Zafari and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] AATA 19
•15 January 2024
Zafari and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 19 (15 January 2024)
Division:GENERAL DIVISION
File Number(s): 2021/6283
Re:Sumera Zafari
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Mr S. Webb, Member
Date:15 January 2024
Place:Canberra
The 31 August 2021 decision to refuse Mr Krunal Dinesh Dave’s application for a Partner visa is set aside and remitted to the Minister with the direction the visa is not refused on character grounds.
…………………[sgd]…………………….
Mr S. Webb, MemberCatchwords
MIGRATION – partner visa – discretion to refuse to grant visa – character test – risk visa applicant would engage in criminal conduct in Australia – Ministerial Direction No. 99 – primary and other relevant considerations – protection of Australian community – previous serious conduct – passage of time – strength, nature and duration of ties to Australia – marriage to Australian citizen – adverse impact – best interests of minor child not served by visa refusal – expectations of the Australian community – balance of considerations – decision set aside and remitted
Legislation
Migration Act 1958 (Cth), ss 499, 500, 501Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Nguyen v Minister for Immigration and Multicultural Affairs [2023] FCA 180
Zafari v Minister for Immigration, Citizenship and Multicultural Affairs No. WAD67/2023
Zafari and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 337Secondary Materials
Direction No 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023).
REASONS FOR DECISION
Mr S. Webb, Member
15 January 2024
Sumera Zafari (Ms Zafari), applied for review of the decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (Delegate) to refuse to grant Mr Krunal Dinesh Dave (Visa Applicant) a Partner (Temporary) (UF) visa (Visa).[1] Mr Dave is Ms Zafari’s husband. The refusal decision was made under s 501(1) of the Migration Act 1958 (Act) (cancellation decision).
[1] Exhibit 2, pages 651-654.
The cancellation decision was affirmed by the Tribunal: Zafari and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 337. Ms Zafari lodged an appeal against the Tribunal decision in the Federal Court of Australia. A jurisdictional error of the kind identified in Nguyen v Minister for Immigration and Multicultural Affairs[2] was identified and, in the result, by consent, the decision was set aside and remitted for determination according to law.[3]
[2] [2023] FCA 180.
[3] Zafari v Minister for Immigration, Citizenship and Multicultural Affairs No. WAD67/2023, Exhibit 2, folios 1070-1071.
I note in passing the legislative procedure set out in s 500(6) to (6L) of the Act are not applicable as Mr Dave resides in India and he is not in the migration zone.
Facts
The following facts are established by the documentary and oral evidence before the Tribunal.
Mr Dave was born in March 1991 in Ahmedabad, India.
He is a citizen of the Republic of India where he presently resides.
Ms Zafari was born in Afghanistan and first entered Australia in 2006. In 2008 she was granted Australian citizenship. She resides in Perth, Western Australia.
On 21 October 2008, at the age of 17, Mr Dave first entered Australia at Perth Airport. He held a Student (Class TU) (subclass 573) visa (Student visa).
Mr Dave initially enrolled in a Certificate IV in Software Engineering at Edith Cowan University and ultimately completed a Bachelor of Information Technology course at that institution.
In or about December 2008, Mr Dave obtained employment as a crew member in the McDonalds restaurant in Belmont. He obtained promotion to the position of crew trainer and, in 2010, shift manager. In or about October 2010, he was promoted to the position of first assistant manager, with staff, customer complaints and cash handling responsibilities.
In February 2011, Mr Dave commenced part-time employment as a BP Australia Ltd (BP) customer service representative, working shifts primarily in the BP service station stores at Midvale and Ascot. His responsibilities included handling merchandise stocks, dealing with customers and counter sales, and handling and reconciling cash and payments.
In November and December 2011, Mr Dave committed a number of offences at the BP service stations where he worked. He devised and implemented a scheme using stolen credit cards to transfer fraudulent refunds for legitimate fuel purchases to his private bank account or to gift cards. BP terminated Mr Dave’s employment on 22 December 2011 when his fraudulent conduct came to light. Mr Dave gave sworn evidence that when he discovered the amount of fraudulent refunds in his bank account, he disclosed what he had done to his manager. This aligns with information Mr Dave set out in the Personal Circumstances Form he lodged on 9 September 2020[4] and in his statements dated 25 November 2021[5] and 20 January 2022[6], but it does not align with the information set out in the Pre-Sentence Report (which refers to him being caught[7]) and the Mediation Report (which refers to BP investigating the transactions and confronting Mr Dave[8]) which were addressed in sentencing remarks by Magistrate Benn on 25 September 2012[9].
[4] Exhibit 2, page 686.
[5] Ibid, page 908.
[6] Ibid, page 961.
[7] Ibid, page 818
[8] Ibid, page 827.
[9] Ibid, page 811.
Between 16 April 2012 and 4 May 2012, Mr Dave undertook voluntary work experience with Austin Computers Ltd.[10] From 26 June 2012 to 20 July 2012, Mr Dave undertook voluntary work experience with Computer Sciences Corporation – Western Power.[11]
[10] Ibid, page 739.
[11] Ibid, page 741.
In October 2012, Mr Dave received an Outstanding Assistant Manager award from the McDonalds restaurant in Belmont.[12]
[12] Ibid, pages 742-745.
On 6 November 2012, Mr Dave was granted a further Student visa.
On 12 January 2014, Mr Dave was congratulated on completion of 5 years’ service at McDonalds.[13]
[13] Ibid, pages 749-750.
Mr Dave and Ms Zafari met through their work at McDonalds and commenced a personal relationship on or about 23 September 2014.
In December 2014, under a Foundation Scholarship from the Australian Computer Society Foundation, Mr Dave commenced work with Western Power and subsequently, in 2015, with ASG Group Ltd as an information technology Service Desk Analyst. He continued in this role until January 2016.[14]
[14] Ibid, pages 729 and 761.
On 20 July 2015, Mr Dave completed a Bachelor of Information Technology course at the Edith Cowan University.[15]
[15] Ibid, pages 756-760.
Mr Dave’s Student visa expired in September 2015. I note in passing Mr Dave appears to have remained in Australia after expiration of his Student visa. On the present evidence, it is not clear if he was granted a further visa at that time or if he remained in Australia as an unlawful non-citizen. As nothing was made of this during the hearing, I will go no further on this point.
On 10 December 2015, Mr Dave and Ms Zafari were married at Belmont, a suburb of Perth.[16]
[16] Ibid, page 41.
On 21 January 2016, Mr Dave and Ms Zafari departed from Australia.[17] Ms Zafari returned to Australia in March 2016.
[17] Ibid, pages 24 and 27-28.
On 3 October 2016, Mr Dave lodged an application for a combined Partner (Temporary)(Class UF) and Partner (Residence)(Class BC) visa, sponsored by Ms Zafari.[18]
[18] Ibid, pages 17-18
On 12 January 2017, Mr Dave was issued a Visitor (Subclass 600) visa. He entered Australia on 14 January 2017 and departed on 24 March 2017.[19] During this period Mr Dave resided with Ms Zafari.
[19] Ibid, page 768.
On 21 March 2017, Mr Dave was granted another Visitor (Subclass 600) visa. He entered Australia on 11 May 2017 and departed on 5 October 2017. During this period, Mr Dave resided with Ms Zafari. In June 2017, Mr Dave and Ms Zafari purchased a property in Cloverdale where they then resided. The property is under a mortgage in Ms Zafari’s name, alone.
On 2 November 2017, a delegate of the Minister refused to grant Mr Dave a further Visitor visa as the delegate was not satisfied Mr Dave’s proposed visit was temporary.
On 19 June 2018, a delegate of the Minister refused to grant Mr Dave a further Visitor visa as the delegate was not satisfied Mr Dave’s proposed visit was temporary.
On 12 August 2020, the Minister’s Department issued Mr Dave notice of intention to consider refusal of the Partner visa under s 501(1) of the Act on the grounds set out in s 501(6)(d)(i).[20]
[20] Ibid, pages 770-773.
On 2 September 2021, the Delegate refused to grant Mr Dave a Partner visa under s 501(1) of the Act.
On 6 September 2021, Ms Zafari applied to the Tribunal for review of this decision.[21]
[21] Ibid, pages 654-663.
On 1 March 2023, the Tribunal affirmed the Delegate’s decision. On 24 May 2023, the Tribunal’s decision was set aside and remitted for determination according to law by Perry J.[22]
[22] Ibid, page 1070
Criminal conduct and offences
Mr Dave’s history of offending conduct includes the following dishonesty and traffic offences.
On 31 May 2011, Mr Dave was convicted of the offence of unauthorised driving by a learner driver.[23] He committed the offence at 9.20am on 23 April 2011. Mr Dave was apprehended driving a motor vehicle without supervision and without displaying “L” plates. He was a learner driver at the time.[24] A fine of $100 was imposed.
[23] Ibid, pages 834 and 848.
[24] Ibid, page 852.
On 21 March 2012, Mr Dave was convicted of the offence driver failed to ensure a passenger under 16 restrained.[25] The offence was committed on 21 December 2011. Mr Dave was apprehended driving with a 4-year-old girl in the front passenger seat, wearing an adult seat belt without a child booster seat as required.[26] A fine of $250 was imposed with the loss of 4 demerit points.
[25] Ibid, page 832 and 848.
[26] Ibid, page 853.
On 16 August 2012, Mr Dave was convicted of the offence drive without lights illuminated.[27] The offence was committed on 5 April 2012. A fine of $100 was imposed with the loss of 3 demerit points.[28]
[27] Ibid, pages 836 and 848.
[28] Ibid, page 854.
On 25 September 2012, Mr Dave was convicted of the offence stealing as a servant and on 11 October 2012 he was convicted of two counts of cause a detriment to a person by fraud.[29] These offences occurred between 15 November 2011 and 15 December 2011.[30] On 18 occasions, Mr Dave manually transferred the cost of fuel legitimately purchased by customers to stolen ANZ and Citibank credit cards and directed refunds of the amounts originally paid to his own bank account. On 11 occasions, Mr Dave used the stolen credit cards to make direct purchases and transfer money to gift cards.[31] The details of his offending are set out in an uncontested Statement of Material Facts prepared by Western Australia Police, as follows:
[29] Ibid, page 847.
[30] Ibid, folios 826-827
[31] Ibid, pages 806-807.
(a)between 15 November 2011 and 1 December 2011, Mr Dave used a stolen ANZ credit card:
i.on 11 occasions to perform manual fuel corrections where he refunded $1,004.84 to his private bank account; and
ii.on 8 occasions to make direct purchases and transfer funds onto gift cards he retained in the amount of $1,113.16;[32] and
(b)between 12 December 2011 and 15 December 2011, Mr Dave used a stolen Citibank credit card:
i.on 7 occasions to perform manual fuel corrections where he refunded $1,539.99 to his private bank account; and
ii.on 3 occasions to make direct purchases and transfer funds onto gift cards he retained in the amount of $602.79;[33] and
(c)between 15 November 2011 and 13 December 2011, Mr Dave refunded $2,254.84 into his private bank account.[34]
[32] Ibid, page 856.
[33] Ibid, page 857.
[34] Ibid, page 858.
Mr Dave repaid $4,193.00 to BP Australia[35] and, at trial on 25 September 2012, he was convicted and sentenced to pay an $8,000 fine.[36]
[35] Ibid, page 828.
[36] Ibid, pages 812 and 847.
On 11 October 2013, Mr Dave was convicted of 2 counts of the offence wilfully mislead a person affecting the discharge of the person’s duty and an exceed speed limit in a speed zone offence.[37] The first wilfully mislead offence was committed on 11 July 2012.[38] The second was committed on 9 April 2013.[39] Mr Dave nominated his mother, Dipa Dave, as the driver of a speeding vehicle recorded by a ‘Poliscan’ speed camera on 11 June 2012 and a vehicle recorded driving 17 kilometres per hour over the speed limit on 12 March 2013. In each case, Mr Dave was the driver of the vehicle (his mother was not in Australia when the offences occurred). Mr Dave was fined $1,650.
[37] Ibid, pages 838, 840 and 847.
[38] Ibid, pages 847 and 860.
[39] Ibid, pages 847 and 861.
On 5 February 2014, Mr Dave was convicted of the offence no authority to drive – never held and disqualified.[40] The offence was committed on 8 January 2014. Mr Dave was given a licence disqualification for the period of 9 months and a $400 fine.[41]
[40] Ibid, page 847.
[41] Ibid, page 842.
On 6 June 2017, Mr Dave committed the traffic offence of drive motor vehicle using hand held mobile and was given an on the spot fine.[42] Mr Dave explained he did not use the mobile telephone, but it was visible and not affixed in the motor vehicle and he might have touched it. This account is supported by Ms Zafari’s evidence – I understand Ms Zafari was in the motor vehicle at the time.
[42] Ibid, page 865.
Issues
The issues for decision in this review are:
(a)whether Mr Dave satisfies the Tribunal he passes the character test set out in s 501(6) of the Act; and if not
(b)whether the discretion to refuse his application for grant of the Visa should be exercised.
When deciding whether to exercise the discretion to refuse to grant a visa under s 501(1) of the Act, the Tribunal must comply with directions issued by the Minister under s 499(1) of the Act, presently Direction no. 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction).
The previous decisions of the delegate and the Tribunal to refuse Mr Dave’s application for grant of the Visa were made before this Direction came into effect on 23 January 2023. Nevertheless, no issue was taken, correctly in my opinion, in respect of the applicability of the preceding Ministerial Direction no. 90 which was in effect at the time.
The Direction sets out Objectives in paragraph 5.1. Applicable principles are set out in paragraph 5.2:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
The Direction sets out the following instructions and guidance:
6. Making a decision
Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
7. Taking the relevant considerations into account
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
8. Primary considerations
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia;
(5) expectations of the Australian community.
…
9. Other considerations
(1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) legal consequences of the decision;
b) extent of impediments if removed;
c) impact on victims;
d) impact on Australian business interests
Character test
With regard to the character test set out in s 501(6) of the Act and the alternative grounds set out therein, the sole ground raised in the delegate’s decision and in these proceedings is set out in s 501(6)(d)(i):
(6) For the purposes of this section, a person does not pass the character test if:
(a) …;
…
(c) …; or
(d) in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i)engage in criminal conduct in Australia; or
(ii)…
…
Section 2 of Annex A to Direction 99 states in clause 6(2) that the grounds in s 501(6)(d) are enlivened if “there is evidence suggesting that there is more than a minimal or remote chance" of the specified conduct occurring in the event the person is allowed to enter Australia.
Mr Dave concedes he does not pass the character test on this ground.
In consideration of the evidence before the Tribunal documenting Mr Dave’s past criminal conduct, his conduct includes fraud and dishonesty offences for which he was charged and convicted. In the Tribunal proceedings, Mr Dave gave sworn evidence about these offences. He explained, when working in the Ascot BP service station store, he failed to follow procedure and did not record the number plates of some cars which departed without paying for fuel. He alleges, rather than admit to this and face the risk he might lose shifts or be held liable for the unpaid amounts, he paid the outstanding amounts using 2 credit cards left in the store by customers. He gave the following account in evidence during the first Tribunal hearing:
I wasn’t sure whether it actually worked or it didn’t go through, because the receipts didn’t really come out properly, or didn’t say, like, you know, it’s gone through. But it was all showing zero-zero for the approved pump. So I decided to do a manual correct where I needed another card to refund back the money that was charged to that – the other card. So in that occasion, I used my card to receive the refund money. So it really balances the till, but the refund would eventually come to my account.[43]
On Mr Dave’s account, he did this at the BP Ascot service station store and at the BP Midvale service station store using one credit card on approximately 19 occasions and using “other cards” on approximately 15 occasions from mid-November to mid-December 2011. At the first Tribunal hearing, Mr Dave explained:
I also loaded them with the gift card and those gift cards I used to pay for the driver in the – in that time that one more – a few more times after it happened afterwards. So I didn’t actually use the card to pay for the fuel, but I just used the gift card to pay for the fuel.[44]
[43] Exhibit 1, page 38.
[44] Ibid.
The account he gave police is set out in the NSW Police Statement of Material Facts.[45]
[45] Exhibit 2, pages 855-858.
It appears Mr Dave was keen to admit guilt and to demonstrate remorse when interviewed by police. He adopted a similar attitude when giving evidence. Nevertheless, Mr Dave’s evidence in the Tribunal hearings lacks clear explanation of why he planned and implemented the scheme to defraud his employer. The scheme required calculation and aforethought, involving three clear steps: manually reversing legitimate fuel purchase payments; manually debiting the purchase amount to a stolen credit card; and manually directing the refund from the original legitimate purchase to his private bank account. In addition, Mr Dave used the stolen credit cards to make purchases and to transfer funds onto gift cards. While using stolen credit cards in these ways might involve elements of opportunistic offending, the scheme Mr Dave devised to defraud his employer has a different character, involving deliberate planning and calculation.
Mr Dave repeatedly described these offences as a mistake he made when he was in a bad mindset. When pressed on this, Mr Dave accepted he made deliberate choices to engage in dishonest conduct which required some planning. His criminal conduct was partly opportunistic, but it involved deliberate planning and repeated commission of acts to steal from and defraud his employer on multiple occasions over a period of weeks. It is difficult to accept this conduct was a mistake. While the commission of an offence might be explained as an error of judgment by the offender, where the offender is caught and the commission of the offence is deliberately planned and repeated many times, characterising the offence as a mistake might generously be understood as an expression of regret. Even so, the question then arising is whether the regret is for the harm of the offence committed or the consequences of being caught. It is in this context issues of rehabilitation, insight and remorse arise when considering the risk of the person re-offending.
Mr Dave repeatedly and effusively expressed remorse for his offences. Nevertheless, there are real questions about the extent of his rehabilitation and insight into his past offending conduct, and whether he has been forthright in his evidence. There are significant inconsistencies between Mr Dave’s present account of what occurred in the commission of offences in 2011 and the information recorded in contemporaneous documents, including the WA Department of Corrective Services Mediation Report prepared for the Midland Magistrates Court[46], and Magistrate Benn’s sentencing remarks[47]. At the time, Mr Dave explained BP initially investigated the transactions in December 2011 and confronted him, whereupon he immediately admitted guilt and offered to repay the stolen funds, whereas now Mr Dave asserts it was he who disclosed his fraudulent offences to his manager following discovery of the stolen funds in his bank account.
[46] Ibid, pages 825-828.
[47] Ibid, pages 805-814.
Mr Dave gave sworn evidence he omitted key details from factual information he accepted was true at the time. He explained he did so because he was traumatised and had a complete breakdown[48] which prevented him from explaining why he committed the offences and precisely what occurred, omitting details he now asserts occurred, and caused him to admit to every single thing,[49] including details he now asserts are not true. This evidence is problematic. If it is correct, it suggests Mr Dave did not give a truthful account to corrective services officers and he may have misled the Midland Magistrates Court. If it is not correct, he has not provided a truthful account in his evidence before the Tribunal. Either way, it raises questions about the reliability of Mr Dave’s evidence.
[48] Exhibit 1, page 87.
[49] Ibid.
Further questions of a similar kind arise in respect of Mr Dave’s conflicting explanations and his sworn evidence in respect of the driving offence he committed at 9.20am on 23 April 2011.[50] He has given conflicting evidence about the circumstances of this offence:
I had an early work shift on the day… My uncle was my usual driving supervisor; however, he was not available to supervise my own driving that day due to his own work commitments and I drove the car by myself to attend my work shift.[51]
[50] Exhibit 2, pages 834 and 852.
[51] Exhibit 2, page 685.
When closely examined about the circumstances of this offence, Mr Dave stated he commenced work at 7.00am that day.[52] Under cross-examination, he explained:
I used to do an overnight shift. So work starts at - what do you call it - 11 o’clock in the morning, and finishes at 7.00 o’clock in the morning. That’s what it is. So I started Friday night at 11.00 pm and 7.00 o’clock in the morning, yes, I had to stay back to finish up (indistinct) and then I drove back home (indistinct).[53]
[52] Exhibit 1, page 75.
[53] Ibid, pages 75-76.
These inconsistencies reinforce concerns about Mr Dave’s reliability as a witness and about the truthfulness of accounts he has given.
These matters were squarely put to Mr Dave.
I prefer the contemporaneous records given to the Midland Magistrates Court. Mr Dave’s evidence of having a complete breakdown lacks any corroboration and his evidence on this point may be affected by the passage of 12 years.
Mr Dave’s failure to provide an explanation of why he committed the fraud offences troubled Magistrate Benn, and it troubles me.
Addressing the question of motive, Dr Phil Watts, an Adjunct Associate Professor in Clinical Psychology, reported:
32. In the Transcript [of Mr Dave’s trial on 25 September 2012] the Judge talks about “a bad mindset” being raised. Mr Dave believes that the concept of mindset was misunderstood in the cross-cultural explanation. He said that what he was trying to explain was that he does not know why his mind caused him to do what he did.
33. In my own discussion with Mr Dave in regards to this offence, much of the focus of why he did it seemed more about testing the process than actually stealing the money.[54]
[54] Exhibit 2, page 951.
When cross-examined on related points, Dr Watts considered Mr Dave’s offending may have involved a bit of curiosity:
… it would make sense that it starts off by doing something which is a little bit more legitimate, like trying to, you know, cover ones [customers] which have driven off [without paying], and then from there get the idea to take it a step further. I would say that would actually make more sense in terms of how he ended up where he ended up.[55]
[55] Exhibit 1, page 63.
Mr Dave’s inability or unwillingness to explain why he committed these offences and his assertion the offending conduct was not planned or calculated suggests a lack of candour or insight. Even despite any cross-cultural misunderstanding about the term ‘mindset’, Mr Dave’s attempt to pass off his offending as a mistake committed when he was young and in a bad mindset smacks of convenience in search of credulity.
These considerations go to the risk of him re-offending.
On this point, Dr Watts reported:
24. In summary, [Mr Dave’s] profile would indicate an absence of anti-social attitudes and a lack of factors which would typically be associated with offending. The main variable of note was Grandiosity, which would suggest a sense of entitlement.[56]
…
42. In terms of Mr Dave engaging in serious offences such as Stealing as a Servant, my opinion is that he would be of low risk, especially given the 10-year period since that time.
43. In terms of Mr Dave committing serious driving offences, I hold no particular reason to expect him to do so. However, in terms of the possibility of minor driving offences such as speeding, I would suspect that the sense of entitlement may cause him to justify minor variations. I am of the opinion he did not understand the seriousness of using somebody else’s name for the demerit points when he did so. However, I would be of the opinion that he will have learned the importance as a consequence of his actions, and I would consider him low risk for the more serious-end offences with which he has previously been identified.[57]
[56] Exhibit 2, Page 949.
[57] Ibid, pages 952-953.
I accept Dr Watts’ opinion that the best predictor of future behaviour is past behaviour and the risk of Mr Dave engaging in criminal conduct is at the higher end of low risk.[58]
[58] Exhibit 1, page 66.
I am satisfied the level of the risk is greater than minimal or trivial and, albeit at the lower end of the spectrum, it is of sufficient significance to meet the threshold set out in s 501(6)(d)(i) of the Act. For this reason, I am satisfied it is appropriate to accept Mr Dave’s concession he does not pass the character test on this ground.
That being so, the discretion to refuse to grant the Visa for which Mr Dave applied is enlivened under s 501(1) of the Act.
Discretion to refuse
Mr Dave asserts, in order to exercise the discretion to refuse to grant the Visa, the Tribunal must form a positive state of satisfaction, having applied and weighed the relevant considerations under the Direction. In his submission, the primary considerations in respect of the strength, nature and duration of Mr Dave’s ties to the Australian community and the best interests of a minor child in Australia outweigh considerations in respect of the protection of the Australian community from criminal or other serious conduct and the expectations of the Australian community. Other considerations, Mr Dave contends, are not relevant to the facts and circumstances of his case, or they should be given little weight.
The Minister is in broad agreement with Mr Dave’s identification of relevant considerations, including that other considerations are not relevant or should be given little weight. Nevertheless, the Minister argues the balance of relevant considerations weighs in favour of the exercise of the discretion to refuse to grant the Visa. In the Minister’s submission, the nature and seriousness of Mr Dave’s conduct, engaging in deliberate and repeated criminal acts of dishonesty and serial traffic offences, and the risk to the Australian community should he engage in further offences or serious conduct weigh heavily in the balance. The Minister contends, as a norm, the expectations of the Australian community in this case, where Mr Dave has engaged in serious conduct and there is an unacceptable risk he may do so again, albeit not a high risk, are that he should not be granted a visa and he should not be allowed to enter Australia. These considerations, the Minister argues, outweigh considerations in respect of the strength, nature and duration of Mr Dave’s ties to Australia through his wife and her family and the best interests of a minor child who is approaching the age of 18.
The primary considerations are set out in s 8 of the Direction:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia;
(5) expectations of the Australian community.
In the circumstances and facts of this case, I am satisfied the primary consideration in respect of family violence, and the other considerations in respect of refoulement and the extent of impediments if removed are not applicable. There is no evidence or suggestion of family violence of any kind. Mr Dave is not in Australia and presently resides in India. No deportation or refoulement issues arise. Consequently, it is not necessary to apply these considerations any further.
Protection of the Australian community
When considering the protection of the Australian community, the Government’s commitment to protect the community from harm resulting from criminal conduct or other serious conduct by non-citizens should be kept squarely in mind, and s 8.1 of the Direction states that:
… decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
It is also necessary to consider the nature and seriousness of Mr Dave’s conduct to date under s 8.1.1 of the Direction and the risk to the Australian community under s 8.1.2 should he commit further offences or engage in other serious conduct.
Nature and seriousness of conduct
It is necessary to have regard to the following matters set out in s 8.1.1:
(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i.violent and/or sexual crimes;
ii.crimes of a violent nature against women or children, regardless of the sentence imposed;
iii.acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i.causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii.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;
iii.any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
iv.where the non-citizen is in Australia, 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,, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)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).
h)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
To date, Mr Dave has committed serious dishonesty offences, including fraud and stealing offences. His most serious offences, defrauding his employer, were committed over a period of weeks in 2011. Mr Dave stole 2 credit cards issued by the ANZ Bank and Citibank and repeatedly used these cards in a scheme to transfer money to his personal bank account for which, ultimately, his employer was liable when the credit transactions were stopped by each bank. These acts were not apparently motivated by gambling, drugs or alcohol. Nevertheless, the stolen funds were held in his bank account until Mr Dave repaid the money to his employer.
When the matter came to trial on 25 September 2012, the potential significance of any conviction on his future intention to apply for a permanent residence visa was raised in sentencing submissions.[59] It can be inferred this was a matter taken into account by Magistrate Benn when sentencing Mr Dave. Thereafter, Mr Dave was squarely on notice of the potential consequence of further offending on his visa status thereafter.
[59] Exhibit 2, page 809.
He committed two further dishonesty offences in July 2012 and April 2013. Mr Dave passed off traffic offences to his mother in order to avoid penalties. These, too, are serious offences.
Mr Dave was not sentenced to a custodial term, but substantial fines were imposed for his dishonesty offences. This is consistent with the nature and relative seriousness of his offending conduct.
Mr Dave has not been convicted of any further dishonesty offences since April 2013.
In the period from 2011 to 2017, Mr Dave committed 7 traffic offences. Even though the traffic offences were of a relatively minor nature, each offence exposed members of the Australian community to risk of harm. He was fined and his driver’s licence was suspended. The most recent of these offences involved driving without a licence in 2014 and using a mobile telephone while driving in 2017.
In his application for the Visa, Mr Dave failed to disclose the traffic offence he committed in 2017 while visiting Australia on a tourist visa. He did not disclose his offences to his mother-in-law, Bibi Zafari (Mrs Zafari), and her husband prior to the first Tribunal hearing, but he has since done so. He disclosed his offences to Ms Zafari prior to their marriage.
While the trajectory of Mr Dave’s offending conduct is not one of increasing seriousness, the repetition and cumulative effect of his offending is a matter which weighs in favour of exercising the discretion to refuse his Visa application.
The weight given to this consideration is reduced by the passage of more than 10 years without evidence of Mr Dave engaging in further serious conduct or dishonesty offences in Australia or elsewhere.
Risk to the Australian community
In considering the need to protect the Australian community from harm, regard should be had to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.
In assessing the risk Mr Dave poses to the Australian community, it is necessary to have regard to, cumulatively, the matters set out in 8.1.2:
a) 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) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the non-citizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
c) where consideration is being given to whether to refuse to grant a visa to the non-citizen — whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Mr Dave has committed crimes of dishonesty, involving fraud and deception. There are serious offences. He has no record of committing crimes of violence. Should he engage in further dishonesty offences involving fraud and stealing, individuals and businesses in the Australian community would suffer financial harm. If Mr Dave engaged in further deceptive conduct, such as passing off traffic violations to others in order to avoid penalties, harm may be caused to the administration of traffic rules and related costs enforcing road safety.
On the evidence of Dr Watts, Mr Dave has a low risk of committing further serious offences. This is reinforced by the passage of more than 10 years without evidence of him committing serious offences. In Dr Watts’ opinion, Mr Dave has an enlarged sense of entitlement which may cause him to justify less serious traffic offences. Consequently, there is a higher risk of Mr Dave committing less serious traffic offences. This is reinforced by Mr Dave’s record of traffic violations, including the offence he committed in 2017 in respect of use of a mobile telephone while driving. The explanations given by Mr Dave and Ms Zafari underscore the point. Whether or not Mr Dave used or handled the mobile telephone while stopped at a red traffic light while driving, his conduct involving the mobile telephone did not comply with the relevant West Australian law.
In all likelihood, the personality traits Dr Watts identified, including Mr Dave’s sense of entitlement and grandiosity, underlie a pattern of dishonesty in which Mr Dave engages in dishonest conduct, whether in the commission of fraudulent acts as occurred in 2011, 2012 and 2013 or in not being fully frank in disclosing information, in order to obtain a benefit of some kind. There is a risk this pattern will be repeated in the future.
On the present evidence it is difficult to make findings about the extent of Mr Dave’s rehabilitation. Mr Dave has not undertaken formal rehabilitation and, on Dr Watts’ evidence, he is not psychologically-minded to do so. Despite Mr Dave’s admission of guilt and his repeated expression of remorse, his inability or unwillingness to disclose why he committed the repeated fraudulent acts against his previous employer suggests a lack of insight at least. Such matters were the subject of comment by Magistrate Benn and Dr Watts. Against this, as Dr Watts observed, Mr Dave’s young age when he committed the offences and the passage of years without further similar offences in his record must be weighed.
By his Visa application, Mr Dave is seeking to travel to Australia to live with his wife and to reside in Australia. Mr Dave and Ms Zafari each gave evidence of their intentions to start a family. Even though Mr Dave has resided in India since 2016, he has stable employment in a business owned by Damien Meenan in the Australian construction industry. Mr Meenan gave evidence of the trust he places in Mr Dave, employing him to manage the financial and information technology systems of the business from India, and Mr Dave’s honesty and reliability dealing with financial transactions involving more than 750 customers and a more than $2 million annual turnover.
Having regard to these matters separately and cumulatively, even though the risk Mr Dave poses to the Australian community is low and his offending conduct is not very serious, I am satisfied the extent to which he breached the privilege of entering Australia under grant of a student visa by committing serious offences and the harm he caused surpass the risk tolerance of the Australian community.
This consideration weighs in favour of refusing Mr Dave’s Visa application.
Ties to Australia
This consideration is explained in s 8.3 of the Direction:
8.3 The strength, nature and duration of ties to Australia
(1) Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4) Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) the length of time the non-citizen has resided in the Australian community, noting that:
i.considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
Mr Dave is married to Ms Zafari who was granted Australian citizenship in 2008. Subsequently, Ms Zafari obtained Overseas Indian citizenship. Ms Zafari’s mother, father and her siblings are members of Mr Dave’s extended family by marriage.
Mr Dave gave evidence as a learner driver he was supervised by a family member, an uncle. He explained the driving offence committed in April 2011 on the basis his uncle was not available to drive him, so he was compelled to drive himself.[60] There is no evidence from Mr Dave’s uncle, and the available evidence is not sufficient to make any informed assessment about the impact of refusing Mr Dave’s Visa application on this person. There is evidence he was accompanied by his mother and a minor cousin in December 2011.[61] There is no other evidence of Mr Dave’s cousin or other members of his biological family residing in Australia.
[60] Exhibit 1, page 74.
[61] Exhibit 2, page 853.
Ms Zafari gave evidence that she experiences mental and emotional stress as a result of being separated from Mr Dave and, as Mr Dave has been refused a visa to travel to Australia, she is forced to travel overseas to visit and be with him. This, she asserts, disrupts her employment and her responsibilities supporting other family members in Australia and it imposes an additional financial burden. By her account, the greatest impact of the refusal decision on her is the denial of opportunity to enjoy married life with her husband, including to create a family and have children with him in Australia. This notwithstanding, Ms Zafari accepts that when she married Mr Dave in December 2015, she knew he had committed serious dishonesty offences while present in Australia on a student visa and that this might affect his ability to obtain a visa according him permanent residence.
Mr Dave and Ms Zafari have ownership interests in properties in Vadodara[62] and in Perth, although the property in Perth is held in Ms Zafari’s name, alone. The genuineness of their spousal relationship is not in question. The strength and continuing nature of their relationship is clearly established by extensive documentary materials before the Tribunal and the oral evidence given by Ms Zafari and Mrs Zafari.
[62] Exhibit 2, Pages 628-629.
Ms Zafari has three siblings, one of whom is a minor (“M”). Her adult siblings (“Z” and “X”) reside with Mrs Zafari. X has a disability and Mrs Zafari is his primary carer. Ms Zafari’s mother and siblings are Australian citizens.
Evidence of Mr Dave’s continuing familial relationships and communication with Ms Zafari’s parents (particularly her mother) and siblings (particularly M) was not controverted and can be accepted. As will appear, Mr Dave has engaged with Ms Zafari’s family members on trips to Iran in 2018 (a pilgrimage with all family members) and to Singapore in 2022 (with Ms Zafari and M). The nature and strength of Mr Dave’s relationship with M, including assisting with M’s science and mathematics studies, is a significant consideration to which I will return below. There is little evidence of Mr Dave’s relationship with Z and with Ms Zafari’s father, who does not reside with Mrs Zafari.
The Minister accepts, correctly, refusal of Mr Dave’s Visa application will directly affect Ms Zafari. Without grant of the Visa, Mr Dave will not be in a position to reside with Ms Zafari in Australia. In such an event, by her own account, Ms Zafari would depart from Australia to join Mr Dave in India where they have an ownership interest in a house which is presently under construction. I accept this will result in consequential difficulties.
Ms Zafari has employment in Perth. She will have to leave this employment to join Mr Dave in India. In India, Ms Zafari would face the prospect of seeking new employment. Ms Zafari does not speak the local language, Gujarati, and she expects any employment she might obtain would be remunerated at a substantially lower rate than she presently enjoys.
Ms Zafari explained she has no friends or family in India, other than Mr Dave, and this would likely have a negative effect on her mental health. There is scant evidence of Mr Dave’s family members. I understand his mother resides in India and his father works in Dar es Salaam, Tanzania, having moved to Kenya in 2006.
Ms Zafari owns several properties under mortgage in the Perth area. The first such property was purchased with Mr Dave even though the property and the mortgage is held in Ms Zafari’s name, alone. She asserts her reduced ability to earn would impact upon her ability to service her mortgage commitments and maintain the properties she owns in Perth.
Ms Zafari’s immediate family resides in one of these properties. I understand Ms Zafari resides with her family for much of the time and she provides support to her mother who is the primary carer for X. X is a participant in the National Disability Insurance Scheme (“NDIS”) and Mrs Zafari is paid Carer Payment. Ms Zafari’s evidence is that her mother speaks basic English, and she relies on Ms Zafari when discussing X’s complex needs and progress with therapists and arranging NDIS appointments. Mrs Zafari explained she relies on her daughter more than her other sons for assistance caring for X. On her evidence, she relies on Ms Zafari even though X’s NDIS package includes provision for support workers, as the support workers are “not as careful as we are” and she does not ask them to come to assist.
Mrs Zafari gave evidence of difficulties she experienced coping during periods when Ms Zafari travelled overseas to spend time with Mr Dave several times each year, although any such difficulties are mitigated by the short duration of Ms Zafari’s absences. I note Ms Zafari has travelled to India, Thailand, Dubai and other destinations to spend time with Mr Dave a number of times each year for period of less than 4 weeks. Some of these journeys have been in the company of other friends, such as travelling to Indonesia and Thailand in November 2022. On other occasions, she travelled to Singapore, Pakistan, Iran and Iraq with family members, including a family pilgrimage to Iran in 2018 and a trip with M to Singapore in March 2022.
In relation to the consideration of the length of time Mr Dave has resided in the Australian community, the period in which Mr Dave resided in Australia, from 2008 to 2016, with 2 subsequent short visits in 2017, is over-shadowed by his offending conduct. Even so in this context, there is evidence Mr Dave made positive contributions to Australia in the time he was here, by undertaking voluntary work and his achievement awards in employment at McDonalds restaurants.
Even though Mr Dave has spent little time in Australia since January 2016 and he commenced offending approximately 2 years after arriving in Australia, I am satisfied the nature, strength and duration of his ties to Australia through his wife and her family and the adverse impact on them should his Visa application not be granted should be given substantial weight.
Other than Mr Dave’s present employment by Mr Meenan (who resides in Ireland) in an Australian business (to which I will return below), there is scant evidence of Mr Dave having other ties to Australia. I understand Mr Meenan intends to continue Mr Dave’s employment whether or not his Visa application is refused.
Overall, Mr Dave’s ties to Australia, and his marriage to Ms Zafari in particular, weigh against refusing his Visa application.
Best interests of minor children
Factors which must be considered in respect of the best interests of minor children are set out in s 8.4 of the Direction, namely:
(4) In considering the best interests of the child, the following factors must be considered where relevant:
a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)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;
d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)whether there are other persons who already fulfil a parental role in relation to the child;
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
It appears Mr Dave was accompanied by his mother and a minor child cousin when he committed the driving offence on 21 March 2012.[63] The child was aged 4 years and 3 months at the time[64] and would now be approximately 16 years old. There is no other evidence of this child or any other minor child in Mr Dave’s biological family, or the extent of the relationship such minor children have with Mr Dave, if any. That being so, the impact of a decision to refuse Mr Dave’s Visa application on such children is not able to be assessed, one way or the other.
[63] Ibid, page 685.
[64] Ibid, page 853.
The only other minor child whose best interests should be considered is M, who is Mr Dave’s minor brother-in-law. M was born in 2008.
M resides with his mother and his adult siblings (including Ms Zafari for much of the time), and his father visits from time to time. In this context, Mr Dave does not have a parental role with M.
Mr Dave first met M in 2015 and he has had limited periods of in-person contact with M thereafter. These periods are confined to visits Mr Dave made to Australia in 2017 and overseas trips taken with Ms Zafari’s family members in 2018 and 2022. Mr Dave has maintained a relationship with M using telephone and electronic media during the period of his absences from Australia since January 2016. The strength and continuing nature of his relationship with M is supported by the evidence of Ms Zafari, Mrs Zafari and Mr Dave. On Ms Zafari’s evidence, M seeks and heeds advice from Mr Dave in preference to other family members. Her evidence is that since 2018, Mr Dave has assisted M with his studies, particularly science and mathematics, and he has engaged with M’s teachers. Accepting this is correct, it is probable Mr Dave would play a positive role in M’s development as a student, at least until he turns 18 in 2026. I note Mr Dave has maintained a positive relationship with M despite being absent from Australia. There is no suggestion this would cease if Mr Dave’s Visa application is refused. Nevertheless, the potential for greater contact and involvement between M and Mr Dave, in person, would be substantially diminished in those circumstances. I accept this would not be in M’s best interests.
M’s views about Mr Dave’s visa status are not in evidence. It is not clear if M has been informed about Mr Dave’s offences. There is no evidence his offending conduct has had any impact on M. Should Mr Dave offend again in the future, it is expected this might have a negative impact on M, although the risk of this occurring is low.
Considering these matters, I am satisfied refusal of Mr Dave’s Visa application is not in M’s best interests. Nevertheless, the weight of this consideration is reduced by the largely remote and non-parental nature of the relationship between M and Mr Dave. The consideration weighs against refusal of Mr Dave’s Visa application, but not heavily.
Expectations of the Australian community
Matters to be considered in respect of the expectations of the Australian community are set out in s 8.5 of the Direction:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
a) acts of family violence; or
b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
f) worker exploitation.
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
As can be seen, the Government’s statement of Australian community expectations in s 8.5 of the Direction is ‘as a norm’ adverse to any visa applicant who has engaged in serious conduct, giving rise to character concerns in breach of those expectations.[65] Nevertheless, the ‘norm’ should not be construed as a binding direction of the decision to be made under s 501(1) in any particular case. The expectations expressed are to be considered on the facts of each case and weighed with other relevant considerations (noting that primary considerations generally are to be given more weight than other considerations) when deciding if it is appropriate in all the circumstances to exercise the discretion to refuse to grant a visa to a person on character grounds. These provisions of the Direction should not be construed in a manner which is inimical to exercise of the discretion conferred by s 501(1).[66]
[65] FYBR v Minister for Home Affairs [2019] FCAFC 185 (‘FBYR’), per Charlesworth J at [75] and Stewart at [89].
[66] Ibid, per Charlesworth J at [73] and Stewart J at [90]-[92].
I am mindful of what Stewart J said in FBYR’s case about the evaluation of appropriateness in the particular circumstances of the visa applicant and the attribution of weight to an adverse character assessment, particularly at [102]:
It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa. In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight. In another case, because of the severity of the character assessment, the weight may be substantial. Thus, the character assessment, even through the prism of community expectations, may not be decisively against the applicant. In many cases it will not be. That is why the decision-maker must assess what is “appropriate” in the particular circumstances. Nevertheless, an adverse character assessment is necessarily against a visa applicant, to some degree or other; no one will be awarded a visa because they are of bad character.
Mr Dave has committed serious dishonesty offences involving stealing and fraud. His serious offences passing off 2 traffic violations may be within the terms of s 8.5(2)(d) of the Direction. He has several traffic offences of a minor nature.
The character concerns arising from this offending conduct hinge on evidence Mr Dave has a sense of entitlement and he has not engaged in rehabilitation in respect of his past offending conduct. This raises concern about the risk of Mr Dave re-offending and causing harm to individuals or the Australian community. It is on this basis the adverse character assessment is justified.
Considering these concerns and the weight to be given to the adverse character assessment in the circumstances of Mr Dave’s case, three important considerations arise.
Firstly, Mr Dave was relatively young when he committed serious dishonesty offences in 2011 and 2012 and he readily admitted to his guilt and expressed remorse when the offending conduct was discovered. The sentencing Magistrate considered it appropriate to impose penalties in the form of fines. This takes account of Mr Dave’s relative youth at the time and his ready admissions of guilt and expressions of remorse.
These considerations in respect of Mr Dave’s relative youth and the length of time since he committed the offences (more than 10 years), and his ready admission of guilt and expression of remorse reduce the weight the adverse character assessment should be given.
Secondly, Mr Dave either lacks insight into his past serious offending conduct or he has not been fully frank in disclosing what occurred and why. Mr Dave’s evidence before the Tribunal is that he disclosed the fraud to his employer in December 2011. This does not align with his admissions at trial:
… Mr Dave explained that when BP initially investigated the transactions in December 2011 and confronted him, he immediately admitted his actions and agreed to pay the amount sought by BP.[67]
[67] Exhibit 2, page 827.
Magistrate Benn proceeded on Mr Dave’s admission:
I appreciate that you admitted immediately to the offending, once you were confronted by it, and that you’ve repaid the money, did that immediately, you’ve pleaded guilty at an early opportunity, and that I have character references that describe this behaviour as being out of character…[68]
[68] Ibid, page 811.
The inconsistency between the admissions in the documents before the Magistrates Court of Western Australia in September 2012 and Mr Dave’s current evidence is reinforced by Mr Dave’s observation recorded in the Mediation Report placed before the Court:
Mr Dave clearly stated that this was “one hundred percent my mistake” however he noted that had the service station manager checked the first transaction he made at the time, he could have fired Mr Dave and the other offences would not have been committed.[69]
[69] Ibid, page 827.
Both accounts cannot be correct. The material before the Court is more contemporaneous and it was accepted as correct at the time. I will proceed on that basis. Mr Dave raised his present account of disclosing his fraudulent activities to his manager following discovery of refunded monies in his bank account in the context of proceedings relating to his Visa application. Doing so smacks of convenience and an attempt to paint himself in a positive light. If this is correct, it aligns with Dr Watts’ observation about the possibility of a “doing things to get out of trouble type pattern”[70] of behaviour which raises concerns about Mr Dave’s credibility. Mr Dave’s past dishonest conduct, committing offences in order to obtain a benefit or to avoid a penalty, is consistent with such a pattern. This reflects the seriousness of the concerns raised by the adverse character assessment and it increases the weight it should be given.
[70] Exhibit 1, page 64.
Thirdly, there is no evidence Mr Dave has subsequently committed any further serious dishonesty offences, or engaged in other serious criminal conduct, in Australia or in any other country. Mr Meenan’s evidence is that Mr Dave is undertaking work involving financial transactions, including invoicing clients and receiving credit payments, while exercising managerial control over accounts turning over more than $2 million annually, with full access to the electronic records and communications (including email) of Mr Meenan’s Australian business. Mr Meenan explained he understands Mr Dave’s past offences and he has found no reason to doubt Mr Dave’s integrity in performing his present role: he is satisfied Mr Dave is presently a reliable and honest employee.
The absence of evidence of Mr Dave committing any further serious dishonesty offences and evidence of his present honesty in a position of trust and responsibility for financial transactions exceeding $2 million per year reduces the concern about the adverse character assessment and it reduces the weight it should be given.
Thus, in sum on this point, serious concern about Mr Dave’s adverse character assessment is raised on a pattern of dishonesty and the risk he would engage in further such conduct should he be allowed to enter Australia. The concern is mitigated to a large degree by the passage of more than more than 10 years without evidence of him engaging in further similar dishonest conduct and the positive assessments of his character by people who have known him, including Ernest Gaspar, a retired Senior Sergeant in the West Australian Police, who stated:
[Mr Dave] is now a person of very high character, despite his previous errors of judgement. My regular observations of [Mr Dave] find him to be a courteous, kind, generous and helpful… He has proven himself to be honest and reliable in all matters…
I am a retired Police Officer with many years of experience in dealing with peoples of various personalities and I categorize [Mr Dave] among those who have successfully matured from youth to adulthood responsibly. Furthermore, I do not undertake to give character references lightly.[71]
[71] Exhibit 2, page 696.
Under cross-examination Mr Gaspar accepted Mr Dave had not fully disclosed the extent and nature of his dishonesty offences and stated:
If he’d given me these details and then [sic] forthright with me, I would have given the same reference. He didn’t reveal this to me, so I would have to certainly rephrase what I’d written, if at all I gave him a reference.[72]
…
I can see that this was not disclosed fully to me. However, his dealings with me were impeccable. So, look, I - as I say I’m torn in respect and yest [sic] to me he’s been flawless with exclusion of this particular aspect.[73]
[72] Exhibit 1, page 102.
[73] Ibid, page 103.
Even though the weight that can be given to Mr Gaspar’s evidence and other positive character references before the Tribunal is reduced by Mr Dave’s failure to fully disclose the extent of his offending conduct, Mr Gaspar’s evidence aligns with Mr Meenan’s evidence in respect of Mr Dave’s present conduct and honesty.
Viewing these considerations through the prism of Australian community expectations as expressed in s 8.5 of the Direction and considering what is appropriate in the circumstances, on balance, I am satisfied the adverse character assessment weighs against granting Mr Dave’s Visa application, although the weight is reduced by the passage of time without evidence of Mr Dave committing further serious offences and the weight which can be given to recent character references, most notably from Mr Meenan and Mr Gaspar.
Impact on victims
There is no evidence or information about the impact of the decision in respect of Mr Dave’s Visa application on victims of his criminal offending in the Australian community.
Impact on Australian business interests
There is scant evidence of the impact of the decision in respect of Mr Dave’s Visa application on Australian business interests.
The only evidence of relevance was given by Mr Meenan. He explained, presently, Mr Dave undertakes his role in Mr Meenan’s Australian business from India and he is not able to meet clients or prospective clients in person. It is Mr Meenan’s evidence he intends to continue Mr Dave’s employment regardless of the decision in respect of his Visa application but his business would benefit from Mr Dave’s presence in Australia, as this would assist his business expansion plans across Australia and it would assist developing and maintaining positive customer relationships.
Conclusion
This case is finely balanced.
Considerations relating to the protection of the Australian community and the expectations of the Australian community weigh in favour of refusing to grant Mr Dave’s Visa application. The weight given to the seriousness of Mr Dave’s previous offending conduct is reduced by the passage of more than more than 10 years without evidence of Mr Dave engaging in further serious conduct or dishonesty offences, other than 2 minor traffic offences. This is reinforced by the low risk of Mr Dave engaging in further serious conduct even though the pattern of his dishonest behaviour, “doing things to get out of trouble” [74], might continue.
[74] Exhibit 1, page 64.
The weight given to the adverse assessment of Mr Dave’s character, including concerns about his rehabilitation, his lack of insight or frank disclosure and possible pattern of past behaviour, in the context of the expectations of the Australian community is reduced by evidence of his present honesty and trustworthiness in employment, as well as positive character references by people outside his immediate family.
Nevertheless, these considerations weigh for refusing his Visa application.
Conversely, considerations relating to the strength and nature of Mr Dave’s ties to Australia weigh against refusing his Visa application. The weight given to these considerations is increased by the adverse impact a decision to refuse his Visa application has upon his wife and other family members who are Australian citizens.
Considerations relating to the best interests of M, a minor child, also weigh against refusing Mr Dave’s Visa application. M’s best interests are not served by refusing to grant Mr Dave’s Visa application.
I also take account of Mr Meenan’s evidence of the impact on his Australian business should Mr Dave’s Visa application be refused, although this other consideration adds little weight.
On balance, taking all relevant considerations into account, I am satisfied the balance tips against refusing Mr Dave’s Visa application on character grounds under s 501(1) of the Act.
Mr Dave’s ties to Australia through his marriage to Ms Zafari, and the adverse impact of a decision to refuse his Visa application on Ms Zafari and on M’s best interests, marginally outweigh the need to protect the Australian community from harm and community expectations in respect of his adverse character assessment, taking into account the low risk Mr Dave would engage in further serious conduct after more than 10 years.
Decision
The decision under review is sat aside and remitted to the Minister with the direction Mr Dave’s Partner visa application is not refused on character grounds.
I certify that the preceding 148 (one hundred and forty-eight) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.
.............................[sgd]...........................................
Associate
Dated: 15 January 2024
Date(s) of hearing:
21 and 22 November 2023
Counsel for Applicant:
Solicitor for Applicant:
Mr Hamish William Glenister
William Gerard Legal
Solicitor for Respondent:
Mr Matthew Hawker, Sparke Helmore
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