Anashkin v Minister for Immigration

[2016] FCCA 310

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANASHKIN v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 310

Catchwords:
MIGRATION – Review of decision of the Administrative Appeals Tribunal – cancellation of a spouse visa – whether the visa applicant had provided incorrect information about a past criminal conviction considered.

WORDS AND PHRASES – Expunged.

Legislation:

Crimes Act 1914 (Cth), s.85ZM

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.101, 103, 107, 108, 109, 501
Migration Regulations 1994 (Cth)

Abebe v Commonwealth (1999) 197 CLR 510
Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297

Kelleher v Parole Board (NSW) (1984) 156 CLR 364
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

Nezovic v Minister for Immigration (No 3) [2004] FCA 750

R v Foster (1984) 2 All ER 679

R v Gray; Ex parte Marsh (1985) 157 CLR 351

Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407
SHJB v Minister for Immigration (2003) 134 FCR 43

Waterford v Commonwealth (1987) 163 CLR 54

Applicant: ALEXANDER ANASHKIN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2613 of 2015

Judgment of: Judge Driver

Hearing date: 16 February 2016

Delivered at: Sydney

Delivered on: 16 March 2016

REPRESENTATION

Counsel for the Applicant: Mr N Poynder

Solicitors for the Applicant: Lewis & Bollard Migration

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application filed on 23 September 2015 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2613 of 2015

ALEXANDER ANASHKIN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This is an application to review a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 31 August 2015.  The Tribunal affirmed a decision of a delegate of the Minister to cancel the applicant’s (Mr Anashkin) subclass 801 spouse visa.

2. The following statement of background facts is derived from the submissions of the parties.

3. Mr Anashkin is a citizen of Russia who, on 16 November 2009, lodged an application for a subclass 820/801 partner visa based on his marriage to an Australian citizen of Russian extraction[1].

   [1] The relevant application documents for the subclass 820/801 visa are in the Court Book (CB) 1-41.

4. Relevantly to the present case, in his application forms Mr Anashkin answered the following questions in the following manner:

   a)in his Form 47SP Application for migration to Australia by a partner, Mr Anashkin answered question 80 as follows[2]:

   [2] CB 14.

   80Have you, or any other person included in this application, ever:

   been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?

   No P     Yes c

   b)in his Form 80 Personal particulars for  character assessment, Mr Anashkin answered question 32 as follows[3]:

   32(a)     Have you, or any other person included in this application, ever been convicted of, or found guilty of, ANY offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, and any “spent” convictions)?

   No P Yes c

   Note: “Spent” convictions are convictions which are not, under legislation in certain countries, normally required to be disclosed, for example because of the time that has passed since the conviction, or because of a pardon for reasons other than wrongful conviction.

   [3] CB 39.

5. Mr Anashkin also provided a Police Clearance Certificate No 93 dated 11 August 2009 which referred to Mr Anashkin and stated[4]:

   This certificate confirms that the person above, according to the Information Center of UVD in NGO, has been never criminally prosecuted.

   [4] CB 53.

6. On 22 February 2010 Mr Anashkin was granted a subclass 801 visa[5]. 

   [5] CB 61.

7. On 26 November 2014 the Tribunal issued Mr Anashkin with a “Notice of intention to consider cancellation under s.109 of the Migration Act 1958” (Notice of intention)[6].  The grounds of the Notice of intention were as follows:

   [6]     CB 97-102.

   a)first, that Mr Anashkin had provided incorrect information in his Form 47SP and his Form 80 when he answered “No” to questions 80 and 32 respectively, and when he certified in his Form 47SP that the information in his application was complete, accurate and up-to-date.  The Notice of intention stated[7]:

   [7]     CB 99-100.

   Recently, the department obtained information from the Department of Ministry of Internal Affairs, Russian Federation in Nakhodka City. It has confirmed that you have pleaded guilty for committing the following crimes:

   ·   Racketeering

   ·   Attempt to murder of two or more persons

   ·   Complicity in the murder of two or more persons committed with a mercenary motive

   ·   Conspiracy to murder of two or more persons committed with mercenary motive

   ·   Kidnapping organised by a group of people

   ·   Grand larceny committed by an organised group of people

   ·   Robbery conducted by a group of people 

   Furthermore, the departmental staff in Australian Embassy, Moscow also found that numerous articles, which are available in open sources, have reported that you were sentenced to imprisonment for 11 years and six months for the above charges.

   b)secondly, that the Police Clearance Certificate provided by Mr Anashkin was a “bogus document”.  The Notice of intention stated[8]:

   Recently, the departmental staff in Australian Embassy, Moscow, Russian Federation conducted an integrity check and it was advised by the Department of Ministry of Internal Affairs, Russian Federation in Nakhodka City that the Certificate No. 93, dated 11/08/2009, was never issued to Alexander Anashkin (DOB 13/04/1967). (errors in original)

   [8]     CB 100.

8. The initial response of Mr Anashkin, through an email from his representative on 26 November 2014, was that the information in the Notice of intention had been fabricated by his enemies[9].  The representative also provided a letter from a law firm in Russia confirming that Mr Anashkin had no criminal record[10], and another law firm noting that a complaint had been lodged against the police colonel who had provided the “false information” to the Tribunal[11].

   [9] CB 108.

   [10]CB 126.

   [11]CB 128-129.

9. The Tribunal subsequently obtained Russian newspaper articles which identified Mr Anashkin as part of an organised criminal group called the “gang of Veps”, and which referred to his arrest for criminal offences in 1994, his prosecution, and his subsequent imprisonment for 11 years and six months[12].

   [12]CB 160-165.

10. On 12 December 2014 the Minister’s Department cancelled Mr Anashkin’s subclass 801 visa[13].

    [13]CB 167-186.

11. Before the Tribunal, on 30 June 2015 Mr Anashkin’s representative provided an email attaching a letter from the Nakhodka City Court to Mr Anashkin’s Russian lawyer which relevantly stated (emphasis added)[14]:

    In response to your application, please be advised that conviction of Anashkin, Alexander Albertovich, born on 13 April 1967, imposed by the Judicial Division for criminal cases of the Primorskiy Regional Court on 20 December 2000 has been expunged based on a resolution of the city of Nakhodka Municipal Court dated 29 December 2005.

    At the same time we explain that in accordance with part 6 of the article 86 of the Russian Federation Criminal Code a cancellation or an expunging of a record of conviction annuls all legal consequences related to such conviction.

    [14]CB 238.

12. The email also relevantly attached the following documents:

    a)a letter dated 1 June 2015 from the Ministry of Internal Affairs of Russia advising that it had no record of any prosecution of Mr Anashkin[15];

    b)a letter dated 1 June 2015 from another lawyer in Russia explaining the effect of the expungement of criminal convictions in Russia[16];

    c)a letter dated 15 June 2015 from another lawyer who had worked as a People’s Judge at the Nakhodka City Court who pointed to the unfairness of the arrest, prosecution and trial of Mr Anashkin, and to the “full annulment of convictions from the Nakhodka City Court”[17];

    d)a letter dated 9 June 2015 from another lawyer explaining that Mr Anashkin’s criminal records “have been expunged by a ruling of a court”, meaning that he has no criminal record[18].

    [15]    CB 239.

    [16]    CB 240-242.

    [17]    CB 261-263.

    [18]    CB 266-268.

13. On 2 July 2015 a hearing was convened by the Tribunal at which the following relevantly took place:

    a)Mr Anashkin explained that, apart from his arrest in 1994[19], he had also been arrested “for fighting” in 1986 and spent five years in prison[20];

    b)in relation to the 1994 arrest and subsequent conviction the Tribunal said[21]:

    And, whether that record was expunged or not, your answer on – that question on the application form is not a correct answer. It’s an incorrect answer.

    and[22]

    So, the fact is – so, the fact is after 1994 you were charged, you were convicted, you were held in prison, and even if that was later expunged from your record, you didn’t answer that question correctly.

    c)towards the end of the hearing, Mr Anashkin’s representative noted that the lawyers who had provided letters to the Tribunal were available to give evidence to the Tribunal by telephone[23] and the member said[24]:

    Yes. I don’t find the need to question them further.

    [19]    Transcript, page 4, lines 29-34.

    [20]    Transcript, page 5, lines 29-40.

    [21]    Transcript, page 9, lines 18-20.

    [22]    Transcript, page 9, lines 27-30.

    [23] Transcript, page 21, lines 3-4.

    [24] Transcript, page 21, line 27.

The decision of the Tribunal

1. On 31 August 2015 the Tribunal made its decision to affirm the cancellation of Mr Anashkin’s subclass 801 visa[25].

   [25] CB 399-415.

2. In relation to the 1994 arrest and subsequent conviction the Tribunal at [45][26] made the following finding (emphasis added):

   The Tribunal finds on the evidence that the applicant was arrested in 1994 in Russia, charged and convicted of a number of crimes for which he served a term of imprisonment. The information he provided regarding his criminal convictions in his visa application does not accurately reflect this fact. The question on the form asks about “spent” convictions. The applicant was obliged to answer that he had spent convictions, if in fact this was the case, arising from his arrest in 1994. The Tribunal does not accept the argument that the applicant did not have to state that he had spent convictions because they had been expunged from his record. The Tribunal finds that the applicant provided incorrect information regarding his criminal history in his application for a partner visa.

   [26] CB 405.

3. The Tribunal also found at [46][27] that the Police Clearance Certificate was a “bogus document”.

   [27] CB 405.

4. Having made the above findings at [45]-[46], the Tribunal at [47] found that there was non-compliance with s.101(b) and s.103 of the Migration Act 1958 (Cth) (Migration Act) in the way described in the Notice of intention[28].

   [28] CB 405-406.

5. In the remaining part of the decision the Tribunal weighed up the various circumstances prescribed in regulation 2.41 of the Migration Regulations 1994 (Cth) (Regulations). Relevantly to the present case:

   a)The Tribunal at [54][29] acknowledged Mr Anashkin’s claim that his 1994 convictions had been expunged from the records; however at no time did it find that the conviction had not been expunged;

   b)the Tribunal at [59]-[67][30] acknowledged the letters from the Russian lawyers; however at no time did it question the accuracy of the lawyers’ statements that the 1994 convictions had been expunged.  Rather, at [70], it questioned the rationale of Mr Anashkin’s explanation that when completing his forms he believed that he did not have to declare the 1994 convictions which was undermined by his delay in putting forward this rationale;

   c)the Tribunal said, at [95][31]:

   In the Tribunal’s view the applicant’s elaborate and shifting responses to the information regarding his criminal convictions indicate unwillingness on his part to acknowledge his past criminal convictions, irrespective of the circumstances in which those convictions arose.

   d)the Tribunal at [103][32] also noted that Mr Anashkin had failed to acknowledge his 1986 conviction and imprisonment;

   e)with regard to the evidence of the Russian lawyers the Tribunal said, at [104][33]:

   The applicant’s representative stated that the applicant requested that the Tribunal take oral evidence from the applicant’s Russian lawyers, Mr Bondarenko and Mr Barsukov at the hearing. However the Tribunal noted that both men provided detailed written evidence to the Tribunal and did not require any further explanations of the evidence they submitted.

   [29] CB 407.

   [30] CB 408-409.

   [31] CB 413.

   [32] CB 414.

   [33] CB 414.

The judicial review application

1. These proceedings began with a judicial review application filed on 23 September 2015.  There is one particularised ground in the application:

   The second respondent (the Tribunal) erred in finding that the applicant provided incorrect answers regarding his criminal history, within the meaning of s.101 of the Act, in his application forms for a partner visa.

   Particulars

   1. In his application for a partner visa the applicant answered “No” to the following questions:

   (a) Have you, or any other person included in this application, ever: been convicted of a crime or offence in any country (including any conviction which is now removed from official records)? [Form 47SP question 80].

   (b) Have you, or any other person included in this application, ever been convicted of, or found guilty of, any offences overseas or in Australia (include all traffic offences which went to court, including offences declared in our permanent residence application, and any ‘spent’ convictions)? [Form 80, question 32(a)].

   2. There was evidence before the Tribunal that in 1994 the applicant had been arrested and charged with criminal offences for which he was subsequently convicted (the 1994 convictions).

   3. There was also evidence before the Tribunal that the 1994 convictions had been expunged from the applicant’s record.

   4. The Tribunal (at paragraph 45) did not accept the applicant’s argument that he did not have to state that he had “spent” convictions because they had been expunged from his record.

   5. An “expunged” conviction is a conviction that is taken never to have existed.  As such, there was no obligation upon the applicant to disclose the 1994 convictions in his application forms.

   6. The error of the Tribunal was material to the exercise of its discretion to cancel the applicant’s visa under s.109 of the Act for failing to comply with the requirement that he not provide incorrect answers in his application forms.

2. I have before me as evidence the court book filed on 16 December 2015 and the affidavit of Gareth John Lewis made on 19 January 2016 (filed on 20 January 2016) to which is annexed a transcript of the Tribunal hearing conducted on 2 July 2015.

3. Both Mr Anashkin and the Minister made written and oral submissions in the matter.  I have been assisted by those submissions.

4. The trial of this matter before me was expedited on the basis that Mr Anashkin was in immigration detention.  However, at the hearing before me on 16 February 2016, I was told that Mr Anashkin had been released from detention and was at that time located in Thailand.

Consideration

Mr Anashkin’s contentions

1. Mr Anaskhin does not contend that there was error in the following findings of the Tribunal:

   a)that the Police Clearance Certificate was a “bogus document”; and

   b)that s.108 of the Migration Act was thereby engaged by reason of Mr Anaskhin’s non-compliance with s.103 of the Migration Act.

2. Mr Anaskhin’s contention is:

   a)the Tribunal accepted that his 1994 convictions had been “expunged”; and

   b)that “expunged” convictions do not come within the description of any of the elements of criminal activity required to be disclosed in question 80 of the Form 40SP or question 32 of the Form 80.

The Tribunal “accepted” that the 1994 convictions had been expunged

1. Mr Anashkin asserts that at no time did the Tribunal query his claim, and that of his Russian lawyers, that his 1994 convictions had been “expunged”.

2. Had the Tribunal not accepted this claim, it would no doubt have wanted to question the Russian lawyers, who had been made available by Mr Anaskhin’s representative to give evidence by telephone.  Instead, during the hearing and in its decision, the Tribunal indicated that it did not require anything further from the lawyers.

Expunged convictions “do not come within the disclosable information”

1. Mr Anaskhin contends that the Tribunal erroneously equated “expunged” convictions, which do not have to be disclosed in accordance with the wording of questions 80 and 32, with “spent” convictions, which do have to be disclosed. This is most obviously illustrated in the decision at [45].

2. Mr Anaskhin contends that, in fact, “expunged” convictions are very different from spent convictions.

3. The dictionary definition of “expunge” suggests that an act of expungement “wipes out” or “obliterates” something which previously existed.  According to the Oxford English Dictionary (OED), the word derives from a Latin term to refer to the obliteration by lexicographers of words by pricking.  The OED uses words such as “strike out”, “blot out”, “erase”, “annihilate” and “destroy” to define “expunge”[34].

   [34] Oxford English Dictionary, 2^nd Edition (1989) Vol. V, page 588.

4. This is consistent with the way in which the Russian lawyers defined the term; namely, that it refers to a conviction which has been “cancelled”, “annulled”, “removed”, “quashed” or “struck from the record”. 

5. In contrast, “spent convictions”, as defined in s.85ZM of the Crimes Act 1914 (Cth) (Crimes Act), refer to convictions for which a pardon has been granted “for a reason other than that the person was wrongly convicted of the offence”, and for certain offences for which the “waiting period” has ended.

6. The wording of the note to question 32 in Form 80 reflects the Crimes Act definition of spent convictions, and suggests, as contended by Mr Anaskhin, that while spent convictions must be disclosed, convictions which ought never have taken place, including expunged convictions, do not have to be disclosed.

7. Consistently with this, the former s.501(10) of the Migration Act in relation to the “character test” referred to quashed convictions and pardons for the purpose of assessing whether a visa holder had a “substantial criminal record” under s.501(7)(a)-(d). Section 501(10) stated (emphasis added):

   For the purposes of the character test, a sentence imposed on a person, or the conviction of a person for an offence, is to be disregarded if:

   (a)the conviction concerned has been quashed or otherwise nullified; or

   (b)the person has been pardoned in relation to the conviction concerned.

8. The possibility that a person’s expunged sentence or conviction may have been improperly considered by a decision-maker for the purposes of the character test was found to support a claim for relief in the nature of certiorari and mandamus in Nezovic v Minister for Immigration (No 3)[35].

   [35] [2004] FCA 750 at [39] (French J).

9. In R v Gray; Ex parte Marsh[36] Dawson J at 396-397, in the context of discussing the utility of an application for certiorari, appeared to use the words “quash” and “expunge”, interchangeably in relation to criminal convictions.  There is also United Kingdom authority to the effect that the “quashing” of a conviction has the effect of putting the convicted person in the position of never having committed the crime, as opposed to a pardon, which merely removes the convicted person from the consequences of the conviction but does not eliminate the conviction itself[37].  In Kelleher v Parole Board (NSW)[38] Wilson J at 371 also referred to “expunge” in the sense that it entirely removed the conviction.

   [36] (1985) 157 CLR 351.

   [37] see R v Foster (1984) 2 All ER 679.

   [38] (1984) 156 CLR 364.

1. The Tribunal therefore is said to have misconstrued the effect of the expungement of Mr Anashkin’s criminal conviction and erroneously considered that he was required by the questions in the application forms to disclose the conviction.

2. While the Tribunal’s alleged error would not have altered the fact that s.108 had been engaged (since the bogus Police Clearance certificate and, possibly, the 1986 convictions would have engaged the provision), it can safely be inferred that the error had a material effect on the exercise of the Tribunal’s discretion to cancel Mr Anashkin’s visa. The failure to disclose the 1994 convictions was clearly a factor which was given significant weight by the Tribunal in the exercise of its discretion. While it would nevertheless have been open to the Tribunal to still cancel the visa by reason of the bogus document and the 1986 convictions, Mr Anashkin submits that the Court could not be satisfied that, if it is accepted that Mr Anashkin was under no obligation to disclose the expunged convictions, no different outcome would result upon remittal.

The Minister’s contentions

1. The Minister notes that Mr Anashkin’s submissions advance the proposition that the Tribunal erroneously equated “expunged” with “spent” convictions, and refer to Australian legislation and case law concerning “spent” or “expunged” convictions.  The Minister complains that neither in his application, or in his submissions, does Mr Anashkin clearly identify what jurisdictional error the Tribunal is alleged to have made.

2. Mr Anashkin’s submissions at [26]-[27] claim that the Tribunal “accepted that the 1994 convictions had been expunged”.  However the Minister contends that this is not a fair reading of the Tribunal’s decision, contrary to Minister for Immigration v Wu Shan Liang[39].  The Tribunal at [70][40] notes that Mr Anashkin’s delay in putting forward the rationale that his 1994 convictions had been expunged[41] undermined its credibility, and found that Mr Anashkin was not a credible witness.  The Minister contends that, on any fair reading therefore the Tribunal has not accepted that the 1994 convictions had been “expunged” as Mr Anashkin claimed.  The Tribunal at [45][42] (relied on by Mr Anashkin) must thus be taken as rejecting the argument put, not accepting its factual premise (that the 1994 convictions had been “expunged”) as suggested by Mr Anashkin.  The Tribunal explains that it did not need to take evidence from Mr Anashkin’s Russian lawyers because they had provided detailed written statements[43], not, as suggested in Mr Anashkin’s submissions, because those statements were accepted by the Tribunal.

   [39] (2006) 185 CLR 259 at 271-272.

   [40] CB 410.

   [41] see CB 409 at [68]-[69].

   [42] CB 405.

   [43] CB 414 at [104].

3. The Minister submits that the issue for the Tribunal was simply whether Mr Anashkin had given an “incorrect answer” to the questions asked of him within s.101. The Tribunal found he had[44].  The arguments put in Mr Anashkin’s submissions concerning Australian legislation and case law on spent or expunged convictions are irrelevant, as the incorrect information that the Tribunal found had been given by Mr Anashkin related to convictions in Russia.  Mr Anashkin had argued to the Tribunal that his convictions had been expunged under Russian law, and that this had the effect under Russian law that he was considered “free of criminal records” and had a “legitimate right” to answer that he had not previously been convicted[45].  However as already stated in the Minister’s submission the Tribunal did not accept this argument[46].

   [44] CB 405 at [45].

   [45] CB 267.8.

   [46] CB 410 at [70].

4. In the absence of identification of a jurisdictional error by Mr Anashkin, the only issue is whether it was open for the Tribunal to find that Mr Anashkin’s answer of “No” at CB 14, 39 was an “incorrect answer” within s.101(b)[47].  Having not accepted that Mr Anashkin was credible and not accepted that his claim that his 1994 convictions were “expunged” was credible, it was (at least) open for the Tribunal to find that he had given incorrect answers to the questions asked of him given the Tribunal’s findings that he had been convicted and imprisoned.  The Tribunal’s finding that Mr Anashkin had given an “incorrect answer” is a finding of fact, and there is no error of law in the Tribunal making a wrong finding of fact[48].  The Tribunal’s finding that Mr Anashkin was not credible, including as to his claim that his convictions had been “expunged” in a finding of fact par excellence[49].

Resolution

[47] e.g. SHJB v Minister for Immigration (2003) 134 FCR 43 at [22].

[48] Waterford v Commonwealth (1987) 163 CLR 54 at 77; Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 at 303; Abebe v Commonwealth (1999) 197 CLR 510 at [137].

[49] Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 (HCA/McHugh J) at [67].

Relevant legislation

1. Section 101 of the Migration Act is entitled “Visa applications to be correct”, and relevantly provides:

   A non-citizen must fill in or complete his or her application form in such a way that:

   ...

   (b)     no incorrect answers are given or provided.

2. Section 103 of the Migration Act is entitled “Bogus documents not to be given etc” and provides:

   A non-citizen must not give, present, produce or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, produced or provided.

3. Section 107 of the Migration Act is entitled “Notice of incorrect applications”, and relevantly provides:

   If the Minister considers that the holder of a visa who has been immigration cleared…did not comply with section 101 [or]..103…in a response to a notice under this section, the Minister may give the holder a notice:

   (a)giving particulars of the possible non-compliance; and

   (b)stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

   (i)     if the holder disputes that there was non-compliance:

   (A)     shows that there was compliance; and

   (B)     in case the Minister decides under section 108 that, in spite of the statement under sub-subparagraph (A), there was non-compliance shows cause why the visa should not be cancelled

   …

4. Section 108 is entitled “Decision about non-compliance” and provides:

   The Minister is to:

   (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

   (b)decide whether there was non-compliance by the visa holder in the way described in the notice.

5. Section 109 is entitled “Cancellation of visa if information incorrect” and provides:

   (1)     The Minister, after:

   (a)deciding under section 108 that there was non-compliance by the holder of a visa; and

   (b)considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and

   (c)having regard to any prescribed circumstances;

   may cancel the visa.

6. The prescribed circumstances to which the Minister must have regard are in regulation 2.41 of the Regulations, which provides:

   For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are prescribed:

   (a)the correct information;

   (b)the content of the genuine document (if any);

   (c)whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;

   (d)the circumstances in which the non-compliance occurred;

   (e)the present circumstances of the visa holder;

   (f)the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;

   (g)any other instances of non-compliance by the visa holder known to the Minister;

   (h)the time that has elapsed since the non-compliance;

   (j)any breaches of the law since the non-compliance and the seriousness of those breaches;

   (k)any contribution made by the holder to the community.

7. As clarified at the hearing before me, Mr Anashkin’s complaint is that the Tribunal failed to turn its mind to the fact of expungement. The essence of the Minister’s response is that the Tribunal had rejected Mr Anashkin’s assertions on the basis of a lack of credibility and it was unnecessary for the Tribunal to determine what “expungement” meant and what was said to have been “expunged”. I accept from the legislation and case law relied upon by Mr Anashkin that, although the concept of “expungement” is not generally understood or applied in Australia, it can equate, in criminal law, to the quashing of a conviction. It is possible that if a conviction is expunged that, as a matter of law, it never existed. However, it is also possible that, on the facts of this case, what was said to have been expunged was not Mr Anashkin’s conviction, but merely the record of it. The Russian original of the certificate from the Nakhodkinsky Municipal Court, apparently bearing the seal of the Court, appears at CB 324. A translation appears at CB 325. The translated certificate states relevantly that on 29 December 2005 by resolution of the Nakhodkinsky Municipal Court the sentence of the Judicial Division for criminal cases of the Primorsky Regional Court dated 20 December 2000 was expunged and that, in accordance with part 6 of article 86 of the Criminal Code of the Russian Federation, a cancellation or an expunging of a record of conviction annuls all legal consequences related to a conviction. Based on the certificate, it is unclear whether the conviction had been quashed ab initio or whether the record of the conviction had merely been expunged. 

8. The Tribunal had before it legal opinion submitted by Mr Anashkin that the consequence of the resolution of the Nakhodkinsky Municipal Court was that the conviction recorded by the Primorsky Regional Court ceased to exist in law.  Putting to one side the question of whether, in the hierarchy of Russian courts, a conviction of a Regional Court could be overturned by resolution of a Municipal Court, it cannot be said that the information before the Tribunal necessarily pointed to the conviction of Mr Anashkin having been quashed in the sense of being set aside ab initio.

9. The Tribunal did not resolve that question and that is Mr Anashkin’s complaint. 

10. It is tolerably clear from the record of the Tribunal decision that the Tribunal determined that there were three reasons why there were grounds for cancelling his visa.  One of those was that Mr Anashkin had provided a fabricated Russian police clearance certificate which was found to be a bogus document[50].  Mr Anashkin makes no complaint about that finding.  Secondly, the Tribunal found at [45] as follows[51]: 

    The Tribunal finds on the evidence that the applicant was arrested in 1994 in Russia, charged and convicted of a number of crimes for which he served a term of imprisonment.  The information he provided regarding his criminal convictions in his visa application does not accurately reflect this fact.  The question on the form asks about “spent” convictions.  The applicant was obliged to answer that he had spent convictions, if in fact this was the case, arising from his arrest in 1994.  The Tribunal does not accept the argument that the applicant did not have to state that he had spent convictions because they had been expunged from his record.  The Tribunal finds that the applicant provided incorrect information regarding his criminal history in his application for a partner visa.

    [50] see CB 405-406 at [46].

    [51] CB 405.

11. The Tribunal also had regard to Mr Anashkin’s conviction in 1986 for practising karate.  Again, Mr Anashkin makes no complaint about that issue.  Mr Anashkin’s complaint is that the Tribunal equated expunged convictions with spent convictions and did not turn its mind to the question of whether, following the resolution of the Nakhodkinsky Municipal Court, the conviction ever existed. 

12. I do not accept the Minister’s contention that this case can simply be disposed of on the basis of an adverse credibility finding by the Tribunal.  The Tribunal deals with that issue at [70] of its reasons[52] but only in relation to the question of whether the Tribunal should exercise its discretion not to cancel the visa.  The issue of credibility was not demonstrably a factor in the Tribunal determining that Mr Anashkin had given incorrect information in the application forms which, of itself, provided grounds for cancelling the visa.

    [52] CB 410.

13. In my opinion, it was open to the Tribunal to conclude, as it did, that, assuming the belated assertion that Mr Anashkin’s conviction in 1994 had been expunged was correct, only the record of his conviction had been expunged by the Nakhodkinsky Municipal Court, not the conviction itself.  The certificate issued from that Court, as translated into English, was ambiguous.  The issue of what the effect was of the expungement resolution under Russian law was a question of fact for the Tribunal to determine.  It was not bound to accept the opinion of the lawyers engaged by Mr Anashkin. 

14. Further, I cannot accept the core proposition advanced by counsel for Mr Anashkin that the Tribunal had failed to turn its mind to the essential question of whether the expungement relied upon by Mr Anashkin meant that he had not provided incorrect information in answering “No” to the questions on the forms.  The issue was discussed at length at the Tribunal hearing and is addressed in detail in the Tribunal’s reasons.  It is apparent from the transcript of the hearing at page 9 that the Tribunal had a preliminary view that only the record of the conviction was expunged, not the conviction itself.  That view lies at the heart of the Tribunal’s reasons at [45][53]. 

    [53] CB 405.

15. It is certainly arguable that the questions on the forms do not require the disclosure of convictions which have been quashed ab initio.  The wording of the two questions on the two forms is not consistent (which is unfortunate) and Question 32 in Form 80 is expressed more clearly than Question 80 in Form 47SP.  It is arguable that the reference to “wrongful conviction” in Question 32 in Form 80 is intended to indicate that convictions which have been set aside or quashed as wrongful convictions do not need to be disclosed.  That said, however, the position is far from clear and an applicant for a visa should be able to answer the questions without having to resort to legal advice.  With that in mind, it is equally arguable that applicants are required to disclose any conviction as a fact, regardless of what subsequently occurred.  This would be on the basis that the particular circumstances should be addressed by reference to the exercise of discretion.

16. The Tribunal did not express any opinion on that issue one way or the other.  It did not need to because it took the view that in Mr Anashkin’s circumstances it was only the record of the conviction which had been expunged which equated to either a “spent conviction” or a conviction which had been removed from official records.  Mr Anashkin presented a different view but the Tribunal was not bound to accept it.  Its adherence to the view that only the record of the conviction had been expunged was open to it, as I have already found, and no jurisdictional error is disclosed.

Conclusion

1. I conclude that Mr Anashkin has failed to demonstrate any jurisdictional error in the decision of the Tribunal.  The decision is therefore a privative clause decision and the application must be dismissed.

2. I will so order.

3. I will hear the parties as to costs.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 16 March 2016