Sawant and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 809
•20 April 2023
Sawant and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 809 (20 April 2023)
Division:GENERAL DIVISION
File Number(s): 2022/10377
Re:Nita Ranjit Sawant
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member J Rau SC
Date:20 April 2023
Place:Adelaide
The Tribunal affirms the decision under review.
................[sgnd]..................
Senior Member J Rau SC
CATCHWORDS
MIGRATION – refusal to grant a Partner (Provisional) (Class UF) visa under section 501(1)- where Applicant does not pass the character test – Applicant has substantial criminal record – whether the discretion to refuse to grant the visa under section 501 (1) should be exercised – consideration of Ministerial Direction No. 99 - decision under review is affirmed.
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCA 500
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIAL
Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member J Rau SC
20 April 2023
INTRODUCTION
The Review Applicant (“Nita Ranjit Sawant”) seeks a review of the decision by a delegate of the Minister for Home Affairs (“the Respondent”) made under section 501 (1) of the Migration Act 1958 (Cth) (“the Act”) on 25 November 2022, to refuse to grant a Partner (Provisional) (Class UF) visa (“the Visa”) to her husband, Manish Anil Kambli (“the Applicant”). The Applicant’s visa application was refused under section 501 (1) of the Act on the basis that he did not pass the character test (“the Decision”).
Sections 501(6)(a) and 501(7)(c) of the Act provides that a person does not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more. The Applicant fails the character test on account of having been sentenced to a term of imprisonment of 12 months for a family violence offence on 16 August 2004.[1]
[1] Exhibit 4, filed 17 January 2023, T9, p 101 and T10 pp 110-122.
The Applicant quite properly concedes that he does not pass the character test.[2] The issue before the Tribunal is therefore whether the discretion should be exercised to refuse to grant his visa application pursuant to s 501 (1) of the Act. In doing so, the Tribunal must have regard to Direction 99.[3]
[2] Exhibit 1 at [71].
[3] The current Direction under s 499 of the Act.
On 20 March 2023, the Tribunal was alerted to the fact that the application initially lodged with the Tribunal, named Mr Kambli as the applicant. Given that he is not in the migration zone, this is incorrect. On 20 December 2022, another application was lodged, naming Ms Sawant as the applicant. Ms Sawant has now made an application under s 29(7) of the AAT Act for an extension of time. There is no prejudice to the Respondent. The Respondent does not oppose the application. In the circumstances, I am satisfied that it is appropriate to grant the requested extension.
The hearing was held on 22 March 2023. The Applicant was represented by Ms Gabriel Mackenzie of Jameson Law and the Respondent was represented by Mr Matthew Sheedy of Sparke Helmore Lawyers.
The Applicant gave evidence by Microsoft Teams from India. He generally gave evidence in a straightforward manner. Credit and honesty issues were raised by the Respondent in cross-examination. I will discuss some of these below. These issues concerned the accuracy of information provided by the Applicant, to the Respondent, in the context of this and other past visa applications.
The Applicant called the Review Applicant, his current wife, as a witness. She gave evidence in a straightforward manner. I have no cause to doubt her voracity. In summary, she told the Tribunal that she required the Applicant’s assistance to adequately care for her teenage daughter and to manage her work/life balance in Australia. She made it clear that joining the Applicant in India, if he failed to obtain a visa, was not an option.
The Applicant also provided a number of statements regarding his good character. The Applicant offered to call 3 of these witnesses, but the Respondent did not require them for cross-examination. I take their evidence at face value.
The Applicant did not call psychologist Mr Borenstein who prepared an expert report. I note that the Respondent wanted Mr Borenstein to be called for the purpose of cross-examination. This is discussed below.
Background Facts
The Applicant was born in India. He is now 48 years of age. He is an Indian citizen.[4]
[4] Exhibit 4, T5, Attachment A1, pp 24-25.
On 12 December 1999, the Applicant married his first wife, Ms (“SMK”) in India.[5]
[5] Exhibit 6.4.
In 2001, the Applicant and his first wife moved to the United States (“US”). He travelled on a “business/tourist visa”. He remained there until 2008.[6]
[6] Exhibit 4, T26, Attachment E10, p 271.
Ms SMK did not like the US and returned to India after 6 months. The Applicant said that this marriage was arranged and did not work. Notwithstanding this assertion, the Applicant did resume his relationship with Ms SMK, albeit briefly, when he returned to India in 2008. They had a daughter in 2009. During the Applicant’s time in the US, he developed chronic alcohol abuse.[7]
[7] Exhibit 6.4.
In 2002, the Applicant says that he married his second wife, Ms (“KA”) in the US.[8] The Applicant told the Tribunal that he was still married to Ms SMK at this time, and indeed continued to be so until 2018.
[8] Ibid.
On 10 June 2002, the Applicant was arrested and charged with Disorderly Conduct but the charge was not prosecuted. The Applicant has no recollection of this event.[9]
[9] Exhibit 4, T23, Attachment E7, pp 204-205.
The Applicant and Ms KA had a son in 2003. The Applicant said that he lost contact with Ms KA and his son in about 2006. He said that he heard that Ms KA had died in 2018. He has no knowledge of his son.
The Applicant failed to mention anything about his marriage to Ms KA or the existence of his son in his visa application of 25 March 2019. He mentioned only Ms SMK and his daughter in India. This statement was false by omission. It had the effect of making his history less colourful. He told the Tribunal that he did not include them because they had not been in his life since 2006 and he never thought about them. He also said that he did not think that he had to mention Ms KA because she was dead.[10]
[10] Ibid, T5, Attachment A1, p 43.
On 9 August 2004, the Applicant was arrested and charged with Domestic Battery and Battery in Indiana, US. The Applicant pleaded guilty to the charge of Domestic Battery and was sentenced to 365 days imprisonment. Having served 16 days, the remaining 349 days were suspended, and he was placed on probation.
The Court record relevantly states:
“……
[The Applicant], this record tells me, and correct me if I am mistaken, but it tells me you are going to plead guilty to Domestic Battery, which is a Class A Misdemeanour. In return for your plea of guilty, the State will dismiss Battery as a misdemeanour: the second charge. You will receive the following punishment: three hundred and sixty-five (365) days in jail, with an unknown number of days suspended- well, it’s- how does Judge Orbison do this? Does she do three sixty five (365) minus eight plus eight (8+8)?
BAILIFF [S]: Yes
THE COURT: Okay. Three sixty-five (365) minus sixteen (16) to the best of my knowledge is three thirty four (334) or three forty-four (344). Where is my calculator?
BAILIFF [S]: Judge, that’s going to be three forty-nine (349).
THE COURT: Okay. I’m going to put three forty-nine (349) in here as the days suspended. So three hundred and sixty-five (365) days in jail but three hundred and forty-nine (349) days will be suspended. All right, we got it. Okay, so [the Applicant], three hundred and forty-nine (349) are suspended, so that leaves sixteen (16) days.
……
MS [DR-B]: if this matter had proceed to trial, we would show beyond a reasonable doubt that on or about August 9 2004, to Marion County, state of Indiana, that [the Applicant] did knowingly in a rude, insolent, or angry manner touch [INAUDIBLE] [the Applicant], another person who was the spouse of the Defendant, who also has a child in common with the Defendant and further that the touching resulted in violent injury to the other person, specifically causing pain. specifically, on that date, the Defendant then did kick her in her upper leg, as well as grab her hair, all of which are contrary to law of the state of Indiana.
THE COURT: [The Applicant], did you hear the deputy prosecutor read those facts?
DEFENDANT [THE APPLICANT]: Yes, sir.
THE COURT: Are those facts true?
DEFENDANT [THE APPLICANT]: Yes, sir.
THE COURT: [The Applicant], who is this woman sitting next to the deputy prosecutor?
DEFENDANT [THE APPLICANT]: My wife.
THE COURT: And what is her name?
DEFENDANT [THE APPLICANT]: [INAUDIBLE]
THE COURT: [The Applicant, is that what happened?
[SMK]: Yes.
……
THE COURT: Understanding that, do you want me to accept your plea or to reject your plea?
DEFENDANT [THE APPLICANT]: Accept it.
THE COURT: Very good, [the Applicant], the Court finds as follows: that you made a knowing and voluntary plea to Domestic Battery, Court finds you understand your constitutional rights and you’re giving them up. Court further finds that you understand the terms and penalties involved in your plea and that would otherwise be involved in your case where you’re found guilty, Court finds the plea agreement in knowingly and voluntarily entered into. The Court accepts the same. The Court finds there’s a factual base for the plea as well. The Court sentences you pursuant to the pleas as follows: judgement of conviction against [the Applicant] for Domestic Battery, a Class-A Misdemeanour, order to have served three hundred and sixty-five (365) days in Marion County Jail, but suspended three hundred and forty-nine (349) days, and that leaves sixteen (16) days, all of which [the Applicant] has completed order [the Applicant] to be placed on probation for a period of you know, it doesn’t say this in here, it doesn’t say what the probation is.[11]
[11] Ibid, T10, Attachment B2, pp 112-118.
In relation to this offence, the Applicant told the Respondent:
“This matter relates to me and my housemate.
It’s been 16 years since the event occurred, on 08/09/2004, me and some friends had a party that afternoon at my apartment. We partied hard and the apartment turned out to be a mess, I had a female individual who shared the apartment with me. She returned home from work and was furious after seeing the mess in the apartment. After the party was over, I was very much intoxicated, she approached and asked as to who was supposed to clean the mess? In the heat of the moment, I got offended, as I was already drunk, I got angry and abused her verbally. I guess I was very loud. It resulted in a heated argument. The next moment I remember she calling the police. I was arrested from my house and was transported to the processing centre. During the whole episode with the housemate there was only heated argument and verbal abuse, there was no physical contact/violence with her. After the court hearing I was released from county jail on probation. No special orders from the court.
The offence I committed was 16 years ago and was never warranted for domestic battery before. It was the first ever incident hence charged with a Misdemeanour charge, I was entitled to probation. The final sentence imposed was 90 days. There was no electronic monitoring, no previous conviction of domestic violence. The combined term of the sentence and probation did not exceed one year. This would not have been possible if it was a Felony charge. There was no kind of assault or use of a dangerous weapon involved or any physical injury. Neither incident occurred in the presence of minor kids. No special order related to contact with the plaintiff issued. Hence it was a totally non-violent incident. Subordinately count 2 charge of Battery / MA was dismissed and it’s only possible in no risk case.”[12]
[12] Ibid, p 205.
This account of events was untrue. I note the following notification of incorrect answers, eventually provided to the Department on 22 February 2022:
“Give details of the incorrect information: According to the affidavit provided by me initially there was a disturbance /heated argument between me and the (housemate). Using the word house mate was incorrect. It was my ex-wife [KA]. I had also mentioned that there was no physical conflict between me and [KA] which is not correct.
Give details of the correct information: The correct information about the circumstances which lead to domestic battery case are described in the transcript provided currently. It did result in an argument and physical confrontation by me.
Reason why incorrect information was provided: I accept that it was a one time charged with domestic battery (misdemeanour A)
The reason provided by me initially contradicts with the transcript.
This incident occurred in the year 2004 and it’s been 18yrs since then, my memory has faded away with time. Also, at the time of the incident I was very much intoxicated to remember the exact scenario even the next day which does happen with alcoholics and I was one of the individuals. The time I filled the affidavit initially I could only acknowledge the incident but hardly remember the correct scenario. Which explains limited memory recollection. It was only when I read the transcript, I got the complete picture of what had happened exactly at the day of the incident.
I apologies for the incorrect information provided by me, it was not intentionally done and would like a chance to correct the same.”[13]
[13] Ibid, T19, Attachment E3, pp 176-177.
The Applicant told the Tribunal that he had obtained information from an AFP website that told him that offences which had occurred more than ten years ago did not need to be revealed. He said that he was not deliberately concealing information. He says it was caused by his poor memory.
The Applicant said that he only attended a few weeks of the 26-week DV counselling ordered by the Court.
On 8 October 2004, the Applicant was arrested for Public Intoxication and Theft/Receiving stolen property but not charged. The incidents occurred when he was on probation.
In relation to this offence, the Applicant says:
“I was arrested for public intoxication/theft receiving stolen property but no charges were filed by the state. I was released on continuous probation (domestic battery) by the probation department. I am sure a theft charge is not addressed in the court record and could be a typo”[14]
[14] Ibid, T23, Attachment E7, p 206.
On 10 November 2004, the Applicant was arrested and charged with Operate Vehicle whilst intoxicated and Public Intoxication. He was sentenced to 120 days and served 60 days.
In relation to this offending the Applicant says:
“I was returning home from a party with a friend in my car he was driving. We stopped over at a gas station and parked. My friend went into the store for some cigarettes, as soon as he left, I switched on to the driver side. I guess there was a cop over the corner watching. He walked over to my car and asked me if I was intoxicated? U said yes, since the car keys were still in the ignition switch and I was in the driver seat, technically it looked like I was intending to drive. Hence, I was arrested for DUI.”[15]
[15] Ibid.
On 12 January 2005, the Applicant was arrested and charged with Disorderly Conduct and Public Intoxication. Both charges were dismissed.
In relation to this offending the Applicant says:
“I was drunk and passed out in the parking lot. I was drinking over the limit and caused a blackout in front of my eyes and I passed out in the parking lot and was finally arrested by cops.”[16]
[16] Ibid, p 207.
On 20 January 2005, the Applicant was arrested and charged with Violation of Probation. The violation was that on 12 January 2005 he engaged in Disorderly Conduct and Public Intoxication whilst on probation for Domestic Battery. The Applicant pleaded guilty to Violation of Probation.
In relation to this offending the Applicant says:
“This is for violation of probation since I was charged for PUBLIC INTOXICATION- DISMISSED/DISORDERLY CONDUCT-DISMISSED while on probation for Domestic Battery. I was in the park alone and drinking.”[17]
[17] Ibid.
On 4 May 2005, the Applicant was arrested and charged with False Reporting or Informing. He was sentenced to 180 days imprisonment suspended and placed on probation for 179 days. He served one day in custody.
In relation to this offending the Applicant says:
“I was drunk and was hallucinating that evening and at that instance. I thought I saw someone trespassing on my neighbour’s property. I called the cops and informed them what I thought I saw. They realised I was drunk. They still checked on the information I provided and it turned out to be a false call. Since I was too drunk, the cops arrested me.”[18]
[18] Ibid.
On 18 June 2005, the Applicant was arrested and charged with Intimidation, Public Intoxication and Disorderly Conduct. The Intimidation charge was not prosecuted. The Applicant pleaded guilty to Disorderly Conduct which was dismissed. The Applicant pleaded guilty to Public Intoxication and was sentenced to 180 days imprisonment with 170 suspended and the Applicant placed on probation. The Applicant served 10 days in custody. check
On 3 August 2005, the Applicant was arrested and charged with Public Intoxication. The charge was dismissed. He has no recollection of this event.[19]
[19] Ibid, p 208.
On 6 September 2005, the Applicant was arrested and charged with Public Intoxication and Theft/Receiving Stolen Goods. The Applicant pleaded not guilty to both charges. On 19 July 2006, he was found not guilty of Public Intoxication but was found guilty of Theft/Receiving Stolen Goods.
In relation to this offending the Applicant says:
“This happened at the gas station I was working and I was working alone as a cashier attendant. It was closing time at night. A lady walked in the store and paid for 20$ for gas. I authorised the pump accordingly. after a while she walked in and said she didn’t get the gas and started demanding for pumping it again, which I couldn’t allow. She started arguing but I refused because she had pumped the gas already she started arguing but I didn’t agree for a refund. She got furious and called the cops. I tried to explain the situation to the cops but they arrested me instead.”[20]
[20] Ibid, p 209.
This account seems somewhat implausible.
On 16 June 2006, the Applicant failed to appear for a probation date regarding his DUI and was arrested.[21]
[21] Ibid.
On 25 July 2006, the Applicant was arrested for Invasion of Privacy. It is unclear whether he was charged, but it seems that he was not prosecuted.
In relation to this offending the Applicant says:
“I was walking back home from the bus stop. I stopped over at the wine shop and bought some alcohol and drank it on the way back. Suddenly I blacked out and fell in someone’s yard on the road side.”[22]
[22] Ibid.
On 9 September 2006, the Applicant was arrested and charged with Public Intoxication and failure to appear on a hearing warrant.
In relation to this offending the Applicant says:
“on 9 September 2006 was a hearing warrant for failure to appear in Theft/public intoxication case. I was released on my own recognizance.”[23]
[23] Ibid, p 210.
On 16 September 2006, the Applicant was charged with Public Intoxication, Fail to Appear/theft and Fail to Appear/Public Intoxication. The Public Intoxication was dismissed.
In relation to this offending the Applicant says:
“Public intoxication: Dismissed
Failure to appear in court for a theft case since I had no money to travel to court.”[24]
[24] Ibid.
On 13 November 2006, the Applicant was sentenced on the Theft/Receiving Stolen Goods for which he had been arrested on 6 September 2005 and had failed to appear. He was sentenced to 180 Days imprisonment and was transferred to immigration detention.
It was at about this time, that the Applicant says that he lost contact with Ms KA and his son.
On 14 November 2006, the Applicant was charged under ss 212 and 237 of the Immigration and Nationality Act 1952 (USC). On 17 November 2006, the Applicant was detained in US immigration custody.
In relation to this the Applicant says:
“Taken in immigration detention for removal proceedings. Since I was charged for the crime of domestic battery/ MA within 5 years of naturalization in the United States, I was in ICE custody at McHenry county jail Chicago (Illinois) where I was presented before the immigration judge. I was given a choice to contest deported on ICE expenses or contest the charges and file for relief. I chose to contest and finally was granted “Withholding of Removal” status by the immigrations court. Eventually I was released since my detention was not in the public interest according to the court….”[25]
[25] Ibid, p 211.
On 20 March 2007, in removal proceedings, Immigration Judge Morace:
(a)ordered the Applicant to be removed to India;
(b)denied the Applicant’s claim for asylum;
(c)granted the Applicant’s application for withholding of removal; and
(d)pending an appeal, notice of which was to be filed by 19 April 2007.[26]
[26] Ibid, T13, Attachment B5, p 135.
The Applicant told the Tribunal that he had claimed asylum in the US because he feared persecution in India. He was very vague about the basis for this claim, simply saying that it was connected with family matters. The sincerity of this claim is questionable, in the light of his subsequent voluntary return to India on 12 April 2008.
On 12 June 2007, the Applicant was released from immigration custody. This did not affect his removal order, which was still current. It seems that US Immigration officials were under the impression that his removal was on hold, pending him obtaining a travel document.[27] Curiously, the Applicant told the Tribunal that there was no issue with his travel documents and that he had them at all relevant times. How US Immigration officials came to be mistaken in this way, was unexplained. A possible explanation may be that he had told them that he lacked documents.
[27] Ibid, T14, Attachment B6, p 136.
In relation to these events, the Applicant’s migration agent submitted on 17 December 2020:
“On the 12th of June 2007, [the Applicant] was released from the US Immigrations and Custody enforcement on the condition that he was to report to the immigration field office every month. After some time, he was instructed that he would no longer need to report. [The Applicant] departed the USA in 2008. He departed the United States of his own free will and at his own expense. There was no deportation order in action and no monetary bond. The Applicant has provided his previous passport to show that there is no deportation stamp on his passport and he left the US and returned to India on 12 April 2008.”[28]
[28] Ibid, p 221 at [39].
On 26 September 2007, the Applicant was arrested and charged with Public Intoxication and Violation of a Probation order.
In relation to this the Applicant says:
“I was on probation for public intoxication and I was jobless at the moment and was not able to pay the court fees and the probation/urine and drug testing fees hence it was considered a violation of probation.”[29]
[29] Ibid, p 211.
On 4 January 2008, the Applicant was charged with Public Intoxication.
On 26 February 2008, the Applicant entered a guilty plea and was sentenced to 180 days imprisonment with 172 days suspended whilst on probation. He served 8 days in custody.
In relation to this the Applicant says:
“Alcoholism was my major issue and I had another bad habit of roaming around in the streets alone while intoxicated caused all the public intoxication arrests.”[30]
[30] Ibid, p 212.
On 2 March 2008, the Applicant was charged with Public Intoxication. The Applicant pleaded guilty.
In relation to this the Applicant says:
“I plead guilty for the above charge, sentences as above. Since I was intoxicated, I can’t recollect the events so I plead guilty of the offence.”[31]
[31] Ibid.
On 2 April 2008, the Applicant was arrested for Public Intoxication but not charged. The matter did not proceed.[32]
[32] Ibid, p 213.
A table summarising the Applicant’s offending, provided by the Applicant’s migration agent on 17 December 2020[33] is helpful and is set out below:
[33] Ibid, pp 213-214.
Date of Offence
Offence
Sentencing/Penalty Imposed
10 June 2002
Disorderly conduct (O1)
No charges filed by state
12 January 2005
Dismissed
18 June 2005
Dismissed
9 August 2004
Battery and domestic batter (O1)
90 days, executed: 90 days’ suspended:0; Released in 45 days.
8 October 2004
Public intoxication (O1)
Not charged
10 November 2004
Refer to DUI charge with the same date
12 January 2005
Refer to disorderly conduct with the same date. Dismissed.
18 June 2005
Total executed 40 D with 1 day’s credit for time served;
3 August 2005
Dismissed
6 September 2005
Total executed 150 D with 61 days credit for time served;
9 September 2006
Total executed 12 D with 2 days credit for time served;
16 September 2006
Dismissed
4 January 2008
Total executed 8 D with 4 days credit for time served;
2 March 2008
Continuation from 4 January 2008 charge.
2 April 2008
Not charged
8 October 2004
Theft (O3)
Not charged
6 September 2005
Executed: 150 days with 61 days credit for time served;
10 November 2004
Operate Vehicle While Intoxicated (O1)
Total executed 120 D with 3 days credit for time served;
Released in 60 days.
16 June 2006
Dismissed – Failure to appear for prohibition for DUI.
20 January 2005
Violation of probation (O2)
Dismissed
26 September 2007
Total executed 40 days credit for time served. (violation of probation warrant)
4 May 2005
False reporting or informing (O1)
Total executed 1 D with 1 day’s credit for time served;
18 June 2005
Intimidation (O1)
No charges filed by state
25 July 2006
Invasion of privacy (O1)
No charges filed by state
16 September 2006
Failure to appear (O2)
Dismissed
17 November 2006
Removal (O4)
USC 1229A ALIEN REMOVAL UNDER SECTION 212 AND 237 OF THE IMMIGRATION AND NATIONALITY ACT PENDING
In relation to all of this offending, the Applicant’s migration agent submitted on 17 December 2020:
“The first category of “drunken” offences from majority of the Applicant’s convictions on his Police record. There were a few being dismissed and a few being charged. The Applicant acknowledges that alcoholism was his major issue at that time, which eventually revolved into one of the offences committed in the US in 2004, and resulted in the Applicant being arrested and transported to the processing centre and sentenced to 90 days in Marion county jail. It is submitted that the Applicant was released from county jail on probation and no special orders from the court.
The Applicant advise that it’s been 16 years since the event occurred. At that time when it happened, he was with some friends and had a party that afternoon at his apartment. They partied hard and the apartment turned out to be a mess, He had a female individual who shared the apartment with him.[34] She returned home from work and was furious after seeing the mess in the apartment. After the party was over, the Applicant was very much intoxicated. When she approached and ask as to who was supposed to clean this mess? In the heat of the moment, the Applicant got offended, as he was already drunk. He got angry and abused her verbally.[35] He assumed that he was very loud and it resulted in a heated argument. The next month, he remembered her calling the police. The Applicant was arrested from his house and was transported to the processing centre.”[36]
[34] Actually his wife.
[35] Not in accordance with his plea of guilty for physical assault.
[36] Exhibit 4, p 214 at [17]-[18].
On 12 April 2008, the Applicant departed the US and returned to India. [37] His departure was voluntary, notwithstanding his then recent claims that he feared persecution if he returned to India. He was facing the probability of deportation had he remained in the US by reason of the Court Order mentioned in paragraph 51 hereof.
[37] Ibid, p 221 at [39].
He told the Tribunal that he left because he needed to get treatment for his alcoholism. This treatment did not begin until over 4 years later, in September 2012. He told the Tribunal that this delay was due to a lack of funds. He relied on his sister’s income to pay for his treatment. His voluntary departure possibly prevented his forced deportation.
In an affidavit sworn on 15 December 2020, the Applicant said:
“I declare that I am not subject to a probation order or conditional sentence. On 12 June 2007, the US Immigration and Customs Enforcement (ICE) concluded that I may be released from ICE custody pending my removal from the United States. It was stated that at that time once a travel document is obtained, I will be required to surrender to ICE for removal. I will, at that time, be given an opportunity to prepare for an orderly departure.
I wish to explain on the release notification dated 12 June 2007 regarding the ICE will continue to make efforts to obtain my travel document that will allow the US Government to carry out my removal pursuant to my order or deportation, exclusion or removal. At that time, I was already holding my travel document and based on the outcome of the order of the immigration judge, I was still able to remain in the US as my withholding of removal was granted. This would have meant that the release notification from the ICE was a standard notification. I left the US voluntarily as I felt that I needed to get out of my intoxication problem and I needed to be with my family.[38] There was nothing to suggest that I was deported and I was accompanied by the authorities at the airport. If I were to return to the US in the future, I believe I would be able to return upon a waiver granted. This is based on my best knowledge and understanding.
Due to the nature of the trouble that I had found myself in while in the USA, I knew that I could not go on like this and decided that I needed to address my problems and seek help for my addiction and alcohol dependency. Once back in my home country of India, I admitted myself to Muktangan Rehabilitation Centre on the 26th September 2012. I completed 5 weeks of treatment and rehabilitation on the 29th October 2012.”[39]
[38] This sits uncomfortably with his almost contemporaneous claim for asylum.
[39] Exhibit 4, T24, Attac4hment E8, pp 246-247.
The Applicant told the Tribunal that upon his return to India he re-established his relationship with his wife, Ms SMK. She fell pregnant in about February 2009. In about July of 2009, the Applicant and Ms SMK separated. The Applicant lived in Mumbai with his mother and sister. He continued to have a problem with alcohol.
On 18 November 2009, the Applicant’s daughter, (“AMK”) was born in Mumbai.[40] AMK has always lived with her mother and her family. The Applicant has continued to keep in touch with her. He sees her every month or two because she lives some distance away. He keeps in regular electronic communication with her.
[40] Ibid, T25, Attachment E9, p 261.
On 21 June 2010, the Review Applicant’s daughter, (“Child A”) was born in New South Wales. She is an Australian citizen.[41]
[41] Ibid.
After returning to India, the Applicant eventually sought rehabilitation and support for his alcohol problem as set out below:[42] He told the Tribunal that he had suffered relapses on occasions due to family related stressors. The table below confirms this history:
[42] Ibid, T23, Attachment E7, p 222.
Sr. No.
Period
Treatment Particulars
1
26.09.2012 to 29.10.2012
5 Week Treatment
2
25.12.2012 to 14.01.2013
Anubhav Treatment
3
15.01.2013 to 03.09.2013
After Care Treatment
4
13.09.2013 to 03.10.2013
Anubhav Treatment
5
04.10.2013 to 10.10.2013
After Care Treatment
6
05.11.2013 to 25.11.2013
Anubhav Treatment
7
26.11.2013 to 30.10.2014
After Care Treatment
8
06.11.2014 to 26.11.2014
Anubhav Treatment
9
27.11.2014 to 23.03.2015
After Care Treatment
10
01.04.2015 to 30.04.2015
One Month Treatment
11
01.05.2015 to Till Date
After Care Treatment
The Applicant claims that he has abstained from alcohol use since May 2015.[43]
[43] Ibid.
On 27 July 2018, the Applicant sent an invitation to connect to the Review Applicant on an Indian matrimonial/matchmaking website called “Shaadi.com”. The Review Applicant contacted the Applicant in response. They communicated electronically.[44]
[44] Ibid, p 203.
The Review Applicant is an Australian citizen living in Australia. Her first husband died on 11 June 2015. Child A is 12 years of age.[45]
[45] Ibid, p 223.
On 16 November 2018, the Review Applicant proposed to the Applicant.
On 27 November 2018, the Applicant obtained a divorce from Ms SMK.[46]
[46] Ibid, T5, Attachment A1, p 43.
The Applicant told the Tribunal that he believes that his second wife, Ms KA, died in the US in 2018. He did not explain how he came to be aware of this, other than that he had heard it. No evidence in support of this claim was produced.
On 24 December 2018, the Review Applicant travelled to India and met the Applicant in person for the first time.[47]
[47] Ibid, p 203.
On 3 January 2019, the Applicant married the Review Applicant in India.[48]
[48] Ibid, p 202.
On 17 January 2019, the Review Applicant returned to Australia.[49]
[49] Ibid, p 203.
On 28 January 2019, the Applicant lodged a Visitor Short Stay visa application. He failed to declare his past convictions.[50]
[50] Ibid, T8, Attachment A4, pp 92-93 and T21, Attachment E5, p 195.
On 18 February 2019, the Applicant’s Short Stay Visitor visa application was refused.
On 25 March 2019, the Applicant lodged an offshore Partner Sub Class 309 visa application.[51] The Applicant again failed to declare his past convictions.[52]
[51] Ibid, T23, Attachment E7, p 204.
[52] Ibid, T5, Attachment A, p 46 and Attachment T21, Attachment E5, p 195.
On 28 March 2019, the Applicant lodged another Visitor Short Stay visa application. He again failed to declare his past convictions.[53]
[53] Ibid, T7, Attachment A3, pp 78-79 and Attachment T21, Attachment E5, p 195.
On 18 April 2019, the Applicant’s Visitor visa was refused.
On 2 July 2019, a migration agent acting on the Applicant’s behalf, provided further information to the Respondent regarding incorrect information contained in the 25 March 2019 Partner visa application. This document still fails to mention the Applicant’s marriage and son in the US. It also gives a false account of the family violence offending. It states:
“While my client [the Applicant] has never been charged with intimate partner violence. He has in fact been charged with battery and domestic battery on the 9th of August 2004 as seen in INDEX 4- [THE APPLICANT] – US Record_Convictions. This was a dispute while under the influence of alcohol with friends at a party. It must be made very clear that at no time was my client [the Applicant] ever charged or arrested for violence against an intimate partner, or spouse, nor has he ever been involved in a domestic violence or inflicted domestic violence on his partner and previous partner.”[54]
[54] Ibid, T26, Attachment E10, pp 274-275.
The Tribunal requested the Respondent to check whether there had been any communication with the Applicant between 25 March 2019 and 2 July 2019, to which the latter correspondence may have been responsive. On 29 March 2023, the Respondent advised that there had been no such communication. This means that the Applicant’s migration agent made an unsolicited correction to the visa application on 2 July 2019. This correction, whilst revealing a previously undisclosed criminal history, did not present an accurate record of that offending.
In 2021 or 2022, the Applicant and the Review Applicant purchased a property together in Pune India. The Applicant lives there now. The house is set up to accommodate the Review Applicant and Child A.[55]
[55] Ibid, T34, Attachment G1, p 323.
On 28 January 2022, the Applicant was issued with a notice of intention to consider refusal of the visa under s 501(1) of the Act. He provided evidence in response.[56]
[56] Ibid, T16, Attachment D, pp 140-143.
On 25 November 2022, the delegate decided to exercise the discretion under s 501(1) to refuse to grant the visa.[57]
[57] Ibid, T2, pp 7-8, T3, p 9 and T4, pp 10-23.
On 5 December 2022, the Applicant was advised by email that his visa had been refused.[58]
[58] Ibid, T2, p 7.
On 20 December 2022, the Applicant applied to the Tribunal for review of the decision.
The Applicant has never been to Australia. The Applicant has met the Review Applicant and Child A on 5 occasions since 2019, when they have visited him in India.
The Applicant lives with his 72-year-old mother in Pune, and he acts as her carer. She suffers from schizophrenia. He says if he is allowed to move to Australia, his sister will become her carer.[59]
[59] Exhibit 6.4.
The Applicant conceded that he had relapsed into alcohol use in the past when presented with family stressors. He told the Tribunal that this would not happen in the future. I have no doubt that he is sincere in this desire.
On 24 February 2023, Clinical Psychologist, Mr Sam Borenstein, produced a report concerning the Applicant, based on documents provided by the Applicant’s legal representatives and an AVL interview with the Applicant on 21 February 2023. He provides the following opinion:
“[The Applicant] has applied for review of Department of Home Affairs Decision to refuse partner visa on character grounds.
[The Applicant] confirmed his criminal history when living in the USA since 2001, which included disorderly conduct, battery and domestic battery, public intoxication, probation violation, disorderly conduct, false reporting, intimidation, and operating a vehicle whilst intoxicated.
[The Applicant] suffered regular episodes of blackouts and memory loss, the result of consuming on a daily basis. [The Applicant] also suffered with alcohol withdrawal symptoms, which included hallucinations. (Note – Unsupervised alcohol withdrawal can lead to death).
[The Applicant] was not health insured and could not afford to participate in alcohol rehabilitation programs in the USA. Realising his circumstances were dire, [the Applicant] returned to India, where he commenced alcohol rehabilitation in 2012, and over the next few years suffered several relapses and he succeeded from relapsing since 2015.
Thank you for enclosing for my information copy of document from [MR], Clinical Psychologist, summarising results of the Millon Clinical Multiaxial Inventory (MCMI). The MCMI is a psychological assessment tool intended to provide information on personality traits and psychopathology, including specific mental disorders outlines in the DSM-5. Mr Ranade reports [the Applicant’s] results indicate the profile to be a valid one, however, Mr [MR] concluded Mr [the Applicant] completed the test in a defensive fashion and attempted to present himself as better adjusted to minimise his psychological traits and symptoms.
Elevations on the MCMI, as reports by Mr [MR], indicate a personality style marked by a need for attention, approval and affection, which may stem from fear of abandonment.
Mr [MR] confirmed the absence of reliable third party information, and the findings need to be clinically correlated.
Assessing a person based on a personality assessment without looking at the total clinical picture is extremely limited, and in my opinion, [the Applicant] relates a ten year history of worsening alcohol dependency, and he left the USA in 2008 to undertake intensive rehabilitation in India. Prior to arriving in the USA in 2001, [the Applicant] did not have an alcohol problem. Within six months of arriving in the USA, [the Applicant’s] wife returned to India and he was left on his own. [The Applicant] gravitated towards a lifestyle which was unfamiliar to him at a time when he was feeling lonely and removed from family and culture. Over time, [the Applicant’s] alcoholism became more prominent and interfered with most aspects of his life including his physical and mental health.
Personality traits commented to by Mr [MR], Clinical Psychologist, on the basis of psychometric testing, without a thorough clinical interview does not indicate character deficiencies.
[The Applicant’s] criminal history relates specifically to worsening alcohol dependency when in the USA, which has since been successfully treated. [the Applicant] is now abstinent from alcohol since 2015. [The Applicant’s] criminal record is direct result of alcohol dependency and not a reflection of his character or personality.
[The Applicant’s] alcohol dependency was in part a product of feeling isolated and alone in the USA after his wife returned to India some six months after their arrival in 2001.
Mr [MR] comment in his report that [the Applicant] is highly defensive and communicates in a modulated way. Was not consistent with his presentation during interview/assessment with myself.
[The Applicant] has now been alcohol free for at least seven years. He continues to participate in AA and its twelve-step program to ensure he remains abstinent from alcohol. And the likelihood of him presenting a risk to sponsor, sponsor’s daughter and the broader Australian community is, in my opinion, minimal.”[60]
[60] Ibid, pp 7-9.
Mr Borenstein was not called to give evidence. I was advised by the Applicant’s counsel that this was due to his unavailability. I do note that his report was only obtained on 24 February 2023. It is perhaps unsurprising that he should then be unavailable at such short notice. The Respondent’s counsel made it clear that he would have wished to have cross-examined Mr Borenstein if he had been called. The Tribunal may well have been better informed if the Respondent had been given this opportunity. His report is in evidence, but I note that he was not cross-examined.
The Applicant has no connection to Australia other than the Review Applicant and Child A…
The Review Applicant swore a Statutory Declaration on 17 March 2023. This states:
“……
In addition to the evidence, I have already provided regarding my health, I want to add on some new circumstances. I went to my GP Dr [EH] to sought medical treatment due to uneasiness and tightness in my chest and anxiety issues which even my work colleagues noticed in me since last couple of weeks. She gave me a referral on 27 February 2023 to see specialist Dr. [AS] for a stress test. I met Dr [AS] on 16th March 2023 and during assessment he asked questions about my health. I mentioned about the aneurysm in my kidneys, and that they are being treated with stents in one kidney. I advised him that I must take Aspirin lifelong as a blood thinner for my kidney condition as well as high blood pressure medication. Subsequently, he referred me to perform CT coronary angiogram diagnosing me with ‘stable or acute coronary event’. I understand this to mean that I might have to ace some medical conditions related to my heart which will need critical care both medically and on a personal front. Also, it will restrict me from doing my day-to-day chores on my own and care for my minor daughter. I attach the letter and report to this Statutory Declarations.
I am particularly stressed and anxious by my health as my daughter’s biological father has already passed away prematurely and I’m as a single parent, fear for my own health being the sole support for my daughter with no other family relatives in Australia. For this reason, I would greatly appreciate the hands-in support of my husband in dealing the stresses oof my situation.
Relationship between [Child A) and [the Applicant]
I wish to correct factually incorrect information under the heading Best Interests of minor children in Australia in the Minister’s Statement that [the Applicant] and [Child A) have only met twice. In fact, they have spent time together on 5 occasions.
First when we went to India in Dec 2018 and Jan 2019 summer holidays, we got married on 3rd Jan 2019. [Child A) was always with us even when we went for our honeymoon.
In July 2019 we went to India in the winter break. We ([the Applicant], [Child A] and me) visited couple of different cities in India and visited extended family and friends,
In Dec 2019 and Jan 2020 Summer holidays we ([the Applicant], [Child A) and me) went to Bali for 2 weeks. We spent a nice family holiday there and our first wedding Anniversary. We had booked a 2-bedroom apartment and when we got there [Child A) ran inside and took the big and best bedroom. I still remember [the Applicant] didn’t mind for that and said [Child A) is priority let’s not say anything to her. He always cared for her and [Child A] also have a fatherly love and respect for him.
When we came back COVID was almost starting and after that 2 years we couldn’t travel anywhere, nor [the Applicant] could. As [Child A) was below 12, She didn’t even get her COVID vaccination till Jan 2022. I didn’t want to travel to India without [Child A’s) vaccinations. I had booked her for the first day when kiss 11 and under were able to be vaccinated (10th Jan 2022). When she had her 2nd dose in Mar 2022, we visited India.
In April 2022, we visited India during School Easter break. We ([the Applicant], [Child A] and me) visited Taj Mahal in Agra, one of the seven wonders of the world. It was again out family get together and trip. We had our housewarming ceremony during this trip where both my parents and [the Applicant] extended family visited and we had a good time.
Dec 2022 and Jan 2023 was our most recent visit. [The Applicant] had booked a holiday home at nearby hills station (Lavasa) where we ([The Applicant], [Child A] and me) celebrated our 4th Marriage anniversary together with my Dad. This time he booked with 2 master bedrooms and let her choose the room first. My latest statutory declaration had photos of the same.
[The Applicant] and [Child A] l have a very good bonding and close father daughter relationship. I had introduced him to [Child A] before our marriage in 2018 when she was 8-year-old. Since then, she has been talking to him over phone and video calls. Me and [the Applicant] got married after her and both our family’s approval. Me and [Child A] have visited [the Applicant] during different occasions and she being a 8 year old she has always been with us in every trip.
[Child A] being in year 8 this year, the only time we can travel is during school term breaks. With COVID and borders being closed for a couple of years, [Child A’s] delayed vaccination (below 12), [the Applicant] not able to come here even after 5 visitor visa attempts. We tried to be together as much and when possible, but the circumstances were not favourable. India is not close to visit so often and I have tried to visit him whenever possible. During our 5 visits [Child A] has spent quality time with [the Applicant] and she has been desperately waiting for him to join us. [The Applicant] and I speak at least 2 times a day, when he wakes up in the morning and when we go to bed. [Child A] talks to [the Applicant] at least a couple of times a week when we go to bed and Video calls every Sunday. She shares about her school friends and other day to day things and keeps asking when he will join us here.
The extent of relation with [Child A] has been limited by the pandemic and the fact that [the Applicant] was not granted a visitor visa. Hence in both cases it has to be electronic communication. Whole world was using that to communicate, and we also used that means to maintain our relationship.
Relocation to India
This is not an option at all. [Child A] doesn’t and wouldn’t want to move to India. [Child A] been born and grown in Australia; she understands our language (Marathi) but she can’t speak well. She is born and brought up in Australian culture. She has her friends; she is good into studies and has got into Selective high school. There is very different education system, very different cultural change for her. We have visited India only during school holidays for couple of weeks which she was not that comfortable, and living is not an option. She also has come extracurricular activities as well which she would lose. I can’t force her against her decision to move, she might have mental health issues if we move against her will. We ([the Applicant] and I) bought an apartment in Pune, India as we were advised to show some joint assets for our partner Visa. If [the Applicant] would have come to Sydney, we would have bought the property in Sydney. I own a house in Prestons which was bought in Year 2015, have a good job here. I am turning 50 this year, moving at this stage of life and start fresh in a new country is impossible. No one will give me a job at this age.”[61]
[61] Exhibit 8.1 at [2]-[14].
If the Applicant were to be granted the visa, he would live in Sydney with the Review Applicant and Child A.
LEGISLATIVE FRAMEWORK
Does the Applicant Pass the Character Test?
On 16 August 2004, the Applicant was sentenced by the Superior Court of Marion County, Indiana, USA, to a term of imprisonment of 365 days, of which he served 16 days, before being released on probation.[62]
[62] Exhibit 4, T10, pp 110-122.
The Tribunal finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. This is not disputed by the Applicant. The Tribunal must therefore consider whether to exercise the discretion to refuse the visa.
Should the visa application be refused under section 501 (1)?
In considering whether to exercise this discretion, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[63]
[63] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90, this in turn was replaced by Direction 99 on 3 March 2023.
For the purposes of deciding whether to refuse or cancel a non-citizen’s visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:
(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 non- citizens 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 non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen’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 8.55(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 measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia:
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. These considerations are:
a)Legal consequence of the decision;
b)extent of impediments if removed;
c)impact on victims; and
d)impact on Australian business interests.
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[64]
“…Direction 65 [now Direction 99] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[65]
[64] [2018] FCA 594.
[65] Ibid, [23].
OFFENDING HISTORY
The Applicant’s criminal record as produced by the Indiana State Police Central Records Division as set out above.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to 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.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. I will now turn to addressing these considerations.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
The Applicant has a been sentenced to a term of imprisonment of 365 days for family violence offending. Despite the Applicant’s earlier attempt to characterise the offending as minor, it is now clear that it was both family violence as defined and serious. The Applicant kicked his then wife, Ms KA. He entered a plea of guilty on the facts set out by the Court. The Applicant’s lack of transparency about this offending, as set out above, is concerning.[66] This offending is very serious.
[66] Exhibit 4, T19, Attachment E3, pp 176-177.
On 28 March 2023, the Applicant’s counsel provided further material to the Tribunal. This included an email from a US attorney, Mr A, dated 27 March 2023. This material suggests that under the relevant US Law, the Applicant’s conviction could now be the subject of an application to “expunge all conviction records”. There is no suggestion that such an application has been made, or that the process proceeds other than at the initiative of the convicted person. There is no suggestion that s 501(10) of the Act is engaged. The submission is put on the basis that this opportunity to seek an order, suggests that the offending was viewed, in the jurisdiction in which it occurred, as relatively minor.
Be that as it may, the Tribunal is required to apply Direction 99 to the facts. I accept that in the range of possible conduct, which might result in a conviction for family violence, the facts as presented to the Tribunal, are not at the most serious end of the spectrum. They did however warrant a sentence of 365 days imprisonment. Direction 99 evinces an intention to treat conduct in the nature of family violence, whether resulting in a charge or conviction or not, as very serious.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that 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 197A of the Act, which prohibits escape from immigration detention.
The Applicant quite properly concedes that he does not pass the character test. This is relevant to (iii) above. This is serious.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision-maker (with the exception of the crimes or conduct mentioned in sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1)) to have regard to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.
The Applicant has been sentenced to several terms of imprisonment. He has served a number of brief periods in prison or Immigration detention.[67] This is indicative of a pattern of offending. The sentence of 365 days, even though substantially suspended, is indicative of very serious offending. I also note that the Applicant’s offending was so serious that he was ordered to be removed from the US on 20 March 2007. In the event, this order was stayed, and he left of his own accord.
[67] See above.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
The Applicant has been involved in numerous offences, mostly involving intoxication. His most serious family violence offending occurred early on in his criminal history. There is no clear trend of increasing seriousness, though his offending was persistent, at least until he left the US in 2008.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to the cumulative effect of an Applicant’s repeated offending.
The cumulative effect of the Applicant’s offending, with the exception of the family violence offence, has been to make a public nuisance of himself and to consume law enforcement resources. The family violence offence, as discussed above, is very serious.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
The Applicant has made several material non-disclosures to the Department as set out above. He has also misled the Department about the nature and seriousness of his family violence offending when purporting to correct the record. This is very serious. It suggests either dishonesty, or a concerning lack of insight.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to whether the non-citizen has re-offended since being formally warned 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).
This is not relevant in this case.
Sub-paragraph (h) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard, where the offence or conduct was committed in another country, to whether that offence or conduct is classified as an offence in Australia.
The offending was committed in the USA. The reported offending, with the possible exception of public intoxication, would be classified as criminal conduct in Australia. This is particularly so in the case of family violence, which is taken very seriously in this country.
I do not consider factors (d) and (g) of paragraph 8.1.1(1) of the Direction apply to the Applicant’s offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh in favour of refusal to grant the visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that in considering the need to protect 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.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posted 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;
(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 non-citizen 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; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Nature of harm should the Applicant engage in further criminal or other serious conduct
Assessing the nature of the harm to individuals or the Australian community that may occur if the Applicant were to engage in further criminal or other serious conduct, is informed by the nature of his/r offending to date, including any escalation in his/ offending. This assessment also notes that the Direction provides that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, is so serious that any risk that it may be repeated may be unacceptable.[68]
[68] Paragraph 8.1.2(1) of the Direction.
The Applicant’s family violence offending in particular, is very serious. The tolerance of harm of this kind is very low. Accordingly, even a small risk of this conduct occurring, is unacceptable.
Likelihood of engaging in further criminal or other serious conduct
On the evidence before me it seems that there is a relatively low risk of the Applicant reoffending if he were to remain sober. The tolerance of family violence is however very low. I have considered Mr Borenstein’s report. I cannot be satisfied that there is no risk of the Applicant reoffending. This risk would be greatly magnified if he were ever to resume drinking. I accept that he has been abstinent for many years and intends to remain so. Family stress has caused him to relapse in the past. A new relationship in a new country may well be a significant stressor. If he were to offend the consequences would be very serious. The potential for this to adversely affect the Review Applicant and Child A cannot be dismissed. The Applicant’s dishonesty in dealing with the Department is also a matter of serious ongoing concern.
Conclusion: Primary Consideration 1
Primary consideration number one weighs in favour of refusing to grant the Applicant’s visa application.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
As has already been discussed above, the Applicant has been convicted of a serious family violence offence. The fact that he was sentenced to a term of 1 year’s imprisonment is an indication of the relative severity of his offending.
The fact that the Applicant has attempted to mislead the Department about the seriousness and circumstances of this offending is inconsistent with an acceptance of responsibility and genuine remorse.
On the other hand, there is only one such offence on his record and this occurred almost 18 years ago. There is no evidence of any subsequent conduct of this kind.
The risk of reoffending seems to be strongly correlated with the prospect of the Applicant relapsing into alcohol abuse. This cannot be entirely discounted as discussed above.
On balance however, even a small risk of the Applicant committing further acts of family violence, must weigh against him.
Conclusion: Primary Consideration 2
This consideration weighs in favour of refusing to grant the Applicant’s visa application.
PRIMARY CONSIDERATION 3: THE STRENGTH NATURE AND DURATION OF TIES TO AUSTRALIA
Paragraph 8.3 of the Direction provides:
(1)Decision-makers must consider any impact of the decision on the non-citizen’s 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.
(2)In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(3)The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4)Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)the length of time the non-citizen has resided in the Australian community, noting that:
i.considerable weight should be given to the fact that a noncitizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the noncitizen began offending soon after arriving in Australia.
The Applicant has claimed two significant ties to Australia. These are his wife, the Review Applicant and her 12-year-old daughter, Child A. They are both Australian citizens.
The Applicant has never visited Australia. He has only ever met the Review Applicant and Child A in person, on occasions briefly in India.
He has been able to maintain electronic contact with the Review Applicant and Child A quite successfully ever since he has known them. They have both managed without his presence in Australia since 2019, and indeed, since 2015, when the Review Applicant’s husband died.
Having regard to the Review Applicant’s evidence, I accept that she would benefit from the Applicant’s support and practical assistance. The same applies to Child A, who lost her father to illness in 2015. The Review Applicant has no other family in Australia other than Child A.
Conclusion: Primary Consideration 3
This consideration weighs slightly in favour of granting the Applicant’s visa application.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.4(1) of the Direction requires a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision.
Paragraphs 8.4(2) and 8.4(3) respectively contain further considerations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
· the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
· the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
· the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
· the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
· whether there are other persons who already fulfil a parental role in relation to the child;
· any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
· evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
· evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Child A is the only relevant child. She is 12 years old.
Child A first met the Applicant in December 2018 when she visited India with her mother. She has spent very little time actually with the Applicant, although they have regular electronic contact.
The Review Applicant and the Applicant say that Child A is quite close to the Applicant despite the long-distance nature of their relationship. If the Applicant were to remain in India, and Child A in Australia, this could continue as it has since 2019.
If the Applicant were to be granted the visa, he could provide practical and financial support for the Review Applicant and assist with parenting of Child A.
The Applicant and the Review Applicant have a property in Pune India. There is nothing to prevent her and Child A from relocating to India to be with the Applicant. It is however the case that both the Review Applicant and the Applicant are of the view that it would not be in Child A’s best interests to leave Australia and move to India. I accept this submission.
This means that in practice, if the Applicant is not granted a visa, his relationship with Child A will remain as it is. They will meet on her occasional visits to India and will otherwise communicate electronically.
I note that the Applicant has a biological daughter of his own in India with whom he says he is in regular contact.
If the Applicant were to be granted a visa, he would live with the Review Applicant and Child A. If he were to relapse into alcohol abuse, this may well be very detrimental to Child A’s best interests.
Having regard to all of the above, and assuming in his favour that the Applicant remains sober, primary consideration 3 weighs in slightly favour of granting the Applicant’s visa application.
PRIMARY CONSIDERATION 5 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
a)acts of family violence; or
b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or;
f)worker exploitation.
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[69]
[69] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.5 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Analysis – Allocation of Weight to Primary Consideration 5
Accordingly, in assessing the weight attributable to Primary Consideration 5, it is necessary to have regard to the following matters:
(a)the Applicant’s criminal record as set out above, particularly his family violence conviction.
(b)The Applicant’s provision of materially false and misleading information to the Department as set out above.
(c)The other matters set out above.
Conclusion: Primary Consideration 5
Primary consideration 5 weighs in favour of refusing to grant the Applicant’s visa application.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction.
(a) Legal consequence of the decision
This other consideration is not relevant in this case.
This consideration is neutral.
(b) Extent of impediments if removed
This other consideration is not relevant in this case
This consideration is neutral
(c) Impact on victims
This other consideration is not relevant in this case.
This consideration is neutral.
(d) Impact on Australian business interests
This other consideration is not relevant in this case.
This consideration is neutral.
Findings: Other Considerations
The application of the Other Considerations in the present matter are neutral.
CONCLUSION
It is necessary to weigh up all of the primary and other considerations.
Primary consideration 1 weighs in favour of refusing to grant the Applicant’s visa application.
Primary consideration 2 weighs in favour of refusing to grant the Applicant’s visa application.
Primary consideration 3 weighs slightly in favour of granting the Applicant’s visa application.
Primary consideration 4 weighs slightly in favour of granting the Applicant’s visa application.
Primary consideration 5 weighs in favour of refusing to grant the Applicant’s visa application.
The other considerations are neutral.
In my view, the proper application of the Direction favours the Tribunal in refusing to grant the Applicant’s visa application.
DECISION
The decision under review is affirmed.
I certify that the preceding one hundred and ninety (190) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Rau SC.
...........................[sgnd].....................................
Legal Associate
Dated: 20 April 2023
Date of hearing:
22 March 2023
Advocate for the Applicant:
Ms Gabriel Mackenzie
Jameson LawAdvocate for the Respondent: Mr Matthew Sheedy
Sparke Helmore LawyersAnnexure A – List of Exhibits
Exhibit no.
Lodged by
Document
1
Applicant
Statement of Facts, Issues and Contentions
2
Respondent
Statement of Facts, Issues and Contentions
3
Applicant
Reply to Respondent’s Statement of Facts, Issues and Contentions (and attachments)
3.1 Copy of Crimes Records Act 1991 (NSW)
3.2 Copy of Spent Convictions Scheme
4
Respondent
T-Documents
5
Respondent
Supplementary T-Documents
6
Applicant
Bundle of Documents:
6.1 Email from Applicant’s lawyer re clarifying SOFIC
6.2 Declaration of Mr [OK] (Certified in English on 01.03.2023)
6.3 Declaration of Mr [SAK] (Certified in English on 01.03.2023)
6.4 Psychologist Report from Mr Sam Borenstein (24.02.2023)
7
Applicant
Bundle of Documents:
7.1 Email from Respondent to Applicant’s lawyer re expert evidence (15.03.2023)
7.2 Letter of Instructions to psychologist, Mr Sam Borenstein (01.02.2023) and attachments:
a. T-Documents
b. Incident Report for Domestic Battery Office (09.08.2004)
c. Report from Clinical Psychologist [MR] (13.06.2019)
d. Summary of criminal record
e. Summary of life events
7.3 Schedule 7 of Uniform Civil Procedure Rules 2005 (NSW)
8
Applicant
Bundle of Documents:
8.1 Statutory Declaration of the Review Applicant (17.03.2023)
8.2 Medical Certificate from Dr [EH] (27.02.2023)
8.3 Letter from Dr [AS] (16.03.2023)
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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Natural Justice
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Procedural Fairness
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Sentencing
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Statutory Construction
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