Kumar (Migration)

This matter concerned an application by Mr Kumar to review the cancellation of his Subclass 457 (Temporary Work (Skilled)) visa. The visa was cancelled by the Minister on the grounds that Mr Kumar had been convicted of certain offences. Mr Kumar was the spouse of the primary visa holder, and the Tribunal noted that the relationship had ceased. The decision under review was affirmed by the Tribunal.

The legal issues before the Tribunal were whether the grounds for cancellation under section 116(1)(g) of the Migration Act 1994 were made out, and if so, whether the discretion to cancel the visa should be exercised. Specifically, the Tribunal had to determine if Mr Kumar had been convicted of an offence against a law of the Commonwealth, a State or Territory, as prescribed by regulation 2.43(oa) of the Migration Regulations 1994. If this ground was established, the Tribunal then had to consider all relevant circumstances in deciding whether to cancel the visa.

The Tribunal found that Mr Kumar had been convicted of multiple offences, including driving without due care, driving under the influence, and driving while disqualified, for which he received a sentence of imprisonment, disqualification from driving, fines, and community service. The Tribunal considered the sentencing remarks provided by Mr Kumar, which clarified the circumstances of his convictions, and disregarded a conflicting police document. While the ground for cancellation under regulation 2.43(oa) did not mandate cancellation, the Tribunal exercised its discretion to affirm the cancellation. This decision was influenced by the fact that Mr Kumar was no longer in Australia for the purpose for which the visa was granted, as he had separated from his wife, the primary visa holder.

The Tribunal affirmed the decision to cancel Mr Kumar’s Subclass 457 visa.