Galang (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the applicant's Subclass 489 – Skilled – Regional (Provisional) visa. The dispute arose from criminal convictions, although no conviction was formally recorded due to a good behaviour bond. The applicant contended that the cancellation was unwarranted, highlighting her remorse, the minor nature of the offence, and her positive contributions to Australia.

The primary legal issue before the Tribunal was whether the cancellation of the applicant's visa was appropriate, particularly considering the circumstances of her criminal conviction and the discretionary powers available to the Tribunal. This involved determining if the applicant should be taken to have been convicted for the purposes of relevant migration provisions and, if so, whether the discretion to set aside the cancellation should be exercised in her favour.

The Tribunal reasoned that even if the applicant were deemed to have been convicted, it would exercise its discretion to set aside the cancellation. In reaching this conclusion, the Tribunal considered several factors, including the purpose of the visa, which was to enable the applicant to work in a regional area in her nominated skilled occupation, a purpose the Tribunal found she was fulfilling. The Tribunal also noted the applicant's compliance with visa conditions, her settlement in Australia, and her employment. While acknowledging the potential hardship if she were forced to leave, the Tribunal also observed that the applicant had applied for a permanent visa, which would likely allow her to remain in Australia on a bridging visa, mitigating the practical impact of cancellation.

Ultimately, the Tribunal concluded that, considering all the circumstances, the visa should not be cancelled. The Tribunal set aside the original decision and substituted a decision not to cancel the applicant's Subclass 489 visa.