Sandhu and Minister for Immigration and Border Protection (Migration)
[2017] AATA 1387
•29 August 2017
Sandhu and Minister for Immigration and Border Protection (Migration) [2017] AATA 1387 (29 August 2017)
Division:GENERAL DIVISION
File Number(s): 2017/3403
Re:Hazoor Sandhu
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:29 August 2017
Place:Brisbane
I affirm the decision under review.
........................................................................
Deputy President Dr P McDermott RFD
CATCHWORDS
MIGRATION – application for visa refused on character grounds – applicant does not pass the character test – risk that the applicant would commit offences – the protection of the Australian community from criminal or other serious conduct relevant – expectations of Australian community not met – other considerations relevant – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
SECONDARY MATERIALS
Direction No. 65 – Migration Act 1958 – Direction under section 499 “Visa Refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA”
CASES
Brown v Minister for Immigration and Citizenship (2009) 112 ALD 67; [2009] FCA 1098
Brown v Minister for Immigration and Citizenship (2010) 265 ALR 668
Aksu v Minister for Immigration and Multicultural Affairs (2001) 65 ALD 667
Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
29 August 2017
INTRODUCTION
On 15 May 2017 a delegate of the Minister made a decision under the Migration Act 1958 (the Act) to refuse to grant the applicant a Partner (Temporary) (Class UK) visa.
On 12 June 2017 the applicant made an application to this Tribunal to review the decision of the delegate.
BACKGROUND
The applicant is a citizen of India. He first entered Australia on a student visa on 27 April 2008 which expired on 28 February 2011. After that date the applicant remained unlawfully in Australia. On 10 November 2011 he lodged an application for a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa. On 23 December 2011 he was granted a bridging visa whilst his application for the visa was being processed.
On 6 April 2017 the applicant was issued a notice of intention to consider refusal of his application for a Partner (Temporary) (Class UK) visa. The applicant made representations in response to that notice of intention.
On 15 May 2017 a delegate of the Minister refused the applicant’s application for a Partner (Temporary) (Class UK) visa in accordance with section 501(1) of the Act. The delegate considered that the applicant was not of good character and did not pass the character test under s 501(1)(6)(i) of the Migration Act 1958. The delegate had decided to exercise the discretion to refuse the application.
CRIMINAL HISTORY
In evidence is a National Police Certificate dated 7 September 2016 which contains the criminal history of the applicant.
On 5 June 2009 the applicant appeared before the Brisbane Magistrates Court where he was charged with three counts of sexual assault. No conviction was recorded and he was given an 18 month probation period.
On 8 January 2013 the applicant appeared before the Brisbane Magistrates Court where he was fined $200 for contravention of release conditions with no conviction recorded.
On 10 June 2015 the applicant appeared before the Toowoomba Magistrates Court and was convicted of common assault and was fined $1,500.
LEGISLATIVE FRAMEWORK
Section 501(1) of the Act provides:
(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
...
(6) For the purposes of this section, a person does not pass the character test if:
…
(d) in the event that the person were allowed to enter or remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia
Otherwise, the person passes the “character test”: section 501(6).
Section 499 of the Act provides:
(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
...
(2A) A person or body must comply with a direction under subsection (1).
On 22 December 2014 the Minister issued Direction No. 65 under section 499 of the Act which binds decision-makers who have to consider whether to refuse or cancel a non-citizens visa under section 501 of the Act.
Paragraph 6.2 of Direction 65 sets out General Guidance to decision-makers:
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction No. 65 sets out the Principles:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk 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.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of 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.
THE CHARACTER TEST
The Act provides that a person does not pass the character test if, in the event the person were allowed to enter or remain in Australia, there is a risk that the person would engage in criminal conduct in Australia: see section 501(6)(d) of the Act.
In order to make a finding that a person does not pass the character test, there must an assessment of the risk in regards to future conduct: see Direction No. 65 at Annexure A, Section 2, paragraph 6(2) where it states that grounds for ‘risk’ are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that if the person, if allowed to enter or remain in Australia, would engage in criminal conduct. A finding of a person’s previous engagement is not sufficient for a decision-maker to find that the person has engaged in conduct contemplated by the section. It is necessary to identify a risk that the person would engage in such conduct set out in section 501(6)(d) of the Act in the future.
In 2009, the applicant was granted 18 months’ probation in respect of three counts of sexual assault. The evidence from the statutory declarations of the applicant dated 31 July 2015 is that these offences occurred when the applicant “was out drinking and partying” and when he “was drunk so I didn’t know what I was doing”. He also asserted that he “accidentally sexually touched a girl”. These statements do not really describe the circumstances of these three offences which I am satisfied are accurately described in the summonsed material from Queensland Police.
First sexual assault
The first sexual assault was committed in October 2008. The applicant stood some 30 cm from the victim who became concerned about the applicant being in her personal space. The applicant blocked the victim’s path and the victim screamed. The applicant then grabbed the victim and squeezed her right breast really tight. The victim was in some pain and pulled away from the applicant who then walked away at a fast pace.
The circumstances of the offence are recorded in the summonsed material as follows:
The defendant had finished work and made his way by bus to the city and was to walk over the story bridge to be picked up by his uncle who was going to give him a lift.
The [defendant] observed the victim and walked towards her and stood in front of her, at first the victim thought she must have known the defendant as he walked straight up to her. The defendant stood about thirty centimetres from the victim, at which time the victim became concerned about the defendant being in her personal space.
The defendant blocked the victim path, preventing her from going, the victim became tense from the defendant’s behaviour and tensed, the victim then screamed.
The defendant showed no reaction at all when the victim screamed. The defendant then grabbed the victim on her right breast and squeezed it really tight. At this time the victim felt a bit of pain, and pulled away from the defendant.
The victim was effected [sic] emotionally by the defendants [sic] actions, and cried, and screaming out at the defendant as he walked away.
The defendant walked away at a fast pace, and walked across the story bridge, where he meet [sic] his uncle.
On the 4th of November 2008, the defendant was attended the Brisbane City Police Station in relation to another matter. The defendant took part in a record of interview and made admissions to grabbing the victims [sic] breast without her permission.
The defendant was later transported to the Brisbane City watchouse [sic] and charged with this and another matter.
Second sexual assault
The second sexual assault was committed on a later date in October 2008. The applicant stated that this assault occurred after his consumption of alcohol. The circumstances of the offence are recorded in the summonsed material as follows:
… the complainant was walking… when she was approached by the defendant who engaged her in conversation. The defendant then placed his arm around the complainant and began to walk beside her... The complainant became concerned by the defendants [sic] behaviour and contacted her boyfriend by mobile phone. The complainant was so fearful for her safety that she did not want to anger the defendant and continued to walk… in the hope he would cease his behaviour and leave her alone. The defendant has then began to play with the victims top and touch her on the right side of her breast. The defendant was extremely fearful for her safety and attempted to shrug away from the defendant. This cause the defendant to stop playing with her top, however his arm still remained around her shoulder.
The victim has then walked into a… store…in an attempt to get away from the defendant, however he followed her in to the store. The victim has then walked out of the store and proceeded to walk to her work... Whist walking the victim has again attempted to shrug away from the defendant however he has tightened her [sic] grip and held on whilst she continued to walk.
Upon reaching… the victim has told the defendant that she was going to work at which point, without warning or consent, the defendant has lent in and kissed her on the cheek. The victim has then turned around to walk into her building, whereupon the defendant has reached around from behind the victim and grabbed her on the right breast.
The defendant has then decamped…and the victim has immediately contacted police. Shortly after police from City CIB attended and inquiries were conducted in relation to the identity of the defendant.
On the 5th day of November 2008 after inquiries made, police from City CIB located the defendant and he voluntarily accompanied police back to City Police Station where he particpated [sic] in an electronic record of interview. The defendant admitted to placing his arm around the victim and touching her on the breast. The defendant further admitted that he had no permission or authority to do so.
The defendant was subsequently issued with a notice to appear to attend the Brisbane Magistrates Court…
Third sexual assault
The third sexual assault was committed on the evening of the second sexual assault in October 2008. The circumstances of the offence are recorded in the summonsed material as follows:
…the defendant… noticed a female who is not known to him.
The defendant has approached the victim and touched her breast by pressing the breast.
The unknown victim has screamed at the defendant, and was angry towards the defendant for his actions.
The defendant has then still followed the victim for a short distance and left the area a short time later.
On the 4th of November 2008, the defendant was at the Brisbane City Police station in relation to another matter and took part in a record of interview.
The defendant told Police that the female was about 20 to 25 years of age, with golden hair and white skin. The defendant told Police he did not know why he touched her and that I was wrong and not good for the girl. The defendant only told Police that [he] saw the victim, being a girl had little clothes, which showed her breast and that she looked sexy.
The defendant admitted this offence to Police to clear his conscious [sic] and he told Police he had ‘dirty’ thoughts.
The facts of these three sexual assaults were read out to the applicant who agreed that each of the victims did not consent to him touching them. I am concerned that the applicant has not fully accepted responsibility for three sexual assault offences. This is because in his statutory declaration of 31 July 2015 he declared that in 2008: “I accidentally sexually touched a girl”.
Common assault
On 10 June 2015 the applicant appeared before the Toowoomba Magistrates Court and was convicted of common assault and was fined $1,500. The circumstances of the offence that was committed in February 2015 are recorded in the summonsed material.
The victim was a female and stated the circumstances which occurred after midnight on the evening as follows. The victim stated she was awoken by a hand on the outside of the upper thigh, and had felt someone pulling her by the shoulder. The victim grabbed a phone and used it to light the person who had grabbed her. The victim identified a male of Indian appearance and a tribal style tattoo. That person apologised and left the room. The victim locked the door and called a friend. Police then attended the hospital and took up with the victim who informed them that she had been sexually molested. Police then arranged for blood tests.
The partner of the applicant in her statutory declaration dated 5 May 2017 has referred to the assault as a “sexual assault”. In her statutory declaration the partner stated that she went to court to support the applicant. In giving evidence his partner stated that she referred to the assault as a “sexual assault” because she was aware of the circumstances of the common assault charge.
I do not accept the assertion of the applicant that he was not aware that the victim of the assault was sleeping in the bedroom of his roommate. There is no suggestion of this in the contemporaneous documents which reveal that the roommate took the victim into the house of the applicant and left her to sleep in his bedroom when he went to work. I do not accept the assertion of the applicant the he was only in the bedroom of his roommate for a matter of seconds. The applicant and his partner, when giving evidence, gave different accounts as to the amount of time that the applicant was in the bedroom; the applicant asserted that he was in the room for a few seconds while his partner stated that he was in the bedroom for a few minutes.
The applicant in giving evidence asserted that he was in the bedroom of his roommate searching for a lighter. In his statutory declaration of 31 July 2015 the applicant declared that he was searching for a lighter in a dark room. This assertion does not appear to be plausible. If the applicant was searching for a lighter and he did not know if anybody was in the bedroom there is no reason why he would not switch on the light of the bedroom.
The applicant in his statutory declaration of 5 May 2017 acknowledged that his “behaviour in 2008, 2011 and 2015 was unacceptable and inappropriate”. Whilst in his statutory declaration the applicant refers to his behaviour in 2015 as “unacceptable and inappropriate”, in his earlier statutory declaration of 31 July 2015 he asserts that he “accidentally touched the girl”. This indicates that the applicant has not at the earliest opportunity taken responsibility for his actions.
I do not accept the explanation of the applicant that this was an accidental assault. I have had regard to the fact that the victim of the 2015 assault indicated she was sexually molested and blood tests were taken from the victim. I also consider that the assault was not accidental because the victim was advised to make the complaint to the police, this was verified by the partner of the applicant. The applicant also stated in one of his statutory declarations of 31 July 2015 that his earlier sexual assault offences in 2008 were accidental in nature, despite the fact that the summonsed documents indicate otherwise.
Rehabilitation
In his statutory declaration of 5 May 2017 the applicant stated that he has never sought professional help, he gave no reasons why he has not sought professional help. He also in that statutory declaration has stated that when he was on probation he was not referred to see a therapist or to participate in any programs. It is a matter of concern that the applicant has never sought professional help on his own initiative even after the 2015 conviction. This means that the applicant has not received the benefit of any professional strategies to enable him to cope with his drinking problem. The need of the applicant to seek professional help is also apparent from the fact that there is evidence that the applicant has a temper. This is evident from the statutory declaration of Indeerjeet Singh and the statutory declaration of his partner.
Domestic Violence
The partner of the applicant was taken to the summonsed material which records that on 27 December 2012 the partner of the applicant was slapped twice in the face by the applicant and the partner then adopted a foetal position on the couch to protect herself. The partner agreed that the applicant did slap her twice. In her re-examination the partner again asserted as she did in her evidence-in-chief that she has not been assaulted by the applicant but I give this assertion little weight in view of her earlier statement that the summonsed records correctly records that the applicant had twice slapped her. I am therefore satisfied that the applicant slapped his partner.
The summonsed material also records that the applicant had more than 12 months previously grabbed the jaw of the partner. The evidence before me was that the partner had agreed that the applicant had held her jaw. The applicant was given conditions and released after a domestically violent incident on 27 December 2012 when he slapped his partner in the head twice and damaged the television in the dining room. The release conditions are those that the arresting police officer considers are necessary or desirable to protect a person from domestic violence. In this case, the release conditions given to the applicant after the December incident were for the applicant to be of good behaviour towards his partner and not commit acts of domestic violence.
It was not long after the applicant had been released that there was another domestic violence incident on 7 January 2013 when the police attended the household where the applicant and his partner had an argument in relation to his drinking alcohol. The partner agreed that the applicant was then holding a knife and broke a fish tank. On 8 January 2013 the applicant appeared before the Brisbane Magistrates Court where he was fined $200 for the breach of section 179(2) of the Domestic and Family Violence Protection Act 2012 for the contravention of release conditions. This provision applies where a respondent has been released by a police officer on release conditions under section 125 of that Act. On 7 January 2013 the applicant contravened these release conditions when he and his partner had a verbal argument in relation to the applicant drinking alcohol, which escalated. The summonsed documents record that the applicant “became enraged smashing items of property in the house and brandishing a large knife while yelling”. While the applicant took issue with the use of the expression “brandishing”, the partner of the applicant nevertheless agreed that the applicant was on that occasion holding a knife.
Assessment of future risk
There are similarities between the circumstances of the 2008 charges and the 2015 charge as the applicant asserted that he was under the influence of alcohol on both occasions. The applicant’s misuse of alcohol certainly does not excuse his behaviour. After the applicant was brought before the court in 2009, he does not appear to have taken concrete steps to rehabilitate himself. He had not taken steps to avoid the use of alcohol and this causes me to find that there is a risk that if the applicant was drinking he would again commit an assault upon a female if the opportunity presented itself.
In my assessment of risk I am concerned about the use of alcohol by the applicant. In his statutory declaration dated 5 May 2017, Mr Indeerjeet Singh declares that since 2013 the applicant has worked hard on dealing with his drinking. However, the latest offence was committed when he had been drinking. I am not satisfied that the applicant had taken steps to avoid the use of alcohol which he asserts was an influence for his three sexual assaults. I am mindful that the employer of the applicant required that the applicant was subject to alcohol and drug tests which are held on an annual basis. I would assume that those tests would be administered during working hours. The latest offence occurred shortly after midnight on 20 February 2015. The applicant had been drinking alcohol when there was the domestic violence incident on the evening of 7 January 2013.
After having considered the evidence before me I have come to the conclusion that if the applicant is allowed to remain in Australia there is a more than a minimal or remote chance that he would engage in criminal conduct. In his statutory declaration of 31 July 2015 the applicant stated that he was “staying away from alcohol”. However there is no cogent evidence that the applicant would abstain from alcohol. On that basis I consider there is more than a minimal or remote chance he would commit a further assault against a female if the opportunity presented itself and he had been drinking I also consider that there is such a risk that he would engage in domestic violence if he had been drinking.
I also consider that there is a risk of the person engaging in conduct for which a criminal conviction could be recorded: see Direction 65, Annexure A, paragraph 6.1(2). On the last occasion when he appeared in court a conviction was recorded. I do not consider that it is likely that a conviction would not be recorded if he again appeared in court.
In evidence there are a number of character references in support of the application by the applicant. I have not given great weight to these references because in none of those references have the referees outlined the full nature of the offences committed by the applicant. For example, Inderjeet Singh in his statutory declarations dated 2 and 5 May 2017 stated that the sexual assault charges related to the applicant kissing a girl without consent. In a statutory declaration dated 22 June 2017 Sarabjit Singh said that the applicant had three offences where he was involved in a fight under the influence of alcohol; there was no evidence of these offences before the Tribunal.
The applicant called two character witnesses to give evidence. Ms Johnson who is a friend of the applicant was not aware of the nature of the offences committed by the applicant. Ms Johnson did not accept that the applicant could touch female victims without their consent. Mr Keane first met the applicant when he was a Parliamentary candidate. However, Mr Keane was unaware of the extent of the criminal conduct of the applicant and did not know of the details of the domestic violence history. He was also not aware of the circumstances of the 2015 incident as he thought that the applicant had been in the bedroom of his roommate to get a charger.
For these reasons, I am satisfied that the applicant does not pass the character test having regard to section 501(6)(d) of the Act.
SHOULD THE DISCRETION TO REFUSE THE APPLICATION FOR A VISA BE EXERCISED
Once this Tribunal makes a finding that the applicant does not pass the character test, it is necessary that the Tribunal proceed to consider whether or not to exercise the discretion to refuse the application for a visa. The Federal Court of Australia has emphasised the importance of following the two-step process mandated by section 501 of the Act.[1]
[1] Brown v Minister for Immigration and Citizenship (2009) 112 ALD 67 at 69; [2009] FCA 1098 at [16] (Edmonds J); Brown v Minister for Immigration and Citizenship (2010) 265 ALR 668 at 674 (Nicholas J, Moore and Rares JJ agreeing); Aksu v Minister for Immigration and Multicultural Affairs (2001) 65 ALD 667 at 674 (Dowsett J), quoted with approval in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 at 523 (Kiefel and Bennett JJ).
Primary considerations
The primary considerations are set out in paragraph 11 of Direction No. 65. They are:
(a) Protection of the Australian community;
(b) The best interests of minor children in Australia;
(c) Expectations of the Australian Community.
Primary consideration 1: Protection of the Australian community
Paragraph 11.1 of the Direction provides that “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.” The Direction requires consideration as to the nature and seriousness of the applicant’s conduct to date and the risk to the Australian community should the applicant commit further offences or engage in other serious conduct.
Paragraph 11.1.1 of Direction 65 provides that decision-makers must have regard to the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date:
(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 section 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 section 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.
I have already stated why I am satisfied that the recent offence of which the applicant is a crime of a sexual nature and is serious. Because the complainant was asleep at the time of the offence I find that it was a crime involving a vulnerable member of the community. A person who is assaulted whilst they are sleeping is certainly vulnerable.
The applicant has committed a number of offences of a sexual nature. I have already found that there is a risk that the applicant would in the future commit an assault or engage in domestic violence. In my opinion the harm that would be caused if this conduct were to be repeated is so serious that any risk that it may be repeated is unacceptable: see Direction No. 65, paragraph 9.1.2(1). It is a matter of concern that in the domestic violence incident on 7 January 2013 the applicant held a knife while he was drunk. This consideration weighs heavily in favour of the refusal of a visa.
Primary consideration 2: Best interests of minor children in Australia
Under paragraph 11.2 of Direction No. 65 decision-makers are required to make a determination about whether refusal of a visa is, or is not, in the best interests of the child. 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.
There is no evidence before me that the applicant has any involvement with any children under the age of 18 and this primary consideration has no relevance.
Primary consideration 3: the expectations of the Australian Community
Under paragraph 11.3 of the Direction, it may be appropriate to refuse a visa application where there is an unacceptable risk that an applicant will breach the trust of the Australian community, 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.
Members of the Australian community have to trust that students who are studying on visas in Australia will obey relevant State criminal laws, and will not overstay visas in breach of our migration laws.
The applicant has breached the trust of the Australian community when he committed his string of sexual assaults in 2008, while legally present in Australia on a student visa. The applicant then breached the trust of the Australian community when he continued to stay in Australia when his student visa expired in 2011.
I consider that the risk of the applicant engaging in assaults of a sexual nature and domestic violence to be such that the Australian community would expect that a permanent visa not be granted. I also consider that the Australian community would expect that a permanent visa should not be granted where the applicant has had the benefit of probation in relation to his three sexual assault offences and yet continues to reoffend.
Other considerations
Paragraph 12 of the Direction refers to the “Other considerations – visa applicants” which need to be considered. 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 first sentence of paragraph 12 states that “In deciding whether to cancel a visa, other considerations must be taken into account where relevant.” This paragraph also applies to where a visa has not been granted as the heading to this paragraph refers to visa applicants.
International non-refoulement obligations
The evidence before me does not indicate any international non-refoulement obligations referred to in paragraph 12.1 of Direction No. 65.
Impact on family members
Under paragraph 12.2 of Direction No. 65 there must be consideration of the 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.
The wife of the applicant is an Australian citizen and her parents live in Australia. She has stated that she would be heartbroken if the applicant was sent back to India. She stated that there would be difficulties of saying goodbye to her friends and family as well as the culture shock. She has, however, stated that she would go with him to India. She has referred to the difficulty of her losing her dogs.
This other consideration weighs heavily in favour of not refusing the visa.
Impact on victims
Direction No. 65 at paragraph 12.3 requires consideration of any impact of a decision to grant a visa on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where that information is available and can be disclosed to the non-citizen being considered for visa refusal.
On the evidence before me I am not able to make any finding in relation to the impact on victims if there is a decision to grant or refuse a visa to the applicant.
Impact on Australian business interests
Direction No. 65 states at paragraph 12.4 the consideration that must be given to any impact on Australian business interests, if the non-citizen’s visa application is refused.
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. While the applicant has worked with a courier and logistics company and there is evidence that he is a valuable employee with that company, there is no evidence that his absence would significantly compromise the delivery of a major project or delivery of an important service in Australia.
Therefore there is no evidence that a refusal to grant a visa would have any impact on Australian business interests.
CONCLUSION
I am required to have regard to the Principles in paragraph 6.3 of Direction No. 65 in considering whether to exercise the discretion to grant or refuse the application for a visa. One of those Principles include that being able to come to Australia is a privilege conferred on non-citizens “in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community”.
The Principles state that a non-citizen who has committed a crime of a violent or sexual nature and against vulnerable members of the community should generally expect to forfeit the privilege of staying in this country. This Principle has particular relevance to this application. The applicant has been fined for the infringement of a domestic violence release condition that was imposed after he assaulted his partner and broke a television set. The fact that shortly after that he breached the release condition by yelling at his partner while holding a large knife and smashing items of property is a matter of grave concern; his conduct has certainly been violent. In 2008, in the same year he arrived in Australia, he committed three sexual assaults on different members of the community. On that occasion he was given the benefit of probation. It is concerning that in 2015 he was convicted of common assault which his own partner has recognised as a “sexual assault”. This assault was committed against a woman who was vulnerable as she was asleep at the time when the assault was committed, who complained of being sexually molested at the hospital and underwent blood tests.
The primary considerations of the protection of the Australian community and the expectations of the Australian community outweigh the other consideration of the impact on family members. There is no reason why the primary considerations should not be given greater weight than the other considerations. I would not exercise the discretion to grant the applicant a visa.
DECISION
I affirm the decision made on 15 May 2017 by a delegate of the Minister to refuse to grant the applicant a Partner (Temporary) (Class UK) visa.
I certify that the preceding 68 (sixty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD
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Associate
Dated: 29 August 2017
Date(s) of hearing: 15 August 2017 Solicitors for the Applicant: Coongie Pty Ltd Solicitors for the Respondent: Clayton Utz
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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Natural Justice
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