Baby (Migration)

The Administrative Appeals Tribunal reviewed a decision by the delegate of the Minister for Home Affairs to cancel the applicant's Bridging A (Class WA) visa. The cancellation was based on section 116(1)(g) of the *Migration Act 1958* and regulation 2.43(oa), which permit cancellation if the visa holder has been convicted of an offence against a law of a state or territory. The applicant had pleaded guilty to charges in the Ipswich Magistrates Court, which resulted in a fine and an order that no conviction be recorded.

The primary legal issue before the Tribunal was whether the applicant had been "convicted" of an offence for the purposes of section 116(1)(g) of the *Migration Act*, given that the Queensland court had ordered that no conviction be recorded. The Tribunal also considered whether, if the ground for cancellation was made out, the visa should be cancelled in all the circumstances.

The Tribunal reasoned that the Queensland *Sentencing Act* provided that an order not to record a conviction means that it is "taken not to be a conviction for any purpose". Therefore, the applicant had not been convicted of an offence in a manner that would trigger the cancellation ground under section 116(1)(g) of the *Migration Act*. The Tribunal concluded that the delegate's decision to cancel the visa was not supported by the prescribed ground.

Consequently, the Tribunal set aside the delegate's decision to cancel the applicant's Bridging A visa.