Singh and Minister for Immigration and Border Protection (Migration)
[2016] AATA 1040
•19 December 2016
Singh and Minister for Immigration and Border Protection (Migration) [2016] AATA 1040 (19 December 2016)
Division
GENERAL DIVISION
File Number
2016/5333
Re
Amrit Pal Singh
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Mr D. J. Morris, Member Date 19 December 2016 Place Perth The Tribunal affirms the decision of the Minister’s delegate dated 23 September 2016 and conveyed to the Applicant on 28 September 2016.
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D. J. Morris, Member
MIGRATION – Refusal to grant a non-citizen’s visa on character grounds – applicant does not pass character test – whether discretion should have been exercised – the protection of the Australian community from criminal or other serious conduct – expectations of Australian community – decision to refuse visa affirmed
Legislation
Migration Act 1958 (Cth) ss 499, 501
Criminal Code Act Compilation Act 1913 (W.A.) s 325Cases
Fabb and Minister for Immigration and Border Protection (Migration) [2016] AATA 894
Sadiq and Minister for Immigration and Border Protection (Migration) [2016] AATA 463
Zeng and Minister for Immigration and Citizenship (2011)121 ALD 372Secondary material
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, instrument made on 22 December 2014
REASONS FOR DECISION
D. J. Morris, Member
19 December 2016
INTRODUCTION
This is an application lodged under section 500(1)(b) of the Migration Act 1958 (the Act) for review of a decision of a delegate of the Minister for Immigration and Border Protection (the Respondent) dated 23 September 2016 to refuse to grant Mr Amrit Pal Singh (the Applicant) a Partner (Temporary)(Class UK) visa pursuant to section 501(1) of the Act.
BACKGROUND
Mr Singh is a 38 year old citizen of India. He first arrived in Australia on 12 May 2006 as the holder of a Student (Class TU) visa which was valid until 6 August 2011. On 19 July 2008 Mr Singh applied for a Skilled (Provisional) (Class VC) visa. On 25 August 2008 he applied for a Skilled (Residence)(Class VB) visa. On 18 March 2010 a delegate of the Respondent decided not to grant Mr Singh either of these visas.
In March 2011 Mr Singh was charged with the offence of sexual penetration without consent under section 325 of the Criminal Code Act Compilation Act 1913 (W.A.). He pleaded not guilty but was committed to trial and convicted by a jury.
On 3 October 2011 Mr Singh married Ms Louise Donnan, an Australian citizen. On 13 October 2011 the Applicant lodged a combined application for a Partner (Temporary)(Class UK) visa and a Partner (Residence)(Class BS) visa.
On 15 March 2012 Mr Singh was sentenced to 6 years’ imprisonment by the District Court of Western Australia.
On 11 December 2012 an appeal against the Applicant’s conviction was dismissed by the Court of Appeal of the Supreme Court of Western Australia.
On 11 November 2014 a delegate of the Respondent refused Mr Singh’s application for the partner visa. The Applicant sought review by the then Migration Review Tribunal and on 28 January 2016 the Migration and Refugee Division of the Administrative Appeals Tribunal remitted the matter to the Department of Immigration and Border Protection (the Department).
On 1 July 2016 the Department sent Mr Singh a letter notifying him of an intention to consider refusing his visa application under section 501 of the Migration Act and providing him with an opportunity to comment.
Through his lawyer, on 29 July 2016 the Applicant responded to the Department and provided a number of documents.
On 23 September 2016 a delegate of the Minister made a decision pursuant to section 501(1) of the Act to refuse Mr Singh’s application for the visa. This decision was conveyed to Mr Singh in writing on 28 September 2016.
On 6 October 2016 Mr Singh sought review of the delegate’s decision by the General Division of the Administrative Appeals Tribunal. That is this hearing.
ISSUE AND LEGISLATION
The issues for consideration by the Tribunal are:
(i)whether Mr Singh passes the “character test”; and
(ii)if not, whether Mr Singh’s visa should be refused to be granted, taking into account the relevant consideration in Direction No. 65.
The character test
Section 501(1) says that the Minister, or the Minister’s delegate, may refuse or cancel a visa if the person applying for the visa does not satisfy the Minister that the person passes the character test. This power is discretionary. The character test is defined in section 501(6) of the Act.
Subsection 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…
Subsection 501(7) states, relevantly in this matter, in setting out what a substantial criminal record is:
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;…
Dr Etienne de Villiers Hugo, from Telco Immigration, representing the Applicant, said in a statement to the Department dated 29 July 2016:
In essence, we concede that Mr Singh prima facie falls short of the provisions of the ‘character test.’ However, we request that you, as the delegate of the minister in this instance, in considering the particular facts of the case, find in favour of our client and exercise your discretion not to refuse Mr Singh’s Partner (Temporary)(Class UK) visa…
Mr Godwin, counsel for the Applicant, echoed this position at this hearing in accepting that Mr Singh falls short of satisfying the character test and submitted that in this matter the Tribunal is asked to exercise the discretion available under section 501 of the Act not to cancel the Applicant’s visa, notwithstanding that fact.
He submitted that discretion should be exercised in favour of Mr Singh, taking into account the considerations identified as relevant in Direction No. 65.
DIRECTION No. 65
Section 499 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) comply with the Direction in considering this matter.
Paragraph 6.1 of the Direction states, in part:
6.1 Objectives
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
(2)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, in Mr Singh’s case, the Direction includes the following provisions:
(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 the considerations set out in Part B, which is divided into primary considerations and other considerations.
Primary considerations are: Protection of the Australian community; the nature and seriousness of the conduct; the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct; the best interests of minor children in Australia affected by the decision; expectations of the Australian community.
Other considerations set out in Part B of the Direction are: International non-refoulement obligations; impact on family members; impact on victims; impact on Australian business interests.
The Direction sets out that primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations.
THE OFFENCE
The Tribunal cannot reconsider the Applicant’s conviction in considering this matter. As Deputy President Forgie said in Zheng and Minister for Immigration and Citizenship 121 ALD 372 at [121]:
It is not my task to ascertain the precise facts of the offence. I cannot go behind the convictions themselves and question whether they were properly reached. I cannot question whether the essential elements of each offence were made out and must accept that they were.
It is however necessary for me, in coming to a conclusion about whether the Respondent’s delegate made the correct or preferable decision in relation to the exercise of discretion in relation to refusing to grant Mr Singh a visa, to consider the circumstances surrounding the offence. The Applicant did not dispute his conviction, although in cross-examination some of his recounting of the circumstances of the offence differed slightly from some of the evidence adduced at trial.
Essentially, the background is that the Applicant was working as a taxi driver. One night his cab was hailed by a female passenger. It transpired that she was out on a hen’s night and had had gone to a nightclub with her friends. She was refused entry. She hailed a cab driven by Mr Singh. She then gave him her home address where she lived with her husband. On the journey the Applicant conversed at length in Punjabi on his mobile telephone to various friends who were also taxi drivers. Mr Singh turned off the highway and parked in a suburban carpark. He telephoned a friend who was also a taxi driver, advised of his location and asked him to join them. Mr Singh then had sexual intercourse with his passenger on a number of occasions. He did not use a condom.
His friend joined them at some stage during the activity. The Applicant said that he had asked him to join them because his passenger had asked for water. Although he had water in his cab he told the Tribunal it was warm and the passenger wanted cold water, which he knew his friend kept in his taxi. The Court did not accept this explanation for the presence of his friend. The Applicant then drove his passenger to her home, by a circuitous route that he said he took at her direction. She then entered her house and asked her husband to go out and pay the fare. The husband paid the fare and obtained a receipt from Mr Singh. The next day the Applicant was arrested by Western Australia police officers. He was subsequently charged with the crime of sexual penetration without consent. He pleaded not guilty and was committed to trial. He was unanimously found guilty by a jury.
The Respondent submitted Judge Braddock’s comments passed at sentencing, and they were admitted into evidence. Relevantly, Her Honour said:
She [the complainant] was, I find, seriously intoxicated at the time, that is to say, intoxicated to a significant degree, despite the ability to walk, as seen on the video, and sufficiently intoxicated to be refused entry to that establishment.
You picked her up in your taxi. She was able to give you her address and she wanted to be taken home to her house, where she lived with her husband, in [name of locality]. You set off in that direction and travelled down the freeway. I find that there was minimal conversation between you and her of the typical passenger/driver type, and I find that it must have been apparent to you that she was seriously intoxicated.
I do not interpret that her friendliness could be misinterpreted, as has been suggested by your counsel. I find that as a taxi driver you would have been reasonably familiar with the states of intoxication that passengers might be found to be in, and you were in a position to read that state of intoxication in [name of complainant] to a certain degree.
While you were driving down the freeway you were talking on the telephone to various friends who were also taxi drivers. By this means you arranged for your friend [name of co-accused] to meet up with you...
…
I find that by this time the complainant was in a semi-conscious state due to the effects of alcohol, or so intoxicated and tired that she was not capable of understanding or consenting to any form of sexual activity.
Protection of the Australian community from criminal or other serious conduct
The nature and seriousness of the conduct (Paragraph 11.1.1)
The Applicant accepted that he committed a serious offence. His counsel submitted that he does not have an extensive criminal history. The Tribunal had evidence from both Indian and Australian authorities which revealed the only other matters relevant to Mr Singh were some minor traffic infringements. The Applicant said that he provided a receipt to his passenger’s husband on the night of the offence by which he could be readily identified.
There is no doubt to me that the offence for which the Applicant was convicted was serious. As the Direction says at paragraph 11.1.1 (1)(a): without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously.
Mr Godwin, for the Applicant, submitted that this was not a ‘violent’ crime. Much of the argument of the Applicant’s counsel hinged on the absence of consent. The Tribunal does not accept that a crime of this nature can be characterised as ‘not a violent crime’. A court has found that the victim was incapable of giving consent to a penetrative sexual act, and the conviction was upheld on appeal. Axiomatically, in such a crime, there is an element of violence.
This primary consideration weighs against the Applicant.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (Paragraph 11.1.2)
As mentioned, counsel for the Applicant submitted that Mr Singh did not have an extensive criminal history. Extensive evidence was given by the Applicant and by others that he had participated in a large number of rehabilitative and training courses, many of them voluntary, while serving his sentence. Evidence was also given, and not contested, that Mr Singh had been a well-behaved prisoner. The Tribunal had before it various reports from the Western Australian Department of Corrective Services which supported the contention that he had accepted his punishment and had tried to better himself in prison. He gave evidence under cross-examination that he now realised how wrong his actions were and that a person who is intoxicated is not capable of giving consent.
The Tribunal also had before it a report from Mr Philip Wolfers, psychologist. Mr Wolfers gave evidence and was cross-examined. He said that he examined Mr Singh in a single, extended session. He also examined the Applicant’s wife, Ms Donnan, to assess the effects on her if her husband’s visa application was refused and he was deported.
Mr Wolfers’ report stated:
It is very clear from his actions since incarceration commenced that Mr. Singh has made every possible effort to rehabilitate himself and ensure he is of good character. He has attended numerous courses, some more than once, and carried out considerable personal reflection and personal planning to ensure that he understands his situation and becomes a good person of good character. It is clear from the assessments carried out in prison that he has achieved this.
Mr Wolfers undertook various psychological testing of Mr Singh including MMPI-2, the Survey of Personal Values, and the Interpersonal Effectiveness Profile. In terms of MMPI-2, Mr Wolfers stated that the scores indicated: No criminal thought patterns; No anti-social practice/tendencies; Good social adjustment; Low negative treatment indicators. No mental pathologies.
In terms of the Survey of Personal Values, the scores indicated: Very goal driven. Decisive; Organised; Determined. In terms of the Interpersonal Effectiveness Profile, the scores indicated: Highly sociable and co-operative. Trustful and Responsible. Generous and Likeable; Persistent and Task-oriented.
Mr Wolfers concluded:
In interpreting these results, it is very clear that Mr. Singh is a man who has given considerable effort in ensuring his rehabilitation and fitness to contribute to Australian society. He has worked hard to be of good character, and he has achieved this. His results strongly indicate that Mr. Singh is a person of good character.
In cross-examination, Mr Wolfers told the Tribunal that he has been practising as a psychologist for 17 years. When asked about past experience with recidivism assessment, he said this was the first case he had considered of exactly this type; he usually undertakes assessments relating to criminal intent. He said that he liked to have between three and five sessions with any subject being assessed and he was only able to have one assessment session with Mr Singh, but it was long and, he believed, thorough. He told the Tribunal he would have preferred to have another session but had no doubt that it was conclusive.
Mr Wolfers said that he was aware that there had been a Static 99 assessment, but he had not seen the details. Both the Applicant and Respondent said that they did not have the details of the Static 99 assessment and had been unable to obtain it from Western Australian authorities. The Tribunal is aware that a Static 99 assessment is a widely used instrument deployed to assess adult sex offenders to evaluate their risk prior to their release into the community.
The only reference to a Static 99 assessment of Mr Singh which was before the Tribunal was in a WA Department of Corrective Services document dated 13 August 2014 titled Offender Services STRICTLY CONFIDENTIAL Program Completion Report. This document was significantly redacted, the Tribunal was told, in order to remove the names of third parties.
This document under the heading ‘Risk’ states:
The Static 99 is an internationally recognised risk assessment measure that combines 10 static (unchanging) risk factors that have been shown to be associated with increased risk of re-offence and has been used to estimate Mr Singh’s risk of sexual offending. Mr Singh’s Static 99 score places him in the moderate-low risk category. Based on a sample of sex offenders from Canada and the UK upon which the Static 99 was developed, 1 out of 10 offenders who received a similar score to Mr Singh were reconvicted of a sexual offence within a 5 year period.
It is a matter for concern to the Tribunal that a copy of this report was not available and the only reference was this short summary in another document. Despite this, it is nevertheless an assessment the Tribunal must take into account.
The Tribunal notes that Mr Wolfers concluded in his assessment that Mr Singh, in his words, is “of good character”. This is his conclusion based on Mr Singh’s scores from a three hour assessment and on his evaluation, on his own admission, of tests carried out by others during Mr Singh’s time in prison.
The Program Completion Report also includes the following passage:
Mr Singh was able to verbalise shame, guilt and remorse for his offending and did not attempt to minimise or justify his behaviour. Nor did he attempt to externalise blame for his offending. During treatment Mr Singh was afforded the opportunity to demonstrate his understanding of the impact sexual offending may have on victims.
[Material redacted in original.]
In an exercise designed to increase understanding of consent, Mr Singh engaged well and articulated an increased level of awareness with regard to informed consent. He acknowledged consent cannot be assumed, nor given when someone is under the influence of substances.
It is clear to the Tribunal that Mr Singh has been strongly committed to rehabilitation during his time in prison. The reports of prison officers consistently record him as polite and co-operative. There was no evidence of any negative comments about his imprisonment or minimisation of the offence – indeed he told the Tribunal that his plea of not guilty was entered on the advice of his legal counsel. He did not negatively reflect on his charge or subsequent sentence. He has had consistent support from his wife, Ms Donnan, who regularly visited him during his time in prison and since he has been in detention. He has also been supported by a number of other friends who visited him in prison and detention.
The Respondent submitted that Mr Singh had not undertaken further counselling on parole. The Tribunal considers this submission is disingenuous. Mr Singh was immediately taken into immigration detention on his release on parole, a release on parole made possible partly because of his good behaviour in prison. Consequently, it is hardly a fair or reasonable point to make when the Applicant has not had any chance to prove himself on parole.
It disturbed the Tribunal that some of the character submissions put forward an argument that, given Mr Singh was now married, this is a factor that reduces his likelihood of re-offending. It further disturbed the Tribunal that counsel for the Applicant included in his closing submissions, albeit as a minor point, that the fact that Mr Singh will have a fulfilling sexual relationship on release from custody is a point that should be taken into account in assessing risk to the Australian community. Whether a perpetrator is married or not married is not a germane factor in the commission of a sexual crime.
It was significant that Ms Donnan’s father gave written and oral evidence in support of his son-in-law, in the full knowledge of the offence he had committed, as did her brother Mr Leigh Donnan. It is also significant that other evidence was before the Tribunal, notably from Mr Mark Jackson, about the trust reposed in Mr Singh by people who knew him. Some other evidence and statements about the Applicant were less significant in speaking to his character because in some cases the person had only met the Applicant briefly and many concentrated more on their knowledge of, and friendship with, Ms Donnan, and the effect his deportation would have on her.
The evidence from a fellow former prisoner on how Mr Singh assisted him in prison and the fact that Mr Singh was promoted to a job within the prison which relied on a significant amount of trust, are points in his favour.
The Tribunal considers, on balance, that while there is significant evidence about the good conduct of Mr Singh when in prison, the report of the Static 99 assessment cannot be ignored. After careful balancing, I find that this primary consideration in the Direction marginally weighs against the Applicant.
Best interests of minor children affected by the decision (Paragraph 11.2)
This primary consideration is not relevant in this matter.
Expectations of the Australian Community (Paragraph 11.3)
Counsel for the Applicant submitted that although sexual offences are serious offences, there is still a discretion. The Applicant drew the Tribunal’s attention to the recent decision by Senior Member Sosso in Fabb and Minister for Immigration and Border Protection (Migration) [2016] AATA 894, at paragraphs 76 and 77:
The Respondent contends that the nature of the Applicant’s behaviour and offence is such that the Australian community would expect that he should not hold a visa.
This contention is too sweeping: if accepted then a person convicted of any sexually based offence involving a child or vulnerable person would never be granted a visa. If that were the intention of the Parliament section 501 would provide for a mandatory cancellation. In the absence of a mandatory provision, the Tribunal is required to exercise its discretion, and it would be inconsistent with the exercise of such a discretion to assume that there is no discretion to exercise.
The Respondent, in reply, submitted that Fabb was not relevant in this case because it related to an elderly man seeking entry to Australia to visit family for a short period and the past offence for which he was convicted was, in its elements, an “inappropriate kiss” more than a decade ago for which he was given a conditional discharge.
The Tribunal considers that Mr Godwin appropriately raised Fabb in the context of reminding the Tribunal that the conviction of a sexual crime does not automatically preclude a non-citizen from being granted a visa. The Tribunal, with respect, agrees with the conclusion that Senior Member Sosso came to, given that there is a discretion, it is proper to consider whether it should be exercised.
However, the decision in Fabb does not provide much assistance in considering this case, because the facts are so dissimilar. Mr Singh’s crime was a serious sexual offence; he was sentenced to a prison sentence over 12 months; and he is seeking a visa which would set him on a path to permanent residency. None of these considerations applied in the case of Mr Fabb.
The Tribunal considers that there is no difference in the Australian community’s expectations of citizens or non-citizens in regard to being law abiding. Both groups of people are expected to obey the laws of this country, just as Australian citizens are expected to obey the laws of other countries they visit. Mr Singh committed a serious offence and he has paid the penalty for it. He was duly tried and convicted, and his conviction was upheld on appeal. Mr Godwin argued that the Australian community would expect him to have the chance to rehabilitate himself. The Tribunal understands these submissions and agrees that rehabilitation has general community support.
However, the difficulty for Mr Singh is this. Non-citizens in this country are here as guests of the nation. Whatever visa they hold, it is a revocable permission to reside in this country. It is not citizenship. In Mr Singh’s case he committed a serious sexual offence when he had been in Australia for some 4 years and 9 months. He said that he was stressed at the time because of being assaulted in his cab, and because had recently broken up with his fiancée, who lived back in India. Although he had met Ms Donnan briefly just before he committed the offence, they had not commenced a relationship at the time. He acknowledged the seriousness of the crime he committed and said in his own evidence, and in submissions from his counsel, that he was shameful and remorseful.
In considering the expectations of the Australian community, I must take into account the particular circumstances of the offence. A recent case before the Tribunal, Sadiq and Minister for Immigration and Border Protection (Migration) [2016] AATA 463, also related to a taxi driver committing a crime against a female passenger. That case differed from Mr Singh’s case because Mr Sadiq lied about his conviction, whereas Mr Singh has been frank with the Tribunal. However, relevantly to this matter, Deputy President McDermott made the point that the Applicant in that case had indecently assaulted “a passenger over which he held a position of power and trust.” The elements of the offence in Sadiq was kissing the passenger and touching her breasts.
The issue of trust is an element that is pivotal to the consideration of this matter and whether the Minister’s delegate should have exercised his discretion. Mr Singh was indeed in a position of trust. He was licensed as a taxi driver. Users of taxis expect that they will be taken safely to their destination. Crucially, he abused that trust. He committed a sexual crime against his passenger when she was intoxicated. She was therefore in the category of a vulnerable person in terms of paragraph 9.1.1 (1)(b) of the Direction.
Judge Braddock said in her sentencing remarks:
You committed the offence during your employment as a taxi driver and it is right to say that it is in fact a gross breach of trust. That is to say, when the complainant got into your taxi, she was entitled to assume she would be treated with care and respect and delivered safely to her address.
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She was a young woman, about 24 years old, heavily intoxicated, expecting only to be taken home. She was, as I’ve already said, really in no position to take care of herself. You did involve another person, but not in the offence. [The co-accused] was present for part of the time, and I’ve already said, I cannot accept he was only there to bring water.
But the knowledge and presence of another man is, in my view, degrading to a victim of a sexual offence. I do not require expert evidence or a victim impact statement to conclude that the psychological effects on the complainant will be considerable, damaging and long lasting. She has already had to undergo the process of screening for disease.
…
Your conduct may cause someone then to fear taking a taxi home when they need to. It is not possible to say what effect in the long term that might have, but it is a very serious consideration. Also, this conduct has a very damaging effect upon the reputation of all honest taxi drivers in Western Australia.
The Tribunal concludes that the manifest betrayal of trust committed by Mr Singh in taking sexual advantage of a drunken woman who had an expectation to believe she was safe, weighs heavily against the Applicant in this primary consideration.
Other considerations (Paragraph 12)
Paragraph 12 of the Direction requires decision-makers to consider four other factors (other considerations) when considering whether a visa should be refused or cancelled.
International non-refoulement obligations (Paragraph 12.1)
This other consideration is not relevant in this case. No evidence was advanced that Mr Singh would be at risk of harm if he returns to India.
Impact on family members (Paragraph 12.2)
This matter is relevant, and was accepted as such by the Minister’s delegate. Significant evidence was brought before the Tribunal of the effect on Ms Donnan if her husband is refused a visa and, as a consequence, deported.
The Applicant’s counsel submitted that the Tribunal should not only treat this factor as a consideration, but should treat it as a primary consideration.
There was significant written and oral evidence brought about Ms Donnan. She has had a long and successful business career spanning several states. She is active in her community and in supporting sporting organisations. She has loving family and a wide circle of friends who all consistently attest to her good character.
In terms of her own character, the Tribunal notes that from an early stage of her relationship with Mr Singh, Ms Donnan was aware of the charge brought against him. Notwithstanding this, when she had a choice, she not only supported him but went on to marry him. She visited him regularly when he was in prison, which involved long journeys, and since he has been in detention. She took other of her, and their, friends to see him. She, in short, has been very good for him. The Tribunal considers she has been a significant force for good in his rehabilitation and in Mr Singh realising how wrong his offence was.
She told the Tribunal that, if Mr Singh’s application is not granted, she intended to relocate to India to be with him. The Tribunal had before it several statements about the effect this would have on her – it is clear that there would be a significant effect on Ms Donnan in her career, in her relationships with friends and family, and financially. Mr Wolfers’ professional opinion, having extensively assessed her over several sessions, was that she would also be significantly affected psychologically. Evidence was given that Mr Singh’s family in India were not supportive of his marriage and would not welcome her.
These are factors that the Tribunal does take into account. But this is not a primary consideration. It is stipulated in the Direction as an other consideration. Ms Donnan knew when she decided to continue her relationship with the Applicant that the outcome may be charge, conviction, and imprisonment. That is what occurred. She also knew from the very beginning of their relationship that he held a temporary visa. In considering whether or not Mr Singh should be granted a visa which would effectively set him on the path to permanent residence, in spite of being convicted of this serious offence, the Tribunal must concentrate principally on the Applicant’s own character, not the effect an adverse decision may have on another person, relevant though that consideration is.
In relation to this other consideration, the Tribunal finds Ms Donnan would be adversely affected by a decision to refuse to grant Mr Singh a visa.
Impact on victims (Paragraph 12.3)
The Tribunal notes what Judge Braddock said in her sentencing remarks, and set out above, about the effect on the complainant. The Tribunal also notes that the Applicant is subject to a restraining order not to contact or approach the complainant. Mr Singh gave evidence that he had apologised to the victim though the prison chaplain, and the Tribunal believes he was genuine in that.
The Applicant is contrite and the Tribunal had no evidence from the victim, or on her behalf, before it. However, the Tribunal cannot ignore the sentencing Judge’s conclusions where Her Honour said the “psychological effects...will be considerable, damaging and long lasting.” The Tribunal must also reiterate that the very fact that the offence was committed by a person in a job that placed him in a position of trust cannot be discounted.
This other consideration weighs against the Applicant.
Impact on Australian business interests (Paragraph 12.4)
This other consideration relates to the impact if a non-citizen’s visa is refused on the delivery of a major project or important service in Australia and is not relevant to this matter.
CONCLUSION
Refusal of a visa, especially to someone who is now married to an Australian citizen, is not a matter to be taken lightly. The Tribunal has carefully considered all the evidence before it, in writing and at hearing. There are some factors that weigh in favour of the Applicant. He is, in the Tribunal’s estimation, a person who now realises the magnitude of the crime he committed and for which he was sentenced.
The Court imposed a significant sentence. Mr Singh’s rehabilitation has not been able to be tested in the community on parole because of his detention but the Static 99 assessment indicates that he has a “low to moderate risk” of reoffending. Australians have a low tolerance for visa applicants who have committed serious crimes while guests of the nation, and, in my view, that lack of tolerance is amplified by the particular circumstances of this case where it involved a major betrayal of trust.
The Direction makes clear that not every consideration is of equal weight. The Applicant committed a serious sexual crime against a vulnerable member of the community when he was in a position of trust and power over that person. On an objective and well-established assessment measure, there is some, even if it may be ‘moderate to low’, risk of the Applicant re-offending. I conclude that the Australian community has a very low tolerance for this type of conduct by any person, and especially by a person in Australia as a guest on a temporary visa.
The Tribunal finds, pursuant to section 501(6)(a) of the Migration Act 1958, that Mr Amrit Pal Singh does not pass the character test.
The Tribunal further finds that the Minister’s delegate correctly exercised his discretion to refuse to grant Mr Amrit Pal Singh a Partner (Temporary)(Class UK) visa under section 501(1) of the Migration Act 1958.
DECISION
The Tribunal affirms the decision of the Minister’s delegate dated 23 September 2016 and conveyed to the Applicant on 28 September 2016.
85.
86.
I certify that the preceding 84 (eighty four) paragraphs are a true copy of the reasons for the decision herein of D. J. Morris, Member
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Administrative Assistant
Dated 19 December 2016
Date of hearing 5 & 6 December 2016 Counsel for the Applicant
Representative for the Applicant
Mr D Godwin
Dr E Hugo
Representative for the
RespondentMs A Ladhams
Solicitors for the Respondent
Australian Government Solicitor
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2
0