Paul Cutler's Migration Case Law Blog

Mortimer J’s judgment in Singh v Minister for Immigration [2023] FCAFC 46 touches on two personal bugbears that I have in character cancellation matters.

Mr Singh’s student visa was cancelled in December 2018 after he pleaded guilty to a sexual assault matter. No conviction was recorded and he was punished with a fine. His student visa cancellation was set aside in the AAT.

In March 2019 his wife applied for a 485 visa and he was included as a secondary applicant. He was refused on character grounds.

The first issue is the “temporal issue”. Clearly it’s on the applicant to show that he would be unlikely to engage in criminal conduct in Australia (para 6(d)(i) of Direction 90). But for how long? Forever or just for the period of the visa? Her Honour accepted that the character test was a type of “filter” and it was directed to behaviour likely to occur in the visa period. The problem for the Applicant is that in his case in the AAT he raised the issue of having a family and staying permanently. As a result there was no error in the Tribunal considering the risk of offending over a longer timeframe.

The second issue is the “seriousness” of the offending. I often hear the Minister’s lawyers arguing that errors on incoming passenger cards are very serious. Clearly Mr Singh got off very lightly on his sexual assault charge (a fine and no conviction). Mortimer J made it clear that delegates and tribunal members were not sentencing judges and that visa cancellation is not a further punishment. However, assessment of seriousness was not limited to the offending. It extended to insight and views about the offending. Therefore it was an evaluative judgment for the decision maker who was guided by executive policy.

Her Honour also noted that the argument proceeded, at least implicitly, on the premise that the sentence imposed on the appellant was at the “low end”, in terms of a tariff in the Magistrates’ Court the appellant’s sentence might not, objectively, have been at the “low end”. There was no evidence before the Tribunal which could inform where the sentence imposed on the appellant sat in terms of outcome for the kind of offending for which he was convicted.

It’s starting to seem to me that “seriousness” is up there with “credibility” when it comes to determinations which appear to be (almost) unchallengeable!

Creative commons acknowledgement for the photograph.