Deol (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Student (Temporary) (Class TU) visa, subclass 500. The applicant arrived in Australia in April 2017 as a dependent on his wife's visa. His visa was cancelled on 28 December 2018, and he had been detained since that time. The applicant contended that he had suffered emotional and mental harm due to his detention and separation from his wife, and provided letters of support, none of which referred to his charges or convictions.

The Tribunal was required to determine whether the grounds for cancellation existed under section 116(1)(g) of the Migration Act 1958 (Cth) and regulation 2.43(oa) of the Migration Regulations 1994 (Cth), which permit cancellation if a visa holder has been convicted of an offence against a law of Queensland. The Tribunal also had to consider whether, having found grounds for cancellation, the visa should be cancelled, taking into account all relevant circumstances, including government policy, the purpose of the visa, and the hardship that cancellation might cause.

The Tribunal found that the applicant had been convicted of two offences: Common Assault on 10 July 2017, for which he received nine months' probation without conviction recorded, and Sexual Assault on 25 July 2017, for which he received a four-month suspended sentence and a conviction was recorded. The applicant attributed these incidents to misunderstandings due to his limited English, lack of understanding of social norms, and inability to afford legal assistance, maintaining his innocence. However, the Tribunal noted that the applicant did not appear to have any awareness of the seriousness of his offending, attributing his incarceration to failures in the judicial system and continuing to make excuses for his behaviour. The Tribunal was not satisfied that the applicant's personal circumstances compelled it not to cancel the visa.

The Tribunal affirmed the decision to cancel the applicant's visa. It found that the applicant's wife, who had applied for a further visa to complete her studies, would find it difficult but wanted to remain in Australia to complete her studies, even if the applicant was required to return to India. The Tribunal concluded that it was a matter for the applicant and his wife to decide whether she remained in Australia alone or returned with him, and that the applicant's personal circumstances did not outweigh the grounds for cancellation.