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

Singh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 3365 (19 September 2023)
Division:GENERAL DIVISION
File Number(s): 2023/4708
Re:Singh
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member D. Cosgrave
Date:19 September 2023
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 27 June 2023 to not revoke the cancellation of Mr Singh’s visa.
.................................SGD.......................................
Member D. Cosgrave
Catchwords
MIGRATION – Mandatory visa cancellation – Indian citizen – Class WC Subclass 030 Bridging C visa – failure to pass good character test –criminal record – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 99 applied – delegate’s decision not to revoke is affirmed.
Legislation
Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Family Law Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Regulations 1994 (Cth)
Cases
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
Bartlett and Minister for Immigration and Border Protection, [2017] AATA 1561
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Bushell v Repatriation Commission (1992) 175 CLR 408
Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588
DEMIR V MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS [2023] FCA 870
Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78
EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173
Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
GJJF AND MINISTER FOR HOME AFFAIRS (MIGRATION) [2019] AATA 930 (17 MAY 2019)
HOLLOWAY V MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS [2022] FCA 1126
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Matthews v Minister for Home Affairs [2020] FCAFC 146
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Murphy v Minister for Home Affairs [2018] FCA 1924
Nathanson v Minister for Home Affairs [2022] HCA 26
Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Secondary Materials
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)
Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Act 2014
REASONS FOR DECISION
Member D. Cosgrave
19 October 2023
INTRODUCTION

Mr Singh seeks review of the Respondent’s delegate’s 27 June 2023 decision not to revoke the mandatory cancellation of his Class WC Subclass 030 Bridging C visa (the visa).[1]
[1] G documents, G2, page 3. G documents are so named because they are provided under s 501G of the Migration Act 1958 (Cth). They consist of documents in the possession or control of the Respondent relevant to the making of a reviewable decision. They usually accompany the Minister’s written notice regarding a visa cancellation, refusal, or non-revocation.
The hearing was held by audio visual link in Brisbane on 4 and 5 September 2023 with the assistance of an interpreter. Dr Donnelly of counsel, instructed by Zarifi Lawyers, represented Mr Singh. Ms Ho of Clayton Utz Lawyers represented the Respondent.
On 19 September 2023, the Tribunal met its 84-day statutory obligation[2] by providing a short form decision in which it affirmed the decision under review.[3] The Tribunal now gives its reasons for its decision.
[2] Pursuant s 500(6L) of the Migration Act 1958 (Cth).
[3] Khalil v Minister for Home Affairs (2019) 271 FCR 326 [41]–⁠[48].
Unless the context indicates otherwise, passages quoted in bold font have been emphasised by the Tribunal.
FACTS
Mr Singh is a 29-year-old Indian citizen who first arrived in Australia on 29 June 2018.[4] He subsequently departed Australia on 2 January 2020 and returned to Australia on 11 February 2020.[5]
[4] Exhibit 1:G2, page 244
[5] Exhibit 1:G2, page 244
On 14 December 2022, Mr Singh’s visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act) [6] because he did not pass the character test given his "substantial criminal record".[7]
[6] Exhibit 1: G1, page 12
[7] As defined in ss 501(6)(a) and 501(7)(c) of the Act.
On 9 January 2023, Mr Singh applied for revocation of the decision to cancel his visa, accompanied by a Personal Circumstances Form with submissions and evidence.[8]
[8] Exhibit 1: G2, page 197
On 27 June 2023, a delegate of the Minister made a decision under s 501CA(4) of the Act not to revoke the decision to cancel Mr Singh 's visa.[9]
[9] Exhibit 1: G2, page 149
On 29 June 2023, Mr Singh applied to the Tribunal for review of the delegate's 27 June 2023 decision.[10]
[10]Exhibit 1: G1, page 5
OFFENDING HISTORY
Mr Singh has pled guilty to and been convicted of over 200 offences.[11]
[11]Exhibit 8: Supplementary Materials Bundle, SM2, page 75 and G2, page 184. See also observation by Magistrate Clohessy on 17 November 2022 at G1, page 47, line 8.
His offending can be categorised as follows:
(a)stealing
(b)fraud
(c)unauthorised dealing with shop goods
(d)possessing dangerous drugs
(e)contravening domestic violence orders
(f)possessing dangerous drugs
(g)traffic offences
(h)unlawful use of motor vehicles
Mr Singh was sentenced on 13 April 2021 to a term of imprisonment of 16 months which was suspended for 18 months. He was subsequently sentenced on 17 November 2022 to a period of 12 months imprisonment.
Mr Singh does not dispute that he fails the character test defined in s 501(6) of the Act.[12][13]
[12] Exhibit 1: G1, page 22, [8] and Applicant’s Statement of Facts, Issues and Contentions (SFIC), [3]
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) and Section 500 of the Act are the sources of the Tribunal’s jurisdiction in this matter.
Section 501(3A) of the Act, read with sections 501(6) and 501(7), oblige the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test because they are serving a full-time sentence of imprisonment.
The character test is defined in s 501(6) of the Act. A person fails the test if they have a ‘substantial criminal record’ defined by s 501(7) of the Act.
Section 501(7)(c) of the Act defines a ‘substantial criminal record’ as including the situation where a person is sentenced to a term of imprisonment of 12 months or more.
Under Section 501CA(3) of the Act, the Minister is obliged to give notice of a cancellation decision as soon as practicable after it is made, and to invite the affected person to make representations about revocation.
Section 501CA(4) of the Act confers a power upon the Minister to revoke the original decision if:
(a)the person whose visa has been cancelled makes representations in accordance with the invitation; and
(b)the Minister is satisfied that the person passes the character test, or there is another reason why the original decision should be revoked.
MATTERS FOR CONSIDERATION
The character test
Mr Singh’s visa was cancelled on the basis that he had failed the character test. He had been sentenced to a term of imprisonment of more than 12 months and was serving that sentence on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or Territory (Sections 501(6)(a) and 501(7)(c) of the Act).
Consequently, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation decision.
The remaining issue for the Tribunal to consider under Section 501CA(4)(b)(ii) of the Act is whether the Tribunal is satisfied of there being another reason to revoke the cancellation decision.[14] The Tribunal “stands in the shoes of the original decision-maker” but with regard for the situation as at the time of its consideration.[15]
[14] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125, [3]-[5] (Katzmann J); [24] (Derrington J) [103] (O’Bryan J).
[15] Nathanson v Minister for Home Affairs [2022] HCA 26 (“Nathanson”); Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51]; Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 299 [40], 315 [100], 324-325 [134]; Bushell v Repatriation Commission (1992) 175 CLR 408, 425 (Brennan J); Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78, [10]-[11] (Logan, Perry, and Beach JJ).
Is there another reason why Mr Singh’s visa cancellation should be revoked?
The Full Court of the Federal Court in Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172 at [27], approving the reasoning in Viane,[16] identified the following principles as being relevant to the statutory task conferred by Section 501CA(4):
“If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.
The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.
The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.
However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.
Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.
If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.…”
[16] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).
When the Tribunal assesses and considers the factors weighing for and against setting aside a visa cancellation. Section 499(2A) of the Act requires it to comply with Direction 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).[17]
[17] See Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at para [38].
The Direction
The Direction contains mandatory and aspirational considerations guiding the exercise of statutory power under the Act.[18]
[18] BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99, at [22], citing with approval Matthews v Minister for Home Affairs [2020] FCAFC 146, at [45].
The following principles in paragraph 5.2 of the Direction inform the decision-making process:[19]
1Australia 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.
2Non-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.
3The 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.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
[19] Paragraph 5.2 of the Direction.
Paragraph 6 of the Direction provides that, informed by the above principles, a
decision-maker must consider the Primary and Other considerations described in Paragraphs 8 and 9 of the Direction where relevant to their decision making.
Paragraph 7(1) of the Direction provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources.
Paragraphs 7(2)-(3) of the Direction state that ‘Primary considerations should generally be given greater weight than the other considerations,’ and ‘One or more primary considerations may outweigh other primary considerations.’
Paragraph 8 of the Direction provides the following primary considerations:
1.protection of the Australian community from criminal or other serious conduct;
2.whether the conduct engaged in constituted family violence;
3.the strength, nature and duration of ties to Australia;
4.the best interests of minor children in Australia; and
5.expectations of the Australian community.
Paragraph 9 of the Direction identifies the following non-exhaustive list of other considerations to be considered where relevant:
a.legal consequences of the decision;
b.extent of impediments if removed;
c.impact on victims; and
d.impact on Australian business interests.
The Tribunal is not precluded from finding that a consideration specified under Paragraph 9 of the Direction has equivalent or greater weight than a consideration specified under Paragraph 8 of the Direction. This depends on the specific circumstances of each case.[20] The weighing process is determined by decision-makers exercising the relevant power under the Act.[21]
[20] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, at [23] and [28] (Colvin J); FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.
[21] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, at [57].
EVIDENCE
The following is an overview of the evidence tendered or adduced before the Tribunal. The evidence referred to below includes documentary evidence collated for the purposes of section 501G of the Act, documents tendered by the Respondent and the Applicant and testimony given by Mr Singh, his wife Ms Manpreet Kaur, his friend Mr Surinder Singh, Ms Tina Chatterjee and Dr Emily Kwok.
DOCUMENTARY EVIDENCE
The Tribunal received written evidence during the hearing, which is attached to this Decision and marked ‘Annexure A’. The following documents were tendered into evidence and considered by the Tribunal:
(a)G Documents[22]
(b)The Applicant’s statement of facts, issues and contentions (SFIC)[23]
(c)The Applicant’s tender bundle, incorporating statements from Mr Singh, Manpreet Kaur, Jitendra Singh, Narinder Singh, Surinder Singh (of the Punjabi Police) and Surinder Singh (General Secretary of the Brisbane Sikh gurdwara).[24]
(d)The Respondent’s SFIC[25]
(e)A Bridging Grant Visa Notification[26]
(f)The Respondent’s Supplementary Materials Bundle dated 24 August 2023.[27]
(g)The Applicant’s Supplementary Tender Bundle dated 30 August 2023[28]
(h)Dr Emily Kwok’s dated 30 August 2023 report[29]
[22] Exhibit 1: G-Documents G1 to G12
[23] Exhibit 2: Applicant’s Statement of Facts, Issues and Contentions
[24] Exhibit 3: Applicant’s Tender Bundle
[25] Exhibit 4: Applicant’s Supplementary Bundle
[26] Exhibit 7: Bridging Visa Grant Notification – Agyapal Singh
[27] Exhibit 6: Respondent’s Statement of Facts, Issues and Contentions
[28] Exhibit 4: Applicant’s Supplementary Bundle
[29] Exhibit 5: Doctor Emily Kwok Report
ORAL TESTIMONY
The witnesses who gave evidence during the hearing were:
(a)Mr Singh.
(b)Ms Tina Chatterjee, psychologist.
(c)Manpreet Kaur, Mr Singh’s wife.
(d)Surinder Singh (General Secretary, Brisbane Gurdwara).
(e)Dr Emily Kwok.
MR SINGH’S EVIDENCE
Relevant aspects of Mr Singh’s evidence are summarised below. Mr Singh relied upon an interpreter.
Examination-in-chief

Dr Donnelly took Mr Singh through his 7 August 2023 statement. Mr Singh gave the following answers in relation to the issues noted below.[30]
[30] Transcript, from page 6, line 27
Family Background
INTERPRETER: Yes, I was very close to my brother. My dad was in police service and my mum also in police service. My dad died in a car accident. I spent 20 years together with my brother. We went to school together. We went to (indistinct) together and I was very close to him. When he died, I was in stress and depression.[31]
[31] Transcript, page 8, lines 17-21
And
DR DONNELLY: And how long were you married to your ex-wife for?
INTERPRETER: We got married in 2015 and got divorced in 2021, so six years.[32]
[32] Transcript, page 8, lines 44-47
CRIMINAL HISTORY[33]
[33] Transcript, page 7, line 40 – page 8, line 4
INTERPRETER: Please, holly holly. Yes, my criminal history is really bad. I have so many charges only violence charges and others. Yes, I accept that.
DR DONNELLY: And you say that you accept your criminal history, and you say it’s really bad. What makes you say it’s really bad?
INTERPRETER: Yes, I did, under the influence of drugs, I did (indistinct) people, I hurt so many other people. Yes, I really - it’s a bad criminal history.[34]
[34] Transcript, page 7, line 40 – page 8, line 3
Use of drugs
DR DONNELLY: All right. And before I move on to another topic, Mr Singh, just to, sort of, summarise in your words. So you said that your offending was linked to drugs or you’d been under the influence of drugs, I think, were your precise words. Can you just explain to the tribunal as you understand it how you came to take drugs?
…..
INTERPRETER: When I came back from India on 11 February 2020, I asked my wife to move out because I don’t want to live with her, and the house was under my name, and during lockdown there was no job available, and everything was locked down. So I was living in (indistinct words) care home. I put ad on Facebook (indistinct words) on rent, then I came across a contact with two boys named Sabjeet Singh and Sumit Bans because my two rooms were available to give rent, and I gave these two rooms to them. I was not aware about these guys to take drugs, and I was not talking to anybody. I was not sharing my feeling to anybody. I always kept silent. They noticed everything. In this way I came contact with drugs through those boys.[35]
Concerns about returning to India[36]
DR DONNELLY: Now, I just want to ask you some questions about India. Do you have any concerns about going back to India?
INTERPRETER: First of all, I’m scared from my ex-wife (indistinct) because we have relatives, so I’m scared. Second thing, I am scared about the accident (indistinct words) in India is really very high as my father or brother died in accident. So I am really scared about that. …[37]
And
DR DONNELLY: All right. Now, I just want to spend a little bit more time on this issue about the - you say you’re scared of the cousin, I think, who engaged in the relationship with your ex-wife. What precisely are you scared about?
INTERPRETER: He is drug addicted (indistinct words) so he can do anything bad to me. That’s why I am scared. And I have a son back in India as well, and I have a property under my name, so they might be - do a case against me to get the property, and as I told you, my brother has been died in accident. We were only two children for our parents. Now I am left by myself, and I don’t want to live far from my daughter. I want to give her good education so she can settle in a better way in future. My family - they wanted me to do a government job in India, but I came to Australia, so now my dream is that, to give good education to my daughter so she can get a government job here in Australia.[38]
[35] Transcript, page 9, lines 21-41
[36] Transcript, page 22, line 41 – page 23, line 24
[37] Transcript, page 22, lines 41-45
[38] Transcript, page 23, lines 10-24
Cross-examination
Ms Ho conducted a thorough cross-examination of Mr Singh addressing the following aspects of Mr Singh’s application. Mr Singh gave the following answers in relation to the issues noted below.
Domestic Violence
MS HO: Okay. Okay. Thank you, Mr Singh. I might just go back to your offending, and come back to that - the help that you got from your wife at a later time. I do want to ask you some questions about the DVO - the domestic violence order - that was issued against you. So the materials - and I’m looking at the supplementary bundle, at page 88 - or starting at page 88. That’s a copy of a domestic violence order that was made against you on 12 November 2020. Are you aware of that domestic violence order?
INTERPRETER: Yes. Yes, I know.
MS HO: Okay. And you’re aware that the terms of that domestic violence order prevented you from contacting, or attempting to contact, or asking someone else to contact, the aggrieved: so the - and that’s the person who the domestic violence order was made for. Do you agree with that?
INTERPRETER: Initially, I was not aware about the protection order that was against me. On 29 September I got a call from my ex-partner because she wanted to talk to her son, and her son was reluctant to make a direct call to her. On 30 September she gave me a call - missed call, I didn’t (indistinct) her phone, and I already (indistinct words) to the tribunal. And my wife asked me, ‘Why she is calling you’, then I explained to her, she’s calling me (indistinct) and I didn’t try to attempt - I didn’t attempt to phone her. I received a calls from her, and that time I was not aware about her complaint and protection order.
MS HO: Thank you, Mr Singh, so I do want to point out to you though, that in the materials, and I’m looking at G2 191, you did enter a plea of guilty to contravention of domestic violence order, and the facts of that are set out in the sentencing remarks from the Magistrate’s court. And they indicate that you did contact - you agree that you contacted your wife or made attempts to contact her, and that is in contravention of the terms of the domestic violence order.
INTERPRETER: Yes, I know I breached a condition, I agree with that. Then I completed domestic violence course, then I came to know about we are not allowed to contact the person, and we are not allowed to contact the person through someone else. I agree these conditions - that time I was not aware about that but now I have knowledge.
MS HO: Okay. So now, would you agree that if you were ordered by a court not to do something, you should follow that order?
INTERPRETER: Yes. [39]
[39] Transcript, page 31, line 16 – page 32, line 10
And
MS HO: Okay, so I’m going to go to page - I’m going to go to page 94 and 95 of the supplementary materials. What that is, is an application for a domestic violence order, and the person who made the application indicates that you had hit the victim, and you were aggressive towards her including during intimacy, do you agree with that?
INTERPRETER: I am not agreed to this statement. I swear on my god, I never hit any lady in my life. When I came to know about her extramarital affairs, straight away I asked her to move out from the house. I don’t know why she put these allegation on me, you can check with family. I’m not agreed to that. I got a call from her on 30 September 2021 and on 1 October she made application against me, and she filed charges. If she is scared from me, then why is she calling me. I didn’t do any wrong behaviour with her.
MS HO: Mr Singh, when you say that you got a call from her on 30 September 2021, and then 1 October she made an application against you, is it fair to say that at around that time you became aware of the application against you - the application for a DVO.
INTERPRETER: I was aware about the divorce, but I was not aware of the DVO application. I been to the golden city, but I was not aware about these charges that she filed on me.
MS HO: Mr Singh, I just have one more question, do you accept that - sorry, in relation to the DVO, sorry - do you accept that contacting the victim, including texting her on several occasions and sending her a video of you drinking weed killer, or purporting to, that kind of communication is threatening?
INTERPRETER: Can you say this again?
MS HO: Sorry, do you accept that contacting the victim on several occasions, including sending a video in which you purport to drink weed killer is threatening behaviour?
INTERPRETER: Yes.[40]
[40] Transcript, page 32, line 26 – page 33, line 14
Mr Singh’s Family Relationships in India
MS HO: When you went back to India in 2020, did you stay with your mother?
INTERPRETER: Yes.
MS HO: All right. And what about your son? Do you have any contact with your son who lives in India?
INTERPRETER: Yes.
MS HO: I’m sorry, you do have contact with your son?
INTERPRETER: Yes.
MS HO: How often do you talk to him?
INTERPRETER: Two or three times in a week.
MS HO: I just wanted to ask also about your family in law. In the G documents you’ve listed that your family in law are your close family. So that’s your wife’s mother and father, as well as your wife’s siblings, so her sister and her brother. Do any of those family members live in India?
INTERPRETER: My mother-in-law and father-in-law - they are here onto this visa, and my sister-in-law is here in Australia as well, and three or four months ago my brother-in-law been to Italy.
MS HO: Sorry, what was that?
INTERPRETER: So there is no one in India.
MS HO: No one in India, okay. But your parents in law, they’ll return to India, is that correct?
INTERPRETER: Yes. Yes, because their visa is going to expire.[41]
[41] Transcript, page 25, line 41 – page 26, line 32
And
MEMBER: Thank you, Ms Ho. I’ve got some questions for Mr Singh. Madam Translator. Mr Singh, in the personal circumstances form you filled in on 9 February 2023, this year, you wrote that your cousin had blackmailed both your mother and yourself. What did you mean by that? And can you give you give us an example?
INTERPRETER: They want to take my property. They did up case against me, and they want - I keep taking drugs, and they can take my property. They can snatch my property.
MEMBER: How is that? How can they take your property, if you ‑ ‑ ‑
INTERPRETER: Property is under my name, and they made a case to take my child custody. If they got the custody, then half of my property will go to my son. So that’s why they are - they want, if I get an accident, or if I continue with the drugs, I’ll die - then my property will go to my son. And they also did a case against us. So my mum - she is - they are harassing my mum, and they are not attending the court hearing, and taking the dates against (indistinct) again.
MEMBER: Thank you. In your lawyer’s statement of facts, issues and contentions, you - it’s said that you are aware that your cousin has links to individuals with criminal backgrounds in India. How are you aware of that?
INTERPRETER: He is living from 15 or 20 kilometres far from my place, and he also takes drugs, and he has involvement in gangsters and smugglers.[42]
[42] Transcript, page 36, line 35 – page 37, line 25
Nature of Mr Singh’s offending in Australia
MS HO: Okay. Thank you, Mr Singh. So I just have a couple of questions in relation to your offending. In the supplementary materials the police have essentially summarised some of your offending before April 2021. Essentially, they’ve described a pattern of conduct. It describes that on several occasions - being over 150 at least - you attended a store with a receipt that wasn’t yours for products that weren’t yours. You then went into the store, you obtained those products from the store and then proceeded to go to the counter and ask for a refund for those items so that you would essentially get cash - or money on your bank card or a cash refund. Do you remember those incidents?
INTERPRETER: Yes.
MS HO: Yes, okay. And so would you agree that there is - that that kind of conduct is deceptive?
INTERPRETER: Yes. Yes, and I feel really sorry for that.
MS HO: There’s over 150 of them. You have to agree that they’re very repetitive.
INTERPRETER: Yes.
MS HO: And then, also in terms of the impact on businesses, it’s not just a financial impact, but it is also an impact in terms of resources required of the businesses to respond to that kind of conduct.
INTERPRETER: Yes.
MS HO: All right. And, Mr Singh, sorry, you were then sentenced by the Brisbane Magistrates’ Court. So you went to the court in April 2021, and you received a suspended term of imprisonment for 16 months. And you also served some pre-sentence custody time. That’s correct?
INTERPRETER: Yes.
MS HO: All right. Okay, so after that time - after you’ve been to the court, Mr Singh, you continued to offend, and there are a number of incidents that are recorded in the materials before the tribunal about you continuing to commit fraud offences in particular. That’s right?
INTERPRETER: Yes.
MS HO: Some of them are quite deceptive. Would you agree that going to a phone store and changing a price tag on a phone, and replacing the phone with a phone that you had used and was in your pocket, and essentially taking a new phone - that’s very deceptive conduct?
INTERPRETER: Yes. I did it once.
MS HO: Mr Singh, why did you continue to offend after you had been to the court before, after the court has sentenced you?
INTERPRETER: Yes, after the sentence, I did this offence, because that time, there was no support, no work, and I was not aware about any sort of education. Like, drug is not the only thing to get relief from all sort of stress, but that time, I don’t have any support from my family, but now, I have learned everything, how we can stay away from bad drugs, and I have all education. From - with the help of that education, I can keep myself - stay away from these sort of offences.
MS HO: I just wanted to go into that a little bit more. When you say that you had no support from your family - can you tell the tribunal when you first met your now wife.
INTERPRETER: I came into contact with my wife in 2020, through my friend, where we got married on 26 October 2021.
MS HO: Okay. Mr Singh, so the evidence in front of the tribunal indicates that you continued to offend after you met your wife, and you had support - and you had your wife around, who was a - who I understand is a support person to you. Can you explain that to the tribunal?
INTERPRETER: That time, I didn’t have any education how I can escape from this drug addiction.
MS HO: Okay. And just in terms of when you say that you didn’t have any education about breaking out of a drug addiction cycle, how did you come to know about courses - or how to get out of drug addiction?
INTERPRETER: So when I went to jail, I came to know about these courses. I applied for the course, and I fill the form, but I couldn’t get the date, because the waiting period was so long. Then, in detention centre, on 25 December, when I came here, I came to know about other online courses. I saw so many videos related to the rehab education. Then I came to know, if I want to quit the drug addiction, then I have to do these sort of course.
MS HO: Okay, and that was the - that’s the second time you went to jail; is that right?
INTERPRETER: Yes.
MS HO: Okay. And I just wanted to confirm - so when - so is it the case that when you first went to jail, you didn’t know about those courses at all; no one told you about those courses?
INTERPRETER: No, because of lack of English skills, I didn’t know about these in my first time jail. The second time, yes, there was some Indian people. I came contact with them, and then I came to know about these courses.[43]
[43] Transcript, page 27, line 39 – page 29, line 45
And
MEMBER: Thank you. Now, Ms Ho took you to a long string of fraudulent offending by you, which involved taking in receipts and returning items. Do you agree that that was a fairly organised set of crimes?
INTERPRETER: I did these offence under the influence of drugs.
MEMBER: There were 98 of them in the police records. Were you under the influence of drugs on all 98?
INTERPRETER: Yes[44]
Rehabilitation
MS HO: Thank you, Mr Singh. And I do want to ask you, why should the tribunal believe you when you say that because you have your wife, you are able to talk to her now - and you have also told the tribunal, in your written evidence, that, because you also have your daughter around, you won’t offend in the future - why should the tribunal believe you, when you had that in the past? Sorry, Mr Singh; can you press the button again. Yes.
INTERPRETER: Member, initially, I was not aware about how I can quit the drug, how I can stop myself for doing these sort of thing. But now I have a knowledge, I have - I done drug-related course, and SMART Recovery classes, I learnt so many things, and I will continue these courses in my life. And there is also a organisation, Live - Live Life - Lived Well, who can offer mental health courses. I don’t want to lose my chance. I know my wife and my daughter - they are suffering a lot because of this, and my daughter is not getting the upbringing as much as good she can take, so I don’t want to lose this opportunity, and I want to give a good life to my wife and daughter. I will continue these sort of course. I check with the people who are in their recovery period from last 10 years. I - I am in contact with them. They said, we need a drug counsellor. I’ll keep in touch with all these sort of facilities in my life when I come out, and I’ll do the (indistinct) I will go to the Sikh temple, and I will keep away myself from drugs.[45]
[44] Transcript, page 37, line 16 – line 25
[45] Transcript, page 35, lines 1 -21
Ms Chatterjee’s evidence
Ms Chatterjee affirmed her 26 August 2023 report.[46]
[46] Exhibit 4: Applicant’s Supplementary Bundle pages 1 -3.
In cross-examination Ms Chatterjee gave the following answers in relation to the issues noted below:
MS HO: When did Mr Singh first come to you for an appointment?
MS CHATTERJEE: Let me just double check the date. But the first time I spoke to him was on 29 June 2023.
MS HO: And who organised that appointment?
MS CHATTERJEE: That was his wife.
MS HO: And since then my understanding is that you’ve had seven one hour sessions, the last one being on 25 August; is that still correct?
MS CHATTERJEE: Yes.
MS HO: All right. And those sessions they have been by Telehealth; is that right?
MS CHATTERJEE: Yes, it has been.
MS HO: So by video?
MS CHATTERJEE: We’ve tried the video on the first time, but I mean it was very difficult because the internet connection wasn’t great, so we changed to a phone call instead.
MS HO: Thank you for that. Do you offer Telehealth to persons who are located overseas by any chance?
MS CHATTERJEE: I can, but I haven’t personally, not yet, no, I haven’t.
MS HO: Thank you. And from those sessions that you completed with Mr Singh what would be your diagnosis of Mr Singh at present?
MS CHATTERJEE: I don’t think he has a mental illness at the moment. I think he’s mentally doing quite well compared to of course, you know, the incidents that have happened in the past. So I wouldn’t have given him a diagnosis of such at the time.
MS HO: Even though you don’t consider that Mr Singh has a diagnosis, a mental illness at present, and there’s no diagnosis as such?
MS CHATTERJEE: Yes.
MS HO: - - - do you have any views as to his future treatment, or whether that is required?
MS CHATTERJEE: As I mentioned in the report it will be based on how he’s doing. So, you know, I am going to check in on him every two to four weeks. But, you know, if at any point he does feel that he’s going downhill, that he’s not (indistinct), he’s not well, in a good mental health space, then we will increase the frequency of the sessions.
MS HO: Is it correct to say that at present whilst Mr Singh doesn’t have a diagnosis your view is that it would be appropriate for him to continue psychology?
MS CHATTERJEE: Yes, just to keep him - to have someone to talk to in case he does feel - like if he feels depressed in any way, or feeling stressed. But if at any point he does feel better then we can stop and review him when he needs to go back again.
MS HO: And just in terms of Mr Singh’s treatment and the nature of the sessions how would you say those sessions have gone so far?
MS CHATTERJEE: I think they’ve gone quite well. I’ve given him exercises to do while he’s in the centre, and he’s been filling them out. Every strategy I’ve given him he’s been doing, so I think it’s gone quite well.
MS HO: And so because those sessions have gone quite well and he’s been participating in activities what would you say about Mr Singh’s ability to address stress?
MS CHATTERJEE: In terms of?
MS HO: In terms of having for example strategies to address stresses, family stress for example?
MS CHATTERJEE: Yes. Well, we’ve talked about ways he can relieve the stress. You know, he’s talked about, you know, he finds exercise quite helpful. So anything like that will just relieve him - and of course talking about it as well is very important and he’s aware of that. So I’ve encouraged him to talk to his wife a lot more, to talk to me when needed, just to help sure that, you know, he never gets to that point again where he does, you know, overstress and resort to other sources such as the drugs that he was using in the past.
MS HO: So is it your view that Mr Singh is able to appropriately address stress if it was to come up again?
MS CHATTERJEE: Yes, I do.
MS HO: And I am just wondering what you talked about in terms of drug use during the session?
MS CHATTERJEE: Well, we talked about just - of course in the initial session it’s all about getting to know him. So he gave me a bit of background information about what had happened and what led up to the drug use. The drug use itself I asked him, you know, on several occasions that if he were to go back into the community again what would be, I guess, his trigger to go back to that, and one thing he mentioned was the people that he was living with at the time. So we talked about of course not having any relationship with those kind of people, and he said on several occasions that he’d never used drugs before. So it’s purely based on of course, you know, the mental state that he was in at the time as well as, you know, having the external people like, you know, those roommates that were encouraging him to do it. And if it any point - like we talked about, you know, if he does feel the urge, you know, to contact me or we can get into - I think he’s got a drug counsellor, a drug and alcohol counsellor as well just to keep those people in contact if he has those urges come up again.
MS HO: And it’s your view that Mr Singh will be able to, if he was released in the community, he would be able to rely on those external sources of support, the drug counsellor for example, to refrain from drug use?
MS CHATTERJEE: Yes, I do.[47]
[47] Transcript, page 16, line 40 - page 18, line 29
Ms Manpreet Kaur’s evidence

Ms Kaur affirmed her 7 August 2023 affidavit.[48]
[48] Exhibit 3: Applicant’s Tender Bundle pages 8 to 16.
In examination-in-chief Ms Kaur gave the following answers in relation to the issues noted below:
DR DONNELLY: All right. I am just going to move onto another topic now, Mrs Kaur. In paragraph 36 of your statement you say that you’re the sole or only breadwinner at the moment, and you start work at 5.30 in the morning and you finish at 8 o’clock at night. Does that remain the case?
INTERPRETER: Yes.
DR DONNELLY: Excuse me for saying this that seems like very long hours. How would you describe your health situation at the moment? It’s okay, take your time, Mrs Kaur?
INTERPRETER: Sorry.
INTERPRETER: I am left with no option. Our house is under construction and I have a lot of debt on me, and I have to pay a fee for Agyapal, and I have a little baby as well. So the last one year we have (indistinct), and I have a health-wise (indistinct words). I have a problem with a migration issue and stress. I’ve been to hospital four to five times because of stress and migraine, in Logan Hospital. On 4th of 8 I had an accident, I had a neck injury and I am in pain still, but I cannot go to the (indistinct) because of my child, they don’t allow child in. And I am facing a lot being alone.
DR DONNELLY: You gave evidence previously that you were getting up and working at 5.30 in the morning and coming back late at night. What’s happening with the child during that time?
INTERPRETER: My mum is here, she’s on (indistinct), looking after my daughter. Since she born I didn’t spend too much time with my daughter. I was busy in my work. I feel really bad for her. When I came home she looks - she looks and she (indistinct) around me and ask me to play, but I am too tired and I can’t give much time to her, and I really feel bad.
DR DONNELLY: Can you take your daughter to work with you?
INTERPRETER: In bond cleaning I can take my daughter with me, because there is vacant house and I can take her, but sometimes we are not allowed to take kids with us, so sometimes not.
DR DONNELLY: All right. You mentioned that your parents - sorry, your mother is looking after your daughter. Is that something that is going to continue into the future, or what are the circumstances in relation to your mother?
INTERPRETER: They are here for three months. They are looking for the return tickets, and they will come - they will go back in India after three or four months.
DR DONNELLY: Now, you’ve spoken about your daughter. What kind of relationship as best you can comment on does your daughter have with your husband?
INTERPRETER: They both have a really strong bond with each other. My daughter learned her first word, that is ‘Papa’. Agyapal is always able to call and always in contact with my daughter.
DR DONNELLY: Sorry to ask you this question, Mrs Kaur, but I have to. If your husband has to go back to India how would that make you feel?
INTERPRETER: We don’t think our life without him. I have a lot of debt on me. If he will have to go back to India after that our life will be worse.
DR DONNELLY: When you say that our life will be worse is that in the context of Australia or India; could you just clarify that, please.
INTERPRETER: In Australia if he will go back to India.
DR DONNELLY: So you’re not planning to go to India?
INTERPRETER: No. [49]
[49] Transcript, page 43, line 34– page 45, line 6
Cross-examination of Ms Kaur in relation to the issues noted below.[50]
[50] Transcript, page 45, line 46 – page 46, line 26.
MS HO: In terms of your business I understand that you have a cleaning business. Could you please explain what your role is in that business?
INTERPRETER: I have a contract with BCA company, I have a contract with (indistinct) work in Logan Village, and 26, or more than 26 Chemist Warehouse cleaning. I work as a subcontractor.
MS HO: Do you own the business or do you work for somebody else?
INTERPRETER: Somebody give her a contract.
MS HO: Okay. So you are a subcontractor for a cleaning business; is that right?
INTERPRETER: Yes.
MS HO: In the work that you do the company that you work for has the contracts with Chemist Warehouse and Logan Village and another business, but you don’t carry out every single cleaning job; is that right?
INTERPRETER: I have a subcontract for Chemist Warehouse, and contract for Logan Village (indistinct), and BCA company.
MS HO: Sorry, just to understand your role as well, are you doing the cleaning yourself or do you get other people, employees to clean for you?
INTERPRETER: I have two people who work for me on a permanent basis, and two people on temporary basis if my daughter needs me, or if I get sick.[51]
[51] Transcript, page 45, line 46 – page 46, line 26
Surinder Singh’s evidence
Mr Surinder Singh relied on his 4 July 2023 and 25 July 2023 statements.[52]
[52] Exhibit 3: Applicant’s Tender Bundle, pages 19 and 20.
DR DONNELLY: Thank you, Member. Good afternoon, Mr Singh. You can hear me okay?
MR SURINDER SINGH: Yes.
DR DONNELLY: I understand you prepared two statements: one is dated 4 July 2023 and another one is what passes to be 25 July 2023 in relation to these proceedings. Is that correct?
MR SURINDER SINGH: Yes, yes.
DR DONNELLY: What’s your relationship with Mr Agyapal Singh?
MR SURINDER SINGH: Like, I know him through a friend. I didn’t know him much, but - I didn’t know him before - he used to come to the temple and then met through a friend. And then I saw him going to - coming to the temple and saying ‘hello’ and ‘hi’. So I saw him, you know, we do some general talks in the temple. It was quite - before, like, 2019, and then, yes, I saw him, made relationship, build - develop as his friend, and I saw him, you know, doing the temple - plenty of work in the temple.
DR DONNELLY: When you say you saw him ‘doing work in the temple’, can you give us some examples of what he was doing in the temple?
MR SURINDER SINGH: Like, you know, after a period, we (indistinct) and I saw him doing laundry and doing some cleaning, cleaning dishes, helping people to make - preparing the food.
DR DONNELLY: How many - - -?
MR SURINDER SINGH: So it’s, like, volunteer things.
DR DONNELLY: Volunteer things?
MR SURINDER SINGH: Yes.
DR DONNELLY: How many times would you say - are you able to give a number how many times you saw him engage in these voluntary activities?
MR SURINDER SINGH: No, I don’t - I don’t have any numbers, but, you know, I saw him, like, you know, he comes, maybe, this month he come, like, twice, next he come, like, once. On Sundays mostly even if they’re busy, so yes, I saw her - I saw him doing volunteer work I’ll say 50, if you want a number.
DR DONNELLY: Thank you. You say that, despite his current situation - this is in your more recent situation - you still believe that he’s a valuable member of the Australian Sikh community?
MR SURINDER SINGH: Yes.
DR DONNELLY: What makes you say that?
MR SURINDER SINGH: Like, I think he been to detention for a bit of 9- 10 months, from that and he went to jail, and he told me about, after he come to the jail, like after he were to leave from detention, he talk with me quite frequently and then he explained his situation. Like, he told me he had those criminal charges and his visa got cancelled and he’s applying to get his visa back. And then, yes, that’s - you know, since, I see the positive changes, like, you know, he express himself out there. He talk more freely. Like, he was talking freely before, but I didn’t - I didn’t notice any sort of, you know, drug addiction signs, you know, before. But now, he talk more (indistinct) but he talk over the phone, he talk more frequent, you know. He ask us a question, you know, to practice religion, you know. I feel - I feel like he personally change, you know, his behind is changing outside. And I saw some positive - like, I didn’t saw it, but, you know, I feel like it’s somebody expressing the things, you know. I think it’s doing something good for him. And he explained that, you know, he practiced religion. Even he’s in a detention, he’s practicing for like once a day or twice a day; I’m not really sure how many times he does. And, yes, so that’s the positive changes, and yes, he’s - he got a family here, wife, daughter, so - father, uncle, aunties. So if he got released in the community, I think will be, you know, beneficial for us, you know. I think he’s a good member of Sikh community. He made some mistakes in the past, but I think he’s changed himself a lot. So yes, I saw those - I can, you know, feeling those sort of changes in me, because - in him, because he’s changed. You know, we talk frequently, asking things, how’s his family going I always ask him and he spoke to me. Yes, so he want to - hopefully he will continue those things when he got released from situation, detention.[53]
[53] Transcript, page 52, line 1 – page 53, line 15
Cross-examination of Mr Surinder Singh in relation to the issues noted below:
MS HO: Thank you, Mr Singh. My name’s Gabrielle. I am a lawyer for the minister, and I just have a few questions for you today. I just wanted to ask you about what you know about Mr Singh’s offending. Could you please tell the tribunal what you know about Mr Singh’s criminal history?
MR SURINDER SINGH: He been to - he been to jail. He had a drug charges. He has some sort of - I don’t have his criminal history with me. Like, he had drug charges, I think; he has some sort of stealing charges. I think speeding, some sort of speeding charge. There was like three of them, yes, couple of drugs and - yes, something like that. And he miss a court while his - and his wife were about (indistinct). I did read his (indistinct). I didn’t read his criminal history, so.
MS HO: Okay?
MR SURINDER SINGH: I believe those are the - those are the charges.
MS HO: So you haven’t read his criminal history? Is that right?
MR SURINDER SINGH: Yes, I haven’t read it. Like, you know, he got few drug changes, missing the court, speeding. I didn’t, because - I didn’t even ask him. He provide me that.
MS HO: So you haven’t asked him about that, sorry?
MR SURINDER SINGH: No. Yes, I didn’t ask him, you know, ‘Please provide me all the charges,’ you know, ‘what happened.’ I didn’t know all of them, but I - he got drug charges, yes. Drug charges, missing the court, and speeding.
MS HO: Yes. Did Mr Singh tell you about how many charges he has - had in the past?
MR SURINDER SINGH: I didn’t ask him, yes. He didn’t - he told me he’s got fewer than five, six, something like that. Maybe me told me. I don’t remember, like, yes.
MS HO: Sorry, I just missed that last bit. Did you say, when you said he told you - maybe he told you in the past - - -?
MR SURINDER SINGH: Yes.
MS HO: - - - but you didn’t ask how many charges. You said maybe six, was it?
MR SURINDER SINGH: Five, six, yes, altogether, I think. Something like that. Yes, honestly I didn’t - I didn’t review his criminal history, but he told me, like, you know, he have - (indistinct) are true. Yes, that’s all I pretty much know: drugs, speedings, and court.
MS HO: Mr Singh, are you aware that Mr Singh - sorry, the applicant’s criminal history includes over 100 separate offences - or 100 separate charges, sorry?
MR SURINDER SINGH: So he’s got over 100 charges of them?
MS HO: That’s right?
MR SURINDER SINGH: Okay. I mean, I didn’t know that. I didn’t know about that he got 100 charges, but I know he got speeding and drugs, those charges.[54]
[54] Transcript, page 53, line 36 – page 54, line 29
In re-examination, Mr Surinder Singh gave the following evidence in relation to the issues noted below:
DR DONNELLY: So my learned friend has just informed you about the number of criminal offences?-
MR SURINDER SINGH: Yes.
DR DONNELLY: So you have that knowledge now?
MR SURINDER SINGH: Yes.
DR DONNELLY: Does that change your evidence?
MR SURINDER SINGH: No.
DR DONNELLY: Sorry, I’m going to have to get you to repeat that, because that’s an important question?
MR SURINDER SINGH: No. I don’t want to change my evidence.
DR DONNELLY: When you say, ‘I don’t want to change my evidence,’ what does that mean to you?
MR SURINDER SINGH: That means I - you know, he - because he explained me about his charges. I didn’t know how many altogether, but at least he was honest with me for all those charges, and he’s changing himself. Yes, and he continue those things, you know. He’s a part of (indistinct), so he will continue all the stuff.[55]
[55] Transcript, page 55, lines 20 - 35
Dr Kwok’s evidence
Dr Kwok relied on her 30 August 2023 report.[56]
[56] Exhibit 5: Doctor Emily Kwok Report
In examination-in-chief Dr Kwok gave the following evidence in relation to the issues noted below:
DR DONNELLY: Thank you. Sorry, Dr Kwok. I’ll ask that again because there was some really bad feedback, and I apologise for that. I had asked you, paragraph 61, first bullet point, that you opine that Mr Singh had no current subsisting mental health condition, and you said, ‘That’s correct.’ And then I asked you, if that being the case, why do you recommend ongoing mental health treatment with a psychologist and drug counsellor? And your evidence, as I understand it, was to the effect that - for relapse prevention purposes, stressors, and it would be helpful for him to engage with ongoing treatment. Is that correct?
DR KWOK: That is correct.
DR DONNELLY: I just want to ask you about that. You say ‘relapse prevention’. Is that relapse prevention whether he’s in Australia or in India?
DR KWOK: His psychologist is in Australia, so it would be for relapse prevention in Australia. It may be helpful for him to have a psychologist in India; however, I don’t know whether he will be able to access one in India.
DR DONNELLY: All right. You say in your fifth bullet point that Mr Singh was suffering from adjustment disorder and substance use disorder. And so does the applicant still suffer from any of those medical conditions?
DR KWOK: At the time of my assessment, he was not presenting with any indication that he is still suffering from these conditions.
DR DONNELLY: You come to the conclusion that Mr Singh is a low risk of reoffending including domestic violence offences. Can I ask you just to elaborate on that risk assessment?
DR KWOK: Yes. As previously indicated, at the time of offending, the applicant was suffering from substance use disorder and also adjustment disorder, and he did indicate that he had committed crimes in order to support his drug habit. He currently does not have or he is in remission for substance use disorder, and so that naturally reduces his risk of needing to commit crimes to support a drug habit as he does not have a habit. He is also in a stable marriage, compared with the time of offending when he was going through a separation and divorce proceeding, and so he does have a stable support within his marriage. He is now accessing professional help, and he did indicate that he has formed other associations through the online recovery groups that he attends. And so in comparison to the time of offending, he does have more support and also less emotional distress, less emotional psychological symptoms as well, and that reduces his risk.
DR DONNELLY: Thank you. And you say that he’s in remission. Just for my benefit - I know I ask you this question in every hearing, but it’s a different hearing - Dr Kwok, ‘remission’, what does that mean psychologically? What’s the period before you form the view that someone’s in remission?
DR KWOK: Yes. So he is, by definition, what we class as ‘sustained remission’; and that is, for a period of at least 12 months, he has not met the criteria of a substance use disorder, and that is based on his self-report that he has not used drugs since July 2022.[57]
[57] Transcript, page 60, line 1 – page 61, line 30
When cross-examined, Dr Kwok provided the following answers in relation to the issues noted below:
MS HO: When you mention that there was the protective factor of the fact that the applicant had the support of his wife and he was in a stable marriage, there’s evidence before the tribunal that the applicant continued to offend despite the fact that he’s been married since October 2021. So he offended after that time. Does that change your opinion as to the protective factor of being in a stable marriage?
DR KWOK: I have questioned the applicant about this at the interview, and his response, and my understanding, was that he had initially hidden his drug use from his wife. And so, at the initial stages, he was still using drugs, and it was unknown to his wife and so she was unable, because she did not know, she was unable to provide support during the initial stages. And it was only after he had - or after she had discovered his drug use that she had recommended for him to seek professional help. Unfortunately, he was incarcerated before he was able to attend his first appointment in the community. And so that was his explanation for that. As I understand was that his reflection process also continued from prison and into detention centre, and so his insight into his problems developed over time through incarceration and detention.[58]
[58] Transcript, page 62, lines 21 – 37.
And
MS HO: In your evidence, you say that it’s - it would be an issue for the applicant if he was returned to India because of lack of mental health services or availability of mental health services in India. Why do you say that that is an issue if it’s your view that the applicant, at present, doesn’t have a mental health condition or any illness?
DR KWOK: I believe my - what I have written in the report was, the question would be, if he does present with stressors from returning to India and being separated to his family, and if the stressors does result in depressive symptoms or an adjustment disorder, whether he can then access help. And so it was hypothetical.
MS HO: So it’s your view that - I mean, I think it’s - and you can please me know if you think that’s incorrect, but it’s fairly common to experience stress or stressors in some form in the - at various points in time. It’s your view that the applicant requires assistance for dealing with his stress? Is that right, if it was to come up again?
DR KWOK: Yes. It is common for an individual to experience stressors. For the applicant, he does have a history of developing a mental disorder; more specifically, depressive symptoms or an adjustment disorder. So his history of that diagnosis does make him more vulnerable than, say, common - more vulnerable than most individuals.
MS HO: I do want to ask about the applicant’s drug use and your view on that - sorry, his substance use disorder. It’s quite clear that the applicant - so the majority of the time that, as you say, that the applicant’s been in remission, he has been in an environment where his access to drugs is limited. He’s been incarcerated and he’s now in immigration detention. Does that change your view as to whether or not the applicant is successfully in remission from substance use disorder so much as he is not in an environment where he’s able to access drugs more freely?
DR KWOK: By definition of the diagnostic manual, no, it does not. And also, the other situation is that - hence why I recommended that he continue the counselling in the community as well, even though - even though his offences started, initially started, as a result of situational stressors that are no longer existent for him. And if he does return to the community - by that I mean when he returns to the community, he’s no longer dealing with a broken-down marriage; he is no longer going through a period of just losing his brother and going through that initial grief. And so he’s returning to an environment that is very different to the environment that triggered him to start drug use in the first place. So, no, I won’t say that his risk would be - would increase if he is released from detention at this time.[59]
And
MEMBER: Dr Kwok, Member Cosgrave here. I just have a few questions. At paragraph 22 of your report, you note that the applicant reported that he began to use illicit drugs after he returned from India in 2020. The date of his return is 11 February 2020. My question goes to a behavioural point, and you’re the expert here on this. The police investigating his fraud offences first observed him committing a fraud offence on 17 April 2020, approximately just over two months after he returned. How common would it be for someone to go from effectively zero drug use, if we take the applicant at his word, to committing organised fraud offences two months later to support that?
DR KWOK: Thinking out loud here is that, if it was - because that period of time was also during the COVID lockdown as well. And so, generally speaking, it may be uncommon, but depending on how severe the substance use at that time as well. I would say that his substance use disorder would have become very severe very quickly, because, if they were in a period of lockdown, then he would have continual access to it. As I recall, he was using four to five times a week right from the - from the start. And so if we look at the severity of his substance use, then I would say there would be a relationship to how quickly that his criminal - his criminal behaviours would also develop as well. However, this is just based on reasoning of the environment that he was in, the very rapid development in intensity of - the severity of his disorder, and drawing that relationship with this element of his criminal behaviours.
MEMBER: Thank you. He was charged with 98 counts of fraud ranging from April 2020 through to August 2020, if I’m reading correctly. When I questioned the applicant on it yesterday, he stated that he was under the influence of drugs on each of those 98 occasions. Is that plausible in your view?
DR KWOK: I think it would be plausible if he was saying that he was using drugs during that entire period. I won’t be able to speculate whether he was actually under the influence for each of those 98 charges.
MEMBER: Well, he gave the specific answer that he was under the influence on each of those 98?
DR KWOK: Won’t be - sorry, I won’t be able to speculate that. I can only state, based on what he reported, it would be plausible that he was using drugs heavily during that entire period. But whether he was under the influence at each specific time, I would not know.[60]
[59] Transcript, page 62, line 46 – page 63, line 36
[60] Transcript, page 63, line 40 – page 64, line 28

In re-examination, Dr Kwok gave the following answers in relation to the issues noted below:
DR DONNELLY: Dr Kwok, you said that it was plausible that he was heavily - or using drugs heavily at the time. This is during that period of the fraud offences. You also said that he had - you diagnosed him at that time of having, independent of the substance use disorder, of having adjustment disorder. When did that, would you say, that formed? Was that sort of at the before the start of April or was it later on 2020?
DR KWOK: The adjustment disorder would have come within the three-month period of him returning back from India. If he returned in February, then the adjustment disorder would have presented sometimes between the February and the May period. [61]
[61] Transcript, page 64, line 39- line 47
THE TRIBUNAL’S ASSESSMENT OF THE WITNESSES
The Tribunal observed Mr Singh as he gave evidence and considers that his credibility is qualified.
While evincing a level of openness regarding his offending, rehabilitation and relationships with his wife and daughter, he sought to qualify or dispute elements of his domestic offending. There is an anomaly between his claim in cross-examination that he was not aware of his former wife’s protection order application[62] and the documentary evidence that he was served with a copy of the protection order at 3:55 pm on 28 September 2021.[63]
[62] Transcript, page 32, lines 45-46
[63] Exhibit 8: Respondent’s Supplementary Materials 3, page 88
He was open about his drug addiction and his rehabilitation efforts, acknowledging the important role played by his wife in getting him to understand his addiction and seek treatment.
The Tribunal has other specific concerns regarding aspects of Mr Singh's evidence.
In particular, the Tribunal found that Mr Singh would give long answers or short answers depending on how it suited him and what he wanted to communicate. For example, answers such as his assertion that he was always on drugs when he committed a large number of what appear to be relatively organised fraud offences between April and September 2020 are concerning. This was especially troubling when compared to the Queensland Police Service court brief’s reference to the suggestion that Mr Singh was involved in a syndicate that benefited from monetary refunds.[64]
[64] Exhibit 8: Respondent’s Supplementary Materials 3, page 85
The Tribunal found Ms Kaur to be a credible witness.
While the Tribunal found Mr Surinder Singh to generally be a credible witness, some of his answers under cross-examination regarding whether being told about the full extent of Mr Singh’s offending altered his evidence test his overall credibility.
Ms Chatterjee and Dr Kwok both provided insightful expert testimony based on the reports and the Tribunal thanks them for their assistance in this matter.
PRIMARY CONSIDERATIONS
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
When considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind that the Australian Government is committed to protecting the Australian community from harm because 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 with 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 consider:
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
TRIBUNAL’S CONSIDERATION: THE NATURE AND SERIOUSNESS OF MR SINGH’S CONDUCT
Paragraph 8.1.1(1)
This paragraph states that, in considering the nature and seriousness of the non-citizen’s ‘criminal offending or other conduct to date’, decision-makers ‘must have regard to the following’:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)     violent and/or sexual crimes;
(ii)    crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)   acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197 A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
(h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Tribunal has considered both parties’ respective submissions about Paragraph 8.1.1 of the Direction.
In essence:
(a)Dr Donnelly conceded that the overall nature of Mr Singh's offending is serious. In assessing the likelihood that he will reoffend in the future, Dr Donnelly avers that Mr Singh's substance abuse issues have been a significant contributing factor, that he has made demonstrable efforts to rehabilitate himself, has also evidenced remorse and that at the time of his offending he suffered from depression, mental anguish and financial hardships. Dr Donnelly argues that Mr Singh presents a very low risk of reoffending on the basis of his limited criminal history and considering his situation and his rehabilitation efforts.
(b)Ms Ho submits that Mr Singh's offending conduct to date is very serious, with reference in particular to his domestic violence offences and the fact that he continued to offend after receiving a suspended sentence of 16 months. Ms Ho further contends that if Mr Singh offended in future there would be substantial physical, psychological and financial harm to the Australian community to the extent that any material risk that Mr Singh may reoffending future should be considered unacceptable.
Paragraphs 8.1.1(1)(a)(i), 8.1.1(1)(a)(ii) and 8.1.1(1)(a)(iii)
These paragraphs require the Tribunal, when considering this matter, to have regard to, and acknowledge that, violent and/or sexual crimes, crimes of a violent nature against women and acts of family violence are viewed very seriously.
The Tribunal concludes, having considered the evidence, that Mr Singh’s criminal and other conduct do not constitute sexual crimes nor crimes of a violent nature against women or children.
The Tribunal has engaged in preparatory analysis before considering whether Mr Singh has committed acts of family violence.
Paragraph 4(1) of the Direction defines family violence to mean "violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful". The definition of “family violence” in paragraph 4(1) refers to specific conduct perpetrated upon “a member of the person’s family”.
Neither “family” or “family member” are defined in the Direction. Section 46 of the Acts Interpretation Act 1901 (Cth) (AIA) provides, in substance, that unless a contrary intention appears, expressions in an instrument have the same meaning as in the Act or instrument which enables or authorises them.
Section 5F of the Act relevantly provides that “a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship. The definition does not specifically include a former spouse, which is relevant here as Mr Singh’s offending in this regard covers a period from when he and his former wife were married and after they had divorced.
The Act itself does not address family violence. The provisions in the Act relating to family units are concerned with establishing who is a member of a person’s family at a particular point in time for migration purposes. For example, being a member of the “same family unit” of the primary applicant for the purpose of an application for a protection visa.
This is different to what the Direction’s family violence provisions in the Direction are aimed at.
It is well known that abuse within a spousal or de facto relationship does not necessarily stop once the relationship comes to an end, and that it sometimes escalates or occurs for the first time after the relationship ends.
Accordingly, excluding violence that occurs in the context of a previous spousal or de facto relationship because there was no existing relationship at the time the violence occurred, would partially defeat the purpose of the family violence provisions in the Direction. The Tribunal does not accept that this could be the Direction’s intention.
The Tribunal notes that the definition of “family violence” in the Family Law Act 1975 (Cth) (FLA) is identical to the definition of “family violence” in paragraph 4(1) of the Direction. This is unlikely to be a coincidence. The FLA defines what a family member is for the purpose of family violence as defined in the FLA Act. Section 4(1AB) of the FLA provides as follows:
“For the purposes of:
…
(aa) section 4AB;
a person (the first person) is a member of the family of another person (the second person) if:
…
(d) the first person is or has been married to, or in a de facto relationship with, the second person;”
The FLA definitions of family member and spouse are expressed to apply for the purposes of the FLA Act. The Tribunal has no mandate to apply them when applying and considering the Direction. However, given they work together with the definition of “family violence” that is found in the FLA and which is also the definition used in the Direction, the Tribunal considers it is reasonable to have regard to the FLA definitions.
In terms of the evidence before the Tribunal, there are three main strands.
The first arises from Mr Singh’s former wife’s 12 November 2020 Application for a Protection Order.[65] His former wife specifically alleges that:
a)Mr Singh slapped his former wife as he 'always tried' to be too aggressively intimate with the victim. If she denied the Applicant's advances, he would hit her with his legs;
b)Mr Singh mentally, emotionally and physically 'harassed' her.
c)Mr Singh sent her emotional text messages and videos of him pretending to drink weed killer. He has also attempted to call her from unknown phone numbers;
d)Mr Singh monitored the victim's location. On several occasions, he attended her workplace and followed her; and
e)Mr Singh entered her vehicle and forcefully attempted to be intimate with her.[66]
[65] Exhibit 8: Respondent’s Supplementary Materials 3, pages 92 -99
[66] Exhibit 8: Respondent’s Supplementary Materials 3, pages 92 -99
The second is Dr Donnelly’s understandable contention that these allegations were not tested and the former wife not called to give evidence.
The third strand is Mr Singh’s 17 November 2022 guilty plea and subsequent conviction for breaching the protection order that his former wife obtained after he contacted his former wife by phone and text message whilst the order was in place.
The Tribunal has considered the evidence and assessed the three strands identified above.
The Tribunal considers that Mr Singh’s actions towards his former wife for which he was convicted constitute ‘acts of family violence’.
The Tribunal considers that this paragraph carries very strong weight in favour of affirming the delegate’s decision not to revoke the cancellation of Mr Singh’s visa.
Paragraph 8.1.1(1)(b)(i)
This paragraph is not relevant. The Tribunal did not see any evidence that Mr Singh has committed any offences involving causing a person to enter into or to otherwise become a party to a forced marriage. There is no reference in the material to any formal conviction to such offending nor is there any reference to such conduct in an independent and/or authoritative police narrative or similar document.
Paragraph 8.1.1(1)(b)(ii)
This paragraph is not relevant. The Tribunal did not see any evidence that Mr Singh has committed crimes against vulnerable members of the community. There is no reference in the material to any formal conviction to such offending nor is there any reference to such conduct in an independent and/or authoritative police narrative or similar document.
Paragraph 8.1.1(1)(b)(iii)
This paragraph refers to conduct forming “...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”. The Tribunal finds that this paragraph is not relevant to its assessment of the nature and seriousness of Mr Singh’s conduct.
Paragraph 8.1.1(1)(b)(iv)
This paragraph is not relevant as the evidence does not disclose any criminal conduct by Mr Singh while in immigration detention.
Paragraph 8.1.1(1)(c)
In applying this paragraph, the Tribunal is precluded from considering sentences imposed on Mr Singh for:
(a)any violent offending that he may have committed against women or children (Paragraph 8.1.1(a)(i)),
(b)acts of family violence (Paragraph 8.1.1(a)(ii)); and
(c)any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage (Paragraph 8.1.1(b)(i)).
Mr Singh received a suspended 16 month sentence on 13 April 2021. More relevant to this paragraph, however, was his conviction and subsequent sentencing on 17 November 2022. He was sentenced to a 12 month term of imprisonment for the offence of unlawful use of motor vehicle and 6 counts of fraud – dishonestly obtaining property from another. He was also sentenced to concurrent periods of 6 months for the offence of stealing by clerks and servants, 2 counts of receiving tainted property and stealing, a 3 month concurrent term of imprisonment for the offence of possessing dangerous drugs, a 1 month concurrent term of imprisonment for the offences of contravention of domestic violence order, driving without a license to merit points, offence of driving et cetera while relevant drug is present in blood or saliva, holder of learner, probationary or provisional licence and driving of motor vehicle without a driver licence, and to separate cumulative 1 month terms of imprisonment for the offences of failure to appear in accordance with an undertaking. He was also found to have been convicted of an offence punishable by imprisonment during the operational period of his previously suspended sentence.[67]
[67] Exhibit 1: G1, pages 4- 51 and Exhibit 8: Respondent’s Supplementary Materials SM 4, pages 130-131
The Tribunal considers that this paragraph carries weight in favour of affirming the delegate’s decision to not to revoke the cancellation of Mr Singh’s visa.
Paragraph 8.1.1(1)(d)
This paragraph addresses two specific aspects of a non-citizen's offending: its frequency and/or whether there is any trend of increasing seriousness.
Frequency
Mr Singh’s criminal history[68] makes clear the relatively high and sustained frequency of Mr Singh’s offending, especially his fraud offences between April and September 2020 and his driving offences.[69]
[68] Exhibit 1:G2, pages 172-176
[69] Exhibit 8: Respondent’s Supplementary Materials 2
Trend of increasing seriousness
The Tribunal considers that Mr Singh’s criminal and other misconduct can be viewed with equal seriousness throughout the period in question, rather than demonstrating a trend of increasing seriousness.
Paragraph 8.1.1(1)(e)
This paragraph addresses the cumulative effect(s) of Mr Singh’s repeated offending.
The effects of Mr Singh’s offending have also imposed significant costs – financial, emotional, psychological and social - on his wife and his former spouse.
Lastly, Mr Singh’s criminal conduct has imposed significant costs on the policing, judicial and jail systems in terms of money and resources expended.
It is clear from aggregating these perspectives that the cumulative effect of Mr Singh’s repeated offending is substantial, significant in many of the lives of those affected and likely to persist in the long-term.
Paragraph 8.1.1(1)(f)
This paragraph is concerned with whether Mr Singh has provided false or misleading information to the Respondent Minister’s Department, including by not disclosing criminal offending.
In the absence of evidence from Mr Singh or the Respondent that enlivens this paragraph, it is not relevant to any assessment of the nature and seriousness of Mr Singh’s conduct.
Paragraph 8.1.1(1)(g)
This paragraph involves the issue of whether Mr Singh has re-offended since being formally warned about the consequences of further offending in terms of his visa status.
In the absence of evidence from Mr Singh or the Respondent that enlivens this paragraph, it is not relevant to any assessment of the nature and seriousness of Mr Singh’s conduct.
Paragraph 8.1.1(1)(h)
This paragraph requires the Tribunal to have regard, where the offence or conduct was committed in another country, to whether that offence or conduct is classified as an offence in Australia.
There is no reference in either party’s oral or written submissions propounding or mentioning this component of the Direction. The Tribunal finds that this paragraph of the Direction is not relevant to any assessment of the nature and seriousness of Mr Singh’s conduct.
Tribunal’s finding: The nature and seriousness of Mr Singh’s conduct.
The Tribunal has sought above to apply and consider each of the relevant sub-paragraphs appearing in paragraph 8.1.1(1) of the Direction.
With reference to the relevant and applicable paragraphs referred above, the Tribunal finds that while aspects of Mr Singh’s offending may be seen as relatively minor in isolation. The nature of the totality of his repeated and cumulative unlawful conduct, encompassing fraud, theft, speeding and breaching orders, in Australia should be characterised as particularly serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

This aspect of the Direction requires the Tribunal to assess and consider the extent of any impediments that Mr Singh, if removed from Australia to India, will face in establishing himself and maintaining basic living standards taking the specific factors below into account.
Sub-paragraph 9.2(1)(a) – the non-citizen’s age and health
Mr Singh is 28 years old.
In considering his health, the Tribunal has the benefit of Dr Kwok's 30 August report and Ms Chatterjee's 26 August 2023 report.
Dr Kwok’s report notes Mr Singh’s statement that he does not have any major health issues.[104]
[104] Exhibit 5: Doctor Emily Kwok Report, [28]
Dr Kwok’s report states that there is a relationship between Mr Singh’s mental condition and his substance abuse.[105] His mental health symptoms progressively discontinued with his cessation of drug use. Dr Kwok advises that Mr Singh does not currently suffer from a mental condition or illness.[106]
[105] Ibid, [47]
[106] Ibid, [48]
She qualifies this by stating in the next paragraph of her report that:[107]
“Mr Singh does not currently have a mental condition or illness. The consideration will be whether professional help and treatment is available if Mr Singh presents with psychological symptoms in India as a result of his separation from his wife and daughter, and possible poor adjustment in India.”
[107] Ibid, [50]
Dr Kwok subsequently concludes:[108]
“Mental health services remain inadequate in India and it will be extremely difficult for Mr Singh to access treatment there in the event that he is not permitted to remain in Australia.”
[108] Ibid, [61], point 4
On 29 November 2022, the Queensland Corrective Services’ records state:[109]
Prisoner Singh presented with a euthymic mood self-reporting to be feeling "good" regarding his transfer to BTCC. Affect was considered congruent and broadly reactive affect. He denied recent or current depressive symptomology, and nil overt clinical indicators of such were observed during the interview. Nil evidence of formal thought disorder was observed, and no issues were noted with his memory or concentration. There was no psychomotor agitation noted at the time of the interview. He was alert and orientated to time, place and person and was not observed to be responding to perceptual disturbances during the current interview. Prisoner Singh reported no current suicidal ideation or thoughts of self- harm. Prisoner Singh identified no current psychiatric history and stated that he is not currently managed under a psychopharmacological regime. Prisoner Singh denied any concerns with his appetite and stated that his sleep patterns were adequate. Prisoner Singh did not report having a cognitive impairment and did not present with evidence of such. The prisoner denied current withdrawal symptoms and nil evidence of such were observed. There was nil indication of intoxication at the time of the interview.
[109] Exhibit 8: SM4, page 121
The Tribunal concludes, after looking holistically at the available evidence of Mr Singh’s general state of health in the past and currently, that he is healthy and does not appear to suffer from any chronic physical or mental health issue that would currently impede his ability to re-settle and maintain basic living standards in India.
Acknowledging the Federal Court’s decision in Holloway v Minister for Immigration, Citizenship and Multicultural Affairs[110], the Tribunal considers that Mr Singh faces a risk that the stresses and emotional hardships that the Tribunal acknowledges throughout its consideration of impediments he will likely face if removed to India may cause him to consider resuming consuming drugs. Balanced against this risk are the protective factors he has developed in relation to his drug use – his insight into his addiction issues, his acceptance of this problem and his ownership of the problem as well as the lessons from the rehabilitation and psychological therapy he has subsequently experienced. Mr Singh now has tools at his disposal to manage this risk.
[110] Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126
Sub-paragraph 9.2(1)(b) – any substantial language or cultural barriers
The Tribunal considers that Mr Singh, based on his oral testimony and the fact that he lived in India until he was 23 and has subsequently travelled back there, would face few, if any linguistic difficulties if he returned to India.
The Tribunal also considers that Mr Singh is unlikely to face significant cultural issues for the same reason. The Tribunal acknowledges the Applicant’s SFIC’s contentions of emotional distress but observes that these are more personal than cultural.
Given the evidence of Mr Singh’s work history in Australia, his knowledge of Indian languages, his family network and his relative youth. The Tribunal considers that he would be able to overcome any cultural barriers that arise. Especially given the relatively short period (from 30 June 2018) in which he has been in Australia.
Noting that they are more personal factors than cultural ones. The Tribunal also notes that there was no evidence put before it to support claims that Mr Singh would face intra-family disputes or that knowledge of his Australian criminal record would be known broadly and with negative effect amongst potential Indian employers. His Australian employment experiences would also appear to be transferrable to the Indian employment market.
Sub-paragraph 9.2(1)(c) - any social, medical and/or economic support available to them in that country
The Tribunal considers that the rules relating to access to India’s welfare system may prove problematic for Mr Singh in the short-term.
Dr Donnelly submitted that Mr Singh’s criminal record may adversely affect his employment prospects in India. The Tribunal considers that addressing this issue lies in Mr Singh’s hands, as it is up to him what he may disclose of his criminal history or whether he applies for roles that would require checking his Australian criminal history.
Balanced against these factors are his family network, his relative youth and his work experience as it translates to India.[111]
[111] Exhibit 1: G8, page 359 relatively productive life
Addressing the potential for Mr Singh’s mental health to become an impediment. The Tribunal again acknowledges the Federal Court’s decision in Holloway v Minister for Immigration, Citizenship and Multicultural Affairs.[112]
[112] Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126
The Tribunal must consider both Mr Singh’s health as broadly construed, and any social, medical and/or economic support available to him in India if he is returned there. To quote from Justice Colvin’s decision in Holloway:[113]
“Used in the phrase 'age and health', the word health would ordinarily be understood to mean any aspect of a person's physical wellbeing and would include the overall state of a person's fitness and condition, including underlying health issues and ongoing effects of any past injury. Within ordinary parlance, a person's status as having a history of substance abuse, especially where there was evidence from which it may be concluded that there was a real risk of relapse into misuse of substances to such an extent that it would be an impediment to a person being able to establish and maintain basic living standards, is aspect of that person's overall health.”
and
“The error by the Tribunal was to confine the term 'health' to only include currently manifested health issues and difficulties.”[114]
and
“Of course, there may be reasons why an underlying condition which is being managed or which is in remission or for which there is effective treatment may not be likely to manifest as an impediment.”[115]
[113] Op.cit. [12]
[114] Ibid, [13]
[115] Ibid, [15]
The Tribunal acknowledges Mr Singh’s apprehension about the possibility of conflict between himself, his cousin and his former wife if he is returned to India. However, there was not enough evidence before the Tribunal to support this apprehension or that events have not moved on since the break-up of his first marriage and the factors that precipitated this. Nor is there any credible evidence that Mr Singh’s cousin, having apparently achieved his goal and married Mr Singh's former wife, presently has any substantial reason to pursue an animus against Mr Singh.
Tribunal’s analysis and consideration
The Tribunal has considered above the extent of any impediments that Mr Singh, if removed from Australia to India, will face in establishing himself and maintaining basic living standards, considering the specific factors set out in paragraph 9.2(1).
In particular the Tribunal has analysed the interplay between Mr Singh’s health, broadly considered in light of the evidence and Holloway, and the available care and conditions to which he is likely to be exposed if removed to India. The Tribunal considers that, if Mr Singh experiences a repetition of the mental health issues he faced in Australia, then, in addition to the new risk management tools and insights he has developed, treatment is available to him in India as would be available for any other Indian citizen.
Tribunal finding: Other Consideration (b) Extent of impediments if removed.
Having regard to the analysis referrable to each of the three sub-paragraph components of this other consideration (b), the Tribunal finds that Mr Singh would face a level of emotional, practical, financial and medical hardship if he was returned to India.
This hardship would be aggravated by the separation from his wife and daughter in Australia and the likely short-term difficulties he would face in re-establishing himself in India, ameliorated by his family network there.
While there are risks that these difficulties and hardship may affect Mr Singh’s mental health or result in him abusing substances, the Tribunal considers that his relative youth, cultural propinquity to India and support from his family in India are other dynamic protective risk management factors that mitigate and manage these risks.
These risk management factors also counter the high-level evidence offered by Mr Singh about the state of the Indian mental health system. The Tribunal notes that the body of the paper cited in Mr Singh’s SFIC[116] indicates that while the system is worse in rural areas relative to urban areas (and it appears from the G Documents that Mr Singh’s family reside in urban areas), community-based mental health services are gaining prominence and that mental health care is being integrated into the provision of primary healthcare.
[116] Exhibit 2: Applicant’s Statement of Facts, Issues and Contentions, footnotes 12-15, DOI: 10.7759/cureus.42559 “A Comprehensive Analysis of Mental Health Problems in India and the Role of Mental Asylums”
This consideration carries some weight in favour of affirming the delegate’s decision under review.
Other Consideration (c): Impact on victims
Clause 9.3(1) of the Direction states:
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.
Tribunal finding: Other Consideration (c): Impact on victims.
There is no evidence before the Tribunal as to the impact that a decision to set aside the delegate’s decision might have upon any of the victims of the Applicant's offending.
Based on the abovementioned statements, the Tribunal finds that this Other Consideration (c) carries neutral weight.
Other consideration (d) Impact on Australian business interests if Mr Singh cannot remain here.
Paragraph 9.4 (1) compels an assessment of Mr Singh’s employment links to Australia with reference to any impact his removal may have on, “Australian business interests”, qualified by the words that ‘an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia’.
The Applicant’s SFIC contends that[117]:
(a)Mr Singh’s wife, Manpreet Kaur, has a cleaning business. Her recent accident has compromised her ability to work. If Mr Singh is returned to the Australian community, he will work for free for the cleaning business while he seeks work rights. This will ensure the cleaning business can survive while Ms Kaur engages in rehabilitation.
(b)If Mr Singh is not released, there is a real prospect that the impugned cleaning business will need to be closed.
(c)Ms Kaur’s business has cleaning contracts and provides important cleaning services in Australia.
[117] Exhibit 2: Applicant’s Statement of Facts, Issues and Contentions, [147] – [148]
The Respondent in its SFIC notes that Mr Singh is not permitted to work under condition 8101 of his Subclass 030 Bridging C visa.[118] For the purposes of that condition, 'work' is defined as 'an activity that, in Australia, normally attracts remuneration'. The Respondent submits that Mr Singh's proposal to work for free for his wife's cleaning business is not permitted under his current visa.
[118] Exhibit 6: Respondent’s Statement of Facts, Issues and Contentions, [113]
The Respondent submits that the circumstances described are not sufficient to attract the operation of paragraph 9.4, observing that there is no evidence to suggest that the availability of cleaning services in Australia will be materially compromised if Mr Singh's visa is not re-instated. Accordingly, the Respondent contends that this consideration should be given no weight.
There is no evidence before the Tribunal that the Mr Singh’s removal from Australia will compromise the delivery of a major project or an important service in Australia.
While the Tribunal respects and acknowledges the importance and ongoing success of Ms Kaur’s business to Ms Kaur, it does not consider that the business rises to the level of a major project or an important service.
Tribunal finding: Other Consideration (d): the impact on Australian business interests if Mr Singh cannot remain here.
The Tribunal finds that Other Consideration (d) carries neutral weight.
FINDINGS: OTHER CONSIDERATIONS
The Tribunal now summarises the respective weights it has allocated to each of the Other Considerations (specified in the Direction) relevant to the present matter:
Other Consideration (a) – legal consequences of the decision:
·This consideration has neutral weight.
Other Consideration (b) - extent of impediments if removed:
·This consideration carries some weight in favour of affirming the delegate’s decision under review.
Other Consideration (c) - impact on victims:
·This consideration has neutral weight.
Other Consideration (d) – Impacts on Australian business interests:
·This consideration has neutral weight.
ADDITIONAL CONSIDERATIONS
The Direction does not limit the other considerations to those listed in the Direction (paragraph 9(1) of the Direction).[119]
[119] Per Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471.
There are no additional considerations before the Tribunal in this matter.
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, Mr Singh does not pass the character test.
In determining whether there is ‘another reason’ to revoke the cancellation decision, the Tribunal has applied the Direction to this matter’s specific circumstances.
The Tribunal find as follows:
Primary Consideration 1 - protection of the Australian community from criminal or other serious conduct:
·This consideration weighs very heavily in favour of affirming the delegate’s decision to not revoke the cancellation of Mr Singh’s visa.
Primary Consideration 2 - whether the conduct engaged in constituted family violence:
·This consideration weighs in favour of affirming the delegate’s decision to not revoke the cancellation of Mr Singh’s visa.
Primary Consideration 3 - the strength, nature and duration of ties to Australia:
·This consideration carries a substantive but not determinative degree of weight towards setting aside the delegate’s decision to not revoke the cancellation of Mr Singh’s visa.
Primary Consideration 4 - best interests of minor children in Australia affected by the decision:
·This consideration carries substantial weight in favour of setting aside the delegate’s decision to cancel Mr Singh’s visa.
Primary Consideration 5 – expectations of the Australian Community:
·This consideration carries significant weight in favour of affirming the delegate’s decision to not revoke the cancellation of Mr Singh’s visa.
The Tribunal has also set out above the weight attributable to the other considerations and the additional consideration.
A comprehensive, holistic and integrated view of the primary considerations and the other considerations leads this Tribunal to a finding that it is not satisfied of there being another reason to revoke the cancellation of the Applicant’s visa. Accordingly, the Tribunal makes a finding of affirming the delegate’s decision to not revoke the cancellation of Mr Singh’s visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 27 June 2023 to not revoke the cancellation of Mr Singh’s visa.

I certify that the preceding two hundred and seventy five paragraphs (275) paragraphs are a true copy of the reasons for the decision herein of Member D. Cosgrave

..................[SGD].................
Associate
Dated: 19 October 2023

Date of hearing: 4 & 5 September 2023

Counsel for the Applicant: Dr Donnelly of counsel, instructed by Zarifi Lawyers

Counsel  for the Respondent: Ms Ho of Clayton Utz Lawyers
ANNEXURE A – EXHIBIT REGISTER

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

1

G Documents (G1-G12)

G1.     Application for review

G2.     Notification of reviewable decision

G3.     Relevant legislation and policy

G4.     Decision Record

G5.     R’s email to A’s previous solicitor

G6.     Confirmation of receipt of revocation

G7.     A’s email to R attaching evidence

G8.     A’s Email attaching natural justice letter and Personal Circumstances Form

G9.     A’s email asking where to send documents

G10. A’s email confirming where to send documents

G11. A’s Email attaching psychologist’s report

G12. Visa Record

R

Various

11.07.2023

APPLICANT’S DOCUMENTS

2

Applicant’s SFIC

A

07.08.2023

07.08.2023

3

Applicant’s Tender Bundle

1.     Statement – Agyapal Singh

2.     Statement – Manpreet Kaur

3.     Statement – Jitendra Singh

4.     Statement – Narinder Singh

5.     Statement – Surinder Singh (Punjabi Police)

6.     Statement – Surinder Singh (Sikh Temple)

7.     Detention visit photos

8.     Applicant’s Police Clearance Certificate India

9.     Death Certificate – Kuljit Singh

10. Course Completion Certificates

11. Smart Recovery Attendance Confirmation

12. Tenancy Agreement of Applicant

A

Various

07.08.2023

4

Applicant’s Supplementary Bundle

1.     Treating Psychologist Report (Ms Chatterjee)

2.     IHMS Records – Smart Recovery Program Attendee

3.     Letter from Applicant’s GP

4.     Photographs of Applicant’s ex-partner with Applicant’s cousin

5.     Divorce order

6.     Screengrab of missed calls and text messages of Applicant’s ex-wife and Applicant

7.     Medical Certificate of Applicant’s Partner

8.     X-Ray referrals for Applicant’s Partner

9.     Photos of Applicant’s family home

10. DFAT Country Information India

11. Breaking the Stigma: Addressing Mental Health in India

12. India fails to address growing mental health problem

13. Stigma and discrimination as a barrier to mental health service utilisation in India

14. Stigma and Mental Health Problems in India Context

15. Why is mental health stigmatised in India

16. Magnitude of drug dependence in India

17. Public perception towards drug use

18. 64% youths in Gurdaspur district doing drugs

19. Confined in 3 illegal rehab centres, 71 rescued in raids

20. India has the lowest divorce rate in the world: 5 reasons why it’s not a good thing

21. Facing divorce stigma in South Asian communities

A

Various

30.08.2023

5

Doctor Emily Kwok Report

A

30.08.2023

30.08.2023

RESPONDENT’S DOCUMENTS

6

Respondent’s SFIC

R

24.08.2023

24.08.2023

7

Bridging Visa Grant Notification – Agyapal Singh

R

18.11.2022

24.08.2023

8

Respondent’s Supplementary Materials Bundle

SM1: Materials produced under summons by Beenleigh Magistrates Court

SM2: Materials produced under summons by Brisbane Magistrates Court

SM3: Materials produced under summons by Queensland Police Service

SM4: Materials produced under summons by Queensland Corrective Services

R

Various

24.08.2023

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
1	G Documents (G1-G12) G1. Application for review G2. Notification of reviewable decision G3. Relevant legislation and policy G4. Decision Record G5. R’s email to A’s previous solicitor G6. Confirmation of receipt of revocation G7. A’s email to R attaching evidence G8. A’s Email attaching natural justice letter and Personal Circumstances Form G9. A’s email asking where to send documents G10. A’s email confirming where to send documents G11. A’s Email attaching psychologist’s report G12. Visa Record	R	Various	11.07.2023
APPLICANT’S DOCUMENTS
2	Applicant’s SFIC	A	07.08.2023	07.08.2023
3	Applicant’s Tender Bundle 1. Statement – Agyapal Singh 2. Statement – Manpreet Kaur 3. Statement – Jitendra Singh 4. Statement – Narinder Singh 5. Statement – Surinder Singh (Punjabi Police) 6. Statement – Surinder Singh (Sikh Temple) 7. Detention visit photos 8. Applicant’s Police Clearance Certificate India 9. Death Certificate – Kuljit Singh 10. Course Completion Certificates 11. Smart Recovery Attendance Confirmation 12. Tenancy Agreement of Applicant	A	Various	07.08.2023
4	Applicant’s Supplementary Bundle 1. Treating Psychologist Report (Ms Chatterjee) 2. IHMS Records – Smart Recovery Program Attendee 3. Letter from Applicant’s GP 4. Photographs of Applicant’s ex-partner with Applicant’s cousin 5. Divorce order 6. Screengrab of missed calls and text messages of Applicant’s ex-wife and Applicant 7. Medical Certificate of Applicant’s Partner 8. X-Ray referrals for Applicant’s Partner 9. Photos of Applicant’s family home 10. DFAT Country Information India 11. Breaking the Stigma: Addressing Mental Health in India 12. India fails to address growing mental health problem 13. Stigma and discrimination as a barrier to mental health service utilisation in India 14. Stigma and Mental Health Problems in India Context 15. Why is mental health stigmatised in India 16. Magnitude of drug dependence in India 17. Public perception towards drug use 18. 64% youths in Gurdaspur district doing drugs 19. Confined in 3 illegal rehab centres, 71 rescued in raids 20. India has the lowest divorce rate in the world: 5 reasons why it’s not a good thing 21. Facing divorce stigma in South Asian communities	A	Various	30.08.2023
5	Doctor Emily Kwok Report	A	30.08.2023	30.08.2023
RESPONDENT’S DOCUMENTS
6	Respondent’s SFIC	R	24.08.2023	24.08.2023
7	Bridging Visa Grant Notification – Agyapal Singh	R	18.11.2022	24.08.2023
8	Respondent’s Supplementary Materials Bundle SM1: Materials produced under summons by Beenleigh Magistrates Court SM2: Materials produced under summons by Brisbane Magistrates Court SM3: Materials produced under summons by Queensland Police Service SM4: Materials produced under summons by Queensland Corrective Services	R	Various	24.08.2023

[13] See also Transcript, page 7, line 40 - page 8, line 3

[2023] AATA 3365

19 September 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Remedies

Date of hearing:	4 & 5 September 2023
Counsel for the Applicant:	Dr Donnelly of counsel, instructed by Zarifi Lawyers
Counsel for the Respondent:	Ms Ho of Clayton Utz Lawyers