Eswaran and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Eswaran and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2048 (30 June 2020)
Division:GENERAL DIVISION
File Number(s): 2020/2179
Re:Keerthiraja Eswaran
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member Rebecca Bellamy
Date:30 June 2020
Place:Brisbane

The decision under review is set aside and substituted so that the discretion in s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) to revoke the mandatory cancellation of the Applicant’s visa be exercised.
.............................[SGD]...........................................
Member Rebecca Bellamy
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class SN Subclass 190 Skilled – Nominated visa - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review set aside and substituted
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIAL
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member Rebecca Bellamy
30 June 2020
THE ISSUE BEFORE THE TRIBUNAL

Mr Eswaran (“the Applicant”) is a 36 year old citizen of India. In 2008, when he was 24 years old he moved to Australia on a student visa. The most recent visa granted to him was a Class SN Subclass 190 Skilled – Nominated visa (“visa”) on 27 August 2015.[1]
[1] Exhibit G1, s 501 G-Documents, G48.
On 24 May 2019 the Applicant was sentenced to 23 months imprisonment for wildlife and firearms offences.
This led to the Respondent deciding to mandatorily cancel the Applicant’s visa under
s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on 20 November 2019 on the basis that he did not pass the character test.[2] On 17 December 2019, the Applicant made representations as to why the decision should be revoked. On 6 April 2020, the Respondent decided not to revoke its decision (“Decision under Review”).[3]
[2] Ibid, G59.
[3] Ibid, G2.
The Applicant lodged an application with this Tribunal on 15 April 2020 seeking a review of the decision under review.[4] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
[4] Ibid, G1.
The hearing of this application proceeded on 15 and 16 June 2020. The Applicant, his wife, a physiotherapist and a psychologist gave evidence by video link. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”. The “G-Documents” were filed on 29 April 2020, and the Respondent’s supplementary materials were filed 1 June 2020. On both occasions the Respondent indicated that the materials had been or would be provided to the Applicant at that time. The Applicant was represented by a solicitor and counsel in these proceedings.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4)       The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
The Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[5]
[5] [2018] FCAFC 151.
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[6]
[6] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[7] I will address each of these grounds in turn.
[7] Ibid.
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
The Applicant was sentenced to a total period of 23 months imprisonment and required to serve 13 months of that sentence in custody. Accordingly, there is no doubt that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test.[8] He cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
[8] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions (“SFIC”), paragraph 8.
Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) has application.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 6.3 of the Direction contains several principles that must inform a decision-maker’s application of the considerations in paragraphs 7 and 8.
Paragraph 7(1) of the Direction provides that:
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[9]
[9] The Direction, sub-paragraph 7(1)(b).
Paragraph 8(1) of the Direction provides that:
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 or grant a visa to a visa Applicant, cancel the visa of the visa holder, or revoke the mandatory cancellation of the visa. These different considerations are articulated in Parts A, B and C...
Part C provides for the decision-maker to take into account “Primary Considerations”[10] and “Other considerations”.[11] The Primary Considerations are set out in paragraph 13.(2) of the Direction (contained in Part C) and they are:
[10] The Direction, paragraph 13.
[11] The Direction, paragraph 14.
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
The Other Considerations are set out in paragraph 14(1) of the Direction (contained in Part C) and they are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[12]
[12] [2018] FCA 594.
“…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[13]
[13] Ibid, [23].
The principles set out in paragraph 6.3 of the Direction, that should inform the decision-maker’s application of the primary considerations and other considerations are summarised 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;
(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 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;
(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;
(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 be allowed to come to or remain permanently in Australia; and
(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 for determining whether to exercise the discretion.
THE APPLICANT’S BACKGROUND AND OFFENDING HISTORY
The Applicant was born in India.[14] He moved to Australia when he was 24 years old to study. He had already completed secondary schooling up to year 12. His parents and some relatives live India.
[14] Exhibit R2, Respondent’s tender bundle, page 69.
Two years after arriving here, the Applicant was convicted of drink driving (with a blood alcohol concentration of 0.122%), driving without due care, and disobeying a red traffic light. These offences all arose from one driving incident in which the Applicant drove through a red traffic light, was followed by the police, and hit an electric pole.[15] The Applicant told the Tribunal that he had only consumed one drink.[16] Given his blood alcohol concentration I consider this evidence to be an unconvincing attempt to minimise the seriousness of his offending. The Applicant had one further serious traffic incident in March 2013 when he drove into a car that was stopped at a red traffic light, causing such damage that the other car could not be driven. He was issued with an infringement notice for “Drive on a public street with undue care”.[17] Since then, the Applicant has continued to drive[18] without incurring any further serious traffic infringement.
[15]    Transcript, page 45, lines 13 to 18.
[16]    Ibid, lines 25 to 28.
[17]    Exhibit R2, Respondent’s tender bundle, pages 5 to 6.
[18]    Transcript, page 45, lines 34 to 35.
The Applicant got married in April 2012.[19] His wife is an Indian citizen who is a permanent resident in Australia.[20] She grew up, and was educated, in India. She worked for a period there in IT support. She moved to Australia in November 2012 when she was 23 years old.[21] In January 2017 the Applicant and his wife had a son who is currently three years old.[22] Their son is an Australian citizen.[23]
[19]    Exhibit G1, G-Documents, G7, page 66.
[20]    Exhibit G1, G-Documents, G50.
[21]    Transcript, page 89, lines 25 to 35
[22]    Exhibit G1, G-Documents, G7, page 67.
[23]    Exhibit G1, G-Documents, G11, page 85.
The Applicant obtained a Diploma in Conservation and Land Management and Certificate IV in Conservation and Land Management in 2010, and a Bachelor of Environmental Management in 2012.[24]
[24] Exhibit G1, G-Documents, G43, page 198, G44, page 199, G45, pages 200, and G7, page 73.
Between April 2011 and September 2012, the Applicant was employed as a “reptile interpretation officer”. He then worked in retail, before being employed as a zookeeper and taxidermist at a Crocadylus Park. Between January 2016 and December 2018 he was self-employed, listing his employment as taxidermy and organic farming.[25]
[25] Exhibit G1, G-Documents, G7, page 73.
In August 2015 the Applicant was granted permanent residency.[26]
[26] Exhibit A1, Applicant’s SFIC, paragraph 2.
The Applicant is a taxidermist. He says he has a passion for wildlife and knowledge about their anatomy and physiology, as well as the preservation of life after death.[27] The Applicant has hundreds of specimens in his home in a showcase.[28] A specimen can be an entire animal or a part of an animal such as a bone or feather.[29] The Applicant told the Tribunal that he normally obtains specimens by collecting roadkill or acquiring dead animals from veterinary hospitals or the RSPCA.[30] He said he also likes to photograph animals in nature.[31] The Applicant’s activities with respect to taxidermy are, for the most part, lawful.
[27]    Transcript, page 50, lines 20 to 45.
[28]    Transcript, page 49, lines 34 to 44.
[29]    Ibid, lines 45 to 48.
[30]    Transcript, page 33, lines 13-21, page 51, lines 30-37.
[31]    Transcript, page 50, lines 29-30.
There was some evidence before the Tribunal that the Applicant adopted four cats, in around 2013, from multiple animal shelters and then those cats disappeared. The Applicant gave evidence that he adopted the cats as pets and did not kill them. He said he put the cats in a cage for three or four days[32] as they were new and he did not want to “let them free”[33]. The Applicant and his wife then went overseas unexpectedly, leaving the cats in the cage and in the care of a housemate. He said he was told that the neighbour’s dog subsequently broke into the property, opened the cage and the cats were gone.[34] He did not explain how the dog could have opened the cage. He said that he could get dead cats for free from animal hospitals if he wanted to, so he had no reason to adopt cats and kill them.[35] I am prepared to accept that, and I mention the evidence surrounding the cats because, to my mind, leaving cats in a cage for days on end is not the sort of thing a person with empathy and affection for animals does. It tends to indicate that the Applicant’s interest in animals is entirely forensic and academic, which gives some context to his dealings with animals and his offending.
[32]    Ibid, lines 1 to 2.
[33]    Transcript, page 32, lines 34 to 35.
[34]    Ibid, lines 13 to 47.
[35]    Transcript, page 33, lines 16 to 25.
In March 2017, the Applicant was convicted of the following offences and sentenced to an aggregate penalty of 10 months imprisonment, fully suspended for two years:
·take protected animal (x7);
·possess protected wildlife (x347);
·prohibited entrant in/out of Territory (x11);
·discharge firearm Road or Public Place;
·use trap in reserve (the Kata Tjuta National Park); and
·discharge firearm on land without authority.[36]
[36] Exhibit R2, Respondent’s tender bundle, pages 34 to 37; Exhibit G1, G-Documents, G3, page 34.
The sentencing remarks are not before the Tribunal because the Respondent was unable to obtain them in time. There is, however, a contemporaneous electronic police file note and a Statement of Facts on Northern Territory Police letterhead setting out the alleged facts giving rise to the charges. These documents provide the context to, and the factual basis of, the offences. The Applicant’s counsel objected to the Statement of Facts being admitted into evidence because the author of the document did not give evidence before the Tribunal. He also objected to police file notes being admitted on the same basis and because their contents had not been put to the Applicant when he gave evidence.
The rules of evidence do not apply in administrative review although they serve as a useful guide. The Tribunal should not fetter its ability to discharge its decision-making function by excluding evidence that is, on its face, relevant and authentic, which the police file note and Statement of Facts both are. Nor should the Tribunal refuse to admit evidence solely on the basis that it was not put to the Applicant when he gave evidence. The Statement of Facts and electronic file note were contained in material that had been produced in response to a summons issued by the Tribunal to the Northern Territory Police and subsequently an order for inspection of those documents was provided to the Applicant on 27 May 2020 well before he made his statement dated 10 June 2020. They are clearly relevant and the Applicant could not have been in any doubt that their contents would form part of the totality of evidence that the Tribunal would use to inform itself. The Applicant had legal representation from one week before the hearing. He had the opportunity to dispute any evidence contained in the Tribunal materials, and he did dispute some of the material in the G-Documents in his written material. The documents are admissible and there is no unfairness to the Applicant in admitting them. Those documents, therefore, form part of the evidence before the Tribunal.
The Statement of Facts[37] indicates the following:
[37]    Exhibit R2, Respondent’s tender bundle, pages 13 to 20.
·     the Applicant was a taxidermist but his business registration was cancelled in November 2015;
·     the Applicant had four firearms registered to him;
·     at around 11pm on Friday, 2 December 2016 the Applicant and three other people set out to hunt and collect wildlife across the Northern Territory with the four guns;
·     the following morning they drove down a dirt road where they located a donkey. The Applicant shot the donkey, cut off its head and left it there to collect at a later time;
·     on Sunday 4 December 2016, they drove into the Uluru – Kata Tjuta National Park which is a Commonwealth Reserve under the Environmental Protection and Biodiversity Conservation Regulations 2000 (Cth) (“EPBCR”). The firearms and ammunition were still inside the vehicle. It is an offence against regulation 12.18 of the EPBCR to possess a firearm in a Commonwealth reserve. The group spent several hours inside the Park;
·     the group then travelled to a place near the Docker River that was under the control of the Petermann Aboriginal Land Trust and requires persons hunting on the land to have permission from the Central Land Council. The group did not have such permission. The Applicant fired several rounds at a group of camels, killing three of them. He removed their heads and put them in bags which he put into the vehicle;
·     the following day, they travelled back to the location where the Applicant had killed the donkey and the Applicant collected the donkey’s head and put it on the roof of the vehicle;
·     at another location, the Applicant shot two Brolgas, two Grebes and one Bustard. He collected the carcasses of the birds, along with two heads of deceased pelicans. Further along the highway the Applicant shot two Wedge Tail Eagles and collected their carcasses. All of these birds are protected species under the Territory Parks and Wildlife Conservation Act 1976 (NT). The Applicant was not authorised to take, interfere with or possess these birds;
·     on the evening of Tuesday, 6 December 2016, police saw the vehicle engaging in spotlighting activity while travelling along the Stuart Highway. Just after midnight police apprehended the vehicle. The police saw a firearm in the rear of the vehicle and questioned the occupants about it. The Applicant admitted that there were four firearms in the vehicle all registered to him. The head of a Brown Falcon was found in the vehicle. The Brown Falcon is also classified as protected wildlife.
·     the Stuart Highway is a public road in accordance with the Firearms Act and Regulations;
·     all four men were taken to the Adelaide River police station, and the Applicant admitted to the offences.
o   in relation to the Brolga, the Applicant said “I wanted it for my stuffing so I shot it”;
o   in relation to the Bustard, he said “My mistake”;
o   in relation to the Wedge Tail Eagles, he said “No, just looked weak and I wanted to Taxiderm the Wedge Tail Eagle”; and
o   in relation to the Grebes, the Applicant said “I thought it was a Brown Duck or Whistle Duck”.

The contemporaneous police file note records the police apprehending the Applicant and his associates and finding the firearms and some of dead animals. In that respect, it is consistent with the Statement of Facts.
The Applicant admitted in his oral evidence that there were four firearms registered to him, that he shot a donkey and cut off its head, and that he shot three camels and cut off their heads.[38] He later said that he was a member of a Facebook group called “Skull Collectors” and “Skulls and Bone Collectors Australia”, which was a forum for trading in those specimens, and that he did not require a permit to trade in donkey heads or camel heads. He said the purpose of the hunting trip was to shoot camels and donkeys.[39]
[38] Transcript, page 9, lines 37 to 38; page 10, lines 15 to 21.
[39] Transcript, page 51, lines 41 to 42 page 52 lines 25 to 26.
Applicant’s request for revocation of the decision to cancel his visa (“revocation request”) the Applicant said, of the offences, “I made the mistake of collecting roadkill wildlife specimens and selling their finished products without holding proper permits.” He failed to mention that several of the birds and animals that he had collected had been shot.[40]
[40] Exhibit G1, G-Documents, G9, page 79.
The Applicant made a statement in this matter in which he said:
“I was convicted for illegal wildlife related charges in November 2016.[41] I received a 10 months (sic) suspended sentence and $1500 fines as punishment. In October 2018, I was convicted for illegal possession and export of prohibited wildlife and received a 23 months (sic) sentence out of which 10 months are suspended. I would like to take full responsibility for my offending and I honestly wish that it had never happened.”[42]
[41] This is incorrect – the offences were committed in December 2016 and he was sentenced in March 2017.
[42] Exhibit A3, Statement of the Applicant, paragraph 4.
[Underlining added]
However, in his evidence to the Tribunal, the Applicant denied that he had shot the birds. The birds were the subject of the seven “take protected animal” charges. Instead, the Applicant said:
“… I would like to just tell - the truth at this time. At least I have to tell, the [Tribunal]. I was there when that happened, and I just took the blame for what happened… Just to protect those people from not getting deported, and avoid them getting into trouble, because they were all refugees. And I just purposely said them (sic), yes, I did. And I took the whole blame. But the real fact is, I didn’t shoot any of those birds…. Because the videos, there is (sic) a few videos in my cell phone. And there is (sic) a few photos in my cell phone. In any of those, I wasn’t there, at all. Because it was all, it was a couple of them. They are the ones who were shooting it and they took the pictures of shooting them. And they are the ones who are holding the birds. And they used my guns, so I took the blame, the whole thing… Because the cops know us very well, out of all the pictures and all the videos. And the Parks and Wildlife know that - have seen all the videos and pictures. So they know very well who shot them.”[43]
[43] Transcript, page 10, lines 23 to 48.
The Applicant later said that there was a video of one of the other people shooting a Wedge Tail Eagle that was sitting next to a pond.[44]
[44] Transcript, page 68, lines 45 to 48.
When it was put to the Applicant that he, as a non-citizen, was in the same position as the refugees he said he was trying to protect, he said:
“That’s right. But still I took the blame because they have more consequences when they get back to their country and they’ll be in a more big danger in case if I put them in (indistinct) situation.”[45]
[45] Transcript, page 53, lines 12 to 15.
When it was put to the Applicant that he had not previously denied shooting the birds, he said:
“…I don’t want to just tell anyone, because of those two people actually there, who shot those birds. They both actually got sent back to Sri Lanka… I was there when it happened, I didn’t stop them doing, because one of them just want, two of them (indistinct) and I didn’t stop them so it’s my whole fault. It’s my gun, and it’s my bullet, and I had to take the blame because I was there. So I’m totally responsible for what happened there. So I took the whole blame. But the police have the video, and the clear pictures of every single thing happened with - for the birds. Because it’s all been recorded in the video, and in the photos… With the dates and the locations and the thing, everything. That’s the only reason why I didn’t get charged for every single thing… And they know very well if they put the charges on me, it can’t be proved because the photos are all shared in the Google pics, and I had all those references in my phone as well…”[46]
[46] Transcript, page 11, line 39 to page 12, line 10.
The Applicant confirmed that he had pleaded guilty to the charges.[47] I am satisfied, based on the Statement of Facts and the Applicant’s oral evidence, that he told the police he shot the seven birds that he was questioned about, which were the subject of the “take protected animal” charges, and that he pleaded guilty to those charges on the basis that he killed them. He now asks the Tribunal to find that he did not shoot those birds.
[47] Ibid, lines 23 to 33.
Counsel for the Applicant submitted that a finding that the Applicant had not shot the birds but had assisted in the shooting of the birds, as he claimed, would be consistent with the guilty verdicts for the “take protected animal” offences. I accept this submission as “take” for the purposes of the offence includes “assist to hunt”.[48] However, the evidence, as a whole, does not support a finding that the Applicant merely assisted. First, the reason the Applicant gave for taking the blame for his friends is implausible. His evidence was that two people shot the birds. He gave evidence that prior to that road trip, he had known one of the people he travelled with for nearly a year and half and he had known the other two for less than two weeks.[49] He also gave evidence that his wife had only agreed to marry him if he intended to live in Australia.[50] His wife was heavily pregnant at the time of the offence (their son was born in January 2017) and their child had been born at the time he was sentenced. Given those circumstances, I do not accept that the Applicant would have risked deportation in order to protect either one or two people who he had known for less than two weeks from facing that risk.
[48] See s66(1) and the definitions of “protected wildlife” and “take” in the Territory Parks and Wildlife Conservation Act 1976 (NT).
[49] Transcript, page 14, lines 32 to 37.
[50] Transcript, page 22, line 45 to page 23, lines 7.
Second, the Applicant did not deny having shot the birds in his revocation request, the lengthy letter that he provided to the Department in February 2020 - which contained denials of other allegations - or the statement he made to the Tribunal in June 2020. The first time he denied shooting the birds was under cross examination in the hearing.
Third, the Applicant, while claiming to have cell phone footage proving that others shot the birds, did not provide that evidence to the Tribunal, and I find it highly implausible that the police and Parks and Wildlife would have sought to have the Applicant held responsible for the shooting of the birds if they had reliable evidence implicating other people and exonerating the Applicant. The police Statement of Facts records the names of the other three people who were involved in the hunting trip and the file note indicates that all four participants, and not just the Applicant, were treated as suspects when they were intercepted. It states:
“… request members continue to hold males to allow time for investigation of Offences against Parks and Wildlife Conservation and Management Act. Vehicle contents and occupants conveyed to Adelaide River Police Station. 0200 TDS BURGOYNE notified – Occupants held on S137”.[51]
[51] Exhibit R2, Respondent’s tender bundle, page 5.
As I have observed, the police file note is on its face authentic. There is nothing controversial in the quoted text and I accept that it is an accurate reflection of the intention of the police who intercepted the Applicant’s vehicle.
I reject the Applicant’s denial that he shot the birds that are the subject of the “take protected animal” convictions. Rather, I am satisfied that he told the police that he shot the birds because that was the truth. I am satisfied that he pleaded guilty to seven charges of “take protected animal” on the basis that he shot those birds. I note that there is no evidence that the Applicant admitted to having killed the Brown Falcon or having been convicted of that, so I am not satisfied that he was involved in the shooting of that bird.
I note that if the Applicant had falsely confessed to those crimes to spare his associates the risk of deportation, that is not, to my mind, a noble or innocent act. On the contrary, it shows a willingness to undermine the administration of criminal justice and the immigration system. Had I accepted the Applicant’s evidence on this subject, it would not have gone in his favour. Nor does the fact that he sought to characterise his role in the shooting of the birds as less than what it was in these proceedings. This is only one instance of the Applicant not being totally honest about his actions[52] and this is of some concern to the Tribunal.
[52] Other instances relate to the time his son spent in India – discussed under Primary Consideration B.
The Applicant admitted that he knew at the time of these offences that it was unlawful to shoot Australian native wildlife.[53] He admitted that he knew it was illegal to go onto Aboriginal lands with a firearm, without a permit.[54] He said he did not know what the “use trap in a reserve” charge related to and denied ever having used a trap or even owning a trap.[55] There is no information in the Statement of Facts about that charge. In the sentencing remarks made in relation to subsequent offences, the sentencing Judge referred to the 2016 offences and said that a forfeiture order had been made “for the forfeiture of the various exhibits, including snares and traps”. I must accept that snares and traps were found and that the Applicant was held responsible for those.[56] However, there is no information before me about what sort, how many, where they were placed, what animals they were intended to catch and what danger they posed in general. On that basis, I am unable to take this offence into account in any meaningful way.
[53]    Transcript, page 12, lines 17 to 19.
[54]    Ibid, lines 30 to 31.
[55]    Transcript, page 53, lines 20 to 21.
[56]    HZCP v Minister for immigration and Border Protection [2019] FCAFC 202.
The 347 “possess protected wildlife” offences arose from a search of the Applicant’s home in which 347 protected birds were found in a freezer.[57] Parks and Wildlife found that three of the birds in the freezer had been shot. The Applicant said he had been given the freezer containing the birds from a customer, he had not checked the contents of the freezer and only saw the top row of birds, and that he did not know any of the birds had been shot.[58] I initially found this to be a strange explanation, but after hearing further evidence form the Applicant about it, I am prepared to accept it.
[57] Transcript, page 13, lines 5 to 31.
[58] Transcript, page 13, lines 18 to 23, and page 66, lines 34 to 40.
The Applicant had permits allowing him to possess protected wildlife until around six months before the offending. He gave evidence that, if he had had a permit, his possession of the 347 protected birds would not have been unlawful. However, he added that a permit would have obligated him to check the birds and report to Parks and Wildlife if any had been shot.[59] Having a permit would not have allowed him to kill protected wildlife.
[59] Transcript, page 66, lines 14 to 18.
The Applicant’s firearms license was taken away because of this offending.[60]
[60] Transcript, page 16, lines 35 to 37.
There is a police file note recording that the Applicant was getting his friend to buy firearms for him after his license had been cancelled.[61] The note is very brief and makes no reference to what the report is based on. There is no evidence that the Applicant was charged in relation to this allegation. I give the contents of this file note no weight.
[61] Exhibit R2, Respondent’s tender bundle, page 25.
In 2018, the Applicant was again caught offending. According to a Statement of Facts prepared by the police[62]:
[62] Ibid, pages 27 to 29.
·on 23 October 2018 Australian Border Force in a joint operation with Parks & Wildlife and Northern Territory Police executed a search warrant at the Applicant’s residence because of reports that the Applicant had been involved in online activity in the exportation of protected wildlife;
·a round of ammunition was found in a cupboard in a bedroom, two rounds of ammunition were found in a box on top of a desk in another bedroom, two rounds of ammunition were found in the floor well of the Applicant’s vehicle and one round was found in the driver’s side door recess; and
·the Applicant admitted that he knew he was unlicensed and not eligible to be in possession of ammunition.
The online activity referred to was listings on eBay for the sale of various specimens including wildlife specimens. The Applicant was caught trying to send two CITES specimens overseas, being a King Colobus Monkey skull and one Red-tailed Cockatoo skull. CITES refers to threatened flora and fauna. He also had prohibited specimens in his possession as set out in the sentencing remarks below. The Applicant was subsequently charged with offences relating to the ammunition and the specimens, and he was granted bail. He was subsequently sentenced, in May 2019, for possess ammunition without permits/licence and fail to meet storage requirements along with the following wildlife offences:
·a person exports a CITES specimen;
·bring protected wildlife into the Northern Territory;
·possess or have under control threatened wildlife;
·prohibited entrant in/out of territory; and
·breach of order suspending sentence.
The Applicant’s suspended sentence was activated and, in addition, the Applicant was sentenced to varying terms of imprisonment for each of the other offences. In aggregate, he was sentenced to 23 months in prison to be suspended after having served 13 months.[63]
[63] This is explained in the sentencing remarks at G4.
The learned sentencing Judge’s remarks[64] included the following observations:
[64] Exhibit G1, G-Documents, G4.
“By your plea of guilty to count 1 in the indictment you admit that on 30 July 2018…you attempted to export a number of CITES specimens, namely a king colobus monkey skull and one red-tailed cockatoo skull.
That offence is a federal offence and carries a maximum penalty of imprisonment for 10 years.
The reference to “CITES” means the Convention on International Trade in Endangered Species of Wild Fauna and Flora.
By your plea of guilty to count 2 you admit that on 20 September 2018 you attempted to take protected wildlife out of the Northern Territory, namely one Straw-Necked Ibis Skull and one Orange-Footed Scrub Fowl skull.
Then, by your plea of guilty to count 3 you admit that on 23 October 2018… you had protected wildlife in your possession or under your control, namely, one pair of Wedge-Tailed Eagle feet, one Burdekin Duck skull, three Magpie Goose skulls, Greater Crested Grebe skin and feathers and one Saltwater Crocodile skull.
Counts 2 and 3 are both Northern Territory offences… They both carry a maximum penalty of imprisonment of 5 years.
You have also pleaded guilty to wildlife charges on complaint… namely charges 5, 6 and 7.
By you (sic) plea of guilty to charge 5 you admit that on or about 27 July 2018, you took out (sic) the Northern Territory a prohibited entrant, namely, a Gaboon Viper skull.
By you (sic) plea of guilty to charge 6 you admit that on or about 20 September 2018 you attempted to take out of the Northern Territory a prohibited entrant, namely a Baboon skull.
By your plea of guilty to charge 7 you admit that on or about 23 October 2018 you had various prohibited entrants in your possession or under your control, namely, seven Wombats skulls, one Eastern Grey Kangaroo skull, one Ocelot skull, one Giant Pouched Rat, three Chipmunk Tails, two Chinese Freshwater Turtles, Hornbill feathers and Ostrich eye rings.
Each of those three offences carries a maximum penalty of imprisonment for 12 months.
…
I want to say something now about your prior criminal record.
You have a number of convictions for relevant prior offending. On 24 March 2017 you were sentenced by the Local Court for a number of offences committed in the period 2 to 7 December 2016.
Your offending comprised one offence of using a trap in a reserve, one offence of discharging a firearm across the road or in a public place, another of discharging a firearm on land without authority, seven counts of taking a protected animal, 347 counts of possession of protected wildlife and 11 counts of the offence described as prohibited entrant in/out of Territory.
An order was made for the forfeiture of the various exhibits, including snares and traps. An order was also made for forfeiture of the rifle you discharged in a public place.
…
It is significant then that your offending in mid to late-2018 took place within the operational period of the suspended sentence imposed by the Local Court in March 2017.
…
On my consideration of the facts, I accept the submission of the prosecutor that you operated a business acquiring and selling wildlife specimens.
Your offending constituted a course of conduct over a significant period of time.
In brief summary, you sourced specimens from overseas contacts or from contacts within Australia. You did some processing to prepare specimens for sale. You advertised your product online or engaged in direct marketing to potential buyers by text. You used the internet to sell specimens and you then dispatched specimens from the Northern Territory to your [purchasers].
The motivation for your offending was clearly commercial.
I want to say something now about the submissions made by counsel on your behalf. Counsel pointed out that there is no evidence that you killed any of the specimens. That may well be true and there is no suggestion otherwise, but the essence of this offending is your participating in the trade of the specimens; whoever might have killed them, whether it was intentional or accidental death inflicted on those creatures.
You told your counsel that the specimens were largely obtained from roadkills or from eBay from overseas. Your operation was said to be small-time commercial one for which you derived income totalling only $898.20.
The Crown prosecutor does not contest that was the amount you received.
However, is it an admitted fact…that in the period [from] 3 July 2017 to 31 July 2018 you listed more than 666 individual specimens for sale, including bird and monkey skulls. The total value of all your eBay listings during that period was just over $69,000.
So although the relatively low amount of your actual income should be viewed in the context of the income that you were trying to obtain from your illicit business activities, your offending was still at a relatively modest level, that the number of specimens the subject of present charges was a mere [fraction] of those which you had in your possession in relation to the charges dealt with by the Local Court in March 2017.
… you perceive yourself to be a conservationist. That perception may reflect part reality but many conservationists would strongly oppose the things which you have done, particularly when it involves repeated breaches of the law.
Moreover, engaging in the trade of a CITES-listed or protected species can encourage persons both overseas and in Australia to hunt those animals and sell the product to the black market. This is a particular concern in relation to species listed as threatened in the appendices to the CITES Convention.
You indicated a plea of guilty at an early opportunity and you that entered pleas of guilty in this court. You made full admissions when you spoke to investigating police officers. Indeed, you have accepted responsibility for your offending, although you still may not appreciate how seriously this kind of offending is regarded by the law.”
[Underlining added]

By way of explanation of the offences relating to animals, the Applicant told the Tribunal that after his first conviction, a job offer had been withdrawn because of the convictions, so he had some financial problems that he tried to solve by selling some specimens. He said he thought he could trade in protected wildlife without a permit if he did it as a broker for parties who did have permits.[65] He thought he would make $800 by selling the CITES skulls to America.[66] A lot of the specimens he listed for sale were legal.[67] He said he sold 400 items including pig skulls, buffalo bones, camel bones, camel skulls and a lot of other birds including native budgerigars which are classified as normal domestic birds so they do not require a permit.[68] He said the number of listings, and the consequent total value of the listings, was greatly inflated because of the way eBay works: when the time for purchasing a listed item expires, eBay automatically renews that listing so it looks like there have been multiple listings for one item.[69] I accept this explanation. Even so, it appears that the Applicant had listed thousands of items on eBay, some of which he had no lawful right to sell or export. In terms of the ammunition offences, the Applicant said those were inadvertent.
[65]    Transcript, page 16, lines 33 to 43.
[66]    Transcript, page 17, lines 1 to 6.
[67]    Transcript, page 19, lines 12 to 20.
[68]    Transcript, page 70, lines 34 to 42.
[69]    Ibid, lines 25 to 32.
The Applicant has been in prison or immigration detention since May 2019.
PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to 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. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
1.The nature and seriousness of the non-citizen’s conduct to date; and
2.The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)…
(c)…
(d)Subject to paragraph (b) above, the sentence imposed by the courts for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)…
(h)…
(i)…
The Applicant shot and dismembered animals in circumstances where it was illegal to do so. These are clearly violent offences. However, he did not do violence to a person, and there is no evidence that his shooting of the donkey, camels and birds was done in an inhumane manner. I am satisfied that these are serious offences but that they are not at the high end of the scale of serious offending.
Imprisonment is normally a sentence of last resort. Despite his minimal criminal history, the Applicant was sentenced to imprisonment for 10 months for the 2016 offences. This is a substantial period that reflects serious offending. Having been given the benefit of a suspended sentence in March 2017, he shortly afterwards commenced, in the words of the sentencing Judge “operating a business acquiring and selling wildlife specimens”.[70] Between July 2017 and July 2018, the Applicant listed multiple specimens – including bird and monkey skulls - for sale on Ebay. In October 2018, also within the operational period of the suspended sentence, he was caught committing the firearms offences. The learned sentencing Judge remarked on this aspect of the offending:
[70] Exhibit G1, s 501 G-Documents, G4, page 38.
“… You started to re-offend so soon after you had obtained the benefit of a fully suspend[ed] sentence in the Local Court in March 2017. I reached the view, reluctantly, but nonetheless I have reached the view that only a sentence of actual imprisonment is appropriate in terms of the sentencing objectives of specific and general deterrence, punishment, and denunciation.”[71]
[71] Ibid, page 39.
The Applicant was sentenced to periods of imprisonment of 14 months for possessing ammunition without a license, 14 months for exporting a CITES specimen, 3 months for bringing protected wildlife into the Northern territory, 4 months for possessing protected wildlife, and 4 months for bringing prohibited entrant in/out of the Northern Territory. The multiple periods of imprisonment indicate serious offending as a whole, and the 14 month periods of imprisonment indicate the seriousness of those particular offences. It is noteworthy that the sentencing Judge ordered those sentences, and the activated sentence of 10 months imprisonment relating to the 2016 offences, to be served in a way that resulted in a total effective sentence of 23 months imprisonment which is a very substantial sentence. The sentences and the manner in which they were ordered to be served indicates serious offending.
The Applicant’s offending was frequent in two respects. First, he committed the second group of offences within two years of committing the first group of offences. Second, each offending episode included multiple offences. Further, the second group of offences were of the same kind as the first, being wildlife and firearms offences. I note there is no discernible trend of increasing seriousness.
The cumulative effect of repeat offending is that protected animals have been killed, and that protected and threatened species have been traded. The Respondent contended that the exploitation of endangered wildlife poses a significant direct threat to the world’s most threatened species, and that wildlife trafficking undermines sustainable development, community safety, and poses related challenges around law enforcement. These contentions are uncontroversial, were not challenged by the Applicant, and the Tribunal accepts them.
I note that the Applicant did not commit offences against women or children, vulnerable persons or government officials in the course of their duty. No person was directly harmed by his offending, the offences largely being offences against the community. I further note that some of the offending conduct would have been lawful had the Applicant held the proper permits and complied with the attached obligations.
I do not consider factors (b), (c) or (g) to (i) of paragraph 13.1.1(1) of the Direction apply to the Applicant’s offending or circumstances.
In totality, paragraph 13.1.1(1) of the Direction weighs moderately against revocation of the reviewable decision.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:
·paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
·paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending.
The Nature of the Harm to Individuals or the Australian Community were the Applicant to Engage in Further Criminal or other Serious Conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
The nature of the harm were the Applicant to engage in further conduct of the kind he has previously engaged in is threefold. First, his irresponsible dealings with firearms and ammunition could result in accidental injury or death, although I accept that this has not happened and the risk is speculative. Second, hunting protected wildlife will result in the injury and death of protected wildlife which damages ecosystems that environmental laws and regulations are designed to protect. Third, trading in protected and threatened species provides incentive and reward for the illegal killing of those species. As the learned sentencing Judge observed, engaging in the trade of a CITES-listed or protected specimen can encourage persons both overseas and in Australia to hunt those animals and sell the product to the black market.
The Likelihood of the Non-Citizen Engaging in Further Criminal or Other Serious Conduct
In the Applicant’s revocation request he explained his offending as follows:
“I got carried away with my passion for taxidermy so I avoided getting proper permits for export and import of wildlife. I sincerely regret the stupid decisions I have made over the last couple of years and putting my family at risk. I have pleaded guilty to the Australian Federal Police when they first came to search my house and I would like to take full responsibility for all mistakes and work on changing my ways and making amends. The major thing I want to concentrate on is living a lawful life.”[72]
[72] Exhibit G1, s 501 G-Documents, G7, page 72.
The Applicant also said:
“I have slipped down to my lowest point now and imprisoned for the first time in life. I have learnt my lesson the hard way and I would never offend again in the future. This time in prison away from my wife and son has been torture and mentally very depressing. I have wasted a year of my life and caused financial hardship for my family. I am going to work on improving my family’s living standards and give my son the best education and future.”[73]
[73] Ibid.
The Applicant claims that people in his community in India are aware that he committed offences and was imprisoned. He said when he got convicted, it showed up in Facebook and the newspaper and now every member of his family knows about it.[74] He said he has dishonoured his family in India and he will be ostracised if he returns to India. The Applicant told the Tribunal that his wife went to India five or six days before he was sentenced but when he was sentenced news started to spread back in his community so she immediately flew back to Australia.[75] He said very few of his friends have visited him in prison because he does not wish to see people as he is ashamed of his offending.[76] He said he stopped attending social functions in the Indian community three years ago because of his offending. The Applicant’s parents remain supportive of him. So are some friends in the Indian community here. His wife visited India in December 2019 to attend a social function[77] well after he was convicted and sentenced. The Applicant appears to be exaggerating the level of stigma that his offending has attracted, but I accept that he does feel a level of shame and social stigma in the Indian community both here and in India.
[74]    Transcript, page 25, lines 1 to 3.
[75]    Transcript, page 49, lines 12 to 15.
[76]    Transcript, page 25, lines 25 to 35.
[77]    Transcript, page 91, lines 37 to 43.
There are numerous letters of support from friends and family attesting to the Applicant’s generosity, willingness to help others and regret over his offending. There was a six month period between his arrest and imprisonment when he had contact with his friends, and he his evidence is that he continues that contact by telephone.[78]
[78] Ibid, lines 37 to 45.
Some of the evidence before me indicates that the Applicant remains unwilling to fully accept responsibility for his offending. However, his oral evidence was peppered with admissions that he had done the wrong thing and expressions of remorse which seemed to be natural and authentic. I accept that he accepts that he did the wrong thing and regrets it.
The Tribunal has the benefit of independent expert evidence about the Applicant’s risk of re-offending. Dr Damien Howard spoke with the Applicant on one occasion by telephone, and he spoke with the Applicant’s wife and two of his friends. He then produced a report, dated 9 June 2020, which was provided to the Tribunal. Dr Howard, being under the impression that the Applicant had merely taken the blame for other people’s offending in 2016, and had not engaged in any offending himself, opined that the Applicant is very keen for the approval of others and that this led him into trouble. I consider that Dr Howard’s ignorance of the Applicant’s true participation in the 2016 offending undermines his opinion that the Applicant was led into the offending because of a need to have the approval of others. It is undesirable and unhelpful when expert witnesses are not given correct and complete information on which to base a diagnosis or risk assessment. It is apparent that some important information about the Applicant and his family was not provided to Dr Howard. Accordingly, the evidence he gave to the Tribunal after being provided with the correct information is therefore of more value than the information in his report.
Dr Howard told the Tribunal that he thinks the Applicant has a form of high functioning autism that is characterised by poor social judgement, risk-taking and impulsiveness. He thinks the Applicant has an obsessive interest in wildlife and a tendency not to think through the full consequences of his actions. When asked if the Applicant’s autism increased his risk of re-offending, Dr Howard said not necessarily. He considered that the Applicant’s imprisonment, and the shame and adversity that his offending had caused to his family, were important factors that lowered the Applicant’s risk of re-offending. He considered that the Applicant’s need for approval from others also lowered the risk. Dr Howard was asked if the Applicant’s autism led him to be obsessive about certain things such as taxidermy and he responded in the affirmative. He was then asked if this increased the risk that the Applicant would re-offend in pursuit of that obsession. He said not necessarily and that “universities and corporations are full of people with high functioning autism who never come before a court”. Dr Howard spoke with two friends of the Applicant who told him that they had discussed the Applicant’s offending with him and were impressed by his contrition and his desire to change.
Overall, Dr Howard assessed the Applicant as having a low risk of re-offending, however this assessment was partly based on a recommendation that the Applicant seek the advice of his wife and his father (in India) on a regular basis to avoid making impulsive poorly-judged decisions. He noted that the Applicant had ignored the advice of his wife in the past because of some self-confessed sexism on his part. That is why Dr Howard recommended that the Applicant’s father be involved (by telephone) in these discussions. Dr Howard reported that the Applicant had told him that he regretted not having listened to his wife and that he was committed to do so in future.[79]
[79] Exhibit A4, Psychological report of Dr Damien Howard, page 11.
Dr Howard impressed me as a knowledgeable and impartial witness. When he was provided with new information, he was prepared to adjust his professional opinion. His evidence was coherent and measured. I placed significant weight on Dr Howard’s evidence. I accept his risk assessment subject to his own qualification, being that the Applicant must regularly seek and accept advice from his father and his wife. The Applicant has not done so in recent years, however I am satisfied that the lengthy term of imprisonment that the Applicant has had to serve, and the impact that it has had on him, will serve as a strong motivator for the Applicant to do what is necessary to avoid re-offending.
I note that, in relation to the 2018 offences, the learned sentencing Judge found that some of them were financially motivated. The Respondent contended that the Applicant may be tempted to offend again if he is in financial need. The Applicant denied this. The Applicant has experience as a chef and a car detailer and he wants to do organic farming.[80] He has offers of employment from two former employers. One employer owns a restaurant. He said he is aware of the Applicant’s offending, he would like to offer the Applicant a job as a chef, and that he is willing to mentor him and guide him so that he concentrates on a respectable career and does not re-offend.[81] The other employer is also aware of the Applicant’s offending and is prepared to offer him a supervisor role in car detailing and cleaning work.[82] I am satisfied that the Applicant is employable, has employment opportunities working for people who will act as protective factors, and that he is unlikely to find himself in dire enough financial need to consider it worth re-offending.
[80]    Transcript, page 20, lines 24 to 30.
[81]    Exhibit A2, Character reference from Selvam Kandasamy.
[82]    Exhibit G1, s 501 G-Documents, G32.
Taking all of the evidence into account, and in particular Dr Howard’s expert opinion, I am satisfied that there is a low risk that the Applicant will re-offend if he is returned to the wider community.
Conclusion: Primary Consideration A
Primary Consideration A weighs moderately in favour of non-revocation.
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
·the nature and duration of the relationship between the child and the non-citizen, noting that less weight should generally be given where there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
·the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the time until the child turns 18, and including any Court order relating to parental access and care arrangements;
·the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
·whether there are other persons who already fulfil a parental role in relation to the child; and
·any known views of the child.

The Applicant has one child (Child A), who is three and a half years old. He has not had an easy life. In December 2018, five months before the Applicant was imprisoned, the Applicant’s wife and Child A went to India. The Applicant’s wife returned to Australia in February 2019, but Child A remained in India until November 2019. There, he was passed between two sets of grandparents and sometimes other relatives. The Applicant’s wife gave evidence that her mother told her Child A used to cry almost every day.[83] Child A is now exhibiting behavioural problems.
[83] Transcript, page 92, lines 17 to 20.
While Child A was in India, he had contact with the Applicant via telephone.[84] In October 2019, the Applicant was transferred to Alice Springs Correctional Centre so his wife was unable to visit him. Child A was still in India at that time. The Applicant was returned to Darwin in December 2019. The Applicant’s wife visited him there every week and brought their son when she could until visits were cancelled because of COVID-19.[85] Therefore, since December 2018, the Applicant’s son has not lived with the Applicant and he was only able to visit him on a regular basis for a few months between December 2019 and March 2020. Less weight may be allocated in the Applicant’s favour in relation to the nature and duration of his relationship with his son given his long absence from Child A’s life and the limited contact that he has had with Child A since his return from India.
[84]    Transcript, page 132, lines 22 to 23.
[85]    Exhibit A3, paragraph 24, Transcript, page 40, lines 13 to 17.
In terms of any negative impact on Child A from the Applicant’s prior conduct or likely future conduct, there is expert evidence from Dr Howard that Child A has suffered psychological harm from being separated from his parents for an extended period of time (see discussion below). Both the Applicant and his wife gave evidence that when their son was in India he typically spent a week or two with one set of grandparents, then a week or two with his other grandparents who live around 250km away, and sometimes he stayed with other relatives.[86] The Applicant took responsibility for deciding to send his wife and son to India and to keep his son in India after his wife returned to Australia. He initially said he did it for financial reasons – that he had legal bills arising from the 2018 prosecution and limited income – however, when probed about this, his reasons seemed to relate more to the impracticality and inconvenience of having his son live with him. He said:
[86] Transcript, page 60, lines 16 to 24; page 91, lines 23 to 33.
“I have to pay my lawyer fees. So I did - once the house lease finished by 2018, November, I went to my friend’s place and I just actually was paying rent to him. Like, $150. And - then for a couple of months. And then I just again, got out of this house. And I was paying $200 every month including everything. Including Internet. Including power. So I was - I was in a very bad financial situation at the time. So I didn’t have any other choice rather than sending them back to India and yes, they suffered a lot back in India. And my wife decided to come back. She asked me a lot of times that she wants to bring my son back. I said, ‘If you bring the son back, yes, I know he is suffering very badly there back in India, but if you bring him here, it’s going to be very hard for me to do the paperwork’…. As I mentioned before, they were struggling a lot when they were in India. That’s why she kept on calling me and said, ‘It doesn’t matter, I will go to Centrelink and I will just manage myself’. And she wants to come back here. I just said, particularly, because I was not sure whether I’m going to get sent to the prison or whether I’m going to get home detention, ‘So you just stay there and just be there.’ But she was having a very hard, difficult time.”[87]
[87] Transcript, page 24, lines 19 to 46.
When questioned further about why he sent his wife and son overseas he said:
“I was really depressed and my mental situation was really bad at the time. I just don’t want to put that same pressure on my wife and my kid, that’s all. I know they’re going to suffer very badly if they’re going to be with me at that time so the best time is to just give them a bit of a break and then get them back once things are better”.[88]
[88] Transcript, page 55, lines 1 to 7.
When asked why he thought it was preferable to keep his son in India while he and his wife were here, he said:
“The main thing is, it’s two people house, it’s a single - is not even a single bedroom, it’s one small dormitory and… That place is full of items with car tools and all those small (indistinct) things and stuff, which is - we lived in basically a small single room for the whole time she was here. So I don’t want to take that risk by keeping my son in there because he won’t be able to run in the same room for the whole day. If we let him out, it’s like a hundred percent - it’s more worse than having a swimming pool with an open gate. So it’s such a very hard area to keep a small kid in there.”[89]
[89] Ibid, line 45 to page 56, line 8.
It is not apparent to the Tribunal why the Applicant and his wife could not have their child in their home and supervised him outside their home as any parent of a two-year-old child would do.
The Applicant’s wife gave a different reason for leaving Child A in India. She said:
“That was… because we were already facing financial issues and I did not have a job at that time and after my husband’s conviction I had to deal with getting a lot of references for him - character references and other issues, so…I was looking for a job when we left my son in India with the care of my parents. Once I got a job immediately in one month he was brought back here, yes.”[90]
[90] Transcript, page 81, lines 10 to 15.
The preponderance of evidence indicates that the Applicant did not recognise or prioritise his son’s emotional and developmental needs. Child A has suffered harm as a result. This limits the weight that can be allocated to this Primary Consideration.
Neither the Applicant nor his wife were initially up-front about the length of time their son spent away from them. In his revocation request the Applicant said:
“I was with him every day and now it has been extremely difficult to manage without seeing him. [Child A] was sent to stay in India with his grandparents for a few months and I was depressed that I couldn’t see him in prison. [Child A] loves me immensely and he asks for me every single day.[91]
[91] Exhibit G1, s 501 G-Documents, G7, page 68
[Underlining added]
In a Statement of Facts, Issues and Contentions (“SFIC”) prepared by the Applicant he said: “[Child A] went on holiday to India for a few months with his grandparents…”[92].
[92] Exhibit A1, Applicant’s SFIC, paragraph 13.
In a statement to the Tribunal the Applicant said “I lived together with my wife and son till I got sentenced and incarcerated in Darwin correctional Centre”.[93]
[93] Exhibit A3, Statement of the Applicant, paragraph 3.
In relation to the impact on his son if he is deported, the Applicant said “[Child A] was born in Australia and it is all he knows”.[94]
[94] Ibid, paragraph 25.
I note that in another part of the Applicant’s statement, he said, “I lived with my wife…and son…except for a period of 5 months when I had to send [them] to India for holiday. I had monetary issues due to high lawyer fees so I sent them both to India”.[95] This is more accurate, however there is a conspicuous absence in this statement of the fact that the Applicant’s son was left in India for a further six months which precluded him from visiting the Applicant in prison during that period.
[95] Ibid, paragraph 21.
In a sworn statement,[96] dated 9 December 2019, the Applicant’s wife said their son lived in India with her parents for “between 8 and 9 months”, returning in October 2019. She said this occurred because she was unemployed when the Applicant was imprisoned.[97]
[96] Exhibit G1, s 501 G-Documents, G10.
[97] Ibid, page 81.
Dr Howard, having spoken with the Applicant and his wife, was unaware, until informed in the hearing, that Child A had been away from both his parents for a prolonged period and that he had been shuttled between relatives.
The narrative put forward in the Applicant’s written material was that Child A’s problems stemmed from being separated from the Applicant due to the Applicant’s imprisonment and that Child A has been having tantrums since the cancellation of prison visits. However, in the course of the hearing a more accurate picture emerged.
The Applicant provided two videos to the Tribunal that were taken by his wife. They each show Child A, to put it colloquially, throwing a tantrum. The Applicant’s wife said that the thing that precipitated his behaviour on both occasions was her taking her phone from him. She said Child A likes to watch videos on her phone, he becomes aggressive when she takes it away from him, and he does not calm down even if she gives the phone back.[98] She said this behaviour happens on a daily basis but it has become more frequent and more aggressive since the COVID restrictions, i.e. it was occurring before prison visits were cancelled. She said after prison visits got cancelled her son would cry himself to sleep and have tantrums. She said before the restrictions, she could take Child A outside and to “shopping malls and stuff like that” but “after the visits got cancelled and the shopping malls, the playgrounds, got closed because of COVID-19 he started showing more aggressive behaviour”.[99] On this basis, I do not accept that Child A’s tantrums were precipitated solely by the cancellation of prison visits, but were pre-existing and escalated because of the closure of various places along with the cancellation of prison visits. The Applicant gave evidence that visits with Child A lasted one hour, which is a significant time for a three year old to have their parent’s attention. It seems natural that the cancellation of the visits had a detrimental impact on Child A, and I accept that this is the case.
[98]    Transcript, page 79, lines 23 to 25.
[99]    Transcript, lines 37 to 40; page 93, lines 25 to 32.
Child A was taken to a psychologist for the first time two weeks before the hearing, and Dr Howard subsequently produced a report for the purposes of these proceedings based on that consultation. Dr Howard is predominantly a treating psychologist. Dr Howard diagnosed adjustment disorder and possible autism. After Dr Howard was informed of the details of Child A’s absence from Australia, he said that the adjustment disorder made more sense. He said that the disruption to Child A’s attachments with the key people in his life, being his parents, was sustained over a longer period of time than he first thought and that it explains Child A’s distress, particularly in the context of Child A’s communication problems which would have made the experience even more difficult for him. Dr Howard said that this makes it even more important that Child A now has continuity in terms of the key people in his life and in his future as part of managing the distress that he has experienced over that long period of time.[100]
[100] Transcript, page 126, lines 27 to 37.
Dr Howard also revised his opinion about who he thought Child A had the closest bond with: in his report he had said Child A’s closest bond was with the Applicant, however having been given the correct information, he thought Child A’s closest bond was with both of his parents and he noted that Child A’s mother is currently present in Child A’s life.[101]
[101] Transcript, page 129, lines 4 to 14.
By the time of the hearing, Dr Howard had seen Child A for a second time. In this consultation, Dr Howard became more convinced that Child A is on the autistic spectrum.[102] He said that a diagnosis would involve a number of professionals including a psychologist, a paediatrician, a paediatric occupational therapist and a speech therapist and would probably take a few months. Dr Howard gave evidence that Child A’s separation from his parents, and the instability during that period, would have had a greater impact on him because children on the autistic spectrum “have a lot of difficulties with change”.[103] He added that people with autism are more vulnerable to experiencing adjustment disorder because they find change more difficult.[104] Dr Howard referred to a need for consistency in the people around Child A, being in the same physical premises, and familiar objects and things. Dr Howard pointed out that autistic people find engagement with the world and people more difficult so the few people they know well become even more important to them. The loss of those people is felt more deeply and causes greater distress.[105]
[102] Transcript, page 122, lines 20 to 25.
[103] Transcript, page 127, lines 23 and 24.
[104] Transcript, page 134, lines 35 to 38.
[105] Transcript, page 129, lines 33 to 38.
Dr Howard asked the Applicant’s wife and two of the Applicant’s friends about how the Applicant used to engage with Child A. Based on those discussions he formed the view that the Applicant engaged with Child A on a consistent basis and that Child A felt comfortable and affirmed with the Applicant (this was obviously up to December 2018).[106] I accept Dr Howard’s opinion in this respect. I am satisfied that when the Applicant lived with Child A he played a positive parental role. I further accept that he continues to do that in a more limited way via phone calls.
[106] Transcript, page 128, lines 33 to 36.
Dr Howard opined that it would be in Child A’s best interests to remain in Australia with both his parents so that the necessary assessments could take place to identify what his needs are, and he can access services to help meet those needs. Dr Howards said he has some knowledge of support systems in developing countries and they are “not great”.[107] I accept that it is in Child A’s best interests to remain in Australia with both his parents living with him.
[107] Transcript, page 130, lines 15 and 16.
Dr Howard was asked about the possibility of the Applicant’s son visiting him in India, in the event that the Applicant is deported. He said the advantage would be Child A seeing his father and the disadvantage would be the dislocation and confusion that would occur at the end of the visits.[108]
[108] Transcript, page 133, lines 29 to 31.
There is not a coherent body of evidence in relation to whether the Applicant’s deportation would necessarily mean that he would be separated from Child A. The Applicant and his wife have family in India.[109] They saw fit to leave their son in India in the care of relatives for nearly a year. They have spent time in India almost every year since moving to Australia.[110] They speak the language and are familiar with the culture. Both sets of grandparents are financially comfortable.
[109] Transcript, page 89, lines 37 to 40.
[110] Exhibit G1, s 501 G-Documents, G58; R2, Respondent’s tender bundle, pages 193 to 194; Transcript, page 43, lines 43 to 44.
In his revocation request, the Applicant said that he and his wife are very much in love, and that if he is deported his wife would have to raise their son as a single mother and it would “hugely” affect her social life and mental health.[111] He also said:
[111] Exhibit G1, s 501 G-Documents, G7, page 66.
“A negative outcome would force my wife to take care of my son all alone or send him to her parents for (sic) few months. They might be forced to return to India to stay with me which I wouldn’t advise because of the chaotic political and economical scenario in India and the least rank (sic) of India in child safety.”[112]
[112] Ibid, page 68.
[Underlining added]
In the hearing the Applicant gave evidence that if he were to be deported, it would be in his son’s best interests to stay in Australia to get a better education and have a better life.[113] He added that in India his wife and child would be dishonoured because of his offending.[114] He said word of his offending reached one of her cousins when he was first imprisoned.[115] However, his wife attended a ceremony for a friend in India in December 2019, several months after the Applicant was imprisoned. (While she was away her mother looked after her son in Australia.)[116]
[113] Transcript, page 58, lines 25 to 29.
[114] Ibid, lines 40 to 43.
[115] Transcript, page 23, lines 35 to 45.
[116] Transcript, page 92, lines 1 to 11.
The Applicant’s wife was equally adamant that she would not return to India. In her statement she said “India is definitely not a place for raising children as it ranks so low on child and women’s safety”.[117] She told the Tribunal that what she meant by this was that children are kidnapped in India and child rape is very common. She said she had been molested by neighbours when she was a child.[118] When asked if it would be easier for her to take care of her son in India where there are two sets of grandparents, she said it would be the other way around because the grandfathers are over 60 and the grandmothers are nearing 60 so she would be taking care of them.[119] I accept that, at some time in the future, the grandparents might need support, but I do not accept that they do now, especially as they were entrusted to care for Child A son for a year and that the Applicant’s wife’s mother looked after Child A by herself in Australia between 9 and 17 December 2019.[120]
[117] Exhibit G1, s 501 G-Documents, G10, page 82.
[118] Transcript, page 92, line 35 to page 93 line 20.
[119] Transcript, page 81, lines 17 to 27.
[120] Exhibit R2, Respondent’s tender bundle, pages 193 to 194; Transcript, page 91, lines 37 to 43.
The Applicant’s wife told the Tribunal that she would stay in Australia because:
“…I do not want [Child A] to miss out on the education and healthcare opportunities that Australia provides and he is an Australian citizen and India does not provide dual citizenship, so if he has to go back to India that has to be done on a visitor visa, so there are a lot of benefits that he won’t be receiving so my son and I will be staying here but I am not looking at separating from my husband or, you know, looking for another proposal, so yes, we will stay married but my son would grow up with a single parent here.”[121]
[121] Transcript, page 80, line 44 to page 81, line 4.
She later said “I do not want him to miss out on the benefits that he gets in Australia because I want the best for my son”[122] and “… I am sure it’s not okay to ask my son to go back because it’s his right to stay here”.[123]
[122] Transcript, page 83, lines 45 to 46.
[123] Transcript, page 84, lines 9 and 10.
It was put to the Applicant’s wife that, if the Applicant was deported, in reality she and her son would live in India. She denied this.[124]
[124] Ibid, lines 16 to 22.
The Applicant gave evidence that there was no problem getting a visa for Child A to stay in India previously and he did not think it would be a problem to get another one.[125] The Applicant’s wife claimed that there would be problems in terms of access to education and other services if Child A did not have Indian citizenship but she did not provide reliable evidence to substantiate this so I am not satisfied that this is the case.[126]
[125] Transcript, page 58, lines 11 to 18.
[126] Transcript, page 82 line 40 to page 83, line 5.
The Applicant claims his wife has lower back pain, is struggling to care for Child A, relies on Centrelink payments, and she would not cope with separation from him.[127] Mr Richard Nuttall, physiotherapist, gave evidence about the Applicant’s wife’s back condition. He said that he is not treating her but that he examined her for the purpose of providing a report. Mr Nuttall concluded that, due to her back condition, the Applicant’s wife is unable to physically care for her son by herself and he advised that she needs another person to assist her in this task.[128] This conclusion took into account the Applicant’s wife’s report that sometimes Child A is uncooperative in public and needs to be picked-up but she is unable to do this. Mr Nuttall said the Applicant’s wife has a bulging disc which can be managed but not fixed. He said she could aggravate this condition by certain movements such as tripping over, bending to pick something up off the floor or lifting an unreliable weight such as a struggling child.[129] He said the condition can be treated with exercises to increase core strength and, as a last resort, surgery.[130]
[127] Exhibit A1, Applicant’s SFIC paragraph 14.
[128] Exhibit A5, Physiotherapist report of Mr Richard Nuttall.
[129] Transcript, page 39, lines 1 to 17.
[130] Ibid, lines 25 to 27.

The Applicant’s wife now has the benefit of Mr Nuttall’s advice and can seek treatment for her back if she so desires. She can also continue to engage with Dr Howard for the purpose of obtaining the diagnosis and treatment that Child A needs. There is therefore significant potential for the Applicant’s wife to take steps to enhance her ability to care for Child A by herself. Despite Mr Nuttall’s opinion that she is not able to look after Child A by herself, the fact is that she has been doing that for the last six months. She gave evidence that her mother has been staying with her since November 2019 but because of her mother’s own health issues she provides very little assistance. She described Child A as being close to her mother, however she said her mother has chronic asthma and she suffers from mild depression sometimes manifesting in suicidal thoughts or crying for hours.[131] Her mother’s assistance is limited to cooking, minding Child A so she can leave the home and occasionally taking Child A to the park across the road.[132] She is not able to take Child A to the shops, walk long distances or lift Child A.[133]
[131] Transcript, page 94, lines 20 to 26.
[132] Transcript, page 80, lines 27 to 28, lines 33 to 35; page 94, lines 31 to 36; page 95, lines 1 to 3.
[133] Transcript, page 94, lines 38 to 45.
Despite her evidence, I do not accept that the Applicant’s wife is committed to remaining in Australia even if the Applicant is deported. She is currently unemployed (although she is employable), she will be a single parent of a child with special needs, and she has a back condition. The Applicant has foreshadowed that his wife may need to send Child A to her parents for a while, which is undesirable in light of Dr Howard’s evidence. I think it is far more realistic that, if the Applicant is deported, he and his wife assess their options. While the Applicant’s wife seems to be preoccupied with her son having access to an Australian education and the benefits of Australian citizenship, and seems less concerned with his current emotional and developmental needs, I think that if it came to the crunch, now that she has the benefit of Dr Howard’s expert opinion, she would choose the option that best meets Child A’s current needs, whether that means staying in Australia without the Applicant or living in India with the Applicant.
Both options involve a negative impact on Child A. Remaining in Australia means he will have access to the support services he needs but he will not have his father physically present in his life on a consistent basis. Despite the Applicant’s past failure to prioritise Child A’s emotional needs (and possibly this is a manifestation of the Applicant’s high functioning autism although there is no evidence on that particular point) I am satisfied that he would play a positive parental role in Child A’s life if he remained in Australia. Given Child A’s age there is a great deal of potential for the Applicant to make a positive contribution to Child A’s life while he is a minor. Child A, of course, already has his mother fulfilling a parental role. The other option, living in India, means that Child A would have the benefit of living with both his parents and having some relatives with whom he is familiar in his life. However, he would not have the same standard of living and access to the same standard of support services that he would have in Australia. Child A is in particular need of psychological and related services at this point in his life and, if he is on the autism spectrum, he will continue to need such services in the foreseeable future. Both options are suboptimal to a roughly equal degree, although they are not terrible.
Conclusion: Primary Consideration B
I am satisfied that it would be in the best interests of the Applicant’s son for the reviewable decision to be revoked. Applying the relevant factors contained in paragraph 13.2(4) of the Direction, I find this consideration carries moderate weight. Primary Consideration B weighs moderately in favour of revocation.
PRIMARY CONSIDERATION C – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration C, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. Moreover, I should proceed on the basis that the Australian community expects that the Australian government can and should cancel a person’s visa if they commit serious crimes. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. I must have due regard to the Government’s views in this respect and any overarching principles in the Direction.
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of the community. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Government’s views in relation to community expectations are to be found in the Direction.[134]
[134] Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
This approach was confirmed recently by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”). In FYBR the Full Court also established that the principles in paragraph 6.3 of the Direction can inform the weight to be attributed to the expectations of the Australian community. The attribution of weight to this consideration is a matter for the relevant decision-maker.
Analysis – Allocation of Weight to this Primary Consideration C
In assessing the weight attributable to Primary Consideration C, it is necessary to have regard to the following matters:
·the Applicant grew up, and completed his tertiary education, in India. He was 24 years old when he moved to Australia in 2008. He has lived in the wider Australian community for 11 years;
·he committed his first offence in 2010, two years after moving here;
·he has committed serious offences relating to protected and endangered wildlife, and he has committed firearms offences;
·he committed his second set of wildlife and ammunition offences when he was subject to a suspended sentence of imprisonment;
·there is a low risk that if he is returned to the wider Australian community he will re-offend and that such re-offending will pose a risk of harm to protected and threatened species;
·he has been employed for much of the time he has been in Australia and he has made a significant contribution to the Australian community through voluntary work which I set out in detail under Other Considerations; and
·his absence from Australia will adversely impact his wife and son. The impact on his son is set out above under Primary Consideration B. The impact on his wife includes emotional, practical and financial hardship.
Conclusion: Primary Consideration C
The Applicant has breached the trust of the Australian community. However, taking all of the relevant factors into account, including his significant contribution to the Australian community, I allocate this Primary Consideration C only a slight measure of weight in favour of non-revocation of the decision under review.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
The Applicant has not claimed to fear harm if returned to India. None of the evidence suggests a risk of harm in those circumstances. This consideration is not relevant to the determination of this application.
(b) Strength, nature and duration of ties
The Applicant has lived in Australia since the age of 24 and he committed his first offence two years later. The offending that is most relevant to this application was committed between eight and ten years after he arrived.
The Applicant has spent the majority of his time in Australia either studying or in gainful employment. In addition to that, he has done extensive voluntary work in his local community. There is ample evidence from members of the community about the Applicant’s employment and voluntary work. The Applicant has done a lot of free catering for functions in the Indian community at the Indian temple. He said the main reason he did that was that a lot of refugees came to the Indian temple.[135] He volunteered with Greening Australia and Parks and Wildlife for a year as part of the conservation land management course that he undertook.[136] For a year and 10 months he volunteered as a snake catcher for Parks and Wildlife. That involved him removing snakes from houses and either releasing them into the wild or, if they were venomous, giving them to Parks and Wildlife.[137] For a period of nearly five years he worked as a volunteer interpreter for refugees, assisting them with letter writing and phone calls.[138] There are numerous letters of support describing the Applicant as a person who helps others. These matters weigh heavily in the Applicant’s favour pursuant to paragraph 14.2(1)(a)(ii) of the Direction.
[135] Transcript, page 45, lines 40 to 47.
[136] Transcript, page 46, lines 5 to 8.
[137] Ibid, lines 9 to 28.
[138] Ibid, lines 30 to 36.
With respect to paragraph 14.2(1)(b), the Applicant has a wife and child in Australia, and he has many friends who were prepared to write him letters of support. I note that it is not the volume of letters that I find persuasive but the content of them: they are largely considered, detailed and candid. These letters show that the Applicant has had a lot of involvement in his local community for many years. He said in the last three years, because of his convictions, he has stayed away from Indian community functions.[139] However, some of the people who provided letters of support were from the Indian community here who continue to support the Applicant. The Applicant gave evidence that he does not want people visiting him in prison because he feels ashamed but that he speaks with friends by telephone and people offer to help his wife in any way they can. I am satisfied that the Applicant has strong familial and social ties to the Australian community. I am satisfied that his wife and child would be negatively impacted in the ways I have previously stated if he is removed from Australia. I allocate a significant measure of weigh because of these factors.
[139] Transcript, page 48, lines 8 to 12.
Overall, I am satisfied that the strength, duration and nature of ties to the Australian community weighs heavily in favour of revocation.
(c) Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. This consideration is not relevant to the determination of this application.
(d) Impact on victims
This Other Consideration (d) requires a decision-maker to assess the impact of a non-revocation decision (i.e. where the Applicant does not get his visa restored to him) upon, inter alia, the Applicant’s victim(s). There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration (d) is therefore neutral.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
In his revocation request the Applicant said:
“India is currently very poor in all major indicators of economic development. The country is moving towards a far right ideology and I have not lived there since 2008. I would find it very hard to adapt to the place and start earning from scratch. I do not want my kid or my wife to live there either because I worked and studied in Australia only for my family to live happily here.”[140]
[140] Exhibit G1, s 501 G-Documents, G7, page 75.
He also said:
“In Indian societies, criminal offences are seen as very shameful deeds and people avoid the offender. Even though I have realised my mistakes, I won’t be accepted in the community functions. My family would face the same fate if I am sent back and they returned to live with me.”[141]
[141] Ibid.
In his statement he said:
“Health: I have no health conditions apart from suffering from tooth fracture in Alice Springs Correctional Centre incident and anxiety issues due to the same. Being made to leave Australia will definitely have an impact on my anxiety and mental health. Staying in prison away from family has already made me extremely depressed and having to leave them permanently would take a toll on my health.
Ties to India: As far as I know, except my parents and my father-in-law, I have no close relatives in India. My wife and I visit them once a year as they are getting old. I do not know what I would do in India without a place to live and work if I am sent there. I have spent all my savings on my Bachelor degree in Australia. A lot has changed in India and I do not know about the social security and health system there.”[142]
[142] Exhibit A3, Statement of the Applicant, paragraphs 34 and 35.
The Applicant comes from a middle-class family. His father owns his own home and a small medical shop, and he is a partner in a pharmacy company.[143] The Applicant’s parents always supported him when he lived in India and they were prepared to look after his son for an extended period.[144] It is therefore likely that they would provide some support, if needed, if he were to return to India. He only left India when he was 24 years old and he has visited India around once every year since moving to Australia. He is familiar with the language and culture. He has tertiary qualifications. He gave evidence that he thought he could get work in India that would generate enough income to live but not to buy a car. When asked if the place where he grew up in India had doctors, dentists and other services he said it did as it was a town but that those things cost money. When the Applicant’s son was in India, both grandfathers took him to a paediatrician concerning his speech problems. The Applicant provided a letter written by that doctor to the Tribunal.[145] Evidently, that service was available. I am satisfied that medical and social services are available in India and that the Applicant could access those.
[143] Transcript, page 21, lines 26 to 36.
[144] Transcript, page 44, lines 10 to 26.
[145] Exhibit G1, s 501 G-Documents, G12.
I am satisfied that the Applicant would be able to establish himself and maintain basic living standards in the context of what is generally available to other Indian citizens if he were returned to India, although his living standard would be lower than it is in Australia.
This Other Consideration (e) weighs slightly in favour of revocation of the reviewable decision.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: not relevant;
(b)strength nature and duration of ties: weighs heavily in favour of revocation;
(c)impact on Australian business interests: not relevant;
(d)impact on victims: neutral; and
(e)extent of impediments if removed: weighs slightly in favour of revocation.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s visa?
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I find as follows:
·Primary Consideration A weighs moderately in favour of non-revocation;
·Primary Consideration B weighs moderately weight in favour of revocation;
·Primary Consideration C weighs slightly in favour of non-revocation; and
·Other Consideration (b) weighs heavily in favour of revocation and Other Consideration (e) weighs slightly in favour of revocation.
This is a very finely balanced decision. None of the Primary Considerations or Other Considerations are determinative in this matter. Application of the Direction favours revocation of the reviewable decision but only just. I find that Primary Consideration B and Other Considerations (b) and (e) combined outweigh Primary Considerations A and C combined.
Accordingly, I am satisfied that there is another reason to revoke the cancellation of the Applicant’s visa.
The decision under review is set aside and substituted so that the discretion in s 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the Applicant’s visa be exercised.

I certify that the preceding 146 (one hundred and forty - six) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy

..............................[SGD]..........................................
Associate
Dated: 30 June 2020
Date of hearing:           15 and 16 June 2020
Counsel for the Applicant:                Mr Nicholas Poynder
Counsel for the Respondent:            Mr Tim Reilly
ANNEXURE A – EXHIBIT REGISTER

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501 G-Documents (pages 1-301)

R

-

29 APR 20

R1

Respondent’s Statement of Facts, Issues and Contentions (pages 1-14)

R

29 MAY 20

31 MAY 20

R2

Respondent’s tender bundle (pages 1-195)

R

-

31 MAY 20

A1

Applicant’s Statement of Facts, Issues and Contentions (pages 1-9)

A

undated

13 MAY 20

A2

Character reference from Selvam Kandasamy (1 page)

A

11 MAY 20

27 MAY 20

A3

Statement of the Applicant (pages 1-9)

A

10 JUN 20

10 JUN 20

16 JUN 20

A4

Psychological report of Dr Damien Howard (pages 1-12)

A

9 JUN 20

9 JUN 20

A5

Physiotherapists report of Mr Richard Nuttall (2 pages)

A

7 JUN 20

9 JUN 20

A6

Statutory Declaration of Applicant’s wife (3 pages)

A

9 DEC 19

9 JUN 20

A7

Video evidence of Applicant’s wife

A

Undated

9 JUN 20

A8

Character reference from Jayrick Ngai (3 pages)

A

8 JUN 20

9 JUN 20

A9

Character reference from Prakash Palanisamv (3 pages)

A

8 JUN 20

9 JUN 20

A10

Character reference from Ramkurmar Konesh (3 pages)

A

8 JUN 20

9 JUN 20

A11

Character reference from Aarthee Prakash (3 pages)

A

8 JUN 20

9 JUN 20

A12

Character reference from Ian Jenkins (3 pages)

A

8 JUN 20

9 JUN 20

A13

Character reference from Rivzi Faroque (3 pages)

A

8 JUN 20

9 JUN 20

[2020] AATA 2048

30 June 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction

Remedies

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (pages 1-301)	R	-	29 APR 20
R1	Respondent’s Statement of Facts, Issues and Contentions (pages 1-14)	R	29 MAY 20	31 MAY 20
R2	Respondent’s tender bundle (pages 1-195)	R	-	31 MAY 20
A1	Applicant’s Statement of Facts, Issues and Contentions (pages 1-9)	A	undated	13 MAY 20
A2	Character reference from Selvam Kandasamy (1 page)	A	11 MAY 20	27 MAY 20
A3	Statement of the Applicant (pages 1-9)	A	10 JUN 20	10 JUN 20 16 JUN 20
A4	Psychological report of Dr Damien Howard (pages 1-12)	A	9 JUN 20	9 JUN 20
A5	Physiotherapists report of Mr Richard Nuttall (2 pages)	A	7 JUN 20	9 JUN 20
A6	Statutory Declaration of Applicant’s wife (3 pages)	A	9 DEC 19	9 JUN 20
A7	Video evidence of Applicant’s wife	A	Undated	9 JUN 20
A8	Character reference from Jayrick Ngai (3 pages)	A	8 JUN 20	9 JUN 20
A9	Character reference from Prakash Palanisamv (3 pages)	A	8 JUN 20	9 JUN 20
A10	Character reference from Ramkurmar Konesh (3 pages)	A	8 JUN 20	9 JUN 20
A11	Character reference from Aarthee Prakash (3 pages)	A	8 JUN 20	9 JUN 20
A12	Character reference from Ian Jenkins (3 pages)	A	8 JUN 20	9 JUN 20
A13	Character reference from Rivzi Faroque (3 pages)	A	8 JUN 20	9 JUN 20