Thakur (Migration)

This case concerned the cancellation of a Subclass 500 (Student) visa held by a male citizen of India. The applicant was a secondary visa holder, his wife being the primary visa holder. The Minister had formed the view that the applicant’s visa should be cancelled under s 116(1)(g) of the Migration Act 1958 (Cth) due to his conviction for unlawful assault and wilful damage of property, which occurred on or around 24 May 2020. The applicant was sentenced to a 12-month Community Correction Order. The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The primary legal issue before the Tribunal was whether the applicant’s visa should be cancelled, considering the prescribed ground for cancellation under reg 2.43(1)(oa) of the Migration Regulations 1994 (Cth) and the discretionary power to cancel under s 116(1)(g). This involved weighing the seriousness of the offending conduct against factors favouring the retention of the visa, such as the applicant's circumstances, community ties, and potential hardship. The Tribunal also had to consider the applicant's relationship status with his wife, as this was a significant factor in his initial visa application and his submissions regarding potential hardship.

The Tribunal found that the ground for cancellation was established due to the applicant's criminal convictions. In exercising its discretion, the Tribunal gave considerable weight to the gravity of the offending, characterising it as grave and distressing, and noting the lack of acceptable reasons or meaningful responsibility taken by the applicant. The Tribunal also placed significant weight on the applicant's fabrication regarding reconciliation with his spouse, finding his claims about their relationship and his community involvement to be vague and lacking credible evidence. The Tribunal concluded that the factors favouring cancellation outweighed those favouring the visa's reinstatement, particularly given the seriousness of the offences and the diminished standing of the applicant.

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