2204478 (Migration) - [2023] AATA 875

2204478 (Migration) [2023] AATA 875 (6 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Louis Zhang
CASE NUMBER:  2204478
MEMBER:Deputy President Justin Owen
DATE:6 April 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 06 April 2023 at 10:52am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – criminal convictions, intensive correction order, supervision and fine – on appeal, one conviction quashed – no legislative provision but judicial authority that effect of quashing conviction is that person is taken to have never been convicted – guilty finding on other charge upheld, but without proceeding to conviction – grounds for cancellation cannot be made out – application for bridging visa not finalised and applicant unlawful in community – not appropriate case for referral for ministerial consideration – visa now expired in any case – loss of work rights and mental health – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(g), 375A
Migration Regulations 1994 (Cth), r 2.43(1)(oa)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 10(1)(a)
Crimes (Appeal and Review) Act 2001 (NSW), s 10
CASES
Commissioner for Railways (NSW) v Cavanough [1935] HCA 45
Moorcroft v MICMSMA [2021] FCA 1348
Parker v MIBP [2016] FCAFC 185
Thornton v MICMSMA [2022] FCAFC 23
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 24 March 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The applicant is a [Age]-year-old [Country] national who arrived in Australia as the holder of a [Specified] visa in March 2004. The applicant has held a range of visas that have allowed him to work as [an Occupation]. For a significant period of time the applicant was sponsored by [Employer]. The applicant held the role of [Role 1] at [Workplace 1] between 2013 and July 2020. Between his arrival in March 2004 and 2013, he worked as a [Role 2] at [Workplace 2]. The applicant is single and has no family in Australia.
The delegate cancelled the visa under s 116(1)(g) on the basis that the applicant had been convicted on 12 July 2021 of the offences Sexually touch another person without consent – T2; and Possess prohibited drug. The applicant was sentenced to an Intensive Correction Order as well as Supervision – [Suburb] Community Corrections for 18 months (commencing [July] 2021 and concluding [January] 2023). He was also to undertake an 18-month sex offending course. In relation to his Possess prohibited drug conviction, the applicant was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] AATA 875
Decision Date: 6 April 2023

CaseChat Overview and Summary

The applicant, a holder of a Temporary Business Entry (Class UC) visa, Subclass 457, sought review of the Minister's decision to cancel their visa. The cancellation was based on criminal convictions, specifically an intensive correction order, supervision, and a fine. However, on appeal, one conviction was quashed, and for another charge, a guilty finding was made but without proceeding to conviction.

The primary legal issue before the Tribunal was whether the grounds for visa cancellation, as prescribed by section 116(1)(g) of the Migration Act 1958 (Cth) and regulation 2.43(1)(oa) of the Migration Regulations 1994 (Cth), were still made out following the outcomes of the applicant's criminal appeals. Regulation 2.43(1)(oa) requires the Minister to be satisfied that the visa holder "has been convicted" of an offence.

The Tribunal reasoned that the quashing of a conviction means the person is legally taken to have never been convicted of that offence. Furthermore, a finding of guilt without proceeding to conviction, as occurred with the drug possession charge, does not constitute a "conviction" for the purposes of the regulation. Consequently, the Tribunal concluded that the prescribed ground for cancellation under regulation 2.43(1)(oa) was not established, as there was no longer a relevant conviction to support the cancellation decision.

Accordingly, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be aside.CONSIDERATION OF CLAIMS AND EVIDENCE Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly to this case, these include the ground set out in s 116(1)(g). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.Does the ground for cancellation exist? A visa may be cancelled under s 116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in reg 2.43 of the Migration Regulations 1994 (Cth) (the Regulations). In the present case, the ground in reg 2.43(1)(oa) is relevant. The applicant was convicted of the offence Sexually touch another person without consent – T2 in the Local Court, the Magistrate delivering a judgement that the offence was proved beyond reasonable doubt [in] May 2021. The applicant was convicted and sentenced [in] July 2021. The applicant had pleaded not guilty to the charge. The applicant appealed against his conviction for the offence Sexually touch another person without consent – T2 in the NSW District Court. [In] December 2022, [the Judge] upheld the applicant’s conviction appeal. The conviction and sentence imposed by the Magistrate in the Local Court was quashed. The applicant’s conviction for Possess prohibited drugs related to a small amount of [drugs] for personal use was also appealed. [In] December 2022, [the Judge] upheld the sentence appeal of the applicant and varied the Order. [The Judge] found the applicant guilty of the charge but without proceeding to conviction. The matter was dismissed pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999. The Tribunal has had the opportunity to read [the Judge’s] remarks in quashing the first conviction and finding the applicant guilty, but not recording a conviction in regard to the second offence. The applicant submits that the ground for the cancellation of his visa does not exist as a result of the decision of the NSW District Court. The applicant noted that Reg. 2.43(1)(oa) states that the Minister ‘is satisfied that the holder has been convicted (emphasis added) of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of any penalty imposed (if any)’. The applicant submits that the decision of the NSW District Court to quash the conviction against the applicant for the offence Sexually touch another person without consent – T2; and to find the applicant guilty but without proceeding to conviction on the offence Possess a prohibited drug, means that there is no conviction of which to ground the cancellation.

Decision

Reasons for decision

The Tribunal has considered the evidence before it. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.Justin OwenDeputy President

Ratio Decidendi

Legal Principle Established

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