Background
Background to the litigation
For the reasons that follow the Tribunal affirms the decision under review.FACTUAL BACKGROUND The factual background to this application is as follows:(a)Mr Singh is a 31-year old citizen of India who arrived in Australia on 30 December 2006[1] on a Subclass 573 student visa. This visa category only allowed tertiary study and closed for new applications on 1 July 2016;[2][1] Exhibit R1, 39.[2] Visa holders were limited to tertiary education courses and had to apply for a different visa if their study intentions changed: ‘If you want to change to a course that is in a different education sector to your current course for example changing…to a Diploma course, you will need to apply for a new Student Visa…because your visa subclass will not be appropriate for your new course...’(b)Although initially intending to study at university,[3] Mr Singh instead undertook a vocational course in horticulture. He fulfilled the requirements for a Diploma in Horticulture during 2007 and 2008,[4] and concurrently held enrolment in a Bachelor of Business (“BBus”) degree with the same training provider.[5] He did not undertake any units in the BBus and cancelled his enrolment in January 2009 after completing his horticulture course;[6] [3] Exhibit R1, 984 [30]; [43].[4] Ibid, 321-329; 331.[5] Ibid, 938-939.[6] Ibid, 940.(c)Mr Singh was granted a Graduate Temporary (Subclass 485) visa in 2010,[7] allowing him to live, work and study in Australia. He applied for the visa that is the subject of this application in 2011.[8] It was granted in November 2013[9] after he completed the required industry experience component and was assessed as having the required skills for the occupation of ‘Nurseryperson.’[10] Mr Singh also worked as a security guard from 2013; [7] Ibid, 63, [5].[8] Ibid, 206-219.[9] Ibid, 346-349.[10] Ibid, 214.(d)Mr Singh has departed Australia five times between March 2009 and August 2018, returning to India on each occasion for periods of between two weeks and two months;[11][11] Ibid, 39.(e)On or about 26 December 2013 Mr Singh began communicating on the internet with a person he initially thought was a 26 year old Korean female.[12] By 15 February 2014 he learned that the person he was communicating with was instead an 11 year old child.[13] Mr Singh told friends about this and was counselled to stop communicating with the child, which he ignored;[14][12] Ibid, 44 [4]; 488 [23].[13] Ibid; 44 [4]; 849-850; 989 [6].[14] Ibid, 44 [4]; 850.(f)Mr Singh arranged to meet the child on 21 February 2014, collected her in his car, and drove to a nearby park where he initiated physical contact.[15] They were interrupted by a telephone call from the child’s mother, who had been alerted to the meeting by another parent;[16] [15] Ibid, 44 [5]; 494 [56]; 993 [20].[16] Ibid, 44 [5].(g)Mr Singh subsequently told friends he kissed the child and knew this was wrong because of her age.[17] Despite warnings that his actions were illegal and he should cease further contact,[18] Mr Singh continued communicating with the child, including in a highly sexualised manner; [17] Ibid, 45 [6].[18] Ibid, 1002 [7].(h)Police executed a search warrant at Mr Singh’s home on 12 March 2014,[19] following which he was arrested and his mobile telephone seized.[20] Mr Singh was subsequently granted bail;[21] [19] Ibid, 45 [7]-[8].[20] Ibid, 842 [14].[21] Ibid, 46 [13].(i)On 24 November 2014 Mr Singh was convicted of sexual offences against a child and sentenced to 12 months imprisonment. By virtue of his convictions he became a registrable sex offender under the Sex Offender Registration Act 2004 (Vic) (SORA), which imposed reporting obligations on him for a period of 15 years;[22] [22] Ibid, 50 [29]; 436. The SORA regulates those convicted of sexual offences by imposing annual reporting requirements to police in respect of personal details and other requirements.(j)On 24 December 2014, Victoria Police Licencing and Regulation Division cancelled Mr Singh’s private security licence because of his convictions, rendering him unable to continue working as a security guard. Mr Singh unsuccessfully sought revocation of that decision, but on 23 July 2015 his appeal to the Victorian Civil and Administrative Tribunal was successful and his security licence was reinstated.[23] Although Mr Singh worked for a period at a bakery and as a factory hand, he returned to security work from August 2015; [23] Ibid, 932.(k)On 28 October 2015 Mr Singh applied for Australian citizenship, disclosing his convictions.[24] On 7 June 2017 he received a Request for Further Information, inviting him to comment on or respond to information that he may not be of good character. Mr Singh’s citizenship application was subsequently refused;(l)During a visit to India in October 2017 Mr Singh married his current wife who is a citizen of India.[25] He lodged an offshore partner visa application for her[26] and she joined him in Australia the following month on a Subclass 600 Visitor visa, which was subsequently renewed;[27] (m)On 13 March 2018 Mr Singh received a ‘Notice of intention to consider cancellation’ of his visa, on the basis that he had a ‘substantial criminal record’ within the meaning of s 501(7) of the Act, and consequently did not pass the ‘character test’ by virtue of s 501(6)(a) of the Act;[28] (n)After considering Mr Singh’s responses,[29] a delegate of the Minister decided on 31 October 2018 to cancel Mr Singh’s visa under s 501(2) of the Act.[30] Mr Singh was notified of this decision on 7 November 2018;[31](o)Mr Singh presented himself voluntarily to the Department of Home Affairs and was taken into immigration detention on 12 November 2018,[32] where he has since remained;(p)By application dated 13 November 2018, Mr Singh applied to this Tribunal for a review of the delegate’s decision;[33] (q)On 30 January 2019 the Tribunal, differently constituted, affirmed the cancellation decision;[34] (r)In February 2019 Mr Singh’s wife gave birth in Australia to the couple’s first child;[35](s)Mr Singh sought judicial review of the Tribunal’s January 2019 decision in the Federal Court of Australia. On 6 June 2019 the Federal Court set aside the Tribunal’s decision,[36] giving rise to these proceedings; and(t)On 9 July 2019 Mr Singh withdrew the partner visa application he had lodged for his wife following their marriage in India. She has since applied for a different category of visa and currently holds a bridging visa.[24] Ibid, 64 [7]; 350-372.[25] Ibid, 136-140.[26] Ibid, 95 [26].[27] Ibid, 926-928.[28] Ibid, 40-42.[29] Ibid, 63-172.[30] Ibid, 12-24.[31] Ibid, 9-11.[32] Ibid, 950 [45]; 956 [29].[33] Ibid, 1-7.[34] Singh v Minister for Home Affairs (Migration) [2019] AATA 73.[35] Exhibit A1, 1 [7].[36] Singh v Minister for Home Affairs [2019] FCA 905.LEGISLATIVE FRAMEWORK
Evidence
Evidence Before The Court
The issue to be determined is whether the discretion under s 501(2) of the Act to cancel Mr Singh’s visa should be exercised. EVIDENCE BEFORE THE TRIBUNALDocuments “G-Documents” numbering 1289 pages were taken into evidence,[40] as was a Statutory Declaration from Mr Singh dated 22 October 2019,[41] and an unsigned and undated statement from Mr Singh’s sister.[42] Other documents were lodged by Mr Singh’s legal representatives prior to the hearing, many of which were not referred to during the hearing and which Mr Aleksov chose not to tender when invited to do so. Mr Aleksov submitted that it was for the Tribunal to consider what regard, if any, should be had for these documents. The following documents were taken into evidence as Tribunal exhibits:[40] Exhibit R1.[41] Exhibit A1. [42] Exhibit A2.(a)An unsigned and undated Statutory Declaration from Mr Singh’s wife, lodged with the Tribunal on 7 October 2019.[43] Mr Singh’s wife was not called to give evidence;[43] Exhibit T1. (b)A letter from a general practitioner dated 15 January 2019 referring to a dust mite allergy suffered by Mr Singh’s sister, and how a carpet at her workplace was aggravating the allergy.[44] The author of the letter was not called to give evidence;[44] Exhibit T2.(c)A referral from a general practitioner dated 12 July 2019 for Mr Singh’s wife.[45] The author was not called to give evidence at the hearing; [45] Exhibit T3. (d)A further referral from a general practitioner dated 24 August 2019 for Mr Singh’s wife.[46] The author was not called as a witness;(e)A letter from a psychologist dated 10 September 2019 to ‘whom it may concern’ regarding consultations with Mr Singh’s wife. [47] The psychologist was not called as a witness. The letter states that Mr Singh’s wife attended an initial appointment on 26 July 2019 and ‘five counselling sessions at the time of writing.’[48] The psychologist states that Mr Singh’s wife ‘presented with quite a significant profile of depressive symptoms in the context of parenting her 6month old baby…with very few available supports, whilst dealing with the uncertainty of her husband’s detention and Visa status;’ (f)An undated letter from a nurse addressed to ‘whom it may concern,’ requesting leniency in Mr Singh’s appeal.[49] The nurse was not called as a witness. The letter refers to three visits with Mr Singh’s wife and child on unspecified dates to address issues she was experiencing as an ‘isolated first-time mother whose husband is currently in detention with an expired visa.’ Reference is also made to Mr Singh’s wife suffering depression as a result of her husband’s detention and that she is on a ‘bridging visa with no income and an uncertain future;’(g)An email to Mr Singh from a real estate agent dated 25 September 2019, to the effect that the house he was renting, and in which his wife, sister, and children currently live, was being put up for sale.[50] The real estate agent was not called as a witness;(h)An email to Mr Singh from a real estate agent dated 26 August 2019 to the effect that rent was overdue. Mr Singh responded that he had paid the outstanding amount and would process further rental payments on time in future.[51] The real estate agent was not called as a witness;(i)A birth Certificate for Mr Singh’s biological child dated 27 May 2019;[52](j)An Order Completion Report from the Victorian Department of Justice dated 14 August 2019, to the effect that Mr Singh had discharged his obligations under a Community Correction Order (“CCO”) between 24 November 2014 and 23 May 2016;[53](k)A letter from Corrections Victoria dated 6 September 2019 to the effect that Mr Singh had participated in the Better Lives Program between 13 April 2015 and 28 September 2015;[54](l)Certificates relating to Mr Singh’s participation in multiple free online courses during August and September 2019;[55] and(m)A letter from Mr Singh’s former work supervisor in the security industry dated 24 September 2019.[56][46] Exhibit T4.[47] Exhibit T5. [48] Exhibit T5.[49] Exhibit T6. [50] Exhibit T7. [51] Exhibit T8. [52] Exhibit T9. [53] Exhibit T10. [54] Exhibit T11. [55] Exhibit T12. [56] Exhibit T13. Witnesses
Decision
Reasons for decision
No additional considerations were advanced by the parties and I have not identified any additional ‘other considerations’ relevant to the specific circumstances of the applicant’s case as provided for at cl 10(1) of the Direction. CONCLUSION Because of the combined effects of ss 501(6)(a), 501(6)(e)(i), and 501(7)(c) of the Act, Mr Singh does not pass the character test. That is because he has been convicted of sexually based offences involving a child and sentenced to a 12 month term of imprisonment. In determining whether Mr Singh should forfeit the privilege of continuing to hold a visa, the primary and other considerations at Part A of the Direction have been applied to the specific circumstances of his case. Mr Singh conceded at the present hearing that aspects of his previous evidence, including at the January 2019 hearing, were not truthful and constituted ‘covering up.’ That it has taken Mr Singh over five years to make the concessions he has, gives rise to concerns about previous expert assessments regarding his insight, remorse, and rehabilitation. Mr Singh’s offending is objectively very serious and the community’s tolerance for any risk of future harm is considered very low given the seriousness of the potential harm. While the Tribunal accepts the expert evidence that Mr Singh’s risk of reoffending is low, it is nevertheless a real and unacceptable risk. The Tribunal has placed substantial weight on the primary consideration Protection of the Australian community in favour of exercising the discretion to cancel Mr Singh’s visa. Having considered the deemed community expectations against the specific circumstances of Mr Singh’s case, including factors like the time he has spent in Australia and the positive contributions he has made, the Tribunal concludes the community would nevertheless expect Mr Singh’s visa to be cancelled. Substantial weight is placed on this primary consideration in favour of exercising the discretion to cancel his visa. Notwithstanding the uncertainty surrounding the visa status of Mr Singh’s wife and child, and the extent to which his former brother-in-law will continue to perform a parental role for Mr Singh’s nephews, the Tribunal concludes it is in the Best interests of children in this matter for Mr Singh to remain in Australia. The Tribunal places substantial weight on this primary consideration in favour of not exercising the discretion to cancel his visa. Of the other considerations relevant in this matter: (a)The Tribunal accepts that after living in Australia for almost 13 years, Mr Singh has strong ties to a close circle of family and friends who would be emotionally affected by his repatriation. The Tribunal places moderate weight on this consideration in favour of not exercising the discretion to cancel his visa. (b)In relation to Impact on Australian business interests, the available evidence about Mr Singh’s role as a security guard does not displace the general presumption that weight would only generally be given where visa cancellation significantly compromises the delivery of a major project, or delivery of an important service in Australia. That is clearly not the case and this consideration is given no weight. (c)The impediments Mr Singh would face if repatriated to India can be characterised as challenging, but not insurmountable. The Tribunal places slight weight on this consideration in favour of not exercising the discretion to cancel Mr Singh’s visa.
Ratio Decidendi
Legal Principle Established
The Tribunal has considered the statements and letters in evidence supportive of Mr Singh. None of the authors gave evidence at the present hearing other than Mr Singh’s sister. Her evidence can be summarised as follows: (a)She adopted her statement as true and accurate, which was first translated to her by an interpreter;(b)She migrated to Australia with her husband in 2009. They have two children. She submits that she and her children are Australian citizens;(c)Mr Singh loves his nephews and plays with them a lot. She claimed her eldest child’s teacher had recently told her the child had become ‘very isolated.’ When asked whether she thought that resulted from her husband leaving the family home in May 2019 or from Mr Singh entering immigration detention in late 2018, she said it was both; (d)Since separating from her husband she has had no contact with him. She was currently exploring his obligation to pay child support. She had also attended counselling to deal with the stress of separation, impending divorce, and the uncertainty surrounding her brother’s immigration status;(e)She was not aware of Mr Singh’s online relationships, including with the girl against whom he offended, until police arrested him. He told her after being released on bail that he ‘did a very silly mistake,’ by being in contact with an 11 year old girl, including sending her messages in a ‘sexual manner;’(f)When her husband was still in the family home they visited Mr Singh in immigration detention two to three times a week. Her husband was the only person in the home with a driver’s licence, so visits to Mr Singh since their separation were now about once a week. Mr Singh’s sister stated that sometimes they hire an Uber and sometimes a friend drives them;(g)Her husband previously paid for rent and other expenses, but she now relied heavily on Mr Singh to assist financially. She works part-time three days a week, from which she earned $450 weekly after tax, and also claimed to receive income support payments from Centrelink of $117 per fortnight. Her monthly rent was $1763 and Mr Singh paid the last monthly rental on 23 October 2019. Whenever she needed ‘money or any help,’ she stated that Mr Singh ‘never says no.’ Despite his financial help, she was finding it difficult to meet all of her expenses and recently had to stop her eldest child’s swimming classes;(h)Because the owner of the property she lived in with Mr Singh’s wife was being put up for sale, they would have to move and she hoped Mr Singh would be able to help the family find new accommodation;(i)She would not accompany Mr Singh back to India if he was repatriated, because she wanted a future for her and her children here;(j)She did not have contact with her brother or sister in India, who she had last seen at their mother’s funeral in 2018; and(k)Her mother and father were deceased and her grandparents were in their 90’s so Mr Singh could not rely on any support if returned to India. PRIMARY CONSIDERATIONSProtection of the Australian community from criminal or other serious conduct
