PATHAK (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to cancel Mr Bhuwan Pathak's Subclass 500 (Student) visa under section 116 of the *Migration Act 1958* (Cth). The cancellation was based on Mr Pathak's conviction for common assault in circumstances of aggravation on 13 January 2020. Mr Pathak, a Nepalese national, had been in Australia on various student visas since 2014 and was the primary applicant for his current visa, which was granted on 10 October 2019. Following his conviction, his visa was cancelled on 28 October 2020, and he was subsequently placed in immigration detention.

The primary legal issues before the Tribunal were whether the ground for cancellation under section 116(1)(g) of the Act, read with regulation 2.43(1)(oa) of the *Migration Regulations 1994* (Cth), was established, and if so, whether the discretion to cancel the visa should be exercised. Regulation 2.43(1)(oa) prescribes that a temporary visa may be cancelled if the holder has been convicted of an offence against the law of the Commonwealth, a State, or Territory. The Tribunal was required to consider all relevant circumstances in exercising its discretion, including the applicant's reasons for wishing to remain in Australia and his compliance with visa conditions.

The Tribunal found that the ground for cancellation was established, as Mr Pathak had been convicted of a criminal offence against the law of Western Australia. The Tribunal noted that it was not its role to punish the applicant, as this was the function of the criminal courts. While acknowledging Mr Pathak's compelling reason to remain in Australia to be near his two children, the Tribunal found that this consideration was significantly diminished by its findings regarding the best interests of those children. The Tribunal also noted Mr Pathak's compliance with his visa conditions and his academic progress. However, the Tribunal ultimately affirmed the delegate's decision to cancel the visa.