Singh (Migration) - [2023] AATA 1967

Singh (Migration) [2023] AATA 1967 (29 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Arvind Ajay Singh
CASE NUMBER:  2210947
HOME AFFAIRS REFERENCE(S):          BCC2022/2347776
MEMBER:Bridget Cullen
DATE:29 May 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision to cancel the Applicant’s Subclass 485 (Temporary Graduate) visa.

Statement made on 29 May 2023 at 9.44am
CATCHWORDS
MIGRATION – cancellation – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – ground for cancellation – risk to safety of Australian community or individual – charged with one count of Rape – no prior convictions – consideration of discretion – decision under review affirmed
LEGISLATION
Criminal Code 1899 (Qld), s 349
Evidence Act 1977 (Qld), s 93A
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107
CASES
Gong v MIBP [2016] FCCA 561
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 27 July 2022 made by a delegate of the Minister for Home Affairs to cancel the Applicant’s Subclass 485 (Temporary Graduate) visa under s 116 of the Migration Act 1958 (Cth) (the Act). Had the Applicant’s visa not been cancelled, it would have expired on 2 April 2024.
On 19 May 2022, the Applicant was charged with the offence of Rape of a 4-year-old child, pursuant to s 349(1) of the Criminal Code 1899 (Qld). The delegate cancelled the Applicant’s visa under s 116(1)(e)(i) on the basis that the delegate considered that the Applicant’s presence in Australia is, or may be, a risk to the safety of a segment of the Australian community, namely children. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The Applicant appeared before the Tribunal on 13 April 2023 to give evidence and present arguments.
The Applicant was represented in relation to the review by his maternal aunt. [Applicant’s maternal aunt] made submissions on the Applicant’s behalf.
For the following reasons, the Tribunal has concluded that the decision to cancel the Applicant’s visa should be affirmed.
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?
s 116(1)(e) - risk to Australian community or individual
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…

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) [2023] AATA 1967
Case: [2023] AATA 1967
Decision Date: 29 May 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the cancellation of Mr Singh's Subclass 485 (Temporary Graduate) visa. The Minister had cancelled Mr Singh's visa under section 116(1)(e)(i) of the Migration Act 1958 (Cth) on the ground that his presence in Australia posed a risk to the safety of an individual or the Australian community. This cancellation was based on Mr Singh having been charged with one count of rape concerning an alleged incident involving a child at a childcare centre where he was employed as an educator.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(e)(i) was established, and if so, whether the discretion to cancel the visa should be exercised. Section 116(1)(e)(i) permits visa cancellation if the Minister is satisfied that the visa holder's presence in Australia is or may be a risk to the health, safety, or good order of the Australian community or an individual. The Tribunal noted that this ground does not require a direct, solid, or certain foundation, but can arise from the possibility of past events. The phrase "good order of the Australian community" was interpreted as encompassing activities that impact public order, disrupt the administration of law, or create difficulties in relation to societal values.

The Tribunal found that the ground for cancellation was established, noting that Mr Singh had been charged with rape of a child, and the particulars of the charge indicated a serious risk to the safety of an individual. Despite acknowledging Mr Singh's stated purpose for being in Australia, his compliance with visa conditions, and his lack of prior convictions, the Tribunal concluded that the gravity of the charge outweighed these factors. The Tribunal reasoned that the alleged conduct, if proven, represented a significant risk to the safety of children and the community, particularly given his role as an educator. Consequently, the Tribunal affirmed the decision to cancel Mr Singh's visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel the Applicant’s visa should be affirmed.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?s 116(1)(e) - risk to Australian community or individual 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]. 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.9.On 19 May 2022 the Applicant was charged with one count of Rape under s 349(1) of the Criminal Code 1899 (Qld). The particulars of the charge are as follows:·On an unknown date between 25 March 2022 and 26 April 2022, at Burnside Queensland, Arvind Ajay Singh raped [child]. ·The defendant was working as an educator in the kindergarten room at [childcare centre] and was assisting in the care of kindergarten-aged children including [child].·On 26 April 2022, the victim disclosed discomfort in her genital area to her mother. She later disclosed to her father and then both her parents that the Applicant had digitally penetrated her at childcare. She then demonstrated to her parents how this happened, and said that she didn’t like it. ·The child’s parents reported the matter to the police that evening. On 19 May 2022, the Applicant was arrested, charged and released on bail to appear in the Maroochydore Magistrates Court on 27 June 2022.The Tribunal issued a summons to the Queensland Police Service (QPS) for the Applicant's person history which was subsequently provided to it on 3 April 2023. The summons documents reflect that the Applicant remains charged with those matters set out in paragraph 4, above.

Decision

Reasons for decision

The Tribunal has considered the appropriate exercise of its discretion carefully. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled. DECISION The Tribunal affirms the decision to cancel the Applicant’s Subclass 485 (Temporary Graduate) visa.Bridget CullenSenior Member

Ratio Decidendi

Legal Principle Established

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 power to cancel the visa should be exercised.Consideration of discretion There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the Applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.The purpose of the Applicant's travel to and stay in Australia The Applicant’s Subclass 485 Temporary Graduate visa was granted in April 2022, on the basis of the Applicant having recently graduated with skills and qualifications relevant to the skilled occupation of Child Care Worker. The Temporary Graduate visa permits the visa holder to live, work and study in Australia temporarily for a period of two years from the date of grant. The Applicant explained the purpose of his travel as follows:To come and study childcare and work with children, firstly I’m here to fulfill my sister’s final wish as she passed away on 1st January 2004 at a very young age of 12 years. I was only 20 at that time, she wanted to be a nurse and look after children, and grow up and provide free education for the poor families in the community. Secondly when I was a child, I never had someone looking after me, and teaching me, I am self-made, I educated myself. And to give back to the community. I have worked very hard and did long hours to pay for my university to fulfill my sister’s last wish and her dream. I have achieved Bachelors of Arts in Fiji, and I am a qualified Web Designer and Graphic Artist, and owned an IT business / Internet Café. I was a Merchant Receiving Clerk, then I finally had enough finance to fulfill my sister’s dream. So, I came to Australia on 18th December, 2018, on a student Visa, to study Childcare to fulfill my sisters dream, to help and educate children from young age to become an Educator. In my short time in Australia, I have completed my Diploma in Early Childhood Education and Care, and landed my dream job which is walking distance from my accommodation. The Applicant was, prior to cancellation, complying with the purpose of his Temporary Graduate visa. Since his arrest, the Applicant has been unable to fulfill the purpose of his travel to Australia. The Tribunal this consideration some weight against cancelling the visa. The extent of compliance with visa conditions and past and present conduct of the visa holder towards the department There is no information before the Tribunal indicating that the Applicant has breached any conditions attached to his visa, or that he has been uncooperative in his dealings with the Department. The Applicant told the Tribunal that he has been careful to maintain private health insurance cover, as required. The Tribunal places some weight on these matters as factors in the Applicant’s favour.Circumstances in which the ground for cancellation arose