Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

background facts 4 The Applicant is a 31-year-old citizen of India whose parents, relatives (save for his brother) and friends still live in India. The Applicant completed an undergraduate degree in India and first arrived in Australia to undertake postgraduate study in November 2015. Apart from a month-long return visit to India in 2017, he has lived in Australia continuously for six years. 5 The Applicant's wife who will be referred to as "Ms AM", arrived in Australia in March 2016 to undertake post-graduate study. The Applicant met Ms AM at university, and they married in April 2017. Ms AM completed a postgraduate degree in 2019 followed by a professional year program in 2020. Ms AM commenced part time work in October 2021. Ms AM is presently on a Bridging Visa awaiting the outcome of a Temporary Graduate Visa application. Ms AM shares a home with the Applicant, her sister, and the Applicant's brother. 6 The Applicant's brother will be referred to as "Mr SG". Mr SG arrived in Australia in 2019 and completed vocational studies as a house painter. Mr SG currently works as a driver and holds a Temporary Graduate Visa. 7 The Applicant has one other sibling, a sister who was in Australia on a student visa before returning to India in late 2020. 8 The Applicant claims to have a cousin from India that is currently residing in Australia, who he described during the hearing before the Tribunal as a "distant relative". 9 A chronology of the Applicant's visa history and offending in Australia is as follows: (a) 8 November 2015: Applicant arrived in Australia as the holder of a Student - Higher Education (subclass 573) visa (Student Visa) but withdrew from his university studies after a year. The Applicant was subsequently included as a secondary visa holder (as his wife's dependent) and was granted a Student Visa - Higher Education (class TU subclass 500) (Further Student Visa). (b) 16 August 2017: While working as a taxi driver, the Applicant was involved in an incident with a passenger in the early hours of the morning. This resulted in him being arrested, charged, and found guilty of sexual assault. (c) 1 September 2017 to 30 November 2017. Applicant committed three traffic offences. (d) 6 December 2018: Minister cancelled the Applicant's Further Student Visa. This decision was set aside in March 2019. (e) March 2019: Ms AM applied for a Temporary Graduate Visa, which included the Applicant. (f) 2 June 2020 - April 2021: Minister advised the Applicant consideration was being given to refuse his visa application on character grounds and invited him to respond. Applicant provided responses through his representative. (g) 11 October 2021: Visa application was refused under s 501(6)(d)(i) of the Act. (h) 15 October 2021: Applicant applied to the Tribunal to review the visa refusal decision. 10 On 3 January 2022, The Tribunal affirmed the Delegate's decision. The Tribunal provided reasons for its decision on 4 January 2022 (Reasons).

tribunal's decision 11 The Tribunal set out the background to the application in its reasons (Reasons) at [15]-[18] and summarised the relevant legislative framework as well as Direction 90 with respect to the Applicant's claim. The Tribunal identified that there were two issues to be determined. First, whether the Applicant failed the character test under s 501(6)(d)(i) of the Act; and second, if he did fail the character test, whether the Tribunal should refuse to grant the visa to the Applicant after applying the Direction to the specific circumstances of the case: Reasons [33]. 12 The Tribunal summarised the Applicant's evidence of his life in Australia and future aspirations: Reasons [36]-[40]. The Tribunal summarised the Applicant's offending; his claim to be remorseful; his rehabilitation; protective factors and recidivism risk and prospective repatriation to India: Reasons [36]-[55]. The Tribunal also summarised the evidence of the Applicant's wife; the Applicant's brother; the Applicant's friends and a psychologist: Reasons [56]-[84]. 13 The Tribunal considered the parties' submissions about whether the Applicant passed the character test at Reasons [85]-[88]; and made the following findings and observations: (1) The Tribunal found aspects of the Applicant's evidence to be inconsistent and unpersuasive, including by reason of his ongoing attribution of responsibility for the offending to the victim. The Tribunal was also concerned about the veracity of Applicant's remorse and rehabilitation: Reasons [96]. (2) The Tribunal was concerned that parts of the psychologist's risk assessments were based on an incorrect account of the offending. The Tribunal was unpersuaded by the psychologist's optimistic views of the Applicant's risk of further offending: Reasons [100]-[101]. (3) The Tribunal acknowledged that the Applicant was permitted to remain in the community on the bridging visa after his offending, but did not consider that this correlated with the Applicant's risk of recidivism and was not persuaded to draw an inference that, in granting a bridging visa, the Minister had concluded that the Applicant was not a risk to the Australian community: Reasons [103]. (4) The Tribunal did not accept that the Applicant had established that he represented a "low" risk of recidivism that was comparable to descriptors like "negligible", "minimal" or "trivial". The Tribunal found that the Applicant failed to pass the character test: Reasons [104]. 14 The Tribunal then considered the exercise of the discretion to refuse the visa by reference to Direction 90. 15 The Tribunal found that the protection of the Australian community from criminal or other serious conduct weighed moderately against granting the visa at Reasons [120]. The Tribunal reached this finding after considering the following at Reasons [108]-[119]: (1) The Applicant's representative conceded that the offending fell into the very serious category: Reasons [108]. The Tribunal also acknowledged that under paragraph 8.1.1(a)(i) of Direction 90, any finding of guilt relating to sexual offending is viewed very seriously: Reasons [109]. The Tribunal noted the maximum sentence available for sexual assault under s 40 of the Crimes Act 1958 (Vic) and that the Applicant's sentence was "clearly at the low end of available sanction": Reasons [109]. The Tribunal found that the totality of the Applicant's offending and other conduct (including providing false or misleading information to the Department about his offending) was very serious: Reasons [111]. (2) The Tribunal considered that the nature of harm, should the Applicant's sexual offending against a stranger be repeated, is potentially very serious: Reasons [114]. The Tribunal found that the protective factors that the Applicant submitted would prevent him from reoffending were present at the time of the offence and did not prevent him from offending on that occasion: Reasons [115]. (3) The Tribunal considered the Applicant's submission that the assessment of risk must be confined to the limited period of the visa that he had applied for. However, the Tribunal did not accept that the risk assessment must be solely confined to the period of the visa because of the Applicant's stated intention to remain in Australia permanently: Reasons [117]. (4) The Tribunal accepted that the Applicant had "spent four years in the community since his court appearance, during which he has remained law-abiding", but went on to say that this must be seen 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 was under continuing review: Reasons [118]. (5) The Tribunal found that the potential for further offending was "low but nevertheless real": Reasons [119]. 16 The Tribunal then considered the remaining primary considerations as follows: (1) The Tribunal gave neutral weight to the family violence consideration as there was no evidence of family violence committed by the Applicant: Reasons [121]. (2) The Tribunal found that it was in the best interests of the Applicant's friends and four minor children that the discretion is exercised not to refuse the Applicant's visa but gave this consideration only very slight weight in favour of granting the visa: Reasons [122]-[125]. (3) The Tribunal gave moderate weight to the expectations of the Australian community in favour of refusing the visa: Reasons [126]-[134]. 17 The Tribunal in relation to the other considerations made the following findings and observations: (1) The Tribunal found that Australia's international non-refoulement obligations were not enlivened and did not place any weight on this consideration: Reasons [135]-[156]. (2) The extent of impediments, if removed, weighed in the Applicant's favour, but only slightly so: Reasons [157]-[175]. (3) There was no evidence about the impact of the decision on the victim of the Applicant's offending: Reasons [176]. (4) The Applicant's links to the Australian community weighed slightly in favour of granting1 the visa: Reasons [177]-[182]. 18 The Tribunal then concluded by finding that the discretion under s 501(1) of the Act should be exercised to refuse to grant the visa to the Applicant. The Tribunal's reasoning was that because the primary considerations of the protection of the Australian community and the expectations of the Australian community, considerably outweighed the combined weight given to the primary consideration of the best interests of minor children and the other countervailing considerations and as a consequence the Tribunal affirmed the delegate's decision: Reasons [189] and [190].

Ground 1 19 The Applicant, before the Tribunal, submitted that despite the Applicant's offending he had been allowed to remain in the community and he had not committed further offences, and his rehabilitation had thus been "tested in the community". In considering this submission, the Tribunal at Reasons [118] accepted that the Applicant had spent four years in the community since his court appearance and during this time he remained law abiding but observed that: this must be seen, however, in the context of the visa renew 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. 20 The Applicant submits that the Tribunal at Reasons [118] denigrates the Applicant's submission which led to the point having substantially diminished impact. The Applicant submits that this was not lawful. 21 The Applicant submits that the context referred to by the Tribunal at Reasons [118] is misconceived and wrong. 22 The Applicant submits that between 8 March 2019 (when Tribunal set aside decision to cancel student visa) and 2 June 2020 (when the notice of intention to consider refusal temporary visa under the character regime was given), a period of over 14 months, the Applicant was not "on notice" that his ability to remain in Australia was under continuing review, or review of any kind. The Applicant submits that he was not on any kind of conditional licence. He had no reason to think, and no way of knowing, that the Department of Home Affairs would take up the issue of his offending after the Tribunal had determined that he should continue to hold a visa. 23 The Applicant submits that in failing to understand this, the Tribunal failed to consider, or understand, important evidence before the Tribunal. The consequence of this error, in the Applicant's submission, was to dramatically affect in an adverse way the weight to be given to the Applicant's demonstrated rehabilitation.

Consideration - Ground 1 24 I do not accept that the Tribunal failed to adequately consider the Applicant's submission that he had been allowed to remain in the community and that he had not committed further offences and his rehabilitation had thus been "tested in the community". The Tribunal first considered the Applicant's rehabilitation in the community at Reasons [103] where the Tribunal observed: The Tribunal acknowledges the Applicant 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 Applicant'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 Applicant being taken into immigration detention. It is not possible to infer, as the Tribunal is invited to do, that it arose from the Respondent concluding the Applicant is "not a risk to the Australian community". That is plainly evident from the Respondent's submissions and contentions in the present matter. (Emphasis added.) 25 The reference in the above paragraph to "Much of the time" demonstrates that the Tribunal was aware of the Applicant's visa history and offending in Australia which the Tribunal set out at Reasons [17]. The Tribunal's Reasons do not display any misapprehension about the timing of the Applicant's visa grants and cancellations and the Applicant's offending. The Tribunal's Reasons at [103] and the use of the words "Much of the time" indeed confirm that the Tribunal understood that the scrutiny into the Applicant's visa status had not spanned the entire period in which he was in the community. This is the context in which the term "continuing review" is used at Reasons [118]. It does not mean an uninterrupted ongoing visa assessment process, but rather, refers to the periodic assessments which took place over much of the time since his offending. 26 A fair reading of the Reasons at [17], [103] and [118] demonstrate that the Tribunal was under no misapprehension about the periodic nature of the visa assessment process to which the Applicant was subject. 27 The Tribunal did not fail to consider the claim that the Applicant's rehabilitation had been "tested in the community". The Tribunal engaged with that claim but was ultimately not convinced that it addressed the Tribunal's concerns about the Applicant's risk of re-offending. 28 I detect no error in the Tribunal's reasoning and, as a consequence, Ground 1 must be rejected.

Ground 2 29 The Applicant's submits that the Tribunal ought to have confined its consideration of the Applicant's risk of further offending to the period in which the Temporary Graduate Visa would last. 30 The Applicant submits that under s 501(1) of the Act, the decision to be made was whether to refuse to grant "a visa", on the basis that the person fails the character test. The relevant aspect of the character test provided: "a person does not pass the character test if, in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would engage in criminal conduct in Australia." 31 The Applicant submits that there are two aspects of this statutory arrangement that are relevant. The first is that the relevant statutory activity is to refuse a visa. The second, relevantly, is that the basis to do so is contingent on the following concept: "in the event the person were allowed to remain in Australia…". 32 The Applicant submits that the concept of being "allowed to remain" in Australia is not used at large. It is used in the context of visa cancellations or refusals. The term for which a person is being allowed to "remain in Australia" is implicitly confined by the term of the visa. 33 The Applicant submits that if any future visa application is made by a person (such as the Applicant), consideration of the character test can occur at that time. 34 The Applicant submits that it follows that the Tribunal failed to act on a correct understanding of the law, in that it misapplied s 501(1) of the Act. 35 The Applicant further submits that the terms of Direction 90, identified by the Tribunal at Reasons [116], are irrelevant. Direction 90 must conform to the statute. In any event, the Applicant submits that Direction 90 is too vague to be useful on this point, and seems to be directed to situations where, for example, the person holds a permanent visa but intends to leave Australia soon.

Consideration - Ground 2 36 Ground 2 concerns the proper construction of s 501(6)(d)(i) of the Act which provides: (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 … 37 The Applicant'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 Applicant concedes as much in his submissions [16], where the Applicant submits that the words "allowed to "remain in Australia" is implicitly confined by the term of the visa". The Tribunal at Reasons [117] 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 Applicant seeks to imply. 38 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]. 39 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]. 40 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]. 41 I accept the Minister's submission that the temporal limitation that the Applicant 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. 42 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. 43 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. 44 The Tribunal was correct at Reasons [117] to reject the Applicant'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.

Ground 3 45 The Applicant submits by its ground 3 that 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 Applicant would not engage in criminal conduct during the term of that bridging visa. 46 The Applicant submits that the grant of a bridging visa associated with the initial cancellation of the Temporary Graduate Visa (in December 2018) justified an inference that, at that time, a delegate of the Minister was satisfied that the Applicant would abide by the conditions of his visa. The Applicant submits that this inference must be correct, otherwise the bridging visa could not have been granted pursuant to cl 050.223 of Schedule 2 to the Migration Regulations 1994 (Cth)): The Minister is satisfied that, if a bridging visa is granted to the applicant, the applicant will abide by the conditions (if any) imposed on it. 47 One of the conditions of the bridging visa was "Condition 8564 Must not engage in criminal conduct": Reasons [85]. The Applicant submits that in December 2018, a delegate of the Minister was satisfied that the Applicant would not engage in criminal conduct for the term of the bridging visa. 48 The Tribunal found in its Reasons at [103] that "It is not possible to infer, as the Tribunal is invited to do, that it arose from the Respondent concluding the Applicant is not a risk to the Australian community". The Applicant submits that finding was wrong; and on the contrary, it was the only lawfully available conclusion which could be made. The Applicant submits that this was an error of law as it was not rationally open to reject the Applicant's submission for the reason given by the Tribunal. The Applicant submits that such a finding is irrational, or it is a failure to engage intellectually with the submission. The Applicant further submits that it is a misunderstanding of the regulations applicable to the grant of a bridging visa. 49 The Applicant submits that the Tribunal also said, in respect of the bridging visa, that "unlike the present matter, no formal risk assessment is conducted for bridging visas". The Applicant submits that there is no evidence before the Tribunal to support this statement, either generally, or in relation to this bridging visa.

Consideration - Ground 3 50 The issue for determination by the Tribunal was whether, at the time of making its decision, there was a risk that the Applicant would engage in criminal conduct in Australia in the event the Applicant were allowed to remain in Australia. The Tribunal had to determine that issue itself and was not bound by previous decisions and was required to form its own opinion as to whether the Applicant satisfied s 501(6)(d)(i) of the Act. That is the task which the Tribunal undertook. 51 The Tribunal had no evidence before it why a bridging visa was granted instead of the Applicant being taken into immigration detention. The Tribunal, at Reasons [103], was not prepared to infer that the grant of a bridging visa arose because the Minister must have concluded that the Applicant was "not a risk to the Australian community". There may have been other reasons. 52 It was open to the Tribunal to refuse the inference contended for by the Applicant. The Tribunal was correct to reject the Applicant's submission that the only inference that could be drawn by the grant of a bridging visa was that the Minister concluded that the Applicant was "not a risk to the Australian community". The Tribunal's reasoning discloses no error and Ground 3 must be rejected.

Ground 4 53 The Applicant submits that the Tribunal, at Reasons [108]-[111], examined the nature of the Applicant's offending and concluded that "The Tribunal finds the totality of the Applicant's offending and other conduct is very serious." This reasoning, in the Applicant's submission, flowed from a purported application of paragraph 8.1.1(1)(a)(i) of the Direction, which relevantly provided: 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; … 54 The Applicant submits that the Tribunal's conclusion, at Reasons [111], does not arise from the application of Direction 90. The Applicant submits that his conduct could not be considered "very serious" given the penalty imposed was a fine of $2,500 and was without conviction. The Applicant submits that the Tribunal has misunderstood the application of paragraph 8.1.1(1)(a)(i) of Direction 90 or reasoned, irrationally, to "convert" the conduct of the Applicant, which was objectively at the lowest end of the spectrum of seriousness, to the highest end of the spectrum being - "very serious".

Consideration - Ground 4 55 The Applicant contends that the Tribunal's conclusions at Reasons [111] that "The Tribunal finds the totality of the Applicant's offending and other conduct is very serious" arises from a misapplication of paragraph 8.1.1(1)(a) of Direction 90 or as a result of irrational reasoning. 56 The Tribunal considered the nature and seriousness of the Applicant's criminal offending or other conduct as was required by paragraph 8.1.1 of Direction 90 having regard to the matters identified in sub-clauses 1(a) to (g) of paragraph 8.1.1. The Applicant seeks to limit the consideration of the nature and seriousness of the Applicant's conduct to paragraph 8.1.1(1)(a)(i) (violent and/or sexual crimes) and paragraph 8.1.1(1)(c) (the sentence imposed for the crime). I find that such an approach is misconceived as it ignores the other considerations identified in the remaining sub-clauses of paragraph 8.1.1(1) of Direction 90. 57 The Tribunal considered the normative standard embodied in paragraph 8.1.1(1)(a) of Direction 90 in stating at Reasons [109] that "[u]nder the Direction, any finding of guilt relating to sexual offending is viewed very seriously". The Tribunal then considered the other sub-clauses of paragraph 8.1.1(1) that applied in the circumstances of the case, including the sentence imposed by the courts (v 8.1.1(1)(c)) and that the Applicant had provided false or misleading information to the Department of Home Affairs (paragraph 8.1.1(1)(f)): Reasons [110]. 58 I reject the Applicant's contention that because the penalty imposed for the offending was $2,500 and without conviction, that it was not open to the Tribunal to find that the offending was "very serious". The sentence imposed by the Magistrates' Court is only one of the considerations which guides the Tribunal's decision on the seriousness of the offending. The Tribunal was not bound to make a finding that the offence was at the lowest end of the scale because the Magistrates' Court did not impose a conviction and fined the Applicant a moderate amount. The Tribunal was obliged to consider the other relevant factors in paragraph 8.1.1(1) of Direction 90 and form its own view of the seriousness of the Applicant's criminal offending or other conduct. 59 It was open to the Tribunal to find that the offending was "very serious" having regard to the relevant sub-paragraphs of 8.1.1(1). The Tribunal did not base its finding solely on paragraph 8.1.1(1)(a). Instead, having acknowledged that the punishment imposed by the Magistrates' Court was at the low end of available sanctions and having considered the Applicant's "other conduct", the Tribunal found that the totality of the Applicant's offending and other conduct was very serious: Reasons [111]. This finding by the Tribunal does not demonstrate any error in the Tribunal's understanding of the effect of paragraph 8.1.1(1)(a), nor does it meet the high threshold of irrationality: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 per Crennan and Bell JJ at [130]-[131].

DISPOSITION 60 The application will be dismissed. The Applicant will pay the First Respondent's costs. I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson.