Kaur and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Kaur and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1918 (27 June 2023)
Division:GENERAL DIVISION
File Number(s): 2023/2317
Re:Amardeep Kaur
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Mr S Evans, Member
Date:27 June 2023
Place:Sydney

The reviewable decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs dated 3 April 2023 to refuse the Applicant a Bridging E (Class WE) visa is affirmed.
...............................[SGD].........................................
Mr S Evans, Member
Catchwords
MIGRATION – visa refused under subsection 501(1) of the Migration Act 1958 (Cth) – where the applicant has a substantial criminal record – where the applicant does not pass the character test – issue: is there a reason why the visa should not be refused on character grounds - Direction no. 99 considered – reviewable decision affirmed
Legislation
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Sebastian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1054
Suleiman and Minister for Immigration, and Border Protection [2018] FCA 594
Secondary Materials
Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Mr S Evans, Member
27 June 2023
INTRODUCTION

Amardeep Kaur (the Applicant) seeks review of a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) refusing her application for a Bridging E (Class WE) visa (the visa).
The Applicant was born in India and is a citizen of that country. She migrated to Australia with her husband, Harjit Singh, on 14 March 2020.[1] On 12 October 2020 she was granted a Student (Subclass 500) visa.[2] The Applicant’s student visa was cancelled by the Minister on 3 February 2022 as she was non-compliant with the visa conditions.[3]
[1] G2, 150, 199.
[2] G2, 157, 173.
[3] G2, 161, 163.
The Applicant was sentenced to a 13-month term of imprisonment to be served by way of an Intensive Correction Order (ICO) in the Local Court of New South Wales on 21 April 2022.[4]
[4] G2, 27
On 3 April 2023 a delegate of the Minister refused her application for the visa as they were not satisfied that she passed the character test pursuant to section 501 of the Migration Act 1958 (Cth) (the Act).[5] This is the decision under review in these proceedings.
[5] G2, 10.
ISSUES TO BE DETERMINED
As the Applicant was sentenced to a term of imprisonment greater than 12 months on 21 April 2022, I am satisfied that she has a ‘substantial criminal record’ as defined in paragraph 501(7)(c) of the Act.
The Applicant accepts she does not pass the character test. The sole issue for determination is whether the discretion under subsection 501(1) of the Act should be exercised to refuse to grant the Applicant a visa.
Relevant law and ministerial direction 99
Subsection 501(1) of the Act provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that they pass the character test:
(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Subsection 501(6) defines the character tests. Relevantly, paragraph 501(6)(a) provides that a person does not pass the character test if they have a ‘substantial criminal record’.
Substantial criminal record is defined in subsection 501(7) of the Act which relevantly provides:
(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; or
Paragraph 500(1)(b) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501(1) to refuse to grant a visa.
The Minister has made written directions under section 499 of the Act which apply to decision-makers in the exercise of the discretion in subsection 501(1) of the Act. The relevant direction is Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 99).
Paragraph 5.2 of Direction 99 provides overarching principles which I have considered when reviewing the Applicant’s application. It relevantly provides:
(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 noncitizens 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) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Part 2 of the Direction identifies the considerations the Tribunal must have regard to when determining whether to exercise the discretion to refuse to grant a visa. The primary considerations should generally be given greater weight than the other considerations, and one or more primary consideration may outweigh other primary considerations. However, other considerations should not be considered ‘secondary’ or of inherently less importance than primary considerations, and in certain circumstances one or more other considerations may outweigh primary considerations.[6]
[6] Suleiman and Minister for Immigration, and Border Protection [2018] FCA 594, [23] per Colvin J
The primary considerations in the Direction are:
(1)protection of the Australian community from criminal and other serious conduct;
(2)family violence committed by the non-citizen;
(3)strength, nature and duration of ties of the non-citizen to Australia;
(4)best interests of minor children in Australia affected by the decision; and
(5)expectations of the Australian community.
The other considerations set out in Direction 99 which must be taken into account where relevant include but are not limited to:
a)legal consequences of the decision;
b)extent of impediments if removed;
c)impact on victims; and
d)impact on Australian business interests.
EVIDENCE
Background
The Applicant met her husband in 2014 in India. They travelled to Australia in March 2020 to visit Mr Singh’s sister, Mandeep Kaur, and her husband Ravinda Singh. Having arrived on a tourist visit, the Applicant obtained a student visa on 12 October 2020 for which Mr Singh was a dependant.[7] Initially the Applicant and her husband lived with Mandeep and Ravinda.
[7] G2, 157, 173.
The Applicant gave oral evidence at the hearing into her application. She confirmed she worked as a dishwasher and cleaner whilst in Australia. Her hours were limited by the condition of her visa. When work ‘dried up’ due to the pandemic she was unable to find employment for the full 20 hours she was entitled to work each week. Consequently, she and her husband fell into financial hardship.
In November 2020 the Applicant became pregnant with her son, AN, who was born in August 2021.[8] AN was placed in the care of the Minister of the NSW Department of Communities and Justice (DCJ) under an interim order dated 30 December 2021.[9]
[8] G2, 126.
[9] G2, 125.
The Applicant gave evidence that her life in Australia was difficult due to the pandemic, multiple miscarriages, lack of work and family issues, notably the death of her father in August 2020.
The Applicant began using heroin and occasionally methamphetamine. Her drug use became more regular in response to the difficulties she faced. Though she did not use drugs while pregnant, her drug use increased after AN was removed from her care and she became a daily drug user.
Although both the Applicant and her husband had developed drug habits, the Applicant gave evidence that they were unaware of each other’s drug use until their son was removed from their care.
The Applicant’s evidence was that she last used drugs prior to the incident for which she was arrested on 3 March 2022. Since her arrest, the Applicant has been in prison or held in immigration detention.
Character reference
Mandeep Kaur has provided a statutory declaration confirming the Applicant is part of her family and is needed by AN. Ms Kaur believes that the Applicant is remorseful for her actions.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. When considering the protection of the Australian community, Direction 99 requires decision-makers to have regard 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.
The nature and seriousness of the Applicant’s offending and other conduct
The Applicant’s criminal record shows that she has appeared before the courts on multiple occasions for offences involving repeated break and entry and theft and possession of stolen goods.
On 18 October 2021 the Applicant appeared in the Fairfield Local Court where she was fined a total of $1000 for three counts of ‘Goods suspected stolen in/on premises (not m/v)’.[10]
[10] G2, 28.
She appeared in the Liverpool Local Court on 20 October 2021 where she was fined for ‘Enter incl land not presc premises w/o lawful excuse and Not comply with noticed direction re s 7/8/9 – COVID-19’ and fined a total of $1000.[11]
[11] G2, 28.
On 16 March 2022 the Applicant appeared in the Parramatta Local Court where she was sentenced to a 12-month Intensive Corrections Order (ICO) for offences including ‘Agg Break & Enter house etc steal value <= $60,000-T1’. She was also convicted of ‘Shoplifting Value <=$2000’.[12]
[12] G2, 27-28.
On 21 April 2022 the Applicant appeared in Parramatta Local Court where she was sentenced to a 13-month ICO for ‘Agg Break & Enter house etc steal value <= $60,000-T1’ and fined $500 for ‘Goods in personal custody suspected being stolen (not m/v)’.[13]
[13] G2, 27.
There are no sentencing remarks relating to the Applicant’s offending before the Tribunal. However, details of the Applicant’s offending are set out in Police Facts Sheets which are in evidence.
The December 2021 offence
The details of this offending are set out in a NSW Police Facts Sheet, dated 12 January 2022.[14] In summary, on 12 December 2021 Mr Singh approached a photographer who was preparing for the victim’s wedding that day. Mr Singh enquired about a photo shoot for his newborn baby. He then returned to his vehicle. The photographer’s drone footage from the wedding recorded the Applicant and Mr Singh sitting in their vehicle.
[14] G2, 52.
The Applicant and her husband are shown in CCTV footage knocking and walking up and down the sides of the victim’s house. At 9pm the Applicant and Mr Singh are seen to emerge from the victim’s residence carrying bags containing property. When the victims returned to their property at approximately 1am the following morning, they noticed a window blind in the rear room was not attached properly and the window was askew and discovered their property had been rifled though and items of property were stolen. The property, with an estimated value of $10,000, also had significant sentimental value.
The police facts state that:
The co-accused provided police with signed consent to conduct a search of his premises where the accused also resides. During the search of the premises police located multiple items of clothing belonging to the [Applicant] and co-accused that matched those worn during the break and enter. Police also located a large amount of jewellery including necklaces, earrings, bracelets and watches police suspect to be unlawfully obtained. Police seized the items and booked them as exhibits at Riverstone Police Station.
The [Applicant] participated in electronically recorded interview … where she made admissions to entering the premises through the side window but denied any involvement of the co-accused. The [Applicant] made admissions to stealing items from the house but stated they were only inexpensive things. The [Applicant] was shown photographs of items seized at her premises, some of which she admitted were from the this break and enter…[15]
[errors in original]
[15] G2, 53.
The January 2022 offence
A facts sheet dated 12 January 2022 details offending which took place on 10 January 2022 for which the Applicant was sentenced on 16 March 2022. [16] In summary, the victim of the offending and her housemates left home at 4pm leaving the property locked and secure. When they returned at 8pm the same day the victim noticed that her bedroom had been rummaged through and that property had been stolen. The property included a jewellery box containing a pendant and silver necklace, and a money box containing approximately $5,000-7,000. Police obtained CCTV from neighbouring residences which showed the Applicant and Mr Singh walking into the rear yard of the victim’s residence. The Applicant was observed walking to the rear side window of the residence and to look through the window into the victim’s bedroom. She is seen removing the fly screen with a large kitchen knife before climbing through the bedroom window. During an electronically recorded interview, the Applicant admitted to breaking into the victim’s residence and stealing the items contained within the jewellery box.
[16] G2, 44.
The March 2022 offence
On 3 March 2022 the Applicant was arrested and charged with shoplifting at Target.[17] The NSW Police Facts Sheet dated 3 March 2022 records the details of the offending.
[17] G2, 34.
In summary, at about 5:00pm on Thursday the 3 of March 2022, the Applicant was in the women's clothing section of Target. She took items of clothing off the display racks and held them in her arms. This was observed by a witness who continued to monitor her actions.
Shortly after, the Applicant took the items of clothing to the self-checkout registers near the store’s exit. She placed the clothing on the right hand side of the self-checkout and walked over to where the Target branded plastic bags were located and removed two plastic bags. The Applicant carried the two plastic bags over to the self-checkout where she had placed the clothing down and scanned one of the plastic bags. The total came to 30 cents. The Applicant paid for this single plastic bag using a $50 note. The Applicant retrieved her change and placed the items of clothing into the two plastic bags she had obtained earlier.
The police facts state:
As this occurred, the [Applicant] was constantly turning her head and looking at staff members. The [Applicant] has also returned some clothing to a self-checkout staff member. After the [Applicant] had placed the clothing into the plastic bags, she picked the filled plastic bags up and walked through the self-checkout back out to the queue. A short time later, the [Applicant] carried the plastic bags filled with clothing back through the self-checkout registers and exited the store.
This entire incident was captured on high definition closed circuit television and observed by the witness.
The witness followed the [Applicant] and stopped her immediately after she exited the store.[18]
[18] G2, 35-36.
In relation to the March 2022 offending, the Applicant’s evidence was that she intended to pay for the goods with a combination of cash and her husband’s bank card. At the time of the offending she was on the phone to her mother. She had also taken drugs shortly before entering the store. She claims store staff generated a great deal of confusion by calling the police. The Applicant contends the Tribunal can be satisfied she did not intend to steal the items because she did not run when she was stopped by a security guard. When it was put to her that she did not have enough money to pay for the goods, she conceded that to be the case.
Asked about the January 2022 offence the Applicant accepted she was looking through the window of the premises as described in the police facts, but stated she had difficulty remembering details because it was a difficult time for her. The Applicant was asked about NSW Police Facts Sheet, dated 12 January 2023, where it is recorded that she told police she was responsible for the offending.[19] The Applicant took issue with the police facts including that she stole the jewellery box and told the Tribunal she plead guilty on the advice of her lawyer.
[19] G2, 47.
The Applicant explained that she broke into the house as stated in the police facts sheet but did not take anything because her husband dissuaded her from doing so after they had broken into the house. She said her husband told her it was the wrong thing to do and as such was adamant that nothing had been taken from the house. She indicated she took a silver anklet found in her possession, but that she had found it outside of the house.
The Applicant was questioned about the offending on 1 February 2022 which is detailed in a NSW Police Facts Sheet dated 11 February 2022 and for which she was convicted on 16 March 2022.[20] She was asked if she agreed that she had broken into the premises as stated in the police facts sheets which she denied. The police facts state that a fingerprint examination on the house indicated her fingerprints were located on the palm print on a bedroom window flyscreen and a palm print on a safe handle in the bedroom. The Applicant conceded having entered a granny flat located on the premises and indicated she may have done so in her capacity as a cleaner.
[20] SM1, 68-70.

Regarding the December 2021 offending, the Applicant denied breaking into the premises and stealing the items listed in the NSW Police Facts Sheet, dated 12 January 2022[21] Asked about the CCTV and drone footage she confirmed having walked down the street and stated she had taken items from the nature strip near the victim’s house. She said that she pled guilty on the advice of her lawyer who told her she would be sentenced to an ICO.
[21] SM1, 50-52.
Taking into account the offending for which she has been convicted by the Courts, I find the Applicant’s conduct to date to be serious. Over a relatively short period the Applicant has obtained an extensive criminal record which involves repeated break and entry and theft convictions and repeated possession of stolen goods. The Applicant’s offending is also of increasing seriousness and the cumulative effect of her conduct shows a disregard for the law.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Subparagraph 8.1.2(1) of Direction 99 provides that in considering the protection of the Australian community, I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm lessens as the seriousness of the potential harm increases. Subparagraph 8.1.2(2) provides that in assessing the risk posed by a non-citizen to the Australian community, I should consider, 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 available information and evidence on the risk of the non-citizen reoffending and evidence of rehabilitation achieved by the time of decision, with weight to be given to the time spent in the community since the non-citizen’s most recent offending.
The nature of the harm to the Australian community should the Applicant engage in further criminal conduct of the nature to that which she has engaged in previously would be serious. Further offending would be expected to cause financial harm to victims and potentially psychological harm to individuals whose homes have been entered.
In her written submission the Applicant states she has been challenged ‘mentally, emotionally, psychologically, and physically’ by being held in immigration detention and has been ‘carrying the burden of separation from her child’.[22] She submits that her experience, courses she has completed and abstinence from illicit drugs, make her at low risk of reoffending.
[22] Applicant’s SFIC at [39].
The Applicant has completed Triple P programs including ‘Understanding anxiety’, ‘Promoting emotional resilience’, ‘Setting a good example & encouraging realistic thinking’, ‘Understanding avoidance’ and ‘Responding to children’s anxiety’.[23] The Applicant claims to be pursing the next level of the program and stated she is prepared to complete more programs should she be returned to the Australian community.
[23] Applicant’s SFIC at [30].
As set out above the Applicant identified her drug use as a significant factor in her offending and claims she last used drugs prior to her arrest on 3 March 2022. She gave an account of her withdrawal and recovery from drug use following her arrest. When she was in prison, the Applicant endured physical withdrawal from heroin. Having gone through the process of withdrawal, the Applicant does not intend to use drugs again.
In evidence is a clinical report dated 29 March 2023 made by a mental health counsellor stating that the Applicant had reported relapsing into drug use.[24] A separate Department of Home Affairs incident report states that he Applicant as found with ‘suboxone strips and a small amount of white crystal-like substance’.[25] The Applicant gave evidence at the hearing that the substances found were not illicit drugs.
[24] SG4, 22.
[25] SG5, 156.
Though the Applicant’s 13-month term of imprisonment to be served by way of ICO required the Applicant to participate in drug rehabilitation, despite the Applicant having given evidence about some counselling sessions she engaged in while in detention, there is no evidence of her having engaged in any drug rehabilitation programs. Having carefully considered the evidence relating to the Applicant’s drug use, I consider there remains a genuine risk that she may use drugs again should she be in the community.
The Applicant contends that she has deep remorse for her offending which she repeatedly referred to as ‘mistakes.’ She gave evidence that the mistakes were in response to the difficult circumstances she was experiencing and her youth at the time of her offending. She regrets using drugs and the consequence it has had on her visa status. While police facts acknowledge the Applicant appeared remorseful, having heard her evidence in which she denied key aspects of the offending for which she was sentenced, I am not satisfied this is a compelling protective factor. Her evidence regarding the specifics of her offending lacked credibility. The Applicant’s evidence sought to downplay the seriousness of her offending and demonstrates a lack of insight into her criminal conduct.
Primary consideration 1 – conclusion
Taking all the circumstances into account, I find there is a real risk that the Applicant will reoffend which poses a significant risk of further substantial harm to the Australian community. This primary consideration weighs heavily against a decision that her visa not be refused.
PRIMARY CONSIDERATION 2 - FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
The second primary consideration is whether the conduct engaged in by the Applicant constituted family violence. Family violence is defined in Section 4 of Direction 99 to include violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.
As the Applicant has not committed any family violence this primary consideration is not engaged.
Primary consideration 3 – the strength, nature and duration of ties to Australia
I am required to consider the impact of the decision on Applicant’s immediate family members in Australia as well as the strength, duration and nature of any family or social links with Australian citizens, permanent residents and people who have a right to remain in Australia indefinitely.
The Applicant submits that her sister-in-law, brother in-law and their two minor children will be adversely affected by a decision not to grant her a visa.
The Applicant contends that she has healthy relationships with these family members and that she could be ‘severely affected’ if she does not have access to them.[26] The evidence suggests that the Applicant’s brother-in-law and sister-in-law are Australian citizens and I accept that each may experience emotional hardship if the Applicant is refused a visa.[27]
[26] Applicant’s SFIC at [32-33].
[27] Applicant’s SFIC at [4].
There is a dearth of evidence to indicate that the Applicant has other meaningful ties to the Australian community. She contends that she worked as a cleaner whilst studying in Australia but there is little evidence of her having made a positive contribution to the community through paid employment or other means.
This primary consideration is afforded limited weight in favour of not refusing the Applicant’s visa.
primary consideration 4 - BEST INTERESTS of MINOR children
Direction 99 requires the Tribunal to make a determination about whether refusal to grant the Applicant’s visa is in the best interests of any minor children in Australia affected by the decision. The Direction sets out a number of factors to be considered in assessing the best interests of minor children. These include the nature and duration of the relationship between the child and the person, the extent to which the person is likely to play a positive parental role in relation to the child, the likely effect that any separation from the person would have on the child, whether there are any other people who fulfil parental roles with the child, any known wishes of the child, and any evidence that the person abused or has neglected the child or that the child has otherwise suffered from trauma from the person’s actions including through exposure to family violence.
The Applicant has identified three children that will be affected by the decision to refuse her visa. Her son, AN, who was born in August 2021,[28] her niece ER who was born in 2020 and her 6-month old nephew, IW.
[28] G2, 125;
AN is currently in the care of the NSW Minister for DCJ under an interim order dated 31 December 2021. He currently holds a bridging visa while an application for a Child (Residence) (class BT) Child (subclass 802) visa is determined.[29] Whilst she has been held in immigration detention, the Applicant has had fortnightly visits with her son.[30]
[29] G2, 105.
[30] G2, 104.
In Sebastian v Minister for Immigration and Multicultural and Indigenous Affairs[31] the Full Court of the Federal Court explained it may be a rational assumption that the best interests of a child will generally be served by remaining with their parents. However, as Direction 99 makes clear, this starting point is subject to other considerations, some of which may indicate that it is not in the best interests of the child for the decision under review to be set aside.
[31] [2004] FCA 1054, [49]
The Applicant gave evidence that she planned to regain custody of AN. It is her understanding that so long as she and her husband were being held in immigration detention, they cannot have custody of AN. In the Applicant’s Statement of Facts, Issues and Contentions dated 4 June 2023, she expands upon this contention. She submits that the ‘main reason’ AN is in the care of the Minister is to avoid having the child in immigration detention in ‘in circumstances where the Department of Home Affairs [sic] has made clear in public speeches they should not be detaining children in immigration detention centres…’.[32] I do not accept this submission.
[32] Applicant’s SFIC, dated 4 June 2023.
For one thing, there is no evidence to support this contention. Secondly, the evidence is that AN was initially placed into out of home care by DCJ prior to the Applicant and her husband entering immigration detention. Further, the Applicant’s own understanding is that she is required to complete a series of ‘tasks’ before AN is returned to her care. She understands these to include not using illicit drugs, working and having a car seat.
Consistent with the Applicant’s understanding in this regard, on 19 December 2022 a Child Protection casework manager wrote in support of the Applicant and her husband being released into community detention. The DCJ manager writes:
[Community detention] would greatly assist [the Applicant and her husband’s] efforts in achieving restoration [of custody] if they were within the local Sydney community to enable them to complete necessary programs and engage with necessary services that can demonstrate that they have made significant behaviour change and be able to care for their child.’[33]
[33] G2, 102.
I accept that the Applicant would be better placed to make the changes required in order to have AN returned to her care if she was in the community.
On 20 April 2023 a DCJ manager sent an email to Australian Border Force (ABF) setting out the Department’s intended plans for AM, who is currently in foster care. The email states ‘DCJ are not in support of restoration of [AM] to his parent [sic] care’. Further, the intended plan to ‘transition’ care of AM to his paternal aunt and uncle in Sydney had ‘broken down’ after they confirmed they are no longer able to care for the child.[34]
[34] SG2, 9-10.
Following a carer assessment, DCJ determined the preferred option was to have AM placed in the care of his paternal grandparents in India. As of the time the email was sent, DCJ was in the process of ‘seeking approval to fund for the paternal grandparents to come to Australia.’ The grandparents had been granted a visa and DCJ intended to use their time in Australia to ‘fill any gaps in the overseas ISS assessments and ascertain whether it is a suitable option for [AN] to be placed with his paternal grandparents and go back to India.’ The author writes that the view of Barnardos is that should it not be suitable for AN to return to the care of his grandparents, then ‘they will be pursuing down the path of [a]doption.’[35]
[35] SG2, 10.
By email dated 22 May 2022 DCJ child protection confirmed court orders were being sought to allow for AN to be placed in the care of his grandparents and that DCJ were not seeking ‘long term orders’ for AN to remain in the care of the Minister. The author acknowledges that the proposal is in its early stages and dependent on court orders.[36]
[36] SG3, 12.
The Applicant’s evidence regarding the care of AN was inconsistent and at times unclear. She told the Tribunal that she prefers AN to be raised in an environment where he would be exposed to a traditional Indian upbringing. She claims her paternal grandparents had visited her in detention but also that she was unaware of the plans to give AN over to their care. However, she also gave evidence that she was the one who suggested to the DCJ that AN’s paternal grandparents could be potential carers. She was also not aware that her brother and sister in-law could not care for AN.
Circumstances and the plans being pursued by DCJ may change and it is not inconceivable that the Applicant may assume care of AN should she be returned to the community. However, based on the evidence I do not consider AN would be returned to the care of the Applicant in the first instance.
The Applicant currently spends an hour each fortnight with AN, which he reportedly enjoys. Should the Applicant be returned to India, and AN allowed to remain in Australia, AN and the Applicant may be separated. This is a genuine possibility should AN not be placed into the care of his grandparents.
Regarding her niece ER and nephew IW, I consider that both may be affected by the Applicant not being granted a visa. Though the Applicant has yet to meet IW, she lived with ER and her parents when ER was an infant and enjoys a bond with the child having lived with and occasionally caring for her when she was an infant. The Applicant has been absent from the lives of both children, and there has been limited meaningful contact between them. Nonetheless, I accept that it is in the best interests of ER and IW that the Applicant is not refused a visa.
I am satisfied that the best interests of the minor children favour the Applicant. However, having regard to the current care arrangements for the children and the Applicant’s significant absence due to imprisonment and detention, I afford this consideration limited weight in favour of not refusing the Applicant’s visa.
primary consideration 5 - Expectations of the AUstralian community
Paragraph 8.4 of the Direction requires me to consider the expectations of the Australian community. Subparagraph 8.4(1) relevantly states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
In FYBR v Minister for Home Affairs[37] (FYBR) the Full Federal Court decided by majority that it is not for the decision-maker to assess what the expectations of the Australian community are for the purpose of applying this consideration. That is, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the expectations of the community that decision makers are required to consider are those set out at paragraph 11.3 of Direction 65, the direction considered in that case which is analogous to paragraph 8.4 of Direction 99.
[37] [2019] FCAFC 185
The Direction lists specific conduct which the Australian community expects would raise serious character concerns and an expectation that the person would not hold an Australian visa.
Having regard to the provisions of Direction 99 and the Applicant’s criminal offending, I find that the community’s expectations weigh in favor of the Applicant being refused a visa.
Other relevant considerations set out in Direction 99
The legal consequences of the decision under section 501 or 501CA
International non-refoulement obligations will generally not be relevant where the Applicant has not raised such obligations for consideration and the circumstances do not suggest a non-refoulement claim is enlivened.
Extent of Impediments if removed
I am required to consider the extent of any impediments that the Applicant may face if removed from Australia in establishing herself and maintaining basic living standards in India in the context of what is generally available to other citizens of that country.
The Applicant was born in India where she resided until arriving in Australia in March 2020 at age 24.[38] She is now age 27 and relatively young.
[38] G2, 132.
Her father has passed away and her mother lives alone. She has a brother who is in the army. Her mother and father in-law are resident in India, and she also has aunts and uncles and a grandfather in India, as well as her husband’s extended family.
A mental health counsellor note dated 11 July 2022 records the Applicant reported her husband’s family was ‘still in war’ with her own family in India and that her father in-law had threated to kill her if she ever returns to India.[39] When asked about the report during the hearing, the Applicant adamantly denied having been threatened. I accept her evidence that she has a good relationship with her husband’s family and had spoken to her father-in-law the morning of the hearing.
[39] SG4, 93.
The Applicant has had issues with drug use including heroin. She claims to have rehabilitated and no longer uses illicit drugs but the extent of her rehabilitation is uncertain. Should she require assistance regarding her rehabilitation there is no evidence to indicate that she would not be able to access the same level of support as other Indian citizens.
The Applicant gave evidence that she does not suffer from any physical illnesses but suffers from depression and anxiety for which she receives counselling. Having previously been medicated for anxiety, the Applicant no longer receives treatment for her mental health conditions. Should she require treatment for her mental health once again, I acknowledge that the standard of care she would have access to in India would likely be less than what she has received in Australia.
I do not consider she is likely to face any cultural or language barriers upon her return to India, having lived there until she was 24 years old. She holds a diploma and was employed prior to her coming to Australia.
Overall, this consideration is given very limited weight in favour of the Applicant.
CONCLUSION
In determining if there is another reason not to refuse to grant the Applicant a visa, I am required to balance the considerations in Direction 99 weighing against the Applicant with considerations which weighs in favour.
The Applicant’s offending was serious, and I consider there to be a substantial risk that the Applicant may reoffend. As such, the protection of the Australian community is afforded significant weight against the Applicant. The expectations of the Australian community also weigh in favor of refusing the visa.
The best interests of the minor children affected by this decision weigh in favor of the Applicant. However, for the reasons I have outlined, this consideration is afforded less weight as the Applicant’s infant son is likely to remain in the care of DCJ in the first instance. The Impediments she may face should she be removed to India and the Applicant’s links to the Australian community also favor the Applicant but are afforded little weight.

On balance, I find that the correct and preferable decision is to refuse to grant the Applicant the visa.
DECISION
The reviewable decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs dated 3 April 2023 to refuse the Applicant a Bridging E (Class WE) visa is affirmed.

I certify that the preceding 94 (ninety-four) paragraphs are a true copy of the reasons for the decision herein of

........................................................................
Associate
Dated: 27 June 2023

Date(s) of hearing: 14-15, 19 June 2023

Applicant: In person

Solicitors for the Respondent: Ms E. Letcher-Boldt, Clayton Utz

[2023] AATA 1918

27 June 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Date(s) of hearing:	14-15, 19 June 2023
Applicant:	In person
Solicitors for the Respondent:	Ms E. Letcher-Boldt, Clayton Utz