Singh and Minister for Home Affairs (Migration)

Case [2018] AATA 4302

Singh and Minister for Home Affairs (Migration) [2018] AATA 4302 (20 November 2018)

Division:GENERAL DIVISION

File Number(s):      2018/5067

Re:Paramjeet Singh

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:20 November 2018

Place:Sydney

The reviewable decision is affirmed.

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

Chris Puplick AM, Senior Member

CATCHWORDS

MIGRATION – revocation of visa cancellation – Ministerial Direction No. 65 applied – primary considerations considered –  protection of the Australian community – best interests of minor children – expectations of the Australian community – other considerations – strength, nature and duration of ties –  impact on victims – extent of impediments if removed – decision under review affirmed

LEGISLATION

Crimes (Sentencing and Procedures) Act 1999 (NSW)

Migration Act 1958 (Cth)

CASES

Abebe v Commonwealth [1999] HCA 14

Aciek and Minister for Home Affairs (Migration) [2018] AATA 2755

AFY18 v Minister for Home Affairs [2018] FCA 1566

Applicant in WAD 531/2016 v Minister for Immigration and Border Protection [2018] FCA 27

BFXK v Minister for Immigration and Border Protection [2018] AATA 886

Bushell v Repatriation Commission [1992] HCA 47

CHFQ and Minister for Home Affairs (Migration) (2018) AATA 3858

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307

Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47

Do and Minister for Immigration and Border Protection [2016] AATA 390

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

Fu (Migration) [2018] AATA 732

G v Minister for Immigration and Border Protection [2018] FCA 1229

Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458

KDSP and Minister for Immigration and Border Protection [2017] AATA 2169

Khalil v Minister for Home Affairs [2018] FCA 1712

LMYW and Minister for Immigration and Border Protection (Migration) [2016] AATA 936

Minister for Immigration and Ethnic Affairs v Guo and Another [1997] 144 ALR 567

Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13

Murphy and Minister for Immigration and Border Protection [2018] AATA 750

Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639

Re ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA

Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634

Re Gooley and Companies Auditors and Liquidators Disciplinary Board and Australian Securities and Investments Commission (2000) 62 ALD 472

QKVH and Minister for Home Affairs (Migration) [2018] AATA 1855

Rabino and Minister for Immigration and Border Protection [2016] AATA 999

Shi v Migration Agents Registration Authority [2008] HCA 31

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

SZJSS and Others v Minister for Immigration and Citizenship [2010] HCA 48

The Trustee for the Fuzzy Events Unit Trust and Minister for Home Affairs (Migration) [2018] AATA 3273

Williams v Minister for Immigration and Border Protection [2014] FCA 674

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

SECONDARY MATERIALS

Dennis Pearce, Administrative Appeals…

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AGLC
Singh and Minister for Home Affairs (Migration) [2018] AATA 4302
Case
[2018] AATA 4302
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal to the Administrative Appeals Tribunal by Mr. Singh against the Minister for Home Affairs' decision not to revoke the cancellation of his visa. Mr. Singh's visa had been mandatorily cancelled under section 501(3A) of the *Migration Act 1958* (Cth) due to his substantial criminal record, specifically a sentence of imprisonment of 12 months or more. The Tribunal was required to conduct a de novo merits review of the decision not to revoke the cancellation.

The primary legal issues before the Tribunal were whether the cancellation of Mr. Singh's visa should be revoked, considering the provisions of Ministerial Direction No. 65. This involved assessing the "primary considerations" of the protection of the Australian community, the best interests of any minor children in Australia affected by the decision, and the expectations of the Australian community. The Tribunal also had to consider "other considerations," including the strength, nature, and duration of Mr. Singh's ties to Australia, the impact on victims of his offending, and the extent of impediments to his removal from Australia.

The Tribunal reasoned that it was required to make its own independent assessment of the material before it, standing in the shoes of the original decision-maker. In applying Ministerial Direction No. 65, the Tribunal found that Mr. Singh's offences were numerous, repeated, and frequently involved violence, including against a vulnerable partner, thus rating as serious. The Tribunal also considered the risk of reoffending, noting that the word "risk" in this context implies more than a mere possibility of criminal conduct. While acknowledging Mr. Singh's remorse, his engagement with rehabilitation programs, and his commitment to his young daughter, the Tribunal ultimately affirmed the decision not to revoke the visa cancellation.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

As a child Mr Singh learned to speak both Hindi and Punjabi. His father attested that he still speaks reasonable conversational Hindi. He was raised in a Sikh environment but upon arrival in Australia subsequently converted to Christianity.BACKGROUND: VISA STATUS On his arrival in Australia on 21 March 1988 Mr Singh was the holder of a Class UA visa and then held a series of visas culminating in his current Class BF Subclass 154 Transitional (Permanent) visa being issued on 25 June 1998. On 6 April 2017 the Minister’s Delegate made a determination that Mr Singh’s visa should be cancelled under the provisions of section 501(3A) of the Migration Act 1958 (the Act).[1] Mr Singh was notified and signed an acknowledgement of this notification on 14 April 2017.[2] This section (see below) mandates that if a person has been sentenced to a term of imprisonment of 12 months or more, they are taken to have a “substantial criminal record” and thereupon it is mandatory for the Minister to cancel their visa.[1] Section 501 – G Documents at [85].[2] Ibid at [89]. On 5 May 2017 Mr Singh applied for a review of the cancellation decision and gave reasons why this decision should be revoked. The Department then sent further material to Mr Singh, namely details of his National Police Certificate and extracts from various sentencing remarks by a number of Magistrates. As a result of consideration of these various representations, the Minister’s Delegate, on 28 August 2018 decided that the cancellation decision would not be revoked and Mr Singh was notified of this by letter dated 29 August 2018.[3] He then exercised his right of appeal to this Tribunal on 4 September 2018.[3] Ibid at [9]. The Tribunal heard the matter on 8 and 9 November 2018, noting that under the provisions of section 500(6L) of the Act it was required to publish its decision on or before 21 November 2018, failing which the decision of the Minister stands.[4][4] See recent discussion of this section in Khalil v Minister for Home Affairs [2018] FCA 1712 per Colvin J. It is important to set out the legislative framework within which such decisions are made and the basis upon which original decisions may be subject to review.THE LEGISLATIVE SCHEME IN BRIEF Section 501(3A) of the Act provides that the Minister must cancel a person’s visa in the following circumstances: (a) the Minister is satisfied that the person does not pass the character test because of the operation of:(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or... and(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. This visa cancellation process is mandatory. Section 501(6)(a) of the Act then provides that a person does not pass the character test if they have a “substantial criminal record”. Relevantly for this application, s 501(7)(c) provides:(7) For the purposes of the character test, a person has a substantial criminal record if:…(c) the person has been sentenced to a term of imprisonment of 12 months or more;

Evidence

Evidence Before The Court

Mr Singh also referred on a number of occasions to another traumatic event in his life when he found out that this then long-term partner had terminated a pregnancy entirely against his wishes.[33] This led to their separation and he has continued to harbour deep feelings about this particular event.[33] Tender Bundle, Volume 2 at [1142].EVIDENCE ON MR SINGH’S BEHALF Mr Paramjeet Singh was unrepresented before the Tribunal which invited him to give a detailed opening statement setting out his reasons why the visa cancellation should be revoked. In doing so, Mr Singh admitted to all of the offences in his National Police Record, although disputing many of the details of them. He indicated that he realised that he has a problem with anger management and that in previous years this had been compounded by the use of illicit drugs. He told the Tribunal that he had started using marijuana at about age 19 and had been a “daily” user until about 2011. At that stage he started using methylamphetamine (in the form of “ice”) and that this had continued until about 2015. He expressed himself as deeply sorry and remorseful and said that his time in detention, during which his daughter was born, had made him aware of the consequences of his misbehaviour and that while it had taken “a long, long time to learn” his lesson, he now had. He agreed that his past behaviour was unacceptable and told the Tribunal that he had completed the EQUIP programme in jail. He reported seeing a psychiatrist weekly and that this had helped him develop some insight into the nature of his behaviour and the need to change. He recounted details of his childhood and the problems of separation from his family in India and arrival in Australia. He made the point to the Tribunal that the impact of his being a witness to, and being threatened during, the commissioning of a murder had had a lasting effect on him and while he realised he should have sought counselling for PTSD he had “left it too late”. He told the Tribunal that he wanted to prove that, “I’m not just a waste of time – I still have good in me” and that in future there was “no room for carelessness or recklessness or for any further offending”. Above all he stressed his commitment to his young daughter and that removal of Australia would be “a sentence for life” and undo everything he had so far achieved by way of personal rehabilitation. When the Respondent took Mr Singh through his record of criminal offences, in almost all cases, while not disputing the fact that some sort of incident took place, he provided an alternative version of the actual narrative of events:oIn relation to the incident where he damaged a bus door he maintained that the party at fault was the bus driver for failing to allow his partner to board the bus;oIn relation to the road rage incident he maintained that the party at fault was the other driver who verbally provoked him when he confronted him about the contested parking spot;oIn relation to the assault on the pharmacist he insisted that he had not struck the pharmacist, only kicked him, and that, in relation to the security guard he only hit him with an open palm not a closed fist;oIn relation to the assault upon the person with whom he was sharing a flat, his version was that this resulted from him being locked in an apartment when the victim somehow refused him access to a set of keys after stealing the applicant’s money;oIn relation to the Christmas Day assault on his partner, his version was that it was she who provoked the incident and that it was she who first started throwing plates at him; his reactions were in response;oIn relation to some of the breaches of AVOs he insists that this was at the initiation of his partner and that, in any case, she was not supportive of the AVOs and so there was no reason to observe them; andoIn relation to the attempts to suborn his partner to be a false witness he insists that this was suggested to him by a third party in the detention centre whose voice can be heard on one of the recordings.[34][34] Tender Bundle, Volume 2 at [1003].

Decision

Reasons for decision

In doing so it is important to note that the Tribunal must approach this matter de novo.THE TRIBUNAL IN THE SHOES OF THE DECISION-MAKER The Tribunal is established as a merits-review body. Its responsibility is to review administrative decisions (made under legislation conferring such powers upon it) taking into account the merits of the case in question, the need to reach the correct and preferable decision in each individual case and to promote the objectives of good government.[56][56] Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307. It is important to state the general principles upon which the Tribunal must proceed in its own independent decision making. These may be summarised as including:“The Tribunal’s duty is to make the correct and preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.”[57]“The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether the decision was the correct and preferable one on the material before the Tribunal.”[58]“The decision under review, as distinct from the reasons for it, must be given no weight by the AAT. The decision is to be reviewed for the correct and preferable decision reached: the original decision itself cannot influence the AAT in reaching its conclusion.”[59]“….in reviewing the Board’s decision, we must make the decision afresh and are not limited to a consideration of whether the Board’s decision was open on the evidence. We are not limited to the evidence before the Board.”[60]“The review undertaken by the Tribunal was in the nature of a de novo review on the merits. For that purpose, the Tribunal stood in the shoes of the original decision-maker (here the maker of the non-revocation decision) and was so obliged to apply the criteria governing the exercise of the power in s 501 CA of the Act at the time of its own decision.”[61]“Davies J acknowledged that regard might be had to the decision of the primary decision-maker as part of the “material before the Tribunal”…….But ultimately, it was for the Tribunal to reach its own decision upon the relevant material, including any new, fresh, additional or different material that had been received by the Tribunal as relevant to its decision. In effect, this was no more than a consequence of the Tribunal’s obligation to conduct a true merits review.”[62]“…. the A.A.T is an administrative decision-maker, under a duty arrive at the correct or preferable decision in the case before it according to the material before it.”[63][57] Re Drake and Minister for Immigration and Ethnic Affairs(No.2) [1979] 2 ALD 634 at 640.[58] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at page 11.[59] Dennis Pearce, Administrative Appeals Tribunal (LexisNexis Butterworth, 4th edition, 2015) at page 301 citing Collins v Minister for Immigration and Ethnic Affairs (1981) 4 ALD 198; Commonwealth v (1985) 8 ALD 554 and Re KLGL and QCYY Australian Prudential Regulation Authority [2008] AATA 452.[60] Re Gooley and Companies Auditors and Liquidators Disciplinary Board and Australian Securities and Investments Commission (2000) 62 ALD 472 at [72].[61] AFY18 v Minister for Home Affairs [2018] FCA 1566 at [9] per Charlesworth J.[62] Shi v Migration Agents Registration Authority [2008] HCA 31 at 37 per Kirby J.[63] Bushell v Repatriation Commission [1992] HCA 47 at [3] per Brennan J.

Ratio Decidendi

Legal Principle Established

It is up to the Tribunal to assess the material before it and to assign it the weight and value it thinks appropriate. This view is clearly stated in the authorities:“The weighing of various pieces of evidence is a matter for the Tribunal.”[64]“In the end the criticisms made by the applicant of the Tribunal’s reasoning are criticisms if the factual findings it made and are criticisms that fasten upon the weight that the Tribunal attributed to various pieces of information that it had available for consideration. But what weight the Tribunal gave to those various pieces of information was for it to say.”[65][64] SZJSS and Others v Minister for Immigration and Citizenship [2010] HCA 48: unanimous decision of the High Court.[65] Abebe v Commonwealth [1999] HCA 14 [197] per Gummow and Hayne JJ.MINISTERIAL DIRECTION 65: PROVISIONS – PRIMARY CONSIDERATIONS The Tribunal returns to the provisions of Ministerial Direction 65. The Direction establishes various matters for consideration, describing some as “primary considerations” and others as “other considerations”. Three “primary conditions” related to revocation requests are set out as:·Protection of the Australian community;·Best interests of minor children in Australia affected by the decision; and·Expectations of the Australian community.[66][66] Part 13. The protection of the Australian community requires a decision-maker to have regard to both the likelihood of the applicant reoffending if permitted to remain in Australia and the potential adverse consequences of any such reoffending. There are two principal elements for consideration, the nature and seriousness of the conduct under question and the risk to the Australian community should the applicant reoffend. Part 13.1.1 of the Direction makes it clear that in assessing the nature and seriousness of the offences regard should be had to such matters (inter alia) as whether the offences involved violence or sexual violence and whether they were committed against vulnerable people. The decision-maker should also consider the frequency of offences and the sentences imposed together with the cumulative effect of repeated offending and whether they demonstrate an increase in their level of seriousness. On all of these criteria Mr Singh’s offences rate as serious. They were numerous and repeated. They frequently involved acts of violence. They were perpetrated against vulnerable people (his pregnant partner). Mr Singh was frequently before the courts where he received numerous sentences. His offences commenced with minor infringements starting with motor vehicle offences, moving onto road rage offences, petty acts of drug possession and shoplifting but graduating to violence against strangers and then violence against his domestic partner. Part 13.1.2 of the Direction directs the Tribunal’s attention to the risk of reoffending and the consequences of such reoffending for the Australian community. There is guidance for this Tribunal in determining what constitutes “risk” in this context. This was provided by Deputy President Forgie in QKVH[67] as follows:The word “risk” is not defined but its ordinary meanings when used as a noun, as it is in s 501(6)(d)(i), include the following which is relevant:“... 1 the chance or possibility of suffering loss, injury, damage, etc; .. Therefore, having regard only to the ordinary meaning of the word “risk”, the issue under s 501(6)(d)(i) becomes whether there is a chance or possibility of QKVH’s engaging in criminal conduct in Australia. The word “risk” must, however, be interpreted in its context and that is the context of the Migration Act and so in the context of who may, and may not, come to and/or remain in Australia. In that context, the word “risk” cannot be seen to mean simply a “chance or possibility” of a person’s engaging in criminal conduct in Australia for to do so would not take account of the realities of everyday life. Take, for example, members of the Australian community who drive a motor vehicle. Even if they have never done so before, there is a chance or possibility that any one of them may have a lapse in concentration or judgment and commit an offence against the road laws of a type for which a conviction may be imposed. That chance or possibility will, of course, be greater if the person has a history of traffic offences so that the risk of his or her doing so increases. [67] QKVH and Minister for Home Affairs (Migration) [2018] AATA 1855 at [13].