Deng (Migration)

This matter concerned an application by a 23-year-old national of the People's Republic of China for review of a decision to cancel his Subclass 010 (Bridging A) visa. The applicant had arrived in Australia to pursue tertiary studies and had been granted a Student (subclass 500) visa. While in Australia, the applicant was involved in an altercation at a party, resulting in him wounding another individual with a broken bottle. He was subsequently arrested, remanded in custody for approximately six months, and later convicted of reckless wounding. Following an appeal against his sentence, his custodial sentence was replaced with a Community Correction Order. The applicant had since re-enrolled and was continuing his tertiary studies as a full-time student.

The legal issues before the Tribunal were whether the ground for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) was made out, and if so, whether the visa should be cancelled in the exercise of the Minister's discretion, considering all relevant circumstances. The Tribunal was required to assess the applicant's genuine determination to complete his studies, any compelling need to remain in Australia, the potential impact of Public Interest Criteria (PIC) 4013 on his future visa applications, and the genuine hardship he might face.

The Tribunal found that the ground for cancellation under section 116(1)(g) was established due to the applicant's criminal conviction. However, the Tribunal determined that cancellation was not mandatory. In exercising its discretion, the Tribunal considered the applicant's compelling need to remain in Australia to complete his tertiary studies, noting his genuine commitment and progress despite the disruption caused by his legal proceedings. The Tribunal also weighed the potential negative impact of PIC 4013, which could significantly hinder his ability to obtain a further temporary visa, including his current Student visa application. The Tribunal concluded that the applicant's risk of reoffending was low and that he had demonstrated a genuine hardship if his visa were cancelled.

Consequently, the Tribunal set aside the decision to cancel the applicant's Bridging A visa.