Singh (Migration)

[2019] AATA 5585

Singh (Migration) [2019] AATA 5585 (26 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rubal Singh

CASE NUMBER:  1904782

HOME AFFAIRS REFERENCE(S):          BCC2019/160400

MEMBER:Shahyar Roushan

DATE:26 August 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 010 (Bridging A) visa.

Statement made on 26 August 2019 at 1:46pm

CATCHWORDS

MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – risk to the health or safety of an individual – multiple counts of domestic violence – all charges dismissed – decision under review set aside        

LEGISLATION

Migration Act 1958, s 116

CASES

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 15 February 2019 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 is a 26-year-old national of India. He first arrived in Australia on a Student visa (subclass 573) on 9 May 2014. On 27 December 2018, he made an application for a Student visa (subclass 500). He was granted a bridging visa A on the basis of his application.

3. According to the delegate’s decision record, on 14 October 2018, the applicant was charged by the New South Wales Police with multiple counts of assault and aggravated sexual assault relating to domestic violence. This was based on his alleged violent behaviour towards his then partner, Ms Poonam Shandil. The delegate referred to a NSW Police Facts Sheet obtained by the Department which recorded the alleged victim’s statement and outlined the alleged offences committed against her from 15 July 2018 to 14 September 2018. The charges consisted of the following:

   ·2 counts of Assault occasioning actual bodily harm (Domestic violence)

   ·2 counts of Intentionally choke etc person with recklessness (Domestic violence)

   ·2 counts of Stalk/intimidate intend fear actual bodily harm on victim (Domestic violence)

   ·4 counts of Aggravated sexual assault inflict actual bodily harm on victim (Domestic violence)

   ·Destroy of damage property (Domestic violence)

4. On 10 January 2019, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his bridging visa under s.116(1)(e)(ii) of the Act on the basis that he had engaged in threatening and violent behaviour committed against an individual in the Australian community.

5. On 29 January 2019, the applicant’s then representative, Mr Sandhu, provided a written response to the NOICC. The response stated that the applicant denies all the charges pending before the court, and intends to plead not guilty. It was submitted that the applicant’s visa should not be cancelled on the basis that he had never been involved in any kind of criminal activity. In support of his submission, Mr Sandhu provided a copy of an Indian police clearance certificate, issued by Haryana Police on 2 November 2018, and a number of character references.

6. According to the delegate’s decision, the delegate had requested that Mr Sandhu provides a written consent from the applicant, authorising Mr Sandhu to receive correspondence and submit information on his behalf. The written consent was not received by the delegate and, consequently, Mr Sandhu’s response to the NOICC was not taken into consideration.

7. On 15 February 2019, the delegate cancelled the visa under s.116(1)(e)(ii) of the Act on the basis that the applicant has been charged with criminal offences and his presence in Australia may pose a risk to the health or safety of an individual, namely his former partner, Ms Poonam Shandil.

   Review application

8. On 1 March 2019, the applicant applied for a review of the delegate’s decision.

9. On 14 April 2019, the applicant’s new representative, Mr Harsimranjit Singh, provided to the Tribunal a copy of a Release Application under the Bail Act 2013, requesting the applicant’s release from criminal detention on conditional bail. It was stated in the application that the applicant had attended the Central Local Court on 11 and 18 December 2018, 5 February 2019 and 19 March 2019. It also stated that it is the intention of the ODPP to withdraw a number of strictly indictable offence and other serious offences, and that the applicant is awaiting Court Attendance Notices to be issued for proceedings the Local court in mid to late 2019.

10. On 29 April 2019, Mr Singh wrote to the Tribunal, stating that the prosecution has ‘suspended 8 out of 14 charges which were serious in nature’. The applicant is not pleading guilty and will be defending himself against all the remaining charges at the next court hearing. It was alleged that the charges were fabricated by his ex-partner after the breakdown of their relationship. Mr Singh requested an adjournment of the Tribunal's hearing in relation to the review of the cancellation of the applicant’s Bridging visa until the applicant’s next Local Court hearings scheduled for 12, 13 and 16 August 2019.

11. On 30 April 2019, the Tribunal wrote to Mr Singh, advising him that the Tribunal has agreed to his request for a postponement.  

12. On 19 August 2019, Mr Singh wrote to the Tribunal, advising that the Local Court of NSW at Burwood has dismissed all the charges against the applicant. Mr Singh provided to the Tribunal a copy of the Court Order Notice, issued on 16 August 2019, corroborating this information.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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)(ii). 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.

14. The issue in the present case is whether that ground for cancellation is made out. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

    Does the ground for cancellation exist?

15. 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].

16. 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.

17. As noted earlier in this decision record, the applicant’s Bridging visa was cancelled by the Department under s.116(1)(e)(ii) of the Act on the basis that he had allegedly engaged in threatening and violent behaviour committed against an individual in the Australian community and that due to his behaviour he had been charged with multiple counts of assault and aggravated sexual assault relating to domestic violence. The delegate considered that ‘as the visa holder has come to the attention of the police for the offences relating to the alleged behaviour… [he] may be a risk to the safety of Poonam Shandil.’

18. The evidence submitted by the applicant’s representative and accepted by the Tribunal indicates that 8 out of 14 charges against the applicant were previously withdrawn and that all the remaining charges were withdrawn and dismissed on 16 August 2019. As all the relevant charges have been withdrawn and dismissed and there are no outstanding charges against the applicant in relation to his alleged behaviour towards Ms Shandil, the Tribunal is not satisfied that the applicant has engaged in violent and threatening behaviour towards Ms Shandil as alleged. The Tribunal is not satisfied that the applicant’s presence in Australia is or may be, or would or might be, a risk to the health or safety of an individual, namely Ms Shandil.

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

    DECISION

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

    Shahyar Roushan
    Senior Member