An Indian national who was denied a visa due to his conviction on domestic violence charges has been spared deportation due to “the most remote” possibility of him reoffending.
An Indian national who pleaded guilty to charges of assaulting and intimidating his wife has been spared deportation to India after the Administrative Appeals Tribunal overturned his visa refusal.
Lakhbir Manku, who came to Australia in August 2014 as an international student, was arrested on 26 June 2016 for assaulting his wife.
He later pleaded guilty to the charges including assaulting, intimidating and causing bodily harm to his wife and was convicted on 13 July 2016. He was released on a two-year good behaviour bond.
Mr Manku’s wife applied for a student visa in September 2016 in which she included Mr Manku as a dependent. However, the Department of Home Affairs refused to grant him a visa in May 2018 on the grounds that he did not meet the character requirements, after first issuing a notice of intention to refuse his visa last year.
During the hearing of his appeal at the Administrative Appeals Tribunal against the Department’s decision, Mr Manku accepted that he may have slapped his wife with his open palm and grabbed her during the course of struggling. He denied any other physical contact or assault.
The AAT head that there has never been an incident like this either before or after that date and that Mr Manku’s behaviour on that day was “out of character”.
“Both in Australia and India there is no evidence of any offences having been committed by the Applicant either against his wife or anyone else,” AAT Senior Membee Griffin said, adding that Mr Manku was the aggressor.
The AAT observed that while the offences committed by him were “serious”, his wife only suffered bruising to her wrist and “undoubtedly pain and discomfort caused during the course of the assault”.
The Tribunal heard that Mr Manku’s wife is studying for a Master’s degree in business administration and relies on him for financial and emotional support.
AAT Senior Member Griffin said she may not have been entirely truthful in her evidence about the assault in order to save her husband who is in immigration detention, from deportation.
“Domestic violence in all its manifestations is to be abhorred in our society.”
However, he said, it was important to consider the circumstances of the incident that happened on “one occasion only” during their relationship.
“The incident was caused by a variety of stressors which came together on that occasion and which included the illness of their young child, financial strain, and pressure about the upcoming question of their visas,” Senior Member Griffin said.
“The offending behaviour was deeply situational and on my assessment of the facts, it is highly unlikely that the concatenation of particular circumstances would arise again.”
The Tribunal noted that Mr Manku had been of “good character” since his offending and that his wife meeting him in the detention centre and talking to him on the phone every day was an indication of their mutually affectionate relationship.
“I am entirely satisfied that [Mr Manku’s] wife is desirous of living again together with her husband. I am further entirely satisfied that the wife has neither been suborned nor in my opinion, is she frightened into this attitude by fear or pressure from [him],” said Mr Griffin, concluding that Mr Manku should be considered a person of good character.
The AAT overturned the Department of Home Affairs’ decision to refuse him a visa, saying the chances of him reoffending was “the most remote of possibilities”.
Mr Manku's lawyer Nilesh Nandan said it is a rare example of when criminal conduct is not fatal to a visa grant.
”The objective seriousness of a person committing domestic violence will likely mean that such a person will fail the character test, but each case needs to be considered on its own merits. An isolated incident in the particular circumstances of this case, was found by the Tribunal to be out of character,” Mr Nandan told SBS Punjabi.