Singh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2022] AATA 264

Singh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 264 (3 January 2022)
Division:GENERAL DIVISION
File Number: 2021/7553
Re:Navdeep Singh
APPLICANT

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

REASONS FOR DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date of Decision: 3 January 2022
Date of Written Reasons: 4 January 2022
Place:Melbourne

On 3 January 2022, the Tribunal affirmed the reviewable decision. These are the written reasons for that decision.
.................. ...[sgd]...................................................
Senior Member A. Nikolic AM CSC
CATCHWORDS
MIGRATION
– visa refusal Skilled (Provisional) (Class VC) Visa – citizen of India – failure to pass good character test – exercise of discretion – non-refoulement obligations – COVID-19 – persistent inconsistencies in account of offending – false information in Statutory Declaration – Ministerial Direction No. 90 applied – reviewable decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Crimes Act 1958 (Vic)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
Migration Regulations 1994 (Cth)
Sentencing Act 1991 (Vic)
Statutory Declarations Act 1959 (Cth)
CASES
Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65
Ali v Minister for Home Affairs [2020] FCAFC 109
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
AssistantMinister for Immigration and Border Protection v Splendido (2019) 271 FCR 595
Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 1) (2015) 331 ALR 68
Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130
Australian Securities and Investments Commission v PTLZ [2008] FCAFC 164
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
C7A/2017 v Minister for Immigration and Border Protection (No 2) [2020] FCAFC 70
Chen v Migration Agents Registration Authority (No 1) [2016] FCA 649
DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91
DOB18 v Minister for Home Affairs [2018] FCA 1523
FYBR v Minister for Home Affairs [2020] HCATrans 056
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Hughes v The Queen (2017) 263 CLR 338
Ibrahim v Minister for Home Affairs [2019] FCAFC 89
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465
Lee v Minister for Immigration and Border Protection [2019] AATA 84
Minister for Home Affairs v Omar [2019] 373 ALR 569
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567; 191 CLR 559
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358
Minister for Immigration and Citizenship v SZJSS [2010] 243 CLR 164
Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033
MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35
Murphy v Minister for Home Affairs [2018] FCA 1924
Negri v Secretary, Department of Social Services [2016] FCA 879
Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219
PQSM v Minister for Home Affairs [2019] FCA 1540
Re Tennant and Secretary, Department of Social Services (2014) 140 ALD 677
RJFB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1284
Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10
Say v Administrative Appeals Tribunal [2020] FCA 1489
Singh and Minister for Immigration and Border Protection [2016] AATA 1040
Singh (Migration) [2019] AATA 1069
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Swannick v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCAFC 81
SZRSN v Minister for Immigration and Citizenship [2013] FCA 751
Vural v Minister for Home Affairs [2020] FCA 667
YNQY v Minister for immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Centre for Monitoring Indian Economy, Unemployment Rate in India (Web Page) <Unemployment (cmie.com)>
Direction No 75 – Refusal of Protection visas Relying on Section 36(1C) and Section 36(2C)(b)
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Department of Foreign Affairs and Trade, DFAT Country Information Report India, Report (10 December 2020)
Hannah Ellis-Petersen, ‘India’s Covid vaccine rollout hit by hesitancy and supply snags’ The Guardian (online, 13 July 2021) <India’s Covid vaccine rollout hit by hesitancy and supply snags | India | The Guardian>
Himanshu Arora, ‘The duality in India’s economic recovery’ The Hindu Business Line (online, 23 November 2021) <The duality in India’s economic recovery - The Hindu BusinessLine>
Press Information Bureau Government of India, Cabinet approves “India COVID 19 Emergency Response and Health Systems Preparedness Package: Phase II” at a cost of Rs 23, 123 crore (Web Page, 8 July 2021) <Press Information Bureau (pib.gov.in)>
Reuters COVID-19 Tracker, India (Web Page) < India: the latest coronavirus counts, charts and maps (reuters.com)>
World Health Organization, Emergency Dashboard-India (Web Page) < India: WHO Coronavirus Disease (COVID-19) Dashboard With Vaccination Data | WHO Coronavirus (COVID-19) Dashboard With Vaccination Data>
World Health Organisation, Novel Coronavirus Disease Situation update Report 95 (Web Page, 24 November 2021) <india-situation-report-95.pdf (who.int)>
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
4 January 2022
INTRODUCTION

The Applicant has asked the Tribunal to review the Respondent’s decision to refuse his application for a Skilled (Provisional) (Class VC) Visa (the visa).[1]
[1] Exhibit R1, 17.
The hearing was held in Melbourne on 15 and 16 December 2021, with parties appearing by audio-visual link. The Applicant was represented by Mr Dushan Nikolic,[2] a solicitor from Carina Ford Lawyers. The Minister was represented by Ms Samantha Liddy, a solicitor from Sparke Helmore Lawyers. The Applicant and witnesses were assisted by an interpreter in the Punjabi language.
[2] The Tribunal, as presently constituted, has the same surname as Mr Nikolic but no family or other association.
For the following reasons, the Tribunal affirms the reviewable decision.
CONFIDENTIALITY REQUEST
Prior to the hearing, the Applicant requested a confidentiality order be applied under s 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), to prevent the publishing of his name.[3] He submitted this was appropriate because:
(a)No conviction was recorded against him following a finding of guilt for Sexual assault in 2018;
(b)Section 8(2) of the Sentencing Act 1991 (Vic) provides that ‘a finding of guilt without the recording of a conviction must not be taken to be a conviction for any purpose’;
(c)The Applicant would suffer prejudice if the non-conviction was disclosed in the Tribunal’s published reasons without redaction.
[3] Applicant’s Statement of Facts Issues and Contentions (ASFIC) dated 22 November 2021, 11 [76].
The Tribunal held an interlocutory hearing on 3 December 2021 to discuss the confidentiality application. The Respondent made the following submissions:
There is a presumption that Tribunal hearings will be public, including the parties’ names and evidence in the proceedings (ASIC v PTLZ [2008] FCAFC 164 at [39]);
That a conviction was not recorded is unlikely to displace that presumption (or support an application for an anonym), because the mere apprehension of reputational harm will not be a persuasive basis for an order for confidentiality (Lee v Minister for Immigration and Border Protection [2019] AATA 84 at [18]);
The prejudice of which the applicant speaks at [76] of his SOFIC is born of his offending, not of the necessity for open justice, and s 35 of the Act;
The applicant has made non-refoulment claims in his SOFIC (which were not before the delegate), and those claims may be a basis for a claim for an anonym, however the respondent’s position is that those claims are not made out and in any event, he has not applied for a protection visa, such that s 91X (sic) of the Migration Act 1958 does not assist him. [4]
[4] Respondent’s emailed submissions dated 3 December 2021.
In oral submissions during the interlocutory hearing, the Applicant proposed that an alternative to a confidentiality order was for the Tribunal not to disclose certain details about his offending.
After hearing from both parties, the Tribunal refused the confidentiality request and gave oral reasons. Written reasons now follow, consistent with judicial authority that states:[5]
...As long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).
[5] Negri v Secretary, Department of Social Services [2016] FCA 879, [27] (Bromberg J).
The Tribunal’s review function normally involves a public hearing, public availability of evidence, and open publication of decisions and reasons.[6] With certain statutory exceptions, such as s 501K of the Migration Act 1958 (Cth) (the Act), decisions are published for transparency and public awareness. The power under s 35 of the AAT Act is used sparingly because strong reasons are necessary to depart from the open justice principle.[7] The Tribunal respectfully adopts the reasoning of Emerita Professor Robin Creyke AO who, as a Senior Member of this Tribunal in 2014, stated:[8]
…The Tribunal has discretion to decide that…the name of witnesses or parties should be suppressed, but only if satisfied that the circumstances fall within the terms of s 35(2), and that there are cogent reasons for doing so. That principle is based on the public interest in ensuring that proceedings before the Tribunal are conducted openly. That principle reflects the need for the Tribunal to establish that it is accountable to the public which funds its operations, and that the Tribunal is “providing a mechanism of review that is fair, just, economical, informal and quick”, the overarching objectives of its operations under the AAT Act.
(Footnote removed.)
[6]< Administrative Appeals Tribunal, Publication of decisions (Web Page, 24 September 2020) < Privacy and confidentiality at the AAT | Administrative Appeals Tribunal.
[7] Swannick v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCAFC 81 (‘Swannick’), [11]; [14]; [18] (McKerracher, White and Stewart JJ); Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 [50] (‘Suleiman’) (Colvin J), citing Chen v Migration Agents Registration Authority (No 1) [2016] FCA 649 [11]-[15].
[8] Re Tennant and Secretary, Department of Social Services (2014) 140 ALD 677 [18].
Professor Creyke drew upon the reasoning of the Full Court of the Federal Court of Australia (FCAFC) in Australian Securities and Investments Commission v Administrative Appeals Tribunal, [9] where their Honours stated:
…Although s 35(1) is subject to the balance of the section, it establishes a norm…that the proceedings before the AAT shall be in public. This norm is reinforced by the requirements of s35(3) which expressly confirm the principle that it is desirable that hearings be held in public. It follows that when deciding whether it is satisfied that it is desirable to exercise its powers under s35(2), the AAT is required to form a state of satisfaction which recognises the existence of the norm and the values it is intended to protect. This, no doubt, is why Brennan J in Re Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 510 described the power in s35(2) to depart from this norm as one to be exercised “sparingly.” …
Suppression orders are rarely made in courts, even though publicity undoubtedly disadvantages the parties…In the AAT itself facts which parties would not wish to be published and which may disadvantage them are frequently published…The reason these matters are not kept secret is the overriding importance of justice being administered openly and in public…
When measured against the existence of the norm of a public hearing…it is apparent that the AAT would need some cogent reason by reference to the particular case to depart from the ordinary requirement of a public hearing. It is difficult to accept that harm (even serious harm) to the recipient’s reputation resulting from public awareness of the banning order will be a sufficiently cogent reason to justify the grant of a stay in most cases. This is because the risk of harm of this type is inherent in the nature of a banning order.
(Emphasis added)
[9] Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130, [74]-[76] (Moore, Downes and Jagot JJ).
Mere belief that suppression is desirable is insufficient,[10] as are concerns about ‘embarrassment, inconvenience, annoyance or unreasonable or groundless fears’.[11]
[10] John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 (McHugh J).
[11] Swannick [14], citing Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 1) (2015) 331 ALR 68 [30] (Foster J).
The Applicant’s finding of guilt without conviction is already in the public domain. There is no evidence his criminal case was conducted in other than open court. The decision of the Migration Review Division (MRD) of this Tribunal, which reviewed the cancellation of the Applicant’s Student Visa in 2019, referred to the Court’s finding of guilt without conviction and the decision was published without a confidentiality order.[12]
[12] Exhibit R1, 133-136; Singh (Migration) [2019] AATA 1069 (‘Singh’), [11]; [21].
In relation to the Applicant’s submissions about s 8(2) of the Sentencing Act 1991 (Vic), nothing in these reasons conflicts with that provision or precludes publication of his name or details of his offending. It is not possible to avoid the latter because the Applicant’s non-refoulement claims arise directly from the circumstances of his offending.
The Applicant does not fall within the meaning of s 501K of the Act. There is also no evidence of any ‘demonstrable or real risk’ to his safety or that of a witness, if a confidentiality order is not made.[13] It is noteworthy that the Tribunal’s frequent reviews of s 501 applications require consideration of the nature and seriousness of an applicant’s offending and other conduct. This routinely includes more extensive and serious offending than in this case, without a confidentiality order being applied. The same can be said about personal information disclosed in compensation, veterans, social security, disability, and other review applications. The FCAFC has previously observed in relation to discussion of criminal matters, albeit in the context of convictions:
The fact of a conviction becoming known by members of the public and the effects of that knowledge, including any resulting difficulties in obtaining employment has not in the past and does not now provide any basis for departing from the open justice principle.[14]
[13] C7A/2017 v Minister for Immigration and Border Protection (No 2) [2020] FCAFC 70 [16] (Katzmann, Wigney and Abraham JJ).
[14] Swannick [16].
To conclude consideration of the confidentiality application, the submissions in support of an anonym being applied do not cross the high threshold required and the Tribunal declines to do so. There is no statutory requirement for the Applicant’s identity to be restricted. It is also not possible to impose confidentiality over certain aspects of his offending, because his non-refoulement claims arise directly from those aspects. The Tribunal directs, however, that publication of these reasons be withheld for 35 days after being given to the parties, to preserve the Applicant’s anonymity pending any judicial appeal on the confidentiality issue.
BACKGROUND
The Applicant is a 31-year-old citizen of India[15] whose parents, other relatives (save for his brother), and friends still live there.[16] He completed an undergraduate degree in India[17] and first arrived in Australia to undertake postgraduate study in November 2015.[18] Apart from a month-long return visit to India in 2017,[19] he has lived in Australia continuously for six years.
[15] Exhibit A1, 2 [11].
[16] Ibid 1 [13].
[17] Ibid 1 [14].
[18] Ibid 6 [38].
[19] Exhibit R1, 122.
Relatives in Australia
The Applicant refers to several relatives in Australia who are also Indian citizens:
(a)The Applicant’s wife will be referred to as ‘Ms AM’. She arrived in Australia in March 2016 to undertake post-graduate study,[20] met the Applicant at university, and they married in April 2017.[21] Ms AM completed a postgraduate degree in 2019 followed by a professional year program in 2020. She commenced part time work in October 2021.[22] Ms AM is currently on a Bridging Visa awaiting the outcome of a Temporary Graduate Visa application.[23] She shares a home with the Applicant, her sister, and the Applicant’s brother.
(b)The Applicant’s brother will be referred to as ‘Mr SG’. He arrived in Australia in 2019 and completed vocational studies as a house painter.[24] He currently works as a driver and holds a Temporary Graduate Visa.[25]
(c)The Applicant has one other sibling, a sister, who was in Australia on a Student Visa before returning to India in late 2020.[26]
(d)The Applicant claims to have a cousin from India residing in Australia,[27] who he described during the hearing as a ‘distant relative’.
[20] Exhibit A2, 1 [6].
[21] Ibid 2 [8].
[22] Ibid 1 [7].
[23] Ibid 1 [6].
[24] Exhibit A3, 1 [6].
[25] Ibid [6]-[7].
[26] Exhibit A1, 2 [13].
[27] Exhibit R1, 77 [Q9]; Exhibit A1 [28].
Visa history and offending in Australia
A chronology of the Applicant’s visa history and offending in Australia follows.
(a)8 November 2015: Applicant arrives in Australia as the holder of a Student Visa but withdraws from his university studies after a year. He was subsequently included as a secondary visa holder on Ms AM’s Student Visa.[28]
(b)16 August 2017: While working as a taxi driver, the Applicant is involved in an incident with a passenger in the early hours of the morning. This resulted in him being arrested, charged, and found guilty of Sexual assault.[29]
(c)1 September 2017 to 30 November 2017. Applicant commits three traffic offences.[30]
(d)6 December 2018: Minister cancels the Applicant’s Student Visa.[31] This decision was set aside by the MRD in March 2019.[32]
(e)March 2019: Ms AM applies for a Temporary Graduate Visa, which includes the Applicant.[33]
(f)2 June 2020 – April 2021: Minister advises the Applicant consideration is being given to refuse his visa application on character grounds and invites him to respond.[34] Applicant provides responses through his representative.[35]
(g)11 October 2021: Visa application is refused under s 501(6)(d)(i) of the Act.[36]
(h)15 October 2021: Applicant asks the Tribunal to review the visa refusal decision.[37]
[28] Exhibit R1, 41.
[29] Ibid 29-31.
[30] Exhibit R2, 72.
[31] Exhibit R1, 127-132.
[32] Ibid, 127.
[33] Exhibit R1, 45-59.
[34] Ibid 123-126.
[35] Ibid 60-121; 137; 140-164.
[36] Ibid 8-14.
[37] Ibid 1-7.

Pursuant to s 500(6L) of the Act, the Tribunal must decide this matter within 84 days of the Applicant being properly notified of the refusal decision. There is no dispute he was properly notified on 11 October 2021,[38] which means the 84^th day is 3 January 2022. This is six working days after the hearing and falls on a proclaimed public holiday.[39]
[38] In accordance with s 501G(1) o the Act.
[39] Pursuant to s 36(2) of the Acts Interpretation Act 1901 (Cth), it is permissible to decide this application on the next working day that is not a weekend day or a public holiday.
LEGISLATIVE FRAMEWORK
Taken together, s 25(1)(a) of the AAT Act and s 500(1)(b) of the Act underpin the Tribunal’s jurisdiction to review visa refusal decisions.
Section 501(1) of the Act, read in conjunction with s 501(6)(d)(i), provides the Minister with a discretion to refuse to grant a visa if the visa applicant does not satisfy the Minister that they pass the character test. Section 501(6)(d)(i) states that a person does not pass the character test if ‘in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would engage in criminal conduct in Australia’.
If an applicant fails the character test, the Tribunal, standing in the shoes of the original decision-maker, must determine whether the discretion under s 501(1) of the Act to refuse the visa should be exercised.[40] Guidance in exercising the discretion is found in Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (the Direction).
[40] PQSM v Minister for Home Affairs [2019] FCA 1540, [22].
The Direction
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act, provided the directions are about the performance of those functions or the exercise of those powers. The Tribunal must therefore comply with the Direction.[41]
[41] Section 499(2A) of the Act.
Clause 5.1 of the Direction sets out several objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens’. Clause 5.1(2) states:
…Where the discretion to refuse to grant…a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.
The Direction provides the following principles at cl 5.2:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Annex A to the Direction provides both general and specific guidance to decision-makers in determining whether a person passes the character test. Section 1 of Annex A provides:
(1) Under section 501 of the Act, a person may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test …
(2) Persons who are being considered under section 501 of the Act must satisfy the decision-maker that they pass the character test set out in section 501(6) of the Act. In practice, this requires the decision maker to determine, on the basis of all relevant information including information provided by the person, that the person does not pass the character test by reference to section 501(6) of the Act.
Clause 6 of the Direction provides that a decision-maker must take into account the considerations identified in cls 8 and 9 of the Direction, where relevant to the decision.
If an applicant does not pass the character test, the following primary considerations, at cl 8 of the Direction, must be applied to the specific circumstances of their case:
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the best interests of minor children in Australia;
(d)expectations of the Australian community.
Clause 9(1) of the Direction requires that other considerations must be taken into account where relevant, which include but are not limited to:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims;
(d)links to the Australian community, including:
(i)strength, nature and duration of ties to Australia;
(ii)impact on Australian business interests.
Clause 7(1) of the Direction states that in applying the primary and other considerations, ‘information and evidence from independent and authoritative sources should be given appropriate weight’.
Clause 7(2) of the Direction provides that primary considerations should generally be given greater weight than the other considerations. However, as held in Suleiman[42], regarding a previous equivalent Direction:
…Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
[42] Suleiman, [23].
In Jagroop,[43] the Court held that:
[57] … the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501…
…
[78] … Ultimately…each decision-maker must return to the probative material and evidence in an individual case: it is not the content of the Direction which determines the outcome of the exercise of the s 501 discretion, but rather its application by a particular decision-maker to the evidence and material in an individual case.
[43] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, [57] and [78].
Annex A, s 2 of the Direction is titled ‘Application of the character test’. Clauses 6 and 6.1 relevantly state:
6         Risk in regards to future conduct (section 501(6)(d))
(1) A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person would engage in any of the conduct specified in section 501(6)(d) of the Act. The types of conduct specified are discussed below.
(2) The grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or to remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act.
(3) It is not sufficient to find that the person has engaged in conduct specified in paragraph 501(6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act.
6.1      Risk of engaging in criminal conduct in Australia (section 501(6)(d)(i))
(1)       A person does not pass the character test if, in the event that the    person were allowed to enter or remain in Australia, there is a risk   that the person will engage in criminal conduct in Australia.
(2)       The reference to criminal conduct must be read as requiring that    there is a risk of the person engaging in conduct for which a criminal   conviction could be recorded.
ISSUES TO BE DETERMINED
The first issue to be determined is whether the Applicant fails the character test under s 501(6)(d)(i) of the Act. If he does not, then the reviewable decision is set aside because the impetus for cancellation under s 501(1) is not enlivened. If he does fail the character test, the Tribunal must make a subsequent decision whether to refuse the visa, after applying the Direction to the specific circumstances of his case.
EVIDENCE
Documentary evidence
The following documents were taken into evidence:
(a)Applicant’s documents numbering 174 pages, comprising:
(i)The Applicant’s Statutory Declarations dated 18 November 2021, 28 June 2020, and 17 June 2020; five receipts for charitable donations totalling $130 between 3 January 2020 and 12 November 2021; a Red Cross blood donation report stating the Applicant made nine donations as of November 2021; and eight photocopied photographs;[44]
[44] Exhibit A1.
(ii)Ms AM’s Statutory Declarations dated 28 November 2021, 11 May 2021, and 28 June 2020; a copy of her Australian postgraduate degree and academic results; certificate relating to her professional training; and a general practitioner’s and pathology report;[45]
[45] Exhibit A2.
(iii)Mr SG’s Statutory Declarations dated 28 November 2021 and 11 May 2021;[46]
[46] Exhibit A3.
(iv)Statutory Declarations of the Applicant’s friend dated 3 December 2021 and 29 June 2020;[47]
[47] Exhibit A4.
(v)Statutory Declarations of another friend dated 1 December 2021 and 28 June 2020;[48]
[48] Exhibit A5.
(vi)Report of psychologist Mr Jeffrey Cummins dated 8 December 2021, with accompanying letter of instruction;[49]
[49] Exhibit A6.
(vii)Report from the Department of Foreign Affairs and Trade (DFAT Report) titled DFAT Country Information Report for India dated 10 December 2020;[50]
[50] Exhibit A7.
(viii)Records from Fines Victoria dated 21 July 2020 and 2 December 2021;[51]
[51] Exhibit A8.
(ix)Five online newspaper articles lodged by the Applicant relating to COVID-19 dated between 29 November 2021 and 9 December 2021;[52]
[52] Exhibit A9.
(x)An online document lodged by the Applicant titled WORLD (/CORONAVIRUS/) / COUNTRIES / INDIA from ‘Worldometer’ India-Coronavirus Cases (Web Page) < Exhibit A10.

(xi)Notification of the grant of a Bridging Visa to the Applicant and Ms AM dated 12 December 2018;[54]

[54] Exhibit A11.

(b)Respondent’s documents numbering 187 pages;[55]
(c)Respondent’s supplementary documents numbering 73 pages;[56] and
(d)Tribunal documents consisting of:[57]
(i)World Health Organisation ‘Novel Coronavirus Disease (COVID-19) Situation Update Report-95’ for India dated 24 November 2021;
(ii)Government of India Press Information Bureau document titled ‘Cabinet approves “India COVID 19 Emergency Response and Health Systems Preparedness Package,’ dated 8 July 2021;
(iii)Centre for Monitoring Indian Economy unemployment statistics dated 12 December 2021;
(iv)Reuters COVID-19 Tracker statistics for India; and
(v)World Health Organisation online document of COVID statistics for India.
[55] Exhibit R1.
[56] Exhibit R2.
[57] Exhibit T1.

Applicant’s evidence

The Tribunal has considered the Applicant’s previous documentary evidence in Exhibit R1, and his most recent Statutory Declaration dated 28 November 2021,[58] which he adopted as true and correct. The Applicant gave evidence with the assistance of an interpreter in the Punjabi language.

[58] Exhibit A1, 1-11.

Life in Australia and future aspirations

After completing an undergraduate degree in India, the Applicant came to Australia in November 2015 to study for a Master of Business Administration degree. He met Ms AM at university, and they married in April 2017. He dropped out of university after a year because of the expense and to support Ms AM’s career aspirations, by working as a taxi driver.

After being found guilty of sexually assaulting a passenger in his taxi, the Applicant’s taxi licence was cancelled. He subsequently worked as a truck driver before purchasing his own truck for $20,000. He said the truck is now valued at between $17,000 and $18,000. If allowed to remain in Australia, he wants to start a transport business with a friend. The Applicant claimed he purchased a block of residential land in Australia under a friend’s name, because he is not permitted to purchase realty as a temporary visa holder.

The Applicant has two siblings. Mr SG is on a temporary visa and lives with him and Ms AM. His other sibling, a sister, previously studied in Australia, but has returned to India. When asked about a cousin referred to in his documentary evidence,[59] the Applicant said his father told him this person is ‘like a distant relative’. There was no evidence from the Applicant’s sister-in-law or cousin and their interests were not advanced during the hearing.

[59] Exhibit R1, 77.

The Applicant said Ms AM secured casual work after completing her postgraduate degree. He claimed the possible refusal of his visa ‘can have a big impact’ on her because: ‘She can’t live without me in Australia, and she does not accept a life in Australia without me’. He said their intention has always been to permanently reside in Australia.

The Applicant said he had contributed to the Australian community through donations and by volunteering with the United Sikhs Foundation (USF). He spoke about sometimes providing food to USF; where it was cooked, packaged, and given to those in need. He does not deliver the food himself. When asked why there was no corroborating evidence from USF, he responded: ‘I totally forgot about it’.

Offending

The Applicant has stated he does not have a criminal history in Australia because a conviction was not recorded and he was only fined.[60] In a Statutory Declaration dated 17 June 2020, he claimed it was the sexual assault victim who ‘tried to touch [him] badly,’ causing the Applicant to lose ‘consciousness’ and for his ‘body parts’ to go ‘out of control.’[61] In relation to the seriousness of his offending, the following was submitted in June 2020 by the Applicant’s migration agent:

The applicant has not been involved in any such criminal conduct which involves serious harm against individuals. The mistake he did was when the situation went out of his control, he lost his consciousness that moment and he was unable to control his feelings.[62]
…
The applicant agrees that what he did was not appropriate and for that he was issued a fine without conviction, indicates that the matters were at the lowest end of the scale.[63]
(Errors in original)
[60] Ibid 78 [Q10].
[61] Ibid 41-44.
[62] Ibid 62 [12].
[63] Ibid 63 [15]

The Applicant said he drove taxis for about eight months, and it was not unusual for passengers to have sexual conversations with him. He agreed his offence occurred within two years of arriving in Australia and four months after marrying Ms AM. He accepted that the four years since have been characterised by persistent uncertainty about his visa status.

In response to Mr Nikolic’s invitation to explain what occurred in the taxi, the Applicant said after reaching the victim’s destination, he ‘took the taxi to a dark place and went to the back seat.’ He took the victim’s hand and put it on his penis, offered the victim $20 for oral sex, and sucked the victim’s nipples. The Applicant said he noted the victim ‘wasn’t interested’ but still offered $20, which was refused. The Applicant said he dropped the victim home and again offered $20, which was refused. Under cross-examination, the Applicant agreed the victim did not ask him to get into the back seat or expose his erect penis. He also accepted that when he tried to place the victim’s hand on his penis, the victim pulled their hand away. When asked by Ms Liddy if the victim agreed to sexual contact at any time, the Applicant replied: ‘No’. He accepted that his conduct breached the trust between a taxi driver and their passengers.

The Applicant said his lawyer advised him to plead guilty to a single charge of sexual assault and he has since paid the fine imposed.[64]

[64] Exhibit A8.

The Applicant was asked about a recorded interview he gave to police on 30 August 2017.[65] He accepted some of the things he said to police were false, explaining he was embarrassed and ‘couldn’t think of what to say because [his] anxiety level was really high’. When asked what he attributed the sexual assault to, the Applicant said he ‘used to drive long hours,’ which caused him to be ‘in an irritated mood’. The Applicant was asked why protective factors like stable accommodation and employment, the love and support of Ms AM, Mr SG, and their friends, and motivation for a permanent life in Australia, did not prevent his sexual assault of a stranger. He responded:

I also wonder the same thing - how this thing happened and how I did it…It’s very hard to understand why I behaved in that way.
[65] Exhibit R2, 29-61.

The Applicant said Mr SG knows everything about his offending. Contrary to his sister’s Statutory Declaration that she has ‘full knowledge’ of his crime,[66] the Applicant disputed this at the hearing. He also claimed his parents and others in India are unaware of his offending.

[66] Exhibit R1, 109.

Remorse

The Applicant said he was sorry for his past conduct and recalled how difficult it was to tell Ms AM, who became very upset. Ms Liddy put to the Applicant that his shame and remorse centred on potentially adverse visa consequences rather than the harm caused to the victim. The Applicant claimed to have told Ms AM: ‘I hurt that person and you…I apologise to that person as well’.

Ms Liddy asked the Applicant about his Statutory Declaration dated June 2020,[67] which blamed the victim and demonstrated a lack of remorse. The Applicant responded: ‘Yes I understand that’. When pressed about whether this reflected a lack of remorse, the Applicant responded: ‘I do agree but at that stage I was really embarrassed about what happened and was struggling with what to say’. The Tribunal notes this Statutory Declaration was made approximately three years after the sexual assault offence.

[67] Ibid 41.

Rehabilitation

The Applicant said he was not ordered by the court to seek any offence-specific treatment or counselling and was not placed on the Sex Offender’s Register. He claimed that he and Ms AM nevertheless consulted a psychologist, Mr Eddy Kleynhans.[68] When asked if there was any evidence about these consultations, the Applicant responded: ‘I’ve sent it to my lawyer’. Mr Nikolic clarified, however, that no documents were provided, just advice that the consultations occurred. Ms Liddy put to the Applicant he undertook these consultations to support the current proceeding rather than addressing any behavioural issues. The Applicant insisted he consulted with Mr Kleynhans to ‘check…if I have the potential to do something like this again’. He also claimed he was prescribed ‘medication’, for which there was no corroborating evidence. Ms AM later explained they saw Mr Kleynhans on 20 and 26 October 2021, who gave them ‘medicine for stress,’ which was a homeopathic herbal product rather than a prescription medication.
[68] Exhibit A1 [26.]
Protective factors and recidivism risk
Ms Liddy asked the Applicant how he could be confident about controlling his sexual urges without any offence-specific programs. She referred the Applicant to the voice recording the victim made of their encounter, in which the Applicant stated: ‘I am hungry of sex’.[69] The Applicant said he goes to the gym, does meditation, and engages in positive activities. He stated: ‘I don’t think of this kind of stuff’. During re-examination, he stated he would not ‘do any such mistake’ again because his visa would be cancelled.
[69] Exhibit R2, 6.
The Applicant said he saw psychologist Mr Cummins on 25 November 2021. It was put to him the narrative he presented to Mr Cummins about the victim initiating contact and consenting to sexual interaction, before withdrawing consent, was untrue (withdrawn consent narrative).[70] The Applicant responded: ‘I want to say the truth to the Tribunal, I don’t want to hide anything’. After several questions he agreed that Mr Cummins accurately recorded his claims about the offending. The following exchange then occurred via the interpreter:
[70] Exhibit A6, 4-5 [28].
Senior Member: So is his evidence that at some point the passenger consented to sexual contact but then withdrew consent?
Applicant: Yes
Senior Member: When did the passenger consent to sexual contact?
Applicant: So when we were, not a yes, but when we were talking about things of a sexual nature, I felt that.
Senior Member: I’m sorry, say that again please, I didn’t understand the answer?
Applicant: So there was not a yes from the…passenger as such, but when we were talking about things of sexual nature, I felt that there was an indication.
Senior Member: How can that be consent?
Applicant: I felt, that’s what I felt, that’s why I was not sure about that.
Senior Member: So when I asked him earlier [he said] the passenger consented at some stage but later withdrew that consent…and now he’s saying he’s unsure. Which is it?
Applicant: So when we talked about things of sexual nature, I felt that…there was consent, that’s why I said there was a consent.
Senior Member: The offence of sexual assault, in the Crimes Act, to which the Applicant was found guilty, I think it’s section 40, is premised on certain elements. My understanding is it involves sexual touching, without consent, or a reasonable basis to think that consent had been given. And the Applicant’s evidence in response to questions earlier were that he pleaded guilty to this offence. And given everything he’s said today, and that is in his most recent statement, I’m finding his evidence implausible that he believes consent was given by this passenger at any stage. What does he say to that?
Applicant: Yes, I made an assumption that there was a consent, and I do realise that I cannot do that without someone’s consent, and it’s my mistake.
Prospect of repatriation to India
The Applicant said if he was repatriated to India his family and friends would want to know why and might make incorrect inferences about his offending. When asked by Mr Nikolic what his parents’ response would be if they did learn about his offending, the Applicant said:
They won’t accept it and won’t like it. They’ll excommunicate me and get me out of any property rights I might have…they might disconnect their relations with us…I’m very sure if my parents come to know about the nature of my offence, I won’t be inheriting my parent’s property.
Ms Liddy put to the Applicant he was speculating about others finding out about his conduct. The Applicant said he was ‘not suggesting it’s a surety it will happen’ but felt it would. When asked to explain why, given this had not occurred during the last four years, the Applicant said his parents would inevitably ask Mr SG, who ‘might say something’.
The Applicant said he was concerned about the COVID-19 Pandemic if returned to India because ‘there are a lot of cases every day’. He thought the health system in India was not coping and claimed: ‘Nobody looks after you there – the doctors don’t seem to care much’. The Applicant said he has received two doses of the Pfizer vaccine as of October 2021. When asked if he accepts that vaccination mitigates his COVID-19 concerns, the Applicant disagreed, claiming: ‘there is a high risk even after vaccination…there’s no guarantee’. When asked what that view was based on, he replied: ‘I listen to the news’. When asked if he had any medical qualifications, he stated: ‘I’ve done a biotechnology degree’. The Applicant agreed, however, this undergraduate degree did not give him any expertise regarding COVID-19. When asked why he was double vaccinated, the Applicant said it was compulsory and he could not work without it. When asked if any of his family in Australia or India had contracted COVID-19, he responded: ‘No’.
The Applicant said Ms AM could not survive in Australia without him. When challenged that she has a masters’ degree and works, the Applicant said she only receives $500 weekly from this casual work. When asked about increasing her work hours, the Applicant said this was ‘her decision,’ but she has ‘health issues,’ including ‘low blood’. When asked if Mr SG shared household costs, the Applicant said he did. It emerged later in evidence that Ms AM’s sister lives in the same house and also shares costs. When challenged that the household circumstances did not suggest financial reliance on the Applicant, he said this related more to Ms AM’s longer-term aspiration of buying a house in Australia.
Evidence of Ms AM
Ms AM gave evidence with the assistance of an interpreter in the Punjabi language. She adopted her Statutory Declarations as true and correct. Ms AM is one of four children, and apart from a sister living in Australia, the rest of her family are in India. She is currently on a Bridging Visa, started casual work in October 2021,[71] and is awaiting the outcome of a Temporary Graduate Visa application. Ms AM said she is at the ‘starting point’ of her career but is confident about getting ‘higher positions’.
[71] Mr Cummins noted in his report this was for three days a week.
Ms AM said the possibility of the Applicant’s visa being refused made her feel ‘depressed and stressed.’ This was because she ‘studied a lot’ in Australia and felt this would end her dreams of a permanent life here. The Tribunal inferred this to mean she would return to India with him in the event of visa refusal, rather than seeking a visa in her own right.
Ms AM said she was ‘in shock’ after learning of the Applicant’s offending and wondered if she chose the wrong person in her life. She said the Applicant explained everything and was so ‘guilty, ashamed, and regretful’ that she forgave him. She said the Applicant is a good person, supports her career, and makes ‘lots of donations’ and ‘charity stuff as well’.
Ms Liddy put to Ms AM that the Applicant was not thinking of her interests when committing sexual assault. Ms AM explained he was experiencing considerable stress at the time of his offending due to ‘lots of financial problems.’[72] She said he worked very long hours and a lack of sleep could cause ‘your brain not to be that stable’. Ms AM believes the Applicant has learned his lesson.
[72] Exhibit A2 [15].
Ms AM was asked about a general practitioner’s referral in evidence.[73] She said a blood test disclosed she has low iron levels, for which Vitamin B, iron supplements, and diet control were recommended.
[73] Exhibit A2.
Ms AM agreed that her Australian postgraduate degree would be recognised in India. She thought it would be difficult to find work if she returned, however, stating: ‘there’s lots of unemployment…particularly for women in the IT field’.
Evidence of Mr SG
Mr SG gave evidence with the assistance of an interpreter in the Punjabi language. He adopted his Statutory Declarations as true and correct. Mr SG has lived with the Applicant and Ms AM since arriving in Australia in April 2019. He is on a temporary visa that expires in late 2022. He described the Applicant as akin to a parental figure who supports and guides him. He said the Applicant was ‘helpful in general,’ introduced him and others to blood donations, and ‘helps students’. When asked to elaborate on the latter, he explained: ‘Not directly, we give food to the Sikh Temple’. Mr SG said he would be adversely affected if the Applicant was removed from Australia, by losing his direct guidance.
Mr SG said he is aware of the Applicant’s offending but considers him a ‘good person’ and not a ‘serious criminal.’ He believes the Applicant feels deep regret for his conduct. The Applicant had assured him the sexual assault was a ‘one time incident’. Mr SG agreed with Mr Nikolic’s proposition that ‘good people can make mistakes’.
If the Applicant is repatriated to India, Mr SG said Ms AM’s life would be ‘greatly impacted’ because she needs him for financial support and ‘can’t make plans without him’. When asked if Ms AM was employed, he responded: ‘Her health is not completely OK – her blood is low’. When asked to be relevant to the question, Mr SG agreed Ms AM is employed.
When asked how their parents might react if they learned about the Applicant’s crime, Mr SG said it would be hard for them, but believes they will continue to support the Applicant.
Evidence of friends
The Applicant called two friends to give evidence, who will be referred to as ‘S1’ and ‘S2’. They did so with the assistance of an interpreter. A copy of the first two pages of their Australian passports confirms their Australian citizenship.[74]
[74] Exhibit R1, 119; 121.
Evidence of S1
S1 adopted his Statutory Declarations as true and correct. He is married, has two infant children under five, and works as a truck driver.[75] He met the Applicant and Ms AM four years ago and considers them close friends. He is aware of the Applicant’s offence but does not consider it a serious crime. S1 believes the Applicant is remorseful and ‘will not make the same mistake again’. He referred to the Applicant’s community contributions, including by donating blood and ‘charity work’. He had not seen ‘any bad behaviour’ by the Applicant since his offending and stated he has been ‘very nice’.
[75] Ibid 120; Exhibit A1, 88.
S1 said he and his family have ‘spent so much time together [with the Applicant and Ms AM] over the last four years’.[76] His children ‘get excited’ when told they are visiting the Applicant. If the Applicant was removed, the children would cry and be ‘really sad’. When asked to elaborate, S1 responded: ‘They’ll be a bit sad and heartbroken, but I don’t know how they are going to feel’.
[76] Exhibit A1, 89 [14].
S1 said he and the Applicant purchased land together to build adjoining houses in future. The land is in S1’s name because of the Applicant’s visa status, and the ‘slabs are going to be done early next year’. There is no evidence before the Tribunal to corroborate this land purchase or any construction plans.
Evidence of S2
S2 adopted his Statutory Declarations as true and correct. He is married and has two infant children under three. S2 said he met the Applicant about four to five years ago. They worked together and their families are ‘very close.’[77] S2 referred to support provided by the Applicant when his first child was born. He and his wife had left both children with the Applicant and Ms AM ‘a couple of times’ since. S2 said he knows the Applicant’s family in India and speaks to them frequently on the telephone.
[77] Ibid 78-83.
S2 said he does not have many friends and sees the Applicant weekly. They plan to start a truck business together, which would be disrupted if the Applicant cannot stay in Australia. S2 said his wife is close to Ms AM and would be ‘really sad’ if she returned to India.
When asked why he believed the Applicant committed sexual assault, S2 responded: ‘I feel it’s because maybe he was working long hours’. He referred to the Applicant’s crime as a ‘one-off mistake’ and does not consider him a ‘serious criminal’. He thinks it ‘very unlikely [the Applicant] will commit further offences in the future’. S2 said he can tell this from the Applicant’s expressions and body language. But if something like this happened again, he could no longer leave his wife and children with the Applicant. S2 referred to the Applicant’s positive community contribution, including through donations and volunteering.
S2 said he purchased a block of land in the same residential housing development as S1. Although the Applicant’s removal would not affect his building plans, the reason he purchased this land was to live close to S1 and the Applicant.
Expert evidence
Mr Cummins adopted his report as true and correct.[78] He recalled meeting with the Applicant for about 90 minutes on 25 November 2021, and then interviewed Ms AM for about 15 to 20 minutes. After these consultations, Mr Cummins completed two actuarial instruments relevant to the Applicant’s sexual offending. He also considered the documentary materials provided by the Applicant’s lawyers. Mr Cummins was asked about the reference in his report to the Applicant having an adequate understanding of questions asked, ‘even in the absence of an interpreter’.[79] This question was in the context of the Applicant’s reliance on an interpreter at the present hearing. Mr Cummins said he was satisfied the Applicant understood his questions.
[78] Exhibit A6.
[79] Ibid, 3 [11].
After applying the Static-99R actuarial instrument, which is used to assess risk of recidivism in adult male sex offenders, Mr Cummins said the Applicant’s score put him in the ‘Above Average’ risk category.[80] Under the RSVP[81] actuarial instrument, however, Mr Cummins scored the Applicant as an overall ‘low’ risk of committing a further sexual offence. He said this is the lowest clinical category available. He said if an assessor believes a person is at the ‘lower end’ of low, they could refer to the risk as ‘negligible’, which was the case here. Mr Cummins agreed with Mr Nikolic that ‘negligible’ equated to ‘minimal’ or ‘trivial.’
[80] Ibid 5 [33].
[81] Risk for Sexual Violence Protocol.
Mr Cummins considers the Applicant ‘already rehabilitated’. He based this assessment on interview responses, actuarial test performance, the absence of court-ordered rehabilitation, no reoffending, and because the Applicant and Ms AM have a ‘satisfactory sexual relationship’. He said both confirmed this was also the case at the time of the Applicant’s offending in 2017.
Mr Cummins said he assessed the Applicant’s insight by ‘listening to his account’ and considering the documentary materials. The Applicant’s account of the sexual assault is at paragraphs 28 and 31 of Mr Cummins’ report:
28. In summary, Mr Singh stated there was initially what he regarded as some light-hearted verbal exchange…regarding their respective sexual interests, after which the passenger paid the requisite fare. The sexual banter then continued, whereupon Mr Singh maintains the passenger invited Mr Singh to get into the rear of the taxi for…some consensual sexual contact. Mr Singh said the passenger then placed his luggage on the front passenger seat and Mr Singh then got into the rear of the vehicle and there was some mutual sexual touching, whereupon Mr Singh became sexually aroused. Shortly later the passenger indicated he was no longer interested in having sexual contact with Mr Singh and Mr Singh noted the passenger appeared to be upset and…crying. Mr Singh then desisted and drove the passenger…home. There was no exchange of telephone numbers.
…
31. He emphasised he desisted in his actions with the passenger under circumstances where it became obvious…the passenger…changed his mind and…then appeared to be stressed and upset.
Mr Cummins said the Applicant had spoken about this incident during the police interview as if he was ‘blackmailed’ because of the ‘sexual banter’, which was distinct from the way he referred to it during their consultation. He said the Applicant claimed the victim ‘kept leaning over and was being sexually provocative’, which led the Applicant to ‘believe the victim wanted…sexual contact’ before changing their mind. Mr Cummins said there were inconsistencies in the Applicant’s account compared to the statement of alleged facts he pleaded guilty to, but this did not change his assessment. That was because the Applicant ‘was definitely taking responsibility for his offending’. Mr Cummins claimed he had also identified ‘inconsistencies in the victim’s statement’ and concluded, based on his experience, that the Applicant’s court matter ‘was a resolved plea hearing’ based on a ‘statement of alleged facts’. Mr Cummins agreed, however, he had no personal knowledge of what occurred during the court’s deliberations in 2018.
Mr Cummins was asked about the significance of the Applicant’s reliance on the withdrawn consent narrative during the last four years. He said this did not change his assessment, because the Applicant accepted he ‘sexually messed up’.
Mr Cummins was asked about his assessment that the Applicant was now no longer sexually naïve. He said this was based on how the Applicant spoke about his offending at their consultation, where he was ‘quite spontaneously remorseful’ and shocked at becoming sexually aroused during the taxi incident. When asked to explain why he believed the Applicant offended, Mr Cummins said the most useful indicators were age, naivety, inexperience of a similar situation, and a ‘degree of immaturity’. When challenged that the Applicant was married and 27 years of age at the time of his offending, Mr Cummins said the Applicant had nevertheless undergone further ‘maturation and self-searching’.
Mr Cummins was asked about the reference in his report to the Applicant ‘not experiencing problems with stress or coping’ at the time of his offending,[82] which was inconsistent with the evidence of the Applicant, Ms AM, Mr SG and S2. These witnesses contextualised the Applicant’s offending as resulting from stress, long work hours, and financial pressures. Mr Cummins confirmed the Applicant told him he was not experiencing any problems with stress or coping at the time of his offending, despite Mr Cummins questioning him ‘rigorously regarding stressors in his life at the time’.
[82] Exhibit A6, 59 [36].
Mr Cummins was asked about the similarity of protective factors existing at the time of the Applicant’s offending with those now relied upon. He agreed they were comparable but thought the Applicant’s sharing of information with Ms AM was influential, as was the absence of any order relating to offence-specific rehabilitation. He thought the Applicant had ‘learned his lesson’.
Mr Cummins said he diagnosed the Applicant as having a ‘single episode major depressive disorder’ of moderate severity under DSM-5 Code 296.22. This resulted from the Applicant’s ‘current visa situation’ and if ‘not overturned by the Tribunal, his mental health will inevitably deteriorate and most probably significantly so’. When asked if he prescribed any treatment, medication, or referred the Applicant to another practitioner following this diagnosis, Mr Cummins said he did not. He said the Applicant is not his patient but the subject of a medico-legal report. There is no evidence the Applicant has sought any further treatment for the condition diagnosed by Mr Cummins.

Mr Cummins was asked about the reference in his report to the Applicant claiming ‘never’ to have sought any offence-specific treatment.[83] This was in the context of the Applicant’s oral evidence that he saw another psychologist a month prior to seeing Mr Cummins and was prescribed ‘medication’. Mr Cummins said he had no knowledge of this other consultation and was concerned the Applicant did not mention it to him.
DOES THE APPLICANT PASS THE CHARACTER TEST?
[83] Ibid 4 [26]
Applicant’s submissions
The Applicant invites the Tribunal to conclude he does not fail the character test[84] because he presents no more than a minimal or remote chance of engaging in criminal conduct. Mr Nikolic said the grant of a Bridging Visa to the Applicant as a secondary holder of Ms AM’s visa[85] should be given considerable weight, because it would not have been granted if he posed any threat to the community. Mr Nikolic grounded this submission in criterion for the Bridging Visa, which require the decision-maker to be satisfied that an applicant will abide by any conditions imposed.[86] He said one of the conditions was: ‘8564 Must not engage in criminal conduct’.[87] Mr Nikolic said the Applicant had not reoffended and his ‘risk profile decreases as he ages’. He highlighted the ‘low sentence’ imposed by the court, the Applicant not being taken into detention, his honesty with Ms AM, and that he is aware any further offending would end his chances of remaining in Australia.
[84] ASFIC, 1 [5]; 3 [23]; 4 [29].
[85] Exhibit A11.
[86] Migration Regulations 1994 (Cth), 050.223.
[87] Exhibit A11, 67.
In relation to the provision of false information to police after being arrested, Mr Nikolic said the Applicant panicked, which was a ‘plausible explanation of why someone in those circumstances would seek to deny or minimise their involvement’. Mr Nikolic distinguished between three episodes of sexual conduct contained in the police report and how they might interact with the Applicant’s submissions about withdrawn consent.
Respondent’s submissions
The Respondent contends the Applicant fails the character test because there is at the ‘very least a risk’ he will commit further offences.[88] Ms Liddy said the risk assessment undertaken for s 501 visa refusals or cancellations was quite different to the grant of student or bridging visas, where delegates are not required to perform a risk assessment. By way of example, she referred to the MRD’s review of the Applicant’s student visa cancellation in 2019, which did not include a risk assessment.
[88] Respondent’s Statement of Facts, Issues and Contentions (RSFIC), 5 [17]. Emphasis in original.
In relation to the court’s decision not to record a conviction against the Applicant, Ms Liddy said courts were bound by sentencing principles that considered factors like guilty pleas and whether a person is a first-time offender. Notwithstanding the absence of a conviction, she said a finding of guilt for sexual assault and the substantial fine awarded, reflected very serious offending. She described the Applicant’s conduct as opportunistic, predatory, and reflective of a significant breach of trust.
Tribunal consideration
Authorities
The FCAFC has previously explained the nexus between the character test and Parliament’s intent, in Akpata:[89]
The definition of a person passing the character test in s 501(6) shows that Parliament intended that persons who have been convicted of relatively serious crime…or general conduct indicating bad character…should not be permitted to travel to or remain in Australia. Shortly put, persons who have committed or are likely to commit criminal or other like conduct should not be permitted to travel to or remain in Australia. Because the purpose is to exclude those persons, the matters that are relevant to the exercise of the Minister’s discretion will include any fact or circumstance which would suggest that a person of otherwise bad character (as it is defined in the Act) should be allowed to travel to or remain in Australia.
[89] Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65, 105 (Lander J).
It is worth noting the reference to the word ‘significant’ is no longer used in conjunction with assessing risk since Akpata.[90] Under the Direction, the grounds under s 501(6)(d)(i) of the Act ‘are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to…remain in Australia’, would engage in criminal conduct.[91] It is insufficient to find that the Applicant has engaged in such conduct in the past. There must be a risk of him engaging in criminal conduct ‘in the future’.[92]
[90] As amended by Item 11, Schedule 1 of the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth).
[91] Direction annex A s 2 cl 6(2).
[92] Ibid, cl 6(3).
The High Court’s reasoning in Minister for Immigration and Ethic Affairs v Guo (1997) 191 CLR 559 (Guo) is often cited for its relevance to administrative decision-making; and the ‘inter-relationship between the establishment of the occurrence of past events and the evaluation of the prospect that an event might occur in the future’. The majority observed that past events ‘are not a certain guide’, and, depending on circumstances, the probability of an event occurring could be so low as to be ‘safely disregarded’, or at the other extreme ‘may border on certainty’. The majority also observed there are a number of factors arising in making such evaluations, and that it is ‘ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed about past events’.[93]
[93] Guo at 574-575.
In Hughes v The Queen (2017) 263 CLR 338 at [74] (Hughes), Nettle J observed that evidence of a past offence is not significantly probative of the committing of another offence. His Honour stated what is required is ‘something more about the nature of the offences or the circumstances of the offending in each case…’.[94] In cases where there is a criminal record, an adverse inference can more reliably be drawn. Proven offences also enable a decision-maker to consider the risk of re-offending or harm arising more accurately from a repeat of such conduct.
[94] Hughes at 154.
In Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10 (Sabharwal), Kerr J considered the statutory construction of s 501(6)(d)(i), with reference to extrinsic material from the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth). His Honour stated at [83]-[84]:
Paragraph 46 of Sch 1 of the EM states that the “intention” of the provision was that “the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.”
Thus a derisorily small possibility would and could not satisfy the statutory test. However something that is “likely” to occur plainly would be within its terms.
In the subsequent appeal against Sabharwal,[95] the FCAFC explained that s 501(6)(d)(i):
…requires an evaluative judgment by the decision-maker…as to whether the decision-maker is satisfied…there is such “a risk”. Then, if the decision-maker is so satisfied, the decision-maker has a discretion to refuse to grant a visa to the person.
[95] Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [2].
In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033 at [74], Rares J reasoned it is not just criminal conduct but all past conduct that may be relevant to assessments about character and future risk or recidivism.
Consideration of Applicant’s evidence
Aspects of the Applicant’s evidence are inconsistent and unpersuasive. This included:
(a)The claim that he does not have a criminal history in Australia because a conviction was not recorded against him.[96] A finding of guilt constitutes a criminal history;
[96] Exhibit R1, 78 [Q10].
(b)Four years after his offending the Applicant continues to advance a narrative that blames the victim for initiating and consenting to sexual interaction, before withdrawing consent. This is evident from his initial police interview,[97] where the Applicant gave a false account of what occurred, until being informed the passenger made an audio recording.[98] The Applicant also made false claims in a Statutory Declaration dated 17 June 2020, portraying himself as the victim of the taxi passenger’s advances. The Tribunal does not accept the Applicant’s claims in his June 2020 Statutory Declaration that he:
[97] Exhibit R2, 33-43.
[98] Exhibit A1, 5 [22].
i)Was provoked by the victim’s initiation of physical contact, causing the Applicant’s ‘body parts’ to go ‘out of control’;
ii)Was asked for money by the victim;
iii)Lost ‘consciousness’ because of the victim’s conduct, during which he offered the victim money to ‘do something’ for him, but the victim said they were ‘not interested and let [the Applicant] go;
iv)Has ‘not been involved in any unlawful act ever’ and ‘there were no charges proved against me’; and
v)Has ‘always been a responsible individual’ and it was only a ‘slip of fate’ causing him to fall ‘prey to such unfortunate and undignified circumstances’.
(c)The Applicant persisted with the withdrawn consent narrative during his November 2021 consultation with Mr Cummins, and in his oral evidence at the hearing. He eventually agreed that he improperly assumed the victim’s consent. The Applicant’s efforts during the last four years to attribute responsibility to the victim are not to his credit. There is no persuasive basis for the withdrawn consent narrative, notwithstanding submissions on the Applicant’s behalf that three episodes of sexual conduct are apparent from the summonsed materials, one of which might constitute consent. The Tribunal considers this unpersuasive because of the court’s finding, the victim recording the encounter before the Applicant moved into the back seat of the taxi, and the victim’s immediate report of the incident to police on arrival home.
(d)The Tribunal does not accept the Applicant’s evidence that he lied to police because he could not ‘think of what to say’ or due to high anxiety. The transcript of interview shows the Applicant made intentionally false claims until told by police the victim made an audio recording on their telephone. Any anxiety experienced by the Applicant after arrest does not explain his persistent reliance on the withdrawn consent narrative during the last four years.
(e)The Tribunal does not accept the Applicant’s claim in his November 2021 Statutory Declaration that he failed to provide ‘a very detailed explanation’ about his offending in the June 2020 Statutory Declaration.[99] The fault with his earlier claims is not a lack of detail, but their self-serving and revisionist nature.
(f)The Tribunal is unpersuaded by the Applicant’s expressions of remorse, which centre predominantly on the effects of his crime on plans for a permanent life in Australia with Ms AM. Someone truly remorseful and contrite would not persistently blame their victim. The withdrawn consent narrative is disrespectful to the victim, the court’s finding of guilt, and raises concerns about the extent of the Applicant’s insight, remorse, and rehabilitation.
(g)The Applicant’s evidence about his relatively recent consultation with psychologist Mr Eddy Kleynhans is unpersuasive.[100] He claimed these sessions constituted ‘counselling’ and he was given ‘tools’ to manage feelings arising from his offending. No corroboration was provided for any counselling outcomes. In oral evidence, it emerged there have been only two relatively recent consultations with Mr Kleynhans on 20 and 26 October 2021. The Applicant’s claim that Mr Kleyhnans prescribed him ‘medication,’ was clarified during Ms AM’s later evidence that the ‘medication’ was some form of homeopathic herbal product.
(h)The Applicant’s evidence about his parents finding out about the victim’s gender and disinheriting him, or that other members of the Indian community might make incorrect inferences and harm him, is speculative and overly pessimistic. For the reasons adduced earlier, details about the Applicant’s court appearance and its outcome are in the public domain, although the Tribunal accepts there is no detail about the specific nature of his offending. Ms AM, the Applicant’s two siblings, and S1 and S2 are aware of his crime. The latter talks to his parents in India frequently. In oral evidence the Applicant disputed his sister’s knowledge about his offending, which conflicts with her Statutory Declaration and the Applicant’s own claims to Mr Cummins. There is no evidence to corroborate the Applicant’s assertion his parents in India will likely discover his crime and disown him. Mr SG’s evidence directly contradicts that. He said it would be hard for their parents if they found out, but their support of the Applicant would continue. There is no persuasive basis to support the Applicant’s claim that Mr SG might disclose his crime to their parents, which would be entirely inconsistent with Mr SG’s steadfast support during the last four years
(i)The Applicant’s evidence about risks confronting him if returned to India is speculative and overly pessimistic. This includes the possibility that members of the Indian community will incorrectly infer he is homosexual and try to harm him. The Applicant does not identify as homosexual and claims to be in a happy married relationship with Ms AM.[101]
(j)In relation to risks from COVID-19, the Applicant relies on unsubstantiated claims about the inefficacy of vaccination and inadequacy of the Indian health system. Mr Cummins noted in his report the Applicant’s sister returned to India in late 2020 ‘because of Covid-19 related issues’.[102] This suggests she does not share the Applicant’s concerns about a heightened risk from COVID-19. The Tribunal does not accept the Applicant’s undergraduate biotechnology degree gives him any insight into COVID-19 or measures taken to combat it. The Tribunal also does not accept the Applicant’s submission that COVID-19 ‘case numbers in India have not slowed or stabilised’.[103] The online articles he relies upon are inadequate support for that contention.[104] They also do not support his speculative submissions about how the emerging Omicron variant might impact the Applicant and broader Indian society.
(k)The Applicant’s evidence about the extent to which Ms AM and Mr SG are reliant on him remaining in Australia is over-stated. Even if Ms AM decided to remain in Australia, three adults would be sharing this property and living expenses. Ms AM has a postgraduate degree from an Australian university and started casual work in October 2021.[105] She expresses a commendable desire to get more permanent work. Mr SG is an adult who has completed vocational training and works fulltime as a driver. There is no evidence his dependency on the Applicant precludes him from pursuing his own life and career choices.
(l)The Applicant’s evidence about his contribution to Australia through ‘lots of charity work’ and volunteering is over-stated. There is no corroborating evidence from the recipients of his claimed volunteering. When his claims were tested under cross-examination, it emerged he sometimes delivers food to a Sikh Temple, which others cook and distribute. The blood and financial donations, for which he provided evidence, are relatively modest and recent.
[99] Ibid, 1 [5].
[100] Exhibit A1, 6 [26.]
[101] ASFIC, 8 [60].
[102] Exhibit A6, 3 [16].
[103] Applicant’s Reply dated 10 December 2021, 5 [11].
[104] Exhibit A9.
[105] Exhibit A6, 4 [27].
Consideration of Ms AM’s and Mr SG’s evidence
The Tribunal has considerable sympathy for Ms AM and does not doubt that refusal of the Applicant’s visa would be emotionally wrenching for her. This would present her with a difficult decision, but the evidence strongly suggests she would return to India with him.
Mr SG has provided the Applicant with steadfast support. The Tribunal accepts his evidence that even if their parents found out about the Applicant’s offending, they would continue to support him.
Consideration of the Applicant’s sister’s evidence
The Applicant’s sister claimed in her Statutory Declaration that she has ‘full knowledge’ of his ‘case in Australia.’[106] The Applicant repudiated this in his oral evidence, claiming she only knows there is a ‘criminal legal case’ against him but not the specific charge or details. The Applicant told Mr Cummins ‘his sister has knowledge regarding his offending behaviour and his criminal history but has no knowledge about his visa situation.’[107] This inconsistency in the evidence could not be resolved because the Applicant’s sister was not called as a witness. Absent that opportunity, the Tribunal prefers the contents of her signed Statutory Declaration and Mr Cummins’ references to what the Applicant told him, rather than the Applicant’s oral evidence at the hearing.
[106] Exhibit R1, 109.
[107] Exhibit A6, 3 [16].
Consideration of Mr Cummins’ evidence
Mr Cummins is undoubtedly a very experienced psychologist. That said, he undertook a 90-minute consultation with the Applicant without an interpreter. Given the Applicant’s almost exclusive reliance on an interpreter at the hearing, the Tribunal is concerned one was not available during their consultation. The Tribunal is also concerned about some of Mr Cummins’ assessments and optimistic views:
(a)Much of Mr Cummins’ assessment is reliant on the Applicant’s self-reported claims, including the withdrawn consent narrative. The Tribunal was unpersuaded by Mr Cummins’ claim that the Applicant’s reliance on the withdrawn consent narrative during the last four years did not impact his assessment, because he ‘definitely takes responsibility for his offending’. Someone who accepts responsibility for their offending does not persistently try and blame their victim.
(b)Mr Cummins found the Applicant constituted an ‘Above Average risk’ of committing a further sexual offence under the Static-99R actuarial instrument, but a ‘Low’ overall risk under the RSVP instrument. Notwithstanding Mr Cummins evidence, it remains unclear why the latter is preferred. The RSVP assessment encompasses the withdrawn consent narrative and refers to several conclusions the Tribunal does not consider are persuasively established. These include that: there were no ‘problems with stress or coping’ at the time of offending; and ‘immaturity and sexual naivety’ were the ‘most useful indicators’ of why the Applicant offended. The Tribunal is unpersuaded because:
(i)The Applicant, Ms AM, Mr SG, and S2 variously referred to stress from long work hours, lack of sleep, irritability, and financial problems as relevant to his crime. This conflicts with the Applicant’s claims to Mr Cummins.
(ii)At the time he committed sexual assault, the Applicant was a 27-year-old tertiary-educated adult, who had relocated to Australia, married, and was in fulltime work. His life circumstances and conduct in the taxi do not persuasively correlate with an immature or naïve person.
(c)The Tribunal is unpersuaded by Mr Cummins’ assessment that the Applicant is ‘already rehabilitated’. The Applicant’s persistent reliance on the withdrawn consent narrative detracts from his rehabilitative claims. Four years after his offending the Applicant is also unable to explain why he acted in this way. The Tribunal remains concerned about the potential for similar, opportunistic sexual offending.
(d)Mr Cummins recorded the Applicant’s claim that ‘his sister has knowledge regarding his offending behaviour and his criminal history, but has no knowledge about his visa situation.’ This aspect of the report conforms with the sister’s Statutory Declaration, but conflicts with the Applicant’s oral evidence, who claimed his sister does not know the charges he faced or any facts about his offending. The Tribunal prefers the sister’s Statutory Declaration and Mr Cummins reference to what she knows, to the Applicant’s latest claims.
(e)The Tribunal does not understand how Mr Cummins identified inconsistencies in the taxi victim’s statement despite no involvement in the 2017 criminal case. It also remains unclear what this has to do with the ‘Parameters for assessment’ in Mr Cummins’ letter of instruction.
(f)The Tribunal shares Mr Cummins’ concern that the Applicant did not advise him about the two consultations with psychologist Mr Kleynhans in October 2021.
(g)Mr Cummins diagnosed the Applicant as having a major depressive disorder of moderate severity at the time of their November 2021 interview, but did not prescribe treatment, medication, or refer the Applicant to another practitioner. This is despite his letter of instruction requiring the identification of any ‘relevant treatment or supports’. It remains unclear to the Tribunal what if any unmet treatment needs the Applicant has.

The ASFIC contends that:
60. The Applicant highlights two difficulties with being returned to India. The first is that his family are not aware of his offence and he faces being disavowed by his family if they become aware of his offending. Further, should members of the community become aware of his offence, being harmed by members of the community who are opposed to homosexuality, despite the Applicant not identifying as a homosexual.
61. The Department of Foreign Affairs Country Information Report on India, dated 10 December 2020, highlights that despite homosexuality being decriminalised in September 2018, attitudes towards gay men have not changed:
[3.160] Until a September 2018 Supreme Court judgement, section 377 of the Penal Code criminalised homosexuality. In 2018, however, the court decriminalised adult consensual same-sex relationships and declared section 377 unconstitutional. Sources told DFAT attitudes towards gay men have not changed, despite the change in the law. Sources claim police still use many ‘nuisance laws’ to arrest, harass, manipulate and bribe gay men whose families are not aware of their sexual orientation. Sources told DFAT it is possible for middle class, educated gay men to relocate in India. However, this had to be weighed against the concept and custom of family ties, which were hard to break. Local sources claim while there are ‘gay nights’ in a few bars, there are no safe spaces for gay men.[136]
[136] ASFIC [60]-[61].
The other concern expressed in the ASFIC is the Applicant’s fear of becoming infected with COVID-19, either in immigration detention or in India, and being unable to access medical support in the latter given the pressures on India’s health system. The ASFIC stated:
62. Second, the Applicant fears that he will be infected by the COVID-19 virus. The COVID-19 pandemic has had a severe impact on India and strained the health infrastructure. The DFAT Report highlights the impact as follows: The DFAT Report highlights the impact as follows:
2.38…The COVID-19 pandemic has placed strain on India’s health infrastructure, particularly in the more densely populated and less well-equipped states of northern and central India. As at 26 November 2020, India had exceeded 9.2 million cases of COVID-19 (and over 135,000 deaths), and was the second-ranked country by the number of confirmed cases globally. India’s cumulative confirmed cases equate to around 6,880 per one million of population (compared to around 41,400 per million in the United States and 1,095 per million in Australia). In April 2020, the government amended the Epidemic Diseases Act to introduce fines and jail terms for assaults on health workers, after reports of workers facing ostracism, harassment and assault throughout the COVID-19 response
63. As at 22 November 2021, India has recorded over 34 million cases of COVID-19 and 465,662 deaths.[137]
64. There is a practical difficulty in removing the Applicant during the COVID-19 pandemic should the Tribunal affirm the refusal decision. The Applicant would likely then face prolonged detention while awaiting removal. This would cause considerable hardship for the Applicant.
65. We submit that this consideration weighs in favor of the Applicant.
[137] Citing data obtained from Worldometers, India,
During closing submissions, Mr Nikolic did not raise COVID-19 in the context of non-refoulement, but only as an impediment to removal. When questioned about this, he confirmed that COVID-19 was no longer advanced under this consideration but as an impediment to removal.
Respondent’s submissions
The Respondent submitted that the Applicant did not make his expanded non-refoulement claims before the Minister’s delegate, which weighs against his subjective fear of harm. The Respondent also submitted the Applicant’s personal circumstances, including that he does not identify as homosexual and is in a loving and happy relationship with Ms AM, conflict with the reasons he believes others in India may judge or try to harm him.[138]
[138] RSFIC, 10-11 [42].
Tribunal’s consideration
The Applicant is an Indian citizen who resided in that country for 25 years. His parents, one sibling and other relatives and friends remain in India, which would be the receiving country for the purposes of s 5(1) of the Act.
McHugh J has previously observed that:
When the definition of refugee is read as a whole, it is plain that it is directed to the protection of individuals who have been or who are likely to be the victims of intentional discrimination of a particular kind. The discrimination must constitute a form of persecution, and it must be discrimination that occurs because the person concerned has a particular race, religion, nationality, political opinion or membership of a particular social group. Discrimination - even discrimination amounting to persecution - that is aimed at a person as an individual and not for a Convention reason is not within the Convention definition of refugee, no matter how terrible its impact on that person happens to be. The Convention is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by or with the tacit acceptance of the government of the country from which they have fled or to which they are unwilling to return.[139]
[139] Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, 257.
The Applicant’s claim about potentially being perceived as homosexual and harmed in India is new. It was not advanced during his previous visa cancellation in 2019 or to the delegate who refused the visa in this matter. The recency and general, speculative nature of this claim detracts from its persuasiveness.
The Applicant has a relatively common name, and it remains unclear why others in India would inevitably find out about his offending if they have not done so during the last four years ago. The MRD decision naming the Applicant has been in the public domain for about three years. In terms of the contention that others in India may draw the wrong inference if he returned to India alone, the evidence strongly suggests Ms AM will accompany him. In any event, an Indian citizen returning after a period of study and work abroad is unremarkable. The Applicant’s sister is an example of this. The Tribunal is unpersuaded that the act of re-establishing himself would attract undue attention, inevitably disclose his offence, and result in a risk of harm.
The Tribunal accepts the Applicant’s evidence, supported by Mr Cummins, and corroborated by Ms AM, that he does not identify as homosexual and is happily married.
In relation to the Applicant’s claim about being ostracised by his family, his oral evidence centred predominantly on the prospect his parents would disinherit him. The Tribunal does not accept the submission that ‘his family are not aware of his offence’.[140] Ms AM and the Applicant’s siblings know about his offending. Ms AM said they have had to explain his conduct ‘again and again,’ including to ‘family and friends.’[141] Importantly, when asked how their parents would respond if they learned about the offending, Mr SG said it would be hard for them, but they would continue to support the Applicant.
[140] ASFIC, 8 [60].
[141] Exhibit A1, 48 [18].
The Applicant said he was raised in an ‘upper middle-class family’ in India, which was loving, caring, and supportive, with no form of domestic violence.[142] All the family members and close friends who know about his offending have remained supportive, and do not appear to have disclosed this information to others. While the Tribunal accepts the Applicant has not told his parents, the submission that he faces being disavowed is speculative at best.
[142] Ibid 2 [14]; Exhibit A6 3 [17].
On the recent, scant, speculative, and overly pessimistic submissions made by the Applicant, the Tribunal does not accept he has a well-founded fear of persecution and is not a refugee. The Tribunal also does not accept there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia, there is a real risk he will suffer significant harm.[143]
[143] Which refers to the provision of protection to those not falling within the definition of refugee, but whose circumstances may trigger obligations under other human rights conventions to which Australia is a party.
It was confirmed during the hearing the Applicant has not applied for a Protection Visa but is able to do so. If he did, a refusal decision does not result in immediate removal. While the results of a Protection Visa application should not be speculated upon,[144] the Minister’s Department is compelled to assess non-refoulement claims in compliance with Direction No 75 – Refusal of Protection visas Relying on Section 36(1C) and Section 36(2C)(b) (“Direction 75”). Direction 75 requires that an applicant’s protection claims must be ‘conclusively assessed’ before consideration is given to any ineligibility criteria like ‘character or security concerns’: cl 9.1(7) of the Direction. A decision-maker considering a Protection Visa application is also not bound by the Tribunal’s findings in the present matter.
[144] DOB18 v Minister for Home Affairs [2018] FCA 1523 at [35] (‘DOB18’); MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35; RJFB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1284.
The primary legal consequence of refusing the Applicant’s visa is that he is liable to be detained under s 189 of the Act, and removed as soon as reasonably practicable, irrespective of Australia’s non-refoulement obligations: ss 197C and 198 of the Act. It is permissible to continue a person’s detention while consideration is given to a Protection Visa application, or the possible exercise of a non-compellable Ministerial discretion under s 195A of the Act,[145] or to make a residence determination under s 197AB. The Tribunal notes in this regard the Applicant was permitted to remain in the community after his crime, although there is no guarantee this will continue if his visa is refused. There is no evidence the Respondent is contemplating any of the non-compellable discretions.
[145] Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219; Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 at 191 [16].
In respect of the Applicant’s claims about the prospect of ‘prolonged detention while awaiting removal’ due to the COVID Pandemic, judging the duration of a non-citizen’s detention is difficult and speculative. It turns on the often-irresoluble branches and sequels of future events, including the extent to which appeal rights are pursued, or applications yet to be made, or Ministerial discretion yet to be considered, or a choice to voluntarily return.
In terms of potential risks from COVID-19 if the Applicant is taken into immigration detention, no evidence was provided to support his assertion that ‘there have been lots of cases’ in Australia’s detention facilities, affecting his chances of contracting COVID-19. It remains unclear how conditions in detention may intersect with his circumstances as a relatively young, healthy man who is vaccinated against COVID-19. There was also no evidence provided about what ‘practical difficulty’ might impede the Applicant’s removal if his visa is refused and he enters immigration detention. The submission that he faces ‘prolonged detention while awaiting removal’ due to COVID-19, which would result in ‘considerable hardship’, is an uncorroborated assertion at best.
Irrespective of options that might eventually be pursued by the parties, a visa refusal decision comes with considerable significance for the Applicant. This would likely end his, and perhaps Ms AM’s, aspiration for a permanent life in Australia. It is not possible, however, to say how long the processes outlined above might take in the event of a visa refusal. In DOB18 at [35], Griffiths J reflected favourably on the reasoning in Ali[146], when cautioning decision-makers against speculating about the course of future decision-making:
…Justice Flick’s reasoning in Ali was adopted and applied by Logan J in Greene at [19] and by Farrell J in Turay at [40]…Contrary to the applicant’s submissions, I do not consider that the reasoning in this trio of cases is plainly wrong. Indeed, I consider that it is plainly correct. In my respectful view, it properly recognises the importance of the different stages of decision-making under the Act and the need to avoid speculation as to what might or might not occur in future decision-making...
(Emphasis added)
[146] Aliv Minister for Immigration and Border Protection [2018] FCA 650 [33]-[35].
The fears expressed by the Applicant do not enliven Australia’s international obligations. No weight is placed on this consideration.
Extent of impediments if removed
This consideration requires an assessment of impediments the Applicant may suffer if repatriated. This is assessed in the context of maintaining basic living standards generally available to citizens of that country.
Country of return
There is no dispute that the country of return in the event of removal is India.
Age, language, culture
The Applicant is 31 years of age and lived in India for the first 25 years of his life. Most of his family live there and he last visited in 2017. The Applicant speaks fluent Punjabi, some English, has an Indian undergraduate degree and a year of MBA studies in Australia. After six years living in Australia, it is accepted there may be a period of adaptation, but no language or cultural barriers are discernible.
Health
Notwithstanding Mr Cummins’ diagnosis, for which no treatment has been prescribed, the Applicant claims there is no impediment to his immediate return to employment.
Employment and daily needs
The Applicant has a degree in biotechnology from an Indian university.[147] He undertook postgraduate studies in Australia, has been consistently employed, and claims to have assets in the form of realty and a truck.
[147] Exhibit A1, 4 [14].
The DFAT Report refers to the Indian economy being sharply impacted, resulting in its ‘first ever technical recession,’ and to higher unemployment.[148] In terms of the Applicant’s claim that it will be hard to secure employment in India because of COVID-19, there appear to have been surges in unemployment correlating with COVID-19 spikes during the last two years. This does not appear dissimilar to unemployment trends across the international system. The Tribunal notes from open-source material, provided to the parties during the hearing, that India’s current unemployment rate is around 7%.[149] This is admittedly higher than Australia’s at 5.2%,[150] although it should be noted India has consistently been one of the world’s fastest-growing large economies.[151] Moreover, the Applicant would be resuming a life he lived in India to the age of 25, with no persuasive evidence that he could not rely on family support. There is also no evidence he would be treated differently to other Indian citizens if he did require social, medical, and/or economic support.
[148] DFAT Report [2.23]-[2.29].
[149] Centre for Monitoring Indian Economy, Unemployment Rate in India (Web Page) <Unemployment (cmie.com)>.
[150] Australian Bureau of Statistics, Labour Force, Australia (Web Page, 16 December 2021) <Labour Force, Australia, November 2021 | Australian Bureau of Statistics (abs.gov.au)>.
[151] DFAT Report [2.23].
Ability to support Ms AM and Mr SG
The Applicant claimed he would be unable to support Ms AM in Australia because of problems finding employment and comparatively lesser income in India. He similarly claimed that Mr SG relies on him ‘for practical, financial and emotional support’.[152]
[152] ASFIC, 10 [68].
The Applicant’s referred to the possibility of returning to India without Ms AM, although this conflicts with his other evidence:
My wife…always told me that if my visa is refused and I return to India she will accompany me and abandon her career path in Australia…[153]
[153] Exhibit A1, 18.
Ms AM is on a Bridging Visa and has applied for another temporary visa, which remains under consideration. She has previously stated: ‘I really love [the Applicant] from the depth of my heart and could not consider the option of living alone in Australia without his support’.[154] In a more recent statement she said:
‘I don’t think that I could stay here without my husband. He is my best friend…and I could not live in separate countries to him…I could not consider the option of living alone in Australia without his support.[155]
[154] Exhibit R1, 89.
[155] Exhibit A1, 49 [24]; 57.
COVID-19
The Applicant expressed concerns about contracting COVID-19 in India and not being able to access medical care. That is despite being fully vaccinated, which he contends does not diminish his risk of contracting COVID-19. The Tribunal has considered the online materials provided by the Applicant in support of his COVID-19 concerns.
Respondent’s submissions
The Respondent submitted that the Applicant’s fully vaccinated status mitigates his risk of contracting COVID-19. The following submissions were also made regarding the impact of COVID-19 in India:
Whilst the Minister accepts that COVID-19 was a significant challenge faced by India, case numbers are now much lower and have stabilised. A survey of blood samples published in October 2021 demonstrated that more than 90% of Delhi’s residents have antibodies against COVID-19, and on 21 October 2021, Prime Minister Modi declared that India had administered its billionth dose of vaccine. Further, in September 2021 less than 2 per cent of Delhi’s COVID-19 beds were occupied, with business and schools reopening.[156]
(Footnotes removed)
[156] RSFIC, 13 [52].
Conclusion on extent of impediments
Since arriving in Australia six years ago, the Applicant has improved his level of education, worked consistently, saved, claims to have purchased land and a truck, and started a business. This is notwithstanding the stressors arising from his offending. He has resources to draw on and is comforted by the continuing support of Ms AM, Mr SG, S1 and S2.
The Applicant lived in India for the first 25 years of his life and there is no discernible language or cultural impediment. There is no persuasive evidence he is unable to rely on family in India for practical and emotional support. The Applicant has realistic prospects of finding employment in India and being able to support himself. While remuneration in India may be below that of Australia, the Direction does not require a comparative assessment of pay, or living standards, or service availability.[157]
[157] Vural v Minister for Home Affairs [2020] FCA 667 [32] (Anderson J).
The Applicant may be confronted by emotional hardship if Ms AM does not accompany him. Hers is undoubtedly a difficult but personal choice to make. The available evidence, however, strongly suggests she intends returning to India with the Applicant.
The Direction does not require consideration of an Applicant’s ability to support other non-citizens living in Australia on temporary visas. That said, the Tribunal does not accept Ms AM is financially reliant on him. It is open to her to remain in Australia and pursue her own visa pathway and career.[158] She holds a post-graduate degree from an Australian university and has commenced work in her chosen profession.[159] There is no persuasive evidence she could not increase her work hours if desired. Ms AM, her sister, and Mr SG live in a rental home together, earn income, and share costs. There is no persuasive evidence they are financially reliant on the Applicant.
[158] Exhibit R1, 150 (last paragraph)
[159] Exhibit A1, 46 [7]; 48 [21].
The Applicant’s submissions about potentially contracting COVID-19 in immigration detention or India and being unable to access treatment because of an over-stretched health system, are overly speculative and uncorroborated by the material he provided. There is no evidence about his risks of contracting COVID-19 if detained. Moreover, the statistical information about COVID-19 in India, from an online organisation called ‘Worldometer’ and the online newspaper articles relied upon,[160] are unpersuasive support for the dire but speculative contentions about a third wave of COVID-19 in India. The Worldometer charts are of uncertain provenance and lack any expert interpretation or analysis. The online media articles refer to the following topics: an outbreak of Dengue Fever rather than COVID-19; a report of 21 Omicron cases in India over the 4-5 December 2021 weekend and encouragement of vaccination; ‘low case counts’ in India and a dimming of the ‘memory of a brutal second wave in April and May this year’; an assessment that India ‘may not see a rise in cases’ as a result of Omicron; and a report that the Omicron peak could occur in November 2022, ‘but it will be milder than the second wave’. These exhibits do not support the Applicant’s contention that ‘case numbers in India have not slowed or stabilised, particularly with the emergence on (sic) the Omicron variant…’[161]
[160] Exhibit A9.
[161] Applicant’s Reply Submissions, 5 [11].

The Tribunal considers the DFAT Report[162] an impartial and reliable source of expert information, albeit it is now a year old. Issues relating to the COVID-19 Pandemic are fast-moving and much has changed during the last year. The Tribunal has made its own enquiries and shared the results with the parties during the hearing. This included information from the World Health Organisation dated 24 November 2021,[163] which shows that COVID-19 infection numbers in India have markedly declined. India has a population approaching 1.4 billion people and the 7,579 cases reported on 23 November 2021 are referred to as the ‘lowest single day cases after the second wave’ spike of COVID-19 cases in early 2021.[164] Other open-source commentary reflects continuing containment efforts through additional government expenditure and policy responses. An example of this is an Indian Government announcement on 8 July 2021 regarding further enhancements to India’s health system.[165] The Tribunal prefers the reports from the World Health Organisation and other materials it consulted, to the Applicant’s Worldometer charts and online newspaper reports.
[162] ASFIC, 9 [62]-[63].
[163] World Health Organisation, Novel Coronavirus Disease Situation update Report 95 (Web Page, 24 November 2021) <india-situation-report-95.pdf (who.int)>.
[164] Ibid.
[165] Press Information Bureau Government of India, Cabinet approves “India COVID 19 Emergency Response and Health Systems Preparedness Package: Phase II” at a cost of Rs 23, 123 crore (Web Page, 8 July 2021) <Press Information Bureau (pib.gov.in)>.
The Applicant is double vaccinated and would not currently be affected by any limitations in India’s vaccination program. The Applicant’s evidence is that no members of his immediate family in India have contracted COVID-19. According to Mr Cummins, the Applicant’s sister returned to India in late 2020 ‘because of Covid-19 related issues’.[166] The Tribunal does not accept the Applicant’s submissions about the inefficacy of the COVID-19 vaccine. He is a relatively young man and there is no medical evidence he suffers any comorbidities making him more susceptible to COVID-19 than comparable peers. The World Health Organisation reports that COVID-19 impacts vary due to rural-urban inequality. It is unclear where the Applicant would live if returned to India, but there is no evidence he would be forced by circumstances to live in a poor rural area or could not afford treatment if required.
[166] Exhibit A6, 3 [16].
The Tribunal finds this consideration weighs in the Applicant’s favour, but only slightly so.
Impact on victims
There is no evidence about the impact of a decision in this matter on the victim of the Applicant’s offending, or the victim’s family. The Tribunal finds that cl 9.3 of the Direction is not enlivened and carries neutral weight.
Links to the Australian community
Clause 9.4 of the Direction provides that decision-makers must, reflecting on the principles at cl 5.2, have regard to cl 9.4.1 relating to the ‘Strength, nature and duration of ties to Australia,’ and cl 9.4.2 relating to ‘Impact on Australian business interests.’ In terms of the latter, the Tribunal has considered the Applicant’s business plans with S1,[167] and residential building plans with S2.[168] There is no evidence, however, that a decision in this matter risks compromising the delivery of a major project or an important service in Australia such as to displace the presumption in the Direction. The Tribunal finds that cl 9.4.2 of the Direction is not enlivened and carries neutral weight.
[167] Exhibit A1, 9 [49].
[168] ASFIC, 10 [69] and Exhibit A1, 9 [47], [49]; 79 [15]; 90 [17].
Strength, nature, and duration of ties
The Applicant has made claims about his family relationships in Australia with Ms AM, Mr SG, and his broader ties to S1, S2, and their families.[169] Ms AM and Mr SG are on temporary visas and do not have a permanent right to remain in Australia. There is a Statutory Declaration from the Applicant’s sister dated 28 June 2020, who was then living in Australia on a Student Visa,[170] but has since returned to India.[171] Reference was made during the hearing to Ms AM’s sister who lives in Australia, but there is no statement from her. The interests of Ms AM, her sister, and the Applicant’s siblings do not fall within the meaning of cl 9.4.1(1) of the Direction and are not further considered.
[169] Exhibit A1, 8-9 [38]-[48].
[170] Exhibit R1, 109.
[171] Exhibit A1, 4 [13].
The Tribunal finds that:
(a)The Applicant lived in India for the first 25 years of his life and has spent a comparatively short six-year period living in Australia. This is not a case where the Applicant would be afforded a higher level of tolerance by virtue of having lived in Australia for most of his life or from a very young age.
(b)The Applicant committed a criminal offence less than two years after arriving in Australia and less weight is consequently placed on this consideration: cl 9.4.1(2)(a)(i) of the Direction.
(c)The Applicant’s ties to the Australian community are relatively limited. The Tribunal accepts the close nature of his friendship with S1, S2 and their families, but the effect of visa refusal on them is emotional. Their other evidence about disrupted business or house-building plans is less persuasive.
In terms of a positive contribution to Australia, the Applicant refers to employment, a ‘long history of volunteering…donating blood and plasma as well as…time and money to’ several charities.[172] The Tribunal has considered the following:
(a)$20 donation to the Community Enterprise Foundation on 3 January 2020,[173] and $50 donation to the same organisation on 7 January 2020;[174]
(b)$20 donation on a regular contribution plan with the Salvation Army commencing on 14 June 2020. There is no evidence in the form of bank statements to confirm this has continued during the last 18 months;[175]
(c)$25 donation to Sikh Volunteers Australia on 31 October 2021;[176]
(d)$20 donation to UNITED SIkHS (sic) on 2 November 2021;[177]
(e)$15 donation to Heart Research Australia on 12 November 2021; and
(f)Nine blood or plasma donations as of November 2021.[178]
[172] ASFIC 10 [71].
[173] Exhibit A1.
[174] Ibid.
[175] Exhibit R1, 107; 163-4.
[176] Exhibit A1.
[177] Ibid.
[178] Ibid.
The Tribunal has placed some weight on the Applicant’s relatively modest positive contributions to the Australian community. The context of his offending, however, affects the weight that can be placed on his work as a taxi driver.
The Tribunal finds this consideration weighs slightly in favour of revocation.
Additional considerations
The Tribunal does not consider it necessary to include ‘other considerations’ under the non-exhaustive list enabled by cl 9(1) of the Direction.
CONCLUSION
The Applicant does not pass the character test. In considering whether the discretion under s 501(1) of the Act to refuse the visa should be exercised, the Tribunal has applied the Direction to the specific circumstances of this case. The Tribunal sees no reason to depart from the guidance in the Direction that greater weight ‘should generally be given’ to the primary considerations than other considerations.
The Applicant committed sexual assault against a stranger relatively soon after arriving in Australia. The totality of his offending and other conduct is very serious. His recidivism risk is low but real. A concerning feature of his conduct is that four years after his offending he continues to try and deflect blame onto his victim. Notwithstanding other positive features of his application, the Australian community would expect his visa application to be refused.
The Tribunal accepts the Applicant has developed a relationship with S1, S2 and their families, but does not play a parental role for their infant children. The general claims he makes about the children’s interests arise from his broader friendship with their parents.
The Applicant has made some contribution to the community through work, and donations. His community ties are quite limited, although the Tribunal accepts S1, S2 and their families would be saddened by a visa refusal decision.
Australia’s non-refoulement obligations are not enlivened by the Applicant’s general, speculative, and overly pessimistic claims. The impediments confronting him in re-establishing the life he lived in India to the age of 25 are not significant.
The Tribunal finds the discretion under s 501(1) of the Act should be exercised to refuse the Applicant’s visa. That is because the primary considerations Protection of the Australian community and Expectations of the Australian community, considerably outweigh the combined weight given to the primary consideration Best interests of minor children and the other countervailing considerations.
DECISION
It follows that the Tribunal affirms the reviewable decision.

I certify that the preceding 190 (one hundred and ninety) paragraphs are a true copy of the written reasons for the decision herein of Senior Member A. Nikolic AM CSC

…………[sgd]……………………….
Associate
Dated: 4 January 2022

Dates of hearing: 15 and 16 December 2021

Counsel for Applicant:

Solicitors for the Applicant:

Mr Dushan Nikolic

Carina Ford Lawyers

Advocate for the Respondent: Ms Samantha Liddy

Solicitors for the Respondent: Sparke Helmore Lawyers

Dates of hearing:	15 and 16 December 2021
Counsel for Applicant: Solicitors for the Applicant:	Mr Dushan Nikolic Carina Ford Lawyers
Advocate for the Respondent:	Ms Samantha Liddy
Solicitors for the Respondent:	Sparke Helmore Lawyers