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

Singh and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1852 (27 June 2023)
Division:GENERAL DIVISION
File Number(s): 2023/2263
Re:Harjit Singh
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Justin Owen
Date:27 June 2023
Place:Sydney

The decision under review is affirmed.
....................................[SGD]....................................
Deputy President Justin Owen
CATCHWORDS
MIGRATION — application for Bridging E (Class WE) visa — visa refusal — Applicant does not pass the character test – whether the discretion to refuse to grant the Bridging visa should be exercised — Applicant has substantial criminal record – whether the discretion to refuse to grant the visa should be exercised – consideration of Ministerial Direction No. 99 – best interests of the child – decision under review affirmed.
LEGISLATION
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CJP16
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Deputy President Justin Owen
27 June 2023
INTRODUCTION

The Applicant seeks a review of the decision by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) made under sub-section 501(1) of the Migration Act 1958 (Cth) (the Act) on 3 April 2023, to refuse to grant the Applicant a Bridging E (Class WE) visa (the Visa).
The Applicant is a male Indian national born in October 1994. At the time of this decision, he is 28 years of age. The Applicant first visited Australia on a Visitor (Class FA) visa on 27 July 2019 and has resided in Australia since October 2020 after being granted a Student (Temporary)(Class TU) visa. The Applicant applied for the Bridging E (Class WE) visa which is the subject of this review on 26 December 2022.
The Applicant’s visa was refused on 3 April 2023 under sub-section 501(1) of the Act on the basis that he did not pass the character test. On 6 February 2023, the Respondent notified the Applicant of its Notice of Intention to Consider Refusal (NOICR) of the Applicant’s Bridging visa application under sub-section 501(1) of the Act. On 20 February 2023, the Applicant provided a personal circumstances form in response to the NOICR. On 3 March 2023, the Respondent sent the Applicant a further NOICR which stated that the Respondent would consider whether the Applicant passed the character test under paragraph 501(6)(a) on the basis of his substantial criminal record, and also informed the Applicant of the new Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99 or the Direction). On 6 March 2023, the Applicant responded to the NOICR. On 3 April 2023, a delegate of the Respondent refused to grant the Applicant the visa. The delegate found that the Applicant did not meet the character test and exercised the discretion not to grant the visa. There followed an application to the Tribunal on 11 April 2023 wherein the Applicant sought review of the delegate’s refusal to grant him a Bridging E (Class WE) visa.
The issues before the Tribunal are:
(a)does the Applicant pass the character test as required by section 501 of the Act and,
(b)if he does not, whether the Tribunal should exercise its discretion to grant the Applicant the visa.
The hearing was held on 13 and 14 June 2023. The Tribunal received oral evidence from the Applicant and his sister Ms Mandeep Kaur. The hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
For the following reasons, the Tribunal has decided to affirm the decision under review.
RELEVANT LAW
Pursuant to sub-section 501(1) of the Act, the Tribunal acting as the decision-maker may affirm a decision to refuse the grant of a visa if satisfied that the Applicant does not pass the character test.
The character test is set out at sub-section 501(6) of the Act, and relevantly prescribes at paragraph 501(6)(a) that a person will not pass the character test if a person has a substantial criminal record. That term is defined in sub-section 501(7). Relevantly to this case, paragraph 501(7)(c) defines a substantial criminal record as a person who has been sentenced to a term of imprisonment of 12 months or more.
Should the Applicant not satisfy the character test, the discretion to refuse to grant the visa under sub-section 501(1) of the Act is enlivened. The exercise of the discretion is governed by the considerations set out in Direction 99. Direction 99 is binding on decision-makers, including this Tribunal, performing functions or exercising powers under section 501 of the Act.
Direction 99 sets out the principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to refuse to grant a visa or revoke mandatory cancellation decisions. The principle set out at paragraph 5.2(2) of Direction 99 states that:
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.
In considering whether to exercise this discretion, the Tribunal is bound by sub-section 499(2A) of the Act to comply with any directions made under the Act. In this case, Direction 99 has application. On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under s 501CA, was revoked and was replaced by Direction No. 90. Direction No. 90, in turn, was replaced by Direction 99 on 3 March 2023. Direction 99 is binding on the Tribunal in performing its functions or exercising powers under section 501 of the Act.
The Direction sets out the principles that provide a framework on how decision-makers should approach their task of deciding whether to exercise the discretion to refuse to grant a visa or revoke mandatory cancellation decisions. For the purposes of deciding whether to refuse or cancel a non-citizen’s visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:
(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.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
The primary considerations which are set out in paragraph 8 of Direction 99 are:
(1)Protection of the Australian community from criminal or other serious conduct;
(2)Whether the conduct engaged in constituted family violence;
(3)The strength, nature and duration of ties to Australia;
(4)Best interests of minor children in Australia; and
(5)Expectations of the Australian community.
The other four considerations which are set out in paragraph 9(1) of Direction 99 are:
(a)Legal consequences of the decision;
(b)Extent of impediments if removed;
(c)Impact on victims;
(d)Impact on Australian business interests.
The Tribunal notes the importance of the other considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23]:
…Direction 65 [now Direction 99] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
Decision-makers should ‘generally’ give greater weight to primary considerations than other considerations. Further, one primary consideration may outweigh other primary considerations: paragraphs 7(2) and (3) of Direction 99.
‘Substantial criminal record’ question
Paragraphs 501(6)(a) and 501(7)(d) of the Act provide that a person does not pass the character test if they have been sentenced to two or more terms of imprisonment, where the total of those terms is 12 months or more. The Applicant fails the character test on account of his conviction on 12 May 2022 in the Blacktown Local Court of New South Wales of two counts of Agg B&E dwelling etc in company steal <=$60000, Goods in personal custody suspected being stolen (not m/v) and Receive/dispose stolen property- min. indict. off. >$5000, for which he was sentenced to an aggregate of 16 months’ imprisonment.
The Applicant has thus been convicted of offences which resulted, in aggregate, in a sentence of imprisonment of 12 months or more.
The Respondent contended that the appropriate criteria for the delegate to rely upon should have in fact been paragraph 501(6)(c) on the basis the Applicant had been sentenced to a single aggregate term of imprisonment of 12 months or more. This was because the sentencing in fact was a single aggregate term of imprisonment of 16 months for four separate offences.
The Respondent contended that there was no impediment to the Tribunal relying on paragraph 501(7)(c) rather than (d) in finding that the Applicant had a substantial criminal record under paragraph 501(6)(a). The Respondent distinguished the present case from Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CJP16 [2019] FCA 2033 (CPJ16) on the basis that the Tribunal was not in the current matter being required to consider a different limb of the character test under sub-section 501(6). The Respondent submitted in their Statement of Facts, Issues and Contentions at paragraph 25 that rather, the Tribunal’s task was limited to “determining the same limb assessed by the delegate, being whether the applicant had a ‘substantial criminal record’ for the purpose of cl 501(6)(a)”. The Respondent submitted it was subsequently open to the Tribunal to “assess the applicant against any of the criteria under cl 501(7), which provides the definition of a ‘substantial criminal record’, even if not specifically considered by the delegate.”
The Applicant did not provide any written submissions in response to the contention.
The Tribunal accepts the Respondent’s submissions. Sub-section 501(7) provides the definition of a ‘substantial criminal record’. It is not in dispute that the Applicant was sentenced to a term of imprisonment of 12 months or more. Whether the delegate relied upon the limb of a single term of imprisonment of 12 months or more (paragraph 501(7)(c)) or two or more terms that accumulate to more than 12 months’ imprisonment (paragraph 501(7)(d)), the Applicant nevertheless has a ‘substantial criminal record’ under paragraph 501(6)(a).
The Applicant concedes his offending, concedes he was sentenced to a term of imprisonment of 12 months or more, and does not dispute that he does not satisfy the character test. Having regard to the above evidence, the Tribunal finds that the Applicant has been convicted of offences and was sentenced to a term of imprisonment of 12 months or more. The Tribunal accepts that he was ultimately sentenced to a single aggregate term of 16 months’ imprisonment for four separate offences so finds that he has a substantial criminal record under paragraph 501(7)(c).
Does the Applicant pass the character test?
The character test is defined in sub-section 501(6) of the Act. Relevantly, paragraph 501(6)(a) of the Act states that a person does not pass the character test if the person has a substantial criminal record, as defined in sub-section 501(7) of the Act. Paragraph 501(7)(c) of the Act provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
The Tribunal has been provided with the Applicant’s Australian Criminal Intelligence Commission Check Results Report dated 17 November 2022 setting out the Applicant’s offending and convictions. Information in the Respondent’s Statement of Facts, Issues and Contentions (SFIC) at paragraph 28, which the Tribunal accepts as accurate, indicates that the Applicant has been convicted of a range of offences since 2021. The Tribunal has also noted the relevant NSW Police Facts in relation to the offending.
The Tribunal notes that on 12 December 2021 the Applicant and his wife Ms Kaur broke into a residence and stole property to be valued in excess of $10,000 and of significant sentimental value. The items reported to have been stolen included an Armani watch, a range of other brand name watches, gold jewellery and Apple products.
On 10 January 2022 the Applicant and his wife Ms Kaur committed a further break and enter offence. Cash estimated between $5,000 and $7,000 was stolen along with items of jewellery.
On 12 May 2022 the Applicant was convicted of an aggregate term of 16 months’ imprisonment with a non-parole period of 12 months in relation to the offences committed as part of the two break and enters of 12 December 2021 and 10 January 2022.
The Tribunal notes that the Applicant has committed a range of other offences and incurred a range of other convictions since arriving in Australia.
On 25 July 2021 the Applicant was charged with seven offences relating to the theft of possessions, bank cards and identity documents from his sister Ms Mandeep Kaur and Harjeet Kaur which were subsequently pawned. The Applicant was convicted of these offences on 12 May 2022 and given a section 10A conviction[1].
[1] A s10A conviction is a conviction with no other penalty: Crimes (Sentencing Procedure) Act 1999 (NSW).
On 9 August 2021 the Applicant was charged with two offences of Enter inclosed land not prescribed premises without lawful excuse as well as failing to comply with COVID-19 directions. On 16 August 2021 he was again charged with failing to comply with COVID-19 directions. On 27 October 2021 he was convicted of these offences and received fines.
The Applicant was charged with failing to appear in accordance with bail acknowledgement on 26 September 2021. The Applicant was convicted of this offence on 12 May 2022 and was given a section 10A conviction.
The Applicant was charged with possessing a prohibited drug, believed to be 0.31 grams of heroin on 23 October 2021. He was convicted of the offence on 1 December 2021 and fined.
The Applicant was charged on 21 December 2021 with speeding in excess of 45 km/h, driving under the influence of illicit drugs, being heroin, and driving with an unrestrained child under six months of age, his son. The Applicant was convicted on 12 May 2022 and disqualified from driving for six months and fined.
The Tribunal finds that this constitutes a ‘substantial criminal record’ as defined in paragraph 501(7)(c).
The Tribunal finds that the Applicant has a ‘substantial criminal record’ and, therefore, he does not pass the character test.
EXERCISE OF DISCRETION
In his submissions, the Applicant concedes his past offending, expresses remorse and acknowledges that he does not pass the character test under sub-section 501(6). However, he argues that the Respondent erred in deciding not to exercise the discretion to grant a visa.
The Applicant submits that the compelling and compassionate circumstances concerning his young child, a primary consideration, were not considered by the delegate. The Applicant submits the negative impact of the refusal of his visa on his family in Australia, including his niece, was not considered by the delegate. The Applicant stated his visa should not have been refused due to the “non-seriousness of my criminal conduct, where I did not hurt someone physically, damage property or a threat to the individuals”. The Applicant blames the influence of drugs and alcohol for his offending behaviour and claims to have now rehabilitated himself after eight months in gaol and now leads a healthy lifestyle. The Applicant submits that the best interests of minor children, as well as the strength, nature and duration of his ties to Australia, ultimately outweigh the other considerations. The Applicant notes he has no prior convictions in India. The Applicant also raises the ongoing separation whilst in detention from his wife Ms Kaur, who was the co-offender in the convictions which provided the grounds on which he failed to pass the character test.

The Respondent refers to the nature and seriousness of the Applicant’s offending and conduct, as well as the risk of the Applicant committing further offences or engaging in serious conduct. These factors are relevant to the Primary Considerations of the protection of the Australian community, as well as the expectations of the Australian community. The Respondent submits that the Applicant’s criminal history should be viewed very seriously and notes the Applicant since arriving in Australia has “repeatedly committed offences against Australian laws which have increased in seriousness over time”. The Respondent notes the Applicant’s recidivism together with the cumulative effect of his repeated offending should be viewed as “very serious” and that he poses an unacceptable risk of future offending. The Respondent states that the Australian community would expect that the Applicant no longer hold a visa due to his offending, criminal conduct. The Respondent concedes that the best interests of the Applicant’s young child afford the Applicant some limited weight against exercising the discretion to refuse to grant the visa. The Respondent submits the Applicant’s strength, duration and ties to Australia, having arrived just a few years ago, should be afforded very limited weight despite the presence of his wife who is currently in Australia but has had her own application for a Bridging visa refused on character grounds. The Respondent submits that the impediments if the Applicant is removed from Australia are very limited.
The Tribunal’s considerations are set out below with regard to the Direction.
Primary Consideration 1 – Protection of the Australian Community
In considering Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity, or other serious conduct, by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens. However, this privilege is conferred in the expectation that non-citizens are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
The Tribunal has reviewed the Applicant’s Australian Criminal Intelligence Commission Check Results Report dated 17 November 2022; the relevant NSW Police Fact Sheets; the list of breach of bail charges; Roads and Maritime Services records; Court Attendance Notices; the NSW Justice Sentencing Assessment Report; Court Results; NSW Police Bail Reports; Bail Acknowledgements; and other relevant documentation produced by Clarkstown Local Court, Liverpool Local Court, the Department of Communities and Justice, Transport for NSW, and the NSW Police Force in relation to the offending.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(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.
The nature and seriousness of the Applicant’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed), are viewed very seriously by the Australian Government and the Australian community.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision-maker (with the exception of the crimes or conduct mentioned in sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1)) to have regard to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/Applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an Applicant’s offending.
In considering the nature and seriousness of the Applicant’s conduct to date, the Applicant has been convicted of multiple offences as summarised above. The Applicant concedes his previous offending.
The Tribunal has had regard to the NSW Police reports relating to the offences committed between 12 December 2021 and 10 January 2022, namely ‘Goods in personal custody suspected being stolen (not m/v)’, Agg B&E dwelling etc in company steal<=$60000-T1’, ‘Receive stolen property-min. indict. Off >$5000-T1’ and ‘Agg B&E dwelling etc in company steal<=$60000-T1’.
In relation to the 12 December 2021 offending, the Applicant together with his wife and co-offender Ms Kaur, after staking out the property, broke into the home of a couple on their wedding night in Glenwood. The victims had property stolen of a value in excess of $10,000, including designer watches and jewellery, some with significant sentimental value.
On 10 January 2022 the Applicant’s wife and co-offender Ms Kaur broke into a residence in Parramatta whilst the Applicant kept a lookout. The Applicant and the co-offender together forced entry into the property by forcing open a window before both entering the premises. Australian currency to the value of $5,000 to $7,000 was stolen, along with jewellery.
On the morning of 12 January 2022, the NSW Police attended the Applicant and his co-offender at their residence in Parramatta where they located, cautioned and arrested both parties. They were taken to Granville Police Station and were provided with an interpreter. The Applicant signed a consent form for the NSW Police to conduct a search of his residence. During the search the NSW Police discovered multiple items belonging to the Applicant and his wife that matched items worn during the break-in. They also discovered a large amount of jewellery as well as watches they suspected were illegally obtained. The Applicant took part in a recorded interview where he made admissions to entering the Glenwood property from the 12 December 2021 break-in and taking property. He conceded the watch he was wearing was stolen from these premises, whilst he stated some property had been given to a friend. He was shown photographs of items seized at his premises and admitted they were from the Glenwood break-in.
The NSW Police Facts Sheets state that on this same day investigative officers were informed the Applicant and his wife were in custody in relation to the Glenwood break-in of 12 December 2021. The investigative officers attended Granville Police Station where they introduced themselves before arresting and cautioning the Applicant and his wife, the co-offender.
Separate interviews were held by the investigative officers with the Applicant and his wife. In his interview, the Applicant made a full admission of breaking into the Parramatta premises on 10 January 2022 and stealing the items mentioned previously. The Applicant stated he entered the property after his wife entered via the window that they had forced open. The Applicant cooperated with the NSW Police and consented for his premises to be searched to locate the aforementioned property. The Applicant attended with police who found the clothing he wore at the time of the offending. The accused agreed this was the clothing he was wearing at the time of the offending.
The Applicant’s wife stated in her own interview with police that she was responsible for breaking into the Parramatta residence, and the Applicant attempted to stop her. This version of events was not supported by the Applicant, nor by video footage which reflected the Applicant’s version of events.
Whilst the items from the Parramatta break-in were not located at the Applicant’s residence, he informed NSW Police of certain locations the items were stored after they were stolen. The Applicant it is stated was cooperative and all interactions and conversations were captured on camera.
On 12 May 2022 the Applicant was convicted of an aggregate term of 16 months imprisonment with a non-parole period of 12 months in relation to the offences committed as part of the two break and enters of 12 December 2021 and 10 January 2022.
The Tribunal finds that the Applicant’s conduct in relation to the events of 12 December 2021 and 10 January 2022 is very serious. To break into and violate a person’s home for the purposes of theft and the removal of their possessions is a serious matter. The loss of sentimental items can be particularly distressing to the victims of such criminal behaviour. It is well-established that the imposition of a custodial term upon an offender is seen as the last resort in the sentencing hierarchy. A judicial sentencing officer’s deployment of a custodial sentencing option must be viewed as a reflection of the objective seriousness of the offending sought to be punished: PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [20]-[22]. The Tribunal acknowledges paragraph 8.1.1(1)(c) and notes the imposition of a custodial sentence which is a reflection of the objective seriousness of an Applicant’s offending.
The Tribunal further notes that in between this offending and the subsequent break-in of 10 January 2022, the Applicant was brought into custody on 22 December 2021 at Granville Police Station in relation to driving offences. The Applicant the day prior, with his four-month-old child unrestrained in the vehicle, was found speeding in excess of 45 km/h over the speed limit whilst driving under the influence of drugs, which is understood to be heroin. The NSW Police Facts Sheet states the Applicant was travelling up to 110 km/h in a 60 km/h zone in Pemulway. In response to police questioning, the Applicant conceded that he had not been speeding as a result of an emergency, with the police noting recently purchased fast food in the car. Police checks revealed the Applicant had an outstanding warrant for failing to appear at Liverpool Local Court a week earlier on 15 December 2021. The Applicant was subsequently fined and disqualified from driving for six months due to the events of 21 December 2021.
The Tribunal finds the Applicant’s behaviour in relation to the events of 21 December 2021 whilst driving his motor vehicle reprehensible, despite the Applicant’s claims that his behaviour was influenced by his drug use. The Applicant was putting the life of his own four-month-old child at an incalculable risk whilst he was under the influence of heroin, and sped through suburban streets at more than 45 km/h over the legal limit. The Applicant chose to take drugs and drive. The risk this sort of behaviour on the road brings to innocent and peaceable citizens and their families, going about their day on the road in their own vehicles or crossing our roads, is unfathomable. The reports in our newspapers and broader media about the innocent victims of substance-affected and/or speeding drivers are depressingly regular and all too familiar. The Tribunal notes the Applicant considered his conduct in relation to these events (and for that matter his break and enter convictions) as ‘non-serious’ in his written submissions of 8 May 2023 to the Tribunal on the basis that “I did not hurt someone physically, damage property or a threat to the individual…”.
The Tribunal considers the behaviour was very serious and the fact that no one was either seriously injured or killed does not mitigate the objective seriousness of driving at excessive speeds whilst under the influence of illegal drugs and with a young child unrestrained in the back of the vehicle.
The Tribunal notes that the Applicant has committed a range of other offences and incurred a range of other convictions since arriving in Australia.
On 25 July 2021 the Applicant was charged with seven offences relating to the theft of possessions, bank cards and identity documents from his sister Ms Mandeep Kaur and brother-in-law Mr Harjeet Kaur which were subsequently pawned. These thefts occurred between June and July 2021 and included not only cash and jewellery but identification documents including a Medicare card, a Driver’s Licence, a photo ID card and a Commonwealth Bank access card which was used to open up accounts through Telstra. Other thefts included a passport, a tax file number and a further Commonwealth Bank access card which was used to open an Optus account and purchase mobile telephones.
On 25 July 2021 the Applicant together with his wife were identified during the COVID-19 lockdown whilst breaching a Public Health Order. A police search revealed the identity documents, some of which had been utilised to commit identity fraud. The Applicant was convicted of these offences on 12 May 2022 and given a section 10A conviction.
Despite the section 10A conviction, the Tribunal considers the theft of identity documents that were then utilised to commit identity fraud a matter of genuine concern. The anxiety, stress and financial loss identity fraud can cause individuals is well known. The cost and impost on business impacted by identity fraud is considerable.
The Tribunal also acknowledges the Applicant’s other offences against Australian laws since his arrival in Australia:
·On 9 August 2021 the Applicant was charged with two offences of Enter inclosed land not prescribed premises without lawful excuse as well as failing to comply with COVID-19 directions. On 16 August 2021 he was again charged with failing to comply with COVID-19 directions. On 27 October 2021 he was convicted of these offences and received fines.
·The Applicant was charged with failing to appear in accordance with bail acknowledgement on 26 September 2021. The Applicant was convicted of this offence on 12 May 2022 and was given a section 10A conviction.
·The Applicant was charged with possessing a prohibited drug, believed to be 0.31 grams of heroin on 23 October 2021. He was convicted of the offence on 1 December 2021 and fined.
For the purposes of section 501, the Applicant concedes his past offending, though as the Tribunal has noted previously, appears to lack an understanding as to the seriousness of his past behaviour and his own personal responsibility for his behaviour.
The Applicant submits that the vast majority of his offending has been non-serious and linked to his previous use of drugs and alcohol. He claims he has rehabilitated himself through a range of measures including the completion of a number of improvement courses whilst incarcerated and in immigration detention and now lives a healthy, drug-free life.
The Respondent submits that the nature and seriousness of the Applicant’s offending weighs very heavily in favour of refusal. The Respondent submits that the Applicant’s offending has become more serious over time.
The Respondent notes that the imprisonment sentences imposed by the Courts is indicative of the seriousness of the Applicant’s offending. The Respondent further notes sub-paragraph (c) of paragraph 8.1.1(1) of the Direction, which requires a decision-maker to consider the imposition of a custodial term as the last resort in any reasonably and correctly applied sentencing process. The Respondent also notes that the Direction states that custodial terms are viewed as a reflection of the objective seriousness of an Applicant’s offending. The Tribunal agrees with the Respondent’s submissions and finds that the custodial term imposed by the sentencing judge is indicative that the Applicant’s offending was very serious.
The Tribunal accepts the Respondent’s submission that the Applicant has demonstrated, over a relatively short period of time, a disregard for Australian laws and a disregard for the effect of his repeat offending.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
The Tribunal notes the Applicant has been convicted of multiple offences since his arrival in Australia and is of the opinion, based upon all the evidence before it, that the seriousness of his offences has increased during this time.
What commenced as identity theft from his own family in July 2021 led to a disregard for Public Health Orders during the pandemic in winter 2021. In September 2021 he was charged with failing to appear in accordance with bail acknowledgement, being convicted in May 2022. This demonstrates, in the Tribunal’s opinion, a contempt for Australia’s criminal law processes. A month after his bail charges, in October 2021, he was charged with possessing heroin, being convicted in December that year and fined $700. In December 2021 he committed both the first break and enter offence as discussed above, as well as the driving offences whilst under the influence of prohibited drugs with his young child unsecured in the vehicle. In January 2022 he committed the second break and enter with his wife, the co-convicted.
The Tribunal considers the frequency of the Applicant’s offending since his arrival in Australia is often, whilst the trend is of increasing seriousness.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to the cumulative effect of an Applicant’s repeated offending.
The Applicant’s recidivism is a concern to the Tribunal. Since his arrival in Australia the Applicant has been convicted of 19 offences, a significant number considering his relatively brief residence in Australia. The Tribunal has considered the cumulative effect of the Applicant’s repeated offending.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
There is no record or suggestion that the Applicant has provided false or misleading information of the Department, including by not disclosing prior criminal offending.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).

There is no record or suggestion that the Applicant has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status.
Sub-paragraph (h) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard, where the offence or conduct was committed in another country, to whether that offence or conduct is classified as an offence in Australia.
The Applicant’s offences were committed in Australia. There is no record or suggestion the Applicant has committed an offence in another country.
Conclusion about the nature and seriousness of the Applicant’s conduct
The Tribunal has sought to apply each of the relevant sub-paragraphs in paragraph 8.1.1(1) of the Direction. With particular reference to the relevant and applicable paragraphs to which the Tribunal has referred, the Tribunal finds the Applicant’s conduct can be characterised as very serious.
Risk to the Australian community should the Applicant commit further offences or engage in serious conduct
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the following three factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Paragraph 8.1.2(2)(a) compels the Tribunal to make an assessment of the nature of the harm to individuals or the Australian community in the event of this Applicant engaging in further criminal or other serious conduct.
To make such an assessment requires the Tribunal to consider what harm would be caused to individuals or the Australian community if the Applicant were to reoffend and return to criminal conduct. The Tribunal has subsequently considered what harm would be caused if the Applicant returned to offending via the resumption of anti-social criminal behaviour that includes aggravated break and enter offences; receiving/disposing of stolen goods; speeding in excess of 45km/h whilst under the influence of drugs; possessing prohibited drugs; and identity theft involving the stealing of personal information and financial documentation for the purposes of financial gain.
The Tribunal considers the nature of any harm, should the Applicant engage in further criminal conduct of a similar nature, is that the Applicant could potentially cause serious financial and psychological harm to individuals through the theft of the personal items and chattels of members of the community through break and enter offences being committed in relation to their property. The anxiety residents can face from the violation of their own homes is noted by the Tribunal, even beyond the impact of financial loss from the theft and subsequent disposal of their possessions. The Tribunal has particular concerns as to the potentially catastrophic physical harm the Applicant could cause should the Applicant again drive a motor vehicle whilst under the influence of illicit drugs. The harm the Applicant could cause to not just himself and his family but to innocent motorists, pedestrians and cyclists is obvious and genuinely concerning.
The Tribunal therefore finds, that were the Applicant to reoffend, the nature of harm would be very serious.
The likelihood of the non-citizen engaging in further criminal or other serious conduct (paragraph 8.1.2(2)(b))
Sub-paragraph (b) of paragraph 8.1.2(2) of the Direction requires a decision maker to consider:
(i)information and evidence on the risk of the non-citizen re-offending;
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence.
The Tribunal has considered the risk to the community, should the Applicant reoffend. In making this assessment, the Tribunal has considered the risk of the Applicant reoffending.
The Applicant has submitted that there are multiple factors that affect the risk of his reoffending. He submits that any risk of reoffending is minimal.
The Applicant blames his drug use for his previous offending behaviour and states that he “made a mistake, poor choices and he corrected himself by quitting and focus [sic] to have a healthy lifestyle for himself and his family.” He states that he is not “ashamed to disclose that he has been the victim of drug use”. The Applicant submitted that being incarcerated in the criminal justice system followed by immigration detention has meant that he has “been away from illicit drug use” and was able to “focus on leading a healthy lifestyle for the betterment of his child”. This, it is submitted, has significantly reduced the risk of any re-offending.
In support of his claim of rehabilitation and his overcoming of any drug dependency, the Applicant submitted in his oral evidence that he had completed five courses including thinking skills, emotional skills and parenting skills. The Tribunal notes the Applicant has provided Certificates of Completion for Alcohol Awareness (17 June 2022), Emotional Wellbeing (10 June 2022) and Thinking Skills (3 June 2022). At the Tribunal’s hearing the Applicant stated he had also completed a Cannabis Awareness course and believed he had submitted it as evidence. The Tribunal discussed the matter at the hearing and noted it had not been submitted as evidence. Whilst the Tribunal has not admitted the Cannabis Awareness documentation into evidence, the Tribunal is prepared to accept the Applicant’s evidence that he has completed the Cannabis Awareness course as he has claimed.
The Applicant furthermore has submitted that the removal of his son from the custody of himself and his wife was a contributing factor to his offending as well as the financial hardship he faced during the COVID-19 pandemic when he was neither able to secure adequate employment or gain any access to government support as a non-resident. The Applicant has also submitted that he received no financial support from his family in India during the lockdown in Australia during the pandemic, and the conflation of all this financial hardship created pressure that was “too much for me to handle” and led to his abuse of drugs and alcohol, and subsequently his criminal activity. He submits that his circumstances have now changed and that mitigates any risk. He states that he now has family support, his immediate family members such as his sister are in Australia and his parents are in Australia on Visitor visas.
The Applicant points out that he has no criminal history in India and the offending in his life has been only in Australia and as a consequence of some unique and especially stressful encounters.
The Applicant has submitted that he is remorseful and apologetic for his offending behaviour. He writes that he “truly believes that he could be a responsible citizen as he had the opportunity to investigate his past actions and consequences he suffered in…imprisonment and detention away from his family”. He states he respects the laws of the Commonwealth and offered to obey and abide by any conditions imposed on a Bridging visa if so granted.
The Applicant submits that he “went through rehabilitation for 8 months of incarceration as a punishment and paid his debt to the Australian community”. He claims the eight months he spent in gaol provided him with the opportunity to consider his life as a parent and father to his young child. He submits this time allowed him to realise his position and responsibilities as a parent. He has claimed he will “attend any programs” that provide an insight into parental responsibilities.
The Applicant essentially claims his offending behaviour was a result of extenuating circumstances: “it took place because of desperation to survive when my access to finance was zero because of COVID-19, lockdowns, and unemployment”. The birth of his young son, he submits resulted in intolerable hardship that led to his drug use and offending.
The Applicant spoke about his offending at the Tribunal’s hearing:
MR H SINGH: Everything that I done there is a reason behind it, my son. There is no family support for me and I was allowed to do only 20 hours per fortnightly. Yes, Member, my child he was born here and my wife, she then in the college and I was allowed to do a limited hours of work. Pressure was then on me to earn money to raise my child and fulfil our needs. Then that’s the main cause I fall into a bad company, I fall into a drug addiction, to raise my child
The Applicant claims there will not however be any risk of these challenges occurring again in the future and “no chance” he will reoffend. He submits that the financial and emotional support of his sister and brother-in-law especially will minimise any risk.
In support of the Applicant’s assertions, his older sister Ms Mandeep Kaur provided oral testimony at the Tribunal hearing as well as a statutory declaration dated 10 May 2023. Ms Kaur submitted that the Applicant’s offending “is not an accurate reflection of the kind and hardworking person he is” and that she and her husband “have supported him previously and won’t hesitate to do the same for him in the future”. Ms Kaur in her oral testimony stated she and her husband would financially support the Applicant, and provide accommodation, should he be released into the community. Ms Kaur noted that her husband has been a full-time truck driver with Lindsay Transport for approximately five years. She provided a payslip of her husband plus a statement from his bank account that states it currently has a balance of over $13,000.
The Applicant states that in the challenging and stressful environment of COVID-19, when he had limited employment opportunities, no government support, little money, and a new baby, his behaviour descended into criminal offending that took the form of the offences listed previously. It is his submission that there is essentially limited to no risk of his reoffending due to the support of his family members, the success achieved in his own self-improvement through the courses he has undertaken, and his realisation, gained through eight months of incarceration, of his responsibility and duty to his young son. He submits that he has learned some life lessons from his period of incarceration and immigration detention, and will not offend again.
The Respondent submits that the Applicant’s risk of reoffending is moderate, which weighs in favour of refusal of his visa.
The Respondent drew particular attendance to the Sentencing Assessment Report dated 5 May 2022 that was prepared for his sentencing on 12 May 2022. The report assesses the Applicant as “posing a medium risk of reoffending under the Level of Service Inventory – Revised”. In relation to attitude, the report by Ms Ellie Amos, the Community Corrections Officer, states that “Mr Singh took little to no responsibility for his actions, blaming his peers and wife for pressuring him to commit offences in order to secure money to support his and his wife’s drug habits.”
Ms Amos noted that in his interview the Applicant “pivoted from statements indicating he was taking full responsibility for his offending to apportioning blame on his wife whom he believes encouraged his illegal behaviours”. Ms Amos notes the Applicant blamed the influence of anti-social peers for his ongoing drug use and commission of offences.
The Respondent noted that there is no evidence that the Applicant has in fact sought specific treatment to address his drug addiction that he blames for his offending behaviour. The Applicant claimed at the Tribunal‘s hearing that he had:
MR McLAURIN: Okay. When you’ve been in prison, did you ever see a psychologist or a counsellor?
MR SINGH: Yes, I saw a counsellor, like, nearly three times, three to four times. More than four time at detention centre as well. Even I send you, like, my all medical history and in there have a counsellor, all the reports.
MR McLAURIN: So you’re saying you saw a psychologist or a counsellor three times in prison? Three to four times?
MR SINGH: In prison I saw him more than four time. Like, nearly five time. But in detention, like, before – before a month, I saw, like, two to three time every month. Every month, two to three time.
MR McLAURIN: Okay, and you haven’t provided any evidence in relation to this?
MR SINGH: I provide you, that’s why I’m saying, I send already, like, got up and drive off. I send a email to – email, like, all the documents, medical documents, in there. Like, all counsellor reports.
MR McLAURIN: Well, I haven’t received any documents from you?
MR SINGH: Yes.
MR McLAURIN: I’m not sure if the Tribunal has?
DEPUTY PRESIDENT: No, we haven’t received anything.
MR McLAURIN: So there’s no evidence before the tribunal about you doing – undertaking these courses or this treatment?
MR SINGH: Because when I’m going through that, like, I got a history for three months for my detention centre, my medical history, and they gave me, like, as well, my counsellor reports. I don’t know how come it’s not in there.
MR MCLAURIN: I can’t explain that for you, Mr Singh?
MR SINGH: Yes, I know.
MR McLAURIN: The fact is it’s not before the tribunal. You know, there’s no objective evidence that you have undertaken these courses.
The Respondent asserts that there remains an unacceptable risk of the Applicant engaging in further offending. In support of this assertion, the Applicant notes that the Applicant’s behaviour in the community remains untested since his arrest almost 18 months ago. The Respondent submits that the frequency of the Applicant’s previous offending, its opportunistic nature and the likely financial challenges he will face should he be released are all risk factors that weigh in favour of refusal:
MR McLAURIN: The Tribunal doesn’t have a crystal ball. It can’t predict what the Applicant will and will not do in the future, but past events are a reliable indicator of future conduct. And here - and here the frequency of the Applicant’s past offences, which includes breaches of bail, suggest a disregard for Australian laws, which is not indicative of a person who will not re-offend.
The Respondent has submitted that the Applicant’s offending has the potential to cause serious harm to the community. The break and entering offences, of course, cause financial and psychological harm to the victims; but the Applicant’s traffic offences also have the potential to cause very significant physical harm to members of the community.
The Respondent also submitted that the Applicant was still taking little to no responsibility for his criminal conduct and blaming his wife and peers, and this impacted upon any claim he made to have been successfully rehabilitated:
MR McLAURIN: We say that that attitude is borne out in Mr Singh’s evidence to the Tribunal yesterday. Mr Singh repeatedly attributed his actions to his drug use. He again claimed that his peers pressured him and that his wife placed implicit pressure on him, which led to his offences. There was also some attempt at minimisation with Mr Singh claiming that his first offences were an accident and a mistake by police. We say that that suggests there is some lack of insight into his conduct, and again that does not suggest full rehabilitation.
In summary the Respondent stated the evidence before the Tribunal was that the Applicant posed a moderate risk of re-offending, which should weigh very heavily in favour of refusal given the significant harm that may be caused by further offending.
The Tribunal has considered the risk to the community, should the Applicant reoffend. The Tribunal considers the break and enter offences, and the motoring offences, including travelling at dangerous high speeds, whilst under the influence of an illegal drug with an unsecured child in particular to be very serious to individuals and the community. The Tribunal believes that should the Applicant again engage in criminal conduct, or conduct of a similar nature, the nature of the harm to individuals and the community would be significant.
The Tribunal has considered the likelihood of the Applicant engaging in further criminal or anti-social behaviour.
The Tribunal accepts that drug abuse and dependency on illicit drugs has played a factor at some point in the Applicant’s offending. The Applicant discussed at the Tribunal’s hearing his use of heroin, methylamphetamine and cannabis, and the cost of supplying himself and his wife with drugs whilst also continuing to pay household costs such as rent. He stated in oral evidence that he was spending $600 to $700 a week for heroin that was subsequently smoked. Drug dependency has been submitted as both impacting adversely on the Applicant’s decision-making processes, as well as creating a significant financial need that could only be satiated by breaking and entering into property for financial gain.
The Applicant has claimed that he is entirely rehabilitated from his previous drug use. The Applicant has asserted that his time in gaol and immigration detention, combined with his undertaking a number of courses as discussed previously, has meant that he is now healthy, drug-free and at no real risk of relapse.
Whilst the Tribunal accepts the Applicant may not have utilised drugs since first incarcerated last year, the Tribunal is not confident that the relatively sparse evidence of rehabilitation and treatment means the Applicant will not relapse into the drug use that the Applicant asserts is a key factor in his offending should he re-enter the community.
The courses the Applicant holds out as crucial to his self-improvement: Certificates of Completion for Alcohol Awareness (17 June 2022), Emotional Wellbeing (10 June 2022), Thinking Skills (3 June 2022) and the Cannabis Awareness course, whilst undoubtedly of some benefit, provide little evidence to the Tribunal that they will alleviate any relapse the Applicant has in relation to the use of methamphetamines or heroin.
The Applicant claimed at the Tribunal’s hearing that he has also undertaken a ‘Heroin Awareness course’. The oral testimony of such a course was discombobulated and no actual evidence of any such course was provided. The Applicant also claimed to have undertaken counselling sessions and consulted a psychologist on multiple and regular occasions whilst in gaol and immigration detention as part of his rehabilitation. No evidence of such counselling has been provided. The Respondent noted in response:
Mr MCLAURIN: There is no evidence Mr Singh has engaged in treatment to address his drug addiction. He has claimed in his evidence that he attended a course in detention regarding drug addictions. However, no evidence about that course has been provided. Even if the tribunal does accept he did undertake that course, the course itself appeared to be a couple of hours over one week and given the significance of his drug addiction, we say that that in and of itself is not sufficient treatment to address his drug addiction. There’s also no evidence that’s been provided about Mr Singh’s engagement with a psychologist or counsellor in detention or in prison to address his offending behaviour. Again, none of this suggests that - or supports a finding that Mr Singh has rehabilitated.

The Tribunal concurs with the Respondent that there is no evidence of any such professional counselling or psychologist treatment to address the Applicant’s drug addiction and address his offending behaviour. No psychologist report has been submitted. The Tribunal is not satisfied on the evidence that any such rehabilitation treatment has occurred. In relation to the claim that the Applicant undertook a brief ‘Heroin Awareness course’, the Tribunal is prepared to accept the Applicant undertook such a course. By his own testimony however, the course was only a few hours over a single week and was being followed up by other unrelated courses such as computer skills. The Tribunal accepts that some individuals may be able to overcome an addiction to illegal drugs by sheer willpower, self-belief and limited external assistance. The Tribunal does not consider this to be the case in this review given the Applicant’s testimony and evidence that he became reliant on these illicit drugs. The Tribunal is not prepared to accept on the basis of the sparse evidence before it, and the Applicant’s testimony, that the Applicant has been rehabilitated from his addiction to illicit drugs like methamphetamines. Given the Applicant has held up his addiction and use of illicit drugs as a key plank in his offending, the Tribunal places some weight on its concerns in relation to this issue. The Tribunal considers a risk remains of the Applicant returning to illicit drug use if he returns to the community. The subsequent risk of this is the Applicant returning to adverse interactions with the law in order to fund such use.
The Tribunal has a significant concern as to what it considers is the Applicant’s lack of remorse for his offending and his unwillingness to take responsibility for his actions. The Tribunal considers this reticence to engage with past behaviour impacts the risk of the Applicant reoffending. The Tribunal agrees with the Respondent’s submission that the Applicant appears to lack an insight into his offending. Whilst the Applicant continually has apologised and stated his remorse for his offending, these remarks are repeatedly punctuated by attempts to shift the blame onto other individuals (such as his wife) for his offending as well as his own drug use. The Tribunal considers the Applicant’s statements that he accepts he was responsible for his behaviour are of little value considering his broader attempt to shift the blame and responsibility for his behaviour. The Applicant, for instance, at the Tribunal’s hearing responded:
MR McLAURIN: And then on 12 January 2022 you and your wife broke into another person’s residence and stole items valued at between $5000 and $7000. Is that correct?
MR SINGH: Yes, I accepted that and I plead guilty for the charges that put on me regarding the Parramatta theft. There is no truth in this, but still I plead guilty under the influence of drugs, and I already had my sentence for those charges, and Amandeep Kaur still have charges on her.
The Tribunal notes the Applicant also stated that the police made errors in charging him with the theft of his sister’s identification documents and jewellery in July 2021. The Tribunal considers this an attempt by the Applicant to minimise his offending rather than accept responsibility for his behaviour:
MR SINGH: You can call – it – there was – it was a mistake by the police. You can check with my sister; you can call her now. The ring was not belong to her.
The Applicant also attempted to attribute blame for his unlawful and anti-social behaviour to his friends rather than accept genuine responsibility for his past offending:
MR SINGH: But when I was with my friend’s company, but the friends which I already mentioned to you, I leave my family one side, and I was not in control, and I was not aware how much money I have and how much I have to spend.
The Tribunal is of the opinion the Applicant has obfuscated and attempted to ‘cloud the waters’ in relation to his offending:
MR SINGH: It’s not under the wife’s influence or pressure, it’s just cause of peer pressure I did these offences. I started doing small thefts, I fell into a bad habit.
MR McLAURIN: Okay. Sorry – so just under the heading ‘Substance Use’, Mr Singh, on the first dot point it says:
Upon Mr Singh’s arrival to Australia, he developed a daily heroin and ice addiction. He articulated that whilst under the influence of illicit substances, he was highly vulnerable to his wife encouraging his offending behaviours.
So was it the case that your wife would pressure you into engaging in offending behaviours?
MR SINGH: No offending behaviour in my home, so I don’t have any domestic violence charges on me.
MR McLAURIN: No, that’s not what I’m asking - - -?
MR SINGH: ‑‑‑(Language other than English spoken) with my wife, I never, like, behaved like that.
DEPUTY PRESIDENT OWEN: Yes, but that’s not what you’re being asked here. You’re currently being asked if your wife, was she one of those who was putting that sort of pressure on you, to commit some of these offences?
MR McLAURIN: That’s right, Deputy President.
MR SINGH: No pressure by my wife, but saying the things repeatedly, in repetitive, like, it’s your responsibility, that’s it. There’s no pressure. She just tried to, again, explain me my responsibilities. Again, again, that’s where, like -
DEPUTY PRESIDENT OWEN: Can I just ask what – so you’re saying she tried to explain to you your own personal, if you like, responsibilities. Is that what you’re saying?
INTERPRETER: He’s saying, like, his wife, she was saying again again about his responsibilities. She was reminding him about his responsibilities, again and again.
MR McLAURIN: And by your wife doing this, do you agree that it put pressure on you internally to commit these offences to provide for your wife? Is that kind of what you’re trying to say?
MR SINGH: Yes. Then I put burden on me, what had happened.
The Tribunal acknowledges the Applicant’s statements concerning his wife, his friends and his statements concerning his previous offending. Whilst the Tribunal notes the Applicant’s past drug use, in the Tribunal’s view he is not ignorant, nor lacking insight into his activities of the past. The Tribunal considers the Applicant has ultimately attempted to shift the blame for his behaviour to others. He is not in the Tribunal’s opinion prepared to genuinely take responsibility for his actions. Given this, the Tribunal retains significant concerns as to the Applicant’s rehabilitation, and considers he remains a risk of reoffending should he be released into the community.
The Applicant’s claim that his offending occurred because his “brains were taken over by illicit drug use” ignores the fact that his offending commenced in fact prior to his claimed drug use and reliance. The Applicant’s theft of identity documents and jewellery occurred in March 2021, prior to the Applicant claiming his faculties and judgement were impacted by drug use:
MR McLAURIN: So you say you started taking drugs from July 2021. Is that right?
MR SINGH:: Yes, but I was not completely involved in drugs that time. I started taking the drug, but time by time I fall into more and more drug addiction.
…
MR McLAURIN: So, Mr Singh, you’ve said you started your drug habit in July 2021. You’ve also said that the offences that you committed in March 2021 – that is the dealing with proceeds of crime offences – were related to your drug habit. So, is it the case that your drug habit started earlier, or that those offences weren’t related to your drug addiction? Do you see the inconsistency there?
MR SINGH: Yes, I was nearly drug addicted at that time, and these charges are correct.
MR McLAURIN: So your drug addiction started before July 2021, is that right?
MR SINGH: I can’t remember properly from which month.
The Tribunal considers the Applicant’s evidence is indicative of a desire to remain evasive in his answers. If the Applicant is to be believed, and he only started taking drugs in July 2021, then his identity theft offending in March 2021 could not have been caused by a drug addiction as he has claimed. Rather, the suggestion is the Applicant’s offending had more to do with broader financial gain than the financing of a drug addiction. The evidence suggests furthermore that there are questions as to the credibility of the Applicant’s claims and evidence. In relation to risk, the Tribunal concludes from this evidence that the Applicant has not taken responsibility for his offending. He has still attempted to shift the blame for his actions onto other people. He has provided evidence as to the motivation for his offending that is considerably inconsistent. Given the Tribunal’s concerns as to the credibility of such claims by the Applicant, the Tribunal considers he remains a risk of reoffending, and the Applicant’s claims to have been rehabilitated, given his contradictory and self-serving testimony, are very questionable.
The Tribunal accepts that the Applicant’s drug use was a factor in his some of his offending, particularly in regard to his later convictions. The Applicant gave somewhat discombobulated evidence concerning how often he was taking methamphetamines and heroin, but the general suggestion was he was smoking heroin two to three times a day and taking methamphetamines several times a week. The Tribunal has already expressed its concerns as to the risk of reoffending due to its lack of satisfaction as to the Applicant undertaking adequate drug rehabilitation. The financial cost of accessing these amounts of illicit drugs was held out as a reason for the Applicant’s offending behaviour in relation to his break and enter and disposal of property convictions so he could finance his addictions. Given the Tribunal has concerns as to the lack of rehabilitation, the Tribunal similarly considers a risk remains that the Applicant could relapse into similar behaviour should he recommence his drug use if returned to the community without the barriers that have existed in gaol and immigration detention.
The broader challenge of financial hardship – with a new baby – was declared by the Applicant to be another factor that impacted his offending:
Mr SINGH: Due to COVID, there was less work options and nobody give me regular work. Sometimes I worked only two days and the third day they said, ‘Sorry, we don’t have any work. You can come next week.’ I was in a burden so that’s why everything happened: because of the stress and burden during that period.
The Tribunal accepts the Applicant’s claims that he and his wife faced a challenging period during the COVID-19 pandemic and the financial hardship faced was a motivating factor in some of the Applicant’s offending. The Tribunal is not confident that the Applicant will not face similar financial hardship again should he return to the community given the fact he will lack (unless he obtains work rights on his Bridging visa) the ability to seek adequate and ongoing gainful employment. The Tribunal has taken into account the evidence of the Applicant’s sister that she and her husband will support the Applicant, provide accommodation, and notes the Applicant’s sister and brother-in-law have money in the bank and paid employment. The Tribunal nevertheless considers that there is a risk of reoffending due to the ongoing financial hardship of the Applicant considering his lack of ability to seek paid employment.
The Tribunal notes the Applicant’s claims that his wife encouraged him to offend and commit crime. The Applicant stated in his testimony at the Tribunal’s hearing that he will live with his wife at his sister’s property. The Tribunal considers that if the Applicant is correct, and his wife has encouraged him to both take drugs and commit crime, there remains a risk that such a malign influence could again encourage him to offend. The Tribunal’s concerns are heightened by the fact that, according to the Applicant, he did reside with his sister and wife together previously when he committed some of his past offences.
The Tribunal also notes the Applicant’s claims that his drug taking that led to his offending was also at least partially the result of his interaction with a friendship group he and his wife joined in Sydney. The Applicant in cross-examination stated that:
MR SINGH: So one of them went back to India, and after gaol, I changed my contact details and I had no contact with them. One of them tried to contact me. He reached my home, but my family, they don’t allow them to give my details.
MR McLAURIN: Okay. So one of them has tried to contact you since you’ve been released from prison?
MR SINGH: After I leave the prison, like, yes. Once, he, like, went to my home, but my family also not sure, but I think so, that that (indistinct) like.
The Tribunal holds concerns that, should the Applicant re-engage with this delinquent group should he be released into the community, there is a real risk that the Applicant (together with his wife) may relapse into similar drug-taking behaviour. This drug-taking behaviour could conceivably lead to the risk of further offending on the basis of financial necessity to finance this behaviour.
The Tribunal notes in the Applicant’s Personal Circumstances Form of 20 February 2023 the Applicant stated that the stress of his child being removed from his care by the Department of Communities and Justice (DCJ) was a factor that led to emotional stress – which then became drug use and the committing of offences to finance this drug dependency. The Tribunal accepts that the removal of his child – after the Applicant was caught speeding dangerously and taking illicit drugs whilst his young son was unsecured – caused the Applicant some stress. The Applicant does not have custody of his son, with DCJ recommending the child be placed with his parents who would return to India. The Tribunal subsequently considers there is a risk factor that the ongoing emotional stress concerning his son could lead the Applicant to reoffend.
The Tribunal accepts the Respondent’s submission that the Applicant’s repeated offending, offending which occurred relatively recently after his arrival from India, is indicative of a disregard for Australian law. The Tribunal also accepts the Respondent’s submission that the Applicant continues to fail to take responsibility for his previous offending behaviour, as well as to grasp the totality and seriousness of some of his actions. The Tribunal noted that at its hearing, the Applicant continued to exhibit a belief that his past offending had not been either serious or dangerous. This weighs upon the Tribunal’s assessment of the risk of future offending.
The Tribunal considers that the rehabilitation the Applicant has undertaken in relation to his illicit drug use is limited, and the risk of a relapse and subsequent reoffending remains. The Tribunal has considered the supportive mechanisms that the Applicant claims will guard against reoffending – namely the financial support and accommodation provision of his sister – and remains unconvinced these are adequate safeguards against future reoffending, particularly when such support was unsuccessful previously.
The Tribunal accepts that the volume and frequency of the Applicant’s offending has been a concern, as has his general disregard for the law since arriving in Australia. The Tribunal considers this indicative of a risk of reoffending, even taking into account the factors that have influenced the Applicant’s behaviour, such as financial hardship and illicit drug use.
In oral evidence, the Applicant acknowledged his remorse and regret for his offending on multiple occasions. Given the Applicant then shifted to attempting to blame others and shift the burden of responsibility elsewhere, the Tribunal has given his claims of regret limited weight.
The Tribunal has considered the various claims and factors contributing to the Applicant’s past offending conduct, and the risk of reoffending.
The Tribunal is satisfied, having considered the evidence before it, that there remains a risk of the Applicant reoffending, notwithstanding the external support he claims he will have through his family in Australia should he be granted a visa, The Tribunal has considered whether the Applicant’s experience of being incarcerated and his desire to see his child and his sister’s children, may potentially mitigate against any future reoffending as he has submitted. The Tribunal acknowledges the potential but ultimately remains unconvinced.
The Tribunal has considered the Applicant’s claims that his financial situation and drug use led to poor decision making and subsequent offending, and whether this behaviour is indicative of a risk of future reoffending. The Tribunal accepts on the evidence before it that the Applicant suffered some hardship during the pandemic and the lack of access to financial support. The Tribunal has also taken into account his clean record until he arrived in Australia. The Tribunal nevertheless retains considerable concerns that those same risk factors that influenced the Applicant’s behaviour between 2021 and 2022 remain.
In relation to rehabilitation, the Tribunal is not satisfied that the Applicant has illustrated genuine evidence of rehabilitation both whilst incarcerated and in immigration detention. The Tribunal notes the Applicant has engaged in a number of short-form courses to improve himself, and gave this some weight in his favour, but there is no evidence before it of ongoing professional assistance or support by medical professionals. The Tribunal has also taken into account that there is no evidence that the Applicant has engaged in further illicit drug use whilst either in criminal incarceration or immigration detention. The Tribunal gives this some weight, but notes the opportunities for possession of and supply of drugs in detention are not as readily available as they may be in the community. Such temptations would be more obvious should the Applicant be in the community. In the Tribunal’s opinion, a period of abstinence from drugs whilst in detention may potentially suggest an individual will not return to drug use, but it does not provide any sort of a guarantee that the party will not return to drug use. In the circumstances of this case, the Tribunal is not satisfied that the Applicant would not return to drug use and will not reoffend when faced with the factors he previously identified as precipitating his drug use and offending. The Applicant’s conduct in detention may potentially suggest a lower risk of reoffending but it does not indicate the absence of risk. Given all the evidence pertaining to the Applicant, in the circumstances of this case, the Tribunal is of the opinion the risk of reoffending remains.
The Tribunal has assessed the risk of recidivism by the Applicant. For the reasons above, the Tribunal ultimately considers there is a not-insignificant risk he may reoffend. Given the Applicant’s experience with incarceration in the criminal justice system and now the immigration detention system, and his separation from his child and wife, the Tribunal has considered whether such experience may encourage the Applicant to avoid any future adverse interaction with the law. It is not satisfied these factors adequately mitigate any risk. On the basis of all the evidence before it, the Tribunal considers the risk remains.
Conclusion about the risk to the Australian community should the Applicant commit further offences or engage in serious conduct
The Tribunal finds that the risk of reoffending remains. The Tribunal notes the Applicant has not been in the community for any meaningful period since his claimed rehabilitation and abstinence from drug taking. The Tribunal remains of the opinion that the factors that precipitated the Applicant’s criminal offending and drug use remain, notwithstanding the claimed family support that has been pledged, and the Applicant’s testimony that the realisation of his parental responsibilities has had a profound impact on his future behaviour.

The Tribunal is mindful that the Department of Justice Sentencing assessment report dated 5 May 2022 assessed the Applicant at a Medium risk of reoffending. This is clearly higher than low risk and supports the view that the risk continues to exist and that risk is not insignificant.
The Tribunal has formed the view that the risk of reoffending continues to exist. It is not an insignificant risk. The Tribunal finds that were the Applicant to commit further offences or engage in serious conduct, the nature of the harm to individuals and/or the Australian community would be very serious.
Conclusion: Primary Consideration 1
With reference to the weight attributable to this Primary Consideration 1:
(a)The Tribunal finds the nature and seriousness of the Applicant’s conduct has been ‘very serious;’
(b)The Tribunal finds that were the Applicant to reoffend, the nature of the harm to individuals and/or the Australian community would be ‘very serious;’ and
(c)In terms of recidivist risk, the Tribunal has, after a fulsome review of the evidence, concluded that the Applicant remains at risk of reoffending.
The Tribunal has formed the view that the Primary Consideration 1, Protection of the Australian community, weighs very heavily in favour of exercising the discretion to refuse to grant the Applicant’s visa.
Primary Consideration 2 – Family Violence
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
(a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
(a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
(b)the cumulative effect of repeated acts of family violence;
(c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
(i)     the extent to which the person accepts responsibility for their family violence related conduct;
(ii)    the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
(iii)   efforts to address factors which contributed to their conduct; and
(4)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
The Direction defines family violence as “violent, threatening or other behaviour by a person that…causes the family member to be fearful.”
There is no evidence or claim before the Tribunal in relation to family violence committed by the Applicant.
The Tribunal has formed the view that the Primary Consideration 2, Family Violence, is of no relevance and gives it no weight.
Primary Consideration 3 – The Strength Nature and Duration of Ties to Australia
Paragraph 8.3 of the Direction provides:
(1)Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(3)The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4)Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
(a)the length of time the non-citizen has resided in the Australian community, noting that:
(i)     considerable weight should be given to the fact that a noncitizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
(ii)    more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
(iii)   less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the noncitizen began offending soon after arriving in Australia.
The Applicant first arrived in Australia in July 2019 as the holder of a Visitor visa aged 25 years.
The Applicant submits his ties to Australia are his Australian citizen relatives, namely his sister Ms Mandeep Kaur, brother-in-law Mr Ravinder Singh and their two children including a daughter aged 3 years. The Applicant submits that his family will be negatively impacted by the refusal of his visa due to separation. The Applicant submits that his connection with his niece especially will be adversely impacted, as he has played the role of babysitter of his niece over some years. The Applicant states that the delegate failed to place adequate weight on the relationships.
In his oral testimony to the Tribunal the Applicant discussed his relationship with his sister and her family in Australia. The Tribunal accepts the Applicant enjoys a sound relationship with his sister, despite his section 10A conviction for the theft in July 2021 of his sister’s possessions, bank cards and identity documents which were pawned and subsequently used to purchase items. The Tribunal notes that the Applicant has previously resided with his sister and her family. The Tribunal acknowledges that Ms Kaur in her oral evidence to the Tribunal stated her home would be open to the Applicant and his wife should he be granted a Bridging visa.
The Tribunal is prepared to accept the Applicant’s claim that he has a sound relationship with his brother-in-law Mr Singh and their two children, despite the limited evidence pertaining to the relationship before the Tribunal.
The Tribunal nevertheless considers the impact of any refusal of the Applicant’s visa to his relationship with his sister and her family will be limited, and gives the consideration minimal weight. The Tribunal notes that the Applicant has only been in Australia since 2019, and for some 16 months he has been incarcerated or in immigration detention. There is very limited evidence before the Tribunal as to the strength of the relationship the Applicant has with either his sister, his brother-in-law, or their two children.
The Applicant in his oral evidence discussed the close and abiding relationship he has as uncle with his sister’s children. The Respondent noted in response at the Tribunal’s hearing:
Mr McLAURIN: Now just briefly in relation to the other children affected by the decision. These are Mr Singh’s nieces. There’s limited information about their relationship, other than Mr Singh’s and his sister’s evidence that he would babysit the children while she was working. But it appears Mr Singh has had no contact with the younger child. It’s a non-parental relationship. He’s had some contact via video while in detention and prison, and therefore it’s clear that if he is removed to India he could maintain contact with these children through that same means.
The Tribunal agrees with the Respondent’s summary of the evidence. The Tribunal considers the Applicant’s relationship with his niece (and for similar reasons his young nephew) may be genuine, but there is nothing, with respect, remarkable or noteworthy in the evidence before it. The Tribunal notes the Applicant has never actually met his younger niece. He has had some contact with his older niece, but the Tribunal considers the Applicant can continue to be in contact with her via modern electronic and telephonic communication. Similarly, the Tribunal is of the opinion the Applicant can remain in regular and ongoing contact with his sister, brother-in-law, and his other niece via the same forms of communication. The Tribunal accepts that the Applicant and his family members in Australia may face some limited emotional hardship should his visa be refused, but the Tribunal considers the hardship is limited, particularly given the relatively short period the Applicant has resided in Australia. The Tribunal has considered the Applicant’s limited evidence pertaining to his relationship with his sister, his niece, his nephew, and his brother-in-law and ultimately considers the strength, nature and duration of those relationships are of limited weight.
The only other family members in Australia are the Applicant’s wife as well as his son, who was born in Australia in August 2021.
The Tribunal notes that the Applicant’s wife’s own Bridging visa has been refused on character grounds. She was the co-offender in relation to the Applicant’s most significant convictions involving the aggravated break and enter convictions of 12 May 2022. There is little corroborative evidence as to the Applicant’s relationship with her today, though at the Tribunal’s hearing he rejected his earlier statement, as appearing in his Sentencing Assessment Report, that he intended to divorce her.
Whilst the Tribunal accepts the Applicant came to Australia as a dependent family member of his wife’s Student visa in 2020, they have had a child together in Australia, and the Applicant’s wife has been resident in Australia, the Tribunal ultimately gives this relationship very limited weight when considering the impact of the refusal of the Applicant’s visa. The Applicant’s wife has no existing legal right to remain lawfully in Australia indefinitely.
The Tribunal ultimately affords very limited weight to the strength, nature and duration of his relationship to his wife given the relatively limited time she resided in the Australian community.
The Tribunal has also considered the Applicant’s ties to his own son. The Tribunal acknowledges the Applicant’s son has resided in Australia his entire life, noting of course that this does not afford him the rights of an Australian citizen or permanent resident – or to remain in Australia indefinitely – given the migration status of his parents. The Applicant’s son since December 2021 has been in the care of DCJ and he has spent considerable time with foster carers. The most likely scenario, based on the evidence before the Tribunal, is the child will be placed in the care of the Applicant’s parents who have travelled to Australia to meet with DCJ and other authorities with the view the child will return to India with them. The Tribunal accepts the Applicant has a relationship with his son, notwithstanding it has been limited due principally to the Applicant’s offending and disregard for Australian law. Given the likely future travel of his son to India with the Applicant’s parents, should the Applicant also return to India then any refusal of his Bridging visa will be of no consequence when considering the strength, nature and duration of the Applicant’s ties to Australia through his son. The Tribunal affords the relationship, in the context of the primary consideration of the strength, nature and duration of ties to Australia, minimal weight.
The Tribunal accepts the Applicant may have developed some friendships in the community since his arrival in Australia in 2019, though there is very limited evidence as such beyond his statement that the Applicant worked as a lorry driver, though no corroborative evidence as such was submitted. The Tribunal notes the fact the Applicant has been in Australia since 2019, and incarcerated or in detention for over a quarter of that period. If the Applicant has developed any such friendships, the Tribunal considers he would be able to maintain any such relationships to at least some degree through the use of the ubiquitous electronic and telephonic communication channels open today. The Tribunal gives any such relationships negligible weight.
The Tribunal considers that the length of the Applicant’s residence in Australia is not significant and that during his residence he has formed very limited ties to Australia, including family, social, employment and other ties.
With reference to paragraph 8.3, the Tribunal has considered the impact of the decision on the non-citizen’s immediate family members in Australia. This includes family members who are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. The Tribunal has also considered the strength, duration and nature of any family or social links generally with these Australian citizens. In the case of the Applicant, these include his sister, his brother-in-law, his niece, his nephew, his wife and his son.
In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely. The Tribunal notes the Applicant’s sister, brother-in-law and niece and nephew are Australian citizens.
The Tribunal notes that decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In this regard, the Tribunal notes that the Applicant has resided in Australia since 2019. The Tribunal considers the evidence of his ties to Australia, beyond his son, are of a very limited strength and duration.
The Tribunal notes that more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time. The Tribunal considers the Applicant has a limited employment record. There is no evidence before the Tribunal of any positive contribution he has made to the Australian community.
The Tribunal notes that less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia. In the Applicant’s case, the offending commenced relatively recently after his arrival in Australia.
The Tribunal considers that the Applicant’s strength, nature and duration of his ties to Australia are limited. The Tribunal considers the Primary Consideration weighs very minimally in the Applicant’s favour. The Tribunal accepts that his return to India may cause some emotional hardship to his Australian relatives. The Tribunal however considers this hardship can be mitigated with regular communication. The Tribunal notes that the likely situation in regards to his son is that he will travel to India with the Applicant’s own parents.
In relation to Primary Consideration 3, the Tribunal attributes minimal weight in favour of a decision to not refuse the Applicant’s visa.
Primary Consideration 4 – Best Interests of Minor Children in Australia
Paragraph 8.4(1) of the Direction requires a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA, is in the best interests of a child affected by the decision.
Paragraphs 8.4(2) and 8.4(3) contain further considerations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia in paragraph 8.4(4). Those include, relevantly:
·the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
·the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
·the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
·whether there are other persons who already fulfil a parental role in relation to the child;
·any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
·evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
·evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has a young child who was born in Australia in August 2021. The mother of the child is his co-offender.
The Applicant has asserted that the circumstances concerning his son were not “considered appropriately” by the delegate when refusing his visa, and the best interests of the child were not properly evaluated. The Applicant submits the delegate “failed to put maximum weight” on the primary consideration and the decision had already been made to refuse his visa. The Applicant asserts the best interests of both his son, and his Australian citizen niece and nephew, support the grant of his visa.
The Applicant noted in his written submissions that his son is in the care of DCJ and he and his wife do not have access to see him. He asserts “there should be an arrangement to deal with this situation where my family should be re-united under one family unit as soon as possible”. He asserts that he and his wife should have an opportunity to build a healthy relationship with their son. The Applicant has claimed the best interests of the child primary consideration outweighs other primary considerations.

In the case of the Applicant, his offending behaviour does not engage the principle in paragraph 8.5(2), however, given the deeming nature of this consideration it means the Australian community expects that the Australian Government can and should refuse the Applicant’s visa.
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR). In FYBR, the Court affirmed the approach, established in previous authorities, that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction: see Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.5 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government, which the decision maker must have regard to.
In his submission pertaining to ‘Expectations of the Australian Community’, the Applicant stated that being in a custodial environment had provided him enough time to investigate his issues and change his life as a father, husband and responsible man who respects the laws of Australia and shows care for his family and the community. He claims to have been rehabilitated. He stated that he was not a threat to the Australian community and wished to demonstrate to the community he was a responsible citizen that obeyed the law. He stated he was away from the Australian community which also meant he was separated from his wife and child which caused him stress. The Applicant stated his family in Australia, including his parents on Visitor’s visas, would be a positive influence on him.
The Respondent contends that this primary consideration should weigh heavily in favour of the Tribunal refusing the visa. The Respondent notes that the Applicant has committed serious offences, commenced his offending after a relatively short time after his arrival in Australia, and the community would expect that he should not hold a visa.
The Tribunal notes FYBR, where it was held by the Federal Court that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Paragraphs 8.5(1) and 8.5(4) of the Direction state relevantly:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct … the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia
…
(4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.”
The Tribunal has found the Applicant engaged in ‘very serious’ offending. The question before the Tribunal subsequently is what the expectation of the Australian community is concerning a non-citizen who has engaged in very serious offending through a range of offences involving multiple aggravated break and enter offences, receiving/disposing of stolen property, recklessly dealing with the proceeds of crime, possessing prohibited drugs, speeding in excess of 45 km/h whilst under the influence of illicit drugs, and other more minor offending.
Paragraph 8.5(1) states the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
In his submissions, the Applicant’s main contention is that he is rehabilitated, has reconsidered his life, and will not offend again.
As discussed previously, the Tribunal is not satisfied that the Applicant is fully reformed and can be trusted in the community. As for the duration of his stay in Australia, the Tribunal is of the opinion that the community expectations would consider this factor more significant if the Applicant held a permanent or at least a long-term visa to enable him to live in Australia. In this case, the Applicant has held temporary visas, including that of a dependant on his wife. The Tribunal is of the opinion that lesser weight ought to be given to the length of the Applicant’s stay (already admittedly a short stay), in circumstances where he has not been granted a permanent visa to remain in Australia.
The Tribunal accepts that the Applicant has undertaken a number of courses aimed at improving himself and his outlook whilst incarcerated and in immigration detention. He has expressed remorse and a desire to change for the benefit of his child, yet the Tribunal gives these statements very limited weight due to his continued attempts to obfuscate, justify his actions and blame others rather than take responsibility for his offending. The Tribunal notes the Applicant commenced his offending relatively recently after arriving in the Australian community. The Applicant’s recidivism and demonstrated contempt for Australian law – further manifested in such offending as failing to attend his bail acknowledgement – is significant. The Tribunal notes that the Applicant has spent considerable time in gaol and immigration detention, not in the community, so he has not had the opportunity to test his claimed resolve to avoid factors like drugs that he asserts have impacted his offending. There is little probative evidence to support the Applicant’s contention that he will change his behaviour, avoid drugs and excess alcohol, and not reoffend, because he has not had the opportunity to do so.
The Tribunal notes the Applicant’s undertakings to abide in the future with Australian law. Given his recidivism and the lack of corroborative evidence of rehabilitation from his drug addictions, the Tribunal is of the view that the Australian community would be of the view that the risk of reoffending continues. The Tribunal is of the opinion that the community would find the Applicant’s offending to be very serious. It is also of some significance that the break and enter offences were multiple. The offending of excess speeding whilst talking illicit drugs and a 4-month unsecured child in his vehicle would, in the Tribunal’s opinion, appal the Australian community. The Tribunal has found the Applicant’s behaviour to be very serious.
The Tribunal accepts that there will be a degree of hardship caused to the Applicant if he is not granted the visa, most notably because it may separate him from his wife and child. The Australian community may view such matters as favouring the exercise of the discretion in favour of granting the visa. The Tribunal however notes the evidence before it of the Applicant’s child accompanying the Applicant’s parents to India, a stance supported by the Applicant’s wife who has also had her Bridging visa refused on character grounds. The likely scenario in the Tribunal’s opinion is that the Applicant, his child and his wife will not be separated if all return to India, as would appear the likely scenario. The Tribunal is furthermore of the view that the Australian community would also give due regard to the nature of the offending and the Applicant’s demonstrated and repeated disregard for Australian law and the Australian community. Notwithstanding the Applicant’s claims concerning his rehabilitation, his separation from his wife and child and his commitment to uphold the laws of Australia, the Tribunal’s view is that the Australian community would firmly expect that the Applicant should not hold a visa.
The Tribunal has formed the view that the Primary Consideration 5, expectations of the Australian community, weighs very heavily in favour of exercising the discretion to refuse to grant the Applicant’s visa.
Other Considerations
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction.
Direction 9(1)(a) – Legal consequence of the decision
Paragraph 9.1 of the Direction directs a decision-maker to take into account the following:
(1)Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.
(2)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
(3)International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
9.1.1 Non-citizens covered by a protection finding
(1)Where a protection finding (as defined in section 197C of the Act) has been made for a non-citizen in the course of considering a protection visa application made by the non-citizen, this indicates that non-refoulement obligations are engaged in relation to the non-citizen.
(2)Section 197C(3) ensures that, except in the limited circumstances specified in section 197C(3)(c), section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen in the course of considering their application for a protection visa. This means the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under section 501 or 501CA is made for the non-citizen and they become, or remain, an unlawful non-citizen as a result. Instead, the non-citizen must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.
(3)Decision-makers should also be mindful that where the refusal, cancellation or non-revocation decision concerns a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations.
9.1.2 Non-citizens not covered by a protection finding
(1)Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.
(2)However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
(3)Non-refoulement obligations that have been identified for a non-citizen with respect to a country, via an International Treaties Obligations Assessment or some other process outside the protection visa process, would not engage section 197C(3) to preclude removal of the non-citizen to that country. In these circumstances, in making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct. However, that does not mean an adverse decision under section 501 or 501CA cannot be made for the non-citizen. A refusal, cancellation or non-revocation decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the noncitizen makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.
There is no claim by the Applicant, or evidence before the Tribunal, in relation to Australia’s international non-refoulment obligations.
No assessment by the Tribunal is necessary in this review.
The Tribunal notes the Applicant in his oral testimony at one point, when responding to questions as to why he had never lodged either a substantive visa application or application for Ministerial Intervention, appeared to foreshadow a potential future Protection claim:
MR McLAURIN: So to be clear, you haven’t identified what type of visa you may apply for to be able to stay in Australia?
MR SINGH: Yes, we identified the visa which we want to own. And I can’t apply for a Protection visa until my Bridging visa will be granted, they said. So we are stuck between. I heard a migration agent in Harris Park, the Friends Immigration. I obtained my both visa through him.
The Tribunal notes the Applicant has not submitted any evidence or made any formal claims in support of such a Protection claim. The Tribunal considers the statement is more suggestive of a speculative future claim for migration purposes rather than a claim based on any evidence and gives it no weight.
The Tribunal has formed the view that the Other Consideration (a), Legal consequence of the decision, is of no relevance and weighs neither in favour nor against exercising the discretion to refuse to grant the Applicant’s visa.
Direction 9(1)(b) – Extent of impediments if removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant in his written submissions states that “Currently I am not putting any thoughts on this matter” because his family – namely himself, his wife and child – are currently separated. He states he would prefer to focus on reuniting his family.
The Respondent notes that the Applicant is 28 years of age with no known health issues. The Respondent submits that the Applicant, having moved to Australia aged 25 years, is likely to experience little language or cultural barriers if his visa is refused. The Respondent also notes that the Applicant lived in India for most of his life, meaning that there would be no appreciable cultural, social or linguistic barriers preventing the Applicant re-establishing himself there. The Respondent concedes some emotional hardship, but notes the Applicant will be able to access the same social, medical and economic support as other Indian citizens. The Respondent also noted the Applicant has a number of close family members in India, and it is reasonable to expect he would receive some support from them:
MR McLAURIN: And just finally on the impediments to removal consideration. If Mr Singh returned to India, he has two parents, two brothers, a sister, an uncle and four cousins there. Mr Singh has indicated that although his - he said his family won’t be able to provide support because his brother is working, there wasn’t any clear explanation as to why this impeded the other family members from providing support. I think it’s reasonable for the Tribunal to infer that he would be afforded some support by these family members.
Mr Singh believes that he could possibly obtain a teaching role in India and I note that he has a number of qualifications and experience in Australia which may put him in good stead for future employment in India. Mr Singh has given evidence that he has no health or mental health issues and there is unlikely to be any cultural barriers given he arrived in Australia at the age of 25. So we say that this consideration should only be afforded limited weight against refusal.
The Respondent submits the Applicant’s work experience would assist in securing gainful employment.

The Applicant did not press any significant impediments to his return to India. No concerns were raised in relation to health and treatment access in India by the Applicant. There is no evidence or claim of any health issues or concerns facing the Applicant.
The Tribunal accepts that the Applicant would face very limited impediments upon returning to India beyond separating from his child and wife in Australia, neither of whom have any existing legal right to remain in Australia permanently, and both likely to also relocate from Australia to India following the conclusion of existing legal proceedings.
There are few other impediments to the Applicant. The Tribunal accepts the Respondent’s submissions that the Applicant’s age, employment skills and familiarity with India means that he would be able to effectively reintegrate into Indian society. The Applicant has only been in Australia for several years. Beyond his wife, brother-in law and his niece and nephew he has no other close family members (beyond his wife and child) permanently in Australia and no employment to return to in Australia. The Tribunal does not consider the Applicant will face any significant challenge in reintegrating into everyday life in India. The Tribunal does not consider there are any substantial language or cultural barriers he will face in establishing himself and maintaining basic living standards.
The Tribunal has formed the view that the Other Consideration (b), extent of impediments if removed, weighs very slightly, but not determinately, in favour of granting the visa. The Tribunal has given the consideration very limited weight.
Direction 9(1)(c) – Impact on victims
Paragraph 9.3 of the Direction directs a decision-maker to take into account the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no information before the Tribunal about any victims of the Applicant’s offending.
The Applicant stated he has regrets over his offending and would like to apologise to the victims of his behaviour. He states he is remorseful and did not intend to harm them deliberately.
The Tribunal has formed the view that the Other Consideration (c), impact on victims, weighs neither in favour nor against exercising the discretion to refuse to grant the Applicant’s visa.
Direction 9(1)(d) – Impact on Australian business interests
Paragraph 9.4 of the Direction directs a decision-maker to take into account the following:
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Respondent has made no submissions on this consideration. The removal of the Applicant from Australia will nevertheless not have any impact on Australia’s business interests. The removal of the Applicant will not significantly compromise the delivery of a major project or delivery of an important service in Australia.
The Tribunal has formed the view that the Other Consideration (d), impact on Australian business interests, weighs neither in favour nor against exercising the discretion to refuse to grant the Applicant’s visa.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)legal consequence of decision under section 501 or section 501CA: weighs neither in favour nor against exercising the discretion to refuse to grant the Applicant’s visa.
(b)extent of impediments if removed: weighs very slightly against exercising the discretion to refuse to grant the Applicant’s visa.
(c)impact on victims: weighs neither in favour nor against exercising the discretion to refuse to grant the Applicant’s visa.
(d)the impact on Australian business interests: weighs neither in favour or against exercising the discretion to refuse to grant the Applicant’s visa.
CONCLUSION
The Applicant does not satisfy the character test. The discretion to refuse to grant the visa is subsequently enlivened. In considering how to exercise its discretion, the Tribunal has considered the totality of the Applicant’s circumstances, noting that the considerations set out in Direction 99 are not exhaustive.
A factor that weighs heavily against revocation is the Primary Consideration 1, the protection of the Australian community. The Applicant has committed a large range of offences and some that are objectively very serious. His recidivism and his lack of regard for the Australian community are matters of significant concern. The Tribunal retains concerns that the Applicant is not rehabilitated from illicit drug use as he has claimed and remains at risk of reoffending. It has been submitted that the Applicant’s experience in Australia’s corrections system and his gaoling will act as a deterrent. The Tribunal notes the claim, but retains its concerns.
The Tribunal considers that there is a very serious risk to the Australian community should the Applicant commit further offences or engage in serious conduct. Specifically, the Tribunal considers the nature of the harm to individuals or the Australian community if the Applicant engages in further criminal or other serious conduct.
The Tribunal has formed the view that the protection of the Australian community weighs heavily in favour of exercising the discretion to refuse to grant the visa. The Tribunal has also found, for the reasons set out above, that the expectations of the Australian community would be such that the visa should not be granted.
The Tribunal has considered the primary consideration pertaining to the best interests of the child. The issue is complex. The Tribunal acknowledges the Applicant’s young son who was removed from the care of himself and his wife in December 2021. The Tribunal notes that DCJ and the Applicant’s broader family have engaged significantly over the last 18 months in an attempt to move forward from what has undoubtedly been an unhappy and stressful period for all the family. The Applicant’s parents are now in Australia with DCJ favouring the return of the Applicant’s son with them to India. This plan, for the Applicant’s son to return to India with his paternal grandparents, is also supported by the child’s mother, the Applicant’s wife. The Tribunal notes that DCJ has opposed the child being returned to the Applicant. The Tribunal furthermore notes the oral testimony of the Applicant who stated he would prefer to remain in Australia even if his son went to India with his parents. The Tribunal considers the usual ideal situation is for a child to remain with their father and mother. This, in the Tribunal’s view, is not one of those situations. Given all the evidence before the Tribunal on this matter, and the evidence of the Applicant and his behaviour, the Tribunal has only weighed this primary consideration concerning the best interests of the child moderately against exercising the discretion to refuse to grant the Applicant’s visa. The Tribunal has also taken into account the Applicant’s claimed relationship with his Australian niece and nephew (whom the Tribunal considers would not be significantly adversely affected by a decision to grant the visa to the Applicant) in attributing only very slight weight against exercising the discretion to refuse to grant the Applicant’s visa.
In relation to Other Considerations, only Other Consideration (b), extent of impediments to removal, is of any relevance. This Other Consideration weighs very slightly against exercising the discretion to refuse to grant the Applicant’s visa. The Tribunal considers the Applicant would face limited impediments were he to return to India, beyond the physical absence from his family members in Australia. His age, health, immediate family members in India, relatively short stay in Australia, employment skills, and familiarity with Indian culture, would all mitigate against any challenges he might have.
It is necessary to weigh up all of the primary and other considerations in considering whether to exercise the discretion to refuse to grant the Applicant’s visa.
·Primary consideration 1 weighs very heavily in favour of exercising the discretion.
·Primary consideration 2 is neutral.
·Primary consideration 3 weighs very slightly against exercising the discretion.
·Primary consideration 4 weighs very slightly against exercising the discretion.
·Primary consideration 5 weighs very heavily in favour of exercising the discretion.
·Other considerations (a), (c) and (d) are neutral.
·Other consideration (b) weighs very slightly against exercising the discretion.
Having regard to all the relevant circumstances, the Tribunal finds that the proper application of the Direction favours the Tribunal exercising the discretion to refuse to grant the Applicant’s Visa. The Tribunal finds that there is “another reason” pursuant to sub-paragraph 501CA(4)(b)(ii) of the Act to refuse to grant the visa.
DECISION
The decision under review is affirmed.

I certify that the preceding two hundred and fifty-eight (258) paragraphs are a true copy of the reasons for the decision herein of Deputy President Justin Owen

..................................[SGD]......................................
Associate
Dated: 27 June 2023

Date(s) of hearing: 13 and 14 June 2023

Applicant: Self-represented

Solicitors for the Respondent: Mr H McLaurin, MinterEllison
ANNEXURES
Annexure A – Applicant’s Offending History

Court	Court Date	Offence	Court Result
Liverpool Local Court	27 October 2021	Enter inclosed land not prescribed premises w/o lawful excuse	Fine $500
		Not comply with noticed direction re s 7/8/9 – COVID 19	Fine $1,000
		Not comply with noticed direction re s 7/8/9 – COVID 19	Fine $1,000
Blacktown Local Court	1 December 2021	Possess prohibited drug	Fine $700
Blacktown Local Court	12 May 2022	Agg B&E dwelling etc in company steal <=$60000-T1 – 2 counts	Imprisonment (Aggregate): 16 months (12 months non-parole) Note: Reduced to 8 months non-parole on appeal 27 June 2022
		Goods in personal custody suspected being stolen (not m/v)
		Receive/dispose stolen property-min. indict. off. >$5000-T1
Blacktown Local Court (cont.)	12 May 2022 (cont.)	Drive vehicle, illicit drug present in blood etc - 1st off	Fine $400; Disqualification driving 6 months
		Drive with child under 6 months not restrained as prescribed	Fine $200
		Class A m/v exceed speed > 45 km/h - Lidar	Fine $2,500; Disqualification driving 6 months
		Make/furnish a statement which is false/misleading	s10A Conviction
		Goods suspected stolen in/on premises (not m/v)	s10A Conviction
		Receive/dispose stolen property-min. indict. off. <=$5000-T2	s10A Conviction
		Recklessly deal with proceeds of crime <=$5000-T2	s10A Conviction
		Fail to appear in accordance with bail acknowledgment	s10A Conviction
Blacktown Local Court (cont.)	12 May 2022 (cont.)	Fail to comply with any other wear face covering directive	s10A Conviction
Blacktown Local Court (cont.)	12 May 2022 (cont.)	Goods suspected stolen in/on premises (not m/v) – 2 counts	s10A Conviction

Annexure B – Exhibit List

Applicant’s Material

Exhibit No.

Description

Date of Material

Date Lodged

1

Statement of Facts, Issues and Contentions

8 May 2023

9 May 2023

2

Statutory Declaration from Mandeep Kaur (Applicant’s Sister)

10 May 2023

12 May 2023

3

Pay Slip, Ravinder Singh (Applicant’s Brother-in-Law)

Undated

7 June 2023

4

Bank Account Details and Credit Balance, Ravinder Singh

4 June 2023

7 June 2023

5

Updated Statement of Facts, Issues and Contentions

4 June 2023

7 June 2023

Respondent’s Material

Exhibit No.

Description

Date of Material

Date Lodged

6

Statement of Facts, Issues and Contentions

26 May 2023

26 May 2023

7. G-documents filed 26 May 2023
8. Supplementary G-Documents filed 21 April 2023
9. Further Supplementary G-Documents filed 7 June 2023

[2023] AATA 1852

27 June 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Date(s) of hearing:	13 and 14 June 2023
Applicant:	Self-represented
Solicitors for the Respondent:	Mr H McLaurin, MinterEllison

Applicant’s Material
Exhibit No.	Description	Date of Material	Date Lodged
1	Statement of Facts, Issues and Contentions	8 May 2023	9 May 2023
2	Statutory Declaration from Mandeep Kaur (Applicant’s Sister)	10 May 2023	12 May 2023
3	Pay Slip, Ravinder Singh (Applicant’s Brother-in-Law)	Undated	7 June 2023
4	Bank Account Details and Credit Balance, Ravinder Singh	4 June 2023	7 June 2023
5	Updated Statement of Facts, Issues and Contentions	4 June 2023	7 June 2023

Respondent’s Material
Exhibit No.	Description	Date of Material	Date Lodged
6	Statement of Facts, Issues and Contentions	26 May 2023	26 May 2023