Wu (Migration)

[2019] AATA 1454

Wu (Migration) [2019] AATA 1454 (8 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yanchang Wu

CASE NUMBER:  1830971

HOME AFFAIRS REFERENCE(S):           BCC2018/4098996

MEMBER:Jennifer Cripps Watts

DATE:8 May 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

Statement made on 08 May 2019 at 10:43am

CATCHWORDS
MIGRATION – cancellation – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – ground for cancellation – convicted of an offence against a law of a State – found guilty with no conviction recorded – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), rr 1.20KB, 2.43
Penalties and Sentencing Act 1992 (Qld), ss 3, 12

CASES
Maxwell v R (1996) 184 CLR 501

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 October 2018 made by a delegate of the Minister for Home Affairs (the delegate) to cancel the applicant’s Subclass 485 (Temporary Graduate) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(g), prescribed ground, on the basis that the applicant had been convicted of an offence against a law of the Commonwealth, a State or Territory: r.2.43(oa) of the Migration Regulations1994 (the Regulations).  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 applied for Tribunal review on 23 October 2018, within time, and provided the Tribunal with the record of decision cancelling his visa, of which he was notified on 15 October 2018.

4. The applicant appeared before the Tribunal on 2 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s uncle, Dr Tierang Liu.

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. Relevant to this case, these include the ground set out in s.116(1)(g), which is the ground under which applicant’s visa was cancelled. If satisfied that this 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.

7. The Tribunal has considered all relevant evidence in reaching its decision.

   Does the ground for cancellation exist?

8. 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 Regulations. In the present case, the ground in r.2.43(oa) is relevant:

   Grounds for cancellation of visa (Act, s 116)

   (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))

9. In the context of the relevant provisions in Penalties and Sentencing Act (Qld) 1992 (the Sentencing Act), it appears that being found guilty with no conviction recorded is not to be taken to have been convicted for the purposes of r.2.43(1)(oa) of the Regulations. On this basis, it is the Tribunal’s view that the ground in r.2.43(1)(oa) to cancel the applicant’s visa under s.116(1)(g) of the Act is not made out. The Tribunal’s reasons follow.

   The Queensland legislation

10. The definition of conviction in s.3 of the Sentencing Act ‘means a finding of guilt, or the acceptance of a plea of guilty, by a court.’

11. The applicant has provided evidence that confirms he pleaded guilty to the charge of unlawful stalking in Queensland and, on a finding of guilt, he was convicted and sentenced as follows:

    No conviction recorded

    Six months probation

    Restraining order, identifying the protected person by name (in force until 8 August 2023)

12. When imposing a penalty under the Sentencing Act, the Court has a discretion to do so with or without recording a conviction: s.12(1). Section 12(2) provides the Court with guidance as to the circumstances it should consider in exercising its discretion.  Further, s.12(3) states that:

    (3) Except as otherwise expressly provided by this or another Act—
    (a) a conviction without recording the conviction is taken not to be a conviction for any purpose; and
    (b) the conviction must not be entered in any records except—
    (i) in the records of the court before which the offender was convicted; and

    (ii) in the offender’s criminal history but only for the purposes of subsection (4)(b).

13. What is materially relevant here, in the Tribunal’s view, is that ‘a conviction is taken not to be a conviction for any purpose’.

14. Section 12(4) limits the circumstances where a conviction that wasn’t recorded ‘has the same result as if a conviction had been recorded’ to ‘appeals against sentence; and proceedings for variation or contravention of sentence; and proceedings against the offender for a subsequent office; and subsequent proceedings against the offender for the same offence.’  These circumstances are not applicable in this matter.

    Regulation 2.43(1)(oa) and legislative context

15. To ground the cancellation under s.116(1)(g), r.2.43(1)(oa) requires the Tribunal to find that the applicant has been convicted of an offence against a law of the Commonwealth, a State or Territory. The ground applies regardless of the penalty imposed (if any).

16. The Explanatory Statement (ES) for the Migration Amendment (2014 Measures No.2) Regulation 2014, which introduced r.2.43(1)(oa), 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’.  It 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.  

17. There is no indication in the Act and the Regulations that a finding of guilt where no conviction is recorded 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. In the Tribunal’s view, and relevant to the matter on review, it also does not appear from the context of the legislation that r.2.43(1)(oa) needs to be read as being enlivened when a person is found guilty and no conviction is recorded. There is a power available in s.116(1)(e) to cancel the visas of people who may be a risk to the health, safety or good order of individuals or the community but who need not have been convicted which may have been relevant for the delegate to have considered in this case. However, the visa was not cancelled under the general power of s.116(1)(e), it was cancelled under s.116(1)(g).

    Common law

19. The delegate, in the primary decision, considered a dictionary definition of ‘conviction’ and referenced the judgment of Maxwell v R (1996) 184 CLR 501 in a footnote to find the applicant had been convicted of an offence for the purposes of r.2.43(1)(oa).  

20. In Maxwell, Dawson and McHugh JJ held at [17] 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, applied to the current factual scenario, since the applicant entered a plea of guilty which resulted in a probation period and a restraining order, that is, a determination, suggests the necessary elements for a conviction have occurred.

21. However, Maxwell related to the timing of a conviction for manslaughter for the purposes of determining whether the Court could reject a guilty plea after new evidence came to light, rather than the issue of where a Court has made a finding of guilt without recording a conviction.  Considering the current facts in context, as required by Maxwell, regard should be had to the definition of ‘conviction’ in the Queensland legislation.  

22. As s.12(3) of the Sentencing Act expressly states that a finding of guilt without the recording of a conviction should not be taken to be a conviction for any purpose, the elements of a conviction as found by Dawson and McHugh JJ in Maxwell do not appear to be sufficient in this context.

    Policy

23. The Department’s Procedural Guidelines or PAM 3 should not be relied on as a guide to interpretation, but they do give an indication about how the Department construes the term. The Department’s policy on general visa cancellation powers (s109, s116, s128, 134B and s140) gives two examples of circumstances of when r.2.43(1)(oa) may apply and notably, in both the circumstances, the applicant had been sentenced to a custodial sentence and a good behaviour bond, respectively.

24. It does not appear from the context of the Queensland legislation considered above that r.2.43(1)(oa) is enlivened when a person is found guilty and no conviction is recorded.

25. For the reasons given, 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

26. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

    Jennifer Cripps Watts
    Member