Wei (Migration)

This matter concerned an application for review by the applicant, Mr Wei, of the decision to cancel his Subclass 500 (Student) visa. The applicant had been convicted of offences including contravening a domestic violence order and stalking or intimidating with intent to cause fear of physical harm. The Department of Home Affairs had notified the applicant of its intention to cancel his visa, and he had responded, acknowledging the convictions and expressing remorse. The Administrative Appeals Tribunal (AAT) was required to determine whether the grounds for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The primary legal issues before the Tribunal were whether the applicant’s 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), and if so, whether the discretion to cancel the visa should be exercised in favour of the applicant. The Tribunal considered the applicant's purpose for being in Australia, his compliance with visa conditions, the degree of hardship that cancellation might cause, and the circumstances in which the grounds for cancellation arose.

The Tribunal found that the applicant’s convictions for contravening a domestic violence order and stalking or intimidating with intent to cause fear of physical harm satisfied the prescribed ground for cancellation under regulation 2.43(1)(oa). While the Tribunal acknowledged the applicant's stated intention to study in Australia and his compliance with visa conditions, it found that he had not demonstrated a compelling need to remain in Australia. The Tribunal also noted that the applicant had not provided submissions regarding his current circumstances. Despite acknowledging potential hardship, the Tribunal concluded that the visa should be cancelled.

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