2013704 (Migration)

[2021] AATA 4131

2013704 (Migration) [2021] AATA 4131 (22 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2013704

MEMBER:Antoinette Younes

DATE:22 July 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 22 July 2021 at 1:59 pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – convicted of an offence – recklessly deal with proceeds of crime – consideration of discretion – no compelling need to remain in Australia – Australia’s international obligations – pending protection visa application – seriousness of the offending conduct – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), r 2.43

CASES
Gong v Minister for Immigration and Border Protection [2016] FCCA 561
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 3 September 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(g) on the basis that the applicant has been convicted of an offence in NSW. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 13 July 2021 to give evidence and present arguments. The Tribunal also received oral evidence from two witnesses.

4. The Tribunal exercised its discretion to hold the hearing by video through MS Teams’ facilities. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted in that manner.

5. The applicant was represented in relation to the review by his registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(g). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

   Section 116(1)(g) - prescribed ground

8. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r 2.43(1)(oa) is relevant.

9. Section 116 provides:

   (1)  Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

   (g) a prescribed ground for cancelling a visa applies to the holder.

10. The prescribed grounds for cancellation under s. 116(1)(g) are found in r 2.43(1)(oa) of the Regulations which provides:

(1)For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:

(oa) in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa - that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any));

1. During the hearing, the Tribunal discussed with the applicant information contained in the delegate’s decision record, a copy of which the applicant provided to the Tribunal. 

2. The delegate’s decision record indicates that on 4 March 2020, the applicant was convicted at the [Local] Court of the offence of RECKLESSLY DEAL WITH PROCEEDS OF CRIME >$5,000 – T1, and that he received the following sentence:

   • Imprisonment for 9 months commencing 4 March 2020 and concluding 3 December 2020.
   • Non-parole period of 4 months commencing 18 May 2020 concluding 17 September 2020.
   • Compensation of $100082.

3. The Tribunal discussed with the applicant relevant information before the Tribunal, which includes a NSW Police Facts Sheet indicating that:

   ·[In] January 2019, an unknown person took over the email account of Mr X and sent an email to Mr Y, the owner of an on-demand delivery service. The unknown person requested a loan be paid to another nominated account.  The email included the previous email correspondence history about the loan. The bank account is registered in the applicant’s name.  [In] January 2019, Mr Y transferred $[amount]. 

   ·[In] January 2019, the money was received in the applicant’s bank account. Multiple transactions occurred from 24 January 2019 to 30 January 2019, including withdrawals, purchases of US dollars as well as an Apple Macbook Pro and headphones.

   ·On 30 January 2019 the applicant’s bank account was closed. The applicant was subsequently charged.

4. In accordance with s.359AA, the Tribunal indicated that it considered the circumstances of the offending and the conviction to be serious.  In response, the applicant expressed remorse and apologised.   He said he understands the charges and that he has reflected on his actions.

   NOTICE OF INTENTION TO CONSIDER CANCELLATION (NOITCC)

5. On 3 August 2020, the Department sent to the applicant a NOITCC to which he responded on 27 August 2020 by essentially noting that he takes responsibility for his actions but that he was used; he was naïve and he trusted criminal syndicates which contributed to his offending as he was desperate for money to support his family in Nigeria.

6. The applicant provided documents in support of his submissions, including, academic records, a [Discipline 1] certificate, issued by [University 1], awarded to the applicant [in] November 2012, a [Qualification 2] issued by [University 2], awarded to the applicant [in] April 2019, a letter of support from [Reverend A] dated 5 February 2020 (updated subsequently), a reference letter from [Mr B], a letter of apology addressed to the Court by the applicant dated 18 February 2020, Sentencing Assessment Report dated 4 March 2020 concluding that the applicant is at a low risk of reoffending, a letter dated [in] April 2020 from [a named] Medical Centre referring to the applicant suffering from an infection, allergy, asthma, and “Adjustment Disorder with Depressed Mood”.  The applicant also provided a psychological report dated 27 April 2020, among other things, referring to the applicant having anxiety and that his reported experiences have not caused impairment in important areas of functioning, are directly attributable to the criminal matter and do not meet criteria for any mental health diagnosis or condition.

7. The applicant is not disputing that he has been convicted of the offence of RECKLESSLY DEAL WITH PROCEEDS OF CRIME >$5,000 – T1. Given the conviction, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

   Consideration of discretion

8. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

   ·The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

9. The applicant came to Australia to undertake studies.  The Tribunal accepts the evidence that the applicant has completed a master’s degree in [Discipline 1] and a Diploma of [Discipline 2].  The Tribunal accepts that the applicant has partly completed an Advanced Diploma of [Discipline 2] and a Certificate IV in [Discipline 3], and that he currently has an offer from [an education provider] to undertake a [Qualification 3] course. 

10. The applicant has claimed that he has a genuine desire to continue his studies in Australia and that he wants to enrol in a PHD in [Discipline 1] in Australia.  The applicant plans to participate in a professional year or job preparedness training in his field of [Discipline 1] to enhance his financial and career opportunities.  The Tribunal asked the applicant about the relevance of the [Discipline 2] and the [Qualification 3] courses.  He said they would enhance his skills.  The Tribunal asked the applicant about his plans to enrol in a PHD course.  He explained that he has contacted universities such as [University 2] to explore the PHD option.

11. The Tribunal accepts that the applicant came to Australia to study and he has completed a master’s degree and a Diploma, consistent with the purpose of his travel to Australia.  The question is whether the applicant has a compelling need to remain in Australia.

12. In response to the NOITCC, the applicant noted that he had lodged a protection visa application on 19 May 2020 and that had the scheduled interview occurred while he was remanded in custody, unfair prejudice would have occurred.  He noted that the lack of procedural fairness in respect of the protection visa application cannot be justified given the seriousness of him being quarantined for 14 days due to COVID-19 requirements when moving between correctional facilities.  He claimed that the lack of procedural fairness had warranted him to the protection visa application. He claimed that he cannot return to Nigeria as he wishes to seek protection as a result of threats of harm from people in Nigeria.   He further noted that due to COVID-19, he cannot return to Nigeria, which would result in him being placed into indefinite and prolonged detention. He indicated that despite the application for a protection visa, he would prefer to be given the opportunity to study.

13. As discussed in the course of the hearing, the delegate’s decision record indicates that in relation to the protection visa application lodged on 19 May 2020, the Department made a request on 3 June 2020 to the applicant for an interview and that a case officer contacted the representative on 10 June 2020 to discuss the option of re-scheduling the interview due to scheduling issues, to which the representative indicated that the application would be withdrawn to give the applicant time to prepare for the next interview and that he would lodge again. The protection visa application was withdrawn on 10 June 2020 and the applicant confirmed that he has subsequently lodged another application for a protection visa, the processing of which is pending.

14. In oral submissions to the Tribunal, the representative contended that in relation to the first application for a protection visa, he attempted to communicate with the Department on various occasions during COVID-19 restrictions, but he had no response.  The representative noted that the applicant was in prison at the time and would have had to isolate so there would not have been opportunities for the applicant to speak with the representative.

15. The Tribunal has considered the issue of the withdrawal of the application for a protection visa and based on the available material, the Tribunal cannot resolve the inconsistent versions of events.  The Tribunal has decided that it is fair and appropriate not to draw any adverse conclusions on this basis, including but not limited to, that the withdrawal casts doubts on the applicant’s claims.  The Tribunal accepts as plausible that the applicant’s explanation is reasonable, particularly in the context of his imprisonment and COVID-19 restrictions.

16. As explained to the applicant, the Tribunal is not determining the application for a protection visa as that is the subject of a separate process.  However, as mentioned, the Tribunal is entitled to assume that the application for a protection visa would be assessed in accordance with established legal and policy principles.

17. The Tribunal accepts that the applicant has plans to undertake further studies in Australia, however, this needs to be considered in the context of the fact that had it not been cancelled, the student visa would have expired on 10 September 2020 which means that the applicant would have had to apply for another student visa in order to undertake further studies.  He would have had to meet all the relevant criteria in order to be granted the visa.  The student visa held by the applicant is a temporary visa, with a specific expiry date.  The applicant has completed courses within the period of the visa.  The students’ visa program is not intended for permanent stay in Australia and a visa holder who intends to undertake further studies would, when appropriate apply for another visa.

18. The representative made oral submissions that the delegate’s cancelling the applicant’s visa 7 days prior to its expiry was “punitive” and intended to “block” the applicant from lodging a substantive visa.  The representative’s contentions are suggestive of bad faith.  The Tribunal considers allegations of bad faith on the part of a decision-maker to be serious and go to the core of personal integrity, ethical standards, and lawful decision-making.  The evidence before the Tribunal indicates that the NOITCC was sent on 3 August 2020, and that on 20 August 2020, an extension of 5 working days to provide a response was granted.  The response was received on 28 August 2020.  This sequence does not support those contentions.  On the evidence, the Tribunal is not satisfied that the cancellation of the visa was punitive and/or intended to block the applicant. The applicant’s visa was cancelled because he had been convicted of a serious offence, which was open to the delegate and consistent with s 116(1)(g).

19. The Tribunal has given some weight in favour of the applicant in that his travel to Australia is consistent with his purpose to study and that he intends to undertake further studies.  The Tribunal does not consider the intention to undertake further studies to be a compelling reason to remain in Australia, particularly in the context discussed above in relation to the student visa being temporary.  However, the Tribunal gives weight in the applicant’s favour concerning the pending protection visa application.

    ·The extent of compliance with visa conditions

20. There is no evidence of the applicant not complying with visa conditions.

21. The Tribunal considers compliance with visa conditions, like compliance with the law, to be a legitimate expectation.

22. In those circumstances, the Tribunal gives this aspect neutral weight.

    ·Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

23. The applicant claimed that he financially supports his family back in Nigeria. The Tribunal notes that the applicant reported to [Ms C] who provided the Psychologist Report that he was earning AU$1800 to AU$2000 a week as an [Occupation 1].  The Tribunal accepts that in the case of cancellation the applicant and his family would suffer a degree of financial hardship. The Tribunal accepts that not being able to study any further courses in Australia would cause the applicant a degree of hardship.

24. The applicant has claimed and provided evidence that he has physical and mental health issues.  A letter dated [in] April 2020 from [a named] Medical Centre referring to the applicant suffering from an infection, allergy, asthma, and “Adjustment Disorder with Depressed Mood”.  [Ms C], the psychologist noted that the applicant had experienced, among other things, disturbed sleep, nightmares, worry, and intermittent passive suicidal ideation, but that “these experiences have not caused impairment in social, occupations and other important areas of functioning”.  [Ms C] indicated that the reported experiences are directly attributable to the criminal matter and do not meet criteria for any mental health diagnosis or condition.  In submissions to the Tribunal, it was noted that the applicant’s mental health, including depression, has deteriorated and that antidepressants have been recommended.

25. The applicant gave evidence that his mental health has deteriorated with him re-experiencing suicidal ideation.  He stated that he has recently contacted Beyond Blue and saw a psychologist.  The Tribunal reminded the applicant that he has not provided recent evidence concerning his mental health. The Tribunal appreciates that the applicant’s incarceration and cancellation of his visa are significant stressors which would have impacted on his mental and emotional wellbeing.  The Tribunal further accepts that the visa cancellation would have an adverse impact on the applicant’s mental and emotional health. 

26. The Tribunal accepts that the applicant has physical and mental health issues which could worsen in case of the visa cancellation.  Although no issue of the applicant’s capacity has been raised with the Tribunal, the Tribunal has considered his mental and physical health in the context of the hearing.  The Tribunal is satisfied that the applicant’s mental and physical status did not impact on his ability to participate in the hearing or put his case fully before the Tribunal. 

27. The Tribunal is mindful that the review is finalised during the COVID-19 pandemic which might present challenges in terms of the applicant being able to depart Australia given travel restrictions, in case he would be required to leave.  However, the Tribunal does not consider this to be a cause of hardship weighing in the applicant’s favour.

28. The applicant has claimed and has provided evidence from [Reverend A], that he is a devout Christian (Catholic), who has been working hard to make ends meet.  [Reverend A] also noted that the applicant is a trustworthy and responsible young man, who has learnt his lesson.  [Reverend A] gave evidence in support of the applicant, speaking highly of the applicant who has been helpful within the Church community and being a resource person.  The Tribunal accepts that cancellation of the visa could cause some emotional hardship to the applicant from not being able to contribute to the Church community and its members.

29. In submissions, it was noted that the applicant understands that the seriousness of his offence cannot be excused and that while “this mindset contains a high level of truism, the gravity of the offence committed by the applicant should not be swept under the carpet” . The representative contended that the offence is on the lower end of the spectrum for criminal record.  Two witnesses who provided letters of support spoke highly of the applicant.  In the course of the hearing, [Mr B] gave evidence that although he did not know the specific nature of the applicant’s conviction, he did know that the applicant had been in prison.  The Tribunal is persuaded by the representative’s oral submissions and the Tribunal has decided not to draw any adverse conclusions on this basis.  [Reverend A] indicated that the applicant has learnt his lesson.  The Tribunal acknowledges the views expressed by the witnesses about the applicant being of good character.  The Tribunal is not determining whether the applicant is a good or bad person; the comments of [Reverend A] that humans are of many possibilities, resonate with the Tribunal.

1. There is before the Tribunal the Sentencing Assessment Report dated 4 March 2020 concluding that the applicant is at a low risk of reoffending.  In submissions, it was contended that as the applicant has been assessed to have a low risk of reoffending, the level of hardship that he might face outweighs any actual risk to the Australian community which will inevitably go against the community expectation of proportionality and reasonableness.  The submissions argued that a cancellation of the applicant’s visa would lead to indefinite detention and removal from Australia to Nigeria where he fears harm.  It was argued that given the imprisonment, the consequence of any further indefinite detention or forceful removal would be an excessive punishment which will go beyond all aspects of financial, psychological and emotional hardship.  The representative referred to comments and views of the  Australian Human Rights Commission (AHRC), essentially the views of the AHRC that the  community expectation of proportionality and reasonableness in visa cancellations which can be grossly abused where a cancellation decision would cause severe hardship consequences; “Where a visa decision has more serious consequences — such as possible refoulement, prolonged immigration detention — the limitations on human rights caused by the decision may not be reasonable or proportionate, even if they have a legitimate objective. What is required is an assessment of the seriousness of the potential consequences against the importance of the objective sought to be achieved to determine whether the limitation on human rights is reasonable and proportionate”. 

2. The assessment of risk is more aligned with cancellations under ss 501 and 116(1)(e).  However, the submissions have argued relevance in the context of hardship.  The Tribunal is of the view that the applicant has committed a serious offence - recklessly deal with proceeds of crime >$5,000 – namely in the amount of over $100,000. He received a custodial sentence reflecting the seriousness of the offence. The author of the Sentencing Report is not suggesting that there is no risk of reoffending but that there is a low risk of reoffending. The Tribunal notes that the Act does not qualify or quantify the risk as being real, or significant, or substantial. Section 116(1)(e) has been the subject of considerable judicial consideration. In Gong v Minister for Immigration and Border Protection[1], Judge Smith held that while the provision did not require there to be any solid or certain foundation before the cancellation power can arise, the decision to cancel had to be based on legally reasonable inferences: at [41].

   [1] Gong v Minister for Immigration and Border Protection[1] [2016] FCCA 561.

3. The Tribunal is satisfied that there is a low risk of reoffending and as such the Tribunal gives this weight in favour of cancellation and does not consider this to be a cause of hardship to the applicant.

4. It is correct that the exercise of cancellation power must be proportionate and reasonable.  The Tribunal appreciates the potential seriousness of cancellation including detention, involuntary removal from Australia, as well as the impact of s.48 of the Act and Public Interest Criterion (PIC) 4013.  The Tribunal is mindful that the applicant has a protection visa application on foot and if granted, he could remain in Australia and if the application is refused, he could then be subject to detention and removal. The Tribunal considers potential detention, removal as well as the s.48 bar and PIC 4013 to be intended legislative consequences.  They are not aimed at punishment of the applicant. Those potential consequences are about maintaining the integrity of the migration program and ensuring community protection through compliance with the law.  However, given the applicant’s mental and physical health, the Tribunal is satisfied that those potential consequences would result in a degree of hardship to the applicant.

5. On balance, the Tribunal gives this consideration weight in favour of the applicant.

   ·Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

6. The ground for cancellation arose as a result of the applicant being convicted in NSW of the offence of the offence of RECKLESSLY DEAL WITH PROCEEDS OF CRIME >$5,000 – T1. There is no dispute about the conviction. The Tribunal is satisfied that the ground for cancellation in s.116(1)(g) exists. In submissions and in oral evidence, the applicant agreed that the ground for cancellation exists. The applicant noted that he did so for financial reasons, he is “ashamed of his actions”, that he was naïve; he met a friend who deceived and lured him into offending.  He noted that during his incarceration, he undertook rehabilitation and participated in a course to improve his behaviour.  He also undertook community rehabilitation and has reflected on his actions.

7. The applicant is now [age] years of age and he would have been about [age] at the time of offending.  The applicant has tertiary qualifications.  The Tribunal finds it difficult to accept that the applicant was naïve and that he was deceived.  However, the Tribunal accepts its limited role in assessing criminality.  The applicant has been convicted and sentenced by a Court in NSW.  It is not the role of the Tribunal to question the outcomes of the criminal Courts.  In Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, the Full Federal Court held that criminal procedures are matters for the Courts and not for an administrative tribunal. The Tribunal must accept the processes of the criminal Courts.

8. The Tribunal has noted the applicant’s explanations.  The applicant has been convicted of a serious offence.  The Tribunal gives this consideration significant weight in favour of cancellation.

   ·Past and present behaviour of the visa holder towards the department

9. The applicant responded to the NOITCC.

10. The Tribunal gives this consideration weight in favour of the applicant.

    ·Whether there would be consequential cancellations under s.140

11. There is no evidence of consequential cancellation under s.140.

12. The Tribunal gives this consideration weight in favour of cancellation.

    ·Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

13. As mentioned earlier, in case of cancellation, the applicant could become an unlawful non-citizen and be liable for detention and removal if he does not voluntarily depart.  Cancellation of the visa would place a limitation under s 48 of the Act, which means that the applicant would have limited options to apply for further visas in Australia. The applicant could also be impacted by PIC 4013, limiting the grant of a further visa for a specified period.

14. The representative contended that Australia has an obligation under article 9(1) of the International Covenant on Civil and Political Rights (ICCPR) not to subject anyone to arbitrary detention. The Tribunal considers potential detention as well as the s.48 bar and PIC 4013 to be intended legislative consequences.  Detention is not arbitrary in this context.

15. The Tribunal gives this aspect neutral weight.

    ·Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)

16. The applicant lodged a protection visa application on 19 May 2020, which was withdrawn.  He has a pending protection visa application.  If found to meet all the relevant criteria, the applicant would be granted a protection visa.  The Tribunal considers it appropriate not to make any comments about the merit of the claims made by the applicant.  It is reasonable to suggest that the application for a protection visa would be determined in accordance with established legal and policy principles which would assess if the applicant is owed Australia’s protection. 

17. The Tribunal is mindful of the delegate’s reference to [specified evidence] indicating harm that could be caused, as evidence of his claim. The Tribunal is satisfied that if relevant, that material would be considered when assessing the protection visa application.  The Tribunal is satisfied that having a protection visa application on foot is not evidence of findings of protection obligations.

18. There is no information before the Tribunal indicating that the applicant’s circumstances would enliven Australia’s international obligations or that cancellation of the applicant’s visa would result in breach of Australia’s international obligations.

19. The Tribunal gives this consideration neutral weight.

    ·If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

20. The student visa is not a permanent visa.  The applicant’s visa would have expired in September 2020 had it not been for the cancellation.

21. The Tribunal gives significant weight in favour of cancellation to the fact that the student visa is not a permanent visa.

    ·Any other relevant matters

22. The evidence before the Tribunal, including the evidence of the two witnesses indicates and the Tribunal accepts that the applicant has made contribution to the Church community and that he has ties with the Australian community.  Both witnesses also spoke highly of the applicant. 

23. The Tribunal gives weight in favour of the applicant.

    Concluding remarks

24. The Tribunal has considered the material before it individually and cumulatively.  There are aspects in the applicant’s favour, essentially relating to his own circumstances.  The determination of this review is not a mathematical formula that requires the simple counting of considerations in favour or against.  The question of consideration involves assessment of the totality of the evidence and balancing the considerations.  The applicant held a temporary visa to undertake studies in Australia and he has achieved the purpose in coming to Australia.  He has however committed a serious offence for which he was imprisoned.  His own circumstances and remorse do not outweigh the seriousness of the offending conduct.  On balance, the Tribunal is satisfied that the matters in favour of cancellation outweigh the other aspects in favour of the applicant.

25. The Tribunal has decided that the ground for cancellation exists and that having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

26. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    Antoinette Younes

    
    Senior Member