Sae Ang (Migration)

This matter concerned an application by Sae Ang (the applicant) to review a decision by the Minister to cancel his Bridging A (Class WA) visa. The applicant had been granted this visa in association with a pending application for a Student (subclass 500) visa. The cancellation was based on the applicant's criminal convictions for offences including behaving in an offensive manner in or near a public place or school, and intentionally recording and distributing an intimate image without consent. For the latter two offences, the applicant received an 18-month Community Correction Order.

The primary legal issue before the Tribunal was whether the Minister's decision to cancel the applicant's visa should be affirmed. This required the Tribunal to first determine if a ground for cancellation existed under section 116(1)(g) of the Migration Act 1958 (Cth), read with regulation 2.43(1)(oa) of the Migration Regulations 1994, and if so, whether the discretion to cancel the visa should be exercised. The Tribunal was also required to consider the applicant's submissions regarding potential hardship and his circumstances.

The Tribunal found that the ground for cancellation under section 116(1)(g) was enlivened due to the applicant's convictions. As this ground did not mandate cancellation, the Tribunal then considered whether to exercise its discretion. In doing so, it had regard to the applicant's history of study and work in Australia, his pending application for a substantive visa, and his intention to complete further studies. The Tribunal also acknowledged the applicant's need to remain in Australia to meet his legal obligations under the Community Correction Order. However, it weighed these factors against the seriousness of the offences committed, particularly those involving the recording and distribution of intimate images. The Tribunal noted the applicant's expressed hardship if forced to return to Thailand due to economic instability and political issues, and his inability to continue his studies.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's Bridging A visa. While acknowledging the applicant's compliance with visa conditions and the potential hardship, the Tribunal concluded that, on balance, the circumstances warranted the cancellation of the visa.