Kim (Migration)

The Administrative Appeals Tribunal reviewed a decision by the Minister to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The cancellation was based on the applicant's conviction for wilful damage, for which no conviction was recorded. The applicant argued that this outcome did not align with the legislative intent of the cancellation ground.

The Tribunal was required to determine whether the ground for cancellation under s.116(1)(g) of the Migration Act 1958 (Cth) and r.2.43(1)(oa) of the Migration Regulations 1994 (Cth) was enlivened by the applicant's conviction, and if so, whether the discretion to cancel the visa should be exercised. The specific legal issue was whether a conviction for which no conviction was recorded satisfied the requirement of being "convicted of an offence".

The Tribunal found that while a conviction for wilful damage had occurred, the absence of a recorded conviction meant that the ground under r.2.43(1)(oa) was technically enlivened. However, the Tribunal then considered the exercise of discretion. Crucially, the Tribunal noted that the Notice of Intention to Consider Cancellation (NOICC) had not particularised other serious charges the applicant was facing, such as those related to domestic violence. The Tribunal held that it could only review the decision based on the grounds specified in the NOICC and could not introduce new grounds. Given the minor nature of the offence for which cancellation was sought, the prompt payment of restitution, and the fact that the Department had not particularised more serious alleged offending in the NOICC, the Tribunal exercised its discretion not to cancel the visa. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's visa.