Sekhon (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Subclass 573 Higher Education Sector visa was cancelled by the Minister. The dispute arose from the applicant's criminal convictions, including common assault involving physical violence against his wife and multiple driving offences. The applicant sought review of the visa cancellation decision.

The Tribunal was required to determine whether the grounds for visa cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) were established, and if so, whether the discretion to cancel the visa should be exercised. The prescribed ground for cancellation relevant to this case was found in regulation 2.43(oa) of the Migration Regulations 1994, which pertains to criminal convictions.

The Tribunal found that the applicant's convictions for common assault and several driving offences, including mid-range drink driving, satisfied the ground for cancellation under section 116(1)(g). While this ground did not mandate cancellation, the Tribunal then considered whether to exercise its discretion to cancel the visa. The applicant presented explanations for his conduct, including marital breakdown, alleged blackmail by his wife, and stress leading to excessive drinking and subsequent offences. However, the Tribunal considered these explanations in light of the seriousness of the offences, particularly the common assault, and the pattern of offending over time.

Ultimately, the Tribunal concluded that the circumstances as a whole warranted the cancellation of the applicant's visa. The Tribunal affirmed the delegate's decision to cancel the applicant's Subclass 573 Higher Education Sector visa.