Singh v Minister for Immigration, Citizenship and Multicultural Affairs

Statutory framework 40 Section 501 of the Act relevantly provides as follows: 501 Refusal or cancellation of visa on character grounds Decision of Minister or delegate - natural justice applies (1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. … (6) For the purposes of this section, a person does not pass the character test if: … (d) in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would: (i) engage in criminal conduct in Australia; or … 41 Section 499(1) of the Act empowers the Minister to give written directions to those who are charged with making certain decisions under the Act. For present purposes, that power has been exercised in the form of what is known as "Direction No. 90 - Migration Act 1958 - Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA" (hereafter, "Direction 90"). 42 The jurisdiction of the Tribunal to hear an application for review of the Delegate's Decision is not presently in question. Likewise, there is no controversy concerning the jurisdiction of the primary judge to hear the Judicial Review Application or the jurisdiction of the court now to hear the present appeal.

The Tribunal's Decision 43 The Tribunal published reasons in support of its decision, which traversed a number of matters, not all of which it is necessary to trace here. At the outset, the Tribunal recognised that its task involved the determination of two central issues: did the appellant fail the character test for which s 501(6) of the Act provides; and, if he did, did the circumstances that attended his Visa Application warrant a conclusion that it should be refused? 44 Before turning to consider matters relevant to those assessments, the Tribunal set out a brief chronology of events (which the primary judge faithfully recited in his reasons for judgment - see above, [38]). It then proceeded to take account of various matters that the appellant had advanced in the hope that his Visa Application would be granted, as well as various matters of which Direction 90 required that account be taken. 45 Specifically, the Tribunal considered the circumstances that led to the appellant's pleading guilty in 2018 to having committed sexual assault. It was noted that the offence took place when the appellant was engaged as a taxi driver. The victim was one of his passengers. It is not necessary here to particularise the appellant's conduct; it suffices to note that the Tribunal did so in its reasons. 46 The Tribunal also made reference to a statutory declaration that the appellant signed in June 2020. It was noted that, by that instrument, the appellant had "…blamed the victim and demonstrated a lack of remorse". That was said to be consistent with what the appellant had later told a psychologist, Mr Cummins, who recalled that the appellant had claimed that he had been "'blackmailed' because of the 'sexual banter'" and that his victim had been "sexually provocative". 47 The Tribunal noted the appellant's acceptance of the fact that the years following his offending had "…been characterised by persistent uncertainty about his visa status". Also noted was the concession made by the appellant's representative that his offending "…falls into the very serious category". Of particular significance, the Tribunal observed (references omitted, formatting original): Under [Direction 90], any finding of guilt relating to sexual offending is viewed very seriously. The Tribunal notes that a person found guilty of Sexual assault under s 40 of the Crimes Act 1958 (Vic) is liable for up to 10 years' imprisonment. The Court's punishment on this occasion, however, is clearly at the low end of available sanctions. The [appellant's] 'other conduct' encompasses past attempts to apportion blame on his victim. This includes during a 2017 police interview and in a Statutory Declaration dated 17 June 2020. He continued to advance the withdrawn consent narrative during a consultation with Mr Cummins in November 2021, and when cavilling about consent at the present hearing. The Tribunal is satisfied the [appellant] has provided false or misleading information to the Department about his offending. The Tribunal finds the totality of the [appellant's] offending and other conduct is very serious. 48 Under the heading, "Risk to the Australian community…", the Tribunal recorded a submission advanced on behalf of the appellant, namely that "…the visa refusal decision relates to 'a temporary visa and therefore any assessment of risk posed by the [appellant] must be confined to the limited period of the visa applied for'". In answer to that submission, the Tribunal noted that the appellant and his wife had indicated that they intend to remain in Australia permanently. It did not accept that "…the risk assessment in this matter must therefore be solely confined to the period of the temporary visa applied for". 49 The Tribunal also considered that the appellant's offending had not been repeated during the time that he had spent in the community after pleading guilty in September 2018. The following observations were made on that score: The Tribunal acknowledges the [appellant] was permitted to remain in the community as a secondary holder on Ms AM's Bridging Visa after his offending. Much of the time since, however, has been contextualised by continuing scrutiny into his visa status. The Tribunal does not accept that the grant of a Bridging Visa persuasively correlates with the [appellant's] recidivism risk, because unlike the present matter, no formal risk assessment is conducted for Bridging Visas. Moreover, there is no evidence why a Bridging Visa was granted instead of the [appellant] being taken into immigration detention. It is not possible to infer, as the Tribunal is invited to do, that it arose from the [r]espondent concluding the [appellant] is 'not a risk to the Australian community'. That is plainly evident from the [r]espondent's submissions and contentions in the present matter. … The Tribunal accepts the [appellant] has spent four years in the community since his court appearance, during which he has remained law-abiding. This must be seen, however, in the context of the visa review processes enlivened by his offending. He has been on notice following his offending that his ability to remain in Australia is under continuing review. This is a contextually different situation to a non-citizen who has not committed a criminal offence and whose visa status is not under continuing review. 50 The Tribunal went on to conclude that the appellant's risk of reoffending, though low, was nonetheless real; and that, when coupled with the very serious nature of the charge to which he had pleaded guilty, that weighed "…moderately against granting the visa". Ultimately, the Tribunal was satisfied that the appellant did not pass the character test and that its discretion to refuse his Visa Application under s 501(1) of the Act (or to affirm the Delegate's Decision to that effect) should be exercised.

The Present Appeal 51 Before the learned primary judge, the appellant advanced four bases upon which he contended that the Tribunal's Decision should be set aside as a product of jurisdictional error, namely: 1. The Tribunal failed lawfully to consider the applicant's argument about having been "tested in the community", in that the Tribunal wrongly thought that at all material times during his "testing in the community" the [appellant] had an outstanding question about his visa status whereas for a substantial portion of the period there was no such question. 2. The Tribunal wrongly failed to confine its attention of any risk of harm posed by the applicant to the term of the visa sought, as required by s 501(1) of the Migration Act 1958 (Cth). 3. The Tribunal failed to draw the only available rational inference from the grant of the bridging visa, being that the Minister through a delegate at an earlier time had been satisfied that the [appellant] would not engage in criminal conduct during the term of that bridging visa. 4. The Tribunal misconstrued or misapplied cl 8.1.1(1)(a)(i) of Direction No 90. 52 The primary judge rejected all four contentions and, by his notice of appeal, the appellant charges his Honour with having erred, in each respect, by doing so. By written submissions advanced in the appeal, the third of those four bases was abandoned. 53 His Honour took the view that the jurisdictional errors about which the appellant complained were, in fact, not established. If any of those conclusions was wrong, it will necessarily follow that his Honour erred and that the appeal should succeed. If they were not wrong, the appeal should fail. The appeal thus turns upon whether or not the Tribunal committed the errors of jurisdiction that the appellant attributes to it. 54 That understood, consideration of the primary judge's reasons may be confined. It is convenient to address each of the three species of error about which the appellant complains.

Ground 1: consideration of submission about having been tested 55 The appellant's first ground of appeal presupposes that the Tribunal failed to consider what he had advanced about the fact that, since his offending occurred (and since he pleaded guilty to it), he had lived without further incident in the community. It is suggested (as it was before the learned primary judge) that the Tribunal proceeded upon the premise that the appellant had, for the entirety of the period following his offending, "…been on notice…that his ability to remain in Australia [was] under continuing review". 56 That, the appellant maintains, was factually incorrect. It was not until several months after he pleaded guilty to sexual assault that his (then) visa was cancelled. That cancellation was set aside in March of 2019. The Visa Application was made shortly thereafter and it was not until 2 June 2020 that the appellant was issued with a notice of intention to consider its refusal on character grounds. There were, the appellant maintains, periods following his offending during which he was not "…on notice…that his ability to remain in Australia [was] under continuing review". Insofar as its reasoning proceeded upon a contrary premise, the appellant maintains that the Tribunal failed to consider important evidence or a submission of substance, by reason of which its decision was beyond what it had jurisdiction to make. 57 Further, the appellant contends that the Tribunal's reasoning discloses no consideration of the fact that, throughout the period between March 2019 (when the cancellation of his previous visa was set aside) and June 2020 (when he received the notice of intention to consider refusal of his Visa Application), he lived at large in the community without any reoffending. That is said to have been a matter to which the Tribunal ought to have turned its attention; and its failure to do so is said to reflect jurisdictional error because its reasons disclose no consideration of an important aspect of the submission that he had advanced. 58 The appellant's submission must be rejected. There can be no credible suggestion that the Tribunal laboured under any misapprehension as to the chronology of relevant events. They were recited accurately in its decision (above, [44]). From its observation that "[m]uch of the time since [the appellant's offending and guilty plea] has been contextualised by continuing scrutiny into his visa status", the Tribunal must be taken to have been aware that there were some times during that period over which no "continuing scrutiny" was at play. The later use of the phrase "continuing review" must be construed under the light of that observation. Read fairly, the Tribunal's reasons cannot properly be understood wrongly to suggest that the appellant's visa status was the subject of singular, constant review in the period following his offending or guilty plea. More accurately - and as the Minister submits - the Tribunal must be taken to have understood that it was the subject of recurring assessments, which were live for much of that period. 59 The Tribunal's observations reflect the nature of the submission that the appellant advanced. In support of his Visa Application, the appellant highlighted that he had lived incident-free in the community since September 2018 (when he pleaded guilty to the charge of sexual assault). He made no reference to any period (including the period spanning March 2019 to June 2020) in which his status as a visa holder was or was not under consideration. 60 The Tribunal's failure expressly to refer to any such period, then, is of no moment. It was not obliged to express findings about - nor otherwise to expose in its written reasons some consideration of - a submission that was not advanced. 61 In any event, the suggestion that the appellant's ability to remain in Australia was not "under continuing review" between March 2019 (when the Visa Application was made) and June 2020 (when he received notice that consideration was being given to its refusal) seems somewhat generous. It is to be recalled that the appellant's previous visa was cancelled in consequence of his offending. That cancellation was set aside only days before the present Visa Application was made. The appellant's ability to remain in Australia otherwise than as the holder of a bridging visa hinged, at least to some (if not a very significant) degree upon the success of that application. The appellant must surely have appreciated that any reoffending that transpired during the period over which his Visa Application was under consideration would likely not assist it. The Tribunal's observation that he was "…on notice following his offending that his ability to remain in Australia [was] under continuing review" seems consistent with that obvious truth. 62 Regardless, the Tribunal did not fail to understand, consider or engage with the appellant's contention. The learned primary judge reached the same conclusion and, with respect, correctly so. The first ground of appeal should fail.

Ground 2: temporal connection to period of visa 63 The appellant next submits that the Tribunal's Decision was a product of jurisdictional error insofar as the Tribunal, when assessing the risk that the appellant might pose if allowed to remain in Australia, failed to confine that assessment to the period over which the visa for which he had applied would remain valid if granted. 64 The learned primary judge addressed the contention as follows (Primary Judgment, [37]-[44]): The [appellant's] construction of s 501(6)(d)(i) seeks to read words of a temporal limitation, that the person does not pass the character test if, during the period of the visa there is a risk that the person would engage in criminal conduct in Australia. The [appellant] concedes as much in his submissions…[he submits] that the words "allowed to "remain in Australia" is implicitly confined by the term of the visa". The Tribunal…was correct to reject reading in words of temporal limitation to s 501(6)(d)(i) of the Act. No such implication arises from the plain terms of the section. There is no reason to read in the words that the [appellant] seeks to imply. The circumstances in which a court may read words into a statute are limited. It may be done to correct simple, grammatical, drafting errors that would defeat the object of the provision, but it may not be done in order to fill gaps in legislation: Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531 per French CJ, Crennan and Bell JJ at [37]-[38]. It has been observed that "[i]t is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do": Thompson v Goold & Company [1910] AC 409 per Lord Mersey at 420; JJ Richards & Sons Pty Ltd v Fair Work Australia (2012) 201 FCR 297 per Flick J at [51] and Maritime Union of Australia v Fair Work Commission (2015) FCR 15 per North, Flick and Bromberg JJ at [24]. The Court must prefer the interpretation of a statutory provision that would best achieve the purpose or object of the statute: s 15AA of the Acts Interpretation Act 1901 (Cth). Significance must be given to the ordinary or grammatical meaning of a legislative provision in the sense that there must be a reasoned basis to depart from that ordinary meaning which is both afforded and confined by a consideration of context: SZTAL v Minister for Immigration & Border Protection (2017) 262 CLR 362 per Kiefel CJ, Nettle and Gordon JJ at [14] and Gageler J [38]. I accept the Minister's submission that the temporal limitation that the [appellant] seeks to imply is so specific, and at such a large degree of variance from the words in fact used, that it cannot be concluded that the words were inadvertently overlooked in the drafting of the provision. Nor are the words necessary to achieve the apparent purpose of the Act. Section 501(6) of the Act forms part of a statutory scheme within the Act which advances the object of regulating the presence in Australia of non-citizens, in the national interest, and the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by the Act: ss 4(1) and 4(4) of the Act. The majority of the High Court in Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 (Falzon), comprising Kiefel CJ, Bell, Keane and Edelman JJ accepted that the purpose of s 501 of the Act is to protect the Australian community. In Falzon at [89], Gageler and Gordon JJ also observed that, "the purpose of cancelling a visa pursuant to s 501(3A) is to exclude from the Australian community a class of persons who, in the view of Parliament, should not be permitted to remain in Australia": see also Ratu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 286 FCR 89 per Farrell, Rangiah and Anderson JJ at [56]. I accept the Minister's submission that the context and purpose of the Act, and s 501 in particular, do not limit the refusal power to consideration of risk of criminal offending in Australia "during the period of the visa". The context and purpose of the Act support a broader construction, that the risk being assessed is the risk of a person engaging in criminal conduct in Australia at any time. The Tribunal was correct…to reject the [appellant's] argument that the risk assessment must be solely confined to the period of the temporary visa. It follows that Ground 2 must be rejected. 65 I detect no error in that reasoning; indeed, I agree with it. 66 Section 501(6) holds that a person does not pass the character test if (amongst other possibilities) there is a risk that he or she will engage in criminal conduct in the event that he or she were allowed to enter or remain in Australia. Here, of course, the appellant was already in Australia at the point that his Visa Application was denied. At issue, then, was whether there was an attendant risk of criminal conduct in the event that he remained. 67 Section 501(6)(d) does not specify a point or points in time in respect of which a risk of criminal conduct should or might be assessed. It speaks only of what might occur "in the event" that a person were allowed to "enter or…remain in Australia" in consequence of the granting or non-cancellation of a visa. Entry into Australia is, by nature, instantaneous. It is nonsensical to assess the risk of offending upon entry in any limited temporal sense. Such an assessment turns, instead and very simply, upon what might happen after (which is to say, in the event that) entry occurs. There is nothing about the relevant statutory context that requires a different approach in respect of a person who "remain[s] in Australia". The assessment of the hypothetical - that is, what might happen in the future - is simply not limited, implicitly or otherwise, in the way for which the appellant contends. 68 The learned primary judge did not err by rejecting the appellant's contention. The second ground of appeal must fail.

Ground 4: misconstruction of Direction 90 69 By his fourth ground of appeal, the appellant contends that the Tribunal erred by concluding that his offending was "very serious". It is said that, in reaching that conclusion, the Tribunal misunderstood and misapplied paragraph 8.1 of Direction 90. 70 As has been identified, Direction 90 concerns (amongst other things) the making of decisions under s 501 of the Act. Paragraph 6 of Direction 90 confers upon the Tribunal (amongst others) an obligation to "…take into account the considerations identified in sections 8 and 9, where relevant…" Paragraph 8 identifies some "primary considerations" to which attention must be given. One of them is the "protection of the Australian community from criminal or other serious conduct". Paragraph 8.1 of Direction 90 identifies additional matters of which the Tribunal must take account when considering the protection of the Australian community. Paragraph 8.1(2) reads as follows: (2) Decision-makers should also give consideration to: (a) the nature and seriousness of the non-citizen's conduct to date; and (b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct. 71 Paragraph 8.1.1(1) of Direction 90 identifies some matters of which the Tribunal was, for present purposes, obliged to take account when considering the nature and seriousness of the appellant's criminal offending. Relevantly, it provides as follows: 8.1.1 The nature and seriousness of the conduct (1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to the following: (a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community: (i) violent and/or sexual crimes; … f) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending; … 72 The appellant's submission is straightforward enough. He notes that, upon his plea of guilty to sexual assault in September 2018, he was ordered to pay a fine of $2,500.00, with no conviction recorded against him. That, he says, ought to have inclined the Tribunal to conclude that his offending was objectively at the lowest end of the spectrum of seriousness; or, at any event, not "very serious". His written submission summarised the contention as follows: [I]t is submitted that the Tribunal did not correctly understand and apply the Direction, in that the Tribunal treated the task at cl 8.1(2)(a) as though it was to be determined by an application of cl 8.1.1(1). Even if that is not established, at least, the Tribunal did not correctly apply cl 8.1(2)(a). Additionally, or perhaps alternatively, it might be said that whilst the appellant's offending engaged the "very serious" designation in the normative standard set by cl 8.1.1(1), the weight to be given thereto was an open question in this review, to be answered (at least in part) by the seriousness (viewed on a scale constructed for this purpose) of the particular offending and other conduct. The Tribunal erred in not approaching its task in this way. 73 In assessing the seriousness of the appellant's criminal offending, the Tribunal was obliged to take into account the effect of paragraph 8.1.1(1)(a) of Direction 90: namely, that the Australian Government and the Australian community consider sexual crimes to be very serious. Doing so did not relieve the Tribunal of the obligation conferred upon it by paragraph 8.1(2) of Direction 90: the Tribunal remained separately obliged to consider for itself the seriousness of the appellant's offending and to bring that assessment - informed by the statement of executive policy for which paragraph 8.1.1(1)(a) stands - to bear upon its decision making. At issue presently is whether it did so; or whether, as the appellant submits, it simply "…treated the task at cl 8.1(2)(a) as though it was to be determined by an application of cl 8.1.1(1)". 74 The appellant's contention is not pitched at the level of legal unreasonableness. Nonetheless, he maintains that the Tribunal should be understood to have misconstrued paragraph 8.1 in the way that he alleges because, objectively, there is no other way that it might have formed the view that his offending was "very serious". That conclusion, he says, was not open in light of the nature of his offending and the sanctions that his guilty plea attracted. 75 Contrary to what the appellant submits, the Tribunal's conclusion that the appellant's offending was "very serious" was not a mere or automatic restatement of what is recorded in s 8.1.1(1) of Direction 90. It is to be recalled that the Tribunal reasoned as follows (references omitted): The [appellant's] 'other conduct' encompasses past attempts to apportion blame on his victim. This includes during a 2017 police interview and in a Statutory Declaration dated 17 June 2020. He continued to advance the withdrawn consent narrative during a consultation with Mr Cummins in November 2021, and when cavilling about consent at the present hearing. The Tribunal is satisfied the [appellant] has provided false or misleading information to the Department about his offending. 76 A footnote attached to the reference to the appellant's "other conduct" referred broadly to paragraph 8.1.1 of Direction 90. The sentence noting that the appellant had "…provided false or misleading information...about his offending" concluded with a footnote that referred to paragraph 8.1.1(1)(f) of Direction 90. Immediately thereafter, the Tribunal recorded its conclusion that "…the totality of the [appellant]'s offending and other conduct is very serious." 77 It is clear that the Tribunal's assessment of the seriousness of the appellant's offending traversed beyond the fact recorded in paragraph 8.1.1(1)(a): namely, that the Australian Government and community regard sexual crimes as very serious. En route to its conclusion, the Tribunal took account of other matters, including some of which it was required to take account by paragraph 8.1.1(1) of Direction 90. 78 Moreover, it was open to the Tribunal to assess the appellant's offending as "very serious" notwithstanding that it attracted a sanction at the low end of what sexual assault might otherwise attract. The sanction meted out to the appellant was one of many considerations by which an assessment of the seriousness of his offending was properly open to be made. Others included the appellant's "past attempts to apportion blame on his victim" and the fact that he "provided false or misleading information…about his offending" (above, [47]), both of which spoke to the appellant's remorse for and insight into his conduct. 79 The Tribunal's assessment of the seriousness of the appellant's offending was made consistently with the requirements of paragraph 8.1 of Direction 90. The misconstruction or misapplication of which he complains did not occur and the learned primary judge did not err by concluding as much. The appellant's fourth ground of appeal must fail.

Conclusion 80 None of the appellant's grounds of appeal has been made good. The appeal should be dismissed with costs. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden.

RAPER J: 81 I have had the advantage of reading the reasons of Mortimer and Snaden JJ in draft. I agree with the orders Snaden J proposes and his reasons for ground 1. As regards grounds 2 and 4, I concur with the reasons of Mortimer J. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment of the Honourable Justice Raper.