Pauvert (Migration)

This matter concerned the review of a decision to cancel the Temporary Activity (Class GG) visa, Subclass 408, held by the applicant. The applicant had been convicted of offences against the law of a State of Australia, which constituted a prescribed ground for cancellation under s 116(1)(g) of the Migration Act 1958 (Cth) and reg 2.43(oa) of the Migration Regulations 1994. The applicant conceded that the ground for cancellation existed and had paid the imposed fine and served a driving suspension.

The legal issues before the Tribunal were whether the ground for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised. The Tribunal was required to consider all relevant circumstances, including government policy, in determining whether to cancel the visa, as the ground for cancellation did not mandate its cancellation.

The Tribunal found that the ground for cancellation was made out, as the applicant, a holder of a temporary visa, had been convicted of offences against State law. However, in exercising its discretion, the Tribunal had regard to various factors. These included the applicant's genuine intention to work in Australia consistent with his visa purpose, the potential for cancellation to impede future genuine visa pathways, and the applicant's remorse and cooperation with the Department and Tribunal. The Tribunal also considered the applicant's compliance with other visa conditions, noting that while his employment was suspended due to the cancellation, there was no evidence of non-compliance with other conditions.

Ultimately, the Tribunal concluded that, on balance, there were compelling reasons not to cancel the applicant's visa. The decision under review was set aside, and a substituted decision was made not to cancel the applicant's Subclass 408 visa.