Miglani and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 2719

Miglani and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2719 (23 August 2023)
Division:GENERAL DIVISION
File Number: 2023/3947
Re:Sunny Miglani
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senor Member D. J. Morris
Date:23 August 2023
Place:Melbourne

Pursuant to s 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
.....................................................[SGD]...................
Senor Member D. J. Morris
Catchwords
MIGRATION – applicant is citizen of the Republic of India – applicant refused Bridging E (Class WE) visa under s 501(1) of Migration Act – review sought before Tribunal – two questions – does applicant pass character test – if not, should the discretion be exercised to refuse to grant the visa – is foundation for decision that applicant fails character test met – applicant committed sexual assault on a child – exercise of the discretion – ministerial Direction No. 99 – primary considerations – protection of the Australian community – whether the applicant has engaged in family violence conduct – strength, nature and duration of ties with Australia – expectations of Australian community – other considerations – decision under review is affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Sentencing Act 1991 (Vic)
Sex Offenders Registration Act 2004 (Vic)
Cases
Anderson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affair; Re: [2021] AATA 205
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Miglani (Migration) [2022] AATA 4835
Secondary Materials
Migration Act 1958 – direction under s 499 - Direction No. 99 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (commenced 3 March 2023)
REASONS FOR DECISION
Senor Member D. J. Morris
23 August 2023

The Applicant is a citizen of the Republic of India. He first arrived in Australia in June 2017 on a visitor visa and departed the following month. In April 2018 he returned to Australia and was granted a student visa as a dependant of his wife, who will be called ‘Ms AM’ in these reasons.
On 11 March 2019 there was an incident at a service station where the Applicant was employed, between him and a young female customer. The customer made a complaint to the police. As a consequence, the Applicant was invited on 10 April 2019 to attend an interview with police. He voluntarily did so. He denied responsibility and was released pending summons.
On 8 May 2019 there was another incident at the same service station between the Applicant and a different female customer, who was aged 37.
On 24 June 2021 the Applicant appeared before the Magistrates’ Court of Victoria. He pleaded guilty to three charges: Sexual Assault (relating to the incident on 11 March 2019); Sexual Assault and False Imprisonment (common law), (relating to the incident on 8 May 2019).
The Magistrates’ Court convicted Mr Miglani and he was sentenced to serve a six-month term of imprisonment and an 18-month Community Corrections Order (CCO). He was also required to report to police for eight years as a registered sex offender under the Sex OffendersRegistration Act 2004 (Vic).
The Applicant appealed the Magistrates’ Court decision to the County Court of Victoria. His student visa was then cancelled under s 116(1)(g) of the Migration Act 1958 (Cth) (‘the Act’) and reg 2.43(1)(oa) of the Migration Regulations 1994 (Cth). He sought review of that decision in the Migration and Refugee Division of this Tribunal, and the cancellation decision was affirmed.
On 10 August 2021 Mr Miglani applied for a bridging visa on the basis that he had sought merits review of the cancellation of his student visa.
On 13 October 2021 the County Court allowed the Applicant’s appeal and set aside the sentence of the Magistrates’ Court. The County Court reconvicted him of the three offences and imposed a 30-month CCO and a direction that the Applicant undertake rehabilitation and treatment programmes.
On 15 June 2022 the Applicant was remanded into custody in relation to failing to comply with conditions of his registration as a sex offender. The nine breaches were: (a) in the period 1 December 2021 to 25 May 2022 the applicant failed to report employment details on three occasions; (b) in the period 7 March 2022 to 27 May 2022 the Applicant failed to report the location of a child contact; (c) on 30 May 2022 the Applicant failed to report internet usernames in five instances. He was sentenced to one month imprisonment, with ten days already in custody to be counted as time served. Mr Miglani said in the hearing he served another 17 days in prison and was then released (but taken into detention).
He was also convicted on 2 September 2022 under the Sentencing Act 1991 (Vic) for failing to comply with the conditions of the CCO imposed on him, but no further order was imposed.
Mr Miglani pleaded guilty to these non-compliance offences on 29 June 2022 and was released from prison. He was then detained by immigration authorities under s 189 of the Act and sent to Melbourne Immigration Transit Accommodation (MITA).
On 27 July 2022 an interim family violence intervention order was issued against the Applicant preventing him from contacting his wife, Ms AM.
On 19 May 2023 the Applicant’s application for a bridging visa was refused by a delegate of the Minister, under s 501(1) of the Act because the delegate was not satisfied that the Applicant passed the character test under s 501(6). This section provides that a person does not pass the character test if a court in Australia or a foreign country has convicted the person of one or more sexually based offences involving a child; or found the person guilty of an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction.
It is this decision of 19 May 2023 that Mr Miglani has brought to the Tribunal for review. Under the provisions of s 500(6L) of the Act, the Tribunal must make a decision before 23 August 2023 or by force of law the decision being reviewed is deemed to be affirmed.
HEARING
The hearing took place by video, as permitted under s 33A of the Administrative AppealsTribunal Act 1975 (Cth), on 15 and 16 August 2023. The Applicant represented himself and was cross-examined by Ms Catherine Oppel, of The Australian Government Solicitor. The Applicant called the following witnesses: Mr Karminder Singh; Mr Jatinder Singh (both friends); and Mr Andrew Whitcombe, a fellow detainee and his roommate at the detention centre.
The Tribunal had regard for a Statement of Facts, Issues and Contentions of the Minister, dated 1 August 2023; a Statement of Facts, Issues and Contentions of the Applicant, dated 18 July 2023 and an Applicant’s Statement in Reply, dated 9 August 2023. Other documents admitted into evidence are in the annexure to these reasons.
The circumstances of the offending
In regard to the first incident on 11 March 2019, the facts of the offending which led to a charge of one count of Sexual Assault, were as follows. The first victim, who will be called Ms FV, was a regular customer at the service station where Mr Miglani worked. On that day she rode her bicycle to the service station. The Applicant was on shift duty. He invited her to an area of the service station which he told her was not covered by closed-circuit tv cameras. He offered her chocolate bars. He then hugged and kissed her. In her statement to police she said she felt ‘extremely uncomfortable’. He then pulled away and then came back towards her, hugging and kissing her again and bringing his hand over her chest and breasts, holding it there. When she got up to leave, she said he offered her ‘more free items, cigarettes or anything I wanted’.
Ms FV was aged 16 at the time, which means she was a child for the purposes of the law. Mr Miglani disputed her age in written submissions prepared by his previous legal representative before the hearing, and maintained this dispute in his oral submissions. He noted that one of the police officers who interviewed him speculated that she was ‘aged 18 or 19’. Mr Miglani said there was no corroborative evidence that Ms FV was a child at the time.
In regard to the second incident on 8 May 2019, which led to a charge of one count of Sexual Assault and one count of False Imprisonment (common law), the facts of the offending were as follows. The second victim, who will be called Ms SV, attended the same service station where Mr Miglani was working. He offered Ms SV free cigarettes and led her into a staff-only room of the premises. He grabbed and rubbed her buttocks without her consent and said, ‘You want fuck?’ twice, before attempting to keep her in the room, by blocking her from leaving. She was released after a short physical struggle. Afterwards, he told Ms SV to ‘tell no one’.
As mentioned above, following the disposition of the Applicant’s three offences by the Magistrates’ Court, Mr Miglani appealed to the County Court, not on the three convictions but on the sentence imposed. The County Court set aside the Magistrates’ Court’s orders and reconvicted the Applicant, imposing a CCO for 30 months and placing him on the register of sex offenders.
The Applicant committed nine further offences in relation to breaches of his obligations as a registered sex offender. He also breached his CCO. He was back before the Magistrates’ Court in June 2022 and pleaded guilty to the non-compliance offences, receiving an aggregate sentence of one months’ imprisonment. On completion of his prison sentence he was taken into immigration detention under s 189 of the Act.
The foundation of the visa refusal
The Minister’s delegate was satisfied that Mr Miglani did not pass the character test set out in the Act because of the provisions of s 501(6)(e)(i) of the Act. That subsection provides:
Character test
(6) For the purposes of this section, a person does not pass the character test if:
…
(e) a court in Australia or a foreign country has:
(i) convicted the person of one or more sexually based offences involving a child; …
The Respondent submitted that evidence supporting the conclusion that Ms FV was 16 years old at the time of the sexual assault was a statement by her aunt and legal guardian (SGD, p 488); the police preliminary brief (GD, p 28) and submissions made to the County Court when the Applicant appealed his original sentence (SGD, p 564).
More relevantly to the Tribunal was the County Court of Victoria document headed ‘Result of Appeal’ (GD, p 35). That document describes the three offences as follows:
1. SEXUAL ASSAULT Registrable Offence – Class 2 – Sex Offenders Registration Act 2004.
2. SEXUAL ASSAULT
3. FALSE IMPRISONMENT (Common law)
In the column headed, ‘Decision on Appeal’ the Court records that it set aside the orders of the Magistrates’ Court of Victoria on 24 June 2021 and in their stead the following orders were made:
Charge(/s) 1, 2, 3
Convicted, and ordered to serve a Community Corrections Order for a period of 30 Month/s.
The document also recorded that Mr Miglani must participate in programmes and courses that address factors relating to his offending behaviour as directed by the Regional Manager. It goes on to say that pursuant to s 34 of the Sex Offenders Registration Act 2004 (Vic), the length of the reporting period is eight years.
Section 3 of the Sex Offenders Registration Act 2004 (Vic) provides that a ‘Class 2 offence’ means an offence listed in Schedule 2 of that Act. Schedule 2 relates to offences where the victim is a child (the definition of ‘child’ in s 3 of that Act is any person under the age of 18 years). Section 34 of that Act further provides that for a first offence relating to a Class 2 matter, the mandatory period the offender is placed on the sex offenders register is eight years.
The Tribunal is satisfied that this official County Court record distinguishes the conviction in relation to the 11 April 2019 offence on the basis that Ms FV was a child. The Tribunal completely rejects the written submissions lodged on Mr Miglani’s behalf which questioned this fact, and the Applicant’s oral submissions along the same lines.
Finding on the character test
The Tribunal finds the Applicant does not pass the character test in s 501(6) of the Act because of the provisions of s 501(6)(e)(i).
Having made that finding, the next task for the Tribunal is to consider whether the discretion should be exercised to refuse to grant the visa. In considering that, the Tribunal must have regard to Direction No. 99, which is a ministerial direction issued by the Minister in March 2023. That Direction guides decision-makers as to what considerations to take into account in relation to their exercise of the discretion to refuse to grant a person a visa under s 501(1) of the Act.
APPLYING THE DIRECTION
The Direction requires the Tribunal to consider five primary considerations, as relevant to an applicant. It also lists four other considerations that, if relevant, must be addressed but makes clear this is a non-exhaustive list. The Tribunal should consider any other matter which is consistent with the purposes of the Act.
Primary consideration: Protection of the Australian community from criminal or other serious conduct (paragraph 8.1)
The nature and seriousness of the conduct
The Tribunal is obliged by the Direction to take into account, without limiting the range of conduct that may be considered very serious, whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children, or acts of family violence. The Tribunal finds that Mr Miglani’s criminal convictions do relate to sexual crimes, one in relation to a child and the other in relation to an adult woman. The Tribunal finds that while there was no penetrative conduct, any sexual assault is, ipso facto, a crime of violence. In these cases, both victims knew that he had led them to places in the service station where CCTV could not record his actions, and in the second case he briefly prevented Ms SV leaving the room, which must have been frightening for her.
The Tribunal must consider the frequency of the offending, any trend of increasing seriousness and the cumulative effect of repeated offending. In this case, there was no evidence of the Applicant having committed any offence in Australia or in his home country of India prior to March 2019. It may therefore be arguable that the offending was ‘out of character’. However, Mr Miglani – knowing that Ms FV had made a complaint and having been interviewed by the police – went on to commit a very similar sexual assault against a second victim two months later, at the same place. The second offending incident was of a more serious nature in the sense that he prevented the victim leaving the staff room when she had clearly rebuffed his advances.
In addition, 10 non-compliance offences for which Mr Miglani pleaded guilty in relation to breaching his reporting obligations under the sex offenders register illustrate to the Tribunal a completely cavalier attitude to his duties under the law. This conduct adds to the Tribunal’s conclusion that Mr Miglani’s overall conduct is serious.
The Direction also requires the Tribunal to consider whether the Applicant has committed any offences in immigration detention, or whether he has offended after being warned in writing or another way by the Department of the potential effect on his migration status. There was no evidence of offending in detention. The Tribunal had extensive reports from the detention centre, none of which were indicative of misconduct. The only notable report was the Applicant being asked not to feed pigeons, which the Tribunal regards as completely trivial. Mr Whitcombe, who shares a room with Mr Miglani at the detention centre, gave evidence, which the Tribunal accepts, that he is well-behaved and gets on with other detainees and detention officers.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Direction states that decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. The Direction states that some conduct and the harm that would be caused, if it were repeated, is so serious that any risk that it may be repeated is unacceptable.
Paragraph 8.1.2(2) of the Direction requires the Tribunal to have regard to, cumulatively, the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct and the likelihood of that.
There would be a risk to the Australian community if Mr Miglani resumed offending in the same manner. The Respondent asked Mr Miglani what happened on 11 March 2019. He responded, ‘I don’t remember exactly. It was four years ago. My hand touched her. I am remorseful, I admit that.’
Ms Oppel asked the Applicant what happened when he touched Ms FV. He responded;
I did two jobs at that time. I remember I touched her. Cannot recall. Mental health has deteriorated since I came to the detention centre. I pleaded guilty based on the touching, not based on her police statement.
Mr Miglani denied offering Ms FV chocolate bars and drinks. Ms Oppel noted it was raining on the day in question and he took Ms FV behind the counter. He responded, ‘I do not remember.’ Ms Oppel then said, ‘You hugged and kissed her on the cheek, pulled away, kissed again. Put you hand over her chest and breasts. Is that what happened?’
Mr Miglani responded, ’I do not remember. I was doing two jobs. I remember I touched her but not what happened. I had a lack of sleep.’
Ms Oppel then took Mr Miglani to the second and third offences committed on 8 May 2019 and asked what his recollection of that offending was. He responded, ’I have told you earlier. I do not remember. I touched her by hand. Don’t have any recollection.’
Ms Oppel then referred to Ms SV’s statement which said Mr Miglani offered her free cigarettes but to get them, she would have to go to the unlit back room. She said the Applicant touched her back and her backside and suggested whether she wanted sex. When she tried to leave, he held the door and prevented her. Ms SV yelled and said she was scared. She wrestled with Mr Miglani and forced the door open. She said the Applicant said to her ‘Tell nobody. Say nothing about this.’ Ms Oppel asked the Applicant if that is what happened.
He responded, ‘As I said, I got the statement four years later. I have sent a video showing she waved bye as she left.’ The Tribunal then asked him directly whether he was saying none of this happened. Mr Miglani responded, ‘No. It did not happen. She left.’
The Tribunal then said to the Applicant, ‘You admitted you touched her. This is your opportunity to say what happened.’ He replied, ‘I touched her. Then she left. That’s all I remember.’
Mr Miglani said he did not remember asking Ms SV to go to the back room with the promise of cigarettes.
Ms Oppel asked the Applicant as to whether there was an explanation as to why he offended. He responded;
I was working tirelessly at the time. Language barrier. Remorseful. I know I was out of line. I have lived in the community. The County Court said I was not a threat to the community.
Ms Oppel asked what relevance the language barrier was, given he lured his victims into part of the premises not covered by cameras and, in the second case, into a private staff room. He replied, “I come from a different culture. Worked hard. Deprived of sleep. Remorseful. Feel very sorry for how the victims felt. Will never do it again.”
Ms Oppel took Mr Miglani to a statement his then migration agent lodged with the Tribunal on 15 November 2022 on behalf of Mr Miglani in relation to the Tribunal proceedings about the cancellation of his student visa (SGD, pp 610-620). The relevant passage was:
Please find my responses below for the specific questions raised by the honourable member:
5.1 Whether you pleaded guilty to or were found guilty after a contested hearing of the three charges you were convicted of on 24 June 2021:
I had pleaded guilty to all charges, but only on insistence of my previous solicitor/lawyer. I always wanted to deny them and fight the allegations.

Mr Miglani was taken to another passage in this statement (SGD, p 616) where he wrote:
Both of the incidents involved summary offences, but the police/other party primarily depicting me as a sexual predator. It has been very unfortunate that during the entire investigation, the entire focus was on my character and the police failed to examine and interrogate the body language and intentions of the opposite party and it is obvious, how I was trapped with all these false allegations and portraying me as a sexual predator, which is very hurting. Despite of the fact that, I have intensive work experience in the past and intensive travel without any criminal record. The police even charged me with the offence of false imprisonment, which I deny until date because there was never any use of physical force, there was no evidence of scratches on the other body’s, and even during the investigation the other party failed to prove that she was forced into the backyard.
This statement had an electronic signature but was not dated. Mr Miglani said;
I never gave this statement to my lawyer. If I signed it, I would have dated it. I don’t know who made this statement. I would have dated it.
Ms Oppel took Mr Miglani to a report by Mr Jeffrey Cummins, psychologist, dated 3 March 2021. Mr Cummins examined Mr Miglani on 11 February 2021 in relation to a plea hearing he was shortly to have in the Magistrates’ Court. Ms Oppel noted that Mr Cummins wrote:
I assess his current risk of committing a further sexual offence as being Low. Nonetheless, at interview he had a tendency to blame the victims and he stated that they presented as being overly friendly towards him. In my opinion, he still had difficulty adequately and realistically processing issues to do with victim empathy (SGD, p 516).
Mr Miglani said he had done a ‘Better Lives’ course as part of his CCO following his County Court appeal. He said this involved discussing offending in a group, which he found quite shameful. He said ‘It has brought a positive change in my life. I learned a big lesson in my life from this.’
Ms Oppel read to the Applicant a paragraph in Mr Cummins’ report (SGD, p 515):
On the basis of Mr Miglani’s comments at interview, he has already “learnt his lesson” from being arrested and charged with the offending. However, it is significant that at interview he admitted when he was initially interviewed by police on 10/4/2019 he was given a warning and told he could be charged but he then reoffended on a later date.
Mr Miglani responded, ‘I didn’t say that. This is just his opinion. To be honest, I don’t remember whether I did say that then.’
Before the Tribunal was a report from Mr Bernard Healey, clinical psychologist, who assessed Mr Miglani on 15 August 2022. Mr Healey noted that after being assessed using criminogenic tools relating to risk of committing further sexual offences in July 2021, Mr Miglani was assessed to be a ‘low to moderate risk’ of sex offending, and a ‘low risk’ of sexual violence (GD, p 295).
The Tribunal formed a generally unsatisfactory view of the Applicant’s credibility and truthfulness in his evidence. It is not plausible that while he admits on the one hand he had never been in trouble with the police in his life, he could not remember the details of his offending against Ms FV and Ms SV. These would be significant events in his life. It also sits badly with the fact that as recently as November 2022 his migration agent provided a detailed personal statement of Mr Miglani to the Tribunal in earlier proceedings, which did go into the details of what occurred on 11 March and 8 May 2019.
The Tribunal does not accept Mr Miglani’s disavowal of this statement on the basis that it was signed but not dated. There is no one else in whose interests the migration agent would have forwarded such a statement.
I also note that the Applicant continued, in that statement, to deny the charge of false imprisonment, and yet his own roommate, Mr Whitcombe said in evidence:
I imagine the Applicant misinterpreted the friendliness of the victims as something more than it was. He doesn’t strike me as a predator. I don’t think it was premeditated. In the second case there was some attempt to restrain the victim – I expect that is down to panic. Out of character from what I’ve observed …
For Mr Whitcombe to make an observation about the false imprisonment charge relating to Ms SV, it seems highly likely that this is because Mr Miglani had told him further details about the offence.
In regard to whether he was warned after his first police interview about future conduct, and then went onto offend two months later, I prefer the report of Mr Cummins to the vague evidence of Mr Miglani. I also consider that, having been so warned and going on to offend, is an ingredient which contributes to risk of reoffending.
Overall, I found the Applicant’s inability to grapple with his offending and his inconsistencies in responses, coupled with the large number of non-compliance offences of which he pleaded guilty, lead to a conclusion that he is – at least – a moderate risk of reoffending.
Ms Oppel drew the Tribunal’s attention to a decision of SM Furnell in Re: Anderson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 205, at [94]:
As for insight, I see it as coupled with remorse. While a person truly remorseful for certain conduct might be less likely to repeat it this only applies where the person has insight into the conduct concerned. In this matter, I accept that the Applicant is remorseful about the situation he, Mika and their children are in. Mika states that the Applicant calls her every day to apologise. I do not consider this remorse to be a material risk mitigation factor, however, as the Applicant’s insight into what he did seems limited.
While care should be taken comparing the circumstances of different applicants, I generally agree with the learned Senior Member’s conclusions about the link between insight and remorse. I found that when Mr Miglani spoke about remorse, it was almost like he was just parroting a word; he did not open up to the Tribunal about how his two victims might have felt, nor even when prompted, why he committed the offences. His vagueness about the offending contributes to a view that he does not fully accept his offending.
The Tribunal finds that this primary consideration weighs in favour of refusing to grant the visa, and that weight is relatively heavy.
Primary consideration: Family violence committed by the non-citizen (paragraph 8.2)
The Direction requires the Tribunal to consider whether a non-citizen has been convicted of any offence or had charges proven that involve family violence. The Respondent submitted that Ms AM’s complaint to the police when seeking an interim family violence intervention order constituted conduct relevant to this primary consideration. Ms AM complained of the Applicant continually telephoning her and, when she blocked his calls, he used the phones of other people to call her. She also said that she changed her bank account because he was controlling her earnings.
Ms Oppel in closing submissions submitted that constant phone calls is behaviour that coerces and controls and is ‘a kind of stalking’ and that the evidence at SGD, p 588 is sufficient to show that Mr Miglani controlled her income.
Before the Tribunal (SGD, pp 583-584) was a document headed ‘Application and summons for an intervention order’. The police recorded the following:
The AFM is [Ms AM] and the Respondent is her husband Sunny Miglani. The couple have been married for 6 years and were originally from India. This is the first recorded FVI. On Tuesday 12/07/2022, the AFM attended at Horsham Police Station and spoke to S/C [name redacted]. The AFM explained the relationship was over between her and her husband and she would eventually apply for a divorce. The Respondent has a criminal history and is currently being held at the Broadmeadows Detention Centre where he will be eventually deported back to India, the AFM stated that she had informed the Respondent to start a new life and that she has started a new life. The Respondent has continually made many daily phone calls to the AFM and begging her to give him one more chance for their marriage. The AFM stated that she has blocked his mobile phone number, but he is accessing other phones to continually call her. The AFM stated that the Respondent has continually called her work place and made many inquiries about her. The AFM explained that there has been nil violence but she is constantly feeling harassed and under pressure from her husband to restart the relationship. The AFM stated to police that she wanted a full order so the respondent couldn’t contact her.
The Applicant in his written evidence said that he and Ms AM had daily phone calls and sometimes video calls up until 11 July 2022. He said he then received a phone call from Victoria Police on 12 July 2022 that the effect of an order was that he was not to contact Ms AM. He said he has not since that time. In respect of the contention that Mr Miglani had full control of her bank accounts, he responded, ‘then why would I have transferred my own funds to her personal account’ and that she had had her own personal bank account for her wages since May 2018.
In his evidence in response to a direct question from the Tribunal, Mr Miglani said he had not spoken to Ms AM since July 2022 because he respected what the police had told him. He denied that Ms AM had told him that he should ‘start a new life’, as she informed Horsham police.
Ms Opel referred to an amount of $160,000 being in a joint account, which Mr Miglani confirmed. She then asked if Ms AM’s wages had contributed to that amount. The Applicant responded, ‘It was all my earnings. My wife only started working in 2021 after Covid. I can provide bank statements.’
Ms Oppel asked if Ms AM was earning from 2021, where did her earnings go. Mr Miglani responded, ‘There was only one account with the CBA. I was contributing to the joint account. We were saving. How can I control another account? These allegations have already failed.’
Ms Oppel pointed out that the matter was not dismissed; the police withdrew. Mr Miglani responded: ‘My VLA duty lawyer said it should be dismissed so they withdrew, which is the same thing. It was all lies; they could not prove anything.’
In the decision record relating to the cancellation of Mr Miglani’s student visa, the following passage is relevant (SGD, p 626):
The applicant’s representative submitted during the hearing that the applicant transferred the $160,000 to his wife’s bank account because he had been advised by the migration agent now advising his wife that if his bank account showed such a large balance, he would not be granted work rights if he was granted a Bridging E visa. After the hearing, the applicant’s representative clarified this submission as follows (errors in the original):
My client is currently in detention and is suffering mentally, emotionally and physically. He is struggling to recall exact facts. As per the most accurate information his previous agent encouraged him to transfer all his money to his wife’s account so that he may apply for work rights by proving financial hardship. But he didn’t agree with the said proposal. In the meantime, his wife using her own password transferred a huge amount from their joint account to her personal account without his consent. The minute the transfer occurred, things started to change for him in terms of communication with his wife and previous agent. He had never imagined that such twists and turns would come up. His partner who had been supporting him throughout his bad phase suddenly ceased all forms of communications with him and since last few months he has been left by himself to suffer and face the consequences of visa cancellation.
The Tribunal has considered the quite broad definition in paragraph 4(1) of the Direction as to conduct that may constitute family violence. Ms AM told the police when she applied for the interim order that there had been no physical violence. The Respondent submitted that repeated phone calls from Mr Miglani to Ms AM before the order was imposed ‘may amount to stalking’. The Respondent also submitted that the evidence around the $160,000 amount may fit within the part of the definition of unreasonably denying the family member the financial autonomy that he or she would otherwise have had.
The Tribunal is not satisfied that the evidence before it establishes conduct within this primary consideration. The evidence about the money is quite inconsistent, but if it is accepted that Mr Miglani transferred $160,000 to his wife in order to assist him in the event he was granted a bridging visa, that does not constitute a denial of financial autonomy to Ms AM. Quite the contrary. Also relevant is that the police withdrew the matter.
The Tribunal finds that this primary consideration is not engaged and weighs neutrally.
Primary consideration: The strength, nature and duration of ties to Australia (paragraph 8.3)
The Direction requires decision-makers to consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have the right to remain in Australia indefinitely. Paragraph 8.3(3) of the Direction is ungrammatical, but the Tribunal gleans that the strength of any family or social links generally should also be considered.
The Applicant told the Tribunal he has one sibling, a brother who resides in India. His parents also reside in India, though they have recently been granted visitor visas and intend to come to Australia at the end of August. Mr Miglani said that his parents have had ‘discussions’ with Ms AM’s family and part of the purpose of their visit is whether they can support reconciliation between the Applicant and his wife. Other evidence before the Tribunal is that Ms AM intends to institute divorce proceedings as soon as the twelve-month separation period has elapsed.
While I accept that Mr Miglani holds out a plaintive hope about his marriage, there are no signs that Ms AM wishes to rekindle the relationship.
The Applicant said he had a cousin in Melbourne who is a teacher and who is also married to a teacher, and they have been here for ‘15 to 20’ years. He also said he had ‘two brothers-in-law’ living in Queensland. These must be from Ms AM’s side of the family.
Mr Miglani also said he had a large number of friends in Australia, some of whom he has known from childhood in India. Mr Karminder Singh gave evidence. He spoke about his various business ventures and said he would be willing to offer Mr Miglani work in Australia.
Ms Oppel noted that Mr Karminder Singh wrote in his statement (GD, p 101) that the ‘whole mishappening regarding the sexual misconduct and inappropriate behaviour has been very unfortunate, still it is unbelievable due to his genuine character.’ He was asked what he knew of the Applicant’s offending. He responded, ’Sexual misconduct within his family. With his wife, I believe.’
Ms Oppel asked Mr Karminder Singh whether Mr Miglani had admitted his guilt to him. He responded, “No. He said something happened and he wants to come out from it. He is very remorseful about what happened.”
Mr Jatinder Singh also gave evidence. When asked what he knew about the offending, he said, ‘He must’ve made a mistake. I’ve met his wife. She’s a beautiful woman. Must have been some mistake.’
In answer to a direct question from the Tribunal as to whether Mr Miglani had told him what he was accused of, Mr Jatinder Singh said, ‘Not really. I told him to get legal advice.’
The Tribunal makes no criticism of either witness, who voluntarily appeared in support of the Applicant. However, it was clear that neither Mr Karminder Singh nor Mr Jatinder Singh knew about the offending because Mr Miglani had not told them. In fact, Mr Karminder Singh wrongly thought it was conduct between the Applicant and his wife.
This significantly affects the weight the Tribunal can attribute to their evidence. In fact, two other statutory declarations made in support of Mr Miglani (GD, pp 104, 106) use exactly the same wording about ‘mishappening’ that Mr Karminder Singh used in his statement. This inclines me to the view that the Applicant suggested the wording. It is oblique, and does not indicate that the writer knew of the nature of the offending. Similarly, another person wrote in a statutory declaration that there had been an ‘unfortunate event’ (GD, p 99). It does contribute to an impression that the Applicant has been less than frank with those friends and acquaintances that he asked to provide statements of support.
The Applicant said he was offered positions in banks (because of his prior employment in India) but had been unable to accept them because of the nature of his visa. He told the Tribunal he had worked in a factory and in service stations. The Tribunal concludes that he has made some small contribution to the national economy.
The Tribunal finds that this primary consideration weighs very slightly in favour of not refusing to grant the visa.
Primary consideration: Best interests of minor children in Australia affected by the decision (paragraph 8.4)
This primary consideration is not relevant. Mr Miglani has no children in Australia and cited no children with whom he has any connexion in this country.
The Tribunal finds that this primary consideration weighs neutrally.
Primary consideration: Expectations of the Australian Community (paragraph 8.5)
Paragraphs 8.5(1) and (2) of the Direction state:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
…
The Direction highlights specific categories of identified offences: 8.5(2)(a) – acts of family violence; 8.5(2)(c) – commission of serious crimes against, inter alia, women and children; 8.5(2)(d) – commission of crimes against government representatives due to the positions they hold, or in the performance of their duties. The Australian community’s expectation is taken to be a ‘norm’. The word ‘norm’ means of a ‘standard’ or ‘pattern or type’. A past version of the Direction contained generally similar wording to paragraph 8.5 and was considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (‘FYBR’).
The Court held that it is not for a decision-maker to make a personal assessment of what the ‘expectations’ of the Australian community may be. The expectations articulated in the Direction are ‘deemed’; in other words, they are what the executive government has declared are its views, not what a decision-maker, including this Tribunal, may try to derive by some other evaluative or balancing process.
The current Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which acknowledges the approach taken by the plurality of the Court in FYBR. Therefore, while the expectations of the community are ‘deemed’ to weigh against an applicant, the relative weight will be affected by circumstances in the individual case.
The Tribunal considers that the weight of the deemed expectations of the community would incline against the Applicant. Although he had no prior criminal history, he sexually assaulted a child in his workplace and, having been warned by the police, went on to sexually assault an adult woman two months later. Having been placed on the sex offenders register, he then breached his reporting obligations on several occasions, and admitted his guilt for those non-compliance offences.

Paragraph 8.5(2)(c) requires the Tribunal to take into account whether the Applicant has committed serious crimes against women, children or other vulnerable members of the community. I am satisfied that the sexual assault offences against Ms FV (a child) and Ms SV (an adult woman) fall into this category.
The Tribunal finds that this primary consideration weighs against exercising the discretion to grant the visa.
Other consideration: Legal consequences of the decision (paragraph 9.1)
This part of the Direction concerns the liability for an illegal non-citizen to be removed from Australia and, if relevant, any protection finding in relation to a person which may invoke Australia’s international treaty obligations. There were no submissions from the parties that this was relevant. If the Applicant is not granted the visa, he would return to India, where his brother and his parents live.
The Tribunal finds that this consideration weighs neutrally.
Other consideration: Extent of impediments if removed (paragraph 9.2)
The part of the Direction requires decision-makers to consider the extent of impediments a non-citizen may face if removed from Australia to his home country in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of the country. Mr Miglani provided medical records from detention. He is generally in good health, although suffers from some anxiety, largely linked (and understandably so) to uncertainty about his visa outcome. Before he came to Australia he worked in banks in India. He provided some testimonials from colleagues in banking in that country who attested to his professional conduct at work. He has a Bachelor of Commerce degree and a Master of Marketing and International Business (GD, p 112), which the Tribunal considers would stand him in good stead to resume a career in the financial sector, if he were repatriated. The Tribunal notes that the Applicant’s father (who listened to the hearing from India) is a respected retired bank manager.
The Tribunal does not identify any particular impediment that Mr Miglani would face if he returned to India.
The Tribunal finds that this consideration weighs neutrally.
Other consideration: Impact on victims (paragraph 9.3)
The Tribunal interprets this part of the Direction as requiring some evidence of the impact on a victim (being a member of the Australian community) of a non-citizen’s offending in a case where the victim has knowledge of the migration implications for the non-citizen. There was no evidence before the Tribunal of any subsequent views of Ms FV or Ms SV.
The Tribunal finds that this consideration weighs neutrally.
Other consideration: Impact on Australian business interests (paragraph 9.4)
The Tribunal must consider any impact on Australian business interests if the Applicant is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under s 501 would significantly compromise the delivery of a major project or important service in Australia.
There is no indication this is relevant to Mr Miglani. The Tribunal finds that this consideration weighs neutrally in this assessment.
SUMMATION - SHOULD THE VISA BE REFUSED?
Of the five primary considerations in the Direction, the Tribunal has found that the family violence primary consideration is not relevant. The primary consideration relating to the protection of the Australian community has been found to weigh heavily in favour of refusing to grant the visa, because of the shifting evidence of the Applicant and what the Tribunal finds is his inability, or unwillingness, to squarely face the circumstances of his offending.
The primary consideration relating to the strength of ties with Australia weighs only very marginally in favour of not refusing to grant the visa. The primary consideration relating to the best interests of minor children in Australia is not relevant. The primary consideration relating to the expectations of the Australian community weighs in favour of refusing to grant the visa.
Of the other considerations set out in the Direction, none has been found to be engaged and each therefore weighs neutrally. The Tribunal is not constrained only by the considerations stipulated in the Direction but does not find any other relevant matter is germane to this merits review.
The Tribunal, in weighing all the relevant considerations, has decided that the discretion to refuse to grant the visa should be exercised. The conduct of the Applicant in his evidence during the hearing leads to significant questions of credibility. Despite pleading guilty at the Magistrates’ Court to three charges (including one involving a child), and only appealing to the County Court in relation to the sentence imposed, Mr Miglani presented as a man largely in denial and, when not in denial, prevaricating or minimising his criminal conduct. He does not show insight into his offending, which amplifies the possibility that he might reoffend in the community.
Having found that Mr Miglani fails the character test by operation of law, I am also satisfied that the discretion to refuse to grant the visa should be exercised.
DECISION
Pursuant to s 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision under review.

I certify that the preceding 114 (one hundred and fourteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

...................[SGD]...... ..............
Associate
Dated: 23 August 2023

Date of hearing:
15 and 16 August 2023

Applicant:

Self-represented

Advocate for the Respondent:

Ms Catherine Oppel

Solicitors for the Respondent:

The Australian Government Solicitor

Annexure
R1 – G-Docs (G1 – G5, Paged 1 - 472)
R2 – Supplementary G-Docs (SG6 – SG22, Paged 473-671)
A1 – Client Incident Reports
A2 – Statement of Sunny Miglani dated 18 July 2023
A3 – Applicant's Tender Bundle Part 1 paged 1 - 331
A4 – Applicant's Tender Bundle Part 2 paged 1 - 38
A5 – Applicant's Tender Bundle Part 3 paged 1 - 31
A6 – 1st Submission with all Annexures dated 10 August 2023
A7 – 2nd Submission - Reply to the Delegate's "Statement of Reasons" for Refusal of Visa 10 August 2023
A8 – Character Reference Letter favouring Sunny Miglani given by Mr Andrew Whitcombe dated 8 August 2023
A9 – Copy of Letter from the AAT regarding Summons Issued to Produce Documents dated 6 July 2023
A10 – Copy of Summons Issued to County Court by AAT dated 6 June 2023
A11 – Copy of Summons Issued to Victoria Police by the AAT dated 5 July 2023
A12 – Directions Issued to the Minister by the AAT on 27 June 2023
A13 – Email Reminders sent to AGS by the Applicant 17 July 2023
A14 – Email Reminders sent to Decision Maker at VACCU by the Applicant 5 July 2023
A15 – Email Reminders sent to Lisa K (Tribunal officer) at AAT by the Applicant 6 July 2023
A16 – Email Reminders sent to Ms Mary at VACCU by the Applicant 10 August 2023
A17 – Miglani and Minister for Immigration, Citizenship and Multicultural Affairs - General Correspondence
A18 – NIL Criminal History of Sunny Miglani Declared by Victoria police - undated
A19 – Submission about ACIC Check Result Report and Direction 99 Reply Submitted to VACCU on 04042023
A20 – Video of Ms West Part 1 as of 08 May 2019
A21 – Video of Ms West Part 2 as of 08 May 2019
A22 – Video of Ms West Part 3 as of 08 May 2019
A23 – 3rd Submission – Applicant's Reply to Statement of Facts, Issues and Contentions of the Respondent dated 4 April 2023
A24 – 4th Submission – Applicant's Reply to Statement of Facts, Issues and Contentions of the Respondent dated 11 August 2023

Date of hearing:	15 and 16 August 2023
Applicant:	Self-represented
Advocate for the Respondent:	Ms Catherine Oppel
Solicitors for the Respondent:	The Australian Government Solicitor