Bhutta (Migration)

The Administrative Appeals Tribunal considered the case of Mr. Bhutta, who sought review of a decision to cancel his Skilled (Provisional) (Class VF) visa, Subclass 476 (Skilled – Recognised Graduate). The cancellation was based on Mr. Bhutta having a criminal conviction for careless driving causing bodily harm and a subsequent fine, as well as a failure to declare this conviction on an incoming passenger card.

The primary legal issue before the Tribunal was whether, having found that the ground for cancellation under s 116(1)(g) of the Migration Act 1958 (Cth) was met, the Tribunal should exercise its discretion not to cancel Mr. Bhutta's visa. This required the Tribunal to consider various factors, including the purpose of Mr. Bhutta's travel and stay in Australia, his compliance with visa conditions, and the degree of hardship that might be caused by cancellation.

The Tribunal reasoned that while the ground for cancellation was established, it did not mandate cancellation. In exercising its discretion, the Tribunal had regard to Mr. Bhutta's stated intention to further his career and settle in Australia, his engagement in skilled employment, and the absence of any non-compliance with visa conditions. Crucially, the Tribunal accepted evidence that Mr. Bhutta provided financial support to his parents, who suffered from poor health and had a flood-damaged home, making them reliant on his assistance. The Tribunal also noted Mr. Bhutta's recent application for another class of visa and his intention to return to Australia if his current visa were reinstated.

Ultimately, the Tribunal concluded that, considering all the circumstances, the decision to cancel Mr. Bhutta's visa should be set aside. The Tribunal substituted a decision not to cancel the applicant’s Subclass 476 visa.