Singh (Migration) - [2022] AATA 3135

Singh (Migration) [2022] AATA 3135 (29 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Navreet Singh
REPRESENTATIVE:  Mr Suraj Khatri, Zen Migration and Education
CASE NUMBER:  2118019
HOME AFFAIRS REFERENCE(S):          BCC2021/1219859
MEMBER:Michael Ison
DATE:29 July 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 020 (Bridging B) visa.

Statement made on 29 July 2022 at 3:41pm
CATCHWORDS
MIGRATION – cancellation – Bridging B (Class WB) visa – Subclass 020 (Bridging B) visa – risk to the health and safety of the Australian community – applicant charged with multiple criminal offences – applicant’s criminal charges reduced – impact of the COVID-19 pandemic and lockdowns – judgment of lower level of offending – applicant remanded in custody prior to bail – family and community support – emotional hardship in immigration detention – decision under review set aside
LEGISLATION
Bail Act 1977 (Vic)
Migration Act 1958, ss 48, 116, 140, 198, 359, 501
Migration Regulations 1994, Schedule 4, Public Interest Criterion 4013; Schedule 8
CASES
Gong v MIBP [2016] FCCA 561
STATEMENT OF DECISION AND REASONS
application for review

This is an application for review of a decision dated 26 November 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 020 (Bridging B) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant in this review is Mr Navreet Singh, who is a 24-year-old Indian national. Mr Singh is referred to as the applicant in these reasons for decision. The Tribunal discussed the applicant’s immigration history in Australia with the applicant, which may be summarised as follows.
The applicant first arrived in Australia on 17 November 2015 as a dependent of his mother, Ms Sukhdeep Kaur, who held a Temporary Work (Skilled) (Class UF) (Subclass 457) visa that was valid to 21 October 2019.
On 1 May 2018 the applicant (and other family members) was included in a Regional Sponsored Migration Scheme (Class RN) (Subclass 187) visa application as a member of the family unit of his mother Ms Kaur and on 11 September 2019 those visa applications were refused by a delegate of the Minister.
On 24 September 2019 the applicant and his family lodged applications for review of the decision to refuse their Subclass 187 visa applications with the Tribunal (Tribunal case no. 1926875). At the time of this decision, those review applications have not been decided by the Tribunal.
On 21 August 2018 the applicant was granted a Bridging A (Subclass 010) visa which was associated with his pending Subclass 187 visa application. The applicant’s Bridging A visa ceased on 11 October 2019 when he was granted a Bridging B (Subclass 020) visa to enable the applicant to travel overseas.
The applicant was charged with criminal offences on 23 April 2021, 25 May 2021 and 28 May 2021 leading to the applicant being remanded in custody on 29…

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) [2022] AATA 3135
Case: [2022] AATA 3135
Decision Date: 29 July 2022

CaseChat Overview and Summary

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to cancel the applicant's Subclass 020 (Bridging B) visa under s 116 of the Migration Act 1958 (Cth). The applicant, Mr Navreet Singh, a 24-year-old Indian national, had arrived in Australia in 2015 and held various bridging visas since 2018. His Bridging B visa was cancelled on 26 November 2021, following his being charged with multiple criminal offences and remanded in custody. The review was heard by the Tribunal.

The primary legal issue before the Tribunal was whether the ground for cancellation under s 116(1)(e)(i) of the Act, namely that the applicant's presence in Australia posed a risk to the health, safety, or good order of the Australian community, was made out. If this ground was established, the Tribunal was then required to consider whether, in the exercise of its discretion, the applicant's visa should be cancelled, having regard to all relevant circumstances. The applicant had elected to rely on his privilege against self-incrimination in relation to the unresolved criminal charges, meaning the Tribunal could not make adverse findings or inferences based on those matters.

The Tribunal found that the ground for cancellation under s 116(1)(e)(i) was established, noting the serious nature of the criminal charges. However, in considering the exercise of discretion, the Tribunal took into account various factors, including the applicant's long-standing presence in Australia since 2015, his desire to remain with his family who also resided in Australia and had pending visa applications, and the impact of the COVID-19 pandemic and lockdowns on his circumstances. The Tribunal also considered the applicant's emotional hardship in immigration detention. Despite the existence of the ground for cancellation, the Tribunal concluded that the discretionary considerations weighed against the cancellation of the applicant's visa.

Consequently, the Tribunal set aside the delegate's decision to cancel the applicant's Bridging B visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This is an application for review of a decision dated 26 November 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 020 (Bridging B) visa under s 116 of the Migration Act 1958 (Cth) (the Act).Background The applicant in this review is Mr Navreet Singh, who is a 24-year-old Indian national. Mr Singh is referred to as the applicant in these reasons for decision. The Tribunal discussed the applicant’s immigration history in Australia with the applicant, which may be summarised as follows. The applicant first arrived in Australia on 17 November 2015 as a dependent of his mother, Ms Sukhdeep Kaur, who held a Temporary Work (Skilled) (Class UF) (Subclass 457) visa that was valid to 21 October 2019. On 1 May 2018 the applicant (and other family members) was included in a Regional Sponsored Migration Scheme (Class RN) (Subclass 187) visa application as a member of the family unit of his mother Ms Kaur and on 11 September 2019 those visa applications were refused by a delegate of the Minister. On 24 September 2019 the applicant and his family lodged applications for review of the decision to refuse their Subclass 187 visa applications with the Tribunal (Tribunal case no. 1926875). At the time of this decision, those review applications have not been decided by the Tribunal. On 21 August 2018 the applicant was granted a Bridging A (Subclass 010) visa which was associated with his pending Subclass 187 visa application. The applicant’s Bridging A visa ceased on 11 October 2019 when he was granted a Bridging B (Subclass 020) visa to enable the applicant to travel overseas. The applicant was charged with criminal offences on 23 April 2021, 25 May 2021 and 28 May 2021 leading to the applicant being remanded in custody on 29 May 2021. On 26 November 2021 the applicant’s Bridging B visa was cancelled under s 116(1)(e)(i) of the Act. It is the cancellation of the applicant’s Bridging B visa that is the subject of this review. On 8 December 2021 the applicant was granted a Bridging E (Subclass 050) visa while he was remanded in custody, which was stated to be valid to 8 December 2022. On 29 March 2022 the applicant was granted bail by the County Court of Victoria, but for reasons the applicant is not aware his Bridging E visa had ceased or was cancelled and the applicant was immediately detained upon his release from prison and held in the Melbourne Immigration Transit Accommodation (MITA), an immigration detention centre. The applicant remains in MITA at the time of this decision. On 29 March 2022 the applicant applied for a Bridging E visa which was refused by a delegate of the Minister on 5 April 2022. The Applicant applied to the Tribunal to review the decision to refuse him a Bridging E visa (Tribunal case no. 2205178). On 22 April 2022 the Tribunal, differently constituted, affirmed the decision of the delegate to refuse the applicant’s application for a Bridging E visa. On 9 June 2022 the applicant made a fresh application for a Bridging E visa.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.consideration of Claims and evidence Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(e)(i). If satisfied that the 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.Does the ground for cancellation exist?Section 116(1)(e)(i) - risk to Australian community or a segment of the Australian community A visa may be cancelled under s 116(1)(e)(i) if the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community. There does not have to be, any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561, at [41]. The Tribunal asked the applicant whether the applicant agreed that there was a ground for the cancellation of the applicant’s visa. The applicant told the Tribunal that the applicant does not agree.Privilege against self-incrimination At the commencement of the hearing the Tribunal confirmed with the applicant that some of his criminal charges remained before the courts and he had not entered a plea in relation to some of those charges. The Tribunal informed the applicant this means he has a privilege against self-incrimination in relation to those charges and explained to the applicant the nature of that privilege, its operation and effect. The Tribunal also explained to the applicant the consequences for both his criminal law matters and his review before the Tribunal if the applicant chose to rely on the privilege or chose to waive the privilege, including that if he relied on the privilege the Tribunal would make no adverse findings and draw no adverse inferences against the applicant in relation to the matters covered by the privilege. The applicant indicated to the Tribunal he understood these explanations and wished to rely on his privilege against self-incrimination in relation to his unresolved criminal law matters. As a result, the Tribunal refrained from asking the applicant about the circumstances that led to him being charged with the various unresolved criminal charges.Information disclosed in accordance with the procedure set out in s 359AA of the Act The Department’s file included extensive documents from Victoria Police in relation to the applicant’s various criminal charges, the alleged circumstances supporting those charges, Victoria Police’s opposition to the applicant being granted bail and related matters. Most, but not all, of the information relevant to the applicant’s review disclosed in those documents was set out in the primary decision of a delegate of the Minister which the applicant provided to the Tribunal.

Decision

Reasons for decision

The applicant withdrew his application for a Bridging E visa on 4 July 2022 and at the time of this decision does not hold a visa. The primary decision The applicant provided the Tribunal with a copy of the primary decision. The delegate cancelled the visa under s 116(1)(e)(i) of the Act which provides:Section 116 Power to cancel(1) Subject to subsections (2) and (3)[1], the Minister may cancel a visa if he or she is satisfied that:…(e) the presence of its holder in Australia is or may be, or would or might be, a risk to:(i) the health, safety or good order of the Australian community or a segment of the Australian community; or(ii) the health or safety of an individual or individuals… . (emphasis in original)[1] These subsections are not relevant for present purposes. The delegate found that at the time of the delegate’s decision the applicant had been charged with 26 criminal offences arising from several separate incidents of alleged criminal offending including drug related charges, charges of dishonesty and deception and charges of personal violence. This caused the delegate to form the view that the applicant is or may be a risk to the health, safety or good order of the Australian community or a segment of the Australian community. The delegate when considering the discretionary considerations found that the discretionary considerations that weighed in support of the cancellation of the applicant’s visa outweighed the discretionary considerations that weighed against the cancellation of his visa and therefore cancelled the applicant’s Bridging B visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.Certificate issued by the delegate under section 375A of the Act On 6 June 2022 the Tribunal wrote to the applicant via his representative to inform the applicant that the Department file included a certificate issued under s 375A of the Act dated 7 December 2021. The Tribunal indicated in its letter to the applicant that it had formed a preliminary view that the certificate had been properly issued and bound the Tribunal. The Tribunal provided a copy of the certificate and summarised the material particulars of the information in the documents the certificate applied to. The Tribunal invited the applicant to comment on the certificate including, but not limited to, its validity. The applicant, through his representative, responded to the Tribunal’s invitation by electronic mail dated 22 June 2022 and expressed “no objection” to the documents covered by the certificate being withheld and did not provide any other comment on the certificate.Tribunal hearing 23 June 2022 The applicant appeared before the Tribunal on 23 June 2022 to give evidence and present arguments, in person. The applicant told the Tribunal his parents and sister could give evidence by telephone if required by the Tribunal. The applicant was represented in relation to the review by the applicant’s migration agent, Mr Suraj Khatri of Zen Migration and Education. Mr Khatri is referred to in these reasons as the applicant’s representative or the representative. The representative attended the Tribunal hearing.

Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e)(i) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to 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 the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedural Instruction, formerly part of the Department’s Procedures Advice Manual, titled ‘General visa cancellation powers’. The Tribunal has considered all of the applicant’s circumstances and uses the headings from the Department’s Procedural Instruction for convenience only.The purpose of the applicant’s travel to and stay in Australia, including whether the applicant has a compelling need to or remain in Australia The applicant arrived in Australia with his family as the holder of a secondary visa that was granted after his mother was granted a primary visa. The applicant wishes to remain in Australia where his family continue to reside. The applicant’s mother has applied for a Subclass 187 visa and the applicant, his father and sister are secondary applicants. Their visa applications were refused by a delegate of the Minister in September 2019 and they have applied to the Tribunal to review that refusal decision. Their applications for review in relation to the Subclass 187 visa applications have not been heard by the Tribunal yet, and so remain unresolved. The applicant has been in Australia since November 2015 and wishes to continue to live with his family in Australia to work and study. The Tribunal accepts that the reasons the applicant came to Australia, being to be with his family, complete his schooling and potentially undertake further study, are ongoing and that this aspect of this consideration weighs against the cancellation of the applicant’s visa. The Tribunal does not find that the applicant has a compelling reason to remain in Australia. The Tribunal acknowledges that a Subclass 187 visa provides its holder with permanent residency in Australia and that the applicant and his family believe they have made their lives here since 2015 and wish to remain in Australia long-term. It is uncertain at the time of this decision whether the applicant’s mother will be granted a primary Subclass 187 visa and the applicant will be granted a secondary visa and so there is considerable uncertainty about the future of the applicant’s family. The Tribunal finds that overall this consideration weighs in support of the cancellation of the applicant’s visa but in the applicant’s circumstances the Tribunal gives this consideration only modest weight.The extent of the applicant’s compliance with their visa conditions The applicant has held several visas: a Subclass 457 visa, a Bridging A (Subclass 010) visa, a Bridging B (Subclass 020) visa and a Bridging E (Subclass 050) visa. At the time of this decision the applicant does not hold a visa and has been detained in immigration detention as an unlawful non-citizen due to the cancellation of his Bridging B visa.