SQNR and Minister for Immigration and Border Protection

[2014] AATA 16

[2014] AATA 16

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/5462
Re	SQNR
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Mr John Handley, Senior Member
Date	15 January 2014
Place	Melbourne

The Tribunal affirms the reviewable decision dated 18 October 2013.

(sgd) John Handley

Senior Member

IMMIGRATION AND CITIZENSHIP  ‑ Applicant convicted of multiple sex offences – substantial criminal record – victim an infant and related – offending occurred over 18 months – offending contemplated by paragraph 6.3(2) of the Principles in Direction 55 – applicant has not had treatment as recommended to him – risk of reoffending assessed as moderate – risk of future harm unacceptable – decision affirmed.

LEGISLATION

Migration Act 1958 s 501

CASES

Williams v Minister for Immigration and Citizenship and Anor [2013] FCA 702

REASONS FOR DECISION

Mr John Handley, Senior Member

15 January 2014

1. The applicant, has applied for review of a decision made by a delegate of the Minister of Immigration and Border Protection (the Minister) on 18 October 2013 to cancel his visa pursuant to s 501(2) of the Migration Act 1958 (the Act).

2. The applicant is a citizen of Fiji where he was born on 8 May 1971.  He is presently 42 years of age.  He first arrived in Australia on 4 January 1989 on a visitor’s visa which expired on 4 April 1989.  On 25 May 1989, solicitors he then engaged applied to the Department of Immigration and Ethnic Affairs (as it then was), by letter, seeking a permanent resident visa and a work permit.  That application was made on the basis of strong compassionate or humanitarian circumstances (G-documents, p. 60-62) and was treated as a protection application.  It was contended that by reason of the applicant being of mixed race, he would be relegated to second class citizen status following a coup in Fiji in 1987.

3. The application for permanent residence was refused.  A bridging visa was issued pending the determination of a review application to the Refugee Review Tribunal.

4. In 1989 the applicant commenced a relationship with his cousin, AN.  In the following year they commenced living together.  Two children were born from that relationship, C, a daughter in 1990 and a son, D, in 1992.  In March 1995 the applicant withdrew his application for permanent residency (and an appeal against refusal) and elected to voluntarily leave Australia.  He returned to Fiji with AN and the children on 6 May 1995.

5. The applicant and AN married in Fiji in 1996 and they had 3 more children, W and H, both boys in 1996 and 1997 respectively and a daughter, L, in 2000.  Their son, H, was later adopted by another cousin and has subsequently lived in the United States.

6. The applicant and AN separated in 2004 and were divorced, in Fiji, in 2006.  The applicant subsequently had custody of the children C, D, W and L.

7. Later in 2006, the applicant remarried an Australian woman, HB, in Fiji.  The applicant, HB and the 4 children of his first marriage travelled to Australia in 2007 where they lived in suburban Melbourne with HB’s mother in her home.  The applicant was granted a Class BC Subclass 100 (Spouse) visa.  HB gave birth to a son, J, in 2010. 

8. Statements completed by HB and found within the G documents record that C and D left the home in 2009 and 2011 respectively.  C is now 23 years old and has 2 children of her own.  D is now aged 21 and was asked to leave the home (which he did).  HB has assumed parental responsibility for W and L and she continues to live with them and J, although L has recently moved and is interstate living with another family member. 

9. In late 2011 or early 2012, the applicant was charged with criminal offences for which he later pleaded guilty and was sentenced to a period of imprisonment of more than 12 months.  Accordingly, the applicant has a substantial criminal record (s 501(7) of the Act), he does not pass the character test pursuant to s 501(6) and the provisions enabling cancellation within s 501(2) of the Act are enlivened.

   DIRECTION 55

10. Section 499 of the Act allows the Minister to issue written directions to a person or a body who is empowered to perform a function or exercise powers under the Act. The power to cancel a visa is found within the discretionary provisions of s 501(2) of the Act. The Minister has issued Direction No. 55 – Visa refusal and cancellation under section 501 (Direction 55) which I am obliged to apply. 

11. The Preamble to Direction 55 contains 3 sections entitled Objectives, General Guidance and Principles.  The section entitled Principles, commencing at paragraph 6.3 is a significant addition to the Direction, when compared to the previous direction.  The Principles may be summarised as follows:

    (a)Australia has a sovereign right to determine whether non-citizens are of character concern (refer s 5C of the Act and Annex B of Direction 55) and whether they are allowed to remain in Australia, which should be regarded as a privilege.  In return, there is in an expectation that they will abide by Australian laws, will respect important institutions and will not cause or threaten harm to individuals or the Australian community at large.

    (b)A non-citizen who has committed a serious crime, including crimes of a violent or sexual nature and particularly against vulnerable persons such as minors, the elderly or the disabled should expect to forfeit the privilege of remaining in Australia.

    (c)The harm as a consequence of criminal conduct or offending may be so serious, in some circumstances, that the risk of similar future conduct is unacceptable.  Strong countervailing considerations may not be sufficient to prevent cancellation of a visa.

    (d)There is a low tolerance of any criminal or other serious conduct (refer s 501(6)(c) and (d) of the Act and Annex B) by visa holders who have been present in Australia for a short period of time.  A higher level of tolerance may be afforded to visa holders who have lived in Australia for most of their life or from a very young age.

    (e)Non-citizens who have held a visa for a limited period and who have engaged in criminal or other serious conduct should not have an expectation that they will be allowed to remain permanently in Australia.

    (f)The length of time that a non-citizen has made a positive contribution to the Australian community and the consequences of cancellation of a visa upon children and other immediate family members in Australia are relevant considerations.

12. Section 2 of Direction 55, commencing at paragraph 7, provides guidance in exercising the discretion and compels the Tribunal to take account of the Principles  in order to determine:

    (a)whether a non-citizen will forfeit the privilege of continuing to hold a visa; and

    (b)whether the risk of future harm by non-citizens is unacceptable.  This will require consideration of the likelihood of any future harm, the extent of potential harm should it occur and the extent to which any risk of future harm, if at all, should be tolerated.

13. In exercising the discretion under s 501(2) of the Act, paragraph 8 of Direction 55 requires the Tribunal to take into account the primary and other considerations set out in paragraphs 9 and 10 respectively.  Primary considerations should generally be given greater weight than the other considerations. 

    CRIMINAL CONDUCT

14. The applicant appeared before the County Court in Melbourne on 13 August 2012 where he pleaded guilty to one count of indecent act with a child under the age of 16 and sexual penetration of a child under the age of 16.  Each of the two charges was a representative count, which His Honour said it simply means that the charge is not to be treated in isolation (G-documents, p. 89).  He was sentenced to a total of 2 ½ years imprisonment.  He was granted parole on 12 November 2013.  He does not have any prior convictions. The victim was the applicant’s nephew who was 12 years of age when the offending commenced and 13 when it ceased.

15. Some of the circumstances of the applicant’s offending are found within the sentencing remarks of His Honour Judge Smallwood commencing at page 88 of the G-documents.  It was learnt during the hearing of this review that the applicant had not fully disclosed the extent of his offending to the Police in his record of interview or to Dr Newton, a psychologist who prepared a report at the request of his solicitors.  The description of the offending and the frequency of it, with respect to His Honour, should be approached with caution.  The extent and circumstances of the offending will be described later in these reasons. 

16. The applicant’s nephew, AW, used to visit his grandmother, where the applicant and his wife and the children also resided.  AW would play computer games, watch videos and use a Wii device, with his cousins.  The applicant and other adults were present on those occasions which predominately occurred on Friday nights.  On those occasions, AW stayed overnight and slept on a couch in the lounge room.

17. On a number of occasions, whilst AW was asleep or was pretending to be asleep, the applicant penetrated his anus with his finger.  If AW stirred or moved, the applicant would walk away but return and continue penetrating.  These incidents would last between 5 and 10 minutes.

18. On a number of occasions also during the above period and whilst AW was asleep on the couch, the applicant placed his hand inside his underpants and masturbated him.

19. His Honour referred to the record of interview between the applicant and the police in his sentencing remarks and noted that the applicant had said, during interview, that he felt excited and attracted to the complainant in a sexual way (G-documents, p. 91).

20. In the sentencing remarks, His Honour also referred to text messages sent by the applicant after the record of interview which appeared to indicate that he had been led on by AW (although he accepted that the applicant now perceive(d) the error of that concept (p. 89 and 91).  The source of that information is not known).His Honour noted from the contents of the report of Dr Newton that whilst the applicant had consumed alcohol to excess on each occasion that he abused AW, there is no suggestion of you having a lack of memory or any other form of involuntariness associated with that (p. 91-92).

21. His Honour referred to the effect of the applicant’s offending on his immediate and extended family and especially upon the victim, AW.  His Honour recorded (p. 93):

    The offending is serious and both objectivity and subjectively. I simply refer to the authorities that say that a society must protect its children.  The offending calls for the application of general and specific deterrence, as well as appropriate punishment and of course in such a situation, denunciation.  A custodial sentence of reasonable proportions is inevitable and your counsel did not resile from the fact that a significant portion of it must be actively served.

22. At page 96, His Honour recorded:

    The offending has got to be regarded as exploitative.  You knew it was wrong.  As I said to your counsel, what would you do if somebody had done this to one of your boys?  I think the answer is probably self-evident. 

23. His Honour noted the assessment of Dr Newton that the applicant posed a moderate risk of recidivism to sexual offending and found that assessment is probably appropriate (p. 96).  (The report of Dr Newton is found in the supplementary G-documents at pages 6-13). 

24. In concluding his sentencing remarks, His Honour noted at the end of the day, it is serious offending with dreadful consequences.  He was satisfied that the applicant should be sentenced to a period of imprisonment.  In fixing a total sentence of 2 years and 6 months, with a minimum term to be served of 15 months before becoming eligible for parole, he noted that the applicant pleaded guilty, that he did not, at the age of 41, have prior convictions, that he would be vulnerable whilst in gaol and the benefit the applicant might receive from rehabilitation.  He noted that the applicant would be placed onto the sex offenders register and were it not for his plea, he would have been sentenced to a period of 4 years with a minimum of 2 years and 6 months to be served before eligibility for parole (p. 97-98).

    THE AAT HEARING

25. The applicant was self-represented in this review.  Mr Brown, solicitor represented the Minister.

26. In evidence the applicant said that his conduct involving AW was selfish and sinful.  On the day after his arrest, the applicant said that he decided to change his life and would accept whatever punishment was imposed.   He decided to plead guilty and had willingly engaged in counselling and rehabilitation.  He said it was an honour and a blessing to live in Australia and that he would honour the conditions of his parole and the obligations imposed on him, having been placed onto the sex offenders register.  He humbly requested a second chance.

27. In cross-examination, the applicant said that he was educated to the year 12 equivalent in Fiji in 1988.  He said he was a shy person and was an academically average student.  Some of his secondary schooling had been undertaken in a boarding school away from home.  He said his father frequently consumed alcohol to excess and had been abusive of his mother.  His father had been employed as a salesman and his mother had been employed as a secretary.

28. At the completion of his secondary education at the age of 17, the applicant travelled to Australia where he entered on a visitors’ visa.  He lived in Sydney with some aunts and uncles.  The applicant said he returned to Fiji in 1995 to support his parents.  He separated from his wife in 2004, he was divorced in 2006 and later that year married an Australian woman.  He returned to Australia in 2007 where he has subsequently resided.

29. The applicant was referred to a letter dated 19 March 2013 sent by his father to the former Minister for Immigration and Citizenship (G-documents, p. 136-145).  The letter was sent in response to a notice of intention to cancel the visa held by the applicant and gives, in large part, support to the applicant against visa cancellation.  However, at page 139, the applicant’s father recorded:

    Apart from [the applicant] being renowned for all the saintly qualities dominant in him as already mentioned above; he however is never ever to be provoked nor pestered to saturation point as that is when the lion in him wakes up and could really go berserk.  What I wish to highlight here your honor (sic) is that this rather strange side to [the applicant’s] character had been lying dormant in him from throughout childhood and adulthood.  It only reared its ugly head for the first time ever after he had been married for fifteen (15) years and to his first wife after he had been provoked would be an example.  At this incident he was pushed to the extreme limit and the whole house was in a mess after that.

30. Although the applicant’s father refers to his temper having been dormant whilst he had been a child, the applicant said that he had been aggressive when playing rugby and there were occasions when he would throw stones at his brother.

31. The applicant said the event referred to above by his father was an occasion where he had been provoked by AN after he returned home from work early one morning.  He said he had consumed 24 bottles (stubbies) of beer between 1am and 6am after finishing work the previous evening.  He said she had also been drinking alcohol at home.  He said she was teasing him and he became jealous.  He picked up a chair and smashed it on the floor.  He also abused her.  When he was reminded that his father had recorded that following that episode the whole house was in a mess, the applicant agreed that he had also smashed holes in the walls of the house. 

32. It would appear from the applicant’s evidence and from statements within the G‑documents that HB’s mother was a central figure in the family and members of the extended family frequently visited her.  One in particular was the applicant’s nephew, AW, who was the son of HB’s sister.

33. The applicant said there was an occasion in early 2010 when he was playing table tennis with AW who was then 10 or 11 years of age.  He said AW threw his bat at him because he hates losing.  The applicant then pushed the table tennis table towards AW because he needed to respect his elders.  He also picked up a plastic chair and smashed it on the floor.  He agreed that he lost his temper.  The applicant said he did not think that AW was frightened by these events but he acknowledged that he was upset, he ran away and was crying.

34. The events which gave rise to the conviction and sentence involved a number of events between the applicant and AW.  The duration of the period within which the events occurred, the frequency of them and the circumstances surrounding them are not apparent from the sentencing remarks.  The information available to His Honour would suggest that the applicant violated AW on 8 or 9 occasions (refer paragraphs 10 and 12 of the sentencing remarks).

35. In his evidence, the applicant said that he had not disclosed the extent of his offending to the police (in the record of interview – which was not within the G-documents) or to Dr Newton, the psychologist engaged by his solicitors in the criminal proceedings or to an associate of Dr Newton who conducted 3 counselling sessions.

36. The applicant said that AW would attend the home of his mother-in-law on average once monthly on a Friday night to play with his cousins.  The relevant period of offending commenced in April or May 2010 and concluded in November 2011.  On many of these occasions other persons, including adults, were present and alcohol was readily available and consumed.

37. On the first occasion of the offending, the applicant said that he had stayed up all night with AW, who was then 12 years of age and together they had consumed beer.  They had also played video games.  Some adults and children had either gone to bed or had left.   The applicant’s son W was asleep on a couch in the lounge room.  At about 6 am, the applicant told AW that he should go to bed.  During the night and/or the early hours of the morning, the applicant said that there were occasions where AW had his hands inside his pants and he had been rubbing himself.

38. AW intended to sleep on another couch in the same lounge room where W was sleeping.  The applicant approached AW, who was lying on the couch and placed his hands inside his underpants.  He said he was drunk, he masturbated AW and felt him for a while.  He also digitally penetrated his anus.

39. AW returned to the home about 2 weeks later and in the presence of other children he took beer away from the applicant and consumed it.  After other persons had gone to bed and AW went to sleep on the couch, the applicant said I did it again – I thought it was what he wanted.

40. The applicant agreed that he offended on an average of once per month between April/May 2010 and November 2011.  On each occasion, AW consumed between 6 and 8 stubbies of beer over a 5 or 6 hour period.  The applicant had previously purchased a slab (24 stubbies) and he had consumed the remainder of it.  AW either helped himself to the beer from a refrigerator, with the knowledge of and without any restraint from the applicant or he was given the beer, when he asked for it, by the applicant. 

41. The applicant said that on these occasions he thought that he was in a sexual relationship with AW.  He agreed that he was sexually excited about his relationship, he interpreted the behaviour of AW as an invitation to interfere with him and he (again said) I thought this is what he wanted.  The applicant said he was carried away and he didn’t think it was an extraordinary thing to do.  On some of these occasions the applicant’s son, W, was asleep on another couch in the same room.  The applicant said that he should have been an adult and he regarded himself as being like a father to AW.

1. The applicant was arrested on 16 December 2011 following a complaint made by AW or his mother on the previous day.  Subsequently, HB and her mother obtained Intervention Orders on behalf of themselves and the infant children which remain current.  The children have undertaken counselling.  Access by the applicant to his children was under the supervision of officers of the Department of Human Services but was later cancelled, after two access visits, when a report was received of the applicant having made threats against HB.  Proceedings were instituted in the Family Court.  A divorce was granted on 3 April 2013.  The court was satisfied that proper arrangements had been made for the care of W, L and J who remain in the custody of HB.

   PSYCHOLOGICAL ASSESSMENTS

2. The applicant was referred to the report completed by Dr Newton, who is qualified as a forensic and clinical psychologist and to assessments made prior to, during and at the conclusion of a sex offender programme (SOP) in which the applicant was a participant.

3. The report of Dr Newton dated 6 August 2012 was obtained for the purpose of the criminal proceedings (Supplementary G-documents (SG), p. 6-13). 

4. Mr Newton concluded that an evaluation of the risk of sexual recidivism in the applicant was moderate.  That finding will be discussed later.  However, in his concluding paragraphs, Dr Newton recorded:

   38.      While the progress [the applicant] has made is positive, he has so far taken only the first step towards his rehabilitation and his insight remains at a very early stage.  Accordingly, there is an unequivocal need for ongoing specialist treatment.  To be clear, I consider that completion of a comprehensive sex offender treatment program would be the single most important factor in the prevention of recidivism in [the applicant’s] case.  Accordingly, I would strongly suggest that he undertake such a program at the earliest possible opportunity.  [The applicant] ought also to continue with appropriate psychological counselling to address the social-skills deficits, and personality-based problems identified above.  Finally, he would benefit from participation in a program of structured education and counselling to consolidate his insight into alcohol related matters.

   39.      It is recognised that the matter of sentencing is one for the Court’s discretion alone.  From my area of expertise, I would simply note that [the applicant’s] naivety and lack of social skills would make him a comparatively vulnerable prisoner.  Moreover, successful completion of the recommended treatment programs is likely to involve a relatively long-term therapeutic engagement.  Accordingly, it would be my respectful suggestion that there may be some merit in imposing a longer than usual period of supervision in the community upon [the applicant] (whether by way of parole or some other Order) to ensure that he receives the treatment he requires in a context of appropriate supervision by relevant authorities.

5. The applicant said that he did not agree with the opinion of Dr Newton that he needed to have ongoing treatment.  He said that he had learnt everything from what has happened by my offending.

6. On 3 October 2012, a psychologist engaged by the Department of Justice wrote to the Adult Parole Board of Victoria advising that the applicant had been assessed, on 18 September 2012 (one month after the applicant was sentenced), as being a low risk of sexual and violent recidivism (SG, p.14).  However, perusal of other information available to that officer indicated that the methodology used to assess the applicant’s risk did not provide a reasonable assessment and it was decided that the applicant fell into the moderate risk category.

7. The methodology under which the applicant was assessed and which was described in the letter to the Adult Parole Board was Static-99.  It is described as an evaluation of static or unchangeable factors which correlate with sexual reconviction in adult males.  It provides an estimate of sexual and violent recidivism which can be adopted:

   … as a baseline of risk for violent and sexual reconviction.  From this baseline of long-term risk, assessment, treatment and supervision strategies can be put in place to reduce the risk of sexual recidivism (SG, p. 72).

8. The information available to the officer who wrote to the Parole Board on 3 October 2012 which satisfied her that the Static-99 assessment undertaken on 18 September 2012 was not reasonable, is not known.  However, the data recorded in the Static-99 Coding Form does contain an error because the applicant’s victim is recorded as being unrelated (SG, p. 15).  Had the data been accurately obtained, the rating against a finding of the victim being related would have placed the applicant in the moderate-low risk category.

9. The applicant commenced a SOP in January 2013.  A progress report completed and sent to the Parole Board on 4 March 2013 (SG, p. 37- 41), and completed by two Community Corrections Officers concluded under the subheading of Risk/Needs Assessment that the applicant had been found to be in a low risk category under the Static- 99 risk assessment tool.  There is nothing from this report which would indicate the applicant had been assessed by the Static-99 methodology other than on 18 September 2012 nor is there anything to suggest that the authors were aware of the letter written by the psychologist on 3 October 2012.

10. The officers recommended that the Parole Board wait until the Treatment Completion report by SOP, prior to considering parole.

11. The applicant completed the SOP on 11 April 2013.  Dr Willis, another psychologist engaged by the Department of Justice reviewed the applicant’s file and completed a report on 23 April 2013 (SG, p. 43-47).  She noted that there had not been any assessment of the applicant’s dynamic risk factors, which were a broad range of potentially changeable predictors of recidivism.  She reported that dynamic risk factors can enhance the predictive accuracy of offender risk assessments which are also helpful in identification of treatment targets (p. 44-45).

12. Dr Willis did note that the applicant:

    …used offence-related cognitive distortions to justify his offending as mutual experimentation of a gay relationship.  Sexual fantasies and continued cognitive distortions together with the pleasure he experienced through his offending appear to perpetuate his offending (p. 46).

13. Dr Willis concluded that she was unable to draw any conclusions about whether the SOP addressed the specific treatment needs of the applicant nor whether he had made any progress in addressing those needs.  Accordingly, in the absence of clinical assessment, her conclusions were to be understood as:

    … tentative and cannot be considered an exhaustive account of the factors that served to predispose, precipitate, and maintain (the applicant’s) sexual offending (p. 46).

14. Dr Willis concluded that probable dynamic risk factors, if present, which might increase the risk of re-offending were alcohol abuse, befriending males under 16 years of age and problems managing his emotions.  She reported that possible dynamic risk factors, if present, could be offence supportive sexual fantasies, which she noted had not been assessed.

15. In concluding this part, I note that Dr Newton did review dynamic risk factors and was satisfied that the applicant presented as a somewhat higher level of risk without treatment (SG, p.11).  He noted that the applicant’s history of alcohol abuse and its role in his offending was of concern.  He also was satisfied that the applicant did suffer cognitive distortions regarding the precocious sexual development of young people, his rationalisations about the victim’s role in the offending and his chronic social-skills deficits [which] elevate the risk. 

    CONCLUSION AND REASONS FOR DECISION

16. Between April or May 2010 and November 2011 the applicant, an adult male, sexually abused an infant boy on approximately 18 occasions.  The offending occurred after the infant had consumed alcohol, which on many occasions had been provided to him by the applicant.

17. The behaviour of the applicant in relation to AW, was calculated, intentional, exploitative and predatory.  The Australian community would find the offences to be disgusting.

18. For reasons which will follow, I am satisfied the applicant has abused the privilege given to him of residing in Australia because he has not been law abiding and he has caused harm to a member of the Australian community.  He has committed crimes of a sexual nature against a vulnerable member of the community, being an infant.  I am also satisfied that there is a risk of reoffending if he were permitted to remain in Australia which of course would be unacceptable and strengthens the case for his removal (Direction 55 paragraph 6.3).

    9.1      Protection of the Australian community

19. The first of the Primary considerations I must consider in applying Direction 55 is the protection of the Australian community which requires consideration of the nature and seriousness of the applicant’s conduct and the risk to the community should he reoffend.  The applicant’s conduct by his commission of sexual crimes, repeatedly, over an extended period, upon a vulnerable infant is to be regarded very seriously (9.1.1).  Having regard to the psychological assessments, I am satisfied that there is a moderate risk of him reoffending.

20. The Principals at 6.3(2) contemplate the circumstances of this application, namely whether a noncitizen should generally be expected to forfeit the privilege of staying in Australia, having committed a serious crime of a sexual nature against a vulnerable member of the Australian community, a minor.  That question will in part be answered by an assessment of whether the applicant is an unacceptable risk of future harm to the Australian community (Direction 55 paragraph 7(1) a)).

21. In order to make an assessment under paragraph 9.1.2 of the risk to the Australian community I am obliged to consider the nature of the harm, the likelihood of further offending having regard to any information or evidence about that risk and any evidence of rehabilitation.

22. I will later discuss the basis for my conclusions concerning the risk to the Australian community if the applicant was permitted to remain here.  At this stage I would indicate that I am very concerned, in the absence of adequate treatment, that there is a risk of the applicant reoffending as he did previously.  I am also concerned that he has not had adequate counselling nor has attention been properly given to his alcohol consumption and his temper.  His sentence has concluded and he is currently a resident of immigration detention.  Although he is eligible for parole, if released into the Australian community, which will be upon terms, I am directed by paragraph 9.1.2 b) ii, that a decision on the determination of risk is not to be delayed in order for rehabilitative courses to be undertaken. 

23. I will note at this stage that the applicant’s brother, SL, a physiotherapist, spoke in strong and supportive terms at the hearing.  He said he was prepared to stand by the applicant and would advise him to morally make amends.  It was his opinion that the applicant’s environment, including his consumption of alcohol, together with the illness of his mother-in-law was responsible for his offending.  He said he had also visited the applicant whilst in gaol and was satisfied that his brother was determined to make amends and repent.

    9.2      Strength, duration and nature of the applicant’s ties to Australia

24. The applicant resided in Australia for about 6 years between 1989 and 1995 and for about 6 years subsequent to 2007. 

25. He was 17 years of age when he first arrived.  He eventually obtained a work permit, he earned income, was engaged in a relationship but eventually returned to Fiji.  The applicant was 36 years of age when he arrived in Australia in 2007.  He has subsequently been employed.  He first offended in 2010, 3 years after he returned, when he was 39 years of age.  He did not have any prior convictions.

26. There are 5 children of the applicant’s marriages who reside in Australia.  Two of the children, C and D are adults and live independently from him.  His daughter, C is the mother of 2 children.  Accordingly the applicant has grandchildren also present in Australia.  He has an extended family of cousins, aunts, uncles and a brother, some of whom live interstate.  C, D and his brother gave evidence in this review.  All of his immediate and extended family members, living in Australia are entitled to remain here.

27. The marital relationship between the applicant and HB has ended.  She made it very clear from her evidence that she has no wish to have any association with him.  There is an enduring intervention order against the applicant in favour of the 3 infant children and herself.

28. The applicant was employed on a full-time basis until shortly prior to his arrest.  There is no evidence of any contribution by him, other than employment, to the Australian community.

    9.3      Best interests of minor children in Australia affected by the decision

29. The applicant’s 3 infant children, W, L and J are presently 17, 13 and 3 years.  None of them have had any contact with the applicant after he was arrested except for 2 supervised access visits.  They did not visit him in gaol nor is there any evidence that they communicated with him either by letter or by telephone.

30. It would be a very rare situation where a finding could be made that a child’s interests would not be adversely affected by a visa cancellation of a parent.  J was 15 months old when the applicant was arrested.  He would not have the same relationship with the applicant as held previously by W and L, who are both significantly older and have lived with their father from birth until he was arrested.  It would appear that the relationship between W and L and the applicant is now very remote.  They are aware of his offending and of the identity of his victim.  It is unlikely that the applicant, if permitted to remain in Australia, could undertake any positive parental role until he successfully completes rehabilitation and treatment and the children are prepared to trust him.  Certainly there will not be any parental role, positive or otherwise during the currency of the intervention orders.

31. If the applicant returns to Fiji, he will not be denied the opportunity of communicating with his children.  Nor are they denied the opportunity of communicating with him, should they elect.  Perhaps when W and L are older they could travel to Fiji to visit him. (Mr Brown indicated during the hearing that he had been instructed that if the applicant was returned to Fiji, his children W and L, who are not Australian citizens will be permitted to remain in Australia with HB).

32. There was no evidence from an appropriately qualified person of whether the best interests of the children would be affected by cancellation of the applicants these.  I am therefore, unable to make any finding on this issue.  I note that the applicant could not play any role, positive or otherwise during the currency of the Intervention Orders.  HB does play a significant and admirable role with the children.  I also note that L now lives interstate with other members of the applicant’s extended family.  There is no evidence that the children have experienced any emotional trauma by the conduct of the applicant but it would not be difficult to comprehend them experiencing a wide range of emotional reactions to his conduct, none of them likely to be positive or endearing them to him.  

    9.4      International non-refoulement obligations

33. This consideration is not relevant in this application. 

    10.      Other considerations

34. There are a number of extended family members of the applicant who reside in Australia.  The previous extent of his contact or association with them is unknown although it would appear from exhibited documents and correspondence that many of those persons are prepared to support him should he be permitted to remain in Australia.  There would be no impediment faced by them in visiting or communicating with the applicant should he return to Fiji.  The applicant’s adult children, C and D spoke positively about him and expressed their sadness should his visa be cancelled.  The applicant’s brother, SL, spoke positively and said the applicant should be given an opportunity to prove himself in Australia.

35. There is no evidence that any Australian business interests would be impacted by the applicant’s removal.

36. The only reference of the impact upon AW by the offending is a reference by His Honour Judge Smallwood in the sentencing remarks where part of a victim impact statement is reproduced (p. 92) in which AW recorded his anger at the applicant and the effect of his offending on his family.  The applicant’s former wife, HB, recorded in her statement (Exhibit R1 at paragraph 23) that AW has been very badly affected by the experience and his mother would be devastated if the applicant remained in Australia.

37. I am satisfied on this brief information, in the absence of any other, including specialist evidence that by regard to the offending committed by the applicant there is a likelihood of a negative impact on the victim and his family if the applicant’s visa is not cancelled. 

38. I am not satisfied that there would be any impediment faced by the applicant upon returning to Fiji sufficient to satisfy me that he should be permitted to remain here.

39. The applicant has lived for 30 of his 42 years in Fiji.  He is of course familiar with its culture and, as was learnt during this hearing from the evidence of the applicant and his brother, he is also very aware of and able to deal with the political climate existing in Fiji.  The applicant speaks the English language which he said was the prominent language spoken in Fiji.

40. The applicant’s parents both reside in Fiji and the applicant said he would be able to reside with them.

41. Although the prospects of obtaining employment appear at least presently to be bleak, it was learnt during the hearing that there is a thriving tourist industry in which the applicant has previously been employed.  Salaries in that industry also appear to be modest (compared to Australia) but would be preferable to being unemployed and impecunious, because it was also learnt that there is no social security system other than payment of pensions to persons over the age of 65 years.

42. The applicant has previously suffered a neck injury which resulted in surgery following a work accident in Melbourne.  He currently has a Workcover application seeking an impairment lump sum and has engaged solicitors in Melbourne.  The future of that application remains uncertain.  However, the applicant’s evidence of continuing complaints of neck, shoulder and right arm pain is in my view capable of being treated in Fiji.  Whilst the applicant’s brother described Fiji as a third world country, he did indicate that hospitals exist where treatment, if needed, could be provided.  There is no evidence of the applicant suffering any other illness or injury which would be likely to cause him to need medical treatment.

    Risk of future harm

43. Paragraph 7 of Direction 55, reproduced earlier, compels consideration of 2 issues, namely:

    (a)whether the considerations in Part A support a finding that the visa held by the applicant should be forfeited; and

    (b)whether the risk of future harm by the applicant should he be permitted to continue to reside in Australia is unacceptable.

44. I am satisfied that both of these issues should be answered affirmatively.

45. In the recent Federal Court decision of Williams v Minister for Immigration and Citizenship and Anor [2013] FCA 702, North J stated that a process of balancing the primary and other considerations within (relevantly) Part A of Direction 55 in order to determine whether to cancel a visa was impermissible. Rather, His Honour decided at [42-43]:

    This is not however the process contemplated by [7] of the Direction.  The question which the Tribunal is required to determine is stated in [7(1)(b)].  That question is “whether the risk of future harm by a non-citizen is unacceptable”.  This is a different question than the question whether by balancing the considerations for and against cancellation, the applicant’s visa should be cancelled.

1. The nature of the applicants offending, the Principles at paragraph 6 and the Primary and Other considerations point strongly to visa cancellation because I regard the risk of future harm by the applicant reoffending as unacceptable.

2. He has committed crimes of a sexual nature which were also crimes of violence.  The offences were committed by him, an adult male (who is also a parent of children) on an infant who is a relative and to whom he thought of himself as like a father.  The offences were committed over an 18 month period and when he allowed or caused the victim, then aged between 12 and 13 years to have consumed alcohol.  The applicant’s brother described the offending as absolute evil.  It is not hard to disagree with that description. 

3. I am also satisfied, especially in the absence of the applicant having undertaken a comprehensive sex offender treatment programme, as recommended by Dr Newton in his report (SG, p. 13 at paragraph 38), the applicant must be found as remaining at risk of reoffending which is therefore, unacceptable having regard also to the primary and other considerations in paragraphs 9 and 10 of Direction 55.

4. I acknowledge that the failure to have undertaken appropriate treatment was not by any default or resistance on the part of the applicant.  It would appear that the recommendations of Dr Newton were not acknowledged or honoured.  Perhaps the opportunity, whilst incarcerated to have had treatment as recommended was not available, as opposed to completion of a three-month SOP, the content, process and outcome of both being very different.  Dr Willis also noted and reported extensively that the deficiencies of the SOP during incarceration prohibited her from making any finding of the extent of risk of the applicant offending.

5. The applicant said in evidence that he did not agree that he needed treatment.  He acknowledged that alcohol was a problem and often the precursor to his offending behaviour.  I acknowledge he completed a semi-intensive alcohol treatment program while incarcerated (Exhibit A2, p. 9).  Throughout the hearing he repeatedly expressed his intention to abstain from alcohol, to pursue and practice his Christian faith and to not reoffend.  It was for these reasons that he did not believe that he needed treatment for his offending.  The applicant said on several occasions during the hearing that he had taken responsibility for his actions.  The applicant said that the alcohol program included attention to anger management, which, on the evidence heard, will hopefully have been useful to him.  However, in the absence of any information about the content of the program, it is impossible to know whether it offered structured education and counselling to consolidate his insight into alcohol related matters (SG, p. 13 at paragraph 38) as Dr Newton recommended. 

6. There was discussion later in the hearing of the possibility of him having undertaken a 6 or 9 months sex offender program but which was not available to him and which he said he would have preferred and willingly undertaken.  During this discussion, the applicant did indicate that he would be prepared to engage in treatment.  However, having observed the applicant over 2 days, having heard the evidence of witnesses and read the documents lodged, I was and remain satisfied that his subsequent expression of willingness to undertake treatment was self-serving and not a genuinely expressed belief of any need for treatment as contemplated by Dr Newton.

7. Dr Newton initially reported that a review of the dynamic risk factors of the applicant, without treatment, indicated a higher level of risk.  He also reported that the applicant’s cognitive distortions also elevated the risk of reoffending.  He concluded that the overall level of risk would best be understood as falling in the moderate risk range (SG, p. 11 at paragraph 35).

8. A psychologist engaged by the Department of Justice dismissed a finding of the applicant being at low risk on the basis of a Static- 99 assessment and concluded that perusal of the file indicated that the applicant was also in a moderate risk category of reoffending.

9. As recorded above, Dr Willis was unable to determine from the SOP that the dynamic risk factors had been considered in that program.

10. On balance, therefore, I am satisfied that the applicant has not had any or any adequate treatment.  In the absence of the dynamic risk factors being determined and addressed during the SOP and attention also being given to his cognitive distortions, the applicant does, in my view, remain at risk of reoffending and on the evidence available in this review the risk must be regarded as moderate.

11. The absence of specialist treatment satisfies me that the applicant has not obtained insight into his behaviour and to the consequences of his offending which may have reduced or eliminated the risk of offending and/or prevented recidivism.

12. I am satisfied on the evidence, having regard to the Primary and Other considerations and especially in the absence of treatment, that there is a moderate risk of future harm by the applicant should he continue to reside in Australia. 

13. I acknowledge that his removal will distress some persons, however, I am satisfied there is a risk of him reoffending, his continued presence here is unacceptable and he has forfeited the privilege of staying in Australia.

    DECISION

14. The decision under review will be affirmed.

I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for the decision herein of
Mr John Handley, Senior Member

(sgd) Olympia Sarrinikolaou

Associate

Dated 15 January 2014

Date(s) of hearing	7-8 January 2014
Applicant	In person
Advocate for the Respondent	Mr D. Brown
Solicitors for the Respondent	Australian Government Solicitor