1909783 (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 573 Higher Education Sector visa of the applicant. The cancellation was based on the applicant's criminal conviction for distributing intimate images without consent, an offence occurring in August 2018 and leading to a conviction in March 2019. The applicant conceded the conviction, satisfying the ground for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) and regulation 2.43(1)(oa) of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether to exercise its discretion to cancel the applicant's visa, given that the ground for cancellation did not mandate its cancellation. In considering this discretion, the Tribunal was required to have regard to all relevant circumstances, including those raised by the applicant and government policy guidelines. These considerations encompassed the purpose of the visa, compelling reasons to remain in Australia, compliance with visa conditions, potential hardship, extenuating circumstances for the offence, the applicant's behaviour, and any mandatory legal consequences of cancellation.

The Tribunal found that while the ground for cancellation was established, the exercise of discretion favoured not cancelling the visa. The applicant had attempted to remedy the situation, and the victim did not support the cancellation. The offending behaviour was considered out of character, occurring while intoxicated. The Tribunal also noted the applicant's remorse, his status as a genuine student, and the significant hardship, including psychological distress and financial loss, that cancellation would cause. Furthermore, the applicant had a long connection with Australia.

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