Singh (Migration)

[2018] AATA 2701

Singh (Migration) [2018] AATA 2701 (15 June 2018)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurmeet Singh

CASE NUMBER:  1807069

HOME AFFAIRS REFERENCE(S):           BCC2018/436046

MEMBER:Ann Duffield

DATE:15 June 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 15 June 2018 at 8:35am

CATCHWORDS
Migration – Cancellation – Student(Temporary) (Class TU) visa – Subclass 500 (Student) – Risk to Australian community – Criminal charge – Charges not withdrawn – DPP withheld passport – No sole legal or financial responsibility – Length of residence – No legal commitment to current employer – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 12 March 2018 made by a delegate of the Minister for Home Affairs 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 has been charged with a serious crime in the State of Queensland and that he presents a risk to the safety of an individual or individuals in the Australian community. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 11 June 2018 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent, who also attended the hearing and made submissions on behalf of the applicant.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(e)(ii).

7. Under this provision, if the Minister or the Tribunal 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; the applicant’s visa may be cancelled.

8. 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?’

9. The applicant has been charged with a serious offence in the State of Queensland, that being [a criminal offence] on 24 February 2018. He was formally charged on 2 March 2018 and released on bail. His visa was cancelled on 12 March 2018 after an interview with Border Force officers. He was taken into immigration detention where he remains.

10. The applicant strenuously denies this charge and submits that the grounds for cancellation do not exist since he is of no risk to anyone in the Australian community. The applicant claims that he is a law abiding member of the community and has complied with the conditions of his past visas. The applicant claims that he has not been convicted of any crimes in the past and has not yet been convicted of the current charges against him. He says that he is innocent until proven guilty.

11. The Tribunal reminded the applicant that the test in this particular instance was not the same as the criminal justice test and the Migration Act gave the Minister, and the Tribunal, the power to cancel the visa on the basis of a charge alone, no matter the seriousness of the offence. The Tribunal told the applicant that the purpose of the hearing was not to ascertain his innocence or guilt of the alleged crime, but to establish if grounds existed for the cancellation of his visa and if they did exist, to consider whether there were any compelling reasons not to cancel the visa.

12. The Tribunal has considered the applicant’s submissions and those of his representative and rejects the proposition that grounds for cancelling the applicant’s visa are not made out.

13. The nature of the charge against the applicant is grave and neither made nor pressed lightly. The Tribunal notes that the victim has not withdrawn the charges and the DPP has withheld the applicant’s passport. The applicant and his representative have put to the Tribunal an unsubstantiated proposition that an employee of the department of Home Affairs approached the applicant and pressured him to sign a document which would allow his deportation; he claims that employee told him that the victim would withdraw the charges if he was deported as she did not want to go to trial. The applicant claims that he did not sign any documents seeking his deportation from the country as he wanted to face trial and prove his innocence.

14. The Tribunal asked the applicant why he was putting forward this information as it was unclear what aspect of his case it supported. The applicant claimed it demonstrated that the charges were false and would be withdrawn. The Tribunal put to the applicant that as it had no evidence to substantiate his claims it could not take them seriously and in any case, the Tribunal pointed out that not wanting to face a court did not have the same meaning as withdrawing the charges or an admission that the charges were contrived.

15. The Tribunal asked the applicant if the victim had withdrawn the charges and he said that she had not. The Tribunal suggested that if the victim was going to withdraw the charges then she would possibly have done so by now. The applicant said that he did not know what the victim intended. The Tribunal put to the applicant that his evidence could equally be interpreted as him approaching the department and asking to be removed in order to avoid facing the charges against him. The applicant denied this. The Tribunal put to the applicant that without any further evidence to substantiate his claims it did not put any weight on this aspect of his evidence.

16. The Tribunal has also noted the applicant’s submission that he poses no risk to the victim or the Australian community because he is innocent. That matter is yet to be tested and the legislation does not require the Tribunal to wait until the applicant is convicted to discharge its duty in law.

17. The charges against the applicant, as noted before, are grave. They involve [details deleted]. The applicant’s representative suggests that the crime is at the lower end of the scale as there is no suggestion on the applicant’s charge sheet that any violence was involved. The Tribunal put to the applicant that [the conduct] was a singularly violent crime in itself. The representative agreed, telling the Tribunal that he did not intend to diminish the seriousness of the alleged crime.

18. The Tribunal is not satisfied that the applicant is not a risk to the community. [Sentence deleted]. Asked what his girlfriend/fiancée thought about the crimes with which he had been charged he said that she was shocked and did not believe that he would be capable of such an act.

19. The applicant had previously told the Tribunal that his girlfriend and he lived separately and apart as required by their custom and their parents were in the process of arranging their marriage. The applicant claims that he has told his parents of the charges and the whole family is prepared to support him financially whilst he fights the charges against him.

20. The Tribunal is satisfied that the applicant has been charged with a crime under the laws of Queensland.

21. The Tribunal is satisfied that the applicant is or may be, or would or might be a risk to the Australian community. He has not satisfied the Tribunal that he understands what behaviour may or might, constitute a risk to another person. The applicant made a point of telling the Tribunal that he respects his own customs such that he and his girlfriend do not have an intimate relationship. In the Tribunal’s mind he has demonstrated that such respect does not extend [to] other women whilst betrothed to his fiancée. In making this statement, the Tribunal is not making a finding on whether the applicant is guilty of the crime for which he has been charged, only that his action [against] another woman demonstrates that he has a fluid view of what constitutes appropriate behaviour in relation to his betrothed and perhaps to others. In the Tribunal’s mind, the words “may or might be a risk” is a bar that the applicant has not cleared.

22. 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 the visa should be cancelled.

    Consideration of discretion

23. The tribunal has considered the following factors, including matters raised by the applicant in forming a view as to whether or not it exercise its discretion not to cancel the applicant’s visa.

    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

24. The applicant told the Tribunal that he has only one semester to complete his degree and then he wishes to apply for permanent residency in Australia. When questioned about whether he could find work in his chosen field in India he admitted that he could. He has no family in Australia except his girlfriend and her relatives.

25. The Tribunal notes that if the applicant’s visa is cancelled his opportunities to remain permanently in Australia will be adversely affected.

26. The Tribunal is not satisfied that the applicant has a compelling need to remain in Australia or to travel to Australia again in the foreseeable future.

    the extent of compliance with visa conditions

27. There is no evidence before the Tribunal that the applicant has not complied with previous visa conditions.

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

28. The applicant claims that he will suffer financial and emotional hardship if his visa is cancelled. He has said that he wishes to remain in Australia permanently. He claims that whilst he is in detention he is unable to work and earn money to pay for either his criminal or migration cases. The applicant further claims that it would be difficult for him to conduct his defence whilst in detention as access to his lawyers would be restricted. He said that there are only eight computers in detention and it is difficult to make phone calls as well because there is always a queue. The applicant claims that he will be isolated from support from the community and his girlfriend and friends if he remains in detention and this will affect him adversely.

29. The Tribunal notes that the applicant shared an apartment with friends and therefore does not have the sole financial or legal responsibilities for his accommodation. He has been in Australia for around 3 years and whilst he has a circle of friends and acquaintances the length of his residence is not substantial and it could not be said that he has developed roots such that he would suffer hardship if he were required to leave. He has no children and is not married.

30. He claims to be have been working part time as a cook during his period of study with a number of different employees over the past several years. He does not have a legal commitment to remain with his current employee nor has he provided any evidence that his departure from his current employee would cause them, or himself, hardship.

31. The Tribunal is not satisfied that the cancellation of the applicants visa would cause any financial, psychological, emotional or other hardship such that would compel the Tribunal not to cancel the applicant’s visa.

    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

32. The circumstances of the grounds for the applicant’s visa cancellation are criminal charges and the Tribunal is not satisfied that the applicant is not a risk to the Australian community. The Tribunal is not satisfied that the charges arose in circumstances which were beyond the applicant’s control.

    past and present behaviour of the visa holder towards the Department

33. There is no evidence before the Tribunal that the applicant’s behaviour towards the department has been adverse.

    whether there would be consequential cancellations under s.140

34. This does not apply.

    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

35. The Tribunal notes that the applicant would be liable for continued detention until the outcome of his court case, which has not yet been set. This period of detention could amount to several years. The Tribunal also notes that if the applicant’s visa is cancelled there would be adverse consequences for his re-admission to Australia.

36. The Tribunal accepts that this would cause the applicant hardship but not such that it would compel the Tribunal not to cancel the applicant’s visa.

    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

37. There are no international obligations relevant to this case.

    if it’s a permanent visa, whether the former visa holder has formed strong family, business or other ties

38. The applicant does not have strong family business or other ties in Australia.

    any other relevant matters

39. The Tribunal does not consider that there are any other relevant matters.

40. Having carefully considered the entirety of the applicant’s circumstances, the Tribunal concludes that the visa should be cancelled

    DECISION

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

    Ann Duffield
    Senior Member