Kumar and Minister for Home Affairs (Migration)
[2018] AATA 1105
•2 May 2018
Kumar and Minister for Home Affairs (Migration) [2018] AATA 1105 (2 May 2018)
Division:GENERAL DIVISION
File Number(s): 2018/0661
Re:Sushil Kumar
APPLICANT
Minister for Home AffairsAnd
RESPONDENT
DECISION
Tribunal:Mr. A. Maryniak QC, Member
Date:2 May 2018
Place:Melbourne
The Tribunal sets aside the decision of the delegate of the Minister dated 30 January 2018 and remits the matter to the Minister with a direction that the Applicant’s application for an Employer Nomination (Permanent) (Class EN) visa not be refused under s 501 of the Migration Act 1958.
[sgd]......................................................................
Mr. A. Maryniak QC, Member
MIGRATION – refusal to grant Employer Nomination (Permanent) (Class EN) visa – Applicant has conviction of sexually based offence involving 17 year old child – refuse to grant a visa – primary considerations – protection of the Australian community from criminal or other serious conduct – expectations of Australian community – other considerations – decision under review set aside and remitted
Legislation
Migration Act 1958; ss 5, 29, 30, 31, 499, 501
Migration Regulations 1994; reg 2.52
Sex Offenders Registration Act 2004
Cases
Alexandra Private Geriatric Hospital Pty Ltd v Blewett (1984) 2 FCR 368; 56 ALR 265
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299
Re Maikantis and Minister for Immigration and Border Protection [2018] AATA 40
Re Smith and Minister for Immigration and Border Protection [2013] AATA 687
Williams v Minister for Immigration and Citizenship [2013] FCA 702; (2013) 136 ALD 299
Secondary Materials
Ministerial Direction No. 65
REASONS FOR DECISION
Mr A. Maryniak QC, Member
2 May 2018
INTRODUCTION
On 30 January 2018 a delegate of the Minister of Home Affairs (Minister) refused Mr Sushil Kumar’s (Applicant) application for an Employer Nomination (Permanent) (Class EN) visa. The refusal decision was made under sub-section 501(1) of the Migration Act1958 (Migration Act).
The Department of Home Affairs (the Department) notified the Applicant of the refusal decision belatedly by email sent to his legal representatives on 8 February 2018, the day after the Department detained the Applicant, upon the basis of the 30 January 2018 decision. The Tribunal considers this timing to be unfortunate.
The parties agreed that the Applicant had not passed the character test because of a sexual offence against a 17 year old child in 2009, pursuant to s 501(6)(e) of the Act. Additionally, the Applicant was convicted of a second offence of failing to comply with reporting obligations under the Sex Offender Registration Act 2004.
In summary, the Tribunal has decided to set aside and remit the refusal decision. The 2009 offence has been a once-off. The Applicant has been of essentially good character since the serious offence in August 2009. He is genuinely remorseful and regrets his conduct back in 2009. He has established a solid life in Australia through education and employment, has married and now has his first child born in Australia. There is a very low risk of the Applicant ever committing any similar offence in the future.
LEGISLATIVE BACKGROUND
Visas
Subject to the terms of the Migration Act, the Minister may grant a non-citizen[1] permission either to travel to and enter Australia or remain in Australia. That permission takes the form of a visa.[2] A visa may be subject to conditions. It may be permanent, allowing the person to remain in Australia indefinitely, or it may be temporary, allowing the person to remain during a specified period, for a specified event or while the holder has a specified status.[3] There are various classes of visa set out in s 31(2) and others may be specified in regulations made under the Migration Act. Regulations may specify the criteria that must be met for a visa of a specified class,[4] as do specific provisions of the Migration Act.[5] Quite apart from circumstances in which an applicant for a visa fails to meet the relevant criteria, s 501 sets out circumstances in which the Minister may refuse to grant a visa. They arise if the person fails to meet the character test set out in s 501(6) of the Migration Act with reference to ss 501(7) to (12).
[1] Non-citizen is a person who is not an Australian citizen: Migration Act s 5(1)
[2] Migration Act; ss 5 and 29(1)
[3] Migration Act; s 30
[4] Migration Act; s 31(3)
[5] See, for example, s 36 in relation to protection visas.
Refusal under section 501 of the Migration Act
Section 501(1) provides that:
“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.
Note: Character test is defined by subsection (6).”
The Minister may refuse to grant a visa if he reasonably suspects that the person does not pass the character test and he is satisfied that the refusal is in the national interest.[6]
[6] Migration Act; s 501(3)
The “character test” is defined as s 501(6). It relevantly includes (at section 501(6)(e)) that a person does not pass the character test if:
“a court in Australia or a foreign country has:
(i)convicted the person of one or more sexually based offences involving a child; or
(ii)found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction…”
The discretion in section 501(1) is enlivened only if a person does not satisfy the decision-maker that the person passes the character test.
Discretionary decision
Section 501(1) is drafted in discretionary terms in that the Minister “may” refuse to grant a visa to a person who does not satisfy the Minister that the person passes the character test. It is not an unfettered discretion but a discretion that must be exercised within boundaries found in the Migration Act. Those boundaries may be express or they may be implicit when regard is had to the subject matter of the enactment under which the decision is made as well as from its object and underlying policy.[7]
[7]Alexandra Private Geriatric Hospital Pty Ltd v Blewett (1984) 2 FCR 368; 56 ALR 256 at 375; 272 pr Woodward J (appeal allowed by the Full Court of the Federal court in Re Alexandra Private Geriatric hospital Pty Limited (Trading as Alexandra Private Nursing Home) v Neal Blewett (Who is Sued As the Commonwealth Minister of Health and Anor [1985] FCA 242; (1985) 7 FCR 341 but not on this point) and see also Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] CA 40; (1986) 162 CLR 24; 66 ALR 299; Gibbs CJ, Mason, Brennan, Deane and Dawson JJ at 39-40; 308-309 per Mason J with whom Gibbs CJ and Dawson J agreed
In the case of a discretionary decision of the sort provided for in s 500(1), s 499 of the Migration Act provides that the Minister may give written directions to a person or body having functions or powers under that Act provided the directions are about the performance of those functions or the exercise of those powers.[8] Those directions must not be inconsistent with the Act or the Regulations made under it.[9] The person or body to whom the directions are given must comply with them.[10] The Minister has made a direction under s 499 for the purposes of decisions made under, among others, s 501(1). It is known as “Direction No. 65”.
[8] Migration Act; s 499(1)
[9] Migration Act; s 499(2)
[10] Migration Act; s 499(sA)
Paragraph 6.1 of the Direction No. 65 begins with a statement of objectives but I will refer only to the first:
“The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.”[11]
[11] Direction No. 65 at [6.1(1)]
The objectives are followed by passages described as “General Guidance” and “Principles”. The latter set the framework within which the individual considerations set out in Parts A, B and C of Direction No. 65 are set. They give those considerations their form and pattern and raison d’être. The Principles set out in paragraph 6.3 are:
“(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.”
Paragraph 7(1) sets out how the discretion under s 501 is to be exercised:
“Informed by the principles in paragraph 6.3 above, a decision-maker:
a) must take into account the consideration in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.”
Considerations that differ slightly from each other are prescribed in each Part. The reason for that difference is explained in paragraph 8(1):
“…Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
In this case, Part B sets out the considerations that are relevant to the refusal of a visa. Paragraph 8 of Direction No. 65 sets out how the considerations are to be applied by a decision-maker in coming to the relevant decision. Decision-makers must take into account the primary and other considerations relevant to the individual case.[12]
[12] Direction No. 65 at [8(1)]
In applying the considerations, whether primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources.[13] Paragraph 8(3) provides that “Both primary and other considerations may weigh in favour of, or against refusal … of the visa …”. Generally, primary considerations should be given greater weight than other considerations and one or more primary considerations may outweigh other primary considerations.[14]
[13] Direction No. 65 at [8(2)]
[14] Direction No. 65 at [8(4)] and [8(5)]
When making a decision whether to refuse an application for a visa, Part B of Direction No. 65 requires, in summary, regard to be had to the following three primary considerations:
“a)Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c)Expectations of the Australian community.[15]
The secondary criteria:
“… include (but are not limited to):
(a) International non-refoulement obligations;
(b) Impact on family members;
(c) Impact on victims;
(d) Impact on Australian business interests.”
[15] Direction No. 65 at [11(1)]
Direction No. 65 expands upon each of these criteria and I return to it when considering each of them in these reasons. For the moment, I will merely note that, consistent with the reasoning of North J in Williams v Minister for Immigration and Citizenship[16] (Williams), the question that I must ask myself when I have had regard both to the primary and secondary conclusions is whether, in the case of an application for a visa, a decision should be made to grant or refuse that visa. That question will be answered in light of the assessment of the primary and secondary considerations but also taking into consideration all matters that are relevant having regard to the subject matter of the Migration Act, its object and its underlying policy. The task is much more than simply placing the assessments of the primary and secondary considerations into the balance to determine the answer to the question.[17]
[16] [2013] FCA 702; (2013) 136 ALD 299 at [42]-[44] 311
[17]I have expanded on the reasoning on this issue in Re Maikantis and Minister for Immigration and Border Protection [2018] AATA 40 at [16]-[22]
Part B begins with three considerations that are characterised as primary considerations: protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia; and the expectations of the Australian community. Each of these considerations is developed in the remainder of paragraph 11.
Protection of the Australian community
The first primary consideration relating to the protection of the Australian community begins with the general statement at paragraph 11.1(1) :
“When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision-makers should also give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.”
Paragraph 11.1.1 goes on to expand upon the nature and seriousness of the non-citizen’s offending or other conduct to date. It sets out a number of factors to which a decision-maker must have regard in considering this matter. In the circumstances of this case, the following factors may be relevant:
“a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;
b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled) … are serious;
c)…
d)The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;
e)The sentence imposed by the courts for a crime or crimes;
f)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
g)The cumulative effect of repeated offending;
h)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
i)Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.”
OUTLINE OF FACTS
The Tribunal sets out below the facts that are either not in dispute or that the Tribunal has found after hearing:
(a)the Applicant’s oral evidence together with that of his wife, Mr. Anun Kumar, Mr Harshwinder Singh, Mr Anjesh Sharma, Mr Vikas Puri and clinical psychologist Mr Patrick Newton;
(b)Cross-examination of the Applicant’s witnesses; and
(c)the written evidence before the Tribunal comprising Exhibits A1 to A12 and R1 and R2,
as against the facts contended by the Applicant in his Statement of Facts, Issues and Contentions.
The Applicant was born on 21 November 1987 in a rural part of India. He is an Indian citizen.
The Applicant arrived in Australia on 8 July 2007 as the holder of a Class TU (Student) Subclass 573 visa. Apart from several short trips to return to India, he lived in Australia lawfully for more than 10 years, as the holder of a student visa, then a subclass 457 visa and finally a Bridging A (Class WA) visa.
Throughout his time as a student visa holder he studied consistently and successfully completed the following courses:
(a)Certificate III in Automotive Mechanical Technology (Australian Industrial Systems Institute);
(b)Certificate IV in Automotive Mechanical Technology (Australian Industrial Systems Institute);
(c)Diploma of Automotive Technology (Australian Industrial Systems Institute);
(d)Diploma of Management (GIT Australia); and
(e)Diploma of Business (GIT Australia).
On 8 August 2009, aged 21, the Applicant was working at Subway, 37 Swanston Street, Melbourne. In the early morning, RGHW, a 17 year old girl, together with some friends, attended the store. They ordered some food and remained in the store for a few hours. During this time, the Applicant offered his jumper to RGHW because she was cold. She initially declined the offer. The Applicant later re-offered his jumper and suggested RGHW could use the ‘staff only’ toilet. The Applicant and RGHW went to that toilet together. While there, the Applicant pushed up against RGHW, touched her breast over her clothing and tried to kiss her. RGHW said “No” and the Applicant immediately stopped and left RGHW so that she could put his jumper on and use the staff toilet. RGHW returned to the Subway store wearing the Applicant’s jumper. Hours later, RGHW returned the jumper and left the store with her friends. The Applicant was not aware of RGHW’s age, but thought that she was about 19 years old.
On 27 August 2009 RGHW reported the events of 8 August to the police.
On 18 September 2009 police arrested the Applicant. He was interviewed and denied the allegations. He was then released from the police station without being charged at that time. However, later that day he returned to the police station and admitted the offending. He was then charged with false imprisonment and indecent assault.
On 13 November 2009, at the Magistrates’ Court at Melbourne, the Applicant pleaded guilty to the charge of indecent assault. The charge of false imprisonment was withdrawn. The Magistrate, Ms Dawes, convicted and fined the Applicant $2,000.
As a result of the conviction for indecent assault and the fact that RGHW was aged under 18, the Applicant was placed on the Victorian register of Sex Offenders.[18] He complied with all his reporting obligations under the Act for eight years, except on one occasion.
[18]The provisions of the Sex Offenders Registration Act 2004 deem a person convicted of an offence of indecent assault of a child (defined as a person under the age of 18) to be a registrable offender and required to meet the reporting obligations set out by the Act for eight years.
In November 2010 the Applicant’s brother died in India. The Applicant travelled to India for just over two weeks for his brother’s funeral, before returning to Australia on 29 November 2010. At this time, he was very upset. He made two errors on is incoming passenger card – indicating “No” to the question “Do you have any criminal convictions” and dating the declaration on the card incorrectly, with his date of birth instead of the actual date. This form was filled in during an overnight Cathay flight from Hong Kong to Melbourne. The Tribunal finds that these two errors were genuine and inadvertent errors made because of his distressed state at the time. On all subsequent return trips to Australia he has correctly completed the incoming passenger card declaration as to his having a criminal conviction.
On 12 April 2013, following the completion of his studies, the Applicant was granted a subclass 457 visa on the basis of his employment with Import Revolution as a motor mechanic. He continued to work with Import Revolution until August or September 2016, when he took time off work to recover from a prior back injury, unrelated to his work.
In October 2014 the Applicant began to share his house in Glen Waverley with his friends, a young couple, who were the parents of a three year old son.
On 17 December 2014, the Applicant attended to police for his annual reporting interview. During the interview, he stated that he had been sharing his residence with family, which included a three year old child.
Police interviewed the Applicant about this on 12 January 2015. The officer advised him that the failure to report any child living at his place of residence within a day of the child starting to live there was a breach of the continuing obligations to report any change of his circumstances. Until then the Applicant thought that he did not need to report about the child’s presence at his home because the child’s mother and/or father stayed at the home and was always present with the child. The child was never left unsupervised by the parents.
On 9 June 2015 at the Ringwood Magistrates’ Court the Applicant pleaded guilty to a charge of failing to comply with this reporting obligation. He was convicted and fined $600.
On 26 June 2015 the Applicant applied for an Employer Nomination (Permanent) (Class EN) subclass 186 visa.
In December 2015 the Applicant and Monika Pudir were married in India.
On 2 June 2016 Ms Pudir was granted a 457 visa. It should be noted that Ms Pudir’s visa status is dependent on the granting of the Applicant’s visa application.
On 15 March 2017 the Applicant was given notice of the Department’s intention to consider refusal of his visa application under s 501(1) of the Act.
In April 2017 the Applicant’s 457 visa expired and he subsequently became the holder of a Bridging A visa, pending the outcome of his application for the subclass 186 visa.
On 12 April 2017 Carina Ford Immigration Lawyers, representing the Applicant, responded to the notice of intention to consider refusal requesting that the discretion be exercised in his favour not to refuse his visa application.
On 13 November 2017 the Applicant’s reporting obligations under the Sex Offender Registration Act ended.
On 31 January 2018 a delegate of the Minister refused the Applicant’s application for an Employer Nomination (Permanent) (Class EN) subclass 186 visa. As has been noted above, formal notification of that decision was given to the Applicant in the form of a letter dated and emailed 8 February 2018. However, this was the day after officers of the Department attended the Applicant’s home on 7 February 2018 and took him into immigration detention. At this time, Ms Pudir was a few days short of giving birth to their first child.
On 10 February 2018 Ms Pudir gave birth to their son Avykut.
On 13 February 2018 the Applicant lodged an application for review of the decision to refuse his application for a visa to the Tribunal, together with supporting documentation which included his submission to the Department dated 12 April 2017, containing numerous character references and a psychological report by Mr Patrick Newton, clinical and forensic psychologist.
In his assessment of the Applicant Mr Newton considered the Applicant’s risk of re-offending. He concluded that the risk of re-offending was low and could be equated to a “normal” community dwelling Australian male. In his supplementary report dated 24 March 2018 Mr Newton, confirming his earlier view in this respect, stated that the Applicant posed a low risk of sexual recidivism. Additionally, Mr Newton regarded the Applicant’s risk of sexual recidivism as being “substantially lower than the risk rating attached to a typical sex offender”. Mr Newton’s conclusion remained the same throughout and subsequent to cross-examination.
It should also he noted that in the period spanning over 10 years that the Applicant has been in Australia, he has never been held in custody, with the exception of having recently been taken into immigration detention. He has spent all his time “in the community”. Furthermore, the Tribunal regards that he has played an active role in the Australian community and appreciates the opportunities Australia provides.
The Tribunal also finds that the Applicant has significantly contributed to the Australian community in various ways. These include in his various forms of employment, blood donations, active membership in sporting clubs and financial donorship to the Salvation Army and St Vincent de Paul Society and socially as a friend.
The Tribunal also finds that, as the Applicant concedes, that his 2009 offence is very serious. However, in light of RGHW’s comment to the Applicant that she “had been out clubbing” and the lateness of the hour when her party first arrived at the Subway ‘restaurant’ the Tribunal finds that the Applicant thought that RGHW was about 19, and not underage.
Other mitigating factors include the fact that the Applicant immediately stopped his advances once RGHW said “no” and, RGHW then took up the Applicant’s offer of borrowing his jumper (to keep warm) and continued to wear the Applicant’s jumper and remain at the Applicant’s restaurant for a number of hours after the offence took place.
The Applicant initially lied to the police but returned the same day to make a full and remorseful confession. The Tribunal finds the Applicant to be extremely remorseful in respect of his conduct relating to the 2009 offence. This was clearly evident during his time giving evidence and during cross-examination and detailed questioning by the Tribunal.
The 2010 incoming passenger card error offence occurred in circumstances where, the Tribunal finds, the Applicant was extremely upset as he returned on an overnight flight to Australia after attending his brother’s funeral. The Tribunal finds that the error was inadvertent and a “once off”. At all other times the Applicant has provided correct information to the Department.
The Tribunal finds the Applicant did believe, prior to the 2014 reporting offence, that he only had to inform the police of an unsupervised child living with him and not a child whose parents had informed him that they would supervise their child 24/7, as was the case in 2014.
The Tribunal finds that the Applicant’s offences were isolated and without any cumulative effect and are now of an historical nature. The Applicant is now no longer under any reporting obligations under the Sex Offender Registration Act.
CONSIDERATION
Primary Considerations
Protection of Australian community
Having regard to the findings above and having considered the nature of the indecent assault offence and all of the evidence, including that of the Applicant, who was cross-examined and questioned extensively by the Tribunal, and the evidence of Mr Newton, clinical psychologist, the Tribunal finds that the risk of the Applicant committing any further serious offences of the sort committed in 2009 is low. The Tribunal finds the Applicant is unlikely to re-offend.
Best interests of the minor child
The Applicant and his wife have a three month old baby, born in Australia, unfortunately whilst the Applicant was held in detention. The Tribunal finds that it is best for the child to be raised in Australia, rather than India. This consideration weighs in favour of not refusing the visa.
Australian community expectations
Paragraph 11.3(1) of the Direction states that:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.”
The Applicant has breached the expectations of the Australian community. However, such breaches are isolated and minimal. The substantial breach occurred some 9 years ago. The Applicant has essentially been of good character since. He appears extremely ashamed and embarrassed about his 2009 conduct and has paid a substantial price for it to date, including missing the birth of his first child. It is apparent he continues to carry the guilt and shame and has vowed to himself that he will not make a similar error of judgement again.
Australia is founded on the concept of a ‘fair go’. Having regard to all the evidence the Tribunal finds that the Australian community would expect the Applicant to be given the opportunity to continue his life in Australia. He has made one mistake and should be given a second chance.
The Applicant argued that the detention process was unfortunate given the timing of the notice and the imminent birth of his son, relative to the timing of his detention. The Tribunal agrees, however, it does not have to consider whether this forms part of the Australian community expectations consideration, due to the findings already made and set out above.
OTHER CONSIDERATIONS
Impact on family members
Paragraph 12.2(1) of Direction No 65 states:
“Impact of visa refusal on immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.”
As has been noted above, Ms Pudir’s visa status is dependent on the granting of the Applicant’s visa application. Therefore, if the Applicant was not permitted to remain in Australia, his wife would also have to leave. He and his family would have to leave Australia. This would have an adverse effect upon his family members.
Impact on business
In light of the evidence the Tribunal finds there will be no impact upon business interests in Australia, should the Applicant be deported.
Strength, duration and nature of ties to the community
The Applicant has made a valuable contribution to the Australian community for over 10 years. He has studied and worked in Australia, has good friends here and is involved with a cricket club and helps others where he can. He has very much connected with the Australian community.
CONCLUSION
Having regard to all the matters considered above in these reasons, the Tribunal has decided that the Applicant’s application for a visa should not be refused. The Applicant made a mistake back in 2009 and he is well are of the gravity of that mistake. However, he is unlikely to make that same mistake again.
For these reasons the Tribunal sets aside the decision of the delegate of the Minister dated 30 January 2018 and remits the matter to the Minister with a direction that the Applicant’s application for an Employer Nomination (Permanent) (Class EN) visa not be refused under s 501 of the Migration Act.
67. I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Mr A. Maryniak QC, Member
[sgd]......................................................................
Associate
Dated: 2 May 2018
Date of hearing: 23-24 April 2018 Counsel for the Applicant: Mr Greg Hughan Solicitors for the Applicant: Mr Dushan Nikolic, Carina Ford Immigration Lawyers
Solicitors for the Respondent: Ms Rachel Noronha, Clayton Utz
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