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Decision record for self-study purposes:
© Commonwealth of Australia 2018
Division: GENERAL DIVISION
File Number(s): 2018/2542
Re: Lakhbir Manku
APPLICANT
And Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal: Senior Member M Griffin QC
Date: 30 July 2018
Place: Sydney
The Tribunal orders that the Delegate’s decision of 28 February 2018 is set aside.
In substitution, the Tribunal orders that the discretion to refuse to grant the Applicant a Student (Temporary)(Class TU) visa is not to be exercised.
………………..[sgd]…………………………………………….
Senior Member M Griffin QC
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Catchwords
MIGRATION – application for a student visa – whether the decision-maker is to exercise
discretion to refuse the grant of a visa – whether the Applicant is of good character – whether there is a risk of harassing, molesting, intimidating or stalking another person – apprehended domestic violence order – Direction No 65 – decision set aside
Legislation Crimes (Sentencing and Procedures) Act 1999 (NSW)
Migration Act 1958 (Cth)
Cases
Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD
411
Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238
Secondary Materials
Minister for Immigration and Border Protection (Cth), Direction [No 65] – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under section 501CA, 22 December 2014
REASONS FOR DECISION
Senior Member M Griffin
30 July 2018
DECISION
1. The Applicant seeks review of a decision of a Delegate of the respondent made on 28 February 2018 to refuse the grant of a Student (Temporary)(Class TU) visa pursuant to s.501 of the Migration Act 1958 (Cth) (the Act), on the basis that the Applicant did not satisfy the character test under that section.
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2. The present application is brought within the Tribunal’s jurisdiction under s.500 of the Act.
Pursuant to s.500(6L) of the Act, the Tribunal is required to make a decision within 84 days of the date on which the Applicant was notified of the Delegate’s decision, or else that decision is taken to have been affirmed. Accordingly, the last day upon which the Tribunal may make a decision in the present case is 1 August 2018.
3. The Applicant is a citizen of India, who first arrived in Australia on 18 August 2014 as the holder of a student visa. He most recently entered Australia on 5 January 2016.
4. On 7 September 2016, the Applicant’s wife lodged with the respondent’s Department an application for a student visa. The Applicant was named as a dependent Applicant in that application. On 4 August 2017, an officer of the Department sent to the Applicant a notice of intention to consider the refusal of his visa application under s.501 of the Act. The Applicant responded to the notice on 30 August 2017.
5. The Delegate refused the grant of the visa to the Applicant on 28 February 2018 and informed the Applicant of the refusal of the visa on 9 May 2018. The following day, on 10 May 2018, the Applicant lodged with the Tribunal an application for review.
ISSUES
6. The issues are whether or not the Applicant passes the character test as required by s.501 of the Act, and if he does not, whether the Tribunal should exercise its discretion to affirm the decision to refuse the grant of the visa.
RELEVANT FACTS
7. The Applicant’s National Police Certificate, issued on 13 December 2016, discloses that on 13 July 2016, the Applicant was convicted of the following offences:
a. Common assault (2 counts)
b. Stalk/intimidate intend fear physical etc harm (domestic)
c. Assault occasioning actual bodily harm
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8. In each instance, the Applicant pleaded guilty and was released on a bond to be of good behaviour for a period of two years, pursuant to s.9 of the Crimes (Sentencing and Procedures) Act 1999 (NSW). At the date of these submissions, the Applicant remains subject of the good behaviour bond.
9. The offences were committed by the Applicant against his wife and occurred between 4 pm and 9 pm on 26 June 2016. The Applicant was arrested on that date and conveyed to Blacktown Police Station, whereupon an Apprehended Domestic Violence Order (ADVO) was made against the Applicant in favour of the Applicant’s wife. The ADVO was lifted upon sentencing on 13 July 2016.
10. The Applicant and his wife have a child, who presently resides in India. The Applicant’s wife is undertaking a Masters Degree. The Applicant’s wife was wholly dependent upon the Applicant for financial support in order to allow her continued studies. The Applicant had previously worked as a bricklayer.
LEGISLATION AND DISCUSSION
11. Pursuant to s.501(1) of the Act, the Tribunal acting as the decision-maker may affirm a decision to refuse the grant of a visa if satisfied that the Applicant does not pass the character test.
12. The character test is set out at s.501(6) of the Act, and relevantly prescribes at s.501(6)(c) that a person will not pass the character test if:
c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character.
13. Section 501(6)(d)(i) of the Act prescribes that a person will not pass the character test if, in the event that they were allowed to remain in Australia, there is a risk that they would engage in criminal conduct.
14. Should a visa Applicant not satisfy the character test, the discretion to refuse the visa under s.501(1) of the Act is enlivened. The exercise of the discretion is governed by the considerations set out in Direction No 65 – Visa Refusal and Cancellation under s 501 and
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Revocation of a Mandatory Cancellation of a Visa under s 501CA (Direction 65) (see Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238; (1999) 90 FCR 583 at 591, per Katz J).
15. It is instructive to consider in detail those parts of the Direction which are relevant to the issues in the Applicant’s case.
APPLICATION OF THE CHARACTER TEST
16. The Direction states:
5. Not of good character on account of past and present criminal or general
conduct (section 501(6)(c)(i) and (ii))
(1) A person does not pass the character test if the person is not of good character, having regard to their past and present criminal and/or their past and present general conduct.
(2) The concepts of criminal conduct and general conduct are not mutually exclusive. Conduct can be both general and criminal at the same time or it may be either general or criminal conduct: Wong v Minister for Immigration and Multicultural Affairs [2002] FCAFC 440 at [33].
(3) In considering whether a person is not of good character, all the relevant circumstances of the particular case are to be taken into account to obtain a complete picture of the person’s character.
(a) In Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411, Lee J said at [34] ‘the words “of good character” mean enduring moral qualities reflected in soundness and reliability in moral judgement in the performance of day to day activities and in dealing with fellow citizens. It is not simply a matter of repute, fame or standing in the community but of continuing performance according to moral principle. A person of ill repute by reason of past
criminal conduct may nonetheless, on objective examination at a later stage in life, be shown to be a person reformed and now of good character.’
(4) In order to fail this limb of the character test, a person need not necessarily have a recent criminal conviction, or have been involved in recent general conduct which would indicate that they are not of ‘good character’. However, the conduct in question must be sufficient to indicate a lack of enduring moral quality that outweighs any consideration of more recent good behaviour.
(a) In Godley, Lee J went on to say ‘For a finding to be made under s501(6)(c) that a person is not of good character it is necessary that the nature of the conduct said to be criminal, be examined and assessed as to its degree of moral culpability or turpitude. Furthermore, there must be examination of past and present criminal
conduct sufficient to establish that a person at the time of decision is not then of good character. The point at which recent criminal conduct,
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(as the term ‘present criminal conduct’ is to be understood), becomes past criminal conduct must be a matter of judgement. If there is no recent criminal conduct that circumstances will point to the need for the Minister to give due weight to that fact before concluding that a visa applicant is not of good character’. Before past and present general conduct may be taken to reveal indicia that a visa applicant is not of good character continuing conduct must be demonstrated that shows a lack of enduring moral quality. Although in some circumstances isolated elements of conduct may be significant and display lack of moral worth they will be rare, and as with consideration of criminal conduct there must be due regard given to recent good conduct.
5.1 Past and present criminal conduct
(1) In considering whether a person is not of good character on the basis of past or present criminal conduct, the following factors are to be considered:
(a) The nature and severity of the criminal conduct;
(b) The frequency of the person’s offending and whether there is any trend of increasing seriousness;
(c) The cumulative effect of repeated offending;
(d) Any circumstances surrounding the criminal conduct which may explain the conduct such as may be evident from judges’ comments, parole reports and similar authoritative documents; and
(e) The conduct of the person since their most recent offence, including:
(i) The length of time since the person last engaged in criminal conduct;
(ii) Any evidence of recidivism or continuing association with criminals;
(iii) Any pattern of similar criminal conduct;
(iv) Any pattern of continued or blatant disregard or contempt for the law; and
(v) Any conduct which may indicate character reform.
5.2 Past and present general conduct
(1) The past and present general conduct provision allows a broader view of a person’s character where convictions may not have been recorded or where the person’s conduct may not have constituted a criminal offence.
(a) In considering whether the person is not of good character, the relevant circumstances of the particular case are to be taken into account, including evidence of rehabilitation and any relevant periods of good conduct.
(2) The following factors may also be considered in determining whether a person is not of good character:
(a) Whether the person has been involved in activities indicating contempt or disregard for the law or for human rights. This includes, but is not limited to:
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(i) Involvement in activities such as terrorist activity, activities in relation to trafficking or possession of trafficable quantities of proscribed substances, political extremism, extortion, fraud; or
(ii) A history of serious breaches of immigration law, breach of visa conditions or visa overstay in Australia or another country; or
(iii) Involvement in war crimes or crimes against humanity;
(b) whether the person has been removed or deported from Australia or another country and the circumstances that led to the removal/deportation; or
(c) whether the person has been:
(i) dishonourably discharged; or
(ii) discharged prematurely;
from the armed forces of another country as the result of disciplinary action in circumstances, or because of conduct that, in Australia would be regarded as serious.
(3) Where a person is in Australia and charges have been brought against that person in a jurisdiction other than an Australian jurisdiction, and those charges will not be resolved in absentia, the conduct that is the subject of those charges may be considered in the context of its impact on the person’s overall character.
6 Risk in regards to future conduct (section 501(6)(d))
(1) A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person would engage in any of the conduct specified in section 501(6)(d) of the Act. The types of conduct specified are discussed below.
(2) The grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or to remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act.
(3) It is not sufficient to find that the person has engaged in conduct specified in paragraph 501(6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act.
6.1 Risk of engaging in criminal conduct in Australia (section 501(6)(d)(i))
(1) A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person will engage in criminal conduct in Australia.
(2) The reference to criminal conduct must be read as requiring that there is a risk of the person engaging in conduct for which a criminal conviction could be recorded.
6.2 Risk of harassing, molesting, intimidating or stalking another person in Australia (section 501(6)(d)(ii))
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(1) A person will not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person will harass, molest, intimidate or stalk another person in Australia.
(2) ‘Harassment’, ‘molestation’ ‘intimidation’ and ‘stalking’ are to be given their ordinary meaning. Section 501(11) of the Act clarifies the scope of conduct amounting to harassment or molestation. Conduct and behaviours that may fall under this category include, but are not limited to, the following:
(a) conduct that could be construed as harassment or intimidation (whether or not it breaches the terms of an Apprehended or Domestic Violence (or similar) Order);
(b) conduct that potentially places children in danger, such as unwelcome and/or inappropriate approaches, including, but not limited to, approaches made through electronic media; or
(c) conduct that would reasonably cause an individual to be severely apprehensive, fearful, alarmed or distressed regarding the person’s behaviour or alleged behaviour towards the individual, any other individual, or in relation to their property or that of any other individual.
17. Paragraph [5] of Annexure A to Direction 65 provides guidance as to the grounds for refusal under s.501(6)(c) of the Act. Paragraph [5(3)] of Annexure A relevantly prescribes that all the relevant circumstances of a particular case must be taken into account to obtain a complete picture of the person’s character (citing Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411). Paragraph [5(4)] of Annexure A prescribes that conduct which may ground a finding that a person is not of good character need not be recent. However, that conduct should be sufficient to indicate a lack of enduring moral quality that outweighs any consideration of more recent good behaviour.
18. In considering past and present criminal conduct, paragraph [5.1] to Annexure A of Direction 65 prescribes that the Tribunal should relevantly have regard to the nature and severity of the criminal conduct, the cumulative effect of repeated offending, the circumstances around the conduct, and the person’s conduct since the commission of their most recent offence.
19. Paragraph [6(2)] of Annexure A to Direction 65 provides that the ground for refusal under s.501(6)(d) is enlivened if there is evidence suggesting that there is “more than a minimal or remote chance that the person, if allowed to enter or remain in Australia, would engage in [the specified] conduct”.
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20. Paragraph [6(3)] of Annexure A states that it is not sufficient to find that the person has engaged in such conduct in the past; there must be a risk that the person would engage in the specified conduct in the future. Further discussion of the types of behaviour referred to in s.501(6)(d)(i) and (ii) is contained at paragraphs [6.1] and [6.2] of Annexure A to Direction 65. Relevantly, paragraph [6.2(2)] of Annexure A to Direction 65 provides further guidance as to what may constitute the behaviour prescribed in s.501(6)(d)(ii) of the Act.
21. Part B of Direction 65 contains guidance as to the considerations which must be taken into account when deciding whether to refuse the grant of a visa on character grounds. Direction 65 prescribes a number of primary considerations that must be taken into account (per [8(1)]) as well as a number of other considerations. Primary considerations will generally be given greater weight than the other considerations (per [8(4)]). The primary considerations are the protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia; and the expectations of the Australian community. The other considerations are Australia’s international non-refoulment obligations; the impact on family members; the impact on victims; and the impact on Australian business interests.
EVIDENCE AND ANALYSIS
22. I will now deal with the material and evidence upon which the Applicant relies.
23. The Applicant and his wife, referred to in the material as “the victim”, both gave evidence at the hearing. Both witnesses were cross-examined at length. The effect of the Applicant’s evidence in relation to the commission of the offence on 26 June 2016 was that he accepted that he may have slapped his wife with his open palm and grabbed her during the course of struggling. He denied any other physical contact or assault. Likewise, the wife largely supported her husband’s version of events. The full details of the transaction which was said to have occurred over a number of hours is to be found in the document’s pages [TB1.16].
24. Whilst it is not clear who actually composed the set of facts before the Sentencing Court, it cannot be supposed that the essential features of the assaults are not accurately recorded. Objectively, the offences are serious, although no more severe injury was occasioned to the victim other than bruising to her wrist and undoubtedly pain and discomfort was caused during the course of the assault.
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25. I am left with the only conclusion open that the Applicant and his wife/victim were not truthful in their evidence in an attempt to save the Applicant from removal from Australia.
26. The effect this has on the ultimate conclusions which have been reached will be dealt with below. However, I formed the strong impression that the wife was not suborned by her husband nor indeed was she afraid of him. Further, I am satisfied that she genuinely wishes to pursue to an ultimate conclusion, the courses which she is presently undertaking, that is, a Master of Business Administration as well as completing two economic subjects.
27. It is clear enough on the evidence that she relies upon her husband to provide financial support for her while she studies. She also works part-time in a nursing home. The wife stated in evidence that she also relied upon her husband in an emotional sense.
28. I accept this evidence. I had an opportunity to carefully observe both Applicant and wife during the course of their evidence. I asked the wife whether she was in fear or was afraid of her husband. In a quite spontaneous and disarmingly honest answer, she laughed and said that she was not. This is a telling feature of the relationship.
29. Central to the Applicant’s case is the question of whether he is of good character.
30. The evidence before the Tribunal is that there has never been an incident of the kind which occurred on 26 June 2016 either before or after that date. This is evidence given by both husband and wife.
31. However, having regard to the lack of credibility that must attend their evidence because of the view I have formed, one must look to objective evidence. There is a body of objective evidence which I am satisfied, supports the proposition that the incident of 26 June 2016 was isolated and out of character conduct of the husband.
32. Both in Australia and India there is no evidence of any offences having been committed by the Applicant either against his wife or anyone else. That, of course, relates only to the discovery and conviction for offences. It does not answer the question whether conduct of the type indulged in on 26 June 2016 ever occurred.
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33. There is a body of evidence and a variety of statements of persons who attest to the fact that the Applicant is someone who behaved in a manner that was out of character. The many and numerous references are strong evidence in the Applicant’s favour. Of particular significance is the statement provided by his sister-in-law‘s husband who was present for some of the transaction on 26 June [Balwinder Singh. TB1.24]. He provides in his statement a picture of the Applicant which demonstrates the behaviour was quite out of character.
34. Furthermore, the report of Ms Dawson, psychologist, is from a different perspective, and supportive of the Applicant’s case. I accept this evidence.
35. Since the incident, the Applicant and his wife attended a number of anger management counselling sessions. This, in the Tribunal‘s view, is evidence both of remorse and intention to pursue a more appropriate family life and relationship.
36. I have already concluded the husband and wife were both untruthful about the details of the assault. Although the husband was legally represented, he chose to forego what he said were inaccuracies and untruths in the facts placed before the Court in order to have the apprehended violence order lifted and to have the matter resolved so that he could return to his wife. I am satisfied that this was his motivation.
37. As to how the Tribunal should deal with the finding that both parties were untruthful in their evidence, I have come to the conclusion that it should be noted, however, I have decided I will not take it into account in assessing the Applicant’s character.
THE QUESTION OF CHARACTER DISCUSSED
38. I am satisfied that in an otherwise blameless life, the parties, who I consider on the objective evidence to have had an uncontroversial marriage, on the date in question became involved in a verbal and physical argument. The aggressor was the husband and the incident went on for some time.
39. Domestic violence in all its manifestations is to be abhorred in our society. The Applicant in this matter was the perpetrator of such violence on his wife. It is relevant, however, to consider the circumstances of the commission of the offences and the context of the violence in the overall relationship between the parties. It is of singular importance in this
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case that on the facts which I have found this type of behaviour occurred on one occasion only. Furthermore, I am entirely satisfied that the Applicant’s wife is desirous of living again together with her husband. I am further entirely satisfied that the wife has neither been suborned, nor in my opinion, is she frightened into this attitude by fear or pressure from the Applicant. I take the view that the wife’s attitude to her husband and his application for the Visa, while no doubt having positive implications for herself, nonetheless is genuine and well disposed towards her husband.
40. I accept that the incident was caused by a variety of stressors which came together on that occasion and which included the illness of their young child, financial strain, and pressure about the upcoming question of their visas. The offending behaviour was deeply situational and on my assessment of the facts, it is highly unlikely that the concatenation of particular circumstances would arise again.
41. I find the Applicant behaved in an entirely out-of-character manner. Furthermore, I am satisfied that there has never been this type of behaviour in the past or since. I pause to note that for two years since the offence was dealt with, the Applicant had been on a Good Behaviour Bond. It is largely irrelevant to my mind that the Bond may have acted as some form of control over his behaviour. The fact is that during that two year period and since, there has been no reported incident or behaviour by the Applicant which would
breach the Bond.
42. The Applicant has been in immigration detention for some time until the hearing of this matter. His wife visits him a number of times a week and speaks by telephone every day with him. This is supportive of a mutually affectionate relationship.
43. I have therefore come to the conclusion that although the Applicant’s behaviour was objectively serious on a single occasion, he was a person up until that time, of good character.
44. Good character and its converse are not immutable. I find on all the evidence that the Applicant, apart from one out-of-character occasion of behaviour, is possessed of good character.
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CONSIDERATION OF THE CHARACTER TEST
45. Bearing in mind the requirements and considerations of section 501(6) and Direction 65, I am satisfied that the Applicant’s overall behaviour, having regard to what I have said above, is not such that he should be regarded as a person not of good character. To put the position in a positive sense, I am satisfied that on all the evidence the Applicant should be regarded as a person of good character.
46. Further, as to the question of whether the Applicant poses a risk as a future offender, (section 501(6)(d)), including offences of any kind whatsoever, I am comfortably satisfied that on the evidence, there is the most fanciful risk of the Applicant committing an offence of a similar kind or indeed any events in the future. It is in my opinion the most remote of possibilities.
47. Specifically, I regard the risk of the Applicant engaging in criminal conduct in Australia and/or the risk of him harassing, molesting, intimidating or stalking any person as less than a minimal or remote chance of the Applicant engaging in any such conduct or any conduct specified in paragraph 6 of the Direction.
CONCLUSION AND ORDERS
48. I am satisfied that the Applicant is of good character. There is, therefore, no need to consider further implications and discretionary questions pursuant to Direction 65.
49. The finding of the Tribunal is that the Applicant satisfies the character test.
50. The Tribunal orders that the Delegate’s decision of 28 February 2018 be set aside. In substitution, the Tribunal orders that the discretion to refuse to grant the Applicant a Student (Temporary)(Class TU) visa is not to be exercised.
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I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC
…………………..[sgd]………………………………………….
Associate
Dated: 30 July 2018
Date(s) of hearing: 24 July 2018
Counsel for the Applicant: Ms N Laing
Solicitors for the Respondent: Mr A Keevers
One Response
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