Singh (Migration) - [2017] AATA 850

Singh (Migration) [2017] AATA 850 (16 June 2017)

CORRIGENDUM

DIVISION:Migration & Refugee Division
APPLICANT:  Mr Jagdeep Singh
CASE NUMBER:  1712106
DIBP REFERENCE(S):  CLF2017/40565 BCC2016/2367059
MEMBER:The Honourable Justice J A Logan RFD, Acting President
DATE OF DECISION:  16 June 2017
DATE CORRIGENDUM
SIGNED:27 June 2017
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:

On page two of the decision, DIBP Reference(s) should include DIBP file number “CLF2017/40565”.

At paragraph 3, the word "detention" to be inserted after "immigration", the sentence should read"... placed in immigration detention as a sequel ...".

At paragraph 3, the word "cancel" should be deleted and the word "grant" should be inserted. The sentence should read"... not to grant Mr Singh's application ...:".

At paragraph 13, the word "do" should be deleted, the sentence should read "... to request an officer of a department to make an inquiry".

At paragraph 32, the word "eave" should read "leave".

At paragraph 48, the word "wife" should be inserted before "review application", the sentence should read"... though Mr Singh's wife's review application remains ...".

At paragraph 54, the quoted paragraph should read "26" not "23".

The following catchwords are inserted at the beginning of the decision:

MIGRATION- where Minister's delegate refused to grant the applicant a Bridging visa E subclass 050 - immigration detention - application for and grant of bridging visa E as a means of obtaining release from detention - pending voluntary departure from Australia - where decision of the Minister's delegate set aside by the Administrative Appeals Tribunal

ADMINISTRATIVE LAW- applicant convicted and sentenced in respect of offence of indecent assault - whether applicant represented an unacceptable risk of non compliance with visa condition not to breach criminal law

ADMINISTRATIVE LAW - applicant seeking merits review - role of the Administrative Appeals Tribunal - requirement in merits review to consider application independently and afresh

The Honourable Justice J A Logan RFD Acting President

27 June 2017

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )
)No: [1712106]

MIGRATION AND REFUGEE DIVISION )

JAGDEEP SINGH

DIRECTION

TRIBUNAL:The Hon. Justice J A Logan, RFD
A/g President of the Administrative Appeals Tribunal

DATE: 16 June 2017 at 11:07am

PLACE: Melbourne

The Tribunal ORDERS:

1. The Tribunal sets aside the decision under review and substitutes a decision to grant to Mr Singh a Bridging visa E – subclass 050 on the following conditions:
·8101 – The holder must not engage in work in Australia.
·8207 – The holder must not engage in any studies or training in Australia.
·8401 – The holder must report:
(a)at a time or times; and
(b)at a place
specified by the Minister for the purpose.

·8506 – The holder must notify Immigration at least 2 working days in advance of any change in the holder’s address.
·8564 – The holder must not engage in criminal conduct.

................................................................

The Hon. Justice J A Logan, RFD
A/g President of the Administrative Appeals Tribunal

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Mr Jagdeep Singh
CASE NUMBER:  1712106
DIBP REFERENCE(S):  BCC2016/2367059

MEMBER: The Honourable Justice J A Logan RFD,

Acting President

DATE:16 June 2017
PLACE OF DECISION: Melbourne
DECISION:
The Tribunal sets aside the decision under review and substitutes a decision to grant to Mr Singh a Bridging visa E – subclass 050 on the following conditions:
·8101 – The holder must not engage in work in Australia.
·8207 – The holder must not engage in any studies or training in Australia.
·8401 – The holder must report:
(a)at a time or times; and
(b)at a place

specified by the Minister for the purpose.
·8506 – The holder must notify Immigration at least two working days in advance of any change in the holder’s address.
·8564 – The holder must not engage in criminal conduct.
Statement made on 16 June 2017 at 11:07am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

Mr Jagdeep Singh has applied to the Tribunal for the review of a decision dated 5 June 2017, made by a delegate of the Minister for Immigration and Border Protection (Minister), to refuse his application under the Migration Act 1958 (the Act) for a Bridging E (Class WE) General (subclass 050) visa).
The Minister’s delegate refused to grant the visa on the basis that Mr Singh had been convicted in Victoria upon a plea of guilty of the offence of indecent assault of an adult female, that he gave at interview with the delegate an exculpating version of events that differed significantly from the circumstances as put to the sentencing court by the Victoria Police, that the delegate considered that he should act on the conviction and the police version, that the maintaining by Mr Singh of his innocence indicated an absence of remorse and that he therefore presented an unacceptable risk of reoffending should he be released from immigration detention. That being so, the delegate was not satisfied that Mr Singh met condition 8564, “The holder must not engage in criminal conduct””, made applicable to this class of visa by subclause 050.617 in the Migration Regulations 1994 (Regulations). Accordingly, he refused to grant the visa for which Mr Singh had applied.
The delegate’s decision meant that Mr Singh remained in immigration detention. He had earlier been apprehended by officers of the Australian Border Force and placed in immigration as a sequel to a decision made personally by the Minister in May to substitute his cancellation decision for that of a decision of the Tribunal in November 2016 (Senior Member Holmes) which had set aside a decision of one of his delegates not to cancel Mr Singh’s application for a different class of bridging visa (Subclass 020 (Bridging B) visa).
The issue is what is the correct or preferable decision, approaching the question afresh and on the material before the Tribunal, as to whether or not to grant the visa for which Mr Singh has applied?
Mr Singh took up an invitation from the Tribunal to appear at a hearing of his review application. He appeared before the Tribunal on 15 June 2017. He both gave evidence and made submissions at the hearing. Mr Singh was the only person who gave evidence. Save for this, the material before the Tribunal comprised a merged file which, as indexed, contains contents from Tribunal Case Number 1616198 and the contents of Tribunal File 1712106.
The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. That assistance was availed of both by Mr Singh and me, as required. He does have, to my direct observation at the hearing, quite a good command of written and spoken English but there were times when either he or I, if only out of an abundance of caution, availed ourselves of the interpreter. I am quite satisfied that in this manner the hearing was conducted in a way in which both he and I were able fully to communicate one with the other. I should also record that Mr Singh at all times conducted himself in a courteous, dignified manner and displayed respect for the Tribunal.
Mr Singh’s case and the Minister’s personal involvement, in recent times, have attracted publicity in the popular press, a fact to which he referred, in what I thought was an apprehensive way, in the course of the hearing. I assured him at the time that I was independent of the Minister and would bring an independent mind to bear on the merits of his application, irrespective of any earlier publicity. This makes it desirable to recall, both for Mr Singh’s benefit and more widely, why the Tribunal was established and features of the Tribunal. Also, certain features of the conduct of the Minister’s Department in relation to this review cannot pass unremarked.
For the following reasons, I have concluded that the decision to refuse to grant to Mr Singh the visa for which he applied should be set aside.

INDEPENDENT MERITS REVIEW

The establishment of the Tribunal over 40 years ago and the progressive expansion of its jurisdiction since then are each the result of successive, parliamentary value judgements as to a need to improve the quality of, and instil greater public confidence in, Australian public administration.
It was Sir Anthony Mason, when Commonwealth Solicitor-General, who in 1968 put to the then Commonwealth Attorney-General, Sir Nigel Bowen[1] that there was such a need. This was a view shared by Sir Nigel. The result was the establishment of the Commonwealth Administrative Review Committee, of which Sir Anthony was an initial member. That committee was chaired by Sir John Kerr, then a Judge of the Commonwealth Industrial Court and of the Supreme Court of the Australian Capital Territory.[2] The committee’s consequential report (Report of the Commonwealth Administrative Review Committee 1971; Parliamentary Paper No. 144 of 1971) is popularly referred to as the “Kerr Committee Report”. The Kerr Committee Report proved to be a precursor for enduringly important reforms by Parliament of Australian public law. One of these was the establishment of this Tribunal by the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). There were others to which I shall shortly refer.
[1] Later Chief Judge in Equity of the NSW Supreme Court and then the first chief Judge (as the office of Chief Justice was initially known) of the Federal Court.
[2] The other members of the committee were, the then Commonwealth Solicitor General, Mr A F Mason QC, who on his appointment to the New South Wales Court of Appeal, was replaced by his successor in the office of Solicitor General, the then Mr R J Ellicott QC, later Commonwealth Attorney General and later yet a judge of the Federal Court and Professor Harry Whitmore, a leading public law academic.
In the Kerr Committee Report, the need for reform was summarized in this way:
In formulating our proposals we have concluded that there is an established need for review of administrative decisions. We have not thought this to be a matter of real debate…In coming to that conclusion we do not suggest that there is any propensity to err in the administrative process…It is the possibility of error that demonstrates the need for review.”[3]
(Emphasis added)
[3] Kerr Committee Report; paragraph 10.
In recalling, in 1989,[4] when Chief Justice of Australia, events that led to the establishment of the Kerr Committee and the experience of the first dozen years of the existence of the Tribunal and of the other reforms of which it formed part, Sir Anthony Mason identified five features of administrative decision-making by Ministers and public servants in their departments which fell short of the judicial model and which meant that such decision-making had never achieved the level of acceptance of the judicial model:
First, it lacks the independence of the judicial process. The administrative decision-maker is, and is thought to be, more susceptible to political, ministerial and bureaucratic influence than is a judge. Secondly, some administrative decisions are made out in the open; most are not. Thirdly, apart from statute, the administrator does not have to give reasons for his decision. Fourthly, the administrator does not always observe the standards of natural justice or procedural fairness. That is not surprising; he is not trained to do so. Finally, he is inclined to subordinate the claims of justice of the individual to the more general demands of public policy and sometimes to adventitious political and bureaucratic pressures.[5]
The very nature of the merits review jurisdiction which I exercise as a member of the Tribunal means that it is neither necessary nor even appropriate that I pass any remark at all as to whether any of these features seem to me to be present in the Minister’s delegate’s decision in relation to Mr Singh’s present visa application. It is the fact of that decision which enlivens jurisdiction and I am not sitting to critique it; rather to make a decision on the merits afresh.
[4] Sir Anthony Mason AC, KBE, Administrative Review: The Experience of the first Twelve Years (1989) 18 Fed.L.Rev.122.
[5] Ibid, at 130.
The Tribunal was deliberately established with features of the judicial model so as to address the deficiencies to which Sir Anthony Mason referred. That is why, including in its Migration Review Division, the Tribunal generally sits in public, is required to observe procedural fairness, including any particular specified statutory requirements in that regard, must give proper reasons for its decisions and base them on material before the Tribunal which is logically supportive of them, has, in many cases, power to stay the operation of decisions under review, has power to summon persons to give evidence or to produce documents or, as the case may be, to request an officer of a department to do make an inquiry or obtain information and why conduct which would amount to a contempt of court if the Tribunal were a court is made a federal offence. It is also why Tribunal members are appointed by the Governor-General on the advice of the Attorney-General, rather than on the advice of a Minister the decisions of whom or whose delegates may be reviewed by the Tribunal. Tribunal members are not “self-appointed”.
As to its membership, it has always been a feature of the Tribunal not only that its President (or, like me, its acting President) is a Federal Court judge but also that other judges enjoying, in their judicial office, the security of tenure for which s 72 within Chapter III of the Constitution provides, participate in its work. This affords the Tribunal a measure of institutional independence, as well as many collegiate benefits for the Tribunal’s membership as a whole. Non-judicial presidential members were, as at the Tribunal’s establishment, also given an age-related tenure akin to judges, although that was not constitutionally entrenched. That type of tenure was changed as a result of a later parliamentary value judgement. Term appointments have always been a feature of the balance of the Tribunal’s membership.
Tenure aside, the judicial analogy is not complete, as the model adopted for the Tribunal by Parliament places a member(s) constituting the Tribunal in place of the administrator who made the decision under review and confers on the member all of the powers and discretions of that administrator. The constitutional propriety of that type of model was settled long ago when adopted for Taxation Boards of Review.[6] The Tribunal is thus not a court but an independent part of the executive government. The task is to make, according to law, the correct or preferable decision on the material before the Tribunal.[7]
[6] Shell Company of Australia Ltd v Commissioner of Taxation [1931] AC 275.
[7] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419 per Bowen CJ and Deane J and, materially for the present review, ss 348 and 349 of the Act.
The Tribunal was, and remains, an integral part of a combination of reforms designed by Parliament to improve Australian public administration, the origins of most of which may be traced to the Kerr Committee Report. Others are the procedural liberalisation of judicial review by the Administrative Decisions (Judicial Review) Act 1977 (Cth) and the alteration of the common law by s 13 of that Act so as to confer on persons aggrieved by an administrative decision a right to require reasons for that decision, the establishment of the office of Ombudsman and the establishment of the Administrative Review Council. To these might be added the conferral of freedom of information rights by the Freedom of Information Act 1982 (Cth).
The very existence of the Tribunal and the independent, quasi-judicial model adopted for it means that, inevitably, there will be tension from time to time between Ministers and others whose decisions are under review and it. The same type of tension can occur as between Ministers and others and the courts in relation to judicial review of administrative decisions.[8] These are inherent features of any checks on the exercise of arbitrary power. They can be lessened if each element of our system of government understands and respects the role of the other.
[8] As to this, see, notably, The Hon Michael McHugh AC, Tensions Between the Executive and the Judiciary (2002) 76(9) ALJ 567.
That does not mean that Tribunal decisions are immune from criticism. It does mean that, in respect of such individual decisions, Tribunal members speak via their reasons and otherwise not at all. It would be subversive of the very independence from the partisan or political that is a feature of the Tribunal were it otherwise. Further, any member who allowed himself or herself to be persuaded as to an outcome by partisan or political rhetoric by a Minister, any other administrator or the popular press would be unworthy of the trust and confidence placed in him or her by His Excellency the Governor-General and untrue to the oath or affirmation of office which must be taken before exercising the Tribunal’s jurisdiction.[9] For those members who do not enjoy the same security of tenure as judges, that may call at times for singular moral courage and depth of character.
[9] s 10B of the AAT Act requires the following oath or affirmation to be made by each member of the Tribunal as a pre-condition to exercising jurisdiction:

AN ADMINISTRATIVE DECISION-MAKING CONTINUUM

The Tribunal forms part of an administrative decision-making continuum.[10] Because of this, and even though the Tribunal is obliged to consider afresh the merits of a decision under review, the particular issues which arise before the Tribunal in a given review are necessarily influenced by the course of earlier stages in that continuum and by the positions adopted in respect of the review by any party to it or, as the case may be, any person entitled to make a submission in respect of the review who makes such a submission.[11]
[10] Jebb v Repatriation Commission (1988) 80 ALR 329 at 333, Davies J.
[11] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152.
The Act recognizes the Tribunal’s place in an administrative decision-making continuum by permitting the Tribunal to seek information it considers relevant from, amongst others, the Secretary to the Minister’s Department.[12] It also permits the Secretary to give to the Tribunal written argument relating to the issues arising in relation to the decision under review.[13] In this case, the Tribunal requested from the Secretary “all information in relation to the compliance and cancellation files”. The Secretary was also invited to make a written submission.
[12] s 359.
[13] s 358(2).
In furnishing information to the Tribunal, the Secretary chose to include with that a certificate given by one of his delegates, who was also a delegate of the Minister, under s 375A of the Act. That certificate related to four documents (folios 2 and 3 and 5 and 6) in file number BCC2016/2367059 a copy of which was supplied to the Tribunal by the Secretary in response to the Tribunal’s request and to “information contained” therein. Disclosure was said to be contrary to the public interest because, as to folios 2 and 3, they were supplied by another organization in confidence and, as to folios 5 and 6 they were “internal working documents the release of which would hamper the organisation’s ability to carry out its legitimate law enforcement activities”.
At the hearing, and as I considered that I was bound to do as a result of a judgement of the Full Court in relation to the Act,[14] I furnished Mr Singh with a copy of the certificate (because it did not seem to me that so doing would be subversive of the intent of s 375A and the particular certificate). I also informed him, and the fact is, that folios 5 and 6 related to nothing more than successive internal handling within the Department of his visa application while folio 3 disclosed the existence of a criminal record in respect of him and folio 2 was a copy of a police criminal history report giving particulars of that record. I further informed him that I did not consider that there was anything in folios 5 or 6 in any way relevant to the merits of whether to grant him a visa and, as to folios 2 and 3 that I considered it necessary to put to him as a matter of fairness, because it was adverse to him, the existence of a court proceeding in respect of a charge of which he had been convicted and the sentence which had been imposed on him. I invited him to make such submissions as he wished about it. I also put to him the details of the court proceeding and its outcome. Mr Singh later gave evidence about that but he chose not to make any particular submission about the certificate.
[14] Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305.

I can see that Folios 5 and 6 may well have come to be included because, out of an abundance of caution, the Secretary took the view, even if he did not consider them to be relevant to the review (which they are not), that they nonetheless fell within the description in the request, “all information in relation to the compliance and cancellation files”. In relation to this type of review, there is no direct counterpart to s 37 of the AAT Act in relation to the furnishing by a person whose decision is under review of the documents containing information relevant to the review. Where that section applies, the decision-maker is required to make a discriminating choice as to what is supplied with an uncritical copying of the file concerned being insufficient compliance. It would be desirable in future if requests of the Secretary by the Tribunal left to that official the responsible task of making a like discriminating choice.
Parliament doubtless considered that there was some utility in s 375A of the Act beyond the general provision in the AAT Act[15] in respect of the making of non-publication orders by the Tribunal. Even so, it is necessary that common sense attend the administration of that section by the Minister, the Secretary and their delegates. Taken literally, because it was “information” in the criminal history, the terms of this certificate would have precluded my putting to Mr Singh the existence of the very court proceeding the outcome of which was, in the written submission which the Secretary chose to make, plainly influential not only in the delegate’s decision but underpinned why it was that the Secretary submitted that the decision under review should be upheld. And that in respect of a court proceeding which was held in public and the outcome of which was a matter of public record.
[15] s 35(2), AAT Act.
As it was, I had the very same information before me as a result of my requesting the decision and reasons of the Tribunal in respect of an earlier, different bridging visa application and related review application made by Mr Singh: Case No 1616198, 21 November 2016 (Senior Member Holmes) (2016 AAT decision). I considered that this spared me the difficulty of having further to comply with s 375A of the Act while at the same time reconciling that with my obligation under s 360 of the Act to offer and provide to Mr Singh a meaningful review hearing, taking into account whatever procedural fairness obligation existed either at common law or, insofar as it had any residual relevance to the information in light of the Full Court’s judgement, s 359AA.
The Secretary took up the invitation to make a submission in writing although in strict form (and, with respect, oddly) he stated that he was not doing this. His submission was abbreviated but, in itself, none the worse for that, particularly given the compressed time frame in which this type of review must, in the absence of any agreement by an applicant to its extension, be conducted.[16] His submission was that, “the questions raised are clearly addressed in the decision under review”. I make further reference to this and to its ramifications below. What the Secretary’s submission did not do was to give any insight into whether there was any special consideration or information which had informed the Minister in deciding, personally, some six months later, to over-ride the 2016 AAT decision, much less to provide me with the Minister’s considered reasons for so doing. The Tribunal is, as I have mentioned, part of an administrative decision-making continuum. A case like the present is not to be decided in a vacuum. While the Minister’s decision or reasons could not bind the Tribunal in respect of the present review application, an earlier, considered, personal decision by a responsible Minister of State, necessarily in respect of an over-lapping issue, would not, in my view, be irrelevant. As it is, I have conducted the review on the basis of the issues or, as the case may be, non-issues as they emerge from the material before me, the submission made to me by the Secretary and Mr Singh’s submissions. To that subject I now turn.
[16] Though I mentioned to Mr Singh at the hearing that an extension of the period would be possible with his consent, I also informed him that, subject to anything which emerged at the hearing, I expected that I would be able to give my decision and reasons on or before 19 June 2017, which would otherwise be the last day for deciding the review. In these circumstances, I did not promote and he did not request any extension of the time.
CONSIDERATION OF CLAIMS AND EVIDENCE
On the basis of the material before me and the evidence given by Mr Singh at the hearing, I find the following – Mr Singh is a citizen of the Republic of India. He was born there on 18 March 1983. He is the holder of a passport from that country which expires on 4 November 2017. He is presently in immigration detention. He is married. He and his wife do not have children. Prior to his being placed in immigration detention, he was living with his wife in rented accommodation in Melbourne. He was not then employed but his wife was and is working in a restaurant business.
In respect of a Bridging E (class WE) visa – subclass 050, the Regulations provide a number of criteria some of which must be satisfied at the time when the application for the visa was made and some of which must be satisfied at the time when the decision in respect of the visa is made.
As to the time of application criteria, the delegate was satisfied as to criterion 050.212(2) – applicant is making or is the subject of making arrangements to depart Australia. The delegate recorded:
The applicant applied for this visa on the basis that he intends to make arrangements to depart Australia. He has indicated on his application form that he is requesting time in the community to organise things at home and sell items including a car, collect documents from a university, manage affairs with his rental property. The applicant indicated that once he has done all of this that he will be happy to depart Australia.
At interview, I asked the applicant what arrangements he had already made for his departure from Australia. The applicant advised that he has a valid passport currently held at Maribyrnong Immigration Detention Centre, had not yet purchased a ticket but is in a position to do so, had advised his family n India of his pending arrival and had organized for himself and his wife to live with his parents in India.
The delegate accepted Mr Singh’s intentions “on face value” and thus found that he satisfied the requirements as set out in subclause 050.212(2).
The delegate’s conclusion does not bind me. However, Mr Singh’s evidence before me was consistent with the account as to his departure intentions and tasks which he wishes to undertake before leaving Australia. Indeed, with the benefit of the inquiries already made and recorded by the delegate, I was able to elicit further detail from Mr Singh at the hearing on the subject of his departure.
Mr Singh informed me of the following. His wife presently has an application for review before the Tribunal for the review of a decision not to grant to her a work (457) visa. He said that his wife does not intend to pursue this application. Instead, she intends to depart Australia with him. She, he informed me, worked a standard working day and was thus not readily able herself to undertake some of the tasks that he wished to complete before they left Australia. Her net income is about $700 per week, which has proved sufficient for them to meet rental expenses and to meet ordinary living expenses. She has continued to support him ever since he was first arrested in 2015 in respect of the charge of indecent assault. His wife wishes to complete her contract with her employer, including, if necessary, giving due notice of cessation. I asked him whether, taking these matters and the tasks that he had mentioned when interviewed by the delegate into account, he thought that he and his wife would be in a position to leave Australia by the end of July, in other words in about six weeks. He stated that he thought that they would be able to do this. Mr Singh’s responses were given in a frank, completely spontaneous manner. I accept as true the additional information which he provided to me. His intentions in relation to departing Australia are not only relevant in relation to subclause 050.212(2). They also provide a time frame within which to measure whether I am satisfied that he would meet condition 8564, “Must not engage in criminal conduct”. Taking Mr Singh at his word, it is more likely than not that he will depart Australia by the end of July this year. Were it otherwise, his departure from Australia would await the final determination of his wife’s work visa application, as he is a dependent of hers.
The Secretary did not submit that I should reach any conclusion as to subclause 050.212(2) than that reached by the delegate. While that does not absolve me from adverting to that requirement, as I have mentioned above, the issues in a review are necessarily informed by the prior administrative history. On the basis of the material before me, I am satisfied that Mr Singh will make arrangements to eave Australia and will do so with his wife. I am satisfied that subclause 050.212(2) is met.
For all practical purposes, that means that the focus of this review is condition 8564. That is because, apart from that condition, I would, like the delegate, be disposed also to impose conditions – 8101 (No work), 8207 (No study), 8401 (report as directed), 8506 (notify of change of address within 2 days). I have noted that the delegate explained each of these conditions to Mr Singh. Though I have considered each of these subjects afresh, nothing which emerged at the hearing or in the material otherwise before me caused me in any way to reach a different view from that of the delegate in relation to these other conditions. In this regard, I respectfully adopt the reasons of the delegate in respect of conditions 8101, 8207, 8401 and 8506. I note that Mr Singh was supplied with these as they formed part of the reasons which the delegate gave for refusing his bridging visa application.

Am I satisfied as to condition 8564, “Must not engage in criminal conduct”?

Based on information in the 2016 AAT decision, I put to Mr Singh in the course of the hearing and he did not dispute the following in relation to his prior conviction and sentence.
On 9 December 2015 Mr Singh was convicted, on a plea of “guilty”, in the Magistrates Court at Melbourne of the offence of indecent assault contrary to the Crimes Act (Vic). He was given a sentence of a Community Corrections Order for 18 months with conditions that:
·He undertake 150 hours of unpaid community service;
·He be supervised by the Secretary of Justice;
·He undergo the following treatment and rehabilitation:
o   Mental health assessment and treatment as directed
o   Offending behaviour program(s) as directed
o   Any other treatment and rehabilitation as directed — assessment for the sex offender program.
Because I considered it to be an accurate summary, I expressly put to Mr Singh at the hearing, and had translated for him, paragraph 29 of the 2016 AAT decision (on the understanding that the reference to “the applicant” is a reference to him):
29. In brief, the information from the police indicates that on 2 April 2015 the complainant, who was affected by alcohol, hailed a taxi outside the Crown casino in Melbourne and asked the taxi driver (being the applicant) to drive her to her home in Clayton. When the trip commenced the complainant told the applicant to start the cab meter but he replied not to worry and that something could be worked out later. During the taxi ride the applicant repeatedly asked the complainant for her phone number and eventually she gave him her phone number. Whilst the applicant was driving towards Clayton he used his left hand to reach behind to where the complainant was sitting and was grabbing at her leg and touched her hand. The complainant kept telling the applicant "no" and eventually pushed his hand away. When the applicant arrived at the complainant's home address he pulled into the driveway. The complainant put some money on the centre console to pay for the taxi fare and then got out of the taxi. The applicant got out of the driver's seat and put his arms around the complainant and hugged her close to his body. He told her I can't take any money, please, let's work something out The complainant told him no and to take the money. The applicant then briefly kissed the complainant's neck. The complainant pushed the applicant away with her hand telling him to leave her alone but he repeatedly stated they could work something out. The complainant twisted her body to get away from the applicant but as she got to the gate the applicant was pressing himself against her trying to cuddle her from behind. The complainant told the applicant to get in the cab and leave her alone. When the complainant got to the front door she again told the applicant to leave her alone. As the complainant opened the front door the applicant pushed her inside against a staircase and the complainant was telling him to get out of her house, but he pushed her up against the railing trying to kiss her neck and face. While the complainant tried to push him off she screamed out to her house mate and when the house mate replied the applicant ran off. The complainant was terrified and in fear by the applicant's behaviour and was visibly upset. Further in light of the discussion with the applicant, the Tribunal also noted that the statement from the complainant was that after he called her several days after this event she then went to police as she had an identifying telephone number, otherwise she had no other basis to identify the applicant and had not attended police previously due to this.
I particularly put to Mr Singh that the police version included that the complainant’s flatmate had heard her cry out. I also put to him that he had entered a plea of guilty and had been represented by a lawyer in the Magistrates Court at the time when that plea was entered and the conviction recorded.
I likewise put to Mr Singh that he had given a different version of events to the Tribunal in 2016 and to the delegate when interviewed. I also informed him that the fact that his earlier accounts differed from the might, if I accepted the police version as put to the court, form a basis for concluding that he was not remorseful in relation to the offence.
I told Mr Singh that I considered that the information (which I have set out in in paragraphs 36, 37 and 38) would, or would form part of the reason, for affirming the delegate’s visa refusal decision. I asked him whether he wished to make any response and, for that purpose, have an adjournment to consider these matters and any such response before making a response.
Mr Singh stated that he did not wish to have any adjournment. He accepted in evidence that the version as translated for him from paragraph 29 of the 2016 AAT decision was the police version as put to the court. He agreed that he had pleaded guilty. I asked him whether his lawyer was a legal aid lawyer. He told me that his lawyer was not from legal aid and that he had paid for private legal representation.
Mr Singh then gave evidence as to his version of the events which had resulted in his being charged, as well as his version as to the circumstances in which he pleaded guilty. The version which he gave me in evidence was consistent with that noted by the delegate at interview as well as that summarized by the Tribunal in the 2016 AAT decision. It is apparent to me that from that summary that Mr Singh gave to the Tribunal greater detail than he did to the delegate or in evidence before me. I do not consider that this was because that he was in any way being evasive either to the delegate or to me. As a matter of fairness, I consider that I should accept as his account the more detailed version as summarised by the Tribunal in the following way:
30.    The applicant gave a different account of events to the Tribunal. In response to the information above, the applicant denied the description of events as set out by the Victorian police. He agreed that he had made a mistake by turning off the meter in his cab. He also stated that there had been a misunderstanding with the complainant and that she had held his hand and he had misunderstood this gesture. He stated that the complainant was not drunk, although she had had a drink. He did not hold her hand but she had held his hand. He told the Tribunal that he had touched her hand. He stated that he did not kiss her or touch her in any other way. The applicant stated that if the events had occurred as the complainant alleged at her house then she would have called the police straight away and not waited several days. He stated that if she had called the police it was open to the police to be able to trace the taxi. He also stated that if the house mate was also concerned about the complainant that he could have also made a call to the police that same day. He stated that he did not put on his meter as it was the last fare of the night and she had told him that she did not have money for a fare and only had a limited amount of money. So he did not turn on the meter and would only take the amount of money that she had offered.
31.    He also stated that the complainant had provided the telephone number to him voluntarily as she was planning to engage his services to take her to and from the city, as required. He stated that he had called her several days after the alleged incident because he was hoping to make a booking as she had told him to ring at a certain time on that day. He stated that he made several calls because she did not respond, at another time the call was disconnected and then on the fourth occasion he sent a message.
32.    The applicant stated that he had not agreed to anything when he spoke with the police. He repeatedly told the Tribunal that he pleaded guilty based on the advice from his lawyer. His lawyer had told him that it would require more money to fight the charges and that there was a possibility of a further charge being laid which the applicant would also have to have the financial resources to fight. He stated that his lawyer advised him that he should plead guilty and this would not affect his migration status in Australia as he would not be sent to prison. The applicant explained that he was not financially strong but financially weak and he was unable to continue to afford to fight the criminal charge. He was also mentally stressed by the ongoing criminal proceedings and he wanted to get out of the process as he was mentally drained. It was for these reasons that he chose to plead guilty.
On an appeal against conviction alleging a miscarriage of justice, the account which Mr Singh gave as to the circumstances in which he pleaded guilty would, if accepted, provide a basis upon which that conviction might be overturned. That is so in both our civilian and military justice systems. The Defence Force Discipline Appeal Tribunal, of which I was for that purpose a member, has twice in recent times had to consider that subject, particularly by reference to the judgment of Brennan, Toohey and McHugh JJ in Meissner v The Queen (1995) 184 CLR 132, at 141–2.[17] There was no such appeal by Mr Singh in respect of his conviction. Even so, it does not automatically follow that, in this administrative review, I must accept that his plea of guilty was an admission freely made of an offence of which he was truly guilty. I have only Mr Singh’s version as to the circumstances of his plea. I do not have any evidence from his then lawyer as to the nature of the advice given to him.
[17] Thompson v Chief of Navy [2015] ADFDAT 1; Angre v Chief of Navy (No 3) [2017] ADFDAT 2.

Though I acknowledge that there is a possibility on the evidence before me that this was not a plea of guilty freely made, I do not consider that to be more probable than not. Mr Singh’s version as to the circumstances of the evening in question does not sit well with the account of the complainant’s flat mate having heard her cry out. In turn, it strikes me as inherently likely that she had a reason for so doing with her version of events providing a plausible reason for that. That persuades me that it is more likely than not that the event occurred as she related it and as summarised in the 2016 AAT decision as the police version given to the court. In turn, that leads me not to be satisfied that the plea of guilty was given in circumstances as related by Mr Singh. I therefore approach this review on the basis that the police account is accurate and that there was a plea of guilty freely made in respect of an offence of which Mr Singh was truly guilty.
That Mr Singh has consistently given a different version is evidence of a lack of remorse. That is relevant to deciding whether I am satisfied that he would abide by condition 8564. That is because I consider that absence of remorse is a factor which is relevant to an assessment of the risk that Mr Singh might, during the period of the bridging visa which he seeks (which would extend until his departure) not comply with the criminal law.
As against that, is the following, which also emerges from the material before me is relevant. Following his arrest and pending his being convicted, Mr Singh was, by court order, on bail. The terms of his bail included that he not approach prosecution witnesses (who included the complainant) or be within 100 metres of the complainant’s address. Mr Singh confirmed in evidence that he had been released on bail on these conditions. He stated that he had abided by these conditions. There is no suggestion whatsoever in any of the material before me that he did other than abide by the terms of his bail. In particular, it is relevant that the Secretary has not put forward any submission, much less any evidence, that Mr Singh was not compliant with his bail. It is inherently likely that, had Mr Singh in any way either in the view of the police breached these bail conditions or not abstained from compliance with the criminal law that he would have been brought before the court in respect of such a breach and also charged with any related later breach of the criminal law. Many months passed between Mr Singh’s arrest and his final conviction.
Also relevant is that, over what is now almost 18 months, Mr Singh has complied with the terms of his sentence. I find that to be the case for these reasons. There is not a hint in the material before me that he has not so complied. He gave evidence that he had complied. The Secretary did not put forward any submission, much less any evidence, as to non-compliance.
There are other matters which I derive from the 2016 AAT decision which are not contradicted by the material before me and which I consider to be relevant. For that purpose, I adopt as my own the following findings of the Tribunal on that earlier occasion (again the reference to “the applicant” is a reference to Mr Singh):
14.    The applicant has held the following visas since his arrival in Australia on 9 September 2008:
•on 9 September 2008 the applicant arrived in Australia on a subclass 572 student visa as a dependent of his wife, Ms Kaur;
•and 24 January 2013 the applicant was granted a subclass 485 skilled graduate dependent visa valid to 24 January 2014;
•On 1 September 2014 the applicant was granted a subclass 572 student visa as a dependent of his wife. This visa was valid until 12 September 2015.
15.    On 11 September 2015 the applicant's wife lodged a subclass 457 temporary work visa application and the applicant was included in the visa application as a combined dependent applicant. On 12 February 2016 a department delegate refused the subclass 457 visa applications by the applicant and his wife. Subsequently, the applicant and his wife initiated an appeal to the Tribunal seeking a review of the decisions to refuse the visas. The subclass 457 visa application was refused on the basis that the applicant's wife did not hold an approved nomination. The related nomination application made by the applicant's wife's employer was refused and the employer has also applied for review by the Tribunal in relation to the nomination refusal decision. The employer's nomination application review and the subclass 457 review application are currently pending before the Tribunal. It may be some months before those review applications are heard and determined.
16.    On 11 September 2015 the applicant was initially granted a bridging A visa in association with the subclass 457 visa application. On 10 August 2016 the visa holder was granted a bridging B visa be as he had planned to travel overseas. The delegate notes in the record of decision that the Bridging B visa remains in effect until final determination of the subclass 457 visa application.
17.    The delegate notes in the decision record that whilst the applicant's wife was granted a student visa and travelled to Australia in 2008, the department's PRISMs records indicate that the applicant's wife did not commence study until 3 May 2010. The applicant provided to the Tribunal documentary evidence showing that his wife undertook studies in Australia at Ozford College of Business between December 2008 and September 2009 in a certificate III in hospitality course. He also stated that his wife undertook a certificate IV and an advanced diploma in hospitality and did study prior to May 2010.
18.    The applicant states that he has not breached any conditions of his visas in the period that he has been in Australia. This is consistent with the delegate's notation that according to the departmental records the applicant has not breach any of his visa conditions since his initial arrival in 2008. The delegate notes, and was confirmed by the applicant, that the applicant has been cooperative in his previous and current dealings with the Department in relation to migration matters. Further the applicant gave evidence, which the Tribunal accepts, that he attended the Department on 4 October 2016 for the purposes of obtaining a bridging E visa as his bridging B visa had been cancelled and it was only at this point that he was detained when attempting to regularise his migration status.
19.    The immigration records indicate the applicant has remained lawfully in Australia since arriving in 2008.
These findings were made in November 2016 at the time when the Tribunal set aside a decision of another delegate of the Minister and substituted a decision not to cancel his subclass 020 (Bridging B) visa. Since then, the Minister, for reasons which the Secretary has chosen not to disclose to me, has decided to make a different decision to that of the Tribunal. Further, as recorded above, though Mr Singh’s review application remains pending in the Tribunal, his evidence, which I accept, is that she does not intend now to pursue this review and, instead, intends to depart Australia with him for India. I accept as true the history as related by the Tribunal in paragraphs 14 to 19 of the 2016 AAT decision.
When I look at Mr Singh’s overall record of compliance with our migration laws and his dealings with Department the conclusion which I reach is that he has been cooperative and either compliant or that he has genuinely sought to be compliant.
At the time when the Tribunal made the 2016 AAT decision, the Tribunal had the benefit of evidence from Mr Singh’s wife and also reports from a medical practitioner and a psychologist. The summary of that offered by the Tribunal on that occasion, which, as a matter of fairness, I consider that I ought to take into account, was as follows:
21. … The applicant and his wife both gave evidence of the emotional impact on her if the bridging visa was cancelled. She told the Tribunal that she was feeling depressed at the moment and feeling lonely and could not concentrate on her work. She stated that she had recently consulted a general practitioner in relation to her symptoms and had been given medication which she has commenced taking. She stated that she is to return in a few days for a further consultation with her general practitioner. She stated that she had not previously gone to a medical practitioner about her mental health. She stated that she is struggling with a depressive mood, cannot concentrate at work, cannot sleep and does not feel like she wants to eat. Her family lives in India and she has no family in Australia. Similarly the applicant gave evidence regarding his wife and the adverse impact on her emotional and mental health state if the visa is cancelled and he remained in detention. He stated about his fear for his wife and her mental health and the adverse impact his detention would have on her, and that she might suffer serious health problems due to her emotional state whilst he is detained.
22. In this regard, the Tribunal also received a letter dated 14 November 2016 from a general practitioner at a medical centre confirming that on 14 November 2016 the applicant's wife consulted with the medical practitioner and reported suffering from a depressed mood, was teary often, suffered poor concentration, disturbed sleep and loss of appetite over a month after the applicant's detention. The practitioner noted that she advised the applicant's wife to start antidepressants and may require psychological assistance.
Mr Singh did not offer any updated medical or psychological evidence but he did tell the delegate on interview the following about his wife, according to the delegate’s summary:
·Currently working
·Not that clever – simple innocent girl
·Feeling lonely & vulnerable
·Friends available to help but also busy.
I have no reason to doubt this account as summarised. It is consistent with the position in relation to Mr Singh’s wife as summarised in the 2016 AAT decision. I note that the Secretary did not seek by submission to contradict it. I accept the delegate’s summary. I also accept as inherently likely, especially in light of her husband’s further placement in immigration detention, that Mr Singh’s wife remains suffering from a depressed mood.
In describing tasks which he wished to perform before leaving Australia Mr Singh told me, as he told the delegate that he wished to receive from his landlord the bond in respect of his and his wife’s rental accommodation. He mentioned to the delegate that the bond was $1000 and that it required about 4 weeks’ notice. The delegate did not doubt this; neither do I.
On the basis of the material before me, I am satisfied that it would inflict emotional hardship on Mr Singh and his wife were he to remain in immigration detention pending his and her departure from Australia. As to that emotional hardship, I do not have any updated medical or psychological evidence to take the professionally reported position beyond that summarised by the Tribunal in the 2016 AAT decision. At that time, the position as summarised was this:
23.The Tribunal had regard to the psychological report dated 8 September 2016 prepared by the applicant's psychologist. The applicant confirmed the report was written as part of his response to the notice of intention to cancel the visa. The psychologist confirmed that the applicant was referred to the psychologist by the GP in 2015, as the applicant was experience symptoms of depression and sleep issues, and that he attended sessions and he experienced an improvement in his symptoms. She notes that in 2016 the applicant instigated attending sessions again as he was experiencing an exacerbation of stress and anxiety symptoms associated with stressors in his life. The psychologist notes the various symptoms that the applicant has exhibited over the period of the consultations but notes that he has demonstrated considerable improvement on the depression symptom scale but is experiencing significant stresses in his life at the time of his last appointment as there had been exacerbation of anxiety and stress. She noted that he is not currently on any medication but has been involved in therapeutic interventions and has been introduced to cognitive behaviour therapy to manage his symptoms of depression and anxiety. She knows that the applicant will continue to have future sessions aimed at assisting him to develop his strategies to manage stress and anxiety and through that his moderate low mood. Finally she notes that although the applicant has made significant improvements in his symptoms of depression he continues to experience symptoms associated with stress and anxiety and he has indicated that he wishes to continue ongoing counselling so he can further develop more adaptive coping. The Tribunal notes this report was prepared on 8 September 2016 prior to the applicant being detained by immigration authorities. The Tribunal is satisfied that the applicant has suffered a psychological condition since 2015 and has been seeking psychological treatment in relation to this condition and that cancellation of his visa has resulted in him being detained thereby exacerbating his psychological condition and he has been unable to seek ongoing treatment with his own personal psychologist. The Tribunal considers that the cancellation of the visa has adversely affected the applicant's ability to manage his psychological condition with his treating psychologist and this is a matter that weighs in favour of the visa not being cancelled.
Though, to my direct observation at the hearing, Mr Singh established a good rapport in the course of the hearing both with the interpreter and with me, it was obvious that his present immigration detention was upsetting to him. It does seem inherently unlikely, having regard to that further period of immigration detention, that it has improved the psychological condition to which the Tribunal referred in the 2016 AAT decision.
Mr Singh derived income as a taxi driver between 2011 and 2015. He told me that he has not worked since. There is nothing to contradict that. I accept his evidence. What he has done, according to his evidence, which I accept, is to undertake unpaid community work as and when required according to his sentence. Given that Mr Singh’s wife is in full time work, it will be more difficult for her to collect from the university the documents which Mr Singh wishes to obtain. Obviously enough, he would be able to do this if at large. His being at large would doubtless also facilitate the undertaking and completion of the other tasks which he wishes to complete before they depart from Australia. That, in turn, would facilitate a departure from Australia without financial hardship for him and his wife.
At the time of the 2016 AAT decision, Mr Singh made reference to and the Tribunal summarised (paragraph 37) studies which he was undertaking. This study was being undertaken in the then context of his staying in Australia at least until the fate of his wife’s review application was known. He did not further refer to these studies in the evidence before me but did, as I have recorded, mention that his wife did not intend to press her review application. The position has changed. Changed though it has, I should record that Mr Singh struck me as an intelligent, articulate man.
At the time of the 2016 AAT decision, the Tribunal had before it what were described (paragraph 36) as “numerous references provided by friends and associates of the applicant and the oral evidence of Mr Wilson attesting to the applicant's good character generally and to his assistance and contribution to others.” Mr Singh did not again seek to tender these but I consider that, as a matter of fairness, I should take into account this summary, especially as the Secretary did not seek by submission to contradict either these references or Mr Wilson’s evidence. What the Secretary did put forward, of course, was that the differing account indicated an absence of remorse and that this, in turn, presented a risk of reoffending which was such as should lead to an absence of satisfaction that Mr Singh would comply with condition 8564, “Must not engage in criminal conduct”.
What is entailed in this review is, in essence, the making of a value judgement as to a risk of a breach of our criminal law by Mr Singh pending his departure from Australia if he is at large in our community. His circumstances are unique but the assessment of risk is hardly a new task either in public administration or in the criminal justice system.
In the context of an appeal concerning the validity of Queensland’s law in respect of the preventative detention, after what would otherwise be a release from prison, of particular sexual offenders, Fardon v Attorney-General (Qld) (Fardon),[18] Gleeson CJ chose to commence that part of his judgement in which he addressed the subject of protection of the community with a reference to two cases ultimately decided in the High Court concerning the criminal, Robert Charles Vincent Veen.[19] Veen had killed a man, had his life sentence reduced on appeal to 12 years imprisonment and, on his release, in circumstances similar to the earlier offence, killed again within about nine months of that release. The Chief Justice observed:
The way in which the criminal justice system should respond to the case of the prisoner who represents a serious danger to the community upon release is an almost intractable problem. No doubt predictions of future danger may be unreliable, but as the case of Veen shows, they may also be right.[20]
[18] (2004) 223 CLR 575
[19] (2004) 223 CLR 575 at [7] and [8]. The cases were Veen v The Queen (1979) 143 CLR 458 and Veen v The Queen (No 2) (1988) 164 CLR 465.
[20] (2004) 223 CLR 575 at [12].
Obviously enough, the circumstances of what I take, on the strength of the police version of events as put to the court, to be Mr Singh’s offending conduct are far removed from Veen’s crimes. That is not in any way to diminish the awfulness of the experience of the complainant at the time or to trivialise the after effect for her. Instead, I remind myself, as did Gleeson CJ in Fardon, that unreliable though predictions of future danger may be, the circumstances of the past can be a predictor of the future. For an Australian judge, even sitting in as I presently do in the Tribunal, there is no more salutary way of reminding oneself about that than to recall the case of Veen.
To keep Mr Singh in immigration detention pending his departure is a form of preventative detention. It is also a restriction on his liberty. There is no formal risk assessment in respect of reoffending by Mr Singh in the material before me. Even if there were, the utility of such assessments is moot and their uncritical reception to the detriment of considering the overall circumstances of an individual case is apt to be fraught.[21] The only absolute protection for the community would be to keep Mr Singh in immigration detention. But the effect of the Act and Regulations is that a value judgement must be made, and, under our law, it must be a reasonable one.
[21] See I R Coyle, The Cogency of Risk Assessments, Psychiatry, Psychology and Law, Vol 18, No 2, May 2011, pp 270-296; D J Cooke and C Michie, The Generalizability of the Risk Matrix on Model Shrinkage and the Misinterpretation of the Area Under the Curve, Journal of Threat Assessment and Management 2014, Vol 1, No 1, 42-55; M Noferi and R Koulish, The Immigration Detention Risk Assessment, Georgetown Immigration Law Journal,2014, Vol 29, pp 45-94; R Koulish, Immigration Detention in the Risk Classification Assessment Era, 2016, Vol 16, No 1, Connecticut Public Interest Law Journal, pp 1-37; P Keyzer (ed), Preventative Detention: Asking the Fundamental Questions (2013), at p 8, p 193 (the whole chapter) p 223 (the whole chapter).

When I look at Mr Singh’s circumstances, I see an absence of remorse. I also see a crime distressing to the victim but not one which our criminal justice system considered to warrant a sentence of imprisonment. I further see an intelligent man who, notwithstanding an encounter with our criminal justice system in respect of a crime against a woman, has retained the support and society of his wife. Perhaps that is because she is persuaded, in a way in which I am not, that his was not a true plea of guilty. I have no evidence of that and it is not for me to make a finding adverse to Mr Singh on the basis of such speculation. What is not speculative is that he has been generally compliant with our migration law and co-operative those who administer it for a lengthy period. Further, not only was a court persuaded that the circumstances of what was at the time an alleged offence or other circumstances not such as to refuse him bail but he also complied with the terms of his release on bail for many months. Yet further, Mr Singh has been at large in our community for many more months while subject to the terms of the sentence imposed upon him by the court. He has complied with the terms of that sentence over that time. There is not a hint that, in that period of some 18 months that he has in any way re-offended in respect of any sexual offence or, for that matter, committed any other offence. Mr Singh is a past offender but he is not a fool. It is in his self-interest and that of his wife to remain compliant with our criminal law during the remainder of his time in Australia. As to what may be the remainder of that time, it is inherently likely at the moment that he will, as he states, depart Australia with his wife by the end of July. That is only some six weeks hence. He has demonstrated both when on bail before and, after his sentence in respect of the offence concerned, that he is disposed to comply with our criminal law and to do so even though he must be taken as having always had a different version of events than those of the complainant. I have no doubt that his release will be emotionally beneficial both to him and to his wife. It will also facilitate their putting their affairs in order before departure. To recite these matters is to show that the considerations are most definitely and self-evidently not all one way.
Mr Singh is not obliged to prove to absolute demonstration that he will comply with condition 8564. Indeed, he is not subject to any formal onus at all. Rather, as I have recited at the outset, I must be satisfied on the material before me what is the correct or preferable decision. When I weigh in balance the considerations to which I have referred in the preceding paragraph, I am satisfied that this is a case where I should be, and I am, satisfied that Mr Singh will comply with condition 8564 for the balance of his time in Australia.
In the event that, contrary to the present, likely position, he and his wife do not depart by the end of July, it is only to be expected that the Minister or a delegate of his will, in the course of the general administration of the Act, make a value judgement in light of why that departure has not occurred, when it is expected to occur and the other circumstances then prevailing about whether Mr Singh ought to remain at large.
Satisfaction as to compliance with condition 8564 being the only material difference between the view I have and that of the delegate, it necessarily follows that the decision under review must be set aside. In the circumstances of this case, I consider that subclause 050.617 requires that the conditions which should be applied in respect of a visa are as I specify them below. As to the reporting requirement condition, I specify that in the expectation that the Minister, acting reasonably, will not specify reporting requirements in a way which would be subversive of the granting to Mr Singh of a visa which allows him to be at large in our community and, in particular, which is subversive of any ability on his part to undertake the tasks which he proposes to undertake before he and his wife depart.

DECISION

The Tribunal sets aside the decision under review and substitutes a decision to grant to Mr Singh a Bridging visa E – subclass 050 on the following conditions:
·8101 – The holder must not engage in work in Australia.
·8207 – The holder must not engage in any studies or training in Australia.
·8401 – The holder must report:
(c) at a time or times; and
(d) at a place
specified by the Minister for the purpose.
·8506 – The holder must notify immigration at least two working days in advance of any change in the holder’s address.
·8564 – The holder must not engage in criminal conduct.

The Honourable Justice J A Logan RFD

Acting President

16 June 2017 at 11:07am

OATH OR AFFIRMATION OF OFFICE
I, , do swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, her Heirs and Successors according to law, that I will truly serve Her in the office of ( insert name of office of member of Tribunal ) and that I will faithfully and impartially perform the duties of that office. So Help Me God!
Or
I, , do solemnly and sincerely promise and declare that ( as above, omitting the words " So Help Me God !").