Singh (Migration) - [2022] AATA 2165

Singh (Migration) [2022] AATA 2165 (18 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Kamaljeet Singh
CASE NUMBER:  2105405
HOME AFFAIRS REFERENCE(S):          BCC2020/2802877
MEMBER:Brendan Darcy
DATE:18 May 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 18 May 2022 at 9:07am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – risk to the safety of the Australian community – applicant charged with multiple offences – no conviction currently recorded – guilty pleas – spent convictions – mental health issues – bridging visa granted after detention period – pathway towards permanent residency – separation from his wife – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 48, 116, 140, 198, 359
Migration Regulations 1994
Misuse of Drugs Act 1981 (WA)
Spent Convictions Act 1988 (WA)
Transport (Road Passenger Services) Act 2018 (WA)
CASES
Gong v MIBP [2016] FCCA 561
HZCP v MIBP [2018] FCA 1803
MIMA v SRT (1999) 91 FCR 234
Tien v MIMA (1998) 89 FCR 80
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 21 April 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa under s 116(1)(e)(i) on the basis that they were satisfied the presence of the applicant in Australia is or may be, or would or might be, a risk to the safety or good order of the Australian community or a segment of the Australian community. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
Via a teleconference facility, the applicant appeared before the Tribunal on 17 January 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother, Virenderjeet Singh Buttar. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. At the time of the scheduled hearing, the applicant was detained in the immigration detention centre at Yongah Hill in the State of Western Australia.
Via an internet-enabled audio-visual platform, the applicant appeared before the Tribunal on 11 March 2022 to give evidence and present arguments at a resumed hearing. The Tribunal also received oral evidence from the same abovementioned brother of the applicant and the applicant’s spouse, Sukhpreet Kaur. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. At the time of the scheduled hearing, the applicant was holding a bridging visa and was residing in the community with his spouse.
The applicant was not represented by a registered migration agent or legal practitioner in this matter.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa…

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 2165
Case: [2022] AATA 2165
Decision Date: 18 May 2022

CaseChat Overview and Summary

This case concerned the cancellation of a Student (Temporary) (Class TU) visa, subclass 500, held by the applicant, Mr Singh. The Minister, through a delegate, cancelled the visa under s 116(1)(e)(i) of the Migration Act 1958 (Cth) on the grounds that the applicant posed a risk to the safety of the Australian community. The applicant sought review of this decision by the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether the grounds for cancellation were made out, and if so, whether the visa should be cancelled, considering all relevant circumstances. Specifically, the Tribunal had to determine if the applicant’s alleged conduct, including charges for unlawful and indecent assault, fraud, and offences related to the sale or supply of cannabis, demonstrated a disregard for Australian laws and values, and posed a risk to a segment of the community. The Tribunal also considered the impact of spent convictions and mental health issues, as well as the applicant's stated desire to pursue permanent residency and establish a business in Australia with his wife, who was the primary visa holder.

The Tribunal reasoned that while the applicant had pleaded guilty to unlawful assault and was fined, this conviction was eligible to be spent under Western Australian law. Charges for deprivation of liberty were dismissed. The Tribunal also noted that a National Crime Check report predated the alleged offending and showed no disclosable court outcomes. The Tribunal acknowledged the applicant's stated intention to remain in Australia with his wife, who was undertaking studies, and their desire to establish a family business. However, the Tribunal also had regard to the serious nature of the allegations and the potential risk posed by the applicant's conduct.

Ultimately, the Tribunal affirmed the delegate's decision to cancel the applicant's visa. The Tribunal found that the grounds for cancellation were made out, and that in the exercise of its discretion, cancellation was the appropriate outcome, notwithstanding the applicant's personal circumstances and his wife's ongoing studies.

Orders

Orders of the court

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Background

Background to the litigation

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 grounds 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.Background The applicant was born on 13 April 1992 in the Republic of India. The applicant’s married spouse, Sukhpreet Kaur, and the applicant were granted a Class TU Subclass 500 student visa on 24 October 2019, which was set to expire on 17 November 2021. The applicant was the secondary visa holder to his wife’s student visa in relation to which she was enrolled in full time study with an education provider in Western Australia. There is no evidence the applicant has any children or other dependants. The applicant had been issued with a Notice of Intention to Consider Cancellation (NOICC) letter on 23 February 2021 by an official of the Department of Home Affairs (the Department). The decision record was attached to the review application. On 23 March 2021, the visa holder’s then legal practitioner responded on the visa holder’s behalf and a series of three emails followed on 29 March 2021. A delegate acting on behalf of the Minister cancelled the applicant’s student visa on 21 April 2021. The applicant applied to have the delegate’s cancellation decision reviewed on 27 April 2021. Particulars of the ground for cancellation The NOICC issued on 23 February 2021 outlined that:· On 3 December 2020, the Western Australian Police (WAPOL) charged the applicant with unlawful and indecent assault. · The applicant was released on bail and this matter remained pending before the Armadale Magistrates’ Court on 10 June 2021. · The Western Australian Department of Transport (DoT) was investigating the applicant in relation to a large number of alleged offences committed during the period 22-26 December 2020 pursuant to the Transport (Road Passenger Services) Act 2018 (WA) and its subordinate legislation, while the applicant was engaged as a Taxi Driver for Swan Taxis.· The WA DoT had suspended the applicant’s Passenger Transport Driver’s Authorisation as the applicant may have committed a ‘disqualification offence’.· Cumulatively, the above shows a disregard for Australian laws and values.· The circumstances of the applicant’s alleged criminal conduct show the applicant poses a risk to a particular segment of the community, namely women.· The applicant had used his position as a Passenger Transport Driver to fraudulently demand money to which he was not entitled. The applicant allegedly consumed alcohol and drugs while conducting a ride sharing service, adding to the likelihood of being impaired whilst driving. These matters further put the general community at risk. The NOICC detailed the criminal allegations that led to the charges being laid against the applicant. It states, in full: It is alleged: · On Thursday 5 November 2020, the visa holder was driving a white Mazda vehicle registration 1GBP672, whilst conducting ride share services under the transport application “Didi”. · He collected a female passenger from her home in Brookdale and drove her to the Thirsty Camel bottle shop in Armadale, WA. The alleged female victim had already prepaid her fare for the ride, via the online application on her mobile phone. · The victim exited the vehicle to purchase some alcoholic drinks, then returned to sit in the rear passenger seat of the vehicle. · During the return journey back to her home address, the visa holder stopped the vehicle and demanded her to pay an additional $20 into your personal bank account, for wasting his time whilst she was in the bottle shop. · The victim agreed and she put the visa holder’s personal bank details into her phone. She subsequently completed the monetary transfer of funds. · After resuming the journey back to the victim’s house, the visa holder stopped the vehicle once again and demanded the victim get in the front seat of the vehicle. After she complied, he locked the vehicle, then took one of her alcoholic drinks and consumed it. · The visa holder spoke to the victim, telling her “You are beautiful. I am in love with you”. · He slowly ran his hand down the victim’s arm, making her uncomfortable. He then ran his hand over some scarring on the victim’s right leg, after which he attempted to slide his hand between her thighs. The victim did not consent to this behaviour. · The victim kept her legs crossed and demanded the visa holder take her home, which he did.

Evidence

Evidence Before The Court

Based on the information above, the delegate proceeded to consider the visa holder may pose a risk to the health and safety of the Australian community or a segment of the Australian community and that the then visa holder’s visa was therefore liable for cancellation under s 116(1)(e)(i) of the Act.Evidence at merits review The applicant applied to have the delegate’s decision reviewed by the Tribunal on 27 April 2021. The decision record was attached to the application. On 2 November 2021, the Tribunal received a range of submissions from the applicant, including a number of already submitted reference letters and the letter from his criminal lawyer. Of particular note in relation to the grounds for cancellation was the prosecution notice issued by the Magistrates’ Court of Western Australia. It states that the applicant had been charged with unlawfully assaulting a person on 5 November 2020 in Brookdale in Western Australia and that on 10 June 2021, the applicant pleaded guilty. The applicant was required to pay a fine to the victim of 800 Australian dollars and other costs amounting to 130.50 Australian dollars. It further indicates the conviction is eligible to be spent.[1] The prosecution notice also indicates that the applicant was issued bail on 29 December 2020 (with the condition that he was not to contact or attempt to contact ‘the protected person’ or to enter or remain upon any premises where the protected person lives or works). It further indicates that the applicant’s bail was renewed on 19 January 2021.[1] According to the Western Australian Police Force website: ‘What convictions are eligible to be spent? “The WA Police Force can only spend a lesser conviction heard in a WA Court. A lesser conviction is one for which a fine of $15,000 or less or a term of imprisonment of 12 months or less was imposed (this includes suspended imprisonment sentences). The Spent Convictions Act 1988 states that a Western Australian conviction is not eligible to be spent until the prescribed period has expired. The prescribed period commences to run from the date of the most recent conviction in this or any other state or territory that resulted in a fine of over $500 or any type of penalty such as a court order or imprisonment. Also of particular note was a letter dated 26 October 2021 from the applicant’s criminal lawyer. It indicated that a ‘deprivation of liberty’ charge was listed for committal and that a court date had been set for 8 December 2021. It also states that the applicant instructed his counsel to plead guilty to two offences to offer to sell or supply cannabis and an offence of committing fraud. Curiously, the applicant also provided a National Crime Check report from the Australian Criminal intelligence Commission. It indicates there were no disclosable court outcomes against the applicant’s name. The document is dated 15 September 2020, which predates the alleged offending leading to convictions as outlined above.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’. There was also evidence about a charge of deprivation of liberty. This charge was later dismissed for want of prosecution on 2 February 2022, as evidenced by recent submissions from the applicant’s criminal lawyer. The Tribunal accordingly places no weight on this matter when considering the circumstances in which the ground for cancellation arose or any other aspect of these below mentioned considerations. Similarly, given the informant’s retraction of the adverse information put to the applicant under s 359AA, the Tribunal is compelled not to place any weight on this information either in favour or against this visa remaining cancelled. The purpose of the visa holder’s travel and stay in Australia; whether the visa holder has a compelling need to travel to or remain in Australia At the scheduled hearing, the applicant outlined to the Tribunal that he had visited Australia on a visitor visa with his wife to visit his brother, Virenderjeet Singh Buttar, in the middle of 2019, and they subsequently applied for a student visa based on the advice of his brother. The primary applicant for the student visa application was the applicant’s wife, while the applicant was the secondary visa holder. Granted on 24 October 2019, the visas were set to expire on 17 November 2021. The purpose of this student visa was for the applicant’s spouse to enrol in and undertake full time studies in cookery and hospitality with an education provider in the State of Western Australia. The Tribunal has received a copy of a Diploma of Hospitality Management in cookery from the Empyrean Education Institute dated 17 September 2021. The applicant stated he worked while his wife undertook the enrolled studies as a visa holder. Having completed her studies, the applicant further explained that his spouse hopes to remain in Australia as a holder a temporary residence or graduate visa. The applicant went on to say that he wanted to become a permanent resident in Australia and later a citizen of Australia, as they planned to own their own business in Australia. When the Tribunal enquired what kind of business, the applicant vaguely responded ‘a family business’. Pressing the applicant for more details, he said a petrol station or a store of any kind. The Tribunal enquired into the reasons the applicant’s spouse had not attended the first hearing. The applicant said his wife was aware of the hearing and was not feeling well but could join the hearing if required. At the end of a lengthy hearing, the Tribunal requested the applicant’s spouse to provide an updated statement. On 9 February 2022, a signed statement from the applicant’s spouse was received by the Tribunal. Dated 5 February 2022, the statement states the applicant and his wife married in February 2019, and that she remains in a committed married relationship with the applicant and that she is now undertaking an advanced diploma in commercial cookery. It further states the couple want to start living a normal life, and want her to finish her studies and gain work experience in Australia.