OTAKE (Migration)

[2022] AATA 1026

OTAKE (Migration) [2022] AATA 1026 (4 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Hitomi OTAKE

REPRESENTATIVE:  Mr Hideki Shimizu

CASE NUMBER:  2119691

HOME AFFAIRS REFERENCE(S):          BCC2020/1662234

MEMBER:David McCulloch

DATE:4 April 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 04 April 2022 at 8:21am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – applicant convicted of an offence – conviction without recording the conviction – decision under review set aside  

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, r 2.43; Schedule 2 cl 573.111; Schedule 8, Condition 8564
Penalties and Sentences Act 1992 (Qld), s 12

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 December 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a citizen of Japan born on 23 April 1994. The visa that was cancelled was granted on 26 March 2020, expiring on 22 December 2021.

3. A Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 3 December 2021. A response to the NOICC from the applicant’s representative was provided on 16 December 2021.

4. The delegate cancelled the visa under s 116(1)(g) on the basis that the applicant has been convicted of an offence against a law of the Commonwealth or a State or Territory. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicant is currently lawfully in Australia on a Bridging visa WE-050. Her Bridging visa has the following conditions: 8101 (no work); 8207 (no study); 8506 (must notify change of address); and 8564 (must not engage in criminal conduct).

6. According to information obtained through the Provider Registration and International Student Management System (PRISMS) database held by the Department of Education, Skills and Employment, the applicant is enrolled in a Certificate IV in Business from 27 February 2023 until 10 May 2024.

7. In the circumstances of this case, the Tribunal has made a decision in the applicant’s favour without the need for a hearing.

8. 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

9. 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?

10. 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. Regulation 2.43(1)(oa) provides that a ground for cancellation is that the holder of the visa 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)).

11. The delegate’s decision record and documents on the Department file indicate that the applicant has the following conviction dated 19 May 2021 from the Brisbane Magistrates’ Court in relation to criminal charges: ‘knowingly participate in the provision of prostitution and possess tainted property’, with no conviction recorded on any charges.

12. The submission dated 16 December 2021 provided in response to the NOICC makes reference to s 12(3) of the Penalties and Sentences Act 1992 (Qld) which indicates that, except as provided by the Act or any other Act, a conviction without recording the conviction is taken not to be a conviction for any purpose. The Tribunal has confirmed that the Queensland legislation does contain a provision to this effect.

13. The submission makes reference to a prior Tribunal decision in the Queensland context which indicated that s 12(3) of the Penalties and Sentences Act 1992 (Qld) operated so that a finding of guilt without recording the conviction should not be taken to be a conviction for any purposes and that this interpretation was not inconsistent with the provisions of the Act or Regulations.

14. The delegate’s decision, in contrast, finds that a formal finding of guilt constitutes ‘complete orders of the Court’ as described in the common law definition of ‘conviction’.

15. Whether this is the case or not it is not relevant because s 12(3) only refers to the contrary provisions in legislation. Neither Queensland nor Commonwealth legislation provides any contrary indication that the non-recording of a conviction would constitute a conviction for the purposes of reg 2.43(1)(oa).

16. In these circumstances the Tribunal does not consider that the applicant has been convicted for the purpose of reg 2.43(1)(oa).

17. 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.

    DECISION

18. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    David McCulloch
    Member