OTAKE (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 500 (Student) visa of an applicant. The cancellation was based on the applicant's conviction for an offence.

The primary legal issue before the Tribunal was whether the applicant had been "convicted of an offence" for the purposes of regulation 2.43(1)(oa) of the Migration Regulations 1994 (Cth), which is a ground for visa cancellation under section 116(1)(g) of the Migration Act 1958 (Cth). This question turned on the effect of a Queensland court's decision to record a finding of guilt without recording a formal conviction.

The Tribunal reasoned that section 12(3) of the Penalties and Sentences Act 1992 (Qld) provides that a conviction without recording the conviction is not to be taken as a conviction for any purpose, unless other legislation specifies otherwise. The Tribunal confirmed that neither Queensland nor Commonwealth legislation contained any provision to the contrary. Therefore, the Tribunal concluded that the applicant had not been convicted for the purposes of regulation 2.43(1)(oa).

Consequently, the Tribunal was not satisfied that the ground for cancellation existed, and the power to cancel the visa did not arise. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's visa.