Malhotra and Minister for Immigration, Multicultural and Indigenous Affairs

[2005] AATA 903

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 903

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/429

GENERAL ADMINSTRATIVE  DIVISION		)
Re		GAURAV MALHOTRA

Applicant

And MINISTER FOR IMMIGRATION, MULTI-CULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Deputy President Don Muller

Date16 September 2005

PlaceBrisbane

Decision The Tribunal sets aside the decision to cancel the Subclass 119 (Regional Sponsored Migration Scheme) Visa of Gaurav Malhotra and remits the matter to the Respondent for reconsideration in accordance with the direction that in the exercise of the discretion pursuant to section 501 of the Migration Act 1958 the said Visa should not be cancelled.

..............SIGNED................................

Deputy President

CATCHWORDS

IMMIGRATION – cancellation of Regional Sponsored Migration Scheme Visa – applicant stole $120,000 from employer whilst in a position of trust – does not pass character test –wife and two children living in Australia – best interests of wife and children that remain in Australia – decision set aside

Migration Act (Cth) 1958: ss499 and 501

REASONS FOR DECISION

16 September 2005 Deputy President Don Muller        

1.Gaurav Malhotra is a citizen of India who has been living in Australia since he first entered Australia on 7 January 2000.

2.Prior to entering Australia Mr. Malhotra secured a position with an Indonesian company which owned a company called Tipperary Group of Stations, the owner of Tipperary Station and other cattle stations located in the Northern Territory of Australia.  Mr. Malhotra was granted a subclass 456 Business (Short Stay) Visa on 22 December 1999.

3.Over the following years Mr. Malhotra was granted a subclass 457 Business (Long Stay) Visa, and then later a subclass 119 (Regional Sponsored Migration Scheme) Visa.

4.Mr. Malhotra left the employ of Tipperary Group of Stations in October 2002, and obtained a position as a financial accountant with Horwaths SA & NT Pty Ltd.  While he was employed by Horwaths he stole $120,538 from the company.  He was subsequently convicted in the Supreme Court of the Northern Territory and sentenced to imprisonment for three and a half years, with a non parole period of 21 months.

5.On 29 June 2005, a decision was made by a delegate of the Minister to cancel Mr. Malhotra’s visa pursuant to s.501(2) of the Migration Act 1958 (the Act), on the ground that he did not pass the character test, due to his substantial criminal record.

6.Mr. Malhotra does not wish to return to India to live.

7.Mr. Malhotra seeks a review of the decision to cancel his visa.

8.At the hearing Mr Malhotra was represented by Dr Hudson, Immigration Agent, and the Respondent was represented by Mr Chand, solicitor.   

9.The material placed before the Tribunal included the following documents:

Exhibit 1 -      G Documents; and

Exhibit 2 -      The Applicant’s bundle of documents which included:

(i)Statement of Facts and Contentions;

(ii)Statutory Declaration of Gaurav Malhotra, dated 29 July 2005.

(iii)Statutory Declaration of Reena Malhotra, wife of Gaurav Malhotra, dated 27 July 2005.

(iv)Statutory Declaration of Varinder Kumar, friend of Gaurav Malhotra, dated 9 August 2005;

(v)Statutory Declaration of Sareena Bahl, friend of Gaurav Malhotra for about five years, dated 26 July 2005;

(vi)Statutory Declaration of Narinder Bahl, friend of Gaurav Malhotra for about four and a half years, dated 8 August 2005.

(vii)Statutory Declaration of Amit Sharma, friend and former workmate of Gaurav Malhotra, dated 2 August 2005.

(viii)Statutory Declaration of Jai Chandra Singh, friend of Gaurav Malhotra for about 2½ years, dated 26 July 2005.

(ix)Statutory Declaration of Sumit Miglani, friend of Gaurav Malhotra for about 12 months, dated 17 July 2005.

(x)Statutory Declaration of Navjeet Singh Grewal, friend of Gaurav Malhotra for about six months, dated 17 July 2005.

(xi)Copy of birth certificate of Reena Malhotra

(xii)Letter from Phil Brown, Acting Superintendent of Darwin Correctional Centre, dated 24 May 2005.

(xiii)Certified copy of birth certificate of Jashan Malhotra, Gaurav Malhotra’s son;

(xiv)Certified copy of birth certificate of Breena Malhotra, Gaurav Malhotra’s daughter;

(xv)Letter from Childhood Management Services confirming Jashan Malhotra has been accepted for 2005 at the Kings Park Pre-school, dated 29 April 2005.

(xvi)Letter to Reena Malhotra from Western Union Financial Services (Australia) Pty Ltd, with annexures showing transactions by Gaurav Malhotra through Western Union, dated 22 July 2005;

(xvii)Three account statements from the Hongkong and Shanghai Banking Corporation Ltd, dated 2 December 1999;

(xviii)Three customer receipts from the Hongkong and Shanghai Banking Corporation Ltd, dated 9 June 1999, 26 March 1999 and 6 August 1999.

10.     The Tribunal also heard oral evidence from Gaurav Malhotra and his wife Reena Malhotra.

11.     The following matters are not in dispute and the Tribunal finds as follows:

(i)Gaurav Malhotra was born on 20 December 1974, in Ludhiana, Punjab, India.

(ii)Reena Malhotra was born on 30 April 1976, in Ludhiana, Punjab, India.

(iii)Gaurav and Reena Malhotra were married in Ludhiana, Punjab, India on 21 February 2000.

(iv)Gaurav Malhotra has accounting qualifications.  He has a Bachelor of Commerce degree from a university in New Delhi, and he is a Master of Business Administration, from a United States university correspondence course.

(v)Reena Malhotra holds a Master of Commerce degree.

(vi)In 1995, Gaurav Malhotra obtained employment with a company based in New Delhi.  The company specialised in constructing pipelines.  In June 1997, he was promoted and sent to Jakarta to oversee the company’s South East Asian office.

(vii)One of the Indonesian client companies of the company for whom Gaurav Malhotra worked, bought the Tipperary Group of Stations which owned Tipperary Station, among other holdings, in the Northern Territory of Australia.  The Indonesian client company offered Gaurav Malhotra the position of Manager of Tipperary Station.  He accepted the offer.

(viii)As a result of obtaining the Australian position Gaurav Malhotra applied for an Australian visa.  He was granted a subclass 456 Business (Short Stay) Visa on 22 December 1999.

(ix)On 7 January 2000, Gaurav Malhotra entered Australia for the first time.

(x)On 4 February 2000, Gaurav Malhotra left Australia and travelled to India to marry Reena.

(xi)On 15 March 2000, Gaurav Malhotra arrived back in Australia with his wife, Reena.

(xii)On 10 May 2000, Gaurav Malhotra was granted a subclass 457 Business (Long Stay) Visa whilst in the employ of Tipperary Group of Stations.

(xiii)On 23 January 2001, son, Jashan, was born to Gaurav and Reena, at Darwin Private Hospital, Northern Territory.

(xiv)In October/November 2002, Gaurav Malhotra’s employer decided to sell Tipperary Station and to retrench all of the employees there.

(xv)Gaurav Malhotra resigned from his position at Tipperary Group of Stations on 24 November 2002.  He had been the Manager of Tipperary Group of Stations for nearly three years.  During that time he had resided on the station, apart from a two week holiday overseas in May 2001.

(xvi)Gaurav Malhotra had been offered a position as a financial accountant with CSM Technology, of which Horwaths SA & NT Pty Ltd (Horwaths) is a wholly owned subsidiary.  He started work with Horwaths within a few days of resigning from Tipperary Group of Stations.

(xvii)On 5 December 2002 Gaurav Malhotra was granted a subclass 457 Business (Long Stay) Visa.  Horwaths were the sponsors of the visa. 

(xviii)On 27 June 2003 Gaurav Malhotra was granted a further subclass 457 Business (Long Stay) Visa.  Horwaths were the sponsors of the visa. 

(xix)On 22 October 2003 Gaurav Malhotra was granted a subclass 119 (Regional Sponsored Migration Scheme) Visa, sponsored by Horwaths.

(xx)Gaurav Malhotra’s duties with Horwaths included maintaining Horwaths’ accounts, providing monthly accounts and weekly reports to management and payment of Horwaths’ creditors.  He was paid an annual gross salary of $55,000 including superannuation, with no other entitlements to pay or allowances.

(xxi)Between 29 August 2003 and 11 February 2004, Gaurav Malhotra stole a total of $120,538.89 from Horwaths.  He falsely recorded that payments were being made to legitimate creditors of Horwaths, but he diverted the payments to an account which was in the joint names of Gaurav and Reena Malhotra.  He used this method on 26 occasions to steal various amounts ranging from a low of $237 to $9,157.50.  On each occasion he withdrew the amount from the joint account soon after the transactions were completed.  He spent the money for his own purposes.  (There is no suggestion that Reena Malhotra knew anything about her husband’s theft of money from Horwaths until he was arrested.)

(xxii)On 23 February 2004, Gaurav Malhotra’s new supervisor queried him about a number of the fraudulent payments.

(xxiii)On 24 February 2004, Gaurav Malhotra tendered his resignation from Horwaths.  He attended work at Horwaths on 25 February 2004 but did not return to work on or after 26 February 2004.

(xxiv)On 26 February 2004, the matter was reported by Horwaths to the Northern Territory Police Fraud Unit.

(xxv)On 3 March 2004 police attended at the Malhotra residence in Darwin.  Reena Malhotra was at the residence but Gaurav Malhotra was in Melbourne.

(xxvi)On 25 March 2004, Gaurav Malhotra was arrested in Melbourne and then extradited to the Northern Territory.  He was released on bail on 29 March 2004.

(xxvii)On 1 June 2004, Gaurav Malhotra informed prosecutions that he would be pleading guilty and that he wished to proceed by way of ex-officio indictment.

(xxviii)On 8 August 2004, a daughter, Breena Malhotra, was born at St. Albans, Victoria.  She is an Australian citizen.

(xxix)On 14 September 2004, Gaurav Malhotra pleaded guilty in the Supreme Court of the Northern Territory.  He then gave evidence that he used the stolen money to pay for a liver transplant for his mother who had been diagnosed with liver cancer.  He produced a fax of a doctor’s letter to support his evidence.   He said that he paid the equivalent of $83,238 for the operation and a further $28,089 privately to the family of the liver donor.  He claimed that he had transferred the money in amounts of about $15,000 per transaction through Western Union.  The matter was adjourned to 16 September 2004 to allow him to obtain from his Melbourne home the Western Union receipts.

(xxx)Upon resumption of proceedings on 16 September 2004, Gaurav Malhotra produced an original of the alleged doctor’s letter with a further fax copy purporting to state that the contents were true and correct.  Gaurav Malhotra gave further evidence that he sent about 90% of the stolen money to India to finance his mother’s liver transplant.

(xxxi)Between 14 September and 16 September 2004, the prosecution made certain enquiries of Indian medical agencies and discovered that Gaurav Malhotra’s claims about his mother’s operation were false.  These concerns were raised with him on 16 September 2004.

(xxxii)Gaurav Malhotra was forced to concede that his evidence about his mother’s liver transplant was false.

(xxxiii)Sentencing took place in the Supreme Court of the Northern Territory on 20 September 2004.  The transcript of the sentencing proceedings before Bailey J shows that the judge covered the matters canvassed on 14 and 16 September, and also contains the following passages:

“Ms Carlin for the DPP produced various bank records of the prisoner’s accounts with the ANZ and Westpac and a credit card account with GE Capital Finance Australia.  In brief terms these records show that the prisoner made numerous cash withdrawals at Darwin’s casino both before and during the charge period. Often the prisoner made multiple withdrawals of cash at the casino on the same day.  The inference from these records does not support the prisoner’s evidence that he only took up serious gambling after he embarked on the theft of Horwath’s money.

The prisoner’s offence involves the theft of more than $120,000 taken in the course of 26 occasions over a period of five and a half months.  The victim was the prisoner’s employer who had taken over sponsorship of the prisoner’s residence in Australia under a temporary business visa and subsequently supported him on an application for a permanent visa.  The prisoner’s offence represents a gross breach of trust against his employer.

The sum involved was substantial.  The fraud was carried out over five and a half months.  The prisoner was in a sufficiently senior position to cover up what he was doing in the accounts, albeit that it was very likely, if not inevitable, that his frauds would be exposed eventually.  The prisoner’s offence had a substantial effect on the victim company’s cash flow and on the account staff by increasing stress levels.

In the prisoner’s favour he has pleaded guilty to an ex officio indictment.  He is a first offender in relation to fraud.  He has a supportive employer.  He does wish to make restitution, albeit that the amount that is likely to be available by the sale of his block of Victorian land is not likely to be substantial.

The prisoner’s prospects for rehabilitation and the genuineness of his remorse is clouded by his amateurish attempt to rely on the bogus letter from Dr Trahan.  In these days of the Internet it takes only a matter of minutes to discover that no Dr Sanit Trahan works at the Escorts Heart Institute of New Delhi, nor does that hospital have an oncology or renal department.  Further the address and phone number on the bogus letter are incorrect.  The Crown sought to telephone the seven digit phone number on that letter without success.  By adding an eighth digit to accord with current New Delhi phone numbers the Crown spoke to someone purporting to be the prisoner’s cousin.

I will not impose additional punishment on the prisoner for his attempt to deceive the court, but the prisoner’s attempted deception suggests that he is not presently a good candidate for rehabilitation.

Allowing for a one-third discount for the plea of guilty I sentence the prisoner to imprisonment for three years and six months and I fix a non-parole period of 21 months.  Both the sentence and non-parole period are to run from 12 September 2004 to take account of time spent in custody.”

(xxxiv)Gaurav Malhotra transferred about $20,000 to India during his time in Australia.

(xxxv)Gaurav Malhotra’s non-parole period expires in June 2006 and his full-sentence ends in early 2008.

12.The legislation relevant to this review is contained in subsections 501(2), (6) and (7) of the Act.  They provide:

“s.501

(2)  The Minister may cancel a visa that has been granted to a person if:

(a)the Minister reasonably suspects that the person does not pass the character test;  and

(b)the person does not satisfy the Minister that the person passes the character test.

…

Character test

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

(a)the person has a substantial criminal record (as defined by subsection (7));  or

..

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

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

(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 significant risk that the person would:

(i)engage in criminal conduct in Australia;

otherwise, the person passes the character test.

Substantial criminal record

(7)  For the purposes of the character test, a person has a substantial criminal record if:

….

(c)the person has been sentenced to a term of imprisonment of 12 months or more;  or

(d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more.”

13.There is no doubt that Gaurav Malhotra has been sentenced to a term of imprisonment of 12 months or more.  He therefore has a substantial criminal record within the meaning of that term in subsection 501(7) of the Act.  He is therefore deemed by subsection 501(6) to not pass the character test.  Consequently, the delegate of the Minister was entitled to cancel his visa under subsection 501(2) of the Act.

14.However, notwithstanding the fact that the decision to cancel Gaurav Malhotra’s visa was justified, section 501 allows for the decision-maker to exercise a discretion in each individual case.

15.The question for determination by the Tribunal is whether the discretion should be exercised in Gaurav Malhotra’s favour.

16.The oral evidence of Gaurav Malhotra in the Tribunal hearing was to the following effect:

·     In 1988 when he was 14 years of age, his father died.  His father had been in business but had accumulated a lot of debt.  When his father died the family was left in a poor financial state.  He was the eldest son and he believed that he had the responsibility to do well, earn money and support the family.

·     The position in Indonesia was a breakthrough for him.

·     He explained his family situation to his employer and was permitted to take a loan from the company in advance of his salary.  He used the loan to help his family.

·     When he joined the company which bought Tipperary Station, the new employer took over his loan and he repaid the new company from his wages.

·     Tipperary Station had been running at a loss for many years prior to his becoming the manager.  He worked hard and turned the enterprise into a profitable entity.

·     He had trouble balancing his own finances.  He was paying back the loan.  He was sending money to his family in India.  He was trying to survive in Australia with the added responsibility of a wife and new baby.

·     He developed credit card debts.  He was not coping well with the financial pressure.

·     When he obtained the job with Horwaths in Darwin he was introduced to the Casino culture.  He hoped to build up his finances by gambling.  It did not happen.

·     He has learned his lesson.  He will not re-offend.  He wants to start afresh.

·     He has been a good prisoner.  He is currently head cook in the kitchen.  He has been designing a web site for inductees. He wears a green shirt in prison, which indicates that he is in the “low risk” category.

·     He realises that it is unlikely that he will ever again be employed as an accountant. He has begun an electricians apprentice course.  He also has developed cooking skills while in prison.

·     He would have great difficulty starting from scratch in India.

·     His children, particular his daughter, would not have the opportunities in India that they would have here in Australia.

·     His family in India now shun him.  They do not want to have anything to do with him.

·     The Australian Indian community has been very supportive of him.

17.The evidence of Reena Malhotra was to the following effect:

·     She has been in Australia five years and has been well accepted.

·     Her university qualifications have been accepted in Australia and she intends to do a 12 month teaching qualification course to allow her to teach in Australia.  In India she would not be able to get the same opportunity to get into a profession.

·     Both of her children were born in Australia.

·     Her husband’s family has had nothing to do with her or her children since her husband stopped sending them money.

·     Her own family are in India but they are not in a financial position to give any support.

·     She has a sister in India, but she has applied to come to Australia.

·     There is no doubt that she and her children are much better off in Australia than they would be in India.  Particularly, her daughter will be far better off in Australia because in India women suffer from extreme discrimination in education, socially and in the professions.

·     If her husband returns to India she will go with him and take her children.  If that should happen her children will not be able to understand the language in the Punjab.  However, they would probably pick it up.

·     They do not have a home to go to in India.  Her parents only have a small house, which would not accommodate her, her husband and two children in addition to her parents.

18.The material placed before the Tribunal indicates that notwithstanding his commission of a serious crime, Gaurav Malhotra has a lot of support in the local Indian/Australian community.  He has been employed as an apprentice electrician by one of the members of that community.  One of them even had him attending to their book-keeping.  He is popular with the members of the community and played cricket for one of their teams.

19.The Acting Superintendent of Darwin Correctional Centre, Phil Brown, had this to say about Gaurav Malhotra:

“Gaurav Malhotra is described as a quiet and polite prisoner who knows the boundaries and as one who does not cause problems for staff or other prisoners.  He is reported as being willing to assist in the block when required.  Block Offices report that he complies with block routines and dress requirements.  He mixes well with other prisoners in his block and takes part in some block activities.

He is described as an excellent worker who is employed as a Principle Cook tasked with preparing diet and special meals.  He is currently undertaking units in the Certificate 1 Hospitality (Commercial Cooking) Course.

He has applied to participate in any programs available to address his offending behaviour.

There are no adverse reports on file and he does not appear to pose a threat to security.”

20.The Minister has issued a Direction (number 21), pursuant to the provisions of s.499 of the Act, which contains matters which decision-makers (including the Tribunal) are to take into account in exercising the discretion allowed for in section 501.

21.The Minister’s Direction 21 contains a large number of matters which a decision-maker should take into account in assessing whether discretion should be exercised in favour, or otherwise, of a person whose visa may be cancelled.  A number of the matters do not apply to Gaurav Malhotra.  I regard the following matters as relevant to this review.

Protection of the Australian Community

22.There is no doubt that the circumstances surrounding the crime committed by Gaurav Malhotra make it a serious matter.  The sum involved, $120,000, was large.  Gaurav Malhotra was in a position of trust, and he was also being sponsored in relation to his visa by the employer from whom he stole the money.

23.Gaurav Malhotra was not merely dishonest, he showed a complete lack of moral fibre, a lack of loyalty to his employer, a lack of a sense of responsibility and a lack of common decency.

24.I am not particularly impressed by his claim that he was supporting his family in India.  The records show that he sent about $20,000 to India.  That leaves about $100,000 that he did not send to his family.

25.On the other side of the ledger there are some positives for Gaurav Malhotra as far as an assessment of his likely danger to members of the Australian community is concerned.

(i)He did not steal from, or defraud, members of the community who were vulnerable or who would be ruined by the theft.  That is, he did not target the elderly, the disadvantaged or any persons who could not look after themselves.

(ii)He stole from a large company with significant resources in circumstances in which it was inevitable that he would be caught and eventually punished.

(iii)He has had the full force of the Australian law come down on him.  He has been punished.  He has been removed from the community and from his wife and children for a not insignificant period.

(iv)He has been a model prisoner.

(v)He is most unlikely to ever be in a position to commit this type of crime again.  His criminal record probably makes him unemployable as an accountant.

(vi)Although the crime he committed was extremely serious, that fact alone does not indicate that he is a serial predator, or likely to be.  It may have been a “one-off” situation.

26.Although I believe that Gaurav Malhotra is a person of weak character, he probably poses no further threat to the members of the Australian community.

Expectations of the Australian Community

27.In my view the Australian community would not feel much sympathy towards Gaurav Malhotra.  He broke one of the golden rules of our society.  He “bit the hand that fed him”.  It was a gross breach of trust;  a gross insult to the hospitality of the Australian community;  a gross abuse of the Australian system of giving a fair go to people from those parts of the world where living conditions are not as good as ours.

28.The Australian community would probably expect that Gaurav Malhotra be sent packing back to where he came from.

The best interests of children

29.Gaurav Malhotra has a four year old son who is an Australian permanent resident (holder of a subclass 119 visa) and a 12 month old daughter who is an Australian citizen.  The mother of the children, Reena Malhotra, is an Australian permanent resident.

30.I have no doubt that the best interests of the children will be served if they remain with both parents and that they all remain in Australia.  The differences in opportunities and living standards between India and Australia are well documented and it is unnecessary for me to traverse them here.  The differences are particularly significant in the case of women such as Reena Malhotra and her daughter, who would, I believe, suffer from serious discrimination if they had to return to India to live.

Other considerations

31.Reena Malhotra gave evidence that if her husband has to return to India, she and her children will go with him.

32.She predicted that if the family has to start from scratch again in India they will undergo serious privations.  They have no jobs to go to.  They have no home to go to.  Jobs are hard to come by in India, and so is good accommodation.  She will have little chance of entering a profession.  Her daughter would be seriously disadvantaged in India.

Conclusion

33.I do not have much sympathy for Gaurav Malhotra.  However, I do feel a good deal of sympathy towards his wife and two children.  I believe that it would be a tragedy for them if they had to return to India.  Particularly so because the wife and children are completely innocent parties in this situation.

34.I take the view that Gaurav Malhotra represents a very small risk of harm to the Australian community.  Any such risk is far outweighed by the best interests of his children, plus the interests of his wife for good measure, which is for them to remain in Australia.

35.Consequently, I set aside the decision to cancel Gaurav Malhotra’s visa and remit the matter to the Respondent for reconsideration with the direction that in the exercise of the discretion allowed for under section 501 of the Act, Gaurav Malhotra’s visa should not be cancelled.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller.

Signed:         .....................................................................................
           B. Hitchcock, Personal Assistant

Date/s of Hearing   6 September 2005
Date of Decision  16 September 2005
Applicant   Dr. Hudson, immigration agent
Solicitor for the Respondent      Clayton Utz