Singh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2022] AATA 4800

Singh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 4800 (22 December 2022)

Division:GENERAL DIVISION

File Number(s):      2022/8506

Re:Gursharandeep Singh

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member Raif

Date:22 December 2022

Place:Sydney

The decision under review is set aside and remitted to the Department with a direction that the visa not be refused under section 501(1) of the Act.

...............................[SGD].........................................

Senior Member Raif

Catchwords

MIGRATION – visa refusal – Class VB – refuse to grant that visa under s. 501(1) where the applicant does not pass the character test – discretionary cancellation – no criminal record – no risk of future offending – Direction no. 90 considered – relevant law and material considered – decision under review is set aside and remitted.

Legislation

Migration Act 1958 (Cth)

Cases

EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1536 at [182].

BHL19 v MICMSMA [2020] FCAFC 94

Nafady v MICMSMA [2022] FCA 1434 at [53]

Secondary Materials

Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Senior Member Raif

22 December 2022

1. This is an application for review of a decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the respondent) made on 28 September 2022 to refuse to grant a Class VB visa to the applicant.

2. The applicant is a national of India. He first entered Australia as a holder of a Student visa in 2007 and he was granted the Class VC Skilled visa in June 2012. In October 2014 the applicant made the application for the Skilled (Residence) Class VB visa. In September 2022 the delegate made the decision to refuse to grant that visa under s. 501(1) of the Migration Act 1958 (Cth) (the Act). (The notification of the decision appears to be erroneously dated but the Tribunal is of the view that it does not invalidate the decision itself – s. 501G(4)) of the Act.

3. The applicant seeks review of the delegate’s decision. The issues before the Tribunal are:

   (a)whether the applicant passes the character test as required by section 501 of the Act and if not;

   (b)whether the Tribunal should exercise its discretion to refuse to grant the applicant the visa.

   RELEVANT LEGISLATION AND POLICY

4. Pursuant to section 501(1) of the Act, the Tribunal acting as the decision maker may affirm a decision to refuse the grant of a visa if it is satisfied that the applicant does not pass the character test.

5. The character test is set out at section 501(6) of the Act. Relevantly section 501(6)(d) of the Act provides that a person does not pass a character test if,

   in the event the person would be allowed to enter or to remain in Australia, there is a risk that the person would

   (i) engage in criminal conduct in Australia.

6. Subsection 501(6)(d)(i) of the Act requires the making of an assessment about whether there is a ‘risk’ that the applicant ‘would engage in criminal conduct in Australia’. That assessment involves a consideration of past conduct, usually previous criminal offending, as well as conduct after any such offending, which will often involve issues around remorse and rehabilitation for past offending. This is the nature of the ‘probabilistic assessment’ to which Perry J referred in EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1536 at [182].

7. In BHL19 v MICMSMA [2020] FCAFC 94 the Court held section 501(6)(d) has been cast by the legislature in wide terms, with low thresholds; that a person does not pass the character test if found to meet a threshold as low as “a risk” of representing a “danger to the Australian community”; and that section 501(6)(d) of the Act does not refer to any particular level of risk, be it high, low, remote or negligible, rather it is an evaluative exercise for the Minister to conduct as to whether any such risk exists, and if so, what the consequences might be: per Bromwich J (White J agreeing) at [324], [325], [337], [338].

8. Should the applicant not satisfy the character test, the discretion to refuse the visa under section 501(1) of the Act is enlivened. The exercise of the discretion is governed by the considerations set out in Ministerial Direction No. 90 – Visa Refusal and cancellation under section 501 and revocation of mandatory cancellation of a visa under section 501CA (Direction No. 90). Direction No. 90 is binding on decision-makers, including this Tribunal, in performing its functions, or exercising powers under section 501 of the Act.

   DOES THE APPLICANT PASS THE CHARACTER TEST?

9. There is no evidence before the Tribunal to indicate that the Applicant has been convicted of any offences, either in Australia or in any other country. The events which gave rise to the delegate’s finding are described in the delegate’s decision (and various submissions before the Tribunal). The following is a summary of these events.

   Events in India

10. The delegate refers to the court documents relevant to the trial of the applicant’s father. It is stated that the applicant returned to India in 2014 and in February 2014 the applicant was driving a motor vehicle and diverted his vehicle in an intimidating manner towards another person, Kulbir Singh. Kulbir Singh and his relatives visited the home of the applicant’s father and it is stated that the applicant and his father became verbally aggressive toward the other group. It is stated that the applicant, his father and others armed themselves with weapons. The applicant’s father had a rifle which he fired toward the other group, hitting several members of the group. It is stated that the applicant took the rifle from his father and fired it at the victim Jupreet Singh, who died of his injuries on the way to hospital. The applicant and his father are said to have fled with their weapons.

11. It is stated that the applicant’s father was arrested in March 2014 and claimed that the allegations were politically motivated. He stated that members of the other group began hitting his wife and in order to protect her, he fired a shot in the air and others took his rifle. The applicant’s father denied that the applicant was present at the incident.

12. The applicant offered a different account of what had occurred in his evidence to the delegate and the Tribunal. The applicant states that he returned to India to attend a cousin’s wedding and to visit his daughters. The applicant stated that his father held a position as the head of the village and had been subjected to political persecution. The applicant claims that when he and his wife were driving to visit his parents in law, he received a call from his mother who told him that the family home had been attacked and that a group of people were looking for the applicant and planned to kill him and she warned him to stay away, which he did.

13. The applicant presented a number of statements confirming his presence in another village during the incident. There is also before the Tribunal a recent statement from the applicant’s spouse who confirmed the applicant’s version of events that occurred in 2014.  The applicant notes that he was never charged or questioned by the police and was not aware of any investigation in relation to him. The applicant claims there was a misunderstanding in the communications between the Department and the Indian authorities and he provided his Australian and Indian penal certificates showing no adverse outcomes. Information on the Department’s file suggests that the Indian police certificate maybe inaccurate.

14. The applicant presented with his evidence to the delegate several country information reports, media reports and other materials which refer to politically motivated charges and false First Information Reports (FIRs) being filed in India and an enquiry into the practice of filing false FIRs for political reasons.

    Evidence relating to the applicant’s past conduct

15. The delegate notes that the applicant’s father was found guilty of committing the offence of murder and was given a life sentence. He has appealed the conviction and the delegate notes that in June 2022 the appeal was ongoing. The Tribunal has been provided with the court documents relating to the trial and conviction of the applicant’s father and in relation to his appeal.

16. The delegate refers to a file note pertaining to a conversation between an officer of the Immigration Department and a senior police officer in India in June 2015. It is stated that the Head Constable at a police station advised the officer that the applicant had been charged with offences under the Indian Penal Code and would be declared a ‘proclaimed offender’ if he did not return to India. The record suggests that a warrant has been issued for the applicant’s arrest in India.

17. The applicant denies the accuracy of that record. He claims that there is no information on where that case note comes from, it has not been followed up, there is no formal record of charges or convictions and little to indicate that at present, he continues to be of interest to the authorities in India. The applicant states that the note does not indicate that the investigation is ongoing and cannot form the basis of a finding that the applicant had committed murder in India. The Minister submits that the record of the conversation can be taken as accurate and while the Tribunal accepts that the record of the conversation may be accurate, it is the accuracy of the information that is supplied in that conversation that is in question.

18. The Minister also relies on the FIR that has been prepared in India in relation to the above events. The applicant provided to the delegate evidence from his lawyer in India indicating that an FIR is not evidence that an offence has been committed. The advice indicates that no charges had been laid against the applicant because he is outside of India. The delegate states in the primary decision that subsequent information indicates that the applicant had been declared a proclaimed offender and notes that there is a warrant for his arrest. The applicant submitted that this information is erroneous or incorrectly interpreted. The Tribunal acknowledges that the existence of the FIR is not evidence that the offence had been committed in the same way as the absence of formal charges (in the circumstances where the applicant has not returned to India and cannot be charged while overseas) is not evidence that the applicant is no longer of interests to the authorities in India.

    Other evidence pertaining to future risk

19. The applicant presented a number of ‘alibi witness’ statements. Those who provided statements refer to the applicant being present elsewhere when the events described above took place. A number of witnesses gave oral evidence to the Tribunal also confirming that the applicant was at a different place at the time the events in question were said to have occurred. The applicant invited the Tribunal to make a finding that he was not present when the above events took place while the Minister submits that the oral evidence of these witnesses are unreliable because they are related to the applicant.

20. The Tribunal does not consider that relationship with the applicant would automatically render the witnesses unreliable and their evidence untruthful. The cross-examination of these witnesses did not reveal any specific concerns that would indicate their evidence is untruthful. The Tribunal is of the view that the evidence of the ‘alibi witnesses’, coupled with the country reports about the use of FIRs for political purposes, raises sufficient doubt about the applicant’s involvement in the events in question.

21. In his submission to the delegate the applicant also presented character references with the writers referring to the applicant was a person of good character and the allegations being ‘false’. These refer to the applicant’s strong work ethic and family values, his involvement in voluntary activities and community events.

22. The Tribunal has had regard to report the prepared by Mr Tim Watson-Munro, a forensic psychologist, in June 2018. Mr Watson-Munro describes the couple’s circumstances, stating that both the applicant and his partner suffer from depression and have been prescribed psychotropic medication. Mr Watson-Munro refers to the applicant’s reporting of political persecution in India and fear for his life. Mr Watson-Munro states that notwithstanding the allegations in relation to the applicant, he is of the view that the applicant presents no risk of offending in this country and no risk to the Australian community.

23. The applicant also presented a report prepared by Dr Susette Sowden, prepared in August 2018, who also reports the applicant experiencing stress due to his present situation. Relevantly, Dr Sowden states that, based on clinical interview with the applicant, there is no history of violent behaviour or violent ideation, either past or recent and his history suggests he has no historical factors relating to violence, other antisocial behaviour, relationships, employment, substance abuse, mental and personality disorders, traumatic experiences or violent attitudes. It is stated that the applicant has not been observed to have any clinical factors relating to violent ideation or intent, or affective, behavioural or cognitive instability. It is stated that his current living situation and personal support indicate he is not at risk of violence. Dr Sowden concludes that the applicant is considered to have a low risk of future violence, serious physical harm or imminent violence. Dr Sowden expressed the view that the applicant has a low risk of criminal offending in the future and that there is a very low probability that he presents a risk to the Australian community. In a further report dated May 2021 Dr Sowden refers to an ‘extremely low risk’ of the applicant engaging in criminal conduct in Australia. There are other medical records in relation to the applicant and his partner that are before the Tribunal.

    Assessment of risk

24. The Minister refers to the record of proceedings in India in to the applicant’s father and others. It refers to the applicant’s involvement in the events and the Minister invited the Tribunal to accept that record as a finding of fact. While the Tribunal is able to have regard to the evidence and findings made in relation to the applicant’s father, in this case, the Tribunal does not consider that such findings offer a probative basis for a finding that the applicant himself had engaged in the conduct alleged. This is because the applicant has not had the opportunity to present his evidence in a trial, his evidence, and that of his ‘alibi witnesses’ has not been tested in a court of law. The Tribunal is mindful that others who were said to have been involved in the incident had been acquitted, so the fact that they had been alleged to have taken part in the incident cannot be taken as proof that the events occurred as they had been described in the court document. As noted above, the Tribunal is of the view that there is sufficient doubt about the applicant’s involvement in the events in question, given the number of witnesses who had given evidence that he was elsewhere.

25. The Minister submits that the applicant is a ‘fugitive from the law’ and that he could not be charged with an offence while outside of India (implying perhaps that he would have been charged if he returned from India). However, the Tribunal acknowledges the applicant’s submission that there have been no attempts to extradite him, there are no alerts or ‘red notices’ and the applicant has been permitted to live in the Australian community (nothing that there is a power to cancel his bridging visa under section 116(1)(e) of the Act if he was considered to be a risk to others.  In these circumstances, it may not be entirely accurate to state that the applicant is a fugitive from the law but even if that was the case, that does nothing to assist the Tribunal in determining the risk of the applicant engaging in criminal conduct in the future.

26. The Minister submits that the risk of the applicant engaging in criminal conduct may be low but even if the risk is low or extremely low, given the seriousness of the potential conduct, the risk is unacceptable. The Tribunal accepts that submission. However, the Tribunal has formed the view that there is insufficient evidence find that if the applicant was to remain in Australia, there is any risk that he would engage in criminal conduct in Australia.

27. In reaching this conclusion, the Tribunal has had regard to the following factors.

    (a)The applicant had not been convicted of the offences for the conduct in which he is alleged to have engaged. That is, an investigation of his alleged involvement in that conduct is yet to be completed and any final determination of his culpability is yet to be made. The applicant’s nomination as a ‘proclaimed offender’ was made on the basis of his alleged involvement and not as a result of a finding of guilt made by a court of law.

    The Tribunal acknowledges that the assessment of future risk, for the purpose of section 501(6)(d) of the Act need not be limited to consideration of convictions or other forms of determination of guilt. It may be possible, in some circumstances, to determine that there is a risk of future engagement in criminal conduct on the basis of past conduct even if no conviction has been recorded. But in the Tribunal’s view, that assessment must be based on something that is more than mere allegations, speculation or conjecture. In this case, evidence before the Tribunal indicates that there has been no assessment of the circumstances leading to the death of another person in relation to the applicant (and his father’s conviction does not necessarily implicate the applicant, noting in particular that other members of the applicant’s family had been acquitted) and there is no determination the applicant had been involved in the alleged conduct.

    (b)The alleged incident involved very specific circumstances. Either there was an incident of ‘road rage’ which escalated into an argument and use of weapons or, according to the applicant, it was a politically motivated attack on him and his family. This is not the case where the applicant is alleged to have engaged in criminal or violent conduct in the normal course of his daily life. There is no pattern of behaviour, there is no demonstrated disregard for the law, there is no suggestion of engagement in any other criminal activities. The incident, whatever occurred on the day in question and whatever the applicant’s involvement, appears to have been an out of the ordinary event. It is highly unlikely, in the Tribunal’s view, that similar circumstances would arise in Australia, causing the same reaction from the applicant. Notably, there is no suggestion that the applicant had otherwise engaged in any conduct that involved violence, anti-social behaviour or that could constitute criminal conduct.

    Paragraph 8.1.2(1) of Direction 90 refers to the risk to the Australian community ‘if the [conduct] is to be repeated’. In the Tribunal’s view, the likelihood or even a possibility of the same conduct being repeated in Australia is so low as to be non-existent. The Minister submits that the Direction refers to any criminal conduct being repeated, rather than the same conduct that occurred in the past and in this case, the Minister submits, an assessment must be made of the applicant engaging in any criminal conduct, including violent conduct. However, as noted above, the only conduct that can indicate any level of risk is the applicant’s alleged involvement in the above incident, there is no other conduct that would suggest there was any risk of the applicant engaging in criminal conduct in the future.

    (c)There is no pattern of behaviour, no evidence of repeated misconduct and no established propensity to offend that can contribute to a finding on which future conduct can be ascertained. There is an allegation in relation to a single incident, which has not been proven, and there is, in the Tribunal’s view, sufficient doubt raised about the applicant’s participation in the events described above, given the evidence of the various witnesses.

    (d)The applicant has been living in Australia since 2007, for about 15 years. There is nothing to indicate that he had engaged in criminal conduct in Australia or that he had otherwise breached the law or had shown any disregard for the law. The applicant’s past conduct in Australia over a lengthy period of time offers a reasonable basis for a conclusion that there is no risk that applicant will engage in criminal conduct in Australia.

    (e)The evidence on which the primary decision was based deals with the applicant’s past conduct and the 2014 incident in India. However, it is not sufficient to find that the person has engaged in conduct specified in section 501(6)(d) of the Act in the past. Direction 90 makes it clear that there must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act. The nature of the criminal conduct in which it is thought the applicant would engage in in the future is not clear and has not been expressly specified or addressed. 

    (f)The Tribunal places some weight on the assessments by Dr Sowden (low risk or extremely low risk) and Mr Watson-Munro (no risk).

1. In the Tribunal’s view, it would be illogical or unreasonable to conclude that there is a risk of the applicant engaging in criminal conduct in Australia if he was to remain in Australia on the basis of unproven events occurring in India, in circumstances where doubt has been raised about the applicant’s involvement in these events, and in light of his ‘clean’ record in Australia over a lengthy period of time. In Nafady v MICMSMA [2022] FCA 1434 at [53] Logan J stated that ‘satisfaction as to the absence of the legislatively ordained risk must proceed from facts established to reasonable satisfaction on the material before the Minister and by reference to the representation and any other submission made by the citizen’. In the Tribunal’s view, the facts relation to the event in India have not been established to a reasonable satisfaction.

2. The Tribunal cannot make a positive finding that the applicant was involved in the 2014 incident in India. He has not engaged in any other criminal conduct. He has not demonstrated propensity to engage in criminal conduct or violent conduct. He has not committed any offences over a period of his long residence in Australia. In all the circumstances, the Tribunal has formed the view that the risk of the applicant engaging in criminal conduct in Australia is non-existent.

3. There is no other basis to suggest that the applicant does not pass the character test. Having considered all the circumstances, the Tribunal has formed the view that the applicant passes the character test. The discretion to refuse to grant him the visa does not arise.

   DECISION

   The decision under review is set aside and remitted to the Department with a direction that the visa not be refused under section501(1) of the Act.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Raif

................................[SGD]........................................

Associate

Dated: 22 December 2022

Date(s) of hearing:	20 December 2022
Counsel for the Applicant:	Mr Nicholas Poynder
Solicitor for the Respondent:	Mr Liam Dennis, Minter Ellison