2204478 (Migration)

The applicant, a holder of a Temporary Business Entry (Class UC) visa, Subclass 457, sought review of the Minister's decision to cancel their visa. The cancellation was based on criminal convictions, specifically an intensive correction order, supervision, and a fine. However, on appeal, one conviction was quashed, and for another charge, a guilty finding was made but without proceeding to conviction.

The primary legal issue before the Tribunal was whether the grounds for visa cancellation, as prescribed by section 116(1)(g) of the Migration Act 1958 (Cth) and regulation 2.43(1)(oa) of the Migration Regulations 1994 (Cth), were still made out following the outcomes of the applicant's criminal appeals. Regulation 2.43(1)(oa) requires the Minister to be satisfied that the visa holder "has been convicted" of an offence.

The Tribunal reasoned that the quashing of a conviction means the person is legally taken to have never been convicted of that offence. Furthermore, a finding of guilt without proceeding to conviction, as occurred with the drug possession charge, does not constitute a "conviction" for the purposes of the regulation. Consequently, the Tribunal concluded that the prescribed ground for cancellation under regulation 2.43(1)(oa) was not established, as there was no longer a relevant conviction to support the cancellation decision.

Accordingly, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it.