Singh (Migration)

[2018] AATA 5438

Singh (Migration) [2018] AATA 5438 (16 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Satbeer Singh

CASE NUMBER:  1715409

HOME AFFAIRS REFERENCE(S):           BCC2017/1856306

MEMBER:Denis Dragovic

DATE:16 October 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 16 October 2018 at 1:34pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – 500 (Student) visa – applicant had been charged with offences against his wife – Charges have been dropped – the intervention order revoked– decision under review set aside

LEGISLATION
Migration Act 1958, 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 10 July 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(e)(ii) on the basis that the applicant had been charged with offences against his wife.

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

4. The applicant appeared before the Tribunal on 11 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Balkiat Singh. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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?

8. 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].

9. Evidence in the form of a Certificate of Record from the South Australian Magistrates Court was provided by the applicant to the Tribunal (folio 53). This certificate covered the court proceedings from when the applicant was charged through to 9 August 2017 when it is recorded that the charges were ‘Not proceeded with’. 

10. In addition an interim intervention order had been issued and re-issued until 24 August 2017 when the application for a further intervention order was dismissed and the existing order revoked by the Magistrate.

11. The delegate noted that the ‘PAMs and the wording of the legislation at s116(1)(e) make clear these grounds are not dependent on guilt, criminal conviction, or sentencing. These are separate issues and should the charges proceed to a hearing, Mr Singh will still have the opportunity to pursue his court matters whether his visa is cancelled or not.’ I acknowledge that the absence of charges does not in of itself negate the fact that the applicant remains or may remain a risk to the safety of an individual. Nevertheless, it does greatly lessen the weight of evidence against the applicant.

12. As the charges entailed behaviour relating to his wife I asked about their relationship. The applicant explained that he has not lived with her since 22 May 2017 when the charges were laid against him. He claims to not have met with her and only talks to her on occasions when matters arise such as the most recent conversation being on the 18 August when she requested a copy of some of her identity documents which he had. He described their relationship as being on talking terms. Without evidence to the contrary I accept this as fact.

13. The applicant now lives with the witness who is a distant relative. The applicant remains as a dependent upon his wife’s student visa. He does not have work rights and claims that he spends his time by going to the Temple. He claims that he paid for his rent through some money his aunty gave him. Without evidence to the contrary I accept these claims as fact.

14. The courts have determined that the charges should not proceed and that the intervention order be revoked. This leads me to give considerable weight against forming the view that the applicant is a risk to his wife. I note that he has been in the community on a bridging visa throughout the court proceedings and since then until the hearing, a period of over a year. There is no evidence before me that indicates he has acted in a way that has put at risk the safety of his wife. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(e)(ii) exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

15. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    Denis Dragovic
    Senior Member