1911736 (Migration)

This matter concerned an application by a Student (Temporary) (Class TU) visa holder, subclass 500, to review the cancellation of her visa. The ground for cancellation was that the applicant had been convicted of an offence, specifically dishonestly obtaining a financial advantage by deception. The applicant sought to have the decision to cancel her visa set aside.

The primary legal issue before the Tribunal was whether the discretion to cancel the applicant's visa should be exercised, given that the ground for cancellation had been established. This required the Tribunal to consider all relevant circumstances, including government policy and the specific facts of the applicant's case.

The Tribunal found that the ground for cancellation under s.116(1)(g) of the Migration Act 1958 (Cth) was made out, as the applicant had been convicted of a criminal offence. However, this ground did not mandate cancellation under s.116(3). In considering the exercise of discretion, the Tribunal had regard to the applicant's purpose for being in Australia, which was to study, and noted her active pursuit of educational goals. The Tribunal also found that the applicant had complied with her other visa conditions. Significant weight was given to the hardship the applicant would suffer if her visa remained cancelled, including the inability to complete her studies, potential career limitations in Vietnam, and the financial loss incurred. Furthermore, the Tribunal acknowledged the applicant's expressed remorse and emotional distress regarding her past behaviour, and the potential for redemption and positive contribution to Australian society. The circumstances surrounding the offence, including the applicant's naivety and the fact that she was persuaded to participate, were also considered.

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