Alshakhel (Migration)

This matter concerned an application by Mr Alshakhel for review of a decision to cancel his Subclass 500 (Student) visa. The cancellation was based on the applicant having committed a criminal offence. The Administrative Appeals Tribunal (AAT) was required to determine whether the visa should be cancelled, considering the applicant's circumstances and any relevant discretionary factors.

The primary legal issue before the Tribunal was whether, in the exercise of its discretion, it should affirm the decision to cancel the applicant's visa. This involved considering the applicant's genuine remorse, his lack of prior criminal offending in his home country, his status as a genuine temporary entrant, and the fact that his spouse and child were Australian citizens. The Tribunal also had to consider adverse information provided under a non-disclosure certificate, which was disclosed to the applicant in a redacted form for comment.

The Tribunal reasoned that the ground for cancellation did not mandate a mandatory cancellation under section 116(3) of the Migration Act 1958 (Cth), meaning the Tribunal retained a discretion. In exercising this discretion, the Tribunal had regard to the applicant's submissions, including his remorse, the context of the assault (which his spouse stated was in response to harassment), his academic achievements, and his family ties in Australia. Despite the valid issuance of the non-disclosure certificate, the Tribunal found that these mitigating factors weighed against cancellation.

Ultimately, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 500 (Student) visa. The Tribunal noted that this decision was reached only marginally in the applicant's favour.