2203857 (Migration)

The Administrative Appeals Tribunal (AAT) considered the cancellation of a Subclass 500 (Student) visa held by a secondary applicant. The applicant had been convicted of several offences, including common assault and shoplifting, and was no longer considered a member of the family unit of the primary visa holder, his former wife. The AAT was required to determine whether the grounds for visa cancellation existed and, if so, whether the visa should be cancelled in the exercise of discretion.

The primary legal issue was whether the applicant's criminal convictions constituted a prescribed ground for visa cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) and regulation 2.43 of the Migration Regulations 1994. The Tribunal also had to consider whether there were any compelling reasons for the applicant to remain in Australia and, if the grounds for cancellation were met, whether to exercise its discretion to cancel the visa.

The Tribunal found that the applicant's convictions for common assault and shoplifting satisfied the prescribed ground for cancellation under regulation 2.43(1)(oa), as he was the holder of a temporary visa and had been convicted of offences against Commonwealth, State, or Territory law. While this ground did not mandate cancellation under section 116(3) of the Act, the Tribunal was required to consider whether to cancel the visa in the exercise of its discretion. The Tribunal had regard to the applicant's circumstances, including his cessation of studies, his divorce from the primary visa holder, his limited ties to Australia, and his prior unsuccessful attempts to obtain a protection visa. The Tribunal concluded that there was no compelling need for the applicant to remain in Australia and affirmed the decision to cancel his visa.