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Administrative Appeals Tribunal of Australia |
Last Updated: 3 September 2021
Kwatra and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3147 (2 September 2021)
File Number: 2020/2856
Re: Sanjay Kwatra
APPLICANT
And Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal: Senior Member A.
Nikolic AM CSC
Date: 2 September 2021
Place: Melbourne
The decision under review is affirmed.
..............................[sgd]..........................................
Senior Member A. Nikolic AM CSC
CATCHWORDS
MIGRATION – Mandatory visa cancellation
– citizen of India – Class BB Subclass 155 Five Year Resident Return
visa –
persistent offending 1998 to 2019 – substantial criminal
record – failure to pass good character test –whether
another reason
why the mandatory visa cancellation should be revoked – extent of
impediments if removed – COVID-19 pandemic-Ministerial
Direction No. 90
applied – decision affirmed
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132; (2019) 271 FCR 595
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408
DOB18 v Minister for Home Affairs [2018] FCA 1523
Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78
FYBR v Minister for Home Affairs [2020] HCA 056
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338
Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48; (2016) 241 FCR 461
Kwatra and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 2633
Kwatra v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 58
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567; 191 CLR 559
Minister for Immigration and Citizenship v Obele [2010] FCA 1445; (2010) 119 ALD 358
Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180
Murphy v Minister for Home Affairs [2018] FCA 1924
Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219
Say v Administrative Appeals Tribunal [2020] FCA 1489
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; (2018) 74 AAR 545
Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 263 FCR 531
Vu v Minister for Immigration, Citizenship, Migrant Services and
Multicultural Affairs [2020] FCAFC 90; (2020) 276 FCR 516
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Department of Foreign Affairs and Trade, DFAT Country Information Report India, Report (10 December 2020)
Australian Government, Guides to Social Policy Law-Social Security Guide (Version 1.283 - Released 1 July 2021) World Health Organization, Emergency Dashboard – India <https://covid19.who.int/region/searo/country/in>
World Health Organisation, Novel Coronavirus Disease Situation update Report 79 <https://cdn.who.int/media/docs/default-source/wrindia/situation-report/india-situation-report-73.pdf?sfvrsn=a39189a8_4>
REASONS FOR DECISION
Senior Member A. Nikolic AM
CSC
2 September 2021
1. The Applicant has asked the Tribunal to review the decision by a delegate of the Minister not to revoke the mandatory cancellation of his Class BB Subclass 155 Five Year Resident Return Visa (the visa) under s 501CA(4) of the Migration Act 1958 (Cth) (the Act).
2. The hearing was held on 21 July 2021. Mr Kwatra was previously represented by counsel during a successful appeal to the Federal Court of Australia following the first Tribunal hearing in July 2020. Counsel subsequently ceased to act on 24 May 2021, following which Mr Kwatra was self-represented. The Minister was represented by Mr Rogers from the Australian Government Solicitor.
3. For the following reasons the Tribunal affirms the decision under review.
BACKGROUND
4. The Applicant is a 57-year old citizen of India. He was raised and educated there to undergraduate level.[1] He married in 1987[2] and worked in India for a decade.[3]
5. The Applicant, his now ex-wife, and then eight-year old
daughter[4] migrated to Australia on
19 December 1996 when the Applicant was 32 years of
age.[5] He and his ex-wife had their
second child in Australia in 1998.[6]
Their marriage ended in approximately
2001[7] and he has had no contact with
his ex-wife or children since.[8]
Apart from two absences from Australia totalling approximately six
months,[9] the Applicant has lived in
Australia for the last 25 years.
6. The Applicant has a significant history of offending since 1998, including offences involving violence, breaches of conditional liberty, dishonesty, property damage, drunk-driving, and public nuisance.[10] In 2004 his offending became even more serious, encompassing convictions for two counts of Arson, Reckless conduct endangering serious injury, and Threat to destroy /damage property, for which he received a total effective sentence of two years and six months imprisonment.[11] The Applicant was subsequently advised by immigration authorities that his visa may be liable for cancellation on character grounds. After considering his representations, a delegated officer decided not to do so (non-cancellation decision).[12] A warning was instead issued in the following terms:
Mr Kwatra's fate is in his own hands. He must address his abuse of alcohol as this appears to be the source of his antisocial behaviour. He has demonstrated he can find and keep employment. It would be disappointing if he offends again due to alcohol abuse and if he does he should not expect sympathy.
Please note that visa refusal or cancellation may be reconsidered if fresh information comes to the notice of the Department or if you incur a liability on new grounds.
Disregard of this warning will weigh heavily against you if your case is reconsidered.
(Emphasis in original)
7. The Applicant acknowledged receipt of the non-cancellation decision on 8 December 2004.[13]
8. Between 2005 and 2019 the Applicant committed multiple further offences. A recurring theme of his offending during the last decade is the making of false or vexatious calls to emergency services, bomb hoaxes, or use of a carriage service to menace or harass. These have variously resulted in fines, Community Corrections Orders (CCO), and several sentences of imprisonment.
9. The Applicant was most recently convicted in the Dandenong
Magistrates’ Court on
28 March 2019 for making false and vexatious
calls to emergency services, failing to comply with a previous sentence order,
and breaches
relating to earlier convictions. The Applicant was sentenced to an
aggregate of 18 months imprisonment for the false and vexatious
calls, and an
aggregate of eight months imprisonment for breaching earlier
orders.[14]
10. On 6 June 2019, the Respondent advised the Applicant that his visa was mandatorily cancelled (cancellation decision), because he had a ‘substantial criminal record’ within the meaning of s 501(6)(a) of the Act.[15] The Applicant was then serving a fulltime sentence of imprisonment. He acknowledged receipt of the cancellation decision and requested revocation.[16]
11. On 7 December 2019 the Applicant was paroled after serving nine months of his prison sentence and immediately taken into immigration detention where he has since remained.[17]
12. On 11 May 2020, a delegate of the Minister advised the Applicant of the decision not to revoke the cancellation decision (non-revocation decision),[18] which the Applicant acknowledged.[19]
13. On 13 May 2020, the Applicant asked the Tribunal to review the non-revocation decision.[20] On 26 August 2020 the Tribunal, differently constituted, affirmed the non-revocation decision (first Tribunal hearing).[21]
14. The Applicant sought judicial review in the Federal Court of Australia. On 4 February 2021, Burnley J upheld one of two grounds of appeal, quashing the first Tribunal decision, and giving rise to this proceeding.[22]
LEGISLATIVE FRAMEWORK
15. Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction to review decisions under s 501CA of the Act.
16. Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if satisfied that the person does not pass the character test and is serving a full-time sentence of imprisonment.
17. The ‘character test’ is defined in s 501(6) of the Act:
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or ...
18. Section 501(7) of the Act sets out six circumstances in which a person is taken to have a substantial criminal record, including if the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).
19. Under s 501CA(3) of the Act, the Minister is obliged, as soon as practicable after deciding to cancel a visa, to give notice of the decision to the person and invite them to make representations about revoking the original cancellation decision. Provisions relating to the form and process of those representations are found in reg. 2.52 of the Migration Regulations 1994 (Cth).
20. Section 501CA(4) of the Act provides a discretion that the Minister may revoke the original decision, if the person whose visa has been cancelled makes representations in accordance with the invitation, and the Minister is satisfied that the person passes the character test, or there is another reason why the original decision should be revoked.
21. The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. Except for the Minister acting personally, the Direction must be applied by decision makers under the Act.[23] On 8 March 2021, the Minister signed Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction). The Direction commenced on 15 April 2021 and revoked the previous Direction 79 on the same date.[24] The Tribunal finds it is bound to apply the Direction in these reasons, based on the material currently before it.[25]
22. The following principles at cl 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(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 measurable 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 noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5) 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 8.4(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.
23. Clause 6 of the Direction provides that, informed by the principles in cl 5.2, a decision-maker must take into account the considerations identified in clauses 8 and 9, where relevant to the decision.
24. Clause 8 of the Direction identifies the following as primary considerations:
(a) Protection of the Australian community from criminal or other serious conduct;
(b) Whether the conduct engaged in constituted family violence;
(c) The best interests of minor children in Australia;
(d) Expectations of the Australian community.
25. Clause 9 of the Direction identifies a non-exhaustive list of other considerations:
(a) International non-refoulement obligations;
(b) Extent of impediments if removed;
(c) Impact on victims;
(d) Links to the Australian community, including:
(i) Strength, nature and duration of ties to Australia;
(ii) Impact on Australian business interests.
26. Clause 7(1) provides that, when taking the relevant considerations into account, ‘Information and evidence from independent and authoritative sources should be given appropriate weight.’
27. Clause 7(2) states that ‘Primary considerations should generally be given greater weight than the other considerations.’ That does not preclude the Tribunal, however, based on the specific circumstances of each case, to give an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[26]
28. Clause 7(3) states that ‘One or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop[27] at [57]:
...the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501...
DOES THE APPLICANT PASS THE CHARACTER TEST?
29. The issues to be determined are whether the Applicant passes the character test and, if not, whether there is ‘another reason’ to revoke the cancellation decision. The Applicant accepts he does not pass the character test. Because of his March 2019 convictions and imposition of a sentence exceeding the threshold statutory period of 12 months, the Tribunal is satisfied he has a substantial criminal record and does not pass the character test. Accordingly, s 501CA(4)(b)(i) of the Act does not provide a basis for revocation.
ISSUE TO BE RESOLVED
30. It remains to be determined under s 501CA(4)(b)(ii) of the Act if there is ‘another reason’ why the cancellation decision should be revoked. The task of identifying ‘another reason’ was elaborated upon by the Full Court of the Australian Federal Court (FCAFC) in Viane v Minister for Immigration and Border Protection:[28]
There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.
EVIDENCE
Documentary evidence and witnesses
31. Documents tendered into evidence were:
(a) G-documents collectively numbering 527 pages;[29]
(b) Social Security Report – India, from Australian Government Social Security Guide;[30]
(c) Email from the Respondent dated 20 July 2021, replying to the Tribunal’s request for further information about COVID-19 arrangements in immigration detention;[31]
(d) Three-page statement of the Applicant dated 14 July 2021, two-page
statement of the Applicant dated 13 July 2021 with three attached
certificates
of attendance and participation in various programs, seven-page statement of the
Applicant dated
15 June 2021, and five-page statement of the Applicant dated
22 June 2020, which collectively comprise his statement in this
proceeding;[32]
(e) Letter dated 11 June 2021 from Mr Mark Mahon, Senior Counsellor of Holyoake; [33]
(f) Letter dated 10 June 2021 from Mr Peter Meyer, Social Worker at SECADA Drug and Alcohol Recovery Support; [34]
(g) Country Report for India dated 10 December 2020 from Australia’s Department of Foreign Affairs, Defence and Trade (DFAT Country Report); [35]
(h) Media articles and a list of hyperlinks dated between 24 April 2021 and
15 June 2021 regarding the COVID-19 situation in India;
[36]
(i) Four-page record from the International Health and Medical Services (IHMS) detailing the Applicant’s current and prior prescription medications; [37]
(j) Two-page record from Teeth on Wheels relating to a dental check of the Applicant conducted on 16 January 2020;[38] and
(k) An ultrasound report dated 21 April 2021.[39]
National Criminal History and sentencing remarks
32. The Applicant does not dispute the accuracy of his criminal history, the transcript of proceedings from the Magistrates’ Court of Victoria at Dandenong dated 28 March 2019, or the sentencing remarks of the County Court of Victoria at Melbourne dated 10 March 2004.[40]
Applicant’s evidence
33. The Applicant is fluent in English and Hindi and was the only witness at the hearing. He adopted Exhibit A1 as true and correct and made comprehensive submissions, which were substantially focussed on impediments confronting him if returned to India.
Impediments to removal
34. The Applicant said he previously returned to India in 1998 and 2002, during which he stayed with his sister. She subsequently died in 2009.[41] His concerns about repatriation to India centred on:
(a) Deterioration of his mental and physical health, with a particular focus on the risk of contracting COVID-19 or an attendant infection known as ‘black fungus’,[42] for which he could not get treatment from an over-stretched Indian health system;
(b) Absence of family or social support;
(c) Inability to find work due to his age and comorbidities;
(d) Separation from close friends and support in Australia; and
(e) Lost opportunity to rebuild relationships with his family in Australia.
35. The Applicant referred to several chronic health issues affecting his daily life. These include Type II diabetes, which he controls with a daily tablet. He also raised back issues, high cholesterol, angina, macular degeneration, dental health problems, a peptic ulcer, general pain, ‘side effects from taking so many tablets’, depression, and PTSD. He undertakes three-monthly testing to confirm the appropriate medication dosage for his diabetes. When asked if this testing and medication was available in India, the Applicant responded: ‘I’m not sure but even if it’s available it will cost a fortune’. He explained: ‘There’s no system – I’ve lived there for 32 years – I know the system very well in India’.
36. The Applicant was challenged about his macular degeneration claim, given an ophthalmologist’s letter stated: ‘no treatment is required’.[43] He confirmed a subsequent consultation with an ophthalmologist had also not recommended any treatment. When asked what expert evidence he relied upon that specifically diagnosed macular degeneration, the Applicant agreed there was none. In relation to his dental problems, the Applicant was asked about the reference in evidence to him declining dental treatment.[44] He explained it because of uncertainty about who would provide him with dentures if the recommended treatment was carried out.
37. When asked what specific mental health conditions he was diagnosed with, the Applicant responded: ‘Generalised anxiety, depression and PTSD’. He takes a daily tablet for depression but does not receive any treatment for generalised anxiety or PTSD.
38. The Applicant stated he is ‘not in a medical or mental health state of mind’ to ‘survive in India’, where he would be more susceptible to illness. He is particularly concerned about the lack of comparable medical support and absence of family support. When asked if he has any cousins in India, the Applicant responded: ‘No’. When referred to his previous evidence that he does have cousins in India,[45] the Applicant responded: ‘I might have cousins but I’m not in contact with them’.
39. The Applicant submitted that India’s health system was ‘totally shattered’ by COVID-19, referring to media articles in support of this claim.[46] He said that because of the higher population density in India compared to Australia, he feared not being able to socially distance, which would increase his susceptibility. He explained that the health system in India was dominated by a private health system he could not afford and lacked a ‘safety net’, whereas in Australia support was readily available through Medicare, disability payments, and other sources.
40. The Applicant said he could not find work in India if returned and would become homeless. This resulted from being unable to travel to seek employment because of his increased COVID-19 risk. He said only those who worked qualified for a state insurance scheme providing income support. The Applicant disagreed his qualifications and past work history in India would assist him, claiming his experience was in a ‘clean environment in Australia’, whereas it was a ‘crowded’ office environment in India.
41. The Applicant said if allowed to remain in Australia he was confident of eventually finding part-time or voluntary work and, in the interim, could rely on income and health support. He accepted there was a large break in his work history but referred to previous employment with several large telecommunications companies in Australia as underlying his confidence about finding work, including in a call-centre setting. He said this included ‘trouble-shooting’ telecommunications problems for clients. He had recently undertaken further training in information technology.
Elevated risk of contracting COVID-19 in immigration detention
42. The Applicant submitted he was at elevated risk of contracting COVID-19 in immigration detention in Australia ‘because it’s crowded’ and may result in him suffering from ‘prolonged faitigueness’. When asked about the Respondent’s reply to the Tribunal’s questions about COVID-19 precautions in immigration detention,[47] the Applicant claimed these were inadequate. A summary of his responses on this issue follows:
(a) When asked about the Respondent’s claim about ‘no confirmed cases of COVID-19 in the immigration detention network’, the Applicant responded: ‘They don’t check temperatures...some might have COVID, who knows?’;
(b) When asked about the Respondent’s claim that IHMS had identified the Applicant as someone who was vulnerable and at increased risk of contracting COVID-19, with steps taken to guard against this risk, the Applicant disagreed: ‘What steps – there’s no social distancing...they don’t do the test here they just take their temperature’. Later in his evidence the Applicant stated he had previously been ‘tested once last year’ when he was not feeling well and was put into isolation pending results. The Applicant was also asked about IHMS records referring to him routinely being screened for COVID-19,[48] responding: ‘They only did temperatures’;
(c) The Applicant did not accept IHMS had completed a report detailing his vulnerability to COVID-19 because they did not provide him a copy;
(d) The Applicant disagreed that IHMS provided health education material regarding COVID-19 to detainees in multiple languages;
(e) The Applicant disagreed that IHMS emphasised the importance of personal hygiene, particularly regular hand washing with soap and water, claiming: ‘No – they don’t promote it’;
(f) The Applicant disagreed that screening was implemented for all individuals entering the Medical Clinic for symptoms suggestive of COVID, stating: ‘No I disagree. They only take temperature. I don’t know what other symptoms they may have’;
(g) The Applicant disagreed that IHMS encourages detainees to seek medical attention if they develop symptoms suggestive of COVID-19; and
(h) The Applicant said he was unaware if detention centre operators had introduced symptom screening of all staff entering and exiting the facility, or if they were working with stakeholders regarding the restriction of visitors to the site.
Family interests
43. The Applicant said he has two children in Australia who are now adults and a grandchild, who he has a ‘strong desire and intention to see’ but had not previously met. The Applicant claimed his children would be ‘very disappointed’ and his grandchild’s mental health ‘deeply affected’ if he was repatriated. He explained this was because ‘in Indian culture it’s a united family thing’. The Applicant agreed, however, that he has not had any contact with his ex-wife or children since the breakdown of his marriage in 2001 and only learned details about his eldest child, a daughter, from her social media profile some years ago. He has not made any attempt to contact her or other family members and was unaware if they had tried to contact him. When asked how old his grandchild is, the Applicant responded: ‘Must be around four.’ When asked what made him think there was a prospect of reunion with his family, the Applicant responded: ‘Once I get out I will be able to somehow find them’.
Offending, remorse, rehabilitation, and recidivism risk
44. The Applicant agreed his offending was serious, for which he apologised. He accepted much of this occurred after a formal warning from immigration authorities in 2004,[49] which advised him his visa was liable for cancellation if he engaged in further offending.[50] The Applicant also recognised his previous engagement with rehabilitation was ‘inconsistent’, despite considerable supports. He referred to previous successful completion of a nine-month drug and alcohol treatment order in 2015. He also referred to accessing a psychiatrist and mental health support worker, which he thought was effective. The Applicant acknowledged some ‘relapses’, claiming the ‘one thing missing’ from his rehabilitation in 2015 was SECADA support.[51] The Applicant agreed, however, that he had engaged with SECADA since 2017 but had still reoffended.
45. When asked why he continued drinking and reoffending despite extensive past supports, the Applicant claimed his drinking was ‘controlled’ from 2017 and he had dropped from ‘high risk to low risk’. He said he was not intoxicated during his most recent offending, having only consumed ‘two to three drinks.’ He claimed to have legitimately called emergency services but was nevertheless arrested because of his past false and vexatious calls. The Applicant agreed, however, that he pleaded guilty, which resulted in his 2019 convictions.
46. The Applicant submitted he is now more ‘committed and confident’ of engaging meaningfully with the support available to him. During cross-examination, the Applicant was taken through his offending by Mr Rogers. He accepted the criminal history and sentencing remarks were accurate, but frequently claimed not to be able to recall individual offences. He agreed that he committed family violence offences in 2000 and 2006, including assaults and breaches of intervention orders. He initially claimed not to be able to recall if this related to his ex-wife but agreed no one else had taken intervention orders out against him. He subsequently accepted the family violence offending could only have related to his ex-wife and explained: ‘I wanted to get my family back’. The Applicant accepted that family violence is serious and his ex-wife was a vulnerable person who sought the court’s protection because of his conduct. When asked about his claim that he would not commit family violence if released, the Applicant explained: ‘I don’t think it will happen again [because] I don’t think I’ll have a partner again.’
47. A summary of the Applicant’s evidence relating to other offending follows:
(a) He could not recall what drug was found in his possession when convicted of Possess prohibited drug in 2000;
(b) He accepted that he was convicted of Drive with high range PCA in 2000 but claimed he did not have an alcohol abuse problem at that time, and that problem drinking did not contribute to the breakdown of his marriage;
(c) When asked if he had a drinking problem by 2002 when convicted of Drunk in a public place, the Applicant responded: ‘Yes – slowly and slowly I was getting there’;
(d) The Applicant agreed his first period of imprisonment was in 2004 following conviction for two counts of arson and other offences, for which he received 15 months;
(e) The Applicant thought his conviction on six charges of Obtain financial advantage by deception in 2006 was because he had taken ‘someone’s money or card’;
(f) The Applicant was taken through approximately a decade of offending since 2011, during which he repeatedly made bomb hoaxes, false calls to emergency services, or like offending. He agreed much of this occurred while he was under conditional liberty provisions requiring good behaviour. The Applicant also agreed imprisonment had not stopped him from committing similar offences.
48. The Applicant acknowledged ‘many relapses’ in the past, having being ‘charged with something almost every year’ since 2011’, and that he had previously ‘pushed back’ and ‘not engaged’ as well as he should have with rehabilitation.[52] He also agreed that bail, past drug treatment orders, community corrections orders, and terms of imprisonment had not resulted in enduring changes to his behaviour.[53] The Applicant claimed a ‘vicious cycle’ during the last decade had rendered him unable to complete or apply the benefits of rehabilitation. The Applicant was asked why his situation after another period of imprisonment since March 2019 would be any different. He claimed that sobriety had afforded him greater clarity and he is a now a ‘different person’ whose ‘perception and thinking has changed’. When asked how, he said this latest period in custody had: ‘refreshed [his] mind and been very helpful in understanding [his] drug and alcohol addiction.’ He referred to counselling from Holyoake,[54] which he had found a ‘great moral support.’ When challenged that his previous claims of abstinence from alcohol during a 15-month sentence in 2004 were followed by serious offending after release, the Applicant said he ‘did not have that much support’ in 2004 but was now ‘emotionally stable’.
Protective factors and future aspirations
49. The Applicant said if allowed to remain in Australia he intended to return to work and ‘strive for a better and prosperous future’. He had contacted SECADA,[55] a voluntary organisation, that he planned to undertake ‘ongoing counselling’ with. He said there were a few friends whose support he could count on, as well as assistance from a general practitioner, psychiatrist, and mental health counsellor he had been seeing for several years.
PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
50. Clause 8.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. 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.
(2) Decision-makers should also give consideration to:
Tribunal consideration: The nature and seriousness of the conduct
51. Clause 8.1.1 of the Direction sets out factors to be considered in determining the nature and seriousness of a 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) 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 197 A 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 reoffended 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).
52. The Applicant accepts he has engaged in serious conduct and has an extensive criminal history. The sentencing remarks convey the seriousness of his conduct, particularly from the time his visa was first considered for cancellation in 2004:
(a) On 10 March 2004, the County Court of Victoria sentenced the Applicant after he pleaded guilty to two counts of arson, one count of reckless conduct endangering a person, and one count of making a threat to destroy or damage property.[56] The Applicant was on bail when these crimes were committed and heavily intoxicated.[57] The Court noted the Applicant’s problems with alcohol commenced soon after his arrival in Australia, and by early 2001 his marriage had deteriorated due to alcohol addiction and episodes of binge drinking.[58] He was imprisoned since being arrested for a second arson offence in June 2003 and the Court noted his wife and children had not visited him and refused to disclose their address.[59] The Court was concerned the Applicant’s alcohol abuse was linked to violence and considered if he relapsed he would ‘almost certainly reoffend’;[60] and
(b) In sentencing remarks on 28 March 2019, the Court referred to the Applicant’s multiple breaches of a July 2018 CCO and his ‘very significant prior criminal history.’[61] The Court traversed previous sanctions for his offending, referring to the Applicant as a ‘very difficult person to manage.’[62] His offending was considered ‘very dangerous,’ including by unnecessarily diverting emergency services and placing others at ‘risk of harm’.[63] The Applicant was sentenced to one year and six months imprisonment for the new offending and eight months imprisonment for contravening an earlier CCO.[64]
53. In contending this primary consideration weighed strongly against the
Applicant,
Mr Rogers submitted the Applicant ‘has a long history of
committing dangerous and potentially dangerous crimes,’ involving
arson, breaches of intervention orders involving his ex-wife, bomb hoaxes, and
vexatious and false calls to emergency
services.[65] He said the totality
of the Applicant’s conduct reflected a disregard for the law and criminal
justice system. He said the
Applicant had ignored a formal warning from
immigration authorities ‘in full knowledge of the
consequences’.
Tribunal findings: The nature and seriousness of the conduct
54. Clause 8.1.1(1) of the Direction enables decision-makers to have regard both for criminal offending and ‘other conduct to date.’[66] The Applicant has a significant history of criminal offending in Australia. His most persistent category of offending relates to false or vexatious calls to emergency services, bomb hoaxes, or use of a carriage service to menace or harass. He was convicted of these types of offences in 2011, 2015, 2017, 2018, and 2019, resulting in fines, CCOs, and several sentences of imprisonment. The Applicant’s criminal history also discloses other categories of offending as follows:
(a) Offences involving violence or with a violent aspect: Common assault (2000); Contravene apprehended domestic violence order (2000); Unlawful assault (2005); and Breach intervention order (2005; 2006);
(b) Arson: Criminal damage by fire (Arson) (two counts in 2004);
(c) Conditional liberty offences: Contravene apprehended domestic violence order (2000); Breach intervention order (two counts 2005; 2006); Contravene Community Based / Corrections Order (2012; 2019); Failure to comply with CBO (2006; 2011); Contravene a conduct condition of bail (three charges in 2017; three charges in 2018; 2019); Fail to comply with sentence order made (2019);
(d) Drug and alcohol offences: Possess prohibited drug (2000); Drive with high range PCA (2000); Drunk in public place (2002; 2003; eight charges 2016; 2018);
(e) Dishonesty, property damage, public nuisance, vehicle/driving offences: Negligent driving (not occasioning death / gbh (2000); Intentionally damage property (2003); Threaten to destroy / damage property (2004); Obtain property by deception (2006) Obtain financial advantage by deception (six charges 2006); Attempt to obtain financial advantage by deception (two charges 2006); Theft ( two charges 2006); Smoke in a train (2016); Drink liquor on rail premises (2016); Possess open liquor container on rail premises (2016); Fail to produce valid ticket in designated area (2016).
55. The following aspects of cl 8.1.1(1) of the Direction are relevant to the specific circumstances of the Applicant’s case:
(a) 8.1.1(1)(a):
(i) The Applicant committed family violence against his ex-wife, comprising common assault, unlawful assault, and breaching intervention orders.[67] Such conduct is viewed very seriously;
(ii) The Applicant’s convictions for Arson are particularly serious given the risk to human life and property. This offending is aggravated by the fact that the second arson offence occurred less than a fortnight after the Applicant was granted bail for an initial arson offence.[68]
(iii) The Applicant’s repeated breaches of judicial orders between 2000 and 2019, and multiple convictions for making false or vexatious calls to emergency services, bomb hoaxes, or use of a carriage service to menace or harass, constitute serious conduct;
(b) 8.1.1(1)(d): The courts have resorted to escalating sentences since 1998 to address the Applicant’s crimes. Convictions have been recorded against him in almost every year since 1998 except for a noteworthy period between 2006 and early 2011, following which he reoffended. The courts have imposed sentences ranging from fines and own recognisance undertakings, findings of guilt without conviction, program and supervision orders, compensation, and sentences of imprisonment. His continued offending reflects the objective seriousness of his conduct and a persistent disregard for judicial orders and Australia’s law enforcement framework;
(c) 8.1.1(1)(e): The compounding effect of the Applicant’s persistent offending over the last twenty years has imposed significant costs and consequences on his victims and the broader community. This includes the unnecessary diversion of emergency services when responding to false and vexatious calls, and the costs arising from the Applicant’s frequent court appearances and sentences;
(d) 8.1.1(1)(g): The Applicant reoffended frequently after being formally warned by immigration authorities in 2004.
56. For the reasons outlined above the Applicant’s offending is very serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
57. Clause 8.1.2(1) of the Direction states:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard 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. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
58. Clause 8.1.2(2) of the Direction relevantly provides that in assessing the risk posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(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 noncitizen 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).
...
59. This aspect of the Direction requires the Tribunal to assess the risk the Applicant poses to the Australian community in the event he reoffends, taking into consideration both the nature of any harm and its probability. In Minister for Immigration and Citizenship v Obele [2010] FCA 1445; (2010) 119 ALD 358, Katzmann J reasoned at [59] that the ‘risk of harm posed by the conduct in which the person has engaged in is obviously relevant to the risk...he might in the future engage in.’ In Murphy v Minister for Home Affairs [2018] FCA 1924 at [37], Mortimer J explained:
That is, part of the Tribunal’s task was to decide not only whether the applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community... of how serious the risk was, or whether the risk should be “tolerated.”
60. In Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132; (2019) 271 FCR 595, Mortimer J reasoned at [78] that:
...[t]he nature and circumstances of past offending are integral to any assessment of the risk, or likelihood, of future offending. Also of relevance are a range of other factors about the present circumstances of an individual which may bear on a risk of whether past offending conduct might or might not be repeated. It is these matters, and not the mere specification of a criminal record, which provide the probative basis for an assessment about the nature and extent of any risk of further offending.
61. The High Court of Australia (the High Court) held in Guo that past actions can be legitimate predictors of future behaviour.[69] The majority observed, however, that past events ‘are not a certain guide’ and, depending on circumstances, the probability of an event occurring could be so low as to be ‘safely disregarded,’ or at the other extreme ‘may border on certainty.’ The majority also observed there are a number of factors arising in making such evaluations, and that it is ‘ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.’[70]
62. More recently in Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338, Nettle J observed that evidence of a past offence ‘is not, of itself, significantly probative’ of the committing of another offence:
Without more, it establishes only that the accused is the kind of person who has committed an offence. To make evidence of previous offending or misconduct significantly probative of a subsequent offence there needs to be something more about the nature of the offences or the circumstances of the offending in each case...[71]
63. During sentencing in 2004, the Court held that if the Applicant continued to abuse alcohol, he would ‘almost certainly reoffend.’[72] His Honour also linked the Applicant’s rehabilitation prospects to the attitude he took to alcohol upon release.[73] The evidence discloses the Applicant was unable to cease abusing alcohol or remain law-abiding.
64. During sentencing in 2019, the presiding Magistrate stated the Applicant:
(a) Had ‘pushed back and not engaged, as well as [he] should have in terms of the treatment and rehabilitation programs that have been offered to [him],’ and appeared to consider himself better than those facilitating the program;[74]
(b) Was ‘less likely to commit an offence’ when free of alcohol;[75]
(c) Had committed ‘very dangerous’ offending, creating a ‘ripple effect’ from his behaviour on the community;[76]
Applicant’s submissions
65. The Applicant contextualised his offending as linked to traumatic periods in his life, including the death of his parents and breakdown of his marriage in 2001. He said the latter caused him to experience ‘severe depression’ and become ‘mentally traumatised’ because of not being able to see his children:[77]
I was born and raised in India, in a stable home environment, with close family relationships and secure attachments to both parents. Both my parents passed away in the same year which was a significant stressor for me at the time and I had difficulty coping with their loss and the loss of their support in navigating my way through life. At this point I feel I may have developed anxiety (and possibly depression) which was further exacerbated by the loss of my marriage and separation from my children after moving to Australia. During this period, I had difficulties with coping and turned to alcohol to help me manage the stress of this event. From this point I used alcohol to navigate any stressful emotions which ultimately led to my cycle of consuming alcohol and offending.[78]
Contributory factors
66. The Applicant agreed there is a persistent nexus between his alcohol abuse and offending.[79] There is some inconsistency in his evidence about the origins of his alcoholism, referring variously to a pre-existing drinking problem as causing the end of his marriage, and in other evidence to the end of his marriage causing his heavy drinking.[80] In any event, not much turns on that, beyond noting the Applicant has abused alcohol for over 20 years.
Remorse, rehabilitation, and risk
67. The Applicant accepts he has ‘gone through many counselling sessions’[81] mandated by authorities, including intensive counselling and treatment during 2002-2003.[82] He claimed to have noticed a ‘tremendous change’ in himself after being released from prison in 2004 for arson and other offences, stating:
My approach to the life had changed. I was seeing the world differently. I was enthusiastic, confident, well focused and optimistic. I was managing my depression and alcohol use. I was reformed and rehabilitated. I was young at that time 39 years old thinking about my future. I started applying for the job attended interviews. Soon I got a job in call centre and customer service. I did temporary jobs run by different recruitment agencies. I built up good employment references. I worked in...pay TV and in telecommunication industry...that involved a good customer service and technical trouble shooting.
In 2008 I worked in Telstra...I could not keep the job because of my medical health and ongoing depression. At that time I did not have a comprehensive support network. My life had become very slow I could not cope up with the pace of daily life. But my friends helped me.
...
His Honour mentioned since 2011 I had been charged with making vexatious calls to emergency services and my offences had been very repetitive and had multiple community correction orders and involved in the alcohol diversion program. In 2015 I was placed on Drug Treatment Order which I successfully completed without any breach.
Since 2011 had a few relapses of drinking alcohol, depression and medical episodes subsequent breaches of correction orders.
...
(Errors in original.)
68. The Applicant committed numerous offences after the counselling and treatment he undertook 16 years ago. He concedes his past engagement with rehabilitation opportunities was ‘inconsistent,’ but he is now ‘firmly committed and determined’ to follow through with continuing rehabilitation:[83]
Now that I have had time to reflect upon that period of my life and am free of the effects of alcohol I understand my offending impacted significantly on emergency services and the community and also impacted on my physical and mental health and the wellbeing of my family. I am now able to seek out help if experiencing stress in a helpful way (through accessing services) and am engaged with the medical services at my current location.[84]
69. The Applicant stated he is a different person since his most recent imprisonment, referring to ‘a big change in [his] life’ after being ‘alcohol-free and sober since March 2019’.[85] He submitted that ‘peaceful meditation’ had enabled a ’tremendous change in [his] thinking pattern and mental health,’[86] causing him to become ‘rejuvenated and rehabilitated’ in a healthy lifestyle, with stable mental health and no ‘urge or craving for alcohol.’[87] In a document titled Applicant’s Reply dated 14 July 2021, the Applicant stated his engagement with counselling and support in detention, the enquiries he has made about drug and alcohol programs if released, and renewed ability to engage with supports, had diminished his recidivism risk:[88]
This demonstrates my commitment to ensuring that I receive the support I need to continue to address my mental health issues and be a productive member of the community, should I be permitted to remain in Australia.
In my submission, my ability and willingness to engage with services supports the contention that there is a low risk that I will re-offend and less weight should be given to that consideration.
70. The Applicant highlighted several factors supporting his contention about risk:[89]
(a) Remorse and developed insight into past conduct;
(b) Understanding that alcohol was the root cause of his problems, resulting in improved health, calmness, and engagement with ‘ongoing counselling;’[90]
(c) Undertaking self-development and vocational courses in custody, including an IT course, which he feels will assist his future search for employment;
(d) Enrolment in an ‘alcohol related program in the prison’ and seeing a prison psychiatrist.[91] The Applicant referred to plans to continue this rehabilitation if released,[92] by consulting with his general practitioner and building on the ‘few sessions’ he had undertaken with psychiatrist Dr Bharat Saluja. He also referred to a seven-year association with mental health social worker, Mr Johny Mattom, for ‘Psycho-education and counselling,’ and with SECADA for relapse prevention and psycho-education; and
(e) Continuing support from a small number of close friends who will assist him with accommodation, finding work, and in remaining abstinent from alcohol.
71. The Tribunal has considered letters and certificates in evidence attesting to the Applicant’s participation in the following courses and programs:
(a) Certificate of completion dated 18 October 2019 for Know the Score AOD Program;[93]
(b) Letter dated 7 August 2019 from mental health social worker Mr Johny Mattom.[94] Mr Mattom states the Applicant cooperated with treatment and ‘has good insight and very much aware of his situation if he is not drunk.’[95] Mr Mattom stated the Applicant has no house, belongings, friends or family back in India and would ‘not be safe under his current mental health conditions;’
(c) Letter from SECADA Drug & Alcohol Recovery Support dated 22 July 2019 stating the Applicant attended three one-on-one counselling sessions on 22 January 2019, 13 February 2019, and 7 March 2019, before ceasing these as a result of imprisonment;[96]
(d) Certificate of Participation in Weekly Life Skills Drug & Alcohol Education conducted in June and July 2021;[97]
(e) Certificate of Participation in Men’s Group relating to ‘Sleep Hygiene and Good Sleep Habits’ in June 2021;[98] and
(f) Certificate of Attendance at a weekly Men’s Group relating to ‘Personal Growth and Behaviour Change Program in July 2021.[99]
Conduct while imprisoned / detained
72. There is no evidence the Applicant has been other than a compliant prisoner and detainee since March 2019.
Protective factors
73. If released, the Applicant stated he is unable to undertake fulltime work but aspires to part-time and volunteer work.[100] He intends to remain alcohol free with the assistance of SECADA, a counsellor, and his doctors. He also intends to ‘join a gym or a health club, research and write about meditation, and join yoga and meditation groups.[101] In terms of accommodation, the Applicant said he would live with a close friend in Melbourne, Mr Harjap Singh.[102] The Tribunal has considered an email and support letter from Mr Singh dated 11 June 2019, which stated in part: [103]
I Harjap Singh... certify that I know SANJAY KAWATRA...from around 13 years. I am aware of his circumstances, at present he is in Fulham Correctional Centre, and his Australian Visa/ residency has been cancelled. I am writing this to support him in this letter.
Sanjay is very calm, robust serene and intellectual person. He bears a good moral character. He has always been loved and liked by everyone here in my business. He has the good personality, as he always helps others, he is honest person. He is like my elder brother to me.
Sanjay is wise and experienced person; he has helped me in the past. I always seek good advice from him. He has a good behavior with my customers and friends.
I have helped and supported Sanjay in the past because of his ill wealth[sic] , I am happy to help in future also.
In 2001 Sanjay broke up with his family in Australia, he has two children, and the court has orders to not to meet his children, since then he has gone into severe depression and PTFT and started drinking alcohol heavily. He has got some medical issues also, like high bood sugar, depression.
Sanjay has no family and friend back in India. I am always there to help and support him. As he is my like family member.
If you have any queries, please feel free to contact me.
(Errors in original)
74. A further letter from Mr Singh dated 13 June 2020 is in similar terms, but he also expresses concerns about the Applicant’s ability to cope if returned to India.[104]
75. The evidence of Mr Godfrey Fernandez, a close friend of the Applicant, is that he will support the Applicant and ‘endeavor to see that he’s a different person’ if released.[105]
Tribunal findings: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
76. The Applicant accepts the close correlation between his offending and persistent alcoholism. He has undoubtedly confronted difficult circumstances in his life, including his parents’ death prior to departing India, marriage breakdown soon after arriving in Australia, and subsequent estrangement from his ex-wife and children for two decades. But these traumatic events in no way justify his persistent crimes, which commenced soon after arriving in Australia and prior to the end of his marriage. Many people experience the death of a parent, or end of a relationship, or family estrangement, but do not embark on decades-long offending. Notwithstanding the Applicant’s difficult past circumstances, the courts have sentenced him to imprisonment on several occasions. The community’s tolerance for the risk of similar harm would be very low.
77. The potential harm arising from a repeat of the Applicant’s offending and likelihood of such offending varies with respect to category:
(a) False or vexatious calls to emergency services, bomb hoaxes, or use of a carriage service to menace or harass: The potential harm arising from this category of offending includes serious physical or psychological injury or death. This could result from the unnecessary diversion of first responder units from real emergencies, leaving those in need without the assistance they urgently require. First responders could also be potentially put at risk when moving to emergency locations, which frequently involves busy traffic conditions and other hazards. The Applicant has committed this type of offending on multiple occasions between 2011 and 2019, and was not dissuaded by escalating penalties, including imprisonment. The likelihood of him engaging in similar offending is considered high;
(b) Conditional liberty offences: The potential harm arising from this category of offending is the continuing cost to the community of dealing with the Applicant’s persistent failure to abide by judicial orders. This includes the cost of police, court, and other publicly funded intervention. The Applicant has repeatedly breached conditional liberty provisions and was not dissuaded by escalating penalties. The likelihood of him engaging in similar offending is considered high;
(c) Offences involving violence or with a violent aspect: A repeat of the Applicant’s assault and breach of intervention order offences has the potential to cause physical and psychological harm. This offending last occurred between 2000 and 2006 and has not been repeated. The Applicant’s assurance that he would not commit family violence again, because did not intend to re-partner, is speculative at best. Although the potential harm of such offending is high, the Tribunal accepts the likelihood of the Applicant committing further violent offences is low;
(d) Arson: A repeat of the Applicant’s arson offences poses a significant risk to human life and property, including death. He has not committed arson since 2004, however, and although the potential harm from repeat offending is high, the likelihood of repeat is low;
(e) Driving and public nuisance offences: The Applicant’s persistent alcoholism gives rise to concerns about a repeat of his negligent / drink-driving offence. This has not been repeated since 2000, but the potential harm encompasses serious injury or death to other road users. While this cannot be ruled out given the Applicant’s persistent alcoholism, the likelihood is low. He is more likely to engage in public nuisance offending while drunk, causing inconvenience to the community, and requiring intervention by authorities like police and public transport officials.
78. The Applicant contends his rehabilitative progress since imprisonment in 2019 has reduced his recidivism risk to an acceptably low level. The Tribunal is unpersuaded by this for the following reasons:
(a) The Applicant persistently reoffended after receiving a formal warning from immigration authorities in 2004. This warning put him on notice about the potentially dire consequences for his visa status, but did not deter further offending, for which he received sentences of imprisonment in 2005, 2011, 2015, 2017, and 2019;
(b) The Applicant has received treatment and rehabilitation in the past for his mental health and inability to control excessive consumption of alcohol, but consistently relapsed and reoffended after returning to the community. The Tribunal accepts he has completed some recent counselling and courses, which is to his credit. He also expresses a commitment to continue his rehabilitation if released. But the persistent nature of his offending over two decades, does not inspire confidence. Any recent rehabilitative progress is in a supervised custodial setting, which is a substantially different context to that in which his past offending occurred. In terms of his aspiration to continue rehabilitation, the Tribunal notes that decisions should not be delayed for rehabilitation to be undertaken: cl 8.1.2(2)(b)(ii) of the Direction.
(c) The Applicant relies on essentially the same support framework of a few close friends, prospects of stable accommodation, part time and volunteer work, access to counselling,[106] and support from a general practitioner, social worker, and psychiatrist. This is not dissimilar to the supports available in the past. By way of example, the Applicant has accessed support from the same mental health social worker for approximately seven years.[107] The small group of friends he relies upon have also previously supported him for well over a decade. He has extensive past engagement with mental health practitioners, but his engagement with psychiatrist Dr Saluja is relatively recent and short-lived prior to imprisonment.[108]
79. The Applicant has inflicted substantial harm on the community over two decades and similar reoffending could inflict further harm. His overall risk of reoffending is significant and unacceptable. The nature and seriousness of the Applicant’s offending, coupled with his unacceptable risk of re-offending, results in this primary consideration weighing very substantially against revocation.
TRIBUNAL CONSIDERATION: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
80. Clause 4(1) of the Direction defines family violence as: ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member) or causes the family member to be fearful’.
81. Clause 8.2(1) of the Direction reflects the Australian government’s concerns about conferring on non-citizens who commit acts of family violence the privilege of coming into or staying in Australia. Clause 8.2(2) provides that this consideration is relevant in circumstances where:
(a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501 CA has been afforded procedural fairness.
82. In considering the seriousness of the family violence engaged in by the non-citizen, the Direction requires the following factors at cl 8.2(3) to be considered where relevant:
a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b) the cumulative effect of repeated acts of family violence;
c) rehabilitation achieved at time of decision since the person's last known act of family violence, including:
i. the extent to which the person accepts responsibility for their family violence related conduct;
ii. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii. efforts to address factors which contributed to their conduct; and
d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the noncitizen's migration status, should the non-citizen engage in further acts of family violence.
83. In a letter dated 20 August 2019 the Applicant contextualised his family violence offending some 20 years ago as follows:
[I]...breached the domestic violence order to win my family back. At the time I was very emotional and tearful I could not think outside the square I did not realize that if I had not been drinking I would not have lost my wife and two children.[109]
84. In the Applicant’s Reply dated 14 July 2021, he stated that limited weight should be placed on this primary consideration:
I acknowledge that the community rightly considers and, most importantly, the impact that my behaviour has had on my family. I am deeply sorry for the pain that I have caused them and do not seek to minimise my past offending in this regard.
...
As a result of my offending, my relationship with family has broken down and I have not had contact with them for many years. I have no partner and so there is no present risk of any future family violence offending.
Further, while my struggle with mental illness does not excuse my behaviour, it was a significant factor contributing to it. I continue to work hard to address my health issues and I contend that any risk that the Tribunal may consider exists is very low.
85. Mr Rogers submitted that although the Applicant has not committed family violence offences since 2006, the fact he had previously done so and failed to respond effectively to rehabilitation, should weigh in favour of non-revocation. Mr Rogers said the Applicant’s claim he would not engage in further family violence, because it was unlikely he would re-partner, was unpersuasive and should be given little weight.
Tribunal findings: Family violence committed by the non-citizen
86. The Applicant was convicted of several family violence offences in 2000, 2005, and 2006. This offending was against his ex-wife and attracted modest penalties.
87. The Tribunal notes the Applicant’s intention to regain contact with his children if released. There is no evidence contact with them or his ex-partner would be welcomed. Given the available facts, the potential for further family violence against his ex-wife appears very low but cannot be entirely discounted because of the Applicant’s high risk of relapsing into alcohol abuse and reoffending. That said, he has not committed further family violence during the past 15 years and although a previous history of such offending is of concern, this consideration weighs only slightly against revocation.
TRIBUNAL CONSIDERATION: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
88. Clause 8.3 of the Direction requires decision-makers to determine whether revocation is in the best interests of the child. This provision applies only if the child is, or would be, under 18 years old at the time when the application is decided. If there are two or more relevant children, the best interests of each child affected by the decision whether to revoke cancellation of a visa should be given individual consideration, to the extent that their interests may differ.
89. In considering the best interests of the child, the Direction requires the following factors at cl 8.3(4) to 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.
90. The Applicant stated he has not seen his wife and children for twenty years and that his daughter would now be 30 years of age and his son 21 years of age.[110] He claimed that his daughter has a child and that ‘minor grandkids’ will be looking for him.[111] No evidence is provided to corroborate that claim.
Tribunal findings: Best interests of minor children in Australia
91. The Tribunal accepts the Applicant’s evidence that he has had no contact with his ex-wife, adult children, or grandchild during the last twenty years. The age, present whereabouts, or circumstances of the minor grandchild cannot be ascertained. It is unknown if the child’s caregivers would contemplate a future relationship with the Applicant. The highest the evidence gets is the Applicant’s uncorroborated claim that several years ago he discovered his daughter has a child by searching for her social media profile, and he intends resuming contact. There is no evidence to corroborate the Applicant’s claims that his grandchild’s mental health would be ‘deeply affected’ by his removal from Australia.
92. Notwithstanding the paucity of evidence, the Tribunal accepts the Applicant has a grandchild in Australia. Remaining in Australia would enable him to pursue his aspiration to re-connect with and perhaps develop a positive relationship with this child. It is therefore in the child’s interests that the visa cancellation is revoked. Given the circumstances, however, this primary consideration only carries slight weight in favour of revocation.
TRIBUNAL CONSIDERATION: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
93. Clause 8.4(1) of the Direction states:
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.
94. Clause 8.4(2) of the Direction states that visa cancellation, refusal or non-revocation 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. Serious character concerns are raised because of conduct in Australia or elsewhere, of the following kind:
(a) acts of family violence;
(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;
(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;
(f) worker exploitation.
95. Clause 8.4(3) states that the above expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. Clause 8.4(4) states that this consideration is ‘about the expectations of the Australian community as a whole’ and directs decision makers to proceed on the basis of the Government’s views as articulated in the Direction, without independently assessing the community’s expectations in the particular case.
96. Clause 8.4(4) of the Direction correlates with the reasoning in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (FYBR), albeit under a different direction. Notwithstanding the different pathways in judicial reasoning, the plurality in FYBR held that ‘Expectations of the Australian community’ is a deeming provision with normative principles, ascribing an expectation aligning with that of the Executive Government. It is not for the Tribunal to determine the expectations of the Australian community based on the Applicant’s individual circumstances or evidence about those circumstances.[112] FYBR requires decision-makers to focus on what the Government has deemed the community’s expectations to be, to have due regard to those views, and to generally afford them more weight than other non-primary considerations: cl 7(2) of the Direction.[113]
97. The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine.’[114]
98. The Tribunal notes the High Court refused an application for special leave to appeal from the orders in FYBR, holding at [301]–[303] that ‘there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.’[115]
99. Mr Rogers submitted the applicant has engaged in serious criminal conduct on multiple occasions contrary to the expectation of the Australian community. He said the Australian community expects the Government not to allow those who engage in serious conduct contrary to this expectation to remain in Australia: paragraph 8.4(1) of the Direction.
Tribunal findings: Expectations of the Australian community
100. The Applicant has lived in Australia for almost 25 years and would therefore be afforded a higher level of tolerance for his criminal conduct. However, he has not obeyed Australian laws for most of his residence here, continually breached judicial orders and community expectations, and caused harm to others, after only a relatively brief period of positive contribution. Notwithstanding other positive features of his application, this primary consideration weighs very substantially against revocation.
OTHER CONSIDERATIONS
Tribunal Consideration: International non-refoulement obligations
101. The Applicant did not advance non-refoulement claims at the first hearing of this matter or during the present hearing. His claims instead focussed on impediments to re-establishing himself in India, including finding work, accessing healthcare, sourcing practical and emotional support, and avoiding COVID-19.[116]
Tribunal findings: International non-refoulement obligations
102. Clause 9.1 of the Direction is not enlivened and carries neutral weight. The Applicant’s claims about impediments to removal are considered next.
Tribunal consideration: Extent of impediments if removed
103. Clause 9.2(1) of the Direction states that:
(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) The non-citizen’s age and health;
b) Whether there are substantial language or cultural barriers; and
Country of return
104. There is no dispute the country of return in the event of repatriation is India. The Applicant said he last visited India in 2002,[117] but no longer has a passport.[118]
Age, language, culture
105. The Applicant is currently 57 years of age and lived in India until the age of 32. He speaks fluent Hindi and English[119] and made no claims about language or cultural impediments.
Social welfare system in India and other support
106. The Applicant said there has ‘never been a social welfare system in India’[120] and no comparable Government-funded assistance like Medicare, telehealth, disability payments, and other support in Australia. He claimed this would render him destitute and unable to maintain basic living standards,[121] constituting a ‘death sentence’. He initially claimed to have no surviving relatives in India, but subsequently accepted he did have cousins, as stated at the previous hearing.[122] The Applicant said he was not in contact with his cousins and has no other friends to rely upon.[123]
COVID-19
107. The Applicant made comprehensive submissions about potential risks to his health from COVID-19 if repatriated to India. His fears centre on being unable to avoid COVID-19 in a much more populated country, and inability to source treatment from an overstretched medical system if he did contract it:[124]
... the Minister minimises the extent of the impediments that I will face if I am returned to India.
...there are substantial limitations in the health care services available in India and I will face significant difficulties obtaining employment. This will impact my ability to obtain treatment for my serious health issues. While the Indian government has increased health funding in recent years and introduced a safety net for vulnerable members of the community, as the DFAT report points out, there are serious flaws in the program and it is insufficient to meet my ongoing need.
Further, notwithstanding that the COVID-19 situation in India has improved somewhat, my existing health conditions and the difficulties I will face in maintaining even basic living standards puts me at particular risk of serious illness or death from COVID-19 or black fungus.
In my submission the impediments that I will experience are substantial and significant weight should be given to them.[125]
108. The Applicant also tendered several media articles and a list of hyperlinks, dated between 24 April 2021 and 15 June 2021 regarding the COVID-19 situation in India,[126] explaining:
Risks posed by COVID-19
26. The devastating impact of COVID-19 in India has been the subject of extensive media coverage in recent weeks (see Attachments C1-C6).
27. COVID-19 and the related issue of mucormycosis (black fungus) have seen a significant spike in infections and deaths. Currently, India is experiencing more than 70,000 cases each day and around 4,000 deaths.[127] The death toll from COVID-19 so far is 374,305.[128]
28. The original virus COVID-19 in India has mutated and these new COVID-19 strains are highly contagious and virulent.
29. The Indian health system has been unable to cope with the pandemic and there is a lack of medical resources such as ventilators, oxygen, personal protective equipment, medicines, vaccines, hospital beds, doctors and nurses. In India, hospitals are overwhelmed with patients.
30. Dehli has a population of more than 10 million people. If I am removed from Australia I will be homeless. It will impossible for me to main safe social distancing in that environment, putting me at even higher risk of contracting COVID-19.
31. This risk is exacerbated by my underlying health conditions, especially chronic and acute diabetes. I am highly susceptible to infection from the widespread COVID-19 and Mucormycosis in India. I have very low immunity because of my diabetes and other underlying health issues and I am at high risk of developing a serious heart condition because of hypercholesterolemia and diabetes complications. These further increase the risk to my health from COVID-19.
32. Given the situation in India which currently has an international travel ban in place, as well as the general issues with overseas travel currently, I am likely to remain in detention in Australia for some time if the decision to cancel my visa is not revoked.
33. I concerned that the longer I remain in detention, the greater the risk that I will contract COVID-19. The detention centre is overcrowded. It is impossible to maintain a social distance. The mental and medical health services are very limited. I contend this also weighs heavily in favour of revocation.[129]
109. During oral evidence the Applicant confirmed he was not immunised against COVID-19, was too ‘scared to take the AstraZeneca,’ and had yet to be offered immunisation in detention. When asked if eventual vaccination against COVID-19 might alleviate his concerns, he responded: ‘Yes but they haven’t offered any vaccination till now, maybe later they might offer’.
110. The Tribunal has considered the DFAT Country Report, referring to the Indian economy being sharply impacted by the COVID-19 pandemic, resulting in its ‘first ever technical recession.’[130] Reference is also made to high levels of unemployment, particularly but not exclusively among India’s youth.[131] The Tribunal has also considered the references to challenges faced by India’s health system, including the strain placed on health infrastructure and difficulties in accessing mental health care.[132]
Work intentions
111. The Applicant claimed he does not want to ‘sit idle in the community’[133] and aspires to an immediate return to part time work if released, stating: ‘I can do a job; that’s not a problem’.[134] He considers his current health enables this in an appropriate sedentary job in Australia, but not in India. He said this was because of his more recent familiarity with call centre and customer service roles in Australia, having previously worked in large telecommunications companies in Australia, and being ‘good at computers.’[135] In contrast, he said finding a job in India would be very difficult because he has not returned there for almost 20 years, has no current networks to rely upon, and COVID-19 had worsened unemployment.[136] He said that he could only become eligible for Indian Government support and other payments through employment, which was not realistically in prospect.
Health
112. The Applicant said he was granted a Disability Support Pension in 2004,[137] but provided no corroborating evidence of this. His evidence contains frequent references to health conditions, medications, and treatments, including:[138]
(a) Back problems. The Applicant claims to suffer ‘severe osteoarthritis, cervical spondylosis and sciatica’ causing ‘excruciating pain’ for which he is prescribed regular medications.[139] An MRI Report dated 21 January 2020[140] is technical in nature and does not elaborate on the significance of the following findings:
...widespread facet joint arthropathy, most marked inferiorly. There is associated narrowing of the neural exit foraninae at multiple levels. There is a mild broadbased disc bulge at the L4/L5 level which indents the thecal sac. There is a broadbased disc bulge at the L5/S1 level centred to the left of midline. A clinically significant lesion at this level would protrude symptoms at or below the left S1 level.
(b) Eye problems: A letter from the Applicant dated 19 December 2019 stated he was waiting for an appointment with an eye specialist regarding ‘low vision’ in his right eye.[141] He subsequently claimed to be suffering macular degeneration,[142] although a report from an ophthalmology consultant discloses ‘good visual acuity of 6/9 in each eye’ and ‘no treatment is required’ for the eye condition.[143] Two pairs of glasses were provided to the Applicant in July 2020.[144] During the hearing the Applicant referred to a further ophthalmological consultation for which a report was not provided, but stated no treatment was recommended;
(c) Other conditions. A Patient Health Summary printed on 17 June 2019 stated the Applicant’s conditions then included: depression, Type 2 diabetes, high cholesterol, hypertension, cervical spondylosis, and anxiety disorder.[145] The Applicant’s oral evidence is that he has taken tablets for hypertension for 20 or 30 years;[146]
(d) IHMS records. The Tribunal has considered IHMS health records during the Applicant’s immigration detention.[147] A number refer to the Applicant requesting referral to a psychologist on several occasions ‘because he was told that for a positive outcome of his court case he needs to have psychological counselling’;[148]
(e) A list of medications dated 2 July 2019 from the Applicant’s most recent period of imprisonment refer to diabetes, depression, blood pressure, cholesterol management, and heartburn / gastric reflux; and a vitamin deficiency.[149] More recent records from IHMS disclose the Applicant received immunisations in December 2019 and April 2020,[150] and has been prescribed medications for conditions including diabetes, depression, chest pain, joint and generalised pain, stomach issues, allergies, vitamin deficiency, and coughs / congestion;[151]
(f) The Applicant stated that he needs to remain in Australia to access counselling and support services.[152] The Tribunal has considered a three-line note, with the handwritten date ‘02/06/2018’, over the signature block of psychiatrist Dr Bharat Saluja, which stated:
This is to confirm that I have started assessing and managing Mr Sanjay Kwatra (DOB: 31/07/1964) in my clinic from 19/05/2018 onward. My current working diagnosis in Alcohol Dependence and Post Traumatic Stress Disorder;[153] and
(g) A letter dated 26 June 2018 from a mental health social worker to the Applicant’s general practitioner states: ‘I provided psycho-education and counselling support sessions for Mr Sanjay Kwatra...Please find enclosed copy of the report.’[154] The Tribunal has considered an attached report referring to strategies to address the Applicant’s ‘reactive depression and anxiety;’[155] and
(h) The Applicant stated that a dentist has diagnosed chronic problems with his teeth and recommended they be replaced with dentures. The Tribunal has considered a dental examination report dated 16 January 2020, while the Applicant was in custody, disclosing several treatment needs, which the Applicant declined.[156] The Applicant explained during the hearing this is because he is uncertain about who will provide dentures if he proceeds with the recommended treatment.
Respondent’s submissions
113. Mr Rogers acknowledged the impediments confronting the Applicant, but said these were ‘not insurmountable’.[157] He said the Applicant’s formative years into his thirties were spent living and working in India, and it was not out of the question he could rely on some support from cousins there. Mr Rogers accepted the Applicant’s medical conditions adversely impacted his risk of contracting COVID-19 but submitted his medical conditions were not unusual and there was no evidence they could not be treated in India. He said the Applicant could access a healthcare ‘safety net’ in India available to other Indian nationals, and private healthcare if he could secure employment and earn a regular income.[158] Mr Rogers referred the Tribunal to the DFAT Country Report, which showed India’s economy was characterised by long-term, sustained economic growth.[159]Mr Rogers said the Applicant had prospects of finding work because he held a bachelor degree in science, spoke several languages fluently, had previously worked in India, and in customer service roles within the Australian telecommunications industry. Mr Rogers accepted the COVID-19 Pandemic had been particularly severe in India but said infection numbers markedly declined after a peak in May 2021, and vaccination numbers were increasing.[160]
Tribunal findings: Extent of impediments if removed
114. The Applicant spent the first 32 years of this life in India. He speaks English and Hindi and there are no discernible linguistic or cultural impediments. There are some positive indicators of him being able to re-establish himself in India, including:
(a) Completion of an undergraduate degree and a decade of work in India until the age of 32. Although the Applicant has not returned for approximately 20 years, he is an intelligent man with clear capacity in languages and work skills in the field of telecommunications and information technology;
(b) The Applicant has been sober for approximately two years and states he can return to some form of part time work commensurate with his medical restrictions; and
(c) The potential for some form of emotional or practical support from cousins in India.[161]
115. There are also negative factors giving rise to concerns about the Applicant’s ability to re-establish himself in India, including:
(a) He has been largely reliant on Australian Government payments since ceasing work in 2008. If the Applicant does not achieve his aspiration to remain abstinent from alcohol and return to work, his prospects of providing for his daily needs will be substantially diminished.[162] The Tribunal acknowledges the guidance in the Direction, however, about impediments being considered in the context of what is generally available to other Indian citizens. There is no evidence the Applicant would be treated differently to other Indian citizens, although it is accepted any Government-funded services and support would likely be much less than what he could receive in Australia;
(b) The Applicant is in his mid-50s with a substantial criminal record, persistent alcoholism, and multiple comorbidities. His confirmed medical and psychological conditions are not rare and there is no evidence treatment for them is not available in India. The Tribunals accepts, however, that the Indian health system has experienced severe challenges because of COVID-19, which may adversely impact the Applicant’s ability to source the treatments he requires;
(c) The Applicant has no recent experience in the Indian job market and is yet to approach his cousins to test the availability of practical or emotional support. There is no evidence he can draw on support from any friends in India; and
(d) The Applicant stated he has no meaningful savings, having previously withdrawn and spent his superannuation.
116. The Tribunal accepts the Applicant has experienced longstanding depression, anxiety and takes medications for several medical conditions. Some of his medical claims, however, appear overstated. For example:
(a) The Tribunal accepts the Applicant has experienced back problems in the past and the MRI he provided may reflect age-related ‘degenerative changes’, which is controlled by painkillers.[163] There is no expert interpretation of the MRI report provided, however, to corroborate his claims about ‘severe osteoarthritis, cervical spondylosis and sciatica’ causing ‘excruciating pain;’
(b) The Tribunal is unable to make a reliable finding the Applicant suffers macular degeneration.[164] A consultant’s report stated ‘no treatment is required’ for his eye condition[165] and the Applicant said a further ophthalmological consultation resulted in no treatment;
(c) There is no evidence to confirm the working diagnosis of PTSD referred to by Dr Saluja during brief interactions with the Applicant over two years ago,[166] or that any treatment for PTSD was ordered.
117. The Tribunal accepts the COVID-19 Pandemic has adversely impacted the Indian economy, which would affect the Applicant’s ability to find suitable employment and meet his treatment needs. The rollout of vaccines to address COVID-19 is still at a relatively early stage and notwithstanding the recent improvements noted by Mr Rogers,[167] the situation in India continues to be serious, posing a significant threat to human health. The Tribunal accepts that COVID-19 is highly infectious and may cause severe respiratory and other symptoms or death in some patients. With his comorbidities and in concentrated population settings throughout much of India, the Applicant is likely to be more susceptible to contracting COVID-19 or infections like Black Fungus, with adverse health consequences. Notwithstanding the absence of expert evidence to clarify the extent to which his diagnosed conditions may place him at higher risk of contracting COVID-19 if returned, the Tribunal accepts he was unvaccinated at the time of the hearing, is consequently more vulnerable to contracting COVID-19, and may be more severely impacted because of his comorbidities. The Applicant agreed during oral evidence that vaccination would alleviate his concerns, but it remains uncertain when this might be offered or if the Applicant would accept the vaccination offered.
118. The Applicant claimed he does not have a passport or travel document.[168] This is not considered a significant impediment to repatriation, however, given there is no dispute he is an Indian citizen and no evidence a passport or travel document would not be granted.
119. In addition to risks from COVID-19, if the Applicant relapses into alcohol abuse, his health is likely to deteriorate. Even if he did remain abstinent, the Tribunal considers it likely he will be confronted by considerable impediments in re-establishing himself and maintaining basic living standards. On balance, this consideration weighs very substantially in favour of revocation. Given the specific circumstances of this case the Tribunal has decided to treat it as a primary consideration.
Tribunal consideration: Impact on victims
120. Clause 9.3(1) of the Direction provides that the Tribunal must consider the impact of a non-revocation decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where this information is available.
121. There is no evidence about the impact of a decision in this matter from the victims of the Applicant’s offending or their family members.
Tribunal findings: Impact on victims
122. The Tribunal finds this consideration is not enlivened and is of neutral weight.
Tribunal consideration: Links to the Australian community
123. Clause 9.4 of the Direction provides that decision-makers must,
reflecting on the principles at cl 5.2, have regard to cl 9.4.1
relating to the
‘Strength, nature and duration of ties to Australia,’ and cl
9.4.2 relating to ‘Impact on Australian business interests.’
The Applicant last engaged in the paid economy approximately 13 years ago. There
is no evidence that a decision in this matter
risks compromising the delivery of
a major project or an important service in Australia. It follows that the
presumption in the Direction
is not displaced and
cl 9.4.2 of the Direction
is of neutral weight.
Tribunal consideration: Strength, nature, and duration of ties
124. Clause 9.4.1 of the Direction states:
(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) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community. In doing so, decision-makers must have regard to:
(a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
125. The Applicant has lived in Australia since December 1996 and was convicted of his first offence in September 1998. His offending continued over the next two decades. He submitted that if removed from Australia he would be denied the ‘possibility of reunion with family in Australia’,[169] which would impact them ‘deeply for all their life’.
126. In terms of positive contributions, the Applicant said he worked from 1996 until 2008 in customer service and call centres in large Australian telecommunications companies as well as with a friend’s business.[170] The evidence discloses his last paid employment was approximately 13 years ago.[171] Other evidence suggests some involvement with the Indian community, although its extent is not corroborated by the organisations or beneficiaries of this involvement. If allowed to remain in Australia, the Applicant expressed an intention to share his ‘knowledge...vision and experience in life to help multicultural Australian communities.’[172] He considers that by using his ‘wisdom to the community,’ he might help others avoid his mistakes and become ‘victim[s] of alcoholism.’[173]
127. The Applicant’s evidence about ties to the community focusses on the support of three friends who have helped him for ‘a long time:[174]
(a) Mr Harjap Singh. The Tribunal has considered supportive letters from Mr Singh dated 11 June 2019 and 13 June 2020, which state he has known the Applicant for about 13 years, they are close friends, and he is ‘happy to help [him] in the future’.[175]
(b) Mr Godfrey Fernandez. The Tribunal has considered supportive
letters from
Mr Fernandez dated 3 August 2019 and 20 June
2020.[176] The Tribunal has also
considered Mr Fernandez’s oral evidence at the first hearing of this
matter.[177]
Mr Fernandez
claims to have known the Applicant for 20 years, but in recent years has not
been able to give him that much support
because of business commitments. He
referred to the Applicant as an intelligent and multilingual
man,[178] who is skilled in the
use of computers, information technology, marketing and
sales.[179] Mr Fernandez claimed
the Applicant did not commit his crimes
‘intentionally,’[180]
and has ‘not committed a crime in harming other people in the
community.’ He fears that if the Applicant is repatriated to India,
‘his children and grandchildren will be affected by the separation and
that will have a detrimental effect on their well being.’ Mr Fernandez
said he will offer the Applicant accommodation and part-time employment if
released;
(c) Mr Gulshan Dawer. The Tribunal has considered supportive letters
from Mr Dawer dated 27 January 2020 and 19 June
2020.[181] The Tribunal has also
considered
Mr Dawer’s oral evidence at the first hearing of this
matter.[182] Mr Dawer stated he is
a real estate agent and the Applicant previously rented a premise from him. He
has known the Applicant for
approximately 13 years, and they speak
intermittently.[183] He stated if
the Applicant is released, ‘we will try our level best to find him
suitable
accommodation.’[184] Mr
Dawer referred to the Applicant’s past volunteer work at a Sikh temple,
and undertakes to help the Applicant find
accommodation;[185]
(d) Letter dated 13 February 2020. The Applicant provided a one-page letter with 12 names listed, against which there are ten signatures.[186] The letter purports to be from friends of the Applicant, but no addresses are provided. The basis of the claims made, or how the signatories have the knowledge contained in the letter could not be tested because they were not called as witnesses. The Tribunal places little weight on this letter.
128. None of those referred to above were called as witnesses at the present hearing. Mr Fernandez and Mr Dawer gave evidence at the first hearing. In considering references from family members, friends and work associates, the Tribunal is mindful they can often provide the best possible perspectives about an Applicant’s crimes, which other members of Australian society might consider unacceptable. Care must therefore be taken about the weight placed on references from family members and friends, particularly those with only a limited understanding of the Applicant’s past crimes.
129. Mr Rogers submitted that only ‘limited weight’ should be given to this consideration given the Applicant’s limited network of friends and ties to the community.
Tribunal findings: Strength, nature, and duration of ties
130. The Applicant’s offending commenced within two years of arrival in Australia and less weight is consequently placed on this consideration. It is accepted the Applicant has made some positive contribution through work prior to 2008 and intermittent paid and voluntary employment since. The evidence about his positive contribution is scant at best and attracts little weight.
131. For someone who has spent approximately 25 years in Australia, the Applicant’s ties to the community are very limited. The Tribunal accepts Mr Harjap Singh, Mr Godfrey Fernandez, Mr Gulshan Dawer, and perhaps others would be disappointed and saddened if the Applicant is repatriated to India. There is no evidence, however, that the impact of an adverse decision extends beyond an emotional effect on this small group of friends.
132. The Tribunal rejects the Applicant’s evidence that his now adult children and ‘minor grandkids’ will be looking for him,[187] which is uncorroborated and speculative.
133. Notwithstanding the limited nature of the Applicant’s ties to Australia, what ties he has are mostly here. On balance, this consideration weighs moderately in favour of revocation.
Tribunal consideration: COVID-19 in detention
134. The Applicant’s submissions about contracting COVID-19 while detained in Australia, are considered under the non-exhaustive chapeau of cl 9(1) of the Direction. He submitted in documentary evidence that because of travel restrictions arising from COVID-19 he is likely to spend longer detained in the event of an adverse decision, accentuating his risk of contracting COVID-19:
... the longer I remain in detention, the greater the risk that I will contract COVID-19. The detention centre is overcrowded. It is impossible to maintain social distance. The mental and medical health services are very limited. I contend this also weighs heavily in favour of revocation. [188]
135. The Tribunal sought information from the Respondent about any COVID-19 measures in immigration detention. On 20 July 2021 Mr Rogers provided the following response:
...
We write to provide up to date information about the arrangements to protect immigration detainees from COVID-19.
We are instructed that the applicant has been held in detention in Yongah Hill IDC since 12 February 2020.
At the time of writing there have been no confirmed cases of COVID-19 in the immigration detention network.
We are instructed that the following measures are in place in relation to management of COVID-19 risks for the applicant.
IHMS have identified Mr Kwatra as a vulnerable detainee who is at an increased risk in the event of contracting COVID-19, due to his diagnosis of diabetes and hypertension (high blood pressure).
IHMS has worked with relevant stakeholders to minimize the risk of exposure and contraction of the virus for all detainees in the immigration network, thereby also protecting those detainees identified as vulnerable.
Of note, IHMS has undertaken the following actions:
IHMS is sufficiently prepared and resourced to conduct testing for COVID-19 at all Immigration Detention Centres and testing is undertaken in accordance with Department of Health guidelines. IHMS will refer detainees for quarantine and isolation in accordance with guidelines issued by the Department of Health and refer detainees for hospital care as medically indicated.
In relation to Mr KWATRA specifically, Mr KWATRA’s health issues are being managed by IHMS. This includes but is not limited to primary health (including GP) consultations as clinically indicated; monitoring of his vital signs; and administration of medication to assist managing his health conditions.
Mr KWATRA also has a hypertension and diabetic care plan in place which prompts intervention at set intervals for tasks including but not limited to GP review, monitoring of blood pressure, optician review, and blood pathology collection.
Furthermore, IHMS notes that on 05 July 2021 during an IHMS primary health nurse consultation, Mr KWATRA was screened for COVID-19 on entry to the IHMS clinic, and no symptoms were identified. His observations were reported as stable.
136. During the hearing and in response to the Applicant’s further submissions, the Tribunal asked the Respondent to seek instructions about any COVID-19 measures implemented for non-citizens awaiting removal after a non-revocation decision. On 28 July 2021 Mr Rogers provided the following response:
We are instructed that in consultation with relevant stakeholders (including its Immigration Detention Health Services Provider and Medical Officers of the Commonwealth), the Department is developing a detailed implementation plan to offer vaccines to all detainees. Vaccinations will only be administered if a detainee consents, and will not be mandatory. At this stage, it is not known when Mr Kwatra will be offered a vaccination under this planned rollout.
In general, if a detainee is on a removal pathway prior to the rollout, they will not receive the COVID vaccination prior to departure.
137. The Tribunal gave leave for the Applicant to make any submissions in response within seven days of receiving the Respondent’s advice dated 28 July 2021, but the Applicant did not respond.
Tribunal findings: COVID-19 in detention
138. The Tribunal accepts the Applicant may be more susceptible to COVID-19 because of his comorbidities but does not accept that inadequate COVID-19 preventative measures in immigration detention accentuate his risk of contracting it. These claims were uncorroborated and contradicted by the Applicant’s medical records. The Tribunal accepts the Respondent’s evidence in Exhibit R3 that no detainee in Australia’s immigration network had contracted COVID-19 up to the time of that advice, and protective measures against COVID-19 have been implemented, which encompasses people like the Applicant who are more susceptible because of their comorbidities.
139. The Tribunal does not accept the Applicant’s contention that the ‘very limited’ nature of medical services in detention accentuates his risk of contracting COVID-19. His IHMS records reflect frequent consultations following requests for medical support and there is nothing to suggest the availability of medical support links to an increased risk of him contracting COVID-19.
140. The Applicant’s submission that an adverse decision means he will remain in detention for a longer period because of COVID-19 is speculative and turns on several unknown factors. In terms of the primary legal consequence of an adverse decision in this matter, the mandatory cancellation of his visa meant he became an unlawful non-citizen within the meaning of s 14 of the Act. In the event of a non-revocation decision, he is liable to be detained under s 189 of the Act and removed as soon as reasonably practicable: s 198. It is permissible to continue his detention while he exercises appeal rights, or makes a protection visa application, or arrangements are made for his return.[189] The Applicant’s intentions about exercising the options open to him are unknown. There is also no evidence that any options relating to a possible exercise of ministerial discretion or third-country relocation might be contemplated. It similarly remains unclear how COVID-19 or a comparable intervening act may impact the time he spends in detention, or when he may be offered vaccination, or if he would accept the vaccination offered. In this regard, the Tribunal respectfully adopts the reasoning of Flick J in Ali:[190]
‘The prospect that future decision-making may confront the Minister with difficult choices, it is respectfully considered, cannot presently impact upon the present exercise of the power conferred by s 501CA(4). No matter how real the prospect may be of future decisions being impacted upon by the adverse assessment made by the Assistant Minister on 25 October 2017 for the purposes of s 501CA(4)(b)(i), the power exercised on that date was to be exercised – and was in fact exercised – by reference to the facts and circumstances then prevailing’...
141. In DOB18,[191] Griffiths J reflected favourably on the reasoning in Ali and similarly cautioned against speculating about the course of future decision-making:
...Justice Flick’s reasoning in Ali was adopted and applied by Logan J in Greene at [19] and by Farrell J in Turay at [40]...Contrary to the applicant’s submissions, I do not consider that the reasoning in this trio of cases is plainly wrong. Indeed, I consider that it is plainly correct. In my respectful view, it properly recognises the importance of the different stages of decision-making under the Act and the need to avoid speculation as to what might or might not occur in future decision-making...
(Emphasis added)
142. Irrespective of available options, a non-revocation decision is of considerable significance for the Applicant. The Tribunal accepts that someone with the Applicant’s comorbidities may be more susceptible to COVID-19 and its adverse effects. It is also accepted there is at least the potential he may spend longer in immigration detention because of COVID-19 considerations. This weighs somewhat in favour of revocation.
CONCLUSION
143. Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Applicant does not pass the character test. In determining if there is ‘another reason’ why the mandatory cancellation of his visa should be revoked, the Tribunal has applied the Direction to the specific circumstances of his case. The Tribunal considers it necessary to depart from the guidance that greater weight ‘should generally be given’ to the primary considerations than other considerations, in finding that Extent of impediments if removed assumes the weight of a primary consideration.
144. The Applicant’s offending during more than two decades in Australia is undoubtedly very serious. He has inflicted substantial harm on the community and constitutes an unacceptable risk of recidivism.
145. The Applicant has had no contact with his ex-wife or children since his marriage broke down twenty years ago, or the grandchild whose interests he invokes. His claim about resuming a relationship with his family members is aspirational at best. His links to the Australian community are relatively limited, but what links he has are predominantly in Australia and centre on three supportive friends.
146. It is accepted that as a result of his comorbidities the Applicant may be more susceptible to COVID-19 and its adverse effects, irrespective of whether he is in Australia or India. It is also accepted there is at least the potential he may spend longer in detention because of COVID-19 impacts if his application is refused.
147. Having weighed all relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the decision to cancel the Applicant’s visa should be revoked. That is because three of the primary considerations in this matter weigh against revocation to different degrees. ‘Protection of the Australian community’ and ‘Expectations of the Australian community’ weigh very substantially against revocation, while Family violence committed by the non-citizen weighs slightly against revocation. These considerably outweigh the combined weight given to the primary consideration Best interests of children, Extent of impediments if removed, which has been treated as a primary consideration, and the other countervailing considerations.
DECISION
148. It follows that the Tribunal affirms the decision under review.
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I certify that the preceding 148 (one hundred and forty-eight)
paragraphs are a true copy of the reasons for the decision herein
of Senior
Member A. Nikolic AM CSC
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...[sgd].....................................
Associate
Dated: 2 September 2021
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Date of hearing:
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21 July 2021
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By video-conference
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Mr Ned Rogers
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Australian Government Solicitor
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[1] Exhibit R1, 50 [13]; 96.
[2] Ibid, 75.
[3] Ibid, 50 [14]-51 [1].
[4] Ibid, 96.
[5] Ibid, 56.
[6] Ibid, 96.
[7] Ibid, 102.
[8] Ibid, 96.
[9] Ibid, 56.
[10] Ibid, 37-39.
[11] Ibid, 54 [29].
[12] Ibid, 63-64.
[13] Ibid, 65.
[14] Ibid, 37-38.
[15] Ibid, 57-62.
[16] Ibid, 66-126.
[17] Ibid, 115.
[18] Ibid, 160-166.
[19] Ibid, 167.
[20] Ibid, 1-5.
[21] Re Kwatra and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 2633.
[22] Kwatra v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 58.
[23] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ).
[24] Direction, cls 2-3.
[25] Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408, 425 (Brennan J); Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78, [10]-[11] (Logan, Perry, and Beach JJ).
[26] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; (2018) 74 AAR 545, [23]; [28] (Colvin J).
[27] Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48; (2016) 241 FCR 461.
[28] [2018] FCAFC 116; (2018) 263 FCR 531, [64] (Colvin J).
[29] Exhibit R1.
[30] Exhibit R2, Australian Government, Guides to Social Policy Law-Social Security Guide (2020).
[31] Exhibit R3.
[32] Exhibit A1.
[33] Exhibit A2.
[34] Exhibit A3.
[35] Exhibit A4.
[36] Exhibit A5.
[37] Exhibit A6. IHMS provides primary and mental health care services within the Australian immigration detention network.
[38] Exhibit A7.
[39] Exhibit A8.
[40] Exhibit R1, 41-55.
[41] Ibid, 99.
[42] The name attributed to a potentially fatal fungal infection called Mucormycosis.
[43] Exhibit R1, 193.
[44] Exhibit A7.
[45] Ibid, 239 [46].
[46] Exhibit A5.
[47] Exhibit R3.
[48] Exhibit R1, See for example: 369; 371; 373; 374; 376; 377; 379; 383-385; 389; 391-400; 403; 407.
[49] Exhibit R1, 63-64.
[50] Ibid, 80.
[51] Exhibit A3.
[52] Exhibit R1, 44 [4].
[53] Ibid, 45 [6]; 48 [3].
[54] Exhibit A2.
[55] Exhibit A3.
[56] Exhibit R1, 47-55.
[57] Ibid, 51 [15]; 52 [20]; [22].
[58] Ibid, 51 [15]; [18].
[59] Ibid.
[60] Ibid, 52 [20]; [22].
[61] Ibid, 41 [25]; 43 [5]; [16].
[62] Ibid, 43 [29].
[63] Ibid, 44 [16]-[21].
[64] Ibid, 45 [9]-[25].
[65] Respondent’s Statement of Facts, Issues and Contentions (RSFIC), 3-5.
[66] Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 90; (2020) 276 FCR 516, [64].
[67] The Full Court of the Australian Federal Court has held that violence is not limited to physical violence and breach of an Apprehended Violence Order involves violent conduct: Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 90; (2020) 276 FCR 516[53]; [55]; [59] (O’Callaghan J).
[68] Exhibit R1, 49 [8]-[9].
[69] Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 (Guo), 578-579.
[70] Ibid at 574-575.
[71] Hughes at 392.
[72] Exhibit R1, 52 [22].
[73] Ibid, 53 [24].
[74] Ibid, 44 [3]-[8].
[75] Ibid, 44 [12]-[14].
[76] Ibid, 45 [2].
[77] Ibid, 80; 96.
[78] Ibid, 99.
[79] Ibid, 300 [27].
[80] Ibid, 96-97; 103.
[81] Ibid, 300.
[82] Ibid, 97.
[83] Exhibit A1, 6 [45].
[84] Exhibit R1, 99.
[85] Exhibit A1, 6 [41].
[86] Ibid, 118.
[87] Exhibit R1, 118.
[88] Exhibit A1, 6 [47].
[89] Exhibit R1, 98.
[90] Ibid, 98; 300 [34].
[91] Ibid, 80.
[92] Ibid, 87.
[93] Ibid, 114.
[94] Ibid, 101-103.
[95] Ibid, 102.
[96] Ibid, 95.
[97] Exhibit A1.
[98] Ibid.
[99] Ibid.
[100] Exhibit R1, 300 [5]-[9]; 302 [5].
[101] Ibid, 118-119.
[102] Ibid, 74; 98.
[103] Ibid, 104-105.
[104] Ibid, 197-198.
[105] Ibid, 283 [43].
[106] Ibid, 297 [30]; [43]-[47]; 298 [4]-[11].
[107] Ibid, 230 [33]; 297 [37].
[108] Ibid, 89.
[109] Ibid,96-97.
[110] Ibid, 298 [25]-[27].
[111] Ibid, 301 [20].
[112] FYBR (2019) 272 FCR 454, at 471–2 [66] (Charlesworth J), and 476 [91] (Stewart J).
[113] Ibid [74] (Charlesworth J). See also Say v Administrative Appeals Tribunal [2020] FCA 1489, [39] (Charlesworth J).
[114] Ibid at 473 [75]–[76] (Charlesworth J).
[115] FYBR v Minister for Home Affairs and Anor [2020] HCATrans 56.
[116] Exhibit A1, 2-5 [11]-[37].
[117] Exhibit A1, 4 [24].
[118] Exhibit R1, 74.
[119] Ibid, 92.
[120] Ibid, 302 [1].
[121] Exhibit A1,4 [23].
[122] Ibid, 239 [46].
[123] Exhibit R1, 69; 301 [27].
[124] Exhibit A1, 7 [50].
[125] Exhibit A1.
[126] Exhibit A8.
[127] World Health Organization, Emergency Dashboard – India <https://covid19.who.int/region/searo/country/in>.
[128] Ibid.
[129] Exhibit A1, 4-5.
[130] Exhibit A4, 2.24.
[131] Ibid, 2.26; 2.48-2.49.
[132] Ibid, 2.42.
[133] Exhibit R1, 301 [1].
[134] Ibid, 302 [5].
[135] Ibid, 299 [20].
[136] Exhibit A4, [2.24]-[2.25]; [2.48].
[137] Exhibit R1, 116.
[138] Ibid, 83; 86-93.
[139] Ibid, 115; 122.
[140] Ibid, 191-192.
[141] Ibid, 115; 122.
[142] Ibid, 299 [21].
[143] Ibid, 193.
[144] Ibid, 397.
[145] Ibid, 88.
[146] Ibid, 299 [37].
[147] Ibid, 361-505.
[148] Ibid, 364; 388; 394.
[149] Ibid, 108-109.
[150] Ibid, 403; 455; 488.
[151] Exhibit A6; Exhibit R1, 482-485.
[152] Exhibit A1, 3 [17].
[153] Exhibit R1, 89.
[154] Ibid, 90.
[155] Ibid, 91-93.
[156] Exhibit A7.
[157] RSFIC, 12 [68].
[158] Ibid, 11 [64].
[159] DFAT Country Report, 2.23.
[160] RSFIC, 12 [68]; World Health Organisation, Novel Coronavirus Disease Situation update Report 79 <https://cdn.who.int/media/docs/default-source/wrindia/situation-report/india-situation-report-73.pdf?sfvrsn=a39189a8_4>.
[161] Exhibit R1, 239.
[162] Ibid, 116.
[163] Ibid, 299 [8]-[14].
[164] Ibid, 299 [21].
[165] Ibid, 193.
[166] Ibid, 89.
[167] RSFIC, 11 [65].
[168] Exhibit R1, 74.
[169] Ibid, 81 and oral evidence.
[170] Ibid, 83.
[171] Ibid, 102; 299 [41]-[46].
[172] Ibid, 116.
[173] Ibid, 302 [21].
[174] Ibid, 298 [39]-[45].
[175] Ibid, 105; 197-198.
[176] Ibid, 111-112; 200-201.
[177] Ibid, 274-284.
[178] Ibid, 274 [20]-[24].
[179] Ibid, 274 [1]; 275 [25]; 280 [43]; 281 [3]-[10].
[180] Ibid, 282 [45]-[46]
[181] Ibid, 117; 199.
[182] Ibid, 286; 292.
[183] Ibid, 288 [8].
[184] Ibid, 117.
[185] Ibid, 288-292.
[186] Ibid 126.
[187] Ibid, 301 [20].
[188] Exhibit A1, 5 [32]-[33].
[189] Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219; Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 at 191 [16].
[190] Ali v Minister for Immigration and Border Protection [2018] FCA 650, [33].
[191] DOB18 v Minister for Home Affairs [2018] FCA 1523, [35].
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