Singh and Minister for Immigration and Border Protection (Migration)
[2016] AATA 714
•31 August 2016
Singh and Minister for Immigration and Border Protection (Migration) [2016] AATA 714 (31 August 2016)
Division
GENERAL DIVISION
File Number(s)
2016/3144
Re
Palwinder Singh
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Professor M McGrowdie, Senior Member
Date 31 August 2016 Date of written reasons 15 September 2016 Place Sydney The decision of the Delegate of 20 May 2016 is affirmed.
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Professor M McGrowdie, Senior Member
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – visa refusal – application for partner visa – failure to pass character test – substantial criminal record – discretion to refuse Applicant's visa – Ministerial Direction no 65 applied – protection of the Australian community – seriousness and nature of the relevant conduct – the risk conduct may be repeated – expectations of Australian community – impact on victims of Applicant’s criminal conduct – impact on Applicant’s family – decision under review affirmed
LEGISLATION
Migration Act 1958 ss 499(1), 501(1), (6)
SECONDARY MATERIALS
Ministerial Direction No. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Professor M McGrowdie, Senior Member
15 September 2016
GENERAL BACKGROUND
Mr Palwinder Singh (the Applicant) is 28 years old and has been living in the Sydney region.
He is from India where he is a citizen and has been residing in Australia since February 2008, initially as the holder of a student visa.
Further student visas were granted with the most recent visa being a Temporary Business Entry visa which was valid to 11 April 2017.
This later visa was automatically cancelled when his application for inclusion on an Employer Nominated (Permanent) (Class EN) Visa (the Visa) was refused on character grounds.
The application for the Employer Nominated visa was part of his wife’s Employer sponsored visa, that is, he was included as a family member on her employer nominated application for a permanent employer sponsored visa.
The Applicant’s application was refused on 20 May 2016, upon the basis that a Delegate of the Minister was not satisfied that the Applicant passed the character test under s 501(1) of the Migration Act 1958 (the Act) and further, that the Ministerial Direction 65 (applicable under section 499 of the Act), be exercised to refuse the application.
By application made on 16 June 2016, the Applicant applied to the Tribunal for a review of that decision.
CRIMINAL RECORD
On 12 September 2011 the Applicant was convicted of two offences as follows:-
(a)Assault Occasioning Actual Bodily Harm (Domestic Violence) and was released on a bond to be of good behaviour for 12 months; and
(b)Common Assault and was fined $1,200.
Further, on 31 January 2014 the Applicant was convicted of Stalk/Intimidate Intend Fear Physical Harm (Domestic) but without conviction and placed on a bond to be of good behaviour for 12 months.
I will explain further the circumstances of those offences.
At the time of the offences in August 2011 the Applicant had been married to his wife for about one year, however, they were living apart at the time of the incidents. The Applicant’s wife is the primary Applicant of the current visa application.
They had met some years beforehand and became boyfriend and girlfriend. They continued as such even after marriage for a period of time.
This may have facilitated some advantage in respect of a visa application or applications, with the Applicant and his wife commencing to live together in 2012 and the Applicant becoming a dependent of his wife.
The Applicant’s wife had moved out of their residence about one week before the incident in August 2011.
In the early hours of the morning of 27 August 2011, the Applicant went to visit his wife at her residence, and looking through the window, observed her hugging and kissing another man. When the Applicant had been let inside, the Applicant roughly attempted to remove the man from the area. He then slapped his wife’s face several times.
The Applicant’s wife suffered swelling with a large haematoma on the side of her head. She was taken to hospital by ambulance and police were unable to take a statement.
The Applicant and his wife resumed cohabitation about five months after these events.
It would then seem that at the time of the Court Orders made in January 2014, the Applicant had, whilst living with his wife, become involved with another woman, Ms L, who was living in the same apartment block.
In October 2013, the Applicant became suspicious that Ms L was having a relationship with another man. The Applicant spoke abusively to Ms L and later sent her text messages which were abusive and threatening.
The Applicant was fined without conviction and was directed to enter into a good behaviour bond for 12 months, that is to January 2015, with the Applicant’s acceptance to take prescribed medication and counselling.
The Applicant attended Ms Eloisa Mulet, a registered psychologist, for six counselling sessions. She has provided a report that counselling addressed anger issues and notes that the Applicant took natural medication for stress and anxiety.
Ms Mulet gave evidence by telephone. She said she could not provide an opinion on the risk of re-offending because she was no longer treating the Applicant, and she was not a forensic psychologist.
Apparently the sessions attended met the requirement of the Applicant’s bond requirements and Ms Mulet’s report of 10 February 2016 was obtained in connection with the Applicant’s application for the visa.
The Applicant has also attended Mr Zaid Crouch, accredited mental health social worker, of New Vision Psychology. Mr Crouch provided a report and gave evidence by phone.
The Applicant attended four sessions with Mr Crouch. The Applicant’s wife, who he has resided with since about five months after the first incident, attended one of the sessions. The sessions were in 2016.
The Applicant is now an Uber driver and sometimes deals with difficult passengers. He reported to Mr Crouch that he has been able to do so effectively and manage anger issues.
Mr Crouch said that he concentrated in attempting to provide understanding on the Applicant’s part that life is not always perfect.
Mr Crouch expressed the opinion that the events in 2011 and 2013 were isolated incidents and the Applicant now has a greater awareness of what triggers his anger and how to deal with these triggers.
During cross-examination, Mr Crouch said there is always a risk of re-offending, that is, there is a risk of anyone offending. When asked if there was a greater risk with the Applicant, he indicated that he was not in a position to say other than that the Applicant could be said to have developed a skill-set to deal with situations where anger could be provoked.
The Applicant’s wife gave evidence that they were now in a happy relationship. She tended to take blame for the events of 2011 which led to the charges.
Ms L, the victim of the October 2013 offence also gave evidence. She said that the Applicant was now a better person and they are now friends. She now has a partner but said she re-established contact with the Applicant after the expiration of the Apprehended Violence Order issued against him.
Mr K, a long term friend of the Applicant and also an Uber driver also gave evidence. Mr K is married to Ms L. He attested to the Applicant’s worthiness.
Included in the “G-Documents” is a report of Mr Tim Watson-Munro, a consultant forensic psychologist, who saw the Applicant in November 2013 and was referred by the Applicant’s then solicitor. He provided a report dated 22 November 2013 and recommended six months of Cognitive Behaviour Therapy. This does not seem to have occurred and it is a little unclear as to why the report was obtained at the time.
It was put to the Applicant in cross-examination that the Applicant had been circumspect in the history he provided to Mr Crouch.
It was also put that in his current visa application he had provided an abbreviated and not entirely accurate account of his offences. For instance he stated that the incidents in 2011 occurred in “our home” when in fact the Applicant and his wife were separated and lived apart.
Also, it was put to the Applicant that he had marked an incoming passenger card as having no convictions.
These were items of credit which, whilst not determinative, really are of no assistance to the Applicant.
Overall, I have the impression that the Applicant has sought, and organised, his affairs around maintaining a visa to continue to reside in Australia.
Whilst he has studied and worked, there appears to me to be no real positive forward direction in the Applicant’s work and studies in Australia. This is not in any way to suggest that work as an Uber driver is anything other than commendable. What I do mean to say is that the Applicant has not steadily established himself in a trade, skill or enterprise of a continuing kind.
SECTION 501(1)
The Applicant’s Visa application was refused on the basis that the Applicant did not satisfy the Delegate that he passed the character test, and the Delegate exercised their discretion under section 501(1) of the Act to refuse the Applicant’s Visa application.
The Delegate found that the Applicant did not pass the character test as, in accordance with section 501(6)(d)(i), there was a risk that if the Applicant were to remain in Australia, there is a risk that he would “engage in criminal conduct…”.
Similarly, and for the same reasons, I am not satisfied that the Applicant passes the character test.
The Applicant, in my view, has not demonstrated that he is unlikely to re-offend.
This is a ‘positive’ matter to be considered. Even though showing that the Applicant has not re-offended since October 2013 and attended some counselling it still leaves open the question as to whether there is a risk of the Applicant engaging in criminal conduct particularly the sort for which he was previously charged.
The Applicant was on a bond until as recently as January 2015. The offences were of a kind which involved a degree of violence or threat of violence. They were both against women who had an intimate relationship with the Applicant, and with whom the Applicant had felt anger. The Applicant’s conduct was beyond anything that could be considered reasonable or be excused in the circumstances in which he found himself.
The evidence of Ms Mulet and Mr Crouch did not go so far as to suggest that a risk could be excluded in considering the possibility of re-offending.
In my view, having regard to the nature of the charges, the minimal efforts towards rehabilitation (part of which were to comply with bond requirements and to advance his prospects of obtaining a visa) and the past course of his relationship with his spouse, there is a risk that if the Applicant were to remain in Australia there is a risk that the Applicant would engage in criminal conduct of the kind for which he was previously charged.
Given the finding that the Applicant does not meet the character test, the discretion to refuse to grant the Visa is enlivened. In deciding whether to exercise this discretion, I must first apply the considerations under Part B of the Direction to the facts in this case.
THE DIRECTION
The primary considerations are contained in Part B of the Direction under Clause 11.
Clause 11(1) provides that:
“In deciding whether to refuse a non-citizen’s visa, the following are primary considerations:
a) Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Expectations of the Australian community.”
Protection of the Australian Community
In considering the protection of the Australian community, the matters referred to in Clause 11.1(1) are relevant. These include:-
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
It is indicated in the clause that there is a low tolerance for visa Applicants who have engaged in criminal or other serious conduct.
There are mandatory considerations when viewing the nature and seriousness of the criminal offending, or other serious conduct to date (clause 11.1.1). Violent crimes are viewed seriously. Although the Applicant’s previous conduct might not be called “brutal” there were elements of actual or threatened violence.
The cumulative effect of repeated offending and the frequency of the non-citizen’s offending must, among other matters, be considered. Here there is repeated conduct of an unacceptable kind within a short space of time. The cumulative effect of the Applicant’s repeated conduct of a similar kind, although the second incident didn’t involve actual physical violence, shows that the first was not of an aberrant or isolated kind.
The best interests of minor children in Australia
There are no minor children involved with regard to this matter.
Expectations of the Australian Community
This consideration includes whether the Australian community would expect that the person should not be granted a visa having regard to the nature of the character concerns or offences (clause 11.3).
I consider that in this case there would be an expectation that a visa would not be granted. As stated in the Preamble under the heading “Principles” in clause 6.3, for a non-citizen to remain in Australia is a privilege. Being able to remain in Australia is based on an expectation that the non-citizen will not cause or threaten harm to individuals in the Australian community.
There is a risk that such an expectation will not be met if the Applicant were to be granted a (further) visa and accordingly there would, in my view, be an expectation of the Australian community that the application for a visa should be refused both because of past conduct and the risk of the Applicant re-offending.
In considering risk, the considerations contained in clause 11.1.2 are relevant and are to be taken into account.
They are firstly, information and evidence on the risk of the non-citizen re-offending, and second, evidence of rehabilitation.
I consider that on balance the evidence does suggest that there is a risk and the efforts at rehabilitation since the charges have been minimal.
The fact that there was a further and separate charge following the first offences does not assist the Applicant. The Applicant does not appear to have implemented or engaged in the treatment plan formulated by Mr Watson-Munro in his treatment plan for weekly cognitive behaviour therapy for six months following the offence in 2013. There were the sessions with Ms Mulet in 2014. However, these followed the events which led to the “second” offences in 2013 (dealt with in January 2014) and became part of the Applicant’s bond undertaking to have therapy.
To my mind, the evidence appears to suggest that the Applicant’s attempts at rehabilitation have been relatively minimal.
I turn now to the “other considerations” in the Direction.
OTHER CONSIDERATIONS
There are no International non-refoulement obligations nor is there any direct impact on Australian business interests.
In relation to “Impact on Family Members”, there would be an impact upon the Applicant’s wife. They appear to have been in an ongoing relationship whereby they are living together and the Applicant has been included as a family member on the application by the Applicant’s spouse for an Employer Nominated visa. The effect upon the Applicant’s spouse must be considered.
The Applicant’s wife does not appear to be a dependent of the Applicant and has embarked upon a career in Australia.
Having heard from the victims of the Applicant’s conduct for which he is charged, I do not believe that there would be an adverse effect on either of them at this time and this includes the Applicant’s wife.
CONCLUSION
Weighing all these matters together, the balance is not in favour of the grant of a visa and I affirm the decision of the Delegate of 20 May 2016.
I certify that the preceding 69 (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Professor M McGrowdie, Senior Member
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Associate
Dated 15 September 2016
Date(s) of hearing 15 & 16 August 2016 Solicitors for the Applicant Turner Coulson Immigration Lawyers Solicitors for the Respondent Australian Government Solicitor
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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