Khanal (Migration)

This matter concerned an application by a holder of a Subclass 500 (Student) visa to review the Minister's decision to cancel their visa. The cancellation was based on the applicant having been convicted of an offence, specifically common assault, for which they received a Community Correction Order. The applicant argued that the offence was of a low level, highlighted their family's investment in their studies, and pointed to limited academic progress as a consequence of the circumstances surrounding the offence, asserting a genuine intention to continue their studies. The decision was made by the Administrative Appeals Tribunal (Cth) (AAT).

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) was established, and if so, whether the discretion to cancel the visa should be exercised. The relevant ground for cancellation was established by regulation 2.43(1)(oa) of the Migration Regulations 1994 (Cth), which applies if a visa holder has been convicted of an offence against Commonwealth, State, or Territory law. The Tribunal also had to consider the applicant's submissions regarding their circumstances, including their family's financial commitment to their studies, their academic progress, and their genuine intention to complete their course.

The Tribunal found that the ground for cancellation was established, as the applicant had been convicted of common assault. However, this ground did not mandate cancellation under section 116(3) of the Act, allowing for the exercise of discretion. In considering this discretion, the Tribunal had regard to various factors outlined in the Department's Procedures Advice Manual, including the purpose of the visa, compelling reasons to remain in Australia, compliance with visa conditions, potential hardship to the visa holder and family, the circumstances of the offence, and any potential breach of Australia's non-refoulement obligations. The Tribunal noted the applicant's acknowledgement of the conviction and sentence, and the details of the assault, which involved a physical altercation with McDonald's employees. Despite the established ground for cancellation, the Tribunal concluded that, considering all the circumstances, the visa should not be cancelled.

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