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

[2023] AATA 3246

Kumar and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3246 (9 October 2023)

Division:GENERAL DIVISION

File Number:          2023/0551

Re:Virender Kumar

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Theodore Tavoularis

Date of decision:               9 October 2023

Date of written reasons:         12 October 2023

Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision dated 19 April 2018 made by a delegate of the Respondent and substitutes it with a decision that the discretion in s 501(1) of the Migration Act 1958 (Cth) should not be exercised to refuse the Applicant’s visa.

.........................[SGD]...........................

Senior Member Theodore Tavoularis

Catchwords

MIGRATION – refusal of a Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visa under s 501(1) of the Migration Act 1958 (Cth)- where the Applicant does not pass the character test- whether discretion to refuse the visa under s 501(1) of the Migration Act 1958 (Cth) should be exercised- consideration of Ministerial Direction No. 99- where interests of minor children and ties to Australia outweigh other primary considerations in favour of refusing the visa- Tribunal finding that the discretion under 501(1) of the Migration Act 1958 (Cth) should not be exercised to refuse the visa- decision under review set aside and substituted.

Legislation

Acts Interpretation Act 1901 (Cth)

Administrative Appeals Tribunal Act 1975 (Cth)

Family Law Act 1975 (Cth)

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Cases

Kumar and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1913
PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162
Uelese v Minister for Immigration and Border Protection [2015] HCA 15

Walker v Minister of Home Affairs [2020] FCA 909

Secondary Materials

Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)

REASONS FOR DECISION

Senior Member Theodore Tavoularis

12 October 2023

1. The Applicant is a 35 year-old male national of the Republic of India. His movement history indicates he first arrived here in February 2008 on a student visa and has since remained onshore, having never departed Australia.[1] The Applicant applied for a Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visa (‘the Visa’) on 7 November 2013.[2] This Visa was refused by a delegate of the Respondent on 19 April 2018 pursuant to  

   
   

   s 501(1) of the Migration Act 1958 (Cth) (‘the Act’) (‘Decision Under Review’) because the Applicant failed the character test.[3]

   [1] Exhibit R1, p 32.

   [2] Exhibit R1, pp 33-62.

   [3] Exhibit R1, pp 22-26.

2. He failed the character test pursuant to the operation of s 501(7)(c) of the Act because he had a ‘substantial criminal record’ due to him receiving a term of imprisonment of 12 months or more. Specifically, the Applicant was convicted of five Counts of ‘Possess Identity Info to Commit Etc Indictable offence’ for which he received a sentence of 15 months in June 2013. Further particulars of the sentence appear in the table that follows.

3. On 30 January 2023, the Applicant applied to this Tribunal for a review of the delegate’s decision to refuse him the Visa (‘review application’). The review application was identified as being out of time and I conducted a series of interlocutory hearings across 7 February, 24 February and 3 April 2023 to determine whether this Tribunal had jurisdiction to entertain the instant application.

4. On 30 June 2023 I found that this Tribunal did have jurisdiction to proceed to review of this review application.[4] As a result of my finding on jurisdiction, the Respondent was caused to re-notify the Applicant pursuant to s 501G of the Act. This re-notification occurred on

   
   

   17 July 2023 which, in turn, enlivened the Tribunal’s statutory obligation to determine this application within 84 days after the date of re-notification.[5]

   [4] Kumar and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1913.

   [5] Pursuant to s 500(6L) of the Act.

5. The substantive hearing (‘Hearing’) for this merits review application proceeded before me on 21 and 22 September 2023. The Tribunal was assisted by a Hindi speaking interpreter who was present for both Hearing days. Both parties were (with respect) quite ably represented by legal representatives at the Hearing. In the Hearing, both parties confirmed the 84^th day in this matter was 9 October 2023.[6]

   [6] Transcript p 113, lines 9-25.

6. The Applicant appeared by video on both days of the Hearing. An initial list of eight witnesses (including the Applicant) was, by agreement between the parties, reduced to four witnesses, including the Applicant, each of whom provided both oral and written evidence to the instant Hearing. Those four witnesses comprised:

   ·the Applicant;

   ·Mr Rarish T Raveendran (Caseworker with KARI[7]);

   ·Ms Kimberly Lane (former/current partner of the Applicant);

   ·Mr Sava Tsolis (Clinical Psychologist).

   [7] KARI was established in 1999 through the creation of KARI Limited, which has long supported the Aboriginal community by designing and delivering quality programming and services. Today, KARI Limited continues to be a leader in the space of Aboriginal child protection.

7. At the commencement of the Hearing, I invited both parties to accept as true and accurate the draft exhibit register that had been previously circulated to them. Both parties confirmed that the said exhibit list was a true and correct record of the written material before the Tribunal. A copy of that exhibit list is attached to these Reasons and marked ‘Annexure A’. During the first day of the Hearing, the document currently-noted as Exhibit A15 was sought to be tendered by the Applicant. This would have quite possibly resulted in the Applicant’s breach of the two-day rule applicable to these expedited applications.[8] This risk was obviated by the Tribunal accepting the document into evidence on the second day of the Hearing.[9]

   [8] See ss 500(6H) and (6J) of the Act.

   [9] Uelese v Minister for Immigration and Border Protection [2015] HCA 15 [48], [57].

8. The Applicant’s total offending history in Australia as stated in the National Criminal History Check Report can be summarised as below:[10]

   [10] Exhibit R1, p 27.

Court	Court Date	Offence	Result
NSW Local Court	June 2016	Drive with low range prescribed concentration of alcohol	Fine: $600
NSW Local Court	November 2014	Drive with middle range prescribed concentration of alcohol	Fine: $1,000. Licence qualification: 10 months
NSW Local Court	June 2013	Possess identity info to commit etc indictable offence	Imprisonment: 15 months commencing 10/05/2013
		Possess identity info to commit etc indictable offence	Imprisonment: 15 months commencing 10/05/2013
		Possess identity info to commit etc indictable offence	Imprisonment: 15 months commencing 10/05/2013
		Possess identity info to commit etc indictable offence	Imprisonment: 15 months commencing 10/05/2013
		Possess identity info to commit etc indictable offence	Imprisonment: 15 months commencing 10/05/2013
NSW Local Court	October 2013	Common Assault	Fine: $400. Bond to be of good behaviour for 12 months

ISSUE

1. The issue before this Tribunal is:

   ·whether the Applicant passes the character test; and if not,

   ·should the discretion in s 501(1) of the Act be exercised to refuse the Visa?

   Does the Applicant pass the character test?

2. Section 501(6)(a) of the Act states that a person does not pass the character test if they have a substantial criminal record. Pursuant to s 501(7)(c) of the Act, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

3. The Applicant was sentenced to a head custodial term of imprisonment of 15 months in June 2013 on five Counts of ‘Possess Identity Info to Commit Etc Indictable offence’ via a cumulative operation of ss 501(6)(a) and 501(7)(c) of the Act, I find that the Applicant does not pass the character test.

   Should the discretion in s 501(1) of the Act be exercised to refuse the Visa?

4. For the purpose of determining whether the discretion in s 501(1) of the Act should be exercised to refuse the Visa, the Tribunal is required to consider the framework provided by Ministerial Direction 99 (‘Direction’).[11]

   [11] Pursuant to s 499 of the Act.

5. Paragraph 5.2 of the Direction provides the following relevant principles which decision makers must take into account in the process of deciding whether or not to revoke the mandatory cancellation of a person’s visa:

   (1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on noncitizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

   (2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

   (3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.

   (4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

   (5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

   (6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.

6. Paragraph 6 of the Direction requires a decision-maker to be informed by the above principles and further take into account the considerations identified in paragraphs 8 and 9 of the Direction.

7. In taking the relevant considerations into account, paragraph 7 of the Direction states:

   (1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

   (2) Primary considerations should generally be given greater weight than the other considerations.

   (3) One or more primary considerations may outweigh other primary considerations.

8. The primary considerations requiring consideration are stated in paragraph 8 of the Direction. These are:

   ·protection of the Australian community from criminal or other serious conduct;

   ·whether the conduct engaged in constituted family violence;

   ·the strength, nature and duration of ties to Australia;

   ·the best interests of minor children in Australia; and

   ·expectations of the Australian community.

9. The other considerations requiring consideration are stated in paragraph 9 of the Direction as:

   ·legal consequences of the decision;

   ·extent of impediments if removed;

   ·impact on victims; and

   ·impact on Australian business interests.

   PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT

10. Paragraph 8.1 of the Direction states:

    (1) When considering protection of the Australian community, decision-makers should keep in mind 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. In this respect, 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 they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

    (2) 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.

11. For the assessment of the nature and seriousness of a person’s criminal or other offending conduct, paragraph 8.1.1 of the Direction requires a decision-maker to have regard to:

    a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

    i. violent and/or sexual crimes;

    ii. crimes of a violent nature against women or children, regardless of the sentence imposed;

    iii. acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

    b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

    i. causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

    ii. 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;

    iii. any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));

    iv. where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;

    c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;

    d) the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;

    e) the cumulative effect of repeated offending;

    f) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

    g) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).

    h) where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

    Overview of the Applicant’s offending

12. While not unremarkable per se, the Applicant’s record of offending should not be regarded as a lengthy one in so far as the totality of his convictions is concerned. In short compass, he has committed nine offences dealt with at five separate sentencing episodes[12] ranging in time from October 2011 to July 2017. His offending has been committed across three broad realms comprising: (1) offending against the person culminating in a conviction for common assault in October 2011. This offending was committed in the context of a domestic relationship; (2) offending in the realm of fraud/dishonesty in the form of utilising false identities to obtain a financial advantage; (2) drink driving with two convictions for driving with a blood alcohol concentration in the mid-range[13] and one in the low-range.[14]

    [12] Note to reader: there are actually six separate sentencing dates in the criminal history. However one of those six comprises the Applicant’s appeal to the Goulburn District Court (heard on 5 August 2013) against his conviction on the five ‘possess identity counts’ for which he was sentenced at first instance at the Goulburn Local Court in June 2013.

    [13] That is, within a range of 0.08-0.149 blood alcohol concentration.

    [14] That is, within a range of 0.05-0.079 blood alcohol concentration.

13. In terms of sentences, his conviction for common assault in October 2011 was punished by a $400 fine and by his entry into a good behaviour bond for a period of 12 months. His possess identity offending was concurrently sentenced by a head custodial term of 15 months with a non-parole period of six months. As mentioned earlier, the Applicant’s appeal against his convictions on the five Counts of possess identity offending to the Goulburn District Court was not successful with the Appeal Court confirming the convictions. His  

    
    low-range

    drink driving was punished by a $600 fine and an automatic disqualification of his driving privileges for a statutorily-mandated period.

14. His first mid-range drink driving conviction was, in November 2014, punished by way of a $1000 fine and disqualification of his driving privileges for 10 months. The second of those convictions (in July 2017) was punished by (1) imposition of a community service order compelling the Applicant to complete 200 hours of such service; (2) disqualification of his driving privileges for nine months; (3) participating in an alcohol interlock program for a period of 24 months.

15. The Applicant was taken into criminal custody consequent upon his conviction and sentencing for the five possess identity convictions on 26 June 2013. The period of time he had to serve in actual custody was backdated to 10 May 2013 which made him eligible for release on parole on 9 November 2013.[15] Upon release on parole, he became liable for detention and removal to his country of origin.[16]

    The nature and seriousness of the Applicant’s conduct to date

    [15] Exhibit R1, p 29, lines 36-41.

    [16] Exhibit R1, p 134.

    Paragraphs 8.1.1 considerations

16. Sub-paragraph 8.1.1(1)(a): the chapeau to this sub-paragraph relevantly provides that if a non-citizen’s offending falls within the auspices of sub-paragraphs(i),(ii) or (iii), then those ‘…types of crimes or conduct…are viewed very seriously by the Australian Government and the Australian community.’[17] Here, the Applicant has a conviction for a crime of violence committed against a women. This is the abovementioned conviction for common assault in October 2011. The relevant NSW Police facts sheet records that:

    ‘Police observed the accused, Virender KUMAR and the Victim, [a female; name redacted] near the intersection of Bridge Street and George Street, Sydney. The accused and the victim were having a verbal argument at the time.

    Police observed the accused to have the victim pinned against a wall, the accused then raised his right hand with an open palm, struck the victim to the left side of her face which caused the victim to fall off the foot path [sic] due to the force of the strike.’[18]

    [17] Paragraph 8.1.1(1)(a) of the Direction.

    [18] Exhibit R3, p 28.

1. It can be safely found that the above conduct falls within the auspices of paragraph 8.1.1(1)(a)(ii) of the Direction as a crime of a violent nature committed against a woman. As such, this conduct must be found to ‘very serious’. I so find.

2. The abovementioned chapeau to sub-paragraph 8.1.1(1)(a) also permits decision-makers to have regard to unlawful conduct ‘…without limiting the range of conduct that may be considered very serious.’ I understand this language of the chapeau to sub-paragraph 8.1.1(1)(a) of the Direction to permit the characterisation of conduct as very serious even if it does not fall within the auspices of sub-paragraphs 8.1.1(a) (i), (ii) or (iii). This brings us to the Applicant’s five possess identity convictions.

3. The relevant NSW Police facts sheet summarises the factual circumstances of the offending in these terms:[19]

   [19] Exhibit 1, pp 120-121.

   ‘FULL FACTS

   The accused in these matters is Virender KUMAR, born 6th February 1988 (25 Years). About 12:30pm on Friday 10th May 2013, the accused was the driver of Victorian registered motor vehicle [license plate details redacted] in a southerly direction on the Hume Highway near Goulburn. The accused was stopped by police and produced an Indian driver's license in his name and image.

   The vehicle in which the accused was travelling was a [name of car rental business redacted] vehicle which the accused hired on Monday 6th May 2013 in his own name. The accused stated he was en route to the ACT to visit a friend. He had no luggage in the vehicle. Police had reason to search the accused vehicle, to which the accused gave informed consent.

   SEQUENCES 1 to 5.

   A search of the centre console revealed loose panels which secreted bank statements,

   consignment receipts to collect items at various ACT Post Offices and 5 Indian drivers licenses bearing the accused photograph but with each license bearing a different name.

   The Commonwealth Bank statements were also in the same names as the 5 Indian drivers licenses and all had separate mailing addresses within the ACT. The consignment receipts had one of the 5 false names handwritten on each of them with the collection point being 5 separate post offices within the ACT.

   The accused was arrested and conveyed lo Goulburn Police Station and explained his rights in police custody as per Part 9 of the Law Enforcement (Powers & Responsibilities) Act. The accused declined to take part in any form of electronic record of interview.

   Police allege the 5 Indian drivers licenses are identification information for false identities which bear the accused image. The presence of the accused [sic] image on identification information in false names shows a willingness on the accused behalf to commit or facilitate fraudulent or other indictable offences. Police allege that the 5 consignment receipts for items to be collected at 5 separate ACT Post Offices shows the accused intended to use the 5 false identities in his image to collect an item at these locations under false pretences.

   Police can show the court that each bank statement in a false name and mailing address within the ACT also stated that each account contained approximately $2,000.’

4. In sentencing the Applicant for this offending, the learned Magistrate[20] noted the following about the Applicant’s conduct:

   ‘HIS HONOUR: It is not a trivial matter, it is a deliberate course of dishonesty, and the potential has been recognised by higher courts. When people have false identities it is very difficult to detect, and as a result parliament increased the penalties because parliament expects the Courts to take action on those people who are caught. You have five licences, five different identities, plus your true identity. In relation to that I know the intention was to get mobile phones.’[21]

   [My emphasis]

   [20] Magistrate Dick, Goulburn Local Court.

   [21] Exhibit R1, p 129, lines 7-13.

5. I am satisfied that while not falling within the auspices of sub-paragraph 8.1.1(1)(a)(i), (ii) or (iii), I am nevertheless able to take this conduct into account for the purposes of assessing both its own level of seriousness as well as the level of seriousness attributable to the totality of the Applicant’s offending. The Respondent’s contention is that this aspect of the Applicant’s offending ‘should…be considered to be serious.’[22] I respectfully disagree. It was a deliberate course of conduct aimed at financial or material gain. It had the potential to cause significantly more financial harm had it not been detected when it was. I am therefore satisfied that the Applicant’s five convictions for possess identity offences point to his commission of conduct that would be viewed as very serious by the Australian Government and the Australian community.

   [22] Exhibit R2, p 4, [27].

6. Sub-paragraph 8.1.1(1)(b): none of the Applicant’s conduct falls within the auspices of sub-paragraphs (i), (ii) and (iv). He has not been involved in unlawful conduct that caused a person to become a party to a forced marriage.[23] He has not been convicted for any offence committed against vulnerable members of the community or government officials in the performance of their duties.[24]He does not have any conviction for ‘a crime committed while… in immigration detention.’[25]

   [23] Paragraph 8.1.1(1)(b)(i) of the Direction.

   [24] Paragraph 8.1.1(1)(b)(ii) of the Direction.

   [25] Paragraph 8.1.1(1)(b)(iv) of the Direction.

7. Sub-paragraph 8.1.1(1)(b)(iii) also allows a decision-maker to take into account the conduct of a non-citizen that may form the basis of a finding that he/she does not pass an aspect of the character test contained in s 501(6) of the Act. I make particular reference to s 501(6)(c) of the Act and, having regard to the nature, extent and level of seriousness of the Applicant’s offending convicted and sentenced in June 2013, I am of the view that this sub-paragraph facilitates a finding that his conduct has been at least ‘serious’ (as per the chapeau to paragraph 8.1.1(1)(b)) but more likely very serious.

8. Sub-paragraph 8.1.1(1)(c): in applying this particular sub-paragraph, I am precluded from taking into account sentences imposed on this Applicant for:

   (a)any violent offending he may have committed against women;[26]

   (b)acts of family violence;[27] and

   (c)any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.[28]

   [26] Paragraph 8.1.1(1)(a)(ii) of the Direction.

   [27] Paragraph 8.1.1(1)(a)(iii) of the Direction.

   [28] Paragraph 8.1.1(1)(b)(i) of the Direction.

9. The balance of the Applicant’s offending that can be taken into account is therefore limited to his ‘possess identity’ convictions and his ‘drink driving’ convictions. The sentences imposed by the Goulburn Local Court at the first instance and not disturbed on appeal,[29] resulted in the Applicant receiving a head custodial-sentence of 15 months with a release on parole after serving six months. On any objective view, this is a significant sentence in circumstances where it was only the Applicant’s second time before a court for sentencing and in the further circumstances of him not having previously being dealt with for such conduct.

   [29] Goulburn District Court, 5 August, 2013.

10. His sentences for drink driving are perhaps less remarkable. The sentence he received for his low-range drink driving involved the imposition of a relatively modest fine and cancellation of his driving privileges for a statutorily-mandated period. His respective convictions for mid-range drink driving involve the imposition of a significantly higher fine and respectively longer periods of exclusion from driving. The second of his convictions for mid-range drink driving saw him compelled to complete 200 hours of community service and to participate in an interlock program for 24 month period.

11. As a general rule, the imposition of a custodial term is seen as the last resort in the hierarchy of options available to a sentencing court. A judicial sentencing officer’s deployment of a custodial sentencing option must be viewed as a reflection of the objective seriousness of the offending sought to be punished.[30] Putting aside the Applicant’s sentences for drink driving, I am satisfied that the nature and extent of the sentence imposed in June 2013 for the possess identity offending does militate in favour of a finding that the totality of this Applicant’s conduct has been of an, at least, serious nature, more likely very serious nature.

    [30] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [20]-[22].

12. Sub-paragraph 8.1.1(1)(d): this sub-paragraph compels two enquiries. The first is whether the Applicant’s offending has been frequent. His offending history runs from circa October 2011 to July 2017. Across this approximate six-year period, the Applicant compiled convictions for nine offences and was dealt with at five separate sentencing episodes. This equates to the commission of well over one offence for each year of the offending history. It also equates to one sentencing episode for each year of that history. I am satisfied that the Applicant’s offending has been frequent.

13. The second enquiry involves an assessment of whether the Applicant’s conduct demonstrates any trend of increasing seriousness. Here, caution is required in reaching any such conclusion. This is because it is difficult to delineate between the relative seriousness of each of the three abovementioned realms of his offending conduct. His offending begins with an offence of violence against the person of a woman. This is very serious offending. He then commits his possess identity offences which I have found to be very serious. The totality of his drink driving conduct, although perhaps not to the same level of seriousness as contained in the first two realms is nevertheless serious conduct because it had the potential to very adversely impact other road users.

14. Therefore, I am of the view that the Applicant’s conduct has, for all intents and purposes, been of a consistently serious nature across the totality of the period during which he offended. Overall, this sub-paragraph 8.1.1(1)(d) does militate in favour of a finding that the Applicant’s unlawful conduct in this country has been of an at least serious, more likely very serious, nature.

15. Sub-paragraph 8.1.1(1)(e): there are several cumulative effects evident from the totality of the Applicant’s offending. First, he has been violent towards a woman and has been convicted and punished for that conduct. This is plainly conduct which is viewed very seriously by the Australian community and its Government. Perpetration of acts of violence against women has become an issue of growing concern for the Australian community. Second, his fraudulent/dishonest conduct in the realm of possess identity offending will have surely resulted in material loss and damage to its victims.

16. Third, his drink driving conduct has exposed other road users to significant and even catastrophic risk due to the capacity of alcohol to erode a person’s capacity to drive, manage and control a motor vehicle. Fourth, the Applicant’s commission of nine offences across a six-year offending period, together with his appearance at five separate sentencing episodes, has consumed an inordinate level of the community’s policing and judicial sentencing resources.

17. I am therefore satisfied that the aforementioned four cumulative effects of the Applicant’s repeated offending cause this sub-paragraph 8.1.1(1)(e) to militate in favour of a finding that the Applicant’s unlawful conduct in this country has been of an at least serious, more likely very serious, nature.

18. Sub-paragraphs 8.1.1(1)(f), (g) and (h): the material has nothing to say about the Applicant providing false or misleading information to the Respondent’s Department.[31] He has not received any formal or other warning about the consequences of further offending in terms of his visa status to remain here.[32] The Notice of Intention to Consider Refusal under s 501 of the Act the Applicant received on 24 April 2017 does not constitute such a ’warning’ for present purposes. There is no evidence of the Applicant committing any offence in another country.[33] These three sub-paragraphs should be put to one side and rendered neutral for present purposes.

    [31] Sub-paragraph 8.1.1(1)(f) of the Direction.

    [32] Sub-paragraph 8.1.1(1)(g) of the Direction.

    [33] Sub-paragraph 8.1.1(1)(f) of the Direction.

    Conclusion about the nature and seriousness of the Applicant’s conduct

19. I have applied each of the relevant paragraphs contained in paragraph 8.1.1(1) of the Direction to the evidence before me relating to the Applicant’s convictions between October 2011 and July 2017. I am satisfied that those relevant paragraphs give rise to a finding that the totality of the Applicant’s unlawful conduct in this country can be found to have been at least serious, more likely very serious. I so find.

    The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

20. Sub-paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view 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 risk of it being repeated may be unacceptable.

21. Sub-paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:

    (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 non-citizen re-offending; and

    (ii)    evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and

    (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 nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct

22. As mentioned earlier, there is a relatively strict three realm division to the Applicant’s offending. There is his conviction for an offence of violence against a woman, there is his offending in the realm of dishonesty/fraud arising from the possess identity convictions and there are the three convictions for drink driving. Each of those modalities of offending could result in the occasioning of harm to individuals or the Australian community in the event such conduct was re-committed. It is not difficult to apprehend the nature of physical and psychological injury that would befall another female victim of the Applicant’s domestically violent offending. Likewise, further, little imagination is required to apprehend the quantifiable and material loss that would be suffered by individual victims and/ financial institutions impacted by repeated dishonest and fraudulent-type conduct. We are all too familiar with reminders we receive on a daily basis on virtually every media platform about the significant dangers arising from drink driving. Those media campaigns predominately refer to the very serious and quite realistically catastrophic consequences arising from the extent to which alcohol impairs a driver’s capacity to manage and control a motor vehicle.

23. It can therefore be safely and soundly found that were this Applicant to engage in further criminal or serious conduct of the type he has previously perpetrated, there is a quite realistic likelihood that physical, psychological, materially quantifiable and, quite conceivably, catastrophic and/ or fatal harm would befall both individual victims and the Australian community. I so find.

    The likelihood of the non-citizen engaging in further criminal or other serious conduct

24. I will preface my findings about the Applicant’s recidivist risk with an initial observation about the anomalous state of one particular aspect of the evidence. The anomaly derives from conflict and tension about the nature and extent of the Applicant’s conduct in the circumstances of the domestic relationship he shared with Ms Kimberly Lane in or about mid-late 2014. The basis of the anomaly is to be found in the conflict between (1) material prepared by the Department of Family and Community Services (‘DFCS’) when making application to the Children’s Court to support a determination that the two children of the relationship[34] (Child LK and Child IK) were children in need of care and protection; and (2) the evidence of the Applicant, but more particularly, that of Ms Lane, about the Applicant’s conduct during their relationship.

    [34] That is, the relationship between the Applicant and Ms Lane.

25. The reason this anomaly becomes relevant for recidivist risk purposes is that it may go to (1) an assessment of the risk of the Applicant re-committing violent conduct in a domestic or family scenario and (2) the credibility of the Applicant’s evidence more generally. In short order, the evidence of the Applicant and Ms Lane is that virtually none of the Applicant’s domestically violent conduct alleged in the DFCS documents, prepared in support of an application for care and protection orders for the subject children, ever occurred. According to the Applicant and Ms Lane, the DFCS material that records his conduct should now be impugned because the DFCS acted alone in the preparation of this material. Little or no explanation is provided for why a Court of competent jurisdiction found the alleged conduct described in the DFCS material credible enough to make orders removing the two children from the care of the Applicant and Ms Lane on 13 August 2015.[35]

    [35] Exhibit R4, pp 18-19.

26. In terms of witnesses whose evidence should be reviewed on the question of recidivist risk, there is before the Tribunal the written and oral evidence of the Applicant, the written and oral evidence of Ms Kimberly Lane, the written and oral evidence of the clinical psychologist, Mr Sava Tsolis, the written and oral evidence of Mr Raveendran (KARI caseworker) and the written evidence of the prospective employer, Mr Rishi Singh. I will review the evidence of each of these witnesses in turn.

    The evidence of the Applicant

27. There are two written statements from the Applicant before the Tribunal. The first of them is what seems to be a letter of explanation tendered in support of his application for a partner visa in May 2017. The statement is not dated but is nevertheless signed by the Applicant. [36] In this statement, the Applicant makes a pledge to himself ‘… to be a better person’. [37] He says that when he came to Australia ‘…I did not have the ability to differentiate between wrong and right and I did not have no one to show me the right way either. I wanted to make money to have a better life but I chose the wrong path’.[38]

    [36] Exhibit R1, p 73.

    [37] Ibid.

    [38] Ibid.

28. He says that ‘everyone makes mistakes but it all comes down to learning from them and come back stronger, thats what makes a better person. I have learnt from my mistakes and came to realise that a wrong way might seem all fancy and attractive but its short and there is dark on the other end’.[39] Despite what the Applicant may have said in this statement, he did subsequently commit further offending in the form of two mid-range drink driving offences and one low-range drink driving offence.

    [39] Exhibit R1, p 73.

1. The second of the Applicant’s written statements also appears in the material. It bears what appears to be his signature and is dated 3 August 2023.[40] In this statement, the Applicant says, ‘I reflect on my assault charges, my possess false identification information which led me to serve 6 months non parole of a 15 month sentence in 2013 and my drink driving offences and I am very sorry and remorseful for my criminal conduct’. [41] In terms of empathy for the victims of his offending, the Applicant says ‘I feel for the victims of my actions including my ex-girlfriend who I slapped in 2011 and she did not deserve that and I plead guilty to that offence. I regret and apologise for the harms I have caused’.[42]

   [40] Exhibit A1.

   [41] Ibid, p 1, [6].

   [42] Ibid, [7]-[8]].

2. In terms of rehabilitation, the Applicant says ‘I have completed courses in detention on parenting, drug and alcohol abuse, anger management, addictions and depression’.[43] He explains his offending conduct on the basis that ‘I really was drinking badly and putting people at risk as my drink driving convictions show. I was in a very mentally [sic] bad state at the time, I was trying to work and support my two children, Child LK and Child IK and had a de facto partner who was in active drug addiction using Ice and Heroin. [44]

   [43] Ibid, [10].

   [44] Ibid, pp 1-2, [11].

3. In terms of the future, the Applicant refers to the nature and extent of the time he gets to spend with his two minor children which is facilitated via the KARI organisation. He makes monetary and other material contributions to both his children and Ms Lane. If retuned to the community, he says ‘I will be a positive member of society and get a job which has been offered to me. I will never drink and alcohol and have been abstinent since 2018’. [45] He adds that he has ‘… been provided a place to stay with my relative Paramjeet Singh at his unit [address redacted] Macquarie Fields NSW’.[46]

   [45] Ibid, [23]-24].

   [46] Exhibit A1, p 3, [30].

4. The Applicant concludes this second statement with these words: ‘I am ready to be a positive member of society and help rebuild my life, be financially responsible and support my kids and rebuild relationships’. [47]

   [47] Ibid, [31].

5. During his oral evidence the Applicant was taken to [10] of his statement made on 3 August 2023 wherein his refers to his completion of certain rehabilitative course during his time in immigration detention. He provided the following detail about the courses he has completed and also spoke more generally about the extent to which those courses have influenced his life and, in particular, any predisposition he may have towards committing further offences:

   ‘APPLICANT: ---I have done the programs regarding the drug and alcohol, anger management, basic parenting, tuning in to the kids. Some of the programs is not in my records but luckily I’m connected with the Uniting Care from last couple of years. So, (indistinct words) from them because they’re very helpful especially to work to the single fathers how to manage the kids behaviour when they grow, how to be around them, how to listen to them, how to show the affection. I can’t tell you how much this course help me out and help me out to learning new things which I was not even aware. So, it’s ultimately the (indistinct) and for the (indistinct) detention centre especially provided the program which was called SMART Recovery. And I start doing that for COVID and I really enjoyed the program, and that programs give me like goals to make every day here in my life, like getting up early in the morning to – okay, controlling yourself, controlling yourself not even go down feeling remorse and living healthy, eating healthy, contributing the programs, talking to your family, being positive. Okay, your kids is growing, looking forward to the what you can do to create more bond with them. So, this all programs I have been (indistinct) on the programs, not in the documents because I could not get the certificate because Uniting Care, which when I was included with the person (indistinct) and he quite the job unfortunately and they didn’t have nothing with (indistinct). But I’m still connected with the Uniting Care, Mr Leroy, he call me time to time, still I’m doing the program. So, my (indistinct words) and it’s provided by the Federal Government which is a very good helpful program and it’s taught me a lot. When I came here I’m going to say I came as a 30 years old (indistinct), and having two kids and I was lost. But when I start doing the programs here and I see my life, (indistinct) look back, somehow every day I learn something and I feel very confident but same time I feel sad making the mistake in my life, which I have (indistinct), and growing out of them and I just look forward the day when I can just hug my boys in the freedom, and do things with them.’[48]

   [My emphasis]

   [48] Transcript, p 16, lines 21-47; p 17, lines 1 – 3.

6. The Applicant was asked about the consultation he had with the clinical psychologist, Mr Sava Tsolis. He seemed to understand the importance of some measure of clinical intervention and involvement with this type of clinician as a means of keeping his life on the straight and narrow and also in terms of controlling any risk of him returning to a pattern of substance abuse which has previously been at the core of his offending conduct.

   ‘But with a psychologist say he help me out and with my drug use, all the my alcohol use, I have quitted. I’m done with that. I just a normal cigarette smoker. I don’t do nothing else, and (indistinct) working on quitting the cigarettes as well, tobacco, and I delighted that I knew to work out with a psychologist even though I’m in the (indistinct) and (indistinct) myself fully and be confident to gain that – my family back and future – may the future’s (indistinct). So, yes.’[49]

   [My emphasis]

   [49] Transcript, p 17, lines 13-19.

7. Further in his oral evidence in-chief, the Applicant confirmed that if returned to the community, he would reside with his cousin, Mr Paramjeet Singh. He said:

   ‘I don’t have many friends or family in here, Australia. I have only few which support me doing my hard time, [sic] and in a way in Australia I have my world, which is my two boys… I’m going to stay with Mr Paramjeet Singh. He’s happy to reside me. He’s happy to support me… as a financial situation… a rental assistance or the grocery or the fares’. [50]

   [50] Ibid, p 17, lines 23-28.

8. In his cross-examination, the Applicant was taken to 2010 and, specifically, to the point in time on which his then student visa expired causing him to be in this country as an illegal non-citizen. He explained that he tried to obtain a new visa via migration agents but was not successful in doing so. He was then asked why he did not voluntarily return to India and he responded with the following:

   ‘MS SAUNDERS: So, why did you not return to India?

   APPLICANT---I could not because I come looking for the better life here, and (indistinct) I found it. That day I landed in Australia, soon after I feel like it is my home and I don’t want to leave Australia, never, not even now. It’s always feel like to me motherland to me. I know I born in India. I grew up nearly 18, 20 years I lived in India I know that town very very well. But Australia is like mum to me as well. Taught me everything single thing. I learn every single thing here. Basically all – from India when I left I was a kid but I’ve grown and bred here in Australia.’[51]

   [51] Ibid, p 21, lines 5–12.

9. The Applicant confirmed he knew at that time that he was in Australia on an illegal basis. [52] Be that as it may, he maintains that he nevertheless had a plan to remain in Australia on a lawful basis which he described thus:

   ‘MS SAUNDERS: So, what was your plan? Were you just going to stay in Australia unlawfully?

   APPLICANT: ---That was not my plan. (Indistinct words) here. My plan was always to hold (indistinct) legally work to in Australia and get residential visa and always have the work rights, and that way I’m always get the good benefit from the government and government look after me too. So, I always wanted to do that, but somehow it didn’t work it out, I guess.’[53]

   [52] Transcript, p 21, lines 14–17.

   [53] Ibid, p 21, lines 19–25.

10. The Applicant told the Hearing that his earlier offending is attributable to negative peer groups with whom he started associating during his work as a sales manager at a local car wash during the period February 2011 until November 2012:

    ‘MS SAUNDERS: So, why did you stop working at the cash wash in November 2012?

    APPLICANT: ---As I told you I was included with the not right crowd. So, I was in struggling of the finding some help and I start doing some wrong activities and I end up in a gaol.

    MS SAUNDERS: Yes. I understand what you’re saying, you went to gaol, but you went to gaol several months after you said that you stopped working here. So, are you saying that you stopped working because you started hanging out with the wrong crowd instead?

    APPLICANT: ---Yes.

    MS SAUNDERS: Okay?

    APPLICANT: ---That’s the reason, and I was using alcohol, cigarettes, sometime in (indistinct). Yes.

    MS SAUNDERS: And I understand that it was around this time that you committed your first offence, which was the common assault offence, being in October 2011. Is that right?

    APPLICANT: ---Yes.’[54]

    [54] Ibid, p 22, lines 21-36.

11. He readily accepted that during this early phase of his offending history, he did have a problem with alcohol even though he may have not realised it at that time. [55]

    [55] Ibid, p 23, lines 16.

12. He was then taken to his relationship Ms Lane which he confirmed commenced in 2012.[56] He further confirmed that he currently remained in a relationship with her.[57] He was challenged about this evidence. In particular, he was asked to explain why the material contains references to her being his ex-partner. The following exchange transpired between the Applicant and the Respondent’s representative:

    [56] Transcript, p 26, line 9.

    [57] Ibid, p 26, line 11-13.

    ‘MS SAUNDERS: Certainly. There is evidence before the tribunal that refers to Ms Lane being your ex-partner. Can you explain why that is?

    INTERPRETER: I don’t know about the ex-partner bit, but I am in the detention for the last four years and she has been in the – she has been in the gaol before that. It will only be once I come out in the community, and once she comes out in the community, that the relationship can go further. So, I am not sure what our relationship at the moment is.

    MS SAUNDERS: So, is it your understanding that at the moment you are in a relationship or you’re not sure?

    INTERPRETER: I will be in a – the relationship with Kimberley will never end. It will always be for life because she’s the mother of my two children. I call her regularly. We talk regularly. She calls me from the gaol. I support her financially. I share my personal problems with her and to make a relationship grow in future we will have to be out in the community.

    MS SAUNDERS: Okay. So, at the moment your understanding is that you and Ms Lane are currently in a de facto relationship?

    INTERPRETER: (Indistinct.)

    SENIOR MEMBER: Ms Interpreter, was that answer yes? Your voice just faded. 

    INTERPRETER: Yes.

    SENIOR MEMBER: Yes.

    INTERPRETER: Yes.

    SENIOR MEMBER: Thank you.’[58]

    [58] Ibid, p 26, lines 28-47; p 27, lines 1-13.

13. The Applicant was then cross-examined about the issue of domestic violence in the relationship between him and Ms Lane. He spoke of difficulties in the relationship principally resulting from her illicit drug abuse. He explained those difficulties in these terms:

    ‘My partner used to use a drug – used to use drugs a lot and the children had been born by then, and they were getting affected. And I had wanted that we should manage our family well, we should look after our children well, provide for them, have a safe environment for them. But due to her drug addiction I was being mentally tortured a lot. I used to go to work and get in the finances to pay rent and for groceries, but then later on I used to go to work and get in the finances to pay rent and for groceries, but then later on I used to realise that the rent was never paid, and then we would get into trouble that we were running behind in rent, and that also was a financial abuse for me and - after that, when I was at home, after my boys were taken to foster care, my personal things would go missing, and when I would realise that, I was never violent towards her, but I was being mentally tortured. That’s all.’[59]

    [59] Transcript, p 27, lines 34-46.

14. He was challenged about why he would remain in a relationship with Ms Lane if she made him fearful for his safety and his initial response was ‘she’s the mum of my kid [sic]’[60] He was pressed about why he would stay in any relationship with Ms Lane in circumstances where she made him fearful for his safety, she abused illicit drugs and her drug use impacted the entire family unit. He appeared to walk back his evidence about the currency of the relationship when he said this:

    ‘I don’t know about the relationship, but I want to come out of here and be in the community and be a support for my children and look after them, and yes, if she wants to change her life and she wants support from me, I will support her’.[61]

    [My emphasis]

    [60] Ibid, p 28, lines 19 -20.

    [61] Ibid, lines 28-31.

15. The Applicant’s evidence about the relationship then appeared to devolve into a position of them being both out of the community in separate detention facilities, she in prison and he in immigration detention. His evidence then became uncertain in terms of what the future may hold for the relationship:

    ‘Look, I’m not changing my statement. Whatever I had said earlier and whatever I’m saying now is the same. Do you know for how long she has been in the jail? Because I don’t. She has been in and out, in and out, for so long that I haven’t been able to keep track, and our relationship has been going on like this, and because I’m in the detention centre and she’s in jail, we keep - you know, we keep communicating over the phone; we are talking, and sometimes if she needs money, I give her the money, but other than that, I don’t know how the relationship is going to shape in the future. Nobody can answer that.’[62]
    

    [62] Ibid, p 28, lines 39-47.

    [My emphasis]

16. The questioning about domestic violence was then re-configured away from such conduct he asserts she allegedly perpetrated on him and moved towards evidence in the material about such conduct he allegedly perpetrated on her. He was directly asked whether he had ever committed family violence against Ms lane and he responded with: ‘I cannot answer that question because if you were to ask this question Ms Lane, she probably be able to give you a better answer’.[63]

    [63] Transcript, p 29, lines 7 -9.

17. The Applicant’s evidence on this specific issue then evolved into an outright denial of him ever committing family violence against Ms Lane.[64] He was then taken to the abovementioned documents prepared by DFCS and, in particular, to page 13 of those documents[65] which contain the following references to the Applicant’s commission of family violence against Ms Lane and one child of the relationship, Child LK:

    ‘…Ms Lane stated that Mr Kumar has on one occasion harmed her prior to moving into her [suburb redacted] residence. Ms Lane stated that Mr Kumar has punched her to the face due to Ms Lane asking Mr Kumar to keep the noise down one night whilst he had friends over’[66];

    ‘On 7 December 2014, Community services received a further report in relation to domestic violence. It was reported that Ms Lane disclosed that Mr Kumar slapped Child LK to the face and hit Ms Lane;’[67]

    ‘Mr Kumar was questioned in relation to the event that occurred last night [8 August 2014]. Mr Kumar stated that Child LK was playing with his phone and Child LK has thrown his phone which has hit Mr Kumar in the face. Mr Kumar stated he reacted and slapped Child LK to the face, indicating the slap was not hard. Mr Kumar stated Ms Lane has seen this “went off”, Mr Kumar stated he has then stated Ms Lane to the face’;.[68]

    ‘On 19 December 2014, Caseworker… conducted a joint home visit to Ms Lane and Mr Kumar’s residence… the purpose of this home visit was to raise concerns surrounding domestic violence between Ms Lane and Mr Kumar. Mr Kumar stated “that it was nothing, just a normal argument”. [Caseworker] informed Mr Kumar that calling Ms Lane a “fat slut” with Child LK present was not appropriate’; [69]

    ‘At this home visit [i.e 19 December 2014] Mr Kumar was asked about his understanding of domestic violence. Mr Kumar denied this incident to be domestic violence. [Caseworker] explained to Mr Kumar that should Community Services receive further reports or information relating to domestic violence, Community Services would deem it unsafe for Child LK to remain in the home and Mr Kumar would be asked to leave. Mr Kumar agreed to attend domestic violence counselling through Baptist Care Services. [70]

    [64] Ibid, p 29, lines 19-27.

    [65] Exhibit R4, p 13-14.

    [66] Ibid, p 14, second dot point down.

    [67] Ibid, [35].

    [68] Ibid, p 13, [36].

    [69] Ibid, [38].

    [70] Ibid, pp 13-14, [39].

18. These reported episodes of domestically violent conduct were squarely put to the Applicant in cross-examination, and he responded with: ‘I would like you to put this question to Ms Lane, because she would be able to justify this properly’.[71] The Applicant was pressed about whether he had anything to say about these reported instances of him committing domestically violent conduct. He maintained a position of ‘I have never touched her’.[72] Further in his cross-examination when pressed about the above-quoted alleged examples of his domestically violent conduct, the Applicant maintained a position of ‘I will leave all these questions for Ms Lane who will answer them better’. [73] Ultimately, the Applicant adopted a position of refusing to say anything further in response to this line of questioning:

    ‘…I have nothing to say because due to her drug abuse, she used to lie, she wouldn’t come home, and she would tell lies about it. So, I really have nothing to say about it, it’s all up to her to answer all these questions.[74]

    [71] Transcript, p 39, lines 42-43.

    [72] Ibid, p 30, lines 4 and 8.

    [73] Ibid, p 34, lines 12-13.

    [74] Ibid, lines 23-26.

19. The Applicant was then taken to the last above-quoted portion from the relevant page of the DFCS documents and, in particular, the reference to his agreement to attend domestic violence counselling. He was asked whether he recalls the Caseworkers from DFCS telling him to attend domestic violence counselling. He said that he did not clearly recall this conversation but did recall attending some domestic violence counselling: ‘I attended it but didn’t complete it’.[75]

    [75] Ibid, p 35, line 28.

20. The questions in cross-examination then moved towards his five convictions for possess identity offending. According to his evidence, the Applicant attributes his offending to a financial requirement to provide for his growing family and because he had fallen in with the wrong crowd:

    ‘MS SAUNDERS: So I understand that in the following year, you were convicted of five offences of possess identity. Can you explain to the tribunal what led to this offending?

    INTERPRETER: Because of my financial needs I was with the wrong crowd.

    MS SAUNDERS: So can you explain what that means? What does it mean, because of your financial needs? How did that lead to your offending?

    INTERPRETER: My partner, Kimberley was pregnant at that time. We needed money. She was about to have a baby. I did not even have a visa and because of the company I was in, the circle I was in, I did what I did.

    MS SAUNDERS: Are you able to explain, because I don’t think I understand from the evidence, how it was that you were making money through this offending?

    INTERPRETER: I would get a call or a message saying there was stuff at one place which has to be picked you and it has to be dropped at a certain place and that I would get money for that.’[76]

    [My emphasis]

    [76] Transcript p 38, lines 25-46.

1. The Applicant was then asked about his three convictions for drink driving. He was asked to explain what led to this offending. He said ‘…it was mainly through shame and stress that how will I tell my parents that my children were in foster care. As it is, with the partner, things were not going the best and I would come home and get stressed and get into this’.[77] He agreed that it was his problems with alcohol that led to his drink drinking convictions: ‘… because I was thinking that the solution is drinking, but drinking actually created more problems for me’.[78] The Applicant otherwise confirmed that he has not consumed alcohol since 2018.[79]

   [77] Ibid, p 42, lines 17-20.

   [78] Ibid, p 42, lines 25-27.

   [79] Ibid, p 42, Lines 29-30.

2. The Applicant was then asked about his consumption of other substances and he confirmed that he is a regular smoker of tobacco and that ‘maybe once or twice’[80] he has taken marijuana in immigration detention. This evidence was somewhat at odds with what appeared in the IHMS[81] material to which the Applicant was taken. On page 47 of the IHMS documents, there is reference to the Applicant ‘Smokes 2-3 cigarettes a day, Smokes Marijuana on and off. [82] On page 82 of those IHMS documents, there is reference to the Applicant ‘Smokes THC[83] daily in VIDC aprox 5g/week… uses marijuana to calm down.[84] The Applicant responded with: ‘I’m not a regular smoker of marijuana. I will not deny that, yes, I have had it when I was stress [sic], but this 5 grams a week, I think there has been some misunderstanding because I am not a regular smoker of marijuana’.[85]

   [80] Ibid, p 42, line 37.

   [81] International Health and Medical Services.

   [82] Exhibit R3, p 47.

   [83] Tetrahydrocannabinol – the major psychoactive component and one of the 113 cannabinoids recognised in cannabis.

   [84] Exhibit R3, p 82.

   [85] Transcript, p 43, lines 28-31

3. Ultimately, the Applicant did not accept that this evidence indicated he had ongoing issues with drug taking. He maintained this position on illicit drugs: ‘I would not say that it’s an addiction… But yes, I have admitted that I’ve had it in the past, but I will not say that it’s a problem. [86] The Applicant’s position on illicit drug use eventually devolved to this:

   ‘MS SAUNDERS: Why should the tribunal believe that you would not continue to take drugs if you were released into the community?

   INTERPRETER: Because drugs has damaged my family, it has harmed my family, my partner. Everything has been ruined because of drugs. So drugs is not even on my list anymore.

   MS SAUNDERS: Well, Mr Kumar, you were still smoking marijuana up until as recently as June 2023, so why would the tribunal believe that?

   INTERPRETER: I’m not asking the tribunal to believe me, but - or to trust me, sorry - but I will say that I have taken marijuana to destress myself, but I promise the tribunal that I will not be going into any drugs, I’m not addicted to any drugs. When I go out, I want to do counselling, and there are some support programs that are available, which I would like to do. When I go out, I want a better life for myself and my children. I’ve already included with two of them, Uniting Care, and the Prisoners’ Aid program, so I’m already doing that with them.’[87]

   [86] Ibid, lines 36; 38-39.

   [87] Ibid, p 43, lines 44-45; p 44, lines 1-15.

   The evidence of Ms Kimberly Lane

4. Ms Lane provided both written and oral evidence to the instant Hearing. Her two written statements appear in the material. The first is a hand-written statement that appears to have been prepared for the Applicant’s application for a partner visa in May 2017. In this statement, Ms Lane says:

   ‘I am the partner of [the Applicant]. I am writing to you because you have asked for some more documentation. Regarding our spouse Visa application. [The Applicant] is a hardworking man and is supporting my children and myself. He thrives on employment and providing & caring for his family and himself. I first met him through a friend and we connected straight away it has now been three and a half years and the hole [sic] 3 and a half years has been a highlight of my life he is always caring and kind, and has always provided for himself and also myself and his family… he is a great dad, partner, person I have ever met in my life. He has made me the changed & new person I have become for the best’. [88]

   [My emphasis]

   [88] Exhibit R1, p 74.

5. Her second statement dated 3 August 2023 appears in the material. [89] She is a 29-year-old First Nations woman from Campbelltown, New South Wales. She is currently serving a term of imprisonment at the Silverwater Correctional Centre. She recounts that she and the Applicant ‘… became de-facto partners in 2012. We lived together for a number of years and even registered our relationship in 2015 with the NSW Births Deaths and Marriages’. [90] She says that ‘I have struggled with drug addiction Ice, heroin and [the Applicant] has being [sic] the one positive influence in my life.[91] She says the Applicant ‘…showed me love and devotion something I was deeply missing in my life.[92]

   [89] A7.

   [90] Ibid, p 1.

   [91] Ibid.

   [92] Ibid.

6. She is quite mindful of the toll her addiction to illicit drugs has taken on the family unit. She is ‘… very sorry for the harm my addiction has caused him and our two children. My struggle with drug addiction and the stress of living with me has no doubt caused [the Applicant] to suffer mentally and emotionally.[93] She makes reference to their two children, Child LK (aged 10 years) and Child IK (aged eight years) in respect of whom she notes the Applicant ‘… was a great father he always supported me, feeding the babies, changing nappies and providing financially for them from his work including at the carwash.[94] She refers to the removal of the children from their care and attributes this to (1) ‘The child welfare authorities interviewed me with my drug use and I failed a drug test’[95]; and (2)’ [the Applicant] because of his visa, no finance and he also had the drinking offences this time was unable to salvage the situation’.[96]

   [93] Ibid.

   [94] Ibid.

   [95] Ibid, p 2.

   [96] Ibid.

7. She attributes her descent into illicit drugs to her father’s abandonment of their family unit when Ms Lane was a child. This abandonment, says Ms Lane, has ‘… led me down to drug addiction, stealing and imprisonment’. [97]  She does not want the same for her children. She is aware of the Applicant’s offending history but nevertheless confirms ‘… he always loved and cared for our kids and they love and care for him’.[98] While the Applicant has been in immigration detention, she ‘… always speak [sic] to him on the phone…’. [99] She wants the Applicant to remain in Australia because ‘… I do not want our children to be deprived any further of a meaningful relationship with both parents’. [100] She believes the Applicant when he tells her he has not consumed alcohol since 2018. She regards the Applicant as a ’changed person’. [101] She concludes her statement with these words: ‘I know he will never reoffend and his time in detention so far since December 2018 to date is a reminder for him what will happen if he reoffends’.[102]

   [97] Ibid.

   [98] A7, p1.

   [99] Ibid.

   [100] A7, p 2.

   [101] Ibid.

   [102] Ibid, p 3.

8. Ms Lane also gave oral evidence to the instant Hearing. During her evidence in-chief, she said she has an important forthcoming court date on 5 November of this year. She is presently on remand awaiting the outcome of the abovementioned court date. She confirmed that the contents of her abovementioned two statements[103] were true and correct.

   [103] Exhibit R1, p 74; see A7.

9. She was taken to the period from about 2013 when the first child, Child LK, was born until December 2018 when the Applicant was taken into immigration detention. In particular, she was asked about her observations of the Applicant’s role in the lives of their two minor children. She said:

   ‘MR EHIMUDIAMEN: How would you describe him as a father?

   MS LANE:---He’s the best father. Like he loved the kids so much, like he does anything for them. Like he provides them financial, the way he interacts with the children and the children absolutely love and adore him. You know, and he does the same, you know. Back then he (indistinct).’[104]

   [104] Transcript, p 76, lines 20-23.

10. Ms Lane was then asked to describe how she would feel if the Applicant were removed from Australia consequent upon an adverse outcome in this application. She said, ‘That would destroy me’.[105] On the question of the Applicant’s possible removal she was asked about her fears for her children in that event. She responded with this:

    ‘---The fear that I have for my children is that they wont have a father in their life. They won’t have their father role model; you know. And like, my kids need their father. And if he’s deported, there’s like what kind of relationship will they have with him? They won’t have a relationship, at all.’[106]

    [105] Ibid, lines 25-26.

    [106] Transcript, lines 38-42.

11. Ms Lane was also cross-examined. She confirmed that she and the Applicant commenced their relationship in 2012 and that they are still in a relationship.[107] She described the nature of their relationship in these terms:

    ‘MS SAUNDERS: And can you describe to the tribunal the nature of your relationship, for example, what support you provide each other?

    MS LANE: ---Well, he has actually been my rock (indistinct) like, when I was going (indistinct) and he like actually - oh they just opened the cell door. Thank you. Yes, sorry. Me and like he, he gave me like the best opportunity like that I’ve ever had, you know. And we have the best relationship, caring, he’s hard-working, he provides, he’s loving, like, yes. We have the best relationship you know. And I - because growing up I’ve never had that love as a child, in my childhood or in my life ever, that he gives me. And it was (indistinct) I love it.’[108]

    [107] Ibid, p 77 lines 18-21.

    [108] Ibid, p 77, lines 23-31.

12. Ms Lane confirmed that both of their children were removed from their care by the child safety authorities in August 2015. [109] She was specifically asked why the children were removed from her care and that of the Applicant and this is what she said:

    ‘MS SAUNDERS: And can you explain why they were taken out of the care of you and Mr Kumar?

    MS LANE: ---They were taken out of the care of us because I was using drugs. It’s like, with two little boys like at home with the kids and because of my father, he had just come into my life and I felt obligated to help him all the time. (indistinct) weren’t always right and I would go out and leave the kids at home (indistinct) while I went out to use drugs. And because of that reason, they took my children away because I was using drugs. Not because of him. He done nothing wrong but he (indistinct) It was me. I failed the drug test. It was me.’[110]

    [My emphasis]

    [109] Ibid, p 77, lines 36-37.

    [110] Ibid p 77, lines 39-47.

13. She was challenged about this evidence. She was told about the application initiated by the DFCS in relation to the children and, in particular, where those application documents say that the children were removed from her and the Applicant due to, amongst other things, domestic violence issues between her and the Applicant. She responded with this:

    ‘---No. No. That was (indistinct) and (indistinct) because there was no domestic violence ever. He never ever ever touched us, not once. Not one day at all. And that (indistinct words) never even said that to us when they took our children and we went into the office, they never even said that to us. They said that they took our kids because of my drug use. He never ever ever, laid a hand on me. He has been nothing but loving and caring like he, you know, like yes, like any like I don’t know why they’re saying that. It’s obviously all false, like not true.’[111]

    [My emphasis]

    [111] Transcript, 78, lines 8-14.

14. And further:

    ‘MS SAUNDERS: So there is evidence before the tribunal that suggests that Mr Kumar was physically violent towards you during your relationship, so I understand your evidence just now to be that that’s incorrect?

    MS LANE: ---Yes, that’s incorrect. He never ever laid one hand on me. And I don’t know why that you’re saying that there’s evidence in there because he has never done anything to me.

    MS SAUNDERS: Okay. And there is also evidence before the tribunal which suggests that Mr Kumar had admitted to hitting both you and [Child L]. Is there anything you wish to say about that?

    MS LANE:---No, he never hit any of us. He never touched any of us, he wouldn’t do it. That really annoys me, like its hard for me, because he’s not that type of person.

    MS SAUNDERS: Okay.’[112]

    [My emphasis]

    [112] Ibid, lines 16-28.

15. In terms of her post-release plans, she spoke of re-connecting with the Applicant ‘…eventually get our children back…and to be a family…. That’s my plan. That’s my long-term goal. [113] Finally, she confirmed that she has had discussions with the Applicant about going back to live with him when she is returned to the community. [114]

    [113] Ibid, lines 31-35.

    [114] Ibid, p 78, lines 39-40.

    The evidence of Mr Rarish Raveendran

16. Mr Raveendran is a caseworker with KARI. He has provided oral and written evidence to this Hearing. He was taken to his two written statements that appear in the material respectively dated 7 February 2023 and 23 August 2023. He adopted them as his statements. [115]Mr Raveendran facilitates case management support for Child LK and Child IK. Since July 2022 he has been working with the Children’s carers (Ms CL and Mr SL) together with the natural parents of the children (Ms Lane and the Applicant). Mr Raveendran has arranged for both children to have ongoing family time visits with the Applicant since their removal from his and Ms Lane’s care. This has involved the children having supervised visitation time with the Applicant while he has been in immigration detention.

    [115] Transcript, p 66, line 21.

17. Those visitations seemed to have had a positive effect on the children. Mr Raveendran says:

    ‘I have supervised monthly family time visits between [the Applicant] and his children and have observed the children to have a positive relationship with [the Applicant], During family time I have observed the children to run towards [the Applicant] giving him cuddles saying "Hello Daddy" with a smile on there face, The children after family time speak to myself about what they enjoy during visit and ask when their next family time is.’[116]

    [116] A10.

18. Mr Raveendran confirms that KARI supports these family time visits by the children with the Applicant and he says there is an ‘… intention to increase…’[117] the frequency of those visits if the Applicant is allowed to stay in Australia. In his more recent letter, Mr Raveendran speaks of in-person visitations by the children upon the Applicant in March and July of this year. In view of the positive outcomes resulting from those visitations, a ‘…more rigid Family Time Schedule will be discussed and implemented to continue supporting [the Applicant] and his children’s connection as this will be in their best interest, pending on the residency status which will allow him to remain in Australia’.[118]

    [117] Ibid.

    [118] A1.

19. During his oral evidence in-chief, Mr Raveendran confirmed that since the time of his involvement in this case (July 2022), he is not aware of the children having been taken for a visit with their mother. [119] During cross-examination, Mr Raveendran was taken to the statement in his earlier letter which spoke of KARI’s intention to increase the Applicant’s face-to-face time with the children. The following transpired between him and the Applicant’s representative during the Hearing:

    ‘MS SAUNDERS: I might just break this down a bit further. I just want to understand in particular where you say, ‘with the intention to increase.’ So, what’s the intention and what’s increasing?

    MR RAVEENDRAN: ---So what my intention is, like, if he is supposed to - if he is allowed to continue to stay here, now the monthly visit will become like fortnightly visit, and to build that connection and this relationship it will be increased to probably weekly, and we will look at - I mean the long-term plan is, like, (indistinct) of the boys, different from their relationship with their natural dad. We will do some assessments, and if it continues, yes, we will look at (indistinct).

    MS SAUNDERS: And so, is it correct to say that KARI would be supportive of Mr Kumar having increased time with his children if he was able to remain in Australia?

    MR RAVEENDRAN: ---Yes.’[120]

    [119] Transcript, p 67, lines 39-40.

    [120] Transcript, p 69, lines 8-20.

20. Mr Raveendran confirmed that he was aware of the DFCS documents which speak of the children’s removal being apparently due to the Applicant subjecting Ms Lane and Child LK to family violence and because of family violence directly between Ms Lane and the Applicant. He was asked whether this would have any impact on KARI’s support of the Applicant having increased time with his children. He said the following:

    ‘MS SAUNDERS: And does this have any impact on your support of Mr Kumar having increased time with his children?

    MR RAVEENDRAN: ---Yes, and that is why this is a supervised visit, and I am personally involved in all these visits, assessing how their relationship is. When there’s any concerns I raise it with their natural father, and I continuously ask the boys, like, how are they feeling and if there’s any concerns they have, because for me the welfare of the boys is very important. So we are continuously doing ongoing risk assessment. So if any concerns arise, we definitely address that, yes.’[121]

    [My emphasis]

    [121] Ibid, p 69, lines 36-42.

21. During all of the time Mr Raveendran has been involved in this case, no risk or other concerns have arisen.[122] He was also asked about what he knew of the state of the relationship between the Applicant and Ms Lane. Ultimately, the state of that relationship seemed to be (in Mr Raveendran’s mind) a secondary matter with his primary focus being the building of a relationship between the children and the Applicant:

    ‘MS SAUNDERS: Is it your understanding they’re no longer in a relationship?

    MR RAVEENDRAN: ---Yes, in my understanding they are no longer in a relationship, but I am not sure if they are in contact. Yes. My focus has been to build a relationship between the kids and Mr Kumar.

    MS SAUNDERS: So what’s that understanding based on?

    MR RAVEENDRAN: ---That I believe they both are not in contact, that’s what I believe. Yes. And that’s the information I have received from Mr Kumar, but I not delved too much into that because my focus has been first managing the (indistinct) of the boys. Because they also going through a lot in recent times, especially at the place, (indistinct) April 2022 when the (indistinct) they have lived for maybe more than five years. So my focus that we managing the behaviours. Yet at the same time,’[123]

    [My emphasis]

    [122] Ibid, p 69, line 45.

    [123] Transcript, p 70, lines 1-13

22. There followed three questions from me to Mr Raveendran. First, I asked him about the allied health supports facilitated by KARI for the children. Those supports involved speech therapy, occupational therapy and clinical psychological care. He said both children are under the care of a paediatrician for their ODD and ADHD.[124] He confirmed that KARI effectively arranges for the children to attend appointments with the relevant clinicians.[125]

    [124] ODD: Oppositional Defiant Disorder; ADHD: Attention Deficit Hyperactivity Disorder

    [125] Transcript, p 71, lines 26-46; p 72, lines 1-6.

23. Second, I was interested in Mr Raveendran’s evidence about providing ongoing risk assessment. He confirmed this assessment involved the gauging of any risk the Applicant presented to the children. Mr Raveendran confirmed that these risk assessments occur every six months. I asked him whether – in the course of conducting those risk assessments – he had noticed anything alarming or anything else that raised a ‘red flag’ for him. He confirmed that those risk assessments were unremarkable and that they produced nothing of concern.[126]

    [126] Ibid, p 72, lines 8-27.

1. The best interests of Child LK and IK, when analysed through the lens of the relevant sub-paragraphs of 8.4(4) of the Direction, lead me to a finding that this Primary Consideration 4 is of heavy weight in favour of this Tribunal not exercising its discretion to refuse to grant the subject Visa to the Applicant.

   PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

2. The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[202] The Direction further explains:

   ‘This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated [in paragraph 8.5(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.’[203]

   [202] Paragraph 8.5(3) of the Direction.

   [203] Paragraph 8.5(4) of the Direction. Paragraph 8.5(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.

3. Paragraph 8.5 of the Direction states:

   (1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

4. This Applicant has breached the Australian community’s expectations by his record of criminal offending in this country which is evidenced by repeated breaches of the Australian criminal law for which he was sentenced at five separate sentencing episodes. Therefore, the Australian community, ‘as a norm’ expects the Australian Government not to allow him to remain in Australia.

5. The Direction also states that visa cancellation or refusal, or non-revocation of a mandatory cancellation of a visa, 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 or continue to hold a visa. 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 the following kind:[204]

   (a)acts of family violence; or

   (b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

   (c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

   (d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

   (e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

   (f)worker exploitation.

   [204] Paragraph 8.5(2) of the Direction.

6. I have carefully looked at the nature and extent of the Applicant’s offending in this country. He has one conviction for a crime of violence against a woman which falls squarely within the auspices of paragraph 8.2(5)(c) of the Direction. Accordingly, it can be found that the nature of the character concerns raised by such unlawful conduct would mean that the Australian community would expect that the Applicant should not be granted a visa.

7. The remaining question is whether there are any factors which modify the Australian community’s expectations. This question is informed by the principles in paragraphs 5.2(4), (5) and (6) of the Direction. In summary these are:

   (a)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa; [205]

   (b)the Australian community has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;[206]

   (c)Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age;[207]

   (d)the community’s level of tolerance will rise based on the length of time a non-citizen has spent in this country and, in particular, whether their formative years were spent here;[208]

   (e)the nature of a 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 a visa outcome that is not adverse to the non-citizen;[209] and

   (f)if a non-citizen’s unlawful conduct is inherently of the type captured by any of the categories stipulated in paragraph 8.5(2)(a)-(f)(inclusive) of the Direction, then even strong countervailing considerations may not assist a non-citizen even where the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.[210]

   [205] Paragraph 5.2(4) of the Direction.

   [206] Ibid.

   [207] Paragraph 5.2(5) of the Direction.

   [208] Paragraph 5.2(5) of the Direction.

   [209] Paragraph 5.2(6) of the Direction.

   [210] Paragraph 5.2(6) of the Direction.

8. In relation to sub-paragraph (a) of the immediately preceding paragraph [197], the term ‘limited stay visa’ is not defined in the Act. The Applicant in this case applied for a Partner (Temporary) (Class UK) and Partner (Residence) (Class BS). If granted this Visa permits the visa holder to ‘travel’ to and ‘enter’ Australia within a specified period of time once it is granted.[211] It does not specify a period for which the visa holder can remain in Australia once it is granted. As the Visa permitted the Applicant to remain in Australia without any limit on the duration of his stay, the Visa held by the Applicant cannot be classified as a limited stay visa.[212] Therefore, this sub-paragraph (a) is not applicable to the Applicant.

   [211] Regulation 155.511 of the Migration Regulations 1994 (Cth).

   [212] Walker v Minister of Home Affairs [2020] FCA 909 at [29].

9. In relation to sub-paragraph (b) of the abovementioned paragraph [197], the Applicant has resided in Australia on a permanent basis from February 2008 when he was 20 years old. He is currently aged 35 years. He has a demonstrated work history in Australia. He is the father of two biological children in Australia born here in 2013 and 2015. Whatever participation in, and contribution to, the Australian community he may have made during his time here cannot be safely found to have been, ‘short’. Therefore, the Australian community’s tolerance is not necessarily lowered by this part of the principles in 5.2(4) of the Direction.

10. In relation to sub-paragraph (c) of the abovementioned paragraph [197], I repeat that the Applicant has resided in Australia from the age of 20. He is currently 35 years of age. He has resided in Australia on a permanent basis since February 2008. He has spent 38% of his life in this country. This means that the Australian community has a higher than usual tolerance of criminal or other serious conduct by this Applicant.

11. In relation to sub-paragraph (d) of the preceding paragraph [197] I am of the view that the length of time the Applicant has spent here facilitates a raising of the community’s level of tolerance for his offending. This finding is not augmented as a result of him not having spent his formative years in this country because he arrived here as a 20 year old.

12. In relation to sub-paragraph (e) of the abovementioned paragraph  [197] I am not of the view that the balancing exercise between (on the one hand) the harm that would be caused by the Applicant re-committing his ‘very serious’ offending for which he was sentenced at five separate sentencing episodes (on the other hand); and whatever countervailing considerations may work in his favour, is necessarily a principle referable to the community’s expectations for present purposes. This is because I am of the view that the totality of the Applicant’s offending for which he was sentenced at five separate sentencing episodes and the resulting harm from that conduct has been of a sufficient magnitude to dispel any applicable countervailing considerations.

13. In relation to sub-paragraph (f) of the abovementioned paragraph [197] I am of the view that the Applicant’s offending has been of a sufficient magnitude of seriousness that the Australian community would expect that the Australian Government can and should refuse this Applicant’s Visa. Given that finding, even strong countervailing considerations in his favour may not assist the Applicant. This is the case even in circumstances where, as I have found, he represents a low risk of re-offending. Therefore, my finding must be that the nature of his offending effectively precludes any countervailing considerations working in his favour even where he represents a low recidivist risk. 

    Conclusion of Primary Consideration 5: Expectations of the Australian community

14. The formula inherent in the language of this part of the Direction results in the allocation of weight to a normative expectation. This Applicant has been, inter alia, responsible for domestically violent conduct and conduct amounting to fraud. Domestically violent conduct, particularly towards women, is deplorable. But such conduct referrable to the Applicant was (1) convicted over a decade ago and (2) reported in DFCS material without ventilation of those issues before a decision-maker and without Ms Lane and/or the Applicant being represented. The Applicant did, at least, admit some of his domestically violent conduct to Mr Tsolis. The Applicant’s fraudulent conduct was dealt with by a sentencing court over a decade ago. Many Australian citizens have committed far worse fraud-derived offences and have resumed their lives in the Australian community.

15. Primary Consideration 5 confers a certain, but not determinative level of weight in favour of this Tribunal exercising its discretion pursuant to s 501(1) of the Act to refuse the Visa sought by the Applicant.

    OTHER CONSIDERATIONS

    Other Consideration (a): the legal consequences of this decision

16. In their respective written submissions, neither side propounded the application of this Other Consideration (a). During oral closing submissions, both sides agreed this Other Consideration was not relevant to the instant determination.[213] I agree with the respective positions of the parties and will allocate neutral weight to this Other Consideration (a).

    [213] Transcript, p 100, lines 8-12; p 107, lines 6-9.

    Other Consideration (b): extent of impediments if removed

17. This other consideration requires a decision-maker to consider the impediments a non-citizen is likely to face in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), if they are removed from Australia to their home country. In doing so, a decision-maker is required to take into account:

    ·the non-citizen’s age and health;

    ·whether there are substantial language or cultural barriers; and

    ·any social, medical and/or economic support available to them in that country.

18. Paragraph 9.2(1)(a): the Applicant is 35-years of age and can be safely found to be – at least in physical terms – in the prime of his life. In his PCF he is asked ‘Do you have diagnosed medical or psychological conditions?’ He replied ‘No’.[214] This PCF is dated 25 August 2017.[215] Since then, the Applicant has been the subject of a medico-legal examination and report by Mr Tsolis.[216] As mentioned earlier, in this report Mr Tsolis makes a diagnosis of ‘Major Depressive Disorder MADD, Severe Anxious Distress (DSM-296.23)’.[217]

    [214] Exhibit R1, p 166.

    [215] Ibid, p 152.

    [216] Exhibit A3.

    [217] Ibid, p 9, [3.2].

19. Further to that diagnosis, Mr Tsolis recommends that the Applicant ‘…undergo therapy for a period of 6 -12 months on a fortnightly basis’.[218] Mr Tsolis also identifies a Medicare-rebated scheme that would allow the Applicant to access up to 10 sessions of psychological intervention per calendar year. From the perspective of an impediment if removed, the question becomes whether the Applicant will be able to access the treatment for his diagnosed psychological symptoms to the same level and extent available to him in Australia? Guidance on this question can be found in a Country Information Report prepared by Commonwealth Department of Foreign Affairs and Trade (‘DFAT’). In terms of (1) cultural attitudes towards those experiencing adverse mental health symptoms and (2) the extent of services facilitating treatment for those symptoms, the DFAT report says the following:

    ‘2.39 Access to mental health care is difficult and patients are subject to stigma and discrimination.

    …

    2.40 Access to mental health care is not uniform across the country, with availability of services significantly more limited in rural areas than in urban cities and large towns. Across the country, an estimated 150 million people (12.5 per cent of the population) are in need of active interventions for mental illnesses, including nearly 12 million who are living with serious mental disorders. Given the shortfall of specialist and health services for mental illness, treatment is often unavailable or inaccessible even for those who actively seek health care.

    2.41 According to India’s National Health Profile 2018, there are 43 government mental health hospitals in India….. India has fewer than 4,000 mental health trained professionals – fewer than one per 100,000 population.

    ….

    2.42 In practice, mental health programs continue to suffer from severe constraints in technical, human and material resources, and remain a low priority on the public health agenda.’[219]

    [218] Ibid, [3.3].

    [219] Exhibit A13, p 16, [2.39] - [2.42].

20. The state of the Applicant’s mental health when viewed through the lens of availability and access to mental health care in India does constitute an impediment to his return and re-settlement in that country. On any objective view, it will be difficult for the Applicant to access the type and scope of mental health care in India.

21. Paragraph 9.2(1)(b): the Applicant lived the first 20 years of his life in India. He has lived for 15 years in Australia. At the Hearing, it was plainly obvious that he was proficient in the Hindi language because he gave much of his evidence via a Hindi interpreter. There is little to cavil with the proposition (and finding) that the Applicant’s proficiency in Hindi and his familiarity with Indian cultural norms has dissipated during his time in Australia such that this sub-paragraph 9.2(1)(b) could now be to constitute an impediment to his return. I will put this sub-paragraph to one side and render it neutral for present purposes.

22. Paragraph 9.2(1)(c): the Applicant’s written and oral evidence is replete with references to his immediate family in India. The PCF refers to him having a mother, sister and brother in India.[220] The material also discloses that he has three uncles in India and three cousins in India. It is difficult to accept that he will be devoid of or otherwise denied social support if returned to India. I have traversed the question of healthcare support for his psychological symptoms and, while perhaps not the same standard as that in Australia, he will have access to publicly available medical (i.e. mental health) care to the same level as would be available to other citizens of that country. The same principal applies to government-sourced benefits. While it can be accepted that his immediate family members in India may not be people of substantial means, there is little or no question that they will, at the very least, be able to offer him safe and secure lodgings if returned to that country.

    [220] Exhibit R1, p 160.

    Findings about impediments

23. I have looked at each of the three components to this paragraph 9.2 of the Direction. The Applicant attracts weight because his mental health symptoms can be safely found to constitute an impediment – both in terms of discrimination and available treatment – in the event of his return to India.[221] He also attracts weight because the medical support available to him in for his psychological symptoms in India will not be to the same standard and level as would be available to him here.[222]

    [221] Paragraph 9.2(1)(a) of the Direction.

    [222] Paragraph 9.2(1)(c) of the Direction

24. I am of the view that this Other Consideration (b) confers a moderate level of weight in favour of this Tribunal not exercising the discretion to refuse to grant the Visa sought by the Applicant.

    Other Consideration (c): Impact on victims

25. Most usually, this Other Consideration weighs against an Applicant because a victim of the subject offending has tendered a statement to the Tribunal stating why they would be adversely impacted by an applicant receiving a visa to remain here. There is no such statement before the Tribunal. I am also mindful that the position can sometimes work in favour of an applicant where a victim provides positive evidence in favour of an applicant remaining here. This scenario was contemplated by His Honour Justice Kerr in PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[223]

    [223] [2021] FCA 1235, [57]-[59].

26. In this case, such is the opaqueness in the evidence around the state of any relationship between the Applicant and Ms Lane, that it would be unsafe to construe her evidence as militative of the Applicant receiving a visa to remain here. At the Hearing (i.e during closing submissions), both parties confirmed this sub-paragraph should be put to one side and allocated neutral weight.[224] I agree.

    [224] Transcript, p 100, lines 33-45; p 101, lines 1-6; p 107, lines 11-17.

    Other Consideration (d): Impact Australian business interests

27. The parties are ad idem that this Other Consideration is not relevant to the instant determination and that it should carry neutral weight.[225] I agree.

    [225] Transcript p 101, lines 27-31; p 107, lines 11-17.

    Findings: Other Considerations

28. The application of the Other Considerations in the present matter can be summarised as follows:

    ·legal consequences of the decision: is of neutral weight;

    ·extent of impediments if removed: is of moderate weight in favour of this Tribunal not exercising the power conferred by s 501(1) of the Act to refuse to grant the Visa;

    ·impact on victims: is of neutral weight;

    ·impact on Australian business interests: is of neutral weight.

29. Section 501(1) of the Act provides that this Tribunal may refuse to grant an applicant’s requested visa if a decision-maker is satisfied that the applicant does not pass the character test. As explained previously in these Reasons, given the Applicant’s criminal offending history it is not contested that he does not pass the character test. Having regard to the Direction and to the totality of the evidence before me, I am of the view that the Tribunal should not exercise the power conferred by s 501(1) of the Act to refuse to grant the Applicant’s requested Visa.

30. In reaching this conclusion, I have had regard to the considerations referred to in the Direction. With regard to the weight I have allocated to each of these Primary and Other Considerations, I find as follows:

    ·Primary Consideration 1: confers a certain, but not determinative, level of weight in favour of this Tribunal exercising the power conferred by s 501(1) of the Act to refuse to grant the Visa;

    ·Primary Consideration 2: confers a certain, but not determinative, level of weight in favour of this Tribunal exercising the power conferred by s 501(1) of the Act to refuse to grant the Visa;

    ·Primary Consideration 3: confers a heavy level of weight in favour of this Tribunal not exercising the power conferred by s 501(1) of the Act to refuse to grant the Visa;

    ·Primary Consideration 4: confers a heavy level of weight in favour of this Tribunal not exercising the power conferred by s 501(1) of the Act to refuse to grant the Visa;

    ·Primary Consideration 5: confers a certain, but not determinative, level of weight in favour of this Tribunal exercising the power conferred by s 501(1) of the Act to refuse to grant the Visa.

1. I have outlined the weight attributable to each of the Other Considerations. I am of the view (and I find) that the combined weights I have allocated to Primary Considerations 3 and 4, together with Other Consideration (b) are sufficient to outweigh the combined weights I have allocated to Primary Considerations 1, 2 and 5.

2. A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal not exercising the power conferred by s 501(1) of the Act to refuse to grant the Visa sought by the Applicant.

   DECISION

3. Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision dated 19 April 2018 made by a delegate of the Respondent and substitutes it with a decision that the discretion in s 501(1) of the Migration Act 1958 (Cth) should not be exercised to refuse the Applicant’s Visa.

I certify that the preceding 223 (two hundred and twenty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

............[SGD].............

Associate

Dated: 12 October 2023

Date(s) of hearing:	21 and 22 September 2023
Advocate for the Applicant:	Mr Iyare Lucky Ehimudiamen (Principal)
Solicitors for the Applicant:	Lucky Iyare & Associates
Advocate for the Respondent:	Ms Charlotte Saunders (Senior Associate)
Solicitors for the Respondent:	Minter Ellison Lawyers

ANNEXURE A

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
RESPONDENT SUBMISSIONS
R1	Section 501G documents (paged 1- 207)	Various	10 July 2023
R2	Respondent’s Statement of Facts, Issues and Contentions (paged 1 -9)	21 August 2023	21 August 2023
R3	Respondent’s Supplementary Bundle (paged 1 -185)	Various	21 August 2023
R4	Respondent’s further Supplementary Bundle (paged 1- 21)	Various	31 August 2023
APPLICANT SUBMISSIONS
A1	Applicant’s signed statement	3 August 2023	7 August 2023
A2	Applicant’s Statement of Facts, Issues and Contentions (paged 1 -17)	4 August 2023	4 August 2023
A3	Report from Dr Sava Tsolis (Clinical Psychologist)	1 August 2023	7 August 2023
A4	Documents produced under summons request (Paged 1-95)	Various	11 September 2023
A5	Applicant’s reply to Respondent’s Statement of Facts, Issues and Contentions (Paged 1-4)	9 September 2023	11 September 2023
A6	Signed statement from Mr Kuljit Singh (Applicant’s friend)	2 August 2023	7 August 2023
A7	Signed statement from Ms Kimberly Lane (Applicant’s partner)	3 August 2023	7 August 2023
A8	Signed statement from Ms Kaicey-Jae Raines (Applicant’s friend)	3 August 2023	7 August 2023
A9	Signed statement from Mr Paramjeet Singh (Applicant’s friend)	3 August 2023	7 August 2023
A10	Letter of support from KARI caseworker+ information about KARI+ KARI family photos	7 February 2023	7 August 2023
A11	Letter of job offer from Mr Rishi Singh	24 July 2023	7 August 2023
A12	Bundle of Applicant’s course completion certificates	Various	7 August 2023
A13	DFAT Country Information Report on India	10 December 2020	7 August 2023
A14	Family photos	Undated	7 August 2023
A15	Updated letter of support from KARI caseworker	23 August 2023	19 September 2023