Chander and Minister for Immigration and Border Protection (Migration)
[2016] AATA 929
•22 November 2016
Chander and Minister for Immigration and Border Protection (Migration) [2016] AATA 929 (22 November 2016)
Division
GENERAL DIVISION
File Number
2016/4682
Re
Manmohan Chander
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Regina Perton, Member
Date 22 November 2016 Place Melbourne The Tribunal sets aside the decision under review and substitutes the decision that the discretion in section 501(1) of the Migration Act 1958 to refuse the applicant's visa on character grounds should not be exercised.
[sgd]........................................................................
Regina Perton, Member
MIGRATION – refusal of visa – character test – criminal record – discretion to refuse visa enlivened – protection of Australian community - risk to the Australian community should the conduct be repeated –– whether risk of future harm acceptable - exercise of discretion – decision under review set aside
Legislation
Migration Act 1958 ss 499(1), 499(2A), 501(2), 501(6), 501(7)
Secondary Materials
Direction No. 65 – Visa Refusal and Cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Regina Perton, Member
22 November 2016
Manmohan (Tony) Chander is a citizen of the United Kingdom. He first arrived in Australia on 30 June 2013 on a visitor (Class TV) visa. He departed on 14 July 2013 and returned on another visitor visa on 25 September 2013. On 18 October 2013 Mr Chander’s wife, Nakita Chander, applied for an Other Family (Residence)(Class BU) Carer (subclass 836) visa (carer visa) to take care of her Australian citizen mother who is quite unwell. Mr Chander was included in that visa application as a member of the family unit.
On 22 July 2014 a delegate of the Minister for Immigration and Border Protection (the Minister) refused the carer visa on the basis that Mrs Chander did not meet the criteria for a carer visa on the basis that there were other family members and possible community resources who could take care of Mrs Chander’s mother. The family appealed to the Migration Review Tribunal (now the Migration and Refugee Division of this Tribunal (the MRD)). On 27 August 2015 the MRD set aside the delegate’s decision determining that Mrs Chander met the criteria for a carer visa. The matter was remitted to the Minister for determination of any outstanding criteria.
Mr Chander had been the holder of a Bridging Visa A (Class WA) with work rights from expiry of his visitor visa and he had been working to support his family which now included two children, the younger having been born in Australia in 2014.
On 11 December 2015 Mr Chander was sent a notice of intention to consider refusal of his visa application under s 501(1) of the Migration Act 1958 (the Act) on the basis that the Minister’s delegate considered that he may not pass the character test because of his criminal record in the United Kingdom and his failure to disclose that record on his entry card when arriving in Australia on a visitor visa. Mr Chander’s representatives provided submissions to the Department on 23 December 2014 seeking the exercise of discretion not to refuse him a visa. On 30 August 2016 Mr Chander was advised that the Minister’s delegate had decided to refuse the grant of the carer visa.
On 30 August 2016 the Minister’s delegate also refused Mrs Chander’s carer visa application on the basis that Mr Chander, a secondary applicant for the visa, failed to meet the relevant public interest criterion in relation to character. The children were also secondary applicants. Mr Chander was taken into detention at the Maribyrnong Immigration Detention Centre, where he remains at the present time.
On 8 September 2016 Mr Chander lodged an application for review with the Tribunal.
LEGISLATIVE BACKGROUND
Under s 501(1) of the Act, the Minister may refuse to grant a visa if the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that the person passes the character test (s 501(6)).
The character test is set out in s 501(6) of the Act, which provides that a person does not pass the character test if one of a number of grounds in s 501(6)(a) to (d) is met. Section 501(6)(d) of the Act provides:
(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; or
…
Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. On 22 December 2014 the Minister issued Direction no. 65 - visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction no. 65) which came into operation on 23 December 2014.
Direction no. 65 provides guidance for decision-makers when making decisions to refuse or cancel a visa under s 501 of the Act, including the exercise of the discretion to decide whether a non-citizen should be permitted to enter or remain in Australia in circumstances where that person does not pass the character test.
Paragraph 6.3 sets out the principles behind Direction no. 65:
6.3 Principles
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian government can and should refuse entry to non-citizens or cancel their visas if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.
Paragraph 7 of Direction no. 65 sets out how to exercise the discretion:
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
a) 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; or
b) must take into account the considerations of Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Paragraph 8 requires decision-makers to take into account the primary and other considerations relevant to the individual case:
(1) Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant these to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of the visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations
MR CHANDER’S CRIMINAL CONVICTIONS
Mr Chander has no criminal history in Australia as shown in a National Police Certificate issued by the Australian Federal Police dated 22 October 2015. His criminal history in the United Kingdom as shown in a Police Certificate for Immigration Purposes issued by the Association of Chief Police Officers on 27 January 2014 is set out below.
Date Offence Court Disposal 21/03/1994 1. 1.Burglary and theft – dwelling
2. 2.Handling
3. 3. Possessing Controlled Drug
Wolverhampton
YouthYoung Offenders Institution
3 months
Compensation £308.75Young Offenders Institution 1 month
Fine £80.00
12/04/1996 1. Robbery between 14/10/1995 and 15/10/1995
2. Attempt/Robbery on 21/11/1995
3. Taking Motor Vehicle without consent between 20/11/1995 and 21/11/1995
4. 4. Having imitation firearm with intent to commit indictable offence between 14/10/1995 and 15/10/1995
5.
5. Taking motor vehicle without consent between 14/10/1995 and 15/10/1995
6. Using vehicle while uninsured between 20/11/1995 and 21/11/1995
7. Having imitation firearm with intent to commit indictable offence on 21/11/1995
8. Using vehicle while uninsured on 21/11/1995
Shrewsbury Crown Young Offenders Institution 6 years
Young Offenders Institution 2 years consecutive
Young Offenders Institution 4 months concurrent
Young Offenders Institution 2 years concurrent
Young Offenders Institution 2 years concurrent
No separate penalty
Young Offenders Institution 4 months concurrent
No separate penalty
17/05/1996 1. Taking motor vehicle without consent on 05/05/1995
2. Using vehicle while uninsured on 05/05/1995
Telford Magistrates Young Offenders Institution 1 month concurrent
No separate penalty driving licence endorsed 6 penalty points
20/09/2007 1. Battery on 12/09/2007 West Mercia Constabulary Caution 19/01/2008 1. Destroy or damage property (value of damage £5000.00 or less) on 01/01/2008 West Mercia Constabulary Caution 19/02/2008 1. Aggravated vehicle taking (taking) driving dangerously on road or place on 20/01/2008
2. Using vehicle while uninsured on 20/01/2008
3. Driving otherwise than in accordance with a licence on 20/01/2008
4. Failing to stop after accident on 20/01/2008
5. Failing to stop after accident on 20/01/2008
6. Dangerous driving on 20/01/2008
7. Assault occasioning actual bodily harm on 20/01/2008
Shrewsbury Crown Imprisonment 12 months disqualified from driving- obligatory 3 years
No separate penalty driving licence endorsed
No separate penalty driving licence endorsed
No separate penalty driving licence endorsed
No separate penalty driving licence endorsed
Imprisonment 12 months disqualified from driving- obligatory 3 years disqualified from driving-until extended test passed
Imprisonment 21 months
14/09/2010 1. Driving whilst disqualified on 08/09/2010
2. Using vehicle while uninsured on 08/09/2010
Hounslow Magistrates Community order 13/09/2011 driving licence endorsed disqualified from driving- discretionary 12 months unpaid work requirement 100 hours
No separate penalty driving licence endorsed
A Certificate of Conviction dated 10 November 2016 from the HM Courts & Tribunals Service in the Crown Court at Shrewsbury clarifies the sentence dated 19 February 2008:
·Imprisonment 12 months (concurrent)
·No separate penalty. Licence endorsed
·No separate penalty. Licence endorsed
·No separate penalty. Licence endorsed x 2
·Imprisonment 12 months
·Imprisonment 12 months (concurrent)
Disqualified from driving for 3 years and until extended test passed.
Total Imprisonment 21 months, (28 days on remand to count towards sentence)
MR CHANDER’S HISTORY
Mr Chander was born in Wolverhampton, England in 1977. He is a citizen of the United Kingdom. He is now 39 years of age. His parents had migrated to England from India prior to his birth. He and his family are Hindu. His father is now aged 72 years and his mother is 65 years of age. They remain in England. Mr Chander has four sisters and one brother. One of his sisters lives in Canada but the rest remain in England. Mr Chander is the third child in the family. Mr Chander’s father worked as a die caster but is now retired. His mother cared for the family but she also did some piecework, sewing clothes. None of his siblings or his parents has been involved in any criminal activity.
Mr Chander successfully completed high school despite being the victim of bullying by a group of local youths in Wolverhampton from about the age of 13 years. He found it hard to avoid the bullies, who were also of Indian origin and were four of five years older than he was, as some of them lived in the next street. They also bullied other children and took money from Mr Chander and others. Mr Chander described the area in which he lived as a pretty bad area of town.
Mr Chander stated that he and one of his friends, Makesh Rattu, who was also bullied by the same group, inadvertently became involved in criminal activity when he was 16 years old. An extract from his statement dated 24 October 2016 describing the circumstances of that first offence follows:
9. The first time I got into trouble was when we were still in Wolverhampton and involved the bullies I mentioned above and my friend Makesh. Makesh and I were walking together when one of the bullies told us to come with them. There was about four of the usual gang and one other guy I didn’t know. We all went to a terrace house nearby. They told Makesh and me to stay outside. One of the guys gave me a joint and told me to hold it while we were to wait for them. The other guys went around the back of the house, leaving Makesh and I outside at the front. They brought some things out and placed them on the ground near us and returned out of sight around the back.
10. While this was happening a neighbour saw what was happening and called the police. When the police car arrived Makesh and I were still at the front and I threw the joint to the ground but the police saw me. I was arrested and charged with burglary and theft, as police thought I was a lookout for the guys who went into the house. The charge of handling related to the goods which were left with Makesh and me by the thieves as they went back into the house and the dangerous drug was the cannabis joint I had been given to hold.
11. I didn’t tell the police and, later, the court what had happened because I was afraid that I would be bashed in custody. I was sentenced to three months detention. I served four weeks at the Brinsford Young Offenders Institution and was then released home.
…
Mr Chander told the Tribunal that a Legal Aid Lawyer advised him to tell the police about what actually happened. However, he decided to plead guilty and keep quiet about the circumstances that led to his involvement as he was too scared of the gang members who were also in the police station at the same time as he was.
Mr Chander’s parents and siblings moved their family, including Mr Chander, from Wolverhampton to Telford in 1995 following his difficulties with the law. They wanted him to have a fresh start. Mr Chander’s father was working near Telford. Mr Chander, who turned 18 years of age soon after the move, began working on a factory assembly line.
Mr Chander met a new group of friends in Telford. He was doing well in the new workplace and playing soccer and going to discos with the new friends. He stated that he was not aware that some of them came from criminal families. His description of what led to the next conviction in his statement of 24 October 2016, is as follows:
15. One night (14-15 October 1995) we went out together. There was three of us: me, Jasvinder Birring Singh (whose father was criminal) and Jagjit Singh. They asked me to drive and I agreed to do so. I didn’t know it was a stolen car. On the way they asked me to stop somewhere as they said they had to get something. We stopped at a warehouse. I waited at the car while Jasvinder and Jagjit went in. I didn’t know that they had a firearm with them and their plan was to threaten the security guard there so they could steal Pentium computer chips. I waited and they came out with some boxes, which they passed to me and I put them in the boot. We were there for about 10 minutes in total. We then returned to Jagjit’s place where we put the boxes into his garage. I didn’t think we’d done anything wrong. To me it all seemed ok. But Jasvinder and Jagjit had taken about 1 million pounds worth of these chips.
16. About one month later, I again drove Jasvinder, this time from near his home down to the local shops. He went into the grocery store and then came running out and told me to drive. He had tried to rob the store. Apparently this was all captured on security camera and a young kid from the area who knew us saw us. So we were both arrested and then police somehow figured out that Jasvinder had been involved in the robbery of the Pentium chips.
17. I was interviewed about both offences and told the police everything I knew about what had happened and what I had done. I was charged with these offences and remanded in custody to Brinsford again. Initially Jasvinder and Jagjit were also with me, but they threatened me not to say anything against them, so I was moved. But even then Jasvinder’s father, who had many criminal friends, for word to some of them and they passed on threats to me.
18. In the end I went to court and pleaded guilty to everything. The other two pleaded not guilty but were convicted. I didn’t give evidence against them and because the crimes were serious I was originally sentenced to eight years in Young Offenders Institution.
Mr Chander started serving his sentence in a Young Offenders Institution but when he turned 21 in mid-1998 he was moved to an adult minimum security prison. After a short time there, he was moved to an open prison. In 1999 Mr Chander was released on licence. Mr Chander started working for Kyokuni, a local company on the second day of his release. After spending a few days working in the factory, he was offered the opportunity to do some on-the-job training as a CNC setter. Mr Chander lived with his family in Telford and worked at that firm for two years before he began similar work for another company which was closer to home. Mr Chander worked for that company until 2005 when he started his own business as a hairdresser and barber. He had learned that trade while serving his sentence between 1996 and 1999.
Mr Chander kept out of trouble for several years. His record indicates that there was no trouble with the police between 1999 and 2007. Mr Chander said he kept going with his hairdressing business and continued to live with his family. His criminal record shows that on 20 September 2007 he received a caution for a battery that was said to have occurred eight days earlier. His explanation of that incident where he received a caution from the police without going to court is as follows:
… In September 2007 there was an incident when I received a caution. My shop was near a pub. One evening a drunken bloke who came out of the pub saw me standing at the front of my shop. He approached me and got right into my face. He wouldn’t stop so I pushed him away. When I did that he fell back into a lamppost. Just at that time police were passing and saw what happened. So I received an official caution for “battery”.
Mr Chander’s police certificate shows he received a caution on 19 January 2008 for destroy or damage property (value of damage £5000 or less) on 01/01/2008. Mr Chander told the Tribunal that he is unable to remember what this related to.
On 19 February 2008 Mr Chander was convicted of a number of driving offences, failing to stop after an accident and related charges. The original UK certificate contains some errors and a fresh certificate was obtained on 10 November 2016 clarifying the February 2008 sentence. Mr Chander’s description in his statement about what happened on that day is as follows:
24. On 20 January 2008 I met up with an old friend that I had [not] seen for a while. We went to a local pub. Another two of his friends joined us. They were all drinking but I don’t drink so I just talked with them. My friend asked me to drive his car to the local shops to get something for him. I shouldn’t have driven because at the time my license was disqualified, but I agreed to do so. It was a terrible night – the rain was poring [sic] down. I wasn’t familiar with the car and hit a pot hole, which caused me to loose [sic] control and hit the side wall. I was stuck in the car with the car still partly on the road so I wanted to move it a short distance to get it out off the road. The police saw me moving the car and thinking that I was leaving the scene of the accident stopped to speak to me. The driver’s door of the car was jammed and I couldn’t get out so I pushed hard on the door and it flew open, hitting one of the officers, so was put down initially as an assault. (Later I was told the charge of assault was not going to proceed so I am not sure why it is on the police certificate.)
25. I received a sentence of 21 months imprisonment for these offences, but that was automatically halved to 10 months. After about three month [sic] I applied to the prison governor and was granted “home curfew” release, meaning I was released to my home with an electronic tag. I served the balance of the sentence at home. I worked cutting hair from home during this time.
Mr Chander met his now wife, Nakita Bhalla, through mutual friends around the beginning of 2009. Mr Chander’s parents were not happy about the relationship because Nakita is a Sikh and they are Hindus. This led to an estrangement between Mr Chander and his parents and they are no longer on speaking terms. Mr Chander and Nakita began living together in London in around May 2009. Mr Chander obtained employment working for a company designing kitchens. Mr Chander and Nakita were married on 12 March 2010. Mr Chander’s brother attended the wedding but neither his parents nor any of his other siblings attended the wedding.
Mr Chander told the Tribunal that there had been one offence since he met his wife. In his statement, he described what happened.
29. In September 2010 Nakita had a miscarriage. She needed some medication from the pharmacy so I took her car to collect what she needed. I should not have driven because I was disqualified from driving at the time and the car was not insured for me to drive it. But Nakita was so unwell that I felt I really had to drive to get it for her.
Mr Chander said it was about a five minute drive to the pharmacy and on the way back he was stopped by police for a random check. As a result of this incident, he was convicted of driving whilst disqualified and without being nominated for insurance on his wife’s car. He was sentenced to community service for 12 months. He spent four Sundays painting fences and then was spared future attendance because he was working.
On 16 August 2011 Mr and Mrs Chander’s daughter was born.
In 2013 the family decided to travel to Australia to visit Mrs Chander’s family for her mother’s 60th birthday. They were aware that there were laws about entering Australia if you had a criminal record. Prior to travelling Mr Chander contacted a lawyer in the UK for advice about whether he needed to disclose his past offending. That lawyer mistakenly advised Mr Chander that he did not have to declare those offences. When they entered Australia on 30 June 2013, Mrs Chander completed the details on his incoming passenger card which Mr Chander signed. He did not declare the criminal convictions on that card. They went back to the UK on 14 July 2013. The family re-entered Australia on 25 September 2013. Again Mrs Chander completed the incoming passenger card without declaring any convictions. Mr Chander signed the card.
Mrs Chander’s mother was in poor health and needed someone to care for her. On 18 October 2013 Mrs Chander applied for a carer visa with her husband and daughter as dependents. A migration lawyer assisted them with the paperwork. The application form for the carer visa indicated that Mr Chander did not have criminal convictions but in a form that accompanied the carer visa application, the solicitor provided summary details of Mr Chander’s convictions. Mr Chander subsequently obtained the UK police certificate which was submitted to the Department.
Mr Chander was granted a bridging visa with permission to work and started work as a CNC setter for a lighting firm in Airport West in January 2014. He later started working for another firm and went back to the lighting firm as well, doing two jobs to help support his family.
Mr and Mrs Chander’s son was born in Australia on 1 May 2014. Mr and Mrs Chander have lived with Mrs Chander’s parents since they arrived in Australia. Her parents are Australian citizens and are both suffering serious health conditions. As indicated earlier, Mrs Chander was found to have met the general criteria for a carer visa by the MRD but the visa has now been refused due to Mr Chander’s criminal convictions and his failure to disclose them on his incoming passenger card upon entrance into Australia.
Mr Chander was taken into immigration detention on 30 August 2016 where he remains. His wife and children visit regularly.
HOW DO THE PRIMARY AND OTHER CONSIDERATIONS APPLY TO MR CHANDER?
The three primary considerations are set out in Part B of Direction no. 65:
11 Primary considerations – visa applicants
(1) In deciding whether to refuse a non-citizen’s visa, the following are primary considerations:
a) Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Expectations of the Australian Community.
Protection of the Australian community from criminal or other serious conduct
Paragraph 11.1 under Part B of Direction no. 65 states:
(1) When considering the protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. 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.
Paragraphs 11.1.1 and 11.1.2 of Direction no. 65 describe a number of principles that must be taken into account in considering the nature and seriousness of the criminal offending or other conduct to date. Pursuant to Paragraph 11.1.1(1):
a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
Mr Chander was convicted of serious offences including robbery and possessing an imitation firearm. He was sentenced to a lengthy sentence in his late teens. He also has several driving related convictions.
Mr Chander’s explanations of the circumstances of the criminal activity have been described earlier in these reasons for decision.
As per paragraph 11.1.1(1)(b) of Direction no. 65:
The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
There are no details of the ages or occupations of the people who were the targets of the robberies. The Tribunal does not have any court transcripts, police briefs or sentencing statements that are usually available under summons where Australian convictions are relevant.
Mr Chander maintains that his role was to help stack the boot of a car with boxes, the contents of which he was unaware and to drive cars after the robberies or attempted robberies. He states that he did not participate in any violence in relation to any of those crimes and there is no available evidence to the contrary.
Pursuant to paragraph 11.1.1(1)(c) of Direction no. 65:
Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
Mr Chander has not committed any crimes in Australia, whether in detention or in the community.
As per paragraph 11.1.1(1)(d) of Direction no. 65:
d) The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;
Mr Chander’s conduct is considered serious given the direction in this paragraph.
As per paragraph 11.1.1(1)(e) of Direction no. 65:
e) The sentence imposed by the courts for a crime or crimes;
The list of convictions was set out earlier. Mr Chander was imprisoned for his offences, initially in youth detention, but later in adult prison. There were also various penalties for driving offences.
As per paragraph 11.1.1(1)(f) of Direction no. 65:
f) The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;
Mr Chander’s last conviction was for a driving offence in 2010, for which he received a community order and was disqualified from driving. His most serious offences were in his late teens and early twenties. Mr Chander’s convictions appear to have become less serious as he has grown older. Whilst he served several years in youth detention and then adult prison, he then had a period of some seven years when he did not come to police attention. His later convictions involved driving related matters.
As per paragraph 11.1.1(1)(g) of Direction no. 65:
g) The cumulative effect of repeated offending;
Mr Chander served sentences of youth detention and imprisonment. He has not been in any trouble since the driving offence in 2010. He appears remorseful and appears to have turned his life around.
As per paragraph 11.1.1(1)(h) of Direction no. 65:
h) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
Mr Chander concedes that he provided incorrect information on his incoming passenger cards. He told the Tribunal that he obtained legal advice over the telephone from a UK lawyer that he did not need to declare his record as he had served his sentences which were now considered spent. He cannot recall the name of that lawyer. He stated that he genuinely believed the advice was correct and did not deliberately provide the wrong response.
Mrs Chander gave evidence that Mr Chander had told her that before they left for Australia. She said she filled out the cards in her handwriting based on the information her husband had been given.
As per paragraph 11.1.1(1)(i) of Direction no. 65:
i)Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The offences committed in the United Kingdom would be likely to be classified as offences in Australia.
Conclusion regarding the seriousness of the offences
The Tribunal concludes that the offences were serious.
The risk to the Australian community should Mr Chander commit further offences or engage in other serious conduct
Paragraph 11.1.2 of Direction no. 65 states:
(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In addition, decision-makers should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(3) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
If Mr Chander commits similar offences to those of 20 years ago, the Tribunal finds that there would be significant harm to individuals or the Australian community should he engage in further criminal or other serious conduct, as per paragraph 11.1.2(3)(b) of Direction no. 65 below:
The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence from independent and authoritative sources on the likelihood 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); and
iii. the duration of the intended stay in Australia.
The serious offences committed by Mr Chander occurred nearly two decades ago. The offences in 2007, 2008 and 2010 were not as serious as the early offences. Mr Chander provided evidence of the courses he had undertaken whilst in prison and youth detention. These included courses in hairdressing, IT, manual lifting and handling, cooking and food hygiene.
Since Mr Chander’s last offence in 2010, and for the period between 1999 and 2007, he did not come to police attention. He has been working throughout his adult life apart from the time he was in youth detention or in prison. Details are provided earlier in these Reasons for Decision.
Mr Bernard J Healey, clinical and consultant psychologist, provided a report dated 1 October 2016. He also gave oral evidence. Mr Healey has been in practice for 54 years and is a life member of the Australian Psychological Society. He spent three hours with Mr Chander on 1 October 2016. Mr Healey provided details of his discussions and the results of tests he administered.
TESTING
1. Wechsler Adult Intelligence Scale IV
2. Williams Test of Delayed Recall
3. Minnesota Multiphasic Personality Inventory (2) – 567 questions
Intellectual testing revealed a full-scale IQ of 73, placing him at the 4th percentile, where 96% of people his age would do better. Verbal comprehension index was 68 (reflected in weak verbal skills, vocabulary and information), perceptual reasoning index better at 86 (consistent with his adaptive skills), working memory index 83 and processing speed index 74. Powers for delayed recall were sound, and it was inferred that his low level of intellect was congenital in origin, certainly a major factor in his naiveté, which was so evident in his juvenile offending. Similarly, the offending in 2008 was consistent with his reduced capacity for sound judgement in his acquiescence to the requests of devious others.
Personality testing was administered with care to ensure that he understood questions asked, and his responses were interpreted with caution. The profile was indicative of depression (link to his current predicament) and associated anxiety…
Mr Healey’s conclusions were:
Following study of pertinent aspects of this man’s background combined with observation of him, discussion with him, survey of relevant documentary material and finally application of detailed testing, certain conclusions were drawn.
He was born in the UK and lived with his parents (who originated from India, an older brother and four sisters, all of whom have been conforming. With his emerging maladjustment, he came to feel marginalised in the family setting, exacerbated by the bullying to which he was subjected at secondary school.
Apart from the bullying at school, his early health was sound; he was also the victim of a beating while in youth training. In 2005 he lost consciousness after striking his head in a fall and was observed in hospital. He doesn’t consume alcohol or take illicit drugs.
Despite his limited intellect, he felt he achieved reasonably well at school, then underwent on-the-job training in computer training. Between ages 18 and 22 he did a number of courses in youth training, and upon his release worked in machine programming. His parents helped him to establish a hair salon which he ran until he was remanded in 2008, and in 2009 he secured work in a hardware store. In Australia he has worked for two companies, one on morning shift the other on afternoon shift, in computer programming.
His only serious relationship has been with his wife, mother of his two children, a 5 year old daughter (who has a speech disorder and possible developmental delay) and a son 2 (born with a dilated kidney, requiring regular review at the Children’s Hospital). His wife is carer for her mother, who is confined to a wheelchair, and her father also has serious health problems; they had lived in the UK and originated from Kenya. His wife’s parents and siblings are Australian citizens. Manmohan is hopeful of saving sufficient funds to buy a bigger home to better accommodate his mother-in-law in particular. There is little time for recreational pursuits, great focus is placed on home and family
Specific testing revealed reduced intellectual capacity with a full-scale IQ of 73, when 96% of people his age would perform better. Powers for delayed recall were sound, and his low level of intellect was inferred to be congenital in origin. Clearly with this level of intellect, as a juvenile, one could better understand how he might have been persuaded to naïvely engage in activities that brought him into transgression of the law, and obliged to spend quite a long time in youth detention. He was conforming then, until once again he was persuaded to provide assistance to devious others; because of his driving offending he lost his license, but felt obliged to drive when his wife required medication after suffering a miscarriage.
Personality testing was indicative of depression and anxiety, certainly exacerbated by his current predicament.
In view of all his circumstances, more particularly in view of the needs of his wife and their young children, as well as his ailing mother and father-in-law, he is hopeful of being permitted to remain in Australia so that he may continue to provide assistance for all family members. It is the writer’s view, in the light of his results and his dedication, that it is unlikely he would engage in further offending; indeed his most recent offending was the driving matter in the UK in 2010.
In oral evidence, Mr Healey stated that he maintained the view that Mr Chander was unlikely to further offend. He stated that there was an absence of sociopathic or psychopathic tendencies and no evidence of lying or hyper-manic features. He said that Mr Chander’s marriage and children are of great importance to him. He further stated that despite tests faced within the marriage, there was evidence of dedication and resolve in the marriage which had had a stabilising effect on Mr Chander’s behaviour.
Under cross-examination, Mr Healey said that Mr Chander’s non-verbal skills were strong and hence his ability to undertake programming. Mr Healey said that Mr Chander has accumulated wisdom since his naïve younger days which led to his convictions. Mr Healey said that naivety often falls over time, and he believes that this is the case with Mr Chander.
Mrs Chander, in giving her evidence, said she is in no doubt that her husband has turned his life around and is unlikely to reoffend. Excerpts from her statement dated 24 October 2016 concerning her husband’s character include:
22. I am fully aware that Tony has committed serious offences in the past, but those days are long behind him. In the time that I have known him he is always worked hard and tried to support me and our children through some very difficult times. He has been associating only with good people.
23. I realise now that we should have advised the department about Tony’s past when we came to Australia on the incoming passenger cards. When we applied for the carer visa we told our first agent Steve about Tony’s past offences and the advice we had received. Steve told us that there would be problems in getting the visa because of Tony’s criminal record, but we wanted to try because of my mother’s circumstances. Steve filled out the application form and gave it to us for signing so we assume that everything had been done correctly. We did not try to mislead the department; we just followed the advice we had received.
Ajit Bhalla, Mr Chander’s mother-in-law, provided a statement dated 24 October 2016:
1. Manmohan Chander is my son-in-law. He is married to my daughter Nakita. I have known him since April 2009 when Nakita first told me about him. He has been honest regarding his past and told me everything. I was very surprised, as he was so pleasant and well spoken when I met him
…
3. Manmohan is like a son to me. He is well spoken and has very manners. He is very helpful in the house. He treats my daughter very well and has been a good role model for the children. He is a good family man and puts his family first. I am happy my daughter married him, as he has become a good family member. I still can’t believe his past and how much bad luck he has had.
4. I really believe he deserves a chance to prove to the Australian community that he has changed from the person who got involved in these crimes in past years. I have seen so much good in Manmohan.
On the basis of all the material, the Tribunal finds that the risk of re-offending is low. Whilst Mr Chander’s offending was serious, the evidence indicates that he is unlikely to reoffend. There is also the issue of the wrong information on the incoming passenger cards.
Best interests of minor children in Australia affected by the decision
Mr Chander has two children in Australia whose interests are affected by the decision. Their mother faces the dilemma of whether to stay in Australia to take care of her mother or to return to the UK if the carer visa is refused. In Australia they live in an extended family with their grandparents. Until he was taken into immigration detention their father was working to support them as well is caring for them.
In a statement dated 4 October 2016, Dr Zoe Asher, Consultant Paediatrician at the Western Children’s Health Service, described the impact on Mr Chander’s daughter of her father having been taken into detention. Dr Asher stated that she had been seeing Miss Chander, now aged five years, since June this year and described her problems and the impact of the separation from her father:
I was informed that...[Miss Chander’s] father was taken into immigration detention approximately one month ago. Since this time…[Miss Chander’s] behaviour at home in kindergarten has deteriorated with increased temper tantrums and aggressive behaviour, her speech development has slowed and her toileting has regressed with day and night time urine incontinence. She is developed night terrors, which she previously did not have and she has difficulty falling asleep some nights, crying herself to sleep. She has reduced appetite and has lost weight since her first appointment.
It is clear that …[Miss Chander’s] recent separation from her father and the subsequent stress placed on her mother are having a significant negative impact on…[her] emotional well-being and her development.
The best interests of Mr Chander’s children is obviously to be with their father. This primary criterion weighs in favour of not refusing the visa.
Expectations of the Australian Community
As has been pointed out in Direction no. 65, the Australian community would expect a person who has committed serious crimes to not be allowed to be granted a visa. However, many sections of the community might well be impressed at how Mr Chander has turned his life around.
The Tribunal finds that this criterion weighs marginally in favour of refusing the visa.
Other considerations – visa applicants
Paragraph 12(1) of Direction no.65 sets out other considerations that must be taken into account where relevant. The considerations include but are not limited to:
a)International non-refoulement obligations;
b)Impact on family members;
c)Impact on victims;
d)Impact on Australian business interests.
Mr Chander is a citizen of the United Kingdom and is able to return there. There are no international non-refoulement obligations.
There would be a huge impact on Mrs Chander’s parents, particularly her mother, if the visa was refused. Her parents are Australian citizens as are a number of other family members. Mrs Chander’s visa was refused on the basis of her husband’s character. The MRD’s decision sets out Ajit Bhalla’s circumstances, the type of care she needs and why it cannot be provided in the community or by other relatives. Mrs Chander’s mother’s health has deteriorated further in the last two years. Her mother gave oral evidence to the Tribunal about her son-in-law sitting in a wheelchair with oxygen being audibly pumped whenever she spoke.
There is no evidence that the grant of the visa would have any impact on victims of the UK crimes that took place many years ago.
Paragraph 12.4(1) of the Direction provides the following explanation of the consideration regarding business interest:
Impact on Australian business interests if the noncitizen’s visa application is refused, noting that an employment link would generally only be given weight where visa refusal would significantly compromise the delivery of a major project or delivery of an important service in Australia.
In terms of the impact on business, the Tribunal had evidence before it from Kathy Bell, a manager of a recruitment and placement agency about how difficult it is to recruit skilled CNC programmers in Australia. She said that Mr Chander is skilled and diligent in his work. She stated that she would be happy to rehire him despite his criminal record provided he is willing to declare it to the prospective client. There were also a number of references from companies for which he has worked in Australia. However, it cannot be said that the refusal of a visa would significantly compromise the delivery of a major project or of an important service in Australia. Nonetheless, Mr Chander appears to have skills which are in short supply in Australia and would thus be able to gain and maintain employment.
CONCLUSION
The primary consideration regarding protection of the Australian community from criminal or other serious conduct, which weighs in favour of refusal of the visa, should be given some weight given the nature of the conduct and the lengthy period over which the offences occurred. The expectations of members of the Australian community, as described in Direction no. 65, would also weigh in favour of refusing the visa given the crimes of which Mr Chander has been convicted.
On the other hand, the primary consideration regarding Mr Chander’s children and the impact on members of his wife’s family, particularly his mother in law, weighs against refusal of the visa, should also be given significant weight.
The balancing act in cases such as this one is difficult. However, the outcome will ultimately be determined in accordance with the Tribunal's obligation, pursuant to Direction no. 65, to make a finding as to whether the risk of Mr Chander causing future harm to members of the Australian community is unacceptable.
Having regard, in particular, to the principles referred to in Direction no. 65 and the findings made in relation to those principles, the Tribunal concludes that the preferable decision in this case is that the application for the visa not be refused.
DECISION
The Tribunal sets aside the decision under review and substitutes the decision that the discretion in section 501(1) of the Migration Act 1958 to refuse the applicant's visa on character grounds should not be exercised.
70. I certify that the preceding 69 (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Ms Regina Perton, Member
[sgd]...................................................................
Associate
Dated 22 November 2016
Date of hearing 14 November 2016 Counsel for the Applicant
Advocate for the Applicant
Solicitors for the Applicant
Greg Hughan
Attila Mete
AUM Lawyers
Advocate for the Respondent Lachlan Gell Solicitors for the Respondent Clayton Utz
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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