Bhardwaj and Minister for Immigration and Border Protection (Migration) - [2017] AATA 86

Bhardwaj and Minister for Immigration and Border Protection (Migration) [2017] AATA 86 (31 January 2017)
Division:GENERAL DIVISION
File Number: 2016/6209
Re:Vishal Bhardwaj
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Senior Member T. Tavoularis
Date:31 January 2017
Place:Brisbane

The decision under review is set aside. In substitution, the Tribunal is satisfied the discretion in s 501(1) of the Migration Act 1958 (Cth) to refuse the Applicant’s Regional Employer Nomination (Permanent) (Class RN) visa on character grounds should not be exercised.
..........................[sgd]........................
Senior Member T. Tavoularis
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Applicant is a citizen of India – s 501 character test – Applicant has history of offending in Australia – visa was refused - whether primary considerations weigh against or in favour of Applicant – discretion should be exercised in favour of the Applicant – decision under review set aside and varied – Applicant’s visa should be granted

Legislation
Migration Act 1958 (Cth) s 499, 500, 501

Secondary Materials
Direction No. 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under
s 501CA (“the Direction”)

REASONS FOR DECISION
Senior Member T. Tavoularis
31 January 2017
INTRODUCTION

This is an application for review of the decision by a delegate of the Minister for Immigration and Border Protection (“the Minister”) to refuse Mr Vishal Bhardwaj’s (“the Applicant”) application for a Regional Employer Nomination (Permanent) (Class RN) visa pursuant to s 501(1) of the Migration Act 1958 (Cth) (“the Act”). Under s 500(1)(b) of the Act, this Tribunal has jurisdiction to review the decision of the Minister.
BACKGROUND
The Applicant is a citizen of India. On 12 December 2008 he entered Australia holding a Student (Temporary) (Class TU) visa.
On 24 April 2015 the Applicant lodged an application for a Regional Employer Nomination (Permanent) (Class RN) visa. On 22 June 2016 a delegate of the Minister issued a Notice of Intention to Consider Refusal in relation to that visa.
The Minister asked the Applicant to provide a response in relation to his offences, some of which can be particularised as follows: one count of dangerous operation of a motor vehicle, four breaches of a domestic violence protection order, one conviction of imposition, and a charge of being drunk in a public place.[1]
[1] See Exhibit 10 – Summons material from QPS, pp 4 & 5.
On 28 September 2016 a delegate of the Minister made a decision to refuse to grant the visa under s 501(1) of the Act. The Applicant was notified of this decision on 11 November 2016.
On 17 November 2016 the Applicant applied to this Tribunal for a review of the visa refusal decision.
ISSUES
The Minister’s decision to refuse the Applicant’s visa was made on the ground that the Applicant did not pass the character test due to s 501(6)(d) of the Act. In reviewing this decision I must consider and address both of the following issues:
(a)whether Mr Bhardwaj passes the “Character Test” as defined in s 501(6) of the Act; and
(b)whether, having regard to the considerations in Ministerial Direction No. 65 (“the Direction”), the discretion in s 501(1) of the Act to refuse this Applicant’s visa should be exercised.
ISSUE 1: DOES MR BHARDWAJ PASS THE CHARACTER TEST?
The Applicant disputes the Respondent’s contention that he does not pass the character test.
Section 501(6) of the Act provides a number of circumstances in which someone will not meet the “Character Test”. Most relevant here is s 501(6)(c) and/or (d), under which a person does not pass the character test if:
(c) having regard to either or both of the following:
(i) the person's past and present criminal conduct;
(ii) the person's past and present general conduct;
the person is not of good character; or
(d) 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; or
(ii) harass, molest, intimidate or stalk another person in Australia; or
(iii) vilify a segment of the Australian community; or
(iv) incite discord in the Australian community or in a segment of that community; or
(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way;
As mentioned above, the Applicant has been dealt with by a Court for the following offences: [2]
·     On 2 March 2010 - one count of dangerous operation of a motor vehicle, no conviction was recorded, he was fined $650 and disqualified from driving for 6 months;
·     On 24 April 2014 – one count of contravention of a domestic violence order, and one count of breach of bail. On both charges no conviction was recorded and the Applicant entered into a recognisance in the sum of $200 to be of good behaviour for a period of three months;
·     On 20 May 2014 – one count of contravention of a domestic violence order. The Applicant was fined $300, no conviction was recorded. He was allowed one month to pay the fine and in default of payment, he was to serve a custodial term of 3 days;
·     On 27 August 2014 – one count of imposition, and two counts of contravention of a domestic violence order. Due to these three charges, the sentencing Magistrate forfeited the Applicant’s abovementioned recognisance and compelled him to pay that sum ($200) on or before 28 days. He was then resentenced for the abovementioned offence to which the recognisance applied such that (1) no conviction was recorded and (2) he was fined $200 with a time to pay period of 28 days. With reference to the one count of imposition, the sentencing Magistrate (1) recorded a conviction, and (2) imposed a custodial term of three months, wholly suspended for an operational period of 18 months. With reference to the first count of contravening a domestic violence order, the sentencing Magistrate (1) recorded a conviction, and (2) imposed a fine of $750 to be paid within 28 days. With reference to the second count of contravening a domestic violence order, the sentencing Magistrate (1) recorded a conviction, and (2) imposed a fine of $1,000 to be paid within 28 days. Each of the sentences imposed on this date were ordered to be served concurrently.
·     On 16 October 2014 – one count of being drunk in a public place. The Applicant was released absolutely and no conviction was recorded.
[2] See Exhibit 10 – Summons material from QPS, pp 4 & 5.
It is initially necessary to review and consider the Applicant’s criminal history and pattern of behaviour to ascertain whether he is not of good character as anticipated by

s 501(6)(c) of the Act.
Any imputation as to character in relation to this Applicant derives from his tumultuous relationship with his former wife. The circumstances leading to the marriage, and indeed, the several months following it, were the subject of detailed oral evidence provided by the Applicant at the hearing.
At first blush, the relationship could cynically be viewed as a marriage of convenience to facilitate the achievement of some kind of visa/ residency status for this Applicant. I am satisfied on the balance of probabilities this was not such a marriage.
The Applicant’s evidence clearly points to a serious intention on his part to marry the lady with whom he had fallen in love. For example, he provided evidence of (1) entering into the lease of a residential property in Sunnybank that would serve as the matrimonial home after the marriage, (2) purchasing furniture and other homeware for the proposed matrimonial home, (3) converting from the Hindu religion to the Muslim faith to further ingratiate himself with his proposed wife’s family and her community and to otherwise ensure – to the extent he could – that the marriage was viewed as proper and official within her community, (4) openly and seriously stating his intention of marriage to the family of his proposed wife, and (5) ensuring both the proposed wife and the circumstances of cross-religious marriage were appropriately explained and accepted by his own family, then comprising his late mother and sister.
To the Applicant’s chagrin and frustration, despite what seems to have been his best endeavours to become married to the lady he loved, the marriage was unstable and volatile from the outset. As I understood the evidence, the principal cause of this instability derived from a non-acceptance of the union by the wife’s family. Within four weeks of the marriage the Applicant was served with divorce papers and the wife departed Australia for Pakistan as if to deliberately absent herself from him. Although of no critical importance to my present consideration, the antagonism towards the union seems to largely have its roots in the historical and unfortunate conflict between Hindu Indians and Muslim Pakistanis.
The Applicant is 28 years of age and strikes me as a man of contemporary orientation who is sufficiently broad minded to see beyond cultural differences and to instead focus on the achievement of a happy and stable marriage. Be that as it may, in order to try and assuage the concerns of the wife’s family, the Applicant consulted the president of the local Muslim community of which the wife and her family were active members.
Upon advice allegedly provided by the president, the Applicant sort to involve and ingratiate himself with the wife’s local Muslim community. He attended Muslim religious services at the local Mosque and otherwise sought to befriend and become associated with Muslim youth that were known to the wife and who were part of her social fabric.
He endured discriminatory behaviour and derision from the people he sought to befriend but nevertheless thought the ultimate prize of marrying the woman he loved was worth it. He therefore took it very badly when he noticed the adverse influence of the wife’s family on the marriage was gaining ascendency over the relationship underlying it.
As mentioned, very quickly after the marriage the wife departed for Pakistan and made herself unavailable to the Applicant. Two additional things happened very quickly and, it would seem, self-servingly, after she departed for Pakistan. Within a month of her abandonment of the marriage, the wife had retained lawyers with instructions to notify the Applicant of her intention to dissolve the marriage.[3] In March 2014, shortly after her return from Pakistan, the wife caused an application for a domestic violence order to be made. A protection order then followed. One of the conditions of that Order was that the Applicant was not to contact the wife.
[3] See Exhibit 3, G documents - p 162 – Letter from Couper Geysen dated 11/11/2013.
His offending in relation to the contravention of the domestic violence order takes its roots from his rather frantic and persistent efforts to regain her commitment to the marriage and to discover the fundamental reasons behind her leaving him.
Behaviour amounting to domestic violence and, in a graver sense, behaviour constituting a breach of any domestic violence order, is at the forefront of our community’s social awareness. As it should be. As with any category of offending, there is, in the sphere of domestic violence, layers or categories of severity. Viewed objectively, the Applicant’s four breaches of the domestic violence order made against him can all be traced to his efforts to re-connect with his wife and to otherwise resolve the calamity he was experiencing as a result of her leaving him in circumstances where that had nothing to do with anything he had done or failed to do.
To my mind, this Applicant does not and should not fail the character test solely due to his four breaches of the domestic violence order. None of the breach allegations were the subject of a contested hearing. The Applicant readily accepted the various findings of a breach. He otherwise submitted to and fully discharged all obligations imposed upon him by the sentencing regime imposed for each breach.
It is notable that none of the four breaches involved the application of actual physical violence. However, I think the circumstances surrounding the commission of the offending constituting the imposition charge are perhaps of greater relevance to an assessment of this Applicant’s character.
Significantly, the Applicant’s evidence on this issue seemed to evolve through the course of the hearing. His initial position regarding communication with the family doctor was that it was motivated by a recommendation he received from the president of the local Muslim community whom he consulted for the purpose of saving the marital relationship.
The initial version of the Applicant’s evidence on this particular point was that the president told him to “go and get some type of evidence” to show that the marital relationship between the Applicant and his wife had been consummated. The president then apparently assured the Applicant that he would “make good” the relationship between the Applicant and his former wife. This “make good” process apparently involved the president liaising with the wife’s family for the purposes of convincing them of the appropriateness of the marriage between the Applicant and his wife.
In a previous statutory declaration[4], the Applicant attested to the president giving him a direction to “get some medical evidence”. In oral evidence at the hearing, the Applicant moderated his position such that he said the president told him to obtain “something” to show that the relationship was valid and otherwise consummated.
[4] Exhibit 3, G Documents, pp 144-146.
Whatever the position may be as to how the Applicant came to find himself in not one but two appointments with the family doctor (after the wife had left him) is a matter that warrants close scrutiny and analysis and which, as I will seek to explain, goes to the heart of this Applicant’s character.
For me, it is a matter of concern that the Applicant cannot, with absolute certainty of recollection, tell us exactly what the president told him should be obtained from the family doctor or from anyone else. I note there were two attendances by the Applicant upon the doctor. According to his evidence, on the first visit the Applicant sought medical records of his wife from their doctor. She (the doctor) directed him that any release of the wife’s medical data to him would not occur without provision of a duly signed and appropriately worded medical authority.
The Applicant’s evidence at the hearing was that he then fabricated an authority and fraudulently applied his wife’s signature to that document in order to facilitate release of the wife’s medical information, which was duly provided to him.
He then, appallingly in my view, published that medical data on Facebook. I reject, on an outright basis, any suggestion of mitigation around the circumstances of this conduct arising from (1) the publication only lasting for a short time, and (2) that the material was only published to an apparently small coterie of Facebook friends at the relevant time. Neither do I have any regard to or respect for any submission that the Applicant promptly removed the data from the internet upon an apparent request from the wife. The mere act of publication exposed the wife to an unredeemable position of compromise. This was squarely within the knowledge of this Applicant at the very instant he activated electronic publication of the data. The act of publication is to my mind, therefore, beyond explanation or justification.
At the hearing it was put to the Applicant that the very act of publication of the data would bring shame and embarrassment upon the wife and her family/community. The Applicant acknowledged this and added that his primary purpose behind publication was to bring her back to the relationship.
At the hearing, the Applicant said he showed the medical information to the Muslim community president but that the president then ceased contact with him. At a friend’s suggestion, knowing the wife checked Facebook, he made the unfortunate decision of posting the medical information online. There is credibility to this evidence because one could not imagine a scenario where the president told him to obtain information (possibly including medical information) about the wife and to then publish that information on the internet. I think a more likely explanation of the conduct surrounding the fraudulent acquisition of information from the doctor and its publication is based on the Applicant’s (by then) desperation to save the relationship.
The timing of the publication is also interesting. It occurred some six months after the wife left the marriage in November 2013. The factual matrix giving rise to the domestic violence milieu occurred in March – April 2014. In May 2014, we have the Applicant’s visits to the doctor and the obtaining of the medical information by fraudulent means, apparently motivated by a direction from the president. The act of publication occurs at the end of this sequence when, on one view, the Applicant may have experienced a conviction that the relationship was over.
The malicious nature of publication is endorsed by the learned sentencing Magistrate who, in pronouncing the behaviour to be “vindictive and nasty”[5] further said:
“There is no other explanation for it. It is an outrageous thing to do, even for someone who is not from your culture, who doesn’t understand our culture – to think that you would stoop so low to hurt someone who you had married. I appreciate that you are wounded because she left you within weeks of being married to you, and that’s hurt you deeply, to your very core, but your reaction to that has been criminal, and it has seen you now stand up and plead guilty to an offence that is so serious, the Court must impose a sentence of imprisonment.” [6]
[5] Exhibit 6, Auscript Transcript of Proceedings – Sentencing Remarks 27 August 2014, page 2, line 33.
[6] Exhibit 6, Auscript Transcript of Proceedings – Sentencing Remarks 27 August 2014, page 2, lines 33-39.
The Applicant’s credentials as to good character were further brought into question as a result of his evidence in response to questions about several additional offending episodes appearing in his criminal and/or driving history. The recurring behaviour by this Applicant, when confronted with a situation of imminent difficulty or risk or when he is otherwise placed in a position of not being able to explain something, is to suddenly change his story and revert to a position he thinks best suits his purposes.
Firstly, the Applicant appeared less than convincing in his responses to questions about the circumstances of the charge of dangerous operation of a motor vehicle in June 2009. His initial position when interviewed by police some months after the incident was that the green light was in his favour and that the other vehicle (a garbage truck) effectively ran a red light. When it was put to him that (1) there was in-car camera footage of him effectively falling asleep at the wheel and demonstrably not driving with due care and attention, and (2) there was a signed statement from the driver of the garbage truck that in fact he had the green light and that the taxi driven by the Applicant had run the red light, the Applicant then retreated into an alternate position of not being able to accurately recall the incident due to the serious injuries he suffered as a result of the collision.
Secondly, while being apprehended for disqualified driving in June 2010, the Applicant was asked to supply a breath specimen and a blood specimen by attendant police. It was put to him at the hearing that police could smell alcohol on his breath at the roadside. In explaining his refusal to provide a breath specimen, the Applicant told the hearing that he could not open his mouth to a sufficient extent to facilitate exhaling into the roadside breathalyser due to titanium plates inserted into his jaw as a result of injuries he sustained abovementioned collision in the 2009. At the hearing it was put to him by the Minister’s representative that this explanation was clearly less than plausible because he could obviously open his mouth to a sufficient extent to communicate with attendant police to make his refusal to provide the breath specimen clear to them. The Applicant then told the hearing that his level of proficiency in English at that time was poor and that he could not properly communicate his story to attendant police and that somehow, he came to be charged with this offence because of a lack of capacity (at that time) to communicate in English. In a similar vein, the Applicant’s evidence about how he came to be driving was, to my mind, less than credible. When questioned about how he came to find himself in the city on the evening in question, he said that:
·     His friend had borrowed the car for the evening and had driven it into the city;
·     The car was due to be sold by the Applicant to this friend the following morning for $900;
·     During the evening (at about 10:30pm) the friend contacted the Applicant and apparently told him he was over the drink-drive limit and could no longer drive the car home;
·     He (the Applicant) then caught a bus from Sunnybank into the city with a friend, to collect the car and drive it home, to ensure the sale transaction proceeded the following day because the Applicant was desperate for money at that time;
·     He (the Applicant) then had a couple of drinks with his friend (ie the one who came into the city with him from Sunnybank) and then drove home whereupon he was pulled over and sought to be breath-tested.

One can appreciate the less than plausible and self-serving nature of this explanation. It purports to justify (1) the Applicant’s unlicensed driving (to protect the commercial transaction around the sale of his car), (2) how it came to be that the police could smell alcohol on his breath on the roadside (the couple of social drinks with the friend who came into the city with him on the bus) but (3) seriously calls into question his excuse or incapacity to provide a specimen of breath in circumstances where he was enjoying social drinking very shortly before his roadside detection.
Thirdly, the Applicant’s explanation of the traffic offence committed on 21 October 2014 is likewise spurious. This conduct involved executing a U-turn in a motor vehicle in an aggressive or untoward manner so as to cause observing police to charge him with “start/drive vehicle in a way that makes unnecessary noise or smoke”. At the hearing it was put to him that this behaviour was flagrant and showed a marked disregard for lawful authority. The Applicant responded with evidence to the effect that:
·     he knew the police were in his immediate vicinity;
·     the overly rapid revolution of the tyres resulting in the smoking effect was due to his car having manual transmission and somehow having a tendency to cause the tyres to do so, especially when initially driving off; and
·     there was gravel and loose bits of road underneath the tyres that caused them to inadvertently slip and make a screeching noise which then attracted the attention of observing police.
When the absurdity of this conduct was put to him – given that it was done in the plain view of nearby police – the Applicant, consistent with the manner in which he seemed to tailor the evidence, defaulted to a position of saying he saw the police car in his immediate vicinity but did not think there were any police officers in it that could have observed his conduct.
In crystallising a view of this Applicant’s character I will categorise his offending into two categories. The first category I will label “perhaps explainable”. Into that category I would place the circumstances surrounding the making of the domestic violence order and its several breaches. Also into that category I would place the totality of his traffic history but also include the dangerous operation of a motor vehicle charge that appears in his criminal history. I do not make an adverse finding about his good character on the basis of this category of offending.
However, I make a different finding with reference to the second category of his offending, which I label as “unjustifiable and inexcusable”. Into this category I squarely place the facts, circumstances and conviction relating to the charge of imposition. I do not accept that any president or other leader of any community, especially one as traditional and principled as the Muslim community, would advise this Applicant or anyone else to fraudulently obtain private medical information about a third party as a means of resolving a dispute or impasse within that community. The only logical conclusion is that the Applicant sought and fraudulently obtained the wife’s medical data on his own volition.
I further find – in accordance with this category of “unjustifiable and inexcusable” offending - that the Applicant deliberately and in a premeditated way sought to publish the material as a means of either: (1) put at its highest, causing the wife to return to the marriage, or (2) more likely, to intentionally shame the wife and her family to their community as a parting shot when faced with the reality that the marriage was over.
I therefore find, pursuant to section 501(6)(c)(i) of the Act, that this applicant to not be of good character having regard to the totality of his past criminal conduct and the behavioural elements surrounding it.
I now move to the next issue under consideration: whether the discretion under s 501(1) of the Act to refuse the Applicant’s visa should be exercised.
ISSUE 2: SHOULD THE DISCRETION IN S 501 BE EXERCISED TO REFUSE MR BHARDWAJ’S VISA?
The Legislative Framework
In considering whether to exercise the discretion in s 501(1) of the Act, the Tribunal is bound in accordance with s 499(2A) to comply with Direction No. 65 (“the Direction”). The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it 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.[7]
[7] Direction No. 65, paragraph [7(1)(a)], see Exhibit 3, p 49.
The Direction requires that any exercise of the discretion in s 501 is to be informed by the Principles in paragraph 6.3. Briefly stated, they are as follows:
a)    Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
b)    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;
c)    A non-citizen who has committed a serious crime should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia;
d)    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 future risk of similar conduct in the future is unacceptable;
e)    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;
f)     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 be allowed to come to or remain permanently in Australia;
g)    The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal for minor children and other immediate family members in Australia are considerations for determining whether to exercise the discretion.
The considerations relevant to refusing a non-citizen’s visa application appear in Part B of the Direction. Paragraph 11 of the Direction provides the three primary considerations that the Tribunal must take into account:
a)    Protection of the Australian community from criminal or other serious conduct;
b)    The best interests of minor children in Australia; and
c)    Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision-maker must take into account the primary and other considerations relevant to the individual case. The other considerations which must be taken into account are provided in a non-exhaustive list in paragraph 12 of the Direction. These considerations are:
(a)International non-refoulment obligations;
(b)Impact on family members;
(c)Impact on victims; and
(d)Impact on Australian business interests.
Primary Consideration A: Protection of the Australian Community from Criminal or Other Serious Conduct
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 11.1 of the Direction further provides that 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.
(a) The Nature and Seriousness of Mr Bhardwaj’s Conduct to Date
On first impressions, the Applicant’s conduct to date is of a serious nature. Most notable amongst his offences is the conviction for imposition. However, his criminal record is not lengthy, relative to both his age and the total period of time he has resided in Australia. Aside from the work-related incident culminating in the conviction for dangerous operation of a motor vehicle in March 2010, his offending can be isolated to a period of six months (from March to September 2014), comprising both a period and a pattern of conduct that is directly referrable to his tumultuous relationship with his former wife.
Similarly, one does not glean any sense of notable seriousness in the offending of this Applicant by having regard to the sentences/penalties that the Courts have imposed on him for his offending. He has not actually been incarcerated. Two points need clarification here: (1) for the offence of imposition he was sentenced to a custodial sentence of three months but it was wholly suspended for an operational period of 18 months and was presumably free to go from the Court on the very day of his sentencing; and (2) he was temporarily detained in a police watch house in Cairns as a result of being intoxicated on 30 September 2014. I accept his evidence given at the hearing to the effect that he was released from the watch house upon sobering up. I also note the sentencing comment in his criminal history reads “no conviction recorded, released absolutely”.
The serious and regrettable behaviour of this Applicant constituting the domestic violence component of his criminal history is also notable. The following points should be made about his domestic violence history:
·     The conduct causing an apprehension of Domestic Violence in the wife amounted to repeated and consistent messaging and/or other attempts at communication to regain her affection;
·     There was no allegation or finding of any actual physical violence from the Applicant toward the wife;
·     The Applicant readily consented to the making of the Domestic Violence Order;
·     The four acts of contravention, regrettable as they should all be regarded, were readily admitted by the Applicant;
·     The first breach was penalised by the imposition of a $200 good behaviour bond with no conviction recorded. The second breach was penalised by way of a fine of $300 with no conviction recorded. The third breach was penalised by way of a $750 fine and a conviction was record. The fourth breach was penalised by way of $1000 fine with a conviction being recorded;
·     The Applicant has met payment of all applicable fines and (aside from the breaching conduct) has otherwise met the requirements of the respective penalties imposed on him.
In consideration of the above regime of offending, I determine that the Applicant’s conduct has not been of a violent or very serious nature. Consequently, I do not feel compelled to find that this factor should weigh heavily in favour of exercising the discretion to refuse the Applicant’s visa.
(b) The Risk to the Australian Community Should Mr Bhardwaj Continue to Commit further Offences or Engage in Other Serious Conduct
Paragraph 11.1.2(3) of the Direction provides two of the factors the Tribunal must have regard to in determining the risk to the Australian community of the Applicant reoffending or continuing to engage in other serious conduct. Stated briefly they are:
(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 reoffending; and evidence of rehabilitation achieved by the time of the decision, and the duration of the intended stay in Australia.
The Nature of Potential Future Harm
Of particular relevance to my consideration of this aspect of the matter is the report of the consultant psychologist,[8] Dr Luke Hatzipetrou. He provided a lengthy and fulsome report. He also gave detailed oral evidence at the hearing of this matter.
[8] Exhibit 9, Report of Dr Luke Hatzipetrou, dated 20 December 2016.
Dr Hatzipetrou’s report and evidence were both interesting and informative. His evidence in chief was given at two separate times. In the first session, the culmination of his evidence was that this Applicant posed a low risk of re-offending. Notably, he made these points:
·When asked about his assessment of the Applicant’s risk of re-offending he opined:
othat the Applicant was in the low range of general risk of re-offending;
othat there was a low risk of him causing imminent harm to others;
othere were identifiable mitigating factors against the risk of re-offending such as the Applicant’s level of education, his consistent employment, his stable upbringing and his personal history;
othe Applicant’s offending principally derived from his largely dysfunctional relationship with his former wife and his recourse to alcohol after this;
ooutside of the above factors, Dr Hatzipetrou opined that there is no risk of any emergence of a psychopathy that would increase his risk of re-offending;
ohe could identify no marked impulsivity in this Applicant to which a risk of re-offending could be attributed;
othe Applicant has taken remedial steps to further lower the risk of any re-offending, including a relocation to Cairns;
othere is no evidence in this Applicant’s past or present about him having difficulty in his interaction with females. He found no evidence of problematic interactions in this Applicant’s subsequent relationships with females;
ohe said that individuals with a medium to high risk of re-offending often present with a different set of behaviours, none of which were present in this Applicant;
·When asked about the specific risk of this Applicant committing further acts of domestic violence, Dr Hatzipetrou said:
oThe risk of committing further acts of domestic violence was low, noting there was never any physical harm to the victim and the breaching behaviour largely involved telephonic or electronic attempts to contact her regarding the status of their relationship;
oThe offending pinnacle clearly arose when he published her medical records on Facebook, to get her attention and for possible revenge;
oThe Applicant was faced with circumstances that were not typical of other relationships, and he was not aware of the necessary cultural adjustments arising from marrying into Islamic culture;
oThe Applicant demonstrated remorse and an understanding of the possible psychological impact of his actions on his former wife;
oIt was unlikely this Applicant would generalise this type of behaviour to other situations.
Dr Hatzipetrou responded to questions in cross-examination (during the first session of his evidence), as follows:
·     He conceded that this Applicant could not be considered to be of “no” risk of re-offending, but that he certainly was of “low” risk. He qualified that answer by saying that the reporting tools to which he had regard in drafting his reports make it impossible to say “no” risk;
·     He conceded he was surprised that the Applicant had not received independent treatment for alcohol abuse and/or any mental health issue he may have been experiencing. He added that in the case of this Applicant, the evidence pointed more towards his behaviour having its basis in an acute reaction to the circumstances of his marital breakdown and separation, rather than constituting some type of biological model of depression;
·     If this Applicant were to find himself in a future relationship which then ended there may be potential for this behaviour to be repeated, but that he has clearly learnt from this experience and that he does have the support of his sister, her family, and circle of friends. Dr Hatzipetrou thought the Applicant now demonstrated more maturity about his approach to relationships by reflecting on the relationship with his former wife;
·     In response to a question of re-offending in a domestic violence context, Dr Hatzipetrou said this Applicant did not demonstrate the necessary cluster of personality traits rendering him vulnerable to another episode of offending;
·     He added that people with a propensity to re-offend present with different characteristics to that of the Applicant. Re-offenders are more likely to seek to explain away their actions whereas this Applicant has accepted responsibility for his, and accepted that his behaviour had harmed his former wife.
I asked Dr Hatzipetrou whether the Applicant’s risk of re-offending could arise in circumstances other than an interpersonal relationship, such as, for example, in a situation where he were to commence his own retail food business which (theoretically) runs into difficulty as frequently happens in small business. I asked him whether, being confronted with a difficulty of that type, this Applicant would have recourse to behaviour actionable by criminal penalty. Dr Hatzipetrou thought this unlikely and considered that:
·     A reaction like that would usually be marked by a childhood history involving impulsivity and anti-social behaviour;
·     This Applicant does not have a personal history that suggests anything like this, in fact, the opposite seems to be the case in that this Applicant has taken positive steps to become educated and to self-fund that education;
·     Dr Hatzipetrou could not find any evidence of psychopathic personality traits nor any markedly impulsive behaviour that would lead him to a conclusion of a likelihood of similar offending in a context other than a domestic/romantic relationship;
·     Dr Hatzipetrou also thought that protective indicators were apparent in this Applicant’s history that mitigated against the risk of any offending in a non-domestic/romantic relationship scenario. These factors included: a stable personal history, a capacity to build and maintain friendships, a desire to become educated, qualified and employed; the expression of aspirations; the supportive influence of his sister’s family; and his apparent control of other aspects of his life;
·     Therefore, the conduct constituting the primary offending in the Applicant’s criminal history can be isolated to the circumstances relating to the lady he married. Dr Hatzipetrou added if there were other episodes or reports of aggressive and offensive behaviour outside that domestic/romantic context, “we would be having a different conversation”.
The parties chose to recall Dr Hatzipetrou following ventilation of any other identifiable behaviour by the Applicant as referred to in the immediately preceding bullet point that could possibly necessitate a “different conversation”. Specifically, the discussion involved an incident in Cairns on the night of 23 - 24 November 2015 resulting in an initial complaint to the police by an alleged victim.[9] The circumstances of that incident certainly warranted further evidence from Dr Hatizpetrou because, to my mind, if any of it could be substantiated or otherwise become of evidentiary value for this hearing, then it would have formed the basis of “having a different conversation” with Dr Hatzipetrou.
[9] See Exhibit 10, Qld Police Records, pp 58 – 60.
Dr Hatzipetrou, quite correctly in my respectful opinion, told the hearing that: (1) he was aware of the detail of this initial complaint; (2) he also knew of its withdrawal by the complainant; and (3) he knew of the statement by the police to the Applicant that they would, for all intents and purposes, not be taking the matter any further. In these circumstances, Dr Hatizpetrou did not have regard to this withdrawn complaint in formulating his report. He, again quite rightly in my respectful view, accorded procedural fairness to the Applicant and made a presumption that the alleged circumstances should be treated as if the matter never occurred. I agree with that approach and I will follow it for the purposes of this decision. Accordingly, I draw no adverse inference against the Applicant from the circumstances of this now withdrawn and non-actioned complaint.

I note (and I think this is significant) that no prior decision making stage of this matter has been informed by a 21 page expert report, nor by almost two hours of oral evidence as was provided by the clinical psychologist Dr Hatzipetrou. The hearing over which I presided was therefore best positioned to ascertain this Applicant’s risk of causing future harm. In the absence of contrary expert evidence and having regard to both the demeanour of this Applicant and the nature of the history of his offending, primarily derived as it is from his former relationship, I agree with the findings of Dr Hatzipetrou and consider the Applicant to be of low risk of causing future harm in the community. Put another way (and to quote Dr Hatzipetrou) I consider this Applicant’s risk profile to be no greater than any other member of the community.
The Likelihood of Reoffending, or Continuing to Engage in Other Serious Conduct
I accept the Applicant’s contention that he is not likely to continue to offend or to otherwise engage in serious conduct because, post the turbulent marriage, he has changed. I also accept that he has re-defined himself with his life and work in Cairns and that the likelihood of his re-offending is therefore low.
To my mind, this is an Applicant that has experienced a bad and isolated period of months in terms of offending that is obviously derived from a personal relationship into which he had invested significant emotional and material resources. Dr Hatzipetrou’s evidence eliminated the possibility of future occurrences should the Applicant re-partner into a new domestic relationship.
The balance of his offending – specifically his traffic history – is largely unremarkable and capable of explanation in terms of isolated incidents that do not seem to have a repetitive flavour. I do not take from the totality of his history any ascertainable inclination to disrespect the laws of this country on either an impulsive or habitual basis. To repeat and be clear: his post-breakup conduct towards his former spouse is a matter of significance and likewise lamentable. However, I do not think it is behaviour that renders him liable to lapsing into reoffending or otherwise engaging in a fresh round of serious and punishable conduct.
Primary Consideration B: The Best Interests of Minor Children in Australia Potentially Affected by the Decision
The Applicant does not have children by his own issue. He has a nephew (the son of his sister) with whom he does have some level of contact. It should be borne in mind that this Applicant lives in Cairns and the nephew resides with his family in Brisbane. There was no evidence indicating the provision of care or guidance by this Applicant for his nephew. I therefore accept the Minister’s contention that the Applicant does not have any material impact on his nephew’s interests.
The contention of the Minister is therefore correct: this factor should not materially weigh in favour of the Applicant and that little weight should be attached to it.
As against that contention, I note the Applicant’s sister, her husband and their child comprise the only familial circle the Applicant has in Australia. This is supported by the sworn evidence of the Applicant’s sister.[10] I further note his father passed away in 2006 and his mother in 2016.[11] I also accept the Applicant’s and his sister’s evidence to the effect that there is effectively nothing for him back in India, either at a work level, or a re-education.
[10] See Exhibit 8, Statutory Declaration of Applicant’s sister, dated 6/12/2016.
[11] See Exhibits 4, Death certificates.
Primary Consideration C: The Expectations of the Australian Community
The Tribunal is acutely aware of the topicality and awareness of Domestic Violence in our community. It is a serious matter that should be addressed in a serious way. The government has made its position clear.[12]
[12] See media release at:
The Minister holds “reasonable concerns” that a person who has breached a Temporary Protection Order and who has also participated in fraudulent activity should not hold a visa. That contention is fairly made but, in my respectful view, must be considered in light of the totality of both this Applicant’s offending and the way in which he has made his way in the world.
Firstly, the Applicant’s criminal history is one that derives from a relationship that obviously turned sour for him. He made a quantifiable investment into that relationship in the best of good faith with a more than reasonable expectation of entering into a domestic relationship with his proposed wife. There is nothing in the evidence to suggest any divergence by her from that intention prior to the marriage because nothing came up during the courtship or “getting to know you” phase indicating her rejection of him or her resistance towards the notion of a union with him.
There seems little doubt the motivation behind the resistance to the marriage came from her family. This resistance continued even after the marriage itself as is evidenced by her almost instantaneous dispatch to Pakistan very shortly after the marriage ceremony. It is also apparent from police documents that at least one of the reported instances of a breach was made jointly by the wife and her father at the local police station.
The actual circumstances constituting the breaching behaviour also warrant discussion. There were four breach episodes. All of them constitute attempts by the Applicant to communicate with his wife by electronic means to either win back her affections or to otherwise seek an explanation as to why the relationship had gone awry. The final breach involved not just an electronic attempt to contact her but the apparent use of some inappropriate and threatening language. The police interviews with the Applicant indicate his wife was also contacting him in the circumstances leading up to at least two of the breaches. As best as I can glean from the police evidence no act of physical violence ensued nor were the police called in response to any of the breaches. Further, the Applicant did not contest any of the breach episodes and fully complied with police interviews and enquiries. He entered his own plea to each breach at the earliest opportunity.
Secondly, having regard to the element of community expectations of conduct in the grant of any visa, this Applicant’s personal circumstances, both before and after the marriage, warrant some discussion.
At the hearing, his former vocational trainer at Shafston International College spoke glowingly of the Applicant’s pleasant demeanour and determination to make the most of his circumstances.[13] This witness described the Applicant as “a pleasure to teach” and otherwise confirmed to the hearing that he had continued a social media dialogue with the Applicant post completion of the course. The course involved vocational training as a chef. This witness also told the hearing that the type of behaviour leading to the placement of the subject visa in jeopardy was something totally out of character for the Applicant. This witness told the hearing that the Applicant most probably placed great faith and hope in the marriage representing his next big step in life and that he must have become greatly disillusioned when he was denied the opportunity to live with the lady he loved. This witness also told the hearing of his utmost confidence in the Applicant’s capacity to both make and pay his own way through life and that he was impressed that all of the cost associated with this vocational training course had been paid by the Applicant himself, without external assistance.
[13] See G-documents, pg 165-166.
This witness also told the hearing of the Applicant’s love for this country and his firm determination to assimilate as an active participant in his local community. He spoke of the Applicant’s willingness to do extra work over and above the minimum requirements of the vocational training course. He also told the hearing he was aware of the Applicant’s achievements as a chef in Cairns and of how important he was to the business that now employed him as a chef.
I have also had regard to the quite favourable written reference provided by the proprietor of the restaurant where the Applicant has been continuously employed since September 2014, upon his relocation from Brisbane to Cairns.[14] I note and accept that referee’s description of the Applicant as follows:
“At all times I have found Mr. Vishal Bhardwaj to be dependable, hard working, conscientious, honest, peace loving, and courteous. He is a good person with the proper attitude towards all his colleagues and supervisors.
We are counting on him to come back to his post as soon as possible since his presence and contribution towards our establishment is crucial to the ongoing profitability of our business.
Skilled, dedicated and hard working employees like Vishal are extremely difficult to come by and are not easily replaceable, especially in a place as remote as Kuranda in North Queensland.”
[14] Exhibit 7, Reference letter of support dated 22 November 2016.
These are impressive comments and I feel compelled to have regard to them when forming a view as to expectations the Australian community would have with regard to this Applicant’s right to a visa. I note there were an additional ten character references supporting his visa application.[15]
[15] See Exhibit 3, G Documents, G27-G37 (pp 167-181).
The Minister also contends for a finding pursuant to paragraph 11.3(1) of the Direction that “…where a non-citizen has breached this trust (to obey Australian law) it may be appropriate to refuse the visa application of such a person.” While I have regard to this contention, I do not consider it can be directly applied to the circumstances of this Applicant. I have sought to explain and analyse his history with reference to police matters and do not consider that his pattern of offending constitutes any demonstrable or convincing breach of trust in his capacity to properly observe Australian laws.
He arrived in Australia in December 2008. This hearing took place in January 2017. This is a period spanning approximately 97 months, including the month of this hearing. Viewed in totality, his period of offending comprises (at best) seven months:
· The month of June 2009 during which he committed the dangerous operation of a motor vehicle offence; and
· The period March 2014 – September 2014, representing offences predominantly arising from his former marriage.
Viewed another way, the total period of his offending has comprised barely 7% of the total time he has spent in Australia. Both the relative paucity and nature of the offending is not such as to indicate or prove any breach of trust on his part to not comply with the laws of this country. This finding is, I think, supported by the favourable comments of his vocational training instructor and his current employer, as outlined above.
Having regard to all of these circumstances, I find this consideration does not weigh heavily in favour of the refusal of the Applicant’s visa.
Other considerations
I now turn to the other considerations listed in paragraph 12 of the Direction.[16] I refer to each subparagraph and comment as follows:
(a)International non-refoulement obligations – unnecessary to consider for this decision.
(b)Impact on family members – as noted above, the Applicant has resided in Australia for over eight years. During this time his only remaining direct family member, being his elder sister, has relocated to Australia and now lives in Brisbane with her family. Both of his parents are deceased. Although there is evidence of some remaining extended family back in India (maternal uncles and grandfather), no evidence of any close or connected relationship between the Applicant and those extended family members was put before me at the hearing. The evidence on this issue at the hearing clearly indicated that his (by far) closest familial relatives comprise his sister, her husband, and their son.
(c)Impact on victims – I agree with the Respondent’s contention of there being no evidence to suggest that any victim(s) of the Applicant’s offending would be adversely affected by a decision to grant this visa.
(d)Impact on Australian business interests – I disagree with the Respondent’s contention to the effect that no Australian business interests would be affected by a decision to refuse the visa. I again refer to the informative and supportive reference from the Applicant’s employer which confirms the Applicant’s fundamental importance to both the daily operation and viability of that business.
[16] Direction No. 65, paragraph 12(1).
CONCLUSION
I have made a finding that on the basis of his offending, the Applicant does not pass the character test as defined in s 501(6) of the Act. I now turn to a consideration of whether the correct/preferable decision is to exercise the discretion afforded s 501(1) of the Act to refuse his visa. I have had regard to the considerations referred to in the Direction.
With reference to Primary Consideration A, I agree with the findings of Dr Hatzipetrou and consider the Applicant to be of low risk of causing future harm in the community. Put another way, I consider this Applicant’s risk profile to be no greater than any other member of the community.
With reference to Primary Consideration B, I have afforded little weight to this consideration as no minor children are potentially affected by this decision. I do note that the Applicant’s only remaining family is that of his sister and her family who resides in Brisbane.
With reference to Primary Consideration C, I consider that the totality of this Applicant’s offending and the context within which it occurred, (1) does not place him beneath the expectations of the Australian community as someone who should hold a visa, and (2) that his offending does not otherwise constitute any demonstrated breach of trust or lack of capacity to properly observe and obey the laws in this country.
A holistic consideration of the four other considerations, to my mind, weighs in favour of allowing the Applicant to remain in Australia.
I therefore find that primary considerations A, B and C do not sufficiently weigh in favour of a decision to exercise the discretion to refuse this Applicant’s Regional Employer Nomination (Permanent) (Class RN) visa. I also find that other considerations (b) and (d) convincingly weigh in favour of this Applicant receiving his abovementioned visa.
DECISION
Having regard to the lengthy and detailed oral and written evidence of the clinical psychologist, Dr Hatzipetrou, and on the basis of the additional reasons outlined above, I am satisified that, on balance, the discretion to refuse the visa on character grounds should not be exercised.
In these circumstances, I set aside the decision under review and substitute it such that the discretion in s 501(1) of the Act to refuse the Applicant’s Regional Employer Nomination (Permanent) (Class RN) visa on character grounds should not be exercised.

I certify that the preceding 91 (ninety-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis

.........................[sgd].................................
Associate
Dated: 31 January 2017

Date of hearing: 19 January 2017

Counsel for the Applicant: Frank Lanza

Solicitors for the Applicant: Lanza Legal

Advocate for the Respondent: Matthew Hawker

Solicitors for the Respondent: Sparke Helmore Lawyers

Date of hearing:	19 January 2017
Counsel for the Applicant:	Frank Lanza
Solicitors for the Applicant:	Lanza Legal
Advocate for the Respondent:	Matthew Hawker
Solicitors for the Respondent:	Sparke Helmore Lawyers