Re Rajaratnam and Minister for Immigration and Multicultural Affairs

[2006] AATA 942

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 942

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No N2006/1081

GENERAL ADMINISTRATION DIVISION		)
Re		Vickneswaran RAJARATNAM

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal Mr Julian Block, Deputy President

Date3 November 2006

PlaceSydney

Decision The decision under review is affirmed.

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

Mr Julian Block, Deputy President

CATCHWORDS

IMMIGRATION – visaex (on-shore visa cancellation) – cancellation of return visit visa on character grounds – criminal conduct – applicant convicted of sexual offences – recidivism – deterrence – community expectations – hardship – decision of the Respondent affirmed.

Migration Act 1958; sections 501, 500(6H); 500(6J);

Ministerial Direction 21

Minister for Immigration & Multicultural Affairs v “SRT” [1999] FCA 1197;

Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198;

Re Stone and Minister for Immigration and Ethnic Affairs [81] (1981) 3 ALN No 81

REASONS FOR DECISION

3 November 2006 Mr Julian Block, Deputy President

PART A - background and introduction

1.       The decision under review is the decision by a delegate of the Respondent dated 30 June 2006, in terms of which the Applicant’s Return Visit Visa, granted on 7 July 1999, (“the Visa”) was cancelled.  The Applicant sought the review of that decision by application dated 23 August 2006.

2. The Applicant was self-represented; the Respondent was represented by Ms Xuelin Teo, of Clayton Utz, solicitors. The Tribunal had before it the documents lodged pursuant to section 501G of the Migration Act 1958 (“the Act”) together with Exhibits as follows:

Exhibit A1:A letter dated 8 October 2006 addressed to the Director of Litigation, Legal Branch, Department of Immigration and Multicultural Affairs by a number of the Applicant’s relatives living in Australia and in particular, but not only, his uncle Mr C Mahadavan Chelliah.  The signatories to Exhibit A1 and their relationship to the Applicant are as follows:

Kamalambikai Kuberan (aunty);

C Mahadavan Chelliah (uncle);

Dr Ganambigai Devi Selvadurai (aunty);

Dr Ganadevan Mahadavan (cousin);

Kamalasini Kuberan BA Accounting (cousin)

Thriambaki Juberan BAHRM (cousin);

Dr Kumaradevan Mahadavan (cousin); and

Sivakumaran Kuberan (cousin)

Exhibit A2:A letter dated 10 October 2006 addressed to the Director of Litigation, Legal Branch, Department of Immigration and Multicultural Affairs by Mr P Hamasanathan and Mrs V Hamsanathan;

Exhibit A3:A letter dated 10 October 2006 addressed to the Director of Litigation, Legal Branch, Department of Immigration and Multicultural Affairs by Nivedita Lambert BEd BA and John Lambert CEd Bed COGE (UNSW);

Exhibit A4:A letter dated 9 October 2006 addressed to the AAT by Mr Mahanbir Singh Grewal, President, Guru Nanak Society of Australia Inc;

Exhibit A5:A letter dated 10 October 2006 addressed to the Director of Litigation, Legal Branch, Department of Immigration and Multicultural Affairs by Mr and Mrs Paramsothi;

Exhibit A6:A letter dated 10 October 2006 addressed to the Director of Litigation, Legal Branch, Department of Immigration and Multicultural Affairs by Dr Jega Markandoo (annexed to Exhibit A8 at Appendix C];

Exhibit A7:A letter dated 10 October 2006 addressed to the Director of Litigation, Legal Branch, Department of Immigration and Multicultural Affairs by Siva Selvakulalingam JP, President of Hindi Society, Hindu Society of South Australia Inc (annexed to Exhibit A8 at Appendix C);

Exhibit A8:Statement [undated] by the Applicant; and

Exhibit A9:Refer below.

Exhibit R1:An Immigration Report dated 3 October 2006 by Mr Vincent Fitzsimmons, Probation and Parole Officer (Annexed to the Respondent’s Statement of Facts and Contentions at Annexure A); and

Exhibit R2:A letter dated 7 July 2006 addressed to the Chairperson, NSW State Parole Authority, by Victoria Bel, Clinical Psychologist and Elzbieta Kobylinska, Senior Psychologist, Long Bay Correctional Complex.

It should be noted that an exhibit designation (Exhibit A9) was assigned to a page faxed to Mr Vincent Fitzsimmons at the request of the Applicant and while the latter was giving oral evidence by telephone link.  Mr Fitzsimmons gave evidence in this fashion on 18 October 2006, the second of two hearing days.  That page cannot be admitted into evidence having regard to the provisions of section 500(6J) of the Act; the same prohibition applies to the questions and answers referable to that page having regard to the provisions of section 500(6H) of the Act.

3.       The Exhibits designated as ‘A’ Exhibits can (excluding Exhibit A8) be categorised in broad terms as ‘character evidence’.  Of the signatories to those Exhibits, only Mr Chelliah (the Applicant’s uncle) gave oral evidence.  Ms Teo did not require the other signatories for cross-examination.

4.       The Respondent’s Statement of Facts and Contentions contains under the heading of “Facts” a useful chronological survey of (some) relevant events; it is included in these reasons as follows:

FACTS

9 June 1996	Mr Rajaratnam, a citizen of Malaysia, commits 3 offences against a victim for which he was subsequently convicted by a jury and sentenced to imprisonment on 25 July 2003 (see below).
4 March 1998	An aggravated domestic violence order is filed in the Burwood Local Court against Mr Rajaratnam.
7 July 1999	Mr Rajaratnam is granted a Resident Return Visa (BB-155) ("Visa").
11 May 2000	Mr Rajaratnam is found not guilty by verdict in a Criminal Court in respect of a charge for entering a dwelling with intent to commit a felony.
18 August 2000	The NSW Supreme Court (Judge Sperling) sentences Mr Rajaratnam to imprisonment in respect of the 3 offences committed on 9 June 1996.
11 April 2002	Mr Rajaratnam incurs a misconduct charge for failing to comply with Correctional Centre routine (page 2 of Annexure A).
25 July 2003	The NSW Criminal Court of Appeal quashes Judge Sperling's sentences because they were doubled up to some degree, and substitutes them with 4 years imprisonment for sexual intercourse without consent, 5 years imprisonment for administering a stupefying drug with intent to enable him to commit an indictable offence, and 6 months imprisonment for indecent assault, with a 2 year parole period.  However, the Court of Appeal agreed with Judge Sperling's characterisation of the offences.
14 January 2004	Mr Rajaratnam incurs a misconduct charge for disobeying directions, resulting in reprimand and caution (page 2 of Annexure A).
10 January 2006	Notice of intention to consider cancelling Mr Rajaratnam's Visa is issued.
6 March 2006	Mr Rajaratnam incurs 2 misconduct charges: 1. for failing to comply with Correctional Centre Routine and receives seven days off buy ups; and 2. for an offence of disobeying direction which was proven and dismissed (page 2 of Annexure A).
13 March 2006	Mr Rajaratnam responds to the notice of intention to consider cancelling his Visa.
30 June 2006	The Minister's delegate cancels Mr Rajaratnam's Visa pursuant to s501(2) of the Migration Act 1958 ("Act") after finding that he does not pass the character test because of his substantial criminal record.
16 August 2006	Mr Rajaratnam receives notification of the decision to cancel his Visa.
23 August 2006	The Administrative Appeals Tribunal ("Tribunal") receives an application for review of the delegate's decision.

…

5.       The Applicant is currently in jail having been sentenced to a lengthy term of imprisonment for the offences committed on 9 June 1996.  Clauses 10 to 13 of the Respondent’s Statement of Facts and Contentions contain a useful summary, and which are included in these reasons as follows:

…

Substantial criminal record

10.Pursuant to a jury's verdict, Mr Rajaratnam was convicted of:

(a)sexual intercourse without consent, ie cunnilingus;

(b)administering a stupefying drug with the intention of enabling Mr Rajaratnam to commit the felony of indecent assault; and

(c)indecent assault by touching the victim's vagina without consent.

11.All the offences were committed on 9 June 1996 against the same victim who was a family friend.  The activities were captured on a video film.

12.On 18 August 2000, the NSW Supreme Court (Judge Sperling) sentenced Mr Rajaratnam to imprisonment.  The sentences were quashed and substituted by the NSW Criminal Court of Appeal on 25 July 2003 because it found that the sentences imposed by Judge Sperling were doubled up to some degree.

13.On 25 July 2003, the NSW Criminal Court of Appeal sentenced Mr Rajaratnam to:

(a)4 years imprisonment for sexual intercourse without consent, ie cunnilingus;

(b)5 years imprisonment for administering a stupefying drug with intent to enable him to commit an indictable offence; and

(c)6 months imprisonment for indecent assault,

and allowed a 2 year parole period such that Mr Rajaratnam was eligible to be released on parole on 15 February 2006.  To date, Mr Rajaratnam has not been released.

…

6.       The sentencing remarks by His Honour Mr Justice Sperling in the Supreme Court of New South Wales Criminal Division (G p37-48) given on 18 August 2000 are of such importance that they are included in full in these reasons as follows:

70075/98 - REGINA v T A

SUPPRESSION ORDER RELATING TO COMPLAINANT AND PRISONER

NON-PUBLICATION ORDER

SENTENCE

HIS HONOUR:  The prisoner has been convicted on three counts, first that on 9 June 1996, had sexual intercourse with the complainant (who has been referred in these proceedings as TC) without her consent.  Secondly that on the same date he administered a stupefying drug to her; namely a combination of propofol, oxazepam and midazolam with intent to enable him to commit an indictable offence, namely to indecently assault TC and thirdly that on the same date he assaulted TC and at that time committed an act of indecency upon her.

The intercourse alleged under the first count was cunnilingus.  The intended indictable offence under the second count was the act of indecency under the third count.  The assault and act of indecency under the third count was touching the vagina.

The maximum penalties for these offences are respectively imprisonment for 14, 25 and 5 years.

The acts of the prisoner relied upon by the Crown were recorded by the prisoner on video film.  The film was admitted into evidence.

As to the first count there was no doubt that cunnilingus occurred.  The issue was, whether that was knowingly done without consent.  The verdict of the jury establishes that there was an absence of consent and that the prisoner knew that was so or was recklessly indifferent.

As to the third count, there was no doubt that subsequent to the episode of cunnilingus, the prisoner touched TC's vagina and that he did so without consent.  That was an assault and an act of indecency.  Again, the jury's verdict establishes that there was an absence of consent and that the prisoner knew that was so or was recklessly indifferent.

As to the second count, the jury's verdict establishes that the drugs specified were administered, that they were in combination a stupefying drug and that they were administered with the intention of enabling the prisoner to commit the felony of indecent assault established under the third count.

The background of the case was largely common ground.  The prisoner was born on 7 November 1968.  At the time of the events he was 28 years of age.  He was a medical practitioner employed at Liverpool Hospital.  TC lived with her mother.  The prisoner boarded at the house.  The prisoner's family and TC's family were well known to each other.  As at June 1996, TC was 22 years of age.

The plaintiff had returned on 8 June 1996 from a trip to India.  The plaintiff and TC were alone in the house.  TC's mother was overseas.

The accused did not give evidence at the trial.  I was impressed with TC as a witness.  I accept her evidence as having been truthful and reliable in all relevant respects.

There had been no previous sexual familiarity between the prisoner and TC.  She had a steady boyfriend.  She was not interested in the prisoner sexually.  The prisoner on the other hand was very much attracted to TC.

The drugs initially administered by the prisoner to TC were benzodiazepines.  These are a sedative drug which in sufficient quantity impair cognition, disinhibit, make the person compliant and produce amnesia for the period under the effect of the drug and sometimes for a short period beforehand.  Benzodiazepines were administered orally in tablet form and then intravenously via a cannula in the wrist.  The episode of cunnilingus occurred while TC was under the effect of these drugs.

Propofol is a short acting general anaesthetic.  It is administered intravenously.  The later episode of indecent assault occurred while TC was unconscious immediately following the administration of that drug.

On sentence, counsel for the prisoner did not dispute and could not dispute that the sexual acts were done without consent and that the prisoner knew that was the situation, or was recklessly indifferent.  He submitted, however, that it was not established that the administration of the drugs was other than consensual.  It was submitted that I would then not find that the sexual activity which ensued was planned rather than being spontaneous on the prisoner's part.

I reject this approach.  I find that what happened was planned by the prisoner.  He had told TC before going on the trip to India that he should give her a vaccination against meningococcal infection.  TC worked in a nursing home.  The prisoner said it was to protect her patients against contracting the illness, which he said he might bring back from India and which she might then contract from him and pass on to them.

On the evidence, this was nonsense.  Such a vaccination would not have prevented TC from carrying the disease.  Then on the morning of 9 June, the prisoner went to Liverpool Hospital where he worked.  He either collected the drugs and equipment on that occasion or he brought them home before going on his trip, perhaps some of each.  He had no occasion to have these drugs and equipment at home for any professional reason.

On 9 June 1996, the prisoner gave TC an injection.  He said it was the vaccination.  It might have been.  The prisoner told TC that the first of the benzodiazepine administered to her, which was in tablet form was to relieve the pain from the vaccination injection.  That was not the purpose.

Once partially sedated by the benzodiazepine in tablet form, the prisoner was able to pass a cannula and administer further benzodiazepine intravenously followed by more by mouth.  This sedated TC further.  It was then that the episode of cunnilingus occurred.

Later the propofol was injected via the cannula producing complete unconsciousness and that was followed by the incident of indecent assault.  At this stage TC suffered a respiratory arrest and had to be resuscitated.  That interrupted whatever it was that the prisoner intended to do while TC was unconscious.  It cannot be that he intended only to touch the vagina.  But because that is all he is convicted of intending, any more heinous intention cannot be held against him.

I find that TC had not asked for these drugs beforehand and that they were administered to her by the prisoner by trickery and with the intention of enabling him to do what he did without TC's consent.  The course of conduct which included the three offences was planned and premeditated.

There was some evidence relied upon as indicating that TC had requested the drugs beforehand and that the prisoner was prevailed upon to administer them against his better judgment.  I need not review that evidence.  It pales into insignificance against the sworn evidence of TC that she made no such request beforehand and the absurdity of the suggestion that she requested the propofol in particular with a clear mind.

She did request more of the benzodiazepine when she was seriously affected by that drug and she may have been complicit in the administration of the propofol when similarly affected.  That says nothing for the suggestion that the drugs were requested beforehand, that is, before she became affected by the initial and further administration of benzodiazepine.

The prisoner falsely sought to cover up what had occurred by saying that he had given TC the drugs at her request.  Apparently he thought TC would not remember what happened due to the amnesia caused by the drug.  As was expected, TC had only patchy recall for the period under the effect of the drugs.  She had no recall for the two incidents of sexual behaviour which provided the basis for the charges.  They would never have come to light but for the video recording made by the prisoner.  TC knew about the video.  When the police asked for it, the prisoner said he had wiped the film at her request.  That was not true.  The film was recovered by the police from the prisoner's room.  I should add that the prisoner had made no attempt to hide it, but he might not have expected the police to become involved.

There was a bizarre aspect of the prisoner's actions and words during this episode.  At times when TC was obviously so affected by the benzodiazepine that she could not attend to or comprehend what the prisoner was saying or what he was doing in any meaningful way, his actions and words were done and spoken in a way that assumed an alert and willing sexual partner.  It was as if the prisoner was acting out a fantasy of consensual sexual activity.  Perhaps he was.

I mention this aspect of the matter in order to make clear that there is no suggestion of rough sexual behaviour.  Indeed in the bizarre way I have mentioned the contrary is the case.  Furthermore, TC was not distressed at the time about what was happening, due to the effect of the drugs she was given.

None of this operates in mitigation.  I mention these matters in order to characterise as best I can the objective features of these offences.  Whilst the offences do not involve rough sexual behaviour and do not involve the victim being put in fear or being otherwise distressed at the time, the offences themselves are objectively very serious offences.  The administration of a drug to enable a sexual assault to occur is particularly serious.  The offences were premeditated, procured by trickery and there was then an attempted cover up.  There was the abuse of the professional privilege of access to these drugs and abuse of a professional role in using that role to trick the victim into what occurred.  There was the abuse of a relationship of trust, both professional and personal on a family level.  These are serious matters of aggravation.

The use by a medical practitioner of a drug to disable a person in order to facilitate or enable the offender to carry out a sexual act on that person is of particular significance.  This was what happened in relation to the second of the two sexual acts relied upon under the second and third counts.  As to the second count, the bare fact of the administration of a general anaesthetic agent by a medical practitioner in order to enable him to perform a sexual act without consent leaves one aghast.

TC's victim impact statement reveals, understandably and perhaps to be expected, that the affect of these offences on her has been considerable.  I accept that TC is to this day fearful of doctors and any person in authority and that she suffers from nightmares and other emotional symptoms.  She continues to receive counselling.  She was unable to drive for two years.  She is unable to enter the room in the house where the events occurred.  Her graduation from university was delayed by a year.  She had to take excessive leave from her employment including unpaid leave.  She left the job she had at the time.  Seeing the video for the purpose of court proceedings has been very distressing for her.  She is fearful that copies may have been made by the prisoner and may get into the hands of others to her further embarrassment.  She feels demeaned by the public showing of the video in the court proceedings.  Her family relationships have been affected.  Most of her family blaming her for reporting the matter to the police.  The impact of these offences on TC has been substantial and prolonged.

Unfortunately the kind of conduct involved in this case is not altogether without precedent.  Not that I am suggesting it is common.  It is necessary that it should be made clear to any medical practitioner who might contemplate such conduct, that the penalty is very heavy.  Deterring others is an important part of sentencing practice.

It is also necessary to impose a penalty that satisfies the legitimate demand of society for the appropriate punishment of those who break the law.  Particularly laws which are intended to protect individuals against abuse of power and privilege.  There must be appropriate punishment for these offences.

I am also required to fix sentences which are appropriate having regard to considerations personal to the prisoner.  The prisoner has no criminal record.  So far as the court is aware, and I make this assumption, he had never previously put a foot wrong in his life.

As a result of what has occurred the prisoner has voluntarily given up registration as a medical practitioner.  It is unlikely that he will be permitted to practice medicine for a very long time, if ever again.  That is a collateral penalty, but little weight is to be given to it.  Where the offences involve the abuse of the offender's professional role, the loss of that privilege is not, to my mind, a significant matter in litigation.

I do not find that the prisoner is contrite in relation to these offences.  He persists in his assertion that TC requested the drugs, that the sexual activity was consensual and he expresses contrition only about misusing his professional skills.  An expression of contrition in this form is not contrition for the true gravamen of what the prisoner did.

Dr Westmore examined the prisoner.  His report is in evidence.  He also gave oral evidence at the sentencing hearing.  Dr Westmore found no mental illness, psychotic features or personality disorder as such, although he thought it likely that the prisoner had some symptoms of personality difficulties.  The prisoner told Dr Westmore that he believed TC was attracted to him, that she understood what was happening and that the sexual activity was consensual.  Consent to the sexual acts involved in the offences is inconsistent with the jury's verdicts.

Dr Westmore said that there is a lack of insight into the absence of consent.  I do not accept this approach.  It is inconsistent with the jury's finding that the prisoner knew that TC did not consent or that he was recklessly indifferent.  It is also inconsistent with what is shown on the video.  It would have been obvious to anyone, more so to a medical practitioner that TC had no capacity to consent to anything, once the drugs had been taken.  I accept her evidence that she initiated nothing beforehand.  I do not accept that the prisoner believes that the administration of the drugs was consensual, or that he believes that the sexual activity was consensual.

A short time after these events, the prisoner came to the house with drugs, medical equipment and a bucket of hydrochloric acid.  He set up an elaborate mechanism designed, he said, to administer the drugs to himself in a legal dose.  He said the acid was to be used to tip over himself as part of the suicide plan.  TC's mother and TC intervened.  The police were called and the prisoner was taken away.

I am not persuaded that this was a suicide attempt at all.  As likely as not, it was an elaborate and bizarre performance, for what psychological purpose I do not know.  If the prisoner had truly intended to take his own life, as a medical practitioner he knew how to do that quickly, painlessly and decisively.  I find no contrition for what truly occurred on the basis of that event or on any other basis.

The prisoner is by all appearances and accounts, a slightly built and mild mannered man.  He will find prison life much harder than most men would do.  I take that into account.

I am required to determine first, the sentences I would fix for each offence in isolation.  The offences were so closely related that the exercise is virtually impossible and certainly futile, but I am obliged to do it as best I can.  Were I sentencing for each offence in isolation, I would fix a sentence of imprisonment for 4 years, 5 years and 6 months respectively for the offences in the order of the charges.  There is no need to go on to specify non-parole periods.

Applying the principle of totality, I am required to tailor a set of sentences which reflect the overall criminality of the offences collectively.

I do not find special circumstances.

The prisoner was in custody from 21 June to 8 August.  He was then taken into custody again on 6 April and has been in custody since that date.  The sentences I will now impose should accordingly be dated back to accommodate the period in custody to the present time.  The relevant date for commencement of the sentence is 16 February.

Mt T C would you please stand.  For the offence of administer a stupefying drug with intent to enable you to commit an indictable office, you are sentenced to a term of imprisonment of 8 years, commencing on 16 February 2000.  I fix a non-parole period of 6 years.

For the offence of sexual intercourse without consent, you are sentenced to a fixed term of imprisonment of 4 years, commencing on 16 February 2000.

For the offence of indecent assault you are sentenced to a term of imprisonment of 6 months, commencing on 16 February 2000.

The sentences are to be served concurrently.

The earliest date you will be eligible to be released on parole is 15 February 2006.

…

7.       It is desirable also to include at least part of the judgments delivered by the Court of Criminal Appeal of 25 July 2003.  Their Honours, Chief Justice Spigelman and Mr Justice Dowd, agreed with the judgment of Mr Justice Adams; clauses 17 to 20 of the judgment by His Honour Mr Justice Adams read as follows:

…

The conviction appeals

17.It was uncontested that much of the relevant interaction between the complainant and the Appellant had been recorded by the use of a portable video camera. The prosecution relied on this recording, discovered by police after the Appellant’s arrest, for the purpose of proving the sexual conduct, the administration of the drugs and the their effect on the complainant. The defence relied on the recording to prove that the complainant consented both to the administration of the drugs and the sexual activity she later complained about. At the time of the offences, the Appellant, then twenty-seven years old, was in his first year as a medical resident at Liverpool Hospital and had lived as a boarder for over a year at the home of the complainant’s mother, where also the complainant lived. He had, on several occasions, treated members of the complainant’s family, including the complainant, with injections for various conditions. The complainant, who was twenty-one years of age, worked as a carer for elderly persons.

18.The complainant denied that she had any romantic interest of any kind in the Appellant and emphatically denied suggestions put to her in cross-examination that there had been prior sexual contact between them. She had a boyfriend at the time of the offences. The Appellant did not give evidence and there was no evidence from which it could have been inferred that the complainant’s evidence in this regard was untrue.

19.On the evening of 8 June 1996, the Appellant returned earlier than expected from a trip to India, while the complainant’s mother was herself overseas. He brought some trinkets as gifts, including a sari, for the complainant and gave them to her that evening. She put the sari on and watched a video of his trip in his bedroom. He made a short recording of the complainant and himself sitting on his bed in his bedroom. This showed some signs of physical affection, but no sexual conduct. The Appellant asked the complainant to marry him, but she refused, saying that she was too young and not interested in marriage. They talked for some hours, the complainant eventually going to bed, in her own bedroom, at about 6am. The complainant eventually rose at about 2pm. The Appellant told her that he should give her an injection. Before he went overseas he had mentioned that, when he returned, he would need to vaccinate her against the possibility of becoming infected with any disease that he might pick up whilst in India, saying that she might pass it on the old people she worked with. Accordingly, she agreed. He injected her in the upper arm and gave her some tablets to take to relieve the pain from the injection. The complainant said that, from that point, she had no memory of what occurred except waking up briefly twice. On the first occasion, she found a cannula taped to the back of her wrist, asking what it was for and being given tablets to take. The tablets were “very similar”, she said, to the oxazepam tablets that had been tendered. (Shortly after the complainant went to the police, a blood sample was taken, showing oxazepam residue.) The complainant said she felt “sort of semi-conscious”. She recalled she was on the floor in the Appellant’s bedroom, wearing only a tee-shirt. On the second occasion, she said she found herself lying on the floor and said to the Appellant that she had to go and wash her hair. He told her not to move since she had “sort of had a cardiac arrest and you have stopped breathing”. She said she did not believe him and recalled that the Appellant rewound the video and showed her the part where he was trying to resuscitate her. The complainant said she remembered nothing else.

20.In fact, the complainant had been in the Appellant’s company, he naked and she almost so, for something in the order of two hours. He had performed oral intercourse and other acts of sexual intimacy on her during this period. As I mentioned, this was video recorded. There was also some conversation between them. If one considered only the words spoken as appeared in the tendered transcript, it might be possible to make a strong case that the complainant was, at some points, both able to and did give consent to ingestion of some drug and acts of an intimate character, such as caressing her breasts and masturbating the Appellant. However, the depiction in the video recording gives an altogether different picture of events, especially if the jury accepted, as they were certainly entitled to do, the evidence of the complainant, in substance, that although she did voluntarily take what she thought was a vaccination and pain-killing tablets at the outset, at the Appellant’s suggestion, she was thereafter so affected that she was unaware and had no memory of the insertion of the cannula, later administrations of other drugs and the sexual conduct performed on her by the Appellant. Traces of propofol were found in the complainant’s blood sample, whilst the Appellant himself identified midazolam as being injected via the cannula. The undisputed medical evidence was that the drugs administered by the Appellant would have a profound effect on the ability of the person to whom they were administered to retain memories, especially short term memories, so that he or she would not be expected to remember very much of what had happened while the drugs were being ingested for a period of probably an hour or two after the last dose. Even memory of what occurred in the minutes or even hour leading up to the first dose may be adversely affected. Generally speaking, the drugs that were administered to the complainant were sedatives used, amongst other things, to make patients cooperative, suggestible and compliant (behaviour very evident on the video), especially when it is proposed to undertake painful procedures, such as relocating a dislocated shoulder, that a patient might otherwise resist; the ability to make rational decisions will also be markedly impaired and the patient become confused and disorientated. However, the actual effects of the drugs on particular individuals was, to some extent, uncertain and the degree to which their higher or cognitive functions – those dealing with knowledge and consent – were impaired varied, possibly significantly. Considering the nature of the drugs, it strikes me as fantastic to suggest that the complainant willingly took them as some kind of experiment. Nor was it suggested in cross-examination that there had been a prior conversation in which this experiment had been agreed to, let alone that the nature and likely effects of the drugs had been explained to the complainant. It goes without saying that no such conversation was recorded: the video commences with the complainant almost naked and the Appellant completely so, except for his socks.

…

8.       Specifically as to sentence, clause 34 of the judgment by His Honour Justice Adams reads as follows:

…

34.Mr Byrne SC submits that the offences were all part of the same episode and thus should have been imposed as concurrent sentences but that, if some accumulation was necessary, the process should not have resulted in such an increase as the head sentence of eight years represents, being almost the entire accumulation of the first two sentences. He submitted that, on the assumption that the individual sentences for all offences were rightly assessed by his Honour, the principle of totality should have resulted in a significantly more modest accumulation than was imposed. In my opinion, this submission does not give sufficient weight to the consideration that the two sexual assaults, especially the act of sexual intercourse, were not only serious offences but were substantially different in kind from the second count, which did not contain as an element any act of sexual intimacy. The mere fact that a number of offences are committed in the course of a single episode of criminality does not mean that sentences should necessarily be concurrent: it means that the ultimate effect of the sentences should not exceed the total criminality involved. Much depends on the crimes actually committed. To my mind, committing sexual offences whilst the victim has been drugged adds a significant degree of culpability to the administration of the drug intending to commit the offence. It is also relevant to note that the intended offence alleged in the second count was indecent assault, whilst the applicant committed both sexual intercourse and an indecent assault. The applicant’s criminality was all the more grave, in my view, because the administration of the drugs was potentially injurious of itself and in fact caused so serious a degree of unconsciousness as to necessitate resuscitation. Furthermore, the deterrent effect of a slight accumulation, as proposed by the applicant, would be significantly eroded. Having administered the stupefying drug, the offender would then suffer little more punishment by moving to the next step and actually committing the intended or other sexual assaults. I consider that the distinction between the offences is real and punishment for both should reflect the considerable additional criminality involved in fulfilling the intention with which the drug is given.

…

9.       It will be noted then that the crimes committed by the Applicant were treated as very serious indeed.  The sentencing remarks by Sperling J contain specific references to the damaging effect of the crimes in question on the victim (referred to in the sentencing remarks and in these reasons as “TC”); Sperling J found also that the Applicant was not contrite in relation to the offences.

10.     At a directions hearing held in August 2006, the Tribunal suggested to the Applicant that it was highly desirable that he be represented at the hearing, which in the event took place on two days; 16 October 2006 and 18 October 2006.  The Tribunal also recommended to the Applicant that he consider the desirability of obtaining a full psychological assessment.  In the event neither of these recommendations was adopted.

PART B - the evidence of the applicant

11.     Exhibit A8 is a lengthy document made even lengthier by its appendices and in particular Appendix A which is an attack on the New South Wales CUBIT Program (“CUBIT”); CUBIT is an acronym for “Custody Based Intensive Treatment for Sex Offenders”.

12.     Although the Applicant was informed, and on a number of occasions, that in accordance with Minister for Immigration & Multicultural Affairs v “SRT” [1999] FCA 1197 the Tribunal was bound to accept the sentencing remarks and other reasons set out in the judgments both of the Supreme Court and the Court of Criminal Appeal referred to in Part A, the Applicant nonetheless in the course of his evidence presented a version of the facts which was different and to an extent altogether inconsistent with the findings of the judges. A good quick summary of the sentencing remarks by Sperling J is as a matter of convenience, and although it involves a degree of repetition, set out in clause 20.2 of the Respondent’s Statement of Facts and Contentions as follows:

…

20.2Mr Rajaratnam was a medical practitioner employed by Liverpool Hospital when the offences were committed.  The sequence of events, as set out in Judge Sperling's sentencing comments, may be summarised as follows:

(a)Mr Rajaratnam collected the relevant drugs and equipment from Liverpool Hospital even though he had no occasion to have them at home for any professional reason;

(b)Mr Rajaratnam administered benzodiazepines to the victim by tablet form and intravenously to sedate her, before which time he lied to her that it was for vaccination against meningococcal infection (in preparation for her trip to India); 

(c)the episode of cunnilingus occurred while the victim was under the effect of the benzodiazepines; 

(d)after the administration of benzodiazepines, Mr Rajaratnam administered propofol to the victim which made her unconscious, and that was followed by the incident of indecent assault;

(e)the victim then suffered a respiratory arrest and had to be resuscitated.  Judge Sperling commented that this interrupted whatever Mr Rajaratnam intended to do while the victim was unconscious.  "It cannot be that he intended only to touch the vagina";

(f)Mr Rajaratnam then lied to the police that he had wiped the film at the victim's request.  The film was subsequently recovered by the police from Mr Rajaratnam's room.

…

13.     The Applicant originally came to Australia from Malaysia in 1988 in order to enrol as a fee-paying medical student at Adelaide University.  His A levels obtained in Singapore were apparently sufficient to procure admission for him to the faculty of medicine although the fact that he was originally a fee-paying student may have been a contributory consideration.  At some point in time thereafter the Applicant was granted residency in Australia and in consequence of which he became entitled to take advantage of, and did in fact take advantage of, the benefits provided by the HECs scheme.  After graduating as a doctor, the Applicant served his internship year (1995) in Sydney and thereafter continued as a resident in Sydney.  While in Sydney, the Applicant lived at the home of TC.  His mother and TC’s mother were friends in Malaysia and indeed according to the Applicant, entertained some hopes that they might marry.  The Applicant said that arranged marriages in the community of which he is a member are not uncommon.  However, TC did not entertain any romantic feelings towards him and indeed had a boyfriend. (I again refer in this context to the sentencing remarks of Spurling J). The Applicant said that after the events in question and which gave rise to his convictions, TC went to a party with that boyfriend and of whose existence he was not previously aware.  (As to how living in a household with TC he could be unaware of the fact that she had a boyfriend was not clear.)

14.     The Applicant’s evidence was that TC expressed interest in experimenting with the drug in question and so that it was administered (intravenously) with her consent.  Indeed, the proceedings lasted for some time and during a small part only of which she was unconscious.  He said also that the proceedings were recorded on video and that it was their joint desire that this should occur.

15.     In cross-examination the Applicant admitted that it became necessary for him to revive TC through mouth-to-mouth resuscitation.  He admitted indeed that this occurred after some minutes of unconsciousness and that a further period of unconsciousness might have been life threatening.

16.     It is not necessary for me to deal in detail with the Applicant’s evidence as to the offences which gave rise to the convictions.  Suffice it to say that his version of events did not, as I have said, accord with the events set out in the judgments.  In particular, his attempt to assign a considerable share of the responsibility to TC was entirely without merit.  To the extent that his evidence differed from the facts set out in the judgments (and his evidence differed quite markedly) I reject it.  I do so in particular but not only because of the judgment in SRT (supra). It is relevant to note that he did not give evidence at the criminal trial.

17.     The Applicant has never sought to become an Australian citizen.  He said that “nobody was taking citizenship at the time” and that neither TC nor her mother is an Australian citizen.

18.     In response to a notice of intention to cancel his visa the Applicant wrote to the department (G p34); his letter dated 13 March 2006 commences (in the first three paragraphs) as follows:

An unfortunate series of events which occurred in June, 96 appears to be the only basis for DILGEA’s intention to cancel my visa.

I appreciate that my conduct as described by Justice Spigellman [sic] was truly appalling.  I truly regret these events and accept the courts decision and punishment.  I also accept that I was solely responsible for these events.

The events that took place involved someone I considered to be a very good friend.  While the consequences of my actions were considerable, the root cause was a deficiency in interpersonal skills

…

19.     It will be noted then that the Applicant categorised the events in question as an “unfortunate” incident.  Mr Chelliah, the only character witness who gave evidence orally on his behalf, referred to those events as a mistake.  Neither characterisation was in any respect valid.  The Applicant obtained the drugs in question, unlawfully, from the hospital where he was employed and he administered them on the false basis that he was vaccinating TC against illness. . While the Applicant did indeed express regret for what occurred, that expression of regret must be considered in the context of his contention in evidence before the Tribunal that the drug was administered consensually and that the video recording was made consensually.  That version is in any event contradicted by the second paragraph of G p34 in which the Applicant accepted sole responsibility for the offences.  It is clear then that the Applicant’s attitude as to the circumstances in which the offences were committed has differed from time to time.

20.     The Applicant said that TC was an occupational therapist. The sentencing remarks of Sperling J indicate that TC was obliged because of what occurred to miss a year of University.  When asked what had happened in relation to TC and whether in the intervening period she had married, the Applicant answered that he had heard nothing at all about her.  In a tight-knit community such as this, it would surely have been possible to ascertain what had occurred.  Sperling J noted that TC suffered very considerable harm indeed; as Sperling J found, I too am of the view that the Applicant has not in reality expressed true contrition; that this is so is indicated in the clearest possible terms by the nature of the evidence as to the offences given before the Tribunal.

21.     As to why these abhorrent crimes occurred is still unclear.  The Applicant said in evidence that his good examination results in Singapore and which were a cause of his admission to medical school, were achieved by hard work rather than brilliance and that in consequence he was socially somewhat weak.  I doubt that this was so.  He presents as a man of very considerable intelligence, as one who is articulate and above all as one with quite considerable charm and charisma.  That he could have acted in so predatory a fashion against TC is all the more difficult to comprehend.  Assuming for a moment that in his community arranged marriages are not uncommon, a presentable and articulate doctor would surely be a desirable husband and as such sought out by mothers of suitable daughters and whether in Malaysia or elsewhere.

22.     When the Applicant first came to Australia his parents, who currently live in Malaysia, also came to Australia but returned to Malaysia after about a year.  The Applicant’s brother Valamuragam Rajaratnam pursued much the same route as the Applicant did; he too came to Australia and attended Adelaide University as a fee-paying medical student, and his brother is now a medical doctor practicing in Sydney.  When asked why his brother was not furnishing evidence or attending the hearing, (and whether in the context of hardship or otherwise), the Applicant replied that his brother is a busy doctor and that he has three young children.  That seemingly innocuous statement was quite clearly untrue and coming from a man of the Applicant’s intelligence, altogether unacceptable.

23.     As inexplicable as the Applicant’s conduct was in relation to the offences his conduct in prison has been in some respects and if anything even harder to comprehend.  He was originally in a maximum security prison before being transferred to Long Bay.  The Applicant has repeatedly refused to take part in CUBIT.  In fact, much of Exhibit A8, and in particular Appendix A to Exhibit A8 is a lengthy (and uninvited) critique of it.  The first three paragraphs of Appendix A read as follows:

The most interesting part of this review of the NSW CUBIT program is the discussion and suggestions for improvement at the end.  However, it is impossible to appreciate these factors without gaining a comprehensive understanding of the shortfalls.  These shortfalls can however be roughly divided into 2 categories:

1 )Poor Image

2 )Defective Product

Poor Image

How many people are going to volunteer to undertake a ‘SEX OFFENDER treatment program’?  There may be political reasons for adapting this terminology but it MUST be realized that, in addition to being hurtful, it is unlikely that the terminology adopted here is going to inspire any enthusiasm among potential candidates.

Unfortunately, the terminology used is just a symptom of a significant quagmire.

…

24.     The Applicant said in evidence that he could not undertake CUBIT either prior to or even at this time but that he intended to do so when he has completed degrees in accounting and computer science.  He said that although he was removed (at his own request) from the medical register for a period of five years, he has no intention of seeking re-admission because he would not have the necessary confidence required to practice medicine. (The Tribunal here notes that the offences did not occur in the context of his medical practice).  He intended instead to pursue a career in accounting and computing and in particular by way of assistance to the medical profession.  He said that he expected to complete one degree within the comparatively near future and the other (hopefully) at some time next year and that when he had completed those degrees he would undertake CUBIT only thereafter.  The evidence before the Tribunal indicates that CUBIT can take a period of time, which varies depending on a number of factors, but that the barest minimum period is six months.  Evidence to this effect was given by Ms Bel, a clinical psychologist, although evidence to the effect that the minimum period is 10 months was given by Mr Fitzsimmons, a probation and parole officer.  It might not be altogether impossible for the Applicant to undertake CUBIT after completing his degrees within his remaining period in prison but given that he is scheduled for release in February 2008 the time period available will inevitably, and if possible at all, be very tight indeed.

25.     That the Applicant had reservations about CUBIT resulting in a lengthy critique of it by him (even though he has no first-hand knowledge of it), was, in my view ill-advised for another reason.  The Applicant became eligible for parole in February 2006.  The evidence of Mr Fitzsimmons, referred to more fully later in these reasons, indicated in clear terms that parole would not be granted to a sex offender who had not undertaken CUBIT.  In the result the Applicant’s refusal to undertake CUBIT has had the effect that his confinement in prison has been extended and quite probably unnecessarily so.  Assuming that he had completed CUBIT, it is at least possible (and perhaps even likely), that he would have been paroled in February 2006.  There are other factors that might have operated in his favour.  The Applicant was able to furnish assistance in connection with the prison’s computer and software programmes, and so much so that he was allowed unsupervised access to confidential information.  Ms Bel expressed concern that this occurred but at the same time accepted that the Applicant demonstrated an ability to inspire confidence and trust.  It is for this reason that his refusal in respect of CUBIT coupled with his lengthy, unsolicited critique of it was so ill advised.  There was no evidence before the Tribunal as to what precisely is comprised in CUBIT, nor is there any clear evidence as to its rate of success.  (The Applicant in Exhibit A8 expressed some very firm criticisms in this latter context.)  The solution for the Applicant would surely have been for him, whatever his reservations, to have undertaken CUBIT; his successful completion of CUBIT might have led to results that were positive for him and including, but not limited to parole.  As important is the fact that his successful completion of CUBIT (if that had occurred) might have led to a finding that the risk of recidivism was very slight.

26.     Why then did the Applicant act in a manner that was so adverse to his own best interests?  The answer is that I do not know.  The Applicant is, as I have said, a man of ability and charm.  If he could so impress the prison staff that he could gain unsupervised access to confidential information, he could presumably have completed CUBIT successfully.  The Applicant displayed a degree of arrogance.  As subsequently emerged, he could have obtained financial assistance from his family in Australia to enable him to obtain suitable counsel and also to enable him to obtain a full physiological assessment.  He stated that he did not do so on the basis that he preferred to rely on his own resources.  The Applicant’s uncle, Mr Chelliah who gave evidence, in point of time prior to the Applicant giving evidence, indicated (towards the end of the hearing and from the back of the hearing room) that the family resented any suggestion that they had refused to furnish financial assistance.  I accept that financial assistance would have been forthcoming if sought and that the Applicant chose not to ask for it.  The Tribunal expressly notes that it makes no suggestion of any kind to the contrary.

27.     The Applicant said that he had to undertake other qualifications in order to be able to earn a living on his release.  That statement is difficult to reconcile with the family’s evidence as to the assistance it could and would render coupled with the fact that the Applicant’s parents plainly have means; it must be remembered that both the Applicant and his brother came to Australia originally as full fee-paying students in the medical faculty of Adelaide University.  The Applicant’s own evidence was that he is on perfectly good terms with his parents and that he would go to live with them if obliged to return to Malaysia.

PART C - the evidence of mr chelliah (and also the other character witnesses)

28.     The only character witness who gave oral evidence is Mr Chelliah.  He is one of eight signatories to Exhibit A1, which is repeated in full in these reasons as follows:

Dear Sirs,

Re: Application for continuation of permanent residence for Mr. Vicknasvaran Rajaratnam.  Application number: N2006/1081.  Case officer CSO7

We the undersigned, as immediate family members of Mr. Vicknasvaran Rajaratnam appeal to you for the following reasons listed below for your consideration:

Viknaswaran [sic] has been living in Australia for the last 18 years; and as a result will be isolated with no supportive network if he is to be sent back to Malaysia.  His only sibling is a medical practitioner who is living in Sydney, Australia with his wife and three young children.

Vicknasvaran is in the process of completing a double degree in accounting and Information Technology by June 2007.  Being a multi-talented young individual, his skills will be of great value to the community.

Vicknasvaran also has a large extended family and friends living in Adelaide, Australia, who will be of great help and support in every aspect.  Being a family of professionals, we would be able to guide and support him in every way including financial assistance to resume his career and become a useful and responsible member of the community.

Although this has been a great emotional strain on our family since Vicknasvaran’s conviction we do however, acknowledge that a wrong has been done and we respect the Australian Legal System.  In saying this, our family strongly beliefs [sic] that Vicknasvaran has paid a very high price indeed for this out of character digression.  Not only has Vicknasvaran’s liberty been taken away for some 8 years but he has no doubt lost any chance of practicing medicine again.

Vicknasvaran has made every indication to our family that he wishes to remain in Australia either permanently or temporarily to visit his family.  It does see draconian that Vicknasvaran now has to suffer another penalty to his freedom of movement when we had hoped that all people deserve a second chance for him to engage in the Australian community again.

Our family could understand if Vicknasvaran had a long criminal history but, as you can see from all documentation Vicknasvaran has shown an exemplary life.  Vicknasvaran and our family have a hope that your tribunal can acknowledge that Australian Citizens are given the benefit of the doubt that upon release from prison that they are encouraged and helped to re-integrate into the community.  We have read that may [sic] former prisoners never re-offend and live productive family lives.

All reports concerning Vicknasvaran have stated that his likelihood of re-offending is very marginal.  Vicknasvaran should now be given the opportunity to put the past behind him and get on with helping his family and becoming productive not only in the Australian economy but also Australian society

Thank you.

Yours truly,

…

29.     Mr Chelliah is a man who is 65 years of age.  His wife is a doctor and so are two of his sons.  Other members of his family are educated people and this is so in respect of Mr Chelliah himself.

30.     Mr Chelliah made it clear that the family could and would provide financial support and also support in finding employment.  It will be noted that Mr Chelliah referred in Exhibit A1 to “all documentation”; his attention was drawn to the fact that much of the character evidence is contained in documentation dated after the date of Exhibit A1.  His answer was that it was produced to him before Exhibit A1 was executed to ensure that it reached the correct destination and so as to avoid certain difficulties that had occurred previously.  The nature of those difficulties was not explained.

31.     Mr Chelliah, as I have said, characterised the relevant behaviour (inaccurately) as “a mistake”, and out of character. The basis upon which he could make such a statement (and this applies to the other character witnesses where relevant) is not clear.

32.     The evidence contained in Exhibit A1, and for that matter all the other character evidence, suffers from a number of defects.  To a considerable extent, the conduct of the Applicant was perceived as mistaken.  Not one of them addresses the nature of the actual conduct that gave rise to the Applicant’s incarceration.  In many cases there is an emphasis on the fact that the Applicant has paid his debt to society.  There are references to the fact that his conduct was not in character.  It is doubtful whether Mr Chelliah appreciated that the Tribunal is not concerned with penal aspects but rather with the question of whether the visa cancellation should stand.  There is no reference in any of the evidence to why it occurred and why the witnesses are so certain that a recurrence cannot occur.

33.     I would like it understood that I found Mr Chelliah to be impressive.  He is the head of a very successful family.  His support of his nephew is altogether praiseworthy.  He probably (although this was not specifically so stated) contributed to the very considerable costs incurred in the criminal proceedings both at first instance and on appeal.  It is a pity that his influence was not sufficient to ensure proper representation for the Applicant but it is altogether possible that he was not able to overcome the Applicant’s insistence on representing himself.

34.     It will be seen then that the character evidence, put in general terms, was of limited assistance to the Tribunal.

PART D - the evidence of mr vincent fitzsimmons

35.     Mr Fitzsimmons’s witness statement dated 3 October 2006 entitled ‘Immigration Report’ is as set out previously contained in Exhibit R1 as annexure ‘A to the Respondent’s Statement of Facts and Contentions’.  In respect of his report, I include its content under the heads of “Program Participation”, “Relevant Attitudes of Inmate”, and “Assessment” as follows:

…

PROGRAM PARTICIPATION

Alcohol and other drug

There is no evidence that Mr Rajaratnam has, or has had, substance abuse issues.

Psychological/Psychiatric

There is no evidence that Mr Rajaratnam has suffered with or is suffering from any mental disorder or disability.  In his report dated 21 July 2000, Dr Westmore maintained that "the sexual offences committed by Mr Rajaratnam were not the result of an underlying psychiatric condition" and that "on the history, his ability to form, maintain and understand social and sexual relationships is dysfunctional."  This is an area which Mr Rajaratnam admits he will need to address upon his release from custody.

Offence-Targeted Programs

Mr Rajaratnam has avoided participating in the sex offender programme (Custody Based Intensive Treatment - CUBIT), citing various intellectual arguments as to its effectiveness.

Education

As Mr Rajaratnam will be unable to continue in the medical profession, he is currently enrolled in undergraduate studies in Information Technology and Accounting, through long distance education with Monash University.  He intends to seek employment in these fields upon his release from custody.

RELEVANT ATTITUDES OF INMATE

Offence

Mr Rajaratnam states that he accepts partial responsibility for the offence, citing the victim as a willing participant.  During interviews he had a tendency to intellectualise past events and rationalise his behaviour by discounting and minimising the facts, as well as underestimating the impact of his actions on the victim.  Consequently, Mr Rajaratnam has avoided accepting responsibility for the offence.

Victim of the Offence, including Victim's Family

Until recently Mr Rajaratnam has refused to participate in CUBIT.  He has subsequently stated that he will consider applying for the programme in December of this year.  He has stated to the author that completion of his university courses is more important to him than participation in CUBIT.

Deportation

Until recently Mr Rajaratnam maintained that he was happy to be deported back to Malaysia.  His reasons for lodging an appeal against his deportation are unknown.

…

ASSESSMENT

The inmate appears to be an intelligent man with good academic abilities who has availed himself of the educational opportunities in custody.  However, he is yet to address his offending behaviour.  Indeed, he has stated that applying for the CUBIT Programme is low on his list of priorities, although he has stated that he will consider applying for the programme in December of this year.  In addition, Mr Rajaratnam does not have suitable post release plans in place.

…

36.     Mr Fitzsimmons has been in the employ of the Probation and Parole Service for some 18 years.  His evidence was demonstrably fair and honest.

37.     Put in succinct terms, Mr Fitzsimmons did not feel that he could express any absolute views as to the likelihood of recidivism.  His clear and repeated statement was that the Probation and Parole Service regarded as crucial that the Applicant complete CUBIT and that accordingly it cannot be said that until he has done so he has addressed the nature of his offending behaviour.

38.     Mr Fitzsimmons referred to the fact that Mr Schou, a psychologist in the prison service had come to much the same conclusion, namely that it was vital that the Applicant address his offending behaviour by attending CUBIT.

39.     It is relevant to note that Mr Fitzsimmons thought that the minimum period for CUBIT is 10 to 12 months (leaving aside the need for custodial maintenance) and that it is highly unlikely that it could be completed in only six months.

40.     Mr Fitzsimmons was asked to consider clause 1.4.2 of Exhibit A8, which suggests that the Applicant was invited to prepare a critique of CUBIT.  He emphatically denied that his department would seek a critique from a sex offender and said that that statement by the Applicant was ridiculous.

41.     Mr Fitzsimmons said also that Mr Schou (the psychologist previously referred to), used ‘Static-99’ in order to assess the recidivism risk in respect of the Applicant and that originally he, Mr. Schou, assessed the risk, albeit on a tentative basis, as moderate to low.  He said further that in June 2006, Mr Schou informed Mr Fitzsimmons that he had re-assessed the risk because of the dynamic factors and the Applicant’s sex attitudes, (although he, Mr Schou, had not had any further consultations with the Applicant), in the light of the report by Ms Bel (Exhibit R2).

42.     Mr Fitzsimmons said that in his view the Applicant remained a high risk because he had not “made changes” and in particular because he would not take the CUBIT program or discuss his offences.  He considered that the Applicant has avoided consideration of the seriousness of his conduct.

PART E - the evidence of victoria bel

43.     During the course of Mr Fitzsimmons’s evidence there were a number of references to a report by Ms Bel dated 7 July 2006 and which in the result was tendered as Exhibit R2.  Her report is in my view significant.  I include its content under the heads of “Institutional Behaviour”, “Psychosexual Development”, “Adult Sexual History/Psychosexual Functioning”, “Discussion of Sexual Offences”, “Assessment of Risk”, “Dynamic risk factors”, “Further Considerations of Dynamic Risk”, and “Conclusion and Recommendations” as follows:

…

Institutional Behaviour

The Offender Management System (OMS) lists four internal charges for Mr Rajaratnam during his incarceration:

-Fail to Comply with Correctional Centre Routine (6/3/06);

-Disobey Direction (6/3/06);

-Disobey Direction (14/1/04);

-Fail to Comply with Correctional Centre Routine (11/4/02)

Perusal of his case management file indicates that Mr Rajaratnam has received mixed reports from staff.  Apart from the internal charges listed above, Mr Rajaratnam has received numerous warnings about various failures to comply with correctional centre routine, including lateness, cell cleanliness and on one occasion installing unauthorized programs on Departmental computers.  He had apparently received the latter from teachers who were unaware that he was not entitled to this material.  On a number of occasions, Mr Rajaratnam has been described as “arrogant and rude to officer” (6/3/06), “argumentative and unco‑operative” (24/12/03), “rude and arrogant to officer” (14/1/04) and “inmate seems to have idea that he can do what he wishes” (13/4/04).

Mr Rajaratnam has typically received very positive reports regarding his work with computers; he has routinely provided advice and practical support to staff, particularly in the Education block where he has worked for some time.  Unfortunately, this appears to have contributed to the negative attitudes and behaviour outlined above.  Mr Rajaratnam’s recognized computer skills and usefulness to Departmental staff has led to a blurring of boundaries and an apparent perception by Mr Rajaratnam that the restrictions the apply to other inmates do not apply to him.  Of concern is the fact that this appears to be a very similar dynamic to that involved in his offending behaviour.

Psychosexual Development

When asked how he learned about sex, Mr Rajaratnam was initially dismissive, stating that he couldn’t remember.  When pressed, he reluctantly responded “friends, media, a bit from everywhere”.  He claimed to not remember how old he was when he received this information, nor how he thought or felt about sex.  Similarly, he stated that he “can’t remember” what kinds of sexual games he played with peers as a child.  Asked how old he was when he first began to masturbate, he responded “no idea”.  Questioned about his thoughts and feelings about masturbation at the time, he replied that he “probably found it pleasurable, but I can’t remember”.

Adult Sexual History/Psychosexual Functioning

Mr Rajaratnam indicated that his first sexual experience consisted of kissing a female friend when he and the friend were “17 or 18 years old”.  He denied ever having any sexual contact with males and identifies as heterosexual in his orientation.

When asked whether he had ever engaged in intimate sexual activity resulting in orgasm with an adult woman, Mr Rajaratnam responded “abstain”.  In response to subsequent questions on his sexual history, he indicated that his first intimate sexual activity with an adult female (at least 16) took place when he was in his late teens and his partner was “more than 16”.  Asked about the approximate number of different adult women with whom he has engaged in consenting intimate sexual activity, Mr Rajaratnam stated “one or two at most”.  He indicated that “both” of these relationships had involved emotional commitment and his longest heterosexual relationship lasted “one or two years”.  Mr Rajaratnam indicated that he has never lived with a sexual partner.

In response to questions about his thoughts and feelings during sexual contact with a consenting partner, Mr Rajaratnam somewhat poignantly stated:  “Perhaps I should have had more experience I suppose” and conceded that this is an area of regret for him.

Asked whether he had ever engaged in sex with prostitutes, Mr Rajaratnam declined to answer.  He also declined to answer a question about his use of pornography.  In response to a series of questions about a range of other sexual practices, he indicated that he had never engaged in them.  Mr Rajaratnam declined to answer questions about his current masturbatory practices, including his sexual thoughts or fantasies.  Asked how often he thinks about sex during the course of a day, Mr Rajaratnam responded:  “(It) varies, but I’m not answering the question.”  He similarly declined to answer other questions aimed at identifying whether he uses sexual thoughts or behaviour to copy with particular mood states.

In response to a series of questions about sexual entitlement, Mr Rajaratnam provided minimal, somewhat defensive answers.  Asked how strong his libido is compared to other males, Mr Rajaratnam stated:  “I don’t have enough information to do a comparison”.  Asked “how attractive are you to the opposite sex?” he smiled and replied:  “I don’t care”.

Asked how he would go about finding a sexual partner if he wanted one, Mr Rajaratnam replied:  “no idea”.  He initially gave the same response to the question:  “How can you tell when someone is interested in having sex?”  When the implications of the question and this response in relation to his offences were explained to Mr Rajaratnam, he reconsidered his answer and responded as follows:  “Somebody has full capacity and doesn’t reject your advances.”

When asked:  “Do you ever fell that women are playing with you sexually? - they lead you on and then push you away - How often does this happen to you?” Mr Rajaratnam responded “they do, yes”.  He indicated that he “doesn’t know” how often this happens to him.  Asked how he handles this situation when it happens, he responded:  “They are entitled to change their mind at any time.”

In response to the question:  “Do you think that some women who cry rape deserve what they get?  Can you think of an instance like that?” Mr Rajaratnam responded:  “There would be a proportion... Rape is something that occurs between two people.  It’s not for me to judge who’s right and who’s wrong.”

Discussion of Sexual Offences

Asked for his account of the offences, Mr Rajaratnam made the following response:  “I got involved with a girl who I thought was consenting but she believes she wasn’t.”  Asked why he thought he was accused, Mr Rajaratnam replied:  “communication problems...between me and her.”

Mr Rajaratnam described his relationship with the victim as “ambiguous...friends”.  He maintained that he couldn’t remember how old the victim was at the time of the offences - “more than 20”.  He indicated that he was attracted by her intelligence.

Mr Rajaratnam declined to answer about what happened during the commission of the offences.  He indicated that the sexual contact with the victim took place in his bedroom during the evening.  Asked for details of what took place prior to the sexual contact, Mr Rajaratnam responded:  “It just happened”.  He repeated this response when asked whether he had planned the sexual contact with the victim and subsequently described the offences as “spur of the moment”.  Asked about how this fitted with the fact that the medications used in the offences were already in his possession at home prior to this, Mr Rajaratnam responded “it’s a long story” and declined to elaborate further.

Questioned about his thoughts and feelings prior to the offences, and how this might have affected his subsequent behaviour, Mr Rajaratnam indicated that he was “probably tired... (it) probably affected my ability to think broadly.”

In response to questions about the degree of violence and coercion involved in the commission of the offences, Mr Rajaratnam replied:  “I disagree with the Prosecution’s allegations that she was misled about what she was taking.”  He indicated that he now thinks that he “should not have given it to her.”  Asked for clarification about what he perceives the error in this behaviour to be, Mr Rajaratnam replied:  “giving her medication when she didn’t need it.”  Mr Rajaratnam denied any coercion on his part in getting the victim to participate in sexual contact:  “I thought she was willing.”

Asked about details of the victim’s responses during the sexual contact, Mr Rajaratnam stated:  “I thought she was co‑operative.  She was laughing, smiling.  There was no indication that she was dissenting; keeping in mind that she was intoxicated at the time.”  When questioned about his awareness of the ‘intoxicating’ effects of the medication he had administered to the victim and how this may have affected her ability to give consent to sexual contact, Mr Rajaratnam responded:  “I didn’t consider it at the time, but I have since.”

Questioned about his thoughts and feelings during the offences, Mr Rajaratnam stated:  “I thought we were two friends who were spending some quality time together.”  He conceded that he was sexually aroused and had an erection, but didn’t think that he had ejaculated during the sexual contact with the victim.  Asked whether he has since thought about the sexual contact with the victim, Mr Rajaratnam smiled and replied “of course”.  He then clarified that he did not intend to imply by this response that he had subsequently thought about the offences for sexual gratification.

Mr Rajaratnam indicated that the sexual contact with the victim was terminated by her saying “I’ve got to go to a party.”  In response to follow‑up questions about evidence presented at court that the victim had suffered an adverse reaction to the drugs he had administered, Mr Rajaratnam conceded that “she was unconscious before that.”  He claimed that the victim was aware at the time that she had been unconscious but still felt well enough to go to a party.  Asked at what point after this the victim had complained about the offences, Mr Rajaratnam stated:  “According to the Prosecution she told a friend immediately - I don’t know.”  He indicated that the first he knew about it was “a couple of days later (when the) police arrived at the door.”

Asked about his thoughts and feelings immediately after the sexual contact with the victim, Mr Rajaratnam stated:  “I was wondering how silly I was to give her medications.”  He indicated that at the time, he didn’t regret the sexual contact with her, but his attitude has since changed:  “I’ve looked at the process of communication... what people are trying to say rather than what they say.  I was extremely arrogant at one stage (at the time of the offences)”.

In response to questions about his video‑recording the sexual offences, Mr Rajaratnam indicated that he did this because he is “interested in technology”.  He stated that the victim was aware of the video‑recording and consented to it.  Questioned about whether he intended to subsequently replay the video‑recording for sexual stimulation, Mr Rajaratnam maintained that he “wasn’t thinking about it at the time.”

Mr Rajaratnam indicated that he ‘didn’t know’ what effect the offences had had upon the victim and stated:  “I can’t fully empathize with her”.

Asked about his perception of the precipitating factors in the commission of his offences, Mr Rajaratnam responded:

“Arrogance - at the time I believed I was always right.  I believed I could do what I wanted.  Now, I see the world as a lot more complex; my abilities have to interact with other people’s needs; my abilities have limits; some have yet to be explored and could come up at any time.  I might need other people’s advice rather than thinking ‘I don’t need anybody’.”

Asked what e could have done to avoid committing the offences, Mr Rajaratnam responded:  “I don’t think I could have avoided it.  It was a lesson I needed to learn; I couldn’t have done anything until I actually fell in the hole.”

Mr Rajaratnam described his current attitude towards the offences in the following terms:

“I’m almost glad it happened (even though it was) horrible at the time... A life‑changing experience for me.  I’ve had an opportunity to look at a lot of my weaknesses.  It was a train‑wreck waiting to happen... (the) arrogance of giving medication... what sort of person... doctor I would have become...”

Mr Rajaratnam stated that he has “made very good use of my time” during his incarceration, in terms of pursuing his “self‑development” and further education.

…

Assessment of Risk

Static/historical risk factors

The Static‑99 is an instrument designed to assist in the prediction of sexual and violent recidivism for sexual offenders.  This risk assessment instrument is based on follow‑up studies from Canada and the United Kingdom with a total sample size of 1,301 sexual offenders (Hanson & Thornton, 1999).  The Static‑99 consists of 10 items and produces estimates of future risk based upon the number of risk factors present in any one individual.  The recidivism estimates provided are group estimates based upon reconvictions and were derived from groups of individuals with the characteristics identified in the 10 items.  As such, these estimates do not directly correspond to the recidivism risk of an individual offender.  The offender’s risk may be higher or lower than the probabilities estimated in the Static‑99, depending on the presence of other (dynamic) risk factors.  The Static‑99 considers only historical (‘static’ and unchangeable) factors regarding the offender and his offending behaviour.  It can therefore be considered as an indicator of general potential for offending based on past conduct.

A static risk assessment for Mr Rajaratnam was completed by the author of this report on 26/6/06.  Mr Rajaratnam’s score on the Static‑99 placed him in the Medium‑Low category of risk for re‑offending.  On average, 12% of individuals with these characteristics are convicted of a new sexual offence within a 5‑year period and 14% within a 10‑year period.  The rate for any violent recidivism (including sexual) for individuals with these characteristics is, on average, 22% within a 5‑year period and 27% within a 10‑year period.

Dynamic risk factors

Dynamic (changeable) risk factors include both stable and acute factors relating to an individual offender’s psychological state and life circumstances.  Stable dynamic risk factors include areas such as capacity for intimacy, social influences, attitudes toward sex, sexual self‑regulation and general self‑regulation.  Acute dynamic risk factors include areas such as alcohol/substance abuse, negative mood (e.g. depression), anger/hostility, and opportunities for victim access.  Dynamic risk factors are influenced by the extent to which an individual takes responsibility for managing his own risk, as well as strategies for the external management of his behaviour.

Dynamic risk factors associated with Mr Rajaratnam’s risk for sexual re‑offending are considered in turn:

·Intimacy Deficits - Research has demonstrated that those sexual offenders who are in an appropriate supportive relationship have a reduced risk of re‑offending.  Mr Rajaratnam has never been in a significant intimate relationship and acknowledges difficulties in this area.  This lack of ability to establish and maintain an appropriate intimate relationship suggests that Mr Rajaratnam has no lawful means of getting his genuine sexual and intimacy needs met and therefore adds to his risk for sexual re‑offending;

·Social Influences/Supports - Mr Rajaratnam appears to have very limited social support.  His stated primary source of family support in Australia is his younger brother.  He has no current friendships;

·Emotional self‑regulation - Mr Rajaratnam presents as a man who is not in touch with his own or other people’s feelings and who tends to deal with emotional matters by intellectual argument.  Men who commit sexual offences typically demonstrate deficits in the ability to recognize and deal with emotional states in themselves (emotional recognition); negative feeling states are often a precursor to sexual offending for these men.  Such offenders also appear to have difficulty in identifying negative emotional states in others such as anger, fear and surprise (Hudson, Marshall, Wales, McDonald, Bakker & McLean, 1993).  This tendency plays a significant role in sexual offending because it allows the offender to believe that the victim was consenting to the inappropriate sexual behaviour and/or was not harmed by it.  Mr Rajaratnam’s responses during the current assessment interview conveyed a lack of empathy for the victim;

·Attitudes - Although Mr Rajaratnam did not disclose any overt attitudes of entitlement or other cognitive distortions associated with sexual offending, his responses to some assessment questions suggested that he perceives women as sexually teasing him and he appeared to agree with a statement that some women who complain of rape ‘deserve what they get’.  Unfortunately, Rajaratnam’s guarded and defensive demeanour during the assessment precluded further exploration of these issues;

·Sexual self‑regulation - Mr Rajaratnam presented as extremely guarded and defensive in his responses to assessment questions about his sexual interests and behaviour.  It is therefore difficult to make any useful comment about this as a potential risk factor;

·General self‑regulation - Mr Rajaratnam has no previous criminal history and there is no evidence of lifestyle factors that would add to his risk

Further Considerations of Dynamic Risk

Mr Rajaratnam’s institutional behaviour suggests that he is able to ingratiate himself with selected staff and use this influence to gain a degree of trust, power and control not ordinarily available to inmates.  On the other hand, he presents as rude and arrogant towards other staff.  In response to an assessment question in which he was asked to identify things that would make a (sexual) re‑offence more or less likely respectively, Mr Rajaratnam identified “being given absolute control of things; any system” as a risk factor for re‑offence, and “reminding myself of my fallibility” as a mitigating factor.  The fact that Mr Rajaratnam has been able to access positions of trust and relative control in a custodial environment raises serious concerns about his potential to place himself in risky situations when he returns to the community.

In response to the assessment question:  “Have you ever put yourself in a risky situation just to see if you can handle it?” Mr Rajaratnam responded:  “Yes; I won’t go into details.  I was able to handle it easily; I included safeguards, so I believed I was fairly safe.”  Testing known risk factors is generally recognized as an acute dynamic risk factor in sexual re‑offending (Hanson & Harris, 2000) because the offender deliberately places himself in a position where he is at risk of re‑offending.  The fact that Mr Rajaratnam was unwilling to provide details of this incident makes it difficult to assess the degree of risk involved in the situation, nor whether the so‑called “safeguards” were appropriate.

Conclusion and Recommendations

An actuarial assessment places Mr Rajaratnam in the Medium‑Low category of risk for sexual and violent re‑offending.  Consideration of his intimacy and relationship deficits suggests that he remains at some risk of sexual re‑offending.  Because he denies most aspects of the offences and was unwilling to disclose details of his sexual thoughts and practices, it is difficult to identify other risk factors associated with his offending behaviour, nor strategies for containing those risks.

Mr Rajaratnam would benefit from undertaking the CUBIT programme to address his intimacy and relationship difficulties, develop emotional recognition and management skills, and as well as identifying his other dynamic risk factors and strategies for managing them.

…

44.     Under the head of “Dynamic Risk Factors” Ms Bel referred to six bullet points.  It will be noted also that she found that the risk of recidivism fell into the medium to low category.

45.     Although neither party had intended to call Ms Bel, repeated references to her during the course of other evidence led me to consider that her evidence might assist the Tribunal and, with the approval of the parties, the Tribunal telephoned her, and was fortunate enough to be able to make contact with Ms Bel and procure her assistance.  (Ms Bel is entitled to an expression of the Tribunal’s appreciation of the fact that without notice of any kind, she made herself available for this purpose.)

46.     Although Ms Bel’s evidence was clear, coherent and honest, it cannot be said that it advanced matters to any great extent.  This is in no way attributable to fault on her part.  Contact between her and the Applicant has been limited and indeed this was so also in respect of the Applicant in relation to Mr Schou.

47.     Ms Bel noted that the Applicant had gained unsupervised access to confidential facilities and information and her response was one of both concern coupled with some degree of admiration.  She accepted that the Applicant has made contributions to the computer programs of the prison.  She too referred to his arrogance.  And she too felt that without proper treatment such as that provided by CUBIT, she could not take any view other than that there was a medium to low risk of recidivism.

PART F - the risk of recidivism

48.     This aspect is of such importance that it is dealt with in a separate Part.  It had become clear by the second hearing day that it was in all probability the most important factor in this matter.

49.     The difficulty confronting the Tribunal is that there is little clear evidence as to the risk.  The Applicant contends that the risk is properly categorised as very low.  At the end of the day, the Tribunal must do the best it can with the evidence it has and thus should accept Ms Bel’s that the risk is medium to low.  I accept her assessment in preference to the less optimistic assessments by Mr Fitzsimmons and Mr Schou for two reasons; Mr Schou did not give evidence before the Tribunal; in addition and in this particular context, Ms Bel’s assessment should be preferred to that of Mr Fitzsimmons’s simply because of her superior expertise in this area, and not because there is any aspect of Mr Fitzsimmons’s evidence which was in any way unsatisfactory.

50.     I have referred previously to the fact that at the directions hearing in August 2006 I urged the Applicant to obtain legal representation and psychological evidence.  I had in mind that it might be possible (and this of course was a possibility only) that firm evidence as to the fact that there is little or no risk of recidivism might be available.  A competent lawyer acting for the Applicant would have done his best to ensure the provision of suitable evidence of this kind.    Evidence of little or no risk of recidivism would undoubtedly have been advantageous for the Applicant and might indeed have resulted in a different decision.  The Applicant, as I have said, chose not to accept that advice.  That this is so is to be regretted for reasons that are too obvious to require elaboration.

51.     Ms Teo referred the Tribunal to a decision by Davies J sitting as President of this Tribunal in Re Stone and Minister for Immigration and Ethnic Affairs [81] (1981) 3 ALN No 81.  Clauses 3 to 6 (and clauses 4 and 5 are particularly relevant) of that decision read as follows:

…

(3)Deportation may have for the criminal consequences more serious than the term of imprisonment which he served. Thus, in Re Sergi, supra, the criminal, an aged man, if deported, would have been separated from his children and grandchildren and may have been separated from his wife. In Re Ceskovic (1979) 2 ALD 453, and in Re Sevis, supra, consideration was given to the possibility of further punishment of the criminal should he return to his homeland.

Deportation may interfere with the criminal's rehabilitation. One of the objects of a sentence of imprisonment is the criminal's rehabilitation into the community. In the following cases it was thought that deportation would be likely to prejudice the criminal's rehabilitation: Re Vincent (1978) 1 ALD 460, Re Sajatovic (1979) 2 ALN No 78, and Re Martin & Sergmann (1980) 2 ALN No 114.

(4)The seriousness of the crime is an important consideration. The more serious the offence the greater the affront there has been to the community and the greater the necessity there is to preclude recidivism.

The nature of the offence is of particular significance in the case of an immigrant who, in substance, seeks to remain in Australia so as to become fully absorbed into the Australian community. Yet, by the nature of his crime, he may have placed himself among the class of persons whom Australia will not accept for entry. The community may prefer to deport the criminal because he no longer meets the criteria which the community, having a choice as to who will and who will not become members of its community, has laid down for entry to Australia. The cases I have mentioned under factor (2) are here relevant.

(5)Although the science of recidivism is an imprecise one, the task of assessing the prospects of future harm to Australia should the criminal remain occupies much of the Tribunal's attention in deportation reviews. The Tribunal gives attention to statistics on recidivism to the extent that they are available and expects that persons appearing for the parties will have considered what are the most relevant statistics currently available.

In the past history of most of the criminals considered for deportation, that is to say, criminals who have committed relatively serious crimes, personality defects, emotional or intellectual immaturity, lack of control or like matters can be identified. It is for this reason that in some types of crimes, for example, the crime of break, enter and steal, the rate of recidivism is relatively high. Thus the Tribunal finds little assistance in simplistic evidence from an applicant that he will not offend again. The task of the Tribunal is to identify the factors which led to the commission of the crime, to judge the effect of the period of incarceration upon the criminal and to assess the risk of recidivism accordingly. Having made its assessment of the risk of recidivism in a particular case, the Tribunal may find it necessary to take into account the fact that the techniques of prediction are clumsy and that the assessment of probabilities may be wrong.

The likelihood of recidivism is a strong factor in favour of deportation when the Tribunal is not satisfied that the criminal is unlikely to offend again. See Re Hood (1977), 1 ALN No 5, Re Tcherchian (1978), 1 ALN No 20, Re Botic (1978), 2 ALN No 3, Re Seljankovski (1979), 2 ALN No 43, Re Bio (1979), 2 ALN No 48, Re Smithers & Manson (1979), 2 ALN No 51, Re Nardella (1979), 2 ALN No 55. And even if the risk of recidivism is not high, the risk will strongly support deportation when recidivism, if it does occur, may cause great harm. See Re Becker (1977), 1 ALD 158, Re Gemayel (1978), 2 ALN No 5. (Emphasis added by the Tribunal)

(6)The Tribunal has accepted as a relevant factor the desirability of deterring other persons from committing crimes of a like nature. In many of the cases which come up for consideration, deterrence of others is not a significant factor. The crimes are of an individual character and any deterrence that is needed is satisfied by the provisions of the criminal law. But there are a number of cases in which crimes of a particular type have been associated with particular ethnic communities. Evidence before the Tribunal has shown that a number of young New Zealand citizens, particularly those living in and around the Bondi area of Sydney, have had a propensity to commit crimes in the nature of break, enter and steal, minor frauds and the like. Because a community group is involved, it has been thought to be useful that that group should appreciate that the commission of a crime may be visited not only by a sentence of imprisonment but also by return to New Zealand. See Re Frith, supra, Re Winthrop & Smith (1980) 2 ALD 873, Re Tombuloglu (1981) 3 ALN No 11, and Re Steed (unreported, 17 July 1981, No N13/81).

Similarly, evidence before Tribunals has shown that some Italians from Calabria, particularly from the vicinity of the town of Plati, and some elements of the Turkish and Lebanese ethnic communities in Australia have become involved in drug offences. In some cases, it has been thought that the desirability of deterring others of the ethnic group from committing offences of a like nature was a relevant factor to which weight should be given.

Nevertheless, this is a factor which is taken into account only with care. As I said in Re Saverio Barbaro (1980) 3 ALD 1 at 15,

'The Minister contends that a deportation order is not imposed by way of punishment. One of the grounds in the notice of appeal in Gungor's case is that

"The making of a deportation order is not punishment". But little purpose is served by characterizing deportation as being not a punishment without recognizing that, if the major factor which moves the making of the deportation order is the desire to deter persons other than the convicted person from committing crimes of a like nature, then the making of an order may serve as an additional punishment because it is a detriment imposed as a consequence of the offence and is imposed with a view to deterring other persons from committing like offences. When a deportation order is made principally for the purpose of deterrence, its affinity with punishment consequent upon a conviction becomes a close one. That is a relevant matter to be taken into account.

…

52.     Ms Teo also referred the Tribunal to the judgment of the Full Federal Court in Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198. See in particular the following extract from the judgment at 203 from Beaumont J as follows:

…

Risk of recidivism

The tribunal said, in the course of its reasons: ``As to the possibility of recidivism, there is a substantial body of acceptable, cogent and persuasive evidence that this possibility is very low indeed ... I believe accordingly that the possibility of recidivism is quite minimal.''

It will be recalled that the minister expressed his conclusion on this aspect as follows: ``I have not given much weight to the statistical possibilities of recidivism offered by Mr Lannen as a result of studies of the SOTP program. Statistics are of little use when one considers an individual case. The reality is that there is a real risk, however minimal, of recidivism. My conclusion on recidivism, canvassing the factors mentioned above, though higher than the AAT's conclusion on recidivism, does not depart greatly from the AAT. I consider that it is low.''

There is an apparent inconsistency in this reasoning. On the one hand, there is ``the reality'' of a ``real risk, however minimal ...'' [my emphasis]. On the other hand, the minister's conclusion on the point is said not to ``depart greatly'' from the tribunal and the possibility is said to be ``low''.

I have difficulty in following the logic of this approach. If a risk is ``real'', it is not apparent that it can at the same time be ``minimal'' or even ``low''. The positions appear to be inconsistent. It is not rationally open, on the one hand, to accept, substantially, the opinion of the tribunal on the point and, at the same time, express the opinion that there was a ``real'' risk. Such an opinion would be quite contrary to the tribunal's conclusion on this matter. It must follow, in my view, that, to this extent, the minister's reasoning was ``manifestly unreasonable''. This was an important aspect of the minister's deliberations and it must further follow, in my view, that, on this ground alone, the matter should be referred to the minister for further consideration in accordance with the law.

…

53.     It is of course clear that the judgment in Batey (supra) is binding on me.  The decision in Stone (supra) while it may not be binding in the strict legal sense, was given by a judge and one of this Tribunal’s most respected presidents and deserves consideration accordingly.

54.     This is a case in which there is no rational explanation for what was by any standards appalling behaviour.  The Applicant’s endeavour to dispute the facts found by the Courts cannot be accepted.  The fact that his evidence was in significant respects untruthful must count against him.  So too must, to my mind, be his irrational refusal to participate in CUBIT.  It is possible, and even likely in my view that the Applicant’s evidence before the Tribunal, inconsistent as it was with the facts found by the courts and where the Applicant did not give evidence, constitute an obstinate refusal on his part to confront his conduct.

55.     It will be noted that the Applicant has been guilty of a number of infringements of prison regulations.  The Applicant characterised them as minor; bearing in mind that they were referred to only in passing, and that they were not in any way emphasised by the Respondent’s representative, I do not intend to assign any particular significance to them.

PART G - direction – visa refusal and cancellation under section 501 – no 21 (“the direction”)

56.     It is clear of course that the Applicant does not pass the character test; this is so because of the prison sentence to which I have referred.

57.     In this Part G, references to numbered clauses should be construed as references to numbered clauses in the Direction.

58.     The primary considerations are set out in clause 2.3, reading as follows:

…

PRIMARY CONSIDERATIONS

2.3In making a decision whether to refuse or cancel a visa, there are three primary considerations:

(a)the protection of the Australian community, and members of the community;

(b)the expectations of the Australian community; and

(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.

2.4…

59.     Clause 2.3 must be read in conjunction with Clause 2.5, reading as follows:

2.5The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:

(a)the seriousness and nature of the conduct;

(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and

(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).

2.6…

60.     I have dealt with the risk of recidivism in Part F.  My finding is that the risk is medium to low although and as I have noted I would have liked more concrete evidence.  The decisions in Batey (supra) and Stone (supra) have the effect that because the offences were so serious, I must hold that this factor supports deportation.  (See in particular clause 5 of Stone (supra) quoted earlier in these reasons.)

61.     Deterrence is an issue which is difficult to evaluate if only because there is seldom much real evidence of its effect and this is all the more the case where the circumstances are so unusual.  In this particular instance the Courts found as a matter of fact that there were more offences than one even though they took place at the same time.  Deterrence is not in reality a significant feature of this case.  The most that can be said is that a message should be given as to the fact that conduct of this type can never be tolerated.

62.     The offences were undoubtedly very serious within clause 2.6.  And as the Applicant himself admitted the expectations of the Australian community, under clause 2.12, would be against him.  The Applicant referred in this context to the reaction to him by some of his fellow prisoners. (That reaction would, one would have thought, have led to him adopting a course of conduct which would allow for release on parole in February 2006 but, as I have said, this did not occur). The  Australian community as a whole would be largely unanimous in its repugnance of conduct by a doctor who takes drugs unlawfully from the hospital by which he is employed, in order to administer them to someone who trusts him, under the pretence of vaccinating her and in order to procure sexual gratification.  The video aspect strikes, if this is possible, a particularly upsetting note.  The Applicant said that while this might be so, persons who came to know him might see him in a different light.  I think there may be some merit in this contention but it is not to the point.

63.     Hardship under clause 2.17 is not a real consideration.  His only close relative in Australia is his brother who would not support him.  The Applicant’s desire to see his nephews and nieces grow and develop is referable to his hardship but not theirs and as to which there is no evidence at all.

64.     In written submissions provided at the end of the hearing the Applicant referred to certain commendable works by him in the context of clause 1.7.  However, clause 1.7 is relevant to a consideration of whether or not he passes the character test.  In this case, his criminal record ensures that he does not and so that it is only Part 2 of the Direction which is relevant.

65.     It may be noted that the Applicant will have support in Malaysia.  Indeed Mr Fitzsimmons in Exhibit R1 noted that until recently the Applicant had maintained that he would be happy to go back to Malaysia and that the Applicant’s reasons for this appeal are not known.

66.     There are two matters which are referred to if only for the sake of completeness.  Based on what the Applicant said in evidence I have noted that he attended Adelaide University.  In fact Exhibit R1 indicates that he attended Flinders University Medical School.  I note also when considering Exhibit R1 that it indicates the Applicant has been in regular contact with his brother and that his brother remains supportive of him. That the Applicant’s brother did not furnish any assistance in respect of this hearing is all the more surprising.

67.     As I think I have indicated, this is a case in which there are aspects that are unclear.  The Applicant, again as I have said, presented as a person of ability and charm.  That he should find himself in this plight is for obvious reasons a great pity. He has positive characteristics and could, as his Australian relatives have done, have made a success of his life in Australia.  But his present predicament is to a very large extent of his own making.  His contention that the risk of recidivism is minimal cannot rest on his own unsupported word, and in particular having regard to his attitude to CUBIT.  In any event the other evidence before the Tribunal does not support it.

68.     This then is not a case in which the discretion can be exercised in favour of the Applicant and the decision under review is affirmed.

I certify that the 68 preceding paragraphs are a true copy of the reasons for the decision herein of Julian Block, Deputy President.

Signed: [Sgd]           .....................................................................................

Associate

Date/s of Hearing  16 October and 18 October 2006
Date of Decision  3 November 2006
Representative for the Applicant    Self-represented
Solicitor for the Respondent          Ms Xuelin Teo, Clayton Utz, Solicitors