Singh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 216
•20 January 2022
Singh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 216 (20 January 2022)
Division:GENERAL DIVISION
File Number(s): 2021/8094
Re:Harpreet Singh
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member M O'Loughlin
Date:20 January 2022
Date of written reasons: 14 February 2022
Place:Adelaide
The Reviewable Decision to cancel the Applicant’s visa is set aside and substituted.
.................................[sgnd].......................................
Member M O'Loughlin
CATCHWORDS
MIGRATION – decision of delegate of Minister to cancel Class VB Subclass 887 Skilled Regional (Residence) – where Applicant does not pass the character test – Applicant has substantial criminal record – Best interests of minor children – consideration of Ministerial Direction No. 90 – decision under review set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) – ss 500(1)(b), s 501(2), 501(6)(a), 501(7), 501(7)(c), 501CA
CASES
Brown v Minister for Immigration and Citizenship [2010] FCAFC 33
SECONDARY MATERIALS
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Member M O'Loughlin
14 February 2022
The applicant committed a serious assault in August 2012. His prison sentence for that crime was suspended on the basis that he had not committed any other offences and the court hoped he would avoid further crimes. He has not committed any crimes in the 9 ½ years since. The Tribunal gives substantial weight to the length of time that he has avoided criminal behaviour and remits the decision to cancel his visa.
The hearing proceeded by way of video link. Although there were some problems from time to time with audio and video quality, the Tribunal is satisfied that there was no prejudice to either party by reason of such problems.
Neither party complained that the hearing was compromised by being held by video link.
Introduction
The applicant is a citizen of India.
On 20 October 2021 a delegate of the respondent (“the Minister”) decided to cancel his class VB Subclass 887 Skilled Regional (Residence) visa (“the visa”). That decision was made in exercise of the discretion afforded under section 501(2) of the Migration Act (“the Act”).
Pursuant to section 500(1)(b) of the Act, the applicant has applied to the Tribunal for review of the decision to cancel his visa.
The hearing before the Tribunal took place on the 12th and 13th of January 2022 and both parties were represented.
Broadly speaking, the matters for consideration by the Tribunal are whether the respondent’s power to cancel the applicant’s visa is enlivened on the facts of this matter, and if so whether that power should be used.
Character Test
Section 501(2) of the Act relevantly provides that the Minister may cancel a visa if the Minister reasonably suspects that the person does not pass the character test.
Section 501(6)(a) provides that a person does not pass the character test if the person has a “substantial criminal record” as defined in s 501(7).
Section 501(7)(c) provides that a person has a substantial criminal record if that person has been sentenced to a term of imprisonment of 12 months or more.
On 16 May 2013 the applicant was sentenced to a term of imprisonment of 2 years, five months in the District Court of South Australia. That term was suspended on a 3-year bond.
The respondent has referred the Tribunal to the decision of the Federal Court of Australia – Full Court in Brown v Minister for Immigration and Citizenship [2010] FCAFC 33 and the Tribunal agrees that that decision supports the contention that a term of imprisonment that is suspended remains relevantly a term of imprisonment.
In any event, the applicant agreed at the outset of the hearing that he does not pass the character test and the Tribunal so finds.
On that basis the respondent’s power to cancel the applicant’s visa under s 501(2) is enlivened.
A delegate of the Respondent exercised the discretion to cancel the applicant’s Class VB Subclass 887 Skilled Regional (Residence) visa on 20 October 2021.
Factual Background
The applicant’s background can be drawn from the Statement of Facts, Issues and Contentions filed on his behalf in this matter[1], submissions made by his then representatives in December 2014[2], and his statement of 10 January 2022[3].
[1] Exhibit A1
[2] Exhibit R2 page 39 and following.
[3] Exhibit A8
It is not controversial that the applicant was born on 6 December 1982 and was therefore 39 years old that the time of the hearing.
He was born and grew up in the Punjab region of India.
He was married in September 2007 and came to Australia with his wife on 21 July 2008 when he was about 26 years old.
He told the Tribunal that when they came they were hoping to stay in Australia.
They have a daughter, Child A, who was born in late September 2008.
The applicant started work at a meat processing company in regional South Australia. He commuted to that work while his wife and the baby stayed in Adelaide.
Since then, he has generally continued to work in the meat processing industry with occasional breaks, usually when he has visited India.
He gave evidence that he and his wife separated in November 2011.
His representatives’ submissions[4] say that the relationship deteriorated during 2011 and that the couple would constantly argue.
[4] letter Migration Solutions 10 December 2014 to the national character considerations Centre, exhibit R2 page 39.
The applicant’s wife left in November 2011 taking their child.
The applicant said in his evidence that his wife would not tell him where she and his daughter were living.
He said that he returned to India where he stayed until about April 2012.
He returned to Australia and at some point became aware that his wife and daughter had gone to India in about June 2012.
It is suggested in the submissions that while he was in India he spoke to his wife’s father and brother who urged him to approach his wife and try to work through their issues. Apparently they told him that his wife was living with her employers, Mr Y and his wife, Mrs X.
On the evening of 9 August 2012, the day that the applicant’s wife and daughter returned from India, the applicant went to their home (being the home of Mr Y and Mrs X who were to become the victims of the applicant’s offending).
The Offending
The relevant events of that evening are set out in His Honour Judge Barrett’s sentencing remarks[5] . The Tribunal set out a summary below.
[5] exhibit R2, G documents, page 30 and following.
The applicant went to the house about 5.30 in the afternoon. He walked into the house unannounced and surprised his wife and the victims.
He slapped Mrs X in the face without provocation and, when her husband came to help, the applicant assaulted him too.
The applicant punched Mr Y and pushed him into a glass door which broke.
The applicant got on top of Mr Y, punched him and threatened him with a piece of glass.
The applicant had a key in his hand which exacerbated the punching.
Mrs X came to help her husband and the applicant punched her in the stomach.
The applicant’s wife rang the police.
The applicant left the house, but before he did so he threatened to come back and do it again.
The applicant was located by police while he was on foot in the area. He falsely told them that his wife had initiated the assault.
The female victim suffered a fractured right ring finger, cut to her right middle finger and swelling to her left knee and right ankle.
Mr Y suffered swelling to the right side of his face, a small laceration to the top of his head, laceration on his neck and a laceration to his left wrist. He also had a small laceration to his right lower abdomen from which a doctor later removed a small piece of glass.
Judge Barrett also noted that the applicant was slightly injured in the fight.
His Honour sentenced the applicant on the basis that he went to the victim’s home uninvited and that he was the aggressor.
He observed that the assaults took place in front of the applicant’s then 4 year old daughter.
He found the applicant lied to the police and to the court and, despite his expressions of regret to the court, he had done nothing to express his remorse to the victims by the time of sentencing on 16 May 2013.
The applicant was charged with the offences of assault causing harm and aggravated causing harm with intent to cause harm.
His Honour noted that the maximum penalties for those offences are 3 years imprisonment and 13 years imprisonment respectively.
He considered a sentence of 3 years imprisonment to be appropriate for both offences, but reduced that to imprisonment for 2 years and 5 months to reflect the applicant’s guilty pleas.
In relation to suspension of the sentence he notes that the applicant’s violence was unprovoked, that the victims were innocent, that he had shown no real remorse, that he had lied to the court, and that he had a history of controlling behaviour towards his wife although no convictions for that behaviour.
His Honour noted that, on the other hand, the applicant had no prior convictions and it may be that the experience of coming to court and being sentenced for his violence might stop the applicant from offending again. He found that that consideration, just, provided good reason to suspend the sentence and so the applicant entered a bond.
Other Relevant Matters
The respondent has asked the Tribunal to have regard to information obtained from South Australian Police which was included in volume 1 of the respondent’s tender bundle[6].
[6] exhibit R3
At page 23 of exhibit R3 are notes that were taken by a police officer who had been contacted by the applicant’s then wife on 3 November 2011, apparently the day after the applicant and his wife separated.
She reported that when her employer was taking her home at 3 o’clock that morning, she had seen the applicant with one of his friends who was driving a taxi. They followed her for about 10 to 15 minutes.
She said that when they got near to the police station the taxi stopped following them. Later that day she received numerous phone calls from the applicant but did not answer them.
The applicant agreed on cross examination that on that occasion he and his friend had followed his ex-wife.
The applicant was asked about other allegations of controlling and aggressive behaviour which he denied.
For the purposes of this decision the Tribunal finds that the applicant had a history of controlling behaviour towards his wife, although no prior convictions. These findings reflect those of expressed in the sentencing remarks[7].
[7]G documents, exhibit R2, page 32 2nd paragraph,
The applicant has submitted that he has attended courses and engaged with a psychologist asks Tribunal to accept that as evidence that he has acknowledged his inappropriate behaviour and attempted to address it.
It appears that the courses and the psychological consultations that the applicant has undergone were in the context of Family Court proceedings. The Tribunal is not satisfied that the applicant has acknowledged or addressed his criminal behaviour through them.
The applicant has submitted that Community Service that he completed should count in his favour in this application. The community service to which he refers appears to have been imposed as part of his criminal proceedings and was completed under the compulsion of court orders.
Time Elapsed Since Offending
The relevant offences were committed in August 2011. The applicant entered a plea of guilty and on 16 May 2013 he was sentenced by Judge Barrett in the District Court of South Australia.
By letter dated 16 October 2014 the Department of Immigration and Border Protection notified the applicant that it was considering cancelling the applicant’s visa.
The applicant was sent further information in relation to the possible visa cancellation on 24 October 2014. The applicant was asked to make a response, if any, no later than 25 November 2014.
The applicant’s then representatives provided submissions dated 10 December 2014.
The applicant provided a completed “personal details form” on 27 January 2015.
The applicant’s representatives apparently made occasional contact with the Department and the Tribunal has seen emails dated 28th of July 2015 and 25 October 2016[8].
[8] exhibit R2, G documents, pages 118 and 120
The next action by the Department appears to have taken place in February 2021 at which time the department sent the applicant’s representative an email seeking updated information and allowing 14 days with which to provide it[9].
[9] exhibit R2, G documents, page 153
Ultimately a delegate of the respondent decided to cancel the applicant’s visa in a decision dated 20th of October 2021.
It is not clear why this decision was delayed for such a long time.
The applicant complains that the delay has compromised the applicant’s ability to make this application and further disadvantaged the applicant as his application is to be considered under Direction No. 90 rather than the Direction that was in place at the time of the mandatory cancellation of his visa.
The applicant submits that he is disadvantaged because the earlier Direction was less stringent in some ways.
Although that may be true, the Tribunal observes that the delay has greatly benefitted the applicant who has been able to demonstrate that he is not a repeat offender over a far longer period than would usually be available in such an application.
Statutory Framework
In view of the Tribunal’s finding that the applicant does not pass the character test, the Tribunal’s remaining task is to determine whether the discretion to cancel the applicant’s visa should be exercised.
In doing so the Tribunal must apply Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”).
Paragraph 5.2 of the Direction provides a framework for decision makers. It emphasises that the grant of an Australian visa is a privilege and is made in the expectation that a visa‑holder will be law abiding and not cause harm to individuals or the Australian community.[10]
[10] See Direction, paragraph 5.2(1).
It also makes clear that non-citizens who engage in criminal conduct should forfeit the privilege of staying in Australia and that Australia has a low tolerance of criminal conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time.[11]
[11] Ibid, paragraph 5.2(2).
The Direction sets out ‘Primary’ and Other’ considerations relevant to the discretion to cancel a visa.
The Direction provides that primary considerations should generally be given greater weight and that one or more primary considerations may outweigh other primary considerations.[12]
PRIMARY CONSIDERATIONS
[12] See commentary of Colvin J at [23] in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594. See also Direction, paragraph 7.
Subparagraph 8.1 – Protection of the Australian Community
The Direction relevantly provides that decision-makers should keep in mind the protection of the Australian community from harm and have particular regard to the principle that entering or remaining in Australia is a privilege that is conferred on non-citizens in the expectation that they will be law abiding and will not cause or threaten harm to individuals and the Australian community.[13]
[13] Direction, paragraph 8.1(1).
The Direction also provides that decision-makers should give consideration to:
·the nature and seriousness of the non-citizen’s conduct to date;[14] and
·the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.[15]
[14] Ibid, paragraph 8.1.1.
[15] Ibid, paragraph 8.1.2.
The Direction, at sub paragraphs 8.1.1(1)(a) and (b) sets out some examples of conduct that may be considered very serious.
Sub paragraph 8.1.1(1)(a) specifies violent and or sexual crimes, crimes of a violent nature against women or children, regardless of the sentence imposed and acts of family violence, regardless of whether there is a conviction or a sentence imposed.
The offences of which the applicant was convicted were violent crimes and one of the victims was a woman who suffered an injury by reason of the applicant’s assault.
Further, the crimes were committed in the presence of the applicant’s estranged wife and his child and would undoubtedly have been very frightening. That being the case, they satisfy the definition of “family violence” for the purposes of the Direction[16].
[16] Ibid, paragraph 4(1)
The Tribunal therefore finds that the offences of which the applicant was convicted must be viewed as very serious.
Relevant to this matter, sub paragraph 8.1.1(b) specifies crimes committed against government representatives or officials in the performance of their duties. There is no evidence of any such crimes in this matter.
At subparagraph 8.1.1(c), the Tribunal is directed to consider the sentence imposed by the court for a crime or crimes.
The sentence of imprisonment, albeit suspended, suggests that the crimes must be seen as serious.
At subparagraph 8.1.1(d), the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness is to be considered. The respondent submits that applicant’s offending has escalated in seriousness.
The applicant has only been convicted in relation to offending behaviour that took place on one occasion. There is no evidence of frequent offending nor of a trend in offending.
Sub paragraph 8.1.1(1)(e) directs the Tribunal’s consideration to the cumulative effect of the applicant’s repeated offending. This factor is not relevant.
At subparagraph 8.1.1(1)(f) the Tribunal must consider whether the non-citizen has provided false or misleading information to the Department. There is no evidence that he has.
At subparagraph 8.1.1(1)(g) the Tribunal is directed to consider whether the non-citizen has re-offended after being formally warned or otherwise made aware in writing about the consequences of further offending in terms of the non-citizen’s migration status.
There is no evidence of any such warning and the Tribunal is satisfied that none was given. In any event there was no further offending by the applicant.
Having balanced the considerations referred to in the Direction at paragraph 8.1.1(1) the Tribunal finds that the applicant’s criminal conduct is very serious and must weigh in favour of cancellation of the applicant’s visa. Given that the offending is restricted to behaviour on, effectively, a single occasion, the Tribunal accords this consideration moderate rather than heavy weight.
At subparagraph 8.1.2, the Direction requires the Tribunal to consider the risk to the Australian community should the applicant commit further offences or engage in other serious conduct.
Subparagraph 8.1.2(1) the Tribunal is directed to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. The subparagraph goes on to effectively say that some conduct and the resultant harm are so serious that any risk that it may be repeated is unacceptable.
Subparagraph (2) sets out considerations that the Tribunal must take into account in assessing the risk posed by the applicant.
8.1.2(a) directs the Tribunal to consider the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct.
The Tribunal has regard to the applicant’s convictions for assault. Clearly if such criminal conduct or similar serious conduct is repeated the harm to individuals and to the Australian community is likely to be serious.
At 8.1.2(2)(b) the Tribunal is directed to assess the likelihood of the applicant engaging in further criminal or other serious conduct.
In so doing, subparagraph 8.1.2(2)(b)(i) directs the Tribunal to take into account information and evidence on the risk of the non-citizen re-offending.
The applicant urges the Tribunal to have regard to certain courses that he has undertaken as evidence that the likelihood of him re-offending is low. The Tribunal observes that these courses appear to have been arranged as part of an effort by the applicant to obtain orders to promote access to his daughter.
The Tribunal is not satisfied that they constitute reliable ‘information and evidence’ on the risk of the applicant re-offending in this matter.
On the other hand, the Tribunal is satisfied that the applicant has shown that he is at a low risk of reoffending simply by not reoffending over a long period of time. In this regard the length of time between the applicant’s conviction and the hearing of this application is a significant benefit to the applicant.
Subparagraph 8.1.2(2)(b)(ii) requires the Tribunal to take into account evidence of rehabilitation achieved by the time of the decision giving weight to time spent in the community since their most recent offence.
The applicant has spent about 9 ½ years in the community since his last offence. Some of that time was under the threat of incarceration represented by a suspended sentence but the Tribunal is satisfied that substantial weight must be given to the applicant’s time in the community as evidence of his rehabilitation.
The consideration directed by 8.1.2(2)(c) is not relevant to this matter.
On balance, in relation to the primary consideration of the protection of the Australian community, the Tribunal finds that this consideration weighs slightly in favour of cancellation of the applicant’s visa.
Subparagraph 8.2 – Family Violence Committed by the Non-Citizen
The second primary consideration is set out at paragraph 8.2 of the Direction. It asserts that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. It further states that the Government’s concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.
Paragraph 8.2.(2)(a) provides that this primary consideration is relevant in circumstances where a non-citizen has had charges proven against him that involve family violence.
Subparagraph 8.2(2)(b) provides that this primary consideration is also relevant where there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence and the non-citizen has been afforded procedural fairness.
The Tribunal finds that the offending behaviour that gave rise to the applicant’s convictions represent relevant family violence.
The Tribunal further observes that the applicant conceded that over 6 months before that offending behaviour he had followed his ex-wife in a taxi in the early hours of the morning, which also falls within the definition of family violence for the purposes of this application.
The Tribunal finds that this primary consideration is relevant to this application and must count in favour of the exercise of the discretion to cancel the applicant’s visa.
Given the age of the offences and the applicant’s apparent rehabilitation, the Tribunal accords this consideration only moderate weight.
Subparagraph 8.3 – Best Interests of Minor Children in Australia affected by the Decision
The Tribunal is directed by this paragraph to make a determination about whether cancellation, refusal or non-revocation of a mandatory cancellation of a visa is in the best interests of a child affected by the decision.
It relates to children who are under 18 years old at the time of the decision.
It requires that where there are two or more relevant children the best interests of each child should be given individual consideration to the extent that their interests may differ.
Subparagraph 8.3(4) sets out factors that must be considered by the Tribunal where the best interests of the child are being considered.
Subparagraph 8.3(4)(a) requires consideration of the nature and duration of the relationship between the child and the non-citizen. It directs that less weight should generally be given where the relationship is non-parental and/or there is no existing relationship and/or there have been long periods of absence or limited meaningful contact.
The applicant has a daughter, Child A, who is a minor.
The applicant’s evidence is essentially that he has tried to re-establish a relationship and parental role in respect of her but has not been able to.
Subparagraph 8.3(4)9b) directs the Tribunal’s consideration to the extent to which the applicant is likely to play a positive parental role in the future taking into account the length of time until the child turns 18 and including any Court orders relating to parental access and care arrangements.
The applicant expresses a keen desire to play a parental role in Child A’s future but acknowledges that there is much work to be done. There is no evidence that Child A is keen to pursue such a relationship. The Tribunal finds that the applicant’s hopes in this regard are no more than that and are speculative but does not discount the possibility that the applicant will play a positive parental role.
The evidence before the Tribunal suggests that the Court orders relating to access contemplate allowing the applicant access if Child A so chooses. The evidence further suggests that Child A is about 13 ½ years old.
Subparagraph 8.3(4)(c) directs the Tribunal’s contemplation to the impact of the applicant’s past conduct and the likely impact of his future conduct and whether that has or will have a negative impact on the child.
There is no evidence that the applicant’s past or future conduct will have a negative impact on Child A although it would be far from surprising if it did.
Subparagraph 8.3(4)(d) directs the Tribunal to consider the likely effect that separation from the applicant would have on the child, taking into account the child’s or the non-citizen’s ability to maintain contact in other ways.
There is no evidence of a current relationship between the applicant and Child A. Removal of the applicant would undoubtedly hamper the applicant’s efforts to establish contact.
Subparagraph 8.3(4)(e) directs the Tribunal to consider whether there are other persons who already fulfil a parental role in relation to the child.
The parental role in relation to Child A is apparently fulfilled by her mother.
Subparagraph 8.3(4) (f) directs the Tribunal to consider any known views of the child.
There is no evidence about the views of Child A and this consideration is not relevant.
Subparagraph 8.3(4)(g) directs the Tribunal to consider evidence that the child has been, or is, at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way whether physically, sexually or mentally.
Child A was apparently exposed to family violence on the occasion of the offences of which the applicant was convicted. There is no evidence of other relevant behaviour by the applicant.
Subparagraph 8.3(4)(h) directs the Tribunal to consider evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
There is no evidence of any such trauma and this consideration is not relevant to this application.
Having weighed all the considerations to which the Tribunal is directed and having considered the best interests of Child A in making its determination, the Tribunal finds that although the establishment of a parental relationship between the applicant and Child A is speculative, this consideration must count against cancellation of the applicant’s visa.
In all the circumstances the Tribunal accords it a little weight.
Subparagraph 8.4 – Expectations of the Australian Community
This primary consideration acknowledges the expectation that the Australian community expects non-citizens to obey Australian laws while in Australia. It further provides that, where a non-citizen has engaged in serious conduct in breach of this expectation, or there is an unacceptable risk that they may do so, the Australian community expects the Government not to allow such a non-citizen to enter or remain in Australia.
It further provides that the nature of character concerns or of offences may be such that the person should not be granted or allowed to continue to hold a visa.
The provision goes on to specify relevant conduct at subparagraph 8.4(2).
Subparagraph 8.4(2)(a) specifies acts of family violence.
The Tribunal has found that the applicant is guilty of family violence.
Subparagraph 8.4(2)(b) specifies causing a person to enter into, or otherwise be party, to a forced marriage.
There is no evidence that this is a relevant consideration in this matter.
Subparagraph 8.4(2)(c) specifies the commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled. The subparagraph provides that “serious crimes” include crimes of a violent or sexual nature, as well as other serious crimes against vulnerable persons such as the elderly in the form of fraud, extortion, financial abuse/material exploitation or neglect.
As discussed above, the applicant’s offending included an assault on a woman that caused her injury.
Subparagraph 8.4(2)(d) specifies the commission of crimes against government representatives or officials due to the position that they hold or in the performance of their duties.
There is no evidence of any relevant offending by the applicant
Subparagraph 8.4(2)(e) specifies involvement or reasonable suspicion of involvement with human trafficking or crimes that are of serious international concern.
This class of crimes is not relevant to this application.
Subparagraph 8.4(2)(f) specifies worker exploitation.
There is no evidence that this consideration is relevant to this application.
Having weighed up the considerations to which it has been directed the Tribunal gives weight to the applicant’s convictions for violence but because of the age of those crimes and the applicant’s apparent rehabilitation the Tribunal accords it little weight in favour of cancelling the applicant’s visa.
OTHER CONSIDERATIONS
At paragraph 9, Direction No. 90 obliges the Tribunal to take into account other considerations where they are relevant.
Subparagraph 9.1 – International Non-refoulment Obligations
There is no evidence that this consideration is relevant to this application and the Tribunal accords it no weight.
Subparagraph 9.2 – Extent of Impediments if Removed
Subparagraph 9.2 directs the Tribunal to consider the extent of impediments that the non-citizen may face if removed to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)The non-citizen’s age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.
The applicant is relatively young and there is no reason he could not work in India.
There is no evidence of substantial language or cultural barriers.
However, the applicant has been in Australia for many years and is well established here. There is no doubt that he would face difficulties re-establishing himself there and there must be some doubt that the work he has done in Australia is directly transferable to India.
The Tribunal finds that this consideration weighs against cancellation of the applicant’s visa and accords it some weight.
Subparagraph 9.3 – Impact on Victims
Subparagraph 9.3 directs the Tribunal to consider the impact of its decision on members of the Australian community including victims of the applicant’s criminal behaviour, family members of the victim or victims where information about this is available and the non-citizen has been afforded procedural fairness in relation to such evidence.
There is no relevant material before the Tribunal and this consideration is accorded no weight.
Subparagraph 9.4 – Links to the Australian Community
Subparagraph 9.4 requires the Tribunal to have regard to the strength, nature, and duration of ties to Australia. The Tribunal is required to do so having regard to paragraphs 9.4.1 and 9.4.2.
Subparagraph 9.4.1 relates to the strength, nature and duration of the applicant’s ties to Australia.
Subparagraph 9.4.1(1) directs the Tribunal to consider any impact of the decision on the non-citizen’s immediate family members in Australia where they are Australian citizens, permanent residents or have a right to remain in Australia indefinitely.
The applicant has two immediate family members in Australia, his daughter Child A and his brother. The Tribunal accepts that they both have a right to remain in Australia indefinitely.
Although there is no current relevant relationship with Child A, the applicant does hold hope of establishing one with her and the Tribunal accepts that there must be some chance of that happening.
There is also evidence that the applicant has a fairly close relationship with his brother, and they have invested in property together. The applicant’s brother may not have been able to do that without the applicant’s help.
Subparagraph 9.4.1(2) directs the Tribunal to consider the strength, nature and duration of any other ties that the applicant has to the Australian community.
At 9.4.1(2)(a) it requires the Tribunal, in doing so, to have regard to the length of time that the applicant has resided in Australia, including whether the non-citizen arrived as a child. Subparagraph 9.4.1(2)(i) provides that less weight should be given to that consideration where the applicant began offending soon after arriving in Australia. Subparagraph 9.4.1(2)(ii) provides that more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
The applicant arrived in Australia 13 years ago. Although he was not a child, the length of his residence is long enough to count against exercising the discretion to cancel his visa.
The applicant’s positive contribution to the Australian community is relatively modest although the contribution he has made by working, paying tax and contributing to his social and religious network count against cancelling his visa.
Subparagraph 9.4.1(2)(b) directs the Tribunal to have regard to the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Tribunal is satisfied that the applicant has established sufficient social links with Australian citizens and that such links are of sufficient duration that this factor must weigh against cancelling the applicant’s visa.
The Tribunal has weighed the evidence relating to the applicant’s links to the Australian community and had regard to the directions set out in paragraph 9.4(1) of the Direction. The Tribunal is satisfied that this consideration weighs against exercising the discretion to cancel the applicant’s visa.
Subparagraph 9.4.2 – Impact on Australian business interests
Subparagraph 9.4.2 requires the Tribunal to consider any impact on Australian business interests if the applicant is not allowed to remain in Australia.
The provision relevantly stipulates that an employment link will generally only be given weight where the decision of the Tribunal would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no evidence of such impact in this matter and the Tribunal is not satisfied that the applicant’s removal will have any relevant impact on Australian business interests.
The Tribunal has weighed the evidence in this matter and in so doing has had regard to the factors to which it has been directed by subparagraph 9.4.
The Tribunal is satisfied that the applicant’s links to the Australian community are such that this consideration warrants some weight against the exercise of the discretion to cancel his visa.
Conclusions
The Tribunal finds that Primary Consideration 1 – Protection of the Australian Community weighs slightly in favour of the cancellation of the applicant’s visa.
The Tribunal finds that Primary Consideration 2 - Family Violence Committed by the Non-Citizen weighs moderately in favour of the cancellation of the applicant’s visa.
The Tribunal finds that Primary Consideration 3 – Best interests of minor children in Australia bears a little weight against the cancellation of the applicant’s visa.
The Tribunal finds that Primary Consideration 4 – Expectations of the Australian Community bears a little weight in favour of the cancellation of the applicant’s visa.
Of the relevant Other Considerations contemplated by the Direction, the Tribunal finds that Other Consideration 1 – Extent of impediments to the applicant if he is removed is of some weight against the cancellation of the applicant’s visa.
The Tribunal finds that Other Consideration 4 – the applicant’s Links to the Australian Community weighs against the cancellation of the applicant’s visa.
The Tribunal notes that in weighing the considerations, one or more primary considerations may outweigh other primary considerations.
Having weighed the considerations together and considered all of the evidence to which it has been directed, the Tribunal finds that the applicant’s links to the Australian community, and to a lesser degree, the best interests of the applicant’s minor daughter, Child A, and the impediments to the applicant should he be removed to India are sufficient to outweigh those considerations that weigh in favour of the exercise of the discretion to cancel the applicant’s visa.
DECISION
The decision under review is set aside and substituted with a decision not to exercise the discretion under section 501(2) to cancel the applicant’s visa.
I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for the decision herein of Member M O’Loughlin
.................................[sgnd]....................................
Legal Administrative Assistant
Dated: 14 February 2022
Date of hearing: 13 & 14 January 2022 Solicitor for the Applicant:
David Moen
Edge Law
Solicitor for the Respondent: Sam Cummings
Sparke Helmore
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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