Singh Poudel (Migration)

This matter concerned an appeal by Mr Singh Poudel against the cancellation of his Subclass 500 (Student) visa. Mr Poudel was a secondary applicant on his wife's visa and had been convicted of offences including actual bodily harm and common assault. The appeal was heard by the Administrative Appeals Tribunal.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) was made out, and if so, whether the discretion to cancel the visa should be exercised. The prescribed ground for cancellation relevant to this case was regulation 2.43(1)(oa) of the Migration Regulations 1994 (Cth), which applies if a visa holder has been convicted of an offence.

The Tribunal found that the ground for cancellation was established, as Mr Poudel had been convicted of assault occasioning actual bodily harm and common assault, and sentenced to a community correction order and fines. However, the Tribunal then considered the exercise of discretion regarding cancellation. It had regard to the circumstances of the offending, noting that the applicant described the incident as a "one-off, uncharacteristic incident" and that he had pleaded guilty, was undergoing mental health treatment, and had the full support of his wife, who was continuing her studies. The Tribunal concluded that, in light of these circumstances, the visa should not be cancelled. The Tribunal set aside the decision to cancel Mr Poudel's visa and substituted a decision not to cancel it.