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

1. 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.

2. 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.

3. The Applicant appeared before the Tribunal on 13 April 2023 to give evidence and present arguments.

4. The Applicant was represented in relation to the review by his maternal aunt. [Applicant’s maternal aunt] made submissions on the Applicant’s behalf.

5. 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

6. 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

7. 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].

8. 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.

9. The Tribunal informed the Applicant that the information is relevant to the review because it suggests that his presence in Australia is or may be, or would or might be, a risk to the health or safety of an individual or individuals. Depending on his response, the letter further informed the Applicant that if the Tribunal relied on his Queensland Criminal History in making its decision, it may decide that the ground for cancellation exists under section 116(1)(e)(i) of the Migration Act 1958, resulting in the Tribunal affirming the decision under review.

10. The Applicant strenuously denies having engaged in the conduct with which he is charged. He has provided the Tribunal with a range of information relating to the particulars of the alleged offence, and his defence. The Tribunal has been provided with a letter indicating that the solicitor representing him in the criminal proceedings was scheduled to appear at a mention of the matter in the Maroochydore Magistrates Court on 15 March 2023.

11. Additionally, the Applicant provided the Tribunal with a “Patient Health Summary” for the child, following her consultation with a medical practitioner. That letter indicates that the child made a disclosure to her father that, “a male teacher has been using his fingers to touch her genital area and penetrate her when he picks her up for a cuddle. She says he has [sic] doing this for 2 weeks approximately, when other teachers leave the room.” The Doctor concludes that, “Apprehensive about allowing any genital inspection, but a good view of vaginal introitus was eventually obtained with assistance of both parents. Hymen was seen to be intact and the vaginal entrance only a few mm in diameter….No bleeding or bruising or discharge.”

12. The Applicant has also provided the Tribunal with a copy of his criminal defence solicitor’s application to cross-examine witnesses at the Committal Proceedings, dated 22 March 2023. The application indicates that the child participated in a s 93A Evidence Act 1977 (Qld) on 28 April 2022, and that the Applicant’s criminal defence solicitor intends to pursue various lines of cross-examination of Crown witnesses.

13. Additionally, the Applicant has provided a “pretext” audio recording of a conversation between [Applicant’s supervisor], the Applicant’s supervisor at the Childcare Centre, and the Applicant.  The recording of the “pretext” conversation was facilitated by the Queensland Police Service. In the conversation, the Applicant denies touching the child’s “gina”.

14. Further, the Applicant has provided the Tribunal with a copy of his response to the Department’s Notice of Intention to Consider Cancellation, dated 11 July 2022. The Applicant says that the child’s complaint is a “made-up story,” and he asserts that he has been “framed” by the child’s mother.

15. With respect to the Applicant’s criminal history, it is noted that but for the pending charges, the Applicant has no prior convictions within the state of Queensland.

16. As explained to the Applicant in the hearing, it is not the role of this Tribunal to determine whether he is, or is not, guilty of the charges that remain. The Tribunal acknowledges that the Applicant asserts he is innocent. There is no information in front of the Tribunal that objectively indicates that the Applicant’s release is imminent, or that the charges have been, or are likely to be dropped.

17. The threshold in s 116(1)(e)(i) is a low bar – it requires the Tribunal to determine that the presence of the applicant in Australia is or 'may' be a 'risk', 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. If this test is met, the cancellation power is enlivened.

18. The information contained in the Queensland Police Service Court Brief sets out the case against the Applicant. It alleges that the Applicant digitally penetrated a 4-year-old child in his care, during the course of his employment. It is beyond dispute that childhood sexual abuse is a serious matter with the potential to impact victims throughout their lifetimes. The Tribunal infers from the charges having been brought against the Applicant that the Queensland Police considered the evidence against him to be sufficiently probative to justify charging him with the offence of rape, and that he has a case to answer on this charge. That the Queensland Police Service, which is an independent and authoritative body, decided to charge the applicant carries substantial weight with the Tribunal. On those grounds, the Tribunal finds that the Applicant may or might have engaged in rape, as alleged.

19. The fact of the charges as set out here is sufficient for the Tribunal to conclude that the Applicant's presence in Australia is or may be, or would or might be, a risk to the health or safety of a segment of the Australian community (children), or of an individual (this child).

20. 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

21. 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

22. 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.

23. 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 1^st 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 18^th 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.

24. 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

25. 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

26. The cancellation power under s 116(1)(e)(i) was enlivened when the Queensland Police Service charged the Applicant with the offence of rape of a then four-year-old child. The Applicant maintains his innocence.

27. In this review, the Tribunal is not tasked with deciding whether the Applicant is guilty or innocent of the charge, nor does the Tribunal have sufficient evidence before it to decide that matter. Accordingly, the Tribunal is not able to assess whether the Applicant will, or will not, be convicted on the charge against him. On that analysis, this consideration is neutral.

    The degree of hardship that may be caused (financial, psychological, emotional or other hardship)

28. The Applicant told the Tribunal that he has limited family presently living in Fiji and that his parents and brother reside in Sydney. The Tribunal asked the Applicant whether his parents and brother had permanent residency status, to which the Applicant responded that they are all present in Australia on student visas. As a student visa is temporary, the Tribunal considers it possible that the Applicant’s parents and brother will be required to return to Fiji at the end of their studies.

29. The Applicant has other relatives living in Australia with permanent residency status. It may be difficult for the Applicant to return to Australia to visit his extended family in Australia, which would cause him some potential hardship. The Tribunal does not know how practical it would be for these family members to travel to Fiji to visit the Applicant. The Tribunal accepts that the Applicant has a close relationship with some of his extended family in Australia, in particular [Applicant’s maternal aunt] (the aunt representing him in these proceedings).

30. The Applicant has been unable to work since his arrest, and is reliant on his family for financial support at present. The Applicant has borrowed funds to pay for his studies, which he will be required to repay even if his visa remains cancelled. The Tribunal observes that the Applicant has completed the studies he paid for to date, but accepts that he also sought to obtain practical work experience. The Applicant says that he wanted to pursue a Bachelors’ Degree in Childcare, which he will be unable to do in Australia if his visa is cancelled. While he did have a job in Fiji prior to his studying in Australia, he has been replaced in this role and has no job to return to.

31. On an emotional level, the Applicant wants the opportunity to contest the rape charge and ‘clear [his] name of the false allegations’ while in Australia. If cancelled, the Applicant will no longer hold a valid visa to lawfully remain in Australia, which may have a practical impact on his ability to defend himself, subject to any visa that he may be able to obtain for criminal justice purposes.

32. The Tribunal accepts that the Applicant would experience some hardship as a consequence of visa cancellation. The Tribunal weighs this hardship in the Applicant's favour. However, a subclass 485 visa is a temporary one that does not create an expectation of a permanent stay in Australia. Failing any further application by the Applicant to extend his stay in Australia, he was always going to return to Fiji once his subclass 485 visa expired on 2 April 2024. The Tribunal notes that the Applicant says he intends to apply to complete further study in Australia, but any expectation of a further visa being granted is speculative on his part.

33. Although the Tribunal weighs hardship in the Applicant's favour, the temporary nature of the Applicant’s current visa status slightly reduces this weight.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

34. Section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s 116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas for which the applicant may apply.

35. Consequently, s 48 limits what visa applications can be made by the Applicant whilst onshore. The Tribunal has taken that potential limitation on the Applicant's future application actions into account.

36. Public Interest Criterion (PIC) 4013(3) in the Regulations provides that a person is affected by a risk factor if a visa previously held by the person is cancelled because the Minister was satisfied that a ground mentioned in s 116(1)(e) applied to the person. In that event, PIC 4013 operates by mandating that a visa application made within three years of that person's visa being cancelled under s 116(1)(e) will be refused unless one of the stated exceptions apply.

37. The Tribunal has taken into account that potential restriction on the Applicant's future Australian visa applications and weighed the issue in his favour. The Tribunal does not have sufficient evidence before it to assess whether the Applicant is likely to avail himself of an exception to the PIC's operation such as compelling or compassionate circumstances justifying a further visa grant. Conversely, the Tribunal has taken into account the possibility that the Applicant will not be able to make out an exception to the PIC and also weighed that in his favour.

38. However, to be balanced against that is the plain intent of PIC 4013 to restrict future entry into Australia by people affected with the stated risk factors. That must also be considered in this review. The Applicant is facing a serious charge, arising out of his employment, of rape of a young child. Given the seriousness of the charge, the Tribunal does not consider the operation of PIC 4013 to be an unreasonable one in these circumstances. For this reason, the Tribunal weighs the overall impact of PIC 4013 only slightly in the Applicant’s favour.

    Whether there would be consequential cancellations under s.140

39. There would be no consequential cancellations under section 140 of the Act in the Applicant’s circumstances. Therefore, the Tribunal does not give this consideration any weight for or against cancellation.

    Whether any international obligations would be breached as a result of the cancellation

1. In considering whether to exercise its discretion to cancel the Applicant's visa, the PAM3 policy guidelines suggest that the Tribunal should assess whether Australia would be in breach of its international obligations, and to take Australia's international obligations into account. These include Australia's responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC). At common law, the best interests of the Australian children are also a relevant consideration in a review such as this one.

2. Article 3(1) of the CRC provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, or administrative and legislative bodies, the best interests of the child shall be the primary consideration. Article 5 requires state parties to respect the responsibilities, rights, and duties of the extended family in a manner consistent with the evolving capacities of a child. Article 9 provides that children shall not be separated from their parents against their will. Article 24 concerns the right of a child to enjoy the highest attainable standard of health.

3. In effect, those articles of the CRC provide that the Department (and the Tribunal) should consider the interests of children affected by their decisions.

4. There is no information before the Tribunal to indicate that the Applicant has any children residing in Australia. Therefore, the Tribunal finds that cancellation would not lead to a breach of Australia’s international obligations under the CRC in relation to observing the rights of a child in Australia.

   The Refugee Convention, ICCPR and CAT

5. The Applicant, a citizen of Fiji, has not applied for protection or raised any claims that he fears returning to his home country. The Tribunal is satisfied that cancellation would not potentially lead to the Applicant being removed in breach of Australia’s non-refoulement obligations under the Refugee Convention.

6. There is no information available to indicate that the Applicant’s political and civil rights would be affected if his visa was to be cancelled. The Tribunal is satisfied that the circumstances of this case would not lead to a breach of Australia’s obligations under the CAT or the ICCPR.

7. There is also no information available to the Tribunal to indicate that Australia has any other international obligations that may be impacted by the cancellation of the Applicant’s visa. In the absence of any information, the Tribunal gives this consideration limited weight in favour of cancellation.

   Any other relevant matters

8. The Applicant has engaged in community volunteer work, at the Salvation Army, and Neighbour’s Aid, in Nambour. This unpaid work is in addition to the Applicant assisting in his local community with various community-based activities. As this reflects positively on the Applicant’s willingness to participate in community life, the Tribunal places some weight on this as a factor against cancellation.

   Conclusion on discretion

9. 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

10. The Tribunal affirms the decision to cancel the Applicant’s Subclass 485 (Temporary Graduate) visa.

    Bridget Cullen
    Senior Member