QXNS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 696
•8 April 2022
QXNS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 696 (8 April 2022)
Division:GENERAL DIVISION
File Number: 2021/7948
Re:QXNS
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member D. J. Morris
Date:8 April 2022
Place:Melbourne
Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
........................[sgd]................................................
Senior Member D. J. Morris
Catchwords
MIGRATION – review of decision refusing partner visa to off-shore visa applicant – review applicant is wife of visa applicant – visa applicant convicted of two offences in Australia – substantial criminal record – consideration of ministerial direction – relevant primary considerations – protection of the Australian community – best interests of affected minor children in Australia – expectations of Australian community – other considerations – impact on victims – links to the Australian community, including strength, nature and duration of ties to Australia and impact on Australian business interests – additional consideration – effect on Australian citizen wife – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 19D, 33A, 35, 37, 43
Migration Act 1958 (Cth), ss 338, 347, 499, 501
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Sadiq and Minister for Immigration and Border Protection; Re: [2016] AATA 463
Singh and Minister for Immigration and Border Protection; Re: [2016] AATA 1040Singh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs; Re: [2022] AATA 264
Secondary Materials
Migration Act 1958 – Direction No. 90 – direction under s 499 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (made 8 March 2021/commenced 15 April 2021)
REASONS FOR DECISION
Senior Member D. J. Morris
8 April 2022
PRELIMINARY MATTERS
The Tribunal made an order on 23 February 2022, under section 35 of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’) prohibiting the publication of the name of the Review Applicant in these proceedings. The identity of minor children will also be protected; and certain other details that might tend to reveal the identity of the Review Applicant will be anonymised.
The Visa Applicant, Mr Gurjit Singh, was refused a Partner (Provisional) (Class UF) visa on 8 October 2021, pursuant to section 501(1) of the Migration Act 1958 (‘the Act’) by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The delegate was not satisfied that Mr Singh passed the “character test” under section 501(6)(a) of the Act as he had a “substantial criminal record”, as that term is defined in the Act, having been sentenced to a term of imprisonment of 12 months or more (section 501(7)(c) of the Act).
The Review Applicant, ‘QXNS’, is the Visa Applicant’s wife. She is an Australian citizen residing in Australia and has brought an application for review of this decision to the Tribunal. Her right to do so stems from section 338(1)(b)(c) and 347(2)(b) of the Act, as the sponsor of the Visa Applicant.
HEARING
A hearing was held on 31 January, 1 February, and 16 March 2022 by video, under section 33A of the AAT Act and owing to the public health emergency. The Review Applicant was represented by Mr Mathew Kenneally of counsel, instructed by Carina Ford Immigration Lawyers. The Respondent was represented by Mr Ingmar Duldig, of Clayton Utz. The Review Applicant and the Visa Applicant gave evidence, as did Mr Warren Simmons, clinical psychologist, who gave evidence as an expert witness. After the second day of the hearing, at the request of the then constituted Senior Member, the matter was reconstituted under section 19D(2)(ii) of the AAT Act. An interlocutory hearing was held on 23 February 2022. The parties agreed that documents already admitted into evidence, and the official transcript of the oral evidence given on the first two days of the hearing should be taken into account by the Tribunal as reconstituted. The Tribunal gave leave for an additional psychological report to be lodged, and for the Review Applicant and Visa Applicant to give further oral evidence, which they did on 16 March 2022. At the conclusion of the hearing, the Tribunal reserved its decision.
The Tribunal admitted the following evidence, tendered by the parties:
(a)Volume of ‘TD’ documents lodged by the Respondent under section 37 of the AAT Act on 12 November 2021 (Exhibit R1);
(b)Statement of QXNS, dated 17 December 2021 (Exhibit A1);
(c)Statement of QXNS, dated 25 January 2022 (Exhibit A2);
(d)Statement of Gurjit Singh, dated 20 December 2021 (Exhibit A3);
(e)Statement of Gurjit Singh, dated 31 January 2022 (Exhibit A4);
(f)Psychological report by Mr Jeffrey Cummins, dated 21 February 2013 (Exhibit A5);
(g)Psychological report by Mr Warren Simmons, dated 20 August 2021 (Exhibit A6);
(h)Letter of instruction to Mr Simmons, dated 28 February 2022 (Exhibit A7(a));
(i)Supplementary psychological report by Mr Simmons, dated 3 March 2022 (Exhibit A7(b));
(j)Evidence of communication between Mr Singh and QXNS since November 2021 (Exhibit A8);
(k)Selection of bank statements in the name of QXNS and Mr Singh, of various dates (Exhibit A9);
(l)Evidence that QXNS is a director of a company (Exhibit A10);
(m)Evidence of arrangements for IVF, various dates (Exhibit A11);
(n)Evidence of employment – Mr Singh – Aston’s Food, dated 1 September 2021 (Exhibit A12);
(o)Evidence of employment – Mr Singh – The Ranch Steakhouse, dated 11 January 2021 (Exhibit A13);
(p)Evidence of employment – Mr Singh – Wine Trade, lodged on 23 December 2021 (Exhibit A14);
(q)Diploma of Hospitality evidence, lodged 23 December 2021 (Exhibit A15);
(r)Evidence of property purchased by QXNS in New South Wales (Exhibit A16);
(s)Evidence of the Visa Applicant’s payslips, The Ranch Steakhouse (Exhibit A17);
(t)Evidence that QXNS is shareholder of a named company (Exhibit A18);
(u)Mr Singh – Republic of Singapore dependant’s pass, lodged 20 December 2021 (Exhibit A19);
(v)QXNS – Republic of Singapore employment pass, lodged 20 December 2021 (Exhibit A20);
(w)QXNS, NSW tenancy agreement, lodged 20 December 2021 (Exhibit A21);
(x)Evidence of contract of QXNS’s company dated 26 October 2021 (Exhibit A22); and
(y)Email from QXNS’ solicitor to Mr Simmons, dated 31 January 2022 (Exhibit A23).
The Tribunal also admitted the official transcript of the hearing held on 31 January 2022 (Exhibit T1) and 1 February 2022 (Exhibit T2). The Tribunal had regard to written Statements of Facts, Issues and Contentions submitted by both parties.
QUESTIONS BEFORE THE TRIBUNAL
The first question is: does Mr Singh pass the character test. If the Minister (or other decision-maker) is satisfied that he does, the matter ends there. If not, the second question is whether the discretionary power to refuse his application for a partner visa should be exercised.
Does the Visa Applicant pass the character test?
Before the Tribunal was a National Police Certificate dated 11 April 2017 (TD, p 28). It records that on 13 March 2013 in the County Court of Victoria, Mr Singh was convicted of two counts of the offence of Indecent Assault. On one count, he was sentenced to 10 months’ imprisonment. On the other count, he was sentenced to six months’ imprisonment, four months of which was to be served concurrently. This resulted in a head sentence of 12 months’ imprisonment. No other convictions were recorded on the certificate.
Section 501(1) of the Act states that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the “character test”.
Section 501(6) of the Act states that for the purposes of this section, a person does not pass the “character test” if the person has a “substantial criminal record” as defined by section 501(7). Relevantly in Mr Singh’s case, section 501(7)(c) of the Act provides that a person has a “substantial criminal record” if the person has been sentenced to a term of imprisonment of 12 months or more.
It was conceded by counsel for the Review Applicant that the Visa Applicant fails the character test, because of his two convictions on 13 March 2013 and the resultant prison sentences.
The Tribunal finds that Mr Singh does not pass the character test by reason of having a substantial criminal record.
The exercise of the discretion
As can be seen above, section 501(1) provides that the Minister may refuse to grant a visa to a person if the person has not passed the character test. Failure to satisfy the Minister, or other decision-maker, that a person has passed the character test is not fatal to the prospects of obtaining a visa. In such a case, a visa is not automatically refused; the refusal is the exercise of a discretionary power.
VISA APPLICANT’S IMMIGRATION AND PERSONAL BACKGROUND
Mr Singh was born in 1984 in India and is a citizen of that country. He first arrived in Australia on a student visa in December 2006 (TD, p 190) to study Hospitality. He successfully completed those studies and was awarded a Diploma of Hospitality Management in 2009 (A15). After completing his studies, Mr Singh worked during the day and, in the evenings, as a taxi driver.
Mr Singh obtained a position with a company of which QXNS is the director. The company operates in the food and beverage industry. Mr Singh worked for the company as a service manager. In May 2011, QXNS met Mr Singh in person when she was on a business trip to Melbourne. She had known him before, but only through work telephone conversations.
At the end of November 2012, a romantic relationship developed between QXNS and Mr Singh. Soon after the nature of their relationship had changed from a business to a personal one, QXNS said Mr Singh told her he had been convicted of offences. He gave her relevant Court documents relating to the convictions. QXNS said in her statement and oral evidence that she made it clear the conduct which was the subject of the convictions was completely unacceptable.
In July 2014, following completion of his prison sentence, Mr Singh was voluntarily removed from Australia (TD, p 92). The previous month, QXNS and her daughter (who will be called Miss QD in these reasons) had moved to Singapore. QXNS had separated from Miss QD’s father, who will be called Mr FH. Mr FH was working in Singapore, so QXNS moved there so they could share custody of Miss QD on a ten-day cycle. In August 2015, Mr Singh joined QXNS in Singapore. In November 2016, QXNS and Mr FH finalised their divorce (TD, p 252), and the Review Applicant and the Visa Applicant married in Singapore in March 2017 (TD, p 148).
In 2021, QXNS and her daughter returned to Australia so that Miss QD could commence her attendance at a school in Sydney. Mr FH returned to Australia to help their daughter settle into school but QXNS said that he will then be taking up a position in the Middle East. The arrangement between QXNS and Mr FH is that Mr FH will pay the school fees for Miss QD but QXNS will meet other costs. Miss QD will live with her mother but see her father for annual holidays and at other arranged times.
THE MINISTERIAL DIRECTION – Direction No. 90
Having found that Mr Singh does not pass the character test, the next step is for the Tribunal to consider whether the discretionary power to refuse to grant him a visa should be exercised. Section 499 of the Act provides that the Minister may make directions which a person or body must consider in performing a function or exercising a power under the Act. Any such direction cannot be inconsistent with the Act, but a decision-maker, must under section 499(2A) of the Act, comply with a relevant direction. A decision-maker in this context includes the Tribunal.
On 8 March 2021, the Minister made a direction under section 499, Direction No. 90 (‘the Direction’) which commenced on 15 April 2021. The Tribunal must have regard to the contents of the Direction in considering the discretion as to whether the discretion should be exercised to refuse Mr Singh the visa. The Direction requires that some considerations must be taken into account, where they are relevant. However, the Direction does not contain the Tribunal’s task; it must look at any other relevant factor in the circumstances of the case.
The Tribunal considered the primary and other considerations in the Direction, as relevant to the Applicant’s personal circumstances and his offending history.
PRIMARY CONSIDERATIONS
Protection of the Australian community (paragraph 8.1)
The Tribunal should consider the nature and seriousness of the non-citizen’s conduct and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the conduct (paragraph 8.1.1)
The Tribunal is obliged by the Direction to take into account, without limiting the range of conduct that may be considered very serious, whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children, or acts of family violence.
There is no evidence before the Tribunal that the Applicant has committed any act of family violence. The two offences of which Mr Singh was sentenced on 13 March 2013 at the County Court occurred on separate occasions, in May 2011 and December 2011.
The May 2011 offence
The background to the offending was set out by the sentencing Judge in her remarks to the Court (TD, pp 31-45). The first victim was referred to as ‘RD’. RD was a 31-year-old woman. She had been attending the birthday of a friend. At 4.00 am she decided to go home. She told police later that she was “feeling a bit tipsy but was certainly not drunk”. The hostess of the birthday party had arranged to call some taxis for guests. RD went to a taxi driven by the Visa Applicant. Her Honour said:
RD got into the taxi and sat in the front seat. As soon as she was in the taxi you asked her personal questions such as where she lived, if she lived alone, if she had a partner or husband and if she liked sex. RD said in her statement to police, “I kept telling him that I didn’t think that it was the right thing to be asking someone. He was making me very nervous and I was being cautious with my answers as I did not want to upset him or put myself in a dangerous situation.”
When the taxi stopped at an intersection for a red light, you lent over with your right hand and grabbed the first complainant’s breast. She said that you squeezed hard and then you grabbed the inside of her right thigh. These are the actions which form the basis of Charge 1. RD then said to you , “I’m getting out of the cab right now”, then jumped out of the taxi at the intersection. You showed no reaction to her comments and drove away. RD was able to get some of the numbers of the cab you were driving and immediately reported the incident to the taxi company and then to the police. Black Cabs was able to trace the incident to you by checking relevant records.
On 25 May 2011, you were arrested and interviewed in relation to this matter. You made a “no comment” interview and were released pending summons. A summons was issued on 9 August 2011 and you appeared at the Ringwood Magistrates’ Court on 1 September 2011. At that time it was your intention to contest the charge, such that at the time that the second offence was committed, a contested hearing in relation to the first matter was pending.
The December 2011 offence
The second victim was a 22-year-old woman, whom the Judge referred to as ‘CT’. Her Honour continued her sentencing remarks:
In relation to charge 2 I was told that on 2 December 2011, CT attended a work Christmas party in the city. After consuming a few drinks, she was drunk and not feeling well, so she decided to go home. Some people at the party commented on her condition, stating, “I could tell she was intoxicated but she seemed okay … I was surprised at how quickly she got more drunk … she vomited in the toilet.” Another witness said, “People were holding her up. She couldn’t stand properly … her words were very slurred.” “(CT) was sick in the toilets. She threw up again outside the party.”
The Judge referred to a workmate helping CT to get a taxi and helping her into the front seat of the cab. Her Honour continued:
CT got into the taxi which was driven by you. She sat in the front seat and closed her eyes as she was, to quote her “out of it”, and worried she would be sick again. She later stated that she recalled you trying to talk to her but she just mumbled something back to you. She said that you then touched her shoulder and rubbed her breast, at first over the top of her clothing but eventually underneath her clothing. You rubbed the outside of her vagina, underneath her underwear, and placed her hand on your groin, over your clothing. You asked her to touch your penis. CT thought you had an erection at this stage and recalled that you were breathing heavily. Your actions in touching the complainant on her breast and vagina and placing her hand on your penis gives rise to Charge 2.
You suggested that you stop the taxi. However, CT said she wanted to go home. You stopped the taxi a few doors down from CT’s home. You then left and CT went home. At about 2.22 am she sent a text message to a friend saying she had been violated by a taxi driver. Later that day, she reported the matter to the police and Black Cabs again traced the identity of her driver to you.
On 9 December 2011, you were again arrested and interviewed in relation to the sexual assault of CT on 2 December 2011. You denied the allegation but accepted you were driving taxi number [redacted] on the night….
You were charged and remanded in custody but released on 16 December 2011. After a contested commit[al] hearing, the matter resolved on 24 October 2012.
The matters were listed before the County Court on 1 March 2013. Mr Singh pleaded guilty. He was then sentenced on 13 March 2013. In relation to the May 2011 offence, the Visa Applicant was sentenced to six months’ imprisonment. In relation to the December 2011 offence, he was sentenced to 10 months’ imprisonment. Her Honour directed that two months of the sentence imposed on the first count be served cumulatively with the sentence imposed on the second count, giving a total effective sentence of 12 months’ imprisonment. She further directed that Mr Singh serve six months before becoming eligible for parole. He was placed on the Register of Sex Offenders for 15 years.
Violent and/or sexual crimes are viewed very seriously by the Australian Government and the Australian community (paragraph 8.1.1(1)(a)(i) of the Direction). The sentence imposed was custodial, which is at the top end of the sentencing tools available to a Court, and was for a period of one year (paragraph 8.1.1(1)(c)).
There were similarities in the environment surrounding both offences. In each case, the offending occurred when the Visa Applicant was working as a taxi driver and had been engaged to take each young woman home. In her sentencing remarks, the Judge said (TD, p 36):
Your offending is most serious and is attended by the following aggravating features:
(a) Firstly as a taxi driver, you were entrusted with the safe passage of the victims. They were entitled to feel safe. However, you breached that trust in a most despicable way. Both victims were young females. In the case of the second victim you were aware of her drunken state as is evident from your record of interview. In the case of the first victim, she expressly conveyed to you that she was not interested in your suggestive conversation and signalled to you that it was not acceptable for you to behave as you subsequently did.
(b) The second offence is aggravated by the fact that, before committing it, you were interviewed, charged and had attended Court in respect of the first matter. Therefore, you were expressly on notice that what you had done on the previous occasion was unacceptable and unlawful. Notwithstanding this, you chose to reoffend.
Her Honour took into account that Mr Singh pleaded guilty, saving the victims the trauma of giving evidence at trial, though noting they were not spared this at the committal hearing stage. The Judge stated that the discount the Visa Applicant would otherwise have received for his pleas of guilty was not as great because the plea was entered at a later stage.
The Tribunal must also take into account the frequency of the non-citizen’s offending and whether there is any trend of increased seriousness (paragraph 8.1.1.(1)(d)). The Review Applicant’s solicitors wrote to the Department in August 2021 as follows (TD, p 95):
d) The frequency of Mr Singh’s offending
In our submission, it is not possible to identify any relevant trend in offending in this case, because the relevant offences are Mr Singh’s first and only offence as evidenced on the AFP certificate before the Department.
e) The cumulative effect of repeated offending
In our submission, this consideration has no application in this case, because the relevant offence is Mr Singh’s first and only offence. He has no outstanding charges in Australia or any other country.
(Emphasis in the original.)
It can immediately be seen that these submissions are internally contradictory. There are patently two Indecent assault offences disclosed in the certificate, one in May 2011 and a second one in December 2011.
Mr Singh had been arrested in relation to the May 2011 offence. He had been charged and appeared in Court. He was under summons to appear further before the Court when he committed the second offence. The period between the two offences was only some seven months. There has undoubtedly been an increase in the seriousness of the offending, as is reflected in the nature of the conduct outlined in the sentencing remarks and the increased sentence for the second offence. In the first offence, the conduct involved groping the female passenger. In the second offence, the conduct was more intimate and involved the Visa Applicant touching the victim’s vagina under her clothing.
On the first day of the hearing, Mr Singh was asked by counsel for the Review Applicant, Mr Kenneally, about the May 2011 offending against the first victim, RD. The transcript reads:
Mr Kenneally: Why did you do it?
Mr Singh: In my past life, before moving to Australia, in India it’s very – I have very lack of experience dealing with wom[e]n and also, I think, I believe in culture difference.
…
I thought she might be interested in some things because she was a bit tipsy
Mr Kenneally: Was she Interested?
Mr Singh: No.
Mr Kenneally: Do you think the belief you had back then that she might be interested was a reasonable one?
Mr Singh: I thought because she’s tipsy, she might be interested.
Mr Kenneally: I’ll re-ask the question, Mr Singh. I’m asking now, what do you think of your belief then?
Mr Singh: It’s totally wrong thing to do. It’s totally unacceptable.
The Visa Applicant was then asked about the December 2011 offending against CT.
Mr Kenneally: And again, can you describe for the tribunal what you did to Ms CT?
Mr Singh:CT was drunk that night and I was assigned to pick her up, which I did, she sat on the front seat. On the way home, I started touching her. I tried to hold a conversation, she could not respond because she was drunk. So, on the way home, I start touching her over her shoulder and then I touch her breast as well and also over her vagina and putting her hand on my groin.
Mr Kenneally: And again, Mr Singh, can [I] ask you why you committed those acts?
Mr Singh:This one, honestly, I thought she is drunk, she won’t realise or she won’t be able to pay attention.
Senior Member: Could you just repeat that? Thought she wouldn’t ‘realise’; is that what you said?
Mr Singh: Yes, she [was] drunk, she won’t be able to know what had happened.
Under cross-examination by Mr Duldig, for the Minister, the Visa Applicant agreed that when he committed the second offence, he had already appeared in Court in relation to the first charge. The transcript records:
Mr Duldig:Why did you commit the second offence? Surely you were warned about your behaviour by being arrested in May?
Mr Singh: Honestly I thought CT is drunk and she won’t be able to rely [sic].
Mr Duldig:So is it the case that you just wanted to have a sexual encounter with your victim and you didn’t think that she would realise what was happening?
Mr Singh:Yes. But I didn’t thought [sic] in the sexual encounter, I just felt to touch her because she is drunk and she may not be able to know what happened.
Mr Duldig asked Mr Singh if he agreed that the fact that he was: (a) a taxi driver and (b) the victims were customers and (c) he was entrusted with their safe passage to their destination, made the offences more serious. Mr Singh said that he “definitely” agreed with that.
In terms of the Direction, the Tribunal notes that there has been a cumulative effect of repeat offending, because of the proximity of the offending conduct in the two offences. There is no other offending recorded against Mr Singh’s name in Australia. A Police Clearance Certificate from the Indian High Commission in Singapore dated 9 July 2021 (TD, p 29) and a Singapore Police Force card indicating no recorded offences (TD, p 30) were before the Tribunal. Neither recorded any convictions.
There is no evidence of Mr Singh providing false or misleading information to the Department (paragraph 8.1.1(1)(f)), nor of him being issued any warning or other indication from the Department of Home Affairs about the consequences of further offending (paragraph 8.1.1(1)(g)).
Overall, the Tribunal considers the Applicant’s offending to be very serious. Sexual offending is always serious because it involves unlawful touching of another person. In this case, the seriousness is compounded by two factors. The first is that the victims were both intoxicated and therefore vulnerable. They were each placed into taxis with the expectation they would be safely delivered home. The Visa Applicant’s offending was therefore opportunistic and, in the words of the Judge, “despicable.”
The second factor is that whatever Mr Singh might have thought or misunderstood about cultural practices in Australia, he clearly knew this sort of conduct was unlawful because he had been arrested and charged for the May 2011 offence and appeared in Court. Yet, with this knowledge fresh in his mind, he went on to commit an offence against another vulnerable female passenger, and this time in a worse manner by touching her intimately without her consent.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 8.1.2)
The next part of this primary consideration requires the Tribunal to consider the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. At the outset, there is no evidence of any other general offending by the Applicant, apart from one minor Australian traffic offence he admitted to in oral evidence of being fined for executing a U-turn when not permitted.
The Tribunal must consider the nature of the harm to individuals or to the Australian community should the Applicant re-offend or engage in other serious conduct, and any information and evidence on the risk of re-offending.
In a case like this, where consideration is being given to whether to refuse or grant a visa to a non-citizen, the Tribunal must have regard to whether the risk of harm may be affected by the duration and purpose of the intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa (paragraph 8.1.2(2)(c)). In this case, the visa sought is a provisional partner visa which provides a pathway to permanent residence; it is not the case where the Visa Applicant is seeking to make a temporary visit to Australia for a defined period.
In terms of the risk of re-offending, the Tribunal had before it a 2013 report by a clinical and forensic psychologist, Mr Jeffrey Cummins, and a 2021 report by a consulting psychologist Mr Warren Simmons, together with a supplementary report by Mr Simmons of March 2022.
Mr Cummins saw Mr Singh in February 2013. He prepared a report to be tendered in the County Court. Mr Cummins took a family history from Mr Singh of an unremarkable childhood and growing up in a loving and supportive family. He recorded no gambling problems or illicit drug use, and moderate alcohol consumption.
In terms of personal relationships, Mr Cummins recorded that Mr Singh told him of a friendship in India with a young woman spanning between the ages of 17 and 22 and that Mr Singh told him they were planning to marry. They did not have sexual relations. Mr Singh told Mr Cummins of some attendance at brothels in Australia. He also said that from October 2009 to February/March 2011 he had a regular sexual relationship with a young woman from New Zealand he had met in a bar. Mr Singh in his oral evidence said that he did not regard this as a relationship because they met only for sex every two or so months and did not otherwise socialise together. That ended when the woman returned to New Zealand in around February/March 2011 for personal reasons following the earthquake in Christchurch.
Mr Cummins administered the STATIC-99 risk assessment tool and scored Mr Singh at “3” – he has never lived with a partner; his victims were unrelated to him and were strangers. Mr Cummins wrote that a score of “3” placed Mr Singh at the “lower end of the moderate risk category.”
In relation to the Department’s consideration of refusing Mr Singh’s application for a partner visa, on 18 August 2021, the Review Applicant’s solicitors wrote a letter requesting a report from Mr Simmons. The request asked for the Review Applicant’s background history, Mr Simmons’ assessment of Mr Singh’s current mental health, his risk of recidivism and the likely hardship he would suffer if his visa were to be refused. It is not obvious to the Tribunal whether the Review Applicant’s solicitors were aware of Mr Cummins’ earlier report at this stage, but they did not provide it to Mr Simmons. They also did not apparently provide the sentencing remarks at the County Court. What was provided was the Australian National Police Certificate dated 11 April 2017; the Department’s Notice of Intention to Consider Refusal of 28 July 2021; Character-related legislation; and a copy of Direction No. 90. However, it would appear from his report that Mr Simmons read the sentencing remarks of 13 March 2013 and a statutory declaration of Mr Singh dated 13 March 2018 (TD, p 90).
In terms of the psychosexual history of the Visa Applicant, Mr Simmons wrote:
Mr Singh’s first sexual interactions with women occurred shortly after he arrived in Australia, revealing that he would attend a local brothel with his friends, doing so about once a month for six months. He started feeling uncomfortable about engaging in the behaviour, wondering about how many other people the workers had been engaging in sexual activity with. Mr Singh went on to reveal that his only other sexual partner has been [QXNS]. Mr Singh went on to indicate no history of sexual abuse nor any other deviant sexual behaviour.
(Emphasis added.)
It was clear from his oral evidence and Mr Cummins’ report that what he told Mr Simmons when he was interviewed by video on 19 August 2021 was less than candid. Under cross-examination at the hearing, Mr Simmons said he asked an open-ended question to Mr Singh about past sexual partners, which led to him writing up this part of his report.
The Visa Applicant had a sexual relationship with a New Zealand woman for some 18 months. The Tribunal notes that Mr Singh said, in his 31 January 2022 statement, of the liaison he had with the New Zealand woman: “This is not what I consider a relationship[,] nor do I consider her my partner.”
The Tribunal notes that, after this inconsistency emerged in evidence, Mr Simmons was provided with Mr Cummins’ 2013 report, and he then provided a supplementary report. Mr Simmons said it did not change his earlier conclusions regarding the Visa Applicant’s risk of further offending because the liaison took place before the offences occurred.
The Tribunal accepts that professional conclusion of Mr Simmons, but what is troubling is that the inconsistency does affect Mr Singh’s statement to the Department where he relevantly wrote (TD, p 132):
Why did I commit the offences – 2011
Unawareness of Australian culture
Inexperienced on how to socialize with Australian people
Lack of experience dealing with ladies
Lack of maturity
Although his liaison was with a New Zealander, it occurred in Australia over an extended period and appears on the evidence to be completely consensual. The Tribunal, therefore, does not accept that at the time of the offending Mr Singh had no experience in having a mature and consensual sexual relationship with a female whose cultural mores would be as close to those in Australia as any other country. The Tribunal does not accept that an “unawareness of Australian culture” had any bearing on the Visa Applicant’s offending. He had been living and working in Australia and regularly driving a taxicab. He said in his evidence that he safely transported young women to their destinations on many occasions. What was different on these two occasions, especially the second, is that the women were affected by alcohol, and he decided that an opportunity presented.
Mr Singh in his oral evidence said, of the victims of his offending:
I feel I have given so much pain. Changed their life. Given them pain and trauma. Emotionally, I have disturbed them a lot, because of my actions. They must be feeling why this happened to them. I’m the one who made a kind of full stop to their lives and their future goals ahead.
Regarding of the specific impact on the first victim, RD, the Visa Applicant said:
She would be scared to go out. Scared to sit in a cab. During the committal hearing it was hard to hear her statement. She felt she was the accused, not the victim. She wanted to protect others by making the complaint against me.
When asked about the impact on CT, Mr Singh said: “She was more emotional. She felt very uncomfortable. She wanted to quit her job and move interstate.”
Mr Singh said he undertook a sex offenders’ course in prison, for three days a week over a period of three months. He said he learned about the impact on victims and empathy.
Mr Kenneally asked the Visa Applicant how he thinks the victims felt in the taxi, he responded: “Definitely they would have been very scared. They can’t do anything because the car is driving fast. They can’t do anything.”
When asked what he was thinking when he assaulted RD, he said: “I didn’t care about her feelings. I thought about what I was feeling.”
When asked what he was thinking when he assaulted CT, he said: “That was a different case – she was drunk. I thought she was drunk and won’t realize what has happened.”
Noting Mr Cummins’ assessment in 2013 of Mr Singh being at the lower end of a “moderate risk”, the Tribunal accepts the professional opinion of Mr Simmons that the Visa Applicant is now a “low risk” of re-offending. He is now in a stable and, on the evidence before the Tribunal, a happy marriage, which is a significant preventative factor. However, the Tribunal concludes that the risk is not negligible. A large part of that is Mr Singh’s willingness to sexually assault a stranger in his taxicab, while he was facing charges in relation to an earlier assault; and where he admitted, frankly, to the Tribunal, part of the impetus for his offending was that he thought she would not remember what had taken place or, if she did make a complaint, she would not be believed.
The Tribunal finds that this primary consideration weighs very heavily against exercising the discretion to grant the visa.
Family violence committed by the non-citizen (paragraph 8.2)
The Respondent submitted that this primary consideration is not engaged. There was no evidence before the Tribunal of any offending or conduct that would fall within the category contemplated in this part of the Direction.
The Tribunal finds that this primary consideration is not engaged and therefore weighs neutrally.
Best interests of minor children in Australia affected by the decision (paragraph 8.3)
The Direction requires decision-makers to make a determination as to whether non-revocation is or is not in the best interests of a child affected by the decision. To be considered under this part, a child must be aged under 18 at the time of the decision. Where there are two or more relevant children, the best interests of each should be given individual consideration to the extent that their best interests may differ.
The Tribunal must take into account various factors, as relevant, set out in paragraph 8.3(4) of the Direction. These include whether the Applicant has a parental relationship with the children, the extent to which the Applicant is likely to play a positive role; the impact of prior conduct on the child or children; the likely effect separation would have on the children; whether there is another person or persons who fulfil a parental role. In addition, any known views of the child or children should be taken into account.
The Tribunal is satisfied to determine that four minor children fall into the category which mandates consideration of their best interests in this part of the Direction. They are the daughter of QXNS, Miss QD; and a niece and two nephews of QXNS. The interests of Miss QD are sufficiently distinguished for the Tribunal to consider her best interests discretely.
Miss QD
Miss QD is the daughter of QXNS and her former husband. She was born in September 2007 and is therefore 14 years of age. She moved with her mother to Singapore in 2014 partly because her father was working there and joint custody arrangements would be easier, but also because Mr Singh was able to travel to Singapore from India. QXNS wrote in her statement (Exhibit A1) that between October 2015 and April 2019 she and Mr Singh lived together but he travelled back and forth to India for extended periods. In July 2019, he secured work in Singapore and from that time Miss QD lived with QXNS and the Visa Applicant at their residence in Singapore on a cycle, spending ten days with her mother and the next ten days with her father. In November 2021, QXNS and Miss QD returned to Australia to prepare for Miss QD commencing schooling at an independent school in Sydney from the beginning of the 2022 school year.
Both QXNS and Mr Singh provided statements outlining Mr Singh’s involvement with Miss QD. He said that he first met Miss QD in April 2015 via Skype and met her in person in March 2016. He and QXNS recorded that they have celebrated many family occasions together such as Christmas, Easter, and birthdays. They have also all travelled together to Indonesia for a family holiday.
In terms of the nature and duration of the relationship between Miss QD and Mr Singh, the Tribunal finds that while it is not of long duration and there have been long periods of absence, all the evidence points to it being a positive relationship (paragraph 8.3(4)(a)).
I consider that the Visa Applicant would be likely to play a positive parental-type role in the future, taking into account that Miss QD turns 18 in the first half of 2025. This is not to displace the primary parental roles that her mother QXNS and her father Mr FH play in her life (paragraph 8.3(4)(b)).
The Respondent said that Miss QD does not know of the Visa Applicant’s prior offending and submitted that, should she find out, it might be detrimental to her relationship with Mr Singh. QXNS said it would cause her “embarrassment”. Because they are purely speculatory, the Tribunal does not accept the Respondent’s submissions on this point. It cannot be anticipated how Miss QD might react.
There is no evidence in the psychological reports before the Tribunal that Mr Singh’s offending was directed by any sexual deviancy, nor that he has any unhealthy sexual attraction to children. His offending was centred on adult females of a similar age to him; the criminality being a lack of consent (paragraph 8.3(4)(c)).
There would be some impact on Miss QD if Mr Singh’s visa was not granted. She would no doubt be disappointed because, despite long periods of absence when Mr Singh was working in India, she has come to know him first as her mother’s partner and, since 2017, as her stepfather. She would be able, in such a case, to maintain contact with him by electronic means, as she has been doing in the past and since returning to Australia from Singapore (paragraph 8.3(4)(d)).
There are other persons who already fulfil parental roles in Miss QD’s life, namely her mother QXNS and her father, Mr FH (paragraph 8.3(4)(e)). The written submissions were that Mr FH is shortly to relocate to the Middle East for work but would be returning permanently to live in Australia in around two years. Mr FH has remarried and has a young child.
The Tribunal is satisfied on the contents of the papers before it that Miss QD would wish Mr Singh to be granted a visa. There is no evidence of her being unsupportive of her mother’s new marriage, although QXNS said one of the reasons she did not attend the 2017 wedding (apart from the fact that in that particular week Miss QD was in the care of Mr FH) was that she was struggling at the time with the idea of a new stepfather and “still wanted Mum and Dad to be together”. The Tribunal is satisfied that Miss QD would wish Mr Singh to be granted a visa (paragraph 8.3(4)(f)). Miss QD wrote in August 2021 (TD, p 139):
Mum, Gurjit and I have lived in Singapore for over 5+ years and we’re very excited to go home and see family and move back to Australia, I love the beach and my home. I got into [name of school redacted] in Sydney and I would love to move back with everyone, so myself and my family would greatly appreciate if we could all come home together with Gurjit as Gurjit is a big part of our family.
Paragraphs 8.3(4)(g) and (h) of the Direction are not relevant, on the material before me. The Tribunal makes a determination that it would be in the best interests of Miss QD for the Visa Applicant to be granted the visa.
The three other minor children
Three other minor children have been cited in the papers of the Review Applicant. They are her nephew, F, who is aged 15 and is the son of her sister; another nephew, H, who is aged about seven who is the son of her stepsister; and a niece, M, the daughter of another stepsister, who turns five later this year. QXNS said that Mr Singh has met all the children on the telephone or by video, and has met F in person when he visited Singapore on two occasions and stayed with QXNS and Mr Singh. QXNS said that Mr Singh has not yet met her young niece, M.
The Tribunal accepts that, especially in the case of F, there may be some effect on these children if Mr Singh was refused a visa, more because of the effect it would have on their aunt, QXNS. However, Mr Singh does not play a parental role in their lives and the Tribunal makes a determination that the impact of a decision either way would not have any significant impact upon them, and no impact on their best interests.
Overall, the Tribunal finds that this consideration weighs somewhat in favour of exercising the discretion to grant the visa.
Expectations of the Australian community (paragraph 8.4)
Paragraphs 8.4(1) and (2) of the Direction state:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because of the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia, of the following kind:
…
At paragraph 8.4(2) of the Direction lists specific sorts of conduct, one of which is relevant to the Applicant’s criminal history, at 8.4(2)(c):
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons…
The two offences committed in 2011 are squarely in the category of serious crimes of a violent or sexual nature. They were also crimes against women, and to the extent that the women were both intoxicated and entrusted to the care of Mr Singh as a public vehicle driver, and he knew they were drunk, and the victims were vulnerable. It may be argued that the offending, especially the first offending, was not ‘violent’, in that it was not intended to hurt or harm the victim. The Tribunal does not accept this characterisation in terms of sexual offending. While it may be at the lower end of the spectrum, the Tribunal considers that any sexual offending is, ipso facto, to some degree violent, because it is violating of a victim. The second offending, which involved intimate touching under the victim’s clothes, certainly fits into that description.
The expectation of the Australian community is taken to be a “norm”. The word ‘norm’ means of a ‘standard’ or ‘pattern or type’. A superseded version of the Direction (Direction No. 65) contained generally similar wording to paragraph 8.4 and was considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’). The Court held that it is not for a decision-maker to make his or her own personal assessment of what the “expectations” of the Australian community may be. The expectations articulated in the Direction are “deemed”; they are what the executive government has declared are its views, not what a decision-maker, including this Tribunal, may seek to derive by some other evaluative process.
Direction No. 90 was issued after FYBR and imports the statement that the expectations of the Australian community are to be considered as a “norm”. This wording acknowledges the approach taken by the plurality of the Court in FYBR. Therefore, while the expectations of the community are “deemed” to weigh against an applicant (a position accepted by the parties in this matter), the relative weight will be affected by circumstances in the individual case.
The Tribunal accepts that the Applicant does not have a long history of offending. Only two offences are recorded against his name, and they were committed more than ten years ago. But they were both serious offences. While each case must properly be considered in the context of its individual circumstances, I note that the Tribunal has consistently taken a bleak view of sexual assault offences committed by taxi drivers against their passengers (see, for example, Deputy President McDermott in Re: Sadiq and Minister for Immigration and Border Protection [2016] AATA 463; Re: Singh and Minister for Immigration and Border Protection [2016] AATA 1040; and Senior Member Nikolic in Re: Singh and Minister forImmigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 264).
The Tribunal concludes that, taking into account that there is no evidence of Mr Singh offending since 2011 and these appear to be isolated incidents, their seriousness, and the circumstances in which they were committed means that this primary consideration weighs very heavily against exercising the discretion to grant the visa.
OTHER CONSIDERATIONS
International non-refoulement obligations (paragraph 9.1)
Neither party submitted that this consideration was relevant in a situation where the Visa Applicant is not within the migration zone. This consideration therefore weighs neutrally.
Extent of impediments if removed (paragraph 9.2)
The Direction requires decision-makers to consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country. This clearly is not relevant to Mr Singh, who does not face removal from Australia. He is a temporary resident of Singapore and has, on his evidence and the evidence of QXNS, frequently travelled to his country of citizenship, India, since he voluntarily departed Australia in July 2014 (TD, p 295).
The Tribunal finds that this consideration consequently weighs neutrally.
Impact on victims (paragraph 9.3)
The sentencing Judge referred to the contents of victim impact statements made by Ms RD and Ms CT during the Court proceedings However, the Tribunal considers that this part of the Direction should be read in the following context. A victim should have knowledge of the immigration circumstances of an applicant. Secondly, a victim must have expressed a view about any impact on them of the person being granted a visa to be in Australia. In this case, there was no evidence that either Ms RD or Ms CT had that knowledge.
As there was no such evidence before the Tribunal, the Tribunal finds this consideration weighs neutrally.
Links to the Australian community (paragraph 9.4)
This consideration is divided into two parts, the strength, nature, and duration of ties to Australia (at paragraph 9.4.1), and the impact on Australian business interests (paragraph 9.4.2).
Sub-consideration: Strength, nature and duration of ties to Australia
The Tribunal must consider any impact of the decision to refuse the visa on the non-citizen’s immediate family members in Australia where those family members are Australian citizens, Australian permanent residents or people who have the right to remain in Australia indefinitely. In this case, the relevant immediate family members are the Visa Applicant’s wife, QXNS, and her daughter, who is his stepdaughter, Miss QD, both of whom are Australian citizens.
In terms of Mr Singh’s ties to QXNS, Mr Kenneally submitted that there would be significant hardship for them both if the visa was refused. QXNS has relocated to Australia for Miss QD’s secondary schooling, so is effectively tied to reside here for the next four years, especially as Mr FH is working abroad for the next two years. She is likely to have sole physical custody of their daughter apart from Miss QD having an annual holiday with her father. It was submitted that the Visa Applicant and Review Applicant would not be able to continue their married life if the visa is not granted.
Counsel submitted that it is a relationship of long-standing which commenced before Mr Singh went into custody. It is stable and monogamous, and they have attempted to have a child together.
The Tribunal broadly accepts these submissions, and that Mr Singh has developed substantial ties with QXNS and, thereby, with Australia. There was also evidence before the Tribunal of other friends of Mr Singh who reside in Australia, and who had made statements of support. For example, one friend who was aware of the offending and knew Mr Singh from his time in Australia until the Applicant left in 2014, wrote of the Visa Applicant’s remorse and expressed the view that there was no risk of re-offending (TD, p 144). Others spoke generally in support of Mr Singh and expressed views about the genuineness of his relationship with QXNS (For example, TD, pp 184, 185, and 263). The Tribunal accepts that Mr Singh has a positive relationship with QXNS’s mother and stepfather and has travelled with them in India in 2017; and that he has a warm relationship with QXNS’s stepbrother and his wife. QXNS’s mother visited both Mr Singh and her daughter in Singapore, and members of QXNS’s family travelled from Australia to Singapore to attend the wedding.
Sub-consideration: Impact on Australian business interests
The Tribunal must consider any impact on Australian business interests if Mr Singh is not allowed to enter Australia, noting that an employment link would generally only be given weight where the decision under section 501 would significantly compromise the delivery of a major project or an important service in Australia.
QXNS is the director of a relatively substantial business in Australia. Mr Singh worked for this business before he formed a romantic relationship with QXNS and she advised the Tribunal he would be able to resume a position with this company in the event he was granted a visa. However, his plan is to establish his own restaurant or café, having worked as a restaurant manager in Singapore. The Tribunal is not satisfied that the denial of a visa to the Visa Applicant would have a significant impact on a major project or the delivery of an important service in Australia.
This sub-consideration is therefore found to weigh neutrally.
Overall, the consideration relating to links to Australia is found to weigh in favour of exercising the discretion to grant the visa.
Additional consideration – impact on QXNS
Although the Tribunal must consider relevant considerations as spelt out in the Direction, that ministerial directive does not contain the task of the Tribunal. Any other matter fairly raised in submissions can be considered, where the matter is sufficiently relevant to the purposes of the Act. The visa sought is a provisional partner visa where the sponsor is married to the non-citizen. Therefore, the impact on QXNS is an important and relevant consideration for the Tribunal to take into account.
The substantial documentary and photographic evidence before the Tribunal supports a conclusion that the relationship between QXNS and Mr Singh is genuine, loving and mutually supportive. There is also some evidence of financial pooling of resources, though this element is not substantial.
There was evidence before the Tribunal that QXNS and Mr Singh have been keen to conceive a child, and the Review Applicant has suffered two miscarriages in late 2019 and late 2020. There was a medical letter (TD, p 480) before the Tribunal from a consultant obstetrician and gynaecologist in Singapore to an obstetrics colleague in Sydney, Dr Emma Chesterman, about QXNS wanting to discuss possible IVF, and asking that Dr Chesterman take over care. There was also evidence of QXNS making contact with other potential providers of fertility treatment (Exhibit A11).
In the circumstances of this case, where QXNS and Mr Singh decided to persevere with their relationship, even with the backdrop that a visa might not be granted, by living together abroad, marrying and pooling some of their mutual resources, the Tribunal accepts there would be a very significant effect on QXNS and Mr Singh if the visa remained refused.
This additional consideration weighs relatively strongly in favour of the discretion being exercised to grant the visa.
CONCLUSION
Of the four primary considerations in the Direction, the two primary considerations, the protection of the Australian community and the expectations of the Australian community, weigh heavily against the visa sought being granted. The primary consideration relating to family violence is not relevant and weighs neutrally. The primary consideration relating to the best interests of the Visa Applicant’s stepdaughter weighs somewhat in favour of granting the visa.
In terms of the other considerations, those relating to international non-refoulement obligations and the extent of impediments if removed are not relevant. The consideration relating to the impact on victims weighs neutrally. The consideration relating to links to the Australian community bifurcates in terms of its two sub-parts, but, overall, weighs, in the Tribunal’s conclusion, relatively strongly in favour of granting the visa. The additional consideration that the Tribunal has found is relevant, weighs in favour of granting the visa.
The Tribunal has come to the conclusion, not unmindful of the significant effect this will have on the marriage between the Review Applicant and the Visa Applicant, that the general principle as outlined in Part 2, paragraph 7 of the Direction – that primary considerations should generally be given greater weight than other considerations – is not displaced in this matter. and the Tribunal further concludes that the primary considerations which weigh strongly against the discretion being exercised outweigh the one primary consideration that weighs somewhat in the other direction, and the other considerations which have been found to weigh in favour of exercising the discretion.
The final question is whether the discretion to refuse the visa should be exercised. The Direction states, at paragraph 5.2(3) (‘Principles’):
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 measureable [sic] risk of causing physical harm to the Australian community.
And at paragraph 5.2(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 non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time…
While the professional assessment of the risk of re-offending of the Visa Applicant may remain ‘low’, the following fact remains, Mr Singh made a conscious decision, fully cognisant of the laws of Australia and that he was awaiting facing justice in relation to a sexual assault, to commit a further and more serious sexual assault. He did so, in each case, when he was in a position of trust. Even more egregiously, he committed the second offence with the stated motivation that the victim was too drunk to realize what he was doing and, even if she did, because of her intoxication, she would not be believed. This is a completely unacceptable attitude for any person in Australia to hold, but more so for a person (a) on a visa and (b) who was about to face the Courts. The Tribunal finds, with those facts not in dispute, and in line with the Principles in the Direction, that the delegate’s decision not to exercise the discretion available in the Act was the correct and preferable decision.
DECISION
Pursuant to section 43(1)(a) of the AAT Act, the Tribunal affirms the decision under review.
I certify that the preceding 116 (one hundred and sixteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris
..................[sgd]......................................................
Associate
Dated: 8 April 2022
Dates of hearing:
31 January, 1 February and 16 March 2022
Applicant:
QXNS
Counsel for the Applicant:
Mr Mathew Kenneally
Solicitors for the Applicant:
Carina Ford Immigration Lawyers
Advocate for the Respondent:
Mr Ingmar Duldig
Solicitors for the Respondent:
Clayton Utz
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