Singh and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 750
•19 July 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 750
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2004/508
GENERAL ADMINISTRATIVE DIVISION ) Re ADRIAN SINGH Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Deputy President J Block Date19 July 2004
PlaceSydney
Decision The decision under review is set aside.
[Sgd] Deputy President J Block
CATCHWORDS
IMMIGRATION – section 501 of the Migration Act 1958 considered – reference to factors in Direction No. 21 – discretionary powers considered – expectations of the Australian community – whether discretion should be exercised in favour of the Applicant – decision under review set aside.
Migration Act 1958 sections 500(6G) and 501
Direction No. 21 – Direction – Visa refusal and Cancellation under Section 501
Leha and Minister for Immigration and Multicultural Affairs ]2000] AATA 1054
REASONS FOR DECISION
19 July 2004 Deputy President J Block PART A – PRELIMINARY AND GENERAL
1. The decision under review in this matter is the decision dated 19 January 2004 by a delegate of the Respondent pursuant to which the Applicant’s Australian residence visa was cancelled.
2. The Applicant was represented by Mr Christopher Levingston of Christopher Levingston & Associates, solicitors, while the Respondent was represented by Mr Ishan Muthalib of Blake Dawson Waldron, solicitors.
3. The Tribunal had before it the G-documents lodged pursuant to section 500(6G) of the Migration Act 1958 (“the Act”) together with exhibits as follows:
Exhibit A1 is the statutory declaration by the Applicant dated 17 June 2004
Exhibit A2 is a report by Dr Christopher J Lennings, a psychologist, dated 12 June 2004
Exhibit A3 is a statutory declaration by Kenny Singh dated 17 June 2004
Kenny Singh is the Applicant’s father and he is referred to in these reasons as “the Applicant’s father” or as “the father” or as “Kenny”
Exhibit A4 is a statutory declaration by the Applicant’s father dated 29 June 2004
Exhibit A5 is a statutory declaration by Shadhe Varma dated 22 June 2004. Shadha Varma is referred to in these reasons as “Varma” or “the stepmother” or “the Applicant’s stepmother”.
4. The Respondent’s Statement of Facts and Contentions dated 30 June 2004 is particularly helpful because firstly, it contains a chronology of relative events and secondly, because it includes the whole of the Applicant’s extensive criminal record. I include only clause 1 of that Statement of Facts and Contentions under the head of ‘Facts’ as follows:-
“FACTS
Chronology:
Date
Event
Reference
4/09/1980
Applicant born in Fiji
G3
17/1/1988
Applicant entered Australia on a temporary visitor visa
G3
23/3/1994
Applicant granted Australian permanent residence
G3
8/06/1994
Applicant departs Australia to visit Fiji
G3
2/07/1994
Applicant re-enters Australia
G3
4/03/1995
Applicant departs Australia to visit Fiji
G3
18/10/1995
Applicant re-enters Australia
G3
Early 2000
Applicant enters into de facto relationship with Ms Simone Knight
G9
2/08/2002
Department notifies applicant of intention to consider cancelling his visa
G17
19/01/2004
Department cancels applicant's visa
G1, G2
28/04/2004
Applicant lodged application for review of the Department's decision with the Tribunal.
Applicant's Criminal Record
Date
Offences
Sentence
25 November 1997
"larceny"
"drive/use motor vehicle without consent of owner"
"possessing prohibited article"Fixed term of imprisonment 11/11/1997 – 17/1/1998 (x 3)
"be carried in conveyance taken without consent of owner"
"possess prohibited drug"control order (x 2)
11/11/1997 – 17/1/199815 April 1998
"to be carried in conveyance taken without consent of owner"
3 month control order
"possess prohibited weapon without permit"
1 month control order
18 May 1998
"take and drive conveyance without consent of owner"(2 counts)
6 month control order commencing 15/03/1998
"take and drive conveyance without consent of owner"
6 month control order 15/06/1998 – 15/12/1998 +
"carry cutting weapon upon apprehension"
6 month additional term
"drive in a manner dangerous to the public"
3 month control order (x 3) commencing 15/03/1998
"disqualified driver"
8 July 1998
"possess prohibited drug"
7 day control order commencing 15/06/1998
"possess implements to enter/drive conveyance"
"take and drive conveyance without consent of owner"
6 month control order commencing 15/06/1998 (x 3)
"fail to appear court attendance notice"
8 July 1998
"larceny value < $2,000
2 month control order commencing 15/06/1998
"take and drive conveyance without consent of owner"
6 month and 8 day control order
"first instance warrant 3283429 escape lawful custody"
15/06/1998-22/12/1998 +
"possess implements to enter/drive conveyance"
12 month additional term (x2)
"maliciously destroy or damage property"
6 month control order commencing 15/06/1998
"maliciously destroy or damage property"
4 month control order commencing 15/06/1998
2 September 1998
"break and enter building commit felony (steal) value > $2,000 and < $5,000"
5 month control order 22/07/1998 – 23/12/1998
19 March 1999
"larceny value < $2,000" (6 counts)
"maliciously destroy or damage property < $2,000
3 months imprisonment 6/03/1999 – 5/06/1999
20 May 1999
"goods in personal custody reasonably suspected being stolen"
"drive in manner dangerous to the public"3 months imprisonment 6/03/1999 – 5/06/1999 (x 2)
7 June 1999
"be carried in conveyance taken without consent of owner"
3 months imprisonment commencing 28/05/1999
"break and enter building commit felony (steal) value > $2,000 and < $5,000
6 months imprisonment commencing 28/05/1999
4 August 1999
"break and enter building commit felony (steal) > $5,000 and < $15,000
9 months imprisonment commencing 28/05/1999
+
Additional 3 months18 December 2000
"break and enter with intent (steal)"
"be carried in conveyance taken without consent of owner"8 months imprisonment
21 May 2001
"have custody of an offensive implement in a public place"
2 months imprisonment 18/12/2000 – 17/02/2001
"possess/use a prohibited weapon without permit"
"drive while disqualified"
4 months imprisonment 18/12/2000 - 17/04/2001
"drive while disqualified"
8 October 2001
"possess implements to enter/drive conveyance"
"larceny value < $2,000" (3 counts)
"take and drive conveyance without consent of owner" (2 counts)
drive conveyance taken without consent of owner"
"steal motor car/ motor vehicle"
"drive while disqualified" (2 counts)
"drive conveyance taken without consent of owner"
"receive/dispose stolen property – minimum indictable offence < $5,000"
"larceny value < $2,000"6 months imprisonment commencing 24/08/2001
25 July 2002
"drive while disqualified"
"take or be carried in conveyance"
"drive furiously/recklessly"
"common assault"
"larceny"
"take and drive conveyance" (3 counts)
"break and enter building commit serious indictable offence" (6 counts)18 months imprisonment commencing 24/07/2002
20 November 2002
"larceny" (12 counts)
"take and drive conveyance"12 months imprisonment 24/07/2002 – 23/07/2003”
5. If only as a matter of balance I include the Applicant’s Statement of Facts and Contentions dated 23 June 2004 as follows:
“FACTS
The facts as disclosed in the Issues for Consideration of Possible Cancellation of a Visa a visa under section 501(2) of the Migration Act 1958 at part B under the paragraph heading “Consideration of Visa Cancellation” and the subparagraph headed Reasonable Suspicion at paragraph 12 are admitted generally. The description at paragraph 13 (page 5) that the Applicant has a substantial criminal record is conceded.
In the current case the only issue for consideration is the exercise of the discretion permitted under section 501 by reference to those factors set out in Direction number 21.
CONTENTIONS
The Applicant’s conduct although falling within the scope of section 501(6)(a) arose in circumstances following his having run away from home following a series of sexual assaults which on balance would disclose significant circumstances of mitigation.
The Applicant’s conduct although very serious did not involve offences of violence and the offending behaviour arose in circumstances where the Applicant was unable to avail himself of familial aid and support.
The Applicant following his most recent incarceration has been reconciled with his family and has been acknowledged as a victim of sexual assault by his uncle and persons associated with his deceased mother’s family. He has been rehabilitated and is unlikely to re-offend.
The Applicant was at large in the period between the time of his release from custody on 23 July 2003 and the decision to cancel his visa on 19 January 2004 and the communication of that decision to him personally on 27 April 2004. During that time the Applicant was of good behaviour. That good behaviour foreshadows future good behaviour and is evidence of recent good character.
Having regard to the primary considerations as articulated in Direction number 21 the Applicant is not a person wherein the expectations of the Australian community are served by removing him from Australia.
………………………………”
6. The hearings in this matter were scheduled for two hearing days, being 1st and 2nd July 2004. Additional time was needed, and as a matter of some urgency and bearing in mind that this decision must, because the Applicant is detained at Villawood, be issued by no later than 20 July 2004. Further evidence was taken and submissions heard on 6 July 2004.
7. Oral evidence was given by each of the Applicant, Kenny, Varma and Dr Lennings. As I have indicated, this decision must be handed down within a short period. I do not therefore have time to wait for a Transcript and must therefore rely on my notes of the evidence tendered at the hearing. My notes are reasonably detailed in the case of all three witnesses other than Dr Lennings. In the case of Dr Lennings, his answers were often very lengthy and moreover speedy; I intend therefore to rely in part on his report (Exhibit A2), and in part on my notes as to his evidence.
8. The Applicant’s evidence was often vague as to matters of time and also in certain other respects. It was inconsistent with the evidence of Kenny, who while assured and confident, gave evidence which was not (in turn) in all respects consistent with that of Varma. Although the evidence considered as a whole revealed numerous inconsistencies and some of substance, it does allow me to find, albeit in certain instances with some hesitation, a number of matters of fact, and to be referred to later in these reasons.
9. The Applicant was cross-examined at some length on the numerous convictions which constitute his criminal record. Mr Levingston described that record as disgraceful, and that description was not at all inapt. In respect of many of his convictions, the Applicant could not remember the circumstances; in other cases his version of the events which gave rise to the convictions in question was either vague or unconvincing or both. I do not think necessary for me to go into detail as to those convictions. Regarded separately or individually there is no conviction which is of its very nature very serious within clause 2.6(c) of Direction 21 (referred to later in these reasons). Many of the convictions relate to motor vehicles and including unlawful driving; many relate to the taking unlawfully of motor vehicles with a view to theft from them of articles such as radios. There were some convictions which fall outside these categories; there were a number of larceny convictions involving theft; there were offences involving unlawful implements; in broad terms though there were no offences which involved violence. I am satisfied that his conviction on a charge of assault on 25 July 2002 cannot be described as very serious because it was more in the nature of a technical assault, and certainly there was no physical harm caused to any person. I take much the same view as to his convictions in respect of resisting arrest.
10. However, the Applicant’s criminal record regarded as a whole and taking his offences in aggregate must have the effect that his conduct was serious. This is so in particular because they occurred during a relatively short time span (25 November 1997 to 20 November 2002) because of their number, and because of the frequency with which they were committed. In this context it must be noted that they were committed after repeated warnings as to the consequences of repeat behaviour. I refer in particular to statements made by Magistrate Gilmour when the Applicant appeared for sentence at the Parramatta Local Court on 18 October 2001. Clauses 28 and 29 of the relevant decision (G1) read as follows:-
“[28] On 18 October 2001 Mr Singh appeared before Magistrate Gilmour at Parramatta Local Court. When sentencing Mr Singh, Magistrate Gilmour took into account Mr Singh’s past efforts to enrol in a rehabilitation program but also considered Mr Singh’s poor record with Probation and Parole Service, stating at page 3 of the transcript:
‘So I think that when he comes out I should let him be his own person because he has got to report to Probation and Parole to do what they tell him, history has shown that doesn’t work very well which means I think inevitably he’d end up going back in to serve balance of parole. He got eight months before. I should really give him longer than eight months now because we don’t generally go backwards in sentencing but I think in rolling all that up together, time spent in, can’t backdate it till 9 July, being fixed term, I think in this instance it is warranted going backwards and hence the six months fixed term.”
[29] Magistrate Gilmour also considered that a lighter sentence was more appropriate but warned Mr Singh of the need to remain crime free after his release from prison, stating at pages 3-4 of the transcript:
‘As I said to Mr Provera, normally I don’t go backwards in sentencing. Your last sentence was eight months. I should be giving you more than eight months but I think in this instance that I am warranted in reducing the time that you have to spend in custody and I am going to do that and make a fixed term of six months and that is on all your offences to run concurrently together.’
and
‘But let me warn you to this extent, when you get out there will be no supervision by Probation and Parole because I’m not going to set a parole period so you won’t have to report to Probation and Parole, you’ll be your own person in effect. The only thing that will bring you back to court and back to custody is if you commit any further offences. Nobody can do anything about that except you. If you do commit any further offences once you’re released you’re going to go back into custody for a long time, okay. That is something you’re going to have to plan in the next six months and make sure it doesn’t happen.’”
Notwithstanding the Magistrate’s remarks on 18 October 2001 further convictions occurred in July 2002 and November 2002.
11. Mr Levingston applied for a Confidentiality Order in respect of the precise nature of the sexual abuse alleged to have been suffered by the Applicant; a decision in respect of that application was reserved for later consideration. This aspect was never again referred to and in the result no decision was sought or given. However, these reasons can quite easily be given without specific sexual references. Accordingly I do not intend in these reasons to refer to the sex complaints in specific terms and have edited certain quoted matter to this end accordingly. Suffice it to say that I have come to the conclusion, on the balance of probabilities, that there was abuse and it was serious.
PART B – THE EVIDENCE OF THE APPLICANT
12. Mr Levingston, after calling the Applicant, asked him to attest the correctness of his statement (Exhibit A1) and that having been done, sat down. Exhibit A1 (edited to some extent on the basis set out in clause 11 above and so that square brackets refer to words or phrases edited or omitted) reads as follows:-
“STATUTORY DECLARATION
I, Adrian Raynishvarn Singh, of Stage 3, Immigration Detention Centre at Villawood, in the state of New South Wales, Detainee, do solemnly and sincerely declare that:
1. I was born in Fiji on 4 September 1980.
2. I first arrived in Australia on 17 January 1988 as the holder of a visitors visa which allowed me to stay until 15 July 1988. I became a permanent resident of Australia on 23 March 1994.
3. I was born in Fiji and grew up with my step mum and dad as my birth mother was killed in a fatal car accident.
4. I liked school even though I got picked on for not speaking English I still enjoyed the company of my teachers. As more time went by dad and I moved into our place, it was good there, I saw my aunty and cousins almost each day.
5. Some time later my dad was working night shift and I was under the care of my uncle and he came into my room and made me have []l sex with him, at that time I did not know what was going on but I remember a couple of days later he took me for a drive and I got beat up. []. This went on for a couple of weeks and I couldn’t tell anyone because I know I would have been beaten up by my uncle. [ ]
6. A little while later my dad asked me if I wanted to go to Melbourne to live with my other uncle, aunty and 2 cousins. I said yes whole heartedly. When I went to Melbourne things were the best, I had the best aunty, uncle and cousins. Unfortunately, like every other good thing, it had to come to an end. It was time for me to go back to Canberra to live with my uncle, I cried and yelled but no one listened, before I knew it I was in Canberra.
7. The first couple of days were ok because nothing happened and it wasn’t until a few days later that I woke up in pain and found my uncle having []l sex with me. I got molested for months on end until one day my dad picked me up and brought me to Sydney to live with my step mum, little sister and himself.
8. Living at home with my own family was the best, things couldn’t have been better. I loved my life, when I finished primary school and started high school I started to miss school to go play video games at the arcade with my friends.
9. Eventually dad got called up to school to explain for all of my absences. That night dad arranged for me to go to Canberra and study with my two cousins at a boys only private school. I tried to convince my parents to let me stay in Sydney but no matter what I had to go. I remember crying myself to sleep, I so didn’t want to go and live with my uncle. When it got to the next weekend my uncle came and picked me up with his family. I cried half way to Canberra.
10. When I got to Canberra things were ok, I was scared of being alone with my uncle but he wasn’t ever touching me. A couple of weeks went by and no one was home and my uncle called me into the garden shed and told me to take my pants off, he then molested me. []l. This continued for weeks, there were many times it happened, I used to cry and plea to him to stop but he always said to shut up and enjoy it.
11. It was one day that he dropped me to school after making me have anal sex with him while my cousins were getting ready that I couldn’t take it no more and told my best friend at school. He told my year advisor who informed a child protection agency straight away. Before I knew it I was being told that I would never be touched again. The agency took my belongings and put me in the care of dad’s brother. I was so happy because I knew I’d never see my uncle again and that chances were I would be home to my dad in Sydney.
12. For the whole day I was assured by everyone that I would never see my uncle again, but still scared, that night I got to my uncles house, (my dads brother), that was my favourite place in the whole world, my favourite cousin Shaneel lived there and we were the best of mates. Finally, I was convinced that things were going to be ok.
13. I was eating my diner when I got a telephone call from my two cousins who told me that if I came back to school that they would break every bone in my body and not long after my dad’s sister came and sat down and told me that she didn’t believe her husband done what I was saying and she said your going to pay for this.
14. It was only then that I realised I shouldn’t have said anything because everybody thought I was lying. My dad arrived next and even he thought I was lying. I ended up coming to Sydney with dad and everyone always seemed to talk about what had happened, things changed forever.
15. A couple of days later I answered the door and there he was, the man I was supposed to never see again, my uncle and his wife had come from Canberra. They started to yell at me, they didn’t stay for long but it was enough to make me feel like I didn’t want to be there no more.
16. Everyday I woke up feeling I no longer belonged, everyone thought I was lying, I never spoke to my cousins and aunty again all I wanted to do was to run away.
17. My dad felt I needed a break and took me to Fiji for a week or two. When I was in Fiji I met my real mothers side of family, they seemed to be really nice people, I told them I had problems in Australia but not anything more. When dad and I returned to Australia my mum’s side of the family used to call me and tell me things like, my dad didn’t care about me and that I should come to Fiji and live with them. They told me a lot of things about my real mum and that got me interested because I didn’t really anything about her until then. I agreed to come to Fiji but I said to my family, my dad won’t let me because I got school, later that week they told me that there would be a person coming to pick me up in two days.
18. When the day came I was surprised as my aunty came all the way from Fiji to see me. She came to our house and told me to pack lots of things from my dad’s room like jewellery and money and be ready the following week.
19. A couple of days after she left for Fiji I received a call from an uncle I never new I had and he told me he was going to get me to Fiji as long as I remembered to pack dad’s jewellery and any money in the cabinet. At that point I wished I had never shown my aunty dad’s things but it was to late because my so called uncle was at my door like two hours later. He told me to take him to where dad’s jewellery was kept and he took out a few things but all I really saw was a camera.
20. He took me to his house and resided there with his wife and two little kids. For the first few days things were ok, they had to sell my dad’s jewellery so that I could eat but all I wanted was to get to Fiji. A few weeks had past and one evening whilst we were in the backyard I saw my mum and dad walk through the gate. Dad was furious because he was searching for me day in and day out. We sat down and talked and I told dad what I wanted, he tried to stop me from going but I wouldn’t listen. The following morning dad bought me a ticket to Fiji.
21. When I got to Fiji things seemed to be alright until a few weeks went by. It first started when my aunty kicked me out of her house because I had no money, I was upset because she took all my things even most of my clothes. I ended up sleeping in a cane field for a night and it was the next day when my uncle said I could live with him if I would work cutting sugar cane.
22. I experienced great difficulties with my work as I had no experience and the work was very hard and I became exhausted. My boss told my uncle that I’m not cutting enough cane. When that happened that night I got strapped with an extension cord, punched and stabbed with a broken chair leg. I started bleeding but I hoped I would bleed more because there was only one place I knew that had a telephone to call my dad and that was the hospital. I knew if I got there they would let me use the phone, but my uncle didn’t want me in the house no more. I sat under a mango tree bleeding and crying, he called me inside early in the morning and told me it was my last chance.
23. By this stage it had been a couple of months and I didn’t speak to my dad, I missed him so much but couldn’t talk to him as there were no phones in the village. As time went by my uncle would get drunk and beat me up yelling out I don’t have no one who cares about me. I begged all my aunties and uncles please let me call dad but they never let me.
24. My uncle used to make me [have sex with] him promising he would let me call dad but he never did. New scars, bruises and cuts became a regular thing, sleeping in the cane field was a weekly thing, people calling me a rude names in town was getting boring, I knew at that point in my life that I had no control over anything, no one loved me, all I wished was for my mother to be alive.
25. It was six months later when dad came to Fiji and saw me, I didn’t have to tell dad anything he saw my condition. Dad got me back home to Australia. It was on that day I promised never to mention my mum’s family again. I got sexually abused, scars which are still visible nine years later, emotionally scared for life and in return I found out my mum was a head of her class nurse student. I saw the picture of her with a trophy in a newspaper article when she graduated. I saw three pictures of her for the very first time. I know my mum was nothing like her family because my dad later told me so.
26. Shortly after being back home, I came face to face with my uncle who molested me and I decided my only option I had in order to never see these people again was to run away. I loved my dad but I couldn’t put him through this no more.
27. I moved in with a friend who introduced me to a life of crime. Eventually I went to boys home and I very soon realised the only place I was safe was behind bars. When I was in boys home it didn’t bother me because in my eyes prison was a escape from reality, I had no worries and my biggest fear of seeing my uncle was no longer there. I used to think about my family a lot but I always tried to block it out because thinking about my family meant thinking about other people. I hated my life but the less I thought about it the better it was.
28. When I was seventeen my dad made phone contact with me and we agreed to meet for lunch. I spent lunch with my family and agreed to move in back home. I lived at home for a short period of time and was at a family function that I saw my uncle and he attempted to approach me and it was at that point I decided that I didn’t want to be there. I drove off in my car and my family never saw me again.
29. A short time later I met Simone, I never spoke about my family to her but she understood. Being with her was the best, finally I had someone in my life, she always stuck by me through thick and thin, we couldn’t go a day without seeing each other so we moved in together.
30. Simone and I lived together until I got imprisoned. In my first in being in custody Simone found my dad’s phone number and contacted him. For the twelve months I was in custody, my dad, mum, brother, sister, aunty, uncles, cousins and family friends came to visit me. In that time I was able to discuss with my family why I kept running away and doing what I was doing.
31. Dad kept stressing the fact that all he wanted to do was to unite me, my brother and sister together, he told me he would buy a new house with a granny flat for my privacy if I agreed to move in and he told me how he and my uncle hadn’t spoken for some years and promised me I would never see him again.
32. I agreed and upon realising I was the first person to move into our new home, dad got a brand new kitchen and bathroom installed for me in my granny flat. I have never been happier in all my life, I was living and talking to my family for the first time in many years.
33. As our house was getting renovated dad put me in charge and got me a job working with him, this was my first job ever, I was a little scared and worried but work turned out to be the best thing in my life, work became my livelihood.
34. Dad use to take me to work each day and in the whole time I was working I never took off any days. Before I knew it, my parole order was finished, this was the first parole order I had finished and the first time in seven years that I had made it past three months without offending.
35. In my leisure time my brother, sister and I used to chat on the internet, my brother and I made it a regular event to go and watch the street theatre shows at Darling Harbour. I slowly got to know my family members again and often went to functions with them. At this point in my life things were the best they could have been, I was slowly paying off fines I was issued in my offending days, I finely had a bank account and tax file number I was saving up for a deposit on a flat and marriage was on the cards.
36. I never had any worries living at home, I enjoyed regular outings with my brother and sister even to the shopping centre. I loved the fact that I wasn’t dependent on crime to survive. I imagined life to be difficult living with my parents, but it wasn’t at all like that, dad buying the new house proved to be well and truly a fresh start for me.
37. I never thought my dealings with DIMIA would result to this, when Immigration came to my house and brought me to the Immigration prison from that moment I have blocked myself out. I pretended this was not happening, having to talk and right about my past has simply made me feel the pain even more. I don’t know why people make me always talk about it from school counsellors, to parole officers and psychologists.
38. I no for me that first of July is judgment day, either I will get a life with my family, friends and everything I know or I’ll go back to Fiji and only god knows my fate there as I have been told as my family has a great disregard for me because I didn’t send them money like they told me to.
39. If I were to be released I would not change anything, I would work at the same place, reside with my family and continue to better myself. For the first time in my life I was doing good and people were proud of me, I honestly can’t come to turns with what is happening with me.
40. In the years I spent in jail I saw people get stabbed, beaten really badly, people doing self harm and many other things. Jail was no longer an escape from reality, it became a survival of the fittest and I knew it was only a matter of time until I became the victim that is one of my biggest deterrents.”
The remainder of this part B deals in the main with the cross-examination of the Applicant.
13. The Applicant said that he first became aware of the possibility that his visa might be cancelled in August 2002 and that he did not have any prior warning that he faced deportation to Fiji. There does not appear to be any dispute about the fact that that statement was correct. The Applicant said that he was concerned by this possibility because the whole of his family is in Australia and “everything I know is here”.
14. The Applicant has drawn social security on various occasions when not in custody. Social Security paid to him includes either Austudy or Abstudy paid to him after he left home and when he attended Doonside Technology High School in 1997 and 1998. Mr Muthalib contended that the Applicant could not have received Abstudy because he is neither an Aboriginal nor a Torres Straits Islander. As to whether he received Austudy or Abstudy (and he insisted that he received Abstudy) does not appear to me to be material. The fact is that the Applicant did receive social security and notwithstanding that he did so, nevertheless committed offences in order to obtain money. He said that he wasted his social security money in various ways; he also spoke of a gambling addiction and in particular in respect of poker machines. While he may have spent some considerable time playing poker machines the evidence before me does not add up to an addiction or anything like it. The Applicant was never able to explain at least on financial grounds, why it was necessary for him to obtain money illegally.
15. The Applicant left home after a number of fights with his father and after sexual abuse by his uncle Ronald, in Canberra. The Applicant had been sent to live with his uncle Ronald and aunt Sarab (his father’s sister) in Canberra on the basis that they would be able to look after and supervise him and ensure that he attended school and studied. His aunt and uncle had two older sons who were attending St Edmonds, a private school in Canberra. His father was at the time working very long hours in Sydney.
16. The Applicant was quite remarkably vague (as I have said) as to time. He said that he was first sexually abused by his uncle Ronald when he was about eight (which would have been in 1988) and that the abuse continued for some time thereafter and until 1994. He said that Ronald bound him with rope before abusing him and that the resulting bruises came to the attention of a school friend and through him, the school authorities and through them, the Department of Community Affairs, and which resulted in his returning to Sydney and to his father and Varma.
17. The Applicant explained that although he informed his father about the abuse his father did not believe him. Moreover his uncle and aunt continued to visit his father and family in Sydney and he found contact with his uncle unbearable, leading to his running away from home.
18. There was no written evidence before me as to any report to the school authorities or the Department of Community Services; as to whether the matter was fully investigated or investigated at all is not clear. Certainly no charges appear to have been brought against Ronald.
19. The Applicant’s father has a number of siblings some in Canberra (and including his sister Sarab) and also a brother who, although he resided in Canberra for a time, is now resident in the United States.
20. The Applicant was also vague as to the time at which he moved for one year to stay with his uncle in Melbourne and where he attended a Melbourne school. That stay while happy, came to an end when his uncle’s marriage broke up.
21. Notwithstanding considerable effort it was never possible to obtain a coherent chronology of where the Applicant lived and when. It would seem that after the report and the Department of Community Services, the Applicant spent the night at the home of the uncle who subsequently moved to the United States. The Applicant said that that uncle knew about the sexual abuse complaints because he was informed about them by the Department of Community Services.
22. The Applicant’s father came for him, so the Applicant said, some two days later, and he then returned to Sydney to live with his father and step-mother. His uncle Ronald and aunt Sarab thereafter visited their home in Sydney almost every weekend and he found it impossible to bear being in their presence. His aunt in particular had not believed his allegations and called him names and hit him when the matter was reported to her. Moreover his father at least at first believed Ronald’s protestations of innocence. (It was at this time during the hearings that the Applicant became visibly upset and sought a break. He said that he needed a break in order to seek his father’s assistance.)
23. The Applicant was referred to clause 6 of his statement (Exhibit A1). He explained that when they first came to Australia he and his father lived with Ronald and Sarab in Canberra. His father then obtained rented accommodation in Canberra and he went to live with him there. The Applicant said that the abuse first started at his father’s rented accommodation. The Applicant was equally vague about the duration of the sexual abuse. It is conceivable and indeed quite likely that it endured for a shorter period than the Applicant claimed.
24. The Applicant did not give evidence as to his father’s difficulties with his late mother’s family. He did speak about his father’s remarriage when he was five and his father’s subsequent divorce from his second wife who is still in Fiji. The Applicant’s evidence would appear to be that he came to Australia with his father in 1988 and where they lived for a period with Ronald and Sarab in Canberra. He and his father moved to rental accommodation in 1989, and during which time he repeated year 3 at school) but by 1989/1990 he was back with Ronald and Sarab because his father had moved to Sydney. A period of a year between 1991 and 1992 was spent in Melbourne with his Melbourne uncle and where he was happy until he had to return to Sydney when his Melbourne uncle’s marriage broke up. It was at this time that he was sent back to Canberra to Ronald and Sarab. His school grades improved in Canberra and as a result he was allowed to return to his father in Sydney. However, his grades thereafter again declined and his school attendance fell off, and his father sent him back to Canberra and St Edmonds School. After the report to the school authorities and the Department of Community Services, he returned to Sydney and attended school first in Belmore and later in Kingsgrove.
25. The Applicant then said that his aunt Sarab believed his sexual abuse allegations at first but thereafter refused to believe him and hit him. He said that his father fetched him two days later and accused him of lying. In essence the Applicant complained that his entire family believed his uncle and aunt but not him.
26. As to how the sexual abuse came to be reported was equally vague. Although the Applicant’s evidence was inconsistent, it would seem that he told a friend only of his being bound with rope and giving rise to marks or bruises but not why or how or in what circumstances they had occurred. (Different evidence had been given earlier in the hearing).
27. In 1994 the Applicant visited Fiji on holiday. Although he testified as to a different time period his movement record (G30) indicates that he left Sydney on 8 June 1994 and returned on 2 July 1994.
28. The Applicant was referred to clause 18 of exhibit A1 which refers to his holiday trip to Fiji. After his return to Australia his father was angry “with me about my mum and everything – he belted me a few times”.
29. It was in these circumstances the Applicant returned to Fiji. Although he did not remember when exactly this occurred his movement record (G30) indicates that it took place on 4 March 1995. Before leaving Australia, he stole jewellery from his father and according to him, at the insistence of his late mother’s family. The jewellery was pawned and his father was subsequently obliged to redeem the pawned items.
30. The return to Fiji was disastrous. It was “pretty good” at first but then he discovered that his mother’s family was “not decent”. His maternal uncle instead of sending to school obtained a job, cutting sugar cane for him; that job ended because he was not quick enough. He said that his maternal uncle stabbed him with a pointed stick and tried to have sex with him, then and on other occasions. (It was at this stage during the hearing that the Applicant again became very upset indeed and ran out of the hearing room to consult his father yet again. This resulted in a delay of about 30 minutes).
31. The Applicant said that he was molested sexually in Fiji some fifteen times over a four months period. He went back to cutting cane and he was beaten on a number of occasions. Eventually (some six months after his arrival in Fiji) his father, so he said, came to Fiji and he begged his father to take him back to Australia. He obtained a flight back to Australia soon afterwards, and moved in with his parents who were then living in Doonside.
32. After two or three months the Applicant decided that he had the “worst family in hell”. He ran away from home; his father dragged him back but then he ran away again and his father did not then try to force him to return.
33. All of this occurred according to the Applicant in 1996. It was pointed out to him that according to his movements records (G30) he returned to Australia on 18 October 1995 and he was asked whether he and his father caught the same flight. He said that they could not both get seats on the same flight
34. The Applicant then became involved with a group which stole cars. During the ensuing five years, he was never out of custody for more than seven and a half months and always re-offended within two or three weeks of release. Based on his own evidence, he was a singularly incompetent criminal. The police in Mt Druitt knew him and stopped him and were nearly always able to procure a conviction on one or more grounds. In stealing cars, he did not use gloves, and so that his finger prints gave him away on numerous occasions.
35. The Applicant said that when in jail he was a segregated prisoner having informed the authorities of the sexual molestation and on the basis that he had a better prospect of rehabilitation alone. While in jail he took a number of courses and after being released in July 2003 took further courses organised by Centrelink. Courses in jail included horticulture and also certain courses connected with health, alcohol, drugs and the like.
36. After his release in July 2003 the Applicant moved into a granny flat in his father’s home in Beverly Hills. His reconciliation with his father had been engineered while he was in jail by his girlfriend Simone. The granny flat at the home in Beverly Hills was built in particular for him and so as to ensure that he could live in the family home while yet enjoying some privacy. In October 2003 he obtained employment (procured by his father) with VKK Zippers (by whom his father was and is employed) and after a period of training in quality control has been steadily employed by that company ever since and up until the time when he was detained in Villawood. His father was apparently sufficiently senior and well regarded by VKK Zippers to be able notwithstanding the Applicant’s criminal record, to procure the job for him.
37. The Applicant’s family at this time consisted of his stepsister (and being his stepmother’s daughter by a previous marriage) and also his half-brother, (born of the second marriage in Fiji) who by this time had come to Australia from Fiji. The latter has done well, having obtained his HSC and is studying commerce or business at a tertiary institution in Sydney.
38. Nothing in this case is as mysterious as the role played by Simone. The Applicant met her five or six years ago; they lived together and she visited him in jail regularly. Towards the end of his final incarceration she went to see his father and stepmother and introduced herself to them as his wife. In consequence of that contact, relations were resumed and he was visited by his father, stepmother and other members of his family but not of course Ronald and Sarab. However, Simone did not move into the granny flat with him and the Applicant’s evidence was that that relationship is over. The Applicant said that she found his detention at Villawood on top of what had occurred previously (referring presumably to his numerous jail sentences) impossible to bear. That explanation cannot be accepted; his detention at Villawood occurred after he had been released from Cooma, and so that if Simone found his detention at Villawood impossible to accept, this had not occurred at the time of his release When (inferentially) the relationship was still alive.
39. Evidence was given at considerable length of his various offences. As I have noted, it is not necessary in my view to deal with that evidence in detail. It is sufficient to note again, as I have said, that his numerous offences regarded individually cannot be regarded as very serious but that taken as a whole must be so regarded.
PART C – THE EVIDENCE OF DR LENNINGS
40. The evidence of Dr Lennings was interposed on the second day. Dr Lennings qualifications are such that his views and opinions must be taken seriously. I refer to clause 2 of exhibit A2 which reads as follows:-
“Report Author. I am a clinical psychologist with a Masters degree in Clinical Psychology and a Ph. D in research on personality. I have been a Senior Clinical Psychologist within the Juvenile Justice branch of the then Department of Family Services (NSW) FROM 1987 TO 1989 AND RESIDENT PSYCHOLOGIST AT Yasmar Detention Centre. Prior to this I was a Child Psychologist and Team Leader of the Marrickville Community Health Centre. I have worked and continue to work as a consultant to the NSW Department of Juvenile Justice and also to the Queensland Office of juvenile Justice. In recent years I have been employed as an academic, including two years in the Faculty of Law (Queensland University of Technology) teaching forensic psychology. I am a member of the College of Forensic Psychologists and the College of Clinical Psychologists. I am a treatment member of the Australian and New Zealand Association of Psychiatry, Psychology and the Law. I have a twenty-five year history of work within the forensic and substance abuse fields. A full CV can be found at Lennings spent about an hour and a half with the Applicant and about an hour with his father. However said that his use of the MCMI format enabled him to form his views in the light of what he learned during that period. His statements as to the background facts are of course hearsay and must be treated with caution. However his statements as to the background at least have the merit of coherency (which cannot be said of the Applicant’s recital), and so that I include his comments under the head of ‘History’ contained in clauses 3 to 10 of exhibit A2 as follows:-
“3. History. Adrian is one of three children born to his father. He has a younger brother and a younger sister all from different mothers. He tells me that his mother died within a couple of months of his birth and that his father remarried, he has a younger brother from that marriage. That marriage appears to have broken down whilst in Fiji and Mr Singh Snr came to Australia when Adrian was aged around about 7 years old leaving the younger brother with the mother in Fiji. There was no contact with that part of the family for a considerable period of time after that. In Australia Mr Singh Snr remarried and there was a daughter from that relationship.
4. Adrian was two weeks old when his mother was killed in a car accident. The father was then working as a police officer in Fiji and as a consequence the mother’s family took Adrian to live with them. Mr Singh Snr sought to have his son returned to him when Adrian was about one year old but at that point his ex-wife’s family refused to let him come home. Eventually Mr Singh Snr kidnapped his own son not allowing him to say goodbye to the people who had effectively been his primary caregivers for his early life. From then on Mr Singh Snr tells me that when the family did have access they told Adrian things such as the father had actually killed his mother and those kinds of things. It can be seen that in the first seven years of Adrian’s life he was exposed to considerable attachment problems and incredibly bad parenting. Mr Singh Snr tells me that he used a very brutal form of punishment on his son, he says he would hit his son until he bled and that he would “belt the crap” out of him as he felt that this was the only way he could at least resolve his own feelings and get some satisfaction over the fact that his son (for very understandable reasons) was confused and difficult to control.
5. Adrian has no real memories of his early childhood. He says he can vaguely remember a few incidences in Fiji but the bulk of his memories of his childhood relate to living in Australia. He believes that initially his response to living in Australia was quite good; he lived with his father and he used to go to Canberra where there was lots of relatives and he enjoyed being part of an extended family network. However he was unable to stay living with his father for a variety of reasons, some of which included the father’s difficulty in establishing a business, some because the father was concerned to promote his son’s identity and involvement with the extended family and particularly with his cousins and for these reasons he was left with an uncle. According to Mr Singh Snr, his son is placing something of a gloss on this period of his life. Mr Singh told me he was very neglectful of his son (largely because he was working two jobs). He says that he had been a policeman in Fiji and was (and remains) a very stern disciplinarian with high expectations. Hence, when he did discipline his son, his behaviour was frankly abusive.
Adrian tells me he has hardly and memories of his first stepmother and said that when he first arrived in Australia he initially was cool towards his second stepmother. It appears in part when he had been in Fiji he had been told that his original mother had “gone into the skies” as a means of being able to explain to a young boy that his mother had died. When Adrian flew to Australia he made the young child’s leap of imagination that he was flying into the sky, so when he arrived in Sydney he actually expected to see his mother and this may well have accounted for the disfavour that his second stepmother had for some time. Further he says that he came to accept and later to have a strong relationship with his second stepmother. According to Mrs Singh her recall was that she got on well and had no major difficulties with Adrian from the time she first met him.
6. There appears to have been a long and extended history of sexual abuse on the part of his uncle. This history of sexual abuse include both oral and anal sex, sometimes accompanied with violence. The sexual abuse appears to have occurred from about the ages of eight or nine up until the ages of twelve to thirteen. These sexual abuse incidents were not initially disclosed by Adrian. He did eventually confide to a school friend, which brought them to the attention of the school counsellor and then intervention by the various government departments. His family were not supportive of the allegations. As a consequence Adrian felt ostracized and disturbed by the family and particularly felt unprotected by them. On one occasion, despite the fact that current procedures are such that if an allegation of sexual abuse is made the perpetrator is not supposed to confront the child victim; the family appears to have facilitated the uncle, the designated perpetrator, to visit the home and verbally confront Adrian when he was only thirteen years old.
7. Mr Singh Snr says that his son showed very poor behaviour outside of the home the entire time he lived in Australia but was very good inside the home. Mrs Singh says for instance that when her daughter was born Adrian was very kind and loving to both her and to the daughter and she says she never had any problems living with him at home. However contrary to what Adrian told me, Adrian was often in trouble at school and was suspended and expelled on many occasions from school. He completed his school at Plumpton Tutorial School which is a school for behaviour disturbed children. Mr Singh Snr accepts that from the age of fifteen essentially until the age of twenty there was a total breakdown in the relationship between he and his son and that it was the intervention of Simone that restored that relationship.
8. Adrian reports being at school in Australia and initially having some difficulties in the early stages of school because of his lack of English but by about Years 5 or 6 at primary school he reports good adjustment. He reports making the gradation to high school well and he says that in Year 7 there were no major problems. This view is disputed by the father. However Year 8 coincided with the time in which he revealed the sexual abuse and also coincided with an increase in violence in relationship to his uncle. During this period of time the father tells me there was an increase in the physical violence perpetrated by him on to his son is response to what he saw as his son’s naughty behaviour. Following that revelation and the increasing unhappiness he experienced living in the family environment, he made contact with some extended family members in Fiji. These family members appear to have used Adrian in order to obtain information about the financial dealings of his father.
9. While the account that Adrian gives is somewhat confused it would appear that his family used him in order to induce him to return to Fiji but to induce him to return along with certain valuable possessions, the property of his father. It appears that Adrian had unwittingly become a pawn in a long standing dispute between Mr Singh and his wife’s extended family. Adrian did return to Fiji but after only a couple of weeks he began to be poorly treated there. He was exposed to both excessive physical violence and also sexual abuse by relatives in Fiji. Adrian told me that after being there for six months his father came and reclaimed him and brought him back to Australia. Mr Singh (Snr) told me that he contacted his son, but did not go to Fiji to get him back. Adrian appears to have “memories” that relate to wish-fulfilment. In fact, the father told me he was very cold and unwelcoming to his son, but did allow him to return to his place.
10. Although Adrian went back to school in Australia and completed his School Certificate, it would appear that much of the damage that had already occurred in his life had come to a fine point. Following leaving school Adrian began what appears to have been an initiation into delinquent behaviour. Prior to the age of sixteen he denies excessive delinquency but from about the age of sixteen on it became clear that he developed associates with people who are both alcohol abusing, marijuana using and also involved in stealing cars. Adrian reports a juvenile and then a young adult criminal history that extends from 1997 to the year 2000. Although he has a large number of offences within that time I note that most of these offences relate to specific activities related to stealing of motor vehicles or being carried in conveyance.”
42. Dr Lennings correctly emphasised the fact that the risk of recidivism is of crucial importance in this case. He identified eight factors as being important; they are set out in clause 31 of exhibit A2 as follows:-
“31. These factors are:
·Employment. Adrian has a history of poor employment, in fact has a history of no employment, but recently his history has changed. It appears to be quite a signal event that he’s been able to maintain employment admittedly through the exercise of his father for the nine months prior to offending and retains interest in maintaining employment. Ordinarily this would be regarded as a positive sign for him. His prospects of maintaining employment are good as his father is the managing director of the company he works for.
·Social Support. Adrian’s prior history suggests low levels of social support but again following the last incarceration he appears to have had a rapid improvement in his social support with both very strong re-involvement with not only his father, but also his brother and sister. I note that his brother had in a sense been “lost” to the family, and had recently come over to Australia to finish his education. As a consequence there has been a genuine improvement in his family network. In addition Adrian retains some support of extended family members.
·Absence of violence, Adrian has no record of violent crime. He appears to be conflict averse, and does not appear to be violent in his relationships with others. If anything he appears to be more of a victim than a perpetrator. The absence of violence in his background is usually regarded as a good predictor for response to rehabilitation and a good predictor of a low risk of recidivism.
·Accommodation. Mr Singh has the prospect of stable accommodation with his family. The single biggest issue is the potential for further conflict with the father. The father appears to be aware of the harsh and uncompromising standards he set for his son in the past, and capable of restraining his behaviour. He appears to have gained a new found pride in his son, and for the immediate future at least, the relationship between father and son bodes well for stability of accommodation.
·Community Participation. Community participation refers to a number of actors not only employment and housing and accommodation, but also relates to his engagement with the community. Adrian has limited engagement with the community largely because he’s only had nine months in a sense to begin to re-establish himself, nonetheless he reports playing sports with his family in the park and he reports his involvement and wish to remain involved in employment and would appear to have reasonable levels of community participation.
·Substance Abuse. Adrian reports no ongoing history of substance abuse and even his past history of substance abuse appears to have been opportunistic and occasional. Whilst gambling behaviours do represent a significant risk factor for him nonetheless he appears to have made an excellent response to treatment provided by Gamblers Anonymous and his gambling does not appear currently to be a significant problem for him.
·Criminal History. Adrian does have an extensive criminal history although in context it is a criminal history associated around a four year period of offending. In that period of time he has reported offences mainly of driving and car related offences. Adrian appears to have been able to desist from those kinds of offences since coming out of jail in 2002 and appears to have made a recently good response to the intervention of probation and parole following coming out of jail at the end of that time. This is despite the fact that his previous history indicates a poor response to probation and parole, and an inability when younger to learn from his experience. It does appear that this remains the only factor that is of some concern but nonetheless the weight of this factor is reduced by the fact that it seems that the psychological motivators for his involvement in the criminal offending spree that he was involved in are now absent or unlikely to re-occur. Hence his involvement in further criminal offending appears to be relatively minimal.
·Mental Health. Adrian does not appear to be a person who has a major mental illness despite the fact that he clearly experienced traumatic reactions to the sexual assault and to the inability of his family to accept and support him during that period of time. He is currently mildly depressed which is understandable given the situation that he is in but he does not appear to have a major mental illness and would appear to be a person who would have relatively speaking good adjustment and rehabilitative prospects were he allowed to stay in Australia.”
43. Dr Lennings’ evidence was that while the risk of recidivism cannot be discounted it can be formulated in percentage terms at less than 20 per cent.
44. Dr Lennings referred at some lengths to the difficult relationship between the Applicant and his father. Kenny was a policeman in Fiji; he was authoritarian and a disciplinarian and could be characterized as a martinet. Kenny in his evidence agreed that he treated the Applicant strictly and at times brutally having been treated in like fashion by his own father. From his earliest days the Applicant was the subject of bitter disputes between his father and his late mother’s family. As Kenny later admitted, he kidnapped the Applicant from his mother’s family when he was about two and the Applicant thereafter moved to and from his late mother’s family on about six occasions. After coming to Australia his relationship with his father was difficult indeed. His father worked long hours, and beat him with his belt when he did anything which his father considered wrong. In Australia his history was of constant moves and he seldom had a stable family life.
45. The Applicant resented his father’s refusal to believe his allegations of sexual abuse by his uncle Ronald. He ran away from home and started his criminal career, this arose directly from the fact that he had become a member of a peer group which was delinquent and so that the fact that he sought its approval by participating is perhaps to some extent understandable. The fact that his father was a policeman is in this context relevant. But even though there was a gap of years without contact, the Applicant’s dependence on his father has not ceased. He still looks to his father for support (as was graphically demonstrated by his behaviour during the hearing).
46. Dr Lennings referred to research coming out of Canada in particular (and Canada is, so he said a leader in this field) in the context of clause 31 of Exhibit A2. He said that the risk of recidivism tends to drop after the offender attains the age of 29. He considered that the Applicant is a low-risk because he is now in a stable family situation and in stable employment. For some nine months now he has lived perfectly normally and responsibly. While that is not a long time in the scheme of things, it is a long time in the life of the Applicant, who previously was nearly always in trouble and indeed repetitively so from 1997 onwards.
47. Dr Lennings felt that the absence of violence from the Applicant’s crimes was an important indicator and moreover that the Applicant has shown genuine remorse for his past behaviour and has recognised that his behaviour was stupid. (“stupid” is perhaps a mild description) Dr Lennings referred to the Applicant’s attachment disorder; this relates to his desire for an attachment with his father which until recently he could not have. The Applicant said that his father came to fetch him in Fiji where he was so unhappy. However his father said that he did not.
48. Dr Lennings was in my view a most impressive witness. His considerable experience in this field must be treated with respect. He was frank enough to say that there is a distressingly high level of recidivism among young people with whom he has worked. However in this instance the Applicant now knows that re-offending will inevitably result in his return to Fiji where he has no future and no support system; Dr Lennings felt that this is a factor which constitutes a very significant sanction.
49. Dr Lennings described the Applicant’s crimes as crimes of convenience or opportunity and noted that while understandably upsetting to the victims did not involve violence. He again noted that if one seeks retribution against a policeman (which his father was) his criminal behaviour is explicable on the basis that he was seeking to upset his father.
50. Dr Lennings said that the Applicant is unlikely to re-offend for two main reasons; they are firstly, his fear of deportation to Fiji and secondly, the fact that he is now accepted by his family. Dr Lennings conceded that the Applicant could be lying but felt that some at least of his allegations are fact, could be and had been tested by reference to his father’s evidence
51. In cross-examination Dr Lennings said that he genuinely believed that recidivism is unlikely in this case because the Applicant’s behaviour was so psychologically motivated and having regard to his (the Applicant’s) relationship with his family.
52. Dr Lennings conceded that nine months of good behaviour is not long and that he would have preferred to have been dealing with a longer period, but that nevertheless nine months was sufficient in this particular case because of the Applicant’s prior record of repeated offences within a short time of release. As to whether the Applicant’s relationship with his family or his fear of deportation is the major factor, does not in Dr Lennings opinion matter, so long as the Applicant recognises a need to change and which is in fact what has occurred.
53. It is my view that psychological evidence of this nature as to reform should in general terms be treated with some reserve. True reform is not in my view as easy as some psychologists, engaged for a particular case, would like Tribunals such as this to believe. But these reservations do not apply to Dr Lennings who presented as intelligent, articulate, experienced and, above all, fair. Mr Muthalib did not seriously question his evidence as indeed he could not. Dr Lennings did not at any time fail to accept that there is a risk of recidivism which could occur in particular if the family relationship should again break down although he did not think that this is a likely event in this particular case..
54. When asked how important the sexual abuse was in the scheme of things he answered that it was significant where three factors occurred (as they did in this case) they are:-
“(a) The perpetrator is a family member;
(b) Violence is used;
(c) The victim after complaining of the abuse is not believed.”
These three factors are associated with negative behaviour of the type which occurred in this case. Dr Lennings was “more than hopeful” because restitution is in train and “the trajectory is quite different”.
55. The evidence of Dr Lennings should in my view be accepted and this being so, I should accept (despite the fact that the Applicant’s criminal record is so extensive) that the risk of recidivism is low.
PART D – THE APPLICANT’S CROSS-EXAMINATION RESUMED AND CONCLUDED
56. The Applicant was cross-examined as to why he never brought up his sexual abuse complaints at any of the hearings at which he was sentenced. He said that he was sometimes represented by legal aid but that he was guilty, and in any event “nobody is interested in all that stuff”.
57. The Applicant was again cross-examined about whether he received Austudy or Abstudy; he was adamant that it was Abstudy. As I have indicated nothing very much turns on the distinction.
58. The Applicant said that he would seek counselling if allowed to stay in Australia. He said also that his father had said that he needed counselling.
PART E – THE EVIDENCE OF KENNY
59. In respect of this witness also, Mr Levingston presented his evidence-in-chief by tendering his two statutory declarations. Accordingly exhibits A3 and A4 are set out in full as follows:-
“Exhibit A3
Adrian was born in Suva on the 4th of Sept., 1980. His mother sadly passed away as a result of a car accident on the 17th of Oct., 1980. At that time Adrian was still being breast fed. I had no choice but to give him to his maternal grandmother. The reason being that could not find anyone else to look after him. I regularly visited Adrian and spent considerable amount of time with him.
About 14 months later, I re-married. It was then, I decided to bring Adrian back to live with me. I approached my mother-in-law and requested if I could take him with me. This was angrily refused and I was told in the strongest terms that I never suggested anything like this again otherwise something would happen to me.
Nevertheless, some weeks later, I re-visited Adrian and spent the night with the in-laws. In the middle of the night, I picked up Adrian from his cot and put him in the car and drove off. The in-laws realised what had happened and were in persuit. Anyway, I stood my ground and things got sorted out and once again I had Adrian with me.
Adrian had not started talking then and I started noticing bruises on him occasionally. I started having arguments with my wife and as a result Adrian was put into the care of his mother’s side of the family once again. As Adrian grew up, he was being brain washed by them with all sorts of lies. Things like, I killed her mother and that I did not like him. I am bad etc etc.
At this stage, I had my second son, Jaspreet in 1984. Adrian was let to believe that I only liked Jaspreet and not him.
This made me bring Adrian back with me. Adrian did about 6 shifts in total between me and his mother’s side of the family.
Little did I realise that eh was getting very confused. He was calling his aunt mum, his grand mother mum and then had to call my wife, mum. Often he would ask me why but I just didn’t bother to explain anything to him.
At the age of just 7 years, I brought him to Australia after divorcing my wife and handing over the custody of Jaspreet to her mum.
Once in Australia, I settled in Queanbeyan renting a unit. I started working for Coca Cola and at night worked for the Canberra Times. I would leave home for work at Coca Cola at 6am and return around 5pm, make some dinner, eat with Adrian and then go to bed around 6.30pm. Around 10pm, I would get up and leave for Canberra Times for the second job leaving Adrian on his own asleep. This job finished at 4.30am and I would return home for a quick nap before getting up again in an hour’s time to go to Coca Cola at 6am.
This went on for more than 2 years like this. Coca Cola job was Monday to Friday and sometimes Saturday, whilst Canberra Times job was 7 days a week.
During this time, I spent very little time with Adrian. He was left alone in the unit for long hours of the night and day. I had no idea how he was doing at school and whether he was actually going to school or not.
There were occasions during this time that Adrian would misbehave and I remember belting him a lot.
I, then sent Adrian to live with my brother Jagdish in Melbourne for a year.
During this time, I moved to Sydney. After a year, Adrian came back to live with me in Sydney. Once with me, I noticed that he was not good in school.
As a result, I sent him to live with my sister and brother-in-law in Queanbeyan. About 3 months later, I was advised by my brother that Adrian had gone to his home and was refusing to return to my sister’s home alleging that he was sexually abused by my brother-in-law.
As a result a I drove to Canberra overnight and brought Adrian back to Sydney. Since then he lived with me and Shadhna.
It was during this time, Adrian started misbehaving dramatically. He started damaging his school teacher’s cars when he got detention. He started missing school and I would get letters from his school. As a result, I started belting Adrian ever time he got into trouble. The beating and belting got severe and severe and I even used cables and even kicked him at times. Sometimes, he would bleed.
I had to change 3 schools during this time. The reason being that he was expelled from one and I was told that if I didn’t take him out of the second school then they would expel him and he would have no hope of getting another school.
Then he ran away from home one day. I finally tracked him down and managed to bring him back.
As a result, I sent Adrian to Fiji to keep him out of trouble.
Adrian came back on his own within 6 months.
The second time he ran away, I was unable to track him down. This is when he started his criminal activities.
Meanwhile, Jaspreet had migrated to Australia.
It wasn’t until mid last year that I found out that he was in jail. I went and visited him at Cooma. There onwards, I visited him quite often.
Our relationship grew closer and he started writing letters were he would express himself more.
After his release, I brought him to my place and he started living with us. Jaspreet and Ashley were overjoyed and I could see that Adrian was also happy. The three got along so well and I was beginning to think that my worries were all over.
A month after his release, I employed him at my work as an internal materials and finished goods handling person. He learnt that job very quickly and was very efficient. Everyone at work liked him as well.
Adrian was still employed when he was arrested and taken to Villawood.
From the time he came out of prison to the time he was with us, he was a total angel and I remember him saying that he was a changed person. I admired the fact that being what he was, yet he did not smoke or drink alcohol. Rarely, he would have a glass of some sweet liquer.
I see Adrian as a changed person and have absolute confidence and fait in saying that I do not have any reason to believe that he would re-offend in future.
I see Adrian as a changed person and have absolute confidence and fait in saying that I do not have any reason to believe that he would re-offend in future.”
“ Exhibit A4
I, Kenny Singh, of 97 Tallawalla Street, Beverly Hills, in the state of New South Wales, Warehouse Despatch Manager, do solemnly and sincerely declare that:
I am the father of Adrian Singh and I refer to my previous statement dated 17 June 2004.
If my son Adrian had to return to Fiji then I would have to assume responsibility for his maintenance and support in Fiji.
As a former police officer in Fiji I am aware that there is no social security in Fiji and that current levels of unemployment are very high. I am of the opinion that it is very unlikely that my son Adrian would be able to find and maintain employment in Fiji.
As I had previously indicated in my statement of 17 June 2004 my son had been employed at my work as an internal materials and finished goods handling person. He was very motivated and highly regarded. As soon as he became employed I observed that my son’s self esteem and confidence improved out of sight. He was transformed by the experience of working and being regarded as somebody who was worthwhile. There is no comparing the Adrian who as a kid ran away from home and got into a lot of trouble to the Adrian who was let out of jail, got a job and became a fully functioning member of society.”
60. I do not think it necessary to set out Kenny’s cross-examination in any great detail, he presented as articulate and intelligent and above all as absolutely determined to succeed. After coming to Australia, and for a period of about two years he had two jobs, at Coca Cola during the day and with Canberra Times sorting papers at night. This punishing schedule left him with virtually no time for the Applicant. He would come home from work at the Canberra Times at 4 am, have breakfast, sleep for a short while and then go to his job at Coca Cola. Meals for the Applicant would be left for him to eat alone.
61. Kenny’s evidence was that at first he did not believe the Applicant’s allegations of sexual abuse but that at some point in time later, he followed the Applicant and overheard him abusing his uncle Ronald in a telephone call from a telephone box. He then, and then only believed his son and whereafter contact with Sarab and Ronald ceased.
62. Kenny admitted that he had been harsh but said that the position is now such that he and the Applicant can disagree without his becoming violent.
63. Kenny sought to present his family life following his third marriage to Varma as stable and good. He said nothing whatever about any difficulties with Varma. However she, in her evidence said that they parted for two years in the mid 1990s because of his relationship with another woman and that she was persuaded to take him back upon his promise of reform. When asked whether he had reformed, she said that he had done so “up to a point”.
64. Kenny undertook that the Applicant would if allowed to stay in Australia receive counselling; indeed he said most tellingly, that the whole family needed counselling.
PART F – THE EVIDENCE OF VARMA
65. Varma’s evidence is of limited assistance (although in my view truthful) because her participation in the family affairs was limited by the fact that she came into it late, was separated from Kenny for about two years, and in any event was obliged to defer to her husband. While it would not be true to say that she is in fear of him, she undoubtedly has a very healthy respect for him. She said that Kenny has a very quick temper.
66. In one important respect her evidence was significantly different. She said that at the time of the sexual abuse – rope marks incident, her husband went to Canberra to fetch the Applicant and returned early the following morning and at which time he reported to her that his son had been sexually abused by Ronald. In other words, Kenny on this evidence believed his son’s allegations considerably earlier than he had indicated. Why he then allowed Ronald and Sarab to visit his home thereafter in circumstances which must have been extremely uncomfortable for the Applicant is entirely unclear.
67. Varma presented as a loving stepmother who within her secondary role does her best for the family as a whole. However it cannot be said that her evidence was of material assistance, more particularly because contact with the Applicant was lost by the family for a lengthy period of time after she came into the family.
PART G – SUMMARY OF THE EVIDENCE
68. It is not possible to reconcile the inconsistencies in the evidence. There are many and they are by no means insignificant. What of Simone? Kenny said that he did not like her, but did not say why; he said also that he did not ask any questions, after his son’s release as to why when he came to live in the granny flat Simone did not accompany him. I do not accept that evidence. A man like Kenny, with his Fijian/Indian background and with its emphasis on family, would be vitally interested in the girl who either was or might become his daughter-in-law. It may be that his disapproval had previously communicated itself to his son who then sought to obey him. As I have indicated the Applicant’s evidence as to why Simone is no longer a presence in his life cannot be accepted.
69. Although the Applicant has behaved in a manner which can be described as stupid in the extreme, I do not think he is as stupid as the evidence would suggest. I do think that he is weak and easily influenced and in particular that he is strongly dependent on his father, and perhaps not unnaturally so in all the circumstances. He is not as mature as his age would suggest.
70. Amidst all of this sea of contradictions I accept on the balance of probabilities that there was sexual abuse. That there is no contact by Kenny and his family with Ronald and Sarab is significant. I accept also that the Applicant was for many years brought up in a manner which was in the highest degree undesirable. It is only fair to say that Kenny’s neglect of the Applicant may have been driven to some extent by his desire to succeed in his new country.
PART H – DIRECTION No 21 DIRECTION – VISA REFUSAL AND CANCELLATION UNDER SECTION 501 – No 21
71. It is then necessary to consider the provisions of Direction 21 and in particular the discretionary powers contained in part 2. Of course the Applicant’s criminal record is such that the character test is not relevant.
72. References to numbered clauses contained in this part H should be construed as references to numbered clauses in Direction 21.
73. Clause 2.3 provides that the primary considerations are:-
“2.3 In 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.”
74. Clause 2.3 must be read in conjunction with clause 2.5 which provides:-
“2.5 The 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).”
75. I have already indicated that I accept the evidence of Dr Lennings that the risk of recidivism is low. I note that I do so with some hesitation because his record is so bad and because his good conduct period is relatively short. It is for this reason also that I do not think, subject to the same reservations that he is likely to present a threat to the Australian community. I accept that these risks can never (as Dr Lennings fairly conceded) be discounted.
76. Again with some hesitation I do not think that deterrence is a relevant factor; this is a case which turns on its own facts. While it is true to say that in general terms a person who behaves as the Applicant did would generally be deported (and in my view this result would be correct) this is a case where there are strong extenuating circumstances.
77. As to clause 2.12, the expectations of the Australian community would usually (at least on a prima facie basis) be that someone who behaves as the Applicant did, should leave Australia and preferably as soon as possible. But those expectations might be tempered by a consideration of all of the relevant facts. The Applicant was treated very harshly and neglectfully. To send him back to Fiji where he has no family support system (his mother’s family having treated him shamefully) and where he has little or no ability to earn a living, would in the circumstances be harsh. It may be that there would be a view that as the author of his own misfortune, this result should follow. But regarded in context that might be a minority view. It is I think fair to say that reasonable persons in possession of all of the facts might be disposed to a more lenient view and that their view might constitute the majority. In Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054Deputy McMahon said that the Act must be administered in a humane fashion.
78. As to hardship under clause 2.17 there would be hardship for the father if the Applicant is sent back to Fiji. He would be deprived of the Applicant’s company but then he managed without him for many years. There would be financial hardship for him in that he would have to maintain the Applicant in Fiji (and he said that he would do so). There might be hardship also to other members of the family but there was little evidence of this. This is not an important factor in the balance.
79. I do not think that the Applicant’s crimes fall within section 2.6(c). The drugs in possession conviction arose according to the Applicant’s evidence, from his being in the company of members his peer group when drugs were found. The sentence imposed indicates that the court did not regard the matter as serious.
80. As I have indicated there is much in the evidence which is unsatisfactory. I did not think the Applicant’s evidence was in all respects credible and I have reservations also as to some of the evidence of Kenny. But the evidence of Dr Lennings was altogether credible and should be accepted. In all the circumstances this is a case where in my view the discretion should be exercised in favour of the Applicant and accordingly the decision under review is set aside.
I certify that the 80 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President J Block
Signed: Neil Glaser
AssociateDate/s of Hearing 1st, 2nd and 6th July 2004
Date of Decision 19 July 2004Solicitor for the Applicant Mr Christopher Levingston of
Christopher Levingston & Associates
Solicitor for the Respondent Mr Ishan Muthalib of Blake Waldron Dawson
Key Legal Topics
Areas of Law
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Immigration & Refugee Law
Legal Concepts
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Judicial Review
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Discretionary Powers
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Constitutional Validity
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