The Federal Court of Australia has dismissed 31-year-old Indian citizen Navdeep Singh’s application for judicial review of a decision made by the Administrative Appeals Tribunal earlier last year. The appeal centred around the denial of a visa application by Mr Singh, who failed the character test under section 501(6) of the Migration Act 1958 (Cth).
Mr Singh had previously pleaded guilty to a charge of sexual assault, for which he was fined with no conviction recorded. The Department of Home Affairs denied his application for a visa, and the decision was affirmed by the Tribunal. The appellant argued that the primary judge had erred in finding that the Tribunal did not consider his submission that he had been “tested in the community” since admitting his guilt.
The appellant also argued that the Tribunal was incorrect in its finding that there was no temporal limitation on its assessment of risk. Despite these arguments, the primary judge found that the Tribunal did not make any jurisdictional errors, and the appeal was subsequently dismissed with costs.
Mr Singh arrived in Australia in 2015 on a student visa to undertake a postgraduate course. He has lived in Australia continuously for six years, apart from a month-long return visit to India in 2017. While working as a taxi driver, he was involved in an incident with a passenger in the early hours of the morning of 16 August 2017. This resulted in him being arrested, charged, and found guilty of sexual assault.
In December 2018, DoHA cancelled Mr Singh’s Further Student Visa which he obtained after marrying a student visa holder and staying on a dependent visa. On 3 January 2022, the Tribunal affirmed the minister’s decision.
In its decision, the Tribunal also referred to a statutory declaration that Mr Singh signed in June 2020. The Tribunal noted that the appellant had “…blamed the victim and demonstrated a lack of remorse”.
“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 section 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,” reads the judgement.
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”.
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