Singh (Migration)

[2019] AATA 5051

Singh (Migration) [2019] AATA 5051 (8 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harpreet Singh

CASE NUMBER:  1810661

HOME AFFAIRS REFERENCE(S):           BCC2018/398560

MEMBER:David McCulloch

DATE:8 November 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

Statement made on 08 November 2019 at 8:57am

CATCHWORDS
MIGRATION – cancellation – Vocational Education and Training Sector (Class TU) visa – Subclass 572 (Student) (Temporary) – risk to health, safety or good order of community – criminal charges – not proved and no conviction – decision under review set aside

LEGISLATION

Migration Act 1959 (Cth), s 116(1)(e)

CASE

Gong v MIBP [2016] FCCA 561

Tien v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 16 April 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(e) on the basis that the applicant may be, or would or might be, a risk to the health, safety or good order of the Australian community or 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.

3. The Tribunal proceeded to make a decision without conducting a hearing given evidence that the applicant was not convicted of the various charges against him.

4. 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

5. 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). 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?

6. A visa may be cancelled under s.116(1)(e) 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; or the health or safety of an individual or individuals. 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].

7. The expression ‘good order of the Australian community’ is not defined in the Act. Although considering an earlier version of s.116(1)(e), the reasoning in Tien v MIMA (1998) 89 FCR 80 is still relevant. The Court held at [94] that the term must be construed in the context in which it appears, that is juxtaposed to the words ‘the health, safety’ of the Australian community. That is, it contains a public order element and concerns activities which have an impact on public activities or which manifest themselves in a public way. It requires that there be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.

8. The applicant has provided to the Tribunal a copy of the decision of the delegate. That decision indicates  that the applicant has been charged on 19 January 2018 by New South Wales police with the following offences:

   ·     one count of assault with act of indecency

   ·     one count of take or detain person with intent to commit serious indictable offence

9. A submission and supporting documents were provided by the applicant’s migration agent in response to the Notice of Intention to Consider Cancellation (NOICC) sent by the Department.  The range of documents provided are set out below, as per information on the Departmental file and the delegate’s decision:

   ·     Statements by migration agent acting on behalf of visa holder dated 27 March 2018 and 20 March 2018

   ·     Details of visa holder’s enrolment in Advanced Diploma of Business and course academic progress

   ·     Evidence of visa holder’s criminal record application to the Australian Federal Police

   ·     Bail order issued by Burwood Local court

   ·     Contact details of visa holder’s lawyer

   ·     Visa holder’s statement confirming that all submissions are true and correct

   ·     Course completion certificate for Diploma of Business Administration

   ·     Evidence of satisfactory grading by school for assignment submissions

   ·     Copy of visa holder’s Indian passport and NSW Photo Card

   ·     Letter from visa holder’s lawyer Mr Navjot Singh dated 20 March 2018

   ·     Letter from visa holder’s lawyer Mr Navjot Singh dated 5 April 2018

   ·     Visa holder’s marriage ceremony booking confirmation

   ·     Visa holder’s Certificate of Marriage to Ms Prabhdeep Kaur on 19 March 2018

   ·     NSW Police Bailee reporting receipts

   ·     Evidence of release of visa holder’s passport by NSW Police

   ·     School leaving certificates issued by visa holder’s schools issued on 23 June 2015 and 12 August 2013

   ·     Character references for visa holder by Mr Amritpal Singh, Mr Japanpreet Singh, Mr Ashok Kumar Sharma

   ·     Statement by visa holder’s wife Ms Prabhdeep Kaur

10. The submission by the migration agent dated 27 March 2018 indicates that the applicant is not guilty of the offences and outlines the claimed circumstances of the alleged events. The applicant has been granted bail. The submission indicates that the applicant is making good progress in his studies in Australia and got married on 19 March 2018. The applicant has successfully completed his diploma course and is about to finish his advanced diploma. The applicant has not breached visa conditions and has displayed good behaviour to the Department. The applicant is a person of good character. The submission refers to hardships that would be faced by the applicant and his family if the visa is cancelled. He will face a loss of reputation resulting in social isolation. The applicant is from a good family and this entire family will be ridiculed. The applicant’s wife will also face the same serious consequences. The applicant’s studies and career will be compromised.

11. The Tribunal obtained information that the trial of the charges against the applicant was scheduled for 16 September 2019 and set down for a week. Subsequently, the Tribunal sought with a summons to the New South Wales Police Force information held by NSW Police in relation to the two charges against the applicant. Information was provided which included a statement of court results dated 14 October 2019 in relation to the charges against the applicant considered in the Parramatta District Court. That information indicated that there was a ‘non-conviction’ for the two charges against the applicant and that the offences were ‘not proved’.

12. Given the lack of a conviction against the applicant and that the charges were not proved the Tribunal does not draw any adverse inference against the applicant in relation to the factual allegations against him set out in the New South Wales Police Facts Sheet dated 20 January 2018.

13. In the circumstances of the non-conviction on the relevant charges, the Tribunal is not satisfied that the applicant meets the criteria set out in s.116(1)(e). None of the allegations against the applicant have been proved. There is no other evidence before the Tribunal of the applicant being a risk to the community. Therefore the Tribunal is not satisfied that the applicant 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; or the health or safety of an individual or individuals.

14. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(e) exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

15. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

    David McCulloch
    Member