Singh and Minister for Immigration and Border Protection (Migration)

[2016] AATA 628

Singh and Minister for Immigration and Border Protection (Migration) [2016] AATA 628 (23 August 2016)

Division	GENERAL DIVISION
File Number(s)	2016/2978
Re	Birendra Singh
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Dr L Bygrave, Member
Date	23 August 2016
Place	Sydney

The Tribunal affirms the decision under review.

........................[sgd]............................

Dr L Bygrave, Member

CATCHWORDS

MIGRATION – Visa refusal and cancellation – character test – where applicant has substantial criminal record – whether discretion should be exercised – where primary considerations weigh against applicant – decision under review affirmed.

LEGISLATION

Migration Act 1958 (Cth) ss 500, 501

CASES

Do and Minister for Immigration and Border Protection (Migration) [2016] AATA 390

SECONDARY MATERIALS

Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Dr L Bygrave, Member

22 August 2016

INTRODUCTION

1. The applicant, Mr Birendra Singh, is a 53 year old citizen of the Republic of Fiji.

2. Mr Singh first arrived in Australia on 14 August 1988 as the holder of a V12 visitor visa accompanied by his wife (at that time) and his daughter. He has since remained onshore in Australia on various bridging visas.

3. Sponsored by his (now) wife, Ms Aroon Singh, Mr Singh lodged an application for a Partner (Temporary) (Class UK) visa on 25 June 2010.

4. On 31 May 2016, the Minister refused to grant Mr Singh a visa under s 501(1) of the Migration Act 1958 (Cth) (the Act).

5. Pursuant to s 500(1)(b) of the Act, Mr Singh applied to the Tribunal for a review of the Minister’s decision on 9 June 2016.

6. The matter was heard in Sydney on 4 August 2016. Mr Singh attended the hearing in person and was represented by a Migration Agent.

   RELEVANT LEGISLATION AND ISSUES

   The power to refuse a visa

7. Under s 501(1) of the Act, the Minister may refuse to grant a visa if the applicant does not pass the character test as defined in s 501(6) of the Act.

8. Relevantly, s 501(6)(a) of the Act prescribes that a person will not pass the character test if they have a ‘substantial criminal record’. The phrase ‘substantial criminal record’ is set out in s 501(7), and includes circumstances where a person has been sentenced to a term of imprisonment of 12 months or more.

9. The Minister refused Mr Singh’s visa on character grounds because he has a ‘substantial criminal record’.

10. The determinative issues for the Tribunal in this matter are:

    (a)whether Mr Singh passes the character test as defined in s 501 of the Act; and

    (b)if not, whether the decision to exercise s 501(1) to refuse Mr Singh’s visa is the preferable decision.

    Does Mr Singh pass the character test as defined in s 501 of the Act?

11. Mr Singh has a criminal history in Australia spanning the period of 1993 to 2010. Mr Singh’s most serious offences and sentences are:

    ·in 2002, he was imprisoned for two months and 15 days for the cancellation of home detention;

    ·in 2008, he was charged with using a ‘false instrument with intent’, having a ‘false instrument with intent to use’, participating in ‘criminal group [to] assist criminal activity’, and having ‘goods in personal custody suspected [of] being stolen’, and was imprisoned for nine months; and

    ·in 2010, he was charged with using a ‘false instrument with intent’ and having ‘goods in personal custody suspected [of] being stolen’, and was imprisoned for 12 months.

12. Mr Singh has been imprisoned for a period of 12 months and so has a ‘substantial criminal record’ as defined in s 501(7) of the Act. I am therefore satisfied that Mr Singh does not pass the character test as set out in s 501(6) of the Act.

    Is the decision to exercise s 501(1) of the Act to refuse Mr Singh’s visa the preferable decision?

13. When considering whether to revoke the visa refusal decision, I must have regard to the guidance contained in Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction).

14. The Direction sets out the policy of the government and includes a number of introductory statements including the expectation that non-citizens will obey Australian laws and behave in accordance with Australian community values and standards if they wish to retain the privilege of coming to or remaining in this country.

15. Pursuant to the Direction (cl 6.2(3)), the Principles set out in cl 6.3 of the Direction provide a framework to approach deciding whether to refuse a visa under s 501(1) of the Act. The Principles include:

    (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 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 consideration may be insufficient to justify not cancelling or refusing the visa.

    …

    (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 non­citizen’s visa should be cancelled, or their visa application refused. [emphasis added]

16. Informed by the Principles, I must take into account the primary considerations in Part B of the Direction, in determining whether to refuse a non-citizen’s visa. The primary considerations are:

    (a)Protection of the Australian community from criminal and other serious conduct;

    (b)Best interests of minor children in Australia affected by the decision; and

    (c)Expectations of the Australian community.

17. Part B also sets out other considerations which must be taken into account where relevant.

18. Cl 8(2) of the Direction stipulates that information and evidence from independent and authoritative sources should be given appropriate weight in applying the primary and other considerations.

    Protection of the Australian community

19. Clause 11(1) of the Direction states the government’s commitment to protecting the Australian community from harm at the hands of non-citizens and requires that I consider:

    (a)the nature and seriousness of the applicant’s conduct to date; and

    (b)the risk to the community should the applicant commit further offences or engage in other serious conduct.

20. Mr Singh’s Australian National Police Certificate dated 5 June 2015 sets out his offences from 1993 to 2010. During the Tribunal hearing, Mr Singh acknowledged that he had committed the following offences:

    ·in 1993, ‘drive with high range prescribed concentration of alcohol’, fined $700 and disqualified from driving for two years;

    ·in 1995, ‘common assault’, proven without conviction and no further penalty;

    ·in 1996, ‘obstruct police to prevent lawful apprehension’, good behaviour bond for two years;

    ·in 2002, ‘breaches to sentences imposed’, imprisoned for a period of two months and 15 days;

    ·in 2008, ‘use of a false instrument with intent’, ‘have false instrument with intent to use’, ‘participate in a criminal group assist criminal activity’, ‘goods in personal custody suspected of being stolen’, imprisoned for nine months;

    ·in 2008, ‘break enter building (steal)’, 100 hour community service order; and

    ·in 2010,  ‘possess thing like Australian drivers license with intent to deceive’, ‘good in personal custody suspected being stolen’, ‘use false instrument with intent’, imprisoned for 12 months.

21. Since being released from prison in January 2011, Mr Singh has not committed any offences.

22. At the Tribunal hearing, Mr Singh spoke about how a cycle of depression from events in his personal life and drinking alcohol had contributed to his offending behaviour. He took responsibility for his alcohol consumption and the offences he committed, and expressed sincere remorse for his actions.

23. Mr Singh has reduced his alcohol consumption since 2010 and told the Tribunal that he has not consumed alcohol from when he was diagnosed with diabetes in 2011.

24. Mr Singh has worked in the construction industry and in the past year, he and his wife have started a small business cleaning bricks. The business has been increasingly successful.

25. I am satisfied that the nature of Mr Singh’s offences over a 17 year period, as well as the seriousness of several of his offences, is a matter of serious concern. However, as I am required to examine the ‘applicant’s conduct to date’, I also find that the seriousness of Mr Singh’s offending is mitigated by his positive behaviour since 2011.

26. I am also required to consider ‘the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct’.

27. At the Tribunal hearing, Mr Singh talked about how he had sought to turn his life around since meeting his (now) wife in 2007 and marrying her in 2010. He noted that the cycle of depression and alcohol consumption that triggered his past offending was no longer an issue and that he was able to confide in his wife if he had worries.

28. Ms Singh also told the Tribunal that she believed her husband would not commit further offences in the future as they ‘worked out issues together’. She said Mr Singh had changed since 2010 and that he is a ‘good person’ who worked, went to church, cooked and cleaned the house, helped in the church community and no longer drinks alcohol. In a statement dated 30 December 2015, Ms Singh noted that, ‘for the past 5 years…, he has become a changed man and I am very proud of him to have achieved this change after all these years’.[1]

    [1] Exhibit G document G17.

29. A report by Ms Laba-Sarkis (counsellor) dated 29 December 2015 confirmed that Mr Singh’s offending had occurred at a low point in his life when he was addicted to alcohol. She noted that Mr Singh felt he has rehabilitated and stated that he is ‘remorseful and is dedicated to a new lifestyle and way of living with his wife’s support and working in a new business.’ She also remarked that Mr Singh is ‘on the right path and is dedicated and willing to work hard in supporting his family and becoming the best person he can…’ [2]

    [2] Exhibit G document G16.

30. Mr Singh has a 17 year history of offences. His rehabilitation over the past five years is commendable and clearly related to his strong relationship with his wife and ceasing alcohol consumption. However, based on the evidence before me and notwithstanding his rehabilitation over the past five years, I cannot guarantee that Mr Singh will never offend or engage in other serious conduct in the future.

31. The protection of the Australian community therefore weighs against revoking the decision to refuse Mr Singh’s visa.

    Interests of minor children in Australia affected by the decision

32. As Mr Singh does not have any children under the age of 18 years, this primary consideration is not relevant to this matter.

    The expectations of the Australian community

33. The Direction at cl 11.3(1) states that the Australian community expects non-citizens to obey the law. It also notes that the nature of the character concerns or offences are such that the community would not expect the decision-maker not to grant a visa.

34. The Direction does not refer to studies or other evidence which would enable me to formulate a precise view of public attitudes and values. I note a recent decision by the Tribunal in Do and Minister for Immigration and Border Protection (Migration) [2016] AATA 390 [at 23], with which I concur, which states:

    A decision-maker is, to some extent, required to guess at the community’s expectations… I must form my view having regard to contents of the Direction (which is, after all, a statement prepared by the community’s elected representatives), the sentencing remarks of the court and common sense. As I begin my deliberations, I assume the Australian community would be fair-minded and mature… The community would certainly not be vengeful. The applicant has already been punished for his offence, and the community would not want to see visa [refusal]…misused to inflict further punishment. I would also expect the community to be conscious of the length of time the applicant has lived in Australia and other circumstances which might assist the community to form a proper judgment about the individual and what should be done.

35. Mr Singh has lived in Australia for 28 years and has not returned to Fiji during this period. He has committed a number of serious offences, including fraud, for which he has been punished by imprisonment. His most recent sentence was 12 months imprisonment in 2010–2011.

36. Since leaving prison in January 2011, he has worked and maintained a committed relationship with his wife. They began a small family business a year ago which was becoming financially successful prior to Mr Singh being interned in Villawood in May 2016.

37. Notwithstanding his positive rehabilitation over the past five years, I am satisfied that the Australian community expectations would be that a person with a 17 year criminal history should not be permitted to remain in Australia. I am therefore satisfied this primary consideration counts against the applicant.

    Other considerations

38. While the primary considerations carry particular weight, the Direction acknowledges at cl 12 that other considerations might also be relevant.

39. As I have no evidence of international non-refoulement obligations or impact on victims, the only other considerations of relevance in this matter are the ‘impact on family members’ and ‘impact on Australian business interests’.

40. Clause 12.2 requires that I consider the impact of refusing Mr Singh’s visa on immediate family members in Australia, where those family members are Australian citizens.

41. Mr Singh has familial ties to Australia. Ms Singh has been in Australia since 1988, when she came from Fiji to Australia on a student visa to study commerce at university. Ms Singh is now an Australian citizen and works as a nurse in an aged care facility. Ms Singh gave evidence to the Tribunal that she was heavily dependent on her husband emotionally and socially. Mr and Ms Singh are also financially dependent on each other as they have a mortgage that requires two incomes.

42. The report of Ms Laba-Sarkis stated that Ms Singh is fearful of her husband’s immigration status and is suffering from depression and nightmares. She observed that Ms Singh’s symptoms ‘will further increase if her husband was to leave the country and I believe her mental health will decrease without her husband’s presence, assistance and support’.[3]

    [3] Exhibit G document G16.

43. Mr Singh told the Tribunal that his parents are deceased but he has siblings in Fiji. While he has not returned to Fiji since 1988, he speaks occasionally with his siblings by phone. Ms Singh also has siblings in Fiji who she speaks with by phone and she visits every year for one-two weeks. She has only recently returned from a two week trip to Fiji to visit her family.

44. The refusal to grant Mr Singh a visa will clearly impact on his wife and their life together in Australia. However, this impact is alleviated by both Mr and Ms Singh having family who reside in Fiji. I note that Ms Singh, in particular, has maintained relationships with her extended family by returning to Fiji every year.

45. Given Mr Singh’s experience in the construction industry, there is no reason to doubt that he would be in a position to live and work in Fiji. Mr Singh was diagnosed with diabetes in 2011 but told the Tribunal that he manages his diabetes through diet and exercise. I therefore find that there are no substantial barriers that would prevent him resuming his life in Fiji.

46. The Direction at cl 12.4(1) states I must consider the impact on Australian business interests where the refusal of a visa would ‘significantly compromise the delivery of a major project or delivery of an important service in Australia’. While Mr Singh established a family business with his wife a year ago, their business does not fall into the category of a major project or important service and so I find this consideration is not relevant in this matter.

    CONCLUSION

47. I have already indicated the first and third primary considerations weigh against Mr Singh. The second primary consideration is not relevant. The other considerations, where relevant, do weigh in favour of Mr Singh, but the weight I give these considerations is low and do not outweigh the primary considerations. In these circumstances, it is not appropriate for me to revoke the refusal of visa decision. The decision under review must therefore be affirmed.

    DECISION

48. The Tribunal affirms the decision under review.

I certify that the preceding 48 (forty -eight) paragraphs are a true copy of the reasons for the decision herein of

...................[sgd]............................

Associate

Dated 23 August 2016

Date(s) of hearing	4 August 2016
Advocate for the Applicant	Anil Keshary
Solicitors for the Applicant	Lapen Migration Services & Consultancy
Advocate for the Respondent	Priscilla Blackadder
Solicitors for the Respondent	Sparke Helmore