Walia (Migration)

This matter concerned an appeal by Mr Walia against a decision of the Migration Review Tribunal to affirm the cancellation of his Student (Temporary) (Class TU) visa, Subclass 573. The cancellation was based on Mr Walia having been convicted of an offence.

The primary legal issue before the Federal Circuit Court was whether the Migration Review Tribunal had erred in law by failing to consider, or adequately consider, the fact that the charges against Mr Walia had been struck out on appeal. The court was required to determine if this subsequent development altered the legal basis for the visa cancellation and the Tribunal's subsequent decision.

The court found that the Tribunal had erred in law by failing to consider the impact of the charges being struck out. The Tribunal's decision was based on the premise of a conviction, and once that conviction was nullified by the striking out of the charges, the factual foundation for the cancellation was removed. The court reasoned that the Tribunal had no other relevant grounds upon which to affirm the cancellation, and therefore, its decision was vitiated by an error of law.

The court set aside the decision of the Migration Review Tribunal and remitted the matter to the Tribunal to be heard and determined according to law.