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

Saran and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1054 (28 April 2021)
Division:GENERAL DIVISION
File Number: 2021/0970
Re:Jasminder Singh Saran
APPLICANT

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

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:28 April 2021
Place:Melbourne

The decision under review is affirmed.
[sgd]........................................................................
Senior Member A. Nikolic AM CSC
Catchwords
MIGRATION – Mandatory visa cancellation – citizen of India – Class SN Subclass 190 Skilled-Nominated (permanent) Visa – confidentiality and non-publication application – failure to pass good character test – sexual offending – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 90 applied – Protection of the Australian community – low but real risk of recidivism – Expectations of the Australian community – best interests of minor child in Australia – impediments if returned not significant – limited links to Australia – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
Ali v Minister for Home Affairs (2020) 380 ALR 393
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 1) (2015) 331 ALR 68
Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104
C7A/2017 v Minister for Immigration and Border Protection (No 2) [2020] FCAFC 70
DFTD v Minister for Home Affairs [2020] FCA 859
Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333
FYBR v Minister for Home Affairs (2019) 272 FCR 454
HVLC v Minister for Home Affairs [2019] FCA 616
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Minister for Home Affairs v Omar (2019) 272 FCR 589
Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180
Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219
R v Saran [2019] ACTSC 37
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Viane v Minister for Immigration and Border Protection (2018) 162 ALD 13
Secondary Materials
Administrative Appeals Tribunal, Publication of Decisions (Policy, 24 September 2020)
Direction No. 75 – Refusal of Protection visas Relying on Section 36(1C) and Section 36(2C)(b)
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
28 April 2021
INTRODUCTION

The Applicant, Mr Jasminder Singh Saran, seeks review of a decision not to revoke the mandatory cancellation of his Class SN Subclass 190 Skilled-Nominated (permanent) Visa (the visa).
The hearing was held in Melbourne on 22 April 2021. Parties appeared by audio-visual link and the Applicant was assisted by an interpreter in the Punjabi language. The Tribunal confirmed at the commencement of the hearing that the Applicant and interpreter could clearly understand each other. The Applicant was represented by Mr Gandhi of Gandhi Lawyers. The Minister was represented by Ms Ervin, a solicitor from Clayton Utz.
For the following reasons the Tribunal affirms the decision under review.
CONFIDENTIALITY REQUEST
On 20 April 2021, the Applicant asked for an interlocutory order under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). It was requested that his application be heard in private, his identity be protected, and that the Tribunal restrict publication of its reasons. The request was declined because there were insufficiently cogent reasons to depart from the default position that Tribunal proceedings are administered openly and in public.
At the commencement of the hearing on 22 April 2021, Mr Gandhi made further oral submissions for an order under s 35 of the AAT Act. This was opposed by Ms Ervin. After hearing from both parties, the Tribunal again declined the request and gave ex tempore reasons in the following terms:
(a)Section 35 of the AAT Act, Tribunal policy,[1] and the common law,[2] emphasise the importance of public hearings in the Tribunal;
(b)There is often an inevitable tension between an applicant’s desire for confidentiality, and the Tribunal’s task of making findings on material questions of fact and identifying the evidence or other material on which those findings are based: ss 43(2B) and 43(3) of the AAT Act;
(c)Persuasive grounds were needed to depart from the starting expectation at s 35(1) of the AAT Act, ‘that the hearing of a proceeding before the Tribunal must be in public.’ To exercise the discretion available at ss 35(2)-(4) of the AAT Act, the Tribunal needed to be satisfied that the circumstances of the case were such that the harm arising from publication of the decision outweighed the public interest in publishing the decision;
(d)The Applicant’s request for confidentiality largely centred on the prospect of embarrassment and reputational damage. The Tribunal noted from online enquiries, however, that the ACT Supreme Court published reasons after the Applicant’s jury trial,[3] which have been further cited and referenced in the last two years;
(e)The Tribunal concluded there were insufficient grounds to depart from the expectation that its proceedings are administered openly and in public. The prospect of embarrassment alone is insufficient[4] and the information the Applicant sought to suppress had already been in the public domain for over two years. It was indicated to the parties, however, that the Tribunal’s practice is to only include information relevant to its findings or otherwise necessary for the cogency of its reasons. There is no reason in the present matter, for example, to refer to the names of the Applicant’s family members. The Tribunal has not done so.
[1] Administrative Appeals Tribunal, Publication of Decisions (Policy, 24 September 2020) < See for example, Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741, [8] (Edelman J); C7A/2017 v Minister for Immigration and Border Protection (No 2) [2020] FCAFC 70.
[3] R v Saran [2019] ACTSC 37.
[4] Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 1) (2015) 331 ALR 68, [30] (Foster J).

BACKGROUND

The Applicant is a citizen of India.[5] After completing his secondary studies and working for a time, he relocated to a European country at the age of 25, where he lived and worked for approximately six years.

[5] Exhibit A1, 1 [3].

The Applicant’s wife arrived in Australia in 2014 to study. She and the Applicant had known each other since their school years and, as arranged by their families, they returned to India to marry.[6] After the wedding, the Applicant returned to Europe while his wife returned to studies in Australia. Approximately a year later, in June 2015, the Applicant was granted a student dependent visa under his wife’s sponsorship and joined her in Australia.[7] He found work in several roles,[8] while his wife continued her studies and worked part time.[9]

[6] Exhibit R1, 96.

[7] Ibid, 49.

[8] Exhibit A1, 1-2 [6].

[9] Exhibit A2, 1 [9].

The Applicant was granted the visa that was cancelled in this matter on 14 December 2016.[10]

[10] Exhibit R1, 181-183.

Approximately 18 months after arriving in Australia, the Applicant was charged with multiple sexual offences against a female co-worker. These related to incidents over a two-day period in January 2017. The Applicant was charged, arrested, and bailed.[11] His wife had taken leave from the same workplace in anticipation of the birth of their first child, which she delivered a few months later.[12]

[11] Exhibit A1, 2 [8].

[12] Exhibit R1, 97.

The Applicant pleaded not guilty to the charges against him and underwent a jury trial. The jury subsequently delivered a verdict of guilty for seven offences, namely:

(a)Three counts of Sexual intercourse without consent – reckless; and
(b)Four counts of Act of indecency without consent.

The Applicant remained on conditional liberty until sentencing in February 2019. He received a total effective sentence of four years imprisonment, with a non-parole period of two years.[13] He commenced serving his sentence on the same day.[14]

[13] R v Saran [2019] ACTSC 37.

[14] Exhibit R1, 191.

In mid-2019 the Applicant’s wife acquired Australian citizenship.[15]

[15] Ibid, 98.

On 10 January 2020 the Applicant’s visa was mandatorily cancelled on character grounds under s 501(3A) of the Migration Act 1958 (Cth) (the Act) (cancellation decision).[16] He acknowledged receipt on the same day.[17]

[16] Ibid, 51-56.

[17] Ibid, 58.

On 5 February 2020 the Applicant made representations seeking to have the cancellation decision revoked,[18] but on 9 February 2021 was advised by a delegate of the Respondent that this had been refused (non-revocation decision).[19]

[18] Ibid, 59-109; 205.

[19] Ibid, 16-17.

On 18 February 2021, the Applicant asked the Tribunal to review the non-revocation decision.[20]

[20] Ibid, 3-15.

On 22 February 2021 the Applicant was paroled and immediately taken into immigration detention where he has since remained.[21]

[21] Exhibit A1, 3 [15]; Annexure JS-4.

The time that the Tribunal must decide this matter is affected by s 500(6L) of the Act. A decision must be within 84 days of the Applicant being notified of the non-revocation decision in accordance with s 501G(1), or it is deemed to be affirmed. There is no dispute the Applicant was notified on 10 February 2021. This means the 84^th day in this matter is 5 May 2021, which is eight working days after the conclusion of the hearing.

LEGISLATIVE FRAMEWORK

Section 25(1)(a) of the AAT Act and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction to review non-revocation decisions.

Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test and is serving a full-time sentence of imprisonment.

The ‘character test’ is defined in s 501(6) of the Act, with s 501(6)(a) stating:

(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or …

Section 501(7) of the Act sets out six sets of circumstances in which a person is taken to have a substantial criminal record, including if the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).

Under s 501CA(3) of the Act, the Minister is obliged to give notice of a cancellation decision as soon as practicable after it is made, and to invite the affected person to make representations about revocation. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth).

A person whose visa is cancelled under s 501(3A) becomes an unlawful non-citizen within the meaning of s 14 of the Act and is liable to be detained under s 189. Sections 197C and 198 of the Act provide:

197C Australia’s non refoulement obligations irrelevant to removal of unlawful non citizens under section 198
(1) For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(2) An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.
198Removal from Australia of unlawful non‑citizens

…
(2B)     An officer must remove as soon as reasonably practicable an unlawful non‑citizen if:
(a)       a delegate of the Minister has cancelled a visa of the non‑citizen under subsection 501(3A); and
(b)       since the delegate’s decision, the non‑citizen has not made a valid application for a substantive visa that can be granted when the non‑citizen is in the migration zone; and
(c)       in a case where the non‑citizen has been invited, in accordance with section 501CA, to make representations to the Minister about revocation of the delegate’s decision—either:
(i)        the non‑citizen has not made representations in accordance with the invitation and the period for making representations has ended; or
(ii)       the non‑citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the delegate’s decision.
Note:   The only visa that the non‑citizen could apply for is a protection visa or a visa specified in the regulations for the purposes of subsection 501E(2).

Section 501CA(4) of the Act provides a discretion that the Minister may revoke the original decision, if the person whose visa has been cancelled makes representations in accordance with the invitation, and the Minister is satisfied that the person passes the character test, or there is another reason why the original decision should be revoked.

Which Direction?

The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. Section 499(2A) mandates that the Tribunal ‘must’ comply with the Direction.[22] On 8 March 2021, the Minister signed Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction). The Direction commenced on 15 April 2021 and revoked the previous Direction 79 on the same date.[23] The non-revocation decision in this matter was therefore made under a previous Direction, while the hearing and publishing of the Tribunal’s decision occurs after the commencement of a new Direction. Both parties submitted that the Tribunal is bound to follow Direction 90.[24]

[22] BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104, 9 (Collier, Flick and Perry JJ).

[23] Direction, cl 2-3.

[24] Applicant’s Statement of Facts, Issues and Contentions (ASFIC), 4 [21]; Respondent’s Statement of Facts, Issues and Contentions (RSFIC), 3 [8].

The Full Court of the Australian Federal Court (FCAFC) has previously considered this issue during the transition from Direction 55 to Direction 65 in December 2014.[25] Their Honours held that nothing changed for the applicant because a new Direction had come into force and it was open to the applicant in that matter ‘to secure the same outcome from the review, regardless of the fact that Direction No. 65 had replaced Direction No. 55.’[26] Their Honours reasoned at [78]-[82] that:

[78] …the discretionary power in s 501 has remained the same… it is not the content of the Direction which determines the outcome of the exercise of the s 501 discretion, but rather its application by a particular decision maker to the evidence and material in an individual case.
[79] …we do not accept the submission that the revocation of Direction No. 55, and its replacement with Direction No. 65 caused any diminution in the content of the applicant’s rights of review in the Tribunal. There being no amendment to ss 500 or 501 of the Migration Act, those rights were preserved and protected by the Administrative Appeals Tribunal Act itself, making provision for the Tribunal’s review function...
CONCLUSION
[80] The applicant has failed to identify any right, as understood in the light of the authorities, which he had under Direction No. 55 and which he lost by its revocation. Accordingly, in the circumstances of this case, there is in our opinion nothing to which the preservatory effect of s 7(2)(c) of the Acts Interpretation Act could attach.
[81] That being the case, irrespective of whether Direction No. 55 is of an administrative or legislative character, the applicant’s judicial review ground fails on this critical issue.
[82] The Tribunal’s decision in affirming the decision under review by…applying the terms of Direction No. 65, is not affected by any jurisdictional error. The Tribunal, in accordance with its function, properly complied with Direction No. 65.
[25] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461 (Jagroop).
[26] Ibid, [73].

The Tribunal is not constrained to the material before the original decision-maker and is required to engage with the evidence currently before it. There are no accrued rights under the now-revoked Direction 79 and, pursuant to s 499 of the Act, the Tribunal finds it is bound to apply Direction 90 in these reasons.

Direction 90

The following principles at cl 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:

(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.

Clause 6 of the Direction provides that, informed by the principles in cl 5.2, a decision maker must take into account the considerations identified in clauses 8 and 9, where relevant to the decision.

Clause 8 of the Direction identifies the following as primary considerations:

(a)Protection of the Australian community from criminal or other serious conduct;
(b)Whether the conduct engaged in constituted family violence;
(c)The best interests of minor children in Australia;
(d)Expectations of the Australian community.

Clause 9 of the Direction identifies a non-exhaustive list of other considerations:
(a)International non-refoulement obligations;
(b)Extent of impediments if removed;
(c)Impact on victims;
(d)Links to the Australian community, including:
(i)Strength, nature and duration of ties to Australia;
(ii)Impact on Australian business interests.
Clause 7(1) provides that, when taking the relevant considerations into account, ‘Information and evidence from independent and authoritative sources should be given appropriate weight.’
Clause 7(2) states that ‘Primary considerations should generally be given greater weight than the other considerations.’ That does not preclude the Tribunal, however, based on the specific circumstances of each case, to give an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[27]
[27] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
Clause 7(3) states that ‘One or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop at [57]:
… the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501…
DOES THE APPLICANT PASS THE CHARACTER TEST?
Because of his February 2019 convictions and imposition of a sentence exceeding the threshold statutory period of 12 months, the Applicant does not pass the character test. Accordingly, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation decision.
ISSUE TO BE RESOLVED
It remains to be determined under s 501CA(4)(b)(ii) of the Act if there is ‘another reason’ why the cancellation decision should be revoked. In Viane v Minister for Immigration and Border Protection[28] the Federal Court reflected on this task as follows:
There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.
EVIDENCE
[28] (2018) 162 ALD 13, [64] (Colvin J).
Documentary evidence and witnesses
The documents taken into evidence at the hearing were:
(a)G-documents numbering 216 pages;[29]
(b)A bundle of documents produced under summons numbering 61 pages;[30]
(c)Applicant’s Statutory Declaration numbering eight pages and 33 paragraphs declared on 19 April 2021. To this is attached Annexures JS-1 to JS-15. The Statutory Declaration and Annexures collectively number 121 pages;[31] and
(d)Statutory Declaration of the Applicant’s wife numbering six pages and 34 paragraphs declared on 17 April 2021.[32] To this is attached Annexures 1 to 4. The Statutory Declaration and Annexures collectively number 25 pages.[33]
[29] Exhibit R1.
[30] Exhibit R2.
[31] Exhibit A1.
[32] Exhibit A2.
[33] Exhibit A1.
The Applicant and his wife were the only witnesses to give evidence at the hearing.
National Criminal History and sentencing remarks
The Applicant does not dispute the accuracy of his criminal history or sentencing remarks.[34]
[34] Exhibit R1, 34–48.
Applicant’s evidence
The Applicant adopted his Statutory Declaration as true and correct.
Early life
The Applicant said he had a happy, supported childhood. His parents and a sibling continue to live in India, and he has a good relationship with them. The Applicant said that work opportunities in India were limited, so he eventually moved to a European country for a better life. He lived and worked in that European country for six years.
The Applicant said he relocated to Australia to join his wife his wife and to have ‘a good future.’ He readily found work, became a permanent resident in 2016, and described his life as happy and fulfilling. He and his wife attended religious services and engaged in the life of their local community. When his wife fell pregnant, he took her to appointments and assumed more responsibilities around the home.
Offending
The Applicant agreed that his offending occurred within 18 months of arrival in Australia. He also agreed that he has spent four of his six years in Australia under conditional liberty arrangements, in prison, or in immigration detention.
Much of the questioning during the Applicant’s evidence centred on his offending. This arose from the Applicant’s persistent unwillingness to discuss his offending in other than general terms. He repeatedly characterised his seven convictions as a ‘mistake,’ submitting: ‘it’s easy to make a mistake but difficult to pay for the consequences.’ Notwithstanding the Tribunal asking the Applicant several times to be directly relevant to the question being asked, he continued to respond in general terms as follows:
It was a big mistake and I’ve been punished for it…It was a mistake that happened but later on I realised it was a big mistake, but at the time I didn’t realise…People do things that at the time they don’t realise it’s a mistake…Afterwards when I realised the mistake in jail I realised I was wrong…
When asked to elaborate on what aspects of his conduct were a mistake, the Applicant demurred, stating: ‘I just don’t want to go to that place again. The big mistake that I’ve done I’ll never do again. I’ve been punished and just want to start again and have my life again.’ When pressed about what actions he would not repeat, he responded: ‘I would never do any such mistake again.’
The Applicant was asked about references in evidence to him maintaining his innocence from the time he was charged, during two years of bail, a jury trial and until after his imprisonment. He stated that after being charged and bailed he ‘felt this wasn’t right.’ When asked about a pre-sentence report stating he continued to maintain his innocence and did not understand why the jury found him guilty, the Applicant confirmed it was only after commencing his sentence that he ‘reflected on what happened’ and accepted his actions were wrong. He said: ‘everyone was thinking I was the one who was wrong,’ which caused him to accept his guilt. When asked to explain his understanding of why the jury found him guilty, the Applicant stated: ‘Because it was my mistake.’ When again pressed to clarify the specific nature of his offending, he responded: ‘Sex offence – that was the mistake that I did.’ When asked what it was about his actions that broke the law, the Applicant responded: ‘I accept it was my mistake that I forced her to have sex with me.’
The Applicant stated on several occasions that he had already been punished by being sent to prison and felt that repatriation to India would be a continuation of his criminal punishment. This was also referred to in the ASFIC.[35] He said that the conditions of his parole in February 2021 were such that: ‘If I make another mistake, no matter how small, I can go back to jail.’
[35] ASFIC, 6 [28].
Following cross-examination by Ms Ervin and prior to Mr Gandhi’s re-examination, the Tribunal pressed the Applicant to answer questions more specifically about the criminal findings against him. He stated that he was found guilty of ‘three charges related to having sex and four charges relating to touching.’ The Tribunal referred him to Her Honour’s factual findings at trial, which he subsequently accepted. It was put directly to the Applicant that his continuing characterisation of his convictions using the singular term ‘mistake,’ was insufficient to describe the course of conduct he engaged in, which he accepted. The Applicant also agreed that a four-year sentence of imprisonment for someone with a previously clear criminal history reflected the objective seriousness of his crimes.
Remorse
While stating he was ‘sorry to that girl,’ which the Tribunal understood to be a reference to his victim, the Applicant’s remorse during his oral evidence centred on the impact of his offending on himself: ‘I felt that I’d done wrong for my wife, son and family.’ He referred to 25 months of daily reporting to a police station while on bail, the hardships of prison life, feeling distraught after visits from his family, and absence from his child’s life during the last two years as key difficulties confronting him. He claimed to have summoned courage during visits by his family and during telephone calls to put on a brave front, notwithstanding that: ‘inside it was very hard for me.’ When asked by Mr Gandhi whether he had ever thought about what his victim had gone through, the Applicant responded:
If I was in front of her, I’d sincerely apologise. I’ve hurt her and I’m sorry. It was a big mistake and I’m deeply sorry for what happened.
Conduct in custodial environments
The Applicant said he was well behaved in custodial environments, where he worked as a cleaner and in the bakery. He took care not to engage in illegal activities or misconduct and his compliance and good conduct was acknowledged by custodial staff.
Rehabilitation and risk
The Applicant said he had not yet completed a Sex Offender’s Program because this was delivered in a group setting and his limited English skills precluded attendance. He had asked custodial staff on several occasions to do the course, including upon release with the assistance of an interpreter. At one point in his evidence he claimed to have been told that the Sex Offender’s Program was no longer compulsory for him, but no evidence was provided to corroborate that claim. In response to a question from Mr Gandhi, the Applicant said he would be happy to undertake this course if released. The Applicant said he had changed himself by attending other courses in prison and was now focussed on making his and his family’s future better. He claimed to have been assisted by mental health staff in prison to engage more and be positive about his future.
Despite the absence of offence-specific rehabilitation, the Applicant said he had: ‘Mentally prepared myself to be strong and not take me to the same place again.’ When challenged by Ms Ervin to elaborate on why he is now better placed to identify and avoid criminal conduct, the Applicant responded:
It was a big mistake that I apologise for. I’ve lost two years with my son and wife. It’s affected the relationship with my wife. Everyone has suffered. I want to start a new life. I want to provide back to the community and start my life again.
The Applicant recalled the risk assessment undertaken prior to his sentencing, which found him to constitute a ‘low’ risk of sexual and general reoffending. He accepted that at the time of this assessment he had yet to come to terms with his guilt, which he said occurred ‘about two to four weeks’ after his imprisonment.
The Tribunal gave the Applicant an opportunity to explain his offending in the context of protective factors then in place. It was put to him that he was employed, in stable accommodation, in a happy relationship with his wife who was about to give birth to their first child, with no past criminal offending or predisposing factors like drug or alcohol abuse. When asked why those protective factors were insufficient to stop him from committing serious sexual offences, the Applicant responded:
Even I couldn’t understand how it happened…I don’t know what went through my mind.
Interests of wife and child
The Applicant described his wife and now four-year-old child as ‘my life’ and found it hard not to be able to tell them when they could be together. He said his wife forgave him for his offending and visited him regularly with their child prior to the imposition of COVID-19 restrictions. They also talked frequently on the telephone and via video calls. The Applicant said he wanted to see his child grow up, assist his education, and teach him how to play hockey. The child was scheduled to commence school in 2022 and the Applicant considered his best prospects for a happy and fulfilling life were in Australia.
The Applicant said his wife and child moved interstate in early 2021 to live with his wife’s younger brother who is studying in Australia. His wife’s elder sister is married with two children of her own and lives nearby. His wife works fulltime and enjoys a strong, supportive relationship in her new location. This has helped alleviate her stress and loneliness. The Applicant claimed his son was close to his uncle, aunt and two cousins.
The Applicant was asked about the impact on his wife and child if he had to return to India. He initially claimed this would result in their separation, but later accepted that an adverse decision would crystallise a difficult personal choice for them. He explained that his wife has fulltime work and had made a life for herself here. He thought that opportunities for her and their child would be comparatively worse in India. He stated that as Australian citizens, a decision to relocate them to India was akin to taking them away from their country and friends. When asked about references in evidence to him stating that his wife and child would accompany him to India if he is repatriated,[36] the Applicant agreed he wanted to be with his family ‘either in India or Australia,’ but reiterated that his concerns centred on comparatively lesser opportunities in India.
[36] Exhibit A1, Annexure JS-12, Case Note dated 28 August 2020.
Protective factors and future aspirations
The Applicant said if released into the community he would live with his wife and child in the interstate location they recently moved to, in the rented premises she occupies with her brother. He thought that he could get his parole arrangements transferred interstate to accommodate this and wanted to immediately return to work. When asked about the claim in his statement that he and his wife had exhausted ‘all our saving on paying legal costs,’[37] the Applicant explained they had since re-built their savings to approximately $50,000 to $60,000. He and his wife also had superannuation accounts from their work in Australia, but he was unsure of the balances.
[37] Ibid, 7 [32].
Contribution and ties to Australia
The Applicant said he had worked consistently in Europe and Australia, supported his wife throughout her studies, and engaged in religious and community activities. When asked why there was no evidence from his wife’s family members in Australia or others he knew in the community, the Applicant said it was because only his wife and parents knew about his offending. He agreed that his offending soon after arriving in Australia, its consequences, and a dearth of supporting references, reflected a limited contribution to and ties in Australia.
Concerns about repatriation
The Applicant said he did not know where he would live if returned to India. He accepted that his parents and brother have a home in India. When asked about his documentary claims that because of ‘high legal fees,’ he borrowed money from friends in India and now fears retribution if this is not repaid, the Applicant said these loans were repaid a year ago. He provided no evidence to corroborate how much he borrowed, or who from, or why he previously feared harm from these creditors, or when he discharged these debts.
During the hearing the Applicant raised a new claim that if he returned to the part of India where he was raised and where his family live, the ‘general public’ may discover his offending and try to harm him. The Tribunal curtailed discussion of this new claim, which was not contained in the tendered evidence[38] and could not be considered due to the operation of s 500(6H) of the Act.
[38] ASFIC, 11 [46].
When put to the Applicant that it was open to him to live anywhere in India, he said that he did not know what other places to go to. When asked whether relocating to the European country he previously lived in was a potential relocation option, the Applicant said his visa for that country had expired and he had no ‘paperwork’ to return. He said because their child had learned English, relocating to another country would be ‘very difficult.’ He also thought his criminal history may impede him getting a visa for a third country but had not made any enquiries.
Evidence of the Applicant’s wife
The evidence of the Applicant’s wife was genuine and impressive. It is difficult to recall testimony invoking such heartfelt emotions and an understandable desire to move beyond this unfortunate episode of her life. Her Statutory Declaration declared on 17 April 2021 was taken into evidence. The witness’s oral evidence is summarised as follows:
(a)She has multiple tertiary degrees from India and moved to Australia to undertake further studies. She returned to India to marry the Applicant and they eventually commenced a life together in Australia mid-2015;
(b)The witness was eight months pregnant when the Applicant offended. She was shocked and ‘couldn’t imagine this was my husband.’ He told her in an initial telephone call that ‘nothing happened.’ Later after being bailed, he told her the sexual relations with his co-worker were ‘consensual.’ She described this time as ‘incredibly stressful and challenging,’ and felt humiliated, distressed, and angry. Her life has not been normal since and she feels it is only ‘getting harder and harder because of his act.’ She described herself as ‘just surviving’;
(c)Despite this most ‘terrible experience,’ the witness said she has always felt that if the Applicant did the wrong thing, his victim ‘should get justice.’ She said the Applicant had not only humiliated her, but also his victim;
(d)After his arrest the Applicant was dismissed from his employment. The witness felt despondent and isolated after his sentencing and imprisonment. She withdrew from social and friendship groups because she could not confront inevitable questions;
(e)The Applicant had spent a prolonged period on bail and was an ‘excellent father’ who actively participated in their child’s upbringing. His subsequent imprisonment and detention, however, resulted in him being absent for three of their child’s four birthdays. The witness finds it difficult to explain the Applicant’s absence to their child. She fears that prolonged separation has adversely impacted their relationship and is not sure how the child will react when the family reunites;
(f)The witness felt fortunate to receive practical and emotional support from her mother-in-law, who visited from India for protracted periods in 2019 and 2020.[39] Her own mother also visited to provide support. The witness said she took their child to visit the Applicant in prison monthly, which is all she could accommodate with her fulltime work and caring responsibilities. They also spoke on the telephone daily. During the COVID-19 restricted access period, the witness continued to communicate with the Applicant through telephone and video calls;
(g)In early 2021, when the witness’s mother-in-law returned to India, the witness decided to relocate interstate and live with her younger brother who is studying.[40] She has since been employed fulltime.[41] Her sister, sister’s husband and their two young children live nearby. She is grateful for the love and support they provide. The families cooperate in relation to housework and pickup / drop-offs from childcare. Her child has developed a particularly close relationship with his youngest cousin;
(h)The witness testified that it has not been easy to forgive the Applicant. She considers he is remorseful and accepts his assurances about never ‘behaving in the same way again.’ She said her decision to remain as his ‘life partner’ was made for the sake of their child and the Applicant’s ageing parents. In a poignant moment in her evidence, the witness said her child’s life has not been the same as other children and she did not want to inflict any more pain by separating the child from his father;
(i)If the Applicant is repatriated to India, the witness referred to the consequences of her and their child joining him there:
Our child would be deprived of experiencing the Australian way of life and miss future opportunities. My son is an Australian Citizen; this the only home that he knows.[42]
(j)The witness said she had applied to enrol their child in school in 2022, because it was not possible at this stage to make any further plans until the Applicant’s future is determined. She and the Applicant had discussed their options ‘a lot’ and, if she returned to India with him, felt it would be ‘very hard’. The witness believed she could re-start her career in India, but there were many practical difficulties to overcome; particularly in relation to housing and their child adapting to a different way of life with potentially fewer opportunities. In that eventuality, she feels all her hard work in Australia will have been in vain.
PRIMARY CONSIDERATIONS
[39] Exhibit A2, 4-5 [26].
[40] Ibid, 5 [27].
[41] Ibid, 5 [28].
[42] Ibid, 6 [33].
Protection of the Australian community from criminal or other serious conduct

Clause 8.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Tribunal consideration: The nature and seriousness of the conduct
Clause 8.1.1 of the Direction sets out factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other conduct to date. Decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)    violent and/or sexual crimes;
(ii)   crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)    causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)   crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197 A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
The circumstances of the Applicant’s offending are outlined in the sentencing remarks.[43] The Court found that the Applicant’s offending ‘formed part of a continuing course of conduct,’[44] was ‘broadly of mid-range seriousness,’[45] and had a ‘serious and significant impact’[46] upon the victim. The Tribunal adopts Her Honour’s factual findings as follows:[47]
[43] Exhibit R1, 37-48.
[44] Ibid, 40 [19].
[45] Ibid, 40 [20]-[23].
[46] Ibid, 47 [67].
[47] Ibid, 39-40.
On 2 January 2017, the victim and the accused were "teamed" up to work together cleaning hotel rooms.
On the same day, while cleaning hotel rooms, the offender pinched the victim on the face, smacked and touched her on the bottom, and asked her to be his girlfriend. These acts make up Count 1.
On 8 January 2017, the victim and the offender were again teamed up to work together cleaning hotel rooms. The victim gave evidence that when cleaning hotel rooms, the doors of each room were meant to be open. However, when working with the offender, the offender would close the doors.
In the morning of that day, the offender kissed the victim on the face, hugged her and touched her on the bottom. These acts make up Count 3.
In one of the rooms, before lunch, the offender pushed the victim on to a bed, pulled up the victim's t-shit and bra to expose her breasts, and pulled out the waist band of her trousers and looked at her vagina. The victim gave evidence that she tried to push him away, and said "no please don't". These acts make up Count 4.
After lunch, while cleaning a room, the offender again pulled up the victim's t-shirt and bra. He pulled her pants down to her knees then removed his erect penis from his pants and masturbated in front of the victim. He had one hand on the victim's breast while he did this. These acts make up Count 5.
Later, in a different room, the offender pulled up the victim's t-shirt, kissed her breasts, bit her nipple, pushed her legs apart and inserted his penis into her vagina. The offender removed his penis and ejaculated onto the victim's vulva. These acts make up Count 6.
Later again, the offender kissed the victim on the breasts and he put his penis in her vagina from behind. The victim begged the offender "don't". These acts make up Count 7.
Later, the accused pushed the complainant face down on to a glass top table and engaged in penile vaginal intercourse. The victim said "no" and "please don't". This act makes up Count 8.
Tribunal findings: The nature and seriousness of the conduct
The Applicant committed multiple sexual crimes against a woman, which is viewed very seriously: cl 8.1.1(1)(a)(i)-(ii) of the Direction. His offending was not isolated and represents a continuing course of conduct. Its seriousness is evidenced by the imposition of a four-year sentence of imprisonment. Custodial sentences are the most severe sentencing option available to the courts.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Clause 8.1.2(1) of the Direction states:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Clause 8.1.2(2) of the Direction relevantly provides that in assessing the risk posed by the non-citizen 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 on the risk of the noncitizen re-offending; and
(ii) evidence of 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).
…
Criminal history and conduct in custodial environments
Apart from his 2019 convictions, the Tribunal accepts there is no evidence of any other criminal offences or other misconduct by the Applicant in Australia or overseas.[48] He has been a compliant prisoner and detainee.[49] The Applicant’s claims about working as a cleaner and in the prison bakery is corroborated by custodial records.[50] The Applicant also submitted that he received a ‘Minimum (closed) security classification’ while imprisoned,[51] which the Tribunal accepts.
[48] Ibid, 41 [31].
[49] Exhibit A1, Annexure JS-11.
[50] Ibid, Annexures JS-6; JS-7.
[51] Ibid, Annexure JS-10A.
Remorse
The Applicant submitted in his Statutory Declaration that:
I realised my mistakes and the impact of my conduct on the victim and my family, including an extended family. I am very remorseful and regrets my action. This is not my usual character; I have no previous charges or conviction whatsoever. I have been on bail for more than 24 months and 13 days but never breached any of the bail conditions. I have already undergone imprisonment for 2 years for my conduct. I express my apology before you today concerning my action. I had not acted in this way before and has not acted in such a way since this incident. I have promised myself that I will never do anything wrong to bring me into a court of law again.
(Errors in original)
In his oral evidence, the Applicant’s remorse predominantly centred on the adverse impact of his offending on himself and his family. In contrast there was only passing reference to his victim until being asked by Mr Gandhi to respond to the effect his conduct had on her. The Tribunal notes in this regard the Applicant’s inadequate characterisation of his offending as a ‘misunderstanding’ or ‘mistake.’
Recidivism risk
The Applicant submitted he does not pose a risk to the Australian community,[52] and there is ‘no chance’ he will reoffend.[53] It was submitted by Mr Gandhi that the supervisory nature of the Applicant’s parole will act as a protective factor mitigating his recidivism risk.
[52] Exhibit A1, 8 [33].
[53] Exhibit R1, 73.
It was submitted by Mr Gandhi that this primary consideration weighs in the Applicant’s favour because ‘his low risk of reoffending is due to the following non-exhaustive list of reasons’:[54]
[54] ASFIC, 6-7 [30].
a. The Applicant's remorse and insight to his offending;
b. His assessment as of "low risk" of further sexual offending, or offending generally;
c. His exemplary and compliant behaviour whilst incarcerated and in detention;
d. His release on parole at the earliest opportunity after the conclusion of his non-parole period after serving 2 years of the his sentence due to good behaviour;
e. The deterrent effect of being on parole until 21 February 2023 in terms of any further offending in the short term;
f. His lack prior criminal history both in Australia and overseas;
g. His lack of offending or breach of bail conditions in the two years that he lived in the community whilst awaiting trial and sentence;
h. His prospects of rehabilitation which are good as evidenced by his efforts to engage with appropriate programs whilst incarcerated and completing vocational training whilst incarcerated;
i. His employment whilst incarcerated, and desire to provide financially for his family upon release;
j. The deterrent and salutary effect of incarceration and visa cancellation;
k. His now more advanced age at 37 and his desire to be reunited with his wife and child;
l. His prosocial and strong familial support, particularly from his wife who has continued to stay with the Applicant despite the offending in question;
m. As noted in the Sentencing Remarks, the Applicant has multiple protective factors including stable accommodation, positive familial, martial and social relationships, and no substance abuse or mental health issues;
n. With his wife now working full time, the financial pressure on the Applicant has also eased.
(Errors and emphasis in original)
In a Pre-Sentence Report dated 4 December 2018, the Applicant was assessed under the Level of Service Inventory – Revised (LSI-R) framework as constituting a ‘low risk of sexual reoffending.’[55] He was found ineligible for a referral to Restorative Justice, however, because at that time he had not yet ‘taken responsibility for his offending,’ and ‘maintained his innocence for the current offences, and expressed confusion regarding the jury’s verdict.’[56] During sentencing, the Court adopted aspects of the Pre-Sentence Report in the following terms:[57]
[The offender] was assessed as low risk of reoffending. He appears to have multiple protective factors including stable accommodation and employment and positive familial, marital and social relationships. Further he does not appear to have substance abuse issues or mental health issues. His primary criminogenic risks appear to be his sexual offending, financial pressures and a lack of organised activities. Despite his denials, it would be beneficial for him to address his offending behaviour…Should [the offender] engage in appropriate interventions, his risk of reoffending should decrease further.
(Emphasis added)
[55] Exhibit A1, Annexure JS-10.
[56] Ibid.
[57] Exhibit R1, 41 [30].
Rehabilitation
The Applicant submitted that he understands the ‘necessity of undergoing’ the Adult Sex Offender Program,[58] but is yet to do so. There are references in his prison case notes to being ‘assessed for the Sex Offender Program on 13/9/19 but was found unsuitable…[because]…of his poor English skills.’[59] The Applicant was given a continuing ‘Medium’ classification by the Sentence Planning Group in June 2020, because he was ‘yet to commence offence specific interventions.’[60] Case notes in evidence refer to the Applicant making enquiries about the availability of a Sex Offender’s Program upon his release, and whether this could be delivered to him in his language or through an interpreter.[61]
[58] Exhibit A1, 5 [24].
[59] Ibid, Annexure JS-12.
[60] Ibid, Annexure JS-11, 3.
[61] Ibid, Annexure JS-12, case notes dated 25 February 2020; 5 November 2020; 18 November 2020; 4 December 2020.
Education and training
The Applicant has undertaken education and training while imprisoned, which is evidenced by the certificates and letters at Annexures JS-5, JS-6, JS-8, and JS-9 of his Statutory Declaration. This includes continuing efforts to improve his English skills, and Certificate-level courses in Baking and Skills for Work and Vocational Pathways. He worked in the prison bakery, where he is reported to have been a reliable and enthusiastic team member with a positive work ethic. Certificates in evidence include completion of:[62]
(a)Hepatitis Education and Prevention session on 5 February 2020;
(b)First Steps to Anger Management Program on 3 April 2020;
(c)Self-paced program titled ‘Keeping Myself Well’ on 25 November 2020;
(d)Self-paced booklet titled ‘Goal Setting’ on 25 November 2020;
(e)Self-paced booklet titled ‘Introduction to Recovery’ on 1 December 2020;
(f)Self-paced booklet titled ‘Conflict Resolution’ on 2 December 2020;
(g)Self-paced program titled ‘Self Esteem’ on 2 December 2020.
[62] Ibid, Annexure JS-8; JS-9.
Letter from Official Visitor, Corrections
The Tribunal acknowledges an undated letter from the Official Visitor, Corrections at the prison where the Applicant served his sentence.[63] The Tribunal places little weight on this letter in circumstances where the author could not be cross-examined and the letter contained several factual inaccuracies. For example, the letter refers to the Applicant’s offending as a ‘one off incident,’ and erroneously refers to both he and his wife previously residing in Europe for six years.
Tribunal findings: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
[63] Exhibit R1, 12-14.
The Tribunal does not accept the contention on the Applicant’s behalf that this primary consideration ‘weighs in favour of the Applicant.’[64]
[64] ASFIC, 7 [31]; 13 [61].
The Applicant has been convicted of and sentenced by final judgement for multiple sexual crimes within the meaning of ‘serious Australian offences:’ s 5 of the Act. Should he engage in similar crimes, this could result in significant physical or psychological harm. This finding arises from the sentencing remarks and the Court’s consideration of a Victim Impact Statement dated 11 October 2018, which reflected the ‘extremely serious effects’ of sexual offences on victims.[65]
[65] Ibid, 40 [16].
The Applicant committed his crimes when his wife was heavily pregnant. He was employed at the time and his wife was on leave from work in anticipation of their first child being born. The couple had stable accommodation and considerable savings, with plans to purchase a home. The Applicant had no past offending or predisposing issues like drug or alcohol misuse. Notwithstanding these protective factors, he committed very serious sexual offences. It is noteworthy that the protective factors the Applicant now invokes largely correlate with those in place at the time of his offending. It is of concern that even at the present hearing the Applicant still cannot ‘understand how it happened.’
The Tribunal acknowledges the Applicant was in the community for approximately two years on bail before his trial and remained law-abiding during this period of conditional liberty. Little weight is placed, however, on law-abiding conduct while awaiting trial for serious crimes. The Tribunal also acknowledges the Applicant was law-abiding in custodial settings, where he engaged in work, efforts to improve his English, and vocational training. This is to his credit.
The evidence discloses the Applicant’s unwillingness to accept his guilt, including for a period after his jury trial and imprisonment. It has been a relatively short time since the Applicant said he finally accepted his guilt.
The Applicant has lived in Australia for six years but has been unable to improve his English sufficiently to undertake the Sex Offender’s Program. The Tribunal accepts his evidence that this is offered in a group setting and an ability to communicate in English is a requirement for effective participation. Despite his evidence about interaction with mental health supports while imprisoned, there is no evidence the Applicant has taken other steps, such as seeking counselling through mental health supports in custodial settings, to further progress his rehabilitation needs. He instead submits that he would undertake a Sex Offender’s Program when released. There is no evidence, however, that this is possible in his preferred language or through an interpreter.
As things currently stand, the Applicant is yet to undertake the sort of ‘appropriate interventions’ presented to the Court as beneficial to addressing his offending behaviour, and to further ameliorate his recidivism risk.[66] The Tribunal considers this Program is particularly important in the Applicant’s case, where he is still unable to understand how the offending happened. It is important to note, however, that decisions should not be delayed for rehabilitative courses to be undertaken: cl 8.1.2(2)(b)(ii) of the Direction.
[66] Ibid, 41 [30].
The Tribunal considers the offending the Applicant engaged in falls into a category of harm where any risk of repeat is unacceptable: cl 8.1.2(1). That is particularly so given his past denial of his offending, failure to undertake offence-specific rehabilitation, and inability to explain why his offending occurred despite considerable supports. The totality of his evidence conveys incomplete insight and an inability to yet come to terms with the gravity of harm caused to his victim. This provides little comfort when considering his future recidivism risk.
The Tribunal accepts that the Applicant’s risk of engaging in further criminal conduct is low, but considers it is a real risk, rather than one that is remote or fanciful. The harm that would be caused by a repeat of his offending is so grave as to render it unacceptable. This primary consideration weighs substantially against revocation.
Family violence committed by the non-citizen

The Applicant’s ties and contribution to Australia are limited at best. In the event of an adverse decision he would be confronted by the challenges of having to re-establish himself in India, which he left over a decade ago. This would crystalise a difficult personal choice for his wife, who is now an Australian citizen with an Australian-born child. The evidence discloses that although she would prefer not to leave Australia, accompanying the Applicant with their child to India remains in active contemplation.
Having weighed the relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the decision to cancel the Applicant’s visa should be revoked. That is because ‘Protection of the Australian community’ and ‘Expectations of the Australian community’ substantially outweigh the combined weight to be given to the primary consideration Best interests of minor children in Australia, and the relevant other considerations in this matter.
DECISION
It follows that the Tribunal affirms the decision under review.

I certify that the preceding 158 (one hundred and fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

[sgd]........................................................................
Associate
Dated: 28 April 2021

Date of hearing: 22 April 2021

Advocate for the Applicant: Mr Amarinder Gandhi

Solicitors for the Applicant Gandhi Lawyers

Advocate for the Respondent: Ms Kate Ervin

Solicitors for the Respondent: Clayton Utz Lawyers

[2021] AATA 1054

28 April 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Date of hearing:	22 April 2021
Advocate for the Applicant:	Mr Amarinder Gandhi
Solicitors for the Applicant	Gandhi Lawyers
Advocate for the Respondent:	Ms Kate Ervin
Solicitors for the Respondent:	Clayton Utz Lawyers