Anand and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2021] AATA 4437

Anand and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4437 (30 November 2021)

Division:GENERAL DIVISION

File Number:          2021/6947

Re:Subha Anand

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:30 November 2021

Place:Melbourne

The Tribunal, under section 43(1)(c)(i) of the Administrative Appeals Tribunal Act 1975 –

a)sets aside the decision of the delegate dated 21 September 2021; and

b)substitutes a decision that the mandatory cancellation of the Applicant’s Class BS Subclass 801 Partner visa be revoked under section 501CA(4)(b)(ii) of the Migration Act 1958.

........................................................................

Senior Member D. J. Morris

Catchwords

MIGRATION – applicant is citizen of the Republic of India – mandatory cancellation of Class BS Subclass 801 Partner visa – applicant concedes does not satisfy statutory character test – consideration of ministerial direction – Direction No. 90 – primary considerations – protection of Australian community – very serious offence – very low risk of re-offending – best interests of minor children in Australia – expectations of the Australian community – other considerations – extent of impediments if removed – impact on victims – links to Australian community – any other considerations – decision under review set aside with direction that visa cancellation be revoked

Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 33, 33A, 37, 38AA
Crimes Act 1958 (Vic), s 318

Migration Act 1958 (Cth), ss 197AB, 499, 500, 501CA

Cases

Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337

FYBR v Minister for Home Affairs [2019] FCAFC 185

Secondary Materials

Adult Parole Board of Victoria – Parole Manual (2020 Ed.)
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Publishing, 5^th ed, 2013)
Migration Act 1958 – Direction No. 90 – direction made under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (made 8 March 2021/commenced 15 April 2021)
VicRoads – Getting your licence back – Information for drink and drug-driving offences (December 2019)

REASONS FOR DECISION

Senior Member D. J. Morris  

30 November 2021

BACKGROUND

1. The Applicant in this matter, Ms Subha Anand, is a citizen of the Republic of India. She first arrived in Australia in 2007 as the holder of a student visa. She was subsequently granted a Class BS Subclass 801 Partner visa in 2014. This latter visa was cancelled on 26 June 2019 by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Minister’) under section 501(3A) of the Migration Act 1958 (‘the Act’).

2. Ms Anand was invited to make representations to the Department of Home Affairs (‘the Department’) about revocation of the cancellation of her visa.  She made representations in response to that invitation. On 21 September 2021, a delegate of the Minister was not satisfied that there is “another reason” under section 501CA(4)(b)(ii) of the Act why the cancellation of the visa should be revoked. Ms Anand has brought that decision to the Tribunal for review, as she is entitled to do under section 500(1)(ba) of the Act.

   HEARING

3. A hearing was held on 16 and 17 November 2021. The Applicant was represented by Ms Tanya Skvorstsova of counsel, instructed by Ms Tegan Weir of Clothier Anderson Immigration Lawyers. The Respondent was represented by Mr Adam Cunynghame of Sparke Helmore Lawyers. Ms Anand appeared by video link under section 33A of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’). She gave evidence and was cross-examined. The following witnesses were also called by the Applicant and gave oral evidence: Ms Jade Trinh (a friend); Mr Konark Anand (her brother); Mr Jasdeep Sanghera (her husband); Mr Usman Habib (a friend); Ms Chetali Anand (her sister-in-law); Mrs Bharti Anand (her mother). Mr Patrick Newton, forensic psychologist, also gave evidence as an expert witness.

4. The Respondent submitted the following documents, which were admitted into evidence:

   (a)A volume of collated ‘GD’ documents, being the documents the basis for the delegate’s decision (Exhibit R1);

   (b)A volume of supplementary ‘GD’ documents (‘SGD’), being documents produced under summons (Exhibit R2);

   (b)The Economist – article ‘How did India beat covid-19’ (Exhibit R3); and

   (c)ABC news – article – ‘India may be reaching endemicity after emerging from second COVID-19 wave’, 6 September 2021 (Exhibit R4).

5. The Applicant submitted the following documents, which were admitted into evidence:

   (a)Statement of the Applicant, dated 21 October 2021 (Exhibit A1);

   (b)Birth certificate of AO, dated 3 May 2017 (Exhibit A2);

   (c)Marriage certificate solemnized on 14 January 2017 (Exhibit A3);

   (d)Letter from Department of Home Affairs to Mr Jasdeep Sanghera, dated 10 September 2019 (Exhibit A4);

   (e)Loan transaction report of Mr Jasdeep Sanghera, dated 27 September 2021 (Exhibit A5);

   (f)Sentencing Advisory Council – Sentencing Snapshot – Culpable driving causing death – April 2021 (Exhibit A6);

   (g)CNBC article – Coronavirus and Delta variant in India, dated 23 July 2021 (Exhibit A7);

   (h)Vox article – ‘The long road to India’s unparalleled pandemic catastrophe’, dated 19 August 2021 (Exhibit A8);

   (i)Reuters article – ‘Beg, borrow, steal’: the fight for oxygen among New Delhi’s hospitals’ (Exhibit A9);

   (j)Aljazeera article – ‘Scientists warn over Indian COVID ‘variant of concern’ report’ – 7 May 2021 (Exhibit A10);

   (k)      Statement of Jade Trinh, dated 20 October 2021 (Exhibit A11);

   (l)Statement of Konark Anand, dated 21 October 2021 (Exhibit A12);

   (m)Statement of Jasdeep Sanghera, dated 21 October 2021 (Exhibit A13);

   (n)Statement of Usman Habib, dated 22 October 2021 (Exhibit A14);

   (o)Statement of Chetali Anand, dated 21 October 2021 (Exhibit A15);

   (p)     Statement of Bharti Anand, dated 22 October 2021 (Exhibit A16);

   (q)Letter of instruction to Mr Patrick Newton from Clothier Anderson Immigration Lawyers, dated 9 July 2019 (Exhibit A17); and

   (r)Psychological Assessment Report by Mr Patrick Newton dated 3 October 2019 (Exhibit A18).

6. The Tribunal also had regard for written Statements of Facts, Issues and Contentions submitted by the Applicant (‘ASFIC’) and the Respondent (‘RSFIC’).

   LEGISLATIVE FRAMEWORK

7. In conducting this review, the Tribunal is not reviewing the decision of the delegate. The Tribunal is making a fresh decision based on the law and the information before it. In addition, both parties are entitled to make submissions and provide further information to the Tribunal as it conducts the review, including information that was not before the delegate.

8. Because section 500(1)(ba) refers to the power of review as relating to all of subsection 501CA(4), it is clear that two questions are potentially before the Tribunal. The first question that must be addressed in section 501CA(4)(b)(i) is whether Ms Anand fails the character test in the Act. If it is found that she does not, then the cancellation of the visa is set aside, and that is the end of the matter.

9. If, however, the Tribunal finds that Ms Anand does fail the character test, then there is a second question the Tribunal must consider – is there “another reason” (in terms of the wording in section 501CA(4)(b)(ii)) that the cancellation of her visa should be revoked.

10. The Tribunal must evaluate the factors for and against revocation. In Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337, the Federal Court said, at [38]:

    The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. In this instance the Minister acted in accordance with that construction of the section. He did not apply the wrong test.

11. If the Tribunal, at the end of its consideration, considers that the discretion is enlivened that there is “another reason”, then it must revoke the mandatory cancellation of the visa.

12. It was agreed by the parties during a directions hearing, and confirmed during the substantive hearing, that the 84^th day in respect of this application is 15 December 2021. Pursuant to section 500(6L) of the Act, if the Tribunal has not made a decision on or before that day, the reviewable decision would be affirmed.

    THE MANDATORY CANCELLATION OF THE VISA

    Does the Applicant have a ‘substantial criminal record’?

13. On 1 December 2017, at the County Court of Victoria before His Honour Judge Smallwood, Ms Anand was convicted of the offence of Culpable driving causing death. She was sentenced to a term of imprisonment of seven years with a non-parole period of four years.  Her driver licence was cancelled, and she was disqualified from driving for a period of 24 months.

14. Based on these facts, I find that Ms Anand does not pass the character test under section 501(3A)(a) of the Act through the operation of subsections (6)(a) and (7)(c). I am satisfied that the Applicant has a “substantial criminal record” because she has been sentenced to a term of full-time imprisonment for a period of 12 months or more. That satisfies the ‘first limb’ required for the mandatory cancellation of a visa under this section of the Act.

15. Ms Anand is incarcerated at Dame Phyllis Frost Centre, which is a women’s prison managed by the Victorian Department of Corrections. At GD, pp 232-233 is a prisoner indent report and I am satisfied the Applicant was serving a sentence of full-time imprisonment on the date her visa was cancelled, thus satisfying section 501(3A)(b) of the Act, the ‘second limb’.

16. I note that it was common ground between the parties that the Applicant did not satisfy the character test.

    Is there ‘another reason’ to revoke the mandatory cancellation of the visa?

    Direction No. 90

17. Section 499 of the Act provides that the Minister may make directions which a person or body must consider in performing a function or exercising a power under the Act. Any such direction cannot be inconsistent with the Act, but a decision-maker must, under section 499(2) of the Act, comply with a relevant direction. On 8 March 2021, the Minister made a direction under section 499 – Direction No. 90 (hereafter referred to as ‘the Direction’) commenced on 15 April 2021. The Tribunal must have regard to the contents of the Direction in considering whether there is “another reason” to revoke the mandatory cancellation.

18. The Direction requires that some considerations must be taken into account, where they are relevant. However, the Direction does not contain the Tribunal’s task; it must look at any other relevant factor in the circumstances of the case.

    Primary consideration – Protection of the Australian community

    The nature and seriousness of the conduct

19. The Applicant has been convicted of two offences. As mentioned above, on 1 December 2017 she was convicted in the County Court of Victoria of the offence of Culpable driving causing death.  On the same day, she was convicted of driving a motor vehicle with a blood alcohol concentration (‘BAC’) exceeding .05. In relation to this latter offence, His Honour Judge Smallwood recorded a conviction and discharge. The Judge cancelled any driver licence held and disqualified Ms Anand from obtaining a driver licence for a period of 15 months. It would appear from the sentencing remarks that on the culpable driving charge His Honour imposed a 24-month driving disqualification, so the 15-month period was subsumed into that.

20. His Honour noted that Ms Anand pleaded guilty to the offence after forensic investigations had been concluded and took account that the plea saved witnesses being called and the additional anxiety and distress that would be caused to the family of the deceased person if there had been a trial.

21. In terms of the circumstances leading up to the offences, the Judge said:

    At around 2 am on Sunday 10 January 2016 you were drinking with your then boyfriend, now husband, and some others. You became upset with him related to a conversation involving his ex-wife. You left the premises that you were at on your own in your car. You were apparently told, or certainly asked, not to drive. You left and travelled for approximately 2.7 kilometres and were approaching the intersection of Palmers Road and Sayers Road in Williams Landing. You were driving east on Sayers Road.  You drive into the right turn lane at the intersection with Palmers Road and impacted [sic] the rear of a Hyundai that was waiting to turn right. Your speed was estimated to be in the order of 115 kilometres per hour. That is a 70 kilometre per hour zone.

    The impact from behind caused the Hyundai to travel across the eastbound lanes, where it came to rest against a fence. Your vehicle continued to travel into the path of an Audi which was travelling west, and your vehicle and [the] other collided. That caused your car to rotate and come to rest on the centre median strip.

    The Hyundai was being driven by [NP – name redacted], a 19-year-old girl. She died as a result of the injuries sustained in that collision. The driver of the Audi was not injured and you suffered minor injuries.

    At the Royal Melbourne Hospital a blood sample was taken approximately two hours later, which ultimately showed a percentage of .159.  I sentence on that basis. There is always a case in these matters, an area, or can be an area of conflict with the experts, but it is agreed that I sentence on that basis. The charge of culpable driving is put on that basis and also the gross negligence in travelling at a speed some 45 kilometres over the limit and colliding with the rear of a stationary motor vehicle. I have indicated that I have dealt with the summary matter already.

    There is no evidence on the road itself of any braking. There is apparently some oral evidence, or verbal evidence, from a witness that may suggest that you did but, in any event, it was of little consequence in the end if it did happen.

    Earlier that day [NP] had spoken to a friend about attending a 21^st birthday party.  She told that friend that she would pick up a friend and drive her home to Melton, which she did.  She was invited to stay overnight but decided to drive home, and it was on the way home that the impact occurred.

    Immediately after the impact you were spoken to and you told witnesses and police that arrived at the scene that you were not the driver and a friend named Simal Singh was driving but that you did not know his address. Despite grave suspicions to the contrary, I will sentence – I could not be satisfied beyond reasonable doubt that that was a deliberate intended attempt to avoid detection. You were clearly heavily intoxicated, on the materials before me, and I have to work on the basis that you were in a state of shock. The only relevance of that is in the sense that, as counsel pointed out, on the face of it, detracts from what is later expressed to be remorse, but I feel that in this situation I could not sentence on that basis.

    …

    The Crown’s submission is that this is a serious example of culpable driving and a significant sentence of imprisonment is warranted, and your counsel does not demur from that proposition.

    The offending is, in my view, a very serious example of culpable driving. It incorporates not only the driving at a grossly excessive speed, but doing so in a situation where you must have been aware of your level of intoxication. It calls for the application very much of general deterrence, which is often the principal sentencing purpose in these matters. Specific deterrence is somewhat more debatable in that the prospects of your ultimate rehabilitation should be good and the risk of you reoffending in such a way, I would have thought, would be low. 

22. His Honour then read into the Court record victim impact statements from the mother, sister and grandparents of the young woman killed in the collision. These were produced in the SGD. They make affecting reading.

23. The Judge noted that Ms Anand had, at the time of passing sentence, a seven-month-old child (who will be called in these reasons ‘AO’).  His Honour accepted that the prospect of deportation was a factor which would make gaol harder than it would be for other prisoners.  He noted that prior to the collision the Applicant had been suffering from depression and anxiety in the context of domestic violence in relation to a former marriage.

24. Paragraph 8.1.1 of the Direction requires the Tribunal to have regard to certain conduct.  One of the categories stipulated at 8.1.1(a)(i) is “violent and/or sexual crimes”. The other categories listed in 8.1.1(a) and (b) are not relevant in the circumstances. Ms Anand has not been convicted of any sexual crime but the principal offence of which she was convicted, Culpable driving causing death, may be classified as a crime of violence, because it ended the life of another person.

25. The Tribunal must have regard for the frequency of offending and any trend of increasing seriousness, the cumulative effect of repeated offending, whether the non-citizen has provided false or misleading information to the Department or whether the person has re-offended since being formally warned or otherwise made aware by the Department of the possible consequences regarding her immigration status. 

26. Ms Anand did not have any previous offending other than a citation for speeding (SGD, p 440). That offending occurred in June 2014 and the nature of the offence was exceeding a posted speed limit “by 10 km/h or more but less than 15 km/h”. It resulted in a penalty of three demerit points. When asked about this offence, the details of which had been produced from VicRoads records under summons, the Applicant did not remember it, but did not deny it.

27. Putting this infraction aside, there is no ‘frequency’ of offending nor any trend of increased seriousness. There is no evidence before the Tribunal of any untruthful information being provided by the Applicant to the Department nor of any previous immigration warning, in writing or otherwise.

28. The Respondent drew the Tribunal’s attention to the wording of a sentence in paragraph 5.2(5) which sets down the Principles in the Direction:

    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…revoking a mandatory cancellation.

29. There is no doubt that the nature of the Applicant’s conduct and the harm that would be caused if it were to be repeated is at the very highest level of gravity. The offence of Culpable driving causing death is found in section 318 of the Crimes Act 1958 (Vic) (‘Victorian Crimes Act’):

    (1)         Any person who by the culpable driving of a motor vehicle causes the death of another person shall be guilty of an indictable offence and shall be liable to level 3 imprisonment (20 years maximum) or a level 3 fine or both.

    Note

    An offence against this subsection is a category 2 offence under the Sentencing Act 1991. See section 5(2H) of that Act for the requirement to impose a custodial order for this offence unless the circumstances set out in paragraphs (a) to (e) of that subsection exist.

    (1A)       The standard sentence for an offence under subsection (1) is 8 years.

    Note

    See sections 5A and 5B of the Sentencing Act 1991 as to standard sentences.

    (2)         For the purposes of subsection (1) a person drives a motor vehicle culpably if he drives the motor vehicle –

    (a)Recklessly, that is to say, if he consciously and unjustifiably disregards a substantial risk that the death of another person or the infliction of grievous bodily harm upon another person may result from his driving; or

    (b)Negligently, that is to say, if he fails unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed in all the circumstances of the case; or

    (c)Whilst under the influence of alcohol to such an extent as to be incapable of having proper control of the motor vehicle; or

    …

    (Emphasis added.)

1. The sentencing Judge said that the Applicant’s offending was a “very serious example of culpable driving”. His Honour noted that the offending incorporated not only driving at a grossly excessive speed but also in a situation where Ms Anand must have been aware of her level of intoxication.

2. A synonym for the word ‘culpable’ is ‘blameworthy’. That is, that a person convicted of the offence the Applicant has been has driven in a manner which is worthy of blame for one or more of the stipulated reasons set out in section 318(2) of the Victorian Crimes Act. In this case, the ingredients of the offending included heavy intoxication such as not to be capable of controlling the car she was driving, and excessive speed.

3. The Applicant submitted a Victorian Sentencing Advisory Council ‘Sentencing Snapshot’ about Culpable driving causing death which relevantly states:

   The offence covers homicides caused by the culpable driving of a motor vehicle.  This offence is committed when a person drives a motor vehicle negligently, recklessly or while under the influence of drugs or alcohol and causes the death of another person.  Culpable driving causing death is an indictable offence that carries a maximum penalty of 20 years’ imprisonment and/or a fine of 2,400 penalty units.

4. If the offence is committed after 28 October 2018, the Sentencing Snapshot goes on to say that it is what is described as a Category 2 offence which means the Courts must impose a custodial sentence except in particular circumstances.

5. The document also records statistical information about the sentencing approaches by Victorian Courts in relation to persons convicted of this offence. The median term of imprisonment for the financial year period 2015-16 to 2019-20 was seven years and six months. It can objectively be concluded, therefore, that Ms Anand’s sentence was just below the median sentence imposed for this offending in Victoria during that survey period. That is all that this statistic tells us. It is not of much use, because each case turns on its own detailed circumstances. Judge Smallwood stated in his sentencing remarks, at paragraph [50] that he would set an opportunity for Ms Anand to be considered for parole at “a time that would be earlier than might otherwise be the case”, for reasons relating to the prospect of deportation at the end of sentence and because of the child AO.

6. Judge Smallwood made clear that the principal sentencing purposes in offences of this nature is general deterrence and remarked, at paragraph [16] of his reasons, that specific deterrence is more debatable in that he felt the prospects of Ms Anand’s ultimate rehabilitation should be good and the risk of her re-offending in such a way would be low.

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

7. The Direction requires the Tribunal to consider the nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct, and the likelihood of them so doing. The Tribunal must consider information and evidence on the risk of re-offending and evidence of rehabilitation.

8. In his sentencing remarks, Judge Smallwood noted that Ms Anand had a good work history and that she had been, in his words “a worthwhile member of the community up until that night”. The Judge referred to a report of Mr Newton, forensic psychologist (which was at GD, pp 90-97), and accepted that there was no pathology that would act as a potential criminogenic factor to precipitate further offending. 

9. His Honour accepted the clinical opinion of Mr Newton that Ms Anand was suffering a major depressive disorder and not Post-Traumatic Stress Disorder (‘PTSD’) and took those symptoms into account when passing sentence. He acknowledged Ms Anand’s previously good character and her work record, her plea of guilty and her remorse and shame.

10. His Honour also said, when referring to Mr Newton’s conclusions (GD, p 39):

    He [i.e. Mr Newton] goes on to say that your risk of reoffending is low, that he bases that on [the fact that] your current involvement with the legal system has been very upsetting and distressing for you; you express, and I accept this, profound sense of guilt and remorse; that you do have the close support of your husband and family; that you have a stable history and engagement in work and community activities; and there is no pathology that would act as a potential criminogenic factor to precipitate further offending.

    So the situation in the ultimate is that your prospects for rehabilitation should be good if you receive the appropriate assistance, and the risk of you reoffending in this way should be low if you receive the appropriate assistance.

11. Mr Newton was asked to re-examine Ms Anand and provided an updated psychological assessment report for the Applicant’s immigration proceedings. He examined her on 19 August 2019 and noted he had previously seen her on 13 and 30 November 2017 in relation to the assessment he prepared for submission to the County Court.

12. Mr Newton applied a Risk-Needs-Responsivity framework in his clinical assessment of Ms Anand. He found that she had a criminal history (which is self-evident). He further found she had no personality disorder, that she disavows criminality and there were no indications of criminal associates.  He noted, in terms of family, she had a currently stable relationship but earlier interpersonal difficulties unrelated to the offending. He recorded that Ms Anand had good employment skills and a stable employment history. Mr Newton noted that drinking was involved in the offending but recorded that Ms Anand was now abstinent. He said that Ms Anand was not involved in any dysfunctional recreational activities.

13. The Tribunal notes Ms Anand’s oral evidence that she was not a regular consumer of alcohol. She said that she would have a social drink, she estimated, “once every two or three weeks”. Ms Anand’s evidence was that on the night in question, she was preparing food in the kitchen while her fiancé (now husband, Mr Sanghera) and another friend were in the sitting room listening to music and watching videos. Both men were mixing drinks for her and themselves and delivering these drinks to her in the kitchen. She told the Tribunal she had “two to three” drinks, which she said were mixed drinks containing vodka. She said she did not eat that evening and had not eaten during the day.

14. Mr Sanghera in his evidence said that, when they had an argument and Ms Anand took up her car keys and made to leave the house, he regretted he did not take the keys from her.  He said that both he and the friend present urged her not to drive, and he has regretted not being more forceful, in preventing her from driving, ever since. 

15. I am somewhat troubled by the Applicant’s evidence that she had only “two or three” drinks.  While I accept that alcohol can affect the metabolisms of different people extremely variably, I find some of the evidence given by the Applicant about that night unconvincing. She said she had not eaten all day, yet her oral evidence was that when the friend telephoned to suggest he come to their house to mark her husband’s birthday (which was the following day), she and her fiancé went to a supermarket to get food and other provisions for the celebration. She said she was preparing food. The collision occurred at 1.30 a.m.  Ms Anand said she does not remember all the details of the evening, probably because of the shocking event that occurred. I think it is likely that the Applicant did have at least some food that evening. I am also inclined to the view that Ms Anand had more than “two or three” drinks over the several hours of that evening. When asked directly by the Tribunal about the size of the glasses, the Applicant said they were high tumblers, but narrow ones.  Accepting that vodka is a particularly potent liquor, the evidence before me from the sentencing remarks is that the Applicant had a BAC of .159. 

16. Mr Cunynghame drew the Tribunal’s attention to a report of Dr O’Dell, Senior Physician at the Victorian Institute of Forensic Medicine, who was asked to provide an opinion on the Applicant’s blood alcohol concentration at the time of the collision.  Dr O’Dell expressed the following opinion (SGD, p 71):

    1. Ms ANAND was driving after having consumed alcohol.

    2. She had a total body content of alcohol at the time of the collision equivalent to a blood alcohol concentration between 0.183% and 0.207%. The actual BAC while driving may have been lower than this range by an indeterminate amount that cannot be calculated on the basis of the limited information available to me.

17. The Tribunal acknowledges Dr O’Dell’s professional expertise, but the sentencing Judge noted there was disagreement between the parties before him about the level of intoxication at the time of the collision.  Judge Smallwood sentenced on the basis that the BAC was .159.  That is more than three times the legal limit. The Tribunal prefers to rely on the finding of His Honour than what is, on the author’s own opinion, an equivocal conclusion by Dr O’Dell.

18. Mr Newton, in providing his updated psychological assessment, wrote (at paragraph 44):

    This review indicates that Ms Anand has made good progress in addressing the criminogenic factors extant in her life so that she would now be assessed to be at Low Risk for general recidivism. It should be noted that this is the lowest possible rating on an actuarial assessment and that it would not be possible for Ms Anand to score lower on this instrument in the future. No significant risk factors are identified as being current in Ms Anand’s case. While there is a clear need for her to receive ongoing mental-health care to help her to overcome the depression and anxiety that continue to trouble her, no targets remain extent with regard to forensic treatment.

    (Emphasis in the original.)

19. In his oral evidence, Mr Newton expanded upon what he meant in this paragraph. He said that he meant that the person does not need actively to manage the risk but would need some management.  Mr Newton said that there would be nothing to be gained from a person participating in programmes and “self-management of the risk can continue”. When asked how the risk of Ms Anand re-offending would compare to a person who has never had such a serious car accident, Mr Newton said:

    You start from a different perspective. [The Applicant] is comparatively able to manage life in the same way – probably more cautious and more risk-averse because of her personality.

20. Counsel for the Applicant asked to comment on Ms Anand’s plan to engage in counselling with Ms Fowler, a counsellor from WestCASA with whom she has developed a relationship during counselling sessions in custody, Mr Newton said:

    There is a lot of relevance in that. It is clear from [the counsellor’s] reports that there is a clear treatment plan to address the trauma which was instrumental in disturbing the marital relations with her husband. Rapport with a clinician is vital.

21. The Tribunal accepts that there is evidence before it of domestic violence in the Applicant’s first marriage and that some residual mental health effects had continued after she separated from, and then divorced, her first husband. These appear to have largely evaporated when she met and commenced a relationship with Mr Sanghera. They met, he said, in 2015 and he had moved into live with her in her house shortly before the principal offence. The argument that occurred that night was in the context of Mr Sanghera extricating himself from his own previous marriage and, he said, inadvertently calling Ms Anand by the name of his former spouse, which (understandably) upset her.  There was a period of about two years between Ms Anand being charged for the culpable driving offence and her sentencing. Mr Sanghera was asked about this period in his evidence. He said it was “horrible” because they both knew that a prison term loomed. Nonetheless, they decided to get married, which they did in January 2017.  

22. In addition, Ms Anand fell pregnant and gave birth to AO. Both her evidence and Mr Sanghera’s was that the pregnancy was unplanned. Mr Sanghera said that the Applicant briefly contemplated a termination because of the situation she was in, however her mother and mother-in-law both strongly implored her not to do this. There is no evidence before me that the Applicant’s marriage is not, as Mr Newton described it, a stable one. Mr Sanghera was genuine in his evidence that he is keen for his wife to re-join him, as a business co-owner but, in his words, more importantly as his partner.

23. The Direction requires me, at paragraph 8.1.2, to consider the risk to the Australian community should the non-citizen commit further offences. The Respondent urged me to note that the Direction states that some conduct and the harm that it would cause, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable (see paragraph 8.1.2(1)).

24. There are several factors in the circumstances of this Applicant that incline me to conclude that the risk of further offending is “low” in Mr Newton’s assessment, and as he put it in his oral evidence, as low as a professional assessment can describe it. These factors include that Ms Anand has no prior criminal history. The usual features for persons who have served a prison term of 12 months or more, such as previous interactions with the law, illicit drug use, criminal associations or overwhelming financial pressures are not present in this case. 

25. The Respondent’s representative asked Mr Newton, given his use of the term “alcohol abuse”, in his report, how he would define it. Mr Newton said the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition defines it as “problematic use of alcohol on more than one occasion”. He said in his assessment, after interviewing the Applicant on three occasions, that there had been complications owing to the time it was taking for Ms Anand’s then new partner to extricate himself from his first marriage, which meant in this context she was more likely to drink “problematically”. The Tribunal asked Mr Newton direct questions about this. He responded:

    The threshold of ‘alcohol abuse’ is set quite low. She has told me she has drunk alcohol very rarely in Australia. It wasn’t a habitual part of her social activities. With conflict with her second husband it had increased and such heavy drinking was not uncommon around that time.

26. When Mr Newton was asked about the Applicant’s evidence about precisely how much alcohol she had consumed that evening, Mr Newton said that memory in such a situation is inherently unreliable, because of the trauma of what then occurred.

27. Because of Mr Newton’s evidence, based on his interviews with the Applicant in a clinical setting and his reference to “such heavy drinking” not being uncommon at that time, I am more inclined to the view that the Applicant was in fact consuming more alcohol, if perhaps not regularly, in late 2015 and early 2016 than her evidence would suggest. However, that does not mean I do not accept Ms Anand’s evidence that she was not other than a periodic social drinker. Furthermore, I have no reason not to accept her evidence that she has been abstinent since the day after the collision. This period includes a period in the community from early January 2016 to entering custody on 30 November 2017 prior to sentencing the following day, and then imprisonment. The Applicant’s prison records were produced under summons and before me. There was no evidence of any alcohol consumption in the prison environment (nor indeed any other adverse conduct by Ms Anand as a prisoner). Even if I am not entirely convinced about the Applicant’s alcohol consumption on the evening of the accident, or in the lead up to it, there is no evidence of alcohol playing any part in any other conduct of Ms Anand, apart from the commission of the principal offence.

28. Counsel for the Applicant urged the Tribunal to take account that Ms Anand does not have a driver licence (SGD, p 444), and has no plans to drive if her visa is restored and she is allowed to stay in Australia.  Ms Anand in her evidence said that shops and medical facilities and AO’s kindergarten are in walking distance from her house in a Melbourne suburb, and that she will use public transport if she needs to travel further afield during the day when her husband is at work. 

29. The Tribunal, as it is empowered to do by section 33(1)(c) of the AAT Act, considered VicRoads’ advice to former licensed drivers whose driver licence was cancelled by a Court. The advice, contained in the publication Getting your Licence Back – Information for drink and drug-driving offences, sets out that a person in Ms Anand’s position would have to undertake several steps to be issued with a new licence to drive in Victoria. That varies according to the magnitude of the offence. In Ms Anand’s case it would require attendance at an Intensive Drink and Drug Driver Program comprising three group sessions of three hours, an individual counselling session and the installation of an alcohol interlock device on any vehicle the person drives, for a stipulated period. In the case of a driver convicted of the offence of Culpable driving causing death, the publication states that the person would also have to apply to the Magistrates’ Court of Victoria for a Licence Eligibility Order, where that Court would consider all the circumstances before ordering that a person was, or was not, eligible to be issued a driver licence.

30. I note Ms Anand’s evidence that she wants to participate in drink driving educational sessions to tell other drivers about her experience. I also take into account the regulatory steps the Applicant would have to undertake before she was issued with a driver licence, and the reciprocal arrangements between the Australian states and territories relating to eligibility for a licence for such an offender. 

31. The Tribunal finds that this primary consideration bifurcates in terms of the weight that should be applied. In terms of the first part of the consideration, the nature and seriousness of the offence, it weighs heavily against revoking the mandatory cancellation of the visa, because the actions of the non-citizen directly led to the death of a person. In terms of the second part of the consideration, the risk of re-offending, the Tribunal finds that it weighs strongly in the other direction, because the risk of Ms Anand re-offending in any way, given her lack of criminal history and the professional assessment of her criminogenic needs, is very low, even possibly negligible.

    Primary consideration – Family violence committed by the non-citizen

32. Both the parties submitted this matter was not engaged. The Tribunal agrees with those submissions and therefore determines that this primary consideration weighs neutrally.

    Primary consideration – Best interests of minor children in Australia affected by the decision

33. The Direction required the Tribunal to make a determination about whether non-revocation under section 501CA of the Act is, or is not, in the best interests of a child (i.e., a child who will be aged under 18 years at the time the decision is made) who is affected by the decision. 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.

34. In this matter, the Tribunal identifies two relevant minor children in Australia whose interests are affected. The first is the Applicant’s son, AO, and the second is the nephew of Ms Anand, who will be called ‘AU’.

    The Applicant’s son

35. AO was born in March 2017, before Ms Anand was sentenced in relation to the offences which triggered the visa cancellation. In her personal circumstances form (GD, p 71), the Applicant describes AO as, in a weekly pattern, living four days with her, and three days with his father, Mr Sanghera. This pattern has been significantly affected from around March 2020 with the advent of the Covid-19 pandemic whereby visitation ceased at the Dame Phyllis Frost Centre and young children of prisoners were not permitted to move to and from the centre, because of rules designed to minimise the spread of the coronavirus.  Consequently, AO has been completely in the care of his mother, in the prison, for the last 20 months.

1. In addition, the Covid-19 restrictions banned visitation to the prison for the bulk of the period since March 2020, so AO, apart from not being able to leave the Dame Phyllis Frost Centre and return, has (except on one or two occasions) been unable to see his father other than electronically.

2. The Tribunal has before it several reports from the prison about Ms Anand and her interaction with AO. All these reports reflect a nurturing and positive relationship between mother and son. In addition, the oral evidence from others with knowledge of the family consistently gave the impression of a loving and attentive mother. The Direction requires the Tribunal to consider the extent to which a non-citizen is likely to play a positive parental role in the future in relation to a minor child. There is no evidence before me that Ms Anand would play other than a completely positive role in the upbringing of AO. 

3. I must also consider the likely effect of any separation on a child, taking into account the ability of a non-citizen to maintain contact in other ways, and whether another person plays a parental role in the life of the child.

4. The effect on AO will largely hinge on whether, if the decision is affirmed, he goes with his mother to India. The evidence before the Tribunal from the Applicant was that, in the event her visa was not restored, she would be likely to go to India and take AO with her. This was largely because of his age and because of their bond, and because his father works full-time running his transport business. Mr Sanghera when asked in the hearing whether AO would go to India in this eventuality, said he would not, centrally because he would be a migrant in that country and, as such, unable to enrol in other than an expensive fee-paying school. Before the lockdown commenced in March 2020, Mr Sanghera was caring for AO for three days a week, AO was then with the Applicant in the Mother and Baby Unit at the prison for four days a week. Mr Sanghera’s evidence was that his mother and his mother-in-law were coming from India to stay with him and help care for AO for periods of several weeks in a ‘relay’ arrangement. This arrangement, too, has been affected by the pandemic with the closure of Australia’s borders.

5. In terms of paragraph 8.3(4)(e) of the Direction, Mr Sanghera plays a parental role in relation to AO, as his father. He has played a direct role in caring for AO – with assistance from his mother and mother-in-law – since Ms Anand commenced her sentence in December 2017 when AO was almost nine months old. On the evidence, this shared arrangement only ceased because of the pandemic visitation restrictions introduced by the Dame Phyllis Frost Centre.

6. The non-parole period applicable to Ms Anand ends on 30 November 2021 but the Tribunal is aware that the Adult Parole Board of Victoria has a general policy of not granting parole to non-citizen prisoners whose visas have been cancelled, even if the prisoner has otherwise been deemed eligible for parole. 

7. The Parole Manual of the Adult Parole Board of Victoria relevantly says, at paragraph 8.5:

   In considering parole for a prisoner who is subject to deportation, the Board needs also to have regard to the following factors.

   Whether the prisoner is seeking to overturn the cancellation of their visa or to challenge their removal from Australia. The Board will ordinarily avoid paroling such a prisoner until they have exhausted such challenges. This is because if the Board were to parole such a prisoner, they would go into Federal immigration detention pending the resolution of their matter. While in Federal immigration detention and unlawful non-citizen is in practice unable to comply with the ordinary requirements of parole and may be moved to a facility outside Victoria and hence outside the Board’s jurisdiction.

   …

8. The choices facing Ms Anand if her visa is not restored were canvassed in her oral evidence at the hearing. In this this eventuality, the Applicant would either complete her head sentence of seven years in custody or, alternatively, Ms Anand said she understood she could elect to be voluntarily removed from Australia. Mr Cunynghame, for the Minister, submitted that there were other options available to the Minister, but he did not have any instructions about the likelihood of them being exercised. The Tribunal is aware one option is that the Minister can make a residential determination under section 197AB of the Act but does not have any information on whether that would be in contemplation. In any event, speculation is inutile in the absence of any clear indication from the Department.

9. Ms Anand told the Tribunal that, under the ‘Living with Mum’ programme administered by the Victorian Department of Corrective Services (which is the programme which allows approved prisoners with a child to be accommodated with that child), children may not stay within the prison estate after they reach the age of five years. AO turns five in March 2022.  After that time, if the Applicant is still incarcerated, other arrangements would have to be made for AO’s care.  AO would then be of school age.  His father would be able to undertake some care. However, the evidence is that Mr Sanghera works long hours running his transport business, so additional care arrangements would have to be made. The Applicant’s brother and sister-in-law said that their intention to move from Western Australia to Melbourne in the event Ms Anand is released into the community would change if the Applicant is deported. Ms Chetali Anand said that they were planning to move to Victoria “in December” but this would mean her giving up her employment in Western Australia. It is not clear to me what their plans would be if Ms Anand stayed in prison to complete her head sentence.

10. The Tribunal notes that AO is an Australian citizen. If the Applicant does not have her visa restored, she must as an illegal non-citizen be removed to her country of citizenship, India. Section 198 of the Act sets out the requirements for removal “as soon as reasonably practicable” if an illegal non-citizen asks in writing to be removed, or if a mandatorily cancelled visa of a non-citizen is not restored. This would be affected, as set out above, by whether she is (a) granted or (b) elects to accept parole.

11. The Tribunal makes a determination that it would be in the best interests of AO for the mandatory cancellation of the Applicant’s visa to be revoked. The impact upon him would be far-reaching. The apparent alternatives are as follows. The Applicant’s visa is not restored, and AO accompanies his mother back to India, where he would be a migrant. Mr Sanghera’s evidence was that this would affect his ability to enrol in public schools and that other schools would be prohibitively expensive. The Tribunal has no other evidence about this but is satisfied that as an Australian citizen AO would be subject to whatever requirements the Indian Government imposes. AO might be in a slightly more beneficial position being a minor with an Indian citizen mother (noting Mr Sanghera is an Australian citizen). 

12. The second alternative is that on attaining the age of five, AO leaves the care of his mother and returns to live full-time with his father, and the family makes relevant care arrangements. On completion of her head sentence, the Applicant in this scenario would be returned to India, and choices would then have to be made about the care of AO. The third alternative is that the mandatory cancellation is revoked, and Ms Anand is granted parole to live at home under whatever conditions the Adult Parole Board of Victoria imposes until the completion of her sentence.  In this third alternative AO would be reunited with his father and would live with his parents in a normal way. 

    The Applicant’s nephew

13. Ms Anand’s nephew, AU, is aged nine.  He lives with his parents in Perth, Western Australia.  He came from India to Australia, aged five, with his parents in 2018 when his mother, Ms Chetali Anand, obtained employment there. They hold permanent resident visas.

14. Ms Chetali Anand said that AU has been to Melbourne two or three times to see family and that his cousin, AO, has visited them in Perth, brought across from Victoria by his grandparents. She said that AU has a very good relationship with AO and treats him more like a brother than a cousin. She said that AU last saw AO in Melbourne in late 2019 or early 2020, she was not sure of the precise date but told the Tribunal it was before the first pandemic lockdown. Ms Chetali Anand said on that occasion they were able to make a face-to-face visit to the Applicant.

15. The Tribunal makes a determination that it would be in the best interests of AU for the mandatory cancellation of the Applicant’s visa to be revoked. This would allow the Applicant’s materteral relationship to continue, especially if her brother, sister-in-law, and AU relocate to live in Melbourne. The Direction requires me to consider whether others perform parental roles in the life of the relevant minor child.  In AU’s case, plainly his parents perform those roles and responsibilities.  Nonetheless, because a likely consequence of the cancellation of Ms Anand’s visa is that AO would accompany her to India, that would adversely affect the cousinly relationship between AU and AO, which is not in the best interests of either boy.

16. Overall, the Tribunal finds that this primary consideration weighs very heavily in favour of revoking the mandatory cancellation of the visa, because of the significant and direct adverse effect on AO of being separated, in a geographical sense, on the one hand from his mother, or on the other from his father. Contact by electronic means would be possible but that is a very poor substitute for human contact for a child, especially one in formative development.

    Primary consideration – Expectations of the Australian Community

17. Paragraph 8.4 of the Direction 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 of 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, of the following kind:

    …

18. The Direction goes on to list specific sorts of conduct that raise character concerns, at paragraph 8.4(2)(a) to (f). The only one of these that could be relevant to Ms Anand’s criminal history is paragraph 8.4(2)(c) which relates to “serious crimes”, inclusive of violent crimes, against women. However, while the principal offence of the Applicant was, in the result, a serious crime against a woman, it was not, “in that characterisation”, intentional. Ms Anand did not know the victim of her reckless driving was a woman until after the event.

19. What is relevant is the wording of paragraph 8.4(2), that non-revocation may be appropriate simply because the nature of the offence is such that the Australian community would expect the person should not continue to hold a visa.

20. The expectation of the Australian community is taken to be a ‘norm’. The word ‘norm’ means of a ‘standard’ or ‘pattern or type’. A previous version of the Direction (Direction No. 65) contained generally similar wording to paragraph 8.4 and was considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’).

21. The Court held that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are ‘deemed’; they are what the executive government has declared are its views, not what a decision-maker, including this Tribunal, may seek to draw from some other evaluative process.  Direction No. 90, issued after FYBR, imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which I take to be an acknowledgement of the approach taken by the plurality of the Court in FYBR. Therefore, while the expectations of the community are ‘deemed’ to weigh against an applicant, the relative weight will be affected by the circumstances in the individual case, including the seriousness of the offending or other conduct.

22. This principal offence of Ms Anand caused the death of a young woman motorist who, on the facts before the Court, did not contribute in any way to the collision that caused her death.  The Applicant was driving with around three times the legal limit of BAC in her blood, after she had either been asked, or urged, by the people with whom she had been socialising, not to drive. Her direct reckless conduct had the gravest consequence: it caused the death of a 19-year-old who was about to embark on a career in nursing.

23. I consider that the expectation of the Australian community, on these stark facts, would be very strongly against restoring the Applicant’s visa. The weight of this expectation may be very slightly ameliorated by the fact that Ms Anand had no prior offences in Australia, or anywhere else, and notably no driving offences other than one relatively minor speeding infringement. The fact that the Applicant has a young son who was born in Australia and whose life might be significantly affected (which is dealt with more explicitly elsewhere in these reasons) would also be a factor that slightly affects the weight.

24. However, given the grave consequences that resulted from the offence committed by the Applicant, I find that this primary consideration weighs heavily against revoking the mandatory cancellation of the visa.

    OTHER CONSIDERATIONS

    International non-refoulement obligations

25. In the event the decision was affirmed, the Applicant would be repatriated to India. There were no submissions from the Applicant that international obligations were engaged, and the Respondent submitted that this consideration is not relevant in this matter.

26. The Tribunal determines that this consideration weighs neutrally.

    Extent of impediments if removed

27. Paragraph 9.2 of the Direction requires the Tribunal to consider the extent that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards. The Direction requires this consideration to be undertaken in the context of what is generally available to citizens of that country, in this case India. The Tribunal must take into account:

    (a)       The non-citizen’s age and health;

    (b)       Whether there are substantial language or cultural barriers; and

    (c)       Any social, medical and/or economic support available to them in that country.

28. The ASFIC submitted that Ms Anand would be deprived of all current family support if she were return to India and that her husband would have to travel between the two countries, which would place strain on the marriage and unsettle AO. The ASFIC also suggests that the financial security of Mr Sanghera would be affected because he would not have the assistance of his wife, and that Ms Anand’s employment prospects would be significantly limited when compared to those in Australia. Whilst these might all be fair submissions to make, they are unresponsive to this part of the Direction. They more relevantly could be considered under the consideration relating to links with Australia.

29. There is no evidence that Ms Anand is not physically healthy. She mentioned during the hearing that she uses an inhaler, but apart from reference to asthma there was no other specific information before me of any current physical medical condition. In respect of the Applicant’s mental health, the Tribunal accepts Mr Newton’s diagnosis that she suffers from “Major Depressive Disorder, in partial remission” (Exhibit A18, paragraph 45(3)). It is further accepted that she had established a continuing therapeutic relationship with a counsellor and hopes to re-establish that relationship for further counselling with the same person if released into the Australian community. 

30. Ms Anand first came to Australia in 2007, aged 20. She undertook all her schooling in India, including attending Alliance Francaise at the conclusion of her secondary education. She told the Tribunal that she worked briefly in India, after completing school, for an aunt who owned a beauty salon, in the manner of work experience. She then came to Australia to further her education, which she has done. Having spent the first 20 years of her life in India and having regularly returned between 2007 and 2016, the Tribunal concludes that she would have no practical difficulties re-assimilating if returned. Ms Anand did not advance evidence of any language or cultural barriers that would be present, in relation to her, though she did note that AO speaks only a few words of Hindi. 

31. It is accepted that the medical services and healthcare likely to be available in India are not comparable to what is available in Australia, but that is not the yardstick which the Direction requires the Tribunal to apply. There is no evidence before me that Ms Anand would not have the same access to such services as any other Indian citizen. 

32. The list of evidence tendered contains several documents relating to the coronavirus pandemic in India, principally from the Applicant, but including two items from the Respondent. No oral submissions were made by the parties that this was a factor to which the Tribunal should direct special attention. The Tribunal surmises this is possibly because the situation in India in this regard is improving, and because the Covid-19 pandemic has a universal impact, worldwide. In any event, because of the way this part of the Direction is couched, the Tribunal must look at the situation for the non-citizen through the prism of other citizens of their home country, unless there were submissions before me that there was some special impact on the Applicant. There were no such submissions.

33. In her evidence by video-link from India, the Applicant’s mother, Mrs Bharti Anand, reiterated that it was her and her husband’s firm intention to emigrate to Australia as soon as they could secure flights. She said they had not yet placed their house on the market but intended to do so. When asked directly by the Tribunal would they still move to Australia if the Applicant’s visa was not restored and she returned to India, Mrs Anand said that was their plan. She explained that she and her husband had both been through a long process, commencing in 2015, to obtain permanent resident visas, which was also expensive, and that her son and grandchildren were both in Australia.

34. Ms Anand said that the only relative to whom she could turn for assistance in India is her mother-in-law, who lives in a small town in a rural area. She said this town did not have good internet connections and contact with Australia would therefore be affected. I am not entirely convinced that this would be the Applicant’s only option.

35. The Applicant has other relatives in New Delhi who may be able to offer her assistance, whether familial, financial, or even in terms of temporary accommodation. An example is Mr Anil Kumar Gera, who practises as a lawyer in New Delhi and presented a character testimonial to the County Court in relation to the sentencing (SGD, p 26). He was fully aware of the offence and the circumstances and is the Applicant’s uncle. Another school friend who lives in New Delhi also submitted a written testimonial (SGD, p 27).   

1. The Applicant has attained good academic qualifications in Australia, including a Bachelor of Business (GD, pp 142-143) and has successfully completed several other courses. The ASFIC contended that these qualifications would not be recognised in India. Given the flourishing international student activity with many Indian nationals studying courses in Australia and returning to India to carry on their working careers, in the absence of specific evidence, I am disinclined to accept that contention.

2. Overall, given that the prospects for employment are unclear and it may be that the Applicant would be accompanied by AO which would affect her ability to obtain employment, the Tribunal finds that this consideration weighs slightly in favour of revoking the mandatory cancellation of the visa.

   Impact on victims

3. Paragraph 9.3 of the Direction requires the Tribunal to take into account the impact of any decision on victims of a non-citizen’s criminal behaviour or, more appositely in this case, family members of the victim. The Tribunal has read the victim impact statements in the papers before it. They are from the victim’s mother (SGD, pp 126-129 and 137-140); sister (SGD, pp 128-129); grandmother (SGD, p 115); grandfather (SGD, pp 120-121) and a friend (SGD, pp 141-142). The Tribunal has also read a newspaper article which records the anguish of family members of the victim. These have all been taken into account in my appreciation of the seriousness of the offence in relation to the primary consideration of the protection of the Australian community.

4. I interpret this part of the Direction to mean that I must have information on the views of family members where they are aware of the Applicant’s immigration status and these proceedings. That is, they must be aware of the visa cancellation and the application to have that cancellation revoked. 

5. While a newspaper article (GD, pp 204-205) indicates that the victim’s mother and sister were at the Court for the sentencing and would have heard the Judge’s comments about the prospect of deportation of the accused, there was no more recent information on any views they might have.

6. Accordingly, I find that this consideration carries neutral weight.

   Links to the Australian community – (i) strength, nature, and duration of ties

7. This part of the Direction requires the Tribunal to consider the impact on the decision on Ms Anand’s immediate family members in Australia where those family members are Australian citizens, permanent residents or people who have the right to reside indefinitely in Australia.

8. The interests of AO are dealt with earlier. Relevant people who would be affected and who should be considered in this part of the Direction are the Applicant’s husband, who became an Australian citizen in 2019; the Applicant’s brother and sister-in-law who reside in Australia and Ms Anand’s parents who, although they do not get to reside in Australia have been frequent visitors and have each been granted Contributory Parent (Subclass 143) visas, which give them permanent residency.

9. Both Mr Konark Anand, the Applicant’s brother, and his wife, Ms Chetali Anand, gave oral evidence that they would be significantly affected if the Applicant had to return to India.  Even if they were not to relocate to Melbourne, the Tribunal accepts that they had frequent contact with Ms Anand before her imprisonment and, noting that Ms Chetali Anand has known the Applicant since their school days, I conclude that her permanent absence from Australia would have a significant and adverse effect on them both.

10. The Applicant’s parents, as mentioned earlier, decided to initiate the process to emigrate to Australia in 2015, mainly to support their daughter in the wake of the break-down of her first marriage. Ms Anand’s brother and his wife and son followed suit in 2018. She has only one sibling, so when her parents are able to travel here, all her direct family will be living in Australia.

11. Ms Anand had been in Australia for some nine years at the time of her offending. She had worked here in several jobs. From 2012 to 2015 she worked in customer relations for an internet provider company. From 2013 to 2017 she worked for a major international oil company, also in customer relations. She had to resign from this job because of her being charged with the principal offence. The evidence was that from 2016 to 2017 Ms Anand worked as a bookkeeper and undertaking administrative tasks for her husband’s transport company. She was formerly a director of that company but said she had to relinquish that position owing to difficulties obtaining signatures for necessary documents when she was incarcerated. 

12. Mr Sanghera said that apart from maintaining accounts, Ms Anand was also responsible for registration and maintenance records for his fleet of trucks and for human resource arrangements with his sub-contractor drivers. He said that he relied on her because he trusted her, and she could convey what he wanted to the drivers in an accurate manner.  Mr Sanghera agreed that he also retained a firm of accountants, but the Tribunal accepts his evidence that Ms Anand played an important part in the operations of what was, in effect, their family company. This transport company employs around eleven local sub-contractor drivers. 

13. There was also evidence before the Tribunal of Ms Anand undertaking some volunteer activities in relation to the local Sikh Temple and Sikh community. The Tribunal considers that Ms Anand has developed strong and productive ties with a range of people in the Australian community in the years she has resided in this country and made a productive contribution to the national economy prior to her incarceration.

14. Apart from the oral evidence of Mr Habib, there were also testimonials in the GD and SGD from other friends of the Applicant who reside in Australia in relation to these migration proceedings and the matter before the County Court. The Tribunal concludes these persons would be affected, to perhaps varying degrees, if the Applicant was returned to India.

    Links to the Australian community – (ii) impact on Australian business interests

15. This part of the Direction also requires the Tribunal to consider any impact on Australian business interests, noting that an employment link would generally only be given weight where the visa decision would significantly compromise the delivery of a major project or delivery of an important service in Australia.

16. In the papers before the Tribunal were financial statements and other details relating to the transport company owned and operated by the Applicant and her husband. The evidence was that it began only a few years ago with Mr Sanghera as the sole driver, and he has since acquired vehicles and now employs around eleven other drivers. Mr Sanghera told the Tribunal of its growth and that the operation has been significantly affected by the pandemic. He also gave evidence that Ms Anand helped with the books and accounts and other administrative tasks, and liaison between him and the drivers.

17. Without detracting from this, I am not convinced that the general wording in paragraph 9.4.2 of the Direction should be departed from.  While there would be some effect on the company and accepting Mr Sanghera’s evidence that he has found it increasingly difficult to juggle his day-to-day operations with the administrative duties, I do not consider the information before me rises to the level contemplated in the Direction. There would be detriment to the business if Ms Anand was deported, but the business has continued to expand since she has been incarcerated. I do not conclude that the delivery of a major service or project would be significantly compromised.

18. Overall, I find that this consideration weighs relatively strongly in favour of revoking the mandatory cancellation of the Applicant’s visa. Ms Anand has strong family and friendship links with Australia and has made a productive contribution from the time of her arrival until the beginning of 2016. She has studied successfully and worked in several jobs, contributing to the national economy.  

    SUMMATION

19. As mentioned earlier, the Tribunal is not confined to the contents of the Direction and should take into account any relevant representation in a case of which it has notice, in terms of whether the discretion is enlivened. No such other matter has been identified.

20. The Tribunal has considered all the relevant considerations in the Direction. In respect of the primary consideration relating to the protection of the Australian community from criminal or other serious conduct, as I say above, the weight of this consideration splits apart into two significantly competing assessments. The nature and seriousness of the offending conduct was accepted by both parties as at very serious level. The Tribunal places it at almost the most serious level because it involves reckless action directly causing the death of a person. The risk of re-offending in this manner is, I conclude, almost completely negligible. The risk of re-offending in a general manner is, I separately conclude, very low, given that the Applicant had no prior criminal history, nor does she have any of the usual precursor elements which might incline a person to re-offend.

21. The primary consideration relating to family violence is on the evidence not engaged. The primary consideration relating to the best interests of affected minor children in Australia weighs heavily in favour of the Applicant, because the interests of her son AO are deeply affected, and I would say adversely in terms of maintaining the integrity of the family unit.  The primary consideration relating to the expectations of the Australian community weighs against Ms Anand, and strongly so because of the grave nature of the offence.

22. In respect of the other considerations, that relating to international non-refoulement obligations is not engaged. The primary consideration relating to the extent of impediments if removed has been found to weigh slightly in favour of revocation. The primary consideration relating to impact on victims weighs neutrally for the reasons explained above. The primary consideration relating to links with the Australian community weighs relatively strongly in favour of the Applicant.

23. The Tribunal has weighed the relevant considerations individually and cumulatively. Any consideration in the Direction can be determinative. The Respondent drew my special attention to the second sentence of paragraph 5.2(5) of the Direction. It is my conclusion that the harm that would be caused if the conduct were to be repeated would justify not revoking the mandatory cancellation. However, because of the nature of this offence and the factual background of the Applicant, the likelihood of that happening is completely remote. Had Ms Anand had a history of drink-driving, for instance, my assessment would be very different. But there is no such history or any evidence that way. Her only other recorded offence in the summonsed documents is one speeding offence in 2014, involving driving over the posted limit but not excessively so.

24. The Tribunal’s task is to consider whether the Applicant, as a non-citizen, should be permitted to remain in Australia or be removed, unlikely ever to return. This task is not a penal one. The Applicant has faced the Court and was given a substantial prison sentence.  If her visa is restored, she will likely be granted parole (based on her good conduct in prison) and will be required to adhere to whatever reporting and other conditions the Adult Parole Board impose for the next three years. Otherwise, that parole may be rescinded, and she would return to prison.  In addition, although she has expressed no intention to drive, I note the Applicant cannot obtain a driver licence until she has undertaken several regulatory steps, set out in detail above, and faced a Court hearing in relation to such a request. If Ms Anand drives again in Australia, it would not be for some years.

25. Care must be taken in using a newspaper article as any form of proof; however, I note in the newspaper article reporting on Ms Anand’s sentencing (GD, p 205), the victim’s mother is recorded as saying, outside the Court, that the sentence imposed “was fair. I feel that justice has been served – she’s owned up to what she’s done.”

26. After careful consideration, the Tribunal finds that, principally, the best interest of the Applicant’s son and, secondarily, her links with family in Australia combine to be determinative in this matter, coupled with my finding that there is a very low risk of the Applicant re-offending in any manner if she remains in Australia.

27. The Tribunal finds in this case that the preferable decision in terms of the exercise of the discretion provided in section 501CA(4)(b)(ii) of the Act is that this discretion is enlivened, and I am satisfied that there is consequently, in the wording of the Act, “another reason” to revoke the mandatory cancellation of the visa.

    DECISION

28. The Tribunal set aside the decision of the Respondent’s delegate dated 21 September 2021, and in its place substituted a decision that the mandatory cancellation of the Applicant’s visa be revoked.

I certify that the preceding 127 (one hundred and twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

..................[sgd]......................................................

Dated: 30 November 2021

Dates of hearing:	16 and 17 November 2021
Advocate for the Applicant:	Ms Tanya Skvorstsova
Solicitors for the Applicant:	Clothier Anderson Immigration Lawyers
Advocate for the Respondent:	Mr Adam Cunynghame
Solicitors for the Respondent:	Sparke Helmore Lawyers