Bhullar and Minister for Immigration and Citizenship [2010] AATA 529 (15 July 2010)

Last Updated: 15 July 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 529

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/2028

GENERAL ADMINISTRATIVE DIVISION )

Re Gurlal Preet Singh BHULLAR

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal Mr RP Handley, Deputy President

Date 15 July 2010

Place Sydney

Decision The decision under review is affirmed.

...............[sgd].............
Mr RP Handley
Deputy President

CATCHWORDS

IMMIGRATION – visa cancellation – character test – Direction No 41 – primary considerations - protection of the Australian community - seriousness of the conduct - the length of time that he was ordinarily resident in Australia prior to engaging in criminal activity - best interests of the child

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RELEVANT ACT

Migration Act 1958 (Cth): s 501

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CITATIONS

Re Puafisi and Minister for Immigration and Citizenship [2009] AATA 689

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OTHER AUTHORITIES

Direction [no. 41] - Visa Refusal and Cancellation under section 501: paras 10, 11

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REASONS FOR DECISION

15 July 2010

Mr RP Handley, Deputy President

1. Mr Bhullar has applied to the Tribunal for the review of a decision of a delegate of the Minister for Immigration and Citizenship to cancel Mr Bhullar’s visa on the ground that he did not pass the ‘character test’ because he has a substantial criminal record.

BACKGROUND

2. Mr Bhullar is an Indian citizen born in 1976 who came to Australia in 1998 on a student visa when he was aged 21, not long after he was first diagnosed with Multiple Sclerosis (MS). He has lived in Australia since then. In September 2000, Mr Bhullar married an Australian citizen with whom he has a son born in July 2001. Mr Bhullar separated from his wife in December 2007 and they were divorced in 2008.
3. Mr Bhullar failed to complete the course for an Advanced Diploma in Marketing for which he was studying and was in Australia unlawfully from 7 November 2000. On 18 March 2004, he applied for a protection visa which was refused, a decision affirmed on a review by the Refugee Review Tribunal (RRT). An application for Ministerial intervention in June/July 2004 was unsuccessful. Mr Bhullar also applied unsuccessfully for a number of bridging visas. His application for a review of one of the decisions by the Migration Review Tribunal (MRT) resulted in the Tribunal affirming the decision. Appeals against the RRT and MRT decisions to the Federal Magistrates Court were dismissed, as was a further appeal to the Federal Court in respect of the protection visa. However, following a second application for ministerial intervention, on 31 October 2006, the Minister agreed to grant Mr Bhullar a Class UK Partner (Temporary) Subclass 820 (Spouse) visa.
4. Mr Bhullar was first charged with a criminal offence in Australia on 24 May 2001, that of shoplifting with a value of less than $2,000, on conviction of which he was fined $100 on 28 June 2001. On 6 July 2001, he was charged with custody of a knife in a public place, two counts of shoplifting, each with a value of less than $2,000, and larceny, on conviction of which he was placed on a 12-month good behaviour bond on 10 October 2001. On the same date, he was also convicted of larceny with a value of less than $2,000 and of two more counts of shoplifting, one with a value of less than $2,000 and one of unspecified value (charge dates 15 July 2001, 25 July 2001 and 26 July 2001), for which he was sentenced to 80 hours community service and also placed on the good behaviour bond. On 30 March 2002, he was charged with two further shoplifting charges (one with a value of between $2,000 and $5,000 and the other of less than $2,000), on conviction of which he was sentenced to a fixed term of three months imprisonment on 4 July 2002. On that day, he was charged with another count of larceny and with possession of a prohibited drug, on conviction of which he was sentenced, respectively, to a fixed term of three months imprisonment and a fine of $100 (plus court costs) on 25 July 2002. The two fixed three month terms were served concurrently commencing on 4 July 2002 and expiring on 3 October 2002.
5. On 25 November 2002, Mr Bhullar was charged with two counts of larceny, common assault and being armed with intent to commit an indictable offence, on conviction of which in Parramatta District Court he was sentenced on 10 September 2003 to four months, six months and two years imprisonment (non-parole period 12 months) respectively. It appears that he was released from prison after his non-parole period ended on 24 November 2003.
6. On 12 September 2007, Mr Bhullar was charged with three shoplifting offences, each with a value of less than $2,000, of which he was convicted and for one of which he was fined $250. The other two shoplifting convictions were taken into account in sentencing him for ‘assault with intent to rob armed with offensive weapon’ for which he was charged on 1 November 2007 and on conviction sentenced in Sydney District Court, Surry Hills, to three years and six months imprisonment (non-parole period 18 months) on 6 June 2008.
7. On 24 February 2008, Mr Bhullar was charged with ‘refuse/fail to pay for a meal supplied on licensed premises’ for which he was fined $150 (plus court costs) on 7 May 2008. He said the incident took place in October 2007 before he was detained on 1 November 2007.
8. On 30 April 2009, Mr Bhullar was released on parole. On 4 May 2009, he was charged with possession of a prohibited drug and, on 7 May 2009, his parole order was revoked and he was returned to prison to serve the balance of his sentence. On 29 May 2009, he was sentenced to two months imprisonment in respect of the possession charge, served concurrently with the balance of his previous sentence.
9. By letter dated 18 February 2009, the Department informed Mr Bhullar that consideration was being given to cancellation of his visa and inviting submissions. On 6 March 2009, the Department received Mr Bhullar’s acknowledgement of receipt of the Notice, his completed Personal Details Form, and his letter in response. Mr Bhullar was also invited to and responded to various other matters raised by the Department through the period May 2009 to January 2010.
10. By letter dated 5 May 2010, the Department notified Mr Bhullar of the cancellation of his visa and, on 13 May 2010, he was provided with a statement of reasons for that decision of which he acknowledged receipt on that day. Mr Bhullar has applied to the Tribunal for a review of the decision.

RELEVANT LAW AND POLICY

11. Section 501(2) of the Migration Act 1958 (Cth) (the Act) provides that the Minister may cancel a visa if “the Minister reasonably suspects that the person does not pass the character test” and “the person does not satisfy the Minister that the person passes the character test”. Section 501(6) provides that a person does not pass the character test if the person has a substantial criminal record. ‘Substantial criminal record’ is defined in s 501(7) as, among other things, having been sentenced to a term of imprisonment of 12 months or more, or to two or more terms of imprisonment where the total of those terms is two years or more.
12. Mr Bhullar has been sentenced to terms of imprisonment exceeding 12 months on two occasions. Thus, he does not pass the character test.
13. It was therefore open to the Minister to cancel Mr Bhullar’s visa. In exercising this discretion, the decision-maker must apply Direction [no. 41] - Visa Refusal and Cancellation under section 501 of the Act (Direction No 41). Direction No 41 contains a number of ‘primary’ and ‘other’ considerations to which the decision-maker must have regard when considering whether to exercise the discretion to refuse or cancel a visa.
14. The primary considerations in Direction No 41 are set out in paragraph 10(1):
    10. The primary considerations
        • (1) In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:
          • (a) the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
          • (b) whether the person was a minor when they began living in Australia;
          • (c) the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
          • (d) relevant international obligations, including but not limited to:
            • (i) the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
            • (ii) the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
              
15. These considerations are elaborated on by a range of factors to which regard must be had. There are also a number of ‘other’ considerations that, where relevant, must be taken into account but, generally, in accordance with Direction No 41 paragraph 11(2), they should be given less weight than the ‘primary’ considerations. Those ‘other’ considerations are discussed below.

PRIMARY CONSIDERATIONS

16. The ‘primary’ considerations relevant in Mr Bhullar’s case are the protection of the Australian community, the length of time that he was ordinarily resident in Australia prior to engaging in criminal activity, and the best interests of any children who may be affected by the cancellation of his visa. These considerations are addressed below.

THE PROTECTION OF THE AUSTRALIAN COMMUNITY

17. Direction No 41 identifies two factors relevant to this consideration: the seriousness and nature of the relevant conduct, and the risk that the conduct may be repeated.

The seriousness of the conduct

18. With regard to the seriousness of Mr Bhullar’s conduct, the Tribunal notes that paragraph 10.1.1(1) states:

Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community.

19. Examples of offences and conduct that are considered serious are listed in paragraph 10.1.1(2) and include offences involving violence such as assault, robbery and serious theft, which are offences for which Mr Bhullar has been convicted. Paragraph 10.1.1(3) states that “The sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community”, and regard must be had to the number and nature of offences, the period between offences and the time elapsed since the most recent offence. Among the factors to be considered pursuant to paragraph 10.1.1(4) are any judicial comments made about the person, parole assessments and any relevant mitigating factors.
20. In his sentencing remarks on 6 June 2008, Judge Geraghty of the District Court of NSW noted that Mr Bhullar said that when he attempted to rob the National Australia Bank at Oxford Street, Surry Hills on 1 November 2007, armed with his son’s (extremely realistic) toy pistol, he was under the influence of ecstasy. Dr Stephen Allnutt (a forensic psychiatrist) concluded that, at the time, Mr Bhullar was experiencing symptoms consistent with drug-induced hypermania/mania in the context of suffering marital and financial problems. Referring to a series of medical reports and certificates, Judge Geraghty said:

It appears the offender has been diagnosed as having a cerebella dysfunction which would be consistent with a diagnosis of multiple sclerosis. He also appears to be suffering from epilepsy, and Dr Allnutt has diagnosed depression and anxiety. He observed that the offender’s functioning was considerably impaired because of his multiple sclerosis and mood disorder, and that while he had been in custody, he had been exposed to significant stressors. He was manifesting symptoms consistent with depressive disorder, characterised by depressive moods and associated disturbance and symptoms of anxiety.

21. The Judge noted that Mr Bhullar said that he had experienced symptoms of MS while on remand in prison – a tremor of the head and neck - as a result of which he had been called names and assaulted. He had been assaulted four times in prison, the first and most serious incident being in January 2008 when he sustained a fracture of his nose and bones in his face. Judge Geraghty commented:

There is no doubt that he has quite compromised health issues involving MS, epilepsy, hepatitis A and psychological problems.

22. The Judge noted that while there was no actual violence in Mr Bhullar’s offence, there was a threat of violence and the victim, from whom he demanded $50,000, being a teller in a bank, was in a vulnerable position. When the teller realised Mr Bhullar was serious, “she became very tight in the chest, like as if she was in shock, and really scared. She hit the panic button”. In sentencing Mr Bhullar, the Judge applied a 10 percent discount because of his guilty plea and a further 15 per cent because the plea was early. He also took into consideration Mr Bhullar’s “really significant health problem which, in my estimation, will make his custodial sentence significantly harsher and uncommonly onerous”, and noted that Mr Bhullar “has also expressed quite considerable remorse and sorrow, and has been able in his evidence to identify with the feelings of the victim”.
23. The Department has obtained a copy of the Pre Release Report dated 27 January 2009 prepared by the Probation and Parole Service prior to Mr Bhullar’s release on parole on 30 April 2009. The Report states that while Mr Bhullar had been divorced from his wife, “she remains supportive of him citing their only child as the reason for ongoing contact”, and noting that Mr Bhullar had had regular contact with them. With regard to Mr Bhullar’s health, the Report states:

Mr Bhullar stated and his sister confirmed that the offender was diagnosed in 1997 with Multiple Sclerosis (MS) in India prior to coming to Australia. A letter from the neurologist dated 28 May 2008 confirms Mr Bhullar’s problematic diagnosis of epilepsy and multiple sclerosis.
Perusal of Mr Bhullar’s Justice Health records indicated he is on drug treatment for epilepsy, multiple sclerosis and has been on anti psychotic medication to manage his sleep disorder and anxiety.

24. The Report comments that “Mr Bhullar appeared to have difficulty accepting responsibility for the offence” and “attempted to blame his ex-wife for wanting money and not having money to visit his son on the day of the offence”. Nevertheless, he “conceded that his actions may have been frightening for the victims and stated he was sorry for any harm done”. With regard to Mr Bhullar’s behaviour while in prison, the Report states that Mr Bhullar’s ex-wife had complained to Correctional Centre staff that he had asked her to “traffic ‘pot’ to him in the gaol”. However, when asked about this, Mr Bhullar said it was a joke. There was “no evidence of drug use in custody and Random Urine Drug Screen conducted on 10 January 2008 was negative for illicit and non-prescribed drugs”.
25. With regard to the risk of reoffending, the Report states that Mr Bhullar:

is suitable for a medium to high level of intervention by the Service, commensurate with the assessed risk and identified criminogenic needs. The risk factors identified [sic] as substance abuse and his medical condition, which affects his motor neuro coordination and treatment compliance.

26. The Report stated that his nominated accommodation options were regarded as unsuitable including proposed short-term accommodation provided by the Sikh Temple. On release, he would need “support by specialists from MS Australia”. While release on parole was supported, additional conditions to his parole were recommended including that he totally abstains from alcohol, not use or be in possession of prohibited drugs or substances, and undertake testing for drug and/or alcohol use.
27. The Tribunal notes that on his release on parole, Mr Bhullar was accommodated at the Campbelltown Community Offender Support Centre. A Police Fact Sheet created on 4 May 2009 states that police were called to the Centre after staff smelt “the aroma of cannabis” inside Mr Bhullar’s room and asked him to turn out his pockets, when they found 0.60 grams of cannabis in a tobacco pouch. While, initially, Mr Bhullar said he got the cannabis at his wife’s house, he later told police that he bought it at the Court Tavern in Campbelltown on 2 May 2009. As noted above, Mr Bhullar was charged with possession of a prohibited drug and, on 7 May 2009, his parole was revoked.
28. The other very serious offence of which Mr Bhullar was convicted is that of being armed with intent to commit a robbery on 25 November 2002, for which he received a sentence of two years imprisonment with a non-parole period of 12 months. This incident involved Mr Bhullar using a syringe containing blood to threaten a bar attendant in the bottle shop of the Argyle Street Hotel in Parramatta and then stealing a bottle of vodka. In her sentencing remarks on 10 September 2003, Judge Tupman of the District Court of NSW commented that while the bar attendant was fearful for her safety and immediately left the bottle shop, there was no actual physical contact. The Tribunal notes that in a statement given to the police dated 25 November 2002, the bar attendant said that when she saw the blood-filled syringe, she immediately “thought AIDS” and “was in fear for my safety and did not want to be pricked with it”.
29. The Judge noted that Mr Bhullar had been diagnosed with MS, commenting, “It would appear that the effects of his illness are not extreme but nonetheless are obvious”. The Judge accepted that Mr Bhullar was “generally remorseful and contrite” but found him prone to exaggerate his situation. She considered Mr Bhullar’s prospects of rehabilitation “to be relatively good” and noted his early guilty plea, which the Judge took into account in sentencing Mr Bhullar.
30. In my view, the two offences involving armed robbery for which Mr Bhullar received significant prison sentences were very serious. Both involved the threat of violence and belong to the category of offences that are of special concern to the Australian community. The offence committed on 1 November 2007 is relatively recent. The other offences committed by Mr Bhullar are concerned with shoplifting or theft, and possession of a prohibited drug. The prohibited drug is marijuana or cannabis which Mr Bhullar said he started using shortly after arriving in Australia and which he finds beneficial for his MS because it helps him relax. Mr Bhullar’s criminal record, detailed under the heading ‘Background’ above, spans a period from 2001 to 2009.

The risk that the conduct may be repeated

31. With regard to the risk that the conduct may be repeated, paragraph 10.1.2 of Direction No 41 requires that consideration be given to Mr Bhullar’s previous general conduct and total criminal history and, in particular, to any recent history of convictions, evidence of rehabilitation and evidence as to whether he has breached any judicial orders including bail and parole orders.
32. I have referred above to the Pre Release Report prepared by the Probation and Parole Service prior to Mr Bhullar’s release on parole on 30 April 2009. There are two other Probation and Parole Service reports, dated 25 July 2002 and 21 July 2003, included in the Department’s evidence. The latter stated that Mr Bhullar “could benefit from participating in this Service’s programs addressing his alleged drug abuse, managing his anger, coping in society and individual counselling as needed”.
33. There is no evidence of any significant rehabilitation programs undertaken by Mr Bhullar. In terms of drug use, he said his taking ecstasy in 2007 just prior to his attempted bank robbery was the first and only time he has used this drug. He described his actions in attempting to rob the bank as “stupid”. While I accept that he may not use ecstasy again, there is a strong possibility that he will use marijuana again because he considers it beneficial for his MS.
34. Mr Bhullar’s record is of a string of minor criminal offences along with the two serious offences over a period of nine years. He has also not abided by some judicial orders: the offences committed in March and July 2002 were committed while Mr Bhullar was on a good behaviour bond; the possession of a prohibited drug (marijuana) on 4 May 2009 was just a few days after he was released on parole, a specific condition of which, it appears, was that he must not use or be in possession of a prohibited drug. Yet according to the police record, Mr Bhullar said he went to a hotel and purchased marijuana two days later. Mr Bhullar was also on bail in respect of shoplifting offences committed on 12 September 2007 when he committed the attempted armed robbery on 1 November 2007.
35. Mr Bhullar has four recorded breaches of prison discipline, three of which in 2003/2004 are very minor. The most recent breach, on 25 January 2009, is for failure to supply a urine sample. Mr Bhullar said he was unable to provide the sample because of the effects of his MS. He had not been taking drugs.
36. Ms Hooper, for the Minister, also pointed to Mr Bhullar’s breaches of Australia’s immigration laws as evidence of his disregard for Australia’s laws. Mr Bhullar became an unlawful non-citizen from 7 November 2000 after his student visa expired. Mr Bhullar said he failed his course for non-attendance. He did not attend because, after a couple of months, he found that what he was being taught he already knew, having worked in marketing in India before coming to Australia. He acknowledged that he breached the terms of his student visa by working in excess of 20 hours a week. When, on one occasion, he was travelling by train after the expiry of his student visa, he was advised by a Fijian Indian that since (by that time) he was married to an Australian citizen, he did not need to do anything about his visa status.
37. Mr Bhullar denied that he had married to enable him to stay in Australia. He said he first met his wife in May 2000 about a week before she was divorced from her first husband. When, later, she became pregnant, she wanted to get married if Mr Bhullar was going to stay with her, and this was the reason for them getting married in September 2000.
38. Ms Hooper noted that if Mr Bhullar is released into the Australian community, he will have no family support and has no long-term accommodation or employment arranged. Moreover, although in the past he has expressed remorse for the offences he has committed, he has continued to offend. I also note that this is not the first time that Mr Bhullar has asked for another chance. In an application to the Migration Review Tribunal dated 23 March 2004, completed while he was still in prison after his conviction for attempted armed robbery at the Argyle Street Hotel and facing the possibility of being removed from Australia because he did not have a valid visa, Mr Bhullar said he had learned his lesson and asked for another chance: “I promise, you have my word I won’t let you or my wife or my son down ever again”.
39. Mr Bhullar said he wants to remain in Australia for his son to whom he will devote himself. He cried all day when he went back to prison for breach of his parole – it was his wife who sold the cannabis to him. He has respect for the Australian system of law and government and apologises for what he did. He does not have time for crime any more. If he is released into the Australian community he will be under the watchful eye of the Probation and Parole Service. He does not consider himself a threat to the Australian community.
40. In my view, given Mr Bhullar’s past history, there is a moderate risk of his reoffending at least in terms of minor criminal conduct such as possession and use of marijuana. His evidence suggests that because he regards the use of marijuana as beneficial for his MS, he is likely to use it again in the future if the opportunity arises. Moreover, if he uses marijuana, there is a reasonable likelihood that this may lead to other criminal conduct as has happened in the past. My view of this is supported by the fact that Mr Bhullar has not undertaken any relevant rehabilitation programs, by his past breaches of judicial orders, by his lack of any support, long-term accommodation and employment if he is released into the community, and by the fact that he has promised not to breach the law in the past and has then subsequently done so. In the circumstances, it is reasonable to treat his promises with a degree of scepticism.
41. Thus, I am satisfied that given Mr Bhullar’s criminal history - including two very serious offences involving the threat of violence, and a string of minor offences - and the moderate risk of his reoffending, the protection of the Australian community strongly favours the cancellation of his visa.

LENGTH OF TIME ORDINARILY RESIDENT

42. Mr Bhullar has been an Australian resident since his arrival on 19 October 1998. Paragraph 10.3(1) of Direction No 41 states that “more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character”. Mr Bhullar’s presence in Australia became unlawful from 7 November 2000, although he also acknowledges breaching the terms of his student visa within a few months of arriving in Australia. On 24 May 2001, after Mr Bhullar had been resident in Australia for two and a half years, Mr Bhullar was charged with the first (shoplifting) offence in respect of which he received a conviction. He was charged with a series of similar offences in the following months.
43. Because of the relatively short period of non-offending after arriving in Australia, this consideration should not be treated as a consideration favourable to Mr Bhullar. Rather it should be regarded as a neutral factor: Re Puafisi and Minister for Immigration and Citizenship [2009] AATA 689, at [39] to [41].

THE BEST INTERESTS OF THE CHILD

44. Direction No 41, paragraph 10.4.1(4) states: “Under Australian law, it is generally presumed that a child’s best interests will be served if the child remains with its parents”.
45. The Direction sets out a number of factors to be considered in ascertaining the best interests of the child. These include, relevantly, the nature of the relationship between the child and the person; the duration of the relationship including the number and length of any separations and the reasons for those separations; the extent to which the person is likely to play a full parental role in relation to the child; the child’s age, citizenship and relationships with others in a parental role; the likely effect that any separation from the person would have on the child; the impact of the person’s prior conduct on the child; any known wishes expressed by the child; and the circumstances of the probable country of future residence and any language and cultural barriers there for the child.
46. Mr Bhullar has a nine-year-old son who was born in Australia and lives with his mother, Mr Bhullar’s ex-wife, in Sydney. Mr Bhullar said that they are currently in Turkey visiting his ex-wife’s relatives and will be back in Australia at the beginning of August 2010. I reject Ms Hooper’s submission that this primary consideration is not relevant because the child is not presently in Australia. I am satisfied from Mr Bhullar’s evidence that this is a temporary absence only and that he will be returning to Australia in early August.
47. Mr Bhullar said he last saw his son in April when Mr Bhullar was still in prison. His son was accompanied by his mother. Mr Bhullar said they would usually come to see him about once a week, although sometimes fortnightly. The visits varied in length from one to two-and-a-half hours. Mr Bhullar said he usually also speaks to his son every day or two on the phone and last spoke to him two days before the hearing. His son attends school in the Doonside area and, in the past, Mr Bhullar has both taken him to school and collected him after school. They are very close and he would like to devote his life to his son. Mr Bhullar said he would be devastated if he is separated from his son. There is no other evidence of the effect of the separation on his son.
48. The documents provided by the Department include a file note prepared by a departmental case officer dated 15 December 2009 recording that she had contacted Mr Bhullar’s ex-wife who said she had not prepared a further statement on his behalf:

She stated that she has ‘no intention’ of resuming any relationship with the A/n. However, [she] stated that she would like A/n ‘to stay in Australia to be with his son’.
[She] stated that A/n and his son ... had a ‘good relationship’ and that ‘they talk on the phone every other day’. She stated that she had not visited A/n for some months because of ‘personal issues’ between herself and A/n ‘that’s why [his son] has regular contact with his father by phone’.
[She] further stated that she would like A/n to remain in Australia for the sake of her son. She stated that she has had to raise her other children on her own and did not want ‘that for [his son] I want him to have his father with him in Australia’.

Mr Bhullar said there were one or two months in 2009 when his wife would not bring their son to visit him. But, she does so now.

49. While the Tribunal only has limited evidence about the relationship between Mr Bhullar and his son, I am, nevertheless, satisfied that there is a close relationship between them and, consequently, it is in the son’s best interests that Mr Bhullar’s visa not be cancelled. That relationship will undoubtedly suffer if Mr Bhullar is returned to India although it will still be possible for them to have telephone and email contact. However, the son will still be living with his mother and will have other support from her family, including his three half siblings. I note that Mr Bhullar has currently been in prison or immigration detention for more than two years and previously served imprisonment for two terms of three months and then a term of 12 months in the period 2002 to 2004.

OTHER CONSIDERATIONS

50. As noted above, Direction No 41 states that ‘other’ considerations, where relevant, must be taken into account but, generally, should be given less weight than ‘primary’ considerations. Relevant ‘other’ considerations in Mr Bhullar’s case specifically referred to in the Direction are his family ties and the nature and extent of his relationships with those in the Australian community, his age, his health, his links with India, the hardship that may be experienced by both Mr Bhullar and his immediate family members in Australia, his level of education, and whether he has been formally warned in the past that his visa might be cancelled because of his criminal conduct.
51. It appears from the evidence that Mr Bhullar has no close family in Australia other than his son. Mr Bhullar’s family are from Amritsar. He said his father died in 1983. His mother, who is a police officer in the Punjabi police, will be retiring soon – she is aged 64. He maintains regular contact with his mother by phone and also with his younger sister who is engaged to be married in November this year. Mr Bhullar wants to be able to earn some money to give to his sister for her wedding, which he hopes to attend.
52. Mr Bhullar said his parents sent him to a good school in Amritsar and from there he enrolled in a Bachelor of Science and Economics degree program. However, he did not complete this and went to work for an English language newspaper and then as a business associate in marketing. In about 1997, Mr Bhullar gave blood for a relative. He said that afterwards, he felt weak and unwell, and consulted various specialists, eventually being diagnosed with MS. Life lost all meaning for him and, having been a ‘macho man’, he felt weak and afraid. He asked his mother to send him overseas and she agreed to pay for him to come to Australia. She took out a loan and Mr Bhullar sold some land (two or three acres) that he had inherited to raise about $10,000.
53. Mr Bhullar said on arrival in Australia, he lived in West Ryde and tried to work on a farm. He attended college to study for an Advanced Diploma in Marketing but stopped attending in the second month of the course because he already knew the material. He subsequently failed the course for non-attendance. He has had various unskilled jobs but prefers a warehouse-type job in which, as long as he is not stressed, he can manage with his MS. Mr Bhullar said he loves Australia: “It is a blessed country.” He wants to make a fresh start. Even though he could go back to living with his mother in India, he does not want to return permanently there because he will be separated from his son. Life is hard in India and he doubted his ability to get a job.
54. Mr Bhullar said he left his wife because she kept beating him. When they were first married, his relationship with the youngest of her three children was not good, but they get on ‘OK’ now. Mr Bhullar acknowledged that he had been invited to apply for a permanent partner visa in January 2007, about which he was sent a reminder on 11 September 2008. The fee for such a visa at that time was $2,105, a fee he could not afford as he was in prison.
55. Mr Bhullar said he can get better treatment for his MS in Australia. Initially after arriving in Australia, he was not getting any treatment for his MS because he was not entitled to Medicare funding. Mostly, he was just smoking marijuana to help him relax. In 2001, his health started deteriorating: “I had smoky, cloudy stuff in the middle of my brain”. He was feeling weak and frail, had multiple vision for a while, and had difficulty standing and walking. He first started getting treatment for MS when he was detained in November 2002 and prescribed Seroquel (used to treat a variety of mental conditions including anxiety and depression) which calmed him down. He still takes this but also has weekly injections of Avonex (a specific treatment for MS). He first had injections of Avonex before he left India, paid for by his mother and family. It controlled his condition so he could do normal things.
56. Mr Bhullar said his family in India would be unable to pay for his treatment now, especially as his mother will be retiring shortly. There is no MS treatment centre in Amritsar – the nearest centre is 1,000 kms away. He said he never had any contact with the MS Society of India (MSSI) before he left India.
57. The Department provided the Tribunal with information about the MSSI whose head office is in Delhi. The MSSI provides a range of support services to MS patients include counselling and financial aid. Distance charts for India show that Amritsar is about 450 kms by road from Delhi which would be the nearest of the nine chapters of the MSSI.
58. Mr Bhullar said his condition has been more or less the same since 2002 although he has his “ups and downs”. He is unable to do gym but he can walk a little. Recently, however, he cannot remember much and cries himself to sleep.
59. Reflecting on these ‘other’ considerations in Mr Bhullar’s case, I accept that for Mr Bhullar to return to India would cause him significant hardship, primarily because of the separation from his son and the possible consequences for his health. However, Mr Bhullar’s evidence indicates that he has a supportive family in India and he is clearly still close to his mother and sister, whose wedding he is keen to attend in November. In my view, at the relatively young age of 34, there would be nothing to stop him reintegrating into the community there although, undoubtedly, he would find this difficult at first. He will be able to maintain contact with his son via telephone and email, although I accept that such contact is of a significantly inferior quality to contact in person between father and son. However, there is nothing to prevent his son visiting Mr Bhullar in India when he is older.
60. With regard to his health, I note that Mr Bhullar was first diagnosed with MS in India and received treatment there with Avonex. He had no treatment for MS for the first four years he spent in Australia and it was only after he was first imprisoned that he received this. I am satisfied that he will be able to obtain treatment for his MS if he returns to India. While funding this may prove difficult, I am not satisfied that he has explored the costs involved or the range of support he can obtain from the MSSI.

CONCLUSION

61. In conclusion, weighing up the ‘primary’ and ‘other’ considerations, I am satisfied that, for the reasons stated above, the protection of the Australian community strongly favours the cancellation of Mr Bhullar’s visa. While I acknowledge that the best interests of his son favour the visa not being cancelled, in my view, less weight should be given to this consideration because of the serious offences committed by Mr Bhullar, his significant criminal history and the risk that he will reoffend. With regard to the ‘other’ considerations, in particular, the hardship likely to be experienced by Mr Bhullar on a return to India and his health, in my view, these are less weighty matters that can be addressed on his return to India.
62. I also note that even if the decision were set aside, Mr Bhullar would, presumably, not be entitled to the visa he held previously because he is no longer married to an Australian citizen.

DECISION

63. The decision under review is affirmed.

I certify that the 63 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President

Signed: .......[sgd]

Associate

Date of Hearing: 6 July 2010

Date of Decision: 15 July 2010

Applicant representative: Self-represented

Respondent representative: Ms K Hooper, DLA Phillips Fox