Dhamija Pty Ltd and Minister for Immigration and Border Protection (Migration)
[2016] AATA 995
•6 December 2016
Dhamija Pty Ltd and Minister for Immigration and Border Protection (Migration) [2016] AATA 995 (6 December 2016)
Division
GENERAL DIVISION
File Number(s)
2016/0669
Re
Dhamija Pty Ltd
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Professor M J McGrowdie, Senior Member
Date 6 December 2016 Place Sydney The decision under review is set aside and substituted with a decision that the discretion under section 501(1) of the Migration Act 1958 (Cth) to refuse to grant Mr Singh a Temporary Business Entry (Class UC) Visa should not be exercised.
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Professor M J McGrowdie, Senior Member
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – visa refusal – application for sponsor visa – failure to pass character test – criminal record – dangerous driving causing death – 18 month suspended sentence – high degree of moral culpability not present – discretion to refuse applicant's visa – Ministerial Direction no. 65 applied – protection of the Australian community – seriousness and nature of the relevant conduct – the risk conduct may be repeated – expectations of Australian community – family of victim of applicant’s criminal conduct, impact on – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth) s 4(1), 499(1), 501(1), (6) & (7)
SECONDARY MATERIALS
Direction no. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501 CA
REASONS FOR DECISION
Professor M J McGrowdie, Senior Member
6 December 2016
This application is made by an employer sponsor, Dhamija Pty Ltd, in respect of the review, following refusal of the Delegate of the Minister for Immigration and Border Protection on 7 January 2016 of a visa application dated 6 November 2014 for Daljeet Singh in respect of a Temporary Business Entry (Class UC) visa.
BACKGROUND
Dhamija Pty Ltd is a company conducted by Pritam Chand Dhamija and which operates as ‘Bread ‘n’ More’, whose primary bakery is located at Matraville.
Mr Singh currently lives in India, having last left Australia on 12 December 2014. He first came to Australia in 2007 and remained here on numerous occasions since, predominantly on student visas. In Australia, Mr Singh obtained a Diploma of Hospitality Management and a Diploma of Hospitality Certificate III in Hospitality (Patisserie).
Dhamija Pty Ltd employed Mr Singh for a period as a baker.
Mr Dhamija, who is a director of Dhamija Pty Ltd, gave evidence to the effect that Mr Singh was a good worker and whilst Mr Singh was there over a period of nine months, profits went up. Mr Dhamija said he was keen to expand his business and open in different locations. He said he could rely on Mr Singh and is wanting to engage Mr Singh in this expanding business.
While Mr Singh was in Australia and employed by another organisation as a casual courier driver, Mr Singh was involved in an incident for which he was charged with the offence of “Dangerous Driving Occasioning Death”.
The circumstances of this road incident are that on 29 October 2010 Mr Singh had made a delivery to a warehouse in Moorebank and had returned to his van which was in the loading dock area. The deceased was there also making a delivery from a flatbed truck and moving around. He was beside his vehicle when Mr Singh reversed the van and struck the deceased.
Mr Singh immediately went to the assistance of the deceased and rang for an ambulance. The deceased died as a result of the injuries he sustained.
Mr Singh had reversed a very short distance over only a few seconds. The basis of the charge was that Mr Singh had failed to keep a proper lookout.
A plea of “not guilty” was lodged and a jury found the offence proven. Mr Singh was sentenced on 10 April 2012 by Keleman J in the District Court at Parramatta.
In his sentencing remarks, His Honour said that he was satisfied that Mr Singh had failed to keep a proper lookout, this being consistent with the jury’s finding of guilt. His Honour noted that Mr Singh had three offences for speeding in 2009 for which he was fined. Otherwise, Mr Singh had no record of any offences.
His Honour commented that:
Fortunately, he has a network of friends here in Sydney who are positive and supportive and have been particularly so since the commission of the present offence.
Further, His Honour commented that:-
As the psychological report notes his offending behaviour in respect of the present offence appears to be an aberration in an otherwise pro-social and well-adjusted lifestyle.
Significant remorse on the part of Mr Singh was noted by the Court and that the proceedings arising out of the charges had a salutary effect on him.
His Honour was satisfied that Mr Singh’s manner of driving did not involve an abandonment of responsibility or a high degree of moral culpability and that the offence fell very much to the lower end of the range of seriousness of such offences and involved a low degree of moral culpability.
In the current review, Mr Singh has also relied upon some short references provided for him and which, although attracting no significant weight, have been taken into account.
When making the visa application, Mr Singh answered “no” in respect of any offences or convictions in the past. Mr Singh says this was a mistake.
Indeed, on becoming aware of his mistake, he submitted a “Notification of incorrect answer(s)” form in this regard. It was signed on 26 May 2015.
The error in the original application was not something relied upon by the Delegate in determining Mr Singh’s visa application on 7 January 2016.
Also with regard to credit, Mr Singh said at the hearing that he recalled one of the speeding incidents in 2009 but did not deny that there were three as referred to by the District Court in the sentencing remarks.
CONSIDERATION UNDER S. 501 OF THE MIGRATION ACT 1958 (CTH) 19581958
Section 501(1) provides that:-
The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Section 501(6) provides that:-
For the purposes of this section, a person does not pass the character test if:
the person has a substantial criminal record (as defined by subsection (7)); …
Section 501(7)(c) provides that:-
For the purposes of the character test, a person has a substantial criminal record if:-
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; …
Mr Singh accepts that he does not pass the character test.
Nonetheless, Direction 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (the Direction) made under section 499, provides mandatory guidance in the exercise of the discretion provided in section 501(1).
THE DIRECTION
Part B of the Direction is relevant in determining whether to refuse a non-citizen’s visa.
There are three primary considerations set out in paragraph 11(1). They are:-
(a)Protection of the Australian Community from criminal or other serious conduct;
(b)The best interests of minor children in Australia affected by the decision; [and]
(c)Expectations of the Australian Community.
I will consider each of these primary considerations in turn.
Protection of the Australian community
Paragraph 11.1 and 11.1.1 details relevant matters in considering the protection of the Australian community and the nature and seriousness of the conduct.
Paragraph 11.1.2 deals with the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Underlying the concerns noted in those paragraphs is 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. (at 11.1.2(2))
The General Guidance provisions and the Principles set out in paragraphs 6.2 and 6.3 of the Direction are also to be taken into consideration.
Important to these provisions and principles is the notion that:-
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 … and will not cause or threaten harm to individuals or the Australian community.
In the present review I am mindful that the offence committed by Mr Singh was not intentional or as a result of reckless conduct.
It occurred as a result of careless inattention, the consequences of which were dramatic.
In viewing Mr Singh’s conduct in relation to the offence, the manner of Mr Singh and the circumstances of it were well reviewed by the sentencing Judge and I have referred to His Honour’s comments, which respectfully, I adopt.
In those circumstances the nature or seriousness of Mr Singh’s conduct do not, in my view, dictate that Mr Singh’s application be refused.
I must also consider in relation to the protection of the Australian community, the risk of Mr Singh re-offending.
The likelihood of Mr Singh engaging in any criminal conduct is extremely low and at such a level as to conclude that there is no risk of further offending that which any citizen would carry if there was a change in the person’s nature.
Best interests of minor children in Australia affected by the decision
There is no evidence of any children being involved. I need not go any further on this point.
Expectations of the Australian community
I believe that the expectations of the Australian community are reflected in the sentence imposed by the District Court.
Mr Singh was given an 18 month suspended sentence and placed on a bond to be of good behaviour for 18 months. His driver’s license was suspended for a period of one year.
The time of the bond has well expired and Mr Singh did not break the bond. He showed appropriate remorse. He went to the deceased’s aid immediately. Mr Singh could generally be regarded as a person of good character given the material before the Tribunal.
I do not consider that the expectations of the Australian community indicate that the discretion should be exercised so as to refuse Mr Singh’s application. Mr Singh could generally be regarded as a person who was part of the community during his period of stay.
Apart from the primary considerations, there are other considerations to be taken into account.
These are set out in paragraph 12 of the Direction, and include:-
(a) International non-refoulement obligations;
(b) Impact on family members;
(c) Impact on victims; [and]
(d) Impact on Australian business interests.
It is pertinent to note that the above list is not exhaustive. Other factors may be considered, where appropriate.
OTHER CONSIDERATIONS
International non-refoulement obligations
There are none to consider in this matter.
Impact on family members
There is no indication of any family members that requires consideration before the Tribunal, at least as far as the evidence and the submissions of the parties are concerned.
Impact on victims
Whilst the impact upon the victim’s family of the event the subject of the charges would have been immense, there is no evidence before the Tribunal that the granting of a visa would adversely impact upon them.
Impact on Australian business interests
The bakery business of Mr Singh’s sponsor may be advanced if he were able to work in it, upon the basis of the evidence given.
However, paragraph 12.4 of the Direction provides 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.
Accordingly, and apart from Mr Singh’s acceptance by his sponsor as a member of the workforce in Australia, the impact on Australian business interests is not a consideration in the present application.
ANY OTHER CONSIDERATIONS
There are no significant considerations other than referred to already, which appear for analysis.
CONCLUSION
Weighing all of the considerations, I conclude that the decision under review is set aside and substituted with a decision that the discretion under section 501(1) of the Migration Act 1958 (Cth) to refuse to grant Mr Singh a Temporary Business Entry (Class UC) Visa should not be exercised.
I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Professor M J McGrowdie, Senior Member
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Associate
Dated 6 December 2016
Date(s) of hearing 14 July 2016 Representative for the Applicant Mr N Dobbie, Visa Immigration Specialists Australia Pty Ltd Solicitors for the Respondent Ms B Griffin, Australian Government Solicitor
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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Natural Justice
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Procedural Fairness
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Statutory Construction
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