Davey and Minister for Home Affairs (Migration)

[2019] AATA 2371

Davey and Minister for Home Affairs (Migration) [2019] AATA 2371 (6 August 2019)

Division:GENERAL DIVISION

File Number(s):      2018/3210

Re:Amber-Lee Davey

APPLICANT

AndMinister for Home Affairs

RESPONDENT

Decision

Tribunal:Mr A. Maryniak QC, Member


Date:6 August 2019

Place:Melbourne

The Tribunal sets aside the decision under review and remits it to the Respondent for reconsideration with a direction that the Applicant not be refused a visa under s 501(1) of the Migration Act 1958.

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

Mr A. Maryniak QC, Member

Catchwords

MIGRATION – visa refusal on character grounds – whether the Applicant passes the character test – more than minimal or remote chance the Applicant will reoffend – the Applicant does not pass the character test – whether the visa application should be refused – weighing of primary and other considerations – decision set aside and remitted with direction              

Legislation    

Migration Act 1958 (Cth)

Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)

Cases            

DKXY v Minister for Home Affairs [2019] FCA 495

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

Secondary Materials           

Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

REASONS FOR DECISION

Mr A. Maryniak QC, Member

6 August 2019

1. 1. This is an application for review of a decision made under s 501(1) of the Migration Act 1958 (the Act) to refuse to grant the visa Applicant, Mr Joginder Singh, a 32 year old citizen of India (the Applicant) a Partner (Subclass 309) visa (the visa). The review Applicant is the Australian citizen sponsor of the Applicant, Ms Amber-Lee Davey.

2. 2.        The issues for determination by the Administrative Appeals Tribunal (the Tribunal) are:

   a.(a)       whether the Applicant passes the character test prescribed under s 501(6) of the Act; and if not

   b.(b)       whether the Tribunal should exercise its discretion to refuse the visa.

3. 3. Both the character test and discretion limbs of s 501(1) are in issue in this proceeding.

   4.       BACKGROUND

4. 4.        The Applicant first arrived in Australia on 11 June 2009 as the holder of a Student visa.  He was only 22 years old at that time and had no exposure to the Australian way of life. 

5. 5.        On 27 August 2012 the Applicant applied for Partner (Subclass 820/801) visas on the basis of his relationship with the sponsor.  The application was refused on 24 February 2015.  The Applicant returned to India on 30 June 2015, and on 6 October 2015 applied offshore for the Partner (Subclass 309/300) visas.

6. 6. On 21 December 2017, the Applicant was issued with a Notice of Intention to Consider Refusal (NOICR) of his Subclass 309 visa. After considering representations made by the Applicant, a delegate of the Minister refused to grant the visa under s 501(1) of the Act on 14 May 2018. The Applicant’s authorised representative was notified of that decision by email on 15 May 2018, and the sponsor applied for review in the Tribunal on 10 June 2018.

7. 7.        The matter is not excluded from consideration under s 500(3) of the Act, as the sponsor would have been entitled to seek review of the decision under Part 5 of the Act, had the decision been made on another ground.

8. 8.        The Applicant remains in India.

9. 9.        The Applicant was represented by Mr Amber Gupta, a Migration Consultant with Migration Consultants Melbourne. The Respondent was represented by Ms Siran Nyabally, a Senior Lawyer with the Australian Government Solicitor. The Applicant and Ms Amber-Lee Davey, the Applicant’s wife and the Review Applicant, gave oral testimony before the Tribunal.

   11.     CRIMINAL HISTORY

   12.     False Imprisonment and Assault

10. 10.      On 3 October 2009, police received a telephone call from a sex worker (the victim) in relation to a dispute she had had with the Applicant. The victim claimed that the Applicant had approached her in his vehicle and an agreement was made for sex. The Applicant drove to a service station to withdraw money and returned to the car, at which time he attempted to haggle for the price of sex. An agreement was not reached, and the victim exited the car and began to walk up the street.

11. 11.      Approximately five minutes later the Applicant pulled up next to the victim and restarted negotiations, during which the victim re-entered the car. The pair could not agree on the price to be paid, at which time the Applicant grabbed the victim by the back of the neck and threatened her with a metal bar. He attempted to snatch the victim’s telephone, which she was holding in her hand, but when it subsequently rang, he told her to get out of the car.

12. 12.      The victim provided police with the vehicle’s registration plate. Police subsequently performed registration checks and contacted the registered owner, who stated that his housemate (the applicant) regularly used the vehicle. The applicant was arrested and interviewed by police, and he admitted his involvement in the incident. On 24 November 2010 the applicant was convicted of one count of false imprisonment, and one count of common law assault, and sentenced to a 12 month community based order.

    16.     Shop Theft

13. 13.      On 25 February 2013 the applicant attended a Shell service station in a red Holden Commodore. He filled his vehicle with petrol to the value of $99.99, and immediately left the service station without making any attempt to pay.  CCTV footage was provided to police, who identified the driver as the applicant, who at the time held a suspended learner’s permit. The applicant was interviewed and made admissions to police. He appeared before Werribee Magistrates’ Court on 21 May 2014. He was fined $500 and ordered to pay $100 compensation. No conviction was recorded.

    18.     Obtain Property by Deception

14. 14.      In September 2013, the Wyndham Crime Investigation Unit conducted an investigation after receiving a report of fraudulent purchases. On 9 October 2013, a search warrant was executed at a premises where the Applicant resided with the sponsor. Items were located and seized, and the Applicant was arrested and interviewed by police. The Applicant made no admissions. However, evidence of many of the fraudulent purchases was found on iPads belonging to the Applicant.

15. 15.      On 29 October 2014 the Applicant was convicted of 8 counts of Obtain Property by Deception, 5 counts of Attempt to Commit Indictable Offence and 1 count of Deal Property Suspected Proceed of Crime. He was sentenced to 6 months’ imprisonment and a 12 month community corrections order.

16. 16.      At the outset the Tribunal notes that the sentences imposed upon the Applicant are at the lower end and in total he has been imprisoned for a total of 6 months.

    22.     Character Test

17. 17.      The Respondent submits that the Applicant fails to meet the character test contained in s 501(6) of the Act on the basis that there is a risk that he will engage in criminal conduct if he is allowed to enter Australia: s 501(6)(d)(i).

18. 18.      The Respondent contends that there is a more than remote risk that the Applicant will engage in further criminal conduct. The threshold of risk involved in s 501(6)(d) is very low. Clause 6(2) of Annexure A to Direction 79 states that the s 501(6)(d) grounds are enlivened if there is “evidence suggesting that there is more than a minimal or remote chance that the person would engage in criminal conduct.” It does not require there to be a “significant risk”. The test is necessarily forward-looking: it is not sufficient to find that the person engaged in the conduct in the past: clause 6(3).

19. 19.      Whilst the Respondent accepts there is no evidence that the Applicant has reoffended in the 4 years since his most recent conviction, he submits that the crimes committed were serious, and that the Applicant has been offshore since mid-2015 and has hence been unable to commit any offences in Australia since that time. The Respondent submits that the 24 November 2010 sentence was imposed as a result of an unprovoked attack on a vulnerable victim, and the 29 October 2014 sentences arose from calculated attempts to defraud Australian citizens and businesses and took place over a considerable period.

20. 20.      The Applicant submits that he has learnt his lesson and has “totally changed”, but the Respondent submits that he has provided no evidence of any efforts to address his offending behaviour such as undergoing counselling or other therapeutic programs. The Respondent submits that these offences, coupled with the Applicant’s apparent lack of insight into the serious adverse effects of his behaviour, indicate a disregard for the laws of Australia, such that the Tribunal could not be satisfied that the Applicant would not engage in further criminal conduct.

21. 21.      The Respondent submits that the Applicant’s past offending, and the absence of any objective evidence of rehabilitation, indicates that there is an ongoing risk of him offending in a similar way. Given the seriousness of the offending – which included violence and multiple instances of fraud – the Tribunal would be entitled to conclude that any risk of re-offending is unacceptable.

22. 22.      On this basis the Respondent submits that the Tribunal should find that the Applicant does not pass the character test on account of s 501(6)(d)(i). Further, in closing, the Respondent submitted that the Applicant’s oral testimony envinced a predisposition to downplay and diminish his culpability, make self-serving omissions and displayed of lack of insight into his previous offending.

23. 23.      On balance, the Tribunal finds that the Applicant does not pass the character test. The Applicant and his wife gave evidence that they withheld key information from their child’s treating psychiatrist as the psychiatrist “would have asked questions”. Further, the Applicant selectively informed his wife about details of the assault on the sex worker as he did not want to upset her. Further, whilst the Applicant has said that he will be supported by his father until he is able to find more work, such support was available previously during the period when he engaged in credit card fraud. In such circumstances, the Tribunal finds that there is more than a minimal or remote chance that the Applicant will reoffend.

    30.     Legal Framework

24. 24.      Subject to the terms of the Act, the Minister may grant a non-citizen permission either to travel to and enter Australia or remain in Australia. That permission takes the form of a visa. A visa may be subject to conditions. It may be permanent, allowing the person to remain in Australia indefinitely, or it may be temporary, allowing the person to remain during a specified period, for a specified event, or while the holder has a specified status. There are various classes of visa set out in s 31(2) of the Act and others may be specified in regulations made under the Act. Regulations may specify the criteria that must be met for a visa of a specified class as do specific provisions of the Act.

25. 25. Section 501(1) confers a discretion on the decision maker. Even if, as here, the Applicant does not pass the character test, the Tribunal has the discretion as to whether the Visa should be refused.

26. 26.      Section 499 of the Act gives the Minister the power to make and give directions to persons exercising powers under the Act. A person (including the Tribunal) must comply with such directions. On 20 December 2018, pursuant to s 499, the Minister signed Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation under s 501CA (the Direction) with a commencement date of 28 February 2019.

27. 27.      The Tribunal is required to apply the relevant considerations in the Direction including the preamble (objectives, general guidance and principles) and the primary and other considerations contained in Part B, which concerns refusal of visas.

28. 28.      Paragraph 11 of Part B of the Direction sets out primary considerations to be taken into account when considering whether to refuse a non-citizen’s visa and includes:

    a.(a)       Protection of the Australian community from criminal or other serious conduct;

    b.(b)       The best interests of minor children in Australia; and

    c.(c)       Expectations of the Australian community.

29. 29.      Paragraph 14 of Part C provides the other considerations which must be taken into account, where relevant. They include (but are not limited to):

    a.(a)       International non-refoulement obligations;

    b.(b)       Impact on family members;

    a.(c)       Impact on victims; and

    b.(d)       Impact on Australian business interests.

30. 30.      These considerations are given their purpose by the principles set out in paragraph 6.3 of the Direction, which are as follows:

    (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 women or children or vulnerable members of the community such as 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.

    1.       PRIMARY CONSIDERSATIONS

    2.       Protection of the Community

31. 31.      The Protection of the Australian Community consideration has two aspects:

    a.(a)       the nature and seriousness of the Applicant’s conduct to date; and

    b.(b)       the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.

    The nature and seriousness of the Applicant’s conduct

32. 32.      It is of concern to the Tribunal that the Applicant has been slow to realise his obligations to obey Australian laws and be completely frank with Australian institutions.  Whilst the Respondent properly submits that this behaviour is inappropriate, the Tribunal must look at the Visa Applicant’s conduct overall and in context, with the Principles in mind.

33. 33.      The Tribunal finds that the Applicant’s conduct is, overall, very serious. The Applicant’s assault and imprisonment on a female sex worker is objectively very serious conduct for the purposes of the Direction: Paragraph 11.1.1(b). In addition, the Applicant’s various offences, for which he was convicted on 29 October 2014, resulted in a custodial sentence. While the Tribunal notes that, in terms of its length, the Applicant’s sentence was relatively short, the Tribunal recognises that, of the sentencing options available, imprisonment is the most severe. The fact that the sentencing Magistrate saw fit to impose a term of imprisonment reflects, in the Tribunal’s view, the seriousness of the Applicant’s conduct.

34. 34.      The Tribunal notes that the Applicant’s first offence occured only three months after he arrived in Australia.  However his three offences have all been at the lower end of the scale of possible offending; as reflected in the relatively light consequential sentences of:

    a.(a)       a Community Based Order for 50 hours unpaid community work;

    b.(b)       a $500 fine with $100 compensation; and

    a.6 months imprisonment and 120 hours unpaid community work.

35. 35.      All the offences were dealt with at the Magistrates’ Court level, the lowest level of courts within the State of Victoria which deal with criminal offences.

    The risk to the Australian community

36. 36.      The Applicant maintains that he now fully understands that Australia has a very low tolerance for criminal conduct and that if his Visa is granted, it will be subject to cancellation if he indulges in any further criminal activity.

37. 37.      In oral testimony, the Applicant gave the following evidence:

    a.(a)       He falsely imprisoned and assaulted a sex worker because he was angry at her. He explained that he was drunk and she was swearing at him, so he picked up a tyre lever which was under his car seat, grabbed her by the neck and asked her to shut the door before telling her not to swear at him.  The Applicant maintained such swearing included a racist element which agitated him.

    a.(b)       He remained unlawfully in Australia for around 12 months from August 2011 because he received poor immigration advice from a person named Jatinder. Despite having visited Jatinder’s office ‘many times’, the Applicant had no documentary proof of their meeting.

    b.(c)       He stole fuel from a petrol station in 2013 because he had forgotten to take his wallet with him, panicked and didn’t know what to do, so he left. He didn’t return because he was embarrassed and thought if he went back they would think he was a thief and there would be trouble.

    c.(d)       He committed credit card fraud in 2013 because he needed money. He had no work rights and therefore had ‘no options’. His friend ‘Honey’ told him he had a business selling ‘stuff’ for a profit, but it became clear that there was no business. He knew what he was doing was wrong, but he needed money, so he did it anyway.

38. 38.      The Applicant maintains that he was naïve and immature at the time of his offending. The Tribunal accepts that admission. It is evident to the Tribunal that his limited offending arose from his stupidity and immaturity, rather than any sophisticated, truly premediated approach to criminal conduct.

39. 39.      Over the periods of time during which he has been separated from his wife and first child, including missing the birth of his first and now (as at June 2019) second child, the Applicant has had the opportunity to reflect upon the high cost of his mistakes.  The Tribunal finds that he is generally remorseful for the consequences of his offending and he genuinely regrets such conduct.  He has paid a heavy price, to date, by being separated from his wife and children, including missing their births.

1. 40.      Whilst no formal rehabilitation programs have been available to the Applicant in his home town in India, he has been a regular attendee at his local Sikh Temple and volunteers for cleaning and food cooking and serving duties.

2. 41.      On balance, in considering all of the evidence, it is apparent that the Applicant has learnt from his stupid and ignorant actions. The Tribunal finds that, although the nature of the Applicant’s conduct to date is very serious, with a loving wife and two children, the Tribunal is of the view that the risk of committing any further offences or engaging in other criminal conduct is low.  The prospect of being unable to return to Australia has made the Applicant realise that upon his return it is mandatory that he be a ‘model’, law-abiding citizen.

3. 42.      This consideration weighs against the Applicant, but not so overwhelmingly as to drown out all other considerations. 

   5.       Best interests of Minor Children

4. 43.      The Applicant’s first child, Harleen Kaur Sudan, was born from the relationship on 21st January 2015. She is now a four-year-old and has a strong attachment to Mr. Singh. Ms Davey appeared at the hearing of this matter while pregnant, indicating that she was expecting to give birth to her second child by the Applicant shortly. In the time since Tribunal reserved its decision, the Applicant has provided evidence to the Tribunal that Ms Davey has given birth. There is no reason for the Tribunal to doubt the child’s parentage.

5. 44.      The Applicant submits that he will play an important parental role by supporting Mrs Davey in taking care of the children, being the bread winner, and by supporting Mrs Davey for further study so that she is able to independently earn a living.

6. 45.      The Respondent concedes that it is in the best interests of Harleen that the Applicant not be refused a visa. However, the Respondent qualified his concession in saying that a number of factors limit the weight this consideration should be given in the Applicant’s favour, these included that:

   a.(a)       the Tribunal could not be satisfied that the Applicant would play a positive parental role for Harleen in future;

   a.the Applicant has provided no objective evidence to substantiate his claims that his daughter has been advssely affected by his absence in Australia;

   b.the family had the capacity to maintain contact in other ways, such as through telephone and social media; and

   c.the Applicant’s wife is Harleen’s primary carer and there is no suggestion that she would not continue to fulfil a parental role in future.

7. 46.      The Tribunal accepts the following facts put on behalf of the Applicant. Mr. Singh wanted to keep Harleen in India. However, during her visit to India, she had been hospitalized for severe infection due to a lack of clean water and sanitation. She was on drips for three days and was closely monitored. It took Harleen nearly 3 months to recover.

8. 47.      Thereafter, on her second trip to India, she ended up getting abscesses and a scalp infection, which resulted in her being sent to the hospital where she underwent surgery.

9. 48.      On every visit to India, Harleen develops fever, cough and gastroenteritis and it takes her many weeks to recover. This happens despite best efforts to maintain the highest standards of cleanliness.

10. 49.      Harleen has recently been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and her parents have been recommended by Dr. R. K. Singla of Osho Clinic Psychiatry & Psychology to “live and stay together and take care of their child”.

11. 50.      Harleen will benefit from the  joint care of Mr. Singh and Mrs Davey. Parents play a very positive and important influence in a child’s life. She will clearly benefit from both parents being actively involved in her upbringing and separation from her father may result in long term impact. Ms Davey gave extensive oral evidence about the negative impact the Applicant’s absence has had (and will likely continue to have) on Harleen. Harleen is likely to feel the negative impact of absence of father on special events such as birthdays, father’s day, her first day of the school, Christmas, wedding anniversaries, school events and sporting events. Their second child will likely be similarly impacted.

12. 51.      There will be no one to take care of Harleen if Mrs Davey becomes incapacitated due to sickness, injury or if she meets with an adversity. There was evidence before the Tribunal that Ms Davey has limited familial support in Australia to assist with the care of Harleen. It will be even more difficult now for Ms Davey to take care of two children without the help of her husband.

13. 52.      The Respondent’s claim that “the family has the capacity to maintain contact in other ways, such as by telephone and social media” can be rebutted by that fact that distant relationships have emotional detachment. Harleen talks to the Applicant on the phone, however, she does not feel connected to her father and more recently has shown anger and refusal on talking over the phone. The level of warmth, and love cannot be transmitted through phone or social media. A simple example being kissing good night, patting the back on an achievement or giving a hug during a bad moment.

14. 53.      The Tribunal finds that it is in the best interests of the children that the Applicant lives in Australia. There would be an immense hardship inflicted on Mrs Davey if she had to care for two small children all by herself. This will have a natural flow on effect on their children. Importantly, the presence of father in the first few months is vital for bonding with a child.  It is in the best interests of his two minor children that the Applicant be permitted to return to Australia and this consideration weighs heavily in the Applicant’s favour.

    10.     Expectations of the Australian Community

15. 54.      The Respondent submits that this consideration should weigh against the Applicant. In making this submission, the Respondent relies on the decision of Mortimer J in YNQY v Minister for Immigration and Border Protection, in which her Honour held that this consideration is inextricably linked to the other primary consideration regarding protection of the Australian community and will, in effect, inevitably weigh against an Applicant who has failed the character test and been convincted of serious crimes. 

16. 55.      The Tribunal respectfully disagrees with this characterisation of the consideration. In the recent decision of DKXY v Minister for Home Affairs Griffiths J found at [30]-[31]:

    In my respectful view, her Honour’s reasoning in [76] and [77] of YNQY would be plainly incorrect if this reasoning is read as stating that the primary consideration of expectations of the Australian community will always weigh against revocation

    …

    there are numerous statements in [the Direction] which require the primary consideration of expectations of the Australian community to be assessed in the light of all the relevant circumstances which appertain to it and it has to be weighed against all other relevant considerations (while noting that the Direction requires that primary considerations be given more weight than other considerations). In an appropriate case, and depending upon all relevant circumstances, the expectations of the Australian community may not weigh against revocation of the mandatory visa cancellation. Undoubtedly, decision-makers who are bound to give effect to the Direction are required to have due regard to the Government’s view regarding community values, standards and expectations, as set out in, for example, cll 6.2 and 6.3 of the Direction, but nothing in the Direction indicates that community expectations will always favour non-revocation.

17. 56.      The Tribunal respectfully agrees with the findings of his Honour Justice Griffiths; there is nothing in the Direction to support a construction whereby the consideration would inevitably weigh against an Applicant who has failed the character test and been convicted of serious crimes. The Tribunal is required to give due regard to the Government’s views, and has done so, however the Tribunal must make a finding taking into account all of the relevant circumstances.

18. 57.      In the particular circumstances of this case, taking into account all of the relevant considerations, the Tribunal considers that, while the Australian community would no doubt view the Applicant’s criminal history with disapproval, the Australian community would, on balance, expect the Applicant to be re-united with his wife and two children in Australia.

    3.       Impact on Family Members

19. 58.      The Respondent submitted in his Statement of Facts, Issues and Contentions (at paragraph 31) and briefly explored in cross-examination the proposition that the relationship between the Applicant and Mrs Davey was contrived and essentially occurred so that the Applicant could obtain a visa. Whilst there is some scant evidence regarding this, the preponderance of evidence before the Tribunal suggests that the relationship was and continues to be genuine.

20. 59.      Based upon the evidence and the submissions of the Applicant, the Tribunal makes the following findings. Mrs Davey had a difficult time growing up as she had learning difficulties and had trouble in making friends and was diagnosed with ADHD. She got bullied and has a lot of mood swings. She was raised in a single-parent household, and doesn’t want the same to happen to her children.

21. 60.      She is facing many challenges:

    a.(a)       There is no one else supporting her, and being on her own means that she is unable to undertake study or work. There is no one to share the responsibility of raising her children which causes a lot of anxiety and stress on her.

    a.(a)       Mrs Davey is persistently dealing with feelings of worthlessness and loneliness. She is beginning to lose hope for the future and finds it hard to enjoy any aspect of life.

    b.(b)       Mrs Davey is under a great deal of financial stress as she is unable to work or take study. She does not want her children to have to worry about financial difficulties as they grow up which causes her much stress and anxiety.

22. 61.      Mrs Davey has travelled to India on six occasions in the past four years. However, she has realised that living in India is very different to travelling to India. It is impossible for her to live in India permanently:

    a.(a)       She finds it difficult to communicate as 95% of people in the town do not speak English. And she cannot understand or speak their language.

    b.(b)       She is unable to drive or go out by herself for basic needs such as shopping or doctors. The cars are manual and though she had tried to learn, she had panicked when car stalled a few times. She had to remain home and Is dependent on someone to take her out. Additionally, it is not safe for women to go out by themselves.

    c.(c)       She has admitted that there she will have no chances of finding employment in India due to high unemployment rate from over-population and the fact that she does not have any qualifications and the language gap.

    d.(d)       She finds it difficult to consume food as even at the best places, the conditions are unhygienic due to dangerously high levels of pollution in the air and water. Her daughter and she has fallen sick every time they eat outside.

    e.(e)       There is no government supported “medicare” like system. The public health care is below standard and to access basic healthcare, a lot of money is required to be spent. There is a high level of corruption in private healthcare system and clinics and hospitals tend to prolong the treatment to inflate medical bills.

23. 62.      Mrs Davey is under a significant financial hardship and stress due to her inability to work or study as she is the sole caretaker of her child. She is currently receiving basic support payments from Centrelink which is just able to cover her rent, car, food and debt payments and leaves nothing in her bank account. Additionally, she has a significant Commonwealth Debt of nearly $14000 to clear, which relates to the litigation fee and removal of the Applicant. She is currently paying $40 per week from herself which leaves her with only $20 in her bank account every second week of payment.

24. 63.      If the Applicant is granted a visa to Australia, then he will be able to work and contribute financially and ease off the debt. The Applicant is physically fit and willing to work in any job he is able to secure..

25. 64.      It is in Mrs Davey’s best interest that Mr. Singh be granted the partner visa and it is not in her or her children’s interests to have to move to India.  This consideration weighs in favour of the Applicant.

    4.       International Non Refoulement Obligations

26. 65.      There is no evidence that this consideration applies and in any event the Applicant presently resides in India.  Therefore the Tribunal places no weight upon this consideration.

    6.       Impact on Victims

27. 66.      There is no evidence of any adverse impact on any victim if the Applicant were to return to Australia. Therefore, the Tribunal places no weight on this consideration.

    8.       Impact on Australian Business Interests

28. 67.      There is no evidence before the Tribunal of any adverse impact on any Australian business interests if the Applicant were not allowed to return to Australia. Therefore, the Tribunal places no weight on this consideration.

    10.     Conclusion

29. 68.      Taking into account all of the relevant considerations and the totality of the evidence before it, on balance, the Tribunal concludes that the damage that will likely be caused to the Applicant’s wife and his children should the visa be refused outweighs the countervailing considerations, if only by a slim margin.

30. 69.      Accordingly, the correct or preferable decision is that the Applicant not be refused the Visa on character grounds.

    1.       DECISION

31. 70. The Tribunal sets aside the decision under review and remits it to the Respondent for reconsideration with a direction that the Applicant not be refused a visa under s 501(1) of the Migration Act 1958.

1.       71.      

2.       I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Mr A. Maryniak QC, Member

…………[sgd]……………….
Associate

Dated: 6 August 2019

1.        

Date of hearing:	1 March 2019
Advocate for the Applicant:	Mr Amber Gupta
Representatives  for the Applicant:	Migration Consultants Melbourne
Advocate for the Respondent:	Ms Siran Nyabally
Solicitors for the Respondent:	Australian Government Solicitor