Kaur and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 432

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 432

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2004/746

GENERAL ADMINISTRATIVE   DIVISION		)
Re		JASVIR KAUR

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal The Hon C R Wright QC (Deputy President)

Date12 May 2005

PlaceMelbourne

Decision The decision under review is affirmed.

[The Hon C R Wright QC]

Deputy President

CATCHWORDS

Immigration – Sub-Class 309 Spouse (Provisional) visa –  convicted of criminal conduct involving rape and causing actual bodily harm – imprisonment – married Australian citizen  – not of good character  – severely disabled child - discretion – best interests of children – decision under review affirmed.

Migration Act 1958 – s501(6)

REASONS FOR DECISION

12 May 2005 The Hon C R Wright QC (Deputy President)     

Decision Under Review

1. This is an application to review a decision by the Minister’s delegate made on 25 May 2004 refusing to grant a Class UF Subclass 309 Spouse (Provisional) Visa to Charnjit Singh (the visa applicant), the husband of Jasvir Kaur (the review applicant). The delegate’s decision was based upon his finding that the visa applicant did not pass the character test provided for in s501(6)(a) of the Migration Act 1958 (“the Act”) in that the visa applicant has a substantial criminal record within the meaning of s501(7) having been sentenced to a term of imprisonment of 12 months or more. Having made this finding the delegate declined to exercise his discretion to grant the visa. The application to review the delegate’s determination is brought pursuant to the provisions of s500 of the Act and ss25 and 29 of the Administrative Appeals Tribunal Act 1975.

Chronology of Relevant Facts

·     15 February 1961         -          The visa applicant was born in Chakrala, India.

·     5 September 1968        -          The review applicant was born in Harkhowal, India.

·27 October 1988         -            The visa applicant entered Australia on a  Visitor Visa.

·28 January 1989         -            The visa applicant married Lisa Michelle Brown in Melbourne.

·14 February 1989        -            The visa applicant separated from Ms Brown.   There is no record of this marriage or divorce in the papers and the visa applicant says it was “not accepted as a genuine marriage by the Embassy.”

·25 May 1990                -            The visa applicant applied for a protection visa.

·30 December 1991     -            The visa applicant committed the crimes of rape and assault causing actual bodily harm upon a young woman in South Australia.

·19 June 1992               -            The review applicant married Jasbir Kahlon in Victoria.   The marriage only lasted 6 months according to the review applicant.

·26 February 1993        -            The visa applicant committed a group assault with 2 others upon a male using a hockey stick and a rod as weapons.

·1 March 1993               -            The visa applicant was convicted of rape and assault occasioning actual body harm in the Supreme Court of South Australia and sentenced to 8 years imprisonment in total, 6 years non-parole period.

·2 March 1993               -            The visa applicant’s application for a protection visa was refused.  (See Exhibit A10)

·17 June 1994               -            The visa applicant was convicted of the assault occasioning actual bodily harm committed on 26 February in the District Court of South Australia, and was sentenced to 12 months imprisonment with a non-parole period amounting to 6 years, 9 months cumulative with his previous sentence.

·31 July 1994                 -            The review applicant’s marriage to Jasbir Kahlon was dissolved by decree absolute.

·25 May 1995                -            The review applicant was granted Australian citizenship.

·15 August 1997           -            After serving just over 3 years of his prison sentences the visa applicant was released and immediately departed from Australia, supervised by DIMA officials.

·22 March 1998             -            The visa applicant married the review applicant at Hoshiarpur, India.

·18 November 1998     -            The applicants’ daughter Shireen Singh was born in Melbourne, Australia.

·14 November 1999     -            The visa applicant’s parole period expired.   As he had been living in India for the whole period since his discharge from prison it seems that he was never effectively supervised as required by the conditions of his release.

·26 June 2001               -            The applicant’s son Inderveer Singh was born at Hoshiarpur, India.

·22 February 2002        -            Inderveer Singh was registered as an Australian citizen by descent.

·5 February 2003          -            The visa applicant lodged an application for a spouse (provisional) visa.

Good Character

2. The terms of the Act make it plain that once it has been established that a visa applicant has been sentenced to 12 months imprisonment, that person has a “substantial” criminal record which much result in an adverse character assessment. This does not mean that the question of the applicant’s subsequent and present conduct is irrelevant to the Tribunal’s review function as the issue of discretion must be considered even if an applicant is found to be not of good character, and an applicant’s current behaviour is some relevance to this issue. However, it does mean that the views of Lee J in Godley v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 774, dealing with the possible effect of past and present general conduct upon a character assessment under s501(6)(c) and have no direct application to an adverse character assessment required under s501(6)(a) as a matter of law. Accordingly it is my view that the only proper decision on the facts of this case, is that the visa applicant is a person who is not of good character and does not pass the character test within the meaning of s501 of the Act.

Discretion

3.      I turn therefore to the question whether or not I should exercise my residual discretion to relieve the visa applicant from the consequences of the adverse character determination.     The Minister’s Direction No. 21 contains comprehensive policy directions which the Tribunal must take into account in performing this function.   All three of the primary considerations referred to in “Part II – Exercising the Discretion” must be looked at.

Protection of the Australian Community

4.      The first of these is the issue of protection of the Australian community Paragraph 2.4 of the Direction states:

“The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.    The Government is especially mindful to take reasonable steps to protect the safety of the more vulnerable members of the community, such as children and young people who are especially at risk.   This is of particular important when the offences in question are in relation to drugs and crimes of violence.”

5.      Paragraph 2.5 provides that the factors relevant to the assessment of the level of the risk to the community are:

(a)      the seriousness and nature of the conduct;

(b)      the likelihood that the conduct may be repeated (recidivism); and

(c)whether visa refusal may prevent or discourage similar conduct by others (general deterrence),

6.      Within the guidelines provided by paragraph 2.6 the visa applicant’s conduct is viewed by the Government as “very serious”.   Paragraph 2.6(d) emphasises that “sexual assaults are particularly repugnant to the Australian community, especially sexual assaults involving children.”   Paragraph 2.6(f) includes “assaults or any other form of violence against persons” as “very serious” offences.

7.      It is therefore necessary to consider the circumstances of the offences of rape and assault committed by the visa applicant on 30 December 1991, and also the assault which he perpetrated on 26 February 1993.

(a) The rape and assault (30.12.1991)

These offences occurred at night.    The fifteen year old female complainant had been supplied with liquor and was drinking in the company of the visa applicant and 3 of his male friends near the bank of the river Murray at Renmark.   I infer that the girl did not previously know the visa applicant or his friends.   After the visa applicant’s friends left the scene he got into the rear of the car in which the complainant was seated.   He grabbed her arm; she told him not to.   He then slapped her on the cheek.   She screamed out for help “more than once” and was crying.   There is some doubt as to where the visa applicant’s friends were at the time, but while she and the visa applicant were alone in the car he hit her on the back of the head.   He then told her to take her clothes off.   He threatened to kill her and called out for a knife.   She removed her clothes and the visa applicant had intercourse with her against her will.    When medically examined some hours later she was dishevelled, some of her clothing was torn and she had some signs of injury to her face and body.   When questioned by the police, the visa applicant at first denied intercourse with the complainant, but at his trial he changed tack and alleged that he had consensual intercourse with her.   The above material is taken from the Full Court judgment Singh and Ors v R (1993) SASC 4109 on 18 August 1993.

(b) The assault of 26 February 1993

On the night of 26 February 1993, the visa applicant was in company with two other males, Kuldip and Harnake.    They went to a caravan park where Sukhdev lived.    There was an argument between Kuldip and Sukhdev about money which Kuldip owed to Sukhdev.   Sukhdev was struck and knocked to the ground.    He returned to his caravan, but left 20 minutes later to go to the post office to make a telephone call. He saw the visa applicant and Kuldip and another man near the park entrance.   They invited him to have a drink.   He got in to their car and was driven off.   They stopped by the roadside 20 minutes later and had a drink.   The car was then driven to another location and they all got out.   Kuldip opened the car boot produced a rifle and said to Sukhdev “We are not going to let you go today; we are going to kill you.”  Kuldip struck him with the rifle in the chest and the visa applicant and the other man struck him a number of blows with a hockey stick and a rod.    He fell to the ground and was struck several further blows.   He was put back in the car and later dropped off somewhere near a place called Waikerie.   Medical examination showed that he had a black eye, grazes to his nose, multiple bruises to his back, arms, buttocks, thighs, shins and ankles “consistent with being hit with a hockey stick”.   He also had linear welts with grazes across his body and a swollen left ankle.”   At his trial the visa applicant denied having been involved in any attack on Sukhdev, but was found guilty by the jury.

8.      It was obvious that each criminal incident in which the visa applicant was involved was extremely serious.    He claims that he has now seen the error of his ways and is a reformed character.   These claims were supported by his uncle Iqbal Singh, his second cousin Balwinder Singh and his wife, the review applicant.   However I find the evidence of these three witnesses, in relation to this issue, to be of very little value.   Iqbal Singh has seen the visa applicant during two visits which he has made to India.    He says his nephew “had very bad luck” and he made a “mistake”.    He says the visa applicant “cries a lot and really feels sorry for it”.   He condemned his nephew’s friends at the time of the crimes as “very bad people” but it was plain he had no knowledge of any of them apart from what the visa applicant had told him.    He suggested these friends unfairly “put all the blame” on the visa applicant.    This attitude, unfortunately, was much the same as that adopted  by the visa applicant himself who said at paragraph 4 of his affidavit (Exhibit A5):

“At the time of the offences I was single and involved with the wrong crowd and influenced by their actions and behaviours.”

It should be noted that the evidence suggests that the visa applicant was the initiator of the attack on the young girl at Renmark and was an apparently willing and enthusiastic participant in the assault near Waikerie.   At the time of the Renmark attack the visa applicant was nearly 31 years of age so he was scarcely a young immature offender.    Balwinder Singh  also referred to the visa applicant’s crimes as “mistakes” and said:

“It must have been that he was in bad company and because of the bad influence of bad friends.”   

He said that he had last seen the visa applicant in India about 6 months ago.   He says that the visa applicant is a calm peaceful man and has shown renewed interest in his Sikh religion.     It is plain that both Iqbal and Balwinder Singh are anxious for the visa applicant to be readmitted to Australia so that he can shoulder some of the burden that is involved in caring for the review applicant and her severely disabled son, Inderveer.    I accept that they and the review applicant are sincere in their judgment of the visa applicant as a reformed character, but in my view their perceptions and opinions are largely influenced and probably distorted by their motivations and their relationships.   I think that they see what they want to see.   At all events I regard none of them as independent and reliable assessors of the visa applicant’s present character.   The same may be said of the views of Dilbagh Singh Kahlon (Exhibit R1, p137).   I would find it impossible to say that, if confronted with similar situations in the future, the visa applicant would not offend again.

9.      The question also arises whether visa refusal “may prevent or discourage” similar conduct by others.   The delegate who initially dealt with the visa application now under review placed little weight on this consideration, but in my opinion he should have seen this as a factor of some significance.   As I have said on several occasions, one individual case of refusal may not become widely known to prospective offenders, but if a consistent approach is taken by decision-makers that serious criminal conduct will have a disqualifying effect upon a visa application.    This soon becomes generally known throughout the target community and has a similar deterrent effect to that achieved upon members of the general population who are aware of the likelihood of punishment, such as imprisonment, in the event of their participating in criminal conduct.    In short, in terms of the Minister’s Direction, visa refusal may well “prevent or discourage” similar behaviour by prospective offenders.

The Best Interests of the Children

10.     This is the third primary consideration.  I shall return to the second consideration (the Expectations of the Australian Community) shortly.   Paragraph 2.15 of the Minister’s Direction says that:

“In general terms, the child’s best interests will be served if the child remains with its parents.”

There are 10 particular aspects of the issue that decision-makers must consider listed in paragraph 2.15(a) to (J) inclusive.

11.     The review applicant and both children are Australian citizens and have been living with Iqbal Singh and his wife at Hampton Park in Victoria for the last 3½ years.   In his statutory declaration (Exhibit R1, page 34) Iqbal Singh says that if the visa applicant comes to Australia he will assist him and his family in any way he can.   It is obvious from his oral evidence that he already gives considerable assistance to the review applicant in caring for her two children.    Inderveer, the younger of the applicant’s two children suffers from cerebral palsy and has been severely disabled since birth.    The extent of this disability is described in the report from Yooralla, dated 18 October 2004.    This report was amplified in oral evidence by Denise Kasperczyk an occupational therapist and co-author of the report.   The following excerpts from the report (Exhibit A1 and A9) provide details of Inderveer’s condition and his treatment:

“Inderveer Singh, son of the applicant turned 3 years old in June.   Inderveer cannot sit without support, is immobile and has little use of his upper limbs.   He is able to make eye contact, however can as yet no make his needs known.   He is therefore dependent in all areas of his personal care and is likely to be for the rest of his life.  His mother, Jasvir Kaur is his full time carer.

As Inderveer is getting bigger, Jasvir reports that lifting him, exercising his limbs and carrying him is aggravating her back complaint and is becoming more and more difficult to do.    She has managed so far as she has had the support of Charnjit’s Uncle, Aunt and cousins here in Melbourne.  The family have provided much assistance and emotional support for Jasvir and a loving, supportive environment for the children.

Yooralla Society of Victoria has been involved with this family since February 2003.   Inderveer has been attending weekly therapy sessions at our centre where he receives physiotherapy, occupational therapy, speech therapy and specialist educational services.    Therapists also provide regular home visits.  Inderveer currently attends sessions with his mother, these being play based however he has been allocated a position in a specialised three year old kinder program next year.  He is also reviewed regularly by a paediatrician and the neuromuscular clinic at the Monash Medical Centre.

Many aids and equipment have been made available to the family for Inderveer’s use to assist with his therapy and also to assist the family care for this severely disabled child.    These included a standing frame, specialised chair, leg splints and foot orthosis’.  Inderveer has also been measured for a wheelchair and a funding application has been made on his behalf to obtain one.   Inderveer will very likely be wheelchair dependent for his life.

…

It is to our knowledge and, from first hand experience working with disabled children in India for 10 years, that this level of assistance will not be available to Inderveer should he return to India.    The family would live in a remote farming village, without extended family supports and would not be able to access or afford treatment for Inderveer.   Some services for Cerebral Palsy exist in Delhi, Mumbai, Kolkatta and other big cities and towns in India.    I (Anoo Bhopti) have worked in Mumbai and travelled vastly for work related issues all over India.   There is very poor funding, if any at all, long waiting lists and every service provided and all specialised equipment has to be paid for.   Some voluntary organisations help people with financial difficulties, but the population seeking this assistance is huge.   There are possibly no services catering to Inderveer’s needs in the village that they would be residing in.   if the family returns to India for reunion with his father, Inderveer will either be totally secluded at home with no services, or the family will have to move to a city, which according to his mother, are not possible, for family and financial reasons.   If secluded at home, Inderveer could result in having multiple contractures and deformities, as he needs ongoing therapy for his spasticity.”

12.     The opinion expressed by Ms Kasperzyk is fully endorsed by other health professionals who have also provided written reports.   (See Exhibits R1 pages 141 and 142, A2, A6, A7 and A8).   In paragraph 23 of the Respondent’s Facts and Contentions dated 29 November 2004, it is accepted that “the children, especially Inderveer, would suffer hardship if they were to relocate to India.   The Minister accepts that the standard of medical and educational facilities in Australia would be of a higher standard than in India.  The Minister also accepts that the best interests of the children would be met by having both parents available to them during their upbringing and that the best environment for this would be Australia.”    In my opinion, these concessions are properly made and accord with my own assessment of the situation.   It should be noted that both children are currently enjoying the benefits of the Australian educational, health and welfare system.   The review applicant is receiving adequate financial assistance from governmental sources amounting to $910 per fortnight.   From this she has regular commitments of $120 per fortnight for rent and $300 per fortnight for food.   As already mentioned she shares accommodation with Iqbal Singh and his wife and is assisted by them in many small ways.   She also acknowledges “a lot” of assistance from the Yooralla Society.   She has a spinal condition which makes it difficult for her to handle Inderveer on her own as mentioned in Exhibits A1 and A6.   I accept that the review applicant is experiencing distress caused by her husband’s enforced absence.   However it should also be noted that she was well aware of her husband’s offending behaviour and imprisonment before they were married.   Indeed they were married in India only 6 or 7 months after his supervised departure from Australia on completion of his prison sentences in August 1997.   Both of them must have realised that there would be considerable difficulty obtaining permission for the visa applicant to re-enter Australia.

13.     The review applicant continued living with the visa applicant in India until just before the birth of their daughter Shireen.   Her movements between Australia and India thereafter are detailed in her sponsorship document at page 103 of Exhibit R1.   She and her husband both claim that they believed his offending conduct, convictions and imprisonment would not provide an impediment to his return to Australia, but I reject this.    In my opinion they both took a calculated risk on this issue which in the event, as a consequence of Inderveer’s congenital disabilities, has turned into something of a disaster.   If the visa applicant’s visa is refused, the review applicant has a difficult choice.   Will she take a risk with Inderveer’s future health and her current financial security by returning to India to resume cohabitation with the visa applicant or will she accept that her relationship with him will be severely curtailed by her continuing to reside and care for her children in Australia?   I have no doubt that she will choose to continue living in Australia, but there is no reason to suppose that she will be unable to visit the visa applicant in India from time to time.

The Expectations of the Australian Community

14.     In assessing the expectations of the Australian community one attempts to give the proper objective dimension to the problem by considering the response to the visa application by level-headed, reasonable and humane members of the populace, who have been fully informed of all relevant facts.   This is never an easy task.   It is particularly difficult in the present circumstances.   On the one hand we have a serious criminal offender who has committed an abhorrent sexual attack upon a young woman, still a child in the eyes of the law, and has made a vicious premeditated joint attack with others upon another man.    There is no suggestion that provocation played a part in the visa applicant’s participation in the latter crime.   Since his release on parole he has lived in India.   There is no evidence that he has been supervised by parole personnel during that time.   His wife and relatives say he has reformed, but their evidence is of little weight.   He himself was an unsatisfactory and evasive witness in my opinion, and I am far from satisfied that he genuinely accepts full moral responsibility and culpability for his conduct.

15.     On the other hand, he has fathered two children, one of whom is severely disabled.   By virtue of her Australian citizenship and that of her children his wife is able to live here and obtain very great assistance from governmental and charitable welfare sources.   She has a back condition, but there are relatives available and willing to help her with the children.  In my opinion that assistance is likely to continue in future despite Iqbal’s stated reservations during his oral evidence.   The review applicant’s essential need for the visa applicant’s presence is to have an extra pair of hands and to have his general support in assisting with the hardship that the son’s disability imposes upon her physically and emotionally.    It was obvious from her demeanour at the hearing that she is depressed.    Nonetheless, on balance, I think the Australian community would expect that the visa application should not succeed.

Other Considerations

16.     I have already dealt with hardship issues affecting the review applicant which would arise or continue from visa refusal.   The most obvious hardship to the visa applicant would appear to be his deprivation of continuous companionship and wifely support from his wife and the society of his two children.   However they may still visit him from time to time in India.   The review applicant has spent about 3 years, 3 months in India with him since he left Australia.   There is no evidence that he provides his family with any financial support.   There is no evidence that he is currently subject to discrimination of the kind which he alleged in support of his protection visa application.   He has trade qualifications of a kind which are currently in demand in Australia so presumably, if he were admitted to this country he could obtain employment and contribute to the cost of his family’s needs.   In terms of the current problem however, I regard this as a fairly neutral fact.

Conclusion

17.     I have considered this matter at some length.   One’s natural inclination and sympathies lie with Inderveer’s condition and its impact upon his mother, but I remain unpersuaded that my discretion properly and fairly exercised should be in favour of the visa applicant.    I am therefore of the opinion that the decision under review should be affirmed.  I so determine.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC (Deputy President)

Signed: K L Miller (Administrative  Assistant)

Date/s of Hearing  23 February 2005
Date of Decision  12 May 2005
Counsel for the Applicant         Mr John Gibson
Solicitor for the Applicant          Karan Kahlon
Counsel for the Respondent     Ms Gretchen Bennett
Solicitor for the Respondent     Clayton Utz