1903646 (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the Subclass 574 Postgraduate Research Sector visa of an applicant. The dispute arose from the applicant's conviction for an offence against a law of New South Wales, specifically assault with an act of indecency, which constituted a ground for visa cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) and regulation 2.43(1)(oa) of the Migration Regulations 1994. Although the applicant's conviction was later set aside by the District Court, with the applicant being found guilty without proceeding to conviction, the Tribunal was required to determine whether the initial conviction satisfied the cancellation ground.

The primary legal issue before the Tribunal was whether the applicant had been "convicted" for the purposes of visa cancellation, notwithstanding the subsequent setting aside of that conviction by a higher court. The Tribunal also had to consider whether to exercise its discretion to cancel the visa, given that the ground for cancellation did not mandate it. In exercising this discretion, the Tribunal was required to weigh various factors, including government policy, the applicant's circumstances, and the potential hardship that cancellation might cause.

The Tribunal reasoned that the power of a court to set aside a conviction and impose a new sentence operates prospectively, meaning that the original conviction, though later overturned, had legal effect up to the point of the appeal. Therefore, the Tribunal was satisfied that the ground for cancellation under section 116(1)(g) had been made out. In considering its discretion, the Tribunal had regard to the applicant's submission, government policy, and the specific circumstances of the case, including the nature of the offence, the applicant's lack of remorse, the degree of hardship, and the fact that the applicant's family resided in Australia.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's visa, concluding that the circumstances warranted the exercise of its discretion to cancel.