Chhetri (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 500 (Student) visa. The applicant had been convicted of an offence involving recklessly dealing with the proceeds of crime exceeding $5,000, for which they received a community correction order. The Tribunal was required to determine whether the ground for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) was established, and if so, whether to exercise its discretion to cancel the visa.

The primary legal issue was whether the applicant's conviction for recklessly dealing with the proceeds of crime constituted a prescribed ground for visa cancellation under regulation 2.43(1)(oa) of the Migration Regulations 1994 (Cth). If this ground was established, the Tribunal then had to consider whether to affirm the cancellation decision, having regard to all relevant circumstances, including those outlined in the Department's Procedures Advice Manual and any matters raised by the applicant.

The Tribunal found that the applicant had been convicted of the offence as alleged, and acknowledged the penalty imposed. However, the Tribunal concluded that the ground for cancellation under section 116(1)(g) was not satisfied, and therefore the power to cancel the visa did not arise. Despite this finding regarding the ground for cancellation, the Tribunal proceeded to consider the exercise of discretion, noting that no specific matters were mandated for consideration by the Act or Regulations. The Tribunal considered a broad range of factors, including the purpose of the visa, compliance with conditions, hardship, extenuating circumstances, and potential international obligations. Ultimately, the Tribunal affirmed the decision to cancel the applicant's visa.