Kim (Migration)

[2021] AATA 4582

Kim (Migration) [2021] AATA 4582 (18 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Byeongjin Kim

CASE NUMBER:  2017058

HOME AFFAIRS REFERENCE(S):          BCC2020/2337739

MEMBER:Bridget Cullen

DATE:18 November 2021

PLACE OF DECISION:  Brisbane

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 18 November 2021 at 4.51pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – applicant convicted of an offence – no conviction recorded – consideration of discretion – further serious charges not particularised in cancellation – procedural fairness – decision under review set aside           

LEGISLATION

Criminal Code Act 1899 (Qld)
Migration Act 1958, ss 116, 118, 127
Migration Regulations 1994, r 2.43

CASES

Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58       

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 16 November 2020 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 (the Act).

2. The delegate cancelled the visa under s.116(1)(g) on the basis that a prescribed ground for cancellation existed, and the delegate exercised their discretion to cancel the visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 8 September 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

4. The applicant was represented in relation to the review by a legal practitioner, Mr Chang Min Park. The representative attended the Tribunal hearing.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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?

7. 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 r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(oa) is relevant.

8. Regulation 2.43(1)(oa) states the following:

   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))

9. The Department File, and the Summons material in relation to the applicant, reveal that on 3 April 2019, the applicant was convicted of the offence of Wilful Damage, where the applicant was put under a 12-month good behaviour bond, ordered to pay restitution of $698.50 and had a recognisance of $1,000 placed; no conviction was recorded by the Magistrate.

10. In response to the Department’s Notice of Intention to Consider Cancellation, the applicant’s then representative submitted that the applicant’s circumstances did not correlate with the legislation as his offence resulted in a no conviction recorded outcome. The Delegate disagreed with this submission; in essence, that although there was no conviction recorded, there was a conviction, and as such, found that the applicant’s visa was liable for cancellation under s.116(1)(g) of the Act as r.2.43(1)(oa) was enlivened.

11. The Representative’s submissions dated 1 September 2021 in relation to r.2.43(1)(oa) state the following:

    “…we are of the view that the applicant’s visa cancellation is essentially being utilised as a sanction against him by the Department for his conviction of wilful damage. We note the disproportionality of this result, as a mere recognisance and restitution order which the applicant paid promptly, has effectively ended his dreams of a life in Australia.

    Although, in a technical and literal sense, any conviction may give rise to a ground for cancellation under the prescribed ground of r.2.43(1)(oa), we encourage the Tribunal to consider the true intentions of the legislators. It is grossly unjust, disproportionate and unreasonable for a visa cancellation to be an appropriate and acceptable response of the Department in relation to the applicant’s conviction.

    We believe that this submission is comprehensible when the Tribunal has access to the relevant section in the Department’s Procedure Instruction in the subject of General visa cancellation, where the specific examples on the particular convictions in consideration of r.2.43(1)(oa) were a custodial sentence conviction or a case involving conviction of Assault Occasioning Bodily Harm”

12. The Tribunal considers that it is more appropriate to deal with the substance of the applicant’s submissions, as set out in the paragraph above, in relation to the consideration of discretion. This is for the reason that, as noted by the delegate, the term “conviction” is defined by the Criminal Code Act 1899 (Qld) as, “a finding of guilt, or the acceptance of a plea of guilty, by a court.” The Tribunal does not accept that “no conviction recorded” means that there has been no “conviction”. Rather, the applicant was convicted, but this was not recorded by the Magistrate.

13. It is therefore plain that a ground for cancellation exists as the applicant, who was the holder of a temporary visa, has been convicted of an offence against the law of the State of Queensland.

14. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

15. 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'.

    Circumstances in which ground of cancellation arose

16. For reasons that will become apparent, the Tribunal has decided to firstly consider this factor in relation to the exercise of discretion.

17. The charge which the Department founded cancellation on arose out of the applicant causing damage to his former girlfriend’s vehicle. Although the summons material obtained from the Queensland Police Service (QPS) refers to various allegations of domestic violence, there is no information before the Tribunal suggesting that the applicant was actually charged with any domestic violence offences. The Tribunal is a body that conducts review of administrative decisions – it does not have any criminal jurisdiction. The Tribunal recognises that there a range of factors that are considered by QPS in relation to the progression of charges, but in this matter, the applicant has been convicted of what is a reasonably minor property offence. The applicant paid restitution to the victim in the amount of $698.50.

18. The issuing of a Notice of Intention to Consider Cancellation (NOICC) is an important procedural step in the cancellation process. The Department must take the time to set out the proposed grounds for cancellation with particularity. These are the only grounds that the Tribunal can consider in deciding whether or not to cancel.

19. Here, it is apparent that the Department was aware that the applicant was facing other very serious charges at the time that it decided to cancel his visa on the basis of the wilful property conviction. The Tribunal cannot add new grounds that were not particularised in the NOICC – the Tribunal is only able to review the decision as it is made by the Department.

20. Section 127(2)(a) of the Act requires that the NOICC must “specify the ground for cancellation”. It is clear that at the time the Department specified the ground for cancellation in the NOICC, it had information clearly indicating that the applicant was also facing serious charges of rape, as well as an unlawful stalking domestic violence offence.

21. There is an email between Departmental employees on the file, dated 22 September 2020 which reveals that the Department considered the more serious charges, and which says:

    Was wondering if you would be able to have a look at the below and attached when you have a moment re BCC2020/2337739 – CID 91097322130. {Name redacted} grabbed the SoF and QLD criminal history off QPRIME for me yesterday.
    I believe there would be grounds under 1e, given he has breached the DVO a couple of times in quick succession, and the nature of the breaches – the car pursuit and forcing himself into the victim’s house.

    The informant also stated in his email that there are more serious charges pending – should I ask what/when these charges will be laid?

    I think the below means yesterday’s hearing was a bail hearing, not sure of the result.

22. The Tribunal is not in a position to understand why the delegate, knowing of these very serious charges, then proceeded to issue the NOICC only in relation to the applicant’s minor property damage conviction pursuant to s.116(1)(g), a month after the above email was exchanged between Departmental employees.

23. Were the Tribunal to make a decision to affirm the cancellation, it would be erroneously cancelling on the basis of s.116(1)(e) and matters not ever put to the applicant in the NOICC. The Department, in the actual Notice of Cancellation (“NOC”), does not mention the applicant’s other charges, but states that, “there are no other matters for consideration relevant to this decision”.

24. The applicant’s representative has flagged, and the Tribunal agrees, that the decision of the Full Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58 is authority for the proposition that the Tribunal cannot cancel on the basis of a different provision of s.116. In Ahmed, the Full Federal Court, in addressing the power of the Tribunal to review defective decisions, said that:

    ‘The subject matter of that review is to be identified by examining the boundaries of the administrative question before the delegate.’ 

25. The Tribunal is duty bound to follow the Full Federal Court’s guidance in this respect. The applicant concedes that, if this Tribunal sets aside the cancellation, that the Department may very likely then take further steps in relation to his visa. Importantly, he submits that this will then afford him the opportunity to respond to any issues raised by the Department facilitating procedural fairness and natural justice.

26. The Tribunal has considered the weight that it can put on the charges that were the subject of cancellation – those being the applicant’s conviction for the offence of wilful damage. In this regard, the Tribunal has referred to the PAM3 for guidance. The section of the PAM3 applicable to r. 2.43(1)(oa) – Convictions for temporary visa holders - provides the following two examples of circumstances in which reg. 2.43(1)(oa) may apply:

    • If a Working Holiday (TZ-417) visa holder has been convicted of an offence against a State law and sentenced to a three month custodial sentence.
    • If a Student visa holder has been convicted of one count of assault occasioning actual bodily harm and one count of affray and sentenced to a twelve month good behaviour bond.

27. While the Tribunal considers that any temporary visa holder should comply with all Australian law, it is clear that the conviction for wilful damage, resulting in a fine, is significantly less serious than a three month custodial sentence or a count of assault occasioning bodily harm. Consequentially, while the Tribunal can place weight on the conviction as a factor in favour of cancellation, it cannot place enough weight on it as a stand alone factor to cancel.

28. Nor can the Tribunal place enough weight on the other charges the applicant faces as a discretionary factor in favour of cancellation, where the Department was aware and did not address the charges in its NOICC or in the NOC.

29. All of the other discretionary factors weigh in the applicant’s favour – he has been in Australia since 2014. The applicant is employed and has a letter of support from his employer indicating an awareness of unspecified “unfortunate circumstances”. The applicant has a letter from his psychologist expressing a view that he is able to “secure his mental health” with “continuation of regular treatment”.

30. The Tribunal is left to balance the circumstances surrounding the reasonably minor wilful damage conviction with the rest of the factors that collectively weigh in the applicant’s favour. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled on the basis that is before the Tribunal in relation to s.116(1)(g).

31. In the applicant’s legal submissions, the representative submits the following:

    “Should the Department have concerns on the applicant’s current criminal proceedings, there is another power such as section 116(1)(e) of the Act as they once considered in the matter as on 22 September 2020 and by the ramification of the section 118 of the Act, the applicant requests his matter to be referred to the Department following this Tribunal’s set aside of the cancellation, as we submit an exercise of another cancellation power at the level of the Tribunal is not supported for the purposes of review of the decision.”

32. The Tribunal will, in accordance with the applicant’s request, facilitate the Department becoming expeditiously aware of this decision by sending it to the Tribunal Liaison contact for the Department. The Department can then consider the circumstances surrounding the full scope of the applicant’s charges, as it has the power to cancel on a different ground – a power that the Tribunal does not have.

    DECISION

33. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

    Bridget Cullen
    Member