Singh and Minister for Immigration and Border Protection
[2014] AATA 37
•29 January 2014
[2014] AATA 37
Division General Administrative Division File Number
2013/5824
Re
Amandeep Singh
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Date 29 January 2014 Place Perth The decision under review is affirmed.
..............................[sgd].....................................
S D Hotop
Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – bridging visa – refusal to grant – applicant a citizen of India – applicant in Australia from 2008 – applicant convicted of offences committed in Australia in 2009 and sentenced to 28 months' imprisonment in 2011 – applicant does not pass character test – discretion to refuse visa – protection of Australian community favours refusal of visa – no weight given to best interests of child – other considerations – impact of visa refusal on applicant – protection of Australian community outweighs other considerations – preferable decision is that visa be refused – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 501(1)
Direction no 55 – Visa refusal and cancellation under s 501
REASONS FOR DECISION
Deputy President S D Hotop
29 January 2014
Introduction
Amandeep Singh (“the applicant”) has applied to the Tribunal for review of a decision of a delegate of the Minister for Immigration and Border Protection (“the respondent”), dated 6 November 2013, refusing to grant his application for a Bridging E (Class WE) (Subclass 050) visa (“the visa”). The delegate’s decision was made under s 501(1) of the Migration Act 1958 (Cth) (“the Act”).
The Factual Background
The applicant was born in July 1988 in India and is a citizen of India.
The applicant first arrived in Australia on 8 January 2008 on a student visa. His student visa was, however, cancelled on 24 February 2010 on the ground that he did not comply with a condition of that visa. On 14 September 2010 that decision was affirmed by the Migration Review Tribunal.
The applicant has not departed Australia since his arrival on 8 January 2008.
In April 2011, in the District Court of Western Australia, the applicant was convicted, after trial by jury, of the following offences:
·aggravated burglary and commit offence in dwelling;
·assault occasioning bodily harm;
and, on 7 June 2011, he was sentenced to imprisonment for 28 months for the former offence, and to imprisonment for 12 months (to be served concurrently) for the latter offence. The commencement of the sentence was backdated to 1 April 2011 when he was taken into custody. He was made eligible for parole.
The applicant was released from prison on 31 July 2013 (having served the full period of his sentence of 28 months’ imprisonment) and, on that date, he applied for the visa.
On 6 November 2013 a delegate of the respondent, pursuant to s 501(1) of the Act, refused to grant the visa to the applicant.
The Relevant Legislation
Section 501(1) of the Act provides:
“ 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.”
The “character test” is defined in s 501(6) of the Act which specifies various alternative circumstances in which a person does not pass the “character test” within the meaning of that section. In the present case, the relevant circumstance is that specified in para (a) of s 501(6), namely, “the person has a substantial criminal record (as defined by subsection (7))”. Section 501(7) specifies five alternative circumstances in which, for the purposes of the “character test”, a person has a “substantial criminal record”. In the present case, the relevant circumstance is that specified in para (c) of s 501(7), namely, “the person has been sentenced to a term of imprisonment of 12 months or more”.
The Ministerial Direction
In reviewing the delegate’s decision in this matter pursuant to s 500 of the Act, the Tribunal is required, by s 499(2A) of the Act, to comply with a direction given by the respondent under s 499(1) of the Act. The relevant direction, as presently in force, namely, Direction no 55 – Visa refusal and cancellation under s 501 (“the Direction”), was given by the respondent on 28 July 2012 and commenced on 1 September 2012.
Section 1 of the Direction includes (in para 6) a Preamble which contains (inter alia) “general guidance” for decision-makers acting under s 501 of the Act in the following terms:
“ 6.2 General Guidance
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
…
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizens [sic] visa under section 501. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B of this Direction.”
The principles referred to in para 6.2 are set out in para 6.3 as follows:
“ 6.3 Principles
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)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.
(3)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(4)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.
(5)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.
(6)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.”
Section 2 of the Direction, which is headed “Exercising the Discretion”, commences as follows:
“ 7 How to exercise the discretion
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
(a)must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; and
(b)is required to determine whether the risk of future harm by a non-citizen is unacceptable. This requires a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community.
8Taking the relevant considerations into account
(1) Decision-makers must take into account the primary and other considerations relevant to the individual case, noting that there are differing considerations for visa holders and visa applicants as articulated in Parts A and B. Separating the considerations for visa holders and visa applicants recognises that persons holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3) Both primary and other considerations may weigh in favour of, or against, refusal or cancellation of the visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.”
Part B (comprising paras 11 and 12) refers to the “primary considerations” and “other considerations” which, where relevant, must be taken into account by a decision-maker in deciding whether to refuse a visa under s 501(1) of the Act. Those considerations will be relevantly referred to in detail later in these reasons.
The Evidence
The evidence before the Tribunal comprised:
·the “G Documents” (G1–G20, pp 1–117) lodged by the respondent on 3 December 2013 (Exhibit R1);
·the applicant’s Statement of Facts and Contentions dated 3 January 2014 (Exhibit A1);
·the applicant’s Personal Statement dated 3 January 2014 (Exhibit A2);
·copy of a letter from Prisoners Review Board, Western Australia to the applicant dated 3 May 2012 (Exhibit R2); and
·the oral evidence of the applicant.
The Sentencing Remarks of Stone DCJ
When sentencing the applicant on 7 June 2011 for the two offences referred to in paragraph 5 above, Stone DCJ stated as follows:
“ …
Mr Amandeep Singh and Mr [VS], you were convicted after trial by jury in April 2011 of aggravated burglary. In relation to count 1 on the indictment, the aggravated burglary, Mr Amandeep Singh was convicted of all the circumstances of aggravation whilst Mr [VS] was convicted of all the circumstances of aggravation except the circumstance of aggravation that, immediately before the commission of the offence, they knew or ought to have known that there was another person in the place.
Mr Amandeep Singh, you were also convicted of count 2, assault occasioning bodily harm upon Mr [MB], whilst Mr [VS] was acquitted of that charge. You were both acquitted of count 3, unlawful wounding of Mr [IS].
Briefly, the facts were that Mr [MB] had lent Mr Amandeep Singh about $1,000, and Mr [MB] was alleged to have taken and then kept Mr Amandeep Singh’s passport as security. Mr [MB] had previously lived with you, Mr Amandeep Singh.
At about 1 am on 21 December 2009, Mr Amandeep Singh led a group comprising Mr [VS] and Mr [ASS] and two others to Mr [MB’s] unit in Maylands to collect his passport. Mr [MB] and the other three occupants of the unit, Mr [IS], Mr [B] and Mr [JS], were asleep at the time. Mr [MB] awoke to knocking at the wooden front door, and when he went to answer the door he recognised Mr Amandeep Singh’s voice. Mr Amandeep Singh was saying, ‘Open the door. I have to talk to you.’
When he opened the wooden door, he recognised Mr Amandeep Singh. He saw Mr Amandeep Singh was holding open the security door, and there were a number of men behind him. Mr [MB] tried to shut the front door, and he was joined by Mr [IS]. The men outside were trying to push their way in, and wedged an object in the doorway. The men outside, including Mr Amandeep Singh, Mr [VS] and Mr [ASS], pushed their way into the unit. The front door was damaged.
In the early stages of the incident inside the unit, Mr [MB] was beaten by some of the intruders in the living room area, and this was the assault offence the subject matter of count 1. It was dark inside the living room area, and Mr [MB] could not identify his attackers.
Although Mr [MB] testified he was beaten with weapons, which he described as a baseball bat, a cricket bat or an iron rod, having regard to the nature of his injuries I am not satisfied beyond reasonable doubt that the intruders had brought weapons with them to the unit and they were armed with a baseball bat or a cricket bat.
Although I accept that some object was wedged in the doorway and Mr [MB] was beaten with a rod of some description, about which I will say more in a moment, I would have expected him to have sustained far more severe injuries if Mr [MB] was beaten about the head and body with a baseball bat and/or a cricket bat.
Mr [MB] could not identify any of his attackers in the living room area. Mr [MB] said he saw Mr Amandeep Singh inside the unit, but he could not say what Mr Amandeep Singh was doing. Mr [MB] was chased into a rear bedroom and beaten by some of the intruders, and this was the assault offence the subject matter of count 2.
Mr [JS] was awoken by noise in the kitchen, and he heard someone calling his name, ... A group of men hit his bedroom door, and it was flung open. When he switched on the light, he saw men beating Mr [MB] in his bedroom. Mr [JS] testified that half the group of men who were present when Mr [MB] was being beaten in his bedroom were saying, ‘Stop’, half were saying, ‘Beat him. Beat him.’
…
Mr [MB] testified that he was beaten with a baseball bat, a cricket bat or an iron rod in the living room area, but he was not asked what was used to beat him in the bedroom. Mr [JS], Mr [IS] and Mr [B] testified that Mr [MB] was beaten in the bedroom with a rod or bar.
In his interview with police, Mr Amandeep Singh confirmed there was an object used as a weapon, although he claimed it was used on him. He told the police he was hit in the back by Mr [MB] with something fairly hard. The object was made of iron or steel. He was fighting Mr [MB] with his hands. He was kicking and punching Mr [MB], and that was how Mr [MB] got the injuries ‘all over the legs’.
He was in the hallway fighting Mr [MB]. He did not fight anyone else. In the rear bedroom, someone was hitting him in the back, and Mr [MB] was in front fighting him. They hit each other. Mr [MB] ended up on a table, and he kicked Mr [MB] in anger.
…
It is highly likely that the object used as a wedge in the doorway and as the rod to hit Mr [MB] in the living room area and in the rear bedroom was the other half of the broom handle, but I am unable to make that finding beyond reasonable doubt. However, I am satisfied beyond reasonable doubt on the totality of the evidence that a rod of some description was used by Mr Amandeep Singh to inflict Mr [MB’s] injuries.
I’m unsure as to how or when Mr Amandeep Singh obtained the rod, and accordingly I will sentence Mr Amandeep Singh on the basis that he did not take the rod as a weapon to the unit, and nor did he enter the unit with it. But at some stage whilst in the unit, he used the rod as a weapon to assault Mr [MB] and inflict the bodily harm the subject matter of count 2.
The bodily harm suffered by Mr [MB] was a swollen left wrist and abrasions to his shin. The welt marks seen in the photographs of Mr [MB’s] injuries are consistent with having been struck with a rod, in my view.
I’m satisfied beyond reasonable doubt that Mr Amandeep Singh orchestrated the forcible entry of the unit and assault upon Mr [MB]. He brought along Mr [VS] and Mr [ASS] and others as muscle. I’m also satisfied beyond reasonable doubt that Mr [VS] went along as backup to assist Mr Amandeep Singh in his grievance with Mr [MB]. The timing was deliberate. It was to take the occupants of the unit by surprise.
The gravity and seriousness of your offending is reflected in the statutory maximum penalties for the offences committed. The statutory maximum penalty for an offence of aggravated burglary is 20 years’ imprisonment. The statutory maximum penalty for an offence of assault occasioning bodily harm is five years’ imprisonment.
The aggravating factors, in my view, are that you went there in the early hours of the morning, a time when people are usually at home asleep. There was a risk of confrontation and harm being done to someone by going to their home, whether it’s the occupants or the intruders. There was a risk of a confrontation and a risk of harm. Another aggravating factor was the number of persons involved. In your group, there were five. The occupants of the unit numbered four.
Another aggravating feature of this is that it was a person’s home, and a person is entitled to feel safe in their own home at night and not have people knocking on the door and pushing in the door because they have some grievance.
Another aggravating feature of this is that a weapon was used to inflict injuries. This applies to Mr Amandeep Singh, and I’ve already made my comments about that. I accept that that weapon was picked up inside the unit, and I’m sentencing on that basis.
I turn now to your personal circumstances. Mr Amandeep Singh, you’re almost 23. You were born in India. You came to Australia in 2008. Family background is detailed in the pre-sentence report. I’m not going to go back over that.
I understand that your justice visa expired on 11 April this year. You left school year 12. You completed a Certificate in Mechanical Engineering. In Western Australia you undertook a business management course, which you didn’t complete. You worked as a welder here in Australia, and since mid-2010 you worked full time in employment as a courier.
You don’t appear to have any health issues, but you’ve got anger management issues that you need to address, and you appear to recognise that.
I’ve received from [counsel] a reference from your employer, …, which indicate [sic] that you’re friendly, you’re a good worker and you are reliable.
This is the first time you’ve been convicted of any offence. You’ve been in custody since the conclusion of the trial, and there was a period of time before that. So any custodial sentence, if there was one to be imposed, could be backdated to 1 April.
…
With respect to mitigating factors, mitigating factors are factors which, in the court’s opinion, decrease the culpability of the offender or would decrease the extent to which the offender should be punished. In your case, Mr Amandeep Singh, you’ve indicated to the author of the pre-sentence report limited remorse, and you seem to have sought to minimise your role in this offending.
…
I’m required to impose a sentence commensurate with the seriousness of the offence. The seriousness of an offence must be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence, any aggravating factors and any mitigating factors. In sentencing you, I take account of the nature and gravity of your offending, as well as the statutory maximum penalty in relation to it, the circumstances of the commission of the offence, and the aggravating and mitigating factors.
A sentence of imprisonment must not be imposed unless the court decides that the seriousness of the offence is such that only imprisonment can be justified, or that the protection of the community otherwise requires it. I must have regard to the purposes of imposing punishment, to punish you and to deter both you and others from committing offences in the future.
If I reach a conclusion that a sentence of imprisonment must be imposed, I’m obliged to consider afresh whether or not a sentence of imprisonment should be suspended or whether, having regard to the nature of the offence and the need for the protection of the community, an immediate sentence of imprisonment must be imposed.
In assessing the extent of your culpability, I bear in mind that you have pleaded not guilty, and you are not to be penalised in the sentencing process for the exercise of that right.
In your case, Mr Amandeep Singh, you orchestrated the forcible entry of the unit and assault upon Mr [MB]. You played a leading role whilst Mr [VS] acted as a backup.
I bear in mind that it was the early hours of the morning that you visited the unit to take the occupants by surprise. I accept that no weapons were taken to the unit or into the unit, but by sheer force of numbers you overpowered those trying to stop you entering the unit. It was a collective force of numbers. There was a risk of a confrontation with the occupants and persons, and that harm would occur once you forced your way into the unit. That was on the cards.
You, Mr Amandeep Singh, used a rod to inflict the injuries upon Mr [MB]. You assaulted him in the living room as an aider and abetter – sorry, you assaulted him in the living room, and you then – as an aider and abetter, and you were a principal in the assault upon him in the rear room. The rear bedroom, that is.
…
I’ve carefully considered the matters raised in mitigation by your counsel. I’ve also had regard to the contents of the pre-sentence report. In your case, Mr Amandeep Singh, the author of the report has this to say about you: you have no previous offending history and present with no issues in relation to alcohol or illicit substance use. Although there are concerns regarding how you appeared to minimise your offending behaviour, to your credit, you were able to recognise that your lack of aggression control and need for intervention in relation to emotional and anger management – and you expressed a willingness to address this area of need. [sic] In other words, you recognise you’ve got issues with anger management, and you’ve expressed a willingness to address them which is to your credit.
…
I conclude that, in view of the seriousness of the offence, a term of imprisonment is the only appropriate disposition. In fixing the term of imprisonment, I’m mindful of the mitigating factors that have been outlined to me and that I have referred to. I will, after determining the appropriate term of imprisonment, deal with the issue as to whether I should suspend the term in each instance.
In relation to count 1, I consider that an appropriate term of imprisonment for you, Mr Amandeep Singh, is 28 months, which I reduce to take account of all mitigating factors, including your age, your good antecedents and your remorse.
…
In relation to count 2 for Mr Amandeep Singh, I consider that an appropriate term of imprisonment is 12 months concurrent, which I reduce to take account of the mitigating factors I’ve mentioned a moment ago and the totality principle. The total criminality of your offending, Mr Amandeep Singh, warrants a total effective sentence of 28 months’ imprisonment, in my view.
I’ve carefully considered the extensive material before the court in relation to whether the term of imprisonment should be suspended. As I’ve said, I’ve come to the view that the only appropriate disposition, taking into account particularly the need for general deterrence, is a term of imprisonment.
Having reached that view, it is necessary that I carefully consider whether or not, relevant to that material in all the circumstances, the sentences to be imposed should be suspended. This requires that I consider anew all relevant circumstances. …
In your case, Mr Amandeep Singh, in all the circumstances, after having revisited all relevant factors, I’m not persuaded that given the nature, gravity and extent of your offending – that suspension would be warranted. The offence is too serious to allow for suspension. This was a serious home invasion. You played a leading role in it. There is a need to demonstrate the condemnation of the community for offences of this kind.
…
In your case, Mr Amandeep Singh, you are sentenced to 28 months’ imprisonment. The sentence is backdated to 1 April 2011. You are made eligible for parole. As the term is less than four years, you are eligible to be released on parole when you’ve served 50 per cent of the sentence. In other words, 14 months.
…” (G6)
The Applicant’s Evidence
The applicant confirmed that he had written letters to the Department in support of his case and that their contents are true and correct (see G8 and G16). He also confirmed that he had prepared a Statement of Facts and Contentions and a Personal Statement, both dated 3 January 2014, for the purpose of this proceeding and that their contents are true and correct (see Exhibit A1 and Exhibit A2).
In a letter to the Department (undated but received on 21 October 2013) the applicant stated:
“ …
The directions set out primary considerations that the minister or his delegate must take into account when exercising discretion.
I acknowledge I was charged and convicted of two charges and sentenced to 2 years 4 months. The maximum sentence for these charges is up to 10 years and I submit my sentence is at the lowest level.
The impact it has had on my family and friends has been immense and I deeply regret my actions. I also recognise from being in prison it had huge impact on victim and their families. I did not understand the consequences of my actions at the time.
To ensure I remain crime free I have undertaken a mandated program administrated by the Department of Corrective Services related to my offence. The program called Medium Intensity Violence Program runs over 3 months (132 sessions) in duration addresses amongst other issues:
Getting to know other people
offence mapping
·Looking at thinking/Change thinking
·Distress tolerance
·Manage feelings
·Substance abuse
·Getting along with others
·Safety planning
I have had significant gains reported by program facilitators from this program and learnt a lot of practical skills which I can apply to live a better life.
In addition to this I have completed a range of voluntary courses aimed at expanding on existing skill sets of welding. These include:
·Asset Maintenance
·Cert 1 in Construction
·Cert 2 in Metal Engineering
·Cert 2 in Surface Extraction
·Few other safety courses as First Aid, Working at heights and all others.
International Obligations: Best Interest of Child
I have an ex-partner [EAM] (Australian) and we have child together called [MFPM] who is early 3 years old and born on … 03.2011.
The convention of the rights of the child (CROC) obliged Australia to consider the best interest of the child as primary consideration when making decisions. I am currently seeking access to my child through the Family Law Court of WA. As I wish to maintain a close and positive relationship.
It is in my child’s best interest for me to remain in Australia and finish my family court and for us maintain a relationship. Article 9 of the CROC requires their rights to be raised by me. If I were deported I submit that these rights would be infringed.
As I want to finish this family court and resolve this matte as quick as possible for me to have contact with my son. As you can imagine it is very hard to do this while being in detention centre. As I am deported like this without resolving this matter that would be hash on me and my son will have negative impact on our lives.
…” [sic] (G16, pp 81–82)
The applicant’s Personal Statement is as follows:
“1. I was born on … July 1988 in Chandigarh, India. I am Indian Citizen by birth. I have got only one younger sister and I am older brother. I have got my parents in India with whom I have no contact.
2.I was 19 years of age when I moved to Australia on a Student Visa in January 2008. So I have been in Australia for over 6 years now. I have not left the country since arriving in 2008.
3.I came to Australia on Student Visa I was Studying Business Management and working as a welder part time.
4.Everything was running smooth and then it all went down when my parents found out that I have started going to church. And I have became Christian. They stopped supporting me and told me that I am nothing to them anymore.
5.After all that I lost my job because of global recession no one wanted to hire a part time welder and I could not find any other suitable job for me. I was broke my student visa got cancelled because I could not afford to pay my tuition fees.
6.My life was turned upside down I had started feeling depressed. I was unable to think straight. My mind was full of all sorts of thoughts. I could not see what’s happening in near future life I had no plans or no one to guide me.
7.My visa was cancelled and I started living in a house full of boys. Which was the mistake I made to move with the guys which I would consider bad influence.
8.The biggest contributing factor for my criminal behaviour was that I was very vulnerable situation and easily influenced. I made the worst decision of my life to go out and recover my property of the victims place in the company of my so called mates.
9.I regret the decision I made that night every moment of my life since the incident.
10.I have met this girl through internet, my son’s mother we were chatting all this time. She tells me she is coming to Perth. I was happy and bit nervous about it because I was still broke and I was out on bail and living a day to day life which was struggle for me.
11.She comes to Perth and she was staying in motel. We were seeing each other everyday. She wanted to start some business which I do not knew what was it. And she was here for the month during that time she got pregnant and within the month she was back in Cairns.
12.We were in touch after that till I went to prison. After that I tried to contact her I did not have her number. Then I managed to find her address, at first she did not reply and she would not give me her details. And would not send me any photos or anything of my son. Then I started the process through the family court of Western Australia. Which is half way through because I need to do a parenting test. As she has turned around in court and told that she is not sure if I am the father. She did this to claim all those single mum benefits. And other reason was that she was not really happy about me going to court for my son.
13.My son is only 3 years old. He does not understand anything yet. I still have the time to get out and be a part of his life and provide him with everything he needs and be support to my child’s mother financially and every-way possible.
14.Time in Prison: Since coming to prison I have had time to think about my life and I have looked at my past life and all I can see is terrible mistake I made which have affected my life and other people.
15.My prison record shows that I have had no breaches during my whole sentence. I was minimum security facility for all of my time during incarceration under minimum supervision.
16.I have done lots of courses in prison, including Violence Program, Life Skills and lots of other vocational programs. Which are going to help me mental fitness and study recovering stress, anger management and planning for future.
17.I have unable to provide anything for my son so far. But I want to build a strong relation with my son and want to be his father and want be there with him always by providing him everything he needs in his life.
18.I can not say I am dad yet because I understand being dad means much more than being just related to someone. I want to be a dad to my son.
19.My current Situation: I truly believe I am different person now. I going to make a fresh start if given chance. I am going to live my life for my son. Without I be nothing and I would have nothing to look forward to.
20.I have found out who my friends are while I was in prison. I had a circle of more than 100 friends. But when I went to prison there were only few left. Who stuck up with me in my hard time and they are the one’s who are happy to help me when I get out they want me start fresh and live better life. I have got support letters of them in my case.
21.Even I have not been there for my son and his mother in the past. I want to be there for them and be part of there life in every possible.
22.I have missed so much of my sons life already. I do not wish to miss anymore. I want to spend rest of my life looking after my son. As he is only one I am left with.
23.If I leave Australia I will never be able to see my son again in my life. And maybe my son will never know who’s his father.
24.If I am deported this would be the end of everything for me. I will not be able to do anything to be part of my son’s life and be unable to play any role in my son’s life. It would mean that I could never be able to play a real parental role in my son’s life. I have been looking forward to be part his life for last few years. The prospect of getting out and being a real father for first time in my life I can say I have goal and that is to be dad. I have something in my life which is worth everything that is my son.” [sic] (Exhibit A2)
In his Statement of Facts and Contentions the applicant stated (inter alia):
“ …
1.The Protection of the Australian community
(a) The seriousness and nature of the conduct
· I accept and acknowledge that I have a substantial criminal record in Australia.
· Since arriving in Australia in 2008 my criminal record consist of offence which attracted 28 months imprisonment as imposed by court.
· I am not trying to minimise my involvement in the offence I committed in Australia, on contrary I regret and feel ashamed of this offence. I know and I understand I have done wrong.
· This is the only offence I have ever committed. I have got no previous records or such thing. I have spent most of my time in minimum security prison with no charges.
(b) Risk that I might re-offend
· I feel totally ashamed about the way I have behaved and deeply regret the hurt I have caused my family and various victims of the offence. I truly understand the consequences of my actions.
· I know I can be a productive member of the community by turn around my behaviour and the positivity in my thinking.
· I have the full support of my friends who live in Australia.
· I want to apply for substantial visa so I can have a stable life with my son as a family.
· I love my child and I can not imagine life without him because he is the only family I have got.
2.The Best Interest of the Children
· Section 501 discussed in detail the best interest of the child. As under Australia Law and regulations always the best interest of the children is to remain with both their parents.
…
4. Ties of India
I have mother father and sister back home in India. With whom I have no contact for last few years. I am welder as there is not much work available for welders in India. And if there is any work available they very under paid. There is no welfare system in India that means I do not have any support or anyting in India I should go back to. I do not have anyone who can support me when I go back to India.
5. Conclusion
· I am fully aware of my past offending behaviour and not proud of what I have done in the past.
· I understand this is my last chance to unite with my son.
· If granted this Bridging Visa E, it is my immediate intention to apply for parenting visa as soon as I finish my family court, which is pending in Family Court of Western Australia.
· I am determined to stay clear of every trouble and everyone who could be bad influence to me, I know this where I failed in past.
· I will not be able to afford to fly back to Australia if I am deported as I have explained above that I be poor in country of my origin and I will hard or most probably impossible for me to chase anything relating to family court from India.
· Undoubtedly the separation of my son would cause huge negative effect emotionally, physiologically and financially in the future of mine and mine son.
· If I am permitted to stay in Australia I would move to Queensland and be a part of my son’s life.
· I would do the right thing by my family and the Australian Community.” [sic] (Exhibit A1)
The applicant added, in oral evidence, that, following the commission of his offences, he was in the community on bail for 16 months and did not commit any further offences; nor did he incur any prison charges during the 28 months of his incarceration.
In cross-examination the applicant gave evidence to the following effect:
·as regards the offence of aggravated burglary of which he was convicted in April 2011, he played the leading role – it was his “idea”;
·as regards the offence of assault occasioning bodily harm of which he was also convicted in April 2011, he did not use a weapon but, instead, he punched the victim and kicked him in the shins causing bruising on his wrist and swelling on his shins;
·in all other respects the sentencing judge’s remarks are accurate;
·the 8-week Medium Intensity Violence Program which he completed in prison in March 2012 was undertaken by him voluntarily – he was not required to do that program;
·he was denied parole by the Prisoners Review Board in May 2012;
·although the Prisoners Review Board stated that he continued to justify and minimise the seriousness of his offences, he now regrets that he committed those offences and is remorseful for them;
·although the Prisoners Review Board also stated that the Medium Intensity Violence Program Completion Report indicates that he made “minimal gains” from that program, he disputes that – he does not know why they said that but thinks that it was because of a “difference of opinion” about whether the use of drugs should be legal;
·he has never used drugs but he told them that it did not matter whether drugs were legal or not – those who used them would continue to do so, and those who did not use them would continue not to do so;
·he met [EAM] on the internet and, although she lived in Cairns, she came over to Perth and spent about 1½ months with him in mid 2010 – probably in June or July;
·during that period “she fell pregnant” – “she found out while she was here” – and she told him that he was the father;
·she then went back to Cairns;
·at first she told him that she would make a scrapbook about his son for him and bring his son to Perth so that he could see him, but she did not do that;
·he then sought orders from the Family Court but she told the Family Court that she is not sure whether he is the child’s father;
·although the Family Court made an order on 18 October 2012 that he take a parentage test, he was not able to do so because he was in prison and he has also been unable to do so since he has been in immigration detention;
·he has had no involvement with the child as yet – he has not spoken with the child or financially contributed to the support of the child because he has been in prison and detention;
·the child’s mother [EAM] does not say that she does not want him to have any involvement in the child’s life – she wants him to take a parentage test and seek orders from the Family Court and then he can play a role in the child’s life;
·if given a chance he will look after his son;
·if the parentage test proves he is not the child’s father, he will just leave the country – that’s the only reason he applied for a bridging visa;
·if the parentage test proves he is the child’s father, he will apply for a substantive parenting visa and move to Queensland (where the child lives) and start again;
·he did not ask [EAM] to provide a statement for this matter – she does not want to help him in any way – the only messages she sends him are about his taking the parentage test.
Additional Material Included in the G Documents
The following additional relevant material (to which the Tribunal has also had regard) is included in the G Documents:
·copies of seven character references (G17, pp 85–91);
·copies of documents evidencing various educational courses undertaken by the applicant in prison (G18, pp 95–103);
·copy of Medium Intensity Violence Program (132.5 hours) Completion Certificate, dated 8 March 2012 (G18, p 92);
·copy of Life Skills Program Certificate of Participation, dated 25 April 2012 (G18, p 93);
·copy of an Order of the Family Court of Western Australia, dated 18 October 2012, whereby the applicant, [EAM], and [MFPM] born … March 2011, were ordered to (inter alia) “undergo parentage testing procedures in accordance with the procedures set out in the Family Court Act 1997 and the Family Court of Western Australia Regulations 1988”. (G19, p 104)
The G Documents also contain a copy of a letter from Sonya Hanson, Licensed Master Social Worker, dated 24 April 2012, regarding the applicant’s participation in the Life Skills Program. That letter states:
“ I am the Life Skills Training Officer at Wooroloo Prison. Amandeep has completed my Life Skills course, the course consists of 25 hours of modules consisting of Change, Communication, Finding and Keeping a Job, Anger Management, Setting Goals, Keeping Healthy and Money Management.
Even though this is a voluntary course, Amandeep has attended ever [sic] course in a timely manner. He has been very inter-active in the course, and has set goals that he plans to implement upon release. Amandeep has excellent inter-personal and verbal skills. He now has clear goals and is in the process of implementing steps to pursue these goals. He has excellent family support.
He is extremely remorseful for the actions that lead to his incarceration and has implemented safety nets within the community so that this will not be repeated. He will be receiving counselling and is very clear which individual [sic] he will not be able to associate with.
…” (G17, p 84)
Additional Material Tendered by the Respondent
The respondent also tendered in evidence a copy of a letter from the Deputy Chairperson, Prisoners Review Board, Western Australia to the applicant, dated 3 May 2012. That letter relevantly states:
“ The Prisoners Review Board today considered your case and made the following decision based upon the reports and information presented to it:
·Deny Release on Parole.
For the following reasons:
Risk to the safety of the community and risk of re-offending due to;
1.The serious nature of the premeditated home invasion and assault which you continue to justify and minimise in seriousness.
2.The Board acknowledges your completion of the Medium Intensity Violent Offender Treatment program however the completion report indicates minimal gains which have not reduced the risk to the safety of the community.
…” (Exhibit R2)
Analysis
Application of the “character test”
By reason of the fact that the applicant was, on 7 June 2011, sentenced to 28 months’ imprisonment, the Tribunal finds that the applicant has a “substantial criminal record”, as defined in s 501(7) of the Act, and that, by reason of s 501(6)(a) of the Act, he does not pass the “character test”.
It follows from that finding that the discretionary power to refuse to grant the visa, pursuant to s 501(1) of the Act, is enlivened in this case.
Should the discretionary power to refuse to grant the visa be exercised in this case?
The primary considerations
Paragraph 11 of the Direction states:
“ 11 Primary considerations – visa applicants
(1) In deciding whether to refuse a person’s visa, the following are primary considerations:
(a)Protection of the Australian community from criminal or other serous conduct;
(b) The best interests of minor children in Australia;
(c)Whether Australia has international non-refoulement obligations to the person.”
Protection of the Australian community from criminal or other serious conduct
Paragraph 11.1 of the Direction states:
"11.1 Protection of the Australian community
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision-makers should also give consideration to:
(a) The nature and seriousness of the person's conduct to date; and
(b) The risk to the Australian community should the person commit further offences or engage in other serious conduct.
11.1.1 The nature and seriousness of the conduct
(1)In considering the nature and seriousness of the person's criminal offending or other serious conduct to date, decision-makers must have regard to:
(a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;
(b) The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(c) Where the person is in Australia, that a crime committed while the person was in immigration detention; during an escape from immigration detention; after the person escaped from immigration detention, but before the person was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
(d) The principle that any conduct that forms the basis for a finding that a person does not pass the character test under s 501(6)(b) or (d), or is not of good character under s 501(6)(c), is considered to be serious;
(e) The sentence imposed by the courts for a crime or crimes;
(f) The frequency of the person’s offending and whether there is any trend of increasing seriousness;
(g) The cumulative effect of repeated offending;
(h) Whether the person has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(i) Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
11.1.2The risk to the Australian community should the person commit further offences or engage in other serious conduct
(1)In considering whether the person represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable.
(2)Decision-makers should also consider whether the purpose of the intended stay reflects strong or compassionate reasons for granting a short-stay visa. In making the risk assessment, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and
(b)The likelihood of the person engaging in further criminal or other serious conduct, taking into account:
i. information and evidence from independent and authoritative sources on the likelihood of the person re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and
iii. the duration of the intended stay in Australia.”
It is common ground that the applicant’s criminal offending to date consists entirely of the two offences which he committed in Australia on 21 December 2009 and for which he was sentenced to an effective term of 28 months’ imprisonment on 7 June 2011, namely:
·aggravated burglary and commit offence in dwelling; and
·assault occasioning bodily harm.
Those two offences, however, fall into a category of offences which, pursuant to para 11.1.1(a) of the Direction, are “viewed seriously”, namely, “violent crimes”. The seriousness with which Stone DCJ viewed the offences committed by the applicant is reflected in the substantial term of 28 months’ imprisonment, to be served immediately, to which he sentenced the applicant for those offences. He described those offences as involving “a serious home invasion” and added:
“ There is a need to demonstrate the condemnation of the community for offences of this kind.”
In the Tribunal’s opinion the abovementioned offences which the applicant committed on 21 December 2009 are to be regarded as serious offences for the purposes of para 11.1 of the Direction.
If the applicant were, in the future, to commit further offenses of the serious kind which he committed on 21 December 209, the harm that would be caused to individuals or the Australian community would, of course, be of similar seriousness to that which was caused to the victims of those offences, namely, the infliction of bodily harm in the course of a serious home invasion – the kind of criminal offending which, as Stone DCJ indicated, is condemned by the Australian community.
A more problematic matter for the Tribunal’s consideration is “the likelihood of the [applicant’s] engaging in further criminal or other serious conduct” (para 11.1.2(2)(b) of the Direction).
The applicant gave evidence that he spent 16 months in the community on bail after committing the abovementioned offences in December 2009 until he was convicted of those offences in April 2011 and that he did not commit any further offences in that period. There is no evidence, however, that he undertook any rehabilitation programs in the community during that period.
There is, on the other hand, evidence that he undertook rehabilitation programs during his subsequent incarceration – in particular, the 25-hour Life Skills Program conducted by Sonya Hanson, and the 132.5-hour Medium Intensity Violence Program offered by the Department of Corrective Services, which he completed in April 2012 and March 2012, respectively. Although there is in evidence a letter from Ms Hanson describing, in positive terms, the applicant’s participation in her Life Skills Program (see paragraph 21 above), the Completion Report of the Facilitators of the Medium Intensity Violence Program is, unfortunately, not in evidence. That report is, however, briefly referred to in the abovementioned (see paragraph 22 above) letter of the Deputy Chairperson of the Prisoners Review Board, dated 3 May 2012, to the applicant informing him of the Board’s decision to deny him release on parole, in the following terms;
“ The Board acknowledges your completion of the Medium Intensity Violent Offender Treatment program however the completion report indicates minimal gains which have not reduced the risk to the safety of the community.”
There is, unfortunately, no authoritative, objective evidence before the Tribunal which addresses comprehensively the degree of likelihood or risk of the applicant’s reoffending. The Prisoners Review Board, however, in its abovementioned letter of 3 May 2012 to the applicant, stated that it had decided to deny him release on parole because of the “risk to the safety of the community and risk of re-offending …”.
The duration of the applicant’s stay in Australia if granted the visa (being of a temporary nature) is uncertain. The applicant has said that, if granted the visa, he intends to apply for a substantive, parenting visa. However, the period for the determination of such an application, and the outcome of such an application, are also uncertain.
Having regard to the abovementioned considerations, the Tribunal is prepared to accept that the risk of the applicant’s reoffending in a serious manner is not high, but the Tribunal does not accept that such risk is low. In the Tribunal’s assessment, there is a real, and not insignificant, risk that the applicant may reoffend in a serious manner if he remains in Australia. In the Tribunal’s opinion, having regard to all the circumstances of the applicant’s case, that is a risk which the Australian community would not be prepared to accept and should not be expected to tolerate.
Conclusion regarding protection of the Australian community
Having regard to the considerations referred to in paragraphs 27–35 above, the Tribunal concludes that this “primary consideration” weighs strongly in favour of refusal to grant the visa.
The best interests of minor children in Australia
Paragraph 11.2 of the Direction states:
“ 11.2 Best interests of minor children in Australia affected by the decision
(1) Decision-makers must make a determination about whether refusal is, or is not, in the best interests of the child.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse to grant the visa is expected to be made.
(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4) In considering the best interests of the child, the following factors must be considered where relevant:
(a)The nature and duration of the relationship between the child and the person. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the person is likely to play a positive parental role in the future (taking into account the length of time until the child turns 18), and including any Court orders relating to parental access and care arrangements;
(c)The impact of the person’s prior conduct, and any likely future conduct, and whether that conduct has, or will have, a negative impact on the child;
(d)The likely effect that any separation from the person would have on the child, taking into account the child’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the person has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the person’s conduct.”
On the basis of the Order of the Family Court of Western Australia, dated 18 October 2012 (referred to in paragraph 20 above), the Tribunal is satisfied, and finds, that there is a child, namely, [MFPM], who was born in March 2011 and who is in Australia. The question is, however, whether [MFPM] is a relevant child for present purposes – that is, a child who would be affected by a decision to refuse to grant the visa to the applicant.
Although the applicant testified that Ms [EAM] told him, in or about July 2010, that she was pregnant and that he was the father of the expected child, he also testified that she later told the Family Court that she was uncertain as to whether he is the father of that child, resulting in the Family Court’s making the abovementioned Order whereby it ordered that the applicant, Ms [EAM] and [MFPM] undergo parentage testing procedures.
According to the applicant’s evidence, he has not been in a position to undergo such parentage testing, and no results of any such testing are in evidence.
In these circumstances, the Tribunal cannot be satisfied that [MFPM] is a child of the applicant.
According to the applicant’s own evidence, furthermore, he has never had any contact with [MFPM], and, unless he obtains a Family Court Order granting him access to that child in the future, he is, given Ms [EAM’s] unwillingness to co-operate with him, unlikely to have any contact with that child in the future.
In the present circumstances the Tribunal cannot be satisfied that the applicant is likely to play any parental role in relation to [MFPM] in the future or that his separation for [MFPM] would have any effect on that child.
Having regard to the relevant factors referred to in para 11.2(4) of the Direction, the Tribunal, as presently advised, is not prepared to go so far as to determine that refusal to grant the visa would be in the best interests of [MFPM]. The Tribunal is simply unable to determine whether refusal to grant the visa would, or would not, be in the best interests of [MFPM] because it is not satisfied, on the evidence before it, that [MFPM] would be affected by a decision to refuse to grant the visa.
Accordingly, in the present circumstances, the Tribunal does not attach any weight to this “primary consideration”.
Whether Australia has international non-refoulement obligations to the person
Paragraph 11.3 of the Direction states:
“ 11.3 International non-refoulement obligations
(1) In cases where claims which may give rise to international non-refoulement obligations are raised by the person or are clear from the facts of the case, they must be given consideration if the person is in Australia.
(2) The power to refuse a visa is a fundamental exercise of Australian sovereignty. The existence of a non-refoulement obligation does not preclude refusal of a person’s visa. This is because Australia will not necessarily remove a person, as a consequence of refusing to grant them a visa, to the country in respect of which the non-refoulement obligation exists. However, any non-refoulement obligation should be weighed carefully against the seriousness of the person’s criminal offending or other serious conduct in deciding whether or not the person’s visa application should be refused.
(3)Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); and the International Covenant on Civil and Political Rights (ICCPR) and its Second Optional Protocol. …”
The applicant has not raised any claim which may give rise to international non-refoulement obligations; nor is any such claim clear from the facts of the applicant’s case. Accordingly, pursuant to para 11.3(1) of the Direction, the Tribunal is not required to consider such matters.
This “primary consideration” is, therefore, not applicable or relevant to the applicant’s case and the Tribunal, consistently with para 8(1) of the Direction, has not taken it into account.
Other relevant considerations
Paragraph 12 of the Direction states:
“ 12 Other considerations – visa applicants
(1) In deciding whether to refuse to grant a visa, other considerations must be taken into account where relevant. These considerations include but are not limited to:
(a)Impact of visa refusal on immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely;
(b)Impact of a decision to grant a visa on members of the Australian community, including victims of the person’s criminal behaviour, and the family members of the victim or victims, where that information is available and can be disclosed to the person being considered for visa refusal;
(c)Impact on Australian business interests if the person’s visa application is refused.”
The applicant has no immediate family members in Australia and there is no evidence before the Tribunal regarding either the impact of a decision to grant the visa on members of the Australian community or the impact on Australian business interests if the applicant’s application for the visa is refused.
The applicant submitted, however, that, if his application for the visa were refused, he would suffer considerable emotional hardship by reason of his being deprived of the opportunity of establishing that [MFPM] is his biological child and thereafter playing a significant parental role in that child’s life, and also financial hardship in that he would be very unlikely to obtain well-paid employment in India and would not be able to rely on social welfare or even the support of his family. The applicant, on the other hand, acknowledged that, if he were removed to India, he would not experience any language or cultural difficulties. He would, furthermore, have the opportunity of reconciling with his parents and seeking their support.
The Tribunal notes that the considerations referred to in para 12(1) of the Direction are not exhaustive. In the Tribunal’s opinion, the abovementioned considerations relied on by the applicant, although not falling into the categories specified in para 12(1), are relevant in the circumstances of this case. Those considerations arguably weigh against refusal of the visa but, in the Tribunal’s assessment, are not deserving of significant weight.
Conclusion – the Preferable Decision
In the Tribunal’s assessment, the “primary consideration” of the protection of the Australian community which, in the circumstances of this case, weighs strongly in favour of refusal to grant the visa, overwhelmingly outweighs the considerations relating to the impact on the applicant of refusal to grant the visa referred to in paragraph 51 above. As previously mentioned, the relevance of the “primary consideration” of the best interests of the child, upon which the applicant relied heavily, has not been established in this case and, accordingly, has been given no weight by the Tribunal.
Having taken into account the "primary consideration” of the protection of the Australian community and the other relevant considerations in this case, the Tribunal, pursuant to para 7(1) of the Direction, determines that:
·the risk of future harm to the Australian community by the applicant is unacceptable; and
·the applicant has forfeited the privilege of being granted the visa.
Accordingly, the preferable decision in this case is that the applicant’s application for the visa be refused under s 501(1) of the Act.
Decision
For the above reasons, the decision under review is affirmed.
I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop ..............[sgd D Brodie]..........................................................
Administrative Assistant
Dated 29 January 2014
Date of hearing 15 January 2014 Representative of the Applicant In person (unrepresented) Representative of the Respondent Mr A Gerrard Solicitor for the Respondent Australian Government Solicitor
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