.......................[sgd].......................

MIGRATION - visa cancellation - character test - Ministerial Direction - weighing of relevant considerations - decision under review affirmed

Migration Act 1958 (Cth) - ss 499, 501

Minister for Immigration & Citizenship v Toma (2011) 191 FCR 362; [2011] FCA 91

Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390; [2011] FCA 194

Direction [no. 41] - Visa refusal and cancellation under s 501

1. Mr Asish Ashnarayan has applied to the Administrative Appeals Tribunal for review of the decision made by the Minister for Immigration and Citizenship to cancel his Australian visa. A Fijian citizen, Mr Ashnarayan is in prison serving convictions for "assault occasioning actually bodily harm" and "stalk/intimidate with intent to cause fear of physical harm". This is Mr Ashnarayan's second custodial sentence since arriving in Australia in June 2003.
2. Mr Ashnarayan was 18 when he migrated to Australia and is now 27 years of age. He is estranged from both parents - his mother lives in Australia; his father in Fiji. Those members of his family who live in Sydney have not contacted Mr Ashnarayan since August of last year when he commenced his current custodial sentence. Mr Ashnarayan has not seen his four-and-a-half-year-old son for about 18 months.
3. Mr Ashnarayan does not pass the "character test" because he has a "substantial criminal record" and therefore the discretionary power to cancel his visa is enlivened: s 501 of the Migration Act 1958 (Cth) (the Act). The question we must decide is whether that power should be exercised. In making that decision, Direction [no. 41] - Visa refusal and cancellation under s 501 (the Direction), issued by the Minister under s 499 of the Act, must be applied.

FACTORS RELEVANT TO THE EXERCISE OF POWER TO CANCEL MR ASHNARAYAN'S VISA

1. The Direction instructs that in exercising the power conferred by s 501, due consideration must be given to the Government's objectives as set out in the preamble to the Direction:

5.1 Objectives

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

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

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

1. The Direction lists a number of "primary" and "other" considerations that must be taken into account by the decision-maker, and instructs that "other considerations" - namely those listed at cl 11 - should generally be given less weight than primary considerations: cl 11(2).
2. The primary considerations are set out in cl 10(1) of the Direction:

(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).

1. Factors relevant to assessing the risk of harm to the community of Mr Ashnarayan's continued stay in Australia include: (i) the seriousness and nature of the relevant conduct; and (ii) the risk that the conduct may be repeated: cll 10.1.1 and 10.1.2.

1. The Direction sets out a number of factors that must be taken into account in assessing the seriousness and nature of the offending conduct and states (cl 10.1.1(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.

1. Clause 10.1.1(3) states that the sentence imposed for an offence is considered indicative of the seriousness of the offender's conduct against the community, and due regard must be given to the extent of the offender'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.

1. Clause 10.1.1(4) states that the following factors are also to be considered in the assessment of the seriousness and nature of the conduct:

(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. Two years after arriving in Australia, Mr Ashnarayan was convicted of "custody of a knife in a public place" and fined $400. In November 2007 he was convicted of the following offences:

Three convictions for having sexual intercourse with a person over 14 and under 16 years of age

18 months, 15 months and 9 months imprisonment, respectively

12 months, 9 months, 9 months and 9 months imprisonment respectively

Contravention of Apprehended Domestic Violence Order

1. Apart from the "robbery in company", the victim in all cases was a young girl, who we will refer to in these Reasons, to preserve her anonymity, as "Miss A". Miss A was 14 when she met Mr Ashnarayan who was then 20 years of age. A sexual relationship quickly developed. Within months the relationship deteriorated - they argued, Mr Ashnarayan accused Miss A of infidelity and was violent towards her. Miss A fell pregnant to Mr Ashnarayan in the second half of 2006 - she was then aged 15.
2. On sentencing, Judge Johnstone DCJ stated that of Mr Ashnarayan's 10 offences he considered the eighth, a common assault, to be the "most reprehensible". It involved Mr Ashnarayan punching the then 18-week pregnant Miss A in the stomach. Immediately before that incident, in an effort to persuade Miss A not to attend school that day, Mr Ashnarayan had grabbed her by the neck and hair and head-butted her in the mouth.
3. In August 2010, after entering guilty pleas, Mr Ashnarayan was convicted of two counts of assault occasioning actual bodily harm and stalk/intimidate with intent to cause fear of physical harm. The police facts sheet in relation to these offences was not before us. When asked in these proceedings to give an account of those offences, Mr Ashnarayan stated that they involved slapping his then de facto across the mouth twice and the following day taping her mouth before handing himself in to police. On his account, the trigger for that incident had been his distress at learning that his partner was having an affair with another man. He claimed that at the time he was "out of control" and under the influence of amphetamines. The remarks made by the sentencing magistrate suggest that the conduct might have been more serious than that account:

The matters are very serious and I need to send you a message that this behaviour is not acceptable as well as to the rest of the community. I do accept whilst it occurred over two days, [it] appeared to be part of a pattern of one ongoing course of conduct which does not make it any better for the victim.

Period between offences and time elapsed since most recent offence

1. Since committing his first offence in 2005, Mr Ashnarayan has offended on a regular basis. His most recent offence was committed on 1 August 2010. Mr Ashnarayan has been in custody since that day.

1. His Honour Judge Johnstone DCJ decided to reduce Mr Ashnarayan's non-parole period on the basis of special circumstances referring to the following extract from a report prepared by psychologist, Dr Wayne Reid:

He has certain symptoms consistent with post-traumatic stress disorder and major depression to his intellectual impairment. He has a long history of psychosocial problems arising from an early childhood marred by domestic violence and an alcoholic father. Within this context he started abusing alcohol from that point on. In addition he has abused a wide range of drugs up until the time of his imprisonment.

From the history and results of my neuropsychological assessment I am of the opinion that Mr Ash Narayan's [sic] impaired condition is due to a combination of factors including his post-traumatic stress disorder, depression, early psychosocial deprivation and alcohol abuse from the age of 8.

From the history is seems that he has periods of reasonably good functioning where he has been able to hold down a job although this seems to break down after a short while due to his abuse of drugs and alcohol.

It appears he uses drugs and alcohol as a means of self-medicating his depression and symptoms of PTSD. As such it is recommended that he undergo an intensive rehabilitation program treating his drug and alcohol abuse and psychological problems. I am of the opinion that this may best be done in an in-patient facility either whilst he is in prison or following his release from prison.

1. His Honour was of the opinion that the evidence of the prospects of Mr Ashnarayan's rehabilitation was "equivocal".

1. We understand Mr Ashnarayan to contend that his conduct can be explained (but not excused) in part because of post-traumatic stress disorder and his difficult childhood. He claims that as a result of the following events he felt "worthless and weak and engaged in self-destructive behaviour":
2. Girlfriend's death: Mr Ashnarayan claims that until recently he blamed himself for his girlfriend's death which he witnessed when he was 16 years of age. He said that until recently, he had not received any counselling or the opportunity to discuss his feelings about this traumatic incident.
3. Abusive father: Mr Ashnarayan claims that his father has a long history of alcohol abuse and was violent towards his mother (and himself) forcing her to flee to Australia when he was 12 years of age. That account has been corroborated (see Exhibit R 1).
4. Abandonment by mother: Mr Ashnarayan was 12 years of age when his mother migrated to Australia. He and his brother were left in the care of his father who was violent and mistreated them. On arrival in Australia, he lived with his mother for two years. He claims that he has harboured feelings of resentment towards his mother but now realises that because of his father's abuse she had little choice but to flee Fiji.
5. Drug and alcohol use: According to Mr Ashnarayan, he commenced using illicit drugs and abusing alcohol shortly after arriving in Australia. He testified that by 2006 he was a heavy user of heroin and methamphetamines.

1. In assessing the risk that Mr Ashnarayan might reoffend we must have regard to the "highly relevant" and "particularly relevant" factors set out in subcll (1) and (2) of cl 10.1.2: Minister for Immigration & Citizenship v Toma [2011] FCA 91; (2011) 191 FCR 362 at 372-373.

1. The Direction instructs that general conduct and total criminal history are to be considered highly relevant factors in the assessment of Mr Ashnarayan's risk of reoffending. There is no evidence of Mr Ashnarayan having any involvement in criminal activity before his arrival in Australia.

1. While in custody, Mr Ashnarayan has completed a number of rehabilitation courses. Of these, he considers "Getting Self-management and Recovery Training" (SMART) and "Custody Based Intensive Treatment" (CUBIT) to have been the most beneficial.
2. The stated aim of SMART is to "help offenders for whom addiction has contributed to their offences to gain independence from their addictions". Mr Ashnarayan completed the program in June of this year. The program's facilitators were of the opinion that Mr Ashnarayan appeared motivated, participated fully in the program and demonstrated an understanding of the "faulty thinking" that had led him into drug use. They recommended that he attend a community-based program upon release to support his goal of abstaining from drugs. Mr Ashnarayan claims not to have used drugs or alcohol since the commencement of his current custodial sentence.
3. In February of this year, Mr Ashnarayan commenced the CUBIT program which runs for between six to ten months. On his application, his parole has been revoked to enable him to complete the program.
4. In a letter to the Department of Immigration dated 15 April 2011, CUBIT manager Ms Kristy Murphy described the program as a custody-based residential therapy program for perpetrators of sexual abuse. In her opinion, Mr Ashnarayan has started to examine the factors in his life that had contributed to his offending conduct and to date, his participation had been satisfactory. She did not offer an opinion about Mr Ashnarayan's risk of reoffending and indicated that a comprehensive risk assessment would not be undertaken until after he had completed the program.
5. Mr Ashnarayan believes that CUBIT has given him an awareness of, and the tools to address, his "distorted thinking". On his account, prior to participating in the program he held the irrational belief that he was responsible for his father's abuse of his mother and his girlfriend's death. He said he now realises that his violent and abusive treatment of women was the result of misplaced anger towards his mother for abandoning him.
6. He believes that as a result of participating in CUBIT he no longer poses a risk of reoffending. He acknowledges that when asked to show cause why his Australian visa should not be revoked he made a similar claim in a letter to the Department dated July 2008. However he claims that through SMART and CUBIT he has developed the insight and the tools to address his aberrant behaviour.

1. The evidence is unclear as to whether Mr Ashnarayan suffers from a mental illness. As noted at paragraph 16 above, on sentencing, His Honour Johnstone DCJ referred to a report prepared by psychologist, Dr Wayne Reid, dated 9 October 2007 who wrote that he had "certain symptoms consistent with post-traumatic stress disorder and major depression". That report is not before us.
2. In a report dated 21 July 2009, psychiatrist Dr Anthony Samuels, after interviewing Mr Ashnarayan and reviewing his Justice Health file, wrote that he could find no clear-cut evidence of a major mental illness and no features to suggest a major affective, anxiety disorder or psychotic illness. He recommended review of the clinical notes of the community health centre that had apparently prescribed Mr Ashnarayan Seroquel - an antipsychotic used to treat schizophrenia.
3. Since re-entering custody in August 2010, Mr Ashnarayan has not been prescribed medication or received treatment for any psychiatric condition. There is nothing in the notes produced under summons by Justice Health to suggest that there is a current diagnosis of a mental illness although they contain a number of references to Mr Ashnarayan displaying symptoms of depression after receiving notice of his visa cancellation. Indeed, as Dr Samuels wrote, Mr Ashnarayan has never been diagnosed as suffering from a psychiatric condition while in custody.

1. The Minister tendered in these proceedings a report prepared by psychologist, Ms Laura O'Neill, dated 27 October 2009. Ms O'Neill interviewed Mr Ashnarayan in December 2008 and March 2009 for the purpose of preparing a report about his risk of reoffending.
2. Employing STATIC-99R - an authoritative actuarial tool used to predict recidivism rates among known sex offenders by examining static risk variables (eg offender's age, offending history) - Mr Ashnarayan scored four out of a possible ten, placing him in the moderate to high risk category relative to other offenders.
3. Ms O'Neill also considered "dynamic risk factors" - factors said to be related to recidivism that may change. In her opinion, the following were of concern: Mr Ashnarayan's tendency to socialise with negative peers and engage in substance abuse; his inability to form appropriate relationships with women; poor problem solving skills, impulsivity and mental illness. Ms O'Neill apparently assumed that Mr Ashnarayan suffered from schizophrenia.
4. On the basis of both dynamic and static risk factors, Ms O'Neill concluded that Mr Ashnarayan fell within the moderate to high risk range for sexual reoffending. She considered that he is most at risk of sexual offending recidivism in the context of an intimate relationship. She thought he was also at risk of violent reoffending during periods of unmanaged mental illness or substance abuse.

1. Mr Ashnarayan has a poor history of compliance with judicial orders. Six of the offences for which he was convicted were committed while on bail. He was convicted of contravention of an Apprehended Domestic Violence Order in 2007 and in March 2009, of failing to comply with reporting obligations while on parole in respect of a child protection order. The later resulted in parole being revoked.

PROTECTION OF THE AUSTRALIAN COMMUNITY: FINDINGS AND CONCLUSIONS

1. The primary consideration of the protection of the Australian community requires consideration to be given to both the seriousness of Mr Ashnarayan's criminal conduct and the risk that it might be repeated.
2. There can be little argument that while not at the high end of the scale, the majority of the offences for which Mr Ashnarayan has been convicted are serious in nature. All but one involved violence and/or sexual conduct and resulted in a custodial sentence. In most cases, the victim was a child. Not only were the offences themselves serious but within two years of arrival in Australia a pattern of regular offending had developed. Taken together with his failure to comply with judicial orders, Mr Ashnarayan's conduct in our view must be seen as serious.
3. The more difficult task is the assessment of Mr Ashnarayan's risk of reoffending. There are a number of factors which in our opinion moderate that risk. First, there is no evidence and nor is it suggested that Mr Ashnarayan has a criminal history that extends beyond 2002. Second, in the time since Ms O'Neill provided her bleak assessment of Mr Ashnarayan's moderate to high risk of reoffending, he has undertaken a structured drug and alcohol program and participated in CUBIT. He is probably correct that these courses offer him the best opportunity to date to overcome his drug and alcohol problems and to understand what triggers his offending conduct. Third, his evidence given in these proceedings suggests that he appears to have gained some insight into the factors which caused him to offend. Fourth, the evidence does not suggest that he is unable to modify his behaviour - his conduct while in prison for example has generally been of a high standard.
4. Nonetheless, a number of factors suggest that there is some risk that Mr Ashnarayan will reoffend. First, while we accept that, as a result of his participation in CUBIT, that risk has been reduced to some degree, he is yet to complete that course. Until such time as that occurs, those involved in the course will not re-assess Mr Ashnarayan, which makes an appraisal of the extent to which that risk has been reduced difficult. Second, he will be released into the community without the support of family or any prospects of employment. Third, while he stated in these proceedings that he intended to undertake further drug and alcohol counselling, his responses left us unconvinced that he was committed to that course. Fourth, he has a significant criminal history and a poor history of compliance with judicial orders.
5. It is notoriously difficult to determine whether a person with a criminal history will reoffend. It goes without saying that many people with a criminal past do not reoffend and go on to contribute to the community. It may be, as Mr Ashnarayan states, that during his current period of incarceration he has gained both the resolve and the tools to resist the temptation to resume drug and alcohol use and reoffend. However, on what is before us, we could not be reasonably confident that this will occur.
6. Given the seriousness of Mr Ashnarayan's conduct - involving crimes of violence and sexual violence against a minor - and the risk that he may reoffend, we have concluded that the consideration of the protection of the Australian community weighs against him in the assessment of whether his visa ought be cancelled.

1. Mr Ashnarayan was 18 years of age when he arrived in Australia.
2. In Rosson v Minister for Immigration and Citizenship [2011] FCA 194; (2011) 191 FCR 390 at 396, Rares J noted that no guidance is provided in the Direction as to the weight that should be given to this Consideration where the visa holder was not a minor when they arrived in Australia. His Honour was of the opinion that a decision-maker is:

[E]ntitled to take into account the fact that a person who arrived in Australia as an adult, did so with the knowledge, duties and responsibilities of an adult in the position of the visa holder, at that time for the purposes of assessing what, if any, weight ought be given to that factor in the deliberative process.

1. This factor cannot assist Mr Ashnarayan given his age when he arrived in Australia. However, given that he had just reached his majority on arrival, this factor does not weigh against him to the extent it might had he been older.

1. Under the Direction, "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": cl 10.3(1).
2. Mr Ashnarayan's first offence was committed within two years of arrival in Australia. About half of the time he has resided in Australia has been spent in prison. Given the relatively short period Mr Ashnarayan had been resident in Australia before engaging in criminal activity, together with the amount of time he has spent in custody, in our opinion this consideration weighs against him.

1. Mr Ashnarayan has a son who is now four-and-a-half-years of age. Miss A is the mother of the child.
2. The Direction states that it is generally presumed that a child's best interests will be served if they remain with their parents: cl 10.4.1(4). This presumption is rebutted where there is any evidence that the person has neglected the child in any way, or the child has suffered any emotional trauma arising from the person's conduct: cl 10.4.1(4). Clause 10.4.1(5) lists a number of factors that must be considered in assessing the best interests of each child. Those relevant are addressed below in no particular order.
3. The only evidence before us about the child or his relationship with Mr Ashnarayan is that given by Mr Ashnarayan, some photos and two letters written by Miss A, the most recent apparently late last year. The letters indicate that Miss A is on friendly terms with Mr Ashnarayan but is disappointed with his inability to stay out of trouble. Miss A wrote that the child misses and loves Mr Ashnarayan "a lot" and is always asking when he will see "daddy" again. The photos show Mr Ashnarayan in the company of Miss A and the child. They appear happy and affectionate. Mr Ashnarayan claims that he loves the child and is committed to being a good father.
4. There is no direct evidence of the wishes of the child vis-à-vis Mr Ashnarayan's proposed deportation.
5. Miss A visited Mr Ashnarayan in custody in October last year - her first and only visit. On Mr Ashnarayan's account, after that visit they were in regular phone contact until about four months ago. He gave inconsistent evidence about the frequency of that phone contact and when it stopped. He claims to have made numerous attempts to contact Miss A to ask her to attend these proceedings but his calls were not returned.
6. Initially in evidence, Mr Ashnarayan claimed that when he was not in gaol he usually saw the child on each weekend. He later stated that the last time he saw the child was in April of last year - about four months before he was incarcerated. He gave varying accounts of how often he saw the child during this period.
7. According to Mr Ashnarayan, Miss A has care and custody of the child. Mr Ashnarayan claims that she has told him that he can see the child whenever he wants. He also claims that throughout the 10 months between his first and current periods of incarceration he paid child support of about $40 per month. He was unable to offer an explanation for having recently received an account of just over $4,000 from the Child Support Agency.
8. Mr Ashnarayan has been in custody for all but 10 months of his son's life. There is no evidence to suggest, and nor did Mr Ashnarayan claim, that the child would return with him to Fiji if he were deported.

THE BEST INTERESTS OF THE CHILD: FINDINGS AND CONCLUSIONS

1. The evidence makes plain that Mr Ashnarayan has played an extremely limited role in his son's life. His evidence at its highest is that he had weekly face to face contact with the child for about seven months and has not seen him for close to 18 months. The relationship could not be said to be parental in nature - Mr Ashnarayan has never lived with, nor had responsibility for the child's care or welfare.
2. Miss A's failure to contact Mr Ashnarayan, despite his repeated requests, raises real doubts as to whether, as he claims, she would be prepared to allow him to maintain contact with the child.
3. In our opinion, it could not reasonably be argued that the child's interests would be adversely affected if Mr Ashnarayan were to be deported. Nonetheless, it is probably in his interests to have the opportunity to get to know his father which could be more readily facilitated if he were to remain in Australia.
4. While this consideration weighs in Mr Ashnarayan's favour, given the limited relationship with his son and the uncertainty over the role, if any, he might play if he were to remain in Australia, it does so only to a small extent.

1. The Direction specifies a number of "other considerations" that must be taken into account, if relevant. They should generally be given less weight than the four primary considerations: cl 11(2).

1. Mr Ashnarayan's mother, grandmother and a number of cousins, aunts and uncles live in Australia. None visited him during his current period in custody. His mother advised Departmental officers in April of this year that she is not in contact with her grandson, her relationship with her son has broken down and that he will not live with her on his release.

1. Mr Ashnarayan lived in Fiji until he was 18 years of age. In contrast to information provided to the Department by his mother, he claims that he has no family in Fiji apart from his father.

1. Mr Ashnarayan claims that he will suffer hardship if deported because he will lose contact with his son and in Fiji, be at risk of harm from his father, have no support and probably be homeless.
2. After being notified of the Minister's decision to cancel his Australian visa, Mr Ashnarayan told fellow inmates and a Justice Health psychologist that he was resigned to the decision and making plans for his return. When questioned in these proceedings about his apparent change of heart he said that after reflection he realised that his optimism was misplaced given his lack of family support and Fiji's political instability and high unemployment. He testified that he is fearful that his father will kill him if he learns the reason for his return to Fiji.
3. Mr Ashnarayan's mother told officers of the Department in April this year that she believes her son would have a better life in Fiji and will be supported by family members to find accommodation and employment. In her opinion, a return to Fiji would provide her son with the opportunity to have a new start in life away from drugs.

Hardship likely to be experienced by Mr Ashnarayan's family members resident in Australia

1. There is no evidence that any member of Mr Ashnarayan's family resident in Australia would suffer hardship if he were to be deported. He admitted in these proceedings that he was not in a de facto relationship with Miss A despite stating that he was in a form submitted to the Department of Immigration in February of this year.

1. Mr Ashnarayan was given written notice in May 2008 that any future conduct could result in deportation and "disregard of this warning will weigh heavily against you if your case is reconsidered".

1. Of the "other considerations", none in our opinion weigh in favour of Mr Ashnarayan. Mr Ashnarayan's claim that he has no family in Fiji apart from his father is unsupported and inconsistent with the information provided by his mother to the Department. In any event, even if accepted, it seems to us that the position in Australia will be much the same.

1. In deciding whether to exercise the discretionary power to cancel Mr Ashnarayan's visa, we must take into account the primary and "other" considerations and undertake a balancing exercise. In doing so, we must be guided by the overarching general principle set out in the objectives to the Direction - that is, the protection of the Australian community.
2. Of the primary considerations, all but one weigh against Mr Ashnarayan. While that consideration - the "best interests of the child" - weighs in his favour it does so to only a small extent. Of the other considerations, most are either neutral or weigh in favour of the cancellation of Mr Ashnarayan's visa. Although we have some sympathy for Mr Ashnarayan due to the position he now finds himself in - estranged from family and friends and accept that he is now worried about the prospects of a return to Fiji we have decided that given the weight of factors that favour cancellation, the preferable decision in this case is to affirm the Minister's decision to cancel his visa.

I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton and Senior Member D Letcher QC

Signed: .........................[sgd].............................

Solicitor for the Respondent Ms L. Buchanan, Australian Government Solicitor