Nigam and Minister for Immigration and Border Protection (Migration)
[2016] AATA 613
•18 August 2016
Nigam and Minister for Immigration and Border Protection (Migration) [2016] AATA 613 (18 August 2016)
Division
GENERAL DIVISION
File Number(s)
2016/2826
Re
Anish Nigam
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Senior Member A Poljak
Date 18 August 2016 Place Sydney The decision under review is affirmed.
...............................[sgd].........................................
Senior Member A Poljak
CATCHWORDS
IMMIGRATION & CITIZENSHIP – application for visa refused – Partner (Temporary) (Class UK) visa – character test – substantial criminal record – Direction 65 – protection of the Australian community – seriousness and nature of the relevant conduct – the risk conduct may be repeated – best interests of minor children in Australia – expectations of Australian community – decision affirmed
LEGISLATION
Migration Act 1958 ss 499, 500, 501
CASES
Re Zhang v Minister for Immigration and Border Protection [2014] AATA 136
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
Senior Member A Poljak
18 August 2016
INTRODUCTION
The applicant, Mr Nigam, was born in India in January 1976 and is currently 40 years of age. He is an Indian citizen.
Mr Nigam first arrived in Australia on 11 September 1996 on a Subclass 560 Student visa which allowed him to lawfully stay in the country until 20 November 2000. Following the cessation of this visa, Mr Nigam remained in Australia as an unlawful non-citizen until 2 August 2004. In total, Mr Nigam has been present in Australia, from his first arrival to the present time, for a period of approximately 19 years and 9 months.
In early 2002, Mr Nigam met ‘Katie’, now known as Ms Baily. They struck up a relationship and moved in together in January 2003. Ms Baily is an Australian citizen.
On 2 August 2004, Mr Nigam lodged an application for a Partner (Temporary) (Class UK) visa, sponsored by his then de facto partner, Ms Baily (“the visa application”). Mr Nigam was granted a Bridging E (Class WE) visa until the determination of his visa application.
In July 2005, Ms Baily gave birth to Mr Nigam’s daughter in Royal Prince Alfred Hospital, Camperdown. She is now 11 years old. Ms Baily is her daughter’s primary carer and maintains full parental custody.
On 7 May 2007, Mr Nigam was convicted of aggravated robbery, robbery in company, aggravated break and enter and engage in money laundering (“the offences”). He entered a plea of guilty to all charges. On 15 February 2008, he was sentenced to ten years and six months in prison with a non-parole period of seven years and six months.
Mr Nigam was released on parole on 31 March 2013 and resided in the community. His parole ended on 31 March 2016.
On 3 May 2016, the delegate of the Minister for Immigration and Border Protection (“the Minister”), refused to the grant Mr Nigam a Partner (Temporary) (Class UK) visa (“the visa”) on the grounds that the he did not satisfy the character test pursuant to section 501(1) of the Migration Act 1958 (Cth) (“the Act”) (“the decision”). This is the decision under review in these proceedings and the application for review is made in accordance with s 500 of the Act.
Mr Nigam has been in immigration detention since 27 May 2016.
The issue before the Tribunal is whether the discretion in s 501(1) of the Act should be exercised to refuse to grant Mr Nigam a visa.
RELEVANT LEGISLATIVE PROVISIONS
Section 501(1) of the Act provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that they pass the “character test”.
Subsection 501(6) defines the character test. Relevantly, a person does not pass the character test if the person has a “substantial criminal record” as defined by subsection 501(7).
Subsection 501(7)(c) provides that for the purposes of the character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
It is to be noted that the section refers to the sentencing to, and not the serving of, a term of imprisonment.
The power of the Tribunal to review the decision to refuse Mr Nigam’s visa is provided by Section 500. Under subsection 499(1) the Minister has given written directions as to the exercise of the power to review the decision. Subsection 499(2A) provides that these directions must be complied with. The relevant direction is Direction No.65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA which commenced on 23 December 2014 (“the Direction”).
CHARACTER TEST
Mr Nigam was sentenced to ten and half years in prison with a non-parole period of seven and a half years. He has a “substantial criminal record” in accordance with subsection 501(7) of the Act. As a result, in accordance with subsection 501(6) he does not pass the character test. This is conceded by Mr Nigam.
I must therefore consider whether the Tribunal should exercise the discretion to refuse his visa given the specific circumstances of the case.
DIRECTION NO. 65
Paragraph 7 of the Direction sets out how the discretion is to be exercised. “Informed by” the principles in paragraph 6.3, I must “take into account” the considerations in Part B where relevant, in order to determine whether Mr Nigam will forfeit the privilege of being granted a visa. In so doing I am required to determine whether the risk of future harm by Mr Nigam is unacceptable.
Under the heading General Guidance (paragraph 6.2), the Direction provides in part:
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.
In paragraph 6.3 the Minister sets out the principles that provide the framework within which the task of exercising the discretion to cancel a visa should be approached. These principles are:
(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 or 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 the visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether a non-citizen’s visa should be cancelled, or their visa application refused.
The Direction requires the decision-maker to take into account the primary and other considerations relevant to the individual case. Primary considerations should generally be given greater weight than the other considerations, and one or more primary considerations may outweigh other primary considerations. In regards to visa refusals, paragraph 8(1) of Direction provides that a “visa applicant should have no expectation that a visa application will be approved.”
Part B, paragraph 11(1) provides:
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.
PRIMARY CONSIDERATION (A) – PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
In determining this primary consideration, I note that I must have regard to matters set out in paragraph 11.1, namely:
When considering protection of the Australian community, decision makers 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.
(a) The nature and seriousness of the Applicant's conduct to date
The nature and seriousness of the Mr Nigam’s conduct are relevant considerations when assessing the risk to the Australian community. Paragraph 11(1)(a) of the Direction provides that offences involving violence are viewed seriously. Mr Nigam in the present case has been found guilty of violent offences, including aggravated robbery and aggravated break and enter.
Mr Nigam’s conduct to date is to be viewed as very serious.
The sentencing remarks summarise a statement of agreed facts concerning the circumstances of the offences. Briefly:
Offences committed in May 2004
(a)On 24 May 2004, Mr Nigam and his co-offenders were involved in the robbery of the proprietor of a grocery store. The offenders broke into the home of the victim where he was physically restrained and threatened with violence. The statement of agreed facts noted that the role of Mr Nigam was to “wait outside the premises and keep a ‘lookout’. The offenders stole keys to the victim’s business premises and two watches. The victim was restrained while one or more of the offenders travelled to and stole cash from his business. Mr Nigam was the driver of the vehicle used to break and enter the victim’s business.
(b)On 25 and 27 May 2004, Mr Nigam engaged in conduct amounting to money laundering, namely the electronic transfer of money which was the proceeds of crime and the purchase of a motor vehicle with the proceeds of crime.
Offence committed on 10 January 2005
(c)On 10 January 2005, Mr Nigam and two co-offenders were involved in aggravated robbery. The victim was a joint owner of a fruit store. He was attacked by the offenders as he approached his motor vehicle. He was punched numerous times in the head, restrained with cable ties and then forced into the back seat of his vehicle, which was then driven away by one of the co-offenders. The victim was physically assaulted and restrained again as he tried to escape. The victim was then punched in the head numerous times until he surrendered the keys to his store. The statement of agreed facts went on the say, “the victim was told “I know where you live, I’ll get your family.” The statement of agreed facts also noted that during the robbery, Mr Nigam’s role was to “wait nearby where he acted as a ‘lookout’ for police. He was in a position to assist his co-offenders if required.”
Seriousness
Mr Nigam contends, through his legal representatives, that since he was not directly involved in the violent aspects of the crimes of which he was convicted, the object seriousness of his offending is less. I disagree.
The seriousness of Mr Nigam’s conduct is reinforced by the sentence imposed. As conceded by Mr Nigam, the seriousness of the offences committed was reflected in the lengthy prison term imposed.
The Court’s sentencing remarks confirm the serious nature of Mr Nigam’s offending. In respect of the offences in May 2004, the Sentencing Judge remarked:
“I am of the view that the objective gravity of the offence is high…
The victim would have been terrified and disempowered by the actions of the perpetrators. The threats were designed to create extreme fear in the victim, a fear for his life and a real concern for the safety of his father. The threats were accompanied by considerable aggression towards the victim. The attack upon the victim was cowardly. The emotional harm upon the victim is likely to be substantial.
It is clear the offences were well planned. The carrying out of the offences involved a number of persons undertaking varies roles to ensure the obtaining of security information and access keys from the victim by threat. The perpetrators planned the offences around information obtained by those employed by the victim and, possibly, from information they may have gained as employees. The amount of money taken was significant.” (emphasis added)
Similar comments were made in regards to the offence committed in January 2005. Of note is that both victims of the crimes were successful business men and both were former employers of Mr Nigam.
Significantly, as for Mr Nigam’s role in the crimes, the Sentencing Judge remarked:
“I am of the view, however, that in the circumstances here, the offender was involved in a joint criminal enterprise and that his role here was fundamental to the carrying of the offence into effect.
There are a number of features of the present case which make the offending here more objectively serious.
Significantly, the offence was planned and a significant amount of money was taken. It could not be said that the offender played a minor role, because he did not ultimately enter the premises to remove the money. His role, even if the role could be described as a ‘lookout’ was crucial to the success of the taking of the money…This was a joint criminal enterprise to carry the offence into effect.” (emphasis added)
Behaviour while incarcerated
Mr Nigam’s legal representative contends that Mr Nigam was a model prisoner. This is supported by the evidence of Mr Haynes, a special minister in the Catholic Church and prison officer at Grafton Correctional Centre. He states in his statutory declaration, signed 22 June 2016, that Mr Nigam was “known to all the guards as a model prisoner and got on well with everyone” and “was considered one of the best behaved inmates at the prison.”
Mr Nigam incurred three internal misconduct charges during his time in incarceration, namely:
(a)On 25 October 2012, Mr Nigam failed to comply with Correctional Centre Routine;
(b)On 10 February 2009, Mr Nigam was charged with giving false/misleading information; and
(c)On 23 October 2007, Mr Nigam was charged with damage/destroy property.
I accept that Mr Nigam’s record of misconduct in incarceration is minimal. What is troubling is that at hearing, he attempted to minimise his responsibility and involvement in the most recent charge by claiming that it was a ‘misunderstanding’. He failed to inform the Tribunal, on his own volition, that he verbally abused a prison officer when he was questioned about disobeying a direction. He instead sought to place blame on others.
Parole period- 31 March 2013 to 31 March 2016
There is no evidence before me of any issues with Mr Nigam’s conduct or behaviour during his parole period.
Period of non-parole- 31 March 2016 to 27 May 2016
There is no evidence before me of any issues with Mr Nigam’s conduct or behaviour during his non- parole period
Immigration Detention
It is Mr Nigam’s evidence, and I accept, that he voluntarily surrendered himself to the Department on 27 May 2016 knowing that he would be detained in immigration detention.
(b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The nature of the harm to the Australian community should Mr Nigam engage in further criminal and/or serious conduct of the nature of that in which he has engaged in the past, would be serious, and perhaps extremely serious. A repetition of the offences involving violence would certainly involve a degree of physical harm to the victims and could result in very serious harm and possibly death.
A repetition of the offence relating to robbery would cause feelings of insecurity in the communities in which offences were committed. Those subjected to such offences would feel the violation associated with home invasion.
At hearing, Mr Nigam told the Tribunal that at the time he committed the offences he did not fully understand the law. He believed that since he didn’t personally commit the violent acts, he would not go to prison.
In the pre-sentencing report dated 20 June 2007, Mr Nigam cited financial stressors and debts incurred as a result of gambling as significant factors in his participation in the offences. While incarcerated, Mr Nigam completed rehabilitation courses for gambling and alcohol related issues. Between 31 March 2013 and October 2013 he completed two or three sessions of gambling and alcohol related counselling.
It is the evidence of Mr Luong, who has known Mr Nigam since May 2000, that Mr Nigam was very sorry and remorseful for his actions and was now trying to “build up his life again”.
I have given careful consideration to Mr Nigam’s evidence that he does not intend to reoffend upon his release from detention. I am satisfied that at present Mr Nigam genuinely intends this to be the case. However, based on his evidence, I am not satisfied that he fully accepts responsibility for his past conduct. He seeks to minimise his involvement in past events. I am not satisfied that he has sufficient insight into his offending and the seriousness of his involvement.
I have given very careful consideration to the opinion of Mr Diment, consultant psychologist, dated 12 July 2016. In his report he stated that Mr Nigam’s prospects of rehabilitation are good and he assessed him as a low risk of recidivism. The Minister contended at hearing that “low risk does not mean no risk”.
At hearing Mr Diment explained to the Tribunal the methodology of assessment he undertook in arriving at his opinion and stated that there were limitations on its accuracy. The assessment he used is affected by many complex variables but overall the method was a “pretty good predictor” of future conduct. As suggested by the Minister, and accepted by Mr Diment, he relied upon a number of other opinions in making his assessment, these opinions are listed in his report. He accepted that he was not privy to the actual methodology used in reaching these other opinions. When questioned about Mr Nigam’s behaviour since his release from prison, Mr Diment accepted that a person’s behaviour “on their own devices is a better predictor” rather than when under supervision.
Since Mr Nigam’s release from prison on 31 March 2013, he has not been charged or convicted of any offences. While I accept this to be the case, I do not place significant weight on this factor. He was on parole and effectively ‘under supervision’ until 31 March 2016 and only ‘free’ in the community for approximately two months prior to his detention. I am not satisfied that this is a sufficient period of time to assess Mr Nigam’s likelihood of re-offending.
In Re Zhang v Minister for Immigration and Border Protection [2014] AATA 136 the Tribunal stated at [45]:
Until a person is free of such obligations to the Court, their conduct cannot be truly tested. On the other hand, compliance with a supervisory order should not be dismissed as irrelevant.
Taking all this into account, I am satisfied that there is a low risk that Mr Nigam will engage in further criminal or other serious conduct of the nature of which he has been involved in the past. Given the nature and seriousness of Mr Nigam’s past offending, I consider that even a low risk of re-offending poses a significant risk of substantial harm to the Australian community.
The risk to the Australian community should Mr Nigam re-offend weighs heavily against a decision that his visa not be refused.
PRIMARY CONSIDERATION (B) – THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 11.2 of Direction provides further guidance in consideration of this question. The Direction provides that I must make a determination about whether refusal of Mr Nigam’s visa is, or is not, in the best interests of his daughter. In determining the child’s best interests, sub-paragraph 11.2(4) sets out factors which I must consider where relevant. It provides:
In considering the best interests of the child, the following factors must be considered where relevant:
a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, including any Court orders relating to parental access and care arrangements;
c) The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e) Whether there are other persons who already fill a parental role in relation to the child;
f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
After considering all of the evidence, and particularly that of Mr Nigam, Ms Baily, Ms Broomhall, Mr and Mrs Luong, Mr Haynes and Dr Alsop, I am not satisfied that it is in the best interests of Mr Nigam’s daughter that his visa not be refused. My reasons for reaching this conclusion follow.
Mr Nigam’s daughter has significant special needs. She has been diagnosed with Autism Spectrum Disorder (autism) and Attention Deficit Hyperactivity Disorder (ADHD). She was first assessed and diagnosed with autism at age four. Additionally or as a consequence of her conditions, Mr Nigam’s daughter has language impairment, sleep difficulties and learning difficulties.
The evidence is very clear that Mr Nigam’s daughter requires stability and routine. Any change to her daily activities and patterns causes her great distress.
Ms Baily gave evidence at hearing that her daughter is prone to tantrums, aggression and disruptive behaviour when she gets upset or if things occur which are disrupting to her routine. She described the tantrums as very aggressive. Her daughter kicks, scratches, tries to run away, screams and bites. Ms Baily also reported that her daughter has threated people with knives and is susceptible to self-harm when distressed. When questioned about how she handles these occurrences, Ms Baily told the Tribunal that she has to physically restrain her daughter until she calms down and tries to reassure her that everything is ok. Given her daughter’s age, I accept that Ms Baily has real concerns about her ability to physically restrain her daughter in the future as she grows and gains in physical strength.
Mr Nigam suggested at hearing that Ms Baily struggles to cope with raising her daughter alone particularly in light of Ms Baily’s difficult childhood, related health issues and lack of friends and family members.
Ms Baily impressed me as an intelligent, competent and articulate woman who has a thorough understanding of her daughter’s needs and conditions. It is plain that Ms Baily loves and cares for her daughter very much. She has developed strategies for looking after her daughter and has in fact looked after her as a single parent for the past eleven years (minus the first few months of her daughter’s life prior to Mr Nigam’s imprisonment).
In addition, Ms Baily told the Tribunal that she is ‘single by choice’ and has had another child, a son, with the assistance of IVF and donor sperm. She told the Tribunal that her son impacts on her care for her daughter because he requires lots of attention and suffers from severe allergies. While this may be the case, Ms Baily was plainly aware of her son’s needs and was managing them.
I accept that caring for a child with special needs is challenging and that Ms Baily may need to seek help from others at times, and occasionally respite care. I also accept that Ms Baily feels she would be assisted by Mr Nigam’s more active participation in their daughter’s upbringing, particularly given their daughter’s special needs and growing physical strength. I do not however accept that she struggles to cope without Mr Nigam’s physical assistance. She has coped without him and alone for a significant period of time and I have no doubt that she can continue to do so.
Dr Alsop, registered psychologist, gave evidence that Mr Nigam’s daughter needs as much support as possible and ideally from a direct parental relationship. She said that the level of support was something “only a mother and father could give”. She opined in her report dated 9 July 2016, that it is in the child’s best interest for Mr Nigam to remain in Australia, if a number of optimal conditions transpired (“the Optimal Conditions”), namely:
· Anish (Mr Nigam) is a constant presence in all aspects of his daughter’s life (i.e. education, social relationships, etc.)
· Anish ensures, and/or works at, an understanding of his daughter’s special needs related to her disability;
· Anish maintains a high positive regard for his daughter, developing a relationship built on trust and security;
· Anish adheres to a constant level of contact with his daughter as a function of her general routines and any specific events in her life;
· Anish adheres to specific daily routines;
· Anish facilitates increased socialisation (as much as possible) with positive role models;
· Anish supports continued academic modifications and disability supports (including the development of her pragmatic communication skills);
· Anish reinforces positive behaviour interventions consistent between school and home;
· Anish aids in ensuring a highly structured environment;
· Anish ensures his parental role as positive role model for his daughter to influence and imprint positive, pro-social interactions and communications with others.
I must assess the situation as it exists, rather than rely on what Mr Nigam may or may not do in the future. On balance of the evidence and my reasoning below, I am not satisfied that the Optimal Conditions are likely to materialise.
Mr Nigam was present at the birth of his daughter. Three months following the birth he was incarcerated and face-to face contact was consequently limited. It is plain from the evidence, and I am satisfied, that Mr Nigam had very limited contact with his daughter for the majority of her life.
Mr Nigam had no contact with his daughter from late 2008. Following a brief visit in 2010, Ms Baily again cut off all contact between Mr Nigam and his daughter. In 2012, Mr Nigam sought legal advice and assistance and in late December 2012, by consent, Mr Nigam was able to have limited telephone contact with his daughter.
Mr Nigam maintained contact with his daughter’s maternal grandmother, Ms Broomhall. He wrote to Ms Broomhall between four to eight times a year between 2006 and 2013 and frequently asked after his daughter. Copies of the letters sent by Mr Nigam are attached to the statutory declaration of Ms Broomhall, signed 24 June 2016, of which I have read in detail and considered.
Upon Mr Nigam’s release from prison on 31 March 2013, Ms Baily allowed telephone contact until mid-2014. He was unable to visit his daughter while on parole. In November and December 2015, Mr Nigam completed a five week ‘Keeping Kids in Mind’ post-separation parenting course. On 1 February 2016 Mr Nigam was granted access to his daughter by way of telephone contact, twice a week, as per consent court orders. This contact has recently increased to daily telephone contact.
As of 23 September 2015, Mr Nigam was up to date with child support payments and has very recently been providing increased financial support for his daughter, above and beyond his required child support payments.
For the first time since 2010, Mr Nigam saw his daughter on 4 April 2016. She remained in his care, unsupervised, for three nights. By all accounts, the visit was a success and Mr Nigam and his daughter had a wonderful time together. However put into context, this is the only one-on-one contact Mr Nigam has had with his daughter since his incarceration in October 2005.
It is Mr Nigam’s evidence that he intends to move closer to his daughter and to increase his custodial care and/or visitations. This however is currently hypothetical and, as he says, dependent on finances. There is no clear plan at present for Mr Nigam to move closer to Ms Baily and his daughter, nor for them to move closer to Mr Nigam.
Mr Nigam gave evidence that he wished and intended to be involved in his daughter’s schooling and said that he wanted to assist her in any way that he could. He stated that he wanted to be involved in her education and wanted to help her deal with her learning difficulties. However, when pressed in cross examination, he could not recall the name of his daughter’s current school and conceded that he had made no attempt to contact her teachers in order to better understand his daughter’s needs and learning difficulties since he has been on parole.
It is Mr and Ms Luong’s evidence that Mr Nigam “adores and loves his daughter and wishes to be by her side to guide and support her as much as possible and whenever required.”
Although Mr Nigam says he now wishes to care for his daughter, it must be taken into account that he has been a father since July 2005. One of the charges of which he was ultimately convicted was a result of an offence committed on 10 January 2005. At the time that he has committed the offence, Ms Baily was pregnant with their daughter. He in fact claims that part of his motivation for committing the offence was due to financial pressure surrounding the impending birth of his daughter. It is plain that at the time that he committed the offence he gave little, if any, consideration to the well-being of his family as a consequence of the situation in which he now finds himself.
Notwithstanding the intentions of Mr Nigam, these are all considerations weigh against the likelihood that he will provide the security and family life commonly provided by a father for his child.
I accept Mr Nigam’s daughter may very well have a natural affection for her father that, no matter the period of absence or limitations to contact, would cause her to wish for his release and for him to return to the family fold. Mr Nigam’s daughter is young, and if Mr Nigam was able to act as he says he will, he could play a positive parental role in her life for many years to come.
Unfortunately, notwithstanding Mr Nigam’s best intentions, his role as a positive parental figure is largely untested. He has spent the majority of her life either incarcerated, on parole or detained. How he would respond to the daily challenges of fatherhood is mostly unknown.
His history of abusive conduct, although not physical, towards Ms Baily is also concerning. At hearing, Ms Baily told the Tribunal that her relationship with Mr Nigam was very difficult. Mr Nigam never hit her, although Ms Bailey told the Tribunal at hearing that domestic violence could be verbal, standing over you, power and intimidation. When asked if she had even been threatened by Mr Nigam, Mr Baily said “yes” but only on one occasion in 2003-2004. She stated that it was not related to the visa application. In the Department records, it is noted on 17 March 2006; Ms Baily telephoned and advised that “she only reinstated her sponsorship (of his visa) under threats by the applicant even though they were no longer together”.
As already stated, Mr Nigam’s prior conduct raises significant concerns for the safety of the Australian community. Any future criminal or other serious misconduct, whether directly or indirectly involving Ms Baily and his daughter, could have a serious negative impact on his daughter’s stability, routine and wellbeing.
I accept that being separated from her father may cause some difficulty however I am not convinced the extended separation from her father has had a significant negative effect on her so far. Whilst Mr Nigam’s daughter may have some difficulties at school, there is no evidence upon which I can be satisfied that her difficulties or behaviour will worsen without Mr Nigam’s direct parental involvement.
If Mr Nigam was required to return to India, it should not mean that he would lose all contact with his daughter or that he would be unable to contribute to her support. I do not accept Mr Nigam’s evidence that contacting his daughter from India would be very difficult given the four hour time difference, frequent religious festivals and his probable work schedule. His claims are mostly unfounded and unsupported by evidence. If he wishes to remain in his daughter’s life as much as he claims, the hurdles he identifies which may restrict frequent contact are not insurmountable.
It was Mr Nigam’s contention that he may struggle to find work in India and therefore may not be able to support his daughter financially as he does now. There is no evidence before me to support such a contention.
On balance, I am not satisfied it is in the best interests of Mr Nigam’s daughter that his visa not be refused.
This consideration weighs against a decision that Mr Nigam’s visa not be refused.
PRIMARY CONSIDERATION (C) – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 11.3 provides:
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.
I have no evidence to enable me to determine the expectations of the Australian community in this matter, other than the guidance provided by the Direction itself.
Clearly Mr Nigam has not met the expectation that as a non-citizen he will obey the laws of this country. Of the nearly 20 years he has spent in Australia, seven and a half of those years have been spent in prison and three years on parole. In the time he lived in the community he has committed the serious offences to which I have referred, involving physical violence and robbery for purely monetary gain. I also note that on 14 December 2000, Mr Nigam was convicted of a number of driving offences, including driving while unlicensed and driving an uninsured vehicle. While I accept that driving offences are not always considered serious, they do form part of his record.
In making the Direction, the Minister has made it clear 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.” The Principles to be applied, as set out in paragraph 6.3, state that the right of a non-citizen to be able to come to or remain in Australia is a privilege conferred in the expectation that he or she are and will be law-abiding.
It is also the expectation of the Australian community that a visa should be refused if the holder commits serious crimes in Australia or elsewhere: see Principles sub-paragraph 6.3(2).
This consideration weighs against a decision that Mr Nigam’s visa not be refused.
OTHER RELEVANT CONSIDERATIONS SET OUT IN DIRECION NO. 65
The facts of this matter present a very difficult and complex situation. I do not consider that there are any other considerations of material relevance to the present case. Besides his daughter, Mr Nigam has no other family members in Australia.
CONCLUSION
For all the above reasons, I am satisfied that the decision to refuse Mr Nigam’s visa is the correct and preferable decision.
The decision under review is affirmed.
I certify that the preceding 89 (eighty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak .................................[sgd].......................................
Associate
Dated 18 August 2016
Date(s) of hearing 3 - 4 August 2016 Solicitors for the Applicant Kinslor Prince Lawyers Solicitors for the Respondent Sparke Helmore
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