(a) other than the offending in question here, the Applicant has not been charged with an offence in any country; > > (b) he had a stable upbringing, is close with his family, and grew up within the Sikh faith; > > (c) he and his wife became involved in a temple and had good friends in the community, he volunteers, and attends ceremonies and community events; > > (d) Mr Sodha inadvertently failed to acknowledge his conviction on two incoming passenger cards, missing it on one occasion and misunderstanding it on another; > > (e) he is an experienced and committed worker in the transport industry; and > > (f) he is a good example of not being defined by your past, he has never put blame on anyone and just tries to move forward with his life.

8. I have not included in this summary the numerous statements addressing Mr Sodha's close and supportive family life. This is due to the fact that his evidence and ASFIC indicate clearly that a process of separation is underway with the Applicant and his wife. I understood this to have effectively taken place upon Mr Sodha entering immigration detention in June this year.
9. There is summons material indicating that his wife has lodged a police complaint about excessive phone calls apparently some time in late June (TB1, 24). Mr Sodha appeared to accept this report of making dozens of calls and eventually being blocked. He also stated that his wife continues to call him in order to facilitate conversations with his children. The Applicant also gave evidence that upon entering immigration detention his wife told him that he would or should go back to India. He also stated that she indicated the family would visit him there, and that he would or could return to Australia in the future.
10. The evidence of separation was broadly corroborated by other witnesses and these witnesses confirmed Mr Sodha's own evidence as to him experiencing significant emotional distress. It is clear from the Applicant's evidence that he is preoccupied with his capacity to continue to play an active parenting role for his children. The witnesses also generally corroborated Mr Sodha's statement in respect of his community involvement. This is also described in written statements, which I understood him to acknowledge in his evidence (G19).
11. Finally, I note that Mr Sodha explained in evidence that his incoming passenger cards were incomplete because his wife had filled them in, contradicting the written statement.
12. In his evidence, Mr Bhan, spoke to his written statements the latest of which is dated 30 June 2025 (Exhibit A1). The evidence overall indicates that the Applicant has been employed for approximately 12 months with a transport and logistics business. He has somewhat of a multitasking role involving both driving and delivery, and 'yard work'. I understood from the evidence that Mr Sodha is well regarded by his employer and that while his role has been filled in his absence, the employer would be happy to rehire the Applicant.
13. There is limited specific evidence about Mr Sodha's employment history, however it appears that he has been engaged in the transport industry for most of his time in Australia. He confirmed in evidence that he graduated from high school in India and has undertaken some higher study.
14. There are some relevant medical records regarding the Applicant's time in immigration detention (for example at TB6, 144). Mr Sodha was also cross-examined about his health, particularly his mental health. The Applicant acknowledged past prescriptions of medication for anxiety or stress related issues, and he has consulted with a psychiatrist. Despite some indications in the materials of past mental health concerns, Mr Sodha denied any serious mental health concerns, citing in particular his love for his children.
15. There is no indication from Dr Yoxall's report that Mr Sodha has a history of mental health concerns. There is also no indication from this source, or in any other material before the Tribunal, of the Applicant having behavioural problems of any kind, nor any issues with alcohol or drug use.

1. Some brief observations are needed in respect of Mr Sodha's representation. There are two substantive written submissions from the Applicant's previous representative on the materials, dated in 2024 and 2025 (G13) (the second addresses the introduction of Direction No. 110). The Applicant stated at the hearing that he was unhappy with this representative, and wished the Tribunal to rely upon later submissions (ASFIC), which I understood were prepared by another representative. This statement appeared to be somewhat related to unhappiness with Mr Sodha's wife who he seemed to hold responsible for his detention.
2. Beginning with the ASFIC, it is not clear that the writer fully appreciated the nature of the character test as it pertains to this matter, referring as it does to the 'substantial criminal record' test in s 501(6)(a) of the Act. However, it is contended that Mr Sodha does not fail the character test in part due to his single conviction which resulted in a wholly suspended sentence. It is also contended that the Applicant completed his good behaviour bond. Relying in part on Dr Yoxall's report, it is submitted that Mr Sodha is at a low risk of reoffending, and there is no evidence that he is likely to engage in criminal conduct in the future. The submissions also note that the Applicant's children are 'deeply reliant' on their father for emotional, financial and practical support. Finally, it is contended that six years have passed since the offending and Mr Sodha has demonstrated strong and sustained rehabilitation and has extensive employer and community support.
3. In the first submissions for the Applicant (G13), that material addressing the character test is largely consistent across both documents. These documents address the correct aspect of the character test, which commends them for consideration. These submissions note that the sentencing magistrate did not impose any specific conditions with the good behaviour bond; that is, there was no requirement to undertake any particular program under the supervision of a community corrections officer. It is contended, therefore, that this gives rise to a strong inference that Mr Sodha was deemed to have good prospects, with no identified need for rehabilitation. Further, his presence in the community (whilst on the bond) was not considered to pose a risk of harm, and he has continued to live peacefully in the community.
4. It is further contended that not only was this Mr Sodha's first and only offence, but that it was a summary charge. This offence is said, in the submission, to carry a maximum penalty of two years' imprisonment, which demonstrates that the three month and two week sentence imposed is at the lower end of the spectrum. It is contended that the Applicant's offending is isolated and aberrant, and inconsistent with his values and conscientious law-abiding life. It is also contended that his mistake with the incoming passenger cards was inadvertent. Ultimately, it is submitted that there are strong mitigating factors in relation to the risk of further offending, in considering his past offending which was negligible and exceptionally remote.
5. At the hearing, Mr Sodha submitted that he respects women and the court, and 'didn't have anything of that in my mind' at the time of offence, which was unintentional. He submitted that he respects the community a lot and is happy living in Australia. Mr Sodha places particular emphasis on the needs of his children, and stressed his respectful engagement with his community through the temple.
6. The Respondent contends that Mr Sodha fails the character test. It was submitted at the hearing that a low risk on its own can be sufficient to fail the character test, and that the report of Dr Yoxall - even at its highest - does not support Mr Sodha passing the character test. A number of specific supporting contentions were set out, broadly reflecting those in the RSFIC [16]-[17]:

(a) the Applicant should be accepted as having committed the offence, and he cannot explain his conduct for which there appears to be no stressor or trigger, and in circumstances where he has less support than at the time of the offending, further 'out of the blue' offending remains possible; > > (b) it is very concerning that Mr Sodha maintains his denial of the offending, based upon the drunk passenger narrative, as this shows no insight - notwithstanding the criminal process - and he only shows remorse for pleading guilty; > > (c) Dr Yoxall's report of remorse and victim empathy was directly contradicted by the Applicant, and he contradicted his own written evidence about the incomplete passenger cards; > > (d) some consideration should be given to Mr Sodha's episode of overwhelming his former wife with phone calls, but this is not relied upon as a form of offending; and > > (e) Mr Sodha's social network will not be vigilant in monitoring his conduct, or supporting good conduct, as they have accepted his denial.

1. A key feature of the Respondent's contentions is reliance upon the fact of prior offending. The high point of this approach is the concern for further 'out of the blue' offending. This characterisation in my consideration comes very close to amounting, effectively, to an argument that there is a real, but remote risk of criminal conduct.
2. I fully accept that the Respondent has focused on the reduced emotional support to Mr Sodha arising from the apparent break down of his marriage, and the unquestioning acceptance by his friends of his denial of the offending. These are the substantive contentions supporting the critical pillar I have identified above.
3. With reference to the guidance provided by the authorities, I must give some consideration to the nature and circumstances of the offending. This is because the kind of offending and the extent of a person's offending history should provide some indication of the reason or reasons why criminal conduct occurred. In this matter, there are no substantive factors arising from the evidence demonstrating why Mr Sodha did what he did. We do know that it was an entirely isolated offending. We do know that, in terms of overall severity, it merited a relatively short, suspended sentence.
4. Obviously, consideration of this foundational issue is not assisted by the Applicant's ongoing denial. I noted the brief mention in Dr Yoxall's report that it is not clear how denial may function as a predictor of future offending in sexual offending. The question here, in short, is what probative weight to give to Mr Sodha's ongoing inability to admit his offence.
5. Before returning to the factors that might be indicative of a risk of future offending, I must give some consideration also to the Applicant's present circumstances and what matters may bear on the risk of behaviour being repeated. As noted, the Respondent points to the absence of, or weakness in, certain protective factors. I agree that some real consideration should be given to the change in Mr Sodha's relationship status, and the basis upon which his friends provide emotional or moral support.
6. What troubles me about the Respondent's contention about the risk of offending is that it does not rest upon positive assertions, or inferences, arising from probative evidence. The argument is that certain protective factors are missing, but I consider an equally or more significant question to be what are the factors that point in this matter to a likelihood of offending? That is, the absence of certain protective factors only becomes probative in circumstances where the desire, motivation or opportunity to offend might arise.
7. I am unable to identify here any specific factor that points toward an identifiable risk. There is no other criminal conduct to assist in identifying a pattern, trend, or other element characteristic of repeat offending. Mr Sodha has no underlying psychological or psycho-social risk factors, nor are there any such issues presently apparent. He has no underlying behavioural issues. There are no identifiable criminogenic features in his life story.
8. There are also other relevant protective factors that warrant consideration. I accept that there is no clear guarantee of future employment, but I have evidence of possible future employment, against a longer history of employment. I also have at least adequate evidence of social and community engagement. This speaks to some extent to Mr Sodha's social connectedness in general, and to a limited extent also to his character overall. The evidence in short reinforces the isolated nature of the historical criminal conduct. This conduct occurred quite some time ago now. Finally, I consider due weight should be given to Mr Sodha's repeated and apparently strong commitment to supporting his children.
9. I have identified above some reasons to treat Dr Yoxall's report with caution. I do not place substantial, let alone determinative, weight upon her findings based upon the administration of several risk assessment tools. I have noted this report identifies the need to properly address factors protective against reoffending. This is consistent with the authorities, and is the approach taken by the Respondent.
10. It is not at all to Mr Sodha's credit that he has not faced up to his offending history. However, I consider that more is needed to reach an affirmative finding that there is more than a minimal or remote chance of the Applicant reoffending. I note here the discussion in Splendido that precedes the heavily cited passages which summarise the process of reasoning underpinning assessment of risk (at [77]-[78]). Her Honour Mortimer J (now Chief Justice) deals with the problems associated with tendency evidence, drawing on Hughes v The Queen [2017] HCA 20; 344 ALR 187 (at [71]-[76]). This discussions highlights the well-established principle in criminal law that one instance of offending is not probative of another instance of offending. This reinforces the overarching conclusion that more is needed than a bare recitation of criminal history when considering future risk.
11. In short, the argued absence of certain protective factors, where there are other protective factors in place, is not in my view itself probative of a future risk of offending. On balance, I consider the evidence overall to demonstrate only the existence of a bare possibility of future offending simply as a result of Mr Sodha having offended once in the past. This reflects that fact that the application of any assessment tool will record the historic fact of a prior offence, resulting inevitably in (at least) a low risk of reoffending.
12. For this reason, I find that the correct or preferable decision is that the Applicant does not fail the character test on the basis of s 501(6)(d)(i) of the Act. Accordingly, there is no need to address the discretion to refuse the grant of a visa.

1. For the reasons given above, the Tribunal sets aside the decision under review and substitutes it with the decision that the Applicant not be refused the grant of a visa under s 501(1) of the Migration Act 1958 (Cth).

1. I certify that the preceding fifty-four (54) paragraphs are a true copy of the written reasons for the decision herein of General Member S. Fenwick

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