Galang (Migration) - [2018] AATA 4947

Galang (Migration) [2018] AATA 4947 (30 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Noreen Ortiz Galang
CASE NUMBER:  1803687
HOME AFFAIRS REFERENCE(S):           BCC2017/4085856
MEMBER:Kira Raif
DATE:30 October 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 489 - Skilled - Regional (Provisional) visa.
Statement made on 30 October 2018 at 12:31pm

CATCHWORDS
MIGRATION – Cancellation – Skilled Regional Sponsored (Provisional) – Subclass 489 (Skilled- Regional (Provisional) – criminal convictions – good behaviour bond – no conviction recorded – remorseful of conduct – offence at the lower end of the scale – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), r 2.43
STATEMENT OF DECISION AND REASONS
Application for review

This is an application for review of a decision dated 7 February 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 489 - Skilled - Regional (Provisional) visa under s.116 of the Migration Act 1958 (the Act).
The applicant is a national of the Philippines born in October 1982. She was granted the Class SP Subclass 489 visa on 6 July 2015. On 8 December 2017 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) of her visa under s. 116(1)(g) and r. 2.43(1)(oa) because the applicant had been convicted of an offence in Australia. The applicant provided her response to the NOICC and her visa was cancelled on 7 February 2018. The applicant seeks review of the delegate’s decision.
The applicant appeared before the Tribunal on 22 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from two of the applicant’s friends. The applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Relevant law
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.
A visa may be cancelled under s.116(1)(g) if the Minister or the Tribunal is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(oa) is relevant. It provides the following
(1) For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:
(oa)in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa - that the Minister is satisfied that the holder has been convicted 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 the penalty imposed (if any))
Does the ground for cancellation exist?
The applicant provided to the Tribunal a copy of the primary decision record. It refers to the applicant being convicted of an offence ‘unlawfully stalking’, which occurred on 27 January 2017. The offence was proved without proceeding to conviction. The applicant received a good behaviour bond.
The applicant states in her response to the NOICC that no conviction was recorded and therefore there are no grounds for cancellation. The representative submits that s. 116(1)(g) refers to a conviction as establishing the ground for cancellation. There is no definition of ‘conviction’ while common law refers to conviction as a finding of guilt. The representative refers to a number of judicial authorities and argues that the sentencing judge decided not to record a conviction against the applicant. On that reasoning, a finding of guilt cannot be equated to a conviction.
The Tribunal accepts that in this case, the sentencing judge Wallace J exercised his discretion under s.7 of the Sentencing Act (NT) to impose a good behaviour bond ‘without recording a conviction’. When making this decision the sentencing Judge exercised his discretion in s.8 which provides guidance to the court as to what circumstances on when or when not to record a conviction. Further, s.8(2) states that:
(2) Except as otherwise provided by this or any other Act, a finding of guilt without the recording of a conviction must not be taken to be a conviction for any purpose.
There is no indication in the Migration Act and the Regulations that a finding of guilt without the recording of a conviction should be taken to be a conviction for the purpose of the Act and Regulations.
The Tribunal has considered the authorities to which the applicant refers. In Maxwell v R (1996)184 CLR 501, 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.’ Dawson and McHugh JJ then reasoned that a plea of guilty is not itself indicative of a conviction, a conviction does not occur until there has been an acceptance of the plea amounting to a determination. This line of reasoning applies to the current scenario since the applicant did enter a plea of guilty and this resulted in a good behaviour bond, that is, a determination, suggests the necessary elements for a conviction have occurred. However, as s.8(2) the Sentencing Act (NT) expressly states that recording a finding of conviction without a recording of one should not be recorded as to be taken to be a conviction for any purpose. This would mean that the applicant has not been convicted in the context of the Sentencing Act.
A similar line of reasoning was applied in Re Stubbs [1947] NSWStRp 12. This matter dealt with s.556A of the Crimes Act 1900, which required the Court to have regard to the applicant’s circumstances (that is their health, age or mental condition etc.) when convicting an offender. Davidson J held that since the language of s.556A gave the Court discretion to proceed to conviction and by refraining from so doing, it could not be a conviction within the meaning of s.526B of the Crimes Act 1900, provided that the Court acts judicially and not capriciously. Section 8 of the Sentencing Act contains a similar discretion in considering the applicant’s circumstances.
In HA & SB v The Director of Public Prosecutions [2003] NSWSC 347, the Court noted the significance of the existence or otherwise of a legislative provision allowing the court to make a determination “without proceeding to conviction” in interpreting the meaning of the word ‘conviction’. In that case, regarding the legislation applicable to children, the Court held that the finding of guilt followed by imposition of a penalty is the equivalent of a finding of guilt followed by imposition of a penalty in the case of adults and, in the absence of specific provision to the contrary or a context which required a different meaning, constituted a ‘conviction’ for the purposes of other legislation. The legislation stated in effect that a person cannot be given the benefit of a bond without a conviction. It can be distinguished from the applicant’s factual scenario as there appears to be no legislative provision that distinguishes s.8(2) of the Sentencing Act in the Migration Act.
The Tribunal is also mindful that a different ground for cancellation, provided under s. 116(1)(e) may be used where the presence of the visa holder in Australia is considered to be a risk, whether or not the visa holder has been convicted of an offence.
As no conviction has been recorded against the applicant, and having regard to s. 8(2) of the Sentencing Act (NT), the Tribunal has formed the view that the ground for cancellation has not been made out. As the ground for cancellation does not exist, the cancellation would be set aside.
However, even if the Tribunal is wrong in its interpretation, and if the applicant is taken to have been convicted of an offence, for the purpose of s. 116(1)(g) and r.2.43(1)(oa), the Tribunal would exercise discretion to set aside the cancellation. The Tribunal’s reasoning with respect to the discretionary considerations is set out below.
Consideration of discretion
There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
The purpose of the Skilled visa is to enable the applicant to work in her nominated skilled occupation in a regional area. The applicant claims that she is performing such work in her nominated occupation of an accountant or a related occupation of financial advisor. The applicant provided to the delegate evidence of her employment and character references. The applicant told the Tribunal that she left her life in Asia and her intention was to stay in Australia. She has been living in a regional area and has been employed. The Tribunal accepts that the applicant is fulfilling the purpose of her visa.
The extent of compliance with visa conditions
There is no evidence of the applicant’s non-compliance with visa conditions. The applicant told the Tribunal that she has lived in a regional area and has always been working and paying taxes.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant states that she is settled in Australia, is working in her occupation and contributes to the community. The applicant provided a number of documents and character references to the delegate and the Tribunal accepts that the applicant is settled in Australia. The applicant claims she has no links with any other country and would face financial hardship if her visa is cancelled. The Tribunal considers that claim problematic because the visa in question is a temporary visa which does not permit the applicant to remain in Australia indefinitely or even long term. According to the primary decision record, the visa was due to expire in 2019. Thus, there is no reason for the applicant to have lost her links to other countries as a result of holding a temporary and a fairly short Australia visa. While the Tribunal acknowledges the applicant’s evidence that she intended to settle in Australia, that is not the purpose of the temporary visa that is being considered here.
The applicant told the Tribunal that her parents are retired. Her mother is not well and needs medication and her pension is not sufficient. The applicant said that if her visa is cancelled, she would have to return to the Philippines and would not be able to afford to support her family. The applicant refers to the support she provides to the various charities in the Philippines. The Tribunal accepts that if the applicant was required to give up her job and leave the country, her financial situation may be adversely affected. However, the cancellation of the temporary Skilled visa that is the subject of this review need not result in the applicant leaving Australia. The applicant’s evidence to the Tribunal is that she has made an application for a permanent Skilled visa that is yet to be determined. The applicant would be entitled to apply for the bridging visa on the basis of that application. As a holder of a bridging visa, the applicant would be able to remain in Australia and there is likely to be very little practical difference to her circumstances as the applicant presently holds a bridging visa.
The applicant claims that her permanent visa may be affected by the cancellation of the provisional visa because she may be considered as not being of good character. The Tribunal does not accept that this is the case. The Tribunal notes that the character assessment wold be based on the applicant’s conviction and not on the cancellation of the provisional visa. The Tribunal is also mindful that character considerations under PIC 4001 of the Regulations and s. 501 of the Act are very different to those that arise for the present Tribunal in relation to the cancellation of the visa. Any finding of the present Tribunal in relation to the cancellation of the applicant’s provisional visa should have no effect on the assessment of the applicant’s eligibility for the permanent visa.
The applicant refers to the hardship she experienced as a result of the criminal process. She claims that put a lot of effort into migrating to Australia and settling in Darwin. She made a mistake of loving someone and as a result of the process, she has lost confidence in herself and it has affected her life. The applicant refers to emotional hardship because of the court process. The applicant states that she has lost some clients because of her legal problems and had to move to cheaper accommodation because she could not afford her property. The Tribunal accepts that evidence although the Tribunal is mindful that this hardship appears to have been caused by the criminal process rather than visa issues and the cancellation of the applicant’s visa.
Circumstances in which ground of cancellation arose
In her written response to the NOICC and oral evidence to the Tribunal the applicant refers to being a victim of family violence perpetrated by her former partner. The applicant claims that psychological, sexual and physical abuse caused her to make errors of judgments and she regrets stalking her former partner. The applicant states that the offending was at the lowest level, which is evident from the sentence and the fact that no conviction was recorded.
The applicant provided a more detailed declaration to the Tribunal on 19 October 2018 explaining the circumstances surrounding her conduct. In her declaration the applicant explains the circumstances leading to her conviction and the impact of that conviction. The applicant states that she met the complainant in September 2014 and they entered into a relationship. After she returned to Singapore, they kept in contact and the relationship grew. She returned to Australia in March 2015 on a Skilled visa and moved to be closer to her partner. She thought the relationship would turn to a long term commitment while her partner saw it as a casual relationship which was not exclusive. The relationship was at times violent and abusive and when her partner wanted to leave the relationship, she did not accept it and kept pursuing it. In October 2015 she found him with another woman. The applicant refers to putting a hose through his bedroom and seeing her former partner to show her feelings for him. She did not accept the relationship ending and later sent him an email. Due to a number of incidents, her former partner lodged an application for a domestic violence order and she did that as well. In January 2017 they both withdrew their applications on the basis of a mutual undertaking to stay away from each other. She made contact with him and her former partner made a complaint to the police and she was charged with stalking. The applicant refers to emotional, psychological and financial effect of the court case. The applicant states that some of the charges were withdrawn and in November 2017 she pleaded guilty to one count of stalking, which related to the email she sent to her former partner in December 2016 and some phone calls made in January 2017. The applicant refers to the comments of the sentencing judge that her offending was on the lower scale and that she was unlikely to reoffend. No conviction was recorded against her and she was given a good behaviour bond for 18 months and a penalty.
The Tribunal does not consider that the circumstances in which the ground for cancellation arose were beyond the applicant’s control. Whether or not the applicant had been subjected to family violence and abuse, as she claims, the Tribunal does not consider this justifies engaging in criminal conduct.
Past and present behaviour of the visa holder towards the department
The applicant claims she has been cooperative with the Department. There is no adverse information before the Tribunal about the applicant’s behaviour towards the Department.
Whether there would be consequential cancellations under s.140
There are no persons whose visas would be affected by consequential cancellations.
Whether there are mandatory legal consequences
If the applicant’s visa is cancelled and if she does not hold any other visa, the applicant may become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The applicant has an outstanding application for the Skilled visa and may be eligible to apply for the Bridging visa in relation to that application. There is no suggestion that the applicant will be indefinitely detained.
Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
There is no evidence, and the applicant does not claim, that international obligations would be breached as a result of the cancellation. There are no children affected by the cancellation. The Tribunal finds that Australia’s international obligations would not be breached as a result of the cancellation.
Any other relevant matters
The applicant’s friend and work supervisor provided oral evidence attesting to her good character and involvement with her work and the community in general. Written character references were provided to the delegate. The Tribunal accepts that evidence. The Tribunal accepts that those who gave evidence believe the applicant to be a good worker and a good person.
The applicant told the Tribunal that she had worked hard to get the temporary visa and she hoped it could be reinstated.
The applicant’s representative submits that all the circumstances need to be considered. The circumstances leading to the charge are not the usual circumstances. The applicant was affected by her feelings for the man and made calls which were unwanted. She has shown real remorse and accepted her mistake and learned from it. She has received counselling and has already suffered through the criminal process. The nature of the conduct is not such that should result in the cancellation of the provisional visa. The representative submits that the consequences of the cancellation are too significant given the nature of the offence.
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that there are no grounds for cancelling the applicant’s visa because there is no record of the conviction.
However, if the Tribunal is wrong in its approach, the Tribunal has also had regard to discretionary considerations. The Tribunal acknowledges that some hardship may be caused by the cancellation, because the applicant would need to seek another visa and there can be no guarantee that the visa would be granted. However, the Tribunal is also mindful that visa in question in a temporary visa which would not permit the applicant to remain in Australia permanently and the applicant needs to seek another visa in order to remain in Australia. She has done so. Contrary to the applicant’s submission, the Tribunal does not consider that the decision on the permanent visa application would be adversely affected if the applicant’s visa remains cancelled because the two applications are independent of each other and different considerations arise with respect to a visa cancellation and character assessment.

If the applicant is granted a Bridging visa to await the outcome of her permanent visa application, there would appear to be little practical difference to the applicant’s future. She would be able to remain in Australia as a holder of a bridging visa, there would be little practical difference to her present circumstances.
There are no consequential cancellations as a result of the cancellation of the applicant’s visa and there would be no breach of Australia’s international obligations.
The Tribunal places significant weight on the circumstances in which the ground for cancellation arose. The Tribunal accepts the applicant’s evidence about the breakdown of her relationship and the effect it had on her. The Tribunal acknowledges the applicant’s evidence that she is remorseful about her conduct and had received counselling. She claims to be in another relationship. The Tribunal has had regard to the sentencing remarks of Wallace J and the fact that no conviction was recorded in relation to the applicant. The Tribunal acknowledges that the offence appears to be at the lower end of the scale. The Tribunal also acknowledges the applicant’s evidence that she has already been punished through the criminal process and her standing in the community has been affected. In such circumstances, the Tribunal has formed the view that the cancellation of the visa would result in more severe punishment than is warranted by the circumstances of the offence.
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 489 - Skilled - Regional (Provisional) visa.
Kira Raif
Senior Member