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Singh and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3959 (16 November 2023)

Last Updated: 30 November 2023

Singh and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3959 (16 November 2023)

Division: GENERAL DIVISION

File Number: 2023/6266

Re: Gurleen Singh

APPLICANT

And Minister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal: Senior Member S Burford

Date of decision: 16 November 2023

Date of written reasons: 24 November 2023

Place: Perth

The decision of the delegate of the Respondent dated 1 August 2023 to cancel the Applicant’s Class UK Subclass 820 Partner (Temporary) visa is affirmed.

.................[ Sgd].......................................................

Senior Member S Burford

CATCHWORDS

MIGRATION – decision of delegate of Minister to cancel visa – character test – Direction No 99 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – child sexual offences, reporting offences, drug offences – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – family violence – strength, nature and duration of ties to Australia – best interests of children – expectations of the Australian community – extent of impediments if returned to India – impact on victims – decision affirmed

LEGISLATION

Community Protection (Offender Reporting) Act 2004 (WA), ss 6, 9, 10, 29

Criminal Code Act Compilation Act 1913 (WA) ss 321(4), 326D

Migration Act 1958 (Cth) ss 15, 46(1)(d), 189, 196, 197C, 198, 499, 499(1) ,501(1), 501E, 501E(2), 501F, 501F(4), 500(1)(b), 501(2), 501(6), 501(6)(a), 501(6)(e), 501(6)(e)(i), 501(7), 501(7)(c), s 501(7)(d), 501CA(4), 501(2), 503

Migration Regulations 1994 (Cth) reg 2.12AA, cl 801.221(6)(c)(ii)

Restraining Orders Act 1997 (Cth) ss 10D, 10D(1)

CASES

AJL20 v Commonwealth of Australia [2020] FCA 1305

BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313

CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138

Drake v MIEA [1979] 76 FLR 409

FYBR v Minister for Home Affairs [2019] FCAFC 185

Khalil and Minister for Home Affairs [2019] FCAFC 151

Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 116

Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591

Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68

Seyfarth v Minister for Immigration and Multicultural and & Indigenous Affairs [2005] FCAFC 105; [2005] 142 FCR 580

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

SECONDARY MATERIALS

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (8 March 2021)

Minister for Citizenship, Citizenship, and Multicultural Affairs (Cth), Direction No 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (23 January 2023) paras 4(1), 5.1, 5.2, 5.2(2), 5.2(3), 8.2, 8.1(1), 8.1.1(1), 8.1.2, 8.1.1.1(1)(i), 8.1.1.1(1)(ii), 8.1(2), 8.2, 8.1.2(2)(b), 8.3, 8.3(1), 8.3(2), 8.3(3), 8.3(4), 8.4, 8.4(4), 8.5, 8.5(1), 8.5(2), 8.5(2)(a), 8.5(2)(b), 8.5(2)(c), 8.5(2)(d), 8.5(2)(e), 8.5(2)(f), 8.5(3), 8.5(4), 9, 9.1(3), 9.1.2(2), 9.2, 9.2(1)(a), 9.2(1)(b), 9.2(1)(c), 9.3, 9.3(1), 9.4

REASONS FOR DECISION


Senior Member S Burford


24 November 2023

The decision in this matter was made and provided to the parties on 16 November 2023 with a note that written reasons would be provided within a reasonable time. These are those written reasons.[1]

THE APPLICATION

  1. The Applicant seeks review of a decision of a delegate of the Respondent (the Minister) dated 1 August 2023 to cancel the Applicant’s Class UK Subclass 820 Partner (Temporary) visa (the visa) under s 501(2) of the Migration Act 1958 (Cth) (the Migration Act).
  2. The application is made pursuant to s 500(1)(b) of the Migration Act which allows applications to be made to the Administrative Appeals Tribunal (the Tribunal) for review of decisions of a delegate of the Minister made under s 501 of the Migration Act.

BACKGROUND

  1. The Applicant is a 30-year-old citizen of India. He has lived in Australia for nine years, having arrived on a Student (subclass 500) visa in March 2014 when he was 20 years old.
  2. In or around September 2014, the Applicant met Ms D, an Australian citizen, while he was working at a fast food restaurant. The couple dated for approximately nine months before marrying in May 2015 in Perth, Western Australia. They have a daughter, [Ms A] born in December 2018. The Applicant and Ms D separated in March 2020.[2]
  3. On 22 May 2015, the Applicant lodged a combined Class UK Subclass 820 Partner (Temporary) visa (Temporary Partner visa) and Partner (Class BS) (subclass 801) visa (Permanent Partner visa) application sponsored by Ms D. The Temporary Partner visa was granted on 28 July 2016.
  4. On 13 October 2017, the Applicant was convicted in the District Court of Western Australia of one count of Aggravated sexual penetration without consent and one count of Indecently deals with a Child over 13 under 16 and was sentenced to two conditional suspended imprisonment terms (two years and twelve months respectively) to be served concurrently. The victim of his offences was his 15-year-old sister-in-law. He was placed on the Australian National Child (Sex) Offender Register (ANCOR)[3] and subjected to reporting obligations[4]. On 10 June 2019, the Applicant was convicted of failing to comply with his reporting obligations and was fined $500.
  5. On 20 May 2020, the Applicant was issued a ‘Notice of intention to consider cancel visa’ (NOICC) under s 501(2) of the Migration Act on the basis that he did not satisfy the character test pursuant to s 501(6) of the Act.
  6. Responses to the NOICC, including in a Personal Circumstances Form, were provided by the Applicant to the Department of Home Affairs (Department).[5]
  7. On 12 January 2023, the Applicant was convicted again of failing to comply with his reporting obligations. He was fined $600. On 28 February 2023, the was convicted of Possess a prohibited drug (heroin) and Possess a prohibited plant. For both these offences, he was fined $800 (global).
  8. On 1 August 2023, a delegate of the Minister cancelled the Applicant’s Temporary Partner visa on character grounds (the Cancellation Decision). On 24 August 2023, the Applicant was notified of the Cancellation Decision by letter to his migration agent and by email to the Applicant.[6] The Applicant’s Permanent Partner visa application was still processing at this time and was refused as a result of the cancellation of the Temporary Partner visa.[7]
  9. On 25 August 2023, the Applicant lodged an application to the Tribunal seeking a review of the Cancellation Decision.

ISSUES

  1. The issues for determination are:
    (a) whether the Applicant passes the character test (as defined by s 501(6) of the Act); and

    (b) if he fails to pass the character test, whether, considering the circumstances of the case, the discretion to cancel his visa should be exercised.

THE HEARING AND THE EVIDENCE

  1. The hearing was held on 30 October 2023 at the Perth Registry of the Tribunal. The Applicant appeared in person and was represented by Ms Jasmin Angel from Estrin Saul Lawyers and Migration Specialists. The Respondent was represented by Mr Ashley Burgess, from Australian Government Solicitor. Both representatives appeared in person.
  2. At the hearing, the Applicant made submissions, gave evidence and was cross-examined. The Tribunal also took evidence from:

Ms Kaur and Ms D gave evidence in person. Dr Sheridan gave evidence by telephone.

  1. The following documents were marked as exhibits:
  2. In accordance with Tribunal directions, the Applicant filed a Statement of Facts, Issues and Contentions (ASFIC) on 29 September 2023. The Respondent filed a Statement of Facts, Issues and Contentions (RSFIC) on 13 October 2023. The Applicant filed a response to RSFIC on 20 October 2023 (App Reply).

LEGISLATIVE FRAMEWORK

Migration Act

  1. The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds. Under subsection 501(1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test. Under subsection 501(2), non-citizens may have their visa cancelled if the decision-maker (in this case the Tribunal) reasonably suspects that they do not pass the character test and the non-citizen does not satisfy the decision-maker that they pass the character test.
  2. Sections 501(1) and (2) of the Migration Act provide:
(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6).

(2) The Minister may cancel a visa that has been granted to a person if:

(a) the Minister reasonably suspects that the person does not pass the character test; and

(b) the person does not satisfy the Minister that the person passes the character test.

(Original emphasis.)
  1. Section 501(6) of the Migration Act provides that:
(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...

...

(e) a court in Australia or a foreign country has:

(i) convicted the person of one or more sexually based offences involving a child; or ...

(Original emphasis.)
  1. A ‘substantial criminal record’ is defined by s 501(7) of the Migration Act as follows:
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a) the person has been sentenced to death; or

(b) the person has been sentenced to imprisonment for life; or

(a) the person has been sentenced to a term of imprisonment of 12 months or more; or

(c) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or...

(Original emphasis.)

Direction No 99

  1. Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or

(b) the exercise of those powers.

  1. Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1).”
  2. On 23 January 2023, the Minister made Direction No 99: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 99) under s 499 of the Migration Act, which commenced operation on 3 March 2023.[8]
  3. An objective of Direction No 99 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[9] Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.[10]
  4. Paragraph 5.1 of Direction No 99 sets out ‘[o]bjectives’ including para 5.1(1) and (2) which provides that:
    (1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test (see Annex A for explanation) is liable for refusal of a visa or cancellation of their visa.

    (2) Specifically, under subsection 501(1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test. Under subsection 501(2), non-citizens may have their visa cancelled if the decision-maker reasonably suspects that they do not pass the character test, and the non-citizens do not satisfy the decision-maker that they do pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.

  5. Paragraph 5.2 of Direction No 99 sets out ‘[p]rinciples’ which must be taken into account by decision-makers under ss 501 and 501CA of the Migration Act. These principles ‘provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501’ to the extent they are relevant in a particular case. and are expressed as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on

non-citizens in the expectation that they are, and have been, law-abiding,

will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian Community.

(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

(5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

(6) Decision makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) [11](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 [sic] risk of causing physical harm to the Australian community.

  1. When making a decision regarding the exercise of the discretion to refuse or to cancel a visa, the Tribunal must take into account the primary and other considerations set out in Direction No 99 where relevant to the decision.[12] In doing so, the Tribunal is informed by the principles in para 5.2 of Direction No 99.[13]
  2. In making a decision under s 501(2), the primary considerations to be taken into account by the Tribunal are:
    (a) protection of the Australian community from criminal or other serious conduct;

    (b) any family violence committed by the Applicant;

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

    (d) the best interests of minor children in Australia; and

    (e) expectations of the Australian community.

  3. The ‘other considerations’ that the Tribunal must take into account, insofar as they are relevant to the matter, include (but are not limited to):[14]
(a) legal consequences of the decision;

(b) extent of impediments if removed;

(c) impact on victims; and

(d) impact on Australian business interests.

  1. Further guidance as to how a decision-maker is to apply the considerations in
    Direction No 99 can be found in para 7, which provides that:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

(2) Primary considerations should generally be given greater weight than the other considerations.

(3) One or more primary considerations may outweigh other primary considerations.

THE APPLICANT’S CONDUCT AND OFFENDING HISTORY

  1. The Applicant’s offending history is set out in the ‘Nationally Coordinated Criminal History Check Results Report’ issued by the Australian Criminal Intelligence Commission on 18 January 2023[15] and the ‘History for Court – Criminal and Traffic’ compiled by the Western Australian Police Force on 12 September 2023.[16] The Applicant did not dispute these records of his offences and the Tribunal accepts they are accurate.
  2. The Applicant’s criminal history, disclosed in the above reports is as follows:
Jurisdiction
Offence
date
Result
date
Offence
Result
Armadale Magistrates Court
22 January 2023
28 February 2023
Possess a Prohibited Drug (Heroin);
Misuse Of Drugs Act 1981; 6 (2) D
Fine: $800 (global)
Armadale Magistrates Court
22 January 2023
28 February 2023
Possess a Prohibited Plant.; Misuse of Drugs Act 1981; 7 (2) G
Fine: $800 (global)
Perth Magistrates Court
24 March 2022
12 January 2023
Failed to comply with reporting obligations: Community Protection (Offender Reporting) Act 2004; 63 (1)
Fine: $600
Perth Magistrates Court
30 April 2019
10 June 2019
Failed to comply with reporting obligations: Community Protection (Offender Reporting) Act 2004; 63 (1)
Fine: $500
Perth District Court of Western Australia
23 October 2016
13 October 2017
Aggravated Sexual Penetration with Consent; Criminal Code: Criminal Code (WA); 326 D
Conditional Suspended Imprisonment Order: 2 years Concurrent Suspended 18 months from 13 October 2017. Conditions: Supervision & Programme
Perth District Court of Western Australia
23 October 2016
13 October 2017
Indecently Deals with a Child Over 13 Under 16.; Criminal Code (WA); 321 (4)
Conditional Suspended Imprisonment Order: 2 years Concurrent Suspended 18 months from 13 October 2017. Conditions: Supervision & Programme
  1. The records of offending show that the Applicant’s convictions primarily comprise of child sexual offences, breaches of reporting obligations and drug offending.

Child sexual offending

  1. On 13 October 2017, the Applicant was convicted in the District Court of Western Australia of Indecently Deals with a Child Over 13 Under 16 and Aggravated Sexual Penetration without Consent (the child sexual offences) contrary to ss 321(4) and 326D of the Criminal Code (WA).[17]
  2. The child sexual offences occurred on 23 October 2016. The victim was the 15-year-old sister of the Applicant’s then wife, Ms D. At the time of the offences the Applicant was 23 years old. The Applicant plead guilty to the offences.[18]
  3. According to the sentencing remarks of Lonsdale DCJ, on 22 October 2016 the victim stayed the night at the home of the Applicant and his wife. She slept in a spare room. The next morning, 23 October 2023, the victim was lying in her bed wearing loose pyjama shorts and a top. According to the statement of material facts read to the Court at the sentencing hearing, the circumstances of the offences were as follows:[19]
    The [Applicant] walked into the victim's bedroom wearing only his underwear. The [Applicant] lay on the bed next to the victim. The victim asked the [Applicant] if he could drive her and her sister to the beach later that day. The [Applicant] agreed, if the victim gave him a massage. The victim declined. The [Applicant] said he wanted to give the victim a massage. Again, the victim declined. The [Applicant] persisted and said, “I'll just do it.”

    The [Applicant] massaged the victim' s shoulders. The victim tried to turn away from the [Applicant]. The [Applicant] rubbed the victim' s thigh, moving his hand high up her leg and through the pants of her pyjama shorts, and touched her vagina. The victim pushed his hand away. The [Applicant] pulled her shorts down halfway to her knees. Again, the victim pushed his hands away.

    The victim turned her back to the [Applicant]. The [Applicant] put his hands underneath her pyjama top and was feeling and grabbing her breasts with both hands. The victim pushed his hand away. The [Applicant] rubbed his hand up the victim’s thigh, rubbing up to her vagina, and inserted his finger into her vagina for a couple of seconds. The victim said to the [Applicant], “What are you doing?” The [Applicant] replied, “No, it's all good.”

    The victim got off the bed and left the bedroom, and sat in the lounge. The victim contacted her father on her mobile phone, asking him to pick her up straight away. The [Applicant] followed the victim to the couch; sat next to her and rested his hand on her thigh. The victim got up and went to her room to pack her things.

    A short time later, her father arrived and waited in the car outside. The victim went to leave, and the [Applicant] hugged the victim and grabbed her on the buttocks. The victim then left the house.

  4. As noted earlier, the Applicant plead guilty to the offences at the time and this summary of the facts was accepted by him when put to him in cross-examination before the Tribunal.[20]
  5. The Applicant was sentenced to two years imprisonment with respect to the Aggravated Sexual Penetration without Consent offence and 12 months imprisonment for the Indecently Deals with a Child Over 13 Under 16 offence. The sentences were to be served concurrently and both were conditionally suspended for 18 months and subject to supervision and programme requirements.[21] The period of suspension ended on 12 April 2019.[22]

  1. The maximum sentence in the District Court of Western Australia in relation to the Indecently Deals with a Child Over 13 Under 16 was a term of 10 years’ imprisonment.[23] The maximum penalty available in the District Court of Western Australia for Aggravated Sexual Penetration without Consent was a term of 20 years’ imprisonment.[24]
  2. As a result of the convictions, the applicant became a ‘reportable offender’.[25] He remains on the National Child Offender System (NCOS) for 15 years until 13 October 2032[26] and is recorded on the ANCOR since 13 October 2017. [27]

Breaches of reporting obligations

  1. The Applicant’s status as a ‘reportable offender’ imposed various obligations on him to report changes to his circumstances and whereabouts.[28] He is required to attend the Serious Offender Management Squad (SOMS) for the purpose of participating in Notice of Reporting Obligations (NORO) as directed by his case officers, and to report changes in his personal details within a specified time frame of those changes occurring.
  2. The purpose of this reporting is to ensure police can accurately 'Risk Assess' the suspect and take action where necessary to reduce the risk of the accused offending sexually against children.[29]
  3. The Applicant has been convicted of two breaches of his reporting obligations. Both breaches occurred after his suspended sentence period ended. He received fines for both convictions.
  4. The circumstances of the first offence were that the Applicant flew interstate to Melbourne on 18 April 2019 to participate in cultural games. He returned on 23 April 2023 and was required to report in person within seven days of his return. He only reported his return, by email, on 7 May 2019.[30] On 10 June 2019, the Applicant was convicted of Failed to comply with reporting obligations, and was fined $500.[31]
  5. The circumstances of the second offence were that on 17 March 2022, the Applicant was issued with a new Indian passport.[32] He was required to report the details of that new passport within seven days, so on or before 24 March 2022.[33] The Applicant failed to report that he had been issued a new passport.[34] The Applicant reported the new passport when he next attended SOMS to report on 26 October 2022. On 12 January 2023, the Applicant was convicted of Failed to comply with reporting obligations, and was fined $600.[35]

Drug offences

  1. On 22 January 2023, the Applicant was found to be in possession of heroin and another drug which he told the Tribunal at the hearing was ‘poppy seeds’.[36] On 28 February 2023, he was convicted of Possess a prohibited drug (heroin) and Possess a prohibited plant. He received an $800 fine for these offences.[37]
  2. The Applicant told the Tribunal that police found the heroin and poppy seeds in his car. He said a friend had given him the poppy seeds which had been sitting in his car for some time in a box under his steering wheel but that he has purchased the heroin. He said the poppy seeds were seeds you eat and that in India they make a drink of them and ‘it’s very normal in India’.[38]
  3. The nature and seriousness of the Applicant’s offending is considered further below.

DOES THE APPLICANT PASS THE CHARACTER TEST?

  1. As noted above, the character test is defined in s 501(6) of the Migration Act. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’, as defined by s 501(7).
  2. Section 501(6)(e)(i) provides that a person does not pass the character test if a court in Australia or a foreign country has “convicted the person of one or more sexually based offences involving a child”. This was the relevant provision relied on by the delegate in making the Cancellation Decision.
  3. Section 501(6) of the Migration Act also provides that a person does not pass the character test if they have a ‘substantial criminal record’ as defined by s 501(7) of the Migration Act.[39]
  4. Section 501(7)(c) of the Migration Act provides that a person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more”. The Tribunal notes that s 501(7) is concerned with the sentences imposed rather than the term of imprisonment actually served.[40]
  5. The Tribunal finds that on 13 October 2017, the Applicant was convicted by District Court of one count Aggravated sexual penetration without consent and one count Indecently deals with a Child over 13 under 16. He was sentenced to two conditional suspended imprisonment terms (2 years and 12 months respectively) to be served concurrently.
  6. In the Tribunal’s view, the Applicant’s convictions for indecently dealing with a child and aggravated sexual penetration without consent can be properly characterised as a ‘sexually based offences against a child’ for the purposes of s 501(6)(e)(i) of the Migration Act. Accordingly, the Tribunal finds that the Applicant has a substantial criminal record pursuant to s 501(6)(e) of the Migration Act.
  7. Further, as the Applicant has been sentenced to a term of imprisonment of 12 months or more the Tribunal also finds that the Applicant has a substantial criminal record pursuant to s 501(7)(c) of the Migration Act.
  8. On this basis, and having considered the Applicant’s criminal record, the Tribunal reasonably suspects that the Applicant does not pass the character test by virtue of
    s 501(6)(a) of the Migration Act.
  9. The Applicant has not satisfied the Tribunal that he passes the character test.

SHOULD THE DISCRETION TO CANCEL THE VISA BE EXERCISED?

  1. As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether, given the circumstances of the case, the discretionary power to cancel his visa under s 501(2) of the Act should be exercised taking account of the relevant primary and other considerations in Direction No 99.
  2. The Applicant does not contest that he does not pass the character test but argues that the discretionary power to cancel his visa under s 501(2) of the Migration Act should not be exercised.
  3. In summary, the Applicant submitted that he is a low risk of reoffending. He contended he is committed to maintaining a commitment to abstaining from drugs, not reoffending and being a positive role model for his daughter. It was submitted that the Applicant is engaging in rehabilitation and has been assessed to pose a low risk of reoffending. It was also contended that given the Applicant’s low risk of reoffending, he did not pose an unacceptable risk to the Australian community. The Applicant submitted that his current girlfriend and his former partner will be adversely impacted by a decision to cancel his visa and that cancellation would have a ‘profound’ impact on his young daughter whose best interests lie that his visa not be cancelled. It was further contended that the best interests of the Applicant’s daughter outweighed all other considerations and that the discretion to cancel the visa should not be exercised.[41]
  4. The Respondent accepted that some factors including the strength, nature and duration of ties and best interests of his daughter weighed in the Applicant’s favour. However, other considerations including the protection of the Australian community and the expectations of the Australian community weighed against him. Having regard to the very serious nature of his offences, as sexual offences against a child who was also his wife’s sister, it was submitted that the offending was so serious that even the countervailing considerations were insufficient for the Tribunal to depart from the Australian community’s expectation that the visa would be cancelled. It was contended that this is particularly so where the Applicant still poses a risk to the community and where the harm which may be caused were he to reoffend includes ‘physical, emotional and psychological effects of immediate and life-long nature to the victims’.[42]
  5. These submissions are considered further below.

Protection of the Australian Community

  1. The first primary consideration, paragraph 8.1(1), focuses on the protection of the Australian community. Direction No 99 requires decision-makers to 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. In this respect, the Tribunal is directed to have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[43]
  2. Paragraph 8.1(2) of Direction No 99 provides that decision-makers should also give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

Nature and seriousness of the conduct

  1. In considering the nature and seriousness of the Applicant’s criminal offending and other conduct to date, paragraph 8.1.1(1) of Direction No 99 provides that the Tribunal must have regard to:[44]
    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:
    1. violent and/or sexual crimes;
    2. crimes of a violent nature against women or children, regardless of the sentence imposed;
    3. acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

    b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

    1. 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;
    2. 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;
    3. 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));
    4. 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, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
    1. with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
    d) the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;

    e) the cumulative effect of repeated offending;

    f) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

    g) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).

    h) where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

  2. The Applicant accepted the Child Sexual Offences were serious, but contended that they were committed on 23 October 2016 and in the period since there has been no repetition of offending of that kind, noting that he had remained in the community for most of that period. The Applicant contended he is now 30 years old and that he abided by the conditions of the suspended terms of imprisonment he received and has never spent any time in custody. It was submitted that the remainder of the Applicant’s offences were minor and had only resulted in fines. The Applicant contended that he has never been charged with or convicted of a violent offence and that other than the Child Sexual Offences, his offending did not involve individual victims. The Applicant accepted that the nature of his offending was serious and would weigh in favour of cancellation. However, he contended that this consideration was outweighed by his ties to Australia and the best interests of his daughter.[45]
  3. The Respondent submitted that with respect to the Child Sexual Offences:[46]

The sentencing Judge was ‘unequivocal’ in finding that the offending was ‘a very serious violation’ causing ongoing harm;

It was submitted these offences weighed significantly in favour of cancellation.

  1. With respect to the other offences the Respondent submitted:[47]

It was submitted these offences weighed moderately in favour of cancellation.

  1. The circumstances of the Child Sexual Offences are outlined earlier in these reasons. The Tribunal accepts the Respondent’s submission that the sentencing Judge’s comments reflect her assessment of the offences as being very serious.
  2. The sentencing Judge noted that the circumstances of the offending were ‘quite serious’ having particular regard to the following factors:[48]
  3. The sentencing Judge noted to the Applicant’s credit that:
  4. Her Honour observed as a concern that the Applicant continued to minimise his offending, evidenced on a psychological report and presentence report.[54] Her Honour noted her concern that the Applicant’s insight into his offending was ‘not complete’. However, her Honour noted that he ‘was not assessed to be a high risk of re-offending’. Her Honour noted further:[55]
    ...your offending in this instance as indicated by the pre-sentence report writer, was that you were motivated by sexual arousal and opportunity coupled with an unwillingness or inability to delay sexual gratification, and that your minimisation, rationalisation and denial, such as statements that "it was just a massage" may have helped you overcome any internal inhibitions that you may have had at the time that you committed the offences.

She found the offending was ‘isolated and somewhat opportunistic’.[56]

  1. Having considered all the circumstances the sentencing Judge concluded that the offence was ‘so serious’ that the only appropriate disposition was a sentence of imprisonment.[57] In going on to consider if that sentence should be suspended, she considered that although it was a ‘marginal case’ the sentence should be suspended having regard to the following[58]:
    Firstly, you pleaded guilty at the earliest opportunity. It was a plea of guilty on the fast-track .

    Secondly, you are still a relatively young man and, I suspect, still quite immature.

    Thirdly, I consider that having regard to the recommendations of the psychologist, or rather the conclusions of the psychologist and the entire context of your life has been explained to me this morning, that you are overall a low risk of re- offending in a similar manner . You have low treatment needs and I would be concerned that a prison environment may not be the most ideal environment to encourage your rehabilitation.

    Fourthly, the offending, although persistent, was isolated to the one occasion and had elements of opportunism.

    Fifthly, I’m satisfied that there are programs which you would be able to do in the community to aid your rehabilitation, which, in my view, is absolutely essential in this case .

    Sixthly, I suspect that imprisoning you in the circumstances where you do not pose an ongoing risk or threat to the community, will further fracture relations between the victim and her sister.

  2. While the Applicant contended that the fact he was not sentenced to an immediate term of imprisonment reflected an assessment that the offending was less serious, the Tribunal considers this mischaracterises the reasons the sentencing Judge conditionally suspended the sentence. It is clear from her remarks she regarded the offences as very serious. However, it is also clear she considered the Applicant presented a low risk of reoffending and that his rehabilitation needs could be met, or even better met, in the community, causing less ongoing damage to his family.
  3. The Tribunal considers the terms of imprisonment imposed reflect the serious nature of the offences. In the Tribunal’s view, the offences were objectively very serious having regard to the factors outlined by her Honour and by reference to Direction No 99 which indicates sexual crimes are to be viewed ‘very seriously’.[59]
  4. The Applicant contended he had not been convicted of any offences of violence.[60] While the Respondent did not contend that the Applicant’s offences were violent, they did contend that significance should be placed on the aggravating factors involved in the offence including the vulnerability of the victim, her relationship with the Applicant and the breach of trust involved in offending against her.
  5. The Tribunal considers that there may be circumstances where sexual offences, including against children, involve an element of violence. The physicality of offences where a lack of consent is an element may, in particular circumstances, be characterised as violent. It is no doubt arguable that sexual penetration without consent involves a level of violence, at least for the victim’s perspective.
  6. However, in the circumstances of the Applicant’s offending, the Tribunal does not consider that whether the offences are characterised as violent or otherwise contributes to an overall assessment of their objective seriousness. Whether or not sexual penetration without consent is classified as an offence of violence does not diminish the very serious nature of that offence. It is an offence which is objectively very serious, this is particularly so where the victim is a child with whom the offender is in a position of trust.
  7. Further, the principle expressed in the direction indicates that violent and/or sexual crimes are to be “viewed very seriously”.[61] In the Tribunal’s view, in terms of the direction, offending which is either violent or sexual is to be “viewed very seriously”. It is difficult to see how the absence of violence could result in crimes being viewed as less than very serious. While paragraph 8.1.1.1(1)(ii) contains a specific direction in relation to crimes of a violent nature against women and children, the clause does not, in the Tribunal’s view, diminish the seriousness with which sexual crimes are to be viewed.
  8. Having regard to these considerations, the Tribunal considers the Applicant’s offending was very serious. The Tribunal is in no doubt the offences were very serious because they were sexual offences against a child and because of the aggravating factors relating to the commission of the offences, including the particular the position of trust the Applicant held with respect to the child.
  9. The Child Sexual Offences for which the Applicant has been convicted occurred on a single date in 2016. Since then, he has been convicted of a further four offences.
  10. With respect to the later offences concerning breaches in his reporting obligations, the circumstances of those offences were detailed earlier. As noted above, while the offences themselves were at the lower end of seriousness and attracted fines, the Applicant’s failure to abide by his reporting obligations on two separate occasions causes a concern regarding the seriousness with which he approaches those obligations. As noted above, the purpose of this reporting is to ensure police can accurately 'Risk Assess' individuals and take action where necessary to reduce the risk of the person offending sexually against children.[62] They play an important role in protecting vulnerable members of the community, its children, from harm from known offenders. As noted by the sentence Judge with respect to the 2019 reporting breach:[63]
    The Act imposes significant obligations on you, and there is significant public interest in making sure that they are complied with. You were slack.
  11. The Tribunal regards the Applicant’s failure to meet his reporting obligations does contribute to the overall assessment of the Applicant’s conduct and offending as serious.
  12. Similarly, the Drug Offences for which the Applicant was convicted in 2023 were not, on their own, serious offences. However, the Tribunal considers these offences raised concerns about the Applicant’s commitment to living a prosocial lifestyle and his capacity to do so in the longer term noting:
  13. The Applicant accepted he offended after he was warned his visa was under review for cancellation but said he was stressed after being told he was being considered for cancellation:
    SENIOR MEMBER: When you say you started taking heroin, you’d already been told by the Minister that he was considering cancelling your visa?

    APPLICANT: Yes.

    SENIOR MEMBER: So I’m trying to understand why it is that you would commit offences when you know that the government is looking at cancelling your visa?

    APPLICANT: I was just – I didn’t think straight. I was stressing so much that I don’t know what’s going to happen with my visa and that’s when I made this bad choice. That’s what I’m learning in the therapy. That even though no matter how difficult the situation is, how much stress you have in your life, you can cope with your stress and situation without using of drugs.

    SENIOR MEMBER: But you’d been told about that cancellation decision a couple of years earlier

    APPLICANT: Yes.

    SENIOR MEMBER: So what was it about that period that resulted in you taking drugs?

    APPLICANT: That time I knew that I have a big risk, but I was just coping and living day by day and then leave it in God’s hand. Whatever outcome come, God knew. So that’s how I go through for the whole time.

The Tribunal found this explanation to be unconvincing and considers that the Applicant’s conduct and offending in committing the Drug Offences while on notice his visa was being considered for cancellation contributes to the seriousness of his offending and conduct overall.

  1. There was information before the Tribunal that the Applicant had been subject to Family Violence Restraining Orders (FVROs) in for several months in 2020 for the protection of Ms D. Those are dealt with in further detail below. The Tribunal notes the Applicant was not charged with any breaches of those orders or other offences or conduct amounting to family violence. Having regard to the evidence concerning the FVROs, the Tribunal does not consider those orders contribute to the overall assessment of the Applicant’s conduct and offending under this consideration.
  2. While the Applicant has been convicted of a number of offences, in the Tribunal’s view his offending would not properly be described as ‘frequent’.[65] While the Respondent suggested within the offences themselves there was a rapid increase in the seriousness in his offending from touching to sexual penetration, the Tribunal considers that it more reflects the serious nature of those offences than an overall trend of ‘increasing seriousness’ in the offending.
  3. The Tribunal notes that the Applicant has now acknowledged his offending was serious and expressed remorse for his actions. The Tribunal will consider the Applicant’s contrition and attempts at rehabilitation further below in the context of the Applicant’s likelihood of reoffending.
  4. Having regard to all the evidence including the circumstances of the Applicant’s conduct and offending, the Tribunal finds that the Applicant has committed sexual offences against a child with whom he had a familial relationship. He has gone on to commit several breaches of his reporting obligations which arise because of the seriousness with which child sexual offences are viewed and the harm which would be caused if an offender were to reoffend. He also committed two recent drug offences. While those offences themselves were at the lower end of seriousness, the fact the Applicant has continued to commit breaches of the law, including when on notice that the cancellation of his visa was being considered contributed to the overall assessment of his conduct and offending as very serious.
  5. Overall, the Tribunal finds that the nature of the Applicant’s offending is very serious and weighs heavily in favour of cancellation of his visa.

Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

  1. The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. Paragraph 8.1.2 of Direction No 99 states, in part:[66]
(1) 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.

(2) In assessing the risk that may be 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:

  1. information and evidence on the risk of the non­citizen re-offending; and
  2. 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). ...
  1. The Applicant submitted that while the nature of the harm which would be caused if he were to commit further offences is serious, he is unlikely to reoffend and when considered cumulatively, the risk he poses to the Australian community is not unacceptable.[67]
  2. The Respondent submitted that nature of the harm which could be caused if the Applicant were to commit further Child Sexual Offences was so serious that even a low risk of reoffending was unacceptable. The Respondent accepted the Applicant presents a low risk of reoffending with respect to sexual offences, however, even a low risk is unacceptable. The Respondent contends that the Applicant’s risk of further general offending is moderate.[68]

Nature of the harm

  1. In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals, or the Australian community should the Applicant reoffend.[69]
  2. The Applicant accepted that the nature of the harm which would be caused if he committed further child sexual offences would be serious. The Respondent contended the harm caused by child sexual offending includes short and long-term physical, mental and social harm to the victim and their wider family and support network.[70]
  3. The sorts of harm which would be caused is demonstrated in the account of the harm caused to the victim of the Child Sexual Offences. The sentencing Judge noted her trust has been breached and she had been caused ongoing distress and family strain with ‘a wedge’ being driven between her and her sister.[71]
  4. The Tribunal considers that the harm which would be caused if the Applicant were to engage in further child sexual offending is very serious and includes potential physical injuries and complex psychological harm to victims and their families, social and financial costs to the community of responding to the consequences of offending.
  5. With respect to the reporting breaches the harm which could be caused includes the undermining of an important administrative and law enforcement mechanism for protecting children from known offenders in the community and the administrative costs of enforcing breaches. While such harm is less serious, it cannot be dismissed.
  6. With respect to the Drug Offences, were the Applicant to reoffend, the harm caused would include stimulation of demand for drugs in the community and the law enforcement and social costs associated with the trade in illicit drugs. Again, while such harm is less serious, it is not insignificant. However, the harm which would be caused by either the drug or reporting offending does not increase the overall seriousness of the assessment of the harm which would be caused by the Applicant’s conduct and offending.
  7. Overall, the Tribunal considers the harm which would be caused if the Applicant were to reoffend in a similar manner to be very serious.

Likelihood of the non-citizen engaging in further criminal or serious conduct

  1. In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must also consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community.[72]
  2. The Applicant contended that he presents a low risk of reoffending in a manner similar to the Child Sexual Offences having regard to:[73]
  3. It was contended that given this low risk of reoffending, minimal weight should be afforded this consideration in favour of cancelling the Applicant’s visa.
  4. The Respondent accepted the Applicant had been assessed to be a low risk of reoffending but that the existence of this risk had remained despite rehabilitation and the passage of time since the offences. The Respondent also accepted the Applicant had taken responsibility for his offences and was remorseful. However, the Respondent contended that the Applicant’s offending was opportunistic and the Tribunal should not be satisfied that the Applicant would not reoffend if the opportunity arose again having regard to:[74]
  5. The Applicant provided evidence of having completed or undertaken a rehabilitation programs or counselling including:
  6. At the time of sentencing, Lonsdale DCJ noted with concern that the Applicant continued to minimise his offending behaviour’.[77] Her Honour noted that:[78]
    That much is apparent from the psychological report. The pre-sentence report notes that you seem to have some difficulty with understanding victim empathy. And you at this time are focused on your own needs and that of your family and your wife.

    Now, your counsel, Ms Casey, submits to me that you do have insight into your offending. And whilst I hope that you are developing some insight into your offending, I'm not convinced that your insight is complete. Certainly, when you were spoken to by police you said things which – you suggested that what occurred between you and the victim was consensual and you tended to blame the victim.

  7. Her Honour noted that it was recommended the Applicant would likely benefit from an ‘intensive sex offenders treatment program’ but that in spite of his lack of insight into his offending he was not assessed to be a high risk of reoffending.[79] She later referred to him as posing an ‘average risk’ of reoffending’ and later an overall ‘low risk’ of reoffending in a similar manner.[80]
  8. Following sentencing, the Applicant was assessed in February 2018 for his suitability for the Cognitive Brief Intervention (Sex Offenders) program (CBI SO).[81] The report of that assessment, which found the Applicant to be suitable for the program, noted the Applicant ‘did not appear to regard his offences as serious, and tended to minimise and justify his actions, and stated that the victim had not stopped him at the time of his offending which he appeared to view as signalling to him that it was acceptable for him to continue.’[82] The Applicant was assessed overall to have low treatment needs but the Psychological Report for Court reportedly recommended that he would benefit from participation in a sex offender treatment program ‘to explore the reasons he committed a sexual offence against his sister-in-law and to challenge his justifications, minimisation, minimisation and elements of denial to develop a relapse prevention plan.’[83] That assessment was confirmed in October 2010 where he was assessed to have ‘low criminogenic needs’ it was also recommended that the Applicant’s ‘minimisation and justification’ be addressed in intervention with his Community Corrections Officer.[84]
  9. Due to his low risk assessment, it appears from the records and the Applicant’s evidence that he did not undertake a CBI SO program though he was continuing to be managed by a Community Corrections Officer.[85] The only treatment he undertook prior to entering detention was the community was 12 weeks counselling with Ms Joy which he undertook in 2017 prior to being sentenced for the Child Sexual Offences.[86]
  10. The most recent assessments of the Applicant’s risk of reoffending which was before the Tribunal was a report by Dr Lorraine Sheridan, Forensic Psychologist and Adjunct Associate Professor in Psychology at Curtin University, Mindstate Psychology, which was undertaken for the purposes of these proceedings. Dr Sheridan provided a psychological assessment report on the Applicant dated 18 September 2023[87] and gave evidence at the hearing.[88] Overall, Dr Sheridan assessed that the Applicant is at a low risk of reoffending which would decrease further his issues with impulsivity and decision-making strategies are addressed. She recommended this could be addressed through Cognitive Behavioural Therapy (CBT).[89]
  11. Dr Sheridan observed in her assessment the Applicant had difficulty with poor decision-making noting:[90]
    I am of the view that Mr Singh can be quite impulsive, and that he does not tend to spend sufficient time thinking about the pros and cons of things before he makes decisions. He has always worked whilst in Australia and he outlined a quite detailed work history that involved him changing roles frequently and rapidly, usually on the basis of what a friend had recommended to him.

This was a factor in the Applicant’s offending as it has led him to make poor decisions based on the advice of others. It was also a factor Dr Sheridan assessed remained an unmet need in the Applicant’s rehabilitation.

  1. Dr Sheridan testified that the Applicant was genuinely remorseful for his offending.[91] She observed in her report that the Applicant had a good level of insight into the consequences of his offending.[92] However, he ‘possesses a little insight into his own character and offending and that this insight could be improved upon’. Dr Sheridan considered it would be beneficial for the Applicant to develop ‘a more sophisticated understanding of himself and what triggered his past offending. When asked about what she meant by this at the hearing, she said the Applicant appeared to be developing an understanding of why he offended and that this was important because once he understood why he did it he could ‘work fully on not doing it again’.[93] This tends to be ‘really critical in diverting people from future offending’.[94]
  2. Dr Sheridan noted the Applicant’s clinical profile did not suggest any significant ‘psychiatric disturbance’. She noted that his scores for ‘inter-personal dominance’ indicated ‘he may be somewhat controlling in most relationships.’[95] He scored in the low-risk range of reoffending in the STATIC-99R testing directed towards assessing the risk recidivism for sex offenders.[96]
  3. Dr Sheridan noted that the Applicant reported that his use of heroin was to reduce negative thought patterns and shame he felt in relation to the sexual offending.[97] While Dr Sheridan found these to be ‘detailed and plausible’ explanations, the Tribunal notes they appeared inconsistent with evidence given orally to the Tribunal where the Applicant indicated he took heroin to deal with the stress arising from the cancellation proceedings.[98]
  4. In conclusion Dr Sheridan noted that:[99]
    Whilst in Australia Mr Singh has seen long periods of functional living, during which he has worked and overcome some adversity and has formed good relationships. I am of the opinion that the remorse he expresses in relation to his sexual offending is genuine and that he has matured at an emotional level and is motivated to avoid future offending. The sexual offending was significant and involved a very serious breach of trust. Mr Singh has not reoffended sexually and the risk assessment tool I employed indicates that he is not very likely to do so. His low risk of reoffending would decrease further if he engages in therapy that directly explores and addresses his decision-making strategies. I note that Mr Singh’s previous therapist was a counsellor as opposed to a psychologist, and that she was helpful and provided Mr Singh with strategies around relaxation that he employed. I would suggest that his next therapist should be a psychologist with expertise in Cognitive Behavioural Therapy or similar who could work with Mr Singh on challenging some of his beliefs with a view to modifying aspects of his behaviour.
  5. The Tribunal accepts Dr Sheridan’s assessment that the Applicant is a low risk of further child sexual offending. This is consistent with the assessment at the time of his sentencing.[100] The Respondent submitted that even a low risk was a risk and that such a risk was unacceptable given the nature of the offences. Dr Sheridan noted there was really no such thing as no risk but that the Applicant’s risk could be further lowered by treatment including CBT. The Applicant has since enrolled in an online CBT course and has attended several session of this while in detention. This course is not complete and as such its effectiveness is not known. Dr Sheridan noted that ‘if he was successful at this [CBT] and the therapist gave a good report that he’s engaged well and showed change’ then he would move to a ‘very low risk’.[101] As the course is not complete, the Tribunal does not consider it can place reliance on a successful course completion to find the Applicant presents a ’very low risk’ at the time of its decision.
  6. The Tribunal places weight in the Applicant’s favour on the fact he spent a significant period in the community without reoffending in a similar way which supports the low risk assessment with respect to the Child Sexual Offences. However, the Tribunal understands Dr Sheridan’s assessment to have identified ongoing issues including decision-making and insight which suggest the risk, though low, is not non-existent or very low. The Tribunal considers that given the nature of the offences, a low risk cannot be dismissed.
  7. The Tribunal also notes Dr Sheridan expressed some concern over information put to her in cross-examination that in the context of the FVRO application, the Applicant’s then wife had claimed he had threatened to break her jaw, noting ‘that’s not good’ but that she was unable to determine the degree to which it impacted her risk assessment on short notice.[102] She said there was no way it would decrease the assessment of risk but she was unable to say if it would increase the risk of offending or whether it would identify any additional treatment needs.[103] She said she did not know if she could stand by the assessment of ‘low risk’ in those circumstances, noting as well that those threats were not made known to her previously.[104] She later noted that the risk it would probably remain a ‘low’ risk for the sexual offending but that for general offending it would be ‘low to say low moderate-ish’.[105] She testified that if the Applicant were involved in another relationship breakdown, the behaviour which lead to the FVRO would likely happen again, though this is something CBT therapy would also potentially address.[106]
  8. Further, the fact that the Applicant has reoffended with the breaches of reporting obligations and the Drug Offences in the Tribunal’s view demonstrates there is an ongoing likelihood of the Applicant reoffending, including with respect to his obligations as a reportable offender and with respect to illicit drug use. The Tribunal notes the likelihood of general reoffending was not addressed in Dr Sheridan’s report. Her evidence suggested the recommended CBT therapy may address the risks of reoffending more generally as insight into the reasons for offending was applicable to those offences as well.[107] In testimony, she observed that impulsivity and poor attention might be associated with the Applicant’s reporting offences and with his drug offences, though she noted he claimed the drug use was a response to shame for the 2017 offences.[108]As noted above, before the Tribunal she assessed his risk of general offending to be ‘low to moderate-ish’.
  9. When asked by the Tribunal what the explanation for that later offending might be when the Applicant was on notice his visa may be cancelled she noted:[109]
    I’m of the view that it’s the mixture of a quite dominant personality, he’s quite used to things going reasonably okay for him a lot of the time, and this impulsivity, and with that underlying shame, which a lot of the dominance and the impulsivity was I suspect, you know, not only within his personality anyway, but in response to that underlying shame, just – yes, I’m just going to do it; I’m not just going to do it, I’m just – I’m going to do it. So just this absolutely failure to think – there’s that failure to accept that the consequences were there, and this risk‑taking as well.

She noted that the instances of drug taking were consistent with a lack of impulse control and that by 30 years old, you would expect to see an improvement in impulse control.[110]

  1. Noting Dr Sheridan’s comments and the varying reasons the Applicant provided for having engaged in illicit drug use, the Tribunal considers the likelihood of further general offending, including drug related offending, to be in the low to moderate range.
  2. The Tribunal notes the Applicant also provided a statement from Ms Lorna Joy (Registered Psychologist).[111] She says she provided counselling to the Applicant and a report in 2017 which indicated he was aware of the damage he had done and was remorseful. The Applicant indicated in cross-examination that he had done 12 sessions of counselling prior to sentencing, for about 12 weeks from February 2017.[112] She notes he ‘presents as a very honest and law-abiding person’ and requests that his visa not be cancelled as this would ‘affect his family detrimentally’. She indicates she believes he deserves a chance. Ms Joy’s statement was prepared some time ago and does not deal with his additional offences. It is quite brief and does not detail the nature of the counselling which was provided or the basis for the assessment of the outcomes of that counselling. As such, the Tribunal places greater weight on the report of Dr Sheridan, which was more comprehensive and in respect of which she answered questions and provided further details at the hearing.
  3. The Tribunal has considered the information regarding the Applicant’s efforts at rehabilitation and available assessments of his risk of reoffending. The Tribunal found the Applicant’s remorse and his commitment to changing his behaviour to be genuine. He has commenced a CBT program following Dr Sheridan’s recommendation and while it would have been open to him to seek assistance with rehabilitation during the seven years that elapsed since the offending, noting his evidence it was not something he thought about until raised by Dr Sheridan,[113] it is to his credit that he has done so now albeit the outcomes of that therapy if completed are not able to be assessed at this point. He indicated he intends to see a psychologist near his home if released.[114] Before the Tribunal the Applicant accepted responsibility for his offending, including making admissions regarding claims made by Ms D in the context of the FVRO application. This is also to his credit. He claimed he had not taken drugs in detention, where he says they are available, however the Tribunal does not place significant weight on his claim of remaining drug free in the controlled environment of detention as evidence of his capacity to do so in the community.
  4. The Applicant has made an effort recently to undertake rehabilitation, accepting that he has treatment needs. However, other than attending counselling for a period in 2017 with Ms Joy, the SMART Recovery program appears to be the only formal rehabilitation he has undertaken. That he did not see the value in doing so prior to reoffending is unfortunate and in the Tribunal’s view demonstrated the insufficiency of insight noted in Dr Sheridan’s report. Further, while his recent efforts to undertake rehabilitation are in his favour, the impact of those efforts is as yet unknown.
  5. The Applicant has identified a range of prosocial supports which would provide a protective factor against reoffending including the support of his immediate family members and friends, his guarantee of employment and Sikh faith. With regard to the prosocial support offered by his family, Dr Sheridan notes:[115]
    From what I can gather, Mr Singh’s partner and his former wife are a good influence on him. Both appear to be sensible and supportive and forgiving. Mr Singh said that he told his current partner about his offending from the start and he seems to be continually surprised that she stays with and supports him. He said that he realises that everyone has limits and that he must continue along a good and functional pathway in order to repay her trust.
  6. A number of family and community members provided statements of support detailing their belief that the Applicant has the capacity to change his behaviour, not reoffend and make a positive contribution to the community.[116] The Tribunal acknowledges the Applicant has strong prosocial supports in Australia and that Ms Kaur in particular is committed to ensuring the Applicant does not reoffend.
  7. The Respondent submitted, and the Tribunal accepts, that these supports appear to have been present at the time of his offending, including his most recent drug offending, but were insufficient to prevent that offending. The exception is Ms Kaur who was only present in the Applicant’s life for the more recent of his offences. As such, the Tribunal considers the Applicant’s social supports could not be said to provide a guarantee against further offending. In addition, the threat of immigration consequences was not sufficient to prevent the second reporting failure or the Drug Offences. This is of obvious concern in the context of a claimed commitment to not reoffending and maintaining a prosocial life. However, the Tribunal accepts that the salutary effect of the Applicant’s detention is likely to have crystallised the potential immigration consequences of further offending and may act as an additional protective factor against reoffending.
  8. Having considered all evidence of the Applicant’s circumstances, the Tribunal considers the Applicant’s likelihood of reoffending with respect to child sexual offending to be low. Given his recent offending while on notice of the cancellation consideration, the Tribunal considers his risk of general offending to be low to moderate. Given the very significant risk of harm posed by child sexual offences, the Tribunal regards that even a low risk of reoffending is unacceptable in the Applicant’s case and finds this consideration weighs strongly in favour of cancellation.

Conclusion on the protection of the Australian community

  1. Overall, having regard to the nature and seriousness of the Applicant’s offending and conduct, and to the risk to the Australian community should the Applicant commit further offences or other serious conduct, the Tribunal finds that this primary consideration weighs very strongly in favour of cancelling the Applicant’s visa.

Family violence committed by the non-citizen

  1. Paragraph 8.2 of Direction No 99 provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to cancel the Applicant’s visa.
  2. Several factors must be taken into account when considering the seriousness of family violence, including frequency of the conduct, cumulative effect of repeated acts, rehabilitation achieved, and reoffending after formal warnings about the consequences of further acts. With respect to rehabilitation, the Tribunal is to consider:
(c) rehabilitation achieved at time of decision since the person's last known act of family violence, including:
  1. 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...

  1. Paragraph 4(1) of Direction 99 relevantly defines family violence as follows:

family violence means 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. Examples of behaviour that may constitute family violence include:

a) an assault; or

b) a sexual assault or other sexually abusive behaviour; or

c) stalking; or

d) repeated derogatory taunts; or

e) intentionally damaging or destroying property;

...

(Original emphasis)

  1. Member of a person’s family is defined in para 4(1) of Direction 99 as follows:
    member of person’s family, for the purpose of the definition of the definition of family violence, includes a person who has, or has had, an intimate personal relationship with the relevant person.

(Original emphasis)

  1. There was information before the Tribunal that the Applicant’s ex-wife, Ms D was granted an interim Family Violence Restraining Order (FVRO) against the Applicant on 5 May 2020.[117] Two copies of the interim order were included in the materials. The materials also included a copy of the order cancelling a further FVRO which was made on 5 June 2020.[118]
  2. The Applicant contended that the issuing of the further order in June 2020 indicated that the Applicant did not object to the interim order made in May 2020. The Applicant contended that as there was no contested hearing for an interim order, this did not constitute a finding that the family violence occurred. It was further submitted that the FVRO was cancelled at Ms D’s request in September 2020 and that her statement explains this was because she knew she didn’t need one as the Applicant did not pose a threat to her or her daughter. It was submitted the Applicant did not breach the FVRO and had no charges or convictions relating to family violence. The Applicant’s declaration stated that he did not commit any act of family violence.[119] It was submitted that in such circumstances, no weight should be afforded to this consideration in favour of cancelling the Applicant’s visa.[120]
  3. The Respondent submitted that the existence of the interim FVRO issued on 5 May 2020 against the Applicant, for the protection of Ms D and the issuing of a final order on 5 June 2020 (cancelled on 22 September 2020) was evidence of family violence committed by the Applicant.[121]
  4. The material included an affidavit from Ms D dated 4 May 2020 which appeared to have been made to support the application for a FVRO. In that affidavit Ms D stated:[122]
    For the past few weeks of separation Gurleen Singh has been threatening me saying he will break my jaw and calling me names like “bitch and slut” and being disrespectful to my family in front of me.

    On the 3rd of May around 8pm he threw my phone out of my hand while I was on the phone to my sister (Ms D’s sister). After this incident I had to call the police as it is getting out of hand and I am begging not to feel comfortable at home.

    It effected me emotionally and physically as he is threatening me and calling me names. I feel very uncomfortable in my home.

  5. The Respondent contended that the Restraining Orders Act 1997 (Cth), s 10D provides:[123]
(1) A court may make an FVRO if it is satisfied that —
(a) the respondent has committed family violence against a person seeking to be protected and the respondent is likely again to commit family violence against that person in the future; or

(b) a person seeking to be protected, or a person who has applied for the order on behalf of that person, has reasonable grounds to apprehend that the respondent will commit family violence against the person seeking to be protected.

(2) If the court is satisfied in accordance with subsection (1), the court must make the order unless there are special circumstances that would make the order inappropriate.

  1. It was contended that the Court making the restraining order was required to have been satisfied of the matters in s 10D(1), regardless of whether the order was interim or final in nature. On this basis, the Respondent contended that the FVRO is ‘an independent and authoritative source indicating that the Applicant is, or has been, involved in the perpetration of family violence’ and that Ms D felt threatened and fearful at the time, such that she sought the assistance of the police, and the imposition of an FVRO.
  2. However, the Respondent conceded that the incident appeared to have been isolated and there was no increasing trend of seriousness and that Ms D maintained she sought the order as she was angry and upset, and that the incident was no more than an argument. The Respondent notes that Ms D states in her recent declaration that she was being ‘young and dramatic’ and ‘soon after’ she cancelled the restraining order. Ms D indicated in later statements that the restraining order arose from the Applicant trying to grab a remote from her hand.[124]
  3. In light of the lack of clarity, the Respondent conceded only low weight should be afforded the consideration.
  4. The Applicant confirmed in evidence before the Tribunal that he recalled FVROs being in place but that he did not object to the FVRO being made. He confirmed he did not appear in Court regarding the FVRO. The final order was not before the Tribunal, though the Applicant and Ms D’s evidence was consistent with one having been made. This is also consistent with the document confirming cancellation of an order made on 5 June 2020 and cancelled on 20 September 2020.
  5. Ms D’s evidence on the reasons for the FVRO were somewhat inconsistent. She initially suggested she couldn’t remember what she had told the Court when the order was made but when the Tribunal indicated it had some difficulty accepting she would not recall what she had said about a matter of this significance only a few years prior and under oath she said that she didn’t feel safe because she wanted the Applicant to move out of the house and she felt ‘ganged up on’ including from his mother. She felt like she couldn’t get him out of the house otherwise. She said it was true that ‘back then’ she didn’t feel safe. The Tribunal considered that evidence to be genuine.
  6. The allegations contained in the affidavit supporting the FVRO application were put to the Applicant in cross-examination.[125] The Applicant accepted he had engaged in the alleged behaviour including threatening to break Ms D’s jaw, an allegation which Dr Sheridan observed was ‘not good’.[126]
  7. While the Tribunal accepts Ms D’s evidence that on reflection she didn’t need the order, it is satisfied that at the time it was sought she felt powerless to separate from the Applicant and that his behaviour made her fearful. This is consistent with later evidence from Dr Sheridan that the Applicant displayed traits in testing consistent with being controlling in relationships.[127] It is also consistent with the evidence she gave in her affidavit at the time, the contents of which the Applicant accepted (with the exception of the cyber-stalking allegation which he claimed was as a result of him and his wife sharing locations on their phones).
  8. The Tribunal accepts the Respondent’s contention that regardless of whether the Applicant opposed the order, the Court would have to be satisfied the Applicant had engaged in family violence or that Ms D had a reasonable apprehension that he would commit family violence against her in order to make the FVRO which was in place until September 2020. The Tribunal notes in this regard Direction No 99 defined family violence to include ‘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’.
  9. The Tribunal is satisfied the existence of the FVRO in place until September 2020 and the Applicant’s admissions to the conduct on which the application for the FVRO was based demonstrates the presence of conduct on the part of the Applicant which would fit the definition of family violence. However, given the circumstances as described by both the Applicant and Ms D, the Tribunal accepts the events occurred in the context of relationship breakdown and that the conduct was of a low level of seriousness for conduct of this type.
  10. There was no other evidence of conduct or offending which might be characterised as family violence. The Tribunal did not accept the Respondent’s contention that there was any evidence the Applicant had breached the FVRO (including by obtaining the supportive statement from Ms D in June 2020), noting the contents of the FVRO from June 2020 were not before the Tribunal.
  11. The Tribunal notes there is no evidence the Applicant has undertaken rehabilitation addressing family violence. However, he has commenced a CBT course online and Dr Sheridan’s evidence was that CBT would assist with factors contributing to such behaviour. The Tribunal notes the CBT program being undertaken by the Applicant is not yet complete and its impact on the Applicant has not yet been assessed.
  12. Having regard to all the circumstances this consideration weighs in favour of cancellation of the Applicant’s visa. However, the Tribunal affords the consideration only slight weight in the Applicant’s case.

The strength, nature and duration of ties to Australia

  1. Paragraph 8.3 of Direction No 99 states that decision-makers must consider the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, permanent residents or people who have a right to remain in Australia indefinitely, when making a decision.
  2. Relevantly, para 8.3 of Direction 99 provides states:
(2) In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.

(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.

(4) Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:

a) the length of time the non-citizen has resided in the Australian community, noting that:
  1. considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
  2. more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
  3. less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
  1. The Applicant submitted that the Applicant’s ties to Australia weigh against cancelling the visa having regard to:
  2. The Respondent accept that strong weight must be given to the Applicant’s relationship with Ms A and that Ms D will also be impacted if the visa is cancelled. The Respondent submitted that it is significant that Ms Kaur is not an Australian citizen or Permanent Resident, meaning she does not fall within para 8.3(1)-(3) of Direction No 99. As her own ability to remain in Australia is uncertain the impact of the decision on Ms Kaur should be given little to no weight in the Applicant’s favour. The Respondent accepted that the Applicant has worked while in Australia, is a member of the Sikh community and has extended family in Australia which while in his favour should be afforded low weight having regard to the following:[134]

The Respondent contended that the consideration should be given moderate weight overall.

  1. The Applicant is now 30 years of age, having arrived in Australia when he was
    20 years of age. The Tribunal finds that he arrived as a young adult and has spent 10 years in Australia.[135] Most of that time has been spent living and working in the community.[136] His most serious offending, the Child Sexual Offences, occurred two years after arriving in Australia.
  2. The Applicant submitted that he has spent the majority of his adult life in Australia and that he has spent his time in Australia contributing positively to the Australian community by being employed and through his community connections. The Tribunal accepts this is the case, however, the Tribunal considers that less weight is placed on his time spent positively in the community having regard to the fact he was not an ‘ordinarily resident’ in Australia during his formative years and began offending relatively soon after arriving in Australia.[137]
  3. There was strong third-party support for the Applicant from members of the community in the form of character references from family, friends, employers and members of the Sikh community.[138] In addition to Ms A, Ms D and Ms Kaur (noting she is not a permanent resident or citizen), the Applicant identified he has a cousin living in Melbourne, Mr S.[139] He has a wife and two children. The Applicant indicated that was all his family in Australia, however, he also submitted a statement from a Mr Joobir Singh who states he is the Applicant’s uncle.[140] The Tribunal infers his uncle was in Australia at the time the statement was made, though his visa status is unclear (as his address appears to be Hoshiarpur in India). The Tribunal accepts the Applicant has several family members in Australia through whom he has ties to the community and who will be negatively impacted by the cancellation of his visa.
  4. His references and supporting statements speak to his good character, remorse, work ethic, commitment to his family and to his Sikh religion and the community aspects of his practice as a Sikh. For example, Mr Amandeep Singh’s statement speaks to the Applicant’s charitable activities as a Sikh, providing food and clothes for the needy and under privileged and participating in the Sikh games in 2014.[141] The Tribunal accepts the Applicant has made a positive contribution to the community in Australia through his work, religious and community interactions and that he has ties to Australia through his friends.
  5. Some statements note the negative impact the cancellation of the Applicant’s visa would have on his friends. For example, Mr Guriqbal Singh, a permanent resident, notes that he will be affected mentally and emotionally as the Applicant is one of his few friends in Australia and ‘more like family’ to him.[142] Similarly, Harrinder Singh notes they will be negatively impacted if the Applicant leaves Australia as they share a ‘good bond’ and the Applicant is ‘kind and funny’.[143] His employer, Amandeep Singh notes the Applicant’s remorse and commitment to his daughter, he also states that if the Applicant leaves Australia he will lose a ‘good friend, good employee’.[144] His wife provided a statement in similar terms.[145] The Tribunal accepts his friends and family members will suffer emotionally from the loss of his support and social interactions with the Applicant if his visa is cancelled.
  6. The Tribunal accepts the Applicant is in a longstanding relationship with his ex-wife, Ms D, and has one young child, Ms A, both of whom are Australian citizens.[146] The Applicant submitted cancellation of his visa would result in separation from his daughter which would cause emotional, psychological and financial suffering to both Ms A and Ms D. As discussed further below, the Tribunal accepts that the Applicant’s removal would cause significant hardship to his immediate family members. In particular, as discussed further below, the Tribunal accepts that separation from the Applicant would cause significant hardship to Ms A and result in the loss of an opportunity to enjoy a close personal relationship with her father. The Tribunal also accepts that while the Applicant may be able to provide financial assistance to Ms A and Ms D from India his capacity to do so may be limited and would be contingent on the nature of his employment there. The Tribunal places strong weight against cancellation on the Applicant’s ties to Ms A in this regard.[147] The Tribunal also considers the impact on Ms D weighs against cancellation though less so than with respect to Ms A.[148]
  7. With respect to the Applicant’s girlfriend, Ms Kaur, the Tribunal agrees with the submission of the Respondent that, as she is not a non-citizen or permanent resident, the impact of the decision on her should be treated differently and ultimately must be afforded less weight. The Tribunal accepts Ms Kaur is currently a part of the Australian community and that she wishes to obtain permanent residency. She wants to remain here and is distressed at the prospect of leaving.[149] The option of remaining would still be open to her should the Applicant’s visa be cancelled as her own visa status is not linked to his. The Tribunal accepts that this would cause her some distress and difficulty as it may mean a period of separation from the Applicant. The Tribunal also accepts it may result in Ms Kaur being forced to make a choice between pursuing her relationship with the Applicant or her permanent future in Australia. That is no doubt a very difficult situation for Ms Kaur. However, she is also an Indian citizen and her home is in the same area as the Applicant’s. She would have an option of returning with him and establishing a life in her home country if the Applicant’s visa is cancelled.
  8. The Tribunal acknowledges that Ms Kaur is making a positive contribution to the Australian community through work and that she is providing emotional and practical support to Ms A and Ms D. These would be impacted if a decision to cancel the Applicant’s visa led her to return to India. The Tribunal places some weight on the Applicant’s ties to the community through Ms Kaur against cancellation of the visa, but in light of Ms Kaur’s temporary status in the community, considers only limited weight should be afforded to those ties.
  9. The Tribunal finds that the Applicant has a strong connection to Australia through his Australian citizen child and the Tribunal accepts that cancellation would have a significant impact on her. The Tribunal accepts that the Ms D has suffered financial and emotional stress as a result of the Applicant being in detention and that these financial and emotional pressures would continue if the Applicant is removed. The Tribunal also accepts his friends and members of the Sikh community in Australia would be negatively impacted by his removal.
  10. The Tribunal places weight on the fact that the Applicant has been in Australia for an extended period of time and has personal and professional ties to Australia, including through his Australian citizen daughter. Overall, this consideration weighs moderately in favour of not cancelling the Applicant’s visa.

Best interests of minor children in Australia affected by the decision

  1. Paragraph 8.4 of Direction No 99 provides, in part:
(1) Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.

(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.

(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

  1. Paragraph 8.4(4) of Direction No 99 continues to outline the factors that a
    decision-maker must consider when determining the best interests of a child affected by the decision:
(4) In considering the best interests of the child, the following factors must be considered where relevant:
a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;

e) whether there are other persons who already fulfil a parental role in relation to the child;

f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;

h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

  1. The Applicant has identified one child in Australia who is impacted by the decision, his daughter with Ms D, Ms A, who is four years old. [150] The Applicant did not identify any other children as being impacted by the decision in the context of this consideration.
  2. With respect to Ms A’s best interests and the weight to be afforded to those interests, the Applicant contended that:[151]
  3. The Applicant contended that Ms A’s best interest could only met by the visa not being cancelled and this outweighs all other considerations.[154]
  4. The Respondent accepted that the Applicant has a strong relationship with Ms A and has provided physical, emotional and financial support to her. The Respondent also accepted that he plays a positive role in Ms A’s life, and that she will be negatively impacted if the visa is cancelled. However, the Respondent contended that Ms D currently fulfils the parental role for the Ms A and the Applicant would be able to continue to provide financial support from India and maintain contact with Ms A through virtual means and support her emotionally in that way. The Respondent accepted Ms A’s best interest was that the visa not be cancelled and that the consideration weighs significantly in favour of not cancelling the visa but that it did not outweigh the primary considerations in favour of cancellation.[155]
  5. The Tribunal notes that Ms A’s mother, Ms D, provided several statements and gave evidence before the Tribunal.
  6. The relationship between the Applicant and Ms A is a parental one. As noted above, she was born while the Applicant and Ms D were married. The Applicant testified that he has a strong bond with his daughter and after he and Ms D separated, he remained involved in co-parenting her, spending every second weekend with her (later together with his current partner, Ms Kaur). In detention he has maintained contact with Ms A through video calls and mail.[156] There was evidence that he has provided child support to Ms A when he was in the community and working.[157]
  7. While the views of Ms A were not expressed in written material before the Tribunal, the material and the evidence of her parents and Ms Kaur demonstrated that she is clearly close to the Applicant. The Tribunal accepts she loves her father and wants him to remain in Australia.
  8. Ms A is currently living with Ms D and her infant daughter from a subsequent relationship (Ms A’s half sibling). They live in a home with the younger child’s father, though Ms D testified that relationship had ended and that would cease living together when arrangements to move could be made.[158] Ms Kaur is providing some assistance with child care.[159] Ms D testified she receives limited assistance from her family members as her mum and sister live further away and her father is caring for his father.[160] Ms A attends school five days a fortnight and otherwise attends daycare with her sister.[161]
  9. The evidence was that if the Applicant is removed from Australia to India, Ms A will remain in Australia with her mother. Ms D testified that she is studying to become a nurse and she would not be prepared to relocate to India.[162] The Tribunal accepts she would not choose to relocate to India and that any decision to do so would cause her significant hardship. She also testified that the recent lack of support with Ms A’s care due to the Applicant being in detention has caused her to defer the practical component of her nursing studies.
  10. Ms D and Ms Kaur testified that Ms A has shown signs that her separation from the Applicant is having a negative impact on her including not eating properly and being ‘under average’ at school.[163] Ms D is concerned that if the Applicant is removed, she will continue to deteriorate. Given Ms A’s young age and the fact this is her first year in formal schooling (on a part time basis), the Tribunal considered there was insufficient information to conclude her educational attainment against peers is attributable to separation from the Applicant since he had been detained or to determine whether those issues would remain in the longer term. There was, for example, no evidence from her school, teachers or psychological evidence as the reasons or level of her under-achievement. However, the Tribunal does accept Ms A is suffering emotional stress from the separation from her father and that this may impact her performance at school as well as her general well-being.
  11. The Tribunal also notes the evidence of Mr Kaur which established she also has a bond with Ms A, loves her and wants to be involved in supporting the Applicant to care for her. The Tribunal accepts that if the Applicant is removed to India, Ms Kaur’s contact with Ms A would be significantly reduced, even if Ms Kaur remains in Australia (which she indicated she would likely not). The Tribunal considers this would be a detriment to Ms A as she would lose ongoing contact and support from Ms Kaur who has, and continues to form part of her (small) network of carers.
  12. There was evidence in the context of the 2023 Drug Offences that the Applicant had taken drugs at home on weekends when he had custody of Ms A. He told the Tribunal that he only did so when Ms Kaur was present to watch Ms A. Ms Kaur confirmed she was aware of this. While the Tribunal does not doubt Ms Kaur’s efforts to care for Ms A and to protect her from exposure to the Applicant’s drug use, the Tribunal considers his decision to take drugs while his daughter was present in the house and while he was exercising parental responsibility for her reflects poorly on his priorities and his parenting skills. As noted above, the Tribunal considers there remains a risk the Applicant would engage in drug use in the future and accordingly, based on his admitted past behaviour, there remains a risk he would place Ms A in a position where she would be exposed to activity which could be both confusing and damaging to her. This undermines the Tribunal’s confidence in the Applicant’s commitment to being a positive role model for Ms A and in his ability to place her interests at the centre of his behaviour and decision making. The Tribunal considers this tempers the weight to be afforded to this consideration in the Applicant’s case.
  13. However, the Tribunal accepts that the Applicant is committed to providing for Ms A and supporting her and Ms D. The Tribunal accepts that he wants to be a positive influence in her life. The Tribunal accepts his commitment to Ms A is genuine and that if he is permitted to remain, he would work to have a supportive parental relationship with her.
  14. The Tribunal notes that Ms A is still very young and there are a significant number of years before she turns 18, during which time the Applicant could make a positive contribution to her life, provided he maintains his commitment not to reoffend and to abstain from drug use. The Tribunal accepts if he does so, Ms A would benefit significantly from the Applicant’s parental support during this period.
  15. There is no evidence that the Applicant’s prior conduct has had a negative impact on Ms A, she has not suffered any physical or emotional trauma arising from the Applicant’s conduct beyond the impact of separation caused by his offending and noting the fact he admitted to consuming drugs while she was in his care. Were the Applicant to use drugs again, as he admitted to having done in Australia and India, the negative impact on her would likely be detrimental. The Tribunal notes the Applicant has committed to avoiding this in the future. As noted above, the Tribunal has found there is a low to moderate risk of general reoffending by the Applicant.
  16. The Tribunal acknowledges that during the Applicant’s detention, he has maintained contact with Ms A, in part, through electronic means. The Tribunal considers he would be able to maintain such contact if he returned to India, however, the Tribunal accepts such contact is a poor substitute for personal parental contact, particularly given Ms A’s young age and that contact merely by this means will detrimentally impact the relationship between Ms A and her father.
  17. The Tribunal accepts that if the Applicant were to remain in Australia, he would be involved in Ms A’s life co-parenting with Ms D. The Tribunal notes evidence that Ms A also has the occasional support of extended family members, including her siblings and the Applicant’s maternal grandparents and aunt, albeit Ms D testified that support was not equal to that which the Applicant and Ms Kaur would be able to provide. Further, as noted above, the Tribunal accepts the Applicant may be constrained in his ability to provide financial support to Ms A and Ms D from India which will place a further financial burden on Ms D and case Ms A hardship.
  18. While the Applicant’s recent drug use causes a concern about the Applicant’s capacity to make good on his desire to be a positive role model and active parent to Ms A in the future, the Tribunal accepts he is committed to doing so.
  19. The Tribunal considers that the best interests of Ms A weighs very strongly in favour of the visa not being cancelled.

Expectations of the Australian Community

  1. The fifth primary consideration requires the Tribunal to weigh the expectations of the Australia community. Paragraph 8.5 of Direction No 99 states:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

(a) acts of family violence; or

(b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

(e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

(f) worker exploitation.

(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.

(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.

  1. The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community.
  2. Paragraph 8.5(1) of Direction No 99 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that 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.
  3. Paragraph 8.5(2) directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
  4. Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR (FC)), which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Rather, the expectations of the community that decision-makers are required to consider are those set out in the Minister’s directions.[164]
  5. The Tribunal must give effect to the ‘norm’, stipulated in para 8.5(1) of Direction No 99, that the Australian community expects non-citizens to obey Australian laws whilst in Australia. This will, in most cases, weigh against in favour of an Applicant not holding or continuing to hold a visa if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.[165]
  6. The majority in FYBR (FC)[166] agreed that it is not for a decision-maker to make his or her own assessment of the community expectations and to give that assessment weight as a primary consideration, but rather a decision-maker is to identify the government’s view regarding community expectations, as articulated in the relevant direction, and to have due regard to that view. That view will be taken into account in considering the particular circumstances of the case and ultimately in determining the exercise of the decision-maker’s discretion, taking into account all relevant primary and other considerations.
  7. The Direction notes that the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of particular kinds, none of which are relevant to the Applicant’s circumstances. The paragraph directs that, in particular, the Australian community expects that the Australian Government should cancel a non-citizen’s visa if they raise serious character concerns through specific conduct listed in sub-paras 8.5(2)(a)–(f). Those particularised types of harm generally reflect the types of conduct identified in para 8.1.1 as conduct which is considered ‘very seriously’ or ‘serious’.
  8. Paragraph 8.5(3) of Direction No 99 further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. In doing so, para 8.5(3) arguably further qualifies the ‘norm’ expressed in para 8.5(1), which refers to the ‘unacceptable risk’ of conduct being engaged in. This makes it clear that a ‘measureable [sic] risk’ of physical harm to the community is not required for the community expectation that the non-citizen not hold a visa to be engaged, where serious character concerns are raised through the persons conduct or offending.
  9. The Applicant’s offending can be properly characterised as falling within those categories identified in sub-paras 8.5(2). He has breached this expectation by not obeying Australian laws. He has committed serious crimes against a child.[167] Consequently, the expectation of the Australian community would be that the Applicant’s visa would be cancelled.[168]
  10. Paragraph 8.5(3) of Direction No 99 further confirms that the Australian community’s expectations are what the Government deems them to be, by effectively telling
    decision-makers that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. The Tribunal has found above that the Applicant poses a low risk of reoffending, particularly with respect to child sex offences. However, even if the Tribunal had found he was a minimal risk, the community’s expectations as stated would apply, given the serious nature of those offences.
  11. Further, paragraph 8.5(4) of Direction No 99 tells decision-makers that this consideration is about the expectations of the Australian community as a whole. As noted above, it directs decision-makers to proceed based on the Government’s articulated views without assessing the community’s expectations in the particular case.
  12. However, it remains for the Tribunal to determine the appropriate weight to be given to this consideration. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other considerations.
  13. The Applicant accepted that the consideration must weigh in favour of cancelling his visa. However, it was contended that minimal weight should be afforded to this consideration having regard to other considerations, in particular the best interests of Ms A.[169] The Tribunal accepts the Applicant’s ongoing relationship with Ms A somewhat tempers the weight afforded to community expectations.
  14. The Respondent contended that the Applicant has resided in Australia for a number of years, he arrived as an adult and did not spend his formative years here. Accordingly, the community would not afford him a higher tolerance for his conduct based on the length of time he has lived here.[170] The Tribunal agrees with this submission and does not consider such tolerance would be afforded the Applicant.
  15. In weighing this consideration, the Tribunal is also guided by the principles in para 5.2 of Direction No 99. Paragraph 5.2(2) directs that the Applicant, having engaged in criminal conduct, should expect to forfeit the privilege of staying in Australia. Paragraph 5.2(3) expresses a principle similar to para 8.5(2) with respect to serious character concerns and makes it clear that those concerns are not restricted to circumstances where there is a measurable risk of physical harm to the Australian community.
  16. Overall, the Tribunal affords this primary consideration in paragraph 8.5 of Direction No 99, being the expectations of the Australian community, strong weight in favour of cancelling the Applicant’s visa.

Other considerations

  1. Paragraph 9 of Direction No 99 states:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) legal consequences of the decision;

b) extent of impediments if removed;

c) impact on victims;

d) impact on Australian business interests

Legal consequences of decision under section 501 or 501CA

  1. The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.[171]
  2. The Applicant accepted he is not covered by a protection finding and does not seek to engage Australia’s protection obligations. The Applicant and Respondent agreed the consideration should be given neutral weight.[172]
  3. The consequences of a visa refusal or cancellation under s 501 or related provisions include:
  4. Where a visa application is refused or a visa is cancelled on character grounds under s 501, this results in deemed refusal of any other undecided non-protection visa applications and deemed cancellation of any other (non-protection) visa held.[177] Generally, if a visa is cancelled its former holder becomes an unlawful non-citizen immediately after cancellation.[178] Under s 189 of the Migration Act, the Applicant must be detained and removed as soon as reasonably practicable under s 198.[179] As no protection finding has been made with respect to the Applicant, there is no information to suggest he would be subject to prolonged detention. He would be subject to removal as soon as his appeal rights are exhausted, or he applies for another visa if eligible to do so.
  5. Under s 501E, a person cannot apply for another visa while they remain in Australia if:

Such an application is not a valid application for a visa.[180] The only exceptions are an application for a protection visa or a visa specified in the Migration Regulations 1994 (the Regulations) (i.e. reg 2.12AA).[181] The only visa currently prescribed in those Regulations is a Bridging R (Class WR) visa.[182] If the original decision made under s 501 is set aside or revoked, any refused visa applications or cancelled visas are revived.[183] In addition, certain visas are subject to special return criteria (SRCs). For the visa subclasses to which SRCs apply, the SRC is prescribed in Schedule 2 to the Regulations as a criterion for visa grant. SRC 5001(c) provides for permanent exclusion if the visa applicant has previously had a visa cancelled under s 501 and there was no revocation of the decision under s 501CA. There is no provision for a visa applicant to whom SRC 5001 applies to request a waiver of the permanent exclusion.

  1. The Applicant’s visa is a temporary visa (subclass 820) which was part of a combined partner visa application. His former wife, Ms D was the sponsor for that visa. His application for a permanent visa (subclass 801) was refused as a consequence of the Cancellation Decision. Should his visa remain cancelled, his application for a permanent visa would be (or remain) refused. If the visa is not cancelled, his application for a permanent partner visa would remain on foot to be determined. While his relationship with the sponsor is not ongoing, the Tribunal notes where a spousal or de facto relationship has ceased and both the Applicant and the sponsoring partner have ongoing legal rights or obligations in respect of a child, the Applicant may be eligible for the Partner visa despite the relationship having ceased.[184] However, the Applicant would need to satisfy the character criteria applying to that visa class.
  2. The Applicant submitted that if the Cancellation Decision was set aside by the Tribunal, it was likely the Permanent Partner visa application would not be refused on character grounds. The Tribunal does not consider that another decision maker exercising any discretion with respect to character considerations would so fetter their discretion. In any event, in the Tribunal accepts that the effect of cancellation is that the permanent visa pathway offered by the Permanent Partner visa application would no longer be open to the Applicant.
  3. As this is the intended effect of the cancellation under s 501, and non-refoulment or prolonged detention issues do not arise in the Applicant’s case, the Tribunal affords this consideration neutral weight in the Applicant’s circumstances.

Extent of impediments if removed

  1. Paragraph 9.2 of Direction No 99 provides that taking into account the matters identified in sub-paragraphs 9.2(1)(a), (b) and (c) of Direction No 99, the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of the basic living standards available to other citizens of India. The matters identified under sub-paragraphs 9.2(1)(a), (b) and (c) are:
  2. The Applicant contended that he has lived in Australia since he was 20 years old and will find it difficult to return to a country where he has not lived and worked since he was a young man. It was submitted that given the time he has been in Australia and would experience difficulties reintegrating, this consideration weighed against cancellation of his visa.[185]
  3. The Respondent contended that the Applicant grew up in India and has returned on multiple occasions. He is familiar with the language and customs of India and has no health issues which would present an impediment to his return. The Respondent contended that the Applicant has tertiary qualifications in Computer Studies and in Business and his ‘skills and an array of experience in various fields’ and that there is no reason to assume that his skills and work experience gained in Australia would not be transferrable to India, or that employers in India would not regard these as being of a lesser standard. Further, it was submitted that the Applicant has strong family ties in India through his parents and his sister and that there is nothing to indicate that they would not assist and support him to re-establish himself in India. It was contended that any difficulties the Applicant may face are not insurmountable. Further, it was submitted that as the Applicant had returned to India following the offences in 2016 (prior to being charged), he was clearly willing to face any impediments at that time to avoid the potential consequences of his offences. The Respondent contended this consideration should be given neutral weight.[186]
  4. The Tribunal asked the Applicant about his family circumstances in India. He said he grew up in Punjab. His parents remain there and his father is a retired police officer. He said they have a government apartment. His mother is housewife. He has one sibling, a sister who lives with her parents and works as a software engineer for a multi-national company with whom she has worked for around seven years.[187] He has extended family remaining in India. He confirmed that if he returned to India he would be able to live with his parents.[188] Prior to coming to Australia, he had partially completed a Bachelor of Multi-Media degree, but he did not complete it. He said he commenced a Business Diploma in Australia but did not complete it because he wanted to earn money. He said he hoped to open a food business one day.[189]
  5. His ex-wife and daughter are Australian citizens and Ms D indicated they would remain in Australia if he returned to India. His girlfriend, Ms Kaur is an Indian citizen from Punjab and shares the Applicant’s Sikh faith. She has lived in Australia for around five years.[190] She has a Master’s in Accounting but does not like the field and is working as an Assistant in Nursing (AIN) working in aged care.[191] She told the Tribunal she had applied for permanent residency and had a sponsor.[192] She told the Tribunal that if the Applicant is returned to India, she will return with him. She said she studied there and while she wants to stay here, she can’t think about her life without him.[193] When asked if she could provide support to Ms D and Ms A from India, she said it depended on what kind of work she could get because she hadn’t worked in India before. She said she would provide whatever support she could.[194]
  6. The Tribunal accepts that the Applicant will suffer emotional distress as a result of return to India and separation from his daughter. He is aware this will also impact returning would have on Ms Kaur and the fact she would lose the opportunity to pursue a career and permanent residency here. He would suffer distress as a result of the ongoing pain that would cause Ms Kaur.
  7. However, he would have Ms Kaur and his family’s ongoing emotional and practical support in India which would assist him in the transition to re-establishing himself.
  8. The Tribunal considers there is nothing in the information available to it to suggest that the Applicant would be impeded in establishing himself and maintaining basic living standards in India, in the context of what is generally available to other citizens of that country, taking into account the Applicant’s particular circumstances, including mature age, family support, work experience in Australia and lack of language or cultural barriers in India. There was no evidence the Applicant would suffer any significant cultural barriers on return to India, having spent his formative years there noting also his close involvement with the Sikh community in Australia.
  9. The Tribunal acknowledges the Applicant is undertaking CBT to address with the underlying causes of his offending and that he plans to do further CBT therapy. As this therapy is being undertaken online, it is not clear that he would be unable to continue this from India. However, and in any event, there was no information before the Tribunal the Applicant would not have access to social, medical and economic supports in India. While the Tribunal accepts the Applicant may face some initial challenges establishing access to such services and to finding employment and, potentially, finding an appropriate CBT provider (if he is unable to continue online) he has ongoing family support in India and the Tribunal does not accept these challenges present a significant impediment to his establishing himself in India having regard to all of his circumstances.
  10. The Tribunal accepts if the Applicant returns to India, Ms D and Ms A would remain in Australia.[195] The Tribunal notes Ms D has travelled to India for several weeks when he returned in 2016 and there was no information she would be unable to do so in the future if her financial circumstances allow.[196] However, the Tribunal accepts were she to do so, this would likely be on the basis of an occasional visit only. The Tribunal accepts that the Applicant would suffer emotionally as a result of separation from his daughter and finds that this would make his resettlement in India more difficult.
  11. Overall, the Tribunal finds that the Applicant may encounter some difficulty establishing himself if he were to return to India, but does not consider these difficulties amount to significant impediments if removed.
  12. Overall, the Tribunal finds that the extent of impediments if removed, weighs slightly in favour of not cancelling the visa.

Impact on victims

  1. Paragraph 9.3 of Direction No 99 states:
(1) Decision-makers must consider the impact of the section 501 or 501CA 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 information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
  1. The Applicant submitted that this consideration weighed in favour of not cancelling the visa. It was contended that the Full Federal Court decision Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 116 at [134] provided guidance on how to assess this consideration, as follows:

Paragraph 9.3(1) requires that decision-makers must, “consider the impact of the section 501 or 501CA decision on members of the Australian community”. The members of the Australian community are explained to include, but are not confined to, “victims of the non- citizen’s criminal behaviour, and the family members of the victim or victims”. The paragraph does not in its terms confine the “impact” that must be considered to consequences for members of the Australian community of the perpetrator remaining in Australia, and extends to consequences for members of the Australian community of the perpetrator being removed from Australia. The word “impact” is not limited to beneficial impacts for members of the Australian community of removal of the offender from Australia, but is apt to include adverse impacts upon them of such removal. In addition, the paragraph requires that what must be considered is, “the impact of the section...501CA decision” without distinguishing between a decision to revoke the s 501(3A) cancellation decision and a decision not to revoke. Therefore, impacts on members of the Australian community caused by a decision that will result in the offender either remaining in Australia or being removed from Australia fall to be considered under para 9.3(1).

  1. It was contended by the Applicant that while the victim of the Child Sex Offences has not provided any indication of her views relating to the Applicant’s possible removal, Ms D, had provided a statutory declaration in favour of the Applicant being able to remain in Australia and that impacts on her were relevant to this consideration. That statutory declaration outlined the negative impact on both her and her daughter if the Applicant was removed and stated:[197]

My family, my sister and I have forgiven Gurleen and we all just want the best for [Ms A] as she needs her father in her life.

  1. It was also contended that if it was found that the Applicant committed family violence, the impact on Ms D as a victim must also be considered as that she wishes him to remain in Australia. As such, it was contended the consideration weighed against cancelling the Applicant’s visa.[198]
  2. The Respondent contended that Direction No 99 referred in this section to victims of the Applicant’s ‘criminal behaviour’ this would not encompass Ms D as a victim of family violence where the Applicant had not been convicted of any family violence offences, further and in any event it was contended Ms D’s interests were considered in the context of the Applicant’s ties to Australia. It was further contended that evidence from Ms D suggesting her family had forgiven the Applicant should not be given weight as evidence of the impact on the victim.[199]
  3. With respect to this consideration, the Tribunal considers that there was no direct evidence from the victim of the Child Sex Offences, or her parents, as to the impact the decision would have on her. The Tribunal does not consider it can place weight on Ms D’s representations as to her sister’s views or those of her parents where it would have been open to the Applicant to obtain supportive statement from them should they have chosen to do so. In such circumstances, the Tribunal considers there is not sufficient information available regarding the impact of the decision on Ms D’s sister or her parents to make a finding in that regard.
  4. However, the Tribunal considers to the extent the wording of the Direction No 99 is limited to behaviours for which the Applicant has been convicted of a crime, the consideration would encompass members of the family of a direct victim of criminal behaviour and that Ms D falls within its scope. The Tribunal also considers that the reference to ‘criminal behaviour’ in the Direction would encompass behaviour giving rise to a finding the Applicant had engaged in family violence under the second primary consideration.
  5. The Tribunal accepts Ms D’s evidence that she would be negatively impacted by the Applicant’s visa being cancelled. Having regard to her relationship with the victim of the Child Sexual Offences and the findings above regarding family violence, the Tribunal gives the negative impact on her only slight weight against cancelling the visa in the context of this consideration.

Impact on Australian business interests

  1. Paragraph 9.4 of Direction No 99 states:
(1) Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
  1. The Tribunal notes several statements from Mr Amandeep Singh, a friend and former employer of the Applicant, were before the Tribunal. Mr Amandeep Singh stated the Applicant was a valued employee and that he will employ him again if he is permitted to remain in Australia in the community. Mr Singh noted that he would also seek additional business opportunities with the Applicant as his partner to grow the business if he remains in Australia. He notes:[200]
    If he removed from Australia it would be very sad for me as I would lose a valuable employee and friend, but I would also lose my future business partner.
  2. The Tribunal notes while Mr Singh spoke of losing potential business opportunities if the Applicant’s visa is cancelled, he did not suggest his existing business interests would be significantly impacted or that the services he delivers (waste collection) would be compromised by a decision to cancel the Applicant’s visa. Further, the Applicant did not suggest that his removal from Australia would adversely impact on Australian business interests, submitting that the consideration should be afforded neutral weight [201]
  3. The Tribunal affords this consideration neutral weight in the Applicant’s case.

CONCLUSION

  1. The Tribunal considers that the Applicant does not pass the character test as defined in s 501(6)(a) for the reasons set out earlier in this decision. This enlivens the discretion under s 501(2) of the Migration Act to cancel the Applicant’s visa, taking into account the primary and other considerations set out in Direction No 99 when exercising the discretion.
  2. Paragraph 7 of Direction 99 sets out the way in which the relevant considerations are to be taken into account and weighed.
  3. There has been extensive judicial consideration of how the exercise of balancing and weighing the considerations contained in the relevant Ministerial Directions is to be undertaken where making decisions pursuant to s 501 (considering a number of Ministerial Directions preceding Direction No 99).[202] The Tribunal is guided by those decision. Recently in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs ([2023] FCAFC 138) the Full Court considered the process of balancing considerations in the context of revocation under s 501CA(4). Applying the principles espoused by the Full Court in that case to the exercise of discretion under s 501(2) to cancel a visa, the Full Court indicated the Tribunal is directed to give appropriate weight to each relevant consideration, explain why such weight is given and then compare and balance all of the applicable considerations to determine whether the visa should be cancelled.
  4. In determining the weight to be applied to each consideration, the Tribunal has considered all the primary and other relevant considerations and weighed them in light of the evidence and findings and according to the guidance provided by Direction No 99. The Tribunal has considered the weight to be applied to each consideration in the context of comparing and balancing the relevant considerations to determine whether the Applicant’s visa should be cancelled.
  5. The Tribunal has considered all the primary considerations, including the protection of the Australian community. This involved consideration of the serious nature of the offences committed by the Applicant and the risk of harm to the community were he to reoffend. Considering these factors, the Tribunal has found that the protection of the Australian community weighs very strongly in favour of cancelling the Applicant’s visa.
  6. The Tribunal found that while the consideration of family violence was relevant to the Applicant’s circumstances, having regard to the information before the Tribunal including the evidence of Ms D, the Applicant’s ex-wife, only slight weight should be afforded this consideration in favour of cancelling the visa.
  7. The Tribunal acknowledges the strength, nature and duration of the Applicant’s ties to Australia and has found these weigh moderately against cancelling the Applicant’s visa.
  8. The best interests of Ms A, as the child identified as being impacted by the decision, are that her father remains in Australia and this weighs very strongly against cancelling the Applicant’s visa.
  9. The Tribunal has also found that due to the serious nature of the Applicant’s offences, including child sexual offences, the expectations of the Australian community weigh in favour of the Tribunal cancelling his visa. Having regard to all the relevant circumstances, the Tribunal affords strong weight to this consideration in the Applicant’s circumstances.
  10. In relation to the relevant ‘other considerations’ identified in Direction No 99, the Tribunal finds that the legal consequences of the decision weigh neutrally in the Applicant’s case. The extent of impediments if removed weighs slightly against the cancellation of the Applicant’s visa. For the reasons outlined earlier, the Tribunal finds the consideration of the impact on victims weighs against cancelling the visa but is only afforded slight weight having regard to all the circumstances. The Tribunal has found that the impact on Australian businesses weighs neutrally in the Applicant’s circumstances.
  11. The Applicant has committed a number of offences including child sexual offences which are very serious. The community’s tolerance for offending of this type is low because of the unacceptable risk it presents it to children. The Applicant has acknowledged the impacts of his offending and expressed remorse. He has made recent efforts to address the underlying causes of his offending while in detention. However, the Tribunal has found there is an ongoing risk he will reoffend, albeit it with a low risk of child sexual offending and a low to moderate risk of general offending. Given the seriousness of some of his offending, the Australian community would expect his visa would be cancelled.
  12. Balanced against this, the Applicant has lived in Australia for a significant period. He wishes to remain in Australia with his new partner and to have an ongoing relationship with his young daughter. His daughter is an Australian citizen who is being raised here and resides currently with her mother. His ties to the community are strong, including through his daughter, former partner and friends and to a lesser extent through his current partner who is not a citizen or permanent resident of Australia. The Applicant is committed to building a relationship with his daughter and supporting her financially and emotionally in Australia. Her mother is committed to remaining in Australia and raising her here. It is in her best interests that the visa not be cancelled. There are some impediments if the Applicant is removed to India, including the impact of separation from his daughter and pressure on Ms Kaur to relocate, though the Tribunal assessed those impediments were not insurmountable. The Tribunal also assessed that a decision to cancel the Applicant’s visa would, on balance, impact negatively on Ms D as a family member of the victim of his offending and as a victim of family violence.
  13. Paragraph 7(2) of Direction 99 states that primary considerations should generally be given greater weight than the other considerations. Nothing has been presented which would cause the Tribunal to find that that general principle should not apply in the present case.
  14. Having regard to the evidence before it and having evaluated and weighed the considerations in favour of cancellation of the Applicant’s visa and the considerations weighing against cancellation, the Tribunal considers that the primary considerations of the protection of the Australian community and the expectations of the Australian community and to a lesser extent family violence committed by the Applicant, outweigh the other primary considerations of the best interests of children and the strength, nature and duration of the Applicant’s ties to Australia and the other relevant considerations including the extent of impediments if he is removed to India and the impact on victims.
  15. In summary, having regard to all of the primary considerations, and the relevant other considerations in Direction No 99, the Tribunal considers the correct or preferable decision is that the Applicant’s visa be cancelled.

DECISION

  1. The decision of the delegate of the Respondent dated 1 August 2023 to cancel the Applicant’s Class UK Subclass 820 Partner (Temporary) visa is affirmed.

I certify that the preceding 251 (two hundred and fifty one) paragraphs are a true copy of the reasons for the decision herein of Senior Member S Burford

.................[Sgd].......................................................
Associate

Dated: 24 November 2023

Date of hearing:
30 October 2023
Applicant:
In person
Solicitor for the Respondent:
Mr Ashley Burgess, Australian Government Solicitor

[1] See Khalil and Minister for Home Affairs [2019] FCAFC 151 at [41].

[2] A1, page 11, 26; Transcript, page 29, 34, 35.

[3] R1, 84; R2, page 97, 98.

[4] Pursuant to the Community Protection (Offender Reporting) Act 2004, R1, page 84; R2, pages 97, 98. Also referred to in the documents as the National Child Offender System, (NCOS).

[5] 23 June 2020, 13 April 2022, 18 May 2022, 9 August 2022 and 18 June 2023, R1, page 8 and see R1, page 37, pages 50-82, pages 93-105, pages 115-144, pages 146-153.

[6] R1, pages 8-10.

[7] See R1, pages 9, 12-29.

[8] Direction No 99 paras 2-3.

[9] Direction No 99 para 5.1(4).

[10] Direction No 99 para 5.1(2).

[11] As there is no para 8.55(2) the Tribunal infers this is a reference to 8.5(2).

[12] Direction No 99 para 6.

[13] Direction No 99 para 6.

[14] Direction No 99 para 9.

[15] R1, pages 38-39.

[16] R2, pages 95-96.

[17] R1, pages 38-39; R2, pages 95-96.

[18] R1, page 51.

[19] R1, page 5.

[20] Transcript, page 14-15

[21] R1, pages 38-39;R2, pages 95-96.

[22] R2, page 13.

[23] Criminal Code Act Compilation Act 1913 (WA), Version 19-a0-00 (as at 22 Sep 2017), s321(4).

[24] Criminal Code Act Compilation Act 1913 (WA), Version 19-a0-00 (as at 22 Sep 2017), s 326.

[25] Community Protection (Offender Reporting) Act 2004 (WA), ss 6, 9 and 10; Schedule 1; RSFIC, page 2.

[26] See, R1, page 84.

[27] R2, page 97.

[28] Community Protection (Offender Reporting) Act 2004 (WA), Part 3; RSFIC, page 2.

[29] R2, pages 97-98.

[30] R1, page 84.

[31] R1, page 80-81.

[32] R2, page 97.

[33] Community Protection (Offender Reporting) Act 2004 (WA), s 29; R2, page 97.

[34] Ibid.

[35] R2, page 95.

[36] Transcript, pages 21-22.

[37] R2, page 95.

[38] Transcript, pages 21-22.

[39] Section 501(6)(a).

[40] Drake v MIEA (1979) 76 FLR 409 at 415–418; Seyfarth v Minister for Immigration and Multicultural and & Indigenous Affairs [2005] FCAFC 105; (2005) 142 FCR 580 at [27] (Sundberg, Jacobson and Bennett JJ).

[41] ASFIC, App Reply; Transcript, pages 69-74.

[42] RSFIC; Transcript, pages 74-79.

[43] See also Direction No 99 para 8(1).

[44] See also Direction No 99 para 8.1(2)(a).

[45] ASFIC, pages 4-5.

[46] RSFIC, page 7.

[47] RSFIC, pages 7-8.

[48] R1, pages 73-75.

[49] R1, page 71.

[50] R1, pages 71-72.

[51] R1, page 72.

[52] R1, page 75.

[53] R1, page 75.

[54] R1, page 73.

[55] R1, page 75.

[56] Ibid.

[57] R1, page 76.

[58] R1, page 77.

[59] Direction No 99, par 8.1.1.1(1)(i).

[60] Direction No 99, par 8.1.1.1(1)(ii).

[61] Direction No 99, par 8.1.1.1(1)(i).

[62] R2, pages 97-98.

[63] R1, page 81.

[64] Transcript, pages 21 and 23.

[65] Direction No 99, par 8.1.1(1)(d).

[66] See also Direction No 99 para 8.1(2)(b).

[67] ASFIC, pages 6-10; A Reply, pages 1-2.

[68] RSFIC, pages 8-9, 11-12.

[69] Direction No 99 para 8.1.2(2)(a).

[70] RSFIC, page 9 citing https://bravehearts.org.au/research-lobbying/stats-facts/the-impact-of-child-sexual-abuse/.

[71] R1, pages 44, 46.

[72] Direction No 99 para 8.1.2(2)(b).

[73] ASFIC, pages 6-10; A Reply, pages 1-2.

[74] RSFIC, page 10.

[75] R1, page 144.

[76] A1, pages 34, 51; A2, pages 1-4, 8.

[77] R1, page 44.

[78] R1, page 44.

[79] R1, page 44.

[80] R1, pages 47, 48.

[81] R2, pages 86-91.

[82] R2, page 87.

[83] R2, pages 88, 90.

[84] R2, pages 90 and 92-94.

[85] Transcript, page 17; R2, pages 13-85 (Department of Justice ‘Client Event Details Report’).

[86] Transcript, page 16.

[87] A1, pages 24-31.

[88] Transcript, pages 49-59.

[89] A1, page 31.

[90] A1, page 29.

[91] Transcript, page 50.

[92] A1, page 29.

[93] Transcript, page 51.

[94] Transcript, page 51.

[95] A1, page 30.

[96] A1, page 30.

[97] A1, page 28.

[98] Transcript, page 26.

[99] A1, page 31.

[100] R1, page 48.

[101] Transcript, page 52.

[102] Transcript, page 54.

[103] Transcript, page 5.

[104] Transcript, page 55.

[105] Transcript, pages 57-58.

[106] Transcript, page 58.

[107] Transcript, page 51.

[108] Transcript, page 53.

[109] Transcript, page 56.

[110] Transcript, page 56.

[111] R1, page 144.

[112] Transcript, page 16; A2, page 8.

[113] A2, page 8.

[114] A2, page 9.

[115] A1, page 29.

[116] A1 and A2.

[117] R1, pages 135-143.

[118] R1, page 153.

[119] A3, page 50.

[120] ASFIC, page 11.

[121] RSFIC, pages 12-13.

[122] A1, page 149.

[123] RSFIC, page 13.

[124] A1, page 9; Transcript, page 19.

[125] Transcript, pages 19-20.

[126] Transcript, page 54.

[127] Transcript, page 55.

[128] ASFIC, page 11.

[129] ASFIC, page 11.

[130] ASFIC, page 12.

[131] ASFIC, page 13.

[132] A1, page 20.

[133] A1, pages 4, 9, 11, 14, 15, 53.

[134] RSFIC, page 14.

[135] Direction No 99, par 8.3(4)(a).

[136] A1, pages 21-23.

[137] Direction No 99, par 8.3(4)(a)(iii).

[138] Direction No 99, pars 8.3(3) and (4)(a)(ii); A1, pages 4, 8, 11, 13, 15, 17, 18, 19; A2, pages 5, 7; R1, pages 111, 128, 144.

[139] A1, page 17; Transcript, pages 24-25.

[140] A1, page 18.

[141] A1, page 14.

[142] A1, page 15; see also Pages 11-14.

[143] A1, page 11.

[144] A1, page 13-14, see also A1, page 19.

[145] A2, page 5.

[146] Direction No 99, par 8.3(1).

[147] Direction No 99, par 8.3(2).

[148] Direction No 99, par 8.3(1) and (3).

[149] A1, pages 4- 7; Transcript, page 62.

[150] A1, page 3; ASFIC, page 13.

[151] ASFIC, pages 13-15; A Reply, pages 2-3.

[152] ASFI, page 13.

[153] ASFIC, page 14.

[154] ASFIC, pages 13-15; A Reply, pages 2-3.

[155] RSFIC, pages 14-15.

[156] A1, pages 36-40.

[157] R1, pages 129-134.

[158] Transcript, page 46.

[159] Transcript, page 61.

[160] Transcript, page 47.

[161] Transcript, pages 46-47.

[162] Transcript, page 37.

[163] Transcript, pages 36 and 60.

[164] Considering the corresponding provisions in Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (Direction No 65).

[165] Direction No 99 para 8.5(1).

[166] Charlesworth and Stewart JJ; Flick J dissenting.

[167] See sub-para 8.5(2)(c).

[168] Direction No 99, para 8.5(1).

[169] ASFIC, page 15.

[170] Paragraph 5.2(5) of Direction No 99.

[171] Direction No 99 para 9.1.

[172] ASFIC page 16; RSFIC, page 16.

[173] Migration Act ss 189, 150871076">196, 197C and 198.

[174] Migration Act s 501F.

[175] Migration Act s 501E.

[176] Migration Act s 503, special return criteria (SRC) 5001.

[177] Migration Act s 501F.

[178] Migration Act s 15.

[179] The Court in BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 followed AJL20 v Commonwealth of Australia [2020] FCA 1305 to find the applicant’s detention had at all times been lawful: at [112]-[122].

[180] Migration Act s 46(1)(d).

[181] Migration Act s 501E(2).

[182] Migration Regulations 1994, Reg 2.12AA.

[183] Migration Act s 501F(4).

[184] Clause 801.221(6)(c)(ii), Migration Regulations 1994 (Cth).

[185] ASFIC, page 16.

[186] RSFIC, pages 16-17.

[187] Transcript, pages 23-24.

[188] Transcript, page 29.

[189] Transcript, page 29.

[190] Transcript, page 60.

[191] Transcript, pages 29-30.

[192] Transcript, page 60.

[193] Transcript, page 62.

[194] Transcript, page 62.

[195] Transcript, pages 13, 37.

[196] A1, page 27; R1, page 109.

[197] A1, page 10; ASFIC, page 16.

[198] ASFIC, pages 16-17; A Reply, page 3.

[199] RSFIC, page 17.

[200] A1, page 19.

[201] ASFIC, page 17, para 128.

[202] See Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591.

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