PGDX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2021] AATA 339

PGDX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 339 (26 February 2021)

Division:GENERAL DIVISION

File Number(s):      2020/8340

Re:PGDX

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:26 February 2021

Place:Sydney

The decision under review is affirmed.

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

Chris Puplick AM, Senior Member

CATCHWORDS

MIGRATION – mandatory cancellation of visa – failure to pass character test – substantial criminal record – whether there is another reason for the mandatory cancellation to be revoked – Direction no. 79 – primary considerations – protection of the Australian community – the best interests of minor children – expectations of the Australian community – other considerations – strength, nature and duration of ties – impact on victims – extent of impediments if removed – weighing of primary and other considerations – reviewable decision is affirmed

LEGISLATION

Crimes (Sentencing Procedure) Act 1999 (NSW) s 9

Migration Act 1958 (Cth) ss 499, 501, 501CA

Minister for Immigration, Citizenship and Multicultural Affairs, Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (20 December 2018) cls 6, 8, pt C

CASES

Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123

BFXK and Minister for Immigration and Border Protection (Migration) [2018] AATA 886

CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858

Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47

FCFY v Minister for Home Affairs [2019] FCA 1222

FYBR v Minister for Home Affairs [2019] FCAFC 185

Hands v Minister for Immigration and Border Protection [2018] FCAFC 225

Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464

Minister for Home Affairs v HSKJ [2018] FCAFC 217

Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649

Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575

Minister for Immigration and Multicultural Affairs v SRT (1999] 56 ALD 349

Okoh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 84

PQSM v Minister for Home Affairs [2019] FCA 1540

Shi v Migration Agents Registration Authority [2008] HCA 31

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

Uelese v Minister for Immigration and Border Protection [2016] FCA 348

XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 323

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

REASONS FOR DECISION

Chris Puplick AM, Senior Member

26 February 2021

BACKGROUND TO APPLICATION

1. PGDX (Applicant) is a citizen of the Republic of India. He is now 36 years of age. He first arrived in Australia on 14 September 2013[1] and until 5 February 2019 he was the holder of a Regional Sponsored Migration Scheme (class RN subclass 187) visa.

   [1] Section 501G documents (G documents) at 59 and 112.

2. That visa was subject to mandatory cancellation (original decision) under section 501(3A) of the Migration Act 1958 (Cth) (Act) which provides:

   (3A) The Minister must cancel a visa that has been granted to a person if:

   (a) the Minister is satisfied that the person does not pass the character test because of the operation of:

   (i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

   … and

   (b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

3. The Act then provides (at section 501CA(3)) that a person whose visa has been subject to mandatory cancellation is to be invited to make representations to the Minister (Respondent) seeking a revocation of the mandatory visa cancellation. The visa cancellation may then be revoked under section 501CA(4):

   (4) The Minister may revoke the original decision if:

   (a) the person makes representations in accordance with the invitation; and

   (b) the Minister is satisfied:

   (i) that the person passes the character test (as defined by section 501); or

   (ii) that there is another reason why the original decision should be revoked.

4. The Applicant sought revocation on 18 February 2019 and subsequently made representations. These were considered by the Minister’s delegate who, on 7 December 2020, denied the request for revocation (non-revocation decision).

5. The delegate found that the Applicant, by definition, failed the “character test” as set out in section 501 because, on 8 May 2018, he was convicted of a certain offence and sentenced to a term of imprisonment of five years. The relevant provisions in section 501 provide:

   Character test

   (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))

   …

   Substantial criminal record

   (7) For the purposes of the character test, a person has a substantial criminal record if:

   …

   (c) the person has been sentenced to a term of imprisonment of 12 months or more;

6. The delegate also found that there was not “another reason why the original decision should be revoked”.[2]

   [2] G documents at 7-23.

7. On 16 December 2020 the Applicant applied to this Tribunal for a review of the non-revocation decision and the matter was heard by the Tribunal on 15 and 16 February 2021. The hearing was conducted by videoconference using the Microsoft Teams platform in accordance with the Tribunal’s COVID-19 and remote hearing protocols. The Applicant appeared from Christmas Island Immigration Detention Centre and was assisted by an interpreter in the Hindi language. The Tribunal also commenced the hearing later in the day to accommodate the 4-hour time difference with Christmas Island.

   MATTERS FOR REVIEW

8. An original decision to cancel a visa may be revoked, as noted above, only on one of two grounds, namely the decision-maker (in this instance, the Tribunal) finds that an applicant passes the character test or that there is “another reason” to do so.

9. Given the Applicant’s conviction of May 2018 there is no dispute that he fails the character test. The question for the Tribunal then becomes one of determining whether there is “another reason” for revocation.

   “ANOTHER REASON” FOR REVOCATION

10. Section 499 of the Act provides that:

    Minister may give directions

    (1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

    (a) the performance of those functions; or

    (b) the exercise of those powers.

    …

    (2A) A person or body must comply with a direction under subsection (1).

11. The relevant direction with which the Tribunal must comply is ministerial Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction) made on 20 December 2018 and effective as from 28 February 2019.

12. Direction no. 79 provides that decision-making is to be approached within the framework of the principles in paragraph 6.3 of the Direction (Principles).

13. The Federal Court of Australia has noted very recently that:

    … The Minister’s requirements set out in the Direction are important matters which not only create legal requirements for the fulfilment of the obligation in s 501CA(4), but compliance with them also provides for consistency in the administration of the Act.[3]

    [3] Okoh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 84, [2].

14. Guided by these Principles, the decision-maker must take into account the “primary considerations”, in Part C of Direction no. 79, in deciding whether to revoke a mandatory visa cancellation.

15. The primary considerations are listed as:

    (a)protection of the Australian community from criminal and other serious conduct;

    (b)the best interests of minor children in Australia; and

    (c)expectations of the Australian community.

16. The decision-maker must also take into account “other considerations” some of which may be relevant and others potentially not. These include (but are not limited to):[4]

    (a)international non-refoulement obligations;

    (b)strength, nature and duration of ties;

    (c)impact on Australian business interests;

    (d)impact on victims; and

    (e)extent of impediments if removed.

    [4] The parenthetical phrase “but are not limited to” appears in Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (20 December 2018) (Direction no. 79).

17. The Tribunal is required to consider each issue in turn. However, it is important to emphasise two other aspects of the deliberative process:

    ·While the Tribunal must be guided by the Direction and give effect to its provisions and requirements, when considering the totality of the evidence, “[t]he choice of, and weight given to, the material before the Tribunal is a matter for it”[5] and “[t]he Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances”.[6]

    ·Although some considerations are listed as “primary” and others as “other” in the Direction, this is not to be taken to imply that “primary” considerations necessarily carry more weight or authority than “other” considerations[7] and, indeed, the combined weight of “other” considerations may overbear those designated as “primary”.[8]

    [5] Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123, [45] per Spender, Moore and Foster JJ.

    [6] Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464, [27] per French J.

    [7] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, [23]-[26] per Colvin J; PQSM v Minister for Home Affairs [2019] FCA 1540, [51] per Colvin J; Minister for Home Affairs v HSKJ [2018] FCAFC 217, [24] and [37] per Greenwood, McKerracher and Burley JJ.

    [8] FCFY v Minister for Home Affairs [2019] FCA 1222, [50] per Thawley J; CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858, [88].

18. The Tribunal also takes note of the recent characterisation of these criteria by the Federal Court:

    Broadly speaking, paragraph 8(3) of the Direction provides that both primary and other considerations may weigh in favour of, or against, whether to revoke a mandatory cancellation of a visa. In considering the Direction as a whole, it is clear that certain considerations – such as the protection of the Australian community from criminal conduct, the expectations of the Australian community, and the impact on victims – are intended to generally weigh against revoking the cancellation of an applicant’s visa, while others – such as international non-refoulement obligations and the extent of impediments if removed – are intended to generally weigh in favour of revoking the cancellation of an applicant’s visa. On a common sense approach, the strength, nature and duration of the applicant’s ties to Australia (i.e. para 14.2 as a whole) is a consideration which generally falls into the latter category. On a similar approach, the family ties sub-consideration may generally be placed in the same category.[9]

    [9] Okoh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 84, [30]. Emphasis in original.

    RELEVANT FAMILY HISTORY

19. The Applicant was married to his now ex-wife (Ex-wife) in February 2012 in Gujarat, India.[10] He told the Tribunal that this was a marriage based on the couple being in love and was not an arranged or forced marriage.[11] The Applicant and his wife were divorced in August 2018.[12]

    [10] G documents at 95.

    [11] Transcript dated 15 February 2021 (15 February transcript) at 16 [3]-[7].

    [12] G documents at 98-99.

20. The Applicant’s ex-wife first arrived in Australia on a student visa in 2008 and returned to India in 2012 where she married the Applicant. They had originally met on a social media platform.[13] She returned to Australia in about April 2012 while the Applicant remained in India awaiting approval of his visa application. The Applicant’s ex-wife returned to India several times before his visa approval was granted. In 2015 she was granted permanent residency and became an Australian citizen in 2018, at which time Australian citizenship was granted to her son.[14]

    [13] Transcript dated 16 February 2021 (16 February transcript) at 76 [25]-[28].

    [14] Ibid 76 [47] – 77 [10].

21. The Applicant arrived in Australia from India on 14 September 2013 and remained here until he returned to India with his son (Child S) (who was born in Australia on 9 December 2013[15]) on 14 February 2015. The Applicant then returned to Australia on 9 August 2015. The then-couple made their home in Griffith, NSW.

    [15] G documents at 95.

22. It appears that from the time of the birth of Child S the Applicant was the primary carer for his son as his now ex-wife went back to work after the birth of their child. The Applicant took his son back to India (his now ex-wife remained in Australia[16]) when his then-visa expired. While in India Child S became ill and it took some time for him to recover. Nevertheless, while in India the Applicant spent time with his family and his son “was playing with my brothers (sic) kids and my sisters (sic) kids, living as a joint family”.[17]

    [16] Ibid 71.

    [17] Ibid 73.

23. After being granted another visa the Applicant returned to Australia with his son for whom he provided primary care for 4 months until his mother and father-in-law came from India to look after the child. The Applicant was then employed at a chicken farm in Griffith until he suffered a workplace accident some 8 months later. The Applicant then, again, resumed primary care for his son for the next 4 months after which his now ex-wife’s parents returned home to India. His carer role continued for the rest of that year.

24. Six months later (approximately June/July 2017) his ex-wife’s parents returned to Australia and at this stage the couple separated, with Child S living with his mother. The Applicant obtained employment tending wine grapes at a local farm.[18]

    [18] Ibid.

25. It appears that at some stage the Applicant and his then-wife got back together, by way of irregular periods of cohabiting. In respect of these arrangements the Applicant states:

    My wife and I got back together mostly for the benefit of my son …

    …

    After I got back together with my wife (because of my son) I noticed changes in my son.[19]

    [19] Ibid.

26. The Applicant is one of four children. All his immediate family members remain in India. His father passed away in 2000[20] and his brother has recently suffered a major health incident and is currently severely incapacitated.[21]

    [20] Respondent’s supplementary tender bundle (Supplementary tender bundle) at 109.

    [21] Statement of PGDX filed 5 February 2021; Medical report about Applicant’s brother by Dr Panchal dated 23 January 2021.

27. There is some contradictory evidence about the Applicant’s qualifications and previous employment history. He told the NSW Department of Corrective Services that “he completed a draftsman qualification and was employed as an architect in India”,[22] further that he had “completed a Diploma in Civil Engineering in India”,[23] and he listed his occupation as “draughtsman civil” in his citizenship application.[24] In evidence to the Tribunal he stated that he had started some of these courses of study but never completed them,[25] and that he had no relevant professional qualifications in any of these fields. In evidence he stated:

    MS NG:[26] Right. I think your son’s birth certificate says civil engineer, so that’s wrong, is it?

    INTERPRETER: The reason for that is that at the time of the birth of my son, my wife’s medical situation was very bad and my friend was at the hospital and he might have made the mistake of saying that my profession is a civil engineer.

    MS NG: Right. So what it should say is that you were a civil servant?

    INTERPRETER: I used to work in the office of the architect, and it used to involve planning and planning of building so I just – if I do any house planning or building planning – so it’s planning of houses.[27]

    THE APPLICANT’S OFFENCES/ CONVICTIONS/ BEHAVIOUR

    [22] Supplementary tender bundle at 109.

    [23] Ibid 118.

    [24] Ibid 154.

    [25] 16 February transcript at 68 [27]-[35].

    [26] Respondent’s legal representative.

    [27] 15 February transcript at 7 [14]-[26].

    Offence leading to imprisonment

28. On 8 May 2018 the Applicant appeared before the District Court of New South Wales in Griffith charged with Aggravated sex assault – break and enter with intent (DV).

29. The judge on sentencing, Judge Payne, stated:

    … [PGDX] comes before the Court in respect of one offence. That offence is contrary to s 61J(1) Crimes Act 1900. The offence is that he, on 17 November 2017, at Griffith in the State of New South Wales, did have sexual intercourse with [the Ex-wife] without her consent, and knowing that she was not consenting to the sexual intercourse, in circumstances of aggravation, to wit, the said [PGDX] breaks and enters dwelling house with the intention of committing the offence. He was arrested on 17 November 2017.

    He pleaded guilty in the Local Court on 11 April 2018, that being the Griffith Local Court. The matter came on for sentence today. He adhered to his plea of guilty and at all times the defence were committed to the matter proceeding as soon as possible. I convict him of this offence.[28]

    [28] G documents at 30.

30. Her Honour described the circumstances of the offence as follows:

    Sometime after midnight on Friday 17 November 2017, the prisoner attended yy Place. He entered the rear yard of the premises after opening a gate and approached the ensuite bathroom window to the master bedroom. He removed the flyscreen and slid open the slightly open window. He then entered the bedroom where the victim and the son were sleeping. The victim and son were sleeping on top of the bed covered by a sheet and a blanket, and the prisoner climbed on top of the victim who was sleeping on her back. The victim opened her eyes and observed the prisoner lying on top of her. The victim had both her knees together and the prisoner’s head in front of hers. The victim stated that she did not want to have any relations with the prisoner. The prisoner said, "This is the last time." The victim stated, "Please, no. Leave me alone."

    The prisoner used both his hands to hold the victim's hands above her head. The prisoner had his body weight on top of the victim which restricted the victim's movement. The prisoner then held both the victim's hands using his right hand and placed his left hand under the nightdress and began removing the victim's underwear using his left hand. The victim said, "Stop. I don't want to do this." The victim attempts to kick out the prisoner, however his body weight prevented her from doing so.

    The prisoner removed the victim's underwear and began removing his pants. The prisoner moved the victim's legs apart using his left hand and placing his legs in between hers. The prisoner inserted his penis inside the victim's vagina and moved his penis backwards and forwards. This continued for approximately two to three minutes before the prisoner ejaculated inside the victim.

    The prisoner left the bedroom and exited the premises via the front door and shortly after she attended Griffith Police Station.[29]

    [29] Ibid 32-33.

31. In passing sentence Her Honour observed:

    The maximum penalty prescribed is imprisonment for 20 years. The standard non-parole period is ten years. He is entitled to a reduction of 25 percent for utilitarian considerations only. In addition, I am firmly of the view he is contrite and remorseful for his offending behaviour and is entitled to the mitigating factor found in s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999.[30]

    …

    It was accepted by both sides of the bar table that the prisoner made significant admissions in the interview. He also, by his plea, accepted he entered the dwelling house with the intention of committing sexual intercourse without consent. This is a significant matter. The defence submitted that the offending was well below the midrange. The Crown submitted it was below the midrange. In my view it is certainly below the midrange.

    His record is one which in my view does not disentitle him to leniency. I say this even though he has two offences, charge date 11 March 2016, court date 13 April 2016, stalk/intimidate and contravene prohibition in apprehended violence order (domestic). He received s 9 bonds for 18 months. This offending was described by the Crown as involving drunken rants. The bonds would have expired on 12 October 2017, before the present offence. The date of the present offence was 17 November 2017. In my view, he has good prospects for rehabilitation, and on the balance of probabilities it is unlikely he will re-offend.[31]

    [30] G documents at 30.

    [31] Ibid 34.

1. Her Honour then sentenced the Applicant to a term of imprisonment of 5 years with a non-parole period of two and half years (expiring on 16 May 2020).[32]

   [32] Ibid 35.

2. It is necessary to examine in some more depth the sequence of events before the Court which led to the commission of the sexual assault offence. According to the statement of Agreed Facts, the couple attended Griffith Police Station at approximately 4:15 pm on 16 November 2017 in order to have a Justice of the Peace witness their signature on their divorce papers.[33]

   [33] Supplementary tender bundle at 151.

3. After this, around 4:45 pm, the Applicant went to his now ex-wife’s house where he collected their son. The Applicant took Child S to his own home where the child remained with him until approximately 6:30 pm.

4. The Agreed Facts state that, at that time, the Applicant’s wife went to his home and collected their son, returning with Child S to her residence. The Applicant disputes this and claims that he delivered his son to his now ex-wife’s home rather than her collecting their son and that, at the same time, he had given her $600.[34]

   [34] Applicant’s Statement dated 3 November 2020: G documents at 76.

5. The Applicant then states that he told his now ex-wife that “I am coming tonight she say ok”[35] and he told the Tribunal that he sent text messages to her to this effect.[36] He next states that she brought him food to his home at 7:30 pm and that he had told her at that time, and also messaged and attempted to call her prior to attending her residence, that he would be going to her home sometime later.

   [35] Ibid.

   [36] 15 February transcript at 32 [1]-[5].

6. The Applicant’s now ex-wife does not appear to have prepared for the Applicant’s late night visit as the Agreed Facts state that she arranged for her son to have a shower and for her to go to bed at approximately 9.30 pm.[37]

   [37] Supplementary tender bundle at 151.

7. Sometime after midnight the Applicant entered his now ex-wife’s house via a bathroom window and committed the sexual assault as outlined in Her Honour’s sentencing remarks. However, the Applicant claims that when he entered the bedroom he did not immediately “climb on top of the victim who was sleeping”[38] but rather that he woke her and they had a conversation for some 30 minutes before he asked her to have intercourse with him, which she refused, at least twice, before he forced himself upon her.

   [38] Ibid.

8. The reference to this “30 minute conversation” is contained in the sentencing Judge’s remarks[39] which are clearly based upon the material in the Agreed Facts.[40] In a statement of the Applicant dated 3 November 2020, he reports a slightly different version of the event which was that “30min I sleep with my son and she know I am coming when she wake up I start talk with her”.[41]

   [39] G documents at 33.

   [40] Supplementary tender bundle at 152.

   [41] G documents at 76.

9. Neither the Applicant nor his wife gave sworn testimony in Court. However, in her sworn testimony to the Tribunal the Applicant’s now ex-wife outright denied that this conversation had taken place:

   SENIOR MEMBER: … PGDX asked you to be intimate with him, and you refused, but he insisted, and he was intimate with you. Now, before that happened, did you have a conversation with PGDX that lasted for some 20 or 30 minutes?

   EX-WIFE: No, I did not have conversation with him.[42]

   [42] 16 February transcript at 78 [17]-[20].

10. It should be noted that the minor child (then aged approximately 3 ½ years) was sleeping in the same bed as his mother when the Applicant entered the bedroom and committed the offence.[43]

    [43] G documents at 34; Supplementary tender bundle at 152.

11. After the sexual assault had occurred, the sentencing Judge noted that “[t]he prisoner left the bedroom and exited the premises via the front door …”.[44] In the Agreed Facts it is also stated that “[w]hilst [the victim was] in the bathroom, the accused checked the victim’s mobile phone and located some text messages between the victim and the victim’s boyfriend [KA]. The accused left the bedroom and exited the premises via the front door”.[45]

    [44] G documents at 33.

    [45] Supplementary tender bundle at 152.

12. The Applicant commented during the hearing that:

    After that particular incident, when I looked at her phone I saw the message between her and her boyfriend. I have taken a picture of that and I have sent it to her father.[46]

    [46] 16 February transcript at 51 [42]-[44].

13. Prior to this matter coming to Court, on 10 December 2017:

    arrangements were previously made to have the victim’s sister … attend Griffith Police Station regarding a statement. OIC met with the victim and … only. They advised that … is not willing to assist in making a statement. There is mounting pressure from family members from both sides over in India to have the matter withdrawn … The victim explained there is pressure from her parents to have her withdraw the charges.[47]

    [47] Supplementary tender bundle at 39.

14. The police explained to the Ex-wife that “this is a very serious matter and one of a domestic violence related matter and under no circumstances that the charges against [PGDX] will be withdrawn”.[48]

    [48] Supplementary tender bundle at 39.

    Applicant’s other convicted offences

15. It has to be noted that this was not the first occasion in which the Applicant had been before a court. On 13 April 2016 he appeared in the Local Court in Griffith before a Magistrate in relation to the two offences of Stalk/ intimidate intend fear physical etc harm (domestic) and Contravene prohibition/ restriction in AVO (domestic).[49] The breach of the AVO appears to have taken place on 10 March 2016.[50]

    [49] G documents at 36.

    [50] The Police report is confusing in that it contains references to both 10 March 2016 and 3 March 2016: Supplementary tender bundle at 40-41. The relevant sentencing remarks confirm the date to be 10 March 2016: G documents at 37.

16. The details of the Apprehended Violence Order (AVO) in question are not before the Tribunal but appear to have been subject to amendment at some stage.[51] There is a reference to their purported contents in one of the NSW Police Records of Events submitted in evidence.[52] It appears that the AVO was made, on the initiative of the police, on 28 October 2015 and was valid until 27 October 2016.

    [51] Supplementary tender bundle at 41.

    [52] Ibid 40.

17. In submissions to the Magistrate, the Applicant’s representative stated:

    Your Honour he’s entered pleas of guilty today your Honour. In relation to the breach of AVO, he indicates that he had an overwhelming desire to see his son. That’s why he was there and he should’ve abided by the conditions of his AVO. He’s aware of that now. If he hasn’t been in the past he certainly is now.

    In relation to the intimidation your Honour, he indicates he was angry and depressed at the time and was obviously affected by intoxicating liquor. He regrets what he did that particular day.

    He’s come before the Court at the earliest possible opportunity to enter a plea of guilty and by doing so I’d suggest your Honour he expresses some contrition for the matters that brought him before the Court.[53]

    [53] G documents at 37.

18. Her Honour convicted the Applicant and imposed two section 9 good behaviour bonds[54] for a period of 18 months, and warned the Applicant of the consequences of breaching those bonds. Her Honour noted:

    … The defendant has pleaded guilty to two charges, one of contravene AVO, the other of intimidation. On 10 March he visited the family home while he was intoxicated which was a breach of his order. He then began to verbally abuse the members of his family making offensive comments about them. He also made threats that if police were called he would kill his family members. His family members were intimidated by the conduct and called police.

    When police arrived they observed that the defendant was well affected by alcohol.

    The offence is a serious offence being a breach of an order of the Court. The breach was conduct which the order was designed to protect the victims from.

    The defendant has been in Australia since 2013 and I note this is the first time that he has appeared at court. He has no matters of a similar kind on his record.

    He has entered his plea of guilty today at the earliest opportunity. He has spared the community the cost of a hearing and he has spared his family the upset of coming to court to give evidence. Both those things tell me that the defendant is remorseful for his conduct.[55]

    [54] Crimes (Sentencing Procedure) Act 1999 (NSW).

    [55] G documents at 37-38.

19. Whilst under the influence of alcohol the Applicant verbally abused members of his now ex-wife’s family. He told her and her family that “they were all prostitutes and that they were illegal immigrants who should get out of his country”.[56] He made verbal threats to kill members of the family in Australia and India and then kill himself.[57] There were no acts of violence committed and, in this case, the Tribunal accepts that the threats of violence were not in any way to be taken seriously.

    [56] Supplementary tender bundle at 40.

    [57] Ibid 40-41.

20. When the Applicant was before the Local Court on 13 April 2016 and the good behaviour bonds were imposed, a new AVO was also issued effective for the following 12 months. It appears that the Magistrate included an additional order to the AVO that previously existed, specifically being the Applicant “must not enter premises where [the protected persons] reside from time to time”.[58]

    [58] G documents at 38.

21. As a result of this incident the AVO was “varied at the request of the victims, the Accused is no longer to reside at [the family home]”.[59]

    [59] Supplementary tender bundle at 41.

    Background and details of prior incident

22. The incident involving the Applicant took place on 8 October 2015 and is noted in a NSW Police Record of Events.[60] It occurred at the then-family home where the police were called after the Applicant assaulted his now ex-wife by slapping her twice across the face “after a dispute over food”. As her parents intervened to try to stop the Applicant, they also became involved in a physical fight with the Applicant. The Applicant’s now ex-wife said to the police that “[h]e hit me, and everyone even his baby”. She also informed the police that she “had been assaulted in the past without reporting to police”. The police report goes on to record that “She [the Ex-wife] states these assaults were slaps from her husband for her doing wrong by him”. The Ex-wife explained that for family reasons she did not want her husband charged but rather just warned, and she declined to provide a statement to the police.

    [60] Ibid 42-43.

23. In his evidence to the Tribunal the Applicant stated that he had no recall of ever having hit any of the family members.[61]

    [61] 15 February transcript 19 [26]-[27].

24. During the course of this incident damage was done to a mobile phone. The Ex-wife told police this was done by the Applicant, but he said that the damage was done by his father-in-law who “planted” the damaged phone as evidence against him. The Applicant also told police that it was the family members who assaulted him when he threatened to “dob his fathers (sic) family into immigration”.

25. The Applicant’s now ex-wife claims that the Applicant was “drunk” at the time whereas he claims “he was not affected by alcohol, and when the police arrived at the location he was outside the front waiting for them.” He said to the police: “Please arrest me, please”. The police however, in their own observations, state that “[t]he defendant was intoxicated when arrested by police. This was evident by his speech and the smell of liquor on his breath”.[62]

    [62] Supplementary tender bundle at 43.

26. The police report notes the Ex-wife’s belief that “if police charge the defendant it will wreck there (sic) relationship and be bad for their family. She only has fears when the defendant has been drinking. Stating that he is a great man when he does not drink”.

27. The police report also notes “[t]he defendant is being treated for depression and is drinking excessively to help him quit smoking. He is regularly engaging with his GP regarding these issues”.

28. Whilst the police recorded that there was not sufficient evidence to support a charge of assault or malicious damage against the Applicant, they “firmly believe there is sufficient evidence to support a Provisional order being applied for”. It appears this incident resulted in the police taking out the AVO of 28 October 2015.[63]

    [63] Supplementary tender bundle at 40.

29. In another police report, it is noted that the police visited the family home of the Ex-Wife for a follow-up on 12 October 2015 where “[t]he victim informed police that things were much better since the night in question and thanked police for their assistance. The POI [the Applicant] was present and not under the influence of alcohol, he was also thankful towards police”.[64]

    [64] Ibid 43.

    Behaviour in custody/ detention

30. The Applicant committed a number of minor breaches of discipline while in either custodial care or immigration detention. These included being found in possession of tobacco[65] and on two occasions failing urinalysis (buprenorphine and cannabis metabolite).[66]

    [65] Ibid 46.

    [66] Ibid 59.

31. The Tribunal does not place any significant weight on these matters as subsequent urinalysis test returned negative results and the general reports on the Applicant’s conduct refer to his “excellent work ethic and follows all policies and procedures. he is always polite to staff and fellow team members”.[67]

    [67] Ibid 115.

32. While in detention the Applicant completed a number of courses dealing with drug and alcohol abuse, stress management, anger management and depression management.[68] When questioned about these courses by the Respondent the Applicant showed a keen awareness of the lessons to be learned from them and a robust understanding of the material with which he had been confronted in the learning process.[69]

    [68] Certificate of course completion: Drug and alcohol abuse 101 at Universal Class dated 25 December 2020; Certificate of course completion: Stress management at Universal Class dated 14 December 2020; Certificate of course completion: Anger management 101 at Universal Class dated 7 August 2020; Certificate of course completion: Depression management 101 at Universal Class dated 14 December 2020.

    [69] 16 February transcript 64 [31] – 65 [44].

    APPLICANT’S SUBMISSIONS ON REVOCATION

33. Before turning to a consideration of the matters outlined in Direction no. 79 it is appropriate to record that the Applicant has set out in brief his reasons for requesting revocation as follows:

    1) I have been too close to my son [Child S] ever since his birth in Australia as I was the only person to take care of my ex-wife and child, thus we love each other very much.

    2) lnitially, when my Temporary visa expired and I had to return to India, my son who accompanied me, lived with me at my ancestral house in lndia till we were granted Australian P.R. and returned for a family reunion.

    3) When I met with an accident and suffered a foot injury, I had to remain away from work when I looked after my child son.

    4) Over time, I have had a great bond with my son. whom quite often I would take him out. buy foods, toffees and toys.

    5) I have been in touch with my son on phone as permitted by the authority during my imprisonment, and been told he is missing me all the while and asking when I would come, to which I would say I go to work and come soon. Also, when he asks his grandmother she would give false or evasive reply. Unsatisfied, he remains confused and bewildered. It has shown up in his physic, psyche, health, appetite, growth and desire for playing, and remain attached to tablet.

    6) During our maiden reunion with my son recently, we cried and cried, and it was a difficult moment to part.

    7) It was an unfortunate moment I committed the act under influence of alcohol which I repent for and regret very much.

    8) I have learnt a lesson of life and do have a remorse; I shall serve my sentence lawfully and obediently because I wish to have an occasional glimpse of my beloved son growing up here and help him for his wellness as much as I could.

    9) I do swear, I would reform myself, do no harm to anyone In any way, live a peaceful life and abide by the Laws of this Nation.

    In light of the above, I plead the exalted offices of Honorable Minister of the Government with a REQUEST FOR REVOCATION OF MY VISA CANCELLATION … taking into consideration my love and attachment with my son and his well-being.[70]

    [70] G documents at 53.

34. Throughout his oral evidence to the Tribunal, and under cross-examination by both the Respondent and the Tribunal, the Applicant returned at every time to his commitment to his son and his belief that his son needed him to play a meaningful role in his life. He previously discussed the loss of his own father at a young age[71] and pleaded with the Tribunal not to “separate” him from his son. He expressed the depths of his emotions saying that “I just can’t [live] (scil) without my son”.[72]

    [71] Ibid 74.

    [72] 15 February transcript at 6 [14]. The transcript states “leave” instead of “live“ and is in error.

35. The Applicant also made repeated statements to the effect that he took responsibility for his “mistake” and that, having learned his lesson, there was no chance that he would ever repeat any of his offending behaviour. He also stated that he had stopped the use of alcohol or drugs. Finally, he stated that he would agree to any sanctions or impositions which might be imposed upon him were he permitted to remain in Australia.[73]

    [73] 16 February transcript at 90 [30]-[34].

    DIRECTION NO. 79

36. Direction no. 79 superseded Direction no. 65 which had been in place since 22 December 2014. In doing so, the new Direction amended some parts of its predecessor. Relevantly, the principle in paragraph 6.3(3) was amended so that it now reads as follows (emphasis added showing the amendments made):

    A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

37. Clause 13 of the Direction was also amended to read as follows (emphasis added highlighting the amendments made):

    13.1.1 The nature and seriousness of the conduct

    (1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to factors including:

    (a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

    (b) The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

    (c) The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

    (d) Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;

    (e) The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;

    (f) The cumulative effect of repeated offending;

    (g) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

    (h) Whether the non-citizen has re-offended 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);

    (i) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;

1. The gravamen of these changes, in relation to this application, which the Tribunal is bound to take into account, is that they express a clear public policy that crimes against women, in particular violent and/or sexual crimes, are to be taken as being particularly serious.

   Primary considerations

   Protection of the Australian community from criminal or other serious conduct

2. The Direction requires the Tribunal to assess the revocation request against the requirement to ensure the protection of the Australian community and, in doing so, to have regard to the nature and seriousness of the Applicant’s conduct and the risk to the Australian community should the Applicant “commit further offences or engage in other serious conduct”.

3. In relation to the matters to be considered as set out in paragraph 13.1.1 of the Direction (and as addressed above) the Tribunal notes:

   ·Sub-paragraph 13.1.1(1)(a): the Applicant’s offence for which he was imprisoned was a sexual crime and therefore it is to be viewed very seriously;

   ·Sub-paragraph 13.1.1(1)(b): the sexual assault committed by the Applicant was committed in circumstances of aggravation and of a violent nature, and perpetrated against a woman, being his now ex-wife. The Agreed Facts indicate that the Applicant “used both his hands to hold the victim’s hands above her head … The accused then held both the victim’s hands using his right hand and placed his left hand under her night dress … The victim made attempts to kick out the accused however his body weight prevented her from doing so”.[74] The Applicant restrained his now ex-wife and physically violated her, in the presence of his sleeping son.

   ·Sub-paragraph 13.1.1(1)(d): the imposition of a 5 year custodial sentence (with a non-parole period of two and a half years), in itself, is an indication of the seriousness with which the Court viewed the Applicant’s sexual offence in question. The maximum penalty which could have been imposed on the Applicant was 20 years imprisonment and the standard non-parole period is 10 years.[75] The Court accepted that there were “special circumstances” in the Applicant’s case and that “[h]is record is one which in my view does not disentitle him to leniency”.[76] However, the qualifier in this sub-paragraph (being “[s]ubject to subparagraph (b) above”), which was specifically added to Direction no. 79, causes the Tribunal to place less weight on the relative leniency of the sentence than it might otherwise have done.

   ·Sub-paragraph 13.1.1(1)(e): Judge Payne noted that “… the victim moved out of the rental property at xx Road, Griffith, due to ongoing domestic violence towards her by the prisoner”.[77] The offences committed by the Applicant for which he was convicted clearly show an escalation in the seriousness of the Applicant’s offending in a domestic context from verbal abuse and intimidation of his ex-wife and her family in breach of an AVO put in place to protect them from domestic violence to actual sexual assault of his now ex-wife. This view of the Applicant’s sexual assault against his now ex-wife as “committed … in the context of pre-existing domestic violence issues” and constituting “an escalation in his abuse” is also noted in his Pre-release report by NSW Corrective Services.[78]

   ·Sub-paragraph 13.1.1(1)(g): the Respondent drew the Tribunal’s attention to details on the Applicant’s application for Australian citizenship signed on 25 October 2017.[79] In that application a question is asked (at 39(a)) in the following terms: “Have you been convicted of, or found guilty of, ANY offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, and any ‘spent’ convictions)?”. The Applicant, on his form, marked the answer “No”. This was not correct as, at the time of the application, he had been before the courts and convicted of the offences of “stalk/intimidate intend fear physical etc harm (domestic)” and “contravene prohibition/restriction in AVO (domestic)”.[80] There is some confusion over aspects of this application form in that the Applicant gave evidence to the Tribunal that it had been completed on his behalf by his now ex-wife;[81] her evidence was to the effect that she could not remember doing so but did not deny the possibility,[82] the handwriting on the form is materially different from that which appears in other Tribunal documents which the Applicant states he wrote personally. However, there is an annotation on the application which reads: “My wife [Ex-wife] added my son’s application in her form”.[83] The Applicant signed the form and is responsible for ensuring that the information therein is correct. To that extent, he failed to comply with the requirement of “disclosing prior criminal offending” to the Department as stated in the Direction.

   [74] Supplementary tender bundle at 152.

   [75] G documents at 30.

   [76] Ibid 34.

   [77] Ibid 31.

   [78] Supplementary tender bundle at 148.

   [79] Ibid 153-170.

   [80] G documents at 29.

   [81] 16 February transcript at 71 [26]-[33].

   [82] Ibid 81 [4]-[8].

   [83] Supplementary tender bundle at 155.

4. In assessing the risk of the Applicant reoffending, the Tribunal starts with the remarks of the sentencing Judge. Her Honour was of the opinion that the offence in question was “certainly below the midrange” and that “there are special circumstances in this case”.[84] Her Honour went on to conclude that the Applicant “has good prospects for rehabilitation, and on the balance of probabilities it is unlikely he will re-offend”.[85]

   [84] G documents at 34.

   [85] Ibid.

5. Her Honour’s remarks also noted that “the prisoner made significant admissions in the interview”[86] and that “I am firmly of the view he is contrite and remorseful for his offending behaviour”,[87] and was hence entitled to some mitigation of the severity of his sentence.

   [86] Ibid.

   [87] Ibid 30.

6. It is in no way permitted for the Tribunal to go behind or call into question any aspect of the Court’s conviction.[88] However, the Tribunal is entitled, and indeed required, to take into account evidence available to it, at the time of its decision-making,[89] which may call into question the Applicant’s ongoing level of acceptance of responsibility or remorsefulness in relation to his offending after his appearances in court, to the extent that it may be indicative of his continuing or future behaviour.

   [88] Minister for Immigration and Multicultural Affairs v SRT (1999] 56 ALD 349; Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575, 596-597; Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649, 653.

   [89] Shi v Migration Agents Registration Authority [2008] HCA 31, [37].

7. It also notes that the Applicant did not give oral testimony in the District Court but, instead, the Court relied upon the Agreed Facts[90] submitted.

   [90] Supplementary tender bundle at 151-152.

8. What is of concern to the Tribunal is as follows:

   (a)“[PGDX] [w]as charged with raping wife which he stated are false claims made after he informed her family about an extra marital affair she was having” and “[PDGX] spoke about the humiliation in finding out that his wife had previous marriages and multiple affairs – the last that led to his conviction. He reported that he told his wife’s family about the affair and because of this, she made the rape allegations. [PDGX] denied any physical abuse toward his wife. He spoke of repeated physical, financial and emotional abuse from his wife and her family in which his wife would often use their son as a means to manipulate [PGDX]”.[91]

   (b)“[PGDX] 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”[92] and “He provided no insight into the potential impact of his offending behaviour upon his ex-wife … He advised the victim fabricated the assault and the sexual offending was consensual”.[93] “[PGDX] minimised his sexual offending, by claiming the sexual intercourse was consensual. He further claimed his ex-wife made the compliant to the Police for financial reasons”[94]

   (c)“He stated she did not say yes to the sex, but claimed she had not said no either … 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 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”.[95]

   (d)“[The Applicant] denied the offence, advised his ex partner had been black mailing and asking for money. He also claimed she had been cheating on him”.[96]

   (e)“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. [PGDX] claims the victim invited him to the location and had sexual intercourse with him in an attempt to generate evidence against him prior to her compliant to police. He claims he was “set up’ by the victim”.[97]

   [91] International Health and Medical Services clinical record dated 19 November 2020: Respondent’s tender bundle at 33.

   [92] NSW Corrective Services, Pre-release report dated 20 February 2020: Supplementary tender bundle at 140.

   [93] NSW Corrective Services, Pre-release report dated 20 February 2020: Supplementary tender bundle at 141.

   [94] Ibid.

   [95] NSW Department of Corrective Services, Case Note Report (Cessnock Correctional Centre) dated 9 January 2020: Supplementary tender bundle at 125.

   [96] NSW Department of Corrective Services, Case Note Report (Cessnock Community Corrections) dated 7 November 2019: Supplementary tender bundle at 124.

   [97] NSW Department of Corrective Services, Case Note Report (Tumut Correctional Centre) dated 19 July 2018: Supplementary tender bundle at 109.

9. These repeated denials, at different times and places to different authorities, as recently as November 2020, are concerning as they display to the Tribunal not only a lack of insight but also a failure to express genuine remorse or take full responsibility for his actions. His subsequent expressions of such before the Tribunal are, in its opinion, more motivated by the prospect of potential removal from Australia than a genuine expression of his deepest feelings regarding his culpability.

10. Both to NSW Corrective Services and before the Tribunal, the Applicant “explained” that:

    (a)in relation to his break and enter into the premises where the sexual assault took place, he had felt that he was entitled to enter that premises because he regarded it as “my own house”,[98] and

    (b)in relation to forcing himself upon his wife he “felt it was okay as they are husband and wife, although he conceded they were not in a good place in their relationship”.[99]

    [98] Supplementary tender bundle at 125; 15 February transcript at 33 [5]-[7] .

    [99] Supplementary tender bundle at 131.

11. The Tribunal accepts neither of these “explanations”. The premises where the sexual assault took place was not the Applicant’s dwelling place at the time of the offence – he was living elsewhere. It seems axiomatic to the Tribunal that where a place is a person’s “home” it is usual for that person to have a key (which the Applicant did not), or to enter via a door rather than via a window after removing the flyscreen.

12. As to the couple’s status at the time, it is true that technically they were still husband and wife. However, only some eight or nine hours prior to the sexual assault, the couple had attended at Griffith Police Station to have a Justice of the Peace witness their signature on their divorce papers. The Applicant knew the couple were in the process of formally divorcing, and apparently there had been several sets of divorce papers prepared in the past,[100] in relation to which he said:

    this was not the first time that I had signed the divorce papers, and on the previous occasions we continued our relationship even after signing the papers, and that’s why I thought it was being used by her - the signing of the divorce papers was being used by her as effect rather than termination of relationship.[101]

    [100] G documents at 76; 15 February transcript at 36 [1]-[5].

    [101] 16 February transcript 53 [36]-[40].

13. Finally, the Tribunal takes note of the way in which the Applicant has often made reference to his now ex-wife despite his assertions that they had an ongoing supportive relationship:

    ·NSW Corrective Services record that 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 the source of arguments”.[102]

    ·Similarly, in another Corrective Services report, it noted that “[h]e spent a period reflecting his views on his ex partner’s promiscuity and the welfare of his child while living with her”.[103]

    ·He makes numerous claims of his now ex-wife “cheating” on him.[104]

    ·He accused her of being “a prostitute”.[105]

    ·After the sexual assault he checked his now ex-wife’s mobile phone looking for proof that she was having an affair with her employer.[106]

    [102] Supplementary tender bundle at 125.

    [103] Ibid 110.

    [104] Ibid 118 and 124; Tender bundle at 33.

    [105] Supplementary tender bundle at 40.

    [106] G documents at 76.

14. A NSW Corrective Services Pre-release report notes that he had:

    ·“a particularly negative attitude toward his ex-wife”

    ·”admitted to emotional abuse of the victim (his ex-wife)”

    ·“continues to have a negative attitude toward the victim and apportioned blame toward her for his current incarceration”.[107]

    [107] Supplementary tender bundle at 140-141.

15. The Tribunal notes that the Pre-release report records that the Applicant has been assessed as having a “low risk of general reoffending” and being in the “average range of committing a further sex offence”.[108]

    [108] Supplementary tender bundle at 142 and 145 (Emphasis in original).

16. In paragraph 76(e) above the Tribunal relates the Applicant’s statement to the effect that his wife invited him back to her house for the purpose of having sexual intercourse with him. This claim is also repeated in a record of an interview that took place with the Applicant at Cessnock Community Corrections on 9 January 2020 in which it is noted that:

    He did not believe his entry to 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 that his wife had positioned their son in a way which lead (sic) 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.[109]

    [109] NSW Department of Corrective Services, Case Note Report (Cessnock Correctional Centre) dated 9 January 2020: Supplementary tender bundle at 125.

17. The Tribunal does not believe that the level of remorsefulness displayed by the Applicant before the Court, and repeated before the Tribunal, is a true reflection of his insight and state of mind. Rather, the comments made to various authorities in which he either denied the essential facts of his offence or sought to claim some degree of consensuality or to even infer that blame lay with his now ex-wife for what she had suffered, are a truer reflection of his (lack of) understanding of the offence which he committed and lack of genuine contrition.

18. The nature of the Applicant’s sexual crime is to be viewed very seriously. The Tribunal has a high degree of concern that the Applicant will again commit offences of a sexual nature against women, particularly in a domestic context, because he has very limited insight on his offending and also the impact it has on his victim (as distinct from the impact it has had on himself or on his relationship with his son). The Tribunal weighs this first consideration strongly against revocation.

    Best interests of minor children in Australia

19. There is absolutely no doubt that the Applicant is devoted, and committed, to his son, around whom most of his personal world now revolves. Where possible he has sent Child S gifts and provided financial support. Although there was an AVO in place restricting direct contact between the Applicant and his Son, arrangements were made with the consent of the Child Protection Unit for Child S to make two visits to the Applicant while in incarceration. The Tribunal notes that these visits were facilitated by the child’s grandmother and did not involve the child’s mother.[110] Otherwise, the Applicant and his son keep in touch by telephone or video contact.

    [110] Supplementary tender bundle at 139.

20. The Tribunal notes that the Applicant has made it clear that he does not regard it as an option for him to take his son back to India with him – even assuming that this was possible as it would require dealing with matters of citizenship, consent of the mother and possibly approval from child welfare and other authorities. The Applicant stated:

    MS NG: … And if you were not to be successful and you had to return to India, would you take your son with you to India?

    INTERPRETER: I don’t want to have an adverse impact on his future.

    MS NG: Is that – you wouldn’t take him back to India to live with you?

    INTERPRETER: Yes.[111]

    [111] 15 February transcript at 15 [13]-[21].

21. Both the Applicant’s now ex-wife and his former sister-in-law provided written[112] and oral evidence to the Tribunal in which they stressed the extent of the child’s distress at separation from his father. They both noted that the child missed his father and was often distressed when their limited contact periods came to an end.[113] The Tribunal has no difficulty in accepting the veracity and weight of this evidence.

    [112] Statement of the Applicant’s ex-wife filed with the Tribunal on 2 February 2021; Statement of the Applicant’s former sister-in-law filed with the Tribunal on 2 February 2021; G documents at 92-93.

    [113] 16 February transcript at 60 [15]-[28] and 79 [29]-[30].

22. In most circumstances the Tribunal would assign considerable weight in favour of revocation to this criterion. However, there are other factors to consider in this instance:

    (c)The offence against the Applicant’s now ex-wife was committed by the Applicant while his child was asleep in the very same bed that the sexual assault took place, and after the Applicant had allegedly “sle[pt] with my son” for 30 minutes.[114] The Applicant knew the child was in the bedroom before he committed his offence.

    [114] G documents at 76.

    (a)The child in now just over 7 years of age and while his father was, to all intents and purposes, his primary carer for the first half of his life, for a period now since 2018 his father has been physically separated from him in some form of detention;

    (b)In the periods 28 October 2015 to 27 October 2016, 13 April 2016 to 12 April 2017 and from 11 April 2018 until 10 April 2020[115] there were various AVOs taken out against the Applicant, which had the effect of restricting where and how the Applicant could make direct contact with his son.

    [115] Supplementary tender bundle at 40; G documents at 38; Supplementary tender bundle at 44, respectively.

    (c)The Applicant has accused his wife of “using” their son as some sort of bargaining chip against him, “every time there was any problem between me and her she used to send me photos of my son crying, and after that I couldn’t control myself and I used to just go and forget everything”.[116]

    [116] 16 February transcript at 52 [12]-[15].

    (d)The Applicant claims that his ex-wife told him that:

    once I am out of jail I can take our son and we should get out of her life. She [Ex-wife] wants very little to do with him once I am out of jail.[117]

    (e)In her own submission to the Tribunal the ex-wife states:

    I am happy in my life and have moved on with my partner [KA]. I wish [PGDX] to do the same but at the same time he will look after [Child S] as well. [Child S] needs his dad.[118]

    (f)It was the evidence of both the Ex-wife and the former sister-in-law that the child lives with his mother and her new partner and that the new partner treats the child as his own. The son refers to him as “uncle”.[119] The new partner also has occasional custody of a son of his own of about the same age and the two boys get on well together, although the Applicant’s son shows some signs of jealousy that his playmate has a father to interact with and he does not.[120] Child S also has his grandmother who provides occasional care for him when she comes to Australia.

    (g)Were the Applicant to be released into the community he would still be on parole until 16 November 2022[121] and it is unclear what, if any, orders may be put in place that may (or may not) restrict the Applicant’s access to Child S who currently resides with his mother (the victim of the Applicant’s offending).

    (h)Given the comments made about his ex-wife and his previous assertions of her “using” the minor child to gain advantage over him, the Tribunal again cannot be satisfied that the minor child would not suffer some difficulties should his parents not approach his future care and custody with the welfare of the child as their paramount consideration.

    [117] G documents at 74.

    [118] Statement of the Applicant’s ex-wife filed with the Tribunal on 2 February 2021.

    [119] 16 February transcript at 61 [10].

    [120] Ibid 80 [35]-[39].

    [121] G documents at 35.

1. The ex-wife’s assertions that there has been no discussion about the caring arrangements for the child were the Applicant to be released is contradicted by the testimony of the Applicant who stated:

   MS NG: So (indistinct) irrespective of whether you’re living in Rolleston (sic) or Sydney, have you and your ex-wife discussed how you would be involved in your son’s life, if you stay in Griffith?

   INTERPRETER: We have discussed that every fortnight my son will spend Saturday and Sunday with me. If I am on leave and my sister-in-law is also on leave, my son will come and stay with me during that time.[122]

   [122] 15 February transcript at 15 [5]-[11].

2. These factors lead the Tribunal to adopt a position in relation to this primary consideration that it is clearly in the best interests of the minor child, that the visa cancellation be revoked. However, this consideration does not weigh in favour of revocation to the maximum degree which might, in other circumstances, ordinarily be ascribed.

   Expectations of the Australian community

3. Dealing with the expectations of the Australian community is always a difficult task for the Tribunal. Community expectations change over time and they vary according to the circumstances of each case. The Tribunal expects that they might be more favourable to people who have learned from previous experiences of offending and have made serious attempts to get their lives back together and to take active steps for their own rehabilitation. On the other hand, they might be less inclined to view favourably those who have committed particular types of offences, persisted in offending behaviour and failed to take control of their own lives and act responsibly. However, in recent Federal Court decisions the independent scope of the Tribunal to determine what might constitute community expectations has been severely restricted and confined, almost entirely, to no more than an assessment of the weight to be given to this third primary consideration.

4. The Direction itself gives only minimal guidance in the interpretation or application of this consideration. It states:

   The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because of the nature of the character concerns or offences are such that the Australian community would expect the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.[123]

   [123] Direction no. 79 at cl 13.3(1).

5. In cases such as YNQY and BFXK the Federal Court and this Tribunal have noted that this criterion starts off from a position of being, ipso facto and indeed by intention, unfavourable to an applicant.[124] However, as was stated in BFXK the degree of unfavourability is to be assessed in relation to the individual circumstances of each applicant and each case.

   [124] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, [76]; BFXK and Minister for Immigration and Border Protection (Migration) [2018] AATA 886, [126].

6. YNYQ was a case looking at the construction of the predecessor of Direction no. 79, namely Direction no. 65, which was relevantly in the same terms. In that case Mortimer J made the following comments:

   In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.

   I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese).[125]

   [125] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, [76]-[77].

7. The passages referred to by Mortimer J above in Uelese state as follows:

   In my opinion, the reference by the Tribunal to what the Australian community expected of the Australian Government was not a matter that required evidence but was a statement of the views or policy of the Government. The language in paragraph 6.3(2) of the Direction, that the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia, is found in a list of seven “Principles”. There is a further reference to the expectations of the Australian community in paragraph 9.3 of the Direction where the statement is made that the Australian community expects non-citizens to obey Australian laws while in Australia. It states that where a non-citizen has breached, or where there is an unacceptable risk that they will breach, this trust or where the non-citizen has been convicted of offences in Australia, it may be appropriate to cancel the visa held by such a person. Visa cancellation may be appropriate, the paragraph states, ‘simply because the nature of the character concerns or offences were such that the Australian community would expect that the person should not continue to hold a visa’. The paragraph ends by stating that decision-makers should have due regard to the Government’s views in this respect.

   … In my opinion it is open to the Minister to make a statement of the Government’s views as to the expectation of the Australian community and for the Tribunal to act on that statement.

   I conclude that there was no jurisdictional error in the statement of the Tribunal, at [109]: “I have no evidence to enable me to determine the expectations of the Australian community in this matter, other than the guidance provided by the Direction itself” or in the Tribunal's consideration of the expectations of the Australian community.[126]

   [126] Uelese v Minister for Immigration and Border Protection[2016] FCA 348, [64]-[66].

8. The Tribunal’s approach to considering this primary consideration was addressed in the recent decision of FYBR. This case concerned a visa refusal, but its principles apply equally to revocation of a mandatory visa cancellation under section 501CA as paragraph 13.3 of the Direction is worded in identical terms to paragraph 11.3 of Direction no. 65 (under consideration in that case) which is in respect of section 501(1) visa refusals.

9. Charlesworth J said:

   To the extent that cl 11.3 contains a statement of the expectations of the Australian community, the clause is “deeming”, in the sense explained by Mortimer J in the limited passage from YNQY upon which the Tribunal relied ... It is not for the decision-maker to make his or her own assessment of the community expectations and to give that assessment weight as a “primary consideration.[127]

   [127] FYBR v Minister for Home Affairs [2019] FCAFC 185, [67].

10. Her Honour continued:

    ... I prefer to describe the clause as imputing or ascribing to the whole of the Australian community an expectation that wholly aligns with the expectations of the executive government of the day in respect of its subject matter.[128]

    [128] Ibid.

11. In accordance with this judicial guidance the Tribunal must find that the expectations of the Australian community weigh against the revocation request. As noted, it is for the Tribunal to determine the weight to be assigned in these circumstances.

12. Clause 6.3(5) of the Principles set out in the Direction provides that:

    Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

13. The Applicant has lived in Australia for over 7 years (except for a brief period of 6 months in 2015). However, he has spent a majority of his life in India, not arriving in Australia until the age of 28 and then he committed his first offending for which he was convicted by the age of 31 and the sexual assault soon after at the age of 32. It cannot be said that the Applicant had participated in, of contributed to, the community for a long period. As such, a low level of tolerance should be assigned to the Applicant’s criminal conduct.

14. Prima facie, what is involved here is that a woman was asleep in her own bed, with her minor child also in the bed, and in that arguably vulnerable state her estranged husband (with whom she had signed divorce papers but a few hours earlier) broke into her home and had forced sexual intercourse with her without her consent and, indeed, after she had twice rejected his requests for that sexual encounter. Taking into account the “special circumstances” of the case identified by the sentencing Judge and purposeful amendments made to Direction no. 79 (to specifically address violent and sexual crimes against women) the Tribunal cannot but assign considerable weight to this criterion as counting against visa revocation.

    Other considerations

15. As already noted “other” considerations must be taken into account, and while the Direction suggests that “primary considerations should generally be given greater weight than the other considerations”,[129] the Tribunal takes note of Colvin J’s remarks in Suleiman that “[t]o treat the other considerations as secondary irrespective of its character in this particular case does not conform to the language of Direction 65”.[130] His Honour made it clear that the weight of “other” considerations could, in appropriate circumstances, outweigh the primary considerations to the advantage of the Applicant.[131]

    [129] Direction no. 79 at cl 8(4).

    [130] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, [28].

    [131] Ibid 26.

16. This was made more explicit in CFHQ where Deputy President Redfern, referencing Suleiman, stated:

    … factors set out in Direction 65 as ‘other considerations’ should be given appropriate weight, which may, in some cases, outweigh the primary considerations.[132]

    [132] CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858, [88].

17. In XFKR, Wheelahan J said:

    To avoid ambiguity, it might have been better to use the term “non-primary considerations”, as Drummond J did in Jahnke v Minister for Immigration and Multicultural Affairs [2001] FCA 897; 113 FCR 268 at [18]-[19] and [21] when considering the terms of Direction No 17.[133]

    [133] XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 323, [83]. Direction no. 17 was a predecessor to Direction no. 79 using similar terminology.

18. There are 5 “other considerations” listed in the Direction but of those, two are not applicable in this case. The question of any international non-refoulement obligations owed by Australia (in relation to the possible return of the Applicant to India) was not raised at any stage, nor does the Tribunal itself believe it to be relevant in any event. Similarly, there are no impacts upon Australian business interests (as defined[134]) for consideration.

    [134] Direction no. 79 at cl 14.3.

    Strength, nature and duration of ties to Australia

19. The Applicant has effectively been living in Australia since 2013. During his time here his son was born (and is an Australian citizen) and he had periods of productive employment before he was taken into custody.

20. There is evidence to suggest that the Applicant has been active in the affairs of his Temple and did some voluntary work for the Rotary Club.[135] A number of people who have known, or worked with, him in Griffith have provided character references in support of his application to remain in Australia, and he has been offered more constructive support from his long-time friend Mr HP who also provided a statement in support of the Applicant to the Tribunal on 10 February 2021 and who is also willing to provide him with post-release accommodation. All of the referees attest to the Applicant’s good character and evidence some knowledge of his offending behaviour which they describe as being out of character and/or resultant from abuse of alcohol.[136]

    [135] G documents at 88. 15 February transcript 9 [20]-[42].

    [136] G documents at 87, 88, 89-90, 91 and 94.

21. As already noted, both the Applicant’s ex-wife and his former sister-in-law provided written and oral evidence to the Tribunal in favour of the Applicant. In her evidence the Applicant’s ex-wife went so far as to say:

    Me and my sister have enough funds to - for basic (indistinct) and support him for the - wherever he want to (indistinct). And then he was, like, he had enough (indistinct) able to get good job easily and everything. He has enough contacts. He will be able to get job at (indistinct).[137]

    [137] 16 February transcript at 80 [11]-[15].

22. On the other hand, it must be noted that, as addressed in paragraph 103 above, the Applicant’s first offence occurred in a relatively short time after his arrival in Australia and his periods of incarceration/detention mean that he has not participated fully in, and contributed positively to, the community for a significant period of time.

23. Although this consideration may be seen as favourable to the Applicant it cannot be given any substantial weight given the limited nature of his ties both in qualitative and quantitative terms. Despite her outward support for revocation of his visa cancellation, his relationship with ex-wife is not positive (as addressed above) and his ties to her are tenuous, and any link appears to be, at most, by default of the fact that she is the mother of his son. This consideration weighs in favour of revocation but only marginally.

    Impact on victims

24. Strictly speaking there is only one “victim” in terms of the Applicant’s behaviour, although other members of his family may be considered as having been impacted by his actions. His ex-wife has given clear testimony to the effect that she wants the visa cancellation revoked. However, her reasons for this all relate to what she perceives to be in the best interests of the minor child, Child S. Even so, in one of her statements she refers to the “agony and trauma I have had to pass through”.[138] In relation to the Applicant breaking and entering her premises prior to committing the sexual assault itself, she describes feelings of being “very scared and terrified” because she “couldn’t recognise him”.[139] Again, this is indicative that she did not consent to either the Applicant coming to her home that night or her agreeing to have intercourse with him.

    [138] G documents at 92.

    [139] 16 February transcript at 78 [12].

25. Despite this, the Applicant’s ex-wife has made consistent representations to support her ex-husband’s application to remain in Australia.[140] She has even sought to appropriate some of the blame for their marriage problems to herself,[141] and has indicated a desire for the Applicant to remain in Australia in order to help support their son.[142]

    [140] Statement of the Applicant’s ex-wife filed with the Tribunal on 2 February 2021; G documents at 92-93.

    [141] Statement of the Applicant’s ex-wife filed with the Tribunal on 2 February 2021; Supplementary tender bundle at 42.

    [142] “It’s getting very hard for me, because I - it’s just like, I need his help with [Child S] …”: 16 February transcript 79 [9]-[10].

26. The Applicant has mentioned on several occasions that his conviction led to his mother suffering a heart attack and his sister being divorced by her husband because of the “shame” which his actions have brought upon the family.[143]

    [143] G documents at 65, 72, 74; 15 February transcript at 10 [12]-[13].

27. There is nothing, however, which would allow any weight to be assigned to this consideration, rendering it effectively neutral in the present calculus of considerations.

    Extent of impediments if removed to India

28. Clause 14.5(1) of the Direction requires the Tribunal to 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).

29. Attention is to be paid to matters such as the Applicant’s age and health, any language or cultural barriers, and the degree of support which might be available to them in the country of return.

30. The Applicant does not suffer from any major health problems, certainly none which would not be capable of treatment in India. He makes no specific claims in this regard. A letter from the Justice Health and Forensic Mental Health Network (the provider of health care to people in custody in NSW) indicates that the Applicant was diagnosed (in custody) with an adjustment disorder and that he suffers chronic back pain. Medication has been prescribed for both conditions.[144]

    [144] G documents at 79.

31. The Applicant is only 36 years of age and has some skills which would allow him to be gainfully employed. He had some sort of professional employment, in the civil service, in India prior to his arrival in Australia. He speaks fluent Hindi and very passable English. He only came to Australia at age 28 years, and grew up and was educated in India, so it cannot be said that he would face any language or cultural barriers if he were to return to India.

32. The Applicant raised the matter that staying in Australia would place him in the best position to earn money to support his family back in India and also to pay for his brother’s medical bills arising from surgery that he had undertaken due to a brain haemorrhage. Again, the Tribunal considers that the Applicant (and likely also his brother) would have access to any medical or economic support available, which would generally be available to other citizens of India. Furthermore, the Applicant’s previous employment experience in India and skills he has developed Australia in would allow him to be gainfully employed and to earn an income in India as well.

33. He has extensive family connections in India,[145] although as mentioned, he feels that he has brought “shame” upon them by his actions which “may adversely affect their education and prospects of marriage”[146] and, as a result he states that “I feel not safe in India”.[147]

    [145] G documents at 65.

    [146] 15 February transcript at 15 [41]-[42].

    [147] G documents at 69.

34. He further explained this concern as follows:

    MS NG: In your request for revocation to the minister, you wrote – can you turn to page 69 of the G documents, you said I feel not safe in India, I think that’s what you’ve written. Can you tell the tribunal what you mean by that?

    INTERPRETER: That was because of my mistake that I feel like that. I made the mistake because of which my family has been suffering. If I go, I won’t be able to find a job and I am so worried because of this, I even had a heart attack. I know that my sister’s family broke up because of me and I (indistinct) depressed and remorseful because of the mistake I made, my entire family is suffering.[148]

    [148] 15 February transcript at 8 [15]-[24]. The Applicant clarified that it was his mother who had a heart attack: 15 February transcript at 10 [12]-[13].

1. He attributes his claimed change in attitude and behaviour very much to its impact on his family in India saying;

   It actually started in 2018 when my mother had a heart attack and my sister had a divorce. I started feeling guilty that it was - I committed a sin and because of that my family members were being punished by God. And that's why I started doing more of what I consider to be good things.[149]

   [149] Ibid 40 [24]-[28].

2. There is, however, no reason to believe that the Applicant would be in physical danger if returned to India, nor that his family would not support (and indeed, with his brother’s recent brain haemorrhage, rely upon) him.

3. The Tribunal gives this consideration no significant weight either for or against revocation and treats it as weighing neutrally in relation to revocation/non-revocation.

4. Direction no. 79, when setting out the “other” criteria makes it clear that the matters listed above are to be considered but that consideration is “not limited to” those criteria alone.

5. In this respect the Tribunal is more than conscious of the exhortation of Chief Justice Allsop in Hands to the effect that:

   By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.[150]

   [150] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225, [3]. Citations omitted.

   CONSIDERATION AND CALCULUS

6. The Tribunal is called upon to weigh all the considerations for and against the revocation of the Applicant’s visa cancellation and arrive at a conclusion based upon that calculus.[151] The Tribunal has determined as follows in relation to the stated criteria:

   (a)The protection of the Australian community weighs heavily against revocation;

   (b)The best interests of the minor child in Australia weighs in favour of revocation to a moderate degree;

   (c)The expectations of the Australian community weighs heavily against revocation;

   (d)The strength, nature and duration of the Applicant’s ties to Australia weigh in favour of revocation but only to a marginal degree;

   (e)The impact on victims is a consideration which weighs neither for nor against revocation;

   (f)The extent of impediments which might be faced by the Applicant if removed to India weigh neither for nor against revocation.

   [151] Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47, [52].

7. The inevitable conclusion of this calculus is against revocation of the Applicant’s visa cancellation. The Tribunal is more than conscious of the fact that were its decision to ultimately be part of a decision-making process resulting in the removal of the Applicant to India and potential separation from his son, the impact upon both would be significant.

8. Set against this is the fact that the Applicant’s offence was a very serious one – the details need not be repeated. The Direction also imposes on the Tribunal an obligation to reflect in its determinations the public policy outlined therein, especially to the extent that crimes of a violent or sexual nature perpetrated against women and vulnerable people are generally regarded as disentitling perpetrators to the benefits and advantages of living in the Australian community.

   DECISION

9. The decision under review is affirmed.

I certify that the preceding 133 (one hundred and thirty-three) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

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

Associate

Dated: 26 February 2021

Date(s) of hearing:	15 and 16 February 2021
Applicant:	In person (by videoconference)
Solicitors for the Respondent:	Ms G Ng, Australian Government Solicitor