Mohammad (Migration)

This matter concerned the review of a decision by the Minister to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The applicant, who had been in Australia since 2008 on various student visas and subsequently as a secondary applicant on his wife's Subclass 457 visa, was employed part-time as a cleaner. The Minister's decision to cancel the visa was based on the applicant's conviction for an offence against a state law, as provided for under section 116(1)(g) of the Migration Act 1958 (Cth) and regulation 2.43(1)(oa) of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the ground for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised in the applicant's circumstances. The Tribunal was required to determine if the applicant had been convicted of an offence against a law of the Commonwealth, State, or Territory, which would trigger the potential for visa cancellation. Following the establishment of this ground, the Tribunal had to consider all relevant circumstances, including those raised by the applicant, to decide whether to affirm or set aside the cancellation decision.

The Tribunal found that the applicant had indeed been convicted of an offence against a state law, thereby satisfying the ground for cancellation under section 116(1)(g) and regulation 2.43(1)(oa). While this ground did not mandate cancellation, the Tribunal proceeded to consider the exercise of discretion. It weighed factors such as the applicant's purpose for being in Australia, his compliance with visa conditions, and the significant hardship that cancellation would cause. This hardship included the potential loss of financial and emotional support for his family in India, substantial debts incurred for his wife's education, and difficulties in finding employment and continuing his studies in India. Despite acknowledging the applicant's compliance with visa conditions and his stated intention to study and establish a business, the Tribunal concluded that, on balance, the correct and preferable decision was to affirm the cancellation of the visa.