Bhatt (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Subclass 500 (Student) visa was subject to cancellation. The dispute arose from the applicant's criminal convictions for domestic violence offences, including assault occasioning bodily harm, attempting to stalk or intimidate with intent to cause fear of harm, and contravening a prohibition or restriction in an apprehended domestic violence order. The applicant had pleaded guilty to these offences and received a sentence of intensive correction in the community for the more serious charges, along with a fine for the third offence.

The primary legal issue before the Tribunal was whether the Minister's decision to cancel the applicant's visa under section 116(1)(g) of the Migration Act 1958 (Cth) was justified, and if so, whether the discretion to cancel the visa should be exercised. This involved determining if the prescribed ground for cancellation, as set out in regulation 2.43(1)(oa) of the Migration Regulations 1994, was established by the applicant's criminal convictions. If the ground was established, the Tribunal then had to consider all relevant circumstances in exercising its discretion regarding cancellation.

The Tribunal found that the ground for cancellation was indeed established, as the applicant had been convicted of offences against Commonwealth and State law. However, the Tribunal was not mandated to cancel the visa under section 116(3) of the Act. In exercising its discretion, the Tribunal had regard to various factors, including the applicant's remorse, the significant hardship that cancellation would cause to his wife, and the circumstances surrounding the offending behaviour. Despite the seriousness of the domestic violence offences, the Tribunal concluded that, when considering all the circumstances, the visa should not be cancelled.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 500 (Student) visa and substituted a decision not to cancel it.