Mandeep Singh (Migration)

[2021] AATA 2089

Mandeep Singh (Migration) [2021] AATA 2089 (26 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Mandeep Singh

CASE NUMBER:  2001218

HOME AFFAIRS REFERENCE(S):          BCC2019/6643760

MEMBER:Antoinette Younes

DATE:26 May 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 26 May 2021 at 3:49 pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – risk to the health or safety of an individual – applicant has been charged with several offences – applicant accepted Diversion Plan acknowledging wrongdoing – no conviction – compelling reasons – family support – ground for cancellation does not exist – decision under review set aside    

LEGISLATION

Criminal Procedure Act 2009 (Vic), s 59
Migration Act 1958, ss 48, 116, 140, 359
Migration Regulations 1994

CASES

Gong v MIBP [2016] FCCA 561         

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 22 January 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(e) on the basis that the applicant has been charged with several offences. 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 11 May 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother and sister-in-law.  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 by his registered migration agent.

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). 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. In support of the application for review, the applicant provided to the Tribunal a copy of the delegate’s decision record. The decision record indicates that the applicant entered Australia on 24 July 2019 as the holder of a Visitor visa (subclass 600) which was granted on 21 December 2018. On 21 October 2019, the applicant applied for a Student visa (subclass 500) to undertake studies in a Certificate III and IV in commercial cookery and a Diploma of Hospitality Management, at the Australian Career Education. The visa was granted on 10 December 2019.

9. In the course of the hearing, the Tribunal discussed with the applicant information contained in the delegate’s decision record. 

10. Relevantly, the delegate’s decision record indicates that:

    ·The Department received information from Caroline Springs Police Station (Victoria) that on 9 December 2019, the applicant has been charged with:

    1.Recklessly Cause Injury,

    2.Assault With a Weapon,

    3.Aggravated Assault.

    ·The charges relate to allegations concerning the applicant’s brother’s wife (Mrs X). The applicant had been living with his brother and Mrs X since his arrival in Australia. Tensions developed in the household and on 7 December 2019 after the applicant’s brother assaulted Mrs X, the applicant left the house with his brother.

    ·At approximately 5:30 AM on 8 December 2019, it is alleged that the applicant and his brother returned to the house while Mrs X was asleep. She woke up to see the applicant inside the house and he was holding a 10 cm knife in one hand. Mrs X ran towards the front door and the applicant followed her. He dropped the knife and picked up a 1 m long crowbar that was located in the kitchen and he continued to follow Mrs X.

    ·Mrs X pushed the applicant away from her which caused him to drop the crowbar. The applicant then grabbed Mrs X’s arm and squeezed it causing bruises. Mrs X ran out of the house and saw her husband sitting in his red Toyota Camry sedan. The husband got out of the car and walked over to the family’s white Toyota Kluger wagon and at this point, the applicant entered the rear driver’s side passenger seat and left in the car with his brother.

    ·Mrs X contacted the police who escorted her and her daughter to hospital to have her injuries assessed.

    NOTICE OF INTENTION TO CONSIDER CANCELLATION (NOITCC) & RESPONSE

11. On 8 January 2020, the Department sent to the applicant a NOITCC based on the above charges which meant that s.116(1)(e)(ii) is enlivened, in that the applicant’s presence in Australia is or may be, or would or might be, a risk to the health or safety of an individual – namely Mrs X, his sister-in-law.

12. On 15 January 2020, the applicant responded to the NOITCC as follows:

    ·The sister-in-law made those allegations in an emotional state of mind due to misunderstandings between her and his brother and she did not do so intentionally. The allegations are simply accusations and he was never involved in any such behaviour. The same allegations were made to the police.  He has never in his life assaulted, or threatened his sister-in-law, or anyone else.

    ·Since his arrival in Australia, he lived with his brother and sister-in-law. Unfortunately, there were complications and tensions between his brother and sister-in-law.

    ·He is very ambitious and hard-working. He successfully completed his bachelor’s degree in computer applications in 2015 and upon completion of the degree, he undertook research and found himself interested in cookery courses to become a chef. He has been very passionate about cooking and always helped his mother in the kitchen. Cooking is also a profession that has been in his family.

    ·When he came to Australia, he had no plans on undertaking further studies and visited Australia to spend time with his brother and sister-in-law. On arrival to Australia, he fell in love with Australia’s culture and hospitality industry.

    ·He is devastated and shocked by the allegations made against him and he is not a harmful person. All his family and friends can confirm that he is friendly and sympathetic.

    ·The cancellation of his visa would cause him significant hardship. He has dreamt of becoming a chef and he has put a lot of effort and time in working to gain experience in the area. He has gained occupational skills which are in high demand and if his visa were to be cancelled, his career would be impacted. Cancellation would also cause him and his family in India emotional hardship and distress. His parents rely on him financially and they worry about him. He is hoping that his studies, experience, and qualifications would assist him in obtaining a prosperous job in the future as a chef. He has worked extremely hard at achieving his dream of becoming a chef.

13. In accordance with s 359AA, the Tribunal discussed with the applicant information contained in the Departmental file, namely a Statement of Facts, referring amongst other things to:

    ·The applicant moved to Australia from India as he had a “significant drug and alcohol habit whilst overseas and spent six months in a drug rehabilitation centre”.

    ·The circumstances of the charges relating to the applicant and his brother’s conduct towards Mrs X on 7 and 8 December 2020.  The allegations include the applicant following Mrs X into the kitchen, dropping a knife, picking up a 1 m long crowbar that was in the kitchen, grabbing Mrs X on her arm and squeezing it causing bruising.

    ·When interviewed by the police, the applicant denied all allegations put to him, claiming that he never touched Mrs X. When challenged with photographs of injuries, he stated that she must have hurt herself. He denied ever been in possession of a knife or crowbar and stated that Mrs X set him up in relation to the photograph of the knife in his room.

    ·The applicant showed no remorse or regard for Mrs X. He was concerned for his own welfare and stated that all the allegations were false.

14. The applicant gave evidence that he was in the wrong place at the wrong time; he said he did nothing wrong and that the matter concerned his brother and sister-in-law. He stated that he wanted to stay out of it and he did not do anything. He said he came to Australia to study.

15. The Tribunal discussed with the applicant the signed Diversion Plan[1] dated 21 December 2020, provided by the applicant to the Tribunal  acknowledging that the applicant has been charged with the offence of Unlawful Assault XI, that he takes responsibility for the offence, that he has been offered the Diversion option, that he has chosen for the charge to be dealt with pursuant to the Program, that he accepts the condition of good behaviour for the period of the plan until 1 September 2021 with which he agrees to comply. The Tribunal notes that the Diversion Plan refers to “I have signed this form in the knowledge that any admission of guilt relating to the above offences will not be used against me in any subsequent court hearing should I decide subsequently not to accept Diversion”.

    [1] The Victorian CRIMINAL PROCEDURE ACT 2009 - SECT 59

16. The Tribunal asked the applicant about the signed Diversion Plan dated 21 December 2020 acknowledging that the applicant has been charged with the offence of Unlawful Assault XI and that he takes responsibility for the offence. The Tribunal asked the applicant to explain how he had signed an acknowledgement of wrongdoing, he could now be saying that he had nothing to do with the incident. He said he was being harassed and had no other choice. The Tribunal asked the applicant how he was being harassed and he told the Tribunal that he had to present to the police station twice. He stated that he had briefed a criminal lawyer who wanted to wrap it all up. He said he incurred costs. The Tribunal asked the applicant how being requested to present at a police station is harassment. He repeated that he had to go to the police twice a week, that he was under mental pressure, and wanted an end to the matter. The Tribunal indicated to the applicant that the Tribunal is entitled to take into account the fact that the applicant had signed the Diversion Plan acknowledging wrongdoing, although it is not a plea of guilty. He stated that he signed the document on legal advice.

17. The applicant denied that he was ever a drug user or that he had attended rehabilitation. He said that this information must have been given to the police by his sister-in-law with whom he has made up.

18. The Tribunal asked the applicant about his brother’s circumstances and the applicant stated that he was not sure but the matter had been “sorted out”. He said that his sister-in-law had told him that his brother was serving some time.

19. The Tribunal advised the applicant that it considered the above matters to be serious suggesting aggressive behaviour towards Mrs X. The applicant reiterated that he had done nothing wrong and that he had invited the police to fingerprint him and they decided not to do so. He stated that his sister-in-law had invited him to a birthday party and if he had done all the things that he had been accused of, she would not have had reasons to invite him. He reiterated that the matter was between his brother and sister-in-law. He said his brother was in jail and his sister-in-law visited him. He said he had said sorry to the police when he was interviewed, indicating remorse on his part. The Tribunal asked him why his brother was in jail and the applicant stated it was in relation to the events outlined above.

20. The applicant’s brother gave evidence that the applicant was not involved in the incident and that this matter is his own fault. He said his brother is innocent and that the charges laid against his brother were due to a misunderstanding. He said the police did not listen to them. The Tribunal asked the applicant’s brother about his relationship with Mrs X and he stated that they are still together as a couple and they are happy.

21. Mrs X, the applicant’s sister-in-law gave evidence that the incident occurred due to a misunderstanding between her and her husband. She stated that she contacted the police. She said she had just woken up and panicked. She stated that the applicant did not do any of the claimed actions. She stated that she had informed the police subsequently and made a statement that the applicant had nothing in his hand. She stated that the applicant is a nice person but on the day she panicked. The Tribunal requested a copy of any subsequent statement made to the police by Mrs X but expressed concerns about the inconsistent information.

22. In accordance with s 359AA, the Tribunal advised the applicant that it was concerned about the evidence of Mrs X as it would appear to be unreliable given the inconsistency. The Tribunal  indicated that it would further consider the evidence to decide proportionate weight.

23. The representative made submissions that the applicant, the applicant’s brother, and Mrs X have been his clients in that he had acted for them in visa applications. He said they are a happy couple. In relation to the Diversion Plan, the representative submitted that the applicant entered into the plan on legal advice when he was presented with two options, going to jail or sign the plan. He stated the applicant got scared and signed. He said the applicant has spoken to Mrs X who was sorry and emotional.

24. Subsequent to the hearing and as requested, the Tribunal received from the applicant documents including a copy of a signed Statement of Mrs X made to the police on 26 February 2020.  In essence, Mrs X stated that she did not want the police to take any action and that many of her prior statements were made because she was not “feeling well after the fight and my body is not reacting properly…”[2]

    [2] Statement dated 26 February 2020, para 29.

25. The Tribunal has before it inconsistent information, on the one hand the applicant has signed the Diversion Plan accepting responsibility.  He gave evidence that he signed the Plan on legal advice, which is plausible.   The Diversion Plan is not a plea of guilty or a conviction.  The applicant has denied any wrongdoing.  His brother and Mrs X gave evidence in support of the applicant’s version.  Mrs X stated that the applicant did nothing wrong.  She provided a copy of a subsequent statement explaining why she made those allegations.

26. There could be many reasons for Mrs X’s change of statements and the Tribunal can only speculate.  The evidence before the Tribunal however is that the applicant has not been convicted.  He has accepted the condition in the Plan to be of good behaviour until 1 September 2021. If the condition of the Diversion Plan is complete, the charges are dismissed with no finding of guilt and no criminal record will be recorded.  If the condition of the Plan is not complete, the matter will be referred to Court for consideration.  There is nothing to suggest that the applicant has not or would not comply with the condition of good behaviour.

27. The Tribunal views violence very seriously and domestic violence has devastating impacts on victims and their families. The Tribunal is not dealing with the actions of the applicant’s brother and the Tribunal must not be prejudiced by the brother’s actions. The Tribunal is examining the actions of the applicant. It is not the Tribunal’s place to question or critique the processes of the criminal justice system. Findings of guilt and the manner with which the Courts dispose of criminal matters are entirely within their jurisdiction and not the Tribunal. The visa cancellation scheme is based on different legal principles but the assessment of risk must be based on tangible and reasonable matters. The Tribunal has carefully considered the evidence and has decided that given the lack of conviction, the manner with which the Court has dealt with the matter, the support of the brother and Mrs X, as well as Mrs X’s inconsistent statements mean that the Tribunal is not satisfied that the presence of the applicant in Australia is or may be, or would or might be, a risk to the health or safety of an individual – namely Mrs X. For these reasons, 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.

28. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

    DECISION

29. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    Antoinette Younes
    Senior Member

    
    

…

  (2)     If, at any time before taking a formal plea from an accused in a criminal proceeding for a summary offence or an indictable offence that may be heard and determined summarily —

(a)the accused acknowledges to the Magistrates' Court responsibility for the offence; and

(b)it appears appropriate to the Magistrates' Court, which may inform itself in any way it considers appropriate, that the accused should participate in a diversion program; and

(c)both the prosecution and the accused consent to the Magistrates' Court adjourning the proceeding for this purpose—

the Magistrates' Court may adjourn the proceeding for a period not exceeding 12 months to enable the accused to participate in and complete the diversion program.