Heidarikakolaki (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to cancel the applicant's Subclass 010 (Bridging A) visa under section 116 of the Migration Act 1958 (Cth). The applicant, Mr Amin Heidarikakolaki, a national of Iran, had been granted the Bridging A visa in conjunction with his application for a further Student visa. The cancellation decision was made following a criminal conviction for sexual assault, for which the applicant was initially ordered to complete a community corrections order.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(g) of the Act, as prescribed by regulation 2.43(1)(oa), was made out. This regulation permits cancellation if the holder of a temporary visa has been convicted of an offence against a law of the Commonwealth, a State or Territory. The Tribunal was required to determine if the applicant's conviction for sexual assault satisfied this criterion, and if so, whether the visa should be cancelled.

The Tribunal reasoned that while the applicant had initially been convicted and sentenced in the Magistrates' Court, his subsequent appeal to the County Court of Victoria resulted in the original orders being set aside. The County Court found the applicant guilty of sexual assault but without recording a conviction, imposing a modified community corrections order. Crucially, regulation 2.43(1)(oa) requires a conviction for the ground to be engaged. As the applicant was found guilty without conviction, the Tribunal concluded that the prescribed ground for cancellation under section 116(1)(g) was not established. Furthermore, the Tribunal noted that the decision to cancel the visa was made without affording the applicant an opportunity to be heard, which was a necessary step.

Consequently, the Tribunal set aside the delegate's decision to cancel the applicant's Bridging A visa. The Tribunal determined that it was not necessary to invite the applicant to appear and decided the review in his favour based on the material before it.