Student Visa Cancellation

Pudasaini (Migration) [2022] AATA 1233

The delegate cancelled the visa under section 116(1)(g) on the basis that the applicant had been convicted of Reckless driving at a speed of 155km/h or more in a 100km/h zone with an outcome of a licence disqualification for six (6) months and a fine of $1,500. 

This conviction triggered Regulation 2.43(1)(oa) as the visa holder has been convicted of an offence against a law of the Commonwealth, a State, or Territory. 

The Tribunal is satisfied that the ground for cancellation under a prescribed ground under section 116(1)(g) exists. 

However, the Tribunal places significant weight on the evidence that establishes that the applicant was an otherwise genuine student and of good character. 

The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) Visa. 

Ajiboye (Migration) [2020] AATA 875 

The Tribunal considered an appeal against cancellation of a Subclass 500 visa under section 116(1)(g) of the Act, namely due to the reasonable suspicion that the visa has been obtained as a result of the fraudulent conduct of any person. 

The Tribunal noted that fraudulent conduct needn’t be conduct of the visa holder, nor does the visa holder need to have been aware of the conduct. 

Grounds for cancellation require reasonable suspicion of a causal nexus between the grant and the fraudulent conduct, namely, a reasonable suspicion that the visa would not have been granted but for the fraudulent conduct. 

Cancellation is discretionary and should be considered in light of extenuating circumstances. 

The member placed the ‘integrity of the immigration system’ as a primary consideration and noted that substantial compliance with visa conditions does not ameliorate this. 

Cancellation affirmed. 

While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. 

However, an element of fraud or decision by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42. 

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