Gautam (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Student (Temporary) (Class TU) visa, Subclass 500, held by the applicant. The dispute arose from the Minister's decision to cancel the visa on the grounds that the applicant had been convicted of an offence. The applicant sought review of this decision.

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 the discretion to cancel the visa should be exercised. Specifically, the Tribunal had to consider if the applicant had been convicted of an offence against a law of the Commonwealth, a State, or Territory, as prescribed by regulation 2.43(1)(oa) of the Migration Regulations 1994. If the ground was established, the Tribunal then had to weigh all relevant circumstances, including the applicant's personal situation and the purpose of his stay in Australia, in deciding whether to affirm the cancellation.

The Tribunal found that the ground for cancellation was established, as the applicant had been convicted of the offence of Sexually Touch Another Person Without Consent -T2 on 17 November 2020, for which he received a fine and a community correction order. Although this ground did not mandate cancellation, the Tribunal proceeded to consider the exercise of discretion. It acknowledged the applicant's stated purpose of undertaking studies in Australia, his partial completion of a course, and his desire to finish his studies as compelling reasons for him to remain. The Tribunal also noted the applicant's compliance with visa conditions and the potential hardship, including psychological, financial, and emotional distress, that cancellation could cause to him and his family, particularly in light of his existing mental health issues and alcohol-related problems. However, after considering all these factors, the Tribunal concluded that the visa should be cancelled.

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