Wu (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the visa of an applicant holding a Subclass 485 (Temporary Graduate) visa. The cancellation was based on the ground that the applicant had been convicted of an offence against a law of a State, as provided by section 116(1)(g) of the Migration Act 1958 (Cth) and regulation 2.43(1)(oa) of the Migration Regulations 1994 (Cth).

The primary legal issue before the Tribunal was whether the applicant had been "convicted" of an offence for the purposes of the Migration Regulations, given that a Queensland court had found the applicant guilty of unlawful stalking but had not recorded a conviction. The Tribunal was required to interpret the meaning of "convicted" in the context of both the Migration Act and the Penalties and Sentencing Act 1992 (Qld).

The Tribunal reasoned that while the Penalties and Sentencing Act defines a conviction as a finding of guilt, section 12(3) of that Act provides that a conviction without recording the conviction is taken not to be a conviction for any purpose, except in limited circumstances not relevant here. Applying this provision, the Tribunal concluded that the applicant's finding of guilt in Queensland, without a recorded conviction, did not constitute a "conviction" for the purposes of regulation 2.43(1)(oa). Consequently, the ground for cancellation under section 116(1)(g) of the Migration Act was not made out.

The Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel the visa.