Kumar and Minister for Immigration and Border Protection (Migration)
[2016] AATA 315
•16 May 2016
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2016/1020
General Division )Re: Kamlesh Kumar
Applicant
And: Minister for Immigration and Border Protection
RespondentDIRECTION
TRIBUNAL: Senior Member CR Walsh
DATE: 19 May 2016
PLACE: Perth
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of its:
(1) Decision, dated 16 May 2016, as follows:
(a)deleting the word “direction” and substituting it with the word “recommendation”; and
(b)adding the words “on the basis that he is not of good character” to the end of the Decision; and
(2) Reasons for decision, dated 16 May 2016, as follows:
(a) deleting the word “direction” from paragraph 89 and substituting it with the word “recommendation”; and
(b) adding the words “on the basis that he is not of good character” to the end of paragraph 89.
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Senior Member
Kumar and Minister for Immigration and Border Protection (Migration) [2016] AATA 315 (16 May 2016)
Division
GENERAL DIVISION
File Number(s)
2016/1020
Re
Kamlesh Kumar
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
Decision
Tribunal Senior Member CR Walsh
Date 16 May 2016 Place Perth The Tribunal sets aside the decision under review and substitutes that decision with the decision that the discretion in s 501(1) of the Migration Act 1958 should be exercised in Mr Kumar’s favour and the matter be remitted to the Respondent with a direction that Mr Kumar’s application for a “Skilled – Independent (Permanent) (Class SI)” visa not be refused.
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Senior Member CR Walsh
Catchwords
IMMIGRATION – decision by Minister to refuse applicant’s “Skilled- Independent (Permanent) (Class SI)” visa under discretion in s 501 (1) of the Migration Act 1958 – applicant does not pass “character test” as a result of “substantial criminal record” (as a result of being convicted of assault occasioning bodily harm) – protection of the Australian community from criminal or other serious conduct considered – best interests of minor children in Australia (the applicant’s step-daughter) considered – expectation of the Australian community considered – other relevant considerations considered - decision under review set aside and substituted
Legislation
Migration Act 1958 – s 499(2A) - s 501(1) – s 501(6)(a) – s501(7)(c)
Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA – 6.3 – 7(1) – 8(1) – 11(1) – 11.1 – 11.1.1 – 11.1.2
cases
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 62 ALD 673
Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135
Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575
Re Du Pont and Minister for Immigration and Ethnic Affairs (1983) 5 ALN N143.
Saffron v Federal Commissioner of Taxation (No 2) (1991) 30 FCR 578; 102 ALR 19
REASONS FOR DECISION
Senior Member CR Walsh
16 May 2016
introduction
Mr Kumar seeks review of a decision of a delegate of the Minister, dated 12 January 2016, to refuse Mr Kumar’s application for a “Skilled - Independent (Permanent) (Class SI)” visa pursuant to the discretion in s 501(1) of the Migration Act 1958 (Migration Act) because Mr Kumar did not pass the “character test” in s 501(6)(a) of the Migration Act as a result of his “substantial criminal record” (being assault occasioning bodily harm with a sentence of 12 months’ imprisonment, suspended for 2 years).
factual & procedural background
Mr Kumar was born on 3 September 1971 in Ba, Fiji and is a citizen of Fiji.
Mr Kumar completed the Australian equivalent of Year 10 high school in Fiji.
Mr Kumar married his first wife, Ms Hema Shalini Savita Ram, in 1993 (then aged 22 years). Mr Kumar and Ms Ram separated in 1998 and divorced in 2002.
In Fiji, Mr Kumar worked as a panel beater and shop assistant.
In May 2008, Mr Kumar applied for a “Long-Stay Temporary Business” visa for the period from 30 May 2008 to 29 May 2011. In that visa application, in response to the question “Have you, or any person included in this application, ever: been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?” Mr Kumar responded “No”.
On 28 December 2008, Mr Kumar entered Australia for the first time as a as the holder of a “Temporary Business Entry (Class UC) subclass 457” visa.
Mr Kumar has been employed in the car industry, in crash repair and car detailing roles, since arriving in Australia on 28 December 2008. Mr Kumar’s, Statutory Declaration, dated 23 July 2015, describes his “work history” in Australia as follows:
Work History
7.I came to Australia in 28 December 2008 on a Subclass 457 visa. I was sponsored by JAP Paris WA Pty Ltd. The company experienced financial problems when the husband and wife owners of the business had marital issues in or about late 2010. They gave me time to find another subclass 457 employer and Hawchairs Panel and Paint took over the sponsorship of my visa.
8.I have enjoyed working with the various employers and they have given me positive references in support of my good character. Kindly refer to the references from
a.my current employers Melville Automotive whom I have worked for since 23 June 2014 - Reference Letter dated 20 March 2015
b. Interpower Australia - Reference Letter dated 19 March 2015
On 27 January 2010, Mr Kumar married his second wife, Ms Ashika Vandhana Nair, a registered nurse, in Fiji. In September 2010, Ms Nair moved from Fiji to Perth, Western Australia, to live with, her husband, Mr Kumar.
Mr Kumar has entered Australia on the following 5 occasions:
· 28 December 2008;
· 6 February 2010;
· 9 September 2010;
· 10 June 2013; and
· 31 October 2013.
On each occasion Mr Kumar has entered Australia, he has completed an “Incoming Passenger Card”, as required by the Department. One of the questions on the “Incoming passenger card” is “Do you have any criminal conviction/s?” Mr Kumar answered “Yes” on his “Incoming passenger card”, dated 28 December 2008, but “No” on his “Incoming passenger cards”, dated 6 February 2010, 9 September 2010, 10 June 2013, and 31 October 2013.
After answering “Yes” on his “Incoming passenger card”, dated 28 December 2008, Mr Kumar was interviewed by an immigration officer at Melbourne Tullamarine Airport. The Department’s records show that Mr Kumar disclosed the following convictions to the immigration officer who interviewed him on that occasion:
(i)2008 assault in Fiji, with a fine of less than $150 Fijian dollars;
(ii)between 2000 and 2008 numerous minor assault convictions, with a fine in each instance of less than $150 Fijian dollars; and
(iii)between 1994 and 2000 assault, with a fine of less than $150 Fijian dollars.
The Department’s records also show that the immigration officer who interviewed Mr Kumar on 28 December 2008 assessed Mr Kumar as “not being of character concern” and consequently he was “immigration cleared”.
On 6 June 2013, Mr Kumar was granted a “Temporary Business Entry (Class UC) subclass 457” visa, which is valid until 28 May 2017.
In October 2013, Ms Nair’s daughter, Ms Ananiya Nair (born on 14 April 2007) from a previous relationship in Fiji, moved from Fiji to Perth, Western Australia, to live with Ms Nair and Mr Kumar.
On 3 December 2014, Ms Nair applied for a “Skilled – Independent Permanent (Class SI)” visa, naming Mr Kumar and her daughter as “Secondary Applicants”.
In that application, in response to the question “Has any applicant ever been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?” it was declared that one of the “Secondary Applicants”, namely Mr Kumar, was convicted of common assault in Fiji in 2008, for which he had paid a fine.
In a “Personal particulars for assessment including character assessment” Form 80, dated 3 April 2015 (Form 80), in response to the question “Have you, or any other person included in this application, ever: been convicted of an offence in any country (including any conviction which is now removed from official records)?” Mr Kumar answered:
Sept 2008 in Fiji charged with common assault and paid a fine.
8 Aug 2013, Driving under the influence of alcohol – Community order based for 6 months and licence disqualified from for 10 months.
The Minister subsequently sought documents from the relevant authorities in Australia and Fiji in relation to Mr Kumar’s criminal record.
An Australian Federal Police “National Police Certificate”, dated 9 February 2015, records that, on 8 August 2013, Mr Kumar was convicted in the Armadale Magistrates Court of “Driving Under the Influence of Alcohol” for which he received a “Community Based Order for 6 months” and his “Licence [was] disqualified for 10 months”. Western Australian Police Service records show that Mr Kumar was apprehended by police at 12.55am on Sunday 21 July 2013 in a McDonald’s car park in Armadale and he had a blood alcohol level of 0.183 at the time of the incident.
A “Previous Convictions” certificate received from the Fiji police Criminal Records Office records that Mr Kumar has been convicted of the following offences:
Date Court Offence Sentence
16/01/1995 Unlawful use of horse Fined $35 in default 35 days
imprisonment
17/07/2006 Assault occasioning 12 months imprisonment
Bodily harm suspended for 2 years13/09/2007 Criminal intimidation Fined $150 in default 15
days imprisonment. 7 daysto pay. Fine paid case dropped.
The Department also received from the Magistrates Court in Suva, Fiji Islands, a “Certificate of Court Proceeding”, dated 23 July 2015 (Certificate of Court Proceeding) which records Mr Kumar’s “Assault Occasioning Actual Bodily Harm” offence dated 17 July 2001. The Certificate of Court Proceeding also records the following order:
Accused Convicted As Charged.
Accused is sentenced to 12 months Imprisonment, suspended for 2 years.
Accused not to harass his wife or their child in any way whatsoever.
No transcript of Mr Kumar’s Magistrates Court proceeding, relating to his assault occasioning bodily harm conviction, has been provided.
Mr Kumar provided a Statutory Declaration, dated 12 April 2015, to the Department in which he outlined the circumstances of his three Fiji convictions, as follows:
·In January 1995 I was charged with Unlawful use of horse:
Case number 31/95- Ba Magistrates Court; Fiji -16/1/1995
l trusted a friend who told me that I could use his horse. There were two horses tethered together in the farm and it was relatively dark. One of the horses was not his and he pointed that horse so I rode it away. In the morning when the owner found out that his horse was missing he reported to police. By that afternoon I came back to return the horse only to find out the blunder and apologised to the owner. The case against me was already lodged and as a result I had to go to court to answer the charges. I was fined $35.00 and in default 35 day's imprisonment.
·In July 2006, I was charged with - Assault occasioning actual bodily harm:
Case Number 281/06, Suva Magistrates Court, Fiji -17/07/2006
This case concerns my ex-wife HEMA SHALINI SAVITA RAM.
We got divorced on 19/9/2002; case number 155/2002 at Lautoka Magistrates Court. At the time of this incident I was employed at KAVA 2000 in Flagstaff, Suva. Workers at the store were separated from customers by a grill that ran across the floor. Around the end of June or early July of 2006, I was in the shop when my ex-wife entered the shop and started abusing me. She wanted me to open the grill so she could come inside. I asked her to leave and she got agitated and continued the tirade but eventually left. The following day I was approached by the Police officers from Flagstaff Police Post informing me of a complaint against me. I was charged for assaulting my ex-wife.
On 17/7/2006 eventually I met my ex-wife in court and inquired on the circumstances of the incident; where she withdrew the case against me and I was sentenced to 12 months’ imprisonment for 2 years, suspended for 2 years.
·In September 2007 I was charged with Criminal Intimidation:
Case-number 381/06- Ba Magistrates Court; Fiji—13/09/2007
Around early to mid-August of 2007 I was driving my van from home to a friend's place when I was confronted with a brawl on this particular road that I was travelling on. I stopped and got off to inquire as I knew a few people among the crowd. There were threats made from both sides and eventually everyone left and I drove away. The following day I was arrested by the local police and taken to the police station where I was alleged to have threatened one of the parties involved in the brawl. I refuted the allegation but was forced into signing a statement to admit to the allegation. I was therefore charged and taken to court where I was again mis-lead into pleading guilty to the charges on the proviso that I will get acquitted. Instead I got a fine of $150.00, in default 15 days imprisonment. On 25 June 2015, the Department wrote to Mr Kumar indicating its intention to consider refusal of Mr Kumar’s visa application pursuant to s 501(1) of the Migration Act and inviting Mr Kumar to respond.
In a further Statutory Declaration, dated 23 July 2015, Mr Kumar describes the background to his assault occasioning bodily harm conviction, involving his first wife, Ms Ram, as follows:
9. First Marriage
10.I married my first wife Hema Shalini Savita RAM on 21 October 1993 in Fiji. I was aged 22 years and she was 18 years of age at the time of our marriage.
11.We stayed with my parents at their home in BA as we could not afford our own accommodation. I was poorly paid as a labourer and Hema did not work outside the home.
12.There was friction between Hema and my parents and after a year, we eventually moved out of their home to Hema‘s parents home which was in the same village, Vitunl BA.
13.Hema's 2 sisters and brother were also staying with her parents when we moved into their tiny home. This was not easy for our marriage.
14.We began to experience marital issues and most of these centred on Hema wanting to control my every movement. Hema expected me to do as she wished and was not happy if I did not do so.
15.I am by nature a soft spoken person. I try to speak slowly as I nave speech impairment - I stammer. I understand what is happening but can't respond verbally quickly as I would start stammering.
16.I felt she was bullying me during our years of marriage as I could not retaliate verbally.
17. We separated in or about 1998 and I moved back to my parent's home.
18.I had no support through counselling from professional people as they have here in Australia or mediation from family members.
19.My wife was continuously torturing me about little things that I wasn't capable of handling and was belittling me. I suffered from depression as a result.
20. We finally divorced In September 2002.
21.She wanted us to reconcile and she would sometimes go to my work place or home to find me. This would occur once or twice a year before and after the divorce.
22.In January 2006. I moved to Suva (4 to 5 hours' drive from BA) and commenced working at KAVA 2000. (located at 60 Bau Street, Flagstaff. Suva), a small Mini Mart (small groceries shop) owned by my brother.
23. In or about July 2006, an Incident occurred at my work place. KAVA 2000.
To the best of my recollection, the following is what happened.
24.There is a grill that separates the cashier from the customers at KAVA 2000. I was behind the grill serving as the cashier when Hema arrived at about evening time.
25.She started making a scene at the supermarket and wanted to speak to me inside my grilled space. I refused to unlock the grill and she got more and upset when I would not give in to her demands.
26.Despite the proximity of the supermarket to the police station (about 500 metres away) Hema only made a report to the police the next day. She reported and accused me of assaulting her.
27.The police told me she had some bruises, I do not know how and where she had obtained the bruising but I did not touch her, let alone assault her.
28.At the police station, the police forced me to sign a statement that I assaulted her.
29.She had instigated the event and embarrassed me at my work place even though we were divorced for more than four years.
30.My lawyer advised me to plead guilty as a trial 'would be long drawn and expensive. He told me the sentence could be 12 months imprisonment and \ am likely to get a 2 year suspended sentence.
31.He explained that meant I would not be imprisoned if I do not commit an offence the next two years.
32. That way the matter could be disposed summarily in 1 hearing.
33.I was then beginning the process of looking for work in Australia and I did not have the financial resources to fight the matter in court.
34.I requested for a copy of the transcript from the Magistrates Court in Suva a few weeks ago but have yet to receive it.
35.I was given a spent conviction and I did not know that I had to declare an offence which I did not go to jail for in my passenger card as well as our Subclass 189 applications.
On 23 August 2015, Mr Kumar’s migration agent, Ms SanLing Chan, provided the Department with submissions in response to the Department’s letter, dated 25 June 2015. In those submissions, Mr Kumar’s migration agent addressed the relevant considerations in “Ministerial Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction No 65).
On 12 January 2016, a delegate of the Minister made the following decision:
I have considered all relevant matters including an assessment of the character test as defined by subsection 501(6) of the Migration Act 1958, Ministerial Direction 65 and all evidence before me provided by, on behalf of, or in relation to Mr Kamlesh KUMAR in connection with the proposed refusal of his Skilled – Independent (Permanent) (Class SI) visa application.
I have decided that:
…
Mr Kumar has not satisfied me that he passes the character test. I have decided to exercise my discretion under subsection 501(1) of the Act to refuse his application for a visa. I hereby refuse his application for a Skilled – Independent (Permanent) (Class SI) visa. My reasons for this decision are set out in the attached Statement of Reasons (Minister’s Decision).
By letter to his migration agent, dated 24 February 2016, Mr Kumar was notified of the Minister’s Decision.
On or about 26 February 2016, Mr Kumar applied to the Tribunal for a review of the Minister’s Decision.
Mr Kumar is currently being held at a detention centre in Western Australia. Mr Kumar’s “Temporary Business Entry (Class UC) subclass 457” visa (which is valid until 28 May 2017) will be cancelled, by operation of law, if the Tribunal affirms the Minister’s Decision.
issues
The issues for consideration by the Tribunal are:
(i)whether Mr Kumar passes the “character test;” and
(ii)if not, whether Mr Kumar’s visa should be refused to be granted, taking into account the relevant considerations in Direction No 65.
consideration
The character test
The Tribunal must first consider whether the applicant has satisfied the Tribunal that he passes the character test pursuant to s 501 of the Migration Act.
Section 501 of the Migration Act deals with refusals or cancellations of visas on character grounds.
Pursuant to s 501(1) the Minister (or Tribunal upon review) may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the “character test” (in s 501(6) of the Migration Act). This power is discretionary.
Section 501(6) provides that a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)).
Section 501(7) of the Migration Act relevantly provides:
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more.
It is common ground that Mr Kumar has a “substantial criminal record”, as defined in s 501(7)(c) of the Migration Act as a result of his 2008 conviction for assault occasioning bodily harm in Fiji for which he received a sentence of 12 months’ imprisonment, suspended for 2 years and, therefore, he does not satisfy the “character test” in s 501(6) of the Migration Act (pursuant to s 501(6)(a) of the Migration Act).
Relevant considerations in deciding whether to refuse Mr Kumar’s visa
In considering whether Mr Kumar’s visa should be refused, the Tribunal must comply with Direction No 65: s 499(2A) of the Migration Act. Direction No 65 was issued by the Minister on 22 December 2014 and is binding on all decision-makers from that date. Direction No 65 provides guidance to decision-makers on the application of the character test and the exercise of the discretion.
Paragraph 6.3 of Direction No 65 sets out a number of principles, including the following:
6.3 Principles
…
(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 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.
…
(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) of Direction No 65 provides guidance as to how this discretion is to be exercised. Paragraph 7(1) of Direction No 65 states:
7. How to exercise the discretion
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
(a)must take into account the considerations 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;…
Paragraph 8(1) of Direction No 65 states:
8. Taking the relevant considerations in account
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case…
Part B of Direction No 65 sets out considerations that are relevant in exercising the discretion in s 501(1) of the Migration Act.
Primary considerations
Paragraph 11(1) of Direction No 65 sets out the following three “primary considerations” that must be taken into account in deciding whether to refuse a person’s visa:
(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.
Each of the three “primary considerations” is addressed in relation to Mr Kumar, in turn, below.
(i)Protection of the Australian community from criminal or other serious conduct
In relation to paragraph 11(1)(a) of Direction No 65 (i.e. protection of the Australian community), paragraph 11.1 of Direction No 65 provides:
11.1 Protection of the Australian community
(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. [Emphasis added]
Nature and seriousness of the conduct
In relation to paragraph 11.1(1)(a) of Direction No 65 (i.e. the nature and seriousness of the non-citizen’s conduct to date), paragraph 11.1.1 of Direction No 65 provides:
11.1.1 The nature and seriousness of the conduct
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date, decision-makers must have regard to:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;
(b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(c)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
(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.
The Tribunal’s findings on the nature and seriousness of Mr Kumar’s conduct to date are as follows.
Sentence imposed – paragraph 11.1.1(1)(e)
In relation to the unlawful use of a horse offence in Fiji on 16 January 1995, Mr Kumar received a fine of $35, with 35 days imprisonment in default. This offence occurred more than 21 years ago outside Australia. The offence itself was not serious, the sentence imposed in respect of the offence was not serious and Mr Kumar has not engaged in similar conduct since, either overseas or in Australia.
No sentencing remarks have been provided in respect of Mr Kumar’s assault occasioning bodily harm conviction in Fiji on 17 July 2006. Further, no evidence was provided by Mr Kumar’s ex-wife, Ms Ram, in relation to the circumstances of the offence. The only account of the incident is Mr Kumar’s own account, as set out in his Statutory Declarations (refer to paragraphs 24 and 25 above) and as described in his oral evidence before the Tribunal.
It is well-established that the Tribunal cannot go behind a conviction and examine the facts upon which it is based: Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575; Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135; Saffron v Federal Commissioner of Taxation (No 2) (1991) 30 FCR 578; 102 ALR 19 at 22 and Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 62 ALD 673 at [41] to [45]. However, that is not to be taken as denying the right of the applicant to present to the Tribunal matters pertaining to a conviction provided that they do not contradict the facts upon which the jury must have found in arriving at a conviction: Re Du Pont and Minister for Immigration and Ethnic Affairs (1983) 5 ALN N143.
The Minister submitted that Mr Kumar’s assault occasioning bodily harm offence was “domestic” in nature and should, therefore, be viewed as “additionally” serious. Mr Kumar’s evidence before the Tribunal was that the incident took place at midnight in public (i.e. in his brother’s shop, called “KAVA 2000”, where Mr Kumar was working alone at the time). There were customers present in the shop at the time of the incident. However, as Ms Ram did not report the incident to the police until the next morning, Mr Kumar was unable to obtain any witness statements from the customers who were present at the time of the incident. Further, at the time of the incident, Mr Kumar was already divorced from his ex-wife for at least 4 years (having been divorced from her since 2002). In such circumstances, the offence cannot be regarded as truly “domestic” in nature.
While assault occasioning bodily harm is undoubtedly a serious offence, the Fijian Magistrates Court chose to impose a sentence of 12 months imprisonment, suspended for 2 years. The suspension of the sentence suggests that the court viewed the assault as being at the lower end of the scale of seriousness. Further, the offence occurred almost 10 years ago and Mr Kumar has not engaged in similar conduct since, either overseas or in Australia.
In relation to the criminal intimidation offence in Fiji on 13 September 2007 (involving Mr Kumar trying to stop a fight/break up a brawl), Mr Kumar received a $150 fine, with 15 days imprisonment in default. The criminal record shows that the fine was paid and the case was dropped: refer to paragraph 21 above. This conviction occurred more than eight years ago, the sentence imposed was not serious and Mr Kumar has not engaged in similar conduct since, either overseas or in Australia.
In relation to Mr Kumar’s drink driving conviction in Australia on 8 August 2013, Mr Kumar received a community based order for six months and was disqualified from driving for 10 months. No term of imprisonment was imposed in relation to this offence. This offence occurred almost 3 years ago and Mr Kumar has not engaged in similar conduct since, either overseas or in Australia. Further, it should be noted that Mr Mukesh Mani, a member of the Fijian community who has known Mr Kumar for 7 years, gave evidence that he assisted Mr Kumar with an application for an extraordinary licence, following his licence disqualification, and that Mr Kumar was successful in obtaining an extraordinary licence. The fact that the Magistrates Court chose to grant Mr Kumar an extraordinary licence suggests that it did not view Mr Kumar at risk of reoffending and viewed the drink driving offence as being at the lower end of the scale of seriousness.
Frequency and trend of offending – paragraph 11.1.1(1)(f)
Over the period 1995 to 2013, being an eighteen year period, Mr Kumar committed 4 unrelated offences (three in Fiji and one in Australia), none of which, on the evidence available, saw him actually spend any time in prison in Fiji or Australia.
No trend is discernible from Mr Kumar’s offending conduct. Mr Kumar has not offended overseas or in Australia since August 2013 (i.e. for almost three years).
False or misleading information – 11.1.1(1)(h)
It is common ground that Mr Kumar has provided false or misleading information to the Department (including by failing to disclose prior criminal offending) on a number of occasions.
Mr Kumar declared his three criminal convictions in Fiji on his “Incoming passenger card” on the first occasion he entered Australia on 28 December 2008, at which time he was intercepted at the airport by an immigration officer and questioned about his convictions. The immigration officer assessed Mr Kumar as not being of “character concern” and was thus “immigration cleared”. However, Mr Kumar did not declare his three criminal convictions in Fiji in his “Incoming passenger cards” when he subsequently entered Australia on 6 February 2010, 9 September 2010, 10 June 2013 and 31 October 2013.
It was open to the Department when Mr Kumar first entered Australia on 28 December 2008 to investigate his three convictions in Fiji more closely and decide whether it was appropriate to let Mr Kumar enter into and stay in Australia. However, no further action was taken in that regard until the present visa application was lodged on 3 December 2014 (almost six years later) during which time Mr Kumar has largely remained in Australia, developed close ties to the Australian community and committed no offences, other than the drink driving incident in 2013 (which was almost three years ago now).
When applying for the visa the subject of this application, Mr Kumar declared that he was convicted of assault and disclosed his conviction for drink driving in Australia, but provided inaccurate information about the sentence he received and failed to disclose other offences for which he was convicted in Fiji. It was only after the Department put information to Mr Kumar that he properly acknowledged the convictions and sentences.
The evidence shows that Mr Kumar’s education is limited (having left school at the Australian equivalent of Year 10 high school). In such circumstances, it is understandable that Mr Kumar may have thought that as he had declared his three convictions in Fiji on his “Incoming passenger card” on the first occasion that he entered Australia (in December 2008), at which time he was assessed by an immigration officer as not being of “character concern” and “immigration cleared”, that he did not need declare the convictions on each subsequent occasion that he entered Australia: refer to paragraph 13 above.
In his Statutory Declaration, dated 23 July 2015, Mr Kumar stated that he was “given a spent conviction” and that he did not know that he had to declare an offence for which he did not go to jail on his incoming passenger cards or his visa applications: refer to paragraph 64 below. As a matter of law, it is clearly not the case that Mr Kumar was given a “spent” conviction in relation to his assault occasioning bodily harm offence. However, given Mr Kumar is not a lawyer and, as stated above, is of limited education (having left school at the Australian equivalent of Year 10 high school) his description of his sentence as being “spent” (as opposed to being suspended for two years) should be afforded little weight.
Risk to the Australian community
In relation to paragraph 11.1(1)(b) of Direction No 65 (i.e. the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct), paragraph 11.1.2 of Direction No 65 provides:
11.1.2The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.
Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable.
(2)In addition, decision-makers should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(3)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence from independent and authoritative sources on the likelihood of the non-citizen re-offending; and
ii. evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and
iii. the duration of the intended stay in Australia.
(4)Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether- there are strong or compassionate reasons for granting a short-stay visa.
In his Statutory Declaration, dated 23 July 2015, Mr Kumar states the following in support of his application:
36.In the last 8 plus years since the incident, I have not re-offended except for a minor offence in 2007 and a drink driving offence in 2013. Kindly refer to my statutory declarations dated 12 April 2015 which had been forwarded to the department previously.
37. I have been
a. a loyal and honest employee at all my work places,
b. a loving and supportive husband to my wife Ashika,
c. A responsible stepfather to Ashika’s daughter;
d. A valued member of the Fijian community as well as
e. A faithful friend
38.Kindly refer to all the statements from my friends in regard to my good character.
39.I am a person of good character despite the spent conviction. Kindly take into consideration and place weight on the fact that the incident it arose out of a complex relationship with my ex-wife who I feel has been bullying me during and after the end of our marriage.
40.As I am of slow speech, she has always had the upper hand as I cannot defend myself verbally with her.
41.I have never been physically, emotionally or verbally abusive to her or to anyone.
42.Please take into account my contribution to the local community and that I am not a threat to society. It was a single isolated even which I wish to put behind me.
43.I am now and have been in a loving and stable relationship with my wife Ashika and we plan to buy our own home as soon as our permanent residence application has been granted.
44.Her eight year old daughter, Ananiya sees me as her father. I pick her from school when Ashika is on night shifts. We both dote on her and enjoy our family times together.
45.She is well settled at…..Primary School and has a group of friends from the neighbourhoods and school.
46. Ashika has a job as a Registered Nurse and I am gainfully employed.
47.We are both contributing and of benefit to the Australian community through our employment, taxes as well as our relationships with our workmates and the local Fijian community living in Perth.
48.I have and only (sic.) been a positive member of the community since my arrival in Australia (except for a drink driving offence in 2013 when I was foolish and I have deep regret of) am of no risk at all to the Australian public.
In addition, Mr Kumar provided a number of statements from work colleagues (including a reference from his former employer, Interpower Australia, dated 19 March 2015, and a reference from Ms Karen Caplan his boss at DVG, Automotive Group, Melville - where he has been employed since 23 June 2014) and from friends, all of whom state unequivocally that Mr Kumar is of good character.
Ms Caplan’s Witness Statement, dated 6 April 2016, states:
7.His work ethic and work has always been of the highest level, never hesitating to assist others to complete their duties.
8.He worked very well in the small team of four detailers and they detail at least 150 cars per week.
9.The team works under tremendous pressure as we have a target of 100 cars per week that have to be delivered to our clientele. Once these vehicles are completed and ready for delivery, Kamlesh will then deliver them to the showroom to his sales colleagues, who have all commented on what a nice and polite person [he] is.
…
11.Mr Kumar brings cohesiveness to the team and this is important for the business from a productivity point of view.
12.…Mr Kumar is a well-respected member of my team and is very well regarded by his peers and upper management.
13.…Mr Kumar has never been a risk of harm to his workplace colleagues and our clientele whilst he was working for us.
14.To the contrary, he has been exemplary in his behaviour to his work mates and been of good influence in all aspects of social behaviour and interaction in the work place.
15.He is responsible and has been an asset to my team and I have no hesitation in employing him when his immigration matters are resolved and if we still have the need for his services.
Ms Caplan also gave oral evidence at the hearing (by telephone). Ms Caplan told the Tribunal that Mr Kumar’s work had always been “excellent” and that his position at DVG, Melville was being held open for him so that if he is successful in this application he can resume his role immediately.
Mr Samendra Odean, Mr Kumar’s friend, provided a Witness Statement (undated) in support of Mr Kumar’s application, stating:
11.In my interaction with Kamlesh, I have found him to be heavily committed to his family and the community. He is always present at religious festivals and prayer meeting whether it be at someone’s house or at the temple.
12.His contribution is often noticeable as he [was] always lending a hand in anything that needs to be done during the occasion from helping in cooking to washing the dishes.
…
14.He spends a lot of time caring for his step daughter while his wife is at work. He is always well groomed and neatly dressed.
15.Having socialised with Kamlesh Kumar for the last seven years I have absolutely no reasons to doubt his character.
Mr Odean also appeared at the hearing and gave oral evidence which was similar in nature.
Mr Kumar’s assault occasioning bodily harm offence, relating to his ex-wife, occurred in Fiji 10 years ago and although sentenced for 12 months’ imprisonment for the offence, his sentence was suspended for two years. Mr Kumar has never spent any time in prison in either Fiji or Australia. Mr Kumar has lived in Australia since December 2008 (i.e. for more than 7 years) without incident, except for the drink driving incident in August 2013 and Mr Kumar has stated that his drink driving offence was “foolish” and that he “deeply regrets” it: refer to paragraph 64 above. In his oral evidence before the Tribunal, Mr Kumar described the circumstances surrounding his drink driving offence. Mr Kumar explained that on the night he was convicted he had been drinking “Kava” with a friend, Kava being a drink commonly consumed in Fiji. Mr Kumar described Kava as a powder from the root of a plant which is mixed with water to make a drink. How strong the drink is depends upon how much water is mixed with the powder (i.e. how diluted the mixture is). Mr Kumar said that he recalls drinking about 6-7 litres of Kava on the night he was convicted, followed by a small glass of another drink. Mr Kumar said that at around midnight he became hungry and decided to drive to the local McDonalds drive through in Armadale. Mr Kumar said that he thought he was under the limit and that it was safe for him to drive. Western Australian Police Records show that, on the night of the incident, the police were called and asked to come to McDonalds in Armadale because Mr Kumar’s car had mounted the limestone wall of the carpark, resulting in his car overhanging a 1 metre drop and the exit driveway being blocked. After the police arrived, they took Mr Kumar to the local police station and tested his blood alcohol level. Although the Tribunal cannot go behind a conviction and examine the facts on which it was based, the Tribunal makes the observation that on the night of the incident Mr Kumar had predominantly been drinking “Kava” (a “home” mixed drink made from powder from the root of a plant mixed with water, as opposed to a commercially packaged alcoholic beverage - which indicates the percentage alcohol content on the labelling). As such, Mr Kumar’s position that he did not know he was over the limit seems more plausible. However, this does not excuse or detract from the fact that Mr Kumar drove a motor vehicle in such circumstances, potentially putting his own life and the lives of others in danger.
Mr Mukesh Mani, a member of the Fijian community who has known Mr Kumar for 7 years, gave evidence that he had assisted Mr Kumar with an application for an extraordinary licence, following his licence being suspended, and that Mr Kumar was successful in obtaining an extraordinary licence. This indicates that the Magistrates Court considered Mr Kumar at low risk of re-offending and the drink driving offence as being at the lower end of the scale of seriousness.
In a character reference (undated), Mr Mani states:
I have known Kamlesh for the past 7 years as a member of the Fijian Community. Kamlesh is an exemplary individual with excellent moral and ethical values. Kamlesh has been of outstanding character and a dedicated, reliable and honest member of our community and the wider Australian community since his arrival in Australia.
……
Kamlesh is an asset to the community and is well-liked and accepted. Kamlesh has a very bright future and a responsible family man in providing for his young family.
The evidence before the Tribunal shows that, since arriving in Australia on 28 December 2008, Mr Kumar has always been gainfully employed and, indeed, currently has a job waiting for him if he is successful in this application. Mr Kumar has been helping his wife, Ms Nair, raise her primary school aged daughter (Ms Nair described Mr Kumar as a “wonderful father”) and has been a valued member of the community. That is, the evidence before the Tribunal shows that Mr Kumar is a hardworking family man (a good husband and father) with strong ties to his local community: refer to paragraphs 65-72 above and 77-78 below.
Based on this evidence, the Tribunal considers that the risk of Mr Kumar re-offending is negligible.
(ii) The best interests of minor children in Australia
In relation to paragraph 11(1)(b) of Direction No 65 (i.e. the best interests of minor children in Australia), paragraph 11.2 of Direction No 65 provides:
11.2 Best interests of minor children in Australia affected by the decision
(1)Decision-makers must make a determination about whether refusal is, or is not, in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse to grant the visa is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future (taking into account the length of time until the child turns 18), and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have, a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Mr Kumar has a step-daughter, Ms Nair’s daughter, who is currently aged 9 years. Mr Kumar has been a stepfather to Ms Nair’s daughter since she arrived in Australia in October 2013. Ms Nair’s nine year old daughter has had Mr Kumar’s parental care for almost three years. Mr Kumar could potentially continue to assume a parental role in relation to Ms Nair’s daughter for a further 9 years until she turns 18 years of age.
The Statutory Declaration provided by Mr Kumar’s wife, Ms Nair, dated 26 March 2015, states:
·My husband Kamlesh Kumar has been a very good husband who has taken care of both my daughter and myself very well
·My daughter has become very attached to my husband Kamlesh Kumar, as she treats him like her own father
·My husband Kamlesh Kumar is a very good charactered person and he has been a very good husband and a good father to my daughter
·My daughter Ananiya Nair is attending school in Australia since her arrival and has adapted to the environment very well, and if our permanent residency is refused and we have to return to our home country, more than anyone, my daughter will be affected and it will be detrimental to her mental health
Ms Nair’s oral evidence before the Tribunal was that ever since Mr Kumar had gone into detention her daughter had seemed stressed, anxious and withdrawn. Ms Nair said that her daughter’s school had recently contacted her to advise her that her daughter had not been concentrating well at school and that her attention span had decreased. Ms Nair said that she attributed her daughter’s changed behaviour to Mr Kumar’s absence. Ms Nair said that her daughter always “listens to Mr Kumar”.
No independent medical evidence was provided to the Tribunal concerning the state of Ms Nair’s daughter’s mental health since Mr Kumar had gone into detention. Despite this, it is clear from the evidence before the Tribunal the best interests of Mr Kumar’s step daughter may be adversely affected if Mr Kumar’s visa is refused and Mr Kumar has to leave Australia. If Ms Nair’s daughter is separated from Mr Kumar she will lose the emotional and financial support afforded to her by him and she will miss the presence and influence of a father (albeit not her biological father) during her formative years.
(iii)Expectations of the Australian community
In relation to paragraph 11(1)(c) of Direction No 65 (i.e. expectations of the Australian community), paragraph 11.3(1) of Direction No 65 provides:
11.3 Expectations of the Australian Community
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because 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.
Mr Kumar came to Australia on 28 December 2008 (i.e. he has been living here for more than seven years). In that time, Mr Kumar has obeyed the laws of Australia, aside from one drink driving offence in 2013 (which is almost three years ago now). Mr Kumar’s three convictions in Fiji, prior to coming to Australia, all occurred a number of years ago (the unlawful use of a horse conviction was in January 1995, the assault occasioning bodily harm was in July 2006 and the criminal intimidation conviction was in September 2007) and only one of the convictions involved a serious offence (namely the assault occasioning bodily harm in 2006, which occurred almost ten years ago).
The Tribunal considers that the Australian community would expect that a non-citizen who:
· lawfully came to Australia more than seven years ago on a 457 visa;
· has a wife and step-daughter (who is helping raise) in Australia;
· presents little or no risk to the Australian community;
· has developed close community ties and friends in Australia;
· has been gainfully employed at all times since arriving in Australia; and
· who has employment presently available to him in Australia;
should be entitled to remain in Australia.
Other considerations
Paragraph 12(1) of Direction No 65 states:
12 Other considerations – visa applicants
(1) In deciding whether to cancel a visa, other considerations must be
taken into account where relevant. These considerations 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.
The Minister’s Decision, although not a decision to “cancel” a visa but, rather, a decision to refuse to grant a visa is, in practical terms, akin to a decision to cancel a visa held by Mr Kumar. Consequently, the Tribunal considers it appropriate in Mr Kumar’s case to take into account other relevant considerations. In this case, the only “other consideration” which would appear to be relevant is the impact of the refusal of Mr Kumar’s visa on his family members and, in particular, the impact on his wife, Ms Nair, and his step-daughter.
Impact of visa refusal on family members
In relation to paragraph 12.1(b) of Direction No 65 (i.e. impact on family members), paragraph 12.2 of Direction No 65 provides:
12.2 Impact on family members
(1)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.
Mr Kumar’s wife, Ms Nair, is a registered nurse who currently holds a “Temporary Business (subclass 457)” visa, which is valid until mid-2017. Refusing Mr Kumar’s visa will have no consequences in relation to Ms Nair’s subclass 457 visa. However, Ms Nair is the “Primary Applicant” for a permanent visa, including her daughter and Mr Kumar as “Secondary Applicants”. If Mr Kumar’s visa is refused pursuant to s 501(1) of the Migration Act, he will not meet Public Interest Criterion 4001. It is a condition of the permanent visa that all members of “Primary Applicant’s” (i.e. Ms Nair’s) family meet all public interest criteria. If Mr Kumar remains part of his wife’s (Ms Nair’s) family at the time of the decision on her visa application, all applicants would then need to be refused. This would clearly have a negative impact on Mr Kumar’s wife and step-daughter. As noted in the Minister’s Decision (at [54]), it is likely that Ms Nair:
would suffer some adverse impact to her economic and career prospects if Mr KUMAR’s visa is refused.
In her Statutory Declaration, dated 26 March 2015, Ms Nair stated that if her permanent residency is refused, she will have to return to Fiji. Ms Nair also stated in her Statutory Declaration and oral evidence at the hearing that her daughter has adapted to Australia very well and that returning to Fiji would be detrimental to her daughter’s mental health (although there is no independent medical evidence of this): refer to paragraphs 77-78 above. Australia presently has a shortage of registered nurses. If Mr Kumar’s visa is refused and Ms Nair has to leave Australia, Australia will lose an experienced and qualified registered nurse.
In his Statutory Declaration, dated 23 July 2015, Mr Kumar stated that his step-daughter is well settled at primary school in Western Australia and has a group of friends from the school and the neighbourhood: see paragraph 25 above. This would likely be affected if Mr Kumar’s visa is refused.
decision
For the above reasons, the Tribunal sets aside the decision under review and substitutes that decision with the decision that the discretion in s 501(1) of the Migration Act 1958 should be exercised in Mr Kumar’s favour and the matter be remitted to the Minister with a direction that Mr Kumar’s application for a “Skilled – Independent (Permanent) (Class SI)” visa not be refused.
I certify that the preceding 89 (eighty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh ........[Sgd]................................................................
Administrative Assistant
Dated 16 May 2016
Date of hearing 6 May 2016 Counsel for the Applicant Mr D Blades Representative for the
RespondentMs A Ladhams Solicitors for the Respondent
Australian Government Solicitor
Key Legal Topics
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Immigration
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Administrative Law
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Statutory Interpretation
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Judicial Review
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