Pudasaini (Migration)

This matter concerned an appeal by an applicant, a citizen of Nepal, against the cancellation of his Subclass 500 (Student) visa. The cancellation was initiated by the Minister under section 116(1)(g) of the Migration Act 1958 (Cth) following the applicant's conviction for reckless driving in Western Australia. The applicant had been charged with travelling at 155 km/h in a 100 km/h zone, which resulted in a licence disqualification and a fine. The applicant had been granted the visa on 12 February 2020 and arrived in Australia shortly thereafter, enrolling in a hospitality and tourism management course.

The primary legal issues before the Tribunal were whether the ground for cancellation under section 116(1)(g) of the Act was made out, and if so, whether the Minister's discretion to cancel the visa should be exercised. The Tribunal was required to consider all relevant circumstances, including the applicant's academic progress, the impact of the COVID-19 pandemic, and any potential hardship. The Tribunal also had to assess the seriousness of the offending conduct in the context of the specific legislative framework in Western Australia, contrasting it with provisions in other jurisdictions that might allow for a conviction not to be recorded in similar circumstances.

The Tribunal found that the ground for cancellation under section 116(1)(g) was established due to the applicant's conviction for reckless driving. However, in considering whether to cancel the visa, the Tribunal weighed various factors. It noted that the applicant's academic difficulties, including failing his first semester, could be attributed to immaturity and the adjustment to studying independently, and that he had demonstrated a capacity to resume his studies. The Tribunal also considered the applicant's fear of returning to Nepal without a qualification and his emotional hardship due to being away from family. Crucially, the Tribunal found that the reckless driving offence, while serious, was at the lower end of offending, particularly when compared to potential outcomes in other Australian states where a conviction might not have been recorded. The Tribunal concluded that the factors favouring cancellation did not outweigh those against it.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 500 (Student) visa and substituted a decision that the visa should not be cancelled.