Australian Immigration Daily News

Imagine that you have arrived at your office one fine autumn morning, and are happily drinking your coffee and reading the case law updates on the Migration Alliance blog when your phone rings and you get an urgent request for help, as follows:

“My partner visa has been cancelled by the Department!! Is there anything you can do to help me?”

And imagine further, that when you ask the potential client why the Department has cancelled his visa, he tells you the following:

“The Department says that I didn't truthfully answer questions on the Form 47SP and on Form 80 concerning whether I had ever been convicted of a crime!”

So you decide to ask for some further details: you ask the client: “Well, what exactly does the Department say you should have disclosed?”

Then the client answers: “Well, they say that they have gotten information from the Department of Internal Affairs in Russia that I pleaded guilty to a series of criminal offences including racketeering, attempt to murder two or more persons, complicity in the murder of two or more persons committed with a mercenary motive and kidnapping, grand larceny and robbery committed by a group of people. The Department says that the information they received also states that I was sentenced to prison for 11 years and 6 months.”

At that point, would you start choking on your cappuccino, or spill it all over your desk, conclude that the client's case is basically “hopeless” and “dead on arrival”, and then go back to reading the case law updates?

But what if the client were then to tell you: “Hey, before you hang up, can I also tell you that my convictions were “expunged” in Russia, and I have documentation from the Russian courts to prove it.”

Would you still think that the client didn't have a proverbial leg to stand on? Or might you think that possibly, just possibly, there might be something you could do to try to salvage the client's situation?

Ok – leaving the artistic license of this scenario aside, the basic fact pattern outlined above did actually unfold in a case that was decided by the Federal Circuit Court last week – Anashkin v Minister of Immigration & Anor (2016) FCCA 310 (16 March 2016).

And the case does raise a fundamental question: What types of convictions do have to be disclosed on a visa application? Suppose it really is possible to produce evidence from a foreign judicial system that a conviction has been expunged – does that conviction have to be disclosed?

The story in the Anashkin case was that the visa holder really was able to produce to the AAT a letter from a court in Russia that said that the convictions had been expunged. The letter from the Court also stated that under Russian law, “cancellation or an expunging of a record of conviction annuls all legal consequences related to such conviction.”

Further, in Anashkin, the visa holder was able to produce a letter from the Ministry of Internal Affairs in Russia that stated that it had “no record of any prosecution”. He was also able to produce a letter from a Russian lawyer which explained that the effect of “expunging” a conviction in the Russian legal system was that the person had no criminal record. Further, the client had a letter from another Russian lawyer who had worked as a “People's Judge” that proclaimed that the client's arrest, trial and conviction had all been “unfair” and that there had been a “full annulment” of the convictions.

This is all starting to sound like a Russian novel, isn't it! More like Dostoevsky than Australian migration law!!

So what happened here? Was the client “home free”? Was his claim that he did not have to disclose the convictions because they had been “expunged” correct? Was he able to avoid the cancellation of his partner visa?

No. The visa holder was not successful before the Federal Circuit Court!

Why not? Because the Federal Circuit Court “drilled down” to try to ascertain what the term “expunged” really meant in the Russian legal system. The Court reasoned that it would be one thing if the term “expunged” meant that the conviction had been set aside “ab initio”, or “as if it had never happened”, and another thing entirely if the term “expunged” only meant that what had been removed was not the underlying fact of the conviction, but merely the record of the conviction.

Ultimately the Federal Circuit Court held that the documents from Russia had been “unclear”, and that it was not certain that what had happened in the Russian judicial system was whether the conviction had been completely set aside (as wrongfully made), or whether what had happened was only that the record of the conviction had been removed. In the view of the Circuit Court, it was open to the Tribunal to conclude that what the materials from Russia really meant was only that the record of the conviction had been removed, and not that the conviction had been wrongfully made and “wiped from the record” as if it had never occurred in the first instance.

Consequently, the Federal Circuit Court held that the visa holder had been obligated to disclose the fact of the convictions on his application. The Tribunal had not committed jurisdictional error by affirming the cancellation of the visa.

What is the moral of this story? It can be very difficult to “decipher” the exact legal consequences of a decision in a foreign jurisdiction. Where there is uncertainty as to whether a “conviction” has been “quashed” in the sense that would be understood under Australian law (overturned so that the legal outcome is that the conviction is treated as if it never occurred) the safer course is simply to disclose the conviction on the application form.

Concordia Pacific, This email address is being protected from spambots. You need JavaScript enabled to view it.