Singh (Migration) - [2021] AATA 5017

Singh (Migration) [2021] AATA 5017 (25 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Gurwinder Singh
CASE NUMBER:  2109258
HOME AFFAIRS REFERENCE(S):          BCC2021/1025131
MEMBER:Michael Ison
DATE:25 October 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 25 October 2021 at 10:07am
CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – granted in conjunction with application for extension of wife’s graduate visa – criminal charges and bail with conditions – risk to health, safety or good order of segment of community – application for Bridging E visa in progress – immigration detention – pleas of not guilty, privilege against self-incrimination and presumption of innocence – “may be a risk” – discretion to cancel visa – previous compliance with visa conditions – mental health – financial and emotional hardship to wife and sister – unusual and unexplained delay in processing of Bridging E application – expected delay before criminal trial – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 116, 189, 375A
CASE
Gong v MIBP [2016] FCCA 561
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 12 July 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) visa under s 116 of the Migration Act 1958 (the Act).
Background
The applicant in this review is Mr Gurwinder Singh, who is a 34-year-old national of India. 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 9 July 2015 holding a Student (Subclass 573 Higher Education Sector) visa, as a dependant of his wife, [Ms A], who is also a national of India. The applicant’s dependent Student visa was valid to 5 September 2017.
On 4 September 2017, the applicant applied for a second dependent Student visa and was granted a Bridging A (Subclass 010) visa pending the outcome of that application.
On 3 November 2017, the applicant was granted his second dependant Student visa that was valid to 5 September 2018.
On 30 August 2018 the applicant applied for a third dependent Student visa and was granted a Bridging A (Subclass 010) visa pending the outcome of that application.
On 22 October 2018, the applicant was granted his third dependant Student visa that was valid to 31 January 2019.
On 16 January 2019 the applicant applied for a dependent Temporary Graduate (Class VC) (Subclass 485) visa and was granted a Bridging A (Subclass 010) visa pending the…

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) [2021] AATA 5017
Case: [2021] AATA 5017
Decision Date: 25 October 2021

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 Mr Gurwinder Singh's Subclass 010 (Bridging A) visa under s 116 of the *Migration Act 1958* (Cth). Mr Singh, an Indian national, had been in Australia since 2015 and held a series of dependent student and graduate visas, with a Bridging A visa granted pending the determination of an application for an extension of his wife's graduate visa. The cancellation decision was made following Mr Singh's arrest and charge with multiple serious criminal offences, including sexual penetration without consent and unlawful and indecent assault, for which he was granted bail subject to strict conditions.

The primary legal issue before the Tribunal was whether the ground for cancellation under s 116(1)(e)(i) of the Act was made out, specifically whether Mr Singh's presence in Australia was or might be a risk to the health, safety, or good order of a segment of the Australian community. This required the Tribunal to consider the evidence presented, including the criminal charges, Mr Singh's plea of not guilty, the presumption of innocence, and the conditions of his bail, in determining if the delegate was satisfied that the risk threshold for cancellation was met.

The Tribunal reasoned that while the delegate was satisfied that the ground for cancellation existed based on the serious criminal charges, the decision to cancel the visa required a consideration of all relevant circumstances. Mr Singh's legal team argued that the allegations were unproven, he had no prior criminal history, and the magistrate had granted bail, indicating he did not pose a threat to the community. Furthermore, the Tribunal noted the unusual and unexplained delay in processing Mr Singh's application for a Bridging E visa, his subsequent detention, and the potential financial and emotional hardship to his wife. The Tribunal concluded that the decision to cancel the visa should be set aside, implying that the cancellation was not justified in the circumstances.

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 12 July 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) visa under s 116 of the Migration Act 1958 (the Act).Background The applicant in this review is Mr Gurwinder Singh, who is a 34-year-old national of India. 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 9 July 2015 holding a Student (Subclass 573 Higher Education Sector) visa, as a dependant of his wife, [Ms A], who is also a national of India. The applicant’s dependent Student visa was valid to 5 September 2017. On 4 September 2017, the applicant applied for a second dependent Student visa and was granted a Bridging A (Subclass 010) visa pending the outcome of that application. On 3 November 2017, the applicant was granted his second dependant Student visa that was valid to 5 September 2018. On 30 August 2018 the applicant applied for a third dependent Student visa and was granted a Bridging A (Subclass 010) visa pending the outcome of that application. On 22 October 2018, the applicant was granted his third dependant Student visa that was valid to 31 January 2019. On 16 January 2019 the applicant applied for a dependent Temporary Graduate (Class VC) (Subclass 485) visa and was granted a Bridging A (Subclass 010) visa pending the outcome of that application. On 24 April 2019 the applicant was granted the dependent Subclass 485 visa, which was valid to 24 April 2021. On 12 April 2021 the applicant applied for an extension to his dependent Subclass 485 visa, which has not been finally determined by the Department of Home Affairs (the Department). At the time of applying for his further dependant Subclass 485 visa the applicant was granted a Bridging A (Subclass 010) visa. On 28 April 2021 the applicant was arrested by Western Australian police and charged with six criminal offences being sexual penetration without consent (4 counts) and unlawful and indecent assault (2 counts). The applicant was remanded in custody in police cells and for a short time at Hakea Prison in Western Australia. On 29 April 2021 the applicant was granted bail, despite police objections, subject to certain conditions including the provision of a surety of AUD50,000 and a cash bond of AUD20,000. On 12 July 2021 the applicant’s Bridging A visa was cancelled under s 116(1)(e)(i) of the Act. It is the cancellation of the applicant’s Bridging A visa that is the subject of this review. On 21 July 2021 the applicant applied for a Bridging E (Subclass 050) visa which has not been finally determined by the Department. On 23 July 2021 the applicant attended a Department office for an interview in relation to his application for the Bridging E visa. At the end of that interview Department officers detained the applicant under s 189 of the Act and the applicant was transported to Yongah Hill Immigration Detention Centre (Yongah Hill IDC) in Western Australia.

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 the safety of 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 he does not agree that there is a ground for the cancellation of his visa and that he is not and will not be a risk to the health or safety of women in Australia. The applicant told the Tribunal that the allegations against him have been made by a person known to him, but if the allegations involved a complete stranger he could accept a concern that he may be a danger to women more generally. In these circumstances the applicant does not accept he is a risk to the health or safety of women in Australia. The applicant told the Tribunal he has pleaded not guilty to all of the charges filed against him and the matters alleged to support those charges remain mere allegations that have not been proven. In the response to the NOICC, the applicant’s lawyer submitted:2. The allegation against Mr Gurwinder Singh is that on one occasion he was involved in an incident involving one woman over a period of several hours. It is not the case that he has an extensive criminal history involving violence, he has no criminal history whatsoever. 3. There is no reason to think Mr Gurwinder Singh poses any threat to any other person in Australia. He has been in Australia without incident since 2015. The allegations against him are not sufficient for the minister to be satisfied he might pose a risk to a segment of the Australian Community. 4. [Paragraph redacted] 5. Mr Gurwinder Singh is currently on bail for these charges. His bail application was opposed by the police who were prosecuting however the magistrate granted him bail anyway. 6. In order for the magistrate to grant bail to Mr Gurwinder Singh he needed to be satisfied Mr Gurwinder Singh did not pose a threat to the community. The conditions imposed on Mr Gurwinder Singh in relation to his bail mean he is not allowed to travel within 100km of … where the alleged victim lives. He is not allowed to leave Western Australia and has surrendered his passport to the Court. 7. Relying on ‘The West Australian’ website as a source of information for the cancellation of a visa would amount to a mistake by the decision maker. The article referred to in your letter appears to be an article which was published on the website of ‘The West Australian’ and not in the actual newspaper and in any event, ‘The West Australian’ is not a reliable source of information. 8. As Serrington J said in EHF17 v Minister for Imigration and Border Protection ‘It might also be noted that the Parliament implicitly intends the requisite state of mind should be one which has been formed logically and rationally upon findings of fact which are logically formed upon probative evidence.’ At this juncture there is no evidence against Mr Gurwinder Singh other than the fact charges have been laid against him. The matter has not yet even been reviewed by lawyers for the State. So far it is merely an allegation by one person which has been reviewed by non-legally trained police officers. 9. The presumption of innocence is a fundamental principle of the common law. The UN Human Rights Committee has stated that the presumption of innocence imposes on the prosecution the burden of proving the charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt. Mr Gurwinder Singh has the benefit of that presumption and is presumed to be innocent of the charges he faces. Mr Gurwinder Singh intends to plead not guilty to these charges.(Errors and emphasis in original, footnotes removed)

Decision

Reasons for decision

At the time of this decision the applicant remains detained in Yongah Hill IDC. 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 as the applicant had been charged with serious criminal offences involving violence against a vulnerable woman with a physical disability the applicant’s presence in Australia is or might be a risk to the health, safety or good order of a segment of the Australian community. The delegate found the applicant’s presence in Australia is a risk to the safety of a segment of the Australian community as follows:From the above evidence I consider the visa holder’s continued presence in Australia poses a risk he may commit similar offences in the future, which could potentially cause his female victims both short and long-term harm, socially, physically, psychologically, and financially. I am therefore satisfied there are grounds for cancellation of the visa holder’s visa under section 116(1)(e)(i) of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the applicant’s visa should be cancelled.Tribunal hearing The applicant appeared before the Tribunal on 22 October 2021 to give evidence and present arguments. The applicant participated in the hearing by video from Yongah Hill IDC. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages who participated in the hearing by video. The applicant was represented in relation to the review by the applicant’s registered migration agent, Mr Dharmindher Singh of Aussizz Group. Mr Dharmindher Singh is referred to in these reasons as the applicant’s representative or the representative. The representative participated in the Tribunal hearing by video. The applicant’s wife, [Ms A] was present for the hearing with the representative at his office and observed the hearing by video. The Tribunal hearing was held during the COVID-19 global pandemic when extensive restrictions on the movement and gathering of people were in place in Victoria and Western Australia. The Tribunal determined it was reasonable to hold the hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal was satisfied the applicant, representative, interpreter and the Tribunal could satisfactorily see, hear and understand each other throughout the hearing. The Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments to the Tribunal.

Ratio Decidendi

Legal Principle Established

In the response to the NOICC, the applicant’s lawyer submitted:2. The allegation against Mr Gurwinder Singh is that on one occasion he was involved in an incident involving one woman over a period of several hours. It is not the case that he has an extensive criminal history involving violence, he has no criminal history whatsoever. 3. There is no reason to think Mr Gurwinder Singh poses any threat to any other person in Australia. He has been in Australia without incident since 2015. The allegations against him are not sufficient for the minister to be satisfied he might pose a risk to a segment of the Australian Community. 4. [Paragraph redacted] 5. Mr Gurwinder Singh is currently on bail for these charges. His bail application was opposed by the police who were prosecuting however the magistrate granted him bail anyway. 6. In order for the magistrate to grant bail to Mr Gurwinder Singh he needed to be satisfied Mr Gurwinder Singh did not pose a threat to the community. The conditions imposed on Mr Gurwinder Singh in relation to his bail mean he is not allowed to travel within 100km of … where the alleged victim lives. He is not allowed to leave Western Australia and has surrendered his passport to the Court. 7. Relying on ‘The West Australian’ website as a source of information for the cancellation of a visa would amount to a mistake by the decision maker. The article referred to in your letter appears to be an article which was published on the website of ‘The West Australian’ and not in the actual newspaper and in any event, ‘The West Australian’ is not a reliable source of information. 8. As Serrington J said in EHF17 v Minister for Imigration and Border Protection ‘It might also be noted that the Parliament implicitly intends the requisite state of mind should be one which has been formed logically and rationally upon findings of fact which are logically formed upon probative evidence.’ At this juncture there is no evidence against Mr Gurwinder Singh other than the fact charges have been laid against him. The matter has not yet even been reviewed by lawyers for the State. So far it is merely an allegation by one person which has been reviewed by non-legally trained police officers. 9. The presumption of innocence is a fundamental principle of the common law. The UN Human Rights Committee has stated that the presumption of innocence imposes on the prosecution the burden of proving the charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt. Mr Gurwinder Singh has the benefit of that presumption and is presumed to be innocent of the charges he faces. Mr Gurwinder Singh intends to plead not guilty to these charges.(Errors and emphasis in original, footnotes removed) The Tribunal asked the applicant whether he wished to rely on these submissions. The applicant indicated he did, a course of action supported by his representative. The Tribunal is not persuaded by those submissions that a ground for the cancellation of the applicant’s visa under s 116(1)(e)(i) does not exist, noting at the time of this decision the applicant had provided the Tribunal with the Statement of Material Facts (in support of the criminal charges) prepared by the Western Australian police.