2203857 (Migration) - [2022] AATA 4656

2203857 (Migration) [2022] AATA 4656 (6 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2203857
DEPUTY PRESIDENT:  Antoinette Younes
DATE:6 June 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 06 June 2022 at 2:48pm
CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – secondary applicant on former wife’s visa – criminal conviction – applicant no longer meets the requirements of being a member of the family unit of the primary visa holder – no compelling need for the applicant to remain in Australia – applicant gave an incorrect answer in the visa application – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116, 375
Migration Regulations 1994 (Cth) r 2.43
CASES
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

This is an application for review of a decision dated 3 December 2018 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 (Cth) (the Act).
The delegate cancelled the visa under s 116(1)(g) on the basis that the applicant has been convicted of offences in New South Wales. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 25 May 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mongolian and English languages.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
Section 375A Certificate
During the hearing, the Tribunal advised the applicant of the existence of a s 375A Certificate.
Under s 375A, the Secretary of the Department of Home Affairs (Department) may certify that certain information is only to be disclosed to the Tribunal. The effect of such a certification is that the Tribunal is prohibited from disclosing the document and/or information in it to the applicant. In Singh v MIBP,[1] the Federal Court found that where the obligations in ss 359A and 375A come into conflict, s 375A is the leading provision but that the aims of both ss 375A and 359A can usually be served without conflict.
[1] Singh v MIBP [2020] FCA 783 at [56].
The grounds identified in the Certificate are that disclosure would:
disclose, or enable a person to ascertain the existence or identity of, a confidential source of information
disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods
The Tribunal advised the applicant that the information contained in the material subject to the Certificate relates to internal methods of investigation. The Tribunal indicated that the Tribunal considered the Certificate to be valid for the reasons outlined in the Certificate. The applicant did not raise concerns.
consideration of Claims and evidence
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 – Power to cancel
(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.
(2) The Minister is not to cancel a visa under subsection (1), (1AA), (1AB) or (1AC) if there exist prescribed circumstances in which a visa is not to be cancelled.
(3) If the Minister may cancel a visa under subsection (1), (1AA), (1AB) or (1AC), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled. Regulation 2.43 of the Migration Regulations 1994 (‘the Regulations’) prescribes the following ground for cancelling a visa:
Reg 2.43 Grounds for cancellation of visa
(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).
In support of the application for review, the applicant provided to the Tribunal a copy of the delegate’s decision record.
During the hearing, the Tribunal discussed with the applicant information which became available to the Department, as follows:
·On 10 January 2018, the applicant was convicted of Common Assault (DV) and fined $1,100 at the [Local] Court;
·On 1 May 2018, the applicant was convicted of Shoplifting value <=$2,000 and received a Bond S9:10 months at [a] Local Court;
·On 2 May 2018, the applicant was convicted of Common Assault (DV) and received a Bond S9:12 months at [a] Local Court.
NOTICE OF INTENTION TO CONSIDER CANCELLATION (NOICC) & RESPONSE
On 21 November 2018, the Department sent to the applicant a NOICC (or Notice), to which the applicant did not respond.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind and that the Notice complied with the statutory requirements.
The Tribunal is satisfied that the Notice contains sufficient particulars to enable the applicant to identify and address the issues raised in the Notice.
Material received by the Tribunal
The Tribunal received from the applicant documents including:
·A letter of support from the applicant’s former spouse [name deleted] dated 17 May 2022, among other things, referring to the applicant as being a good person and an upstanding citizen.
·A letter of support from Rev [A], [a church], dated 18 May 2022, among other things, referring to the applicant being an honest, stable, calm and consistent person. Rev [A] also referred to the applicant’s dedication to his Christian faith.
·A letter of support from Mr [B], dated 17 May 2022, referring to the applicant’s Christian faith and his fear of persecution on the basis of his religion. [Mr B] referred to the applicant as being polite, respectful and compliant.
·A letter of support from Father [C], dated 4 June 2021, referring to the applicant’s attendance at a program [aimed] at supporting the participants in developing and maintaining positive relationships with their children.
·Certificates of participation in various life skills, drug and alcohol education, and men’s groups in 2021 aimed at personal development and behavioural change.
During the hearing, the applicant agreed that he has been convicted and sentenced as outlined above. The Tribunal explained to the applicant that it appears that the ground for cancellation arises, which the applicant understood.
The applicant is not disputing that the ground for cancellation exists but is contending that the visa should not be cancelled on discretionary grounds.
On the evidence, the Tribunal is satisfied that the applicant has been convicted of the offences of Common Assault (DV) and Shoplifting, and 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
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
The applicant gave evidence that he came to Australia in April 2017 as a primary holder of a student visa. He studied for 2 to 3 months and stopped studying because his partner did not want him to attend classes. He stated that he became a secondary applicant on his wife’s (now former) student visa which was granted on 28 March 2018. He stated when his spouse arrived in Australia they lived together and now they are officially divorced.
The applicant gave evidence that he has two children aged [age] and [age]years old. He stated that his children live with their mother in Mongolia. He stated that the children have never been to Australia and he maintains telephone contact with them but he perceives their reluctance to talk to him. He stated that he last saw his children at the airport when he left Mongolia. He stated that during the time his wife was in Australia, the children were cared for in Mongolia by his in-laws and his parents.
In terms of relatives in Australia, the applicant gave evidence that he has an “auntie”. He gave evidence that prior to his detention in Australia, he was living with his “girlfriend”. He stated he was embarrassed about his conduct in that he started a relationship with Ms [D] whilst he was still married to his now former spouse. The Tribunal asked the applicant about his current relationship with [Ms D] and he stated they are no longer together but that she contacts him to check in. He stated that [Ms D] has two children aged 12 and about eight years old. He confirmed that he does not have a current relationship with either [Ms D] or her children.
The applicant gave evidence that he used to work in Australia on construction sites but had suffered an injury.
The Tribunal discussed with the applicant the documents that he provided in support and indicated that it would give them as much weight as it considered to be appropriate. Relevantly, in relation to the claim of fear of persecution on the basis of his faith, made by [Mr B], the applicant gave evidence that he lodged an application for a protection visa in 2019 on the basis that he was previously a [Occupation 1] in Mongolia and feared persecution at the hands of criminals. He indicated that the protection visa application was refused and that he sought review of that decision at the AAT which affirmed the delegate’s decision to refuse to grant a protection visa. He stated that he unsuccessfully appealed the Tribunal’s decision.
At the end of the hearing, the applicant told the Tribunal that he understands that he has committed offences which are serious but that he would like to change his life. He said he made promises to his children and he has not been able to deliver. He said he wanted to start his life afresh.
Prior to its cancellation, the applicant was the holder of a Student (Subclass 500) visa which was granted on 28 March 2018, as a secondary visa holder. The purpose of this visa was to allow the applicant to remain in Australia as a member of the family unit of the primary visa holder, the applicant’s spouse, who was in Australia for the purpose of study. During the hearing, the Tribunal noted that the applicant is no longer married to the primary visa holder and that the student visa which he held would have expired on 12 May 2021.
In relation to the visa granted on 28 March 2018, the applicant’s purpose to travel to Australia was to remain in Australia as a member of the family unit of his now former spouse, who was in Australia for the purpose of study, consistent with the purpose of that visa. However, the visa would have expired on 12 May 2021 and given the divorce, the applicant no longer meets the requirements of being a member of the family unit of the primary visa holder. On his own evidence, the applicant is now divorced.
The applicant is not in any other relationship. His two children live with their mother in Mongolia.
The Tribunal has carefully considered the applicant’s circumstances, including having an auntie in Australia. The Tribunal does not consider that the applicant has a compelling need to remain in Australia.
On balance and particularly as there is no compelling need for the applicant to remain in Australia, the Tribunal gives this consideration weight in favour of cancellation.
·The extent of compliance with visa conditions
The applicant’s student visa was granted subject to conditions 8105 (work limitation), 8501 (health insurance), 8516 (maintain eligibility) and 8201 (maximum 3 months study).
There is no evidence before the Tribunal to suggest that the applicant has not complied with any of those conditions.
The Tribunal gives this consideration some weight against cancellation.
·Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant did not respond to the NOICC. In oral evidence, he confirmed that he is now divorced from the primary visa holder who lives with their two children in Mongolia. The applicant told the Tribunal that he promised his children that he would bring them to Australia but he has not been able to fulfil that promise and instead has gotten into trouble with the law. He has worked in Australia prior to being injured. Although he has an auntie in Australia, his former spouse and children live in Mongolia.
The Tribunal is mindful that the applicant has committed offences against his now former wife and although his actions are questionable, the Tribunal accepts that the applicant would be disappointed in case of the cancellation of his visa. The cancellation of the applicant’s visa would result in emotional, psychological and financial hardships, although this needs to be considered in the context of the fact that the visa would have expired on 12 May 2021 and given the divorce, the fact that the applicant would no longer meet the requirements of being a member of the family unit of the primary visa holder.
Moreover, the applicant could become an unlawful non-citizen and could be detained (indefinitely) under s 189 and removed under s 198 of the Act. Although these are legitimate consequences of the legislation, there is a degree of hardship associated with detention and removal.
The Tribunal gives this consideration some weight against cancellation.
·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
The ground for cancellation arose as a result of the applicant being convicted of common assault twice and shoplifting.
The applicant stated that he accepts his convictions and intends to live a different life. He asked the Tribunal to give him another chance so that he can bring his children to Australia. The applicant has provided multiple letters of support and evidence such as certificates of participation in various life skills, drug and alcohol education, and men’s groups in 2021 aimed at personal development and behavioural change. The Tribunal notes and gives some weight to the letters of support and that the persons who provided the letters do believe that the applicant is a “good” person. The Tribunal acknowledges the applicant’s explanations, understanding of wrongdoing, and apparent commitment to behaviour modification. However, the Tribunal is of the view that the conduct was not beyond the applicant’s control. Violence is not acceptable and its impacts on victims cannot be underestimated. In this case the victim is the applicant’s spouse. It is also noteworthy that on 10 January 2018, the applicant was convicted of Common Assault (DV), and about four months later, he was convicted of a second offence of Common Assault (DV), raising concerns about his conduct.
The Tribunal explained to the applicant that although the Tribunal notes his explanations, including limited life-skills, substance issues, and views about male-female relations, the Tribunal must accept that he has been convicted of the above offences. The Court’s findings are that the applicant had committed the offences with which he was charged. It is not open to this Tribunal to go beyond the findings of the sentencing Court. In Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, the Full Federal Court held that a conviction, and the sentence imposed as a result of a conviction, are matters for the criminal law and its procedures are not for an administrative tribunal. Their Honours Branson, Lindgren and Emmett held:
[45] To impugn the sentencing process in that way is bad as a matter of public policy. It is improbable that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source, should review the essential factual bases of a conviction and of the resulting sentence. The policy must be that a conviction and a sentence imposed as a result of a conviction, are matters for the criminal law and its procedures. If a sentence, like a conviction, is otherwise than in accordance with the law, a right of appeal is available to remedy any miscarriage of justice. If new or fresh evidence comes to hand, again criminal procedures can be availed of.
[46] While it stands, the conviction and sentence must be conclusive, so far at least as concerns tribunal reviewing a decision that takes the conviction and sentence as its starting point.
The Tribunal gives this consideration significant weight in favour of cancellation.
·Past and present behaviour of the visa holder towards the Department
The Tribunal discussed with the applicant the fact that he did not respond to the NOICC. The applicant indicated that this was a big mistake on his part. He said his English at the time was not good and his “girlfriend” told him that the visa had not been cancelled. He said at the time he was down psychologically and was consuming a lot of alcohol. He said he had also lost his mobile telephone. The Tribunal has found those explanations to be unpersuasive; the cancellation of a visa is a significant process for a visa holder. The Tribunal is of the view that not responding to the NOICC suggests indifference to, or lack of respect for migration laws and processes.
The Tribunal discussed with the applicant the negative answers in the application for the student Subclass 500 visa lodged on 28 February 2018, to the questions asking “…Has any applicant ever been charged with any offence that is currently awaiting legal action?” and “…Has any applicant ever been convicted of an offence in any country?”. The Tribunal indicated that the answers would appear to be incorrect because on 5 January 2018, he was charged with the offence of common assault and convicted on 10 January 2018. The applicant stated that he did not complete the form as this was done by an agent and the mistake occurred without his knowledge. He said he did not deliberately provide the incorrect information. The Tribunal explained to the applicant that there need not be a deliberate intention to provide incorrect information.

Although for the purpose of ss 100-102 and ss 104-105 of the Act, relevantly s 99 of the Act provides that:
Information is answer
Any information that a non-citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment Authority, reviewing a decision under this Act in relation to the non-citizen's application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non-citizen's application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
The Tribunal is not suggesting that s 99 applies to this case, it does however demonstrate that the provision of incorrect information is a serious matter.
The Tribunal gives this consideration weight in favour of cancellation.
·Whether there would be consequential cancellations under s 140
There is no evidence of any consequential cancellation pursuant to s 140.
The Tribunal has decided to give this consideration neutral weight.
·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
In case of cancellation, the applicant would be subject to s 48 of the Act which means that he might be limited in applying for another visa whilst in Australia, unless the Minister lifts the relevant bars using personal non-compellable power.
Moreover, the applicant could become an unlawful non-citizen and could be detained under s 189 and removed under s 198 of the Act. The Tribunal is mindful that the Minister has a personal non-compellable power in s 195A of the Act to grant a visa if it is in the public interest.
The applicant would also be subject to public interest criterion 4013 for three years, in case of cancellation.
The Tribunal is of the view that those consequences are intended legislative consequences to give power to detention and removal from Australia.
The Tribunal has dealt with the potential hardship associated with detention and removal from Australia.
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
Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm. Australia is a signatory to several international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). ‘Non-refoulement obligations’ is not confined to the protection obligations to which s 36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Act to include non‑refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.
Article 33 of the Refugees Convention is relevant in this instance. Refoulement is prohibited under Article 33 of the Refugees Convention unless:
·there are reasonable grounds for regarding the refugee as a danger to the security of the country in which they are in; or
·the refugee has been, by a final judgment, convicted of a particularly serious crime and constitutes a danger to the community.
The Tribunal has considered whether the applicant’s circumstances may engage ‘non‑refoulement obligations’ which are broader than the term ‘protection obligations’ contained in s 36 of the Act.
On his own evidence, the applicant applied for a protection visa on the basis of fearing harm at the hands of ‘criminals’ due to his role as a [Occupation 1] in Mongolia. He told the Tribunal that the application was refused and the AAT affirmed the refusal which has been upheld on appeal. Although this is not a claim clearly articulated or elaborated upon by the applicant, [Mr B], in his letter dated 17 May 2022, refers to the applicant’s Christian faith and the applicant’s claimed fear of persecution on the basis of his religion. In the course of the hearing, the applicant’s stated reason for not wishing to return to Mongolia relates to a promise he made to his children that he would bring them to Australia.
The applicant has not been found to be owed Australia’s protection obligations. In case he believes he could be harmed on religious grounds, it would be open to the applicant to request Ministerial Intervention to, among other things, enable the applicant to lodge another application for a protection visa and any such request would be considered in accordance with established guidelines and principles.
Relevantly, s 48B provides that the Minister may determine s 48A should not apply to prevent an application for protection if he or she thinks it is in the public interest to do so. In other words, the Minister may lift the bar on making subsequent applications for protection. The power may only be exercised by the Minister and there is no duty to consider whether to exercise such discretion. If the Minister does exercise the discretion, he or she must provide certain information to Parliament about the determination to do so.
Section 50 provides that if an applicant makes a further application for a protection visa where the grant has been refused and finally determined the Minister is not required to reconsider any information considered in the earlier application.
In essence, the combined effect of ss 46, 48A and 48B of the Act is to prevent repeat applications for protection based on claims previously made when an applicant is in the migration zone unless the Minister determines it is in the public interest to do so. If the Minister allows a further application to be made under s 50 of the Act, any further consideration would generally be confined to new information.
Importantly, prior to any removal, the Department might undertake an International Treaties Obligations Assessment which will determine if there are any international obligations for consideration. The Tribunal is of the view that it is reasonable to suggest that cancellation is a different process to removal and that Australia would not remove a person in breach of international obligations. Consistent with the Full Federal Court’s authority in WKMZ, it is open for a decision maker to find that a person faces a low risk of being returned to a country where they face a real chance of Convention-related harm, based on statements of executive policy that Australia will not do so, in the absence of evidence to the contrary.[2]
[2] WKMZ v MICMSMA [2021] FCAFC 55, at [151].
Convention on the Rights of the Child (CROC)
As a signatory to the CROC, Australia has an obligation concerning children in Australia. The CROC applies to children under 18 years of age. By being a signatory, Australia has agreed to act in a manner consistent with the CROC, recognising the best interests of the child.
The CROC sets out the rights of children in 54 Articles and two Optional Protocols. It spells out the basic human rights that children everywhere have: the right to survival, to develop to the fullest, to protection from harmful influences, protection against abuse and exploitation, to participate fully in family, cultural and social life. The four core principles of the CROC are non-discrimination, devotion to the best interests of the child, the right to life, survival and development, and respect for the views of the child. The CROC sets out standards in relation to health care, education, legal and civil rights.
Article 3 of the CROC states:
1.In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
2.States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
3.States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.
The applicant has two children aged [age] and [age] years old who live with their mother in Mongolia. He stated that the children have never been to Australia and he maintains telephone contact with them but he perceives a reluctance to talk to him on their part. He stated that he last saw his children at the airport when he left Mongolia. He stated that during the time his wife was in Australia, the children were cared for in Mongolia by his in-laws and his parents.
The Tribunal discussed with the applicant the primary interest of children and indicated to him that it would appear to be that it is in their best interest for him to be with them in Mongolia. He stated that he has promised his children that he would bring them to Australia and that he has not been able to fulfil that promise.
The applicant was in a relationship with [Ms D] who has two [children]. The applicant confirmed that he does not have a current relationship with either [Ms D] or her children. The Tribunal is satisfied that [Ms D]’s children are not impacted by the cancellation.
In relation to the applicant’s two children who are not in Australia, Departmental guidelines provide that the obligation only applies ‘to children who are within Australia’s territory or jurisdiction’.[3] In any case, the children live with their mother in Mongolia while the applicant has been in detention in Australia, although the applicant is hoping to bring them to Australia to fulfil his stated promise. As to whether the applicant would be able to do so is speculative; even if the visa is not cancelled, it has expired and the applicant is no longer with the primary visa holder, so he could not be granted the visa. The visa cancellation could however mean that the applicant might reunite with his children in Mongolia, which could be in their best interest. The Tribunal is of the view that Australia would not be in breach of its obligations under the CROC or any other international obligations in case of the visa cancellation.
[3] Policy – Migration Act – Visa Cancellation instructions – General visa cancellation powers (s109, s116, s128, 134B & s140) – Best interest of children (reissued 01/07/2017).
The Tribunal gives this aspect neutral weight.
·If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
The Subclass 500 student visa is a temporary visa. The Tribunal has under different considerations dealt with the applicant’s circumstances.
The Tribunal gives this aspect neutral weight.
·Any other relevant matters
There are no other relevant matters.
The Tribunal has carefully considered the material before it individually and cumulatively. There are limited aspects in the applicant’s favour, essentially relating to his own circumstances. On balance, the Tribunal is satisfied that the evidence weighs heavily in favour of cancellation. The applicant has been convicted of offences that involve his former wife. He was a secondary applicant on her visa. She is no longer in Australia and the visa would have expired in May 2021. His two minor children are in Mongolia with their mother.
On balance, the Tribunal considers that the matters in favour of cancellation outweigh the other aspects in favour of the applicant.
The Tribunal has decided that the ground for cancellation exists and, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
decision
The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.
Antoinette Younes
Deputy President