Gurjit Singh (Migration)

[2024] AATA 4020

Gurjit Singh (Migration) [2024] AATA 4020 (8 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurjit Singh

REPRESENTATIVE:  Mr Mandeep Singh (MARN: 2418383)

CASE NUMBER:  2421701

HOME AFFAIRS REFERENCE(S):          BCC2023/7281329

MEMBER:Mary Sheargold

DATE:8 October 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

Statement made on 08 October 2024 at 11:28am

CATCHWORDS
MIGRATION – cancellation – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) visa – criminal convictions and imprisonment – discretion to cancel visa – wrongdoing denied and plea of guilty after misleading advice from lawyer – degree of hardship – protracted criminal proceedings and wife’s mental health – secondary visa holder to wife’s visa, due to expire soon – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(g)
Migration Regulations 1994 (Cth), r 2.43(1)(oa)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 3 July 2024 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 485 (Temporary Graduate) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(g) on the basis that a prescribed ground for cancelling the visa applies. In this case, the prescribed ground was set out in reg 2.43(1)(oa) of the Migration Regulations 1994 (Cth): the visa holder has been convicted of offences against a law of the State of Queensland. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 29 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

4. The applicant was represented in relation to the review, but the representative did not attend the hearing.

5. 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

6. 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)(g). 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.

   Does the ground for cancellation exist?

   s 116(1)(g) - prescribed ground

7. A visa may be cancelled under s 116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in reg 2.43 the Regulations. In the present case, the ground in reg 2.43(1)(oa) is relevant.

8. On 5 December 2023, Mr Singh was convicted of 3 separate counts of sexual assault in violation of the State of Queensland’s Criminal Code.  He was sentenced to periods of 5 and 10 months imprisonment, served concurrently, with orders for the imprisonment to be suspended after serving a period of 4 months.

9. Convictions were recorded against Mr Singh for each of the 3 charges that had been brought against him.  During the Tribunal hearing, Mr Singh pleaded with the Tribunal that he and his wife had misunderstood the criminal proceedings in Queensland and Mr Singh believes that, due to a lack of adequate interpretation being made available to him, as well as believing he was misled by his own criminal lawyer, he was coerced into making a guilty plea to avoid a trial taking place.  He claims he did not understand that agreeing to plead guilty would result in convictions that would jeopardise his visa status, let alone leave him vulnerable to imprisonment.

10. Mr Singh stated that he felt he had not been heard by the Court in Queensland and that his lawyer had not adequately defended him or put forward the case he had requested them to put forward.  He told the Tribunal that his young daughter was told he had gone to India for a holiday while he was imprisoned, and stated that it would be devastating for his wife and daughter if his visa was cancelled now.

11. Further, Mr Singh flatly denies any criminal wrongdoing during the incident that led to charges being pressed against him.  At the time, Mr Singh had been working as an Uber driver, and had picked up an allegedly intoxicated university student from a nightclub and returned her to her student accommodation.  Mr Singh produced CCTV footage showing the extended period where his car was parked outside the halls of residence that also shows the interactions between himself and the claimant outside his vehicle.  While the Tribunal emphasised to Mr Singh that it believed it was important he felt that he had been heard and seen in the Tribunal hearing, it was not for the Tribunal to draw inferences regarding the criminality or otherwise of his behaviour – that it should rely on the findings of the State court that convicted him - and that, in any case, the footage provided did not, in the Tribunal’s view, exonerate him as he had claimed.

12. Although Mr Singh accepts that he made a poor choice in pleading guilty to the charges against him, he maintains that he did so because he felt trapped and hopeless.  The matter was about to proceed to trial and Mr Singh said he spent 2 years of his life and significant financial resources funding the legal fees for his defence.  He states that he has never been unfaithful to his wife, and that he would never have assaulted a young woman.

13. While the Tribunal acknowledges Mr Singh’s considerable frustration regarding the criminal proceedings he was party to, ultimately, the Tribunal must accept the judgment of the Queensland courts. Mr Singh was convicted of 3 counts of sexual assault and served a 4 month prison term as a result. Those facts are not controversial, and as such, the Tribunal is satisfied that the ground for cancellation in s 116(1)(g) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

14. The Minister’s power to cancel a visa pursuant to s.116(1) of the Act is discretionary. Therefore, I must now decide whether or not to exercise the discretion to cancel Mr Singh’s visa. Noting that there are no prescribed considerations in either the Act or the Regulations, I have weighed up all the evidence before me from Mr Singh against the matters set out in the Department’s Procedures Advice Manual (PAM3) regarding the exercise of visa cancellation powers.  To make my decision, I have asked the following questions:

    ·What was the purpose of Mr Singh’s travel to and stay in Australia?

    ·To what extent has he complied with his visa conditions?

    ·What degree of hardship may be caused if his visa is cancelled?

    ·In what circumstances did the ground for cancellation arise?

    ·How has Mr Singh behaved towards the Department in the past? How has he behaved during this process?

    ·Would any other visas be cancelled as a consequence of cancelling Mr Singh’s visa?

    ·What are the legal consequences of cancelling Mr Singh’s visa?

    ·Does Australia have any international obligations that may arise if Mr Singh’s visa was cancelled?

15. In reaching my findings, I have considered the applicant’s evidence in relation to these matters as set out below.

    What was the purpose of Mr Singh’s travel to and stay in Australia?

16. Mr Singh came to Australia to support his wife as she has pursued her dream to study and work in Australia.  The Tribunal is satisfied that Mr Singh has fulfilled that purpose to date, and that he continues to fulfill that purpose by providing income to support his wife’s studies and income to support the family to continue to live in Australia.

17. Mr Singh’s wife provided a statutory declaration confirming that their marriage is ongoing and that she fully stands by her husband.  She struggled to manage caring for their daughter while Mr Singh was in prison.  Since his release, he has returned to the family home and their daughter is still unaware that he was remanded in custody or that he has criminal convictions.  Mr Singh told the Tribunal he is not able to work for Uber anymore, but has found work as a taxi driver, and continues to support his family that way.

18. Therefore, I give this consideration some weight against cancelling the visa.

    To what extent has Mr Singh complied with his visa conditions?

19. Mr Singh told the Tribunal that he is a law abiding person; he denies wrongdoing in relation to the actions leading to criminal convictions and imprisonment.  Nonetheless, there is no evidence before me to suggest that Mr Singh has not complied with any conditions imposed on his visas.  Therefore, the Tribunal gives this consideration a little weight against cancelling the visa.

    What degree of hardship may be caused if Mr Singh’s visa is cancelled?

20. I have considered the potential for financial, psychological, emotional and other hardships that Mr Singh may suffer if his visa is cancelled. Mr Singh’s evidence at the hearing was that he has spent considerable time living in Australia in recent years, and his daughter only knows life living in Australia.  He has demonstrated ties to the local Indian community in his Sikh faith and undertakes charitable acts.  The Tribunal is satisfied that he has developed ties to the Australian community.

21. Further, he has provided evidence regarding the profound impact his imprisonment has had on his wife, who suffers from anxiety and depression as a result of Mr Singh’s criminal proceedings that were dragged out for over 2 years prior to him serving a jail sentence from December 2023 to April 2024.

22. Mr Singh is a secondary holder of his wife’s Subclass 485 visa.  That visa is due to expire on 13 January 2025.  The Tribunal has discussed with Mr Singh the potential impact that his criminal convictions may have for any future visa he may wish to seek to live in Australia.  Given the short period of time in which his wife and daughter are still permitted to live in Australia, to cancel the applicant’s visa at this time may not result in the same extent of hardship to his wife and daughter should this cancellation have been made earlier.  Regardless, the Tribunal is cognisant that Mr Singh’s conduct to date has already had a notable impact on his daughter and his wife, and this is supported by medical evidence that is available to the Tribunal.

23. Therefore, I give this consideration a little weight against cancelling the visa.

    In what circumstances did the ground for cancellation arise?

24. Mr Singh’s visa was cancelled because he was convicted of 3 counts of sexual assault in violation of Queensland’s Criminal Code.  He was imprisoned and released after serving 4 months of his 5 and 10 month concurrent sentences.

25. As set out above, the Tribunal notes Mr Singh’s unwillingness to admit to any wrongdoing and he has provided a completely different explanation as to what occurred between himself and the complainant in his Uber on the night of 16 September 2021 compared with the statement that she made to Queensland police.  He tried to bolster his claim with provision of CCTV footage that he requested the Tribunal review with his guidance.  After viewing the footage, I advised Mr Singh that I had doubts as to whether that footage could prove the version of events he claimed occurred.  I advised Mr Singh that to my mind, the claimant appeared to be wiping her eyes as she entered her dormitory, and that this may be inconsistent with his claim that she was simply so intoxicated she could not get out of the car.

26. It is apparent that Mr Singh is greatly frustrated by the criminal process, with his representation in the criminal proceedings, and with the actions of the interpreter made available to him when his trial was due to commence.  He told the Tribunal that he had seen the complainant sitting outside the courtroom distressed prior to the commencement of the trial, and that the prosecution had pressured him into pleading guilty to spare her having to go through the details of the alleged assaults publicly.  Mr Singh claims he and his wife were told that if he pleaded guilty, there is no way his visa would be cancelled, but there was a risk that if he went to trial and was convicted, his visa might be cancelled.  The Tribunal notes that Mr Singh’s criminal lawyer has no known skills or expertise in immigration law, but it accepts that Mr Singh may not have appreciated the limitations of his lawyer’s expertise.

27. Mr Singh noted that after he pleaded guilty, was convicted and imprisoned, his lawyer behaved as if this were a good outcome in all the circumstances, and he told the Tribunal that he was upset and confused by this.  He was frustrated that the judge did not review the CCTV footage with him to help him try to clear his name.

28. The Tribunal has had the benefit of reading the summary of the claimant’s claims as set out in the delegate’s decision, and for the claimant’s own privacy and protection, the Tribunal will not rehearse the details of her claims here, other than to note the key points being that she claims Mr Singh made repeated unwanted sexual advances when he parked his car and that he continued to make his advances when they left the car before she could escape to her door where a security guard offered assistance and helped her to make a police report.  That she was likely intoxicated is not in dispute.

29. When reviewing the CCTV footage with the applicant, I note that there appeared to be a considerable amount of time after which the vehicle arrived at the claimant’s accommodation and her being able to leave the vehicle (at least 5 minutes), and that there appeared to be a degree of physical contact between Mr Singh and the claimant when she left the vehicle.  The latter could easily be explained, as Mr Singh proffered, by him doing his best to help her get out of the vehicle safely given her level of intoxication.  Mr Singh emphasised his concern that she would become sick in his vehicle and he claims he was anxious to get her out of the car when they arrived, but that she had refused to move.  Mr Singh claims she was angry with him for refusing to take her to a fast food outlet on the trip home.

30. While the Tribunal is cognisant that there are two sides to every story, and that access to justice for defendants from culturally and linguistically diverse backgrounds may not be as high as it could be, this does need to be weighed up against the seriousness of the crimes that Mr Singh has been convicted of and sentenced for by a competent court.  There is no evidence before the Tribunal to suggest that Mr Singh made any efforts to contest the sentence handed to him.  As the delegate had noted to Mr Singh both in the NOICC and their decision, sexual assault is a major health and welfare issue in Australia, and its effects on victims can be lifelong.  Violence against women, including sexual violence, is unacceptable in any community and culture, and it is everyone’s responsibility to reject and prevent violence in our community.  The Tribunal notes there is no evidence that the complainant ever sought to withdraw her claims against Mr Singh; indeed, Mr Singh saw her waiting outside the courtroom looking distressed.

31. Contrary to the delegate’s findings, at review Mr Singh did not appear remorseful for anything more than pleading guilty to the charges he faced.  He flatly denied any wrongdoing towards the complainant or any other woman.  Mr Singh did discuss his participation in programs including the Respectful Man program while he was in prison and explained to the Tribunal that he believes he has really benefitted from completing those programs.  He has provided evidence of completion of the Respectful Man program after the hearing.

32. Ultimately, Mr Singh has convictions for 3 counts of sexual assault, and those offences nor convictions did not occur due to circumstances beyond Mr Singh’s control.  These offences are not in line with Australian values.

33. Therefore, I give this consideration significant weight in favour of cancelling the visa.

    How has Mr Singh behaved towards the Department in the past? How has he behaved during this process?

34. Mr Singh has been respectful in his dealings with Department.  He retained a lawyer to assist in preparing a response to the NOICC and his response and intentions at that time appeared genuine.  He has pleaded his case with passion but also with full respect for the seriousness of the situation he finds himself in.  However at review, he has sought to make excuses for his circumstances and has reneged on previous demonstrations of remorse for his actions and now denies that anything overtly sexual occurred between himself and the complainant.  His view of the situation is an entirely innocent interaction where he was the good Samaritan trying to assist an intoxicated young woman out of a vehicle.

35. Taking into account all of Mr Singh’s actions towards the Department and the Tribunal, I give this consideration a little weight against cancelling the visa.

    Would any other visas be cancelled as a consequence of cancelling Mr Singh’s visa?

36. Mr Singh is the secondary visa holder in this case.  The circumstances do not give rise to any consequential visa cancellations under s 140 of the Act.  The Tribunal is not able to give this consideration any weight for or against a decision to cancel the visa.

    What are the legal consequences of cancelling Mr Singh’s visa?

37. A decision to cancel Mr Singh’s visa means he may become an unlawful non-citizen who may be liable for detention under s.189 of the Act and removal from Australia under s.198 of the Act.  He would also be affected by s.48 of the Act, which would severely limit his options to apply for further visas while in Australia. 

38. Therefore, I give this consideration a little weight against cancelling the visa.

    Does Australia have any international obligations that may arise if Mr Singh’s visa was cancelled?

39. Mr Singh has not made any claims that he fears for his safety or that of his family if his visa is cancelled and he returns to India. The Tribunal has considered the obligation in relation to non-refoulement under the Refugees Convention and the Refugees Protocol, as well as the Convention Against Torture and the International Covenant on Civil and Political Rights and is satisfied that removing Mr Singh from Australia will not leave Australia in breach of any of its obligations under those instruments.

40. In respect of his child, the Tribunal notes that the Convention on the Rights of the Child does incorporate provisions to try to preserve family units where possible for the benefit of children.  In this case, the family’s Subclass 485 visas naturally cease on 13 January 2025, a little over 3 months from now.  It would be open to Mr Singh’s wife and daughter to choose to remain in Australia for that time, or to return to India with Mr Singh.  Mr Singh’s daughter would neither be forcibly separated from her father by operation of any law, nor would she be forcibly removed from Australia by operation of any law.  It would be hers and her parents’ choice as to where they choose to continue to live if Mr Singh’s visa is cancelled.

41. The Tribunal notes that although none of Australia’s international obligations would be enlivened by an attempt to return Mr Singh to India, it does not consider it necessary to give this consideration weight in favour of cancelling his visa.

    Are there any other relevant matters the Tribunal should consider?

42. Mr Singh has not identified any other matters of relevance for the Tribunal to consider.  The Tribunal is satisfied that no other relevant matters warrant consideration at the time of the Tribunal’s decision.

    Conclusion

1. The Tribunal has carefully weighed up all the relevant considerations and considering the circumstances as a whole, the Tribunal concludes that Mr Singh’s visa should be cancelled.

   DECISION

2. The Tribunal affirms the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

   Mary Sheargold
   Member