Rakesh Reddy and Minister for Immigration and Border Protection

[2013] AATA 706

[2013] AATA 706

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/3437
Re	Rakesh Reddy
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Mr Dean Letcher, QC, Senior Member
Date	3 October 2013
Place	Sydney

The decision under review is affirmed.

..................[sgd]......................................................

Mr Dean Letcher, QC, Senior Member

CATCHWORDS

MIGRATION – Class TY Subclass 444 Special Category (Temporary) visa – cancellation – character test – substantial criminal record – primary and other considerations – decision affirmed

LEGISLATION

Migration Act 1958 ss 500, 501

SECONDARY MATERIALS

Direction No.55 – Visa refusal and cancellation under s501

REASONS FOR DECISION

Mr Dean Letcher, QC, Senior Member

3 October 2013

1. The applicant was the holder of a Class TY Subclass 444 Special Category (Temporary) visa which the delegate of the Minister determined to cancel on 21 June 2013 on the grounds that the applicant does not pass the character test under s 501(6)(a) of the Migration Act 1958 (“the Act”). The applicant now seeks review of that decision by the Tribunal pursuant to s 500(1)(b) of the Act.

   LEGISLATIVE BACKGROUND

2. Under s 501(2) of the Act the delegate of the Minister may cancel a visa if he reasonably suspects that the holder does not pass the character test and the holder does not satisfy the delegate that he does pass the test.

3. A person does not pass the character test if the person has a “substantial criminal record”: s 501(6)(a). And that phrase is defined in s 501(7) as including a term of imprisonment of 12 months or more or two or more terms of imprisonment where the total of the terms is 2 years or more.

4. If the delegate finds that the visa holder does not pass the character test then he retains a discretion whether or not to cancel the visa. The delegate is bound by “Direction No. 55” made under the Act to take into account a number of matters set out in the Direction. The Tribunal stands in the shoes of the delegate exercising the same discretion and similarly is obliged to observe the same principles of the Direction.

   LEGAL BACKGROUND

5. The applicant was born in Fiji on 2 May 1975, in 1977 he moved with his mother to New Zealand and on 22 March 1987 he arrived in Australia then aged 11 years. Apart from some generally short absences he has remained here ever since.

6. In 1991 at age 15 the applicant was found guilty of unlicensed driving and negligent driving and was fined. He did not pay the fine and was later sentenced to 24 hours’ imprisonment in default. Then, in rapid succession the applicant was convicted of stealing, drink driving, dangerous driving and fare evasion by 1992, before he reached 18 years of age. The extent of the applicant’s criminal record and his sentences can be seen from the following table:

Date

Offence/Sentence Details

25 January 1991

Unlicensed driving and driving negligently, sentenced to 24 hours’ imprisonment for fine default.

18 August 1992

Stealing, sentenced to 2 days’ imprisonment for fine default.

20 August 1992

Driving with mid range prescribed concentration of alcohol and in a dangerous manner and fined $250 on each charge.

12 November 1992

Avoid fare on railway, sentenced to 24 hours’ imprisonment for fine default.

29 March 1995

Drive under influence causing grievous bodily harm and sentenced to 8 months’ imprisonment with a non-parole period of 6 months. Fail to appear, sentenced to 1 month’ imprisonment. Mr Reddy admitted to prison.

28 September 1995

Mr Reddy released from prison.

12 March 1996

Travel on rail/bus with incorrect ticket, sentenced to 48 hours’ imprisonment for fine default.

19 June 1996

Drive higher range PCA and drive whilst disqualified and sentenced to 9 months’ and 6 months’ imprisonment, respectively. Drive uninsured and carry offensive implement, sentenced to 3 days’ and 4 days’ imprisonment respectively for fine default. Mr Reddy admitted to prison.

18 November 1998

Use offensive language in public place, fined $200.

2 August 1999

Travel or attempt to travel on train without paying fare and fail to comply with direction, fined $100 on each charge.

9 August 1996

Drive higher range PCA and whilst disqualified and sentenced to 3 months’ imprisonment.

18 September 1996

Mr Reddy released from prison.

9 August 1999

Convicted of failing to appear, fined $1000 with a 2 year good behaviour bond imposed.

27 April 2001

Drive whilst disqualified and sentenced to 12 months’ periodic detention. Driver/rider state false name or address, fined $400. Exceed speed limit, fined $200.

2 May 2001

Mr Reddy admitted to prison (periodic detention). Periodic detention order revoked 12 September 2001.

19 November 2001

Possessing prohibited drug and bring/introduce drug and syringe into detention centre and sentenced to 4 months’ home detention.

22 November 2001

Mr Reddy released from prison.

20 April 2004

Two charges of common assault, fined $400 and sentenced to a 12 month good behaviour bond.

8 September 2005

Contravene apprehended domestic violence order resulting in a 2 year good behaviour bond and destroy or damage property and fined $200.

19 September 2005

Mr Reddy admitted to prison where he remains now.

24 May 2006

Robbery armed with offensive weapon cause wounding/grievous bodily harm and sentenced on 2 August 2006.

28 July 2006

Sexual intercourse with a person over 14 and under 16 (seven charges), aggravated indecent assault – offender in company, and common assault and sentenced on 2 August 2006.

2 August 2006

Mr Reddy sentenced to an aggregate sentence of 10 years, 4 months commencing 18 September 2005 comprised as follows:

·           Rob armed and wound – sentenced to 9 years, 4 months with a 7 year non-parole period;

·           Assault – sentenced to 16 months, with a 12 month non-parole period;

·           Indecent assault under 16 years – sentenced to 4 years, with a 3 year non-parole period;

·           Sexual intercourse under 16 – sentenced to 5 years, 4 months with a 4 year non-parole period; and

·           Sexual intercourse person under 16 (6 charges) – sentenced to 6 years with a 4 year, 6 month non-parole period.

1. On the face of the judicial record the applicant has been sentenced to terms of imprisonment for:

   (a)a number of driving/alcohol related offences together totalling more than two years;

   (b)five separate sentences for robbery, assault, indecent assault and sexual intercourse with a woman under 16 years – each of more than 12 months.

2. It is quite clear that the applicant does not pass the character test under the Act.

   FACTUAL BACKGROUND

3. The applicant’s father died in an accident when he was two years old which led to his mother taking him and other siblings to New Zealand and then to Australia. The applicant left high school in Sydney at age 15 and he was seldom out of serious trouble thereafter with alcohol, and drug use, prominent. In 1994 he fled Australia for ten months following a serious motor vehicle accident in which he drove while intoxicated, collided with a telegraph pole and one passenger suffered serious chest injuries while the other lost a leg. The applicant was charged, failed to appear on the due date in court, but later returned and was jailed. For a time he was “DJ Ricky” working in the restaurant/nightclub owned by his mother. He had other short periods of employment, but use of cannabis, amphetamine, heroin and alcohol dominated his life and required money from crime to support his “habit”.

4. The applicant married in 1996 and has a daughter, S, born two years later, but he has not seen his wife since 2005, was divorced soon after his current jail term commenced and has seen his daughter only when his mother brought her on jail visits, the last in 2010. The girl’s mother broke all contact with the applicant and recently the applicant requested that no contact be made with his ex-wife by parole officers preparing reports because she would be “a very bias person”. It was the ex-wife and his daughter who were the subjects of his two assault convictions in 2004.

5. The applicant has a very supportive family in Australia, but they were not fully aware of his addiction problems or the extent of his law-breaking activities before his current jail term. Seven of his family gave evidence before the Tribunal.

6. On 2 August 2006 Sweeeney DCJ sentenced the applicant to 10 years and four months jail on the robbery, assault and sexual offences shown in the table. The applicant had pleaded not guilty in respect of all those offences but was convicted by jury verdicts.

7. As to the robbery offences, the judge found that D, a woman close to the applicant, had invited a Mr Sharma to a motel room rented by the applicant. When he entered the room, the applicant and a co-offender demanded his wallet, threatened him with a knife or cleaver and the applicant struck Sharma with the weapon. This caused the victim to attempt to escape in the course of which he cut himself severely on a broken window.

8. As to the sexual offences, in December 2004 the applicant was aged 29 years and the girl the subject of the offences was aged 14. Most of the incidents occurred at a flat shared by the same woman. D, the applicant and the girl. She had run away from home, knew the applicant from his family’s nightclub and participated in the offences after smoking cannabis on one occasion and taking Valium from the applicant on another. The judge found that “there was persistence amounting to duress and violence, albeit at the lower end of the scale of violence, accompanying those occasions of sexual intercourse when [the girl] was initially unwilling.” It is not necessary to detail the incidents except to say that the girl was treated in a degrading manner and the judge concluded that the applicant “seemed unable or unwilling to control his sexual impulses”. The judge found that:

   As to whether any contrition or remorse has been shown, there has been none… On oath in these proceedings, he denied the robbery offences, in defiance of the jury’s verdict, and he also denied the offences involving [the girl] … [He] was assessed as being in a moderate to high risk category for recidivism, that is, committing sexual offences again. This was particularly in view of his abuse of alcohol and illegal drugs and also because of what was described as a disregard for social mores and poor compliance with supervision that are of concern. That, in my view, is what is demonstrated by [the applicant’s] criminal history, a disregard for social mores, particularly most recently…

9. Since commencing his sentence, the applicant has been disciplined some 26 times for breaches of jail rules, including failing drug tests and fighting. That record has improved greatly since 2012, but he was charged with alleged fighting as recently as September 2012.

   EVIDENCE BEFORE THE TRIBUNAL

10. The applicant told the Tribunal:

    I’m not denying any of the facts. I’m coming to the point in my life where I’m acknowledging crimes I’ve committed … eight years in jail has really changed my outlook on life … I’ve come to realise that alcohol and drug use lead to bad choices … addiction is a battle every day – that’s not an excuse but it’s a reason … I always had stuff in front of me to make that change but I went the wrong way.

11. The applicant said that to enter CUBIT, a prison program for sex offenders, one had to have a C1 minimum security classification, but he had reached that classification only in July 2013. He was offered CUBIT, but refused it then. He had accepted entry now and had commenced CUBIT only six days before the Tribunal hearing. He told the Tribunal that his reason for refusal was that he knew his parole hearing was imminent and that if he entered CUBIT his parole application would be refused and postponed for a year until CUBIT was completed. He had hoped to leave jail before that time believing that he could be deported at the end of his non-parole period on 18 September 2013.

12. He was asked why, then, he had written as his reason for refusing to participate in CUBIT on 11 July 2013: “I have always maintained my innocence in this matter, I wish to participate in the denial course which was referred to me by my parole officer…”. He did not have a ready explanation except that he did not wish to be known in the jail population as a sex offender, but he could not really reconcile the two different explanations.

13. The applicant said that he had not really tried to avoid drugs in jail and had failed many drug tests until early 2011 when he decided to try and abstain and he was later put on methadone maintenance treatment.

14. He said that he would like to be released to live in Australia so that he could find his daughter and get their relationship back: “family is strong in our culture”. He said that he was confident that he could keep away from alcohol and drugs and he wanted to live with and care for his ill mother: “I believe I have to take care of her … she was always taking care of me”.

15. In cross-examination, he denied that his sole reason for accepting CUBIT was that he realised that was the only way he would be given parole. He was asked what effect he thought his sexual offences may have had on the girl to which he replied: “I don’t know where she is now and I don’t really care … she was no angel”. He agreed that he had an uncle, aunt and three cousins in New Zealand (and it later emerged that the uncle had arranged employment for him when he went to New Zealand after his dangerous driving charge in 1994). He agreed that he had not supported his mother in the past. When asked how he believed his daughter would benefit from a relationship with him he said: “Like any father and daughter … the biggest factor is protection … I want to be the dad I should have been from the start … all I can say is I [will] try to make up for lost time”.

16. Seven members of the applicant’s family gave statements and evidence on his behalf. They were all of good character and anxious to assist and support the applicant if he remained in Australia. They had arranged accommodation for him with family and several had discussed the future when visiting the applicant in jail. Suraj Krishna is a younger cousin with experience as a teacher and youth worker and he assisted the applicant in the hearing. He said he believed he had noticed a change of character during the applicant’s most recent term of imprisonment. He had discussed with the applicant the benefits of living in the family home with work, sport and social activities available in the area. He believed the applicant understood the importance of an active approach and the need for positive steps. He did not identify any particular agreed plans of the applicant to seek any particular work or activities. Suraj and his family offer a support network which he agreed had also been available in the years before the applicant was sentenced, but which he had been unable to use to avoid crime and addiction. The family witnesses tended to blame “bad company” and “the wrong crowd” for the applicant’s problems. None of the family had any personal or expert knowledge of drug addiction or criminal behaviour. They had not been aware of the seriousness of the applicant’s criminal actions in the ten years before his final arrest in 2005.

17. The applicant’s mother Kanta Krishna gave evidence by telephone from Fiji. She has been diagnosed with myelodysplastic syndrome which may lead on to leukaemia with a poor prognosis. She is in the process of liquidating her assets and returning to Australia where she hopes she will be joined by the applicant on release. Kanta has lived mainly in New Zealand and Fiji with brief visits to Australia in the last five years. She has tried to maintain contact with the applicant’s daughter despite the ex-wife’s reluctance. While the applicant said in his evidence that he was not aware of his daughter’s whereabouts but that his cousin Suraj had discovered that she might attend a particular school, in fact, the applicant’s mother had recently met the daughter at the school, spoken to her and given her a message for the ex-wife. Curiously, the applicant was unaware of this until his mother gave that evidence.

18. The respondent relied upon a large volume of Corrective Services and police records and the sentencing judge’s remarks. The pre-sentence assessment in 2006 placed the applicant in the “Moderate/High risk category” for sexual offence recidivism and in assessments of February and May 2013 the applicant still continued to deny having sex with the girl the subject of his charges alleging that she and her mother had “set [him] up”.

    PRIMARY CONSIDERATIONS

    PROTECTION OF THE AUSTRALIAN COMMUNITY

19. Protection of the Australian community from future criminal conduct is one of the primary considerations when deciding whether a visa should be cancelled. The Direction requires the Tribunal to consider both the nature and seriousness of the person’s conduct to date and the risk to the Australian community should the person commit further offences or engage in other serious conduct: clause 9.1(2).

    The nature and seriousness of the conduct

20. Clause 9.1.1 of the Direction identifies factors the Tribunal must have regard to in considering the nature and seriousness of the person’s criminal offending or other conduct to date. The most relevant factors are addressed below.

    Violent and/or sexual crimes are viewed very seriously

21. The applicant received substantial sentences for violent crimes of assault and robbery while his multiple sexual offences also involved elements of coercion and duress. The community would regard these offences as extremely serious.

    Crimes against vulnerable members of the community are serious

22. A homeless 14 year old girl affected by cannabis or other drugs is highly vulnerable yet the applicant appeared to have little or no empathy for her or understanding that the laws exist to protect such people against their own lack of judgment and maturity. He committed multiple sexual offences over a period of weeks

    Sentence imposed by the court

23. The sentence of ten years and four months was substantial as it involved a number of offences on a background of breaches of good behaviour bonds, the lack of effect of short jail terms, failure by the applicant to alter his drug-taking and no demonstrated remorse.

    Frequency of offending and any trend of increasing seriousness

24. From about 15 until over 25 years of age the applicant was convicted regularly, almost yearly, of offences involving irresponsibility and alcohol abuse, but in 2004 he was convicted of assault and then the far more serious robbery and sexual offences followed. He denied all charges but then in jail committed 26 disciplinary offences. The frequency of offences before imprisonment was maintained and the trend worsened until he was stopped by jail.

    Cumulative effect of repeat offending

25. The applicant was estranged from his wife and child, was unable to maintain employment and had little contact with his family during the many years his life was dominated by drugs and crime. He has no social or community connections left. His family are very loyal but seem to know very little of his life before jail.

26. These five factors all weigh heavily against the applicant because they indicate the gravity of the charges, the inability or unwillingness of the applicant to change, the increasing seriousness of his conduct and the fact that his recent convictions are for the types of offence which are not easily tolerated by the Australian community.

    The risk to the Australian community

27. A basic question is whether the likely risk of future harm from the non-citizen is unacceptable. In this case, the violence and the inability to restrain his sexual impulses shown in the offences, together with the assessed risk of re-offending make the prospect of future harm unacceptable. The applicant’s drug addiction may have been a major cause of his crimes, but that is not a problem proved to have been solved. The applicant may feel that he has matured recently, but he was almost 30 years old at the time he committed the most serious offences.

1. This consideration counts in favour of cancelling the visa.

   STRENGTH, DURATION AND NATURE OF TIES TO AUSTRALIA

2. The applicant came to Australia at age 11 and has a family including mother, sister, aunts and cousins in the Sydney area. He has fewer and more distant relatives in New Zealand and Fiji. He has no current employment, social or community connections in Australia outside his co-offenders and family. He has not made any significant positive contribution to Australian society. As the sentencing judge said, he has shown “a disregard for social mores”, meaning that he has not fitted in to Australian society or been in tune with Australian values of respect for law and for the rights of others. He has been a persistent offender against Australian law, commencing within a few years of first arriving. He has not advanced any plans for employment or rehabilitation activities if he were not deported. He has no current connection with his daughter.

3. The applicant has a very loyal family, but he did not seem to be influenced by them in the years before his current sentence of imprisonment and my impression is that their connection to him is much stronger than his feelings towards them. This consideration counts moderately in the applicant’s favour.

   BEST INTEREST OF MINOR CHILD

4. Another primary consideration is the best interests of the only minor in this matter, the applicant’s daughter, S, now aged 15 years. It is generally considered beneficial for children to be raised by both of their natural parents unless there are disqualifying factors. I am directed to make a determination whether the cancellation of the visa is or is not in the best interests of this child.

5. The applicant has said that he lived with S and her mother for most of S’s first seven years, but he also said in his evidence that he was “not a good husband, cheated on her, drinking, going out at weekends” and that the couple separated from late 1998 to mid-1999. It is impossible to make a confident conclusion about the extent of the fathering by the applicant. When S was almost three years old, the applicant commenced serving a term of periodic detention which upon revocation of the periodic detention order appears to have led to full time incarceration, then four months’ home detention and when S was five he assaulted both her mother and S, but was released on a bond. A year later he contravened a Domestic Apprehended Violence Order and received a further bond, but in September 2005 he was arrested and has been in jail ever since. S was taken by the applicant’s mother to visit her father in jail periodically until 2010, but has not seen him since and has not spoken by telephone since 2011. S has almost always lived with her mother and now also with her mother’s new husband. There is no indication of S’s opinion about seeing her father. There are several letters from S directed to the applicant, but they look to be the product of a child of six or seven years only. The applicant says that he was unable to meet or telephone his daughter when his ex-wife broke contact and his family made unsuccessful efforts “through social media” to locate S. In July 2013 the applicant’s mother found S at her local high school. While recognising that it is difficult for a prisoner to make such inquiries, I was not persuaded that the applicant had made persistent attempts to regain contact with his daughter until his mother did so shortly before this hearing. I have doubts about the veracity of the applicant’s statements of his feelings about his daughter.

6. As a general rule it is accepted to be in the best interest of a minor to have direct contact with each parent and to understand their place in an extended family. My view is that it is in the best interests of S for the visa to be cancelled. I do not believe that the applicant in the past played a significant role in the child’s upbringing, or that he is capable of being a valuable role model in the future. S has almost always been cared for by her mother who has re-married. The presence of the applicant in Australia could be a negative or disruptive influence for a girl who seems to be established in the care of her mother.

7. I note that the applicant’s sexual offences involved a girl who was then about the same age as S is now. The applicant’s lack of remorse, empathy and understanding of his victim was quite marked and might indicate that he would have great difficulty in relating to his teenage daughter. I realise that cancellation of the visa would greatly reduce the opportunities of future contact between father and daughter, but I have severe doubts that, if the applicant were to remain in Australia, there would emerge a close relationship between father and daughter. The prospects of the applicant being returned to jail cannot be ignored and nor can the probability that he would be unable to maintain contact by reason of drug and alcohol use.

8. This consideration counts in favour of cancelling the visa.

   STRENGTH, DURATION AND NATURE OF TIES TO AUSTRALIA

9. The applicant came to Australia at age 11 and has a family including mother, sister, aunts and cousins in the Sydney area. He has fewer and more distant relatives in New Zealand and Fiji. He has no employment, social or community connections outside his co-offenders and family. He has not made any significant positive contribution to Australian society. As the sentencing judge said, he has shown “a disregard for social mores”, meaning that he has not fitted in to Australian society or been in tune with Australian values of respect for law and for the rights of others. He has been a persistent offender against Australian law. He has not advanced any plans for employment or rehabilitation activities if he were not deported. He has no current connection with his daughter.

10. The applicant has a very loyal family but he did not seem to be influenced by them in the years before his sentence and my impression is that their connection to him is much stronger than his feelings towards them. This factor counts moderately in the applicant’s favour.

    INTERNATIONAL NON-REFOULEMENT OBLIGATIONS

11. There is no evidence of any such obligation on Australia there being no punitive, persecutory or discriminatory consequences if the applicant returned to New Zealand or Fiji.

    OTHER CONSIDERATIONS

12. I have taken into account other considerations, as relevant (set out in clause 10 of the Direction). There would be a significant effect on the applicant’s immediate family in Australia if the visa were cancelled. I think that the family would be disappointed and distressed that they had been unable to keep the applicant in Australia. The applicant’s mother believes that she should stay in Australia for medical treatment and hoped that her son would be staying with her. I do not believe that the family appreciate that there is a significant risk that the applicant will re-offend, that he will not be guided and directed by them and that he may well not be available to care for his mother.

13. I see no significant impediment to the applicant being removed to New Zealand by reason of his age (38), language or health. He has lost one eye and he has a back condition but those factors would affect his employability and social relationships equally wherever he was. He would have access to any care he needs in New Zealand. He would have some support from his extended family but less family support in New Zealand. That support did not appear to be a solution to his problems in the past.

    FINDINGS AND CONCLUSION

14. The applicant fails the character test in s 501(6) of the Act. He has a record of violent and sexual offences against a long background of alcohol and drug addiction. He has not demonstrated rehabilitation or contrition for his offences and has been reluctant to engage in a sexual offender program until very recently. He was assessed as “moderate to high risk” for sexual recidivism. He continued drug use in jail with numerous failed drug tests until he was placed on methadone maintenance in 2012. He has had numerous infractions of jail discipline. There is a significant risk of re-offending. Considering the nature of his offences, I believe the Australian community would find the risk of new offences unacceptable.

15. The applicant’s ties to Australia mainly consist of his family connections and his residence here for 26 of his 38 years. However, nine of those years he has spent in jail and many of the rest have seen a continual pattern of law-breaking misconduct at odds with Australian values. Nevertheless, I have found this consideration moderately to be in the applicant’s favour.

16. The best interests of his child, S, have been assessed as a primary consideration and I find that the cancellation of the visa is in the best interests of the child. That judgment is reinforced by serious concern that the actual prospects of a healthy father-child relationship are not bright given the past history of that relationship even before imprisonment and the future risk of re-offending.

17. The applicant poses an unacceptable risk of future harm to the Australian community. This consideration outweighs any primary or other consideration which may favour a decision not to cancel his visa.

18. The decision under review is affirmed.

I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of Mr Dean Letcher, QC, Senior Member

...............[sgd].........................................................

Associate

Dated 3 October 2013

Dates of hearing	12 and 13 September 2013
Applicant	In person
Solicitors for the Respondent	Ms J Cumming, Clayton Utz