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

[2021] AATA 60

Singh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 60 (19 January 2021)

Division:GENERAL DIVISION

File Number:          2020/7076

Re:Harpreet Singh

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A. Nikolic AM CSC

Date of Decision:               19 January 2021

Date of Written Reasons:      28 January 2021

Place:Melbourne

The Tribunal sets aside the reviewable decision and in substitution decides not to refuse the Applicant’s application for a Subclass 189 Skilled – Independent (Permanent) (Class SI) Visa.

[sgd]........................................................................

Senior Member A. Nikolic AM CSC

MIGRATION – visa refusal – citizen of India – Skilled Independent (Permanent) (Class SI) Visa – whether Applicant passes s 501(6)(d) of character test – whether Applicant poses a risk of harm to the Australian community –  criminal offending of limited duration eight years ago – no convictions recorded –  no reoffending – consideration of Ministerial Direction No. 79 – decision set aside

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Migration Act 1958 (Cth)

CASES

Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65
BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104
Frugtniet v Australian Securities and Investments Commission (2019) 93 ALJR 629
Hughes v The Queen [2017] HCA 20
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567
Negri v Secretary, Department of Social Services (2016) 246 FCR 1
PQSM v Minister for Home Affairs [2019] FCA 1540
Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

SECONDARY MATERIALS

Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501C

Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth)

REASONS FOR DECISION

Senior Member A. Nikolic AM CSC

28 January 2021

INTRODUCTION

1. The Applicant, Mr Harpreet Singh, has asked the Tribunal to review the decision to refuse him a Skilled - Independent (Permanent) (Class SI) Visa (visa refusal decision). This decision was made by a Ministerial delegate on 24 September 2020 under s 501(1) of the Migration Act 1958 (Cth) (the Act).[1] The delegate relied upon the criterion at s 501(6)(d)(i) of the Act, in that if the Applicant were allowed to remain in Australia, there is a risk he would engage in criminal conduct in Australia.[2]

   [1] Exhibit R1, 97-103.

   [2] Ibid, 10 [5].

2. The hearing was held in Melbourne on 18 and 19 January 2021, with parties appearing by audio-visual link consistent with the Tribunal’s COVID-19 Special Measures Practice Direction. The Applicant was represented by Mr Aleksov of counsel instructed by Bardo Lawyers. The Minister was represented by Mr Ellison from the Australian Government Solicitor.

3. Following an adjournment, ex tempore reasons were provided, but on 20 January 2021 the Respondent requested a statement in writing of the reasons for decision. These are the reasons requested, which accord with the requirements of s 43 of the Administrative Appeals Tribunal Act 1975 (Cth). In providing them I have had regard to the decision of Bromberg J in Negri v Secretary, Department of Social Services (2016) 246 FCR 1, which considered the extent to which the Tribunal could elaborate upon its oral reasons when producing written reasons. His Honour stated at [27]:

   ‘...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).’

4. For the following reasons, the Tribunal sets aside the reviewable decision and in substitution decides not to refuse the Applicant’s application for a Subclass 189 Skilled – Independent (Permanent) (Class SI) Visa.

   BACKGROUND

5. The background to this matter is uncontentious:

   (a)The Applicant is a 31-year-old citizen of India who first arrived in Australia on 26 June 2007 as a 17-year-old.[3] He has since held several temporary student and graduate visas;[4]

   [3] Ibid, 87.

   [4] Ibid, 87

   (b)Between 2013 and 2014 the Applicant completed undergraduate and postgraduate qualification in architecture and design. He has worked for several periods as an architect[5] but currently works fulltime as an Uber driver as he undertakes additional study and seeks architect roles;[6]

   [5] Ibid, 75-78.

   [6] Ibid.

   (c)The Applicant has departed and returned to Australia on 17 occasions for periods of up to four months, returning most recently on 19 March 2020.[7] These visits have predominantly been to visit his parents who live and work in both India and the Middle East;

   [7] Ibid, 85-86.

   (d)During an approximately 15-month period in 2010 and 2011 the Applicant was in a romantic relationship, which ended because of his objectionable behaviour.[8] His
   ex-girlfriend took out an Intervention Order (IVO) in January 2012 prohibiting the Applicant from contacting or approaching her.[9] The Applicant subsequently breached the IVO by dropping off some of his ex-girlfriend’s possessions at her home, albeit while she was not present. A further breach occurred at a nightclub in the early hours of 27 April 2012. The Applicant approached his ex-girlfriend while intoxicated and grabbed her left wrist, purportedly to try and talk with her. She resisted and a security guard intervened. The Applicant struck the guard in the face with a beer bottle causing injuries, after which he was apprehended by other security guards, held until police arrived, and arrested.[10] A Nationally Coordinated Criminal History Check dated 4 March 2020 discloses two court appearances by the Applicant relating to these events: [11]

   [8] Exhibit R2, 148.

   [9] Ibid, 154-155.

   [10] Ibid, 178.

   [11] Exhibit R1, 19.

   (i)The first in the Magistrates’ Court of Victoria on 11 September 2012 to answer charges of Contravene Family Violence Final Intervention Order and Unlawful Assault, arising from the conduct involving his ex-girlfriend at the nightclub. He was found guilty of both charges without conviction and received a four-month Good Behaviour Bond until 10 January 2013; and

   (ii)The second in the Magistrates’ Court of Victoria on 19 July 2013 charged with Intentionally cause injury to the security guard.[12] He was found guilty without conviction and placed on a 12-month Community Corrections Order (CCO). He was also ordered to perform 100 hours of community work and pay $9,511.05 in compensation for medical expenses and lost wages to the security guard. It is uncontested that the Applicant fulfilled his CCO obligations by July 2014 and paid the required compensation.

   (e)On 10 June 2016 the Applicant applied for the visa that was refused in this matter;[13]

   (f)The Applicant met his current girlfriend in October 2016 and they subsequently travelled to India to meet his family.[14] They express an intention to move in together if the Applicant’s visa application is successful and have discussed marriage and children. The Applicant currently has no biological children but said he helps look after his girlfriend’s nephew;

   (g)On 5 April 2017 at approximately 6:45 am, Victoria Police responded to a report of an intoxicated male. On arrival at the scene they found the Applicant asleep in his vehicle with the engine running.[15] The Applicant was arrested for drunkenness and subsequently released with an infringement notice;[16]

   (h)On 10 June 2020, over seven years after his last court appearance, the Applicant was sent a Notice of Intention to Consider Refusal of his visa application.[17] He was invited to make representations and responded through his Migration Agent.[18] On 9 November 2020 the Applicant was notified that a delegate of the Respondent had refused his visa application;[19]

   (i)On 13 November 2020 the Applicant asked the Tribunal to review the visa refusal decision.[20]

   [12] Ibid, 184-186; 193-215.

   [13] Ibid, 71-82.

   [14] Ibid, 60-61; Exhibit A1 [44]-[46]; Exhibit A3 [2], [11].

   [15] Exhibit R2, 168.

   [16] Ibid.

   [17] Exhibit R1, 40-43.

   [18] Ibid, 44.

   [19] Ibid, 97-103.

   [20] Ibid, 1-6.

   LEGISLATIVE FRAMEWORK

6. Taken together, s 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) and
   s 500(1)(b) of the Act are the sources of the Tribunal’s jurisdiction to review visa refusal decisions.

7. Section 501(1) of the Act is one of several discrete powers conferred under s 501. It provides that the Minister ‘may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.’ The character test is defined in s 501(6) of the Act. Relevantly, s 501(6)(d)(i) of the Act provides 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 the person would… engage in criminal conduct in Australia.’

   Direction No. 79

8. 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. Guidance in exercising the discretion about whether to refuse or not refuse a visa application is found in Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction). Section 499(2A) of the Act mandates that the Tribunal must comply with the Direction.[21]

   [21] BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104, at [9]; PQSM v Minister for Home Affairs [2019] FCA 1540, [22].

9. Clause 6.1 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 6.1(2) states:

   …

   (2) Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test… Where the discretion to refuse to grant…a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.

10. By way of general guidance, cl 6.2 of the Direction provides:

    (1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

    (2) …

    (3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse…a non-citizen’s visa under section 501… The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B…of this Direction.

11. The principles referred to under the heading ‘General Guidance’ are reproduced below and constitute a framework within which decision-makers apply relevant considerations:

    6.3      Principles

    (1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

    (3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

    (5) Australia has a low tolerance of any criminal or other serious conduct by people 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 in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    (6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

    (7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

12. Clause 7(1)(a) of the Direction provides that in cases relating to visa refusal,
    decision-makers must take into account the considerations in Part B of the Direction. If an applicant fails the character test, the following primary considerations at cl 11(1) of the Direction must be applied to the specific circumstances of the case:

    (a)  Protection of the Australian community from criminal or other serious conduct;

    (b)  The best interests of minor children in Australia; and

    (c)   Expectations of the Australian community.

13. Clause 12(1) of the Direction requires the following non-exhaustive list of other considerations to be applied, noting the erroneous reference in this section of the Direction as currently promulgated to ‘cancel a visa,’ which should instead read ‘refuse a visa:’

    (a)  International non-refoulement obligations;

    (b)  Impact on family members;

    (c)   Impact on victims; and

    (d)  Impact on Australian business interests.

14. Clause 8(2) 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.’

15. Clause 8(3) of the Direction states that ‘Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.’

16. Clause 8(4) states that ‘Primary considerations should generally be given greater weight than the other considerations.’

17. Clause 8(5) states that ‘One or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461 at [57] and [78], in relation to a previous equivalent ministerial direction:

    [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.

18. More recently in Minister for Home Affairs v HSKJ [2018] FCAFC 217, the Full Court held at [35] that one of the ‘other’ considerations is capable of ‘outweighing a primary consideration,’ which turns on the specific circumstances of each case.

19. Annex A, section 2 of the Direction is titled ‘Application of the character test’. Clause 6.1 of that section relevantly states:

    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.

    ISSUE TO BE RESOLVED

20. As Kiefel J stated in Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [133], the Tribunal’s review function ‘should be identified with some precision, for it marks the boundaries of the review.’ In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033, Rares J held at [68], that the Applicant’s failure in that matter ‘to satisfy the delegate about the criterion in s 501(6)(d)(i),’ meant that this ‘ground confined the issues on…review.’ In Frugtniet v Australian Securities and Investments Commission (2019) 93 ALJR 629, the High Court reasoned at [51]: ‘The AAT must address the same question the primary decision-maker was required to address.’[22]

    [22] Per Bell, Gageler, Gordon and Edelman JJ. See also 633 [14]-[15] per Kiefel CJ, Keane and Nettle JJ.

21. Given that the sole integer underlying the delegate’s visa refusal decision in the present matter is s 501(6)(d)(i) of the Act, this similarly confines the Tribunal’s review task to that specific ground. At the time of making its decision, therefore, the Tribunal must decide whether the Applicant fails the character test in s 501(6)(d)(i) of the Act. If not, then the reviewable decision is set aside because the impetus for cancellation under s 501(1) is not enlivened. If the Applicant fails the character test, then the Tribunal must make a supervening determination whether the discretion under s 501(1) of the Act to refuse the visa application ought to be exercised. The considerations at Part B of the Direction would then be applied to the specific circumstances of this case.

    CONSIDERATION: DOES THE APPLICANT FAIL THE CHARACTER TEST?

22. In Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65 (Akpata), the Full Court of the Australian Federal Court (FCAFC) explained the nexus between the character test and Parliament’s intent at [105]:[23]

    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; associate with criminals; have a history including an immediate history of criminal conduct or general conduct indicating bad character; are a significant risk of engaging in criminal conduct or undesirable conduct (s 501(6)(d)), 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.

    [23] Lander J (Carr and Sundberg JJ concurring).

1. It is noteworthy that since Akpata the reference to the word ‘significant’ is no longer used in conjunction with assessing risk under s 501(6)(d)(i) of the Act. 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…remain in Australia,’ would engage in criminal conduct.[24] It is a
   

   [24] Direction, Annex A, Section 2 cl 6(2).

   [25] Ibid, cl 6(3).

   future-focussed test in which it is insufficient to find the Applicant has engaged in criminal or other objectionable conduct in the past. There must be a risk of the Applicant engaging in criminal conduct ‘in the future.’[25]

2. In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, Davies J relevantly explored the treatment of past convictions at [425]:

   … If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.

3. In Minister for Immigration and Ethic Affairs v Guo (1997) 191 CLR 559 (Guo), the majority observed at [56]-[57]:

   The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur…

   
   57. Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events… 

4. In Hughes v The Queen [2017] HCA 20, Nettle J observed at [154] that evidence of a past offence ‘is not, of itself, significantly probative’ of the committing of another offence:

   Without more, it establishes only that the accused is the kind of person who has committed an offence. To make evidence of previous offending or misconduct significantly probative of a subsequent offence there needs to be something more about the nature of the offences or the circumstances of the offending in each case…

5. More recently 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.

6. The FCAFC explained, in the subsequent appeal against Sabharwal,[26] 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.

   [26] Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [2].

   Evidence before the Tribunal

7. The following materials were tendered into evidence during the hearing:

   (a)Documents lodged by the Respondent titled ‘G Documents’ numbering 103 pages;[27]

   [27] Exhibit R1.

   (b)Documents lodged by the Respondent titled ‘Supplementary G Documents’ numbering 236 pages;[28]

   [28] Exhibit R2.

   (c)Statutory Declaration of the Applicant numbering 53 paragraphs and dated 17 December 2020;[29]

   [29] Exhibit A1.

   (d)Statutory Declaration of the Applicant’s current girlfriend, Ms Tania Russo, numbering 16 paragraphs and dated 11 December 2020;[30]

   [30] Exhibit A3.

   (e)Report of Consultant Psychologist Mr Tim Watson-Munro numbering 16 pages and dated 21 December 2020;[31]

   (f)Statutory Declaration of the Applicant’s ex-girlfriend, who was a victim of his offending in 2012, numbering 11 paragraphs and dated 21 December 2020;[32]

   (g)Statutory Declaration of Mr John Gray, the Applicant’s former university lecturer, numbering six paragraphs and dated 31 December 2020;[33]

   (h)Statutory Declaration of the Applicant’s former employer, Mr Zvonko Orsanic, numbering seven paragraphs and dated 10 December 2020;[34]

   (i)Statutory Declaration of the Applicant’s current girlfriend’s mother, numbering seven paragraphs and dated 11 December 2020;[35]

   (j)Statutory Declaration of hostel operator, Father John Murphy, numbering six paragraphs and dated 9 December 2020;[36]

   (k)Statutory Declaration of the Applicant’s friend, Mr Rohan Pereira, numbering ten paragraphs and dated 19 December 2020;[37]

   (l)Statutory Declaration of the Applicant’s friend, Mr Nishit Joseph, numbering eight paragraphs and dated 19 December 2020;[38]

   (m)Statutory Declaration of the Applicant’s brother, Mr Manmit Singh, numbering eight paragraphs and dated 17 December 2020;[39] and

   (n)Statutory Declaration the Applicant’s counsellor, Mr Stephen Schmidtke, numbering seven paragraphs and dated 22 December 2020.[40]

   [31] Exhibit A2.

   [32] Exhibit A4.

   [33] Exhibit A5.

   [34] Exhibit A6.

   [35] Exhibit A9.

   [36] Exhibit A7.

   [37] Exhibit A10.

   [38] Exhibit A11.

   [39] Exhibit A12.

   [40] Exhibit A8.

   Witnesses

8. The following witnesses gave oral evidence at the hearing:

   (a)The Applicant;

   (b)Psychologist Mr Tim Watson-Munro;

   (c)Ms Tania Russo;

   (d)The Applicant’s ex-girlfriend, who was a victim of his offending in 2012;

   (e)Ms Lucia Russo;

   (f)Mr Rohan Pereira;

   (g)Mr Nishit Joseph; and

   (h)Mr Manmit Singh.

   Applicant’s evidence

9. In his oral evidence, the Applicant adopted his Statutory Declaration dated 17 December 2020 as true and correct. His oral evidence can be summarised as follows:

   (a)The Applicant said he started dating his ex-girlfriend in August 2010 after meeting her through a dating website. A year-long romantic relationship followed but broke down in November 2011. He recalled they planned to travel to Europe together at the end of 2011, much of which the Applicant said he booked and paid for. Approximately a week prior to departure, however, the Applicant said his ex-girlfriend stopped taking his calls. He suspected she wanted to end the relationship and no longer wished to travel overseas together;

   (b)The Applicant attended his ex-girlfriend’s home on 15 November 2011, recalling it was late at night after he had consumed ‘a few drinks.’ She lived with her parents and the purpose of his visit was to see if their relationship would continue and perhaps salvage their overseas travel arrangements. He said a discussion ensued with his ex-girlfriend and her parents, but when it became clear she was ‘not willing to engage’ and wanted to end the relationship, he got ‘very emotional’ and the discussion ‘became argumentative, loud and heated.’ He said this was because she had not given any previous indication about ‘cancelling these plans and bookings.’ The Applicant said his ex-girlfriend called the police and he left when they directed him to do so. The Applicant denied conduct attributed to him by his ex-girlfriend;[41]

   [41] Exhibit R2, 148.

   (c)The Applicant said he and his ex-girlfriend subsequently travelled to Europe on separate itineraries. He contacted her once by email to see if she would go to dinner with him, but she declined, and he did not contact her further. The Applicant said that on return to Australia he became aware his ex-girlfriend had taken out an IVO against him. He collected the IVO from the police station and understood its requirements but ‘foolishly decided to drop off’ his ex-girlfriend’s personal items at her home. Even though she was not home at the time, this constituted a breach of the IVO. He received a diversion from police because it was his first breach. He recalled being young and naïve, having lived alone since his arrival in Australia and claimed not to fully understand the serious penalties arising from such conduct. He explained that the relationship with his ex-girlfriend was his first love and he thought they may have a future together. The end of their relationship accentuated his depression and loneliness;      

   (d)The Applicant said he did not have clear recall of the events at a night club on 27 April 2012, because of the passage of time and heavier drinking after the relationship with his ex-girlfriend ended. This was one of those occasions and he recalled consuming up to six drinks of spirits and ‘some beers’ before noticing his ex-girlfriend and some of her friends at the venue around midnight. He was previously unaware she would be attending. He wanted to talk with his ex-girlfriend to see if ‘maybe we could work things out.’ He admitted grabbing her on the wrist to ‘catch her attention’ and see if she would talk with him in a quieter location. He could not recall if her friends tried to pull her away. The Applicant agreed he knew he could not approach his ex-girlfriend at the nightclub, because the IVO was Court-ordered, and he knew penalties would be enforced in the event of a breach;

   (e)As stated above, the Applicant had imperfect recall of the events that followed, but said he felt someone pull on the back of his shoulder while he was holding his ex-girlfriend’s wrist and trying to talk to her. He claimed that because of his drunkenness, loud music and strobe lights, the next thing he recalled was a person falling backwards and someone stating in a loud voice ‘catch him.’ He did not remember striking the security guard but accepted he did. He tried to run in the ‘fear of the moment,’ but was intercepted by security guards who dragged him upstairs. He recalled being ‘afraid, crying,’ having his hair pulled and being punched. The police arrived about five or ten minutes later and he was arrested;

   (f)The Applicant recalled trying to call a lawyer at the police station but was unsuccessful. He made a statement, was released, and subsequently went home to sleep off his inebriation. He did not know what he meant when initially telling police he had ‘retaliated’ at the club,[42] or why he had not mentioned the interactions with his ex-girlfriend, stating this was around 3:00am and he was drunk and confused. On waking at home, he felt ‘very sad’ and ‘cried a lot’ stating that he realised he had done a ‘foolish thing.’ He was interviewed by police four or five weeks later, during which he claimed that he was scared, had no legal representation, and ‘did not know exactly what to say.’ He agreed that he was untruthful in telling police he could not remember trying to speak to his ex-girlfriend, or whether he tried to grab her, or how much he had to drink;   

   [42] Ibid, 226.

   (g)The Applicant heard nothing for six or seven months until police told him he would be charged. He had not intended to cause the security guard injury but accepted he had. He pleaded guilty and was convicted, but still claimed not to have a ‘recollection of exactly what happened’ due to drunkenness. His ex-girlfriend sought extensions of the IVO, which finally expired on 31 January 2015.[43] The Applicant agreed he wrote a Statutory Declaration in August 2017 in support of his visa application, and said he had tried to recall the 2012 events to the best of his ability;[44]

   [43] Exhibit R1, 21.

   [44] Ibid, 27.

   (h)The Applicant said the events at the nightclub were a ‘wakeup call’ that caused him to take stock of his life. He moved to a shared house, undertook counselling with Mr Schmidtke, and focussed more on his studies. He found the counselling ‘tremendously helpful’ in addressing his depression, loneliness, and approach to relationships. He learned that reliance on alcohol was not an appropriate way to deal with life’s problems. He still drank alcohol, but ‘very infrequently’ and usually one or two glasses of wine with dinner. He stopped going to university parties and his grades improved. He completed undergraduate and postgraduate qualifications in architecture, and undertook volunteering in a respected academic’s office during the last year of his degree, which subsequently led to paid work as an architect;

   (i)The Applicant accepted responsibility for his offending, stating it was an isolated event. He acknowledged that alcohol misuse was a contributing factor, but he had addressed this through counselling and learned about ‘correct support networks’ to help him deal with difficult emotional situations. He now considers himself more mature, stable, and with supportive relationships;

   (j)The Applicant was asked about a Victoria Police record dated 4 May 2014 regarding an incident with a subsequent girlfriend.[45] He said they had been in a relationship for two years and the police record correctly stated it was he who called police to attend after she showed up uninvited, refused to leave, and hung his phone up when he tried to call police. The Tribunal accepts it was the Applicant who called police. The Applicant disagreed there had been any violence between him and this former girlfriend and there is no evidence of any subsequent charges against him;

   [45] Exhibit R2, 166.

   (k)The Applicant was asked about a Victoria Police record dated 2017, where police found him asleep in his car with the engine running. The Applicant said he had been at a friend’s place and was ‘tipsy.’ Rather than drive he decided to sleep in his car and turned the engine and heater on because it was cold. He disagreed that he was heavily intoxicated and said a policeman only gave him an infringement notice; 

   (l)The Applicant said he has been in a committed relationship with his current girlfriend, Ms Tania Russo, since 22 October 2016. He met her a ‘couple of months’ after applying for the visa that was refused in this matter. He and Ms Russo travelled to India where she met his parents and other family members. They have discussed plans for a future life together, which is on hold due to the Applicant’s continuing visa uncertainty. Ms Russo currently lives with her parents while the Applicant lives in rented accommodation with his brother about 20 minutes away. He described the relationship with Ms Russo in his written evidence as ‘an integral part of our mental and physical well-being.’[46]

   (m)If his visa status is confirmed, he and Ms Russo intend on moving in together. If his application is unsuccessful, he said this would bring ‘great grief’ to Ms Russo and their families and friends.[47] In his 2020 Personal Circumstances Form the Applicant made no reference to any biological children nor invoked the interests of any other minor child within the meaning of the Direction.[48] In his most recent Statutory Declaration and oral evidence, however, he stated that he helps look after Ms Russo’s nephew, who is predominantly in the care of Ms Russo’s mother. He said that he helps Ms Russo and her mother with ‘handyman work’ and that when he is at their home, the child is happy to see him. They sometimes took the child to lunch and other activities like the park. The Applicant said the child’s mother was currently dealing with medical issues, which imposed greater caring responsibilities on his girlfriend and her parents, which he happily contributed to;

   (n)The Applicant is currently a full-time Uber driver, while pursuing work as an architect. He said employment as an architect is limited because of the COVID-19 Pandemic. He lives with his younger brother who has finished university studies and aspires to live permanently in Australia. He felt responsible for his much younger brother and plays an almost paternal role;

   (o)The Applicant made no non-refoulement claims during his oral evidence. The fears he expressed about returning to India have more to do with diminished opportunities and re-establishing himself in a country he is no longer familiar with after growing up in Kuwait. He claimed that he has assimilated into the Australian community through study, work and relationships:

   …I have assimilated strongly into the Australian culture over the years. I studied here, I also worked/work here. I work full time as an Uber Driver at the moment. It is my only source of income. Was I to be deported to India, my ability to earn a living would be totally incapacitated. I fear of what may happen to me…at this stage of my life and have no way of sustaining myself in a culture that I don’t fully understand.[49]

   (p)The Applicant stated he has overcome his depression, and in his written evidence said he had no diagnosed medical or psychological conditions.[50] When asked why the Tribunal should be confident he would not reoffend, the Applicant said his circumstances were now vastly different. He was no longer living alone, his alcohol use is controlled, and he did not wish to again put himself in a situation where he risked his ability to remain in Australia;

   (q)After his ex-girlfriend gave evidence, the Applicant was recalled so issues raised in his ex-girlfriend’s testimony could be put to him. He denied the unwanted behaviour referred to by his ex-girlfriend, except for sending her an email while they were overseas to see if she would meet him for dinner so he could ‘make it up to her.’ She declined and he made no further approach. He said at this time there was no IVO in place precluding contact between them.  

   [46] Exhibit R1, 61.

   [47] Ibid.

   [48] Ibid, 63-65.

   [49] Ibid, 69.

   [50] Ibid, 68.

   Evidence of Ms Tania Russo

10. The witness adopted her Statutory Declaration as true and correct. She has known the Applicant since 2016 and considered him calm in thought and speech. The witness has seen the Applicant in stressful situations in the past, which he handled in a measured and logical way. The continuing uncertainty about his visa status had caused him stress, but he approached this by ‘living in the moment and trying to take every day as it comes.’

11. The witness said the Applicant drinks alcohol, usually a glass of wine with dinner, but not to manage stress. He shared information about his past offending with her at their second or third meeting, which she said occurred when he was ‘a lot younger.’  He had told her about the IVOs with his ex-girlfriend and that he ‘accidentally hit a bouncer.’ The witness said the Applicant had matured since 2012 and now had people he was comfortable with to talk to if needed. She is aware of the incident where he was found asleep in his car but was unaware of any past occasion where he could not drive a motor vehicle due to being affected by alcohol.

1. The witness said they intended to move in together if the Applicant’s visa application is successful. They had discussed plans for a life together, with marriage and children ‘on the agenda.’ They also had mutual interests in house design and aspired to build a home to live in. If the Applicant’s visa application was not successful, the witness said she would relocate with him to India. This would result in significant practical and emotional difficulties like not being able to support her mother, sister and nephew.

   Evidence of Applicant’s ex-girlfriend

2. The witness adopted her Statutory Declaration as true and correct. When asked how it came to be that she lodged a statement in this matter, she said the Applicant contacted her parents and left his lawyer’s number. She had ‘followed up with his lawyer’ but has had no contact with the Applicant.   

3. The witness recalled the argument at her home in November 2011 that caused her to call police and take out an IVO. When asked if there had ever been any violence between her and the Applicant she responded: ‘arguing and yelling but no physical violence…He’s not been physically violent to me – no.’ When asked during cross-examination whether he had previously slapped her, the witness responded: ‘No.’ When asked about the contents of her police statement in May 2012 containing that claim,[51] the witness said she could not recall the Applicant ever slapping her or telling police that he slapped her. She did recall the Applicant returning some of her personal belongings from their relationship in early 2012, which he left on her front doorstep while she was not at home. She was not previously aware this constituted a breach of the IVO but stated it did not make her feel threatened.

   [51] Exhibit R2, 148.

4. The witness claimed that in the context of their relationship ending the Applicant threatened to provide private photos they ‘shared while together’ to her parents. She agreed this purported threat was not been acted upon.  The witness claimed that she and her parents had felt intimidated by the Applicant during the argument at her home in November 2011. When asked if any threats had ever been made to her or her parents, the witness responded: ‘I can’t recall.’  While in Europe she claimed the Applicant knew her itinerary and sent her an uninvited email wanting to take her to dinner to apologise, which she declined and ‘nothing eventuated.’ She claimed that at some stage after their relationship ended, she was ‘pretty sure’ the Applicant changed the password on her email account, which she had previously shared with him. She also claimed to have observed him in a car across the road from her home, stating she reported this to police who gave her ‘no feedback.’ She mentioned it to the magistrate when requesting an extension of the IVO.

5. The witness’s oral recollections about the nightclub incident were at times inconsistent with her statement to police at the time. She explained: ‘it was so long ago; I’ve put it behind me.’ She married and had a child since her relationship with the Applicant ended eight years ago. When pressed about her recollections from the nightclub incident, the witness claimed her friends told her the Applicant was at the nightclub, but she ‘did not recall seeing him’ and he did not approach or touch her. Others told her he was ‘involved in altercation with a bouncer.’ When asked about other evidence that the Applicant had grabbed her wrist, the witness could not recall this, again stating it happened a long time ago. When referred to her statement to police,[52] the witness said this refreshed her memory, stating: ‘I think I was going to the bathroom and he grabbed my hand – that’s all I remember.’

   [52] Ibid.

6. The witness said the Applicant had ‘made a mistake when he was really young and got into a lot of trouble for it.’ She thought losing his ability to stay in Australia all these years later constituted ‘double punishment.’ She said her actions in submitting a statement and giving oral evidence were conscience-driven, because she did not want her ‘actions to ruin someone else’s life.’  

   Evidence of Lucia Russo

7. The witness adopted her Statutory Declaration as true and correct. She is married and has two adult daughters and a grandchild sharing her home. The grandchild’s mother is dealing with some medical issues and many family members and friends pitch in to help with the child’s care. This includes the Applicant and Ms Tania Russo, who take the child to the park. The witness described the Applicant as ‘polite, very helpful, and level-headed.’ She was aware of his offending against an ex-girlfriend and a bouncer, which she thought may have been because he ‘had a couple of drinks.’ She had never seen anything other than politeness while the Applicant has been in a relationship with Ms Russo.   

   Evidence of Rohan Pereira

8. The witness adopted his Statutory Declaration as true and correct. He has known the Applicant since childhood, and they are friends. They lived together for a time after arrival in Australia and communicate regularly.  He said the Applicant only has an alcoholic drink or two socially and ‘doesn’t drink a lot.’ He had never known him to be aggressive when he drinks. The witness has some limited knowledge about the nightclub incident, which he believed had resulted in ‘some kind of injury’ to a bouncer. He had asked the Applicant about it, but he could not remember all the details.

   Evidence of Nishit Joseph

9. The witness adopted his Statutory Declaration as true and correct.  He and the Applicant met in 2008 while living in a hostel. They routinely meet three or four times a year for dinner to try out new restaurants and communicate more frequently through texts and telephone calls. He and the Applicant ‘drank a little bit’ while living at the hostel, particularly on weekends. This could include a pint or two and during a ‘big night’ at the hostel, between five and seven drinks. There had been one or two occasions when they got ‘fairly drunk.’ Over the years their alcohol use has moderated and he could not recall seeing the Applicant drink alcohol at all during the last three or four years.

10. The witness has limited information about the Applicant’s offending at the nightclub in 2012. He was told that the Applicant tried to talk to his ex-girlfriend while drunk. She was not happy about this, and then the Applicant ‘hit a person with a bottle and injured them,’ after being ‘startled.’

    Evidence of Manmit Singh

11. The witness adopted his Statutory Declaration as true and correct. He came to Australia in 2015 to study. The witness said he is on a Bridging Visa and had recently applied for a Temporary Graduate Visa after completing his university studies. The latter would allow him to remain in Australia for two years, but he aspired to make a permanent life for himself in Australia with the support of the Applicant.

12. The witness said he has lived with the Applicant for the last five years, initially in a hostel and then in the house they have occupied for about a year. He said the Applicant works a lot as a driver and therefore does not drink much alcohol. He might have a beer on a hot day and the witness could not recall the Applicant drinking to excess. The witness did not have a ‘deep understanding’ of the Applicant’s offending because he was not in Australia in 2012. He knew it involved an ex-girlfriend and a fight at a nightclub, but only had ‘minimal information.’

    Other statutory declarations 

13. The Tribunal has considered the Statutory Declarations of those who did not give oral evidence, namely the Applicant’s parents,[53] Mr Stephen Schmidtke,[54] Father John Murphy,[55] Mr John Gray[56] and Mr Zvonko Orsanic.[57]  The collective thrust of this evidence is that the Applicant’s offending was out of character and he deserves a second chance to remain in Australia. The authors also reflect on the Applicant’s positive personal attributes, academic and work achievements in Australia. This evidence was unchallenged by the Respondent and the Tribunal accepts it.

    Expert evidence

    [53] Exhibit R1, 54.

    [54] Exhibit A8.

    [55] Exhibit R1, 47; Exhibit A7.

    [56] Exhibit A5.

    [57] Exhibit R1, 48-49; Exhibit A6.

    Rehabilitation and counselling

14. The Tribunal notes the Applicant completed ten professional counselling sessions with Mr Stephen Schmidtke of Life Supports between 2012 and 2013.[58] In a Statutory Declaration, Mr Schmidtke reports on a subsequent meeting with the Applicant on 1 July 2020, which reaffirmed in his mind the positive outcomes of their past counselling. Mr Schmidtke again emphasised that the Applicant’s offending was ‘out of character’ and he had learned lessons from those experiences that have been incorporated into his daily life. Mr Schmidtke considers the Applicant ‘is not a person who is likely to reoffend.’

    [58] Exhibit R1, 36-37; 51; Exhibit R2, 157-158.

15. The Tribunal notes the report of Consultant Psychologist Mr Tim Watson-Munro dated 21 December 2020, which noted the Applicant’s social and psychological history, past relationships, offending and other issues. Mr Watson-Munro administered the Beck Depression Inventory and concluded the Applicant is experiencing some anxiety about his current circumstances but is not suffering any symptoms of Depressive Disorder. Mr Watson-Munro also utilised the Hare Psychopathy Checklist – Revised (PCL_R) to determine the Applicant’s recidivism risk. This disclosed that the Applicant is pro-social in orientation, has stable employment, does not use drugs, is in supportive relationships with his girlfriend and brother, and has developed insight and remorse about his past offending. Mr Watson-Munro stated that the Applicant’s ‘risk to the Australian community in terms of reoffending is low.’[59]

    [59] Exhibit A2, 9 [6].

16. In his oral evidence, Mr Watson-Munro adopted his report. He recalled undertaking two consultations with the Applicant totalling approximately two hours and had also consulted documents provided from the Applicant’s ‘visa refusal file.’ Mr Watson-Munro said they had discussed the Applicant’s offending, but he had not ‘drilled down in great detail’ because the Applicant acknowledged his culpability and the seriousness of what he had done. He considered the Applicant was in a ‘fairly unstable frame of mind’ at the time of his offending, which included ‘drinking [alcohol] heavily’ as a form of self-medication. The Applicant was also lonely because he had come to Australia as a teenager and had no family support. Those circumstances had since changed, and the Applicant said he is no longer abusing alcohol or reliant on it to ease tension.

17. Mr Watson-Munro said that in assessing the Applicant’s risk of reoffending, he reviewed the applicable dynamic and static risk factors. He agreed the PCL_R was not a specific actuarial instrument relevant to risk of recidivism, and that such instruments were useful, but his approach also encompassed considerable clinical judgement over many decades. He stated the Applicant has been in a committed and stable relationship for several years, worked fulltime, had no further trouble with the police, and there was no evidence he had ‘acted impulsively or in an anti-social manner as a result of alcohol’ since the 2012 incident. He was not aware of the Victoria Police report that the Applicant was found asleep in his car with the engine and heater running but said this did not change his ‘low’ risk assessment given the isolated nature of this incident some four years ago.

    FINDINGS: DOES THE APPLICANT FAIL THE CHARACTER TEST?

18. Crimes of violence, including breaching an IVO and striking a security guard in the face with a bottle while intoxicated, are serious acts regardless of the sentence imposed.

19. The Tribunal has some concerns about the ‘imperfections’ in the Applicant’s evidence, which was conceded by Mr Aleksov during closing submissions. That is perhaps unsurprising given the involvement of alcohol and the potentially dire criminal and visa consequences confronting the Applicant after being arrested in the early hours of the morning some eight years ago. The Tribunal considers, however, that his subsequent pleas of guilty and compliance with court orders weigh more persuasively in the Applicant’s favour than responses to police immediately after arrest. The Tribunal also had some concerns about the evidence of the Applicant’s ex-girlfriend, which at times conflicted with claims she made to police in the context of seeking an IVO in 2012 and following the nightclub incident. It can again be accepted, however, that memories from eight years ago might be imperfect. The Tribunal is also concerned about a police report, over three years ago, where the Applicant received an infringement notice after being found asleep in his car with the engine running. The Tribunal does not accept the Applicant’s evidence that he was only ‘tipsy’ after one or two glasses of wine. He likely had more to drink and was sleeping it off in his car while trying to stay warm. This was a wiser decision than choosing to drive while affected by alcohol. Moreover, this single report over three years ago does not support a reliable conclusion that the Applicant had returned to the heavy drinking of his past, thereby increasing his recidivism risk. The overwhelming weight of evidence, which the Tribunal accepts, is that the Applicant has matured and substantially moderated his past drinking habits.

20. It is clear from the evidence that some of the Applicant’s conduct in 2011 and 2012 was immature, objectionable, and criminal. It can be accepted that as someone who came to Australia as a 17-year-old, he was immature, naïve, inexperienced in relationships, and absent familial support, all of which contributed to some of his subsequent conduct. It is noteworthy that the relationship with his ex-girlfriend was the Applicant’s first love and ended in a volatile manner. He was clearly not as focussed as he should have been on the potentially serious penalties arising from approaching her or her home while an IVO was in place. The end of this relationship was emotionally very difficult for the Applicant, which may explain but does not excuse his subsequent foolish and immature behaviour. That included drinking too much, including on the night of the incident at the nightclub, which resulted in physical injury to another person.

21. The Tribunal makes the following findings:

    (a)There is no evidence that the Applicant has committed other serious offences in Australia or overseas. Given the Court’s decision not to record convictions or impose a custodial sentence, his offending in 2012 cannot be regarded as being at the more serious end of violent crimes;

    (b)The Applicant’s offending was relatively brief, isolated, alcohol-fuelled, impulsive, and out of character. It occurred eight years ago in the context of a relationship breakdown. Alcohol misuse was clearly a factor leading to the unwanted approach to his girlfriend at the nightclub and when striking the security guard;

    (c)Despite being intoxicated when striking the security guard, the Applicant’s immediate reaction is recorded as him ‘screaming sorry,’ and stating: ‘I don’t know why I did it.’ This evidence is from the security guard he struck and an initial police responder.[60] He subsequently pleaded guilty at the earliest opportunity, did not dispute his culpability, expressed contrition for the harm he caused, and complied with Court orders. This includes paying court-ordered restitution to his victim,[61] and completing his CCO without incident.[62] The Applicant also wrote a letter of apology to the security guard,[63] and attended multiple counselling sessions with Life Supports to address anger and alcohol issues.[64] It is noteworthy that his ex-girlfriend who was a victim of his offending in 2012 has supported his application to remain in Australia;

    (d)The Applicant has not repeated his violent conduct during the intervening eight years. For six of those years he was not under any conditional liberty arrangements following the completion of his CCO in July 2014 and the ending of an IVO on 31 January 2015;[65]

    (e)The Applicant’s presentation and evidence at the current hearing reflects developed insight and maturity. His situational circumstances have changed considerably since 2012 when he was aged 23. The Tribunal considers his recidivism risk is mitigated by several protective factors including:

    (i)Completion of undergraduate and postgraduate qualifications in architecture since his offending. He has worked for several employers as an architect, is undertaking further research and business development efforts. He currently has full-time employment as a driver as he deals with the consequences of his offending and attendant visa issues;

    (ii)The Applicant has been in a stable and committed relationship since October 2016. He and his girlfriend get on well with each other’s families. She is currently undertaking further education with the Applicant’s support and they plan to buy land and build a home together;

    (iii)The Applicant has almost parental responsibilities for his younger brother who has recently completed undergraduate studies in Australia and relies on the Applicant’s practical and emotional support. He and his brother plan to start a business together in Australia; and

    (iv)The Applicant has tendered supportive references from people who believe in him and have stood by him. The Tribunal accepts their collective evidence that the Applicant’s offending was out of character and he has no intention of repeating it.

    [60] Exhibit R2, 185.

    [61] Exhibit R1, 29-34.

    [62] Ibid, 35.

    [63] Ibid, 38-39.

    [64] Ibid, 36-37; Exhibit R2, 157-158.

    [65] Exhibit R1, 21.

22. The Tribunal is satisfied from the Applicant’s oral evidence that he understands any repeat of his violent conduct would likely end his plans to live, work and build a future in Australia. What he stands to lose constitutes a very strong disincentive to further offending. Given the totality of the circumstances, the Applicant’s offending in 2012 does not reflect determinatively on his character. He shows developed insight into his past misconduct, has matured, undertaken counselling, and applied difficult lessons to strengthen his motivation to live a law-abiding life. He now has greater stability in his life and is better placed to deal with any future relationship issues.

23. There is no persuasive evidence that the circumstances contextualising the Applicant’s past offending will reoccur. The expert evidence, which the Tribunal accepts, is that the Applicant constitutes a low risk of reoffending. He has demonstrated during the last eight years, including six years without being under any conditional liberty provisions, that he has the capacity and resolve to be a law-abiding and productive member of the community.

24. The Tribunal finds there is only a minimal or remote probability that the Applicant will engage in criminal conduct if allowed to remain in Australia. It follows that the Tribunal is satisfied he does not fail the character test by reason of s 501(6)(d)(i) of the Act, and the impetus for visa refusal under s 501(1) is not enlivened. It is therefore not necessary for the Tribunal to make a supervening determination about whether the discretion under s 501(1) of the Act should be exercised.

    DECISION

25. It follows that the Tribunal sets aside the reviewable decision and in substitution decides not to refuse the Applicant’s application for a Subclass 189 Skilled – Independent (Permanent) (Class SI) Visa.

I certify that the preceding  (fifty   eight paragraphs are a true copy of the written reasons for the decision of Senior Member A. Nikolic AM CSC

[sgd]………………………………….
Associate

Dated: 28 January 2021

Dates of hearing:	18 and 19 January 2021
Advocate for the Applicant:	Mr Angel Aleksov
Solicitors for the Applicant:	Bardo Lawyers
Advocate for the Respondent:	Mr Tom Ellison
Solicitors for the Respondent:	Australian Government Solicitor