Alvindo (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 500 (Student) visa. The applicant had been convicted of offences relating to child abuse material and the use of optical surveillance devices. The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether the visa should be cancelled in the exercise of discretion.

The Tribunal considered whether the ground for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) was made out. This ground applies if the Minister is satisfied that a prescribed ground for cancellation applies, which in this case was established by regulation 2.43(1)(oa) of the Migration Regulations 1994 (Cth). This regulation provides that a ground for cancellation exists if the visa holder has been convicted of an offence against the law of the Commonwealth, a State, or Territory. The applicant had pleaded guilty to and been convicted of multiple offences, including knowingly possessing child abuse material and using optical surveillance devices, resulting in community correction orders and registration as a sex offender.

Having found that the ground for cancellation was established, the Tribunal then considered whether to exercise its discretion to cancel the visa. While section 116(1)(g) does not mandate cancellation, the Tribunal must consider all relevant circumstances. These circumstances, as outlined in the Department's Procedural Instruction, include the purpose of the visa, compelling reasons to remain, compliance with visa conditions, hardship, extenuating circumstances, past and present behaviour, potential consequences of cancellation such as indefinite detention or breach of non-refoulement obligations, and the impact on children. The applicant had provided evidence of remorse, mental health issues, and attempts to obtain psychological support, including consultations with medical professionals and counsellors. However, after considering all the circumstances, the Tribunal concluded that the visa should be cancelled.

The Tribunal affirmed the decision to cancel the applicant's Subclass 500 (Student) visa.