HCYQ and Minister for Immigration and Border Protection (Migration)

HCYQ and Minister for Immigration and Border Protection (Migration) [2017] AATA 1162 (28 July 2017)
Division:GENERAL DIVISION
File Number(s): 2017/2765
Re:HCYQ
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Regina Perton, Member
Date:28 July 2017
Place:Melbourne

The Tribunal affirms the decision under review.
[sgd]........................................................................
Regina Perton, Member
MIGRATION – refusal of bridging visa – character test – criminal record - protection of Australian community - risk to the Australian community should the conduct be repeated –– whether risk of future harm acceptable - exercise of discretion – rejection of applicant’s claim for a bridging visa in association with application for a protection visa - decision under review affirmed
Migration Act 1958 ss 36(2), 499(1), 499(2A), 501(2), 501(6), 501(7)
Direction No. 65 – Visa Refusal and Cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Regina Perton, Member
28 July 2017

HCYQ is a citizen of India. He arrived in Australia on 27 March 2008 on a Student (subclass 573) visa as a member of his wife’s family unit. He has remained in Australia ever since. On 5 May 2011 HCYQ’s student visa expired as his wife had finished her course and he was placed on a bridging visa pending a further decision following an application for residency by his wife. On 18 November 2013 HCYQ was granted a Regional Skilled (subclass 487) visa on the basis of his wife qualifying for that visa category. That visa was cancelled on 14 January 2016 under section 116(1)(e)(ii) of the Migration Act 1958 (the Act) on the basis that his presence in Australia is or may be, or would or might be, a risk to the health or safety of an individual or individuals.
HCYQ served time in prison for family violence and related offences and upon his release from prison, was taken into immigration detention. On 19 September 2016, whilst in detention, HCYQ applied for a bridging visa which was refused as he did not meet the prescribed criteria for its grant.
On 3 February 2017 HCYQ applied for a protection (subclass 866) visa. On 9 February 2017 HCYQ applied for a bridging visa in association with his application for the protection visa. It is that application for the bridging visa that is being considered by the Tribunal.
On 8 March 2017 a delegate of the Minister for Immigration and Border Protection (the Minister) refused the application for a protection visa. HCYQ sought review in the Migration and Refugee Division (MRD) of this Tribunal.
On 6 April 2017 HCYQ was sent a Notice of Intention to Consider Refusal (NOICR) of the bridging visa application on the basis that he did not pass the character test due to the provisions of s 501(6)(a) of the Act. On 8 April 2017 HCYQ provided various documents including character references and a submission to the Minister’s delegate in relation to the impact of his continued detention on his minor children. On 5 May 2017 a delegate refused HCYQ a bridging visa.
On 14 May 2017 HCYQ lodged an application for review with the Tribunal following the refusal of the bridging visa.
On 1 July 2017 a member in the MRD affirmed the delegate’s decision to refuse the application for a protection visa.
The Tribunal held a hearing on 24 July 2017 in Melbourne. The Tribunal received written statements and documents from HCYQ and took oral evidence. A Punjabi interpreter facilitated oral communication with HCYQ who addressed the Tribunal partly in English and partly in Punjabi. The Tribunal also received written statements and took oral evidence from HCYQ’s wife; a Minister of religion with whom he and his wife had regular contact when they were living in Melbourne and from two former neighbours from his Melbourne days.
LEGISLATIVE BACKGROUND
Under s 501(1) of the Act the Minister may refuse to grant a visa if the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that the person passes the character test (s 501(6)).
The character test is set out in s 501(6) of the Act, which provides that a person does not pass the character test if one of a number of grounds in s 501(6)(a) to (d) is met. Section 501(6)(d) of the Act provides:
(d)       in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i)        engage in criminal conduct in Australia; or
(ii)       harass, molest, intimidate or stalk another person in Australia; or
(iii)      vilify a segment of the Australian community; or
(iv)      incite discord in the Australian community or in a segment of that community; or
(v)       represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way; or
…
Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. On 22 December 2014 the Minister issued Direction no. 65 - visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s510C (Direction no. 65) which came into operation on 23 December 2014.
Direction no. 65 provides guidance for decision-makers when making decisions to refuse or cancel a visa under s 501 of the Act, including the exercise of the discretion to decide whether a non-citizen should be permitted to enter or remain in Australia in circumstances where that person does not pass the character test.
Paragraph 6.3 sets out the principles behind Direction no. 65:
6.3 Principles
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian government can and should refuse entry to non-citizens or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.
Paragraph 7 of Direction no. 65 sets out how to exercise the discretion:
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
a) must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
b) must take into account the considerations of Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Paragraph 8 requires decision-makers to take into account the primary and other considerations relevant to the individual case:
(1) Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of the visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations
HCYQ’S CRIMINAL CONVICTIONS
HCYQ’s criminal history in Australia as summarised in a National Police Certificate issued by the Australian Federal Police on 2 May 2017 and confirmed in greater detail in a LEAP-Victoria Police Court Outcomes report dated 6 July 2017 is as follows:

Court

Court Date

Offence

Court Result

Geelong Magistrates Court

10 Feb 2016

Recklessly cause injury

Make threat to kill (2 charges)

Unlawful assault

Contravene fam violence interventn order (7 charges)

Persist contra family violence ntc/order

6 months imprisonment.

base sentence

On each charge:

3 months imprisonment.

concurrent.

3 months imprisonment.

Period to be served part concurrently is 2 months

Aggregate 4 months imprisonment.

period to be served part concurrently is 3 months

Melbourne Magistrates Court

08 Nov 2011

Contra-fam violence interim intervene ord

make threat to kill

intentionally damage property

unlawful assault

unlawfully beat another person

Convicted and a community based order for 12 months.

…

Melbourne County Court

22 August 2011

Contravene fam violence Interventn order

Convicted and fined $1000

…

Sunshine Magistrates Court

25 Feb 2010

Unlawful assault

Convicted and a community based order for 4 months.

to perform 50 hours of unpaid community work over 4 months.

A Case Progress Narrative dated 3 November 2015 in the Victorian police records (as spelled in the original) states:
ON THE 30^TH SEPT 2015 POLICE ATTENDED ADDRESS WITH DHHS WITH REGARDS TO ASSISTING THEM SERVING CUSTODY ORDER. S/T OP WITH REGARDS TO ALEGATIONS THAT ARE REASONS FOR C/O BEING TAKEN OUT. ALEGATIONS THAT AN ANNOYMOUS CALLER HAS STATED THAT AFM SUFFERED BROKEN COLLAR BONE DUE TO ASSAULT, AT FAMILY HOME. THERE HAS ALSO BEEN A LONG HISTORY OF ASSAULTS.
POLICE THEN ATTENDED AT GEELONG MAGISTRATES COURT TO FACILITATE I/ORDER AND ANY OTHER NEEDS FOR AFM. UPON ARRIVAL AFM ALREADY APPLIED FOR I/O.
AFM IN A HIGHLY EMOTIONAL STATE AND AT THIS TIME, POLICE WILL ASK FOR STATEMENT IN THE FOLLOWING WEEK.
AFM HAS LONG HISTORY OF FAMILY VIOLENCE BUT HAS HISTORY OF NOT MAKING COMPLAINTS TO POLICE.
AFM IS ALREADY IN EMERGENCY ACCOMADATION AND CHILDEREN IN SEPARATE ACCOM.
MINERVA ACTIVELY INVOLVED AS THEY WITH DHHS NEED TO LOCATE HOUSING AND CREATE A SAFE ENVIRNMENT FOR AFM, AND THEREFORE WILL BE SAFE FOR CHILDREN.
12 MONTH I/ORDER GRANTED…
…
A Case Progress Narrative dated 4 June 2011 is as follows (as spelled in the original):
VICTIM …IS MARRIED TO ….[HCYQ]. ON THE 25^TH MAY 2011 A FAMILY INCIDENT OCCURRED BETWEEN …[HCYQ] AND THE OTHER MEMBERS OF THE FAMILY BEING HIS WIFE…AND TWO SONS AND…. AS A RESULT OF THIS AN INTERVENTION ORDER HAS BEEN PUT INTO PLACE TO PROTECT THE FAMILY FROM …[HCYQ]. THE ORDER CONTAINS THE USUAL CONDITIONS. HE IS HOWEVER ALLOWED TO SPEAK TO THE CHILDREN VIA TELEPHONE AND SPEAK TO …[his wife] VIA TELEPHONE IN RELATION TO THE CHILDREN. AT AROUND 2345 ON 03/06/2011 …[HCYQ] CONTACTED ….ON HER MOBILE PHONE STATING THAT HE HAD A KNIFE AND HE WAS GOING TO KILL HER. HE SAID “I’M COMING, I’M COMING”. HE WAS ABUSIVE TOWARDS HER CALLING HER A PROSTITUTE AND SOUNDED AS THOUGH HE WAS RUNNING. SHE WAS EXTREMELY FEARFUL FOR HER LIFE AND THE SAFETY OF HER CHILDREN SO SHE TOOK THE FAMILY TO … AND CALLED POLICE…
A Case Progress Narrative dated 28 November 2009 states:
THE RSP AND THE AFM HAVE BEEN MARRIED FOR APPROXIMATELY FOUR YEARS AND HAVE TWO CHILDREN TOGETHER (3Y/O AND 1Y/O) THEY MOVED TO AUSTRALIA FROM INDIA TWO YEASR AGO. AT PRESENT THE AFM’S PARENTS ARE VISITING FROM INDIA. ON THE 28^TH OF NOVEMBER 2009 THE AFM’S PARENTS HAVE BEEN HAVING A VERBAL ARGUMENT. THE AFM HAS TOLD THEM TO STOP FIGHTING. THE RSP DID NOT LIKE THE AFM INTERFERING AND HAS PUNCHED HER IN THE RIGHT EYE, RESULTING IN RED MARKS TO THE AFM’S FACE, POLICE HAVE BEEN CONTACTED AND ARRIVED A SHORT TIME LATER. RSP ACTED IN A CONTROLLING MANNER TOWARDS THE AFM IN POLICE PRESENCE. THERE HAVE BEEN NO PREVIOUS REPORTS TO POLICE HOWEVER THE AFM STATED THAT RSP HAD BEEN VIOLENT TOWARDS HER IN THE PAST IN BOTH AUSTRALIA AND INDIA. AFM VISIBLY SCARED OF RSP/. THIS INCIDENT OCCURRED IN FRONT OF THE COUPLES CHILDREN. AFM’S FATHER WOULD NOT CORROBORATE THE AFM’S STORY – POSSIBLY DUE TO CULTURAL REASONS….
HCYQ told the Tribunal that he had pleaded guilty in February 2016 on the advice of his lawyer who had told him that he would receive a lesser sentence if he did so. He said that he had not deliberately struck his wife but had pushed her and she fell and broke her collarbone. He further told the Tribunal that when the incident occurred, he had been drinking and had asked his wife to go away from the kitchen. He stated that he got angry and pushed her and that he did not know how, but she just fell down. HCYQ’s wife was taken to hospital by ambulance, treated and then allowed to leave. He said that he had not committed some of the offences to which he pleaded guilty. HCYQ provided a Notice of Order Made at Geelong Magistrates Court which stated that he was convicted and sentenced on a charge of Recklessly Cause Injury. The court order stated that the sentence on that charge was a base sentence of six months and that time held in custody of 35 days was reckoned as part of the sentence imposed. The magistrate stated that had HCYQ not pleaded guilty, the sentence would have been 16 months imprisonment with a non-parole period of 10 months.
In a written response to the delegate following receipt of the NOICR in relation to his bridging visa application, HCYQ stated that his offences were accidental domestic violence.
HCYQ’S HISTORY
HCYQ was born in India. He is now in his mid-fifties. He married his current wife in June 2005. The marriage certificate describes him as a divorcee which he confirmed during the hearing. HCYQ is 18 years older than his wife. He and his wife’s first child, a son, was born in India in August 2006. A second son was born in December 2008 in Australia. He has no children from his first marriage. Both of his marriages were arranged through the respective parents.
HCYQ’s father lives in the United States as does his only sister. He told the Tribunal that his mother is deceased. His only brother lives in the United Kingdom.
As indicated earlier, HCYQ was able to enter and remain in Australia on the basis of his wife’s student visa and later her skilled visa.
In India HCYQ worked in his father’s cloth business until his father sold it before migrating to the United States. HCYQ’s sister sponsored her parents’ move. He later undertook administrative work.
HCYQ and his family lived in three places in Melbourne before moving to a regional centre where his wife and children still live.
Victorian police records indicate that HCYQ’s fingerprints appear to match those of a person by a different name who was in Australia in 1985. However, HCYQ vehemently denies that he was in Australia any earlier than 2008 and that he was never known by that name. During the hearing, he stated that he is not sure how his fingerprints match someone else. When asked by the Minister’s advocate why he had not taken any steps with Victoria Police to rectify the fingerprint records if they were in fact incorrect, HCYQ explained that he had not thought to do so previously but that he would undertake to so do in the future.
HOW DO THE PRIMARY AND OTHER CONSIDERATIONS APPLY TO HCYQ?
The three primary considerations are set out in Part B of Direction no. 65:
11 Primary considerations – visa applicants
(1) In deciding whether to refuse a non-citizen’s visa, the following are primary considerations:
a)    Protection of the Australian community from criminal or other serious conduct;
b)    The best interests of minor children in Australia;
c)    Expectations of the Australian Community.
Protection of the Australian community from criminal or other serious conduct
Paragraph 11.1 under Part B of Direction no. 65 states:
(1) When considering the protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision-makers should also give consideration to:
a) The nature and seriousness of the non-citizen's conduct to date; and
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Paragraphs 11.1.1 and 11.1.2 of Direction no. 65 describe a number of principles that must be taken into account in considering the nature and seriousness of the criminal offending or other conduct to date. Pursuant to Paragraph 11.1.1(1):
a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;
HCYQ’s offences have primarily been the infliction of physical violence against his wife. He has also breached apprehended violence / intervention orders that were taken out against him. Those offences have resulted in three court appearances over a six year period. Initially, HCYQ was given community based orders. He received sentences totalling more than twelve months for an attack on his wife in 2015 which included her suffering a broken collar bone and resulted in her seeking assistance in a shelter and an intervention order that was granted and valid for 12 months. The crimes for which HCYQ was convicted include violence against his wife, threatened violence and breaching intervention orders.
As per paragraph 11.1.1(1)(b) of Direction no. 65:
The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

HCYQ’s offences were directed at his wife. The authorities in the detention centre have also provided a record of incidents involving arguments and physical violence in relation to other detainees. HCYQ states that he was the innocent victim in those disputes. He has also claimed that his violence towards his wife was accidental. When it was put to HCYQ during the hearing that there had been three separate acts of violence towards his wife, spanning from 2009, 2011 and 2015, HCYQ maintained that each of those occasions had occurred accidentally.
HCYQ’s wife was, understandably, somewhat reticent in giving details of her evidence with her husband nominating her as a witness and being present during her evidence. However, responding to a question from the Minister’s advocate, she stated that the police records were an accurate description of the events that occurred.
Pursuant to paragraph 11.1.1(1)(c) of Direction no. 65:
Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
Whilst the Tribunal has been provided with descriptions of incidents that took place at the detention centre, the records state that the incidents were minor and there were no charges as a result of those incidents.
Nonetheless, the Minister’s advocate suggested they showed that HCYQ retained violent tendencies. HCYQ disputed the descriptions of the incidents portraying himself as merely wishing to defend himself, particularly in one incident where he swung a pool cue towards another detainee. HCYQ stated that he believed the other detainee was about to attack him with a knife. It turned out that he had some nail clippers either in his hand or pocket.
As per paragraph 11.1.1(1)(d) of Direction no. 65:
d) The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c) is considered to be serious;
HCYQ’s conduct in physically attacking his wife on more than one occasion is serious.
As per paragraph 11.1.1(1)(e) of Direction no. 65:
e) The sentence imposed by the courts for a crime or crimes;
HCYQ was initially given community based orders in relation to the domestic violence he inflicted and his breaches of intervention orders. However, he received custodial sentences in 2016 that amounted to more than 12 months. Some of the sentences were served concurrently or partly concurrently with those given for other offences. HCYQ insisted that he only had an 8 month sentence but section 501(7)(d) of the Act requires the sentences to be added together to determine if a person had sentences totalling 12 months and therefore fails the character test.
As per paragraph 11.1.1(1)(f) of Direction no. 65:
f) The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;
HCYQ was convicted of assaults and a threat to kill his wife. Initially, he received community based orders and was required to attend relevant courses. Notwithstanding two earlier court appearances, HCYQ persisted in physically assaulting his wife and injuring her. The offences appear to have become more violent as the years have passed. HCYQ has persisted in physically attacking his wife despite earlier convictions and attendance at courses as directed by the courts. In the incident that resulted in his imprisonment, HCYQ’s wife suffered a broken collarbone. HCYQ’s offending and interaction with the courts began within two years of his arrival in Australia. Based on the sentences imposed, his ongoing breaches of intervention orders despite being convicted of earlier breaches and his wife’s injuries and seeking help by moving to a refuge, the Tribunal finds that HCYQ’s offending has increased in seriousness.
As per paragraph 11.1.1(1)(g) of Direction no. 65:
g) The cumulative effect of repeated offending;
HCYQ has inflicted harm on his wife on at least three occasions. His wife has been in fear and sought refuge from him. She has taken out intervention orders to prevent him approaching her. Despite undertaking relevant courses following the first two domestic violence offences, HCYQ continued the pattern of inflicting injuries on, and fear in, his wife. In her evidence to the Tribunal, HCYQ’s wife said that she hoped he had reformed but she was not prepared to have him live with her although she wished to have her children grow up with a father not just with her as a single parent. She further told the Tribunal that she believed that it is best for a child’s overall development that there is a father figure present in the child’s life.
As per paragraph 11.1.1(1)(h) of Direction no. 65:
h) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
The Tribunal has received documentation prepared by the Family Violence Unit of a Victorian police station indicating that HCYQ’s fingerprints match those of a person arrested in 1985 on a charge of handling stolen property. That person was an illegal immigrant from India who returned to his home country without the charge being actioned further. HCYQ denies having been in Australia previously or being that person. The Tribunal is not in the position of undertaking further investigations into the matter given the legislative requirement for the matter to be finalised in a very tight timeline.
As per paragraph 11.1.1(1)(i) of Direction no. 65:
i)Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The offences were committed in Australia. Whilst there is a history of domestic violence in the marriage, there is no evidence of any charges in relation to violence towards his wife or others in India.
Conclusion regarding the seriousness of the offences
The Tribunal concludes that the offences are serious.
The risk to the Australian community should HCYQ commit further offences or engage in other serious conduct
Paragraph 11.1.2 of Direction no. 65 states:
(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In addition, decision-makers should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(3) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
…
Taking into account the nature of the convictions for offences involving domestic violence, the Tribunal finds that there would be significant harm to individuals or the Australian community should HCYQ engage in further criminal or other serious conduct, as per paragraph 11.1.2(3)(b) of Direction no. 65 below:
The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence from independent and authoritative sources on the likelihood of the non-citizen reoffending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and
iii. the duration of the intended stay in Australia.
HCYQ stated that he had been a willing participant in courses whilst in prison and immigration detention. He provided copies of Certificates of Completion of courses completed in prison or immigration detention including Release Related Harm Reduction with a completion date of 15 July 2016; a 12 Hour Drug and Alcohol Program completed on 26 August 2016 and a Holyoake Men’s Group Program completed on 3 April 2017.
A Counsellor at the Holyoake Community Alcohol & Drug Service prepared a statement on 28 June 2017 in which he stated that HCYQ has been attending weekly sessions and had completed the 12 week men’s program at the detention centre. He described the topics addressed indicating that the group is predominantly alcohol and drug related with people from varying cultural backgrounds. He went on to state:
… [HCYQ] has conducted himself in an exemplary manner during the program. He has acted as a self-appointed leader, rallying other group members to attend, set up and refurbish the group location.
…
… [HCYQ] has contributed significantly to the group. His narrative is eloquent and complex in describing his experiences leading up to being detained. …[HCYQ] fully acknowledges the role that alcohol has played in his deleterious behaviours although he is impassioned to point out that these behaviours do not define his complete character….
… [HCYQ] demonstrates a determination to make changes in his life related to alcohol use. His devotion to his family cannot be denied….
HCYQ, in his oral evidence, attributed his violence towards his wife to the impact of alcohol on him. He told the Tribunal that he would only drink at home, which began with drinking wine, then progressed to drinking whisky. He stated that what he has learned about alcohol’s impact, physically and mentally, in the courses means he will not return to his old habits if released into the community. HCYQ conceded that he had undertaken earlier courses following his court appearances in 2009 or 2011 but that he had offended again. He told the Tribunal that this occurred because he was still drinking at the time of the second offence. However, he said now things were different and that he had stopped drinking.
A minister of religion with whom HCYQ had dealings over a period of time when he lived in a south eastern suburb of Melbourne supplied a reference and gave oral evidence. He spoke of HCYQ’s and his wife’s involvement in charitable work that his church undertook although they were not members of his faith. He also told the Tribunal that he believed that there was a side to [HCYQ] that is very generous and supportive. He stated that he had had stern conversations with HCYQ about Australian culture and what is acceptable behaviour towards women in Australia. He further stated that he believed that HCYQ was genuine and sincere and that his wife had learned to establish firm boundaries in terms of what is and is not acceptable behaviour towards her by her husband. The minister has maintained some contact with HCYQ’s wife over recent years. While he hoped that HCYQ would probably be fine in the community, he was not prepared to give such any assurances.
Two neighbours from the time HCYQ lived in south eastern Melbourne provided written statements in support and gave oral evidence. Both described what a great neighbour he had been, how he helped them settle in to the area and his generosity in terms of even providing meals for them. Both knew he had been in prison but were unaware of the nature of his offences except in vague terms. For example, one neighbour told the Tribunal that HCYQ had an argument with his wife and was asked to go to a legal facility, revealing a very limited understanding both of the nature of the offences which had been committed by HCYQ against his wife and the sentences which were handed down by the Courts. With respect to any further contact the neighbours had with HCYQ since his imprisonment, they told the Tribunal that although they had both had contact with HCYQ on a couple of occasions after HCYQ and his family moved to another part of Victoria, they had not had any contact since he was imprisoned apart from the requests to provide witness statements.
HCYQ has not spent any time in the community since he committed the 2015 offences for which he was sentenced in early 2016. With regards to HCYQ’s plans for the future if he were to be released into the Australian community, he told the Tribunal that he would work and look after his kids, so that they can be something. He said that he would assist in his children’s extra-curricular activities, such as taking them to swimming lessons. He further stated that his children were growing up without him and that he speaks to them on the telephone 2-3 times per week. Whilst HCYQ is optimistic that his behaviour is altered forever, there has been no opportunity for him to demonstrate that and the Tribunal must therefore consider this sentiment expressed by HCYQ to be aspirational.
On the basis of all the material, including a history of ongoing domestic violence over several years despite court appearances, the Tribunal finds that there is a risk of re-offending. This criterion weighs in favour of refusing the visa on character grounds.
Best interests of minor children in Australia affected by the decision
HCYQ has two primary school-aged children in Australia. He stated that he speaks to them by telephone two to three times per week. He provided copies of drawings and cards that they sent him expressing their wish to be together. He said that sometimes the children are distracted when he talks to them but they do speak to him when he calls.
HCYQ’s wife expressed the wish that the children could continue to interact with their father and stressed the importance of a father’s role. Whilst she did not wish to resume a marital relationship or live with HCYQ (telling the Tribunal it was not acceptable at the moment that he would come and live with her), she said that she wanted him to stay in Australia and spend time with the children. She suggested that the children would speak to him on a weekly basis. It was she who brought the drawings and pictures to HCYQ that her children had done when he was in prison. She has not sent anything since then although she had considered taking them to visit their father. HCYQ said that he did not want the children to visit him in prison or the detention centre because he did not want them to see him in that environment.
HCYQ’s wife is experiencing financial constraints in raising her children as a single parent. A financial contribution from him towards the children’s upkeep would be welcome. HCYQ has stated that his previous employer would welcome him back given his willingness to undertake work that requires strength and endurance.
Whilst there is and has been some positive interaction with their father, the children have also seen and experienced the results of their mother having suffered physical injuries and fear at the hands of their father. Their mother told the Tribunal that she has explained to the children where their father is and why.
On balance, the Tribunal is satisfied that it is in the best interests of the children for them to have their father with them in Australia. This primary criterion weighs in favour of not refusing the visa.
Expectations of the Australian Community
As has been pointed out in Direction no. 65, the Australian community would expect a person who has committed violent offences towards his wife over a period of several years to be refused a bridging visa, particularly where his wife has had to resort to taking out intervention orders against him due to family violence and fleeing the family home.
Over recent years, state and federal authorities and the community in general have expressed concern, and indeed outrage, over the infliction of family violence.
HCYQ suggested that his behaviour was due solely to his indulgence of alcohol and that would not happen in the future. However, he has had a pattern of inflicting family violence with offences committed fairly soon after his arrival in Australia. Despite convictions in 2009 and 2011, he continued the same patterns until he was imprisoned for his offences. The Tribunal notes that the Minister’s advocate referred to violent incidents involving HCYQ that occurred in the detention centre despite HCYQ not consuming alcohol. As stated earlier, HCYQ stated that his actions were in self-defence.
The Tribunal finds that this criterion weighs in favour of refusing the visa.
Other considerations – visa applicants
Paragraph 12(1) of Direction no.65 sets out other considerations that must be taken into account where relevant. The considerations include but are not limited to:
a)International non-refoulement obligations;
b)Impact on family members;
c)Impact on victims;
d)Impact on Australian business interests.
HCYQ applied for a protection visa which was rejected by a delegate of the Minister and affirmed by the MRD. The MRD did not accept the claims made by HCYQ. The MRD had concerns about HCYQ’s credibility and, further, did not accept that there was a real chance that HCYQ would face serious harm from those he claimed to be of adverse interest to if he returned to India. The MRD determined that it was not satisfied that Australia had protection obligations towards HCYQ under s 36(2) of the Act.
HCYQ stated that if he returned to India, he would be unable to provide the same level of financial support for his family. In his application for the bridging visa, he cited difficulties he had experienced with police in the state in which he lived prior to coming to Australia and that he feared he might face if forced to return. The Tribunal is not reassessing his claims to a protection visa, but only his eligibility for a bridging visa. The Tribunal notes that HCYQ is not required to return to that part of India in which he previously lived if he is forced to return to his country of citizenship. The Tribunal is of the view that there are no international non-refoulement obligations in relation to the bridging visa refusal.
HCYQ’s only family members in Australia are his children and his estranged wife. There will be an impact on them if he remains in immigration detention but there is a risk of future harm, particularly to his wife, if HCYQ is released. HCYQ’s wife has given evidence that if he were released, she was happy to have HCYQ occasionally see his sons but would not allow him to pick them up from home. That would appear to reinforce concerns she would have about his behaviour.
During the hearing, HCYQ stated that he speaks with his wife on the telephone approximately 10 times per day. He said that his wife rings him to make sure that he is taking his blood pressure tablets. He further stated that the calls range from 2 to 10 minutes in length, and the general conversation topics including talking about their children and other day-to-day activities. HCYQ’s wife, who had been excluded from the hearing room whilst HCYQ gave evidence, gave a considerably lower estimate of the number of telephone calls.
Both HCYQ and his wife spoke of the financial constraints that she and the children were facing and how much better off financially they would be if he could stay in Australia.
There is evidence on the ongoing impact on the victims with his convictions, a record of his wife’s injuries and the grant of intervention orders to prevent contact with HCYQ.
There does not appear to be any significant impact on Australian business interests if HCYQ is refused a bridging visa. He described his occupation as a process worker.
CONCLUSION

The primary consideration regarding protection of the Australian community from criminal or other serious conduct, which weighs in favour of refusal of the visa, should be given greater weight given the nature of the conduct and the lengthy period over which the offences occurred. The expectations of members of the Australian community, as described in Direction no. 65, would also lead to refusal of the visa given the violent behaviour exhibited by HCYQ, on repeat occasions over a period of years.
On the other hand, the primary consideration regarding HCYQ’s ties to his children and their rights to be with their parent, which weighs against refusal of the visa, should also be given significant weight. However, whilst the rights of the children are very important, their mother should not have to fear or experience violence.
The Minister’s advocate, in his submissions, stressed, amongst other things, HCYQ’s apparent disregard of authority and lack of expressed remorse, maintaining that his offences were accidental and/or in ignorance of the impact of breaching intervention orders. He also submitted that there are no strong or compassionate reasons to grant the visa noting it is a short-stay visa dependent on the HCYQ’s application for review against the delegate’s decision to refuse him a protection visa. That review decision has now been made with the decision to affirm the decision to refuse HCYQ a protection visa, although for different reasons to the delegate. HCYQ has now indicated he will appeal the decision to the Federal Court although he has not yet identified a basis for doing so.
The balancing act in cases where there are minor children involved is always somewhat difficult. However, the outcome will ultimately be determined in accordance with the Tribunal's obligation, pursuant to Direction no. 65, to make a finding as to whether the risk of HCYQ causing future harm to members of the Australian community is unacceptable. The Tribunal finds that it would be unacceptable.
The Tribunal notes that this is a temporary visa that does not allow HCYQ to stay in Australia indefinitely. He has applied for a protection visa which has been refused by the Minister’s delegate and by the MRD. HCYQ has indicated that he will lodge an appeal in the Federal Court in relation to the refusal of the protection visa but has not done so as yet. He stated that he only became aware that the MRD had refused his application for review when it was sent to him by the Minister’s legal representatives on 19 July 2017, despite the decision being made a few weeks earlier.
Having regard in particular, to the principles referred to in Direction no. 65 and the findings made in relation to those principles, the Tribunal concludes, that the preferable decision in this case is that the application for the bridging visa be refused.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 75 (seventy-five) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member

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

Associate

Dated: 28 July 2017

Date of hearing: 24 July 2017

Applicant:

In person

Advocate for the Respondent:

Mr Adam Cunynghame

Solicitors for the Respondent:

Sparke Helmore

[2017] AATA 1162

28 July 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies

*Court*	*Court Date*	*Offence*	*Court Result*
Geelong Magistrates Court	10 Feb 2016	Recklessly cause injury Make threat to kill (2 charges) Unlawful assault Contravene fam violence interventn order (7 charges) Persist contra family violence ntc/order	6 months imprisonment. base sentence On each charge: 3 months imprisonment. concurrent. 3 months imprisonment. Period to be served part concurrently is 2 months Aggregate 4 months imprisonment. period to be served part concurrently is 3 months
Melbourne Magistrates Court	08 Nov 2011	Contra-fam violence interim intervene ord make threat to kill intentionally damage property unlawful assault unlawfully beat another person	Convicted and a community based order for 12 months. …
Melbourne County Court	22 August 2011	Contravene fam violence Interventn order	Convicted and fined $1000 …
Sunshine Magistrates Court	25 Feb 2010	Unlawful assault	Convicted and a community based order for 4 months. to perform 50 hours of unpaid community work over 4 months.