Singh and Minister for Home Affairs (Migration)

[2019] AATA 4598

Singh and Minister for Home Affairs (Migration) [2019] AATA 4598 (7 November 2019)

Division:GENERAL DIVISION

File Numbers:         2018/6636

Re:Galjinder Singh

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A. Nikolic AM CSC

Date:7 November 2019

Place:Melbourne

The Tribunal affirms the decision under review.

......................[sgd].............................................

Senior Member A. Nikolic AM CSC

CATCHWORDS

MIGRATION – visa cancellation – citizen of India – Subclass 885 (Skilled – Independent) visa – indecent act with child under 16 – use carriage service to procure person under 16 years old – failure to pass character test – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 79 applied – decision affirmed

LEGISLATION

Administrative Appeals Act 1975 (Cth)

Crimes Act 1958 (Vic)

Criminal Code Act 1995 (Cth)

Migration Act 1958 (Cth)

Migration Reform (Transitional Provisions) Regulations 1994 (Cth)

Migration Regulations 1994 (Cth)

Sentencing Act 1991 (Vic)

Sex Offenders Registration Act 2004 (Vic)

CASES

Afu v Minister for Home Affairs [2018] FCA 1311

Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113

BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104

Dharma and Minister for Home Affairs (Migration) [2018] AATA 2757

Dharma v Minister for Home Affairs [2019] FCA 431

Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333

FYBR v Minister for Home Affairs [2019] FCAFC 185

Jagroop v Minister for Immigration and Border Protection [2016] 241 FCR 461

LCNB and Minister for Immigration and Border Protection [2015] AATA 463

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

Singh v Minister for Home Affairs (Migration) [2019] AATA 73

Singh v Minister for Home Affairs [2019] FCA 905

Umi v Minister for Home Affairs [2019] AATA 2316

ZNBG and Minister for Home Affairs [2019] AATA 1872

SECONDARY MATERIALS

Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth)

REASONS FOR DECISION

Senior Member A. Nikolic AM CSC

7 November 2019

1. The Applicant, Mr Galjinder Singh, seeks review of a decision by a delegate of the Minister for Home Affairs, made under s 501(2) of the Migration Act 1958 (Cth) (“the Act”), to cancel his Subclass 885 (Skilled – Independent) visa (“the visa”).

2. The hearing was held in Melbourne on 28 October 2019. The Applicant was represented by Mr Aleksov of counsel instructed by Kerdo Legal. The Minister was represented by Mr Mosley of counsel instructed by the Australian Government Solicitor.

3. For the reasons that follow the Tribunal affirms the decision under review.

   FACTUAL BACKGROUND

4. The factual background to this application is as follows:

   (a)Mr Singh is a 31-year old citizen of India who arrived in Australia on 30 December 2006[1] on a Subclass 573 student visa. This visa category only allowed tertiary study and closed for new applications on 1 July 2016;[2]

   [1] Exhibit R1, 39.

   [2] Visa holders were limited to tertiary education courses and had to apply for a different visa if their study intentions changed: ‘If you want to change to a course that is in a different education sector to your current course for example changing…to a Diploma course, you will need to apply for a new Student Visa…because your visa subclass will not be appropriate for your new course...’

   (b)Although initially intending to study at university,[3] Mr Singh instead undertook a vocational course in horticulture. He fulfilled the requirements for a Diploma in Horticulture during 2007 and 2008,[4] and concurrently held enrolment in a Bachelor of Business (“BBus”) degree with the same training provider.[5] He did not undertake any units in the BBus and cancelled his enrolment in January 2009 after completing his horticulture course;[6]

   [3] Exhibit R1, 984 [30]; [43].

   [4] Ibid, 321-329; 331.

   [5] Ibid, 938-939.

   [6] Ibid, 940.

   (c)Mr Singh was granted a Graduate Temporary (Subclass 485) visa in 2010,[7] allowing him to live, work and study in Australia. He applied for the visa that is the subject of this application in 2011.[8] It was granted in November 2013[9] after he completed the required industry experience component and was assessed as having the required skills for the occupation of ‘Nurseryperson.’[10] Mr Singh also worked as a security guard from 2013;

   [7] Ibid, 63, [5].

   [8] Ibid, 206-219.

   [9] Ibid, 346-349.

   [10] Ibid, 214.

   (d)Mr Singh has departed Australia five times between March 2009 and August 2018, returning to India on each occasion for periods of between two weeks and two months;[11]

   [11] Ibid, 39.

   (e)On or about 26 December 2013 Mr Singh began communicating on the internet with a person he initially thought was a 26 year old Korean female.[12] By 15 February 2014 he learned that the person he was communicating with was instead an 11 year old child.[13] Mr Singh told friends about this and was counselled to stop communicating with the child, which he ignored;[14]

   [12] Ibid, 44 [4]; 488 [23].

   [13] Ibid; 44 [4]; 849-850; 989 [6].

   [14] Ibid, 44 [4]; 850.

   (f)Mr Singh arranged to meet the child on 21 February 2014, collected her in his car, and drove to a nearby park where he initiated physical contact.[15] They were interrupted by a telephone call from the child’s mother, who had been alerted to the meeting by another parent;[16]

   [15] Ibid, 44 [5]; 494 [56]; 993 [20].

   [16] Ibid, 44 [5].

   (g)Mr Singh subsequently told friends he kissed the child and knew this was wrong because of her age.[17] Despite warnings that his actions were illegal and he should cease further contact,[18] Mr Singh continued communicating with the child, including in a highly sexualised manner;

   [17] Ibid, 45 [6].

   [18] Ibid, 1002 [7].

   (h)Police executed a search warrant at Mr Singh’s home on 12 March 2014,[19] following which he was arrested and his mobile telephone seized.[20] Mr Singh was subsequently granted bail;[21]

   [19] Ibid, 45 [7]-[8].

   [20] Ibid, 842 [14].

   [21] Ibid, 46 [13].

   (i)On 24 November 2014 Mr Singh was convicted of sexual offences against a child and sentenced to 12 months imprisonment. By virtue of his convictions he became a registrable sex offender under the Sex Offender Registration Act 2004 (Vic) (SORA), which imposed reporting obligations on him for a period of 15 years;[22]

   [22] Ibid, 50 [29]; 436. The SORA regulates those convicted of sexual offences by imposing annual reporting requirements to police in respect of personal details and other requirements.

   (j)On 24 December 2014, Victoria Police Licencing and Regulation Division cancelled Mr Singh’s private security licence because of his convictions, rendering him unable to continue working as a security guard. Mr Singh unsuccessfully sought revocation of that decision, but on 23 July 2015 his appeal to the Victorian Civil and Administrative Tribunal was successful and his security licence was reinstated.[23] Although Mr Singh worked for a period at a bakery and as a factory hand, he returned to security work from August 2015;

   [23] Ibid, 932.

   (k)On 28 October 2015 Mr Singh applied for Australian citizenship, disclosing his convictions.[24] On 7 June 2017 he received a Request for Further Information, inviting him to comment on or respond to information that he may not be of good character. Mr Singh’s citizenship application was subsequently refused;

   (l)During a visit to India in October 2017 Mr Singh married his current wife who is a citizen of India.[25] He lodged an offshore partner visa application for her[26] and she joined him in Australia the following month on a Subclass 600 Visitor visa, which was subsequently renewed;[27] 

   (m)On 13 March 2018 Mr Singh received a ‘Notice of intention to consider cancellation’ of his visa, on the basis that he had a ‘substantial criminal record’ within the meaning of s 501(7) of the Act, and consequently did not pass the ‘character test’ by virtue of s 501(6)(a) of the Act;[28]

   (n)After considering Mr Singh’s responses,[29] a delegate of the Minister decided on 31 October 2018 to cancel Mr Singh’s visa under s 501(2) of the Act.[30] Mr Singh was notified of this decision on 7 November 2018;[31]

   (o)Mr Singh presented himself voluntarily to the Department of Home Affairs and was taken into immigration detention on 12 November 2018,[32] where he has since remained;

   (p)By application dated 13 November 2018, Mr Singh applied to this Tribunal for a review of the delegate’s decision;[33]

   (q)On 30 January 2019 the Tribunal, differently constituted, affirmed the cancellation decision;[34]

   (r)In February 2019 Mr Singh’s wife gave birth in Australia to the couple’s first child;[35]

   (s)Mr Singh sought judicial review of the Tribunal’s January 2019 decision in the Federal Court of Australia. On 6 June 2019 the Federal Court set aside the Tribunal’s decision,[36] giving rise to these proceedings; and

   (t)On 9 July 2019 Mr Singh withdrew the partner visa application he had lodged for his wife following their marriage in India. She has since applied for a different category of visa and currently holds a bridging visa.

   [24] Ibid, 64 [7]; 350-372.

   [25] Ibid, 136-140.

   [26] Ibid, 95 [26].

   [27] Ibid, 926-928.

   [28] Ibid, 40-42.

   [29] Ibid, 63-172.

   [30] Ibid, 12-24.

   [31] Ibid, 9-11.

   [32] Ibid, 950 [45]; 956 [29].

   [33] Ibid, 1-7.

   [34] Singh v Minister for Home Affairs (Migration) [2019] AATA 73.

   [35] Exhibit A1, 1 [7].

   [36] Singh v Minister for Home Affairs [2019] FCA 905.

   LEGISLATIVE FRAMEWORK

5. Taken together, s 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) and s 500(1)(b) of the Act are the sources of the Tribunal’s jurisdiction to review decisions of a delegate of the Minister under s 501 of the Act.

6. Section 501 of the Act was amended in 2014 by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) (“the Amendment Act”) to introduce s 501(3A) and 501(6)(e), amongst other amendments. The Explanatory Memorandum for the Amendment Act states:

   New paragraph 501(6)(e) of the Migration Act provides that a person does not pass the “character test” if a court in Australia or a foreign country has convicted the person of one or more sexually based offences involving a child or found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction.

   For the purposes of new paragraph 501(6)(e) of the Migration Act, the term “sexually based offences involving a child” would include, but would not be limited to, offences such as child sexual abuse, indecent dealings with a child, possession or distribution of child pornography, internet grooming, and other non-contact carriage services offences. This amendment is intended to apply irrespective of the level of penalty or orders made in relation to the offence. 

   The purpose of this amendment is to ensure that a person who has been found by a court to have engaged in sexually based offences involving a child objectively does not pass the character test. Currently, such offences may be considered under subsection 501(6) of the Migration Act when deciding whether a person fails the character test, but this amendment removes the subjectivity from this assessment in cases where the person does not fail the substantial criminal record test in subsection 501(7) because a sentence of imprisonment of at least 12 months has not been imposed.[37]

   (emphasis added)

   [37] Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth), 10 [48] -11 [50].

7. Section 501(2) of the Act is one of a number of discrete powers conferred under section 501. It provides that:

   …

   (2) The Minister may cancel a visa that has been granted to a person if:

   (a)the Minister reasonably suspects that the person does not pass the character test; and

   (b)the person does not satisfy the Minister that the person passes the character test.

8. The character test is defined at section 501(6) - 501(12) of the Act and refers to a range of character matters that the Minister or their delegate may have regard for in deciding whether to refuse or cancel a visa (or revoke a mandatory cancellation of a visa). Section 501(6)(a); (e) of the Act provides:

   (6)      For the purposes of this section, a person does not pass the          character test if:

   (a)the person has a substantial criminal record (as defined by subsection (7)); or

   …

   (e)a court in Australia or a foreign country has:

   (i) convicted the person of one or more sexually based         offences involving a child; or

   …

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

10. If the Tribunal finds that Mr Singh fails the character test, it must then determine whether the discretion under section 501(2) of the Act to cancel Mr Singh’s visa should be exercised.[38] Guidance in exercising the discretion is found in Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”).

    [38] The Federal Court has reinforced the importance of adhering to the two-step process mandated by s 501 of the Act. See for example: Brown v Minister for Immigration and Citizenship (2009) 112 ALD 67 at 69 (Edmonds J); Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113 at 119 (Nicholas J, Moore and Rares JJ agreeing); Aksu v Minister for Immigration and Multicultural Affairs (2001) 65 ALD 667 at 674 (Dowsett J), quoted with approval in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 at 523 (Kiefel and Bennett JJ).

    Direction No. 79

11. The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act, provided the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) mandates that a body having functions or powers under the Act, such as the Tribunal, must comply with the Direction.[39]

    [39] BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104, at [9] per Collier, Flick and Perry JJ. See also: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591, per Katz J.

12. The purpose of the Direction is to guide decision-makers in performing functions or exercising powers under ss 501 and 501CA of the Act. Clause 6.1 of the Direction sets out a number of objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.’ Clause 6.1(2) states:

    …

    (2) … A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test. 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 or cancel the visa given the specific circumstances of the case.

13. By way of general guidance, cl 6.2 of the Direction provides that:

    (1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

    (2) …

    (3) The principles provide a framework within which decision-makers should approach their task of deciding whether to…cancel a non-citizen’s visa under section 501…The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B…

14. The principles referred to under the General Guidance are reproduced below and constitute a framework within which decision-makers apply relevant considerations:

    6.3      Principles

    (1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

    (3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

    (5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    (6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

    (7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

15. Clause 7(1)(a) of the Direction provides that in cases relating to the cancellation of a visa, decision-makers must take into account the considerations in Part A of the Direction to determine whether a non-citizen forfeits the privilege of continuing to hold a visa. If an applicant fails the character test, the following primary considerations at cl 9(1) of the Direction must be applied to the specific circumstances of the case, in order to determine whether the discretion under section 501(2) of the Act should be exercised:

    a.    Protection of the Australian community from criminal or other serious     conduct;

    b.    The best interests of minor children in Australia; and

    c.    Expectations of the Australian community.

16. Clause 10(1) of the Direction requires that other considerations to be taken into account include but are not limited to:

    a.    International non-refoulement obligations;

    b.    Strength, nature and duration of ties;

    c.    Impact on Australian business interests;

    d.    Impact on victims; and

    e.    Extent of impediments if removed.

1. Clause 8(1) of the Direction explains that the reason why there are differing considerations under Parts A, B and C of the Direction, is because 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 visa applicants should have no expectation that a visa application will be approved.

2. Clause 8(2) of the Direction states that in applying the primary and other considerations, information and evidence from independent and authoritative sources should be given appropriate weight.

3. Clause 8(3) of the Direction states that ‘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. Clause 8(4) states that ‘Primary considerations should generally be given greater weight than the other considerations.’

5. Clause 8(5) states that ‘One or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461 at [57] and [78], in relation to previous ministerial directions:

   [57] … the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501…

   …

   [78] … Ultimately…each decision-maker must return to the probative material and evidence in an individual case: it is not the content of the Direction which determines the outcome of the exercise of the s 501 discretion, but rather its application by a particular decision-maker to the evidence and material in an individual case.

   DOES MR SINGH PASS THE CHARACTER TEST?

6. On 24 November 2014 Mr Singh was sentenced to a 12 month term of imprisonment after being convicted of sexual offences involving a child. Because of the combined effects of ss 501(6)(a), 501(6)(e)(i), and 501(7)(c) of the Act, the Tribunal finds Mr Singh does not pass the character test.

   ISSUE TO BE RESOLVED

7. The issue to be determined is whether the discretion under s 501(2) of the Act to cancel Mr Singh’s visa should be exercised.

   EVIDENCE BEFORE THE TRIBUNAL

   Documents

8. “G-Documents” numbering 1289 pages were taken into evidence,[40] as was a Statutory Declaration from Mr Singh dated 22 October 2019,[41] and an unsigned and undated statement from Mr Singh’s sister.[42] Other documents were lodged by Mr Singh’s legal representatives prior to the hearing, many of which were not referred to during the hearing and which Mr Aleksov chose not to tender when invited to do so. Mr Aleksov submitted that it was for the Tribunal to consider what regard, if any, should be had for these documents. The following documents were taken into evidence as Tribunal exhibits:

   [40] Exhibit R1.

   [41] Exhibit A1.

   [42] Exhibit A2.

   (a)An unsigned and undated Statutory Declaration from Mr Singh’s wife, lodged with the Tribunal on 7 October 2019.[43] Mr Singh’s wife was not called to give evidence;

   [43] Exhibit T1.

   (b)A letter from a general practitioner dated 15 January 2019 referring to a dust mite allergy suffered by Mr Singh’s sister, and how a carpet at her workplace was aggravating the allergy.[44] The author of the letter was not called to give evidence;

   [44] Exhibit T2.

   (c)A referral from a general practitioner dated 12 July 2019 for Mr Singh’s wife.[45] The author was not called to give evidence at the hearing;

   [45] Exhibit T3.

   (d)A further referral from a general practitioner dated 24 August 2019 for Mr Singh’s wife.[46] The author was not called as a witness;

   (e)A letter from a psychologist dated 10 September 2019 to ‘whom it may concern’ regarding consultations with Mr Singh’s wife. [47] The psychologist was not called as a witness. The letter states that Mr Singh’s wife attended an initial appointment on 26 July 2019 and ‘five counselling sessions at the time of writing.’[48] The psychologist states that Mr Singh’s wife ‘presented with quite a significant profile of depressive symptoms in the context of parenting her 6month old baby…with very few available supports, whilst dealing with the uncertainty of her husband’s detention and Visa status;’

   (f)An undated letter from a nurse addressed to ‘whom it may concern,’ requesting leniency in Mr Singh’s appeal.[49] The nurse was not called as a witness. The letter refers to three visits with Mr Singh’s wife and child on unspecified dates to address issues she was experiencing as an ‘isolated first-time mother whose husband is currently in detention with an expired visa.’ Reference is also made to Mr Singh’s wife suffering depression as a result of her husband’s detention and that she is on a ‘bridging visa with no income and an uncertain future;’

   (g)An email to Mr Singh from a real estate agent dated 25 September 2019, to the effect that the house he was renting, and in which his wife, sister, and children currently live, was being put up for sale.[50] The real estate agent was not called as a witness;

   (h)An email to Mr Singh from a real estate agent dated 26 August 2019 to the effect that rent was overdue. Mr Singh responded that he had paid the outstanding amount and would process further rental payments on time in future.[51] The real estate agent was not called as a witness;

   (i)A birth Certificate for Mr Singh’s biological child dated 27 May 2019;[52]

   (j)An Order Completion Report from the Victorian Department of Justice dated 14 August 2019, to the effect that Mr Singh had discharged his obligations under a Community Correction Order (“CCO”) between 24 November 2014 and 23 May 2016;[53]

   (k)A letter from Corrections Victoria dated 6 September 2019 to the effect that Mr Singh had participated in the Better Lives Program between 13 April 2015 and 28 September 2015;[54]

   (l)Certificates relating to Mr Singh’s participation in multiple free online courses during August and September 2019;[55] and

   (m)A letter from Mr Singh’s former work supervisor in the security industry dated 24 September 2019.[56]

   [46] Exhibit T4.

   [47] Exhibit T5.

   [48] Exhibit T5.

   [49] Exhibit T6.

   [50] Exhibit T7.

   [51] Exhibit T8.

   [52] Exhibit T9.

   [53] Exhibit T10.

   [54] Exhibit T11.

   [55] Exhibit T12.

   [56] Exhibit T13.

   Witnesses

9. Mr Singh advised the Tribunal prior to the hearing that he intended to call up to eight witnesses. His lawyer subsequently advised that Mr Singh, his wife and sister would appear as witnesses, however only Mr Singh and his sister were called. Mr Singh’s wife did not appear as a witness, nor did she attend the hearing as observer.

   Criminal history

10. Mr Singh’s National Police Certificate[57] discloses two convictions in the Melbourne County Court on 24 November 2014:

    (a)‘Use carriage service to procure person under 16 yo by person 18yo+.’ Mr Singh was sentenced to 12 months imprisonment for sexual activity contrary to s 474.27(1) of the Criminal Code Act 1995 (Cth), but was immediately released on entering into a recognisance release order in the sum of $1000 to be of good behaviour for two years;[58] and

    (b)‘Indecent act with child under 16.’ Mr Singh was convicted of wilfully committing an indecent act with a child under the age of 16, contrary to s 47(1) of the Crimes Act 1958 (Vic). He was ordered to serve a CCO for 18 months, undertake 150 hours of unpaid community work over that period under the supervision of a CCO Officer, and undergo programs or courses aimed at addressing factors relevant to his offending, such as a Sex Offender’s Program.[59]

    [57] Exhibit R1, 38.

    [58] Ibid, 435.

    [59] Ibid, 435-436.

11. An Indian Police Certificate issued on 24 June 2013 discloses there was ‘nothing adverse’ against Mr Singh prior to that date, which ‘would have rendered him…ineligible for grant of travel facilities including visa…in Australia.’[60]

    [60] Ibid, 150.

    Sentencing Remarks

12. The Tribunal has considered the sentencing remarks from the County Court of Victoria dated 24 October 2014 (“sentencing remarks”)[61] on which the Tribunal places considerable weight.

    [61] Ibid, 43-51.

    Medical Evidence

13. The Tribunal has considered the medical reports in evidence, including those prepared by forensic psychologist Ms Pamela Matthews. Ms Matthews was not called to give evidence at the hearing and her perspectives could not be tested under cross-examination. Ms Matthews’ most recent report is dated 3 January 2019[62] and has been considered in conjunction with her previous reports and oral evidence at the January 2019 hearing.[63]

    [62] Ibid, 53-62; 98-107; 409-414; 429-434; 845-874; 890-903. 

    [63] Ibid, 1037-1061.

14. Ms Matthews first examined Mr Singh on 27 May 2014 and has undertaken counseling with him on several occasions since.[64] Her reports traverse Mr Singh’s background, psychosocial history, mental state, and risk of reoffending. Ms Matthews’ assessment about risk is derived from a combination of research-based actuarial variables and her clinical judgement.

    [64] Ibid, 98.

15. In her report dated 23 July 2014, which was commissioned by Mr Singh’s then lawyers ahead of his trial,[65] Ms Matthews recorded the outcomes of an examination with Mr Singh on 27 May 2014 and five counseling sessions between 3 June 2014 and 15 July 2014. Her report states in part:

    [65] Ibid, 848-853.

    ‘…

    Mr Singh has always presented as…on time and cooperative in treatment…He presents as somewhat socially inept, naïve and immature for his age…

    …

    There is no evidence of Chronicity…

    …there are no other known matters, this would suggest no evidence for Diversity of victim type.

    There is no evidence of Escalating Sexual Violence.

    There is evidence of Psychological Coercion in that the Police Summary suggests continued sexualized chat…

    There was initially some evidence of Minimisation of his Behaviour which has now been addressed in treatment.

    Mr Singh does not display attitudes that Support or Condone Sexual Violence or his behaviour. He presents as genuinely embarrassed and ashamed.

    Mr Singh appears to have had insight into the thoughts and emotions impacting upon his behaviour at the time of his knowledgeable offending and has been insightful and frank in treatment in regards to his current emotional state. The criterion for Problems with Self Awareness is not met.

    …

    Mr Singh does not evidence Sexual Deviance; the current behaviour before the Court, despite the age of the victim, would not meet the DSM – five diagnostic criteria for Paedophilia as there is no evidence of a persistent pattern of behaviour for six months or more. Further it was not Mr Singh’s intent to seek out a child on the internet but rather he accidentally found a child on the internet.

    …

    Mr Singh does evidence problems in establishing and maintaining sexually intimate relationships, in that he has never had one. He would meet the criterion for Problems in the Intimate Relationship.

    Mr Singh reports a small circle of friends and close supportive relationships with his sister and brother-in-law. He has however struggled to establish social networks in Australia outside this close small circle. Mr Singh partially meets the criterion for Problems with Non Intimate Relationships.

    Mr Singh seems to have been in continuous employment or study since leaving school. He does not present with Problems in Employment.

    …

    Mr Singh has been a committed participant in treatment with the writer in regard to the matters before the court. He does not meet the criterion for Problems with Treatment.

    Mr Singh appears to have been compliant with his terms of Bail. He would not meet the criterion for Problems with Supervision.

    Mr Singh’s risk of future offending in a similar manner is estimated to be very low.
    
    

    Diagnosis and Opinion:

    Mr Singh presents as somewhat socially inept, naive and immature for his age…. It is also consistent with his cultural and religious history, he and his family are of the Sikh religion which discourages dating and forbids premarital relationships.

    …

    From his perspective by the time he found out the person he was speaking to online was a child of 11 years he was struggling to accept the deception, “I don’t know if she is telling the truth,” and let go of his romantic notions about the child including the notion that the child returned his love and interest. He acknowledges he ignored warnings and convinced himself his continued contact was okay, “nothing is wrong… she is the same person…share every moment of life with me.” In hindsight he knows it was his responsibility as the adult to stop the relationship straightaway, “I am sorry I typed to her… I was the adult person.”

    In the writer’s view the current matters do not represent a deviant or pedophiliac interest in children but rather social isolation and social emotional ineptitude and a lack of worldliness related to a sheltered upbringing in regard to courtship behaviour. The writer is of the view that Mr Singh has learned from his current experience and from the treatment which he has fully and very positively engaged in. His risk of reoffending in a similar manner is assessed is very low. The writer is also of the view that Mr Singh does not require further sex offender treatment but he is welcome to return for counselling at any point should he feel the need for further support particularly in regard to continuing to build his social network and interpersonal/dating skills. The writer is of the opinion that Mr Singh is not in any way an ongoing risk to the community and is of the further view there is no need to place restrictions on Mr Singh’s normal activities.

16. In a further report dated 21 October 2014 prior to Mr Singh’s trial,[66] Ms Matthews referred to three further counseling sessions she undertook with Mr Singh between August and October 2014, reporting that he maintained a ‘cooperative and enthusiastic’ disposition.

    [66] Ibid, 854-855.

17. In a report dated 24 June 2015,[67] prepared in the context of Mr Singh seeking to regain his security licence, Ms Matthews reiterated a number of issues in previous reports, and characterised Mr Singh’s continued contact with the child after realising her age, as the product of ‘poor judgement.’ Ms Matthews provided the same report to the Department of Immigration on 26 August 2015.[68]

    [67] Ibid, 856-857.

    [68] Ibid, 858-859.

18. In a report dated 3 July 2017 to the Department of Immigration[69] Ms Matthews referred to two further counseling sessions with Mr Singh in July 2015 and July 2017. She reinforced her earlier opinion and noted Mr Singh’s completion of the Department of Justice’s  Better Lives Program, which is ‘a treatment program for low level sex offenders run by the Department,’ as part of his CCO. Ms Matthews reiterated her view that Mr Singh constituted a ‘minimal risk of repeating his behaviour as convicted.’ She summarised the contextually-different circumstances in Mr Singh’s life at that time as:

    (a)The beneficial effect of a relationship he developed during 2014-2015, reflecting the interpersonal and social gains he had made through counseling;

    (b)Mr Singh’s planned marriage to a former school friend he had reconnected with while travelling in India;

    (c)Strong emotional and practical support Mr Singh was receiving from his sister and brother-in-law, with whom he was living at the time;

    (d)The return of Mr Singh’s security licence in October 2015, enabling him to work in the security industry;

    (e)Mr Singh’s compliance with every aspect of his CCO, including follow-on counseling; and

    (f)The significant deterrent effect of Mr Singh’s judicial proceeding.  

    [69] Ibid, 860-861.

19. In her report dated 3 April 2018,[70] prepared in the context of the visa cancellation process, Ms Matthews stated:

    ‘…

    Hence the risk of Mr Singh committing similar sexual offences against members of the Australian public is low: 3% at the five-year level, 6% at the 10 year level, and 7% at the 15 year level…

    …

    It is the writer’s opinion although there is no absolute guarantee that Mr Singh will not reoffend, the likelihood of his doing so is very low…’

    [70] Ibid, 862-871.

20. In her most recent report dated 3 January 2019,[71] Ms Matthews revisited a number of issues from her earlier reports:

    ‘Mr Singh does not meet the diagnostic criteria for Paedophilia or other Paraphiliac Disorder and has been compliant with his Community Corrections Order, finishing the Order, and has actively engaged in sex offender treatment with Corrections and the writer.

    … The most significant predictors of recidivism for sexual offences are sexual deviance and antisocial orientation, neither of which Mr Singh presents with.

    Hence the risk levels reported in the literature of Mr Singh committing similar sexual offences against members of the Australian public is low: 3% at the 5-year level… Mr Singh’s risk of reoffending subsequent to treatment and re-examination of the risk criterion in the writer’s view is very low, negligible, insignificant and unlikely.

    …

    The writer further notes these matters occurred during December 2013 to March 2014 and Mr Singh has not reoffended to date. He has maintained until detained stable employment, has strong community support systems, and has recently married, these being very good indicators of internal stability and our risk reducing factors.

    …

    … The writer is of the view that this behaviour raised by the delegate is of no further cause for concern and does not raise Mr Singh’s risk level beyond, very low, negligible, insignificant and unlikely.’

    [71] Ibid 890-903.

21. The Tribunal notes that in the previous hearing of Mr Singh’s application, Ms Matthews agreed that the actuarial tool she used to assess Mr Singh had a risk factor titled ‘low,’ but not a risk factor titled ‘very low’ or the others descriptors she had used.[72]

    [72] Ibid, 1059 [39]-[40].

22. The Tribunal has considered a report by consultant psychiatrist Dr Kevin Ong dated 21 October 2014, which was commissioned at the sentencing judge’s request during Mr Singh’s trial.[73] Dr Ong was not called to give evidence at the hearing and his perspectives could not be tested under cross-examination. Dr Ong’s report traversed Mr Singh’s personal history and circumstances at that time, before concluding:

    [73] Ibid, 429-434.

    ‘Mental State Examination

    …

    … There are some themes of anxiety in regards to his legal proceedings, possible outcomes, as well as the impact may have on his employment as well as immigration prospects. Mr Singh described the offending as “the biggest mistake of my life”. He expressed appropriate remorse and victim empathy. He was not hopeless or helpless and denied current thoughts of self harm or harm to others….

    …

    Mr Singh’s insight was good. He attributed his offending to a previous lack of more appropriate social opportunities. He expressed willingness to continue treatment with Psychologist, Pamela Matthews.

    …

    Apart from Internet “relationships”, Mr Singh acknowledged that he had not previously had any relationships of note.

    …

    … They subsequently organised to meet… And, upon meeting, Mr Singh gave her a “hug”…. He stated that the two went to several parks, and that Mr Singh subsequently kissed [redacted] which he described as the “the biggest mistake of my life”. At the time of kissing the girl, Mr Singh acknowledged that he suspected she may have been younger than 17 years of age, stating “I really liked her, I fell in love with the profile”. Upon reflection, he acknowledged that it was “definitely wrong” to chat with and have physical contact with an 11-year-old.

    …

    Subsequently, Mr Singh stated that he sought counsel from other internet friends who made him aware of the illegality of his actions. He claimed that he then tried to reduce contact with [child’s name redacted] but was eventually reported to police by the girl’s mother.

    Mr Singh adamantly denied any deviant sexual thoughts, in particular paedophilia. He acknowledged at the time of his offending that he was “confused about wrong and right….He stated that he and…never traded any sexually explicit photos or videos…He did acknowledge some “sexual chat”, but only when he thought [child’s name redacted] was 24 years of age.

    Opinion and Recommendations

    …

    3. Mr Singh gives no history indicative of significant personality disturbance or major mental illness. In particular, I could find no evidence of personality disorder, depression or psychosis. He currently would not benefit from psychiatric treatments such as medications.

    4. I could find no convincing evidence of deviant sexual arousal, such as pedophilia, that would explain Mr Singh’s offending. Rather it would appear that Mr Singh was an emotionally immature man with limited experience in relationships, and this was exacerbated by elements of culture and a small social network. It would appear that Mr Singh conflated the fantasy of the profile that he had been chatting to and the reality of the person behind that profile, in reality an 11-year-old girl. It would appear that Mr Singh, with treatment from Ms Matthews, has made some improvement in regards to more appropriate social outlets. He demonstrates appropriate victim empathy, acknowledging the detrimental impact of his actions both on the victim and her family. It appears that he has gained some more appropriate networks and has explored the possibility of age-appropriate relationships through these networks.

    5. The threat of legal sanction, with its attendant issues for Mr Singh in regards to his immigration as well is employment status, is a clear deterrent for Mr Singh engaging in future similar behaviour.

    6. Whether Mr Singh receives a custodial or non-custodial disposition, it is my opinion that he would benefit from ongoing work with Ms Matthews in regards to relationships and social skills, and he would also benefit from being supported to continue employment that would keep him gainfully occupied.

    Mr Singh’s Evidence

1. The Tribunal has considered Mr Singh’s written submissions and evidence at the previous hearing.[74] His oral evidence at the present hearing can be summarised as follows:

   [74] Exhibit R1, 955-1037.

   (a)Mr Singh adopted his Statutory Declaration dated 22 October 2019;

   (b)Mr Singh said that after having a lot of time to think in detention, he had concluded that he was in ‘denial’ and ‘covering up’ his offending. The Tribunal inferred from Mr Singh’s submissions that he may be characterising some of his previous evidence as untruthful. The Tribunal alerted Mr Singh to s 62A of the Administrative Appeals Tribunal Act 1975 (Cth) relating to False or Misleading Evidence, which was read to him and which Mr Singh confirmed he understood. Mr Aleksov declined an offer of adjournment to confer with his client. Mr Singh stated:

   (i)His previous claim about how he discovered the person he was messaging was a fake identity was untrue. Mr Singh explained he had not discovered the deception by seeing a poster of a ‘Korean girl’ at the airport that was the same as the online profile picture.[75] He stated ‘there was no poster.’ When asked why his evidence had changed, Mr Singh submitted he was ‘really stressed’ at the previous hearing and ‘didn’t mean’ to make that claim during his consultation with Ms Matthews;

   [75] Ibid, 1215 [36]; 863.

   (ii)Contrary to his previous evidence about not knowing the girl was 11 until meeting her on 21 February 2014, Mr Singh conceded he ‘definitely’ knew she was 11 from 15 February 2014, approximately six days prior to the meeting. Mr Singh said that on meeting the girl she was wearing a school jumper and ‘was looking minor;’

   (iii)Contrary to his previous evidence that it was the child who pressed him to arrange the meeting,[76] Mr Singh agreed it was he who did so, stating inter alia: ‘Yes I was the one who arranged the meeting…I couldn’t control it…it was the first time I was forming any relationship with a female…It was very unfortunate she was 11 years old….It was the first time I had that feeling – it was real life instead of chat and I wanted to be a part of it;’

   [76] Ibid, 495 [60].

   (iv)Mr Singh agreed that despite having six days to reflect on the wisdom of meeting with a child, he nevertheless chose to do so. He also knew that having physical contact with the child and sending her sexualised messages was unlawful and he had tried to cover up his conduct by telling the child to delete their messages and not tell others;

   (v)Contrary to his evidence at the previous hearing that the child hugged and kissed him,[77] Mr Singh conceded it was he who initiated physical contact;

   [77] Ibid, 974 [10]; [35].

   (vi)When asked about his previous evidence that the kiss with the child was a brief ‘formal’ kiss and not a ‘proper’ kiss,[78] Mr Singh equivocated. He was initially unwilling to make the same distinction he made at the January 2019 hearing between a ‘formal kiss’ and a ‘proper kiss,’ stating: ‘All I did was a lip to lip kiss.’ When pressed about the difference between a ‘proper kiss’ and a ‘formal kiss,’ consistent with his previous messages to a friend,[79] Mr Singh insisted he was not aware of the difference. When referred by Mr Mosley to his previous evidence where he made the distinction,[80] Mr Singh conceded the kiss he shared with the child was ‘a proper kiss’ and that he was previously ‘making excuses’ that were ‘not true.’  When referred to his subsequent messages suggesting there was more physical contact with the child, Mr Singh disagreed:

   [78] Ibid, 974 [30].

   [79] Ibid, 551.

   [80] Ibid, 995 [3]-[4].

   ‘Yes there was a kiss and I also touched her leg, and I also moved hair from her face, there was nothing more than that.’

   (vii)When asked about the circumstances in which he touched the child’s leg, Mr Singh explained she was telling him stories about her studies and he brushed her hair away from her face and in the same movement touched her left calf briefly. When pressed further about his reasons for doing so, Mr Singh stated: ‘I was just loving that moment, I was enjoying that moment.’ Mr Singh also said he had taken a photo of the child at the park with her permission;

   (viii)Mr Singh agreed that contrary to his previous evidence,[81] it was he and not the child who had taken the lead in initiating and encouraging the sexual chat. When asked if he could point to one instance where the child had initiated a chat on sexual topics, Mr Singh said he could not;

   [81] Ibid, 525-526; 533.

   (ix)Mr Singh confirmed he was aware the child’s mother knew ‘something is going on here,’ and was trying to stop contact between them. Despite warnings from friends about being in trouble with the police and risking his visa status, Mr Singh continued to contact the child. He agreed that he acted to circumvent the mother’s efforts;

   (x)When asked why he continued to contact the child Mr Singh responded: ‘I couldn’t control my emotions, I couldn’t control myself.’ He agreed that he sent the child messages, including about masturbating at the thought of her, touching her ‘boobs’ and ‘pussy,’ asking about her period and sex during periods, invited her to sit on his ‘private parts,’ and that he wanted to lay in bed with her. Mr Singh said he was ‘really sorry’ about sending the messages;

   (xi)When asked what harm he thought may have been done to the child, Mr Singh stated: ‘I’m pretty sure I damaged her from a psychological point of view and emotionally on top of that;’

   (xii)When asked if he liked young girls, Mr Singh responded: ‘No, I’m not that kind of person that likes young girls.’ Mr Mosley directed Mr Singh to an online message exchange with a friend approximately a week after meeting the girl, to whom Mr Singh stated: ‘I like young…11 year…Hahhahaha… Too much young…hehe…if she up to 18….’[82]  Mr Singh confirmed these were his words, but clarified that what he intended to convey was that he liked young women 18 and over. When referred to his message to the child in which he joked about the age gap between them as: ‘25 to 11, people get shock mhaaahha,’[83] Mr Singh submitted this was intended as a joke that he now realised was not funny and for which he was remorseful. When referred to a further conversation with a friend on 5 March 2014, in which Mr Singh’s friend suggested he should ‘wait for another 10 years…when she grows up,’ to which Mr Singh responded: ‘Cant’ wait,’[84] Mr Singh explained:

   [82] Ibid, 400.

   [83] Ibid, 586.

   [84] Ibid, 566.

   ‘The reason I said that is because I was…totally emotionally mad with the chat. When I found out she was just 11 years old, her mother told us to stop, but it was still my desire to keep chatting to her.’

   (xiii)Mr Singh agreed that joking with his friends and the girl about the age gap between them, suggested it was very clear to him that he was not infatuated with a 23 year old fake Korean online presence, but was pursuing an infatuation with an 11 year old child;

   (xiv)When asked by Mr Mosley if he was excited and carried away by sexual excitement or a desire to have sex with the child, Mr Singh variously stated: ‘No that’s wrong. I was carried away by the person I was chatting with – not only because she’s a child…Not because she’s a child, but because I had an emotional attachment despite knowing she was 11 years old….I was looking for a partner and I was really attached to the account I was talking to for the previous three months.’ Mr Singh contended that even after realising the 23 year old Korean woman was a fake and even though he knew the girl was 11 years old from 15 February 2014, including after meeting her on 21 February 2014, he still somehow conflated the two: ‘Everything was in front of me, but I was in denial and not accepting it…When I met her I liked her and was already attracted to her.’ He stated that on reflection, his conduct was ‘very bad…it was kind of filthy;’

   (xv)Mr Singh submitted that the reference by psychiatrist Dr Ong to Mr Singh only messaging the girl when he thought she was 24 years of age,[85] was ‘not right.’ Mr Singh claimed this was a mistake in Dr Ong’s report that had been corrected by his lawyer and Dr Ong. He could shed no light on why Dr Ong’s report remained in unamended form as a court exhibit;[86]

   (xvi)Mr Singh agreed that contrary to his previous evidence that his intent was to gradually and gently break contact with the child so as to spare her feelings, this was not true. When asked by the Tribunal when he would have stopped contacting the child if not arrested, Mr Singh replied: ‘I have no idea…It would have been very hard for me to stop it…I was loving the moment and never had a plan to leave.’ He submitted that despite warnings from friends about the risk of arrest and to his visa status, his intention to stop contact with the child was never acted upon. Instead his sexualised messaging increased. Mr Singh stated inter alia: ‘The thought came in my mind to slow down or stop the chat…but I couldn’t make the right decision at that time…it never came into effect and I still carried on with it…I had a thought to slow it down, but it was going up…We’d been talking since December…I was lonely, I was looking for company…I wanted to keep chatting…I couldn’t stop it…I was struggling with my emotions;’ and

   (xvii)Mr Singh agreed with Mr Mosley that he was open to another meeting with the girl, which he had tried to arrange:[87] ‘Yes I thought I’d meet her again.’

   (c)In relation to the interests of children in Australia that he relied upon, Mr Singh referred to his biological child who was born in February 2019, and to his two nephews aged five and one respectively. Mr Singh said he considered the older nephew to be like a son to him, but agreed that his association with his youngest nephew was not as strong. He said that his sister and her husband had separated in May or June 2019 and he now intended to play an even more prominent role in the lives of both nephews if allowed to remain in Australia. He said the rental property his sister, wife and the children currently lived in was being put up for sale, and he would help them search for another property, financially support them, and help ensure the children got a good education;

   (d)Mr Singh said that in July 2019 he had withdrawn the partner visa application previously lodged for his wife. He did this by signing a form she brought him in immigration detention. His wife was now an applicant for a different visa category, which was yet to be decided. He submitted that her current intention was to remain in Australia with their child and not accompany him to India if he was repatriated. Mr Singh said it had been a hard choice for his wife to make, but it was the best way to secure a better future for herself and their child. Mr Singh submitted that his wife was having a difficult time in his absence and was suffering from post-natal depression. Her health had also been exacerbated by uncertainty about whether he would be permitted to remain in Australia;

   (e)Mr Singh submitted that if his application was unsuccessful, he would find it ‘very hard.’ He agreed with Mr Mosley that he was educated, had completed senior secondary college in India, had started but not completed a Bachelor of Arts in India, had undertaken tertiary study in Australia in horticulture and run his own business for two years, had worked as a factory hand and in a bakery, as well as holding down jobs in the security industry. Mr Singh submitted that his horticulture qualifications were not easily transferable to India because ‘agricultural land is different’ and he would have to survive on a ‘labour class job’ if returned. He contended that his security skills were also of limited utility because his licence was not recognised in India and most jobs in the industry were held down by ‘ex-army and ex-police;’

   (f)Mr Singh said he had one brother and one sister in India, but did not have much contact with either,[88] having last seen them at his mother’s funeral in August 2018. Their last telephone contact was ‘2-3 years ago.’ He had no other relatives or friends to rely upon and feared discrimination because of his offending, which he claimed his wife’s family now knew about. He submitted that he could try relocating to other parts of India but the ‘Punjabi people can be found everywhere,’ and claimed his first name was ‘very rare;’

   (g)Mr Singh said his sister and her husband had separated some months ago and his sister was suffering depression. His wife, sister and the children continued to live together and he financially contributed to the rent, household expenses and other costs from his savings.

   [85] Ibid, 432.

   [86] Ibid, 1022 [10]-[45].

   [87] Ibid, 595 [middle line, middle box].

   [88] Ibid, 92, [2].

   Witness statements and references

2. The Tribunal has considered the statements and letters in evidence supportive of Mr Singh. None of the authors gave evidence at the present hearing other than Mr Singh’s sister. Her evidence can be summarised as follows:

   (a)She adopted her statement as true and accurate, which was first translated to her by an interpreter;

   (b)She migrated to Australia with her husband in 2009. They have two children. She submits that she and her children are Australian citizens;

   (c)Mr Singh loves his nephews and plays with them a lot. She claimed her eldest child’s teacher had recently told her the child had become ‘very isolated.’ When asked whether she thought that resulted from her husband leaving the family home in May 2019 or from Mr Singh entering immigration detention in late 2018, she said it was both;

   (d)Since separating from her husband she has had no contact with him. She was currently exploring his obligation to pay child support. She had also attended counselling to deal with the stress of separation, impending divorce, and the uncertainty surrounding her brother’s immigration status;

   (e)She was not aware of Mr Singh’s online relationships, including with the girl against whom he offended, until police arrested him. He told her after being released on bail that he ‘did a very silly mistake,’ by being in contact with an 11 year old girl, including sending her messages in a ‘sexual manner;’

   (f)When her husband was still in the family home they visited Mr Singh in immigration detention two to three times a week. Her husband was the only person in the home with a driver’s licence, so visits to Mr Singh since their separation were now about once a week. Mr Singh’s sister stated that sometimes they hire an Uber and sometimes a friend drives them;

   (g)Her husband previously paid for rent and other expenses, but she now relied heavily on Mr Singh to assist financially. She works part-time three days a week, from which she earned $450 weekly after tax, and also claimed to receive income support payments from Centrelink of $117 per fortnight. Her monthly rent was $1763 and Mr Singh paid the last monthly rental on 23 October 2019. Whenever she needed ‘money or any help,’ she stated that Mr Singh ‘never says no.’ Despite his financial help, she was finding it difficult to meet all of her expenses and recently had to stop her eldest child’s swimming classes;

   (h)Because the owner of the property she lived in with Mr Singh’s wife was being put up for sale, they would have to move and she hoped Mr Singh would be able to help the family find new accommodation;

   (i)She would not accompany Mr Singh back to India if he was repatriated, because she wanted a future for her and her children here;

   (j)She did not have contact with her brother or sister in India, who she had last seen at their mother’s funeral in 2018; and

   (k)Her mother and father were deceased and her grandparents were in their 90’s so Mr Singh could not rely on any support if returned to India.

   PRIMARY CONSIDERATIONS

   Protection of the Australian community from criminal or other serious conduct

3. Clause 9.1 of the Direction states:

   (1)  When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

   (2)  Decision-makers should also give consideration to:

   a)    The nature and seriousness of the non-citizen’s conduct to date; and

   b)    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

4. Paragraph 9.1.1(1) sets out factors that decision-makers must have regard to in determining the nature and seriousness of a non-citizen’s criminal offending or other conduct to date.

   Tribunal consideration: The nature and seriousness of the conduct

5. The sentencing remarks refer to Mr Singh’s offending as ‘very serious.’[89] The Court referred to the child’s ‘tender years,’ and that it ‘is almost inevitable there will be some deleterious effect.’[90] The Tribunal notes this observation is supported by the Australian Institute of Family Studies,[91]  which has referred to research consistently associating child sexual abuse with adverse future consequences for victims.

   [89] Ibid, 50 [31].

   [90] Ibid, 45 [10].

   [91] >

   Mr Singh acknowledged his offending was ‘very serious,’[92] submitting in his most recent statement:

   ‘I know that what I did to the victim was wrong, and I regret every day that I engage in this behaviour…I know how wrong my behaviour was in every respect.[93]

   [92] Applicant’s Statement of Facts, Issues and Contentions (“ASFIC”), 5 [39].

   [93] Exhibit A1, 1 [5].

6. Mr Aleksov stated in closing submissions that Mr Singh’s offending was ‘very serious.’ He referred to contextually relevant factors as being Mr Singh’s ‘state of mind’ prior to 14 February 2014 in not knowing the child’s age, the pressure being exerted by Mr Singh’s family that he should marry, and his development of an infatuation with an online persona; a relationship he then found difficult to move away from. Other contextually-relevant factors submitted on Mr Singh’s behalf include:

   (a)Mr Singh has ‘shown sincere remorse for the offending;’[94]

   (b)The child’s age was not known to Mr Singh at the time he started communicating with her, and the period of time he continued to contact the child after knowing her correct age, ‘was approximately three weeks;’[95]

   (c)There was no evidence of escalating sexual violence or physical coercion;[96]

   (d)The circumstances in which Mr Singh continued communicating with the child reflect his ‘background and social immaturity.’[97] Moreover, his conduct after becoming aware of the child’s age was assessed by forensic psychologist Ms Pamela Matthews as ‘maladaptive but…within the realms of normal human emotional responses,’ and was ‘not driven by sexual deviance;’[98]

   (e)Through treatment, Mr Singh now understands how to stop himself from similar conduct in the future;[99]

   (f)Although sentenced to imprisonment, Mr Singh’s term was ‘wholly suspended and he was not required to serve even one day in custody.’[100] Moreover, the Court imposed a CCO on the charge of committing an indecent act, ‘which is a modest sentence;’[101] and

   (g)Mr Singh’s offences occurred over five years ago and were ‘two inter-related instances, without any cumulative effect.’[102]

   [94] ASFIC, 5 [40].

   [95] Ibid, [42].

   [96] Ibid.

   [97] Ibid, [43].

   [98] Ibid, 5-6 [43].

   [99] Ibid.

   [100] Ibid, 6 [45].

   [101] Ibid.

   [102] Ibid, [47].

1. The Respondent submitted:

   (a)Pursuant to the Direction, sexual crimes are viewed ‘very seriously’ and crimes committed against vulnerable members of the community, such as minors, are serious;[103]

   (b)Mr Singh knew what he was doing was wrong. His persistence and attempt to hide his communications with the child ‘should be of ongoing concern;’[104] and

   (c)Mr Mosley pointed to Mr Singh’s concession that he knew the child was 11 years of age for approximately six days before their meeting  rather than when he met her as previously claimed, as evidence of grooming that ‘did involve predatory conduct.’ He said that was supported by Mr Singh’s jokes about the age difference, the element of planning in arranging their meeting, efforts to arrange a second meeting, and recent concessions that it was him and not the child who initiated physical contact and that he was sexually attracted to the child.

   [103] Respondent’s Statement of Facts, Issues and Contentions (“RSFIC”), 5 [24].

   [104] RSFIC, 5 [26].

   Tribunal findings: The nature and seriousness of the conduct

2. The following findings are made about relevant aspects of clause 9.1.1(1) of the Direction:

   (a)9.1.1(1)(a)-(b): Mr Singh was convicted of sexual crimes against a child, which are viewed very seriously. He used a carriage service to groom an 11 year-old child for sexual activity, then wilfully committed an indecent act against her. His offending encompasses both non-contact and contact offending involving a child;

   (b)9.1.1(1)(c): The victim of Mr Singh’s offending is demonstrably a vulnerable member of the community within the meaning of the Direction;

   (c)9.1.1(1)(e): Both the nature of Mr Singh’s offending (sexual offence against a child) and the sentence imposed (12 months imprisonment), support a finding that he does not pass the character test; and

   (d)9.1.1(1)(f): Mr Singh was awarded a 12-month sentence which is at the top of the sentencing hierarchy. In response to submissions that Mr Singh’s prison sentence was ‘wholly suspended and he was not required to serve even one day in custody,’ the Tribunal accepts the Full Federal Court’s elaboration on this issue in Brown:[105]

   ‘The focus of ss 501(7)(c)…is on the length of the term of imprisonment to which the person is sentenced, not the manner in which the sentence is to be or subsequently may be, served.’

   [105] Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113 at [7] and [12].

3. Mr Singh’s conduct reliably informs a finding that there was a predatory nature to his offending. He knew the child’s age six days before organising to meet her. He initiated and encouraged highly sexualised chat despite the child feeling uncomfortable.[106] He circumvented efforts by the child’s mother to stop the contact, and continued messaging friends about maintaining contact with the child.[107] He attempted to organise another meeting with the child and persistently encouraged her to keep their contact a secret. Examples of the latter include:

   ‘So good to keep secret.’

   ‘Make sure Yu don’t tell anybody about us meeting, otherwise we both can get in big trouble.’

   ‘My friend said this to me…if her parents found out bout you meeting her you can be charged with indecent acts towards a child.

   ‘Also del out all chat history…All that history. Everything’

   ‘If you love me then please don’t tell anybody.’

   ‘Make sure you don’t…otherwise I’m gonnna get in jail and my whole life gonna finish…also couple of another people too. [108]

   [106] Exhibit R1, 387-388; 604-607; 609; 612; 647.

   [107] Ibid, 540-568.

   [108] Ibid, 573-574.

4. Mr Singh’s offending is objectively very serious and predatory in nature.

   Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

5. Clause 9.1.2 of the Direction states in part:

   (1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk it may be repeated may be unacceptable.

   (2)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

   a)        The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious    conduct; and

   b)        The likelihood of the non-citizen engaging in further criminal or       other serious conduct, taking into account:

   i. information and evidence on the risk of the non-citizen re- offending; and

   ii. evidence of rehabilitation achieved by the time of the decision,    giving weight to time spent in the community since their most recent      offence (noting that decisions should not be delayed in order for         rehabilitative courses to be undertaken).

6. The sentencing remarks refer to Mr Singh’s likelihood of reoffending as ‘modest.’[109] That finding follows the Court’s consideration of reports by Ms Matthews and Dr Ong. His Honour concluded that Mr Singh:

   (a)had indicated ‘true remorse’ for his actions[110] by pleading guilty;

   (b)was suitable for a CCO;[111]

   (c)had not been ‘in further trouble’ since being released on bail some eight months earlier;[112] and

   (d)had ‘reasonably good’ prospects of rehabilitation.’[113]

   [109] Ibid, 49 [28].

   [110] Ibid, 46 [14].

   [111] Ibid, 49 [25]; 405-406.

   [112] Ibid, 49 [26].

   [113] Ibid.

7. Corrections Victoria undertook a CCO Assessment Report for the Court in October 2014, concluding that Mr Singh constituted ‘a low risk of re-offending according to the VISAT.’[114]

   [114] Ibid, 405-406. VISAT is the Victorian Intervention Screening Assessment Tool, a copy of which can be found at: <>

   Mr Aleksov submitted that the Tribunal should have regard for Ms Matthews’ assessment in her 3 January 2019 report, that Mr Singh’s risk of reoffending is ‘very low, negligible, insignificant and unlikely.’ He said Mr Singh was unlikely to develop a similar infatuation with a child in the future and although the potential harm of Mr Singh reoffending is ‘very large, the risk is very low.’ Mr Aleksov contended that Mr Singh now took full responsibility for his offending, and was no longer attempting to shift blame on the child, or suggesting that his offences constituted a ‘technical breach’ of the law as he did at the January 2019 hearing. The following written submissions were also made as relevant to this primary consideration:[115]

   (a)Mr Singh has no previous convictions in India and no other convictions in Australia;

   (b)Mr Singh pleaded guilty to the charges, demonstrating his remorse, acceptance of responsibility, and awareness of the seriousness of his offending;

   (c)Mr Singh has demonstrated a strong commitment to changing his lifestyle and behaviour following the offence. He has married, maintained close links to the community through family and social connections, was consistently employed between his offending and prior to being taken into immigration detention, and has contributed to charitable causes;

   (d)The Court has concluded that ‘in all the circumstances the risk of further harm to the community and risk of reoffending is low;’

   (e)Since his offending, Mr Singh has reflected on his behaviour, undertaken an appropriate sex offender’s treatment program, and sought support from his family, which he is receiving;

   (f)Mr Singh was immature and inexperienced in relationships at the time of his offending, which is no longer the case. He has matured and his contextual circumstances have changed. These include: maintaining stable accommodation and full-time employment prior to entering detention; helping care for his sister and nephews; getting married; and becoming a parent.

   [115] ASFIC, 6-7 [48]-[58].

8. Mr Mosley submitted that Mr Singh had been untruthful and evasive in aspects of his evidence, including previous attempts to shift blame onto the child, before agreeing it was he who organised the meeting, initiated physical contact and all of the sexual chat. Mr Mosley submitted that Mr Singh’s evidence during the police interview and at the previous hearing about intending to slowly end his contact with the child was also false. He pointed to Mr Singh’s current evidence that his contact with the child was winding up, not winding down. Moreover, Mr Singh stated that he had no specific plan to stop contacting the child and did not know how long it would have continued if he had not been arrested. Mr Mosley referred to Ms Matthews’ assessment that there was no absolute guarantee Mr Singh would not reoffend, the court’s assessment that the likelihood of Mr Singh reoffending was ‘modest,’ and the CCO assessment of a ‘low’ risk, in inviting the Tribunal to conclude the risk was ‘low,’ but not ‘very low’ or the other descriptors used by Ms Matthews. Mr Mosley submitted the other descriptors were not provided for in the actuarial tool Ms Matthews applied. Mr Mosley concluded that the seriousness of any repeat offending by Mr Singh was such that his risk to the community is ‘unacceptable’ within the meaning of para 9.1.2(1) of the Direction.

9. The Tribunal has considered the references from Mr Singh’s previous employment as a security officer between 2015 and 2018.[116] The Tribunal also notes the restoration of Mr Singh’s security licence from 24 July 2015, enabling him to work in the security industry.[117]

   [116] Exhibit R1, 149; 925.

   [117] Ibid, 932.

10. The Tribunal notes the information in evidence regarding Mr Singh’s compliance with orders of the court and rehabilitation courses, including:

    (a)A letter from Corrections Victoria confirming Mr Singh’s participation in the Better Lives Program;

    (b)A letter from Corrections Victoria confirming that Mr Singh’s CCO has been officially discharged as satisfactorily completed; and

    (c)Certificates, Statements of Participation, and a Learner Record confirming Mr Singh’s involvement in various free, online courses during August and September 2019.

11. The Tribunal has considered the material lodged by Mr Singh’s family members, friends, and others, who continue to support him, value his contribution in their lives, or express offers of practical and emotional support.[118] Where the authors have previously been called as witnesses, the Tribunal has had regard for their evidence in the transcripts. In considering references from family members and close friends, however, the Tribunal is mindful of the fact that they often provide the best possible perspective in relation to the conduct of an applicant, which other members of Australian society might consider unacceptable. Care must therefore be taken about the weight placed on references from family members and close friends. Only Mr Singh’s sister was called as a witness. Less weight is placed on the evidence of those whose perspectives could not be tested under cross-examination.

    Tribunal findings: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

    [118] Exhibit R1, 108-126; 141-146; 913-924.

12. The submission that Mr Singh ‘has no previous convictions in India’[119] is not accepted. The Indian police certificate was issued on 24 June 2013, which is over six years old and pre-dates Mr Singh’s offending. The Tribunal finds instead that Mr Singh had no disclosable convictions in India prior to 24 June 2013.

    [119] ASFIC, 6 [48].

13. If Mr Singh were to repeat his offences, the harm that may be inflicted on an Australian child is potentially very significant. In such circumstances, even a low risk of Mr Singh committing further sexual offences against a child would be of significant concern.

14. Pursuant to the principle at cl 6.3(3) of the Direction, Mr Singh has committed crimes of a sexual nature against a child and should generally expect to forfeit the privilege of staying in Australia. It is acknowledged there are only two offences relating to a course of conduct over an approximately three-week period. But the potential harm of reoccurrence transcends a purely quantitative analysis. It is clear that Mr Singh’s criminal conduct was not impulsive or fleeting, but characterised by a concerning persistence and, for the reasons previously adduced, was predatory in nature:

    (a)He established an online relationship with a person who he knew by 15 February 2014 was an 11 year old child;

    (b)Despite having six days to reflect on the inappropriateness of meeting the child, and despite being counselled not to do so, he arranged a meeting. The child was in her school uniform, Mr Singh acknowledged she was a ‘minor,’ yet he allowed her into his car and drove her to a park. According to Mr Singh’s evidence at the first hearing, the physical contact between them included him touching her legs, a brief ‘formal’ kiss on the lips, and a hug, the latter two being initiated by the child. He claimed that he was not sexually-attracted to her. At the current hearing he concedes it was a ‘proper kiss,’ he initiated physical contact, and he was sexually-attracted to the child;

    (c)Mr Singh continued to contact the child for over two weeks after their meeting, including in the highly sexualised terms previously discussed. Messages Mr Singh exchanged with friends on the day of the meeting and the day after the meeting include:[120]

    [120] Exhibit R1, 545-549.

    Day of meeting: 21 February 2014

    ‘MR SINGH: I’m imagining her kiss(yummy)(tongue)(laugh)…Still on my lips

    FRIEND: She’s only 11

    MR SINGH: I’m 25…I can’t forget

    FRIEND: I can’t believe

    MR SINGH: Waa awesome

    FRIEND: You are insane

    MR SINGH: Yeah why

    FRIEND: She’s a kid

    MR SINGH: I know which I did was wrong…I shouldn’t do it…But I couldn’t control….When she came close to me

    FRIEND: Her parents can charge you…Sick

    Day after meeting: 22 February 2014

    MR SINGH: I meet yesterday with that 11 years old girl

    FRIEND: wtf?

    MR SINGH: We just meet for one hour

    FRIEND: that girl needs a smack in thd bum

    MR SINGH: Hahahahh

    FRIEND: How did her parents allow her out by herself

    MR SINGH: Apparently we kissed too

    FRIEND: not funny man

    MR SINGH: Which I feel sorry for it

    FRIEND: You could get in alot of trouble

    MR SINGH: I know

    FRIEND: she’s not even a teenager let alone a woman

    MR SINGH: Yeah

    FRIEND: …younger enough to be your little sister…what if her parents find out?

    MR SINGH: Then maybe I was in trouble

    FRIEND: …you will be in a shitload of trouble not to mention ur visa…seriously u need a slap in the head

    MR SINGH: Oh fuck

    FRIEND: Yes she is a minor… if her parents found out bout the kiss or even you meeting her you can be charged with indecent acts towards a child

    MR SINGH: Please don’t scare me…We can say meet as friend

    FRIEND: serious…like peodophilia…no meeting no phone contact…unless you want to end in prison…not fucking with you Australia has the toughest child protection laws

    MR SINGH: Omg…what have I done

    FRIEND: i suggest you say to her sorry but we can not hang out again as your parents would not approve…and I do not want to get either of us in trouble…I told u her parents can charge u

    FRIEND: do you have a photo of this girl?

    MR SINGH: Yeah I took it

    FRIEND: show me…dude she looks like a kid

    MR SINGH: I’m fucked…She tell anyone than I’m in trouble

    (d)Mr Singh nevertheless continued contacting the child after their meeting, tried to organise a second meeting, and tried to cover up his offending by telling the child to keep their contact a secret, and to delete their messages because he feared imprisonment;

    (e)Even after noting the child’s family had likely removed her mobile and other devices, Mr Singh told friends he could not stop thinking about the child, had waited all day for her message, and couldn’t wait for her to grow up;[121] and

    (f)Mr Singh’s communications with the child only ceased because of arrest, not of his own volition. The Tribunal rejects the following inference in Ms Matthews’ report:

    ‘It’s an attachment…before he knows that she’s 11 that leads to him continuing that behaviour for a period of time before he stops.’ (emphasis added)

    Mr Singh’s evidence at the current hearing is that he had no plans to stop and did not know how long his efforts to contact the child would have continued if he had not been arrested. His actions are not of someone intending to gradually stop contact as he contended to police and at the previous hearing, but of going to great lengths to preserve contact.

    [121] Ibid, 565-569.

15. It is not to Mr Singh’s credit that he maintained what he now concedes was an untruthful position on key aspects of his evidence for over five years, despite plentiful opportunities to tell the truth, including most recently at the January 2019 hearing. His concessions give rise to concerns about the veracity of the expert assessments made by Ms Matthews and Dr Ong. It follows that:

    (a)The Tribunal does not accept Mr Singh was truthful when telling Ms Matthews that he did not know the child was 11 until meeting her;

    (b)The Tribunal does not accept Ms Matthews’ assessment that ‘Mr Singh does not display attitudes that…condone…his behaviour,’ which is contradicted by his messaging to friends, persistence in maintaining contact with the girl, and attempts to organise a second meeting;

    (c)The Tribunal does not accept Ms Matthews’ assessment that ‘Mr Singh has been insightful and frank in treatment,’ given that it has taken him over five years to make the concessions he made at the present hearing;

    (d)The Tribunal does not accept Ms Matthews’ opinion that there was ‘initially some evidence of Minimisation of his Behaviour’ by Mr Singh, which ‘has now been addressed in treatment.’ That’s because Mr Singh continued to minimise his behaviour and inappropriately attempted to attribute responsibility on the child, until claiming to have ceased doing so at the present hearing;

    (e)The Tribunal is unpersuaded by Ms Matthews opinion that it was not Mr Singh’s ‘intent to seek out a child on the internet but rather he accidentally found a child on the internet.’ Whatever his intention, even after realising he was dealing with an 11 year old child approximately a week before their meeting, Mr Singh met the child and continued his illegal conduct thereafter. His current evidence is that the illegal conduct would have continued for an indeterminate period had he not been arrested, which conflicts with Ms Matthew’s opinion that Mr Singh continued his ‘behaviour for a period of time before he stops.’ Mr Singh’s evidence now leaves open the possibility at least that his conduct may have continued for long enough to satisfy the diagnostic criteria under DSM-5 referred to by Ms Matthews, requiring ‘a persistent pattern of behaviour for six months or more.’ The Tribunal is unable to make a reliable finding in this regard and places no weight on the prospect. It is clear, however, that the ground under Ms Matthews’ year-old report has shifted in light of Mr Singh’s that he was in ‘denial’ and ‘covering up’ his offending until the present hearing. The Tribunal places less weight on Ms Matthews’ opinion as a consequence;

    (f)In light of his concession about knowing the child was 11 from 15 February 2014, the Tribunal does not accept that Mr Singh was truthful when telling Dr Ong that when meeting the child on 21 February 2014, he only ‘suspected’ she was ‘younger than 17 years of age;’

    (g)The Tribunal does not accept that Mr Singh was truthful when telling Dr Ong that he had only engaged in sexual chat when he thought the person he was communicating with was 24.[122] There is no reliable evidence to corroborate Mr Singh’s claim that this was an erroneous inclusion in Dr Ong’s report, subsequently corrected by his lawyer and Dr Ong at the trial. Dr Ong’s report appears to have been accepted unaltered as a court exhibit. In light of the fact that aspects of Dr Ong’s now five-year-old report do not reflect Mr Singh’s current evidence, the Tribunal places less weight on Dr Ong’s opinion; and

    (h)The Tribunal does not accept that Mr Singh was truthful when telling Dr Ong that he only fell in love with the profile of the older Korean identity, or that he only sought counsel from friends after the meeting before becoming aware of the illegality of his actions, or that Mr Singh subsequently tried to reduce contact, or that Mr Singh was confused about wrong and right. That’s because the evidence discloses Mr Singh knew the girl was 11 almost a week before meeting her and joked in messages about the age discrepancy. He was also told by friends before the meeting that his actions were illegal and based on his current evidence, knew his conduct was both wrong and illegal prior to and after the meeting. Mr Singh did not act to reduce contact, but increased contact and attempted to organise a second meeting. 

    [122] Ibid, 1022 [6]-[12].

1. Her Honour’s reasoning at [74]-[79] then dealt with the issue of whether the clause gives expression to an expectation that must of its nature weigh against the grant of a visa in every case:

   74. I have accepted the Minister’s submission that cl 11.3 is intended to give effect to the principle that the Minister may make a statement of the government’s views about the expectations of the Australian community, which statement may be acted on by the person conferred with the power in a particular case, as recognised in Uelese. In my view, the task of the decision-maker is to identify what is the “government’s view” about community expectations in the particular case, to “have due regard” to that view and to “generally” afford that view more weight than other non-primary considerations in accordance with cl 8(4).The phrase “may be appropriate” does not permit the decision-maker to equate the expectations of the Australian community…with the decision-maker’s own view as to the preferable outcome in the ultimate exercise of the discretion…The primary judge was correct to say that importing…all countervailing factors bearing on the ultimate decision would render cl 8(4) of the Direction unworkable.

   75. Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectations will arise in most if not all cases…having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.

   76. The question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion...

   …

   78. The primary judge concluded (at [42]) that the Tribunal “must give effect to the ‘norm’ stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases.”

   79. I agree with that statement insofar as it recognises that the government’s assessment of the expectations of the Australian community is that a non-citizen who has committed a serious offence should not be granted a visa. Strictly speaking, it is not correct to say that the expectation is one to which the Tribunal “must give effect”. The Tribunal must in all cases determine whether it is appropriate to refuse to grant the visa. In an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be. In such a case, the decision-maker would depart from the relative ascription of weight for which cl 8(4) “generally” provides, as he or she is permitted to do…

2. In agreeing with Charlesworth J, Stewart J referred at [95] to the community’s expectation that non-citizens must obey Australian laws, as a ‘normative principle’. His Honour acknowledged at [97] circumstances where the non-citizen’s offending or conduct ‘will not lead to refusal of the visa application,’ and that in cases of ‘particular offending’ or conduct, that alone may be a ‘sufficient basis to refuse the visa’ (at [98]). His Honour summarised the community’s expectations within the meaning of the Direction as having three key aspects (at [100]-[103]):

   ·     non-citizens will obey Australian laws when in Australia;

   ·     it may be appropriate to refuse a visa application where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere;

   ·     in a particular case, the refusal of the visa may be appropriate simply because the nature of the character concerns or offences is such that they should not be granted a visa.’

   101. Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.’

   102. It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa. In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight. In another case, because of the severity of the character assessment, the weight may be substantial. Thus, the character assessment, even through the prism of community expectations, may not be decisively against the applicant. In many cases it will not be. That is why the decision-maker must assess what is “appropriate” in the particular circumstances. Nevertheless, an adverse character assessment is necessarily against a visa applicant, to some degree or other; no one will be awarded a Visa because they are of bad character.

   103. The community’s expectations, as I construe cl 11.3(1), speak normatively; they are to be applied in every case but they are not expressed in relation to any particular case. This means that it would be wrong for the decision-maker to ask themselves a question along the lines of “what would the community expect in this case?” It is also incorrect to construe the community expectation as expressing or requiring, in any particular case, either the grant or the refusal of the visa. In a particularly egregious case, the weight to be afforded the community expectations would be such that a refusal might be thought to be inevitable, and at the other end of the spectrum are refusal might be thought to be unlikely, but in neither case and in all the area in between the community expectation will not express or require one or the other. That is a matter for the decision-maker.

3. The reasoning in FYBR establishes that the principles at cl 6.3 of the Direction can help inform the weight a decision-maker attributes to this primary consideration. For example, cl 6.3(3) of the Direction states that non-citizens who commit serious crimes, including ‘of a violent or sexual nature, and particularly against women or children…should generally’ expect to forfeit the privilege of staying in Australia. That being said, use of words like ‘should generally’ convey discretion and require consideration of what specific weight to apply to findings emerging from the specific circumstances of each case (cl 6.1(3)). Decision-makers must also be mindful of cl 6.3(5), which states that a higher level of tolerance may be afforded to those who have ‘lived in the Australian community for most of their life, or from a very young age,’ and cl 6.3(7), which requires consideration of the length of time ‘a non-citizen has been making a positive contribution to the Australian community.’

4. Their Honour’s reasoning in FYBR, in the Tribunal’s respectful view, appropriately reflects the potential inherent in cl 8(3) of the Direction, that: ‘Both primary and other considerations may weigh in favour of, or against...’ Moreover, it reinforces the flexibility in cl 8(4) that requires the government’s assessment of community expectations to be ‘generally…given greater weight than the other considerations.’ (emphasis added).’ The Tribunal has previously concluded that informed of the specific circumstances of a case, the ‘broad middle ground of our society,’[136] may consider this primary consideration has neutral effect,[137] or in other cases that it weighs against an applicant.[138]

   [136] LCNB and Minister for Immigration and Border Protection [2015] AATA 463, at [77]-[81].

   [137] ZNBG and Minister for Home Affairs [2019] AATA 1872 at [125].

   [138] Umi v Minister for Home Affairs [2019] AATA 2316.

   Tribunal findings: Expectations of the Australian community

5. By being convicted of sexual crimes against a child, Mr Singh has breached the Australian community’s expectation that non-citizens obey Australian laws while in Australia. The community’s tolerance for such offending is particularly low when it comes to children, because of their vulnerability. Their emotional maturity is not fully developed and they are at a considerable disadvantage when confronted with choices of a sexual nature, making them particularly susceptible to abuse and exploitation.

6. Having given due regard to the deemed community expectation in the specific circumstances of this case, weighed against factors like the time Mr Singh has spent in Australia and the positive contributions he has made through work and other avenues, the Tribunal concludes that the Australian community would nevertheless expect Mr Singh’s visa to be cancelled. That finding is strengthened by the significant concessions Mr Singh has made at the present hearing, some five years after his offending, and characterisation of some aspects of his previous evidence as untrue and ‘covering up.’

7. The Tribunal places substantial weight on this primary consideration in favour of exercising the discretion to cancel Mr Singh’s visa.

   OTHER CONSIDERATIONS

   Tribunal consideration: International non-refoulement obligations

8. Clause 10.1 of the Direction provides:

   (1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia's interpretation of those obligations and, where relevant, decision- makers should follow the tests enunciated in the Act.

   (2)       The existence of a non-refoulement obligation does not preclude   cancellation of a non-citizen’s visa. This is because Australia will not   remove a non-citizen, as a consequence of the cancellation of their visa, to               the country in respect of which the non-refoulement obligation exists.

   (3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to a notice of intention to consider cancellation of their visa under s 501 of the Act, or can be clear from the facts of the case (such as where the non-citizen held a protection visa).

   (4)       Where a non-citizen makes claims which may give rise to international non-  refoulement obligations and that non-citizen would be able to make a valid             application for another visa, it is unnecessary to determine whether non-  refoulement obligations are owed to the non-citizen for the purposes of   determining whether their visa should be cancelled.

   (5) If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12 A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them – sections 48A and 48B of the Act refer).

   (6) In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should continue to hold a visa. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa were cancelled, they would face the prospect of indefinite immigration detention.

9. Neither Mr Singh nor his legal representatives raised any claims, nor does the evidence disclose that Australia’s non-refoulement obligations are enlivened in this matter. No weight is placed on this consideration.

   Tribunal consideration: Strength, nature and duration of ties

10. Clause 10.2(1) of the Direction states:

    … Reflecting the principles at 6.3, decision-makers must have regard to:

    a)        How long the non-citizen has resided in Australia, including whether the non‑citizen arrived as a young child, noting that:

    i.          less weight should be given where the non-citizen began offending soon after arriving in Australia; and

    ii.         More weight should be given to time the non-citizen has spent contributing positively to the Australian community.

    b)        The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of cancellation on the non‑citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

11. The Tribunal notes references in Ms Matthews report to Mr Singh’s ‘social isolation,’ only having a ‘small circle of friends and close supportive relationships,’ and struggling ‘to establish social networks in Australia outside this close small circle.’ She considered that Mr Singh partially met ‘the criterion for Problems with Non Intimate Relationships.’ Dr Ong similarly refers to Mr Singh having a small social network.

12. Mr Singh has resided in Australia for approximately 13 years, having arrived here as a young adult. He has formed a number of relationships through study and work in particular. In terms of family, Mr Singh’s sister, his sister’s husband, and two nephews reside in Australia. His sister has recently advised that she and her husband separated, and the Tribunal accepts Mr Singh no longer has the same close and supportive relationship with his brother-in-law that emerges from the January 2019 hearing. Mr Singh previously lived with his sister and brother-in-law, helped them with their eldest child, supported his sister during medical issues associated with her pregnancy, and made a financial contribution to the home they shared. Mr Singh continues to financially support his wife, sister and the children, from savings made during his previous employment in Australia.

13. The Tribunal is satisfied that most of the people Mr Singh has formed relationships with are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely. The people who have written supportive letters and references for Mr Singh would clearly be saddened by his repatriation, particularly Mr Singh’s sister and nephews, who would be adversely affected in an emotional and financial sense.

14. Mr Singh’s wife and child are not relevant to this consideration, given they are on bridging visas and currently have no right to remain in Australia indefinitely.

15. Through his study and work Mr Singh has made a positive contribution to the community, including by paying taxes. The Tribunal notes the documents in evidence about the taxes he has previously paid, his volunteering, and charitable donations. 

    Tribunal findings: Strength, nature and duration of ties

16. The Tribunal accepts Mr Singh has strong ties to his sister, nephews, and a relatively small circle of friends as reflected by the expert evidence. The Tribunal accepts these people would be emotionally affected by his repatriation to India.

17. The Tribunal places moderate weight on this consideration in favour of not exercising the discretion to cancel his visa.

    Tribunal consideration: Impact on Australian business interests

18. Clause 10.3(1) of the Direction states:

    Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where visa cancellation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

19. The Tribunal notes a letter from Mr Singh’s former supervisor in the security industry.[139] This supervisor appeared at the January 2019 hearing, describing himself as a ‘worker’ who managed a team of four.[140] He described the company’s recruitment and selection process as involving an interview with management, after which the applicant was sent to him at the site for a ‘second interview.’[141] He was unaware of the process undertaken by management about checking a candidate’s suitability and obtaining other required clearances.[142]

    [139] Exhibit R1, 127.

    [140] Ibid, 1115 [19; 1116 [10].

    [141] Ibid, 1117 [46].

    [142] Ibid, 1118 [1]-[6].

20. At the previous Tribunal hearing, when asked about the implications of Mr Singh not returning to his role, the supervisor said the company would undertake a recruitment and selection process to ‘find the right person,’[143] and then train that person. He described this as a difficult process and if their company could not continue providing the required service, there was nothing stopping the client from going elsewhere.

    [143] Ibid, 1114 [36].

21. The same supervisor has lodged a letter for the present hearing[144] repeating much of the material contained in his earlier letter, but was not called as a witness. He stated that since Mr Singh ceased work, the company has employed ‘2 guards…to no success,’ and a third was employed in August 2019, who was still going through the ‘adapting process.’ The supervisor stated that if one of the existing security personnel were to leave, he ‘would not see any problems recommending working again with Galjinder as long as he still holds or able to obtain a new Security licence.’ There is no evidence that the security company Mr Singh worked for has been unable to provide the required service for their client at the site in question, which produces DVD movies.

    [144] Exhibit T13.

22. The Tribunal notes from the transcript of the initial hearing in January 2019 that the supervisor was not aware of the specific details of Mr Singh’s offending, including the age of the child. He stated: ‘basically what I’ve been told was, the only physical contact was a kiss with a person under 17…he admit that he did a stupid mistake to kiss the girl…he admits that he did a mistake and was a moment of weakness…’[145] At the time of the previous hearing, the supervisor said he had advised Mr Singh the company would keep his job open ‘as much as we can,’[146] but this could not be sustained much longer.[147]

    [145] Exhibit R1, 1119 [18]-[20]; [36]; 44]-[45].

    [146] Ibid, 1113 [33].

    [147] Ibid, 1113 [42].

23. The Tribunal notes the letter from the National Business Manager of another security firm dated 10 April 2018, in which reference is made to Mr Singh’s part-time employment ‘since February 2016,’ and that it would be ‘very difficult to cover Galjinder’s role if he has to take any extended leave from the country.’[148] The author did not give evidence at the hearing and makes no reference to Mr Singh’s offending.

    [148] Ibid, 149.

    Tribunal findings: Impact on Australian business interests

24. There is no persuasive evidence that Mr Singh’s job remains open in either of the roles he previously occupied. The supervisor from his previous full time role states that he would be amendable to recommending Mr Singh be re-hired, but only if one of the existing security personnel were to leave and Mr Singh held the necessary security licence.

25. There is no persuasive evidence that Mr Singh’s absence from either role has had any significant impact on the operations of either company, or risks compromising the delivery of a major project, or delivery of an important service in Australia.

1. The evidence in relation to this consideration rises no higher than suggesting the security industry has a ‘high turn around (sic) of staff members’ and a process has been undertaken to replace Mr Singh, which has successfully recruited a replacement. 

2. The Tribunal is not satisfied that Mr Singh’s previous employment as a security guard rises to a level that would displace the presumption in the Direction, that weight would generally only be given where visa cancellation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

3. This consideration is given no weight.  

   Impact on victims

4. Clause 10.4(1), of the Direction states:

   Impact of a decision not to cancel 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 the non-citizen being considered for revocation has been afforded procedural fairness.

5. There is no evidence about the impact of a decision in this matter on victims and no weight is placed on this consideration.

   Tribunal consideration: Extent of impediments if removed

6. Clause 10.5(1) of the Direction states that:

   The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

   a)        The non-citizen’s age and health;

   b)        Whether there are substantial language or cultural barriers; and

   c)        Any social, medical and/or economic support available to them in that country.

7. Mr Singh’s evidence at the first Tribunal hearing in January 2019 was that he and his wife both intended to return to India if Mr Singh’s application was unsuccessful.[149] His wife’s evidence then was that she would return to her parents’ home.[150] Moreover, as the holder of an undergraduate and masters-level degree, she claimed to be able to ‘surely…get a job’[151] on return to India. The current situation, however, is that if Mr Singh’s application is unsuccessful, there is the prospect he may be separated from his wife and child. That is because on 9 July 2019 Mr Singh withdrew the partner visa application he previously lodged for his wife offshore in India. Mr Singh’s evidence is that his wife has since applied for another visa category[152] and currently holds a bridging visa. Mr Singh submits he does not want to leave his wife and child in Australia, claiming they have no home and his wife ‘cannot do anything to support herself and their child.’[153]

   [149] Ibid, 1035 [4]-[8]; 1067 [22]-[31].

   [150] Ibid, 1075 [11].

   [151] Ibid, 1073 [2].

   [152] Exhibit A1, 3, [18].

   [153] Ibid.

8. In the current circumstances, Mr Singh would be separated from his strongest sources of practical and emotional support if repatriated to India. He contends that knowledge of his objectionable conduct in Australia is known in India through media reporting, and although he could try and live elsewhere, he was concerned that wherever he went, members of his ethnic group may link him to his criminal conduct in Australia. He also submits that he has no family members or friendship groups to rely upon in re-establishing himself in India and his existing skillset is not easily transferrable to employment there.

   Tribunal findings: Extent of impediments if removed

9. Mr Singh is a relatively young man with no health-related impediments. He has well-developed English language skills, a tertiary qualification, and considerable work experience, including by running his own business for approximately two years. He also has years of experience in the security industry with good references from his most recent employers. Mr Singh’s evidence is that he is motivated to immediately return to remunerative work and there is no evidence he would be unable to do so in India.

10. Mr Singh grew up in India and has returned there on five occasions since arriving in Australia, most recently in 2018. The Tribunal can discern no language or cultural impediments to his repatriation. That being said, he would likely encounter impediments if returning permanently, including finding stable accommodation, employment, and re-establishing a social network. He would not be able to rely on the assistance of his parents who have passed, or his elderly grandparents. Mr Singh’s unchallenged evidence, which the Tribunal accepts, is that he would not have any extended family support to draw on because he has little contact with his two older siblings and is not particularly close to other relatives. If Mr Singh was unable to quickly re-establish himself, however, there is no evidence that he would not have access to the same healthcare and other support services available to any Indian citizen.

11. The impediments referred to by Mr Singh may be challenging, but cannot be considered insurmountable. The Tribunal places slight weight on this consideration in favour of not exercising the discretion to cancel Mr Singh’s visa.

    Other Considerations

12. No additional considerations were advanced by the parties and I have not identified any additional ‘other considerations’ relevant to the specific circumstances of the applicant’s case as provided for at cl 10(1) of the Direction.

    CONCLUSION

13. Because of the combined effects of ss 501(6)(a), 501(6)(e)(i), and 501(7)(c) of the Act, Mr Singh does not pass the character test. That is because he has been convicted of sexually based offences involving a child and sentenced to a 12 month term of imprisonment. In determining whether Mr Singh should forfeit the privilege of continuing to hold a visa, the primary and other considerations at Part A of the Direction have been applied to the specific circumstances of his case.

14. Mr Singh conceded at the present hearing that aspects of his previous evidence, including at the January 2019 hearing, were not truthful and constituted ‘covering up.’ That it has taken Mr Singh over five years to make the concessions he has, gives rise to concerns about previous expert assessments regarding his insight, remorse, and rehabilitation.

15. Mr Singh’s offending is objectively very serious and the community’s tolerance for any risk of future harm is considered very low given the seriousness of the potential harm. While the Tribunal accepts the expert evidence that Mr Singh’s risk of reoffending is low, it is nevertheless a real and unacceptable risk. The Tribunal has placed substantial weight on the primary consideration Protection of the Australian community in favour of exercising the discretion to cancel Mr Singh’s visa.

16. Having considered the deemed community expectations against the specific circumstances of Mr Singh’s case, including factors like the time he has spent in Australia and the positive contributions he has made, the Tribunal concludes the community would nevertheless expect Mr Singh’s visa to be cancelled. Substantial weight is placed on this primary consideration in favour of exercising the discretion to cancel his visa.

17. Notwithstanding the uncertainty surrounding the visa status of Mr Singh’s wife and child, and the extent to which his former brother-in-law will continue to perform a parental role for Mr Singh’s nephews, the Tribunal concludes it is in the Best interests of children in this matter for Mr Singh to remain in Australia. The Tribunal places substantial weight on this primary consideration in favour of not exercising the discretion to cancel his visa.

18. Of the other considerations relevant in this matter:

    (a)The Tribunal accepts that after living in Australia for almost 13 years, Mr Singh has strong ties to a close circle of family and friends who would be emotionally affected by his repatriation. The Tribunal places moderate weight on this consideration in favour of not exercising the discretion to cancel his visa.

    (b)In relation to Impact on Australian business interests, the available evidence about Mr Singh’s role as a security guard does not displace the general presumption that weight would only generally be given where visa cancellation significantly compromises the delivery of a major project, or delivery of an important service in Australia. That is clearly not the case and this consideration is given no weight.  

    (c)The impediments Mr Singh would face if repatriated to India can be characterised as challenging, but not insurmountable. The Tribunal places slight weight on this consideration in favour of not exercising the discretion to cancel Mr Singh’s visa.

19. Having examined the factors for and against visa cancellation individually and cumulatively, the weight of evidence supports a finding that the discretion under section 501(2) of the Act to cancel Mr Singh’s visa should be exercised. That is because the primary considerations ‘Protection of the Australian community’ and ‘Expectations of the Australian community’ weigh substantially against Mr Singh’s application. These outweigh the collective weight of the primary consideration ‘Best interests of minor children in Australia,’ which weighs substantially in Mr Singh’s favour, ‘Strength, nature and duration of ties,’ which weighs moderately in Mr Singh’s favour,  and ‘Extent of Impediments if removed,’ which weighs slightly in favour of Mr Singh.

    DECISION

20. It follows that the Tribunal affirms the decision under review.

I certify that the preceding 130 (one hundred and thirty) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

…………[sgd]……………….
Associate

Dated: 7 November 2019

Date of hearing:

28 October 2019

Advocates for the Applicant:

Mr Angel Aleksov

Solicitors for the Applicant:

Advocate for the Respondent:

Kerdo Legal

Mr Warren Mosley

Solicitors for the Respondent:

Australian Government Solicitor