Shrestha and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4511 (10 November 2020)
Division:GENERAL DIVISION
File Number(s):2020/5124
Re:Pratish Shrestha
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member W Frost
Date:10 November 2020
Place:Canberra
The Tribunal affirms the decision made by a delegate of the Minister on 17 August 2020 to refuse to grant the Applicant a Skilled (Residence) (Class VB) visa under section 501(1) of the Migration Act 1958 (Cth).
........................................................................
Member W Frost
Catchwords
MIGRATION – decision of the delegate to refuse to grant the applicant a visa pursuant to subsection 501(1) of the Migration Act 1958 – whether the applicant passes the character test – where the applicant has a substantial criminal record pursuant to subsection 501(7) of the Migration Act 1958 – applicant does not pass the character test – whether the discretion to refuse to grant the applicant a visa should be exercised – application of Direction No 79 – protection of the Australian community – best interests of minor children – expectations of the Australian community – contribution by way of employment history and volunteer work – ties to Australian community – whether the applicant will face financial hardship or emotional distress if removed – whether the other considerations outweigh the primary considerations – other considerations do not outweigh primary considerations – discretion to refuse to grant the applicant a visa exercised – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Migration Act 1958
Cases
Ali v Minister for Home Affairs [2019] FCAFC 93
Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113
Cameron v The Queen (2002) 209 CLR 339
FYBR v Minister of Home Affairs [2019] FCAFC 185
Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158
Pavey and Minister for Home Affairs [2019] AATA 4198
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Taulahi v Minister for Immigration and Border Protection[2016] FCAFC 177
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Minister for Immigration, Citizenship and Multicultural Affairs, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (20 December 2018)
REASONS FOR DECISION
Member W Frost
10 November 2020
INTRODUCTION
This proceeding concerns a decision by a delegate of the Respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister), to refuse to grant the Applicant, Mr Pratish Shrestha, a Skilled (Residence) (Class VB) visa (Visa).
In August 2020, Mr Shrestha’s 2017 application for the Visa was refused under subsection 501(1) of the Migration Act 1958 (Act), because a delegate of the Minister was not satisfied that Mr Shrestha passed the character test under the Act due to having a ‘substantial criminal record’, in circumstances where he had been ‘sentenced to a term of imprisonment of 12 months or more’. In this regard, in 2016, Mr Shrestha was sentenced in the Local Court in Dubbo, New South Wales (NSW), to a term of imprisonment of 18 months for each of two offences to be served concurrently. This 18 month sentence was subsequently confirmed by the District Court of NSW, however Mr Shrestha’s imprisonment was suspended on condition that he enter a good behaviour bond for the equivalent period of time. Mr Shrestha has remained in the community since the commission of the offences in 2015.
This year, Mr Shrestha applied to the Administrative Appeals Tribunal (Tribunal) for review of the decision to refuse his application for the Visa. On 26 October 2020, a hearing by the Tribunal was held using video conferencing technology in circumstances where the Tribunal had determined that all in-person hearings at registries of the Tribunal across Australia were to cease in response to the COVID-19 pandemic, unless there were exceptional circumstances. The Tribunal is satisfied that the parties were given a reasonable opportunity to give evidence and present their arguments at the hearing, noting sections 33A and 39 of the Administrative Appeals Tribunal Act 1975 (AAT Act).
The Tribunal has considered all documents in the bundle of documents filed in this proceeding on 8 September 2020, pursuant to section 501G of the Act,[1] together with the parties’ respective Statement of Facts, Issues and Contentions,[2] and the following additional documents filed by the parties:
[1] Exhibit R1, known as the ‘G-Documents’.
[2] Applicant’s Statement of Facts, Issues and Contentions dated 2 October 2020 and Respondent’s Statement of Facts, Issues and Contentions dated 16 October 2020.
(i)Witness Statement of Mr Shrestha;[3]
(ii)Statutory Declaration of Ms Krishlyn Chetty dated 6 October 2020 with attachments A - D;[4]
(iii)Statement of Mr Umesh Napit dated 1 October 2020;[5]
(iv)Statement of Mr Rabin Manandhar dated 28 September 2020;[6]
(v)Statement of Mr Anish Dev Panthee dated 27 September 2020;[7]
(vi)Reference Letter of Ms Tenelle Bond dated 24 September 2020;[8]
(vii)Reference Letter of Mr Jeremy Norris dated 21 September 2020;[9]
(viii)Letter comprising a supplementary report of Dr Susan Pulman dated 15 July 2020, also attaching her report of 15 July 2020;[10]
(ix)Victim Impact Statement dated 13 June 2016;[11]
(x)Agreed Facts dated 18 May 2016.[12]
[3] Exhibit A1.
[4] Exhibit A2.
[5] Exhibit A3.
[6] Exhibit A4.
[7] Exhibit A5.
[8] Exhibit A6.
[9] Exhibit A7.
[10] Exhibit A8. Dr Pulman’s report of 15 July 2020 was also contained in Exhibit R1, ‘G’ Document number ‘G22’, pages 108-113.
[11] Exhibit R2.
[12] Exhibit R3.
BACKGROUND
Mr Shrestha is a 35 year old citizen of Nepal.[13]
[13] Exhibit R1, G7, page 37.
On 16 October 2006, Mr Shrestha arrived in Australia on a Student (Class TU) (subclass 573) visa.[14] Mr Shrestha has resided in Australia for 14 years and has not left Australia since arriving in 2006.[15]
[14] Exhibit R1, G8, page 38.
[15] ibid.
Between January 2007 and March 2015, Mr Shrestha resided in Sydney, NSW.[16]
[16] Exhibit R1, G10, pages 43-56.
In March 2015, Mr Shrestha relocated to Dubbo, NSW.[17]
[17] ibid.
On 19 December 2015, Mr Shrestha committed the offences of ‘Enter Building/Land with Intent Commit Indictable Offence’ and ‘Assault with Act of Indecency’ (Offences).[18] The Offences involved Mr Shrestha, after a street Christmas party in Dubbo, entering the unlocked front door of a woman’s family home without consent and indecently assaulting her as she lay in bed. This included touching ‘the outside of her underwear and the vaginal area and to her bottom’.[19] The victim ‘kicked out at Mr Shrestha and demanded, “What are you doing here?”’[20] The Dubbo Local Court found that the indecent assault was not the result of any invitation, behaviour or conduct by the victim such that Mr Shrestha could misguidedly justify what he did.[21] Mr Shrestha was highly intoxicated as a result of his drinking at the party and cannot recall committing the Offences.[22]
[18] Exhibit R1, G5, pages 17-19.
[19] Exhibit R1, G6, page 32.
[20] Exhibit R3.
[21] Exhibit R1, G6, page 32.
[22] Exhibit R1, G18, pages 99-101; Transcript of Proceedings, pages 12-14.
On 4 July 2016, the NSW Community Corrections Office in Dubbo (Community Corrections) prepared a Pre-Sentence Report in relation to Mr Shrestha for the Dubbo Local Court.[23] This Pre-Sentence Report relevantly stated that:
[23] Exhibit R1, G18, pages 99-101.
Substance use
Mr Shrestha described himself as being a social drinker, denying any regular drinking pattern prior to the commission of the aforementioned offences. In the past Mr Shrestha reported that he predominantly consumed alcohol on special occasions, reporting to consume a maximum of 3 standard drinks on any occasion. It is noted that Mr Shrestha had consumed an excessive amount of alcohol at the time of offence, reporting to have consumed approximately 12 full strength beers and approximately 4 shots of whiskey within a five minute period leading up to the offence.
Since being convicted of the aforementioned offences, Mr Shrestha reported to have ceased all alcohol consumption. Accordingly, it was suggested that he contact Drug and Alcohol Services to participate in an assessment and to acquire information surrounding the responsible consumption of alcohol. Enquiries were conducted with Community Drug and Alcohol Services who confirmed that Mr Shrestha contacted their Service as suggested, however advised Mr Shrestha is ineligible to participate in an assessment due to his temporary residency and not being covered by either Medicare or private health insurance.
Sex offending
During the adjournment Mr Shrestha attended a Pre-Sentence consultation with a CSNSW Senior Psychologist on 29th June 2016. The purpose of this consultation was to provide a risk assessment of Mr Shrestha’s suitability for and access to sex offender treatment programs. In addition, such assessment is able to assist this Service to identify risk factors with the purpose of defining case management/planning strategies, regardless of whether he is sentenced to a custodial or community based sentence.
Perusal of the resultant report and discussion with the CSNSW Senior Psychologist indicated that a Static-99 assessment was undertaken with Mr Shrestha, resulting in a score which placed him in the moderate to low risk category for sexual re-offence.
Attitude to offending
The Police facts pertaining to the offences were discussed with Mr Shrestha where he reported to have had no recollection of his offending behaviour…A comprehensive discussion was undertaken with Mr Shrestha regarding the offences where he expressed attitudes that would reflect that he regrets his behaviour, expressing shame and remorse, acknowledging that his behaviour was inappropriate and unacceptable. Mr Shrestha also expressed concern surrounding his criminal convictions and how they may jeopardise his professional future in Australia.
RISK LEVEL AND CRIMINOGENIC NEEDS
According to the Level of Service Inventory – Revised actuarial risks/needs assessment tool, the offender is assessed as a low risk of re-offending.
The identified criminogenic needs are:
·Alcohol/drug problems
·Sex offending
ASSESSMENT AND COMMUNITY BASED SENTENCING OPTIONS
Assessment
Mr Shrestha has had no prior contact with Community Corrections. Mr Shrestha described his past relationship with alcohol as being minimal, however alleged to have engaged in excessive alcohol consumption in company of his colleagues at a social gathering. Throughout the assessment period Mr Shrestha claimed to have had no recollection of the events leading up to the offence due to his level of intoxication, however expressed regret and verbalised significant concern surrounding how his sentence could now impact his professional career plans and permanent residency in Australia. Enquiries and assessments conducted through the term of the adjournment period indicated that Mr Shrestha’s risk of re-offence maybe [sic] managed via psychological intervention and/or sex offender programs. In the event that the offender is sentenced to a community based order the supervision would focus on external monitoring and risk management in the Community.
Supervision by Community Corrections
It is considered the offender would benefit from a period of supervision by Community Corrections. Case management strategies would include;
- Consultation with the CSNSW Senior Psychologist for appropriate sexual offending treatment options/recommendations in the local area.
- Referral to Drug and Alcohol Services or programs to access expert assistance around safe levels of alcohol consumption.
- Monitoring compliance with Order conditions.
Community service order assessment – suitable
The offender has been assessed as suitable for a community service order as per the requirements of s86(1) of the Crimes (Sentencing Procedure) Act 1999 and has signed an undertaking as required by s86(5). If a community service order is made, he is to report to Dubbo Community Corrections within 7 days. [emphasis in original]
On 7 July 2016, the Dubbo Local Court sentenced Mr Shrestha to 18 months imprisonment for each of the two Offences, to be served concurrently, with a non-parole period of 12 months.[24] In the course of the Local Court proceedings, Magistrate Stewart relevantly stated that:[25]
[24] Exhibit R1, G5, pages 17-19; G6, pages 20-36.
[25] Exhibit R1, G6, pages 20-36.
On 19 December 2015, the offender was invited to a street Christmas party, consumed eight or nine full strength beers and three or four shots of whiskey. The victim left the party around 3am and went to bed. She carried an esky from her neighbours to the front door, assisted by the offender. She went inside and closed the door, she did not lock the door as her husband was still at a nearby party.
The offender later entered through the front door, went to the bedroom and indecently assaulted the victim as she lay in her bed. The victim thought it was her husband, but opened her eyes and saw the offender. The ensuite light came on and she saw the offender lay down on the floor at the foot of the bed, then get up and walk out of the room.
The offender was challenged by the victim's husband. The offender left the house, but was detained nearby and police were called. He took part in an interview with police. He admitted his presence at the party, but denied being in the house of the victim, or assaulting her.
Assessment of criminality. The guilty plea to the enter building with intent, is an admission of an intention to assault the victim, and an admission to committing an act of indecency upon her. The indecent assault need not have occurred in the complainant’s home, it could for example or for instances, have occurred at the party. It is the overall conduct which must be examined to determine the objective seriousness of each matter by entering the complainant’s home with the admitted intention of assaulting her. The aggravated feature of the offence occurring within the victim’s home is present pursuant to s 21(2)(e)(b) of the Crimes (Sentencing Procedure) Act.
That aggravating feature exists in relation to both offences, entering a building with intent need not be the home of a victim and it is therefore not double counting to take into account that factor.
The indecent nature of the assault was not in anyway, shape or form the result of behaviour or invitation, or conduct by the victim, there is nothing to suggest any perception of familiarity by the offender, where he could by some misguided thought process justify what he did. The touching of the victim commenced at her knee and moved to the inside of her leg, the outside of her underwear and the vaginal area and to her bottom. Although the touching involved the outside of under garments, the contextual basis of the offending elevates it for both charges to around mid level.
…
The prospects of reoffending are assessed by Corrective Services New South Wales senior psychologist as moderate to low risk category for sexual reoffence. Another form of assessment on the same PSR report indicated a low risk of offending.
Mr Shrestha works as a labourer at a local abattoir and earns $635 a week. He has no criminal history which is a mitigating factor under 21A(3)(e) of the Crimes (Sentencing Procedure) Act. Is a single man with no family in Australia, although he does have a cousin at least living in Sydney, by virtue of the documents tendered on his behalf. He is an accounting graduate. I accept that the offence is out of character. He has expressed remorse through a letter of apology and through a number of testimonials tendered by consent.
He says that he is thankful that no one was hurt. Such wording may simply be an inappropriate use of words. Clearly the victim was, and remains significantly traumatised, as evidenced by the victim impact statement, which she stoically read to the Court.
I note in the pre-sentence report that the offender claims that he had “no recollection of the events leading up to the offence” due to his level of intoxication. I reject that suggestion. The facts indicate that he took part in an interview with police, admitted his presence at the party, but denied being in the victim’s house or assaulting her. Where there is some information at sentencing which deviates from the agreed facts I shall proceed to sentence on the agreed facts, per the CCA decision of Khanwaiz.
I have regard to s 3A and 5 of the Crimes (Sentencing Procedure) Act, including the need for both general and specific deterrence and to make Mr Shrestha accountable for his actions, there is a strong need in this case for specific and general deterrence. Sentencing purposes also include the need to recognise the harm done to the victim of a crime and to protect the community from the offender.
I am firmly of the opinion that no other sentence other than one of imprisonment is warranted…Applying the discount for the plea, the sentence for enter building with intent is 18 months. An identical term is appropriate for the indecent assault…Notwithstanding the offender’s lack of criminal antecedents, age and other factors, I am not of the opinion that it is appropriate to suspend the sentence or to order an ICO assessment. Stand up please Mr Shrestha.
MR SHRESTHA YOU ARE SENTENCED TO A TERM OF IMPRISONMENT OF 18 MONTHS. I MAKE A FINDING OF SPECIAL CIRCUMSTANCES, NOTNG THAT IT IS YOUR FIRST TIME IN CUSTODY AND A NEED FOR ALCOHOL REHABILITATION.
THE NON-PAROLE PERIOD IS 12 MONTHS, COMMENCING TODAY 7 JULY 2016. YOU ARE TO BE RELEASED TO PAROLE ON 6 JULY 2017. PAROLE IS TO BE SUPERVISED AND I RECOMMEND THAT YOU TAKE PART IN A SEX OFFENDER’S COURSE.
…
BAIL IS MADE PENDING APPEAL TO THE DISTRICT COURT HAVING BEEN SENTENCED TO A PERIOD OF IMPRISONMENT EARLIER TODAY. THE DPP ARE NOT OPPOSED TO BAIL PROVIDING APPROPRIATE CONDITIONS ARE IMPOSED.
On 25 August 2016, the District Court of NSW confirmed Mr Shrestha’s conviction for the Offences, but varied the sentence imposed by the Local Court. The District Court sentenced Mr Shrestha to 18 months imprisonment, to be suspended on Mr Shrestha entering a bond to be of good behaviour for that period of time, concluding on 24 February 2018.[26]
[26] Exhibit R1, G5, pages 17-19.
In July 2017, Community Corrections relevantly wrote as follows:[27]
Mr Shrestha has been under Community Corrections supervision pursuant to a Section 12 Good Behaviour Bond since August 25th 2016. Mr Shrestha is currently being case managed as a low risk client, and during his time under supervision he has maintained stable accommodation and employment there are presently no concerns in regards to his stability, or community behaviours. At this juncture it is anticipated Mr Shrestha will successfully complete his Order upon its expiry on February 24th 2018.
[27] Exhibit R1, G15, page 90.
In October 2017, Community Corrections wrote to Mr Shrestha that:[28]
As from 23 October 2017, you are no longer obliged to report to this Service as the early termination proviso on your Good Behaviour Bond has been approved.
It should be noted, however, that you are still bound by all conditions of the bond until 24 February 2018.
[28] Exhibit R1, G16, page 91.
On 12 September 2017, while subject to the 18 month good behaviour bond,[29] Mr Shrestha applied to the then Department of Immigration and Border Protection for the Visa,[30] being a Skilled (Residence) (Class VB) visa, which is a permanent visa allowing a person to remain in Australia indefinitely.[31] From this date, and as a result of this Visa application, Mr Shrestha was granted a Bridging A (Class WA) visa.[32]
[29] Exhibit R1, G5, pages 17-18; G15, page 90; G16, page 91; Exhibit A1, page 3.
[30] Exhibit R1, G10, pages 43-56.
[31] accessed on 27 October 2020.
[32] Exhibit R1, G2, page 7.
On 18 February 2020, the Minister’s Department sent Mr Shrestha a ‘Notice of intention to consider refusal of your visa application under section 501(1) of the Migration Act 1958’, because of information indicating that he did not pass the ‘character test’.[33] Mr Shrestha was invited to comment on the information and provide reasons why his application for the Visa should not be refused.
[33] Exhibit R1, G9, pages 39-42.
In March and April 2020, Mr Shrestha’s representative provided a written statement and supporting evidence in response to the Department’s notice of February 2020.[34]
[34] Exhibit R1, G2, page 7; G10-G22, pages 43-113.
On 17 August 2020, a delegate of the Minister decided to refuse Mr Shrestha’s application for the Visa under section 501(1) of the Act.[35] On 19 August 2020, Mr Shrestha’s representative was notified of the decision by letter of the same date.[36] The letter notifying Mr Shrestha of this decision also confirmed that his Bridging A (Class WA) visa granted in September 2017 ‘has been cancelled by operation of law’.[37] As a result, Counsel for Mr Shrestha told the Tribunal that his client was currently an ‘unlawful non-citizen’ in Australia.[38] However, Mr Shrestha has not been in immigration detention since this time, despite efforts by his representative to engage with the Minister’s Department to arrange for him to be taken into detention and Mr Shrestha’s stated willingness to comply with Australian immigration laws.[39]
[35] Exhibit R1, G2, pages 7-9; G3, page 11; G4, pages 12-16.
[36] Exhibit R1, G2, pages 7-9.
[37] ibid., page 7.
[38] Transcript of Proceedings, page 11.
[39] Exhibit A2.
On 24 August 2020, Mr Shrestha applied to this Tribunal for merits review of the delegate’s Visa refusal decision.[40]
LEGISLATION & POLICY
[40] Exhibit R1, G1, pages 1-6.
The Act
Section 501 of the Act relevantly provides that:
(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
...
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7));
…
(7) For the purposes of the character test, a person has a substantial criminal record if:
...
(c) the person has been sentenced to a term of imprisonment of 12 months or more;... [emphasis in original]
Section 500 of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under section 501 of the Act.
The Direction
Under section 499 of the Act, the Minister may give written directions to a person or body having functions or powers under that Act, provided the directions are about the performance of those functions or the exercise of those powers (subsection 499(1)) and are not inconsistent with the Act or the Regulations made under it (subsection 499(2)). The person or body to whom the directions are given must comply with them (subsection 499(2A)).
The Minister has made a direction under section 499 of the Act for the purposes of decisions made under, among others, section 501 of the Act, being Direction 79 titled, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s501CA (Direction 79), which applies to a decision made in relation to the application for the Visa made by Mr Shrestha.
The Preamble to Direction 79 sets out its objectives, general guidance and principles, relevantly including:
(a)under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test (paragraph 6.1(2));
(b)where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse the visa given the specific circumstances of the case (paragraph 6.1(2));
(c)the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens (paragraph 6.2(1));
(d)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 (paragraph 6.3(1));
(e)the Australian community expects that the Australian Government can and should refuse entry to non-citizens if they commit serious crimes in Australia or elsewhere (paragraph 6.3(2));
(f)a non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children, should generally expect to forfeit the privilege of staying in Australia (paragraph 6.3(3));
(g)in some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify refusing the visa (paragraph 6.3(4));
(h)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, or contributing to, the Australian community for only a short period of time, however Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age (paragraph 6.3(5));
(i)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia (paragraph 6.3(6));
(j)the length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa application should be refused (paragraph 6.3(7)).
Paragraph 7(1) of Direction 79 provides that a decision-maker must take into account the considerations in Part B to determine whether a non-citizen will forfeit the privilege of being granted a visa. That is, Part B of Direction 79 relates to visa applicants.
Part B of Direction 79 identifies the considerations relevant to deciding whether to refuse a non-citizen’s visa. It comprises three ‘primary considerations’ and four specified, but non-exhaustive, ‘other considerations’ which must be taken into account in relation visa applicants. Paragraph 11(1) in Direction 79 sets out the three ‘primary considerations’ as follows:
(a)Protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);
(b)The best interests of minor children in Australia (Primary Consideration 2); and
(c)Expectations of the Australian community (Primary Consideration 3).
Paragraph 12(1) in Direction 79 lists the following four ‘other considerations’ that must be taken into account where relevant:
(a)International non-refoulement obligations;
(b)Impact on family members;
(c)Impact on victims; and
(d)Impact on Australian business interests.
Paragraph 8 of Direction 79 states that:
(1) Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
ISSUES
The issues for the Tribunal in this proceeding are:
(a)whether Mr Shrestha passes the character test under subsection 501(6) of the Act; and
(b)if not, whether the Tribunal should exercise the discretion in subsection 501(1) of the Act to refuse to grant Mr Shrestha the Visa.
EVIDENCE
Mr Shrestha
Mr Shrestha filed a written statement dated 27 September 2020 in support of his application to the Tribunal, which relevantly said:[41]
[41] Exhibit A1.
Family
I am currently single.
I want to get married and settled down. However, given my current immigration situation, I will have to wait until my migration status is settled. My parents also have a desire for me to get married.
I have a cousin named Arbin Shrestha that resides in Australia. In particular, my cousin resides in Auburn, New South Wales. Arbin works as a Data Analyst at Job Ready Solutions. Arbin is about six months older than me. Arbin and I grew up together since childhood. In that context, we enjoy a continuing and close relationship.
Arbin stayed with me for several weeks when he first arrived in Australia in about 2009. We would meet at least once a month when I was residing in Sydney. However, after I moved to Dubbo, we stayed in touch via telephone. That said, I still consider myself close to Arbin. He is family.
Criminality
I wholeheartedly acknowledge that I committed the offences of entering building/land with intent to commit an indictable offence and commit an assault with an act of indecency (the offences). At the time, I was about 30 years of age while living alone in Dubbo. At that time, I was working full-time at a local abattoir and as a labourer at Fletcher International Experts [sic].
I worked Monday to Friday. Every weekend, I would play cricket in Dubbo with other members of the Australian community. I enjoyed playing cricket, keeping active, and connecting with other residents of Australia.
The background of the offences is as follows. On a Saturday afternoon, I was busy playing cricket. I missed a few phone calls from Earl Andrews (a workmate at the local abattoir). I subsequently telephoned Earl after the game and was invited to his house to socialise and have a few drinks.
Originally, I did not want to go to Earl’s place. However, Earl mentioned other work colleagues (including our supervisor) would be coming over to his house. Accordingly, I changed my mind and thought it would be a good opportunity to socialise with my work colleagues.
I drove to Earl’s house with a six-pack of beer (which would be shared between work colleagues). Upon reaching Earl’s house, I saw many people and was informed that there was a street party being held in conjunction with the neighbours.
After consuming a couple of beers, Earl offered me to stay at his place that evening. Subsequently, after agreeing to stay at Earl’s place, we started playing a drinking game (where the loser had to skull a drink). I lost the game a few times. I consumed beers and about five to seven whiskey shots.
I became very heavily intoxicated. Subsequently, I committed the offences that are under close consideration by this Tribunal.
Remorse
Independent of the offences, I have no other criminal history in Australia. I am very remorseful and ashamed about the way I behaved concerning the offences. I deeply regret the hurt that I caused the victim, her family, and my work colleagues in Australia.
I will never again commit any further criminal offences in Australia. I am deeply regretful for my conduct concerning the offences.
Criminal Penalty
Concerning the offences, my 18-month sentence of imprisonment was fully suspended on entering a ‘section 12’ good behaviour bond between 25 August 2016 and 24 February 2018. I had to visit Dubbo Community Corrections every fortnight, which subsequently changed to once a month.
On or about 23 October 2017, I got early termination on my good behaviour and did not have to report to Dubbo Community Corrections any longer. During this time, I continued working as a labourer/cleaner at an abattoir until September 2017. Subsequently, I also commenced working at Hogs [sic] Breath Cafe as a bar attendant and got promoted to a restaurant supervisor.
Effect of Temporary Visa
At the relevant time, I was on a temporary visa and not eligible to take courses with Community Drug and Alcohol Services. When I was under supervision, I learned about the harmful effects of alcohol and ways to stay away from alcohol abuse. I discussed the same with officers associated with community corrections.
I understand the negative impact that alcohol has on society and the destructive impact that alcohol abuse has on the Australian community. My own experience of being sentenced to a term of imprisonment, having my visa application refused, and my future in Australia placed in grave jeopardy have all taught me that alcohol abuse leads to adverse consequences.
I have read many self-development books and watched motivational videos to assist in my rehabilitation and advancement in life.
Consequences of Deportation
In circumstances where I am unsuccessful in my appeal proceedings before the Tribunal, I will face financial hardship in Nepal. Both my parents are retired.
My parents borrowed money to send me to Australia for my education. I have financial debts myself.
If I have to return to Nepal, this will have devastating consequences for my family. I will not be able to earn an Australian income to support my family in Nepal. If I return to Nepal in the circumstances in which I face, my family will likely face great criticism from other members of the community in Nepal.
Nepalese society is generally conservative. The neighbours of my parents and other associates will likely criticise my family and me for being deported from Australia. Although I readily appreciate that I committed very serious offending in Australia, I have paid my penalty and sought to contribute to the Australian community.
Current Health
After my visa got refused, it was very hard for me to sleep and focus properly. I had been busy working and suddenly had to resign from my jobs due to my current visa situation. I have had no option but otherwise to stay in my room (which is very hard).
I am very stressed at the moment as a result of my immigration troubles. I hope that my life can go back to normal.
Education in Australia
I have a strong educational history in Australia:
• Holmes Institute Sydney. Bachelor of Professional Accounting (2012).
• Global College Sydney. Diploma of Accounting (2007).
• Tactical Training Group Sydney. Certificate III in Hospitality (2009).
The relevant educational courses I undertook in Australia cost a substantial sum of money.
Employment
I also have a very strong employment history in Australia:
• Jimmy Barnett Espresso Bar, Dubbo. Cafe Manager (i.e. job offered subject to a lawful visa being granted).
• The Establishment Bar, Dubbo. Bartender (1 January 2019 – present). Currently on personal leave due to the current visa situation.
• Hogs Breath Café, Dubbo. Bartender (August 2019 to March 2020).
• BP Dubbo. Head Barista (June 2008 to August 2020).
• Hogs Breath Café, Dubbo. Restaurant supervisor (September 2017 to January 2019).
• Fletcher International Export, Dubbo. Labourer and cleaner (March 2015 to September 2017).
• Searock Bar and Grill, Sydney. Bar staff (December 2014 to March 2015).
• Bondi Pizza, Sydney. Bar staff (June 2014 to May 2015).
• Zenobia Restaurant Sydney. Bar Staff (April 2014 to May 2014).
• The World Bar, Sydney. Floor supervisor and bar staff (March 2008 to March 2014).
• External Cleaning Services, Sydney. Cleaner (January 2007 to February 2008).
Miscellaneous Matters
I have considered Australia my home for the last 14 years. My extremely poor decision of getting very badly intoxicated and committing the offences has caused me great sadness. I take full responsibility for my offending and my actions on the evening in question.
I have always helped small businesses and provided my knowledge, skills, and services to advance Australian businesses. For example, I resigned as a restaurant supervisor and went to help the owners opening a new bar in Dubbo. Recently, I resigned from BP and decided to help a new cafe opening in Dubbo.
All the people that I have worked with in the past have been very happy with my employment services. They will also be happy to hire me again in the future. I am reliable, hard-working, dedicated to my employment (when working), and assisting Australian businesses.
I have always donated my clothes to the Salvation Army. After my visa got refused, and before moving to Sydney, I donated some of my beloved clothes to charity as well. I have always participated and volunteered in Australian Nepalese community-based activities in both Sydney and Dubbo.
If my visa is granted, I plan to return to the Dubbo community and contribute actively. I will avoid alcohol (as I have done for a long time now). This whole nightmare experience has taught me various lessons. I am truly sorry. Please give me a second chance at life in Australia.
Examination-in-Chief
Mr Shrestha gave evidence to the Tribunal by video from Sydney. Mr Shrestha told the Tribunal that he had recently arrived from Dubbo to have the moral support of his friend for the hearing.
Mr Shrestha was referred by his Counsel to his aforementioned written statement and he confirmed that it was true and correct to the best of his knowledge.
The Tribunal was told by Mr Shrestha that he could recall part of the evening when the Offences occurred in 2015.[42] Mr Shrestha said he was ‘very ashamed’ of the Offences, because he had ‘hurt someone’, being the victim, but this also included his work colleagues. Mr Shrestha said that he had ‘ruined’ his career as a result of the Offences and ‘did things I shouldn’t have done’.[43] Mr Shrestha acknowledged that alcohol was involved in his offending, but denied drinking alcohol since the offending.[44]
[42] Transcript of Proceedings, pages 12-14.
[43] ibid., page 12.
[44] ibid., pages 12-13.
Mr Shrestha said that he did ‘not really’ have a support network in Australia, but had friends in Australia, Mr Umesh Napit based in Sydney and Mr Rabin Manandhar based in Adelaide, both of whom gave evidence to the Tribunal (which is set out below in these reasons).[45] Mr Shrestha confirmed that he had a relationship with Mr Manandhar’s six year old son and he was ‘like his uncle’. Mr Shrestha said that ‘every now and then’ he and Mr Manandhar’s child converse via FaceTime. Mr Shrestha also confirmed that Mr Manandhar has a wife in Australia.[46]
[45] ibid., page 13.
[46] ibid.
Mr Shrestha was asked about the day of the incident which led to the Offences. Mr Shrestha told the Tribunal that he was playing cricket as he always did on a Saturday in Dubbo. He was invited to a party by a work colleague, although he was reluctant to attend, but he did so because his work supervisor and other colleagues were attending. Mr Shrestha thought it ‘might be a good opportunity to get to know each other outside of work’. Mr Shrestha recalled driving to the party and bringing a ‘six-pack’ of beer with the intention of consuming only one or two. Mr Shrestha said he played drinking games involving shots of whiskey and drinking full glasses of beer. Mr Shrestha said he recalled playing cricket in the street with the victim’s children, but all he could remember after that point in the evening was the victim’s husband coming at him with a bat ‘to hit me’.[47]
[47] ibid., page 14.
Mr Shrestha told the Tribunal that he could not remember how he got inside the victim’s house and did not have any recollection of his offending.[48]
[48] ibid.
Mr Shrestha said the experience had taught him not to break or go against the law. He was ‘highly intoxicated’ at the time and had ‘not really’ been intoxicated like that previously. Mr Shrestha said at the time he ‘just wouldn’t say no to the new people’.[49] Mr Shrestha said that if he obtained a visa to remain in Australia, he had a job waiting for him in Dubbo as a Café Manager. Mr Shrestha told the Tribunal that he ‘wouldn’t drink’ and had learnt how to say ‘no to people’ if he were again invited to a party with work colleagues. He now drives everywhere to avoid drinking alcohol because he does not ‘want to be in trouble anymore’.[50]
[49] ibid., page 15.
[50] ibid.
Mr Shrestha confirmed that he had lived in Australia for 14 years. Mr Shrestha confirmed that he was a Nepalese citizen and has two parents and an older brother in that country. His parents live in Kathmandu and his brother lives in another town.[51]
[51] ibid., pages 15-16.
Mr Shrestha said he came to Australia for better educational opportunities and a career in accounting. However, because of his police record he has not been able to find employment in this field. As a result, he works in the hospitality industry. Mr Shrestha told the Tribunal that he had been financially supporting himself while in Australia and also ‘sometimes’ had the support of friends. Mr Shrestha’s parents had assisted him initially with a bank loan for his studies in Australia. However, Mr Shrestha said he would now have to support his parents as they are both retired. The income of Mr Shrestha’s brother was said to be ‘not that strong’. The main reason Mr Shrestha remains in Australia is for his career and to repay his parents the bank loan for his studies. In this regard, Mr Shrestha confirmed that his studies in Australia took approximately 5 to 6 years to complete and included a Bachelor of Professional Accounting. Mr Shrestha was again asked about why he could not secure an accounting job and he stated that prospective employers ask for a national police record check, which identifies the Offences, and also because he was now more experienced in the hospitality sector.[52]
[52] ibid., pages 16-17.
Mr Shrestha was also asked what would happen if he returned to Nepal and he told the Tribunal that ‘it’s going to be very hard for me, for my parents’. He said that if he went back without Australian permanent residency, other relatives and neighbours would be critical and his parents would also have to face this criticism. Mr Shrestha told the Tribunal that it would be ‘hard’ to work in Nepal because the education system is different, including in relation to accounting.[53]
[53] ibid., page 17.
Mr Shrestha confirmed that he is single and has one cousin in Australia, whom he speaks to on the telephone and meets in person when he is in Sydney. Mr Shrestha was asked what he tells his friends about the incident and he said that he tells them what he can ‘recall’. Counsel for Mr Shrestha further asked him what makes him sorry if he does not remember the incident that led to the Offences and he replied that it was ‘when I saw the victim in the court, it made me emotional’, after he had pled guilty. Mr Shrestha confirmed that there was no criminal trial regarding the Offences due to his guilty plea. Mr Shrestha told the Tribunal that he considered the sentence to be ‘very harsh’ but had to accept it.[54]
[54] ibid., page 18.
Mr Shrestha stated that he met with community justice officers and talked about his daily life. He met them once before he was sentenced and then during the 18 month period of his good behaviour bond. This occurred every fortnight for the first 3 months and then once a month until Mr Shrestha had 5 or 6 months remaining on his good behaviour bond and was told he was no longer required to attend because of his good behaviour.[55]
[55] ibid., page 19.
Mr Shrestha was asked about his voluntary and community work in Australia and told the Tribunal that he helped his friend Mr Umesh Napit in relation to his involvement with ‘Guthi Australia’, a Nepalese cultural association. Mr Shrestha assisted ‘every now and then’ with setting up tents, chairs, cleaning and doing ‘whatever’ was required. The purpose of Guthi Australia was to ‘save the Nepalese culture in Australia’ amongst the Nepalese community.[56]
[56] ibid., page 19.
Mr Shrestha told the Tribunal that if he were granted the visa he planned to return to Dubbo where he had a job offer as a Café Manager. Mr Shrestha said he would be focused on working to clear his debt with his parents, on his credit card and personal loans, which includes legal fees.[57] Finally, Mr Shrestha was asked by his Counsel why he wanted to get his visa. Mr Shrestha said that his ‘career is in Australia’ and he considers Australia his ‘homeland’. He said a return to Nepal would be ‘hard’ for himself and his parents and that there were more opportunities in Australia. Mr Shrestha told the Tribunal that at the time of his offending he was intoxicated and was ‘very remorseful’ for that offending. He said that he had committed no minor crime after the Offences and he would never again commit an offence. Mr Shrestha again said he was worried about his parents.[58]
[57] ibid., page 20.
[58] ibid.
Cross-examination
By way of cross-examination, Mr Shrestha was taken to the report of Dr Susan Pulman which stated that he had ‘described himself as a social drinker and reportedly does not drink at home’.[59] Mr Shrestha was asked to clarify whether he still drank alcohol and he stated that he was ‘not drinking at the moment’. Mr Shrestha went on to say that he worked at a cocktail bar in Dubbo and was ‘sometimes’ required to taste test certain cocktails that he had mixed. However, Mr Shrestha stated that he always drove home following his shift at the bar.[60]
[59] Exhibit R1, G22, pages 101-113.
[60] Transcript of Proceedings, page 21.
Mr Shrestha confirmed that he had read the risk management recommendations made by Dr Pulman regarding drug and alcohol counselling and stated that without permanent residency he could not access these services. The Minister’s representative noted that there was no obligation on him from a court to undertake rehabilitation, but that it was a recommendation made by Dr Pulman in July this year. Mr Shrestha confirmed that he had not sought to access counselling services following Dr Pulman’s report because in 2016 he was told that he was ineligible for these services without permanent residency.[61]
[61] ibid., pages 21-22.
Mr Shrestha was further referred to Dr Pulman’s risk management recommendations and asked whether he had taken any steps to engage a counsellor regarding his Offences. Mr Shrestha confirmed that he had not and said that he considered the outcome would be the same; that he could not access counselling services because he was not a permanent resident of Australia. However, Mr Shrestha also confirmed that he had not made any enquiries regarding his ability to access these services.[62]
[62] ibid., page 23.
Mr Shrestha was taken to sentencing remarks from the Magistrate in the Dubbo Local Court in which it was noted that ‘[h]e says that he is thankful that no one was hurt. Such wording may simply be an inappropriate use of words. Clearly the victim was, and remains, significantly traumatised, as evidenced by the victim impact statement, which she stoically read to the Court’.[63] Mr Shrestha was also referred to a Letter of Apology that he wrote in February 2018, which did not mention the victim of the Offences. Mr Shrestha was asked what changed so that he now felt sorry for the victim and he again told the Tribunal that it occurred when he saw the victim at the Local Court in 2016 and after her reading of the victim impact statement following which Mr Shrestha said he ‘just felt really bad’ because he had assaulted her. Mr Shrestha also said that in his Letter of Apology he had meant that he was glad no one was physically hurt.[64]
[63] Exhibit R1, G6, page 32.
[64] Transcript of Proceedings, pages 23-24.
Mr Shrestha was again asked why he had not undertaken any counselling and he stated that it was because he was not allowed due to his visa status in Australia, although he had not thought of accessing a private counselling service.[65]
[65] ibid., page 24.
There was no re-examination of Mr Shrestha by his Counsel, although the Tribunal asked Mr Shrestha about the employment status of his parents, especially his father, in circumstances where there were inconsistencies between what Mr Shrestha had told Dr Pulman (she reported that his parents ‘continue to live and work in Nepal’ and that his father ‘is employed in the banking industry’) and what he had told the Tribunal. Mr Shrestha confirmed that his statement recorded by Dr Pulman was incorrect and that both his parents are retired, including his father for ten years.[66]
[66] ibid.
Mr Shrestha also confirmed that his statement in the Letter of Apology from 2018 that he had ‘undertaken psychological counselling, which has taught me the harmful effects of alcohol’, was a reference to one counselling session he attended before he was sentenced for the Offences in July 2016. Mr Shrestha said that ‘they told me if you have to come back again, I will call you, but they never call me’.[67]
[67] ibid., page 25.
Mr Anish Dev Panthee
Mr Panthee, a friend and former colleague of Mr Shrestha on a student visa in Australia, provided a written statement dated 27 September 2020 in support of Mr Shrestha’s application before the Tribunal, which relevantly stated that:[68]
[68] Exhibit A5 (subheadings have been removed from the extracted text in these reasons).
In my dealings with Pratish, he is a genuine and humble person. Pratish has helped people in need, especially newcomers to the area of Dubbo. If Pratish is removed from Australia, I believe this would be a great loss for the local community of Dubbo.
On a personal level, I will also be disappointed and upset to see Pratish removed from Australia.
If Pratish is granted a visa and permitted to remain in Australia, I would be glad to have him hired again at my workplace. Independent of Pratish being a disciplined and hard worker, Pratish is a good and kind-hearted person. Pratish makes people around him happy and motivated.
I am aware that Pratish committed an act of indecency against a woman, and unlawfully entered her place of residence. I am also aware that Pratish was sentenced to imprisonment (suspended on being of good behaviour in the Australian community).
In my respectful opinion, the criminal conduct undertaken by Pratish was entirely out of character. Pratish is a trustworthy member of the Australian community. Pratish strikes me as a sensible and well put together person.
At present, I have kept in contact with Pratish over the telephone and via text messages.
In my dealings with Pratish, he is remorseful for his prior offending in Australia. Pratish accepts his wrongdoing in the past. I genuinely believe that Pratish would not engage in further criminal conduct in Australia. Pratish is focused on being the best version of himself in Australia.
Since I have known Pratish, he had been dedicated to his employment and behaving himself. He was one of my best employees (who stayed back when needed).
Pratish is a man of virtue. For example, Pratish has assisted newcomers in Dubbo with accommodation, food, and helping them to get a job. The assistance provided by Pratish, in this regard, shows that he is a genuine and kind-hearted person.
When Pratish stopped working at my workplace, this was very painful. If Pratish is permitted to get back his visa, he will have employment with me straightaway. He is an asset to any business and a pleasure to know in a personal capacity. If Pratish is removed from Australia, I am afraid this will significantly compromise our ongoing connection. I have no plans to return to Nepal. I see my future in Australia.
Mr Panthee gave evidence at the hearing by telephone and confirmed to the Tribunal that his statement was true and correct to the best of his knowledge.[69]
[69] Transcript of Proceedings, page 26.
The Minister’s representative asked Mr Panthee, by way of cross-examination, what Mr Shrestha had told him of the incident which led to the Offences. Mr Panthee told the Tribunal that Mr Shrestha had told him that he had unlawfully entered the premises of a woman and was sentenced to imprisonment, which sentence was suspended with good behaviour. Mr Panthee said that because Mr Shrestha was ‘so remorseful’ about his offending, Mr Panthee he did not enquire about it in great detail because he ‘was already being a good person, helping everyone around, so I just wanted him to be himself, and then do what good he does’.[70]
[70] ibid., page 27.
Despite Mr Shrestha’s Offences, Mr Panthee maintained that he was ‘a very kind hearted person’, stating that he was ‘very remorseful’, although he ‘can’t figure out what happened’ because he was ‘out of his mind on that day’. Mr Shrestha was said to be a ‘very good and genuine person’, although Mr Panthee confirmed that he had known Mr Shrestha for a ‘short time’, having met him in late June 2020.[71]
[71] ibid.
Mr Rabin Manandhar
Mr Manandhar, a childhood friend of Mr Shrestha and Australian citizen, provided a written statement dated 28 September 2020 in support of Mr Shrestha’s application before the Tribunal, which relevantly stated that Mr Manandhar has a six year old child in Australia and:[72]
[72] Exhibit A4 (subheadings have been removed from the extracted text in these reasons).
I consider Pratish to be like an uncle to my son. Although Pratish and my son have never met in person, they often talk on Facetime (when I am otherwise communicating with Pratish).
As such, my son does have some relationship with Pratish. My son enjoys talking to Pratish on the telephone.
I also know the family of Pratish in Nepal (noting that I have known Pratish since childhood). Equally, Pratish knows my family fairly well also. We share a warm and ongoing relationship. I consider Pratish like my brother. I have known Pratish since 1998 (i.e. 22 years).
When I first came to Australia, Pratish provided me with some financial support. If Pratish needs my financial assistance in Australia, I will do my best to help him in the future. As I said, I consider Pratish like a brother to me. I respect him very much. We previously helped each other out with educational fees.
I understand that if Pratish is unsuccessful in his current appeal proceedings before the Tribunal, he will be removed from Australia to Nepal. In my respectful opinion, I believe Pratish should be permitted to remain in Australia. As I know Pratish, he is a good friend and a genuine person.
I also know that Pratish will be very sad to be removed permanently from Australia. Pratish has built a life for himself in this country, studied hard, and worked even harder. Pratish saw his future in Australia and contributing to this beautiful country. Pratish will be heartbroken and considerably impacted in an emotional sense if removed from Australia.
I am aware that Pratish committed an act of indecency against a woman, and unlawfully entered her place of residence without consent. I understand that Pratish was heavily intoxicated when these offences were committed, after earlier drinking in excess at a social party.
Pratish has informed me that he was sentenced to imprisonment for these offences; however, the sentence was wholly suspended on him being of good behaviour in the Australian community. I also understand that Pratish completed his sentence without incident in the Australian community.
If Pratish is granted a visa to remain in the Australian community, I will support him as best I can with whatever he needs. I understand that Pratish had to quit his job as a result of his current immigration problems. If Pratish wishes to move to Adelaide, I would be happy to accommodate him until he gets back on his feet.
Pratish and I are like family - we talk very often. Both my wife and son know Pratish very well. We keep in contact by telephone, through the Internet, and text messages. Although we currently live in different cities, we try to catch up whenever we can.
I believe that Pratish is remorseful for his offending in Australia. Since I have known Pratish, he has never been intoxicated or under the influence of drugs. Pratish has displayed characteristics of maturity and being sensible in all my dealings with him.
When I heard the news of Pratish’s criminal offending, it was the biggest surprise to me (as it is not like Pratish’s character at all). I understand that Pratish has behaved himself since committing the serious offences and has tried to move forward positively with his life.
Given that Pratish and I derive from the same country and the same cultural background, we are more like brothers than friends. Pratish is a good person. In all the years I have known Pratish, he has been a genuine and good person in the community.
Pratish is hard-working and would be an asset to the Australian community. Pratish derives from a culture that teaches us always to respect our elders and help the young. If Pratish is deported to Nepal, he will face considerable financial and emotional hardship in that country.
Pratish has the pressure of taking care of his elderly parents. Furthermore, any decision that resulted in Pratish being removed would be life-changing and have significant consequences for his life. I hope that Pratish is given another chance at life in Australia.
Pratish made a terrible mistake. However, Pratish has worked hard to put his life back together and move forward positively. It makes little sense that Pratish should be deported from Australia so many years after the offences occurred. I hope some degree of level of compassion and mercy is shown to Pratish.
Mr Manandhar also gave evidence at the hearing by telephone and confirmed adherence to his written statement.[73]
[73] Transcript of Proceedings, page 29.
Under cross-examination, Mr Manandhar was asked what Mr Shrestha had told him about the Offences and he replied that Mr Shrestha was ‘highly intoxicated’ and ‘didn’t know anything about the incident’; he was not a ‘heavy drinker’ and probably had a ‘couple of extra drinks’ that day. Mr Manandhar was further asked about what he was told of the incident and he stated that Mr Shrestha ‘went to someone’s property’ and attempted ‘sexual, like, touching or something like that to a lady of that property’. Mr Manandhar said that Mr Shrestha was ‘not guilty’ of the Offences because they were not ‘on his consciousness’ due to his state of intoxication and inability to recall what had occurred. Despite this, Mr Shrestha was said to be remorseful.[74]
[74] ibid., pages 29-31.
Mr Manandhar confirmed that he was aware that Mr Shrestha had pled guilty for the Offences and had received a conviction. Mr Manandhar stood by his written statement, despite knowing of Mr Shrestha’s Offences, and told the Tribunal Mr Shrestha was ‘not that kind of a person’.[75]
[75] ibid., page 31.
Following the completion of cross-examination, the Tribunal asked Mr Manandhar about the relationship between his six year old son and Mr Shrestha. Mr Manandhar said that he considered Mr Shrestha to be like family and that Mr Manandhar’s son and Mr Shrestha correspond via technological means such as FaceTime and social media in circumstances where the former resides in Adelaide and the latter has, until recently, lived in Dubbo.[76]
[76] ibid., page 32.
Mr Umesh Napit
Mr Napit, a long-time friend of Mr Shrestha and Australian citizen, provided a written statement dated 1 October 2020 in support of Mr Shrestha’s application before the Tribunal, which relevantly stated that they ‘mutually assist each other when needed’ and:[77]
[77] Exhibit A3 (subheadings have been removed from the extracted text in these reasons).
If Pratish were removed from Australia, I would feel very sad and distressed. I consider Pratish to be a close friend. Various of my family members and family friends also know Pratish. At small and big family gatherings, Pratish has regularly been invited to attend as an extended close family friend.
My family respects Pratish. Pratish has a positive attitude, is nice, and is otherwise helpful. Pratish is quite popular with my family, particularly with his encouragement to read books and share knowledge.
If Pratish is removed from Australia, given the significant physical distance between Australia and Nepal, this would likely impact our friendship. I have no plans to move to Nepal. I am married and have a good family here in Australia. I am also in the process of purchasing a property in Australia.
I am generally aware of the criminal charges brought against Pratish. I attended the hearing of Pratish at the District Court of New South Wales in Dubbo. I attended this hearing to provide him with moral support. I recall that the Court fully suspended the term of imprisonment imposed upon Pratish.
If Pratish is permitted to remain in the Australian community, I will support him in all aspects of his life. As outlined earlier in my statement, Pratish has become like a family member to me in Australia. Every time Pratish comes to Sydney, he would usually reside at my place of residence.
I keep in contact with Pratish by telephone, and we speak about two or three times a week. The nature of our conversations is generally about family, friends, daily activities undertaken, and our plans. In that context, I know that Pratish wants to stay in Australia and advance his career in this country.
When Pratish informed me about his criminal charges, I was extremely surprised. I was also shocked to hear the news that he was highly intoxicated when he committed the act of indecency on the victim. In all my dealings with Pratish, he has not abused alcohol.
Having spoken with Pratish about his offending, it seemed to me that Pratish was embarrassed and remorseful for his offending in Australia. I sincerely believe Pratish acted completely out of character on account of being highly intoxicated at the relevant time. Pratish struck me as being truly sorry for his offending. I believe Pratish is remorseful.
Pratish has a very positive attitude. Pratish is a good influence on his friends in Australia. I currently volunteer as a treasurer for a not-for-profit organisation known as Guthi Australia (based in Sydney). Pratish had actively volunteered in some of our community programs organised by Guthi Australia.
Pratish undertook voluntary activities for our charitable organisation before he moved to Dubbo. Pratish has always been a person who gives significant moral support to others when they go through a difficult time in their life. For example, Pratish had provided strong support to friends and community members when they first arrived in Australia to find work and accommodation.
I hope Pratish gets to stay in Australia. In my respectful opinion, Pratish will not commit any further offences in Australia. Pratish has a good heart.
Mr Napit gave evidence at the hearing by telephone and confirmed his statement was true and correct to the best of his knowledge.[78]
[78] Transcript of Proceedings, page 33.
Under cross-examination, Mr Napit told the Tribunal that he was ‘fully aware’ of the charges brought against Mr Shrestha in relation to the Offences, including the specific details, because of Mr Napit’s attendance at the District Court hearing in Dubbo, which varied the sentence to be non-custodial but subject to the 18 month good behaviour bond. Mr Napit said he was ‘totally surprised’ at Mr Shrestha’s Offences and that was partly what motivated him to attend the District Court hearing, together with supporting Mr Shrestha.[79]
[79] ibid., page 34.
Expert Evidence
Dr Susan Pulman, Forensic Psychologist and Clinical Neuropsychologist, gave evidence to the Tribunal by written report and by telephone at the hearing.
Dr Pulman’s forensic psychological assessment report of 15 July 2020 relevantly stated that:[80]
[80] Exhibit R1, G22, pages 108-113.
Mr Shrestha was interviewed by AVL on 8 April 2020. He presented as a Nepalese man of stated age. He appeared well groomed. His speed was of normal rate, tone and volume. His mood was euthymic and affect reactive. There was no evidence of any formal thought disorder. He had good insight into his situation. The recommended treatment plan is designed to address these concerns.
…
Alcohol and Substance Use
Mr Shrestha described himself as a social drinker and reportedly does not drink at home. He drinks beer when attending clubs or parties with his friends and will occasionally drink to the level of intoxication. He denied problematic alcoholic consumption. He stated that he does not smoke and has not experimented with any illicit substances.
Medical History
Mr Shrestha denied any history of serious illness or injury. He does not take any prescribed medication and described himself as being in good physical health.
Mental Health
Mr Shrestha reported having been diagnosed with depression when he moved from Sydney to Dubbo. He reported that he found it difficult to obtain work in Dubbo and had no supportive network available at the time. He said he was experiencing financial stressors and although his parents had assisted him with university fees he had accrued credit card debt and with limitations on the number of hours he was permitted to work, found it difficult to manage. He denied having consulted a psychologist or counsellor to address his symptoms.
Forensic History
Mr Shrestha denied any prior criminal history in Australia or overseas.
Account of Index Offence/s in 2016
Mr Shrestha was asked to provide an account of his version of events leading up to commission of the index offences for which he was sentenced. Mr Shrestha reported that he recalled he was playing cricket and had several missed calls on his phone from a colleague at the factory where he had been working at the time. He said he hadn’t really felt like attending a social gathering however his colleague sent him further text messages encouraging him to attend and telling him his supervisor would be there. He said he thought he should go because his boss was coming and he wanted to appear to be friendly and sociable. He said he purchased a six pack of beer and drove to the party thinking he would have a couple of beers and then go home.
He said he had thought the party was at his colleague’s house but when he arrived it appeared to be a street party as there was a gathering of people in the street including a few of his colleague’s neighbours. He said his supervisor had said he was going to stay overnight at the house as they had consumed too much alcohol to drive home. Mr Shrestha therefore considered it would be OK for him to have a few more drinks and then also stay as a guest at his colleague’s house. He said he can recall that they started to play a few games and the person who lost, had to “skull it” down. He said, “I lost a few times and had to skull the drink”. He said, “next they were downing whisky shots, and I had three or four of them, we were all doing it”. He said, “the next thing I remember my supervisor had passed out, everyone had been looking for him and he passed out in his car”. He said “we were still having a few beers, then the next thing I remember is the guy coming to hit me outside, I don’t know how I got in there, I rang the police, they were hitting me, the police arrived later on. All I remember then is being at the police station and they were saying something like ‘we are detectives and are going to take the interview’. He said he was then charged. He said it was Christmas time, “I was told to get a lawyer. I started looking and found a lawyer in Sydney. They told to me that if I pled guilty, I would get less than three years but if I plead not guilty, I could get up to seven years. I really had no choice”.
Mr Shrestha’s offences were committed while under the influence of alcohol. He reportedly drank to the level of intoxication. He reported that he is not a regular drinker and claims not to have consumed alcohol to the level of intoxication since the offence. He denied any prior problematic alcohol use.
FORENSIC RISK ASSESSMENT
The Violence Risk Assessment Appraisal Guide (VRAG) and the Sex Offender Risk Appraisal (SORA) are 12 and 14 item actuarial tools that assess the risk of further violence or sexual violence among men or women who have already committed a violent or sexually violent offence. It is one of the most empirically supported actuarial methods for the assessment of violent risk in forensic populations. Harris et al. (2002) found that the VRAG and SOAG are accurate predictors of violence recidivism.
On both the VRAG and the SOAG Mr Shrestha risk of further violence or sexual offending scored in the Low risk category.
Mr Shrestha risk was also assessed using a structured professional judgement tool, the Historical Clinical Risk-20 Version 3. On this instrument, Mr Shrestha also scored in the low range on static/historical risk factors related to violence or reoffending. There is no history of violent or antisocial behaviour during childhood, or difficulties in relationships or employment. Mr Shrestha has no history of major mental disorder, personality disorder or traumatic experiences and there is no evidence of violent attitudes or poor response to community supervision such as parole. Although the index offences were committed whilst intoxicated there is no prior history of alcohol or illicit substance dependence or abuse.
Similar to the historical scale, dynamic/clinical predictors of risk fall in the low range. There is no indication of current symptoms of a major mental disorder requiring treatment and he has good insight into fluctuating environmental stressors such as financial constraints operating within the current covid-19 situation. He has good insight into the issues surrounding his consumption of alcohol leading to the commission of the index offences and does not engage in problematic alcohol consumption. His mood is stable, and he does not engage in any violent or criminogenic ideation or intent.
In summary, Mr Shrestha’s scores within the low risk of future offending based on the HCR-20 V3.
Opinion
Mr Shrestha has no prior criminal history and has maintained stable employment. He has a university education and there is no indication of any cognitive deficits which would impact his level of insight and decision making abilities. He has stable accommodation, employment and a supportive network available. There is no history of mental illness, or substance dependence or illicit substance use. He does not associate with antisocial peers and has not committed any further offences since the index offences in 2016.
Risk Management Recommendation
Although Mr Shrestha has a low risk of further offending, he indicated a willingness to engage in drug and alcohol rehabilitation. He is therefore encouraged to meet with a drug and alcohol rehabilitation counsellor to discuss strategies to avoid any future relapse into alcohol consumption.
Mr Shrestha’s sentencing report indicated he was not eligible for the Community Sex Offender program because he did not have permanent residency status. Although the index offence occurred almost five years ago, it is recommended that he contact a counsellor within the Dubbo regional district for an initial consultation regarding his past forensic history. [emphasis in original]
In advance of the hearing, an updated report of Dr Pulman dated 20 October 2020 was provided to the Tribunal which relevantly noted that:[81]
I am unaware of any change in Mr Shrestha’s circumstances and based on information available, there is no evidence of any reoffending or change in his risk factors.
On this basis, I did not undertake a further review of Mr Pratish and the opinion outlined in my report remains unchanged.
[81] Exhibit A8.
By way of examination-in-chief at the hearing, Dr Pulman confirmed that she had prepared reports dated 15 July 2020 and 20 October 2020 in relation to Mr Shrestha, whom she interviewed for approximately 90 minutes in April this year.[82]
[82] Transcript of Proceedings, page 37.
Dr Pulman could not ascribe a percentage figure for her classification of Mr Shrestha as being in the ‘low risk’ category for reoffending, but said that he ‘certainly sits well at the lower end’ and was ‘without doubt within the low risk’ category.[83]
[83] ibid.
Dr Pulman was asked why she had reported that Mr Shrestha had a good insight in relation to alcohol to which she replied that it was based on her over 20 years’ experience conducting similar assessments with convicted sex offenders in the corrections system. Dr Pulman added that Mr Shrestha recognised he had consumed too much alcohol; he was said to be remorseful and ‘should never have done what he did’. This contrasted with the level of insight of other offenders Dr Pulman had assessed where they either do not talk about or recognise their behaviour as an issue. For example, Dr Pulman said that some offenders do not identify the significance of drinking alcohol to their behaviour and seek to change.[84]
[84] ibid., page 38.
Dr Pulman told the Tribunal that she considered Mr Shrestha was ‘ashamed’ and ‘remorseful as to what he’d done’ and that this was a genuine disclosure, which again was based on her experience assessing offenders of sexually based crimes. Dr Pulman’s conclusion was that Mr Shrestha was ‘genuinely remorseful’.[85]
[85] ibid.
Dr Pulman was referred to the Respondent’s Statement of Facts, Issues and Contentions dated 16 October 2020, in which it was stated that ‘there is no evidence beyond the applicant’s own claims to suggest that he has adequately addressed the underlying cause of his offending behaviour’.[86] In this regard, Dr Pulman agreed that a program ‘would be of benefit’ in circumstances where alcohol was a ‘major contributing factor’ to the Offences, including because Mr Shrestha had no other criminal history.[87]
[86] Respondent’s Statement of Facts, Issues and Contentions dated 16 October 2020, page 5.
[87] Transcript of Proceedings, page 38.
In relation to the sexual offending, Dr Pulman told the Tribunal that if Mr Shrestha was to participate in a program this ‘would certainly be beneficial’.[88]
[88] ibid.
Dr Pulman was asked whether Mr Shrestha had addressed all the factors that had contributed to the Offences, to which she stated that she understood he was not drinking to the extent that occurred in advance of the Offences and still regarded him as being a low risk of reoffending.[89]
[89] ibid., pages 38-39.
Dr Pulman was again asked by Mr Shrestha’s Counsel whether she had taken account of his level of insight into an assessment of his likelihood of reoffending. Dr Pulman confirmed that she had and that a majority of offenders do not have the same level of education attained by Mr Shrestha which limits their insight. In this regard, Mr Shrestha’s education was said to assist in him understanding the Offences and the risk factors, such as alcohol consumption.[90]
[90] ibid., page 39.
By way of cross-examination, Dr Pulman was asked about the reference in her first written report to Mr Shrestha describing himself as a ‘social drinker’. Dr Pulman confirmed that Mr Shrestha had told her during their interview in April 2020 that he was a social drinker, but that he was ‘much more aware’ of the risks involved in heavy drinking. Dr Pulman was unable to answer whether Mr Shrestha was currently socially drinking alcohol.[91]
[91] ibid., pages 39-40.
Dr Pulman stated that Mr Shrestha was ‘very embarrassed at what had happened’; after the incident in December 2015 he had ‘stopped drinking’ and had realised that what happened should not have occurred. As a result, Dr Pulman said that Mr Shrestha told her that he ‘doesn’t get drunk’ and was ‘really sorry about what happened’.[92]
[92] ibid., page 40.
In relation to Dr Pulman’s risk management recommendations in her report of July 2020, she told the Tribunal that she was ‘trying to cover all the possible scenarios that could be addressed’. Dr Pulman said that Mr Shrestha’s offending had occurred while he was intoxicated, but there were other contributing factors, such as it being a social situation with work colleagues and he ‘really didn’t want to go’, but felt that he should because he didn’t want to say no and not be part of the team. In this regard, Dr Pulman said the situation was not one where Mr Shrestha was regularly a heavy consumer of alcohol and was ‘not necessarily reflective of an alcohol dependence disorder’. Mr Shrestha was said to realise that the social situation, including the drinking games at the party, contributed to his behaviour. This insight was again said to be ‘different to a number of other offenders’.[93]
[93] ibid., pages 40-41.
Dr Pulman told the Tribunal that she thought it would be ‘ideal’ for Mr Shrestha to discuss strategies to assert himself in social situations, and identifying risks and behaviours. Dr Pulman said it would be ‘beneficial’ for Mr Shrestha to speak with a counsellor, however considered he was probably ‘scared off’ and was unlikely to engage in social situations where he would become intoxicated. Despite this, Dr Pulman said that she would encourage Mr Shrestha to ‘speak to someone’.[94]
[94] ibid., page 41.
CONTENTIONS
It was common ground between the parties that Mr Shrestha does not pass the character test under subsection 501(6)(a) of the Act because of his ‘substantial criminal record’, in circumstances where he was sentenced to a term of imprisonment of 18 months. Accordingly, the parties made submissions on whether the Tribunal should exercise the discretion under subsection 501(1) of the Act to refuse to grant Mr Shrestha the Visa because he does not pass the character test.
Mr Shrestha contended that the Tribunal should set aside the decision under review and, although he does not pass the character test, not exercise the discretion under subsection 501(1) of the Act to refuse Mr Shrestha the Visa. It was submitted by Mr Shrestha that Primary Consideration 1, the protection of the Australian community, weighs moderately against the grant of the Visa, because of the unlikelihood of Mr Shrestha reoffending and him not representing an unacceptable risk of harm to the Australian community. In relation to Primary Consideration 2, the best interests of minor children in Australia, Mr Shrestha submitted that this weighed marginally in favour of granting him the Visa, despite the nature of his relationship with the six year old child of his friend, Mr Manandhar, being non-parental and conducted exclusively through electronic communication. Mr Shrestha submitted that Primary Consideration 3, the expectations of the Australian community, weighed moderately against the grant of the Visa by reference to his lengthy residence in Australia and extensive work history.
Mr Shrestha submitted that the four listed ‘other considerations’ in Part B of Direction 79 were inapplicable to his application before the Tribunal. However, in circumstances where the ‘other considerations’ are non-exhaustive or not limited to the four ‘other considerations’ set out in Part B of Direction 79, Mr Shrestha advanced the following ‘other considerations’ in support of his application:[95]
(a)the positive contribution he has made to the Australian community through a 12 year employment history;[96]
(b)his positive contribution to the Australian community by undertaking volunteer work with Australian businesses and a Nepalese cultural association;[97]
(c)support from members of the Australian community for Mr Shrestha to be given a ‘second chance at life in Australia’;[98]
(d)Mr Shrestha having developed ‘respective ties to Australia and its people’, evidenced by him residing in this country for 14 years and developing professional and social ties to members of the Australian community;[99]
(e)Mr Shrestha will face financial hardship if removed from Australia in circumstances where he has ‘better employment and career prospects’ in Australia compared to Nepal, including because he holds Australian educational qualifications and has established ‘important business relationships with various Australian businesses’;[100]
(f)the emotional distress in being removed from Australia given Mr Shrestha ‘has built a life for himself’ over 14 years and ‘had no plans to return to Nepal’;[101] and
(g)despite Mr Shrestha’s one-off criminal offending, he has ‘continued to reside in the Australian community (without adverse incident) for almost five years’ and proven that he does not pose an unacceptable risk of harm. In this regard, these ‘peculiar circumstances’ place Mr Shrestha in a position outside the normal applicable circumstances in that ‘it is rather odd that the applicant’s continued residence in Australia should be stopped based on a character matter that occurred about five years ago’.[102]
[95] Applicant’s Statement of Facts, Issues and Contentions dated 2 October 2020, pages 15-16.
[96] Exhibit R1, G19, pages 102-105; G20, page 106; G21, page 107; G22, page 110.
[97] Exhibit R1, G14, pages 86-87 and 89; Exhibit A3.
[98] Exhibit R1, G14, pages 86-89.
[99] Exhibit R1, G14, pages 86-89; G17, pages 96-98; G22, pages 108-113.
[100] Exhibit R1, G17, pages 96-98.
[101] ibid.
[102] Applicant’s Statement of Facts, Issues and Contentions dated 2 October 2020, page 16.
Mr Shrestha contended that the abovementioned ‘other considerations’, considered in totality, should be afforded the greatest weight in the particular circumstances of this case because it is outside the circumstances that generally apply.[103] As a result, Mr Shrestha submitted, Primary Consideration 1 and Primary Consideration 3 are outweighed by the other considerations and the Tribunal should not exercise the discretion under subsection 501(1) of the Act to refuse the Visa.
The Minister submitted that the protection of the Australian community (Primary Consideration 1) and the expectations of the Australian community (Primary Consideration 3) weigh heavily in favour of exercising the discretion to refuse to grant Mr Shrestha the Visa. Furthermore, the Minister argued that these two primary considerations are not outweighed by the best interests of minor children in Australia (Primary Consideration 2), which should be given no weight or, if any, marginal weight in favour of not exercising the discretion to refuse the Visa, because the relationship between Mr Shrestha and the six year old child of his friend, Mr Manandhar, is non-parental and they only communicate via technological means, with no evidence this could not continue if Mr Shrestha were in Nepal.
In relation to the ‘other considerations’ advanced by Mr Shrestha, the Minister said these should only be given marginal weight by the Tribunal and they do not outweigh Primary Consideration 1 and Primary Consideration 3 weighing against the grant of the Visa to Mr Shrestha. Accordingly, the Minister contended that the Tribunal should affirm the decision to exercise the discretion in subsection 501(1) of the Act to refuse to grant Mr Shrestha the Visa.
CONSIDERATION
Does Mr Shrestha pass the character test under the Act?
In conclusion, the Tribunal finds that, on balance, Primary Consideration 3, the expectations of the Australian community, weighs moderately in favour of exercising the discretion in subsection 501(1) of the Act to refuse to grant Mr Shrestha the Visa.
Conclusion: Primary considerations
In concluding its consideration of the primary considerations under Part B of Direction 79, the Tribunal notes that it has found that Primary Consideration 1, protection of the Australian community, and Primary Consideration 3, the expectations of the Australian community, respectively weigh strongly and moderately in favour of exercising the discretion under subsection 501(1) of the Act to refuse to grant Mr Shrestha the Visa. The Tribunal has found that Primary Consideration 2, the best interests of minor children in Australia, weighs marginally in favour of Mr Shrestha and against exercising the discretion to refuse to grant him the Visa.
Other considerations
Paragraph 12(1) of Direction 79 provides that ‘other considerations’ must be taken into account where relevant and include (but are not limited to) international non-refoulement obligations; impact on family members; impact on victims; and impact on Australian business interests. The Tribunal turns to address these listed ‘other considerations’ and the additional considerations advanced by Mr Shrestha not contained in Direction 79 and notes that these considerations are ‘other’ considerations, as opposed to ‘secondary’ considerations. As Justice Colvin said in Suleiman v Minister for Immigration and Border Protection (Suleiman):[152]
…Direction 65 [now Direction 79] 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 [now Direction 79] 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 [now Direction 79] 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 [now Direction 79] 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.[153]
[152] [2018] FCA 594.
[153] Ibid at [23].
Other consideration 1 – International non-refoulement obligations
Mr Shrestha did not raise any international non-refoulment obligations and submitted that this consideration was inapplicable in determining his application before the Tribunal. Accordingly, the Tribunal gives this consideration no weight.
Other consideration 2 – Impact on family members
Mr Shrestha contended that this consideration was inapplicable to his application in circumstances where he does not have any immediate family members who reside in Australia. The Tribunal therefore gives this consideration no weight.
Other consideration 3 – Impact on victims
Paragraph 12.3 of the Direction requires that:
Impact of a decision to grant a visa on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where that information is available and can be disclosed to the non-citizen being considered for visa refusal.
While the Tribunal had the benefit of considering the Victim Impact Statement provided and read to the Local Court in 2016, there was no direct evidence before the Tribunal about the impact on the victim of Mr Shrestha’s offending, or her family members, of a decision to grant him the Visa. In the absence of any evidence in relation to this consideration, the Tribunal finds that this factor weighs neither for nor against Mr Shrestha.
Other consideration 4 – Impact on Australian business interests
Mr Shrestha stated that this consideration was inapplicable to the Tribunal’s determination of his application. This consideration is also given no weight by the Tribunal.
Other considerations not listed in Part B of Direction 79
As previously set out in these reasons, Mr Shrestha advanced a number of ‘other considerations’ in support of his application that are not expressly listed in Part B of Direction 79.[154] Paragraph 12(1) of Direction 79 does not limit the ‘other considerations’ that must be taken into account, where relevant, to the four contained in that document. The Tribunal addresses each of these additional ‘other considerations’ in turn.
[154] Applicant’s Statement of Facts, Issues and Contentions dated 2 October 2020, pages 15-16.
Employment
Mr Shrestha submitted that the evidence demonstrates that he has made a positive contribution to the Australian community through his very strong 12 year employment history in this country.[155] The Minister contended that there was no evidence of such contributions and that any weight to be given to this consideration in favour of Mr Shrestha is significantly lessened by his commission of the Offences and the associated law enforcement or other resources expended as a result of that offending.[156] Counsel for Mr Shrestha highlighted that his client pled guilty to the Offences, thus receiving a discount when sentenced, but also avoiding the expense of a criminal trial to the state, in addition to his client successfully appealing in the District Court the sentence imposed by the Local Court.
[155] Exhibit A1; Exhibit R1, G19, pages 102-105; G20, page 106; G21, page 107; G22, page 110.
[156] Respondent’s Statement of Facts, Issues and Contentions dated 16 October 2020, page 9.
Mr Shrestha arrived in Australia in October 2006 and submitted that he had been employed in Australia since January 2007 at various businesses in Sydney and Dubbo.[157] The Tribunal accepts this employment history. There was evidence of Mr Shrestha’s employment at his three most recent workplaces, being The Establishment Bar, Hog’s Breath Café and BP, over a period of the last three years.[158] All of these businesses are based in Dubbo.
[157] Exhibit A1; see also G11, pages 57-74.
[158] Exhibit R1, G19, pages 102-105; G20, page 106; G21, page 107; Exhibit A6.
Mr Shrestha was described as, among other things, a ‘valued employee’, a ‘reliable team member’ with a ‘commitment and passion for his career’, ‘loyal, punctual and always professional’.[159]
[159] Exhibit R1, G19, page 103; G20, page 106; G21, page 107.
As a result of Mr Shrestha’s visa status he is not currently working. However, Mr Shrestha has been offered a full-time position as a Café Manager at Jimmy Barnett Espresso Bar in Dubbo, subject to the resolution of his visa status. The owner and director of this business has said that he is looking forward to Mr Shrestha running the business in the near term.[160] The owner of The Establishment Bar also stated that it ‘has a position held within our company upon his return’.[161]
[160] Exhibit A7.
[161] Exhibit A6.
Having regard to the fact that Mr Shrestha has largely remained employed in Australia since he arrived 14 years ago, including occasionally holding concurrent jobs, the Tribunal accepts that this other consideration weighs moderately against exercise of the discretion to refuse to grant him the Visa, including because of his contribution to the success of his employers’ businesses and the payment of income tax for the benefit of the community.
Volunteering
Mr Shrestha contended that he had made a positive contribution to the Australian community by undertaking volunteer work with Australian businesses and a Nepalese cultural association.[162] The Minister submitted that no weight should be given to this consideration because the evidence indicated that the benefit was to Mr Shrestha’s professional advancement rather than the community and there was no evidence of his contributions through volunteering.[163]
[162] Exhibit R1, G14, pages 86-87 and 89; Exhibit A3.
[163] Respondent’s Statement of Facts, Issues and Contentions dated 16 October 2020, page 9.
The Tribunal had documentary evidence in the form of a character reference from 2018 written by Mr Gaurav Deshpande a Senior Accountant at AMY Accountants Pty Ltd in Sydney.[164] Mr Deshpande referred to Mr Shrestha working as an intern at the former’s previous place of employment and also as an ‘unpaid intern in three other organisations’ to gain accounting experience. There was no direct evidence regarding Mr Shrestha’s unpaid work at these three other businesses.
[164] Exhibit R1, G14, pages 86-87.
In relation to charitable work, the Tribunal heard evidence from both Mr Shrestha and his friend, Mr Napit, regarding Mr Shrestha assisting the Nepalese cultural association, Guthi Australia.[165] Mr Shrestha said this work included setting up for events or whatever was required. There was conflicting evidence as to whether Mr Shrestha continued to volunteer with Guthi Australia when he moved to Dubbo more than 5 years ago.[166] Additionally, Mr Shrestha was said to donate his clothes to charity and assist new arrivals to settle in Australia.
[165] Exhibit A2; Exhibit A3.
[166] ibid.
Based on the evidence before the Tribunal, it accepts that this other consideration weighs against exercising the discretion to refuse to grant Mr Shrestha the Visa, however the weight ascribed to this consideration is marginal in circumstances where it was unclear to what extent Mr Shrestha’s volunteer work with Guthi Australia continued beyond him leaving Sydney in 2015 and given his unpaid accounting work was, to a significant degree, in furtherance of his career, although noting that those businesses, and therefore the economy, did receive the benefit of his labour and skill.
Support from the community
Mr Shrestha submitted that he had support from members of the Australian community for him to be given a ‘second chance at life in Australia’.[167] The Minister accepted that this consideration weighs marginally against exercising the discretion to refuse to grant Mr Shrestha the Visa.[168]
[167] Applicant’s Statement of Facts, Issues and Contentions dated 2 October 2020, page 15; Exhibit R1, G14, pages 86-89.
[168] Respondent’s Statement of Facts, Issues and Contentions dated 16 October 2020, pages 9-10.
The Tribunal finds that this other consideration weighs marginally in favour of Mr Shrestha and therefore against exercise of the discretion to refuse to grant him the Visa, because of the evidence of his support from members of the Australian community including former and prospective employers, friends and family in this country.[169]
[169] Exhibits A3-A7; Exhibit R1, G14, pages 86-89.
Ties to Australia
Mr Shrestha contended that he has developed ‘respective ties to Australia and its people’,[170] evidenced by him residing in this country for 14 years and developing professional and social ties to members of the Australian community.[171] The Minister accepted that Mr Shrestha would have developed some ties to Australia, including because of the evidence of his support from the community discussed immediately above, and that this consideration weighs marginally against exercising the discretion to refuse to grant Mr Shrestha the Visa.[172]
[170] Applicant’s Statement of Facts, Issues and Contentions dated 2 October 2020, page 15.
[171] Exhibit R1, G14, pages 86-89; G17, pages 96-98; G22, pages 108-113.
[172] Respondent’s Statement of Facts, Issues and Contentions dated 16 October 2020, pages 9-10.
Mr Shrestha undoubtedly has ties to Australia as a result of his 14 years in this country. Mr Shrestha has not left Australia since his arrival in 2006 and has been employed for the overwhelming majority of this time. Mr Shrestha has also developed a friendship network in Australia; three friends gave evidence at the hearing in support of Mr Shrestha and him being given a second chance. Mr Shrestha is considered ‘family’ and ‘like an uncle’ to the son of one friend, despite never having met this child in person. Mr Shrestha also told the Tribunal that he played cricket on weekends. Mr Shrestha is currently single, he does not have a spouse or any children in Australia and he has no immediate family in Australia, although he does have a cousin living in Sydney with whom he is close. Dr Pulman reported that Mr Shrestha described having a good friendship network in Sydney, but ‘less so in Dubbo’ and that he had not ‘had any serious long-term relationships’, including because his hours of work ‘make it difficult to socialise and establish relationships’.[173] In this regard, the Tribunal notes that Mr Shrestha stated that he wanted to ‘get married and settled down’.[174] On balance, the Tribunal finds that this other consideration weighs marginally against the exercise of the discretion to refuse to grant Mr Shrestha the Visa.
[173] Exhibit R1, G22, page 110.
[174] Exhibit A1.
Financial hardship
It was submitted that Mr Shrestha will face financial hardship if he is removed from Australia in circumstances where he has ‘better employment and career prospects’ in this country compared to Nepal, including because he holds Australian educational qualifications and has established ‘important business relationships with various Australian businesses’.[175] As a result, Mr Shrestha’s future employment prospects were said to be better in Australia than Nepal.[176]
[175] Applicant’s Statement of Facts, Issues and Contentions dated 2 October 2020, pages 15-16.
[176] Exhibit R1, G17, pages 96-98; Exhibit A2.
Mr Shrestha confirmed to the Tribunal that both of his parents are retired, including his father who worked in the banking industry, despite this year telling Dr Pulman that his father was still working in that sector.[177] The Tribunal accepts Mr Shrestha’s evidence at the hearing on this issue. Additionally, Mr Shrestha said that his parents borrowed money to have him educated in Australia and he has debts, although he tries to send money back ‘every now and then as much as I can’.[178] The Tribunal has no reason to doubt this evidence and accepts it. Mr Shrestha claimed that if he were to return to Nepal it would have ‘devastating consequences’ for his family, including because he would not be able to earn an Australian income to support them. This was previously described by Mr Shrestha as being faced with ‘severe financial depression’.[179]
[177] Transcript of Proceedings, page 24.
[178] Exhibit R1, G17, page 97.
[179] ibid.
The Minister contended that this impediment weighs marginally against exercising the discretion to refuse to grant Mr Shrestha the Visa, noting that he would not have any social or cultural barriers to overcome if he returned to Nepal in circumstances where he left that country as an adult aged 21, Mr Shrestha’s parents live in Nepal and, although retired, could be expected to provide him with some financial support, if required, and Mr Shrestha could use his experience in Australia to gain employment in Nepal.[180]
[180] Respondent’s Statement of Facts, Issues and Contentions dated 16 October 2020, page 10.
Mr Shrestha arrived in Australia on a student visa and attained multiple educational qualifications in this country, including a Bachelor of Professional Accounting and undertook unpaid work experience in this field. In this way, Mr Shrestha had the makings of a career in accounting in Australia. This has been impacted by his conviction for the Offences. While the Tribunal accepts that Mr Shrestha’s employment prospects are currently better in Australia because of his recent experience and offers of future and continued employment in this country, there was no evidence before the Tribunal regarding the likelihood of Mr Shrestha’s Australian educational qualifications or work experience not being recognised in Nepal, especially his accounting qualification, although Mr Shrestha said accounting was ‘different’ in Nepal. In addition, the Tribunal is satisfied that Mr Shrestha would not face any social or cultural barriers in Nepal in circumstances where he grew up in that country and left as an adult. Additionally, Mr Shrestha has immediate family in Nepal who could support him financially, including an older brother, although the Tribunal accepts the contention that the brother’s income is insufficient to support their parents during retirement. The Tribunal is satisfied that Mr Shrestha could use the education he has gained in Australia to seek to secure employment in the accounting or hospitality sectors in Nepal, especially given his broad experience over many years in Australia. Finally, the Tribunal accepts that the earning of an Australian income would likely be more advantageous to Mr Shrestha than a Nepalese income. On balance, the Tribunal finds that this other consideration weighs marginally against the exercise of the discretion to refuse to grant Mr Shrestha the Visa.
Emotional distress
Mr Shrestha said he will face emotional distress if removed from Australia given he ‘has built a life for himself’ over his 14 years in this country and ‘had no plans to return to Nepal’.[181] As referred to in relation to the preceding consideration, Mr Shrestha described facing ‘severe financial depression’, but having ‘no other health conditions’.[182] Mr Shrestha stated that being returned to Nepal would ‘certainly impact on my depression both mentally and financially’.[183] In that statement, Mr Shrestha also said that he ‘would like to go visit my parents in Nepal’, on the presumption that he was granted the Visa.[184] Mr Shrestha also referred to the likely criticism he and his family will face from neighbours, relatives and colleagues in Nepal if he returned without Australian permanent residency. Mr Shrestha also said that following the refusal of his Visa this year he has found it ‘very hard’ to sleep and focus and was ‘very stressed’.[185]
[181] Applicant’s Statement of Facts, Issues and Contentions dated 2 October 2020, page 16; Exhibit R1, G17, pages 97-98.
[182] Exhibit R1, G17, page 97.
[183] ibid.
[184] ibid., page 98.
[185] Exhibit A1.
The Minister contended that this impediment weighs marginally against exercising the discretion to refuse to grant Mr Shrestha the Visa, noting again that he would not have any social or cultural barriers to overcome if he returned to Nepal in circumstances where he left that country as an adult, his parents live in Nepal and could provide him with emotional support, and there was no evidence that Mr Shrestha could not access medical services in Nepal and available to Nepalese citizens.[186]
[186] Respondent’s Statement of Facts, Issues and Contentions dated 16 October 2020, page 10.
It was evident to the Tribunal that Mr Shrestha will be emotionally distressed at having to return to Nepal; he has lived in Australia for 14 years, held stable employment for a significant amount of that time, has a friendship network and wants to advance his career in this country, earn an Australian income and financially assist his retired parents in Nepal from this country. The Tribunal also accepts that Mr Shrestha would have to financially support his parents were he to return to Nepal, including because his brother’s income is not sufficient to do so. Counsel for Mr Shrestha also submitted that if the Visa is not granted to him, there were remote prospects of Mr Shrestha being able to return to Australia.
The Tribunal finds that this other consideration weighs in Mr Shrestha’s favour. However, the weight attributed by the Tribunal is marginal because Mr Shrestha has immediate family in Nepal who can emotionally support him upon his return to that country and there was no evidence that he could not access the medical services available to other Nepalese citizens. As a result, the Tribunal finds that this other consideration weighs marginally against the exercise of the discretion to refuse to grant Mr Shrestha the Visa.
For completeness, despite Mr Shrestha’s references in his statement provided this year to the Minister’s Department to ‘severe financial depression’ and being made to leave Australia impacting ‘on my depression both mentally and financially’, and aside from the advancement of the other consideration of emotional distress addressed immediately above in these reasons, Mr Shrestha did not claim before the Tribunal to have a mental health condition and there were no medical records before the Tribunal to that effect. Indeed, Mr Shrestha’s statement to the Minister’s Department said that he had ‘no other mental health condition’ apart from facing ‘severe financial depression’.[187] For clarity, leaving aside the issue of prospective emotional distress, Mr Shrestha did not advance an argument in support of his application on the basis of any mental health condition he was, or is currently, experiencing. The Tribunal notes that Dr Pulman reported that Mr Shrestha had informed her that he had been diagnosed with depression when he moved to Dubbo, but he denied in that assessment having consulted a psychologist or counsellor to address his symptoms.[188] In this regard, Dr Pulman’s opinion expressed later in her report was that Mr Shrestha had ‘no history of mental illness’.[189] Again, there were no medical records before the Tribunal. Accordingly, for the avoidance of doubt, the Tribunal is not satisfied that Mr Shrestha has a mental health condition and no weight is given to this particular issue in his favour, noting the above separate finding and weighting in relation to emotional distress.
[187] ibid., page 97.
[188] Exhibit G22, page 111.
[189] ibid., page 112.
Continued residence in the community
Mr Shrestha contended that, despite his one-off criminal offending, he has ‘continued to reside in the Australian community (without adverse incident) for almost five years’ and proven that he does not pose an unacceptable risk of harm. In this regard, Mr Shrestha claimed, these ‘peculiar circumstances’ place him in a position outside the normal applicable circumstances in that ‘it is rather odd that the applicant’s continued residence in Australia should be stopped based on a character matter that occurred about five years ago’.[190]
[190] Applicant’s Statement of Facts, Issues and Contentions dated 2 October 2020, page 16.
The Minister contended that Mr Shrestha’s submission about his continued residence in the community since the Offences without any further offending was relevant to the Tribunal’s assessment of future risk of reoffending (under Primary Consideration 1) and therefore should be given no weight as an ‘other consideration’.[191] The Tribunal has considered and addressed the risk to the Australian community under Primary Consideration 1 and found that Mr Shrestha poses a low, but continuing, risk of harm that is unacceptable.
[191] Respondent’s Statement of Facts, Issues and Contentions dated 16 October 2020, page 10.
As previously stated in these reasons, it is noteworthy that Mr Shrestha has remained in the Australian community since the commission of the Offences in December 2015, a period of almost 5 years. Following the suspension of his term of imprisonment in 2016, Mr Shrestha completed a good behaviour bond in February 2018. Towards the end of this 18 month good behaviour bond, Mr Shrestha applied for the Visa. After the refusal of the Visa in August this year, Mr Shrestha became an unlawful non-citizen and he continues to remain in the Australian community; he has not been taken into immigration detention.
While the Tribunal has made a separate finding under Primary Consideration 1 regarding the risk to the Australian community, the Tribunal accepts that this other consideration advanced on behalf of Mr Shrestha is distinct from that consideration and, while again noting his one-offending, finds that it weighs moderately against exercise of the discretion to refuse to grant him the Visa on the basis of his almost 5 year continued residence in the Australian community following the Offences, including in circumstances where he was subject to, and complied with, a good behaviour bond for 18 of those months and has not had any other adverse interaction with law enforcement after the commission of the Offences.
Conclusion: Other considerations
Mr Shrestha contended that, considered in total, the ‘other considerations’ he advanced should be given the most significant weight in the circumstances of this case. Mr Shrestha referred to Justice Colvin’s statement in Suleiman,[192] set out in full above, regarding the requirement for ‘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’. To this end, Mr Shrestha submitted that the other considerations, in their totality, should be afforded the greatest weight in the particular circumstances of this case because it is outside the circumstances that generally apply.[193] Mr Shrestha contended that, balancing all relevant considerations, the primary considerations weighing against him (Primary Consideration 1 and Primary Consideration 3) are outweighed by the countervailing ‘other considerations’.
[192] At [23].
[193] Applicant’s Statement of Facts, Issues and Contentions dated 2 October 2020, page 17.
The Tribunal does not accept these submissions. The Tribunal has found that two of the ‘other considerations’ advanced by Mr Shrestha weigh moderately in his favour (being his employment and continued residence in the Australian community) and that five of his ‘other considerations’ weigh marginally in his favour (comprising his volunteering, support from the community, ties to Australia, financial hardship and emotional distress). That is, all ‘other considerations’ advanced by Mr Shrestha weigh against the exercise of the discretion to refuse to grant him the Visa. However, the Tribunal is not satisfied that these ‘other considerations’, either solely or in their totality, and together with Primary Consideration 2, outweigh the remaining primary considerations, being Primary Consideration 1, the protection of the Australian community, and Primary Consideration 3, the expectations of the Australian community which, respectively, weigh strongly and moderately in favour of exercising the discretion to refuse to grant Mr Shrestha the Visa. That is, the Tribunal has found that Primary Considerations 1 and 3 outweigh Primary Consideration 2 and the other considerations advanced by Mr Shrestha.
It is worth restating Mr Shrestha’s history in Australia following his sentencing in 2016 for the Offences. Mr Shrestha was granted bail, unopposed, pending the outcome of his appeal to the NSW District Court, which led to the suspended 18 month term of imprisonment, but the serving of a good behaviour bond of equivalent length. Before and shortly after Mr Shrestha’s application for the Visa in 2017, which would have granted him permanent residency, he was subject to the 18 month good behaviour bond for the Offences. In August this year, Mr Shrestha’s application for the Visa was refused by the Minister’s Department. Following the Department’s refusal, Mr Shrestha applied to the Tribunal for review of that decision and a hearing was held in October this year. That is, Mr Shrestha has been an unlawful non-citizen in Australia for less than 3 months; Mr Shrestha’s application for the Visa was only determined by the Minister’s Department this year and he had remained in the community on a bridging visa up until that decision. Upon Mr Shrestha’s bridging visa being cancelled in August this year, he became an unlawful non-citizen of Australia. While the Tribunal accepts that it may not be the usual course of events for an unlawful non-citizen, such as Mr Shrestha, to remain in the community during the completion of the associated legal or administrative processes surrounding the Visa, this situation has only existed from August this year. The Tribunal is not satisfied that these particular circumstances warrant the ascription of greatest weight to any or all of the ‘other considerations’ because they are outside the circumstances that generally apply. The Tribunal is not satisfied that the circumstances of this case are remarkable, despite it accepting as noteworthy that Mr Shrestha remained in the community for 5 years since the Offences, including because he has only been an unlawful non-citizen from August this year. The Tribunal also notes that the fact that Mr Shrestha remained in the community after the Offences and has not reoffended reduced the Tribunal’s assessment of his risk of reoffending under Primary Consideration 1.
CONCLUSION
Mr Shrestha does not pass the character test as defined in subsection 501(6) of the Act because he has a substantial criminal record. Accordingly, pursuant to subsection 501(1) of the Act, the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. As a result of his failure to pass the character test, Mr Shrestha was refused the Visa by a delegate of the Minister in August this year. Mr Shrestha applied to the Tribunal for review of that decision. It was common ground between the parties, and the Tribunal has found, that Mr Shrestha does not pass the character test. The remaining issue for determination by the Tribunal was whether it should exercise the discretion under subsection 501(1) to refuse to grant Mr Shrestha the Visa. This required a consideration of Part B of Direction 79.
It follows from the preceding paragraphs that Primary Consideration 1 and Primary Consideration 3 in Part B of Direction 79 respectively weigh strongly and moderately in favour of exercising the discretion under subsection 501(1) of the Act to refuse to grant Mr Shrestha the Visa. The Tribunal has found that Primary Consideration 2, regarding the best interests of minor children in Australia, weighs marginally in Mr Shrestha’s favour.
Pursuant to sub-paragraph 8(4) of Direction 79, primary considerations should generally be given greater weight than other considerations. The four listed ‘other considerations’ in Direction 79 are inapplicable and make no contribution to Mr Shrestha’s case. Additionally, the Tribunal has found that the combined weighting of the non-listed ‘other considerations’ advanced by Mr Shrestha, together with Primary Consideration 2, do not outweigh the two primary considerations weighing in favour of exercising the discretion to refuse to grant Mr Shrestha the Visa.
Ultimately, Primary Considerations 1 and 3 weigh in favour of exercising the discretion under subsection 501(1) of the Act to refuse to grant Mr Shrestha the Visa. The weight afforded to Primary Consideration 2 and the ‘other considerations’ fails to tip the balance in Mr Shrestha’s favour. To this end, the Preamble to Direction 79 relevantly states:
A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women…should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify…refusing the visa.
Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
The Tribunal considers that these principles apply to this case. The Offences committed by Mr Shrestha were serious, with his offending including a crime of a sexual nature against a woman in her own home. Having regard to the above assessment of all of the primary and other considerations in Direction 79, and the non-listed other considerations submitted by Mr Shrestha, the Tribunal finds that the correct or preferable decision is to affirm the decision under review.
The Tribunal empathises with Mr Shrestha’s position; it accepts his remorse for the Offences as genuine and acknowledges his strong desire to remain in Australia to continue the life he has established in this country. However, on balance, the Tribunal has found that the weight afforded to the protection of the Australian community and the expectations of that community in favour of exercising the discretion to refuse the Visa outweighs the other primary consideration and the other considerations that weigh in favour of Mr Shrestha.
DECISION
The Tribunal affirms the decision made by a delegate of the Minister on 17 August 2020 to refuse to grant Mr Shrestha a Skilled (Residence) (Class VB) visa pursuant to subsection 501(1) of the Act.
I certify that the preceding 179 (one hundred and seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.
........................................................................
Associate
Dated: 10 November 2020
Date(s) of hearing: 26 October 2020 Representative for Mr Shrestha: Ms K Chetty, My Visa Immigration Law Advisory Counsel for Mr Shrestha: Dr J Donnelly Solicitor for the Minister: Ms S Prasad, Minter Ellison
- AGLC
- Shrestha and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4511
- Case
- [2020] AATA 4511
- Decision Date
CaseChat Overview and Summary
The Tribunal was required to consider the provisions of Direction No 79, which outlines the primary considerations for such decisions, including the protection of the Australian community, the best interests of minor children, and the expectations of the Australian community. It also had to consider other relevant factors, such as the impact on family members and victims, and the applicant's ties to the Australian community. The Tribunal noted that primary considerations are generally given greater weight than other considerations.
In its reasoning, the Tribunal found that Mr Shrestha did not pass the character test due to his substantial criminal record, which arose from offences of entering a building with intent to commit an indictable offence and indecent assault. While acknowledging Mr Shrestha's remorse, his employment history, and his contributions to the community, the Tribunal found that these factors did not outweigh the primary considerations, particularly the protection of the Australian community. The Tribunal concluded that the discretion to refuse the visa should be exercised.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Part B of Direction 79 identifies the considerations relevant to deciding whether to refuse a non-citizen’s visa. It comprises three ‘primary considerations’ and four specified, but non-exhaustive, ‘other considerations’ which must be taken into account in relation visa applicants. Paragraph 11(1) in Direction 79 sets out the three ‘primary considerations’ as follows:(a)Protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);(b)The best interests of minor children in Australia (Primary Consideration 2); and(c)Expectations of the Australian community (Primary Consideration 3). Paragraph 12(1) in Direction 79 lists the following four ‘other considerations’ that must be taken into account where relevant:(a)International non-refoulement obligations;(b)Impact on family members;(c)Impact on victims; and(d)Impact on Australian business interests. Paragraph 8 of Direction 79 states that:(1) Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved. (2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.(4) Primary considerations should generally be given greater weight than the other considerations.(5) One or more primary considerations may outweigh other primary considerations.ISSUES The issues for the Tribunal in this proceeding are: (a)whether Mr Shrestha passes the character test under subsection 501(6) of the Act; and(b)if not, whether the Tribunal should exercise the discretion in subsection 501(1) of the Act to refuse to grant Mr Shrestha the Visa. EVIDENCEMr Shrestha Mr Shrestha filed a written statement dated 27 September 2020 in support of his application to the Tribunal, which relevantly said:[41] [41] Exhibit A1. FamilyI am currently single. I want to get married and settled down. However, given my current immigration situation, I will have to wait until my migration status is settled. My parents also have a desire for me to get married. I have a cousin named Arbin Shrestha that resides in Australia. In particular, my cousin resides in Auburn, New South Wales. Arbin works as a Data Analyst at Job Ready Solutions. Arbin is about six months older than me. Arbin and I grew up together since childhood. In that context, we enjoy a continuing and close relationship. Arbin stayed with me for several weeks when he first arrived in Australia in about 2009. We would meet at least once a month when I was residing in Sydney. However, after I moved to Dubbo, we stayed in touch via telephone. That said, I still consider myself close to Arbin. He is family. CriminalityI wholeheartedly acknowledge that I committed the offences of entering building/land with intent to commit an indictable offence and commit an assault with an act of indecency (the offences). At the time, I was about 30 years of age while living alone in Dubbo. At that time, I was working full-time at a local abattoir and as a labourer at Fletcher International Experts [sic]. I worked Monday to Friday. Every weekend, I would play cricket in Dubbo with other members of the Australian community. I enjoyed playing cricket, keeping active, and connecting with other residents of Australia. The background of the offences is as follows. On a Saturday afternoon, I was busy playing cricket. I missed a few phone calls from Earl Andrews (a workmate at the local abattoir). I subsequently telephoned Earl after the game and was invited to his house to socialise and have a few drinks. Originally, I did not want to go to Earl’s place. However, Earl mentioned other work colleagues (including our supervisor) would be coming over to his house. Accordingly, I changed my mind and thought it would be a good opportunity to socialise with my work colleagues. I drove to Earl’s house with a six-pack of beer (which would be shared between work colleagues). Upon reaching Earl’s house, I saw many people and was informed that there was a street party being held in conjunction with the neighbours. After consuming a couple of beers, Earl offered me to stay at his place that evening. Subsequently, after agreeing to stay at Earl’s place, we started playing a drinking game (where the loser had to skull a drink). I lost the game a few times. I consumed beers and about five to seven whiskey shots. I became very heavily intoxicated. Subsequently, I committed the offences that are under close consideration by this Tribunal. Remorse Independent of the offences, I have no other criminal history in Australia. I am very remorseful and ashamed about the way I behaved concerning the offences. I deeply regret the hurt that I caused the victim, her family, and my work colleagues in Australia. I will never again commit any further criminal offences in Australia. I am deeply regretful for my conduct concerning the offences. Criminal Penalty Concerning the offences, my 18-month sentence of imprisonment was fully suspended on entering a ‘section 12’ good behaviour bond between 25 August 2016 and 24 February 2018. I had to visit Dubbo Community Corrections every fortnight, which subsequently changed to once a month. On or about 23 October 2017, I got early termination on my good behaviour and did not have to report to Dubbo Community Corrections any longer. During this time, I continued working as a labourer/cleaner at an abattoir until September 2017. Subsequently, I also commenced working at Hogs [sic] Breath Cafe as a bar attendant and got promoted to a restaurant supervisor. Effect of Temporary VisaAt the relevant time, I was on a temporary visa and not eligible to take courses with Community Drug and Alcohol Services. When I was under supervision, I learned about the harmful effects of alcohol and ways to stay away from alcohol abuse. I discussed the same with officers associated with community corrections. I understand the negative impact that alcohol has on society and the destructive impact that alcohol abuse has on the Australian community. My own experience of being sentenced to a term of imprisonment, having my visa application refused, and my future in Australia placed in grave jeopardy have all taught me that alcohol abuse leads to adverse consequences. I have read many self-development books and watched motivational videos to assist in my rehabilitation and advancement in life. Consequences of DeportationIn circumstances where I am unsuccessful in my appeal proceedings before the Tribunal, I will face financial hardship in Nepal. Both my parents are retired. My parents borrowed money to send me to Australia for my education. I have financial debts myself. If I have to return to Nepal, this will have devastating consequences for my family. I will not be able to earn an Australian income to support my family in Nepal. If I return to Nepal in the circumstances in which I face, my family will likely face great criticism from other members of the community in Nepal. Nepalese society is generally conservative. The neighbours of my parents and other associates will likely criticise my family and me for being deported from Australia. Although I readily appreciate that I committed very serious offending in Australia, I have paid my penalty and sought to contribute to the Australian community. Current HealthAfter my visa got refused, it was very hard for me to sleep and focus properly. I had been busy working and suddenly had to resign from my jobs due to my current visa situation. I have had no option but otherwise to stay in my room (which is very hard). I am very stressed at the moment as a result of my immigration troubles. I hope that my life can go back to normal. Education in AustraliaI have a strong educational history in Australia: • Holmes Institute Sydney. Bachelor of Professional Accounting (2012). • Global College Sydney. Diploma of Accounting (2007). • Tactical Training Group Sydney. Certificate III in Hospitality (2009). The relevant educational courses I undertook in Australia cost a substantial sum of money. Employment I also have a very strong employment history in Australia: • Jimmy Barnett Espresso Bar, Dubbo. Cafe Manager (i.e. job offered subject to a lawful visa being granted). • The Establishment Bar, Dubbo. Bartender (1 January 2019 – present). Currently on personal leave due to the current visa situation. • Hogs Breath Café, Dubbo. Bartender (August 2019 to March 2020). • BP Dubbo. Head Barista (June 2008 to August 2020). • Hogs Breath Café, Dubbo. Restaurant supervisor (September 2017 to January 2019). • Fletcher International Export, Dubbo. Labourer and cleaner (March 2015 to September 2017). • Searock Bar and Grill, Sydney. Bar staff (December 2014 to March 2015). • Bondi Pizza, Sydney. Bar staff (June 2014 to May 2015). • Zenobia Restaurant Sydney. Bar Staff (April 2014 to May 2014). • The World Bar, Sydney. Floor supervisor and bar staff (March 2008 to March 2014). • External Cleaning Services, Sydney. Cleaner (January 2007 to February 2008). Miscellaneous MattersI have considered Australia my home for the last 14 years. My extremely poor decision of getting very badly intoxicated and committing the offences has caused me great sadness. I take full responsibility for my offending and my actions on the evening in question. I have always helped small businesses and provided my knowledge, skills, and services to advance Australian businesses. For example, I resigned as a restaurant supervisor and went to help the owners opening a new bar in Dubbo. Recently, I resigned from BP and decided to help a new cafe opening in Dubbo. All the people that I have worked with in the past have been very happy with my employment services. They will also be happy to hire me again in the future. I am reliable, hard-working, dedicated to my employment (when working), and assisting Australian businesses. I have always donated my clothes to the Salvation Army. After my visa got refused, and before moving to Sydney, I donated some of my beloved clothes to charity as well. I have always participated and volunteered in Australian Nepalese community-based activities in both Sydney and Dubbo. If my visa is granted, I plan to return to the Dubbo community and contribute actively. I will avoid alcohol (as I have done for a long time now). This whole nightmare experience has taught me various lessons. I am truly sorry. Please give me a second chance at life in Australia. Examination-in-Chief