Aguad Martinez (Migration)

This matter concerned an application by Ms. Aguad Martinez for review of a decision by the Department of Home Affairs to cancel her Subclass 500 (Student) visa. The cancellation was based on the ground that the applicant posed a risk to the health or safety of an individual, stemming from her conviction for offences. The applicant had pleaded guilty to these offences, although she contended that she did so on legal advice and did not agree with the charges.

The primary legal issue before the Tribunal was whether the cancellation of the applicant's visa was justified. This involved determining whether the ground for cancellation, specifically a risk to health or safety due to criminal convictions, was established. The Tribunal was also required to consider whether, even if the ground for cancellation was established, the visa should be cancelled, involving an exercise of discretion by the Tribunal.

The Tribunal reasoned that it was bound by the criminal court's finding of guilt and could not re-examine the factual basis of the conviction. Applying the principle established in *Minister for Immigration and Multicultural Affairs v SRT* (1999) 91 FCR 234, the Tribunal held that a conviction and sentence are matters for the criminal law and are conclusive for administrative tribunals. Therefore, the ground for cancellation under s.116(1)(g) of the *Migration Act 1958* (Cth) was satisfied. In exercising its discretion regarding cancellation, the Tribunal considered the applicant's purpose for study in Australia, her compliance with visa conditions, and the hardship that cancellation might cause. While acknowledging the applicant's desire to complete her studies and the potential hardship, the Tribunal concluded that she did not have a compelling need to remain in Australia and that COVID-19 travel restrictions did not constitute unique or compelling circumstances.

Consequently, the Tribunal affirmed the Department's decision to cancel the applicant's Subclass 500 (Student) visa.