Rathod (Migration)

The Administrative Appeals Tribunal considered the case of Mr Rathod, who was the holder of a Student (Temporary) (Class TU) Subclass 500 visa. The dispute arose from the Minister's decision to cancel Mr Rathod's visa, which Mr Rathod sought to have reviewed by the Tribunal. The primary issue was whether the grounds for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) were made out, and if so, whether the discretion to cancel the visa should be exercised.

The Tribunal was required to determine if the applicant had been convicted of an offence against a law of the Commonwealth, a State, or Territory, as prescribed by regulation 2.43(1)(oa) of the Migration Regulations 1994. If this ground was established, the Tribunal then had to consider whether, in the exercise of its discretion, the applicant's visa should be cancelled, taking into account all relevant circumstances. This involved assessing the purpose of the applicant's travel and stay, any other visa condition breaches, and the degree of hardship that cancellation might cause to the applicant or his family.

The Tribunal found that the applicant had been convicted on 13 September 2017 in the Downing Centre Local Court of assault with an act of indecency, for which he received a suspended sentence. This conviction satisfied the ground for cancellation under section 116(1)(g) of the Act. In considering the exercise of discretion, the Tribunal acknowledged the applicant's remorse and his wife's belief that the actions were out of character. It also considered the wife's ongoing studies in Australia and the financial investment made, as well as the circumstances surrounding the couple's temporary separation due to family matters and the birth of their child. However, the Tribunal concluded that there remained an appreciable risk that the applicant might engage in further improper behaviour, leading it to affirm the decision to cancel the visa.