Siape (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 500 (Student) visa. The applicant had been convicted of several driving offences, including driving with a high blood alcohol content and driving while unlicensed and disqualified. Additionally, the applicant had ceased enrolment in a course of study due to non-payment of fees, citing mental and physical health issues exacerbated by COVID-19 lockdowns. The Tribunal, constituted by Member David McCulloch, was required to determine whether the grounds for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised.

The primary legal issue before the Tribunal was whether the applicant's criminal convictions constituted a prescribed ground for visa cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) and regulation 2.43(1)(oa) of the Migration Regulations 1994 (Cth). If this ground was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to all relevant circumstances, including those outlined in the Department's Procedures Advice Manual. These circumstances encompassed the purpose of the visa, compelling reasons to remain in Australia, compliance with visa conditions, potential hardship to the applicant and family, the circumstances of the offending, and any international obligations.

The Tribunal found that the applicant's convictions for driving offences, including driving with a high blood alcohol content and driving while unlicensed and disqualified, satisfied the ground for cancellation under section 116(1)(g). While this ground did not mandate cancellation, the Tribunal proceeded to consider its discretionary power. It noted the applicant's explanation for the study cancellation, which had been accepted by the Department for the grant of the current visa. However, considering the totality of the circumstances, including the repeated driving offences and the cessation of studies, the Tribunal concluded that the visa should be cancelled.

The Tribunal affirmed the decision to cancel the applicant's Subclass 500 (Student) visa.