Miglani (Migration)

[2022] AATA 4835

Miglani (Migration) [2022] AATA 4835 (30 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sunny Miglani

REPRESENTATIVE:  Mr Harpal Singh Bajwa, Viva Immigration Pty

CASE NUMBER:  2110159

HOME AFFAIRS REFERENCE(S):          BCC2021/1029325

MEMBER:Michael Ison

DATE:30 November 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 30 November 2022 at 5:28pm

CATCHWORDS
MIGRATION – cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa –criminal convictions – financial dispute with his wife  - breakdown of his relationship with his wife – mental health – a serious sex offender –no compelling reason to remain in Australia– decision under review affirmed

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994 (Cth), r 2.43

STATEMENT OF DECISION AND REASONS

application for review

1. This is an application for review of a decision dated 6 August 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

   Background

2. The applicant in this review is Mr Sunny Miglani, who is a 37-year-old Indian national. Mr Miglani is referred to as the applicant in these reasons for decision. The Tribunal discussed the applicant’s immigration history in Australia with the applicant, which may be summarised as follows.

3. The applicant first arrived in Australia on 26 June 2017 as the holder of a Visitor (Class FA) (Subclass 600) visa and returned to India on 13 July 2017. On 26 April 2018 the applicant returned to Australia on a Visitor visa that was valid to 26 July 2018.

4. On 18 May 2018 the applicant applied for a Student (Class TU) (Subclass 500) visa as the secondary visa applicant in the primary application of his wife. The applicant was granted a (dependent) Student visa on 18 June 2018.

5. On 1 September 2020 the applicant applied for a Skilled (Class VC) (Subclass 485) visa, again as the secondary visa applicant in the primary application of his wife. The applicant told the Tribunal that his application for the Subclass 485 visa has not been finally determined by the Department yet.

6. On 6 August 2021 the applicant’s Student visa was cancelled under s.116(1)(g) of the Act and r 2.43(1)(oa) of the Migration Regulations 1994 (the Regulations).

7. On 10 August 2021 the applicant applied for a Bridging E (Class WE) (Subclass 050) visa and told the Tribunal that his application had been refused because he provided insufficient documentation to support his application.

8. The applicant was remanded in custody on 30 May 2022 and subsequently sentenced to one month imprisonment on 9 June 2022. Upon the applicant’s release from prison on 28 June 2022 the applicant was immediately detained in the Melbourne Immigration Transit Accommodation (MITA), which is immigration detention centre. At time of this decision, the applicant remains detained at MITA.  

   The primary decision of a delegate of the Minister

9. The applicant provided the Tribunal with a copy of the primary decision.

10. The delegate cancelled the visa under s 116(1)(g) and r 2.43(1)(oa) on the basis that on 24 June 2021 the applicant was convicted in the Magistrates’ Court of Victoria at Melbourne of two charges of sexual assault and one charge of false imprisonment.

11. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

    Postponement of the Tribunal hearing scheduled for 18 October 2022

12. This matter was assigned to the Tribunal as presently constituted on 1 October 2022. On 3 October 2022 the Tribunal invited the applicant to attend a hearing on 18 October 2022. On 9 October 2022 the applicant requested that the hearing be postponed. The applicant wrote that his criminal law lawyer was overseas at the time and he was therefore unable to provide the Tribunal with information it had requested about his criminal law matters in its hearing invitation. Despite the applicant being detained in immigration detention, the Tribunal agreed to postpone the applicant’s hearing.

    Tribunal hearing

13. On 13 October 2022 a rescheduled hearing invitation was sent to the applicant.

14. The applicant appeared in person before the Tribunal on 17 November 2022 to give evidence and present arguments.

15. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. 

16. The applicant was represented in relation to the review by his migration agent, Mr Harpal Singh Bajwa. Mr Bajwa is referred to in these reasons as the applicant’s representative or the representative. The representative attended the Tribunal hearing.

17. At the commencement of the Tribunal hearing the Tribunal explained the role of the interpreter as an aid to communication and asked the applicant whether he could understand the interpreter and whether he had any objection to the interpreter retained by the Tribunal. The applicant indicated he could understand the interpreter and had no objection to the interpreter retained by the Tribunal.

18. The Tribunal then explained to the applicant the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal also explained the role of the applicant’s representative during the hearing. The Tribunal informed the applicant that it would seek submissions from the applicant and his representative toward the end of the Tribunal hearing on any matter they considered relevant to the applicant’s review.

    Pre-hearing submissions

19. The applicant’s representative provided the Tribunal with extensive submissions prior to the Tribunal hearing. These submissions and the documents attached to them are set out in Attachment 1 to these reasons for decision.

20. The Tribunal also received various other correspondence from the applicant and his representative in relation to arranging the applicant’s participation in the Tribunal hearing and other administrative matters.

    Post-hearing submissions

21. On 25 November 2022 the Tribunal received a seven-page submission from the representative on behalf of the applicant.

    Tribunal decision

22. The Tribunal has had regard to the oral evidence of the applicant, all of the information in the oral and written submissions provided to the Tribunal on the applicant’s behalf and to the information in the Tribunal’s file and the Department’s file provided to the Tribunal. 

23. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

    consideration of Claims and evidence

24. Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1)(g) and r 2.43(1)(oa). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    Does the ground for cancellation exist?

    Section 116(1)(g) - prescribed ground

25. A visa may be cancelled under s 116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r 2.43 of the Regulations. In the present case, the ground in r 2.43(1)(oa) is relevant.

26. Regulation 2.43(1)(oa) provides:

    (1)For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:

    …

    (oa)  in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa - that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any));

27. The applicant conceded that he has been convicted of three criminal offences in Victoria on 24 June 2021 and that the ground for cancellation is made out. The applicant pleaded guilty to two charges of sexual assault with the assaults occurring on 11 March 2019 and 8 May 2019 and one charge of false imprisonment which also occurred on 8 May 2019. The sentence imposed on the applicant was a concurrent term of six months imprisonment, an 18-month Community Corrections Order, with specific conditions and registration as a sex offender with specific reporting and other obligations for a period of eight years.

28. The applicant appealed his sentence but not his guilt to the County Court of Victoria. On 13 October 2021 the County Court of Victoria confirmed the applicant’s convictions on each of the three criminal charges but reduced the applicant’s sentence to a Community Corrections Order, with specific conditions including performing 200 hours of unpaid community work, for a period of 30 months ending on 12 April 2024 and being registered as a sex offender for a period of eight years. In short, the County Court set aside the term of imprisonment imposed on the applicant. The applicant provided evidence he has completed his unpaid community work obligations, which the Tribunal accepts.

29. The applicant provided court, Victoria Police and other documents showing that since his initial criminal convictions for the above matters he has pleaded guilty in the Magistrates’ Court at Horsham on 9 June 2022 to:

    ·one charge of failing to report the location of a child contact;

    ·four charges of failing to report changes to his employment details; and

    ·five charges of failing to report changes to his internet user names

    as required under his registration as a sex offender.

30. The applicant was convicted on each of the 10 charges and was sentenced to, and served, a term of one month in prison.

31. As a result of the above ten convictions the applicant was charged on 12 July 2022 with failing to comply with the conditions of his Community Corrections Order. That charge was found proven in the County Court of Victoria on 2 September 2022 but dismissed.

32. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(g) and r 2.43(1)(oa) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

33. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedural Instruction, formerly part of the Department’s Procedures Advice Manual, titled ‘General visa cancellation powers’. The Tribunal has considered all of the applicant’s circumstances and uses the headings from the Department’s Procedural Instruction for convenience only.

    The purpose of the applicant’s travel to and stay in Australia, including whether the applicant has a compelling need to or remain in Australia

34. The applicant’s evidence is he and his wife came to Australia on Tourist visas in July 2017 to visit family in Queensland and again in April 2018 after which the applicant’s wife decided to study in Australia, leading to the application for Student visas in May 2018. The applicant’s evidence is his wife has completed a Diploma of Cookery and then worked in a restaurant. While no supporting documentation was provided the Tribunal accepts this evidence. In September 2020 the applicant’s wife applied for a Subclass 485 Temporary Graduate visa with the applicant named as a secondary applicant.

35. The applicant’s evidence is he and his wife married in India in February 2016 as an arranged marriage, his wife’s mother died when she was 11 and her father did not cope with his grief and abandoned her and her brother when his wife was 16. The applicant’s wife and her brother lived with relatives after their father left, but were poorly treated, shown no affection and she raised her brother. The applicant’s wife was talked about by her family as being without parents and it was embarrassing that her parents were unable to make the usual contribution to her wedding to the applicant, the costs of which were borne by the applicant’s parents. This is the context in which the applicant decided to support his wife’s desire to study and work in Australia.

36. The applicant’s evidence is that he has both a Bachelor of Commerce and Master of Business Administration in India and had worked in management positions in banks in India with male and female staff reporting to him without incident. He told the Tribunal he comes from an educated family with his father having worked for a bank in India for 40 years and having held very senior positions. The applicant has a brother in India who also has a managerial job. The applicant’s evidence is that in addition to accompanying and supporting his wife in her studies, it had long been a childhood dream for him to come to Australia to study and secure his future and he would like to do further study in Australia, probably in accounting.

37. The applicant also told the Tribunal he wants to stay with his wife in Australia as they had not spent a day apart from each other since being married up until the applicant was imprisoned and subsequently detained in immigration detention. 

38. The applicant has not communicated with his wife since 11 July 2022 as his evidence is that his wife, through Victoria Police, obtained a full non-contact interim intervention order naming the applicant as the respondent. The Tribunal has been provided with a copy of documents filed by Victoria Police in support of a final order being made and the applicant’s documents filed in response to those documents. The documents filed by Victoria Police state that an interim order naming the applicant as the respondent and his wife as the protected person was made on 27 July 2022. The Tribunal was not provided with a copy of the interim intervention order but accepts this evidence.

39. The applicant believes his wife has been motivated to pursue the intervention order because of advice from a previous migration agent (not the representative), who continues to advise her, that her application for the Subclass 485 visa could be refused if the applicant’s Student visa is cancelled.

40. There is also a financial dispute between the applicant and his wife disclosed in the court documents filed in relation to the intervention order application and raised by the applicant in his oral evidence and the representative in oral and written submissions. The applicant alleges his wife fraudulently transferred AUD160,000 of his money from their joint bank account into her own bank account, an account the applicant did not know about and one of the reasons she has applied for the intervention order is to keep this money.

41. In court documents filed by Victoria Police on 28 September 2022 in relation to the intervention order the applicant’s wife denies these allegations in the following terms, with the letters ‘afm’ meaning affected family member being the applicant’s wife (errors in the original):

    The afm advised that she is still supportive of a full FVIO, however she will be activating a Lawyer to organise the divorce after 12 months of separations and both parties Civil matters.

    … The afm does not want anything further to do with the respondent. …

    The afm advised that the allegations made about her withdrawing $160,000 were totally untrue. The afm stated that the respondent has full control of their Bank accounts, and it was him that transferred the money in question. The afm advised that she has created her own bank account for her wages so the respondent cannot control her earnings. The afm stated that she wants to get on with her life without being harassed or contacted by the respondent.

42. 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 twist and turns would come up. His partner who had been supporting him throughout his bad phase suddenly ceased all forms of communication with him and since last few months he has been left by himself to suffer and face the consequences of visa cancellation.

43. The applicant told the Tribunal that his wife and he had up until 11 July 2022 been on good terms and happy together, prior to the application for the interim intervention order. The applicant told the Tribunal there has been no violence between him and his wife and the Tribunal accepts this as this is confirmed in the court documents. The court documents indicate the applicant’s wife has stated she had been harassed by the applicant and his friends after she told him their relationship was over. The applicant denies harassing his wife and provided letters of support from his wife to the Magistrates’ Court dated 24 November 2020 and to the County Court of Victoria dated 7 October 2021 as evidence of her previous support for him.

44. The applicant’s evidence is he remains hopeful of reconciling with his wife who he believes is not aware she is being manipulated by the unnamed migration agent. The applicant believes if his Student visa is not cancelled he will be able to explain the situation to his wife through mediation and they will be able to reconcile, rebuild their relationship and his wife will be happy.

45. The Tribunal did not have the benefit of hearing from the applicant’s wife and draws no adverse inferences and makes no adverse findings against the applicant in this regard, given there is a current full non-contact interim intervention order in place. That interim order prevents the applicant having any contact with his wife, or using anyone else to contact her, pending the outcome of the application for the final order.

46. The documents filed by Victoria Police in support of the application for a final intervention order indicate as recently as late September 2022 the applicant’s wife confirmed to police she does not wish to reconcile with the applicant and intends to divorce him. Those documents also reveal the applicant’s wife has a number of other significant grievances with the applicant’s behaviour. The Tribunal has not reproduced those grievances in these reasons because they contain what the Tribunal considers unproven allegations against the applicant.

47. Even if a final intervention order is not made or the applicant’s visa is not cancelled it is not known by the Tribunal whether the applicant’s wife would then be prepared to reconcile with him.

48. In these circumstances the Tribunal finds that the applicant’s purpose in travelling to and staying in Australia to support his wife in her study and work no longer subsists and this weighs in support of the cancellation of his visa.

1. The Tribunal notes that the applicant has ongoing legal proceedings in relation to his wife, but the Tribunal does not consider these proceedings provide a compelling reason for the applicant to remain in Australia. If the applicant was to depart Australia – voluntarily or otherwise – then the applicant’s wife would not need to be protected by an intervention order and the reason for those legal proceedings would no longer exist.

2. In these circumstances the Tribunal also finds that the applicant does not have a compelling reason to remain in Australia and this also weighs in support of the cancellation of his visa.

3. The Tribunal finds that this consideration overall weighs in support of the cancellation of the applicant’s visa and in the applicant’s circumstances, gives this consideration great weight.

   The extent of the applicant’s compliance with their visa conditions

4. There is no information before the Tribunal that the applicant has been found to have breached any condition of a visa he has held.

5. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration some weight.

   The degree of hardship that cancellation may cause (financial, psychological, emotional or other hardship) to the applicant and any family members

6. The applicant told the Tribunal if he has to return to India his reputation will be tarnished and his life will be finished as he will not be able to get a good job again and then will not be in a position to look after his aged parents. The applicant expressed concern that his father, who has a heart condition, would be greatly distressed by the applicant returning and this could cause his premature death.

7. A report written by Mr Bernard Healey, clinical psychologist, dated 21 July 2021 states:

   [The applicant’s] mother is aged 62 and suffers from some arthritic problems, engages in home duties and was viewed as a very caring person. His father is aged 69 and some 8 years ago through heart failure he underwent the insertion of stents in coronary arteries.

8. The applicant told the Tribunal he is concerned his parents’ health would be adversely affected if they find out his visa is cancelled. The applicant is also concerned his parents will suffer from a tarnished reputation and standing in the community if the applicant has to return home, which would have a significant emotional impact on them given the applicant is from an educated family and his father had a 40-year career working for a bank, including in senior positions.

9. The Tribunal accepts this evidence and finds that cancellation of the applicant’s visa would cause his parents significant emotional hardship and also potentially some financial hardship. The extent of financial hardship the applicant’s parents may experience is unknown as there is little information before the Tribunal about their financial circumstances. The applicant did give evidence that his parents spent their savings on the applicant’s February 2016 wedding to his wife (in part because his wife had no parents to contribute to the cost of the wedding).

10. The applicant also told the Tribunal that he will be broken, there will be little purpose to his life and he will “finish myself”. The applicant told the Tribunal he has done so much good in his life, that he worked very hard with multiple jobs and shifts to establish a life for his wife and himself in Australia, and all that work would be wasted if he has to return to India. The applicant clarified that he has no intention and would not harm anyone else but his aims in life would be finished.

11. Adding to the applicant’s anguish is the relatively recent news his wife is seeking a final intervention order to prevent him from communicating with her and that she wants to divorce the applicant. This loss for the applicant has been exacerbated by his claims that while he has been in prison and immigration detention $160,000 has been transferred from his joint bank account into a bank account controlled by his wife and those funds are the proceeds of years of work by the applicant.

12. The applicant’s financial dispute with his wife has been addressed in more detail in paragraphs 40 to 43 of these reasons, but the Tribunal accepts these issues are causing the applicant additional emotional hardship and contributing to his psychological hardship.

13. The applicant blames the cancellation of his visa by a delegate of the Minister and his ongoing detention in immigration detention for the sequence of events that includes the breakdown of his relationship with his wife and the applicant not being able to access his savings that he claims amount to $160,000.

14. The applicant told the Tribunal he believes that if the Tribunal sets aside the cancellation of his Student visa then he will be able to reconcile with his wife and they would be able to start their lives anew. The Tribunal accepts from the documents provided to the Tribunal by the applicant that up until as recently as June or July 2022 the applicant’s wife appeared to be supportive of him and their relationship.

15. The Tribunal makes no finding about the applicant’s financial dispute with his wife or whether the applicant’s hope that they may reconcile are realistic or not. However, the Tribunal does accept that the applicant sees these matters as inextricably linked to the cancellation of his visa and these matters have caused him a great deal of emotional hardship and potentially great financial hardship.

16. The Tribunal was provided with reports of the following mental health assessments and psychological counselling of the applicant (and at times, with his wife):

    ·Dr Danny Sullivan, consultant forensic psychiatrist, dated 29 July 2021;

    ·Mr Bernard Healey, clinical psychologist, dated 21 July 2021, 31 August 2021, an undated report written in September 2021 and 15 August 2022;

    ·Dr Sridevi Kolli, clinical psychologist at Psychology 4 Change Pty Ltd, dated 21 September 2021; and

    ·A Serco Individual Management Plan Review dated 9 November 2022.

17. Dr Sullivan’s report also refers to other mental health assessments of the applicant that were undertaken as part of the criminal justice process.

18. The applicant has been consistently diagnosed as suffering major depressive disorder with anxious distress at moderate to severe level leading to the applicant being prescribed anti-depressant medication on 13 September 2021. In his report, Dr Sullivan noted (emphasis in the original):

    [51] Since moving to Australia he has worked in unskilled positions. He reports stress in his
    relationship and sexual difficulties. He faces family pressure to have children, financial
    pressures and social isolation. He has developed clinically significant mood disorder, best
    characterised in the Diagnostic and Statistical Manual of Mental Disorders - 5th edition (DSM-5) as major depressive disorder with anxious distress. This is of moderate-severe level at present. He has not undergone any treatment.

19. The applicant also provided the Tribunal with 90 pages of reports of his medical treatments and medications while detained in immigration detention, including an assessment by a psychiatrist, Ms Jillian Spencer, on 3 July 2022. The reports date from 28 June 2022 to 9 November 2022. Those reports reveal the applicant has been counselled and received medication to assist with his ongoing diagnosis of depression and difficulty sleeping. In one report dated 21 July 2022 a counsellor who conducted a mental health consultation with the applicant noted (errors in the original):

    Presenting with symptoms of depression, A person with poorly managed emotions in the past due to non-compliant to community standards, victim of not understanding proper strategies to look after his emotions and separation withdrawals, Constantly in pain (psychologically) due to his past events hence ongoing low mood, anger and somatic complains.

20. The same counsellor made an identical note in reports of mental health counselling sessions conducted with the applicant on 28 July 2022, 9 August 2022, 18 August 2022, 13 September 2022 and 10 October 2022.

21. A mental health nurse wrote in a report dated 26 July 2022 (errors and emphasis in the original):

    Impression
    presenting with emotional dysregulation and adjustment difficulties in the context of being at MITA. Psychosocial stressors, poor sleep, heightened stress and worries about ;uncertain future, ;and poor relationship maintenance exacerbating the issues. ; ;

22. The Tribunal accepts this evidence about the applicant’s mental health over time and finds that the cancellation of the applicant’s visa would cause him great psychological hardship.

23. The applicant expressed a fear to the Tribunal that if his visa is cancelled and he has to return to India his wife may tell her brother, who is now 24 or 25 years old, and her brother may bash him in India. There is no evidence before the Tribunal to support these concerns.

24. The applicant, through written statements and submissions, also expressed a fear that if his visa is cancelled and he returns to India as a serious sex offender his life may be in danger. In a submission dated 31 July 2021 responding to the notice of intention to consider cancellation of a visa, the applicant’s then migration agent (not the representative) wrote (errors in the original):

    15. Visa holder’s visa cancellation and upon his return to home country would be treated as serious sex offender. This is going to be great deal of difficulty for the visa holder to return home and live his normal life. India treats sex offenders very seriously and his life and well-being could be in danger upon his return to India.

    16. visa holder will face discrimination from family and friends and even from community backlash upon return to India as family is not going to support when he returns back to India and there is great deal of possibility that visa holder may be tortured or even beaten at some instances.

25. No supporting information in relation to these claims has been provided to the Tribunal. There is insufficient evidence before the Tribunal for it to make any findings in relation to the applicant’s claim that cancellation of his visa could place his life in danger or expose him to the risks of being beaten or tortured in India. The Tribunal does accept that if the applicant’s community becomes aware his visa has been cancelled and why it has been cancelled then this could cause embarrassment and resulting social hardship for the applicant and his family.

26. The Tribunal finds that the cancellation of the applicant’s visa would cause him great psychological and emotional hardship, and this hardship would be further exacerbated if the protective factor of the applicant remaining hopeful of reconciling with his wife proves to be ill-founded.

27. The applicant also told the Tribunal that his brother who works in India and is married with a child would be affected by the cancellation of his visa because his reputation would also be tarnished by the applicant’s return in circumstances where the applicant’s visa had been cancelled. The applicant told the Tribunal his brother would not talk to him or support him financially if the applicant returned to India in such circumstances. The Tribunal accepts that the cancellation of the applicant’s visa may cause his brother some emotional hardship.

28. The applicant also told the Tribunal his cousins and friends in Australia regard him highly, have offered to support and employ him and they would be very sad if his visa is cancelled. The applicant provided statutory declarations attesting to his good character and being deserving of given a second chance from Ms Aparna Monga, Mr Fida Hussain, Mr Jaideep Singh, Mr Jatinder Singh, Mr Karminder Singh and Mr Parveen Bansal. The statutory declarations were each declared in November 2022 except for Mr Bansal’s which was declared on 24 October 2022. The Tribunal accepts that each of the declarants consider the applicant a friend and good person and believe his visa should not be cancelled. The declarations are each written using dot points and many similar phrases and expressions in a manner indicating they may not have been individually written by each declarant. However, the Tribunal gives the declarations some weight as evidence of the support in the community for the applicant and accepts the declarants may suffer some short-term emotional hardship if the applicant’s visa is cancelled.

29. The applicant also told the Tribunal his wife may suffer hardship given she has always relied upon him and is now living alone in the community and is being misguided by a migration agent. As the applicant has not spoken to his wife since 11 July 2022 and the applicant’s wife has told Victoria Police she intends to divorce the applicant as part of her evidence in support of seeking a final intervention order against the applicant, the Tribunal does not accept cancellation of the applicant’s visa would cause his wife hardship.

30. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and in the applicant’s circumstances the Tribunal gives this consideration great weight.

    The circumstances in which the ground for cancellation arose. Were there any extenuating circumstances beyond the applicant’s control that led to the ground for cancellation existing? As a general rule, a visa should not be cancelled if the circumstances in which the ground for cancellation arose were beyond the applicant’s control.

31. The circumstances in which the ground for cancellation arose may be summarised as follows:

    ·The offence that occurred on 11 March 2019 arose when the applicant was working as a service station console operator and induced a 16-year-old girl to join him behind the counter with an offer of free drinks and chocolate bars. The applicant then hugged the victim twice without her consent, kissing her on the cheek and forehead before placing his hand on the victim’s breasts again without her consent;

    ·The offence that occurred on 8 May 2019 arose when the applicant was working as a service station console operator at the same service station as the previous incident and induced a 37-year-old woman to join him behind the counter with an offer of free tobacco products. Once the victim was behind the counter the applicant, without her consent, put his right arm around the victim’s waist, rubbed his hand all over her bottom and asked her if she wanted to have sex with him. When the victim reacted angrily and went to leave the area behind the counter the applicant blocked and prevented her exit resulting in a tussle between the applicant and victim before the applicant allowed her to leave;

    ·The offences that occurred between March and May 2022 related to the applicant and his wife moving to Horsham in December 2021 to pursue employment opportunities there and the applicant subsequently admitting to having overnight stays with a female friend and her young child, having four different jobs and opening WhatsApp, Instagram, TikTok, SnapChat and gmail accounts without informing the Victorian Police Sex Offender’s Registry of these changes as he is required to under the terms of his ongoing registration as a sex offender in Victoria.

32. The applicant provided the Tribunal with a copy of a letter of apology dated 7 October 2021 that he wrote and says he gave to Victoria Police to apologise to the police and his victims in relation to the first two incidents. The applicant also explained those incidents in his oral evidence and written submissions to the Tribunal. The applicant’s evidence is that no violence was involved, the incidents arose in part due to communication issues and the applicant misinterpreting his victims friendliness, he had gotten to know the victims over a period of time as regular customers and they knew and trusted him, that he meant them no harm and that he has otherwise been a hard worker and of good character. Having read the victims witness statements, the Tribunal did not find the applicant’s explanation of the circumstances that led to the cancellation of his visa to be convincing.

33. In his evidence to the Tribunal the applicant tried in the Tribunal’s view to minimise the nature of the assaults rather than inform the Tribunal of any extenuating circumstances. The applicant did this by describing the assaults in a very different manner to the descriptions contained in the victims witness statements. For example, the applicant’s evidence is he only brushed the 16-year-old girl’s right breast accidentally with the back of his hand and immediately apologised. Similarly, the applicant’s evidence is he asked to hug his 37-year-old victim, the hug was consensual but while hugging his fingertips “might have touched her buttock”. The Tribunal did not find this evidence plausible or convincing in the context of the detailed witness statements each victim made and the subsequent criminal convictions of the applicant.

34. The applicant was assessed by Ms Jillian Spencer, psychiatrist, in immigration detention on 3 July 2022, who noted (errors and emphasis in the original):

    Forensic history:
    Convicted of false imprisonment and two counts of indecent assault. Two different victims, one was age 15 and one aged 37, occurred in 2018 and 2019. Says he was upset and new in Australia. Was working at a petrol station, night shift. Very tired, stressed and depressed, didn’t have much English. Due to working such long hours. The girls came into the petrol station and were very friendly. Says one charge related to him holding a girl’s hand and telling her to come inside. Touched her breast outside her shirt. She said ‘no’; suddenly and he said sorry and went home. Then 13 months later, another girl came inside his petrol station and he asked her to come in. He asked her to hug him, she said no. She accused him of touching his bottom but he denies he did this. ; ; ;
    Sentenced to a Community Corrections Order with 200 hours of community service and a 24-week sex offender program. Completed 12 weeks.

35. The Tribunal accepts that the applicant was severely stressed and depressed at the time of being detained in immigration detention which likely affected his recall of ages, dates and the timing of events.

36. In an undated 10-page typed statement provided to the Tribunal on 16 November 2022, the applicant stated (errors in the original):

    I arrived in Australia in April 2018 and I was working with my employer for a considerable period of time, during which 2 incidents happened, one after the other. 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 till 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 forcefully dragged into the backyard.

37. The Tribunal explained to the applicant during the discussion about this consideration that:

    ·the Tribunal was seeking to understand what caused the applicant to act towards his victims as he did;

    ·this would enable the Tribunal to assess if there were any extenuating circumstances beyond the applicant’s control involved;

    ·touching someone without their consent particularly, but not only, in a sexual manner, is an act of violence;

    ·the offence of false imprisonment does not require violence to be involved but merely requires a person to prevent another person from leaving a space they wish to leave when they wish to leave it;

    ·it is not the Tribunal’s role to punish the applicant for his criminal offending because that is the role of the criminal justice system; and

    ·the notion of punishment is not relevant to the Tribunal’s consideration of its discretion whether to cancel the applicant’s visa or not.

1. The applicant provided detailed accounts of what sequentially happened in the first two incidents but provided little insight into why he acted the way he did each time. The Tribunal had a short adjournment of the Tribunal hearing of its own motion to enable the applicant’s representative to also explain to the applicant the purpose of the Tribunal’s questioning and the focus of this consideration.

2. In the detailed discussions with the applicant following the adjournment the applicant told the Tribunal that in addition to being new to Australia and with limited English, his wife and he had less interaction over time, consistent with his earlier evidence that his wife studied during the morning and day and he worked in the evening and at night, and they rarely saw each other, and this also led to a loss of intimacy in their relationship. The applicant explained that when his victims were friendly towards him, he liked that, he liked to talk to them as he did not get to talk to his wife much and he never intended to harm anyone and is not like that and is not a bad person.

3. The mental health assessments of the applicant by Dr Sullivan, psychiatrist and Mr Healey, psychologist do refer to issues in the applicant’s intimate life with his wife caused by their study and work patterns and lack of time together, which were in turn contributed to by their financial stress upon their arrival in Australia. Mr Healey reports that this diminished intimacy over time also caused the applicant and his wife additional stress. Mr Healey found the applicant to be naïve in matters of intimacy with little preparation for intimate marital involvement and to have a poor understanding of the functioning of a woman and at times unrealistic expectations. The applicant was also noted by Dr Sullivan as reporting considerable pressure from his family and others to have children, which the applicant also found stressful.

4. Dr Sullivan reported (errors in the original):

   [53] … Mr Miglani impresses as naïve and sexually inexperienced. It appears that the offending related to sexual problems in his relationship, loneliness and misinterpretation of social friendliness as sexual availability. Prominent in his behaviour was a poor understanding of social boundaries.
   …
   [56] At the time of the offences, it is possible that there was mild mood disorder present, but it is not clear that this was causally associated with the offending; rather, the presence of mood disorder may have been the cause of sexual difficulties with his wife which was putatively associated with his behaviour towards the victims.
   …
   [59] The STATIC-99 is an actuarial instrument designed to assist in the prediction of sexual and violent recidivism for sexual offenders. The instrument scores static, unchanging risk factors, and has been validated in Australia and many other countries.
   [60] Mr Miglani scores in the moderate-low risk category on the STATIC-99. The risk of recidivism for people in this category is lower than that expected of others convicted of sexual offences…
   [61] I also applied the RSVP (Risk for Sexual Violence Protocol), a structured professional judgment instrument which incorporates both static and dynamic risk variables associated with sexual re-offending. The RSVP is one of the most robust predictors of sexual reoffending risk. The RSVP categorises 22 items into five domains. These are scored for past evidence and recent evidence (in the last year).
   [62] Mr Miglani has no past evidence of risk factors. In the recent past he shows low-moderate risk loading in the domains of psychological adjustment, mental disorder, sexual violence history and manageability, and high loading in the domain of social adjustment. The risk factors appear predominantly associated with his mood disorder and social isolation and most have developed since being charged rather than preceding the offending behaviour. All risk factors are potentially addressed through mental health treatment.
   [63] Taking into account both the STATIC-99 and the RSVP, I consider that Mr Miglani’s overall sexual offending risk is in the low range. This reflects the significant effect of being charged, confronting him to reflect on his behaviour, and the sobering effects of being convicted. Furthermore he has received clear feedback from his wife about her distress and condemnation of the behaviour, and holds profound shame lest his family in India find out.

5. The Tribunal notes Dr Sullivan’s findings that “it appears” the applicant’s “offending related to” sexual problems in his relationship, loneliness, misinterpretation of social friendliness as sexual availability and a poor understanding of social boundaries. The Tribunal does not consider these apparent causal or contextual factors to the applicant’s sexual assaults as identified by Dr Sullivan and Mr Healey to be extenuating circumstances beyond the applicant’s control in the manner envisaged by this consideration. The Tribunal has formed this view in part because when the applicant pleaded guilty to the two sexual assault charges and the single false imprisonment charge, he accepted that he understood the nature and quality of his offending conduct at the time he committed these crimes. The Tribunal also formed this view by considering the reports provided by Dr Sullivan and Mr Healey in the context of all the oral and written evidence before the Tribunal, including the significant inconsistencies between the applicant’s accounts of his offending when compared to the accounts of his two victims as recorded in their witness statements.

6. In the Tribunal’s view the information and evidence before the Tribunal when viewed as a whole indicates that the applicant was in control of his interactions with his two victims, one of whom was only 16, acted with a specific purpose or intent and his behaviour in those instances was not caused by extenuating circumstances, such as an undiagnosed mental health condition or other circumstances, that were beyond his control.

7. The applicant claims his breaches of his reporting obligations as a registered sex offender were a misunderstanding. The Tribunal does not accept this explanation or even if it did, that this explanation amounts to extenuating circumstances outside the applicant’s control. The applicant provided Victoria Police documents to the Tribunal that confirmed when the applicant was registered as a sex offender in Victoria on 24 June 2021 his reporting obligations for the eight years of his registration were explained to him and he was given a Notice of Reporting Obligations for registered sex offenders booklet (NORO). A copy of an acknowledgement, dated 7 July 2021, signed by the applicant and a Victoria Police officer confirming the applicant received the NORO on that date was included in the Victoria Police brief, a copy of which the applicant provided to the Tribunal.

8. The Tribunal finds that the applicant’s criminal offending that led to the grounds for the cancellation of his visa arising did not occur due to extenuating circumstances beyond the applicant’s control.

9. The Tribunal finds that this consideration weighs in support of the cancellation of the applicant’s visa and the Tribunal gives this consideration great weight.

   The past and present behaviour of the applicant towards the Department (including whether they have been truthful and cooperative)

10. The applicant fully participated in and cooperated with the Department during the process that led to the cancellation of his visa, including providing a written response to the Notice of Intention to Consider Cancellation of a visa.

11. There is no information before the Tribunal to indicate that at any other time the applicant has not been truthful toward and cooperative with the Department.

12. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration some weight.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s.140 of the Act

13. The applicant’s representative submitted that due to the operation of ‘one fails, all fail’ criteria in relation to the applications of the applicant and his wife for Subclass 485 visas, if the applicant’s Student visa is cancelled then this could lead to the consequential cancellation of the visa held by the applicant’s wife, which the applicant advised is a Bridging A visa.

14. The Tribunal acknowledged during the hearing that the operation of such criteria could lead to the refusal to grant the applicant’s wife a Subclass 485 visa but that it was not obvious to the Tribunal how those circumstances could lead to the consequential cancellation of her Bridging A visa.

100.   The applicant’s representative made further oral submissions on this issue during the Tribunal hearing. The Tribunal found these submissions to be unconvincing and of limited assistance to the Tribunal. The Tribunal asked the applicant’s representative to provide written submissions after the hearing to specifically address how the cancellation of the applicant’s visa could lead to the cancellation of the visa held by his wife.

101.   After the Tribunal hearing the applicant’s representative submitted:

Given his current medical situation chances are that his visa application might also be turned down on the basis of his medical situation which is one fail all fail criteria.

102.   The Tribunal is not convinced by these submissions and finds that the cancellation of the applicant’s visa will not cause the consequential cancellation of any other visa.

103.   The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.

Whether there are mandatory legal consequences to a cancellation decision such as whether cancellation would result in the applicant becoming an unlawful non-citizen and liable to detention and removal or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention

104.   The Tribunal explained the mandatory legal consequences that would flow for the applicant from a decision to cancel his Student visa. If the applicant’s visa is cancelled, he will become an unlawful non-citizen under the Act and could be removed from Australia under s 198 if he does not voluntary depart. The applicant has already been detained in immigration detention under s 189 of the Act.

105.   Cancellation of the applicant’s Student visa would also mean that s 48 of the Act would apply to prevent him from applying for a range of visas while he remains in Australia. The applicant would also be affected by Public Interest Criterion 4013, with the effect he would be precluded from applying for a visa to return to Australia for a statutory exclusion period, currently three years.

106.   The Tribunal indicated to the applicant that this consideration – because of the adverse consequences for the applicant – normally weighs against the cancellation of a visa. However, the Tribunal also raised with the applicant and his representative that when visa holders who hold temporary visas commit criminal offences in Australia then they should expect that certain mandatory legal consequences would flow from such acts, including the loss of the privilege of holding a temporary visa. In this context, this consideration the Tribunal posited, could be found to weigh in support of the cancellation of the applicant’s visa.

107.   The Tribunal asked the applicant’s representative to provide written submissions after the Tribunal hearing addressing whether the Tribunal could give this consideration weight in support of cancelling the applicant’s visa for the reasons identified above. The applicant’s representative provided a seven-page submission after the Tribunal hearing, but that submission did not address this consideration.

108.   In the Tribunal’s view, having been convicted of 13 separate criminal offences for incidents occurring in March 2019, May 2019 and between March and May 2022, the applicant should have reasonably expected that his criminal offending would have mandatory legal consequences affecting the privilege he enjoyed of holding a temporary visa to reside in Australia.

109.   Mr Healey tested the applicant’s intelligence on 21 July 2021 and found he was “of below average intellectual capacity with a full scale IQ of 84, meaning that some 86% of his peers would perform better”.

110.   In the applicant’s circumstances the Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.

Whether Australia has obligations under relevant international agreements including non-refoulement obligations, family unity obligations and the best interests of any children in Australia as a primary consideration, that would be breached as a result of the visa cancellation

111.   The applicant does not have any children so consideration of the best interests of any children do not arise in this review.

112.   The applicant does not claim that Australia owes him non-refoulement obligations or that he is at risk of indefinite detention.

113.   The applicant is concerned that if he has to return to India he may be harmed by his brother-in-law or he may be ostracised as a sex offender by his community or even be tortured or beaten. The applicant did not provide any information to support these concerns and they seem speculative to the Tribunal in the absence of any evidence of any specific or generalised threat or significant risk of harm. The applicant is not prevented by s 48 of the Act from applying for a Protection visa if as a result of his concerns he believes Australia owes him an obligation of protection, but the applicant has not applied for a Protection visa.

114.   The Tribunal invited the applicant’s representative to provide written submissions after the Tribunal hearing if the applicant believed the cancellation of his visa would place Australia in breach of any of its obligations owed under international agreements.

115.   The representative submitted:

The visa holder’s wellbeing would be at risk if he has to return to India:
If he is forced to return to his home country as a result of his visa cancellation, he would have to face his community where chances of survival for a person labelled as a sexual predator are minimal. The other options such as relocation to the other parts of country would not help him to start afresh rather it would make it impossible for him find potential sources of employment or accommodation. Hence, clearly financial, social, physical and emotional aspects of his life would deteriorate beyond any doubt.

116.   The Tribunal reads this submission as a claim of hardship that cancellation would cause the applicant, rather than an assertion that Australia would be in breach of its obligations under international agreements if the applicant’s visa is cancelled. The Tribunal has considered these claims when considering the hardship that cancellation of his visa would cause the applicant or anyone else.

117.   Consideration of whether the cancellation of the applicant’s visa would cause Australia to be in breach of its obligations under international agreements to respect and preserve the family unit do not arise in this review. The evidence before the Tribunal, which it accepts, is that the applicant is estranged from his only family in Australia, his wife, and is prevented at the time of this decision by interim court order from communicating with her or using others to communicate with her on his behalf.

118.   The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.

If the applicant holds a permanent visa, whether the applicant has strong family, business or other ties in Australia

119.   The applicant’s Student visa is a temporary visa.

120.   The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.

Any other relevant matter

121.   Both the applicant in oral evidence and his representative in written submissions referred to the applicant’s previous lack of criminal history in India and his unblemished migration record after having visited countries like Thailand, Sri Lanka and Malaysia as evidence that the applicant’s criminal offending in Australia was out of character and he will not reoffend. The applicant provided the Tribunal with a criminal history check from India which stated there were no disclosable matters in relation to the applicant and the Tribunal accepts this evidence. The Tribunal also accepts that the applicant has been assessed as having a low or low to moderate risk of sexual reoffending. The Tribunal further accepts that the applicant has diligently and successfully completed his obligation to perform 200 hours of unpaid community work.

122.   The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration some weight.

Conclusion

123.   The discretionary considerations that weigh in support of the cancellation of the applicant’s Student visa are:

·         The purpose of the applicant’s travel to and stay in Australia no longer subsists;

·         The applicant does not have a compelling reason to remain in Australia; and

·         The circumstances in which the grounds for cancellation of the applicant’s visa arose.

124.   The discretionary considerations that weigh against the cancellation of the applicant’s Student visa are:

·The applicant’s compliance with his visa conditions;

·The emotional, psychological, social and financial hardship that cancellation would cause to the applicant, his parents, his brother, other relatives and friends;

·The co-operative past and present behaviour of the applicant towards the Department; and

·The information considered by the Tribunal under ‘any other relevant matter’.

125.   The discretionary considerations that are neutral and weigh neither in support of nor against the cancellation of the applicant’s Student visa are:

·Whether there would be any consequential cancellations if the applicant’s visa is cancelled;

·The mandatory legal consequences to cancellation of the applicant’s visa;

·Whether Australia’s obligations under international agreements would be breached if the applicant’s visa is cancelled; and

·For holders of permanent visas, whether the applicant has strong family, business or other ties in Australia.

126.   Considering all the applicant’s circumstances the Tribunal finds that the discretionary considerations that weigh in favour of the cancellation of the applicant’s visa outweigh the discretionary considerations that weigh against the cancellation of the applicant’s visa. For these reasons, the Tribunal concludes that the applicant’s visa should be cancelled.

decision

127.   The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Michael Ison
Senior Member

Attachment 1 – Pre-hearing submissions to the Tribunal on behalf of the applicant

The submissions the Tribunal received from the applicant prior to the Tribunal hearing, with the main, but not necessarily all, documents attached to each submission were:

Submission received 14 November 2022
Two emails attaching 30 documents including -

·extracts from the applicant’s passport, date of issue 21 October 2016 and date of expiry 20 October 2026;

·a digital national Police Certificate for the applicant, issued by the Australian Federal Police (AFP) dated 21 September 2022;

·the applicant’s Indian criminal record clearance certificate, issued by the Consulate General of India, Melbourne, Australia dated 16 December 2021;

·evidence of the applicant’s overseas professional experience (including an experience certificate from Axis Bank Ltd dated 25 January 2016, a relieving letter from Axis Bank Ltd dated 25 January 2016, a pay slip from HDFC Bank Ltd dated 8 March 2016 and a letter of job offer from HDFC Bank Limited dated 8 March 2016);

·certificate from the Indira School of Career Development, Pune, India certifying the applicant has passed the Post Graduate Programme – Level B, dated August 2010;

·certificate from Union Bank of India certifying Mr Gian Chand Miglani, the applicant’s father, served the Union Bank of India for over 40 years and retired on 31 May 2012;

·certificate from Punjab Agricultural University certifying Mr Gian Chand Miglani has obtained the degree of Master of Science (Honours), dated 4 May 1976;

·certificate from Punjab Agricultural University certifying Mr Gian Chand Miglani has obtained the degree of Bachelor of Science (Honours), dated 12 March 1975;

·untranslated document from Co-Education High School, dated 8 September 2006;

·a Preliminary Brief Statement made by an Informant from Victoria Police dated 3 June 2022 which related to breaches of the applicant’s reporting obligations as a registered sex offender. Included in the brief were criminal charge sheets for ten charges dated 30 May 2022, various witness statements, an acknowledgment from the applicant dated 7 July 2021 of his obligations as a registered sex offender, Victorian register of sex offenders certificate concerning evidence about the applicant dated 1 June 2022, photograph portfolio and extracts about the applicant from Victoria Police’s Law Enforcement Assistance Program (LEAP) dated 30 May 2022;

·a Preliminary Brief Statement made by an Informant from Victoria Police dated 17 May 2019 which related to the sexual assaults and false imprisonment charges the applicant pleaded guilty to. Included in the brief were criminal charge sheets for three charges dated 15 May 2019, the witness statements of the two victims dated 22 March 2019 and 10 May 2019, various other witness statements, exhibit lists and cover sheets, captures of CCTV footage of the service station where the offences occurred and other exhibited information;

·an apology letter from the applicant to the two victims and Victoria Police dated 7 October 2021;

·Further and better particulars filed by Victoria Police, dated 25 September 2022, in support of their application for a final Intervention Order in which the applicant is named as the respondent and his wife as the protected person;

·an Application and Summons for an Intervention Order filed by Victoria Police dated 12 July 2022;

·the applicant’s response dated 24 October 2022 to the further and better particulars filed by Victoria Police to support their application for a final Intervention Order;

·two letters of support from the applicant’s wife to the County Court of Victoria dated 7 October 2021 and to the Magistrates’ Court of Victoria at Melbourne dated 24 November 2020;

·screen shots of an email dated 25 May 2022 from the applicant to the Department of Justice and Community Safety (DJCS) that includes photos of evidence of the applicant completing his 200 hours of unpaid community work as part of his Community Corrections Order obligations;

·screen shot of an email dated 30 September 2022 from DJCS to the applicant regarding his Community Corrections Order;

·County Court of Victoria Result of Appeal orders of four pages made on 13 October 2021;

·County Court of Victoria Result of Appeal orders of four pages made on 2 September 2022;

·County Court of Victoria Charge Sheet and Summons dated 12 July 2022;

·Report from Dr Danny Sullivan, Consultant Forensic Psychiatrist, dated 29 July 2021;

·Reports from Mr Bernard Healey, clinical psychologist, dated 21 July 2021, 31 August 2021, an undated report written in September 2021 and 15 August 2022;

·90 pages of clinical records of the applicant’s medical treatment, medications and medical tests whilst in immigration detention from International Health and Medical Services;

·Report from Dr Sridevi Kolli, clinical psychologist at Psychology 4 Change Pty Ltd, dated 21 September 2021;

·Serco Individual Management Plan Review for the applicant dated 9 November 2022;

·an email from Victoria Legal Aid to the Magistrates’ Court of Victoria at Horsham dated 25 October 2022 in relation to Victoria Police’s application for a final intervention order;

·a statutory declaration declared by Ms Aparna Monga on 8 November 2022;

·a statutory declaration declared by Mr Fida Hussain on 5 November 2022;

·a statutory declaration declared by Mr Jaideep Singh on 9 November 2022;

·a statutory declaration declared by Mr Jatinder Singh on 7 November 2022;

·a statutory declaration declared by Mr Karminder Singh on 7 November 2022;

·a statutory declaration declared by Mr Parveen Bansal on 24 October 2022; and

·a Notice of Order made by the Magistrates’ Court of Victoria at Horsham dated 29 June 2022 confirming the sentence imposed on the applicant in relation to the 10 charges for breach of his registered sex offender reporting obligations.

An email from the applicant’s representative responding to questions posed by the Tribunal in the invitation to a hearing.

Submission received 15 November 2022
A nine-page typed statement from the applicant, unsigned.

Submission received 16 November 2022

·A nine-page typed statement from the applicant, signed.

·A six-page written submission from the applicant’s representative.