Nangole (Migration)

This matter concerned an application by a student visa holder, Nangole, to review the decision to cancel his Subclass 500 (Student) visa. The cancellation was based on criminal convictions for driving offences, including driving with excess blood alcohol, failing to comply with an Alcotest direction, and driving without due care. The applicant had been fined for these offences and disqualified from holding a driver's licence for 12 months. The review was heard by the Administrative Appeals Tribunal.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) was made out, and if so, whether the discretion to cancel the visa should be exercised. The relevant prescribed ground for cancellation was that the visa holder had been convicted of an offence against the law of the Commonwealth, a State, or Territory, as set out in regulation 2.43(1)(oa) of the Migration Regulations 1994 (Cth).

The Tribunal found that the ground for cancellation was established, as the applicant had been convicted of the specified offences. However, as the ground did not mandate cancellation under section 116(3), the Tribunal then considered the exercise of discretion. In doing so, it had regard to the circumstances of the offences, including the applicant's age, lack of prior convictions, remorse, guilty plea, and the reduced sentence. The Tribunal also considered the applicant's positive study record, his progress towards completing his course, his employment in a sector with demonstrable need, and the hardship that cancellation would cause. The applicant's supporting statements and character references were also taken into account.

Ultimately, the Tribunal concluded that, considering all the circumstances, the visa should not be cancelled. The decision under review was set aside, and a substituted decision was made not to cancel the applicant's Subclass 500 (Student) visa.