Bhangu and Minister for Immigration and Border Protection (Migration)

[2018] AATA 2143

Bhangu and Minister for Immigration and Border Protection (Migration) [2018] AATA 2143 (14 June 2018)

Division:GENERAL DIVISION

File Number(s):      2018/1584

Re:RAJWINDER SINGH BHANGU

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:R. Cameron, Senior Member

Date:14 June 2018  

Place:Melbourne

The Tribunal sets aside the decision under review and in substitution decides that the mandatory cancellation of the Applicant’s Class VB Skilled – Independent (subclass 885) visa be revoked under s 501CA of the Migration Act 1958.

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

Senior Member

Catchwords

MIGRATION – request for revocation of mandatory cancellation of visa – Applicant fails character test – serious criminal record – burglary, theft and criminal damage – low risk of reoffending – best interests of minor child in favour of revocation – decision set aside and substituted

Legislation

Migration Act 1958

Cases

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

Re Ayache and Minister for Immigration and Border Protection [2018] AATA 310

Secondary Materials

Ministerial Direction no. 65

REASONS FOR DECISION

R. Cameron, Senior Member

14 June 2018

INTRODUCTION

1. The Applicant, Mr Rajwinder Singh Bhangu, was the holder of a Class VB Skilled – Independent (subclass 885) Visa. On 2 June 2017 the visa was mandatorily cancelled under section 501(3A) of the Migration Act 1958 (“the Act”) on the basis that the Applicant did not pass the character test as he had a substantial criminal record as defined under section 501(7) of the Act.

2. On 31 October 2017 the Applicant made a request to the then Minister for Immigration and Border Protection (“the Minister”) (“the Respondent”) to revoke the cancellation of the visa under section 501CA of the Act.

3. This is an application to the Tribunal to review the decision made by a delegate of the Minister on 21 March 2018 not to revoke the visa cancellation under section 501(3A) of the Act (“the reviewable decision”).

   ISSUES TO BE DECIDED

4. The Applicant accepts that he fails the character test.[1] Having regard to this concession and the multiple terms of imprisonment in total exceeding 12 months that he has served, the Tribunal is satisfied that he fails the character test due to the operation of section 501(6)(a) of the Act. Therefore, the Tribunal (standing in the shoes of the Respondent) must determine whether there is another reason why the mandatory cancellation of the Applicant’s visa should be revoked.[2]

   [1] This concession is made in paragraph 3 of the Applicant's Statement of Issues, Facts and Contentions dated 7 May 2018.

   [2] Section 501CA(4)(b)(ii) of the Act.

   THE EVIDENCE BEFORE THE TRIBUNAL

5. The following evidence was before the Tribunal in documentary form:

   ·A bundle of 24 documents, including signed statements from the Applicant and his wife, Khushdeep Kaur Bhangu, lodged with the Tribunal on 7 May 2018;

   ·A statutory declaration of Ranjeet Singh Banghu;

   ·A statutory declaration of Hardeep Singh;

   ·A statutory declaration of Rupinder Kaur;

   ·The G documents; and

   ·The Supplementary G documents.

6. Additionally, there was viva voce evidence from the following witnesses;

   ·The Applicant;

   ·Khushdeep Kaur Bhangu;

   ·Hardeep Singh;

   ·Ranjeet Singh Bhangu; and

   ·Lovedeep Singh Khangura.

7. Also, both parties filed Statements of Facts, Issues and Contentions. These statements were of considerable assistance to the Tribunal.

8. The Tribunal would also like to place on record the exemplary way the legal representatives for both parties conducted this application. Apart from being conducted in a timely manner, the professional conduct of the practitioners and the assistance they provided to the Tribunal is very much appreciated.

   THE APPLICANT’S HISTORY OF OFFENDING

9. The Applicant’s criminal history is, unlike many of the matters that come before this Tribunal, confined to one event. It resulted in the Applicant pleading guilty to and being convicted on 11 July 2016 of the offences of burglary, two charges of theft and criminal damage (intent damage/destroy). On these charges the Applicant was sentenced to an aggregate of 18 months imprisonment, as well as a Community Correction Order for a period of two years during which he is directed to perform 100 hours of unpaid community work.[3]

   [3] The contents of the National Police Certificate, being "Attachment A" to document G4 at page 22 of the G documents is referred to.

10. As a result of these convictions and the corresponding sentence for these crimes there was a mandatory cancellation of his visa under section 501(3A) of the Act on 2 June 2017 by the Respondent.[4]

    [4] See the notice of decision not to revoke a visa cancellation, being document G5 of the G documents at page 197.

11. An account of the crimes committed by the Applicant will be recounted for the purposes of these reasons. They are largely derived from the Reasons for Sentence of Her Honour Judge Lawson of 11 July 2016.[5]

    [5] The Supplementary G documents were extensive and amongst other things contained much material produced by the Victoria Police, including the prosecution copy of the Brief of Evidence. Where necessary, facts derived from this material will be referred to further in these reasons.

12. At the outset, one has to observe that this crime was committed in a particularly inept way, and was therefore very rapidly detected by police. These comments are not in any way to downplay the seriousness of the crime and to this extent the comments made by the sentencing judge of the County Court are endorsed; but to highlight the distinctive aspects of these offences committed by the Applicant when compared to others. They were not crimes against the person but property. By reason of the participants’ criminal ineptitude there was restitution in full of the cash and cigarettes stolen in the burglary,[6] and the net loss to the victim was the cost of criminal damage to its property of just over $21,000.[7]

    [6] This fact is observed by Judge Lawson at paragraph 39 of her reasons.

    [7] Lest there be any doubt the total amount of the money stolen by the Applicant and his co-accused was $129,961.60 (this fact is obtained from paragraph 12 of the reasons of the sentencing Judge Her Honour Judge Lawson). The cost of repairs of over $21,000 was to the self-service cash registers and the cash master safe situated in the supermarket premises concerned.

13. At the time of the commission of the offending the Applicant was employed as a duty manager at the Coles supermarket in Bay Street, Brighton. It was during the course of his duties at the Coles supermarket in Brighton that he met his co-offender, Mr Idris Karrar, who was apparently employed as another duty manager. It goes without saying, as was observed by the sentencing judge, that the accused were in a position of trust, a position they exploited by misuse of information that they had obtained in the course of their employment for the purposes of the commission of the relevant crimes. The sentencing judge described the crime as “a serious example of a commercial burglary”.[8] It was a crime for which the sole motivation was to obtain money.[9] Her Honour observed that both had worked very hard since coming to Australia to live, but had very little by way of discretionary income and wished to improve their families’ financial circumstances.[10]

    [8] Paragraph 24 of Judge Lawson's Reasons for Sentence.

    [9] The Applicant informed the police that his motive was to keep the money and in the future use for his family, for a deposit on a house or just put it in the bank.

    [10] Paragraph 34 of Judge Lawson's Reasons for Sentence.

14. The underlying scheme attached to the burglary was comparatively simple. It involved breaking into the self-service cash registers which the Applicant and his co-offender knew from their management positions with Coles, were likely to contain over $100,000 in cash during the Christmas and New Year holiday period. The plan was to enter the supermarket on New Year’s Eve after it had closed by deliberately jamming a door with an apron that gave entry to the rear of the premises from an adjacent car park. The Applicant and his co-accused disguised themselves in dark clothing, and in order to not leave any forensic clues wrapped their footwear in plastic rubbish bags and wore gloves. Upon entering the supermarket in comparative darkness the plan called for the relevant security cameras to be spray painted so that the co-accused could avoid detection.

15. The Applicant’s co-accused then obtained the keys to the self-service cash registers from the manager’s office,[11] which were used to remove the front of the cash registers and gain access to their cash boxes. The Applicant’s co-accused then used a large angle grinder to cut the locks to the cash boxes in each cash register. The contents of the cash boxes were then emptied into what was described as a duffel bag held by the Applicant. An attempt to break into the store master-safe failed. However, 141 packets of cigarettes that were observed by the co-accused in the course of the burglary were stolen instead. It was remarkable that they were not detected before they even left the supermarket premises as several bystanders observed unusual movement in the premises and telephoned the police.[12] Additionally, a female employee of the Coles supermarket who worked in the bakery apparently arrived for work just after midnight on New Year’s Day and commenced working in the bakery department. She did not actually see anyone in the store but noticed the burning smell from the angle grinder and heard sounds, including the sound of coins, and assumed that other staff members like her had commenced work.[13] However, the police did not attend and the Applicant and his co-accused were able to escape from the scene of the crime.[14]

    [11] A fact that would almost certainly in its own right have led to their early detection.

    [12] The witness statements from two witnesses who observed this unusual activity are contained in the Supplementary G documents at pages 261 to 265.

    [13] Her statement is at page 270 of the Supplementary G documents.

    [14] The applicant in his evidence stated that he was not aware of the presence of any other employee or person in the supermarket premises during the commission of the crime. Although, it is not the role of the Tribunal to engage in speculation it does seem in the circumstances fortunate for the Applicant that he and his co-accused were not also charged with the crime of aggravated burglary.

16. After leaving the scene of the crime the Applicant and his co-offender went to the co-offender’s house. They put the money and the stolen cigarettes in the roof.

17. However, by just after 4am on New Year’s Day it became apparent to those staff present in the premises that there had been a burglary. The store manager attended later that morning at approximately 4:45am and reviewed the CCTV footage from several cameras in the supermarket. The footage from those cameras recorded the commission of the crimes in their entirety. More particularly he observed the Applicant opening the door to the plant room and placing an apron between the locking mechanism and closing the door. After this revelation the police attended the Applicant’s home and immediately arrested him. He confessed forthwith to his role in the crime and identified his co-offender straight away. The police were able to shortly thereafter arrest the Applicant’s co-offender and recover all the cash and cigarettes stolen from the co-offender’s residence.

18. In a record of interview the Applicant made full and frank admissions, cooperated with the police in every way and was subsequently bailed. He pleaded guilty at the earliest opportunity during the course of a committal case conference and was dealt with in due course by the County Court. Judge Lawson found that by reason of his conduct there was real utility in his plea of guilty, he had facilitated justice and the judge discounted his sentence accordingly. The Applicant also agreed to a restitution order in the event that the claim was made by Coles for any further damage suffered.

19. It should also be noted that Judge Lawson accepted that there was genuine remorse on the part of the Applicant for his role in the crime.

20. Additionally, there were presentence reports prepared and the Applicant was assessed for a Community Corrections Order. This assessment concluded that the Applicant was of a low risk of reoffending.[15]

    [15] The Community Correction Order Assessment Outcome Report which concluded that the Applicant was of low risk of reoffending is part of document G4 of the G documents at page 136.

    SOME OBSERVATIONS ON THE VIVA VOCE EVIDENCE GIVEN TO THE TRIBUNAL

21. The Applicant made a witness statement and also gave viva voce evidence from the witness box. His evidence-in-chief was extensive. Also, he was searchingly and probingly cross-examined by Ms Jackson for the Respondent.

22. Several things emerged from his evidence which are addressed here, not in any particular order of priority. Firstly, he was prepared to own up to his crimes and not avoid the consequences of them. He also agreed particularly when probed quite properly by Ms Jackson in cross-examination that he had lied to his wife on the evening of the crime, telling her that he had been out drinking when in fact he was robbing the supermarket of which he was a trusted employee. There were further probing questions put to him in cross-examination about why he had not reported some of the more bizarre behaviour of his co-offender prior to the commission of the offences in question, either to the police or his employer who had placed him in a position of trust and confidence. In a portion of cross-examination that was compelling he was asked whether his daughter was aware of his offending. He replied that she does not know of it and that he doesn’t want to tell her about it. The Applicant stated he wanted to be a good example for her not a bad example. Whilst it was obviously very difficult for him to confront, nonetheless he did so candidly. It was to his credit that he also conceded that these matters were not a good reflection on his character. He agreed to the matters put to him which indicated that he had gained an insight not only into the crimes he had committed but also his own personal failings with his wife and family. He explained how ashamed he was about what he had done and did express not only contrition and remorse,[16] but the desire to be a responsible member of the community.

    [16] The evidence that he gave concerning his remorse and contrition both in his evidence-in-chief and cross-examination were consistent with the observations made by Judge Lawson in her Reasons for Sentence on 11 July 2016.

23. Mention should be made of evidence given by the Applicant both in his witness statement and from the witness box concerning his use of what were described as “Kamini” tablets. He stated that he had been using these tablets, which can be purchased from Indian grocery stores but are apparently contain some form of opioid. Ms Jackson in forceful and effective cross-examination pointed out to the Applicant that of course when he was questioned by the police (and it should be also mentioned in the course of his plea before Judge Lawson) no mention was made of the use of these tablets or that the Applicant was in any way affected by them.[17] It seems unlikely to the Tribunal that if these tablets had affected the Applicant so as to impair his judgement and thinking as he now asserts that it would not have been raised at the very least at the plea hearing before the sentencing judge. It seems that this contention is more likely than not a recent invention or reconstruction by the Applicant in some way to reduce his culpability. However, this blemish on his evidence it is submitted is of limited impact because ultimately when the Applicant was confronted by the police during his questioning and retained counsel to conduct a plea on his behalf before the trial judge he unreservedly confessed to his crimes.

    [17] There was also reference to the use of these tablets in a psychologist's report prepared by Warren Simmons that was contained in the G documents.

24. He explained his commitment to his wife and daughter and his hopes for them in the future.

25. The Applicant’s wife gave evidence at the hearing. She was an impressive witness who obviously has had to deal with some considerable challenges as a result of her husband’s offending. There was evidence from her in some detail of the day that she found out that the Applicant had offended and also lied to her concerning his whereabouts on the previous evening. The distress caused to her by the unexpected arrival of the police at her home and immediate arrest of the Applicant was recounted. She explained how shocked she was not to mention how angry she became over it. She readily conceded that they had had fights concerning the mess that the Applicant had gotten himself into. She did not in any way attempt to gloss over her husband’s behaviour. Nonetheless, she has remained with him and demonstrated quite a strength of character when faced with such challenges. Her visits to the Applicant whilst he was imprisoned which were difficult for her and her daughter were recounted, not to mention the period that the Applicant was absent from the household.

26. She explained to the Tribunal the difficulties she experienced in marrying the Applicant due to the fact that they are from different castes. This had caused the Applicant’s parents not to wish to have much to do with either her or her daughter which obviously caused some distress.

27. Another compelling feature of her evidence was that concerning her daughter. An account was given by her of a range of illnesses suffered by her daughter, particularly when she had spent some time in India. Apparently, she has developed an allergy to pollution, dirt, milk products, cold weather, dogs and cats.[18] She is apparently doing well at school. She speaks English not put Punjabi.

    [18] The Applicant also gave evidence that his daughter fell ill when she was a three-year-old during a visit to India. She contracted typhoid and was seriously ill for some time.

28. She expressed a desire to hopefully have the Applicant remain in Australia, buy a house and establish a “bright future”. She is trained as a specialist make-up artist and stated that she hopes to be able in the future to open up an appropriate salon as a small business.

29. Critically, she expressed a view that the Applicant has become a very religious man, hardworking and dedicated to helping others. He has become very involved in the Sikh religious community. She corroborated his expressions of contrition and remorse and believed he had rehabilitated himself.

    THE PRIMARY CONSIDERATIONS

30. Paragraph 13(2) of Ministerial Direction no. 65, signed on 22 December 2014 (Ministerial Direction) with respect to revocation requests prescribes the Primary considerations to be taken into account by the decision maker. It states:

    …

    (2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:

    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.

    PROTECTION OF THE AUSTRALIAN COMMUNITY

31. Paragraph 13.1(1) of the Ministerial Direction requires the Tribunal, when considering the protection of the Australian community, to acknowledge the principle that the government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Paragraph 13.1(2) further states:

    (2)       Decision-makers should also give consideration to:

    (a)The nature and seriousness of the non-citizen’s conduct to date; and

    (b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

1. Although the crimes committed by the Applicant and his co-accused were once off and, as observed above, amateurish in their execution, they were noted by the sentencing judge as a serious commercial burglary.

2. It is not unreasonable for the Australian community to expect that they will be protected from violation of their property rights. The conduct of the Applicant and his co-accused as trusted employees of a major Australian corporation, and the violation of that trust by reason of their motivation solely to obtain money, is another disturbing aspect of their behaviour from which it is not unreasonable for the Australian community to expect protection. The community ought to be able to expect that employees in a position of trust will not act dishonestly in breach of their obligations. Employers ought to be able to have confidence that their employees will do the right thing and not act dishonestly.

3. Whilst we do not have any direct evidence in this case, commercial burglaries impact on trade and commerce in this nation in several respects. This impact ultimately affects the nation’s citizens. Apart from the obvious concerns for law and order there is the fact that almost certainly this kind of behaviour leads to increased insurance premiums which are borne by businesses and individuals collectively. Increased insurance premiums mean an increased cost of business and lower profitability. It is also affects a corporation’s cost of doing business and of necessity those costs are passed on to consumers in higher prices.

4. Secondly, it adds to the cost of running a business by reason of the necessity to add enhanced security measures to a business such as alarm systems, CCTV systems (as detected the Applicant in this case) and static guards. This cost of doing business leads to reduced profits or as noted earlier it is passed on to consumers in higher prices. Reduced profits of publicly listed corporations means that individual shareholders and other institutional shareholders such as employee superannuation funds, have their returns diminished. Diminished returns to individuals affects their standard of living (including that of retirees).

5. Thirdly, there is also of course the safety aspect related to such offending. The baker on the Coles premises on the day in question was working while a crime was being committed under the same roof. This is disturbing. What might have happened if she had seen them and perhaps confronted them? Employees are entitled to expect that they will carry out their duties in a safe, crime-free working environment.

6. Finally, of course there is the diversion of police and law enforcement resources caused by these crimes which, if they did not occur, could be better used elsewhere. The detectives who were engaged for some time investigating this crime and preparing the brief of evidence, including taking witness statements, could have been devoting that time to other matters. This opportunity cost is another matter which the community, not to mention the taxpayers of this nation, have to endure when crimes such as these are committed.

   Nature and seriousness of the Applicant’s conduct

7. Paragraph 13.1.1 of the Ministerial Direction relevantly provides that:

   (1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:

   a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

   b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

   c)        The sentence imposed by the courts for a crime or crimes;

   d)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

   e)        The cumulative effect of repeated offending;

   …

   g)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);

   …

8. The nature and seriousness of the crimes committed by the Applicant have been articulated in previous parts of these reasons. They will not be repeated other than to say that it was a serious commercial burglary by trusted employees who had been given excellent employment opportunities by Coles.

9. It is considered appropriate by the Tribunal to look at the factors identified in clause 13.1.1 of the Ministerial Direction as applied to the facts of the Applicant’s offending.

10. In conducting this analysis overall it has to be observed that most of the factors in this clause of the Ministerial Direction do not apply.

11. The crimes were not violent and/or sexual in nature.

12. They were not committed against vulnerable members of the community such as minors, the elderly and the disabled. The crimes were not committed against government representatives or officials due to the position they held or in the performance of their duties.

13. As observed earlier, the sentence was an 18 month term of imprisonment with a two-year Community Corrections Order. However, what is unique about this case is that there was restitution in full of the cash and cigarettes stolen from Coles. The net loss to Coles was $21,000 caused by the criminal damage.

14. This is the only offence committed by the Applicant in his time in Australia. There has been no trend of increasing seriousness or other offending. He appears to have learned his lesson and rehabilitated himself. Therefore, there is no cumulative effect of repeated offending.

15. There has been no provision of false or misleading information to the department within the relevant meaning of the clause. Further, although it is not strictly applicable the Tribunal notes that upon the arrival of the police at his home the Applicant immediately confessed to his crimes, cooperated with the police in every way and identified his co-offender. Such identification of the co-offender meant that he was arrested shortly afterwards and by reason of that fact all of the money and cigarettes were recovered in full from the roof cavity of the co-offender’s home. Additionally, as has been previously recorded the Applicant pleaded guilty at the earliest possible opportunity. Therefore, by his conduct the investigative processes of the Victoria Police were speedy and efficient so there was the minimal diversion of police resources. The Trial judge also observed that due to the guilty plea by the Applicant at the earliest possible opportunity both the victims and prosecutors were spared the necessity of a fully contested criminal trial. This had several effects, including the avoidance of the necessity of any witnesses to give evidence (not to mention the stress which this puts lay witnesses under) which is a commendable thing, and of course saved the state the inevitable costs of a trial.

16. None of the other factors identified in this paragraph 13.1.1 of the Ministerial Direction are applicable to the facts of the offending engaged in by the Applicant.

17. In this setting, whilst the Tribunal acknowledges the seriousness of the Applicant’s criminal behaviour, by reasons of all these matters and those also articulated elsewhere in these reasons, the offending does not fall at the high end of seriousness. In summary, the amateurish nature of the offending which was doomed to detection; the restitution of the cash and goods stolen; the fact that there has been no reoffending or sustained pattern of offending; the fact that the crime was not a violent and/or sexual in nature; the fact that the crime was not committed against vulnerable members of the community such as minors, the elderly and the disabled together with the Applicant’s cooperation with both the police and prosecutorial authorities lead to this conclusion.

    Risk to the Australian community should the Applicant reoffend

18. Paragraph 13.1.2 of the Ministerial Direction provides that:

    (1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

    (2)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

    a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

    b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

19. Should the Applicant reoffend, which does involve some level of speculation, it would appear that it is likely to be an offence against property rather than the person, as the Applicant has no history of this type of offending.

20. It is considered by the Tribunal that the risk of reoffending by the Applicant in this instance is comparatively low. There are several reasons why this conclusion has been reached.

21. The Community Correction Order Assessment made on 4 July 2016 by Jennifer Gross of the Department of Justice in Victoria assessed the Applicant as being at a low risk of reoffending according to the “Level of Service Risk Assessment Tool.”[19] The Tribunal has no reason to doubt the opinions expressed by an experienced corrections officer who has been requested by a Judge of the County Court to undertake such an assessment.

    [19] The Assessment is to be found at page 136 of the G documents.

22. There was also the evidence of the Applicant himself. As noted earlier he created an impression in the witness box of being a credible witness. He found his experiences in prison ones that he would never forget. They will be a constant reminder to him for the duration of his life. He also suffered the humiliation of imprisonment which clearly has had a significant effect on him. Having come from a Sikh background, to be incarcerated in a mainstream Australian prison was confronting. It gave him much food for thought. That thought and consideration had been long and deep over the time he had been in both prison and immigration detention.

23. Apparently, during his time in prison he was a model prisoner. In addition to working in a trusted position in the prison kitchen he completed several courses that will equip him for post-prison life. These courses include obtaining a license to operate a forklift, work at heights and a certificate in construction. He also undertook personal development courses and a drug and alcohol program.[20]

    [20] Details of the various courses undertaken by the Applicant are found principally at pages 149-151 and 96-100 of the G documents.

24. A report of 16 February 2018 from Warren Simmons psychologist was in evidence.[21] The report is referred to in its entirety for its full force and effect. The writer concludes that the Applicant is considered as at a low risk of reoffending. He further opines that he does not appear to pose a significant risk to the Australian community. Mr Simmons also opines that the Applicant’s relationship with his wife and daughter has also been a positive one. Overall, this report is fairly strong evidence that supports a conclusion that the Applicant is at a low risk of reoffending.

    [21] Page 144 of the G documents.

25. There was also the absence from his wife and child who have continued to support him, and his wife exhibited fondness and affection for him. His daughter has clearly given him a reason to rehabilitate and make a positive contribution to society.

26. There was also the evidence of several witnesses that he was actively involved in the Sikh community and involved himself in many of its religious activities.[22] There is an element of repentance involved in this and a desire to make a positive contribution to society in the future.

    [22] There were a significant number of statements in evidence before the Tribunal to this effect. Also there was a letter of 16 November 2017 from Mr Bains, the Vice President of the Supreme Sikh Council of Australia stating that the Applicant was well known to this organisation and other acquaintances as a person dedicated to Sikh practices and values. It explained that he had regularly been volunteering in the community kitchen, Sikh places of worship and regularly devoting his time towards community services including charitable, cultural and inter-faith celebrations. The author attested to his good character.

27. There was the evidence of several witnesses who spoke of his character. They were aware of his offending and expressed the view in various ways that it was out of character and they did not expect that he would reoffend. The Tribunal does place significant emphasis on this evidence in terms of his future prospects[23] and low risk of reoffending, amongst other things. In this vein there was also the evidence of future employment prospects which appear to be bright. They will not be positions of the same status nor will they have the same career path that his previous career at Coles offered him, but nonetheless he did seem genuinely prepared to try and make the most of the life ahead of him. He is a comparatively young man who it seems, if given a second chance, will be highly motivated to be a law-abiding member of society.

    [23] There were two statements, one from Mr Lovedeep Singh Khangura (who also gave evidence to this effect at the hearing) and Mr Sevak Singh Hundal offering the Applicant employment on his release,

28. For these reasons the Tribunal concludes that the Applicant’s risk of reoffending is comparatively low.

    Conclusions on protection of the Australian community

29. Taking into account the considerations outlined and the conclusions drawn under “Nature and seriousness of the Applicant’s offending” and “Risk to the Australian community should the Applicant reoffend”, the Tribunal concludes that the consideration of the protection of the Australian community weighs slightly in favour of revoking the cancellation of the Applicant’s visa.

    BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION

30. Paragraph 13.2 of the Ministerial Direction relevantly provides:

    (1)Decision-makers must make a determination about whether revocation is, or is not, in the best interests of the child.

    (2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.

    (3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

    (4)In considering the best interests of the child, the following factors must be considered where relevant:

    a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

    b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

    …

    d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

    e)Whether there are other persons who already fulfil a parental role in relation to the child;

    f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

    …

31. In taking into account this consideration in the Ministerial Direction the Tribunal recognises the concession made in paragraph 25 of the Respondent’s Statement of Facts, Issues and Contentions. This concession acknowledged that the Applicant’s daughter is seven years old and a permanent resident of Australia. The Minister conceded that it would be in her best interests for the mandatory cancellation decision to be revoked. He further submitted that the Tribunal should make a clear and positive finding to that effect, relying upon the decision of YNQY v Minister for Immigration and Border Protection.[24] This concession is acknowledged and the Respondent is to be commended for behaving as every model litigant should.

    [24] [2017] FCA 1466 at [14] – [22] and [34].

32. By way of completion several of the matters referred to in clause 13.2 of the Ministerial Direction will be addressed.

33. The relationship between the Applicant and his daughter obviously was devoted. To some extent it appears, in a misguided attempt to provide more money for his wife and daughter, the Applicant ill-advisedly engaged in the crimes he was ultimately jailed for. The Tribunal is satisfied that from the visits undertaken by the Applicant’s wife and daughter to him when in prison that the genuine connection between the Applicant and his daughter was maintained.

34. There were several notes written by the Applicant’s daughter together with sketches and handwritten cards comprising quite some number of pages,[25] which do provide further evidence of his daughter’s strong connection with her father. There is no reason to doubt the authenticity and meaning of these documents.

    [25] Pages 105 to 116 of the G documents.

35. It has been previously recorded in these reasons that the Applicant expressed a desire to play a positive parental role in the future with his daughter during her formative years. This is accepted by the Tribunal. There is evidence in the material that demonstrates that the Applicant’s daughter is progressing well at school and there is no reason to believe that she will not continue to do so. The evidence is strongly supportive of the contention that the Applicant will encourage his daughter to continue to progress well at school and have a very good life.

36. It must be of concern that the Applicant has not informed his daughter of his offending or enabled her to understand what he is done. It is nonetheless understandable and perhaps something that is better left to later years when she is more likely than not to be more adequately equipped to rationalise her father’s behaviour, let alone deal with it. As it is, one imagines that a seven-year-old girl visiting a prison to see her father must have already been impacted by that fact alone. The prison environment is a harsh one no matter how hard attempts are made to soften its impact during family visits.

37. Any separation of the Applicant from his daughter would have a detrimental effect given the material that is before the Tribunal concerning their relationship. This evidence does emerge from not only the Applicant and his wife but also the cards and drawings that were previously referred to that had been sent by the Applicant’s daughter to him. Were the Applicant to be returned to India and be separated from his daughter is not difficult to see that it would leave a gap in her life and probably a significant gap at that. The Tribunal was impressed by the evidence of the Applicant’s wife who unquestionably is devoted to her daughter and if she were left on our own, she no doubt would do her best to ensure that her daughter is raised in the best possible circumstances.

1. However, it is the conclusion of the Tribunal that at the end of the day it would be in the daughter’s best interests to be with her father and mother under the one roof, no doubt in Australia. If the family were to return to India the Tribunal is concerned that the daughter, having reached just short of eight years, would be confronted with several difficult challenges some of which may prove insurmountable. They include firstly, the issue of health and her propensity to suffer from allergies, which on the evidence of the Applicant and his wife worsened on their visits to India.[26] She is less likely to be able to obtain medical treatment for these in India. Also, she is more likely to be exposed to those health risks.

   [26] There was a medical certificate in evidence before the Tribunal from Dr Kotur dated 3 May 2018 recording that the Applicant's daughter suffers from chronic asthma causing repeated infections, due to which she has to miss school. Several items of medication were also referred to in that report which had been prescribed for the Applicant's daughter to treat various afflictions from which she suffered along those lines.

2. Another matter of concern to the Tribunal is if she is returned to India of course are the social implications from a marriage between two people of different castes. The Applicant’s daughter being a product of that union will not be well-received in certain circles (including with the Applicant’s parents) unlike the more socially progressive environment that is found in Australia. That fact is not underestimated by the Tribunal.

3. Finally, the Tribunal cannot be unaware of the disruption to the daughter if she is removed from the school where she seems to be doing well, the friends that she has made in the environment within which she has grown up and transplanted to India.

4. All of these things considered the best interests of the Applicant’s daughter weigh clearly, positively and significantly in favour of revoking the mandatory cancellation of his visa.

   EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

5. Paragraph 13.3 of the Ministerial Direction relevantly provides:

   (1)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 not revoke the mandatory visa cancellation of such a person. Non-revocation 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 hold a visa. Decision-makers should have due regard to the Government’s views in this respect.

6. It is not an unreasonable expectation of the Australian community that its citizens and those residing in it will obey the law. The Applicant did not obey the law and his criminal behaviour was plain and simply incomprehensible, and unacceptable.

7. Recently, Mortimer J in YNQY v Minister for Immigration and Border Protection[27] made the observation that, in substance, this consideration (paragraph 13.3(1) of the Ministerial Direction) is adverse to any person who has failed the character test and has been convicted of serious crimes. Her Honour further noted that this paragraph of the Ministerial Direction was in effect a deeming provision about how the executive government wishes to articulate community expectations, whether or not there is any objective basis for such belief. Her Honour concluded that it was inevitable that such a consideration will weigh against revocation and indeed that that was the intention of such paragraph in the Ministerial Direction.

   [27] [2017] FCA 1466 at [75]-[77]. The approach of Mortimer J in YNQY was also helpfully considered by Forgie DP in Re Ayache and Minister for Immigration and Border Protection [2018] AATA 310 at [60]-[75].

8. The Respondent quite fairly observes that the offending concerned was committed just over one year after the Applicant became a permanent resident. There must be limited tolerance for someone who has committed such serious offences so soon after being given permanent residency, who also held limited stay visas throughout the vast majority of his time in Australia (it should be borne in mind that he has resided in Australia since 17 January 2007).

9. However, as has been observed in other parts of these reasons upon a consideration of the evidence furnished it is concluded that, as the relevant language of the Ministerial Direction dictates, there is not an unacceptable risk that he will breach the trust that the Australian community might repose in him again were the mandatory cancellation to be revoked.

10. Ultimately, this factor weighs against the revocation of the mandatory cancellation of the Applicant’s visa.

    OTHER CONSIDERATIONS

11. There are other considerations that should be considered in revocation matters which are identified in paragraph 14 (1) of the Ministerial Direction. It provides that:

    (1)       …These considerations include (but are not limited to):

    a)        International non-refoulement obligations;

    b)        Strength, nature and duration of ties;

    c)        Impact on Australian business interests;

    d)        Impact on victims;

    e)        Extent of impediments if removed.

12. On the evidence before the Tribunal, international non-refoulement obligations, impact on Australian business interests and impact on victims, do not arise for consideration and accordingly no weight is given to those considerations. However, on the evidence before the Tribunal and the submissions of both parties, strength, nature and duration of ties to Australia and the extent of impediments if removed both warrant further consideration.[28]

    [28] Neither the Applicant nor the Respondent either in their respective Statement of Issues, Facts and Contentions or orally, made any submissions concerning these considerations.

    STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA

13. The Ministerial Direction at paragraph 14.2 addresses the matters to be taken into account for this consideration:

    (1)The Strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:

    a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

    i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and

    ii.More weight should be given to time the non-citizen has spent contributing positively to the Australian community.

    b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

14. Much has already been canvassed earlier in these reasons about the subject matter concerning the strength, nature and duration of the Applicant’s ties to Australia. He has resided in Australia since January 2007. He arrived on a student visa. He was granted a Class VB Skilled – Independent (subclass 885) Visa on 20 October 2014.

15. He has a wife and daughter who are permanent residents of Australia. The impact upon them if he were to be required to return to India will be significant. He has a brother-in-law and sister-in-law residing in Australia together with three cousins. Some of these people gave evidence on his behalf.[29]

    [29] Evidence was given by his cousins Hardeep Singh and Ranjeet Bhangu (amongst others) about his connections with family, friends and the Sikh community. Prior to his incarceration apparently he volunteered at the Sikh temple every week.

16. He has many friends and cultural connections in Australian through his involvement in the Sikh community.

17. In considering this part of the Ministerial Direction the Tribunal is also required to consider what contribution the Applicant has made to the Australian community. Of course there is the contribution he has made as a husband and father as noted earlier. There was significant evidence of the employment history of the Applicant prior to his commission of the crime is in question. He had carved out for himself a good career with Coles and had a bright future until he derailed it. This was indeed noted by Judge Lawson in her Reasons for Sentence.

18. There is also the evidence before the Tribunal concerning the Applicant’s contribution to the Sikh community which must weigh in his favour.

19. Until his offending it would have to be said that he has made a positive contribution to the community. Overall when one assesses the evidence before the Tribunal concerning this factor it does way to some reasonable degree in favour of revoking the mandatory cancellation of his visa.

    EXTENT OF IMPEDIMENTS IF RETURNED TO INDIA

20. In assessing the extent of impediments that the Applicant would face if he were to return to India paragraph 14.5(1) of the Ministerial Direction requires the Tribunal to undertake an assessment of the extent that such impediments may affect him establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of the country), taking into account his age and health, whether there are substantial language or cultural barriers and any social, medical and/or economic support available to them in that country.

21. Several things emerge when a consideration of this portion of the Ministerial Direction is assessed. His parents and brother still reside there. The evidence from several of the witnesses who gave character evidence on his behalf indicates that he comes from a good background and respected family. Apparently, his father had a responsible position with a bank in India.

22. There would not be any language barriers nor really any cultural barriers. The Applicant did assert that because he is estranged from his family due to his marriage from someone of a different caste that this would make life difficult. It is appreciated that his marriage no doubt will have caused some difficulty with his family but it does not appear to be in the scheme of things an insurmountable barrier to re-establishing his life in India.

23. The Applicant is young with no apparent health issues. He has qualifications obtained in Australia, including in horticulture, which presumably would be of value in India for the purposes of re-establishing a career and the life.

24. Having considered these matters the Tribunal concludes that there are no real impediments to removal to India which weigh in favour of the Applicant.

    CONCLUSION

25. The Applicant committed a serious commercial burglary whilst an employee of Coles in a significant position of trust, being the duty manager of its Brighton store. It cannot be understated. The Australia community is, as outlined under the Primary Considerations of the Ministerial Direction, entitled to be protected from such conduct.

26. However, when one assesses the criteria that the Tribunal is required to take into account in assessing the nature and seriousness of the Applicant’s conduct as specified in paragraph 13.1.1 the Applicant’s offending was of the lower end of serious for the reasons articulated above. The circumstances of his offending overall did not attract a description captured by the language of that paragraph. He has paid a heavy price for his offending, the importance of which the Tribunal accepts he now realises. He cooperated with the police, pleaded guilty at the earliest opportunity and served significant time in jail. The proceeds of the crime were recovered in full.

27. It is considered that he is a low risk of reoffending. This weighs in his favour.

28. The strength nature and duration of his ties to Australia are significant, particularly with his wife and daughter, together with several other family members and friends residing here. His wife and daughter will suffer significantly if he is required to return to India.

29. There are no significant impediments to the Applicant in the event that he were to return to India.

30. When these matters are collectively considered they are finely balanced. However, the primary consideration concerning the best interests of minor children in Australia who are affected by the decision weigh strongly in the Applicant’s favour. In reaching this conclusion the Tribunal finds that the concession made by the Respondent that the Tribunal should make a clear and positive finding to that effect is critical to the decision reached. The concession accords with the evidence concerning the Applicant’s daughter that has been adduced before the Tribunal. This evidence was considerable and certainly more extensive than that before the decision-maker when the reviewable decision was made.

31. Therefore, when weighing up all the relevant considerations referred to above, it is the best interests of the Applicant’s daughter that swings the evidentiary pendulum in favour of revoking the mandatory cancellation of the Applicant’s visa. The preferable decision is therefore to revoke the mandatory cancellation of the Applicant’s visa.

    DECISION

32. The Tribunal sets aside the decision under review and in substitution decides that the mandatory cancellation of the Applicant’s Class VB Skilled – Independent (subclass 885) visa be revoked under s 501CA of the Act.

I certify that the preceding 100 (one hundred) paragraphs are a true copy of the reasons for the decision herein of R. Cameron, Senior Member

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

Associate

Dated: 14 June 2018

Date of hearing:	31 May 2018
Counsel for the Applicant:	Mr Greg Hughan
Solicitor for the Applicant:	Ms Sarah Thompson, Carina Ford Immigration Lawyers
Solicitor for the Respondent:	Ms Melinda Jackson, Australian Government Solicitor