Baath and Minister for Immigration and Border Protection (Migration)

Baath and Minister for Immigration and Border Protection (Migration) [2018] AATA 2300 (19 July 2018)
Division:GENERAL DIVISION
File Number(s): 2017/2673
Re:Mandeep Kaur Baath
APPLICANT

Minister for Immigration and Border ProtectionAnd
RESPONDENT

DECISION
Tribunal:Member Richard West
Date:19 July 2018
Place:Melbourne

The Tribunal affirms the decision under review.
........................................................................
Member
Catchwords
MIGRATION – refusal of application for Partner visa – criminal offences – driving under the influence of alcohol – character test – Direction 65 – discretionary factors – protection of the Australian community – best interests of minor children – expectations of the Australian community – impact on family members
Legislation
Migration Act 1958
Cases
CBYO v Minister for Immigration and Border Protection (2018) AATA 91
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 128 ALR 353
Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458
Secondary Materials
Direction No. 65 – Migration Act 1958 – Direction under Section 499 – Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA
Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)
REASONS FOR DECISION
Member R West
19 July 2018
INTRODUCTION

This is an application for the review of a decision of a delegate of the Minister for Immigration and Border Protection (the Respondent) made on 6 April 2017 to refuse to grant a Partner (Provisional)(Class UF) visa to Mr Khushwant Singh Baath (Mr Baath) pursuant to s.501(1) of the Migration Act 1958 (the Migration Act). The delegate was not satisfied that Mr Baath passed the character test for the purpose of s.501(6)(d)(i) of the Migration Act. This application is made by Mrs Mandeep Kaur Baath (the Applicant), who is the wife of Mr Baath.
The hearing was conducted on 6 April 2018. The Applicant was represented by Mr Guy Gilbert of counsel, instructed by ARLaw Services, and the Respondent was represented by Ms Rachel Noronha of Clayton Utz. The hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
For the reasons that follow, I have decided to affirm the decision of the delegate.
BACKGROUND
Mr Baath is an Indian national and is currently resident in India. He entered Australia in January 2007, having been granted a student visa. His student visa was cancelled by the Minister on 16 March 2010 due to the lack of progress in his studies. Mr Baath then remained in Australia unlawfully until 17 January 2015, when he returned to India. The Applicant and Mr Baath were married in India on 31 January 2015.
The delegate refused the application for a Partner (Provisional)(Class UF) visa for Mr Baath under s.501(1) of the Migration Act, having found that he did not pass the character test under s.501(6)(d)(i). The Applicant seeks a review of that decision.
LEGISLATIVE FRAMEWORK
Section 501(1) of the Migration Act provides that the Minister may refuse to grant a visa to a person if that person does not satisfy the Minister that they pass the character test.
Section 501(6) relevantly provides that for the purpose of s.501(1), a person does not pass the character test if any one or more of the eleven circumstances set out in s.501(6) applies to the person. In the present case the relevant circumstance is set out in s.501(6)(d)(i):
“..in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia;…”
If a visa applicant does not satisfy the Minister that they pass the character test, the Minister retains a discretion under s.501(1) to refuse or grant the visa. The exercise of the discretion is subject to Ministerial Direction 65 (the Direction). Section 499(2A) of the Migration Act mandates that a person or body, such as the Tribunal, having powers or functions under the Act must comply with the Direction in making its decision.[1]
[1] Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591.
Mr Baath’s convictions
From January 2007 to January 2015 Mr Baath had the following convictions while in Australia[2]:
[2] See T3.
·3 October 2008: driving under the influence of alcohol – fined $800 and licence disqualified for 6 months concurrent;
·30 December 2008: no authority to drive – disqualified/suspended – fined $400 and licence disqualified for 9 months cumulative;
·20 January 2009: using forged or altered vehicle licence – fined $200 and licence disqualified for 3 months concurrent;
·20 January 2009: false name (driver) – fined $250 and licence disqualified for 3 months concurrent;
·20 January 2009: false name and address – fined $250 and licence disqualified for 3 months concurrent;
·20 January 2009: exceed 0.08 % - fined $1,200 and licence disqualified for 7 months concurrent;
·20 January 2009: no authority to drive – disqualified/suspended – fined $1,200 and licence disqualified for 9 months cumulative;
·29 June 2011: exceed 0.08 % - fined $1,000 and licence disqualified for 8 months;
·2 May 2014: giving false personal details to police – breach of police order – each charge fined $300;
·2 May 2014: no authority to drive – never held and disqualified – fined $1,000 and licence disqualified for 9 months cumulative; and
·2 May 2014: attempt to drive under the influence of alcohol – fined $2,100 and licence disqualified for 30 months concurrent.
In addition to the record of convictions against Mr Baath, the Minister also raised two further allegations of dishonest conduct by Mr Baath while in Australia. Firstly, that he made a false declaration to immigration authorities on his Incoming Passenger Card when entering Australia on 17 November 2008 by failing to disclose his criminal conviction for driving offences on 3 October 2008. Secondly, that Mr Baath remained in Australia unlawfully from the cancellation of his student visa on 16 March 2010 until his departure from Australia on 17 January 2015, a period of almost 5 years.
In addition, the Minister referred to two restraining orders made against Mr Baath on 27 April 2014 and 5 September 2010, which were tendered in evidence having been produced on summons by the Western Australian Police.
EVIDENCE
In conducting the review I have had regard to the documents produced to the Tribunal by the Respondent pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents) and to the following:
·the oral evidence of Mr Baath, Mandeep Kaur Baath, Rupinder Tiwana, Jaswant Singh Tiwana and Gurpreet Singh;
·the expert evidence of Dr Patrick Newton (forensic psychologist);
·Exhibit R-1 being pages 2-20 (inclusive), 23-39 (inclusive), 42-51(inclusive) and 52-56 (inclusive) of the documents produced on summons by the Western Australian Police;
·Exhibit A-1 Statement of Mandeep Kaur Baath;
·Exhibit A-3 Statement of Rupinder Tiwana;
·Exhibit A-4 Statement of Jaswant Singh Tiwana;
·Exhibit A-5 Statement of Gurpreet Singh; and
·Exhibit A-6 Report of Dr Patrick Newton dated 13 October 2017.
The Applicant also produced to the Tribunal two further documents: a birth certificate of Seerat Kaur (provided by email to the Tribunal on the day of the hearing) and a collection of photographs (produced by the witness Mandeep Kaur Baath in the course of giving her evidence) (marked for identification purposes as Exhibit A-2). The Applicant sought to tender both documents, which had not been provided to the Respondent at least two days prior to the hearing, in evidence. The Respondent did not oppose the admission of the documents. Both parties noted s.500(6J) and (6H) of the Migration Act and submitted that neither were applicable to the documents.
Section 500(6J) of the Migration Act relevantly provides that in considering an application under s.501 for a review of a decision which relates to a person in the migration zone, the Tribunal must not have regard to any document submitted in support of the person's case unless a copy of the document was given to the Minister at least two business days before the Tribunal holds a hearing. Section 500(6H) has a similar provision relating to oral evidence.
In this case the application is made by Mrs Mandeep Kaur Baath, an Australian citizen who was in Australia at the time she made the application. The Applicant seeks a Partner (Provisional) (Class UF) visa for her husband, Mr Baath, and the application therefore relates to Mr Baath. Mr Baath left Australia on 17 January 2015 and, at all relevant times, was not in the migration zone. Accordingly, I am satisfied that s.500(6J) does not apply and I accept the documents into evidence.
Witness evidence
Mr Baath
Mr Baath adopted the statements set out at pages 87-89 of T3 and pages 317-319 of T11 as true and correct.
Mr Baath gave evidence that he first met his wife in person in India on 20 January 2015, having spoken to her on the telephone since 23 December 2014. He said that he had been in trouble with the police before meeting his wife. He said that he had not consumed alcohol for three years since returning to India, and he gave evidence that from April 2015 until March 2016 he had undergone counselling. He had gone to a psychologist because he wanted to be rehabilitated and change himself so that he would not repeat his past misconduct. He said that he was now a changed person. He said he had learned in rehabilitation that it was important to quit alcohol as it could cause depression and impair the functioning of his organs. He said that he found the rehabilitation useful and that he could now think clearly. He said it had helped him with motivation and to manage his anger. He said that he was now a completely different person and all he wants to do is look after his children. He said that he will not drink alcohol again.
Mr Baath was cross examined about the incidents which had resulted in his convictions.
In relation to the October 2008 conviction he said that he had been drinking with a friend and became “tipsy” when his friend asked him to drive him home. He conceded that he had felt the effects of the alcohol and knew it would affect his ability to drive, but he was convinced by his friend to drive. He was pulled over and charged by the police.
In relation to the December 2008 conviction, he stated that he had driven while disqualified because he needed to get to work in the Perth CBD and there was no suitable public transport.
In relation to the January 2009 convictions, he acknowledged that he knew that he was disqualified.
Mr Baath acknowledged that being convicted of seven offences by January 2009 is very serious conduct, and that he realised this at the time.
Mr Baath was asked to explain the circumstances leading to the making of restraining orders against him on 5 September 2010 and 27 April 2014. He stated that in the first incident he was sitting in a car with his friend Rosalie when they had a verbal argument. Rosalie telephoned the police, who attended and issued him with a restraining order. In the second incident in April 2014 he said that he had been drinking with friends and he got into an argument with a female friend about whether or not she intended staying at the house. The female friend called the police, and they attended and issued him with a restraining order. He admitted that he was drunk at the time. He said that the police took him to the train station but he didn’t catch the train. Instead, he returned to the house to pick up his car. He was caught by the police the same day and charged with drink driving. He agreed that his actions also breached the restraining order.
He was asked why he lied to the police. He said that he wanted to avoid more trouble and agreed that his lying was deliberate and deceptive.
Mr Baath insisted that the occasions when he was apprehended by the police were the only times he drove under the influence of alcohol.
Mr Baath was also asked to explain why he had not admitted to his criminal conviction on his Incoming Passenger Card in November 2008. He said that he was not aware that the statement he made was false, because he did not realise that a traffic conviction was a criminal offence.
He was also asked to explain why he had remained in Australia unlawfully following the cancellation of his student visa. He gave evidence that he was scared to go to the Immigration Department, as he didn’t know what they would do to him. He admitted that he knew it was wrong, but he was worried that he would be sent to a detention centre.
He was questioned about what he did during the period of almost five years when he was in Australia unlawfully. He said that he did not work because it was unlawful to perform work in Australia, and that he was supported by his friends. He explained that he did housework and mowed the lawns in return for his friends providing him with accommodation, food, alcohol and the use of a car.
He gave evidence that he is currently living with his parents in India and as Sikhs they do not consume alcohol. He said that he has made up his mind to not drink alcohol again in his life. He acknowledged that his resolve has not been tested in Australia. He insisted that he is now a changed person who has learned from his mistakes, and that he will not drink alcohol again.
Other witnesses
Mandeep Kaur Baath
Mandeep Kaur Baath adopted her statement (Exhibit A-1) as true and correct. In the statement she said she has known Mr Baath since 23 December 2014 when they first talked on the telephone, and they later married on 31 January 2015. She said that Mr Baath has attended volunteer alcohol rehabilitation and now does not drink at all. She said that she has visited Mr Baath several times in India with her daughter Asees, where they have spent time as a family for around five to six months. She said that Mr Baath is a responsible, helpful and caring person towards his family. She said that he really helped her with a lot of household tasks and that he cares for and loves Asees. She said that as she now has another baby to care for she will need Mr Baath’s full support and help, as it will be very hard for her to survive with two children.
Mrs Baath gave further oral evidence that she has been in Australia since March 2008 and is an Australian citizen.
She stated that she has recently given birth to a daughter, Seerat, and that Mr Baath is the father. Her daughter Asees is now five years old and has commenced school. Both Seerat and Asees are Australian citizens. She gave evidence that she lives with her two daughters and currently her mother-in-law, Mr Baath’s mother, is visiting from India and is staying with her to assist in looking after the children.
Mrs Baath said that she works as a personal care assistant and is studying at the Institute of Nursing Australia to obtain qualifications as a Division 2 nurse. She expects to complete her studies in June 2018, and hopes to work in a hospital or aged care facility once she obtains registration as a nurse.
Mrs Baath said that Mr Baath has a close relationship with Asees. They speak to each other by video link every day on her iPad. She said that Asees has no relationship with her biological father and that she herself has had no contact with him since July 2013. She said that Asees thinks Mr Baath is her father, and she loves him.
Mrs Baath gave evidence that it would be very hard for her to go back to India if Mr Baath is not granted a visa. Her daughters are used to Australia and Asees is now in school. Mrs Baath said that the weather in India is different and would make her daughters sick. She said that it would be hard for her to go back to India after 10 years.
She also gave evidence that it was difficult for her to raise two children by herself. However, she conceded in cross-examination that she has family in India.
Rupinder Tiwana
Rupinder Tiwana adopted her statement (Exhibit A-3) as true and correct. In the statement she said that she has known Mr Baath since he married her sister and that she had been told about his offences. Ms Tiwana said that he had attended alcohol rehabilitation and is now a changed person. She said she had not seen him consume alcohol and that he helped his wife in the kitchen. Ms Tiwana also said that he was loving and caring towards his step-daughter Asees, and she believes that Mr Baath will fulfil his responsibilities toward his family and keep them happy if he is reunited with them.
Ms Tiwana added in her oral testimony that she did not know Mr Baath when he was in Australia, but had seen him in India in 2015 at his wedding and again in 2016 at her brother’s wedding. She observed that on both occasions she did not see Mr Baath consume alcohol. She indicated that she would be on hand to assist Mr Baath if he were to return to Australia.
Jaswant Singh Tiwana
Jaswant Singh Tiwana adopted his statement (Exhibit A-4) as true and correct.
In the statement he said that he had known Mr Baath since January 2016, having met him when Mr Baath married his sister-in-law. Mr Tiwana stated that he had attended his brother-in-law’s wedding and some other occasions with Mr Baath, and had not seen him drink alcohol. He said that Mr Baath was “a very sincere young fellow” who worried a lot about his family.
He reiterated in his oral testimony that he had not observed Mr Baath consuming alcohol when he had visited him in India, and added that he would be available to assist Mr Baath if he were to return to Australia.
Gurpreet Singh
Gurpreet Singh adopted his statement (Exhibit A-5) as true and correct. In the statement he stated that he had known Mr Baath since February 2007, when they met in Sydney. He said that he had maintained a friendship with Mr Baath over the telephone since Mr Baath moved to Perth in 2008. . He stated that he had visited Mr Baath in Perth, and that Mr Baath had visited him in Sydney. He also stated that Mr Baath had told him that he was attending a gym and working on his health, and was attending a Sikh temple and living with his parents. He described Mr Baath as a respectful, nice and well-behaved person who has changed and is no longer a risk of committing any offences in the future.
Mr Singh added in his oral evidence that he believed Mr Baath is a changed man, and it is very important to him that he comes to Australia to join his family. He said that Mr Baath is now a more responsible person.
Expert Psychologist’s Evidence
The Applicant provided to the Tribunal a report entitled “Confidential Psychological Assessment of Mr Khushwant Singh Baath”, prepared by clinical psychologist Patrick Newton and dated 13 October 2017. Dr Newton was called as a witness at the hearing and his Report was tendered in evidence (Exhibit A-6).
Dr Newton’s assessment was made following an extended consultation of 90 minutes with Mr Baath via Skype video-link on 3 October 2017. He reported that Mr Baath “engaged co-operatively in the assessment process” and “impressed as being forthright and candid throughout the interview.” He concluded that Mr Baath presented as a man whose mental state was essentially unremarkable. He conducted a detailed review of Mr Baath’s consumption of alcohol from 2008 to 2014 and noted that consumption occurred in social contexts. He noted that Mr Baath “sometimes drank at levels that were in excess of accepted health guidelines”, although he had no more than eight standard drinks on each occasion. He further noted that Mr Baath was prone to drink relatively heavily when stressed.

Dr Newton noted that the main negative effects experienced by Mr Baath on account of his drinking were his documented “legal problems” and that “Mr Baath was clear in stating that he had not been involved in arguments or fights when drunk, that he was able to socialise without drinking and that he never missed work because he was hungover or otherwise affected by alcohol.”
He stated that Mr Baath was naïve about the risks associated with alcohol consumption, and had limited insight into ways of engaging in safe drinking practices. Mr Baath had received no education or guidance about how to drink alcohol safely and it was this lack of awareness which underpinned his periodic involvement with hazardous drinking.
Dr Newton noted that Mr Baath had addressed this deficit through participation in extended alcohol-related counselling with a clinical psychologist in India, and that Mr Baath now demonstrated good insight into alcohol-related matters.
On this basis he concluded that it was not appropriate to make a diagnosis of an alcohol-related disorder, and that “the risk of Mr Baath engaging in further episodes of problematic or hazardous drinking is low”.
Dr Newton identified Mr Baath’s marriage and relationship with his step-daughter as protective factors. He accepted that Mr Baath’s number one priority was his family and that forming a stable relationship and taking on responsibility for his two children was a sign of maturation on his part.
Dr Newton undertook an assessment of the risk of recidivism by Mr Baath by applying a table of identified risk factors. The table identified four factors which demonstrate a high correlation with general criminal recidivism: criminal history, antisocial personality, pro-criminal attitudes and criminal associates. He assessed Mr Baath as satisfying only the criminal history factor because of his past convictions. The table also set out four factors with moderate predictive power: family/marital maladjustment, employment problems, substance abuse and leisure/recreation issues. He assessed that Mr Baath did not satisfy any of these factors. Dr Newton concluded that the risk of recidivism by Mr Baath was “in the lowest category possible for an actuarial instrument, and his level of risk is essentially equal to that of a normal community-dwelling male adult”.
Under questioning, Dr Newton did not accept that his assessment of risk needed to take into account that Mr Baath’s current social environment in India is very different to the one he had experienced in Australia.
Other Evidence
Mr Baath provided a certificate from the Office of Senior Superintendent of Police in Patiala, Punjab dated 7 February 2017, confirming that there was nothing adverse against him criminally while living in his home village. Mr Baath also provided a police clearance certificate issued by the Indian Ministry of External Affairs dated 13 December 2016, stating that it had no adverse information against Mr Baath “which would render him ineligible for a grant of travel facilities including a visa for the Commonwealth of Australia”.
Mr Baath produced a statement from the Western Australian Department of the Attorney General confirming that he has paid all fines imposed on him as a result of his convictions between 2009 and 2014.
Mr Baath also provided a “Confidential Report of Psychological Evaluation”, dated 8 February 2017. The Report was prepared by Tarlochan Singh, a clinical Psychologist from Psych Waves Mental Health Services in Chandigarh, India. The Report stated that Mr Baath had no history of psychiatric illness in the past, but noted that he had experimented with alcohol once or twice a month in small quantities during his stay in Australia. The Report added that he “…often reported uneasiness and urge to drink alcohol when he came back to India so he visited his Physician from where he got referral to counselling”. The Report noted that Mr Baath had attended counselling fortnightly from 5 April 2015 to 18 March 2016 and that during the counselling his “.faulty behaviour was modified” and he “followed instructions with full motivation and enthu.” His attendance at the counselling sessions was confirmed by a certificate from the Department of Psychiatry from the Guru Teg Bahadur Sahib (C) Hospital dated 16 May 2016.
Mr Baath produced statements from his associates in India attesting to his regular participation in sessions at a local gym, which Mr Baath asserted was now part of his healthy lifestyle. He also provided a statement from the President of his village’s Working Committee, attesting to his attendance at his local Sikh temple and his participation in voluntary work in the temple kitchen. He also produced a bundle of photographs of himself, his wife, and his daughter in various social settings.
Does Mr Baath Satisfy the Character Test?
In considering whether Mr Baath satisfies the character test, the relevant consideration under s.501(6)(d)(i) is whether there is a risk that he will engage in criminal conduct in Australia if the visa is granted.
It is not sufficient that Mr Baath has engaged in criminal conduct in the past. The Tribunal is required by s.501(6)(d)(i) to assess whether there is a risk that he will engage in criminal conduct in the future if he is granted entry to Australia.
Applicant’s Contentions
The Applicant submits that the risk of Mr Baath reoffending does not reach a level which satisfies s.501(6)(d)(i) of the Migration Act. The Applicant relies on the following factors:
·Mr Baath’s last appearance before a court was on 2 May 2014 and he has not offended since then;
·Mr Baath has paid all fines issued to him, demonstrating his respect for the Australian criminal justice system;
·Mr Baath’s past offending was very much alcohol related and he has ceased the consumption of alcohol completely and sought professional assistance;
·Mr Baath has reflected on his prior conduct and expressed remorse;
·Mr Baath has taken steps to improve his life by attendance at a gym and his local temple;
·Mr Baath has formed a new relationship with the Applicant and his step-daughter, and he has recently had a child with the Applicant;
·Mr Baath has been assessed by a clinical psychologist, Dr Newton, as being in the lowest category possible for a risk of reoffending and that his level of risk is essentially equal to that of a normal community-dwelling male adult.
Respondent’s Contentions
The Respondent contends that, in the absence of persuasive evidence to the contrary, the Tribunal should conclude that there is a risk that Mr Baath will engage in criminal conduct if granted entry to Australia. The Respondent relies on the following factors:
·Mr Baath was convicted of numerous and repeated offences for driving under the influence of alcohol and driving while disqualified;
·Mr Baath’s most recent offence was committed in April 2014, shortly before his return to India;
·Mr Baath’s offences for driving under the influence involved a risk of devastating consequences for members of the Australian community, even though no actual harm resulted from any of the incidents;
·Mr Baath’s licence was disqualified for substantial periods with the most recent amounting to a 30-month suspension, indicating that the court regarded him as a threat to the community when driving;
·Mr Baath has demonstrated while in Australia that he is unwilling to abide by Australian laws, having engaged in dishonest conduct and frequent, repeated and escalating offending;
·the evidence of rehabilitation undertaken by Mr Baath in India does not show how the rehabilitation took place or indicate Mr Baath’s progress during rehabilitation;
·Mr Baath would pose a grave risk to the Australian community if he were to re-offend in a similar manner; and
·even if the risk of alcohol related offending is considered to be low, the Tribunal cannot be satisfied that Mr Baath will not commit dishonesty offences.
Consideration - Character Test
I do not accept the Respondent’s submission that there is a risk that Mr Baath will commit dishonesty offences unrelated to alcohol-related offences if he is permitted to return to Australia. I accept the Applicant’s submission that his past offending is confined to providing false information to the police in relation to traffic violations. While these offences do indicate that Mr Baath had a general disregard for the laws of Australia they do not establish, to the requisite standard, that he has a propensity to commit dishonesty offences per se. The relevant risk for the purpose of s.501(6)(d)(i) is whether Mr Baath will engage in criminal conduct in the form of offences related to driving under the influence of alcohol.
Mr Baath remained in Australia unlawfully from 16 March 2010, when his student visa was cancelled, until 17 January 2015. The Respondent submitted that this should be regarded as criminal conduct, and relied on the Tribunal’s decision in CBYQ v Minister for Immigration and Border Protection (2018) AATA 91 (CBYQ). I have considered the decision in CBYQ. The Respondent’s submission relies solely on the statement at [51] of the decision, where the Tribunal states:
“The Minister argued that the Applicant’s residence as an unlawful non-citizen should be regarded as criminal conduct. This was appropriate.”
In CBYQ the Applicant had resided in Australia unlawfully following the cessation of his bridging visa. He was subsequently detained by Police and taken into detention. The Applicant was not charged with any offence related to his unlawful residence in Australia, and this conduct was not relied on by the Tribunal in considering whether the Applicant was of good character. The Tribunal’s finding that the Applicant’s unlawful residence was criminal conduct did not feature in the reasons for the decision and is properly to be regarded as obiter dicta.
The Migration Act provides for the detention of unlawful non-citizens[3], their removal from Australia[4] and their deportation[5]. There are criminal offences for using another person’s visa,[6] but there is no general offence for remaining in Australia after the expiry of a valid visa. On this basis I am not satisfied that Mr Baath’s conduct in remaining in Australia as an unlawful non-citizen can properly be regarded as criminal conduct, and I decline to use the characterization adopted by the Tribunal in CBYQ.
[3] Section 189.
[4] Section 198.
[5] Section 200.
[6] Section 236.
While I do not regard Mr Baath’s conduct in remaining in Australia unlawfully for almost five years as a criminal act, it does demonstrate that he was prepared to deliberately disregard the immigration laws of Australia, and to do so for an extended length of time. The fact that Mr Baath voluntarily owned up to his conduct and left the country of his own volition does not diminish the weight I give to this matter.
The Respondent also produced evidence that Mr Baath had made a false statement on his Incoming Passenger Card in November 2008, by not disclosing his conviction one month earlier for driving under the influence of alcohol. Mr Baath explained in evidence that he didn’t think that the conviction was a criminal offence that needed to be disclosed. Mr Baath was not charged with any offence over this matter and his explanation stands untested. In the circumstances I accept that his explanation is plausible, but I otherwise make no findings about the incident and give it no weight in assessing the issues before the Tribunal.
I accept the Respondent’s assertion that Mr Baath’s offences for driving and attempting to drive under the influence of alcohol had the potential for devastating consequences for members of the Australian community. I do not accept that the seriousness of his offending in this regard is mitigated by the fact than no harm actually resulted from his conduct.
I also accept the Respondent’s submission that viewed in totality, Mr Baath’s conduct during the time he was in Australia demonstrated a disregard for Australian laws. His offences involved repeated disregard for the law in relation to driving under the influence of alcohol, and he was convicted of multiple offences of providing false information to police. I do not accept that the seriousness of these offences is somehow diminished because they were all associated with other traffic offences. Mr Baath was also the subject of two restraining orders, and he was convicted of breaching one of those orders in circumstances which suggest that he had deliberately disregarded the order.
I do not accept the evidence of Mr Baath that the only times he drove under the influence of alcohol were the four occasions upon which he was apprehended by the police. While this is possible, the likelihood that that it occurred is so low that I reject the evidence. I am satisfied that it is more likely that Mr Baath was prepared to drive while under the influence of alcohol and that he was apprehended on four occasions that he did so.
I acknowledge that Mr Baath has paid all fines in relation to his offences and, while it would have added to my conclusion about his disregard for Australian laws if he had not done so, I do not regard the fact that he paid the fines as mitigating the attitude that led him to commit the offences in the first place.
The evidence establishes that Mr Baath has not been convicted of any offence since April 2014 either in Australia or in India. Dr Newton gave evidence that the risk of relapse declines over time and that the first two years are a significant indicator that the subject is unlikely to re-offend. I accept Dr Newton’s evidence that the risk of re-offending diminishes over time, but the issue to be considered is the extent to which the risk is diminished. In this case for all but eight months of the period since April 2014, Mr Baath has been in a very different social environment from the one in which he had repeatedly offended. The issue for me is to assess the risk of Mr Baath offending in the circumstances he is likely to confront in Australia. The fact that he has not offended in India under very different circumstances is relevant, but I do not accord it substantial weight.
I accept the Applicant’s evidence that Mr Baath has not consumed alcohol since returning to India. I accept that this does indicate that Mr Baath is able to control his alcohol use, and it lends weight to his assertion that he has forsaken the consumption of alcohol in the future. However, I am not convinced that this is a strong indicator of Mr Baath’s future behaviour should he return to Australia. Mr Baath’s current circumstances in India are very different to the circumstances he experienced while in Australia. He is now living with his parents and is under their influence. He is part of a Sikh community where the consumption of alcohol is not part of their culture. The relevant consideration in applying the character test in s.501(6)(d)(i) is the risk of Mr Baath engaging in criminal behaviour if he is allowed to re-enter Australia. The evidence indicates that Mr Baath had a prolonged period in Australia during which the consumption of alcohol was a regular feature of his social life. His psychologist’s report of 8 February 2017 stated that he “…often reported uneasiness and urge to drink alcohol when he came back to India”. The question is whether the attitude to alcohol that he has demonstrated in India will translate to the circumstances he is likely to face in Australia.
I accept that Mr Baath engaged in counselling with the Department of Psychiatry at the Guru Teg Bahadur Sahib (C) Hospital from 5 April 2015 to 18 March 2016, and that his counselling dealt with the use and effects of alcohol. However, the Applicant has not provided any detail on the content of the counselling course, nor any formal report on Mr Baath’s participation beyond the comments of his psychologist that during the counselling his “...faulty behaviour was modified” and that he “followed instruction with full motivation and enthu.”
I accept the Applicant’s evidence that Mr Baath has been regularly attending his local gym and that he has participated in the activities at his local Sikh temple, including assisting in the kitchen. This activity does indicate that Mr Baath has adopted a positive approach to his life in India, but it says little about his likely response to the issues he will face in adjusting to life in Australia. I give it little weight in assessing the risk that Mr Baath may present to the Australian community should he be granted a visa.
Mr Baath has formed a new relationship with the Applicant and his step-daughter and they have recently had a child together. Mr Baath and the Applicant were married in January 2015 and since then the Applicant has visited him in India several times. They have lived together in India as husband and wife for a total period of around 5 months. There is also evidence that the family maintains regular contact via electronic media. The Applicant is currently being assisted by Mr Baath’s mother in caring for her new baby.
Witnesses Rupinder Tiwana, Jaswant Singh Tiwana, Gurpreet Singh and the Applicant have consistently stated that Mr Baath has matured as a result of his relationship with the Applicant.
In assessing the evidence of Mr Baath’s relationship with his wife and children, I note that apart from Gurpreet Singh,[7] none of the witnesses called by the Applicant (including the Applicant herself) knew Mr Baath prior to January 2015. None were in a position to assess the extent to which he had changed, or to appreciate how and why he had behaved while in Australia prior to January 2015. Even Mr Gurpreet Singh had only infrequent contact with Mr Baath during the time he was in Perth, where Mr Baath’s criminal conduct occurred. In addition, all of these witnesses, other than the Applicant, have had very limited contact with Mr Baath since his return to India.
[7] See Exhibit A-5.
I accept the evidence of the Applicant that Mr Baath has behaved as a responsible, helpful and caring person towards his family and that he helped her with household tasks when they lived together in India. I also accept her evidence that he cares for and loves Asees. I otherwise give little weight to the evidence of these witnesses.
Dr Newton observed that Mr Baath “espouses an interpersonal style focused on the maintenance of caring and mutual relationships”, and particularly his committed relationship with the applicant and his strong bonds with his step-daughter. Dr Newton placed significant reliance on Mr Baath’s relationship with the Applicant, whom he describes as a “pro-social individual”, in assessing the ‘moderate’ risk factors for criminal recidivism.
I accept that Mr Baath’s relationship with the Applicant and his step-daughter represents a positive influence on his life. However, I am not satisfied that the current circumstances provide a reliable indication of how the relationship will affect Mr Baath’s future behaviour, and in particular his risk of re-offending should he be permitted to return to Australia. The marriage is of some 40 months’ duration, during which time Mr Baath and the Applicant have lived apart for around 35 months. The couple has never experienced life together in Australia. They have not established a home together. The Applicant has had sole responsibility for raising her daughter in Australia and has established a career for herself. There is no evidence that Mr Baath has contributed to the financial support of his wife and children, nor that he has acquired any skills or experience to do so in the future. Mr Baath has no current qualifications and appears to have limited job prospects.
While Mr Baath has said that his greatest desire is to return to Australia so he can support the Applicant and his two children, there is little evidence that Mr Baath has taken responsibility to support others. He is currently supported by his parents, and has been for the last 3 years.

I fully acknowledge that many of these factors are imposed on Mr Baath as a result of circumstances, but I am not satisfied that his marriage evidences the change of attitude contended for by the Applicant.
Dr Newton’s Assessment
Mr Baath has been assessed by a clinical psychologist, Dr Newton, who has assessed him as being in the lowest category possible for a risk of reoffending and that his “level of risk is essentially equal to that of a normal community-dwelling male adult.” The opinion of an expert such as Dr Newton should command considerable weight in assessing the risk of further offending by Mr Baath. However, there are some aspects of Dr Newton’s report and oral evidence which cause me to accord it less weight. .
Dr Newton’s report is based on a single 90-minute Skype interview and a review of the relevant T Documents. I accept Dr Newton’s evidence that the interview utilised a high quality audio/visual link, and that the use of such a medium does not appreciably detract from the quality of the interview process. Nevertheless, it is a report based on a single interview and one conducted remotely. As a result, Dr Newton was not in a position to directly observe any change in Mr Baath; rather, his assessment is based on assertions by others, and in particular statements by Mr Baath himself.
Dr Newton stated in his report:
“Mr Baath has now addressed this deficit (no education or guidance on the consumption of alcohol) through participation in extended alcohol-related counselling with a clinical psychologist in India.”
There are two T Documents relevant to Mr Baath’s counselling: a Confidential Report of Psychological Evaluation dated 8 February 2017 prepared by Tarlochan Singh, a clinical Psychologist from Psych Waves Mental Health Services, Chandigarh India (Singh Report), and a certificate from the Department of Psychiatry from the Guru Teg Bahadur Sahib (C) Hospital dated 16 May 2016 (Certificate).
The Singh Report briefly describes the counselling as
“..imitated (sic) with objective to develop insight, to strengthen super ego, to develop sense of control, to lowering (sic) impulsivity, ego strengthening and to improve social responsibility….Therapeutic principles of behaviour therapy and cognitive behaviour therapy. Relaxation Techniques were also taught along with some home assignments”.
The Certificate briefly states that Mr Baath regularly attended for “motivational enhancement therapy” sessions and was provided with “psycho education and tips for self help and helpful ways of thinking”.
Dr Newton did not have access to any detailed report from the Department of Psychiatry at the Guru Teg Bahadur Sahib (C) Hospital about the counselling provided to Mr Baath from 5 April 2015 to 18 March 2016. He appears to have relied solely on the brief comments in the Singh Report and the Certificate.
Accordingly, Dr Newton was not able to evaluate the quality of the counselling that Mr Baath received, nor its applicability to the social pressures Mr Baath would be likely to face should he return to Australia. I find it significant that Dr Newton made no reference to the observation by the psychologist that Mr Baath “...often reported uneasiness and urge to drink alcohol when he came back to India…” Dr Newton’s conclusions therefore seem to rest on the bare fact that Mr Baath had attended alcohol rehabilitation counselling, without any evaluation of the appropriateness of that counselling.
Dr Newton placed reliance on the observation that Mr Baath had limited insights into alcohol-related matters, attributing this to the emphasis on abstinence in his Sikh faith. He concluded that this “‘naivety’ had led Mr Baath to misuse alcohol and, having now undergone counselling in India, he was able to explain to Dr Newton how to ensure that alcohol is consumed safely and how he planned to avoid drinking alcohol again, should he be allowed to return to Australia.[8] I place little weight on this observation. I accept that Mr Baath may have been ‘”naive” in relation to alcohol-related matters when he arrived in Australia in January 2007 because of his Sikh background, but his alcohol-related offences were committed over a period of more than 5 years from October 2008 until May 2014. Mr Baath was 22 years old when he arrived in Australia. He had adequate opportunity through his direct experiences to understand the effects of alcohol consumption by at least the time of his second drink-driving offence in January 2009. I do not accept that his lack of knowledge of alcohol-related matters had any bearing on his conduct, at least after that time.
[8] Exhibit A-6 at [34]-[35].
Dr Newton relied on statements by Mr Baath that he had not been involved in any arguments or fights when drunk, and that he had never missed work because he was hungover or otherwise affected by alcohol. Dr Newton concluded from this that there were no indications of the social, interpersonal or emotional dysfunction typically associated with problematic drinking. In fact, Mr Baath was involved in two incidents where an altercation with a female acquaintance resulted in a restraining order being imposed on him.[9] In the latter case Mr Baath admitted that he was drunk. There was no direct evidence of the nature of Mr Baath’s conduct in either incident except his own evidence that on both occasions he had merely had an argument with his female acquaintance. Nevertheless, I am satisfied that the circumstances in both incidents were sufficiently serious for the female acquaintance to report Mr Baath’s conduct to the police, and for the police to regard it as warranting the imposition of a restraining order. Dr Newton’s observations regarding this aspect of Mr Baath’s behaviour appear unreliable in the face of this evidence.
[9] Exhibit R-1 at pp.18-20.
Dr Newton states that Mr Baath has good employment skills and a strong work ethic.[10] This observation is at odds with the evidence. Mr Baath’s student visa was cancelled by the Minister in 2010 due to a lack of progress in his studies. Between March 2010 and January 2015 Mr Baath gave evidence that he relied on the generosity of his friends for financial support in return for assistance with household chores. The Applicant has produced no evidence regarding Mr Baath’s employment in India, save for Mr Baath’s brief statement that he assists his father with harvesting during the harvesting season, as well as maintaining the crops during the year.[11] Rather than demonstrate a strong work ethic and good employment skills, the evidence indicates that Mr Baath is essentially unskilled and has not engaged in paid employment for the last 8 years. Accordingly, he is likely to have considerable difficulty in finding employment in Australia, should he return.
[10] Exhibit A-6 [41] and [43]
[11] See T11 at p. 291 [63]
Having regard to these aspects of Dr Newton’s report I give it only moderate weight in assessing whether Mr Baath satisfies the character test.
Conclusion
In considering whether Mr Baath satisfies the character test the relevant consideration under s.501(6)(d)(i) is whether there is a risk that he will engage in criminal conduct if he is allowed to enter or remain in Australia.
I am required to be satisfied that, if Mr Baath returns to Australia, he will not engage in further criminal conduct. Specifically, that he will not commit offences related to driving under the influence of alcohol. In, effect, I need to be satisfied that Mr Baath is a changed man who, when exposed to life in Australia, will not repeat his previous criminal conduct.
I have carefully considered all of the evidence.
The starting point is the demonstrated behaviour of Mr Baath while in Australia before January 2015. By January 2015 Mr Baath had shown a repeated and wilful disregard for the drink-driving laws in Australia, and I am satisfied that had he remained in Australia there would have been a significant risk that he would engage in further criminal conduct by driving under the influence of alcohol.
I have considered the steps he has taken in India to address these issues.
Mr Baath has expressed remorse and says that he is a changed man who intends not to consume alcohol in the future. He has abstained from consuming alcohol for the last three years. However, this has to be put in the context that he has been living with his parents in a community in which the consumption of alcohol is not tolerated. It begs the question of how Mr Baath will respond when he returns to the environment in which he behaved so irresponsibly in the past.
The Applicant places significant weight on the fact that Mr Baath is married and has assumed the role of a father to show that he is now more mature and responsible. I accept that Mr Baath has a genuine affection for his wife and step-daughter, but the evidence does not demonstrate that he has actually taken responsibility in that role.
The fact that Mr Baath has joined a gym and attends his local Sikh temple is a positive step, but does not represent compelling evidence that he is committed to a more responsible lifestyle.
I am concerned that there is no evidence of Mr Baath addressing more fundamental issues relating to the immaturity and social irresponsibility evident in his conduct in Australia. Mr Baath’s student visa in Australia was cancelled for lack of progress in his studies. There is no evidence that he has done anything over the last eight years to improve his employment prospects by acquiring skills or work experience. In the five years before he returned to India he lived in Australia illegally, relying on the financial support of his friends. Since returning to India he has been in another dependant relationship, this time with his parents. There is no evidence that he has sought or obtained employment, apart from assisting his father with farm work. From this I conclude that there is little evidence that Mr Baath has developed an independent and responsible approach to life which indicates that he would behave differently in the Australian community.
There is evidence that Mr Baath has undertaken rehabilitation and counselling. However, this evidence does not show how the rehabilitation was conducted, nor does it adequately document Mr Baath’s participation in his rehabilitation.
Dr Newton has opined that Mr Baath is a changed man who is in the lowest category possible for a risk of reoffending. For reasons discussed I give limited weight to the conclusions of Dr Newton. I am not satisfied that his assessment has proper regard to the facts, and it relies too heavily on self-serving statements by Mr Baath.
Having considered all of this evidence I am not satisfied that Mr Baath has changed sufficiently to avoid a repetition of his previous behaviour. I am satisfied that there is a risk that he will engage in criminal conduct if he is permitted to return to Australia. Accordingly, I find that Mr Baath does not satisfy the character test in s. 501(1) of the Migration Act.
Consideration - Discretion under s. 501(1)
Having found that Mr Baath does not satisfy the character test, I am required to make a determination regarding the discretion granted by s. 501(1) of the Migration Act, which requires application of the considerations in Part B of the Direction. Section 499(2A) of the Migration Act mandates that the Tribunal must comply with the Direction.[12]
[12] Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591
Direction 65 relevantly provides as follows:
6.1 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) Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.
...
(4) The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
6.2 General Guidance
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501...The principles referred to in the General Guidance are reproduced below and constitute a framework within which decision-makers must apply the considerations in Parts A, B, or C of the Direction:
6.3 Principles
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7.1(a) of the Direction states that a decision-maker “...must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa.” Paragraph 8(1) of the Direction explains that the considerations in Part A and Part C for existing visa holders and in Part B for visa applicants are different:
“Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.”
If it is determined that an applicant does not pass the character test, the following primary considerations in paragraph 11(1) of the Direction must be applied to the specific circumstances of his case:
(a) Protection of the Australian community from criminal or other serious conduct;
(b) The best interests of minor children in Australia;
(c) Expectations of the Australian community.
Paragraph 12(1) of the Direction requires that other considerations to be taken into account, where relevant, include (but are not limited to):
(a) International non-refoulement obligations;
(b) Impact on family members;
(c) Impact on victims;
(d) Impact on Australian business interests
Paragraph 8(4) of the Direction states that “...Primary considerations should generally be given greater weight than the other considerations.” Paragraph 8(5) states that “...One or more primary considerations may outweigh other primary considerations.”
Protection of the Australian community from criminal or other serious conduct
Paragraph 11.1 of the Direction provides that “When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct.” In doing so a decision-maker is required to consider the seriousness of the conduct and the risk to the Australian community should the person commit further offences or engage in other serious conduct.
In assessing the nature and seriousness of Mr Baath’s conduct I have had regard to the matters set out in sub-paragraph 11.1.1 of the Direction.
Mr Baath’s offending was not of a violent or sexual nature, and was not against vulnerable members of the community such as minors, the elderly, or disabled.
From 2008 until 2015, when Mr Baath was in Australia, he was convicted of 11 separate traffic-related criminal offences arising from 5 separate incidents. These incidents occurred on 3 October 2008, 30 December 2008, 20 January 2009, 29 June 2011 and 2 May 2014. Of those offences there were three convictions for driving under the influence of alcohol and a fourth conviction for attempting to drive under the influence. There were also three convictions for driving while disqualified and four convictions for providing false information to police.
The penalties imposed by the court for drink-driving escalated with each offence, indicating that the court regarded his repeat offending as increasingly serious. In October 2008 Mr Baath was fined $800 and disqualified from driving form 6 months. In January 2009 he was fined $1,200 and disqualified for 7 months. In June 2011 he was fined $1,000 and disqualified for 8 months. In May 2014 he was fined $2,100 and disqualified for 30 months.
The frequency of Mr Baath’s offending is unacceptable. The cumulative effect of his repeated offending demonstrates a lack of respect for the law.

I accept the Respondent’s assertion that Mr Baath’s offences for driving and attempting to drive under the influence of alcohol had the potential for devastating consequences for members of the Australian community. I do not accept that the seriousness of his offending in this regard is mitigated by the fact than no harm actually resulted from his conduct. Principle 6.3 (4) states that “In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable.” I am satisfied that driving under the influence of alcohol carries a significant risk of serious harm to the perpetrator and innocent third parties such as other drivers, passengers and pedestrians. The risk of Mr Baath repeating that conduct is unacceptable. I note that Principle 6.3 provides that where such an unacceptable risk is involved, “even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.”
I find that the primary consideration of protecting the Australian community weighs strongly in favour of refusing to grant a visa to Mr Baath.
Best Interests of Minor Children in Australia
In Minister for Immigration and Ethnic Affairs v Teoh[13] the majority accepted that the United Nations Convention on the Rights of the Child (Convention) had not become part of the municipal law of Australia, but rejected a submission that its absence from the municipal law meant that it could never give rise to a legitimate expectation. The majority stated:
"No persuasive reason was offered to support this far-reaching proposition. The fact that the provisions of the Convention do not form part of our law are a less than compelling reason - legitimate expectations are not equated to rules or principles of law. Moreover, ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act, (See Minister for Foreign Affairs and Trade v Magno [1992] FCA 566; (1992) 37 FCR 298 at 343; [1992] FCA 566; 112 ALR 529; Tavita v Minister of Immigration [1994] 2 NZLR 257 at 266) particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the Executive Government of this country to the world and to the Australian people that the Executive Government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention (cf Simsek v MacPhee (1982) 148 CLR at 644) and treat the best interests of the children as `a primary consideration'.
[13] [1995] HCA 20; (1995) 128 ALR 353.
This requirement is reflected in s.11(1) of Part B of Direction 65, which requires the Tribunal to consider the best interests of minor children as one of the primary considerations.
Paragraph 11.2 requires me to make a determination about whether refusal is, or is not, in the best interests of minor children. In this case, the minor children are Mr Baath’s step-daughter Asees and his newly born daughter Seerat. The Respondent has conceded in submissions that this consideration weighs in favour of the Applicant.
As there are two relevant children in this case, I am required by subparagraph 11.2(3) of the Direction to give individual consideration to the best interests of each child “to the extent that their interests differ” in having regard to the factors set out in subparagraph 11.2 (4).
The Applicant submits that it is clearly in the best interests of Asees that Mr Baath be granted a visa. Asees regards him as her father, having had no real contact with her biological father. They have a strong ongoing relationship. He has had a parental role with her and says that he intends to play a positive parental role with her in the future. The effect of separation will be significant.
The Applicant gave evidence that Asees started school in 2018 and that she is keen to be reunited with Mr Baath in Australia. There is no evidence of abuse or neglect of Asees by Mr Baath, nor any evidence of Asees suffering any physical or emotional trauma arising from his conduct. On the contrary, the evidence is that Mr Baath and Asees have a loving relationship and that they treat each other as father and daughter.
I am satisfied that it is in the best interests of Asees to be reunited with Mr Baath so that he can fulfil the role of her father. Mr Baath has established a positive relationship with Asees and he says he intends to play a positive parental role in the future. I also accept that it is in Asees’ interests that she be able to reunite with Mr Baath in Australia, although I give less weight to this aspect. If Mr Baath is not granted a visa, the Applicant will have to decide whether to remain in Australia or to return to live in India with Mr Baath. Asees has only just started school, so any move to India would have a limited effect on the progress of her education, and is likely to be less disruptive to her peer relationships than it would be if she were older. She would also have the benefit of contact with her extended family if she returned to India, and in this regard I note that Mr Baath’s mother is currently assisting the Applicant to look after her two children following Seerat’s birth. If the Applicant chose to remain in Australia, Asees would be denied the opportunity to have direct contact with Mr Baath, and would receive limited benefit from their father/daughter relationship.
I am required to consider the impact of Mr Baath’s prior conduct and any likely future conduct, and whether that conduct has, or will have, a negative impact on his children. There is no evidence that Mr Baath’s prior conduct has had any impact on Asees, and in fact it occurred before Mr Baath met the Applicant and through her, Asees. Nevertheless, the risk that Mr Baath may reoffend if allowed to enter Australia does have the potential to impact on Asees both directly and indirectly. It is possible, for example, that Mr Baath may drive under the influence of alcohol while Asees is a passenger in his car, directly exposing her to harm. Indirectly, Asees may be adversely affected by any criminal conduct by Mr Baath. The same situation applies to Seerat.
Seerat was born in Australia on 16 March 2018. Mr Baath is her biological father but he has not yet had any direct contact with her. Nevertheless her position is essentially the same as Asees’. I am satisfied that it is in her best interests to be able to live with her father. However, she is too young to have ties to Australia and could be expected to adjust to life in India more easily than Asees, should the Applicant decide to relocate if Mr Baath is not granted a visa.
While I acknowledge that there are likely to be disadvantages for both children in moving to India, there is no evidence that to do so would expose them to the risk of harm or mistreatment.
I am satisfied that a refusal to grant Mr Baath a visa is not in the best interests of Asees and Seerat, as it would not enable them to grow up in Australia with the direct support of their father. However, I am satisfied that it would be realistic for Mr Baath to be united with his wife and children in India. A refusal of his visa would not necessarily prevent him performing his role as father to Asees and Seerat. Accordingly, I find that this consideration weighs moderately in favour of granting a visa to Mr Baath.
Expectations of the Australian Community
Paragraph 11.3 of the Direction, to which I am required to have due regard, provides that:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse a visa application for that person. Visa cancellation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa.”
Deputy President Block in Jupp and Minister for Immigration and Multicultural and Indigenous Affairs[14] said in relation to paragraph 2.3(b) of the Direction relating to the expectation of the Australian community:
"It assumes (incorrectly) that there is an Australian community which thinks as one. The supporters of One Nation would have one view as regards immigration and there is of course a very large diametrically opposed body of opinion in Australia. I construe this reference as being correctly made to middle-of-the-road reasonable members of the Australian community who do not hold extreme views one way or another. And I think that there is a further limiting factor and that is that one must import into that Australian community, knowledge of the evidence before me. ..." (paragraph 7(m))
[14] [2002] AATA 458
I accept that the expectation of the Australian community is to be ascertained by considering the views of reasonable members of that community when fully appraised of the relevant facts.
I have also has regard to Principle 6.3 (6) of the Direction. It states that “Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.”
I have no doubt that reasonable members of the Australian community would have little or no tolerance for persons driving under the influence of alcohol. The Australian community is acutely aware of the dangers of such conduct. Various state and federal government bodies have made a sustained and concerted effort to change community attitudes and behaviours in relation to drink-driving. I am equally satisfied that reasonable members of the Australian community, fully appraised of Mr Baath’s offences, would have no tolerance for his repeated breaches of the drink-driving laws and his disregard for Australian laws generally.
Equally, I have no doubt that fair-minded Australians would be sympathetic to the position of the Applicant and her daughters. However, I am satisfied that those interests would not outweigh the concerns of fair-minded people regarding the risks to the community of repeated offending by Mr Baath.
Having regard to these matters I am satisfied that because of the nature and extent of Mr Baath’s offending, the Australian community would expect that he should not be granted a visa. I find that this consideration weighs heavily in favour of not granting Mr Baath a visa.
OTHER CONSIDERATIONS
International Non-refoulement Obligations
This case does not raise issues of Australia’s non-refoulement obligations and there was no evidence or submissions provided in this respect.
Impact on family members
The relevant family member to be considered in this case is the Applicant, who is an Australian citizen. There is no evidence that a refusal to grant Mr Baath a visa will adversely impact on any other family members.
The Respondent acknowledged in submissions that a decision to refuse to grant a visa to Mr Baath would have an adverse impact on the Applicant, but argued that it would be open to her to return to India to be with Mr Baath, and that the adverse impact would be limited because the Applicant has family in India. It is the country of her birth and it is where she grew up as a child.
The Applicant acknowledges that her interests are not the primary interests under the Direction, but argues that they should be given due weight and as an Australian citizen, she should not be expected to move to India to be with her husband and father of her two children. The Applicant gave evidence that it would be hard for her to return to India after 10 years in Australia, and that it will be hard for her to raise two children alone if she does not relocate to India.
I accept that a refusal to grant Mr Baath a visa would be disadvantageous for the Applicant. She would not have the opportunity to establish a family life with Mr Baath and her two children in Australia. However, the Applicant does have the choice to remain in Australia or to move to India to be with Mr Baath. I accept that this would not be an easy decision for the Applicant to make. She has made a life for herself in Australia and is in the process of establishing herself in a career. While she has managed to look after her daughter Asees she would find it more difficult to manage with two children now that Seerat has been born. On the other hand, if she returned to India she would be familiar with the language and culture and have the support of her family, Mr Baath, and his family.
I am satisfied that a refusal to grant Mr Baath a visa will have a negative impact on the Applicant, but because she has a realistic option to reunite with Mr Baath by moving to India I find that this consideration weighs moderately in favour of granting a visa to Mr Baath.
Impact on Victims
There is no evidence in this case that there have been victims of Mr Baath’s criminal behaviour.
Impact on Australian Business Interests
This consideration is not relevant.
CONCLUSION
Weighing each of these considerations I am satisfied that the protection of, and the expectations of, the Australian community outweigh any other considerations and favour not granting Mr Baath a visa.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 149 (one-hundred and forty nine) paragraphs are a true copy of the reasons for the decision herein of Member R. West

..............................[sgd]..........................................
Associate
Dated: 19 July 2018

Date of hearing: 6 April 2018

Counsel for the Applicant: Mr Guy Gilbert

Solicitors for the Applicant: AR Law Services

Advocate for the Respondent: Ms Rachel Noronha

Solicitors for the Respondent: Clayton Utz

[2018] AATA 2300

19 July 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

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Date of hearing:	6 April 2018
Counsel for the Applicant:	Mr Guy Gilbert
Solicitors for the Applicant:	AR Law Services
Advocate for the Respondent:	Ms Rachel Noronha
Solicitors for the Respondent:	Clayton Utz