Singh (Migration) - [2024] AATA 3099

Singh (Migration) [2024] AATA 3099 (23 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Gursimran Singh
REPRESENTATIVE:  Mr Ejaz Khan
CASE NUMBER:  2402920
HOME AFFAIRS REFERENCE(S):          BCC2022/4682328
MEMBER:Kate Millar
DATE:23 July 2024
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.

I, Deputy President K Millar certify this is the
Tribunal's statement of decision and reasons.
Statement made on 23 July 2024 at 9:32am
CATCHWORDS
MIGRATION – cancellation – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – ground for cancellation – convicted of an offence – stalk/intimidate – common assault – contravening an apprehended violence order (AVO) – consideration of discretion – compelling need to remain in Australia – degree of hardship – circumstances giving rise to cancellation – mental health issues – psychotic depression – best interests of the child – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43
CASES
CFE16 v Minister and CFD16 v Minister [2020] FCCA 1083
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

Mr Singh held a Partner (Provisional) visa until it was cancelled by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs on 13 February 2024. Mr Singh’s visa was cancelled because he was convicted of a number of offences including stalking or intimidation with intent to cause fear or physical or mental harm, common assault and contravening an apprehended violence order (‘AVO’).
Mr Singh has applied for a review of this decision, arguing that his visa should not be cancelled because at the time of the offences he was acutely mentally ill and is now receiving treatment, and because he has a child who is an Australian citizen.
Mr Singh appeared before the Tribunal on 22 April 2024 to give evidence and present arguments. He was represented in relation to the review. The Tribunal also received oral evidence from his sister, Ms Pushpinder Kaur. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
This is an application for review of a decision dated 13 February 2024 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
Under s 116 of the Act, the Minister may cancel a visa if satisfied that certain grounds specified in that provision are made out. If satisfied that a ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy. The issue in this case is whether a ground for cancellation is made out, and if so, whether Mr Singh’s visa should be cancelled.
Does the ground for cancellation exist?
A visa may be cancelled under s 116(1)(g) of the Act if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in reg 2.43 of the Migration Regulations 1994 (the Regulations). As it applies to Mr Singh reg 2.43(oa) prescribes a ground for cancellation where a visa holder has been convicted of an offence against a law of the Commonwealth, State or Territory, regardless of the penalty imposed.
On 10 October 2023, Mr Singh was convicted of 3 counts of stalk/intimidate with the intention to cause fear of physical harm, 3 counts of common assault and one count of contriving a prohibition or restriction in an AVO.
Mr Singh was sentenced to a Community Correction Order for a period of 2 years for stalking/intimidation and assault. No further penalty was imposed for the breach of the AVO.
As Mr Singh has been convicted of offences against a law of New South Wales, the ground for cancellation in s 116(1)(g) exists. As this ground does not require mandatory cancellation under s 116(3), the Tribunal must consider whether the visa should be cancelled.
Consideration of discretion
There are no matters specified in the Act or Regulations that must be considered in deciding if a visa should be cancelled where a ground for cancellation has been established. The Tribunal has had regard to the circumstances of this case, including matters raised by Mr Singh, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
The circumstances of the offending
The offences are described in a statement of agreed facts prepared by the Office of the Director of Public Prosecutions in New South Wales and were provided by Mr Singh.
The first assault arose on 26 October 2022 from Mr Singh approaching 2 women who were walking, one of whom was with her 4-month-old son. Mr Singh asked one of the women where he could buy beer and shook her hand, using this to pull her towards him. He followed the women and when they stopped he asked one of them to come with him and have a good time. He grabbed one of the women’s arms above the elbow and yelled after them “I love you”, winking and blowing kisses. The women called police who met them after they had finished their walk.
The second assault was on the same day against a woman playing with her dog at the park. He approached the woman, touched her upper back and asked to pat her dog. He asked her to go and have a drink with him. She tried to leave, and he hugged her and kissed her on the cheek. After about 5 seconds she managed to push him off. She walked away but noticed him following her and called her father because she felt unsafe.
The third offence is intimidation and occurred on the same day. The victim went to collect her children from childcare, but as one was asleep decided to go to the shops instead so her child could sleep. She was approached by Mr Singh outside the childcare centre and asked questions about her name and whether this was a school for little children. He followed her to her car and then followed her in his car for some time. The victim parked and rang her husband. She reported the incident to the police that night.
The next offence was common assault and intimidation, with the assault attached to the intimidation on a Form 1. On the same day Mr Singh approached another victim who was in the park with her 5-month-old old son and 2-year-old daughter. Mr Singh approached, looked into the pram and stroked the baby’s leg. The victim took the baby out of the pram and put him into a carrier. Mr Singh asked if she was going to breastfeed her child and said she should breastfeed her child ‘now in the park’. He walked off and sat in his car nearby for a few minutes before driving off. Police arrived shortly after to obtain a statement.
The same day, in another offence of common assault and intimidation, the victim went to collect her nephew from a childcare centre. As she was strapping her nephew into his car seat, Mr Singh approached and used one finger to touch the child’s cheek. He remained nearby smiling and saying words such as “lovely”. He approached to shake the victim’s hand, but she gestured no and put some items in the passenger seat then got into the driver’s seat. When she looked up, she saw Mr Singh was on the footpath directly in front of the entrance to the childcare centre, then noticed him getting into his car as she pulled out. The childcare centre was notified of the incident, and it was reported to police the following day.
The final offence was the breach of an Apprehended Violence Order (AVO) made on 26 May 2022 which prevented Mr Singh from assaulting, stalking, intimidating or harassing his former wife Ms Kaur.
At this time the parties had separated. At about 3.30am on 27 October 2022 Mr Singh was knocking on the back door of Ms Kaur’s unit and calling her name. She did not answer and sent him text messages to leave her and the child alone, to stop knocking on the door and to leave. At about 10.15am she woke up and saw Mr Singh in the house. She said he could not come in there, that this was her house and she wanted him to leave. He apologised and left. After he left Ms Kaur noticed blood on the bathroom floor and Mr Singh’s telephone.
A final AVO was made for a period of 2 years from 29 September 2023. The order states Mr Singh was present in Court when the order was made.
Mr Singh was released from custody on 10 October 2023.
On 20 October 2023, Mr Singh was convicted of 3 counts of stalk/intimidate with intent to cause fear and 3 counts of assault and was sentenced to a Community Correction Order for a period of 2 years commencing 10 October 2023 and expiring 9 October 2025. A conviction for contravening the AVO was imposed with no further penalty.
At the hearing, it became apparent that Mr Singh was in custody pending hearing of these charges for approximately 12 months before he was sentenced. His representative stated this was because he was unable to obtain instructions from Mr Singh due to his mental illness.
Mr Singh’s evidence about the offending
On being asked why his visa had been cancelled, Mr Singh said his wife told him he would never be granted a permanent visa, and then went on to say he was earning money and providing for his wife nd child. On being asked again why his visa was cancelled he said he had no idea.
When asked about the convictions recorded in the decision of the delegate, Mr Singh said he was assaulted by his wife and was burned with hot tongs, and she was not letting him be in a close relationship with her. On being asked if he was arrested, he said he was arrested because his wife’s sister was interfering. He said he had never broken into his wife’s house.
Mr Singh was asked about the facts of the offence and whether had knocked on his wife’s door at approximately 3am, she sent him texts telling him to leave her and the child alone, and that she woke up later and he was in the house. He said he was taking her groceries. On being asked if he sent her texts, he said if he starts talking about things in the past he gets stressed and he does not have that phone. On being asked if he entered the house, he said she told him the marriage was over and pushed him and kicked him out of the house. He could not respond to whether he had breached an AVO.
On being asked if he had done anything wrong, he said he may have but now he is living with his sister who makes sure he takes his medication and puts money in his account. On being asked what he had done that was wrong, he said he was very close to his child, but his wife was not letting him get close and he was bringing things for his child like nappies. When asked why he was arrested and convicted, he said he might have made mistakes and has admitted he is guilty, but he was not allowed to see his child and his wife would assault him and not let him see his child. He said that when he saw other people’s children, he was thinking why his wife would not let him be close to his child when he was bringing things for the child.
While these responses may be an indication of Mr Singh’s mental illness, they show that despite medical treatment for his illness over a lengthy period including while in prison, Mr Singh does not recognise problems with his behaviour or in his interaction with his wife. He was unable to identify the behaviour that resulted in his arrest, and blamed his wife as he said she was not letting him see their child and blamed his sister-in-law for interfering.
The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
Mr Singh came to Australia on 19 August 2021 on a Partner (Provisional) visa as the spouse of an Australian citizen, having married his wife Ms Kaur in India. He said they started living separately approximately 6 months after his arrival in Australia. The relationship has now broken down and there is an AVO preventing Mr Singh from assaulting or threatening, stalking or intimidating, harassing Ms Kaur or destroying her property.
The parties have a daughter who was born on 18 October 2021. Mr Singh provided the birth certificate which names him as the father.
It is claimed on his behalf that he has made allegations of family violence perpetrated against him. His representative states that evidence to support this claim will be provided when requested by Home Affairs to process his permanent partner visa. No evidence other than the oral evidence of Mr Singh and his sister was placed before the Tribunal.
At the hearing, Mr Singh said his wife burned him with heated tongs and was not letting him have a close relationship with her. He said his wife’s sister was interfering in the relationship. He said he could not show police the marks on his body where he was burned as his wife threatened that if he did, she would do this more. He said did not receive medical treatment for his burns because he finished work at 3pm and the doctor closed at 4pm and used an ointment to treat his burns. His sister repeated this claim.
This claim is not supported by any other evidence. He did not raise this during the hearing for the AVO at which he was present. I do not accept that he would not be allowed to show police marks on his body or that he was afraid his wife would do this again.
Mr Singh has an AVO against him preventing him from harassing or intimidating Ms Kaur. A final order was issued while Mr Singh was in Court. The agreed facts relating to his offending included where he was knocking on her door in the early hours of the morning, and breaking into the property where his wife and their daughter were living. No mention is made on the agreed facts of acts of violence against Mr Singh.
While the relationship with Ms Kaur has broken down and the original purpose of Mr Singh’s presence in Australia was as the spouse of Ms Kaur, he may retain his eligibility for a permanent visa, and therefore continue to be in Australia for the purpose for which he applied for the visa if he has suffered family violence during the course of the relationship,[1] or the exception relating to his child[2] applies. Mr Singh has not provided information that could show he has made a valid claim of family violence. However, as he has a child of the relationship, I infer in his favour that he is in Australia for the purpose for which his visa was granted.
[1] Cl 100.221(4)(c)(i) of Part 100 of Schedule 2 to the Migration Regulations 1994.
[2] Cl 100.221(4)(c)(ii) of Part 100 of Schedule 2 to the Migration Regulations 1994.
Mr Singh provided a referral to a psychiatrist from his general practitioner stating that while in prison Mr Singh had been diagnosed with depression with psychotic features. It is reported his mood has been stable on medication and he has good compliance. A report of Dr Ascerie of the Western Community Mental Health team dated 17 April 2024 states Mr Singh’s initial diagnosis was reactive psychosis but with a strong differential diagnosis of bipolar disorder type 1, and Mr Singh is being managed for bipolar disorder. Dr Ascerie states Mr Singh has engaged appropriately with the service and has been compliant with his medication and that Mr Singh is likely to require long term management and would benefit from ongoing psychiatry input and the stability provided by a permanent visa.
Mr Singh did not provide any further information on whether his mental health means that he has a compelling need to remain in Australia. The current Department of Foreign Affairs and Trade report on India dated 29 September 2023 reports at [2.27] that:
DFAT assesses that people living with mental illness and/or neurodiversity face a low risk of official discrimination, except to the extent that they may not be able to access appropriate healthcare. This is true of many Indians with various medical issues, as outlined in the section on healthcare. Indians living with mental illness and/or neurodiversity face a moderate risk of societal discrimination.
Mr Singh will be able to access treatment for his mental health more readily in Australia. If he considers he will be persecuted because he has a mental illness, he may apply for a protection visa, and this can be assessed at this time.[3]
[3] Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17 at [30], COT15 v Minister for Immigration and Border Protection (No 1) [2015] FCAFC 190 at [38].
I find his mental illness, while persuasive in relation to hardship he may experience if he returns to India, is not a compelling reason to remain in Australia.
Mr Singh has a child in Australia and does not currently have any contact with his child. He has not taken action to have contact with his child as he does not consider he can do so, but says he wants to see his child. Whether he can establish contact and the degree to which Mr Singh may be involved in her life in the future is unknown. I consider this a compelling reason to remain in Australia but give it limited weight due to his lack of contact with her, and the uncertainty about the involvement he will have in her life.
The extent of compliance with visa conditions
There is no information before me to show that Mr Singh has breached the conditions of his visa.
The degree of hardship that may be caused (financial, psychological, emotional or other hardship)
Mr Singh says he cannot return to India if his visa is cancelled because he will not be able to get a job. In India, he said he had a farm on lease and had completed training to be a physical education teacher and was working at a school. On arriving in Australia, he worked as a casual forklift driver in Auburn and then at a chicken farm. He has worked in Australia in farming, and said he wants his visa reinstated so he can obtain farming work. He said he wants job opportunities and to be busy like he was in the past.
His sister said that before he came to Australia, Mr Singh was about to sit the public service test, but he is now too old to do so. Before coming to Australia, he worked as a physical education teacher for a private school. His sister says his visa should be reinstated and he should be allowed to work at least 20 hours a week.
A statutory declaration sworn by his sister states she had been providing Mr Singh with care and accommodation and is paying his expenses. His sister states she is responsible for taking him to the doctor and ensuring he takes his medication. It is claimed he has serious mental health issues and is unable to provide for himself, however his sister also said in oral evidence that Mr Singh’s visa should be reinstated so he can work.
His sister said that if Mr Singh returns to India, people in the village will constantly ask him about why he has returned and will also ask after his wife and child and that this will cause him stress. I accept this is the case.
Mr Singh’s parents are in their 70s and have retired from government positions. They have a farm where they grow organic rice and receive a government pension. Mr Singh’s parents have supported both of their children in Australia, including as recently as last year in providing funds for Mr Singh’s legal representation.
I do not accept he will be unable to work in India. He has undertaken farm work in Australia, and I consider he could undertake similar work in India. Both Mr Singh and his sister state his visa should be reinstated so he can work, and I consider this shows he is able to work despite his mental ill health. His parents are involved in farming and have shown a willingness to support their children in Australia.
Mr Singh said that if he returns to India he can live with his parents, and this was confirmed by his sister. I find that he can access accommodation and financial support from his parents if he returns to India, and that he is capable of working.

I find Mr Singh would face emotional hardship and stress if he were to return to India without his wife and child, and that this hardship is exacerbated by his mental illness. I find that he would have access to food and shelter and can work.
If Mr Singh’s visa remains cancelled, he will be unlawfully in Australia and may be detained. As he has a diagnosis of a mental illness, his detention may lead to an exacerbation of the symptoms of his mental illness, and I take this into account in making this decision.
The circumstances in which ground of cancellation arose, and if cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence.
The circumstances in which the ground for cancellation arose include family violence and assaulting/intimidating women with small children or babies who were understandably frightened. It also includes assaulting person playing with their dog in a park. In the normal course of events, these are circumstances that weigh very heavily in favour of cancelling Mr Singh’s visa.
However, the offences other than the breach of the AVO occurred on the same day and on being taken into custody, Mr Singh was found to be suffering psychotic depression. He also now claims to himself be the victim of family violence, and that his wife burned him with heated tongs and threatened to have him deported. Mr Singh claims his sister-in-law interfered, and as her husband was a police officer, his wife and her sister would tell him they could have him arrested. Given he was ultimately arrested for breaching the AVO, this aspect of their advice was correct.
Mr Singh provided a referral from his general practitioner to the psychiatrist at a public mental health clinic stating that when he was in prison he was diagnosed with depression with psychotic features and reporting that his mood has been stable on medication, with good compliance.
Mr Singh provided a report of Mr Sam Borenstein, a clinical psychologist, dated 23 February 2023. Mr Borenstein’s report states he had before him the police fact sheet and a letter from Ms Wendy Hoey, Chief Executive of Justice Health and Forensic Mental Health Network dated 13 January 2023. Mr Singh was asked to provide the letter from Ms Hoey but did not do so.
Mr Borenstein reports that at his first interview on 20 November 2022 Mr Singh was not oriented to time, place or person, and he assessed Mr Singh as severely depressed. Mr Borenstein reports he obtained a history from Mr Singh’s sister through Mr Singh’s legal representative, and requested a detailed psychiatric assessment of Mr Singh while he was in prison.
Mr Borenstein states he attempted to interview Mr Singh again on 28 February 2023, but Mr Singh was unable to provide an account of his life circumstances and appeared unkempt and dishevelled. Mr Singh repeatedly referred to his son and denied knowing about the AVO or that he had done anything wrong. He told Mr Borenstein he believed he had a happy marriage.
The history provided, presumably by Mr Singh’s sister, was that Mr Singh was evicted from his family home several months earlier because of domestic violence offences and had lived in his car with little food for a period. It is reported he was homeless for the majority of 2022 and visited his sister in Adelaide but only stayed for a few days.
Mr Borenstein reports that the reply from Ms Hoey states:
that although Mr Singh does have a mental illness, it does not currently fulfil criteria as a mentally ill person as defined under s 14 of the Mental Health Act 2007, and would not currently be considered for admission to the Long Bay Mental Health Facility, therefore no action under Section 86 of the Act was taken.
Mr Borenstein said Mr Singh was constantly ruminating about his current life circumstances. He initially said he wants to be with his children to take care of them and that his wife knows he will take care of the children. On further questioning, Mr Singh reported he has one child, a son aged 12 months. I note that at this time he had a daughter who was approximately 2 years of age, although the incorrect gender could result from interpreting issues.
Mr Borenstein concluded Mr Singh suffers from a severe major depressive illness. Mr Borenstein states:
I note the offences for which Mr Singh is charged occurred on the same day, and over a short time frame, most likely a consequence of Mr Singh struggling with significant mental health impairment leading up to and during the offending period, following Mr Singh leaving the family home, and comments from his sister, who Mr Singh visited in Adelaide. Mr Singh’s sister described her brother as acting strange, and in all likelihood exhibited some thought disorder suggestive of an underlying psychotic illness. The nature of the thought disorder is perseverative in nature, which represents the nature and extent of constant ruminations surrounding his current life circumstances, and concerns for his son, which forms the basis of his Major Depressive Illness.
I remain of the opinion Mr Singh requires psychiatric treatment in a hospital setting before he will be able to provide any instruction to allow his solicitor to represent him in current criminal matters.
A letter from Dr Ascerie, a senior psychiatric registrar with the Western Community Mental Health Team, reports he has been managing Mr Singh’s care for the previous 3 months. Mr Singh’s initial diagnosis was reactive psychosis with a strong differential diagnosis of bipolar disorder, his condition is managed with a strong suspicion of a bipolar disorder. Dr Ascerie states Mr Singh has been compliant with his medication and his mental health has been stable. Mr Singh is likely to require long-term medication management and will benefit from ongoing psychiatry input. Dr Ascerie reports they hope to transition his care back to his general practitioner and ideally to private psychiatry in the near future. Dr Ascerie states they hold “no reservations” about his visa application and support his application and states Mr Singh is likely to benefit from the stability of a permanent visa as well as the opportunity to work and support himself.
There is no information before me to show that Mr Singh’s behaviour after his release from prison has brought him to the attention of police or that he has repeated his prior behaviour towards women or children in the community.
It was submitted on behalf of Mr Singh that he has made claims that he was the victim of family violence and was burned by his wife with hot tongs. As discussed above, I do not accept this occurred and do not consider this part of the circumstances in which the ground for cancellation arose.
His sister gave evidence that the relationship between Mr Singh and Ms Kaur was good while they were in India. She said when they first came to Australia it was fine, and their baby was born, however then Mr Singh’s sister-in-law interfered and asked for money from his parents. She said Ms Kaur and her sister started threatening Mr Singh, saying they would never let him get permanent residency and that they could cancel his visa. She said Mr Singh’s sister-in-law’s husband is a police officer and Mr Singh was told that he could arrange for Mr Singh to be arrested.
This is not supported by any other information and is contrary to the AVO that prevents Mr Singh from assaulting, threatening, stalking, harassing or intimidating Ms Kaur or destroying her property. If Mr Singh continued to contact Ms Kaur after the AVO was issued, there is a risk he would be arrested in accordance with the AVO.
A report from a general practitioner dated 2 February 2024 states Mr Singh expressed “concern about his daughter and passively aggressive towards his wife conduct … History from his sister and him suggested alleged victim of abuse and violence by his wife. I do not have any other evidence supporting it so I am unsure about its certainty”. This leaves me with significant concerns about any interaction Mr Singh may have with his wife in the future.
It was submitted by the legal representative that the cause of Mr Singh’s mental illness was family violence committed by his wife because he was ‘completely fine’ until the separation from his wife. I do not have any medical evidence to support this assertion, nor was this the subject of any other oral evidence or statutory declarations before me. In the absence of any supporting evidence, I do not accept this submission.
The circumstances in which the ground for cancellation arose include Mr Singh’s offending and his deteriorating mental health. I do not accept these circumstances include that he was a victim of family violence perpetrated by his wife.
While I accept Mr Singh suffers a mental illness, his mental health did not markedly improve in the approximately 3 months between the 2 assessments conducted by Mr Borenstein. By the time of the assessment with Dr Ascerie, Mr Singh’s mental health is described as stable, however as he could not identify why his actions towards his wife were wrong, or what he had done to be convicted of the offences, and I am left without any certainty of the degree to which being stable removes the risk to his wife or other members of the community.
The past and present behaviour of the visa holder towards the Department
There is no information before me to indicate that Mr Singh has been anything other than cooperative with the Department.
Whether there would be consequential cancellations under s 140
There are no consequential cancellations that apply if Mr Singh’s visa is cancelled.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
If Mr Singh’s visa is cancelled, he will become liable to detention under s 189 of the Act and removal from Australia under s 198 of the Act.
Under s 48 of the Act, if Mr Singh’s visa is cancelled, there are limited other visas for which he can apply. He will also subject to Public Interest Criterion 4013 for many types of visa, which would prevent him being granted a visa for 3 years unless there are compelling and compassionate circumstances (cl 4013(3) of Schedule 4 to the Regulations).
Mr Singh can apply for a protection visa if he considers he is unable to return to India because he is owed protection obligations.
Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation.
(i) Non refoulement
Non-refoulement is a principle that a person should not be returned to a country where they would face torture, cruel inhuman or degrading treatment or punishment or other irreparable harm.[4] Australia is signatory to international conventions which have articles that relate to non-refoulement.
[4] ThePrincipleNon-RefoulementUnderInternationalHumanRightsLaw.pdf (ohchr.org)
Under s 36A of the Act, if Mr Singh applied for a protection visa, his claims to be owed protection must be considered before any character related considerations.
Where a person can apply for a protection visa, assessment of the non-refoulement obligations enacted in the Act can be deferred to the assessment of an application for a protection visa. However, a decision maker must read, identify, understand, and evaluate representations made about non-refoulement.[5]
[5] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [24].
Vague claims were made on Mr Singh’s behalf that he would face difficulty accessing mental health services and medication if he were to return to India, and that his parents were elderly and could not care for him. His sister said that if he returns to India, he will be mentally stressed because people will ask him why he has returned and will ask about his wife and child and as a result of this stress he may not take his medication. She also said that if he is required to leave Australia he will be stressed and may try to take his own life.
Given the vague and general nature of these claims with no supporting material I do not consider on the material before me that Australia’s non-refoulement obligations would be breached if Mr Singh were to return to India. However, Mr Singh may apply for a protection visa and can make further representations with supporting material at that time.
(ii) Rights of the Child
Article 3 of the Convention on the Rights of the Child (‘Convention’) requires that in all actions concerning children the best interests of the child shall be a primary consideration.
Article 9(1) of the Convention requires State parties to ensure that a child is not separated from a parent except when competent authorities subject to judicial review determine in accordance with applicable law and procedure that such separation is necessary for the best interests of the child.
Article 9(3) of the Convention includes that State parties will respect the right of a child who is separated from a parent to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.
Article 3 of the Convention requires that in all actions concerning children, the best interests of the child shall be the primary consideration.
This has been the subject of differing interpretations. In CFE16 v Minister and CFD16 v Minister,[6] (CFE16 & CFD16), Judge Riethmuller referred to Article 3 of the Convention and stated:
… it therefore appears that at least a consideration in exercising the general discretion in the context of this case (where it would affect the children of the parties) would require that at least a primary consideration would be the best interests of the child.[7]
[6] [2020] FCCA 1083.
[7] At [19].
Judge Riethmuller states that whether the Convention must be considered in circumstances where a ministerial instruction does not apply did not need to be addressed in the judgement. This was because the delegate proceeded on the basis that the Convention applied, and the Tribunal did not identify to the applicant that it intended to approach the case differently.
Judge Riethmuller said the task required of the Tribunal was to identify the child’s best interests and then consider whether other matters were such as to outweigh the child’s best interests.[8] Judge Riethmuller states that:
… by adopting and ratifying the Convention, Australia has taken a position with respect to the way in which Australia will consider and deal with the interests of children. The position adopted by the Commonwealth in ratifying the Convention is one of principle, to make the primary consideration the best interests of the child “in all actions concerning children”. The Convention does not make the best interests of the child the only primary consideration, but ensures it is promoted to a position of being a primary consideration against which even serious defalcations by parents or other adults must be weighed.[9]
[8] At [24].
[9] At [25].
Mr Singh has a daughter who lives with her mother in New South Wales. Mr Singh lives with his sister in South Australia. He has not taken steps to obtain access to his daughter. It is submitted on his behalf that if his mental health improves, he intends to commence divorce proceedings in the Federal Circuit and Family Court and seek an order to see his child.
Mr Singh has not taken any action to see his child to the time of the hearing, and said he is required not to see his child for a period of 2 years, and he was told by Correctional Services he cannot approach his wife for 2 years. The AVO does not specify that he cannot approach his child, and his understanding that he cannot see his child is not consistent with receiving legal advice throughout his criminal matter and the current migration matter. Nevertheless, it appears to be his understanding. He has not had contact with his child since he was arrested.
If his visa is cancelled, Mr Singh will continue to be an unlawful non-citizen and is liable to detention and removal from Australia. This will limit his ability to take action to have contact with his daughter. His daughter is now approximately 2 years old and is not of an age where she could readily communicate with him by electronic means, particularly if her mother does not facilitate this contact.
Mr Singh can continue to seek contact with his daughter while offshore and can apply for other visas, however as noted above there are other impediments to the grant of many other visas.
The Tribunal assumes in Mr Singh’s favour that it is in the best interests of his daughter that she retains the possibility of establishing in-person contact with her father in the future, however this is a possibility rather than an existing arrangement, and is in circumstances where he is not a primary caregiver or a person who has regular contact with his child.
Given Mr Singh’s offending and the associated risk to the community should he reoffend, and his limited contact with his child, the best interest of his daughter is not the only primary consideration in this matter, and Mr Singh was advised this consideration may be outweighed by other factors.
If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia.
The visa under consideration is a temporary visa, however a Partner (Provisional) visa provides a pathway to obtaining a permanent visa.
Mr Singh’s sister is a strong support for him, and he has strong ties with her. His child is in Australia which also provides a strong tie to Australia.
He is not currently working and did not raise any ties with businesses in Australia or other community members.
CONCLUSION
Mr Singh has a strong connection with his sister in the Australian community. He has a young child who will lose the possibility of establishing in-person contact with her father if the visa is cancelled and he is detained or is removed from Australia if he does not apply for another visa. As Mr Singh has a mental illness, the effect of his visa remaining cancelled including his detention and removal from Australia may exacerbate the symptoms of his mental illness. This is also the case if he returns to India and is asked why he has returned and about his wife and child.
If Mr Singh leaves Australia, he has the support of his parents and will have shelter and accommodation. He may seek farm work on his return. Mr Singh was convicted of offences involving women and children in the community. He has breached the terms of an AVO. While Mr Singh is receiving treatment for a mental illness, he was unable to identify the problems with his behaviour in the past and the risk remains that he will repeat the behaviour in the future. This is risk and his prior convictions outweigh the other factors in favour of not cancelling his visa, and I consider his visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.
Kate Millar
Deputy President