Bagri (Migration)

This matter concerned an appeal to the Tribunal regarding the cancellation of the applicant's Subclass 500 (Student) visa. The applicant, a secondary visa holder accompanying his wife who was the primary visa holder, had breached condition 8104 of his visa by working in excess of 40 hours per fortnight. The Minister had the power to cancel the visa under section 116(1)(b) of the Migration Act 1958 (Cth) if satisfied that a visa condition had not been complied with.

The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised. The applicant admitted to working more than 40 hours a fortnight, thus satisfying the ground for cancellation under section 116(1)(b). However, this ground did not mandate cancellation under section 116(3), allowing the Tribunal to consider the exercise of discretion.

In considering the discretion, the Tribunal had regard to the applicant's circumstances, including his claim that he inadvertently worked excessive hours while trying to support his wife and their family unit. The Tribunal accepted the applicant's evidence that he had no intention of breaching the visa condition and that his actions were motivated by a genuine desire to support his family. The Tribunal also acknowledged the significant stress and anxiety the applicant and his wife had experienced due to the visa cancellation, including a fall and injury sustained by the applicant. Furthermore, the Tribunal noted that the applicant's wife was on a pathway to gaining Australian work experience and had applied for a Subclass 485 visa.

Balancing these circumstances, the Tribunal concluded that the applicant's visa should not be cancelled. Accordingly, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 500 visa.