Amardeep Singh (Migration)

[2018] AATA 1608

Amardeep Singh (Migration) [2018] AATA 1608 (2 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amardeep Singh

CASE NUMBER:  1801962

DIBP REFERENCE(S):  BCC2017/4517404

MEMBER:Kate Millar

DATE:2 May 2018

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 02 May 2018 at 4:01pm

CATCHWORDS

Migration – Cancellation – Student (Temporary)(Class TU) visa – Subclass 500 (Student) – Risk to Australian community – Criminal offence charges – CCTV records – Affidavits from victim – Nature of risk – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 116

CASES
Gong v MIBP [2016] FCCA 561

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Mr Singh was in Australia on a student visa until his visa was cancelled by a delegate of the Minister for Immigration and Border Protection on 17 January 2018 because the delegate found he may be a risk to the Australian community.  This opinion was based on Mr Singh being charged with indecent assault in the course of his work as a taxi driver.  These charges are yet to be determined by a court. 

2. Mr Singh has applied for a review of the decision made to cancel his Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

3. Mr Singh appeared before the Tribunal on 4 April 2018 to give evidence and present arguments, and was represented in relation to the review by his registered migration agent.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly to this case, these include the ground set out in s.116(1)(e). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

6. The issue in the present case is whether the ground for cancellation in s.116(1)(e) of the Act is made out, and if so, whether the visa should be cancelled.

   Does the ground for cancellation exist?

7. A visa may be cancelled under s.116(1)(e) if the Minister or the Tribunal is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals. There does not have to be any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561, at [41].

8. Mr Singh has been charged with two counts of indecent assault.  The charges are still before the Magistrates Court and have not been determined.  The next court date is a pre-trial conference on 17 May 2018.  There is no trial date listed, and Mr Singh is on bail. 

9. At the hearing, Mr Singh provided affidavits from the alleged victim, her boyfriend and her boyfriend’s mother, a record of Mr Singh’s interview with police, and affidavits from police officers regarding the investigation and the arrest of Mr Singh.  These include a written description and photographs from the CCTV footage from the taxi on the night of the alleged offence.

10. These documents allege that while working as a taxi driver Mr Singh assaulted an intoxicated female passenger in the course of taking her from the city to her boyfriend’s house some distance away.  It is alleged the taxi was stopped on three occasions where the passenger vomited, and that on two of these occasions Mr Singh touched and rubbed the passengers’ thighs, upper chest, breasts and lower back and placed his right hand up her skirt onto her bottom and groin.  The alleged victim provided an affidavit regarding the incident, and affidavits from her boyfriend and her boyfriend’s mother state she was distressed on arriving at the house.

11. Mr Singh said the female passenger was in his cab for half an hour.  He said the allegations against him are baseless and he is innocent.  He said he would not do anything with a camera on his head.  He said he has to act like a friend or a human towards passengers and take care of them.  He said he did not touch her private parts but did touch her knee.  He said she was drunk and he had to get her home safely.  His written submission states his passenger was drunk and asked to stop the cab to vomit.  He was concerned that she was choking and gave her a tap on the neck from the front and behind so she could breathe.  He said he held her from the side when she was vomiting and pulled her up because she was unable to pull herself up. He has stopped working as a taxi driver and said he no longer wants to work in transport, he just wants to work in a restaurant.   

12. The written description of the CCTV recording states that the passenger before the alleged victim was also touched by Mr Singh on her upper thigh, lower torso and groin. On being asked to respond to the written summary of the CCTV recording Mr Singh said people get in his cab who are very drink and at times very upset as they had broken up with a boyfriend and as a human being he has  to take care of them. 

13. Mr Singh said he is not a risk to the Australian community as he has been in Australia for four and a half years and has been of good behaviour in that time.  He said he was given permission while on bail to return to India. 

14. At hearing, Mr Singh said it was a condition of his bail that he does not go within 500 metres of the alleged victim, and it was raised whether this is information that supports that he may be a risk to her.  He said he does not know who she is or where she lives, but provided affidavits with her name and address and also acknowledges he took her to her home but said he cannot recall where this was.  After the hearing, he provided a certificate of Record from the Magistrates Court which shows this is not, in fact, a condition of his bail.

15. Mr Singh acknowledges he had had physical contact with female passengers in his cab, but denies that he touched any passengers in the groin area.  He states he no longer wants to work in transport, and only wants to work in the restaurant, complete his course and return to India.  His work at the restaurant also involves home deliveries.

16. It is not necessary or appropriate for this Tribunal to make any findings about whether any criminal offence has been committed.  The task before the Tribunal is to determine if, based on the information before the Tribunal of Mr Singh’s past behaviour, he may be a risk to the health and safety of a segment of the Australian community or individuals within that community. 

17. The information that Mr Singh inappropriately touched the alleged victim is supported by CCTV records, an affidavit from the alleged victim, and affidavits from the victim’s boyfriend and his mother about her distress following the incident.  Mr Singh stated at hearing that he considers it appropriate to touch females to console them if they are distressed.  While he no longer works in transport, he has worked in a restaurant, where his tasks include home deliveries, and both this work and his general interaction with members of the Australian community may involve contact with females who are intoxicated and distressed.  On the information before me there is a possibility that he would be a risk to the health and safety of this segment of the community. 

18. As a result, Mr Singh may be a risk to the health and safety of a segment of the Australian community and the ground in s.116(1)(e) is established. As this ground does not require mandatory cancellation under s.116(3), it must then be considered whether the power to cancel the visa should be exercised.

    Should Mr Singh’s visa be cancelled?

19. There are no matters specified in the Act or the Migration Regulations 1994 (the Regulations) that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including, but not limited to, matters identified in the Department’s Procedures Advice Manual (PAM3) General visa cancellation powers.

20. Mr Singh arrived in Australia on 17 October 2013 on a Higher Education Sector (Subclass 573) visa to study a Bachelor of Electrical Engineering.  He said this study was too hard and he did not do well, and he was consistently failing one or two subjects per semester.  He talked to his parents and they suggested he do a Diploma in Business so they can start a business in India.

21. He applied for a Vocational Education and Training Sector (Subclass 572) visa, however his visa application was refused and his Higher Education Sector visa was cancelled.  He applied for a review of the decision to refuse his visa application, and says this decision was overturned and he was told he had another chance to complete his study. 

22. After completing his Diploma in Business on 21 October 2016 he chose to become a chef so he could open a restaurant or a hotel on his return to India.  He started a Certificate III in Commercial Cookery from Durban College in late 2016 and states he completed it.  Mr Singh said at the time he was charged he was enrolled in a Diploma of Hospitality, which he is due to complete in seven months.  He states he completed the Certificate III in Commercial Cookery in October or November 2017 and started the Certificate IV in November 2017, but after two months his visa was cancelled and he could not continue his course.

23. He said he just wants to finish his study and return to India, and that if he cannot complete this course his time in Australia is wasted and he will not be able to do anything when he returns to India.  He wants to complete his whole study.  He says he would not be able to get a job with a Certificate III and Diploma of Business and wants to complete his other study so that he can open his own business with full qualifications.  On being asked why he could not do this without finishing the additional qualification, he said he wants to complete his whole course of study with no gaps. 

24. Mr Singh said he has not been in any trouble before in Australia.  There have been no complaints at his college or at his work before.  He says he plays soccer in Australia and attends his temple and assists as a kitchen hand at the temple.

25. He said as a taxi driver he did school runs for a child with a disability and there have been no complaints against him. 

26. The PAM set out a number of factors to be considered by delegates in deciding whether to cancel a person’s visa.  While not limited to these factors or bound by them, it is useful in this case to consider each of these in turn. 

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

27. Mr Singh came to Australia to study in the higher education sector.  This was not successful and his visa was cancelled for a failure to comply with the conditions of the visa but he was then granted a visa to study in the vocational education and training sector, and has successfully completed a Diploma of Business and a Certificate III in Hospitality.

28. He says he just wants to remain in Australia to finish his study and then return to India.

    The extent of compliance with visa conditions

29. Mr Singh said he has been attending his course and completing his study.  He had a previous visa cancelled because he stopped studying the course for which his visa was granted.  Mr Singh said this was because the course he studied was too hard and he changed his study plans.  He did not comply with the conditions of his Subclass 573 visa because he did not continue to study the course for which the visa was granted. 

30. He was successful in obtaining a further Subclass 572 visa. 

    The degree of hardship that may be caused (financial, psychological, emotional or other hardship)

31. Mr Singh said his parents have invested a great deal of money in his study, they have worked hard to earn the money for him to study and he wants to make them proud.  He is the only son and he needs to take care of them, and he wants to open his own restaurant.

32. Mr Singh said cancellation would cause him hardship and his family loss of pride.  It will be a “bad factor” on his future if he does not complete his study; he really wants to be a good chef and open a restaurant in India.  He said if his visa is cancelled his parents will break down as they want a successful son who has completed his certificates and diploma and can start a business. 

33. He has one sister in India who is married and no longer lives at home, but does live in the same town as his parents.

34. Mr Singh provided a medical certificate to the Department as he said he could not concentrate on his studies when he was charged, but said he has no ongoing medical conditions or mental health issues. 

    The circumstances in which ground of cancellation arose   

35. Mr Singh said the allegation is only an allegation and he is innocent.  He says he does not do anything with customers, he always helps them.

36. It was put to him that there were concerns about his behaviour towards the women in his cab before the passenger it was alleged he assaulted.  He said people are drunk and women have problems with their boyfriends and say they want to kill themselves.  He said he is human and wants to help them.  He said that he knew there was a camera on his head and as a result he would not do anything inappropriate.  He says he has to act as a human and not just a taxi driver.

37. The record of the CCTV regarding Mr Singh’s behaviour to the passenger prior to the person he allegedly assaulted was put to him.  He said that if a passenger says they want to die because their boyfriend has left them he has to act like a friend and has to shake hands.  On being asked about touching her upper thigh/ upper side/ groin Mr Singh said he has to take care of every passenger.  He said in touching them he was assuring them everything is OK.  As a friend he can take care of another person as it is his job to make sure the person is safe, as if anything happens to the person in his cab that comes onto him.  He said it’s not to touch but to take care of the passenger.  He said that that time he was just trying to take care of the passenger.  He said he did not touch her private parts, he just touched her knee to show her that everything is OK.  His intention was not to assault, it was to take care of the person.     He said if his passengers were to get out of the cab and then do something to their lives he would be responsible.  Therefore he said as a human he was responsible for helping them. 

38. Mr Singh stated he was mostly driving in 60 – 80km zones and once driving, he had to concentrate on driving and not anything else.

39. He said he is not just a taxi driver, he is a human being with emotions.  He said on that day these two passengers were totally drunk and he had to help them as much as he could and had to drop them home safely.   

40. He said he was given his passport back and if he had done something wrong he would not have stayed in Australia.

    The past and present behaviour of the visa holder towards the Department

41. Mr Singh had a previous visa cancelled, but this visa was re-instated following an application to the Migration Review Tribunal.  He said this happened when he changed his study from higher education to vocational education and training.

    Whether there are mandatory legal consequences of cancelling the visa

42. If Mr Singh’s visa is cancelled, there are only certain types of visa he can apply for from within the migration zone (s.48 of the Act and r.2.12 of the Regulations).  If his visa is cancelled he may only apply for another visa of a type permitted, or be granted another visa pending the outcome of the criminal proceedings.

43. If there is nothing that compels Mr Singh to remain in Australia, he may return to India.  He will need to meet character considerations for future visa applications, which may depend on the outcome of the charges against him. 

    Whether any international obligations would be breached as a result of the cancellation

44. Mr Singh said there was no reason he could not return to India other than wanting to complete his study.  He plans to return to India where his parents and sister live. 

    Any other relevant matters

45. Mr Singh said he would not be a risk to the alleged victim as he would not recognise her or who she is or where she lives. However at the hearing he submitted affidavits with her name and address and he also acknowledges he took her to her home but said he cannot recall where this was.  I do not consider that he does not know the name of the alleged victim, or her address. 

46. Mr Singh provided a reference from the Punjab Lions Football Club stating Mr Singh has played soccer for the Punjab Lions for the last three years and he is a great team member who played at the Australian Sikh games in Adelaide and volunteered when he was not playing.  He also provided photographs from these games.

47. Mr Singh wanted to provide information on his good behaviour while in Australia and provided a letter from the manager of the taxi company stating that during the time he worked for them they did not receive any complaints, and he had been a good and honest employee.  He also provided a letter from the director of the Indian restaurant where he worked stating that he worked there from May 2017 to September 2017 and during his employment they did not have any issues with his behaviour, including during times he acted as a delivery driver. 

48. Mr Singh provided a child related employment screening issued 3 November 2017 stating he does not pose a risk to the safety of children.  This was issued prior to the charges being laid against him. 

    CONCLUSION

49. Mr Singh states he is innocent of any offences, and has not been convicted of any offences.  He was unsuccessful in his studies when he first came to Australia, but has since successfully completed studies to a Diploma level.  He has participated in sport and religious activities in the community.

50. Mr Singh is able to return to India to be with his parents, and has some qualifications that will assist him in obtaining work or starting a business.  While I am mindful that I am only considering a risk of harm to a segment of the community, the nature of the risk is serious and if realised could have a significant impact on members of the Australian community.  Mr Singh may apply for another visa from offshore and meet the requirements for the visa at that time. 

51. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

52. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    Kate Millar
    Member