Singh and Minister for Home Affairs (Migration)

Case [2019] AATA 73

Singh and Minister for Home Affairs (Migration) [2019] AATA 73 (30 January 2019)

Division:GENERAL DIVISION

File Number:           2018/6636

Re:Galjinder Singh

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member R. Cameron

Date:30 January 2019

Place:Melbourne

The Tribunal affirms the decision under review.

......................[sgd]..................................................

Senior Member R. Cameron

Catchwords

MIGRATION – Visa cancellation – Indian national – failed character test – indecent act with children – child grooming – risk of reoffending – expectations of the Australian community – decision affirmed

Legislation

Crimes Act 1958 (Vic)
Criminal Code Act 1995 (Cth)
Migration Act 1958 (Cth)
Sentencing Act 1991 (Vic)

Sex Offenders Registration Act 2004 (Vic)

Cases

R v Scott (2009) 22 VR 41
Re Do and Minister for Immigration and Border Protection [2016] AATA 390
Re Waits v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

REASONS FOR DECISION

Senior Member R. Cameron

30 January 2019

INTRODUCTION

  1. The Applicant is a citizen of India. He was, until 31 October 2018, the holder of a Class VB Subclass 885 Skilled – Independent Visa (“the Visa”). On that date, the Visa was cancelled by a delegate of the Respondent Minister under section 501(2) of the Migration Act 1958 (“The reviewable decision”). He has applied to the Tribunal for review of that decision.

    THE APPLICANT’S BACKGROUND

  2. The Applicant was born on 9 August 1988. He is 30 years of age. He arrived in Australia on 30 December 2006, having obtained a Subclass 573 (Higher Education Sector) visa.

  3. Between 12 February 2007 and 17 October 2008 he completed a Diploma of Horticulture at Holmesglen TAFE.

  4. In 2008, after undertaking a practical training course, he became a licenced security guard; what is correctly known as the holder of a “Private Agents’ licence”.

  5. In 2010 he was issued with a Subclass 485 (Temporary Graduate) visa.

  6. On 26 September 2011 the Applicant applied for the Visa. At the time of his application for the Visa he had been assessed as having the skills for the occupation of “Nurseryperson” by Trades Recognition Australia. The Visa was granted on 27 November 2013.

  7. From 2013 the Applicant has been engaged in full-time work as a security guard. Since December 2015 he has worked for Protection Pacific Security and Mr Mastaing, his supervisor, gave evidence that he is a dedicated and valuable employee.

  8. Following his convictions, details of which are outlined later in these reasons, on              24 December 2014 the Victoria Police Licensing & Regulation Division cancelled the Applicant’s Private Agents’ licence because of his convictions.

  9. The Applicant appealed to VCAT against the decision of Victoria Police to cancel his Private Agents’ licence. On 23 July 2015 VCAT set aside the decision to cancel the Applicant’s Private Agents’ licence. It reprimanded him and reinstated his Private Agents’ licence from 24 July 2015.

  10. On 28 October 2015 the Applicant applied for Australian citizenship. He disclosed his convictions on the application for Australian citizenship.

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Details
AGLC
Singh and Minister for Home Affairs (Migration) [2019] AATA 73
Case
[2019] AATA 73
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision by a delegate of the Minister for Home Affairs to cancel the visa of an Indian national. The applicant, who held a Skilled – Independent Visa, had been convicted of serious offences involving child grooming and indecent acts with a child. The delegate's decision to cancel the visa was based on the applicant failing the character test under section 501(2) of the *Migration Act 1958* (Cth).

The primary legal issue before the Tribunal was whether to exercise the discretion under section 501(2) of the *Migration Act* to cancel the applicant's visa. This required the Tribunal to consider the applicant's character, the seriousness of his offending, the risk of reoffending, and the expectations of the Australian community, as guided by Direction No. 65. The Tribunal was also required to assess the weight of countervailing considerations, such as the applicant's contributions to the Australian community and the impact on his family.

The Tribunal reasoned that the applicant's convictions for sexually based offences involving a child were inherently serious and viewed very seriously by the Australian community. It acknowledged the principle that crimes against vulnerable members of the community are particularly grave. While noting the applicant's compliance with sex offender registration requirements and evidence of his positive contributions to the community and family life, the Tribunal found that these factors were insufficient to outweigh the paramount consideration of protecting the Australian community from the risk of further harm. The Tribunal applied the principles outlined in Direction No. 65, which prioritises community protection and reflects the expectation that individuals who commit serious crimes, especially against children, should generally forfeit the privilege of remaining in Australia.

The Tribunal affirmed the delegate's decision to cancel the applicant's visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Applicant is a citizen of India. He was, until 31 October 2018, the holder of a Class VB Subclass 885 Skilled – Independent Visa (“the Visa”). On that date, the Visa was cancelled by a delegate of the Respondent Minister under section 501(2) of the Migration Act 1958 (“The reviewable decision”). He has applied to the Tribunal for review of that decision.THE APPLICANT’S BACKGROUND The Applicant was born on 9 August 1988. He is 30 years of age. He arrived in Australia on 30 December 2006, having obtained a Subclass 573 (Higher Education Sector) visa. Between 12 February 2007 and 17 October 2008 he completed a Diploma of Horticulture at Holmesglen TAFE. In 2008, after undertaking a practical training course, he became a licenced security guard; what is correctly known as the holder of a “Private Agents’ licence”. In 2010 he was issued with a Subclass 485 (Temporary Graduate) visa. On 26 September 2011 the Applicant applied for the Visa. At the time of his application for the Visa he had been assessed as having the skills for the occupation of “Nurseryperson” by Trades Recognition Australia. The Visa was granted on 27 November 2013. From 2013 the Applicant has been engaged in full-time work as a security guard. Since December 2015 he has worked for Protection Pacific Security and Mr Mastaing, his supervisor, gave evidence that he is a dedicated and valuable employee. Following his convictions, details of which are outlined later in these reasons, on 24 December 2014 the Victoria Police Licensing & Regulation Division cancelled the Applicant’s Private Agents’ licence because of his convictions. The Applicant appealed to VCAT against the decision of Victoria Police to cancel his Private Agents’ licence. On 23 July 2015 VCAT set aside the decision to cancel the Applicant’s Private Agents’ licence. It reprimanded him and reinstated his Private Agents’ licence from 24 July 2015. On 28 October 2015 the Applicant applied for Australian citizenship. He disclosed his convictions on the application for Australian citizenship. On 14 October 2017 the Applicant married Navneet Kaur. On 13 March 2018 the Applicant received a Notice of Intention to Consider Cancellation in relation to the Visa (“the NOICC”). On 18 April 2018 Applicant responded to the NOICC. As noted earlier, on 31 October 2018, a delegate of the Respondent cancelled the Applicant’s permanent Visa. On 5 November 2018, the Respondent refused the Applicant’s application for Australian citizenship. The Applicant’s wife is pregnant and due to give birth to their first child in February 2019.RELEVANT LAW Section 501 “Refusal or cancellation of visa on character grounds” provides:(2) The Minister may cancel a visa that has been granted to a person if:(a) the Minister reasonably suspects that the person does not pass the character test, and;(b) the person does not satisfy the Minister that the person passes the character test. …(6) For the purposes of this section, a person does not pass the character test if:…(e) a court in Australia or a foreign country has:(i) convicted the person of one or more sexually based offences involving a child.

Evidence

Evidence Before The Court

The parties agree that the sole issue to be decided is whether the Tribunal should exercise the discretion under section 501(2) to cancel the Applicant’s Visa.THE EVIDENCE AND OTHER MATERIALS BEFORE THE TRIBUNAL There was both documentary and viva voce evidence before the Tribunal. The documentary evidence consisted of witness statements from the following persons:a)The Applicant;b)His wife Navneet Kaur;c)Veerpal Kaur;d)Char Singh;e)Simarjeet Kaur Choong;f)Emmanuel Mastaing[2];g)Dildar Singh;h)Dilbag Singh;i)Avtar Singh Randhawa;j)Jaspreet Singh;k)Amandeep Singh.[2] It should be recorded that Mr. Mastaing’s statement was in fact a letter dated 4 January 2019 addressed to “Whom it May Concern”. Further documentary evidence was as follows:a)The G documents (consisting of two volumes)[3];b)A bundle of PAYG payment summaries-individual non-business for the financial year ended 30 June 2018 for the Applicant;c)A copy of an Order made in the Victorian Civil and Administrative Tribunal review and Regulation List on 23 July 2015 by Senior Member Davis, d)Copy of a letter dated 2 January 2019 from the Department of Home Affairs (the Department) confirming the grant of a Visitor (subclass 600) visa to Navneet Kaur Brar;[3] The first volume is entitled “Paginated G documents” and the second volume “Relevant Documents”. Additionally, both parties filed and served Statements of Issues, Facts and Contentions[4].[4] The Applicant's Statement of Facts, Issues and contentions is dated 8 January 2018 and the Respondent's is dated 16 January 2019. There was viva voce evidence from the following witnesses:a)The Applicant;b)His wife Navneet Kaur;c)Veerpal Kaur;d)Char Singh;e)Simarjeet Kaur Choong;f)Emmanuel Mastaing;g)Dildar Singh;h)Dilbag Singh;Avtar Singh Randhawa;i)Jaspreet Singh;j)Amandeep Singh.THE OFFENCES COMMITTED BY THE APPLICANT. The Applicant was convicted of two offences as follows:a)Use a carriage service to groom a person under 16 years of age for sexual activity contrary to subsection 474.27(1) of the Criminal CodeAct 1995 (Cth); andb)Wilfully commit an indecent act with a child under the age of 16, contrary to section 47(1) of the Crimes Act1958 (Vic). The details of the Applicant’s offending are found in the documentary evidence before the Tribunal, together with the viva voce evidence given by the Applicant himself during the course of the hearing. The documentary evidence before the Tribunal includes the “Reasons for Sentence” of the sentencing Judge on 24 November 2014.[5] There is also the “Summary of Prosecution Opening”[6] which was tendered in evidence before the sentencing judge as Exhibit 1. This document was responded to by the Applicant in a document prepared by counsel who appeared on his behalf at the in the County Court of Victoria. Such response was contained in the G documents and is entitled “Outline of Plea Submissions on behalf of the Accused”.[7] The contents of the Summary of Prosecution Opening were admitted by the Applicant in his Outline of Plea submissions (and during the plea hearing)[8]. Its contents were also admitted by the Applicant’s counsel during the course of this hearing before the Tribunal. There was also, amongst other documents, a transcript of a record of interview conducted by the Police with the Applicant. Extracts of what are described as “chat logs” on a messaging application that were conducted between the Applicant, the victim of his offending and a third party. These were recovered from his mobile phone together with screenshots and extracts of message exchanges across what are described as “various social media applications between the Applicant and the victim of his offending”. The Summary of Prosecution Opening also contained extracts from various text messages passing between the Applicant over various messaging applications, which will be referred to throughout the course of these reasons, between the Applicant and the victim of his offending.[5] Page 43 of the G documents.[6] Page 373 of the G documents.[7] Page 425 of the G documents.[8] Where a Defendant pleads guilty, the Summary of Prosecution Opening is tendered with other relevant documents, before the sentencing judge. Usually, (as was the case here) its contents are admitted by the Defendant and the Defendant provides a written response (as also occurred here). These documents are considered by the sentencing judge as well as submissions made by counsel for the Prosecution and the Defendant on the day of the plea hearing. Subsequently, the sentencing judge then delivers the written reasons and sentences the Defendant accordingly.

Decision

Reasons for decision

Section 500 “Review of decision” provides:(1) Applications may be made to the Administrative Appeals Tribunal for review of:...(b) decisions of a delegate of the Minister under section 501 (subject to subsection (4A)). Under section 499(1) of the Act, the Minister may give written directions to a person or body having functions or powers under the Act if such directions concern the performance of those functions or the exercise of those powers. When such a direction has been given in accordance with that section, a person or body having those functions or powers under the Act must comply with such direction (section 499(2A) of the Act). Currently, the applicable direction is Direction No. 65, Migration Act 1958 – Direction Under Section 499 (“the Direction”).Direction No. 65 It is appropriate to set out several of the sections of the Direction that are applicable with respect to this application. Paragraph 6.2, “General Guidance”, relevantly provides:(1)The Government is committed to protecting the Australian community from harm as a result of the criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.…(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501 … The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B … of this Direction. The principles referred to in paragraph 6.2 are contained in paragraph 6.3:(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law-enforcement framework, and will not cause or threaten harm to individuals or the Australian community.(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.…(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

Ratio Decidendi

Legal Principle Established

It should also be observed that, by reason of his convictions and sentencing, the Applicant became a registered sex offender under the Sex Offenders Registration Act 2004 (Vic) and is subject to that act for a period of 15 years. The Sex Offenders Registration Act provides a system for the regulation of convicted sex offenders, which requires reporting of personal details and annual reporting to the police in accordance with its requirements. The evidence before the Tribunal, which was not contested, was that the Applicant has complied with all of his obligations under that act.THE PRIMARY CONSIDERATIONS Paragraph 9(1) of the Direction with respect to non-mandatory visa cancellations prescribes the Primary considerations to be taken into account by the decision-maker. It states:(1)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:a)Protection of the Australian community from criminal or other serious conduct;b) The best interests of minor children in Australia;c) Expectations of the Australian community.Protection of the Australian community Paragraph 9.1(1) of the Direction requires the Tribunal, when considering the protection of the Australian community, to acknowledge the principle that the government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Paragraph 9.1(2) further states:(2) Decision-makers should also give consideration to:a)The nature and seriousness of the non-citizen’s conduct to date; andb)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.The nature and seriousness of the conduct Paragraph 9.1.1 of the Direction relevantly provides that:(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;…d) The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test or is not of good character under section 501(6)(c), is to be considered serious;e) The sentence imposed by the courts for a crime or crimes;f)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;g) The cumulative effect of repeated offending;h)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending.… The Tribunal concludes that the Applicant’s offending is, in all the circumstances, serious. Indeed, it was conceded by the Applicant in the Statement of Facts, Issues and Contentions, filed on his behalf, that it fell within the category of offending which is considered to be very serious[21]. A concession in similar terms was quite properly made by Applicant’s counsel during the course of the hearing.[21] Paragraph 59 of the Applicant’s Statement of Facts, Issues and Contentions.