Wen (Migration)

This matter concerned an application by a Student (Temporary) (Class TU) visa holder, Mr Wen, to review the decision to cancel his visa. The cancellation was based on Mr Wen's conviction for an offence against Commonwealth law, specifically assault occasioning actual bodily harm (domestic violence) and contravening a prohibition or restriction in an apprehended violence order. Mr Wen had been convicted on 27 July 2018, receiving a bond to be of good behaviour for 12 months and fines. He acknowledged the convictions and agreed that grounds for cancellation existed.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(g) of the Migration Act 1958 (Cth) was made out, and if so, whether to exercise its discretion to cancel the visa. The relevant ground for cancellation was established by r 2.43(1)(oa) of the Migration Regulations 1994 (Cth), which applies when a visa holder has been convicted of an offence. The Tribunal found that this ground was satisfied, as Mr Wen had been convicted of the specified offences.

In considering whether to exercise its discretion to cancel the visa, the Tribunal had regard to the circumstances of the case, including matters raised by Mr Wen and government policy guidelines. While the conviction itself was serious, the Tribunal noted that the ground for cancellation did not mandate mandatory cancellation. The Tribunal considered factors such as the purpose of Mr Wen's stay, his compliance with visa conditions, the potential hardship, and the circumstances surrounding the offence. The Tribunal also considered the New South Wales Police Facts Sheet detailing the incident, which described an argument escalating to physical violence. Despite the seriousness of the offences, the Tribunal concluded that, on the whole, the visa should not be cancelled.

Consequently, the Tribunal set aside the decision to cancel Mr Wen's Subclass 500 (Student) visa and substituted a decision not to cancel it.