Kaur and Minister for Immigration and Border Protection (Migration)

[2018] AATA 3470

Kaur and Minister for Immigration and Border Protection (Migration) [2018] AATA 3470 (17 September 2018)

Division:GENERAL DIVISION

File Number(s):      2017/3283

Re:Jasvir Kaur

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Ms Anna Burke, Member

Date:17 September 2018

Place:Melbourne

The Tribunal affirms the decision of the Respondent dated 7 April 2017 to refuse the applicant’s application for a Partner (Provisional) (Class UF) visa under s 501(1) of the Migration Act1958.

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

Ms Anna Burke, Member

Catchwords

MIGRATION – visa refusal – applicant is a citizen of the India – applicant applied for a Partner (Provisional) (Class UF) Visa – applicant does not pass character test in s 501(6) of the Migration Act 1958 – applicant not of good character on account of criminal conduct – whether discretion to refuse visa should be exercised – severely disabled dependent child – community expectations – significant period of time since offending – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975

Migration Act 1958

Cases

David John Cawdell Irving v Minister of State for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Re Britos and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1282
Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

Wan v Minister for Immigration & Multicultural Affairs [2001] FCA 568

Secondary Materials

Minister for Immigration and Border Protection (Cth), Ministerial Direction No 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a Visa under s 501 CA, 22 December 2014

REASONS FOR DECISION

Ms Anna Burke, Member
17 September 2018

INTRODUCTION

1. Ms Jasvir Kaur (the applicant) is seeking to review a decision by a delegate of the Minister for Immigration and Border Protection (the Minister) to refuse her husband, Mr Charnjit Singh, a Partner Visa on the grounds he does not pass the character test.

2. On 21 December 2016 a delegate of the Minister issued a notice of intention to consider refusal to grant Mr Charnjit Singh a Partner (Provisional) (Class UF) Visa under s 501(1) of the Migration Act 1958 (the Act). On 19 January 2017 Mr Singh provided a response to the notice.

3. On 7 April 2017 a delegate of the Minister made a decision to refuse Mr Singh’s application for a visa under s 501(1) of the Act. Notice of this decision was provided to Mr Singh and Ms Jasvir Kaur on 7 April 2017 via email. The delegate found that Mr Singh did not pass the character test, as set out in s 501(6) of the Act. In particular, the delegate found that Mr Singh failed to meet s 501(6)(a) of the Act, as he had a substantial criminal record (as defined by s 501(7)). The delegate found that there were no sufficient countervailing considerations in Mr Singh’s case to warrant the Australian community accepting any level of risk. The delegate decided to exercise the discretion to refuse the visa. In accordance with s 501(1) of the Act, the consequence of this decision was that Mr Singh’s application for a Partner (Provisional) (Class UF) Visa was refused.

4. On 5 June 2017 the Administrative Appeals Tribunal (the Tribunal) received an application from Ms Jasvir Kaur, Mr Singh’s wife and sponsor, lodged under s 500(1)(b) of the Act. Ms Kaur sought review of the decision to refuse to grant her husband’s visa. At the hearing of this application on 19 and 20 June 2018, Ms Kaur was represented by Mr Christopher Livingston of Christopher Livingston & Associates. Mr Adam Cunynghame of Sparke Helmore appeared for the Minister. The Tribunal was assisted by interpreters in the Punjabi language. The Minister lodged a set of paginated documents

   
   

   (the G-Documents) and the Applicant provided the Tribunal with a number of written statements. The following witnesses provided evidence under oath or affirmation: Jasvir Kaur, Hatice Kurtoglu, Paramjit Mehmi, Jaspreet Singh, Dr Gayle Troedson, Dr Peter Forrest, Harjot Gill, Shireen Kaur, Kanwal Singh, Charanjit Singh, Gurjit Singh and Naresh Pal Singh.

   BACKGROUND

5. Mr Singh is a 57-year-old Indian national who worked on the family farm prior to arriving in Australia on a Visitor visa on 27 October 1988. He left Australia voluntarily on 15 August 1997, following release from prison after serving 4 years and 5 months imprisonment. The crimes which led to his imprisonment and his migration history are detailed below. He met his wife, Jasvir Kaur, in Melbourne in 1992. She travelled to India where in March 1998 they were married. In November 1998 their first child was born in Melbourne and in June 2001 their second child was born in India.

6. Since his return to India Mr Singh has worked on his family farm, been employed as a general farm hand on other properties and undertaken voluntary work through the local temple. He claims not to have worked in Australia during 1996 – 1997, between his release from prison and his departure from this country.

7. Mr Singh has an extensive migration history as outlined below:

   ·On 27 August  1988,  at the age of 27, he arrived on a Visitor visa and overstayed his visa;

   ·On 10 October 1994, 1 December 1994 and 15 August 1997, he was granted bridging E visas;

   ·On 25 May 1990 he applied for a protection visa;

   ·On 2 March 1993 his application for a protection visa was refused;

   ·On 5 February 2003 he lodged an application for a Spouse (provisional) (Subclass 309) visa;

   ·On 25 May 2004 the Minister’s delegate refused to grant him a visa  on character grounds;

   ·On 12 May 2005 the Administrative Appeals Tribunal affirmed the decision  not to grant him a visa;

   ·On 19 May 2006 the  Full Court of the Federal Court of Australia found in favour of the Minister, affirming the Tribunal’s decision to refuse to grant the visa on character grounds; and

   ·On 2 June 2015 he lodged the current visa application for migration to Australia.

   ISSUES

8. There are two central issues before the Tribunal in this application for review:

   ·does Mr Singh pass the character test in s 501(6) of the Act; and

   ·if Mr Singh does not pass the character test, should the Tribunal exercise its discretion to not refuse the visa?

   LEGISLATIVE FRAMEWORK

9. Section 501(1) of the Act gives the Minister the power to refuse to grant a visa if a visa applicant is unable to satisfy the Minister that he or she passes the character test. The term character test is defined in s 501(6) of the Act. Relevantly for this matter, ss 501(6) and (7) provide that:

   (6) For the purposes of this section, a person does not pass the character test if:

   (a)  the person has a substantial criminal record (as defined by subsection (7)); or …

   (7) For the purposes of the character test, a person has a substantial criminal record if:

   …

   (c)  the person has been sentenced to a term of imprisonment of 12 months or more;

   … 

10. If a person is found not to pass the character test, the discretion to refuse the visa must be considered. Under s 499(1) of the Act, the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. A person or body having those functions or powers, including the Tribunal, must comply with any relevant direction (s 499(2A) of the Act; see also Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591, per Katz J). Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction) is a direction made under s 499 of the Act and provides a guide for decision-makers performing functions or exercising powers under s 501 of the Act (paragraph 6.1(4) of the Direction).

11. Paragraph 6.1 of the Direction outlines the objectives of the Act and the Direction, stating in part:

    (1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

    (2) Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.

    …

12. Paragraph 6.2 of the Direction sets out General Guidance relating to the Government’s intent:

    (1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

    …

    (3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501… The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B…

13. The principles referred to in the General Guidance (and reproduced below) constitute a framework within which decision-makers apply the considerations in Part A, B, or C of the Direction (paragraph 6.3):

    (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 a 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.

14. In deciding whether to exercise the discretion to refuse to grant a visa, the Tribunal should have regard to the primary and other considerations in PART B of the Direction. Paragraph 11(1) of the Direction provides that the primary considerations are:

    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.

15. Paragraph 12(1) provides that the other considerations that must be taken into account, where relevant, 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.

16. Paragraph 8(4) of the Direction states that primary considerations should generally be given more weight than the other considerations. Paragraph 8(5) states that one or more primary considerations may outweigh other primary considerations.

    EVIDENCE

    Mr Singh’s criminal offending

17. The following table has been derived from records against Mr Singh as outlined in a National Police Certificate of 21 June 2016:

18.     COURT	19.     COURT DATE	20.     OFFENCE	21.     COURT RESULT
District Court of South Australia	22.     23 May 1994	23.     Assault Occasioning Actual Bodily Harm	24.     Convicted  12 months imprisonment cumulative
25.     Supreme Court of South Australia	26.     1 March 1993	27.     Rape Rape (2 charges) 28.      29.     Assault Occasioning Actual Bodily Harm	30.     6 years imprisonment concurrent 31.     5 years imprisonment concurrent 32.     2 years imprisonment cumulative 33.     Head sentence: 8 years imprisonment
34.     Walkerie Court of Summary Jurisdiction 35.	36.     18 December 1992	37.     Drive Under the Influence	38.     Convicted fined $700. Drivers licence disqualification 12 months

1. In December 1991 Mr Singh and three male companions were drinking heavily at the Renmark Hotel in South Australia. Also present was a 15-year-old girl who they had been supplying liquor. Later that evening, Mr Singh, his three companions and the girl were in a car on the bank of the River Murray. Mr Singh got into the rear of the car where the girl was seated. He grabbed her arm and slapped her on the cheek. She screamed out for help more than once and was crying. Mr Singh told her to take her clothes off. He threatened to kill her and hit her on the back of the head.

2. Mr Singh was subsequently found guilty of three counts of rape and one count of assault occasioning actual bodily harm. His Honour Justice Bollen described the offence as very serious conduct in his sentencing remarks:

   Each of you was, on one count, the person who performed the act of rape. On each of the other three counts, three of you encourage the one who was performing the act of rape.

   You Charnjit Singh stand convicted, too, of assault occasioning actual bodily harm. You Charnjit Singh, beat the girl into submission.

   …

   The girl was hurt by your blows, Charnjit. She suffered distress from the experience of multiple rapes in the presence of those encouraging the perpetrator. This was very serious conduct.

   The only sentence appropriate for each of you is imprisonment actually to be served.

   …

   Charnjit Singh your criminality was the worst. You assaulted the girl and then raped her…

3. In February 1993 Mr Singh was in the company of two other males and there was an argument between the two other males about money owed. Later on that same day Mr Singh, with the two men involved in the argument and another man, travelled by car to a location where they consumed alcohol. They then drove to another location. At the second location the victim, who have been involved in the argument about money owed was taken from the car and was advised “we are not going to let you go today: we are going to kill you.” Mr Singh, whilst not the instigator in this matter, did inflict a number of blows on the victim with a hockey stick and what was described as a rod, leaving the victim with a black eye, grazes to his nose, multiple bruises to his back, arms, buttocks, shins and ankles. At his trial Mr Singh denied being involved in any attack but was found guilty by the jury and was sent to 12 months imprisonment cumulative with the sentences for the earlier offences.

   THE CHARACTER TEST

4. Mr Singh has conceded that he does not pass the character test for the purpose of s 501(1), as defined in ss 501(6), because he has a substantial criminal record, being a term of imprisonment of 12 months or more (s 501(7)). The Tribunal finds that he does not pass the character test.

   THE DISCRETION

5. As it has been found Mr Singh does not pass the character test, the Tribunal must consider whether it should exercise the discretion to refuse to grant the visa under

   
   

   s 501(1) of the Act.

6. The Minister issued Direction 65 under s 499 of the Act which sets out the considerations to be applied by the decision maker when exercising powers under s 501 of the Act. The General Principle of Direction 65 states 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. The Tribunal must have regard to the relevant primary and other considerations within Part B of the Direction.

7. Decision makers must take into account the primary and other considerations relevant to the individual case. Generally, primary considerations should be given greater weight than other considerations and one or more primary considerations may outweigh other primary considerations.

   PRIMARY CONSIDERATIONS

   Protection of the Australian Community

8. Paragraph 11.1 of the Direction provides that:

   (1) When considering 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.

   Nature and seriousness of the conduct

9. Paragraph 11.1.1 of the Direction relevantly states that:

   (1) In considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date, decision-makers must have regard to:

   a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;

   b) The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled)… are serious;

   c) The sentence imposed by the courts for a crime or crimes;

   d) The principle that any conduct that forms the basis for a finding that the non-citizen does not pass a subjective limb of the character test is or is not of good character under s 501(6)(c), is considered to be serious;

   e) The sentence imposed by the courts for a crime or crimes;

   f) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

   g) The cumulative effect of repeated offending;

   h) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

   …

10. Mr Livingston did not dispute that Mr Singh’s offending conduct was violent, of a sexual nature and committed against a vulnerable member of the community. Mr Livingston argued that notwithstanding the serious criminal conduct and the imposition of multiple terms of imprisonment upon Mr Singh, for all intents and purposes, he has been rehabilitated and no longer poses a risk to the Australian community.

1. The respondent contended that the Australian community expects that the Australian government can and should refuse entry to non-citizens if they commit serious crimes in Australia. Further, if the non-citizen has committed a serious crime, including one of a violent or sexual nature, he or she should generally be denied the privilege of coming to Australia. The respondent argued that this factor weighed most strongly against Mr Singh being granted a visa to return to Australia.

2. The respondent contended that Mr Singh’s offences of rape and assault occasioning bodily harm are violent and sexual crimes, and would be viewed very seriously by the Australian community, particularly when the community was apprised of the fact they were committed against a vulnerable 15-year-old girl. The respondent argued the seriousness of this crime was confirmed by Mr Singh during his testimony at the Tribunal hearing where he gave evidence that he forcibly beat the girl into submission and watched as his co-offenders raped her.

3. The respondent further contended that the seriousness of this crime was reflected by the sentence imposed by the courts on Mr Singh, as a first-time offender, of eight years imprisonment.

4. In his sentencing remarks  Justice Bollen stated:

   There must be imprisonment actually to be served for all of you to mark the gravity of the offences, and to deter others for offending in the same way. I will assume that none of you will offend again in this way.

   Young girls must be protected. This girl was subjected to brutality and humiliating treatment. There are no mitigating factors in or about the commission of any of the offences.

   The fact that there are no mitigating factors makes it the more necessary for me to strive the harder to fix the least penalty that will suffice.

5. Mr Livingston referred the Tribunal to the case of David John Cawdell Irving v Minister of State for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 where the court stated:

   The question whether a person is or is not of "good character" is primarily an issue of fact. It is not the function of this Court to form its own view of such a fact. Provided that the decision-maker has approached the issue correctly, has acted in accordance with the principles of procedural fairness, has taken into account all material factors, has disregarded immaterial factors and has reached a decision which was open on the material, which is to say that the decision made was not one which no reasonable decision-maker would have made, then this Court will not grant an order of review. The Administrative Decisions (Judicial Review) Act 1977 (Cth) confers on the Court not the function of reviewing decisions on their merits, but the function of correcting those errors which may loosely be described as errors of law, that is to say errors which offend the legal principles laid down for administrative decision-making.

   9. It should also be observed that the term "good character" is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. In another sense, it refers to the individual's reputation or repute. See Oxford English Dictionary, meanings 11, 12 and 13; The Macquarie Dictionary meanings 1, 2, 3, 4 and 5. Necessarily, when decisions are made in Australia under the Act in relation to persons who are overseas, greater attention tends to be given to objective facts and to reputation or repute rather than to a detailed analysis of the person's inherent qualities. I do not suggest that, in the context, "good character" refers to reputation and repute as such. It does not. But criminal convictions or the absence of them and character references are likely to be an important source of primary information. If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant. If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.

6. Mr Livingston duly acknowledged Mr Singh’s offending conduct was very serious. However, Mr Livingston argued that the effluxion of time (a significant amount of time having passed since the offence was committed), the evidence of good behaviour, contrition and remorse should also be relevant to this consideration.

7. As both parties agree Mr Singh’s offending was of a serious nature, the question before the Tribunal is whether Mr Singh is now of good character, as his offending was over 25 years ago. Simply put, is the effluxion of time sufficient to mitigate against the serious nature of his crime?

8. Mr Singh’s offences were of a violent and sexual nature. The first was perpetrated against a vulnerable member of the community, a 15-year-old girl. The second was a senseless attack against another individual he apparently had no complaint against.  As indicated by the sentences imposed by the courts, Mr Singh’s crimes were of a very serious nature. The Tribunal finds that the effluxion (significant passage) of time and evidence of good behaviour does not mitigate against the serious and violent nature of Mr Singh’s offending. This factor therefore weighs against Mr Singh.

   Risk to the Australian community

9. Paragraph 11.1.2 of the Direction provides that:

   (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 likelihood 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

   b) 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 any 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.

   (4) Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.

10. Mr Livingston argued that Mr Singh had not engaged in any criminal conduct prior to 1991 or after his offending in 1993. He further argued that a period of in excess of 25 years is capable of raising an inference that Mr Singh is now a law-abiding person; and the likelihood of Mr Singh reoffending, if any, is at the lower end of the scale. In support of this proposition,  Mr Livingston cited the parole officer’s report of 5 June 1997, which stated:

    Mr Singh’s behaviour in prison since his admission in early 1993 has been excellent. He progressed from F division in Yatala to Mount Gambier and is presently settled at Northfield where he is involved in work release as a volunteer for the Salvation Army.

11. The respondent contended that although Mr Singh’s likelihood of reoffending is low, some conduct is so serious and the harm it would create so severe that any likelihood that it may be repeated is unacceptable.

12. The respondent argued that alcohol consumption had been a contributing factor in Mr Singh’s offences, as evidenced in the parole conditions placed on Mr Singh:

    Parole conditions appear academic, but if Mr Singh were ever to reside in Australia on parole, victim issues would need to be addressed. The offenders and victim in the rape matter came together during a heavy drinking session at the Renmark hotel prior to the offence. Strict restrictions on alcohol and drinking locations need consideration. Attendance at an anger management course should also be included. The applicant would have no difficulty with parole conditions if it were not for his deportation.

13. Mr Singh gave evidence at the hearing before the Tribunal that his conduct in the past had been fuelled by excessive drinking and associating with the wrong crowd.

14. The respondent contended that given Mr Singh’s conduct can change so drastically under the influenced of alcohol, the risk of his reoffending in the future cannot be discounted. Furthermore, the consumption of alcohol was not considered by the sentencing judge to be a mitigating factor in the 1991 incident.

15. Mr Livingston argued Mr Singh has displayed signs of rehabilitation since his imprisonment in 1993. Mr Singh showed exemplary behaviour in undertaking voluntary work with the Salvation Army, undertaking training including courses in English, welding and metal work and in being permitted  24-hour weekly leave from prison for 12 months prior to his release in August 1997. However, Mr Livingston contended that the best evidence of rehabilitation is the 25-year period Mr Singh has spent in the community without reoffending.

16. Numerous witnesses provided written statements and oral evidence which testify to Mr Singh’s good character. They referred to his continuing good works, strong observance of his religious faith and genuine remorse for his actions. Mr Livingston submitted that the most telling evidence was perhaps from his daughter who said:

    I went to see dad in 2016 that is when he told me what happened, I was too young at the time then my dad told me what had actually happened. It was very hard for me to believe it; I could not actually believe he did that. It was overwhelming that he did that; it was disgusting.

17. The affidavit lodged by Naresh Pal, Head Constable in the Punjab Police, summed up the evidence of these numerous witnesses. In it he states:

    …I have known Mr Charanjit Singh since 1980, we met through our families.

    We would often visit each other and go on outings. We got to know each other really well I found Charanjit Singh to be a very loyal and honest friend. Charanjit Singh always did his best to help others and was very friendly.

    Charanjit Singh then went to New Zealand and Australia in 1988. He came back to India in 1997. At this time, I met Charanjit Singh again and he told me about the offences in Australia and what had happened. He was very upset and stressed. He seemed very lost and would always say he was so ashamed of his conduct. After spending some time at the Nanaksar in New Delhi (a temple), Charanjit Singh began to attend the Gurduwara and really listened to the learnings of the Gurduwara. This really helped Charanjit Singh deal with this situation and realise the type of person he wanted to be.

    Since then, Charanjit Singh has become very devoted to the Gurduwara and always does what he can to help others. I have always found Charanjit Singh to be honest, caring, considerate and reliable. He doesn’t like conflict and will walk away from a disagreement if he has to.

    It is difficult for Charanjit Singh to be away from them and he always talks about his family. Charanjit Singh wants to be there for his family. His wife comes to visit him but is hard as his son has cerebral palsy and cannot walk.

    I am proud to be his friend and I know he can never think of doing anything wrong again.

18. While Mr Singh’s offences were serious, it is apparent that his risk of reoffending is low as he has not committed another offence in 25 years since being released from prison. Additionally, the numerous witnesses called, in Australia and overseas, provided a picture of a changed man who has learned from his actions, is devoted to his religion, is caring for his community and deeply concerned about his family’s well-being. Whilst the evidence presented is not disputed or discounted by the Tribunal, it does not mitigate against the finding that the Australian community would not expect an individual with Mr Singh’s convictions to be allowed the privilege of re-entering Australia.

19. However, Mr Singh, while admittedly hampered by a poor telephone line and difficulty with translation, proved an unhelpful witness in his oral evidence to the Tribunal. The evidence he provided did not indicate that Mr Singh had insight into his offending or was genuinely remorseful for the harm he has caused the Australian community.

20. The Australian community has a lower tolerance of any risk of future harm due to the nature of some types of offences. Mr Singh raped a 15-year-old girl. The potential harm to the Australia community if such an offence was to be repeated is considered so serious by the Tribunal that any likelihood of reoffending is unacceptable. Therefore, the Tribunal finds that this consideration weighs in favour of a refusal to grant Mr Singh’s visa to return to Australia.

    Best interest of minor children in Australia affected by the decision

21. Paragraph 11.2 of the Direction relevantly provides that:

    (1) Decision-makers must make a determination about whether refusal is, or is not, in the best interests of the child.

    (2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse to grant the visa is expected to be made.

    …

    (4) In considering the best interests of the child, the following factors must be considered where relevant:

    a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

    b) The extent to which the non-citizen is likely to play a positive parental role in the future (taking into account the length of time until the child turns 18), and including any Court orders relating to parental access and care arrangements;

    c) 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;

    d) 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;

    e) Whether there are other persons who already fulfil a parental role in relation to the child;

    f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

    g) Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

    h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

22. Mr Livingston directed the Tribunal to the decision of Wan v Minister for Immigration & Multicultural Affairs (2001) 33 AAR 163:

    An identification by the Tribunal of what the best interests of Mr Wan's children required, and a recognition by the Tribunal of the need to treat such interests as a primary consideration, would not have led inexorably to a decision by the Tribunal to adopt a course in conformity with those interests. That is, even had the Tribunal concluded that the best interests of the children indicated that Mr Wan should be granted a visa, it was legally open to it to refuse to grant Mr Wan a visa. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan's children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.

    [Emphasis added]

23. Mr Singh’s 16-year-old son has been severely disabled since birth, having been born with severe spastic quadriplegia, cerebral palsy and intellectual disabilities with resultant contractures. Expert medical evidence provided by the applicant described his condition as GMFCS level V cerebral palsy, which is functionally the worst type of cerebral palsy that one can have. He is quadriplegics plastic CP which means that he is in a wheelchair for any ambulation and requires assistance for head support as well as managing all bodily functions including soiling, bowels and bladder. Medical evidence provided indicates his condition results in his inability to stand or walk. He does have some form of language but is totally dependent upon his mother for all his care. He needs to be fed, is not toilet-trained and wears nappies. He needs to be lifted and carried from his wheelchair to the table or bed. In addition, he has a severe scoliosis requiring spinal surgery. Mr Singh’s son was present during the hearing and it was obvious that his care needs are extensive, requiring 24-hour assistance. This is currently provided by Ms Kaur, the sole carer to their child.

24. Mr Livingston strongly contended that the only way his son would benefit from his love and support is for Mr Singh to be granted a visa to return to Australia. The applicant relied upon the written and oral testimony of Dr Peter Forrest, paediatrician, who has been treating the child since he was 12 months old. In his report he states:

    In the past the family have made applications for […]’s father to come to Australia to help his mother with his care. As I have been seeing […] regularly since infancy when he was 12 months of age, I have written to you on behalf of the family in 2001 and again in 2004, supporting their application for Mr Singh’s re-entrance to Australia on the family reunion program. However it seems that he is precluded owing to the incident that occurred in 1997. Though I do not know any extensive details about this, I feel it is important to support the over well-being of […] and his sister and mother who will be facing increasing demands to care for […] as he grows older.

    He is now 12 years of age and weighs 23 kg has had further seizures and is starting back on anticonvulsants, and he will become increasingly more dependent on the public hospital system and the Education Department; and ultimately community services to support his care if his mother has to continue as the sole parent.

25. The respondent accepted that Mr Singh’s son will be adversely affected if the visa is not granted and acknowledged that his medical impairments require 24-hour care. The respondent also accepted the evidence that the son’s level of care is increasing as he grows older and heavier. The respondent did not dispute that Mr Singh’s wife is struggling  physically and psychologically as a result of the constant demands of caring for a severely disabled child.

26. However, the respondent submitted that less weight should be placed on this consideration because Mr Singh has lived in India for the entirety of his son’s life. Furthermore, Mr Singh has not seen his son in 11 years and he currently provides no physical support to his son or wife. Further, the respondent contended that Ms Kaur has other support in Australia through family and friends. Additionally, she has access to government-funded services, such as treatment by a general practitioner, psychologist and paediatrician. There was also evidence that the family was in the process of accessing NDIS funding for the son.

1. It is evident that it would be in the best interests of Mr Singh’s children (particularly his son who is a minor) for his visa to be granted so he can be united with them in Australia. Whilst Mr Singh has had limited contact with his children since his voluntary return to India in 1997, this has not undermined or deterred his resolve to be a good father to his children.

2. The best interest of the children in this case would clearly be served by the granting of a visa to Mr Singh, given the extent of his son’s severe disability and his requirement for
   24-hour care. The Tribunal finds that the best interests of Mr Singh’s children weigh strongly against refusal to grant his visa.

   Expectations of the Australian community           

3. Paragraph 11.3 of the Direction states:

   (1)  The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because of the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.

4. Mr Livingston argued that Mr Singh did not present an unacceptable risk to the community as his risk of reoffending would be at the lower end of the scale, having regard to Mr Singh’s behaviour both before and after his offending.

5. Mr Livingston in  his final written submission to the Tribunal stated:

   …

   In brief, the case for the applicant for review is that the conduct of a husband although very serious, was of short duration, taking place many years ago in circumstances where he had the benefit of his prior good character and is entitled by reason of the effluxion of time to the benefit of his good character post-release. The applicant’s offending conduct was driven in part by excessive consumption of alcohol and the applicant has done everything in his power to change himself, including undertaking voluntary work, becoming involved in religious service and abstaining from the consumption of alcohol.

   It is duly acknowledged the offending conduct of the applicant was very serious, however, the effluxion of time, the evidence of good behaviour, the evidence of contrition and remorse also have a part to play.

   At present, the applicant for the visa and his family, including the children feel that they are subject to an ongoing sentence and incarceration, despite the applicant serving the imprisonment term imposed by the judicial system and showing evidence of his rehabilitation.

   …

   The applicant and this family have struggled to get through each day, however they have done so by clinging to the hope that, at one point, the applicant’s ongoing rehabilitation and clean criminal record for the last 25 years will be evident that he has reformed, is now of good character and is not a risk to the Australian community, and therefore will be provided with an opportunity to join his family in Australia.

   …

6. The respondent contended that this consideration weighs in favour of refusal of Mr Singh’s visa simply because the nature of the offences are such that the Australian community would expect that a person who committed such crimes should not be granted a visa to come to Australia.

7. Mr Livingston, whilst acknowledging the objective seriousness of  the applicant’s conduct, submitted that the Australian community, as attested by numerous witnesses at the hearing, would expect a person to serve the required punishment but give them an opportunity to show that they have reformed and are now of good character. Mr Livingston argued that all the witnesses supported the contention that the passage of time and the demonstrated needs of Mr Singh’s severely disabled son were countervailing factors. The applicant submitted the correct approach to this consideration was to find Mr Singh was a reformed individual, now of good character.

8. The respondent submitted that the Australian community would hold significant concerns about a convicted rapist being granted the privilege of coming to Australia. This, according to the respondent, was reflected in the sentencing judge’s remarks and the custodial sentence imposed. The respondent contended that the sentencing judge made findings consistent with community expectations, reflecting the overriding view that rape offences and their consequences are of particular concern to the Australian community. The respondent argued that it is completely understandable the community would have little patience for individuals who beat young girls into submission and rape them.

9. Mr Livingston took the Tribunal to David John Cawdell Irving v Minister of State for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84, in which the court found:

   The drawing of a conclusion by a decision-maker as to whether he or she is satisfied that an applicant for a visa is of "good character" requires the exercise of a value judgment. There are no precise parameters which distinguish "good character" from "bad character". Although, in general, "good character" can be readily recognised, in a particular case views may differ. It is for the administrative decision-maker, in whom Parliament has reposed the function of making that assessment, to arrive at a decision. Once the decision has been made, it matters not that another decision-maker may have concluded differently. The decision will stand unless an error of law is established, eg., that the decision was such that no reasonable decision-maker could have arrived at it. No such error has been established in the present case.

10. The expectations of the Australian community should be assessed from the perspective of a member of the community who held “middle of the road” views on migration matters and who was fully informed of the evidence before the Tribunal. The view of Deputy President Block  in Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458 at [7] in regard to the expectations of the Australian community was as follows:

    It assumes (incorrectly) that there is an Australian community which thinks as one. The supporters of One Nation would have one view as regards immigration, and there is of course a very large diametrically opposed body of opinion in Australia. I construe this reference as being correctly made to middle-of-the-road reasonable members of the Australian community who do not hold extreme views one way or another. And I think that there is a further limiting factor and that is that one must import into the Australian community, knowledge of the evidence before me. …

    Although Deputy President Block was considering an earlier Ministerial Direction, there is little reason that case does not remain applicable to assessing this consideration under Direction 65.

11. Finally, it should also be noted that the principles in paragraph 6.3 of the Direction are important in considering the expectations of the Australian community, as they reflect community values and standards (paragraph 6.2(1) of the Direction).

12. There can be no question that Mr Singh betrayed the trust of the Australian community through his acts of violence and the violation of a vulnerable minor. The Australian community on the whole wants to give people a second chance and would recognise that Mr Singh has served his time in prison, has been punished for his crimes and now has an unblemished record for 25 years. However, the Australian community also has a low tolerance for people who commit sexual crimes against children. The Australian community, fully informed of the circumstances of Mr Singh’s offending and his other circumstances, would expect the refusal of his visa.

13. The Tribunal’s view is that this primary consideration weighs in favour of refusal of Mr Singh’s visa application because the nature of his offending was such that the Australian community would expect that he not be afforded the privilege of returning to Australia. Regardless of the significant passage of time since the offence, Mr Singh’s  reported remorse and numerous character references, Mr Singh’s abhorrent offending is such that the Australian community would expect that he not be granted a visa to return to Australia.

    OTHER CONSIDERATIONS

    International non-refoulement obligations

14. Paragraph 12.1 of the Direction provides:

    (1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person where they will be at risk of a specific type of harm. Australia has non-refoulement obligations to non-citizens in Australia under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT) and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.

    (2) The existence of a non-refoulement obligation does not preclude refusal of a non-citizen’s visa application in Australia. This is because Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the non-refoulement obligation exists.

    (3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider refusal of their visa under s501 of the Act, or can be clear from the facts of the case (such as where the non-citizen is an applicant for a protection visa).

    (4) Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen is able to make a valid application for another visa, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether their visa application should be refused.

    (5) If, however, the visa application being considered for refusal is a Protection visa application, the person will be prevented from making application for another visa, other than a Bridging R (class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them – sections 48A and 48B of the Act refer).

    (6) In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending and other serious conduct in deciding whether or not the non-citizen should be granted a visa. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa application were refused, they would face the prospect of indefinite immigration detention.

15. This consideration is not relevant as Mr Singh currently resides in India.  Therefore, there are no non-refoulement obligations that need to be observed in this situation.

    Impact on family members

16. Paragraph 12.2 of the Direction provides that the Tribunal must have regard to the:

    Impact of visa refusal on immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely;

17. Mr Livingston, in the final written submission to the Tribunal, stated:

    The daughter, Shireen, has stated how she has struggled without a father in Australia without having a complete family. She has stated that she believes that her life and that of her mother and brother will change dramatically if her father is allowed to come to Australia (…). During her evidence Shireen highlighted the harsh reality that she faces, stating “my father is not here … I’m afraid that if my father is not allowed to come I may not have a mother either.”

    The wife, has also acknowledged her husband’s criminal record and the seriousness of his actions, however she pleads that you also consider her husband’s record both before and after the offending and also the exceptional needs of the family, in particular the child,[…]. The wife longs to have the physical support and assistance of her husband and made it clear during her evidence, both in writing and in person that she is struggling. The wife’s fragile mental state is emphatically identified in the statements of the Psychologist Hatice Kurtoglu.

    The Psychologists for the wife, Hatice Kurtoglu has clearly indicated that it is extremely important for the wife to be re-united with the Applicant and that she believes that the wife will suffer tremendously in the near future, if she is not re-united with the Applicant. Hatice Kurtoglu has also clearly stated that the wife has feelings of desperation and often presents with suicidal ideation, as she gets extremely overwhelmed by the Applicants visa issues.

    …

    … the first instance decision to refuse the Visa subclass 309/100 partner (Provisional) Class UF Visa, made on 9 May 2017 makes reference to hardship being suffered by the Applicant for the visas, wife and children, however it is stressed that the use of  the word hardship seems to minimise the true impact that will be suffered. In the event that the Applicant is not permitted to join his family in Australia, the impact on the family would enliven absolute extreme hardship.

18. The respondent acknowledged that the refusal of Mr Singh’s visa will impact on his immediate family in Australia, particularly his wife who is suffering from mental health issues. The respondent also acknowledged the evidence of Mr Singh’s daughter, who is now 19 years of age that she is suffering and has suffered as a result of her father’s prolonged absence. However, the respondent submitted these considerations are not sufficiently compelling to outweigh the protection of the Australian community, particularly in light of the violent and sexual nature of Mr Singh’s crime.

19. The respondent was surprised by the oral evidence of Ms Kaur’s psychologist, Hatice Kurtoglu. The psychologist stated there was no support or strategies she could provide Ms Kaur to cope with her husband’s long absence from Australia and the burden of caring for their disabled son. The evidence from the psychologist indicated Ms Kaur’s mental health issues could only be remedied by her husband’s return to Australia. The respondent argued little weight should be afforded to the psychologist’s evidence as it appears restricted to and premised on Mr Singh’s return to Australia.

20. The refusal of Mr Singh’s visa application would have a detrimental impact upon his family, causing severe hardship, particularly upon his wife’s mental health, which is finely balanced. Her well-being seems predicated on her husband being able to return to Australia. This must be tempered against the realisation that Ms Kaur married Mr Singh in India, following his voluntary removal from Australia at the end of a custodial sentence. It seemed highly unlikely that Ms Kaur would have ever been given an assurance that her husband would be granted a visa to return to Australia at any time given the serious nature of the crimes he had committed. Again, the effluxion of time since the offence cannot mitigate against Mr Singh’s actions but this consideration does weigh against refusal to grant Mr Singh’s visa.

    Impact on victims

21. Paragraph 12.3 of the Direction provides that the Tribunal must have regard to the:

    Impact of a decision to grant a visa on members of the Australian community,   including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and can be disclosed to the non-citizen being considered for visa refusal;

22. There was no evidence one way or the other that identifies what impact, if any, the refusal of Mr Singh’s visa would have on the victims. There were no victim impact statements amongst the materials. However, given the serious and violent nature of the crimes, one could conclude they will have a lasting impact upon the victims. Nevertheless, given the passage of time since the offences, it is more likely than not there would be no practical impact on the victims if Mr Singh’s visa was granted. The Tribunal therefore finds that this consideration has no bearing upon consideration of refusal of Mr Singh’s application for a visa under s 501(1) of the Act.

    Impact on Australian business interests

23. Paragraph 12.4 of the Direction provides that the Tribunal must have regard to the:

    Impact on Australian business interests if the non-citizen’s visa application is refused, noting that an employment link would generally only be given weight where visa refusal would significantly compromise the delivery of a major project or delivery of an important service in Australia.

24. The parties did not lead any evidence in relation to this consideration. While Mr Singh has been consistently employed in the farming sector and has trade qualifications, the Tribunal considers that there would be no impact on the delivery of a major project or delivery of an important service in Australia, whether his application for a partner visa was granted or refused.

25. In light of the absence of evidence to the contraty, the Tribunal finds there will be no impact upon business interests in Australia should Mr Singh’s visa be refused.

    CONCLUSION

26. There are considerations that weigh against refusal to grant Mr Singh’s visa to return to Australia. The most significant of these is the primary consideration of the best interests of his minor child in Australia. It is apparent that Mr Singh’s severely disabled son would benefit greatly from his father’s presence in Australia. The Tribunal has also considered the impact on his family, most notably his wife who would gain tremendous physical and psychological support from the presence of her husband in Australia, as he would undoubtedly be able to assist in providing care for their son.

27. However, the Tribunal must balance this against the fact that Mr Singh and Ms Kaur married and had children in India, after Mr Singh had voluntarily left Australia following his release from prison. The evidence before the Tribunal indicated blind hope or complete naivety on Mr Singh’s and Ms Kaur’s part in assuming he would find a pathway back to Australia.

28. Mr Livingston cited Wan v Minister for Immigration & Multicultural Affairs [2001] FCA 568 where the court found:

    The Full Court has concluded that the Tribunal failed to treat the best interests of Mr Wan's children as a primary consideration. It follows that Mr Wan is entitled to have the decision of the delegate reviewed again on a proper basis.

    This does not mean that if the Tribunal decides it would be in the best interests of the children for Mr Wan to be granted a visa, that the Tribunal must grant that visa. It does mean, however, that the Tribunal would only be entitled to refuse to grant the visa if it finds that other relevant considerations outweigh the best interests of the children.

    The evidence would indicate that Mr Singh’s visa can be refused if other considerations outweigh the best interests of the child.

29. Mr Singh’s offences were committed 25 years ago and there were numerous referees who attested to Mr Singh being a changed man and now of good character. The effluxion (passage of time since the offences do not however erase the Australian community’s contempt for the crimes Mr Singh has committed. Although some considerations weigh against refusal to grant Mr Singh’s visa, they do not outweigh the two primary considerations, being the protection of the Australian community and the expectations of the Australian community which both weighed heavily in favour of refusal of Mr Singh’s visa.

1. Mr Livingston also cited Re Britos and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1282 where the Presiding Member grappled with the meaning of good character, finding:

   18. Unless the terms of the Act and regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion. ... A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character. ... Conversely, a person of good repute may be shown by objective assessment to be a person of bad character. After referring to the judgment of the Court in Irving, Chapter 11 provides, in part:

   In this context, “moral” does not have any religious connotations. The phrase “enduring moral qualities” encompasses the following concepts:

   characteristics which have been demonstrated over a very long period of time

   distinguishing right from wrong

   behaving in an ethical manner, conforming to the rules and values of Australian society.

   The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.

   The evidence indicates that Mr Singh’s past serious offending in Australia demonstrates an inability to conform to the rule of law, to respect the values of the Australian society and to demonstrate enduring moral qualities.

2. Overall, having regard to all the primary and other considerations in the Direction, the correct and preferable decision is to refuse to grant Mr Singh a visa to return to Australia.

   DECISION

3. For the reasons I have given, I affirm the decision of the delegate of the Minister dated 7 April 2017 to refuse Mr Singh’s application for a Partner (Provisional) (Class UF) Visa under s 501(1) of the Act.

I certify that the preceding 106 (one-hundred and six) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke, Member.

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

Associate

Dated: 17 September 2018

Date(s) of hearing:	19, 20 June 2018
Solicitors for the Applicant:	Christopher Livngston - Christopher Levingston & Associates
Solicitors for the Respondent:	Adam Cunynghame - Sparke Helmore