An Indian national convicted of indecently assaulting a teenager has been given a second chance after the Administrative Appeals Tribunal overturned the decision to refuse his visa, saying he deserved a “fair go”.
30-year-old Sushil Kumar’s application for an Employer Nominated Visa was refused in January this year by the Department of Home Affairs on the basis of his convictions for a sexual offence against a '17-year-old child' in 2009 and a second offence of failing to comply with reporting obligations after he was put on the Victorian register of sex offenders.
Mr Kumar pleaded guilty to indecently assaulting a 17-year-old after initially denying the allegations. The written judgment of the AAT reveals that Mr Kumar- who was 21 and working at a Subway restaurant in Melbourne at the time, offered his jumper to the victim who was feeling cold after walking into the store with her friends on 8 August 2009.
Mr Kumar touched her breast and tried to kiss her in the staff-only toilet in the store. The judgement also notes that he “stopped immediately” and left her after she said “no” to his advances.
The victim reported the matter to the police on 27 August 2009. On being questioned by police in September that year, Mr Kumar initially denied the allegations and then returned to the police station and admitted to his offending; he was convicted in November 2009. As a result of his conviction, he was placed on the sex offender’s register.
During his annual reporting interview in December 2014, Mr Kumar told the police he had been sharing the house with a family that includes a 3-year-old child since October that year. He was told that by not reporting any child living with him within a day of the child starting to live there, he had breached his continuing obligations to report any change of circumstances.
In 2015, Mr Kumar pleaded guilty to failing to comply with his reporting obligations. He was convicted and fined $600.
Source: AAP
On 31st January this year, his visa application was refused on the grounds that he had not passed the character requirement due to these convictions. A day before the department informed him of the decision, Mr Kumar was taken into immigration detention on 7 February 2018 when his wife was just a few days short of giving birth to their first son. The Tribunal said the timing was “unfortunate”.
Australia is founded on the concept of a ‘fair go’. Having regard to all the evidence the Tribunal finds that the Australian community would expect the Applicant to be given the opportunity to continue his life in Australia. He has made one mistake and should be given a second chance. - Andrew Maryniak QC, Member AAT.
Upon a review of the decision to refuse Mr Kumar’s visa, member of the AAT Andrew Maryniak QC said Mr Kumar’s offence was a “once-off” and was of a “historical nature”.
“He appears extremely ashamed and embarrassed about his 2009 conduct and has paid a substantial price for it to date, including missing the birth of his first child,” Mr Maryniak added.
“He has established a solid life in Australia through education and employment, has married and now has his first child born in Australia,” said Mr Maryniak adding that the risk of him reoffending was “very low”.
The Tribunal said Mr Kumar had shown a genuine remorse and ruled that the decision to cancel his visa would also adversely affect his wife and son whose ability to stay in Australia depends on Mr Kumar’s visa status.
The Tribunal noted that it would be best for his son to be raised in Australia rather than India.
It said Mr Kumar deserved a second chance.
“Australia is founded on the concept of a ‘fair go’. Having regard to all the evidence the Tribunal finds that the Australian community would expect the Applicant to be given the opportunity to continue his life in Australia. He has made one mistake and should be given a second chance.”
Last week the Tribunal remitted the matter to the Minister for Home Affairs with the direction that Mr Kumar’s visa application for a permanent visa not be refused.
