Mithu Kumar SAHA and Minister for Immigration and Border Protection

[2016] AATA 319

Saha and Minister for Immigration and Border Protection (Migration) [2016] AATA 319 (17 May 2016)

Division	General Division
File Number(s)	2016/1134
Re	Mithu Kumar SAHA
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

Decision

Tribunal	Mr P W Taylor SC, Senior Member
Date	17 May 2016
Place	Sydney

The 23 February 2016 decision refusing Mr Saha’s Class UK partner visa application is set aside and substituted with a decision that the partner visa application is not refused on character grounds under s 501(1) of the Migration Act 1958.

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

Mr P W Taylor SC, Senior Member

Catchwords

IMMIGRATION AND CITIZENSHIP – visa refusal – application for partner visa – failure to pass character test – substantial criminal record – discretion to refuse applicant's visa – Ministerial Direction no 65 applied – protection of the Australian community – seriousness and nature of the relevant conduct – the risk conduct may be repeated – expert evidence of risk of reoffending and rehabilitative prospects – expectations of Australian community – best interests of minor children – impact on victims of applicant’s criminal conduct – impact on applicant’s family - decision under review set aside and substituted

Legislation

Migration Act 1958 ss 4(1), 499(1), 501

Cases

Tanioria v Minister for Immigration and Border Protection [2016] FCAFC 43

Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247

Secondary Materials

Direction no. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

REASONS FOR DECISION

1.       Mr Saha is a 42-year-old Bangladeshi national.  He has lived in Australia since his first arrival in early October 1997, though not always as the holder of an appropriate visa and, since 21 July 2013, in immigration detention.

2.       Mr Saha is married to a (now) 51 year old indigenous Australian citizen wife.  They met in 2001, married in April 2005, and have three sons - KELM (aged 14), MJM (aged 12) and TKS (aged 9).   On 22 February 2011 Mr Saha applied for a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa.  The combined application has had a long, and as at 23 February 2016, an unsuccessful, history - as the following brief chronology illustrates:

Date	Event
22-Feb-11	Partner visa application
23-Apr-13	Refusal of Partner visa application
2-Jul-13	Application for review to Migration Review Tribunal (“MRT”)
14-Aug-13	MRT declined review jurisdiction
27-Feb-14	Federal Circuit Court of Australia quashed the MRT decision
8-Apr-14	MRT hearing
22-Apr-14	Additional evidence provided to the MRT
5-Jun-14	MRT decision - set aside the refusal decision and remitted the application
3-Mar-15	Notice of intention to consider visa refusal on “character” grounds
22-Apr-15	Submissions in response to the notice of intended refusal
24-Jun-15	Submissions in response to the notice of intended refusal
23-Feb-16	Partner visa (Class UK) refusal decision - notice of decision
3-Mar-16	Application for AAT review of refusal decision

3.       One reason for the protracted course of Mr Saha’s partner visa application, until the 5 June 2014 MRT decision, was doubt about the nature of his relationship with Mrs Saha.  That doubt arose from the history of their fragmented cohabitation since about January 2009 and the, at least episodically, troubled relationship suggested by that history.  The Schedule to these reasons provides an overview of the apparent periods of the couple’s cohabitation with their children.  It highlights the period of their residential separation, and the principal reasons for it.  The two most significant reasons are (i) the two offences for which Mr Saha was incarcerated (for most of 2010, part of 2011, most of 2012 and part of 2013), and (ii) Mr Saha’s immigration detention since July 2013.  As the details in the Schedule show, after January 2010 Mr Saha was only at liberty in the community for about 12 months (from March 2011 to late February 2012) and even then he and Mrs Saha did not live together for the whole of that period.  (Up until 6 November 2011, when his sentence expired, Mr Saha’s parole conditions formally prohibited co-habitation with Mrs Saha.  Notwithstanding that prohibition, at least during the first six months of 2011, there were in fact some episodic periods of cohabitation.)

The Partner visa refusal decision - February 2016

4. The discretion to refuse Mr Saha’s Class UK partner visa application was enlivened by absence of satisfaction that he passed “the character test” in section 501 of the Migration Act 1958 (“MigAct”). His inability to pass the character test is uncontentious - because (as the Schedule indicates) his October 2010 and April 2013 convictions had each resulted in a sentence of imprisonment for a period of more than 12 months: see MigAct s 501(1),(6)&(7).

5.       The ministerial delegate’s 23 February 2016 decision to refuse the partner visa application was the result of a determination that Mr Saha presented an unacceptable risk to the Australian community.  The delegate noted that Mr Saha’s offences involved both intoxication and domestic violence and considered that he had a high risk of reoffending.  The delegate apprehended that any reoffending would be of a potentially serious nature, and would likely involve psychological and physical harm to other members of the community.  It was those considerations that led the delegate to conclude that Mr Saha posed an unacceptable risk.  The delegate reached that view despite recognising that the best interests of Mr Saha’s three sons were that his application be granted, so as to permit him to remain in Australia and return to the family residence.

Ministerial Direction - Direction no 65

6. Section 499(1) of the MigAct authorises written ministerial directions about the exercise of any powers conferred by the MigAct. A decision maker must comply with such a direction. Since 22 December 2014 the direction that applies to the visa refusal power conferred by s 501 of the MigAct is “Direction no 65 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s501CA” (“Direction no 65”).

7. The first section of Direction no 65 substantially repeats the objective of the MigAct (the national interest regulation of the entry and presence of non-citizens - see MigAct s 4(1)).  It then sets out General Guidance (at paragraph 6.2) and Principles (at paragraph 6.3).  The second section of Direction no 65, describes a visa as a privilege and, in the case of a visa application decision, requires the decision-maker to apply the Principles and “take into account” the considerations in “Part B”.  (Pt B comprises paragraph 11&12 and characterises those considerations as either “primary” (paragraph 11 to 11.3) or “other” (paragraph 12 to 12.4)).  Section 2 of Direction no 65 also counsels (in paragraph 8) that (i) independent authoritative information should be given appropriate weight, (ii) primary considerations should be given more weight than others, and (iii) different considerations (both primary and other) may have competing significance, and tend towards different conclusions.

8.       The General Guidance set out in paragraph 6.2(1) of Direction no 65 emphasises commitment to the protection of the Australian community.  (In that respect it heralds the first of the “primary” considerations in Part B.)  It then says the Principles are critically important, and reflect community standards relevant to the determination of whether “a risk of future harm from a non-citizen is unacceptable”.

9.       The Principles provide a background statement of values and expectations which, in many respects foreshadow the matters discussed more elaborately in the various considerations set out in Part B.  Nevertheless, their title suggests an anterior significance in informing the overall decision making evaluation required by the obligation to “take into account the primary and other considerations relevant to the individual case”:  see Direction no 65 at paragraph 8(1).  The Principles emphasise that visa status is a privilege:-

(a)most usually granted only on the basis of an informed expectation (typically one not contradicted by past offending) of the visa holder’s lawful and benign conduct in Australia:  at paragraph 6.3(1);

(b)typically denied to people who have committed serious, violent or sexual crimes (especially against vulnerable people):  at paragraph 6.3(2) & (3);

(c)subject to low tolerance where (i) apprehended conduct carries unacceptable risks of serious harm, and / or (ii) the visa applicant has had, or is likely to have, a limited presence, or participation in, the Australian community:  at paragraph 6.3(4), (5) & (6);

(d)that can be granted, even where adverse considerations apply, after taking into account the circumstances that a visa applicant has made a positive contribution to the Australian community, and / or the potential consequences that visa refusal would have for Australian resident minor children (and / or other immediate family members):  at paragraph 6.3(7).

Primary considerations

10.     Direction no 65 lists three matters as “primary” considerations: (i) the protection of the Australian community from “criminal and other serious conduct” (“the protection issue”), (ii) the best interests of minor children in Australia (the “children’s best interests issue”), and (c) the expectations of the Australian community (the “community expectations issue”):  see paragraph 11 to 11.3.  Each of those issues is the subject of a descriptive exegesis in the Direction.

The protection issue - Pt B at paragraph 11.1

11.     Proper regard to the protection issue requires “low tolerance” in relation to visa applicants who have engaged in past criminal conduct.  Whatever tolerance is ultimately involved in the visa decision must take into account both the nature and seriousness of that conduct, the risk of further offending in Australia, and the risk of consequential harm:  see paragraph 11.1.  A visa applicant’s past criminal conduct is necessarily regarded as “serious” where it was (i) violent, sexual, predatory (i.e. where the victim was vulnerable - whether because of age or infirmity) or defiant (i.e. where the victim had, or was performing, a governmental office or function):  see  paragraph 11.1.1(1)(a)&(b).  The same “serious” characterisation applies where the criminal conduct occurred whilst the applicant was in (or had escaped from) immigration detention:  see paragraph 11.1.1(1)(c).

12.     The protection issue also requires regard to the nature, period, frequency and pattern of a visa applicant’s past criminal conduct, including their cumulative effect and the sentences they attracted:  see paragraph 11.1.1(1)(e),(f)&(g).  These matters will tend to inform assessment of both the risk of re-offending and the extent of harm risk associated with re-offending:  see paragraph 11.1.2(1).  That assessment must ultimately address the question whether the risk involved in granting the application is “unacceptable”.  That characterisation involves evaluation of the “likelihood” of a criminal occurrence, the degree of “seriousness of the potential harm”, the nature and purpose of the particular visa, and the general matters relevant to the exercise of any visa grant discretion- the Objective of protection, the Principles of “privilege” and “low tolerance”:  see paragraph 11.1.2(1), (2), (3(a)&(b), (4).

13.     Assessment of the likelihood of an applicant’s future criminal or serious conduct must have regard to the nature, extent and circumstances of past conduct, any independent evidence or information relating to likely future conduct and risk of re-offending, and the nature and weight of any evidence of rehabilitation:  see paragraph11.1.2(3)(b)(i)-(ii).  Necessarily, the assessment must take into account the purpose, and the intended duration, of the visa applicant’s Australian presence:  see paragraph 11.1.2(3)(b)(iii)&(4).

The children’s best interests issue - Pt B at paragraph 11.2

14.     Direction no 65’s elucidation of the protective issue identifies the relevance of the visa purpose and the possible relevance of “strong or compassionate reasons” for a visa grant in the consideration of whether a particular non-citizen “represents an unacceptable risk of harm”:  see paragraph11.1.2.(1)&(4).  That relevance, and particularly the latter possibility, is more specifically illustrated by the “children’s best interests” issue - the second of the primary considerations.  This second primary consideration requires a decision maker to make a specific determination as to whether a visa refusal decision “is, or is not, in the best interests” of each relevant minor child:  see paragraph 11.2(1)-(3).  (The class of relevant children necessarily includes, although it may not be confined to, a visa applicant’s own children.)  The consideration of “best interests” must take into account the actual circumstances of the applicant / child relationship.  This will include the nature, extent, quality and significance of the parent child interaction, and any periods of physical separation:  see paragraph 11.2(4)(a).  Necessarily a decision maker will have to take into account, and can be expected to give great significance to, any evidence of neglect, abuse or distress occasioned (or likely to be occasioned) by the applicant’s conduct:  see  paragraph 11.2(4)(c), (g) & (h).   But the “best interests” assessment must address the totality of the applicant / child relationship.  This will include the child’s own expressed views, their age, the extent to which the visa applicant’s role has been (and is likely to continue to be) positive and supportive, the likely effect of future physical separation, and the availability of alternative parental role takers for the child:  see paragraph 11.2(4)(b)(c)(d)(e)&(f). 

The community expectations issue - Pt B at paragraph 11.3

15.     The third primary consideration requires consideration of what Direction No 65 calls the “the expectations of the Australian community”.  Part of those expectations is that of obedience to Australian laws.  But the totality of the Direction’s discussion of community expectations indicates that the expectation of obedience, despite the brevity and clarity of the first sentence of paragraph 11.3, is not intended to be a determinative consideration.  This indication is implicit in the existence of the other two primary considerations, and the contemplation that “one or more primary considerations may outweigh other primary considerations”:  see paragraph 8(5).  These more general aspects of the guidance provided by Direction No 65 are implicit in the repeated use of the auxiliary verb “may” (which I have emphasised) in the text of Part B at paragraph11.3 - as follows:-

11.3 The Australian community expects non-citizens to obey Australian laws while in Australia.  Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person.  Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa.  Decision-makers should have due regard to the Government’s views in this respect.

Other considerations - Pt B at paragraph 12.1

16.     Direction no 65 requires a decision maker to take into account four specific “other” considerations - to the extent they are relevant to the applicant’s particular circumstances - in addition to the “primary” considerations.  (These four specific “other” matters do not limit the considerations permissibly relevant to the exercise of the visa refusal power:  see paragraph 12(1).)  In the ascending order of their comparative significance to Mr Saha’s visa application, those “other” required considerations are:

(a)the impact of the visa decision on Australia business interests:  see paragraph 12(1)(d), 12.4(1)

(a)the possibility that the visa applicant would be at risk of relevant harm in the place to which they would be removed if required to leave Australia (relevant harm is that related to Australia’s non refoulement obligations under various international conventions):  see  paragraph 12(1)(a)

(b)the impact of a visa grant decision on victims of the applicant’s past apprehended conduct:  see paragraph 12(1)(c); 12.3(1)

(c)the impact of a visa refusal decision on the applicant’s Australian resident family members:  see  paragraph12(1)(b); 12.2(1).

17.     The first of these permissible “other” considerations is immaterial in the evaluation of Mr Saha’s partner visa application.  Although he has a significant work history in Australia, his previously exercised skills and abilities (mainly as a chef), as well as the additional experience he has acquired during his periods of incarceration (at one time he worked in a prison cabinet shop) are of a type that would not significantly impact the delivery of a major project or service in Australia and consequently cannot be given any weight”.

18.     The second of the “other considerations” is also immaterial.  In his 5 December 2014 statutory declaration Mr Saha expressed a subjective fear that, if he returned to Bangladesh he might be detained - because of his Hindu religion, youthful political activities and his previous (in 1997) unsuccessful claims.  But this vague apprehension does not attract the non-refoulement obligations.  In his most recent affidavit (dated 15 April 2016) Mr Saha did not refer to any risk of harm if he was required to return to Bangladesh.  Consistent with that view, Mr Saha’s counsel in these proceedings explicitly disavowed any reliance on Australia’s international obligations relating to non-refoulement.  In the totality of those circumstances I am satisfied there is no material pointing to non-refoulement obligations being a material consideration in the review of Mr Saha’s visa rejection decision.

Nature and circumstances of the Offences

19.     The General Guidance, Principles and “the protection issue” in Direction no 65 require regard to the fact and extent of a visa applicant’s criminal offences.  The Schedule to these reasons includes the dates and general nature of Mr Saha’s various offences.  It also includes summarised details of various Apprehended Violence Orders taken out against him, typically in connection with the same offences.  It is necessary to have regard to the circumstances of each offence, in order to make an informed assessment of their significance in taking into account the “primary considerations” in Direction no 65.

The 3 September 2006 offence

20.     Mr Saha’s September 2006 offence involved damage to a wall of his home and was dealt with by a bond.  According to the police fact sheet, it involved an incident where, in the course of an argument between himself and his wife, Mr Saha hit the wall with a hammer.  Mr Saha gave an explanation that the police fact sheet version of events came from his wife, and that her version really arose from a misunderstanding.  He said he had noticed cockroaches in the kitchen and had traced them to an existing hole in the plasterboard wall of the premises.  He then poked into the hole and enlarged it, in order to investigate, and remove the source of, the cockroach infestation.  He says his wife arrived after he had started on the task, misunderstood what he was doing and an argument developed.  In the present proceedings Mrs Saha had no real recollection of the events.  But the Minister criticised Mr Saha for differing from the details in the police fact sheet.  In my view it is neither necessary nor useful to attempt to resolve the differing version of events.  Nor is it significant to criticise Mr Saha for his qualification of the version of events in the police fact sheet.  Both versions corroborate the fact of a significant argument.  Neither version disputes the fact of the damage to the wall - whether or not it was damaged in anger or with some arguably rational basis.  Neither version suggests any violence directed at Mrs Saha.  The police fact sheet relating to the incident emphasises that at no stage was Mrs Saha threatened or assaulted, and in a tape recorded statement to the police she confirmed that no offence had been committed against her.  Consequently, even on the fact sheet version of events, it is not appropriate to conclude that the offence involved any kind of personal violence or serious criminality.  That conclusion is corroborated by the fact that the matter was dealt with on the basis of a good behaviour bond, rather than the imposition of a penalty.  When one has regard to that fact, the absence of any relevantly similar offence, and the additional consideration that Mr Saha apparently complied with both the bond terms, and the related Apprehended Violence Order (“AVO”), this matter is of no real adverse significance in the determination of the present application.  Conversely, having regard to the absence of any previous offences, it tends to suggest that for at least the first five years of their domestic relationship Mr and Mrs Saha had lived together apparently harmoniously.

The 28 September 2009 offence

21.     Mr Saha claims that he committed no offences in the three years between 2006 and 2009.  As a matter of recorded convictions that is a correct proposition.  But the background consideration is his alcohol use from 2006 onwards, and his apparent propensity to become aggressive under the influence of alcohol.  Possibly illustrating that background are three police reports of incidents of domestic arguments in late 2007 and early 2009.  The October 2007 incident did involve a complaint of Mr Saha punching Mrs Saha, but the police note indicates that the investigating police doubted, and were unable to substantiate, that part of the complaint.  The second incident, in January 2009, appears from the truncated police note to involve an argument, again about Mr Saha’s drinking habits, in which Mrs Saha punched him, and had no fears for her own safety.  The third incident, in April 2009, again involved an aggressive argument, but no personal violence.

22.     That background of Mr Saha’s excessive drinking (and accompanying unacceptable behaviour) clearly was a significant factor in the commission of his next offence on 28 September 2009.  But there is a history, revealed in the police notes, that suggests it is not the only relevant factor.  Two days earlier, just before Mr Saha went to work at about 10:00am on a Sunday morning (a circumstance suggesting that alcohol was not a factor in his behaviour) they had a heated argument, about his accusation that she had been taking drugs.  The report of this incident contains no suggestion of violence. 

23.     The following Monday morning Mrs Saha complained to the police that just before he walked the children to school at about 8:30am, and while Mrs Saha and her nephew were sitting in the lounge room, Mr Saha had pointed a knife at her and threatened to kill her.  When police arrived at the house at 9:30am neither Mrs Saha nor her nephew wanted to provide a statement, and neither could produce the knife.  When police attended Mr Saha’s workplace at 12:30am he denied threatening his wife.  The police notes specifically record that there was no indication of alcohol being a factor in the incident. 

24.     Later the same day the police served Mr Saha with an AVO, prohibiting him from approaching, or residing with, Mrs Saha.  He went home at about 15:30pm after finishing work, and when Mrs Saha came home shortly afterwards, she complained and he left.  She reported the matter to the police, but they took the view that, bearing in mind the sequence of their respective returns to the residence, and Mr Saha’s departure, he had not breached the AVO.  Much later that day, at about 10:00pm, Mrs Saha went outside to feed her dogs and found Mr Saha standing there near the hot water service.  He asked her for a blanket but she told him to leave and threatened to call the police.  As she went to go inside (presumably to do so) he grabbed her by the shoulders, but her nephew intervened and he then went out the backdoor of the premises.  When the police arrived shortly afterwards they found Mr Saha asleep and took him to the police station. There he was unable to be interviewed because of the level of his intoxication.

25.     On one  view of these events, that Mr Saha had threatened his wife with a knife, they are alarming.  But a number of points are also relevant.  First, Mr Saha’s concern over his wife’s drug use (which both denied in the current proceedings) may not then have been entirely unjustified (in the sense that the police notes reveal that they held a similar impression).  Second, the knife allegation was one that neither Mrs Saha nor her nephew were willing to substantiate to the police, and that they refused even to identify the knife that Mr Saha had supposedly used.  Third, the account of the event (involving a spontaneous knife threat just before walking the three children to school) and the refusal to pursue the complaint, significantly detracts from its credibility.  Fourth, Mr Saha immediately denied the knife threat allegation.  Fifthly, the police took no action in relation to the complaint - other than to serve the AVO.  Finally, even in relation to the actual offence, it is readily apparent that it was dealt with (as the Schedule indicates) with a six month good behaviour bond.

26.     I appreciate that in these proceedings Mr Saha said he could not remember the knife incident, that he had been drunk, and had been drinking the whole night.  The context of the cross examination was to extract from him a concession that the knife incident had occurred.  There is limited evidentiary value, and I think really none, in reconstructing from a selective forensic examination seven years later, an hypothesis that Mrs Saha’s allegation was possibly accurate, and that its accuracy indicates Mr Saha’s propensity for violence.  The hypothesis is reasonable, but there are no facts to elevate it above the status of an hypothesis.  On the contrary, I doubt that it is really likely to reflect the reality of the situation on the morning of Monday 28 September 2009.  First of all, although in this part of the cross examination Mr Saha was reminded that the incident allegedly occurred at about 8:30am he was not reminded that it was just before he walked the children to school and went to work himself.  (His attendance at work was a relevant matter because he was cross examined later on the basis that he was always sober, and did not drink, at work.)  Consequently, the time of day when the incident supposedly occurred, Mr Saha’s conduct in walking the children to school, his subsequent attendance at work, and the contemporaneous police reports noting that alcohol did not appear to be involved, all render unlikely the conclusion that this was an incident for which his drunken disinhibition was responsible.  The facts are that there was no reliable contemporary evidence to substantiate the claim, and indeed a refusal by two of the three people involved to provide any evidence to support it.  For all these reasons, I regard the September 2009 offences, and the events surrounding them, as having no material significance, adverse to Mr Saha, in the consideration of the “protective issue” for the purposes of his visa application.

The November 2009 incident

27.     There was an incident in November 2009 involving an altercation at the house of one of Mr and Mrs Saha’s neighbours.  The details recorded in a police facts sheet narrate the fact of an argument between Mr and Mrs Saha and an allegation by her about his infidelity with the neighbour’s wife.  Mr Saha denied his wife’s allegation but agreed to the request to go to the friend’s house nearby and confront the neighbour’s wife.  A short time later they walked up to the neighbour’s house. According to a police facts sheet, the ensuing conversation between Mr and Mrs Saha and the other lady, took place whilst they were separated by the screen door of the neighbour’s residence. The conversation became heated and Mr Saha challenged the neighbour’s husband to come out and fight.  There was a further exchange of vulgarity which temporarily ended when the husband shut the front door on Mr and Mrs Saha.  Mr Saha responded to that by banging and kicking on the closed fly screen door.  The male resident then returned and opened both doors.  At that point Mr Saha allegedly forced the doors further open and made his way into the premises.  In the course of doing so he allegedly struck the other man on the head with the bottom of a glass bottle he had in his right hand.  This is recorded in the police facts sheet as having resulted in a bleeding wound to the other man’s head.  Mrs Saha removed the beer bottle from a husband’s hand and then the other man succeeded in forcing him outside of the house.

28.     The version of events recorded in the police facts sheet about the November 2009 incident is generally consistent with oral evidence Mrs Saha gave in the present proceedings.  But the facts sheet also record that, when Mr Saha was interviewed two days after the incident he emphatically denied hitting his neighbour with the bottle.  The police facts sheet indicates that Mr Saha was charged with the offence of assault occasioning actually bodily harm, and required to attend court on 22 July 2010.  But there is no record of his having been either convicted or penalised for any such offence.  In those circumstances the appropriate conclusion to draw is that the charge was either not proceeded with, dismissed or disposed of (under the Crimes (Sentencing Procedure) Act 1999 (NSW) s 10) without conviction or bond. Since the matter must be regarded as having been dealt with in one or other of those ways, and since the circumstances show it related (for those involved) to the highly emotive subject matter of marital fidelity, I do not regard it as a matter that can properly be regarded as having material contemporary significance in the determination of the present review proceedings.

The 20 December 2009 assault by Mrs Saha

29.     There is an account in the police records of an incident in December 2009 at the hotel where Mr Saha was working.  That account records that Mrs Saha went to the hotel at about 11:00am on a Sunday morning with their two youngest sons.  She walked through the bistro area into the kitchen and there confronted Mr Saha.  She slapped and punched Mr Saha about the head, demanding money and a key card.  When Mr Saha backed away, showing his wallet and attempting to demonstrate that he had neither money nor the key card, she threw her mobile phone and car keys at him.  When Mr Saha bent down to retrieve those items, she punched him, several times, about the head and chest.  Mr Saha picked up a tray and used it as a shield to protect himself.  Mrs Saha then walked to the cutlery bay where she picked up a 20cm serrated edge knife, and threatened to stab Mr Saha.  At that point he was standing only about 1.5 m away from her.  She walked to the door of the hotel, and motioned as if to throw the knife at Mr Saha. 

30.     During a police interview later the same day Mrs Saha admitted hitting Mr Saha, throwing things at him, and the use of the knife.  She explained that she was “wild” at the time.  She said that she threw “anything when he annoys me”.  (It appears her annoyance on this occasion was about money - the police record notes that neither drugs nor alcohol appeared to be a factor contributing to the incident.)  Apart from those admissions, there is no doubt that the incident occurred - it was captured on the hotel’s closed circuit television system, and later viewed by the police.  Perhaps unsurprisingly this incident resulted in Mrs Saha being charged with three offences, and the issue of two Apprehended Violence Orders against her.  (Those 20 December 2009 and 15 January 2010 orders are noted in the Schedule to these reasons).  In addition, the three children were removed from Mrs Saha’s care (although this may only have been for a few days).  The police arranged for Mr Saha to look after two of the boys, and the third boy went to Mrs Saha’s sister. 

31.     Given the circumstances described in the preceding paragraph, and Mrs Saha’s evidence about her state of mind at the time, it is at least odd that Mr Saha, despite apparently remembering the fact that she came to the hotel wanting money, gave evidence in these proceedings that Mrs Saha had not been angry, and that he did not recall the knife.  The Minister’s submissions, whilst not disputing the details of the incident, criticised both Mr Saha’s asserted lack of recollection, and his related assertion that he was, and would continue to be, prepared to accept whatever violent behaviour his wife meted out when she was annoyed with him.  The Minister submitted that Mr Saha’s disavowal of the incident reflected adversely on both his credibility, and his insight into the likelihood of future stressors in the relationship.

32.     In so far as the Minister’s submissions suggested that Mr Saha’s evidence merely feigned a lack of recollection of either the knife, or of his wife’s anger, I reject them.  The factual details of the incident were captured contemporaneously in the CCTV images, recorded in the police notes and (on a fair reading of the evidence) not specifically denied by Mr Saha.  In so far as the Minister’s submissions suggest that Mr Saha may, at least subconsciously, underestimate the likely future stressors in his relationship with Mrs Saha, I accept they have force.  Mr Saha’s evidence was characterised by an unwillingness to address the factual details of some aspects of his (and her) past behaviour - tending to prefer instead to absolve her from any blame over their relationship difficulties, and to acknowledge repeatedly his past alcohol abuse, his total regret and his asserted determination not to resort to alcohol again.  But, unlike the Minister’s submissions, I do not regard these repeated acknowledgments, and asserted resolve, as either feigned or lacking in genuine motivation.  In particular I do not accept the Minister’s submission about parts of Mr Saha’s evidence, when he rejected the prospect of any future conflict in the relationship. The Minister sought to characterise this as, in effect, the wilfully blind irrationality of a controlling personality.  The Minister submissions went so far as to suggest that this “controlling personality” of Mr Saha was somewhat probative of the likelihood that he could confidently be expected to be the source of further provocation in the ongoing relationship with his wife.

33.     There is, in my view, more supposition than evidence for this characterisation of Mr Saha.  The relevant passages in the transcript of the present proceedings reveal, on a fair reading, an optimism (perhaps naïve) about the absence of future tensions, a willingness to tolerate disagreement even if accompanied by some degree of anger directed at him, and a recognition that mistakes and upsets can and do occur, but can be managed.  There is no specific evidence that points to a justifiable inference or conclusion that Mr Saha has a controlling personality.  Nor is such a view reflected in any of the several psychologist reports available to this Tribunal.  On the contrary, apart from the qualification in the April 2013 psychological assessment (which I note in paragraph 50 below) the subsequent psychologists evaluation of Mr Saha (those in April 2015 and more recently by Dr Pullman in 2016) portray a man with an apparently real insight into the nature of his past behavioural problems, the reasons for them, and a consistently expressed motivation to ensure they do not re-occur.

34.     Returning to the actual details of the 20 December 2009 incident (rather than Mr Saha’s flawed recollection about aspects of it), the purpose of noting them in these reasons is to add to the narrative of the events after the events of 27 to 29 September 2009, and to provide some additional context illustrating the apparent state of the relationship between Mr and Mrs Saha up until mid-January 2010.  Clearly it had become difficult, to say the least.  It involved episodic conflict, which erupted against the background of Mr Saha’s excessive drinking, but was not always immediately triggered by alcohol abuse, and sometimes where the conflict resulted in some form of violence, Mrs Saha was the aggressor.  The purpose of this aspect of the narrative is not to apportion blame, nor to justify either spouse’s conduct.  It is to understand better the then dynamics of their relationship, and to consider the extent to which the events of 2009 / 2010 inform the assessment to be made in the present review application, having regard to the currently prevailing circumstances.

The 18 January 2010 offences

35.     The 21 October 2010 convictions followed from an incident late in the evening of Monday 18 January 2010 (a little less than a month after the hotel incident where Mrs Saha had assaulted Mr Saha, and only days after the renewal of the AVO against her).  At about 11pm Mr Saha turned up at the family residence, with a friend with whom he had been drinking.  Despite the lateness of the hour he asked to see the children.  Mrs Saha told him they were sleeping.  The three of them adjourned to the lounge where they sat, drank and talked for several hours without incident.  However the conversation eventually descended into an argument, apparently about their comparative responsibilities for the troubles in their relationship.  Mrs Saha asked him to leave the house, although perhaps not in quite those terms.  (The police notes record that Mrs Saha was significantly intoxicated.)  This made him angry and he issued the threat “before I leave I will kill you”.  He then kicked Mrs Saha in the chest and punched her in the shoulder.  She then left the house for a short time.  When she returned Mr Saha was still in the lounge room and was drinking from a glass.  She again asked him to leave.  In response to that request Mr Saha stood up from the lounge, came towards Mrs Saha and hit her on the top of the head with a glass.  The glass broke and cut her head.  (She was later observed to have a small cut on her head and another on her thumb.)  Mr Saha then ran from the house.  He was arrested by police about 10am the following day.  He was noted to be slightly intoxicated.  Later that day Mr Saha participated in a police interview.  He stated he had been drunk at the time of the incident, but admitted to striking Mrs Saha in the face (not with the glass) and to throwing the glass at her.

36.     The 21 month sentence that Mr Saha received for this offence was about one third of the applicable maximum sentence for his assault offence.  The non-parole period was only 13 months, but the 9 month balance of the sentence was significantly longer (more than double) that usually permitted (having regard to the Crimes (Sentencing Procedure) Act 1999 (NSW) s 44(2)). The sentence itself was significant, and the longer than normally contemplated parole period must be taken to reflect a recognition of Mr Saha’s need for “post-release” assistance, in order to reduce the risk of his re-offending. In totality, the terms of the sentence were significant, and may be taken to reflect the Court’s view of the seriousness of the offence.

37.     Against the seriousness of the offence, it is relevant to take into account the fact that Mrs Saha was not significantly physically injured, and that this is the only offence that involved any physical injury to her.  It is also relevant that the incident followed a period of escalating difficulties in their relationship, apparently starting in January 2009 with reported arguments over Mr Saha’s alcohol use and including the more dramatic incidents in September and December 2009.  The hostility and frustration underlying those later events, for which both spouses had some degree of responsibility (having regard to the incident on 20 December 2009), appears likely to have been a factor in the drunken argument that boiled over into violence early in the morning of 19 January 2010.

The 24 December 2011 offences

38.     The details of this incident were the subject of a report by a detective at the Blacktown police station.  The report refers to Mr Saha’s release from custody earlier in the year and his return to living with Mrs Saha.  This latter aspect of the report is not likely to be completely accurate, even though (according to Mr and Mrs Saha’s evidence) there was some cohabitation in the early part of 2011.  Mr Saha’s previous sentence did not expire until 6 November 2011 and his parole conditions prevented his residence with Mrs Saha.  Consistent with those conditions, there are police incident reports beginning in May 2011, and up to early December 2011, which convey the impression Mr Saha was at that time, in any event, living separately from his wife.

39.     The report of the 24 December 2011 incident records Mrs Saha’s observation, and her disapproval of the fact, that Mr Saha had been drinking large amounts of intoxicating liquor.  This had resulted in a change in his behaviour, arguments and Mrs Saha’s exclusion of him from the premises.  The conflict over Mr Saha’s drinking, and his unwelcome attendance at the family home whilst under the influence of alcohol on previous occasions had resulted in a number of reports to police, and ultimately the initiation of an AVO on 14 December 2011.  However, those previous reports, including the one that provoked the 14 December 2011 AVO, typically involved only verbal arguments.  And even that order, whilst it prohibited offensive conduct, did not prevent Mr Saha’s actual residence with his wife and the children.

40.     The particular incident involved in the 24 December 2011 offence occurred early in the afternoon of Friday, 24 December 2011.  Mr Saha had been drinking at a nearby property but came back to visit (or perhaps to return to) his wife’s residence.  During the course of a conversation with his wife it became apparent to her that he was affected by alcohol.  She complained about his coming to the house when he was intoxicated.  This resulted in Mr Saha becoming angry.  He went back inside the house took out some mince pies that he had been heating in a microwave and then threw one of the pies at his wife, and left the property.  A short time later he was apprehended by police.  The custody management report prepared on his arrival at Blacktown police station a short time after the incident recorded that he was “slightly affected by alcohol”.

41.     Mr Saha’s evidence in the present proceedings gave a slightly different version of events.  He said it was his youngest son who had thrown the mince pie at his mother, and hit her in the back.  Mr Saha said he laughed, and his wife thought he had thrown the pie.  Later in his evidence, when pressed about the accuracy of his recollection, he said that he thought it was his son who threw the pie, did not think he threw one himself, but admitted that he could not really remember.

42.     In the present proceedings the Minister criticised Mr Saha’s attempted exculpatory account as showing a lack of insight into his behaviour.  The proposition underlying the Minister’s contention is that I ought to proceed on the basis of the contemporaneous version of events as the basis of which Mr Saha was convicted.  I agree with the proposition, but not the criticism sought to be derived from it.  The incident was itself trivial - as indicated by the conviction and penalty details recorded in the Schedule ($100, no other penalty and no bond).  The incident has no real contemporary significance - except in two respects.  First is does point to Mr Saha’s alcohol consumption as a continuing irritant, at that time, in Mr and Mrs Saha’s relationship.  Second, though it gives rise to a degree of apprehension about Mr Saha’s behaviour when intoxicated, it was not an incident that itself involved any physical injury, or threat of physical injury, to Mrs Saha.  The incident, and Mr Saha’s recollection or interpretation of it, contribute to requiring close enquiry about Mr Saha’s level of insight and risk of re-offending, but themselves provide no significant information for proper conclusions.

The 6 February 2012 offence

43.     The incident that resulted in Mr Saha’s 19 April 2013 conviction and second period of imprisonment was dealt with on the basis of a statement of agreed facts.  The incident occurred at a late night gathering at a friend’s house.  Mr Saha and the others were sitting in the lounge room area drinking wine and sharing some food.  Everyone appeared to be in a good mood.  Then, according to the agreed facts

At some point during the evening (Mr Saha) decided he wanted to leave and stood up to make an exit.  The victim, standing nearby asked Mr Saha to stay on.  Mr Saha, who at this stage still had his wine glass in his hand, stepped back as if to exit, stumbled and knocked his glass against the doorframe behind him.  The bowl of the glass smashed leaving jagged edges of glass attached to the stem.  The offender thrust the broken wineglass forward into the right side of the victim’s face.  The glass connected with the right cheek of the victim, causing a deep wound, and having further shattered left behind a shard of glass in the victim’s cheek when it was withdrawn by the offender.

The offender stepped back and the broken wineglass fell to the floor.  He was heard… to say words to the effect of “sorry” and “what have I done” . (Another person present) yelled at Mr Saha to leave the house.  (Another of the people present) reports that Mr Saha appeared “dazed and confused” and that they had to tell the offender to leave the house 3 times before he finally did.

44.     Mr Saha was interviewed by police on 22 February 2012. The transcript of that interview records him repeatedly professing to have little or no memory of the incident, apart from the fact that he had been drinking, and that the injured person was someone he had known for some time and considered a good friend.  Despite the consistent appearance in the transcript that he had no recollection and indeed seemed not to be following the interview process attentively, Mr Saha denied having any mental problems, other than that of being stressed about his family situation and his children in particular.  At one stage in the interview when he was asked whether he remembered hitting his friend he expressed disbelief about it happening.  He said “I couldn’t be do that because they, my friend, we friends, we see them, I couldn’t do that.  I can’t believe, I couldn’t be do that”.

45.     It is apparent from the District Court sentencing judge’s remarks of 19 April 2013 that he proceeded on the basis of the agreed facts (summarised in paragraph 43 above) and treated that matter as substantially one of alcohol related misadventure.  In relation to the particular circumstances of the offence the judge said this

I accept that the present offence was attended by a good deal of misadventure, as can attend such offences where recklessness is the requisite mental element. Unfortunately, such misadventure has accompanied this offender’s actions in some instances before when intoxicated with a glass in his hand and the situation calls for an appropriate measure of both specific deterrence and general deterrence to bring home to him and others that such conduct is not to be tolerated.

As to the offender’s prospects generally I have no doubt that if he addresses his tendency to become violent or reckless when intoxicated, his prospects of rehabilitation are good.  He has some sound foundations to recover his life if he sets his mind to it, having come from a stable background and having proven his potential to be a good citizen in other respects.  He made a good adjustment to life in this country, apart from the considerable difficulty that he has provided for himself, his family and the community by his abuse of alcohol.  It may very well be the case that he has been self-medicating depression in his resort to alcohol, additional to using legitimate medication, but this provides an explanation rather than an excuse for his present offending

46.     The sentencing judge noted that according to a psychologist’s report of 3 April 2013, and other available information, it was appropriate to conclude that when Mr Saha was not affected by alcohol he was “a decent and hard-working man who in ordinary circumstances would be regarded as a worthwhile member of the community”.  The sentencing judge noted various circumstances involved in Mr Saha’s excessive alcohol consumption including an inability to cope with his father’s death in 2006 and increasing depression.  The judge then remarked “it may be the case that no single explanation is provided for the offenders lapse into the abuse of alcohol, the consumption of which is a practice that I note is also contrary to his cultural and religious beliefs.  It is clear however that alcohol abuse is at the core of his offending”.

47.     In relation to Mr Saha’s risk of reoffending the sentencing judge’s guarded observation in the extract set out above, led to his satisfaction (referring to the length of the non-parole period) “that it is in the community’s interest that the offender’s rehabilitation be advanced by a longer period of supervision than would otherwise be the case”.  The maximum applicable sentence for the offence was seven years, with a standard 36 month non-parole period.  The judge imposed a total sentence of 28 months and a non-parole period of 17 months.  Ordinarily a non-parole period of that length  would have limited Mr Saha’s total sentence to 22 months.  The judge’s decision to impose a longer period was to give Mr Saha the benefit of a longer period of parole supervision (and support) than would otherwise have been the case.  Of course, as the details in the Schedule show, despite his parole release on 21 July 2013, Mr Saha has been in immigration detention, and has neither had any period of parole supervision nor has he been able to return to live with his wife and sons.

Developments during incarceration and immigration detention

48.     During his first period of incarceration (January 2010 to February 2011) Mr Saha concedes he did nothing effective to address his alcohol use.  That fact is consistent with contemporaneous corrective services reports about his lack of insight into his past behaviour.  It is also consistent with a statement, in his 18 February 2011 letter to the Immigration Department, suggesting that Mrs Saha was at fault for the “domestic dispute” that resulted in his incarceration.  (Although Mr Saha said in evidence that this letter was written by a friend, and he denied ever thinking that the circumstances of his offence were Mrs Saha’s fault.)  It is also consistent with the course of events following his release from immigration detention in late February 2011.  That course of events involved continued drinking, and the police reports evidence, at least after May 2011, various arguments with his wife over, or at least contributed to by, his drinking.  Mr Saha’s apparent conduct in that period sits oddly against a background where, as a result of his immigration detention, and his partner visa application, he ought to have been highly sensitised to the uncertainty of his future immigration status and, more importantly, to the disruption his drinking had added to the circumstances of the family unit.  That disruption was highlighted by the fact that his eldest son KELM, had already been moved to Walgett to live with relatives.  (This is a matter to which I refer later - see paragraph 107.)  Mr Saha’s conduct after his release in February 2011 is a matter that I take into account in evaluating the evidence about the effect of his second period of incarceration, and the other evidence about his asserted rehabilitation.

49.     During his second period of incarceration (February 2012 to July 2013) Mr Saha says he did begin to make a serious effort to recognise and address his excessive alcohol use, and recognised the problems to which it had given rise.  It appears the first part of the recognition of his problem with alcohol was medical advice that his drinking had damaged his liver, to such an extent that he only had 20% liver function.  He said the prison doctor told him that he could either stop drinking or die.  It was that advice that prompted his resolve to stop drinking.  In August 2012 he completed “Breakout”, a NSW Department of Corrective Services relapse prevention program relating to alcohol and other drugs.  Following the completion of that course he was noted (in November 2012) to have acknowledged his past problems with alcohol, and his use of cannabis at the time of his February 2012 offence.  He gave the appearance of being regretful and determined never to use either alcohol or cannabis again. He expressed the desire to participate in counselling, specifically including participating in Alcoholics Anonymous or undertaking an AOD (alcohol and other drugs of dependence) counselling course.

50.     The significance of Mr Saha’s November 2012 asserted determination not to relapse into alcohol abuse needs to be assessed against later events.  One of those is the 3 April 2013 psychologist’s report used in Mr Saha’s sentencing.  The psychologist had interviewed Mr Saha in February and March 2013 (via audio visual link) for the purpose of preparing a presentencing report.  Early in the report the psychologist stated that, despite poor audio in the audio visual link and some language difficulties, he “impressed as an amicable individual of functional intelligence”.  Later, immediately after discussing Mr Saha’s history of alcohol and drug use, she made the following observation:-

23. Mr Saha has not engaged in detoxification or drug rehabilitation but did undergo a 5 week “lapse/relapse program” in custody recently. Mr Saha advised that the program helped him to learn how to “save myself from drug and alcohol use”, however he could not outline any particular skills or gains from engaging in the treatment.  It is questionable whether Mr Saha would be able to adequately follow program content and this will, obviously, compromise his ability to benefit from intervention.

51.     In further passages in the April 2013 report the psychologist partly summarised Mr Saha’s circumstances, and her assessment of him, as follows:

34. Mr. Saha appears to be a man of functional intelligence, with no notable evidence of personality dysfunction.  However, his perceived problematic pattern of alcohol consumption following his father’s death in 2006 suggests poor coping and he does not appear to have fully regained stability since that point.  In 2010/2011 he was consuming alcohol problematically and this appears to have compromised his functioning, leading to stress and encouraging depressive symptoms.  The effect was seemingly cyclical that the greater the stress and depression Mr Saha experienced during that period, the more alcohol he consumed, again destabilising him, placing strain on his family and increasing stress.  Negative affect and alcohol intoxication seemingly also results in Mr. Saha’s poor anger management and he expresses his distress/anger in inappropriate ways, such as in the case of the current offence.

35. … He does not impress as an inherently antisocial individual, however, Mr. Saha did report a dependent pattern of alcohol abuse as a maladaptive coping reaction to his father’s death and which appears to have been encouraged by his closest friend.  Moreover, he reported psychological instability and poor coping since 2011, likely triggered by increasing alcohol consumption, which created a cyclical effect, worsening Mr. Saha’s mood, compromising his functioning and placing a strain on his marriage.  Thus, while alcohol appears to be the catalyst and precursor to Mr. Saha’s deterioration in mood over recent years, it is also a direct contributor to his offending in his case.

…

39.  In sum, alcohol exacerbating depressive affect and triggering poor anger management appears to have been the greatest contributing factor to this offence.  Mr. Saha expressed a willingness and intention to engage in treatment to address his alcoholism.  His account suggested alcohol has taken a significant toll on his life and relationships and he is motivated to address his problems now.

52.     Immediately following this last passage of her report, and in apparent contrast to the reservation she had expressed earlier (in her paragraph 23), the psychologist recommended that Mr Saha would benefit from the “Getting SMART program for drug and alcohol treatment”.  The clear inference from her report, and one on which the sentencing judge subsequently acted, was that Mr Saha had good prospects of rehabilitation, subject to his motivation, further education and ongoing assistance.

53.     Correctional services records indicate that immediately after the psychologist’s report, between about May and July 2013, Mr Saha did complete the “Getting SMART” course.  It is a 13 session program that covers a range of behavioural management topics, including self-management, self-acceptance, problem-solving techniques and goal setting.  A Correctional Services internal note of 21 June 2013 reported that he was an active participant in the program and appeared to be gaining insight into his behaviour and the effect of his drug use on his family.  On 16 July 2013 Mr Saha attended a second pre-release interview with a Corrective Services officer.  The notes following that interview record that Mr Saha understood his parole conditions, had successfully completed the 13 Getting SMART sessions, appeared to have gained some insight into his own behaviours, and to be preparing for his release in a realistic manner. 

54.     Few similar rehabilitation and educational programs have been available to Mr Saha since he went into immigration detention.  However he undertook one behaviour management program in April 2014, and he has received ongoing psychological assessment and treatment, for a very considerable part of the time he has been in detention, from International Health and Medical Services (“IHMS”) at the Villawood Detention Centre.  His attendances on IHMS are recorded in notes that cover the period from July 2013 up to the end of March 2015.  I have read every one of the notes of those attendances.  The significant aspects of the notes include:

(a)Mr Saha’s repeated acknowledgements about his excessive alcohol use, particularly, binge drinking, and the significant role it played in his offending (notes of 26 July 201324 November 2013; 3 January 2014

(b)frequently stated shame and regret about the harm (including financial stress) Mr Saha had inflicted on his family - as a result of the separation which his offending had brought about (notes of 26 July 2013; 28 October 2013; 10 December 2014

(c)insight into behavioural coping strategies Mr Saha had been taught and had learned to implement (notes of 3 January 2014; 17 March 2014; 21 October 2014; 30 December 2014

(d)gratitude for the fact that his incarceration had brought home to him, and stopped, the destructive behaviour to which his drinking had led (note 10 January 2014)

(e)a determination to avoid future alcohol use (notes of 26 July 2013; 24 November 2013; 3 January 2014)

(f)concern about his children and the impact of his absence upon them (note 1 July 2014)

(g)the consulting psychologist’s observation of Mr Saha’s strong attachment to the two younger boys during their pre-Christmas in 2014 (note 12 December 2014)

(h)concern about the welfare of his eldest son KELM (notes 7 May 2014; 1 July 2014; 17 February 2015; 20 March 2015).

55.     One view of the details recorded in the IHMS notes is that they merely reflect Mr Saha’s understandable, but essentially self-interested, regret about the circumstances of his detention, and the risk of refusal of his visa application.  But I am satisfied, as a result of reading all the notes, in chronological order, that they reveal more than merely self-interested concern.  I find that they are a reasonably accurate record of the facts of (i) the chronic subjective anxiety that Mr Saha reported, (ii) his consistently expressed, and apparently genuine, concern for his wife and family, and (iii) his genuine concern about the impact of his prolonged separation on them.

The MRT decision of June 2014

56.     It is relevant in this context, to have regard to the MRT decision of 5 June 2014.  The decision, more accurately the findings the MRT made about the nature of the relationship between Mr and Mrs Saha, are relevant because of (i) the period spanned by the IHMS consultation notes, (ii) the fragmented cohabitation period on which I remarked in paragraph 3, and (iii) the troubled domestic relationship particularly evidenced by the events between September 2009 and January 2010.

57.     The MRT’s 5 June 2014 reasons for decision reveal the principal issue addressed was whether or not Mr and Mrs Saha were in a relevant spousal relationship at two particular times - (i) the 22 February 2011 partner visa application date, and (ii) the June 2014 MRT decision date.  The MRT noted that Mr Saha was in immigration detention on both dates, and considered the physical separation that involved made it difficult to assess the nature of their relationship.  The MRT then reviewed objective evidence detailing aspects of the couple’s officially recorded addresses, their financial arrangements, and mobile phone call records (for the period from August 2013 to May 2014).  The MRT also evaluated their respective accounts of the relationship and of details of their children and their school arrangements, noting some inconsistencies in aspects of their respective accounts.  The MRT also took into account views expressed by family members and friends.  In relation to the former, the MRT noted that Mrs Saha’s brother in law confirmed his understanding of the genuineness of their relationship, despite expressing some surprise that the brother in law professed to have no knowledge of the offences for which Mr Saha had been gaoled.  In relation to the latter, the MRT recorded:

[37]  Also submitted after the Tribunal hearing were Form 888 statutory declarations and written statements made by relatives of the sponsor, members of the Walgett community, members of the applicant’s church group who regularly visit him in the Villawood Immigration Detention Facility, friends of the applicant, neighbours and the applicant’s father.  Each of the statements expresses the opinion that the relationship between the applicant and sponsor is genuine and sets out the basis upon which that opinion has been formed.

58.     The MRT was ultimately satisfied about the appropriate spousal characterisation of Mr and Mrs Saha’s relationship.  This emerges from the following passages of the MRT decision:

53. The Tribunal is satisfied on the basis of the oral and documentary evidence before it that the applicant and sponsor have, in the past, resided together with their children in a household at Bulah Way, Seven Hills. While the documentary evidence of that cohabitation is not extensive, it does span a period of many years and comes from a variety of sources.

54. There is some evidence before the Tribunal to suggest that in the period immediately prior to and following his first incarceration, the applicant may not have been residing at the same address as the applicant. It appears that the sponsor obtained one or more Apprehended Domestic Violence Orders in relation to the applicant in 2009 or 2010. Although the Tribunal does not have a copy of any Apprehended Domestic Violence Order, it has been claimed by the applicant that he was permitted to remain in the family household. The Tribunal also notes that the applicant’s first conviction appears to have been related to a breach of an Apprehended Domestic Violence Order suggesting that he remained in contact with or continued to reside with the sponsor after the order was made. The evidence contained in the psychological reports before the Tribunal also suggests that the applicant and sponsor maintained a relationship during this period, albeit a turbulent and sometimes violent relationship.

56. There is very little evidence before the Tribunal as to the financial aspects of the relationship, the social aspects of the relationship and the nature of the parties’ commitment to one another at the time of application.  In particular, the Tribunal has no evidence of telephone contact or financial support between the parties during the applicant’s first period of incarceration.  The evidence also suggests that the sponsor was not visiting the applicant during his first period of incarceration due to the existence of an Apprehended Violence Order.  These circumstances cause the Tribunal to have significant doubts as to whether the relationship between the applicant and sponsor met the definition of a ‘spouse’ relationship at the time of the visa application.

57. The evidence before the Tribunal as to the nature of the relationship between the applicant and sponsor at the present time is far stronger. The oral and documentary evidence indicates that, although not presently living together, the applicant and sponsor maintain regular telephone contact and reasonably frequent physical contact. The relationship appears to be widely recognised by members of the applicant’s and sponsor’s families and members of the community.  The psychological evidence suggests that both parties remain committed to a shared life together to the exclusion of others.  There is also some limited evidence of financial support from the sponsor to the applicant, which is consistent with the parties’ present circumstances.  In view of the Tribunal’s finding that the applicant and sponsor have previously lived together, the Tribunal is satisfied on the evidence that the present separation of the applicant and sponsor is temporary and that, if given the opportunity, they would live together again.  Having regard to all the circumstances of the relationship, the Tribunal is satisfied that, at the present time, the applicant is the ‘spouse’ of the sponsor as that term is defined in the legislation.

58. The Tribunal has considered what weight the evidence of current relationship should be accorded in considering the nature of the relationship at time of application.  In Jayasinghe v MIMA [2006] FCA 1700 (Middleton J, 12 December 2006) at [35], citing MIEA v Pochi (1980) 4 ALD 139 at 160, per Deane J, the Federal Court held that evidence of subsequent events in a relationship may be taken into account if it ‘tends to logically show the existence or non-existence of the relationship at that particular time’.  The Tribunal must consider all relevant evidence, which may include evidence of events subsequent to the date of application insofar as it assists in the task of determining whether the applicant and the sponsor were in a spouse relationship at the time of the application.  The question of whether particular evidence is relevant and the weight it is to be given is a matter for the Tribunal.

59. The evidence indicates to the Tribunal that during the period between 2002 and the time of application, the applicant and sponsor were, at least at times, in a spouse relationship.  The Tribunal is also satisfied that the applicant and sponsor are, at the present time, in a spouse relationship.  This suggests to the Tribunal that, although they were not living together, and although their relationship was deeply troubled, the applicant and sponsor probably did maintain a commitment to a shared life together to the exclusion of all others at the time of the visa application.  The evidence from third parties also suggests that the relationship between the applicant and sponsor continued to be recognised as a genuine and continuing married relationship during that period.  In the circumstances, the Tribunal accepts that the physical separation between the applicant and sponsor was temporary, such that they were not living separately and apart on a permanent basis, and accepts that the relationship was, at time of application, a spouse relationship.

59.     The MRT’s June 2014 conclusion about the genuine nature of the spousal relationship between Mr and Mrs Saha at that time is consistent with the impression noted in the psychologists April 2013 report (in paragraph 14).  It is also consistent with the impression I formed from my review of the IHMS consultation notes, which span a period both before and after the MRT decision.  Six months after the MRT decision, in his 5 December 2014 affidavit, Mr Saha commented on the fact of his regular appointments with IHMS.  He said that they were to help cope with his ongoing stress and anxiety, which he attributed to “remorse and stress… knowing that my family are struggling because of my actions”.  All of these considerations influence me to accept the genuineness of Mr and Mrs Saha’s relationship, Mr Saha’s efforts in maintaining it, and his involvement in the children’s welfare in the years since his 2012 incarceration.  Taking those matters into account, as well as the courses Mr Saha undertook during his incarceration in 2012 and 2013, I accept the genuineness of Mr Saha’s claimed motivation to refrain from future use of alcohol.

Expert assessments of Mr Saha’s rehabilitative prospects

60.     I noted earlier (in paragraph 50) the scepticism expressed in the psychologist’s April 2013 pre-sentence report about Mr Saha’s ability to benefit from a rehabilitative program.  I also noted the contrastingly positive subsequent assessment of his involvement in the Getting SMART program prior to his prison release in July 2013 (see paragraph 53.)  In October 2014 the IHMS psychologist who had been seeing him regularly reported that he had participated in a counselling program involving cognitive behavioural therapy to assist him in managing his mood states and reactions to psychosocial stressors.  He had engaged well in the counselling process and implemented the recommended strategies.  Even though he continued to struggle with low mood and anxiety related to his ongoing family separation during detention, the psychologist assessed that Mr Saha was “dedicated to the application of adaptive coping strategies and proactive problem solving”.

61.     The IHMS psychologist’s October 2014 recommendation was that Mr Saha receive further psychological treatment “to further the progress he has made”.  He continued to see the IHMS psychologist, had a mental health management plan prepared in December 2014, and continued his consultations with IHMS until late March 2015.  At about that time he was also referred to STARTTS (the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors).  That referral resulted in a further psychological assessment report in April 2015. 

62.     In the April 2015 report the clinical psychologist described Mr Saha as a very polite man who seemed to have a very sensitive and gentle nature, was soft spoken and amiable.  .  He seemed very remorseful and regretful.  He became repeatedly emotional speaking about his children.  He expressed chronic worry about his wife and children, how they lived and their financial difficulties, and he was particularly concerned about the difficulties his wife had in coping with the challenges of their situation.  The psychologist reported Mr Saha to be properly oriented to time place and person but that he was also experiencing an increasing forgetfulness and was worried about that as a new problem. The psychologist reported that Mr Saha sustained attention relatively well, seemed to comprehend all her questions and answered them directly as best he could.  The psychologist thought that Mr Saha displayed relatively good insight into his experiences.  She stated that he “particularly showed good insight into the intensification of his symptoms when relaying how his anguish about being detained and separated from his family had intensified his anxiety and depressive symptoms”.  Throughout the psychologist’s assessment (which was carried out on 7 April 2015) Mr Saha repeatedly expressed guilt and shame about his past behaviour.  He said that he had been a responsible man and had worked reliably, providing and caring for his family and the mistakes which he had made with drinking had changed his life.  He expressed extreme anxiety about his children expressing that “I watch them and care for them very carefully now that I am not there to see them, I am worried about them all the time”.

63.     In two later passages in the April 2015 report the psychologist said:

Mr Saha was visibly distressed and disheartened throughout the clinical assessment. He was finding it difficult to contain his emotions and on several occasions he broke down and cried bitterly.  It appears that his experiences during incarceration and the drug and alcohol courses which he has completed, have made him recognise and identify the reasons for his previous behaviour and of ways to cope with his pain in a more constructive manner.  Mr Saha was visibly remorseful and repeatedly expressed that he was “ashamed, felt guilty and sorry for what he had done”.

…

Mr Saha was apparently very worried about his wife and children’s living conditions and financial situation, and mentioned that his wife is finding it very difficult to cope with daily life.  He said it was challenging for them to come and visit him at the detention centre as they did not have a vehicle.  His agony about his son’s feelings was also very apparent as he said that he felt sad that his older son felt unhappy to be in their house without his father and that he had told Mr Saha that he would come home when his father is released from the detention centre.

64.     The psychologist reported that although Mr Saha was dejected and disheartened he seemed to be hopeful for the future.  His previous boss had kept in touch and said he could resume his old job on release.   He felt very loved and supported by the people in his life, including members of his wife’s family.  However the psychologist felt that Mr Saha’s detention experience was undermining his mental capacity to cope with his difficulties, and was depleting his psychological resources.  She reported that he was under great strain, and that he reported a decline in his overall health, including his motivation and memory.

65.     Mr Saha was reviewed again at the Villawood Immigration Detention Centre on 8 April 2016 by Dr Susan Pulman.  Dr Pulman is a very experienced, and highly qualified, clinical neuropsychologist and forensic psychologist, with extensive experience as an expert witness.  Dr Pulman was asked to address specific questions about whether Mr Saha had any neurological condition or illness that might cause him to re-offend or impair his decision making, impulse control or ability to comprehend the consequences of his actions.

66.     Dr Pulman’s 14 April 2016 report described Mr Saha as having been tearful at times during the assessment interview, and distressed when discussing his wife and children and the difficulties they faced. 

67.     Dr Pulman noted that Mr Saha gave a history of various assaults during his upbringing in Bangladesh, and in July 2009, when he was briefly hospitalised following an assault at the hotel where he worked.  She noted that he reported cognitive difficulties (of memory and consultation and problem solving) since the July 2009 assault, and emotional distress related to his guilt and shame over his offences and resultant incarceration and detention.  The history of alcohol abuse that Dr Pulman obtained followed the death of Mr Saha’s father in 2006, and involved often drinking to the point of losing consciousness. 

68.     Dr Pulman administered a range of neuropsychological tests in order to obtain qualitative information about Mr Saha’s cognitive abilities.  She reported that the test results for Mr Saha’s overall level of intellectual functioning fell within the extremely low range.  More specifically his individual result was below the 1^st percentile.  However she also noted there was a significant difference between his verbal comprehension and his perceptual reasoning scores.  She observed that the fact that the test was in English, Mr Saha’s second language, was a potentially confounding consideration in interpreting his overall level of intellectual functioning.

69.     Mr Saha’s verbal comprehension index was again within the extremely low range.  His word knowledge was very poor, as were his verbal abstract reasoning skills and general knowledge.  His non-verbal perceptual reasoning index fell within the borderline to low average, with his individual score falling at the 5^th percentile.  His working memory index fell within the extremely low to borderline range. 

70.     Dr Pulman referred to a number of tests intended to provide an objective indication of Mr Saha’s levels of motivation and effort.  She reported that Mr Saha’s overall performance was unsatisfactory and well below expectations.  (In three tests his results were in the lowest decile of people with a history of traumatic brain injury and/or major depression.)  She considered that these results required some caution in their interpretation, because they were likely to be an underestimate of his actual abilities.  Dr Pulman explained that:

Given his reading ability in English language suggests his premorbid level of intellectual functioning falls at least within the Low Average range, his Extremely Low performance on most components of intelligence and memory are unlikely to be an accurate reflection of his true level of functioning.  It remains possible however that his motivation was so low that his ability to engage in the assessment was reduced.

71.     A consideration relevant to the possibility referred to in that passage in Dr Pullman’s report is the result of her interpretation of his responses to a self-report test intended to provide an indication of his affective status.   Dr Pulman said that Mr Saha’s responses indicated that he had symptoms that fell in the Moderate range for Depression and Stress, and in the Severe range for Anxiety.  Mr Saha said that he felt “down most of the time”.  (I note that this impression of Mr Saha’s affective status is consistent with the observations and concerns that had been expressed a year earlier in the April 2015 report by the STARTTS psychologist.)

72.     Dr Pulman’s ultimate opinion, in relation to the questions she had been asked to address, was made difficult by her reservations about the reliability of the test results she had obtained.  She expressed her opinion in the following passage:

The results of current neuropsychological assessment are difficult to interpret due to effort measures which suggest he may not have fully engaged in the process of assessment of his cognitive abilities.  Therefore, any potential impact from his history of head injuries or alcohol dependence cannot be ascertained.  However, there is no prior history of substance use prior to the death of his father and grandmother and it is likely that his overwhelming grief contributed to his substance dependence leading to the commission of the offences for which he was charged.

73.     Although Dr Pulman described the results of her neuropsychological testing as “difficult” to interpret, they were so apparently poor that they revive the kind of reservations expressed in the April 2013 psychologist’s report (see paragraph 50 above).  For that reason Dr Pulman was asked, in the course of the current hearing, to address a number of additional questions.  These, in so far as they related to Mr Saha’s likelihood of re-offending, were to the following effect:

(a)whether the apparently different histories relating to the details of Mr Saha’s reasons for coming to Australia between Dr Pulman’s report and the earlier report of April 2013, had any implications for the assessment of Mr Saha’s veracity and the reality of his prospects of rehabilitation

(b)whether Mr Saha’s increasing abuse of alcohol after 2006 could not reliably be attributed to grief over the death of his father and grandmother in 2006, and that it was more likely the offences that occurred after 2009 were more directly related either to his “responsibilities and pressures at home” or, since he “may” have started taking drugs in 2009, a result of falling in with the “wrong crowd”

(c)whether Mr Saha had symptoms of brain injury and whether or not a tendency to be aggressive was indicative of or associated with low cognitive skills

(d)whether Mr Saha’s poor neuropsychological test results gave rise to an opinion that he was unlikely to be assisted by the rehabilitative courses he had attended

93.     For all these reasons, the first primary consideration - the “protective issue” - tends to weigh significantly against the approval of Mr Saha’s application.  The real weight of the protection issue depends however on the assessment whether the risk of his re-offending is nevertheless “acceptable” in the particular circumstances.  That assessment, because it looks to, amongst other things, the situation of his wife and children, is also influenced by the weight to be accorded to the “best interests” of Mr Saha’s three children.

The MRT’s views about the children’s best interests

94.     The MRT’s June 2014 decision expressed its view about the best interests of the three children, in the context of considering the relevant criteria for an exemption to permit an “onshore” application for a partner visa.  Noting the indication in the relevant Explanatory Memorandum (that the exemption discretion would only be exercised on “strongly compassionate” grounds) the MRT went on to declare its satisfaction that the discretion should be exercised.  In so doing the MRT expressed its view about the effect of any further physical separation of Mr Saha from his wife and children.  This was clearly set out in paragraph 68 of the Tribunal’s reasons - in the following terms:

68. For the reasons given above, the Tribunal is satisfied that the applicant and sponsor (i.e. Mrs Saha) were in a long-standing relationship at the time the visa application was made. The Tribunal is further satisfied that there were three Australian citizen children of the relationship at the time of application. The Tribunal is satisfied that further separation of the applicant from his sponsor and children would have a significant detrimental impact on them both psychologically and materially.

95.     Similar views were expressed in one of the commendation letters provided in support of Mr Saha’s application.  This letter, from the Walgett Local Aboriginal Education Consultative Group Incorporated, described Mrs Saha’s origins in, and family connections with, the Walgett aboriginal community.  It provided a short, but poignant, explanation of the disadvantages to which indigenous people, particularly women with families, are exposed.  In relation to the importance of the family unit the letter went on to say this:

Historically the social injustices against Aboriginal people are well documented; Aboriginal people trying to raise children is a difficult task poor educational and health outcomes, high incarceration rates of young male and higher unemployment rates are prevalent today. …

Families provide children with a sense of belonging and a unique identity. Families are, or should be, a source of emotional support and comfort, warmth and nurturing, protection and security.  Family relationships provide children with a critical sense of being valued and with a vital network of historical linkages and social support.  The Aboriginal Education Consultative Group strongly believes in doing what is best for the children and children need both a mother and father to support them in their life’s journey.

This family does not need any more hardships placed on them.

96.     Another matter of significance is the November 2013 commendation letter provided by the person Mr Saha had injured in the February 2012 incident.  In that letter the victim stated that he had no ill feelings towards Mr Saha over the incident.  He also added these relevant observations which, though inelegantly expressed, convey a clear sentiment:

…as a caring father in Mithu I have seen, I believe children have a right to be with their father as this is an integral part to their fragile development.  Families need to remain together and not be ripped apart.

97.     These views reflect general desiderata which cannot be gainsaid.  They lie at the heart of what Brennan J said in Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 at 275. There His Honour spoke about the “grave detriment” involved in removing from Australia the father of three Australian citizen children, aged respectively 16, 14 and 5. His Honour regarded the prospect as likely to be “destructive of their prospects in life”.

98.     The present review proceedings require, in view of the exegesis in Direction no 65, a specific evaluation of the best interests of each child.  Nevertheless, the value of family life which underlies both the observation of Brennan J and the sentiments expressed by the MRT, remain relevant to this consideration.  The practical consequence of the visa refusal decision in the present instance is that Mr Saha will not be granted the privilege of Australian presence and he will be “separated” - likely permanently - from his family.  The consequences of visa refusal, upon the interests of the three children, are therefore necessarily likely to be permanent, and inherently likely to be grave.

99.     In addition to the generality of the inherently likely effect of permanent paternal separation on the three boys, it is relevant to take into account a matter that is common to all three of their interests.  It is the extent to which Mr Saha has been, in many respects their primary caregiver.  I have referred earlier to Mrs Saha’s personal difficulties (affecting both her health, her functional literacy and her ability to manage the children).  Amplifying those matters Mrs Saha gave the evidence to which I refer in paragraph 117 below.  Given that evidence it is likely that, if the household is restored to have the three children re-united with their parents under the one roof, it is Mr Saha who is likely to be the primary care giver and to be significantly more able than Mrs Saha to fulfil that role effectively and in the best interests of each of the children.  This is not expressed as a criticism of her.  It is simply an acceptance of her own evidence, and an emphasis on the best interests of each of the boys. 

100.    None of the preceding comments is really a matter of controversy.  The Minister’s closing submissions in the present case conceded that, but for concerns about the risk of Mr Saha re-offending, it would of course be in the best interests of each of the children that he remain in Australia.  That submission brings into clear focus the importance of a clear understanding of the best interests of each child.

Mrs Saha - views and interests

101.    The children’s best interests require some consideration of Mrs Saha’s situation.  Mrs Saha is 51.  She was born in Walgett, and lived there until about 2000 when, following a breakdown of the previous relationship, she moved to Sydney.  She receives Newstart Allowance. She also has a number of health problems.  It is unnecessary to detail these to any significant extent.  It is clear that given her background, limited education and health she has little prospect of employment, and is completely financially dependent upon her Centrelink entitlement.  In the past she and the three boys have benefited from the financial contribution Mr Saha has been able to make to the family unit during his periods of employment. 

102.    I have already referred to Mrs Saha’s acknowledgement that Mr Saha was the children’s primary carer and, when they were living together, was the person really responsible for the household functioning.  That acknowledgement is apparently underscored by KELM’s move to live with Mrs Saha’s niece after Mr Saha went into custody in 2010, his unsuccessful return to Sydney in 2014, and his subsequent return to Walgett and Mrs Saha’s niece.

103.    Mrs Saha said of the early years of her relationship with her husband that he was always very good to her.  He usually worked, financially supported her and, after they arrived, appropriately provided for the children.  There are elements of overstatement in these claims, as emerged from later cross-examination of both Mr and Mrs Saha.  Those elements relate to Mr Saha’s absence of regular employment in the period from 2005 to 2007, as a result of his having visa conditions which limited his ability to work.  However Mrs Saha was definite in her recollection that their relationship had only become destructively troubled as a result of Mr Saha’s excessive drinking.  Like him, she associated that deterioration in their relationship to the time after the death of Mr Saha’s grandmother, and father, in 2006.

104.    Mrs Saha acknowledged (in her 15 April 2016 affidavit) that Mr Saha’s violent offending has been directed mainly (but not exclusively) at her.  But she has said that he has only been violent towards her when he has been affected by alcohol.  Speaking of his behaviour when not affected by alcohol she described her husband as a very good father. She said that before he went to gaol he did the cooking in the house and was a very good cook.  He used also assist with the welfare of the children, with bathing and getting ready for school.  He was an appropriate and constructive disciplinarian with the children if they misbehaved.  He was never violent towards any of them.  Nor had they witnessed any occasions when he was violent towards her.  She said that Mr Saha was only ever violent when he was intoxicated.

105.     Speaking of their past conflict, specifically the occasions when Mr Saha had become violent, and perhaps consistent with her earlier acknowledgement about how she was liable to act when she got annoyed (see paragraph 30 above), Mrs Saha said she thought they had both been at fault in what had occurred.  Speaking about their interactions in more recent times, that is during Mr Saha’s immigration detention, and the hopes and challenges involved in his return to cohabitation with her and the children,  Mrs Saha said in her affidavit

33       Mithu has promised me repeatedly that he won’t drink alcohol again.  Every time we speak on the phone or see each other we talk about our plans for the future.  And I agree that the most important thing is for our family will be together.  Mithu has told me that he will do whatever it takes to keep the family together, and this includes giving up drink for good.

34.      I don’t drink often and I don’t keep alcohol in my house. If Mithu comes home I would not allow other people to bring alcohol into our home in future.

106.    Mrs Saha’s circumstances and abilities, as well as her own views about the desired family future, and her confidence in and support of Mr Saha, are relevant matters to take into account in assessing the best interests of the three boys.

best interests of the children - KELM

107.    KELM is now in Year 8 at school and almost 14 years old.  Both Mr and Mrs Saha say that KELM’s behaviour after Mr Saha went to gaol in 2010 significantly changed.  He became very aggressive at home, hitting his siblings, smashing into the walls and resisting any kind of disciplinary control from Mrs Saha.  Apparently he blamed her for his father’s absence and, as Mr and Mrs Saha seem to think, resented the significantly reduced financial circumstances that Mr Saha’s absence produced.  KELM’s behaviour was sufficiently bad that Mr & Mrs Saha decided it would be “best for everyone” if he went to live with her niece’s family in Walgett. 

108.    Mrs Saha’s niece provided a recent letter in which she acknowledged that KELM had been living with her “on and off for the past 5 years”.  She described him as a very intelligent caring boy who had developed a close relationship with her (adult) children and with two of her sister’s children (one pre-teen and one early teenager) who also live with her.  She said that KELM loved sport and participated in a program conducted by the local PCYC.  However he did not like attending school and had been in trouble at school from time to time, although she said not for anything serious.  She described his dislike of attending the local high school as really associated with its reputedly disadvantaged status.  (She referred to various items of unfavourable media publicity relating to the school in the early part of 2015.)  She expressed the view that KELM would likely receive a better education if he was able to return to Sydney.  In addition, his return would also have the additional benefit that, after completing school he would be likely to have better employment prospects.

109.    Mrs Saha’s niece said that KELM missed his brothers, but would not return to live in Sydney with his mother, unless Mr Saha was also there.  She said that Mr Saha made a genuine effort to participate in KELM’s upbringing and typically telephoned at least twice a week to speak with his son.  She would typically relate to Mr Saha any concerns or difficulties that KELM had.  She said that KELM has a positive relationship with his father. She expressed a strong view that Mr Saha was an important person in KELM’s life and that it was very much in his best interests, particularly in the next few years of KELM’s development, for Mr Saha to be allowed to remain in Australia and continue to be closely involved, as a positive influence, in KELM’s life.

110.    Mrs Saha’s niece gave oral evidence by telephone.  Her oral evidence covered both her knowledge and observation of the relationship between Mr and Mrs Saha, and KELM’s behaviour and relationship with his mother and father.  She has known Mrs Saha for something over 20 years.  She remembered the fact of Mr and Mrs Saha’s occasional visits to Walgett, and her own trips to Sydney when she stayed with them.  She did not recall any visit when their relationship was bad, and she did not recall Mrs Saha ever speaking about the relationship to her.  She was aware of the fact Mr Saha went to gaol in 2010 for assaulting Mrs Saha, but she was not aware of the specific details of the incident. 

111.    The niece’s recollection was that KELM came to live with her in 2011.  She fixed on that timing because it was just before her own son’s 18^th birthday.  She recalled occasionally taking KELM down to Sydney to visit Mr Saha - either in gaol or detention (her evidence was not clear on the details).  She did not have a good recollection of the specific reasons why KELM came to live with her.  She discounted (as the first she had heard of it) the suggestion that it was related to KELM’s complaints about Mrs Saha’s straightened financial circumstances.  Her understanding was that KELM had been generally unco-operative with his mother, refusing to do what she asked of him, and that Mrs Saha could not cope with him.  Neither did the niece recall KELM refusing to live with his mother, although she said that she had not really spoken with KELM about his relationship with his mother.

112.    The niece said that she moved away from Walgett, and KELM came back to Sydney to stay with Mrs Saha, sometime in either late 2013 or early 2014.  But he came back, in about October 2014, when she returned to Walgett.  She said the reason for that return was that he was a “bit full on” and Mrs Saha could not handle him.  But, in response to a specific question as to whether KELM had any behavioural problems, the niece said that he was a “pretty good kid”, he listened to her and his behaviour with her was “pretty good”. 

113.    The niece said that KELM would really like to live with his father.  Her understanding, and observation, was that the father and son got on “pretty good” and that KELM’s relationship with his father was rather better than with his mother.  Her feeling was that KELM would be better off returning to Sydney and living with his father.  Against the background of her (general but limited) knowledge of Mr Saha’s offences, she expressed the view that Mr Saha had changed.  She based that view on her regular conversations with him.  (Mr Saha rang her mobile phone several times a week, mainly in order to speak to KELM, and she spoke to him with that kind of regularity.) 

114.    I was impressed by the niece’s evidence.  Her generosity towards KELM, over what is now several years, bespeaks a genuine concern for his welfare, direct knowledge of his relationship with his father, and awareness of KELM’s preference in relation to continued close contact with his father.  I regard the niece’s evidence as strongly supporting the view that KELM’s bests interests are for his father to remain in Australia.

115.    Mr Saha himself said that he spoke to KELM several times a week.  In his oral evidence he recounted a recent telephone conversation where KELM had left home and had been associating with other youngsters whom Mr Saha regarded as a bad influence.  Mr Saha said that he gave KELM advice over the phone, apparently advice KELM did not want to hear because he hung up on his father.  However, pointing to the wisdom and efficacy of his advice Mr Saha pointed out that the following day KELM had in fact returned home.

116.    KELM has provided various statements supporting his father’s application.  In about April 2015 he wrote a short (6 line) hand written note saying that he really loved and missed his father and wanted to go back home to live with his brothers in Sydney.  More recently he signed a type written letter (dated 11 April 2016).  In that letter he said he had a close relationship with his father and spoke at least 3 or 4 times a week, sometimes every day. He said these phone calls were very important to him because his father was both supportive and someone who gave good advice.  He said he loved his father and regarded the possibility of losing him for the rest of his life as “extremely stressful”.  Some of the actual wording in this typewritten letter is rather more sophisticated than I would expect from a 13-year-old, and its actual wording probably involves the turn of phrase of a more sophisticated linguist.  Nevertheless, I accept that the letter expresses the reality of the strength of KELM’s genuine feelings for his father.

117.    One of the reasons why I accept that reality was provided by evidence Mrs Saha gave about the extent to which Mr Saha had been the real care of the children, right from their earliest years.  She said that he was the one who did all the usual household tasks such as cooking, shopping and cleaning.  He was the one who prepared the children’s meals got them off to school in the morning and was, overall, their real primary carer. This had been the case from their earliest years.  Even when the children were toddlers it was Mr Saha who had been the one to change nappies and look after them, at least primarily.  Mrs Saha said that she couldn’t maintain the household nearly as well as Mr Saha.

118.    Looked at from the point of view of the apparent strength and genuineness of the emotional bonds between Mr Saha and KELM, the apparent difficulties he has with his mother, and the practical considerations (relating to the comparative disadvantage of an upbringing in Walgett) described by Mrs Saha’s niece, it is difficult to reach any conclusion than that it is in KELM’s best interests for Mr Saha to be allowed to remain in Australia.  Whilst it is fact that KELM and Mr Saha have been able to maintain strong affectionate bonds despite the five-year absence whilst Mr Saha has either been in custody, prohibited from residing with the family (during most of 2011), or in detention, distance parenting is no substitute for affectionate proximity in the upbringing of a young teenage boy.  That is the effect of the view of Mrs Saha’s niece, and it is one that cannot be readily dismissed. 

119.    As the delegate found in the reasoning in the refusal decision, the visa refusal decision is not in KELM’s best interests.  KELM’s best interests are for his father to be able to remain in Australia.  There is, for the reasons that underlie my findings in relation to the “protective issue”, some risk that the prospect of benefit to KELM from his father’s restoration to the family unit may be disappointed by the realities of future events.  But in weighing that uncertain risk against the potential detriments of continued, and likely permanent, separation from his father, KELM’s “best interests” at the present time point strongly in favour of the visa grant.

Best interests of the children - MJM

120.    MJM is now just over 12, and was about six years old when Mr Saha went into custody in January 2010.  Thereafter, until recently, he stayed living with his mother.  Mr and Mrs Saha said he has now gone to live with a friend.  Various reasons have been given for the move: that he wanted to have time away from Mrs Saha; that he wanted to be able to catch a bus to school, and that he did not like, and indeed was frightened by, people coming to the house and offering drugs to him.  (Mrs Saha explained that they did not live in a good area, although it was getting better.) 

121.    The suggestion (offered by Mr Saha) that MJM wants “time away from his mum” resonates both with KELM’s long-standing preference and with Mrs Saha’s own recognition of the difficulties that she encounters, when left to her own devices, in providing a satisfactory household environment.  But it is also no doubt a factor that he does not like where Mrs Saha lives and, in particular, has been frightened by an experience last year when people wanting to buy drugs came to the house.

122.    MJM has also provided statements supporting his father’s visa application.  One of them is another handwritten letter dated 3 April 2015. It includes a simple, but nonetheless eloquent, statement that “I want my dad home without my dad we’re missing school because mum is sick. We have been a hard time without our dad”. 

123.    Mr Saha said in his April 2006 affidavit that he speaks regularly (i.e. every week) to MJM on the phone, and that he and his younger brother are also regular visitors at the Detention Centre.  The fact of their apparently good relationship appears to be corroborated by observations made by IHMS staff at Villawood (see paragraph 54(g) above).

124.    Mrs Saha described MJM as a very good boy and a keen young rugby league player. She said he always gets lots of positive comments from his teachers in his school reports and wins awards.

125.    The benefits to MJM from his father’s continued presence in Australia are less readily identified than in the case of KELM.  He lives in Sydney, is doing well at school, and does not appear to have any behavioural proclivities that require his father’s immediate presence.  But he is also younger than KELM, likely has a strong bond with his father, and would benefit both emotionally and materially from his father’s presence.  He is also likely to benefit from having both of his siblings to share his daily life - a prospect that seems unlikely to occur unless and until Mr Saha re-joins the family unit.  To that extent, and for reasons similar to those I expressed in the case of KELM, the visa refusal decision is not in the best interests of MJM.  His best interests weigh strongly in favour of the visa grant.

Best interests of the children - TKS

126.    TKS is currently 9 years old.  He lives with his mother and attends a nearby primary school.  Mrs Saha says he is cooperative and obedient.  He has a close relationship both with her and with his older brother MJM.  She says that his school reports always have positive comments. 

127.    TKS was a little over three years of age at the time of Mr Saha’s January 2010 offence and incarceration.  He would have been somewhere around four and a half when KELM went to live at Walgett.  Consequently, apart from whatever interaction occurred in 2011, most of his contact with his father would have been as a visitor to prison or the Villawood Detention Centre.  His contact with his oldest brother KELM would have been limited, apart from the period in 2014 when KELM briefly returned to live in Sydney.  

128.    Like MJM, TKS is reported to have a good relationship with his father.  There is, in addition to the observations to which I referred in paragraph 54(g) above, TKS’  letter supporting his father.  It is another simple handwritten statement in which he says he misses his father, and loves him.

129.    TKS’s best interests in relation to his father’s presence in Australia are, in my view, similar to those of MJM - except in the respect that his likely lesser experience with his father in his years from age three and half onwards, perhaps diminishes somewhat the strength of their relationship.  But that possibility, of a lesser degree of interaction in his earliest formative years, perhaps adds to the importance now of the visa grant in consideration of TKS’s best interests.  A visa grant that permitted Mr Saha’s return to the family unit would likely strengthen their paternal bond, and provide a more complete and less stressed family unit than has been the case for the last few years.  Again, on the basis of reasoning similar to that I expressed in paragraph 119, the visa refusal decision is not in TKS’s best interests.  As in the case of the other two boys, his best interests weigh heavily in favour of the visa grant.

Submission about expectations of the Australian community

130.    I outlined earlier in these reasons the matters to which Direction no 65 requires regard in relation to this third “primary consideration” (see paragraph 15 above).  There I identified the clarity of the stated expectation that “non-citizens … obey Australian laws”.  But it is also implicit in the use of the word “may” in the following parts of Direction no 65 at paragraph 11.3(1) that the expectation of obedience is not the only aspect of community expectation. 

131.    The submission made on Mr Saha’s behalf in relation to the expectations of the Australian community is poignant and, subject to one matter, powerful.  It is in the following terms

54.  The cumulative weight of Mr Saha’s offences and convictions does not justify the refusal of Mr Saha’s Partner Visa application.  In circumstances where Mr Saha has served the entirety of his sentences, he is extremely regretful of his conduct, and has undertaken significant rehabilitation with respect to his alcohol dependency, the Australian community would not expect that he be further punished by being permanently separated from his Australian family to whom he is very much committed.  Rather it is submitted that the expectations of the Australian community would be for three Australian indigenous children to have their father present in their lives, particularly when the evidence before the Tribunal suggests a strong, mutual bond between father and sons and a disintegrating, struggling family in Mr Saha’s absence.

132.    The qualification that applies to the submission is the inappropriate reference to the concept of punishment.  It is no part of the purpose of the exercise of the visa decision discretion to either punish, or for that matter reward, a particular applicant.  But the grant of a visa, of course, bestows the privilege of Australian residence, or continued Australian residence.  Correspondingly a refusal decision withholds that privilege.  Withholding such a privilege may have significant disadvantages for an applicant, their family members and other people associated with them.  Because of those disadvantages, and no doubt also because of the disappointment reasonably to be anticipated from the refusal decision, a disappointed visa applicant, and those advocating their interests, may regard an adverse decision as a form of “punishment”.  But that is not the purpose of the visa cancellation power, and the fact that its exercise may involve hardship that is capable of being perceived as a form of punishment, neither precludes the exercise of the power, nor marks the limits of its proper exercise:  Tanioria v Minister for Immigration and Border Protection [2016] FCAFC 43 at [34] - [38].

133.    My acknowledgement of the force of the submission I have set out above is based upon interpreting it as if it did not contain reference to punishment (and thus omitted the words which I have struck through in the passage set out above).  In particular, I think there is force in the submission’s characterisation of the family unit as struggling, and at risk of disintegrating, in Mr Saha’s absence.  Once one has found, as I have, that the best interests of the three boys is to have their father present, and once one also takes into account, as I find the evidence also establishes, that Mrs Saha is significantly disadvantaged in her ability to provide a desirable level of competent and parental care in a home that includes all three of her children, then in those circumstances, and taking into account the nature and extent of Mr Saha’s past offences, I think the community expectation favours the visa grant.  In arriving at that conclusion I also have regard to the views to which I referred in paragraphs 94 to 100 above.

The Victim impact of a visa grant

134.    One of the “other” considerations Direction no 65 requires to be taken into account is the impact of a visa applicant’s offences on the persons who are adversely affected by them:  see paragraph 16 above.  In the present matter there are at least two, and potentially three groups of people who fall within the class of relevant “victims”.  They are (i) Mrs Saha, as the person most likely to be directly affected by (and indeed to be the direct physical victim of) any future re-offending; (ii) the children, and (iii) other people, exemplified by the person Mr Saha wounded in the February 2012 incident.

135.    The Minister’s submissions emphasise that any future re-offending by Mr Saha could have serious consequences for Mrs Saha.  The Minister’s submissions said that the concerns for Mrs Saha’s welfare were not just for her physical integrity, but also for her psychological wellbeing.  The Minister emphasised the potentially harmful family environment to which Mrs Saha would be subjecting herself and her children, if Mr Saha returned and repeated the offence of January 2010, or the alcohol use, and typically associated aggression that preceded and triggered it.  The Minister’s submissions also pointed out that the potential victims in such an environment included the three boys.  That was so, at least as a matter of potential, despite the absence of any prior suggestion that Mr Saha’s offences and intoxication had in any respect resulted in violent conduct directed at any of the children.

136.    The Minister’s submissions do not lack force.  But against them must be weighed Mrs Saha’s own preference, her commitment to the relationship with her husband, the genuineness of his desire to return and preserve the family unit, and the history of their relationship, with its apparently harmonious and productive early years from 2002 to 2006, and Mrs Saha’s evidence that when Mr Saha stays away from excessive use of alcohol, he is a good partner and provider.

137.    My view is that Mrs Saha is the person best placed to make an informed assessment of her children’s best interests, her own interests, and whether or not Mr Saha’s return to them is acceptable.  In saying that she is best placed to make that assessment, I by no means intend to convey that the visa grant discretion is to be exercised merely according to her wishes.  But her wishes deserve to be given weight, to the extent that they appear to be considered, reasonably held, supported by other considerations and are otherwise consistent with the required regard to the requirements of Direction no 65, and the proper exercise of the discretion.

138.    The fact that Mrs Saha’s views are considered, cannot be gainsaid.  She knows Mr Saha better than anyone else does.  She has had years of dealing with the consequences of his intoxication, and she has borne the brunt of its effects.  She has, in recent years, had assistance from the Salvation Army in dealing with the difficulties caused by Mr Saha’s offences and separation.  In addition, despite Mrs Saha’s communication difficulties, she impressed me as a feisty lady who was well aware of both the risks and the potential benefits of Mr Saha’s return to the family.  In July and November 2013 she handwrote short plaintiff letters supporting her husband’s visa application, and expressing both her genuine regard for him and her desire that he be allowed to return to the family unit.  In the course of the MRT proceedings in 2014, Mrs Saha gave evidence.  She impressed the MRT, as she impressed me, with the reality of her genuine desire to have Mr Saha return to the family unit.

139.    In relation to the three boys, there is some potential for them to be adversely affected by future re-offending by Mr Saha.  But there is, to my mind, no satisfactory evidence to establish that the boys have thus far been adversely affected (other than indirectly by Mr Saha’s incarceration and detention) by his past offending and intoxication.  The risk of future adverse effects is there to be recognised.  But it must, to my mind, be balanced against the benefit of Mr Saha’s continued presence in Australia and the restored integrity of the family unit. 

140.    In relation to the prospect of re-offending affecting other people, such as the friend injured in the February 2013 incident, that too is a risk that must be considered, and regarded as real.  But it is, to my mind, a risk substantially taken into consideration in the views I have reached earlier in these reasons in relation to the “protective issue”.  It is part of the overall considerations in deciding whether Mr Saha presents an unacceptable risk in the totality of the circumstances.

The Family impact of visa refusal

141.    The remaining “other” consideration to which Direction no 65 requires regard is the impact of a visa refusal decision on the visa applicant’s Australian resident family members.  In the present case, where Mr Saha has no other relatives in Australia, the impact to be considered is that of visa refusal on his wife and children.

142.    That impact is likely to be significant.  It can be seen in the existing fragmentation of the family unit, the unlikelihood of the three brothers sharing a common upbringing, and Mrs Saha’s likely continuing financial difficulty and difficulty in managing and coping alone.  In reality there is a gloomy prospect of the family group remaining closely bound in Mr Saha’s absence from Australia.  There is also a gloomy prospect that the three boys and their mother would stay together and develop the bonds a stable and loving family life can provide.  It seems, from both Mr and Mrs Saha’s evidence, that Mr Saha’s past devotion to the children, and his income earning potential, has been the principal element in the happiness that they claim to have enjoyed as a family unit - up until the time he lapsed into alcohol abuse.

143.    Whether the more fortunate prognosis, initially dependent on the success of Mr Saha’s partner visa application and subsequent release, will eventuate cannot be predicted with any certainty.  Neither Mr Saha nor Mrs Saha is assuredly equipped, given their respectively conceded past behavioural shortcomings, to cope with the stresses that family life is likely to present for them.  Nevertheless, they can both point to a significant period of earlier tolerance and harmony in their relationship, they both claim to have insight into their respective contribution for past conflict, Mr Saha has resolved to remove alcohol from his life, and they both express commitment to achieving a restoration of their previous family relationship.

Decision

144.    For the reasons I have set out, two of the three “primary” considerations weigh in favour of the visa grant.  The “protective issue” points against the visa grant, and the “low tolerance” for the kinds of offences Mr Saha has committed, given the significance of the risk of his re-offending, point forcefully against the visa grant.  But against this is the potential, and likely permanent, impact of the visa refusal decision on the family unit, and the lives of Mrs Saha and the three boys if the visa refusal decision is upheld.  In the totality of the circumstances I have addressed, and taking into account my views about the comparative weight to be accorded to the respective primary and other considerations, the preferable decision is to set aside the refusal decision.

I certify that the preceding 144 (one hundred and forty -four) paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor SC, Senior Member.

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

Associate

Dated 17 May 2016

Date(s) of hearing	3, 4, and 12 May 2016
Counsel for the Applicant	Ms E Bathurst
Solicitors for the Applicant	Salvos Legal
Counsel for the Respondent	Ms R Francois
Solicitors for the Respondent	Australian Government Solicitor

SCHEDULE TO DECISION AND REASONS