Nguyen (Migration)

This matter concerned the review of a decision by the Minister to cancel the applicant's Subclass 500 (Student) visa. The cancellation was based on the ground that the applicant had been convicted of a criminal offence, specifically knowingly taking part in the cultivation of a large commercial quantity of cannabis. The applicant had been sentenced to two years and four months imprisonment with a non-parole period of one year and two months, and was released from custody prior to the Tribunal's hearing.

The primary legal issue before the Tribunal was whether the ground for cancellation under s 116(1)(g) of the Migration Act 1958 (Cth) and regulation 2.43(1)(oa) of the Migration Regulations 1994 was established, and if so, whether the discretion to cancel the visa should be exercised. The Tribunal was required to consider all relevant circumstances in determining whether to affirm the cancellation decision.

The Tribunal found that the ground for cancellation was established, as the applicant had agreed to his conviction and sentence for cultivating cannabis. While this ground did not mandate cancellation, the Tribunal then considered its discretion. It had regard to the applicant's poor study history, limited English skills, and the significant quantities and value of the illegal substances involved in the criminal enterprise. The Tribunal also noted the sophisticated nature of the cultivation system observed by police. Weighing these factors, the Tribunal concluded that the visa should be cancelled.

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