Nguyen (Migration)

The Administrative Appeals Tribunal considered the cancellation of a visa held by Mr. Nguyen. The dispute arose when the Minister decided to cancel Mr. Nguyen's visa under section 116(1)(g) of the Migration Act 1958 (Cth), which allows for cancellation if a prescribed ground applies. The specific ground relied upon was regulation 2.43(1)(oa) of the Migration Regulations 1994 (Cth), which pertains to the conviction of an offence against a law of the Commonwealth, a State, or Territory.

The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether the visa should be cancelled, having regard to all relevant circumstances. The applicant had been convicted of common assault in the Liverpool Local Court and sentenced to a community correction order. However, on appeal to the NSW District Court, a conditional release order was made under section 9(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which meant no conviction was recorded.

The Tribunal reasoned that while the applicant had been found guilty of an offence, the absence of a recorded conviction under the NSW legislation meant that the prescribed ground for cancellation under regulation 2.43(1)(oa) was not engaged. Furthermore, even if the ground had been engaged, the Tribunal considered the applicant's circumstances, including his long-term presence in Australia, his marriage to an Australian citizen, the birth of their child, his role as the primary financial provider for his family, and his prospective spouse visa application. The Tribunal gave significant weight to the compelling need for the applicant to remain in Australia to support his family.

Consequently, the Tribunal set aside the decision to cancel Mr. Nguyen's visa and substituted a decision not to cancel his Subclass 020 (Bridging B) visa.