Basyal (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 500 (Student) visa of the applicant, Basyal. The cancellation was based on the applicant's conviction for an offence under section 116(1)(g) of the Migration Act 1958 (Cth), as prescribed by regulation 2.43(1)(oa) of the Migration Regulations 1994 (Cth). The applicant had been convicted of "excluded person remain in vicinity of licensed premises" and "common assault-T2" and received a conditional release order without conviction for 18 months, along with a fine.

The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa. The applicant conceded that a conviction had occurred for the purposes of establishing the ground for cancellation, notwithstanding the order being made without conviction. The Tribunal was satisfied that the ground for cancellation under section 116(1)(g) was made out. However, as this ground did not mandate cancellation under section 116(3), the Tribunal then considered whether to exercise its discretion to cancel the visa, having regard to all relevant circumstances.

In considering its discretion, the Tribunal had regard to various factors, including the purpose of the applicant's stay in Australia, the circumstances of the offence, the applicant's compliance with visa conditions, and the potential hardship to the applicant. The applicant had come to Australia in 2015 to study and had completed multiple courses, including a Bachelor of Information Technology and diplomas in Leadership and Management. The applicant expressed a strong desire to further their career in the IT field and believed that acquiring additional skills in leadership and management would be beneficial for their future career in their home country. The Tribunal noted the applicant's stated intention to return home after completing their studies and contribute to their society.

Ultimately, the Tribunal concluded that, considering all the circumstances, the visa should not be cancelled. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 500 (Student) visa.