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

1. 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

2. 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.

3. 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.

4. 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.

5. On 3 November 2017, the applicant was granted his second dependant Student visa that was valid to 5 September 2018. 

6. 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.

7. On 22 October 2018, the applicant was granted his third dependant Student visa that was valid to 31 January 2019.

8. 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.

9. On 24 April 2019 the applicant was granted the dependent Subclass 485 visa, which was valid to 24 April 2021.

10. 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).

11. At the time of applying for his further dependant Subclass 485 visa the applicant was granted a Bridging A (Subclass 010) visa.

12. 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.

13. 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.  

14. 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.

15. On 21 July 2021 the applicant applied for a Bridging E (Subclass 050) visa which has not been finally determined by the Department.

16. 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.

17. At the time of this decision the applicant remains detained in Yongah Hill IDC. 

    The primary decision

18. The applicant provided the Tribunal with a copy of the primary decision.

19. 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.

20. 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.

21. 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

22. 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.

23. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages who participated in the hearing by video. 

24. 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.

25. The applicant’s wife, [Ms A] was present for the hearing with the representative at his office and observed the hearing by video.

26. 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.

27. At the commencement of the Tribunal hearing the Tribunal explained the role of the interpreter as an aid to communication and asked the applicant whether the applicant had any objection to the use of the interpreter retained by the Tribunal. The applicant indicated he did not. The Tribunal explained to the applicant the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal also explained the role of the applicant’s representative during the hearing. The Tribunal informed the applicant that it would seek submissions from the applicant and the representative toward the end of the Tribunal hearing on any matter they considered relevant to the applicant’s review.

    Pre-hearing submissions

28. On 15 October 2021 the Tribunal received a submission on behalf of the applicant which attached documents including:

    ·A two-page letter dated 13 October 2021 from Ms Karrie Louden, solicitor, from the office of Jeremy Noble, Barristers & Solicitors responding to questions asked by the Tribunal in its letter inviting the applicant to the Tribunal hearing;

    ·A one page court list for the applicant showing his next court date in relation to the criminal charges is a Committal Mention on 30 November 2021 at the Perth Magistrates Court; 

    ·A copy of the applicant’s criminal charge sheets filed on 28 April 2021; and

    ·A five-page Statement of Material Facts alleged against the applicant by Western Australia Police dated 28 April 2021.

29. The Tribunal confirmed with the applicant’s representative during the Tribunal hearing that this was the only submission provided.

30. The Tribunal also received various other correspondence from the applicant’s representative in relation to arranging the applicant’s participation in the Tribunal hearing and other administrative matters.

    Certificates issued by the delegate under section 375A of the Act

31. A delegate of the Minister issued two certificates under s 375A of the Act on 23 July 2021 and 24 August 2021.

32. The certificates apply to information on the Department file provided to the Tribunal. The Tribunal formed the view the certificates were validly issued and bound the Tribunal. The Tribunal informed the applicant during the Tribunal hearing that these certificates had been issued and their effect. The Tribunal did not seek comment from the applicant in relation to the certificates because the Tribunal formed the view the certificates had no material effect on the review. The Tribunal formed this view because the information in the documents the certificates applied to was information that was already known to the applicant and information that applicant had separately provided to the Tribunal.

    Privilege against self-incrimination

33. The Tribunal noted in its invitation to the applicant to appear before the Tribunal that if the criminal charges filed against him had not been resolved and remained before the court, then he has a privilege against self-incrimination.

34. The Tribunal’s hearing invitation explained the nature and effect of this privilege in the following terms:

    The Tribunal is not aware of whether your criminal charges have been finalised or not.

    In those circumstances you have a privilege against self-incrimination. This is a legal right not to provide information or answer questions that could tend to or may incriminate you in relation to any current or prospective criminal proceedings until those criminal matters are finalised. Incriminate in this context means tend to show you are guilty of the matters you have been charged with.

    Any answers or information you provide to the Tribunal could be used in the criminal proceedings against you. Documents provided to the Tribunal are retained for some time and Tribunal hearings are recorded. The Western Australian Police or other prosecuting authorities could obtain a copy of such documents or recording and use any information in them against you in your criminal law proceedings.

    The Tribunal will make no adverse findings or inferences against you in your application for review if you choose to rely on your privilege against self-incrimination and decide not to provide information or answer questions about the circumstances of your criminal charges. It is your legal right to do so.

    You can choose not to rely on your privilege against self-incrimination. This is called waiving your privilege. If you do waive your privilege, however, by choosing to answer the Tribunal’s questions about the circumstances of your criminal charges, then you may not be able to rely on that privilege in your criminal proceedings and anything you tell the Tribunal in relation to the criminal charges may then be able to be used against you as evidence in your criminal proceedings. The Tribunal recommends you obtain legal advice before making any decision to waive your privilege in your review before the Tribunal.

35. The letter from the applicant’s criminal law lawyers to the Tribunal, providing an update on the status of the criminal proceedings against the applicant, advised that the applicant wished to rely on his privilege against self-incrimination in the review before the Tribunal.

36. The Tribunal confirmed with the applicant during the introductory part of the Tribunal hearing that he wished to rely on his privilege against self-incrimination. The Tribunal confirmed it was the applicant’s legal right to do so and as a result the Tribunal would not make adverse findings or draw adverse inferences in relation to the alleged circumstances because the applicant had chosen not to comment on or respond to those alleged circumstances.

37. The Tribunal also informed the applicant that the concept of punishment is not relevant to the Tribunal’s review and is a matter exclusively for the criminal courts where a person is found or pleads guilty to a criminal offence or offences.   

    Tribunal decision

38. The Tribunal has had regard to the applicant’s oral evidence, all of the information in the written and oral submissions provided to the Tribunal on the applicant’s behalf and to the information in the Tribunal’s file and the Department’s file. The Department’s file included a copy of the Notice of Intention to Consider Cancellation of a visa (NOICC) served on the applicant and dated 24 May 2021, a media article referred to in the primary decision, the applicant’s reply to the NOICC dated 31 May 2021 from Jeremy Noble, Barristers & Solicitors, the delegate’s Notice of Decision dated 12 July 2021, email correspondence between the Department and the applicant or the applicant’s lawyer and internal Departmental documents.

39. 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

40. 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

41. 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].

42. 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.

43. 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.

44. 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)

45. 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.

1. Under s 116(1)(e)(i) if there is a risk to the health, safety or good order of a segment of the Australian community, which in the present case requires assessing whether the presence of the applicant in Australia may be or would be a risk to the safety of women, then a ground for cancellation of a visa is enlivened, but does not require that cancellation.

2. The Tribunal explained to the applicant that the element of whether the applicant is or may be ‘a risk’ in the sense required by s 116(1)(e) is a deliberately low threshold set by Parliament and that threshold does not require the Tribunal to determine the applicant’s guilt or otherwise to the criminal charges, such that it is not the Tribunal’s task nor appropriate for the Tribunal to conduct a quasi-criminal law trial when deciding whether the applicant is a relevant ‘risk’ for the purposes of s 116(1)(e)(i).

3. As the Federal Circuit Court noted in Gong:[2]

   38.Sub section 116(1)(e) was repealed and substituted by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth). Prior to that amending legislation, sub-s.116(1)(e) was engaged by risk to the health, safety or good order “of the Australian community”, and the amendment effectively added the words “or a segment of the Australian community”. In addition, sub-s.116(1)(e) was previous engaged with the visa holder’s presence in Australia “is, or would be, a risk” and the amendment change this to “is or may be, or would or might be, a risk”.

   …

   40.Both parties relied on the various parts of the Explanatory Memorandum circulated in respect of the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth). There, it was explained (at [13]) that this change is sought “to lower the threshold of this cancellation ground, so that it exists where there is a possibility that the person may … be a risk … as well as where there is demonstrated to be an actual risk of harm”. With respect to the careful argument presented by both counsel, the fact that the amendment lowered the threshold is as plain as pikestaff and the statement to that effect in the Explanatory Memorandum is unhelpful in, if not irrelevant to, the construction of sub-s.116(1)(e).

   [2] Gong v Minister for Immigration & Anor [2016] FCCA 561 at [38] and [40].

4. The use of the word “may” in s 116(1)(e) means the threshold is set at the possibility of a risk. This is a very low threshold. In other forums this threshold has been criticised as being no threshold at all because of the nature of the concept of risk. However, the wording of s 116(1)(e) has not been changed by Parliament and the possibility of a risk therefore continues to be the threshold test for whether the cancellation power under s 116(1)(e) is enlivened. The Tribunal is bound to apply that test.

5. The lowering of the threshold for decision makers to be satisfied that the ground for cancellation of a visa exists under s 116(1)(e) was expressed by the Federal Circuit Court in Gong in the following manner:

   41.… Simply put, the fact that sub-s.116(1)(e) is engaged where the Minister is satisfied that a visa holder’s presence “may be a risk” to certain matters means that there does not have to be … any direct, solid or certain foundation before the power to cancel the visa can arise. In other words, it can arise on the possibility that some event occurred in the past. In this case, that possibility was supported by the laying of the charges. That is to say that that fact alone was not legally irrelevant to the question posed by sub-s.116(1)(e).

6. As the applicant chose to rely on his privilege against self-incrimination the Tribunal confirmed with the applicant that the criminal charges filed against him remained before the court but did not question the applicant about the circumstances of those charges. The applicant confirmed to the Tribunal that he has entered a plea of not guilty to all charges and provided a court document confirming he entered those pleas on 19 August 2021. The Tribunal accepts this evidence. As the applicant has not been able to put his version of events to the Tribunal in relation to the criminal charges, the Tribunal makes no adverse findings and draws no adverse inferences from the allegations made by Western Australian Police to support the criminal charges.

7. The Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’ provides guidance to delegates of the Minister when exercising their delegated authority to cancel visas under s 116(1)(e)(i) in relation to a risk to safety as follows:

   Criminal charges 

   The fact that prosecuting authorities have concluded that there is a proper basis to bring a charge or charges against a visa holder may, depending on the nature of the offence(s), and the circumstances of the case, be sufficient to support the state of satisfaction required by s116(1)(e).

   Delegates must have regard to the nature of the offence and draw a logical or rational link to how the alleged offending poses a risk to the health, safety or good order of the Australian community (or the health or safety of an individual(s)). For example, if a visa holder is charged with the commission of a violent offence, delegates must draw a connection between the nature of the alleged offence and the specified risk to health or safety that it poses. Property offences are not likely to pose a risk to the health or safety or good order of a segment of the Australian community or to the health or safety of an individual or individuals. 

   A charge, of itself, may not be sufficient to support the requisite satisfaction required by s116(1)(e). Generally, delegates need to consider additional contextual information when deciding whether the existence of the charges justifies an inference that the visa holder engaged in the conduct charged. Delegates must turn their mind to the circumstances in which the alleged offence was committed and list the evidence which forms the basis for finding that a person may be or might be a relevant risk. Delegates should consider whether the evidence upon which they rely is high quality and acquired from a reputable, credible source. Information that may be relied upon as evidence may, where available, include:

   ·         an arrest warrant

   ·a police charge sheet and statement of facts, which details the offences for which the visa holder has been charged

   ·an objection to bail affidavit, if applicable, where the police have provided reasons as to why a visa holder should not be granted bail.

   It is not appropriate that s116(1)(e) be considered in respect of allegations of low level or minor criminal behaviour. (emphasis in original)

8. The applicant has been charged with six offences under the Criminal Code Compilation Act 2013 (WA). The two charges of unlawful and indecent assault are punishable by up to five years imprisonment or if heard summarily up to two years imprisonment and a fine of up to AUD24,000[3]. The four charges of sexual penetration without consent are punishable by up to 14 years imprisonment and cannot be heard summarily[4]. The Tribunal considers these to be significant and serious charges of personal and sexual violence against a vulnerable and physically less able person.  

   [3] Section 323 of the Criminal Code Compilation Act 2013 (WA).

   [4] Section 325 of the Criminal Code Compilation Act 2013 (WA).

9. The nature of the alleged offences, in the Tribunal’s view, poses an obvious and significant risk to the safety of a segment of the Australian community, being women, including those living with a disability. The Tribunal agrees with the observations of the delegate in the primary decision in this regard:

   Violence against women is a crime and a fundamental breach of human rights. Violence can take place in a range of different settings and forms, and includes threats of, and physical and sexual abuse and assault, emotional abuse and stalking. Experiencing violence can result in long term social, health, psychological, financial, and economic impacts on individuals. Many women and their families experience social, health, and psychological suffering in the years and decades that follow violence and abuse, with higher levels of anxiety, depression and fear often continuing to impact the lives of women on a daily basis. [footnotes removed]

10. The Tribunal notes that the Western Australian Police opposed the applicant being granted bail but the applicant has been granted bail, subject to conditions which the applicant confirmed to the Tribunal include that he not go within 100 kilometres of the town where the applicant’s alleged victim lives and also lodge a total of AUD70,000 in bond and sureties. The applicant told the Tribunal he had lodged the AUD20,000 bond and a cousin provided the AUD50,000 surety. These conditions indicate to the Tribunal that while the criminal court decided that the applicant should be granted bail there was sufficient concern about the risk that the applicant presents to his alleged victim and women in the Australian community, that significant conditions have been placed on the grant of bail.

11. 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

12. 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 Instructions, formerly known as its Procedures Advice Manual or PAM3, ‘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 remain in Australia

13. The applicant told the Tribunal he has a compelling need to remain in Australia because he came here with his wife and he provides important financial and emotional support to her during her studies in Australia. The applicant also told the Tribunal he financially supports his younger sister who is also studying in Australia. [Information redacted].

14. The applicant explained his work history since arriving in Australia to the Tribunal, including most recently working as a truck driver for a sub-contractor to major transport businesses and earning between AUD52,000 to AUD67,000 per annum.

15. Both the applicant’s wife and sister represented to the Australian government when they applied for and were granted their Student visas that they had genuine access to sufficient funds to cover the cost of them (and their dependents) living and studying in Australia.

16. The applicant’s wife, [Ms A], has completed her studies in Australia, has been granted a Subclass 485 visa and has applied to extend that Subclass 485 visa.

17. Student visas and Subclass 485 visas are temporary visas which require the holder at the end of those visas to return to their home (or a third) country.

18. For these reasons, the Tribunal finds that the applicant does not have a compelling reason to remain in Australia.

19. The Tribunal finds that this consideration weighs in support of the cancellation of the applicant’s visa and the Tribunal gives this consideration significant weight.

    The extent of the applicant’s compliance with their visa conditions

20. Since arriving in Australia in July 2015 the applicant has held three dependent Student visas, a dependent Subclass 485 visa and four Bridging A visas, all of which had conditions attached.

21. The applicant told the Tribunal that he has always complied with the conditions attached to the various visas he has held during his time in Australia, including when one of the conditions of the Student visas he held was to restrict the hours he could work.

22. There is no evidence before the Tribunal that the applicant has ever been found to have breached a condition attached to the various visas he has held during his time in Australia.

23. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration some weight.

    The degree of hardship that cancellation may cause (financial, psychological, emotional or other hardship) to the applicant and any family members

24. The applicant told the Tribunal that the cancellation of his visa will cause significant financial hardship to his wife, sister and himself and will also cause him psychological hardship and his wife and sister emotional hardship. The Tribunal did not have the benefit of receiving evidence from [Ms A] or from the applicant’s sister.

25. In relation to financial hardship the applicant told the Tribunal that at the time of his detention he had approximately AUD6,000 to AUD7,000 in savings but he has had to pay for legal representation in relation to the criminal charges filed against him and also for representation in this review before the Tribunal.

26. Prior to being detained the applicant’s evidence is, as noted in paragraph 59 of these reasons, that he had always worked to support his wife, himself and his sister and had done so through lawful means and paid income tax on all of his earnings.

27. The applicant told the Tribunal there is no-one from his family to support his wife or sister as his parents are older and retired and it is the same with his wife’s parents. [Information redacted]. The applicant claims the cancellation of his visa would cause great financial difficulties for him, his wife and sister. The Tribunal accepts the cancellation of the applicant’s visa will cause some financial hardship, although the weight the Tribunal gives this aspect of this consideration is reduced because there is no evidence before the Tribunal as to the amount or frequency of the applicant’s financial support for his sister or how much his wife, [Ms A], currently earns.

28. The applicant told the Tribunal he is finding it very difficult emotionally and psychologically being held in immigration detention. His evidence is he shares a room with another detainee, is able to maintain his religious observances but is not served vegetarian food, is not on any medication for the psychological difficulties he is experiencing but is on medication for leg pain.

29. The applicant told the Tribunal his wife has only been able to get to Yongah Hill twice to visit him in the three months that he has been detained because she does not have a driver’s licence and relies on friends to take her to Yongah Hill.

30. The applicant told the Tribunal he has a mobile telephone which he can use whilst in detention but constantly thinks about his wife and sister and how they are coping without his support and this causes him great stress. The applicant also told the Tribunal his detention has been very stressful for his parents in India and he thinks about them also.

31. The Tribunal asked the applicant when he expects his criminal charges to proceed to a trial. The applicant told the Tribunal his criminal law lawyers had indicated that might occur in late 2022 or in early 2023. The submission received by the Tribunal on 15 October 2021 included a letter from the applicant’s criminal law lawyers which responded to a number of requests from the Tribunal for updated and additional information in the Tribunal’s hearing invitation.

32. The applicant’s criminal law lawyers advised in response to the Tribunal’s request for information that:

    The matters are still in the Perth Magistrates Court. Mr Gurwinder Singh has entered pleas of not guilty to all six charges and intends to defend them in court. The State of Western Australia is required to provide Mr Gurwinder Singh with a brief of evidence they intend to rely on before the matters progress to the Perth District Court where they will be heard. It is unlikely the matter will progress to the District Court this year. Once it has progressed to the District Court the current wait times for trials of this nature are in the vicinity of 12-18 months. We are currently listing matters into March 2023.

33. The Tribunal asked the applicant how would he cope, if his visa was cancelled, with being held in detention for another 12 months or longer before his criminal trial occurred. The applicant told the Tribunal that he has been under great mental stress since being detained and he is concerned his mental health may deteriorate if he continues to be detained.

34. The delay before the applicant’s criminal trial is expected to occur is a significant matter in the Tribunal’s consideration of the hardship cancellation of the applicant’s visa would visit upon him and his family. The applicant has been granted bail and the best estimate of his criminal law lawyers is:

    It is anticipated a trial will be listed by mid-2023.

35. If that estimate is correct the applicant faces another 18 to 20 months in immigration detention before his criminal trial is expected to commence. The Tribunal considers this will cause the applicant and his wife very real and substantial emotional and financial hardship.

36. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and, in the applicant’s specific circumstances, the Tribunal gives this consideration great weight.

    The circumstances in which the ground for cancellation arose. Were there any extenuating circumstances beyond the applicant’s control that led to the ground for cancellation existing? As a general rule, a visa should not be cancelled if the circumstances in which the ground for cancellation arose were beyond the applicant’s control.

37. The circumstances in which the ground for the cancellation of the applicant’s visa arose are that he has been charged with criminal offences. The applicant told the Tribunal the alleged victim was known to him and the circumstances alleged against him are not what occurred. Given the applicant has a privilege against self-incrimination the Tribunal was careful to avoid the applicant putting his version of events to the Tribunal, given such explanation could cause the implied waiver of his privilege.

38. The applicant’s representative submitted that there were no circumstances that were beyond the applicant’s control but the consequences of the allegations made against him had been horrendous, both for the applicant and his wife.

39. There is no information before the Tribunal to indicate that the allegations made against the applicant that led to the cancellation of his visa involved any extenuating circumstances that were beyond the applicant’s control. This is not a finding that the applicant is or may be found guilty of any of the criminal charges filed against him. It is a finding that the Tribunal has not been made aware of any extenuating circumstances in the applicant’s circumstances.

40. The Tribunal finds that this consideration weighs in support of the cancellation of the applicant’s visa and the Tribunal gives this consideration considerable weight.

    The past and present behaviour of the applicant towards the Department (including whether they have been truthful and cooperative)

41. The applicant responded to the NOICC within time and otherwise participated in a co-operative manner in the process that led to the cancellation of his visa. There is no information before the Tribunal that the applicant has been anything other than truthful and co-operative with the Department.

42. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration some weight.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s 140 of the Act

43. The applicant held a Bridging A visa pending the outcome of his wife’s principal application and his dependent application, for a Subclass 485 visa.

44. The information before the Tribunal is that no-one is dependent upon the applicant’s visa and no other visa would be cancelled under s 140 of the Act if the applicant’s visa is cancelled.

1. The Tribunal finds that this consideration is neutral and weighs neither against nor in support of the cancellation of the applicant’s visa.

   Whether there are mandatory legal consequences to a cancellation decision such as whether cancellation would result in the applicant becoming an unlawful non-citizen and liable to detention and removal or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention

2. Some of the mandatory legal consequences that would follow if the Tribunal cancelled the applicant’s visa have been visited upon the applicant as he has already been detained under s 189 of the Act as an illegal non-citizen. The Tribunal also explained to the applicant the potential for him to be deported under s 198 of the Act and the effect of s 48 of the Act which prevents the applicant from applying for many, mainly temporary, visas while he remains in Australia.

3. When a visa holder commits a criminal offence or offences in Australia, particularly when those offences are as serious as the offences the applicant has been charged with, the visa can reasonably expect that there will be mandatory legal consequences for their immigration status in Australia. In those circumstances, this consideration can weigh in support of the cancellation of a visa.

4. Those are not the applicant’s circumstances. While the applicant has been charged with very serious criminal offences of personal and sexual violence that are alleged to have occurred, if those allegations are proven, in morally repugnant circumstances, the applicant has not yet been tried on those matters. At the time of this decision, the allegations made in support of the criminal charges filed against the applicant remain just that, unproven allegations.

5. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration some weight.

   Whether Australia has obligations under relevant international agreements including non-refoulement obligations and the best interests of any children in Australia as a primary consideration, that would be breached as a result of the visa cancellation

6. The applicant does not claim that Australia has any obligations under international agreements that would be breached if the applicant’s visa is cancelled.

7. The Tribunal finds that this consideration is neutral and weighs neither against nor in support of the cancellation of the applicant’s visa.

   If the applicant holds a permanent visa, whether the applicant has strong family, business or other ties in Australia

8. The applicant’s visa is a temporary visa.

9. The Tribunal finds that this consideration is neutral and weighs neither against nor in support of the cancellation of the applicant’s visa.

   Any other relevant matter

10. Neither the applicant nor his representative raised any issues during this review about the impact of the COVID-19 global pandemic on the applicant’s circumstances.

100.   The applicant’s representative made closing submissions that:

·The applicant applied for a Bridging E visa on 21 July 2021 and despite speaking to a senior officer at the Department who the representative understands to be “in charge of the BVE department” the applicant and his representative have been given no meaningful explanation for the delay in a decision being made on that application;

·The ongoing delay in a decision being made on the application for a Bridging E visa and the lack of explanation from the Department for that ongoing delay has been very traumatic for the applicant and has added to the hardship he is experiencing; and

·The cancellation of the applicant’s visa and his subsequent detention has had an emotional impact on his wife, [Ms A], that is hard to explain. [Information redacted].

101.   The Tribunal accepts these submissions and has taken them into account in these reasons for decision. The Tribunal notes that it is very unusual in its experience that a decision has not been made on a Bridging E visa application after three months when the applicant is being held in immigration detention.

102.   The Tribunal notes that [Ms A] had chosen not to give evidence in her husband’s review before the Tribunal. The Tribunal accepts that the circumstances [Ms A] currently finds herself in are very difficult for her and draws no adverse inferences against the applicant because [Ms A] chose not to give evidence.

103.   Given the submissions of the applicant’s representative, the Tribunal asked [Ms A] if she wanted to say anything to the Tribunal. The Tribunal first explained to [Ms A] that whatever decision she made about making a statement to the Tribunal would have no adverse impact on her husband’s review. The Tribunal reinforced this approach by confirming if [Ms A] chose to make a statement the Tribunal would not swear her in as a witness or treat her statement as evidence.

104.   [Ms A] told the Tribunal, with what the Tribunal observed to be great dignity, that if her husband is with her they can face anything together but she cannot continue on her own as it has been incredibly hard on her emotionally and financially since he has been detained.  

Conclusion

105.   The Tribunal finds that the considerations of the applicant’s compliance with his visa conditions, the hardship the applicant and in particular his wife will experience, the applicant’s past and present behaviour toward the Department and the mandatory legal consequences that will flow for the applicant from cancellation all weigh against the cancellation of the applicant’s visa.

106.   Considering the circumstances as a whole, the Tribunal concludes that the considerations that weigh against the cancellation of the applicant’s visa outweigh the considerations that weigh in support of the cancellation of the applicant’s visa and therefore the applicant’s Bridging A visa should not be cancelled.

DECISION

107.   The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa.

Michael Ison
Senior Member