SELVAM MAYATHEVAR and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2012] AATA 566
•28 August 2012
[2012] AATA 566
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/2430
Re
SELVAM MAYATHEVAR
APPLICANT
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Date 28 August 2012 Place Perth The decision under review is affirmed.
.........sgd S D Hotop...............
S D Hotop, Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – visa – cancellation of visa – applicant a citizen of India – applicant arrived in Australia in May 2007 when aged 24 years – applicant committed 14 internet sex offences involving supposed child in June/July 2010 – applicant sentenced to 14 concurrent terms of 12 months' imprisonment – applicant does not pass character test – discretion to cancel visa – primary considerations and other relevant considerations – protection of Australian community favours cancellation of visa – protection of Australian community outweighs other relevant considerations which weigh against cancellation of visa – applicant's visa should be cancelled – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 501(2)
Direction no [41] – Visa refusal and cancellation under s 501
CASES
Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390
REASONS FOR DECISION
Deputy President S D Hotop
28 August 2012
Introduction
Selvam Mayathevar (“the applicant”) has applied to the Tribunal for review of a decision of a delegate of the Minister for Immigration and Citizenship (“the respondent”), dated 25 May 2012, cancelling his Class BN Subclass 136 Skilled−Independent visa (“the visa”). The delegate’s decision was made under s 501(2) of the Migration Act 1958 (Cth) (“the Act”).
The Factual Background
The applicant was born in May 1982 in India and is a citizen of India.
The applicant first arrived in Australia on 23 December 2006 and departed the following day. He next arrived in Australia on 5 May 2007 and has resided in Australia from that date. He has subsequently been outside Australia for two periods, namely, from 5 January 2008 to 15 March 2008 and from 2 to 10 August 2008.
The applicant, following pleas of guilty, was convicted in the District Court of Western Australia of the following offences and, on 22 December 2011, he received the following sentences:
·two counts of using electronic communication with intent to procure a person he believed to be under the age of 16 years to engage in sexual activity – a sentence of 12 months’ imprisonment on each count (to be served concurrently);
·12 counts of using electronic communication with intent to expose a person he believed to be under the age of 16 years to indecent matter – a sentence of 12 months’ imprisonment on each count (to be served concurrently with each other and with each of the abovementioned sentences of 12 months’ imprisonment).
His total effective sentence was therefore 12 months’ imprisonment and it was backdated to commence on 4 December 2011. He was made eligible for parole.
On 25 May 2012 a delegate of the respondent cancelled the visa under s 501(2) of the Act.
The Relevant Legislation
Section 501(2) of the Act provides:
“ The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.”
The “character test” is defined in s 501(6) of the Act which specifies various alternative circumstances in which a person does not pass the “character test” within the meaning of that section. In the present case, the relevant circumstance is that specified in para (a) of s 501(6), namely, “the person has a substantial criminal record (as defined by subsection (7))”. Section 501(7) specifies five alternative circumstances in which, for the purposes of the “character test”, a person has a “substantial criminal record”. In the present case, the relevant circumstance is that specified in para (c) of s 501(7), namely, “the person has been sentenced to a term of imprisonment of 12 months or more”.
The Ministerial Direction
In reviewing the delegate’s decision in this matter pursuant to s 500 of the Act, the Tribunal is required, by s 499(2A) of the Act, to comply with a direction given by the respondent under s 499(1) of the Act. The relevant direction, as presently in force, namely, Direction [no 41] – Visa refusal and cancellation under s 501 (“Direction [41]”), was given by the respondent on 3 June 2009 and commenced on 15 June 2009. Part A of Direction [41]:
“ provides directions on the application of the character test ... set out in section 501(6) of the Act;”
and Part B:
“ provides directions on the primary and other considerations that are relevant to determining whether it is appropriate in the specific circumstances of the case to exercise the discretion to refuse to grant or cancel the visa. …”
Direction [41] will be relevantly referred to in more detail later in these reasons.
The Evidence
The evidence before the Tribunal comprised:
·the “G Documents” (G1–G28, pp 1–173) lodged by the respondent on 26 June 2012 (Exhibit R1);
·Exhibits A1 and A2 tendered by the applicant; and
·the oral evidence of the applicant.
The Sentencing Remarks of Staude DCJ On 22 December 2011
When sentencing the applicant on 22 December 2011 for the offences referred to in paragraph 4 above, Staude DCJ made the following remarks:
“ STAUDE DCJ: Mr Mayathevar, you may remain seated while I make these remarks.
You are before the court for sentence having pleaded guilty to 12 counts of using electronic communication with intent to expose a person you believed to be under the age of 16 years to indecent matter, and two counts of using electronic communication with intent to procure a person you believed to be under the age of 16 years to engage in sexual activity.
The court in imposing sentence must determine sentences which are commensurate with the seriousness of your offending. The seriousness of these offences must be determined having regard to the statutory penalty for the offence, the circumstances of the commission of the offence, which includes the vulnerability of the victim or the putative victim, and any aggravating and mitigating factors.
The penalty prescribed in the Criminal Code for the offence committed in respect of a child who is over the age of 13 but under the age of 16 is a term of up to five years’ imprisonment.
Now, the then attorney-general said in the course of his second reading speech in relation to the bill which resulted in the enactment of the Criminal Code amendments under which you’ve been charged the following:
The new section 204B in the Criminal Code will provide a means to target those who seek to exploit children through contact on the Internet and other types of electronic communication. Predators will frequently go online into Internet chat sites posing as children and attempt to engage a child victim in a conversation and to groom the child for planned sexual exploitation.
After gaining the trust of a child, a predator may attempt to arrange an actual meeting with the child for the purpose of engaging in sexual acts with the child. Alternatively, the predator may sexually exploit a child by having the child digitally photograph himself or herself and send those images via email or a mobile phone.
The predator may convince that person to engage in indecent acts, and describe those acts via text communication, or may move the communication offline and conduct it by digital phone conversations and SMS text. The offence will also occur in cases in which the offender has supplied a child with indecent material, a common method used in grooming to lower a child’s inhibitions to the abuse.
The crucial aspect of this legislation is that it provides police with the ability to stop a child from being abused before it happens. Police will have the capacity to go online and conduct operations against offenders by posing as children.
Offenders need only believe that they are communicating with a child. And unless the offenders can show otherwise, they will be held to have a belief that they are communicating with a child of a particular age that is communicated to them. The offender commits the offence even when the child victim turns out to be a police officer.
This legislation will provide a deterrent to those seeking to prey on children. If predators know that the children they intend to prey upon may be police officers, it is far more likely that the children will be left alone.
Now, I’ve made a point of reciting that rather long extract from the speech to indicate the purpose for which the legislation was enacted; that is, the protection of children, and the means by which that protection is sought by these provisions of the Criminal Code to be achieved.
In the case of Speering in 2008, Steytler J said:
The seriousness with which the legislature views behaviour of this kind is reflected by the fact that the offence is one of using electronic communication with intent to procure the person in question to engage in sexual activity, or to expose the person in question to indecent matter. The penalty consequently applies whether or not the child is actually procured to engage in sexual activity, or is exposed to indecent matter.
The court has repeatedly said that adult persons who make use of the Internet to locate and make contact with children so as to procure them to engage in sexual activity can ordinarily expect to receive a term of immediate imprisonment, and that, as with offences concerning possession of child pornography, there is a paramount public interest in protecting children from sexual abuse.
The court has also repeatedly said that in cases involving sexual offending against children, the seriousness of the offence will often outweigh personal circumstances, even in the case of a first offender.
…
In your case, the offences were committed in the following circumstances. On 19 May last year, you became involved in private online conversations with a police operative who had assumed the persona of a 13-year-old girl. You used the nickname SelvaM and used a Yahoo! chat room application to engage in those conversations.
The charges on the indictment relate to a period from 1 June 2010, when you changed the topic of conversation with the child persona to that of a sexual nature. On 19 July 2010, you arranged a meeting with the child persona in Queens Park. And it was when you attended at that meeting place at the appointed time that you were arrested.
The police operative assumed the persona of a 13-year-old girl. And you persisted with the conversations in which you engaged in the belief that you were talking to a 13-year-old girl. In your conversations, you referred to sexual activities in which you wished to engage with the child persona, and you spoke to her in a sexual way. You sent the child persona pornographic images on more than one occasion.
The aggravating features of this case, I accept, are the age disparity between the child persona and yourself; she then 13, you then 29, the fact that your offending persisted over a period of seven weeks and only came to an end when you were arrested, the transmission of sexually explicit photographs depicting an erect penis and images of sexual activity and, most significantly, the fact that you arranged a meeting with the child persona and were arrested at the arranged meeting place in possession of items related to sexual activity.
The arrangement of the meeting renders the seriousness of your offending much more grave than offending which simply consists of conversation in which sexual activity is fantasised about on the part of the offender. …
Now, I have a lot of information about your personal background and circumstances and I need to deal with some of that in addition to what Mr Prior has said on your behalf. You were, as has been said, born in in India and you have a family there.
You’re the eldest of three children and you have taken, in the past, some responsibility for the care of your – and support of your mother and your two younger siblings, although I think they’re now old enough to look after themselves. Sadly, your father passed away about 10 years ago.
Your childhood was, in your description, uneventful and happy. You came to Australia in 2007 under a school migrant scheme. You had left school at the age of 18 years and completed a tool-making apprenticeship and this apprenticeship gave you employment first of all in Singapore and, later, Australia.
You worked for Boyd Metal Industries and you are very highly regarded by your employer. You are a skilled press brake operator. And I have read the letter which your employer has sent to the court which sets out the circumstances in which the company has supported you in recent times in relation to this matter and it also points to the willingness of your employer to employ you in the future.
You earn, as has been said, up to $900 net per week but you have had major financial problems, mainly due to gambling addiction. You obviously outlay money for your own expenses. You are repaying a bank loan at $300 per fortnight. You pay rent and you obviously spend money on living expenses.
In addition, you send money home to your family in India as well as your fiancée in Indonesia and with her you have a daughter. I understand from the pre-sentence report that is somewhat dated that you send your family in India, or where sending (sic), $700 to $800 every two or three months and that you sent your fiancée $200 per month.
I understand further that since you have been undergoing psychological counselling you have incurred the expenses of a psychologist at $200 per visit. You are significantly in debt, having borrowed money to pay off a car loan which you then wasted by gambling at the casino.
And you admit having had a very serious gambling habit to the point where you have, since your arrest on these matters, arranged for your exclusion from the casino on a voluntary basis. So that appears to be a matter that’s under control.
I understand that your family in India is unaware of your offending but your fiancée is aware of what has occurred and she is supportive of you. I have read a letter from her. I understand that she met you in Singapore in 2004 when she was working as a maid and you were working as a tradesman. A relationship developed between you. I think you lived nearby to each other.
When you came to Australia she went to Indonesia to live and she gave birth to your daughter in 2008. You wanted to be married but had difficulty doing so in Indonesia because of your different faiths. I understand from what your fiancée has said that when you left her or left Indonesia on the last occasion you were intending that the relationship would continue.
But she observed your character to change after you returned to Australia and she attributes that to your friendship circles and your smoking and drinking and gambling. It appears from her letter that she will suffer financially without your support.
Following your arrest you consulted Ms Christabel Chamarette, a psychologist, and Ms Chamarette made a report in April this year which recommended you as suitable for a group treatment program. And on that basis, as Mr Prior has said, your sentencing was postponed so that you could deal with the issues that contributed to your offending by attending this program.
You were then described as having little insight into your offending behaviour. Ms Chamarette said that you tended to deny, minimalise (sic) or justify your actions and she said those were common tendencies for untreated Internet child sex offenders.
She found you to be an anxious man but an intelligent one and one who accepted that his situation was of his own making. She found you highly motivated to commit to treatment and, accordingly, she thought you would gain from the program. She also made the observation that she saw you as somewhat naïve.
I have a report from another psychologist, Janice Page (sic), dated 11 October this year which indicates that you are – you were then considered by her to be suited to a program addressing problematic Internet use.
And, finally, in relation to the psychological material, I have a report from Mr Peter Dunlop who, with Ms Page (sic), conducts the program that you have done and he states that you’ve attended 23 or (sic) 26 group sessions. Three sessions you could not attend because of work commitments. He also notes that you’ve attended six individual psychotherapy sessions.
Mr Dunlop gives a detailed account of your sexual history which includes some sexual abuse by an older woman when you were between the ages of 13 and 15. Your next sexual experience was many years after that and that was unsatisfactory.
When you went to Singapore you were told that you couldn’t have sex with local girls because you would get into trouble but in that time you developed your relationship with Ms Elia (?) (sic) and that is your first romantic relationship.
I think your intention was, when you decided that you would get married, that you would come to Australia or somewhere else where you could marry and live peaceably, notwithstanding your different faith backgrounds. As it happened, you came to Australia and she went to Indonesia. You returned to Indonesia to get married but could not do so.
When you returned to Australia, as I said before, you began to have problems and these were manifested in your gambling which caused you to suffer significant financial losses. And that contributed to depression and feelings of despair and that led to your drinking heavily. And, as a result, your family in India suffered because you weren’t able to give them the same support as you had before.
In November 2009, you met a Japanese woman with whom you developed a friendship and with whom you had a sexual relationship. And it was during the period of that relationship which was one in which you were exposed to sexual activity that you hadn’t previously experienced that you started your chat room activity.
Mr Dunlop has observed that it seems to him from the chat logs that you became so concerned and absorbed in your fantasised sexual relationship with the child persona that you became oblivious of the real world and of your position as an adult in relation to a 13 year old. And he said that it seemed to him that you did not realise what you were doing was illegal.
I find it difficult to accept that you became oblivious of the real world because your actions led to your making an arrangement to meet the child persona, so they went far beyond mere fantasising about sex in the unreal environment of an Internet chat room, but you descended into reality when you made arrangements to meet the person with whom you were conversing.
In Mr Dunlop’s opinion, you were involved in a downward spiral of sexual degradation which he considers is related to your sexual abuse as a teenager. He considers that as a result of work you have done in counselling in relation to victim empathy and relapse prevention, your risk of reoffending is low.
The principal considerations in sentencing in a case such as this are personal and general deterrence. Personal deterrents (sic) means that a sentence must be imposed which will deter you from offending in a similar way in the future knowing that you are liable to be punished. And I accept that in your case the work that you have done in the program probably meets the need for specific or personal deterrents (sic). As it appears to be the opinion of Mr Dunlop, you now appreciate the seriousness of your offending and its unlawfulness.
But as your counsel concedes, the greater consideration is general deterrence and that means that the sentence that the court imposes must be seen by the community as one which will deter other persons from committing the same or similar offences knowing that they will be severely punished if they do.
In this case there is no victim to be vindicated as such, but the courts are charged with a duty of protecting children in the way provided by the Parliament. That is by imposing punishments for these offences which deter this kind of criminal conduct.
The personal circumstances of the offender are always relevant, but they are of less importance in cases of this kind than the need for deterrence.
The great majority of offenders who are dealt with for cyber-predatory offences and also child pornography offences, which have some significant similarities in that they are not offences which necessarily lead to actual child abuse, but are nevertheless exploitative and abusive, are persons of otherwise good character and without a record. They can point to some reason to explain their disordered or unnatural interests or their weakness in giving way to such tendencies.
People who are happy and healthy and well adjusted don’t commit these offences or are very unlikely to do so, it would seem. So it’s generally the case that people either have some disordered affection for young children, or they are, by reason of personal circumstances, weak and liable to give way to tendencies to engage in this activity.
So what is clear from the decisions from which I must take guidance is that ordinarily only one type of sentencing disposition is appropriate no matter how personally catastrophic that may be.
I’m still bound as a matter of law, pursuant to the Sentencing Act, to consider the sentencing options which it provides, and I accept that a sentence of imprisonment can only be imposed as a sentence of last resort. I cannot impose a sentence of imprisonment unless I consider that the seriousness of the offence is such that no other sentence is justified or the protection of the public requires it, and if I do get to that point, I should not impose an immediate term unless it would be inappropriate to suspend it.
I consider that the proper disposition of these matters must take account of the severity of your offending as a course of conduct, and I must also take into account matters personal to you.
The suspension of a term of imprisonment is only available where I consider that a sentence of imprisonment is warranted. I must consider those matters which are relevant to the imposition of the term of imprisonment in determining whether it should be suspended.
In my view, notwithstanding the particular circumstances in your case that may have contributed to your offending, yours is not an exceptional case.
I do not consider that your culpability is substantially reduced by your history of sexual abuse as a teenager by an older woman. That abuse involved sexual activity which was age inappropriate, but which was not otherwise of such a nature as will, in my opinion, have a tendency to impair your moral judgment.
You chose to engage in a sexual relationship with a Japanese woman during your engagement, and you chose to engage in the chat room conversations by which these offences were committed. It is all very well to say that you became engrossed in a sexual fantasy with the child persona, but the inescapable fact is that you arranged to meet her with a view to having illicit sexual activity, and such behaviour is precisely that which the Parliament intended to prevent by enacting the provision under which you are convicted, or pursuant to which you are convicted.
In sentencing you, I do take account of the dependency of your fiancée and your daughter in Indonesia, but the hardship they will suffer is not something that allows me to do anything else but impose terms of immediate imprisonment.
I should say that I have considered the submissions made on your behalf by Mr Prior in relation to the time that you have spent in custody, some 17 days, and the effect that that has had on you in terms of specific deterrents (sic).
I’ve also had regard to the steps that you’ve taken to address your behaviours by undergoing the psychological program which I have made reference to. And I also have taken into account the recommendation of Mr Dunlop that you are at low risk of reoffending.
Despite those circumstances, having regard to the cases which guide this court in the disposition of this matter, I need to sentence you to a term of immediate imprisonment.
So would you stand up, please, Mr Mayathevar? On count 14 in the indictment, I sentence you to 12 months’ imprisonment. It is the offence of using electronic communication with intent to procure a person who you believe to be under the age of 16 to engage in sexual activity and it represents the culmination of your attempts to groom the child persona to the point at which an arrangement to meet her for sexual activity was made.
On counts 1 to 13, I also impose sentences of 12 months’ imprisonment. I order that they be served concurrently with the head sentence. The total effective sentence is therefore 12 months’ imprisonment, and I order that you be eligible for parole.
…” (Exhibit R1, G5, pp 32–40)
Additional Convictions
In addition to the convictions referred to in paragraph 4 above, the applicant has been convicted of the following road traffic offences:
Court
Court Date
Offence
Court Result
Perth Magistrates Court
02 Dec 2009
Drive Vehicle Contrary
to Compliance Notice (Conditions)Convicted. Fined $600.
Perth Magistrates Court
14 Feb 2012
Drive Whilst Suspended
Exceed Speed
Convicted. Fined $300.
Convicted. Fined $150
(Exhibit R1, G4, p 29)
The Applicant’s Evidence
The applicant gave evidence to the following effect:
·he grew up in India, was educated there and completed an apprenticeship as a tool and die maker in 2000, and then worked there for three years;
·he then left India, aged 21 years, and went to Singapore where he worked as a tool and die maker until 2006;
·he then migrated to Australia, initially staying for one day in December 2006 in order to “activate [his] residency”, and subsequently returning in May 2007 when he went to Tasmania before coming to Perth in 2008;
·he has resided and worked in Perth since then;
·his mother, brother and sister live in India;
·his fiancée and their 4-year-old daughter live in Indonesia;
·he first met his fiancée in 2003 in Singapore and they became engaged when he visited her in Indonesia in 2008 but they were not able to get married in Indonesia because of their different religions – he is Hindu, she is Muslim;
·his fiancée was nine months pregnant at the time and he became depressed as a result of his unsuccessful attempt to marry her in Indonesia;
·he then returned to Perth and felt “very stressed”;
·friends then “misdirected” him and he “lost [his] way” – he went with them to the casino where he gambled and drank;
·although he had a good job and earned a good income, he got into financial difficulty through gambling, losing his rental accommodation and his car;
·he then moved to a “backpacker” hotel where he met a Japanese girl who was on a working holiday and they commenced a sexual relationship and lived together in rental accommodation for about six months;
·his relationship with the Japanese girl was “addictive”;
·the Japanese girl introduced him to online chatting and, as she was shortly going leave, he started to use an internet chat room in order to find a companion to replace her;
·at first nobody was responding to his messages but eventually he had a reply from someone who told him she was 13 years old;
·they started to have conversations of a sexual nature and he sent pornographic images to her a few times and, because she “accepted” those images, he thought that she was over 13 years of age;
·he asked her if she was older than 13 but she kept telling him that she was 13 years old;
·they had more than 10 conversations of a sexual nature over a period of seven weeks;
·he arranged a meeting with her because he “thought that she might be more than 13 years old”;
·his intention was to meet her and “to have sex with her if she was old enough”;
·he had been sexually abused by an older woman when he was 13–15 years old;
·he has been a frequent user of pornography;
·he had sex with prostitutes when he was in Singapore;
·the judge’s remarks, when sentencing him for his offences, were correct;
·his sentence ends on 3 December 2012;
·he was refused parole because of “unmet treatment needs” although it was acknowledged that there was a low risk of re-offending;
·his fiancée and their daughter live with her aunt in Indonesia;
·although he intended to sponsor her to come to Australia he did not do so because he “went in the wrong direction”;
·he has never met his daughter – he has seen only photographs of her – but he talked with her, and his fiancée, on the telephone 3 – 4 times per week before he went to prison, and monthly since then;
·he regularly sent money to his fiancée in Indonesia and genuinely wants to sponsor her and his daughter to come to Australia.
Other aspects of the applicant’s evidence will be referred to later in these reasons.
Additional Material
Letters from the applicant’s fiancée
The following letter, dated 1 December 2011, is included in the G Documents (G26, pp 141–143):
“ I am dwi eliyah 27 yr old … fiancé of selvam mayathevar, explaining about the fiancé relation between me and my husband selvam mayathevar.
…
My fiancé relation with selvam mayathevar
First time I met him in Singapore where he was living next to my house and used to come to my landlord’s place often to attend bhuddish and hindu religious function he is polite, friendly and easy going person.
Because of his caring character, we used to meet often. After few months, we were loving each other and decided to get married. But in Singapore we couldn’t get married because we both were in working visa. (as per Singapore any one of us should be a permanent resident).
Migration planning
During the period of our relationship, he told me that he wish to migrate to Australia as a skilled migrant. He got his permanent residency for Australia on july 2006 while he is working in Singapore. After that he wanted to go to India for his sister marriage, then go to Australia to find job first and promised me to take to Australia by sponsoring. After he left from Singapore to Australia, I am not happy to live in Singapore because my dreams all about to live with him in Australia. So I decided to go back to Indonesia, that time I was pregnant (2 month) because of the relation selvam mayathevar. In 2008 january, I returned to Indonesia to give birth.
Marriage battle
During that period he was in Australia, who wanted to come to Indonesia to get married. In 2008 august, he came to Indonesia for our marriage, but Indonesian government didn’t allow him to do that, because of useless religion. (I am muslim and he is hindu).
I tried to convenience the ‘HEAD OF MOSQUE’, but he told me to change his name by coverting his religion from hindu to muslim. Because of this incident his family got angry with him in a bad manner, he was not happy to do that, then he decided to go back to Australia.
Then we always talking through the telephone and sharing our feeling through e mail.
After this marriage failure, we were totally depressed.
After he left from Indonesia, his character changed totally because of his friendship circles, he started gambling, drinking, smoking … etc.
He shared all those things with me and apologised many time, but he was addicted to gambling, he lost lots of money and it ends up in bad credit history, but still he managed to send money every fortnight to look after me and our child, because we were totally depending on him. I haven’t’ got any job here.
Last year 2010 august, he told me that he did a mistake without knowing the consequences, and he explained everything about the charges against him, he also told that he is worrying about the financial help to us if he got, imprisionment, that what worrying me as well.
But still I couldn’t believe that he had done that offences.
Be honest I wish to say that he is from such a traditional culture based family, also his family doesn’t know those charges. If they come to know, I cannot imagime the consequences.
Now I have 3 yr old baby girl … who didn’t see her father till now.
We haven’t got any idea if he got any sentence like imprisionment, here nobody to financially support us. I am really worrying my daughter’s future and about him. Everyday I am praying to god to go to Australia and see him as early as possible for our future. I hope that god will help him to get out of this trouble and save our life.
Declaration
I am dwi eliyah declaring that the information provided above is true and believe to my knowledge.” (sic) (original emphasis)
The following letter from Dwi Eliyah, dated 5 July 2012, was tendered in evidence by the applicant (part of Exhibit A2):
“ I am writting this letter of support to assist my husband selvam mayathevar for review the decision of Department of Immigration and Citizenship to retain his visa to stay in Australia.
My husband contacted me from prison and told me that his visa was cancelled due to substantial criminal record. It is hard to digest.
I am well and truly aware of his offence, as well as the causes to accelerate to his offence.
I have already sent a letter for sentencing purpose, which explains the way of our relationship started and his commitment.
Last 8 months, after his sentence of imprisionment, we are suffering too much for daily life. As I haven’t got any support here, it is hard to give food my daughter. There is no job here.
Still it is hard to believe that he had committed such offence.
He talked through phone and felt sorry for what he has done.
I am also aware that the rehabilitation he has done and future rehabilitation.
I will mentor him in future to make sure that his rehabilitation.
He told that his employer helped him lot.
We totally depend on him. I talked his brother. They also sad about this decision.
I am also aware that his community in India angry with me and with him as well, as he married with me. In this situation if he go to India, its not safe. When we in Singapore, our dream to settle down in Australia.
He is a hard worker and committed to family. I strongly believe that he learned from his mistake. Pls help him. Everybody deserves forgiveness” (sic)
Letters from the applicant’s former employer
The following letter from Roger Hill, dated 2 December 2011, is included in the G Documents (G24, p 138):
“ I am the owner of Boyd Metal Industries … (Boyd).
Boyd has employed Selvam Mayathevar since April 2008. He works as pressbrake operator in our Processing (metal forming) division. A pressbrake is a press which bends steel plate. It has one blade; the name pressbrake differentiates it from a 4-pillar press. Selvam operates a range of pressbrakes, from small ones (4m width, 200 tonne power) to our largest machines, 7.4 metre x 1000t power and 12m x 1100 tonnes. Although it is a highly-skilled job to be able to press cones and other complex ‘shapes’ there is no trade apprenticeship or qualification to become a competent pressbrake operator, it is a skill which is learnt on the job.
Selvam is one of our better pressbrake operators and has improved considerably in his skill level in the 3 and a half years he has worked for Boyd. He has also become more diligent and serious in his approach, particularly in the last year. His attitude is always co-operative. While his attendance initially during his time at Boyd was patchy it is now reliable, his attention to detail and avoidance of mistakes is good and because he is able to operate a number of the pressbrakes his versatility is useful to us. In recent months the Processing Manager has been able to have Selvam work alongside trainees to guide/instruct them.
Because of Selvam’s abilities he will be welcome to continue to be employed here, should he be free to do so following his Court proceedings. I have been aware of the charges to which Selvam has pleaded guilty from an early stage and Boyd has assisted him by financing some of his legal representation expenses. I had occasion earlier during Selvam’s time at Boyd to try to assist him when I felt he had been unfairly treated in a commercial matter (a motor vehicle), and while the present charges are a very different matter it seems to me that Selvam would in each case have benefited from being in a country he understood better and in which he might have had helpful advice around him. His personality appears to be quite high-spirited, although that has not been much in evidence this year. But it surfaces as a healthy willingness to offer work-related opinions, often usefully. Overall, though, he strikes me as immature and somewhat juvenile. There are others at Boyd who are from India, as Selvam is, but as far as I know they don’t mix socially.
I am also aware that Selvam has family responsibilities in Indonesia, and he is remitting money there as well as making re-payments to Boyd from his wages for his legal fees. I write this letter in the hope that it might assist the Court, and that it might play a part in Selvam being able to remain at Boyd.”
The following letter from Mr Hill, dated 12 April 2012, is also included in the G Documents (G24, p 139):
“ I am the owner of Boyd Metal Industries and write this letter in support of submissions concerning a possible cancellation of Selvam’s Skilled Independent Visa.
Selvam has been employed by Boyd since 15 April 2008. He is a trained Pressbrake Operator. That skill is in short supply in Western Australia and we are anxious to have Selvam re-join our workforce when he is released from prison, which I understand, is likely to be next month. I have been aware of the charges against Selvam from the beginning and assisted him to obtain legal representation, since his skills are valuable to Boyd and we would like to retain them if possible.
I hope that discretion can be exercised in Selvam’s favour to allow him to remain in WA and in Boyd’s employ.”
The following letter from Mr Hill, dated 31 July 2012, was tendered in evidence by the applicant (part of Exhibit A2):
“ I have been requested by Selvam Mayathevar (Selvam) to provide a letter of reference for him to use in the application he is making for review of a decision to cancel his visa.
Boyd Metal Industries (Boyd) has employed Selvam since April 2008. I wrote a reference for Selvam in December 2011 to be used at his sentencing. I enclose that letter, and adopt its contents of the purposes of this reference. The position of pressbrake operator remains available to Selvam should he be able to resume employment here. I would like to emphasise the point about Selvam’s immaturity – which might be expected to have been changed considerably by the present experience including 8 months in prison. Although in his late twenties when these offences were committed, Selvam has always seemed far younger, reflected in poor choices in his private life, his expensive experience with the used-car industry being one example. If this experience has greatly accelerated Selvam’s growing-up that will be relevant to a consideration of any risk of the conduct being repeated.”
Letter from the applicant’s brother
The following letter from the applicant’s brother, Krishnamoorthy Mayathevar, dated 15 June 2012, was tendered in evidence by the applicant (part of Exhibit A2):
“ How are you? We are not in a good situation to accept that you are in prison.
We are really suffering both financially and mentally. Mum health also not in good condition.
Everyday she thinking about you. We didn’t expect that you end up in prison. Still we can’t believe.
Eliya called us from Indonesia and asked some financial help. But we are not in a situation to help her. She always worrying about you – your daughter also getting sick often and Eliya can’t afford to look after, as he haven’t got any job in Indonesia.
Your friends also phoned us and asked the money you owned from them, for your legal expenses.
We thought that you might get out from prison and pay them, their debt.
But, now you are telling that your visa been cancelled. I told about this to mum, but she worried about you too much.
She also worried about your safety in our community as you are in relationship with muslim girl. I don’t know how to explain to you.
We were happy as you are in Australia. But now, its different story.
Now, you are facing so many troubles, its not good to hear. Some people in our Community thinking that you betray to our religion.
Our first worry about your safety, if you stay away from our home (I mean india), you will be okay.
The money owned is too much. Why you want that kind of expensive experience? I think your friendship circles aren’t good enough.
We heard that your employer helped you lot, is it?
I hope still you will have that job.
I am really proud that still you managed to do psychological therophy on your own cost!
If I have some money, I will come to Australia and support you.
But you knew our situation.
Mum and me knew very well about your commitment about our family and to your wife and daughter.
It is really disgraceful to be in prison being an indian. (you knew that). Still we cannot belive, that’s totally out of your character.
Ask apologise to god, he will save you.
…” (sic)
Other material
Further material which is in evidence will be referred to later in these reasons.
Analysis
Application of the “character test”
By reason of the fact that the applicant was, on 22 December 2011, sentenced to 14 concurrent terms of imprisonment of 12 months each, the Tribunal finds that the applicant has a “substantial criminal record”, as defined in s 501(7) of the Act, and that, by reason of s 501(6)(a) of the Act, he does not pass the “character test”
It follows from that finding that the discretionary power to cancel the visa, pursuant to s 501(2) of the Act, is enlivened in this case.
Should the discretionary power to cancel the visa be exercised in this case?
Part B of Direction [41] comprises paragraphs 8–11. Paragraph 9 states:
“(1) … decision-makers must take into account the primary considerations in every case. The other considerations (defined in paragraph 11) should be taken into account where relevant.
Note:The primary considerations are set out in paragraph 10 of this Direction. The other considerations are set out in paragraph 11.
(2) Decision-makers should only take into account directly relevant considerations.
…”
The Primary Considerations
Paragraph 10 sets out the primary considerations as follows:
“ 10. The primary considerations
(1)In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:
(a)the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b)whether the person was a minor when they began living in Australia;
(c)the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d)relevant international obligations, including but not limited to:
(i)the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
(ii)the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).”
Protection of the Australian community
Paragraph 10.1 states:
“ 10.1 Protection of the Australian community
(1) Due consideration is to be given to the Government’s objectives set out in Part 1, paragraph 5 of this Direction.
(2) The factors relevant to assessing the level of risk of harm to the community of the person’s entry or continued stay include:
(a) the seriousness and nature of the relevant conduct; and
(b) the risk that the conduct may be repeated.”
The objectives set out in Part 1, para 5 are as follows:
“ 5.1 Objectives
(1) The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens.
(2) In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.
(3) The Government is especially mindful to protect the safety of the community’s more vulnerable members, including minors, the elderly and the disabled.”
The seriousness and nature of the relevant conduct
Paragraph 10.1.1(1) states:
“ 10.1.1 The seriousness and nature of the conduct
(1) Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community. Those crimes involving violence, particularly against vulnerable persons (such as minors, the elderly and the disabled), are especially abhorrent to the whole community.”
Paragraph 10.1.1(2) lists (in paras (a)–(m)) “examples of offences and conduct that are considered serious”, including (relevantly):
“ (b) all offences perpetrated against a child (particularly sexually-based offences);”.
Paragraphs 10.1.1(3) and 10.1.1(4) relevantly state:
“(3) The sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community. Due regard must be given to the extent of the person’s criminal record, including
(i)the number and nature of offences;
(ii)the period between offences; and
(iii)the time elapsed since the most recent offence.
(4)The following factors are also to be considered:
(a)any relevant information, including, but not limited to, evidence from independent and authoritative sources in respect of the person such as judicial comments in an individual’s case, professional psychological reports, pre-sentence reports for the courts, parole assessments, victim impact statements and similar sources of authoritative information or assessment;
(b)any relevant factors the person provides as mitigating factors;
…”
The applicant acknowledged that he had committed offences “of a serious nature” but submitted that, having regard to his sentence of 12 months’ imprisonment for each offence (whereas the maximum sentence prescribed for each such offence is 5 years’ imprisonment), his offending was “at the lower end of the scale”. He also referred to the sentencing judge’s comment that, in his case, there was “no victim to be vindicated as such”.
It is clear, however, that the sentencing judge regarded the applicant’s offending as serious in that he:
·referred to the Attorney-General’s second reading speech in relation to the bill which resulted in the enactment of the Act which created the offences of which the applicant was convicted, in which reference was made to the nature of the conduct against which that legislation was aimed, namely, sexual exploitation of, or preying on, children through contact on the internet or other means of electronic communication;
·described the purpose of that legislation as the protection of children;
·cited an earlier judgment of the Court of Criminal Appeal in which the seriousness of the offence and the “paramount public interest in protecting children from sexual abuse” were mentioned;
·referred to the “aggravating features” of the applicant’s offending as follows:
“ … the age disparity between the child persona and yourself; she then 13, you then 29, the fact that your offending persisted over a period of seven weeks and only came to an end when you were arrested, the transmission of sexually explicit photographs depicting an erect penis and images of sexual activity and, most significantly, the fact that you arranged a meeting with the child persona and were arrested at the arranged meeting place in possession of items related to sexual activity.”;
·imposed a sentence of immediate imprisonment for 12 months in respect of each of the 14 offences of which the applicant was convicted (the sentences to be served concurrently).
The applicant submitted that the Tribunal should have regard to his “personal background”, as set out at length in his letter of 7 May 2012 to the Department (G20, pp 116 – 121), as mitigating factors. The Tribunal has considered the relevant contents of that letter but it does not regard the information provided therein as significantly mitigating the seriousness of the applicant’s offending. The Tribunal notes, in this connection, that the sentencing judge referred in detail to the applicant’s personal background and circumstances and concluded that they did not substantially reduce his culpability.
In the Tribunal’s opinion, having regard to:
·the nature of the offences committed by the applicant, involving the use of electronic communication with intent to procure a person who he believed to be a 13-year-old girl to engage in sexual activity, and with intent to expose such person to indecent matter; and
·the fact that the applicant’s offending (comprising 14 such offences) persisted over a period of seven consecutive weeks and, as the sentencing judge mentioned, only came to an end when he was arrested;
the applicant’s conduct in committing those offences is a matter of great concern to the welfare and safety of, in particular, young members of the Australian community, and that conduct is repugnant and clearly unacceptable to the Australian community and it must be regarded as involving serious criminality for the purposes of para 10.1.1 of Direction [41].
The risk that the conduct may be repeated
Paragraph 10.1.2 of Direction [41] states:
“ 10.1.2 The risk that the conduct may be repeated
(1)The person’s previous general conduct and total criminal history are to be considered highly relevant to assessing any risk of re-offending.
(2)The following factors are to be considered as particularly relevant to this assessment:
(a)a recent history of convictions, which should be considered as indicating an increased risk of re-offending;
(b)evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation. Greater weight should generally be given to evidence from independent and authoritative sources, such as judicial comments, professional psychological reports, pre-sentence reports for the courts, parole assessments, and similar sources of authoritative information or assessment; and
(c)evidence that the person has breached judicial orders, including parole, bail, bonds, suspended sentences and any other relevant undertakings or conditions imposed by the courts.”
The applicant’s total criminal history comprises the 14 abovementioned offences set out in paragraph 4 above, which were committed by him in the period from 1 June 2010 to 19 July 2010, and the road traffic offences set out in paragraph 10 above.
As regards rehabilitation, the Tribunal notes that, following an assessment by Ms Christabel Chamarette, Clinical Psychologist, dated 28 April 2011, of the applicant’s “suitability to join a community-based treatment program for internet sex offenders” (G18, pp 102–104 – referred to in the sentencing remarks of Staude DCJ set out in paragraph 9 above), the applicant completed that program comprising 26 weekly sessions from June to November 2011. A report dated 20 December 2011 by Mr Peter Dunlop, Clinical Psychologist, who, with Ms Janice Paige, Psychologist, facilitated that program, is included in the G Documents (G28 – also referred to in the abovementioned sentencing remarks). Mr Dunlop’s report, which sets out at length the applicant’s background, sexual development and personal circumstances, and the circumstances of his offending, concludes as follows:
“ From the viewpoint of his risk of reoffending, I am of the opinion that the work he has done in the group, particularly the work on victim empathy and relapse prevention will stand him in good stead from this viewpoint and that a relapse is highly unlikely. In addition to this, I am mindful that his offending arose as a consequence of a series of events which led to him spiralling downwards, confused and ultimately out-of-control as a result of being unable to carry out what he is (sic) ethical standards dictated in relation to supporting and marrying his fiancée when he found that she was pregnant. These are circumstances which are unlikely to occur again. I also believe that it will be helpful for him to continue individual psychotherapy as there are still some outstanding issues with regard to his adjustment arising from the events that occurred in the period between when he was 13 and 15 years old.
From the viewpoint of his long-term rehabilitation I am of the opinion that it would be very helpful, if the court sees fit, for his sentence to be of a kind which would provide the opportunity for him to continue treatment and also to continue to support his fiancée and their daughter who is now three years old and to work towards a resolution of the difficulties they have had in getting married.” (G28, p 172)
A subsequent report by Mr Dunlop, dated 8 May 2012, which is addressed to the Department of Immigration and Citizenship (“Department”), notes that the applicant had attended six individual psychotherapy sessions with him in the period from 9 November to 13 December 2011, and concludes as follows:
“ … In the group therapy programme he participated actively and contributed well. He also responded well in the one-to-one psychotherapy sessions with me. Overall he made very good progress from the viewpoint of accepting responsibility for his offending, understanding the factors which contributed to it and working towards overcoming these. By the end of this process I had come to the conclusion that he had reached a point where he was unlikely to reoffend in this or any other way. He has since indicated that he would like to continue psychotherapy with me upon his release from prison. This will provide an additional safeguard and the opportunity for him to work on any outstanding psychological difficulties he might have.
In summary, I am of the opinion that Mr Mayathevar’s offending was out of character and that the therapeutic work he has done as well as the impact of the court proceedings and imprisonment stand him in good stead from the viewpoint of there being a very low risk of him reoffending. In view of the above I support, without reservation, his request that his Visa not be cancelled.
…” (G22, p 133)
The applicant tendered in evidence a further report by Mr Dunlop, dated 3 August 2012 which is addressed to the Tribunal. That report states as follows:
“ I have been asked by Mr Mayathevar to write in support of his appeal against the decision for his Visa to be cancelled as a consequence of the convictions and the sentence passed upon him at the District Court of Western Australia on December 22, 2011. I am very pleased to be able to do this as I had considerable professional contact with him during 2011 as one of the facilitators of the group treatment program designed specifically to assist individuals who have committed child sexual abuse or related Internet offences (See attached). He attended 23 out of the 26 available weekly sessions and had 3 one-to-one therapy sessions to make up for the group sessions which he missed due to work commitments. I also saw him individually for an additional 6 one-to-one sessions and prepared a report for the court which I understand has been included in his submission to the Tribunal. The group sessions were for between 2 ½ and 3 hours. So I had in total of the order of 70 to 75 hours contact with him and therefore am in a position to form a well-based opinion with respect to his character and future prospects.
In summary, based on the above contact with him my conclusions are that he is fundamentally of good character and that his offending was completely at odds with this and represented a temporary aberration in his behaviour rather than a long-term pattern. His good character is evident in his attitude and behaviour at work as reported by his boss and the way in which he has over the years accepted and to a large degree fulfilled his responsibilities as the older son and therefore head of his family in India following his father’s death by providing them with financial support and carrying out other duties. He has also taken his responsibilities to his fiancée who currently resides in Indonesia and their daughter on board in healthy and responsible way except during the period immediately following his visit to Indonesia with the plan to get married. The plan was thwarted as a consequence of unexpected problems arising from the differences in their religions. His frustration and disappointment in this regard led to him becoming deeply depressed and badly running off the rails for a period immediately following his return to Australia. It started with him taking up gambling and drinking at the Burswood Casino, becoming addicted to the former and then fruitlessly chasing his losses. During the same period he became involved in a rabidly sexual relationship with a young Japanese woman which, after she left Australia, led him to become involved in sexually charged chat room conversations with someone he was led to believe was a 13 year old girl. It culminated in him arranging to meet ‘her’ and his arrest. As indicated in my report Mr Mayathevar’s vulnerability to becoming involved with the Japanese woman and then the ‘13-year-old girl’ online arose as a consequence of a defect in his sexual development due to him having been sexually abused by an older woman from when he was 13–15 years old.
Mr Mayathevar responded well to both the group and individual therapy and made a lot of progress with respect to developing insights into himself and understanding of both the immediate and long-term factors which had contributed to his offending. At the time of writing the report I was of the opinion that he was ‘highly unlikely’ to reoffend. I also indicated that I believed it would be ‘helpful for him to continue individual psychotherapy as there are still some outstanding issues with regard to his adjustment arising from the events that occurred in the period between when he was 13 and 15 years.’
Notwithstanding that I am still of the opinion that his risk of reoffending is still very low. This risk could the (sic) reduced to the lowest level possible if he was to continue with one-to-one therapy as I suggested in my report. I have discussed this with Mr Mayathevar. He has indicated that he is willing to commit himself, contractually necessary (sic), to continue with psychotherapy with me until such time as it is considered his risk of reoffending has reached the lowest level possible. I have drawn up such a contract for him to sign on (sic) to that effect. If it is considered by the Tribunal that this contract should be modified in any way I would be happy to take it on board.
…” (part of Exhibit A2)
The applicant also tendered in evidence (part of Exhibit A2) a copy of a document headed “Treatment Contract”, signed by Mr Dunlop and himself, dated 3 August 2012, whereby Mr Dunlop agreed:
“ to provide Psychological treatment for Mr Selvam Mayathevar which is directed at assisting him to deal with and resolve the factors in his personality, character and history which contributed to him committing the offences for which he was sentenced in the District Court Western Australia on December 22, 2011 over the next two years or for such time as is necessary to safely conclude that he has reached the point where his risk of reoffending is as close as is possible to zero”
and the applicant agreed:
“ to undertake the above Psychological treatment as prescribed by Peter Julien Dunlop, attend treatment sessions as required and pay all reasonable fees for these”
and, during the period of treatment:
“ to ensure that any contact with children under 16 is within the sight of a supervising adult who is aware of my offences”.
The Tribunal, however, also notes that Staude DCJ in his sentencing remarks, having referred at length to Mr Dunlop’s abovementioned report of 20 December 2011, said:
“ The great majority of offenders who are dealt with for cyber-predatory offences and also child pornography offences, which have some significant similarities in that they are not offences which necessarily lead to actual child abuse, but are nevertheless exploitative and abusive, are persons of otherwise good character and without a record. They can point to some reason to explain their disordered or unnatural interests or their weakness in giving way to such tendencies.
People who are happy and healthy and well adjusted don’t commit these offences or are very unlikely to do so, it would seem. So it’s generally the case that people either have some disordered affection for young children, or they are, by reason of personal circumstances, weak and liable to give way to tendencies to engage in this activity.” (G5, 39)
As regards the abovementioned comments of Staude DCJ, the applicant acknowledged those comments and said that he has been “working on” those issues with Mr Dunlop. He also (in a written submission – part of Exhibit A2) described the benefits he has derived from the abovementioned program co-facilitated by Mr Dunlop and Ms Paige as follows:
“ … This program not only helped me to realise the consequences of my offence but also helped me to understand the importance of protection of the Australian community.
This programme helped me in many ways such as:
(I) Accepting the responsibility of my offence
(II) Factors which may lead to offending
(III) Effect of sexual abuse on victims
(IV) Coping skills needed during crisis
(V)Heal from the effects of my own childhood trauma as I am fully accepting the responsibility for my action …
(VI) Examine my childhood issues that have impacted on my life
(VII) To mature emotionally
(VIII) Build self knowledge gained in childhood issues
(IX) Personnel rights and boundaries using art therapy” (sic).
His written submission concluded as follows:
“ I am completely accepting and apologise for my conviction. I will never repeat my mistakes as I have received sought (sic) counselling for my behaviour.
The last 8 months imprisonment has made a huge impact on my life, I believe that I have grown and matured to become a responsible adult that can make a huge difference to Australian community and support my family;.
I took this imprisonment as an opportunity presented to me to realise the consequences faced.
I do not intend to let my family down again and I am also eager to regain my reputation in the community and keep myself occupied by further psychological therapy and employment.
…”
The Tribunal accepts that the applicant’s arrest, conviction and imprisonment, together with the cancellation of the visa, have had, and will continue to have, a significant deterrent effect on him. The Tribunal also accepts, having regard to Mr Dunlop’s abovementioned reports and the applicant’s own evidence, that he has progressed a considerable way down the path towards rehabilitation and that he has prospects of further rehabilitation. It is clear, however, as indicated by Mr Dunlop’s recommendation that the applicant continue with psychotherapy further to reduce the risk of his re-offending, that his rehabilitation is not yet complete and the risk of his re-offending (albeit “very low”) remains.
Having regard to the whole of the evidence before it, the Tribunal accepts the respondent’s submission that there is presently a real risk of the applicant’s re-offending in a similar manner. In the Tribunal’s opinion, having regard to the serious and abhorrent nature of the applicant’s offending, the presence of a real risk of his re-offending in a similar manner would be unacceptable to the Australian community.
Conclusion regarding protection of the Australian community
Having regard to the abhorrence of the applicant’s offending and to the Tribunal’s finding that there continues to be a real risk that he may re-offend in a similar manner – a risk which, in the Tribunal’s opinion, would be unacceptable to the Australian community – the Tribunal concludes that this “primary consideration” weighs in favour of cancellation of the visa to a significant degree.
Whether the person was a minor when they began living in Australia
Paragraph 10.2 of Direction [41] states:
“ 10.2 Whether the person was a minor when they began living in Australia
(1)If the person was a minor when they began living in Australia and spent their formative years in Australia, thereby increasing the likelihood of establishment of greater ties and linkages to the Australian community, this is to be given favourable consideration.
(2)Less weight should be given if the person began living in Australia as a minor but was close to attaining adulthood at that time.
Note: For example, if the person was between 17 and 18 years old on arrival.”
By paragraph 6(1) of Direction [41] the word “minor”, for the purposes of the Direction, “has the same meaning as in section 5(1) of the Act”, namely, “a person who is less than 18 years old”.
The applicant was about to turn 25 years of age when he began living in Australia in May 2007. The applicant was, therefore, not a “minor”, within the meaning of para 10.2 of Direction [41], when he began living in Australia.
Accordingly, this “primary consideration” cannot assist the applicant’s case. The Tribunal regards it as a neutral consideration, neither weighing in favour, nor weighing against, cancellation of the visa.
The length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity
Paragraph 10.3(1) of Direction [41] states:
“ 10.3 The length of time that a person has been ordinarily resident
(1)Reflecting the fact that the longer a period of residence in Australia the greater the likelihood of significant ties to the Australian community, more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character.
Note:For example, a period of more than 10 years of residence in Australia prior to a person engaging in criminal activity or activity which bears negatively on the person’s character would be an important consideration.”
It is common ground that the applicant has been ordinarily resident in Australia from 5 May 2007 and that the date on which he first engaged in committing the abovementioned “internet sex” offences in Australia was 1 June 2010. He had previously been convicted of a relatively minor road traffic offence on 2 December 2009.
Having regard to the fact that the applicant was ordinarily resident in Australia for only three years before he commenced to commit the relevant “internet sex” offences, this “primary consideration” does not weigh against cancellation of the visa and may instead be regarded as weighing in favour of such cancellation: Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390.
Relevant international obligations
Paragraph 10(1)(d) of Direction [41] refers to
“ relevant international obligations, including but not limited to:
(i)the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
(ii)the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).”
Direction [41] relevantly states:
“ 10.4 International obligations
(1)Reflecting Australia’s obligations under the CROC, if there is a child in Australia who is potentially affected by a visa refusal or cancellation decision, decision-makers must have regard to the best interests of the child.
…”.
It is common ground that the applicant’s only child resides with her mother in Indonesia and has never visited Australia. Accordingly, no relevant obligation under the Convention on the Rights of the Child arises for consideration in this case.
It is also common ground that no non-refoulement obligation under any of the international instruments referred to in para 10(1)(d)(ii) of Direction [41] arises for consideration in this case.
Accordingly, this “primary consideration” is not applicable in this case.
Other Considerations
Paragraph 11 of Direction [41] states:
“11Other considerations
Note: These are not primary considerations.
(1)In reaching a decision on whether to refuse or cancel a visa, other considerations, although not primary, may be relevant and, if so, must be considered.
(2)It is appropriate that these considerations, where relevant, must be taken into account but, generally, they should be given less weight than that given to primary considerations.
…”
Subparagraph (3) of para 11 sets out (in paras (a)–(g)) a non-exhaustive list of “other considerations”. The Tribunal will specify, and comment upon, each of those “other considerations” below.
Family ties, the nature and extent of any relationships
According to the applicant’s own evidence:
· he is the only member of his family who resides in Australia;
· his mother, brother and sister reside in India;
· he is engaged to marry Dwi Eliyah but she, and their young daughter, presently reside in Indonesia and neither of them is an Australian citizen or permanent resident.
Although the applicant has no family ties in Australia, he has been gainfully employed in Australia since his arrival in May 2007, being with the same employer (Boyd Metal Industries) from April 2008 until his incarceration in December 2011. That employment will, according to the employer, be available to him upon his release from prison in December 2012 if he remains in Australia. This consideration, insofar as it involves the applicant’s employment ties to the Australian community, weighs against cancellation of the visa.
The person’s age
The applicant is presently 30 years of age. The applicant’s age is not a significant consideration in this matter.
The person’s health
The only health issue which the applicant raised relates to “abnormal urinating conditions” which he said that he was “suffering before migrating to Australia” and which “took a couple of years to cure”, and that for the last 7-8 months he has been “having similar trouble in urinating”. He tendered in evidence the report of an ultrasound of his urinary tract, dated 10 July 2012, and the results of a blood and urine test performed on 30 April 2012 (part of Exhibit A2), which appeared to be normal. He said, however, that the doctor had recommended that he undergo a CT scan but that has not yet occurred.
The applicant submitted that, if he were removed from Australia, he would be unable to “afford to look after [his] health” and would be “unable to continue the medical procedures as the Indian Government doesn’t provide any Medicare as in Australia”. The Tribunal is prepared to accept that medical treatment for the applicant’s urinary tract condition would be less readily available to him in India than in Australia but it does not accept that he would be unable to obtain such treatment in India.
The Tribunal does not regard the applicant’s health as a significant consideration in this matter.
Links to the country to which the person would be removed
The applicant was born, raised, educated, completed a trade apprenticeship, and was employed in India until late 2003 when he moved to Singapore, aged 21 years. His surviving parent (his mother) and his only two siblings (a brother and a sister) continue to reside in India. In his letter of 7 May 2012 to the Department (G20), he noted:
“ Despite what I did this year (sic) we are still a very close family and the prospect of me getting deported is drawing us closer together.”
The Tribunal is satisfied that the applicant retains substantial familial and cultural links to India and, in its assessment, this consideration does not weigh against cancellation of the visa.
Hardship likely to be experienced
The applicant submitted that, if he were removed from Australia, he would suffer hardship in the following respects:
·he would no longer be able to sponsor his fiancée and daughter to migrate to Australia and he would be unable to live together with his fiancée elsewhere because of their different religions;
·it would be “certainly impossible” for him (a Hindu) to live with his fiancée (a Muslim) in India and, because of his relationship with her, it would not be safe for him to return to India because of the view of people in his family’s local community that he had betrayed his religion;
·he would lose the opportunity to be re-employed by his former employer in Perth and would suffer financial hardship, and, as a result, he would be unable to settle debts owed to his former employer and friends in Perth and to provide for his family;
·he would be unable to continue with his psychotherapy treatment program with Peter Dunlop and to complete his rehabilitation.
He also submitted that his fiancée and daughter would thereby suffer hardship in that they would lose the opportunity to have a better future in Australia and would be deprived of the financial support that he would otherwise have been able to provide to them.
The Tribunal accepts that the applicant’s removal from Australia to India would cause him to feel disappointed and distressed by reason of the loss of a future life and career in Australia and would be likely to result in personal discomfort and financial disadvantage to him in India. The Tribunal, however, is not satisfied that, given his trade qualification and experience, he would be unable to gain employment in India; nor is it satisfied that his personal safety in India would necessarily be threatened because of his relationship with his fiancée. As regards the applicant’s fiancée and daughter in Indonesia, the Tribunal accepts that they would be financially disadvantaged by his inability to continue to provide substantial financial support to them, but it doubts that the applicant’s removal from Australia would actually deprive them of a future in Australia because it is not satisfied, having regard to the applicant’s failure to take any action to sponsor their migration to Australia since his arrival in May 2007, and notwithstanding his previous regular provision of financial support to them, that he had, or has, a genuine intention to do so.
The Tribunal nevertheless accepts that the abovementioned considerations regarding likely hardship weigh against cancellation of the visa.
Level of education
As previously mentioned, the applicant has a trade qualification as a tool and die maker and, since his arrival in Australia in May 2007 (until his incarceration in December 2011), he has been employed, and gained substantial experience, as a pressbrake operator. His former employer in Perth has indicated that that employment would be made available to him upon his release from prison.
The Tribunal is satisfied that the applicant presently, without any further education, has the capacity to contribute positively to the Australian community through employment. Accordingly, this consideration weighs against cancellation of the visa.
Whether the person has been formally advised by the Department about conduct that brought the person within the character (visa refusal and cancellation) provisions of the Act
It is common ground that, prior to his commission of the relevant “internet sex” offences in June/July 2012, the applicant had not been formally advised by an officer of the Department about conduct that brought, or would bring, him within the provisions of the Act relating to visa refusal or cancellation on character grounds. Accordingly, this consideration is not relevant in the present case.
Conclusion
Having considered the applicable “primary considerations” and the other relevant considerations in this case, the ultimate task of the Tribunal is to determine, on the basis of the appropriate weight to be given to each of those considerations having regard to Direction [41], whether those considerations, on balance, weigh in favour of cancellation, or weigh against cancellation, of the visa.
As regards the primary considerations, the protection of the Australian community weighs in favour of cancellation of the visa to a significant degree, and none of the other primary considerations weighs against cancellation of the visa.
As regards the other considerations referred to in paragraphs 53 – 66 above, none of those considerations weighs in favour of cancellation of the visa, whereas some of those considerations – in particular, hardship considerations, and the applicant’s employment record in Australia and his capacity to contribute positively to the Australian community through employment – weigh against cancellation of the visa.
Paragraph 11(2) of Direction [41] states that the relevant considerations, other than the primary considerations, “generally … should be given less weight than that given to primary considerations”. In the Tribunal’s opinion, there is no good reason for departing from that general principle in the circumstances of the present case. In the present case, the Tribunal regards it as appropriate to attach greater weight to the “primary consideration” regarding the protection of the Australian community, which weighs in favour of cancellation of the visa, than to those other considerations referred to in paragraph 69 above which weigh against cancellation of the visa.
The Tribunal concludes, therefore, that, having regard to the totality of the applicable “primary considerations” and the other relevant considerations in this case, those considerations, on balance, weigh in favour of cancellation of the visa. The Tribunal, furthermore, is of the opinion that, having regard to its finding that there continues to be a real risk that the applicant may re-offend in a similarly serious manner and its opinion that such risk would be unacceptable to the Australian community, cancellation of the visa would accord with the standards, values and expectations of the Australian community. Accordingly, the preferable decision in this case is that the visa be cancelled pursuant to s 501(2) of the Act.
Decision
For the above reasons, the decision under review is affirmed.
I certify that the preceding 72 (seventy-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop .......sgd E Jordan.............
Administrative Assistant
Dated 28 August 2012
Date of hearing 13 August 2012 Applicant In person Counsel for the Respondent Mr A Gerrard Solicitors for the Respondent Australian Government Solicitor
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