Harijan (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to cancel Mr Bharat Harijan's Subclass 500 (Student) visa. The cancellation was based on the ground that Mr Harijan's presence in Australia posed a risk to the health or safety of an individual, specifically his wife, following his conviction for aggravated assault. The applicant sought review of this decision before the Tribunal.

The primary legal issues before the Tribunal were whether the ground for cancellation under section 116(1)(e)(ii) of the Migration Act 1958 was established, and if so, whether the visa should be cancelled in the exercise of discretion. The Tribunal was required to consider the applicant's conviction for assaulting his wife, the potential risk to her safety, and all relevant circumstances, including the applicant's personal situation, his intentions for future study and work, and his claim of financial hardship.

The Tribunal reasoned that the applicant's conviction for aggravated assault, involving placing his hands around his wife's neck, established a risk to her health or safety under section 116(1)(e)(ii) of the Act. The Tribunal noted that this ground did not mandate cancellation. In exercising its discretion, the Tribunal considered the applicant's stated intentions to study business and pursue a career in the IT or digital economy sectors in Nepal, his claims of financial hardship, and his intention to appeal his conviction. However, the Tribunal concluded that its role was to apply migration law to the applicant's circumstances, not to punish him for his criminal offending.

The Tribunal affirmed the delegate's decision to cancel the applicant's visa. The applicant continued to hold a Bridging E visa at the time of the decision.