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 fined $500. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
On 7 November 2022, the Tribunal wrote to the applicant informing him of the existence of a s 375A non-disclosure certificate on the file. The Tribunal considered the certificate to be valid in relation to all portfolios bar one which was released to the applicant. The Tribunal provided the applicant with the gist of the information subject to the s 375A certificate and invited him to comment on the certificate’s validity. The applicant responded on 11 November 2022.
The applicant appeared before the Tribunal on 4 April 2023 to give evidence and present arguments.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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.
The Tribunal has considered the applicant’s submissions.
Whilst there is no relevant legislative provision which unambiguously deems a person never to have been convicted when their sentence is quashed, the Tribunal considers that in relation to the previous charge Sexually touch another person without consent – T2, s 10 of the Crimes (Appeal and Review) Act 2001 would apply:
10 Effect of annulment of conviction or sentence
(1)On being annulled, a conviction or sentence ceases to have effect and any enforcement action previously taken is to be reversed.
(2)The annulment of a conviction for an offence that has been heard together with another offence for which a conviction has been made does not prejudice the conviction for the other offence.
(3)If a fine is annulled, any amount paid towards the fine is repayable to the person by whom it was paid.
(4)The Consolidated Fund is appropriated to the extent necessary to give effect to subsection (3).
The other offence Possess prohibited drugs was dealt with under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999, but that provision also does not unambiguously deem a person never to have been convicted:
10 Dismissal of charges and conditional discharge of offender
(1)Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders—
(a)an order directing that the relevant charge be dismissed,
(b)an order discharging the person under a conditional release order (in which case the court proceeds to make a conditional release order under section 9),
(c)an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program.
Whilst there may be no final, clear and unequivocal legislative provision that unambiguously deems a person never to have been convicted when their offence is quashed, the Tribunal notes that there is however some judicial authority suggesting that the effect of quashing a conviction in NSW is that the relevant person is taken to have never been convicted. If that is correct, then it would not be possible to find that person ‘has been convicted’ for reg 2.43(1)(oa) if that conviction has been quashed. In Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23, the Court referred to statutory provisions which deem a person never to have committed an offence:
[19] In Hartwig, Kiefel J held:
The nature of the State legislation, to which s 85ZR(2) of the Crimes Act (Cth) refers, is one which deems a person never to have been convicted of an offence. The effect of the provision must be such as to take away the fact of the conviction, as a pardon might do. It is not without significance that the section is headed ‘Pardons for Persons Wrongly Convicted’. Other legislation of the type to which s 85ZR(2) refers maybe that which deems a person not to have been convicted after the lapse of a number of years.
The Tribunal also notes that there is a general principle that a person whose conviction has been quashed is taken never to have been convicted. In Commissioner for Railways (NSW) v Cavanough [1935] HCA 45, the High Court said:
(Rich, Dixon, Evatt, McTiernan JJ)
The scope and effect of an appeal must in the end be governed by the terms of the enactment creating it. But the power given to the Quarter Sessions includes authority to quash and set aside convictions. These are familar expressions, and describe a jurisdiction exercisable at common law by Courts of error. The effect of the reversal of a conviction by proceedings in error has long been settled, and the same effect is produced by quashing it, or setting it aside upon a statutory appeal. The conviction is avoided ab initio. "The judgment reversed is the same as no "judgment" — per Coleridge, J, R v Drury, (1849) 3 Car. & K. at p 199, 175 ER 517 at p 520.
(Starke J)
Even if Cavanough were convicted of a felony, however, the allowance of his appeal and the setting aside of his conviction abrogated and obliterated it. It is true that anyone who acts in execution of a judgment may justify under it, notwithstanding its removal, reversal, or annulment, for it was good when given — Alleyne v The Queen, 5 El. & Bl. at 399; Smallcombe v Olivier, 13 M. & W. 77. But the consequences of the reversal of a judgment or conviction are that it is annulled and held for nothing, and the party is restored to all things which by reason of the judgment he has lost — see Archbold's Criminal Pleading (22nd ed ), p 261; R v Drury, 3 C. & K. 193; R v O'Keefe, 15 NSW LR 1; R v Lee, 16 LR (NSW) 6. The allegation in the plea that Cavanough's appeal was upheld, and his conviction set aside, is in substance an allegation, when the relevant Statute ("Justices Act 1902–31") is examined, that the conviction was reversed and quashed. The consequence was that his conviction was obliterated, and, to use the language of the old forms, "altogether held for nothing."
The Tribunal notes that in migration cases (admittedly posing different questions to that currently before it), Cavanough has been cited in Moorcroft v MICMSMA [2021] FCA 1348, and distinguished in Parker v MIBP [2016] FCAFC 185. In Parker, the Full Federal Court said:
[54] It was further submitted that the visa cancellation decision was unreasonable because it was “triggered” by a particular, and particularly legal, event which now must be treated as a nullity for all relevant purposes in accordance with s 10 of the Crimes (Appeal and Review) Act. The appellant contended that to uphold the validity of that decision would fail to give effect to the annulment, which would be contrary to s 10 and common law principle, citing Commissioner for Railways (NSW) v Cavanough [1935] HCA 45; 53 CLR 220 (Cavanough) at 225, 227–228. It was submitted that the 2014 conviction was the central event for the making of the visa cancellation decision yet, as a matter of law, the effect of the subsequent annulment meant that the event had never occurred.
[55] These submissions should not be accepted. Section 10 of the Crimes (Appeal and Review) Act is conspicuously silent on the effect of an annulment on a previous administrative decision which took into account a conviction before it was nullified. There is nothing in the terms of the provision to support the appellant’s sweeping submission.
[56] Nor is the appellant’s submission assisted by Cavanough, which is distinguishable. That case involved a railway employee who was convicted of theft. By s 80 of the Government Railways Act 1912 (NSW), an officer convicted of a felony was deemed to have vacated his office. The officer appealed his conviction to the Quarter Sessions, which upheld his appeal and set aside his conviction. The officer sued the Commissioner for Railways for the salary for the period between the date of his conviction, when he was suspended, and the date of the setting aside of his conviction by Quarter Sessions, when he was reinstated. The High Court rejected the Commissioner’s reliance upon s 80 and held that, upon the setting aside of the conviction, it was avoided ab initio with the consequence that the officer was not deemed to have vacated his office and was entitled to his salary.
[57] Cavanough was a case in contract. The High Court did not need to consider the effect of the setting aside of the conviction on administrative action of the sort which arises here. It appears that the officer’s suspension occurred under his contract of employment which provided for his suspension in the event of misconduct. Section 80 of the Government Railways Act operated by force of law to deem the officer to have vacated his office upon conviction. The High Court held that, his conviction having been quashed, and because the conviction is avoided ab initio, in law the officer is considered never to have been convicted and therefore never deemed to have vacated his office under s 80.
[58] The facts and relevant statutory provisions in Cavanough are far removed from those here, where s 10 of the Crimes (Appeal and Review) Act is relied upon to impugn an administrative decision by the Minister to cancel the applicant’s visa at a time when the 2014 conviction was prima facie valid and the applicant did not draw the Minister’s attention to the possibility of him applying to have the conviction annulled. The Minister’s administrative decision, which was made on the basis of all the material which was then before the Minister, is of a very different nature to a statutory deeming provision such as s 80 of the Government Railways Act.
Based on the judicial authorities that are before it, the Tribunal is satisfied that the effect of the applicant’s conviction being quashed is that the ground in reg 2.43(1)(oa) cannot be made out in relation to the previous offence Sexually touch another person without consent – T2.
The Tribunal is furthermore satisfied that the ground in reg 2.43(1)(oa) cannot be made in relation to the applicant’s previous offence Possess a prohibited drug due to [the Judge] upholding the applicant’s appeal and finding the applicant guilty but without proceeding to conviction (emphasis added).
The Tribunal is not satisfied that the applicant has been convicted of an offence against a law of the Commonwealth, a State or Territory (reg 2.43(1)(oa)).
For these reasons, the Tribunal is not satisfied that the ground for cancellation in s 116(1)(g) exists. It follows that the power to cancel the applicant’s visa does not arise.
For completeness, the Tribunal notes that even if it were mistaken in its conclusion that the ground for cancellation does not arise, the Tribunal would have set the cancellation aside anyway after taking into account the various considerations which it traversed with the applicant at its hearing. Given the decision of the NSW District Court, the Tribunal would have weighed the hardship that would be caused to the applicant; the circumstances in which the ground for cancellation arose; the purpose of the applicant’s travel to and stay in Australia (as a long-standing [Occupation] in the [Work sector]); and the legal consequences of a decision to cancel the visa all heavily against visa cancellation. The Tribunal has taken into account that the evidence suggests the applicant did nevertheless breach ethical boundaries between himself and a [Person] which he himself concedes, whilst he did plead guilty to the possession of a small amount of a [drug] for personal use. Ultimately, the Tribunal considers that the considerations not to cancel the visa would have significantly outweighed the ground for cancelling the visa.
Ministerial Intervention Request
The Tribunal notes that the applicant’s last substantive visa was the UC-457 Temporary Work (Skilled) visa that is the subject of this review. This visa was cancelled by the delegate on 24 March 2022. The visa would have otherwise expired on 24 May 2022. Upon cancellation by the delegate of his visa, the applicant applied for a Bridging visa E to regularise his visa status on 29 March 2022. The applicant noted that this application has still not been finalised by the delegate at the time of decision: meaning the applicant has been unlawful in the community. The applicant’s representative did note at the hearing that the Department had requested updates as to the applicant’s appeal at the NSW District Court. This information was supplied to the delegate on 16 January 2023.
The applicant sought the Tribunal’s assistance, should the cancellation be set aside, in making a note in its Decision Record so he may seek Ministerial Intervention in this case.
The Tribunal has considered the request of the applicant and the evidence before it.
In relation to the request pertaining to Ministerial Intervention, the Tribunal notes that the Minister has powers under the Act to replace a decision of a merits review tribunal on a person’s case with a decision that is more favourable to that person if the Minister thinks it is in the public interest to do so. In the circumstances of this case, the Tribunal however has made a decision in favour of the applicant. The Tribunal would furthermore note that the Minister has indicated to the Department cases that do not meet the guidelines for referral and are inappropriate for the Minister to consider. These include matters where the person has had a remittal or a set aside decision from a relevant review tribunal or a court. In the circumstances of this case, the Tribunal has set aside the cancellation of the applicant’s UC-457 Temporary (Skilled) visa.
At the hearing, the Tribunal noted the Ministerial Intervention request and stated it was supportive, given the circumstances of this case, of efforts made to restore the applicant to his previous situation as a hardworking and diligent [Occupation] working in the [Work sector]. Regrettably, having subsequently noted the Minister’s public interest powers under the Act, the Tribunal does not consider this is a case that it can refer to the Minister under the usual guidelines.

In relation to the failure of the Department to finalise the applicant’s Bridging visa E application from more than a year ago, the Tribunal finds this failure to action the application quite frankly unfathomable. The applicant correctly applied for a Bridging visa E on the basis of this review on 29 March 2022 – five days after his substantive visa was cancelled. The Tribunal notes that in all likelihood – given the Tribunal is finalising its review of the cancellation of his 457 visa – the applicant will now have to apply for a further Bridging visa E in order to enable him to lodge a further application for a substantive visa. The Tribunal would urge the delegate to finalise a decision as to the applicant’s Bridging visa E application as a matter of priority.
The Tribunal notes the frustration of the applicant in relation to his UC-457 Temporary Work (Skilled) visa. The visa was cancelled on the basis of a conviction that has since been quashed. That visa expired on 24 May 2022, notwithstanding the fact the Tribunal has now set aside the cancellation. Obviously, the applicant has been unable to obtain a sponsor for a further employment-related visa due to the cancellation of his visa, his lack of a Bridging visa, and the suspension of his right to [work] as [an Occupation] by [an Accreditation body] due to his previous convictions. The applicant has been undoubtedly placed in a very difficult position due to the conflation of all these matters.
The Tribunal notes that the applicant is scheduled to appear before [the Accreditation body] [in] April 2023 where he has requested a review of his suspension from [working] on the basis that he in fact was not convicted of the offences for which he was charged (as a result of the decision by the NSW District Court) and which obviously grounded the [Body]’s previous suspension of his right to [work] as [an Occupation].
The Tribunal notes that the applicant has a range of matters in relation to his visa status and his ability to return to [work] as [an Occupation] in the [Work sector] that will need to be addressed. They are matters ultimately for the applicant and his legal counsel to address, and are not matters on which the Tribunal can provide him with advice or comment.
The Tribunal does note however that the evidence before it is that the applicant’s convictions of the offences for which his UC-457 Temporary Work (Skilled) visa was cancelled were respectively quashed, and not recorded as a conviction. The cost to the applicant over the last few years has been substantial. He has lost his job, a respected role in the [Work sector]. He has lost, in his mid-[Decade], his right to work in the one area in which he is qualified. The Tribunal has taken into account the psychological records provided and considers the evidence suggests the applicant has faced significant mental health challenges as a result of the previous convictions and the loss of his employment and right to work. The Tribunal notes the sentencing remarks of [the Judge] who stated:
He is now [Age]. He comes to court as a person who has been a working [Occupation] in the [Work sector] for 15 years. He is well regarded in that field with a reference from a previous colleague and [Occupation 2] at [Workplace 2], speaking of his hard work.
He is also a person who has made contributions to the community, particularly the local [Country] community in Sydney. He has lost his job and in fact did lose his job shortly after being arrested for this offence. That is perfectly understandable and perfectly appropriate in the circumstances because even if he now is a person without a criminal conviction, on his own admission, he seriously breached ethical boundaries between himself and a [Person] and it is not surprising that he has been dismissed. It may be that he is able to reinstate himself at some stage in the future but that is not a matter for me but for others. Nonetheless, he has paid a significant price for his very poor error of judgment.
The Tribunal would agree with [the Judge] that the applicant has paid a substantial price for the events that led to him being accused of offences for which he ultimately does not have a criminal conviction. The Tribunal found him to be an engaged witness who understandably is anxious for his future and has expressed a strong desire to return to [the Work sector] and seek employment in rural and regional NSW which have experienced significant shortages of qualified and experienced [Occupation]s.
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 Owen
Deputy President