Morris v Minister for Immigration and Border Protection
[2018] AATA 3374
•11 September 2018
Morris and Minister for Immigration and Border Protection (Migration) [2018] AATA 3374 (11 September 2018)
Division:GENERAL DIVISION
File Number: 2018/0648
Re:Juliana Morris
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Senior Member Dr M Evans
Date:11 September 2018
Place:Perth
The Reviewable Decision is affirmed.
........................[sgd].............................
Senior Member
CATCHWORDS
Migration – decision to refuse application for Partner (Provisional) (Class UF) visa – subclass 309 – consideration of criminal conduct - whether there is a risk of engaging in criminal conduct - traffic offences – whether traffic offences are “criminal offences” – five traffic offences in three years – driving offences – Ministerial Direction no 65 – protection of the Australian community – expectations of the Australian community – risk to the Australian community – likelihood of re-offending – impact on family members – Applicant found not to be of good character – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 25(1), s 29(2)
Migration Act 1958 (Cth) – s 338(5), s 347(2)(b), s 499(1), s 500(6B), s 501(1), s 501(6), s 501(6)(d)(i)
Road Traffic Act 1975 (WA), s 49(1)(a), s 49(3)(c), s 62, s64(1)
CASES
Apire and Minister for Immigration and Border Protection [2014] AATA 193
Do and Minister for Immigration and Border Protection [2016] AATA 390
Furlong and Minister for Immigration and Border Protection [2017] AATA 3014
Irani and Minister for Immigration and Border Protection [2017] AATA 3051
Kohli and Minister for Immigration and Border Protection [2017] AATA 1326
Molloy and Minister for Immigration and Border Protection [2017] AATA 2712
QKVH and Minister for Home Affairs [2018] AATA 1855
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
Zaya and Minister for Immigration and Border Protection [2017] AATA 366
SECONDARY MATERIALS
Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA – paras: - 6.1, 6.2, 6.3, 7, 7, 8, 11, 11.1, 11.1.1, 11.1.2, 11.2, 11.3, 12, 12.2; Annex A – paras: 6, 6.1
REASONS FOR DECISION
Senior Member Dr M Evans
11 September 2018
BACKGROUND
Mr Mukesh Kumar is a citizen of India. He first arrived in Australia on 12 August 2009 as the holder of a Student (Temporary)(Class TU) Visa (T1, page 9). As a result of his studies, Mr Kumar obtained a Certificate III in Hotel Management (transcript, page 5).
Mr Kumar applied for an extension of his student visa, which was refused because he did not pass the English requirements. He unsuccessfully sought a review of this decision in the Migration Review Tribunal (transcript, page 6).
Mr Kumar then stayed in Australia on a series of bridging visas (transcript, page 6).
He married the Applicant, who was born in India but is now an Australian citizen, in January 2014 (T2, page 32 and Attachment G, page 89).
On 4 March 2014, Mr Kumar lodged an application for a Partner visa on the basis of his relationship with the Applicant, however this application was refused in December 2014 (T2, Attachment M, pages 127-130). He also unsuccessfully sought review of that decision in the Administrative Appeals Tribunal (the Tribunal), with the date of the Tribunal’s decision being 17 June 2016 (T2, Attachment B, page 56 and transcript, pages 6-7).
Mr Kumar was given 28 days to legally leave the country. He departed Australia on 30 June 2016 to return to India, and has not since returned to Australia (transcript, page 7).
While Mr Kumar was outside of Australia, on 7 July 2016, he lodged an application for a Partner (Provisional)(Class UF) visa (the visa). He was sponsored by his wife, the Applicant (T2, Attachment A, page 42).
Mr Kumar’s “History for Court – Criminal and Traffic” from the Western Australian Police (Criminal and Traffic History) (T3, page 173) shows that he committed the following offences in Western Australia under the Road Traffic Act 1974 (WA) (Road Traffic Act) (see also National Police Certificate at T2, page 57):
Court Court Date Offence Offence date Court result Fremantle Magistrates Court 31 May 2016 No Authority to Drive – suspended; Road Traffic Act 1974; S. 49(1)(a) & (3)(c); 2nd or Subsequent Offence; No M.D.L. 20 November 2015 Fine: $1000. Licence disqualified for 9 months cumulative. Fremantle Magistrates Court 31 May 2016 Careless driving; Road Traffic Act 1974; S 62; No M.D.L. 20 November 2015 Fine $400. Licence disqualified for 3 months; s51 Mandatory - concurrent. Perth Magistrates Court 10 April 2015 No Authority to Drive – Disqualified/Suspended;
Road Traffic Act 1974; S. 49(1)(a) & (3)(c); No M.D.L.
25 February 2015 Fine $400. Licence disqualified for 9 months cumulative. Fremantle Magistrates Court 10 December 2014 Exceed 0.08g alcohol per 100ml of blood; >=0.14g/100ml but <0.15g/100ml; Road Traffic Act 1974; S. 64(1); No M.D.L; Reading 0.147; Method is Breath 17 November 2014 Fine $750. Licence disqualified for 9 months concurrent. Fremantle Magistrates Court 28 August 2013 No Authority to Drive (Fines Suspended); Road Traffic Act 1974; S. 49(1)(a) & (3)(d); Overseas M.D.L. 15 July 2013 Fine $200.
As a result of these offences, Mr Kumar was issued with a Notice of Intention to Consider Refusal under section 501 of the Migration Act 1958 (Cth) (the Migration Act) on 25 July 2017 (T2, Attachment P).
In response, Mr Kumar, through a migration agent, made representations to a delegate of the Respondent that he was of good character, and should he be found not to be, requesting “the use of the discretionary power to still approve his visa on the basis that the crimes are on the lower end of seriousness and not crimes of particular concern that are outlined in Direction No. 65” (T2, pages 137-138).
On 22 January 2018, a delegate of the Minister refused Mr Kumar’s application for the visa under section 501(1) of the Migration Act (T1, page 4-7) (the Reviewable Decision).
On 12 February 2018, the Applicant applied to the Tribunal to review the decision not to grant the visa (T1, page 1-3).
ISSUES
The first issue for determination by the Tribunal is whether Mr Kumar passes the character test pursuant to section 501 of the Migration Act.
Secondly, if the Tribunal finds that Mr Kumar does not pass the character test, the issue then becomes whether the Tribunal should exercise a discretion in favour of granting the visa to Mr Kumar, after having regard to the primary and other considerations in Ministerial Direction no. 65.
JURISDICTION
The jurisdiction of the Tribunal is established by s 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), which states:
(1)An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment; or
(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
In summary, s 25(1) of the AAT Act states that the jurisdiction of the Tribunal is given to it by other “enactments”, which grant the Tribunal jurisdiction to review certain decisions made under those enactments. In this case, the relevant enactment is the Migration Act. Specifically, s 500(1)(b) of the Migration Act provides that:
(1) Applications may be made to the Administrative Appeals Tribunal for review of:
(c)decisions of a delegate of the Minister under section 501…
The Reviewable Decision is a Part 5 Reviewable Decision (s 338(5) of the Migration Act). Therefore an application for review can be made by the Applicant in her capacity as Mr Kumar’s sponsor (under s 347(2)(b) of the Migration Act).
The Reviewable Decision of 22 January 2018 was communicated to Mr Kumar by email, and is therefore taken to have been delivered to him on that day (T1, page 5).
This is not an expedited visa application to which s 500(6B) of the Migration Act, which requires an application for review of a decision to be lodged with the Tribunal within 9 days after the day on which the person was notified of the decision, would apply.
As the Applicant lodged her application for review on 12 February 2018, the application was lodged within the required 28 day period which commenced from the day of notification of the Reviewable Decision (s 29(2) of the AAT Act).
MATERIAL BEFORE THE TRIBUNAL
This application was heard on 6 August 2018.
The Applicant was self-represented, but was assisted in making submissions by her friend, Mr Mark Anderson, who also gave evidence to the Tribunal. The Applicant was accompanied by another friend, Ms Banari Dokhe, who also gave evidence to the Tribunal. Mr Kumar gave evidence by telephone from India, with the assistance of an interpreter who was present in the hearing room.
The Respondent was represented by Mr Arran Gerrard on behalf of the Australian Government Solicitor.
The following material was admitted into evidence at the hearing on 6 August 2018, and has been considered by the Tribunal:
(a)a Police Clearance certificate of Mukesh Kumar, received by the Tribunal on 17 April 2018 (Exhibit A1);
(b)Statement by Mukesh Kumar dated 16 April 2018 (Exhibit A2);
(c)Statement by Juliana Morris dated 16 April 2018 (Exhibit A3);
(d)handwritten Statement by Yolanda Rosario, undated, but received by Tribunal on 17 April 2018 (Exhibit A4);
(e)handwritten Statement by Corinna McDonald, undated but certified as true copy on 2 April 2018 (Exhibit A5);
(f)Statement by Leanne Chaproniere dated 29 March 2018 (Exhibit A6);
(g)Statement by Brett Blades dated 5 April 2018 (Exhibit A7);
(h)Patient Progress note by Mrs Sashil Moreno, Registered Psychologist dated 7 April 2018 (Exhibit A8);
(i)Progress report to GP by Medicare Allied Health Professional from Ms Sashil Moreno, with date of last session stated as 7 April 2018 (Exhibit A9);
(j)letter by Dr Elaine Lee dated 23 February 2018 (Exhibit A10);
(k)letter by Dr Farhana R Khan dated 6 April 2018 (Exhibit A11);
(l)1 page document titled “CT Cervical Spine” by Dr Kit Frazer dated 4 April 2018 (Exhibit A12);
(m)Applicant’s “Lipid Studies” results dated 23 March 2018 (Exhibit A13);
(n)letter to Dr Oladele Ojo from Dr Elaine Lee dated 27 February 2018 (Exhibit A14);
(o)letter to Mr Arnaud Michel from Dr Farhana R Khan dated 16 April 2018 (Exhibit A15);
(p)statement from Mukesh Kumar, undated, but received by Tribunal on 31 July 2018 (Exhibit A16);
(q)statement from Mr Dhiraj, Mukesh Kumar’s father, undated, but received by Tribunal on 31 July 2018 (Exhibit A17);
(r)statement from the Applicant dated 31 July 2018 (Exhibit A18);
(s)statement from Pawandeep Kaur, undated, but received by Tribunal on 31 July 2018 (Exhibit A19);
(t)Reservation details for Bali trip in July 2018 for the Applicant and Mukesh Kumar (Exhibit A20);
(u)Letter from Dr Farhana R Khan dated 30 July 2018 (Exhibit A21);
(v)21 pages of pixilated photographs of the Applicant and Mr Kumar (Exhibit A22);
(w)Section 37 documents, numbered T1 through to T4 (Exhibit R1);
(x)Respondent’s Statement of Facts and Contentions, dated 11 May 2018 (Exhibit R2).
The Tribunal has considered all of the material before it, including the written and oral submissions of the parties, and the oral evidence and arguments presented at the Tribunal hearing. This included the hearing transcript of Mr Kumar’s evidence (transcript). The Tribunal is satisfied that the parties have had an adequate opportunity to be heard, and to present their case and evidence to the Tribunal.
LEGISLATIVE FRAMEWORK
Section 501(1) of the Migration Act provides that:
(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Section 501(6) of the Act provides:
(6) For the purposes of this section, a person does not pass the character test if:…
(d) in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia…
MINISTERIAL DIRECTION 65
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that, “A person or body must comply with a direction under subsection (1).”
On 22 December 2014, the Minister for Immigration and Border Protection made a direction under s 499 of the Migration Act, named “Direction no. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction no. 65).
Application of the character test
Section 2 of Annex A to Direction no. 65 is titled “Application of the character test”. Paragraphs 6 and 6.1 of Annex A are relevant:
6 Risk in regards to future conduct (section 501(6)(d))
(1) A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person would engage in any of the conduct specified in section 501(6)(d) of the Act. The types of conduct specified are discussed below.
(2) The grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or to remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act.
(3) It is not sufficient to find that the person has engaged in conduct specified in paragraph 501(6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act.
6.1 Risk of engaging in criminal conduct in Australia (section 501(6)(d)(i))
(1) A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person will engage in criminal conduct in Australia.
(2) The reference to criminal conduct must be read as requiring that there is a risk of the person engaging in conduct for which a criminal conviction could be recorded.
Preamble to Direction no. 65
Paragraph 6.1 of the Preamble to Direction no. 65 sets out the Objectives of the Migration Act, with paragraphs 6.1(1) and (2) being relevant to the Reviewable Decision currently before the Tribunal:
(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
(2) Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.
Paragraph 6.2 of the Preamble to Direction no. 65 provides general guidance as follows:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen's visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of the Preamble to Direction no. 65 sets out principles which must be taken into account by persons making decisions under s 501, which includes the Tribunal:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.
Primary considerations
Informed by the principles set out in paragraph 6.3 of the Preamble to Direction no. 65, the decision-maker (in this case, the Tribunal) must take into account the primary considerations in Part B of Direction no. 65. Specifically, paragraph 11(1) of Part B of Direction no. 65 provides:
(1)In deciding whether to refuse a non-citizen's visa, the following are primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Expectations of the Australian Community.
Other considerations
Paragraph 12 of Part B of Direction no. 65 lists other considerations as follows:
(1)In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a) International non-refoulement obligations;
b) Impact on family members;
c) Impact on victims;
d) Impact on Australian business interests.
Section A, paragraph 7(1)(a) of Direction no. 65 outlines how a decision-maker is to exercise discretion:
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
(a) must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa…
How to apply the primary and other considerations
Further guidance as to how a decision-maker is to apply the considerations can be found in Section 2, paragraph 8 of Direction no. 65 which provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that noncitizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
DOES MR KUMAR PASS THE CHARACTER TEST?
The Tribunal must first consider whether Mr Kumar passes the character test pursuant to section 501 of the Migration Act.
As noted above, the relevant provision of the Migration Act is s 501(6)(d)(i) which provides that a person does not pass the character test if, in the event of the person being allowed to enter or to remain in Australia, there is a risk that the person would engage in criminal conduct in Australia.
The Respondent submitted in paragraph 14 of Exhibit R2 that: “Having regard to the fact that Mr Kumar committed 5 similar offences within a 3 year period, in our view the respondent contends that there is a risk that Mr Kumar would engage in similar criminal conduct if allowed to enter and remain in Australia.”
In his application for the visa (T2, page 52), in response to the question, “Has any applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records)?” Mr Kumar responded, “No”.
At the hearing, Mr Kumar explained (in his examination in chief, and under cross-examination) that he was not aware that driving convictions were criminal offences; otherwise he would have disclosed them in his online application (transcript, page 2). The Applicant also gave evidence at the hearing that she also did not understand that driving convictions were criminal offences. Further, submissions were made by Mr Anderson that it was not commonly understood by members of the Australian community that traffic convictions were criminal convictions, and therefore Mr Kumar could have been under the same misapprehension.
These submissions warrant further consideration of the meaning of “criminal conduct” in s 501(6)(d)(i) of the Migration Act, in the context of traffic-related offending. That is, if there is a likelihood that Mr Kumar would engage in further traffic related offending, would such offending be “criminal conduct”?
The term “criminal conduct” is not defined in the Migration Act.
The meaning of “criminal conduct” was considered by Deputy President Forgie in QKVH and Minister for Home Affairs [2018] AATA 1855 (QKVH), at paragraphs [11] and [12] as follows:
…I look first to the meaning of “criminal conduct”. Consistently with the statement in cl 6.1(2) of annex A of the Ministerial Direction, the reference to “criminal conduct” in s 501(d)(i) is not limited to conduct which has led to a criminal conviction. It extends to conduct “… for which a criminal conviction could be recorded …”. As the Full Court of the Federal Court said in Minister for Immigration v Baker after considering the various references in the Migration Act to “criminal convictions” and to “past criminal conduct” and the like, the reference to “criminal conduct”:
“… is not concerned with whether the conduct has had some temporal result, such as the incurring of a conviction, but with the light that the conduct throws on the actor's character. Of course, in the absence of a prosecution and conviction, satisfaction that criminal conduct has occurred will not be attained on slight material: see the interesting note by B Robertson, 'Criminal Allegations in Civil Cases' (1991) 107 LQR 194.”
12. In other words, it may be that the conduct led to a court's finding the conduct proved when a person was charged with an offence but doing so without conviction. That conduct would be “criminal conduct”. It may be that the person has engaged in conduct, for which he or she could have been charged with an offence and, if the charge were proved, convicted of a criminal offence but never was. If the Tribunal is satisfied that this conduct occurred, that conduct could be regarded as “criminal conduct”.
Senior Member Britten-Jones stated in Molloy and Minister for Immigration and Border Protection [2017] AATA 2712 (Molloy) at [28]-[30]:
28. The second limb of the character test relied upon by the respondent requires an analysis as to whether if the applicant remained in Australia there is a risk that he would engage in criminal conduct as set out in subsection 501(6)(d)(i).
29. Adopting a contextual and purposive approach to the interpretation of this provision I consider that the criminal conduct referred to in subsection 501(6)(d)(i) must carry the common meaning of the more serious offences than misdemeanours that involve lesser faults and omissions such as traffic offences.
30. There is no evidence that would suggest a risk of the applicant engaging in any criminal conduct of a more serious nature than that for which he was convicted, namely drink driving and drug possession. As previously stated, these offences were at the lower end of the spectrum and therefor (sic) it is not established that there is a risk that the applicant would engage in any criminal conduct in the middle to upper range of the spectrum of seriousness for criminal conduct.
In Molloy, the Applicant’s traffic offences included the following (at [8]):
Offence Court result Not stop at stop sign Convicted. Fined $100. Drive unregistered motor vehicle. Drive uninsured motor vehicle On both charges. Convicted. Fined $700 Drive a motor vehicle while unlicensed Convicted. Fined $100 Drive medium range blood alcohol content Convicted. Fined $300. Licence disqualified for six months.
Further, in Molloy, the Applicant had also been convicted of the following (non-traffic-related) offences (at [11]):
Offence Court result Possess dangerous drug – trafficable quantity Convicted. Fined $500. Breach of bail granted Convicted. Fined $150 Supply Schedule 2 substance Convicted. Fined $500
Senior Member Britten-Jones made a similar statement in a transcript of an oral decision in Furlong and Minister for Immigration and Border Protection [2017] AATA 3014 (Furlong) at [46]-[48]:
46. The second limb of the character relied upon by the respondent requires an analysis as to whether, if the applicant remained in Australia there is a risk that he would engage in criminal conduct as set out in subsection 501(6)(d)(i).
47. Adopting a contextual and purposive approach to the interpretation of this provision I consider that the criminal conduct referred to in subsection 501(6)(d)(i) must carry the common meaning of the more serious offences than misdemeanours that involve lesser faults and omissions such as traffic offences. There is no evidence that would suggest a risk of the applicant engaging in any criminal conduct of a more serious nature other than that to which he was convicted.
48. As previously stated, these offences were at the lower end of the spectrum and therefore I consider that it is not established that there is a risk that the applicant would engage in any criminal conduct in the middle to upper range of the spectrum of seriousness for criminal conduct.
In Furlong, the Applicant’s offences arose from 4 separate incidents:
(a)disorderly conduct, for which he was convicted and fined;
(b)driving whilst using a hand-held phone and driving whilst unlicensed, for which he was again convicted and fined;
(c)assault and failing to leave licensed premises, arising from a “bar brawl”. The Tribunal did not detail the penalty;
(d)driving whilst under the influence of alcohol, driving in a manner dangerous to the public, and failing to stop and assist after a crash. The Applicant received a sentence of 3 months imprisonment, of which he served one month.
These statements from Senior Member Britten-Jones in Molloy and Furlong, can be contrasted with the following statement from Senior Member Stefaniak in Irani and Minister for Immigration and Border Protection [2017] AATA 3051 (Irani) at [33]-[40], which also describes the offences and penalties relevant to the Applicant in that case:
33. The National Police Certificate indicates that the applicant’s first brush with the criminal law, in terms of a court appearance, was at the Liverpool Local Court of 14 October 2010, where, for driving with a low range prescribed alcohol concentration (PCA) he was fined $250 and was disqualified from driving for three months. On that occasion the applicant had been at a buck’s night. His friend (the “buck”) had been picked up for drink driving. The applicant drove his friend’s car to the police station. At the station, the applicant was required to take a breathalyser which he duly failed.
…
35. The applicant’s next offence resulted in him being convicted at the Fairfield Local Court on 10 January 2011. The applicant was convicted for providing a false name and address. He was fined $800. He was also convicted for driving while disqualified from holding a licence. As a result of driving while disqualified from holding a licence he was released upon entering into a two year good behaviour bond, fined $1000, and his licence was disqualified for two years, commencing on 14 January 2011. It appeared on that occasion he had produced an Indian licence and had, for what was probably in reality a short period of time, but with some consistency lied to the police.
36. On 19 September 2012, he was again convicted of two counts of driving while disqualified. He received a community service order of 100 hours. His licence again was disqualified for the statutory period of two years.
37. On 4 March 2015, he was convicted of exceeding the speed limit. He was travelling at about 101 kilometres in an 80 zone. It appeared that was in an area where there was a change of speed limit from 100 to 80kph. He was fined $250. On the same date he was also convicted of driving a motor vehicle while disqualified. He received a community service order of 200 hours for this offence and was again disqualified from driving for two years.
38. On 17 February 2016, he was convicted of driving a motor vehicle during a disqualification period. The court sentenced him to a term of imprisonment of 10 months commencing on 17 February 2016 and concluding on 16 December 2016, wholly suspended upon him entering a bond to be of good behaviour for 10 months.
39. So, whilst there is not a progression in the terms of the seriousness of offences, there is a progression in terms of the seriousness of penalties, because he had persisted on four separate occasions, driving a motor vehicle whilst he was disqualified from doing so. As well as that, he has his speed and his low range PCA conviction. Apart from exceeding the speed limit these are all are serious offences under the transport rules applicable to New South Wales and Australia.
40. There was some issue raised at the start of the hearing as to whether, in fact, these were criminal offences or not. Both counsel conceded that they are classified (given that they are serious traffic matters) as criminal offences. The reason for that is that they are dealt with in the Magistrates Court, and have penalties of imprisonment attached to them. Therefore, they are classed as criminal offences, and have been regarded as such, by law, in Australia for many decades.
When comparing Mr Kumar’s offences to those of the Applicants in Molloy, Furlong and Irani, the offences for which Mr Kumar was convicted can be categorised as, to use the wording of Senior Member Britten-Jones in Furlong, “misdemeanours that involve lesser faults and omissions” and “at the lower end of the spectrum” (at [47]-[48]). That is because, although Mr Kumar appeared in the Magistrates Court for these offences, he received fines and driving disqualifications of between 3 and 9 months. This can be contrasted with the traffic offences in Irani which were more serious in nature, as reflected in the terms of imprisonment given to the Applicant, community service orders and longer periods of disqualification (2 years). As such, this Tribunal would not categorise the offences of Mr Kumar as “criminal offences” or “criminal conduct”, but rather “traffic offences” in the nature of “misdemeanours”.
This brings the Tribunal to the question of whether “there is a risk that… [Mr Kumar] would engage in criminal conduct in Australia…”
However, before examining this question, the Tribunal would like to note that it in no way intends to trivialise driving-related offences. The Tribunal notes the following comment from Deputy President Kendall, as he then was, in Zaya and Minister for Immigration and Border Protection [2017] AATA 366 at [54], referred to by the Respondent in Exhibit R2, at paragraph [24]. This statement was made in the context of a decision to refuse citizenship:
There is an unfortunate tendency socially to dismiss laws that penalise drivers who drive under the influence as unnecessary or unfair. This arguably results from a view in some circles that driving while under the influence is less serious than other offences. This is not a view that is shared by persons who lose their loved ones to drivers who drive when they clearly should not do so or indeed to persons who lose loved ones who themselves died because they drove while intoxicated. The Tribunal takes these offences quite seriously because the consequences of not adhering to safe driving laws are themselves quite serious.
The Tribunal is also in agreement with the following statement from Senior Member Poljak in Kohli and Minister for Immigration and Border Protection [2017] AATA 1326 at [20], which the Respondent also refers to in paragraph [25] of Exhibit R2:
The laws against driving under the influence of alcohol are specifically designed to protect members of the Australian community from serious physical harm and/or death. The applicant’s offences of driving under the influence of alcohol are serious and show reckless indifference to the safety of the wider community.
The Tribunal now returns to the question of whether there is a risk that Mr Kumar would engage in “criminal conduct” if he were permitted to return to Australia. Paragraph 6.1(2) of section 2 of Annex A to Direction no. 65 (noted above), is of some assistance at this point. It provides: “The reference to criminal conduct must be read as requiring that there is a risk of the person engaging in conduct for which a criminal conviction could be recorded.”
In QKVH, Deputy President Forgie discussed the meaning of “risk” in the context of “risk of the person engaging in conduct for which a criminal conviction could be recorded”. Deputy President Forgie stated, at [13]-[14]:
13. The word “risk” is not defined but its ordinary meanings when used as a noun, as it is in s 501(6)(d)(i), include the following which is relevant:
“... 1 the chance or possibility of suffering loss, injury, damage, etc; ...” [Chambers 21st Century Dictionary, 1999, reprinted 2004]
Therefore, having regard only to the ordinary meaning of the word “risk”, the issue under s 501(6)(d)(i) becomes whether there is a chance or possibility of QKVH’s engaging in criminal conduct in Australia. The word “risk” must, however, be interpreted in its context and that is the context of the Migration Act and so in the context of who may, and may not, come to and/or remain in Australia. In that context, the word “risk” cannot be seen to mean simply a “chance or possibility” of a person’s engaging in criminal conduct in Australia for to do so would not take account of the realities of everyday life. Take, for example, members of the Australian community who drive a motor vehicle. Even if they have never done so before, there is a chance or possibility that any one of them may have a lapse in concentration or judgment and commit an offence against the road laws of a type for which a conviction may be imposed. That chance or possibility will, of course, be greater if the person has a history of traffic offences so that the risk of his or her doing so increases. Section 501(6)(d)(i) is not directed to the risk that a person will engage in criminal conduct if allowed to remain in Australia at what might be thought to be a theoretical level. It is directed to an assessment of risk at a level which is, as Direction No. 65 says, “... is more than a minimal or remote chance ...” of engaging in conduct which is, in this instance, criminal conduct. It cannot be set at a greater level than that for the word “risk” is not qualified by any adjective such as “significant”, “substantial”, “real”, any of which might have done so.
14. There is no question that QKVH has engaged in criminal conduct in the past but I am required to assess the risk of his doing so if permitted to remain in Australia in the future. His past conduct does, however, inform the future as do his actions and behaviour since his last offending…
Mr Kumar was convicted of five driving offences within a three year period, with the last offence being committed approximately one month before he left Australia. This past conduct does indicate an increased likelihood, and therefore risk that he may commit further driving-related offences in the future. Although Mr Kumar is remorseful and has promised not to offend again, there is no evidence of any counselling, education or rehabilitation to reduce the likelihood of his reoffending (transcript, pages 11, 12 and 17). Additionally, his Criminal and Traffic History (T3, page 173) shows an escalation in the seriousness of his traffic-related offending. Should he offend again, it may be regarded by the Magistrates Court as more serious offending, which would amount to “criminal conduct”. For example, a subsequent offence of driving whilst disqualified under s 49(1)(a) and (3)(c) of the Road Traffic Act has the penalty of a term of imprisonment for not more than 18 months.
The Tribunal finds that there is more than a minimal or remote chance that Mr Kumar may engage in criminal conduct if he were allowed to enter and or remain in Australia. He therefore does not pass the character test due to the operation of s 501(6)(d)(i) of the Migration Act.
PRIMARY CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct
Part B, paragraph 11.1(1) of Direction no. 65 provides that when decision-makers are considering the protection of the Australia community they:
… should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision makers should also give consideration to:
a) The nature and seriousness of the non-citizen's conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the non-citizen's conduct
Part B, paragraph 11.1.1 of Direction no. 65 further provides:
11.1.1 The nature and seriousness of the conduct
(1)In considering the nature and seriousness of the non-citizen's criminal offending or other serious conduct to date, decision-makers must have regard to:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;
b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
c)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
d)The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;
e) The sentence imposed by the courts for a crime or crimes;
f)The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;
g) The cumulative effect of repeated offending;
h)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
i)Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
In considering the nature and seriousness of Mr Kumar’s offending, the Tribunal notes that he has not committed any violent or sexual crimes, nor has he committed crimes against vulnerable members of the community.
As the Tribunal has discussed above, Mr Kumar’s traffic offences were at the less serious end of the spectrum of offending, and could not be regarded as constituting criminal offences, but rather traffic offences. Mr Kumar did not receive terms of imprisonment for his offending, rather, he received fines and disqualifications, indicating that the sentencing Magistrate regarded the offending as being less serious.
However, as stated above, the Tribunal by no means intends to downplay the serious consequences that can result from traffic-related offending. The Tribunal agrees with the following statement from Member Webb in Apire and Minister for Immigration and Border Protection [2014] AATA 193 at [16]:
Even though each offence is not properly classed as a ‘serious offence’ under 10.5.2 of the Instructions, rather meeting the description of a ‘minor offence’, to my mind driving a motor vehicle without a license while under the influence of alcohol is a serious matter that should not be trivialised or passed off too lightly. In this regard, I respectfully agree with what the Tribunal said in re Wang and Minister for Immigration and Border Protection at [7] — laws to protect users of the road go to the essential safety of the community. Behaviour of this kind is not consistent with Australian community values…
Indeed, Mr Kumar’s most recent offence of careless driving, which he committed on 20 November 2015, whilst his license was suspended for the second time, resulted in a serious accident in which Mr Kumar broke both his legs. His passenger, a work colleague, received minor injuries and, according to Mr Kumar in his evidence at the hearing, was discharged from hospital on the same day. Very fortunately, no one else was seriously hurt or killed (transcript, page 16-17), however, the outcome could have been quite different.
With respect to Mr Kumar’s first traffic-related offence in 2013 of “No Authority to Drive (Fines Suspended)”, Mr Kumar gave evidence that he was not aware that he had lost his licence due to speeding fines (transcript, page 20).
The Tribunal heard further evidence that Mr Kumar thought he had received a disqualification for 6 months (rather than 9 months) in the Magistrates Court on 10 December 2014, as a result of the “Exceed 0.08g alcohol per 100ml of blood” offence committed on 17 November 2014. The Tribunal does not accept this explanation because the subsequent offence of driving whilst suspended was committed on 25 February 2015, approximately 2 and a half months later. It is therefore likely that Mr Kumar knew that he was driving whilst suspended.
Mr Kumar also gave evidence that on the day of the accident, he had “no choice” but to drive because previously, his company had provided him with a driver, but on that occasion he was with a new colleague, who could not drive (transcript, page 17). When asked by the Tribunal as to why he could not have caught public transport to work, given that his work was at a shopping centre, Mr Kumar replied that the cleaning equipment he needed was in the work van and therefore it was not possible to take public transport (transcript, page 17). Mr Kumar also gave evidence that he needed money for surgery for his father and he had to work, and therefore drove to work even though he knew his license had been suspended (transcript, page 11). This evidence is of concern to the Tribunal, because even if the Tribunal accepted that Mr Kumar did not know his licence had been suspended when he committed the first driving offence, with his subsequent offences, Mr Kumar appeared to have made a deliberate decision to drive, despite knowing that his license had been disqualified (transcript, page 11). This shows a deliberate disregard for the law and a lack of concern for the safety of other road users.
Whether Mr Kumar gave false or misleading information to the Respondent when he made his visa application, including not disclosing prior criminal offending, was discussed earlier in these reasons for decision. The Tribunal is willing to accept the evidence of Mr Kumar that he did not realise that his traffic offences were criminal offences. Indeed, the analysis of the Tribunal above concluded that they were more in the nature of traffic offences, not criminal offences.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Part B, paragraph 11.1.2 of Direction no. 65 provides:
11.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable.
(2) In addition, decision-makers should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(3) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
1. information and evidence from independent and authoritative sources on the likelihood of the non-citizen re-offending; and
11. evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and
111. the duration of the intended stay in Australia.
(4) Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.
At the hearing, Mr Kumar has asked the Tribunal for “another chance”, and if it “happens again, to deport him” (transcript, page 11). This is of concern because, as noted earlier in these reasons for decision, if Mr Kumar commits further traffic offences in Australia, it could result in serious harm to members of the Australian community, including serious injury and loss of life.
With respect to the likelihood of Mr Kumar engaging in further serious conduct, which may then be considered “criminal or other serious conduct”, the Tribunal has taken into account various submissions from the Applicant, and other witnesses, both at the hearing, and in writing, in support of Mr Kumar. These include the oral evidence of the Applicant, together with written statements from the Applicant (A3 and A18); the written statement of Mr Kumar’s former co-worker (Exhibit A7); statements made at the hearing by Ms Dokhe, as well as in writing (T2, pages 114-115); statements made at the hearing by Mr Anderson; and written statements from Mr Kumar (A2 andA16), and Mr Kumar’s father (A17). The Tribunal also notes Mr Kumar’s police clearance certificate from India which states that as at 24 March 2018, he has “nothing adverse against him in the police record” (Exhibit A1). The Tribunal notes Mr Kumar’s assertions in his evidence at the hearing, that he is currently undertaking volunteer social work for his temple and local community in India (transcript, page 12).
The Tribunal has also taken into account the evidence of Mr Kumar at the hearing where he expressed remorse for his offending, stated that there would not be a repeat of it, and asked to be given another opportunity to return to Australia to be with his wife. Mr Kumar also expressed a desire that he should not be issued with a driver’s licence if he were to return to Australia and that he could use public transport (transcript, page 11). However, based on Mr Kumar’s past conduct, the Tribunal cannot be satisfied that this will deter him from driving, and indeed, Mr Kumar has knowingly driven at least twice whilst disqualified.
There is, however, no evidence from independent and authoritative sources as to the likelihood of Mr Kumar re-offending, such as evidence from a psychologist or counsellor, and no evidence of any rehabilitation. Mr Kumar gave evidence at the hearing that he is being treated by his general practitioner in India for his physical and mental health, and that the doctor is providing him with assurances that he will be able to see his wife (transcript page 14). However, he has not undertaken any counselling or programs to address his offending behaviour, namely in the areas of driving and alcohol (transcript, page 17). Indeed, Mr Kumar claimed that although he had discussed his driving under the influence of alcohol conviction with his general practitioner, he did not think he needed treatment because he “made a mistake once”. The Tribunal is also concerned by the inadequate explanation given by Mr Kumar that a friend “made him drink” and that he “made a mistake” in deciding to drive instead of getting a lift with a friend, or an Uber (transcript, page 15).
Additionally, as Mr Kumar departed Australia one month after his most recent convictions, there has not been sufficient time to properly ascertain whether his offending is, as the Respondent has submitted in Exhibit R2, paragraph [30], an “aberration” or whether there remains a likelihood that he will engage in criminal or other serious conduct and thus pose a risk to the Australian community.
The best interests of minor children in Australia
The Applicant and Mr Kumar do not have children, and consequently there are no interests of minor children to consider in this matter.
Expectations of the Australian Community
Paragraph 11.3 of Direction no. 65 provides:
11.3 Expectations of the Australian Community
(1) 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.
In Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36] Deputy President Block explained:
…the expectations of the Australian community should be taken to be the expectations of the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.
Further, in Do and Minister for Immigration and Border Protection [2016] AATA 390 at [22]-[23], Deputy President McCabe stated:
22. The Direction says the Australian community expects non-citizens to obey the law. It goes on to say the nature of the offending behaviour might be such that the community would not expect the decision-maker to revoke the cancellation.
23. A decision-maker is, to some extent, required to guess at the community’s expectations. The Direction does not refer to studies or other evidence which would enable me to formulate a precise view of public attitudes and values. I must form my view having regard to contents of the Direction (which is, after all, a statement prepared by the community’s elected representatives), the sentencing remarks of the court and common sense. As I begin my deliberations, I assume the Australian community would be fair-minded and mature. Modern Australia was founded by convicts and their gaolers, after all: we are a nation built on second chances. The community would certainly not be vengeful. The applicant has already been punished for his offence, and the community would not want to see visa cancellation misused to inflict further punishment. I would also expect the community to be conscious of the length of time the applicant has lived in Australia and other circumstances which might assist the community to form a proper judgment about the individual and what should be done.
Whilst the Australian community values giving a person a “fair go”, the community would undoubtedly be concerned that five similar offences have been committed by Mr Kumar between 2013 and 2016, and that there may be a risk of re-offending, resulting in potentially serious consequences for other road users, including risk of loss of life and serious injury. The Tribunal is of the opinion that the Australian community would be comforted if Mr Kumar was able to demonstrate better insight into his offending, other than offering assurances that he will not repeat the conduct in the future. In the Tribunal’s opinion, Mr Kumar’s explanation that he had to drive to get to work, and that he drove whilst under the influence of alcohol because a friend “made him drink” at a party, would not be acceptable to the Australian community, and would raise serious concerns about the likelihood of re-offending.
OTHER CONSIDERATIONS
Paragraph 12 of Direction no. 65 provides:
(1) In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a) International non-refoulement obligations;
b) Impact on family members;
c) Impact on victims;
d) Impact on Australian business interests.
In this matter, there are no claims with respect to international non-refoulement obligations, and none arise on the evidence before the Tribunal. There is also no evidence before the Tribunal with respect to any impact on victims, nor is there evidence of any impact on Australian business interests.
Paragraph 12.2(1) of Direction no. 65 provides that the Tribunal must take into account the impact on family members. It refers to the:
Impact of visa refusal on immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely;
The Tribunal has substantial evidence before it as to the adverse impact of the decision to refuse Mr Kumar’s partner visa on his wife, the Applicant, an Australian citizen who has now been apart from her husband for approximately 2 years. Indeed, the Respondent concedes that the visa refusal will have an adverse impact on the Applicant (Exhibit R2, paragraph [43]).
The medical evidence before the Tribunal shows that the Applicant has been suffering from anxiety and severe depression (Exhibit A8, Exhibit A9, Exhibit A10, Exhibit A11, Exhibit A14, T2, page 131-132, T2, page 154, Exhibit A21), as well as other physical health issues (Exhibit A13, A15) including carpal tunnel syndrome which she requires surgery for (T2, page 154), which make it difficult for her to work. She has also experienced several incidents that have made her fearful for her safety (Exhibit A18, T2, page 98-109), and the presence of her husband would undoubtedly relieve some of this fear.
The Applicant gave evidence at the hearing that she relied upon her husband heavily for emotional support, as well as financial support and has been struggling financially without him. The Tribunal also has before it, several written testimonials from the Applicant’s friends in which they describe how much the Applicant is struggling to cope without her husband (Exhibit A4, Exhibit A5, Exhibit A19), as well as a statement from the Applicant’s employer (Exhibit A6).
As noted above, the Applicant and Mr Kumar have been apart for approximately 2 years. They were able to be reunited briefly in July 2018, when they both travelled to Bali (Exhibit A20), however, they both gave evidence at the hearing that they were both struggling financially and could not afford to travel to see each other. The Applicant works as a cleaner and Mr Kumar is staying with his father and brother who are farmers in India, where he assists on the farm. He gave evidence that the household makes the equivalent of $2-4 Australian dollars per day from these farming activities (transcript, page 23). The Applicant was also born in India, and her family is there, as well as Mr Kumar’s family, who hold the Applicant in high regard. The Applicant does not have any family in Australia, and it is possible that she could return to live with Mr Kumar in India (transcript, pages 12 and 13).
Based on the evidence discussed above, the Tribunal is of the opinion that the detrimental impact on the Applicant of Mr Kumar’s visa being refused, weighs in favour of the Tribunal exercising its discretion in favour of granting the visa to Mr Kumar.
CONCLUSION
Mr Kumar does not pass the character test under section 501 of the Migration Act.
In relation to the primary considerations that the Tribunal must take into account under Direction no. 65, the findings that the Tribunal has made regarding the protection of the Australian community, weigh in favour of the Tribunal affirming the reviewable decision.
The other consideration of the impact on family members, namely the Applicant, weighs in favour of Tribunal exercising its discretion in favour of granting the visa to Mr Kumar.
Primary considerations should generally be given greater weight than the other considerations (paragraph 8(4) of Direction no. 65), and consequently the Tribunal is of the view that the primary considerations which weigh in favour of the delegate’s decision being affirmed, outweigh the other consideration of the impact on family members.
The Tribunal has a great deal of sympathy for the Applicant and Mr Kumar, and understands that they are both suffering as a result of the decision to deny Mr Kumar the visa. However, the Tribunal must apply the law and interpret the evidence before it to reach the correct and preferable decision, which in this instance, is not in favour of the Applicant and Mr Kumar.
A decision regarding the character test is not final, and the Applicant and Mr Kumar may make a further application for a Partner visa in the future. With sufficient time and evidence of rehabilitation and/or other evidence which, for example, mitigates the likelihood that Mr Kumar will engage in criminal or other serious conduct which poses a risk to the Australian community, Mr Kumar may indeed be able to establish his good character and obtain a Partner visa.
DECISION
For the reasons outlined above, the Reviewable Decision is affirmed.
I certify that the preceding 96 (ninety-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans
.....................[sgd].................................
Administrative Assistant Legal
Dated: 11 September 2018
Date of hearing: 6 August 2018 Applicant: Self-Represented Counsel for the Respondent: Mr Arran Gerrard
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Statutory Construction
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