Singh v Minister for Immigration

[2018] FCCA 3561

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3561

Catchwords:
MIGRATION – Student visa – discretion to cancel visa – whether grounds existed – exercise of discretion – where applicant charged with assault against wife – where criminal charges discontinued – where applicant alleges lack of procedural fairness – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.116(1)(e)(ii) & (3), 359A, 375A and 476(1)

Cases cited:

Gong v Minister for Immigration and Border Protection [2016] FCCA 561

Applicant: HARKIRAT SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 120 of 2017

Judgment of: Judge Heffernan

Hearing date: 5 November 2018

Date of Last Submission: 5 November 2018

Delivered at: Adelaide

Delivered on: 11 December 2018

REPRESENTATION

The Applicant: In person with an interpreter

Counsel for the Respondents: Mr D O'Leary

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The Application is dismissed.

2. The applicant is to pay the costs of the first respondent fixed in the amount of SEVEN THOUSAND, FOUR HUNDRED AND SIXTY SEVEN DOLLARS ($7,467).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 120 of 2017

HARKIRAT SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review made pursuant to s.476(1) of the Migration Act 1958 (Cth) (‘the Act’) of a decision made by the Administrative Appeals Tribunal (‘the Tribunal’) on 1 March 2017. That decision affirmed an earlier decision of a delegate of the first respondent cancelling the applicant’s Subclass 573 Higher Education Sector visa pursuant to s.116 of the Act.

2. The notice of application does not identify a ground of judicial review, but the affidavit filed by Mr Singh at the time of filing the application makes the following complaint about the fairness of the Tribunal hearing.  Relevantly, the applicant says in that affidavit:

   “I provided all the information and documents requested by the tribunal member.  He had not given me an opportunity for studying in Australia which would help me get better future back in my country.  This decision would have great impact on my life and will spoil my future.  But the tribunal officer had not given me fair chance in reviewing my application, so I believe that the AAT made an unfair decision on my application for review.”

3. The applicant appeared before me unrepresented but with the assistance of an interpreter in the Punjabi and English languages.

4. At the outset of proceedings the applicant sought to rely upon an affidavit and annexures that he filed in this Court on 4 August 2017.  Counsel for the first respondent objected to my having regard to those materials.  None of the materials annexed to the affidavit were before the Tribunal at the time of the hearing.  They are materials subsequently obtained by the applicant with a view to explaining what he regards to be relevant background facts.  As the material had not been before the Tribunal I declined to read the affidavit.

5. The background to the cancellation of the applicant’s visa and the Tribunal hearing itself has been helpfully summarised by the first respondent in its outline of submissions.  That summary was not disputed by the applicant, and, accordingly, I have paraphrased it below.

Background

1. Mr Singh arrived in Australia on 16 August 2016.  He had been granted a Class TU Subclass 573 Student (Temporary) Visa on 4 August 2016.  For the purposes of that visa he was a dependent of his wife, Ms Kaur.  She was studying in Australia and had been since May 2015.  The applicant had married Ms Kaur in India on 9 December 2015.  On 13 September 2016, the Department of Immigration and Border Protection were notified by the South Australia police that the applicant had been charged with two counts of aggravated assault against his wife.  These were alleged to have been committed on 25 August 2016 and 10 September 2016.  He was charged on 13 September 2016.

2. The Department sent the applicant a Notice of Intention to Consider Cancellation (‘NOICC’) of his visa pursuant to s.116 of the Act. That Notice brought the applicant’s attention to s.116(1)(e)(ii) of the Act which allows for cancellation of a visa if the Minister is satisfied that “the presence of its holder is or may be, or would or might be, a risk to ... the health or safety of an individual or individuals”.  The applicant responded to the NOICC through his legal representative.  He denied the charges and alleged that his wife was blackmailing him to provide money under the threat of having him deported if he did not.

3. A delegate of the Minister cancelled the applicant’s visa on 8 December 2016.  At the time the delegate cancelled the visa the criminal charges had not been the subject of a trial or otherwise finalised. 

4. The applicant lodged an application for a merits review with the Administrative Appeals Tribunal on 12 December 2016. The applicant was advised through his representative of a date for the Tribunal hearing and was invited to make submissions. He was also informed at that time that the Tribunal intended to obtain all relevant documents and files from the Department.

5. On 16 December 2016, a certificate was issued to the Tribunal by a delegate of the Minister under s.375A of the Act. On that same day submissions were provided to the Tribunal on behalf of the applicant.[1]  In those submissions his solicitor strenuously denied the offences alleged against the applicant and informed the Tribunal that he had negotiated a resolution of the criminal proceedings on behalf of the applicant whereby the charges would be withdrawn if Mr Singh entered into an intervention order without making any admissions.

   [1]     Court Book (‘CB’), pp 31 & 32.

6. On 18 January 2017, the applicant was sent an invitation to attend a hearing.[2]  The hearing took place on 14 February 2017, and the applicant was represented by an agent.  The applicant was given leave by the Tribunal to provide further information after the hearing to explain to it why it should not exercise the discretion to cancel his visa.  After the hearing the solicitor who had represented the applicant in the criminal proceedings wrote to the Tribunal confirming that the charges had been withdrawn and that the applicant had voluntarily entered into an intervention order in which Ms Kaur, his wife, was the protected person.  The solicitor advised the Tribunal that no admissions had been made in relation to the charges and submitted that the intervention order did not indicate guilt of those offences.  The applicant’s representatives provided further correspondence to the Tribunal on 22 and 24 February 2017.

   [2]     CB pp 46 & 47.

7. The Tribunal affirmed the decision to cancel the applicant’s visa. A consideration of the Tribunal’s reasons demonstrates that it identified the correct statutory provisions in the Act. The Tribunal also told the applicant’s agent during the hearing about the existence of the s.375A certificate.[3] In doing so it told the applicant’s agent that information that was relevant to the matter and which was subject to the certificate had already been provided to the Tribunal by the applicant at the hearing. The Tribunal noted that the agent did not make any submissions on that matter.

   [3] CB p 80 at para [6].

8. The Tribunal gave a detailed consideration of the claims and evidence and noted that the applicant denied the allegations of assault. It also acknowledged that it had been told that the criminal charges had been withdrawn, and it accepted the evidence about the circumstances in which the charges had been withdrawn.[4] During the course of the hearing the Tribunal specifically raised with the applicant his future plans for study in light of the fact that he already had a Masters of Business Administration. It also questioned him about his previous student visa applications in Canada. It found that he had failed to disclose that he had previously been refused a Canadian student visa, and the Tribunal found that that indicated he had not been forthcoming about his past migration history.[5]

   [4] CB p 82 at para [28].

   [5] CB p 85 at para [50].

9. The Tribunal relied on the existence of the intervention order as demonstrating that there remained a possible threat to the safety of Ms Kaur even though the criminal charges had been withdrawn. It found that a ground for cancellation did exist under s.116(1)(e) of the Act and in the exercise of its discretion under s.116(3) considered the relevant circumstances of the applicant’s case and a range of general matters.[6]  The Tribunal came to the conclusion that the applicant’s relationship with Ms Kaur had ended and that as a result the grounds for his visa no longer existed and found that he had been refused his own student visa by the Department.

   [6]     CB pp 84 to 86.

10. The applicant made brief oral submissions before me.  For the most part those submissions restated the background facts from his perspective. He clarified the nature of his complaint about the decision by saying that he had not been given a fair chance to prove his innocence in front of the Tribunal. He submitted that since coming to Australia he had been treated like a criminal. The effect of his submission was that the Tribunal had made its decision on the assumption that he had committed criminal acts of assault.

11. Counsel for the first respondent, Mr O’Leary, submitted, correctly in my view, that there were two steps involved in the Tribunal’s consideration of this matter.  Firstly, to establish whether or not there was a ground for cancellation and, secondly, the consideration of the discretion as to whether or not to cancel the visa.  The first respondent submitted that the Tribunal had referred to a relevant authority in relation to this matter, namely, Gong v Minister for Immigration and Border Protection[7] in which the Court made the following observation:

    “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 sub-s.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 sub-s.116(1)(e).”

    [7] [2016] FCCA 561 at para [41].

12. It was not necessary, Mr O’Leary submitted, for the decision-maker to be satisfied that a person is guilty of a criminal offence or even that the charges had a solid foundation in fact, given the breadth of s.116(1)(e). I accept that submission. Further, the first respondent submitted, once again correctly, that the Tribunal did not rely simply on the fact that charges had been laid against the applicant. It also relied on the fact that an intervention order had been put in place.[8]

    [8] CB p 82 at para [25].

13. I accept Mr O’Leary’s submission that the Tribunal appears to have directed itself correctly as to the law.  The Tribunal found that there was an unresolved dispute between the applicant and his spouse and that it extended to her family in India.  I am satisfied that there was no error in the Tribunal concluding that the existence of the intervention order was relevant to a possible threat to Ms Kaur, and that for that reason a ground for cancellation existed.

14. When the Tribunal considered the discretion to cancel the visa it is quite clear that it considered a range of matters beyond the fact of the withdrawn criminal charges and the fact of the intervention order. It also considered the previous visa applications made by the applicant to Canada, the fact that he had not disclosed previous visa refusals, and his intentions with respect to undertaking further studies. As I have already noted, the Tribunal considered a number of categories of information. As the first respondent submitted, there were no specific or mandatory criteria that had to be addressed in exercising the discretion of whether to cancel the visa. The range of matters considered by the Tribunal was relatively extensive. The question remains whether it was open to the Tribunal to affirm the cancellation of the visa.

15. I am satisfied that the findings of the Tribunal, and the manner in which it exercised the discretion, was within the lawful discretion given to a decision-maker under the statute.  I am also satisfied that the central contention of the applicant that he was assumed to have been guilty of criminal offences by the Tribunal is not made out. 

16. During the course of his submissions, the applicant made a brief reference to s.375A of the Act. This case can be distinguished from the line of authorities in which the existence of the certificate was not brought to an applicant’s attention. In this matter the applicant was made aware of it, and his agent was given an opportunity to comment on that matter but did not do so. I am not satisfied that any procedural unfairness arose as a result of the way in which the Tribunal dealt with the certificate.

17. Further, I accept the submission of Mr O’Leary that insofar as the Tribunal was obliged under s.359A to give an applicant information that would be the reason or part of the reason for making its decision, that the applicant was not occasioned any procedural unfairness by reason of non-compliance with that section because subsection (4)(b) disapplies that requirement where the relevant information has been provided by the applicant. That was the case here, as is clear from the Tribunal’s reasons.[9] I am not satisfied that jurisdictional error has been demonstrated by the applicant. I dismiss the application.

    [9] CB p 80 at para [6].

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Associate: 

Date:  11 December 2018