Inostroza (Migration)

This matter concerned an appeal by the applicant, a Chilean citizen, against the cancellation of his Subclass 500 (Student) visa. The ground for cancellation was that the applicant had been convicted of an offence against the law of a State, specifically "Assault occasioning actual bodily harm" in Sutherland Local Court on 14 December 2018, for an incident that occurred on 4 August 2018. The applicant was sentenced to an 18-month community correction order and ordered to pay compensation. The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to affirm the cancellation decision.

The Tribunal first considered whether the ground for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) and regulation 2.43(1)(oa) of the Migration Regulations 1994 was established. The applicant did not dispute his conviction for assault occasioning actual bodily harm. Therefore, the Tribunal was satisfied that the prescribed ground for cancellation applied. The Tribunal then proceeded to consider whether to exercise its discretion to cancel the visa, having regard to all relevant circumstances, including government policy and matters raised by the applicant.

In exercising its discretion, the Tribunal considered the applicant's purpose for travel and stay, his compliance with visa conditions, and the potential hardship if the visa were cancelled. While the applicant had completed some courses and intended to pursue further study, the Tribunal noted he had completed his primary course of study. The Tribunal also considered the applicant's background and future prospects in Chile, noting that the country's education and employment landscape suggested he could find suitable work. Crucially, the Tribunal took into account the violent nature of the offence, despite the applicant's claims of being law-abiding. The Tribunal found no compelling need for the applicant to remain in Australia and concluded that while some limited hardship might be suffered, it was appropriate to affirm the cancellation decision. The Tribunal affirmed the decision to cancel the applicant's Subclass 500 (Student) visa.