Singh v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1416
•18 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1416
File number: SYG 1990 of 2024 Judgment of: JUDGE D HUMPHREYS Date of judgment: 18 December 2024 Catchwords: MIGRATION – Administrative Appeals Tribunal – Partner (Provisional) (Class UF) (subclass 309) visa – whether the Tribunal understood and considered applicant’s claims when deciding to exercise its discretion under s 116 of the Act – no jurisdictional error made out – application dismissed. Legislation: Migration Act 1958 (Cth), ss 36A, 116
Migration Regulations 1994 (Cth), reg 2.43, Schedule 2, 100.221(4)(c)(i)
Cases cited: AFD21 v Minister for Home Affairs [2021] FCAFC 167, 393 ALR 398
BCK21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 475
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Minister for Immigration and Citizenship v Lay Lat (2006) 151 FCR 214
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 539
Division: Division 2 General Federal Law Number of paragraphs: 44 Date of hearing: 10 December 2024 Place: Parramatta Counsel for the First Applicant: Mr Jones Solicitor for the Applicant: Ejaz Khan (Juris Australia Lawyers) Counsel for the First Respondent: Ms Juarez (Minter Ellison) Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1990 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GURSIMRAN SINGH
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
18 DECEMBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to read “Minister for Immigration and Multicultural Affairs’.
2.The name of the Second Respondent be substituted to “Administrative Review Tribunal”.
3.The application is dismissed.
4.The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,900.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
INTRODUCTION
This is an application for judicial review, filed on 20 August 2024, seeking review of a decision of the Administrative Appeals Tribunal (“the Tribunal” ) as it was then, dated 23 July 2024 affirming a decision of a delegate of the Minister (“ the delegate”) to cancel the applicant’s Partner ( Provisional) (Class UF) (subclass 309) visa ( “ the visa”).
BACKGROUND
The applicant is a citizen of India. The provisional partner visa was granted on 9 August 2021.
On 19 August 2021 the applicant arrived in Australia as the spouse of Harpreet Kaur.
On 19 January 2024, the Minister’s department issued a Notice of Intention to Consider Cancellation (NOICC) under s 116 of the Migration Act 1958 ( Cth) (“the Act”). This NOICC was issued on the basis that the Department had information that the applicant had been convicted of a number of criminal offences. Therefore, there existed grounds for cancelling the visa under s 116(1)(g) of the Act and reg 2.43 of the Migration Regulations 1994 (“the Regulations”).
On 19 January 2024, the applicant’s representative responded to the NOICC attaching a letter of the same date, a report from a clinical psychologist and documentation relating to the applicant’s reoffending.
On 13 February 2024, the delegate decided to cancel the applicant's partner visa pursuant to s 116 of the Act.
On 20 February 2024, the applicant applied for review of the delegate's decision by the Tribunal. On 22 April 2024, the applicant attended a hearing before the Tribunal to give evidence and present arguments. On 23 July 2024, the Tribunal affirmed the decision under review.
For the reasons set out below, the application must be dismissed.
THE ADMINISTRATIVE APPEALS TRIBUNAL’S DECISION
The applicant applied for review of the delegate’s decision at the Tribunal on the basis that his visa should not be cancelled as, at the time of the criminal offences he was convicted of, he was acutely mentally ill and was receiving treatment for his illness, as well as having a child who is an Australian citizen
At [6] the Tribunal noted that the issue before them was whether a ground for cancellation is made out as prescribed by s 116 and if so, whether the applicant’s visa should be cancelled.
In assessing whether the ground for cancellation exists, the Tribunal instructed itself as to the prescribed grounds for cancellation as set out in reg 2.43, specifically reg 2.43(oa) which prescribes a ground for cancellation to be where a visa holder has been convicted of an offence against a law of the Commonwealth, State or Territory, regardless of the penalty imposed.
The applicant was convicted of three counts of stalk/intimidate with intention to cause fear or physical harm, three counts of common assault and one count of stalking/intimidation and assault. He was sentenced to a community correction Order for a period of two years for stalking/intimidation and assault: [8]-[9]. The Tribunal found a ground of cancellation existed under s 116(1)(g). However, this section does not require mandatory cancellation and the Tribunal must then consider whether the visa should be cancelled.
In exercising its discretion, the Act and Regulations do not specify what matters must be considered, therefore the Tribunal had regard to the circumstances of the case, matters raised by the applicant and the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
The Tribunal detailed the circumstances of the applicant’s offending at [12]- [23]. His final offence was the breach of an Apprehended Violence Order (AVO) made on 26 May 2022, which prevented the applicant from assaulting, stalking, intimidating or harassing his former wife, Ms Kaur. The breach is described at [19] of the decision as follows:
At about 3.30am on 27 October 2022 Mr Singh was knocking on the back door of Ms Kaur's unit and calling her name. She did not answer and sent him text messages to leave her and the child alone, to stop knocking on the door and to leave. At about 10.15am she woke up and saw Mr Singh in the house. She said he could not come in there, that this was her house and she wanted him to leave. He apologised and left. After he left Ms Kaur noticed blood on the bathroom floor and Mr Singh's telephone.
The Tribunal considered the applicant’s evidence about the offending at [24]-[28] and specifically the incident with his wife on 27 October 2022. The Tribunal noted that the applicant was unable to recognise any problems with his behaviour and interaction towards his wife, and his behaviour that resulted in his arrest. The applicant ultimately blamed his then wife for not letting him see his child and his sister-in-law for interfering.
At [29] – [40] the Tribunal had regard to the purpose of the applicant’s travel and stay in Australia and whether he had a compelling need to travel or remain in Australia. It was inferred, in the applicant’s favour, that he is in Australia for the purpose for which the visa was granted. He has a child of his relationship with Ms Kaur therefore the exception ( cl 100.221(4)(c)(i) of Schedule 2 to the Migration Regulations 1994) applied to him. The applicant claimed that he had suffered family violence during the course of his relationship with Ms Kaur however the Tribunal did not consider that he had made a valid claim of family violence.
The applicant also provided a referral to a psychiatrist and a report from a Doctor at the Western Community Mental Health Team, dated 17 April 2024, stating that the applicant’s initial diagnosis was reactive psychosis but with a strong differential diagnosis of bipolar disorder type 1. The report stated that the applicant had engaged appropriately with the service, had been compliant with medication, but is likely to require long term management of his mental health and would benefit from the stability provided by a permanent visa.
The Tribunal considered a Department of Foreign Affairs and Trade Report on India dated 29 September 2023, which indicated that “Indians living with mental illness and/or neurodiversity face a moderate risk of societal discrimination.” The Tribunal noted this information, however found that the applicant’s mental illness is persuasive in relation to the hardship he may experience in India but found that it was not a compelling reason for him to remain in Australia [39].
The Tribunal found that although the applicant had a child in Australia, he did not currently have any contact, despite wanting to, and the degree to which he may establish contact in the future is unknown. Therefore, despite the child being a compelling reason to remain in Australia, this factor was given limited weight.
The Tribunal had regard to the degree of hardship that may be caused if the applicant’s visa was to be cancelled and made the following findings:
·The applicant would be able to access accommodation and financial support from his parents if he returned to India and he is capable of working, as evidenced by the farm work he undertook in Australia [47]-[48].
·The applicant would face emotional hardship and stress if returned to India without his wife and child, which would be exacerbated by his mental illness.
·If the applicant’s visa remains cancelled he will be detained. This detention may lead to an exacerbation of the symptoms of his mental illness.
From [51]-[69], the Tribunal assessed the circumstances in which the ground of cancellation arose and if the cancellation arose because of a relationship breakdown, whether the relationship has broken down as a result of family violence.
The Tribunal considered whether there were mandatory legal consequences. At [74] the Tribunal noted that the applicant can apply for a protection visa if he considers he is unable to return to Indi a because he is owed protection obligations.
The Tribunal assessed non-refoulement as an international obligation that would be breached as a result of the cancellation. It instructed itself as the principle of non-refoulement and the matters that would be considered if, under s 36A of the Act, the applicant applied for a protection visa. Specifically, that his claims to be owed protection would be considered before any character related considerations.
At [78] and [79] the Tribunal stated:
78.Vague claims were made on Mr Singh's behalf that he would face difficulty accessing mental health services and medication if he were to return to India, and that his parents were elderly and could not care for him. His sister said that if he returns to India, he will be mentally stressed because people will ask him why he has returned and will ask about his wife and child and as a result of this stress he may not take his medication. She also said that if he is required to leave Australia he will be stressed and may try to take his own life.
79.Given the vague and general nature of these claims with no supporting material I do not consider on the material before me that Australia's non-refoulement obligations would be breached if Mr Singh were to return to India. However, Mr Singh may apply for a protection visa and can make further representations with supporting material at that time.
The Tribunal noted that the best interests of the applicant’s daughter was not the only primary consideration in the matter, given the applicants reoffending and associated risk to the community should he reoffend and his limited contact with his child.
In concluding its reasons, the Tribunal found at [97] specifically in regard to the applicant’s mental illness and prior offences, that:
….. While Mr Singh is receiving treatment for a mental illness, he was unable to identify the problems with his behaviour in the past and the risk remains that he will repeat the behaviour in the future. This is risk and his prior convictions outweigh the other factors in favour of not cancelling his visa, and I consider his visa should be cancelled.
GROUNDS OF JUDICIAL REVIEW
The applicant’s Amended Application filed on 12 November 2024 contains one ground of judicial review which is as follows; less particulars, noting that particulars (c) and (e) were not pressed at the hearing before the Court:
1.The Tribunal made a jurisdictional error in considering whether to exercise its discretion to cancel the Applicant’s visa under s 116(1) of the Migration Act 1958 (Cth).
THE APPLICANT’S SUBMISSIONS
The applicant complains that the Tribunal did not consider harm to the applicant in India and instead deferred this consideration to any application for a protection visa. In doing this the Tribunal applied and misapprehended the effect Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 (“M1) which in the circumstances did not, without relevant qualification support postponement. Although the Tribunal correctly recognised that it must “read, identify, understand, and evaluate representations made about non-refoulement” as required by M1, there are joint reasons and subsequent footnotes linked to a passage contained at [39] of M1 that indicate the need to consider the allegations of fact immediately and without awaiting the protection visa phase.
The applicant relies on AFD21 v Minister for Home Affairs [2021] FCAFC 167, 393 ALR 398 (at [55]-[56] per Kenny, Kerr and Wheelahan JJ) to highlight that allegations of fact underlying claims concerning the risk of harm posed to an applicant upon returning to their receiving country must be considered. The applicant does concede that a decision-maker is entitled to defer consideration of international non-refoulement obligations to the protection visa stage, as those allegations may constitute a reason for revocation of the cancellation decision, or be a reason to exercise discretion in s 166(1)(g) of the Act.
The applicant contends that the general principles of M1 operate in the following case, however the Tribunal’s decision in this matter cannot be saved, as the decision-maker undertook the necessary consideration irrespective of non-refoulement.
The Tribunal did not assess potential harm to the applicant from not having mental health treatment in India, as demonstrated by their passing comments at [39] and [49] of the decision. The assessment of potential harm is wholly deferred to a protection visa application.
The Tribunal’s findings that the applicant’s allegations of fact were vague or uncorroborated does not injure the applicant’s case as it does not take away from the “absence of requisite consideration by the Tribunal”. The Tribunal also had before it “conceivably supportive material”, being the DFAT Report on India.
THE FIRST RESPONDENT’S SUBMISSIONS
The first respondent notes that in relation to particular (d) of ground one the applicant contends that the Tribunal was obliged to consider the applicant’s claim of harm regardless of whether it gave rise to a case for protection.
The Tribunal plainly considered the applicant’s claims of harm in its decision at [2], [23], [36]–[39], [52]–[61], [67]–[68], [96]. It gave detailed reasons that show a great deal of consideration to the applicant’s mental health and related evidence. Ultimately, however the Tribunal gave other factors such as the applicant’s own limited insight to his offending greater weight. No jurisdictional error arises.
CONSIDERATION
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a court conducting judicial review was described in this manner:
An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.
In WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 539 at [46] the following was said:
The Tribunal is not a Court. It is an administrative body operating in an environment which requires an expeditious determination of a high volume of applications. ..Its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected from a court of law.
In BCK21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 475 at [19] Abraham J said the following:
It is first appropriate to recall that a Tribunal’s reasons should be read fairly, and as a whole. The Tribunal’s reasons should not be construed minutely, with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272; Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 400 ALR 417 at [38].
It is not in dispute between the parties that grounds existed to cancel the applicant’s partner visa under s116(1)(g) of the Migration Act 1958. It is also not in dispute that the applicant suffers from mental health issues. Having found that grounds existed for cancelling the applicant’s visa, the Tribunal then embarked on an orthodox consideration of various considerations as to whether the applicant’s visa should in fact be cancelled.
The Court does not accept that the Tribunal deferred its consideration of the applicant’s mental health issues on the basis that this would be considered further, if the applicant applied for a protection visa. The Tribunal noted the applicant’s claims were ‘vague and of a general nature’ as to the difficulties the applicant would face in obtaining treatment for his mental health issues should he return to India. It is well established the Tribunal is not required to accept uncritically any and all claims made by an applicant: ( see: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451).
Further, it was for the applicant to provide his evidence and arguments in sufficient detail to enable the Tribunal to reach the requisite state of satisfaction: (see: Minister for Immigration and Citizenship v Lay Lat (2006) 151 FCR 214 at [76]). The Tribunal is under no obligation to “afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence”: ( see: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [82]).
The Tribunal was plainly aware of the caution needed to be exercised in relation to issues that might arise as to possible persecution of the applicant, based on his mental health issues should he return to India, given the footnote at the bottom of page 6 of the decision record that specifically refers to Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17 at [30]
The Tribunal however made a clear finding that the applicant’s mental health issues did not represent a compelling reason to remain in Australia. This was precisely the task it was required to undertake in the context of the issue that was before it. It properly outlined the evidence that was available to it in considerable detail but concluded that the factors in favour of cancellation outweighed those in favour of not cancelling the applicant’s visa.
The Court is satisfied that the Tribunal read, identified, understood and evaluated the representations before it and took those reasons properly into account in considering whether there was another reason why the cancellation decision should not be revoked. The Tribunal was simply not satisfied that the grounds for non-cancellation were sufficient to warrant his visa not being cancelled.
DETERMINATION
The sole ground of judicial review has no merit. The application must be dismissed.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 18 December 2024
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