Singh and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] ARTA 41
•14 November 2024
Singh and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] ARTA 41 (14 November 2024)
Applicant/s: Paramveer Singh
Respondent: Minister for Immigration, Citizenship and Multicultural Affairs
Tribunal Number: 2024/6302
Tribunal:General Member A. Maryniak KC
Place:Melbourne
Date:14 November 2024
Decision:The Tribunal sets aside the decision under review and in substitution decides that the decision cancelling the Applicant’s visa is revoked.
..............................[SGD].......................................
General Member A. Maryniak KC
Catchwords
MIGRATION – cancellation of visa – failure to pass character test – whether discretion to revoke cancellation should be exercised – Direction 110 – primary considerations – protection of the Australian community from criminal or other serious conduct – strength, nature and duration of ties to Australia – expectations of the Australian community – other considerations – extent of impediments if removed – impact on Australian business interests – decision set aside and substituted.
Legislation
Migration Act 1958 (Cth)
Cases
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Secondary Materials
Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons
INTRODUCTION
The 36-year old Applicant, a citizen of India, seeks review of a decision made 7 August 2024, cancelling his visa under section 501(2) of the Migration Act 1958 (Cth) (the ‘Act’). The Applicant has been in immigration detention since 22 August 2024.
The Tribunal has considered the documentary material before it including the G Documents, being exhibit R1; documentary evidence tendered by the Applicant comprising exhibits A1 to A6; and the testimony of the Applicant, Dr Michelle Noon (Clinical Psychologist), Mr Jagmohit Singh, heavy vehicle operator/‘yardy’ and work colleague of the Applicant, Mr Harpreet Singh, a friend of the Applicant and Ms Dilpreet Kaur, the Applicant’s wife.
The Applicant relies upon a witness statement dated 7 October 2024 and a further witness statement dated 22 October 2024.[1] Whilst giving his testimony it was necessary for two corrections to be made to paragraph 5 of his further witness statement. Such corrections have not impacted upon the weight given by the Tribunal to his evidence, the Tribunal finding him to be a satisfactory witness.
[1] A1.
BACKGROUND
The Applicant is the youngest of 5 children and as a 20-year old, in January 2009, he arrived in Perth, Australia on a student visa. He obtained 3 tertiary qualifications in Melbourne up to June 2014. In January 2015 he moved back to Perth to become a restaurant manager and was granted a Regional Employer Nomination (subclass 187) visa on 25 May 2015. The restaurant subsequently shut down but when it re-opened under a new name he recommenced working there as a chef.
The Applicant married a fellow Indian citizen in November 2015 and was divorced in July 2019. On 31 October 2021 he married his current wife in India.
LEGISLATIVE FRAMEWORK
This Application is brought pursuant to section 500(1)(b) of the Act. The issue for determination arises from section 502(2) of the Act. The parties agree and the Tribunal finds that the Applicant does not pass the character test pursuant to section 501(6)(e) of the Act. The Tribunal is to determine whether the discretion under section 501(2) should be exercised to cancel the Applicant’s visa by applying Ministerial Direction no. 110 (the ‘Direction’), by reason of section 499 of the Act.
Paragraph 5.2 of the Direction relevantly provides the following framework principles:
(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)The safety of the Australian Community is the highest priority of the Australian Government.
(3)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.
(4)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 measureable risk of causing physical harm to the Australian community.
(5)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.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, 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.
(7)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.
(8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
The Tribunal, standing in the shoes of the original decision maker, informed by these principles, is then to take into account the primary and other considerations, with Primary Consideration 1 to be given greater weight, per paragraph 7(2) of the Direction, and the primary considerations to be given greater weight than the other considerations.
PRIMARY CONSIDERATIONS
Protection of the Australian Community
Paragraph 8.1(2) of Direction 110 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 non-citizen’s conduct to date
Dealing with Primary Consideration 1, the ‘protection of the Australian community from criminal or other serious conduct’, the Tribunal notes that the Applicant in October 2015, then 27-years old, committed an offence of a sexual nature against a minor (the ‘2015 offence’). The offending is ‘very serious’.[2] The Applicant pleaded guilty and was convicted for ‘Indecently Deals with a Child Over 13 Under 16’ and was sentenced to a conditional suspended imprisonment of 9 months, suspended to July 2016.[3] He remains on the Sex Offender Register until 2031.
[2] Paragraph 8.1.1(1)(a) of Direction 110.
[3] R1 33.
The 2015 offence involved the Applicant following a 14-year old work colleague victim into a cool room alone then grabbing her right breast over her clothing. Upon the victim stepping back and saying ‘don’t do that’, the Applicant immediately stopped and the victim walked out of the cool room. The Applicant’s employment was then terminated.
The transcript of the plea and sentencing in July 2016 provides additional detail to the offending.[4] During the lead up to it the Applicant had sent 55 messages to the victim on Facebook and the victim had sent 31 messages in return. The sentencing judge (the ‘SJ’) found that the Applicant had obtained the victim’s Facebook details some two days prior to the offending. The Applicant’s recollection of the time period over which the messaging was occurring was poor and without it he seemed to think that the messaging had occurred for a period up to a week prior to the offending. The Tribunal is of the view that the Applicant’s muddled evidence on this point was more the result of his general lack of experience in giving oral evidence rather than any attempt to provide incorrect information to the Tribunal. Overall, despite some difficulties with the task, the Tribunal is satisfied that the Applicant gave honest testimony.
[4] R1 35–58.
Despite the seriousness of the 2015 offence, the Tribunal notes mitigating factors mentioned by the SJ in suspending the Applicant’s prison sentence, the later fact being significant in itself and consistent with the following factors. The SJ found there was no demonstratable breach of trust associated with the offending and that it was not accompanied by physical coercion or threat. The SJ found that the Applicant pleaded guilty at the first reasonable opportunity and that during the offending the Applicant did not persist with any advances once the victim reacted. Importantly, and consistently with the Tribunal’s findings below, back in July 2016 the SJ was of the view that the risk of the Applicant reoffending was slight. Further, his culpability was at the lower end of the scale of seriousness for offences of this kind. The SJ also noted that the Applicant had no prior convictions and had a good work record since arriving in Australia in 2009.
Consistent with Dr Noon’s expert evidence that, back in 2015, the Applicant had Cognitive Distortions (which he no longer has), the SJ stated that the Applicant, in 2016, lacked any real remorse or insight into his offending. An ancillary aspect to the offending involved an uncharged allegation that the Applicant had touched the victim on the buttocks prior to the offence. In circumstances where the Applicant’s denial of such was never tested, was never the subject of a criminal charge and that the Applicant has continued to deny this aspect even whilst giving his testimony, the Tribunal can only give neutral weight to this aspect of the offending.
The Applicant failed to abide by Australian law on two subsequent occasions. In November 2016 he was convicted of drink driving, fined $550 and had his licence disqualified for 7 months, and in December 2018 he was fined $300 for contravening a red light signal. The two driving offences, 8 and 6 years ago, and the 2015 offence do not constitute a pattern of behaviour akin to a general disregard for Australian law. Since 2009 the Applicant has been a law abiding member of the Australian community.
The risk to the Australian community should the Applicant commit further offences or engage in other serious misconduct
The protection of the Australian community from harm is paramount and whilst the 2015 offence is very serious, this should be analysed in the context of any risk of re-offending by the Applicant. So far as the driving offences are concerned, with the lack of any further offending since 2018, and in light of the evidence of the circumstances surrounding those two offences, the Tribunal is satisfied that there is a very low risk that the Applicant would commit further driving offences. This is particularly underscored by the fact that the Applicant has progressed through a series of driving qualifications culminating in him now being a well regarded B-Double heavy truck driver. The evidence, including the Applicant’s testimony, is consistent with the fact that he takes driving responsibilities seriously and that he is fully aware that any offending may compromise his continued ability to do his job.
The preponderance of evidence before the Tribunal supports the finding that he is now a responsible drinker who takes necessary precautions to avoid combining drinking alcohol with driving. Such evidence also establishes that he now appreciates and understands that alcohol is best consumed in limited amounts, despite the lack of any specific rehabilitation in this regard. The Tribunal notes that his 2016 drink driving offence was a ‘once-off’.
In determining an unacceptable risk it is necessary to evaluate both what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.[5]
[5] Tanielu v Minister for Immigration and Border Protection [2014] FCA 673.
With regard to the 2015 offence, whilst the Respondent submits and the Applicant quite properly accepts that such offending is very serious, the Tribunal is also to consider the risk to the Australian community should the Applicant re-offend.[6] Consistent with the view of the SJ held in 2016, in Dr Noon’s expert opinion, as at 5 May 2023, 12 July 2024 and by her testimony on 28 October 2024 the risk of the Applicant re-offending is low. The Tribunal is satisfied that her expert opinion in this regard is soundly based, together with the related opinions she has provided. As mentioned previously, Dr Noon is satisfied that the Cognitive Distortions which existed within the Applicant in 2015–2016, coupled with his then lack of insight, are no longer present within the Applicant. Further, the Tribunal notes that the Applicant has always wished to apologise to the victim and that he understands why it is not possible for him to do so.
[6] Paragraph 8.1(2)(b) of Direction 110.
Dr Noon’s expert evidence identifies significant protective factors now present in the Applicant including that has been in and continues to be in a loving committed marriage (as underscored by both his and his wife’s evidence) for over two years. Further, he has ‘authentic’ empathy for his victim as opposed to ‘victim blaming’, he has real remorse for his offending and greater insight associated with that remorse and he is now aged over 35.
The Applicant’s wife’s testimony was compelling, putting aside some cosmetic difficulties associated with the underwhelming difficulties of having an interpreter appear via video rather than in person, at an in-person hearing. Her documentary and oral evidence makes plain that, with the full knowledge of the Applicant’s past offending, she has entered into a committed and loving marriage with the Applicant and as at the date of the hearing continues to genuinely love and care for her husband, the Applicant. It is apparent that they have a very honest, open and solid marriage, and the Tribunal so finds. Dr Noon’s expert opinion is consistent in this regard.
The respondent properly submits, inter alia, that there is a not-zero risk of re-offending (not that there ever can be) and that Dr Noon’s opinion is that the Applicant’s risk of re-offending is at the ‘low’ rather than ‘very low’ end of the range, with a score of 1 within the range of minus 3 to 1. The respondent also highlighted that as at April 2023,[7] the Applicant had some limitations to his insight into the 2015 offence and that the Applicant has only completed limited rehabilitation programs.
[7] R1 111-15.
On balance, evaluating all the evidence before the Tribunal including the Applicant’s essential compliance with and his evident respect for his obligations, since 2016, under the Sex Offender Register, his respect for and deference to Australian government institutions including this Tribunal and his lack of re-offending whilst living and working/paying his taxes within the Australian community, the Tribunal finds that this Primary Consideration weighs slightly in favour of visa cancellation.
Family violence committed by the non-citizen
The second Primary Consideration is not relevant, hence it is given neutral weight.
The strength, nature and duration of ties to Australia
In assessing the third Primary Consideration, the strength, nature and duration of the Applicant’s ties to Australia, the Tribunal notes that he has no immediate family in Australia pursuant to paragraph 8.3(1) of the Direction. He does have one cousin, Maninder Singh, an Australian citizen, living in Australia. The Applicant has lived in Australia for the most part of the last 15.5 years and save for his offending, has made a positive contribution to Australia throughout that time. His long-standing friend, Harpreet Singh, an Australian citizen, gave convincing evidence regarding the Applicant’s remorse, unlikelihood of re-offending and good and caring nature. Harpreet would be deeply impacted negatively if the Applicant was removed from Australia. Evidence to similar effect was given by Jagmohit Singh, an Australian citizen and work colleague/friend of the Applicant.
Other documentary evidence comprises various friends and colleagues of the Applicant, some of whom are Australian citizens, providing positive character references for the Applicant, some having knowledge of his offending and others not.
Collectively, this evidence supports a finding that the Applicant is a valued member of the Australian community contributing by helping others, volunteering and working within the Australian community. Since 2009 he has made positive contributions. In that sense he has moved on from the 2015 offence and is endeavouring to make a good life in Australia for himself and his wife, with plans to have children, should he be permitted to stay here.
Further, Ms Kaur’s credible and persuasive evidence satisfies the Tribunal that the Applicant’s removal from Australia will have a devastating impact upon her and her future life plans, including her genuine desire that she have and raise children with the Applicant in Australia. Such is the impact of the Applicant’s recent detention, despite the fact that the Respondent most likely has had knowledge of the conditional suspended sentence imposed in 2016 for some years, that Ms Kaur is now under psychological care. Her testimony and associated evidence establish the severe negative impact the Applicant’s removal will have upon her, accepting that she is not yet an Australian citizen.
Overall, the Tribunal finds that this Primary Consideration weighs significantly against visa cancellation.
Best interests of minor children in Australia affected by the decision
The fourth primary consideration, on the evidence, does not apply. Consequently, this consideration is given neutral weight.
Expectations of the Australian Community
The fifth primary consideration, the expectations of the community, is to be considered normatively by reference to the Direction itself. The expectations of the Australian community as a whole are to be considered.[8]
[8] Paragraph 8.5(4) of Direction 110.
The Tribunal finds that this Primary Consideration weighs in favour of visa cancellation. However, by reason of the matters discussed above, particularly in respect of Primary Consideration 1, the Tribunal finds that it falls only moderately in favour of visa cancellation.
OTHER CONSIDERATIONS
Legal consequences of the decision
No submissions have been made regarding legal consequences of the decision, hence Other Consideration 1 is given neutral weight.
Extent of impediments if removed
As for Other Consideration 2, extent of impediments if removed, the 36-year-old Applicant is essentially in good health with a slight back issue. His health generally has been challenged when he has returned to India to visit in the past. He also has good mental health despite some mental health issues which have been observed rather than been diagnosed, and which have understandably amplified since his detention.
The Applicant is unlikely to face any significant linguistic or cultural barriers if he returns to India. However, on the evidence it is clear that he would have very limited familial support in India, with immediate family members (or even extended family) being unable to provide any long-term support of any value. It is evident that it would be very difficult for the Applicant to get a job in India, particularly as a truck driver, due to the gulf between driving standards in Australia and India and the limited employment opportunities generally there. Without a job it would be difficult for the Applicant to maintain a basic standard of living in India.
The Applicant would have no assets to take back to India and would find it difficult to secure long-term accommodation in light of the Applicant’s limited job prospects in India. Obviously his marriage to Ms Kaur will be severely disrupted, if not compromised, if he is returned to India.
On balance this consideration weighs moderately against cancellation.
Impact on Australian business interests
As to Other Consideration 3, impact on Australian business interests, the evidence of the Applicant and, significantly, his work colleague Jagmohit Singh establishes that the Applicant is a heavy truck driver with substantial qualifications, experienced in driving B-Double trucks. Such a skill set is of value to the Australian community, on the evidence.
Whilst the focus ‘generally’ of paragraph 9.3 of the Direction is where removal would ‘significantly compromise the delivery of a major project or delivery of an important service in Australia’, the evidence before the Tribunal nonetheless enlivens this consideration. The evidence clearly establishes that the Applicant, as a holder of a multi-combination truck licence in a regulated industry, is in high demand. Whilst working he provides an important and much needed service to the Australian community and economy and to businesses within it. The Applicant has significant experience and is well regarded and is valued as a heavy truck driver. In Jagmohit Singh’s witness statement tendered as exhibit A3, he noted that is difficult ‘to find good, reliable and experienced heavy vehicle operators’ such as the Applicant.[9] In the hearing, he testified that his employer has a permanent sign out front advertising for qualified heavy truck drivers. They are in high demand.
[9] A3, [7]–[8].
This Other Consideration weighs heavily against cancellation.
Conclusion
The Tribunal has carried out the evaluative exercise of weighing up the considerations to determine whether it is satisfied that there is another reason to revoke the cancellation decision.
On balance, the Tribunal is satisfied, on the basis of the weights to be applied and the findings outlined above, that the considerations in favour of revoking the cancellation of the Applicant’s visa outweigh the considerations in favour of not revoking the cancellation. Accordingly, the correct and preferable decision is to set aside the decision under review and, in substitution, revoke the cancellation.
DECISION
The decision under review is set aside and substituted with a decision to revoke the cancellation.
1. I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of General Member A. Maryniak KC
..............................[SGD]......................................
Associate
Dated: 14 November 2024
Date(s) of hearing: 28 & 29 October 2024 Counsel for the Applicant: Mr Christopher Fitzgerald Solicitors for the Applicant: AR Law Services Advocate for the Respondent: Ms Megan Peake Solicitors for the Respondent: Clayton Utz
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