Singh and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2022] AATA 3210
•6 October 2022
Singh and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3210 (6 October 2022)
Division:GENERAL DIVISION
File Number:2022/6003
Re:Mandeep Singh
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Senior Member J Rau SC
Date:6 October 2022
Place:Adelaide
The decision under review is set aside and remitted to the Department with a direction that the visa not be refused under s 501(1) of the Act.
.......................[sgnd]............................................
Senior Member J Rau SCCatchwords
MIGRATION – refusal to grant Bridging E (Class WE) Visa under section 501(1)- application of the character test –– whether the discretion to refuse to grant the visa under section 501 (1) should be exercised – consideration of Ministerial Direction No. 90 - decision under review is set aside and remitted to the Department with a direction that the visa not be refused under s 501(1) of the Act.
Legislation
Migration Act 1958 (Cth)
Cases
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Afu v Minister for Home Affairs [2018] FCA 1311
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
FYBR v Minister for Home Affairs [2019] FCA 50
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033
KLLV and Minister for Immigration and Border Protection (Migration) [2016] AATA 896
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1046
SECONDARY MATERIAL
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member J Rau SC
6 October 2022
INTRODUCTION
The Applicant seeks a review of the decision by a delegate of the Minister for Home Affairs (“the Respondent”) made under section 501(1) of the Migration Act 1958 (Cth) (“the Act”) on 18 July 2022, not to grant a Bridging E (Class WE) Visa (“the Visa”). His visa application was refused on character grounds under section 501(1), on the basis that he did not pass the character test.[1]
[1] Exhibit 3, G3, pp 6-9.
Section 501(1) of the Act provides:
“The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.”
Section 501(6)(d) (i) and (ii) of the Act relevantly provide that a person does not pass the character test if:
“in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i) Engage in criminal conduct in Australia; or
(ii)Harass, molest, intimidate or stalk another person in Australia.”
The first question before the Tribunal is whether there is “a risk” that the Applicant would “engage in criminal conduct”, or “harass, molest, intimidate or stalk another person”.
If the answer to that question is in the affirmative, the Tribunal must then consider whether it should exercise its discretion to refuse to grant the visa.
The hearing was held on 20 and 21 September 2022. The Applicant was represented by Mr Parambir Singh Sekhon of Sekhon Lawyers and the Respondent was represented by Mr Samuel Cummings of Sparke Helmore Lawyers.
The Applicant gave evidence in person through a Punjabi interpreter. He generally answered questions in a responsive manner. However, there were some aspects of his evidence that I considered to be unreliable. Examples are discussed below. This may be partially explicable by the impact of his drug use at relevant times in the past. Where there is independent evidence available at these times, I have generally given more weight to it, than to the Applicant’s account.
The Applicant called Mr Harpreet Singh Lehar. He gave evidence by telephone. His evidence was confined to the discreet topic of the Applicant’s conduct between March and June of 2021 and his interactions with the Sikh community. Mr Lehar is not a trained counsellor. He might fairly be described as a “good Samaritan”. It was clear that he had little knowledge of the Applicant’s drug or criminal offending history. He has no personal experience in dealing with drug addiction.
The Applicant called Mr Michael Toole. He also gave evidence by telephone. His evidence was that he had supervised the Applicant as a worker in a trucking business for a period of about 3 months. He found him to be a good worker. He would re-employ him if he were returned to the community.
Most importantly, the Applicant called his wife Ms Manpreet Kaur (“Ms Kaur”). She gave evidence by telephone. She responded in an appropriate and clear manner to questions. I formed the view that she was generally doing her best to assist the Tribunal. That said, I gained the impression that she was prepared to give the Applicant a chance, primarily because she requires help in juggling her employment as an Enrolled Nurse and her duties as a mother of two small children. Her own visa is dependent upon her continuing to work, at least for the next 5 years. There is a tangible benefit to her if the Applicant can remain here. Viewed from this perspective, it is in her best interests to downplay the risk of the Applicant reoffending. Her connection to the Applicant is not however such that she would return to India with him if he were to be refused a visa to remain here. I have considered her motivation when assessing her evidence. Her evidence was however, of significance in this case. On the evidence, as set out below, it is uncontested that she has been the victim of “family violence” at the hands of the Applicant. Her evidence about her current attitude to the Applicant and her asserted confidence that he has put his drug taking behind him, form a critical element in his case.
Background Facts
The Applicant was born in Punjab, India on 15 May 1986. He is a 36-year-old Indian citizen.
On 2 October 2008, the Applicant married Ms Kaur in India.[2]
[2] Exhibit 3, G27, Attachment R, p 141.
On 9 April 2009, the Applicant and Ms Kaur arrived in Australia. He came as a dependant partner to a Student 572 Visa holder (Ms Kaur). This visa was granted on 26 February 2009, to cease on 28 March 2011. The Applicant and Ms Kaur settled in Sydney.
The Applicant has returned to India to visit family, in February-March 2010 and in March 2015.[3]
[3] Exhibit 6, RTB1, p 21.
The Applicant has worked for periods as a truck driver and Ms Kaur has obtained qualifications as an Enrolled Nurse.[4] She is required to work as a condition of her visa. She works 50-60 hours per fortnight.
[4] Exhibit 3, G32, Attachment T4, p 150.
On 28 April 2011, the Applicant was granted another dependant Student 572 Visa, to cease on 15 March 2013.
On 3 April 2013, the Applicant was granted another dependant Student 572 Visa, to cease on 18 March 2014.
On 18 March 2014, the Applicant was granted a temporary work (Skilled) (secondary) 457 dependant visa, to cease on 18 March 2018.[5]
[5] Ibid, G12, Attachment I, p 54.
On 3 May 2017, Ms Kaur applied for a Regional Sponsor Migration Scheme (RSMS) subclass 187 Visa. The Applicant was included in that application as her spouse. On the same day, the Applicant was granted WA-010 Bridging Visa, which was tied to the substantive (RSMS) Visa.[6]
[6] Ibid, G14, Attachment K, p 74.
On 12 April 2018, the Applicant’s daughter (“Child A”) was born.[7]
[7] Ibid, G12, Attachment I, p 54 and G27, Attachment R, p 143.
The Applicant told the Tribunal that in mid-2018 he was introduced to methamphetamine by a co-worker.[8] He quickly became addicted. By December of 2018, his behaviour had become erratic. He confessed to his wife that he was using methamphetamine. He sought medical treatment and was prescribed suboxone to manage his addiction. It didn’t work.
[8] Ibid, G31, Attachment T3, p 149 and G35, Attachment U2, p 155.
The Applicant was somewhat vague, or perhaps even cagey about his drug history. He initially told the Tribunal that started taking drugs when he came to Adelaide in June 2019. When contrary statements from Ms. Kaur were put to him, he conceded that the drug taking started about a year earlier. This is relevant to his reliability as a witness. The same can be said of his explanation that his drug taking, and offending were brought on by the stress of living with members of Ms Kaur’s family, in Adelaide. His drug use was well entrenched before his move to Adelaide. It is also the case that the duration of his addiction was longer than he would have had the Tribunal initially believe.
On 18 May 2019, the RSMS visa was refused.[9]
[9] Ibid, G12, Attachment I, p 54 and G14, Attachment K, p 74.
On 26 May 2019, Ms Kaur and the Applicant, lodged an application for review of the RSMS visa refusal, with this Tribunal.[10]
[10] Ibid, G12, Attachment I, p 54 and G16, Attachment M, p 89.
In June 2019, the Applicant and Ms Kaur moved from Sydney to Adelaide, ostensibly to get away from the drug scene. The Applicant states that he found drugs even easier to get in Adelaide. Ms Kaur says much the same in her statement of 15 September 2021.[11]
[11] Ibid, G36, Attachment U3, p 157.
“……
My husband first confessed to me in 2019 December that he is getting addicted to (METH drug) and want my help to get rid of this habit. I wasn’t aware what kind of drug it is, but Mandeep told me he is getting treated in rehab centre in (Auburn NSW 2144) but still Mandeep can’t control himself and getting it occasionally.
I’ve seen my husband not sleeping days and days his behaviour started changing with me as I was 3 month pregnant and had my 8 months old daughter. We both decided to move from NSW to SA to get better life I came here in June 2019. Mandeep was ok for few months he wasn’t clean but he was trying his best he can we found that his drug in every corner in SA. Mandeep’s doses become increase and he was in more arguments and we had kinds of fight and hear for my safety. I told him off and decided to live separately after the birth of my son (September 2019). Mandeep end up living in homeless or somewhere in hotel which was arrange by his brother. Many incidents happen while he was away. Mandeep apologise his behaviour and promise to bring his normal life back he realised the consequences for this drug. We had final court on where we both (me and Mandeep was present) in ELIZABETH COURT. We both was successful to satisfied Judge the value of Mandeep in my life at this stage and his behaviour changes a lot and I’m seeing same person as Mandeep was before. He is the best partner doing all his parenting duties. I am working at night where Mandeep stayed at home with kids. I really wanted to become a nurse in my life so Mandeep paid off my fees which is successfully completed last week. I already got offer to work as a nurse, just waiting for my registration from AHPRA. All things was only possible with Mandeep’s patience. His visa cancellation will really affected to my whole life. My married life will be destroyed I really long term relationship all my commitment will be cancelled I couldn’t work anymore especially I would never disclose to my kids that where the father is. They both are very much attached with Mandeep. I will witnessed that while Mandeep my kids wait whole day for him to come home. But without Mandeep it will be do depressed.”[12]
[12] Ibid.
On 18 September 2019, the Applicant’s son (“Child B”) was born.[13] Ms Kaur says that it was immediately after this, that she decided to separate from the Applicant due to his drug use.[14] He left the house and she remained there with the children. The Applicant said that he stayed with a friend or slept in his car for a period of some 4-5 months. He did not see his children during this period.
[13] Ibid, G27, Attachment R, p 142.
[14] Ibid, G36, Attachment U3, p 157.
On 23 October 2019, a SAPOL Occurrence Report refers to an incident of domestic violence.[15]
[15] Exhibit 6, RTB6, p 78.
On 19 December 2019, a SAPOL Occurrence Report states in respect of an incident 17 December 2019:[16]
[16] Ibid, RTB6, p 78.
“Victim version - 2 days prior the suspect was smashing things aggressively and the victim accidently dropped a picture of the suspects deceased father. The suspect grabbed her by the arm causing a bruise. The victim wants the suspect to move out. The victim is not willing to provide police with a statement until she speaks to her father.
Suspect version - states that the victim's family are trying to get the victim to divorce the suspect and return to India so that the victim's family can get a visa to Australia by looking after the victim's children. The suspect stated that his dad recently died and the victim was saying mean things about his family. The victim then stood her foot on a picture of the suspect's late dad, showing disrespect to his family. The suspect grabbed the victim by the arm to pull her off the picture of his father.”[17]
[17] Ibid, RTB6 pp 74 and 81.
“INTERVENTION ORDER/S
There are no Intervention Order/s recorded between the pair.
FIREARMS
There are no firearms or firearms licences recorded to either party.
WELFARE BARRING ORDER
N/A
OUTCOME
Victim spoken to – victim advised that she has forgiven the suspect and wishes to give him one more chance. I questioned her why she had made that decision and she stated that she had spoken with her family and decided it was the best decision right now.
She stated she did not want to provide a statement.
The victim refused DV services – DV letter being sent with resources (Migrant Women’s Support).
VC complete / finalised – there are no further actions required by NCFIS.”[18][18] Ibid, RTB6, p 78.
The Applicant said in evidence that he recalled this incident and that he was” out of control because of the drugs”.
On 29 January 2020, A SAPOL Apprehension Report states as follows:
“……
***Victim Version***
Victim 1 in this matter is ), who is the partner of the defendant.
Victim 2 in this matter is ), who is the daughter of the defendant.
Victim 3 in this matter is ), who is the son of the defendant.
Victim 1 states that she currently lives with the defendant at . They have been married for approximately 11 years and have two children together, aged 22 months old and aged 4 months old.The victim states she moved to Australia with the defendant approximately eleven (11) years ago. Recently they have applied for residency in Australia, with the defendant being on a bridging Visa. The residency of the defendant is reliant on the victim.
The victim states in the last year, the defendant has become more aggressive toward the victim and her family and has assaulted her by hitting her on the arm and head on various occasions.
The victim has recently found out that the defendant had begun taking drugs which began to affect their relationship and finances.
At about 1.00 pm on Wednesday 29th January 2020, the victim was at home with the children when the defendant returned to the house from being out.
The victim and the defendant have had an argument regarding family issues and their current financial issues. The argument occurred in the kitchen where …… was walking about the place and ….. was in the cot nearby in the lounge room. The argument escalated when the defendant has grabbed the victim by the hair on her head and pulled it.
The victim tried to remove the defendant's hand from her head when the defendant grabbed the victims hand and pulled her pinky finger backwards causing pain.
The defendant has then let go of the defendant before picking up the victim's phone and throwing it on the floor before walking out of the house and leaving.
The victim then called police and later provided a signed statement to police.
***Police Version***
At about 3.00pm on Wednesday 29th January 2020, Police attended in relation to a domestic disturbance.
Upon arrival, police spoke with the victim who provided signed statement to
Police.Police raised an occurrence in relation to the matter, refers,
At about 11.30 pm on Wednesday 29th January 2020, Police attended after the victim called police as the defendant had returned home.
At about 11.37 pm the defendant was placed under arrest, handcuffed, and
escorted to the rear of the police vehicle.The defendant was provided his arrest rights recorded on Police Body Worn Video
(BWV) and was then conveyed to the Elizabeth Police Station.Police formed the opinion that there were grounds to issue a Police Interim Intervention Order (PIIO) against the defendant to prevent further acts of abuse being committed against the victim and the two children.
Inspector Y authorised the PIIO to be issued to the defendant. The order was explained to the defendant by Police at the Elizabeth Police Station Cell Complex.
The defendant was charged and left in the custody of cell staff.”[19]
[19] Ibid, RTB6, pp 61-62.
31.Another SAPOL record dated 29 January 2020 states:
“At about 1300hrs Wednesday 29th January 2020 was at her home address of when her husband, SINGH, MANDEEP has returned home. Both of their children were in the room when he has started arguing with her about their financial situation. He has then grabbed her by her hair and pulled it. The victim has tried to remove Mandeep's hand when he has grabbed her pinky finger and pulled it backwards causing pain. (Nil medical treatment required)
SINGH, MANDEEP has then pulled the door of the kitchen cupboard and gone to throw it towards the victim. H noticed that she was on the phone Police, dropped the door, grabbed the victims phone and threw it on the floor. Mandeep has then left.
The victim stated that SINGH has been using ice daily for more than 1 year and his aggressive behaviour is becoming more frequent. He is financially reliant on the victim as her family supports them. SINGH owes thousands of dollars to friends of the victim that he has borrowed to buy drugs. SINGH's Australian residency is also completely dependant on the victim.
The victim does not want any contact with SINGH. Both of their names are on the lease for the house, but the victims family pays for everything. Neither party has any family or friends in Adelaide.”[20]
[20] Ibid, RTB6, p 87.
32.A SAPOL Detailed Occurrence Report of 20 April 2020 states:
“At about 1110 hrs on 20/04/20 Police tasked to attend in relation to a check welfare on a male sleeping in his vehicle. Police spoke to the occupant, Mandeep SINGH who stated he was waiting for his cousin to arrive to jump start his car and then he would be staying with his cousin in until he finds other accommodation. Checks revealed SINGH had an unserved Intervention Order . police arranged for the other to be printed and delivered to them. At about 1140 hrs on the same day the Intervention Order was served on SINGH. Service details added and whereabout flag cleared. Enquiries made at the victim’s address however unable to gain access to unit and victim not answering her mobile in order to provide her with an update.” [21]
[21] Ibid, RTB6, p 88.
“Seen and agree. The deft disputes and has done so from the outset. He denies assaulting the victim in any way. The victim has submitted a PD207b – she doesn’t want to give evidence and could utilise provisions of S21EA if required. She has been referred to DV counselling. There is no other evidence capable of implicating the deft or refuting the version that he has provided. There is no likelihood of success.”[22]
[22] Ibid, RTB6, p 91.
In evidence, the Applicant conceded that he had pulled Ms Kaur’s hair and thrown her phone. He did not recall hurting her finger. Ms Kaur did not recall the hair pulling or the phone incident, but she did remember her finger being hurt. I am reasonably satisfied that the notes taken by police at the time accurately record Ms Kaur’s complaints and the events of that day. These are in my view, likely to be accurate.
On 30 January 2020, The Applicant was served with an Interim Intervention Order by SA Police (SAPOL).[23] Police records state:
[23] Ibid, RTB6, p 72.
“Investigator action
Previous OEL added in regards to nil physical acts of abuse in regards to the children there is nil need for an addendum statement. Prosecutor advising that this will most likely result in the removal of the children from the IO. Corroborating officer H to advise victim of this. Task complete.
Investigator action
Record of interview with accused was conducted at 3.07am 30/01/2020, recorded on video/audio , later booked into PPMS 20/A16037. This has been identified as not included in Facts of Charge which has not been locked and is unable to be edited.
Additionally, the children were placed on the PIIO at request by approving Inspector Y despite no actions of abuse against the children. The children were present to the abuse and Police had concerns that the suspect is a flight risk and would potentially take the children interstate or overseas given his current Visa status, causing further abuse to the mother and children.
……
1030 hrs Thursday 01/1/20
Phone contact with victim
Victim is reliant upon the accused for her residency in Australia. She has 2 children aged 4 months and 2 years of age.
Her rental is costing her $310 per week and she has been borrowing money to pay the rent. She has a sister and brother who live in SYDNEY and her father is going to come to Australia to live in the coming months.
She has completed an Aged Care course and is going to do placement to hopefully be able to get some employment. She has a friend who she hopes can take of the children whilst she is working, at least 1 or 2 days a week.
States her husband has racked up debts of $20,000 due to his drug dependence.
Victim does not believe she can get any financial assistance as she does not have permanent residence.Advised victim of counselling options. advised too made contact with Migrant Women’s Support Services to arrange counselling and perhaps financial payment to help her through.
Victim has been provided with a copy of the PIIO served on her husband and aware there is an order for him to vacate.
Accused in Police Custody and going to Court today for a bail application.
Victim will either be advised by CJS, the investigator or contact CFIS for an update on Court outcome.
Victim contact complete.”[24]
[24] Ibid, RTB6, pp 98, 106-107.
On 8 March 2020, it seems that there was another incident and police made an application to vary the Intervention Order.[25]
[25] Exhibit 6, RTB6, p 65.
On 21 April 2020, The Applicant entered a plea of guilty to a charge of “possess controlled drug (not cannabis)” The charge was dismissed without penalty.[26]
[26] Exhibit 3, G19, Attachment N2, p 116 and Exhibit 6, RTB6, p 72.
On 24 April 2020 an Intervention Order was served on the Applicant.[27] A SAPOL Intervention Report notation of that date states:
[27] Exhibit 6, RTB6, p 72.
“On the 24th April 2020, an intervention order was served on Mandeep SINGH, the accused, for the protection of Manpreet.
***VICTIM VERSION***
The victim in this matter is the protected person, .
There have been further offences since the order has been in place.
The victim has provided a statement outlining the further offending.
The victim is in fear that the accused will harm her again. As a result, and on these grounds, the victim requests that the intervention order be varied with the following conditions added, as she now fears for her safety.The defendant must not:
2. Follow or keep the protected person(s) under surveillance including tracking by GPS or otherwise.
3. Approach within 100 metres of the protected person(s) unless permitted by other conditions of this order.
5. Enter or remain within 100 metres of any boundary of where the protected person(s) is stays, resides or is works.
6. Damage or interfere with the premises where the protected person(s) is stays, resides or is works.”[28][28] Ibid, RTB6, p 66.
38.A SAPOL Detailed Occurrence Report in respect of the same incident states:
“Re DDN issued on 30/01/20. The attached notification refers to your defendant who has failed to either attend, or complete their drug diversion process. As a result you are now required as per General Orders to complete a CSR for CJS re the alleged offences. Ensure there is sufficient admissible evidence eg copy of non-compliance certificate, Trunarc results, photo of seized equipment. For audit purposes, if a Street Check add an Occurrence and CSR and if an Occurrence add only a CSR to the Shield task and relevant references onto PPMS. A copy of the paperwork concerning the diversion is attached to this Occurrence.”[29]
[29] Ibid, RTB6, p 94.
On 9 July 2020, SAPOL records state:
“ stopped SINGH, MANDEEP and escorted him to the rear of the store to speak about the items stolen, SINGH was compliant. SINGH was identified by photographic SA D/L photographed the drivers licence and supplied it to police, photo uploaded to OCC for ID purposes.
…….
At 1630hrs suspect SINGH was stopped by RP who is LPO at the store after concealing deodorant and leather gloves in his pockets, and leaving the store without making payment. Callcentre advised RP extensive delay for patrols attendance. RP obtained SINGH's personal details and he left the store. Items totalled $28.35. All were returned in saleable condition.
At about 1800hrs police PRIOR/BAKER attended FOODLAND SEFTON PARK. Statement obtained from RP. CCTV unavailable to collect at the time. Details left with RP to advise when CCTV ready for collection.”[30]
[30] Ibid, RTB6, pp 120-121.
On 19 October 2020, SAPOL records state:
“RP states at around 1730hrs on the 19/10/20 he lost his pants and wallet when leaving work. The items had fallen from his gym bag. After checking with his bank today he has found that his Commonwealth and two ING bank cards had been used not long after 1730hrs and multiple locations including convenience stores, Adult
shops and service stations. A bank statement has been sent to SCAC. There is no CCTV from the University however there may be CCTV at some of the stores the cards were used. RP's pants were also stolen.
“Call centre advised the victim/reporting person that the matter will be filed pending any further information re witnesses or CCTV coming to hand.”……
19 Oct 2020
1753HRSOTR MAWSON LAKES $62.85 Cigarettes 19 Oct 2020
1805HRS
OTR PARAFIELD GARDENS $34.50 Cigarettes 19 Oct 2020
1913HRS
FOODLAND MAWSON LAKES $60.50 Cigarettes 19 Oct 2020
1930HRS
FOODLAND PARAFIELD GARDENS $61.50 Cigarettes 19 Oct 2020
2030HRS
OTR MAWSON LAKES $66.35 Cigarettes 19 Oct 2020
2100HRS
BP MAWSON LAKES $98.68 Cigarettes 19 Oct 2020
1915HRS
FOODLAND MAWSON LAKES $99.45 Cigarettes 19 Oct 2020
2100HRS
Beavers Adult Shop PARAFIELD GARDENS $39.00 Could not recall what he bought but did by something from there 19 Oct 2020
1800HRS
Welcome Indian Grocer PARAFIELD GARDENS $35.00 Could not recall what he bought but did by something from there ”[31]
[31] Ibid, RTB6, pp 122-123.
On 24 December 2020, SAPOL records state:
“At about 11.05 pm on Wednesday 24th December 2020 Victim SINGH, MANDEEP states that he was having a verbal argument with his wife about family members who are currently staying with them so he has left their unit and gone out to sit in his vehicle to remove himself from the situation. Whilst in his vehicle his wife the suspect
has come outside and asked him to open the door to the vehicle which he has refused. has then pulled the number plate covers off from the number plates and bent the number plates in half and pulled the mirror component off of the side mirror. Both parties stated that the car is owned and driven by both parties.
SINGH, MANDEEP states he and his wife have been having arguments due to the fact that her two brothers are living with them and not contributing to the house and bills which he states is putting a financial strain on them as he is also not currently working. SINGH, MANDEEP states they all gang up on him and say disrespectful
things about his family who are overseas.was spoken to separately who stated they were both in the unit together and she wanted to get a friends number from his phone but he did not allow her to. She stated they started arguing and SINGH left to go and sit in their vehicle in the units carpark. She has then followed him and he has locked himself in the car not opening the door to which she has started to damage the vehicle. She states she believes he did not want to give her his phone due to his ongoing drug use and he did not want her to see anything in his phone. She stated he is not currently working and uses his money to buy drugs and when he runs out asks anyone and everyone for more money. She is working full time to support their family and young children.
stated she was just frustrated hence damaging their vehicle.
Both parties stated they are wishing to end the relationship.”[32]
[32] Ibid, RTB6, p 144.
42.Similarly, further SAPOL records dated 24 December 2020 state:
“Supervisor review per Northern District Management directions:
Patrol originally attended and entered Occ as non-offence DA on the basis of joint ownership of vehicle. I have had an educational conversation with patrol and this has been changed to offence DA on basis that joint ownership of property does not exclude property damage, which female partner admitted to; and car is registered in RP/male's name only. Otherwise actions appropriate, argument and minor damage to car over ongoing family and trust issues. Positive action taken as parties given advice with neither wanting or expecting action re damage. Members aware of req to link BWV. DA perp/victim alerts and stats class all added appropriately.
Police attended and spoke with both parties. Sighted vehicle in carpark with minor damage. SINGH stated he was not going to stay at the unit tonight and was going to sleep in the car and will go to a friends house tomorrow. He was not wanting to stay at the address with his wife. SINGH still aware of current IO and advised he called Police as his wife would not leave her alone and he did not want to get in trouble. He stated he left the unit to remove himself from the situation as he did not wish to argue.
Both parties gave advice to separate for the night as they continued to argue in front of Police.”[33]
[33] Ibid, RTB6, pp 150-151.
On 8 January 2021 SAPOL records state:
“SINGH, MANDEEP attended EHPS at about 1000hrs 08/01/21 to report an unrelated matter. Due to whereabouts flag, ROI conducted at the station and recorded on [BWV].
SINGH made full admissions to all purchases, stating that most purchases were for cigarettes particularly at the OTR's. Could not elaborate on the specifics of the non cigarette purchases. SINGH acknowledged the CCTV image as himself and confirmed ownership of the [Vehicle: Sedan] 2013 HOLDEN CRUZE Red SA Reg [ ].SINGH stated that he had received 1-3 cards from a person he did not know who he had met on the street in, that he had met him before in the pokies at the Mawson Lakes hotel. Could not provide details or description. Stated he was given permission by this person to make purchases using the cards.
SINGH admitted to making all the below purchases (I did not query him about the highlighted purchase as the time frame did not appear to match).
19 Oct 2020 MAWSON LKS FOODLAND MAWSON LAKES $99.45 19:43:38
19 Oct 2020 OTR MAWSON LAKES 7712 MAWSON LAKES , 1019 $62.85
18:23:08
19 Oct 2020 BP MAWSON LKS 6744 MAWSON LAKES , 1019 $64.50 09:23:29
19 Oct 2020 BP MAWSON LKS 6744 MAWSON LAKES , 1019 $98.68 21:42:23
19 Oct 2020 BEAVERS ADULT SHOP PARAFIELD GA , 1019 $39.00 21:34:56
19 Oct 2020 OTR MAWSON LAKES 7712 MAWSON LAKES , 1019 $66.35
21:07:31
19 Oct 2020 OTR MAWSON LAKES 7712 MAWSON LAKES , 1019$8.95 21:06:42
19 Oct 2020 FOODLAND PARAFIELD PARAFIELD GA , 1019 ? $61.50 20:05:58
19 Oct 2020 MAWSON LKS FOODLAND MAWSON LAKES , 1019 $60.50
19:43:38
19 Oct 2020 OTR PARAFIELD GRDNS 9052 PARAFIELD GA , 1019 $34.50
18:37:01
19 Oct 2020 OTR MAWSON LAKES 7712 MAWSON LAKES , 1019 $62.85
18:23:08.”[34][34] Ibid, RTB6, pp 140-141.
In his evidence to the Tribunal, he admitted that he lied to the police about being given the credit cards. He said that he had found a wallet and decided to use the cards in it.
On 15 February 2021, the Applicant was involved in another incident of domestic violence against Ms Kaur and his brother-in-law. He conceded in evidence that this event happened. The police fact sheet states as follows:
“BRIEF OVERVIEW
Count 1 – Aggravated Assault
On Monday, 15th February 2021 in MAWSON LAKES, the accused Mandeep SINGH assaulted the victim by pushing her to her side causing her to fall into a door.It is further alleged the circumstances of aggravation are that the accused committed the offence knowing that the victim of the offence was his spouse.
Count 2 – Breach of Intervention
On Monday 15th February 2021 in MAWSON LAKES, the accused Mandeep SINGH failed to comply with a condition of an intervention order namely assaulting the protected personCount 3 – Basic Assault
On Monday, 15th February 2021 in MAWSON LAKES, the accused Mandeep SINGH assaulted the victim by grabbing his shirt and scratching his left arm.VICTIM 1
Victim 1 in this matter is .Victim 1 states she has been married to the accused for the last 12 years. She states they have two children together, (2) and (1). She states they have been residing in Australia for about 12 years. She states in December 2018 whilst living in Sydney the accused began abusing drugs. She states in June 2019 they moved to Adelaide so that she could study.
Victim 1 states that at some point in mid-February 2021 the accused moved out of their unit they were staying at in MAWSON LAKES. She states she ended their relationship with the accused due to him continually abusing drugs. She stated that the accused moved out of the unit and was sleeping rough in his car and with friends.
Victim 1 states at about 5.15pm on Monday 15th February 2021 she was with her two children, heading back to her home address in MAWSON LAKES. She states as she was walking towards her unit the accused walked up behind her. She states she told him that he was not allowed in the unit and told him to leave.
Victim 1 states the accused left shortly after this and walked towards the stairwell. She states she again walked towards her unit, where her brother victim 2 in this matter has opened up the door. She states as victim 2 opened up the door, the accused has come back from the stairwell and approached her. She states the accused pushed her with his hands to her upper body causing her to fall into the door which was partially open. She states she was holding their 1 yr old son at the time. She was not injured as a result of being pushed.
Victim 1 states the accused barged his way past her and into the unit. She states the accused assaulted victim 2. She states the accused walked through the living room and out onto a balcony. She states victim 2 locked the balcony door behind the accused, locking him outside.
Victim 1 states she remained at the address until police arrived.
Victim 1 states she did not receive any injuries as a result of this incident.
Victim 1 stated there is an intervention order in place between her and the accused. Condition 1 of the order states: the defendant will not assault, threaten, harass or intimidate the protected person.
Victim 1 is listed as a protected person on this order.
A formal statement has not yet been obtained from victim 1.
VICTIM 2
Victim 2 in this matter is .Victim 2 in this matter is the brother of victim 1 and the brother-in-law to the accused. He states at about 5.15pm on Monday 15th February 2021 he was at his sister’s unit at MAWSON LAKES when at about this time he heard screaming coming from the foyer just outside of the unit door.
Victim 2 states he heard victim 1 saying not to open the door. He states he and victim 1 have a system, whereby when victim 1 comes home she tells him if its safe to open the door when she returns home. He states when he heard the screaming he called police on 000.
Victim 2 states he was standing in the hallway near the front door when victim 1 told him to open the door. He states when he opened up the door he saw the accused push victim 1 hard into the door. He states he was trying to stop the accused from walking further into the house. He states the accused grabbed him by the shirt to get past him. He states whilst he was grabbing onto him the accused scratched his left arm.
Victim 2 states the accused managed to get past him and walk out onto the balcony. He states he locked the balcony door behind him and waited for police arrive.
Victim 2 was not injured as a result of this incident.
A formal statement has not yet been obtained from victim 2
WITNESS
The witness in this matter is .
The witness is a neighbour to victim 1 and is willing to provide a statement to police. A formal statement has not yet been obtained from the witness.
POLICE
On Monday 15th February 2021 police were conducting uniformed mobile patrol duties when at about 6.30pm they attended in relation to a domestic disturbance.Upon arrival police were met by the witness and victim 2 in the parking lot of the unit complex. Police were escorted up to the unit by the witness and victim 2. Upon entering victim 1’s unit, police located the accused outside on the balcony sitting down on the ground.
Police arrested the accused where he was searched and handcuffed before being placed in to the rear of a police caged vehicle. Police read the accused his arrest rights which were recorded on police body worn video. During a search of the accused, police located a packet of cigarettes which was removed from him. Police conveyed the accused to the Elizabeth Police Station cells.
Police obtained details of the incident from victim 1 and victim 2 which were recorded in police
notebooks.Upon arrival police conducted a search on the accused and on his belongings that he had in his possession at the time. Police conducted a search of the cigarette packet which was removed from the accused earlier. Police located 2 x plastic resealable bags containing a white crystalline substance. Police later conducted a preliminary analysis of this substance using a narcotics analyser (TruNarc). This analysis resulted in a positive reading to Methamphetamine. Police organized a drug diversion appointment for the accused to attend at a later date.
Police conducted a record of interview with the accused which was recorded on video camera. During the interview police re-read the accused his arrest rights on video camera. Police conducted a search on police systems which showed there was an intervention order between victim 1 and the accused. Condition 1 of the order states: the defendant will not assault, threaten, harass or intimidate the protected person. Victim 1 is listed as a protected person on this order. This order was confirmed on Tuesday 21st April 2020.
The accused was charged where he was refused release on police bail. Police confirmed the accused’s identification via existing photographs on police systems, namely SHIELD.
Interactions with the accused were captured on police body worn video.
ACCUSED
The accused in this matter is Mandeep SINGH, date of birth 15th May 1986.The accused stated that victim 1 had earlier thrown some of his clothes of the balcony. He stated that he wanted to go to the unit to collect the rest of his clothes and property. He states he attended the unit however victim 2 would not let him in.
The accused stated he then attempted to sneak into the unit past his wife as she entered. He
stated he snuck in behind her, however he did not assault her. He stated that when he went inside victim 2 attacked him and punched him to the face. The accused stated that he does not want to fight in front of the kids. He stated he managed to get past victim 2, went out to the balcony where he was locked out.The accused stated he used drugs to relieve stress, however he does not use drugs in front of his children or at the unit.”[35]
[35] Exhibit 3, G5, Attachment B, pp 31-34.
The Applicant gives a somewhat different account, which places blame on his wife and her relatives. He did accept that he was out of control because of his drug use. This is set out in a mitigation plea prepared by the Applicant’s lawyers on 22 March 2021 in the following terms:
“……
·The relationship between our client and the complainant turned sour when her parents arrived from India in 2018. Their (especially the complainant's mother's) interference lead to numerous arguments and disagreements between them.
·The complainant's eldest brother was living with them in Sydney and he moved with them to Adelaide. He was staying rent free and did not contribute to the outgoings despite our client's request. His requests in this regard led to further issues between him and the complainant.
·The complainant was in the habit of stepping on our client's deceased father's photograph during arguments and would speak ill of him. ln Sikh culture such behaviour is considered extremely insulting.
·Our client's brother and sister-in-law who live in the UK sent several toys to them when their son was born but the complainant and her mother threw the toys in the bin.
·Against our client's wishes, when they moved to Adelaide the complainant's youngest brother and girlfriend also moved into the home with their dog making the home even more crowded. They would not clean up after their dog and often the complainant's and our client's children would pick up the dog poo with their hands.
·When arguments use to occur, our client would leave the home to avoid further confrontation. There were times when the complainant did not allow him back into the home meaning there were numerous occasions when he had to sleep rough.
·We have forwarded to the prosecution a short video that our client took of the complainant damaging his car while he was seated in the car.
The behaviour described above sets out exactly how our client was treated by the complainant and her family. The complete disregard that was shown to him resulted in him feeling alone and depressed. Not having any support, it was in these circumstances that he became homeless, ended up mixing with undesirable company and turned to illicit drugs.
The events that resulted in the assault charges emanated from our client attempting to access his home to collect his clothing and belongings after the complainant had thrown some of his clothes out of his home. Both the complainant and her brother refused to allow our client into his home resulting in the altercation that took place.
Insofar as the breach of bail charge is concerned our client instructs that he had attended at the laundromat close to his home. The complainant saw him in the vicinity and called the police and he was arrested shortly thereafter. He instructs that when he was arrested his clothes were left at the laundromat. Irrespective of this he accepts that he ought not to have attended the area.
We note there was no injury caused to either the complainant or her brother. He regrets matters and wishes that he had dealt with the treatment that was being dished out to him by the complainant and her family in a better way. Unfortunately not having any other support here in Adelaide he was left to his own devices ended up sleeping rough and mixing with undesirable company.
……”[36]
[36] Ibid, G20, Attachment N4, pp 124-128.
The Applicant has attempted to place the blame for his behaviour on the stress caused by his wife’s family, leading to drug use. I do not accept this. His drug use significantly pre-dated this episode. Indeed, the overwhelming inference on the evidence is that the Applicant’s drug use has been directly responsible for his matrimonial difficulties and his offending, not the reverse. His attempt to shift blame is concerning.
The Applicant again moved out of his home at this time. The children and Ms Kaur again remained there. He did not see them again until 21 June 2021, when the intervention order was amended to permit his return.[37]
[37] Exhibit 4, [9] and Exhibit 3, G19, Attachment N2, p 121.
A detailed Occurrence Report dated 15 February 2021 states:
“For the past 2 days SINGH, MANDEEP has been told he is not welcome at the home address of , denied by his partner due to his abuse
and drug addiction.
Living at the address is their children, and Manpreet's brother stated she is afraid of Mandeep, and has an arrangement with where he will only allow her entry when she knocks and says it is her.
At about 1715hrs 15/02/2021 has had a chance encounter with Mandeep at the local shops, and Mandeep has requested if he could go home to retrieve some clothes however has refused. has then attended the Unit however has refused him entry. When Mandeep was leaving he has seen returning home and has then hidden in the stair well, and as soon as has opened the door for he has attempted to force his way inside.
A witness, has watched the argument through her peep hole, and states she saw Mandeep pick up and then walk away, only to return and throw him towards and then assault her by punching her to the face. This was not mentioned by either victims.
states that after a short argument with and a short scuffle Mandeep has pushed her while she was hold and barged inside (nil SCT, the lease is in Mandeep's name). While inside and Mandeep and have continued to argue, and when Mandeep went to retrieve some items from the balcony has locked the door behind him, in fear of what Mandeep would do if he came back inside, trapping him on the balcony.”[38]
[38] Exhibit 6, filed 13 September 2022, RTB6, p 152.
“DV RISK SCORE REVIEW– 37
WHAT ACTION HAS BEEN TAKEN BY INITIAL PATROL –
Patrols attended and arrested suspect for 2 x assault and 2 x breach of bail.
INTERVENTION ORDER
Basic IO in place
FIREARMS
Nil
WELFARE BARRING ORDER
N/A
VICTIM OUTCOME –
Called the victim at 2000hrs. She stated that she is feeling safe after the incident last night with the suspect. She is aware of the bail conditions to not contact and the basic IO in place. Victim stated that she would like the IO to be raised to a full order.
Suspect is next in court on 7/4/21. Enquiries being made with prosecution in regard to raising the intervention order.
SSR completed to flag victim’s home address.
Victim will phone Police if she needs any assistance. ND CFIS phone number provided. Victim stated that she does not require any assistance from external agencies at this stage.”[39]
49.A SAPOL Detailed Occurrence Report dated 15 February 2021 states:
“Witness spoken to at the scene, stated she was happy to provide a statement
Victims and spoken to, brief account of incident obtained – nil victim statements obtained due to lack of patrols available to attend and priority given to arresting suspect and removing him from the scene
SINGH, MANDEEP
suspect was located locked out on the balcony – arrestedsmall amount of white crystalline substance found on suspect, seized and drug diverted.”[40][39] Ibid, RTB6, p 162.
[40] Ibid, RTB6, p 175.
On 16 February 2021, SAPOL records state:
“Attended and spoke with the witness. Statements obtained from both.
While at the address police observed SINGH, MANDEEP vehicle, SA reg inside the vehicle police observed the bail paperwork, and detainee property receipt from SINGHS detention on 15/02/2021.
Current bail conditions for SINGH are to not be within 100m of where . Appears Mandeep has returned to his vehicle, parked within the unit complex carpark.
Appears SINGH, MANDEEP has returned to the vehicle once bailed, breaching his bail conditions.”[41]
[41] Ibid, RTB6, p 171.
On 7 March 2021, SAPOL records state that the following bail conditions were set that day:
“BAIL GRANTED (660515801) - Amount $500.00
1. I will not leave the State for any reason without lawful permission under the Bail Act, 1985.
2. I will forfeit to the Crown the sum of $500.00 if I fail to comply with a term or condition of this Bail Agreement.
3. I will reside at .
4. I will not possess a firearm, ammunition or any part of a firearm.
5. I will submit to tests (including testing without notice) for gunshot residue AS DIRECTED.
6. I will not approach or communicate, either directly or indirectly, with . Contact is only permitted at a court or tribunal hearing where we are parties to the proceedings.
7. I will not approach or communicate, either directly or indirectly, with . Contact is only permitted at a court or tribunal hearing where we are parties to the proceedings.
8. I shall not enter or remain within 100 metres of the boundary of any premises where may be residing or is present.
BAIL CLASSIFICATION - Reside At
BAIL CLASSIFICATION - Not to Attend At
BAIL CLASSIFICATION - Not to Contact/Associate/Communicate
Bail Value : $ 500.00I have updated SINGH's address to show him now residing at PARALOWIE as per his bail conditions.”[42]
[42] Ibid, RTB6, p 173.
On 8 March 2021, SAPOL record state:
“ND CFIS GREGSON 72773:
Contacted the victim and confirmed that she still wishes to increase the IO conditions. The victim still wishes to have contact with the suspect but does not wish to have him within 100m of her or her home address.
The victim stated that the suspect has been arrested today. Checks show that the suspect was arrested this morning for breach of bail for being within 100m of the victim's home address.
IO variation file completed and uploaded. File in prosecution's basket.”[43]
“At about 08.20am Police on UMP tasked to re suspect male
approaching people asking for drugs. Search of area located male matching desc, SINGH, MANDEEP. Located male matching description walking along MAWSON LAKES.Stopped and searched SINGH and located an ice pipe on him.
PIMS/SHIELD checks revealed SINGH on bail not to be within 100m of his ex-partners address.
[43] Ibid, RTB6, p 170.
At the time of Police locating him he was approx 30m away from the boundary of that address.
SINGH was arrested and conveyed to cells.
Not eligible for diversion, also charged with possession of equipment.”[44]
[44] Ibid, RTB6, p 176.
On 24 March 2021, the Applicant entered a plea of guilty to the charges of “fail to comply with bail agreement/possess equipment to use with controlled drug (not cannabis)”. A 6-month good behaviour bond was imposed.[45] He also entered a plea of guilty to the charge of “Agg-commit assault-against own child/spouse-no weapon”. He was placed on an 18-month good behaviour bond.[46] On the same day, he consented to an intervention order for the protection of Ms Kaur.[47]
[45] Exhibit 3, G19, Attachment N2, p 114.
[46] Ibid, G19, Attachment N2, pp 111-112.
[47] Ibid, G19, Attachment N2, p 120.
Also in March of 2021, the Applicant met a fellow Sikh, Mr Harpreet Singh Lehar. He arranged help for the Applicant from members of Adelaide’s Sikh community. He has kept in touch with him.[48] His evidence to the Tribunal was that he was not fully aware of the Applicant’s offending or his drug use. The Applicant claims that, as a result of community support, he ceased using drugs and returned to work as a truck-driver at this time.[49]
[48] Ibid, G21, Attachment N5, pp 130-131.
[49] Exhibit 4, [8]-[9].
On 19 April 2021, the Applicant entered a plea of guilty to a charge of “dishonestly take property without consent”. A 12-month good behaviour bond was imposed.[50]
[50] Exhibit 3, G19, Attachment N2, p 117.
On 3 June 2021, the Applicant entered an early plea of guilty to a charge of “possess controlled drug (not cannabis)”. He was fined $100 plus costs and the VOC levy.[51]
[51] Ibid, G19, Attachment N2, p 115.
On 21 June of 2021, the terms of the Intervention Order were amended so as to enable him to return to live with his wife and children.[52]
[52] Exhibit 4, [9] and Exhibit 3, G19, Attachment N2, p 121.
On 7 September 2021, the Intervention Order was revoked on Ms Kaur’s application.[53]
[53] Exhibit 3, G19, Attachment N2, p 122.
On 6 October 2021, the Applicant’s WA-010 Bridging Visa was cancelled under s 116 of the Act due to his criminal convictions.[54]
[54] Ibid, G14, Attachment K, p 74 and G16, Attachment M, p 89.
On 3 November 2021, the Applicant was taken into immigration detention.[55] On the same day, he also made an application for a Bridging Visa.[56] It is this application that has ultimately given rise to the matter currently before the Tribunal. In this application he states:
“I'm currently in detention centre my whole family got devastated with the news as I came for appointment and so sudden they sent me that I can't go out my kids still waiting at home thought I have gone out to buy chips for them. My wife's job commitment whole roster she have to drop shifts because I was looking after kids and she was working. The offences was under the influence of drug. I'm the new person . My whole life will be disturbed and I will loose my kids and wife. I really request you to grant me Bridging E visa so I can reunited with family. I'm also going for tribunal as well to make my good image and to fix the things I have done. My family is happy to deposit any custody amount if immigration wants. Please really do if you can I want to go home.”[57]
[55] Ibid, G14, Attachment K, pp 65 and 73.
[56] Ibid, G14, Attachment K, pp 65-72.
[57] Ibid, G14, Attachment K, p 69.
On 5 November 2021…a letter from the SA Department of Corrections states:
“……
In relation to rehabilitation/intervention, from a review of all case note records since the commencement of this order it can be confirmed that Mr Singh has not yet engaged in any criminogenic program or counselling. He has been directed to engage in substance abuse counselling and domestic violence counselling through a service called Life Without Barriers, however on the last occasion that he attended supervision (27/10/2021) he advised that he had still not made contact with this service to arrange counselling. This is despite having been directed to make contact, and being provided with the contact details on multiple occasions since the commencement of his order in March 2021. Mr Singh has undergone assessment for suitability for the Department Domestic and Family Violence Intervention Program, however was determined to be unsuitable due to language barriers.”[58]
[58] Ibid, G25, Attachment P, p 139.
On 8 November 2021, a delegate refused to grant a Bridging Visa on the basis that the Applicant did not meet mandatory criteria because he would not abide by the conditions that attach to the Bridging Visa, in particular the requirement not to engage in criminal conduct.[59]
[59] Ibid, G14, Attachment K, pp 73-77.
On 16 November 2021, the Tribunal remitted the Bridging Visa application back to the Department with a direction that:
“The Tribunal remits the matter for reconsideration with the direction that the applicant meets the following criteria for a Subclass 050 (Bridging (General)) visa:
·cl 050.211 of Schedule 2 to the Regulations; and
·cl 050.212 of Schedule 2 to the Regulations; and
·cl 050.221 of Schedule 2 to the Regulations; and
·cl 050.223 of Schedule 2 to the Regulations.
The Tribunal also directs the primary decision maker
·to indicate to the applicant that conditions 8401(Report), 8506(Advise of change of address within 2 days) and 8564 (Must not engage in criminal activity) will be imposed on the visa.”[60]
[60] Ibid, G16, Attachment M, p 93.
On 23 December 2021, Ms Kaur applied for a Skilled Work Regional (provisional) (Subclass 491) visa, (Subclass 491 visa).[61] She included her children in the application; however, the Applicant was referred to as a “non-migrating family member”.[62] The Applicant says that he was omitted on the advice of Ms Kaur’s lawyer.
[61] Exhibit 6, RTB1, pp 1-33, RTB2, p 34 and RTB3, p 35.
[62] Ibid, RTB1, p 12.
On 19 January 2022, Ms Kaur sent an email to Home Affairs in which she stated:
“……
My husband Mandeep Singh is currently detained in Adelaide detention centre our last hearing was in AAT in16-11-21. I'm really concerning about my both kids and myself as it's getting harder and harder I have been working on nights so every time I have to request someone to stay with kids at night so I can continue works. it would be so easy if Mandeep will be with us so we can share our duties at this stage I'm the only one suffering more than Mandeep I guess. And my daughter's school will start within 3 weeks and I have to take more responsibility. I would really appreciate if you made a decision at your convenient.”[63]
[63] Exhibit 3, G30, Attachment T2, p 147.
On 31 January 2022, the Applicant was notified of the Respondent’s intention to consider refusing to grant a bridging Visa, on the basis that he did not pass the character tests in s 501(6) (d) (i) and (ii).[64]
[64] Ibid, G10, Attachment G, pp 44-48.
On 1 February 2022, Ms Kaur wrote to the Respondent in the following terms:
“To Department of Immigration
Thanks for reconsidering my Husband’s visa refusal application and giving us chance to comment.
Me and Mandeep have nearly 14 years of relationship and we both migrated to Australia since 2008.
We both have two children 1 is age nearly 4 and the second is 2 and half. At this stage its really getting hard day by day for me to fulfilling a parental role, I usually work at night and nobody at my side to help me, everytime I have to request someone to stay overnight with kids so I can continuing work if my husband is with us it would be really great help so we both can share our duties and responsibilities. I’m also concerning my kids wellbeing and myself too as they both really attached with this their dad I also cant see them suffering emotionally.
I really requested to immigration to grant him visa so he can come home to live with us and we will have continuing living normal life. I do understand the offences done by Mandeep and I can witnessed that how much he is regretting everyday due to some domestic circumstance, involvement to our families I couldn’t help him. Before he was detained there was no issues between us and he was doing all his parental duties and living in his good spirits. His deportation will be really affected to my children and my long term relationship. I’m also aware that if he is doing any other criminal activities our current, pending and future application will be affected. Thanks for your time. He really deserve a one chance. Looking forward to hear from you soon.”[65]
[65] Ibid, G22, Attachment N6, p 132.
On 24 February 2022, Ms Kaur says that their marriage came to an end.[66] This is supported by a statutory declaration she made on 25 February 2022 which relevantly states, “our relationship was ended on 24 February 2022 and I am no longer in a spousal relationship with (the Applicant).”[67]
[66] Ibid, G42, Attachment Z, p 170.
[67] Exhibit 6, RTB3, p 35.
On 1 March 2022, Ms Kaur and the children were granted a Subclass 491 visa until 1 March 2027.[68]
[68] Ibid, RTB4, pp 36-50.
On 18 March 2022, this Tribunal affirmed the delegate’s decision of 18 May 2019, to refuse the RSMS visa.[69] There is no application for judicial review of this decision. He has not applied for any other substantive visa.
[69] Ibid, RTB5, pp 54-59.
On 13 April 2022, the Department wrote to the Applicant’s lawyers requesting further information about the breakdown of his relationship with Ms Kaur.[70]
[70] Exhibit 3, G39, Attachment W, p 164.
On 16 May 2022, the Applicant’s lawyers responded stating that he was taken “completely unaware” by Ms Kaur’s suggestion that their relationship was over. It emerged in evidence that he was in fact well aware of the situation at this time.[71]
[71] Ibid, G40, Attachment X, p 166.
On 16 June 2022, the Department requested the Applicant’s lawyers to obtain a Statutory Declaration from Ms Kaur.[72]
[72] Ibid, G41, Attachment Y, p 167.
In a Statutory Declaration made on 5 July 2022, Ms Kaur made the following statement:
“I Manpreet Kaur, declare that I and Mandeep SINGH is in broken relationship. I’m not thinking about divorce yet. We parted one way on 24-02-22 and decided to move on. The relationship is nearly 14 years. The only issues between was his drugs, as he is living nearly 8 months now in detention centre and feel guilty for everything and clean now. He wanted to stay with kids. They visit regularly to him in detention centre. If he got approval from immigration he can stay with us. If everything seems well we will continue in relationship.”[73]
[73] Ibid, G42, Attachment Z, p 170.
On 18 July 2022, a delegate of the Respondent decided to exercise her discretion under s 501(1) of the Act to refuse to grant the Applicant a Bridging Visa. The Applicant’s agent was advised of this decision by letter dated 21July 2022.[74]
[74] Ibid, G3, pp 6-28.
On 24 July 2022, the Applicant applied to this Tribunal for review of the delegate’s decision of 18 July 2022.
The Applicant was generally employed as a truck driver between 2014 and 2021. If he were to be granted a Bridging Visa, he would return to this work.[75]
[75] Exhibit 5.
If the Applicant were to be granted a visa, he intends to live with his wife and children. Ms Kaur indicated in her Statutory Declaration of 5 July 2022 that she may consider a reconciliation.[76] In her evidence before the Tribunal, she said that he could return to live with her and that their relationship is now restored. Both she and the Applicant said that they now speak by phone daily.
[76] Exhibit 3, G42, Attachment Z, p 170.
The Applicant has family in India. If he were to return to India, he could live with his mother. He expressed some concerns about obtaining employment there. He wants to remain permanently in Australia.
LEGISLATIVE FRAMEWORK
Does the Applicant Pass the Character Test?
The Applicant’s criminal history is set out above. An Australian Criminal Intelligence Commission report dated 25 August 2021 is annexed hereto as Annexure B.[77]
[77] Ibid, G4, Attachment A, pp 20-30.
Section 501(6) (d) (i) and (ii) of the Act relevantly provide that a person does not pass the character test if:
“in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(iii) Engage in criminal conduct in Australia; or
(iv)Harass, molest, intimidate or stalk another person in Australia. ”
Direction 90, under s 499 of the Act has application to a visa refusal, or cancellation under s 501 of the Act.
Direction 90 para 5.1(2) provides that “a citizen may be refused a visa if they do not satisfy the decision-maker that they pass the character test”.:
Direction 90 para 5.1(4) provides that “the purpose of this Direction is to guide decision-makers in performing functions or exercising powers under s 501…of the Act”:
Direction 90 paras 5.2, 8 and 9 provide that the same primary and other considerations apply when making a decision under s 501(1), s 501(2) s 501CA (4).
Annex A to Direction 90 deals with the application of the character test. Section 1, “Overview of the character test” provides:
(1)Under section 501 of the Act, a person may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A person may have their visa cancelled if the decision maker reasonably suspects that the person does not pass the character test, and the person does not satisfy the decision-maker that they pass the character test.
(2)Persons who are being considered under section 501 of the Act must satisfy the decision-maker that they pass the character test set out in section 501(6) of the Act. In practice, this requires the decision-maker to determine, on the basis of all relevant information including information provided by the person, that the person does not pass the character test by reference to section 501(6) of the Act.
(3)Section 501(6) of the Act prescribes the circumstances in which a person does not pass the character test. A person need only be found to not pass one ground, in order to not pass the character test.
(4)In considering a person with unresolved criminal matters, decision-makers should note:
(a)where a person already fails the character test, any other outstanding criminal matters would not generally prevent consideration of their case under section 501;
(b)a person who does not already fail the character test, and is the subject of criminal charges in Australia, which have not yet been finalised before the relevant court, would not generally be considered under section 501 until the charges have been finally determined;
(c)where a person is in Australia, and they are facing charges in another country, and the charges will not be resolved in absentia, the conduct that is the subject of those charges may be considered in the context of section 501(6)(c)(i) and/or (ii).
(5)If the person does not pass the character test, section 501(1) of the Act enables a visa to be refused and section 50 I(2) of the Act enables a visa to be cancelled.
Section 2 of Annex A deals with the application of the character test. This relevantly provides:
“……
6 Risk in regards to future conduct (section 501(6)(d))
(1)A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person would engage in any of the conduct specified in section 501(6)(d) of the Act. The types of conduct specified are discussed below.
(2)The grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or to remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act.
It is not sufficient to find that the person has engaged in conduct specified in paragraph 501(6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act.
6.1 Risk of engaging in criminal conduct in Australia (section 501(6)(d)(i))
(1)A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person will engage in criminal conduct in Australia.
(2)The reference to criminal conduct must be read as requiring that there is a risk of the person engaging in conduct for which a criminal conviction could be recorded.
6.2Risk of harassing, molesting, intimidating or stalking another person in Australia (section 501(6)(d)(ii))
(1)A person will not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person will harass, molest, intimidate or stalk another person in Australia.
(2)'Harassment', 'molestation' 'intimidation' and 'stalking' are to be given their ordinary meaning. Section 501(11) of the Act clarifies the scope of conduct amounting to harassment or molestation. Conduct and behaviours that may fall under this category include, but are not limited to, the following:
a)conduct that could be construed as harassment or intimidation (whether or not it breaches the terms of an Apprehended or Domestic Violence (or similar) Order);
b)conduct that potentially places children in danger, such as unwelcome and/or inappropriate approaches, including, but not limited to, approaches made through electronic media; or
c)conduct that would reasonably cause an individual to be severely apprehensive, fearful, alarmed or distressed regarding the person's behaviour or alleged behaviour towards the individual, any other individual, or in relation to their property or that of any other individual.
The Tribunal is limited to an assessment of whether the Applicant passes the provision of the character test that was considered by the delegate, namely, s 501(6)(d)(i) and (ii) of the Act.[78]
[78] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033 at [68] per Rares J.
Section 501(11) provides that “for purposes of the character test, conduct may amount to harassment or molestation of a person even though it does not involve violence, or threatened violence, to the person” or “it consists only of damage, or threatened damage, to property belonging to, in the possession of, or used by, the person.”
Clause 6.2(2) in Section 2 of Annexure A of Direction 90 (see above) expands upon s 501(11).
The Tribunal must determine whether there is “a risk” that the Applicant would engage in the conduct referred to in s 501(6)(d)(i)-(ii) in the event he is permitted to remain in Australia.
Clause 6(2) of Annex A to Direction 90 states that the s 501(6)(d) will be enlivened if “there is more than a minimal or remote chance" of the conduct in question occurring. This is quite a low threshold.
The Tribunal has held in respect of s 501(6)(d) that “as long as the risk [that the person would engage in the relevant conduct is real and not fanciful or remote, then the subsection is engaged”.[79]
[79] KLLV and Minister for Immigration and Border Protection (Migration) [2016] AATA 896 at [51] per Fice SM.
In the present case, the Applicant has committed various acts of family violence as set out above. Not all of these have been the subject of charges. He has also committed crimes of dishonesty, drug offences, breached a bail condition and breached an intervention order. These, if repeated, would be relevant to the Tribunal’s application of s 500(6)(d)(i)-(ii).
The Tribunal is not limited to assessing the risk of the Applicant engaging in conduct during the currency of the visa. In fact, “[t]he context and purpose of the Act support a broader construction, that the risk being assessed is the risk of a person engaging in criminal conduct in Australia at any time”.[80]
[80] Anderson J in Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1046 at [43].
There is no expert evidence to support the Applicant’s assertion that he has seen the error of his ways and reformed. His drug issues in particular remain a concern.
The Applicant has not engaged in any formal rehabilitation for his illicit drug use or his family violence, even though such assistance was recommended to him by SA Corrections.[81]
[81] Exhibit 3, G25, Attachment P, p 139 and Exhibit 6, RTB6, p 94.
The Applicant has not acknowledged the full extent of his offending. For example, he claims that he did not hit his wife.[82] Her statement to police says otherwise.[83] The Applicant’s tendency to downplay the seriousness of his offending, is concerning. It suggests that he may present a risk of re-offending if he is released back into the community.
[82] Ibid, G14, Attachment K, p 70.
[83] Ibid, G5, Attachment B, p 31.
The Applicant says that his family violence offending was provoked by his in-laws living with him in a small house.[84] He says that as his wife’s family have returned to India, the stress is gone. As it turns out, this is not so. Some of them are here now. They help Ms. Kaur with her children. They will be here at least until the end of this year.
[84] Applicant’s Affidavit dated 30 August 2022 at [4]-[6].
The evidence suggests that the basis of his offending is related to his drug use. This pre-dated the friction with his wife’s family. He has not been involved in any formal rehabilitation programme, though he has been drug free for over a year.
Ms Kaur has had the intervention order revoked. There is now no order to protect her, and indeed she now says that she would resume co-habitation with the Applicant, if he were granted a visa.
The Applicant has had a little opportunity to test his capacity to avoid drugs in the community. He has been in detention since November of 2021.
The Applicant’s status as a temporary visa holder did not deter him from offending in the past.
The Tribunal that determined the review from the first refusal of the visa application, was satisfied that the Applicant would probably not commit any further criminal offences.[85] However, the Tribunal as presently constituted, is not bound by the Tribunal’s earlier findings. This Tribunal must make an assessment based on the evidence which is before it now.
[85] Exhibit 3, G16, Attachment M, pp 88-93.
Having regard to all of the above, I have come to the view that if the Applicant were to remain in Australia, “there is more than a minimal or remote chance" that he would “engage in criminal conduct”, or “harass, molest, intimidate or stalk another person”.
The Tribunal finds that the Applicant does not pass the character test.
The Tribunal must now consider whether to exercise its discretion to refuse to grant the visa.
Should the Tribunal refuse to grant a visa?
In considering whether to exercise this discretion, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.
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 in Part 2 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. However, Australia may 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.
(5)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 8.4(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.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. These considerations are:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community, including:
i)strength, nature and duration of ties to Australia; and
ii)impact on Australian business interests.
I note 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:[86]
“…Direction 65 [now Direction 90] 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.”[87]
[86] [2018] FCA 594.
[87] Ibid, [23].
offending HISTORY
The Applicant’s criminal record as produced by the Australian Criminal Intelligence Commission is outlined at Annexure B.
The Applicant’s offending and other relevant conduct is discussed in some detail above.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind 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 in the expectation that they 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.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
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. I will now turn to addressing these considerations.
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.
The Applicant has engaged in acts of family violence as defined, as set out above. His wife was a victim, as was his brother-in-law. His children were present. This is very serious.
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:
(v)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;
(vi)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;
(vii)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));
(viii)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.
The Applicant has breached an intervention order and failed to comply with a bail agreement. He has shown a disregard for judicial orders. He has committed drug related offences. He has committed dishonesty offences. The Tribunal has formed the view that he does not pass the character test.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) 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.
The Applicant has not been sentenced to a term of imprisonment. This is neutral.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
The Applicant’s offending began offending in December 2019. This corresponded with him having become addicted to methamphetamine. There was then a period of quite intensive offending as set out above.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.
The cumulative effect of the Applicants offending has had serious adverse impacts on his wife and children. His relationship with his wife has been on and off again at least since the birth of their son in September 2019. Ms Kaur most recently decided that their marriage ended on 24 February 2022. It seems that it may be primarily her need for practical support with her children, that is motivating her to consider having the Applicant around.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
There is no evidence of this.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about 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.
There is no evidence of this.
I do not consider factors (c), (f) and (g) of paragraph 8.1.1(1) of the Direction apply to the Applicant’s offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh against exercising my discretion to grant the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that in considering the need to protect Australian community (including individuals, groups or institutions) from harm, decision-makers 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 that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posted by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(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 their 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.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
If the Applicant were to reoffend, the consequences could be very serious. Family violence is not to be tolerated. He has previously ignored court orders and been involved in drug offences. The potential impact on his wife and young children is very serious.
Likelihood of engaging in further criminal or other serious conduct
The risk of the Applicant reoffending or engaging in other serious conduct is strongly connected with his risk of relapsing into drug use. If he does relapse, his history suggests that he is very likely to reoffend, probably against Ms Kaur. This might have very serious consequences for her and her children. He may also offend in other ways relating to the use and possession of drugs. If he manages to stay away from methamphetamine, his history suggests that the risk is low.
I am concerned that in this case the Applicant has not taken any meaningful steps to obtain appropriate professional support. His capacity to remain drug free in the community has not been seriously tested. There is no psychological evidence to assist in this evaluation. The Applicant has tried to get away from drug use in the past, even moving from Sydney to Adelaide to do so. This did not work. Aside from his period of abstinence, the majority of which time he has been in detention, there is little to give confidence that he can remain drug free. I do however, consider Ms Kaur’s evidence on this point to be highly relevant. She told the Tribunal that she believes that the Applicant can now be trusted not to resume drug taking. This is significant both because she knows him very well and because she is his most likely victim, if he were to reoffend. If her assessment of him is true, I accept that his risk of reoffending is low. Based on Ms Kaur’s evidence, I am prepared to give the Applicant the benefit of the doubt. This means that in my view he presents a slight to moderate risk of reoffending.
Conclusion: Primary Consideration 1
Primary consideration number one weighs moderately in favour of the Tribunal exercising its discretion to refuse to grant the Applicant a 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
d)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.
As has already been discussed, the Applicant has been involved in acts of family violence.
Conclusion: Primary Consideration 2
This consideration weighs in favour of the Tribunal exercising its discretion to refuse to grant the Applicant a visa.
Primary Consideration 3: The best interests of minor children in Australia
Paragraph 8.3(1) of the Direction compels 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 8.3(2) and 8.3(3) respectively contain further stipulations. 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. 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 relevant minor children in Australia are:
(a)Child A, a daughter aged 4 years.
(b)Child B, a son aged 3 years.
Both of the children are Indian citizens. They presently have no right to be and remain indefinitely in Australia. They live in Australia with Ms Kaur. She wants them to become permanent residents. The Applicant has expressed a strong wish to be an active, involved parent. Ms Kaur confirms that he is a good father. She is very keen to have his support in looking after the children. At present, given their ages, there is no evidence to suggest that their interests are materially different. They are presently in contact with the Applicant daily by phone or facetime.
These factors favour exercising the discretion to grant the Applicant a visa.
On the other hand, there are factors that may suggest otherwise.
The nature and extent of the parental role the Applicant might play in the children’s lives if he were to be released back into the Australian community is unclear.[88]
[88] Paragraph 8.3(4)(b) of Direction 90.
The Applicant and his wife initially separated in September 2019. They lived apart for several months. They then separated again in February 2021. They lived apart until September of 2021. They have been apart again since November 2021, when he was taken into Immigration Detention. Ms Kaur has been the children’s primary carer. The Applicant has been entirely absent from their lives for lengthy periods of time. The relationship between the Applicant and Ms Kaur has been volatile for most of the children’s lives.
The Applicant claims that he repaired their relationship in September 2021. He was placed in detention in November of 2021. He remains there.
On 25 February 2022, as noted above, Ms Kaur made a statutory declaration in which she said that her relationship with the Applicant had ended on 24 February 2022.
On 16 May 2022, the Applicant (through his lawyer) said he had “been taken completely unawares by this”.[89] This is not true. He conceded as much in cross-examination.
[89] Exhibit 3, G40, Attachment X, p 166.
Ms Kaur made a statutory declaration on 5 July 2022 in which she expressed a willingness to consider resuming the relationship.[90] She now says that she will have him back if he is released and that their relationship is restored. As previously observed, I think that this has more to do with her need for support in caring for the children and maintaining her current visa, than it may have to do with their relationship being repaired. The durability of their relationship is doubtful.
[90] Ibid, G42, Attachment Z, p 170.
Ms Kaur has only taken the children to visit the Applicant on 4 occasions since he entered immigration detention in November 2021 (noting that visits were not allowed between 30 December 2021 and 1 April 2022). This was explained to the Tribunal on the basis that she did not drive and it was difficult to get there by bus with small children.
There are not any Family Court orders in place governing the Applicant’s contact or communication with the children.
The children were present during the 15 February 2021 family violence against their mother (see discussion above). Child B was in Ms. Kaur’s arms when she was assaulted.
The Applicant can maintain electronic contact, as he now does, with his children if he is removed from Australia.
Ms Kaur has most recently performed the primary parental role alone since November 2021, (when the Applicant was taken into immigration detention). The evidence suggests that she has always performed that role. Given the age of the children, from their perspective, she has always been their primary care giver. There is no evidence to suggest that the children are not doing well.
On the evidence, there is a tension between Ms Kaur’s previously stated view that her marriage is over, and her wish to have ongoing support from the Applicant in rearing their children.
If the Applicant were to be released and to resume taking drugs, a prospect of which there is a credible risk, his presence may be highly traumatising and detrimental to the children.
If the Applicant is returned to India, his family will not voluntarily return there with him according to Ms Kaur.[91] Her current visa is for a 5 year period. This is a very significant factor. If the Applicant is not granted a visa, his children will effectively loose their father and all of the support that he might offer them. Ms. Kaur would be left as a single working parent, with two young children.
[91] Exhibit 2, p 20 [56]-[57].
Again, I regard Ms. Kaur’s evidence as crucial. On that basis, I am prepared to give the Applicant the benefit of the doubt and assume that he will not relapse into drug use. Despite my concerns about the durability of the Applicant’s relationship with Ms. Kaur, I am prepared to take at face value her assertion that their marriage is now repaired.
The Applicant’s wife and two children are in Australia. The relationship with his wife is such that he may have a close on-going relationship with her and his children, or he may not. To some degree, this is up to him and the choices he makes about drug use. Ms Kaur does support him remaining in Australia. He may assist in enabling her to work as a nurse.
Having regard to all of the above, and Assuming in the Applicant’s favour that he would not reoffend if released, this primary consideration weighs heavily in favour of the Tribunal not exercising its discretion to refuse to grant the Applicant a visa.
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.4(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 8.4(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 8.4(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”) which 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.[92]
[92] 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 8.4 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.
Analysis – Allocation of Weight to this Primary Consideration 4
Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:
(a)the Applicant’s criminal record as set out in Annexure B.
(b)The other matters set out above, in particular the Applicant’s history of family violence.
Conclusion: Primary Consideration 4
Primary consideration 4 weighs in favour of the Tribunal exercising its discretion to refuse to grant the Applicant a visa.
Other Considerations
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).
(a) International non-refoulement obligations
This consideration is neutral.
(b) Extent of Impediments if Removed
As a guide for exercising the discretion, 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.
There is no evidence relevant to this other consideration. The Applicant’s mother still lives in India and would support him if he were returned there. If he were returned to India, he would be in no worse position than any other citizen of that country.
This consideration is neutral.
(c) Impact on victims
This Other Consideration (c) requires that decision-makers must consider 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.
This case is unusual in that the Applicant’s prime victim has given evidence in support of him being granted a visa. She says that she has no fears for her welfare and that their marriage is restored. If he were to be granted a visa, she would want him to live with her. She expressed confidence that he has stopped taking drugs and that he will not reoffend.
Taking Ms. Kaur’s evidence at face value, this other consideration favours the exercise of the discretion to grant the Applicant a visa.
(d) Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
·the strength, nature, and duration of ties to Australia; and
·the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
The Tribunal must consider “any impact of the decision on the non-citizen’s immediate family members in Australia, where those people are Australian Citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely”.[93]
[93] Paragraph 9.4.1(1) of Direction 90,
The Applicant’s wife and children do not have a “right to remain in Australia indefinitely” as the visas they hold are temporary.
No other significant evidence of links to the Australian community was advanced.
Paragraph 9.4.1(2)(a) of Direction 90 does not apply, because this is a visa refusal case, not a visa cancellation or revocation case.
There is no evidence that a visa refusal decision would have any impact on Australia’s business interests.
This Other Consideration (d), paragraph 9.4.1 of the Direction, is neutral.
Impact on Australian business interests
There was no evidence on this other consideration, so it is neutral.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: neutral
(b)extent of impediments if removed: neutral
(c)impact on victims: favours the exercise of the discretion to grant the Applicant a visa.
(d)links to the Australian community including the strength, nature, and duration of ties to Australia: neutral.
(e)the impact on Australian business interests: neutral.
CONCLUSION
It is necessary to weigh up all of the primary and other considerations.
Primary consideration 1 weighs moderately in favour of the Tribunal exercising its discretion to refuse to grant the Applicant a visa.
Primary consideration 2 weighs in favour of the Tribunal exercising its discretion to refuse to grant the Applicant a visa.
Primary consideration 3 weighs heavily in favour of the Tribunal not exercising its discretion to refuse to grant the Applicant a visa.
Primary consideration 4 weighs in favour of the Tribunal exercising its discretion to refuse to grant the Applicant a visa.
Other considerations, (a), (b), (c) (d) and (e) are neutral.
In my view, the proper application of the Direction favours the Tribunal not exercising the discretion to refuse to grant the Applicant a visa. Ms Kaur’s evidence to the Tribunal was crucial in coming to this view.
I have decided not to exercise my discretion under s 501(1) to refuse to grant the Applicant a Bridging visa (Class WE).
Decision
The decision under review is set aside and remitted to the Department with a direction that the visa not be refused under s 501(1) of the Act.
I certify that the preceding two hundred and two (202) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Rau SC.
......................[sgnd]...............................
Legal Associate
Dated: 6 October 2022
Date of hearing: 20 & 21 September 2022 Advocate for the Applicant:
Mr Parambir Singh Sekhon
Sekhon LawyersAdvocate for the Respondent: Mr Samuel Cummings
Sparke Helmore LawyersAnnexure A – List of Exhibits
Exhibit no.
Lodged by
Document
1
Applicant
Statement of Facts, Issues and Contentions filed 30 August 2022
2
Respondent
Statement of Facts, Issues and Contentions, filed 13 September 2022
3
Respondent
G-Documents filed 3 August 2022
4
Applicant
Applicant’s Supporting Evidence filed 30 August 2022
5
Applicant
Statement from Michael Toole filed 13 September 2022
6
Respondent
Tender Bundle filed 13 September 2022
Annexure B – Applicant’s Offending History
Court
Court Date
Offence
Court Result
Elizabeth Magistrates Court
21/04/2020
Possess controlled drug (not cannabis)
Without conviction – Dismissed without penalty
Elizabeth Magistrates Court
24/03/2021
Basic – commit assault
Other than programs-contravene intervention order-physical violence
Agg-commit assault against own child/spouse-no weapon
Without conviction 18-month good behaviour bond ($1000)
Elizabeth Magistrates Court
24/03/2021
Possess equipment to use with controlled drug (not cannabis)
Fail to comply with bail agreement
Without conviction
6-month good behaviour bond ($200)
Elizabeth Magistrates Court
19/04/2021
Basic offence: dishonestly take property without consent (9)
Convicted
12 month good behaviour bond ($100)
Elizabeth Magistrates Court
03/06/2021
Possess controlled drug (not cannabis)
Without conviction
Fines $100
0
9
0