Korat and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2023] AATA 1725
•20 June 2023
Korat and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 1725 (20 June 2023)
Division: GENERAL DIVISION
File Number(s): 2023/2056
Re:Sanjay Kulabhai Korat
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Antoinette Younes
Date: 20 June 2023
Place:Sydney
The Tribunal affirms the decision under review.
.................................[SGD].......................................
Deputy President Antoinette Younes
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction No. 99 – nature and seriousness of offending conduct – protection of the Australian community – family violence committed by the non-citizen – expectations of the Australian community – impediments to removal – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 43
Migration Act 1958 (Cth) ss 36, 189, 197C, 198, 499, 501, 501CA
CASES
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
GBV18 v Minister for Home Affairs [2020] FCAFC 17
Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580
Ibrahim v Minister for Home Affairs [2019] FCAFC 89
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Nepata v Minister for Home Affairs [2019] FCA 1197
Patterson and Minister for Home Affairs (Migration) [2019] AATA 5175
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
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
Deputy President Antoinette Younes
20 June 2023
BACKGROUND
The Applicant is an Indian national who was born on 17 June 1980, in the village of Bhadurgad, in the state of Gujarat, India.[1] He first arrived in Australia on 23 April 2009 as the holder of a Student (Class TU) (subclass 572) visa.[2] On 13 March 2019, the Applicant was granted an Employer Nomination Scheme (Class EN) (subclass 186) visa (the visa).[3] The Applicant has departed Australia on four occasions since arriving in Australia in 2009 for periods of up to approximately two months.[4]
[1] Signed Statutory Declaration of the Applicant dated 29 May 2023, Ex 19.
[2] G14, 84, Ex 22.
[3] G12, 74, Ex 22.
[4] G14, 83-84, Ex 22.
The Applicant married his wife, Ms Pillaviben Sanjay Korat, in 2006 and he has a daughter born in India in 2007 and a son born in Australia in 2013.[5]
[5] Signed Statutory Declaration of the Applicant dated 29 May 2023, Ex 19.
The Applicant has the following criminal history:[6]
·On 30 August 2018, the Applicant was convicted of driving with middle range PCA, for which he was fined $800 and disqualified for six months.
·On 24 August 2020, the Applicant was convicted of common assault (DV), and he was sentenced to a 12 month community corrections order.
·On 5 February 2021, the Applicant was convicted of use carriage service to make hoax threat, and he was sentenced to two years of imprisonment, expiring on 3 February 2022, but to be released at the expiration of 12 months from the commencement of the sentence conditionally upon him entering into recognizance to be of good behaviour for a period of 3 years thereafter.
·On 12 April 2021, the Applicant was convicted of common assault (DV) and contravene prohibition/restriction in AVO (Domestic), and he was sentenced to six months imprisonment, expiring on 11 October 2021.
[6] NSW Department of Corrective Services Conviction, Sentences and Appeals Ex 5; G6, 34-35, Ex 22.
On 24 March 2021, the Applicant's visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act). The delegate determined that the Applicant did not meet the character test under s 501(6)(a) because he has a 'substantial criminal record' on the basis of having been sentenced to a term of imprisonment of 12 months or more and was serving a sentence of imprisonment, on a full-time basis, in a custodial institution for an offence against Australian law.[7]
[7] G12, 74-79, Ex 22.
The Applicant made representations and on 28 February 2023, the delegate found that the power under subsection 501CA(4) of the Act to revoke the cancellation under s 501(3A) of the Act was not enlivened.[8]
[8] G5, 12-33, Ex 22
On 31 March 2023, the Applicant lodged an application for review with the Administrative Appeals Tribunal (the Tribunal).
LEGISLATION
Section 501(3A) of the Act compels the Respondent to cancel a visa in certain circumstances:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)…; and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record.’
Section 501(7) of the Act provides:
(7)For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
(e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
(f)the person has:
(i)been found by a court to not be fit to plead, in relation to an offence; and
(ii)the court has nonetheless found that on the evidence available the person committed the offence; and
(iii)as a result, the person has been detained in a facility or institution.
Section 501CA of the Act applies if the Respondent makes a decision under subsection 501(3A) of the Act to cancel a visa that has been granted to a person.
Section 501CA(4) of the Act confers on the Respondent the discretion to revoke the Mandatory Visa Cancellation Decision under s 501(3A).
Section 501CA(4) provides:
(4)The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
MINISTERIAL DIRECTION NO. 99
The Respondent is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. Except for the Respondent acting personally, the Direction must be applied by all decision-makers, such as the Respondent’s delegates and the Tribunal.[9]
[9] s 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69 [4].
On 23 January 2023, the Respondent signed 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). The Direction commenced on 3 March 2023 and revoked the previous Direction 90.
The following principles in paragraph 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(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)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 measurable 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 noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen'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 measurable risk of causing physical harm to the Australian community.
A decision-maker must take into account the considerations identified in paragraphs 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction identifies the following as primary considerations:
(1)Protection of the Australian community from criminal or other serious conduct;
(2)Whether the conduct engaged in constituted family violence;
(3)The strength, nature and duration of ties to Australia;
(4)The best interests of minor children in Australia; and
(5)Expectations of the Australian community.
Paragraph 9 of the Direction identifies the non-exhaustive list of other considerations:
(1)Legal consequences of the decision;
(2)Extent of impediments if removed;
(3)Impact on victims; and
(4)Impact on Australian business interests.
Paragraph 7(1) provides that, when taking the relevant considerations into account, “information and evidence from independent and authoritative sources should be given appropriate weight.” Paragraph 7(2) provides that primary considerations “should generally be given greater weight than the other considerations.”
Material before the Tribunal
The Tribunal has the following material before it:
·The Applicant’s and Respondent’s Statements of Facts, Issues and Contentions (SOFIC);
·NSW Department of Corrective Services Convictions, Sentences, and Appeals;
·Offender Schedule – Programs/Services;
·Corrective Services NSW Facts Sheet - Classification and Placement;
·Reports and Resume of Mr Patrick Sheehan (Psychologist);
·Ms Pillaviben Korat’s Australian citizenship and application letter;
·Applicant’s Indian police clearance certificate;
·School reports for the Applicant’s daughter;
·Unsigned and signed Statutory Declarations of the Applicant, Ms P Korat, and Mr N Patel;
·Department of Foreign Affairs and Trade Country Report India dated December 2020, page 60;
·Photographs of the Applicant with family;
·Respondent’s G-Documents and Supplementary G-Documents, which include various clinical reports – as discussed below.
All of these documents formed Exhibits 1-23.
FINDINGS AND REASONS
The character test is defined in s 501(6) of the Act. It is fair to say that the character test is generally concerned with the protection of the Australian community from the risk of harm. The character test deems persons to be of bad character if they fit any of the criteria listed.
A person does not pass the character test only if one of the paragraphs in s 501(6) applies to that person. In this case, the delegate determined that the Applicant did not meet the character test under s 501(6)(a) because he has a 'substantial criminal record' on the basis of having been sentenced to a term of imprisonment of 12 months or more and was serving a sentence of imprisonment, on a full-time basis, in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory.[10]
[10] G12, 74-79, Ex 22.
It is not in dispute that the Applicant does not meet the character test. The issue before the Tribunal is whether the cancellation of the visa should be revoked.
The purpose of the Direction is to guide decision-makers exercising powers under the Act. Delegates and the Tribunal must generally follow the Minister’s Direction. However, the Direction does not dictate the way in which the discretion is to be exercised, but rather it creates a framework within which the discretion vested in the decision-maker is lawfully exercised. The Direction identifies certain principles which provide a framework within which decision-makers should approach their task.[11] It prescribes relevant considerations which must be taken into account. It provides guidance only as to the manner in which they are to be balanced. The Direction assists decision-makers with a width of discretion that enables them to take into account different circumstances that may arise in order to reach a finding that is fair and rational in all the circumstances, taking into account crucial considerations.[12]
[11] Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [80]–[81]. The Court was discussing Direction No 55, but the reasoning applies equally to Direction No 99.
[12] Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [83].
The Direction does not determine rules of general application, but gives directions to the decision-maker, including the Tribunal, as to the policy to be applied in the exercise of the discretion conferred on it by s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) in exercising the power conferred by ss 501 and 501CA of the Act. The Direction does not derogate from the Tribunal’s duty to reach the correct or preferable decision in the particular case before it; the Direction has that end as its purpose.[13]
[13] Uelese v Minister for Immigration and Border Protection [2016] FCA 348 [50].
While decision-makers are bound to take into account certain considerations, they are not limited to those set out in the Direction.[14] The Direction specifies the relative, but not the actual, weight to be given to those considerations. To that extent, it imposes requirements on the exercise of the Tribunal’s discretion, but the Tribunal is obliged to examine the merits of the case and decide for itself.[15] The weight to be given to any particular matter is a matter for the decision-maker and cannot be the subject of some formulaic approach.[16] Phrases such as ‘should generally be given greater weight than the other considerations’ and ‘one or more primary considerations may outweigh other primary considerations’ have been interpreted as provisions that are intended to provide guidance to the decision-maker as to how the balancing exercise required by the Direction should be approached. These phrases leave it open to the decision-maker to adopt a different approach in the exercise of discretion in the individual case.[17] It is not the content of the Direction which determines the outcome of the exercise of the discretion, but rather its application by a decision-maker to the evidence and material in an individual case.[18]
THE PRIMARY CONSIDERATIONS
[14] GBV18 v Minister for Home Affairs [2020] FCAFC 17.
[15] See Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [21].
[16] Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580 [127].
[17] Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [83].
[18] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461 [78].
Protection of the Australian community from criminal or other serious conduct
The Direction contemplates that decision-makers should have particular regard to the principle that ‘entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that that they are, and have been law abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community.’[19] It indicates that decision-makers should also give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.[20] Whether there is a risk that a person would engage in specified conduct requires an evaluative judgment by the decision-maker. If the decision-maker is so satisfied, they have a discretion to refuse or cancel a visa, or revoke a visa cancellation.[21]
[19] Direction No 99, [8.1(1)].
[20] Direction No 99, [8.1(2)].
[21] See Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 [2]. The Court considered s 501(1), but the reasoning also applies to ss 501(2) and 501(3A).
The seriousness of the Applicant’s conduct
As mentioned earlier, the Applicant has been convicted of the following offences:
·On 30 August 2018, the Applicant was convicted of driving with middle range PCA, for which he was fined $800 and disqualified for six months.
·On 24 August 2020, the Applicant was convicted of common assault (DV), and he was sentenced to a 12 month community corrections order.
·On 5 February 2021, the Applicant was convicted of use carriage service to make hoax threat, and he was sentenced to two years of imprisonment, expiring 3 February 2022, was sentenced to two years imprisonment, but to be released at the expiration of 12 months from the commencement of the sentence conditionally upon him entering into recognizance to be of good behaviour for a period of 3 years thereafter.
·On 12 April 2021, the Applicant was convicted of common assault (DV), and contravene prohibition/restriction in AVO (Domestic), and he was sentenced to six months imprisonment, expiring on 11 October 2021.
On 21 March 2021, the delegate sent to the Applicant a Notice of visa cancellation under section 501(3A) of the Migration Act 1958, specifying the conviction on 5 February 2021 and noting that as a consequence, the delegate is not satisfied that the Applicant met the character test.[22] Although other convictions are relevant and they are not disputed, it is the conviction of use carriage service to make hoax threat that enlivened the cancellation power under s 501(3A).
[22] G12, 74-79, Ex 22.
The circumstances of the offence are that on 25 March 2019 at about 5.05am Australian Eastern Daylight Time, Singapore Airlines flight SQ423 departed Mumbai en route to Singapore with passengers, including the Applicant’s mother and son.[23] They were booked to join a connecting flight to depart Singapore to Sydney. There is a requirement in India that in the case of minor children travelling without their parents, the parents must give permission to authorise the travel. There was no such authorisation in this case, and as such, the Applicant’s mother and son could not join the flight.
[23] As summarised in Bennett J sentencing on 5 February 2021, G8, 44-52, Ex 22.
A ground staff of Singapore Airlines assisted and provided his private mobile telephone number in order for the Applicant to authorise the departure through WhatsApp. Shortly prior to the departure of the flight at 11.30pm Mumbai time, the staff member received a message on WhatsApp from an Australian telephone number, the same number used by the Applicant in the commission of the offence. The message contained the authorisation signed by the Applicant and his wife.
Two calls were made on 26 March 2019 to Mumbai International Airport Limited and received by an employee of the Airport, stating that there was a bomb onboard flight number SQ423. Parts of those calls were abusive.
As a result of these telephone calls, the employee contacted the authorities, including a bomb threat assessment committee which followed relevant flights being on high alert, and the captain of flight SQ423 informing passengers of the onboard bomb threat. The passengers were not permitted to disembark following the emergency landing in Singapore until security personnel had given the necessary clearance. Two F16 planes operated by the Republic of Singapore Air Force for the landing in Singapore were dispatched. There were 263 passengers and 18 crew on the flight when the bomb threat was made and the flight was delayed by 30 minutes as a result of the threat. The aircraft's following flight was delayed by two hours and these delays had several flow-on effects on other aircraft and passengers, including 29 passengers who missed their connecting flights.
On the evening of 26 March 2019, the Applicant attended Sydney International Airport to collect his mother and son, but unknown to him, they had been removed from the flight in Singapore. He was arrested at 9.00pm and he acknowledged that “I shouldn’t have told them a bomb was on the plane.”[24] He participated in an interview, during which he made admissions. He also advised that he was not intoxicated at the time he made the threats, but that he had consumed three whiskies the night before. He was observed to be cooperative but “demonstrated no remorse, maintaining that the blame for his actions could be attributed to Mumbai International Airport Limited and Singapore Airlines.”[25]
[24] G8, 51, Ex 22.
[25] G8, 51, Ex 22.
The Applicant referred to his sentencing on 5 April 2021 in his SOFIC,[26] in relation to the of use carriage service to make hoax threat. The Applicant noted the Court’s decision,[27] as follows:
“Sanjay Kalubhai Korat pleaded guilty in the Local Court from whence he was committed to the District Court for sentence upon one charge contrary to s 474.16 Criminal Code Act 1995 shortly stated as using a carriage service to make a hoax threat.
The maximum penalty to which the offender is exposed for this offence is imprisonment for ten years.[28]
Being an offence contrary to Federal law there is no standard non-parole period consideration to be brought to account. However, this case requires consideration of the extent to which it might be shown that the offender's moral culpability for his wrongdoing is mitigated by chronic alcoholism which afflicted him from before the occasion of this conduct.[29]
The offender pleaded guilty early in the proceedings; the Crown concedes that as a matter that must be brought to account in accordance with the legislation in Part IB Crimes Act 1914 (Cth).… I shall apply a discount of 25% to the sentence that would have otherwise been imposed upon the offender.”[30]
[26] Applicant’s SOFIC, Ex 1.
[27] G8, 45-50, Ex 22.
[28] G8, 41, Ex 22.
[29] G8, 42, Ex 22.
[30] G8, 45, Ex 22.
The Applicant accepted that his conduct “must be regarded as serious. This is evidenced by the sentence of two years with a non-parole period of 12 months.”[31] The Applicant further accepted that should he engage in conduct similar to that, “there would be a significant risk of harm to members of the community. In addition, significant public resources would be expended in dealing with his conduct.”[32]
[31] Applicant’s SOFIC, [18], Ex 1.
[32] Applicant’s SOFIC, [20], Ex 1.
The Respondent contended that the Applicant’s offence of “use carriage service to make hoax threat should also be considered to be very serious.”[33] The Respondent referred to the sentencing remarks that:
"when one considers the terms of the conversation in which the offender engaged and the consequences that were imposed upon the passengers on the subject aircraft, the authorities called upon to respond, and the disruption to the travel of those on the plane and the travel of those in train to depart later, the seriousness of this behaviour rises as I indicated without more to mid-range."[34]
[33] Respondent’s SOFIC, [21], Ex 2.
[34] G8, 46, Ex 22.
The Respondent contended that the sentencing Court’s remarks support that the offending is very serious and that the seriousness of the offending is reflected in the prison sentence imposed, whereby the imposition of a custodial term is regarded as the last resort in any reasonably applied sentencing process. The Respondent submitted that custodial terms must be viewed as a reflection of the objective seriousness of a given offence committed by an applicant.[35]
[35] Respondent’s SOFIC, [23]-[25], Ex 2.
The Tribunal is of the view that the Applicant engaged in conduct that adversely impacted public resources, many individuals including airports’ and airline staff, as well as 263 passengers. The sentencing Court took on notice that there would have been passengers with increased anxiety and distress by reasons of those events.[36] The Tribunal observes that upon landing in Singapore, 169 bags and six containers on board had to be reverse security screened.[37] The Direction contemplates that serious conduct includes “crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties.”[38] The Applicant’s criminal offending was against many individuals including representatives of authorities, including the Australian authorities and the staff of the two F16 planes operated by the Republic of Singapore Air Force for the landing in Singapore that had to be dispatched.
[36] G8, 52, Ex 22.
[37] G8, 52, Ex 22.
[38] Direction 99, [8.1.1(1)(b)(ii)].
Although one might argue that a two-year sentence is not relatively long, on the evidence and given the adverse impact on many individuals, the Tribunal finds that the Applicant’s conduct is very serious. The Respondent contended that while the Applicant has not been a frequent offender, there has been a trend of increasing seriousness with the Applicant first committing a drink driving offence in 2018 and subsequently being charged with the use a carriage service for a hoax threat. The Respondent further noted that the Applicant has provided false information to the Department, having not declared his drink driving offence on his incoming passenger card dated 26 December 2018.[39] Although the grounds for cancellation of the Applicant’s visa was not based on the provision of incorrect information, but rather on the conviction in relation to the offence of the use a carriage service for a hoax threat, this is relevant information before the Tribunal. The Tribunal is satisfied that there is merit in the Respondent’s submissions, and the Tribunal finds that the seriousness of the Applicant’s conduct has escalated. However, this does not mean that the Tribunal does not view drink driving and domestic violence offences very seriously; a drink driving offence is serious as it could have significant adverse impacts, including injury and death, on the driver concerned and/or other road users.
[39] G15, 85, Ex 22.
The Direction contemplates that acts of domestic violence are to be viewed ‘very seriously.’
The evidence indicates that the Applicant has been convicted of common assault (DV) on 24 August 2020 and on 12 April 2021. He has also been convicted on 12 April 2021 of contravene prohibition/restriction in AVO (Domestic), and he was sentenced to six months imprisonment. The two offences of common assault were perpetrated by the Applicant on his wife, Ms Korat, within a short period of time, are very significant and could suggest many things. This includes not learning from one’s mistakes, lack of insight and self-control, anger management issues, and so on.
The Tribunal observes that in relation to the common assault offence that occurred on 10 July 2020, the NSW Police Facts Sheet[40] records that the Applicant was heavily intoxicated when he attempted to hit Ms Korat, who gave evidence in the course of the hearing about how she felt about being a victim of domestic violence. In relation to the events of 6 September 2020, the NSW Police Facts Sheet refers to the Applicant slapping Ms Korat to the head several times causing pain, and grabbing her wrist causing scratches to her arms.[41]
[40] G7, 37, Ex 22.
[41] S9, 89-91, Ex 23.
The Tribunal acknowledges that Ms Korat attended the hearing and expressed her unconditional support to the Applicant and her intention to reunite with him (they are separated but technically still married). The Tribunal does not consider Ms Korat’s support to be undermining of the seriousness of the Applicant’s offending conduct; she recognises the seriousness. The Tribunal is of the view that human nature is complex, involving a journey of conflicting emotions and behaviours. The Tribunal views Ms Korat’s support as being an indication of a decent person who is trying to do what she perceives to be best for her children, as she considers having the Applicant in their lives to be an important aspect.
The Tribunal acknowledges Ms Korat’s strength and willingness to work through difficulties with the Applicant. However, the Tribunal views with concern her comments in the hearing that she would reunite with the Applicant “today.” The couple has been separated since November 2019 and it is odd that when she was asked about any intention to reunite, she said “today,” potentially suggesting lack of adequate consideration of her relationship with the Applicant. In any event, the Tribunal cannot predict the future, but the Tribunal does not consider any potential reunion to underestimate the seriousness of the common assaults Ms Korat endured. The Applicant’s domestic violence offences against Ms Korat are very serious and reflect the magnitude of his criminal conduct.
For those reasons, the Tribunal is satisfied that the nature and seriousness of the Applicant’s criminal offending weigh heavily against revocation.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The Direction states that decision-makers must have regard to the following considerations 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 on the risk of the noncitizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
c) where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The Applicant has contended that the risk of his reoffending is low. The Applicant concedes that the contributing factor in all of his offending is alcohol. He advances the argument that his record of behaviour while incarcerated, his participation in education courses, and minimum security classification, are all evidence of his rehabilitation.[42]
[42] Applicant's SOFIC, 8, Ex 1.
The Respondent has contended that it cannot be accepted that the Applicant has been rehabilitated. The Respondent contended that there is a risk the Applicant will reoffend, which is unacceptable, and that any reoffending would expose the Australian community to significant physical, psychological and financial harm.[43] The Direction contemplates that some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.[44] In some circumstances, it may be permissible to conclude that any type of continued offending increases the risk of further violent offending.[45] The Tribunal needs to consider the likelihood and consequences of further offending.[46]
[43] Direction No. 99, [8.1.2(2)(a)].
[44] Direction No. 99, [8.1.2(1)].
[45] Nepata v Minister for Home Affairs [2019] FCA 1197 [30].
[46] Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 [95].
There are clinical reports including those from the James Fletcher/Mater Mental Health Services[47] and a report of Ms Deborah Flowers dated 21 October 2019,[48] which refer to the Applicant’s alcohol misuse and admissions. There are reports by Dr Christopher Bench, Forensic Psychiatrist, dated 14 April 2020 and 30 November 2020,[49] who referred to the Applicant’s alcohol misuse as being in the ‘severe range’ and to the Applicant’s depression.[50] The Tribunal notes the following comments by Dr Bench:
“Sanjay initially said he had no alcohol in 150 days. On the other hand it was pointed out the collateral materials would appear to suggest he was intoxicated, including at the time of his most recent arrest…I was unable to deduce his alcohol use between April and September 2020…”[51]
[47] G24, 117-122, Ex 22.
[48] G23, 116, Ex 22.
[49] G26, 130-141, Ex 22; G27, 142-150, Ex 22.
[50] G27, 148, Ex 22.
[51] G27, 143, Ex 22.
Dr Bench noted the Applicant’s past attempts in the community of two detoxification programs, and that the longest time the Applicant has been sober in the community was five months.[52]
[52] G26, 132, Ex 22.
Dr Bench recommended ongoing psychiatric supervision and treatment for the Applicant’s depression, which would “decrease his risk of relapse and thus also decrease his risk of recidivism…would likely be the most effective clinical means to decrease his risk of recidivism…In the converse, if he was to resume alcohol use, his risk of recidivism would be increased.”[53]
[53] G27, 149-150, Ex 22.
There is a report dated 1 May 2020 of Dr Andrew Ellis, Forensic Psychiatrist,[54] who concluded that the Applicant meets the criteria for an alcohol abuse disorder. Additionally, Dr Ellis concluded that the Applicant suffers from depression, from which he was “in remission from active symptoms of a major depressive disorder.”[55]
[54] G25, 123-129, Ex 22.
[55] G25, 128, Ex 22.
There is a report from Dr Georgina Cheng, Consultant Psychiatrist dated 22 November 2019 referring to his admission at Calvary Mater Hospital from 7 – 12 November 2019 and that upon discharge, “he started drinking heavily again.”[56] A medico-legal report of Mr John Wills, Clinical Nurse Consultant, dated 9 September 2020 confirmed the Applicant’s alcohol misuse.[57]
[56] S6, 79, Ex 23.
[57] S11, 93-94, Ex 23.
There is a report by Mr Aidan Roe, Community Corrections Officer, dated 9 April 2021. Mr Roe concluded that the Applicant is a “medium risk of reoffending.”[58] There are International Health and Medical Services (IHMS) records indicating that the Applicant has received psychiatric and psychological support,[59] including mental health and GP consultations. Two sentencing assessment reports dated 14 August 2020 and 4 February 2021 repeated the assessment that that the Applicant is a “medium risk of reoffending.”[60] In a sentencing assessment report dated 10 January 2021, it was noted that the Applicant was exited from the rehabilitation program “for refusing to engage in a meaningful manner.”[61]
[58] S12, 97, Ex 23.
[59] S4, 5-73, Ex 23.
[60] S12, 97; S14, 103, Ex 23.
[61] S13, 99, Ex 23.
In an Incident Detail Report generated on 26 May 2023, it was reported that on 20 January 2023, the Applicant was witnessed throwing food around the Community Dining room, becoming “aggressive” and making threats of assault against an officer. The incident was classified as a “Minor Incident,” during which the Applicant was witnessed, among other things, “stating to ERT Officers that they are “pussy”, he would fight them on the outside, and swinging his hand towards ERT Officer MAROZAU’s face.”[62]
[62] S5, 77-78, Ex 23.
In his signed Statutory Declaration of 29 May 2023, the Applicant indicated that:
“I had a long abstinence from alcohol. I have been sober since my arrest and it is over two years firstly in prison and currently in immigration detention which made me realise that I would be better without drinking alcohol and have a clear vision about my life and responsibilities as a father.”[63]
[63] Signed Statutory Declaration of the Applicant dated 29 May 2023 [42], Ex 19.
During the hearing under cross-examination, there was a reference to IHMS’ notation added on 24 January 2023 that the Applicant had reported being “sober for few months in corrections, admits to drinking home brew in VIDC…reported had few bad news on the day he had few drinks.”[64] The Applicant referred to this incident as a relapse.[65] In relation to the Statutory Declaration of 29 May 2023, where the Applicant had indicated that “[he] had a long abstinence from alcohol. [he] have been sober since [his] arrest…” the Applicant conceded that it was incorrect. He stated “yes, I agree I lied and I would like to seek for apology for that.”[66]
[64] S4, 20, Ex 23.
[65] Transcript 2 June 2023, 43, [40]-[45].
[66] Transcript 2 June 2023, 45, [5].
In relation to the drinking incident in January 2023, the Applicant explained that:
“…that day, like, I was really stressed because, like, I was there for 11 months, and nothing was actually working for me, and before that I was one year in jail, and I was very far away from my family, so in India, my father and sister - they both were detected with cancer, and I was - they were in financial need, and I couldn’t even support them, so I was too stressed at that time, and that’s the reason, like, I relapsed. And I couldn’t meet my younger sister as well. She passed away on 17 March, and I couldn’t even meet her last time.”[67]
[67] Transcript 2 June 2023, 44, [5].
A report by Mr Patrick Sheehan, Forensic Psychologist, dated 11 May 2023 provides a detailed assessment based on his examination of the documents and interview with the Applicant, concluding that:[68]
“The overall totality of evidence suggests to me that Mr Korat would be reasonably considered to be within the low risk category of violent offending relative to other adult male offenders. There are no other considerations that cause me to depart from the scoring range on the VRS tool. His substance use in the community needs to be extinguished entirely, and a harm minimisation approach (or controlled drinking) would not be recommended.”
[68] Report by Patrick Sheehan dated 11 May 2023, Ex 8.
Mr Sheehan’s evidence in relation to the drinking incident in January 2023, which took place prior to his assessment, is highly relevant:
“… in my risk assessment report, you will see that I - that there’s a paragraph - as I’m doing the preamble to the risk assessment - there’s a - there’s a paragraph where I’ll state - I’ll just look it up, just for - just for thoroughness - where I say, ‘Should Mr Korat demonstrate any further remediation or escalation of these factors, it is recommended that the VRS be readministered.’ Risk assessments tend to have a - a fairly short shelf life, in terms of - of - of - they could - the opinions tend - tend to change, over time, depending on - on how the person progresses. So that is relevant. I didn’t have that information at the time, and - when I assessed Mr Korat, and indeed, he had - he had advised me that he had no troubles, and - and no - no problems, in - in - in the detention centre. And that is relevant to the scoring. So it - it does bring into question the scoring of the VRS, and, you know, by rights, that should probably be rescored again. I - I had anticipated I would have been asked questions about - about this, so I had a bit of a read through my material, and the scoring, prior to giving evidence this afternoon. And it - it seems to me, looking through all of the - the 20 items, that I probably would, taking that information into account, increase his score on a number of those indices. But, in order to get out of the lowest of the low range, he would - he would need to - I think it’s - it’s - to have another 12 points added to his score. But I - on a first review, I don’t think he would get there. So I suspect that, if I - if I were to redo that - instrument in full, which I haven’t done, he would still land in the low range. That’s towards the upper end of the low range. At worst, he could go into the low end - lower end of the medium range but I really can’t see that he would add another 12 points based on this one incident.”[69]
[69] Transcript 2 June 2023, 67-68, [30]-[45], [5]-[15].
Mr Sheehan was cross-examined extensively about the Applicant’s consumption of the home brew at Villawood Immigration Detention Centre (VIDC) and he acknowledged that the Applicant did not disclose this at the time Mr Sheehan interviewed him.[70] There is lack of clarity pertaining to the actual date of the consumption of the homebrew at VIDC, but the Applicant gave evidence that it occurred during the second or third week of January.[71]
[70] Transcript 2 June 2023, 82, [20].
[71] Transcript 2 June 2023, 84, [15].
Mr Sheehan gave evidence that he had specifically asked the Applicant if he had consumed any brews in detention, and the Applicant said no.[72] Mr Sheehan was asked if this recent information would change the assessment in relation to the Applicant’s risk of recidivism. Mr Sheehan replied:
“It would cause me to change several aspects of the report to incorporate that new information. And I’ll - I’m not finished - and as I’d explained earlier, I did give them some consideration before being examined today, and looking at the factors on the - on the VRS, and which ones I would change. And it - on a preliminary view, I think it is likely he would still remain within the lower risk range, but it would certainly bring him up a couple of - he would score several more points on various items (indistinct) reviewing that material. And to finish my answer, I couldn’t be as optimistic as I was in the conclusions of that report, given that Mr Korat - I don’t want to underplay the pressures that Mr Korat is under, being in detention post-sentence, and all of the uncertainties. I’m sure that is very difficult indeed. But he has shown that under certain circumstances, he remains vulnerable to resorting to alcohol use and then engaging in aggressive behaviour, which makes this a live issue, not a historical issue.[73]
...
I think, from my calculation, he would need another 12 or 13 points to bump into the medium-risk range, and I don’t think that incident alone would be sufficient to get that. You know, from a preliminary view, I think he would probably get - I think it’s five to seven more points on the instrument taking into account new information. With the caveat that this is not how I do risk assessment, and this is not how risk assessment is done. Having a quick review of the documents, on the fly, and then giving evidence on it. This is not how we do things. How I do things is to make an appointment, schedule it, do an interview, review the material, and then writhe the report in an organised fashion.”[74]
[72] Transcript 2 June 2023, 82, [30].
[73] Transcript 2 June 2023, 84, [25]-[35].
[74] Transcript 2 June 2023, 84, [40]-[45].
When the Tribunal asked Mr Sheehan if the concession that the Applicant has been untruthful with him would change his assessment of risk, Mr Sheehan replied:
“Not so much. What it does is, it reduces the confidence we can have on his self-report, which - it is quite common. In most of the context that I’m undertaking assessments, the stakes are so high for people in immigration or in pre-sentence, or release, or in high-risk offenders legislation. They’re naturally very motivated to present positively. The danger for Mr Korat is the extent to which his lack of openness with me reflects a lack of appraisal for himself, that is, his ability to accurately appraise himself and his decisions and his actions. That is germane to risk, as it is through poor appraisal that he allows himself to make decisions that are destructive to himself and those around him.”[75]
[75] Transcript 2 June 2023, 85, [5]-[15].
The evidence before the Tribunal is that the Applicant has been untruthful about a significant issue. In his Statutory Declaration to the Tribunal dated 29 May 2023, the Applicant did not disclose the consumption of alcohol at VIDC in January 2023. The Tribunal is very concerned that in a Statutory Declaration as recent as 29 May 2023 to the Tribunal, the Applicant was untruthful. His apology is not convincing. He was also untruthful with Mr Sheehan, who gave evidence that the revelation does not change much his opinion about the assessment of risk, but rather reflects on the Applicant’s lack of openness, lack of appraisal of himself, his decisions and his actions.
The Tribunal accepts as plausible that the Applicant has done a number of courses in Drug and Alcohol Abuse, Stress & Depression Management, Social Anxiety, conversation and listening skills, and conflict resolution. The Tribunal also accepts as plausible that he has attended Alcoholics Anonymous meetings and counselling services, but the cumulative evidence indicates that he has poor self-appraisal and has shown that “under certain circumstances, he remains vulnerable to resorting to alcohol use and then engaging in aggressive behaviour, which makes this a live issue, not a historical issue.”[76]
[76] Transcript 2 June 2023, 84, [25]-[35].
The Tribunal has given regard to the Applicant’s contentions that there is no “probability that [he] would engage in such offending again as [he is] completely away from such ideas of drinking alcohol in the future…”[77] and Ms Korat’s evidence that he would not reoffend. However, those contentions are not supported by the evidence before the Tribunal, including the expert briefed by the Applicant, Mr Sheehan, who acknowledged in evidence that the Applicant remains vulnerable. The Tribunal is persuaded by the Respondent’s submissions that the Applicant's use of alcohol in immigration detention is particularly concerning and is suggestive that the Applicant continues to rely on alcohol to manage his emotions.
[77] Signed Statutory Declaration of the Applicant dated 29 May 2023, [38], Ex 19.
In his SOFIC, the Applicant raised concerns about the Applicant’s:
“unexplained, lengthy immigration detention over a period of 15 months, not imposed by a court and longer than the non-parole period that was imposed by a court, one incident[78] in a stressful detention environment, cannot be regarded as significant and should be given little weight.”[79]
[78] Referring to the incident on 20 January 2023.
[79] Applicant’s SOFIC, 3, Ex 3; Applicant’s SOFIC, 3, Ex 4.
Under s 189 of the Act, an unlawful non-citizen can be detained and removed under s 198 of the Act. This is achieved without a court finding or order, but can be challenged in the usual appeal pathways. The incident reported occurred at the detention centre on 20 January 2023 when the Applicant told staff that he “felt sick and wanted to kill himself.” It is reported that he became “aggressive and made threats of assault” towards one of the staff and used abusive language to the male officers. He was “reminded of his rights and responsibilities whilst in Detention and that his behaviour was unacceptable.” No further action was taken.[80] The Tribunal observes that the incident in question was classified as minor, it did nevertheless involve aggression and threats to officers. The Tribunal has decided to give it some weight against revocation.
[80] S5, 77, Ex 23.
In his SOFIC, the Applicant referred to the previous assessments conducted in relation to the his psychological state and risk of reoffending. [81] As previously noted, in the Sentencing Assessment Report undertaken by a Community Corrections Officer, dated 6 August 2020, he was assessed as having a medium risk of reoffending in relation to using a carriage service to make a fake bomb hoax.[82] In the Sentencing Assessment Report undertaken by a different Community Corrections Officer, dated 9 April 2021, he was assessed as having a medium risk of reoffending in relation to contravening an Apprehended Violence Order and common assault.[83] The Applicant contended that the opinion of Mr Sheehan that the risk of reoffending is “low” should be given significant weight, in preference to the other reports, because it is contemporaneous and prepared by a qualified expert. Those contentions cannot be supported by Mr Sheehan’s evidence in the course of the hearing. Mr Sheehan prepared a report in the context of the Applicant not disclosing the consumption of alcohol at VIDC in January 2023. Although Mr Sheehan stated that the consumption of the alcohol and the lack of disclosure did not shift the risk to medium, it did however shift to the upper range of low risk. On the evidence, it is clear that Mr Sheehan modified his assessment potentially being in the upper low range.
[81] Applicant’s SOFIC, Ex 3.
[82] S14, 104, Ex 23.
[83] S12, 95, Ex 23.
Under the circumstances, the Tribunal is not persuaded by the Applicant’s submissions that Mr Sheehan’s report should be given significant weight, in preference to the other reports, because it is contemporaneous and prepared by a qualified expert. There are limitations to Mr Sheehan’s written observations due to the lack of disclosure about the drinking incident at VIDC, and the Tribunal has decided to give Mr Sheehan’s oral evidence weight. However, that does not mean that the assessments of the Community Corrections Officers are insignificant. On balance, the Tribunal finds that there is a low to medium risk of the Applicant engaging in further criminal conduct. Given the seriousness of the potential harm that could be caused, the Tribunal is satisfied that any level of risk is unacceptable.
In reaching those conclusions, the Tribunal has given regard to the Statutory Declaration dated 29 May 2023 of Mr Nilesh Kumar Rambhai Patel, who provided a character reference for the Applicant.[84] The Statutory Declaration, among other things, referred to the commission of the offence relating to the hoax bomb threat as being due to alcohol and that the Applicant should be given a second chance. The Tribunal gives that document limited weight as Mr Patel is not an expert.
[84] Signed Statutory Declaration of Nilesh Kumar Rambhai Patel dated 29 May 2023, Ex 21.
For those reasons, the protection of the Australian community consideration weighs heavily against revocation of the cancellation decision.
Whether the conduct engaged in constituted family violence.
The Direction refers to the Australian Government having “serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.”[85]
[85] Direction No. 99 [8.2(1)].
The Direction contemplates that in considering the seriousness of the family violence engaged in by the non-citizen, the factors that must be considered are:
·the frequency of the offending conduct;
·any trend of increasing seriousness;
·the cumulative effect of repeated acts of family violence;
·rehabilitation achieved at time of the decision since the person’s last known act of family violence (including the acceptance of responsibility, understanding of the impact of the behaviour on the victim/witness of that abuse (particularly children) and the efforts to address factors which contributed to the conduct); and
·whether the person has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement, or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour.[86]
[86] Direction No. 99 [8.2(3)].
The Applicant has been convicted of common assault (DV) on 24 August 2020 and on 12 April 2021. He has also been convicted on 12 April 2021 of contravene prohibition/restriction in AVO (Domestic), and he was sentenced to six months imprisonment.
The Tribunal observes that in relation to the common assault offence that occurred on 10 July 2020, the NSW Police Facts Sheet records that the Applicant was heavily intoxicated when he attempted to hit Ms Korat with an open hand.[87] In self-defence, Ms Korat tried to push him away as she was scared for her safety. The Applicant was convicted of common assault and received a 12-month community corrections order. He was also subject to an AVO as a result of this offence, which required him to not assault or threaten Ms Korat or go within 200m of her at for at least 12 hours after drinking alcohol.
[87] G7, 37, Ex 22.
The Applicant reoffended by making a punching motion, then slapping his wife to the right side of her head. He then went outside, grabbing her by the wrists, and again slapping her to the head several times.[88] In relation to the events of 6 September 2020, the NSW Police Facts Sheet refers to the Applicant slapping Ms Korat to the head several times causing pain, and grabbing her wrist causing scratches to her arms.[89]
[88] G10, 70, Ex 22.
[89] S9, 89-90, Ex 23.
The Applicant was convicted of common assault and contravene prohibition/restriction in AVO (Domestic) and was sentenced to six months imprisonment on both convictions.
The Applicant relied on the sentencing remarks of Magistrate Brender, who stated:
“You have now identified the link between alcohol, mental health and domestic violence. You are paying a big price for that by having a year in custody at least. I do not think any further time is going to benefit you or the community. This is still reasonably low level actual violence.”[90]
[90] G10, 70, Ex 22.
The Applicant however accepted that those offences relate to family violence, but contended that the Applicant:
“has demonstrated his remorse, the offences related to two incidents when he was suffering from a major depressive disorder and severe alcohol use disorder, and the magistrate described his offending as “reasonably low level actual violence. We contend they can be given some weight against revocation of the visa.”[91]
[91] Applicant’s SOFIC, 3, Ex 4.
The Tribunal acknowledges that the Applicant has expressed remorse and has undertaken courses which are not specifically for family violence but they include Stress & Depression management, and conflict resolution. However, that does not mean that the seriousness of the offending should be moderated. The Tribunal observes the Respondent’s position that those courses are not specific to family violence, however, the Tribunal is of the view that they are related and that it would be unreasonable to impose a restrictive categorisation.
The Respondent relied on Patterson and Minister for Home Affairs:[92]
“Legal authority also militates strongly against violence against women, especially in a domestic context. This Tribunal, in the matter of Mendoza and Minister for Immigration and Border Protection [2018] AATA 686 has said that the Australian community has “zero tolerance” for violent offending against women and for domestic violence offending against anyone, and that such conduct is to be regarded as “unacceptable at any time – in any place – in any circumstances." Similarly, this Tribunal has found that domestic violence is “fundamentally inconsistent with the standard of behaviour expected by the Australian community.”
[92] Patterson and Minister for Home Affairs (Migration) [2019] AATA 5175 [60].
Ms Korat attended the hearing and expressed her support for the Applicant and her intention to reunite with him. The Tribunal asked Ms Korat about the impact of domestic violence on her. She stated:
“That has given me underlying fear most of the time and sometimes being insecure as well. Meanwhile he was drinking at the time, just for particular at that time, and I grew up very respectful and very pampered child and I never, ever have seen kind of behaviour in my life at all, so I was in trauma. I couldn’t think apart from that and it was very hard to stabilise myself without any emotional support, any family support. So that was very traumatic and very painful time. I’ve been through it, that’s what I will say. In Australia I never drink by myself as well, I never touched alcohol in my life until today’s date and I grew up, me and Sanjay grew up in Gujarat, so Gujarat still has the dry state at the moment. There is a no legal alcohol sale in my state. So I haven’t seen any (indistinct) once, I haven’t seen people to drink like that. I haven’t seen people to do the things like that, what the drunk people do. So I was overwhelming and I’m trying to help him, to stop him, but somehow he’s in a different world and I am not aware of the time. I was struggling, because I wasn’t resident at the time, so I was struggling to go to work, I’m managing to work to his mental health, I’m dealing with my kids, I’m looking after myself because I’m a patient of hyperthyroidism. So the stress make me really overwhelming, my body goes up and down, like blurriness, blindness, anytime anywhere, so that was - that was so many things happened at the time and I wasn’t able to understand what’s going on and it’s pretty hard. I Have no idea, I have just helped myself and stabilised. But my family, definitely my family, my father, they’re giving me all moral support and I’m a spiritual being, so I’m going some yoga and meditation and stuff. So somehow I look after myself and I know now what I need to do, exactly, when something happened like that, but that was very traumatic time and I don’t want to see it in my life again.”[93]
[93] Transcript 5 June 2023, 111-112, [25]-[45], [5].
Ms Korat gave evidence of her unequivocal support for the Applicant. The Tribunal does not consider Ms Korat’s support to be undermining of the seriousness of the Applicant’s offending conduct; she recognises the seriousness, as she articulated in the course of the hearing. The Tribunal is satisfied that the cumulative impact of the repeated acts of violence has been traumatic for Ms Korat.
It is trite to say that domestic violence is serious. Australia is home for millions of people, and the legal expectations apply to all. The circumstances of this case involve the misuse of alcohol. As noted earlier, the Court referred to the link between alcohol, mental health and domestic violence. However, that link does not reduce the seriousness of the family violence committed in this case. The second offence occurred shortly after the first one, raising legitimate concerns. The Tribunal considers the Applicant’s conduct in relation to the family violence to be very serious and reflect the magnitude of the Applicant’s criminal conduct.
The Tribunal gives this consideration significant weight against revocation.
The strength, nature and duration of ties to Australia.
The Direction at paragraph 8.3(1) contemplates that decision-makers must consider any impact of the decision on the non-citizen’s 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. In considering a non-citizen’s ties to Australia, the Direction provides, among other things, that decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.[94]
[94] Direction No. 99, [8.3(3)].
Paragraph 8.3(4) of the Direction requires the Tribunal to consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community and in doing so have regard to:
(a) the length of time the non-citizen has resided in the Australian community, noting that:
(i) considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending;
(ii) more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
(iii) less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
The Applicant has been in Australia since 2009 when he arrived with Ms Korat, who was granted a student visa. In his Statutory Declaration and in oral testimony,[95] the Applicant gave evidence about his life in Australia since 2009, including undertaking voluntary work for the Salvation Army and at his Temple and working as a cook in a restaurant, as well as obtaining a qualification.
[95] Signed Statutory Declaration of the Applicant dated 29 May 2023, Ex 19.
The Applicant has been offered a position as cook at the Punjab Pavilion Restaurant, in Newcastle NSW 2300 in a part-time role, at commencement of four days per week for six hours each day. The owner, Mr Jatinder Singh, has known Mr Korat since 2012.
Ms Korat and the Applicant’s two minor children in Australia who are affected by the decision are:
·[redacted – Applicant’s daughter], aged 15; and
·[redacted – Applicant’s son], aged 9.
[redacted – Applicant’s daughter] was conferred with Australian citizenship on [redacted].
The citizenship application of [redacted – Applicant’s son] remains pending.
Ms Korat and the two children reside in Australia. Although the Applicant and Ms Korat have been separated since 2019, the most recent evidence, including her oral evidence, indicates that she still loves the Applicant and wishes to live their family life in Australia.[96] Although she indicated in a previous statement that she and the children will return to India should the Applicant be required to return, in oral evidence she confirmed that she would not, due to the children. She stated “I’m going to stay in Australia to support my kids and fulfilling their life. I’m going to sacrifice my life for their goals, so they won’t regret in the future.”[97] The Tribunal accepts Ms Korat’s oral evidence that she would not depart Australia.
[96] G20, 106, Ex 22; Transcript 5 June 2023, 109, [15].
[97] Transcript 5 June 2023, 109, [40].
The Applicant has provided statements from a paralegal secretary who undertook work on a civil matter for the Applicant[98] and a Salvation Army worker, who stated the Applicant undertook volunteer work with the Salvation Army and was a valuable member of the Australia community.[99] There are also letters from persons in Wagga Wagga and Newcastle who attest to this volunteer service.[100] The Applicant has also provided a statement from a friend who attests to his good character.[101]
[98] G22a, 108, Ex 22.
[99] G22b, 109-110, Ex 22.
[100] G22c, 111, Ex 22; G22d, 112-113, Ex 22.
[101] G22e, 115, Ex 22.
The Minister accepts that Ms Korat may face some hardship in returning to India and that the evidence supports that the Applicant has made a positive contribution to the Australian community. However, the Minister qualified that by noting that the Applicant was not ordinarily a resident in Australia during his formative years, as he arrived in Australia when he was 29 years old.[102] The Minster contended that while the Applicant may have some links to the Australian community, the Tribunal should give this factor limited weight in favour of revocation.[103]
[102] Direction No. 99 [8.3(4)(a)(iii)].
[103] Respondent’s SOFIC, 7-8, Ex 2.
The evidence before the Tribunal indicates that the Applicant has played a significant role in the upbringing of his children. He has been described as being loving, kind and engaged with his children. They both attended the hearing wanting to support their father. Ms Korat has decided that she would not depart Australia, in case of the Applicant’s return to india.
On balance, the Tribunal is satisfied that the Applicant has strong, personal and lengthy ties in Australia, including his children and Ms Korat.
The Tribunal gives this consideration weight in favour of revocation.
The best interests of minor children in Australia.
The Direction requires decision-makers to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.[104]
[104] Direction No. 99 [8.4(1)].
In considering the best interests of the child, the Direction states at 8.4(4) that 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 child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
In her Statutory Declaration,[105] Ms Korat stated:
“The children are very close to Sanjay, especially the little one. He says he is missing him, he says he needs Daddy to look after him. He is missing his life without his father. When he was born, Sanjay used to look after him very well, give him food, change his nappy and sleep with him. He says he wants to wake up next to him. I am tired of telling him that Sanjay will be coming home soon. He needs the support of a man.
Without Sanjay, the children will not have a normal family. They will not have both parents. My daughter misses him and did not want to go to some cultural events because she said everyone else has their parents there, but she does not.
In our culture, it is a great blessing to have a girl children first. It is called “Laxmi”. Sanjay really loves her. It is hard to be a single mum with a teenage girl. She needs the assistance of a father to guide her.
I have seen how Sanjay has changed over the past three years. I have been watching him. I see he still loves me. He says he wants to live with me and the children. I still love him. He was a loving and caring man when we got married. We never got a divorce.[106]
He has realised what he has lost in the past two years. His sister died and his father has cancer and could die at any time. He lost his family and freedom. I can see he has realised these losses and has changed.
The way of life in India is very different. The children do not want to go and live in India. I asked them if they would go there and they said “no”. All their friends are here. My little one was born here. She has her friends. The children do not speak Gujarati or any Indian language. I wrote in April 2021 that I was thinking about going to India, if Sanjay’s visa was not given back, but I have changed my mind. I would not have a life in India. I would be a housewife and have no work. Sanjay would probably have to work as a farmer or polishing diamonds in a factory with his brother. The children have no future attending school in India. There are not the same education and job opportunities. My daughter wants to be a dentist and she never have this opportunity in India. She is very bright and gets awards at high school. She is a responsible, disciplined child and looks after her brother.”
[105] Signed Statutory Declaration of Pillaviben Sanjay Korat, [31] – [38], Ex 21.
[106] Ms Korat advised that she and the Applicant have shared responsibility. Due to s 121 of the Family Law Act 1975 (Cth) the Tribunal cannot publish any further details.
There are photographs of the Applicant with his children spanning the period of time before his imprisonment on 5 February 2021, the video contact during his imprisonment, and video and personal contact since 4 February 2022 in the VIDC.[107]
[107] Ex 17.
The Applicant contended that it is in the best interest of the children that the cancellation of his visa be revoked and that this consideration weighs strongly in favour of revocation.
The Respondent contended that there is limited evidence in respect of the Applicant's relationship with his children and the evidence further suggests that the Applicant has spent a significant amount of time away from his children, in particular [redacted – Applicant’s son]. However, the Respondent noted that in circumstances where the cancellation of the Applicant's visa will not cause the children to be separated from their father as they will return to India with him, should the Tribunal find this consideration weighs in favour of revocation, it should be given limited weight.[108]
[108] Respondent’s SOFIC, [44]-[45], Ex 2.
For the reasons explained above, on balance, the Tribunal is satisfied that the Applicant has strong, personal and lengthy ties in Australia, including his children and Ms Korat. The question here though is whether non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
It is a generally-accepted proposition that it is in the children’s best interest to be cared for by both of their parents. However, it is also accepted that families in Australia come in many forms, including a single parent home. Despite all of his good intentions, which the Tribunal accepts, it is reasonable to say that the children have had to endure the very negative aspects of the Applicant’s conduct. Although there is no evidence of any abuse or mistreatment towards the children, they are aware of his criminal conduct. They know he was in prison and that he is in detention.
The Tribunal asked Ms Korat if she considered the Applicant to be a good role model for the children:
“Q. Do you think a person who is capable and has been convicted of domestic violence is a good role model for their children?
A. As for my opinion, Sanjay has been playing father role since 2007 till 2019. I understand he was influenced with substance and he wasn’t know what he was doing.
Q. Substance abuse, is that a good role model for the children?
A. I think the substance use is not the role model for the kids…Apart from that, Sanjay has a very short history with that and his parenthood as a father, it’s time is longer so he’s aware where he’s missing and what he has to implement in his life, for the betterment for the kids and for the future. For the future. I think, as a mother, I’m thinking, without father - fatherless childhood can be more dangerous for them as well. If they’re going to live without their father their whole life, that can be another problems and so many issues regarding their future as well. That is I’m concerned.”[109]
[109] Transcript 5 June 2023, 11, [5]-[20].
The Tribunal does not wish to sound harsh or take the comments out of their context. However, even on her own evidence, Ms Korat recognised that aspects of the Applicant’s behaviour does not accord with being a role model for children. The evidence demonstrates that the drinking issue has not resolved. The evidence demonstrates this as Mr Sheehan acknowledged the Applicant has shown “that under certain circumstances, he remains vulnerable to resorting to alcohol use and then engaging in aggressive behaviour, which makes this a live issue, not a historical issue.”[110]
[110] Transcript 2 June 2023, 84, [25]-[35].
The Tribunal is mindful that Ms Korat has made it clear in oral evidence that she does not wish to return to India. Among other things, she considered it in the best interest of her children to remain in Australia. She explained the challenges they would face if he were to leave Australia. She also raised the issue of her giving up her Indian passport, following the acquisition of the Australian citizenship. She however acknowledged that she has not made inquiries about the implications that this would or could have on her ability to return to India. In any case, Ms Korat wants the Applicant to be part of her family and the Tribunal accepts that she does not wish to leave Australia.
The Applicant remains to be the children’s father with parental obligations and responsibilities. It is not the Tribunals’ role to tell Ms Korat to stay in Australia or depart to India, as that is a matter entirely up to her. The Tribunal acknowledges the Applicant’s and Ms Korat’s desires and hopes, but the Tribunal considers it appropriate in the circumstances to moderate this consideration and give it limited weight against revocation. The family violence and the alcohol misuse present serious challenges to the proposition that revocation is in the children’s best interest. Moreover, the evidence before the Tribunal indicates that Ms Korat, albeit with some difficulties as a single parent, has cared for the children all their lives, including during the Applicant’s incarceration and detention and she has fulfilled the parental role. She came across as being a loving, caring, and a responsible parent.
On balance, the Tribunal gives this consideration some weight against revocation.
Expectations of the Australian community
The Direction at 8.5(1) indicates that the Australian community expects non-citizens to obey Australian laws. It states that 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. The Direction refers to non-revocation of the mandatory cancellation of a visa, being potentially appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.[111] In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of a kind that includes acts of family violence. The Applicant accepted that this consideration weighs against revocation. The Respondent contended that that this primary consideration weighs heavily against revocation.[112]
[111] Direction 99 [8.5(2)].
[112] Respondent’s SOFIC, [48], Ex 2.
The Tribunal accepts that the Applicant has committed offences involving family violence against women, which raise serious character concerns.[113] The Tribunal is satisfied that the Applicant has engaged in serious conduct in breach of community expectations, and that the Australian community expects the Government to not allow such a non-citizen to remain in Australia.
[113] Direction 99 [8.5(2)(a)], [8.5(2)(c)].
The Tribunal gives this consideration significant weight against revocation.
The other considerations
Legal consequences of the decision.
At paragraph 9.1, the Direction indicates that decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there would be a risk of harm.
Australia is a signatory to several international instruments which give rise to non-refoulement obligations. Australia is a signatory to 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).
“Non-refoulement obligations” is not confined to the protection obligations to which s 36(2) of the Act refers.[114] It is defined in the Act to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.
[114] See Ibrahim v Minister for Home Affairs [2019] FCAFC 89 [103].
There is no evidence of any non-refoulment obligations in this case.
As to the consequences pursuant to ss 189 and 198 of the Act, although detention and removal can have a degree of hardship, particularly in the case of a detainee with mental health issues, as they are consequences of the legislation, the Tribunal moderates their impact.
Overall, the Tribunal gives this consideration little weight in favour of revocation.
Extent of impediments if removed.
Paragraph 9.2 of the Direction requires the Tribunal to consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country) taking into account:
(a) the non-citizen's age and health;
(b) whether there are substantial language or cultural barriers; and
(c) any social, medical and/or economic support available to them in that country.
Although the Tribunal acknowledges that if removed from Australia to India, the Applicant would face some practical difficulties, including re-establishing his relationship with his family in India, the Applicant would be able to establish himself and maintain basic living standards. The obstacles are not insurmountable.
The Applicant is relatively young. There are no language or cultural barriers as the Applicant has spent the majority of his life in India. Although there is evidence of the Applicant suffering from alcohol misuse and depression disorder, there is no evidence to indicate that he would not have access to physical and mental health treatment that is generally available to other citizens of India.
On balance, the Tribunal gives this consideration limited weight in favour of revocation.
Impact on victims.
The Direction requires decision-makers to consider the impact of the section 501 or 501CA decision 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 information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.[115]
[115] Direction 99 [9.3].
Ms Korat has been a victim of the Applicant’s domestic violence offences. Although she gave evidence about the impact of being a victim of domestic violence, this consideration relates to the question of the impact of the section 501 or 501CA.
It is fair to say that non-revocation would cause Ms Korat a degree of hardship, including financial, personal, and psychological hardship. Non-revocation could potentially mean that she has to continue to rely on her own personal resourcefulness to meet her financial and parental obligations. However, this needs to be moderated by the fact that she was the victim of the family violence perpetrated by the Applicant.
The Tribunal does not have specific information about any impact of non-revocation or revocation on the victims of the bomb threat.
On balance, the Tribunal gives this consideration some weight against revocation.
Impact on Australian business interests.
At paragraph 9.4 of the Direction, it is noted that decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant has indicated that he has been offered a job as a cook in a restaurant in Newcastle,[116] but there is no evidence of how the business would be impacted.
[116] Signed Statutory Declaration of the Applicant dated 29 May 2023, [44], Ex 19.
The Tribunal gives this consideration neutral weight.
Other matters for consideration
Paragraph 9 of the Direction expressly states the other considerations 'are not limited' to the matters listed therein.
The Applicant raised two additional matters in his SOFIC, namely a claimed delay in decision making and delay in the notification of the decision. The Tribunal is satisfied that those matters are not relevant to whether there is another reason why the decision to cancel the Applicant's visa should be revoked.
CONCLUSION
The decision as to whether to revoke a cancellation is not a simple, or mathematical, or formulaic exercise. It requires the decision maker to weigh up different considerations. On balance, although there are aspects in favour of revocation, the aspects against revocation outweigh those in favour. The seriousness of the Applicant’s offending conduct, the fact that the offending conduct involved family violence, the risk of reoffending, and the expectations of the Australian community weigh heavily against revocation.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding one-hundred and forty (140) paragraphs are a true copy of the reasons for the decision herein of Deputy President Antoinette Younes.
................................[SGD]...................................
Associate
Dated: 20 June 2023
Date of hearing(s):
2 and 5 June 2023
Representative for the Applicant:
Mr S Jeans, Jeans Lawyers
Representative for the Respondent:
Ms C Saunders, MinterEllison
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