The total effective term of imprisonment to which the applicant was sentenced on 11 January 2011 was three years, with effect from 21 April 2010. He was made eligible for consideration of parole after serving 18 months of imprisonment, namely, on 20 October 2011.

1. On 27 September 2011 a delegate of the respondent cancelled the visa under s 501(2) of the Act.

" The Minister may cancel a visa that has been granted to a person if:

(a) the Minister reasonably suspects that the person does not pass the character test; and

(b) the person does not satisfy the Minister that the person passes the character test."

The "character test" is defined in s 501(6) of the Act which specifies various alternative circumstances in which a person does not pass the "character test" within the meaning of that section. In the present case, a relevant circumstance is that specified in para (a) of s 501(6), namely, "the person has a substantial criminal record (as defined by subsection (7))". Section 501(7) specifies five alternative circumstances in which, for the purposes of the "character test", a person has a "substantial criminal record". In the present case, a relevant circumstance is that specified in para (c) of s 501(7), namely, "the person has been sentenced to a term of imprisonment of 12 months or more".

1. In reviewing the delegate's decision in this matter pursuant to s 500 of the Act, the Tribunal is required, by s 499(2A) of the Act, to comply with a direction given by the respondent under s 499(1) of the Act. The relevant direction, as presently in force, namely, Direction [no 41] - Visa refusal and cancellation under s 501 ("Direction [41]"), was given by the respondent on 3 June 2009 and commenced on 15 June 2009. Part A of Direction [41]:

" provides directions on the application of the character test ... set out in section 501(6) of the Act;"

" provides directions on the primary and other considerations that are relevant to determining whether it is appropriate in the specific circumstances of the case to exercise the discretion to refuse to grant or cancel the visa. ..."

Direction [41] will be relevantly referred to in more detail later in these reasons.

1. The evidence before the Tribunal comprised:
   • the "G Documents" (G1-G26, pp 1-160) lodged by the respondent (Exhibit R1);
   • Supplementary Documents (pp1-281) filed by the respondent (Exhibit R2);
   • statement of the applicant, dated 7 November 2011 (Exhibit A1);
   • document headed, "Intervention Recommendation : Sex Offenders Treatment Program (SOTP) Medium Intensity - Karnet Prison Farm", dated 7 November 2011, prepared by the applicant (Exhibit A2);
   • statement of the wife of the applicant, dated 16 November 2011 (Exhibit A3);
   • letter of support from Father David Shelton, Prison Chaplain, dated 2 August 2011 (Exhibit A4);
   • letter of support from Janarthanam Shankar, dated 22 November 2011 (Exhibit A5);
   • letter of support from Joyce Das, dated 23 November 2011 (Exhibit A6);
   • letter of support from Andrew Chong, New People Pastor, Perth Christian Life Centre, dated 10 October 2011 (Exhibit A7);
   • letters from officers of Karnet Prison Farm regarding courses undertaken by the applicant (Exhibit A8);
   • documents relating to the making of a Protection Order regarding the applicant's stepdaughter on 22 March 2011 (Exhibit A9);
   • letter from the Prisoners Review Board, dated 15 September 2011 (Exhibit A10);
   • Certificates of Participation relating to courses completed by the applicant (Exhibit A11);
   • letter from a former employer of the applicant, dated 28 July 2011 (Exhibit A12);
   • Confirmation of Enrolment in Certificate III in Financial Services (Accounts Clerical), Polytechnic West, dated 4 February 2010 (Exhibit A13);
   • report of Dr Peter McCarthy, dated 21 November 2011, and letter from Sparke Helmore, Lawyers to Dr McCarthy, dated 15 November 2011 (Exhibit R3); and
   • the oral evidence of the applicant, the applicant's wife, Father David Shelton, Janarthanam Shankar, and Joyce Das.

THE SENTENCING REMARKS OF STAVRIANOU DCJ ON 11 JANUARY 2011

1. When sentencing the applicant for the abovementioned offences on 11 January 2011, Stavrianou DCJ made the following remarks:

" ...

..., you've been convicted ... on your fast-track of (sic) guilty to nine charges on an indictment dated 19 November 2010. Each count on the indictment concerns your conduct in relation to ...

The charges on the indictment that you've pleaded guilty to are - counts 1 to 6 are - include five counts of indecent dealing and one count of attempted sexual penetration. Those offences, counts 1 to 6, are alleged to have occurred on one occasion, and it was on one occasion between January - 31 January 2010 and 21 April 2010.

The conduct in question - count 1 involved you showing images of naked adults engaged in sexual acts to the child. Count 2 involved you touching her breasts over her clothing. Count 3 involved you touching her breasts under her clothing. Count 4 involved you putting your hand on her - her hand on your exposed penis. Count 5 involved you attempting to penetrate her vagina with your penis. Count 6 involved you taking an indecent photograph of the child.

Counts 7 and 8 occurred on a further occasion between the 21st of - between 31 January 2010 and 21 April 2010. On that occasion, you touched her breasts over her clothing and - on two occasions; counts 7 and 8. Count 9 involved you touching her breasts over her clothing. And that offence is alleged to have occurred between 31 January 2010 and 21 April 2010.

The gravity and seriousness of the offending which you engaged in is reflected in the maximum penalty which I can impose in relation to the offending in question. The maximum which I can impose for the offending is a term of imprisonment of 10 years in relation to each of those nine offences. What you did has been outlined by the State prosecutor, M Cvetkoski, today, and the facts are accepted on your behalf by your counsel. I will adopt what the State prosecutor has said and formally incorporate his description of the facts into these remarks.

But in summary, in relation to the first incident, you were using your laptop computer and you called the victim over to look at the screen. She walked over and you showed her images of naked men and women engaged in sexual acts. The images were viewed by the victim for a short period time of approximately five seconds and she then walked away.

Later that night, you called her to your bedroom. You grabbed her from behind and you then touched her breasts over her clothing. You squeezed her breasts on that occasion, causing her pain. You then put your hands under her top and placed the palms of your hands onto her bare breasts and squeezed her breasts, again causing her pain. Those are the facts in relation to counts 2 and 3.

Count 4 occurred a few minutes later. You again called her into your room. You grabbed her hand and moved it towards your penis, which was exposed as you'd pulled your shorts down. She touched your penis at that - on that occasion. Count 5: you took off your shorts and underwear and laid on the victim. You attempted to insert your penis into her vagina but were not able to do so.

Count 6 involved you taking a single digital photograph of the complainant in a semi-naked state. In the image which you took, you could see - she could see her breasts were partly exposed. You did delete the image in question.

The second series of incidents concern counts 7 and 8. And on this occasion, as with the first occasion, you were the only adult at home with the complainant. In relation to count 7, you went into her bedroom and you placed the palms of your hands onto her breasts over her clothing. You did the same thing in relation to count 8 shortly thereafter, being later that night.

Count 9 is a further incident again within that same time period. You were using a laptop to speak to relatives overseas. You asked her to make you a cup of tea. She did so. You pulled her into the living room and used both of your hands to touch her breasts over her clothing.

You were in a relationship at the time with the mother of the complainant. When the offences occurred, the complainant was nearly 15. You were a mature and much older man. There are three separate occasions when offending occurred, as identified in the indictment. I've already outlined the nature of the sexual conduct which you engaged in with the complainant.

Your personal circumstances are that you are now aged 39 years, having been born in October 1971 in India. You've only been in Australia since 2009, and you had up until your arrest been working on a fulltime basis. You had also been in a relationship, as I've outlined, with the complainant's mother.

You have no prior criminal history either in Australia or in India. Your state of health is described in the pre-sentence report. And under the heading of 'Health' in the pre-sentence report, the following appears:

The psychological report states there is nothing to suggest a history of sexually deviant interest in children. However, information from DCP indicates a repetitive pattern of offending towards the current victim. Triggers for offending are identified as an inability to cope with stress, problems with intimate relationships and problems with self-awareness. Mr ... is recommended for assessment for the sex offenders treatment program, which is available in both a custodial and community setting.

I also note that in the pre-sentence report, the author notes the following:

The various sentencing options were canvassed with Mr .... And although there is nothing to suggest he would not be suitable for a community based disposition, he's aware an immediate term of imprisonment is the likely outcome of sentencing.

In his submissions to me, your counsel submitted that I should suspend any term of imprisonment which I determine should be imposed in this matter. The author of the psychological report notes in her summary and recommendations that - as follows:

The offending occurred on several occasions and involved force and persistence despite the victim's overt resistance. He took advantage of his position of power and trust with the victim. There is nothing to indicate that the offending would not have persisted or escalated had he not been caught, particularly as he claimed to have not understood that his behaviour was wrong at the time. Mr ... admitted to his sexual offences, however disputed the use of any force and denied the victim showed any resistance.

And I note the exchange which occurred in relation to the facts at the time when counsel addressed, namely, that what the State said about the use of force in relation to count 9 was not pursued by the State. Then I continue with the quote from the psychological report:

Notwithstanding this, he admitted that his behaviour was wrong in hindsight, demonstrated appropriate victim empathy, and stated that he wants help to address his problems. Factors of sexual disturbance were present at the time of his offending, including intimacy problems with his wife

− and again, just pausing there, counsel has referred to physical difficulties which you have −

inability to manage sexual frustration amidst a lack of sexual outlet at the time, and perceived sexual inadequacy.

And the author of the report notes that you're keen to address your behaviour. And the recommendation is made that you do participate in a sex offenders treatment program.

You have pleaded guilty on the fast-track system. And of course, that is to your credit and a mitigating factor for which you're entitled to a reduction in the sentence which would otherwise have been imposed upon you. Further, your plea of guilty facilitates the administration of justice. And importantly, you have also avoided the trauma which the complainant and her family would suffer as the result of a trial.

Any offence involving the sexual abuse of a child is serious. The child in this case was of tender years. The offending involved a variety of sexual conduct. You were a mature adult at the time and, as I've said, the complainant was nearly 15. You took advantage of the situation to deal with the complainant for your own gratification. You have, I accept, shown remorse, you've pleaded , and you have no prior record.

I must impose sentences commensurate with the seriousness of the offending. The seriousness of the offending must be determined by taking into account the statutory maximum penalties for the offences, the circumstances of the commission of the offences, aggravating factors and mitigating factors.

I must decide the kind of punishment which should be imposed in relation to you. The Sentencing Act sets out a range of options as to penalties which may be imposed. And I've considered all of the options available under the Sentencing Act. I've already described your antecedents, including the prior absence of sexual offending, and early admissions and pleas of guilty. I must have regard to the purpose of imposing punishment upon you; to punish you and to deter both you and others from committing offences in the future.

You abused the complainant for your own sexual gratification. There was clearly a disparity in age. The offending was persisted in. The offending involved a variety of conduct. The need for general deterrence is significant.

A term of imprisonment is to be imposed as a penalty of last resort, and I must not impose a term of imprisonment unless the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it.

In this matter, as I've said, I've considered all of the sentencing options and I conclude that in view of the seriousness of the offending, a term of imprisonment is the only appropriate disposition. The question is whether I require you to serve the term of imprisonment immediately or whether the term should be suspended, either conditionally or without condition.

In my view, in relation to the individual sentences, the appropriate dispositions are as follows.

In relation to count 1, a term of imprisonment of six months.

In relation to count 2, a term of imprisonment of four months.

In relation to count 3, a term of imprisonment of six months.

In relation to count 4, a term of imprisonment of eight months.

In relation to count 5, a term of imprisonment of 27 months.

In relation to count 6, a term of imprisonment of six months.

In relation to count 7, a term of imprisonment of six months.

In relation to count 8, a term of imprisonment of six months.

In relation to count 9, a term of imprisonment of six months.

As I've said, the sentences in relation to this matter require a consideration of issues of concurrence, cumulation and totality. In my view, the sentences can be broken down in this way. Count 5 should be the head sentence, and each of counts 1, 2, 3, 4 and 6 should be concurrent with the sentence which I have imposed in relation to count 5. The sentences in relation to counts 7 and 8 should be concurrent with each other.

In my view, having considered issues of totality, the appropriate disposition would be to make the sentence which I have imposed in relation to count 7 cumulative upon the sentence which I have imposed in relation to count 5. For the purposes of totality, I would reduce the sentence which I have imposed in relation to count 9 to a period of three months from a period of six months, which results in an overall term of 36 months, three years; 27 months in relation to count 5, six months in relation to count 7, three months in relation to count 9, resulting in an overall term of three years.

I have considered very carefully the submissions made in relation to whether I should suspend the term in relation to this matter. I have considered very carefully all of the circumstances and have undertaken the two-step process as I'm required to do pursuant to the authority of Dinsdale in particular. In the circumstances of this case, in my view, the seriousness of the offending is such that only a term of immediate imprisonment is the appropriate disposition in relation to the matter.

I do not accept that a suspended term of imprisonment adequately responds to the criminality involved in this matter. In my view, in all the circumstances of this case, a term of imprisonment of three years properly responds to the total criminality, and that is the term of imprisonment which I would impose.

I consider that you should be made eligible for parole, as is conceded by the State. And in the circumstances, you are made eligible for consideration for release upon parole after you've served one-half of the term of imprisonment, being a term of 18 months. That sentence can be backdated to the date upon which were taken into custody, of 21 April 2010. So the term of imprisonment which I would impose upon you is a term of three years backdated to commence on 27 (sic) April 2010. You are made eligible for release upon parole. Stand down." (G10, pp 68-73)

1. The applicant tendered in evidence his statement, dated 7 November 2011, and he confirmed that its contents are true and correct. That statement is as follows:

" I was born in India and English is my second language. I had some assistance in compiling this statement.

I am aware that technically I fail the character test as defined in subparagraph 501(6)(A) and subsection (7)(C). I can't alter that fact.

While I accept my sexual offending was inappropriate, I do not believe this constitutes a failure of significance that implies I would pose a further risk of failing the character test if allowed to remain in Australia.

Moreover I am currently completing the Sex Offenders Treatment Program (SOTP) Medium Intensity and have been informed that I am doing well in my strong goal for rehabilitation. I understand my offending behaviour and have the commitment to gain maximum benefit by continuing any rehabilitation program.

The Prison Immigration Reports and Individual Management Plan (IMP) states about my behaviour and attitude in general that [my] behaviour is described by both Unit Staff and his work Supervisor as excellent and a very polite person who is not a management problem. He is always respectful and courteous to staff and follows directions immediately and interacts well with his fellow workers.

I acknowledge the Subsection 501(6)(A) and S(7)(C), but I have proven that I am of good character during my incarceration and have been rehabilitating myself at the optimum level.

Therefore, I believe that this could show prejudice against me in regard to re-installation of my Visa, considering my capability of meaningful employment, good prospect of being a contributing member of the society. I am hard working and have passion for Australia.

I have been in touch with my previous employer, and he is willing to offer me a position after my release pending a vacancy. My work ethics are beyond reproach and I now have more reasons than most to prove I am capable of trust and responsibility.

The seriousness and nature of the conduct

I accept my offence and that the sentence imposed is considered a serious criminal act however, I do not see myself in any way a threat to the Australian community because I fully understand of the trauma I have caused and the fact that I am participating and benefiting from the sex offender treatment program (SOTP).

I fully understand the serious nature of my offence and now comprehend the impact my behaviour had on my step daughter which include breaching her trust in me and also in males, lowering her self esteem and causing her psychological problems. I am deeply regretful that my actions have caused such trauma.

I have taken full responsibility for events leading to a sexual conviction involving my step daughter, I also acknowledge I was extremely naïve in sexual matters and did not comprehend the gravity of my actions. The Delegate to The Minister also noted this in his Statement of Reasons for cancellation of Visa 'In relation to mitigating factor, I have noted the psychological assessment submitted to the Court which indicated [the applicant] suffers from an inadequacy of his genitalia and sexual competency' in page no 2, point no 12. As the mitigating factor is taken into account, it also shows the chance of re-offending is low and which has been already diminished through the SOTP participation.

I do no (sic) intend to minimise my offence but would argue strongly I do not pose a future risk to my step daughter, any other child or to the Australian Community because I am now aware of the pain I have caused and the treatment I am receiving through participation in the SOTP. I have strengthened my resolve to become an acceptable member of the community, and I am resolved that such actions will never again be repeated in the future.

I now acknowledge that my offence was morally and legally wrong. I have made a huge error in judgement. I wish to emphasise that I never knowingly set out to do wrong.

Risk that the Conduct may be repeated

I was assessed for future risk using the Static 99 internationally recognised risk assessment measure. I was considered a low risk of reoffending under this method.

Also the court psychological report states there is nothing to suggest a history of sexually deviant interest in children.

The delegate to the minister in his Statement of reasons for cancellation of visa in page no 2, point no 14 says that I pose a low to moderate risk of reoffending with risk situations being identified as contact with young females in a trusting type of relationship. In regard to this the court psychological report state that 'without treatment to address his behaviour, [the applicant] appears to present a low to moderate risk of reoffending in a sexual manner in the future.'

As recommended in the judicial sentencing statement, I am participating and benefiting from the medium intensity sex offenders treatment program (SOTP). Now my offending behaviour is being addressed and diminished through active participation and deep reflection of my offending behaviour.

When I finish the Treatment (SOTP) the risk of re offending will be further minimised.

I have been acknowledged by the SOTP facilitators that I am doing very well towards addressing my offending behaviour and promoting rehabilitation. The facilitators in the mid group interview commented that 'my careful and thoughtful insight shows my contribution and participation in the program'. Kindly see the enclosed copy of my statement of perception of SOTP. (Intervention Recommendation)

Court documents indicate I have demonstrated sufficient understanding of my offending behaviour and have the commitment to gain maximum benefit from any rehabilitation program. ...

My wife has remained extremely supportive of me despite the offence. In no way does she see the offence as trivial, however we share mutual love and respect and she is ready to help me in my continuing rehabilitation. In return, I have no intention of ever hurting her again as I have done so. I do have every intention of ensuring that my wife and the victim maintain a close and loving relationship, and I will avoid any contact with the victim.

Length of Residence in Australia

Although I have only been resident in Australia since March 2009, I have been married to my wife for 9 years and we are known to each other for 19 years. My wife and son are Permanent Residents of Australia.

I suggest my regular membership of the Perth Christian Life Centre is indicative of my positive attitude to community. A number of my referees have endorsed my positive involvement. Also the support letters from the Chaplains and the prison fellowship ministers (both Hakea Prison and Karnet prison farm) shows my positive involvement.

I have never returned to India because I have made a commitment to my new country, Australia. Australian citizenship remains a very important goal for me. My fervent wish is to be able to continue to build my family's life in this land of good prospects and reward for labour.

I am immensely grateful for the ongoing support and forgiveness of my family, my friends in the community and the church people, to ensure that I return to being a good and charitable person in the community. I definitely will not let their hopes and efforts diminish. ...

Best Interests of the Child

My son is already adjusted to the Australian education system since 2009, and will have difficulties in coping with schools in a different environment. ...

I am very much attached to my only son and he is very close to me for emotional support and paternal support. Any type of distance relationship with my child is undesirable and unbearable to me and will deprive him of the quality of relationship. If I am returned to India and my son comes with me then my wife will have to go through the same emotional sufferings of separation here in Australia.

My wife has forgiven me and is aware that I have no intention of causing any further distress to my step daughter.

The issue about my step daughter ... access to her biological mother and younger step brother will be an adult decision as she will be old enough by the year 2013. By the time this process comes to a conclusion she would be of legal age to decide her access and relationship issues with her mother, brother and myself and for that matter all her relatives in India.

My incarceration is up to April 2013 subject to parole consideration. Therefore my access to my stepdaughter and her access to me will not be feasible.

I have no objection if my step daughter wants to go back to her mother before she turns 18 years of age and I am happy and more than welcome if it happens and my wife also knows my thoughts and wish in this matter.

I wish to continue to support financially my step daughter through my wife and I will comply with any directive of the court, parole requirement or DCP to ensure that no breach of any condition is committed by me. ...

This is based on our plans to provide our son and my wife's daughter the best possible opportunity we can. We see a life together beyond this current crisis and have ongoing help from our church community and our friends who have indicated their pledge of support.

I have completed the further courses in Karnet Prison Farm.

Nevertheless I undertook every course made available this include:

1. Drum Beat Program - Voluntary Program, see attached copy of the certificate.

b) Life Skill Program - Voluntary Program, see attached copy of the certificate.

c) Carrier Development Program, see attached copy of the certificate.

d) Blood Borne Viruses - Compulsory Program, haven't got the certificate yet.

e) First Aid Course - haven't got the certificate yet.

f) Alternative to Violence (AVP-Basics) - Wait listed.

I am currently employed in the Manual Trades (Metal work shop) in Karnet Prison Farm.

Assisting in sign frame making and general workshop duties. I use the guillotine to cut metal sheets and I used the bender and magna bender to bend metal sheets. These are all manually operated machines.

I am currently undertaking a welding lessons in a certificate course in metal and engineering.

I have helped in the fabrication of a steel cage along with the installation of the gates utilising my welding skills.

Along with welding skills I am also gaining experience in the metal shop working alongside trades men.

I am also currently taking advantage of any skill development courses that will widen my choice of employment and options upon release.

My previous employer ..., is considering a possible position within its organisation for me as a trades assistant (TA). I am therefore trying to gain as much experience within the metal shop as possible which will also add to my chances of obtaining employment in other industries. See attached work reference of ....

Voluntary Work

I am very much interested in doing voluntary work. (eg Fire Fighter, First Aider etc). I have done a first aid course here in Karnet Prison.

Other International Obligations and Other Considerations

In India getting assistance for protection and ensuring my safety will be difficult since I will be an ordinary citizen with a criminal background, it is quite likely that the police itself may act against me in such matters.

Police protection is provided in very exceptional circumstances for high profile people in India. I have no chance of getting any assistance for my protection from any branches of the Indian Government and I can't afford hiring a private security. I will definitely be receiving prejudicial treatment from my relatives, society and the bureaucracy.

Cancellation of my visa and subsequent deportation to India will create extraordinary difficulties for me and my wife and son, as this will break up our family unit.

Returning to India will mean that I will lose all opportunities to be a decent provider for my wife and son, and that my son will grow up without his father's guidance. It is too emotional to contemplate the effect this dreadful loss will have on us. It will disrupt our married life of nine years.

If I am expelled from Australia this will cause in severe dislocation of my family and will create tremendous economic, social and emotional hardships.

At this stage of my returning to India would create a tremendous hardship economically, socially and vocationally. The social stigma attached to my misdemeanour is very high and I will be an outright reject among my relatives and in the social re-integration. I will be treated like an outcast, my family and our kids will be treated similarly and therefore our future will be prejudiced. Not just one but three lives will be severely disadvantaged and punished.

Since I am proficient in two languages Tamil and English. Tamil which is spoken mainly in one state and if I move from that state I will have communication problem and I do not speak Hindi or other South Indian languages.

If all my family returns to India then their rehabilitation in that society will be highly prejudiced in view of my criminal background. It will be impossible for my wife to leave her daughter here in Australia and return to India with me and our son, as the cultural and familial issues and repercussion will be devastating to us.

My step daughter who is under the State's care has been in contact with her mother and other members of the family and this relationship has been very useful for her growth and well being. If my family is expelled then this daughter will lose all the relationship she is getting from her mother.

I started learning a accounting course when I was in the community, still I try to continue the program from here in prison through external studies and it is also noted in my Individual Management Plan (IMP), regarding this I approached Mr ... who is a educational officer in Karnet Prison Farm and if the Tribunal want to speak with him, he would be pleased to do so.

I have enclosed the enrolment copy of Certificate III in Financial Services (Accounts Clerical).

I am always interested in learning new things. In the prison also I utilise all the opportunities to learn new skills and nevertheless I undertook every course made available, this include;

• Food safety and hygiene training.
• Work safely in the construction industry (White Card).
• Boom or bust mining industry information session.
• First aid course.
• I am currently undertaking welding lessons in a certificated course in metal and engineering.

Now is the time in which I've looked back with the knowledge of hindsight and I confidently can state I shall avoid the circumstances that were a cue to my offending behaviour.

This experience has given me time to clearly and wholly think about and to reflect upon my offending behaviour. This has guided me to recorrect my direction and to prioritise my family affairs.

I am ashamed of my offending behaviour and sincerely regret hurting the people I love. I have been participating fully in treatment options to ensure that such conduct will never again occur. I am currently completing a program (SOTP - Sex Offenders Treatment Program) and have been informed that I am doing very well in my strong goal of rehabilitation. This includes mapping out potential pitfalls and developing awareness of the devastating consequences of further distorted thinking. Above all, I have affected my family and my victim. I can only assist their healing by becoming a better person and a substantive role-model for my son.

I was not advised by any authority or advisors prior to my offence that my conduct may affect the status in my visa or the subsequent cancellation of visa and deportation procedures.

I truly believe in God and follow Christianity. I read the Bible and meditate on the passages and I try to apply the teachings of the Bible to my everyday life. I repent for my sin and dedicate my life to God's teachings. I am now a born-again Christian.

I regularly attend the church chapel services, prison fellowship meetings and the Bible studies that is run within the prison.

In view of the aforementioned I plead The Tribunal to consider the rehabilitation that I have gained, the general behaviour and good character I am maintaining during my incarceration and in my plight to continue my stay here in Australia and save the destruction of my family unit. I assure you that when I am released I will make every effort to be a good Australian citizen and contribute my skills to development of the community." (sic) (Exhibit A1)

1. The applicant also tendered in evidence a document, dated 7 November 2011, prepared by him which deals with his participation in the Sex Offenders Treatment Program (Medium Intensity) at Karnet Prison Farm. The contents of that document are as follows:

" ...

Sex Offenders Treatment Program (SOTP) Medium Intensity - Karnet Prison Farm

I commenced this program on 14 June 2011.

To date I have learnt the following from the program.

I now realise how my low self esteem had affected my opinion of women and my views on sex activities. My low self esteem was a major reason for my offending. By changing my thoughts, beliefs, attitudes and actions, I can improve my level of self esteem.

Initially, I found it very hard to discuss my personal affairs in the group. But as time has gone on and I realise that I am with a supportive group of people who have similar problems to me, I have been able to open up. When I disclosed my offences in the group, I felt relieved.

From examining my Life History, I now realise that I wanted to dominate and control my family as is the norm in India. My compulsion to dominate and control caused me to commit my offences.

We examined the various types of coping that people use. I had used the emotional and avoidance coping methods. From the module, I now understand that the task focused coping method is the best to use in the long term.

In examining the Background Factors, I now realise that I had low self esteem in sexual relations with my wife. Inability to cope with stress, problems with intimate relationships and domineering attitude on my family. Now I realise that how my core beliefs had led me to the offending behaviour. (eg I deserve respect, worthless feelings etc).

I changed my attitudes, beliefs and thoughts. Every one deserve respect in the family. Men and women have equal values.

With regard to the Consent to Sex Section, I now aware that the age of consent is 18 years and that children below 18 do not have the emotional maturity to consent to sexual activities.

With regard to Victim Empathy, in this module I was asked to create a letter written to me from my victim. I had written that letter (in that letter I showed victim empathy and remorse) and it had been read in the group and the (SOTP) facilitators commented on my empathy letter that I had jumped into it and I had done it well.

In examining the Attachment Styles in relationships the program facilitator told about four types of attachment in relationships. They are Secure, Dismissive, Fearful and Pre-occupied types. When I examined my attachment style in my relationship, I came under the pre-occupied one and this type of people always have negative thoughts in their minds (I'm not ok and you're ok', low self esteem, fluctuating intimacy, wants acceptance from others and constantly seeks approval of others and dependent on partner). The best one in the four types of attachments is Secure type in which positive thoughts and healthy relationship is found (I'm ok and you're ok', high self esteem, higher sociability, high intimacy, comfortable with relationships and mutual support and trust).

In examining the Immediate Factors for my offending behaviour, I now realise how my cultural values, false beliefs and my inner feelings and inadequacy of my sexual competency influenced to my offending, which include She (Victim) and would not tell any one because of the cultural, as she did not resist I thought she was ok with me, she doesn't know I am unsure of myself - I can look good, and I am looking for more experience etc.

When we discussed goals and plan in our life, I expressed the strong and realistic goals in my life. I have Short Term and Long Term Goals.

My short term goal is to get a decent job in the Refrigerations and Air conditioning Industry. To achieve this I have to get the (Ticket) licence to work in this field. I will do the licensing course in the TAFE to get my R&AC ticket.

Moreover my previous employer ... has a 'Mechanical Services' section, in which they are doing the air conditioners repair, services and installation and maintenance works. So there is a possibility of getting air conditioning mechanic job within their organization.

My long term goal is first and my important air is to own a home. For which I have to save money for the deposit amount. When I fulfil my short term goal, I will start working towards my long term goals.

Then my ultimate goal is to run my own business, which is in Refrigeration and Air conditioning industry. For which I have to work towards the business investment money. It will take some time to make the contribution money (capital amount).

This program helped me to 'understand the serious nature of my offence and now comprehend the impact my behaviour had on my step daughter which include breaching her trust in me and also in males, lowering her self esteem and causing her psychological problems. I am deeply regretful that my actions have caused such trauma'.

Also the program helped me to identify myself and to recognise the risk factors and how to cope with it and to avoid reoffending. Now I can recognise and challenge precarious thoughts and interpretations of a situation that influence my feelings and reactions. I have learnt lapse and relapse prevention strategies.

Hence I firmly believe that I am of no risk to the community in the future whatsoever, having been corrected for my appalling errors in judgement.

The program has only 4 weeks to go and I know that I will learnt considerably more about myself and improve myself in the process of rehabilitation." (sic) (Exhibit A2)

1. In cross-examination the applicant gave evidence to the following effect:
   • his stepdaughter was "nearly 15" at the time of his offences against her;
   • he never used force or violence against her - it was "all consensual";
   • she did not object to what he was doing - he thought that she was interested - he asked her and she let him do it;
   • he "tapped" her "on the bottom" in India in 2008 before they came to Australia;
   • he did not tell the psychologist about "what happened in India" ─ he answered all her questions but she did not ask him about that.
2. The applicant was asked further questions about his conduct towards his stepdaughter in India but he consistently refused to answer those questions because he did not accept that his previous conduct was relevant. He said that he was "ready to speak about" the charges he pleaded guilty to, but "not about what happened in India".
3. As regards the offences he committed in Australia, he gave further evidence as follows:
   • he first spoke to his wife about it when he was arrested on 20 April 2010;
   • his wife was screaming and crying because they were taking her daughter way, and he wanted to pacify her;
   • he thought that, because it was "consensual", it was "not a big thing";
   • he liked to watch pornography but he was not particular about watching it every week or every weekend;
   • he watched pornography in India but not often because of the expense;
   • as regards showing his stepdaughter pornography, he thought that she would be interested because she had told him that she was aware of these things from school and she had told him about a particular website;
   • he did not tell the psychologist about the pornography because she did not ask;
   • when he touched his stepdaughter she did not say anything and he took it as no resistance;
   • sometimes she said "no" but a few days later when he asked her, she agreed or showed no resistance;
   • she only said "no" on specific occasions, not "no" to it happening generally - if she had shown resistance, he would have stopped doing it;
   • as he told the psychologist, his offences against his stepdaughter started because he misunderstood a "look" from her.
4. The applicant's evidence concluded as follows:
   • if he stays in Australia, he does not want to live near his stepdaughter if it would affect her;
   • if he returns to India alone, his young son will miss his guidance;
   • if his wife and son return to India with him, her relatives will ask questions about why her daughter is not with them;
   • because her daughter will remain in Australia, he would not expect his wife to go to India with him, but they have not yet reached a final decision about this;
   • he knows that his stepdaughter does not want to see him again;
   • his wife is totally dependent on him.

1. The applicant's wife confirmed that she had made a statement, dated 16 November 2011, and that she had previously written a letter of support for the applicant, dated 9 June 2011 (G18). She also confirmed that she had signed a record of interview, dated 21 April 2010 (Exhibit R2, pp 130-137).
2. The contents of the letter, dated 9 June 2011, are as follows:

" I am wife of ... it is 8 years since I have been married him but I known him long before (10 yrs) I marry him. His behaviour and character make me impress to love him. He is a magnanimous and generous and pious man, that's why he accept my love and agree to marry me along with my 8 years old daughter. He loved very much me and my daughter and he is a good breadwinner and very caring too. He always think about his stepdaughter and he discuss with me that we have to give a good education moral thoughts and gleeful life to her.

After my son ... birth I have not any changes in his fond, he treat them both with equal affection and love, but his bad sake and the circumstances make a mistake. Even I could not believe it how he distracts from his father position. Anyhow I realized that he felt guilty and repentance and he had the repercussion in the prison for the past few months without seeing his son and me. I don't want to punish him more by neglect him because I have to think about how many good thinks he did to us and how work hard to his family and his children and even now also he think about his step daughter future life and education.

I can't found any avenge when he talk to me and I know he felt disgraceful about himself and he is ready to do the atonement to his step daughter by supporting her education and her bright future.

For the past 13 months me and my son face lot of problems and hurdle without my husband. I can't get a job because I am not good enough in language and I don't have my driving licence too.

My son loved his father very much and missed him lot and suffered a lot. I can't fulfil my son's desire and dreams without his father's presence and just think about a 6 years old kid without his father hug, kiss and fond. It's very hard to survive for my son and me without my husband presence.

So please allow him to stay with us and please save my family to be together. ..." (sic)

1. The contents of the statement, dated 16 November 2011, are as follows:

" When I heard the outcome from the Immigration Department about my husband's ... visa cancellation decision I was shocked, sad and devastated.

He came to Australia with our family full of hope and enthusiasm to better out life and provide a good and secure future for our family.

During his enculturation process and assimilating himself and our family with Australian life he committed the misdemeanour with serious consequences affecting all of us. As a result of his wrongdoing he was incarcerated and he is presently imprisoned as part of his punishment.

I have already stated the positive attitude and general behaviour of my husband and I have forgiven him and do not want to punish him any more.

I do not mean to minimise his transgression but would argue strongly that he has strong family values and he will focus on achieving his goals. I am pleased to help him in his continuing rehabilitation.

I am aware that he has no intention of causing any further discomfort to my daughter. Instead he wishes to continue to support financially my daughter through me and he will comply with all orders of the authorities in relation to future contact with my daughter.

Upon release my husband is willing to stay away from me in order to facilitate my daughter to have a close and loving relationship with me.

My son has started his school education here in Australia and is in year-1 at a primary school. He has adapted the Australian education system, and tearing him away from it would create enormous difficulties for him and his future.

He is participating in the sex offenders treatment progam and now his offending behaviour is being addressed and diminished through active participation and deep reflection of his offending behaviour in this therapeutic program. He is deeply remorseful for his actions.

Whenever he speaks to me by phone or during the prison visits he says that the treatment program helps him a lot. He also says that the program facilitators comments on him that he is doing well in the program.

I have full confidence that he will be a good role model to our son. He will provide all the things we need as had been doing it in the past family life. I know he is a hard worker, and wants us to be comfortable in life and well cared.

My husband has disclosed and shared all personal matters, secrets and inner feelings about him with me and he wants to be a honest, faithful, open, loving and caring husband. Now we could see a new dimension in our relationship after this experience and I look forward to spending rest of my life with him.

My husband and I share mutual love and respect and want to remain in Australia as a valuable family unit. I kindly request you not to break up my family. This break up of my family will be devastating to me and our children.

He is willing to undergo any other treatment program to facilitate his integrity with local community and minimise the risk to the community.

He has dedicated his life to our family and to God's teachings and now he has become a born again Christian. He attends chapel service, prison fellowship meeting and the bible studies in the prison and wants to continue the religious activities in community too.

...

I trust you will be able to help us by reaching a favourable decision.

..." (sic) (Exhibit A3)

1. The record of interview, dated 21 April 2010, states (inter alia) that:
   • in 2008 in India her daughter, who was then 13 years old, told her that the applicant had "started to touch her buttocks";
   • the applicant "made a vow that he would never touch [her daughter] again ...";
   • in mid March 2010 she asked her daughter if anything was wrong because she was worried that the applicant "might be touching her again like the time in India";
   • she told her daughter that if the applicant "was doing something it could cause a big problem in Australia";
   • her daughter said that "nothing was happening";
   • at about 4.00 pm on 20 April 2010 she received a telephone call from the Department for Child Protection who told her that they would not let her daughter come home because she had told them that the applicant had been touching her;
   • when the applicant came home just after that telephone call, she started shouting at him, asking him what he had done to her daughter;
   • the applicant "also became upset and said words to the effect of 'It's not what you think, it's not a big thing that has happened'".
2. In cross-examination the applicant's wife gave evidence to the following effect:
   • she is aware that there were nine charges against the applicant but she is "not clear" about all the charges;
   • she is aware that the charges involved inappropriate touching of her daughter and attempting to have sex with her daughter;
   • although the words "misdemeanour" and "transgressions" are in her statement, they are "someone else's words", not her words;
   • she is upset about what the applicant has done;
   • she never asked her daughter to drop the allegations;
   • she has forgiven the applicant;
   • when the applicant is released from prison, she will not allow him to live with her if she has her daughter, but if she does not have her daughter, she will allow him back;
   • from the beginning, the Department for Child Protection did not want to release the girl to her;
   • she did not speak to the applicant for nine months, but the Department still did not allow her daughter to return to her;
   • her lawyer told her that she can have her husband or her daughter, but not both;
   • she said she wanted her daughter and did not speak to her husband for nine months, but the Department did not give her girl back;
   • her son is now "having problems" and she wants the applicant back because of her son;
   • if the Department had given her girl back to her, she would not have wanted to live with the applicant;
   • she is finding it difficult living on her own with her son;
   • she is trying to improve her English and her chances of getting work;
   • she now receives money from Centrelink;
   • if her daughter wants to come back and live with her, she will leave the applicant;
   • if the applicant returns to India, she and her son will not go with him - she cannot leave her girl here;
   • she could do some work and support herself here, and maybe her daughter would then live with her.

THE EVIDENCE OF THE OTHER WITNESSES CALLED BY THE APPLICANT

1. Father Shelton confirmed that he had written a letter of support for the applicant, dated 2 August 2011, as follows:

" As full time Chaplain in the prisons I have known [the applicant] since April 2010 when he first came to prison.

During all this time I have found him to be a very open and honest man. He has used his time in prison to try and improve himself in every way. He has done what was asked of him to address his offending behaviour.

He has never presented any problem in the prison and his attitude to staff and prisoners is very satisfactory. He is always very respectful and courteous and interacts well with fellow prisoners. He also attends Church Services regularly.

I am confident that [he] would prove himself to be a reliable and responsible citizen upon his release from prison. He wants to rebuild his life with his family and I believe he should be given every opportunity to re-establish himself in the community and have a fruitful and successful life in the future. I wish [him] every possible success and happiness." (Exhibit A4)

1. Father Shelton said that he was aware that the applicant had committed sexual offences against his stepdaughter but the applicant had not told him that he tried to have sex with his stepdaughter.
2. He said that it would be very difficult for the applicant to go back to India and have to explain why his family was not with him. He added that, for their benefit, they should stay in Australia.
3. He said that the applicant has tried to rehabilitate himself and that he feels very positive about his rehabilitation.

1. Mr Shankar confirmed that he had written two letters of support for the applicant.
2. Mr Shankar's first letter, dated 15 June 2011, states as follows:

" I have known [the applicant] for 1 year 2 months when I came to Australia he did a lot of help and support to me and he always follow virtue standard life and he intend to be generous to everyone those who need it. He is a hard worker and he always think about his family and he want to be a part for his son's bright future and education and his gleeful life.

For his bad sake his divert from the span what he followed and he want to do reparation for he did and he intend make his step daughter life better for a good future and education and I have to be bestowed for him and his family.

I can do my best as much as possible for him and his family. ..." (sic) (G24, p 145)

1. Mr Shankar's second letter, dated 22 November 2011, states as follows:

" I have already written in support of [the applicant] and I am one of his family friends. When I came to Australia he did a lot of help and support to me. He is a respectful, friendly and caring man and I consider it a privilege to have known him.

When I heard about [his] visa cancellation it make me felt sad and definitely devastated the family happiness and brake down the kind's dreams.

[He] has been contacting me by phone and I have visited him in Hakea Prison and in Karnet Prison Farm as well.

Whenever he speaks to me by phone or during the prison visits he says that the treatment program helps him a lot. He also says that the program facilitators comments on him that he is doing well in the program.

I have full confidence that he will follow the moral standard life and give full support to his family and I intend to help for his rehabilitation program.

I can do my best as much as possible for him and his family. I can also help him to get a job and I am aware that [he] is doing a welding lesson in Karnet Prison Farm I will try to get him a welder's position as I am working in the same field and I would assist him by means of transportation in the initial stages when he is release from the prison. ..." (sic) (Exhibit A5)

1. Mr Shankar said that he first met the applicant when he came to Australia in 2010 and that he then lived next door to him. He said that he was aware of the offences committed by the applicant but that he did not know "all the details".

1. Mrs Das confirmed that she had written two letters of support for the applicant.
2. Mrs Das' first letter, dated 6 June 2011, states as follows:

" I have known [the applicant] since 2 years and would like to support him the best possible way I can. I find him to be a loving father and an excellent family man.

..." (G24, p 146)

1. Mrs Das' second letter, dated 23 November 2011, states as follows:

" I have already written in support of [the applicant], whom I have known as ... during his membership in Perth Christian Life Centre (PCLC), when he was in the community. He is a respectful, friendly and caring man and I consider it a privilege to have known him. He would always ask with genuine interest and affection how I was and how my family were.

[He] has been contacting me by phone every weekend. I have visited him in Hakea Prison and in Karnet Prison Farm as well.

Whenever he speaks to me by phone, he shares the readings of the Bible. He also told me that he attends the chapel services, prison fellowship meetings and the Bible studies that is run within the prison. I will help him to do the religious activities in the community also.

[He] has been a very loving and supportive husband to his wife and this becomes apparent when I talk to his wife ... and as she sees a life with [him] beyond this current crisis. This approach from his wife who remains lovingly supportive and forgiving of her husband, makes it very clear that [he] has also been a loving, caring and supportive Father and decent provider to his wife's daughter and to their son.

I am aware that [he] has expressed remorse, empathy and deep shame for his offences and he has good support from his wife, which will assist him greatly as he re-enters the community.

It is my understanding that his offending behaviour is being addressed by the completion of a Sex Offender Treatment Program at Karnet Prison Farm.

I am happy to help him to get counselling or any further rehabilitation program when he is released in the community and he is willing to do it at his own expense.

If he returned to India, it would be absolute disaster for his wife and son, and the family unit will be shattered and damaged.

I help his wife and son to attend church services. His wife is a dedicated Christian. Their family as a whole want to lead a religious life.

I believe [he] is a hard working person and intends to be a contributing member of the society.

..." (Exhibit A6)

1. Mrs Das said that she did not know the details of the offences committed by the applicant but she understood that they had something to do with his step-daughter and that he had tried to molest her.

ADDITIONAL MATERIAL RELIED UPON BY THE APPLICANT

1. The applicant tendered in evidence additional documents, including letters of support, Certificates of Completion of various courses, confirmation of enrolment in other courses, a letter from a former employer, and a letter from a prison psychologist confirming that he is presently being treated for stress and anxiety (Exhibits A7, A8, A11-A13).
2. The Tribunal notes that the G Documents include various additional Certificates of Completion and Statements of Attainment and various additional letters of support (G17, G19-G24).
3. The Tribunal further notes that the G Documents include various prison reports and individual management plans which refer (inter alia) to the applicant's good behaviour and program participation in prison (G12, pp 99−101, G15).

THE PRE-SENTENCE PSYCHOLOGICAL REPORT OF DANIELA BARBUZZA

1. Ms Barbuzza's report, dated 1 December 2010, is included in the G Documents (G26, pp 155-160).
2. Ms Barbuzza's report, after setting out background information, continues as follows:

" ...

Current Offending

Mr ... has currently been convicted of (Attempted) Knowingly Sexually Penetrated a Child who was a Lineal Relative (x1), Indecent Dealings with a Child who is a Lineal/Defacto relative (x7), and Indecently Recorded Child who was a Lineal relative (x1). The offences were committed against his 14 year old stepdaughter between February and April 2010 and involved him attempting to have sexual intercourse with her; placing his hands on her breasts from behind and squeezing them which caused her pain; and putting the victim's hand on his exposed penis which she did but quickly pulled her hand away. Mr ... also took a photograph of her semi naked in her bedroom after she had showered and deleted the photograph once the victim had viewed it. Further, Mr ... called the victim to look at a computer screen that showed images of males and females engaged in sexual acts. Some of the offences involved Mr ... pushing the victim onto the bed and removing her shorts and underwear after calling her into his bedroom, and other incidents took place when he approached her in various rooms of the house, and included him asking her to make him a cup of tea and then pulling her into the living room to offend. The victim's response to the offences included pushing him away, kicking his legs, and scratching his hands. On at least one occasion, the victim was able to depart the room when another sibling attended the door and distracted him. The victim's brother and/or mother were home when at least some of the offending took place. Mr ... declined to make admissions to the police.

During the current interview, Mr ... admitted to current offences for which he has been convicted however denied having used any force against the victim, rather stated that there were no indications of resistance displayed by the victim. Mr ... repeatedly stated that he did not know why he offended but knew that it was 'wrong' and that he had made a 'big blunder' and wanted to 'correct' himself. Mr ... initially insisted that he did not want to discuss the offences during interview but eventually discussed the offending in more detail when it was explained to him that the interviewer needed to clarify his stance in relation to the offences. Mr ... then become more compliant and reported to have pleaded guilty to most of the offences but not to the charge of Deprivation of Liberty that he continues to deny, whereby it was alleged that he pinned the victim to the bed so that she was unable to break free. This charge was apparently dismissed following discussions between his lawyer and the Department of Public Prosecutions. Mr ... reported his current offences to have commenced shortly after he mistakenly interpreted a 'look' from the victim. He reported to have touched her neck to monitor her temperature level while she was sick and stated that he gave her a 'look' when he later took her to the doctor at her mother's request.

He reported that 'everything started from there' and although he denied planning the offences, he admitted after significant probing, that he had thought about the victim in a sexual way since then and in between offences. He denied having masturbated when thinking of her and denied having noticed any physical development that may have attracted him to her.

Mr ... insisted that he was 'not aware' of what he was doing and when challenged about this, he stated that he did not want to discuss the offences but admitted that his behaviour was 'wrong' and that there was 'something wrong with [him] for trying to have sex with an underage girl'. When specifically asked, he admitted that he breached the victim's trust by offending against her, given his role as her stepfather. He stated that she will now experience significant consequences from his actions and he expressed regret and remorse accordingly. He stated that he wants to donate two thirds of his future wages to pay for things that she may desire and that will improve her life, such as good schooling and/or dancing lessons. Mr ... emphasised that he did not make excuses for his behaviour but when directly asked about contributing factors, he stated that he had been arguing with his wife about his stepdaughter around that time, which resulted in less sex between them. Mr ... also revealed feeling insecure about his penis size, and he acknowledges that he should have discussed this with his wife and/or sought professional help at the time, as he feels this may have contributed to his offending. He stated that he has since sought help to 'correct' himself whilst in prison by asking about treatment programmes. Mr ... stepdaughter has apparently been removed from her mother and is currently in foster care as a result of the offending.

Presentation

Mr ... presented as an Indian man with a moustache who was of small stature and appeared nervous and cautious when entering the interview room. He struggled with some words in the English language and asked for clarification if he did not understand what was being asked of him. With clarification and/or re-wording of questions, he seemed to comprehend the questions and responded appropriately. Mr ... was unable to complete the psychometric testing procedure however as he was not familiar with many of the words used in the test items. Mr ... became teary when discussing his offending and the impact on the victim, as well as his struggle through life due to his sense of inadequacy because of his penis size. Mr ... became particularly emotional towards the end of the interview when he spoke of his responsibility to provide a good life for his stepdaughter, not damage her (and

affect his wife) in the way that he has by offending against her.

...

Risk Issues

Static 99

The Static 99 is an internationally recognised risk assessment measure that combines 10 static (unchanging) risk factors that have been shown to be associated with increased risk of re-offence and has been used to estimate Mr ... risk of sexual re-offending. Mr ... Static 99 score of 0 places him in the Low risk category. Based on a sample of sex offenders from Canada and the UK upon which the Static 99 was developed, this suggests that Mr ... has a 1 in 20 chance of sexual re-offending within a 5 year period.

RSVP

The Risk for Sexual Violence Protocol (RSVP) was also used to assess Mr ... risk of re-offending in a sexual manner. This tool involves structured professional judgment to consider the factors that may contribute to his risk of re-offending in the future. In Mr ... case, there is evidence of the presence of some of these factors, namely Chronicity, Diversity, and Escalation of Sexual Violence; Psychological or Physical Coercion; and Extreme Minimisation or Denial of Sexual Violence.

There is no evidence of other risk factors often associated with risk of sexual re-offending, including Psychopathic Personality Disorder; Major Mental Illness; Violent Ideation; Problems with Employment or Substance Abuse; Problems Resulting from Child Abuse; Non-Sexual Criminality; Problems with Non-Intimate Relationships; Problems with Treatment; Problems with Supervision; Problems with Planning; or Attitudes that Support or Condone Sexual Violence.

There is possible or partial evidence that Mr ... has other risk factors that are often associated with risk of sexual re-offending, such as Sexual Deviance. With the exception of his current offending, there is nothing to suggest a history of having a sexually deviant interest in children. There is also some suggestion of him having Problems with Stress or Coping, as he does not appear to have ever openly discussed his feelings of sexual inadequacy with others; Problems with Intimate Relationships, as suggested by his marital problems that seem to have stemmed from a lack of effective communication and understanding; and Problems with Self-Awareness to the extent that he claims to have not been aware of what he was doing when he offended although this seems unlikely as the offences appear to have involved at least some planning.

When factors on the RSVP are taken into consideration and without treatment to address his behaviour, Mr ... appears to present a low to moderate risk of re-offending in a sexual manner in the future. His risk of re-offending is considered to be further increased in the event that he has unsupervised contact with females similar in age to his current victim and particularly if he has established a relationship of trust with the child and/or their significant others.

Opinion

Mr ... appears to have been raised in a caring, loving, environment but to have experienced financial hardship as a child, and as an adult he seems to have strived to achieve financial security. He appears to have been a hardworking law abiding citizen who was committed to raising money to support his immediate and extended family in Australia and India, respectively, and attempted to be a 'good role model' for his stepdaughter and son by not engaging in alcohol or substance abuse of any kind, and providing for the family. Mr ... sexual development appeared immature. He seems to have had a naïve understanding of sex and sexual anatomy, as evidenced in his use of terminology such as 'the white stuff that comes out' when referring to semen. This immature conceptualising seems to have impacted on his anxiety around sex and genitalia. He appears to have married only reluctantly due to obsessiveness and shame about his penis size, a sensitivity that developed at the age of 14 or 15 when he first became aware of his sexuality and compared his size to that of actors depicted in pornographic material. Mr ... appears to have placed significant emphasis on this and allowed it to shape his future in regards to forming relationships with women, in case he was expected to engage sexually with them. Mr ... shame and embarrassment about this seems to have impacted on his sexual relationship with his wife, as he made the effort to take all possible measures to prevent his wife form viewing his penis; particularly when it was not erect. Mr ... experienced feelings of inadequacy when engaging with his wife sexually and sought constant reassurance from her that his performance was satisfactory. This sense of sexual inadequacy and fear of being judged about his sexual performance seems to have contributed to his sexual offending behaviour as he chose a victim who was likely to be inexperienced sexually hence less likely to judge him on the size of his penis and/or his sexual performance. Mr ... admitted that this may have contributed to his offending albeit insisted that he was 'not aware' of what he was doing at the time of the offending.

Mr ... denied having planned the offending in any way however it is noted that he did not offend while others were present and often created opportunities to be alone with the victim by inviting her into his bedroom, or forcing her to be in a room alone with him. His relationship of trust with the victim and her mother allowed him the opportunity to offend. He admitted to thinking about the victim in a sexual way in between offences, which is likely to have maintained his sexual offending behaviour however he was reluctant to discuss this in detail, seemingly due to embarrassment and shame, which was evident throughout the entire interview. There is nothing to indicate that the offending would have ceased or that it would not have escalated in the event of it not being detected. The force used in the offending is of significant concern, as is Mr ... persisting with the behaviour on several occasions despite the victim's overt resistance. Although Mr ... admitted that his behaviour was 'wrong', he stated that he victim did not resist his advances at any point and he used this as justification to continue offending at the time. He now acknowledges that he impacted on the victim's life for the purpose of getting his needs met at the time, and feels particularly responsible as he breached the victim's trust significantly, particularly given his role as her stepfather.

There is nothing to suggest that Mr ... has an ongoing sexually deviant interest in children, rather he seems to have offended against the current victim to have his sexual needs met without the judgment that he was concerned about when engaging in sexual relations with adults, namely his wife. There is also some indication that Mr ... did not get along very well with his stepdaughter and he seemed to resent her noncompliant attitude towards him, which he felt was initially supported by her grandmother (who is now deceased), and her mother. This appeared to have resulted in tension in the marital relationship, which in turn led to a lack of intimacy and sexual relations with his wife. An impression gained was that in assaulting his stepdaughter, Mr ... asserted some power and control over her, which he had been unable to achieve in his parental role, given that his attempts were strongly resisted by the victim, her mother, and her grandmother.

Given all of the above, it is recommended that Mr ... participates in a sex offender treatment programme to address his sexual offending behaviour and to develop relapse prevention strategies. He is likely to benefit from treatment as he seems motivated to change his behaviour, he feels regret and remorse in relation to his current offending, and he expressed an appropriate understanding of victim empathy issues. He may need assistance with any written components of a treatment programme as he seems to struggle with the written English language.

Summary and Recommendations

Mr ... is a 39 year old Indian man who has committed sexual offences against his 14 year old stepdaughter that involved attempted sexual penetration, squeezing her breasts whereby the victim felt pain, showing her pornography, and taking a semi naked photograph of her. The offending occurred on several occasions and involved force and persistence despite the victim's overt resistance. He took advantage of his position of power and trust with the victim. There is nothing to indicate that the offending would have not persisted or escalated had he not been caught, particularly as he claimed to have not understood that his behaviour was 'wrong' at the time. Mr ... admitted to his sexual offences however disputed the use of any force and denied that the victim showed any resistance. Notwithstanding this, he admitted that his behaviour was 'wrong' in hindsight, demonstrated appropriate victim empathy, and stated that he wants help to address his problems. Factors of sexual disturbance were present at the time of his offending, including intimacy problems with his wife; inability to manage sexual frustration amidst a lack of sexual outlet at the time; and perceived sexual inadequacy from a longstanding shame about his genitalia. There was also anger and resentment about being undermined in his parenting role. There was the impression of immature psycho-sexual development, and perhaps the victim's age matched his level of sexual security.

Mr ... is keen to seek help to address his behaviour and it is recommended that he participates in a sex offender treatment programme offered by the Department of Corrective Services. Mr ... is considered to present a low to moderate risk of re-offending in a similar manner in the future, with particular risk situations being unsupervised contact with females similar in age to his current victim, and if he has established a relationship of trust with the children and/or their significant others."

1. The respondent tendered in evidence a report of Dr McCarthy, Consultant Psychiatrist, dated 21 November 2011 (Exhibit R3). Dr McCarthy was requested by the respondent's solicitors to prepare a report dealing with the nature and extent of harm that may be caused to a girl aged approximately 14 years if the applicant were to re-offend in a similar manner. Dr McCarthy did not examine the applicant and he prepared his report on the basis of relevant medical literature and his own knowledge and experience. It is unnecessary to refer in detail to the contents of Dr McCarthy's report in these reasons.

1. The Supplementary Documents tendered in evidence by the respondent (Exhibit R2) include documents produced under summons by the following bodies:
   • Director of Public Prosecutions (WA);
   • Department of Corrective Services (WA); and
   • Department for Child Protection (WA).

1. By reason of the fact that the applicant was, on 11 January 2011, sentenced to the various terms of imprisonment set out in paragraph 5 above, the Tribunal finds that the applicant has a "substantial criminal record", as defined in s 501(7) of the Act, and that, by reason of s 501(6)(a) of the Act, he does not pass the "character test".
2. It follows from that finding that the discretionary power to cancel the visa, pursuant to s 501(2) of the Act, is enlivened in this case.

Should the discretionary power to cancel the visa be exercised in this case?

1. Part B of Direction [41] comprises paragraphs 8 - 11. Paragraph 9 states:

" (1) ... decision-makers must take into account the primary considerations in every case. The other considerations (defined in paragraph 11) should be taken into account where relevant.

Note: The primary considerations are set out in paragraph 10 of this Direction. The other considerations are set out in paragraph 11.

(2) Decision-makers should only take into account directly relevant considerations.

..."

THE PRIMARY CONSIDERATIONS

1. Paragraph 10 sets out the primary considerations as follows:

(1) In deciding whether to refuse to grant a person a visa or cancel a person's visa, the following (the primary considerations) are to be considered:

(a) the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;

(b) whether the person was a minor when they began living in Australia;

(c) the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and

(d) relevant international obligations, including but not limited to:

(i) the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and

(ii) the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)."

Protection of the Australian community

" 10.1 Protection of the Australian community

(1) Due consideration is to be given to the Government's objectives set out in Part 1, paragraph 5 of this Direction.

(2) The factors relevant to assessing the level of risk of harm to the community of the person's entry or continued stay include:

(a) the seriousness and nature of the relevant conduct; and

(b) the risk that the conduct may be repeated."

1. The objectives set out in Part 1, para 5 are as follows:

(1) The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens.

(2) In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.

(3) The Government is especially mindful to protect the safety of the community's more vulnerable members, including minors, the elderly and the disabled."

The seriousness and nature of the relevant conduct

" 10.1.1 The seriousness and nature of the conduct

(1) Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community. Those crimes involving violence, particularly against vulnerable persons (such as minors, the elderly and the disabled), are especially abhorrent to the whole community."

Paragraph 10.1.1(2) lists (in subparas (a) - (m)) "examples of offences and conduct that are considered serious", including (relevantly):

" (b) all offences perpetrated against a child (particularly sexually-based offences);".

Paragraphs 10.1.1(3) and 10.1.1(4) relevantly state:

" (3) The sentence imposed for an offence is considered indicative of the seriousness of the offender's conduct against the community. Due regard must be given to the extent of the person's criminal record, including

(i) the number and nature of offences;

(ii) the period between offences; and

(iii) the time elapsed since the most recent offence.

(4) The following factors are also to be considered:

(a) any relevant information, including, but not limited to, evidence from independent and authoritative sources in respect of the person such as judicial comments in an individual's case, professional psychological reports, pre-sentence reports for the courts, parole assessments, victim impact statements and similar sources of authoritative information or assessment;

(b) any relevant factors the person provides as mitigating factors;

..."

1. The applicant's criminal record in Australia consists solely of the nine offences (set out in paragraph 4 above) in respect of which he was convicted and sentenced on 11 January 2011.
2. The nine offences which the applicant perpetrated against his 14-year-old stepdaughter occurred on three separate dates in the period 31 January-21 April 2010. Six offences occurred on one date, two offences occurred on another date, and one offence occurred on another date.
3. The applicant's repugnant conduct in perpetrating those sexually-based offences (especially the offence of attempted sexual penetration) against his 14-year-old stepdaughter, who was in his care on the relevant occasions, involved serious criminality on his part. The seriousness of his conduct in committing those offences is reflected in the sentences of immediate imprisonment imposed, especially the sentence of 27 months' imprisonment in respect of the offence of attempted sexual penetration, resulting in a total effective term of imprisonment of three years.
4. The applicant's conduct in committing those offences must be regarded as a matter of great concern to the welfare and safety of members of the Australian community - in particular, children - and must be regarded as especially abhorrent to the Australian community. In short, that conduct involved very serious criminality for the purposes of para 10.1.1 of Direction [41].

" 10.1.2 The risk that the conduct may be repeated

(1) The person's previous general conduct and total criminal history are to be considered highly relevant to assessing any risk of re-offending.

(2) The following factors are to be considered as particularly relevant to this assessment:

(a) a recent history of convictions, which should be considered as indicating an increased risk of re-offending;

(b) evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation. Greater weight should generally be given to evidence from independent and authoritative sources, such as judicial comments, professional psychological reports, pre-sentence reports for the courts, parole assessments, and similar sources of authoritative information or assessment; and

(c) evidence that the person has breached judicial orders, including parole, bail, bonds, suspended sentences and any other relevant undertakings or conditions imposed by the courts."

1. The abovementioned nine offences which the applicant committed in the period 31 January−21 April 2010, and in respect of which he was sentenced on 11 January 2011, represent his entire recorded criminal history in Australia. Although the applicant has no recorded criminal history in India, the evidence before the Tribunal indicates that in 2008 in India the applicant engaged in inappropriate conduct towards his stepdaughter (then aged 13 years) which involved his touching her buttocks. The Tribunal notes that, in the course of cross-examination, the applicant briefly acknowledged that he had engaged in such conduct towards his stepdaughter but he then consistently refused to answer further questions regarding his conduct towards his stepdaughter in India, claiming that that matter was not relevant to the present proceedings.
2. The risk of the applicant's re-offending in a sexual manner was considered by Ms Barbuzza in her Pre-sentence Psychological Report, dated 1 December 2010. Ms Barbuzza considered his risk of re-offending as assessed by the "Static 99" risk assessment measure and the "Risk for Sexual Violence Protocol". She concluded:

" [The applicant] is considered to present a low to moderate risk of re-offending in a similar manner in the future, with particular risk situations being unsupervised contact with females similar in age to his current victim, and if he has established a relationship of trust with the children and/or their significant others."

Ms Barbuzza recommended that the applicant participate in a sex offender treatment programme offered by the Department of Corrective Services.

1. The applicant commenced the Sex Offenders Treatment Program (Medium Intensity) on 14 June 2011 and he was due to complete that program in early December 2011. He described his participation in that program and the benefits he has derived from it in the document whose contents are set out in paragraph 12 above.
2. The Tribunal notes that the Prisoners Review Board, by letter dated 15 September 2011, notified the applicant that it had decided to adjourn consideration of his parole until he had completed the Medium Sex Offender Treatment Program and it had received a Completion Report regarding his participation in that program, and that it would review his case "no later than 12 January 2012". (Exhibit A10)
3. For the purpose of making its own assessment of the risk of the applicant's re-offending in a similar manner, the Tribunal attaches great weight to Ms Barbuzza's Pre-Sentence Psychological Report of 1 December 2010. Ms Barbuzza's opinion was that the applicant then presented "a low to moderate risk of re-offending in a similar manner in the future". Ms Barbuzza's opinion was, however, expressed on the basis that the applicant had not then had "treatment to address his behaviour". She opined that the applicant was likely to benefit from such treatment because of his apparent motivation to change his behaviour, his feelings of regret and remorse in relation to his offending and his understanding of victim empathy issues. She accordingly recommended that the applicant participate in a sex offender treatment programme offered by the Department of Corrective Services.
4. The respondent submitted that Ms Barbuzza's assessment of the risk of the applicant's re-offending was not informed by an awareness of the applicant's inappropriate behaviour towards his stepdaughter in India in 2008 and of his interest in pornography, and that the Tribunal should accordingly regard her assessment as too low and should instead assess the risk of the applicant's re-offending as a "moderate" risk rather than a "low to moderate" risk. The Tribunal notes, however, that Ms Barbuzza refers in her report to the applicant's having first viewed pornography at the age of 14 or 15 years and to his offence involving showing pornography to his stepdaughter and it therefore cannot be said that Ms Barbuzza was unaware of his interest in pornography. The Tribunal, on the other hand, does accept that Ms Barbuzza was not made aware by the applicant, and was not aware, of his previous inappropriate behaviour towards his stepdaughter in India, and it may be that such awareness might have led her to assess the risk of his re-offending as somewhat higher than "low to moderate".
5. The Tribunal, however, is required to consider the nature and degree of the risk of re-offending which the applicant now presents. In considering that matter, the Tribunal has particular regard to the applicant's presentation and evidence at the hearing, in the light of his recent completion of the Sex Offenders Treatment Program (Medium Intensity) at Karnet Prison Farm.
6. The Tribunal notes the applicant's evidence regarding his participation in that program, and the lessons he has learnt and the benefits he has derived from his participation in that program, and his firm belief that he presents "no risk to the community in the future whatsoever" (see Exhibit A2 set out in paragraph 12 above).
7. In his oral evidence at the hearing, however, the applicant appeared to the Tribunal still not to accept full responsibility for his abhorrent offences against his stepdaughter and, in the Tribunal's opinion, he continued to minimise the seriousness of those offences. In particular, he continued to maintain that he never used force or violence against his stepdaughter and that his sexual conduct towards her met with no resistance by her and was "all consensual". Furthermore, a matter of serious concern to the Tribunal was the applicant's steadfast refusal to answer questions in cross-examination regarding his inappropriate behaviour towards his stepdaughter in India in 2008 because he did not consider his previous conduct to be relevant to the present matter ─ a stance which he maintained despite a direction by the Tribunal that his previous conduct was a relevant matter and that he should answer those questions. Having regard to these circumstances, the Tribunal has serious reservations regarding the genuiness of the applicant's expression of remorse and acceptance of responsibility for his offences, and the extent of his understanding of the seriousness of those offences and of his comprehension of the impact of those offences on his stepdaughter's future wellbeing.
8. While the Tribunal is prepared to accept that the applicant has made some gains as a result of his participation in the abovementioned Sexual Offenders Treatment Program, having regard to the whole of his evidence, the Tribunal is not satisfied that he has yet made substantial progress towards his rehabilitation. That being the case, and having regard to the contents of Ms Barbuzza's abovementioned Psychological Report, the Tribunal is of the opinion that the applicant continues to present a real risk of re-offending in a similar manner.

Conclusion regarding protection of the Australian community

1. Having regard to the abhorrence and seriousness of the applicant's conduct in committing the relevant offences against his 14-year-old stepdaughter, and to the Tribunal's conclusion that there continues to be a real risk of the applicant's re-offending in a similar manner - a risk which, in its opinion, would be unacceptable to the Australian community - the Tribunal is of the opinion that this "primary consideration" weighs heavily in favour of cancellation of the visa.

Whether the person was a minor when they began living in Australia

" 10.2 Whether the person was a minor when they began living in Australia

(1) If the person was a minor when they began living in Australia and spent their formative years in Australia, thereby increasing the likelihood of establishment of greater ties and linkages to the Australian community, this is to be given favourable consideration.

(2) Less weight should be given if the person began living in Australia as a minor but was close to attaining adulthood at that time.

Note: For example, if the person was between 17 and 18 years old on arrival."

By paragraph 6(1) of Direction [41] the word "minor", for the purposes of the Direction, "has the same meaning as in section 5(1) of the Act", namely, "a person who is less than 18 years old".

1. The applicant was 37 years old when he first arrived in Australia on 22 March 2009. The applicant was, therefore, not a "minor", within the meaning of para 10.2 of Direction [41], when he began living in Australia.
2. Accordingly, this "primary consideration" does not assist the applicant's case.

The length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity

" 10.3 The length of time that a person has been ordinarily resident

(1) Reflecting the fact that the longer a period of residence in Australia the greater the likelihood of significant ties to the Australian community, more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character.

Note: For example, a period of more than 10 years of residence in Australia prior to a person engaging in criminal activity or activity which bears negatively on the person's character would be an important consideration."

1. It is common ground that the applicant has been ordinarily resident in Australia from 22 March 2009 and that he engaged in committing the relevant offences in Australia in the period 31 January − 21 April 2010.
2. Having regard to the fact that the applicant was ordinarily resident in Australia for only approximately one year before he commenced to commit the relevant offences, in the Tribunal's opinion this "primary consideration" does not weigh in the applicant's favour. Although it is open to the Tribunal to regard this "primary consideration" as weighing against the applicant, the Tribunal prefers to regard it as neutral in this case.

1. Paragraph 10(1)(d) of Direction [41] refers to:

" relevant international obligations, including but not limited to:

(i) the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and

(ii) the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)."

" 10.4 International obligations

(1) Reflecting Australia's obligations under the CROC, if there is a child in Australia who is potentially affected by a visa refusal or cancellation decision, decision-makers must have regard to the best interests of the child.

...

10.4.1 The best interests of the child

(1) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse to grant or cancel a visa is expected to be made.

...

(3) If there are two or more relevant children, it is not to be assumed that the interests of each child will coincide. It may be that the best interests of one child may indicate that the person should not be refused a visa or have their visa cancelled and be removed from Australia, whereas the best interests of another child may not be adversely affected by visa refusal or cancellation and removal. The best interests of each child should therefore be given individual consideration.

(4) Under Australian law, it is generally presumed that a child's best interests will be served if the child remains with its parents. Factors which may indicate that the child's best interests are served by separation from the person include, but are not limited to:

(a) any evidence that the person has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; or

(b) any evidence that the child has suffered or experienced any physical or emotional trauma arising from the person's conduct."

1. There are two children whose best interests must be considered in this case, namely, the applicant's stepdaughter (who is presently aged 16 years) and his son (who is presently aged 7 years).
2. In the case of the applicant's stepdaughter (the victim of his relevant offences), on 22 March 2011 the Children's Court of Western Australia, on the application of the Department for Child Protection dated 23 April 2010, made a Protection Order, pursuant to s 57 of the Children and Community Services Act 2004 (WA), that the Chief Executive Officer of the Department have parental responsibility for the child until she attains the age of 18 years (in April 2013) (see Exhibit R2, p 262). The Tribunal notes that the child has been placed with Departmentally registered foster carers since 10 May 2010 and that the carers have provided her with "a safe, loving and caring environment" and she has expressed her desire to stay with her carers (see Exhibit R2, pp 259-261, 270-281). She has also made it clear that she wants no further contact with the applicant. In these circumstances, the Tribunal is clearly not satisfied that her best interests militate against cancellation of the visa.
3. Different considerations apply, however, in the case of the applicant's son. He was born in India in September 2004 and lived with the applicant, the applicant's wife (the child's mother) and the applicant's stepdaughter in India and, from March 2009, in Australia. Since the applicant was taken into custody, and the applicant's stepdaughter came into the care of the Department for Child Protection, on 20 April 2010, the applicant's son has lived with his mother (the applicant's wife) alone.
4. It is clear from the evidence of the applicant's wife that she believes that her son misses and needs his father, and that she wants the applicant to play a full parental role in their son's upbringing. The Tribunal has no doubt that that is also the wish and intention of the applicant. It is also clear from her evidence that she regards it as in the child's best interests for him to remain in Australia and also for the applicant to remain in Australia so that he can properly parent and support the child here, and that, if the child was physically separated from the applicant by reason of the applicant's removal from Australia, such separation would have a detrimental effect on the child's future wellbeing.
5. The Tribunal is uncertain, having regard to the evidence before it, whether the child and his mother would accompany the applicant if he was removed from Australia. It seems to the Tribunal that the applicant's wife is herself uncertain as to what she would do in that eventuality. On the one hand she desperately wants her son to be with his father, but, on the other hand, she said that she would not leave Australia and thereby abandon her daughter. Another important consideration for her, of course, is that, without the applicant, she would be in the position of having to financially support herself and the child ─ a position which she would find very difficult (as she indicated in her letter and statement set out in paragraphs 18-19 above). In her oral evidence, however, she appeared to indicate that she felt that she would be able to provide for herself and her son, if necessary. No doubt a final decision by the applicant's wife on this matter is awaiting the outcome of the present proceeding.
6. In the Tribunal's opinion, the applicant's son is likely to have a more advantageous future in Australia than in India and that it is in his best interests if he remains here. To the extent that his best interests are likely to be promoted by the applicant's remaining in Australia, this "primary consideration" weighs against cancellation of the visa.
7. In the Tribunal's opinion, there are no other relevant international obligations which require consideration in this case.

"11. Other considerations

Note: These are not primary considerations.

(1) In reaching a decision on whether to refuse or cancel a visa, other considerations, although not primary, may be relevant and, if so, must be considered.

(2) It is appropriate that these considerations, where relevant, must be taken into account but, generally, they should be given less weight than that given to primary considerations.

..."

Paragraph 11(3) sets out (in subparas (a) - (g)) an inclusive list of "other considerations". The Tribunal will specify, and comment upon, each of those "other considerations" which appear to be relevant in this case.

The extent of disruption to the person's family, business and other ties to the Australian community

1. Other than his wife and the two children, none of the members of the applicant's immediate or extended family lives in Australia. His parents and siblings live in India, as do his nieces, nephews and cousins (except for one cousin who lives in the United States of America) (see G13, p113).
2. Although the applicant has lived in Australia for less than three years (since March 2009), he has developed a relatively extensive supportive social network (including the local Christian community) in Perth, as evidenced by the numerous letters of support and character references (several of which were written by various prison chaplains) which are in evidence (some of the authors of which appeared as witnesses while others were prepared to do so if required). These social and religious ties to the Australian community will, of course, be broken if the applicant is removed from Australia.
3. The impact that the applicant's removal from Australia would be likely to have on his family unit in Australia is considered in paragraphs 84-85 below.

Links to the country to which the person would be removed

1. The applicant was born, raised and (presumably) employed in India and he lived there until March 2009 when he was 37 years old. As previously mentioned, his parents and siblings and all but one of the members of his extended family live in India. The Tribunal is satisfied that the applicant retains substantial family and cultural links to India.

Hardship likely to be experienced by the person or immediate family members lawfully resident in Australia

1. The applicant set out in his statement (Exhibit A1 - see paragraph 11 above) the various forms of hardship which he claimed that he and his family unit would suffer if he were returned to India. The Tribunal accepts that the applicant would suffer great emotional distress if he were physically separated from his wife and son by reason of his removal from Australia. The Tribunal also accepts the applicant would be likely to suffer economic, social and vocational hardship if he were returned to India and it notes his concerns for his personal safety in India because of expected retribution from his stepdaughter's paternal relatives. Such distress and hardship would, however, be the ultimate product of his own repugnant criminal conduct in Australia and the Tribunal does not attach significant weight to that matter.
2. The Tribunal, on the other hand, does attach significant weight to the distress and hardship that the applicant's wife would be likely to suffer if she were physically separated from the applicant by reason of his removal from Australia, including her distress that her son would be without his father and the hardship in her being deprived of the emotional and financial support that the applicant would otherwise be expected to provide. If, however, she (and her son) returned to India with the applicant, the Tribunal accepts that she would suffer great emotional distress by reason of her physical separation from her daughter (who, the Tribunal assumes, would remain in Australia).

1. The Tribunal notes that the applicant had commenced an accounting course at a tertiary institution in February 2010 before he was taken into custody in April 2010. He has also completed various prison educational and skills development courses during his incarceration.
2. The Tribunal does not attach significant weight to this matter.

1. Having considered the applicable primary considerations and the other relevant considerations in this case, the ultimate task of the Tribunal is to determine, on the basis of the appropriate weight to be given to each of those considerations having regard to Direction [41], whether or not those considerations, on balance, favour cancellation, or non-cancellation, of the visa.
2. As regards the applicable primary considerations, the protection of the Australian community weighs heavily in favour of cancellation of the visa, the best interests of the child weighs against cancellation of the visa, whereas the period of residence in Australia before the commencement of criminal activity does not, in the Tribunal's opinion, weigh in favour of, or against, cancellation of the visa.
3. As regards the other considerations referred to in paragraphs 80-87 above, none of those considerations weighs in favour of cancellation of the visa, whereas, in the Tribunal's opinion, some of those considerations weigh against cancellation of the visa, namely, the considerations relating to the disruption of the applicant's social and religious ties to the Australian community and the hardship likely to be experienced by the applicant and, especially, his wife in the event of his removal from Australia, as discussed in paragraphs 81, 84-85 above.
4. In the Tribunal's opinion, the consideration which should be given the greatest weight in the circumstances of this case is the protection of the Australian community. The Tribunal has formed this opinion having regard to:
   • the Government's objectives referred to in subparas (2) and (3) of para 5.1 of Direction [41] (set out in paragraph 46 above) - in particular, the objective of protecting the safety of Australian children from unacceptable risks of harm as a result of criminal activity by non-citizens;
   • the abhorrence and seriousness of the applicant's conduct in committing nine sexual offences, including attempted sexual penetration, against his 14-year-old stepdaughter; and
   • the continued existence of a real risk that the applicant will re-offend in a similar manner - a risk which, in the Tribunal's opinion, would be unacceptable to the Australian community.
5. In the Tribunal's assessment, the protection of the Australian community, which weighs heavily in favour of cancellation of the visa, clearly outweighs all other relevant considerations in this case which weigh against cancellation of the visa, namely:
   • the best interests of the applicant's son; and
   • the other considerations discussed in paragraphs 81, 84-85 above.

Although the best interests of the applicant's son, being a "primary consideration", is deserving of due weight, in the Tribunal's opinion significantly less weight should be attached to that consideration in the circumstances of this case than to the protection of the Australian community. Likewise, the other considerations discussed in paragraphs 81, 84-85 above, being considerations which "generally ... should be given less weight than that given to primary considerations" (para 11(2) of Direction [41]), are, in the Tribunal's assessment, deserving of less collective weight than that given to the protection of the Australian community in the circumstances of this case.

1. The Tribunal concludes, therefore, that, having regard to the totality of the applicable "primary considerations" and the other relevant considerations in this case, those considerations, on balance, favour cancellation of the visa. In the Tribunal's opinion, the cancellation of the visa in this case would accord with the standards, values and expectations of the Australian community. Accordingly, the preferable decision in this case is that the visa be cancelled pursuant to s 501(2) of the Act.

1. For the above reasons, the Tribunal affirms the decision under review.

I certify that the 94 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop