Singh and Minister for Home Affairs (Migration)
[2018] AATA 2307
•13 July 2018
Singh and Minister for Home Affairs (Migration) [2018] AATA 2307 (13 July 2018)
Division:GENERAL DIVISION
File Number: 2018/2237
Re:Harneet Pal Singh
APPLICANT
Minister for Home AffairsAnd
RESPONDENT
DECISION
Tribunal:Senior Member D. J. Morris
Date:13 July 2018
Place:Melbourne
The Tribunal sets aside the decision under review and in substitution decides that the Applicant not be refused a Partner (Temporary)(Class UK) visa under section 501(1) of the Migration Act 1958.
........................[sgd]................................................
Senior Member D. J. Morris
Catchwords
MIGRATION – visa applicant – applicant fails character test under s 501(1) of Migration Act – sexual offending – one incident – no other relevant offending – discretion exercised on previous occasion not to cancel visa – risk of re-offending – impact on immediate family members – decision set aside
Legislation
Migration Act 1958 (Cth), s 499, 501
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)Sentencing Act 1991 (Vic)
Cases
Re Cao and Minister for Home Affairs [2018] AATA 1261
R v Singh [2010] VCC (Reasons for Sentence of Her Honour Judge Gaynor, 22 May 2008)
Secondary Materials
Direction No 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
Migration Amendment (Character and General Visa Cancellation) Bill 2014 – Explanatory Memorandum – House of Representatives – Circulated by authority of the Minister for Immigration and Border ProtectionREASONS FOR DECISION
Senior Member D. J. Morris
13 July 2018
Mr Harneet Pal Singh was born in 1983 in India and is a citizen of that country. He first came to Australia on 16 October 2006 as the holder of a Student (Temporary) (Subclass 573) visa. In December 2006 he was granted a Class TU Subclass 573 Higher Education Sector visa. In August 2012 Mr Singh applied for a Partner (Temporary) (Subclass 820) visa and a Partner (Permanent)(Subclass 801) visa based on his relationship with his now wife, Ms Olivia Gandolfo. He subsequently made a combined application for a Partner (Temporary)(Class UK) and a Partner (Residence)(Class BS) visa. On 23 March 2018 a delegate of the Minister for Home Affairs (the Minister) refused to grant this visa on character grounds under section 501(1) of the Migration Act 1958 (the Act).
The Applicant, through his legal representatives, advised the Department of Immigration and Border Protection (now the Department of Home Affairs) on 28 April 2016 that it was conceded that Mr Singh had a substantial criminal record as defined in section 501(7) of the Act and, as a result, that he does not pass the character test under section 501(6)(a) of the Act.
The hearing was held on 2 and 5 July 2018. Mr Sigh was represented by Mr Nicholas Poynder of counsel, instructed by Mr Erskine Rodan, OAM, of Erskine Rodan & Associates. The Respondent was represented by Ms Ashlee Briffa of the Australian Government Solicitor. Mr Singh gave evidence and was cross-examined. The Tribunal also heard evidence on behalf of the Applicant from eight other witnesses, including three professional witnesses.
On 2 July 2018 the Respondent tendered a volume of documents and supplementary documents under section 501 of the Act (GD1 documents), and on 5 July 2018 a volume of further supplementary documents (GD2 documents) which were taken into evidence. The Tribunal also had before it Statements of Facts, Issues and Contentions from both the Applicant and the Respondent.
ISSUES AND LEGISLATION
Section 501(1) of the Act provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Section 501(6) sets out the grounds for failing the character test. It states, in part:
(6)For the purposes of this section, a person does not pass the character test if:
(a)The person has a substantial criminal record (as defined by subsection (7); or…
Section 501(7) states, relevantly in this matter, in setting out what a substantial criminal record is:
(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…
Before the Tribunal was a National Police Certificate (GD1, p 45) dated 25 March 2017 which lists disclosable court outcomes recorded against the Applicant. It recorded two relevant offences relating to Mr Singh. On 22 May 2008 the County Court of Victoria imposed (1) a sentence of 9 months’ imprisonment for the offence of Indecent Act with child under 16, and (2) a sentence of 10 months’ imprisonment, 6 months concurrent, for the offence of Indecent Act with child under 16. Both offences were suspended for 2 years under (the then) section 27 of the Sentencing Act 1991 (Vic).
On the basis of the evidence in the National Police Certificate and the Reasons for Sentence given on 22 May 2008 by Her Honour Judge Gaynor in R v Singh [2010] VCC (GD47), the Tribunal is satisfied that Mr Singh has been sentenced to a term of imprisonment of 13 months. This term of imprisonment, being more than 12 months, constitutes a substantial criminal record under section 501(7)(c) of the Act. The Tribunal finds that the Applicant fails the character test by virtue of his substantial criminal record.
The sole issue before the Tribunal, therefore, is whether there is another reason why Mr Singh’s visa application should be refused under section 501(1) of the Act.
Direction No. 65
Section 499(1) of the Act provides that the Minister may give directions about the exercise of functions or powers under the Act. On 22 December 2014 the then Minister made Direction No. 65 (the Direction) and it came into operation on 23 December 2014.
The Tribunal must, under section 499(2A) of the Act, comply with the Direction in considering this matter. Paragraph 6.1 of the Direction states, in part:
6.1Objectives
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
…
(3)Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. 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. Relevantly, the Direction includes the following 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 vulnerable members of the community such as minors, 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 a 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.
In the case of deciding whether to refuse a non-citizen’s visa, the Direction requires a decision-maker to take into account considerations set out in Part B, which is divided into primary considerations and other considerations.
The primary considerations in Part B are set out in paragraph 11(1):
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian Community.
Other considerations set out in paragraph 12(1) of the Direction are:
(a)International non-refoulement obligations;
(b)Impact on family members; impact on victims;
(c)Impact on Australian business interests.
The Direction sets out that the primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (paragraphs 8(4) and 8(5)).
The offending
The sentencing remarks of Her Honour Judge Gaynor (GD1, p 47) set out the circumstances of the offences:
… The facts underlying this offending are as follows; the complainant [named] was aged 15 at the time of the offending. She attended the Charcoal Chicken Shop in [a suburb of Melbourne] in order to take a one hour employment trial for a part-time job, she being still at school. At the time you were employed at the chicken shop and at the time that [the complainant] was at these premises you were the only other person in the shop. You were then aged 23; you were eight years older than the girl you attacked. As I have said, she was a young school girl and this was the first time she was looking to get employment of any kind.
Soon after she began the one hour trial, you approached her as she was in the rear kitchen cleaning and asked her for a kiss and she said no. You then tried to kiss her, she turned her head away and said, “No, it’s not the sort of thing I do.” You then held her hand tightly, which made her feel uncomfortable. She tried to pull her hand free but you tightened your grip and only let go because your mobile phone rang which you answered.
Matters proceeded to the point where you had her pushed up against the fridge in the kitchen. You put your hand in to the small of her back, pulled her against you and pushed your penis up against her vagina. Both of you were clothed. This caused her a great deal of distress. These actions underlie Count 1 on the presentment.
[The complainant] tried to push you away and make it clear she did not want this to go on. You only stop what you were doing because a noise from the stove indicated some potatoes cooking on it needed to be attended to. You then came back and pushed her back against the fridge and told her to split her legs. She refused and you kicked them apart and again pushed your penis up against her vagina this time rubbing yourself backwards and forwards against her private parts. At the same time you held up two fingers and said, “Will I finger you?” She told you to stop, you tried to put your hands down her pants and she pushed them away, all the time you rubbing yourself against her private parts. Again this caused her a great deal of distress. She was a school girl at the time and was sexually inexperienced.
This was a disgraceful act on a defenceless young girl…
In written submissions, the Applicant accepted these points and that, in regard to the victim, the offending “devastated her and made her life distressing.” The Applicant also accepted that he was initially not cooperative with police and at first denied doing the actions of which the victim complained.
Her Honour also stated (GD1, p 50):
You are now 24 years of age. You told psychologist, Carla Lechner, whose report dated 12 May 2008 was tendered on the plea, that you grew up in a loving family. You came to Australia from India after completing schooling and an arts course at university and a computer course. You are therefore a young man who has had the benefit of a good family and an excellent education. Unlike many people in this court, you do not have the excuse of an impoverished upbringing, a lack of education or parents who are unkind…
It seems to me that you somehow believed that Australian women are generally sexually promiscuous and that therefore you were entitled to [behave] in this grossly disrespectful and predatory way. Let me assure you this is absolutely not the case and that you are extremely fortunate today that I do not send you to gaol.
The Applicant’s contentions
The Applicant in his written submissions accepts the facts which establish the offences referred to in the sentencing remarks of Judge Gaynor. The Applicant also accepted that his offending was extremely serious and deserving of a prison sentence, albeit wholly suspended because of his clean record before the offending. Counsel for Mr Singh accepted that the only real factor ameliorating the seriousness of the offending was the fact that, prior to his arrival in Australia, Mr Singh was, in the words of the sentencing Judge, “a law-abiding young man”.
Mr Poynder submitted that the offending, its serious nature accepted, cannot be characterised as anything but a single, isolated, one-off offence which was committed by a young man who had recently migrated to Australia, who was immature and culturally and sexually naïve. He submitted that Mr Singh is now 11 years older, at 35 years of age, is happily married and planning a family, and is ‘nothing like the raw young student who arrived in Australia in October 2006.’
The Respondent’s contentions
Ms Briffa drew the Tribunal’s attention to the principles set out at paragraph 6.2(1) of the Direction which make it clear 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.
In particular, Ms Briffa drew attention to paragraph 6.3(3) which states:
A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
Ms Briffa also quoted paragraph 6.3(4) which states:
In some circumstances, criminal offending or other serious 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.
The Respondent submitted that the nature of Mr Singh’s criminal offending is so serious that ‘any’ risk of similar conduct in the future is unacceptable.
2011 decision
On 11 November 2010 the Department notified Mr Singh that his visa may be cancelled on character grounds under section 501 of the Act. On 30 March 2011 the Department wrote to Mr Singh (GD2, p 468) stating:
After taking into account all relevant considerations, a delegate of the Minister has made a decision not to cancel your visa on character grounds on this occasion. Your current Student (Temporary)(Class TU) Subclass 573 – Higher Education Sector visa will continue to provide you with permission to remain in and re-enter Australia for the period specified in the visa.
Please note: this decision does not mean that your case cannot be considered again under s501 in the event of further criminal offending by you.
(Emboldening in the original.)
Before the hearing, solicitors for the Applicant made submissions that the exercise of the discretion to cancel the visa, having been undertaken in 2011 and determined in Mr Singh’s favour, for the Respondent to, some years later, revisit the matter and exercise the discretion differently was a case of ‘re-prosecuting’.
The Tribunal asked both Mr Poynder and Ms Briffa to make submissions on this point at the hearing. Mr Poynder advised that this argument would not be pressed by the Applicant.
For completeness, the Tribunal emphasises the following points, which it also made at the hearing. In 2014 the Parliament passed the Migration Amendment (Character and General Visa Cancellation) Act 2014. That Act inserted additional grounds on which a person will not pass the character test, (as set out in the Explanatory Memorandum tabled when the Bill was before the House of Representatives) that is when:
·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 charged without a conviction.
The Act thus has been explicitly amended since the 2011 decision not to cancel Mr Singh’s visa and, in addition, the Minister made a fresh Direction (Direction No. 65) as to how decision-makers should consider section 501 character visa refusals or cancellations. The Tribunal pointed out, and parties accepted, that each application for a visa is properly considered on its own merits by the Department, and freshly so. The solicitor for the Minister also mentioned that Mr Singh’s application for a partner visa, if granted, would provide him a pathway to permanent residence in Australia, which is also a relevant consideration.
The Respondent drew the attention of the Tribunal to the recent decision of Senior Member Pintos-Lopez in ReCao and Minister for Home Affairs [2018] AATA 1261, which considered the general question of whether a discretionary power can be considered again when a previous decision-maker has exercised it in a particular way. With respect, the Tribunal agrees with the learned Senior Member in his conclusion at [59]:
In relation to the Applicant’s third submission, if accepted, that submission would be entirely contrary to the requirement that decision-makers, once empowered by statute to make a decision, must exercise that power independently (not substituting the decision of another) and for a proper purpose, that is, by turning their mind to the decision before them. The Applicant’s third submission proposes, in effect, that a decision be made without consideration and application of the relevant facts that bear upon that decision. I reject that submission.
The Tribunal finds that the Respondent was not at all fettered, when Mr Singh applied for a partner visa, in reconsidering his character in terms of the law now in place. However, that conclusion does not mean that considerations taken into account by the Respondent in 2011 in terms of the Applicant’s offending history and prospects of re-offending are not relevant in this consideration.
Evidence of the Applicant
Mr Singh gave evidence at the hearing. He told the Tribunal he came to Australia to pursue a lifelong dream of becoming a chef. He gave evidence that he had completed a Bachelor of Arts degree in India and had undertaken an English course. He said that his parents live in Dubai, where his father works as a hydraulic mechanic.
He gave evidence that, before coming to Australia, he had had one girlfriend in India whom he had met at university. He said he had gone on three dates with her but their physical intimacy had not progressed beyond holding hands and kissing. Mr Singh said that relationship ended on friendly terms when he left to study in Australia.
In terms of the day the offences were committed, Mr Singh said he thought the victim didn’t mind when he kissed her. He said that she smiled at him which made him think she liked him. He conceded that she said ‘no’ when he went to kiss her. He conceded that he pushed his erection against her repeatedly as she said no, several times. He said that, at the time of the offending “I didn’t realise her age; it didn’t come into my mind.” He conceded that he knew it was wrong, at the time, for an adult to sexually touch a child, and he knew this before he came to Australia.
In terms of when he changed his plea to accept guilt, Mr Singh said that police were charging him with an attempt to commit rape. He was fearful that, if convicted of such an offence, it would lead to a long custodial sentence. After the charge was not pursued he pleaded guilty to two counts of indecent assault.
Mr Singh told the Tribunal that some years later he met Ms Olivia Gandolfo and they commenced a relationship in 2011, marrying in 2016. He said he told her about his offending history in 2012 and that he felt very ashamed about it. He then told Ms Gandolfo’s parents about the offending in 2016.
In terms of other offending, Mr Singh told the Tribunal that he had been convicted of a drink-driving offence sometime in 2011 or 2012 for which he was fined and his Driver Licence suspended for several months. He said that he attended a rehabilitative course designed for drink-driving offenders. Mr Singh said that he had committed no other offences in India or Australia. Apart from the National Police Certificate from Australia, the Tribunal had before it a police certificate from India which corroborated this evidence.
Evidence of Ms Olivia Gandolfo
Ms Gandolfo told the Tribunal she married Mr Singh in October 2016. Before the Tribunal was a letter dated 17 December 2017 (GD, p 133) in which she wrote:
I am aware that when Sunny [the Applicant] was 23 years of age, he committed a serious crime by making unwanted sexual advances towards a fifteen year old girl who was working with him in the chicken shop where Sunny was employed. I read the transcript to gain the full scope of what Sunny had done and I felt the disappointment when he confirmed it was true. When I look at Sunny now, I see him as bright, caring and reliable. He is very remorseful about what he did ten years ago when he was younger. I know it bothers him very much. Sunny has confirmed to me that he had never behaved in such a fashion towards any woman in India beforehand, or even towards anyone ever since in Australia.
Ms Gandolfo gave evidence about a chronic mental health condition of which she was first diagnosed in the final year of her secondary schooling in 2005. Ms Gandolfo said that should Mr Singh be denied permission to remain in Australia, it would be her intention to travel with him to India. She told the Tribunal that she had previously been prescribed Lithicarb (Lithium carbonate) for her condition but had a very serious incident of renal toxicity where her husband detected something was wrong and took her to hospital. Ms Gandolfo said one of the side-effects of Lithicarb is that persons taking it will often dehydrate, which can be problematic in hot climates.
Evidence of other family members
The Tribunal also heard evidence from Mrs Gillian Gandolfo, the Applicant’s mother-in-law, Mr Peter Gandolfo, the Applicant’s father-in-law, and Mr Simon Gandolfo, who is Mr Singh’s brother-in-law.
Mr Simon Gandolfo said he had not spoken to Mr Singh about the circumstances of his offending directly but became aware of the details reading documents in relation to preparing a statement in support of this hearing. He said that his comprehension of the nature of the offence did not influence the view he has about the Applicant. He took the view that character is formed over a whole life, and that one mistake, even a serious mistake, should not prevail over other positive conduct. He said that his view was that Mr Singh had learnt a very hard lesson from his conviction.
Mrs Gillian Gandolfo told the Tribunal that she became aware of Mr Singh’s offending several years ago. She said her daughter told her about the offences and that Mr Singh was very embarrassed about what had occurred. Mrs Gandolfo said she had since spoken directly to Mr Singh about the offending and understood that Mr Singh didn’t understand that the victim did not want him to keep going with his advances towards her. Mrs Gandolfo said she later knew, having read the transcripts, that the victim was not cooperative and that this was a serious offence.
Mr Peter Gandolfo said he had become aware of Mr Singh’s offending when he was assisting the Applicant in seeing a solicitor about a migration matter. He said his initial impression was that it was a minor infraction but on reading the judgement he no longer had that view and had concluded that it was a serious offence.
Mr Gandolfo said, in response to a direct question from the Tribunal, that his paramount concern, when he learned about the conviction, was whether there was a risk to his daughter and he had concluded on basis of the conduct of Mr Singh since he had commenced his relationship with his daughter, that Ms Gandolfo was ‘perfectly safe.’
Evidence from professional witnesses
Ms Carla Lechner, clinical and forensic psychologist
Ms Lechner gave evidence at the hearing. She stated that she had first seen Mr Singh in May 2008 and had completed a number of reports on him, in 2008, 2011, 2016, 2017 and 2018. These reports were before the Tribunal.
In her 2008 report, written before Mr Singh appeared before the Court to plead guilty to two counts of indecent assault, Ms Lechner wrote (GD, p 336):
I note that Mr. Singh has no prior criminal history and has been in no known further trouble since his apprehension… Mr. Singh, who emanates from the Punjabi region in India, had moved to Australia on a student visa, just two months before the incident. It would appear that he was still adjusting to cultural and social differences with a poor grasp of appropriate interaction between the sexes. He is immensely sorry for his actions and the distress he has caused the victim. Mr. Singh does not present with symptoms of an underlying psychological or psychiatric disorder, nor of a psychosexual disorder. His rehabilitation prospects are favourable, especially given the degree of insight that he has developed about his actions.
In her 2017 report (GD, p 147), Ms Lechner wrote:
There are no psychological instruments that can indicate that there is no risk of any repeat behaviour. However there are attitudinal and behavioural indicators that would indicate the risk is extremely low. These include i) the passage of time with no offending of any nature; ii) the good works conducted by Mr. Singh over the past eleven years both towards his wife and the broader community; iii) his insight in respect of both his offending and the adverse impact that his actions had on the victim and attendant remorse; iv) his lack of underlying psychological and psychiatric problems; and v) absence of a substance abuse problems.
Ms Lechner said her opinion was that Mr Singh committed the offences in 2007 because he was unfamiliar with gender roles and somewhat naïve. She said he had a constrained relationship with women at that time and the culture he grew up in did not allow him easily to get to know a person of the other sex.
Ms Lechner said she was aware of Mr Singh’s drink-driving offence. It was her view that the Applicant had matured over the last 10 years and has given thought to his offending behaviour. She formed the professional view that Mr Singh was regretful and ashamed. She said it was her view that Mr Singh had a good insight into the nature of his offending and the impact on the victim and was at ‘low risk’ of re-offending.
When asked specifically whether she thought Mr Singh was in denial about his past behaviour, Ms Lechner said she did not consider he was in denial. She stated that Mr Singh had a sense of shame and the close relationship he had developed with his (now) wife had ‘heightened his sense of disgust’ about what he had done in 2007.
Mr Tim Watson-Munro, forensic psychologist
Mr Watson-Munro gave evidence that he had examined the Applicant on 11 and 18 May 2018. His report dated 8 June 2018 was before the Tribunal (part of Exhibit A2, p 8). In that report, Mr Watson-Munro stated:
Mr Singh’s offending behaviour occurred at a highly vulnerable point in his life. Beyond the cultural and language nuances I have described, he was young and not fully familiarised with what is acceptable behaviour in Australia. Clearly, with the effluxion of time he has matured and reflected upon his past actions. At both times of examination he presented strong feelings of remorse concerning his behaviour and significantly, empathy for the victim. Taking all factors into account and notwithstanding the gravity of his past behaviour many years ago, I believe that the risk of him reoffending is very low.
In his evidence, Mr Watson-Munro said he had assessed ‘some 20,000 persons’ in his career and confirmed his written opinion that Mr Singh’s likelihood of re-offending was ‘very low’. He said that it was serious offending but there had been no re-offending and in the realm of sexual offences there generally tends to be a high degree of recidivism.
Mr Watson-Munro said evidence which reinforced his clinical opinion about the low risk of re-offending was that the crime was committed 10 years ago that Mr Singh had since maintained regular employment and that he had settled down in a committed relationship and was now married.
Mr Watson-Munro described Mr Singh’s offending as “grossly miscuing” in terms of acceptable behaviour, contributed to by his relative youth and immaturity. Mr Watson-Munro stated it was his view that the Applicant did not appreciate the gravamen of his behaviour at the time. Mr Watson-Munro told the Tribunal that, in his professional opinion, if rehabilitation is to be measured by likelihood of re-offending by a person, Mr Singh was ‘completely rehabilitated.’
Dr Christine Simons, consultant psychiatrist
Dr Simons gave evidence before the hearing. She told the Tribunal that she specialised in paediatric and adolescent psychiatry and had been treating Ms Olivia Gandolfo from the time of her first hospitalisation until October 2017 when she transferred her care to Dr John Cocks, who was an adult psychiatrist. While she had not treated Mr Singh, she had seen him a number of times in connexion with her care for Ms Gandolfo.
The Tribunal had several reports of Dr Simons before it (GD1, p 101 to 111). Dr Simons confirmed Ms Gandolfo’s evidence that she had been on Lithium carbonate and that this drug can cause renal failure and death in extreme circumstances if the taker becomes dehydrated. Dr Simons confirmed that Ms Gandolfo was not currently prescribed this medication but stated that her health was very vulnerable and the pathology of her condition meant she was particularly susceptible to stress. Dr Simons said that Mr Singh had been “remarkable support” for Ms Gandolfo and that such biological anchors were very important with the care of persons with mental health conditions of this nature.
Consideration of the Direction
Primary consideration - paragraph 11.1 Protection of the Australian community
The Direction requires the decision-maker to give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Tribunal takes a very dim view of any crimes against the person, and in particular sexual crimes committed, as in this case, against a minor. While the Tribunal notes that Mr Singh was open in his evidence about what occurred during the encounter at the shop where the offending took place, his suggestion that he thought either the victim was closer to his own age or, at least, much older is not plausible. Mr Singh knew that the victim had come to work at the shop on a work experience trial and that she was still at school. He at this time was 23 years of age; he had finished school and on his own evidence had studied for three years at university, gaining a Bachelor’s degree. He was not a callow youth. The victim was aged 15. I do not accept that he could have thought she was close to his own age.
The offending was rightly acknowledged by the Applicant and by Mr Poynder in his submissions as serious. Mr Singh did not cavil about that, but was also unable to articulate precisely why he acted the way he did. The most consistent view he has proffered to the Tribunal and in statements at the time is simply that the victim was pleasant towards him and smiled. Her friendly disposition should not have been interpreted as any invitation for him to force himself upon her, causing her significant distress. While I accept (from the evidence of Ms Lechner) that Mr Singh may have been naïve and perhaps unworldly at the time, he was, in my view, old enough and mature enough to know better.
The Direction requires me to consider the sentence imposed by the Court. Judge Gaynor imposed a 13-month cumulative sentence for both counts to which the Applicant pleaded guilty. However, Her Honour wholly suspended the sentences on the basis of Mr Singh having no prior criminal history. It is not necessary for the Tribunal to repeat the conclusions of the Judge; noting the concession by Mr Poynder that this was serious offending. However, it is relevant to my consideration that, with a range of sentencing options available to the sentencing judge, a suspended sentence was imposed, which could have been made substantive if Mr Singh re-offended.
When considering paragraph 11.1(f) and (g), it is relevant for the Tribunal to note that there was no frequency of offending, nor any trend towards increased seriousness. Although Mr Singh pleaded guilty to two counts, they occurred in the course of the same general incident. There Respondent did not contend, nor was there any evidence before the Tribunal, that there has been any other offending by Mr Singh since 2007 other than the drink-driving offence self-declared by the Applicant.
Paragraph 11.1.2 - The risk to the Australian community should the non-citizen commit further offences
The Respondent submitted that the Tribunal is entitled to be cautious of the re-offending risk given the seriousness of the Applicant’s conduct and cited, amongst other things, that he has not attended any rehabilitation programmes. The Respondent submitted that the Applicant ‘had only recently’ discussed his offending with his closest relations.
The Tribunal has carefully considered this matter and concludes, without diluting the serious nature of the 2007 offending, that the professional opinion of Mr Watson-Munro and Ms Lechner that there is a ‘very low risk’ of re-offending is supported by the objective evidence. The calculated risk that Her Honour took in deciding to impose a suspended sentence, on the basis that Mr Singh had no prior offences, has been justified by no evidence of any re-offending in the last 11 years. Mr Singh is more than 10 years older now. Most importantly, he has now been in a committed relationship with Ms Gandolfo for seven years, and they have been married for almost two years. Apart from his wife, on the evidence they gave to the Tribunal, Mr Singh has strong support from his parents-in-law and his brother-in-law. Ms Clayton, a solicitor and family friend who has known Ms Gandolfo for most of her life and the Applicant since he started his relationship with Ms Gandolfo also gave evidence in Mr Singh’s support.
Although there was no evidence of Mr Singh attending rehabilitation programmes, none was ordered by the Court. On the evidence of Victoria Police before the Tribunal (Exhibit A2, letter dated 22 February 2011), Mr Singh complied with all the annual reporting provisions and conditions of the Sex Offenders Register, on which he was mandatorily placed as the result of his conviction. He also gave evidence, which was not contested by the Respondent, that he attended a required course after his drink driving conviction.
On balance, the Tribunal concludes that this primary consideration weighs in favour of Mr Singh’s application for a partner visa being granted.
Primary consideration – Paragraph 11.2 Best interests of minor children in Australia affected by the decision
Although Ms Gandolfo gave evidence that she and the Applicant were hoping to start a family, there was no evidence before the Tribunal that any minor child is affected by the decision, so this consideration is not relevant.
Primary consideration – Paragraph 11.3 Expectations of the Australian Community
The Respondent reminded the Tribunal that the Direction makes clear that the Australian community expects non-citizens to obey Australian laws while in this country. Ms Briffa submitted that it was clear that the Australian community would expect a visa to be refused where the person had committed a sexual offence against a minor after being in her presence for only a short time.
The Tribunal considers that conclusion is reasonable; however, it is necessary to consider the particular circumstances in each case. It is relevant, taking into account the later change in the law, that the Respondent gave careful consideration in 2011 to exercising the discretion to cancel Mr Singh’s visa on the basis of his offending. At that time, that consideration was triggered because his crime was a ‘serious’ crime. Notwithstanding the Parliament has explicitly highlighted sexual crimes by the 2014 amendments to the Act, the Tribunal considers it is relevant that Mr Singh was permitted to stay in Australia at that time but formally warned that any re-offending might precipitate cancellation.
There has been no-reoffending (apart from the one drink-driving infraction) of any sort. On the evidence before the Tribunal the Applicant has gone on to be gainfully employed throughout the period until he was taken into immigration detention. There were several references from former employers before the Tribunal which attested to his good work practices, honesty and in one case that he had been promoted within the restaurant where he worked. Mr Singh has also married an Australian citizen. The consistent evidence, not only from his wife and her family but also her former treating specialist, is that he has been a loving and supportive partner for his wife, as well as helping her combat a difficult ongoing health challenge.
Ms Briffa submitted that the Tribunal should consider the crime so serious that any risk of future offending would be unacceptable, in terms of paragraph 6.3(4) of the Direction. While accepting that any risk of this sort of offending would not be tolerated by the community, the Tribunal is satisfied on all the evidence that this risk is extremely low. Members of the community, in command of the facts, would balance this extremely low risk against the clean record of Mr Singh for the last decade, his subsequent positive conduct in terms of employment and voluntary work, and his marriage to an Australian citizen. The Tribunal also considers that Ms Gandolfo’s medical conditions would be a factor the hypothetical community members would relevantly take into consideration, in regard to the effect deportation of Mr Singh would have upon her.
After carefully weighing all the evidence, on balance, the Tribunal concludes that this primary consideration weighs in favour of Mr Singh’s application for a partner visa being granted.
Paragraph 12.1 – other consideration – international non-refoulement obligations
There were no submissions from the Applicant or the Respondent that this other consideration is relevant. The Tribunal was not aware of any evidence that Mr Singh would be at risk of a specific type of harm if he were repatriated to India. The Tribunal therefore did not consider this consideration any further.
Paragraph 12.2 – other consideration – Impact on family members
The Direction requires the decision-maker to consider the impact of visa refusal on immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents or people who have the right to remain in Australia indefinitely.
Ms Briffa submitted that the only ‘immediate family member’ relevant to this consideration is Ms Olivia Gandolfo, the wife of Mr Singh. The Respondent conceded that the refusal of Mr Singh’s visa application would have a negative impact on his wife.
The Tribunal accepts Ms Gandolfo’s evidence that, should Mr Singh not be allowed to remain in Australia, she would follow him on his return to India. The Tribunal considers, in such an eventuality, the medical evidence given by Dr Simons is relevant, given the particularly bad experience Ms Gandolfo had in regard to Lithium carbonate and renal toxicity. While the Tribunal cannot foretell whether Ms Gandolfo would be likely to relapse and return to using this particular medication, Dr Simons confirmed that hot climate countries might lead a person with Ms Gandolfo’s condition to dehydrate and that the medical consequences in such a circumstance can be very serious, including life-threatening.
Putting to one side that medical scenario, which is necessarily speculative, there is no doubt that relocation of the Applicant and his wife to a country to which she has never been would be significantly disruptive, and traumatic for them both, especially Ms Gandolfo.
The Tribunal finds that this other consideration weighs in favour of Mr Singh’s application for a partner visa being granted.
Paragraph 12.3 – other consideration – Impact on victims
The victim of Mr Singh’s assault was not called as a witness in this review. The Respondent drew the Tribunal’s attention to the victim’s impact statement (GD1, p 311). In that statement the victim wrote in February 2007 that she had lost all sense of security and did not feel safe. She said she had pushed away her friends and family and had developed a lack of trust of people around her.
While it is difficult for the Tribunal to know what the victim’s views would be, 11 years on from the assault, it is reasonable to conclude that the offences had a significant impact on her and revisiting the matter would be a traumatic experience, especially given that she gave evidence in the Court proceedings, albeit by video-link from another room from the Applicant.
The Tribunal finds that this other consideration weighs against granting a partner visa to the Applicant.
Paragraph 12.4 – other consideration – Impact on Australian business interests
The parties did not put evidence before the Tribunal that this other consideration was relevant in this hearing. While Mr Singh has been consistently employed in the hospitality industry for most of the time he has been in Australia, the Tribunal considers that there would be no impact on the delivery of a major project or delivery of an important service in Australia, whether his application for a partner visa was granted or refused.
The Tribunal finds that this other consideration weights neither for nor against the Applicant.
CONCLUSION
The Direction provides guidance for decision-makers in consideration of whether there might be other reasons why a visa applicant, who has failed the character test, should nevertheless be granted a visa. However, the Tribunal is not constrained to only consider the framework of the Direction. It can consider any other relevant consideration.
The Tribunal notes that Ms Gandolfo wrote in her letter dated 17 December 2017 (GD1, p 135):
Since I met Sunny in August 2011, I can confirm that he has always treated me consistently with respect and patience in matters of a sexual nature or otherwise. To reiterate, he has never been violent or forceful with me, physically or emotionally. It’s just not his nature. We have been together and engaged in an ongoing committed relationship for nearly seven years and we have been supportive of each other the whole time.
The Tribunal concludes that Mr Singh’s offending in 2007 was serious and properly dealt with through the penalties available in the Australian court system. Mr Watson-Munro described it as a “gross miscuing”. The Tribunal considers the use of such a term significantly underestimates how fundamentally wrong the conduct was. . The Tribunal makes clear that Parliament’s emphasis on the seriousness of sexual crimes, in considerations of permission for non-citizens to remain in Australia, reflects that this sort of conduct is not to be tolerated.
However, on all the evidence before me, I conclude that this was indeed an isolated incident. Mr Singh complied with the conditions of his suspended sentence and with the requirements of the Sex Offenders Register. After this serious offending, which as the Judge said was a disgraceful act, he has committed no further similar crimes, nor indeed any crimes against the person or against property. There is not in this case any pattern of offending.
Mr Singh’s conduct has stood the test of time in the 11 years since his offending. His personal circumstances are vastly different from those that pertained in 2007. In particular, he is now in a stable marriage with an Australian citizen, has developed a network of support from her family and their friends, and has contributed positively to this country as an employee and in his community work.
The Tribunal must decide whether the decision under review was correct in law; and, where discretion is available to the decision-maker, whether that discretion was exercised in a preferable manner. Considering the Objectives in paragraph 6.1(2) of the Direction, where the discretion to refuse to grant a visa is enlivened, as it is in this case, the decision-maker must consider whether to exercise the discretion to refuse the visa given the specific circumstances applicable to Mr Singh. In this case, the Tribunal finds, after carefully balancing the provisions in the Direction and other relevant matters under the Act relating to the whole of the circumstances of Mr Singh, that the discretion was not exercised correctly by the original decision-maker. The Tribunal finds that he should not be refused a partner visa.
DECISION
The Tribunal sets aside the decision under review and in substitution decides that the Applicant not be refused a Partner (Temporary)(Class UK) visa under section 501(1) of the Migration Act 1958.
I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris
..........................[sgd]..............................................
Associate
Dated: 13 July 2018
Date(s) of hearing: 2 and 5 July 2018 Counsel for the Applicant: Mr Nicholas Poynder Solicitors for the Applicant: Erskine Rodan and Associates Solicitors for the Respondent: Ms Ashlee Briffa - Australian Government Solicitor
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