Oliveira Da Silva (Migration)

This matter concerned an application by Thiago Oliveira Da Silva for review of the Minister's decision to cancel his Subclass 500 (Student) visa. The dispute arose from the applicant's criminal conviction for intentionally importing tier 1 goods without approval, contrary to section 20(1)(a) of the *Crimes Act 1914* (Cth). The decision under review was made by the Administrative Appeals Tribunal (AAT), with Member David McCulloch presiding.

The primary legal issue before the Tribunal was whether the Minister's decision to cancel the applicant's visa should be upheld. This required the Tribunal to first determine if a ground for cancellation existed under section 116(1)(g) of the *Migration Act 1958* (Cth), specifically in relation to regulation 2.43(1)(oa) of the *Migration Regulations 1994* (Cth), which pertains to criminal convictions. If a ground for cancellation was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal was satisfied that the ground for cancellation existed, as the applicant had pleaded guilty and been convicted of the specified offence. However, as this ground did not mandate cancellation under section 116(3) of the Act, the Tribunal proceeded to consider the exercise of discretion. In doing so, it had regard to various factors, including those outlined in the Department's Procedures Advice Manual, such as the purpose of the visa, compelling reasons to remain, compliance with visa conditions, potential hardship to the visa holder and family members, and the circumstances of the offence. The Tribunal noted that the risk of the applicant reoffending was minimal and that his absence from Australia would cause hardship to his partner.

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