"SRMMMM" and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 798

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 798

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N2005/769

GENERAL ADMINISTRATIVE DIVISION		)
Re		“SRMMMM”

Applicant

And Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal Professor GD Walker, Deputy President

Date22 August 2005

PlaceSydney

Decision The decision under review is affirmed.

..............................................

Professor GD Walker
  Deputy President  

CATCHWORDS

IMMIGRATION – on-shore visa cancellation – cancellation of transitional permanent visa on character grounds – substantial criminal record including sexual offences – discretion that the tribunal may exercise where the applicant fails the character test – necessity to consider the protection and expectations of the Australian community against any hardship to the applicant if he had to return to his country of origin – found that from the applicant’s serial convictions he cannot be characterised otherwise than as a predator, the risk of recidivism is real enough to be significant, cancellation of his visa would send an undesirable message to other non-citizens contemplating or engaged in criminal activity, his life circumstances are not such that the community would exonerate his serial sexual and non-sexual offences, there will be some hardship for the applicant in returning to Germany – decision of the respondent affirmed.

Migration Act 1958 ss 499, 501, 506(c)(i), 507

Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385

Re Sam andMinister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

R v W Court of Criminal Appeal (2001)

REASONS FOR DECISION

22 August 2005	Professor GD Walker, Deputy President
Summary

1.      The applicant, SRMMMM, who is aged 54, is a citizen of Germany.  He came to Australia on 3 June 1968 and on 1 September 1994 was granted a transitional (permanent) visa under the Migration Reform provisions.  On 4 December 1998, SRMMMM was convicted of seven sex offences and sentenced to terms of imprisonment ranging from two years and six months to eight years, to be served concurrently.

2.      On 30 May 2005, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, cancelled SRMMMM’s transitional (permanent) visa on the ground that he failed the character test because of his substantial criminal record in Australia.  This is the decision to be reviewed by the tribunal.

Background

3. SRMMMM was born in Germany on 27 May 1951 and is aged 54. He is a citizen of Germany. He first arrived in Australia on 3 June 1968 at the age of 17 with his parents and sister and was granted permanent residence on arrival. He subsequently departed Australia on 13 February 1975, returning on 17 February 1975 and departing again on 23 December 1978 and returning on 27 January 1979. On 1 September 1994, he was granted a transitional (permanent) visa by operation of law under the Migration Reform Act. His parents, who are now deceased, returned to Germany two years after their arrival. While living in Australia, he has conducted his own service station and motorcycle parts business and worked as a television repairer, building estimator, a sales representative and repairer on a self-employed basis and as a glazier. He also established a video repair and sales agency business (G p62).

4.      Between 1972 and 1984 SRMMMM was convicted of a number of criminal offences including larceny, false pretences, receiving, goods in custody, and driving an unregistered motor vehicle, for which he received fines, periodic detention and self recognizance.  His more serious offences are listed below:

Court/Date	Offence	Sentence
Sydney District Court 4/12/1998	1. Sexual intercourse without consent with child 10 to 16 (first instance warrant 30823420). 2. Homosexual intercourse (first instance warrant 30823438). 3. Homosexual intercourse (first instance warrant 30823446). 4. Homosexual intercourse. 5. Buggery (first instance warrant 30823366). 6. Homosexual intercourse (first instance warrant 30823454)). 7. Indecent assault. 8. Act of gross indecency Section 78Q(1) Crimes Act. 9. Homosexual intercourse Section 78K. 10. Homosexual intercourse 78K. 11. Act of gross indecency Section 78Q(1) Crimes Act. 12. Act of gross indecency Section 78Q(1) Crimes Act. 13. Attempted homosexual intercourse Section 78L.	1. Fixed term 8 years commencing 25/7/1997 concluding 24/7/2005 (severity appeal lodged). 2. Fixed term 8 years commencing 25/7/1997 concluding 24/7/2005 (severity appeal lodged). 3. Fixed term 8 years commencing 25/7/1997 concluding 24/7/2005 (severity appeal lodged). 4. Fixed term 8 years commencing 25/7/1997 concluding 24/7/2005 (severity appeal lodged). 5.  Indicted for minimum term 8 years concurrent: additional term 2 years 6 months conclude 24/1/2008 (matters taken into account on form 1). 7 – 12. Taken into account on Form 1. 13. Indicted: fixed term 2 years commencing 25/7/1997 concluding 24/7/1999 (severity appeal lodged).
Court of Criminal Appeal 3/5/2001	1. Sexual intercourse without consent with child 10 to 16 (first instance warrant). 2. Homosexual intercourse (first instance warrant 30823438). 3. Homosexual intercourse (first instance warrant 30823446). 4. Homosexual intercourse 5. Attempted homosexual intercourse. 6. Homosexual intercourse with male 10-18 years. 7. Buggery.	1. – 7. Leave to appeal granted – appeal dismissed.

5.      On 23 February 1999, an officer of the then Department of Immigration and Multicultural Affairs (“DIMA”) informed SRMMMM that his convictions for attempted homosexual intercourse, sexual intercourse without consent, homosexual intercourse and buggery may render him liable for cancellation of his visa and inviting him to provide any material as to why this should not happen (G p39).  SRMMMM responded by letter of 7 March 1999, stating that he was a permanent resident of Australia and that felt that the notice of intention did not apply to him (G p41).

6.      On 31 December 2004, a further letter was sent to SRMMMM by an officer of the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) stating that a delegate of the department or the Minister was considering cancelling his transitional (permanent) visa on the grounds of his substantial criminal record and past and present criminal conduct and inviting him to comment. The officer also advised SRMMMM that the delegate or the Minister would be taking into consideration his criminal history and the sentencing comments of the Sydney District Court judge on 4 December 1998 (G p42).

7.      SRMMMM’s solicitor, Mr Paul Mee Ling, responded to the department by letter of 5 May 2005 (G p47).   He submitted that while the crimes were “serious and abhorrent”, the terms of imprisonment received by SRMMMM were “far less than the weight of the law” could have applied; his environment in Australia played a part in his offences; his prison references show rehabilitation; he rendered assistance to the authorities; he has no family in Germany and would be compelled to make a life in a “strange country”; he has an obligation to pay compensation in Australia; and that he is the holder of a permanent residency visa (G pp47-48).

8.      Mr Mee LIng also lodged for consideration a psychological report from Dr Robert Delaforce, forensic psychiatrist, of 4 May 2005.  Dr Delaforce concluded that he did not have sufficient information to exclude a diagnosis of paedophilia:  “because I do not know if the young male victims were prepubescent or otherwise” (G p53),  or any other current or past mental disorder and that psychiatric treatment was not appropriate to his condition but that the best form of assistance would be counselling.  He also concluded that the positive aspects mentioned of SRMMMM “cannot be a guarantee that he will not offend sexually in a similar manner or offend in a non-sexual way and similar to his other convictions” (G p54). 

9.      SRMMMM also made written submissions to the department dated 28 April 2005, in which he stated that he did not commit the offence of sexual intercourse without consent or any offences against any persons under the age of 16; that his previous criminal history only involved minor dishonesty while he was in business; while in prison he has had no charges of misconduct made against him; he has progressed through the classification system to minimum security; that he has furthered his education and used his computer skills to assist both officers and inmates; that he is now mentally strong enough to resist further temptation to revert to his previous lifestyle and that he is certain he will never offend again (G pp62-64).

10.     On 6 May 2005, Mr Mee Ling submitted further documents to the department including four character references, a work report from the Department of Corrective Services, a Probation and Parole Service pre-sentence report of 25 November 1998, and a report of Dr Bruce Westmore, forensic psychiatrist, of 9 October 1998 in which he concluded that SRMMMM “does not suffer from a diagnosable psychiatric disorder although his history clearly suggests he has some psychosexual difficulties … Accepting his history that there were no threats or coercion involved in these behaviours [SRMMMM paid the males involved for their sexual favours], I would suggest that his dangerousness to the community is minimal” (G p75).  As his comments indicate, Dr Westmore was unaware that SRMMMM would later plead guilty to sexual intercourse without consent.

11. On 30 May 2005, a delegate of the respondent decided to cancel SRMMMM’s transitional (permanent) visa because of his substantial record and past and present criminal conduct and the continuing risk that he would re-offend, and having exercised her discretion under s 501(2) to cancel his visa (G1). This decision was notified to SRMMMM by letter of 9 June 2005. On 17 June 2005, SRMMMM lodged an application for a review of this decision by the tribunal.

12.     SRMMMM is currently imprisoned at the Grafton Correctional Centre.

13. At the hearing, the applicant was represented by Mr Paul Mee Ling, solicitor, Mee Ling Solicitors, and the respondent was represented by Mr Rowan Higgins, solicitor, Clayton Utz, lawyers. The evidence before the tribunal comprised the documents produced under s 501G of the Migration Act 1958 (“the Act”) (“the G Documents”), taken into evidence as Exhibit A1, together with other evidence submitted by the parties before and at the hearing. SRMMMM gave oral evidence in person. Because the applicant has been a registered police informant and will be in prison for some time yet, an order under s 35(2) of the Administrative Appeals Tribunal Act 1975 was made restricting publication of his name.

Relevant Law and Policy  

14. Under s 501(2) of the Act, the Minister may cancel a visa granted to a person if the Minister reasonably suspects that the person does not pass the character test (s 501(2)(a)) and the person does not satisfy the Minister that he does in fact pass the character test (s 501(2)(b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant grounds in the current matter are s 501(6)(a) and s 501(6)(c)(i). Section 501(6)(a) provides:

For the purposes of this section, a person does not pass the character test if:

(a)the person has a substantial criminal record (as defined by subsection (7));

…

”Substantial criminal record” is defined in s 501(7) to include a person who “has been sentenced to a term of imprisonment of 12 months or more”.

15. Section 501(6)(c)(i) states:

(c)       having regard to either or both of the following:

(i)        the person’s past and present criminal conduct

…

the person is not of good character; …

16. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.

17. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The Direction provides guidance on the application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

Issue

18. In the present case, SRMMMM does not pass the character test because of his “substantial criminal record”, having received on 4 December 1998, sentences of eight years on each conviction of sexual intercourse without consent with a child, homosexual intercourse (three counts), homosexual intercourse with a male older than 10 and less than 18, and buggery and a term of imprisonment of two years for attempted homosexual intercourse, the terms to be served concurrently. The issue remaining, therefore, is whether the tribunal should exercise the discretion under s 501(2) not to cancel SRMMMM’s visa.

Evidence

19.     The applicant gave oral evidence, adopting and supplementing his earlier statements.  He related how he arrived in Australia at the age of 17, having just completed high school in Germany.  He enrolled in a course at Royal Melbourne Institute of Technology in electronics and communications repair, successfully completing it three years later.  He established or operated at various times a number of generally successful businesses and also worked for 10 years in a managerial capacity at Sydney Wide Glass Pty Limited until his arrest in 1997.  In 1973 he began a relationship with a Dutch girl to whom he became engaged in 1978.  Six months later, and two weeks before they were to be married, his fiancée was killed in an explosion at her place of work.  The applicant disposed of his business and returned to Germany for two months.  On returning to Australia he moved from Melbourne to Sydney, where he established Video-Tech Pty Limited, a business selling and repairing video cassette recorders and distributing wholesale imported Konica tapes and accessories.  He worked hard and the business was successful until a 30 per cent customs tariff duty was imposed on imported tapes.  He later sold that business and joined Sydney Wide Glass.

20.     After coming to Sydney, he led a withdrawn life, and drank and gambled to excess.  From about 1981 onwards he began to engage in homosexual activity.  He would pay adolescent boys, who he regarded as male prostitutes or “rent boys”, for sexual favours.  He had himself been used by older males in that way on two occasions when he was 17.  The applicant fell into that behaviour himself, he said, because when he moved to Sydney he fell into bad company and his “orientation went wrong”.  He pleaded guilty to the charges of homosexual behaviour with youths because he was told that by so doing he would avoid any media coverage and, by disposing of all the charges together, he would get matters over with. 

21.     He admits the offences, except for the charge of sexual intercourse without consent, the most serious count raised against him, saying that he had never met the victim and had never used force in that way.  His explanation for pleading guilty was rather confused, but essentially he thought that as it would be dealt with as part of a schedule of offences taken into account, it would not be a major factor in the sentence.  He also disputes the ages of some of the victims, denying that there were any as young as 13 and stating that the offences occurred later when the boys were older.  He said he had thought all of them were over 16. 

22.     During the first six weeks of his sentence he was in protective custody, but decided to sign out of protection into the mainstream of the jail system.  Many of the inmates in the protection unit openly bragged about their “exploits” and sexual assaults, and the applicant wanted to get away from that situation, where there were the kinds of people who might have influenced him earlier before his arrest.   He had not taken part in a sex offenders’ program because that option was offered to him only in 2004 when he earned a “C” classification.  It was necessary to be rated for minimum security before being eligible for such a program.  In the meantime he has been on the waiting list to participate in the program. 

23.     While in prison he has never been charged with any offence and has never been the subject of any allegations of misconduct.  He worked for the first two and a half years of his sentence as clerk to the area manager of the Metropolitan Remand and Reception Centre, in the reception room at Grafton and since April 2002 as a clerk for the manager of employment and centre services.  He has highly favourable references from several different supervisors at the MRRC and Grafton, which describe him inter alia as punctual, efficient, helpful, considerate and a “model inmate”. 

24.     SRMMMM also relies on two psychiatric reports, one dated 9 October 1998 by Dr Bruce Westmore (Exhibit A1 pp71-75).  In Dr Westmore’s opinion, “[the applicant] does not suffer from a diagnosable psychiatric disorder although his history clearly suggests he has some psychosexual difficulties….  He indicated that he was not a predator in relationship to his sexual activity with the people, but he indicated money was given to them in exchange for sexual favours.  From a psychosexual perspective [the applicant] describes himself as being bisexual … .  If his reported sexual history is correct, he does not suffer from the condition, paedophilia. That condition requires the perpetrator to have an almost exclusive interest in prepubescent children.  [He] reports that his interests sexually involve young males who are sexually developed in that they have secondary sexual characteristics.  Over recent years the term hebephile has been used to describe this type of sexual orientation.  This classification (unofficial) refers usually to adult male homosexuals whose preferred sexual focus is adolescent males”.  In conclusion Dr Westmore wrote that “Accepting his history that there were no threats or coercion involved in these behaviours, I would suggest that his dangerousness to the community is minimal”. 

25.     A more recent report, dated 4 May 2005, was prepared by a forensic psychiatrist, Dr Robert Delaforce (Exhibit A1 pp49-54).  His report describes the applicant as “a strong and fit man who related confidently and appropriately to me and demonstrated his good social skills”.  He did not disagree with Dr Westmore’s conclusion that excluded a diagnosis of paedophilia, simply noting that he lacked sufficient information on whether the young male victims were prepubescent or not.  He reported that SRMMMM repeatedly and spontaneously accepted without excuse that he had offended.  “His only disagreement with the judge’s findings resulted from [SRMMMM] deciding to accept legal advice to plead guilty to all of the charges rather than contest some of the charges in spite of his denial of anal intercourse or realising that any of the victims were under age 16 years”.

26.     Dr Delaforce concluded that this case did not reveal the usual history of paedophilia and it was more likely that SRMMMM’s sexual offending from about age 30 years was the result of the marked change in his life when he moved from Melbourne to Sydney after the death of his fiancée.  The applicant “impresses as a resourceful person, as indicated by the prominent employment positions he continues to hold during his imprisonment.  He probably would have considerable motivation to get himself into employment on release from prison.  My presenting these positive aspects about [SRMMMM’s] living in Australia outside of prison nevertheless cannot be a guarantee that he will not offend sexually in a similar manner or offend in a non-sexual way and similar to his other convictions”. 

27.     In one relevant respect the account given by Dr Delaforce differed from the applicant’s evidence at the hearing.  When Dr Delaforce asked the applicant about his sexual thoughts and fantasies during this imprisonment (Exhibit A1 p51), he referred to them as being “greatly diminished”.  “His only homosexual activity during imprisonment,” Dr Delaforce said, “was with a 28-year-old male in 2004”.  In cross-examination, however, SRMMMM said that he had not engaged in any homosexual activity while in jail.   SRMMMM gave his oral evidence in a generally clear and straightforward manner, but I think that on occasion he saw fit to embellish the truth. 

Application of the Law and Findings of Fact

28. As stated above, there is no dispute, and I find accordingly, that SRMMMM does not pass the character test by reason of s 501(6)(a) 501(6)(a) of the Act because he has a “substantial criminal record”, defined in subsection (7) as including a person who has been sentenced to a term of imprisonment of 12 months or more. As stated above, the applicant has been convicted of a number of offences for which he was sentenced to a term of imprisonment greater than 12 months.

29. The issue for the tribunal therefore is whether to exercise its discretion under s 501(2) to decide, nevertheless, not to cancel SRMMMM’s visa. In so doing, the tribunal must have regard to Direction No 21 as a guide to the exercise of its discretion.

30.     Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:

Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

Paragraph 2.3 sets out the primary considerations:

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.

Paragraph 2.4 explains:

The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.

31.     Examples of what the Government views as serious offences are set out in paragraph 2.6.  These include, in subparagraphs “(d) sexual assaults are particularly repugnant to the Australian community, especially sexual assaults involving children regardless of whether there was overt violence or the threat of violence”; (f) assault or any other form of violence against persons; and “(m) crimes against children: due to their vulnerability as victims and potential victims, crimes against children take on a special significance, especially crimes involving inducing children to take illicit drugs, sexual assaults on children, child prostitution, violence to children, kidnapping and crimes taking advantage of children”.  Paragraph 2.7(b) also states that decision-makers should have due regard to the Government’s view that crimes involving violence against defenceless persons (such as children) are especially repugnant to the whole community.

32.     Paragraphs 2.10 and 2.11 refer the decision-maker to the likelihood that the conduct may be repeated (including any risk of recidivism), and to general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons. 

Protection of the Australian Community

33.     The first factor to be considered under this heading is the seriousness and nature of the conduct involved.  In this case, the applicant, who has a criminal history from 1972, committed a number of very serious sexual offences, including sexual intercourse without consent with a child 10 to 16 years. Each count dealt with a separate young male victim:  one of the boys was aged 17 at the material time, the others were aged from about 13 to 15.  Paragraph 2.6(d) of Direction No 21 lists sexual assault against children as being particularly repugnant to the Australian community and that any crimes against children take on a special significance (paragraph 2.6(m)). 

34.     In his sentencing remarks on 4 December 1998, Patten J of the New South Wales District Court commented that the first charge against the applicant, sexual intercourse without consent on a child 10 to 16 years, had been “committed in company, with force and without any semblance of consent.  It was committed in most degrading circumstances and caused injury” (Exhibit A1 p88).  The applicant denies that offence, but while the tribunal may take into account evidence of the circumstances in which a crime was committed, it is settled law that the tribunal must proceed on the basis that all convictions are correct and all sentences justified (see Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385 at paragraph 42). In any event, in addition to his sentence of eight years on that count, the applicant was on the same occasion sentenced to three concurrent terms of eight terms. Those sentences, as Mr Mee Ling pointed out, were considerably less than the possible maximum, but they are still very substantial sentences and a strong indication of the highly serious nature of the offences involved.

35.     Mr Mee Ling argued that the offences were not so serious as to impel visa cancellation. They had been committed by a man vulnerable to homosexual behaviour, who had been abused in that way himself, and who fell into serious wrongdoing at a time when his life was collapsing.  He did not engage in deliberately predatory behaviour but took advantage of the circumstances in which he found himself.  Dr Westmore had concluded that he was not a paedophile. 

36.     The fact that SRMMMM was sexually abused by an older male at the age of 17 (though such conduct is now lawful) may well have contributed to his later pattern of behaviour.  His fiancée’s sudden death shortly before their intended marriage must have been traumatic for him.  But many people, unfortunately, have tragedies in their lives.  Most do not then proceed to engage in serious criminal behaviour.  The applicant was aged 30, a mature man of considerable worldly experience, when his serial sex offending began.   He had a choice as to how he would react to his misfortunes and he chose a course that was harmful to others and destructive to himself.

37.        It is true that the psychiatric definition of paedophilia involves sexual activity only with prepubescent children (Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, [“DSM-IV”] 1994, 527).  Most people, however, would consider the sexual abuse of a 13-year old as equally abhorrent whether the boy had entered puberty or not.  In any event, the DSM-IV definition of paedophilia does not accord with the general community perception of that condition in another important respect also: the definition requires that the behaviour cause clinically significant distress or functional impairment to the perpetrator, rather than the victim (p 528).  Further, as I must assume the correctness of the applicant’s conviction for sexual intercourse without consent, the applicant cannot be characterised otherwise than as a predator. 

38.     I agree with the comments of Judge Patten when sentencing SRMMMM, when he stated that (Exhibit A1 p86):

To respectfully adopt the words of Sully J in R v Fisk, … the prisoner’s behaviour “constituted a course of appalling sexual abuse on vulnerable young boys over a lengthy period of time”. 

As his Honour comments in relation to Fisk, “reasonable intelligent and properly informed public opinion would find utterly abhorrent the prisoner’s course of conduct”.

39.     The applicant pointed out that from March to July 1996 he had been a registered informant who had supplied the police with information that had enabled them to locate and arrest a notorious paedophile who was at that time outside Australia.  The Court of Criminal Appeal, in considering the severity of his sentence, noted his claim that he had not raised that matter in mitigation at sentencing because he had not realised it was relevant.  The court took the view that while the applicant did supply the authorities with information that was of substantial value, he had come to the relevant authorities as a matter of self-preservation in the expectation that the police might do something for him in due course if he helped them.  His real reason for not disclosing it at the time of sentence was that it was better overall from his standpoint not to disclose the assistance he had rendered to the authorities so as to ensure his imprisonment would not be made any more harsh than it was going to be because he had assisted law enforcement authorities (R v W, Court of Criminal Appeal, 3 May 2001, pp7-8).

40. The applicant’s cumulative record of non-sexual convictions could itself be regarded as serious. Between 1972 and 1996, the applicant was convicted of a range of offences including larceny, illegal use of a motor vehicle, multiple charges of false pretences, receiving stolen goods and conspiracy. The sentences imposed began with probation and small fines, and culminated in two sentences of 18 months periodic detention on conspiracy and false pretences charges. It could be argued that those offences alone could cause the applicant to fail the character test in s 501(6)(c), which relates to the person’s past and present criminal conduct or past and present general conduct.

41.     Mr Mee Ling contended that the conduct for which SRMMMM was convicted was unlikely to be repeated as it occurred at a time when he was weakened by his circumstances and that there was a pattern of diminution over time.  There was a reasonable chance that he would not reoffend as he would be on parole and under treatment.  The psychiatric reports showed that he was not a paedophile, was not suffering from a mental illness and was not sexually fixated on immature young people.  The Parole Board in the near future will be considering the likelihood of his reoffending and as there had not yet been any searching inquiry into that issue it was inappropriate for the tribunal to make a finding on the question of possible recidivism.

42.      The tribunal, however, cannot postpone its decision.  It has a statutory obligation to decide the application within strict time limits on the evidence now available.  The strongly supportive references from corrective services administrators are evidence of rehabilitation that should be given due weight, but it is also true that they relate to behaviour in a controlled environment where, among other things, there are no youths under 18.  His one admitted episode of homosexual contact in prison, involving a 28 year-old male, may not be highly significant, but his apparent attempt to mislead the tribunal about that encounter does not inspire confidence.  

43.     As recently as 4 May 2005, Dr Delaforce concluded that there could be no guarantee that the applicant would not offend sexually in a similar manner or offend in a non-sexual way and similar to his other convictions.  While there can never be guarantees about future human behaviour, I think that the risk of recidivism in this case, though perhaps not substantial, is real enough to be significant. 

44.     The applicant regularly appeared before the courts between 1972 and 1996 for offences of a lesser nature including false pretences, receiving, goods in custody and dishonoured cheque, for which he received fines and periodic detention but not full-time custody.  In 1998, he was convicted of the serious sexual offences for which he is currently imprisoned.  Paragraph 2.10(b) of Direction No 21 states that a non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of past behaviour.   While sentencing the applicant on 4 December 1998, Patten J did not deal with the issue of recidivism but commented:

It may well be true as he asserts that in relation to his victims he was not a predator, but nonetheless, he is to be regarded as a person willing to contribute to the degradation of vulnerable boys plainly needing protection from persons such as himself. (Exhibit A1 p86)

45.     In his submission to the department of 28 April 2005, SRMMMM stated that he was mentally strong enough to resist any temptations to revert to his previous lifestyle and “I will never again put myself into any situation that would send me back to jail” (G p64).   “I am willing to participate in a Sex Offenders Treatment Course if I am required to [do] so” (G p64).  He is on the waiting list for such a course, but  in her statement of facts and contentions the Minister contends that the likelihood of the applicant re-offending in accentuated because the applicant did not complete a sex offenders course whilst in prison (Exhibit R1).

46.     The third consideration relevant to community protection is general deterrence, which aims to deter others from committing the same or similar offences. “Whilst not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa” (Direction No 21 paragraph 2.11).  Deterrence is a factor shown by contemporary research to play a more important role in crime causation than had previously been thought (see Re Sam andMinister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003 paragraph 31). The deterrent effect of a particular decision is impossible to measure in advance, but it is safe to say that exercising the discretion in favour of not cancelling the visa in this case would send an entirely undesirable message to non-citizens contemplating, or currently engaged in, criminal activity.

Expectations of the Australian community

47.     The second primary consideration is set out in paragraph 2.12 of Direction No 21 and states that the community expects non-citizens to obey Australian laws while in Australia.  Failure to do so may make it appropriate to cancel such a person’s visa.  “Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concern or offences are such that the Australian community would expect that the person … should be removed from Australia”.

48.     The applicant has engaged in continuous criminal conduct since 1972 up until 1997 when he was imprisoned.  His serious sexual offences against boys aged 13 to 17 resulted in concurrent sentences of eight years each as well as some shorter terms.  Any observer of the Australian contemporary scene would be well aware of the community revulsion against the criminal sexual exploitation of immature young people, whether that conduct officially satisfies the exiguous DSM-IV criteria of paedophilia or not.  Most people would make some allowances for the tragedy of his fiancée’s sudden death, which appears to have triggered his descent into serious law-breaking.  But few would regard the applicant’s circumstances as exonerating him from 13 years of serial sexual and non-sexual offending. 

49.     In my view the expectations of the Australian community would favour visa cancellation in this case.

The Best Interests of the Child

50. There is no evidence that the applicant has any children or that any child would be affected by a decision under s 501(2) of the Act.

Other Considerations

51.     Having applied the other primary considerations, the tribunal is then required to take into account a number of other considerations to which a decision-maker is directed by Direction No 21, which, though generally given less individual weight than that given to the primary considerations, may have a bearing on the appropriate decision.  These other considerations include:  the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; any evidence of rehabilitation and any recent good conduct; and whether the application is for a temporary visa or permanent visa.

52.     The applicant’s parents are deceased.  He has one sister living in Germany and another sister living in Melbourne. He has no other relatives in Australia and no longer has any business interests here. The applicant stated in his letter to the department of 28 April 2005, that if he were allowed to remain in Australia, then he would resume his employment with Sydney Glass (G p64), but there does not appear to be any evidence in the papers tendered to the tribunal (Exhibit A1) that such employment is still available to the applicant.  All the evidence shows the applicant as a resourceful and energetic person with a range of useful skills and aptitudes.  He would probably be able to find employment in Australia and has an expressed and demonstrated preference for working rather than living on social security benefits. 

53.     If his visa were cancelled he could return to Germany. The process of readjustment after such a long absence would probably impose some hardship on him, although he gave no evidence on that subject.  Having completed high school in Germany, he presumably still speaks and writes the language, and he has a sister there who might be able to offer some assistance in the early stages.  His work skills would appear to be transferable and his fluency in English would give him an additional advantage in the employment market.  Further, as the respondent points out, he is likely to face some hardship in reintegrating into the community even if he remains in Australia.  The other considerations, do not, therefore, strongly weigh against visa cancellation.

54.     In my view the primary considerations of community protection and community expectations are not outweighed by the other considerations in this case and warrant exercising the discretion in favour of cancelling the visa.

55.     The decision under review should be affirmed. 

I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

Signed:         .....................................................................................
  Associate

Date/s of Hearing  8 August 2005
Date of Decision  22 August 2005
Solicitor for the Applicant          Mr P Mee Ling, Mee Ling Solicitors
Solicitor for the Respondent     Mr A Chand, Clayton Utz Lawyers