Jasvir Singh (Migration)

[2020] AATA 4644

Jasvir Singh (Migration) [2020] AATA 4644 (19 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jasvir Singh

CASE NUMBER:  2002257

HOME AFFAIRS REFERENCE(S):          BCC2019/5729478

MEMBER:Andrew George

DATE:19 October 2020

PLACE OF DECISION:  Darwin

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 020 (Bridging B) visa.

Statement made on 19 October 2020 at 5:29pm

CATCHWORDS

MIGRATION – cancellation – Bridging B (Class WB) visa – Subclass 020 (Bridging B) – risk to safety of segment of Australian community – serious criminal charges – granted criminal justice stay visa and Supreme Court bail, then acquitted by jury – standards of proof – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 116, 353, 358

CASES

Gong v MIBP [2016] FCCA 561

Tien v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 31 January 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 020 (Bridging B) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(e)(i) of the Act on the basis that “… the visa holder’s continued presence in Australia poses a risk that he may engage in further alleged behaviour related to sexual conduct with underage children, which may cause them psychological and long-term harm.”[1] The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   [1] Delegate’s Decision/3.

3. This matter was listed for hearing on several occasions from April to September 2020. It is unnecessary to recount the reasons for the various adjournments, suffice to note that the progress of this case was hampered by COVID-19. Eventually, it was convenient to hear the matter after the conclusion of the applicant’s relevant criminal proceedings. The applicant was acquitted in Northern Territory Supreme Court of his criminal charges on 22 September 2020.

4. The applicant appeared before the Tribunal on 29 September 2020. The applicant was represented in relation to the review by his registered migration agent, Mr Mark of KBA Global. On 16 September 2020, Mr Mark filed submissions and a bundle of documents in compliance with the practice directions (the ‘Hearing Bundle’). No written argument relating to the issues arising in relation to the decision under review was received from the Secretary: s358(2).

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   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)(e)(i) of the Act. 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?

7. A visa may be cancelled under s.116(1)(e) if the Minister 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. The expression ‘good order of the Australian community’ is not defined in the Act. Although considering an earlier version of s.116(1)(e), the reasoning in Tien v MIMA (1998) 89 FCR 80 is still relevant. The Court held (at 94) that the term must be construed in the context in which it appears, that is juxtaposed to the words ‘the health, safety’ of the Australian community. That is, it contains a public order element and concerns activities which have an impact on public activities or which manifest themselves in a public way. It requires that there be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.

9. The applicant was charged with, “Use carriage service procure recipient U16 to engage in sexual activity with the sender who is at least 18yo and other offences” and received Supreme Court bail.[2] The alleged offences occurred in August 2019.[3] Following the cancellation of the applicant’s visa, he was granted a Criminal Justice Stay visa on 10 February 2020.[4] The granting of this Criminal Justice Stay visa was the subject of submission by Mr Mark:

   The serious nature of the charges may make it appear that his presence in Australia is or may be a risk to the safety of a segment of the Australian community. … It is odd then that on 6 February 2020, the Department granted Jasvir Singh a SC ZB 951 Criminal Justice Stay visa. Which places Jasvir back directly into the community.

   [2] Bail Undertaking and Agreement by Accused Person, 27 February 2020.

   [3] Hearing Bundle/3.

   [4] Hearing Bundle/13.

10. There is strength to Mr Mark’s submission. Why was the applicant granted a Criminal Justice Stay visa if in fact his “… continued presence in Australia poses a risk that he may engage in further alleged behaviour related to sexual conduct with underage children…?” The subsequent granting of this visa, which allowed the applicant to remain in the community, is incongruous with the decision under review.

11. The Tribunal does not accept Mr Marks submission that “To make a decision to cancel his visa based on appearances without the benefit of the outcome of the court hearing is unsound and unfair”.[5] This proposition ignores the different standards of proof required of a Supreme Court criminal trial, bound by the rules of evidence, and the Tribunal, which is not bound by technicalities, legal forms or rules of evidence: s.353(a). The submission that the Tribunal would decide on a matter on mere “appearances” should be more carefully made.

    [5] Hearing Bundle/1.

12. The Tribunal notes the correspondence from the applicant’s solicitors who represented him at the criminal trial.[6] That letter includes a sentence, which reads: “There is no doubt that Mr Singh was wrongly charged”. The basis for this opinion seems to be “… the unanimous verdict of not guilty”. The Tribunal notes that, prior to a criminal trial, the accused must be committed after a prosecutor has filed an indictment. There is no evidence before the Tribunal that these check and balances were circumvented in the applicant’s criminal proceedings. To be clear, a finding of a lack of guilt by a jury does not indicate that a person was wrongly charged. Accordingly, the assertion that the applicant was wrongly charged is not proven.

    [6] Letter from Mr Peter Maley to Mr Moses Mark dated 24 September 2020.

13. It is the decision of the Department to grant the applicant a Criminal Justice Stay visa that weighs most heavily against it in this matter. The correctness of that decision is supported by the Supreme Court’s granting of bail to the applicant, followed by his acquittal by a jury. Considering these circumstances, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(e) exists. It follows that the power to cancel the applicant’s visa does not arise and the Tribunal concludes that the visa should not be cancelled

    DECISION

14. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 020 (Bridging B) visa.

    Andrew George
    Member