Kwatra and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 2633

Kwatra and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2633 (3 August 2020)
Division:GENERAL DIVISION
File Number:2020/2856
Re:Sanjay Kwatra
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member R West
Date:3 August 2020
Place:Melbourne

The Tribunal affirms the decision under review.
...................[sgd].....................................................
Member R West
Catchwords
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record and does not pass the character test – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – protection of the Australian community from criminal or other serious conduct – best interests of a minor child – expectations of the Australian community – other considerations – decision affirmed.
Legislation
Crimes Act 1958 (Vic)
Migration Act 1958 (Cth)
Sentencing Act 1991 (Vic)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
Gordon and Minister for Immigration and Border Protection (Migration), Re [2018] AATA 39
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Steve v Minister for Immigration and Border Protection [2018] FCA 311
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Secondary Materials
Direction No. 79 – Migration Act 1958 – Direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA – Part C
REASONS FOR DECISION
Member R West
3 August 2020
INTRODUCTION

In these proceedings, the Applicant seeks a review of the decision of a delegate of the Respondent made on 11 May 2020 not to revoke the mandatory cancellation of his Class BB Subclass 155 Five Year Resident Return visa, which was cancelled on 6 June 2019 pursuant to s 501(3A) of the Migration Act 1958 (Cth) (“the Act”). An application for review of the delegate’s non-revocation decision was lodged with the Tribunal on 13 May 2020.
The cancellation of the Applicant’s visa on 6 June 2019 under s 501(3A) of the Act followed his convictions in the Dandenong Magistrates’ Court on 28 March 2019 for offences related to the making of vexatious and false calls to emergency services, which resulted in the imposition of an 18 month prison sentence.
The Tribunal conducted a hearing of the application on 22 and 23 July 2020. The Applicant was self-represented. The Respondent was represented by Mr D Brown, a solicitor with the Australian Government Solicitor.
The hearing was conducted in the context of restrictions placed on the community in response to the COVID–19 pandemic. These restrictions necessitated that the hearing not be conducted in person. The Applicant and the Respondent each consented to the hearing proceeding on 22 and 23 July 2020 on the basis that it was conducted by audio/visual link.
In conducting the review, the Tribunal has had regard to:
(a)the documents produced to the Tribunal by the Respondent pursuant to s 500(6F) of the Act, sequentially numbered from 1 to 167 (G Documents), and supplementary documents produced under summons and filed by the Respondent, sequentially numbered from 168 to 201 (SG Documents);
(b)further documents tendered by the Respondent in the course of the proceedings, namely:
i.DFAT Country Information Report India;
ii.International Journal of Applied Basic Medical Research article regarding the Mental Health Act 2017; and
iii.Australian Government Social Security Guide ‘Social Security System in India’.
(c)documents tendered by the Applicant and marked as exhibits, being:
i.witness statement of the Applicant (Exhibit A1);
ii.Applicant’s radiology report dated 21 January 2020 (Exhibit A2);
iii.Applicant’s ophthalmology report dated 20 March 2020 (Exhibit A3);
iv.witness statement of Mr Harjap Singh (Exhibit A4);
v.witness statement of Mr Godfrey Fernandez (Exhibit A5); and
vi.witness statement of Mr Gulshan Dawer (Exhibit A6).
(d)the oral evidence of:
i.the Applicant;
ii.Mr Singh;
iii.Mr Fernandez; and
iv.Mr Dawer.
BACKGROUND
The applicant is a 56 year old Indian national. He first arrived in Australia on
19 December 1996, aged 32, with his wife and seven-year-old daughter. A son was born in Australia in 1998. The Applicant and his wife separated in 2001 and the Applicant has had no contact with his children since that time.
The Applicant has an extensive criminal record. His offending commenced shortly after his arrival in Australia and continued until his incarceration in 2019. A complete statement of the Applicant’s criminal record is set out in a national criminal history check produced by the Australian Criminal Intelligence Commission at pages 37 to 39 (inclusive) of the G Documents.
The Applicant and his family lived initially in Sydney when they arrived in Australia. In the period from 1998 to the end of 2000 he was convicted of five offences in the

Ryde Local Court and one offence in the Downing Centre Local Court for making false representations to the police, breaching an apprehended domestic violence order, common assault (which he admitted in his oral evidence related to his wife), possession of a prohibited drug and two driving offences. In each case he received a fine and in the latter case his driver’s licence was cancelled.
The Applicant moved to Melbourne in 2001 and during that year he separated from his wife.
In 2002 he was convicted for public drunkenness and was charged but not convicted for wilful property damage. In 2003 he was convicted for making a false report to police, public drunkenness and intentionally damaging property.
In 2004 he was convicted after pleading guilty to four separate offences and sentenced to two-and-a-half years imprisonment with a non-parole period of 18 months.

In sentencing the Applicant Justice Nixon of the County Court made the following comments in his sentencing decision:[1]
1. …you have pleaded guilty to one count of making a threat to destroy or damage property, an offence for which Parliament has prescribed a maximum penalty of five years' imprisonment. You have also pleaded guilty to a count of reckless conduct endangering a person, for which the maximum penalty is also five years' imprisonment. Finally, you have pleaded guilty to two counts of arson, a crime where Parliament has fixed a maximum penalty of 15 years' imprisonment.
…
[1] G Documents at pp.47-50.
3. You have committed the offences which are the subject of Counts 1 and 2 on the presentment on 2 March 2003. You were on bail for those crimes when you committed the offences which are the subject of Counts 3 and 4 on that same presentment.
His Honour then provided the following details of the crimes:
4. …On 2 March 2003, you were renting [address] in Dandenong. About a fortnight before that time, you had been asked to vacate the unit. About midnight on 2 March you contacted Mr Fernandez, a social worker, seeking more time to stay in the unit. Over the telephone, he told you that it was a matter for the owner… In the course of that conversation you told Mr Fernandez, "I have a mental problem. No one can help me, I'm prepared to end my life and I will burn the place down." That threat forms the subject of Count 1.
5. Shortly after this conversation, you apparently called the ambulance and the police. You were then seen either asleep or having passed out in front of the television which was on, and there was an open bottle of whisky nearby. Conversations occurred and you told the police that they would be back in about 15 minutes. The police asked why they would be back and you replied, "I've no other choice, I'm broke - not financially but mentally." You were upset and were told not to drink any more.
6. You asked to be taken to the Dandenong Psychiatric Hospital, but then said you would not go. The police and ambulance crew then left. Shortly thereafter you set fire to your unit. There were two seats of the fire, one in the lounge and the second in a bedroom. Police and the Country Fire Authority attended and the fire was extinguished.
7. You were incoherent, agitated and extremely intoxicated, and repeated what you had earlier said to the effect that you had no other choice, you were broke not financially but mentally.
8. The fire caused approximately $5000 damage to the unit… At a committal mention on 26 May, you pleaded guilty to these crimes and were bailed to the callover list of 25 July.
9. On 5 June, you committed the crimes which are the subject of Counts 3 and 4 on the presentment. At that time, you were living at the Western lodge, Gordon Street in West Footscray. That was a supported residential facility for up to 80 people run by the Department of Human Services. At about 5.10a.m. you approached the night caretaker and demanded that you be given your medication. You were very agitated, and smelt strongly of intoxicating liquor. You said that if you did not get your medication there would.be trouble, and the staff would have to get the fire brigade. The caretaker was concerned and woke the night manager. There was a conversation in which you threatened to kill yourself and take all the medication at once. In fact, the manager gave you one tablet and you appeared to calm down and returned to your room.
10. At about 6 a.m. you dialled 000 and the ambulance, police and the fire brigade attended. You claimed at that time that all you wanted was food. The emergency services left. You returned to your room and used a cigarette lighter to set fire to the curtains. The fire spread, but the sprinkler system operated and a portable sprinkler was also used and that assisted to put the fire out. You were observed smoking a cigarette and laughing outside, the door of your room. You were arrested and in a record of interview stated that you wanted to harm yourself.
11. This second fire caused $4603.53 damage.
Following his release from prison in 2005 the Applicant was convicted of two offences of breaching an intervention order taken out by his wife and one count of unlawful assault, which the Applicant admitted in his oral evidence was perpetrated on his wife. As part of his sentencing for these offences the Applicant was made subject of a community based order for six months.
In 2006 the Applicant was found guilty of failing to comply with the community based order and was convicted of a further breach of the intervention order. The Applicant was also convicted of other offences which included theft and obtaining financial advantage by deception. He was again made subject to a community based order for 12 months.
In March 2011 the Applicant was convicted of offences related to making a false call to an emergency service and conveying a bomb hoax for which he was placed on a good behaviour bond and made subject to a community based order.
In April 2011 the Applicant was again convicted of offences related to making a false call to an emergency service and conveying a bomb hoax, and for failure to comply with the community based order. He was sentenced to three months imprisonment. He was also found to breach his community based order and an 18 month community based order was imposed.
In August 2012 the Applicant was again convicted of conveying a bomb hoax and failing to comply with the community based order.
In 2015 the Applicant was convicted of using a carriage service to harass and of conveying a bomb hoax for which he was sentenced to 6 months imprisonment with the sentence to be served by way of a drug treatment order under s 18Z of the Sentencing Act 1991 (Vic) (“the Sentencing Act”). The Applicant gave evidence that the order required him to participate in a program which involved daily urine testing, access to a psychologist, provision of community health services and supervision by a corrections officer. The Applicant said that he participated in the program diligently and completed it in nine months.
Notwithstanding his participation in the program the Applicant was convicted in April 2016 of public drunkenness and several related offences.
In 2017 the Applicant was again convicted of offences related to the making of vexatious calls to an emergency service and breaches of his bail conditions. He was sentenced to 35 days imprisonment.
On the Applicant’s release from prison, he was again convicted in 2018 of making vexatious calls to an emergency service, breaching bail conditions and public drunkenness. He was placed on a 12 month community correction order.
In January 2019 the Applicant was again convicted of making vexatious calls to an emergency service, breaching bail conditions and contravention of the community corrections order. He was sentenced to 142 days imprisonment.
Finally, in March 2019 the Applicant was convicted of making false and vexatious calls to an emergency service and failing to comply with a sentencing order. He was sentenced to 18 months in prison with a non-parole period of 9 months. In sentencing the Magistrate, Mr Vandersteen, made the following remarks:[2]
Now before the court with the new offending are yet again two offences of making a vexatious call to emergency service, and making a false call to an emergency service. You have a very significant prior criminal history. Your offending is essentially the same, and it's been very repetitive, as you would understand, Sanjay, over a period of time now of at least, of this type of offending going back to 2011. Prior to that, in 2004, there was (indistinct) with prior conviction of arson, and in between there have been instances, for example, of you breaching a family violence intervention order…
This offending, as I expressed to Mr Smith and you on the previous occasion, is actually very dangerous offending. Any vexatious or false call to emergency service is a serious offence. It's serious because you are diverting services away from what could otherwise be their normal work, and in doing that, initially you are placing those emergency responders to risk of harm, because the manner in which they respond to your calls, whether it is for example, breaking the road rules through speed, or going through red lights. Look, otherwise diverting emergency services from legitimate calls.
[2] G Documents at pp.40-43
Upon release from prison the Applicant was taken into immigration detention.
LEGISLATIVE FRAMEWORK
Section 501CA(4) of the Act enables the Tribunal on review to revoke the mandatory visa cancellation decision if it is satisfied that:
(e)the Applicant passes the character test as defined in s 501; or
(f)there is another reason why the cancellation should be revoked.
The Applicant’s visa was cancelled on 6 June 2019 under s 501(3A) of the Act as the delegate was satisfied that he did not pass the character test. Section 501(6)(a) provides that a person is deemed not to pass the character test if they have a substantial criminal record. Section 501(7)(c) provides that for the purpose of the character test a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. The Applicant was convicted and sentenced to an aggregate 18 months imprisonment in the Dandenong Magistrates’ Court on 28 March 2019.
The Applicant does not dispute that he does not pass the character test in s 501(3A) of the Act.
Accordingly, the sole issue before the Tribunal in these proceedings is whether, under

s 501CA(4)(b)(ii), there is another reason why the mandatory cancellation should be revoked.
The existence or otherwise of ‘another reason’ should be established on the balance of probabilities.[3]
[3] Re Gordon v Minister for Immigration and Border Protection (Migration) [2018] AATA 39 at [57].
Direction 79
Section 499 of the Act authorises the Minister to give written directions to a person or body having functions or powers under that Act, provided that the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) of the Act mandates that the Tribunal must comply with the directions.[4]
[4] Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591.
In this case, Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (“the Direction”), applies.
The Direction provides guidance for decision-makers in determining, relevantly, whether there is another reason why the cancellation of the Applicant’s visa should be revoked. Paragraph 8(1) of the Direction provides that decision-makers must take into account the primary and other considerations relevant to the individual case.
The relevant considerations in relation to the revocation of a cancellation decision are contained in Part C of the Direction. Paragraph 13 of the Direction provides for three primary considerations:
(a)protection of the Australian community from criminal or other serious conduct;
(b)best interests of minor children in Australia affected by the decision; and
(c)expectations of the Australian community.
Paragraph 14 of the Direction provides for other considerations. These include, but are not limited to:
(a)international non-refoulement obligations;
(b)strength, nature and duration of ties;
(c)impact on Australian business interests;
(d)impact on victims; and
(e)extent of impediments if removed.
The principles in paragraph 6.3 of the Direction reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable and are to inform the consideration of each of the primary and other considerations. The principles in paragraph 6.3 provide a framework within which decision-makers should approach their task of deciding whether to revoke cancellation.
The principles in paragraph 6.3 are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
EVIDENCE

The Applicant gave evidence that he was born in Bombay but grew up in Dehli.

He graduated from the University of Dehli in 1985 with a Bachelor of Science degree. While he was at University both of his parents died and this was distressing for him, especially as he had to ignite the funeral pyre for each of his parents in accordance with Hindu custom. After the death of his parents his only close relative was his older sister who passed away in 2009.
He said that he married in 1987 and his daughter was born in 1988. He worked in a sales position in Dehli before migrating to Australia in 1996 with his wife and daughter. His family settled initially in Sydney and his son was born in 1998. The family moved to Melbourne in 2001 and he separated from his wife and she took the children with her.

He stated that he has not had any contact with the children since the separation.

He is aware that his daughter, who is now 32 years old, has had a child but he has had no contact with his daughter or his grandchild.
The Applicant said that when he first arrived in Australia he took various casual jobs including as a driver and stocking shelves in a supermarket. He said that he subsequently obtained a series of temporary positions with companies such as Telstra, working in call centres and customer service. He said that he ceased work completely in 2008 due to his health problems. The Applicant told the Tribunal that he suffers from depression/anxiety and post-traumatic stress disorder (PTSD) as well as a degenerative spinal condition, type 2 diabetes, distorted vision and hypertension. Prior to entering prison, the Applicant was in receipt of a disability support pension.
The Applicant was open about his offending although at times he was reluctant to provide details of the offences, particularly those involving domestic violence against his wife. While he did express remorse for his actions in general terms, he did not demonstrate in his evidence to the Tribunal that he had a clear understanding of the seriousness of his offending or its impact on others. He attributed the cause of his offending to his abuse of alcohol.
The Applicant called three witnesses to give evidence in support of his application.
Mr Harjap Singh said he had known the Applicant for 13 years. He said he currently runs a motor vehicle service and repair business, and the Applicant does voluntary work in his business performing administrative tasks. He attested to the Applicant’s underlying good character describing him as of good morals, honest and truthful. He attributed the Applicant’s criminal conduct to alcohol dependency and mental health issues.
Mr Fernandez, who is the owner of an engineering business, said that he had known the Applicant for 20 years. He said he was fully aware of the Applicant’s criminal history and had supported him on previous occasions in court. He also attributed the Applicant’s criminal behaviour to alcohol dependence and expressed optimism that the Applicant would not relapse into criminal behaviour if released back into the community.

He indicated to the Tribunal that he would find the Applicant a suitable position with his company if he was released from detention.
Mr Dawer, a real estate agent, said he had known the Applicant for about 12 years and that he had rented him a unit in a supported housing complex that he managed.

He described the Applicant as educated, articulate, honest and of good moral character.

He said that the Applicant was well known and well respected in the Indian community, and that he regularly helps out at the Sikh Temple on the weekends, serving food and cleaning. Mr Dawer gave an undertaking to the Tribunal that, if the Applicant is released into the community, he will find him long term accommodation, and pay his bond and first month’s rent to support the Applicant.
Each of the three witnesses expressed their commitment to support the Applicant in his efforts to rehabilitate himself from alcohol dependency and to address his mental health issues. They all expressed their grave concern about what would happen to the Applicant if he is returned to India.
Medical Evidence
The following independent medical evidence was before the Tribunal:
a.A medical report of Dr Fred Chen, ophthalmologist, who examined the Applicant’s eyes on 20 March 2020. Dr Chen noted the absence of sub retinal fluid and stated that the Applicant has good visual acuity of 6/9 in each eye and concluded that no treatment is required.[5]
b.A radiological report dated 21 January 2020[6] confirmed the presence of degenerative changes in the Applicant’s cervical and lumbar spine.
c.A Patient Health Summary for the Applicant prepared by Dr Bharat Saluja dated 17 June 2019 notes that his conditions include depression, type 2 diabetes, hypercholesterolaemia, hypertension and cervical spondylosis.
PRIMARY CONSIDERATIONS
[5] Exhibit A3.
[6] Exhibit A2.
Protection of the Australian community
In considering whether the Applicant represents a risk to the Australian community, the Tribunal has had regard to the matters set out in paragraph 13.1 of Part C of the Direction.
Paragraph 13.1 provides:
(1)       When considering protection of the Australian community, decision-makers           should have regard to the principle that the Government is committed to   protecting the Australian community from harm as a result of criminal   activity or other serious conduct by non-citizens. 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.
The nature and seriousness of the conduct
In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, the Direction requires that decision-makers have regard to the factors set out in paragraphs 13.1.1(1)(a)–(i). A consideration of the factors, relevant in the Applicant’s case, is set out below.
Principle (a) – violent and/or sexual crimes are viewed very seriously
There is no evidence that the Applicant has engaged in crimes of a sexual nature, but his criminal record includes offences of common assault (in 2000), reckless conduct endanger serious injury (in 2004) and unlawful assault (in 2005). The Tribunal regards these offences as serious offences.
Principle (b) – crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed
The Applicant confirmed in his evidence that the common assault conviction in 2000 and unlawful assault conviction in 2005 were both offences against his wife and were associated with breaches of an apprehended violence order and other intervention orders. Accordingly, the Tribunal regards these as very serious offences notwithstanding that both offences attracted minimal penalties.
Principle (c) – 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, are serious
There is no evidence that the Applicant committed any offences against the elderly, other vulnerable people or government officials. The numerous false reporting and hoax calls to emergency services, while serious, are not offences against the officials. They are more in the nature of offences against the interests of the public by interfering with the effective performance of emergency services.
Principle (d) – the sentence imposed by the courts for a crime or crimes
The Applicant was sentenced to imprisonment on five occasions for periods of two years and six months with a minimum parole period of 18 months in 2004, three months in 2011, 35 days in 2017, 142 days in 2019 and 18 months in 2019. The imposition of a custodial sentence indicates that the courts regard the offences as serious. The imposition of sentences of two-and-a-half years and 18 months in particular indicate that those offences were regarded as very serious matters. The Magistrate noted this in his sentencing in March 2019:
This offending, as I expressed to Mr Smith and you on the previous occasion, is actually very dangerous offending. Any vexatious or false call to emergency service is a serious offence.
Principle (e) – the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness
The Applicant was convicted of over 50 offences during the period from 2000 to 2019. His offending was frequent and consistent throughout that period save for a five year period between 2006 and 2011.
There is no definite trend of escalating seriousness in the Applicant’s offending. His later offences of vexatious and hoax calls were serious but his earlier offending included serious crimes such as arson and assault. Rather than there being a clear trend it would be more accurate to say that there was ongoing crime of varying types and seriousness throughout the period.
Principle (f) – the cumulative effect of repeated offending
There was clearly a concerning cumulative effect of the Applicant’s repeated offending over the period from October 2017 until March 2019 during which time the Applicant was convicted of 16 charges of making hoax calls, some involving bomb threats, and vexatious calls to emergency services. The charges may in fact just be the tip of the iceberg. The police report of events on the night of 28 March 2015[7] notes that audio records kept by emergency services indicate that the Applicant made 92 calls to 000 between
[7] SG Documents at p.177.
1 March and 29 March 2015.
In addition, over the same period the Applicant was convicted of four breaches of bail conditions, one breach of a community correction order and one breach of a sentence order. This repeated offending demonstrates a disregard for the law and an unwillingness to comply with lawful constraints placed on his conduct.
Principle (g) – whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending
There is no evidence that this principle is relevant.
Principle (h) – 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)
On 2 December 2004, following the Applicant’s conviction for arson offences, the Respondent wrote to him to issue a formal warning. The warning letter reads in part:
After taking into account all relevant considerations, a delegated officer has made a decision not to cancel your visa on character grounds, but rather to issue a formal warning to you. In the decision record, the delegate stated the following:
"Mr Kwatra's fate is in his own hands. He must address his abuse of alcohol as this appears to be the source of his antisocial behaviour. He has demonstrated he can find and keep employment. It would be disappointing if he offends again due to alcohol abuse and if he does he should not expect sympathy."
Please note that visa refusal or cancellation may be reconsidered if fresh information comes to the notice of the Department or if you incur a liability on new grounds.
Disregard of this warning will weigh heavily against you if your case is reconsidered.
Principle (i) – a crime committed while the non-citizen was in immigration detention… is serious
There is no evidence that the Applicant committed any crime while in detention.
Conclusion
Having regard to the factors set out in paragraphs 13.1.1(1)(a)–(i), the Tribunal is satisfied that the Applicant’s criminal conduct over the period from 2000 until his conviction in March 2019 is very serious conduct. It has involved consistent offending involving a variety of criminal behaviours including violence against his spouse, arson, dishonesty and public nuisance. It has culminated in more recent years in the repeated anti-social and dangerous practice of making vexatious calls to the essential services hotline threatening to compromise the effective delivery of a vital service to the public. Moreover, the Applicant’s repeated offending has been in breach of court orders designed to place lawful limits on his behaviour.
The Tribunal accepts that the Applicant’s conduct in many of these incidents was heavily influenced by his consumption of alcohol and the Applicant’s mental health conditions contributed to his alcohol abuse. Nevertheless, the record indicates that there were opportunities for the Applicant to address his problems with alcohol and he was provided with opportunities by the courts to do so. His friends gave evidence that they tried to counsel him to control his conduct and offered him support. Further, the Respondent’s delegate elected not to act on the basis of the Applicant’s serious offending in 2004 when he was imprisoned for arson offences and instead gave him a clear warning regarding the consequences of further offending.
Having regard to these matters and the extensive and serious nature of the offending the Tribunal does not accept that it should discount the seriousness of the offending because of the part played by the Applicant’s alcohol problems.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 13.1.2 of the Direction states:
(1)      In considering the risk to the Australian community, decision-makers must   have regard to, cumulatively:
a)        The nature of the harm to individuals or the Australian community                should the non-citizen engage in further criminal or other serious   conduct; and
b)        The likelihood of the non-citizen engaging in further criminal or   other serious conduct, taking into account available information and   evidence on the risk of the non-citizen re-offending (noting that   decisions should not be delayed in order for rehabilitative courses   to be undertaken).
Nature of the harm
The Applicant’s offending is serious. It has involved two convictions for assaulting his wife, two offences of arson and one of reckless conduct endangering life and multiple offences for making vexatious calls to the emergency services number, including bomb hoaxes. Each of these offences has the potential to cause serious harm to members of the Australian community. The offences related to making vexatious calls to the emergency services were viewed as very serious by the Court, as evidenced by the lengthy sentence imposed on the Applicant in March 2019. The Applicant’s repeated, unwarranted and false reporting to the emergency services threatened to compromise the efficiency and effectiveness of a vital service to the public. The dispatch of emergency services, such as the police and ambulances, is time-critical and any delay or disruption can literally be life threatening. In addition, by requiring the police to apply its resources to investigate his false reports the Applicant caused limited police resources to be diverted from their legitimate role of protecting the public.
The Tribunal is satisfied that should the Applicant engage in any further conduct of the kind for which he was previously convicted it has the potential to cause significant harm to members of the Australian community.
The likelihood of re-offending
The Tribunal is satisfied, having heard the evidence, that the key to whether the Applicant would re-offend if he is released into the community is his ability to control his consumption of alcohol. As Nixon J observed in sentencing the Applicant in 2004:
If you do revert to using alcohol, as you have in the past, it is highly likely that you will drink to excess, and should you do that you will almost certainly re-offend.
The Applicant invited the Tribunal to accept that he has abstained from alcohol during his imprisonment and immigration detention and that he is committed to abstaining from alcohol use if he is released into the community. There is no indication in the evidence that the Applicant has not abstained from alcohol as he claims. The Tribunal accepts his evidence on this point.
However, the circumstances in prison and detention are very different from those that the Applicant would face in the community. Alcohol has not been available, or at least would have been difficult to procure, while he has been incarcerated. In addition, the Applicant has been in a supervised environment and with different life stressors.
The Applicant’s behaviour during incarceration is not necessarily indicative of his behaviour if he were to be released into the community. The evidence shows that he has had periods of abstinence in the past which have not prevented him from resuming alcohol consumption. In 2004 he served 18 months in prison for the arson offences and was subject to an order pursuant to s 464ZF(2) of the Crimes Act 1958 (Vic) for the compulsory taking of saliva samples to monitor his drug and alcohol use in prison.[8] Again in 2015 the Applicant gave evidence that he abstained from alcohol for six months while participating in the program under the Drug Treatment Order, made by the court in 2015. He also served two terms in prison for three months and 142 days when he would not have had access to alcohol.
[8] G Documents at p.54.
The Tribunal is not persuaded that the Applicant’s current period of abstinence, of itself, is a reliable indicator that he will not relapse into alcohol abuse and reoffending if released into the community.
An important aspect of any measure taken to address the Applicant’s alcohol abuse is access to treatment for his mental condition. There is limited evidence that the Applicant has received proper professional help with his underlying mental health issues. He seems to have had some psychiatric treatment while in prison in 2002/2003. His Honour Justice Nixon commented in passing sentence in 2004:
17. You have been treated by Dr David Dammery, a highly qualified and very experienced general practitioner, between June 2002 and 29 May 2003, for depression, alcohol abuse, behavioural problems and hypertension.
Dr Dammery provided extensive counselling for you and prescribed anti-hypertensive medication, anti-depressants and tranquillisers for panic attacks.
18. You have now been in prison since June 2003. A psychiatric registrar assessed you in June 2003 and you were reviewed by a consultant psychiatrist in September of last year, and more recently in January 2004.
Justice Nixon also noted a report from Dr Eugenie Tuck, the Director of Medical Services at Port Philip Prison, that when last reviewed by a consultant psychiatrist in January 2004, the findings as recorded in Dr Tuck's report were that there were no symptoms of psychiatric illness that were evident, although the report noted that the Applicant was anxious about [his] future.
Justice Nixon recognised the need for treatment of his mental health condition in addressing the Applicant’s re-offending and stated in his sentencing decision:
21. You need treatment when you are granted parole, and I propose to forward a copy of these reasons for sentence and copies of the report of Dr Dammery of 25 February 2004 and Dr Eugenie Tuck of 12 February 2004 to the adult Parole Board
There is no evidence that the Applicant received psychiatric treatment upon being paroled.
There is no definitive evidence that the Applicant has been properly assessed by a psychiatrist since 2004. The Applicant stated that he had a few sessions with a psychiatrist, Dr Saluja, before going into prison in March 2019. But Dr Saluja’s brief report of 2 June 2018 indicates that he had not fully diagnosed the Applicant’s condition nor commenced treatment by the time the Applicant entered prison. The report states in its entirety:
This is to confirm that I have started assessing and managing Mr. Sanjay Kwatra … in my clinic from 19/05/2018 onward. My current working diagnosis is Alcohol Dependence and Post Traumatic Stress Disorder.[9]
[9] G Documents at p.89.

The Applicant also said that he had seen a psychiatrist while in prison and had counselling sessions with a mental health nurse, but no medical reports were available to the Tribunal. He also said he attended classes on drug and alcohol abuse while in prison.[10] There is no evidence that the Applicant has received treatment for his mental condition while in immigration detention.
[10] G Documents at p.118.
The principal evidence available to the Tribunal regarding treatment provided to the Applicant for his mental health condition is contained in the reports of
Mr Johny Chacko Mattam, a mental health social worker from the Change Life organisation. Mr Mattam is not a psychiatrist or clinical psychologist. He purports to have known the Applicant for seven years and since 19 February 2018 has seen the Applicant on referral from Dr Simran Bassi, the Applicant’s GP. The Tribunal was not provided with any reports from Dr Bassi, but Mr Mattam described his referral as being based on Dr Bassi’s diagnosis of reactive depression and anxiety. Mr Mottam reported on
26 June 2018:[11]
A risk assessment revealed that [the Applicant] is addicted to alcohol and consumed a lot when he feels depressed. He gets bored quite often and lack of engagement or effective use of time and relies on alcohol to forget everything...
[the Applicant] has demonstrated a commitment to therapy, willingness to change and openness to suggestions.
[11] G Documents at pp.90-93.
He has self-reported achieving some symptom reduction since commencing therapy including being able to successfully implement distraction techniques and strategies to assist him to reduce time spent worrying about issues.
The Tribunal is cautious about giving undue weight to Mr Mattam’s report. First, it does not assist in diagnosing the Applicant’s mental condition as Mr Mattam is not qualified to give such a diagnosis. Secondly, Mr Mattam’s observations are at odds with the reported behaviour of the Applicant at the time. He was convicted of public drunkenness and making vexatious calls to an emergency service within a short time after the report was prepared. Finally, the treatment provided by Mr Mattam over the prior seven years appears to have had minimal effect on the Applicant given the Applicant’s own evidence regarding his mental state and the extent of his criminal conduct during the period.
On the basis of the limited medical evidence available, the Tribunal is not satisfied that the Applicant’s mental health condition has been properly assessed and diagnosed or that it has been effectively treated. Without a proper assessment and diagnosis, it is difficult for the Tribunal to be satisfied that the Applicant has a positive prognosis such that he is unlikely to relapse into alcohol abuse if released into the community.
The Applicant expressed his commitment to address his alcohol abuse if he is released into the community. He stated that he has contacted a Ms Carly Pickering from the Drug and Alcohol Support Recovery Centre in Dandenong and, if he is released into the community, he was committed to continue counselling with her for relapse prevention and psych-education. Ms Pickering confirmed[12] that she saw the Applicant for three drug and alcohol counselling sessions in January–March 2019 prior to his incarceration. Other than confirming that the Applicant presented to his appointments punctually and engaged respectfully her report does not give any assessment of the Applicant’s progress.
The Applicant also said that he would continue to see Mr Mattam from the Change Life organisation and Mr Mattom confirmed that he would provide such counselling.[13]
[12] G Documents at p.95.
[13] G Documents at p.103.
In addition, the Applicant said that he would seek treatment from his GP, Dr Bassi and the psychiatrist, Dr Saluja.
Mr Fernandez gave evidence that he had identified a two to three month rehabilitation program offered by the Salvation Army which would be available to the Applicant.
Mr Fernandez explained that he had personal experience with some of his employees who were dealing with drug addiction and he recognised that people go in and out of drug use. He offered the observation that the environment in which the Applicant lived may be an important factor for him. He recounted that in the past the Applicant had neighbours with whom he drank, and this encouraged his abuse of alcohol. Mr Fernandez expressed the view that the Applicant’s release into the community should be on condition that he undertake rehabilitation and that he attend a rehabilitation centre for a few months to learn how to switch off. He also said that the Applicant needed to be kept occupied in order to avoid a relapse and he was prepared to offer him a part-time job so that he had something to occupy his time. These views were echoed by Mr Singh who commented in his evidence to the Tribunal that the Applicant was adversely affected by the people with whom he lived who were all younger. He said that the Applicant needed to be around people his own age and in a government-funded house or a community facility.
Mr Fernandez also observed that the Applicant needs to talk with people when he gets depressed because if there is no-one there, he gets anxious and has panic attacks.
Having regard to the comments of the people who have known the Applicant personally over a long period, Mr Fernandez and Mr Singh, it appears that there are a number of societal factors which have also played a part in the Applicant’s abuse of alcohol.
The Applicant claims that he has used the time in prison and detention to reflect on his past conduct. He said that he has been alcohol free for over 18 months. He has been doing meditation, has seen a psychiatrist and a mental health nurse, participated in sporting activities, completed a certificate course in MS Word and Excel and a finished a course on avoiding re-offending and has adopted a healthy diet. He claims that his diabetes has improved and he feels he has overcome his fears and anxieties. He said he feels rejuvenated and does not crave alcohol.[14]. While these assertions offer encouragement that the Applicant may be able to overcome his vulnerability to alcohol abuse, the Tribunal does not underestimate the magnitude of the challenges he will face if released into the community.
[14] See G Documents at p.118.
The Applicant’s problem with excessive consumption of alcohol is of long standing.

He admitted in his evidence that his excessive use of alcohol commenced in 2001 when he separated from his wife, but his criminal record includes offences of driving with a high range Prescribed Content of Alcohol (PCA) and possession of a prohibited drug as early as 2000.
The Applicant has a long history of repeated and varied criminal conduct in which alcohol played a prominent part, including domestic violence, public drunkenness, wilful property damage, arson, theft and making vexatious calls to emergency services.
The Applicant has demonstrated a disregard for court orders, including intervention orders, community-based orders and bail conditions.
The Applicant has not responded to warnings. On 2 December 2004 he was officially warned by the Respondent of the consequences for his visa status of continued offending.

He was warned by Nixon J in March 2004.
The Applicant has been offered opportunities for rehabilitation, including several non-custodial community-based orders and the conversion of a custodial sentence by way of a Drug Treatment Order under s 18Z of the Sentencing Act. The conditions placed on community based orders made on 18 March 2005[15] and 21 April 2006[16] included that the Applicant undergo assessment and treatment for alcohol/drug addiction or submit to medical/ psychological/ psychiatric assessment and treatment to reduce re-offending.

The community-based order made on 20 April 2011[17] stipulated in addition that the Applicant be prohibited from drinking alcohol. Each of these orders were subject to proceedings for breach.
[15] SG1 at p.189.
[16] SG1 at p.188.
[17] SG1 at p.186.
In each case the Applicant has been unable or unwilling to take advantage of the opportunity to address the underlying causes of his offending.
The Applicant’s alcohol consumption has not been deterred by periods of incarceration imposed on him for crimes when under the influence of alcohol. He was convicted in March 2019 of offences for which he had previously been convicted notwithstanding terms of imprisonment in March 2004 (for 18 months), in April 2011 (for 3 months), in October 2017 (for 35 days) and in January 2019 (for 142 days).
The Applicant’s alcohol abuse has not responded to intervention in the past. Magistrate Mr Vandersteen noted this in his sentencing remarks in March 2019 when he said:
There have been numerous responses in relation to your offending. It's included you being placed on a drug treatment order. It has included you being placed on multiple community corrections orders. You've been involved in the drug diversion program, and that was with Spencer. You've been a very difficult person to manage. On the one hand you can engage. On the one hand I accept that you appear quite bright, articulate, and capable. But sitting behind that is a very significant mental health diagnosis.
At times, from what I've now read on the community corrections breach, you've pushed back, not engaged, as well as you should have in terms of the treatment and rehabilitation programs that have been offered to you. At times, it appears that you believe that you are better than those who are facilitating these programs, and as such, you've said that you feel that you should be taking the program. You have changed (indistinct) people who treat you. You've got a friend today in court who I know is very supportive of you. I know that when you are free of, particularly alcohol, you are less likely to commit an offence.
The following illustrates the Magistrate’s concern.
On 13 August 2015, the Applicant was convicted of offences and sentenced to six months imprisonment to be served by way of a Drug Treatment Order under s 18Z of the Sentencing Act. He gave evidence that the program was for a maximum of two years and involved daily urine testing, access to a psychologist, provision of community health services and supervision by a corrections officer. The Applicant said that he participated in the program diligently and completed it in nine months. Yet by 21 April 2016 he was convicted of multiple public drunkenness and related offences and his alcohol abuse was a major contributing factor to his conviction for several offences in October 2017.
Having regard to all of the evidence, the Tribunal is satisfied that if the Applicant were released into the community again it is very likely that he will revert to the excessive consumption of alcohol and inevitably re-offend.
Conclusion
The Tribunal finds that there is a significant risk that the Applicant will commit further offences of a serious nature or engage in other serious conduct if released into the Australian community and this represents a risk to the welfare of the Australian community. The welfare of the Australian community is a primary consideration under Paragraph 13.1 of the Direction and the risk of re-offending weighs heavily in favour of not revoking the cancellation of the Applicant’s visa.
Best interests of minor children in Australia affected by the decision
Paragraph 13.2 of Part C of the Direction provides:
(1)       Decision-makers must make a determination about whether revocation is in   the best interests of the child.
(2)       This consideration applies only if the child is, or would be, under 18 years   old at the time when the decision to revoke or not revoke the mandatory   cancellation decision is expected to be made.
(3)       If there are two or more relevant children, the best interests of each child               should be given individual consideration to the extent that their interests   may differ.
(4)       In considering the best interests of the child, the following factors must be            considered where relevant:
a)        The nature and duration of the relationship between the child and   the non-citizen. Less weight should generally be given where the   relationship is non-parental, and/or there is no existing relationship   and/or there have been long periods of absence, or limited   meaningful contact (including whether an existing Court order   restricts contact);
b)        The extent to which the non-citizen is likely to play a positive    parental role in the future, taking into account the length of time until   the child turns 18, and including any Court orders relating to   parental access and care arrangements;
c)        The impact of the non-citizen’s prior conduct, and any likely future                conduct, and whether that conduct has, or will have a negative   impact on the child;
d)        The likely effect that any separation from the non-citizen would   have on the child, taking into account the child’s or non-citizen’s   ability to maintain contact in other ways;
e)        Whether there are other persons who already fulfil a parental role in             relation to the child;
f)         Any known views of the child (with those views being given due                    weight in accordance with the age and maturity of the child);
g)        Evidence that the non-citizen has abused or neglected the child in   any way, including physical, sexual and/or mental abuse or neglect;                    and
h)        Evidence that the child has suffered or experienced any physical or             emotional trauma arising from the non-citizen’s conduct.
In this case, the only minor child identified by the Applicant whose interests might be affected by a decision not to revoke the cancellation of the Applicant’s visa is the infant child of the Applicant’s daughter, his grandson. Both of the Applicant’s children have reached maturity.
The Applicant confirmed in his evidence that he has never seen his grandson, and the child is not even identified by name in his principal witness statement.[18] The Applicant has not seen his daughter, the child’s mother, since 2001 when she was 13 years old.[19]
[18] Exhibit A1.
[19] Exhibit A1 at [4].
At this stage the Applicant has played no role in the life of his grandson, although in his oral evidence the Applicant expressed a desire to establish a relationship with his family at some stage in the future. The Applicant did not outline any definite plan to establish contact and conceded that he has taken no steps to do so in recent years.
The Tribunal accepts that it could be in the best interests of the grandson to have the opportunity to connect with his grandfather and that this consideration weighs in favour of revocation. However, given the circumstances, the Tribunal gives this consideration little weight.
Expectations of the Australian Community
Paragraph 13.3(1) of Part C of the Direction provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation 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 hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The majority of the Full Court of the Federal Court has explained that paragraph 11.3 which mirrors the wording of paragraph 13.3:
…should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
The question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion.[20]
[20] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75]-[76].
The Tribunal accepts that the Applicant has acted contrary to the expectations of the Australian community by failing repeatedly to obey Australian laws while in Australia.
The Applicant’s criminal history reveals a long-standing disregard for the laws of Australia.
The Tribunal finds that this consideration weighs substantially in favour of not revoking the Applicant’s visa cancellation.
OTHER CONSIDERATIONS
Paragraph 14 of Part C of the Direction requires that other considerations be taken into account, where relevant.These considerations include (but are not limited to):
(a)international non-refoulement obligations;
(b)strength, nature and duration of ties;
(c)impact on Australian business interests;
(d)impact on victims; and
(e)extent of impediments if removed.
International non-refoulement obligations
A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Paragraph 14.1 of Part C of the Direction sets out the principles to be applied in considering claims which may give rise to international non-refoulement obligations. In this case the Applicant has not raised any such claim.
The strength, nature and duration of ties
Paragraph 14.2 of Part C of the Direction provides:
(1)       The strength, nature and duration of ties to Australia. Reflecting the    principles at 6.3, decision-makers must have regard to:
a)        How long the non-citizen has resided in Australia, including whether   the non-citizen arrived as a young child, noting that:
i.         less weight should be given where the non-citizen began                    offending soon after arriving in Australia; and
ii.        more weight should be given to time the non-citizen has   spent contributing positively to the Australian community.
b)        The strength, duration and nature of any family or social links with                Australian citizens, Australian permanent residents and/or people   who have an indefinite right to remain in Australia, including the   effect of non-revocation on the non-citizen’s immediate family in   Australia (where those family members are Australian citizens,   permanent residents, or people who have a right to remain in   Australia indefinitely).
The Applicant arrived in Australia at the age of 32 in December 1996 and apart from two brief return visits to India has resided continually in Australia since then. He has immediate family in Australia but is divorced from his wife and has not seen his two children since 2001. He worked in temporary and irregular employment from 1996 until 2008, but he has not been in paid employment since 2008. Prior to his incarceration he received government support in the form of a disability support pension. He lives in rented accommodation and there is no evidence that he has any significant assets.
He has three long standing friends who all express genuine affection and concern for the Applicant and he relies on them for emotional and practical support. He provides assistance to his friends by working in their businesses on a voluntary basis, although this involvement appears to be more for the Applicant’s benefit than for the business.
The Applicant also does some voluntary work on the weekends at his local Sikh Temple. The Tribunal concludes from these facts that the Applicant has ties to Australia and that he regards Australia as his home, although his ties are not reflective of a strong tangible engagement with the broad Australian community. His relationship would be more accurately described as dependant.

The Tribunal has no doubt that the Applicant’s three friends, Mr Singh, Mr Fernandez and Mr Dawer, would be adversely affected by a non-revocation decision. Each of them demonstrated in their evidence that they care for and support the Applicant and would fear for his future if he were to return to India. There is no evidence that the Applicant’s former wife and (now adult) children would be adversely affected by non-revocation. They have been estranged from him for almost 20 years.
The Tribunal is satisfied that the Applicant’s ties to Australia weigh in favour of revocation but the weight to be given to this factor is reduced by the fact that the Applicant began offending in 1998 soon after arriving in Australia in December 1996. The evidence does not show that the Applicant has made any significant positive contribution to the Australian community such as would off-set the negative effect of his early offending. Accordingly given the limited nature of the Applicant’s ties to Australia and the negative effect of his early offending, the Tribunal gives only limited weight to this factor in assessing whether there is another reason to revoke the cancellation of his visa.
Impact on Australian business interests
Paragraph 14.3(1) of Part C of the Direction provides:
Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no evidence in this case that the revocation of the Applicant’s visa could have an impact on Australian business and especially the delivery of a major project or an important service.
Impact on victims
Paragraph 14.4(1) of Part C of the Direction provides:
Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
There is no evidence as to any impact on a victim of the Applicant’s criminal behaviour of a decision not to revoke the cancellation of his visa.
The Tribunal accepts that there would be an impact on the three witnesses called by the Applicant, as members of the Australian community, if the cancellation of the Applicant’s visa is not revoked. As friends of the Applicant they would be concerned and upset if the Applicant could not stay in Australia.
The Tribunal acknowledges that this consideration weighs in favour of revocation but gives it little weight.
Extent of impediments if removed
Paragraph 14.5 of Part C of the Direction provides:
(1)       The extent of any impediments that the non-citizen may face if removed   from Australia to their home country, in establishing themselves and   maintaining basic living standards (in the context of what is generally   available to other citizens of that country), taking into account:
a)        The non-citizen’s age and health;
b)        Whether there are substantial language or cultural barriers; and
c)        Any social, medical and/or economic support available to them in   that country.
The Applicant is 56 years old. He came to Australia when he was 32 years old. He last visited India in 2002. He has no immediate family or friends living in India, although he has extended family including several cousins but he has not had contact with any of them since coming to Australia in 1996.
Health Services
The evidence establishes that the Applicant has significant health issues, although considered objectively, the evidence does not fully support the extent of the disability claimed by the Applicant. His GP has diagnosed the following conditions: depression, type 2 diabetes, hypercholesterolaemia, hypertension and cervical spondylosis.

In addition, the Applicant claims to have a vision impairment in his right eye.
The Applicant’s conduct over a long time has adequately demonstrated that he has a problem with excessive alcohol consumption, however his underlying mental health condition has not been fully diagnosed by an appropriately qualified medical practitioner. Mr Mattom’s report of 28 June 2018[21] suggests that he was diagnosed with reactive depression and anxiety by his GP, but Dr Saluja offered only a working diagnosis of alcohol dependence and PTSD in his brief report of 2 June 2018. Dr Eugenie Tuck, the Director of Medical Services at Port Philip Prison, reported that when last reviewed by a consultant psychiatrist in January 2004, there were no symptoms of psychiatric illness that were evident.[22]
[21] G Documents at p.92.
[22] G Documents at p.52.
While the Applicant’s cervical spondylosis is confirmed by radiological examination,[23] the extent of the Applicant’s disability resulting from it is uncertain. In this regard the Tribunal notes the Applicant’s own evidence[24] that while in prison and detention he has become actively involved in playing sports including basketball, tennis and cricket and working out in the gym. The Applicant also stated that he has improved his diet in detention and his diabetes has got relatively better than when I first came to prison.
[23] Exhibit A2.
[24] G Documents at p.118.
As to the vision impairment, the report of Dr Chen of 20 March 2020[25] was that the Applicant had good visual acuity of 6/9 in each eye and no treatment was required.
[25] Exhibit A3.
Notwithstanding the questionable extent of the Applicant’s actual limitations apparent from this evidence, the Tribunal accepts that the Applicant has significant health issues which require ongoing treatment.
The DFAT Country Information Report for India provided by the Respondent indicates that:
India’s health system faces a number of challenges including a diverse health profile, an acute shortage of infrastructure and lack of skilled health sector workers. A large disparity exists between the services and health outcomes in each state and between urban and rural areas…
Since 2017, the Indian government has turned its attention to increasing health spending, improving the availability and efficiency of services and allowing individual states….more autonomy to implement health programs. In its new National Health Policy 2017, the government set a goal of increasing public health spending to 2.5 per cent by 2025. More recently, the government launched a revamped national insurance scheme, Ayashman Bharat, a program to improve the primary health care system, as part of a commitment to move India towards a universal health care system.
The Report also notes that access to mental health care is difficult and patients are subject to stigma and discrimination. However, some reform has been made with the passage of the Mental Health Care Act (2017) which seeks to change the fundamental approach to mental health issues including decriminalising some aspects of mental health such as attempted suicide by mentally ill persons and moving to a patient-centric health care model.
The Tribunal is satisfied that there are substantial limitations in the health care services available in India which would impose a significant impediment for the Applicant in establishing himself and maintaining basic living standards if he were to be deported to India.
Employment Prospects
The DFAT Country Information Report states that India has one of the world’s fastest growing economies with an annual GDP growth of 6.7% in 2017. The total unemployment rate is 3.4%, although many people are employed in the informal sector where wages are low and there is low job and income security.
The Applicant is an intelligent person. He speaks fluent Hindi and English and has been educated to a tertiary level. He was awarded a Bachelor of Science degree in 1985.

He has 12 years’ experience as a salesperson in India before coming to Australia and has had experience as a casual employee in call centres and in other semi-skilled jobs, such as a driver and supermarket worker in Australia. He has also performed office work on a voluntary basis for Mr Singh in his business[26] and Mr Fernandez attested to his computer-skills. Taking this into account the Tribunal is satisfied that the Applicant would have some prospect of obtaining employment in India. His language skills and experience in Australia may provide some advantages for him.
[26] Exhibit A4.
However, there are significant factors which would impede his ability to secure employment. He has a poor employment record. He has not used his degree since graduating. He has not worked in paid employment since 2008 and his work experience before that lacks consistency. He has an extensive criminal record. He is 56 years of age and has physical and mental health problems. In addition, he has no contacts or network in India.
On balance the Tribunal is satisfied that the Applicant is likely to have difficulty in finding paid employment in India.
The Respondent conceded that there are little or no unemployment benefits available to a person starting out in the workforce in India. The principal form of unemployment relief is a self-funded insurance arrangement where employers and employees contribute a percentage of the employee’s wages to secure insurance cover in the event of unemployment. The Applicant could not access such a scheme until he secured employment leaving him with no protection if he cannot secure employment upon arrival in India.
Considering all of these factors and the Applicant’s vulnerability due to his physical and mental health issues, the Tribunal is satisfied that it is likely he would struggle to establish himself and maintain basic living standards (in the context of what is generally available to other citizens) if he returned to India. This consideration weighs in favour of revocation, and the Tribunal gives it substantial weight.
CONCLUSION
The Applicant presented as an intelligent and articulate person, but with clearly evident vulnerability. He has been fortunate to have had the support and friendship of Mr Singh, Mr Fernandez and Mr Dawer who all gave evidence on his behalf. The Applicant clearly looks to them for support and in turn each of them gave impressive evidence as to their willingness to selflessly support the Applicant if he is released into the community again.
The Applicant has a long and serious criminal history, but he is not an evil man. He has had a troubled life and has been affected by mental illness which has contributed to his alcohol abuse, which has in turn been the catalyst for much of his offending. However, it is not for the Tribunal to determine whether the Applicant is of good character for the purposes of s 501 of the Act. That determination is made by operation of the Act which effectively deems him to have failed the character test by reason of his conviction and subsequent imprisonment for 18 months in March 2019.[27]
[27] A person does not pass the character test under s.501(6)(a) if they have a substantial criminal record, which is defined in s.501(7)(c) to include that the person has been sentenced to a term of imprisonment of 12 months or more.
The issue before the Tribunal is whether there is a reason other than the person’s character which would warrant revoking the cancellation of the Applicant’s visa.

Much was made in the Applicant’s submissions and in the evidence of his witnesses of the effect of the Applicant’s removal to India if his visa remains cancelled. The Tribunal has no doubt that the Applicant’s self-interest clearly lies in remaining in Australia where he has the support of his friends and the benefit of the social welfare and health care systems available to him in Australia. However, the Tribunal’s task is to decide whether there is another reason which would justify revoking the cancellation of his visa having regard to the various matters set out in the Direction.
In Gaspar v Minister for Immigration and Border Protection,[28] North ACJ elaborated on how to approach the exercise of the discretion under s 501CA(4)(b)(ii):
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view.
[28] (2016) 153 ALD 337 at [38].
Factors Against Revocation
The Tribunal is satisfied that the Applicant’s past criminal offending was serious and there is significant risk that the Applicant will commit further offences of a serious nature or engage in other serious conduct if released into the Australian community. This represents a risk to the welfare of the Australian community. The welfare of the Australian community is a primary consideration under Paragraph 13.1 of the Direction and the risk of re-offending weighs heavily in favour of not revoking the cancellation of the Applicant’s visa.
Similarly, the expectations of the Australian community are a primary consideration. The Applicant has acted contrary to the expectations of the Australian community by failing repeatedly to obey Australian laws while in Australia and this consideration weighs substantially in favour of not revoking the Applicant’s visa cancellation.
However, in assessing the overall question of whether there is another reason to revoke the cancellation of the Applicant’s visa, the Tribunal is not necessarily bound by the expectations of the Australian community. The Court noted in FYBR v Minister for Home Affairs[29] that the paragraph:
…recognises that the government’s assessment of the expectations of the Australian community is that a non-citizen who has committed a serious offence should not be granted a visa. Strictly speaking, it is not correct to say that the expectation is one to which the Tribunal “must give effect”. The Tribunal must in all cases determine whether it is appropriate to refuse to grant the visa. In an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be. In such a case, the decision-maker would depart from the relative ascription of weight for which cl 8(4) “generally” provides, as he or she is permitted to do.
[29] [2019] FCAFC 185 at [79].
In weighing this primary consideration, the Tribunal is mindful that the Applicant’s offending was affected by his underlying mental health condition and his inability to control his excessive consumption of alcohol. Whatever the exact nature of the Applicant’s mental health condition, it is clear that he is an insecure and vulnerable person who acted primarily in response to his own insecurities. Aside from the two assault offenses against his ex-wife prior to 2005, both of which attracted modest penalties, his other offending did not exhibit animosity toward any other member of the Australian community.
These factors do tend to diminish the weight which should be attributed to the primary considerations weighing in favour of cancellation, but the principles in paragraph 6.3 of the Direction make it clear that to remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community, and a non-citizen who has committed a serious crime should generally expect to forfeit the privilege of staying in, Australia.
Having regard to these principles the Tribunal gives substantial weight to the expectations of the Australian community which favour non-revocation as a primary consideration.
Factors in favour of Revocation
The best interests of the Applicant’s grandson weigh in favour of revocation, but the Tribunal gives this consideration little weight, notwithstanding that the best interests of minor children is a primary consideration.
The Applicant’s ties to Australia weigh in favour of revocation but because of the limited nature of the Applicant’s ties to Australia and the negative effect of his early offending, the Tribunal gives only limited weight to this factor.
The Tribunal accepts that there would be an impact on the three witnesses called by the Applicant if the cancellation of the Applicant’s visa is not revoked, which weighs in favour of revocation but this consideration attracts little weight.
The principal consideration weighing in favour of revocation is the impediment the Applicant would suffer in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens) if he returned to India.

The Tribunal does not underestimate the difficulties the Applicant would be liable to face if he returned to India. He is a vulnerable person emotionally and physically. He has no assets or personal contacts in India and he has significant limitations on his ability to obtain employment. The Applicant’s future welfare weighs heavily on the Tribunal and it gives this consideration substantial weight.
Conclusion
Subparagraphs 8(3) to (5) of the Direction provide:
(3)       Both primary and other considerations may weigh in favour of, or against,              refusal, cancellation of the visa, or whether or not to revoke a mandatory   cancellation of a visa.

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

(5)       One or more primary considerations may outweigh other primary    considerations.
In Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 Colvin J stated at [23]:
...Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non-refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
Justice Colvin’s assessment regarding the various considerations in Direction 65 apply equally to the considerations in the Direction.
Weighing up each of these factors and taking account of the fact that the two factors against revocation are primary considerations, the Tribunal is satisfied, on balance, that the factors which favour revocation do not outweigh the other factors. As a consequence, the Tribunal is not satisfied that there is another reason to revoke the cancellation of the Applicant’s visa pursuant to s 501CA(4)(b)(ii) of the Act.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 150 (one hundred and fifty) paragraphs are a true copy of the reasons for the decision herein of Member R West

........................[sgd]................................................
Associate
Dated: 3 August 2020

Dates of hearing: 22 and 23 July 2020

Applicant: By videoconference

Advocate for the Respondent: Mr David Brown

Solicitors for the Respondent: Australian Government Solicitor

Dates of hearing:	22 and 23 July 2020
Applicant:	By videoconference
Advocate for the Respondent:	Mr David Brown
Solicitors for the Respondent:	Australian Government Solicitor