1926341 (Migration)

The applicant, who held a Student (Temporary) (Class TU) visa, subclass 573 Higher Education Sector, sought review of the decision to cancel his visa. The cancellation was based on the applicant's conviction for multiple driving offences. The applicant presented evidence of his academic achievements, participation in rehabilitation programs, employment, and significant personal changes since the offending, including addressing mental health issues and alcohol dependency. He also provided testimonials from friends, family, and his employer, highlighting his remorse, determination to resume his studies, and community support.

The primary legal issue before the Tribunal was whether to exercise its discretion to set aside the cancellation of the applicant's visa, given that the ground for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) had been established. The Tribunal was required to consider various factors, including the purpose of the applicant's stay, his compliance with visa conditions, and the hardship that would be caused by his return to his home country without completing his education.

The Tribunal found that while the ground for cancellation was met, the exercise of discretion favoured the applicant. It acknowledged his efforts to continue his studies informally and his prospects of re-enrolment. The Tribunal also noted his compliance with other visa conditions and accepted that significant hardship, both financial and emotional, would be caused to the applicant and his family if he were unable to complete his degree. The Tribunal was satisfied that the applicant had demonstrated significant personal change, remorse, and a commitment to addressing the underlying issues that contributed to his offending behaviour, including mental health and alcohol-related problems.

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