Lunavat and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2020] AATA 1329

Lunavat and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1329 (15 May 2020)

Division:GENERAL DIVISION

File Number(s):      2020/1231

Re:Naysar Lunavat

APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd  

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member

Date:15 May 2020

Place:Sydney

The Tribunal sets aside the decision of the delegate dated 25 February 2020 and in substitution decides not to refuse to grant Mr Lunavat an Employer Nomination Scheme (Class EN) (subclass 186) under subsection 501(1) of the Migration Act 1958 (Cth).

................[sgd]...............................................

Mr S Evans, Member

CATCHWORDS

MIGRATION – refusal of Employer Nomination Scheme (Class EN) (Subclass 186) Visa – whether applicant fails the character test – whether there is any risk of the applicant engaging in future criminal conduct – Direction No. 79 – applicant found to meet the character test – discretion to refuse the visa not enlivened - decision under review set aside and substituted

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth), s 18B

Migration Act 1958 (Cth) ss 499(2A), 500(1), 501(1), 501(6)

CASES

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033

QKVH and Minister for Home Affairs (Migration) [2018] AATA 1855

Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10

SECONDARY MATERIALS

Ministerial Direction No. 79 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

REASONS FOR DECISION

Mr S Evans, Member

15 May 2020

1. The applicant in this matter is Naysar Lunavat.  Mr Lunavat seeks review of a decision made by a delegate of the Minister (“the Respondent”) to refuse to grant him a Subclass 186 Employer Nomination Scheme (Permanent) (Class EN) visa pursuant to subsection 501(1) of the Migration Act 1958 (Cth) (“the Act”). 

2. Mr Lunavat applied for the visa on 30 June 2017. On 19 September 2019, he was issued with a notice advising him of the intention to consider refusal of his visa application under subsection 501(1) of the Act. On 17 October 2019 Mr Lunavat provided a response to the notice of intention to consider refusal of his visa application. On 25 February 2020, a delegate decided to refuse Mr Lunavat’s application for the visa, finding that he did not pass the character test as set out in subsection 501(6) of the Act. In particular, the delegate found that Mr Lunavat failed to meet subparagraph 501(6)(d)(i) of the Act, as there was a risk that Mr Lunavat would engage in criminal conduct in Australia if allowed to remain.

3. On 2 March 2020 the Administrative Appeals Tribunal (“the Tribunal”) received an application from Mr Lunavat lodged under paragraph 500(1)(b) of the Act seeking review of the decision to refuse to grant his visa.

4. The hearing in this matter was held on 30 April 2020. Mr Lunavat was represented by counsel. All parties appeared via video link or telephone in accordance with the COVID-19 Special Measures Practice Direction given under section 18B of the Administrative Appeals Tribunal Act 1975 (Cth). 

   BACKGROUND

5. The following factual background is drawn substantially from the written submissions of the parties together with the direct evidence provided to the Tribunal. 

6. Mr Lunavat is a 38 year old citizen of India who came to Australia on 4 March 2006 as the holder of a Student (Class TU) (subclass 572) visa. On 3 March 2015 he was granted a Skilled (Subclass 457) visa.  On 30 June 2017 Mr Lunavat applied for an Employer Nomination Scheme (Class EN) (subclass 186) visa (“the visa”) which is a permanent visa and the subject of this application.  

7. In addition to his degree in pharmaceutical sciences, Mr Lunavat holds a Master of Commerce and a Master of Biotechnology which were obtained in Australia. 

8. Mr Lunavat resides in Sydney with his wife Prinita Zambad and their daughter.  The couple married in January 2011 and have two children together – a seven year old son and a daughter who is five.  Their son currently resides in India with Mr Lunavat’s parents. 

   LEGISLATIVE FRAMEWORK

9. The issue to be considered is the application of the character test and assessment of risk in relation to future conduct under paragraph 501(6)(d) of the Act.

10. Subsection 501(1) of the Act gives the Minister the discretionary power to refuse to grant a visa if a visa applicant is unable to satisfy the Minister that he or she passes the character test. The term character test is defined in subsection 501(6) of the Act. Relevantly for this matter, subsection 501(6) provides that:

    (6)       For the purposes of this section, a person does not pass the character test if:

    …

    (c)       having regard to either or both of the following:

    (i)        the person’s past and present criminal conduct;

    (ii)       the person’s past and present general conduct;

    the person is not of good character; or

    (d)       in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:

    (i)        engage in criminal conduct in Australia; or

    …

11. If an applicant is found not to pass the character test, the discretion to refuse the visa must be considered. Under subsection 499(2A) of the Act, decisions under the Act must be made in compliance with any written directions given by the Minister under the Act. In considering a refusal under section 501 of the Act, the decision maker, including the Tribunal, must have regard to Direction No 79 – Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (“the Direction”). 

    Ministerial Direction No. 79 (“the Direction”)

12. Section 2, paragraph 6 of Annex A of the Direction provides guidance on the application of the character test and assessment of risk in relation to future conduct under paragraph 501(6)(d) of the Act. Paragraph 6(2) provides:

    The grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or remain in Australia would engage in conduct specified in 501(6)(d) of the Act.

13. Paragraph 6(3) provides:

    It is not sufficient to find that someone has engaged in conduct specified in paragraph 501(6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act.

14. Where discretion to refuse a visa on character grounds is enlivened, the decision maker must take into account the ‘primary’ and ‘other’ considerations in Part B of the Direction, in deciding whether to refuse a non-citizen’s visa. 

15. The primary considerations as set out in paragraph 11(1) of the Direction are as follows: 

    (a)protection of the Australian community from criminal and other serious conduct;

    (b)the best interests of minor children in Australia; and

    (c)expectations of the Australian community. 

16. The other considerations which must be taken into account where relevant are outlined at paragraph 12(1) of the Direction.  These considerations are: 

    (a)international non-refoulement obligations;

    (b)impact on family members;

    (c)impact on victims; and

    (d)impact on Australian business interests.

    ISSUES BEFORE THE TRIBUNAL

17. The two central issues presently before the Tribunal are:

    (a) whether Mr Lunavat passes the character test in subsection 501(6) of the Act; and

    (b)  if Mr Lunavat does not pass the character test, whether the Tribunal should exercise its discretion to refuse the visa.

    EVIDENCE

    Mr Lunavat’s offending

18. The circumstances of Mr Lunavat’s offending are detailed in documents before the Tribunal, and the following description relies heavily on the Amended Facts Sheet provided to the Hornsby Local Court with consideration of the original NSW Police Facts Sheet relating to the incident. 

19. Mr Lunavat and Nikita Patel were friends who worked together and had shared accommodation for five years.  At 12:30 in the afternoon on 19 November 2011 they were in their lounge room watching television.  Ms Patel had asked Mr Lunavat to assist with a work-related favour which he refused and they started arguing. Mr Lunavat became increasingly angry and commenced swearing at Ms Patel, before standing up from the couch he was seated on and aggressively approaching Ms Patel who was seated on the opposite side of the room.

20. Mr Lunavat stood over Ms Patel and leaned in towards her whilst she was still seated. He then punched Ms Patel on the right side of her back a number of times. Ms Patel was terrified and started screaming whilst she was being punched. Ms Patel attempted to push the applicant away, and in attempting to do so scratched his face, and dragged her hands down his chest.

21. Mr Lunavat then pushed Ms Patel off the couch where she had been seated causing her to fall to the floor, landing on her hands and knees. He then stood over her and punched her in the upper back. Mr Lunavat then punched Ms Patel to the rear of the head. Mr Lunavat then sat back on the couch and Ms Patel began punching and kicking him while he was sitting down. Mr Lunavat then punched Ms Patel again on the back. Ms Patel called her husband who was in India stating that Mr Lunavat had badly beaten her and that she was going to report it to the police. 

22. Mr Lunavat then called his mother on his mobile phone. His mother requested to speak with Ms Patel, and Ms Patel told her that Mr Lunavat had hit her first and she swore at him. Mr Lunavat then slapped Ms Patel in the face.

23. After the incident and on the same day, Mr Lunavat departed Australia for India.  On 29 November 2011 NSW Police obtained an interim Apprehended Violence Order against Mr Lunavat.  Mr Lunavat returned to Australia on 30 November 2011 and he attended Chatswood Police Station on 4 December 2011.  

24. On 14 February 2012 Mr Lunavat pleaded guilty and was convicted in the Hornsby Local Court of Assault Occasioning Actual Bodily Harm (Domestic Violence) and was sentenced to a good behaviour bond for 12 months. On the same day a Final Apprehended Violence Order was made against Mr Lunavat for a period of 12 months.

25. In addition, Mr Lunavat also has a number of driving related offences which are listed below: 

Date	Details	Penalty
08/02/2017	Drive with unrestrained passenger in the car	$325 fine, 3 demerit points
08/02/2017	Disobey left turn / right turn / no turns sign at intersection	$253 fine, 2 demerit points
13/03/2015	Make unlawful U-turn	$242 fine, 2 demerit points
27/10/2014	Driver use mobile phone when not permitted	$311 fine, 3 demerit points
16/06/2014	Disobey no parking sign (school zone)	$169 fine, 2 demerit points
3/12/2012	Exceed speed limit by not more than 10 km/h while driving a motor vehicle (camera detected)	$105 fine, 1 demerit point
27/03/2012	Disobey no parking sign (school zone)	$147 fine, 2 demerit points
25/03/2012	Exceed speed limit by more than 10 km/h but not more than 20 km/h while driving a motor vehicle (camera detected)	$216 fine, 3 demerit points

Evidence of Mr Lunavat

1. In his evidence before the Tribunal Mr Lunavat accepted the details of his offending as set out above.  

2. He provided background and context to the offending to the Tribunal.  Mr Lunavat said that he met Ms Patel the same year he arrived in Australia through mutual friends.  They began talking and realised that they were both studying at the same university.  Sometime later they were both looking for somewhere to live and decided to share an apartment together with two other friends.  He said that he began to view Ms Patel as his younger sister and treated her accordingly.  They became close and Ms Patel and her husband had attended Mr Lunavat’s wedding earlier in 2011.  He confirmed that he had a good relationship with both Ms Patel and her husband. 

3. At the time of the offending Mr Lunavat was sharing a house with just Ms Patel and her husband, who was in India at the time.  Mr Lunavat had just completed a master’s degree and was doing some research which proved unsuccessful so he continued studying whilst working for a supermarket chain.  He says that Ms Patel could not complete her accounting at the university she was at and he was helping her shortlist another college.  Mr Lunavat was also supporting Ms Patel financially and helped pay her tuition fees as her husband was not in Australia. 

4. He was asked about his return to India on the day of the assault.  He said that he left because he and Ms Patel had lived together for so long that he did not have anybody else who would support him or who we could talk to.  Being close to his mother, and needing someone to talk to, he said he thought it best to go to India and talk through what had happened with his family.  He said that at the time he was generally feeling isolated from his family and concerned about his future. 

5. Mr Lunavat confirmed that the trip was unplanned and that following the assault he went to the airport and took the next flight available.  There was a long transit time in Malaysia and during the trip he realised that the way he had reacted was not right and out of character.  He told the Tribunal that he was in India only ten days before returning to Australia. 

6. Asked what happened during his time in India, he said that his parents were surprised that he was there because it was not a planned visit.  He said they knew about the assault because he had called his mother during the incident, but that they were shocked at his appearance because he had scratches on his face from Ms Patel.  He said that whilst he was in India he spoke to his parents and his wife about the assault.  He also spoke to Ms Patel and her husband about what had happened.  He testified that whilst in India both he and Ms Patel came to understand that they had allowed a trivial or unimportant disagreement to escalate and he had overreacted physically. 

7. It was put to Mr Lunavat that returning to India shortly after the assault was an attempt to avoid responsibility or punishment for his actions.  He maintained that he wanted to talk to his family and notes that he voluntarily returned to Australia shortly after.  He confirmed that when he returned to Australia he and Ms Patel continued living together and their relationship and living arrangements went back to how they had been prior to the assault. 

8. Mr Lunavat said that Ms Patel and her husband attended court with him, that she still thinks of him as her brother and that they are still a part of each other’s lives. 

9. In a written statement dated 6 April 2020, Mr Lunavat states that he is ashamed of his actions on the day of the assault.  He admits to hitting Ms Patel and he knows that this type of behaviour is never acceptable and that he should have “cut the conversation and walked away from the situation and discuss things with Nikita after they had both calmed down”.  He writes that he will always regret treating his friend this way. 

10. Mr Lunavat told the Tribunal that his life has become a lot more settled now.  His wife came to live with him in Australia in 2012 and she has completed a Master of Accounting and has secured a full time position in her field.  Mr Lunavat does community work at the Sydney Hindu Temple every Monday and Tuesday and he also goes there to meditate.  He says he donates food at the Temple.

11. Mr Lunavat is employed full time and also has business interests in Australia.  He has a 25% share in a building company and he is a 50% partner in another enterprise which imports building supplies.  He says his companies employ two people full time. 

12. Mr Lunavat holds a view that it is his responsibility to make sure the story of his life is good and he hopes to pass these values on to his children.  He says that he has his family here and he does not feel the stress and pressure that he did at the time of the offence, when his life was so uncertain.  He says that in the nine years since the incident he has grown and matured.  Mr Lunavat has not had any further incidents of the nature of the offending and he stated that he will never do so again.  Furthermore, he said that the refusal of his visa had demonstrated to him how such an incident could significantly affect his and his family’s future in Australia and that is not something that he wants to put at stake. 

13. Should this application be successful, Mr Lunavat intends that his son will join the rest of the family in Australia before starting school.  He says that his daughter has assimilated in Australia and he expects that his son will do the same.  If he is unsuccessful in his application, Mr Lunavat is concerned that his wife will not be able to work in India because he says Indian culture is “very old school”.

14. Mr Lunavat was asked about his traffic offences, in particular driving with an unrestrained passenger in February 2017.  He explained that on this occasion the car baby seat was strapped but the police officer who stopped him thought that the strap was not secured tightly enough. Mr Lunavat explained that he was rushing because he was driving his wife to the train station and they were running late for her train, and he was stopped by police and fined.

15. In reference to his failure to declare that he had been convicted of a crime or an offence when he applied for his 457 Visa, Mr Lunavat explained that he mentioned it to his migration lawyer prior to the visa application, and his lawyer advised that as he had served his bond it was not necessary to declare the conviction.

16. He said that when he received the AFP National Police Certificate (“the NPC”) his migration lawyer was “a bit shocked” that the 2012 conviction was still reflected on Mr Lunavat’s AFP record and that he subsequently amended the application.  Mr Lunavat said that he now understands that the conviction needs to be acknowledged on his departure cards and in any future visa applications.

    Evidence of Prinita Zambad

17. Ms Zambad confirms in a written statement dated 23 April 2020 that she and Mr Lunavat were married in January 2011 and have two children together.  She said that whilst their son is currently living in India it is their intention to bring him to Australia if Mr Lunavat is granted the visa.  Ms Zambad currently holds a bridging visa because her and her daughter’s immigration status is dependent on Mr Lunavat’s visa application. 

18. Ms Zambad provided a candid account of Mr Lunavat’s offending to the Tribunal.  Consistent with Mr Lunavat’s account, she testified that she was in India at the time of the assault and she found out about it when her husband travelled to India.  She said that he had scratches on his face when she saw him.  She recalled that she, like the rest of his family, was supportive of him returning to Australia in order to deal with the consequences of his actions. 

19. Whilst conceding that her husband’s offending was very serious and an “unacceptable overreaction”, Ms Zambad notes in her statement that it happened nine years ago and she is of the view that Mr Lunavat “is not the same person”.  She says he is a responsible person with an entrepreneurial approach who has invested in two businesses as well as continued to be employed up until his visa expired. 

20. In her statement, Ms Zambad writes that Mr Lunavat has never been violent towards either her or the children, and that she has never been threatened by her husband or been in fear of him.  Ms Zambad confirmed at the hearing that she had never seen her husband react in a fashion comparable to that which was described during the assault. 

21. Ms Zambad told the Tribunal that she and Mr Lunavat were building a good life for their family in Australia, noting that they both have professional careers.  She told the Tribunal that she has worked hard to establish her career and always been supported by her husband in doing so.  She expressed concern that if she were to return to India she would be forbidden from pursing her own career because of cultural expectations and particularly the traditional views of Mr Lunavat’s parents.

1. She says that if Mr Lunavat is required to leave Australia she will return to India with him.  Her current role started as a one-year contract and based on her performance she was made a full-time permanent employee.  Ms Zambad does not believe she would been able to achieve anything like this level of professional success in India.

2. Under questioning by the Respondent’s representative, Ms Zambad confirmed that she was in India between 2015 and 2017.  She told the Tribunal that when she left Australia for India she was three months pregnant but due to the illness of her father she stayed for longer than expected and that the couple’s daughter was born there.

   Evidence of Nikita Patel

3. Ms Patel was the victim of the assault.  She has provided a statement to the Tribunal and appeared by telephone to give evidence on behalf of Mr Lunavat at the hearing.

4. Ms Patel said that the assault was out of character for Mr Lunavat.  She testified that since meeting him in 2006, he had helped her in many ways including assisting in her job search, helping her with accommodation and to work through issues with her parents.  Ms Patel described Mr Lunavat as being a humble, community oriented person who has played a major role in her life. 

5. In reference to the day of the assault Ms Patel she said that she had “never seen him like this before” and has never seen him like this since.  In questioning she confirmed that the assault came as a surprise to her and that she was scared because she had never seen him behave that way before. 

6. In her statement, Ms Patel confirms that she scratched, punched and kicked Mr Lunavat as she tried to push him away from her.  She writes that both her and Mr Lunavat “acted in a way that was out of character due to the stress and pressure we were under.  We have never had a fight like this before, and we would never fight like this again.  It was just a combination of stressful experiences, being in a foreign country and not being settled or feeling secure, not having our families with us that lead us to this situation”.

7. Recalling the specifics of that day, Ms Patel told the tribunal that when the assault ended she called her husband in India.  Ms Patel said that as her husband was not present he had no idea what was happening.  He advised her that if she was scared she should call the police, which is what she did. 

8. In her statement, Ms Patel writes that having called the police, she did not wish for the matter to proceed any further.  She did not want criminal charges to be brought against Mr Lunavat, but “the police continued with the charges”.  She writes “it was also the police that applied to the apprehended domestic violence order, not me”.  At the hearing she said that after speaking to Mr Lunavat’s mother and gaining an insight into how he was feeling, she went to the police station to have the complaint withdrawn but was told it would continue to progress regardless.

9. Ms Patel was asked about what she was specifically referring to when she spoke of the stress that her and Mr Lunavat were experiencing at the time of the assault.  She said that Mr Lunavat was frustrated because he was having difficulties finalising the documentation in order for his wife to come to join him in Australia.  In addition, she was asking him “back to back” to help her with her own visa issues and that is how they “ended up yelling at each other”. 

10. She expressed regret because up to that point they had always taken care of each other.  Ms Patel described her and Mr Lunavat as being “helping hands” to each other. 

11. She told the Tribunal that her and Mr Lunavat are still good friends and mix regularly with their respective families.  They meet on special occasions and celebrations and see each other at their Temple.  They also speak to each other once a week on the phone.  She opined that there was “no way” that Mr Lunavat would ever do something like this again. 

    Evidence of Roula Dagher

12. Ms Dagher is the general manager of the human resources company where Mr Lunavat is employed as a human resources adviser.  She provided a written statement to the Tribunal and evidence by telephone during the hearing. 

13. Ms Dagher met Mr Lunavat after advertising for his position in June 2014.  She confirmed that she did not know him prior to the interview.  She writes that his unique educational background and other skills make him a good fit for the organisation’s needs. He impressed so much at the interview that they decided to offer him the role straight after the second interview. 

14. Ms Dagher writes that over the years Mr Lunavat has become a crucial employee for their business, who has built strong relationships with clients and delivered a significant revenue for the company which she estimates to be valued at “millions of dollars”. 

15. She writes that she was surprised to learn about Mr Lunavat’s offending.  She has observed a high standard of behaviour towards colleagues and clients from Mr Lunavat over the years in which they have worked together.  Ms Dagher’s experience has been of a humble and respectful professional.  She noted that throughout his employment with the company he “has never given us a reason to feel unsafe or threatened by his conduct or behaviour”. Ms Dagher’s oral evidence at the hearing was consistent with the evidence provided in her written statement.

    CONSIDERATION

    Does Mr Lunavat pass the character test

16. The Respondent contends that Mr Lunavat fails the character test under paragraphs 501(6)(c) and (d) of the Act.

17. Paragraph 501(6)(c) requires consideration be given to an applicant’s past and present criminal conduct and his or her past and present general conduct in determining whether the person is of good character. The Respondent acknowledges, however, that the Tribunal’s review is limited to considering whether Mr Lunavat fails the character test under paragraph 501(6)(d), consistent with the delegate’s decision and consistent with Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033.

18. The first question then to be considered by the Tribunal is whether Mr Lunavat fails the character test under paragraph 501(6)(d) of the Act, which relevantly states:

    (d) in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:

    (i)        engage in criminal conduct in Australia; or

    …

19. Paragraph 6(2) of Annex A to the Direction provides guidance to decision makers on the application of the character test and assessment of risk in relation to future conduct under paragraph 501(6)(d) of the Act. Paragraph 6(2) provides that the ground is enlivened if there is evidence suggesting there is “more than a minimal or remote chance that the person, if allowed to enter or remain in Australia, would engage in [the specified] conduct”. 

20. In considering whether Mr Lunavat fails the character test under paragraph 501(6)(d) of the Act, it is necessary for the Tribunal to consider the term “risk” for the purpose of the section.

21. The Respondent cites Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10 at [44] where J Kerr writes:

    By contrast, s 501(6)(d)(i) now provides an objective test. The statutory criterion required for the current character test to be engaged is that there is “a risk” that, if the person is allowed to enter or remain in Australia the person would engage in criminal conduct in Australia. The application of that criterion requires an evaluative judgment to be made – but it would be inapt to describe that as a subjective test.

22. Relevantly, DP Forgie in QKVH v Minister for Home Affairs [2018] AATA 1855 (“QKVH”) considered this issue, and determined that when considering the word “risk” under subparagraph 501(6)(d)(i), it must be interpreted in the context of the Act and therefore the context of who may and may not come to and/or remain in Australia. She writes at [13]:

    In that context, the word “risk” cannot be seen to mean simply a “chance or possibility” of a person’s engaging in criminal conduct in Australia for to do so would not take account of the realities of everyday life. Take, for example, members of the Australian community who drive a motor vehicle. Even if they have never done so before, there is a chance or possibility that any one of them may have a lapse in concentration or judgment and commit an offence against the road laws of a type for which a conviction may be imposed. That chance or possibility will, of course, be greater if the person has a history of traffic offences so that the risk of his or her doing so increases. Section 501(6)(d)(i) is not directed to the risk that a person will engage in criminal conduct if allowed to remain in Australia at what might be thought to be a theoretical level. It is directed to an assessment of risk at a level which is, as Direction No. 65 [now Direction 79] says, “… is more than a minimal or remote chance …” of engaging in conduct which is, in this instance, criminal conduct. It cannot be set at a greater level than that for the word “risk” is not qualified by any adjective such as “significant”, “substantial”, “real”, any of which might have done so.

23. Consistent with QKVH, the Respondent submits that the Tribunal need only to be satisfied that the relevant risk of engaging in criminal conduct is more than minimal or remote in order for Mr Lunavat not to satisfy the character test, which the Tribunal accepts. 

24. In considering whether Mr Lunavat passes the character test, it is necessary to take into account all the circumstances of his offending and any other issues which relate to the assessment of the risk that he would further engage in criminal conduct. 

25. As noted by the Respondent, crimes of violence are viewed seriously, and crimes of violence against women are viewed very seriously and the Tribunal agrees.  Ms Patel feared for her safety following the assault as evidenced by the phone call to her husband and report to the police. 

26. Whilst Mr Lunavat and Ms Patel reconciled soon after, and Ms Patel sought to withdraw the complaint, that does not mean that the assault was not serious.  The Tribunal also acknowledges that the incident did not result in a term of imprisonment, but that again does not diminish the seriousness of the offending.  Violence against women must be taken extremely seriously, as outlined in paragraph 11.1.1 of Part B of the Direction.  I note that Mr Lunavat acknowledges the seriousness of the offending in his statement and oral evidence to the Tribunal. 

27. Counsel for Mr Lunavat submit that he passes the character test and note that the delegate of the Minister made no findings in relation to “risk” of likelihood of any further criminal conduct being engaged in by Mr Lunavat.  It is submitted on his behalf that there is “no risk” that Mr Lunavat would engage in criminal conduct if allowed to remain in Australia.  

28. In support of this contention Mr Lunavat’s counsel stated that the context in which the argument with Ms Patel arose and the particular circumstances Mr Lunavat was experiencing at that time are relevant.  Mr Lunavat was in Australia without any family support, experiencing financial pressure and concern for his future.  He was under significant pressure, he was trying to organise for his wife to move to Australia and he was a relatively young man. 

29. Counsel for the Respondent argued that many people experience feelings of uncertainty, financial pressure, personal pressure and stressors but do not offend as Mr Lunavat did.  It was further submitted that it can be anticipated that he will experience such pressures again in the future and his offending has demonstrated he has the capacity to violently offend, which should be accepted as evidence of increased risk.

30. In considering this issue I also note that Mr Lunavat has expressed considerable contrition.  I consider also that this is not a recent approach or one motivated by expedience.  The evidence supports a conclusion that since the offending, he has sought to front up and accept responsibility, and that he has done so consistently.  He told his mother what had happened and his wife.  He called Ms Patel and spoke to her about what had happened between them.  He returned to Australia and reported to the police.  He pleaded guilty to the offending.  In the current application, it was clear from the witnesses, particularly his wife and employer that he had been entirely honest about the assault, and had not sought to downplay or diminish the seriousness of the offending.  

31. Furthermore, his life has moved on and his foundations have grown significantly.  He now has additional support from his wife, who herself is employed and able to contribute financially as well as provide emotional support.  The Tribunal heard from his wife, his employer and indeed Ms Patel and takes into account the references from Mr Lunavat’s Temple – all of whom demonstrated an understanding and support for Mr Lunavat which is evidence of a solid support network. 

32. I also consider that Mr Lunavat has maintained a strong relationship with Ms Patel is significant.  The Respondent contends that it is not incredibly uncommon for a victim to give evidence in support of a person who has been violent in the past.  It is further submitted that there is a family and cultural bond between Mr Lunavat and Ms Patel and her husband and that this is demonstrated by the fact that Mr Lunavat’s mother spoke to Ms Patel shortly after the offending.  I accept this in part, but also consider that in this case the evidence points to a genuine friendship between Mr Lunavat and Ms Patel which extends beyond maintaining cultural and familial expectations.  Ms Patel confirmed their shared community contact through the Temple, but she also detailed their ongoing friendship, socialising and their weekly phone calls. 

33. The Respondent argues that Mr Lunavat has attempted to mitigate the seriousness of his offending by detailing and referencing the personal circumstances that he was facing at the time of the assault.  It is the case that he states that both he and Ms Patel were struggling to find work and under financial pressure and that he was feeling very stressed about his future, but I consider that the evidence suggests that Mr Lunavat has sought to understand his own offending and to explain why it happened.  He has not sought to deflect blame or to downplay the seriousness of what occurred.  It is also of some assurance to the Tribunal that he should show insight into all aspects of his offending. 

34. It is of concern to the Tribunal that Mr Lunavat failed to disclose his criminal conviction to the Department when he made his application for a subclass 457 visa in 2015 and again when he applied for his subclass 186 visa in 2017.  The Respondent submits that these omissions and the failure to disclose his criminal conviction on two incoming passenger cards in 2015 and 2016 is of a nature and seriousness which should be considered by the Tribunal in the context of paragraph 11.1.1 of the Direction, in determining the nature and seriousness of his offending.  

35. In his evidence Mr Lunavat addressed these issues and was cross examined on them.  He conceded that he had marked “no” next to “do you have any criminal conviction/s” on the incoming passenger cards.  However, he had done so in a genuine belief that having served out his good behaviour bond, he was no longer required to do disclose the offence.  More serious but related is the issue of failing to declare his conviction when applying for his 457 visa in 2015.  The Respondent submits that had the Department been aware of the criminal conviction in 2015 it might have resulted in Mr Lunavat not being granted a temporary visa. 

36. Counsel for Mr Lunavat submits that after he received the NPC in August 2017 and it recorded the assault, he took it upon himself to declare it to the Department when he “could have continued to keep it secret” and it “was his own voluntary act which brought this to light”. 

37. Mr Lunavat was cross examined on this issue and testified that he applied for both visas though the same migration lawyer.  He contends that he told lawyer about the offending prior to the first application and he was advised that as he had been sentenced to a 12 month good behaviour bond he was not required to disclose it as a prior conviction on his 2015 application.  He was advised, he said at the Hearing, “if you’ve served your bond and if you don’t have anything or you haven’t done anything after that, that’s fine”. 

38. He claims that his lawyer was “a bit shocked” when the offence was listed on the NPC as he had served his 12 month bond.  He subsequently amended the visa application, which he did on 29 August 2017.  I found Mr Lunavat’s evidence on this matter to be consistent with the facts in regard to this matter.  I place no weight in his favour on his “voluntary act” of bringing the incorrect information to the Department’s attention, as it would be anticipated the inconsistency between his application and the NPC would have been identified by the Department.  I am satisfied however that that the failure to disclose on his visa applications or incoming passenger cards was not an attempt to mislead. 

39. The Respondent submits that Mr Lunavat is “certainly at the low end” but a “real risk” of reoffending on the basis of the nature of his offending. It is submitted that the fact that Mr Lunavat engaged in violent offending against a woman in the recent past in and of itself demonstrates that he has a capacity to violently attack women or other people.  That he has not attacked other people might point to a lower risk of repeat conduct of this nature, but the capacity and therefore risk remains.

40. An assessment report completed by Rory Ford was submitted on behalf of Mr Lunavat.  Mr Ford conducted both the Level of Service Inventory and Dynamic Risk Assessment of Re-entry risk assessments of Mr Lunavat and concluded that Mr Lunavat is at low risk of reoffending.  Of note Mr Ford sees no requirement or benefit in referring Mr Lunavat to any offence-specific or psychological treatment.  He notes that Mr Lunavat has no history of drug or alcohol use and has no mental health history or concerns.  Present are none of the indicators which would be of concern when making an assessment regarding risk of reoffending and I note his report is consistent with the other evidence before the Tribunal.  

41. The Statement of Facts, Issues and Contentions submitted on behalf of Mr Lunavat notes that in addition to not having a criminal history beyond the 2011 assault, there has been no criminal offending in Australia or another country.  In light of this, and that it has been eight years since the offence, the risk of reoffending is low. 

42. I also consider Mr Lunavat’s family circumstances are relevant to this consideration.  Mr Lunavat said that he is dedicated to creating a “good life” for his family.  This sentiment carries some weight as it is supported by building a family home and his strong work ethic which Ms Dagher attested to.  A consistent observation of the witnesses who appeared before the Tribunal was the support that Mr Lunavat provides those who he is close to and the humility with which he conducts himself generally. 

43. Ms Dagher’s statement is dated 25 March 2020, many weeks into the period of economic uncertainty and subsequent job losses instigated by the response to Covid-19.  She writes that her company will “undoubtedly continue to employ” Mr Lunavat should he be granted a visa. 

44. In light of the evidence, which is clear and compelling and not successfully challenged at the hearing, and having regard to the relevant provisions of the Act and the Direction, I am satisfied that Mr Lunavat poses minimal if any risk to the Australian community.

    CONCLUSION

45. For the reasons stated above I am satisfied that the risk of Mr Lunavat reoffending or otherwise engaging in criminal conduct in the future is not more than a minimal or remote risk. Accordingly he does not fail the character test on the basis of subparagraph 501(6)(d)(i) of the Act. Further, I am satisfied that there is no other basis for concluding that Mr Lunavat fails the character test as set out in subsection 501(6) of the Act.

1. Given my conclusion as to this consideration, it is not necessary for the Tribunal to consider the question regarding the exercise of the residual discretion in subsection 501(1) of the Act.

   DECISION

2. The Tribunal sets aside the decision of the delegate dated 25 February 2020 and in substitution decides not to refuse to grant Mr Lunavat an Employer Nomination Scheme (Class EN) (subclass 186) under subsection 501(1) of the Migration Act 1958 (Cth).

I certify that the preceding 93 (ninety-three) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

...................[sgd].............................................

Associate

Dated: 15 May 2020

Date(s) of hearing:	30 April 2020
Counsel for the Applicant:	Mr A Aleksov
Solicitors for the Applicant:	Ms Thompson, Carina Ford Immigration Lawyers
Counsel for the Respondent:	Mr Johnson
Solicitors for the Respondent:	Mr Downie, Minter Ellison