Luht (Migration)

This matter concerned an appeal by an applicant against the cancellation of their Subclass 500 (Student) visa. The cancellation was based on the ground that the applicant had been convicted of an offence, specifically "Gains Benefit by Fraud" under the Criminal Code of Western Australia. The applicant had been convicted of two such offences and fined $15,000 in total.

The primary legal issue before the Tribunal was 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 made out, and if so, whether the discretion to cancel the visa should be exercised. The Tribunal was required to consider all relevant circumstances, including those raised by the applicant and outlined in the Department's Procedures Advice Manual.

The Tribunal found that the applicant's convictions for gaining benefit by fraud were established, satisfying the ground for cancellation. In exercising its discretion, the Tribunal considered the factual circumstances leading to the convictions, which involved the applicant knowingly participating in a fraudulent enterprise by selling vehicles with tampered odometers for a profit. The Tribunal noted the applicant's admission that she often received vehicles from associates with altered odometers for sale, indicating a degree of involvement and knowledge of the fraudulent nature of the transactions. While acknowledging the potential hardship, the Tribunal ultimately concluded that the circumstances warranted the cancellation of the visa.

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