Nguyen (Migration)

This matter concerned an appeal by an applicant against the decision to cancel their Subclass 500 (Student) visa. The cancellation was based on the applicant having been convicted of a criminal offence. The Tribunal was required to consider whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The primary legal issue before the Tribunal was whether the applicant had been convicted of a criminal offence as contemplated by regulation 2.43(1)(oa) of the Migration Regulations 1994, which would engage section 116(1)(g) of the Migration Act 1958. If this ground was established, the Tribunal then had to determine whether, in the exercise of its discretion, the visa cancellation should be affirmed, having regard to all relevant circumstances.

The Tribunal found that the applicant had been convicted of an offence against a law of New South Wales, specifically being found on/entering/leaving drug premises, for which a sentence of imprisonment was initially imposed and later varied to a conditional release order. Despite submissions that the magistrate erred in recording a conviction, the Tribunal noted that the conviction had been confirmed on appeal and therefore the requisite ground for cancellation was satisfied. In considering the exercise of discretion, the Tribunal had regard to the applicant's future study intentions, mental health issues, and financial hardship, as well as the circumstances of the offence and the applicant's behaviour. Ultimately, the Tribunal concluded that the circumstances as a whole warranted the affirmation of the visa cancellation.