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

[2020] AATA 3134

Singh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3134 (26 August 2020)

Division:GENERAL DIVISION

File Number(s):      2018/5067

Re:Paramjeet Singh

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:26 August 2020

Place:Sydney

The reviewable decision made on 28 August 2018, being the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the cancellation of the applicant’s Class BF Subclass 154 Transitional (Permanent) visa, is set aside.

In substitution it is decided that the decision to cancel the applicant’s Class BF Subclass 154 Transitional (Permanent) visa made on 14 April 2017, is revoked.

........................[SGD]...............................................

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

MIGRATION – mandatory visa cancellation – failure to pass the character test – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 79 applied – where offending very serious – where there is risk of reoffending – protection of the Australian community – best interests of minor children in Australia – expectations of the Australian community – strength, nature and duration of ties to Australia – impediments to removal – decision set aside and substituted 

LEGISLATION

Migration Act 1958 (Cth) ss 501, 501CA

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185

SECONDARY MATERIALS

Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

26 August 2020

BACKGROUND

1. The applicant is a 40-year-old Indian citizen. He first arrived in Australia on 21 March 1988 as the holder of a Class UA Visa at the age of eight. He was ultimately granted a Class BF Subclass 154 Transitional (Permanent) visa on 25 June 1998.

2. The applicant has a long history of offending in Australia since he was 19 years old. Between 1998 and 2017, the applicant has been convicted of numerous offences which are set out in a National Police Certificate dated 14 March 2018 as follows:

Court date	Offence	Court outcome
11/05/1998	Drive conveyance taken w/o consent of owner	Fined $500
16/12/2002	Common assault Destroy of damage property <$2000	s.9 bond – 2 years s.9 bond – 2 years
28/07/2004   & 08/06/2005	Common assault Destroy of damage property <$2000	Annulment granted/dismissed s.9 bond – 2 years, supervision NSW probation obey all reasonable directions for counselling, anger management
11/02/2011	Common assault	Fined $900
30/07/2015	Assault occasioning actual bodily	Fined $750, s.9 bond – 18 months
harm
Fail to appear in accordance with	s.10A conviction with no other
bail	penalty
02/11/2015	Common assault (2 counts)	12 months’ imprisonment
suspended on entering s.12 bond for
12 months
Fail to appear in accordance with	Dismissed s.10
bail
Possess unauthorised pistol	Concurrent - 4 months’
imprisonment suspended on
Have in custody a laser pointer in	entering s.12 bond, supervision
public place	NSW probation
(call up) Assault occasioning actual	4 months’ imprisonment suspended
bodily harm	on entering s.12 bond, supervision
NSW probation
19/10/2016	Fail to appear in accordance with bail	s.10A conviction with no other penalty
13/03/2017	Common assault (dv)	s.10A conviction with no other
penalty
(call up) Common assault	12 months’ imprisonment commencing 18/01/2017
(call up) Common assault
12 months’ imprisonment commencing 18/02/2017
16/03/2017	Dishonestly obtain financial advantage by deception Possess/attempt to, prescribed restricted substance  Goods in personal property suspected being stolen  Shoplifting  (call up) Assault occasioning actual bodily harm (call up) Possess unauthorised pistol  (call up) Have in custody a laser pointer in public place	15 months’ imprisonment suspended on entering s.12 bond Fined $300, s.9 bond for 15 months 1 month imprisonment commencing 16/03/2017 Fined $300, s.9 bond 15 months 4 months’ imprisonment commencing 16/03/2017 4 months’ imprisonment commencing 16/03/2017 4 months’ imprisonment commencing 16/03/2017
31/05/2017	Goods in personal property suspected being stolen	s.9 bond – 12 months
29/06/2017	(call up) Dishonestly obtain financial advantage by deception (call up) Possess/attempt to, prescribed restricted substance (call up) shoplifting	2 months’ imprisonment commencing 20/04/2017 2 months’ imprisonment commencing 20/04/2017 2 months’ imprisonment commencing 20/04/2017
30/06/2017	Possess prohibited drug	s.10A conviction with no other penalty
26/10/2017	Common assault (dv) (2 counts) Contravene AVO (domestic) (8 counts) Contravene AVO (domestic) (17 counts) - taken into account Form 1 Act with intent to influence witness (2 counts)	Aggregate sentence of 13 months’ imprisonment  Reduced to 11 months on appeal

1. On 14 April 2017, the applicant’s visa was cancelled under section 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) and on 28 August 2018, a delegate of the Minister made a decision under section 501CA(4) of the Act not to revoke the mandatory cancellation.

2. The applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the delegate’s decision not to revoke the visa cancellation on 4 September 2018.

3. On 20 November 2018, the Tribunal (differently constituted) affirmed the delegate’s decision to not revoke the decision to cancel the applicant’s visa.

4. The applicant lodged an application with the Federal Court of Australia for judicial review of the Tribunal’s decision on 27 December 2018.

5. On 11 October 2019, the Federal Court of Australia ordered the decision of the Tribunal be set aside and the matter be remitted to the Tribunal for redetermination according to law.

   THE ISSUES

6. The issues before the Tribunal are:

   (a)does the applicant pass the character test as defined in section 501 of the Act?

   (b)if the applicant does not pass the character test, whether the Tribunal is satisfied that “there is another reason” why the decision to cancel the applicant’s visa should be revoked?

   RELEVANT LAW

7. As both parties agreed that the applicant does not pass the character test set out in the Act, the sole issue the Tribunal must consider is whether to exercise its discretion under section 501CA(4) of the Act to revoke the mandatory cancellation of the applicant’s visa.

8. Accordingly, the issue before the Tribunal is whether, having regard to Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘Direction 79’), there is any other reason why the mandatory cancellation of the applicant’s visa should be revoked.

9. There are a number of relevant principles contained in paragraph 6.3 of Direction 79 that provide the framework within which the task of exercising discretion is to be approached:

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

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

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

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

   (5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

   (6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no

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

10. Direction 79 sets out primary and other considerations that must be considered, where relevant, when deciding whether to revoke the mandatory cancellation of a visa. Primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. Those primary considerations pursuant to Part C of Direction 79 are as follows:

    (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.

11. Direction 79 also sets out other considerations that must be taken into account, which include but are not limited to:

    (a)international non-refoulement obligations;

    (b)strength, nature and duration of ties to Australia;

    (c)impact on Australian business interests;

    (d)extent of impediments to the applicant if removed from Australia; and

    (e)impact on victims.

    The applicant’s evidence

12. The applicant gave evidence that he accepted all his convictions and expressed considerable remorse for the grief he had caused, both to his victims and to his family. He also expressed contrition for the work that he had imposed on the police and judicial system in Australia as a result of his offending.

13. The applicant said that he had used the last three years to improve his relationships with his family and reflect on his previous behaviour, patterns of offending and anger management. During the applicant’s time incarcerated his biological daughter was born, and he said he now accepts his problems with anger management and illicit substance use, alongside the need to change his behaviour if he is to remain and support his family in Australia.

14. The applicant said that if he were granted another chance to continue his Australian visa, he would return to full-time work and contribute to the Australian community. He said that he recognised that remaining in Australia is a privilege.

15. The applicant gave evidence that his father was 65 years of age and his stepmother was 72 years of age. The applicant has a three-year-old biological daughter from his relationship with his previous partner, Ms Makepeace. He said that he loves his daughter and they video call almost every day. He said that he really wanted to be present in Australia to see his daughter grow up, as well as support his parents as they grow older.

16. Under cross-examination, the applicant accepted that his relationships in the past have caused a great deal of stress to his father and stepmother, to Ms Makepeace and to his stepsister. He acknowledged that his stepsister has three minor children and that there was a period where she did not want to visit her father and stepmother when the applicant was around. The applicant acknowledged that he had been abusive towards his father and stepmother and that prior to his incarceration he had predominately been in contact with them when he wanted money. The applicant said he understood why his father, stepmother, stepsister and Ms Makepeace would have all had serious concerns, because of his previous behaviour. He said he regretted this immensely.

17. The applicant gave evidence that whilst in prison and in Villawood Immigration Detention Centre (‘Villawood’) he had attended a number of courses which focused on behaviour and emotion, decision-making and strategies to deal with stress and anger in a variety of situations.

18. The applicant said that he had suffered from Post-Traumatic Stress Disorder (‘PTSD’) and had found the psychological treatment in detention to be beneficial in addressing this. The applicant accepted that he had had issues with anger management over a long period of time. He said that he saw a psychiatrist in early 2020 and that he planned to continue mental health treatment both in Villawood and if he were released into the Australian community. He also said that he had attended drug and alcohol counselling, but under cross-examination he admitted that there was no such contemporaneous evidence of this before the Tribunal. In fact, he had missed a number of previous appointments.

19. The applicant accepted that there had been a number of behavioural incidents that he was involved in whilst he was in Villawood, which involved aggression towards other inmates and destruction of property. The applicant admitted that periodically he had displayed anger whilst in detention but went on to explain that it was a very confined environment which could lead to tension between the inmates. He said that he had not been involved in any physical attacks on other persons whilst detained. The applicant denied that he had ever been in possession of any contraband materials whilst he was in detention.

20. When questioned by the respondent’s representatives, the applicant said that there had been mistakes made in the recording of various incidents, namely an identity mix-up with another detainee who had the same name but a different identification number. The respondent’s representative subsequently withdrew some of the incidents from the documents before the Tribunal at the hearing.

21. The applicant said that the SERCO security risk assessment made on 18 December 2019 which rated him at a “high” risk of “aggression / violence” was not a correct depiction of his current risk, and said that he had in fact tried to extricate himself from aggressive situations whilst in detention. He said, however, that he understood the concerns about the possibility of his reoffending.

22. The applicant said that he had no ties to India. He said that life in India was “alien” to him and that he has never left Australia since his initial arrival. The applicant said that he would have no support at all in India and that he feared for his mental health if he were to return.

23. The applicant said he had no living relatives he spoke with in India and that all his relatives resided in Australia. When cross-examined, the applicant agreed that his biological mother and two siblings remained in India when the applicant came to Australia with his father, but he said he had no contact with them and was estranged. The applicant said that he believed his father had a brother living in India but also had no contact.

24. The applicant said that he spoke only a little Punjabi, although he said he sometimes spoke to his father using Punjabi. Mostly his conversations with his father are in English.

25. The applicant gave further evidence under cross-examination that he had been “couch surfing” before he went to live with Ms Makepeace at her accommodation and that he did not have any property in Australia.

26. The applicant drew the attention of the Tribunal to the report of his psychologist, the treatment he had been receiving, the reasons for the treatment and the fact that he was continuing to work on the issues he said had caused him to offend.

27. The applicant provided the Tribunal with a psychological report, which provides information on the applicant over the period from 5 March 2018 to 24 September 2018. The report addressed a range of issues relevant to the applicant’s offending conduct and risk of recidivism, including his diagnosis of PTSD, the symptoms of this condition and his ultimate acceptance of the need to seek professional medical help to address his mental health issues. The report also recognised the applicant’s completion of relevant aggression and domestic violence courses and provided information on what the applicant would consider doing to handle situations to avoid reoffending and violent behaviour. I have also considered that the report provides a “risk assessment” of the applicant at 27 August 2018 where his risk of harm to others was rated “low”, particularly in light of his protective factors such as his young daughter, family support, future orientation, motivation to change, high level of engagement in psychological therapy and increasing levels of insight.

    Mr Jatinder Pal Singh Natha’s evidence

28. The applicant’s father, Mr Singh Natha, gave evidence that he had a very difficult relationship with the applicant in the past, including verbal altercations and an occasion where the applicant had pushed him. He said that his current relationship with his son is very good and that he understands that the applicant is very sorry about his behaviour in the past.

29. Mr Singh Natha said that he loves his son very much, that they speak regularly and that their conversations are in English and Punjabi.

30. When cross-examined by the respondent’s representative, Mr Singh Natha confirmed that at the time of a home visit by officers of the Department of Corrective Services prior to the applicant going to jail, there had been reference to a distanced relationship with the applicant. Mr Singh Natha was unaware of the applicant’s drug use and record of violence at that time.

31. When asked about the supports the applicant would have if he were returned to India, Mr Singh Natha said that there would be no-one to support his son. He said his brother, although living in India, was elderly and unable to assist the applicant.

32. Mr Singh Natha said that although the applicant’s biological mother had stayed in India and their two daughters had stayed with her, he did not have contact with them or know anything about them.

    Ms Nargis Pal

33. Ms Pal is the applicant’s stepmother and has raised the applicant in Australia.

34. Ms Pal confirmed that the applicant now has a good relationship with his father and said that she thought that the applicant had developed and grown as a person since spending time in jail and immigration detention.

35. Ms Pal said that the applicant had not displayed aggression towards her.

36. She agreed that she had made certain comments to officers of the Department of Corrective Services during the home visit prior to the applicant going to jail, including that she and her husband had a distant relationship with the applicant, that they were unaware of his criminal behaviour or drug abuse, that he could be aggressive and angry and that her stepdaughter did not want to visit the house with her three children when the applicant was there.

1. Under cross-examination, however, she said that when she was speaking to officers of the Department of Corrective Services, she had been very angry with the applicant and that her answers reflected this anger rather than the true situation at the time. In particular, she said that it had been incorrect to say that her daughter would not go to the home if the applicant was there.

   Ms Danielle Makepeace’s evidence

2. Ms Makepeace was not present at the current hearing before the Tribunal and the Tribunal was advised by the applicant that she preferred to rely on her statement and previous evidence at the last Tribunal hearing.

3. In her statement, Ms Makepeace said that it was important for her and their young daughter that the applicant remain in Australia. Ms Makepeace said that she had been to see the applicant regularly both in jail and in immigration detention with their daughter. She said that her daughter knew who the applicant was and that they had a “very special bond”.

4. Ms Makepeace said that she believed that the applicant has improved as a result of the things that he had been through. She felt that the applicant had paid heavily for the mistakes he had made, but that he had learnt a lesson and changed for the better.

5. Ms Makepeace also said that she did not have fears or concerns for her own safety or that of her daughter and that she had the Apprehended Violence Order (‘AVO’), which was issued to protect her and her daughter, varied so that the applicant could have regular contact with them both. She said that they have reached an agreement that if the applicant is released from Villawood their daughter will spend every second weekend with the applicant.

6. The statement of Ms Makepeace was broadly in line with the evidence that she gave at the previous Tribunal hearing.

7. It should be noted that at the previous hearing Ms Makepeace admitted that the applicant had put pressure on her to not go to court in relation to assault charges against the applicant, which resulted from an altercation between Ms Makepeace and the applicant. However, under cross-examination, Ms Makepeace said that she did not feel pressured in relation to giving evidence at the previous hearing before the Tribunal.

   Mr Sanjay Bhosale’s evidence

8. There was also a letter from Mr Bhosale, a businessman and President of the ACT chapter of the Australia-India Business Council, put into evidence. Mr Bhosale was not available for cross-examination.

9. Mr Bhosale referred to the fact that the applicant had suffered from exposure to violence during his childhood in Punjab. He said that he was a good person but “struggles with anger management issues”. Mr Bhosale said that the applicant would benefit from assistance in this regard.

10. Mr Bhosale said that the applicant would struggle if he were returned to India and that he had no ties there.

    PRIMARY CONSIDERATIONS

    Protection of the Australian community

11. Turning to the first of the primary considerations, namely the protection of the Australian community from criminal and other serious conduct, this consideration requires the Tribunal to look at the nature and seriousness of the applicant’s behaviour and the risk to the Australian community if he were to engage in similar behaviour in the future.

    Nature and seriousness of the crime

12. I have considered Paragraph 13.1.1 of Direction 79, which sets out the factors which decision-makers must have regard to when considering the nature and seriousness of the applicant’s criminal offending or other serious conduct.

13. The applicant has a long criminal history starting from the age of 19. The number of offences and the fact that they continued after numerous warnings and minor jail sentences is significant and could properly be viewed as demonstrating a certain disregard for the law.

14. It is of particular concern that a number of the offences involved violence against members of the public who were simply going about their daily routine, which should be considered as particularly serious in nature. This includes an incident on 10 September 2015, where the applicant punched and kicked a pharmacist and a third-party at a Chemist Warehouse store.

15. The applicant was also convicted of assault occasioning actual bodily harm on 2 November 2015. On this occasion, the applicant placed the victim, a person who he was staying with at the time, in a headlock, punched him in the face and threw him to the ground, after which he continued to punch him.

16. Police reports indicate that there were also a number of domestic violence incidents involving his previous partner, Ms Makepeace. Most of the police reports between the applicant and his previous partner were reported as verbal incidents. However, on 25 December 2016 a violent confrontation escalated when Ms Makepeace was pregnant with the applicant’s own child. I have had regard to Ms Makepeace’s police statement, where she stated that the applicant had thrown a half empty can of Jim Beam and Coke at her and she had run out of the house, scared that the violence would escalate. At the time Ms Makepeace told the police that she did not want the applicant to approach her or enter her premises anymore as she feared for the safety of her unborn child.

17. Furthermore, on 2 November 2015 the applicant was convicted for having a prohibited weapon and in 2017 he was convicted of dishonestly obtaining financial advantage by deception, possessing prescribed restricted substance and found with goods in personal property suspected of being stolen.

18. In 26 October 2017, the applicant was convicted of two counts of act with intent to influence a witness, as a result of his attempts to influence Ms Makepeace about her evidence in relation to his assault charge. The transcript of the telephone conversation is before the Tribunal and reads, in part, as follows:

    Offender [applicant]: You have to wrap me up really, really, really good baby. .... If you have to put stars on me, you know what I mean... like, do the stat dec, like, write out the stat dec as in like, like, by all means there was never any violence between us, by all means, the assault charges are all wrongly claimed. Do you know what I mean?

    Victim [Ms Makepeace]: Yep.

    Offender [applicant]: Like, you’ve gotta say that. And say by all means, I’m pregnant with my partner’s child and my partner’s not even allowed to see me. In fact he’s in gaol for something he shouldn’t be in gaol for...it is my statutory declaration that, I would like to declare that there has never been violence.

    Just say look the traumatic, the trauma got to you. Like my mate even said ‘Even if your girl blames herself’.

19. The attempt to influence Ms Makepeace in relation to her evidence must be viewed as particularly serious. It was an attempt to subvert the course of justice. There was no doubt that the applicant knew that what he was doing was wrong and that he was taking advantage of Ms Makepeace.

20. The applicant’s domestic violence against Ms Makepeace must also be viewed very seriously. Direction 79 makes it quite clear that the Australian community has a low tolerance for such behaviour. It is even more serious in light of the fact that Ms Makepeace was pregnant at the time and that this made her even more vulnerable.

21. Put together, the domestic violence and the attempts to influence a witness are of particularly concern, as acknowledged by Magistrate Keogh when she said in her sentencing remarks:

    I note from looking at his records that he has breached a suspended sentence, I note also he has a history of violence so that is a consideration when it comes to the prospects of rehabilitation... That violence occurred at a time when he (sic) was an order which was to restrict his behaviour and provide that victim with protection, and clearly it did not... I also accept generally that some of that contact was relatively benign but the justice offences are really serious, influencing a witness carries a period of seven years... He asked the victim in the manner to retract her evidence and then not attend court. They are of the type that as was acknowledged, that strike at the heart of the justice system and also at the protection afforded to persons in need of protection by orders such as apprehended violence orders and the community’s concerns they also strike at the community’s concerns about the protection of vulnerable victims in relationships which are unfortunately the subject of domestic violence.

22. It is also relevant that the applicant’s offences continued over a period of nearly 20 years until his imprisonment in 2017 and resulted in him being convicted of nearly 30 offences, including 17 breaches of AVO orders.

23. In light of the above factors, I regard the applicant’s criminal conduct as very serious and this consideration weighs heavily in favour of non-revocation of the cancellation of the applicant’s visa.

    Risk to the Australian community

24. Paragraph 13.1.2 of Direction 79 states that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.

25. The applicant has a long criminal history, with a number of serious offences involving assault and domestic violence. He has also engaged in theft and property damage.

26. The applicant was assessed as having a medium/high risk of reoffending in the intensive correction order assessment report of 14 February 2017. The report noted a number of factors, including the applicant’s criminal history, education/employment, family/marital status, accommodation, leisure, companions, drug/alcohol problem, emotional/personal and attitude/orientation which were likely to contribute to further offending.

27. In contrast, the applicant’s psychologist report at 27 August 2018 said the applicant’s risk of harm to others was rated “low”, particularly in light of his protective factors such as his young daughter, family support, future orientation, motivation to change, high level of engagement in psychological therapy and increasing levels of insight.

28. At the hearing, the applicant expressed significant remorse in relation to his past behaviour and said that he understood the effect of his behaviour on his victims, his parents and family, his former partner and the community more generally.

29. The applicant made brief mention of the fact that he had suffered from PTSD as a result of a traumatic event that occurred in 2015. In considering the evidence provided by the applicant at the previous hearing before the Tribunal, it is uncontentious that in 2015 the applicant witnessed a fatal and traumatic stabbing outside the apartment where he was living. The applicant intervened to protect the victim who was unknown to the applicant and, a result, was himself threatened by the assailant. The applicant exhibited considerable bravery during this incident in trying to protect the victim, as acknowledged by Magistrate Keogh in her sentencing remarks in October 2017.

30. The applicant appears to have been psychologically affected by the incident but to have not sought medical support or intervention around the time of the event, as he failed to accept that he had a problem at the time. However, at the hearing the applicant said he had been attending counselling recently whilst in Villawood to discuss his PTSD with a psychologist. He openly acknowledged that his PTSD was a problem that he needed to continue to address. The applicant provided clinical records of his treatment dated 5 March 2018 to 24 September 2018 in support of this statement. Whilst the applicant did not provide contemporaneous evidence of his mental health treatment, he said he was currently receiving counselling for his PTSD and would continue with treatment if he were to be released into the community.

31. The applicant believes that his largely unaddressed PTSD played a role in his subsequent criminal behaviour. At the hearing, the applicant did not provide the Tribunal with any contemporaneous medical treatment plan. The applicant did say that if he had not been self-represented, a legal advisor may have obtained such a report on his behalf.

32. It is relevant that the applicant has been involved in a number of behavioural incidents at Villawood involving either destruction of property or altercations between other inmates and staff. Despite these incidences, which are perhaps not completely unexpected in a very stressful environment such as a detention centre, the applicant does appear to have demonstrated some restraint although clearly continuing to exhibit some underlying anger management issues.

33. Given the applicant’s long criminal history, the nature of his offences alongside the lack of any documented plan for ongoing treatment for his anger management issues and PTSD, I find that the applicant does continue to pose a risk to the Australian community.

34. The risk is, in my opinion, not high given the applicant’s acknowledgement of his issues, the steps he has taken to address these issues and the recent psychologist report which is referred to at paragraph 29. It is also relevant that the applicant arrived in Australia at the age of eight. Accordingly, principle 6.3 paragraph 5 of Direction 79, which states that “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”, is relevant. I have taken this into account, and it is a mitigating factor.

35. This primary consideration taken as a whole weighs heavily against revocation of the delegate’s decision to cancel the applicant’s visa.

    Best interests of minor children

36. The applicant’s daughter is three years old and was born in Australia whilst the applicant was incarcerated in May 2017.

37. His daughter currently lives with her mother, who is her primary carer. There is no evidence that the applicant has ever contributed financially to his daughter’s upbringing.

38. I accept the applicant’s evidence that he has regular telephone contact with his daughter and there is also evidence from the applicant and Ms Makepeace of the daughter visiting the applicant in detention. Ms Makepeace voluntarily sought and was successfully granted a variation of the current AVO conditions to allow the applicant to have contact with her and her daughter to allow for this.

39. Ms Makepeace in her evidence before the previous hearing said that she has no intention of taking their daughter to India. There is no doubt that the separation resulting from the applicant’s visa cancellation would limit any meaningful relationship he is able to have with his daughter. This separation is clearly not in the best interest of the applicant’s daughter.

40. Reference was also made during the hearing to the applicant’s sister who has three minor children. No evidence was given as to the ages of those children and there was also no evidence that the applicant had any contact with them or played any part in their lives. In fact, any evidence was to the contrary, specifically evidence given to officers of the Department of Corrective Services during the pre-sentencing visit that the sister would not bring the children to the parent’s house if the applicant were present (although this evidence was contradicted by the applicant’s stepmother at the hearing before the Tribunal). The evidence was not clear enough to allow a determination to be made as to the best interest of the applicant’s nieces and nephews having a relationship with him or any adverse effect that the applicant’s visa cancellation could have on them.

41. On the balance of the evidence before the Tribunal, I find that the applicant does have an ongoing and important relationship with his minor daughter. It is clearly in her best interests for the relationship to continue in a meaningful but age appropriate way, including being able to spend time with her father physically present.

42. I give this primary consideration medium to heavy weight in favour of revocation.

    Expectations of the Australian community

43. In FYBR v Minister for Home Affairs [2019] FCAFC 185 the Full Federal Court decided by majority that it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. Rather, the expectations of the community that decision-makers are required to consider are those set out in the Direction at paragraph 11.3 of Direction 65, which is analogous to current paragraph 13.3(1) of Direction 79.

44. The applicant has been convicted of domestic violence and violent offences. The impact of domestic violence cannot be downplayed. It has extremely harmful effects on its victims, specifically the applicant’s previous partner whilst she was pregnant with his child and was vulnerable.

45. Having regard to the provisions of paragraph 13.3 of the Directions and the applicant’s long criminal history of offences, including violence and domestic violence offences, the Australian community would expect that the applicant is not given the privilege of holding an Australian visa.

46. Given the applicant’s long criminal history, the nature of the offences and the fact that there is some risk of reoffending, I give substantial weight to this consideration which weighs in favour of not revoking the delegate’s decision to cancel the applicant’s visa.

    Strength, nature and duration of ties

47. The applicant has lived in Australia since the age of eight for almost 32 years. His education has taken place in Australia. Effectively, Australia is the only place he has ever known and is his home.

48. I accept the evidence that the applicant has made an effort to improve his relationship with his father, stepmother and Ms Makepeace. The applicant’s father and stepmother, who might properly be considered his closest family, gave evidence that they would be extremely upset if the applicant were unable to remain in Australia. His parents indicated a willingness to have the applicant live with them if he were released from detention and the adverse effect that the decision to cancel the applicant’s visa would have on them.

49. The applicant also clearly has an ongoing relationship with his daughter and, although it may be possible for him to continue contact with her via various online platforms if he were in India, there is no doubt that this is much less satisfactory than ongoing physical contact, especially as his daughter is very young. Ms Makepeace has clearly demonstrated that she wants the applicant to be part of their daughter’s life.

50. The applicant has also worked whilst he was in Australia and there was no evidence of him having received welfare. He has gained skills in Australia, including a diploma in real estate and, in his evidence which I accept, he stated that he wanted to work and contribute to the financial support of his daughter.

51. When balancing the ties that the applicant has in Australia to his family and daughter and given that the applicant has resided in Australia since he was eight years old, I find this consideration weighs heavily in favour of revocation of the delegate’s decision to cancel the applicant’s visa.

    Extent of impediments

52. The applicant has spent most of his life in Australia. He has never visited India, travelled to any other country since his arrival in Australia and said that India felt “alien” to him.

53. Both the applicant’s father and his stepmother gave clear evidence that the applicant would have no support if he were to return to India. Although there was evidence that the applicant’s biological mother remains in India along with the applicant’s biological sisters, there is no evidence that the applicant had ever had any contact with them or knows of their whereabouts. There was also evidence that the applicant’s father had a brother in India and that the brother had children. However, there was no evidence of any ongoing contact between the applicant and his uncle and cousins in India. In fact, the applicant’s father said that he did not believe that his brother would be in a position to assist the applicant if he were returned to India.

1. The applicant and his father gave evidence that the applicant was able to speak some Punjabi, although with some limitations. The applicant’s lack of familiarity with India, its customs and the language would, in my opinion, be a barrier to his returning to India, even if he were able to find work in an area where he has had some experience. There was no evidence as to what supports, if any, would be available to the applicant if he were to return to India. In particular, it would be unlikely that he would be able to access ongoing treatment for his PTSD and depression, particularly when he first arrives.

2. I give significant weight to this consideration which weighs in favour of revocation.

   Impact on victims

3. The only victim that gave evidence before the Tribunal was Ms Makepeace, who was a witness for the applicant. However, it is reasonable to assume that there was an adverse impact on other victims of the applicant’s violent behaviour, especially the victims of assault.

4. I give this consideration limited weight in favour of non-revocation of the delegate’s decision.

   CONCLUSION

5. This is a difficult case because of the seriousness of the applicant’s criminal conduct and likelihood of recidivism, which must be weighed against the applicant’s attachment and ties to Australia, the impediments to his removal and the best interests of minor children, particularly the applicant’s three-year-old daughter.

6. The applicant has lived in Australia since the age of eight and those closest to him appear willing to provide him with ongoing support in Australia. Australia is the only country he has ever really known, and all his significant connections are here. He has suffered from PTSD as a result of an incident during which he exhibited considerable bravery in attempting to protect a member of the Australian community. This may have contributed to his offending conduct post 2015.

7. It was quite clear at the hearing that the applicant is highly intelligent, although his undoubted capacity may not always be exercised in ways that are for the benefit of the community, those around him or indeed the applicant personally. It was clear at the hearing that the applicant is well aware of the difficult situation he is currently in as a result of his offending behaviour and the grave consequences of him reoffending, particularly on his visa status. From the evidence, he is quite capable of turning his life around, is willing to take appropriate steps to do so and become a productive member of the Australian community as he continues to address effectively and with proper support his mental health and anger issues.

   DECISION

8. Having weighed all the above considerations, I find that the correct and preferable decision is to set aside the reviewable decision made by a delegate on 28 August 2018 to not revoke the cancellation of the applicant’s Class BF Subclass 154 Transitional (Permanent) visa.

9. In substitution, the decision to cancel the applicant’s Subclass 154 Transitional (Permanent) visa made on 14 April 2017, is revoked.

I certify that the preceding 100 (one hundred) paragraphs are a true copy of the reasons for the decision herein of the Hon. John Pascoe AC CVO, Deputy President.

.............................[SGD]...........................................

Associate

Dated: 26 August 2020

Date of hearing:	3 August 2020, 4 August 2020
Applicant:	In person (by video conference)
Solicitors for the Respondent:	Mr M Hawker, Sparke Helmore Lawyers