Rakhra (Migration) - [2020] AATA 5409

Rakhra (Migration) [2020] AATA 5409 (18 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Baljeet Singh Rakhra
CASE NUMBER:  2002185
HOME AFFAIRS REFERENCE(S):          BCC2019/3240430
MEMBER:Kira Raif
DATE:18 December 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.

Statement made on 18 December 2020 at 2:02pm
CATCHWORDS
MIGRATION – cancellation – Partner (Provisional) (Class UF) – Subclass 309 (Spouse (Provisional)) – criminal offence – finding of guilt and fine without conviction recorded – state Sentencing Act provides that such finding is not to be taken as conviction for any purpose – no provision in Migration Act to distinguish state Act – ground for cancellation not made out – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 116(1)(g)
Migration Regulations 1994 (Cth), rr 1.20KB, 2.43(1)(oa)
Sentencing Act 1991 (Vic), s 8(2)
CASES
HA & SB v Director of Public Prosecutions [2003] NSWSC 347
Re Stubbs [1947] NSWStRp 12
STATEMENT OF DECISION AND REASONS
Application for review

This is an application for review of a decision dated 29 January 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa under s.116 of the Migration Act 1958 (the Act).
The applicant is a national of India, born in October 1989. He was granted a Class UF Partner Provisional visa in July 2017. The delegate subsequently issued the Notice of Intention to Cancel (NOICC) the applicant’s visa because the delegate formed the view that the applicant had been convicted of an offence and that there were grounds for cancelling the visa under s. 116(1)(g) and r. 2.43(1)(oa). The applicant provided his response to the NOICC and his visa was cancelled on 20 January 2020. The applicant seeks review of the delegate’s decision.
No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it. The applicant was represented in relation to the review by his 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 indicates that the applicant had been found guilty of common law assault on 11 September 2019 at Broadmeadows Magistrates Court and was fined $3000 without conviction.
In his written submissions to the delegate and the Tribunal the applicant claims, essentially, that he has not been convicted of an offence, noting that under s. 8(2) of the Sentencing Act 1991 (Vic), a finding of guilt without recording a conviction must not be taken to be a conviction for any purpose. The applicant argues that the ground for cancellation therefore does not arise. For the reasons that follow, the Tribunal agrees with the applicant’s argument.
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. For example, r.1.20KB draws a distinction between people who have been charged but not convicted (‘the charge has been withdrawn, dismissed or otherwise disposed of without the recording of a conviction’ in r.1.20KB(2)) and those who have been convicted (including where the conviction has been quashed or otherwise set aside: r.1.20KB(3)). There is no such distinction for the purpose of r. 2.43(1)(oa).
Re Stubbs [1947] NSWStRp 12 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. It can be distinguished from the applicant’s factual scenario where s s.8(2) of the Sentencing Act 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. There appears to be no legislative provision that distinguishes s.8(2) of the Sentencing Act in the Migration Act. This would mean that the applicant has not been convicted in the context of the Sentencing Act.
Having regard to the above, the Tribunal has formed the view that a finding of guilt without conviction does not equate to a conviction for the purpose of r. 2.43. The Tribunal is not satisfied that the ground for cancellation is made out.
The Tribunal is 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 might be a risk to others, whether or not a conviction has been recorded with respect to the visa applicant. This is not the provision on which the delegate relied and the Tribunal has given it no consideration in the present case.
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
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.
Kira Raif
Senior Member