review of this decision.
7. The Tribunal was provided with the following statements from Mr Prasad’s family members and a prospective employer, all of whom gave evidence at the hearing except the prospective employer:
·a statutory declaration dated 7 March 2011 from his father, Mr Prasad Senior, and an earlier statutory declaration dated 16 December 2010 and statement dated 31 January 2011
·a statutory declaration dated 22 February 2011 from his mother, Mrs Prasad, and an earlier statutory declaration dated 16 December 2010 and statement dated 31 January 2011
·a statement dated 31 January 2011 from his brother and a statement from his brother’s wife of the same date, together with their joint statement of 6 March 2011
·a statement dated 31 January 2011 from his younger sister
·a statement dated 31 January 2011 from his uncle, and an undated joint statement from his uncle (in fact, his father’s first cousin) and his aunty
·a statement from his aunty dated 16 February 2011
·a statement dated 16 February 2011 together with a letter dated 6 March 2011 from his aunty’s partner
·a statement dated 16 February 2011 from his cousin, and
·a statement dated 16 February 2011 from his prospective employer.
8. The Tribunal was also provided with a psychological assessment report dated 18 February 2011 from Dr John Jacmon, consultant psychologist, who gave evidence by telephone.
RELEVANT LAW AND POLICY
9. Section 501(2) of the Migration Act1958 (Cth) (the Act) provides that the Minister may cancel a visa if “the Minister reasonably suspects that the person does not pass the character test” and “the person does not satisfy the Minister that the person passes the character test”. Section 501(6) provides that a person does not pass the character test if the person has a substantial criminal record. ‘Substantial criminal record’ is defined in s 501(7) as, among other things, having been sentenced to a term of imprisonment of 12 months or more, or to two or more terms of imprisonment where the total of those terms is two years or more.
10. Mr Prasad has been sentenced to a term of imprisonment of 12 months or more, specifically his most recent sentence of 18 months imprisonment. Thus, he does not pass the character test. It was therefore open to the Minister to cancel Mr Prasad’s visa. In exercising this discretion, the decision-maker must apply Direction [no. 41] - Visa Refusal and Cancellation under section 501 of the Act (Direction No 41). Direction No 41 contains a number of ‘primary’ and ‘other’ considerations to which the decision-maker must have regard when considering whether to exercise the discretion to refuse or cancel a visa.
11. The primary considerations in Direction No 41 are set out in paragraph 10(1):
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).
12. These considerations are elaborated on by a range of factors to which regard must be had. There are also a number of ‘other’ considerations that, where relevant, must be taken into account but, generally, in accordance with Direction No 41 paragraph 11(2), they should be given less weight than the ‘primary’ considerations. Those ‘other’ considerations are discussed below.
Primary Considerations
13. The ‘primary’ considerations relevant in Mr Prasad’s case are the protection of the Australian community, the fact that he was a minor when he began living in Australia, and the length of time that he was ordinarily resident in Australia prior to engaging in criminal activity. These considerations are addressed below.
the protection of the australian community
14. Direction No 41 identifies two factors relevant to this consideration: the seriousness and nature of the relevant conduct, and the risk that the conduct may be repeated.
The seriousness of the conduct
15. With regard to the seriousness of Mr Prasad’s conduct, the Tribunal notes that paragraph 10.1.1(1) states:
Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community.
Mr Prasad has six convictions for contravening an apprehended domestic violence order and many of his other convictions are associated with these contraventions, including his three convictions for assault.
16. Paragraph 10.1.1(3) states, “The sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community”, and regard must be had to the number and nature of offences, the period between offences and the time elapsed since the most recent offence. Among the factors to be considered pursuant to paragraph 10.1.1(4) are any judicial comments made about the person, parole assessments and any relevant mitigating factors.
17. The Tribunal has been provided with a copy of the transcript of Magistrate Swain’s remarks on sentencing Mr Prasad on 11 March 2010 after his entering a guilty plea. She noted that this was the sixth breach of a domestic violence order and this and the associated assault were committed while Mr Prasad was on parole. The Magistrate noted that Mr Prasad had been in custody since 26 August 2009 serving a balance of parole for other convictions, in particular those for the break, enter and steal offences. She noted that the assault conviction arose from Mr Prasad punching his victim on the head, causing her to fall to the ground, and commented:
… Mr Prasad is a young adult, he has drug issues, anger management issues and clearly he does not understand how to conduct himself in a relationship. He will need assistance in rehabilitation.
18. The Tribunal has also been provided with copies of Probation and Parole Service reports concerning breaches of parole by Mr Prasad in June/July 2009. (At that time he was serving an 11‑month suspended sentence imposed on 22 April 2009.) A report dated 29 July 2009, recommending that his parole be revoked, states that Mr Prasad had failed to comply with the conditions of his parole by not attending scheduled appointments and by not attending his local drug and alcohol counselling service as directed. The Burwood District Manager stated:
It would appear that Mr Prasad is evading his obligations under the terms of his order. He has failed to accept the guidance of this Service in regard to addressing his substance abuse issues and continues to demonstrate a laissez-faire attitude to supervision.
19. An earlier report dated 16 July 2009 notes that Mr Prasad was given a written direction to attend urinalysis testing on 11 and 23 June 2009 and that:
Both tests were returned with positive readings for cannabis metabolite. Mr Prasad advised that he had smoked cannabis while in custody. The second test was returned with a higher metabolite reading. The offender then admitted to using cannabis in the community.
20. At the hearing, Mr Prasad acknowledged that he had used cannabis at that time. It was this that led to the breach of parole and to his serving a further six months in prison. (The State Parole Authority revoked Mr Prasad’s parole on 31 July 2009.)
21. The Immigration Report dated 4 November 2010 noted two breaches of prison discipline: 8 April 2010, “fail prescribed urine test”, and 26 July 2010, “possess create prohibited goods”. Mr Prasad said that he had failed the urine test because of “unprescribed sleeping tablets” he had taken. The Report states:
Contact with Custodial staff indicated that Mr Prasad’s behaviour within the Unit has presented as a management issue. It was indicated that the offender whilst portraying himself as a positive influence within the unit, was purportedly involved in standover behaviours and had been running an unauthorised “shop” within the wing. It was further indicated that the offender was placed on a unit segregation order prior to his release on 4 November 2010.
22. Mr Prasad said that he was picked on in prison and did what he had to do in order to survive in the prison environment. He said that when his former girlfriend’s brother was transferred to the same prison (Junee Correctional Centre), the brother told the other prisoners that Mr Prasad had stabbed his sister and that Mr Prasad should be dealt with. Mr Prasad said when he learned of this through a friend, he told the prison guards of the threat and he was placed in segregation until released on parole.
23. As stated above, Mr Prasad’s criminal history includes convictions for six contraventions of apprehended domestic violence orders and three associated assaults. These are serious offences and the number of similar offences is a matter of concern. The most recent of these offences led to Mr Prasad being charged on 26 August 2009. Mr Prasad has been sentenced to more than 12 months imprisonment on one occasion – the sentence of 18 months on 11 March 2010 - but was released on parole after 8 months. Although his compliance with parole conditions in the past has been very poor, he had apparently been complying with his parole conditions at the time he was taken into immigration detention after two months in the community.
24. With regard to mitigating factors, Mr Reynolds, for Mr Prasad, drew attention to Dr Jacmon’s psychological assessment report dated 18 February 2011 and to this being the first time that Mr Prasad had been diagnosed as suffering from mental health problems, in particular, borderline personality disorder, depression and anxiety. Dr Jacmon said the essential feature of borderline personality disorder “is a pervasive pattern of instability of interpersonal relationships, self-image, and affects, and marked impulsivity that begins by early adulthood and is present in a variety of contexts.” Mr Prasad presented with seven of the diagnostic criteria for the disorder including impulsivity in at least two areas that are potentially self-damaging, namely substance abuse and reckless driving. Dr Jacmon said that Mr Prasad’s breach of court orders was also consistent with impulsivity. Dr Jacmon said that in his opinion, the disorders from which Mr Prasad suffers are the cause of his criminal activity and if the cause is treated, this should eliminate or at least markedly reduce the risk of his reoffending.
The risk that the conduct may be repeated
25. With regard to the risk that the conduct may be repeated, paragraph 10.1.2 of Direction No 41 requires that consideration be given to Mr Prasad’s previous general conduct and total criminal history and, in particular, to any recent history of convictions, evidence of rehabilitation and evidence as to whether he has breached any judicial orders including bail and parole orders.
26. The Immigration Report, while noting that Mr Prasad had “not participated in any programs aimed at addressing his criminogenic issues”, said his protection status and rating would have impeded this. Mr Prasad said there were no drug and alcohol courses available to him at Junee Correctional Centre. Instead, he undertook nine or ten Bible study courses by correspondence to help him become a better person and turn his life around. Although the courses did not deal with alcohol abuse, they made him think about this.
27. I have stated above that Mr Prasad’s record of complying with judicial orders has generally been poor. However, I note that he appears to have complied with the terms of his parole between when he was released on 4 November 2010 and when he was taken into immigration detention on 6 January 2011. Mr Prasad said with one exception he had not taken any drugs after he was detained for breach of parole on 26 August 2009. The exception was after he was taken into immigration detention at Villawood in January 2011 when he shared a “joint” with other detainees. He said he has also not drunk alcohol since being imprisoned in August 2009. His family all confirmed that they had not seen him drinking after his release from prison on 4 November 2010, including over the Christmas period.
28. Mr Prasad was asked about the direction given to him in June and July 2009 to attend drug and alcohol counselling. He said at that time, he still “didn’t take things too seriously”. There was no drug and alcohol counselling available to him in Junee Correctional Centre. After his release on parole, he had in December 2010 booked himself into a drug and alcohol counselling program at Ryde Hospital which was due to commence on 29 January 2011. This was a three‑month program requiring attendance on one day per week. He booked this through the Probation and Parole Service and was given verbal confirmation by telephone. He was unable to attend this because of his being taken into immigration detention. He has since sought treatment at Villawood and has attended two Alcoholics Anonymous (AA) sessions. He described these as eye opening. Mr Prasad said that while at Villawood, he has also attended two one and a half hour counselling sessions with departmental counsellors. These sessions are to see how he is going and to help him realise the effect of his past actions.
29. Mr Prasad described his attitude now as very different. He is very sorry for what he did in the past, which was wrong, and he takes full responsibility for his actions. He was very young and immature, abusing alcohol, and in a drugs environment. He was hospitalised on a number of occasions when intoxicated. With respect to the more recent offences involving domestic violence, he is ashamed of what he did and of his aggression. He was drinking and the group he was with put bad words into his brain and he got angry. However, this does not excuse his conduct. Even though his girlfriend’s brother was racist towards him, the appropriate response would have been to walk away: he said “violence is never an appropriate response to anything.” In his statutory declaration (undated but faxed to the Tribunal on 7 March 2011), Mr Prasad said if he is released into the community, he would like to volunteer to help out in church and youth groups to use his past as an example of taking the wrong steps in life and to encourage others not to make the same mistakes.
30. Mr Prasad said he wants to turn his life around and not make the mistakes he made in the past. When released on parole in November 2010, he was a better person and happier in himself. Previously, he never took his parents’ advice seriously and spent much of his time “hanging around with bad crowds” and partying. Now he is much more responsive and, since his release, he has spent a lot of time with his family, including with his little sister. He and his father are now like best friends and he listens to his father’s advice. Previously, he would never have taken his father seriously and would have been arguing with him constantly. Mr Prasad said his mother is very caring and supportive but she worries about him, to the extent that she collapsed at work recently and had to be taken to hospital. He has also become much closer to his younger sister – they go to the movies together and he helps her with her homework.
31. Mr Prasad said if he is released into the community, he will live with his parents and they have said they will provide him with food, accommodation, financial assistance and their love. He is ashamed of the impact of his past conduct on his family and is aware that they are currently very upset and distressed about his situation. Mr Prasad said he had full-time employment arranged with Visy Recycling and was due to start an induction program about the time that he was detained. A letter dated 16 February 2011 from Visy’s supervisor at Smithfield confirms this and that he is still willing to help Mr Prasad with a trial for the position of “sorter”.
32. Mr Prasad said until he saw Dr Jacmon he did not know he was suffering from a mental illness. Now that he has a diagnosis and a proposed treatment program, he wants to take the steps to start the program as soon as possible to help him become a better person. Dr Jacmon has said he will provide the proposed treatment but not at Villawood. Mr Prasad will need to attend Dr Jacmon’s Surry Hills premises.
33. As mentioned above, Dr Jacmon diagnosed Mr Prasad as suffering from borderline personality disorder, depression and anxiety and, at the time of his report, drug and alcohol abuse. He said:
Symptoms of borderline personality disorder (BPD) are markedly impairing Mr Prasad’s daily functioning and are likely to have been affecting him from adolescence. Coexisting depression and anxiety are worsening his distress and likely reflect life downturns including the failed relationships and time wasted in custody. At the time of at least his recent offences his functioning was further impaired by marijuana and alcohol abuse.
34. Dr Jacmon noted the connection between Mr Prasad’s condition and his impulsivity and destructive behaviours such as substance abuse. Alcohol abuse is consistently associated with violent behaviour. He noted that during the assessment “Mr Prasad expressed remorse over having harmed the victims and distressed his family”. Dr Jacmon said Mr Prasad’s disorders “need extensive and regular treatment to ameliorate distress, learn skills to cope with the instability in mood that BPD causes and to enable positive outcomes for the future.” Dr Jacmon therefore proposed a 12‑week treatment program. He noted Mr Prasad’s willingness to undergo treatment to address his disorders, the completion of which, with the support of his family, “should ameliorate the disorders and markedly reduce the probability that Mr Prasad re-offends and hence lead a lawful life in Australia.”
35. Dr Jacmon also gave telephone evidence at the hearing. He confirmed that if Mr Prasad completes the proposed treatment and has the support of his family, his chances of making a good recovery and leading a normal life are very good. He said the disorders have been the cause of his criminal activity and, for example, the breach of court orders is consistent with his impulsivity. If the disorders are treated, this will markedly reduce the risk of his reoffending. Mr Prasad indicated that he is keen to start treatment as soon as possible and he has good family support to complete the program which he could start on his release into the community. The 12‑week program will address alcohol abuse but Mr Prasad should also undertake other programs that specifically address this issue and that of anger management. After completion of the 12‑week program, Mr Prasad will still need “maintenance” sessions.
36. I also heard evidence from Mr Prasad’s parents, his younger brother and sister and other members of his family. Both his father and mother said that since being released from Junee Correctional Centre, their son has been a different person. His father said whereas previously his son did not listen to what his parents said, he is now more responsive, shows respect for others and appears to have “grown up”. His son is not drinking anymore and it is as if he is speaking a different language. He spends most of his time at home, helps around the house with the household chores and has established a good relationship with both his close family members and extended family.
37. Mr Prasad Senior said he and his son “are like good mates” and he now trusts his son. Whereas previously, he would never have given him a set of keys to their house, he has now done so. His son wants to get involved in working and Mr Prasad Senior has spoken with Dr Jacmon about his son starting the proposed treatment program. Mr Prasad Senior said he and his wife will provide their son with love and support, both emotional and financial, as well as food and accommodation through this period.
38. Mr Prasad’s brother said that he saw Mr Prasad about three times a week after his release from Junee. Previously, Mr Prasad used to go out a lot and his brother barely saw him when he visited his parents. His attitude has now changed, he is calmer and they can now have a conversation. He is not drinking alcohol anymore and did not drink any at all over the Christmas period. His brother said he has seen Mr Prasad helping out around the house including washing the dishes and putting on the laundry. His brother is aware of Dr Jacmon’s report and that Mr Prasad needs treatment. His brother will be there to support Mr Prasad in whatever way he can.
39. Mr Prasad’s brother’s wife said that since Mr Prasad’s release from Junee, he appears to be more mature, relaxed and easier to approach such that they have been able to have conversations. She has also not seen him drink any alcohol. Previously, he was always going off somewhere and she did not have a lot to do with him.
40. Mr Prasad’s younger sister, who is aged 16, said her brother seemed to have changed a lot since he was released from Junee. His temperament is much better: he is calm and works things through instead of yelling if he gets angry. They have formed a close relationship and he helps her with her chores and with her homework. Previously, he would hardly ever be at home, she would rarely see him and they would not talk.
41. Mr Prasad Senior’s sister’s partner said he had seen Mr Prasad on about six occasions after his release from Junee. Previously, Mr Prasad had a very poor attitude to his family and could on occasion get angry and aggressive. Since his release, Mr Prasad seems a “different character” and has “woken up to himself”: he is much warmer, more friendly and affectionate towards his family, and he is not drinking. He spends time with his family, does a few chores and had got himself a job before he was detained.
42. Mr Prasad’s cousin, who is a third year apprentice mechanic, said he noticed that Mr Prasad had changed a lot when he was released from prison. He is calmer, speaks better and is no longer aggressive as he used to be when he was drinking. The cousin has not, as he occasionally used to, seen Mr Prasad “hanging around the streets with a group of guys”. He seems to spend a lot of time at home. The cousin said he had seen Mr Prasad once at their local pub playing pool. He was not drinking and, after about an hour, he said he was going home.
43. While Ms Stone, for the Minister, submitted that the risk of Mr Prasad reoffending supports the cancellation of his visa, Mr Reynolds submitted that the evidence supports a finding that it is likely that he will not reoffend in the future. I am satisfied from the evidence that the risk of Mr Prasad reoffending is low. He has only very recently been diagnosed as suffering from borderline personality disorder, anxiety and depression, and it is Dr Jacmon’s opinion that it is these mental health problems that are the likely cause of his criminal activity.
44. In the past, Mr Prasad’s impulsivity seems to have been a significant factor in his misconduct together with his alcohol abuse. I accept Mr Prasad’s evidence that he has not drunk alcohol since August 2009 but is aware that he still needs treatment to deal with alcohol and substance abuse. Prior to his detention, he had taken steps to address this, booking into a three‑month program at Ryde Hospital. Mr Prasad also says that he is keen to undertake the treatment program proposed by Dr Jacmon, in which, importantly, he would be supported by his family. These steps, when considered in the context of what Mr Prasad’s and his family’s evidence suggests is his greater maturity, gives me confidence that he will engage with appropriate treatment if he is released into the community. I also note Mr Prasad’s evidence acknowledging the seriousness of his offending and that he now recognises that violence is never acceptable in any situation, even in response to provocation.
45. While Mr Prasad was only two months in the community after his release from Junee Correctional Centre before he was detained, his evidence and that of his family indicates that his conduct was exemplary during this period and that he is ashamed of his past misconduct, is remorseful for the hurt he has caused his victims and his family, and is committed to rehabilitation with the support of his family. I note that in this two‑month period, he managed to arrange trial employment and that such employment is still open to him. It is unfortunate that he was detained at the time that he was about to commence the induction program for the trial employment and that he was unable to participate in the three‑month program at Ryde Hospital. It would seem, however, that these opportunities are still open to him and, with the additional insight afforded by Dr Jacmon’s diagnosis, there seems a very good chance that Mr Prasad will not engage in the criminal conduct in which he has been involved in the past. I am therefore satisfied that Mr Prasad poses a minimal risk to the Australian community.
whether a minor on beginning to live in australia
46. The second primary consideration relevant in Mr Prasad’s case relates to his being a minor when he first commenced residence in Australia. Direction No 41, paragraph 10.2(1) states:
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.
47. Mr Prasad arrived with his parents and three siblings and began living in Australia in July 2002, when he was aged 16. Apart from two and a half months spent in Fiji in 2004, he has lived in Australia for just over eight years. I accept his evidence and that of his family at the hearing that all his close family are in Australia. Their evidence indicates strong family ties and a high level of family support.
48. Thus, I am satisfied that Mr Prasad has close ties with the Australian community as a result of his having lived here for more than 8 years and because of the presence of his family here. This primary consideration therefore weighs against cancellation of Mr Prasad’s visa.
length of time ordinarily resident
49. The third primary consideration relevant in Mr Prasad’s case - the length of time he has been ordinarily resident in Australia – is further explained in paragraph 10.3(1) of Direction No 41. This states that “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”.
50. Mr Prasad was first charged (with larceny – less than $2,000) on 11 August 2005 when he was aged 19 and after he had been resident in Australia for three years. Because of this relatively short period, this consideration should not be treated as a consideration in his favour. Rather it should be regarded as a neutral factor: Re Puafisi and Minister for Immigration and Citizenship [2009] AATA 689, at [39] to [41].
OTHER CONSIDERATIONS
51. As noted above, Direction No 41 states that ‘other’ considerations, where relevant, must be taken into account but, generally, should be given less weight than ‘primary’ considerations. Relevant ‘other’ considerations in Mr Prasad’s case specifically referred to in the Direction are his family ties and the nature and extent of his relationships with those in the Australian community, his age, his health, his links with Fiji, the hardship that may be experienced by both Mr Prasad and his immediate family members in Australia, his level of education, and whether he has been formally warned in the past that his visa might be cancelled because of his criminal conduct.
52. The oral evidence at the hearing and the statements and letters of support from Mr Prasad’s family members clearly shows that he has strong family ties in Australia and I accept that he has no real connection to the Fijian community. All Mr Prasad’s immediate family including his two brothers and their families and his sister are in Australia. The Tribunal also heard evidence from Mr Prasad Senior’s sister’s family, and from his cousin and his wife, all of whom live in Sydney. In total, nine family members gave evidence at the hearing, their evidence being broadly consistent, and I was impressed by the level of support afforded to one another.
53. While Mr Prasad has some family members in Fiji, he has had no contact with them and they would be unlikely to either be either able to or be willing to provide Mr Prasad with support if he returns there. According to Mr Prasad Senior, his father’s (i.e. the applicant’s grandfather’s) action in forcing Mr Prasad Senior’s family to vacate their house in Fiji was a principal reason for him and his family migrating to Australia. Mr Prasad Senior no longer communicates with his father and he said his father would not be prepared to provide assistance for Mr Prasad. Mr Prasad Senior’s brother lives with his family of five children in the same house as the father and is also not in a position to offer Mr Prasad any support. Mr Prasad Senior said his sister in Fiji has difficulty even supporting herself and lives in government owned accommodation. He last spoke with his brother and sister there 10 or 11 months ago. He would not contact either of them to help if his son has to return to Fiji. Mrs Prasad’s elderly mother is in poor health and lives on a remote island where she is a small farmer. She lives in a small house and does not have the capacity to support her grandson. Mrs Prasad said she sends her mother money from Australia for her support.
54. I accept that that if Mr Prasad is returned to Fiji this will cause both him and his immediate family significant hardship by reason of their separation. The evidence of family members is that Mr Prasad’s parents, and particularly his mother, would be “heartbroken” if he has to return to Fiji. The worry of the possibility of this happening has undoubtedly caused them significant distress including probably being a factor in Mrs Prasad’s elevated blood pressure which led to her collapsing at work and being taken to hospital. All the other family members spoke of the effect both on Mrs Prasad and on Mr Prasad Senior, whom his sister’s partner reportedly had seen crying and distraught over the stress they are currently suffering. If Mr Prasad is returned to Fiji, this will also cause distress to Mr Prasad’s younger sister, who is in Year 11 at high school. She said she is having troubling concentrating at school and, according to Mr Prasad Senior’s sister, she left home and went to a friend’s house about a month ago when she could no longer deal with the stress.
55. Mr Prasad’s family spoke of the standard of living in Fiji being significantly lower than that in Australia and of the difficulty of finding employment there. Mr Prasad’s parents said they would assist their son there financially if necessary and would probably be able to visit him there when their circumstances permit. I accept that given the ready availability of email and telephone, it would be possible for Mr Prasad to remain in contact with his family by these means.
56. While Mr Prasad is relatively young – 24 years of age - the availability of appropriate medical treatment is also a relevant matter given Dr Jacmon’s evidence of Mr Prasad’s need for psychological treatment and counselling, and also because of Mr Prasad’s need for further surgery on his left wrist. Mr Prasad has a yet unresolved break in his left wrist following a work accident in January 2008 for which he has received workers compensation. Initial surgery on this wrist was unsuccessful and he is to have further surgery and a bone graft in the hope of resolving the problem. Whilst none of the family members were able to provide reliable evidence about the availability of medical services in Fiji, it seems likely that the standard and availability of such services will not be as good as in a wealthier country such as Australia.
57. Finally, I note there is evidence of Mr Prasad having been sent a formal warning from the Department by letter dated 16 January 2009, when he was aged 22. Whether he actually received this is unclear. Mr Prasad said that he has no recollection of the letter and, when asked, nor did his father. Although the departmental file includes an acknowledgement, allegedly by Mr Prasad, of receipt of the letter, Mr Prasad gave evidence that the signature is not his and the date on the receipt is 4 January 2009, 12 days before the date of the letter. Mr Prasad Senior said the signature was also not his.
CONCLUSION
58. Weighing up the relevant ‘primary considerations’, I am satisfied that despite the seriousness of Mr Prasad’s criminal record including offences associated with domestic violence, the risk of his reoffending is low and, he poses a minimal threat to the protection of the Australian community. There is a good chance that with the appropriate treatment already identified and given his greater maturity, commitment and the high level of family support, Mr Prasad will achieve complete rehabilitation in the Australian community. With regard to the second primary consideration, the fact that he began living in Australia as a minor favours his visa not being cancelled, although this consideration is generally outweighed by any need to protect the Australian community. The third primary consideration, having regard to the length of time between his becoming resident in Australia and his first misconduct, is, as I have said, a neutral factor.
59. With regard to the ‘other considerations’, I accept that Mr Prasad’s return to Fiji would cause significant hardship to both him and his close knit family in Australia. I also note that if Mr Prasad has to return to Fiji, he has no immediate means of support there and may have difficulty accessing the appropriate medical treatment that he requires.
60. Having had regard to both the primary and other considerations, my overall conclusion is that the discretion in s 501(2) of the Act should be exercised in Mr Prasad’s favour and that his visa should not be cancelled.
DECISION
61. The decision under review is set aside and a decision substituted that the discretion in s 501(2) of the Act should be exercised in Mr Prasad’s favour so that his visa is not cancelled.
I certify that the 61 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President.
Signed: ………[sgd]..................................................................
A Veness, Associate
Dates of Hearing: 10 and 11 March 2011
Date of Decision: 22 March 2011
Applicant counsel: Mr P Reynolds
Applicant representative: Parish Patience Immigration Lawyers
Respondent representative: Ms M Stone, DLA Phillips Fox
0
1
1