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

Singh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4818 (30 November 2020)
Division:GENERAL DIVISION
File Number(s): 2020/0061
Re:Yasmeet Singh
APPLICANT

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

DECISION
Tribunal:Member Rebecca Bellamy
Date:30 November 2020
Place:Brisbane

The decision under review is affirmed.
..........................[SGD]..............................................
Member Rebecca Bellamy
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class BS subclass 801 partner (Residence) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – domestic violence – risk of re-offending – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
HZCP v Minister for immigration and Border Protection [2019] FCAFC 202
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member Rebecca Bellamy
30 November 2020
THE ISSUE BEFORE THE TRIBUNAL

The Applicant is a 38 year old citizen of India who relocated to Australia in 2009 at the age of 26.
On 3 December 2018, a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s Class BS Subclass 801 Partner Visa (“visa”) under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test and he was serving a full time custodial sentence. The Applicant subsequently made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”). On 3 May 2019, the Applicant elected to be removed to India pending the outcome of his request. On 19 December 2019, the Respondent decided not to revoke the cancellation.[1]
[1] Exhibit G1, section 501 G Documents, page 25.
The Applicant subsequently lodged an application for review in this Tribunal on 6 January 2020. The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
The hearing of this application proceeded on 28 and 29 May 2020. The Applicant gave evidence by video conference from India. He did not have legal representation, however I permitted his partner, “Ms L”, to assist him in the hearing via video conference. She was located in Australia. She also gave evidence. Ms L’s daughter gave evidence by telephone, as did a family friend of the Applicant in India. The Tribunal received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
The Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[2]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[3]
[2] [2018] FCAFC 151.
[3] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[4]
[4] Ibid.
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 21 September 2018, the Applicant was sentenced to imprisonment for 12 months and six months (concurrent), to be released after having served nine months. Sub-section 501(7A) of the Act provides that, for the purposes of the character test, if a person has been sentenced to two or more terms of imprisonment to be served concurrently, the whole of each term is to be counted in working out the total of the terms. Accordingly, for present purposes the Applicant was sentenced to 18 months imprisonment. Second, what matters is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served.[5]
[5] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.
It was contended on behalf of the Applicant that, had his visa status and the hardship that would be faced by him if he were deported been brought to the attention of the learned sentencing Magistrate, there would have been “a considerable chance” that the sentence imposed would have been less than 12 months.[6] There is nothing before me to support there being a considerable chance that the total sentence would have been reduced by at least six months had the learned Magistrate been aware of those matters.
[6] Exhibit A1, page 9.
Futher, in the hearing, it was contended that, had the Applicant known that his visa was going to be cancelled, he could have lodged an appeal against his sentence, however he found out about that after the appeal period had expired.[7] The Applicant knew that he was in Australia on a visa, and he could have put that information before the Magistrate. In any event, the Tribunal may not go behind the sentencing process that enlivened the exercise of the discretion that is under review.[8] There is no doubt that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. He cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
[7] Transcript, page 9, lines 22 to 34.
[8] HZCP v Minister for immigration and Border Protection [2019] FCAFC 202.
Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) has application.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non‑citizen’s visa, paragraph 6.3 of the Direction contains several principles that must inform a decision-maker’s application of the considerations in paragraphs 7 and 8.
Paragraph 7(1) of the Direction provides that:
Informed by the principles in paragraph 6.3 above, a decision-maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[9]
[9] The Direction, sub-paragraph 7(1)(b).
Paragraph 8(1) of the Direction provides that:
Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse or grant a visa to a visa Applicant, cancel the visa of the visa holder, or revoke the mandatory cancellation of the visa. These different considerations are articulated in Parts A, B and C...
Part C provides for the decision-maker to take into account “Primary Considerations”[10] and “Other considerations”.[11] The Primary Considerations are set out in paragraph 13.(2) of the Direction (contained in Part C) and they are:
(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.
[10] The Direction, paragraph 13.
[11] The Direction, paragraph 14.
The Other Considerations are set out in paragraph 14(1) of the Direction (contained in Part C) and they are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[12]
“…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, 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.”[13]
[12] [2018] FCA 594.
[13] Ibid, [23].
BACKGROUND AND OFFENDING
The Applicant was born in India in 1982. Following the death of his mother, he was raised predominantly by an aunt while his father was working in Germany.[14] According to him, he completed the equivalent of year 12 and a bachelor degree in Commerce in India.[15] When he was 17 or 18 he started smoking heroin with his friends. When he had money to buy heroin, he consumed it. Otherwise he did not. He stopped smoking heroin for around 18 months after his father caught him but he later resumed. I note that there is a letterfrom Ms L in which she said that the Applicant went to Thailand and replaced one drug, being heroin, with another, being cocaine.[16] However, this is not consistent with the Applicant’s evidence, Ms L does not have direct knowledge of the Applicant’s life before she met him in Australia, and she did not mention anything about him going to Thailand in her evidence, so I give no weight to this part of her evidence. In India, the Applicant bought heroin with money his father had given him (that his father did not intend for him to spend on drugs).[17] He also smoked marijuana.[18] Ultimately, his father sent him to Australia to get him away from drugs and to continue his studies.[19]
[14]     Exhibit R2, page 309.
[15]     Ibid.
[16]    Exhibit G1, section 501 G Documents, G2, page 87.
[17]     Exhibit A2, Applicant’s statement, page 2; Transcript, pages 51 to 53.
[18]     Transcript, page 51, lines 24 to 25.
[19]     Exhibit A2.
In June 2009, at the age of 26, the Applicant came to Australia on a student visa. He settled in Melbourne. According to information provided in his revocation request,[20] he became involved in a romantic relationship with a woman (“Ms A”) who, unbeknown to him, had a husband and children. They commenced living together and the relationship resulted in the Applicant dropping out of his studies due to Ms A’s jealousy over a woman in his class. When his father discovered he had dropped out, he stopped financially supporting him. The Applicant then transferred to a partner visa on the basis of his relationship with Ms A.[21]
[20] Exhibit G1, section 501 G Documents, G2, pages 78 to 82.
[21] Transcript, page 32, line 38.
The relationship with Ms A, as the Applicant’s described it, involved what I would characterise as emotional and financial abuse of the Applicant. He became involved with his current partner, Ms L, while he was still in that relationship. Ms L is in her fifties and has adult children. There followed a period when the Applicant changed his mind several times about who he wished to be in a relationship with, eventually deciding on Ms L. At the time, he was “smoking a bit of ice” and Ms L occasionally did that with him although before that time she had only ever smoked “a bit of pot”.[22] When he told Ms A he was staying with Ms L, she got an apprehended violence order against him and Ms L. He said Ms A contacted him one day and set him up so that he was charged with stalking her. He said that on a subsequent occasion, he came upon her by coincidence and she made it look like he had assaulted her and taken her phone. I will address these events in more detail below.
[22] Exhibit G1, section 501 G Documents, G2, page 80.
In his oral evidence the Applicant said he first experienced depression in 2012 or 2013 because Ms A used to “torture” him, not allowing him to go out or see his friends, calling him every five minutes and yelling at him.[23] He said this led him to use methamphetamine, which he referred to as “ice”. I will use his terminology in this decision. He said he did not use illicit drugs in Australia until he took ice in 2013.[24] He also gave an estimation of 2014[25] but I do not consider the difference to be significant. He said he used ice every day only stopping for a period of three or four months when he moved to Canberra.[26]
[23]     Transcript, page 32, line 43 to page 33, line 2.
[24]     Transcript, page 53, lines 39 to 40.
[25]     Transcript, page 51, lines 13 to 20.
[26]     Transcript, page 54, lines 29 to 34; page 55, lines 12 to 13.
While with Ms L, the Applicant started dating the woman who supplied his ice which resulted in problems between him and Ms L. I have read a letter written by Ms L[27] which goes into more detail about all of these personal dramas with the Applicant concealing from her his continued involvement with Ms A, him moving several times between Ms A and Ms L, and Ms L leaving him a few times because of his behaviour then resuming the relationship. Ms L said that for a time they were both using ice daily but that she “went away for a week and stopped using it”.[28]
[27] Exhibit G1, section 501 G Documents, G2, pages 83 to 96.
[28] Exhibit G1, section 501 G Documents, G2, page 85.
Prior to the hearing the Applicant provided a letter recounting these events in more detail.[29] He mentioned that he had been physically abused by Ms A and that she had threatened him with respect to his visa status.
Offending against Ms A
[29] Exhibit A2.
According to a Victorian police report,[30] on 4 August 2014 the Magistrates Court granted an intervention order against the Applicant. The victim’s name is redacted but it appears from the facts that the victim was Ms A and this is consistent with the evidence of both the Applicant and Ms L.
[30] Exhibit G1, section 501 G Documents, G2, pages 37 to 38.
On 29 September 2014, the Applicant was convicted of “stalking (int/arouse appreh/fear-safety) persist contra family violence NTC/order contravene a conduct condition of bail”. The Applicant was sentenced to a community correction order for 12 months and ordered to do 60 hours of unpaid community work.[31] The facts giving rise to this conviction are not before me.
[31] Exhibit G1, section 501 G Documents, G2, page 30.
In the Applicant’s revocation request he said:
“My ex called me from work one day and asked me to come over that afternoon to talk. It was raining and I was waiting for her in my Ute in her street when she pulled up. She had someone in her car and beckoned me to follow her which I did. We had to go ont a service road to go into the hiway and she slammed her foot on the brake and I swerved but my Ute hit her car… which was actually my car. She went straight to police and told them I was stalking her and I tried to run her off the road. The police didn’t want to listen to my story and I was charged. After quite a few months of her harassing me I found some messages on out joint Facebook account that I hadn’t used for some time telling her kids she was going to get everything she could from me. She had told them she had met someone and was seeing them and it was quite serious.”[32]
[Errors in original]
[32] Exhibit G1, section 501 G Documents, G2, page 80.
The Applicant’s version is not consistent with the conviction for stalking. He did not produce any of the Facebook messages that he referred to. Ms L gave evidence broadly corroborating his evidence but she admitted that her evidence was entirely based on what the Applicant had told her.[33] The evidence of the Applicant and Ms L is not sufficiently persuasive to justify a finding that is contrary to the court’s verdict. I am satisfied that the Applicant stalked Ms A in contravention of a family violence order.
[33] Transcript, page 124, lines 32 to 44.
According to another Victorian police report,[34] on 1 April 2015, Ms A was walking home at Rockbank. She saw a vehicle approach her at speed then stop quickly next to her. She thought it would hit her. The Applicant exited from the driver’s side of the vehicle and rushed towards her. The Applicant demanded that she speak with him about the relationship and pushed her to the ground. He grabbed her by the hair and started to pull her hair as she got to her feet, causing pain. Once she was standing, the Applicant slapped her across the face two or three times then punched her twice in the face, causing her nose to bleed. She ran across the road and the Applicant chased her. He caught her, grabbed her and began to shake her. He tried to grab at her hair to pull it again. He grabbed at her handbag and used such force that he ripped it from her grip causing a minor injury to her index finger. Ms A had her mobile phone in her pocket and the Applicant grabbed for it. The phone was in a case that included Ms A's drivers’ licence, bank card and a rewards card. She demanded the phone and other items back. The Applicant only gave back the cards and kept the phone. The Applicant yelled out to a friend who was in the car to open the boot of the vehicle. As the friend was doing this, a truck came down the road which startled the Applicant. He and his friend got back into the car and left the scene. Police subsequently interviewed the Applicant who admitted to being aware of the existence of the intervention order but denied having been in Rockbank at the time of the incident and said he did not know Ms A’s address.
[34] Exhibit G1, section 501 G Documents, G2, pages 37 to 38.

Before me is a witness statement by Ms A[35] which is consistent with the police version. This is unsurprising as the police version was most probably based on Ms A’s account. Ms A’s statement includes that she thought the Applicant was upset and erratic and possibly drug affected. She said he could become very angry and uncontrollable when using ice. Also before me are photographs of Ms A depicting what appears to be:
·     blood at the base of her nose and some skin discolouration, similar to bruising, between her nose and mouth;
·     bruising on her shoulder; and
·     bruising on the side of her face.
[35]     Exhibit G1, section 501 G Documents, G27, pages 342 to 344.
The notation on these photos indicates that they were taken the day after the incident, being 2 April 2015.
The Applicant was charged with intentionally causing injury, recklessly causing injury, unlawful assault and stealing. On 1 June 2015 warrants were issued in relation to these charges.[36] The Applicant was never convicted in relation to these allegations, and his criminal history describes the charges as “pending”.
[36] Exhibit G1, section 501 G Documents, G2, pages 39 to 41.
The Applicant’s version of events in his revocation request is as follows:
“I was with a mate one afternoon and was looking at a house [Ms L] had applied for and as I was leaving the area and I saw my ex girlfriend walking down the street. She saw me and started screaming at me and started running down the street. She fell over and I stopped the car and went to help her. As I approached her she threw her phone at me and got up and started screaming again. She started running again and as I approached her to give her back her phone and (sic) she fell again and wet herself and hit her face on the road. I got back in my car and left and went back home. I read her phone and showed [Ms L] the text messages. My mate said he never saw anyone so crazy before. She called police saying I stole her phone which I believe is still at Melton police station.”[37]
[37] Exhibit G1, section 501 G Documents, G2, page 80.
I note that in this version, the Applicant did not deny having been at the scene. Instead, he admitting to having been there but denied having assaulted Ms A or taken her phone from her.
In June 2019, Ms L wrote to the Respondent. She said that in relation to these allegations the Applicant had not “been afforded the right of reply through the court” and blamed the Respondent. She said:
“The matter was mentioned to him before his release by immigration officers that interviewed him in goal (sic) and no action was taken to have him appear in court in Victoria even though there was a warrant for his arrest. That could have been dealt with before his departure and before him being taken to villawood. He was prepared to go to court and had witnesses to show that [Ms A’s] statement was a lie. The other FVO that was in place was broken by her on many occasions resulting in [the Applicant] breaking them and we have written proof on social media which can prove she broke the FVO first and caused him to break it as well and then her reporting him for breaking it. We also have emails from her threatening both [the Applicant] and myself and saying she’s going to destroy him.”[38]
[38] Exhibit G1, section 501 G Documents, G2, page 114.
The alleged incident occurred in April 2015 and warrants were issued for the Applicant’s arrest in June 2015. He was not taken into Immigration Detention until December 2018. The Applicant had ample opportunity to have the charges dealt with. Further, he had the opportunity to adduce evidence in answer to the allegations in these proceedings. He did not produce any of the emails or proof on social media referred to by Ms L. Nor did he adduce any evidence from the friend who was in the car with him.
I note that on the Applicant’s and Ms A’s version there was one other witness to the incident, being the other person in the Applicant’s car. There is no indication of any other witness in either account, yet Ms L referred to “witnesses”. This, and her reference to threatening emails and proof on social media that were not produced, seems like hyperbole and undermines the credibility of that evidence.
I find the following aspects of the Applicant’s version of the incident with Ms A implausible:
·The Applicant encountered Ms A in a place that was routine for her (she was walking home) but unusual for him (looking at a rental property) and this was not deliberate, it was sheer coincidence;
·The Applicant approached Ms A to “help” her after seeing her scream at him and run down the street;
·Ms A threw her phone at him;
·Ms A fell over twice, all by herself; and
·The injuries to Ms A’s nose, the side of her face and the top of her shoulder were caused by her falling over.
In contrast, the police evidence – being Ms A’s statement, the photographs of her and the police facts – are coherent, internally consistent and not inherently implausible.
The Applicant was cross-examined about this version of events. He continued to deny assaulting Ms A or taking her phone from her. He gave an exculpatory version that was inconsistent in many respects with the version in his revocation request, and at times he appeared to be making up his evidence as he went along, as illustrated by the following examples set out in the table.

Evidence in revocation request Evidence in hearing

She fell over and I stopped the car and went to help her. As I approached her she threw her phone at me, and got up and started screaming again. I stayed next to my car, and my friend went… I had my friend to go and help her.[39]

She started running again and as I approached her to give her back her phone...
I just left the phone there, and I told her to pick up her phone, and I left.[40]

[So you didn’t approach her to give her back her phone?] No

[So after she threw the phone, it hit the ground, and you get back into your car, and your friend got back into the car, and you drove away?] Yes.[41]

I got back in my car and left and went back home. I read her phone and showed [Ms L] the text messages.
[Do you recall if the phone had a cover or not?] I didn’t know, because I didn’t pick the phone.[42]

… my friend tried to give her the phone, and she didn’t (indistinct) he left the phone there, and we left.[43]

[… when you were arrested, the police found her phone on you. That’s the truth, isn’t it?] Yes, she didn’t took - like, my friend went to give her phone, she didn’t took it, and then I (indistinct) I said, “I paid for that. I’m going to take it.”[44]

[… you gave evidence before that you didn’t know if the phone had a cover or not, because it wasn’t you that picked it up?] I didn’t know - like, my friend left the phone in the car, and I didn’t touch it, and the cops took the phone from my car. I didn’t even see the phone...[45]

[39]     Transcript, page 35, line 45 to page 36, line 5.
[40]     Transcript, page 37, lines 11 to 14.
[41]     Transcript, page 38, lines 44 to 45.
[42]     Transcript, page 38, lines 36 to 37.
[43]     Transcript, page 39, lines 9 to 10.
[44]     Transcript, page 39, lines 40 to 44.
[45]     Transcript, page 40, lines 6 to 10.

After the lawyer for the Respondent pointed out some inconsistencies between the Applicant’s written version and his oral evidence, the Applicant changed his evidence to more closely align with his written version. For example he said that he had tried to give Ms A her phone.[46]
[46] Transcript, page 42, line 15.
This resulted in there being inconsistencies in his oral evidence. When asked about that, he said “That’s what I write (indistinct) and that’s what I’m going to go with…That’s what I write in there, and - but - it didn’t happen…”.[47] I then told the Applicant that he was under an obligation to tell the truth to the best of his memory. He reiterated that “in the (indistinct) I write that - that I went next to her, and I tried to give her phone back, and she run away, and she fall. I’m going to go with that”.[48] He then said he stopped the car, went to help Ms A, she threw her phone at him, he went to give her phone back to her and she did not take it, and he said “All right, if you don’t want it, I paid for that, I’m going to take it”[49]. He conceded, when it was put to him, that he approached Ms A knowing that she did not want him to.[50] He then attempted to explain his actions as follows:
“…I’m sorry for that. But I was in depression on that time, and I just couldn’t stop myself. Like, you’re living with someone, and she didn’t tell you, and left - took everything and left, and when you suddenly see her, and that’s happened[51]… I just wanted to talk to her, like, what happened, why she left. And she said that she don’t want to talk to me, and I left straight away.[52]”
[47]     Transcript, page 42, lines 26 to 30.
[48]     Transcript, page 42, lines 33 to 40.
[49]     Transcript, page 45, lines 4 to 40.
[50]     Transcript, page 45, lines 41 to 44.
[51]     Transcript, page 46, lines 9 to 14.
[52]     Transcript, page 46, lines 18 to 20.
The Applicant continued to deny assaulting Ms A, although he admitted to having said “Do you love me anymore?”. He also said the AVO had been varied so that he was not prevented from approaching Ms A.[53]
[53] Transcript, page 46.
It was contended on the Applicant’s behalf that the cross-examination of the Applicant was unfair on account of him having a poor memory. Had the Applicant not been able to recall certain things, he should have said as much in his evidence as he was under an obligation to tell the truth. The problem with the Applicant’s evidence under cross-examination lay in the positive assertions he made about certain things that were implausible and/or inconsistent with other evidence. This contention goes nowhere.
Later in the Applicant’s evidence, when he was asked about alleged driving offences of which he had not been convicted, I informed him that he was not required to answer a question if giving the answer would tend to incriminate him.[54] Ms L complained that, in relation to the cross-examination about the alleged assault on Ms A, the Applicant had been “forced to answer an incriminating question” about “charges that hadn’t been in court” and asserted that he “should have been given the opportunity to not comment on those ones”.[55]
[54] Transcript, page 80, lines 30 to 35.
[55] Transcript, page 80, line 37 to page 81, line 2.
The Applicant had already commented on the allegations concerning Ms A in his revocation request. He chose to do that. He gave an exculpatory version. Most of the questions in cross-examination were about that exculpatory version, for example, “Do you remember how she fell?” to which the Applicant replied “Like, she’s wearing high heels, and she’s running. That’s – she slipped and fall”.[56] Neither the Applicant, nor Ms L objected to any of the cross-examination on this topic on the grounds of self-incrimination privilege. Nor would such an objection have been supported by reasonable grounds.
[56] Transcript, page 43, lines 10 to 12.
A small number of questions were about the allegations, for example “And you lashed out in anger, didn’t you, and you hit her?” to which the Applicant replied “I didn’t hit her.”[57] Had the Applicant committed the offences that were alleged against him, answering any of those questions truthfully could have tended to incriminate him. However, there was no objection to any of those questions. Further, had the Applicant “been given the opportunity not to comment on those”, the police evidence, the Applicant’s written version and his oral evidence in relation to that version would have been in evidence. I found his evidence about the encounter with Ms A to be implausible. The Applicant would have been in no better situation had he exercised his privilege against self-incrimination. This contention also goes nowhere.
[57] Transcript, page 46, line 15.
The police evidence regarding the incident concerning Ms A is coherent and plausible and I prefer it to the evidence of the Applicant which is not.
On 30 September 2015, the Applicant was convicted of “use a carriage service to harass” and fined $1,250. The facts giving rise to this conviction are not before me however the size of the fine suggests that the offence was not trivial. In Ms L’s evidence she referred to “using a carriage thing”[58] when she attempted to explain that Ms A set up the Applicant and in fact Ms A had been breaking the AVO by contacting the Applicant. There is no suggestion of any allegation that the Applicant was stalking or harassing any person other than Ms A at this time. Accordingly, what limited evidence there is about this offence indicates that the victim was Ms A. Ms L’s evidence about it was very vague and not enough for me to find, contrary to the court’s verdict, that the Applicant did not commit that offence.
Offending against Ms L
[58] Transcript, page 124, line 35.
Ms L gave evidence about the Applicant’s drug abuse and about all three episodes when he was violent towards her. I found her evidence on these topics to be candid and detailed. She disclosed some matters that reflected poorly on her, which strengthened my impression that she was recounting those events truthfully. I accept her evidence in relation to the Applicant’s drug taking and his assaults on her.
Ms L and the Applicant ended up living in Canberra in 2015. According to Ms L, before the Applicant moved to Canberra, he promised that he would not use ice, and he did not use it for six or seven months. I note that the Applicant said this period was three or four months which suggests a period of use that Ms L was not aware of. They were living with her son in Canberra and the Applicant met a person through him who had some ice. He then started using it behind Ms L’s back. In 2016 the Applicant got a job delivering mail and they moved into their own place however:
“…then all of a sudden, you know, he’s earning over $1000 a week, and so he was then able to contact this other guy and, you know, he was getting up at 4 or 5 o’clock in the morning to start work, and so he is obviously smoking when - before he went to work or when he came home from work or something”.[59]
[59] Transcript, page 121, line 44 to page 122, line 2.
At one point Ms L accused the Applicant of being back on ice and he denied it.[60] In her evidence she likened his resumption of drug use when he was earning money to his use of heroin in India when he got money from his father.[61]
[60] Transcript, page 122, lines 1 to 10.
[61] Transcript, page 122, lines 14 to 16.
The Applicant said he lost that job and became depressed.[62] Ms L said the Applicant’s drug use was not really bad until he lost his job.
[62] Transcript, page 23, line 44 to page 24, line 10.
According to an “AGREED STATEMENT OF FACTS” prepared for the Magistrate’s Court,[63] on the afternoon of 30 March 2016, the Applicant and Ms L had a verbal argument about money the Applicant needed to travel to Melbourne. During the argument, the Applicant grabbed Ms L around her neck. Ms L got up and told the Applicant to leave her alone. She threw her engagement ring and car keys at him. The Applicant slapped her on the left-hand side of her face with an open hand. A short time later the Applicant asked Ms L if she would help him get to Melbourne as he did not have any identification. She said she did not want to help him and that he should take the ring in the car and leave. They continued to argue. Ms L struck the Applicant scratching him on the right side of the neck and his left eye. The Applicant then slapped her to the left‑hand side of her face. This made her feel dizzy and disoriented, and caused an abrasion, bruising and haematoma on her face. When the police attended, they saw a deep red mark on the left side of Ms L’s face and her left eye was swollen.
[63] Exhibit R2, pages 227 to 228.
The Applicant was remanded in custody. He subsequently pleaded guilty to two charges of common assault and one charge of assault occasioning actual bodily harm. He was sentenced to concurrent terms of imprisonment of two months, two months, and six months, all backdated to commence on 30 March 2016.[64]
[64] Exhibit R2, page 90.
In passing sentence, the learned sentencing Magistrate relied on the Agreed Statement of Facts, and her remarks included the following:
“In terms of objectives seriousness these offences are aggravated by having been committed in a family violence context and a breach of trust in a domestic relationship.
I take into account your pleas of guilty. They facilitate justice and indicative of remorse, and I have given you a discount for those please. I take into account your age and your personal circumstances as they have been outlined to me. I take into account your criminal history. It does not aggravate these offences, but it does reduce to some degree the leniency that may have been extended to a person of wholly good character.
I take into account all of the facts and matters set out in the court duty report. I note that there is some concern that you don’t take full responsibility for your offending. However, I accept the submission of your solicitor on that point. I take into account the fact that you have undergone some training in relation to controlling your anger, as demonstrated by the certificate accepted as exhibit A. I also take into account the fact that although there are three charges before me they constitute a course of conduct and should be dealt with accordingly.
I impose penalty upon you to deter you from ever engaging in this type of conduct again, and also to deter others. This is an issue of protection of the community. Our whole community depends upon relationships, one person with another, and the starting point in this society is the relationship between two people who are engaged in a romantic domestic relationship.
To breach trust within that relationship goes to the very core of our community, and it also has a tendency to ripple out throughout that community, creating difficulties with people trusting one another in general society and also having economic impacts if people who are the victim of domestic violence are no longer able to participate fully in the economic working life of the community.
There has already been a significant impact on the economic community by the fact that you have been unable to work for the past few months because you have been in custody, let alone any psychological ongoing impacts to your partner.
I impose penalty upon you to publicly denounce your conduct and also to hold you accountable for your actions. You chose to behave in the way described. That was your choice, that is your responsibility and there are consequences upon you choosing to behave in that way.”[65]
[65] Exhibit R2, pages 89 to 90.
Ms L’s version is that she and the Applicant were intending to go to Melbourne so he could answer the pending charges. She had lent her son some money, they needed it back to pay for their trip and he had not repaid it. The Applicant had gone to Centrelink to seek an advance and he was feeling agitated, having to wait. He was also stressed about court.    The Applicant was yelling at Ms L to find her son and get the money back. She said “If you’re going to keep yelling at me, I’m leaving”.[66] He slapped her across the face and asked for her engagement ring to take to Cash Converters to borrow money. She said “I told you, if I ever have to take my engagement ring off, that’s it, we’re finished”.[67] He kept asking and she took her ring off and threw it at him. She also threw the car keys at him and said, “Just go”.[68] They continued to argue and he grabbed her by her shirt collar and pulled her up, which is why there were marks on her neck. She moved away and he followed. He went to hug her and she thought he was going to hit her again so she hit him, and he hit her back. She yelled out for someone to call the police and she sat in the car.[69]
[66]     Transcript, page 107, lines 35 and 36.
[67]     Transcript, page 107, lines 41 and 42.
[68]     Transcript, page 107, line 44.
[69]     Transcript, pages 107 to 108.

I am satisfied that the Applicant committed the assaults as set out in the Agreed Statement of Facts except that I find that the Applicant grabbed Ms L by her shirt collar, rather than her neck, and pulled her up, causing red marks on her neck. The difference is not significant: either way the Applicant grabbed her in the neck region and applied enough pressure to her neck to leave marks.
According to Ms L, after that domestic violence incident, the Applicant promised her that he would not hit her again and he would stop using ice.[70]
[70] Transcript, page122, lines 18 to 20.
According to both the Applicant and Ms L, after the Applicant’s release from prison he did not use drugs. He obtained employment as a trolley collector. He had done an anger management course while in prison[71] and he was required to attend several sessions of a domestic abuse program but he failed to do so,[72] only attending two intake sessions, because of work commitments.[73] He did some phone counselling with Relationships Australia but apart from that he did not engage in any domestic violence intervention.[74]
[71]     Exhibit G1, section 501 G Documents, G2, page 61.
[72]     Exhibit A12, ACT Corrective Services, Case Management Plan.
[73]     Transcript, pages 73 to 74; page 77.
[74]     Transcript, page 77, lines 15 to 18.
Ms L said she would drive the Applicant to his Corrective Services appointments. She had reminders in her phone and she would remind him. She said:
“I’m – you know, I’m a pretty organised sort of person, and a lot of times I feel that [the Applicant] needs more of a mother than what – you know, than a girlfriend.”[75]
[75] Transcript, page 109, lines 16 to 18.
According to Ms L, the Applicant resumed using ice due to the long hours he was working,[76] and he used it heavily throughout 2017 and the beginning of 2018.[77] She said there were quite a few cases of infidelity as well, and that she found out that the Applicant had been having an online affair with someone in India for over 12 months.[78]
[76]     Transcript, page 108, lines 23 to 25.
[77]     Transcript, page 110, lines 8 to 10.
[78]     Transcript, page 110, lines 10 to 12.
At some point after the first assault on Ms L, the Applicant started taking antidepressant medication but he did not seek treatment for his drug problem.[79] Nor did he tell the doctor who prescribed him antidepressant medication that he was using ice every day.[80] He said the medication made him sleepy all day so he stopped taking it towards the end of 2017.[81]
[79]     Transcript, page 59, lines 29 to 45.
[80]     Transcript, page 60, lines 1 to 3.
[81]     Transcript, page 13, line 45 to page 14, line 2; page 14, lines 15 to 40.
In relation to the Applicant’s use of ice, Ms L told him he had to stop and “just do a normal job without using anything else.”[82]
[82] Transcript, page 108, lines 25 to 27.
In June 2018, the Applicant lost his job.[83] Shortly after that, he committed the second domestic violence offence against Ms L.[84]
[83] Transcript, page 24, lines 27 to 35.
[84] Transcript, page 24, line 44 to page 25, line 20.
According to a police Statement of Facts, on the morning of 27 June 2018, the Applicant and Ms L were arguing when the Applicant slapped her across the right side of her face with an open hand leaving redness. He then tried to strangle her as she lay in bed by placing his hands around her neck. Ms L pulled the blanket up around her neck with her hands to prevent the Applicant from blocking her airways. During this time the Applicant was yelling “I wish you would die”. The Applicant released her neck after five or six seconds. Ms L slept for the rest of the day. That evening she and the Applicant had another argument, and the Applicant punched her with his right-hand to the right side of her face. She tried to defend herself by hitting the Applicant with a plastic broom across his arm to avoid being hit again. She attempted to leave the bedroom to get away from the Applicant but he followed her and grabbed her by her hair for approximately 10 seconds. This caused her to lose balance and fall down the stairs. While on the stairs the Applicant hit Ms L from behind over her right shoulder into the right side of her face. He hit her approximately three times with a closed fist. This resulted in bruising and bleeding to her right eye and right eyelid. She ran from the apartment and called the police. Police observed that she presented as “extremely fearful and distraught”.[85]
[85] Exhibit R2, page 346.
The Applicant subsequently pleaded guilty to one charge of assault occasioning actual bodily harm, for which he was sentenced to 12 months imprisonment to serve nine months, and one charge of common assault, for which he was sentenced to six months imprisonment. In that sentencing episode, he was also convicted of unlicensed driving, use uninsured vehicle, use unregistered vehicle, and two charges of driving under the influence of a drug. He received fines and driving disqualifications for those offences.[86] I note that there was originally a charge relating to his strangulation of Ms L, however that charge was dropped and both the Applicant and Ms L now deny that he put his hands around Ms L’s neck. Ms L said that after the Applicant said “I hope you die”, he grabbed her shoulders and she pulled the blanket over her head in case he was “going to hit me or anything”. She said that is where the choking charge came from but that he did not choke her.[87] While I have serious concerns about the plausibility of this explanation, as it is quite different from the account of the Applicant strangling Ms L in the police facts which was presumably provided to the police by Ms L at the time, I am prepared to accept it because the rest of Ms L’s evidence about the assaults seemed credible.
[86]     Exhibit G1, section 501 G Documents, G2, pages 28 to 29.
[87]     Transcript, pages 110 to 111.
In passing sentence, the learned Magistrate made the following remarks:
“In terms of objectives seriousness, in relation to the driving, in relation to the first offence of drug driving, I note that it was a random check, not the manner of your driving, and you were alone in the motor vehicle.
In relation to the second in time offence of drug driving and its related traffic matters, I note that you had a passenger in the vehicle at the material time. There is a statutory circumstance of aggravation that you were a repeat offender in relation to the drug driving…I note that you were also on conditional liberty at the material time. You were also on conditional liberty, which is a circumstance of aggravation. For the assault occasioning actual bodily harm - that is, you were on bail.
… Those matters are aggravated by being in a family violence context. They are further aggravated by being in the victim’s own home, and also aggravated by being blows to the head, repeated blows, and the two offences taken together as a course of conduct. I note also that there is some diminishment in relation to your acceptance of responsibility, and a degree of victim blaming, which is a very considerable concern. Those assaults are towards the upper end of objectives seriousness, in my view.
… I take into account your age and your personal circumstances as they have been outlined to me. I take into account your criminal history. It does not aggravate these offences, but I do note that you do have a history of violence, and in particular family violence - and therefore the leniency that may be extended to you is significantly reduced. I take into account all of the facts and matters set out in the pre-sentence report. I note rehabilitation is still a relevant sentencing consideration, particularly given your age.
However, deterrence in relation to each of these matters is highly relevant. Driving with drugs in your system is exceedingly dangerous. More people are found to have been involved in fatal and serious motor vehicle accidents and then found to have drugs in their system than not. There is a clear link between injury and death on our roads and people driving with drugs in their system.
In relation to being unregistered and uninsured, again that is a matter which tends to expose innocent people to risk. If you are not properly insured and you are involved in an accident, which of course is made more likely by the fact that you have drugs in your system, you can leave innocent people financially exposed with no insurance. If you are unlicensed, again that tends to undermine the system of licensing again, which is a matter for the public safety - and it exposes the community to risk that they should be protected from.
The assaults occasioning actual bodily harm are very serious. In particular, the community is very concerned about domestic violence. It has both personal, emotional, societal and economic loss to the community, and is a matter not between two people but a matter quite properly of community concern. And particularly in circumstances where you have been directed towards rehabilitation in the past for this type of conduct, there are very significant concerns that the community should be protected from your behaviour. I impose penalty upon you to publicly denounce your conduct and hold you accountable for it.
… In relation to the common assault, I convict you of that offence. That offence is so serious in all the circumstances, only a term of imprisonment is warranted….
In relation to the assault occasioning actual bodily harm, I convict you of that offence. That offence is so serious in all the circumstances that only a term of imprisonment is warranted. I therefore sentence you to 12 months’ imprisonment, reduced from 15 months’ imprisonment, which you would have been but for your guilty plea.”[88]
[Underlining added]
[88] Exhibit G1, section 501 G Documents, G2, pages 32 to 35.
These sentencing remarks indicate that, at the time of the Applicant’s sentencing, he lacked insight (was engaging in victim blaming) and the learned Magistrate considered that the community needed protecting from him. Ms L, in her evidence to the Tribunal, partly blamed herself, saying:
“So look, it was a situation, as I said in my comments, had I known (1) that he had lost his job, and it’s not an excuse for him, but I wouldn’t have asked him for the money or we would have worked something else out to – in view of the fact that he had been coming down off the ice. I had seen the situation before and instead of just walking out of the situation, I didn’t, and I exploded at him for not doing what he should have been doing, taking responsibility, emailing the court.”[89]
[89] Transcript, page 112, lines 31 to 37.
In the hearing, the Applicant explained his violence against Ms L as arising from depression due to him losing his job. He said they were arguing because he had not told her that he had lost his job.[90] He said he could not remember either of the assaults that day.[91] He indicated he had used ice the previous day[92] and that ice “makes you, like, really aggressive”.[93] The Applicant later admitted to remembering running after Ms L, grabbing her by the back of her hair, and her falling on the stairs but he said he did not punch her, he slapped her.[94] When challenged about whether he punched or slapped Ms L, he responded “My – I’m telling you. Go and get fucked, both of everyone” and terminated the video link.[95] The Tribunal re‑established contact with the Applicant at which point he said:
“Sorry, miss, I’m stopping, I’m stopped. I’m fucking (indistinct)… Like I’m going to kill myself and I’m going to fucking leave a letter out against the fucking Australian government, I’m going to fucking –"[96]
I then interjected.[97] After some time and coaxing from Ms L, the Applicant regained his composure and cross‑examination continued.
[90]     Transcript, page 60, lines 17 to 23.
[91]     Transcript, pages 60 and 61.
[92]     Transcript, page 62, line 35.
[93]     Transcript, page 63, lines 1 to 3.
[94]     Transcript, page 66, lines 1 to 28.
[95]     Transcript, page 66, lines 30 to 45.
[96]     Transcript, page 68, line 17 to 21.
[97]     Transcript, page 68, line25 to page 69, line 3.
I am satisfied that, apart from the allegations of strangling, the Statement of Facts in relation to the 2018 offences accurately records the violence the Applicant inflicted upon Ms L.
The Applicant said he did not normally drive but he admitted, in relation to the drug-driving offences that he had been driving under the influence of methamphetamine.[98]
[98] Transcript, page 80, lines 4 to 13.
The Applicant said he did not know the car was unregistered as it belonged to Ms L and she was unaware that her registration had been cancelled due to unpaid fines. Ms L gave evidence corroborating this. I accept this.
After the Applicant’s visa was cancelled, he was voluntary removed to India where he remains.
PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors, including:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or Government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.
I am not limited to considering proven offences. I am required to consider the nature and seriousness of the Applicant’s “conduct to date”. That includes his attack on Ms A even though it was never the subject of a conviction. In all, the Applicant has engaged in four episodes of violence against a female partner or ex-partner. His attack on Ms A breached a court order that was issued to protect her from the Applicant. In the course of that attack, he pulled her hair, slapped and punched her in the face and chased her when she tried to flee. He did these things to her after she screamed and tried to run away from him. He left her bloody and bruised. A member of the Australian community should be able to end an intimate relationship without subsequently being stalked and attacked.
The Applicant’s attacks on Ms L involved a similar level of brutality with hair pulling, slapping and punching. In addition, he said “I hope you die” while grabbing at Ms L’s shoulders. He left injuries and marks on her. Ms L was entitled to physical safety in her own home, yet she was not safe.
Each attack was serious and there is nothing in the evidence before me that mitigates their seriousness. In accordance with factors (a) and (b), these assaults must be viewed very seriously.
I have accepted that the Applicant did not realise he was driving an unregistered vehicle. I am prepared to accept he did not realise it was uninsured either. However, that leaves two instances of drug-driving in addition to driving unlicensed. As the learning sentencing Magistrate pointed out, these offences tend to expose innocent people to risk, and driving unlicensed “tends to undermine the system of licensing again, which is a matter for the public safety - and it exposes the community to risk that they should be protected from”.
The imposition of a custodial term is normally a measure of last resort in the hierarchy of sentencing options available to a sentencing Court. The Applicant was initially given the benefit of a community based order when he was convicted of stalking: he was put on a Community Corrections Order and required to perform 60 hours of unpaid community service. For using a carriage service to harass he was fined. For the assaults on Ms L in 2016, he was sentenced to periods of imprisonment of six months, and two months x 2. An even longer period of imprisonment was imposed for the assault occasioning actual bodily harm in 2018, being 12 months (and six months for the other assault) with nine months to serve. This is a substantial head sentence and substantial period to serve. The learned sentencing Magistrate said of the actual bodily harm offence:
“That offence is so serious in all the circumstances that only a term of imprisonment is warranted. I therefore sentence you to 12 months imprisonment”.
The Applicant‘s offending against current or former intimate partners is certainly frequent with a stalking conviction in 2014, a conviction for using a carriage service to harass in 2015, a domestic violence episode in 2016, and two domestic violence episodes (in one day) in 2018. Added to that, he was violent towards Ms A in 2014.
The 2018 domestic violence episodes are indicative of an increase in the seriousness of the Applicant’s offending because: he said he wished Ms L would die during the first attack; and having attacked Ms L in the morning, left the premises and had the opportunity to calm down, he attacked her again.
The cumulative effect of the Applicant’s repeated stalking, harassment and domestic violence offending is that women who are, or have been, involved in an intimate relationship with the Applicant have suffered fear and physical violence.
The cumulative effect of the Applicant’s drug-driving is that he has placed other road users at increased risk of injury and death on the roads.
I do not consider factors (c) or (g) to (i) of paragraph 13.1.1(1) of the Direction apply to the Applicant’s offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 13.1.1(1) of the Direction, in their totality, weigh very heavily against revocation of the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:
(a)paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The harm should the Applicant engage in further domestic violence and stalking includes physical injury, emotional harm and psychological harm to the victim. The potential harm is not confined to the immediate victim but extends to those who care about the victim. On both occasions when the Applicant was sentenced for domestic violence offences, the learned sentencing Magistrate described the derivative harm from such offending which included:
·breaching the trust within a romantic domestic relationship, being a kind of relationship that the whole community depends upon;
·a ripple effect throughout the community, creating difficulties with people trusting one another in general society; and
·economic impacts if people who are the victim of domestic violence are no longer able to participate fully in the economic working life of the community.
The harm should the Applicant engage in further drug-driving includes serious injury or death to other road users. As the learned sentencing Magistrate said in relation to the two drug-driving offences in 2018:
“Driving with drugs in your system is exceedingly dangerous. More people are found to have been involved in fatal and serious motor vehicle accidents and then found to have drugs in their system than not. There is a clear link between injury and death on our roads and people driving with drugs in their system.”
Over-all the harm from repeated offending includes serious or even catastrophic physical and psychological harm to members of the community.
Likelihood of engaging in further criminal or other serious conduct
In a Pre-sentence Report prepared by ACT Corrective Services, prior to the Applicant’s sentencing for the 2018 offences, it was recommended that the Applicant was suitable for a “medium level of intervention” and that supervision would include strategies to address the following “identified areas of dynamic risk”:
·illicit substance;
·mental health;
·relationship issues;
·re-offending; and
·Applicant’s attitude towards his offences.[99]
[99] Exhibit R2, page 311.
It does not appear that the Applicant has, since his most recent offending, taken any steps to address the first three of those risk factors.[100] The fourth is an outcome rather than a risk factor. In these proceedings the Applicant claimed to have a changed attitude towards his offending.
[100] Transcript, page 75, lines 30 to 37; page 77, lines 15 to 18.
The Applicant attributed his offending to depression and anxiety.[101] He said he was depressed after losing his job, which led to drug use which led to the offending.[102] Ms L’s evidence, which I accept, is that the Applicant was using ice while he was employed, only it worsened after he lost his job on both occasions. Ms L said the Applicant’s “violent outbursts were due to him coming down off the drugs”, his inability to control his emotions and not being in a clear state of mind. She said under normal circumstances when the Applicant is not using drugs he is quiet and able to communicate his feelings without the threat of violence or raising his voice.[103] However, the Applicant lost his temper in the hearing, under the pressure of measured cross-examination, despite not being affected by drugs.
[101]    Transcript, page 27, lines 20 to 23.
[102]    Transcript, pages 21 to 22.
[103]    Exhibit G1, section 501 G Documents, G2, page 113.
Even after seeking treatment for depression and anxiety, the Applicant continued to use ice. He then stopped taking his medication because of its side effects but did not take alternative medication, and he went on to attack Ms L in 2018. The Applicant’s behaviour up to the point of his most recent incarceration did not show any real commitment to managing his psychological state such that he could abstain from drugs and refrain from domestic violence. Not even a period of imprisonment in 2016 motivated the Applicant to properly address his problems with drugs and violence.
Nor has the Applicant undertaken any drug rehabilitation since the 2018 assaults,[104] although by his account he has been drug free since June 2018. This alone does not give me much confidence that he would remain drug free if he had the means to acquire drugs. He has a long history of illicit drug use which includes periods in which he did not use drugs. He gave up heroin in India for over a year and he did not use drugs in Australia between 2009 and around 2013. In India he used drugs when he had the money to buy them. He gave up ice for several months after moving to Canberra and resumed when he met someone who could supply him with ice and he had income from employment. He gave up ice again when he was imprisoned in 2016 only to resume taking it when he had a job. The Applicant said that in his village there is a lot of drug use but he stays away from it and tries to find work.[105] His evidence was, however, that despite having engaged in some paid work through a friend, he does not have enough money and has had to borrow money for his basic expenses.[106] Accordingly, the Applicant has not, since returning to India, had the financial means previously associated with his use of illicit drugs.
[104]    Transcript, page 75, lines 30 to 37.
[105]    Transcript, page 20, lines 1 to 5.
[106]    Transcript, page 56.
In his revocation request the Applicant said:
“I wish to remain in Australia and work and make myself a better person. I realise I have made bad choices in the past and I want to make up my wrongdoings to the Australian community and persons I have hurt. I dont believe I can do this if I am sent back to India. With specialist help available here in Australia and a strong network of friends and my fiancé and health system to help me I know I can turn my life around and prove I can be a good member of the community and support my fiancé and friends. I have no work prospects in India and I suffer depression and think it could get worse if I have to go back there.”[107]
[107] Exhibit G1, section 501 G Documents, G2, page 50.
In relation to Ms L he said:
“It has taken the last 6 months for me to realise how much I love her and how much I care for her and how sorry I am for ever hurting her and putting her through the things I have done. I want nothing more than to be with her and get my life back on track to provide for her and to give her the life she deserves. She has stood by me and found it in her heart to forgive me. I want to marry her and look after her. This is not the person that I was raised to be and I know it was the drugs that got a hold of me and created this person that I want to forget and never go back to that situation again. I realise I will need to go to counseling (sic) and [she] and I want to go to couples counseling (sic) together to make our relationship better and stronger.”[108]
[108] Exhibit G1, section 501 G Documents, G2, page 81.
The Applicant did not use the specialist services that were available to him when he was in the community. Nor did he abide by Ms L’s wish that he abstain from drug use. He now askes the Tribunal to accept that his attitude has changed.
The Applicant gave evidence that he wants to stay away from drugs as it is the one thing that has ruined his life,[109] and when asked how he would do that if he were returned to Australia he said he would attend the temple and get counselling from the priest there.[110] When asked how he would deal with depression and manage it without using illegal drugs, the Applicant pointed to counselling. He agreed with the proposition that his depression was a reaction to stressful or upsetting things that were happening in his life at the time as opposed to an underlying condition.[111]
[109]    Transcript, page 20, lines 15 to 20.
[110]    Transcript, page 20, lines 24 to 26.
[111]    Transcript, page 22, lines 1 to 4.
The Applicant said that he is willing to do rehabilitation courses and that he wants to prove that he is not the same person as he was before and is not a drug user.[112] A friend of the Applicant, who owns a business, stated in a letter of support that they will give him a job, a spare room in his home, and he will give him time off to attend courses.[113]
[112] Transcript, page 86, lines 14 to 18
[113] Exhibit G1, section 501 G Documents, G2, page 105; Transcript, page 86, lines 23 to 25.
The Applicant’s plan, if he is allowed to return to Australia is, in his words:
“I come back to Australia just want to be start working at my future properly, and get married, and stay with my girlfriend. And stay away from the mistakes I done....”[114]
[114] Transcript, page 77, lines 31 to 35.
When asked if he would need any help to stay away from those mistakes, the Applicant said “my girlfriend like she going to help me to like stay away from them.”[115]
[115] Transcript, page 77, lines 30 to 42.
The Applicant’s father’s friend, with whom he lives in India, gave evidence. He said he had known the Applicant for nearly 20 years as they lived in the same village. He did not seem to have a good grasp of the offences that the Applicant had committed, seeming to think that the Applicant “must have had a fight with somebody”.[116] He spoke positively of the Applicant and said that he did not currently use drugs or even drink alcohol.[117]
[116] Transcript, page 141, lines 24 to 25.
[117] Transcript, page 141, lines 29 to 34.
Ms L’s adult daughter gave evidence that the Applicant was like a step-father to her. She spoke about him in glowing terms, describing him as calm, lovely and a people pleaser.[118] However, she appeared to be under the impression that the Applicant had only assaulted Ms L once.[119] She said she did not think the Applicant had ever been a threat to the community or to anybody,[120] which I find bizarre given her knowledge that he assaulted her mother. She has been in contact with the Applicant since his return to India, and she thought he had rehabilitated himself and that his “whole headspace is completely different”.[121] She did not say why she thought that and she did not claim to have any qualifications or expertise that would assist her to make such an evaluation so I do not find her evidence on that issue persuasive. I accept that the Applicant is capable of being a kind, giving person and perhaps he is that way much of the time. However, that has not stopped him from offending.
[118]    Transcript, page 129, lines 7 to 13.
[119]    Transcript, page 128, lines 42 to 45.
[120]    Transcript, page 130, lines 32 to 35.
[121]    Transcript, page 130, lines 42 to 46.
The Applicant has pointed to employment as something that would help him stay away from drugs. However, in Canberra his employment was linked to his drug use.
Ms L told the Tribunal that if the Applicant is allowed to return to Australia perhaps they would not live together straight away but would date each other, see how the Applicant behaves, make sure he has his addictions under control and is engaging in counselling, and perhaps after six months they would start living together.[122]
[122] Transcript, page 117, lines 12 to 18.
It is concerning that the Applicant considers himself to be reliant on help from Ms L to stay away from drugs if he is allowed to return to Australia. This puts Ms L in the very difficult position of being partly responsible for whether or not the Applicant engages in conduct that could lead to him offending against her. What is more, there appears to be a parent-child dynamic in the relationship between Ms L and the Applicant whereby, among other things, Ms L has tried to set healthy boundaries, speak on the Applicant’s behalf, remind him to attend appointments, and calm him down when he loses his temper; while the Applicant has historically accepted her support yet continued to behave irresponsibly and against her best interests. Even in 2018, the Applicant was found by the learned sentencing Magistrate in 2018 to somewhat blame Ms L for his assaults on her, and in the hearing she took some of the blame. Thus far, she had not required that he “step-up” and take responsibility for his behaviour and his rehabilitation.
Ms L’s previous efforts to keep the Applicant from using illicit drugs have had limited success. He broke a promise he made to her to stay off ice, and he concealed his ice use from her both times he relapsed in Canberra. In fact, throughout his relationship with Ms L, the Applicant has continually deceived her about important matters. He concealed from her the fact that he was in a relationship with Ms A, he has been unfaithful to her multiple times including a year-long online relationship while they were living together, and he has concealed his drug use from her. While the Applicant now says he is sorry for hurting Ms L and he is committed to their relationship, there is no evidence before me of any recent steps taken by him to address his rather entrenched tendency to behave in a duplicitous manner towards her. While Ms L could assist the Applicant’s rehabilitation as far as things like driving him to counselling appointments, I am not confident that she would necessarily know if he resumed drug use or would be able to prevent him from relapsing.
Nor am I satisfied that Ms L now has a zero tolerance attitude to further drug use or domestic violence. She said she has told the Applicant that if he uses drugs again she will end the relationship.[123] However, given the behaviour she has tolerated thus far, it remains to be seen whether she would follow through on that threat or whether the Applicant takes that threat seriously. Ms L acknowledged the risk of further domestic violence when she recounted some reasons why she would not want to move to India. She said if the Applicant was violent to her, she would not have any support and there are not any rehabilitation services where the Applicant lives so she would be at risk. She then said:
“All my children are upset with him. I mean they still speak to him and everything else, and they’ve told him straight up, ‘If you come back here and you touch my mother again, you know, you’ll just leave the country in a box’.”[124]
[123] Transcript, page 115.
[124] Transcript, page 117, lines 44 to 47.
That evidence was given after the Applicant’s evidence had concluded; it was not put to him. It is not known whether that seemingly rhetorical threat would have the effect of militating any risk that he will be violent to Ms L should he be allowed to return to Australia.
In summary, the Applicant does not currently use illicit drugs (or alcohol). However, he has not yet engaged in any professional or formal intervention to address his tendency towards illicit drug use or domestic violence, and his apparent resolve to avoid illicit drugs and domestic violence has not been tested in the kind of environments in which he previously engaged in that behaviour. He has previously abstained from drug use for extended periods only to take up drug use again. He is partly reliant on Ms L to help him to stay away from drugs but I am not confident that she would be able to stop him using drugs if he wanted to. On the evidence before me, I cannot be satisfied that the Applicant has undergone the change in attitude that he claims, or that, if returned to the Australian community, he would do what is required to abstain from drug use and crime. I consider there to be a very real likelihood of further domestic violence offending against Ms L or future partners, and drug related offending such as drug-driving.
Conclusion: Primary Consideration A
Primary Consideration A weighs heavily against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made.
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
·the nature and duration of the relationship between the child and the person, noting that less weight should generally be given where there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
·the extent to which the person is likely to play a positive parental role in the future, taking into account the time until the child turns 18, and including any Court order relating to parental access and care arrangements;
·the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizens ability to maintain contact in other ways;
·evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect;
·whether there are other persons who already fulfil a parental role in relation to the child; and
·any known views of the child.
The Applicant did not claim that the decision would affect the best interests of any minor children, however Ms L’s daughter gave evidence that her eight year old son (“Child A”) is very fond of the Applicant. She said the Applicant and Ms L lived with her family for a while in Victoria, and that when they were all in Canberra the Applicant would sometimes visit her.[125] In the course of those visits, the Applicant spent some time with Child A. The Applicant might have picked Child A up from school or day care once or twice or spent time with him on his own for an hour or so.[126]
[125] Transcript, page 132.
[126] Transcript, page 135, lines 36 to 47.
The Applicant is not a parent of this child and has never fulfilled a parental role. The Applicant has not consistently spent significant time with Child A. He has been physically absent from Child A’s life for over two years. There is no suggestion that this has caused any emotional or psychological harm to Child A or that the Applicant’s continued absence would cause any such harm. Child A’s mother fulfils a parental role for him and there is no suggestion that the Applicant would ever be called upon to do that. The extent that the Applicant could be a positive influence in Child A’s life in future depends on him and Ms L remaining together and to some extent on the Applicant abstaining from drugs.
I accept, based on Child A’s mother’s evidence, that Child A is very fond of the Applicant and would like him back in his life in some capacity. There is some potential for the Applicant to play a positive role in Child A’s life if he is allowed to return to Australia. That potential is contingent and his role would not be parental. I afford limited weight in favour of revocation under this Primary Consideration.
Conclusion: Primary Consideration B

This Primary Consideration weighs to a limited extent in favour of revocation.
PRIMARY CONSIDERATION C – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration C, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. Moreover, I should proceed on the basis that the Australian community expects that the Australian government can and should cancel a person’s visa if they commit serious crimes. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. I must have due regard to the Government’s views in this respect and any overarching principles in the Direction.
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of the community. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Government’s views in relation to community expectations are to be found in the Direction.[127]
[127] Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
This approach was confirmed recently by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”). In FYBR the Full Court also established that the principles in paragraph 6.3 of the Direction can inform the weight to be attributed to the expectations of the Australian community. The attribution of weight to this consideration is a matter for the relevant decision-maker.
Paragraph 6.2(1) of the Direction states that:
“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.”
Those principles, set out in paragraph 6.3 of the Direction, are:
(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 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 be allowed to come to or remain permanently in Australia; and
(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-citizens Visa should be cancelled, or their visa application refused.
Analysis – Allocation of Weight to this Primary Consideration C
Accordingly, in assessing the weight attributable to Primary Consideration C, it is necessary to have regard to the following matters:
·the Applicant relocated to Australia in 2009 when he was an adult (26 years old);
·he commenced offending around five years later in 2014;
·his offending includes multiple violent offences against women and is very serious;
·he made minimal efforts at rehabilitation while he was in the wider community;
·there is a real likelihood that he will re-offend;
·he has sought, and held, gainful employment, demonstrating a work ethic;
·he has volunteered at his temple, preparing food for community events; and
·if he is not permitted to return to Australia, it will cause Ms L emotional hardship (addressed below under Other Considerations).
Conclusion: Primary Consideration C
Taking all the above matters into account, Primary Consideration C weighs heavily against revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
The Applicant does not make any claims with respect to Australia’s non-refoulement obligations, and none arise on the evidence. This Other Consideration is not relevant.
(b) Strength, nature and duration of ties
The Applicant came to Australia as an adult at the age of 26. Balanced against that, he did not commence offending immediately after arriving. Based on these matters, he is entitled to a limited measure of weight under paragraph 14.2(1)(a) of the Direction. The Applicant lived in the wider Australian community for around nine years and for much of that time he was studying or working. He was a part of his local religious community and performed voluntary work at the temple. He has been described as generous and obliging by Ms L and her daughter and I accept that the Applicant helped other members of the community in his everyday life. He is entitled to moderate weight under paragraph 14.2(1)(a)(ii) of the Direction.
The Applicant has been in a relationship with Ms L for around six years and he has positive relationships with at least some of her children and a grandson. When he was asked if he had any friends in Australia apart from Ms L, he said “…I got like cousin – two cousins here. And like my best friend is here. And that’s it, that’s what – and my girlfriend, my partner, and her kids.”[128] One cousin lives in Western Australia and the other lives in Melbourne. The Applicant claimed to have had regular communication with them when he was in Australia.[129]
[128]    Transcript, page 78, lines 1 to 8.
[129]    Transcript, page 78, lines 25 to 40.
Ms L’s daughter gave evidence that she would be adversely impacted if the Applicant did not get his visa back because she needs Ms L here but Ms L would move to India.[130] Ms L’s evidence was that previously she was prepared to join the Applicant in India but she needs surgery on her back, she does not speak the language there, there is no work where the Applicant lives and there are continual power outages so it would be “like going back to prehistoric times”. She added that she has five children and six grandchildren and that it would not be fair on them if she moved to India. She expressed concern that if there was any further domestic violence, she would not have any support or counselling so she would be putting herself at risk.[131] Based on her evidence, I think it most unlikely that she would move to India if the Applicant were not allowed to return to Australia. While her separation from the Applicant has removed the risk of him physically abusing her, I am satisfied that she would prefer him to be with her in Australia, that the separation has caused her emotional hardship, and that she will continue to suffer emotional hardship if he is not permitted to return to Australia. The evidence does not disclose a likelihood of any significant adverse impacts of a non‑revocation decision on any other member of the Australian community.
[130] Transcript, page 131.
[131] Transcript, page 117, lines 25 to 48.
Paragraph 14.2(1)(b) of the Direction weighs moderately in favour of revocation.
Overall, I am satisfied that the strength, duration and nature of ties to the Australian community weighs moderately in favour of revocation.
(c) Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. This consideration is not relevant to the determination of this application.
(d) Impact on victims
This Other Consideration (d) requires a decision-maker to assess the impact of decision not to revoke on members of the Australian community, including victims of the non-citizens criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness. The views of Ms A are not known. Ms L will suffer emotional hardship if the Applicant’s visa is not returned to him. On the other hand, she will not be at risk of violence from him. This Other Consideration appears to contemplate the allocation of weight against, rather than for, the non-citizen. In any event, I have accounted for the impact of non-revocation on Ms L in Other Consideration (b). Accordingly, I do not allocate any weight under this Other Consideration.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
This Other Consideration directs me to take into account the extent of impediments the Applicant “may face if removed from Australia to [his] home country” [underlining added]. Where the Applicant has already been returned to his home country, I consider it my task to take into account the extent of impediments that he may face, or is already is facing, in establishing himself in India.
The Applicant is a 38 year old man who is able bodied. He said he had a condition that caused him pain and for which he takes medication. His evidence about this was not clear and he did not identify a diagnosed condition. He suggested that the medication did not work perfectly.[132] I am prepared to accept that he has a condition for which he takes medication and that causes him some problems. However, none of the evidence indicates that he suffers from anything debilitating. The Applicant previously had kidney stones but they were removed in India and he recovered. He also had the flu and malaria and he has recovered from those illnesses.[133]
[132] Transcript, page 79, lines 10 to 14.
[133] Transcript, page 16; page 79, lines 1 to 14.
The Applicant lived in India until the age of 26 and he did not claim to have experienced any language or cultural barriers.
In his revocation request, he said he suffered from depression and anxiety.[134] In his evidence he described that condition as reactive, based on events in his life, rather than something that is constant. He described his situation in India in very negative terms: he lives in a small village without shops, there is no work, there are big drug problems, and he does not have enough money. He is very unhappy there. He said he had very bad depression, and had tried to kill himself by cutting his arm but a friend took him to hospital.[135] The Applicant did not say whether he was able to obtain medication for depression in India but he did say medical care was not free of charge. It is reasonable to conclude that the Applicant does not have the same access to medical, psychological and pharmaceutical care as he did in Australia, but it would be on par with what other Indian citizens have. Further, when the Applicant had access to medication for his anxiety and depression in Australia, he initially took it but later stopped because he did not like the side effects. It is uncertain whether the Applicant would choose to take medication in India and therefore whether he is in any worse position than he would be in Australia in that respect.
[134]    Exhibit G1, section 501 G Documents, G2, page 63.
[135]    Transcript, page 19, lines 5 to 20.
The Applicant is currently abstaining from illicit drug use.
The Applicant was living with a friend when that person was able to offer him paid work. Since the pandemic, he has not had paid employment and had been living with a friend of his (deceased) father – the one who gave evidence. He has had to borrow money from a cousin who lives overseas. His evidence was that he intends to repay the money when he had a job and is therefore able to.[136]
[136] Transcript, page 56, lines 37 to 47.
In terms of social and economic support, the Applicant is in the same position as other Indian citizens, and in a worse position than he would be if he were in Australia. He has no family in India and a limited social network – seemingly the two people I have mentioned. He indicated that he is lonely. He is able to communicate frequently with Ms L and others using the telephone and electronic means.
The Applicant has re-established himself in India, and at the time of the hearing he had survived there for 12 months with the help of others. His standard of living was lower, and he was not able to support himself, however he had accommodation and financial support such that he was maintaining basic living standards in the context of what was available to other Indian citizens. He is able bodied, in reasonable physical health and has been able to earn income when work has been available. I do not consider the difficulties he has encountered to be insurmountable in terms of his continued ability to maintain basic living standards in India.
This Other Consideration (e) weighs moderately in favour of revocation of the reviewable decision.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: not relevant;
(b)strength nature and duration of ties: weighs moderately in favour of revocation;
(c)impact on Australian business interests: not relevant;
(d)impact on victims: neutral; and
(e)extent of impediments if removed: weighs moderately in favour of revocation.
CONCLUSION
I am now required to weigh all of the Considerations in accordance with the Direction.
In considering whether there is another reason to exercise the discretion afforded by s501CA(4) of the Act to revoke the mandatory visa cancellation decision, I find as follows:
·Primary Consideration A weighs heavily in favour of non-revocation;
·Primary Consideration B weighs to a limited extent in favour of revocation; and
·Primary Consideration C weighs heavily in favour of non-revocation.
To the extent that Primary Consideration B and Other Considerations (b) and (e) weigh in favour of revoking the mandatory visa cancellation decision, they cannot, even when combined, outweigh Primary Considerations A and C.
Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 153 (one hundred and fifty-three) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy

.................................[SGD].......................................
Associate
Dated: 30 November 2020

Date of hearing: 28 and 29 May 2020

Applicant:
By video

Solicitor for the Respondent:
Mr Adam Ray, by video

Clayton Utz

ANNEXURE A – EXHIBIT LIST

EXHIBIT

DESCRIPTION OF EVIDENCE

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501 G-Documents (paged 1 - 385)

-

28 Jan ‘20

R1

Respondent’s Statement of Facts, Issues and Contentions (paged 1 – 13)

1 May ‘20

1 May ‘20

R2

Respondent’s Bundle of Summons Documents (paged 1 – 368)

-

22 April ‘20

A1

Applicant’s Statement of Facts, Issues and Contentions (10 pages)

14 April ‘20

14 April ‘20

A2

Applicant’s Statement (7 pages)

14 May ‘20

14 April ‘20

A3

Letter of Support from a friend of Ms L (2 pages)

8 May ‘20

8 May ‘20

A4

Ms L’s daughter’s Letter of Support
(3 pages)

8 May ‘20

8 May ‘20

A5

Jatinder Pal Singh’s Letter of Support
(1 page)

26 April ‘20

8 May ‘20

A6

Harpreet Kaur Birdi’s Letter of Support
(1 page)

26 April ‘20

8 May ‘20

A7

Jasjeet Singh Bhachu’s Letter of Support (1 page)

26 April ‘20

8 May ‘20

A8

Shashpal Kaur’s Letter of Support
(1 page)

26 April ‘20

8 May ‘20

A9

Naresh Kumar Panch’s Letter of Support (1 page)

-

8 May ‘20

A10

Applicant’s submissions (2 pages)

14 May ‘20

14 May ‘20

A11

Applicant’s Bundle of Documents (132 pages)

-

25 May ‘20

A12

Applicant’s submissions received on 25 May 2020:

·     Email titled ‘sentencing’, received at 5:30PM;

·     Email titled ‘Risk to the community’, received at 7:13PM;

·     Email titled ‘Pending charges’, received at 9:20PM;

·     Email titled ‘Rehabilitation’, received at 10:14PM;

·     Email titled ‘Expectations of the Australian community’, received 10:17PM;

·     Email titled ‘Impediments if removed to home country and strength and nature of ties’, received 11:20PM; and

·     Email titled ‘Other contentions’, received 11:53PM.

-

25 May ‘20

[2020] AATA 4818

30 November 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

Evidence in revocation request	Evidence in hearing
She fell over and I stopped the car and went to help her. As I approached her she threw her phone at me, and got up and started screaming again.	I stayed next to my car, and my friend went… I had my friend to go and help her.[39]
She started running again and as I approached her to give her back her phone...	I just left the phone there, and I told her to pick up her phone, and I left.[40] [So you didn’t approach her to give her back her phone?] No [So after she threw the phone, it hit the ground, and you get back into your car, and your friend got back into the car, and you drove away?] Yes.[41]
I got back in my car and left and went back home. I read her phone and showed [Ms L] the text messages.	[Do you recall if the phone had a cover or not?] I didn’t know, because I didn’t pick the phone.[42] … my friend tried to give her the phone, and she didn’t (indistinct) he left the phone there, and we left.[43] [… when you were arrested, the police found her phone on you. That’s the truth, isn’t it?] Yes, she didn’t took - like, my friend went to give her phone, she didn’t took it, and then I (indistinct) I said, “I paid for that. I’m going to take it.”[44] [… you gave evidence before that you didn’t know if the phone had a cover or not, because it wasn’t you that picked it up?] I didn’t know - like, my friend left the phone in the car, and I didn’t touch it, and the cops took the phone from my car. I didn’t even see the phone...[45]

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (paged 1 - 385)	-	28 Jan ‘20
R1	Respondent’s Statement of Facts, Issues and Contentions (paged 1 – 13)	1 May ‘20	1 May ‘20
R2	Respondent’s Bundle of Summons Documents (paged 1 – 368)	-	22 April ‘20
A1	Applicant’s Statement of Facts, Issues and Contentions (10 pages)	14 April ‘20	14 April ‘20
A2	Applicant’s Statement (7 pages)	14 May ‘20	14 April ‘20
A3	Letter of Support from a friend of Ms L (2 pages)	8 May ‘20	8 May ‘20
A4	Ms L’s daughter’s Letter of Support (3 pages)	8 May ‘20	8 May ‘20
A5	Jatinder Pal Singh’s Letter of Support (1 page)	26 April ‘20	8 May ‘20
A6	Harpreet Kaur Birdi’s Letter of Support (1 page)	26 April ‘20	8 May ‘20
A7	Jasjeet Singh Bhachu’s Letter of Support (1 page)	26 April ‘20	8 May ‘20
A8	Shashpal Kaur’s Letter of Support (1 page)	26 April ‘20	8 May ‘20
A9	Naresh Kumar Panch’s Letter of Support (1 page)	-	8 May ‘20
A10	Applicant’s submissions (2 pages)	14 May ‘20	14 May ‘20
A11	Applicant’s Bundle of Documents (132 pages)	-	25 May ‘20
A12	Applicant’s submissions received on 25 May 2020: · Email titled ‘sentencing’, received at 5:30PM; · Email titled ‘Risk to the community’, received at 7:13PM; · Email titled ‘Pending charges’, received at 9:20PM; · Email titled ‘Rehabilitation’, received at 10:14PM; · Email titled ‘Expectations of the Australian community’, received 10:17PM; · Email titled ‘Impediments if removed to home country and strength and nature of ties’, received 11:20PM; and · Email titled ‘Other contentions’, received 11:53PM.	-	25 May ‘20