Singh (Migration)

[2019] AATA 1069

Singh (Migration) [2019] AATA 1069 (8 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Navdeep Singh

CASE NUMBER:  1836364

HOME AFFAIRS REFERENCE(S):           BCC2018/4766919

MEMBER:Rachel Westaway

DATE OF ORAL DECISION:  8 March 2019

DATE OF WRITTEN STATEMENT:         8 March 2019

PLACE OF DECISION:  Melbourne

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 08 March 2019 at 7:35pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – convicted of an offence against a law of a State – finding of guilt without conviction – decision under review set aside

LEGISLATION
Criminal Procedure Act 2009 (Vic), s 3
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), rr 1.20KB, 2.43
Sentencing Act 1991 (Vic), ss 7, 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 6 December 2018 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 (the Act).

2. The delegate cancelled the visa under s.116(1)(g) being satisfied that a prescribed ground for cancelling the visa applied and giving consideration to relevant factors raised by the applicant when considering the exercise of the use of discretion.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The Tribunal gave its decision on the review at the conclusion of the hearing held on 8 March 2019. The following are the reasons for that decision.

5. The applicant appeared before the Tribunal on 8 March 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

6. The applicant was represented in relation to the review by his registered migration agent.

7. 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

8. 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) of the Migration Act 1958 relying on the prescribed grounds at Migration Regulation 2.43(1)(oa).

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

11. Regulation 2.43(1)(oa) states that the Minister may cancel a visa if the Minister is satisfied that if 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)).

12. Following the charges, the matter was heard in the Magistrates’ Court of Victoria, Melbourne on 14 September 2018. The Tribunal is in receipt of the Notice of Order. The court order stated that the application “without conviction, fined $2500 with $82.40 in statutory costs” Department file BCC2018/4766919 ff:57.

13. The Tribunal has had regard to the context of relevant provisions from the Sentencing Act 1991 (Vic) (the Sentencing Act) and the Criminal Procedure Act 2009 (Vic) (the CP Act) and it appears that a finding of guilt without a conviction being recorded should not be taken as having been ‘convicted’ for the purposes of r.2.43(1)(oa).

14. For the cancellation ground prescribed in r.2.43(1)(oa) to be made out, the decision maker must be satisfied that the applicant has been convicted of an offence against a law of the Commonwealth, a State or Territory. The ground applies whether the visa holder held the visa at the time of the conviction and regardless of the penalty imposed (if any).

15. The Tribunal has had regard to the Explanatory Statement (ES) for the Migration Amendment (2014 Measures No.2) Regulation 2014, which introduced r.2.43(1)(oa), it states that the introduction of this cancellation ground was to provide a ‘lower threshold for the consideration of visa cancellation for [persons] whose conduct falls short of what is expected’: Attachment B, ‘Overview of the Regulation – Schedule 3’. In the same section of the ES, it is stated that the amendment was made in the context that temporary visa holders are expected to make a positive contribution to Australian society, respect community values, and obey Australia’s laws. The ES further stated that the ground will apply if a person is convicted at any time during their stay in Australia, not necessarily while the holder of the temporary visa subject to cancellation: Attachment C, Schedule 3 – ‘Character and general visa cancellation’. This indicates 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. However, this intention may not have been reflected in the use of the word ‘convicted’ when the legislative context in Victoria is considered.

16. When sentencing a person under s.7 of the Sentencing Act in Victoria, a court has discretion to do so with or without recording a conviction. Section 8 provides the court with guidance as to the circumstances it should consider in exercising its discretion. Section 8(2) of the Sentencing Act 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.

17. There is no indication in the Migration Act 1958 (Cth) (the Act) or the Migration Regulations 1994 (Cth) (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)).

18. Section 8(3) of the Sentencing Act specifies that, for appeals and related or subsequent proceedings, a finding of guilt without the recording of a conviction has the same effect as if one had been recorded. Section 3 of the CP Act defines ‘conviction’, in Chapter 6 of the CP Act (which relates to appeals), as including a finding of guilt by a court, whether or not a conviction is recorded. When the CP Act was introduced, this definition extended to Chapter 8, containing general provisions, but was amended later that year by the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 (Vic) to apply only to Chapter 6, relating to appeals. The definition of ‘conviction’ in s.3 of the CP Act is consistent with s.8(3) of the Sentencing Act which confines the equating of a finding of guilt without a conviction to a finding of guilt with a conviction to appeals and related or subsequent proceedings.

19. The Tribunal has also had regard to the Department’s Procedural Guidelines and PAM 3. They do indicate how the Department construes ‘convicted’ for the purposes of r.2.43(1)(oa). The Department’s policy on ‘General visa cancellation powers (s109, s116, s128, 134B and s140)’ gives examples of circumstances of when r.2.43(1)(oa) may apply. However in both circumstances the applicant has been sentenced.

    •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.

20. The Tribunal is also cognisant that a cancellation under s116(1)(e)(i) allows that the Minister may cancel a visa if he or she is satisfied that the presence of its holder in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community. This ground for cancellation could have been considered and can be interpreted more broadly but was not.

21. The Tribunal has considered the applicant’s finding of guilt without a conviction and does not accept that from the context of the Victorian legislation that r.2.43(1)(oa) is enlivened when a person is found guilty and no conviction is recorded.

22. 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

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

    Rachel Westaway
    Senior Member