Singh (Migration) - [2024] AATA 3099

Singh (Migration) [2024] AATA 3099 (23 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Gursimran Singh
REPRESENTATIVE:  Mr Ejaz Khan
CASE NUMBER:  2402920
HOME AFFAIRS REFERENCE(S):          BCC2022/4682328
MEMBER:Kate Millar
DATE:23 July 2024
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.

I, Deputy President K Millar certify this is the
Tribunal's statement of decision and reasons.
Statement made on 23 July 2024 at 9:32am
CATCHWORDS
MIGRATION – cancellation – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – ground for cancellation – convicted of an offence – stalk/intimidate – common assault – contravening an apprehended violence order (AVO) – consideration of discretion – compelling need to remain in Australia – degree of hardship – circumstances giving rise to cancellation – mental health issues – psychotic depression – best interests of the child – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43
CASES
CFE16 v Minister and CFD16 v Minister [2020] FCCA 1083
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

Mr Singh held a Partner (Provisional) visa until it was cancelled by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs on 13 February 2024. Mr Singh’s visa was cancelled because he was convicted of a number of offences including stalking or intimidation with intent to cause fear or physical or mental harm, common assault and contravening an apprehended violence order (‘AVO’).
Mr Singh has applied for a review of this decision, arguing that his visa should not be cancelled because at the time of the offences he was acutely mentally ill and is now receiving treatment, and because he has a child who is an Australian citizen.
Mr Singh appeared before the Tribunal on 22 April 2024 to give evidence and present arguments. He was represented in relation to the review. The Tribunal also received oral evidence from his sister, Ms Pushpinder Kaur. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
This is an application for review of a decision dated 13 February 2024 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
Under s 116 of the Act, the Minister may cancel a visa if satisfied that certain grounds specified in that provision are made out. If satisfied that a 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. The issue in this case is whether a ground for cancellation is made out, and if so, whether Mr Singh’s visa should be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Singh (Migration)

Details

AGLC: Singh (Migration) [2024] AATA 3099
Case: [2024] AATA 3099
Decision Date: 23 July 2024

CaseChat Overview and Summary

This matter concerned an application for review of a decision by the Minister for Home Affairs to cancel Mr Singh's Subclass 309 Partner (Provisional) visa. The cancellation was based on Mr Singh's conviction for multiple offences under New South Wales law, including stalking and intimidation with intent to cause fear of physical harm, common assault, and contravening an apprehended violence order. The Tribunal was required to determine whether a ground for cancellation existed and, if so, whether the visa should be cancelled.

The primary legal issue was whether Mr Singh's convictions constituted a prescribed ground for visa cancellation under section 116(1)(g) of the *Migration Act 1958* (Cth) and regulation 2.43(oa) of the *Migration Regulations 1994* (Cth). If a ground for cancellation was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal found that Mr Singh's convictions for offences against New South Wales law did establish a ground for cancellation under section 116(1)(g). As this ground did not mandate automatic cancellation, the Tribunal proceeded to consider the exercise of discretion. The Tribunal noted that while Mr Singh was receiving treatment for mental health issues, he had not demonstrated an understanding of his past behaviour or a reduced risk of reoffending. The nature of the offences, which involved women and children and a breach of an apprehended violence order, coupled with the ongoing risk of reoffending, were considered to outweigh other factors, such as his potential support network if he were to leave Australia. Consequently, the Tribunal affirmed the decision to cancel Mr Singh's visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE This is an application for review of a decision dated 13 February 2024 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa under s 116 of the Migration Act 1958 (Cth) (the Act). Under s 116 of the Act, the Minister may cancel a visa if satisfied that certain grounds specified in that provision are made out. If satisfied that a 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. The issue in this case is whether a ground for cancellation is made out, and if so, whether Mr Singh’s visa should be cancelled.Does the ground for cancellation exist? A visa may be cancelled under s 116(1)(g) of the Act if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in reg 2.43 of the Migration Regulations 1994 (the Regulations). As it applies to Mr Singh reg 2.43(oa) prescribes a ground for cancellation where a visa holder has been convicted of an offence against a law of the Commonwealth, State or Territory, regardless of the penalty imposed. On 10 October 2023, Mr Singh was convicted of 3 counts of stalk/intimidate with the intention to cause fear of physical harm, 3 counts of common assault and one count of contriving a prohibition or restriction in an AVO. Mr Singh was sentenced to a Community Correction Order for a period of 2 years for stalking/intimidation and assault. No further penalty was imposed for the breach of the AVO. As Mr Singh has been convicted of offences against a law of New South Wales, the ground for cancellation in s 116(1)(g) exists. As this ground does not require mandatory cancellation under s 116(3), the Tribunal must consider whether the visa should be cancelled.Consideration of discretion There are no matters specified in the Act or Regulations that must be considered in deciding if a visa should be cancelled where a ground for cancellation has been established. The Tribunal has had regard to the circumstances of this case, including matters raised by Mr Singh, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.The circumstances of the offending The offences are described in a statement of agreed facts prepared by the Office of the Director of Public Prosecutions in New South Wales and were provided by Mr Singh. The first assault arose on 26 October 2022 from Mr Singh approaching 2 women who were walking, one of whom was with her 4-month-old son. Mr Singh asked one of the women where he could buy beer and shook her hand, using this to pull her towards him. He followed the women and when they stopped he asked one of them to come with him and have a good time. He grabbed one of the women’s arms above the elbow and yelled after them “I love you”, winking and blowing kisses. The women called police who met them after they had finished their walk.

Decision

Reasons for decision

If Mr Singh leaves Australia, he has the support of his parents and will have shelter and accommodation. He may seek farm work on his return. Mr Singh was convicted of offences involving women and children in the community. He has breached the terms of an AVO. While Mr Singh is receiving treatment for a mental illness, he was unable to identify the problems with his behaviour in the past and the risk remains that he will repeat the behaviour in the future. This is risk and his prior convictions outweigh the other factors in favour of not cancelling his visa, and I consider his visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.Kate MillarDeputy President

Ratio Decidendi

Legal Principle Established

As Mr Singh has been convicted of offences against a law of New South Wales, the ground for cancellation in s 116(1)(g) exists. As this ground does not require mandatory cancellation under s 116(3), the Tribunal must consider whether the visa should be cancelled.Consideration of discretion There are no matters specified in the Act or Regulations that must be considered in deciding if a visa should be cancelled where a ground for cancellation has been established. The Tribunal has had regard to the circumstances of this case, including matters raised by Mr Singh, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.The circumstances of the offending The offences are described in a statement of agreed facts prepared by the Office of the Director of Public Prosecutions in New South Wales and were provided by Mr Singh. The first assault arose on 26 October 2022 from Mr Singh approaching 2 women who were walking, one of whom was with her 4-month-old son. Mr Singh asked one of the women where he could buy beer and shook her hand, using this to pull her towards him. He followed the women and when they stopped he asked one of them to come with him and have a good time. He grabbed one of the women’s arms above the elbow and yelled after them “I love you”, winking and blowing kisses. The women called police who met them after they had finished their walk. The second assault was on the same day against a woman playing with her dog at the park. He approached the woman, touched her upper back and asked to pat her dog. He asked her to go and have a drink with him. She tried to leave, and he hugged her and kissed her on the cheek. After about 5 seconds she managed to push him off. She walked away but noticed him following her and called her father because she felt unsafe. The third offence is intimidation and occurred on the same day. The victim went to collect her children from childcare, but as one was asleep decided to go to the shops instead so her child could sleep. She was approached by Mr Singh outside the childcare centre and asked questions about her name and whether this was a school for little children. He followed her to her car and then followed her in his car for some time. The victim parked and rang her husband. She reported the incident to the police that night. The next offence was common assault and intimidation, with the assault attached to the intimidation on a Form 1. On the same day Mr Singh approached another victim who was in the park with her 5-month-old old son and 2-year-old daughter. Mr Singh approached, looked into the pram and stroked the baby’s leg. The victim took the baby out of the pram and put him into a carrier. Mr Singh asked if she was going to breastfeed her child and said she should breastfeed her child ‘now in the park’. He walked off and sat in his car nearby for a few minutes before driving off. Police arrived shortly after to obtain a statement. The same day, in another offence of common assault and intimidation, the victim went to collect her nephew from a childcare centre. As she was strapping her nephew into his car seat, Mr Singh approached and used one finger to touch the child’s cheek. He remained nearby smiling and saying words such as “lovely”. He approached to shake the victim’s hand, but she gestured no and put some items in the passenger seat then got into the driver’s seat. When she looked up, she saw Mr Singh was on the footpath directly in front of the entrance to the childcare centre, then noticed him getting into his car as she pulled out. The childcare centre was notified of the incident, and it was reported to police the following day.