Bista (Migration)

This matter concerned an appeal by the applicant, Bista, against the cancellation of his Subclass 500 (Student) visa. The cancellation was based on the ground that he had been convicted of an offence against a law of a State, specifically assault occasioning actual bodily harm, common assault, and contravention of an apprehended domestic violence order in New South Wales. 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 Tribunal first considered whether the ground for cancellation under s 116(1)(g) of the Migration Act 1958 (Cth) and r 2.43(1)(oa) of the Migration Regulations 1994 (Cth) was made out. The applicant did not dispute his convictions, and the Tribunal was satisfied that the ground for cancellation existed. As the cancellation was not mandatory, the Tribunal then proceeded to consider whether to exercise its discretion to cancel the visa, having regard to all relevant circumstances.

In exercising its discretion, the Tribunal considered the purpose of the applicant's stay in Australia, which was to provide financial and emotional support to his wife, who held a Student visa. While the applicant expressed remorse and a desire to remain, the Tribunal was not satisfied that he had a compelling need to stay. The Tribunal noted that his wife had some support in Australia and that many students manage without a partner. Furthermore, the Tribunal found that the applicant's violent conduct, which had resulted in his convictions, indicated that his presence had been detrimental rather than supportive to his wife's well-being and studies. The Tribunal concluded that the circumstances as a whole warranted the cancellation of the visa.

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