PGDX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2022] AATA 1034

PGDX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1034 (5 May 2022)
Division:GENERAL DIVISION
File Number: 2020/8340
Re:PGDX
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:5 May 2022
Place:Melbourne

The Tribunal affirms the reviewable decision.
...................... ...[sgd]...............................................
Senior Member A. Nikolic AM CSC
MIGRATION – citizen of India – mandatory visa cancellation – Class RN Subclass 187 Regional Sponsored Migration Scheme visa – five-year sentence of imprisonment – substantial criminal record – failure to pass the character test – Ministerial Direction No. 90 applied – nature and seriousness of offending conduct – other serious conduct – risk of reoffending – inconsistencies in evidence – insight and remorse – protection of the Australian community – best interests of children – family violence – expectations of the Australian community – impediments to removal – strength, nature and duration of ties – reviewable decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Crimes Act 1900 (NSW)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
Migration Regulations 1994 (Cth)
CASES
Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595
Brown v Minister for Immigration and Citizenship [2009] 112 ALD 67
Brown v Minister for Immigration and Citizenship [2010] 183 FCR 113
Bullmore v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1106
Bushell v Repatriation Commission (1992) 175 CLR 408
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101
Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78
FYBR v Minister for Home Affairs [2020] HCATrans 056
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Honeysett v The Queen (2014) 311 ALR 320
Hughes v The Queen (2017) 263 CLR 338
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120
Martin v Minister for Immigration and Border Protection [2017] FCA 1
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567
Murphy v Minister for Home Affairs [2018] FCA 1924
Negri v Secretary, Department of Social Services [2016] FCA 879
PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235
PGDX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 339
QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394
Say v Administrative Appeals Tribunal [2020] FCA 1489
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] 276 FCR 516
SECONDARY MATERIALS
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
5 May 2022
INTRODUCTION

The Applicant has asked the Tribunal to review a decision not to revoke the mandatory cancellation of his Class RN Subclass 187 Regional Sponsored Migration Scheme visa (the visa).
The hearing was held by videoconference from 23 to 25 March 2022. The Applicant was assisted by an interpreter in the Hindi language and represented by Ms Mamarot, a solicitor from South West Migration and Legal Services. The Minister was represented by Mr Watts from the Australian Government Solicitor (AGS).
At the commencement of the hearing the Tribunal directed the interpreter to engage in a discussion with the Applicant in Hindi, to ensure there were no dialect or other issues impeding a clear understanding between them. This was confirmed without any objection from the Applicant or his lawyer. No submissions were made during the hearing about any interpreter concerns. After the hearing concluded on 25 March 2022, however, the Applicant emailed the Tribunal claiming that the interpreter did not ‘fully interpret’ his answers. This issue is discussed later.
For the following reasons, the Tribunal affirms the decision under review.
BACKGROUND
The Applicant is a 37-year-old citizen of the Republic of India.[1] He was raised, educated, and worked there for over a decade,[2] with claimed attendance at an ‘engineering school’.[3] The Applicant variously claimed to be an Architect, Civil Engineer, and Civil Draughtsman.[4]
[1] Exhibit R1, 57.
[2] Ibid 107-108; 364 [25].
[3] Exhibit A1, [3].
[4] Exhibit R1, 95; 255 (25 May 2018); 258 (19 July 2018); 267 [5 April 2019]; 303; 363 [45] – 364 [26]; 425 [30].
The Applicant met his now ex-wife, who had lived in Australia since 2008, on social media. The Tribunal will refer to her in these reasons as ‘Ms K’. In 2012, Ms K went to India where she married the Applicant. They briefly lived together before she returned to Australia to sponsor his visa.[5]
[5] Exhibit A1, [10].
The Applicant said his first two visitor visa applications were refused by Australian authorities but the third was approved.[6] He came to Australia in September 2013[7] and Ms K gave birth to their first child soon after.[8] The Applicant resided in Australia on temporary visas for approximately 17 months, before departing in February 2015 when his Bridging visa ceased.[9] He lived in India for approximately six months before returning to Australia.[10]
[6] Ibid [11].
[7] Exhibit R1, 112.
[8] Ibid 95-96; Exhibit A1, [11].
[9] Ibid 112; 163.
[10] Ibid.
Ms K and her child were granted Australian permanent residency in 2015.[11] Apart from his child, the Applicant has no other family in Australia. His mother and three siblings live in India. One of his brothers suffered a serious health issue in 2021.[12]
[11] Ibid 31.
[12] Exhibit A1, [2].
Ms K’s short-lived marriage to the Applicant was characterised by conflict. An Apprehended Violence Order (AVO) was taken out to protect her after an incident in 2015. The Applicant was found guilty in 2016 for breaching an AVO and stalking / intimidating Ms K, for which he received two 18-month S9 (good behaviour) bonds (S9 Bonds).[13] In February 2017, Ms K moved out of the house they shared, citing ‘ongoing domestic violence’.[14]
[13] Exhibit R1, 29.
[14] Ibid 31.
The Applicant reoffended soon after the S9 bonds expired by breaking into Ms K’s home and having sexual intercourse with her without her consent.[15] This occurred only a few hours after he attended a police station to sign divorce papers initiated by Ms K.[16] In May 2018 the Applicant was convicted of Aggravated sexual assault – break and enter with intent (DV) – SI, for which he received a five-year sentence of imprisonment.[17]
[15] Ibid 34.
[16] Ibid 98; Exhibit A1, [21].
[17] Exhibit R1, 28.
On 31 October 2017 the Applicant lodged an application for Australian citizenship by conferral.[18] In 2018 he was invited by the Respondent to comment on why he did not declare any criminal offending in his application.[19] The Applicant responded with a Statutory Declaration dated 19 December 2018, which included the claim that Ms K had invited him into her home and consented to sexual relations on the night of his sexual assault against her.[20] He subsequently made similar claims that are discussed later in these reasons. The Applicant’s citizenship application was refused on 8 January 2019 because he did not satisfy the good character or general residence requirements.[21]
[18] Ibid 163 [3].
[19] Ibid 148-153.
[20] Ibid 156-159.
[21] Ibid 160-170.
On 5 February 2019 the Respondent advised the Applicant his visa was mandatorily cancelled because he had a ‘substantial criminal record’ within the meaning of s 501(6)(a) of the Act.[22] He acknowledged receipt of the cancellation decision on 5 February 2019.[23]
[22] Ibid 44.
[23] Ibid 50.
On 18 February 2019 the Applicant made representations about why the cancellation decision should be revoked.[24] He also submitted letters from himself, friends, Ms K, and other materials in support of his revocation plea.[25]
[24] Ibid 52-70.
[25] Ibid 71-97.
On 7 December 2020 the Respondent decided not to revoke the mandatory cancellation of the Applicant’s visa (non-revocation decision).[26] The Applicant was notified the next day.[27]
[26] Ibid 10.
[27] Ibid 7.
On 16 December 2020, the Applicant asked the Tribunal to review the non-revocation decision.[28] On 26 February 2021 the Tribunal, differently constituted, affirmed the non-revocation decision (first Tribunal hearing).[29]
[28] Ibid 1.
[29] PGDX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 339.
The Applicant sought judicial review in the Federal Court of Australia. On 18 October 2021, Kerr J upheld the only ground of appeal, quashing the first Tribunal decision and giving rise to this proceeding.[30] His Honour held that the impact on Ms K as a victim of the Applicant’s offending was not properly considered, causing the Tribunal to fall into jurisdictional error.
[30] PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235.
INTERPRETER CLAIMS
A Telephone Directions Hearing (TDH) was conducted on 4 April 2022 to discuss the Applicant’s claim that his evidence was not adequately interpreted. The Applicant was represented by Ms Milojkovic, a solicitor from South West Migration and Legal Services. The Minister was represented by Mr Watts of the Australian Government Solicitor.
Ms Milojkovic said the Applicant only raised concerns about the interpreter with Ms Mamarot after the hearing ended, because he took the Tribunal’s advice ‘literally’ not to discuss his evidence with others during adjournments. When asked what the Applicant’s specific concerns are, Ms Milojkovic said he believed the interpreter:
(a)Did not ‘correctly translate his words’ about his ‘mentality’ at the time of his offending;
(b)Told the Applicant he should respond directly to questions or the interpreter would ‘lose [his] job’; and
(c)Had not correctly translated some of the Applicant’s former sister-in-law’s evidence.
When asked what outcome the Applicant sought, Ms Milojkovic said he wanted to review the audio and transcript of the hearing to provide his perspectives about deficiencies in translation. The Tribunal declined this on the basis that the Applicant is a party to the proceeding and is therefore not well placed to provide an impartial perspective about the reliability of the translation. Moreover, his English skills are very limited, and he has no known qualifications as an interpreter. It is also inappropriate for an applicant to review and/or change their evidence after a hearing ends.
Mr Watts said the Applicant raised serious allegations about a NAATI[31] accredited interpreter, which was best dealt with by a complaint to NAATI. He said the Applicant’s claims were general at best, and it remained unclear what outcome he was seeking.
[31] National Accreditation Authority for Translators and Interpreters.
The Tribunal directed the Applicant to put his claims about interpreter concerns more formally and precisely in an affidavit or Statutory Declaration by 11 April 2022, including what outcome he sought. On 11 April 2022 Ms Milojkovic wrote to the Tribunal seeking an extension to lodge the document until 14 April 2022, which was granted. On Thursday 14 April 2022, just prior to the Easter break, a Statutory Declaration was received from the Applicant stating in part:[32]
[32] Exhibit A6.
…
6. I submit that I have three main concerns that I want to raise with the Tribunal concerning the quality and the conduct of the interpreter’s interpretation of oral evidence during my hearing at the AAT, Melbourne Registry.
7. The first issue raised occurred sometime on the first day of the hearing, the interpreter said to me in my language Hindi “The judge is getting angry at you”.
8. The second issue raised occurred, sometime on the first day of the hearing, the interpreter said to me in my language Hindi, “Don’t cause any problems, because I will lose my job”.
9. The third issue occurred on the second day hearing on 24 March 2022 during my ex-sister-in-law’s oral evidence. The question asked of my ex-sister was about how she was going to take my son to see me. I believe that the interpreter did not interpret my ex-sister in law’s evidence properly. I do not dispute my ex-sister evidence in her language, but I dispute on the interpretation in English.
10. I believe that the interpreter in my proceedings was unprofessional.
11. I believe the interpreter’s conduct and his comments has tainted my evidence during these proceedings.
12. I believe that the quality of the interpretation was not proper. As result, I believe the interpreter may have prejudiced my matter.
13. On the first day, I did try and contact my legal representative by text, however, I did not receive a response as they were in the hearing. Around lunchtime on the first day, I was instructed by Senior Member not to discuss my evidence with anyone.
14. On the third day after my hearing finished, I contacted my legal representative by email to raise serious concerns about the standard of interpretation at my hearing about 2pm (Perth time).
15. Marta Mamarot, my legal representative rang me back 2 or 3 hours after I sent the email to discuss my concerns.
16. I submit that I should be afforded a fair hearing. I have given instructions and my authority to my legal representatives either Marta Mamarot or Wendy Jennifer Milojkovic to obtain access to my audio recordings and transcripts of the Hearings - Day 1 and Day 2.
17. I intend to have the recordings and transcripts translated and to determine the quality of the interpreter’s interpretation and to find out if his conduct in these proceedings may have prejudiced my matter.
18. This statement was read to me by my solicitor Wendy Jennifer Milojkovic in English and interpreted by [interpreter name redacted] from Speak Your Language Translation & Interpretation Services in Hindi on 13 April 2022. I declare that my statement is true and accurate.
…
On 21 April 2022 a further TDH was conducted to discuss the Applicant’s Statutory Declaration. The Applicant was again represented by Ms Milojkovic and the Minister by Mr Watts. Ms Milojkovic submitted that:
(a)The Applicant is dissatisfied his responses were properly interpreted, which he believes denied him a fair opportunity to be heard;
(b)Two comments made by the interpreter had ‘scared’ him. The Tribunal noted this submission is not included in the Applicant’s Statutory Declaration;
(c)Ms Milojkovic said she asked the Applicant ‘four different ways’ about what he felt was deficient with the translation of his ex-sister-in-law’s evidence The Applicant told her the interpreter omitted to mention that if his ex-sister-in-law had a child, she may not be able to assist the Applicant with transporting his child for visits. The Tribunal noted this submission was also not contained in the Applicant’s Statutory Declaration.
Mr Watts said that despite being given an opportunity to properly articulate his claims, the Applicant had not done so. He submitted that the Applicant’s evidence over two days was ‘extensive and fulsome’; and it was now inappropriate to engage in a ‘fishing expedition’ after the hearing ended.
Decision on interpreter application
Once a hearing ends, particularly where an applicant is legally represented, there must be a very good reason to resume the hearing or test the veracity of a translation. This requires more than general assertions questioning an interpreter’s competence. Having heard from both parties, the Tribunal declined the Applicant’s request to seek expert analysis of the audio recording of the hearing or to re-open the hearing. The Tribunal gave oral reasons for this decision and undertook to include those oral reasons in its decision on the substantive matter. In doing so, the Tribunal adopts the reasoning of Bromberg J in Negri v Secretary, Department of Social Services [2016] FCA 879, which considered the extent to which the Tribunal could elaborate upon its oral reasons when producing written reasons. His Honour stated at [27]:
...As long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).
In his application to the Tribunal dated 16 December 2020, the Applicant said he required an interpreter in the Hindi language. He was provided with one at the first hearing in February 2021.[33] The Tribunal has considered the transcript of that first hearing and is well placed to assess the extent to which his evidence then correlates with his evidence at the present hearing. At the commencement of the substantive hearing on 23 March 2022, the Tribunal directed the interpreter to have a discussion with the Applicant prior to his evidence-in-chief, to confirm there were no dialect issues or other impediments to a clear understanding. None were raised by the Applicant or his legal representative. On several occasions during the Applicant’s oral evidence, he added to the remarks of the interpreter, including in broken English, which was difficult to understand. The interpreter nevertheless conveyed this information and on occasions asked permission to seek clarification from the Applicant before responding. The Applicant was asked several times by both parties and the Tribunal to use the interpreter, because his English is difficult to understand. On no occasion during the two days of the Applicant’s oral evidence, or after he left the witness box, did he or his lawyer convey any concern about the interpreter service provided.
[33] Exhibit R1, 2.
Having listened to and observed the Applicant during a multi-day hearing, the Tribunal is unpersuaded he is well placed to assess whether the Hindi to English translation by a NAATI-qualified interpreter is deficient. The Applicant gave extensive oral evidence and, as summarised later in these reasons, this correlates with and expands on his previous evidence before the Tribunal.[34]
[34] Ibid [358]-[448].
The Tribunal does not accept the Applicant’s claim that the Tribunal’s instructions not to discuss his evidence with others during adjournments impeded his ability to convey interpreter concerns. The Applicant was instructed at both Tribunal hearings not to discuss his evidence with others during adjournments.[35] This instruction is routinely given and does not impede concerns about an interpreter being raised – either directly during oral evidence or through a legal representative. The Tribunal did ask the Applicant on several occasions to be directly relevant to questions asked and to answer other questions when he declined to do so. In that respect, it is unsurprising the interpreter conveyed these directions. It remains unclear to the Tribunal how this may have impacted upon the Applicant’s evidence.
[35] Ibid 399 [10]-[26]; Exhibit A6, 2 [13].

Having been granted leave to more specifically identify why the translation of his evidence was deficient, the Applicant’s Statutory Declaration contains general assertions at best. At an interlocutory hearing on 21 April 2022, the Applicant did not even raise the concern he initially referred to at the 4 April 2022 TDH, that the evidence about his ‘mentality’ was not correctly translated. Ms Milojkovic instead raised two other issues that are not even contained in the Applicant’s Statutory Declaration:
(a)The first is that the Applicant was ‘scared’ by the two purported remarks from the interpreter. This submission was put approximately a month after the hearing ended. Having observed the Applicant’s oral evidence over two days, however, the Tribunal does not recall any occasion where he appeared scared or otherwise impeded from responding. The Tribunal instead observed him giving extended responses and, on occasions, adding to the interpreter’s remarks in Hindi and attempted English.
(b)The second concern raised relates to the evidence of the Applicant’s former sister-in-law. The Applicant claimed the interpreter omitted to mention that if his former sister-in-law had a child in the future, this may impede her ability to transport the Applicant’s child for visitation. The Tribunal questioned the relevance of this purported omission, particularly given the speculative premise on which it is based. Moreover, this information is averse to the Applicant’s interests. Ms Milojkovic agreed the former sister-in-law’s evidence during the hearing was favourable and the purportedly omitted information unfavourable but said the Applicant’s instructions were that all witness evidence should be fully conveyed.
In the absence of more specific claims by the Applicant about what aspects of his evidence were omitted or mistranslated, there is no persuasive basis to question the interpreter’s competence or to re-open the hearing. Given the Applicant’s poor English and reliance on an interpreter, he is not well placed to contend that translation from Hindi into English by a NAATI-certified interpreter is deficient.
The objective of the Tribunal is to provide a mechanism of review that is amongst other things fair, just, economical, informal, and quick.[36] There must be more than general assertions after a hearing has ended to justify expert analysis of audio recordings or to re-open a hearing. The Tribunal is unpersuaded that the Applicant’s general claims justify the course of action he proposes. It follows that the Applicant’s request to have the audio recording of the hearing expertly analysed, and/or to re-open the hearing, is declined.
[36] Administrative Appeals Tribunal Act 1975 (Cth), s 2A(b).
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction to review decisions under s 501CA of the Act.
Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if satisfied that the person does not pass the character test and is serving a full-time sentence of imprisonment.
The ‘character test’ is defined in s 501(6) of the Act:
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or …
Section 501(7) of the Act sets out six circumstances in which a person is taken to have a substantial criminal record, including if the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).
Under s 501CA(3) of the Act, the Minister is obliged, as soon as practicable after deciding to cancel a visa, to give notice of the decision to the person and invite them to make representations about revoking the original cancellation decision. Provisions relating to the form and process of those representations are found in reg. 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) of the Act provides a discretion that the Minister may revoke the original decision, if the person whose visa has been cancelled makes representations in accordance with the invitation, and the Minister is satisfied that the person passes the character test, or there is another reason why the original decision should be revoked.
Direction 90
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. Except for the Minister acting personally, the Direction must be applied by decision makers under the Act.[37] On 8 March 2021, the Minister signed Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction). The Direction commenced on 15 April 2021 and revoked the previous Direction 79 on the same date.[38] The Tribunal finds it is bound to apply the Direction in these reasons, based on the material currently before it.[39]
[37] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ).
[38] Direction, cls 2-3.
[39] Bushell v Repatriation Commission (1992) 175 CLR 408, 425 (Brennan J); Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78, [10]-[11] (Logan, Perry, and Beach JJ).
The following principles at cl 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(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)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens 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 by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Clause 6 of the Direction provides that, informed by the principles in cl 5.2, a decision-maker must consider clauses 8 and 9 where relevant to the decision. Clause 8 of the Direction identifies the following as primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)Whether the conduct engaged in constituted family violence;
(c)The best interests of minor children in Australia;
(d)Expectations of the Australian community.
Clause 9 of the Direction identifies a non-exhaustive list of other considerations:
(a)International non-refoulement obligations;
(b)Extent of impediments if removed;
(c)Impact on victims;
(d)Links to the Australian community, including:
(i)Strength, nature and duration of ties to Australia;
(ii)Impact on Australian business interests.
Clause 7(1) provides that, when taking the relevant considerations into account, ‘Information and evidence from independent and authoritative sources should be given appropriate weight.’
Clause 7(2) states that ‘Primary considerations should generally be given greater weight than the other considerations.’ That does not preclude the Tribunal, however, based on the specific circumstances of each case, to give an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[40]
[40] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
Clause 7(3) states that ‘One or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop[41] at [57]:
…the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501…
[41] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461.
DOES THE APPLICANT PASS THE CHARACTER TEST?
Because of his May 2018 conviction and the imposition of a five-year sentence of imprisonment, the Applicant has a substantial criminal record and therefore does not pass the character test. Accordingly, s 501CA(4)(b)(i) of the Act does not provide a basis for revocation.
ISSUE TO BE RESOLVED
It remains to be determined under s 501CA(4)(b)(ii) of the Act if there is ‘another reason’ why the cancellation decision should be revoked. The task of identifying ‘another reason’ was elaborated upon by the Full Court of the Australian Federal Court (FCAFC) in Viane v Minister for Immigration and Border Protection:[42]
There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.
EVIDENCE
[42] (2018) 263 FCR 531, [64] (Colvin J).
Documentary evidence and witnesses
Documents tendered into evidence were:
(a)G-documents collectively numbering 514 pages;[43]
(b)Applicant’s statement dated 6 March 2022;[44]
(c)Report of psychologist Dr Emily Kwok dated 14 March 2022;[45]
(d)Statutory Declaration of the Applicant’s friend dated 16 March 2022;[46]
(e)Statutory Declaration of Ms K’s sister;[47]
(f)Undated and unsigned statement of Ms K;[48]
(g)Statutory Declaration of the Applicant dated 13 April 2022;[49]
(h)Email relating to the Applicant’s attendance at a single 90-minute Smart Recovery meeting on 1 October 2021.[50] This was requested by the Tribunal during cross-examination and its provision therefore does not offend s 500(6J) of the Act.
[43] Exhibit R1.
[44] Exhibit A1.
[45] Exhibit A2.
[46] Exhibit A3.
[47] Exhibit A4.
[48] Exhibit A5.
[49] Exhibit A6.
[50] Exhibit T1.
National Criminal History and sentencing remarks
The Applicant does not dispute the accuracy of his criminal history, the sentencing remarks of the District Court of New South Wales dated 8 May 2018,[51] or the sentencing remarks of the Local Court of New South Wales dated 13 April 2016.[52]
[51] Exhibit R1, 30-35.
[52] Exhibit R1, 36-40.
Applicant’s evidence
The Applicant adopted his statement dated 6 March 2022 as true and correct. His oral evidence occupied the first day of the hearing and part of the second day. The Tribunal has also considered his documentary evidence.[53]
[53] Ibid 71-77; 333-334.
The Applicant referred to his background in India, including a decade of work as a draughtsman planning house construction. His mother and three siblings, to whom he remains close, reside in India. One of his siblings suffered a major health issue last year, which has placed emotional and financial strain on his family.
The Applicant’s claims during the hearing focussed on a desire to resume a parental role with his child. He stated that he is now a changed man who has learned from his experiences and intends living a law-abiding life. This includes returning to work to help support his child and alleviate financial pressure on his family in India. The Applicant claimed to call his child ‘ten times a day’ and wants the child to live with him periodically, including on weekends and public holidays.
The Applicant said he intends living with a former boarding school friend from India if released. This friend resides in a small regional town, which the Applicant initially estimated was two-or three-hours’ driving time from where his child lives. When it was pointed out the distance is approximately 500km, the Applicant accepted it was six-or seven-hours’ driving time away. The Applicant also accepted that Community Corrections had determined this friend’s house is unsuitable from a parole perspective; and if the Applicant is still under parole provisions upon release, he may be required to live in Sydney. The Applicant said he was prepared to do this and abide by any conditions imposed.
When asked about Ms K’s comparatively cautious plans for resumption of contact with their child, the Applicant said he had not spoken to Ms K and would seek Family Court orders if needed. In terms of the 12-hour round trip required to visit his child, the Applicant said he would be willing to drive halfway to the child’s location and stated Ms K’s sister could meet him there with the child. The Applicant claimed he would not find it distressing if Ms K refused to allow the child to undertake the 12-hour round trip as frequently as he would like.
Mr Watts took the Applicant through his offending and other conduct, prior to which the Tribunal reminded the Applicant of his privilege against self-incrimination. Ms Mamarot confirmed she also reminded her client of this. The Applicant agreed an AVO was taken out against him after an incident in October 2015, when he slapped his wife twice during an argument. He said Ms K’s parents and sister were in the home and tried to restrain him. The Applicant agreed his child was also present during this incident. The Applicant said he was heavily intoxicated and could not recall trying to grab Ms K’s telephone from her. The Applicant agreed he broke a laptop computer about 20 days prior to this incident; and that an AVO subsequently imposed on him contained several conditions, including not attending Ms K’s residence while intoxicated.
Mr Watts asked the Applicant about his attendance at Ms K’s home in March 2016 in breach of the AVO. He initially claimed ‘never’ to have broken AVO orders. When challenged, the Applicant responded: ‘Even if I breached the order I don’t remember and I want to move on from all this’. When directed to answer, the Applicant agreed he attended Ms K’s home in March 2016 while intoxicated, thereby breaching the AVO. When asked if he called Ms K and her family members ‘prostitutes and illegal immigrants,’ the Applicant said he may have done so but was unsure because of intoxication. He could not recall whether he told Ms K and her family members that he would kill them all before killing himself if they called the police.[54] The Applicant agreed he attended Ms K’s home on this occasion because of an ‘overwhelming desire to see his son.’
[54] Ibid 190.
The Applicant agreed his 2016 convictions represented a judicial warning that serious penalties would follow if he reoffended.[55] He accepted that he nevertheless committed a much more serious offence against Ms K in November 2017.[56] The Applicant agreed Ms K separated from him in February 2017 because of his ‘ongoing domestic violence.’[57] He also agreed they independently attended a police station on the afternoon prior to his offending to sign divorce papers. He claimed not to have taken this seriously, claiming: ‘we signed divorce papers two or three times before and I thought this was the same’. He said that in the past he ‘Googled divorce papers’, printed them out, and got Ms K to sign them before later tearing them up. The Applicant claimed that signing ‘real’ divorce papers at the police station was his way of showing Ms K their ‘relationship could be better’ rather than ending their relationship.
[55] Ibid 38 [15].
[56] Ibid 32-33.
[57] Ibid 31.
The Applicant agreed that on the night after signing the divorce papers, he went to Ms K’s home after midnight, where she lived with their child, her parents, and sister. He entered Ms K’s bedroom through her bathroom window, claiming his intention was only to explain himself and save their relationship. He agreed that he did not have Ms K’s permission to enter the home. He said that he sat on the bed for 30 or 40 minutes where Ms K and their son were sleeping, and she awoke after he lay on top of her. He agreed that Ms told him she did not want to have sex, but he told her ‘this is the last time’. She continued to resist, and the Applicant agreed he was in no doubt Ms K did not consent, but he forced her to have sex in the terms described in the sentencing remarks.[58] The Applicant claimed his son slept through this attack and did not witness his conduct. It was put to the Applicant that the presence of his child during the 2016 domestic violence and 2017 sexual assault, suggested he put his own interests ahead of the child. He responded: ‘There can’t be any worse person than me who has done this heinous crime in front of their own child’.
[58] Ibid 32-33.
The Applicant was asked about a citizenship application he lodged in 2017[59] and why it stated he had no convictions[60] despite having two convictions at that time. The Applicant claimed Ms K filled the form in for him and he signed without reading it, but later said: ‘I did two mistakes on this form’, including about no convictions. Later in his evidence, however, he again claimed to have signed the form without reviewing its contents.
[59] Ibid 302-319.
[60] Ibid 316.
Mr Watts asked the Applicant about a Statutory Declaration dated 19 December 2018,[61] in which he claimed Ms K asked him to come to her home and invited him to enter through the bathroom window on the night of his 2017 offending. The Applicant said this claim was a ‘mistake’. When asked why he lied in a Statutory Declaration, the Applicant insisted it was a ‘misunderstanding’ because he used to enter their residence in the past through the window and ‘thought [he] could do the same at [Ms K’s] new house’. The Applicant accepted it was a lie, however, to claim Ms K invited him to enter the home. He said the lies about his offending were because his ‘mentality was not right’. When it was put by Mr Watts that the Applicant told these lies to convince the Respondent and others that he was falsely accused of sexual assault, the Applicant disagreed. He claimed to have ‘gone through a lot’ during the last three years and is now a ‘changed person’, but at the time of the sexual assault he still considered Ms K his wife and was trying to save their relationship. The Applicant’s claims about his offending at this point bordered on inadvertence or automatism:
This just happened accidently. I don’t know how it occurred. The circumstances were beyond my control and I was not in my senses. I tried to explain things and that didn’t work, so I thought to give her some love, which might put things in my favour.
[61] Ibid 156-159.

The Applicant agreed it was not possible to sexually assault someone accidently. He also agreed that he did not have a conversation with Ms K prior to sexually assaulting her as he previously claimed, stating: ‘It wasn’t a reality…it was just in my mind’.
The Applicant was asked about multiple incidents of misconduct while imprisoned, including consumption of illicit drugs. He stated that he took Buprenorphine while imprisoned about twice a week for six or seven months, which commenced around March or April 2019. He said this was given to him by other inmates. He said that he accepted his guilt for illicit drug and tobacco possession during internal prison disciplinary proceedings, leading to sanctions like the loss of ‘buy-ups’ and denial of other privileges. The Applicant was asked why he engaged in such misconduct despite wanting to return to the community and knowing that his visa status was under review. He responded that his misconduct was ‘wrong’ and would not be repeated.
The Applicant was asked about a record in evidence dated 7 November 2019, in which he reportedly denied his offending to a Community Corrections Officer, claiming Ms K was blackmailing him for money.[62] He said at this time his ‘approach of thinking was different’ but denied stating that Ms K was blackmailing him. Mr Watts asked the Applicant about another record dated 9 January 2020, in which he reportedly stated Ms K ‘positioned their son in a way which led him to believe she wanted to have sex…she did not say yes to the sex but claimed she had not said no either’.[63] The Applicant stated this record was untrue.
[62] Ibid 273.
[63] Ibid 274.
Mr Watts asked the Applicant about a detention centre record dated 19 November 2020, in which the Applicant reportedly told a counsellor that Ms K fabricated the ‘rape allegations’ because he told her family about an affair she was having, that he ‘denied any physical abuse’ towards her, and that she had instead physically, financially, and emotionally abused him.[64] The Applicant agreed he said these things, which were wrong; and he had done so because his ‘mentality’ and ‘way of thinking’ at the time were flawed.
[64] Ibid 180.
At the first Tribunal hearing the Applicant stated that after reflecting on his past conduct and praying, he no longer blamed Ms K for having affairs, and now accepted: ‘it’s all my fault.’[65] He then claimed to have realised the error of his ways in 2018 after his mother’s illness and his sister’s divorce, following which he became a ‘completely changed person’.[66] At the present hearing, however, the Applicant claimed he only realised in the first quarter of 2021, after entering immigration detention, that he should accept responsibility for his offending. When challenged about this inconsistency in his evidence over the two Tribunal hearings, the Applicant insisted he was a changed person in 2018, but in 2021 ‘started to accept’ that he should stop lying about his conduct and admit personal responsibility. This evidence was later contradicted by a close friend who the Applicant intends living with if released, who said the Applicant consistently denied any offending against Ms K.
[65] Ibid 396 [47].
[66] Ibid 397.
During cross-examination, Mr Watts asked the Applicant about his consultation with Dr Kwok, the extent to which he was truthful with her, and about his rehabilitative progress. The Applicant agreed that what Dr Kwok noted in her report is what he told her and although he is yet to undertake any recommended treatment, intended doing so if released. The Applicant agreed he told Dr Kwok he did not consider he required any mental health treatment.[67] The Applicant claimed he told Dr Kwok about his Buprenorphine and Cannabis use but agreed there was no reference in her report to the latter.
[67] Exhibit A2, [46].
The Applicant said if he can remain in Australia, he intends to find work, resume a parental role with his son, and live a law-abiding life. He invoked the interests of his child in particular as a compelling protective factor mitigating his recidivism risk.
Evidence of Applicant’s friend
A friend of the Applicant, who has known him since boarding school in India, gave oral evidence and was cross-examined. The witness adopted his Statutory Declaration as true and correct. Key aspects of his evidence are summarised as follows:
(a)He lives in a small regional town with less than 100 residents and no medical practice. The nearest medical services are approximately 30 km away and he is unsure if this includes mental health services. The Applicant has no other friends in this town.
(b)If the Applicant is released into his care, the witness will provide accommodation and other support until the Applicant re-establishes himself.
(c)The witness has had little personal contact with the Applicant over the years. They have communicated predominantly by telephone and his knowledge of the Applicant is largely based on their time together at an Indian boarding school. The witness said his knowledge about the Applicant’s family and the Applicant’s ‘calm voice’ when they speak, has reinforced his belief that the Applicant is a ‘truly changed person’.
(d)The witness thinks the Applicant is a good father, but this is solely based on what the Applicant told him during their telephone conversations.
(e)The witness was asked about the Applicant’s offending, which he characterised as a ‘mistake’. He said the Applicant consistently told him he was falsely accused by Ms K: ‘He’s been telling me this from the start’. The witness thought the last time the Applicant told him this was about a year ago and he was ‘not 100% sure [the Applicant had] really made the mistake’ for which he was convicted.
Ms K’s evidence
Ms K adopted her statement as true and correct. The Tribunal has also considered her other documentary evidence,[68] and the transcript of her evidence at the first Tribunal hearing.[69] Key aspects of Ms K’s current evidence, on which most weight is placed, are summarised as follows:
[68] Ibid 92-93; 332.
[69] Ibid 432-438.
(a)Ms K feels she now has a strong support system in place from her new partner, her siblings, and others. Her new partner owns substantial farming properties, has an aircraft, and works fulltime running his businesses. Ms K works parttime and looks after the household and her son. Her new partner loves the child and ‘does everything a dad is supposed to do’. Her son used to call her new partner ‘uncle’ but now calls him ‘dad’. Her new partner takes the child to the pool, shopping, the park, and to his 1000-acre farm on weekends.
(b)When asked what would happen in relation to co-parenting arrangements if the Applicant is released, Ms K said there has been no discussion or agreement yet. She has not spoken with the Applicant since his offending because she was so scared it took her ‘years to get through that thing’. Ms K said she wants any visitation with their child to be supervised and intends going ‘through all the processes’ to ensure any changes in the child’s behaviour are assessed. She will allow the Applicant to see their child ‘now and then’ but is still unsure ‘how it will work out’;
(c)Ms K believes the Applicant has changed his ways because of his imprisonment. She said the Applicant told his family in India that he intends to change. They told her family, which was conveyed to her. She referred to a ‘very big family’ in India which was affected by the Applicant’s imprisonment. She said their perceptions and cultural reasons in the past had adversely impacted her decisions to seek help. Ms K said she had experienced ‘pressure from everyone…culture wise’ in the past, including from family members about not talking to police when the Applicant was offending against her. She was also blamed for the breakdown of the Applicant’s sister’s marriage in India, purportedly because of the Applicant’s imprisonment.
(d)When asked what would occur if the Applicant lived six hours away from their son upon release, Ms K said she did not want the child to travel that far because it would disrupt his schooling and other extra-curricular activities, including on weekends. She said the child did not like driving long distances, became car sick, and visitation may therefore only be possible every few months or so. When asked about the Applicant’s intention to seek Family Court orders, Ms K did not believe this was required. She intends voluntarily providing access, but in a way that does not adversely affects their child’s education and other interests. She said the child was performing very well academically, played rugby and did many activities with her new partner, siblings, and others, which should not be compromised.
(e)Ms K said if the Applicant returns to India, she will not travel there with her child because of feeling unsafe. This included because the Applicant would be ‘desperate to keep [the child]’ and the lack of comparable police support. Despite that, she supports the Applicant remaining in Australia to facilitate some sort of future interaction with their child. This is only because she feels guilty about constantly telling their child the Applicant is busy working or otherwise occupied. Beyond this, she did not refer to other impacts on herself resulting from the Applicant’s repatriation.
(f)Ms K was taken through the Applicant’s offending and other conduct towards her in the past. She said her reason for not wanting to submit police statements on some occasions was because of family pressures and their child’s interests. She considers the Applicant’s violence against her ‘was very bad’ and the police helped her understand this. She eventually became willing to address the Applicant’s unacceptable conduct.
(g)Ms K said the Applicant had a significant problem with alcohol and lost control when he drank. He previously promised to remain abstinent but ‘that didn’t happen’. She called police on two occasions when he was violent against her but not on every occasion. She thought there may have been about five other occasions when she did not do call police. She recalled one occasion when he broke a laptop computer by throwing it while intoxicated and stated: ‘Every time he got drunk he got aggressive’;
(h)Ms K said in February 2017 she and her sister moved out of the house they shared with the Applicant. She previously thought ‘he’d get better after four years’ but eventually realised ‘it wouldn’t work out’. She left her possessions behind and said her romantic relationship with the Applicant ended at that point. Ms K said the Applicant occasionally came to her new home to visit their child, who missed his father, and intermittently slept with the child. She said this arrangement continued ‘for a few months’ but stopped in March or April 2017 when her parents arrived from India to help her.
(i)In relation to the Applicant’s 2017 offending, Ms K said they signed divorce papers she initiated because ‘whenever he’s angry or drunk’ he threatened her with divorce, so they ‘decided it’s better to make it happen’. Their parents also eventually agreed to their divorce.
(j)Mr Watts asked Ms K about the Applicant’s claim to others since 2017 that he did not sexually abuse her, and that she had instead abused him. Ms K said this was untrue.
(k)Mr Watts asked Ms K about the Applicant’s citizenship application. She agreed that they filled forms in together and she asked the Applicant questions about his parents’ dates of birth and other issues. When asked about the criminal convictions question, Ms K said the correct response is ‘yes’ because ‘he already had two crimes by then’. She would not have ticked ‘no’ for this question because it would be false.
Evidence of Ms K’s sister
The witness adopted her Statutory Declaration as true and correct. Key aspects of her evidence are summarised as follows:
(a)The witness and her husband help Ms K care for her child.
(b)Ms K’s new partner is a ‘good father’ who cares for Ms K’s child as a father should.
(c)The witness claimed she could not remember much about the Applicant’s offending because it was a long time ago, and she did not discuss it with Ms K. She remembered police being called on several occasions but could not recall why.
(d)The witness last spoke with the Applicant when she gave evidence at the first Tribunal hearing. She believes the Applicant will not reoffend because he told his family in India this, who told her family in India, who communicated this to her.
(e)The witness believes the Applicant loves his son and is a good father, including because he sends the child chocolates and gift cards.
(f)If the Applicant is released in Australia, she will conform with Ms K’s wishes about visitation. If required to do so, she will drive the child six hours to where the Applicant is likely to live. She claimed to be able to afford the fuel costs.
Corrective services records
The Tribunal has considered prison records dated between 20 November 2017 and 20 May 2020,[70] which include reference to the following:
[70] Ibid 243-286.
(a)In a report dated 7 May 2018 the Applicant is recorded as stating he ‘hopes to…eventually return to India to take care of his mother who he reports is unwell’;[71]
[71] Ibid 253.
(b)In a report dated 9 May 2018 the Applicant is reported to have gained prison employment.[72] A report dated 24 August 2018 states he ‘works on the ground maintenance gang with a good report from his overseer’;[73]
[72] Ibid.
[73] Ibid 259.
(c)Further reports dated 20 December 2018 and 8 January 2019 stated the Applicant had been working for four months in ‘Timber Processing’ and was doing a good job.[74] A report dated 2 August 2019 stated he ‘has been working well at farm 3 with no issues…He is off good health and has no problems at this time’;[75]
[74] Ibid 263-264.
[75] Ibid 269.
(d)In the Applicant’s pre-release report it is stated:[76]
[76] Exhibit R1, 292.
Employment
[The Applicant] is currently employed in the Inmate Kitchen, Food Services Industry…and has held this employment since his arrival in August 2018. He has recently received positive work reports from his assigned overseer in regards to his work attendance and overall attitude toward his role. He was promoted to leading hand in December 2019.
Overall [The Applicant] has had a positive work record during the period of custody and has generally responded well to the employment he has been assigned.
(e)In a report dated 19 July 2018, the following is recorded:[77]
[77] Ibid 258.
The inmate does not agree with the Police Statement of Facts and totally denies involvement in sexually assaulting the victim, claiming that he was invited to the location by the victim and was involved in consensual intercourse with her. [The Applicant] claims that the victim invited him to the location and had sexual intercourse with him in an attempt to generate evidence against him prior to her complaint to police. He claims that he was "set up" by the victim.
(f)In a report dated 27 August 2018,[78] the following is recorded: ‘He spent a period reflecting his views on his ex partner's sexual promiscuity and the welfare of his child while living with her’.
[78] Ibid 259.
(g)There are several references to the Applicant having no visitors while imprisoned, being precluded from seeing his child because of AVO conditions, and requesting video communication with his family members in India.[79] A record dated 5 April 2019 stated the Applicant has no family in Australia except for his son but ‘has good support from family in India’.[80] The report also stated:
[79] Ibid 264.
[80] Ibid 267.
[The Applicant] does not accept his offending behaviour and still states that this is a misunderstanding and was setup by his ex-wife as she was cheating on him. [The Applicant] has an OIC recorded and continually try's to find ways of getting around the system. Has been found trying ways to breach his AVO and manipulate people to assist him.
(h)A report dated 11 June 2019 states the Applicant was charged on two occasions with possession of illicit tobacco.[81]
[81] Ibid 268.
(i)In a report dated 9 January 2020, the following is recorded:[82]
[82] Ibid 274.
[The Applicant] described distrust between himself and his wife, specifically as he claimed she had not told him of her previous marriages prior to their marriage and move to Australia. He stated he felt betrayed and this was often a source of arguments. He claimed when they argued he would ask for a divorce and she would not agree. He denied any feelings of anger, rather of feeling sad and wanting to be around for his son. He stated he worked 16 hours day and relied on his wife for care of their child and therefore felt he could not leave. In discussing the lead up to the offences he stated he suspected she had been unfaithful but had not raised with this her.
He did not believe his entry into the home via the window was unusual, as he stated he usually did this so he did not wake his son and wife. he also advised his wife had positioned their son in a way which lead him to believe she wanted to have sex. He stated she did not say yes to the sex, but claimed she had not said no either. CCO challenged him around gaining consent, advised again about how she had positioned their son on the other side of the bed. Then discussed how he may have changed things in the map if he could, stated he would not have gone to the house at all. He still did not appear to have insight into his behaviour around consent as well distrust, including looking at her phone for evidence of an affair.
He discussed that in the future he hopes for a healthy relationship, whereby he stated the woman would not have been married previously. He appeared to put all the issues down to his wife's past marriages and was unable to look past this. He nominated his main priority as his son and being able to see his son through assistance of his mother in law and sister in law who he stated he is still in contact with.
… He appeared to have a negative view of the victim and in no way appeared to consider the impacts upon her. His insight appeared to be self referential and how the offence impacted upon him and his son, rather than how it may have affected his ex wife.
(j)In a report dated 10 February 2020, the following is recorded:[83]
[83] Ibid 280.
[The Applicant] described feeling used by his partner after she asked him for money on the night of the offence and he also continued to suspect her of infidelity however did not bring it up prior to the offence. He stated he ad [sic] previously asked her and she had denied being unfaithful. He stated the [sic] had been living together in the rental property, as there was an Indian festival on and they were trying to work on their relationship. He stated they continued to argue and when they argued he claimed he would leave. He also advised he would not speak to her for several days, even if she tried to talk to him…
In the lead up to the offence he stated he woke her up when she was sleeping, felt it was okay as they are husband and wife, although he conceded they were not in a good place in their relationship.
He stated he has no intentions of attempting to make contact in the future and will facilitate contact with his son through his mother in law. He stated he wants to move on with his life and did not appear to have any insight into how the victim may be feeling about his release or after the offence.
(k)In the Applicant’s pre-release report from prison, he claimed to have been residing with Ms K at the time of his offending, despite being reminded that he pleaded guilty to breaking into the premises prior to sexually assaulting her.[84] This report also stated the Applicant:
[84] Ibid 288.
…conveyed a particularly negative attitude toward his ex-wife, the victim of the current offences. He described his ex-wife as being dishonest and claimed she had been unfaithful to him. He stated she refused to divorce him and alleged the victim continued their relationship for financial support.
[The Applicant] was challenged in relation to these attitudes and he continued to place blame upon the victim and deny any wrong doing. He claimed the sexual intercourse was consensual although conceded his ex-wife had not verbalised her consent prior to the assault occurring.
He rationalised his behaviour within the context of a marital relationship and felt his actions were acceptable. He expressed very little insight into his offending behaviour and indicated no concern or regard for the victim as a result of his actions.
Domestic violence
[The Applicant] has previously been convicted of domestic violence related offending, committed against his ex-wife. He disclosed ongoing issues within their relationship which commenced upon their arrival in Australia. He alleged his ex-wife concealed her previous marriages from him and when he was made aware of them he reported feeling as though the relationship was broken. He discussed accessing the victim's mobile phone over his suspicions of her infidelity, which he justified by stating she was his wife and he was entitled to do so.
In addition to verbal arguments, [The Applicant] also admitted to emotional abuse of the victim by giving her silent treatment for days at a time following disagreements. He minimised the impact of his behaviour upon the victim and was focused upon how he and his son had been affected.
He is currently subject to a non-contact apprehended domestic violence order for the protection of his ex-wife and their child, which expires on 10 April 2020, prior to the expiration of his earliest possible release date. [The Applicant] cited an intention to share custody of his son with his ex-wife, although advised this would be facilitated through a third party.
Sex offending
[The Applicant’s] sexual offending occurred within the context of the end of the marital relationship with the victim. He had a previous domestic violence related conviction and had also been subject to an Apprehended Violence Order (AVO). He also discussed engaging in verbal arguments with the victim over a prolonged period of time and appeared to have pent up anger toward the victim.
His sexual offending appears to be related to his perceived lack of control within the relationship, particularly as [The Applicant] demonstrated a fixation upon her suspected infidelity, which he stated she denied. The offending also appears to have been planned to some degree, given he had left the premises earlier in the evening and when he returned to the home he broke in through the victim's window. He appears to have utilised instrumental violence in the form of the assault as a means to regain power and control within the relationship with the victim.
[The Applicant] minimised his sexual offending, by claiming the sexual intercourse was consensual. He further claimed his ex-wife made the complaint to Police for financial reasons.
Responsivity
Attitude to victim
As outlined above, [The Applicant] appears to continue to have a negative attitude toward the victim and apportioned blame toward her for his current incarceration. He provided no insight into the potential impact of his offending behaviour upon his ex-wife, citing his main concern was for his son, whom he stated has been negatively affected by his imprisonment. He advised the victim fabricated the assault and the sexual offending was consensual.
Notwithstanding this, he stated he has no intention to contact his ex-wife upon release and would comply with any conditions imposed in relation to prohibiting contact. [The Applicant] did however indicate an intention to seek visits with his son upon release.
Willingness to undertake intervention
[The Applicant] has demonstrated a willingness to comply with the recommendations to be assessed for sex offender treatment and has consented to a referral being made to Community Sex Offender Programs on his behalf. Recent discussion with the Psychologist with Forensic Psychology Services (FPS) advised due to the FPS Treatment positions being in high demand it is likely that he would not be prioritised for treatment at this stage. However, it was indicated this may change in the future following the outcome of the status of his residency in Australia; therefore his suitability for the program cannot be finalised. It was recommended [The Applicant] be referred back to FPS should he be allowed to stay in the country and provided that he has sufficient time remaining on his order.
[The Applicant] has been assessed as a low risk of general reoffending and therefore is ineligible for participation in offence targeted programs currently offered by CSNSW. He has agreed to participate in alternative forms of intervention to address his offending behaviour, including psychological assessment and treatment if released to the community.
Ability to undertake intervention
At this stage, [The Applicant] is an unlawful citizen and will be placed into immigration detention if released. Therefore it is uncertain, at this stage, if he will be able to access treatment to address his offending behaviour. If released from immigration on appeal, there would appear to be no other identified access constraints to [The Applicant] undertaking interventions in the community.
IHMS records

The Tribunal has considered records from the International Health and Medical Services (IHMS), dated between 12 November 2020 and 31 December 2020.[85] Key aspects of this material can be summarised as follows:
(a)The Applicant suffers depression for which he takes medication nightly.
(b)Key concerns expressed by the Applicant include being able to resume his role as father and as financial provider for his family in India.
(c)The Applicant informed a counsellor that his 2018 conviction arose from false claims made by Ms K after he informed her family about an extra-marital affair. He claimed that he suffered ‘repeated financial, physical, emotional abuse’ from Ms K and her family, was humiliated by Ms K’s previous marriages and alleged multiple affairs, and that ‘the rape allegations’ were part of Ms K’s course of conduct.[86] The Applicant is reported to have denied to the counsellor that he physically abused Ms K, and that she ‘would often use their son…to manipulate’ him.[87]
[85] Ibid 171-183.
[86] Ibid 176; 178; 180.
[87] Ibid.
PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
Clause 8.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers should keep in mind 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. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) 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.
Tribunal consideration: The nature and seriousness of the conduct
Clause 8.1.1 of the Direction sets out factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other conduct to date. Decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197 A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
The Applicant’s criminal conduct since arriving in Australia[88] includes abusing and threatening to harm Ms K and members of her family. He broke a laptop computer by throwing it, followed by a violent incident on 8 October 2015. The Applicant said he was heavily intoxicated, may have slapped Ms K twice, called Ms K and her parents prostitutes and illegal immigrants, and threatened to kill them before killing himself if they called police.[89] This conduct resulted in an AVO being taken out against him.[90]
[88] Exhibit R1, 28-29.
[89] Ibid 189-190.
[90] Ibid 191.
The Applicant breached this AVO in early 2016 by stalking / intimidating Ms K.[91] He claimed this offending arose in the context of an ‘overwhelming desire to see his son’,[92] and that his judgement about how best to see his son was impaired by alcohol. The Court referred to the Applicant’s ‘ongoing domestic violence’[93] against Ms K when imposing an 18-month good behaviour bond for each offence. Her Honour described the Applicant’s conduct as ‘a serious offence being a breach of an order of the Court’.[94] The Applicant’s inability to reside at the same premises as Ms K and their child was continued by the Court.[95]
[91] Ibid 37 [17]-[48].
[92] Ibid 37 [18].
[93] Ibid 31.
[94] Ibid 38 [1].
[95] Ibid 38 [26]-[46].
The Applicant accepts he was warned by the Court in 2016 that if he committed any more offences during the 18-month term of the S9 Bonds he would face ‘more serious penalty’.[96] About a month after these bonds expired, he committed the Aggravated Sexual Assault – Break and enter with intent (DV) – SI offence. The Tribunal has considered the Agreed Facts on which the Applicant pleaded guilty.[97] This involved sexual intercourse with Ms K after breaking into her home in the early hours of the morning, while their child was sleeping in the same bed.[98] The Applicant had attended a police station approximately seven hours earlier to sign divorce documents initiated by Ms K. The elements of this offence require an absence of consent by the victim and knowledge by the perpetrator that there was no consent to sexual intercourse.[99] One possible aggravating feature of this crime is if the offender ‘breaks and enters’ into the dwelling with the intention of committing the offence.[100]
[96] Ibid 38 [15].
[97] Ibid 300-301.
[98] Ibid 30; 406 [12].
[99] Crimes Act 1900 (NSW), s 61J.
[100] Ibid, s 61J(2)(h).
The Tribunal considers the Applicant’s evidence about his relationship with Ms K and his offending to be inconsistent and unreliable. Examples include:
(a)In oral evidence the Applicant initially claimed Ms K had not separated from him in February 2017 because of his continuing family violence against her. When asked about a reference in the sentencing remarks to this effect, he changed his evidence and agreed the Court’s remark was accurate.
(b)The Applicant claimed that entering Ms K’s house through a bathroom window was not unusual, because he felt like he was still married to her and accustomed to treating her home as his own.[101] The Tribunal does not accept this because Ms K left him about nine months earlier and he signed divorce papers at a police station the afternoon prior to sexually assaulting her. The Tribunal found the Applicant’s evidence about signing these divorce papers as a means of saving his relationship with Ms K to be implausible and self-serving.
(c)The Applicant’s oral evidence is that he entered Ms K’s home to explain himself and resurrect their relationship. This sits uncomfortably with evidence accepted by the Court that he told Ms K ‘this is the last time’[102] prior to sexually assaulting her.
(d)The Applicant told the Court he woke Ms K upon entering her bedroom and they had a 30-minute conversation prior to the sexual assault.[103] At the present hearing, however, he claimed there was no conversation, he sat on the bed observing Ms K and their child for ‘30 or 40 minutes,’ and she only woke after he lay on top of her.
(e)The Applicant erroneously claimed to Dr Kwok that at the time of his 2017 offending he was still spending some nights each week with Ms K, which is directly contradicted by Ms K’s evidence. The Tribunal prefers Ms K’s evidence that their romantic relationship ended in February 2017, after she and her sister moved out. This was followed by a period of decreasing visits by the Applicant during March and April 2017 to help settle their son before Ms K’s parents arrived from India to help her.
[101] Exhibit R1, 390 [6]; 407 [19].
[102] Ibid 32.
[103] Ibid 33.
The maximum penalty for the crime the Applicant was convicted of is 20 years imprisonment. The Court imposed a five-year sentence of imprisonment, including because of the Applicant’s guilty plea, contrition, and remorse. Ms Mamarot submitted this sentence was well below the maximum sentence available and the sentencing judge considered the offending to be ‘below the mid-range’.[104]
[104] Ibid 34.
The Tribunal has considered the Applicant’s 2017 citizenship application.[105] The ‘No’ box is ticked in response to the question: ‘Have you been convicted of, or found guilty of, ANY offences overseas or in Australia…’[106] This response failed to disclose the Applicant’s convictions 18 months earlier for contravening an AVO and stalking / intimidating Ms K. In signing this form several times, including on the page containing the false representation about criminal convictions, the Applicant declared that the information provided was ‘complete, truthful and correct in every detail’. The Tribunal has also considered the Applicant’s denial of his offending in a 2018 Statutory Declaration to the Respondent, to others in custodial settings, and to his only close friend in Australia.
[105] Ibid 302-319.
[106] Ibid 316.
The Tribunal has considered prison reports about the Applicant returning positive urinalysis tests on two occasions for buprenorphine and cannabis metabolite; and undergoing internal disciplinary proceedings for these and other matters.[107] The Applicant’s pre-release report from NSW Corrections stated:[108]
[107] Ibid 195-242.
[108] Ibid, 291.
Behaviour in custody
[The Applicant’s]…classification was reviewed due to his incurrence of four offences in custody (OIC) particularly in relation to his possession of tobacco and fail prescribed drug tests…
On 11 June 2019 he returned a preliminary positive result for Buprenorphine; a subsequent confirmatory test indicated positive to Buprenorphine as well as Mirtazapine. Previous to this, he had tested positive on 27 July 2018 to Buprenorphine and cannabis.
[The Applicant] attributed his drug use to feelings of depression due to having limited contact with his son. He claimed his drug use was not regular and he claimed he maintained abstinence since his previous positive drug test. On 14 July 2019 he returned a negative drug test result which appeared to indicate some ability to remain abstinent.
In oral evidence the Applicant stated that his use of illicit drugs like Buprenorphine was approximately twice a week for a period of six or seven months. This reflects more extensive drug use than is disclosed by the two positive urinalysis tests.
Ms Mamarot stated in closing submissions that care should be taken about the weight placed on contemporaneous police reports and other records from custodial settings. In response to questions from the Tribunal, she properly accepted, however, that the Tribunal can have regard to ‘other conduct’ not leading to charges or convictions, where the Applicant concedes this conduct or there is other persuasive evidence.
Tribunal findings: The nature and seriousness of the conduct
In terms of the probative weight to be given to police and other records, this material routinely forms part of the evidence in visa cancellation cases. The documents are usually obtained under summons and do not assume the status of evidence until tendered and admitted. Their value is frequently tested during questioning. The Tribunal is not bound by the rules of evidence.[109] And although police records may not have been substantiated in court, there is nothing preventing the Tribunal from considering them under the chapeau of ‘other conduct.’ Witnesses must be afforded procedural fairness, however, by having the records put to them for response. Procedural fairness does not require the authors of police records to be cross-examined for weight to be placed on these reports.[110]
[109] AAT Act, s 33(1)(c).
[110] Bullmore v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1106 [53], [69] (Anderson J).
On some occasions, the Applicant was unable to recall conduct attributed to him in police reports because of intoxication. Ms K and her sister were similarly unable to recall some events because of the passage of time. On other occasions the Applicant recalled and confirmed conduct attributed to him or accepted it may have occurred.
The evidence does not disclose any discernible motive for the authors of police or custodial records to have noted other than what they saw or was conveyed to them. That was substantially reinforced by the Applicant’s acceptance of certain conduct attributed to him. Moreover, there are recurringly consistent themes in the material by different authors on different days, and over a prolonged period. Nevertheless, absent agreement by the Applicant, that records not leading to charges or convictions are accurate or likely to be accurate, they must be treated with caution.
As Kenny J has pointed out, the Tribunal should treat ‘police service files’ carefully and acknowledge the ‘limits to the material before it that was said to evidence such conduct, including its cogency and reliability’.[111] Anastassiou J has similarly expressed the need for care about ‘reaching a view that criminal conduct has occurred, absent a prosecution and conviction’.[112] In the present matter, the Tribunal found the contemporaneous police and custodial records more persuasive than the Applicant’s uncertain and inconsistent recollections. Out of an abundance of caution, however, the Tribunal has only given weight to police and custodial records that either resulted in a conviction or where the Applicant conceded his involvement or likely involvement. The prejudicial impact of relying on police and custodial records that are explicitly denied and untested, or not corroborated by other probative evidence, is too great. And the Tribunal has therefore not done so.
[111] CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101, [98]-[100].
[112] QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394, [74], citing Brown v Minister for Immigration and Citizenship [2009] 112 ALD 67, [85] (Edmonds J) and echoed by the Full Court on appeal in Brown v Minister for Immigration and Citizenship [2010] 183 FCR 113, [128] (Nicholas J, with whom Moore and Rares JJ agreed).
Clause 8.1.1(1) of the Direction enables decision-makers to have regard for both criminal offending and ‘other conduct to date.’[113] The following aspects of cl 8.1.1(1) of the Direction are relevant to the specific circumstances of the Applicant’s case:
(a)8.1.1(1)(a): The Applicant’s offending against Ms K is very serious, in that it was a violent and sexual crime against a woman, within the meaning of family violence, and in the presence of a child. This includes conduct against Ms K that did not lead to police involvement, charges, or convictions, but which he agreed had occurred. The Tribunal prefers Ms K’s evidence in this regard and accepts that her reluctance to report all the Applicant’s aggression and violence against her, arose from cultural and family pressures, and concerns about their child’s wellbeing. The Applicant’s offending and other conduct against Ms K constitutes a persistent course of conduct, fueled by alcohol abuse. Its seriousness is only aggravated by the fact their child was present in the same bed when he committed sexual assault against Ms K. The child was also present at other times when the Applicant abused and made threats against Ms K and her family members.[114]
(b)8.1.1(1)(c): The Tribunal acknowledges the sentence awarded to the Applicant is well below the 20-year maximum available to the Court. That said, the imposition of a five-year sentence of imprisonment reflects the objective seriousness of his conduct.
(c)8.1.1(1)(d): There is a trend of increasing seriousness in the Applicant’s offending and other conduct during his relationship with Ms K. This includes throwing and breaking objects, slapping her, and other abusive and aggressive behaviours involving her and other family members. The Applicant was not deterred by non-custodial punishments in 2016 and his more serious offending against Ms K occurred soon after the S9 Bonds expired. This reflects an escalation in the Applicant’s conduct and a disregard for Australian law.
(d)8.1.1(1)(e): The compounding effect of the Applicant’s offending against Ms K has caused her significant emotional and psychological harm. His conduct has also imposed costs on the broader community, including through the involvement of police, courts, and the corrections service.
(e)8.1.1(1)(f): The Applicant failed to disclose his 2016 offending in his 2017 citizenship application. The Tribunal does not accept his explanations about misreading the form,[115] or failing to read it and just signing it after Ms K filled it out. The Applicant is responsible for documents lodged in his name, and the Tribunal prefers Ms K’s evidence that she did not state the Applicant had no convictions because this would have been untrue. The Tribunal finds the Applicant also submitted false information in a Statutory Declaration dated 19 December 2018.[116] The Applicant has provided false or misleading information in an official context on more than one occasion.
[113] Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 276 FCR 516, [64].
[114] Exhibit R1 378 [29]; 382 [10].
[115] Ibid 398 [15].
[116] Ibid 156-159.
The Applicant’s checking of Ms K’s telephone during their relationship and sending pictures and messages purporting to disclose infidelity to her father and other family members,[117] reflects controlling, demeaning, and manipulative behaviour. The Applicant’s persistent denial of his offending since 2017 also represents a continuing victimization of Ms K.
[117] Ibid 408 [44].
The totality of the Applicant’s offending and other misconduct is very serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Clause 8.1.2(1) of the Direction states:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

The Tribunal notes the High Court refused an application for special leave to appeal from the orders in FYBR, holding at [301]–[303] that ‘there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court’.[178]
[178]FYBR v Minister for Home Affairs and Anor [2020] HCATrans 056.
Ms Mamarot conceded this primary consideration weighed against revocation.
Tribunal findings: Expectations of the Australian community
The Applicant has lived in Australia for about eight years but offended relatively soon after arrival. He then committed a much more serious offence against Ms K, raising serious character concerns within the meaning of cl 8.4(2)(a) of the Direction. His circumstances are not such that he would be afforded a higher level of tolerance by virtue of having come to Australia at a young age or living here for most of his life. He has not obeyed Australian laws and most of his residence here has been on some form of conditional liberty, or imprisoned, or in immigration detention. Notwithstanding positive features of his application, this primary consideration weighs substantially against revocation.
OTHER CONSIDERATIONS
Tribunal Consideration: International non-refoulement obligations
The Applicant stated in his documentary evidence he did not feel safe in India[179] and explained at the first hearing this was because he could not find work if returned.[180] Ms Mamarot stated in closing submissions that non-refoulement obligations were not advanced. The Tribunal could not discern any non-refoulement claims from the available evidence, and the concerns expressed by the Applicant instead related to the extent of impediments confronting him if removed from Australia.
[179] Exhibit R1, 69 (Q14).
[180] Ibid, 365 [15]-[22].
Tribunal findings: International non-refoulement obligations
Clause 9.1 of the Direction is not enlivened and carries neutral weight.
Tribunal consideration: Extent of impediments if removed
Clause 9.2(1) of the Direction states that:
(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) The non-citizen’s age and health;
b) Whether there are substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.
There is no dispute the country of return in the event of repatriation is India. The Applicant said he last visited India in 2015. He speaks fluent Hindi, and no claims were made about language or cultural impediments. The Applicant’s submissions focussed predominantly on separation from his child, which were considered earlier under cl 8.3 of the Direction.
The Applicant said he has helped support his family in India through past work in Australia and would not be able to secure comparable work or income in India.[181] He claimed his sister’s marriage in India ended because of his offending in Australia,[182] that his mother is ‘very depressed all the time’, and his brother suffered an unexpected serious illness in January 2021. A medical record and photographs were provided about his brother’s illness and surgery in January 2021, as well as letters from the Applicant’s family referring to this issue.[183] He said that by continuing to work in Australia, he could help pay family medical bills in India and help support his brother’s family with schooling and other costs.[184] A letter from the Applicant’s mother asks that the Applicant’s visa be approved so he can seek employment and contribute to family expenses in India.[185] These submissions were not meaningfully advanced during the hearing and the Tribunal noted that no assessment is required under the Direction about comparative remuneration in Australia and India, or the Applicant’s ability to financially support other Indian citizens.
[181] Exhibit R1, 64-65; 69.
[182] Ibid 66.
[183] Ibid 346; 348-350; 353; 355-356.
[184] Ibid 333.
[185] Ibid 353.
In terms of his physical health, the Applicant stated he has ‘lower back pain’ treated with painkillers.[186] The Tribunal has considered a letter dated 5 March 2019, which states the Applicant was diagnosed with an ‘adjustment disorder and placed on Mirtazapine 45mg at night’ and had complained of ‘chronic low back pain’ for which he was prescribed Panadol and Nurofen.[187] When asked about references to an adjustment disorder at the first Tribunal hearing, the Applicant said medication was prescribed to help him sleep.[188] At the current hearing the Applicant said there is no physical or psychological condition preventing his immediate return to work and no medical or psychological condition was further advanced by him or Ms Mamarot during the hearing. Evidence from prison authorities refers to the Applicant working consistently during his imprisonment, including in labour intensive roles.
[186] Ibid 366 [44] - 367 [4].
[187] Ibid 79.
[188] Ibid 367 [26].
The Tribunal has considered Dr Kwok’s comments at paragraph 54 of her report, to the effect that the Applicant could readjust to life in India if returned, and that mental health treatment for his condition is available. The Tribunal notes, however, that the Applicant does not consider he requires mental health treatment or for any rehabilitation needs. Dr Kwok’s opinion is to the effect that if the Applicant changes his mind, he will benefit from such treatment, but could not be compelled to do so in India as would be the case in Australia.
Tribunal findings: Extent of impediments if removed
The Applicant arrived in Australia at the age of 28, having spent his formative years in India. He worked there for about a decade prior to arriving in Australia. His mother, siblings, other relatives, and friends still live there. There is no evidence that his family, to whom he remains close, are unable to provide him with practical and emotional support if returned. There are no discernible language or cultural impediments.
The Applicant has undertaken some work in Australia and acquired new skills that may have enhanced his prospects of finding suitable work in India. If unable to do so, there is no evidence he would be disentitled to the same health support available to other citizens of that country, or that health support for his diagnosed conditions is unavailable.
Notwithstanding the eight years he has spent living in Australia, which may result in a period of re-adaptation if the Applicant is returned to India, the impediments confronting him are not considered significant.
The Tribunal does not accept Dr Kwok’s opinion about Indian Government spending on health services, cost, or affordability. No evidence was tendered about health spending in India or about the Applicant’s current financial position. Having regard to the Curriculum Vitae provided by Dr Kwok, her expertise does not extend to healthcare arrangements in India. Little weight is placed on these aspects of Dr Kwok’s report.[189]
[189] Honeysett v The Queen (2014) 311 ALR 320, [21]-[24]
On balance, this consideration weighs slightly in favour of revocation.
Tribunal consideration: Impact on victims
Clause 9.3(1) of the Direction provides that the Tribunal must consider the impact of a non-revocation decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where this information is available.
This is a relatively rare case where a victim supports revocation. In doing so, however, Ms K’s evidence is conditional and almost entirely based on their child’s interests. She claimed to have forgiven the Applicant for their child’s sake, but can never forget the ‘state of mental and physical anguish’ that his conduct left her in. She has not spoken with the Applicant for approximately four years because it took her ‘years to get through that thing’. She will only ever see him again if ‘there is an urgent matter’ concerning their child.
Ms K has conditioned her claim about ‘no longer [being] afraid’ of the Applicant because of the ‘very strong support system’ around her. This includes her de facto partner and other family members. Similarly, Ms K conditioned her perceptions about the Applicant’s risk on the basis that he addresses his alcohol abuse. Importantly, support for the Applicant resuming some parental role is conditional on him remaining in Australia. Ms K feels unsafe returning to India for this purpose.
A key motivator Ms K raises about a decision in this matter is alleviating mental stress on herself after persistently lying to their child for four years about why the Applicant could not see him. There is no evidence Ms K is financially or otherwise reliant on the Applicant; but she said that if he finds work and decides to provide financial support for their child, this would be welcomed. Ms K considers the Applicant is likely to have changed his ways because of imprisonment, but her personal knowledge of this is based on hearsay. Ms K has concerns about the impact of the Applicant’s case on his and her family members in India, and it is important to her that her name and that of her sister is not included in published reasons.[190]
[190] Exhibit R1, 438 [33]-[39].
Ms K was unaware of the Applicant’s claims since 2017 that he did not offend against her, and that she had instead abused him financially and with other behaviours. The Tribunal was left with the impression that her perceptions about the Applicant’s acceptance of his conduct and rehabilitative progress during imprisonment were relatively uninformed.
Although Ms K’s parents and sister were present in the home during some of the Applicant’s offending and other unreported family violence, there was no evidence from the parents. Ms K’s sister did not make any submissions as a victim of the Applicant’s offending. She instead claimed to have little recollection about why police were called, or the effect of the Applicant’s conduct on Ms K and other family members.
Tribunal findings: Impact on victims
The Tribunal has significant concerns about the Applicant’s attitude towards Ms K as the primary victim of his offending. Notwithstanding past claims about insight and remorse, he has continued to blame Ms K and advance negative perspectives about her. In his Pre-Release Report, for example, he is recorded as describing her as dishonest, unfaithful, that she exploited him financially, and used their child in a manipulative way.
There is a concerning consistency in the evidence about the Applicant’s lack of insight about the effect of his conduct against Ms K. When regard is had to the nature of his offending and other behaviour, his denial of conduct he pleaded guilty to, the necessity for stringent supervision conditions if released, his incomplete rehabilitation, his perception he does not require further rehabilitation, undeveloped plans to resume a parental role, and the sort of stressors likely to elevate his recidivism risk, the Tribunal does not consider Ms K’s evidence as a victim is well informed or fully considered.
Ms K’s concerns as a mother about the interests of her child are understandable and were dealt with earlier. On the available facts, the Tribunal considers she remains at some risk of harm and would be the focus of any future dissatisfaction arising from the Applicant’s inability to resume the prominent parental role he expects. As the Federal Court has previously noted, just because a female victim no longer thinks she needs protection from their abuser, this is not the end of the matter.[191]
[191] Martin v Minister for Immigration and Border Protection [2017] FCA 1 [36].
The Tribunal finds that the Applicant’s violence against Ms K, his subsequent imprisonment, and its consequences, enlivened cultural pressures from members of both of their families in India, have influenced Ms K’s perspectives. This is particularly evident during the time he offended against her, when family members counselled her not to proceed with complaints. Ms K has referred to ‘pressure from everyone…culture wise,’ and said she was even blamed for the breakdown of the Applicant’s sister’s marriage in India, purportedly because of the shame of his imprisonment. As Ms K stated at the first Tribunal hearing, she, and her family in India ‘have to answer…to the people over there [for] what happened…it’s stigma for them’.[192] After considering Ms K’s reasons for wanting the Applicant to remain in Australia, against other factors like the potential risk of harm, the evidence is such that the Tribunal finds this consideration weighs neutrally at best.
[192] Exhibit R1, 436 [25]-[26].
Tribunal consideration: Links to the Australian community
Clause 9.4 of the Direction provides that decision-makers must, reflecting on the principles at cl 5.2, have regard to cl 9.4.1 relating to the ‘Strength, nature and duration of ties to Australia,’ and cl 9.4.2 relating to ‘Impact on Australian business interests.’ There is no evidence that a decision in this matter risks compromising the delivery of a major project or an important service in Australia. It follows that the presumption in the Direction is not displaced and cl 9.4.2 of the Direction is of neutral weight.
Tribunal consideration: Strength, nature, and duration of ties
Clause 9.4.1 of the Direction states:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community. In doing so, decision-makers must have regard to:
(a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant has lived in Australia for approximately eight years. He claimed to have started work in 2016 and was employed for about six months before suffering a workplace injury.[193] He then claimed to have worked at another farm in 2017. No evidence was provided to corroborate this work history.
[193] Exhibit A1, [16].
Apart from his child the Applicant has no immediate family in Australia.[194] He referred in documentary evidence to a sister-in-law living in Australia,[195] but she is no longer his sister-in-law after the divorce with Ms K. The Tribunal has considered an undated letter from this former sister-in-law, in which she claims to be a permanent resident of Australia. The letter refers to the Applicant as a ‘good man and a good father’. The Tribunal has also summarised her oral evidence earlier. Little weight is placed on the Applicant’s relationship with his former sister-in-law, because she perceives her role solely as helping to facilitate visits between the Applicant and his child, consistent with what Ms K agrees to.
[194] Exhibit R1, 65.
[195] Ibid.
The Applicant’s closest connection to Australia is with his child, which the Tribunal has considered under Best interests of children in Australia. He previously had a close connection to Ms K, which ended in divorce. Ms K has another partner, and her support of the Applicant is solely in the context of the interests of their child.
In a pre-release report from prison authorities, it states that apart from a friend he intended to live with if released, the Applicant told them ‘he has no other supports in Australia’.[196] The circumstances at this friend’s house were subsequently assessed as ‘inadequate to mitigate the risk factors associated with the Applicant’, and it was not approved as a post-parole address.[197] The Applicant intends moving in with the same friend at a different address in a small regional town of less than 100 residents. The Tribunal has previously considered the documentary and oral evidence of this friend.[198] It remains uncertain, however, whether parole authorities will approve this new address as a resettlement location for the Applicant. The Applicant advised those compiling his pre-release report that ‘he has no other supports in Australia and would be reliant upon assistance provided by CSNSW’.[199]
[196] Ibid 288; 297.
[197] Ibid 288; 293.
[198] Ibid 357; Exhibit A3.
[199] Exhibit R1, 293.
The Applicant stated he was a member of a Rotary Club, made unspecified donations, helped ‘elder people,’ and volunteered at an Indian temple.[200] No evidence was provided to corroborate these claims from the organisations or individual recipients of this claimed contribution. His evidence about this at the first Tribunal hearing was opaque at best.[201]
[200] Ibid 68.
[201] Ibid 366 [20]-[42].
Tribunal findings: Strength, nature, and duration of ties
The Applicant’s offending started relatively soon after he arrived in Australia. Evidence about his positive contribution to the community is scant. Despite no corroborating evidence about his work history, the Tribunal accepts he has undertaken some remunerative work and paid some taxes. Most of his time in Australia has been spent on some form of conditional liberty, being imprisoned, or in immigration detention. The time he has spent at complete liberty in the community is relatively brief.
Following the Applicant’s divorce from Ms K, his ties to Australia are even more limited. There is no evidence the impact on the close friend he intends moving in with would be anything other than emotional. They both have common interests with family and friends in India, and there is no evidence their relationship could not continue as it has in the past, through telephone calls and infrequent visits.
On balance, this consideration weighs slightly in favour of revocation.
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Applicant does not pass the character test. In determining if there is ‘another reason’ why the mandatory cancellation of his visa should be revoked, the Tribunal has applied the Direction to the specific circumstances of his case. The Tribunal does not consider it necessary to depart from the guidance in the Direction that greater weight ‘should generally be given’ to the primary considerations.
The Applicant’s offending and other objectionable conduct since arriving in Australia is very serious and centres on repeat family violence against Ms K. His persistent denial of offending that he pleaded guilty to, efforts to blame Ms K, and presentation of himself as a victim, is of concern. This represents a continuing victimisation of Ms K, accentuating the serious violation of her dignity and the deep psychological harm he inflicted.
Given the inconsistencies in the Applicant’s evidence and unreliability of his past erroneous claims about being a changed man, the Tribunal places little weight on his latest assurances about insight and reform. His use of illicit drugs while imprisoned, unmet rehabilitation needs, and belief that he does not require further rehabilitation, only exacerbates the Tribunal’s concerns. The Tribunal is unpersuaded that the Applicant’s recidivism risk is ameliorated to an acceptable level since claiming (again) to be a completely changed man since the first quarter of 2021.

The Applicant’s conduct since arriving in Australia reflects serious breaches of the privilege afforded to non-citizens to enter and remain here. He has not been law-abiding, nor respected important institutions like the courts. His criminal conduct raises serious character concerns within the meaning of cl 8.4(2)(a) of the Direction and he should expect to forfeit the privilege of staying in Australia.
As explained earlier, the Tribunal cautiously accepts the Applicant’s biological child would be adversely affected by losing close contact with the Applicant, potentially for the next decade until reaching adulthood. On balance, revocation is in the child’s best interests, noting the conditional assumptions on which that finding is based.
After living in Australia for approximately eight years, albeit most of it under some form of conditional liberty, imprisonment or immigration detention, the Tribunal accepts the Applicant is likely to experience a period of re-adaptation in resuming his life in India. That said, all his family and most of his other closest associations are there. Any impediments are relatively slight and there is no evidence he would be treated differently to other citizens or could not count on his family and friendship networks for practical and emotional support.
Having weighed all relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the decision to cancel the Applicant’s visa should be revoked. That is because three of the primary considerations in this matter weigh substantially against revocation. These considerably outweigh the combined weight given to the primary consideration Best interests of children, which weighs moderately in favour of revocation, and the other countervailing considerations, which each carry slight weight.
DECISION
It follows that the Tribunal affirms the decision under review.

I certify that the preceding 200 (two hundred) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

……………[sgd]…………………….
Associate
Dated: 5 May 2022

Date of hearing: 23-25 March 2022

Advocate for the Applicant:

Solicitors for the Applicant:

Ms Marta Mamarot

South West Migration and Legal Services

Advocate for the Respondent: Mr Jamie Watts

Solicitors for the Respondent: Australian Government Solicitor

Date of hearing:	23-25 March 2022
Advocate for the Applicant: Solicitors for the Applicant:	Ms Marta Mamarot South West Migration and Legal Services
Advocate for the Respondent:	Mr Jamie Watts
Solicitors for the Respondent:	Australian Government Solicitor