Re Durani and Minister for Immigration and Citizenship
[2013] AATA 273
[2013] AATA 273
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/0642
Re
Suhail Durani
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop Date 6 May 2013 Place Perth The decision under review is set aside and, in substitution therefor, it is decided that the applicant’s Class VE Subclass 175 (Skilled–Independent) visa not be cancelled under s 501(2) of the Migration Act 1958 (Cth).
............................[sgd]......................................
S D Hotop, Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – visa – cancellation of visa – applicant a citizen of India – applicant arrived in Australia in December 2006 aged 31 years – applicant convicted of sexual offences in June 2011 – applicant sentenced to 2 years 4 months imprisonment – applicant does not pass character test – discretion to cancel visa – primary considerations and other relevant considerations on balance weigh against cancellation of visa – minimal risk of applicant committing serious offence in future – applicant's risk of future offending not unacceptable – preferable decision is that visa not be cancelled – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 501(2)
Direction no 55 – Visa refusal and cancellation under s 501
REASONS FOR DECISION
Deputy President S D Hotop
6 May 2013
Introduction
Suhail Durani (“the applicant”) has applied to the Tribunal for review of a decision of a delegate of the Minister for Immigration and Citizenship (“the respondent”), dated 5 February 2013, cancelling his Class VE Subclass 175 (Skilled–Independent) visa (“the visa”). The delegate’s decision was made under s 501(2) of the Migration Act 1958 (Cth) (“the Act”).
The Factual Background
The applicant was born in June 1975 in India and is a citizen of India.
The applicant first arrived in Australia on 6 December 2006 as the holder of a Class VE Subclass 422 (Medical Practitioner) visa, a temporary visa which authorised him to travel to, and remain, in Australia. He subsequently applied for the visa and it was granted to him on 13 July 2009, allowing him to reside permanently in Australia.
Since his first arrival in Australia the applicant has been absent from Australia for four periods, namely, from 1 to 24 November 2007, from 3 April to 27 May 2008, from 23 March to 23 April 2009, and from 11 to 17 July 2009.
On 10 June 2011 the applicant was convicted in the District Court of Western Australia, following a trial before Fenbury DCJ sitting alone without a jury, of two counts of sexual penetration without consent, and three counts of unlawful and indecent assault.
On 13 July 2011 the applicant was sentenced by Fenbury DCJ to 2 years and 4 months’ imprisonment on each of the two counts of sexual penetration without consent, to 6 months’ imprisonment on each of two counts of unlawful and indecent assault, and to 4 months’ imprisonment on the third count of unlawful and indecent assault. Fenbury DCJ ordered that all of the sentences be concurrent with each other, resulting in a total effective sentence of 2 years and 4 months’ imprisonment which was to be served immediately. Fenbury DCJ also ordered that the applicant be eligible for parole.
The applicant appealed to the Court of Appeal (WA) against the abovementioned convictions but his appeal was dismissed on 30 August 2012: Durani v The State of Western Australia [2012] WASCA 172.
On 5 February 2013 a delegate of the respondent cancelled the visa under s 501(2) of the Act.
The Relevant Legislation
Section 501(2) of the Act provides:
“ The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.”
The “character test” is defined in s 501(6) of the Act which specifies various alternative circumstances in which a person does not pass the “character test” within the meaning of that section. In the present case, the relevant circumstance is that specified in para (a) of s 501(6), namely, “the person has a substantial criminal record (as defined by subsection (7))”. Section 501(7) specifies five alternative circumstances in which, for the purposes of the “character test”, a person has a “substantial criminal record”. In the present case, the relevant circumstance is that specified in para (c) of s 501(7), namely, “the person has been sentenced to a term of imprisonment of 12 months or more”.
The Ministerial Direction
In reviewing the delegate’s decision in this matter pursuant to s 500 of the Act, the Tribunal is required, by s 499(2A) of the Act, to comply with a direction given by the respondent under s 499(1) of the Act. The relevant direction, as presently in force, namely, Direction no 55 – Visa refusal and cancellation under s 501 (“the Direction”), was given by the respondent on 28 July 2012 and commenced on 1 September 2012.
Section 1 of the Direction includes (in para 6) a Preamble which contains (inter alia) “general guidance” for decision-makers acting under s 501 of the Act in the following terms:
“ 6.2 General Guidance
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
…
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizens [sic] visa under section 501. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B of this Direction.”
The principles referred to in para 6.2 are set out in para 6.3 as follows:
“ 6.3 Principles
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(4)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(6)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.”
Section 2 of the Direction, which is headed “Exercising the Discretion”, commences as follows:
“ 7 How to exercise the discretion
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
(a)must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; and
(b)is required to determine whether the risk of future harm by a non-citizen is unacceptable. This requires a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community.
8Taking the relevant considerations into account
(1) Decision-makers must take into account the primary and other considerations relevant to the individual case, noting that there are differing considerations for visa holders and visa applicants as articulated in Parts A and B. Separating the considerations for visa holders and visa applicants recognises that persons holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3) Both primary and other considerations may weigh in favour of, or against, refusal or cancellation of the visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.”
Part A (comprising paras 9 and 10) then refers to the “primary considerations” and “other considerations” which, where relevant, must be taken into account by a decision-maker in deciding whether to cancel a visa under s 501(2) of the Act. Those considerations will be relevantly referred to in detail later in these reasons.
The Evidence
The evidence before the Tribunal comprised:
·the “G Documents” (G1–G46, pp 1–562) lodged by the respondent on 27 February 2013 (Exhibit R1);
·bundle of supplementary G Documents lodged by the respondent on 28 February 2013 (Exhibit R2);
·Respondent’s Supplementary Documents (S1–S11, pp 1–87) filed and served on 12 April 2013 (Exhibit R3);
·the applicant’s witness statement, dated 15 March 2013, filed and served on 15 March 2013 (Exhibit A1);
·Statement of Falaq Naz Durani, dated 15 April 2013, filed and served on 17 April 2013 (Exhibit A2);
·Witness Statement of Mihitha Ariyapperuma, dated 15 April 2013, filed and served on 17 April 2013 (Exhibit A3);
·Statement of Barry Walters, dated 22 March 2013, filed and served on 17 April 2013 (Exhibit A4);
·Witness Statement of Krishnamurthi Somers, dated 17 April 2013, filed and served on 17 April 2013 (Exhibit A5);
·Statement of Michael McComish, dated 22 March 2013, filed and served on 17 April 2013 (Exhibit A6);
·Witness Statement of Zohra Rehman, dated 15 April 2013, filed and served on 17 April 2013 (Exhibit A7);
·Statement of Suresh Rajan, dated 15 April 2013, filed and served on 17 April 2013 (Exhibit A8);
·Witness Statement of Mohamed Ibrahim, dated 14 April 2013, filed and served on 17 April 2013 (Exhibit A9);
·Witness Statement of Mujeeb Rehman, dated 15 April 2013, filed and served on 17 April 2013 (Exhibit A10);
·Witness Statement of Antonius Steven, dated 28 March 2013 filed and served on 17 April 2013 (Exhibit A11);
·Affidavit of Shahid Shakur, sworn on 17 April 2013, filed and served on 17 April 2013 (Exhibit A12); and
·the oral evidence of the applicant and of each of the following witnesses called by the applicant:
– Falaq Naz Durani;
– Dr Mihitha Ariyapperuma;
– Dr Barry Walters; and
– Dr Krishnamurthi Somers.
The Sentencing Remarks of Fenbury DCJ
When sentencing the applicant on 13 July 2011, for the offences referred to in paragraph 5 above, Fenbury DCJ made the following remarks:
“ FENBURY DCJ: Now, you were convicted after trial on 10 June of two counts of sexual penetration without consent and three counts of unlawful and indecent assault. The maximum penalty provided for sexual penetration without consent in the Criminal Code is 14 years’ imprisonment. The maximum penalty provided for unlawful and indecent assault is five years’ imprisonment.
The circumstances of your offending, the material facts, have been extensively dealt with by me when I delivered the verdict in this matter, and they appear at the transcript, especially at page 813 and following. However, some reference is appropriate in summary form today.
You were a doctor working at Royal Perth Hospital, being a registrar in the Acute Assessment Unit. On Saturday, 20 February 2010, you were on duty when you were paged to attend and admit the complainant, who was waiting in an Emergency Department cubicle with a mild ketoacidosis. She was a 19-year-old girl, a type 1 diabetic, who had become ill through personal neglect of her insulin regime. She also had a variety of other health and personal problems. The complainant was unwell and vulnerable, and in my view, this must have been apparent to you.
In the Emergency Department cubicle or waiting area, as it was described, under the guise of a legitimate medical examination, that is listening for heart and/or breathing sounds in the complainant’s chest whilst holding your stethoscope on her skin near her breasts, you gently gripped each of her nipples in turn with two of your fingers. You did this in a scissor-like action. You said nothing. She said nothing.
Between two and three hours later in the IDU ward in a single bed room where the complainant had been lodged followed [sic] admission, emboldened by her lack of protest and complaint about what you earlier did in the Emergency Department cubicle, again under the guise of legitimate medical examination, without gloves, you fondled and cupped the complainant’s breasts on two separate occasions and inserted your finger or fingers into her vagina on two separate occasions.
I have already mentioned what conversation occurred. The complainant accepted the examination was medically necessary and appropriate, although she felt uncomfortable about aspects of it. The complainant only realised you were seeking sexual gratification when you tried to kiss her. She immediately protested. You left in a hurry. She made a complaint within 5 minutes after pressing the buzzer to summon the nurse on duty.
The complainant was not hurt physically. You were not violent. By reference to section 319(2)(a) of the Criminal Code, the sexual penetrations did not occur with the complainant’s consent, as defined. By that, I mean that although she permitted you to penetrate her vagina with your finger, her consent was obtained by deceit or fraudulent means, I think. You led her to believe you needed to digitally penetrate her vagina for legitimate medical reasons. That is not a consent freely and voluntarily given when the purpose of the penetration was sexual gratification.
Two significant features of the case are the vulnerability of the complainant at the time and the nature of the breach of trust involved in the offending. Your conduct in pretending to professionally examine and then taking sexual advantage of a sick and vulnerable young women [sic], seeking urgent medical treatment, was quite despicable. To breach the trust that sick, young female patients bestow on those they go to for treatment and care is serious. It is self-evidently important that sick people be able to trust that emergency or other health carers will not take advantage of them for their own sexual gratification when they seek help and comfort whilst ill and subject themselves to physical and medical examination.
The community expects that any health professional, public or private, who has proven to have offended in those circumstances be dealt with so as to deter others and to preserve the integrity of the assumptions upon which the health system operates. One assumption is that if you are young and female with an urgent health issue, you can attend at an emergency department, unaccompanied, and not be concerned about being sexually assaulted.
Turning to your personal case, you are a 35-year-old medical practitioner, married with a young child. You come from India. You have been in Australia for about three years. You have no previous convictions whatsoever. The personal consequences of this conviction are obviously catastrophic for you. I take that into account to the extent that I can. You pleaded not guilty to this matter. This is not an aggravating factor, but it cannot be said that you are remorseful.
The only mitigating factors that I can identify in the case are that you are a first offender and of previous good character. As to that, I have received and read a number of references, and I shall briefly mention those. I have a reference from Dr K J Warr, who is a consultant nephrologist, medical direction [sic] of the Medical Specialities Division of Royal Perth Hospital. He speaks highly of you and expresses his disappointment with the verdict, to pick up his words.
Dr Antonius Steven, medical registrar, currently advanced lung registrar, Royal Perth Hospital. Dr BNJ Walters, who is adjunct professor of medicine, University of Notre Dame, clinical associate professor of obstetric medicine. Dr Adel Ekladious, who is consultant physician, internal medicine and herpetology, Royal Perth Hospital, clinical associate professor University of Western Australia. Mohamed Ibrahim, advanced lung registrar, Royal Perth Hospital. Dr Mujeeb Rehman.
I’ve also been provided with a list of 11 people who are prepared to be contacted by telephone for personal reference. It’s plain that you were very well regarded by your colleagues in the medical profession. I’ve got no reason to doubt that you were very good at what you did, that you were a good doctor and practised your profession honourably previously.
My attention has been drawn to various legal authorities mentioned in the written submissions. I am also aware of Grubisic’s case (2007) WASCA 147 handed down six days ago on 7 July. I have read those authorities and familiarise [sic] myself with the sorts of sentences imposed for offending involving digital vaginal penetration. Of course, the circumstances of cases vary enormously.
The offence of sexual penetration without consent covers the field of sexual behaviours that involve any sexual penetration whatsoever. Obviously, there are very many types of sexual penetration. Digital vaginal sexual penetration is one example of a sexual penetration, and there are of course other types which are regarded more seriously. Nevertheless, digital vaginal sexual penetration is serious.
In my view, a sentence of imprisonment is required. I conclude this is a serious example of digital sexual penetration for the reason that I have attempted to articulate. In my view, the following sentences would be appropriate.
For count 1, unlawful indecent assault, four months’ imprisonment.
Count 2, unlawful and indecent assault, six months’ imprisonment.
Count 3, sexual penetration without consent, two years, four months’ imprisonment.
Count 4, unlawful and indecent assault, six months’ imprisonment.
Count 5, sexual penetration without consent, two years, four months’ imprisonment.
I turn to the question of whether the sentences or some of them should be cumulative. The prosecutor has indicated that concurrency might be ‘practical’ in the circumstances although there was a period of some hours between the commission of count 1 and the other counts. In my view, after you committed the offence in count 1 where you opportunistically but deliberately touched both the complainant’s nipples while using your stethoscope, upon realising the complainant had made no protest, and emboldened thereby, you later committed the offences in counts 2 to 5 inclusive.
I cannot say you set out in count 1 to see whether she objected, but I have no doubt the fact she didn’t was a factor in your mind later when you committed the offences in counts 2 to 5 inclusive. That would justify some accumulation of the sentences. In spite of this, however, having regard to the prosecutor’s submission, I order that all the sentences be concurrent with each other.
I turn to the question of suspension. On the one hand, for the reason that I have identified, these offences are too serious for suspension to be considered. The need for deterrence, both general and personal, is too important and could not be adequately affected [sic] unless the term was ordered to be immediately served.
On the other hand, immediate imprisonment will cause great hardship to you and your wife and child. Along with your liberty, you stand to lose your livelihood and family home. Your wife would have to battle on without a husband in a place where she has no family. Your son would only have limited access to his father for the next while.
These events are severe consequences for brief wrongdoing. However, many who suffer conviction for offences that deserve imprisonment would suffer similar hardship. The loss of profession to a professional man in such circumstances is to be expected. You committed these offences in the purported exercise of your profession.
I feel for your family and especially the young boy, who have both been present throughout these proceedings, but the hardship caused by immediate imprisonment, in my view, is not so exceptional as to require departure from what would normally be the sentence warranted for this offending. The sentence of imprisonment should be served immediately. I make an order for eligibility for parole. Starting date will be today’s date.” (Exhibit R1, G7)
The Applicant’s Evidence
The applicant tendered in evidence his witness statement, dated 15 March 2013, and he confirmed that its contents are true and correct. That statement is as follows:
“1. I, Suhail Ahmad Khan Durani, Medical Practitioner, am currently residing in immigration detention at the International Detention Centre (Immigration), Perth Domestic Airport.
2.I was born in Kashmir, India [in] June 1975. I come from Muslim Kashmiri ethnicity.
3.I completed my primary and secondary education in Kashmir. I obtained my MBBS degree from the University of Jammu, Kashmir, India in 2003.
4.From 23 April 2002 to 22 April 2003 I completed my mandatory internship at the Government Medical College Srinagar, India. My internship required rotations through various specialities which also included 8 weeks rotation in obstetrics & gynaecology. I successfully completed my 8 weeks rotational internship at the LD Hospital for Women, Srinagar; which is a very busy hospital and the only hospital for women in Kashmir. My job requirements ranged from looking after female patients in the wards to assisting with deliveries of babies in the delivery suite. I was often rostered for after hours care of patients throughout my rotation.
5.My patients were both young and old with varied gynaecological problems and intimate examination was a part of their ongoing assessment. My duties also included after hours care and I used to look after around 30-odd patients in the ward on my own and conduct examinations both general and intimate as part of my routine clinical requirement to assess patients’ progress. During my rotation, I was never questioned about the technique of my clinical examinations and or any concern was raised by any patient or staff [sic]. Annexed hereto and marked as ‘SAKD-1’ to ‘SAKD-14’ are the copies my professional certificates including my degree of Bachelor of Medicine and Bachelor of Surgery and Internship certificates; which were awarded and or I [sic] issued to me in India.
6.It is globally accepted that many innocent Muslims of Kashmiri ethnicity have been killed in Kashmir in the past, that many have been crippled and that discriminatory and racist policies have caused enormous suffering. And it is also a known fact that Kashmiri Muslims are subjected to policies that violate the most basic freedoms and human rights. Post 9/11 safety concerns among Muslim Kashmiri were further heightened; and by mid 2000 I for personal safety reasons decided to move overseas and to pursue my professional advancement there. I feared, and as there was no guarantee; that being an ethnic Kashmiri I could be arbitrarily detained and/or physically harmed by the police and/or paramilitary forces. I went to United Kingdom in January 2005 for further studies and to gain experience in research projects.
7.I passed United Kingdom’s Professional and Linguistic Assessments Board (PLAB) examination at my first attempt in the year 2005.
8.From 2005 to 2006 I worked across many noted NHS institutions in the United Kingdom, as a Senior House Officer (SHO), mainly in the speciality of Accident and Emergency. As the SHO, Accident and Emergency, I used to perform my duties both as a team member with other doctors and as well as on my own, independently, examining all types of patients; young and old, male and female and children. There was never any complaint of any sort against my performance or professional ethical standards during my two years of working in UK. Annexed hereto and marked as ‘SAKD-15’ to ‘SAKD-26’ are the copies my [sic] professional certificates including my Certificate of Full Registration as a Medical Practitioner with the General Medical Council of the United Kingdom and employment records issued to me in the United Kingdom between 2005 and 2006.
9.I moved to Perth, Australia in December 2006 when I was selected as a Resident Medical Officer in the Department of Internal Medicine at the Royal Perth Hospital (RPH). The opportunities for higher studies were better here. Equally, I did not wish to return to Kashmir because I continued to fear that I would experience persecution on the basis of my Kashmiri ethnicity.
10.My hard work, honesty and dedication led to positive results when I was accepted as a trainee registrar of Royal Australasian College of Physicians in 2009. I was involved in many audits and case presentations. All my seniors and colleagues appreciated my work ethics and subsequently I was nominated for Goatcher's best resident of year award in 2007 at Royal Perth Hospital.
11.As a Resident Medical Officer I worked across many specialities both surgical and medical at RPH. I did many night shifts as a part of my job profile and on many occasions during my night shift, I have been called to see female patients especially young in the ward without the support of any chaperone.
12.Further, during my rotation as Resident Medical Officer in Plastic Surgery at RPH, I worked in Plastic Dressing Clinic (PDC) four times per week. My role was to follow-up patients after surgery. Among the patient population were female patients who would come for follow-up after breast reconstruction or augmentation surgeries. Their assessment included breast examination apart from general examination. I can recall many occasions where I have assessed female patients in PDC without a chaperone. It was a usual practice of my colleagues also as limited staff availability and high turnover of the clinic makes it practically difficult to have a chaperone available all the time. There was never any concern raised either by staff or patient against my practice of medicine.
13.As a medical registrar, I again rotated through many specialities to gain broad experience. I worked at King Edward Memorial Hospital (KEMH), Perth in the radiation oncology clinic. The patient population was all female and mostly young. Most of the cases were post radiation therapy following surgery for their vaginal or uterine cancers. My role was to follow-up their progress which included vaginal examination and at times performs [sic] a simple clinic based procedure of vaginal vault dilatation. Although a nurse was available during consultations but on many occasions I would be on my own with the patient in the clinic room. The reason was that only two nurses were available for four clinic rooms and they used to rotate between the rooms. The most difficult cases were seen by the consultants and often a nurse was held up in their clinic room leaving little flexibility for the other nurse to perform full chaperone duties. Annexed hereto and marked as ‘SAKD-27’ to ‘SAKD-45A’ are the copies my professional certificates issued in Australia including the Certificate [SAKD-45] issued by the Medical Board of Australia and the Statement of Service [SAKD-45A] issued by the Royal Perth Hospital dated 14 March 2013 confirming my registration as a Medical Practitioner with General Registration for the period 18.10.2010 to 30.09.2011 and my employment records at RPH since 21.08.2006 to 10.06.2011; respectively.
14.To the best of my knowledge I can say during my stay at the RPH it had no policy to for [sic] a mandatory chaperone to be present during examination whether general or intimate. I am however aware that the RPH introduced a policy in this regard which came into effect from April 2010.
15.Though a migrant however in Australia I have always felt at home. Within few months of my coming to Australia all concerns which I used to have all the time about my personal and family safety in Kashmir were allayed. Within a short span of time we felt reasonably integrated into Australian way of life; its people, honesty, discipline and trusting and warmly friendly. I never have felt threatened and always considered my rights are respected and protected.
16.I also considered myself very fortunate for being selected as Trainee Registrar and offered an opportunity to become a Specialist Physician in recognition of my professional conduct and performance. It was also a great acknowledgment of my works ethics and of my professional performance by my senior colleagues and mentors at RPH.
17.Unfortunately, my life was shattered and dream came crashing down on the 21st of February 2010 when I was called by the RPH Director Clinical Services, namely, Dr James Trotter, who told me that I have been accused of sexually assaulting a young female patient in the emergency department on the 20th of February 2010.
18.Whilst I continue to maintain my innocence, of the charges, I acknowledge that I was found guilty of the two counts by the District Court of WA and that my appeal to the WA Court of Appeal was dismissed.
19.On or about the 10 June 2011, I was sentenced to 2 years and 4 months of imprisonment. I spent nearly four and half months in Hakea Prison before I was moved to Casuarina Prison.
20.On the 3 August 2011, I was assessed at Hakea Prison as minimum security prisoner and was to be transferred to a minimum security prison. Since my appeal in the WA Court of Appeal was still pending I spent another five months in a high security prison, namely Casuarina, before I was shifted to Karnet Prison farm, a minimum security prison, on 24 April 2012.
21.At Hakea Prison I held a respected position as I was deemed trustworthy enough to work in the administration area. The ‘Immigration Report’ [G26] at page 184 states
‘4.2 Prisoner behaviour and attitude – General
Durani has only been in prison for a short period of time. He is a very quiet man who is very respectful to all who he has contact with. He currently resides in Unit 4 at Hakea Prison and is not a management problem.
4.3Prisoner behaviour and attitude – Work/Education
Durani hold [sic] down a respected position in the prison as he is deemed trustworthy enough to work in the Administration area. He is respectful to all personnel and completes his work to a very high standard. No management issue with this offender.
5 Program Participation
5.1 Comment on prisoner’s program participation
Include program name, status and any issues if applicable
Durani has adamantly denied committing above offences. Durani has acknowledged medically examining the victim on the day of the alleged offending, however, has denied gripping the victim’s nipples and has further denied digitally penetrating the victim’s vagina. Durani claimed he does not consume alcohol and has never used illicit substances, hence there is no evidence to suggest the link between substance use and the alleged offending.
………… .
6 Other Relevant Information
6.1Are there any other factors, yet to be covered which must be considered, including prisoner’s? [sic] submission?
Yes
Comments: Durani was very emotional during the assessment and claims he is hoping to win the appeal. RPH continued his employment while on bail, however were forced to terminate it when he was found guilty.
He had full support from staff and RPH during his trial and is hoping to be able to resume his medical career.
His wife and child reside here in Perth and he wishes to remain in Australia despite what has happened.
6.2Please attach the Criminal History
No (if unavailable order through system or provide reason)
Comments: No previous records.’22.The Individual Management Plan (Recommended) at Casuarina Prison on 12 January 2012 states
‘2.4 Prisoner Behaviour
Durani currently resides in Unit 6 (Protection) at Casuarina Prison under a Standard Supervision Regime. Unit staff report that Durani is a self sufficient prisoner that does not draw negative attention to himself and appears to socialise well with the majority of his fellow prisoners. Durani is compliant to all instructions and unit routines, respectful to unit staff and not viewed as a management problem.
Durani is currently employed in the Kitchen at Casuarina prison. He is regarded as being an above average worker who works and completes all tasks with minimal supervision. Durani is respectful in his dealings with staff and as such, he is not viewed as a management problem. Durani has not been subject to any disciplinary convictions during this current sentence.’
Annexed hereto and marked as ‘SAKD-46’ is a copy of the Individual Management Plan (Recommended) for me at the Casuarina Prison dated 12 January 2012.
23.The Individual Management Plan (Recommended) for me in its Review [G35] at page 315 notes:
‘2.2 Security Rating
Minimum
2.3 Placement
Karnet
Comments: It is recommended that Durani remain minimum security at Karnet Prison Farm in accordance with current approval and Classification Review Score.
2.4Prisoner Behaviour
Durani arrived at Karnet on 24/04/2012 and resides in Unit four where his [sic] is viewed as an easily managed prisoner who does not draw attention to himself, is polite in his dealings with staff and has no conflict with other prisoners.
There are no problems in the workplace where Durani is employed in Recreation. According to his Supervisor, he is a polite prisoner who assists with the prisoners passive recreation activities and lately has been assisting in the Library’.
24.My appeal to the WA Court of Appeal was heard on 2 March 2012 and was dismissed on 30 August 2012. Though I was eligible for parole on 12 September 2012, however the Parole Board of WA denied me parole on 13 August 2012 giving reason that ‘I have not met treatment needs’. I considered the Parole Board’s decision to deny my parole was premature at that time.
25.I was initially assessed at Hakea Prison on 3 August 2011 to be eligible for a sex offenders treatment programme known as Denier's. The Department of Corrective Services did not provide me any programme and on my enquiry I was told by the prison authority that due to ‘my appeal class status’ I am not eligible to participate in any programme. I was assessed to be eligible for certain programme initially by the Prison authority but the Department of Corrective Services failed to provide it to me. Being concerned, I did raise this issue since I suspected that it could impact on my parole prospects, however I was told by the Department of Sentence Planning that the Parole Board was to defer its decision until the judgement from the WA Court of Appeal was delivered
26.Nonetheless the Parole Board made its decision even before the fate of my appeal was decided by the Court of Appeals [sic]. My case was re-assessed again and, according to the report which was compiled on 20 September 2012 by the Department of Corrective Services, I was deemed as a low risk offender, which excluded my participation in any treatment programme. There were no other treatment requirements imposed on me by operation of the report.
27.I applied for a review of the Parole Board decision on 18 October 2012 which was granted on 2 November 2012.
28.A parole decision was granted on 4 February 2013 in my favour and I was informed later that day by fax that 6 February 2013 was the date set as my release day. I was informed by prison officials that my release time was to be 8:30 am. I advised the prison officials that my wife would come to pick me up, whose details I also furnished to them.
29.The prison officials also informed me that though they are aware of my immigration status as a ‘person of interest’, they had not received any information about me from the Department of Immigration and Citizenship (DIAC) whatsoever.
30.On the morning of 6 February 2013 at about 7:45am I was called by Mr Clements, Superintendent of Karnet Prison Farm, who informed me that the prison had just received a fax from DIAC stating that my visa had been cancelled. He also informed me that an official from DIAC would come around 9:00am to pick me up and transfer me to the detention centre.
31.I immediately made a phone call to my wife from Superintendent's office informing her about the DIAC’s unfortunate and sudden decision to cancel my visa. By that time my wife had almost reached the prison gate along with my 4 year old son.
32.I was not allowed to see my wife and son who had travelled more than 50 km to pick me up. They returned disappointed, especially, so I believe, my son who could not understand what had happened, compounded by the difficulty for my wife in explaining to him why his father could not come home that morning.
33.Coming from a disturbed and underdeveloped place I value, respect and cherish the opportunities that Australia has provided to me so far and it can offer in future. I am determined to pursue my goals and the amount of support received by public, in general and by medical fraternity, in particular, through media and personal letters makes me believe that there is still hope for me.
34.I further most respectfully state that if I am deported by the Department of Immigration and Citizenship I perceive that it will have profoundly devastating effects on my life and my 4 year old son and my wife:
(i)First and foremost, it will disintegrate our close knit, loving family where my 4 year old son asks me on every visit when I will be able to come back home & play with him again. Although he doesn't fully understand my absence in his life at this stage but with each passing year he will become more aware and my absence will affect his psychological development to a large extent and rob him of fatherly love and care when he need it most. My departure will leave a huge gap in his life that will be difficult to fill in.
(ii)Deportation will rob me of any chance of getting my life back together. There are no avenues of employment for me in India; there is an age limit of 33 years for applying jobs [sic]. There is no social security system like Centrelink where the government can help unemployed people.
(iii)With no means of income, if deported, I will be unable to support myself and my family who at the moment are supported by Centrelink payments. I am concerned that my loss of income will severely affect the standard of living of my family especially my son.
(iv)If deported there is every likelihood that I will be socially outcast in a conservative society, where convictions of sexual nature are not tolerated. It will be next to impossible to adjust in such a society where I will have no social, psychological, emotional or financial support.
(v)In particular following the 2010 rebellion in Kashmir there are hundreds of thousand Kashmiri now jobless living in fear and insecurity. The Economist in its article on ‘Kashmir’s troubles’ published on 29 December 2010 noted
‘So Kashmir is left to smoulder, with dire consequences for its citizens. A visit to Srinagar's psychiatric hospital shows throngs of patients, crowding around its overworked chief consultant. They relate a dismal roll-call of anxiety, stress, depression, alcohol and opiate addictions, child abuse and suicides. As Dr Mushtaq Margoob takes a break to munch a chapati and sip milky tea, he talks of Kashmir as a broken society. Some patients become destructive, he says, describing a mother who watched her son shot dead on the street and who then went on to burn down her own home and that of her neighbours.
The most damaged, he concludes, are the youngest. ‘We see a collective anger, an aggressive, traumatised generation’, he says. The head of a think-tank talks of 600,000 young, educated, Kashmiri adults who are now jobless, waiting for some sort of guidance. Religious and political leaders fret that their youngest followers, teenagers, excited by the stone-pelters, are increasingly attracted by more radical ideas’.
Annexed hereto and marked as ‘SAKD-47’ is a copy of an article titled Kashmir’s troubles published in the Economist on 29 December 2010.
35.I ask that this review application be considered by the Honourable Tribunal with compassion and the DIAC decision to cancel my visa be set aside accordingly.
36.In conclusion I stress that I am a loving father and a husband and have much to continue to offer to the Australian community.” (Exhibit A1)
The applicant also confirmed that the contents of a “Personal Details Form”, dated 8 October 2012, which he completed and provided to the Department of Immigration and Citizenship (“DIAC”) at its request, are true and correct. In that form the applicant stated that (inter alia):
·he is currently married to Falaq Durani (having been married to her on 22 July 2007);
·they have a child who was born in February 2009;
·the nationality of his wife and child is Australian;
·his wife and child reside in suburban Perth and he will be living with them following his release;
·he was employed as a doctor at Royal Perth Hospital from December 2006 (when he arrived in Australia) to July 2011. (Exhibit R1, G 12)
In cross-examination the applicant gave evidence as follows:
·he was born in Srinagar, Kashmir;
·both his parents live in Srinagar;
·he has a sister who is married, with 3 young children, and who lives in Patna, Bihar, India;
·he has no other siblings;
·he finished working as a doctor in the United Kingdom in July 2006;
·he then went to India, arriving in Delhi on 17 July 2006, and stayed with his parents in Srinagar;
·he had been appointed as a Resident Medical Officer at Royal Perth Hospital with effect from 21 August 2006 but he was not able to commence working in that position at that time because of a delay in obtaining an Australian visa;
·he continued to stay with his parents in Srinagar until December 2006 when his visa was issued;
·he did not work in the period July– December 2006 while staying with his parents in Srinagar;
·he arrived in Australia on 6 December 2006 and commenced working as a Resident Medical Officer at Royal Perth Hospital;
·he and his wife were married on 22 July 2007 in India, although he was not physically present at the ceremony;
·he visited India from 3 April 2008 to 27 May 2008 during which their wedding reception took place;
·his wife first arrived in Australia on 27 May 2008 with him;
·his wife went to India in November 2008 where she lived with his parents and her parents in Srinagar, and their son was born there in February 2009;
·he went to India in March 2009 and he and his wife returned to Australia with their son in April 2009;
·he had concerns about his wife returning to Kashmir during her pregnancy because of the troubles there but he was working in Australia and they had no extended family members in Australia, whereas she had family support in Srinagar;
·following the relevant complaint made against him in February 2010 he gave an undertaking to the Medical Board of Western Australia, dated 16 March 2010, that he would “not consult with, examine or treat any female patients without a chaperone present” until the subject matter of the complaint had been resolved (Exhibit R3, S1);
·following his being formally charged with the relevant offences on 24 March 2010 he gave a further undertaking to the Medical Board, dated 7 April 2010 that he would (inter alia) “only perform administrative duties at Royal Perth Hospital” and “have no direct clinical contact with patients” (Exhibit R3, S2);
·subsequently the Medical Board agreed to his providing an undertaking, dated 7 May 2010, that he would “have a chaperone present for all physical examinations on all female patients” until the subject matter of the abovementioned complaint had been resolved (Exhibit R3, S3);
·following his conviction of the relevant offences on 10 June 2011 he gave an undertaking to the Australian Health Practitioner Regulation Agency, dated 16 June 2011, “neither to be employed as a Medical Practitioner nor to work as a Medical Practitioner in any capacity until such time as the Medical Board of Australia has had the opportunity to fully investigate the matter” (Exhibit R3, S4);
·he still has a strong desire to practise medicine and believes that there is still a chance that he will be able to do so;
·he continues to have much to offer to the Australian community, predominantly by exercising his skills as a medical practitioner but also, in conjunction with his medical practice, by engaging in social work with relevant organisations;
·because of his convictions he has “negligible” chance of being employed as a doctor in India – he has a better chance of being so employed in Australia because of the knowledge of his medical colleagues regarding his former practice as a doctor here.
The applicant acknowledged that he had not expressed remorse for the offences of which he was convicted, or apologised to the victim, but he explained that that was because he maintained his innocence of those offences. He was referred to the relevant Victim Impact Statement dated 3 June 2011 (Exhibit R3, S5) and he acknowledged that the various impacts set out therein are serious but he reiterated that he was innocent of the relevant offences.
The applicant confirmed that, because he had continued to maintain his innocence following his conviction and incarceration, he was not eligible to participate in the Department of Corrective Services Sex Offending Medium Program. As regards the Sex Offending Denier’s Program referred to in para 25 of his abovementioned witness statement, he said that he would have participated in that program had it been offered to him.
In re-examination the applicant was questioned about his employment duties at Royal Perth Hospital following the complaint against him in February 2010 and the various undertakings (referred to in paragraph 17 above) which he gave to the Medical Board. He said that he continued to perform clinical duties, but with a chaperone present in accordance with his undertaking of 16 March 2010, until he was formally charged on 24 March 2010. He said that he was then “taken off” clinical duties but was retained as an employee and performed only administrative duties (in accordance with his undertaking of 7 April 2010) for about 4 weeks. He said that, following communication by the Director of Clinical services at the hospital with the Medical Board, he was permitted to return to clinical duties in the presence of a chaperone in accordance with his undertaking of 7 May 2010 and he performed those duties up until his conviction in June 2010.
In response to questions from the Tribunal regarding the chance of his, in the future, committing a serious offence of the kind of which he was convicted on 10 June 2010 or any other serious offence which might endanger or cause harm to the Australian community, the applicant said that he believed that the chance of that occurring is “negligible” or “zero”. He further added, by way of explanation of that belief, that he is a law-abiding person and has never committed a crime or been involved in anything which is unlawful. He further added that he is an intelligent person and that he “cannot see how [he] can involve [himself] in any act which is unlawful”.
The Evidence of Falaq Naz Durani
Mrs Durani confirmed that she had signed a statement, dated 15 April 2013, for the purpose of this proceeding and that its contents are true. Mrs Durani’s statement is as follows:
“1. I make this statement from my own personal knowledge save where otherwise indicated.
2.I am a qualified Dentist from India and I obtained my Bachelor of Dental Surgery (BDS) qualification from the Buddha Institute of Dental Sciences & Hospital, Patna, Bihar, India in 2002.
3.I have known Suhail Durani (Suhail) since my childhood as he is also my cousin and we grew up together in Kashmir. We got married on 22 July 2007.
4.I have been living in Perth since May 2008 and I became an Australian citizen in October 2012. Suhail and I have a son, [S], who was born [in] February 2009. [S] was born in India and we both acquired Australian citizenship on 3 October 2012.
5.Since I am an overseas qualified dentist I need to pass the Australian Dental Council (ADC) examination to work as a dentist in Australia. The examination is an important and major exercise which needs serious study. It is at least a 3 year project (on what I have seen and read it can be done in that time with regular and consistent study). The sitting of the examination itself is very expensive – currently ADC net fees for the written and clinical examinations are set at $8335.00. The English exam OET needs to be passed before applying for the ADC and which expires after every 2 years, fees of which is $587.80. To pass ADC exams it is necessary to do an Orientation Training Course which is done in Melbourne and costs around $25,000.
6.I was in the middle of my preparation for the ADC examination when our lives got stuck [sic] by a massive blow when Suhail was charged with, and subsequently convicted of, five criminal offences. This changed everything and turned my life upside down.
7.From the time in early June 2011 that Suhail ceased working as a doctor as a consequence of the charges, there was a drastic change in our family income. The reality was that I had to commence paid employment so that we could survive. I did so by commencing in my current position as a Dental Assistant at the Life Care Dental Surgery from 12th Sep 2011.
8.I also had to sell our valuable assets belonging to Suhail and me, namely, home located at … East Cannington and Volkswagen Tiguan 2009.
9.I continue to work as a part time Dental Assistant to pay the rent and bills and to sustain [S] and myself. The following is a summary of my current income and outgoings:
Income
- Wages: $2300.00 (approx) per month before tax
-Centrelink: $455.84 Fortnightly (Family Tax A&B + Rent Assistance)
Outgoings
- Rent $420.00 per week
- Utilities $100 (approx) per week
- Food $100 (approx) per week
- Other including Transport $80 per week
- Child Care for [S] $50 per week.
10.I remember well the events of late February 2010. At the time Suhail’s parents were visiting Perth in connection with [S’s] first birthday. Suhail told me about the Royal Perth Hospital incident after he came to know from Director Clinical Services RPH that a patient had lodged a complaint, and he himself was not aware of the nature of the allegations till he was formally charged by police.
11.Suhail also at the time informed me that the Director of Clinical Services, Royal Perth Hospital advised him not to speak about or discuss the incident with anyone. To date I have not come to terms to accept that my husband has been found guilty of the charges though I recognise he has been convicted by a court of law.
12.On 10 June 2011, the day judgment was delivered by Judge Fenbury of the WA District Court, that came as a tremendous shock not only to me but also to many his [sic] colleagues at the Royal Perth Hospital who told me that they were very upset at the outcome. I know this because at the time when Suhail was charged and also on the day the judgment was delivered, a number of his colleagues visited our home and expressed their utter disbelief and sympathy to me. I was deeply shattered and I was myself in absolute disbelief.
13.Suhail’s colleagues at the RPH even collected money for his appeal to the WA Court of Appeal. This whole event, including the trial and appeal processes, has been like a death blow to us. My husband was put in jail and separated from [S] and me. [S] and I were left alone without any family support apart from each other.
14.[S] frequently expresses to me his feelings about his father’s absence, which is mostly because he feels his family is not complete like other kids who have both their dad and mum around, to play with them to spend time with them. He feels the absence of his father around him and tries to cover it up in front of other people by screaming with happiness that ‘my dad is on phone, he is calling, he is my dad.’
15.If I get angry with [S] for one reason or another, frequently the first thing he says is ‘I want my daddy back’. Every day before going to sleep he asks me ‘are we going to see daddy tomorrow’ and in the morning he says ‘when will daddy come home I miss my daddy’ and every time I give him excuses, that his father still hasn’t finished his job and is coming home soon. He keeps a share for his dad out of his own chocolates and the like which he shows to me. When my husband’s friend [sic] comes to visit us along with their kids, he plays less with their kids and loves to play more with their dad, which shows to me that he is missing having a father figure in his life.
16.On the morning of 6 February 2013 I left home about 7:30 am with [S] to pick up Suhail from the Karnet Prison Farm as he was scheduled to be released that day from his detention at 8:30am. I was almost near the Prison when Suhail rang me to advise that he could not be released because his visa has been cancelled by the Department of Immigration. He also said he will be shifted to an immigration detention centre but that he could only learn about that from the Immigration Officer who was to be coming at 9am. Suhail asked me to go back home as the Prison author17 Aprility would not let me meet with him that morning.
17.It was devastating news which emotionally drained me. I feared that our loving family is going to break up with no prospect of being reunited and that [S] will be separated from his father permanently. [S] was eagerly waiting for his father to come home on 6 February 2013 as I had told him that was going to occur. Of course he does not understand the actual situation. He has his own imagination that his father is busy with some work and he as well was very excited that now his dad is coming home.
18.When we turned back home without my husband with us, [S] repeatedly asked me ‘why are we going back, why didn’t daddy come with us to our home’ to which I had no answer but to say that he is going to some other place to work for a few more days, then he will come back home. My heart was crying all the way back home and tears were rolling down my face as once again our hopes were shattered and it seemed to me like someone was playing with our emotions.
19.[S] is very excited whenever he goes to see his father and does not want to leave him. It is emotionally very distressing for me to pull him away from the arms of his father every time I meet my husband. [S] often cries when it is time to say goodbye to his father, which makes things very hard for me as well.
20.I am afraid if my husband does not come back home it will be particularly psychologically traumatic for us. Besides that I will be totally left alone here. If my husband will be permitted to stay here, it will not only unite our loving family but he can also support us financially. His working in Australia will help the family significantly and I will be able to pass my ADC examination and work as a dentist so that my qualification will not go wasted.
21.I am in a state of despair at the moment and wonder what I will do if my husband is deported to India where he will find it extremely difficult to face the conservative society there. For me it would be like ending my life.
22.Our son and I will not be able to go to see Suhail in Kashmir as we will not be able to afford travel costs and also because of prevailing violence and insecurity in Kashmir. To travel to India with my son I would need to pay for our return airfares that would cost a minimum of $4000. However, as soon as [S] will start his school I will only able [sic] to take him to his father once during his long school vacations, even if I could afford it financially.
23.Moreover I am aware from reading materials on internet that the situation in Kashmir is still very bad. It is not at all safe to live there where innocent people get killed any time while walking on road.
24.Our son is very well integrated in Australian society. He was less than 2 months old when he came to Australia and since then has never visited back India. He cannot understand or speak any other language other than English and is enrolled in Kindergarten ...
25.[S] is good in his alphabets and his craft work. He loves drawing, and often draws himself with his mum and dad on each side. His teacher always gives good feedback about him, saying he is very friendly and he is always ready to help others. I don’t take him much out to play with a ball or any other sporting activity, as I am all alone taking care of each and everything. Though I do take him out to a local park occasionally to play in the sand pit, which he loves. If his father would have been around, definitely he wouldn’t have missed his outdoor sport activities, as I am sure that Suhail is the kind of father who would have loved to do so. Suhail was the one who used to drop and pick up [S] from day care before going to prison, as I used to give my time to study.
26.I believe all these events that I have described have affected [S’s] speech development. He started speaking late, resulting in him having to undergo speech therapy. Although he can fully express himself, but is a little bit behind other kids of his age when it comes to speech. He is still undergoing speech therapy.
27.Overall, I am looking forward to a bright future for [S] here in Australia; however that can only truly happen if his father is around him, and we once again are living as a happy and a loving family together.
28.I request that this honourable Tribunal consider our case compassionately as my husband is no threat to society. I do not consider, knowing my husband from childhood, that he could cause harm to anyone. We as a family, and my son in particular, have suffered more than any punishment that can be handed down to us. We have lost all of our assets including our house, car and savings as a result of this ordeal. Nothing can be more distressing now to think of than our family breaking up forever.
29.I therefore humbly request that the Tribunal let my husband stay in Australia to prevent my family from breaking apart.” (Exhibit A2)
In cross-examination Mrs Durani gave evidence as follows:
·she worked as a dentist in Srinagar from early 2003 until August/September 2007;
·she first arrived in Australia on 27 May 2008 and returned to India on 21 November 2008 where she stayed with her parents in Srinagar for 5 months during which her son was born in February 2009;
·the applicant visited her in India after their son was born and they returned to Australia with their son on 23 April 2009;
·she presently works as a dental assistant 5 hours per day, 5 days per week, earning $22 per hour;
·if the applicant is deported, she and their son will remain in Australia;
·she does not believe that their son would adjust to living in India, and she does not want him to live in that society;
·having regard to the situation in India, and particularly in Kashmir, and the safety of their son, it would be better for him to remain in Australia with his father than for him to be in India with his father.
The Evidence of the character witnesses
Dr Barry Walters
Dr Walters confirmed that he had signed a statement, dated 22 March 2013, for the purpose of this proceeding. Dr Walters’ statement is as follows:
“1. I, Barry Normand John Walters, Consultant Physician, practising in … Subiaco … and at Royal Perth and King Edward Memorial Hospitals in the State of Western Australia make this statement from my own personal knowledge save where otherwise indicated.
2.I am a Fellow of the Royal Australasian College of Physicians. Additionally I am a Fellow, ad eundem, of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists.
3.I am Adjunct Professor of Medicine at the University of Notre Dame Australia, Fremantle campus. I am also Clinical Associate Professor in Medicine of the University of Western Australia and have appointments as Consultant Physician at Royal Perth Hospital and at King Edward Memorial Hospital.
4.I am currently also in private practice as a Consultant Physician in Internal and Obstetric Medicine at the above address in Subiaco.
5.I met Dr Suhail Durani (‘Suhail’), the Applicant in this matter, during his various rotations as Senior Resident Medical Officer and Medical Registrar in RPH.
6.In his latest appointment Suhail was appointed Medical Registrar at RPH.
7.Suhail and I worked closely together when he was employed as the Registrar under my direction on my Medical Unit at RPH.
8.There were certainly times, as would have been the case with any other hospital doctor, when Suhail would have been left alone with young female patients.
9.The feedback I have had from his colleagues and contemporaries and patients in relation to Suhail has always been very positive and complimentary about his kindness, and his clinical competence as a Doctor.
10.Suhail’s attitude, his knowledge and his clinical skills have been characteristic of one with the ability and personal qualities required to be a highly competent and caring Physician in this state.
11.In the time that I have known him, Suhail has always been conscientious and competent and always showed the qualities that one sees in a good doctor.
12.I have no reason to question Suhail’s professional and ethical behaviour and in fact received many positive comments about him from Nursing and other staff, and from patients.
13.I have no complaint to make against Suhail in any respect.
14.I believe Suhail is an honest person and a person of integrity.
15.I believe that his peers and the community see him as such as well.
16.I am aware of the current convictions and the circumstances of those convictions and it does not change my view of Suhail in any way.
17.I have no doubt that Suhail could return to a productive position as a Medical Registrar of great value to Royal Perth Hospital and its patients, if the Hospital agreed to employ him again. I would support strongly his application to return to work there.
18.Suhail was, at the time of his conviction, in training to be a Consultant Physician. If he were again employed, he would return to that training and, assuming he was successful at all examinations and assessments, would ultimately become a Consultant Physician of great value to the Australian community.” (Exhibit A4)
Dr Walters said, by way of elaboration of para 7 of his statement, that he had worked closely with the applicant over a period of about 3 months in mid–2010.
In cross-examination Dr Walters gave evidence as follows:
·he has been a Fellow of the Royal Australasian College of Physicians since 1981;
·he has been Adjunct Professor of Medicine at The University of Notre Dame, Fremantle campus since 2004, and Clinical Associate Professor of Medicine at The University of Western Australia since 2002;
·he has been a Consultant Physician at Royal Perth Hospital since 1995, and he was a Consultant Physician at Sir Charles Gairdner Hospital from 1986 to 1995;
·as regards para 11 of his statement – he “[has] to accept” the fact of the applicant’s conviction and it is “not [his] place to pass any judgment on that”;
·as regards para 12 of his statement – although “most people” would regard the applicant’s conviction as a reason to question his professional and ethical behaviour, he (Dr Walters) is “not in that category”;
·he does not believe that the applicant committed the offences of which he was convicted and it is his “personal belief” that that conviction was not correct;
·as regards para 17 of his statement – Royal Perth Hospital is a very busy hospital and it requires conscientious, hard-working doctors to work there, and the applicant satisfies those criteria;
·if the applicant were to apply for re-registration as a medical practitioner in Western Australia, he would support that application.
Dr Krishnamurthi Somers
27.Dr Somers confirmed that he had signed a witness statement, dated 17 April 2013, for the purpose of this proceeding. Dr Somers’ witness statement is as follows:
“1. I, Krishnamurthi Somers, Consultant Physician, practising in … Murray Street, Perth, … in the State of Western Australia make this statement from my own personal knowledge save where otherwise indicated.
2.I was born in Durban, South Africa.
3.I grew up in Durban and Johannesburg, South Africa.
4.I attended Sastri College and completed my University education at the University of the Witwatersrand, Johannesburg.
5.I am a Fellow of the Royal College of Physicians of London and Edinburgh. I am also a Fellow of the Royal Australasian College of Physicians. Additionally I am Fellow of the American College of Cardiology and Fellow of Cardiac Society of Australia and New Zealand.
6.I was formerly Professor of Medicine at Makerere University in Uganda. In my move to Australia I held a Professorial appointment in the Department of Medicine of the University of Western Australia and based as Consultant Physician at Royal Perth Hospital.
7.I am currently self-employed as Consultant Physician in Internal Medicine in Cardiology. My practice office is in the area described as Private Consulting Suites in Kirkman House on campus of Royal Perth Hospital (‘RPH’). I provide cover as Consultant Physician in Internal Medicine from time to time in RPH and also in Swan Districts Hospital.
8.I met Suhail Durani (‘Suhail’), the Appellant in this matter, during his various rotations as Senior Resident Medical Officer and Medical Registrar in RPH.
9.In his latest appointment Suhail was appointed Medical Registrar at RPH.
10.Suhail and I worked very closely together at a time when he was employed in the Acute Assessment Unit in RPH.
11. We would work together on a twice daily basis for extended periods in the Acute Assessment Unit of RPH.
12. There were certainly times, as would have been the case with any other hospital doctor, when Suhail would have been left alone with young female patients.
13.The feedback I have had from his colleagues and contemporaries and patients in relation to Suhail has always been very positive.
14.Suhail’s attitude, his knowledge and his clinical skills have characterised the makings of a sound professional career.
15.Suhail has always been conscientious and competent. He has always been a good doctor.
16.I have no reason to question Suhail’s professional and ethical behaviour.
17.I believe Suhail is an honest person and a person of integrity.
18.I believe that his peers and the community see him as such as well.
19.I am aware of the current convictions and the circumstances of those convictions and it does not change my view of Suhail in any way.
20.Notwithstanding the conviction that has been meted out to Dr Durani, it is my firm view, from my close knowledge of Dr Durani over a period of 5 years that he is a person of professional integrity. He has maintained his innocence. I believe that it would not be in his character to commit transgression in his handling of patients or in the community at large.
21.In my own estimate and in estimate of colleagues at Royal Perth Hospital who have had working relationship with Dr Durani, the impression is that he is a soft-spoken, gentle, and conscientious colleague who would be incapable of causing harm, let alone distress, to anyone, either in the setting of hospital practice or in the community. As an active member in the teams in which he worked at Royal Perth Hospital his standards of care, competence, diligence and professional standards would have been consciously and unconsciously under continuous scrutiny.
22.Had there been any query over the competence or professional standards in Dr Durani’s working engagement in Royal Perth Hospital he would not have had his employment extended by renewal of contract to the Royal Perth Hospital. Indeed, he had been employed continuously until the date of his sentencing.
23.Dr Durani is a young father of a 4 year old son. His wife is a professional, a dentist, who has been in the process of having her dental training and skills assessed for licensing corresponding to professional standards of practice in Australia. His wife and son are both Australian citizens.
24.It would be emotionally disastrous for the young Durani son to be separated from his father. Any return of Dr Durani to his place of origin, Kashmir, would be fraught with danger. Indeed, the Australian Department of Foreign Affairs and Trade has warned Australian citizens against travelling to Kashmir as an area to be avoided because of risks of terror attacks.
25.A number of senior colleagues who have interacted with Dr Durani during the course of his working career in Royal Perth Hospital are prepared to testify on the professional standards and character of Dr Durani. It was due to belief in the professional integrity of Dr Durani that colleagues at Royal Perth Hospital got together and raised funding to cover the costs of the trial of Dr Durani which, unfortunately, was conducted in such a manner that he was inevitably convicted and sentenced.” (Exhibit A5)
As regards paras 10–11 of his witness statement, Dr Somers said that he had worked with the applicant for extended periods totalling up to 12 months in the period 2009–2011.
In cross-examination Dr Somers gave evidence as follows:
·he completed his first medical degree in 1950;
·he became a Fellow of the Royal College of Physicians in 1968;
·he became a Fellow of the Royal Australasian College of Physicians in 1974;
·his Professorial appointment in the Department of Medicine, The University of Western Australia, was made in 1974;
·he was a Consultant Physician at Royal Perth Hospital from 1974 to 1990 and since 1990 he has acted as a Consultant Physician at Royal Perth Hospital on an ad hoc basis;
·as regards para 15 of his witness statement – he is unable to comment on the subject of the applicant’s convictions but he is able to say that the applicant, in his dealings with patients at the bedside, is conscientious, competent and ethical;
·as regards para 16 of his witness statement – he regards the conduct which was the subject of the applicant’s convictions as “uncharacteristic” of the applicant;
·as regards paras 17, 19 and 20 of his witness statement – he does not believe that the applicant committed the offences of which he was convicted;
·if the applicant were to apply to be re-registered as a medical practitioner in Western Australia, he would strongly support such an application;
·likewise, if the applicant were to apply for an appointment at Royal Perth Hospital or another hospital in Perth, he would strongly support such an application.
Dr Mihitha Ariyapperuma
Dr Ariyapperuma confirmed that he had signed a witness statement, dated 15 April 2013, for the purpose of this proceeding. Dr Ariyapperuma’s witness statement is a follows:
“1. I am by profession a doctor and currently an Advanced Trainee in General Medicine at the St John of God Hospital, Subiaco in the State of Western Australia.
2.I make this statement from my own personal knowledge.
3.I am a member of the Royal Australasian College of Physicians.
4.I met Dr Suhail Durani (‘Suhail’), the Applicant in this matter, during his various rotations as Resident Medical Officer and Medical Registrar in Royal Perth Hospital (RPH).
5.Suhail and I worked very closely together at a time when he was employed at Royal Perth Hospital.
6.The feedback I have had from his colleagues, staff and patients in relation to Suhail’s conduct has always been very positive. Suhail’s attitude, knowledge and clinical skills as a doctor have always been highly regarded by his fellow doctors. I have never heard of him having any issues with anyone.
7.Suhail has always been a conscientious and competent doctor who has always looked after all his patients with care and commitment.
8.I have no reason to question Suhail’s professional and ethical behaviour either in the past or in the future. I do not consider from my personal knowledge of Suhail as person that he could cause harm to anybody and or engage in an unlawful conduct.
9.I believe Suhail is an honest person and a person of integrity. I believe that his peers and the community see him as such as well.
10.I am aware of Suhail’s current conviction and the circumstances of that conviction and it does not change my view of Suhail in any way.” (Exhibit A3)
Dr Ariyapperuma said that he completed his MBBS degrees in 2004 and he then completed a one-year internship in Sri Lanka followed by a further one-year internship in the United Kingdom. He said that he undertook specialist training at Royal Perth Hospital in the period 2009–2011 and he completed his Royal Australasian College of Physicians examinations in 2011.
As regards para 5 of his witness statement, Dr Ariyapperuma said that he worked closely with the applicant in 2008, 2009 and 2010.
In cross-examination Dr Ariyapperuma gave evidence as follows:
·although he worked “side-by-side” with the applicant from 2008 at Royal Perth Hospital, they were in different medical teams looking after different patients, and he was not always present when the applicant saw patients;
·as regards paras 6 (the last sentence) and 7 of his witness statement – he was referring to patients other than the victim of the offences of which the applicant was convicted;
·as regards paras 8 and 10 of his witness statement – notwithstanding the applicant’s conviction, he finds it “hard to believe” that the applicant committed the relevant offences because of his character (“the person I know”) and because of working conditions in the hospital with numerous nurses and doctors constantly moving around the wards;
·if the applicant were to apply for re-registration as a medical practitioner in Western Australia, he would support such an application;
·likewise, if the applicant were to apply for a position in a hospital, he would support such an application.
Additional character evidence
Statements tendered in evidence by the applicant
The applicant also tendered in evidence a signed statement of each of the following persons:
·Dr Michael McComish, Consultant Physician, Royal Perth Hospital, dated 22 March 2013 (Exhibit A6);
·Zohra Reman, dated 15 April 2013 (Exhibit A7);
·Suresh Rajan, dated 15 April 2013 (Exhibit A8);
·Dr Mohamed Ibrahim, Anaesthetic Registrar, Royal Perth Hospital, dated 14 April 2013 (Exhibit A9);
·Dr Mujeeb Rehman, General Practitioner, dated 15 April 2013 (Exhibit A10);
·Dr Antonius Steven, Advanced Trainee in Respiratory Medicine, John Hunter Hospital, Newcastle, New South Wales, dated 28 March 2013 (Exhibit A11).
Although Dr McComish was required by the respondent for cross-examination, he did not appear. The respondent, nevertheless, did not object to the tender of his abovementioned statement. None of the other abovementioned persons was required by the respondent for cross-examination and all of the other abovementioned statements were tendered by consent.
The Tribunal notes that each of the abovementioned statements refers to the applicant as (inter alia) a person of integrity and each of the statements by medical practitioners also refers to the applicant’s conscientiousness, competence and professional ethical behaviour as a practising doctor at Royal Perth Hospital. The Tribunal notes, furthermore, that in each of the abovementioned statements the author states that they are aware of the applicant’s convictions and the circumstances thereof and that their opinion of the applicant has not been changed thereby.
Character references/letters of support in the G Documents
Numerous character references and letters of support relating to the applicant are included in the G Documents (Exhibit R1). These include the following:
·letter from Dr Peter Leman, Head of Department of Internal Medicine, Royal Perth Hospital, dated 30 June 2011, which states as follows:
“ Dr Suhail Durani is employed as a medical practitioner at Royal Perth Hospital, Wellington Street Perth. He has had [sic] held various rotations during his employment, but has been a medical registrar in the department of Internal Medicine at various times during 2010 and 2011. I am employed as Head of Department of Internal Medicine and would be overall responsible for his clinical supervision whilst in the department.
I am aware that he been [sic] before the court accused of indecent assault and digital penetration.
In my time working with Dr Durani I have always found him to be polite, well spoken, mild mannered and professional in all aspects of his communication and behaviour. He has been a talented and committed junior doctor, with a keen desire to learn and progress in his chosen career. I have never had occasion to reprimand him in any matter and he has been unfailingly appropriate in all his interactions with other members of staff and patients whilst in the department of Internal Medicine. My opinion of him is of a hard working dedicated doctor, husband and father who is committed to completing his education and working professionally and responsibly for his patients.
If Dr Durani was to be cleared for full employment by AHPRA, then I would be fully able to welcome him back in the department to continue his training.” (G33, p 259);
·letter from Dr Kevin Warr, Consultant Nephrologist, Department of Nephrology and Renal Transplantation, Royal Perth Hospital, dated 20 September 2012, which states as follows:
“ I write on behalf of Dr Suhail Durani, who worked for me as one of my Junior Medical Staff in my role as Consultant Nephrologist, Royal Perth Hospital. I have also had interaction with him professionally in my role as Head of Department, Nephrology, Divisional Director, Medical Specialities Division, Royal Perth Hospital, and Acting Director of Clinical Services, Royal Perth Hospital.
I acknowledge that I am aware of the offence for which he was charged and found guilty and jailed.
When I was made aware of this charge, I was shocked as it seemed totally out of character for Dr Durani to behave in such a way. In my interactions with Dr Durani, I have always found him to be honest, hard working and of good moral character. I have not had any reason to doubt that opinion in all of my interactions with him. I am unaware of any other disciplinary action taken against him during his employment at Royal Perth Hospital, of any nature what so ever.
Whilst as a Health Department employee, a decision at some time in the future to re-employ Dr Durani is not within my authority to grant, I certainly would have no qualms whatsoever if I was asked to supervise him in an ongoing fashion at some time in the future.” (G33, p 257).
other evidence
Further material which is in evidence will be referred to later in these reasons.
Analysis
Application of the “character test”
By reason of the fact that the applicant was, on 13 July 2011, sentenced to 2 years and 4 months’ imprisonment, the Tribunal finds that the applicant has a “substantial criminal record”, as defined in s 501(7) of the Act, and that, by reason of s 501(6)(a) of the Act, he does not pass the “character test”.
It follows from that finding that the discretionary power to cancel the visa, pursuant to s 501(2) of the Act, is enlivened in this case.
Should the discretionary power to cancel the visa be exercised in this case?
The primary considerations
Paragraph 9 of the Direction states as follows:
“ 9 Primary considerations – visa holders
(1) In deciding whether to cancel a person’s visa, the following are primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The strength, duration and nature of the person’s ties to Australia;
(c)The best interests of minor children in Australia;
(d)Whether Australia has international non-refoulement obligations to the person.”
Protection of the Australian community from criminal or other serious conduct
Paragraph 9.1 of the Direction states as follows:
“ 9.1 Protection of the Australian community
(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
(a) The nature and seriousness of the person’s conduct to date; and
(b)The risk to the Australian community should the person commit further offences or engage in other serious conduct.
9.1.1 The nature and seriousness of the conduct
(1)In considering the nature and seriousness of the person’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
(a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b) The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(c) Where the person is in Australia, that a crime committed while the person was in immigration detention; during an escape from immigration detention; or after the person escaped from immigration detention, but before the person was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
(d) The principle that any conduct that forms the basis for a finding that a person does not pass the character test under s 501(6)(b) or (d), or is not of good character under s 501(6)(c), is considered to be serious;
(e)The sentence imposed by the courts for a crime or crimes;
(f) The frequency of the person’s offending and whether there is any trend of increasing seriousness;
(g)The cumulative effect of repeated offending;
(h) Whether the person has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(i) Whether the person has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the person’s migration status (noting that the absence of a warning should not be considered to be in the person’s favour);
(j) Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
9.1.2The risk to the Australian community should the person commit further offences or engage in other serious conduct
(1)In considering whether the person represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. In making this assessment, decision-makers must have regard to, cumulatively:
(a) The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and
(b) The likelihood of the person engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the person re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).”
The applicant – appropriately, in the Tribunal’s opinion – did not dispute that the offences of which he was convicted on 10 June 2011 – particularly the two offences of sexual penetration without consent – involved a vulnerable victim and a serious breach of trust and are to be viewed very seriously. He acknowledged that, having regard, in particular, to paras (a), (b) and (e) of para 9.1.1 of the Direction, those offences are serious offences for the purposes of para 9.1 of the Direction. The Tribunal accepts that that is the case.
There is very little objective, independent evidence before the Tribunal regarding the risk of the applicant’s offending in a similar, or other serious, manner in the future. That evidence comprises:
·a Department of Corrective Services Immigration Report, dated 9 October 2012, which states (inter alia):
“ 5. Program Participation
5.1 Comment on prisoner’s program participation.
…
Durani was initially assessed by the Treatment Assessors on the 25/07/2011 for participation in the following programs;
COGNITIVE SKILLS: Assessed, but no program required.
SEX OFFENDING: Durani was assessed as requiring a Sex Offending Medium Program, however his current stance of denial precludes him from participating in this program. Given Durani’s stance of denial in relation to present offending, he was then assessed as a suitable candidate for inclusion in the Sex Offending Denier’s Program. However on 08/10/2012, he was re-assessed as being a low risk of reoffending and therefore not required to participate in a Sex Offending Deniers Program as per Offender Notes.” (Exhibit R1, G10, p 72);
·a Department of Corrective Services document, dated 20 September 2012, which refers to the cancellation of the applicant’s booking for the Sex Offenders Deniers Program and states as follows:
“ Cancellation Summary
Mr Durani was assessed as being suitable for a Sex Offenders Deniers Program, he was booked for his program in Quarter 4 2012 at Karnet Prison Farm. Upon assessment of his … score and other dynamic factors, his level of risk of reoffending was determined to be in the low range. As such Mr Durani is deemed ineligible to participate in the Sex Offenders Deniers Program as low risk of reoffending is considered to be an exclusion criterion for program participation.
New Assessed Intervention Needs No
Due to his low risk level, Mr Durani is not considered a suitable candidate for inclusion to [sic] the Sex Offenders Deniers Program and no further assessment is required at this juncture.” (Exhibit R1, G35, p 334)
As regards rehabilitation, the applicant was not offered any relevant treatment program during his incarceration: he was assessed as not requiring a Cognitive Skills Program; he was found to be ineligible to participate in a Sex Offending Medium Program because of his denial of guilt regarding the offences of which he was convicted; and he was found to be ineligible to participate in a Sex Offending Deniers Program because he was assessed as being at a low risk of re-offending (see paragraph 43 above).
The Tribunal notes, however, that from the date of the offences of which he was convicted, namely, 20 February 2010, to the date of his sentencing and the commencement of his incarceration, namely, 13 July 2011, the applicant continued to be employed as a Medical Registrar at Royal Perth Hospital, and that he continued to perform his duties in that capacity (subject to the undertakings referred to in paragraph 17 above) in the Acute Assessment Unit, the Department of Internal Medicine, and the Department of Haematology until 1 May 2011 when he took leave relief (see Annexure SAKD – 45A to the applicant’s witness statement (Exhibit A1)). The Tribunal also notes the Department of Corrective Services Immigration Reports, dated 29 July 2011 and 9 October 2012, which refer to the applicant’s “current prison performance” in positive terms (Exhibit R1, G26 and G10, respectively).
The Tribunal also notes the applicant’s oral evidence that the chance of his committing any serious offence, whether of a sexual or non-sexual nature, in the future is “negligible” or “zero” (see paragraph 21 above). In the Tribunal’s opinion, the applicant appeared to be genuine and sincere in making that assertion.
The Tribunal notes, furthermore, the following remarks of Fenbury DCJ when sentencing the applicant on 13 July 2011:
“ …
You have no previous convictions whatsoever. The personal consequences of this conviction are obviously catastrophic for you …
…
… immediate imprisonment will cause great hardship to you and your wife and child. Along with your liberty, you stand to lose your livelihood and family home. Your wife would have to battle on without a husband in a place where she has no family. Your son would only have limited access to his father for the next while.
These events are severe consequences for brief wrongdoing. …” (Exhibit R1, G7, pp 56, 58).
In the Tribunal’s opinion the abovementioned matters referred to by Fenbury DCJ, in addition to the sentence of immediate imprisonment for a total effective term of 2 years and 4 months, would necessarily constitute a very powerful and effective personal deterrent to the applicant’s committing a serious offence in the future. There is also, of course, the high likelihood of visa cancellation in the event that the applicant was convicted of another serious offence in the future.
The Tribunal notes, on the other hand, the respondent’s implied contention that the applicant’s failure to express remorse and to accept responsibility for the offences of which he was convicted on 10 June 2011 is incompatible with his having achieved rehabilitation. In the Tribunal’s opinion, however, the applicant’s failure to express remorse or to accept responsibility for those offences is consistent with, and is explained by, his continued denial of guilt of any of those offences. Although the applicant’s denial of guilt of those offences appeared to the Tribunal to be genuine and sincere, the Tribunal, on the basis of the applicant’s conviction of those offences and his unsuccessful appeal against that conviction, must, and does, accept that he was rightly convicted of those offences.
Having regard, however, to the extensive evidence regarding the applicant’s character and personal and professional integrity – including the oral evidence of very senior and distinguished former colleagues of the applicant at Royal Perth Hospital, namely, Dr Walters and Dr Somers – the Tribunal is satisfied that the offences of which the applicant was convicted on 10 June 2011 were wholly out of character.
In the Tribunal’s opinion, having regard to the considerations referred to in paragraphs 43–49 above, it is most unlikely that the applicant will commit a serious offence of the kind of which he was convicted on 10 June 2011, or any other serious offence, or engage in other serious conduct, in the future. The Tribunal, however, cannot conclude that there is no risk of the applicant’s seriously offending in the future, but the Tribunal is satisfied, having regard to the abovementioned considerations, that such risk is minimal.
The Tribunal is required, by para 9.1.2(1)(a) of the Direction, also to have regard to the “nature of the harm to individuals or the Australian community should the [applicant] engage in further criminal or other serious conduct.”
The respondent submitted that the Tribunal should have regard not only to “the direct harm” to the victim, but also to “the resulting harm”, “should the applicant again commit similar offences”. The respondent referred the Tribunal to the Victim Impact Statement, signed by the victim of the offences of which the applicant was convicted on 10 June 2011, and dated 3 June 2011, which was provided by the State to Fenbury DCJ for the purpose of the applicant’s sentencing on 13 July 2011. The contents of that Statement are as follows:
“ · Post Traumatic Stress Disorder
· Nightmares for 6 months
· Loss of appetite for several months (weight loss)
· Can’t focus – no concentration
·Anxiety attacks – on public transport, at shopping centres, crowded places and also at random times
·Insomnia – because of the nightmares even if I got tired I didn’t want to sleep
Was prescribed sleeping tablets as it became worse
·On two occasions I have tried to work but couldn’t continue as I would break down and cry/anxiety attack/panic attack in a tattoo shop and telemarketing (The West Australian newspaper can confirm this – letter to follow from employer).
·I was studying art @ TAFE but failed the course from not attending the days when I could not calm down.
·Put a strain on my sexual relationship with my Fiancé
·I cut my finger/thumb webbing open accidently slicing cake – my friend started driving me to hospital as it needed stitches, half way there, I made us go back because I was too scared to go into a hospital (I had the 6 stitches done the next day at an after hours clinic).
·Nervousness”. (Exhibit R3, S5)
The respondent also submitted as follows:
“ Given the nature of the offences and the nature of the harm to individuals should the applicant engage in further criminal conduct of this nature, any risk that the conduct may be repeated in the future is unacceptable: see paragraphs 6.3(3) and 9.1.2(1) of Direction No. 55.” (original emphasis) (Respondent’s Statement of Facts, Issues and Contentions, para 49)
The Tribunal does not accept that submission for the following reasons.
Paragraph 6.3(3) of the Direction states:
“ In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.”
and para 9.1.2(1) relevantly states:
“ … Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. …”
The only evidence on which the respondent has apparently based the abovementioned submission that the offences of which the applicant was convicted on 10 June 2011 fall into the category of offending referred to in paras 6.3(3) and 9.1.2(1) of the Direction is the abovementioned Victim Impact Statement. The Tribunal, however, has also had regard to the remarks of Fenbury DCJ when sentencing the applicant on 13 July 2011 (see paragraph 14 above) including, in particular, the following:
“ …
The complainant was not hurt physically. You were not violent. …
Two significant features of the case are the vulnerability of the complainant at the time and the nature of the breach of trust involved in the offending. Your conduct in pretending to professionally examine and then taking sexual advantage of a sick and vulnerable young women [sic], seeking urgent medical treatment, was quite despicable. To breach the trust that sick, young female patients bestow on those they go to for treatment and care is serious. It is self-evidently important that sick people be able to trust that emergency or other health carers will not take advantage of them for their own sexual gratification when they seek help and comfort whilst ill and subject themselves to physical and medical examination.
…
The offence of sexual penetration without consent covers the field of sexual behaviours that involve any sexual penetration whatsoever. Obviously, there are very many types of sexual penetration. Digital vaginal sexual penetration is one example of a sexual penetration, and there are of course other types which are regarded more seriously. Nevertheless, digital vaginal sexual penetration is serious.
In my view, a sentence of imprisonment is required. I conclude this is a serious example of digital sexual penetration for the reason that I have attempted to articulate. …
…” (Exhibit R1, G7, pp 56, 57)
The Tribunal notes that Fenbury DCJ did not refer to the abovementioned Victim Impact Statement in his sentencing remarks.
In the Tribunal’s opinion, having regard to the abovementioned sentencing remarks of Fenbury DCJ and the abovementioned Victim Impact Statement, the harm that was caused to the particular victim of the offences of which the applicant was convicted on 10 June 2011, and the harm that would be caused to the Australian community should the applicant engage in criminal conduct of that nature in the future, while very serious, is not of itself “so serious that any risk that it may be repeated [is] unacceptable”, within the meaning of para 9.1.2(1) of the Direction.
Accordingly, it is appropriate for the Tribunal to have regard to subparas (a) and (b) of para 9.1.2(1) of the Direction in assessing whether the applicant “represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community” for the purposes of para 9.1.2(1) of the Direction.
Having regard to:
·the “nature of the harm to individuals or the Australian community should the [applicant] engage in further criminal or other serious conduct” (subpara (a) of para 9.1.2(1) of the Direction), as described in the abovementioned sentencing remarks of Fenbury DCJ and the abovementioned Victim Impact Statement; and
·the Tribunal’s opinion (see paragraph 50 above) that it is most unlikely that the applicant will commit any serious offence or engage in other serious conduct in the future;
the Tribunal’s assessment, having regard to para 6.3(3) of the Direction, is that the risk that the applicant may cause serious harm to the Australian community in the future is minimal and does not necessarily constitute an unacceptable risk for the purposes of para 9.1.2(1) of the Direction.
Conclusion regarding protection of the Australian community
Having regard to:
·the undisputed proposition that the offences of which the applicant was convicted on 10 June 2011 are, given the vulnerability of the victim and the serious breach of trust involved therein, to be viewed very seriously and constitute serious offences for the purposes of para 9.1 of the Direction; and
·the Tribunal’s assessment that the risk that the applicant may cause serious harm to the Australian community in the future is minimal and does not necessarily constitute an unacceptable risk for the purposes of para 9.1.2(1) of the Direction;
the Tribunal concludes that the “primary consideration” regarding the “protection of the Australian community from criminal or other serious conduct”, referred to in para 9.1 of the Direction, weighs in favour of cancellation of the visa to a significant degree but not to such a degree as would necessarily outweigh all countervailing “primary considerations” and other relevant considerations in this case (see para 6.3(3) of the Direction).
The strength, duration and nature of the person’s ties to Australia
Paragraph 9.2 of the Direction states as follows:
“ 9.2 Strength, duration and nature of the person’s ties to Australia
(1) Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the person has resided in Australia, including whether the person arrived as a young child, noting that:
(i) Less weight should be given where the person began offending soon after arriving in Australia; and
(ii) More weight should be given to time the person has spent contributing positively to the Australian community.
(b) The strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.”
The applicant first arrived in Australia on 6 December 2006, aged 31 years, and, apart from four relatively short periods of absence from Australia (see paragraph 4 above), he has remained in Australia since that date. He came to Australia to take up an appointment as a Resident Medical Officer at Royal Perth Hospital and he was employed in that capacity from 8 January 2007 to 7 June 2009 and, subsequently, as a Medical Registrar at Royal Perth Hospital from 8 June 2009 to 10 June 2011 (see Annexure SAKD – 45A to the applicant’s witness statement (Exhibit A1)). He was incarcerated from 13 July 2011 to 6 February 2013 and he has been in immigration detention from 6 February 2013 to date.
Although the offences of which the applicant was convicted on 10 June 2011 were the subject of a complaint made to Royal Perth Hospital on 20 February 2010 and the subject of formal charges laid by the police on 24 March 2010, he continued, whilst on bail, to be employed as a Medical Registrar at Royal Perth Hospital, albeit subject to the undertakings referred to in paragraph 17 above, until 10 June 2011.
Although the applicant first arrived in Australia as an adult and has resided in Australia for a relatively short period of approximately 6 years and 5 months, the Tribunal is satisfied, on the basis of the evidence and letters of support of numerous of his colleagues (including senior colleagues) at Royal Perth Hospital referred to in paragraphs 24–36 above, that, with the obvious exception of the offences which were committed on 20 February 2010, the applicant made a very valuable contribution to the community as a medical practitioner at Royal Perth Hospital for approximately 4½ years until he was convicted and subsequently incarcerated.
It is common ground that the applicant has strong family ties with his wife and young son who are Australian citizens and who reside in Australia. It is apparent from the evidence before the Tribunal, furthermore, that, although the applicant has ceased to practise as a medical practitioner and to be so registered following his conviction on 10 June 2011, he has retained a very extensive supportive network of friends and former medical colleagues in Perth.
Having regard to the considerations referred to in paragraphs 60–63 above, the Tribunal concludes that the “primary consideration” regarding the “strength, duration and nature of the [applicant’s] ties to Australia”, referred to in para 9.2 of the Direction, on balance, weighs against cancellation of the visa but, having regard to the relatively short period of the applicant’s residence in Australia and of his contribution to the Australian community prior to his conviction, the Tribunal does not attach significant weight to this “primary consideration”.
The best interests of minor children in Australia
Paragraph 9.3 of the Direction states as follows:
“ 9.3 Best interests of minor children in Australia affected by the decision
(1)Decision-makers must make a determination about whether cancellation is, or is not, in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to cancel the visa is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
(a) The nature and duration of the relationship between the child and the person. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) The extent to which the person is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c) The impact of the person’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d) The likely effect that any separation from the person would have on the child, taking into account the child’s ability to maintain contact in other ways;
(e) Whether there are other persons who already fulfil a parental role in relation to the child;
(f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) Evidence that the person has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the person’s conduct.”
It is common ground that there is one minor child in Australia – namely, the applicant’s son who is presently 4 years and 2 months of age (“the child”) – who will be affected by the decision regarding the visa.
The Tribunal accepts the (uncontradicted) evidence of the applicant, and of Mrs Durani (the child’s mother), regarding the relationship between the applicant and the child and, on the basis of that evidence, it comments on the factors referred to in para 9.3(4) of the Direction, as follows:
·the applicant has had, and continues to have, a very close, loving and supportive relationship with the child from the time of the child’s birth in February 2009 and notwithstanding the applicant’s incarceration and detention from 13 July 2011 to date;
·if the visa were not cancelled, the applicant would remain in Australia and live together with Mrs Durani and the child as a close, loving and supportive family unit, and in that context he would be likely to play a full, positive parental role until at least the time until the child turns 18 in 2027;
·the applicant’s prior conduct has not had a negative impact on the child, except for the physical separation resulting from his incarceration in July 2011, and the applicant’s future conduct is likely to have nothing but a positive impact on the child;
·if the visa were cancelled, the applicant would be likely to be physically separated from the child indefinitely, given the likelihood of the child’s remaining in Australia with Mrs Durani, and, notwithstanding the likely ability of the applicant to maintain contact with the child by telephone, Skype and other electronic means, the effect of that ongoing separation is likely to have a substantial detrimental effect on the child’s social, emotional and cognitive development and general wellbeing;
·although Mrs Durani already fulfils, and will continue to fulfil, a parental role in relation to the child, the child’s interests would be better served if he were to grow up in a family unit together with both Mrs Durani and the applicant;
·the wish of the child, as conveyed by Mrs Durani, is that he not be physically separated from his father, the applicant;
·there is no evidence or suggestion that the applicant has abused or neglected the child in any way, or that the child has suffered or experienced any physical or emotional trauma arising from the applicant’s conduct (other than the detrimental emotional effect of the child’s separation from the applicant arising from the applicant’s incarceration resulting from his conviction and sentencing).
Having regard to the factors referred to in paragraph 67 above, the Tribunal, on the basis of the evidence before it, has no doubt that cancellation of the visa is not in the best interests of the child. Accordingly, the Tribunal concludes that the “primary consideration” regarding “the best interests of minor children in Australia”, referred to in para 9.3 of the Direction, weighs against cancellation of the visa. In the Tribunal’s assessment, having regard to the considerations referred to in paragraph 67 above, this “primary consideration” weighs heavily against cancellation of the visa.
Whether Australia has international non-refoulement obligations to the person
Paragraph 9.4 of the Direction states:
“ 9.4 International non-refoulement obligations
(1) In cases where claims which may give rise to international non-refoulement obligations are raised by the person or are clear from the facts of the case, they must be given consideration if the person is in Australia.
…
(3)Australia has non-refoulememnt obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); and the International Covenant on Civil and Political Rights (ICCPR) and its Second Optional Protocol. …”
The applicant has not raised any claim which may give rise to international non-refoulement obligations; nor is any such claim clear from the facts of the applicant’s case. Accordingly, pursuant to para 9.4(1) of the Direction, the Tribunal is not required to consider such matters.
This “primary consideration” is, therefore, not applicable or relevant to the applicant’s case and the Tribunal, consistently with para 8(1) of the Direction, has not taken it into account.
Other relevant considerations
Paragraph 10 of the Direction states as follows:
“ 10 Other considerations – visa holders
(1) In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a)Effect of cancellation of the person’s visa on the person’s immediate family in Australia, if those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely;
(b)Impact on Australian business interests;
(c)Impact of a decision not to cancel a visa on members of the Australian community, including victims of the person’s criminal behaviour, and the family members of the victim or victims where that information is available and the person being considered for visa cancellation has been afforded procedural fairness;
(d)The extent of any impediments that the person may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(i) The person’s age and health;
(ii) Whether there are substantial language or cultural barriers; and
(iii) Any social, medical and/or economic support available to them in that country.”
It is common ground that the considerations referred to in subparas (a) and (d) of para 10(1) of the Direction are relevant to the applicant’s case. The Tribunal notes, however, that the list of considerations set out in para 10(1) is not exhaustive.
Effect of cancellation of the visa on the applicant’s immediate family in Australia
The only other members of the applicant’s immediate family in Australia are Mrs Durani and their son, who are both Australian citizens. The effect of cancellation of the visa on the applicant’s son has already been considered in the context of the “primary consideration” regarding the best interests of the child (see paragraphs 66–68 above) and will not be further considered here.
As regards the effect of cancellation of the visa on Mrs Durani, the Tribunal is satisfied, on the basis of Mrs Durani’s evidence, that she would suffer great emotional hardship as a result of being deprived of the applicant’s companionship and support on a daily basis and his support in the raising of their son. The Tribunal also accepts that Mrs Durani would be financially disadvantaged if the applicant were removed from Australia. Although the Tribunal is unable to quantify that disadvantage precisely on the basis of the evidence before it, it accepts that it would not be insignificant.
The Tribunal concludes that this consideration weighs against cancellation of the visa.
The extent of any impediments that the applicant may face if removed from Australia to India
The adverse effects which the applicant claims that he will personally suffer if removed from Australia and returned to India are referred to in subparas (ii)–(v) of para 34 of his witness statement (Exhibit A1 – set out in paragraph 15 above). The Tribunal, having regard to the evidence before it, is not prepared to make specific findings regarding impediments which the applicant may face in establishing himself and maintaining basic living standards in India. The Tribunal is, however, prepared to accept that the applicant would face more substantial impediments of that kind in India than he would face if he remained in Australia. Accordingly, the Tribunal concludes that this consideration weighs against cancellation of the visa.
The Tribunal accepts, furthermore, that the indefinite physical separation from his wife and son that would result from the cancellation of the visa and his removal from Australia would be likely to cause the applicant great emotional distress. Accordingly, this additional consideration also weighs against cancellation of the visa.
Conclusion regarding other relevant considerations
Each of the abovementioned other relevant considerations weighs against cancellation of the visa but, in the Tribunal’s assessment, none of those considerations is of such a nature or of such importance as to displace the general rule referred to in para 8(4) of the Direction, namely:
“ Primary considerations should generally be given greater weight than the other considerations”.
The Tribunal notes, furthermore, that the respondent has not pointed to any (non-primary) relevant consideration which weighs in favour of cancellation of the visa.
Conclusion – the Preferable Decision
As required by para 7(1)(a) of the Direction, the Tribunal, informed by the principles in para 6.3, has taken into account the relevant “primary considerations” and the other relevant considerations in this case and has assessed the weight which, in its opinion, it is appropriate to give to each of those “primary considerations” and other considerations.
In the Tribunal’s opinion, the only relevant consideration in this case which weighs in favour of cancellation of the visa is the “primary consideration” regarding the “protection of the Australian community from criminal or other serious conduct”. In the Tribunal’s assessment, that “primary consideration” should be given significant weight, but (as previously mentioned) not to the extent that it would necessarily outweigh all countervailing “primary considerations” and other relevant considerations in this case.
In the Tribunal’s opinion the other two relevant “primary considerations” and all other relevant considerations in this case weigh against cancellation of the visa. In the Tribunal’s assessment, the “primary consideration” regarding “the best interests of [the applicant’s child] in Australia” should be given great weight, whereas the “primary consideration” regarding “the strength, duration and nature of the [applicant’s] ties to Australia” should be given some, but not significant, weight. In the Tribunal’s assessment, each of the other relevant considerations referred to in paragraphs 73–77 above should also be given some, but not significant, weight.
Balancing all of the abovementioned “primary considerations” and other relevant considerations, having regard to the appropriate weight to be given to each of them, the Tribunal concludes that those considerations, on balance, weigh against cancellation of the visa. In the Tribunal’s assessment, the two “primary considerations” and all of the other relevant considerations which weigh against cancellation of the visa cumulatively outweigh the “primary consideration” regarding the protection of the Australian community which weighs in favour of cancellation of the visa.
The Tribunal is, however, ultimately required, by subpara (b) of para 7(1) of the Direction, to determine whether the risk of future harm by the applicant to the Australian community is unacceptable. The Tribunal is, furthermore, required to make that determination, informed by the principles in para 6.3 of the Direction. For the reasons referred to in paragraphs 50–57 above, and having regard to the two “primary considerations”– particularly the best interests of the applicant’s 4-year-old child – and the other relevant considerations which weigh against cancellation of the visa, the risk of future harm by the applicant – which the Tribunal has assessed to be minimal – is a risk which should, in the Tribunal’s opinion, be tolerated by the Australian community.
The Tribunal concludes, therefore, that the “primary considerations” and other relevant considerations in this case, on balance, weigh against cancellation of the visa and that, having regard to all the relevant circumstances of this case:
·the minimal risk of future harm to the Australian community presented by the applicant is not a risk which is unacceptable; and
·the applicant has not presently forfeited the privilege of continuing to hold the visa and of remaining in Australia.
Accordingly, the preferable decision in this case is that the visa not be cancelled under s 501(2) of the Act.
Decision
For the above reasons the decision under review is set aside and, in substitution therefor, it is decided that the visa not be cancelled under s 501(2) of the Act.
I certify that the preceding 86 (eighty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop. ........................[sgd B Mitchell]........................
Administrative Assistant
Dated 6 May 2013
Dates of hearing
22, 24 April 2013
Counsel for the Applicant
Mr R Hooker
Solicitor for the Applicant
Mr S Shakur
Counsel for the Respondent
Mr P Macliver
Solicitors for the Respondent
Sparke Helmore
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