Khan (Migration)

The applicant, Mr Khan, sought review of the decision to cancel his Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector. The dispute concerned whether the grounds for cancellation under the Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth) were made out, and if so, whether the discretion to cancel the visa should be exercised. The matter was heard by Mr S Norman of the Administrative Appeals Tribunal.

The Tribunal was required to determine 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. This regulation is a ground for cancellation under section 116(1)(g) of the Migration Act. The Tribunal also had to consider whether, having found a ground for cancellation, the discretion to cancel the visa should be exercised, taking into account all relevant circumstances.

The Tribunal found that the applicant had been convicted of two separate offences of driving a motor vehicle during a disqualification period, for which he was sentenced to terms of imprisonment. These convictions satisfied the ground for cancellation under regulation 2.43(1)(oa). In considering the exercise of discretion, the Tribunal acknowledged the applicant's stated intention to complete his studies and his family's financial and emotional investment. However, the Tribunal gave significant weight to the fact that the applicant committed similar offences on two separate occasions, indicating a reckless indifference to Australian laws. The Tribunal concluded that, despite the potential disappointment to the applicant and his family, the seriousness of the repeated offences warranted the cancellation of the visa.

The Tribunal affirmed the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.