Baby (Migration)

[2021] AATA 3047

Baby (Migration) [2021] AATA 3047 (29 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bony Baby

CASE NUMBER:  2101586

DIBP REFERENCE(S):  BCC2020/2685186

MEMBER:James Lambie

DATE AND TIME OF

ORAL DECISION AND REASONS:         29 July 2021 at 11:31 am (QLD time)

DATE OF WRITTEN RECORD:                3 August 2021

PLACE OF DECISION:  Brisbane

CATCHWORDS

MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – risk to the health or safety of an individual – applicant convicted of an offence – court ordered no conviction recorded – taken not to be a conviction for any purpose – impact of a please of guilty – restraining order and fine – power to cancel visa does not arise – decision under review set aside         

LEGISLATION

Migration Act 1958, s 116
Migration Amendment (2014 Measures) (No 2) Regulation 2014, Schedule 3
Migration Regulations 1994, rr 1.20, 2.43
Queensland Sentencing Act, s 12

CASES

Maxwell v The Queen (1996) 184 CLR 501  

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 9 February 2021 to cancel the applicant’s Subclass 010 Bridging A (Class WA) visa under the Migration Act 1958 (the Act).

2. At the hearing on 29 July 2021 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an application for a review of a decision of the delegate of the Minister for Home Affairs to cancel the applicant's class WA subclass 010 bridging visa under section 116 of the Migration Act 1958. That decision is dated 9 February 2021. The delegate cancelled the visa under section 116(1)(g) on the prescribed ground that the applicant had been convicted of an offence against a law of the State of Queensland, and the regulation applicable to that is regulation 2.43(oa). The issue in the present case is whether the ground for cancellation was made out, and if so, whether the visa should be cancelled.

4. Mr Baby applied for a Tribunal review on 11 February 2021 within time, and provided the Tribunal with a record of the decision cancelling the visa.  Mr Baby appeared before the Tribunal on 29 July 2021 to give evidence and to present arguments.  He was represented by his solicitor, Mr Belissimo.  For the following reasons, the Tribunal has concluded that the decision to cancel Mr Baby's visa should be set aside. 

5. Under section 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. Relevant to this application, these include the grounds set out in section 116(1)(g). If satisfied that this ground for cancellation is made out, the decision-maker must proceed to consider whether the visa should be cancelled, having regard to all of the relevant circumstances, which may include matters of government policy.

6. On 8 October 2020, Mr Baby appeared before the Ipswich Magistrates Court and entered a plea of guilty to two charges of computer hacking and misuse and cause detriment (domestic violence offence) and one charge of distributing intimate images.  The Court fined him $2000 and ordered that no conviction be recorded.

7. The Tribunal has considered all relevant evidence in reaching its decision. A visa may be cancelled under section 116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. Prescribed grounds are set out in the Regulations, relevantly in this case, in regulation 2.43(oa), which reads:

   In the case of the holder of a temporary visa, other than a subclass 050 (bridging) visa, subclass 051 bridging (protection applicant) visa or a subclass 444 (special category) visa, that the Minister is satisfied that the holder has been convicted of an offence against the law of the Commonwealth, a state or a territory (whether or not the holder held the visa at the time of conviction and regardless of the penalty imposed (if any)).

8. The delegate considered that the proviso, "regardless of the penalty imposed, if any", applied also to an order, in this case, of the learned sentencing magistrate not to enter a conviction.  However, I have had regard to the Queensland Sentencing Act which provides in section 12(3), relevantly:

   Except as otherwise expressly provided by this or another Act, (a) a conviction without recording the conviction is taken not to be a conviction for any purpose.

9. That is the relevant provision. Subsection 12(4) provides for a limitation which applies to appeals against sentence in proceedings for variation or contravention of a sentence, proceedings for a subsequent offence and subsequent proceedings against the offender for the same offence, none of which are applicable in this matter. Therefore, to grant a cancellation under section 116(1)(g), regulation 2.43(1)(oa) requires the Tribunal to find that the applicant has been convicted of an offence against a law of the Commonwealth, a State or a Territory

10. I have been taken to the explanatory statement for the Migration Amendment (2014 Measures) (No 2) Regulation 2014 which introduced regulation 2.43(1)(oa), and to Schedule 3, attachment B of that explanatory statement, which indicates that the intention behind the cancellation ground was to allow for broader cancellation powers in circumstances where a visa holder's behaviour casts doubt on their regard for Australian law.  There is no indication in the Act or the Regulations that a finding of guilt where no conviction is recorded should be taken as a conviction for the purpose of the Act and the Regulations.

11. I have for contrast been taken to regulation 1.20KB, which specifically relates to a person who has been charged but not convicted, where, for example, the charge has been withdrawn, dismissed or otherwise disposed of without the recording of a conviction, and those who have been convicted, and it appears to me from the distinction that has been drawn in that other regulation that, in the absence of any express provision in regulation 2.43(1)(oa) that I might have regard to that as a guide to interpretation.  Therefore, in my view, it does not seem from the context of the legislation that regulation 2.43(1)(oa) needs to be read or should be read as being enlivened when a person is found guilty and no conviction is recorded.

12. I have had regard to the possible availability of the power in section 116(1)(e) to cancel the visas of people who may be a risk to the health, safety or good order of individuals who are in the community, but who need not have been convicted. That might have been grounds on which the delegate wished to consider cancellation but that was not the ground stated in the notice of intention to cancel the visa, and it was not the basis for the decision that was made by the delegate. In his decision, the delegate referred to the common law, which permitted an interpretation of the entry of a plea of guilty as constituting conviction. The common law to which I have had regard is that of the - or stated by the High Court in the case of Maxwell v The Queen (1996) 184 CLR 501, in which at paragraph 17 Dawson and McHugh JJ held that:

    The question of what amounts to a conviction admits of no single comprehensive answer.  Indeed, the answer to the question rather depends upon the context in which it is asked.

13. Their Honours held that

    A plea of guilty is not itself indicative of a conviction, and a conviction does not occur until there has been an acceptance of the plea amounting to a determination.

14. When this line of reasoning is applied to the facts applicable to this application, which resulted in a fine and a restraining order, it could be arguable that the necessary elements for a conviction have occurred.  However, the facts in Maxwell are very different to the facts in this matter.  In the High Court's decision, there was a determination as to whether the court could reject the guilty plea after new evidence had come to light, rather than the issue of where a court has made a finding of guilt without recording a conviction

15. I think, having regard to the facts before the tribunal, and following the ruling of Dawson and McHugh JJ, where I am to determine whether there has been for the purposes of the cancellation power a conviction, I should have regard to the context in which the question is asked.  In my view, that question is answered by section 12(3) of the Sentencing Act.  That is, that a finding of guilt without the recording of a conviction should not be taken to be a conviction for any purpose, and there is nothing in regulation 2.43(1)(oa) that is directly inconsistent with that that might raise any question of inconsistency of State and Commonwealth legislation.

16. I have also had regard to the Department's procedural guidelines, known as PAM3, which, as the name suggests, establishes policy, but not necessarily any matter that is binding on the Tribunal as to the exercise of its powers of review.  Now, the examples that they provide in determining whether a conviction had occurred limit themselves to the imposition of a custodial sentence or a good behaviour bond, without directing themselves towards the entry of an order that no conviction be recorded.  PAM3 therefore provides no relevant guidance in this matter.

17. For these reasons, I am not satisfied that the ground for cancellation in section 116(1)(g) exists. It follows that the power to cancel Mr Baby's visa does not arise. Therefore, the Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant's visa.

    DECISION

    The decision under review be set aside and substituted with a decision not to cancel the visa.

    James Lambie
    Senior Member