Singh (Migration)

[2018] AATA 5238

Singh (Migration) [2018] AATA 5238 (26 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kamalpreet Singh

CASE NUMBER:  1727442

HOME AFFAIRS REFERENCE(S):           BCC2017/2635349

MEMBER:Michael Ison

DATE:26 November 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 26 November 2018 at 1:45pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – risk to safety of Australian community or individual – recklessly causing another harm – prospect of applicant being released into the community – genuineness of remorse – risk of reoffending – consideration of discretion – serious criminal offence of violence against another person – degree of hardship – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116

CASES
Gong v MIBP [2016] FCCA 561

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 31 October 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Student (Temporary)(Class TU)(Subclass 500) visa (Student visa) under s.116 of the Migration Act 1958 (the Act).

2. The applicant is Mr Kamalpreet Singh, a 23 year old Indian national.

3. The delegate cancelled Mr Singh’s Student visa under s.116(1)(e)(ii) of the Act for the following reasons:

   I consider that the seriousness of the charge against the visa holder, that he has allegedly recklessly caused harm to another person, indicates his continued presence in Australia may present a risk to the safety of the individual named as the victim.   …

   After considering all the available information, I am satisfied that the grounds for cancelling the visa outweigh the reasons not to cancel the visa. I have therefore decided to cancel the visa holder’s visa.[1]

   [1] Record of Decision dated 31 October 2017, Tribunal file, folios 1 to 6 at pages 1 and 6.

4. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. Mr Singh’s application for review was listed for hearing on 9 February 2018. Mr Singh requested an adjournment of this hearing which was granted by the Tribunal. Mr Singh was imprisoned as a result of his criminal prosecution on 7 February 2018.

6. Mr Singh appeared before the Tribunal by video conference on 14 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence over the telephone from Mr Singh’s cousin, Ms Jaswinder Kaur and her husband Mr Charanjit Singh who Mr Singh lives with in Australia. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

7. To distinguish between the two Mr Singh’s, in the balance of this decision the applicant is referred to as Mr Singh and the witness is referred to as Mr C Singh.

8. In addition to their oral evidence, Mr Singh provided the Tribunal with a written statement dated 6 November 2018 and Ms Kaur and Mr C Singh both provided statutory declarations declared on 31 October 2018.

9. Mr Singh provided the Tribunal with a copy of the following documents prior to the hearing:

   ·The delegate’s decision to cancel Mr Singh’s visa;

   ·A certificate of record from the Magistrates Court of South Australia showing the progress and outcome of his criminal prosecution from 24 July 2017 to 7 February 2018;

   ·The sentencing remarks of His Honour, Judge Hribal, Chief Magistrate of South Australia, from the criminal case against Mr Singh dated 7 February 2018; and

   ·Mr Singh’s case notes from his imprisonment for the period 7 February 2018 to 27 April 2018.

10. Mr Singh was represented in relation to the review by his lawyer and registered migration agent, Mr Mitchell Simmons of MSM Legal. Mr Simmons participated in the Tribunal hearing by telephone.

11. Ms Jane McGrath of MSM Legal Pty Ltd was appointed as Mr Singh’s lawyer and migration agent on 23 August 2018. On 2 November 2018 Mr Simmons was appointed as Mr Singh’s lawyer and migration agent. Prior to Ms McGrath’s appointment Mr Singh was represented by Mr Chetan Kanna of 1World Migration Consultants.

12. On 7 November 2018 Mr Simmons provided a 10 page submission to the Tribunal on behalf of Mr Singh. There were also 10 documents attached to this submission including the statement and declarations referred to above and six letters of support for Mr Singh.

13. On 15 November 2018, after the hearing, Mr Simmons provided a further five page submission to the Tribunal on behalf of Mr Singh.

14. The Tribunal found the submissions provided by Mr Simmons assisted the Tribunal in considering Mr Singh’s circumstances and the issues before the Tribunal.  

15. The Tribunal also summonsed the criminal brief from the South Australia police (SAPOL) prior to the hearing.

16. A copy of the 254 page criminal brief, with the redaction of third party personal information by SAPOL, was provided to Mr Singh’s representative under s.362A of the Act.

17. The Tribunal distilled the information from the SAPOL criminal brief and from the Department file that was potentially adverse to Mr Singh’s application before the Tribunal. The Tribunal sent Mr Singh, via his representatives, a letter under s.359A of the Act on 24 October 2018 identifying 34 items of potentially adverse information. The Tribunal’s letter to Mr Singh included a copy of each document that contained the potentially adverse information, particularised the specific information that was potentially adverse, explained the relevance of each item of information to Mr Singh’s review and also set out the consequence for Mr Singh of the Tribunal relying on each item of information, including that each item of information would be the reason, or a part of the reason, for the Tribunal to affirm the decision under review.

18. Mr Simmons’ submission dated 7 November 2018 included Mr Singh’s response to the Tribunal’s 359A letter.

19. The Department also issued certificates under s.375A of the Act on 24 November 2017, 31 January and 24 September 2018 in relation to emails between SAPOL and the Department certifying that it would be contrary to the public interest for the Tribunal to disclose the SAPOL emails in the email chains because those emails were provided in confidence and SAPOL had not consented to the disclosure of that information. The 31 January 2018 certificate was stated by the Department to replace the 24 November 2017 certificate.

20. The Tribunal provided Mr Singh with a copy of the certificates but did not require Mr Singh to comment on the certificates as the Tribunal was not satisfied the certificates adequately demonstrated that providing the information to Mr Singh would be contrary to the public interest given those emails disclosed little more than the sharing of information between SAPOL on the criminal process and the Department, in a context of most of the information being publically available.

21. Mr Singh applied under s.362A for a full copy of the Tribunal’s file and the Tribunal’s copy of the Department file. Access was granted in full on 16 October 2018, including the information in the emails subject to the certificates, save for the redaction of irrelevant and third party personal affairs information SAPOL had made to its criminal brief. SAPOL provided a copy of its criminal brief without redactions for the Tribunal’s use only. The Tribunal checked the redactions against that clean copy to ensure the redactions to the copy provided to Mr Singh were of irrelevant and third party personal affairs information only. In its letter releasing the information under s.362A to Mr Singh the Tribunal provided a detailed table explaining to Mr Singh and his representatives what type of information had been redacted from each document and invited Mr Singh to contact the Tribunal if he was dissatisfied with any aspect of the Tribunal’s s.362A decision. Mr Singh did not express any concern or dissatisfaction with the Tribunal’s s.362A decision to the Tribunal.

    Background

22. Mr Singh came to Australia on 16 July 2016 having been granted a Visitor (Subclass 600) visa in June 2016 that was valid to 16 October 2016.

23. On 13 October 2016 Mr Singh applied for a Student (Subclass 500) visa which was granted on 20 October 2016 and was valid until 31 October 2018.

24. Mr Singh’s evidence is that he has completed a Certificate III in Commercial Cookery and was enrolled to study a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management at Durban International College.[2]

    [2] Department file, folio 66.

25. On 21 July 2018 Mr Singh was attending a child’s two year old birthday party at a restaurant in Adelaide with a large number of other people.

26. Mr Singh became involved in an argument and from a distance of approximately two metres threw a dinner plate which struck the victim’s face causing the victim very serious injuries.

27. Mr Singh was arrested by SAPOL that night and was remanded in custody.

28. Mr Singh applied for and was granted bail on 24 July 2017.

29. Mr Singh’s Student visa was cancelled on 31 October 2017 following the usual Notice of Intention to Consider Cancellation of a visa (NOICC) process.

30. Mr Singh was detained and placed in immigration detention on 2 November 2017.

31. Mr Singh pleaded guilty to a single charge of recklessly causing another harm contrary to s.24(2) of the Criminal Law Consolidation Act 1935 (SA), the maximum penalty for which is five years imprisonment.

32. On 7 February 2018 Mr Singh was convicted and sentenced to 284 days imprisonment by the Chief Magistrate of South Australia, His Honour, Judge Hribal. His Honour initially sentenced Mr Singh to 18 months imprisonment but discounted that sentence by 30% in recognition of Mr Singh’s guilty plea and also discounted that sentence by 99 days being the amount of time Mr Singh had spent on remand and at that time in immigration detention.

33. His Honour’s sentencing remarks were provided to the Tribunal by Mr Singh.[3] His Honour’s remarks record that as a result of Mr Singh’s action the victim suffered a left lateral orbital wall fracture and full thickness laceration over his forehead, eyebrow, down the side of his face and across his ear which required hospitalisation, surgery, the insertion of a metal plate and extensive sutures and follow up treatment.

    [3] Remarks on Penalty of Judge Hribal, Chief Magistrate of South Australia, Tribunal file, folios 99 and 100.

34. His Honour also noted the medical evidence at the time of sentencing was the victim will have permanent visible scarring over his face and in particular his eyebrow. 

35. His Honour also referred to the victim’s Victim Impact Statement in his sentencing remarks and notes that the victim stated his eyesight has been affected and he requires glasses, he has lost some sensation in his face, has pain in his jaw, is embarrassed and stressed by the scarring and fears for his future marriage prospects, could not work for approximately 6 weeks after the incident and has found it difficult since the incident to go out without being fearful and also difficult to concentrate on his studies.

36. The information in his Honour’s sentencing remarks is not contested by Mr Singh although Mr Simmons did submit on Mr Singh’s behalf:

    It is also important to note that Mr Singh disputed a number of factual allegations made against him when he was initially charged with the offence. Mr Singh was advised by his criminal lawyer at the time to let these issues transpire before deciding to plead guilty, in order for there to be a level of agreement to the facts in (sic) which he would be pleading guilty. These facts are what would consequently have an impact on his sentence. This is a common practice in the area of criminal law.[4]

    [4] MSM Legal Pty Ltd submission dated 7 November 2018 at page 8, Tribunal file, folio 454 (back).

37. This submission was provided as part of a broader submission from Mr Simmons explaining why Mr Singh initially denied his involvement in the incident to SAPOL and then pleaded guilty six months after the incident.

38. It is not the Tribunal’s role to conduct a quasi-criminal trial or to go behind the sentencing remarks of his Honour.  The Tribunal accepts his Honour’s remarks as a definitive statement of the circumstances of Mr Singh’s offending relevant to His Honour’s sentencing and the considerations his Honour took into account in arriving at Mr Singh’s sentence.

39. Mr Singh was due to be released from prison on 17 November 2018. At the hearing Mr Singh told the Tribunal he will be released from prison on Friday 16 November 2018 but will be transferred to immigration detention. The Tribunal accepts this evidence.

40. The Department emailed the Tribunal on 16 November 2018 to confirm that Mr Singh has been detained in immigration detention.

41. For the following reasons, the Tribunal has concluded that the decision to cancel Mr Singh’s visa should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

42. 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?

    s.116(1)(e) - risk to Australian community or individual

43. Section 116(1) of the Act provides:

    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.

44. For a visa to be cancelled under s.116(1)(e) 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].

45. As noted above, Mr Singh’s visa was cancelled under s.116(1)(e)(ii) as the delegate found that Mr Singh remained a risk to the safety of the victim.

46. The Tribunal notes that at the time of the delegate’s decision to cancel Mr Singh’s Student visa Mr Singh was on bail and living in the community with Ms Kaur and her family.

    Determinative issues

47. In its letter to Mr Singh under s.359A the Tribunal explained that the potentially adverse information it had identified was relevant to Mr Singh’s review before the Tribunal because:

    The police brief confirms you pleaded guilty to an offence of recklessly causing another harm … and have been convicted of that charge and sentenced to imprisonment such that you have acknowledged that you committed that criminal offence which could lead the Tribunal to the view that the threshold criteria that your presence 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 has been satisfied.[5]

    [5] Tribunal letter under s.359A of the Act to Mr Singh dated 24 October 2018, Tribunal file, folios 285 to 403 at folio 402.

48. In his response to the Tribunal’s letter on Mr Singh’s behalf, Mr Simmons made the following submissions:

    We acknowledge that whilst it is not open to the Tribunal on review to consider whether a visa might have been cancelled under a different power, there is authority for the proposition that the Tribunal is not bound by the grounds for cancellation relied on by the delegate [footnote omitted]. However, we note that if different grounds are to be relied on, then relevant procedural fairness requirements mandate that these grounds must be put to the applicant for comment.

    The invitation to comment issued on 24 October 2018 does not directly address this issue. However at item 1 of the table included in this notice, it is provided [Mr Simmons reproduced the quote above].

    This suggests that the Tribunal may wish to consider the relevance of the evidence to the ground under s 116(1)(e)(i). However, we contended that this is insufficient notice as the framework requires the specific risk to be clearly articulated to the applicant so that he can adequately respond.[6]

    [6] MSM Legal Pty Ltd submission dated 7 November 2018 at pages 2 and 3, Tribunal file, folios 456 and 457 (back).

49. The Tribunal acknowledged this submission at the hearing and explained in detail to Mr Singh that the determinative issue:

    ·for the delegate when the delegate cancelled his visa on 31 October 2017 was whether Mr Singh was or may be a risk to the safety of an individual, being the victim of his (at the time, alleged) offending under s.116(1)(e)(ii);

    ·for the Tribunal at the hearing is whether Mr Singh is or may be a risk to the safety of an individual, being the victim of his offending under s.116(1)(e)(ii) or whether Mr Singh is or may be a risk to the safety of the Australian community or a segment of the Australian community under s.116(1)(e)(i).

50. The Tribunal explained to Mr Singh the relevance and potential consequence of the Tribunal considering the additional ground for cancellation under s.116(1)(e)(i), as well as the ground under s.116(1)(e)(ii), to Mr Singh’s review.

51. The Tribunal clarified for Mr Singh that it did not consider three of the potential grounds for the cancellation of his visa under s.116(1)(e) applied in his circumstances. The Tribunal explained to Mr Singh that it did not consider whether he actually or potentially may be a risk to the health or to the good order of the Australian community or a segment of the Australian community or whether he actually or potentially may be a risk to the health of an individual to be engaged or enlivened by the circumstances of his application for review.

52. In short, the Tribunal explained, the threshold issue for determination by the Tribunal was whether Mr Singh’s presence in Australia is or may be a risk to the safety of the Australian community or a segment of the Australian community under s.116(1)(e)(i) or to the safety of an individual or individuals under s.116(1)(e)(ii).

53. The Tribunal invited Mr Singh, or Mr Simmons on his behalf, to apply for an adjournment of the hearing if either felt they had not had sufficient notice of the determinative issues before the Tribunal or adequate time to consider, prepare for or to respond to those issues.

54. When asked by the Tribunal, Mr Simmons acknowledged that the determinative issues before the Tribunal arising from Mr Singh’s application for review had been clearly explained to Mr Singh. Mr Simmons did not request an adjournment of the hearing.

55. When asked by the Tribunal whether he understood the determinative issues before the Tribunal now included a ground under s.116(1)(e)(i) and not just s.116(1)(e)(ii) as assessed by the delegate at the time of the cancellation of his Student visa, Mr Singh acknowledged that he did. Mr Singh did not request an adjournment of the hearing.

56. In his submissions to the Tribunal dated 7 November 2018 Mr Simmons submitted that when the Tribunal is considering the threshold issue of whether the ground for cancellation of Mr Singh’s visa is made out under either s.116(1)(e)(i) or s.116(1)(e)(ii) the Tribunal must assess the circumstances existing before it at the time of its decision rather than at the time of the delegate’s decision.[7]

    [7] MSM Legal Pty Ltd submission dated 7 November 2018 at pages 3 and 4, Tribunal file, folio 456.

57. Mr Simmons also submitted in those submissions:

    … if a cancellation decision is affirmed on review, the original decision continues to operate from the date it was made. If the Tribunal sets aside the original decision and substitutes a new decision, the new decision ‘operates prospectively in the absence of the exercise of any power to back date the decision’ [reference omitted]. There is no power in the Act or the Regulations to back-date the review decision. Thus, a visa that has expired or has ceased by the time of the review decision will not be revived or reinstated if the decision is set aside. It is therefore those matters that impact the visa holder as a result of the cancellation, or the continuing effect of the cancellation, that will be relevant in assessing how the discretion is to be exercised.[8]

    [8] Op.cit. at page 4, Tribunal file, folio 456 (back).

1. The Tribunal accepts these submissions.

2. The Tribunal raised and discussed with Mr Simmons during the hearing the issue of whether s.116(1)(e) requires the Tribunal to consider the future risk that Mr Singh may pose in the event that Mr Singh was living in the community in Australia in the foreseeable future as this issue had not, in the Tribunal’s view, been addressed in Mr Simmons’ written or oral submissions to the Tribunal.

3. Mr Simmons confirmed his oral submissions during the hearing in the following terms after the hearing:

   We accept that the assessment of s116(1)(e) plainly the requires an assessment of future risk as the power is enlivened if the decision maker is satisfied the holder ‘may be’ a risk. You have indicated that you may take the view that this extends to an assessment as to the future risk if Mr Singh would be released into the community from immigration detention or prison. We submit that the circumstances of this case show that this interpretation cannot be intended, and that the object of the power is satisfied through the assessment of ‘future risk’ being limited to what may occur during the visa period including any period after the visa expires up until the applicant either departs Australia or a decision is made on another visa application.[9]

   [9] MSM Legal Pty Ltd submission dated 15 November 2018 at page 1, Tribunal file, folio 472.

4. The Tribunal accepts that the assessment of future risk in the context if s.116(1)(e) is limited to the risk up until the applicant departs Australia. The Tribunal does not accept that the future risk is limited to until a decision is made on another visa, as the words of s.116(1)(e) “the presence of its holder in Australia” are plain and straightforward and do not invite any such restriction.

5. Mr Simmons’ submission then continued:

   As set out in the previous submission [dated 7 November 2018], we reiterate that Mr Singh can simply not be released from detention or prison without a further bridging or substantive visa being applied for and granted. The s501 character test is applicable to all substantive visa applications and so in granting any future visa, the decision maker will have been required to consider Mr Singh’s conviction history and relevant conduct, and come to the conclusion that he does not pose an intolerable risk to the community. We acknowledge that s116 is only relevant to cancellation rather than visa refusal, and that the s501 ‘character test’ imposes a higher threshold than the s116(1)(e) test. However, we submit that the Australian parliament has shown a clear willingness and enthusiasm to strengthen the relevant character provisions, and so it can be inferred that there is no intention for the lower threshold to apply to the consideration of visa applications. We also reiterate that it is our experience that the Department will move to immediately cancel visa grants under s116 in situations where deemed necessary.

   The only way in which Mr Singh will be released into the community is if the Department makes a decision to grant a new visa and, in doing so, makes a decision that he is not a risk to the community and that his release is not contrary to community expectations or the public interest. We therefore respectfully submit that it is paradoxical for the Tribunal to be concerned with the risk of an eventuality that can only possibly occur if the Department determines that the risk is acceptable – a finding by the Tribunal that such a risk exists would in effect be a finding that the future finding of the Department is incorrect.[10]

   [10] Op. cit. at p.2, Tribunal file, folio 457 (back).

6. The Tribunal does not accept Mr Simmons’ submission about the paradox of future risk in the second paragraph above. If decision makers are applying the same law at different points of time, then depending on the amount of time between those decisions almost inevitably the circumstances of the applicant will have changed. This means it is possible, depending on the materiality of the change in circumstances, that a finding of risk at one point in time and later finding of lesser or no risk does not make either finding necessarily incorrect.

7. In his submission to the Tribunal dated 7 November 2018 Mr Simmons set out in detail the inter-operation of some provisions of the migration law and concluded:

   There is simply no way in which Mr Singh will be released from prison or detention without his character and risk being considered by the Department of Home Affairs in granting him another visa.[11]

   [11] MSM Legal Pty Ltd submission dated 7 November 2018 at page 7, Tribunal file, folio 454.

8. The Tribunal does not accept Mr Simmons’ conclusion as it is speculative and assumes what the Minister or a delegate may do in the future. This is not to say that the submission is unreasonable given current Departmental practice.

9. However, the Tribunal does accept that in Mr Singh’s present circumstances it is unlikely, perhaps even improbable, given the operation of the migration law and in particular sections 116(1)(e) (cancellation), 195 (restriction on future visa applications for detainees), Items 1301(3)(f) and 1303(3)(e) of Schedule 1 to the Regulations (restriction on applying for a Bridging A or C visa) and cl.050.223 of Schedule 2 to the Regulations (primary criteria for the granting of a Bridging E visa being complying with visa conditions) that Mr Singh would be released from immigration detention without his character or risk to the community being considered, even if the Tribunal set aside the cancellation of his Student visa.

10. However, in the Tribunal’s view this outcome is not certain even now that Mr Singh has been detained. There are potentially a number of other visas that Mr Singh could apply for, including in both his present circumstances and if not in his present circumstances then in reasonably foreseeable future circumstances.

11. Mr Simmons submitted on Mr Singh’s behalf that these circumstances are relevant to determining to whom Mr Singh may be a risk, particularly when assessing future risk. The Tribunal accepts this submission. The consequences of this finding are addressed below.

    Whether Mr Singh’s presence in Australia is or may be a risk to the safety of an individual or individuals under s.116(1)(e)(ii)

12. In his submissions to the Tribunal dated 7 November 2018 Mr Simmons submitted:

    Mr Singh will not be released from prison until 17 November 2018. If Mr Singh does not hold a visa at the time of his release from prison, he will be transferred directly to immigration detention.

    If the decision is set aside is made before that date and Mr Singh lodges a Student visa prior to release, he will be ineligible for an associated BVA or BVC. Item 1301(3)(f) and 1303(3)(e) respectively provide that a person who is in immigration detention or criminal detention cannot make a valid application for a BVA or BVC. There is therefore no prospect that Mr Singh will be automatically granted a Bridging visa that allows him to be released from prison or immigration detention into the community.[12]

    [12] Op.cit. at pages 6 and 7, Tribunal file, folios 454 and 455 (back).

13. The Tribunal does not accept Mr Simmons’ conclusion as it is speculative and assumes what the Minister or a delegate may do in the future.

14. Mr Simmons submitted that given the above:

    Mr Singh cannot pose any risk to the alleged victim as he will be detained in prison or immigration detention at all relevant times. The only way he would have access to the victim is if the victim were for to some reason (sic) visit the prison or detention centre and we contended that there is no evidence to suggest that this would occur, and even if it did, Mr Singh would be a detainee and therefore be inherently restrained from causing harm.[13]

    [13] Op.cit. at page 7, Tribunal file, folio 454.

15. The Tribunal does not accept this submission and finds that in Mr Singh’s present circumstances if he was living in the community and came into contact with the victim, for the reasons outlined below, the Tribunal remains concerned that Mr Singh may be some risk to the safety of the victim.

16. The Tribunal notes that the victim and Mr Singh have common friends or acquaintances, sufficient that they both ended up attending the same birthday party.

17. There is information on the SAPOL criminal brief, including in witness statements, that friends or associates of Mr Singh attended the hospital when the victim was taken to hospital and are alleged to have threatened at least one witness at the hospital for involving the police rather than allowing the matter to be settled privately. Information on the SAPOL criminal brief indicates these matters were the subject of SAPOL inquiry at the time of the investigation into Mr Singh but there is no information before the Tribunal that this separate investigation is ongoing.

18. There is no evidence before the Tribunal that Mr Singh had any involvement in or instigated or endorsed the actions of his friends or associates at the hospital. There is no information before the Tribunal to indicate that Mr Singh would seek to use the common acquaintances he has with the victim to locate the victim and directly harm the victim or use friends or associates to harm the victim.

19. In his evidence to the Tribunal Mr Singh said was that he was sorry for the hurt that he has caused to the victim, he has apologised to the victim through a letter he wrote to the Chief Magistrate at the time of his sentencing and he has learned his lesson from his time in prison where he has devoted a lot of time to religious study and will not lose his temper or hurt anyone ever again.

20. Mr Singh also told the Tribunal that if he was ever to see the victim again he would apologise to him in person from the heart and hopes the victim would forgive him. His evidence is that he does not present any risk to the victim in future given his remorse and reflection in prison.

21. The Tribunal did not find Mr Singh’s evidence of having taken full responsibility for his assault upon the victim very convincing.

22. The Tribunal discussed with Mr Singh the 21 July 2017 incident at some length during the hearing.

23. In his written statement to the Tribunal dated 6 November 2018 Mr Singh stated:

    22. I am so sorry for what I have done and for the harm I caused to the victim. I am embarrassed, ashamed, and upset, about my actions. I know that what I did was completely wrong.

    25. I have lost a whole year of my life because of my stupid mistake. I never want to come back to prison and I never will.

    26. I want to savour every minute of life when I release. This was the last mistake I will ever make in my life. This was a one-off incident which I deeply regret. Allowing myself to get so angry at another person and to act the way that I did was my last mistake. I will never do anything like this again.[14]

    [14] Mr Singh’s statement dated 6 November 2018 at pages 2 and 3, Tribunal file, folios 451 to 452.

24. The Tribunal read these paragraphs to Mr Singh, as he did not have a copy of his statement with him during the hearing.

25. Mr Singh’s evidence is that he made a mistake on 21 July 2017 and he has learned from that mistake and will not repeat it. Mr Singh says he feels he has brought shame to his family and is sorry for hurting the victim and sorry for the emotional hurt he has caused to his family. He told the Tribunal he cannot afford another similar mistake and he has learned from his religion to love not to hate. Mr Singh told the Tribunal he prays each day and mentions the victim and Mr Singh’s family in those prayers.

26. As evidence of his insight into his offending, Mr Singh told the Tribunal he had been subject to racism from other prisoners inside prison. Mr Singh said as he is aware he cannot afford any further issues he did not react or respond to such taunts, but just walked away each time.

27. In his statement Mr Singh also stated:

    24. I am extremely ashamed of myself and my behaviour. I have brought great shame on my parents and other family members as well. This is particularly difficult for me to deal with. I know that my parents are very disappointed in me and how I have brought shame upon them. My actions have brought hard times to me and my family, our reputation in the community (in India and Australia) is not like it was before. I feel very sorry for my parents.[15]

    [15] Op. cit. at page 3, Tribunal file, folio 451.

28. The Tribunal asked Mr Singh about the specific circumstances of his offending, including whether he felt his actions were provoked given the statutory declaration of Mr C Singh, referred to below, that he was provoked. Mr Singh told the Tribunal that the fighting was not started by him and that there were two people, including the victim, who were abusing him and his family. He said he threw the plate from a distance of three to five metres only to try and keep the victim away from him as he thought the victim and his friend were going to beat him.

29. Mr Singh told the Tribunal his plate hit the victim in the face but that the victim’s friend subsequently threw a plate at Mr Singh which only hit him in the knee. He said his throwing of the plate was a mistake and he is not violent or a criminal.

30. Mr Singh told the Tribunal he had not lost his temper like that before or since and it was bad luck for both the victim and Mr Singh that it occurred and the loss of his temper was an accident for Mr Singh for which he has apologised.

31. The Tribunal generally accepts Mr Singh’s evidence above save for his explanation of the circumstances of his offending. The Chief Magistrate’s sentencing remarks record that Mr Singh was “standing approximately two metres” from the victim and by his guilty plea Mr Singh had acknowledged his conduct could result in harm and despite knowing that risk Mr Singh acted recklessly and caused the victim harm “without adequate justification”.[16]

    [16] Remarks on Penalty of Judge Hribal, Chief Magistrate of South Australia at paragraphs 2 and 10, Tribunal file, folios 99 and 100.

32. The Chief Magistrate did not record that there were any circumstances of provocation. His Honour found that Mr Singh’s personal circumstances of having no prior convictions, his counsel asserting he had made a drunken and foolish mistake, his remorse, his strong ties to the community, the risk of deportation, a conviction making things difficult for him in the community and for obtaining work were all outweighed by the seriousness of Mr Singh’s offending leading his Honour to record a conviction and impose an immediate custodial, rather than suspended, sentence.[17]

    [17] Op. cit.

33. Mr Singh also seemed to attach considerable importance in his evidence to the fact that a plate was thrown at him in the incident. Mr Singh referred to this at least three times in this part of his oral evidence and the importance he attached to it seemed to include the fact that the plate he threw caused serious injury but the plate that was thrown at and hit him caused none. The Tribunal accepts that a plate was thrown at and hit Mr Singh but on the evidence before the Tribunal this occurred after Mr Singh had thrown the plate at, and seriously injured, the victim. The plate being thrown at and hitting Mr Singh does not explain or excuse why Mr Singh first acted in the manner he did.

34. The Tribunal finds that Mr Singh acted recklessly in throwing a plate at the victim causing the victim serious injuries with lifelong scarring and other consequences for the victim without justification or provocation, which amounted to a serious crime of violence against the victim.

35. The Tribunal was not convinced from the evidence before the Tribunal, particularly Mr Singh’s oral evidence, that Mr Singh takes full responsibility for his actions. The Tribunal notes Mr Singh’s evidence of referring to:

    ·the victim and his friend as saying bad things about him and his family as a pre-cursor to his offending;

    ·his actions as an act of, in the Tribunal’s words, self-defence in that Mr Singh described his action of throwing the plate as trying to keep the victim away from him as he thought the victim and his friend were going to beat him;

    ·a plate also being thrown at him but only hitting him in the knee;

    ·his actions as bad luck for him and the victim;

    ·his loss of temper at the time he threw the plate as an accident;

    ·a plate also being thrown at and hitting him, even though this occurred immediately after he had first thrown a plate at, and seriously injured, the victim.

36. His Honour Judge Hribal in his sentencing remarks also stated:

    On this particular night you consumed alcohol. A letter was read to the court today that expressed your embarrassment and remorse a result of the incident. You apologise to the victim and community and say that you will not drink again. I am told by your counsel that you are contrite and remorseful and recognise that you have brought shame on to your parents. You are concerned about being deported as this will impact on your family who are subsidising your study in Australia. References have been tended from your community. They indicate that you are a good man and have volunteered within the community and mention your remorse.[18]

    [18] Remarks on Penalty of Judge Hribal, Chief Magistrate of South Australia at paragraph 7, Tribunal file, folio 99.

37. Mr Singh’s evidence is that he has not apologised personally to the victim. He has apologised to the victim through a letter to the court.

38. Mr Singh told the Tribunal that he had read the victim’s detailed Victim Impact Statement. In that statement the victim set out some of the financial costs and losses he had incurred or suffered as a result of Mr Singh’s actions.[19]

39. The Tribunal asked Mr Singh if he had offered or tried to arrange any compensation or other reparation for the victim. Mr Singh replied he cannot afford to do so as a Student studying in Australia and he cannot ask his family as they cannot afford to help the victim financially.

40. The Tribunal recognises that Mr Singh was imprisoned between 7 February 2018 and 16 November 2018 and is now detained in immigration detention, limiting his ability to earn money to compensate the victim.

41. Of concern to the Tribunal was that in his evidence, when given the opportunity to do so, Mr Singh did not express any past, present or future intention to assist the victim other than he would like to apologise to the victim from his heart. There is no legal requirement for Mr Singh to apologise or to offer reparation to the victim. What the Tribunal was trying to assess was the genuineness of Mr Singh’s remorse toward the victim for his actions as an indicator that Mr Singh had gained insight into the circumstances and causes of his offending. Genuine remorse toward the victim would have been a powerful indicator for the Tribunal that Mr Singh had reflected not just on the consequences of his actions for the victim, his own family and himself but also the causes of how he came to be in the situation he found himself in and when he was in that situation what caused him to react the way he did.

42. Mr Singh’s evidence in this discussion with the Tribunal added to the Tribunal’s concern about the genuineness of Mr Singh taking responsibility for his actions because it was not apparent to the Tribunal that Mr Singh understands or accepts either how he came to be in the circumstances he found himself or why he then reacted the way he did. To make this point even clearer, the Tribunal accepts that Mr Singh is genuinely remorseful for the injuries caused to the victim and the shame, embarrassment, loss of reputation, considerable financial cost and personal losses his extended family and he have suffered. In short, the Tribunal found Mr Singh genuinely remorseful about the consequences of his actions but the Tribunal did not find Mr Singh accepts unconditional responsibility for his actions.

    [19] Victim Impact Statement, Tribunal folios 229 to 231 at folio 229.

100.   In his statement to the Tribunal Mr Singh stated:

32. I tried to enroll in anger management courses at Mobilong [prison] but for some reason they would not let me, I’m not sure why. I have therefore mainly relied upon religion to help me with my anger management. I think it has been very effective. Every day I spend at least 10 minutes sitting on my bed reflecting my past actions and the hurt it has caused others.

33. I have found that religion has brought me a lot of peace and I have discovered a lot about myself since coming to prison.[20]

[20] Mr Singh’s statement dated 6 November 2018 at page 4, Tribunal file, folio 451.

101.   The Tribunal discussed this aspect of Mr Singh’s statement in detail with him. The Tribunal asked Mr Singh why he tried to enrol in an anger management course. Mr Singh replied that he was already a calm person but a lot of people in prison were doing anger management courses and he thought such a course may teach him more things. He told the Tribunal the prison said he could not enrol because his sentence finished in November and the courses were already fully booked until after then.

102.   The Tribunal asked Mr Singh whether he considered himself to have had anger management issues in the past. Mr Singh replied no and that he never lost control of his emotions before, has no problem with anger and has been a calm person since childhood.

103.   The Tribunal asked Mr Singh whether he had ever lost his temper before. Mr Singh replied not like he did when he threw the plate and that his loss of temper on that occasion was bad luck for the victim and for Mr Singh, it was an accident for Mr Singh and he has apologised for that.

104.   The Tribunal asked Mr Singh whether he would access anger management training in immigration detention if it is available. Mr Singh replied that he has already learned to remain calm but if he can learn more then he would seek to do so either in detention or in the community if he was released from detention.

105.   The Tribunal discussed with Mr Singh the role of alcohol on the night of his offending. Mr Singh said he had drunk the equivalent of only two or three standard drinks that night and had never been drunk in his life. He thought alcohol maybe played a role but it did not appear to the Tribunal that Mr Singh thought it was a significant factor in his offending.

106.   Mr Singh’s evidence in relation to the role of alcohol in his offending was of concern to the Tribunal as it contrasted to the sentencing remarks of His Honour noted above where it is clear that part of Mr Singh’s guilty plea was he was drunk at the time of offending and included a written commitment from Mr Singh to the court not to drink again. This also contrasts to the evidence below of Mr C Singh who thought Mr Singh may have been drunk at the time of his offending, although the Tribunal accepts that Mr C Singh was not definitive in his evidence in this respect.

107.   Mr Singh’s evidence of what caused him to throw the plate, about his lack of anger management issues and apparent view that his having consumed alcohol was not significant collectively indicates to the Tribunal that whilst Mr Singh is remorseful for the consequences of his action for the victim, for his family and for himself and is aware it is something he must not allow to be repeated if he wishes to avoid jail in future, he has not gained insight into why he found himself in the circumstances he did and then what caused him to act the way he did and in that sense he has not fully accepted personal responsibility for his actions.

108.   From Mr Singh’s evidence it appeared to the Tribunal that Mr Singh’s remorse was driven more by the shame he believes he has caused his family and himself, by the significant personal loss he has suffered by having to spend 284 days in prison and by the hardship he has brought himself and his family in placing his right to be in Australia at risk.

109.   These findings cause the Tribunal concern that there remains a risk that Mr Singh could lose his temper and act recklessly in the future, with a risk of harm to the victim, particularly if they met in a similar social situation.

110.   This is of concern to the Tribunal because in the view of the Tribunal if Mr Singh is to avoid a repeat of his behaviour he needs to understand why he found himself in the circumstances that led to his offending and why he then acted the way he did in throwing the plate. At the time of his sentencing this seemed to include an acknowledgement that he was affected by alcohol at the time, to the point of being drunk according to his own counsel, leading to a written commitment to the court to not drink again. In his evidence at the hearing Mr Singh denied ever having been drunk and only acknowledged that his consumption of alcohol may have played a role. This caused the Tribunal to form the view that Mr Singh now does not believe his consumption of alcohol was a significant factor in his offending.

111.   The Tribunal is also concerned that Mr Singh has not been able to access any courses or services that would provide professional insight into his offending and how to avoid it being repeated in the future. The Tribunal accepts Mr Singh’s evidence that he genuinely tried to access such services but his inability to do so to date is relevant to the Tribunal’s assessment of risk.

112.   Ms Kaur gave character evidence that she has known Mr Singh since his birth as their families shared a house in India. Ms Kaur is 12 years older than Mr Singh. Ms Kaur’s evidence in her statutory declaration and to the Tribunal was that Mr Singh lived with Ms Kaur and her family since arriving in Australia and although she is his cousin, she considers and treats Mr Singh like a son. Ms Kaur’s evidence is she has never seen him lose his temper and considers him a kind, respectful and polite person who helps her with her children, supports her and her husband emotionally and who she describes as her best friend.

113.   Ms Kaur’s evidence is that in her view Mr Singh will not harm the victim or anyone else in the community because he has learned his lesson and she believes Mr Singh will never commit another crime. She confirmed that Mr Singh will live with Ms Kaur and her family if he is released and in her view he should be given the opportunity to complete the study he has commenced in Australia.

114.   Ms Kaur’s evidence is that she and her husband have supported Mr Singh, including financially, and by visiting him regularly in prison where she says his outlook is good. Ms Kaur also says that Mr Singh has not fought with anyone, including officers or fellow inmates in prison and has built a good rapport with a lot of people in prison by trying to see it as a community, rather than a bad environment.

115.   The Tribunal accepts the evidence of Ms Kaur that in her long term experience of knowing and living with Mr Singh she believes him to be a person of good character and does not believe he is a risk to the safety of anyone in Australia.

116.   Mr C Singh also gave character evidence about Mr Singh. Mr C Singh stated that he had known Mr Singh for six years from his engagement in India in 2011 but acknowledged he had lived in Australia since 2008 whilst Mr Singh lived in India and New Zealand. In discussion with the Tribunal about this Mr C Singh agreed that he had only really got to know Mr Singh when Mr Singh came to Australia in July 2016.

117.   In his statutory declaration Mr C Singh declared:

18. [Mr Singh] is not a criminal, his behaviour was provoked. It was the first and last mistake of his life. He has truly learnt his lesson.[21]

[21] Statutory declaration of Mr C Singh dated 31 October 2018, Tribunal file, folio 448 (back).

118.   The Tribunal asked Mr C Singh what he meant by Mr Singh’s behaviour was provoked. Mr C Singh responded that his understanding is there was an argument that led to Mr Singh throwing the plate but through his time in prison and studying religious books Mr Singh has learned his lesson and has missed so much whilst in jail and is so ashamed to be in jail that his behaviour and attitude have changed. Mr C Singh’s evidence is that Mr Singh is a religious person who believes in karma and he is safe to be within the Australian community. Mr C Singh stated that if Mr Singh is released he will live with Mr C Singh and his family and will be supported with his studies and financially as part of the family.

119.   Mr C Singh said he was at the party on the night Mr Singh threw the plate but told the Tribunal he did not see Mr Singh throw the plate. Mr C Singh told the Tribunal he thought Mr Singh might have been drunk at the time of the incident as he had been drinking with his friends, but he had not seen Mr Singh drunk ever before.

120.   In the Tribunal’s view Mr C Singh did not satisfactorily explain why he viewed Mr Singh as having been provoked. Given Mr C Singh’s oral evidence to the Tribunal that he was not directly present when Mr Singh threw the plate and he did not see Mr Singh throw the plate, it is not clear to the Tribunal how or why Mr C Singh has formed the view that Mr Singh was provoked.

121.   The Tribunal intended to ask Mr C Singh about his attendance at the hospital after the victim was injured as a matter which may go to his credit as a witness. However, as there is information on file that indicates at least at one stage the events at the hospital were the subject of a separate police investigation the Tribunal chose not to ask Mr C Singh about those matters given if he was the subject of such an investigation he would have a common law privilege against self-incrimination or if he may be a witness the Tribunal needs to respect the investigation process, given its questioning in this respect would only go to Mr C Singh’s credibility and not to the determinative issues. After the hearing Mr Simmons submitted that SAPOL have not spoken to Mr C Singh since prior to the conviction of Mr Singh and Mr C Singh is not aware of any ongoing criminal investigation in relation to the matters raised by the Tribunal.[22] The Tribunal accepts this submission.

[22] MSM Legal Pty Ltd submission dated 15 November 2018 at pages 2 and 3, Tribunal file, folio 471 and 472 (back).

122.   Mr C Singh’s evidence is that Mr Singh is a part of their family who is and continues to be a decent and well behaved person who is trustworthy and close to Mr C Singh’s children, being a perfect uncle to them and is in particular close to Mr C Singh’s son.

123.   Mr C Singh requested, “as an Australian citizen”, that Mr Singh be given the opportunity to complete his studies and realise his goals.

124.   The Tribunal does not make any adverse finding as to the credibility of Mr C Singh as a witness and accepts his evidence that in his relatively recent experience of knowing and living with Mr Singh he believes he is a person of good character and is safe to be within the Australian community.

125.   Mr Simmons also provided the Tribunal with written references attesting to the good character of Mr Singh, including his religious observances, polite, peaceful and respectful nature and voluntary work in the community from:

·Mr Ali Kamarn dated 5 November 2018, who is Mr C Singh’s accountant and has in the past assisted Mr Singh with his tax return;

·Mr Mahanbir Singh Grewal, dated 4 November 2018, who is the President of the Guru Nanak Society of Australia Inc., of which Mr Singh is a member;

·Mr Bakhshinder Singh Harjai JP, dated 5 November 2018, who has known Mr Singh since November 2016 through Mr C Singh, including providing Mr Singh with driving lessons;

·Mr Gurshminder Singh, dated 31 October 2018, who is the President of the Punjabi Cultural Association of South Australia and has known Mr Singh through Mr C Singh and observed Mr Singh’s voluntary work including at the Australian National Sikh Games held in Adelaide during Easter 2017;

·Mr Ranjeet Singh Parmar dated 5 November 2018, who has known Mr Singh since March 2017 through Mr C Singh; and

·Mr Chris Johnson, undated, a volunteer with Second Chances, a charitable organisation supporting prisoner requests in South Australian prisons which led Mr Johnson to provide Mr Singh with a Punjabi bible and to discuss weekly with Mr Singh his faith and who observed Mr Singh attending Church services weekly in prison.[23]

[23] Tribunal file, folios 441 to 446.

126.   The Tribunal notes that Mr Kamarn, Mr Singh Grewal, Mr Singh Harjai JP and Mr Gurshminder Singh also provided letters of character reference for Mr Singh’s response dated 15 October 2017 to the Department’s NOICC.[24] This response was prepared by a different law firm that represented Mr Singh at that time, rather than MSM Legal Pty Ltd. In addition, Mr Singh’s response to the NOICC included a letter of character reference from Mr Niketan Walia who at the time of writing was the Chief Executive Officer of Durban International College and who attested to Mr Singh’s satisfactory attendance and progress in his studies, his positive attitude as a student and support of his fellow students.[25]

[24] Department file, folios 62 to 65.

[25] Department file, folio 66.

127.   The Tribunal accepts these letters of character reference for Mr Singh support the evidence of Ms Kaur and Mr C Singh before the Tribunal that Mr Singh is a person of good character.

128. Considering all of the available evidence before the Tribunal and for the reasons outlined above, the Tribunal finds that Mr Singh is or may be a risk to the safety of an individual being the victim should Mr Singh encounter the victim in future such that the ground for cancellation of Mr Singh’s Student visa under s.116(1)(e)(i) is made out.

129.   In summary the key reasons for this finding are:

·Mr Singh has been convicted and imprisoned for a serious crime of violence against another person which caused that person significant injuries and permanent scarring; and

·The Tribunal is concerned that there remains a risk that Mr Singh could lose his temper and act recklessly in the future, with a risk of harm to the victim, particularly if they meet again in a similar social situation. The Tribunal is not convinced when considering all of the evidence that Mr Singh has genuine insight into the causes and circumstances of his offending or that, as a result, he has genuinely taken full responsibility for his actions, given:

oMr Singh’s evidence of the circumstances of his offending as having been preceded by insults against him and his family, that he only threw the plate to keep the victim away from him as he felt he was going to be beaten, referring to a plate being thrown at him but only hitting him in the knee and describing his loss of temper and actions as bad luck and as an accident.

oMr Singh did not demonstrate unconditional responsibility for his actions and remorse toward the victim in his evidence to the Tribunal, such as by having made a personal apology to the victim or an offer or even evidence of consideration of, or an intent to offer any reparation to the victim even though making an apology or offering reparation are not legal obligations that Mr Singh currently has in relation to the victim.

oMr Singh told the Tribunal he was not drunk at the time of the incident despite the Chief Magistrate recording in his sentencing remarks that Mr Singh’s counsel had submitted during Mr Singh’s guilty plea that the incident was the result of a “drunken and foolish mistake” by Mr Singh.

oMr Singh has sought but not been able to access anger management courses or similar services that would offer professional insight into the circumstances and causes of his offending. The Tribunal acknowledges that not being able to access such services in prison has not been Mr Singh’s fault and he has reflected on his offending and sought to change his behaviour through religious study and observance which he self-reports has been effective. However, in his evidence to the Tribunal Mr Singh denied having any anger management issues or ever having lost his temper other than on this occasion.

130.   The Tribunal finds that Mr Singh remains a risk of causing harm to the victim.

131. This means that the ground for the cancellation of Mr Singh’s visa under s.116(1)(e)(ii), that he is or may be a risk to the safety of an individual, being the victim of his offending, is made out.

132. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e)(ii) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether Mr Singh’s Student visa should be cancelled.

133. For the sake of completeness, the Tribunal will also address the ground for cancellation under s.116(1)(e)(i).

Whether Mr Singh’s presence in Australia is or may be a risk to the safety of the Australian community or a segment of the Australian community under s.116(1)(e)(i)

134.   In his submission to the Tribunal dated 7 November 2018 Mr Simmons submitted on behalf of Mr Singh:

Noting the submissions above regarding the grounds for the power, we nonetheless contended that the only grounds that could be relied upon would be if Mr Singh is viewed to be a risk to a ‘segment of the community’ being fellow detainees of prison or immigration detention. The attached Case Offender Notes demonstrate that Mr Singh has been a model prisoner and there is no evidence of any involvement with further offending or instance of any kind.[26]

[26] Ibid.

135.   The Case Offender Notes record prison officer and prison services significant interactions or events with Mr Singh between 7 February 2018 and 27 April 2018.[27] Mr Simmons offered to try to obtain Case Offender Notes after 27 April 2018 but the Tribunal indicated this was not necessary as the Tribunal accepts Mr Simmons’ submission and Mr Singh’s evidence that he has not been involved with any further offending or negative incident while he was in prison which is a credit to Mr Singh.

[27] Op. cit., attachment, Tribunal file, folios 439 and 440.

136.   In the Tribunal’s view the strict control and regimen of prisoners means that Mr Singh’s exemplary behavioural record in prison does not eliminate the risk of him losing his temper and causing someone else harm in other environments such as being in the community, particularly where he will have access to alcohol, or even in immigration detention where there are different potential stressors such as multiple detainees being detained in shared accommodation.

137.   Further to this submission, Mr Simmons also submitted, in relation to the purpose of s.116(1)(e), that:

Section 116(1)(e) was amended in 2014 by the Migration Amendment (Character and General Visa Cancellation) Bill 2014. The second reading speech for the bill confirms that the intention of the amendment was to ‘introduce lower thresholds for cancelling temporary visas, reflective of the lower tolerance for behavioural concerns in the temporary visa context’ and to ensure that ‘where a real and immediate risk is posed by a noncitizen, the government can act quickly and decisively to remove that person from the Australian community before that risk can be realised’.

…

The purpose of s 116(1)(e) has therefore been served. The s 116 power to cancel Mr Singh’s visa pending the resolution of his criminal trial to ensure that any risk posed by Mr Singh was removed in accordance with the lower tolerance for behavioural concerns in the temporary visa context (sic).

By contrast, s 116(1)(e) is clearly not intended for situations where the criminal system has run its course and the applicant is imprisoned. In these cases, guilt and risk have already been established by the criminal justice system entrusted with this role, and so there is no longer a need to ‘quickly and decisively to remove that person from the Australian community before that risk can be realised’ [quote taken from the Second Reading speech for the 2014 Bill that amended s.116(1)(e)].[28]

[28] Op. cit. at page 5, Tribunal file, folio 435.

138. The Tribunal discussed this submission with Mr Simmons during the hearing. Mr Simmons clarified his submission went to the assessment of risk only and did not introduce a new or additional requirement into the assessment of whether the ground for cancellation had been made out under s.116(1)(e)(i), being whether a criminal sentence had been served or not.

139.   Mr Simmons clarified this submission in his post hearing submission to the Tribunal. In the post hearing submission Mr Simmons submitted:

The decision of the Tribunal therefore will not make any difference to the risk posed by [Mr Singh]: he will remain in prison or detention irrespective of whether the decision is affirmed or set aside. If the decision is set aside, he will remain in detention until he is either removed from Australia or until another decision-maker considers his circumstances at that point of time and grants a new visa.

It is not open to conclude that the decision to set aside the cancellation will definitely involve Mr Singh remaining in detention and exposed to this segment of the community any longer than if the decision was affirmed. There is no legal basis that will require the Department to allow Mr Singh to remain in Australia either in the event of an appeal of a decision to affirm the cancellation or in the event that a further application is lodged if the cancellation is set aside. The Department can take steps to remove Mr Singh irrespective of the result and his subsequent actions.

A decision to affirm the cancellation serves only to prevent Mr Singh from lodging a further Student visa application. In effect, it would be using s116 as an additional punishment based on [Mr Singh’s] guilt, rather than mitigating risk to the community. This is plainly not the purpose of this power and the visa framework is designed such that Mr Singh’s conviction will be assessed under the Character test as part of any future visa application.[29]

[29] MSM Legal Pty Ltd submission dated 15 November 2018 at pages 3 and 4, Tribunal file, folio 471.

140. The Tribunal does not accept, for the reasons already set out above, Mr Simmons’ submission that Mr Singh’s current circumstances, including his transfer to immigration detention, effectively limit the segment of the Australian community he is exposed to. The Tribunal also does not accept that the completion of the criminal justice process means that s.116(1)(e) has no further work to do. In the Tribunal’s view while Mr Singh remains in Australia, whether in prison, in detention or in the community, the Tribunal must assess when considering s.116(1)(e)(i) as the Tribunal currently is, whether Mr Singh is or may be a risk to any segment of the Australian community. This includes fellow detainees and those who work or volunteer in, provide services to or visit the immigration detention centre in which Mr Singh is detained, noting that there are restrictions on the movements of detainees that limit or manage their interactions with some of these groups of people.

141. The completion by Mr Singh of his criminal sentence or the potential deportation of Mr Singh at some future time if the cancellation of his visa is not set aside do not relieve the Tribunal of its obligation to assess the risk, if any, Mr Singh presents under s.116(1)(e)(i).

142.   The Tribunal also does not accept that undertaking this assessment and affirming the cancellation of Mr Singh’s Student visa is using s.116(1)(e) as additional punishment based on Mr Singh’s guilt. Section 116(1)(e) reflects that the Australian Parliament, through the migration law, considers the granting and holding of a temporary visa, such as a Student visa, to be a conditional privilege. The conditions of that privilege include that the presence of the visa holder must not actually or potentially be a risk to the safety of the Australian community or a segment of the Australian community.

143.   Where that assessment is undertaken and the visa holder is found to actually or potentially be a risk then the decision maker must proceed to consider the exercise of the discretion to cancel the visa holder’s visa in the context of the circumstances of the visa holder to determine whether those considerations and circumstances weigh in favour of the cancellation of the visa or not. This is the migration law as it is intended and arises not from the guilt of the visa holder, but from a considered assessment of the present and future risk the visa holder presents to, in this case, a segment of the Australian community.

144.   The Tribunal refers to its findings above in relation to Mr Singh’s lack of apparent insight into the causes of finding himself in the circumstances he did and lack of apparent understanding as to why he reacted the way he did.

145. Considering all of the available evidence before the Tribunal and for the reasons outlined above, the Tribunal finds that Mr Singh is or may be a risk to the safety of the Australian community or a segment of the Australian community such that the ground for cancellation of his Student visa under s.116(1)(e)(i) is made out.

146. 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 Mr Singh’s Student visa should be cancelled.

Consideration of discretion

147.   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 Mr Singh, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

148.   Mr Singh’s most recent substantive visa was a Student visa. The evidence before the Tribunal is that the purpose of Mr Singh’s travel to and stay in Australia was for the purpose of studying and Mr Singh therefore has a legitimate reason for travelling to and staying in Australia. Mr Singh gave evidence that he has not completed his commercial cookery and hospitality studies and needs to remain in Australia to do so to improve his career prospects when he returns to India. Mr Singh’s evidence is that he cannot complete equivalent study in India in terms of the course content and pedagogy.  The Tribunal accepts this evidence.

149.   The Tribunal finds this consideration weighs against the cancellation of Mr Singh’s Student visa and the Tribunal has given this consideration some weight.

The extent of compliance with visa conditions

150.   The Tribunal notes the delegate found that there was no evidence Mr Singh had not complied with the conditions of his Student visa at the time of cancellation.[30]

[30] Record of Decision dated 31 October 2017 at page 4, Tribunal file, folio 3.

151.   There is also no information before the Tribunal to indicate that Mr Singh has not complied with the conditions of his Student visa.

152.   The Tribunal finds this consideration weighs against the cancellation of Mr Singh’s Student visa and the Tribunal has given this consideration some weight.

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

153.   Mr Singh’s evidence to the Tribunal is that the ongoing cancellation of his Student visa will cause him and his family considerable hardship.

154.   Mr Singh told the Tribunal it is his dream to get a qualification from Australia and his parents dream that he get a good international qualification. If he is not able to do this Mr Singh said he feels he will not be able to prove himself to his parents or show them how he has improved his education. Mr Singh told the Tribunal ongoing cancellation of his Student visa will change his whole life and may mean he is not ever able to achieve the level of education he wanted.

155.   Mr Singh said he does not have another plan if he cannot obtain the qualifications he was studying for. If his Student visa remains cancelled Mr Singh told the Tribunal he will have to think about what he is going to do next as at the moment his focus is on finishing his studies and proving himself to his parents.

156.   Mr Singh told the Tribunal that his parents have spent considerable amounts of money in supporting him to come to and stay in Australia to study. He said his father is a bank manager and his mother a housewife and he was not sure how they had funded his stay and study in Australia, whether through a loan or otherwise.

157.   Mr Singh’s evidence is that if he cannot resume his studies then that will also hurt his parents emotionally as he will not fulfil their dream which will create shame for Mr Singh and if he is not a success, shame for his parents.

158.   It is also clear to the Tribunal from the evidence of Ms Kaur and Mr C Singh that they are emotionally very close to Mr Singh and have supported him financially and emotionally through both his criminal matter and the cancellation of his Student visa. Ms Kaur’s statutory declaration in particular attests to the emotional toll Mr Singh’s criminal and migration matters have taken on her and Mr C Singh’s statutory declaration attests to the closeness of the relationship between Mr Singh and their son.

159.   The Tribunal accepts Mr Singh’s evidence that both he and his parents will suffer significant financial and emotional hardship if his Student visa remains cancelled. The Tribunal also finds that Ms Kaur and Mr C Singh and their children, particularly their son, will also suffer considerable emotional hardship if Mr Singh’s Student visa remains cancelled.

160.   The Tribunal finds this consideration weighs against the cancellation of Mr Singh’s Student visa and the Tribunal has given this consideration considerable weight.

The circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

161.   Mr Singh’s Student visa was cancelled in circumstances where he threw a plate that hit another person in the face at a children’s birthday party causing the victim serious and lifelong injuries leading to Mr Singh being charged with a criminal offence. Mr Singh ultimately pleaded guilty to that offence and was convicted and sentenced to 284 days imprisonment in circumstances where the Chief Magistrate did not record in his sentencing remarks any circumstances of provocation or justification that would amount to extenuating circumstances.

162.   The information before the Tribunal is that this crime was Mr Singh’s first and only criminal offence.  In his sentencing remarks, His Honour Judge Hribal, the Chief Magistrate of South Australia, stated:

I note you come before the court with no prior convictions.

In sentencing you, I must impose a penalty that deters you, and others, from committing this type of offence. People need to be aware that the court will treat offending of this type seriously.

…

I believe that the seriousness of the offending and the need for general deterrence, outweigh all of your personal circumstances and require that a conviction be recorded.

Having considered all of the matters put to me, and s.10 of the Criminal Law (Sentencing) Act, it is my view that a sentence of imprisonment is warranted and that any other sentence would be inappropriate.[31]

[31] Remarks on Penalty of Judge Hribal, Chief Magistrate of South Australia at paragraphs 11, 12, 15 and 16, Tribunal file, folio 99.

163.   Mr Singh’s offence was a serious criminal offence of violence against another person.

164.   Mr Simmons submitted on Mr Singh’s behalf:

We wish to reiterate the Mr Singh shows significant remorse for his actions. He has actively tried to place himself on the right path whilst in prison by completing English literacy and numeracy classes, a barista course, and a course on religion. He has also worked at Clean Industries and Hegs Pegs whilst in prison.

Mr Singh asked Mobilong prison whether he could take part in anger management classes but he was told that they were not available to him. Mr Singh is unsure of the reasons behind this but instead chose to devote a considerable amount of time to his practice of the Sikh religion, and the study of Christianity. Mr Singh has found that self-reflective practices, prayers, and a more positive and rational mindset have assisted in getting his anger management on track.

Above all, Mr Singh acknowledges that his actions were nothing short of terrible. He is apologetic for his actions and feels guilt each day for the ramifications of these actions. Mr Singh frequently states that this was the first and last mistake he will ever make in his life.[32]

[32] MSM Legal Pty Ltd submission dated 7 November 2018 at page 9, Tribunal file, folio 453.

165.   This submission is consistent with Mr Singh’s oral evidence and his written statement to the Tribunal dated 6 November 2018.

166.   The Tribunal accepts this evidence with the significant qualification that for the reasons the Tribunal has previously noted, Mr Singh’s evidence to the Tribunal, particularly when describing the circumstances of his offending, his reasons for throwing the plate, the role of alcohol in his offending and whether he had or has anger management issues, caused the Tribunal to doubt (i) whether Mr Singh has genuine insight into the causes and circumstances of his offending; and (ii) whether Mr Singh has genuinely taken full responsibility for his actions.

167.   The Tribunal finds this consideration weighs in support of the cancellation of Mr Singh’s Student visa and the Tribunal has given this consideration great weight.

The past and present behaviour of the visa holder towards the Department

168.   Mr Simmons submitted on Mr Singh’s behalf that he had been truthful and cooperative in his dealings with the Department.[33]

[33] Op. cit. at page 8, Tribunal file, folio 454 (back).

169.   The delegate found that there was no evidence before the delegate that Mr Singh had been uncooperative with the Department or Department officers.[34]

[34] Record of Decision dated 31 October 2017 at page 5, Tribunal file, folio 2.

170.   The Tribunal finds that there is no evidence before the Tribunal that Mr Singh has been uncooperative with the Department or Department officers while holding either his Visitor (Subclass 600) visa or his Student (Subclass 500) visa.

171.   The Tribunal finds this consideration weighs against the cancellation of Mr Singh’s Student visa and the Tribunal has given this consideration some weight.

Whether there would be consequential cancellations under s.140

172.   Mr Singh’s evidence to the Tribunal is that there is no one who is dependent on his Student visa and therefore there is no one whose visa may be cancelled if Mr Singh’s Student visa remains cancelled.

173.   The Tribunal finds this consideration is neutral and does not weigh in support of or against the cancellation of Mr Singh’s Student visa.

Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable 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

174.   Mr Simmons submitted that the legal consequences of affirming the decision to cancel Mr Singh’s Student visa are as follows:

a) The s48 bar will prevent Mr [Singh] from making a valid application for any visa except for those prescribed under r.2.12(1). [Mr Singh] does not satisfy the eligibility criteria for any of these visas (namely the protection or partner visa). The Student visa is not exempt.

b) A waiver of s48 through ministerial intervention is not available – s48B only applies in respect to further Protection visa applications. Ministerial intervention under s351 of the Act is also not available as this power is only enlivened where there is first a decision of a Tribunal which will not be possible as a further valid application cannot be lodged.

c) Mr Singh’s purpose for travelling to Australia was to undertake a course of study. He has not demonstrated any intention to apply for any other visa. The imposition of the s48 bar will therefore be completely and utterly devastating.

d) If the decision is affirmed and Mr Singh does not pursue any appeal or other application, he will be removed from Australia under s198. He will then be impacted by two exclusion periods.

e) The first exclusion period arises by reason of Special Return Criterion 5002 under schedule 5 of the Regulations. [Mr Singh] will fall within the scope of this criterion if the decision is affirmed as he will subsequently be removed from Australia under s 198 of the Act. Special Return Criteria 5002 is an eligibility requirement applicable to all relevant permanent and temporary visas that [Mr Singh] may seek to apply for to return to Australia. This means that any visa application lodged within 12 months of removal will be refused unless the conditions for waiver under the criterion are found to be satisfied and the criterion is waived.

f) The second exclusion period arises by reason of Public Interest Criterion 4013 under schedule 4 of the Regulations. [Mr Singh] falls within the scope of subclause 4013(2) because his visa was cancelled under s 116 of the [Act]. Public Interest Criterion 4013 is an eligibility requirement applicable to all relevant temporary visas that the applicant may seek to apply for to return to Australia, such as a further Student or Visitor (Class FA)(Subclass 600) visa. This means that any temporary visa application lodged by [Mr Singh] within three years of the cancellation will be refused unless the conditions for waiver under the criterion are found to be satisfied and the criterion is waived.

g) The affirming of the cancellation will not only prevent Mr Singh from resuming his studies now, but also prevent him from attempting to resume his studies in the future. It will also act to prevent Mr Singh from simply visiting his close relatives in Australia – whilst we acknowledge that the exclusion periods can be waived if there are compelling or compassionate circumstances impacting an Australian citizen or permanent resident, they will be reliant on a delegate exercising this very broad discretion to find this high threshold is satisfied.[35]

[35] MSM Legal Pty Ltd submission dated 15 November 2018 at pages 4 and 5, Tribunal file, folio 470 and 471 (back).

175.   The Tribunal accepts these submissions with the qualification that it notes Mr Singh has relatives in Australia in the form of Ms Kaur who is his cousin and whose evidence is that she is a permanent resident of Australia and her husband Mr C Singh whose evidence is that he is an Australian citizen, such that there may be scope for Mr Singh to have the exclusion periods waived in the future. This is not a finding that could or will occur by the Tribunal as that is too speculative, but is an acknowledgement that this legal consequence of the cancellation of Mr Singh’s Student visa is not certain, at least in its potential duration.

176.   What is more certain is the legal consequence of ongoing cancellation for Mr Singh’s Student visa. Given his Student visa, if its cancellation were set aside, expired on 31 October 2018, it seems clear to the Tribunal that one mandatory legal consequence of ongoing cancellation will be that Mr Singh will not be able to apply for another Student visa and, subject to any appeal rights he may exercise, will be removed from Australia.

177.   Given immigration officers general obligation under s.198, subject to certain exceptions, to “remove as soon as reasonably practicable an unlawful non-citizen” from Australia it is possible that even if Mr Singh were to exercise any appeals rights available to him he may still be removed from Australia prior to such an appeal being finalised.

178.   When specifically asked in the hearing by the Tribunal, Mr Singh does not make any claim that he could be indefinitely detained. The Tribunal finds that there is no reasonable prospect based on the evidence before the Tribunal that Mr Singh will be indefinitely detained.

179.   The mandatory legal consequences of the ongoing cancellation of Mr Singh’s Student visa for Mr Singh in his current circumstances are very significant.

180. However, it is not clear to the Tribunal that this is an unintended outcome of s.116(1)(e). When section 116(1)(e) was amended in 2014 by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) in the Second Reading speech at Bill stage the Minister for Immigration and Border Protection, as the Minister was then, stated:

The purpose of this bill is to strengthen the character and general visa cancellation provisions in the Migration Act to ensure that non-citizens who commit crimes in Australia, pose a risk to the Australian community or represent an integrity concern are appropriately considered for visa refusal or cancellation. The bill also introduces a mandatory cancellation power for non-citizens who objectively do not pass the character test and are in prison.

…

Consistent with community views and expectations, the Australian government has a low tolerance for criminal, noncompliant or fraudulent behaviour by noncitizens. Entry and stay in Australia by noncitizens is a privilege, not a right, and the Australian community expects that the Australian government can and should refuse entry to noncitizens, or cancel their visas, if they do not abide by Australian laws. Those who choose to break the law, fail to uphold the standards of behaviour expected by the Australian community or try to intentionally mislead or defraud the Australian government should expect to have that privilege removed.[36]

[36] Second Reading speech of the Minister for Immigration and Border Protection for the Migration Amendment (Character and General Visa Cancellation) Bill 2014, delivered on 24 September 2014. Retrieved from the Parliament of Australia internet website on 16 November 2018 at

181.   The Tribunal notes Mr Simmons submission, referred to earlier in this decision, of the purpose of s.116(1)(e) and that affirming the cancellation of Mr Singh’s Student visa would not be consistent with the purpose of s.116(1)(e) and would be using s.116(1)(e) to impose additional punishment on Mr Singh based on his criminal guilt rather than an assessment of his risk to the Australian community or a segment of the Australian community.

182.   For the reasons outlined earlier, the Tribunal does not accept Mr Simmons’ submissions in this regard.

183.   The Tribunal finds the consideration of the mandatory legal consequences of the cancellation of Mr Singh’s visa weighs against that cancellation but in the context of the purpose and intended effect, or at least the not unintended effect, of s.116(1)(e) the Tribunal has given this consideration some weight.

Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

184.   Mr Singh’s evidence is that he does not have any children in Australia (or anywhere) and he does not claim that Australia’s non-refoulement or any other international obligation would be breached by the ongoing cancellation of his Student visa.

185.   The Tribunal finds this consideration is neutral and does not weigh in support of or against the cancellation of Mr Singh’s Student visa.

If it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

186.   Mr Singh’s Student visa is a temporary visa so this consideration does not apply in Mr Singh’s circumstances.

187.   The Tribunal finds this consideration is neutral and does not weigh in support of or against the cancellation of Mr Singh’s Student visa.

Any other relevant matters

188.   Mr Singh and Mr Simmons did not bring any other relevant matters to the attention of the Tribunal.

Conclusion

189.   In considering Mr Singh’s circumstances as a whole, the Tribunal concludes that the visa should be cancelled. The Tribunal considers that the consideration that weighs in favour of the ongoing cancellation of Mr Singh’s visa, being the circumstances in which the cancellation of his visa arose, outweighs the considerations that weigh against the cancellation of Mr Singh’s visa, including the purpose of Mr Singh’s travel to and stay in Australia, his compliance with his visa conditions, the degree of hardship that cancellation may cause Mr Singh and his family and the mandatory legal consequences of cancellation for Mr Singh.

DECISION

190.   The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Michael Ison
Senior Member