Singh and Minister for Home Affairs (Migration)
[2018] AATA 4302
•20 November 2018
Singh and Minister for Home Affairs (Migration) [2018] AATA 4302 (20 November 2018)
Division:GENERAL DIVISION
File Number(s): 2018/5067
Re:Paramjeet Singh
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:20 November 2018
Place:Sydney
The reviewable decision is affirmed.
...........................[sgd].............................................
Chris Puplick AM, Senior Member
CATCHWORDS
MIGRATION – revocation of visa cancellation – Ministerial Direction No. 65 applied – primary considerations considered – protection of the Australian community – best interests of minor children – expectations of the Australian community – other considerations – strength, nature and duration of ties – impact on victims – extent of impediments if removed – decision under review affirmed
LEGISLATION
Crimes (Sentencing and Procedures) Act 1999 (NSW)
Migration Act 1958 (Cth)
CASES
Abebe v Commonwealth [1999] HCA 14
Aciek and Minister for Home Affairs (Migration) [2018] AATA 2755
AFY18 v Minister for Home Affairs [2018] FCA 1566
Applicant in WAD 531/2016 v Minister for Immigration and Border Protection [2018] FCA 27
BFXK v Minister for Immigration and Border Protection [2018] AATA 886
Bushell v Repatriation Commission [1992] HCA 47
CHFQ and Minister for Home Affairs (Migration) (2018) AATA 3858
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47
Do and Minister for Immigration and Border Protection [2016] AATA 390
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Fu (Migration) [2018] AATA 732
G v Minister for Immigration and Border Protection [2018] FCA 1229
Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458
KDSP and Minister for Immigration and Border Protection [2017] AATA 2169
Khalil v Minister for Home Affairs [2018] FCA 1712
LMYW and Minister for Immigration and Border Protection (Migration) [2016] AATA 936
Minister for Immigration and Ethnic Affairs v Guo and Another [1997] 144 ALR 567
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13
Murphy and Minister for Immigration and Border Protection [2018] AATA 750
Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639
Re ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA
Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634
Re Gooley and Companies Auditors and Liquidators Disciplinary Board and Australian Securities and Investments Commission (2000) 62 ALD 472
QKVH and Minister for Home Affairs (Migration) [2018] AATA 1855
Rabino and Minister for Immigration and Border Protection [2016] AATA 999
Shi v Migration Agents Registration Authority [2008] HCA 31
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
SZJSS and Others v Minister for Immigration and Citizenship [2010] HCA 48
The Trustee for the Fuzzy Events Unit Trust and Minister for Home Affairs (Migration) [2018] AATA 3273
Williams v Minister for Immigration and Border Protection [2014] FCA 674
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Dennis Pearce, Administrative Appeals Tribunal (LexisNexis Butterworth, 4th edition, 2015)
Ministerial Direction No. 65: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA
REASONS FOR DECISION
Chris Puplick AM, Senior Member
20 November 2018
Mr Paramjeet Singh comes to this Tribunal to seek a review of a decision made by the Minister’s delegate on 28 August 2018 not to revoke the mandatory cancellation of Mr Singh’s visa.
BACKGROUND: PERSONAL
Mr Paramjeet Singh (the Applicant) was born on in India 1979. He is not sure exactly where he was born but thinks it was in New Delhi. His biological father appears to have abandoned the family when the Applicant was about 4 years of age and, at some stage, he moved to Australia. The Applicant was left in the care of his biological mother who, with several other children to care for, then placed him in the care of an aunt (presumably his father’s sister). This aunt then apparently contacted his father in Sydney and at the age of 8, he arrived in Australia into the care of his father and his new step-mother.
As a child Mr Singh learned to speak both Hindi and Punjabi. His father attested that he still speaks reasonable conversational Hindi. He was raised in a Sikh environment but upon arrival in Australia subsequently converted to Christianity.
BACKGROUND: VISA STATUS
On his arrival in Australia on 21 March 1988 Mr Singh was the holder of a Class UA visa and then held a series of visas culminating in his current Class BF Subclass 154 Transitional (Permanent) visa being issued on 25 June 1998.
On 6 April 2017 the Minister’s Delegate made a determination that Mr Singh’s visa should be cancelled under the provisions of section 501(3A) of the Migration Act 1958 (the Act).[1] Mr Singh was notified and signed an acknowledgement of this notification on 14 April 2017.[2] This section (see below) mandates that if a person has been sentenced to a term of imprisonment of 12 months or more, they are taken to have a “substantial criminal record” and thereupon it is mandatory for the Minister to cancel their visa.
[1] Section 501 – G Documents at [85].
[2] Ibid at [89].
On 5 May 2017 Mr Singh applied for a review of the cancellation decision and gave reasons why this decision should be revoked. The Department then sent further material to Mr Singh, namely details of his National Police Certificate and extracts from various sentencing remarks by a number of Magistrates.
As a result of consideration of these various representations, the Minister’s Delegate, on 28 August 2018 decided that the cancellation decision would not be revoked and Mr Singh was notified of this by letter dated 29 August 2018.[3] He then exercised his right of appeal to this Tribunal on 4 September 2018.
[3] Ibid at [9].
The Tribunal heard the matter on 8 and 9 November 2018, noting that under the provisions of section 500(6L) of the Act it was required to publish its decision on or before 21 November 2018, failing which the decision of the Minister stands.[4]
[4] See recent discussion of this section in Khalil v Minister for Home Affairs [2018] FCA 1712 per Colvin J.
It is important to set out the legislative framework within which such decisions are made and the basis upon which original decisions may be subject to review.
THE LEGISLATIVE SCHEME IN BRIEF
Section 501(3A) of the Act provides that the Minister must cancel a person’s visa in the following circumstances:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
... and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
This visa cancellation process is mandatory.
Section 501(6)(a) of the Act then provides that a person does not pass the character test if they have a “substantial criminal record”. Relevantly for this application, s 501(7)(c) provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
It can thus be seen clearly in relation to Mr Singh that the cancellation of his visa was an automatic process: he was serving a sentence of imprisonment and further, he cannot meet the required “character test” because that term of imprisonment was for a period of greater than twelve months.
Once the original decision has been made the Minister must notify the person and give them an opportunity to respond to it.
Section 501CA of the Act outlines the process:
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for making the original decision; and
(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
It is up to the individual concerned to place before the Minister whatever information they think relevant for the Minister’s consideration. Upon receipt of such representations, the provisions of sections 501CA(4) and (5) come into effect as follows:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
(5) If the Minister revokes the original decision, the original decision is taken not to have been made.
A decision on such an application is, in most circumstances, made by a Delegate of the Minister. In the Applicant’s case, this review decision resulted in a determination that the mandatory revocation should not be set aside.[5] This is the reviewable decision.
[5] Section 501 – G Documents at [9]-[21].
In coming to their decision, the Delegate noted that since the Applicant had, by definition, failed the character test, it was required that the Delegate consider whether there was “another reason” for the revocation to be set aside.
In doing so the Delegate followed the requirements set out in Direction No. 65: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (the Direction) (discussed below) in coming to their conclusion. This is because under s 499(1) of the Act the Minister may give written directions to a person or body having functions or powers under the Act if such directions concern the performance of those functions or the exercise of those powers. When such a direction has been given in accordance with that section, a person or body having those functions or powers under the Act must comply with such direction (s 499(2A) of the Act).
These provisions must be applied in relation to the specific criminal history of each individual whose visa is subject to potential cancellation.
MR SINGH’S CRIMINAL HISTORY
Mr Singh has an extensive criminal history which commenced in 1998[6] and continued until 2017.
[6] National Police Certificate, Section 501 – G Documents at [38].
He has been convicted of some 30 separate offences including numerous breaches of Apprehended Violence Orders (AVOs) and bail conditions; two counts of common assault; one count of assault occasioning actual bodily harm; several matters involving domestic violence; the unlawful possession of an air pistol and a laser pointer[7]; one count of credit card fraud[8] and two charges of attempting to influence a witness. There are also motor vehicle related charges, and charges for minor drug or controlled substances possession[9], having goods in custody suspected of being stolen, property damage, shoplifting[10] and failure to appear in court.[11]
[7] Tender Bundle Volume 2 at [1071]- [1074].
[8] Tender Bundle Volume 2 at [1057]-[1059].
[9] Ibid at [1266]- [1268].
[10] Ibid at [1293]- [1295].
[11] National Police Certificate, Section 501 – G Documents at pages 22-39. Respondent’s Statement of Facts, Issues and Contentions at [21] - [22].
Mr Singh has received a number of prison sentences, several of which were suspended on the basis of his entering into good behaviour bonds, culminating in a sentence of 13 months (reduced to 11 months on appeal) in October 2017.
The Tribunal was taken through all of the charges by the Respondent during the course of the hearing, but for its immediate purposes it needs to focus on a more limited number of these matters.
·Assaults: There are two relevant charges:
oMr Singh was found guilty of an unprovoked attack on a pharmacist who was present when a security guard apprehended and detained Mr Singh’s then partner for shoplifting.[12] In the ensuing confrontation, the record states that Mr Singh punched the pharmacist in the face and then kicked him when he fell to the ground. In evidence Mr Singh admits to the kicking but denies the punching.
[12] Tender Bundle, Volume 2 at pages [1084]-[1086].
oIn another incident Mr Singh assaulted the person with whom he was staying at the time, taking him in a headlock and repeatedly punching him.[13] In this instance Mr Singh asserts he was provoked by the victim who had locked him in the apartment and made his exit difficult.
[13] Ibid at pages [1092]-[1094].
·Damage Property: On the first of these occasions Mr Singh damaged a bus door when the driver would not stop the bus to allow his partner to board. There was a second act of “road rage” when, after a confrontation initiated by Mr Singh over access to a parking spot he verbally abused the other driver, intimidated him and threw his keys at the other driver’s window causing it to shatter.[14]
·Domestic violence: Police reports indicate that there have been a number of instances of “domestic related incidents” occurring between Mr Singh and his current partner Ms Danielle Makepeace. They also record that most of these have been reported as verbal incidents and there is evidence of some unwillingness of the part of Ms Makepeace to take things beyond the level of seeking an AVO for her own protection[15].
oIn September 2016 an incident occurred which appears to have involved Mr Singh giving Ms Makepeace what is described in the court records as a “bear hug”. The exact details of this incident are unclear and in her oral testimony Ms Makepeace claims not to be able to remember the incident or making a compliant. Nevertheless a compliant was made and the matter came before the court. In her sentencing remarks Magistrate noted that, at the relevant time, Ms Makepeace was then pregnant and that Mr Singh’s actions were in breach of two section 12 bonds[16] which were suspended sentences of twelve months for previous assault charges. In her remarks, Her Honour stated a belief that Mr Singh had “a prospect of rehabilitation” but she warned him against committing any acts of violence against Ms Makepeace and placed him on a bond to that effect.[17]
oDespite this, on 25 December 2016 Mr Singh and Ms Makepeace had a violent confrontation. It appears to have started in the afternoon with Ms Makepeace telling Mr Singh that she did not want him in the house any longer, This escalated into a verbal argument and then, as Ms Makepeace walked towards the door (apparently to show Mr Singh out) he threw a half empty can of Jim Beam and Coke at her – hitting her in the back and splattering the walls. Ms Makepeace ran out of the house pursued by Mr Singh. She called the police who attended and noted both the evidence of the splatter marks on the walls and Ms Makepeace’s statement that she had been hit by the thrown can. She told the Police she was fearful, especially for the safety of her unborn child. This incident was in clear breach of the previous AVO which the Police then sought to vary by imposing additional conditions.[18]
oThe very next day (26 December 2016) Mr Singh was back in the unit. This time he was asleep and when Ms Makepeace attempted to wake him to get him to report to the Police (as required by his bail conditions) he became aggressive, started to throw plates around the unit and then retrieved a mango from the fridge, hurling it at Ms Makepeace so that it hit her in the face. Once again the Police were called and on this occasion they apprehended Mr Singh and he was eventually brought before the Court where he was charged with counts of domestic violence and breaches of AVOs.[19] He was sentenced to imprisonment for an aggregate term of 13 months.
·Breaches of AVOs and Bail conditions: Mr Singh has consistently breached AVOs in his dealings with his partner Ms Makepeace. In some instances it appears that the breach was inadvertent[20] but in others it involved deliberately flouting a no-contact order by arranging for Ms Makepeace to be at the home of a friend where Mr Singh would call during his most recent period of incarceration. The Tribunal has also noted Mr Singh’s attempt to get his mother to assist in his subversion of the orders made. Mr Singh committed numerous breaches of his bail conditions, even after formal warnings were issued.[21]
·Attempting to influence witnesses: During telephone conversations with Ms Makepeace while he was in custody, Mr Singh sought to persuade her to change testimony which she had given to the Police and to make herself unavailable to receive subpoenas requiring her to appear in court to give evidence. These telephone conversations were recorded and the transcripts (in part) are before the Tribunal.[22] Not only is this a most serious offence (see below) but it displays a callous disregard for Ms Makepeace in attempting to suborn her into the commission of a serious offence for which she herself could be brought before the courts and punished. Mr Singh, at one stage in these conversations says: “I know you are doing me a world of favour here, even if you put it on yourself, you know what I mean?” Even when Ms Makepeace raises her concerns about this pressure saying, “this shit gets me into trouble with DOCS too like”, all Mr Singh says in reply is, “It’s not. It’s going to be a slap on the wrist for you, Dan (sic).”[23]
[14] Tender Bundle, Volume 2 at [799]-[803].
[15] Tender Bundle, Volume 1 at [325].
[16] Crimes (Sentencing and Procedures) Act 1999 (NSW).
[17] Section 501 – G Documents at [45]-[47].
[18] Tender Bundle, Volume 2 at [918]-[924].
[19] Idem.
[20] Section 501 – G Documents at [57]-[58].
[21] Tender Bundle, Volume 2 at [850]-[851].
[22] Tender Bundle, Volume 2 at [1002]-[1006].
[23] Ibid at [1003]-[1004].
Sentencing Magistrate comments
The Tribunal notes that on several occasions before his most recent matter before the court, sentencing magistrates had clearly warned Mr Singh of the potential consequences of further offending behaviour.
Magistrate Williams on 2 November 2015 noted that Mr Singh had breached two bonds in the process of coming before him and that in giving him another chance he needed to understand that further offences could land him in jail. Mr Singh acknowledged this saying, “I completely understand. I’ll keep my nose out of trouble.”[24]
[24] Section 501 – G Documents at [43].
Magistrate Greenwood, on 13 March 2017, noting some prospect for his rehabilitation, made the same point about observance of the AVO she was imposing. Her Honour said, “You are going to have to be very, very careful. Do you understand me?”. To this Mr Singh replied, “I do understand you completely, your Honour”.[25]
[25] Ibid at [47].
Magistrate Quinn, only three days later, on 16 March 2017, placed Mr Singh on a bond for 15 months in relation to his credit card fraud offence. Her Honour asked Mr Singh if he understood the terms of the bond. She said, “Do you understand that?” He replied, “Yes, your Honour”. She continued, “Any breach of this bond and you’ll be back in there.” He replied, “Loud and clear, your Honour.” Driving home the point, Her Honour, “Loud and clear?” Mr Singh in response “Yes”.[26]
[26] Ibid at [55].
Mr Singh’s understanding was obviously neither loud nor clear.
On 26 October 2017 Magistrate Keogh dealt with a combination of charges arising from the domestic assaults of December 2016, the repeated breaches of the AVO and the “act with intent to influence witness” charges. On that occasion Her Honour stated, noting that Mr Singh was on bail from criminal behaviour at the time of some of the offences:
“I note from looking at his records that he has breached a suspended sentence, I note also he has a history of violence so that is a consideration when it comes to the prospects of rehabilitation ….. That violence occurred at a time when he (sic) was an order which was to restrict his behaviour and provide that victim with protection, and clearly it did not….. I also accept generally that some of that contact was relatively benign but the justice offences are really serious, influencing a witness carries a period of seven years ….. He asked the victim in the manner to retract her evidence and then not attend court. They are of the type that as was acknowledged, that strike at the heart of the justice system and also at the protection afforded to persons in need of protection by orders such as apprehended violence orders and the community’s concerns they also strike at the community’s concerns about the protection of vulnerable victims in relationships which are unfortunately the subject of domestic violence.”[27]
[27] Ibid at [57]-[58].
In order to come within the purview of section 501(7)(c) of the Act, a person must be sentenced to a term of imprisonment for 12 months or more. Mr Singh’s relevant offences were the assault on the pharmacist and security guard which took place on 10 September 2015. On 2 November 2015 Magistrate Williams convicted Mr Singh of two offences of common assault for which His Honour imposed two 12 months term of imprisonment[28] which were then suspended under section 12 of the Crimes (Sentencing and Procedures) Act 1999 (NSW). His Honour then made it very clear to Mr Singh that, “…were you to commit any other offence over the next 12 months you’ll go to gaol”.[29] As noted above, Mr Singh indicated that he understood that.
[28] Under s 501(7A) of the Act the terms of concurrent sentences are each counted in determining the term of imprisonment. In this instance it would have been taken to be 24 months.
[29] Ibid at [43].
Nevertheless he reoffended and in March 2017 Magistrate Greenwood found that he had breached those bonds and she revoked them[30]. As a result Mr Singh was committed to jail to serve those sentences.
[30] Ibid at [45]. See also remarks before Magistrate Quinn at [48]-[49].
IMPACT OF A TRAUMATIC EVENT
At some time in 2015 Mr Singh witnessed a fatal stabbing which took place at a bus stop outside the apartments where he was living in Camperdown.[31] An unknown person was being assailed by a person wielding a knife who was stabbing the victim. Mr Singh intervened to protect the victim and was himself threated with a knife by the assailant. He had to defend himself to avoid serious injury. The victim of the assault subsequently died as a result of the attack. Mr Singh’s intervention was referred to as an act of “bravery” by sentencing Magistrate Keogh[32] who took those actions into account in her final sentence determination.
[31] There are not precise details of this incident before the Tribunal but it is referenced in Case Notes from the Department of Corrective Services dated 7 February 2017 (Tender Bundle at page 512) and in a psychological report from IHMS dated 5 March 2018 (Applicant’s Submission at Tab [2]).
[32] Section 501 – G Documents at [59].
On several occasions Mr Singh mentioned that this incident had left him traumatised and mentally disturbed. The Tribunal has no difficulty in accepting that this would have been a natural reaction to such a traumatic experience. The IHMS report states that Mr Singh “never sought counselling” for this experience and the Corrective Services report records that “he has never dealt with the psychological impact of this but acknowledges that this has contributed to him being quite unsettled in the last 12 months.” As with the sentencing magistrate, the Tribunal has borne the impact of this on Mr Singh in mind throughout its considerations of his application.
However the Tribunal must also note that Mr Singh had incurred numerous convictions well prior to this event, including several which involved unprovoked acts of violence against innocent persons.
Mr Singh also referred on a number of occasions to another traumatic event in his life when he found out that this then long-term partner had terminated a pregnancy entirely against his wishes.[33] This led to their separation and he has continued to harbour deep feelings about this particular event.
[33] Tender Bundle, Volume 2 at [1142].
EVIDENCE ON MR SINGH’S BEHALF
Mr Paramjeet Singh was unrepresented before the Tribunal which invited him to give a detailed opening statement setting out his reasons why the visa cancellation should be revoked.
In doing so, Mr Singh admitted to all of the offences in his National Police Record, although disputing many of the details of them. He indicated that he realised that he has a problem with anger management and that in previous years this had been compounded by the use of illicit drugs.
He told the Tribunal that he had started using marijuana at about age 19 and had been a “daily” user until about 2011. At that stage he started using methylamphetamine (in the form of “ice”) and that this had continued until about 2015.
He expressed himself as deeply sorry and remorseful and said that his time in detention, during which his daughter was born, had made him aware of the consequences of his misbehaviour and that while it had taken “a long, long time to learn” his lesson, he now had. He agreed that his past behaviour was unacceptable and told the Tribunal that he had completed the EQUIP programme in jail. He reported seeing a psychiatrist weekly and that this had helped him develop some insight into the nature of his behaviour and the need to change.
He recounted details of his childhood and the problems of separation from his family in India and arrival in Australia. He made the point to the Tribunal that the impact of his being a witness to, and being threatened during, the commissioning of a murder had had a lasting effect on him and while he realised he should have sought counselling for PTSD he had “left it too late”.
He told the Tribunal that he wanted to prove that, “I’m not just a waste of time – I still have good in me” and that in future there was “no room for carelessness or recklessness or for any further offending”. Above all he stressed his commitment to his young daughter and that removal of Australia would be “a sentence for life” and undo everything he had so far achieved by way of personal rehabilitation.
When the Respondent took Mr Singh through his record of criminal offences, in almost all cases, while not disputing the fact that some sort of incident took place, he provided an alternative version of the actual narrative of events:
oIn relation to the incident where he damaged a bus door he maintained that the party at fault was the bus driver for failing to allow his partner to board the bus;
oIn relation to the road rage incident he maintained that the party at fault was the other driver who verbally provoked him when he confronted him about the contested parking spot;
oIn relation to the assault on the pharmacist he insisted that he had not struck the pharmacist, only kicked him, and that, in relation to the security guard he only hit him with an open palm not a closed fist;
oIn relation to the assault upon the person with whom he was sharing a flat, his version was that this resulted from him being locked in an apartment when the victim somehow refused him access to a set of keys after stealing the applicant’s money;
oIn relation to the Christmas Day assault on his partner, his version was that it was she who provoked the incident and that it was she who first started throwing plates at him; his reactions were in response;
oIn relation to some of the breaches of AVOs he insists that this was at the initiation of his partner and that, in any case, she was not supportive of the AVOs and so there was no reason to observe them; and
oIn relation to the attempts to suborn his partner to be a false witness he insists that this was suggested to him by a third party in the detention centre whose voice can be heard on one of the recordings.[34]
[34] Tender Bundle, Volume 2 at [1003].
The Tribunal heard from two witnesses called by Mr Singh.
Mr Jatinder Pal Singh Natha is the Applicant’s father. He had supplied the Tribunal with both a Statutory Declaration[35] and a letter of support for his son[36]. It was indicated that neither of these documents had been written by Mr Jatinder Singh who has very poor eyesight and difficulties both reading and writing. Nevertheless, the purport of them was established in oral evidence to the effect that Mr Jatinder Singh is very supportive of his son and clearly wishes him to remain in Australia. He told the Tribunal that he and his wife (Nargis) are in ill-health and that they would like their son to be close to them and provide support.
[35] Section 51 – G Documents at [90]-[93].
[36] Applicant’s Submission at Tab [1], dated 9 October 2018.
At the same time it was clear that Mr Jatinder Singh and his wife have support from their daughter, the Applicant’s half-sister. Mr Singh has a seriously estranged relationship with this half-sister[37] who, as was confirmed by Mr Jatinder Singh refuses to bring her children to the family home when Mr Singh is there.[38]
[37] Nazleen, the daughter of his step-mother.
[38] Tender Bundle, Volume 2 at page at [1167].
In his oral testimony Mr Jatinder Singh confirmed that he was close to and loved his son and that he and his wife would be willing for their son to live with them, on a temporary basis, were he to be released from custody. He confirmed that he and his wife had been able to give some support to Ms Makepeace and the couple’s daughter and had taken their grandchild to visit Mr Paramjeet Singh in custody. Their increasing ill-health now prevents this. He finally confirmed that he and Mr Paramjeet Singh often converse in Hindi, although the latter’s command of the language is adequate rather than totally fluent.
There are some difficulties dealing with Mr Jatinder’s Singh’s testimony.
In the first place it is clear that he has a very limited understanding or knowledge of the full extent of his son’s criminal record, especially the acts of violence and drug use.
Secondly his testimony is somewhat at odds with previous statements made by him and his wife to officers of the Department of Corrective Services as recently as March 2017. At that time he expressed serious concerns about the prospect of his son coming to live with the family on release from custody. His wife is recorded as outlining that: “he and his father do not get along and on many occasions Paramjeet has assaulted him”.[39] The report continues:
“Both his parents were not comfortable to have Paramjeet reside with them as they were uncertain how his behaviour will be. They also note that during recent phone conversations with them Paramjeet has been putting pressure on them to say yes to anything we (community corrections) say.”[40]
[39] Idem.
[40] Idem.
His mother is also reported as saying that “she says yes to her son residing there because she is scared of what he will say to her if she says no”. She further says that Mr Singh “blames her for his being in gaol”.[41]
[41] Tender Bundle, Volume 2 at [1169].
A month before that, the same Department, through their Community Corrections Officer reported a conversation with Mr Paramjeet’s step-mother about him, to the effect that:
“She detailed that he has an issue with his anger and at times has been very aggressive and abusive towards her and her husband. No regular contact as he tends to want their support when he needs money.”[42]
[42] Tender Bundle, Volume 1 at [514].
There is a reference to Mr Paramjeet Singh’s parents reporting a “history of abusive and aggressive behaviour inflicted by Mr Singh” against his parents in the Intensive Corrections Order Assessment Report as far back as 7 August 1979.[43]
[43] Tender Bundle, Volume 2 at [1034].
Mr Jatinder Singh, under cross-examination agreed that there had been numerous altercations with his son, but he went on the describe these as mainly in the form of shouting and verbal abuse. When pressed on the issue of “assault” he denied this but agreed that there might have been some “pushing” involved.
Corroborative evidence in relation to the existence of difficulties between Mr Paramjeet Singh and his “father, stepmother and ½ sister” leading to the issuing of an AVO (since withdrawn) and an admission by Mr Paramjeet Singh of “violent confrontations” appears in another report from an officer of the Department of Corrective Services dated 17 August 2005.[44]
[44] Tender Bundle, Volume 2 at [765].
The Tribunal understand the degree to which Mr Jatinder Singh, especially as he and his wife become more frail and dependent, is anxious to have his son as a support person in their lives. It also understands the natural desire of any parent to do the best for their children.
However the Tribunal is more inclined to place greater weight on the information given to the Department of Corrective Services officers in 2017 as representing the true nature of the family relationship.
It also notes that in that same interview Nargis told the Department that Paramjeet had asked his mother to make contact with Mr Makepeace on his behalf at a time when he was prohibited from making such contact under the then term of an AVO. Mr Paramjeet’s willingness to engage this mother in activity which was unlawful, that being unbeknown to her, bespeaks of a manipulative relationship in which Mr Paramjeet Singh is prepared to put other people at risk in order to serve his own ends. It is not the characteristic of a loving son.
Ms Danielle Makepeace is the mother of Mr Singh’s daughter (who was born in 2017). She and Mr Singh have been in what might best be described as a “rocky” relationship. Their relationship started some four years ago although they are now separated and Ms Makepeace is the primary carer for their child.
The gravamen of her testimony was to the effect that she wished Mr Singh to stay in Australia so that he could be a financial and emotional support for their daughter. To this extent she had voluntarily (and successfully) sought a variation of the current AVO to allow Mr Singh to have authorised contact with her and her daughter.
In this respect she stated that were Mr Singh to remain in Australia their own relationship would be one where they would, to use her exact words, “just see what happens.” Regarding their future together she seemed unsure as to what might occur and while Mr Singh asked her if she had forgiven and pardoned him – she agreed that she had – but he did not ask her whether she loved him and wanted to spend her life with him, and she did not volunteer any evidence to this effect.
She did say that he had “changed”, although when pressed to say how, she was somewhat vague, saying that he was just “a better person”.
The Tribunal has detailed above Mr Singh’s record in terms of his physical assaults on Ms Makepeace and his attempts to suborn her to give false testimony, to retract evidence and to make herself unavailable for court proceedings. These matters are incontrovertible and, as indicated, the Tribunal has before it the transcripts of relevant parts of the recorded conversations as well as the Fact Sheets from the Police.
In terms of the Christmas 2016 assault her version differed markedly from that recorded by the Police based upon the information which she had provided to them at the time and which led to the issuing of an AVO.[45] That evidence, which led to Mr Singh’s conviction and sentencing was clear but in her testimony to the Tribunal Ms Makepeace, in effect, sought to retract or contradict her earlier testimony. Clear acts of physical aggression against her were re-characterised as “just verbal abuse”.
[45] Tender Bundle, Volume 1 at [346]-[352].
Similarly when asked about Mr Singh’s attempts to get her to change her testimony or swear a false statutory declaration, she at first denied that such conversations had occurred and then said that she could not remember them. When asked what she thought was going on in these conversations, including those where she had expressed concerns about how “this shit gets me into trouble with DOCS too, like” her response was that she was, “not too sure” about any of it.
As a witness Ms Makepeace was unreliable. Again, as with Mr Jatinder Singh it is understandable that she wishes Mr Paramjeet Singh to remain in Australia in order to help with the upbringing of their daughter, but her testimony as to any other aspect of Mr Singh’s application cannot be accorded any serious weight.
A letter of support was submitted by Mr Sanjay Bhosale, a businessman and President of the ACT chapter of the Australia-India Business Council. He writes that:
“PJ’s current situation is an unfortunate result of his struggles to fit into mainstream Australian society as a Sikh youngster who migrated from Punjab, India at the age of eight. As a child he was exposed to tremendous violence and upheaval during the troubles in Punjab. PJ is basically a good person at heart but he struggles with anger management issues.”
The Tribunal in no way seeks to disparage Mr Bhosale’s representations but it is unable to give them any weight. At no stage was any evidence presented about Mr Singh’s childhood background related to violence in the Punjab.
It is a matter of fact that the government-led assaults on the Sikh Golden Temple in Amritsar led in turn to the assassination of Prime Minister Indira Gandhi by her Sikh bodyguards in October 1984. Mr Singh would have been about 5 years of age at the time but there is nothing to suggest that these events had any impact upon him. Upon his arrival in Australia Mr Singh does not suggest that he had any major difficulties acculturating to life in this country and in any event, at some stage, he converted to Christianity.
Mr Singh submitted a Psychologist’s Report prepared by International Health and Medical Services (IHMS) who are contracted to provide medical services in Australia’s immigration detention centres. The report consists of a number of separate entries made over the period from 5 March to 24 September 2018.[46] The reports cover issues such as Mr Singh’s experience with and reaction to the traumatic event described above; his concerns about the termination of his previous partner’s pregnancy; his participation in anger management courses while in custody; his depression and problems sleeping and his preference to address his issues without the use of medication. He was assessed as being of “low risk” of self-harm or harm to others. One report specifically refers to Mr Singh saying that “he wishes to make change to his behaviour – he wants to be a good father – regards this as important to him as he has already lost one child.”[47] The report does not contain any detailed analysis of Mr Singh’s attitude towards issues of violence nor his appreciation of his responsibilities to obey the law and conform to accepted social norms in that regard. It does not address directly any of the fundamental issues which are before the Tribunal for determination.
[46] Applicant’s Submission at Tab [2].
[47] Ibid, report of 5 March 2018.
Once all the evidence is before the Tribunal it is then required to consider it with reference both to the provisions of the Act and with Ministerial Direction 65 (the Direction).
MINISTERIAL DIRECTION 65: STATUS
Under section 499 of the Act, the Minister is authorised to issue Directions to decision-makers to guide them, by statement of government policy, as to how they should evaluate various matters which are outlined in the Act and which must be considered by decision-makers.
Ministerial Direction 65 was made on 22 December 2014. The Tribunal is required to take it into account and give it full and proper regard when making its own independent decision on a request for revocation of a visa cancellation. Failure to take proper account of the Direction will lead the Tribunal into jurisdictional error.
[34] Authorities in this Court have expressly accepted that a failure to comply with ministerial directions made under s 499 can constitute a jurisdictional error.
[35] Several Full Court decisions have treated this particular Direction as not only binding on the Tribunal, but also as the source of potential jurisdictional errors for non-compliance.[48]
[48] Williams v Minister for Immigration and Border Protection [2014] FCA 674 per Mortimer J.
However this is not entirely a black and white or automatic process.
As far back as 1979 the Full Federal Court held that:
“If the original decision maker has properly paid regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant factor for the tribunal to take into account in reviewing the decision. On the other hand, the tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision was, on the material before the tribunal, the correct and preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.”[49]
[49] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at [420].
In a further review of the same case, the then President of this Tribunal made it clear in relation to Ministerial discretion (as expressed in policy directions) that in terms of the role of the decision-maker at the Tribunal, “His discretion cannot be so truncated by a policy as to preclude consideration of the merits of a specified class of cases.”[50]
[50] Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634 at 640.
In 1981 the Full Federal Court warned that:
“On the other hand, the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.”[51]
[51] Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639 per Lockhart J at 651-652. See also Frank J at 642 and Deane J at 646.
In 1985 the Tribunal noted:
“Policy is not law. A statement of policy is not a prescription of binding criteria. By conferring a discretion upon the decision-maker, the law requires that all matters relevant to the exercise of the discretion shall be taken into account”.[52]
[52] Re ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306 at [21].
In 1994 the Full Federal Court opined:
“it is right to say that the tribunal which operates as part of a continuum of administrative decision-making, is not bound by government policy although it may take such policy into account in the exercise of the statutory power or discretion which is under review.”[53]
[53] Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13 at 28.
Most recently, Mortimer J, after a comprehensive review of the authorities on this matter concluded (some years after her decision in Williams):
“…policy is not to become a rule of law. The statute is the expression of the rule of law. Executive policy cannot, in form or more importantly in substance, be perceived by decision-makers as, or operate as, a rule.”[54]
[54] G v Minister for Immigration and Border Protection [2018] FCA 1229 at [210].
This Tribunal draws heavily upon the recent decision by Senior Member P W Taylor SC in Aciek,[55] where the relationship between Ministerial Direction 65 and the statutory responsibilities of the Tribunal is stated with utmost clarity:
7. Direction no. 65 does not derogate from the Tribunal’s duty to reach the preferable decision in the particular case before it. The guidance it provides is intended to assist in reaching such a decision:- Uelese v Minister for Immigration and Border Protection [2016] FCA 348 at [50] per Robertson J. As the Minister submitted in that case
[35]... the Direction does not determine the law or alter the content of the law. Rather, it provides guidance and direction to decision-makers. Decision-makers are required to comply with the Direction but the Direction does not itself create, vary or remove rights, privileges or obligations. In particular, the Direction does not impose any limit on the matters that may be taken into account; properly construed, it does not stipulate the weight to be given to those matters in each and every case; and does not make relevant (in a mandatory sense) any consideration that is not already relevant by reason of the text and context of s 501 of the Migration Act.
[55] Aciek and Minister for Home Affairs (Migration) [2018] AATA 2755.
The first decision which the Tribunal must make is to decide whether or not any applicant passes of fails the “character test” established in the legislation. Where a person has been sentenced to a term of imprisonment of 12 months or more, the answer to this question is automatically to the effect that they fail the character test. This is not a matter of discretion; it is a matter of law. Hence, Mr Singh fails the test.
Having so determined the provisions of Mistrial Direction 65 are enlivened.
In doing so it is important to note that the Tribunal must approach this matter de novo.
THE TRIBUNAL IN THE SHOES OF THE DECISION-MAKER
The Tribunal is established as a merits-review body. Its responsibility is to review administrative decisions (made under legislation conferring such powers upon it) taking into account the merits of the case in question, the need to reach the correct and preferable decision in each individual case and to promote the objectives of good government.[56]
[56] Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307.
It is important to state the general principles upon which the Tribunal must proceed in its own independent decision making. These may be summarised as including:
“The Tribunal’s duty is to make the correct and preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.”[57]
“The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether the decision was the correct and preferable one on the material before the Tribunal.”[58]
“The decision under review, as distinct from the reasons for it, must be given no weight by the AAT. The decision is to be reviewed for the correct and preferable decision reached: the original decision itself cannot influence the AAT in reaching its conclusion.”[59]
“….in reviewing the Board’s decision, we must make the decision afresh and are not limited to a consideration of whether the Board’s decision was open on the evidence. We are not limited to the evidence before the Board.”[60]
“The review undertaken by the Tribunal was in the nature of a de novo review on the merits. For that purpose, the Tribunal stood in the shoes of the original decision-maker (here the maker of the non-revocation decision) and was so obliged to apply the criteria governing the exercise of the power in s 501 CA of the Act at the time of its own decision.”[61]
“Davies J acknowledged that regard might be had to the decision of the primary decision-maker as part of the “material before the Tribunal”…….But ultimately, it was for the Tribunal to reach its own decision upon the relevant material, including any new, fresh, additional or different material that had been received by the Tribunal as relevant to its decision. In effect, this was no more than a consequence of the Tribunal’s obligation to conduct a true merits review.”[62]
“…. the A.A.T is an administrative decision-maker, under a duty arrive at the correct or preferable decision in the case before it according to the material before it.”[63]
[57] Re Drake and Minister for Immigration and Ethnic Affairs(No.2) [1979] 2 ALD 634 at 640.
[58] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at page 11.
[59] Dennis Pearce, Administrative Appeals Tribunal (LexisNexis Butterworth, 4th edition, 2015) at page 301 citing Collins v Minister for Immigration and Ethnic Affairs (1981) 4 ALD 198; Commonwealth v (1985) 8 ALD 554 and Re KLGL and QCYY Australian Prudential Regulation Authority [2008] AATA 452.
[60] Re Gooley and Companies Auditors and Liquidators Disciplinary Board and Australian Securities and Investments Commission (2000) 62 ALD 472 at [72].
[61] AFY18 v Minister for Home Affairs [2018] FCA 1566 at [9] per Charlesworth J.
[62] Shi v Migration Agents Registration Authority [2008] HCA 31 at 37 per Kirby J.
[63] Bushell v Repatriation Commission [1992] HCA 47 at [3] per Brennan J.
It is thus clear that although the original decision-maker has found Mr Singh not to be a person of good character and to have determined that he fails the legislated character test – as indeed they had no capacity to do otherwise - in this instance that decision leads to the consideration of whether or not there is “another reason” why the visa cancellation should be revoked. The original decision-maker has determined that no such reason exists, so it is now for the Tribunal to make its own decision in that regard.
It is up to the Tribunal to assess the material before it and to assign it the weight and value it thinks appropriate. This view is clearly stated in the authorities:
“The weighing of various pieces of evidence is a matter for the Tribunal.”[64]
“In the end the criticisms made by the applicant of the Tribunal’s reasoning are criticisms if the factual findings it made and are criticisms that fasten upon the weight that the Tribunal attributed to various pieces of information that it had available for consideration. But what weight the Tribunal gave to those various pieces of information was for it to say.”[65]
[64] SZJSS and Others v Minister for Immigration and Citizenship [2010] HCA 48: unanimous decision of the High Court.
[65] Abebe v Commonwealth [1999] HCA 14 [197] per Gummow and Hayne JJ.
MINISTERIAL DIRECTION 65: PROVISIONS – PRIMARY CONSIDERATIONS
The Tribunal returns to the provisions of Ministerial Direction 65. The Direction establishes various matters for consideration, describing some as “primary considerations” and others as “other considerations”.
Three “primary conditions” related to revocation requests are set out as:
·Protection of the Australian community;
·Best interests of minor children in Australia affected by the decision; and
·Expectations of the Australian community.[66]
[66] Part 13.
The protection of the Australian community requires a decision-maker to have regard to both the likelihood of the applicant reoffending if permitted to remain in Australia and the potential adverse consequences of any such reoffending. There are two principal elements for consideration, the nature and seriousness of the conduct under question and the risk to the Australian community should the applicant reoffend.
Part 13.1.1 of the Direction makes it clear that in assessing the nature and seriousness of the offences regard should be had to such matters (inter alia) as whether the offences involved violence or sexual violence and whether they were committed against vulnerable people. The decision-maker should also consider the frequency of offences and the sentences imposed together with the cumulative effect of repeated offending and whether they demonstrate an increase in their level of seriousness.
On all of these criteria Mr Singh’s offences rate as serious. They were numerous and repeated. They frequently involved acts of violence. They were perpetrated against vulnerable people (his pregnant partner). Mr Singh was frequently before the courts where he received numerous sentences. His offences commenced with minor infringements starting with motor vehicle offences, moving onto road rage offences, petty acts of drug possession and shoplifting but graduating to violence against strangers and then violence against his domestic partner.
Part 13.1.2 of the Direction directs the Tribunal’s attention to the risk of reoffending and the consequences of such reoffending for the Australian community.
There is guidance for this Tribunal in determining what constitutes “risk” in this context. This was provided by Deputy President Forgie in QKVH[67] as follows:
The word “risk” is not defined but its ordinary meanings when used as a noun, as it is in s 501(6)(d)(i), include the following which is relevant:
“... 1 the chance or possibility of suffering loss, injury, damage, etc; ..
Therefore, having regard only to the ordinary meaning of the word “risk”, the issue under s 501(6)(d)(i) becomes whether there is a chance or possibility of QKVH’s engaging in criminal conduct in Australia. The word “risk” must, however, be interpreted in its context and that is the context of the Migration Act and so in the context of who may, and may not, come to and/or remain in Australia. In that context, the word “risk” cannot be seen to mean simply a “chance or possibility” of a person’s engaging in criminal conduct in Australia for to do so would not take account of the realities of everyday life. Take, for example, members of the Australian community who drive a motor vehicle. Even if they have never done so before, there is a chance or possibility that any one of them may have a lapse in concentration or judgment and commit an offence against the road laws of a type for which a conviction may be imposed. That chance or possibility will, of course, be greater if the person has a history of traffic offences so that the risk of his or her doing so increases.
[67] QKVH and Minister for Home Affairs (Migration) [2018] AATA 1855 at [13].
The assessment of risk must take into account all matters before the Tribunal. In Fu (Migration) [2018] AATA 732, the Tribunal, in assessing a student visa cancellation, stated in circumstances which I believe to be properly analogous:
“As noted in MZAJA v Minister for Immigration and Anor [2017] FCCA 448 at [15], the task of the Tribunal in respect of s 116(1)(e) is to assess the risk to the community based on all of the information available to the Tribunal.”[68]
[68] Fu (Migration) [2018] AATA 732 (3 April 2018) per Member Jan Redfern at [30].
The Tribunal notes that Direction 65 itself directs attention to what it states to be “an unacceptable” risk.[69] Clearly then, government policy recognises that there are some risks that are “acceptable”. Indeed the guiding Annex to the Direction refers to a “more than minimal or remote” chance before the provisions of the section are enlivened.[70]
[69] The Direction at 13.1.2 (1).
[70] The Direction at Annex A “Application of the Character Test”, section 6(2) “Risk in regard to future conduct (section 501(6)(d)).
The Tribunal respectfully agrees with the comments of Senior Member M J McGrowdie in KDSP v Minister for Immigration and Border Protection to the effect, in relation to admittedly a different category of offence that: “The Australian community could not be said to be intolerant of any risk”.[71]
[71] KDSP and Minister for Immigration and Border Protection [2017] AATA 2169 at [36].
The Tribunal must rely upon the evidence before it in assessing the specific risk of re-offending. Siopis J expressed this as follows:
“It was a matter for the Tribunal to determine the evidence upon which it would place weight in assessing that question.”[72]
[72] Applicant in WAD 531/2016 v Minister for Immigration and Border Protection [2018] FCA 27 at [133].
When determining the likelihood of future offending, reliance is most often placed upon past experiences. This reasoning is supported by the authority of the High Court which in Guo opined:
The course of the future is not predictable, but a degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. ….. Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require finding as to what occurred in the past because what has occurred in the past is likely to be the most reliable guide to what will happen in the future.[73]
[73] Minister for Immigration and Ethnic Affairs v Guo and Another [1997] 144 ALR 567 at 578-579.
In February 2017 a Community Corrections Officer of the Department of Corrective Services assessed Mr Singh to determine whether he would be a suitable candidate for an Intensive Corrections Order when he came before the Newtown Local Court. In her professional assessment, Mr Singh constituted a “medium/high” risk of reoffending.[74] In oral testimony Mr Singh disputed this on the basis that this assessment was undertaken “at an early stage of my jail term’ and hence failed to take into account the lessons which he claims to have learned in jail which would mitigate against his reoffending.
[74] Tender Bundle Volume 2 at [1279].
However this finding is broadly consistent with a much earlier assessment of May 2016 prepared by a similar officer for the same court which recommended the withdrawal of the supervision component of his then bond on the basis that Mr Singh’s “response toward supervision is considered inconsistent …. and it would not appear that he is committed to the supervision and programs provided by Community Services”.[75] This bespeaks of an attitude of unwillingness to subject himself to the degree of supervision which might militate effectively against the prospects of reoffending.
[75] Ibid at [1099].
Much of Mr Singh’s argument that he would not reoffend is predicated upon his relationship with his partner and family which he does not wish to put at risk.
The Tribunal is unpersuaded by this line of argument. If anything, what Mr Singh’s record of his relationship with partners and family demonstrates is a cynical disregard for their wellbeing and a degree of manipulative cynicism when dealing with them.
The Tribunal has outlined in some detail the comments made by members of his family, in particular his step-mother which show that he sought to manipulate them into helping him breach an AVO and to give false information to the Department of Corrective Services about their willingness to have him reside with them. He asserts that he loves and respects them. They report that he has often been violent towards them and only seems to seek their support when he needs money. He now says that he worries about their fragility and health. They report that until recently he had little or nothing to do with them on that score and that is because of their ill health that they are worried about his being in proximity. The Tribunal has commented above on the oral testimony of his father and the difficulties which the Tribunal has with it.
Similarly Mr Singh sought to suborn and compromise his current partner into committing a serious offence of giving false evidence of hiding from the courts. He did so by pressuring her to take possible blame or responsibility on herself, despite her expressed concerns about how this might impact upon her relationship with DOCS and hence the possible welfare of their unborn child.
In relation to previous partners, he was involved with one in the matter of shoplifting from and assaulting the pharmacist in Newtown, then blaming her mental health condition for the incident.[76] Another, in seeking a termination of her pregnancy is blamed for his own mental health problems. His step-mother has reported that he blames her for his being in jail.
[76] Ibid at [1144].
The conclusion reached by the Tribunal, after consideration of all the evidence is that the assessment made by the Department of Corrective Services is correct and that Mr Singh poses a medium to high risk of reoffending. The risk is certainly well above any concept of being low to minimal.
The Tribunal is not persuaded that he has genuinely learned his lesson from a whole series of previous warnings by judicial officers and by being given multiple chances to refrain from reoffending – none of which he has taken.
Moreover the risk to the community is higher because of the nature of Mr Singh’s offences. They have been, and might well again be, acts of violence. They result from his inability to manage his bouts of anger. They have been perpetrated against vulnerable persons and, over the course of his offending behaviour, they have increased in seriousness.
The best interests of minor children: Mr Singh has a minor daughter who was born in May 2017 while Mr Singh was in prison. He expresses his deep love and attachment to this child although he has not been able, to this date, to play any significant role in her care or upbringing and his contact with her has been limited.[77] There is no way of knowing whether or not this minor child is genuinely aware of Mr Singh or his presence in her life, although both he and Ms Makepeace suggest that she is. There is no doubt that separation from this child would result in her not having a meaningful relationship with her father, especially as it is clear from her evidence that Ms Makepeace has no intention to remove herself to India. It does not appear that Ms Makepeace has other family-based support in her current circumstances although she has the friendship of a Mr Jesse Jenson[78] and is receiving support (including accommodation) from DOCS.
[77] Tender Bundle, Volume 1 at [534].
[78] Tender Bundle, Volume 2 at [938]-[939].
The Tribunal bears in mind that Mr Singh’s record includes acts of domestic violence against the minor child’s mother and attempts to involve her in the giving of false evidence, nevertheless, the Tribunal accepts that it would be in the best interests of the minor child were Mr Singh to be allowed to remain in Australia and it counts this consideration to be in his favour.
The expectations of the Australian community: Dealing with the expectations of the Australian community is always a difficult task for the Tribunal. Community expectations change over time and they vary according to the circumstances of each case. The Tribunal expects that they would be more favourable to people who have learned from previous experiences of offending and have made serious attempts to get their lives back together and to take active steps for their own rehabilitation. On the other hand they would be less inclined to view favourably those who have committed particular types of offences, persisted in offending behaviour and failed to take control of their own lives and act responsibly.
The Direction itself gives only minimal guidance in the interpretation or application of this consideration. It states:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because of the nature of the character concerns or offences are such that the Australian community would expect the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.”[79]
[79] Direction 65 at 13.3.
This statement is replete with qualifications such as “may be appropriate”, or “unacceptable” risk and clearly leaves significant discretion in the hands of the decision-maker.
In cases such as YNQY and BFXK the Federal Court and this Tribunal have noted that this criterion starts off from a position of being, ipso facto and indeed, by intention, unfavourable to the applicant.[80] However as was stated in BFXK the degree of this unfavourability is to be assessed in relation to the individual circumstances of each applicant and each case.
[80] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76]; BFXK v Minister for Immigration and Border Protection [2018] AATA 886 at [126].
Deputy President Block outlined one of the inherent difficulties with this part of the Direction, saying it:
“is always difficult to interpret. It assumes (incorrectly) that there is an Australian community which thinks as one. The supporters of One Nation would have one view as regards immigration, and there is of course a very large diametrically opposed body of opinion in Australia. I construe this reference as being correctly made to middle-of-the-road reasonable members of the Australian community who do not hold extreme views one way or another. And I think that there is a further limiting factor and that is that one must import into that Australian community, knowledge of the evidence before me. ….. I believe that the Australian community, so informed, would expect me to interpret the Direction in a humane fashion.”[81]
[81] Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458.
Similarly Deputy President McCabe has stated:
“The third primary consideration is complicated by the fact the Direction does not give a clear indication of how a decision-maker might divine the expectations of the Australian community.”[82]
[82] LMYW and Minister for Immigration and Border Protection (Migration) [2016] AATA 936 at [54].
In his concluding remarks in this matter, the Deputy President, after reviewing the evidence of the contrition and rehabilitation of the applicant in question stated:
“In all the circumstances, I am not satisfied this consideration weighs against the exercise of the discretion. Indeed, it may actually weigh in favour of the exercise of the discretion.”[83]
[83] Ibid at [58].
In Murphy v Minister for Immigration and Border Protection[84], Senior Member P W Taylor SC wrote:
[58] When cl 13.3 is read as a whole, and applied in a context where all relevant considerations required to be taken into account (see cl 8(1)), it does point to the likelihood, but it does not dictate an inflexible conclusion, that community expectation will always call for non-revocation. Nor is to be taken as elevating community expectation to the status of a determinative consideration. It remains as a primary consideration, to which appropriate weight must be given. But what constitutes appropriate weight, and whether that weight is a determinative factor in the exercise of the revocation discretion, will depend on the totality of the relevant circumstances.”
[84] Murphy and Minister for Immigration and Border Protection [2018] AATA 750.
The Tribunal notes Deputy President Forgie’s comments in Rabino and Minister for Immigration and Border Protection that “the Principles are directed to whether the Australian community is prepared to give the person another opportunity to remain in Australia”.[85] Although this is a reference to the tests imposed in citizenship matters, it remains apposite when considering the way in which the Ministerial Directions in visa refusal cases should be considered.
[85] Rabino and Minister for Immigration and Border Protection [2016] AATA 999 at [68].
Deputy President McCabe in Do and Minister for Immigration and Border Protection[86] reflected on the question of second chances when he said that:
A decision-maker is, to some extent, required to guess at the community’s expectations… As I begin my deliberations, I assume the Australian community would be fair-minded and mature… The community would certainly not be vengeful… after all: we are a nation built on second chances.
[86] Do and Minister for Immigration and Border Protection [2016] AATA 390 at [23].
In The Trustee for the Fuzzy Events Unit Trust, Deputy President Justice Stevenson held that it was appropriate to give a “second chance” to an applicant, in large part, “in recognition (of) his life changes” [87]since he had been first convicted. The Deputy President noted that the efforts of the Applicant to change his behaviour and to seek to make a positive contribution to the community following his conviction was something which helped earn him the right to a second chance.
[87] The Trustee for the Fuzzy Events Unit Trust and Minister for Home Affairs (Migration) [2018] AATA 3273 at [65].
Clearly it is thus possible to regard the expectations of the Australian community as covering a broad spectrum of possibilities, from strongly against the claims of an applicant to strongly sympathetic. This will vary with the circumstances in each individual case and it is these which the Tribunal must take into account.
In Mr Singh’s case the Tribunal believes that the community would be unsympathetic to his application. It believes that the community would regard his actions as unacceptable and inexcusable and that it would seek protection from the significant likelihood of his reoffending. It would not accept that a non-citizen with Mr Singh’s record should be accorded the privilege of remaining in Australia.
The Tribunal concludes that this consideration weighs significantly against Mr Singh.
MINISTERIAL DIRECTION 65 : PROVISIONS - OTHER CONSIDERATIONS
The Tribunal must then go on to consider what are outlined in the Direction as “other” considerations. As Colvin J has made clear in Suleiman that, “To treat the other considerations as secondary irrespective of its character in this particular case does not conform to the language of Direction 65.”[88] His Honour made it clear that the weight of “other” considerations could, in appropriate circumstances, overbear the weight of the primary considerations to the advantage of the Applicant[89].
[88] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [28].
[89] Ibid at [26].
This was made more explicit in CFHQ where Deputy President Redfern, referencing Suleiman stated:
“… factors set out in Direction 65 as ‘other considerations’ should be given appropriate weight, which may, in some cases, outweigh the primary considerations.”[90]
[90] CHFQ and Minister for Home Affairs (Migration) (2018) AATA 3858 at [88].
The “other” consideration in the Direction, in relation to revocation request[91] are:
·International non-refoulement obligations
·Strength, nature and duration of ties
·Impact on Australian business interests
·Impact on victims
·Extent of impediments if removed.
[91] Direction 65 section 14.
In Mr Singh’s case there do not appear to be any issues arising as far as international non-refoulement obligations or any impacts on Australian business interests to consider. The Tribunal has noted comments from Mr Boshale and determined that they are not relevant in this context.
It may be said that Ms Makepeace is the only victim whose interests should be considered by the Tribunal and it is noted that she is supportive of Mr Singh remaining in Australia. However in her evidence it was clear that her principal concern was to secure support (emotional and financial) for her daughter and that, although she made it clear that she did not fear Mr Singh, she did not necessarily expect that they would have a close and continuing intimate relationship. Her expression was “we’ll just see what happens.”
In relation to these three other considerations, they count neither for not against Mr Singh in this application.
In considering Mr Singh’s ties to Australia it should be accepted that he has lived here for almost all of his life, having arrived as a very young person and from a background of some trauma and disadvantage. While in Australia he has been a productive member of the workforce and has made some contribution to supporting the work of charities such as the Red Cross.[92] On the other hand the Tribunal is reminded that Mr Singh started his offending when he first became a young adult and this offending behaviour has continued.
[92] Section 501 – G Documents at [81].
It is also true that Mr Sing’s immediate family members and his partner and minor child are resident in Australia (all are citizens) and that there is no chance of any of them leaving and relocating to India.
Taking all these things together, the Tribunal would conclude that this consideration must be counted, to some degree, in Mr Singh’s favour.
There is no doubt that there would be substantial impediments if Mr Singh were removed to India. Although it is evident that he has some capacity in conversational Hindi there is no doubt that it might take some time for him to regain a higher level of fluency. His work experience and qualifications should not preclude him from obtaining employment and he is a relatively young and apparently quite fit individual. He is not unaware of or unfamiliar with aspects of Indian life and culture, although he states that he has “no recollection of the culture and fear depression of being sent to a foreign land where I know nothing about or anyone”.[93] He would of course he separated from his minor daughter and his parents and although there are means of maintaining contact and communication these are always far less satisfactory than being able to have physical, direct and regular personal contact.
[93] Ibid at [82].
Evaluation of all aspects of this consideration would lead the Tribunal to conclude that this must weigh in Mr Singh’s favour and that this weight is more than just minimal.
After consideration of all the matters specified in Direction 65 the Tribunal is required to make a “calculus” (to use the term of the Federal Court[94]) as to the outcome.
[94] Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47 at [52].
There are clearly elements which weigh both in favour of and against Mr Singh’s application.
Positively, in favour, these are:
·The best interests of the minor child,
·The strength, nature and duration of toes to Australia,
·The extent of impediments if removed from Australia.
Negatively, against, these are:
·The protection of the Australian community,
·The expectations of the Australian community.
Having sought to weigh the various considerations for and against Mr Singh’s application, the Tribunal is strongly of the opinion that the negative factors outweigh substantially the positive factors and that the balance must be found to lie against the application.
DECISION
The reviewable decision is affirmed.
I certify that the preceding 143 (one hundred and forty -three) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
...........................[sgd].............................................
Associate
Dated: 20 November 2018
Date(s) of hearing: 8 and 9 November 2018 Applicant: In person Solicitors for the Respondent: Ms M Donald, Sparke Helmore Lawyers
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