Singh and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Singh and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1237 (28 May 2024)
Division:GENERAL DIVISION
File Number: 2024/1417
Re:Gurpreet Singh
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date:28 May 2024
Place:Melbourne

The decision dated 4 March 2024 not to revoke the mandatory cancellation of the Applicant’s Skilled Independent (Subclass 885) visa is set aside and remitted with the direction that there is another reason why the mandatory cancellation should be revoked.
........................[SGD]........................
Dr Stewart Fenwick, Senior Member
Catchwords
MIGRATION – mandatory cancellation of visa – national of India – Skilled Independent (Subclass 885) visa – failure to pass character test – single conviction for violent offending – Applicant on parole – whether another reason mandatory cancellation should be revoked – Ministerial Direction No. 99 applied – ties to Australia and best interests of minor children considered – decision set aside and remitted
Legislation
Migration Act 1958 (Cth)
Cases
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Secondary Materials
Direction No. 99 — Migration Act 1958 — Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
28 May 2024
BACKGROUND

Mr Singh applied on 11 March 2024 for review of a decision of a delegate of the Respondent Minister, dated 4 March 2024, not to revoke the cancellation of his Skilled Independent (Subclass 885) visa. This decision was made under s 501CA(4) of the Migration Act 1958 (the Act) following the making of submissions by the Applicant
The cancellation of Mr Singh’s visa arose from the mandatory cancellation provision of the Act, s 501(3A). In short, he was found to have a substantial criminal record as a result of being convicted in the County Court of Victoria on a charge of recklessly cause serious injury, for which he was sentenced to a term of imprisonment of six and a half years. The Applicant was released into immigration detention upon obtaining parole, having completed three years and six months of his sentence.
Mr Singh arrived in Australia in 2007 on a student visa. He subsequently married and his wife and two young children are Australian citizens. His daughter is currently aged eleven and a half years, and his son is aged five and a half years. At the time of his offending, the Applicant was the owner and operator of a tip truck. The incident in which the offence occurred arose from a meeting at which a discussion was to be held over terms of repayment of a debt owed to a former close personal friend.
The Applicant was represented at the hearing, and lodged a Statement of Facts, Issues and Contentions (ASFIC), with a number of attachments, including witness statements. A supplementary expert report by Mr Jeffrey Cummins, consulting clinical and forensic psychologist, dated 23 April 2024 (and a brief addendum) were also lodged, together with confirmation of a future appointment for a mental health care plan with a local General Practitioner (Exhibit A1).
The Respondent lodged G documents pursuant to s 500(6F) of the Act (G) and Supplementary G documents (SG).
Mr Singh gave evidence at the hearing and the following witnesses also gave evidence, some with the assistance of an interpreter in the Punjabi language:
(a)Mr Cummins;
(b)Ms Surmeet Gill, the Applicant’s wife;
(c)Mr Malvinder Singh, a friend;
(d)Mr Sukhdeep Singh, a cousin;
(e)Ms Parmdeep Kaur, a relative of Ms Gill; and
(f)Ms Paramjit Kaur, a friend of Ms Gill.
LEGISLATION
As noted, s 501(3A) of the Act provides for the mandatory cancellation of a person’s visa in circumstances where the Minister is satisfied that they have a substantial criminal record and are serving a sentence of imprisonment. One of the defined ways in which a substantial criminal record arises is where a person has been sentenced to a term of imprisonment of 12 months or more (s 501(6)(a); s 501(7)(c)).
Provision is also made for the revocation of a mandatory cancellation decision, as noted. This may be where a decision-maker is satisfied that a person does pass the character test, or in circumstances where ‘there is another reason why the original decision should be revoked’ (s 501CA(4)(b)(ii)). Direction No. 99 ‘Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (the Direction) provides guidance that a decision-maker must take into account in considering revocation (which I will address in these reasons below). I am not confined only to these specific considerations in determining whether another reason exists to revoke the cancellation decision.
These considerations are informed by a set of Principles (5.2):
(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)   Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)   The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)   Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)   With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)   Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
ISSUES
I have considered the national criminal history check included in the materials (G3), which confirms that Mr Singh has been sentenced to a term of imprisonment in excess of 12 months. I note further that both parties submit that the Applicant fails the character test on account of his substantial criminal record.
Accordingly, I find that Mr Singh fails the character test as defined under the Act, and I must consider whether there is another reason to revoke the mandatory cancellation of his protection visa.
PRIMARY CONSIDERATIONS
Protection of the Australian community
The nature and seriousness of the conduct
Mr Singh was found guilty in a jury trial on 13 February 2020, and was subsequently sentenced after a plea hearing in the County Court of Victoria on 8 May 2020 (G4). I quote briefly from the remarks of the sentencing judge:
(a)Mr Singh had borrowed a sum in excess of $20,000 from the victim, his close friend and sometime housemate, and had repaid $8,000 at the time of the offence;
(b)after a 12 month extension to the loan, the victim sought payment and Mr Singh and another gentleman made abusive phone calls and ultimately met the victim at a beachside location;
(c)in a period of time estimated to be only one minute, Mr Singh and the other gentleman attacked the victim with metal objects including a wheel brace and the Applicant struck the victim in the head causing a serious injury and also in other blows broke bones while the victim was protecting himself, with the victim also causing injury to Mr Singh’s mouth after wresting the wheel brace from the Applicant [11];
(d)the victim suffered a skull fracture repaired with metal plates and his injuries were life threatening, and while making a good recovery, the victim was unlikely to regain full mobility and was undergoing counselling [15]-[17];
(e)the offending was serious and marked by intention to intimidate, together with an element of premeditation and planning, meaning that Mr Singh’s moral culpability was high [18]-[19], [21];
(f)the attack was brazen, terrifying and ferocious [22];
(g)Mr Singh had no history of substance abuse, psychological or psychiatric disorder connected to the offending, or putting him at risk of further offending [27]; and
(h)the Applicant’s expressions of remorse after the offending lacked credibility, but his prospects for rehabilitation were considered good [32], [34].
Mr Singh lodged an appeal in the Victorian Supreme Court against conviction and sentence, and the appeal failed. I summarise briefly from the reasons of the Court, dated 13 December 2021 (G25):
(a)the sentencing judge correctly emphasised the gravity of the offending and it was clear that denunciation, deterrence and just punishment carry considerable weight [90];
(b)the judge also took into account Mr Singh’s prior good character, family support and work history [91]; and
(c)the opinion of Mr Cummins was considered by the sentencing judge and did not raise any factors by way of mitigation [95].
Written and oral submissions for the Applicant acknowledge the serious nature of the offending. The revocation submission, dated 24 August 2020 (G8, 135), contends that the sentence imposed was ‘in no way at the most serious end of the scale’ given the maximum penalty of 15 years’ imprisonment [23].
The Respondent contended at the hearing that the nature and seriousness of the offending should be considered very serious and, indeed, weighs significantly against revocation, and was potentially determinative of the decision. In written submissions, contentions address the key aspects of sentencing quoted above.
The Direction identifies violent crimes as being considered very serious (8.1.1(1) a) i)) and accordingly I find Mr Singh’s offence to qualify in this category. I do not accept the prior written submission for the Applicant about the length of sentence and find, to the contrary, that Mr Singh received a quite substantial custodial sentence with a relatively lengthy non-parole period (8.1.1(1) c)). Equally, I must take account of the fact that it represents Mr Singh’s only breach of the law (8.1.1(1) d), e)).
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Mr Singh originally declined to make a substantive submission about his offending due to his then pending appeal against conviction (G8, 105). In his more recent declaration, dated 16 April 2024 (ASFIC, Annexure 4), the Applicant states that he takes full responsibility for his actions, and acknowledges its seriousness. Mr Singh also states that he was experiencing depression, was under significant pressure over the loan repayments, and that the violent outburst also arose due to the consumption of alcohol on the day, and he intends to never drink again.
Mr Singh also states that it is likely he could have managed his circumstances had he sought treatment. He has since undertaken a range of rehabilitation programs which have helped him to understand his conduct. The Applicant has learned how and where to access help, and feels more mentally stable and positive now. Mr Singh’s stated goals are to return to his family, take care of his children and provide for his wife and family by acquiring financial stability. He identifies the particular needs of his young son who faces developmental challenges.
In his evidence, Mr Singh stated that he agreed with the judge and jury and that he should have handled the situation better. He also reiterated that he had no clear memory of the incident. The Applicant stated that he had consumed three to four beers prior to meeting the victim and also acknowledged other episodes of higher level drinking, in which he would consume a bottle of whisky over a few days. He stated that outside these episodes his drinking was a relatively rare event.
Mr Singh stated he had voluntarily participated in a number of programs, and his objective was to become a better person and learn from his mistakes. He now realises for example how it is possible to be affected even by small amounts of alcohol.
In cross-examination, Mr Singh acknowledged that he had experienced stress as a result of not having enough work in his tip truck business. This had led him to stop making instalment payments on his truck. The Applicant experienced stress and consumed alcohol after his father died in 2013, and while seeking to obtain his visa, during mid-2014. Mr Singh added that while he had ceased anti-depressant medication, he was recently prescribed medication to address anxiety over this hearing.
In response to a question from myself, Mr Singh stated that he had made a booking for a mental health plan assessment by a General Practitioner (Exhibit A1) because he was being careful, and in anticipation of a positive revocation decision.
Mr Singh agreed that he had in the past failed to speak to his wife openly about financial pressures, as he did not wish to stress her out. The Applicant also stated that his drinking was somewhat hidden from the family as he did that in the bedroom.
Mr Singh was asked about his behavioural history in immigration detention (based on records in the materials, see below). He stated that he ‘used the F word’ in a dispute with staff for which he later apologised. Mr Singh considered that he had perhaps misunderstood the guidance received in a mental health consultation in which he was advised not to bottle things up. Another incident arose when his own possessions were being thrown from his room by a roommate, and to prevent his bible being thrown out Mr Singh chose to throw out a folder belonging to the other detainee. The Applicant stated that this incident prompted him to undertake a seven step anger management program.
In response to questions from myself about his employment prospects, Mr Singh stated that one of his referees Mr Eddie Sada (see further below) had really good connections and needs a good driver. Mr Singh has also spoken to his parole officer about obtaining an accreditation card for work with containers on the docks. He understood a criminal record was not an impediment for construction work and some roles on the waterfront.
In her declaration, dated 16 April 2024, Ms Gill states that she is aware that the Applicant is ‘very remorseful and full of regret’ over his offending [4]. She states further that his conduct was ‘completely out of character’ and that he had never been violent on any prior occasion [7]. Ms Gill states that her husband wishes to reintegrate himself with the family, to spend as much time as possible with the children, and to return to his business in order to provide for them [10]-[11], [14].
In cross examination, Ms Gill acknowledged that the Applicant had not been too open about the extent of issues with his business at the time of the offending, but she was aware of the debt owing.
Mr Jeffrey Cummins
Mr Cummins’ first report, dated 4 May 2020 (G8(w)), was prepared prior to the sentencing hearing. In brief, Mr Cummins expresses the view that Mr Singh’s offending was ‘situationally motivated’ and he assesses the risk of further offending based on the HCR-20 instrument [a clinical tool for assessing risk of violence], as low [47]. The report also notes a diagnosis of Adjustment Disorder which arose due to the offending incident [49].
In his second report (Exhibit A1), Mr Cummins observes that Mr Singh informed him of engaging with mental health services in immigration detention and using antidepressant medication [11]. Mr Singh also reported undertaking a course of CBT [cognitive behaviour therapy] and a seven-step anger management course. Mr Cummins records Mr Singh’s prior accounts of high alcohol use, specifically at the time of his father’s death and when awaiting a migration decision, between 2013-2014 [26]. The Applicant also drank heavily prior to his trial relating to his alleged offending [27]. Mr Cummins states that he explored the use of alcohol in relation to Mr Singh’s offending, noting that the Applicant had consumed some alcohol but did not consider himself drunk at the time of the incident [28].
I summarise other observations and conclusions from this report:
(a)Mr Singh stated that he ‘now accepted the jury verdict’ and concluded that he blacked out at the time of the offending due to shock [31]-[33];
(b)Mr Cummins confirms his conclusion the offence was situationally motivated [34];
(c)the Applicant reported gaining skills from programs and treatment also including a stress management course [36];
(d)Mr Cummins was told that the outstanding debt to the victim had been paid by Mr Singh’s brother [37];
(e)the Applicant’s risk of committing a further offence remained low (based on a fresh HCR-20 assessment), and Mr Cummins states his opinion that this result ‘for all practical purposes should be interpreted as negligible’ [35], [46]; and
(f)Mr Singh exhibited symptoms indicative of anxiety and depression but was not suffering from a mental health disorder and was no longer taking medication [41], [49].
In his evidence Mr Cummins confirmed that the Applicant had spoken about strategies for managing risk which he had learned from rehabilitation programs. Mr Cummins considered such programs as ordinarily significantly beneficial, and that the benefits are usually higher where participation is voluntary, as in Mr Singh’s case. Mr Cummins described Mr Singh’s insight into his offending as ‘complex’ due to the nature of the jury verdict, including his co-accused being acquitted. He noted that sentencing did not include a component for specific deterrence.
When asked what role Mr Singh’s family plays in his life, Mr Cummins replied that they are committed to each other as husband and wife, and a supportive family environment plays a very significant role in maintaining mental health.
In cross examination, Mr Cummins confirmed that the Applicant’s past drinking was linked to stress. He also restated his view that Mr Singh has no anger management or underlying personality issues, and described the offending as a ‘specific response to specific circumstances’. Mr Cummins did not consider Mr Singh might re-offend when faced with stresses in the future as he has ‘learnt his lesson in a comprehensive way’. Moreover, there are a number of protective factors in the Applicant’s favour including his marriage, family relations, offers of employment, no substance abuse, and no history of prior mental health treatment.

Mr Cummins was also asked about a remark in the parole suitability report that Mr Singh had not had effective communications with his wife in the past about financial stresses. Mr Cummins accepted that in such circumstances the maximum protective benefit of this relationship would be somewhat reduced.
In response to a question from myself about the apparent lowering of his risk assessment in the second report (that it was ‘negligible’), Mr Cummins pointed in particular to the Applicant’s appreciation of the reasons for sentencing. He therefore considered Mr Singh’s insight had increased, and the Applicant had also been exposed to treatment relevant to the offence.
Parole documentation
Included in the materials is a Parole Order, dated 26 September 2023, issued by the Adult Parole Board (SG1, 80-81). The date of commencement of parole is 17 October 2023. A number of terms and conditions are cited, including: reporting to community corrections; various reporting requirements as to changes of life circumstances; being under the supervision of a community corrections officer; and, attending a community corrections centre as directed. The order explains that Mr Singh remains under a sentence of imprisonment, and that the board may cancel his parole including upon any further sentence of imprisonment. From the context provided by the report discussed immediately below, I understand these to be core conditions of parole.
A Parole Suitability Assessment report dated 15 November 2022, and two Addenda, dated 19 July and 19 September 2023, appear in the materials (SG1, 164-172; SG1, 156-162). The following specific conditions are recommended should Mr Singh be released into the community:
(a)that he not consume alcohol unless approved in writing;
(b)he undergo assessment for suitability for treatment for substance abuse and submit for testing;
(c)the Applicant not contact the victim, his family members or his co-accused;
(d)he undergo assessment for participation in offender and forensic treatment services and educational programs;
(e)undertake unpaid community work unless in an approved program; and
(f)that the Applicant is ‘subject to intensive parole for the period stipulated by the Adult Parole Board’.
I note briefly additional commentary from the report:
(a)it speculates that the remorse and acknowledgement of the offending conduct are in contrast to the defence raised and the fact conviction was appeal, possibly indicative of ‘impression management for the purpose of obtaining parole’;
(b)Mr Singh would be provided with job services support;
(c)the Applicant is eligible for assessment for a post-sentence order closer to the end of his sentence term; and
(d)it remains unclear as to the exact reason for his violent behaviour, particularly given the absence of criminal history and supportive family environment, and therefore ‘stress appears to be the biggest factor in any negative behaviour’, and accordingly further engagement with a psychologist could be considered protective.
Other evidence
I note the substantial number of personal references lodged with Mr Singh’s revocation request (G8(a)-(u)). In addition to those provided by Ms Gill and other witnesses at the hearing, these other personal references are all broadly consistent in their support for Mr Singh based upon his limited criminal record and his good personal qualities, as an individual and as a family man. References are also provided by his tax agent (G8, 124), and a representative of a Punjabi cultural association (G8, 127).
The witnesses at the hearing gave character evidence concerning Mr Singh consistent with their written statements. All witnesses demonstrated at least some knowledge of the Applicant’s offending. They were consistent in their view that Mr Singh’s absence from the family home had caused challenges for his children socially and behaviourally. Witnesses were consistent in their opinion that the Applicant is a man of good character and a supportive friend to them, and they did not consider him to be a regular drinker. I note that two of the witnesses were closer to Ms Gill than Mr Singh, and that one of the witnesses had not been physically close to the family due to the illness of her husband.
Further references are provided by a representative of the Sikh Cultural Society of Victoria (ASFIC, Annexure 9), dated 30 April 2020, indicating that Mr Singh has contributed as a volunteer and as a ‘regular devotee’. A letter from Mr Eddie Sada, undated, includes an offer of employment with his trucking business, based upon the author’s knowledge of the Applicant and his background in driving.
A large number of certificates for various vocational and rehabilitation programs are attached to the ASFIC. These record successful completion of numerous different vocational and skills-based units across 2020-2021. Rehabilitation courses completed comprise:
(a)Uniting 40 hour Intensive Substance Use Program, March 2021;
(b)6 hour stress management program, May 2021;
(c)Positive Parenting Program, September 2021;
(d)6 hour grief and loss program, May 2022; and
(e)Release Related Harm Reduction program, October 2023.
The materials also include correspondence from the Victorian Department of Justice and Community Safety Clinical Services team, dated 24 July 2020, (ASFIC, Annexure 5) advising Mr Singh that following the application of a screening tool, he was identified as falling into ‘the low risk category for violent recidivism’. As a result, he was ineligible for forensic intervention services while incarcerated.
The two incidents in immigration detention are the subject of reports in the material (G26, 458-470) and both are categorised as ‘minor’. The incident involving throwing belongings occurred in November 2023, and is reported largely as described by Mr Singh in evidence. The use of abusive language occurred in February 2024, and arose from Mr Singh’s attendance at a medical centre to exchange a nicotine patch. In this context. I also note that the Applicant appears to have a positive record in prison, at least for participation in work at the warehouse (SG1, 438).
IHMS records indicate that Mr Singh attended upon a counsellor and also with a psychologist in late 2023 and notes of these consultations indicate discussions were held about CBT and its benefit in restructuring his mindset (G27, 613, 626). The records lodged do not extend into 2024.
Submissions and findings
For the Applicant, it was primarily contended at the hearing that Mr Singh had been assessed more than once as being at low risk of further violent offending. His employment prospects and progress with rehabilitation were also relevant considerations, indicating the potential for successful reintegration into the community. Written submissions also note the remarks of the sentencing judge concerning prospects for rehabilitation. This is consistent also with the revocation submission.
At the hearing, the Respondent’s representative stressed that this consideration is composed of two elements, and the result of any future reoffending would be serious physical harm. The Respondent maintained the approach taken by the delegate, being that there was reduced risk of reoffending and it was not a negligible risk. It was acknowledged that rehabilitation undertaken to deal with stress was the most relevant, and support for this proposition is found in the sentencing remarks.
Particular emphasis was placed in submissions on the fact that the motivation for Mr Singh’s offending remained unclear. In these circumstances, it was contended, the Applicant’s future prospects remain uncertain. It was further submitted that the evidence indicated a relevant link in the past between life stress, anxiety and depression and alcohol use. In short, Mr Singh is likely to again face ordinary life stresses of the kind that occurred prior to his offending.
The Respondent also contended: Mr Singh continues to lack sufficient insight and remorse; may have engaged in impression management during the parole process; had misbehaved in immigration detention; and, had a history of withholding from his wife. In summary, it was submitted that the risk of future reoffending was low, but unacceptable due to the nature of harm that would arise. I note the detention behaviour is described in the RSFIC as a ‘history of aggression’ and an indication the Applicant has ‘unresolved anger issues’ [27 d.], [31].
The Direction provides that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of potential harm increases, and some harm may be so serious that any risk is unacceptable (8.1.2(1)). Accordingly, I must consider, cumulatively, the nature of harm should Mr Singh engage in further criminal conduct (8.1.2(2) a)), and the likelihood of this occurring (8.1.2(2) b)), taking into account evidence of risk and rehabilitation.
The Applicant is correct to identify the multiple findings of qualified experts and services that Mr Singh is at low risk of violent reoffending, and I must give these appropriate weight (7(1)). With respect to the Respondent’s contention that I should not accept that the risk of future reoffending is negligible, I note that Mr Cummins’ assessment is based upon reassessment of Mr Singh following completion of rehabilitation programs, and personal reflection. However, in any event, the Applicant concedes that a finding of ‘no’ risk is not feasible. Further, it is commonly accepted in the interpretation of risk assessment instruments that there is no rating below ‘low’.
Whatever the designated level of risk, I am bound given the singular nature of Mr Singh’s criminal record, to find that as a matter of logic, I must assume that the risk is of further violent offending. There is simply no pattern of conduct and no clinical indication that he is at risk of any other kind of criminality. At the same time, there are no clinical indications of underlying criminality.
I consider that I must form a qualitative assessment of risk based upon an appreciation of the Applicant’s insight, the impact of relevant rehabilitation, and the likelihood of circumstances arising in the future, such that might overwhelm Mr Singh’s personal and psychological defences, leading to such harm.
The evidence demonstrates that Mr Singh has voluntarily engaged in relevant and offence-specific rehabilitation, despite being denied access to formal forensic programs and support due to his low risk rating by the Victorian authorities. I think this demonstrates a determination to both atone for his conduct and to learn how to prevent future offending.
The Respondent has pointed to the theoretical limitations of protective factors, principally the chance that Mr Singh may not be able to manage future financial stress, I am satisfied that the evidence as a whole shows that the Applicant better understands the appropriate way to respond. I do not consider his behaviour in immigration detention to substantially undermine this conclusion, as it appears to be low level and behavioural at worst, rather than indicative of a substantive problem, as contended for by the Respondent.
The evidence also indicates, importantly, that Mr Singh has the motivation and opportunity to quickly return to gainful employment. This is accompanied by a motivation to return to and support his family, which is a close and functional unit. Indeed, the evidence suggests this family is surrounded by a relatively large group of family and friends who understand the history of his offending, and who consider Mr Singh to possess positive personal qualities. I also accept Mr Singh’s evidence that he is not going to resort to alcohol use in future.
Finally, as I indicated to the parties during submissions at the hearing, I consider that I am able to take account of the fact that Mr Singh will – in circumstances of a favourable decision – be under the supervision and support of community corrections in the continuation of his term of parole. I consider this to be a particularly important protective factor against further offending. This is primarily due to the supervision entailed. I accept that only core conditions are currently stipulated, but I give some weight to the assessment report which has recommended conditions that appear to be directed at supporting Mr Singh with further rehabilitation if necessary. I also accept that the Applicant has, regardless of any assistance from corrective services, made at least one concrete step to seeking support by scheduling an appointment for a mental health care plan with a local GP.
Summary finding
No summary submission was put on the Applicant’s behalf in written or oral submissions but, as noted, the focus of what has been put on Mr Singh’s behalf has been on his prospects for rehabilitation.
The Respondent contends that this primary consideration weighs heavily against revocation (RSFIC [33]).
I have found that Mr Singh’s offending is to be considered very serious and that he has received a substantial punishment. I have also found that should the Applicant reoffend, it is likely to be in a violent manner, causing harm to the community. However, on balance, I consider Mr Singh has indeed met the expectations of the sentencing judge that he has good prospects for rehabilitation. Not only has he engaged well despite restricted availability to forensic services, but he will be subject to formal supervision and possible further rehabilitation support on parole. I consider it appropriate to give particular weight to the ongoing period of parole which is, legally, a continuation of Mr Singh’s sentence in another form.
Accordingly, I find that this primary consideration weighs against revocation, but only moderately so.
Family violence committed by the non-citizen
The Direction here expresses the serious concerns of the Government that arise from family violence conduct (8.2(1)). There is no indication in the written or oral evidence as to any relevant conduct in this matter.
Despite a submission at the hearing for the Applicant that I should take into account the absence of family violence as a matter in Mr Singh’s favour, I do not consider that I am able to do so under the terms of the Direction.
Accordingly, I find that this consideration weighs neutrally.
The strength, nature and duration of ties to Australia
In his revocation submission (G8, 105) Mr Singh highlights the devastating impact permanent visa cancellation would have on his children given their close attachment. He also states that his children would not be able to accompany him if he returned to India, as they have little experience of that country and have limited language skills. The Applicant also emphasises the difficulties his wife would face, pointing to the mental health challenges she is facing and the stress of raising the children, including financially.
In his recent declaration (ASFIC, Annexure 4) Mr Singh restates his close ties with his children and his prominent role in sharing parenting tasks. The Applicant states that he has been helping his daughter with her maths and she was recently selected for a high ability education program. Mr Singh states that his son exhibits symptoms of delayed development in communication and fine motor skills. His son is a participant in the National Disability Insurance Scheme (NDIS) and Mr Singh notes that his wife has not been able to afford recommended additional testing and support.
Mr Singh states that Ms Gill has been forced to draw down superannuation and seek loans in order to manage the family finances. He reiterates his concerns about the challenges his children would face relocating to India, including adding to their developmental challenges.
In his evidence, Mr Singh stated that he has remained in regular contact with his children through video and phone calls, and they visit him almost every weekend since he has been in immigration detention. The Applicant stated that he had virtually raised their daughter when his wife previously worked on night shifts. Mr Singh’s mother is presently in Australia on a tourist visa and helping care for the children. He stated the family has hired someone to help with school drop-offs. Mr Singh’s nephew is presently staying with the family while in Australia on a student visa but does not assist with the care of the children.
Mr Singh stated that his brother in India is presently paying an amount nearly equivalent to the full mortgage payments of $1400 per month. The brother is also paying for the costs of their mother while living here. Mr Singh stated that he sold his truck in 2020 and repaid the outstanding loan. Any amounts paid by his brother he described as being under a ‘family understanding’ and any requirement to repay was therefore uncertain.
In cross-examination Mr Singh stated that he has cousins living in Australia and other relatives abroad in different countries. The Applicant’s brother is a farmer and lives in a ‘village’ which is a location that their parents moved to in 2000, not where they grew up. Mr Singh stated that his mother intends to return to India at the expiry of her visa. He stated that Ms Gill has a small number of relatives in India who live in a different location, but his relationship is mainly with his parents-in-law.
In response to a question from myself about his son, Mr Singh stated that the child is attending preparatory grade but is struggling. He stated that therapy appointments are outside of school hours and his son is currently on a waiting list to resume speech therapy.
In her recent declaration, Ms Gill states she has put on hold a dream of establishing a non-profit organisation in order to provide for her family instead [12]. She states that she has struggled with her mental health since her husband’s detention [16]-[18]. Ms Gill states her income from full-time employment at McDonald’s is not sufficient to cover weekly expenses, and she is managing the mortgage payments and has in the past borrowed money [21]-[24].
Ms Gill further states that her biggest concern is the long-term impact of separation from their father upon the children and describes them having a very balanced relationship as a couple with respect to care [28], [30]. The children, she states, feel ‘miserable and incomplete’ without their father [34]. Ms Gill also identifies a deterioration in the behaviour of her daughter and the need to explore further tests for autism for her son [40], [44]. She states further that they consider that India is not a suitable place for their children, who consider Australia their home [57], [58].
In her evidence, Ms Gill described her daughter as ‘broken’ in Mr Singh’s absence, and she had been close to her husband and now experienced lower self-esteem. In response to a question from myself about her son’s condition, Ms Gill stated they had not obtained a paediatric opinion but their GP had referred the child to speech therapy. She confirmed he is in his foundation year at school but described him as not being very social. Currently the child is receiving 45 minutes of occupational therapy each week.
With respect to her mental health, Ms Gill stated that her GP had recommended medication but that due to a prior bad experience with counselling, she had not taken up the recommendation that she consult a psychologist. She stated that deportation of Mr Singh would break them, and she cannot imagine a world without him.
The materials before me include a copy of the NDIS plan for Mr Singh’s son (G13, 365). Other documents attest to Ms Gill’s assessment for mental health issues, her daughter’s anxiety and the current and previous therapies undergone by her son (G13, 358-364). I noted above references indicating Mr Singh has been active in the Sikh community.
It was submitted for Mr Singh at the hearing that he has ‘exceptionally strong’ ties to Australia and that significant weight should be given to this consideration given his 17 years as a resident here. Particular emphasis was placed on the likelihood that in future non-citizen family would not be able to spend long periods of time here, in the way that Mr Singh’s mother has done to date. It was also contended that Mr Singh no longer has substantial ties to India, has been gainfully employed and been an active member of the community as a volunteer. It is submitted in the revocation submission that Ms Gill would be unable to have dual citizenship with India due to her Australian citizenship.

It was submitted for the Respondent at the hearing that this consideration weighs in favour of revocation, but it should be afforded less weight given Mr Singh did not spend his formative years in Australia. Written and oral submissions acknowledged the Applicant’s ties to family and friends and the emotional impact on immediate family of permanent separation (RSFIC [37]).
I accept that Mr Singh’s immediate family members are Australian citizens and I consider that, upon the totality of the evidence, that non-revocation of the visa cancellation decision is likely to have a substantial impact upon them (8.3(1)-(2)). Ms Gill has clearly been managing the family for some years since Mr Singh’s incarceration and I must give this some weight. However, I do accept the written and oral evidence of the financial challenges that this has caused.
Aside from financial issues, it is clear from the evidence (including that extracted under previous considerations) that Mr Singh has been a positive role model as a father and a contributing member of the family in all senses. I accept that his children have been affected emotionally by his absence, and that his wife has also experienced some emotional distress.
I do not wish to discount the seriousness of the developmental challenges faced by Mr Singh’s son. However, on balance, I do not consider the evidence to sustain a view that his membership of the NDIS represents a critical burden upon the family. That said, I do accept that the evidence indicates further diagnoses to be required and that these are presently unobtainable for financial reasons. I also accept that there is both an additional emotional burden and time commitment associated with caring for this child.
I have noted above the large number of referees who have contributed to the revocation application and with this hearing. My understanding is that all of these individuals are part of a relatively wide circle of friends and family who are persons with at least a right to reside in Australia, if not citizens. Accordingly, I give some weight to the Applicant’s ties to these individuals, noting that I do not consider any to have indicated that they would experience particular issues were Mr Singh to be deported (8.3(3)).
I must place these considerations in the context of the duration of Mr Singh’s time in Australia and his age on arrival (8.3(4)). Mr Singh has lived almost his entire adult life to date in Australia, a period of some 17 years, but he did not spend his formative years here. I accept that he has for the large part contributed positively during this time, noting of course that he has been in prison or detention for nearly a quarter of this time.
The challenge of family relocation to India is not a factor identified by the Direction for specific consideration. It is also in any event somewhat speculative as it is a matter that may arise for decision by the family unit in future, subject to the outcome of this decision. I do give some weight to the fact that the evidence and submissions on this issue serve to emphasise the evident permanence of the family’s life in Australia.
Accordingly, I find that this consideration weighs strongly in favour of revocation.
Best interests of minor children in Australia affected by the decision
I refer to and rely upon previous summaries of evidence related to the children and their relationship with Mr Singh. I note in addition that oral evidence was given concerning the Applicant’s maths tutoring for his daughter, and materials lodged with the ASFIC document this. I also note that Mr Singh’s son was under two years old when the Applicant was remanded in custody following conviction (SG1, 227).
Submissions for the Applicant at the hearing acknowledged that Mr Singh’s recent direct engagement with his children had been determined by what circumstances permitted, but he had made the effort to remain in contact. It was contended that his daughter is entering adolescence and experiencing behavioural problems, and this, together with the son’s developmental challenges, means that removing one parent permanently will enhance the impediments arising from parenting.
Written submissions (ASFIC) stress the individual challenges faced by each child including the daughter’s behavioural problems and the son’s therapies [28], [31]. It is contended that removing Mr Singh will have a detrimental effect on the children, and that maintaining a healthy relationship with him in India will be extremely difficult [36]-[37]. Both these submissions and the revocation submissions address the significance of parental relations as identified in the Convention on the Rights of the Child.
Consistent with the Respondent’s written submissions, it was accepted in oral submissions at the hearing that this consideration weighs in favour of revocation, but not such as to outweigh the first primary consideration. It was contended that the children are currently being cared for by their mother and grandmother, and Mr Singh had been absent for a lengthy period. I understood the Respondent to contend that the son’s support from the NDIS was a matter in favour of revocation to the extent that his needs were partially met from outside the family.
Principally, I must make a decision whether non-revocation is, or is not in the best interests of each minor child affected (8.4(1)-(3)). I give substantial weight to the fact that Mr Singh is the biological father of both children and who has in the past played an active and positive role as a parent, maintaining contact throughout his separation from them (8.4(4) a)). I also give substantial weight to the likelihood that he would continue to do so in future (8.4(4) b)).
I have unchallenged evidence that the children have suffered emotionally from separation to date, and also have evidence concerning the likely challenges of the family remaining together physically should Mr Singh be deported. I do note, following from my finding above, that there is a strong likelihood that Mr Singh would be able to at least maintain some contact via phone and video were this to happen. However, on balance, I consider I must give considerable weight to the emotional impact on the children of non-revocation (8.4(4) d)).
I accept that Ms Gill has essentially functioned as a sole parent for a large part of the time Mr Singh has been absent from the house, but at the same time, Mr Singh continued to fulfil a parental role subject to obvious physical limitations. Accordingly, I must give at least moderate weight to Ms Gill’s current and ongoing parental role.
While there are some distinct characteristics to the strength and nature of the relationship Mr Singh has with his children, noting each child has somewhat different personal needs, I consider, on balance, that the impact of this decision will not affect them in distinct ways.
In summary, I find that this consideration weighs heavily in favour of revocation.
Expectations of the Australian community
This consideration expresses the expectation in the Australian community that non-citizen’s obey the law (8.5(1)). In doing so it largely reflects the contents of the principles identified in the Direction (5.2), as and has been widely accepted in the authorities as being a deemed expectation.
Non-revocation may be appropriate simply because of the nature of offences including those that raise serious character concerns (8.5(2)). The expectation applies regardless of whether a non-citizen poses a measurable risk of harm to the Australian community, and decision-makers are not to independently assess community expectations (8.5(3)-(4)).
In its recent decision on a previous but similarly worded version of the Direction, Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2, the High Court considered whether or not a decision-maker was required to consider an Applicant’s personal circumstances in giving weight to this deemed expectation [47]. The Court stressed that the normative nature of the expectation as expressed in the subparagraphs of this consideration, and that it should be weighed as required by paragraphs 6 and 7 of the Direction [52].
The Applicant submits that Mr Singh’s offending does not qualify as conduct raising serious character concerns (ASFIC [44]). I was otherwise urged by the Applicant’s submissions to take his rehabilitation into account.
The Respondent submits that this consideration weighs heavily against revocation on account of the very serious nature of the offending, and the potential harm that would arise from further offending (RSFIC [46]-[47]).
I agree with the Applicant that his offending does not raise serious character concerns in the terms identified in this consideration. I note that Mr Singh has lived a substantial part of his life as an adult in Australia, and accordingly his offending may be afforded somewhat higher tolerance (Principle 5.2(5)). I also take into account the limited scope of his offending history and his otherwise law-abiding life as a resident. However, I also accept the broad thrust of the Respondent’s submission that any harm arising from further similar offending would be a matter of some concern.
On balance, I find that this consideration weighs moderately heavily against revocation.
OTHER CONSIDERATIONS
Four other considerations are specified by the Direction, although I am not confined to these. Neither party made submissions with respect to Impact on victims and material does not arise to give this matter consideration and therefore it weighs neutrally. I also do not consider that the material or evidence gives rise to the need to identify an additional other consideration.
Legal consequences of the decision
This consideration is framed by reference to a number of provisions in the Act and addresses the legislative requirement that unlawful non-citizens shall be detained until removed (as soon as reasonably practical) (9.1(1)). It does this in the context of non-refoulement obligations arising under international human rights conventions, to the extent that relevant claims are made (9.1(2)-(3)). The consideration specifically states that such obligations are to be understood in the context of protection obligations as articulated in the Act, and that they prevent the forcible return of a person to a place where they are at risk of harm.
I note that Mr Singh raised potentially relevant claims in his revocation submission, largely expressed as arising from a lack of resources in the health system in India to treat mental health conditions. At the time of his revocation request, as seen from Mr Cummins’ earliest report, the Applicant was considered to be suffering a mental health condition.
Such claims are not repeated in the ASFIC. Furthermore, twice during the hearing I specifically sought clarification from Mr Singh’s representative as to whether any claims of harm were presently being agitated, and the response was in the negative. This would seem to follow logically from Mr Singh’s present, improved, mental health state.
Under the circumstances, I consider that I am entitled to proceed on the basis that should Mr Singh at a later point decide to apply for a protection visa, subject to the outcome of this hearing, any claims that he has will be considered then (9.1.2(2)). I also understand, as noted above, that in the meantime the Applicant will remain in detention pending removal.
Accordingly, I find that this consideration weighs neutrally.
Extent of impediments if removed
I have already summarised in these reasons the pertinent key personal background information about Mr Singh and relevant evidence of importance for this consideration. I add to this the further evidence given by Mr Singh that he would not wish to live with his brother if returned to India, on account, as I understood the evidence, of feeling that he did not wish to be a further burden to him.
I note the Movement History included in the materials (G15). This shows, consistently with Mr Singh’s evidence, that he has made four short return visits back to India between 2007 and 2016, each of approximately four weeks’ duration.
Submissions on this consideration for Mr Singh at the hearing cross-referenced the submissions already made, with respect to the challenges facing the family if he were to be deported. No particularly relevant written submissions were made on this issue.
It was submitted for the Respondent at the hearing that this consideration weighed in favour of revocation, given the possible absence of his immediate family for support. However, it was contended that given the standard by which the consideration is measured, the Applicant is unlikely to face any real barriers upon return. He is likely to receive some support from his remaining family and his mental health is presently relatively well managed.
The Respondent is correct to highlight the fact that this consideration is grounded in impediments a person may face in establishing themselves and maintaining basic living standards in the context of what is generally available to other Indian citizens (9.2(1)). Mr Singh is still of working age and in good physical health (9.2(1) a)), and faces no language or cultural barriers (9.2(1) b)).
I must also consider social, medical, and economic supports (9.2(1) c)). There is a degree of uncertainty on the evidence about precisely what living arrangements Mr Singh might pursue and what kind of social supports might be offered by his relatively few, but close, family members. I also take account of the fact that Mr Singh was recently medicated and has in the past been more regularly on medication for his mental health condition. It may be that Mr Singh could face some impediments in obtaining medical treatment, but this is a somewhat speculative inquiry given his present state.
On balance, I consider that Mr Singh may face some relatively minor impediments in re-establishing himself, and accordingly, I find that this consideration weighs in favour of revocation, but only to a slight degree.
Impact on Australian business interests
Consideration is generally only to be given to this factor where a revocation decision would ‘significantly compromise the delivery of a major project’ or of an important service (9.4(1)).
It is contended in Mr Singh’s revocation submissions that his involvement in contracting to the Melbourne Metro Tunnel constitutes an important service (G8/C3, [75]). The Respondent countered that the Applicant’s contribution was readily replaceable, and no weight should be afforded this consideration (RSFIC [67]-[68]).
I do not disagree with the proposition that the evidence indicates Mr Singh has played only a peripheral role in a major project. I must observe that this and any other construction activity that he may have contributed to, have progressed without his input during the nearly four years he has been in prison or immigration detention.
For this reason, I do not give this consideration any weight, and it weighs neutrally.
CONCLUSION
Of the primary considerations, I have found: Protection of the Australian community weighs moderately strongly against revocation; The strength, nature and duration of ties to Australia weighs strongly in favour of revocation; The best interest of minor children in Australia affected by the decision weighs strongly in favour of revocation; and, Expectations of the Australian community weighs moderately strongly against revocation. The primary consideration Family violence committed by the non-citizen weighs neutrally.
Of the Other considerations, I have found that Extent of impediments if removed weighs only slightly in favour of revocation, and the remaining considerations weigh neutrally.
In general, primary considerations should be given greater weight than other considerations and one or more primary considerations may outweigh other primary considerations (7(1)-(3)). In the course of these reasons, I have found that while Mr Singh’s criminal conduct should be considered to be very serious, it does not of itself raise what the Direction describes as serious character concerns. This is because his one offence – while violent and unprovoked – stands amidst a longer period of time contributing positively to the community, and functioning as a constructive and loving family man.
On this basis, the Direction permits that greater tolerance may be shown to a history of offending. Moreover, Mr Singh has engaged in a range of relevant rehabilitation programs and exhibits a strong desire to lead a pro-social life in future. Perhaps most importantly, Mr Singh remains under sentence in the form of a quite lengthy period of parole.
Accordingly, I find that there is another reason why the mandatory cancellation of Mr Singh’s visa should be revoked.

DECISION
For the reasons given above, the Tribunal decides that the decision dated 4 March 2024 not to revoke the mandatory cancellation of the Applicant’s Skilled Independent (Subclass 885) visa is set aside and remitted with the direction that there is another reason why the mandatory cancellation should be revoked.

I certify that the preceding 124 (one-hundred and twenty-four) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member

...............[SGD].............
Associate
Dated: 28 May 2024

Date(s) of hearing: 16-17 May 2024

Advocate for the Applicant: Ruslan Ahmadzai

Solicitors for the Applicant: Crystal Migration

Advocate for the Respondent: Adam Cunynghame

Solicitors for the Respondent: Sparke Helmore

[2024] AATA 1237

28 May 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Date(s) of hearing:	16-17 May 2024
Advocate for the Applicant:	Ruslan Ahmadzai
Solicitors for the Applicant:	Crystal Migration
Advocate for the Respondent:	Adam Cunynghame
Solicitors for the Respondent:	Sparke Helmore