Brar and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2024] AATA 1040

Brar and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1040 (12 March 2024)

Division:GENERAL DIVISION

File Number:          2023/9617

Re:Kamaljeet Singh Brar

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member McLean Williams 

Date of decision:                    12 March 2024

Date of written reasons:         13 May 2024

Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside decision dated 18 December 2023 made by the Respondent’s delegate and substitutes it with a decision to revoke the mandatory cancellation of the Applicant’s visa.

…………[SGD]……………
Member McLean Williams

Catchwords

MIGRATION – Non-revocation of mandatory cancellation of visa – where the Applicant fails the character test- whether there is another reason to revoke the mandatory cancellation decision- application of Ministerial Direction No. 99 – Tribunal finding there is another reason to revoke the mandatory cancellation decision – decision under review set aside and substituted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)

Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Khalil v Minister for Home Affairs [2019] FCAFC 151
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

Secondary Materials

Ministerial Direction No. 99 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Member McLean Williams
13 May 2024

1. On 12 March 2024 the Tribunal determined pursuant to the review power under section 501CA(4) of the Migration Act 1958 (Cth) (‘the Act’) to set aside the decision of the Respondent’s Delegate not to revoke the mandatory cancellation of the Applicant’s Class SN Subclass 190 Skilled Nominated Permanent Visa (‘the visa’).

2. On 26 March 2024 a transcript of the hearing of the evidence in the Application for Review before the Tribunal on 27 and 28 February 2024 became available. 

3. In accordance with the Full Federal Court decision in Khalil v Minister for Home Affairs [2019] FCAFC 151 (‘Khalil’), the Tribunal now publishes the written reasons for the ‘short form’ decision made on 12 March 2024. In Khalil, the Full Federal Court had said:

   ‘The AAT Act thus draws a clear distinction between the decision of the Tribunal under s 43 which is, relevantly, what causes the 84-day period to stop running, and the reasons for decision. In BTR plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246 the Tribunal had handed down a decision on a review of a decision of the Australian Securities Commission that was before it, confirming an exemption that the Commission had granted on certain conditions, but substituting different conditions. At the time of announcing the decision the Tribunal did not give any reasons. It delivered written reasons some 14 days later. Beaumont J held (at 271 273, Lockhart and Hill JJ agreeing at 253) that the Tribunal's omission to provide reasons at the time of announcing its decision was not an error, as on the proper construction of s 43(2) of the AAT Act, the Tribunal was only required to give its reasons, oral or in writing, within a reasonable time of the decision.

   …

   What the Tribunal had to do here within the 84 days was to deliver a decision, not necessarily express reasons…’

   [Emphasis by the Tribunal]

   Background

4. Mr Kamaljeet Singh Brar (‘the Applicant’) is a 39-year old, married male citizen of India. The Applicant first arrived in Australia on 10 June 2014 as the holder of a student (secondary dependent) visa, accompanying his wife, who had come to Australia in order to study, and subsequently to work, as a registered nurse.[1] 

   [1] G Documents, p. 177.

5. Six years later, on 24 June 2020, the Applicant was granted the Class SN Subclass 190 Skilled Nominated Permanent Visa that is now the subject of these proceedings.

6. On 10 March 2022 the Applicant was convicted in the Melbourne Magistrates Court of Person - sex assault by touch - child under 16,[2] and was sentenced to a term of imprisonment for two months, together with a requirement that he undergo a community corrections order for 18 months, with the Applicant’s name also being placed on a register of sex offenders for a period of eight years. 

   [2] G documents, p. 42.

7. The offence in question had been committed by the Applicant on 2 February 2020, on a crowded Melbourne tram, when the Applicant had opportunistically caressed the hips and buttocks of a 14-year old girl, a complete stranger to Applicant, who had the misfortune to be a standing passenger, next to the Applicant. 

8. On 10 March 2022 the Applicant was also convicted of ‘fail to answer bail/contravene a conduct condition of bail’, referable to the Applicant having departed the jurisdiction of Victoria, contrary to his bail conditions in the period between his first being charged with the aforementioned sex offence, and his ultimately appearing before the court for sentencing on that charge.  The Applicant had departed Victoria in order to visit his wife in the Northern Territory, and also so as to visit his elderly mother in India, in circumstances in which he claimed to have been of the mistaken understanding that he was not required to physically attend Court on the sentencing date.[3] 

   [3] G documents, pp. 45-46 [26] – [16].

9. Later, on 18 July 2022, the Applicant successfully appealed to the County Court of Victoria in relation to the severity of the sentence imposed for the sex offence, and in relation to the bail offence.  On that date the Applicant was re-sentenced by the Appeal Judge to a reduced term of imprisonment, of 32 days in relation to the sex offence, as well as his being discharged on the bail offence.[4] 

   [4] G documents, p. 33.

10. The Tribunal notes that pursuant to s.49D of the Victorian Crimes Act1958 the maximum penalty for this sex offence is 10 years imprisonment, with the ‘standard’ sentence being four years imprisonment. The County Court Judge hearing the Applicant’s appeal described the Applicant’s offending as being “at the very low end” of seriousness for offending of this category.[5]

    [5] G documents p. 60.

11. On 21 March 2022 - and at a point prior to the appeal outcome, when the Applicant was still serving a full-time sentence of imprisonment - his visa was mandatorily cancelled, pursuant to s.501(3A) of the Act (‘the cancellation decision’), because the Applicant had been convicted of an offence as specified under section 501(6)(e);[6] and because he was then serving a term of actual imprisonment for an offence against a law of a State within the Commonwealth. 

    [6] A sexual offence involving a child.

12. The Applicant was invited to make representations seeking revocation of the cancellation decision.  The Applicant did so - on 15 April 2022 - via submissions made at his behest by his solicitors.

13. On 18 December 2023 a Delegate of the Respondent Minister decided not to revoke the mandatory cancellation of the visa, pursuant to s.501CA(4) of the Act (‘the reviewable decision’).

14. On 20 December 2023 the Applicant sought to have the reviewable decision further reviewed, before this Tribunal.

15. The hearing of the Application for Review took place before the Tribunal over two days, on 27 and 28 February 2024. During the hearing the Tribunal received oral evidence from the following witnesses:

    ·the Applicant;

    ·the Applicant’s brother, Mr Baljeet Brar;

    ·the Applicant’s Wife, Mrs Amandeep Brar;

    ·the Applicant’s sister-in-law, Mrs Mandeep Kaur Deol; and

    ·a forensic psychologist, Mr Jeffrey Cummins.

16. In addition to oral evidence from each of the above-named persons, written submissions and documentary evidence were submitted by each of the Applicant and the Respondent Minister, and these materials were also considered by the Tribunal.

    Offending history

17. The Applicant has no criminal history whatsoever prior to his arrival in Australia, and only quite limited criminal/traffic history whilst in this country. 

18. The Applicant’s offending prior to the sex offence now giving rise to circumstances for visa cancellation and the bail offence for which the Applicant was also dealt with on

    
    

    10 March 2022 is comprised by only one (1) conviction for a mid-range drink driving offence in 2017, in Darwin (for which the Applicant was fined $462 and disqualified from driving for six months); and one (1) conviction for unlicensed driving, also in Darwin, in 2015, for which the Applicant was fined $100.[7]

    [7] G documents p. 31.

19. Although a married man, with a wife and 12-year old son who are currently living in Darwin, at the time of the index offence the Applicant had been separated from his family because of economic necessity, and was then living with his older brother in Melbourne. 

20. The Applicant’s wife is a registered nurse, working in the public health system in the Northern Territory. Although the Applicant had originally also lived in the Northern Territory together with his wife, lack of ongoing employment had necessitated that the Applicant move to Melbourne in search of employment, thus leaving his wife in her job in the Northern Territory. Despite efforts by the Applicant’s wife to also find suitable alternate employment in Victoria, those efforts have not yet come to fruition, such that the Applicant’s wife has not been in any position to re-locate to Victoria to be living with the Applicant, despite her wishing to do that. When in Melbourne, the Applicant had resided with his elder brother, and his elder brother’s wife (the Applicant’s sister-in-law), and their two children (the Applicant’s nephews), and the Applicant had obtained employment working as a chef, in a Pizza Restaurant.

21. According to the evidence given by the Applicant when before the Tribunal, he worked very long hours, and had only one day off, per week. The sex offence in question was committed on a day when the Applicant had been off work, and he had used this opportunity to travel into the city, to attend an advertised motor sports event. The Applicant told the Tribunal that he had intended to film some of the race and to post the footage of same on Facebook, which he described to the Tribunal as the activity comprising his primary recreational outlet.[8]  The Applicant also recalled having consumed some alcohol that morning,[9] before later boarding a route 96 tram, enroute to the motorsports event. The offence in question then took place whilst the Applicant was aboard that tram. 

    [8] Transcript, p. 6 lines 27 – 39.

    [9] Transcript, p. 18.

22. According to a summary of facts presented to the Melbourne Magistrates Court on

    
    

    10 March 2022, the index offence transpired in the following circumstances:

    ‘At approximately 10:30 on Sunday 2 February 2020, the victim, witnesses and the Applicant boarded the route 96 tram in Melbourne. The tram was extremely busy, and the passengers were required to stand very close. The victim and [Witness O] stood in the doorway and the [Applicant] stood behind the victim. The Applicant then rested his hand on the right side of the victims’ buttocks, and at different times, moved it up and down over the curve of her body over a period of approximately three minutes. In her statement, the victim noted that ‘it was his hand on my bum for – I think it was seven minutes or so, curving along my hip and then go up and down and then curve’ and that ‘he wasn’t moving his hand at all from my bum, or he was just resting it. And I remember all I was doing was holding onto [redacted] and trying hard not to cry, because I was scared to tell him to stop’.[10]

    [10] G Documents, 46.

23. The Applicant was not questioned by the police in relation to the victim’s complaint until

    
    

    8 April 2020. Initially, the Applicant denied committing the offence, stating that he “did not remember” either the victim or witnesses, and, when queried about the victim’s version of alleged events, the Applicant stated that it “never happened and if, accidentally I touch the girls, I don’t know, but I’m not like this type of guy. I have a family, my wife. I don’t know why they complained. Sorry”.[11]

    [11] G documents, p. 47.

24. Ultimately, the Applicant did plead guilty to the charge, thus accepting his role in the commission of the offence.[12] 

    [12] See also Transcript, p.14 lines 19-20.

25. In relation to the spectre of alcohol consumption prior to committing this offence, the Applicant expressed the following:

    ‘This incident occurred on a Sunday which is my day off. As it was my day off, I would usually have a few drinks in the morning and go into the city. On this day, I had around two or three beers in a bar in the city before going to St Kilda. Looking back on my drinking habits, I wasn’t thinking when I was drinking. Despite having two alcohol-related convictions, it took this conviction to make me stop drinking. I didn’t know what I was doing when I was drinking alcohol. Since April 2020 when I was charged, I have not drunk alcohol. When I went to India to help my mother I did not drink. Since I have been in immigration detention, I have not touched any alcohol or drugs despite them being in the centre. I will not drink when I am released to the community because I don’t think when I am drinking.  Exercise and family are much more important to me now than alcohol.’[13]

    [13] G Documents, p. 124, paragraph [16].

    Expert Evidence

26. The Tribunal received oral evidence and a psychology report dated 27 February 2024 from a Mr Jeffrey Cummins, Consultant Clinical Forensic Psychologist based in Lonsdale Street, Melbourne. Mr Cummins had interviewed the Applicant on 6 February 2024 by means of video (given that the Applicant was then being held in immigration detention at the Yongah Hill Immigration Detention Centre, in Perth).

27. Mr Cummins informed the Tribunal that he considered that the Applicant was likely to have been under the influence of alcohol at the time of his offending, and that social isolation - arising in consequence of the Applicant being forced by circumstances to live separately and apart from his wife – had played a role in the Applicant’s offending.[14] Mr Cummins’ overall clinical impression was that the Applicant was ‘depressed and anxious’,[15] and had become ‘disinhibited’[16] by alcohol at the time of the offence. 

    [14] Transcript, p. 38, line 1, p. 39, lines 28-29.

    [15] Transcript p. 40, line 30, see also page 8 of his report, at paragraph 51.

    [16] Transcript, p. 41, line 7.

28. In his report, Mr Cummins further observes[17] that the Applicant has since put himself through a period of introspection regarding the circumstances giving rise to this offence, and had come to the view that alcohol had been a factor, such that the Applicant had resolved that he would not drink again in the future. Mr Cummins considers that the Applicant is a low risk of re-offending (the lowest level of risk that can be assessed by a psychologist or psychiatrist in Australia), and that ‘In my opinion he has comprehensively “learnt his lesson” regarding his offending behaviour against the underage female because for that offending …he served 32 days in custody and has now been held in immigration detention for a protracted time”.[18]

    [17] Report, p. 5, paragraphs [35] – [39].

    [18] Report, p.7 paragraph [49].

29. The Tribunal accepts the opinions expressed by Mr Cummins regarding the future risks of the Applicant re-offending, and considers - on the balance of probabilities - that Mr Cummins’ hypothesis regarding the factors that lead to the commission of the index offence affords the most probable explanation for the Applicant’s conduct.

    ISSUES FOR DETERMINATION BY THE TRIBUNAL

30. On the hearing and determination of this Application for Review, the issues for the Tribunal are:

    (a)whether the Applicant meets the requirements of the character test as defined in section 501 of the Act (subparagraph 501CA(4)(b)(i)); and if not

    (b)whether there is ‘another reason’ why the cancellation decision should be revoked (subparagraph 501CA(4)(b)(ii)).

    LEGISLATIVE FRAMEWORK

    Does the Applicant pass the character test?

31. The Applicant was convicted on his own confession of person - sex assault by touch, child u/16. In light of same, and because of s.501(6)(e) of the Act the Tribunal cannot find that the Applicant passes the character test. The Applicant acknowledges[19] that he cannot pass the character test.

    [19] Applicant’s Statement of Facts Issues and Contentions (‘SFIC’), paragraph [34].

    Is there ‘another reason’ why the cancellation decision should be revoked?

32. In light of the Applicant failing the character test, the task for the Tribunal reduces to an exercise of the discretion under subparagraph 501CA(4)(b)(ii), to consider whether or not there is ‘another reason’ why the visa cancellation decision should be revoked.

33. In considering whether to exercise the discretion the Tribunal must comply with any Directions made under the Act by virtue of section 499(2A). In this case, Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Ministerial Direction’) is applicable.

34. The Ministerial Direction outlines a framework for decision-makers with respect to exercising the discretion outlined in section 501CA of the Act. Relevantly, paragraph 6 of the Ministerial Directions provides:

    ‘6. Exercising discretion

    Informed by the principles in paragraph 5.2 above, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.’

35. The principles contained within 5.2 of the Ministerial Direction are as follows:

    1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    2Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    4Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

    5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

    6Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

1. Paragraph 8 of the Ministerial Direction sets out the five Primary Considerations that the Tribunal must take into account, these being:

   ·protection of the Australian community from criminal or other serious conduct (‘Primary Consideration 1’);

   ·whether the conduct engaged in constituted family violence (‘Primary Consideration 2’);

   ·the strength, nature and duration of ties to Australia (‘Primary Consideration 3’);

   ·the best interests of minor children in Australia (‘Primary Consideration 4’); and

   ·expectations of the Australian community (‘Primary Consideration 5’).

2. The Ministerial Direction then further specifies a number of ‘Other Considerations’ which must also be taken into consideration:

   ·legal consequences of the decision;

   ·extent of impediments if removed;

   ·impact on victims; and

   ·impact on Australian business interests.

3. Notably, these considerations are to be regarded as ‘other’ as opposed to ‘secondary’ considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23]:

   ‘...Direction 65 [now Direction 99] makes clear that an evaluation is required in each case as to the weight to be given to the ‘other considerations’ (including non-refoulement obligations). It requires both primary and other considerations to be given ‘appropriate weight’. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains ‘generally’ they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are ‘normally’ given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both ‘primary’ and ‘other considerations’. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.’

   PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY

4. Paragraph 8.1 of the Ministerial Direction requires that the Tribunal keep in mind that the Australian Government is committed to protecting the Australian community from harm in consequence of criminal activity or other serious conduct by non-citizens. Decision-makers are required to have particular regard for the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens, in the expectation that they are, (and have been) law-abiding; will respect important institutions; and will not cause or threaten harm to the Australian community. This requires consideration of ‘the nature and seriousness of the non-citizen’s conduct to date’, as well as ‘the risk to the Australian community’ in the event that the non-citizen were to commit further offences, or to engage in other serious forms of conduct, if allowed to remain in Australia.

   The nature and seriousness of the Applicant’s conduct to date

5. The Respondent Minister submits[20] that sexual assault against a child is ‘objectively very serious’, and points to the victim impact statements of both the complainant, and of her mother - as were presented to the Court in Victoria upon the Applicant’s sentencing - in demonstration of the specific harm caused by the Applicant.

   [20] Respondent’s SFIC paragraph [21].

6. On behalf the Applicant it is submitted[21] that although the Applicant’s index offence is objectively serious, it nonetheless remains within the lower end of the range of seriousness for such an offence.

   [21] Applicant’s SFIC paragraphs [40] & [45].

7. The Tribunal considers that by reason of the nature of the index offending it can only be considered as ‘very serious’. It is accepted however to be at the very low end of such seriousness. 

   Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

8. When assessing the risk of harm to the Australian community that may now be posed by the Applicant in the event that the Applicant were to be allowed to remain in Australia, a decision-maker must have regard to the cumulative criteria specified under paragraph 8.1.2(2) of the Ministerial Direction, which relevantly include:

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

   (b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

   (i)     information and evidence on the risk of the non-citizen reoffending; and

   (ii)    evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

9. On behalf the Applicant it is submitted that:

   ·the Applicant has expressed[22] remorse for his actions;

   ·alcohol appears to have been a contributing factor, which the Applicant has himself identified, and in consequence of that has now ceased drinking;[23]

   ·imprisonment, followed immediately by immigration detention with the real prospect of enforced deportation, has had a very salutary, chastening effect upon the Applicant;[24] and

   ·the available expert evidence now places the Applicant as being at only a ‘low’ risk of future re-offending.[25]

   [22] Applicant’s SFIC, paragraph [41].

   [23] Applicant’s SFIC, paragraph [42].

   [24] Applicant’s SFIC paragraph [43].

   [25] Applicant’s SFIC paragraph [44].

10. The Respondent Minister submits[26] that ‘very serious’ harm would follow if the Applicant

    
    

    re-offended, that any risk of re-offending is unacceptable, and that the Applicant presents as a real risk of re-offending because the Tribunal ‘should not be confident that the Applicant is genuinely remorseful’, or that the Applicant has true ‘insight into his offending’, thus undermining ‘any suggestion that his plea of guilty was indicative of remorse’. Furthermore, the Respondent Minister submits[27] that alcohol was not a relevant factor in the Applicant’s offending, such that it is ‘presently unclear’ why the Applicant offended, and therefore it also remains uncertain that the Applicant’s more recent vow of sobriety might serve to guard against any risk of recidivism, in the manner now claimed. Overall, the Respondent Minister submits that “heavy weight” should be attached by the Tribunal to Primary Consideration 1 against revocation of the mandatory visa cancellation decision.

    [26] Respondent’s SFIC paragraph [26].

    [27] Respondent’s SFIC paragraph [26.3] in conjunction with Transcript, p.21 line 23-30.

11. The Tribunal accepts that the Applicant is genuinely remorseful and has previously indicated that it has accepted the risk assessment given by Mr Cummins in his capacity as an expert forensic psychologist when giving his evidence before the Tribunal. That evidence is to the effect that the Applicant represents the lowest possible risk of offending again in the future.  The Tribunal is further satisfied that alcohol had a disinhibiting influence upon the Applicant, and that the Applicant would not have been likely to commit the offence on 2 February 2020, had he not been under the influence of alcohol at the time. In these circumstances the fact of the Applicant having since resolved not to drink again in the future becomes an influential consideration, further galvanising the Tribunal’s assessment that any future risk as now presented by the Applicant to members of the Australian community is a ‘low’ risk. The extent of that risk is likely to diminish still further, by merit of the Applicant’s awareness of the ‘Sword of Damocles’ risk of his deportation from Australia, in the event that the Applicant were to ever offend again in a similar manner in the future. In these circumstances the future risk presented by the Applicant becomes a matter that is one that is able to be accepted by the Australian community as a risk that is now sufficiently low as to be tolerable.

12. Overall, the Tribunal considers that although the index offending remains objectively ‘very serious’, the Tribunal’s accompanying conclusions regarding the aspect of future risk then serves to attenuate the weight that would otherwise attach in favour of non-revocation of the visa cancellation decision. Ultimately, Primary Consideration 1 still weighs against revocation of the visa cancellation decision, yet now does so only ‘moderately’.

    PRIMARY CONSIDERATION 2 – FAMILY VIOLENCE

13. It has been agreed[28] that there is no suggestion of any family violence in any aspect of the Applicant’s conduct, such that Primary Consideration 2 now weighs neutrally.

    [28] Applicant’s SFIC paragraph [46]; Respondent’s SFIC paragraph [29].

    PRIMARY CONSIDERATION 3 – STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA

14. Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely (paragraph 8.3(2) of the Ministerial Direction).

15. Decision-makers must also consider the strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely (paragraph 8.3(2) of the Ministerial Direction). Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:

    (a)the length of time the non-citizen has resided in the Australian community, noting that:

    (i)     considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when the offending commenced and the level of that offending; and

    (ii)    more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and

    (iii)   less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia (paragraph 8.3(4) of the Ministerial Direction).

16. The Respondent Minister observes that the Applicant has been in Australia for almost

    
    

    10 years, and that most of the Applicant’s immediate and extended family now live in Australia and are Australian citizens, yet observes that the Applicant did not arrive until aged 29, such that it could not be said that the Applicant was ordinarily resident in Australia during any of his ‘formative years’.[29] The Respondent Minister submits[30] that only “some” weight should attach to Primary Consideration 3 in favour of revocation of the mandatory visa cancellation decision.

    [29] Respondent’s SFIC paragraph [31].

    [30] Respondent’s SFIC paragraph [34].

17. The Applicant submits[31] that he has lived in Australia permanently since 2014, and that his wife and only child are now each Australian citizen. His only brother, and sister-in-law and nephews are also all Australian citizens living in Australia. The Applicant’s father is deceased and his elderly and frail mother, although an Indian citizen, has also moved to Australia to live with the Applicant’s brother and sister-in-law and nephews. The Applicant has no other family in India such that the entirety of his social network is now in Australia.  In the circumstances, it is submitted that this primary consideration should now be assessed as weighing ‘very heavily’ in favour of revocation of the mandatory visa cancellation decision.

    [31] Applicant’s SFIC paragraphs [47] – [49]

18. The Tribunal considers that the strength and nature of the Applicant’s ties to Australia are now far greater than are any residual ties the Applicant may have to India as his country of birth, notwithstanding the Applicant having lived in India for approximately 29 years and in Australia for only approximately one-third that time (i.e.: 10 years). In a very real and practical sense, the Applicant’s ties to India are only historical. 

19. The Tribunal considers that a very heavy measure of weight must now attach to this Primary Consideration in support of revocation of the visa cancellation decision.

    PRIMARY CONSIDERATION 4 – BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA.

20. In accordance with paragraph 8.4 of the Ministerial Direction, decision-makers must make a determination about whether non-revocation is, or is not, in the best interests of minor child affected by the decision. Paragraph 8.4 (4) of the Ministerial Direction provides that when having regard to this consideration, a number of factors must be considered:

    (a)the nature and duration of the relationship;

    (b)the extent to which the Applicant is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18;

    (c)the impact of the Applicant’s prior conduct, and whether it has or will have a negative impact on the child;

    (d)the likely effect of separation and the ability to maintain contact; and

    (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);

    (g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; and

    (h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

21. The Respondent Minister accepts that the Applicant has one son, Child A, who is an Australian citizen, now aged about 12, residing with his mother in Darwin, and that the Applicant is in daily contact with Child A by telephone; as well as his having two nephews in Melbourne, with whom the Applicant is also in regular contact with. For reasons elaborated,[32] the Respondent Minister submits that this consideration should now weigh in the Applicant’s favour, yet without submitting how much weight this Primary Consideration should now attract.

    [32] Respondent’s SFIC paragraphs [37] – [41].

22. In a statutory declaration dated 26 September 2023 the Applicant’s wife has described the adverse impacts on Child A, as caused by the Applicant’s immigration detention. In addition to Child A, the Applicant has two nephews. The available evidence demonstrates that the Applicant has a strongly positive, avuncular rapport with his nephews. 

23. On behalf the Applicant it is submitted[33] that this consideration should now be assessed as weighing ‘very heavily’ in favour of revocation of the visa cancellation decision.

    [33] Applicant’s SFIC paragraph [54].

24. The Tribunal considers that the best interests of both Child A and of the Applicant’s nephews now requires that very heavy weight attach in favour of revocation of the mandatory visa cancellation decision.

    PRIMARY CONSIDERATION 5 – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

25. Paragraph 8.5(1) and (2) of the Ministerial Direction outlines the Australian community’s expectations, stipulating that the Australian community expects non-citizens to obey Australian laws while in Australia, and that the Australian community expects the government to not allow individuals to remain in Australia where they have engaged in serious conduct in breach of this expectation. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government to not allow such a non-citizen to enter and remain in Australia (paragraph 8.5(1)).

26. Paragraph 8.5(3) of the Ministerial Direction states that these expectations apply irrespective of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. Decision-makers should proceed on the basis of the government’s views, as expressed in paragraph 8.5 of the Ministerial Direction, and it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to the Applicant circumstances, or evidence about those expectations. Rather, the Tribunal must regard paragraph 8.5 the Ministerial Direction as if it were a ‘deeming provision’: FYBR v Minister for Home Affairs [2019] FCAFC 185 at [68] per Charlesworth J and at [92]-[93], [100]-[104], per Stewart J; and Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68.

27. The Respondent Minister submits[34] that the Applicant’s offending constitutes a serious crime against a child and raises serious character concerns within the meaning of the Ministerial Direction, and that the Applicant now constitutes an unacceptable risk of re-offending such that this Primary Consideration requires that ‘heavy’ weight now attach against revocation of the mandatory visa cancellation decision. The latter submission is rejected by the Tribunal.  Earlier in these reasons the Tribunal has found that the Applicant does not represent as an unacceptable risk to the Australian community.

28. On behalf the Applicant it is conceded[35] that the expectations of the Australian community now weigh against the Applicant, yet given his specific circumstances these community expectations do not weigh against the Applicant in such a manner as to outweigh those ‘Primary’ and ‘Other’ Considerations that are still in favour of revocation; and that it would be inimical to the process of decision-making for the Tribunal to be deterred from the necessary full balancing of all considerations, solely because of the deemed nature of the community expectations expressed in this Primary Consideration.[36] That submission is accepted by the Tribunal as representing the correct expression of the legal principles that are now binding on the Tribunal.

    [35] Applicant’s SFIC paragraph 55.

    [36] FYBR v Minister for Home Affairs (2019) 272 FCR 454, per Stewart J at [90]; see also Charlesworth J, at [70].

29. Ultimately therefore, the Tribunal determines that the expectations of the Australian Community do still weigh in favour of the Tribunal affirming the decision to not revoke the mandatory visa cancellation, yet that the weight that might otherwise attach to this Primary Consideration is now outweighed by the combined effect of the weight to be assigned to other ‘Primary’ and ‘Other’ Considerations which are in favour of revocation of the visa cancellation.  In all the circumstances the Tribunal attaches a ‘medium’ measure of weight to Primary Consideration Five, in favour of it upholding of the visa cancellation decision.

    OTHER CONSIDERATIONS

30. Paragraph 9 of the Ministerial Direction sets forth the ‘Other Considerations’ that must be considered. The Tribunal addresses below each of the four stipulated subparagraphs

    
    

    (a), (b), (c) and (d).

    (a)       Legal consequences of the decision

31. Paragraph 9.1 of the Ministerial Direction requires decision-makers to be mindful of Australia’s non-refoulement obligations. In the current case non-refoulement does not properly arise as an issue requiring consideration. Other Consideration (a) is therefore weighed only neutrally.

    (b)     Extent of impediments if removed

32. Pursuant to paragraph 9.2 of the Ministerial Direction, decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country when establishing themselves and maintaining basic living standards (in terms of what is generally available to other citizens of that country), taking into account:

    (a)the non-citizen’s age and health;

    (b)whether there are substantial language or cultural barriers; and

    (c)any social, medical and/or economic support that will be available to them.

1. The Respondent Minister submits[37] that the Applicant is 39 years of age, in good health, and that he did not leave India until aged 29 - such that he would not face any language or cultural barriers, if returned to that country. The Respondent Minister also submits[38] that, although the Applicant may face some ‘practical and financial’ hardship in re-adjusting to life in India, this would not be insurmountable, such that this consideration should now only carry ‘a little weight’ in favour of revocation of the mandatory visa cancellation decision.

   [37] Respondent’s SFIC paragraph [53].

   [38] Respondent’s SFIC paragraph [55] – [56].

2. The Applicant submits that he would struggle very considerably if required to return to India given that all of his family (and thus familial resources) are now located in Australia. 

3. The Tribunal considers that the Respondent Minister’s submission under-estimates the extent and gravity of the hardships that would likely confront the Applicant, in the event that he were compelled to return to India. The Tribunal considers that this ‘Other’ consideration now weighs at least moderately in favour of revocation of the visa cancellation decision.

   (c)       Impact on victims

4. Under paragraph 9.3 of the Ministerial Direction, decision-makers are required to be mindful of the impact on victims of the Applicant’s offending if he is - or is not - allowed to return to the Australian community.

5. There is no evidence or other information about the impact of a decision by the Tribunal on the Applicant’s victim.  In the circumstances this other consideration weighs neutrally.

   (d)Impact on Australian business interests

6. Paragraph 9.4 of the Ministerial Direction requires that decision-makers must have regard to any impact on the interests of Australian business if the non-citizen is not allowed remain in Australia.

7. There is no evidence or other information about the impact of a decision by the Tribunal on Australian Business interests. In the circumstances this other consideration also weighs neutrally.

   CONCLUSION

8. Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the power to revoke the mandatory cancellation of the Applicant’s Visa: either the Applicant must be found to pass the character test; and if not, the Tribunal must be satisfied that there is ‘another reason’, pursuant to the Direction, to revoke the cancellation. As noted (and found) previously in these Reasons, the Applicant does not pass the character test, yet the Tribunal concludes that there is ‘another reason’ why the mandatory visa cancellation decision should now be revoked by the Tribunal.

9. In reaching its conclusion the Tribunal has had regard to the considerations referred to in the Ministerial Direction. As regards the weight to be allocated to each of these ‘Primary’ and ‘Other’ Considerations, the Tribunal has concluded:

   ·protection of the Australian community from criminal or other serious conduct (‘Primary Consideration 1’) – moderate weight, in favour of non-revocation;

   ·whether the conduct engaged in constituted family violence (‘Primary Consideration 2’) – neutral weight;

   ·the strength, nature and duration of ties to Australia (‘Primary Consideration 3’) – very heavy weight in favour of revocation of the visa cancellation decision;

   ·the best interests of minor children in Australia (‘Primary Consideration 4’) – very heavy weight in support of revocation of the visa cancellation decision; and

   ·expectations of the Australian community (‘Primary Consideration 5’) – medium weight in favour of non-revocation.

   OTHER CONSIDERATIONS:

   ·legal consequences of the decision – neutral weight;

   ·extent of impediments if removed – moderate weight in favour of revocation of the visa cancellation decision;

   ·impact on victims – neutral weight; and

   ·impact on Australian business interests – neutral weight.

   DECISION

10. Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside decision dated 18 December 2023 made by the Respondent’s delegate and substitutes it with a decision to revoke the mandatory cancellation of the Applicant’s visa.

I certify that the preceding 77 (seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Member McLean Williams

...........[SGD].........

Associate

Dated: 13 May 2024

Dates of hearing:	27 and 28 February 2024
Counsel for the Applicant:	Mr Shahed Sharify (Aickin Chambers)
Solicitors for the Applicant:	Carina Ford Immigration Lawyers
Solicitor for the Respondent:	Ms Mary Baras-Miller (Lawyer)
Australian Government Solicitor