Naqvi (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to cancel the Subclass 500 (Student) visa of Mr Syed Muhammad Ahad Ali Naqvi, a Pakistani national. The cancellation was based on Mr Naqvi's conviction for a criminal offence. Following the cancellation, Mr Naqvi was granted a Bridging E visa with conditions preventing him from working or studying.

The primary legal issue before the Tribunal was whether the ground for cancellation, specifically under s 116(1)(g) of the Migration Act 1958 and regulation 2.43(1)(oa) of the Migration Regulations 1994, was made out, and if so, whether the visa should be cancelled in the exercise of discretion. Mr Naqvi did not dispute that a ground for cancellation existed, acknowledging his conviction for driving at a reckless speed. The Tribunal was therefore required to consider all relevant circumstances to determine if cancellation was warranted.

The Tribunal found that the ground for cancellation was established, as Mr Naqvi had been convicted of a criminal offence. However, the Tribunal then considered the discretionary aspect of cancellation. It noted that the offence was a single, out-of-character incident, with no other harm or damage caused. Mr Naqvi had pleaded guilty, demonstrated genuine insight and remorse, and had faced significant penalties including a fine, driving disqualification, and vehicle impoundment, with no further infringements. The Tribunal also took into account the substantial financial and emotional hardship Mr Naqvi would face if his visa were cancelled, including his mental health diagnosis and ongoing treatment, noting the limited availability of such treatment in his home country. The Tribunal also considered his progress in his studies, accepting that he had completed a significant portion of his Diploma of Information Technology Networking.

The Tribunal concluded that, on balance, the discretionary considerations weighed against the cancellation of Mr Naqvi's visa. Accordingly, the Tribunal set aside the delegate's decision to cancel the visa.