Oliver and Minister for Immigration and Citizenship [2010] AATA 1049 (22 December 2010)

Last Updated: 23 December 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 1049

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/4444

GENERAL ADMINISTRATIVE DIVISION		)
	Re		BLAIR STERLING OLIVER

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal

Mr John Handley, Senior Member

Date 22 December 2010

Place Melbourne

Decision

The decision under review is affirmed.

John Handley
Senior Member

MIGRATION – applicant’s visa cancelled – failure to pass the character test – substantial criminal record – conviction for 19 counts of sex offences against 3 children under the age of 16 – sentenced to 8 years and 7 months imprisonment – served 5 years and 9 months - whether discretion should be exercised to cancel visa – application of Direction 41 – protection of Australian community – seriousness and nature of the conduct – risk of re-offending – rehabilitation and remorse – age he arrived in Australia and length of time ordinarily resident in Australia – ties to Australia and ties to Sri Lanka – hardship on applicant and immediate family members.

Migration Act 1958 (Cth) s 499, s 501(2) and s 501(6)(a)

Sex Offenders Registration Act 2004 (Vic) s 50

REASONS FOR DECISION

22 December 2010

Mr John Handley, Senior Member

1. The applicant is a citizen of Sri Lanka who first entered Australia on 13 February 1988 on a tourist visa (V12) at the age of 21. He applied for refugee status and was refused. On 14 March 2001 he was granted a Class BL Sub-Class 851 visa. He continued to hold that visa until it was cancelled on 5 October 2010. He has remained in Australia since he first arrived. The applicant is presently aged 43. He has never married and does not have children.
2. The applicant was charged with 14 counts of wilfully committing indecent acts with or in the presence of a child under 16 and 5 counts of taking part in an act of sexual penetration with a child under 16. Two trials were convened and the applicant pleaded not guilty. He was convicted in the County Court of Victoria and on 4 March 2005 he was sentenced to a term of imprisonment of 8 years and 7 months with a non-parole period of 5 years and 9 months. An application to the Court of Appeal seeking leave to appeal was refused.
3. The offences occurred between 1992 and 1994. The victims were brothers and the children of the applicant’s cousin, who he frequently visited at their home.
4. The conduct of the applicant was brought to the attention of Victoria Police by the Department of Human Services in 1994. The mother of the children elected not to report the incidents or assist the police in their investigations. However, for reasons which are not known, further information was received by the police in 2003. The three victims were interviewed, they each made statements and despite the applicant denying the allegations, he was eventually charged.
5. The applicant has applied to review a decision of a delegate of the Minister made on 5 October 2010 to cancel his visa pursuant to s 501(2) of the Migration Act 1958 (the Act). The delegate concluded that the applicant did not pass the character test under s 501(6)(a) because he has a substantial criminal record (s 501(7)(c)). The delegate exercised his discretion to cancel the visa on the basis that the applicant posed an unacceptable risk of harm to the Australian community.
6. The applicant does not dispute that he has a substantial criminal record as defined in s 501(7)(c) of the Act and therefore, does not pass the character test (s 501(2)). The issue to be determined by the Tribunal is whether the discretion available under s 501(2) should be exercised. In deciding whether to cancel the applicant’s visa, the Tribunal is required to exercise the discretion having regard to the considerations set out in Direction [no 41] – Visa refusal and cancellation under s501 (Direction 41) issued by the Minister pursuant to s 499 of the Act.
7. The applicant’s three victims were identified in the sentencing remarks of Judge Hogan found within the G Documents (Exhibit R1). However, given the nature of the offences and the psychological impact on the victims and their mother, I considered it appropriate that orders be made pursuant to s 35 of the Administrative Appeals Tribunal Act 1975 prohibiting publication of their names. Accordingly, in these Reasons for Decision, for the purposes of the order made under s 35, the mother of the three victims will be known as M and the three victims will be known as R, A and C.

BACKGROUND

8. The offences committed by the applicant over the three brothers are described in considerable detail in the sentencing remarks of Judge Hogan (Exhibit R1, p63-79).
9. The offences against R occurred between 1992 and 1994 when he was aged 12½ to 15. It would appear that most of the offences occurred when he was aged 14 or 15. The applicant was then aged between 25 and 27 years and had been in Australia between four and six years. The offences against R constituted eight counts of indecent acts and four counts of sexual penetration. The conduct giving rise to those offences involved the applicant masturbating R, engaging in oral sex with R and having R masturbate him. The offences occurred at the applicant's home during a time when R was in his care and his parents were absent. Another occasion occurred at R’s home, in his own bedroom, when his mother was absent at work, his father was asleep in an adjacent lounge room and his two brothers were elsewhere in the home.
10. The applicant was convicted of five counts of an indecent act and one count of sexual penetration of A. The offences occurred between 10 December 1992 and 31 December 1993 when A was aged between 11 and 13. From the sentencing remarks it would appear that the offences occurred when A was aged 11. The offences occurred in the applicant's home. No other persons were present and A had attended the home at the invitation of the applicant and with the consent of M. As with R, the applicant masturbated A, engaged in oral sex with him and had A masturbate him.
11. The applicant was found guilty of one count of an indecent act against C, the youngest. C was then aged between 7 and 9. The offence occurred in the home occupied by C and his brothers. While M was busy in the kitchen, the applicant was in the lounge room with C, who was naked in front of the heater after a bath. The applicant offered to dry C’s hair and in the course of doing so, he fondled C’s genitals for 10 to 15 minutes. C demanded that the applicant cease and he removed himself from the applicant’s presence.

DIRECTION 41

12. The Preamble to Direction 41 sets out the objective of the Act in regulating the presence of non-citizens in Australia. Paragraph 5.1 (2) provides that:

... 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.

Sub-paragraph (3) provides that:

The Government is especially mindful to protect the safety of the community's more vulnerable members, including minors...

13. Paragraph 5.2 provides general guidance and requires all decision-makers exercising powers under s 501 of the Act to apply Direction 41. Sub-paragraph 5.2 (2) provides that a decision-maker needs to consider both:

(a) the nature of any harm that the person concerned may cause to the Australian community; and
(b) the risk of that harm occurring.

14. Sub-paragraph 5.2 (4) provides that:

In some circumstances it may be appropriate for the Australian community to accept more risk where the person concerned has, in effect, become part of the Australian community owing to their having spent their formative years, or a major portion of their life, in Australia.

15. There is no dispute that the applicant fails to pass the character test. Thus, the discretion to cancel the visa is enlivened. In exercising the discretion, the primary and other considerations in Part B of Direction 41 must be taken into account.
16. The primary considerations are found at paragraph 10 and comprise:

(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 interest of the child, as described in the Convention on the Rights of the Child (CROC); and
(ii) the non-refoulement obligations...

17. Paragraph 11 of Direction 41 sets out other considerations that must be taken into account if they are relevant. They include family ties and the nature and extent of relationships in Australia, the person’s age and health, links to the country to which the person will be removed, hardship by the person and their immediate family members and the person’s level of education.

PRIMARY CONSIDERATIONS

PROTECTION OF THE AUSTRALIAN COMMUNITY

18. The protection of the Australian community requires the decision-maker to have regard to the Government's objectives set out in paragraph 5 of Direction 41, namely, to protect the community from unacceptable risks of harm as a result of criminal activity, particularly the more vulnerable. In assessing the level of risk of harm to the Australian community, if a person is permitted to remain, the decision-maker must take into account the seriousness and nature of relevant conduct and the risk that the conduct may be repeated.

SERIOUSNESS OF NATURE OF THE RELEVANT CONDUCT

19. Paragraph 10.1.1 (1) of Direction 41 provides that crimes of violence or threat of violence are of special concern to the welfare and safety of the Australian community. Crimes involving violence against vulnerable persons are especially abhorrent to the whole community. Minors are specifically identified as vulnerable persons. Paragraph 10.1.1(2) provides that offences and conduct that are considered serious include all offences perpetrated against a child (particularly sexually-based offences), rape and any other sexually based offences. The applicant has been convicted of 19 counts of sexually-based offences against three children. These offences are of a particularly serious nature as defined in paragraph 10.1.1.
20. Paragraph 10.1 (3) of Direction 41 compels consideration of the sentence imposed. The extent of the person's criminal record, including the number and nature of offences, the period of time between offences and the time elapsed since the most recent offence must also be considered. The applicant was sentenced to a term of imprisonment of 8 years and 7 months. However, he was released on parole after serving 5 years and 9 months. The applicant is registered as a sex offender under s 50 of the Sex Offenders Registration Act 2004 (Vic). His offences are defined as class 1 and class 2 offences under the legislation. Reporting obligations have been imposed on him for 15 years. The length of his registration as a sex offender reflects the seriousness of his conduct and his criminal history.
21. The applicant did not have prior convictions. He has not been convicted of any offence since he committed the 19 offences (concluding in 1994) which have caused the Minister's delegate to make the decision under review in these proceedings. The applicant was in prison from 2005 until 18 November 2010 and is currently in immigration detention. He was due to be released on parole which suggests that there were no adverse assessments of him while he was in prison.
22. In assessing the seriousness and nature of the applicant’s conduct, Direction 41 also compels me to consider other relevant information such as judicial comments, psychological reports, pre-sentence reports, parole assessments, authoritative assessments, victim impact statements and mitigating factors. In her sentencing remarks, Judge Hogan said at [45-46]:

Mr Oliver, the conduct of which the jury has found you guilty against all three children of the one family is of the utmost seriousness. As I have said, it involves a grave breach of trust towards children who were already in a vulnerable family situation and who apparently looked up to you as a caring older relative. Part of your offending occurred in the ... home with other family members not far away. It was brazen conduct which violated the feeling of safety which a child should have in his own home. As I have already said, other parts of your offending conduct as found by the jury show an appalling breach of trust because they occurred when the ... boys were specifically in your care. You have shown no remorse for your conduct.
The distress, particularly of R, was very evident when he was giving evidence at trial. Your self indulgent, abhorrent conduct as found by the jury has had long lasting adverse psychological effects upon all three of your victims, M and the family unit. On your application the original presentment was split and ..., M, R and A were required to give evidence in both trials. C was required to give evidence in the second trial. (Exhibit R1, p74)

23. I agree with the description of the applicant's conduct as recorded by Judge Hogan. The Australian community would agree that the offences committed by the applicant are revolting and are of a particularly disgusting nature. Some of the offences occurred when the children were in their own home and the applicant was a guest. The children were entitled to believe that the applicant, a relative, could be trusted. He breached their trust on 19 occasions.
24. The nature of the offences has been described earlier. However, the impact on the children, now adults, is also worthy of comment.
25. In her sentencing remarks, Judge Hogan (commencing at [33]) stated that R suffered fear and confusion, his life was violated and his childhood was taken away. He continues to recall the events, his sleep is affected, he has a fear of male public toilets, is suspicious of other males and is over protective of his own two boys. (It is believed that R is now aged 31).
26. The applicant’s conduct affected A’s sexual development as a teenager, it interfered with his capacity to enjoy the emotion and intimacy of the relationship with his fiancé, he does not trust persons and fears for his own children. (It is believed that A is now aged 29).
27. C has dreams, is scared and cries when he recalls the intrusion caused by the applicant upon him. (It is believed that C is now aged 25).
28. Judge Hogan concluded that the consequences endured by R, A and C are foreseeable and understandable and the psychological consequences of the applicant's conduct are a common aftermath of such violation (at [36]).
29. The impact on M, the victims’ mother, has also been profound. In her victim impact statement, she reported that when she recalls the events that her children endured, she cries and she feels as if she has failed them by not protecting them. She observes pain and hurt in her children and she does not trust males who associate with her sons and her grandsons. Her personal relationships with males have been adversely affected. She has also broken links with her own family and although she previously loved the applicant's mother as if she were her own, she no longer has any association with her (at [37]).
30. The offences occurred during a period of time when the children were having problems in their home. Their father was an alcoholic who physically and verbally abused his wife and children. R and A were engaged in counselling at their school because of behavioural issues. Sexual abuse of a child is serious. However, the applicant’s conduct is even more deplorable because he abused three children who were already vulnerable.
31. In her sentencing remarks Judge Hogan referred to mitigation as a relevant issue when considering sentence. She decided at [47]:

There is no material before me which in any way mitigates the actual circumstances of your offending as found by the jury as distinct from the material as to your absence of offending, both before and afterwards. It is, indeed, difficult to reconcile the evidence of your good character given by Mr Berenger and Mr Oorlaff and the evidence that you are apparently a devout Catholic and regular church-goer with your abdominal [sic] behaviour as found by the jury in committing these crimes.

32. I am also required to have regard to any mitigating factors presented by the applicant. I can see nothing from the documents tendered, including the statement of the applicant or his witnesses or from the evidence heard in these proceedings that would point to any mitigating factor.
33. In his declaration sworn on 30 November 2010 (Exhibit A1), the applicant stated that between 1990 and 1994 – when the offences occurred – he was experiencing a downturn in my life caused by stress, trauma and frustration and also financial difficulties. The applicant reiterated this explanation during cross-examination.
34. Records from the Victoria Police, Ararat Prison, Corrections Victoria and the Department of Justice were before the Tribunal (Exhibit R2). In a document entitled Victorian Intervention Screening Assessment Tool (Exhibit R2, p47), the applicant was asked, What things happened that led to the offence(s)? The answer recorded was:

Mr Olliver (sic) advises he had just broken up with his girlfriend of many months and was therefore depressed and anxious and seeking sexual gratification. He was also financially challenged at the time. He advises: “I was going through a very bad period.” He advises he was living with other cousins in Dandenong at the time as he had to move in with them due to financial hardship as he lost a fortune on a “property deal gone wrong.” Basically he was very stressed and looking for an outlet for that stress. The victims became that outlet.

35. I did not have before me any evidence from qualified psychologists or psychiatrists who might explain the connection between the emotional events occurring and affecting the applicant and the commission by him of the offences. The applicant has sought to explain that his conduct was the result of the stress and emotional difficulties associated with financial challenges and a relationship breakdown. He said he was seeking sexual gratification. Tragically, that gratification – if it did occur – was obtained by preying upon vulnerable children who trusted him and to whom he was related. I do not accept the proposition that his financial stress and the emotional difficulties resulting from a relationship breakdown constitute mitigating factors capable of diluting the seriousness and nature of his conduct.
36. The applicant described his conduct as naïve and stupid and admitted there was no excuse for his actions (Exhibit R2, p59 and 66). He stated that he only has himself to blame and takes full responsibility for his actions (Exhibit A1). These sentiments are long over due. The applicant pleaded not guilty to the crimes he was charged with and has maintained his innocence until recently. The material before the Tribunal indicates that the first time the applicant admitted his crimes was in a letter dated 12 February 2010 when he was faced with the prospect of his visa being cancelled. However, in that letter, the applicant writes, Although I have committed a crime I know I am and will continue to be a person of good character... While he appears to appreciate the significance of his conduct on his visa status, I am not satisfied that he appreciates the impact he has had on his victims. I think the applicant’s expression of remorse and admission of the offences is motivated by his own self-interest. His admission of committing a crime is a gross understatement. The applicant’s conduct is of a very serious nature and I do not accept his explanations for offending mitigate the serious nature of his conduct.

RISK OF CONDUCT BEING REPEATED

37. Paragraph 10.1.2 of Direction 41 requires an assessment of whether there is any risk of the applicant re-offending. The factors to be considered in this part include whether there is a recent history of convictions, evidence of the extent of rehabilitation achieved and the prospect of further rehabilitation and whether there has been a breach of any judicial orders, including undertakings given or conditions imposed in connection with parole, bail or suspended sentences.
38. The applicant does not have any convictions other than the 19 offences for which he was convicted and which has given rise to these proceedings. There is no evidence that he has breached any judicial orders or undertakings or conditions imposed in connection with parole, bail or suspended sentences.
39. Judge Hogan was concerned about the applicant’s prospects of rehabilitation and in her sentencing remarks she recorded (at [48]):

...One can only hope that the lack of subsequent offending does bode well for rehabilitation, although I here point out that effective rehabilitation involves an acknowledgement of one's wrongdoing, insight into the reason for one's offending and a determination to address those issues. None of these features is apparent in your case, given your pleas of not guilty and your twice swearing on oath that you did not commit the offences.

40. I too have concerns about the applicant’s prospects of rehabilitation. The applicant denied the allegations made against him when interviewed by the police. He pleaded not guilty to all of the offences. He also gave sworn evidence in both trials denying the offences.
41. In the records found within Exhibit R2, the applicant notified prison authorities at Ararat on 18 March 2005 – two weeks after he was sentenced - that he had no part in the offences for which he was convicted and alleged that the victims had made it all up to get back at him as he turned down his cousin who had a thing for him in 1993 (p334). Four days later on 22 March 2005, at the Port Phillip Prison, the applicant gave a similar explanation. It is recorded that he denied the offences and said that the allegations were made against him after he refused the sexual advances of a female cousin some years earlier, as a means of payback (p185). Seven days later on 29 March 2005, in an interview with officers of the Correctional Services Commissioner, the applicant is recorded as saying that he is innocent and that the victims made it up to get back at him (p85).
42. On 26 June 2005 (p108) and again on 24 September 2005 (p110), the applicant insisted he was innocent and the allegations were fabricated. When these entries were put to the applicant during cross-examination, he said he had no recollection of those explanations.
43. In the letter of 12 February 2010 the applicant wrote to the Department (G3, p90). This is the letter where for the first time the applicant admitted committing the crimes for which he was convicted. Although he acknowledged committing a crime, he did not identify it. The applicant made submissions in response to the intention to cancel his visa on character grounds and indicated that he wanted to apply for Australian Citizenship. He wrote that since living in Australia my conduct and behaviour has been nothing less than exemplary as my supporting documentation will show. This letter concerns me for two reasons. Firstly, the applicant makes an admission 16 years after the crimes were committed. The admission is made in the course of making submissions to the Department in response to the intention to cancel his visa. Secondly, the applicant’s apparent belief that since living in Australia, his behaviour has been exemplary. If he truly believes that to be so, I can not be satisfied that he has in fact rehabilitated and I remain concerned that he is at risk of re-offending.
44. On 6 October 2010 during the parole assessment, the applicant is recorded as taking full responsibility for his offending behaviour (Exhibit R2, p59 and 66). Similarly, in his declaration sworn on 30 November 2010, he deposed that he takes full responsibility for his actions, that the crimes he committed were atrocious, that he was sorry and remorseful to the victims and sought forgiveness. He also recorded that when released from prison there will never be any more victims, nor will I hurt or cause any pain or suffering to anyone. I have learnt a valuable lesson from all the mistakes I have made (Exhibit A1, at [25]).
45. As Judge Hogan said in her sentencing remarks, rehabilitation requires an acknowledgement of one’s wrongdoing. I agree. He first admitted of committing the offences in February 2010 when he acknowledged that his visa may be cancelled and indicated an intention to apply for citizenship. He decided to take responsibility for his actions in October 2010 at the time he was due to be released on parole. He again took full responsibility and described his offences as atrocious in November 2010, 14 days prior to the hearing of this review. This causes me to doubt the sincerity of his admissions and whether any rehabilitation has been achieved.
46. The applicant has not completed a sex offender program. During the hearing, he showed a willingness to complete a program if permitted to stay in Australia. He explained that it was not offered to him because he was considered to have a low to moderate risk of re-offending and it was therefore, not regarded as a priority. It is difficult to reconcile this evidence with the statements he made to authorities detailed below.
47. Despite the applicant’s positive attitude to rehabilitation during the hearing, records of conversations and interviews he had with prison authorities causes me some concern. A management plan prepared on 29 March 2005 states that he did have a willingness to participate in sex offender program (Exhibit R2, p105). However, on the same day he is recorded elsewhere as maintaining his innocence (p85). Furthermore, on 18 March 2005, 11 days earlier, during an interview at Ararat prison, he is recorded as being horrified at the thought of sex offender treatment (p335). On 18 June 2007 during a quarterly interview, the applicant is recorded as saying ...that if the appeal is unsuccessful he will participate in SOP. He admits that this is parole driven (p124).
48. The inconsistency in the applicant’s statements to the prison authorities and his motives for indicating a willingness to complete the sex offender is less than impressive.
49. Despite his remorse, acknowledgment, assurance that he will not hurt again, and willingness to complete a rehabilitation program, there is no record of the applicant requesting such a program or counselling. While incarcerated, he entered a quit smoking program and a positive lifestyle program. He also requested that he be admitted into courses involving hospitality, kitchen work, maintenance and pottery (Exhibit R2, p105). However, there is no record of him requesting a program aimed at his offending.
50. It was almost five years after sentence, seven years after first being interviewed by police and 16 years after he last offended before he admitted the offences. His admissions in October and November 2010, shortly prior to release from prison and the hearing of this review, do not reassure me that the applicant has achieved rehabilitation. Prison authorities as part of the screening assessment, assessed the applicant as moderate to low risk. I accept that assessment. It amounts in my view to a finding by relevantly qualified persons that the Australian community is at risk of the applicant re-offending. It is not known what is meant by the case officer recording that the applicant is not required for the sex offender program. The assessment might have been made because of the level of risk against which the applicant has been assessed. The relevant authorities decided, rather than enter into the sex offender program within a matter of weeks prior to release from prison, it was preferable that he be subject to environmental management post release (Exhibit R2, p52).
51. The applicant is a registered sex offender. Certain obligations will be imposed on him for 15 years including notifying police of his whereabouts. I accept that this may reduce the likelihood of the applicant re-offending.
52. Implicit in Judge Hogan’s remarks (at [41] above) is the need to acknowledge or demonstrate genuine remorse. Evidence of it was not apparent until the applicant expressed his regret in his comments in 2010 to prison authorities, his declaration lodged in these proceedings and his evidence at the hearing where he became emotional, particularly when he spoke about the pain endured by his family, especially his mother.
53. Accordingly, the first of the primary considerations, namely the protection of the Australian community under the criteria at 10.1, when considered against the applicant's evidence and the documents lodged in these proceedings, satisfies me that considerable weight should be attached in favour of cancelling the applicant’s visa.
54. The offences that he committed were numerous and committed over a lengthy period of time upon vulnerable children to whom he was related and when he was in a position of trust. The offences, being sexually-based offences against children are regarded as serious and that description is appropriate. The victims are now adults and they continue to endure ongoing emotional difficulties. Their mother, M, has also been severely affected by the applicant’s conduct.
55. I am not satisfied that the applicant has been sufficiently rehabilitated to give me confidence that he will not re-offend. His initial denials of the offences, the excuses that he proffered when protesting his innocence after conviction and his reluctance, at least initially, to enter into a sex offender program does him no credit. His description since living in Australia my conduct and behaviour has been nothing less than exemplary, is a gross misrepresentation, it cannot be taken seriously, it is false, and it causes me to query whether he really does have any insight into the gravity of the offences that he committed. His admissions came 16 years after the offences and within a short time of anticipated release from prison and this review. I doubt the sincerity of his admissions and question his motives. I am not satisfied that he has any true insight into the offences nor does he appreciate the impact his behaviour had on his victims. His previous general conduct satisfies me that there is a risk of him re-offending. Indeed, he has been assessed as moderate to low risk. This indicates that the Australian community is at risk. There is nothing from appropriately qualified persons to otherwise re-assure me.
56. Some credit should be given to the applicant for not having offended during the first four or five years in Australia and after 1994. Additionally, their is no evidence of him breaching any Court orders or undertakings and conditions in connection with parole and bail. While some credit is deserved, it is not sufficient to diminish the considerable weight which I am satisfied should be attached in favour of visa cancellation.

WHETHER APPLICANT WAS A MINOR WHEN HE ARRIVED IN AUSTRALIA

57. The primary consideration in paragraph 10.2 of Direction 41 requires the decision-maker to consider whether the person was a minor when they began living in Australia. There is no dispute that the applicant arrived in Australia at the age of 21. Therefore, he did not spend his formative years in Australia. The applicant’s representative submitted that this consideration was irrelevant. I disagree. I am required to have regard to all of the primary considerations as directed in paragraph 10(1) of Direction 41. This consideration is not irrelevant. It weighs in favour of cancelling the applicant’s visa.

LENGTH OF TIME THE APPLICANT HAS BEEN ORDINARILY RESIDENT IN AUSTRALIA

58. The third primary consideration acknowledges that the longer the period of residence in Australia, the greater the likelihood of significant ties to the Australian community. Favourable consideration is to be given the longer the person has ordinarily been resident prior to engaging in criminal activity (paragraph 10.3 of Direction 41).
59. The applicant was residing in Australia between 4 and 5 years before he first offended. He was aged between 25 and 26. A note appended to paragraph 10.3 provides by way of example that a period of residence of 10 years prior to first engaging in criminal activity would be an important consideration weighing against the visa cancellation. Equally, a period of residence of four or five years in Australia before engaging in criminal activity and then continuing that activity for a subsequent period of two years bears negatively upon the applicant. I attach some weight to the relatively short period of time that the applicant resided in Australia before he first offended. While ordinarily residing in Australia for 4 or 5 years would have allowed the applicant to establish some ties to the Australian community, I do not accept that 4 or 5 years would have allowed him to establish significant ties. He was granted a visa, being permission to reside here. He breached that permission. In the circumstances, the length of time that the applicant was ordinarily residing in Australia prior to offending weighs in favour of exercising the discretion to cancel his visa.

INTERNATIONAL OBLIGATIONS

60. Paragraph 10.4 of Direction 41 obliges the decision-maker to consider any relevant international obligations, including the best interest of a child and non-refoulement obligations. Neither is applicable to the applicant. He does not have children of his own. He is not responsible for any child nor is any child dependent upon him. The applicant does not rely on the conventions and protocols referred to at paragraph 10.4 and I am satisfied that they are not relevant to him.

OTHER CONSIDERATIONS

61. Direction 41 sets out other considerations that a decision-maker must take into account when deciding whether to exercise the discretion to cancel a visa. Paragraph 11(1) provides that these considerations are not primary but may be relevant and if so, must be considered. Paragraph 11(2) directs that the considerations within this part should be given less weight than that given to primary considerations.

FAMILY TIES

62. The applicant is presently 43 years of age. He is not in a marital or defacto relationship. He does not have children of his own. His mother, sister and two brothers reside in Melbourne and they are either permanent residents or they have obtained citizenship.
63. The applicant's mother lodged a Statutory Declaration (Exhibit A6) and gave evidence in these proceedings. I accept that she will miss her son in the event that he is returned. She had been anticipating that he would be released from prison and that she would enjoy Christmas with him this year. I accept also that she would continue to love and emotionally support him. Similar evidence was given by the applicant's sister, Carmelita.
64. The applicant said that it was his intention, upon release, to financially support his mother. He has not been in a position to do so since he commenced his term of imprisonment in 2005. Mrs Oliver lives with Carmelita who supports her financially. She also cares for Mrs Oliver who is elderly and unwell. I accept that Mrs Oliver might travel to Sri Lanka to visit her son in the event that he returns. I also accept that by reason of her age and ill health that travel may present difficulty. Similar considerations would apply to the applicant's sister and other relatives and friends.
65. Alternatively, there would not be any prohibition on the applicant communicating with his mother and other relatives and friends either by telephone, letter, email or Skype. Insofar as the latter communication processes are concerned, I acknowledge that such facilities may not be immediately available to the applicant if he were to return.

HEALTH

66. Apart from prison reports indicating that the applicant suffers migraine headaches from time to time, there is no evidence that he suffers from any other illness or injury. There is no evidence which would permit me to find that appropriate medication for relief of migraines is not available in Sri Lanka.

LINKS TO SRI LANKA

67. In his declaration, the applicant said that he has no family in Sri Lanka (Exhibit A1). His only link to that country was his father, who passed away in 2002. Thus, all his remaining relatives are now in Australia. I accept that in the absence of friends or relatives in Sri Lanka, the applicant will not have the support he has in Australia and he may struggle.

HARDSHIP

68. Paragraph 11(3)(e) requires me to consider the hardship that will be experienced by both the applicant and his immediate family should he be required to return to Sri Lanka. As stated earlier, his family are not financially dependant on him and his mother is being cared for by Carmelita, the applicant’s sister. If the applicant is separated from his family, travel overseas may be difficult and inconvenient. I do not doubt that a separation will cause hardship, particularly on his mother.
69. The applicant said in evidence that if forced to return to Sri Lanka, he will have communication problems. Since his arrival in Australia, he has communicated in English. There was evidence that he has largely forgotten the Sinhalese language but is capable of mastering a few words. He also said that when he was a resident of Sri Lanka, he communicated mainly in the English language. Most of his schooling and employment in Sri Lanka involved use of the English language. Reports made available from the respondent indicate that whilst it is the minority language, English is spoken by many persons, newspapers are published in the English language and there is electronic media broadcasting in the English language. I acknowledge that the applicant will have some language difficulties initially but I would be confident, because he spent the first 20 years of his life in Sri Lanka, that communication in and comprehension of the Sinhalese language will not expose him to an insurmountable hurdle.
70. I accept also that being returned to Sri Lanka will expose him to a country which has probably changed since the time that he left and friends and associates that he previously had may be difficult to locate.
71. One of the witnesses called in support of the applicant, Anthony Griffs, is the proprietor of Binq Pty Ltd which manufactures timber windows and doors. He said he has known the applicant since 1986 and has offered him employment if his visa is not cancelled. Therefore, in the event that the applicant remains in Australia he will have employment, he will enjoy the benefits of receiving an income and will achieve his goal of being able to financially support his mother.
72. I accept that finding employment is Sri Lanka may not be as easy. Although the applicant may have difficulty obtaining employment should he be returned to Sri Lanka, he does have considerable and broad skills to which an employer may be attracted. The applicant was engaged as an electronic technician in Sri Lanka. In Australia he has worked as a press operator and die setter, as a service technician for a vacuum cleaner company and as a supervisor. He also has experience in the hospitality and plastics industry. While incarcerated, he worked as a cleaner; he also completed courses in first aid, occupational health and safety, and information technology.
73. Whilst all of the applicant's skills may not readily be transferable to Sri Lanka, it is not as if the applicant is without skills. He is also literate and articulate.
74. On balance there are a number of matters affecting the applicant to which favourable consideration should be given.
75. Being returned to Sri Lanka will disrupt the potential of reunion with his family members. I accept that the applicant has a genuine love for his mother and she has the equivalent feelings. The opportunity for that relationship to resume may have been reasonably anticipated upon the applicant being released from gaol. In the event the applicant is returned to Sri Lanka that expectation will be denied and considerable unhappiness will be felt by the applicant and his mother. However, that relationship has been denied for the last five years and nine months, save for weekend visits by his mother and sister to the applicant in gaol.
76. The applicant has been promised employment in the event that he is permitted to remain in Australia. I accept that he may have some difficulty, at least initially, in obtaining employment in Sri Lanka. However, I am satisfied that his vocational skills will eventually permit him to obtain employment and therefore, income.
77. The matters to be considered under paragraph 11 of Direction 41 do not have the same status and are to be given less weight than the primary considerations.

CONCLUSION

78. The purpose of the Act is to regulate those entering and remaining in Australia so as not to expose the Australian community to an unacceptable risk of harm. I accept that the applicant has been assessed as low to moderate risk. However, he remains a risk. Given the seriousness and nature of the applicant’s crimes and having regard to the consequences and degree of harm that will result should that risk materialise, the risk, albeit low to moderate, is unacceptable.
79. In some circumstances, it may be appropriate for the Australian community to accept more risk. However, I am not satisfied that this is such a case. The applicant has not spent his formative years here. He has spent half of his life in Australia however, almost 6 years was spent in gaol. The remaining length of time spent in Australia does not support a finding that he has become part of the Australian community.
80. In conclusion, I am satisfied that the applicant and his family may struggle if the applicant is forced to return to Sri Lanka. Thus, the other considerations which I am obliged to have regard to, do give some weight to allowing the applicant to remain in Australia. However, the weight to be attached to the primary considerations is far greater and the scales remain firmly tipped toward visa cancellation.
81. In the circumstances, I am satisfied that the decision under review should be affirmed.

I certify that the eighty-one [81] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr John Handley, Senior Member

Signed: Olympia Sarrinikolaou

Legal Assistant

Date of Hearing 14 December 2010

Date of Decision 22 December 2010

Counsel for the Applicant Mr B. Gardiner

Solicitor for the Applicant Vernon Da Gama and Associates

Counsel for the Respondent Ms J. Cumming

Solicitor for the Respondent Clayton Utz Lawyers