Ramirez Mendoza (Migration)

This matter concerned an appeal by a New Zealand citizen against the cancellation of their Subclass 461 New Zealand Citizen Family Relationship (Temporary) visa. The cancellation was based on the ground that the visa holder had been convicted of a criminal offence against the law of New South Wales, specifically "Assault with act of indecency," for which they received a community corrections order and a fine. The visa holder's ability to reapply for a further visa was jeopardised by this cancellation.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth), as prescribed by regulation 2.43(1)(oa) of the Migration Regulations 1994, was made out. This regulation permits cancellation if the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State, or Territory.

The Tribunal found that while the applicant had initially been convicted of the offence, this conviction and sentence were subsequently set aside. As the ground for cancellation relied on a conviction, and that conviction no longer stood, the Tribunal was not satisfied that the ground for cancellation existed. Consequently, the power to cancel the applicant's visa did not arise. The Tribunal therefore set aside the decision to cancel the visa and substituted a decision not to cancel it.