Merchant (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)), held by the applicant, Mr Merchant. The cancellation was based on the ground that the applicant had been convicted of an offence against a law of a State, as prescribed by regulation 2.43(1)(oa) of the Migration Regulations 1994, which is a ground for cancellation under section 116(1)(g) of the Migration Act 1958.

The Tribunal was required to determine whether the ground for cancellation existed, specifically whether the applicant had been "convicted" of an offence for the purposes of the Migration Act and Regulations. The applicant had pleaded guilty to several offences in Victoria, including unlawful assault and obtaining property by deception, and penalties were imposed, but no conviction was formally recorded. The Tribunal also considered whether, even if a conviction was found to exist, it would exercise its discretion to set aside the cancellation.

The Tribunal found that the delegate had erred in characterising the applicant's finding of guilt without a recorded conviction as a "conviction" for the purposes of section 116(1)(g). The Tribunal referred to section 8 of the Sentencing Act 1991 (Vic), which provides that a finding of guilt without the recording of a conviction must not be taken to be a conviction for any purpose, unless otherwise provided by law. The Tribunal concluded that the necessary criteria to trigger cancellation under section 116(1)(g) did not exist.

However, the Tribunal also considered the exercise of discretion. It found that the applicant made a substantial contribution to his sponsoring employer's business, managing a significant client base and possessing valuable skills and experience. The employer provided evidence of the detrimental impact the applicant's departure would have on the business and expressed a desire to sponsor him for permanent residency. Considering these factors, the Tribunal concluded that the visa should not be cancelled. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's visa.