Bista (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Subclass 500 (Student) visa held by the applicant. The Minister had initiated the cancellation process under section 116 of the Migration Act 1958 (Cth) following the applicant's conviction for offences including assault and resisting police. The applicant sought review of this decision.

The primary legal issue before the Tribunal was whether the Minister's decision to cancel the applicant's visa was justified. This involved determining if a prescribed ground for cancellation existed, and if so, whether the discretion to cancel the visa should be exercised in the applicant's circumstances. The Tribunal was required to consider all relevant factors, including those outlined in the Department's Procedures Advice Manual concerning general visa cancellation powers.

The Tribunal found that the applicant had been convicted of offences and sentenced to a conditional release order, which satisfied the ground for cancellation under regulation 2.43(1)(oa) of the Migration Regulations 1994. However, the Tribunal then exercised its discretion not to cancel the visa. In reaching this conclusion, the Tribunal had regard to the applicant's remorse, his completion of the sentence, his solid academic progress, his plans for a business in Nepal, and numerous character and work references. The Tribunal also considered the potential hardship to the applicant and his wife if the visa were cancelled.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel the Subclass 500 (Student) visa. The Tribunal noted it had no jurisdiction concerning a second applicant.