Chen (Migration)

This matter concerned an appeal by the applicant, Mr Chen, against the cancellation of his Subclass 500 (Student) visa. The applicant was a secondary applicant to his partner's visa and had been convicted of a criminal offence, specifically concealing a serious indictable offence. The decision under review was made by the Tribunal, which affirmed the Minister's decision to cancel the applicant's visa.

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. This required the Tribunal to determine if a prescribed ground for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised in the circumstances of the case. The Tribunal also considered the applicant's submissions regarding the circumstances of the offence, his subsequent compliance with a community correction order, his employment, and his mental health.

The Tribunal found that the ground for cancellation under regulation 2.43(1)(oa) of the Migration Regulations 1994 (Cth) was established, as the applicant had been convicted of concealing a serious indictable offence. While this ground did not mandate cancellation, the Tribunal proceeded to consider the exercise of discretion. In doing so, it had regard to various factors outlined in the Department's Procedures Advice Manual, including the purpose of the visa, compelling reasons to remain in Australia, compliance with visa conditions, potential hardship, extenuating circumstances, and the applicant's behaviour. The Tribunal acknowledged the serious nature of the offence, which involved a violent home invasion and assault, and found that the applicant's level of complicity, despite his explanations and character references, did not outweigh the grounds for cancellation.

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