SINGH v Minister for Home Affairs

[2019] FCCA 640

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 640

Catchwords:
MIGRATION – Applicant for student visa charged with rape - cancellation of visa pursuant to s. 116(1)(e)(ii) – no compelling reasons not to cancel the visa – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss. 116, 476.

Gong v Minister for Immigration & Anor [2016] FCCA 561
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Applicant: GURMEET SINGH

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL 

File Number: BRG 732 of 2018

Judgment of: Judge Egan

Hearing date: 20 February 2019

Date of Last Submission: 20 February 2019

Delivered at: Brisbane

Delivered on: 20 February 2019

REPRESENTATION

Solicitors for the Applicant: Mr. Sharma of Sharma Lawyers

Counsel for the Respondent: Ms Wheatley

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The amended application for review filed on 25 October 2018 be dismissed. 

2. The applicant pay the first respondent’s costs of and incidental to the application for review, fixed in the amount of $7,467.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

No. BRG 732 of 2018

GURMEET SINGH

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of India who was granted a (subclass 500) Student visa on 2 March 2018. Also on 2 March 2018, the applicant was charged with rape. The bench charge sheet in respect of that charge appears at court book, page 89. On 12 March 2018, the applicant was given a notice of intention to consider cancellation of his visa pursuant to the provisions of section 116 of the Migration Act 1958 (Cth) (‘the Act’).

2. Later on 12 March 2018, the applicant was notified of the decision to cancel his visa pursuant to the provisions of section 116(1)(e)(ii) of the Act. Section 116(1)(e) provides as follows:

   Power to cancel

   (1)  Subject to subsections (2) and (3), 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.

1. On 16 March 2018, the applicant made application to the Administrative Appeals Tribunal (‘the Tribunal) for review of the delegate’s decision to cancel the visa.  On 9 May 2018, the Tribunal issued a summons to the Commissioner of the Queensland Police Service in relation to the applicant, and on 16 May 2018 documents were provided by the Queensland Police Service to the Tribunal pursuant to the issue of such summons.  On 17 May 2018, the Tribunal provided an opportunity for the applicant to comment on, or respond to, the information provided by the Queensland Police Service.

2. The applicant was also invited to attend a hearing on 11 June 2018.  On 21 May 2018, the applicant accepted and returned the invitation to the hearing. On 8 June 2018, the applicant’s representative provided written submissions to the Tribunal.  The hearing took place on 11 June 2018, at which time the applicant provided a statutory declaration of one Ms Amandeep Kaur who was also present at the hearing.  After the hearing the applicant’s representative provided additional material, being a statutory declaration of the applicant, an email from Australian Border Force in relation to the applicant’s immigration detention, and amended written submissions.

3. On 15 June 2018, the Tribunal affirmed the decision of the delegate to cancel the applicant’s (subclass 500) Student visa. On 17 July 2018, the applicant filed an application for review of the decision of the Tribunal pursuant to the provisions of section 476 of the Act. The applicant relies upon an amended application filed on his behalf on 25 October 2018. The grounds for review are set out as follows:

   1. That the Administrative Appeals Tribunal erred in the interpretation of the law or its application.

   Particulars: The Tribunal’s interpretation that the Migration Act gave the Minister, and the Tribunal, the power to cancel visa on the basis of a charge alone is inconsistent with Judge Smith’s interpretation in Gong V Minister for Immigration [2006] FCCA 561.

   2. That the Administrative Appeals Tribunal did not take into account relevant considerations.

   Particulars: a) The Tribunal did not take into account that the applicant was granted bail by the Magistrates Court; (b) Judge Smith held in Gong case that for inference of reasonable basis for the charges to be drawn, there must be some evidence of the facts and that merely a person being charged does not give rise to such inference; (c) an officer of the First respondent told the applicant that if he signed the Request for Removal from Australia, they could talk to the police, and he could go home soon.

   3. That the administrative Appeal Tribunal Took into account irrelevant considerations.

   Particulars: (a) Tribunal took into account the Applicant’s statement about his respect for his customs; (b) the Tribunal took into account an attributed fact that he was pressured to sign a document.

   4. The Tribunal’s decision was unreasonable

   Particulars: The Tribunal’s decision is inconsistent with the decision of His Honour Judge Smith in Gong Case which decision has not been set aside. Reasoning in Gong’s case has been applied by the tribunal in other cases involving cancellation under s.116(1)(e).

4. At the hearing before this Court, submissions were made on behalf of the applicant to the effect that central to the submissions made on behalf of the applicant to the Tribunal were submissions relating to a decision of his Honour Judge Smith in the case of Gong v Minister for Immigration & Anor [2016] FCCA 561, particularly at paragraphs [47]-[56] inclusive of the reasons of His Honour. It was submitted before this Court that the facts in Gong’s case were analogous to those of the case before the Court today, and the Court was urged to quash the decision of the Tribunal for similar reasons as advanced by his Honour Judge Smith. In particular, the Court was taken to [55]-[56] of the reasons in Gong which are as follows:

   [55] However, I do not think that the mere fact that charges have been laid gives rise to any inference that there was a reasonable basis for those charges.  That is an objective assessment of the factual basis for the charges and a comparison of that with the integers of the offence.  In order for that inference to be drawn, there must be some evidence of the facts upon which the charges were laid and an assessment of those against the elements of the offence.

   [56] This is one of the aspects of the Tribunal’s reasons that makes me suspect that the Tribunal did draw upon the facts contained in the police fact sheet and statement.

5. During the course of the hearing today, it was considered by Mr Sharma, the solicitor acting on behalf of the applicant, that there was no similar reference by the Tribunal in this case to the charges laid against the applicant on 2 March 2018 as having a “reasonable” basis.  Counsel for the first respondent, Ms Wheatley, referred the Court to paragraph 41 in Gong’s case which relevantly provided as follows:

   [41] While it is true, as the applicant submits, that the word “risk” entails an element of futurity, the addition of the words “or may be” and “or might be” by the 2014 amendments undermines the balance of the applicant’s arguments.  Simply put, the fact that section 116(1)(e) is engaged where the Minister is satisfied that a visa holder’s presence “may be a risk” to certain matters means that there does not have to be, as the applicant suggests, any direct, solid or certain foundation before the power to cancel a visa can arise.  In other words, it can arise on the possibility that some event occurred in the past.  In this case, that possibility was supported by the laying of the charges.  That is to say that that fact alone was not legally irrelevant to the question posed by section (1)(e).

6. At [6]-[8] inclusive of its reasons, the Tribunal set out the bases on which a cancellation of a visa in circumstances such as the present might be made. At [9]-[22] the Tribunal closely examined the circumstances of the present case, before concluding that there were grounds for cancellation of the applicant’s visa pursuant to the provisions of section 116(1)(e)(ii) of the Act. The Tribunal recorded at [9] of its reasons that on 2 March 2018 the applicant was charged with the serious offence of rape of a woman, which allegedly occurred on 24 February 2018. The Tribunal noted that the applicant had his visa cancelled on 12 March 2018. It further noted that the applicant strenuously denied the charge and claimed that he ought to be considered as innocent until proven guilty.

7. The Tribunal at [11] of its reasons found that the Tribunal’s role was not to ascertain the applicant’s innocence or guilt of the alleged crime with which he had been charged, but rather to establish if grounds existed for the cancellation of his visa, and that if such grounds did exist, whether there were any compelling reasons not to cancel the visa.  The Tribunal found that it had considered the applicant’s submissions and rejected the proposition that grounds for cancelling the applicant’s visa had not been made out.  The Tribunal noted at [13] of its reasons that the nature of the charge was serious and grave, and that the charge had not been withdrawn.

8. At [17] of its reasons, the Tribunal recorded that the applicant’s representative agreed that the charge laid against the applicant was a crime of violence, the seriousness of which ought not to be diminished. At [18] of its reasons, the Tribunal found that it was not satisfied that the applicant was not a risk to the community. Finding that the applicant had been charged with a crime under the laws of Queensland, the Tribunal found that it was satisfied that the applicant is, or may be, or would or might be, a risk to the Australian community. It further found at [21] of its reasons that the applicant had not satisfied the Tribunal that he understood what behaviour may or might constitute a risk to another person. For the reasons advanced by it, the Tribunal was satisfied that there were grounds open for cancellation of the visa pursuant to section 116(1)(e)(ii) of the Act.

9. At [23]-[39] of its reasons, the Tribunal set out its responses and findings to a number of discretionary matters which it considered for the purpose of the exercise of its discretion as to whether there were compelling reasons not to cancel the visa.  Considerations which it took into account were as follows:

   (a)     The purpose of the visa holders travel and stay in Australia, whether the visa holder had a compelling need to travel to or remain in Australia.

   (b)     The extent of compliance with visa conditions.

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

   (d)     The circumstances in which the 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.

   (e)     Past and present behaviour of the visa holder toward the Department.

   (f) Whether there would be consequential cancellations under section 140 of the Act.

   (g) 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.

   (h)     Whether any international obligations, including non-refoulment and best interests of the children as a primary consideration, would be breached as a result of the cancellation.

   (i)     If it’s a permanent visa, whether the former visa holder had formed strong family, business or other ties.

   (j)   Any other relevant matters.

10. The Tribunal, after examining each of the considerations last referred to in respect of the applicant, did not find a basis for finding that there were compelling reasons not to cancel the visa.  As to the grounds of review, it cannot be said that the Tribunal failed to have regard to Gong’s case.  The mere fact that a Tribunal has not referred to each and every aspect of submissions made to it during the course of an administrative hearing does not establish that there has been any jurisdictional error on the part of the Tribunal.

11. The Tribunal adopted a two-step approach under the headings, “Does the ground for cancellation exist?” and, “Consideration of discretion.”  The Tribunal appreciated the gravity of the offence with which the applicant had been charged.  The Tribunal considered whether the applicant is, or may be, or would or might be, a risk to the Australian community, finding that such bar had not been cleared by the applicant.  The Tribunal at [11] of its reasons took into account matters specifically addressed by his Honour Judge Smith in [41] of his Honour’s reasons in the Gong case.  The Tribunal in this case did not descend into an assessment as to whether there were any reasonable bases for the laying of the charges against the applicant, as was the case in Gong, and on that basis alone, this case is distinguishable from Gong.  There is no merit to ground 1 of the application for review.

12. The second ground of review relates to an alleged failure to consider the relevancy of the applicant’s having been granted bail in respect of the charges laid against him.  The Tribunal at [12] of its reasons recorded that it had considered the applicant’s submissions and those of the applicant’s representative, there rejecting the proposition that grounds for cancelling the applicant’s visa had not been made out.  It must be taken that the Tribunal, when having stated that it considered the applicant’s submissions and those of the applicant’s representative, had considered the matters put to the Tribunal by both of them, both generally in relation to the applicant’s position, as well as in relation to the applicant having been granted bail.  There is no merit to ground 2 of the application for review.

13. As to the assertion that the Tribunal took into account irrelevant considerations, it is specifically asserted that the Tribunal took into account the applicant’s statement about his respect for his customs and that the Tribunal took into account the assertion that he had been pressured to sign a document.  There is no evidence in relation to the pressuring of the applicant to sign any document.  Otherwise, the Tribunal dealt with the applicant’s assertion that relations between himself and his fiancée (also of Indian citizenship background) was one of chastity, and it otherwise dealt with such assertion in a reasonable and considered way.  There is no merit to ground 3 of the application for review.

14. As to the fourth ground, it is asserted that the Tribunal’s decision was unreasonable because of the alleged departure of the Tribunal from the reasons of the decision of his Honour Judge Smith in Gong.  A consideration of Gong has already been referred to above.  Whether or not his Honour Judge Smith ought to have disregarded the Tribunal’s use of the word “reasonable” in Gong on the basis that it was not a material finding, is a moot point.

15. It cannot be said that no other rational or logical decision-maker could not have made the same decision as the Tribunal did.[1] 

    [1]     See Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR

    611 at [130]

16. Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

    [66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion.  That area resides within the bounds of legal reasonableness.  The Courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a Court's view as to how a discretion should be exercised for that of a decision-maker.  Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

    [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts (the result) is unreasonable or plainly unjust".  The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a Court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

17. There is no merit to ground 4 of the application for review.  The application for review in its entirety is without merit and is dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 14 March 2019