Kamboj (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 500 (Student) visa. The applicant had been convicted of offences including stalking and intimidation with intent to cause fear of physical harm, and possession of child abuse material. The convictions arose from conduct involving a 12-year-old victim. The Tribunal, constituted by Member David McCulloch, was required to determine whether the grounds for cancellation existed and, if so, whether the visa should be cancelled in the exercise of discretion.

The primary legal issue was whether the applicant's criminal convictions constituted a prescribed ground for visa cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) and regulation 2.43(1)(oa) of the Migration Regulations 1994. If this ground was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to all relevant circumstances.

The Tribunal found that the applicant had been convicted of the specified offences, acknowledging that the ground for cancellation under section 116(1)(g) was made out. While this ground did not mandate cancellation, the Tribunal proceeded to consider its discretionary power. In doing so, it had regard to the circumstances of the case, including the nature of the offences involving a minor, the applicant's delay in returning to studies, and financial hardship. The Tribunal also considered the applicant's submission regarding a reduced custodial sentence following an appeal and the fact that professional mental health care had not been pursued. The Tribunal concluded that, on the totality of the circumstances, the visa should be cancelled.

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