1829160 (Migration)

The Administrative Appeals Tribunal considered a decision to cancel a visa held by an applicant. The dispute arose from the applicant's conviction for an offence under state law, which the Minister relied upon as a ground for visa cancellation under section 116(1)(g) of the Migration Act 1958 (Cth). The Tribunal was tasked with determining whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The primary legal issue was whether the applicant's conviction for "Assault occasioning actual bodily harm (Domestic Violence)" satisfied the prescribed ground for cancellation under regulation 2.43(1)(oa) of the Migration Regulations 1994. This regulation permits cancellation if a visa holder has been convicted of an offence against a law of the Commonwealth, a State, or a Territory. The Tribunal also had to consider whether to exercise its discretion to cancel the visa, having regard to various factors outlined in government policy guidelines, even though the Act and Regulations did not specify mandatory considerations for this discretion.

The Tribunal found that the applicant's conviction for assault occasioning actual bodily harm did indeed fall within the prescribed ground for cancellation under regulation 2.43(1)(oa), as it constituted an offence against a State law. However, the Tribunal determined that the cancellation was not mandatory under section 116(3) of the Act. In exercising its discretion, the Tribunal considered the circumstances of the offence, which involved an altercation where the applicant allegedly attacked his partner and child, and noted the applicant's intoxication at the time. Despite the seriousness of the offence, the Tribunal ultimately concluded that the visa should not be cancelled.

The Tribunal set aside the decision to cancel the applicant's Subclass 500 (Student) visa and substituted a decision not to cancel it.