Reddy and Minister for Immigration and Border Protection (Migration)

Reddy and Minister for Immigration and Border Protection (Migration) [2016] AATA 1043 (19 December 2016)

Division

GENERAL DIVISION

File Number

2016/5215

Re

Brian Reddy

APPLICANT

And

Minister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal
Mr Warren Evans, Member

Date 19 December 2016

Place Perth
The Tribunal affirms the decision under review.

.....[Sgd]....................................
Mr Warren Evans, Member
CATCHWORDS
MIGRATION – decision by Minister to refuse applicant’s skilled residence (Class VB) visa pursuant to s 501 (1) of the Migration Act 1958 – Applicant does not pass “character test” as a result of “substantial criminal record” – whether Tribunal should exercise discretion to refuse visa applying Direction 65 -- protection of the Australian community from criminal or other serious conduct considered – best interests of minor children in Australia considered – expectation of the Australian community considered – business interests considered – impact on family members considered -- decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 – s 35(3)(a)

Direction No 65 – Migration Act 1958 – Direction under section 499 visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA – 6.2, 6.3, 7(1), 8(1), 11, 11.1, 11.1.1,11.1.2, 11.2, 11.3, 12, 12.1,, 12.2,, 12.3, and 12.4

Migration Act 1958 – s 501

REASONS FOR DECISION
Mr Warren Evans, Member
19 December 2016
INTRODUCTION

The Applicant in these proceedings, Mr Reddy, seeks review of a decision of a delegate of the Minister to refuse his application for a Skilled Residence (Class VB) (Sub-class 886) visa pursuant to the discretion in s 501(1) of the Migration Act 1958 (the Migration Act) because he did not pass the “character test” in s 501(6)(a) of the Migration Act as a result of his “substantial criminal record”.[1]
[1] Pursuant to s 35(3)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal agreed, following a specific request by the Applicant, and with no objection from the Respondent, to supress the names of certain witnesses called to give evidence at the hearing of this application.
The Applicant is an Indian national. He is 36 years of age. He was raised in Singapore from the age of one and holds Singaporean citizenship. He has been living in Australia since 17 February 2002. He was granted a Student (Temporary) (Class TU) (sub class 573) (Higher Education Sector) visa at that time.
In late 2001, prior to his arrival in Australia, the Applicant was convicted of theft in Singapore. He spent a week in detention in Singapore.
On 18 October 2002, the Applicant was convicted of two traffic offences in South Australia for driving an uninsured and unregistered vehicle. He was fined $175 and his licence was cancelled for two days.
From 2003 to 2008, the Applicant studied for an undergraduate medical degree at the University of Adelaide. He supported himself by taking casual work as a carer with the Salvation Army and as a senior first aid officer (casual) for the Australian Red Cross. On 9 August 2003, he purportedly suffered a debilitating back injury that resulted in a life-time dependence on pain-controlling medication such as paracetamol. The Applicant also apparently suffered a Major Depressive Episode in 2004 as a result of overdosing on paracetamol. This caused him to be treated by a psychiatrist, Dr Gauvin, for depression, for which he was prescribed Zoloft 100mg.
In a report from another psychiatrist, Dr Jules Begg dated 25 July 2012, (G – Docs G20, p133), the Applicant is described as suffering “mood elevation, insomnia, increased activity, irritability and conflict with peers and university supervisors” since sustaining the back injury.
In 2008, the Applicant was expelled from the University of Adelaide’s Bachelor of Medicine course. He was accused of plagiarism and falsifying assessment results by forging a supervisor’s signature. He was later awarded a Bachelor in Health Sciences and certificates in Phlebotomy and Venepuncture Competency on the basis of successful completion of prior study.
The Applicant’s parents immigrated to Australia in 2009. On 9 January 2009, having already obtained an extension of his student visa, the Applicant applied for a Skilled Resident (Class VB) (Sub Class 886) visa. He has been travelling overseas on a Bridging visa B – BVB - subclass 020 ever since, awaiting approval of the Skilled Resident 886 visa.
In 2010, the Applicant undertook a series of actions determined to be criminal in nature. At the time, he was falsely presenting himself as a qualified doctor at hospitals in the Northern Territory – specifically in Alice Springs. Relevantly, he was charged and convicted of:
·     knowingly uttering a forged document (3 instances);
·     obtaining benefit by deception (3 instances);
·     aggravated assault (1 instance);
·     possessing poison (1 instance); and,
·     making a false statement in a Declaration.
In relation to the last dot point above, the conviction related to a false declaration of stamp duty payment due on registration of a vehicle purchase.
The Applicant was sentenced to a total of 42 months imprisonment. This was amended under the relevant “concurrent sentencing” guidelines to 2 years imprisonment, suspended for 2 years after serving 14 months. He was released from prison on 23 April 2011.
Following his release from prison, the Applicant returned to live with his parents at his Adelaide residence. They have continued to live together ever since – more recently in Perth, Western Australia.
In January 2012, the Applicant was apparently charged with arson (G-Docs G3, p6). However, the charges were purportedly withdrawn through lack of evidence and the case has to-date not been proceeded with by South Australian authorities (G-Docs G3, p8 and p10).
Since 2012, the Applicant has ostensibly undertaken courses of further education, established two companies and seeks to remain in Australia to run those businesses and be with his family.
On 14 February 2013, a delegate of the Minister for Immigration and Border Protection refused to grant the Applicant a Skilled Resident (Class VB) visa under s 65 of the Migration Act as he did not meet the permanent resident health requirements (his diagnosis being of permanent stable affective bipolar disorder). He was assessed against Public Interest Criterion (PIC) 4005 on 23 January 2013. That decision was overturned by the Migration Review Tribunal and on 7 July 2014, the Applicant was reassessed as having met the requirement of PIC 4005, thus meeting the health requirement for a permanent stay in Australia (A3, p6).
On 4 April 2016, Mr Reddy was issued a Notice of Intention to Consider Refusal of his Skilled Resident (Class VB) (Sub-Class 886) visa application. On 3 August 2016, a Delegate for the Minister for Immigration and Border Protection refused the Applicant’s visa application under subsection 501(1) of the Migration Act, whereby Mr Reddy did not pass the character test (G Docs PG6, p23).
As a result of the refusal of his visa on character grounds, the Applicant has been in immigration detention since 28 September 2016.
The Applicant now seeks a review of the decision to refuse his visa by this Tribunal in accordance with s 500 of the Migration Act.
ISSUES
The issues for consideration by the Tribunal are:
(a)whether the Applicant passes the “
(b)character test;” and
(c)if not, whether the Applicant’s visa should be refused, taking into account the relevant considerations in Direction No 65.
CONSIDERATION
The character test
The Tribunal must first consider whether the Applicant has satisfied the Tribunal that he passes the character test pursuant to s 501 of the Migration Act.
Section 501 of the Migration Act deals with refusals or cancellations of visas on character grounds.
Pursuant to s 501(1) of the Migration Act, the Minister (or Tribunal upon review) may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the “character test” (in s 501(6) of the Migration Act). This power is discretionary.
Section 501(6) of the Migration Act provides that a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)).
Section 501(7) of the Migration Act relevantly provides:
(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.
It is common ground that the Applicant has a “substantial criminal record”, as defined in s 501(7)(c) of the Migration Act as a result of his criminal convictions. It is noted in that regard that the Applicant was convicted of knowingly uttering a forged document (3 charges) and obtaining benefit by deception (3 charges) for which he was sentenced to a two year term of imprisonment.
As a result of the above, s 501(1) of the Migration Act is enlivened and the only issue before the Tribunal is whether the discretion to refuse to grant the Applicant a visa should be exercised. This requires an analysis of the provisions in Direction 65, discussed below.
Relevant considerations in deciding whether to refuse the Applicant’s visa
In considering whether the Applicant’s visa should be refused, the Tribunal must comply with “Direction No 65 – Migration Act 1958 – Direction under section 499 visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction No 65): s 499(2A) of the Migration Act. Direction No 65 was issued by the Minister on 22 December 2014 and is binding on all decision-makers (including the Tribunal) from that date. Direction No 65 provides guidance to decision-makers on the application of the character test and the exercise of the discretion in relation to visa requests.
Paragraph 6.3 of Direction No 65 sets out a number of principles, including the following:
6.3 Principles
…
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
…
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1) of Direction No 65 provides guidance as to how this discretion is to be exercised.
Paragraph 7(1) of Direction No 65 states:
7. How to exercise the discretion
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
(a)must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa;…
Paragraph 8(1) of Direction No 65 states:
8. Taking the relevant considerations in account
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case…
Part B of Direction No 65 sets out considerations that are relevant in exercising the discretion in s 501(1) of the Migration Act.
Primary considerations
Paragraph 11(1) of Direction No 65 sets out the following three “primary considerations” that must be taken into account in deciding whether to refuse a person’s visa:
(a)Protection of the Australian community from criminal or other serious conduct;
(b) The best interests of minor children in Australia;
(c) Expectations of the Australian community.
Each of the three “primary considerations” is addressed in relation to the Applicant, in turn, below.
(i)Protection of the Australian community from criminal or other serious conduct
In relation to paragraph 11(1)(a) of Direction No 65, paragraph 11.1 of Direction No 65 provides:
11.1 Protection of the Australian community
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision-makers should also give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. [Emphasis added]
Nature and seriousness of the conduct
In relation to paragraph 11.1(1)(a) of Direction No 65, paragraph 11.1.1 of Direction No 65 provides:
11.1.1 The nature and seriousness of the conduct
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date, decision-makers must have regard to:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;
(b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(c)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against s 197A of the Act;
(d)The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under s 501(6)(c), is considered to be serious;
(e) The sentence imposed by the courts for a crime or crimes;
(f)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(g) The cumulative effect of repeated offending;
(h)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(i) Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Tribunal’s findings on the nature and seriousness of the Applicant’s conduct to date are as follows.
In relation to this issue, the Tribunal notes the following contentions made by the Respondent in its “Statement of facts, Issue and Contentions” dated 2 December 2015 (R2) (the Respondent’s SOFIC):
The Nature and Seriousness of the Conduct
25. The nature and seriousness of the conduct are relevant considerations when assessing the risk to the Australian community. Under paragraph 11.1.1(b) of the Direction, offences involving crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled) are serious. The applicant in the present case has been found guilty of fraud, relating to holding himself out to be a doctor for more than nine months. During that time the applicant rotated through positions in the hospital, treating patients in General Medicine, General Surgery and the Emergency Department. He undertook venepuncture and cannulation procedures, sutured and attended to patients who had attended the Emergency Department, despite having no medical qualifications. The patients that the applicant treated during this time were vulnerable members of Australian society who had presented to a hospital for their ailments. In accordance with the Direction, his criminal conduct must be viewed as serious.
26.The seriousness of the applicant’s conduct is reinforced by the sentence imposed on him. Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy, especially where the offender has no prior criminal history. Accordingly, where the Courts have sentenced an offender to a term of custodial imprisonment, such sentences must be viewed as a reflection of the object seriousness of the offence involved. In the present case, the applicant received a custodial sentence of two years (in addition to multiple other sentences which were ordered to be served concurrently) which reflects the Court’s view on the seriousness of his conduct.
27. The sentencing remarks confirm the seriousness of the offence. The Sentencing Judge viewed the offence as serious (G13/111), noting:
“It does not surprise me, that there are no relevant comparative sentences for the type of deception you indulged in as it would take some significant confidence and audacity to commit such a high ranking set of deceptions. Few people fortunately would dare to deceive in this way. The breach of faith with the Alice Springs Hospital and the Medical Board are of a high order given the deplorable consequence that can flow from such deception.” (G13/107)
28.Furthermore, although the applicant’s other offences are of a less serious nature, they show the ongoing willingness (over a period of a number of years) of the applicant to commit fraud to achieve his goals.
The Tribunal also notes the contentions advanced by the Applicant in his “Statement of Facts, Issues and Contentions”, dated 21 November 2016 (A1) (the Applicant’s SOFIC) as follows:
Primary consideration - the nature and seriousness of the Applicant’s conduct
49.There is no doubt that the Applicant recognises the seriousness of his conduct. It is, however, important to understand the nature and circumstances of the offence.
Classification as “violent offending”
50.The Statement of Reasons states at paragraph 7 that “sexual and violent crimes are specifically identified as serious in the Direction, as are crimes against vulnerable persons. [The Applicant’s] criminal history includes violent offending.”
51.Blokland J, the sentencing judge in the Alice Springs Supreme Court, noted that:
In relation to the aggravated assault, I accept that assault arises out of the lack of consent to the procedure or more properly put, that the consent was obtained by fraud...I note you have expressed remorse over this and you realise it is a serious assault because of the lack of consent. I accept it is not the usual assault concerning the gratuitous perpetration of violence however, you must accept it is serious for other reasons.
52.The “aggravation” in this instance arises from the circumstance of the offence (see section 174G Criminal Code (NT). It is not a “violent offence” within the meaning contemplated by the Direction.
53.      Mr Cicchini in his report states:
Having read the complainant’s description, including the above quote, I would say that the categorization of the offence as violence is an overstatement. The offence has elements of negligence or callousness but the issue of violence, or an intent to injure the complainant is not suggested by the complainant... the incident also raises the possibility that at the time Mr Reddy’s mental functioning was not normal, given that had had [sic] training in the procedure which he now failed to execute properly.
54.“Violent” is defined in the Macquarie Dictionary as “1. acting with or characterised by uncontrolled, strong, rough force...2. acting with, characterised by, or due to injurious or destructive force...3. intense in force, effect, etc.; severe; extreme...4. roughly or immoderately vehement, ardent, or passionate. 5. Furious in impetuosity, energy, etc.”
55.There is no dispute that the Applicant’s offences were very serious. However, it does not follow that the Applicant’s actions regarding the failed cannulation, whilst causing pain to the victim and having been conducted without proper consent, should be classified as “violent” when the above definition is considered.
56.The other convictions that appear on his police certificate cannot be described as “violent” by any definition. Therefore “violent offending” in the past by the Applicant should not be a perceived factor contributing to his risk to the community or the nature and severity of his offences.
57.The Applicant has not committed any offences against s 197A of the Act (see subparagraph 11.1.1(c) of the Direction) and has fully disclosed all convictions in his visa application TRN EGNRLN8J41 (G10) (including the theft conviction from Singapore that did not appear on his Certificate of Clearance.
58.While his convictions were declared on subsequent arrivals (1 April 2015 and 9 July 2015), he admits that he failed to declare these on an application made by the Applicant on his Incoming Passenger Card dated 6 May 2013.
59.      Mr Cicchini noted in his report:
[The Applicant] accepted responsibility for certain acts of dishonesty, such as making a false declaration about previous convictions on an entry card when entering Australia in 2013. Whilst at first considering the omission an oversight, upon reflection he acknowledged that his actions were probably motivated by a desire not to be penalised/discriminated against for his previous misconduct.
60.While the false declaration should not, in light of Mr Cicchini’s statement above, be characterised as an “oversight”, it is clear given that the Applicant declared his convictions on subsequent arrivals that it was not a premediated, overarching scheme to deceive the Department of Immigration. His honesty in subsequent arrivals should mitigate any finding that he provided false or misleading information to the department on this one occasion.
61.There is no evidence that the Applicant has provided false or misleading information to the Department at any other time (see subparagraph 11.1.1(h)).
Circumstances of the offences - period of mental instability
62.Paragraphs 13 and 14 of the Statement of Reasons state “I have taken into account references to [the Applicant’s] mental health condition detailed in the Transcript of Court Proceedings and the report from psychiatrist, Dr Jules Begg. I have noted Dr Begg’s submission that on the balance of probabilities the diagnosis of [the Applicant’s] medical condition would be Bipolar 1 disorder and that at the time of the report, he had commenced receiving adequate treatment.” The Statement of Reasons makes no further reference to the Applicant’s medical conditions.
63.The Issues Paper noted (at paragraph 39) that Blokland J addressed the Applicant’s mental state at the time of offending as follows:
Dr Walton is not of the view that you have a mental state defence and you did not assert such a defence. In my view I can safely conclude on the material before me that you have a history of clinical depression; that this has been complicated through various stressors and mood disturbances that have some relevance to creating an environment in which you made poor decisions to offend. The recent provisional diagnosis of bipolar disorder is just that, a provisional diagnosis. I do not have clear enough material to sentence you on the basis that you were in fact suffering bipolar disorder at the relevant time of this offending... [emphasis added]
64.The Issues Paper failed to include the end of the sentencing judge’s sentence, which concluded as follows:
…however the offending appears to have some association with your depression and mood disorder and fluctuating treatment and medication for pain management.
65.      Blockland J also stated:
Unfortunately you have some health problems. These have some association with the offending. I use the words ‘some association with the offending’ intentionally as the relationship between your mental state and the offending is not entirely clear. I accept however there is some relationship between the two...It would appear the relationship with mood and misconduct has been established some time before this offending.
66.In the course of his assessment of the Applicant and compilation of his report Mr Cicchini reviewed both the report provided by Dr Begg and the report provided to the court from Dr Lester A. Walton. He stated that:
A review of [the Applicant’s] history by Psychiatrist Dr Jules Begg, who had access to medical records from General Practitioners and also the Psychiatric Report by Dr L.A. Walton. concluded that on the balance of probabilities and self-reports, [the Applicant] had suffered of a Bipolar Disorder with Manic manifestations in two distinct periods of his life in Australia... The medical information I have reviewed in this case is clearly suggestive that, over a considerable period, [the Applicant’s] functioning was impaired by a mental condition - a bipolar mood disorder, involving both depressive episodes and periods of mania.it is highly likely, but not easily proven, that he may have also engaged in the fraudulent activities because of the disinhibitory effects of the condition upon self-controls and the fact that they provided personal advantages in circumstances of emotional distress (in response to, and as a foil for feelings of failure, guilt and disappointment).
67.Dr Begg’s report was also considered by Medical Officers of the Commonwealth in their assessment of whether the Applicant satisfied sub-subparagraph PIC 4005(1)(c)(ii)(A) in Schedule 4 of the Regulations. In the Forms 884: Opinion of a Medical Officer of the Commonwealth dated 3 September 2012 and 23 January 2013 the Applicant is found to have significant or stable “bipolar affective disorder” which is “likely to be permanent.”
68.      Dr Begg states:
Bipolar Disorder is an episodic, lifelong illness with a variable course. Often people present initially mildly depressed, as [the Applicant] did, and then have either manic or hypo-manic or even mixed episodes subsequently.. .It often takes four years from the first episode until the person starts to stabilise. [The Applicant] seems to fit this category, where in the first couple of years there have been hypo-manic episodes, but now some stability has been achieved, no doubt facilitated by appropriate doses of mood stabiliser. In summary therefore, I believe that on the balance of probabilities the diagnosis is Bipolar I Disorder. He is receiving adequate treatment. The risk of relapse is now low.
69.Consideration of the medical reports of Dr Begg and Dr Walton, the Forms 884 from 2012 and 2013 and Mr Cicchini’s report leads to a conclusion that it is highly likely that the Applicant was suffering from undiagnosed and untreated bipolar disorder at the time of his offending and that this had central relevance to his offending behaviour.
Untreated mental illness
70.The evidence falls short as to whether a mental health defence should have been available to the Applicant and this is not the Applicant’s contention. He accepts responsibility for his behaviour.
71.However, there is clear evidence that his offending behaviour was impacted by his mental condition at the time, at this is recognised by Dr Walton and Mr Cicchini in their respective reports. It also was recognised by Blokland J in the excerpt quoted above.
72.Dr Walton on page 7 of his report stated “I am of the view that this man’s illness may well have central relevance to his misconduct...”.
73.The Applicant takes issue with the Delegate’s finding that his mental health condition was “not a factor” on his offending. Mr Cicchini agrees:
“and the Judge’s deliberations in regard to sentencing cited in the document, Dr Walton’s comment is interpreted as meaning that [the Applicant’s] mental health condition was not a factor on his offending behaviour, which clearly contradicts what Dr Walton stated on page 7 of his report...it is also my view that it would not have been the psychiatrist’s intention to generate that inference that [the Applicant’s] mental condition was not relevant to the matters before the Court. In my view, the uncertainty expressed by Dr Walton about “a mental state defense” probably refers to an absence of conclusive evidence that [the Applicant] was psychotic at the time of his serious offending.
74.Mr Cicchini is of the view that in the Applicant’s case “the motivation or desire giving impetus for such offending arose from internal psychological factors - to achieve success and avoid failure.” He notes that this is a “recurring feature associated with unmet needs for approval during childhood development in adult individuals who mostly do not manifest mood disorders or mental illness.”
75.     Mr Cicchini then comments that:
certain mental conditions...can serve as disinhibitors to normal self-controls, and produce a greater propensity to enact ideas and motivations that the individual might have otherwise held in check. Meaning that in this case, it is highly likely that [the Applicant’s] bipolar disorder was a potent factor in his most serious offending behaviour.in other words, the direction or goal of a misbehaviour is typically motivated by the individual’s unmet psychological needs (as previously mentioned) but the likelihood of acting-out those motivations can be facilitated by the disinhibitory factors arising from their mental disorder that impairs normal evaluative processes, self-control and decision making.
76.The Applicant’s likelihood of engaging in behaviour of concern is driven by his “unmet psychological needs” and increased where “disinhibitory factors” such as his bipolar and depressive illnesses are unmanaged to a degree that they impair “self-control and decision making.”
77.Mr Cicchini quotes Justice C.D. Steytler’s public lecture where he recognises that “the law’s definition of mental incapacity is simplistic and even risible in the eyes of many mental health professionals. People are found guilty of crimes and punished who would never have committed those crimes were it not for a recognised mental illness.
(emphasis added)

In relation to this issue, the Tribunal notes that the Applicant’s Australian National Police certificate, dated 22 April 2016 (G12 at p101), reveals that:
a.On 18 October 2002, the Applicant was found guilty of:
i.Driving an uninsured motor vehicle on the road – fined $100, licence disqualified for two days; and
ii.Driving an uninsured motor vehicle on the road – fined $75.
b.On 16 June 2010, the Applicant was found guilty of:
i.Knowingly uttering a forged document (2 charges) and obtaining benefit by deception (2 charges) – imprisonment for 2 years, suspended after 14 months for a period of two years;
ii.Aggravated assault – imprisonment for 6 months, served concurrently; and
iii.Obtaining benefit by deception and knowingly uttering a forged document – on each charge imprisonment for 2 months, served concurrently, and payment of restitution in the amount of $1,065.
c.On 1 July 2010, the Applicant was found guilty of:
i.Possessing poison – imprisonment for 6 months; and
ii.Making a false statement in a declaration – imprisonment for 4 months, 1 month served cumulatively.
The personal events surrounding these convictions were effectively explained in the Applicant’s SOFIC as follows:
12.The MBBS course in its entirety was six years long. The Applicant continued to study the MBBS until 5 November 2008, when he was expelled from the course. He received credit for the study completed (four years) and was awarded a Bachelor of Health Sciences from the University of Adelaide. Accordingly, he received a certificate for that qualification from the University.
13.Sometime in early 2009 the Applicant created a copy of his legitimate Bachelor of Health Sciences certificate and altered the wording so that the document falsely stated that he had been awarded the MBBS qualification on 18 December 2008 from the University of Adelaide.
14.At or around the same time the Applicant forged a letter that purported to be written by Dr Andrew Fagan, a specialist consultant at Royal Adelaide Hospital. Dr Fagan knew the Applicant as a medical student at the University who had undertaken graduate and research work for him. The forged letter was addressed to the Northern Territory Medical Board.
15.On or around 30 April 2009, the Applicant made an application to the Director of Medical and Clinical Services of Alice Springs Hospital. The application included the forged MBBS certificate, the forged letter from Dr Fagan and a curriculum vitae that falsely claimed he held a medical degree.
16.On or around 6 May 2009 the Applicant made an application to the Registrar of the Northern Territory Medical Board for registration as an intern. The application included the forged MBBS certificate and the forged letter from Dr Fagan. The Registrar issued a Certificate of Conditional Registration as a medical practitioner to the Applicant on or around 8 May 2009.
17.He commenced employment as a medical intern on or around 11 May 2009 for a provisional period of 12 months. At this point, the Applicant had completed a course in Venepuncture Theory and Practice, Specimen collection and handling as well as Patient Relations from the Pathology Foundations (in February 2005).
18.During his time as an intern, he received total gross payments of $64,261.45 (including overtime and penalties of $19,965.85). From that figure the following payments were made, tax of $12,172, salary sacrifice of $13,665 and $4,053.54 into a nominated superannuation fund. This later led to the charge of “obtaining a benefit by a deception”.
19.On 8 October 2009, the Applicant went to the bed of Nigel Kay, an inpatient at the Alice Springs Hospital, to replace Nigel’s cannula. Nigel believed the Applicant to be a qualified and trained doctor and had no issue with the Applicant performing this procedure.
20.The Applicant had difficulty in locating a vein in Nigel’s arm, and began twisting the cannula around Nigel’s skin to locate the vein. This caused Nigel excessive pain.
21.The Applicant then attempted to insert the cannula into Nigel’s lower right arm on a further two occasions with a similar result of excess pain for Nigel. When that was unsuccessful, the Applicant attempted the insertion of the same cannula into the back of Nigel’s hand. He inserted it at an angle of 90 degrees between the third and fourth knuckles and then turned it under the skin to be parallel with the vein. This event led to the charge of aggravated assault.
22.On or around 14 August 2009 the Applicant purchased a Toyota Prado GX 3.0 litre diesel manual wagon from a company in South Australia for $44,490. He paid for the value of the vehicle and took possession of documents evidencing the sale of the vehicle to him. The Applicant then drove that vehicle back to the Northern Territory, with South Australia plates.
23.On 11 November 2009 the Applicant created a document on a work computer, effectively forging a document that appeared to be an original receipt from the South Australian firm but this time it indicated that he had purchased the Toyota Prado for the price of $9,000.
24.On 13 November 2009, the Applicant attended the Alice Springs Motor Vehicle Registry, filled out the required application to register a vehicle in the Northern Territory and indicated on that that the market value of his vehicle was $9,000. He presented that application form together with the forged receipt and other documents as required for proof of ownership and identification to an employee, Amanda Saunders, at that Registry. The Applicant subsequently paid stamp duty of $270. The vehicle was then registered in the Northern Territory with Northern Territory registration plates. The stamp duty on the vehicle’s actual purchase price of $44,490 would have been $1,335.
25.On 24 February 2010, following enquiries by Alice Springs Hospital management to the University of Adelaide, the Applicant was arrested by police.
26.On 24 April 2010 the Applicant underwent an assessment by consultant psychiatrist Dr Lester A. Walton. Dr Walton gave a provisional diagnosis of bipolar disorder based on the Applicant’s descriptions of his elevated moods throughout the offending period.
27.Having pleaded guilty, on 16 June 2010 the Applicant was convicted of the following offences:
a.        three counts of “Knowingly Utter a Forged Document”;
b.        three counts of “Obtain Benefit By A Deception”; and
c.        one count of “Aggravated Assault.”
28.On 1 July 2010 the Applicant was convicted of one count of “Possess Poison” and one count of “Make A False Statement in Declaration.” He was sentenced to a total of two years’ imprisonment, to be suspended after serving 14 months.
29.The Applicant was released from prison on 23 April 2011. Following his release, the Applicant’s parents (names removed), they (sic) commenced living with the Applicant in Adelaide and have lived with him since.”
…..
33.On 6 May 2013 the Applicant declared on his Incoming Passenger Card that he did not have any criminal convictions. His convictions were declared on all subsequent arrivals.
34.On 22 June 2015 the Applicant married (name removed), who currently holds a Class TU (Student) visa in Australia.
…..
37.On 6 October 2016, the Applicant became involved in Goldfields Utilities Pty Ltd.
38.On 19 July 2016 the Applicant made an application for approval as a manager for the purposes of the Liquor Control Act 1988 (WA) (LC Act) for the licensed premises Tawarri, run by Utsavam Pty Ltd, registered in July 2016. He disclosed his criminal history in the application process and was approved as a Manager on 19 September 2016.
39.On 3 August 2016 a decision was made by a Delegate of the Minister for Immigration and Border Protection to refuse the Applicant’s visa application under subsection 501(1) of the Act.
40.The Applicant was given a Notice of Visa Refusal under subsection 501(1) of the Act on 28 September 2016 by hand. The grounds for refusal were as follows:
a.the delegate found that the Applicant has a substantial criminal record and did not pass the character test by virtue of subsection 501(6)(a) with reference to subsection 501(7)(c) of the Act;
b.the delegate considered that the Applicant represents a risk of harm to the Australian community that is unacceptable;
c.the delegate could not be satisfied that the risk of the Applicant re-offending was negligible and that there are no countervailing considerations in his case to warrant the Australian community accepting any level of risk; and
d.the delegate considered that the character concerns in the Applicant’s case are such that the Australian community would expect the visa application to be refused.
41.     The Applicant was taken into immigration detention on 28 September 2016.
42.On 29 September 2016, the Applicant engaged Estrin Saul Lawyers for assistance in lodging an application for review of the decision to refuse with the Administrative Appeals Tribunal. The application was lodged on 3 October 2016.
43.The Applicant has not been convicted of any offences since his release from prison in 2011.
44.The Applicant continues to receive treatment for bipolar disorder since his imprisonment in February 2010. His next appointment is with Peter Dunlop, clinical psychologist, at 5/316 Onslow Rd, Shenton Park WA 6008.
45.The Applicant has expressed remorse for the offences he committed on multiple occasions.
In assessing the nature and seriousness of the Applicant’s conduct, the Tribunal takes particular note of the Applicant’s mental health history. It is noted that the Applicant has been subject of a number of detailed medical assessments during the period 2003 to the present. A brief synopsis of this medical evidence appears below:
Dr Gauvin 2003 - Psychiatrist
The diagnosis of the Applicant’s depression was apparently put by Dr Gauvin in 2003 following an attempted suicide, allegedly brought about by back pain. The diagnosis by Dr Gauvin was not supported by a report from Dr Gauvin at the Tribunal. Dr Gauvin apparently placed the Applicant on ZOLOFT 100mg to balance his moods. Dr Gauvin’s diagnosis was put by the Applicant to the Tribunal during verbal evidence as being the first medical indication of his mental difficulties. That diagnosis of depression is later affirmed by psychiatrist Dr L.A. Walton on 28 April 2010 (A2, p091) who also gave a provisional diagnosis of Bipolar 1 Disorder. Later, Dr Jules Begg (on 25 July 2012) also diagnosed Bipolar Disorder (G Docs PG20, p135).
Dr Walton(A2, p091)
Dr Walton was the examining psychiatrist engaged by Northern Territory authorities to assess the mental state of the Applicant when he was first incarcerated at the Alice Springs Correctional Centre on 23 April 2010.
Dr Walton’s report dated 28 April 2010 (A2, p091) presents a very detailed assessment of the Applicant’s behavioural pattern and the history leading up to the serious offences committed at Alice Springs Hospital.
The report states that the Applicant indicated that he would be pleading (guilty) to all charges. The Applicant freely admitted that “he had an outstanding arson matter in South Australia that predates the Northern Territory matters, but he expected to contest those charges.”(A2, p091) The Applicant stated to Dr Walton: “I was hearing voices telling me to do things. I was highly elevated (in mood)”. He identified two particular voices; “one being from an esteemed Professor who just urged him to ‘get on with the job’ and the voice of the Almighty who stated ‘You a very capable man. You should be in a different field, serving people who need you.’”(A2, p092) The Applicant further stated that “it was his view that the medication did seem to be contributing to his elevated mood, once the supervision by the psychiatrist ceased in early 2008, due to cessation of worker’s compensation funding, (the Applicant) increased his use of the antidepressant (Zoloft) to fairly high doses.”
The Applicant also stated to Dr Walton that:
…it was during the summer months that he was especially prone to periods of euphoria, which might extend for months on end and were associated with minimal sleep, hyperactivity, spending beyond his means and generally “doing stupid things”. He did achieve some partial success, for example, he applied for numerous scholar-ships and research funding and he was successful on over 20 occasions, he being engaged to undertake research by the CSIRO in Melbourne and he would have as many as five projects running at once. He also engaged in formal reviews of the medical literature as a researcher and he estimated that he had published around 10 papers himself. (A2, p093)
Dr Walton commented that the Applicant “was not able to provide me with details but he believes he can corroborate that assertion.” He continued:
Ultimately, [the Applicant] would become overwhelmed by the number of tasks he had taken on and was unable to complete them satisfactorily, and that heralded extended periods of depressed mood. (A2, p093)
Apparently, the Applicant freely acknowledged his wrongdoing and felt remorse for the patient he injured. However, he also stated to Dr Walton:
…the public actually benefited. I did have a good set of skills. I was better than other junior doctors. I did serve the community.
In relation to the Applicant being charged with being in possession of prescribed medications (poison), he stated to Dr Walton that:
…he simply acquired these for his personal use, that is, helped himself from the hospital supply to medication he required. (A2, p094)
Dr Walton further stated that the Applicant:
…can provide no explanation for his attempting to defraud the Northern Territory Government of sales tax, apart from the fact that it is yet another example of his behaving erratically when emotionally disturbed.
Dr Walton further stated that:
…on the basis of information I have to hand thus far, my provisional diagnosis is that of bipolar disorder. (A2, p096)
It is rare indeed for a medical student who has survived to near the completion of training to be ejected from medical school and it is an indication that whatever misconduct that (the Applicant) exhibited must have been regarded as very serious by the authorities. There is at least a suggestion that (the Applicant) is a man of flawed character and, when under stress, that he is particularly prone to dishonesty offending but I am mindful that at the time that the first misconduct occurred, he was already in the grips of chronic pain and significant mood disturbance. Thus I am disinclined to make any diagnosis of personality disorder at this stage.”
If my diagnosis is correct, and especially if (the Applicant) has reached a point of manic hallucinosis, then that gives rise to serious considerations of a defence of mental impairment. However, first of all, I have some doubts as to whether or not that proposition is clinically viable and, furthermore, even if (the Applicant) did reach states of manic psychosis from time to time, it is simply impossible to marry that closely with the precise material times of his offending. Suffice to say that at this stage I am of the view that this man’s mental illness may well have central relevance to his misconduct but I cannot assert at the necessary level of probability that he does actually have a mental state defence.(A2, p097)
“If my hypothesis is correct, that is, that this man’s mental disorder has made a significant contribution to his offending then it follows that proper management of the condition ought to lower the risk of recidivism. While (the Applicant) has no prior criminal history, there is an accumulating history of socially unacceptable behaviour across a range of contexts which is of some concern. However, in relation to all of those acts, it does seem that this man’s mental illness may also have relevance. It remains to be seen whether (the Applicant’s) stated insight into the nature of his mental disorder will confer additional protection against the risk of recidivism but that proposition cannot be automatically negated.(A2, p098)
Dr Begg (G Docs G20, p133)
Dr Begg’s report dated 25 July 2012 was addressed to Dr Raj K Sharma of the Spring Life Medical Centre in Singapore. Dr Begg is a registered psychiatrist practising in Modbury South Australia. The report was sought by the Applicant soon after his release from prison, apparently for the purpose of migration issues.
The report by Dr Begg reflects the Applicant giving the doctor a similar version of his history, both from a family perspective and of his medical and criminal background, as that given to Dr Walton some years before.
Dr Begg reports that the Applicant, after release from prison, underwent a period of two months without work, applying unsuccessfully for about 30 jobs. The Applicant had by then changed his name to effect increased probability of employment.
Dr Begg acknowledges seeing the report of Dr Walton dated 28 April 2010 and noted his diagnosis of Bipolar 1 Disorder.(G Docs PG20, p134 & p135) He also noted that Dr Walton had discussed whether there is a flawed character – coming to the conclusion that:
I am disinclined to make any diagnosis of personality disorder at this stage. (A2, p097 & G Docs PG 20, p134)
Dr Begg went on to observe that:
I too did not see any specific signs of Bipolar Disorder, but noted that his (the Applicant’s) history is quite consistent with a Bipolar Disorder. It is quite likely, given his history, that there was a mood elevation, unfortunately I saw no documentation where anyone has actually written that they saw mood elevation.
It is estimated that as many as 60% of people diagnosed with Bipolar 1 Disorder experience chronic interpersonal or occupational difficulties and sub-clinical symptoms between acute episodes. I can’t exclude the possibility of further episodes of depression or hypomania.
In summary, therefore, I believe that on the balance of probabilities the diagnosis is Bipolar 1 Disorder.
Dr Grantly Tschirn - Consultant Occupational Physician (G Docs G21, p137)
On 7 April 2014, Dr Tschirn provided to the then Department of Immigration and Citizenship (the DIAC) an updated report to one previously dated 13 November 2012 referring to the Applicant’s application for skilled migration (G Docs G21, p137).
Relevantly, Dr Tschrin states:
…since I last saw him, his bipolar condition has remained stable, he continues on the same medication as before, that of Valproate “Epilim” 500mg twice a day and Sertraline (Zoloft) 50mg twice a day.
His history of bipolar disorder diagnosed in 2011 is confirmed. In conclusion, the current diagnosis is of bipolar disorder type one (1) at the good response end of the spectrum. There is no need for specialist mental health care, nor is this likely to be the case over the next five (5) years.”
Dr Tschrin opines (G Docs PG21, p148), that the Applicant would not present a “significant” cost to the Australian government in supporting his medical requirements.
Dr Mercurio Cicchini, Clinical Psychologist (A2, p025)
Dr Cicchini provided a lengthy and detailed report dated 11 November 2016 to the Applicant’s lawyers. The purpose of this report was to provide a psychological assessment of the Applicant for the Tribunal.
Dr Cicchini states that the Applicant was interviewed in person at Yongah Hill Detention Centre on 31 October 2016. This was followed-up with a lengthy telephone interview on 3 November 2016.
It is noted that a significant finding during the formal psychological testing regime was:
Clinical presentations of Mania (which has been an issue in the past) or Hypomania were not evident. His scores indicate an absence of relevant clinical features such as elevated mood, expansiveness and grandiosity, heightened activity levels, irritability and impatience. (However the presence of mania- induced grandiosity possibly being an issue which caused conflicts whilst studying medicine is highly likely, as outlined below).
Of the personality dimensions, Mr Reddy’s Dominance was most significant. He obtained a score suggesting that, according to the test manual, “the need for control is quite pronounced, and possibly taxes the endurance of those who are close to him. Such individuals are generally domineering and tend to have little tolerance for those who disagree with their plans and desires. Others probably view them as self-important, overbearing and dictatorial”. A possibility exists that such a personality feature may have contributed to the conflicts reported whilst studying Medicine, and possibly exaggerated by the disinhibitory effects of his bipolar mental condition.(A2, p028)

Mr Cicchini, in assessing the mental health and personality factors contributing to the Applicant’s offending behaviour, observes:
A review (July 25, 2012) of Mr Reddy’s history by Psychiatrist Dr Jules Begg, who had access to medical records from General Practitioners and also the Psychiatric Report by Dr L.A. Walton (28 April, 2010) concluded that on the balance of probabilities and self-reports, Mr Reddy had suffered of a Bipolar Disorder with Manic manifestations in two distinct periods of his life in Australia - (1) in his student days after his back injury and depression, and treatment with Zoloft medication that produced an elevated mood, and (2) during the period when he fraudulently acted as an “intern” in the Alice Springs hospital.
It remains unclear whether his fraudulent activities at University to obtain better grades, and then forging of his qualifications to give the impression that he was a qualified Doctor when seeking and obtaining employment at a Hospital were also associated with his Manic state, but information from his medical history suggests a strong possibility that it was.
The medical information I have reviewed in this case is clearly suggestive that, over a considerable period, Mr Reddy’s functioning was impaired by a mental condition - a bipolar mood disorder, involving both depressive episodes and periods of mania. (The disorder is now adequately controlled by medication involving both antidepressants and a mood stabiliser prescribed by his general practitioner).
During his manic states, Mr Reddy was inclined to work prolifically on numerous projects simultaneously, and it is highly likely, but not easily proven, that he may have also engaged in the fraudulent activities because of the disinhibitory effects of the condition upon self-controls and the fact that they provided personal advantages in circumstances of emotional distress (in response to, and as a foil for feelings of failure, guilt and disappointment).
It is my opinion that the motivation or desire giving impetus for such offending arose from internal psychological factors - to achieve success and avoid failure. More specifically, avoiding perceived censure and disapproval from his parents who had high expectations for him to succeed in his studies and become a doctor and his own internalised feelings of shame and disappointment for not living up to both his parents’ and his own expectations. I would go as far as to suggest that the motivational drive observed here - of presenting untrue facts in order to gain external acceptance (fraud) - is a recurring feature associated with unmet needs for approval during childhood development in adult individuals who mostly do not manifest mood disorders or mental illness.(A2, p033 – 34)
In his verbal evidence to the Tribunal, Mr Cicchini emphasised that Dr Gauvin did not (in 2004) diagnose Mr Reddy as having Bipolar Disorder where mood is elevated. Rather, he diagnosed him as having depression, which is the opposite of elevation. Mr Cicchini then opined that:
…you do not give Zoloft to bipolar persons.
Under cross-examination, when referred to an incident where the Applicant failed to declare his criminal record on an Immigration Entry Card, Mr Cicchini opined:
…that the action was because he may have been unwell – probably motivated by worrying about being discriminated against. (A2, p038)
Mr Cicchini then offered his opinion on the Applicant’s alleged hyperactivity. That opinion is also reflected in his written report in which he states:
Engaging in multiple activities and hyperactivity is a characteristic of many persons suffering from a bipolar disorder (Mania). In this case, it is reported that he became overwhelmed by the multiplicity of tasks, and was not able to cope (Dr Walton’s report).(A2, p037)
Mr Cicchini then stated that:
…all the different jobs, projects being done by Mr Reddy, with bipolar and depression, can cause unproductive activity.
When asked whether therapy would improve Mr Reddy’s chances of preventing any symptoms arising, Mr Cicchini responded:
…yes – but Mr Reddy is not undergoing therapy at this time.
Mr Cicchini submitted an updated report dated 24 November 2016 (A7) in which he indicates that following his obtaining additional information from Dr Wright, it appears the Applicant had voluntarily increased his Zoloft intake to 150mg daily. Mr Cicchini, at paragraph 11, states:
Furthermore, the reported dosage of 150 mg Zoloft renders plausible Mr Reddy’s claim that the higher dosage of antidepressant medication elevated his mood so much that it actually triggered a manic-type (bipolar) condition, which was only diagnosed in 2010 after his arrest and conviction for the serious fraud convictions that he committed in 2009, and for which he has since been receiving treatment via mood stabilizing medications.”
In assessing the nature and seriousness of the Applicant’s conduct and, importantly, the suggested link between the Applicant’s criminal activity and his mental health issues, the Tribunal finds that the Applicant’s conduct is indeed serious. The fact that he was suffering from a mental health disorder when these offence occurred does not diminish the impact his conduct had on others. The Tribunal notes, in particular, that the Applicant held himself as a medical practitioner when he was not one. The seriousness of that action resulted in his imprisonment for 14 months. The Tribunal places considerable weight on this event and the resulting criminal record. The Applicant’s behaviour in that regard is of considerable concern. The seriousness of his actions in 2009, whereby he committed offences that were deemed abhorrent by the majority of the public, causes the Tribunal considerable disquiet.
Risk to the Australian community
In relation to paragraph 11.1(1)(b) of Direction No 65, paragraph 11.1.2 of Direction No 65 provides:
11.1.2The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.
Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable.
(2)In addition, decision-makers should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(3)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence from independent and authoritative sources on the likelihood of the non-citizen re-offending; and
ii. evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and
iii. the duration of the intended stay in Australia.
(4)Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether- there are strong or compassionate reasons for granting a short-stay visa.
In relation to this issue, the Tribunal notes the following contentions made by the Applicant in the Applicant’s SOFIC:
78.The Applicant is a different person to the man with untreated bipolar disorder who committed the offences which led to his visa refusal. He is married, is receiving adequate treatment and is actively addressing residual issues in his life. He has not been convicted of an offence since his bipolar illness was diagnosed and treated effectively.
79.      Blokland J stated:
I am also mindful of the fact you are a first offender and provided you receive appropriate treatment, the relevant stresses will not operate as significantly as previously, which in turn should reduce the risk of re-offending. I am sure...you have reflected on your situation and it is hoped you have resolved not to re-offend. The fact of you being a first offender with good prospects of rehabilitation, especially if you are treated, means I will suspend a significant portion of your sentence. Your transparency over matters not necessarily to your favour is also taken account of.
80.      The Statement of Reasons concluded that the Applicant:
represents a risk of harm to the Australian community which is unacceptable. I could not be satisfied that the risk of [the Applicant] re-offending was negligible and I found that there are no sufficient countervailing considerations in this case to warrant the Australian community accepting any level of risk.
81.      In relation to the Applicant’s risk of recidivism, Mr Cicchini stated:
A total elimination [of] future risk is not realistic. Human behaviour is a function of [a] number of several interacting factors. Prevention requires insight in the individual about their inner dynamics - their unmet needs that serve as motivators in times of particular stresses, and the presence of disinhibitors such as substance use or the effects on judgement of mental illnesses.[the Applicant’s] case exemplifies the role of mental illness as another type of disinhibitor of normal controls to the common ones of intoxication by drugs or alcohol. So, given a continuation of the bipolar disorder remaining stabilized via medication (as appears to have been the case since his release from prison) and the availability of additional psychological support in the event of future stresses increasing, the risk could be said to be acceptable, and within the normal range for adults. [emphasis added]
82. This finding is in stark contrast to the unqualified finding of the Delegate and the Tribunal can comfortably make a finding that the Applicant’s risk of reoffending, if any, is “acceptable”. The Applicant contends that findings of an experienced clinical psychologist should be given substantial weight.
83.Mr Cicchini has suggested that the Applicant work to “gain insight into his vulnerability schemas [mental templates or filters] and develop better coping measures.” This would “not only equip [the Applicant] with insights that can help avert a future relapse, but also establish a therapeutic support network that can promote his wellbeing and enable him to flourish and achieve his full potential.”
84.      He states in his overview that:
That does not mean that his risk of re-offending in a similar way is high because of the absence of psychological therapy - only that the development of understanding and self-awareness would likely bolster his defences and coping style to a greater degree and further reduce future risks of recidivism.
85.The evidence provided clearly shows that the Applicant’s mental state at the time of offending was of central relevance to his criminal behaviour.
86.There is no evidence that the Applicant’s criminal conduct will be repeated. All of the evidence, including the Applicant’s mental state at the time of the offence, the fact that the offending behaviour was concentrated into one period of time, and the absence of criminal convictions since the offence indicates that the circumstances giving rise to the offending behaviour will not arise again.
87.Mr Reddy is committed to attending further psychological treatment on an ongoing basis.
The Respondent, in turn, made the following submissions in the Respondent’s SOFIC:
Risk to the Australian community
31.Paragraph 11.1.2(1) of the Direction provides that in determining whether the non-citizen represents an unacceptable risk, decision makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases, and that some conduct and the harm that would be caused if it were repeated may be so serious that any likelihood that it may be repeated may be unacceptable.
32.Further, paragraph 11.1.2(2) of the Direction makes plain that given Australia’s low tolerance of any criminal or other serious conduct by visa applicants, there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
33.In considering the risk to the Australian community, the Tribunal must have regard to (a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct, and (b) the likelihood of the non-citizen engaging in such conduct in the future.
34.Taking these in turn, firstly, the nature of the harm to victims if the applicant were to reoffend in the future is very serious. Secondly, whilst the weight of the evidence suggests that the likelihood of the applicant reoffending is not high, the Minister notes the following:
a. That the risk is ‘low’ does not mean that it can be discounted.
b. Further offending by the applicant cannot be ruled out.
c.The evidence does not establish that the applicant has full insight into his conduct.
d.Given the applicant’s history of demonstrated dishonesty across a variety of facets of his life, the fact that the applicant no longer intends to be involved in the medical industry does not assist the applicant in circumstances where there is a risk that he will engage in other dishonest practices.
35.In any event, applying the guidance in paragraphs 11.1.2(1) and (2) of the Direction, and given the nature of the offences, the Minister contends that the risk of the applicant reoffending, even if assessed as low, is unacceptable. In light of Principle 4, the Minister contends that any risk of the applicant reoffending is unacceptable given the seriousness of the applicant’s past conduct and the harm caused were such conduct to be repeated in the future.
36.As such, the Minister contends that this consideration weighs in favour of refusal.
Whilst there is medical opinion as to the Applicant controlling his accepted Bipolar Disorder through medication, the fact the he currently uses his medication spasmodically and only “when he feels an episode coming on”, places him at real risk of reoffending in the future.
The Tribunal is persuaded by the Respondent’s concerns that given the Applicant’s history of demonstrated dishonesty across a variety of facets of his life, the fact that he no longer intends to be involved in the medical industry does not assist him in circumstances where there is a risk that he will engage in other dishonest practices that pose a risk to the Australian community.
Whilst the Tribunal accepts that the Applicant suffers from serious mental health issues, and while the Tribunal is somewhat sympathetic in that regard, this does not detract from the fact that visa holders expecting to remain in Australia, particularly those wanting permanent residency, must recognise the privileges that Australia confers on such non-citizens, including the expectation that they be law-abiding. The Applicant has ignored that principal privilege on a number of occasions. The evidence before the Tribunal demonstrates that activities such as undertaking too many demanding tasks could trigger a manic episode in the Applicant. His business activities, although not explored in detail during the hearing, due to the Applicant expressly withdrawing all reference to his business activities from evidence, gives rise to concerns about his capacity to remain stable should circumstances place him under considerable stress.
On the evidence available and given his past conduct, the Tribunal finds that the Applicant poses a risk to the Australian community as his risk of re-offending is real. Such a risk is, in the Tribunal’s view, unacceptable.
(ii) The best interests of minor children in Australia
In relation to paragraph 11(1)(b) of Direction No 65, paragraph 11.2 of Direction No 65 provides:
11.2 Best interests of minor children in Australia affected by the decision
(1)Decision-makers must make a determination about whether refusal is, or is not, in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse to grant the visa is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future (taking into account the length of time until the child turns 18), and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have, a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Respondent submitted the following in the Respondent’s SOFIC:
Best Interest of Minor Children in Australia
37.The Minister accepts that the applicant has nieces and nephews whom he states will be adversely affected if he is not able to remain in Australia. However, the Minister contends that there is no evidence to suggest that the applicant has the care or guidance of these children, or that they lack such care from their parents. Nor does the applicant’s claim otherwise point to any material impact on the children’s interests. Accordingly, the Minister submits that this factor does not materially weigh in favour of the applicant, and that little weight should be attached to it.
The Applicant, in turn, argued the following in the Applicant’s SOFIC:
88.The Applicant’s brother, [name omitted] has one son [name omitted] aged six years old, and one daughter, [name omitted] aged two years old. Both children were born in Australia and are Australian citizens. They live with their parents in Adelaide, South Australia.
89.The Statement of Reasons makes no reference to these children, which suggests that the impact of the decision on the Applicant’s visa on his niece and nephew (a primary consideration in the Direction) was not considered by the Delegate.
90.The Issues Paper (G Docs PG6, p33) states (at paragraph 52) that “the available information does not indicate that there are any children under 18 in Australia whose best interests would be affected by the refusal of [the Applicant’s] visa.”
91.Attached to the Issues Paper (Attachment H) is the Applicant’s response to the Notice of Intention to Refuse his visa, dated 27 April 2016. (G Docs PG 16, p123) In this response, the Applicant stated (on page 4) that he has:
developed a close relationship with my brother’s children, over the last 5 years since my release. Cancelling my visa is not in the best interests of these children. I have been their uncle for about 6 years now. Both my wife and I maintain meaningful contact with the children. As their only uncle in Australia, I maintain a positive and significant role in the children’s life. My wife and I are good role model for the children…According to my brother and his wife, I have had a positive influence on the children’s life…The likely effect on the child of separating me and the children is detrimental to the children’s growth and development as maintaining family contact with their only uncle is paramount for meaningful and complete development. Being separated from me would be bad for the children as they will lose a good role model in their life and it would be difficult for the children to stay in contact with me as I can never enter the country again.
92. On page 8 of the response, the Applicant states:
My nephew is 6 years old and niece is 2 years old. I visit them often and keep in touch with his family regularly. I maintain a special relationship with my nephew who sees me as his teacher. He will be devastated if my visa was cancelled and I was no longer able to live in Australia.
93.Also attached to the Issues Paper (Attachment T) is the Applicant’s Personal Details form, signed on 27 April 2016. On page 5 of the form G Docs PG28, p192), the Applicant has listed his nephew and niece as children under 18 with whom he has a “parental-type relationship”.
94. There were multiple documents before the decision maker indicating that two children in Australia will be affected by a decision on the Applicant’s visa. The decision maker failed to take this Primary Consideration into account when making their decision.
95.[The Applicant’s nephew] was born while the Applicant was in prison. As soon as he was released, the Applicant began to develop a relationship with his nephew. He has been involved in [the Applicant’s niece’s] life since she was born.
96.[The Applicant’s nephew] writes “I love you Uncle and Rex. When are you coming to see me and [the Applicant’s sister] I want to see you, Love you a lot. Come here and play with us.” [The Applicant’s nephew’s parents] have not yet told him that his uncle could be removed from Australia as they are concerned about the emotional effect this will have on their children.
97. The Applicant maintains ongoing contact with his brother’s children using Skype and phone calls. The Applicant and [the Applicant’s wife] visit the children frequently and spent [the Applicant’s niece’s] first birthday, the Applicant’s most recent birthday and last year’s Christmas and New Year’s Day in Adelaide with them. Evidence of frequent travel to Adelaide will be tendered.
98.[The Applicant’s brother] states in his draft witness statement (contained in the Applicant’s bundle of evidence):
I have two children and they will miss him a lot if the Applicant] was not in Australia as [the Applicant] is their only uncle. My children do not have any other family ties (or relations) in Australia other than [the Applicant’s] family. [The Applicant] visits my children frequently. He has attended my children’s birthdays and special events. He has spent his own birthday, Christmas and New Year with the children. The children are always very excited to see him as he is their only uncle here. They play with [the Applicant] a lot as [the Applicant] is very close to them and entertains them a lot. He wears costumes of cartoon characters to entertain them and my children enjoy his company a lot. When [the Applicant] was here, he used to go with (my son)to drop him at school. I feel that my children express a complete sense of familial bond, enjoyment and content more with [the Applicant] than with anyone else. When [the Applicant] is not around, my children have missed him a lot. My son is constantly asking “When is Uncle and Rex coming back” and “When can we see him”. [The Applicant] speaks with my children often via skype video chat and phone.
99.[The Applicant’s nephew] loves spending time with his uncle. If the Applicant is removed from Australia it is likely he will not be able to re-enter Australia again, and so for him to spend time with his nephew and niece would necessitate them visiting him overseas.
100.[The Applicant’s wife] states in her draft witness statement (contained in the Applicant’s bundle of evidence):
his niece and nephew will also be deeply disturbed if [the Applicant] is not around. Last year, we attended my niece first birthday and spent for few days in Adelaide. Again in December we drove all the way to Adelaide with our dog (Rex) and celebrated [the Applicant’s] birthday with his niece and nephew. Both the kids put the candles for [the Applicant] while his nephew was singing the birthday song. We also celebrated our Christmas and New year with them…[the Applicant] and [the Applicant’s nephew] loves each other company so much…[the Applicant] also used to go with his brother to drop [the Applicant’s nephew] at school due to the tantrum done by [the Applicant’s nephew] for [the Applicant]. Our marriage rings were given by his niece and nephew…[the Applicant] always be in contact with the kids via phone and skype. He always checks on kids how they are growing. [The Applicant] used to give lot of gifts to both the kids. He also sponsored some amount of money for his niece first birthday.
101.Despite the geographical distance between Perth and Adelaide, there is a close family bond and the negative effects of separation from their uncle on [the Applicant’s nephew and niece] are of significant importance to the decision before the Tribunal.

There was much evidence given of the impact of the Applicant being deported on the Applicant’s nephew and niece at the hearing of this application. It is evident that the children enjoy their Uncle’s visits, These visits are at important times such as birthdays and Christmas, however, should the Applicant be unable to visit the children, he still has other means of communicating with them. He currently converses by telephone and by using internet services such as Skype.
The fact remains that these are not the Applicant’s children and his influence on them is not unlike other Australian families. The prime responsibility for the children remains with their parents: refer to paragraph 11.2(4)(a) of Direction No 65 in paragraph 79 above. It was stated in evidence that the grandparents are not close to the brother’s family and do not visit them often. Indeed the grandparents admitted that they remain somewhat estranged from the brother’s family. The fact that Mr Reddy’s circumstances may impact on his relationship with the children is appreciated but overall the impact is deemed more a concern for his brother to address.
Consequently, the Tribunal affords the impact on Mr Reddy’s brother’s children little weight.
(d)Expectations of the Australian community
In relation to paragraph 11(1)(c) of Direction No 65, paragraph 11.3(1) of Direction No 65 provides:
11.3 Expectations of the Australian Community
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.
In relation to this issue, the Applicant submitted the following in the Applicant’s SOFIC:
Primary consideration - expectations of the Australian community
102.The Statement of Reasons at paragraph 16 states “I find that the character concerns or offences in this case are such that the Australian community would expect the visa application to be refused.”
103.The Issues Paper does not contain any discussion of this Primary Consideration. There is no discussion of the expectations of the Australian community in relation to a visa applicant whose offences involved an untreated mental illness, who has since invested heavily in Australian projects, who relies heavily on family support and who has been rehabilitated since his release from prison.
104.Paragraph 11.3 of the Direction suggests that “visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa.”
105.The Tribunal in Waits and Minister for Immigration and Multicultural and Indigenous Affairs1 at [36] stated that “the expectations of the Australian community should be taken to be the expectations of the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s501.”
106.In Leha v Minister for Immigration2 Deputy President Mr B.J. McMahon stated that there is “a general expectation in the community that the Act would be administered fairly and humanely.”
107. “There must always be a place for the leniency which has traditionally been extended, even to offenders with bad records, when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform.”
108. “Public concern about a crime must never be allowed to bring about departure by the courts from the fundamental concepts of justice and mercy which should animate the criminal tribunals of civilised nations: Yardley v Betts (1979) 22 SASR 108 at 112-3; 1 A Crim R 329 at 333. Whilst protection of the public against the commission of crimes of violence must remain of paramount concern, if it is possible, consistent therewith, for a court to be compassionate and assist in the rehabilitation of a human being so as to avoid destroying his life, then the courses ought surely do so: Webb v O’Sullivan [1952] SASR 65 at 66. Nor is mercy to the individual offender inconsistent with the recognition of the seriousness of an offence: Scott v Cameron (1980) 26 SASR 321 at 324.”
Approval by Department of Racing Gaming and Liquor
109.A helpful indicator of “expectations of the community” is the Department of Racing, Gaming and Liquor (DRGL) which, in its own words, is “responsible for promoting and maintaining the integrity of lawful racing, gambling and liquor activities for Western Australians to participate in.”
110.DRGL on its own website goes on to say it achieves this “within community expectations on harm minimisation through the licensing of suppliers and industry support services.”
111. The “character test” in applying for both a liquor licence and an approval as manager is the same: under section 33(6) of the LC Act the applicant must be a “fit and proper” person. The application forms allow the Commissioner of Police to make any necessary investigations and request financial and criminal history information on application forms.
112. Relevant considerations under section 33(6) of the LC Act are:
a.the creditworthiness of that person;
b. the character and reputation of that person;
c. the number and nature of any convictions of that person for offences in any jurisdiction;
d. the conduct of that person in respect to other businesses or to matters to which this Act relates; and
e. any report submitted, or intervention made, under section 69.
113.DRGL, in having regard to the community expectations and its primary objectives under section 5 of the LC Act, considered the Applicant’s criminal history and granted him a restaurant licence and approved him as a manager on 20 September 2016.
114.In light of these approvals, the Tribunal can make a comfortable finding that the Australian community expectations of the Applicant are far from visa refusal and removal. Quite the contrary; this is a case where the Applicant has been found to be a “fit and proper person” entrusted with the sale, supply and consumption of liquor.
(emphasis added)
The Respondent, in turn, submitted the following in the Respondent’s SOFIC:
The Expectations of the Australian Community
38.This primary consideration heavily weighs in favour of refusal. The Direction indicates at paragraph 11.3(2) that visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. It further notes that decision makers should have due regard to the government’s views in this respect.
39.The Minister also notes Principle 2, confirming the expectation of the Australian community that a person who commits serious crimes should have their visa application refused.
40.The Minister also notes Principle 6, confirming that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
41.The applicant’s fraud hearing was widely reported by news outlets in Australia in 2010 and stories appeared in (at least the online versions of) The Sydney Morning Herald, SA Today, NT News, The Australian, News.com.au and other sources. The sentencing judge was aware of the publicity generated by the case and considered that general deterrence was a significant consideration in sentencing.
42.The Australian community would expect that the applicant, being a visa applicant who has committed a serious offence involving sustained fraudulent conduct with potentially very serious consequences and complete disregard for the impact of the conduct on others will be refused a visa.
The Applicant entered Australia initially on a student visa (class 573) on 17 February 2002. At that time, were it known to Australian authorities, his term of imprisonment in Singapore in 2001 may have immediately prevented him being allowed entry. Be that as it may, he was allowed entry to undertake formal training as doctor. That fact alone gives rise to the expectations of the Australian community as to his expected behaviour.
The Applicant may also have been refused entry were it known at the time that he suffered a (as yet undiagnosed) mental illness. The Applicant, through a series of misdemeanours, some resulting in police charges and some being set aside through lack of evidence, reflect poorly on the Applicant’s character. From 2002, the Applicant demonstrated deliberate and unconscionable conduct, including traffic offences, suspected theft of funds from the University social fund, suspected credit card issues in 2009, motor vehicle fraud in 2009, expulsion from two universities, serious criminal charges resulting in imprisonment in 2010 and, suspected arson in 2012 (the credit card and arson incidents remain unresolved). The circumstances of the imprisonment in 2010 weigh heavily in assessing the expectations of the Australian Community in regard to “Principles” in paragraph 6.3 of Direction No 65, in particular: refer to paragraph 28 above.
It is envisaged that the Australian community would expect that a non-citizen, such as the Applicant, who:
·     lawfully entered Australia on a student visa;
·     had that visa renewed;
·     is married to another non-citizen here on a student visa;
·     has developed ties with the business community;
·     is financially independent;
·     who has employment opportunities before him in Australia; and
·     should be entitled to stay in Australia.
However, the Tribunal considers that the expectations of the Australian community are that a non-citizen, such as the Applicant, who has engaged in premeditated and serious offending over a sustained period, should expect to have his visa denied.
Other considerations
Paragraph 12(1) of Direction No 65 states:
12       Other considerations – visa applicants
(1)In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a)       International non-refoulement obligations;
(b)       Impact on family members;
(c)       Impact on victims;
(d)       Impact on Australian business interests.
The Minister’s Decision, although not a decision to “cancel” a visa but, rather, a decision to refuse to grant a visa is, in practical terms, akin to a decision to cancel a visa held by the Applicant. Consequently, the Tribunal considers it appropriate in the Applicant’s case to take into account other relevant considerations.
Impact of visa refusal on family members
In relation to paragraph 12.1(b) of Direction No 65, paragraph 12.2 of Direction No 65 provides:
12.2 Impact on family members
(1)Impact of visa refusal on immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
In relation to this issue, the Applicant contends the following in the Applicant’s SOFIC:
[The Applicant’s parents]
115.The Applicant’s parents [names omitted] moved to Australia in 2009 as permanent residents, after selling all their assets in Singapore. They commenced living with the Applicant in Adelaide and have lived with him since. [The Applicant’s father] stated to psychologist Mr CJ Singh that “there is no way that he can go back and start his life all over again there.”
116. The Issues Paper acknowledged at paragraph 56 that the Applicant’s mother, father, brother, sister-in-law and wife reside in Australia, but stated that “there is no information to indicate that they would suffer hardship if [the Applicant’s] visa application was refused.” The impact of the decision on the Applicant’s family was not mentioned in the Statement of Reasons.
117.To the contrary, various documents submitted by the Applicant in response to the NOICR indicated that his parents were residing in his home. As pointed out by Mr Cicchini in his report:
Common sense would suggest that they would be displaced if Mr Reddy was no longer in the country to provide them accommodation. They would also be deprived of his practical and emotional, if not financial, support. There is also the issue of the role of the young to care for the needs of their elders in both Asian and European cultures…since childhood, Mr Reddy has been conscious of his mother’s emotionally sensitive nature, and his great concern for her wellbeing. The impact of Mr Reddy’s being refused permission to remain in Australia would likely constitute severe disappointment and stress on his parents, especially his mother, with possible adverse effects on her health, wellbeing, and longevity.
118.[The Applicant’s father] is 62 years old and suffers from the following chronic health conditions:
a.        Diabetes Mellitus (type 2);
b.        coronary artery disease;
c.        major depression;
d.         obstructive sleep apnoea; and
e.         osteoarthritis.
119.[The Applicant’s mother] is 60 years old and suffers from the following health conditions:
a.         Ischemic heart disease (myocardial infarction with angioplasty);
b.         type 2 diabetes;
c.         chronic low back pain;
d.          osteoarthritis of knees and back (wheelchair bound); and
e.          major depression.
120.Prior to the Applicant’s visa refusal, he was caring for his parents financially, emotionally and physically and was their main carer. His parents are dependent on the Applicant and his wife for daily tasks and chores.
121.The Applicant and his wife would prepare their meals and do all house cleaning. The Applicant would check on his parents’ health and take them for evening walk, drive them to different places and purchase what they need like food, footwear for their comfort and clothing. He is the only communicator for them as they cannot talk proper English whether it is with general physician or with a merchant.
122.[The Applicant’s father] states in his draft witness statement that the Applicant:
is so close to me, my wife, his wife and his brother’s family. At present, we are suffering psychologically, physically and financially. My wife is crying almost every day for her son and I am feeling very hard to console her. My daughter in law is also suffering due to heavy work like house chores, cleaning, cooking, looking after us and college work. Before when [the Applicant] was around we never worried about finances and my daughter in law and son used to share the work load. Now, I cannot help with anything due to my ill health.
123.     [The Applicant’s mother] states in her draft witness statement:
I am very depressed and very tearful nowadays as I am missing [the Applicant’s] presence dearly…He was the only contact we have with the wider community as he spoke and translated interactions with others for us. I cannot care for myself due to my ill health and I need [the Applicant] to be back as he is our only hope now till we pass away…[the Applicant] should not be deported because we have no one else to look after us and we can’t go to Singapore. My husband and I have invested a lot to come and live in Australia…I cannot do much for myself if [the Applicant] is deported. I need help with cooking, cleaning, walking, shopping and visits to temple and community events…In my culture it is expected that the youngest son care for his parents in the older years…My husband and I cannot move back to Singapore if [the Applicant] is deported as we have no resources there. My son’s wife will leave with [the Applicant] as if he is deported. Therefore, we will be stuck in Perth without a supportive family environment for shelter, money and food if he is deported. No one can care for us here either.
124.They anticipate that if the Applicant were unable to remain in Australia, they would not be able to do anything for themselves. They place great value and importance on the Applicant’s ability to speak with them in their mother tongue, Tamil and especially in a rare form of Telugu with his mother.
125.Both parents report that they are unable to live with their other son [the Applicant’s brother] because of differences between [the Applicant’s mother] and [the Applicant’s brother’s wife], the fact that [the Applicant’s brother] and his wife both work full time and their inability to care for their grandchildren due to their health conditions.
126.     Psychologist CJ Singh’s reports for both parents state:
Due to his Indian cultural values, it would have a negative impact on his mental health and wellbeing if his family is divided and not able to stay together in Australia. He comes from a culture where three generations live under the same roof as an extended family, and the elderly do not die in the nursing home rather they die with the full dignity in their family home. There are no Indian Nursing homes in Australia yet, and he is very scared to end up in the mainstream nursing homes and die in a complete isolation without his family around him.”
The Applicant’s nephew and niece
127.The impact that the Applicant’s removal would have on his Australian citizen nephew and niece has been discussed above.
The Applicant’s wife
128.[The Applicant’s wife] is 23 years old and has been living in Australia since 2015. She is a full-time student at Curtin University, studying a Masters in Business Administration, due to finish in late December 2017. She married the Applicant in June 2015 with full knowledge of his past criminal history.
129.If the Applicant is unable to remain in Australia, [the Applicant’s wife] wife will leave Australia with him. She will be unable to complete her MBA and will incur a huge financial and emotional cost, due to leaving family members, friends, her career prospects and her beloved dog Rex behind.
130.She has also been the primary caregiver for the Applicant’s parents while he has been detained at Yongah Hill. She is struggling to cope with financially supporting them and helping them with daily tasks whilst studying full-time, especially as the end of her university semester is nearing and her workload increases.
131.[The Applicant’s wife] describes having to force-feed the Applicant’s parents their medications and food due to their ill health and lethargy resulting from the Applicant’s visa situation.
132.[The Applicant’s wife] confirms that since she has known him, the Applicant has been in control of his mental health to the extent that she believes he will never reoffend in a similar manner to the past. She is committed to supporting the Applicant and to maintain stability in his life.
(emphasis added)
The Respondent, in turn, argued the following in the Respondent’s SOFIC:
45.The applicant’s parents and brother live in Australia. The applicant’s wife is the holder of a student visa. It is open to the Tribunal to be satisfied that the applicant’s family members may suffer some emotional hardship in the event of the refusal. That said, there is no apparent impediment to the applicant’s family members visiting or possibly relocating to live with him in Singapore (his parents and wife have only recently arrived in Australia…).
46.The Minister contends that this factor is not sufficiently compelling so as to outweigh the considerations weighing against the granting of the visa.

It was apparent from the oral evidence of the Applicant, his brother and parents, that the Applicant was brought up in an atmosphere of strict disciplines. His parents had high expectations for him to succeed in life, to the point where, when the parents retired, the Applicant was expected to look after them in their old age.
It was reiterated a number of times, both in witness statements and in verbal evidence, that Indian Hindu culture dictated that the Applicant was, as the youngest son, expected to look after his parents as they grow older. In his summary of the mother’s medical state, Dr Charan Singh, psychologist, on 13 November 2016 states, inter alia:
In her Indian culture, when the child is young it is the parent’s responsibility to feed the child, look after the child and when the parents grow old, it’s always the son’s responsibility to give everything back. The commonly accepted old age hypothesis in an Indian culture justifies investment in sons as a way to ensure that sons will care for the aging parents once they grow up. It is a common practice for Indian elderly parents to live with a son and depend on them socially, emotionally and economically. She informed that due to the family issues in his elder son’s life, she does not get along well with her elder son and daughter in law as there are a lot of differences. She stated that they had sold all their property and assets in Singapore to migrate to Perth and live with their son Brian and there is no way that they can go back and start their life all over again in Singapore. Due to her Indian cultural values, it would have an adverse impact on her mental health and wellbeing if her family is divided and not able to stay together in Australia. She comes from a culture where three generations live under the same roof as an extended family, and the elderly do not die in the nursing home rather they die with the full dignity in their family home. There are no Indian Nursing homes in Australia yet, and she is very scared to end up in the mainstream nursing homes and die in complete isolation without her family around him.
The parents undertook to invest a lot of money into their sons’ educations, but concentrated on the Applicant, the youngest. The parents had immigrated to Australia in 2009 with the full expectation that their son would carry out his obligations.
During their verbal evidence and in cross-examination, the Applicant’s parents admitted that they travel every six months to Singapore and India for meditation and health reasons, including the mother’s ongoing treatment. The Applicant’s father continues to assist the family financially to a degree and he pays for all expenses when he and the mother travel.
When asked about his income stream, the Applicant responded by saying that he has investments and savings sufficient for his needs at this time. He stated that he owned the home they all live in, however, the father in his verbal evidence stated that he had financed the home.
In summarising the family situation, it is apparent that the family is close-knit. It is also apparent that the mother has dominated the family for many years and still seeks a high degree of respect and commitment to traditional customs. The Applicant’s father and mother submit that they are heavily reliant on the Applicant to provide them a safe and financially secure lifestyle until they die. They also imply that as they have invested heavily in the Applicant’s education and life expenses, it is now his duty as the youngest son to provide for them and repay the monies invested in him. That expectation is both cultural and emotional.
The impact of deportation on the Applicant’s wife may be significant, however, were deportation to happen she would have the option to remain in Australia until completion of her MBA. During that time she would expectantly provide for the Applicant’s parents in the form of daily chores including provision of meals and house cleaning.
Considerable effort was put into the demands of Indian culture in regard to family expectations of the Applicant. These expectations centre mainly on the Applicant’s aging parents. They arrived in Australia as independent immigrants in 2009, with the intent to live with their son into their old age, and with him accepting the responsibilities for their accommodation and daily lifestyle. His deportation would have a considerable impact on their expectations, however, it is not an expectation of the Australia community that an overseas culture drive the outcome of his visa status, nor the diminution of the seriousness of his past actions.
The Applicant’s parents are independently capable both financially and physically of looking after themselves, evidenced by their frequent trips back to India and Singapore. The Applicant’s father admitted to being financially sound in his own right. Whilst they currently have no access to Centrelink support, that may change should they meet the eligibility requirements for government support in the next few years. Their accommodation in Australia is sound, as they live in the Applicant’s house, apparently free of charge. Their estimated living cost of about $500 a fortnight is within the father’s budget, by his own verbal evidence.
The Applicant’s parents’ medical conditions are similar to all Australians of advancing years and do not impact on their frequent overseas travel. As such, the Tribunal places little or no weight on the Applicant’s parent’s medical situation.
The Tribunal acknowledges that the Applicant’s wife will be in a difficult position should the Applicant be deported. Her commitment to her studies is paramount, however, this is exacerbated by her duties to her husband and to his parents, the latter due mainly to cultural factors. Her dedication to her extended family is commendable but her future is more a factor of circumstances than design. Should the Applicant be deported, the Applicant’s wife, should she choose to follow her husband to Singapore, could probably continue her studies with Curtin University by correspondence. Whether she is able to obtain permanent residency in Australia remains to be seen. However, this factor is not outweighed by the primary considerations in this case.
Impact on victims
Paragraph 12.2 of Direction 65 states:
12.2 Impact on family members
(1)Impact of visa refusal on immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely;
In relation to this issue, the Respondent contends the following in the Respondent’s SOFIC:
47.There is no direct evidence to suggest that the victim of the assault would be adversely affected by a decision to grant the applicant the visa. However it is apparent that the assault had ongoing effects on the victim and that the sentencing Judge noted that the victim is now wary and scared about going to doctors (G13/107).
In the Applicant’s SOFIC, the Applicant contends the following in relation to this issue:
133.The Applicant acknowledges that there was more than one victim of his offences. He recognises and views the whole Alice Springs community as victims of his crime, as well as the wider Australian community, the Medical Practice Board of Australia, the Alice Springs Hospital, Dr Fagan, the Northern Territory government and the University of Adelaide. To these victims he expresses genuine remorse and apology.
134.He recognises that the offences he engaged in were detrimental to the community’s trust in the medical profession, especially given the significant challenges to the provision of health services in central Australia and the Northern Territory.
135.To this end, the Applicant has removed himself from any involvement with medical industries in Australia and has a clear intention to never be professionally involved in a medical-related field again. He is sincerely remorseful for the offences committed and their long-reaching impact on the Australian community and various bodies.
The Tribunal finds that the expectations of the Australian community, in regards to the assault on a patient of Alice Springs hospital, has not diminished over time. The gravity of that offence weighs heavily against granting the Applicant a visa. The fact that the Applicant has remained in Australia and has been free to travel overseas for the 5 years since he was released from prison defies public expectations. The Applicant has acknowledged that the victim of his crimes is the wider Australian community and he attempts appeasement by saying that he no longer works in the medical or associated industries in Australia. What he has not acknowledged is the impact his crimes are to have on his entire family. He is attempting to use his family now as a means to gain sympathy from the Australia community.
Impact on Australia business interests
Paragraph 12.4 of Direction 68 states:
12.4 Impact on Australian business interests
(1) Impact on Australian business interests if the non-citizen’s visa application is refused, noting that an employment link would generally only be given weight where visa refusal would significantly compromise the delivery of a major project or delivery of an important service in Australia.
In relation to this issue, the Applicant contends the following in the Applicant’s SOFIC:
136.Paragraph 11 of the Statement of Reasons states “I am mindful of the principle expressed in the Direction that Australia has a low tolerance for any criminal conduct by visa applicants, particularly those who are not in Australia and have not made any significant contribution to the Australian community…”
137. Mr Cicchini notes in his report:
This point is clearly not applicable to Mr Reddy on two grounds – (1) he is in Australia – notwithstanding some travel – and has been living here for several years subsequent to his release from prison, and (2) my impression is that he has been making significant contributions to the Australian Community by way of his business participation.
The Respondent, in turn, argues the following in the Respondent’s SOFIC:
48.There is no evidence that refusal of the visa would have an impact on Australian business interests such that the refusal would significantly compromise the delivery of a major project or delivery of an important service in Australia (see Direction at 12.4)
49.Accordingly, the Minister submits that no weight should be attached to this consideration in favour of the Applicant.
Should the Tribunal refuse to grant the Applicant his visa, the Tribunal finds that any impact on his business interests are manageable. The percentage of interest by him in Utsavam Pty Ltd, leaseholders of "Tawarri Restaurant and Function Centre, was not explored in depth at the Tribunal. It was noted, however, that he holds the Liquor Licence for the establishment. However, it was also noted that he expressed the intent to have another person obtain a Liquor Licence and Approved Manager certificate to assist in the operation of the business. Should the Applicant be deported, it is assessed that the impact is not insurmountable for the business to continue with another licenced manager, under the directorship of the Applicant’s business partner.
The Applicant also submitted inaccurate documents in September 2016 to the Liquor Licencing authorities, namely, referring to his wife as his defacto partner in two instances, despite their having been formally married on 22 June 2015. The Tribunal saw this as another incident of the Applicant trying to cloud the real issue.
It was noted by the Tribunal that the Applicant is involved in several other “entrepreneurial” business ventures that have yet to materialise into their expected level.
CONCLUSION
The Tribunal notes the overall conclusions of the Respondent, as set out in the Respondent’s SOFIC, as follows:
50.The Minister contends that whilst the impact on family members does not favour refusal, this consideration should be given limited weight in the circumstances of this case and does not outweigh the Principles and considerations weighing in favour of refusal. The applicant is a visa applicant who has committed a serious offence involving assault and fraud; it is the expectation of the Australian community that he should be refused a visa. Further, any risk of further offending by the applicant is unacceptable.
51.For the above reasons, the Minister contends that his delegate’s decision to refuse the applicant a visa is the correct and preferable decision.
The Applicant, through his actions since coming to Australia in 2002, has demonstrated that he holds little regard for Australian law, for Australian standards and Australian expectations. He has instead, by careful design, conducted himself poorly, committing minor offences and a number of major offences which are considered unacceptable. His reasoning that he was suffering from an undiagnosed condition of Bipolar Disorder is not supported until after he committed the serious crimes for which he was convicted in 2010. He did however, appear to continue to offend, albeit only minor offences through 2012 to 2014, even though he was purportedly under appropriate medication.
The impact on the Applicant’s family is appreciated, however, it is not for the Australian community to bear the circumstances of the Applicant’s cultural heritage when assessing whether his visa should be cancelled.
Although some considerations do weigh in the Applicant’s favour, on balance, these are outweighed by the primary considerations, which are to be afforded greater weight.
On the evidence before it, the Tribunal finds that having regard to all the primary considerations and other relevant considerations of Direction 65, the correct and preferable decision is to refuse to grant the Applicant a visa.
DECISION
For the above reasons, the Tribunal affirms the decision under review.
ANNEXURE A
TO DECISION 2016/5215
DATEDDECEMBER 2016
LIST OF EVIDENTIARY DOCUMENTS
Respondent’s Exhibits
R1 – G Docs
R2 – Respondent’s Statement of Facts, Issues and Contentions (SoFIC)
R3 – PROMIS 4480756 – Summons to Produce Documents Northern Territory Police
R4 – PROMIS 4764040 – Summons to Produce Documents File 5215/2016
R5 – Bundle of Case Notes SA Police and NT Police – 18 pages
R6 – Bundle - Precis of Motor Vehicle Registration Documents NT Police – 19 pages
R7 – Log 170 –
R8 – Possession of Poison – 1 page
R9 – Bundle of various Documents From Northern territory Police – 55 pages
Applicant’s Exhibits
A1 – Applicant‘s Statement of Facts, Issues and Contentions (SoFIC)
A2 – Bundle including Applicant’s Family Statements and Doctors Reports
A3 – Health requirements under Public Interest Criterion (PIC) 4005
A4 – Statement From Mr Mereddy dated 23 November 2016
A5 – Notification of Grant of a Return (Resident) (class BB) subclass 155) Visa - father
A6 - Notification of Grant of a Return (Resident) (class BB) subclass 155) Visa - mother
A7 – Update Report from Mr Cicchini dated 24 November 2016

I certify that the preceding 123 (one hundred and twenty three) paragraphs are a true copy of the reasons for the decision herein of Mr Warren Evans, Member.
....[Sgd]............................................
Administrative Assistant
Dated 19 December 2016

Date of hearing 8 and 9 December 2016

Counsel for the Applicant Mr M Crowley

Representative of the Applicant Mr D Estrin

Solicitors for the Applicant Saul Estrin

Representative of the Respondent Mr A Burgess

Solicitors for the Respondent Sparke Helmore

[2016] AATA 1043

19 December 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction

Division	GENERAL DIVISION
File Number	2016/5215
Re	Brian Reddy
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

Tribunal	Mr Warren Evans, Member
Date	19 December 2016
Place	Perth

Date of hearing	8 and 9 December 2016
Counsel for the Applicant	Mr M Crowley
Representative of the Applicant	Mr D Estrin
Solicitors for the Applicant	Saul Estrin
Representative of the Respondent	Mr A Burgess
Solicitors for the Respondent	Sparke Helmore