1916098 (Migration)

This matter concerned the review of a decision to cancel the Subclass 500 (Student) visa of the applicant, a citizen of Bangladesh. The applicant's visa was cancelled under section 116(1)(g) of the Migration Act 1958 (Cth) due to his conviction for common assault. As a consequence, his wife's visa was also cancelled. The applicant sought review of the cancellation decision before the Tribunal.

The primary legal issue before the Tribunal was whether, having established that a ground for cancellation existed, the discretion to cancel the applicant's visa should be exercised. The Tribunal was required to consider all relevant circumstances, including departmental guidelines, to determine if the cancellation decision should be set aside. A secondary issue was the Tribunal's jurisdiction concerning the applicant's wife.

The Tribunal found that the ground for cancellation, namely the applicant's conviction for an offence against a law of a State, was established. However, the Tribunal then considered whether to exercise its discretion to set aside the cancellation. It noted that this was the applicant's first and only offence. The Tribunal had regard to the applicant's remorse, his engagement in counselling and marriage counselling with his wife, and the fact that an Apprehended Violence Order, initially put in place, had its conditions varied to allow the couple to reside together. Crucially, the Tribunal considered that the cancellation of the visa had prevented the applicant from completing his Master's degrees, a goal he was on track to achieve.

The Tribunal concluded that, on balance, the circumstances warranted setting aside the decision to cancel the applicant's visa. The Tribunal therefore substituted a decision not to cancel the visa. The Tribunal noted it had no jurisdiction regarding the second applicant, the applicant's wife.