A Nepalese child sex offender has been given his permanent visa back after a tribunal ruled his ties to Australia outweighed the need to protect the community, and found he would face difficulties if deported because he “considers himself culturally Australian”.
Akash Shrestha, 26, was sentenced to four years’ imprisonment in March 2024 after pleading guilty to two counts of sexual intercourse with a child – his friend’s 15-year-old sister – and was released earlier this year after completing his non-parole period.
He was then was taken to immigration detention as his visa was automatically cancelled due his conviction, and his application for the cancellation to be revoked because “he had no family or connections in Nepal and he considered Australia home” was rejected.
But last week the Administrative Review Tribunal (ART) overturned the mandatory cancellation under a controversial ministerial direction that has been kept in place by immigration minister Tony Burke for almost two years despite it being used to allow dozens of serious criminals to stay in Australia.
Direction 110 requires the tribunal take into account community protection, family violence, ties to Australia, the best interests of minor children, and community expectations, and Senior Member Alison Murphy found at a hearing in Melbourne that the strength, nature and duration of Shrestha’s ties to the country outweighed the factors.
She also ruled that deportation would have “significant” legal consequences for Shrestha, and that he would face impediments in establishing himself and maintaining basic living standards if he was forced to return to Nepal.
The tribunal heard that Shrestha was diagnosed with “generalised anxiety disorder; persistent depressive disorder; moderate cannabis use disorder; mild alcohol use disorder and mild (cocaine) stimulant use disorder” at the time of the offending, which occurred after a night of heavy drinking and drug use.
A more recent report prepared for the tribunal found he had “Depressive Disorder (severe and recurring) but is in a state of full remission from his substance use disorder(s)”.
Consultant Psychologist Tim Watson-Munro told the tribunal Shrestha’s offending was driven by “untreated substance abuse, severe depression and anxiety, poor judgment and immaturity, coupled to opportunity, in the context of him knowing the family and being at a party”, and rated his risk of reoffending as “trending towards low”.
Ms Murphy said Shrestha’s “sexual offending caused very serious harm to the victim and her family” and that if he reoffended in a similar manner it would “cause very serious harm to members of the Australian community”, but found community protection weighed only moderately against restoring the visa.
The tribunal heard Shrestha came to Australia as a nine-year-old, and had been in Australia for 13 years at the time of the offending, and Ms Murphy noted he “has strong ties to his immediate family and lesser ties to the community”, which she said weighed strongly in favour of revoking the cancellation.
Ms Murphy found “the language and cultural barriers for [Shrestha] if returned to Nepal are substantial”, as he has not lived there since he was give, is not fluent or literate in Nepali, and “considers himself culturally Australian”.
She also said Shrestha would “face impediments on account of his ongoing mental health conditions and treatment needs” if deported, and noted that a delegate for Mr Burke acknowledged the “lack of social and economic supports” in Nepal weighed in favour of revoking the visa cancellation.
Ms Murphy said in her decision that while she had given the consideration of the protection of the Australian community greater weight than the other primary considerations, the combined weight of the other considerations meant she had to restore the visa.
“In particular the primary considerations of the strength, nature and duration of the applicant’s ties to Australia, together with the considerations of the legal consequences of the decision and impediments on return, cumulatively weigh against cancelling his visa,” she said.
In May the ART relied on Direction 110 to allow an African refugee who sexually abused his nine-year-old niece to avoid deportation because he would lose access to NDIS support for his intellectual disability if deported back to Sierra Leone.
Other immigrant criminals who have been allowed to stay in Australia this year include a Chinese wife-killer, an Ethiopian rapist, an obese homosexual Indian paedophile, an Iranian drug smuggler, a killer Sri Lankan driver, and a Sudanese refugee who was jailed over the fatal stabbing of an Australian teenager.
Mr Burke has the ministerial power to personally cancel visas, a decision which cannot be challenged at the ART, and has done so multiple times since November for political reasons, resulting in the deportation of South African civil engineer Matthew Gruter for attending a peaceful police-approved protest, and the detention of Ukrainian refugee Yan Zakharin for his alleged role in an incident at Camp Sovereignty in Melbourne.
Header image credit: Pexels.
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