Hatti (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the visa of an applicant who held a Subclass 500 (Student) visa. The cancellation was based on criminal convictions, specifically two driving offences: driving with a middle-range prescribed concentration of alcohol and driving a motor vehicle during a disqualification period. The applicant had also faced charges of cruelty to an animal, which were dismissed under the *Mental Health and Cognitive Impairment Forensic Provisions Act 2020* (NSW) on the condition of compliance with a treatment plan for mental health issues.

The Tribunal was required to determine whether the grounds for visa cancellation under section 116(1)(g) of the *Migration Act 1958* (Cth) were established, and if so, whether the discretion to cancel the visa should be exercised. The Tribunal found that the applicant had indeed been convicted of the two driving offences, satisfying the ground for cancellation under regulation 2.43(1)(oa) of the *Migration Regulations 1994* (Cth). However, the animal cruelty charges were dismissed due to the applicant's mental health condition, which was supported by a psychologist's report detailing his struggles with anxiety, depression, alcohol abuse, and gambling, and concluding that these conditions constituted a mental impairment at the time of the offences.

In exercising its discretion, the Tribunal considered various factors, including the applicant's purpose for being in Australia, his compliance with visa conditions, the potential hardship cancellation would cause, and the circumstances surrounding the offending behaviour. Crucially, the Tribunal gave significant weight to the psychologist's report, which indicated that the applicant's mental health condition significantly impacted his judgment and volition at the time of the offences. Coupled with the applicant's subsequent completion of his qualification and plans for further study, and his compliance with a treatment plan, the Tribunal concluded that the circumstances did not warrant visa cancellation.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 500 (Student) visa and substituted a decision not to cancel it.