Gonchigsuren (Migration)

This matter concerned an appeal by Mr Gonchigsuren against the cancellation of his Student (Temporary) (Class TU) visa, Subclass 500. The cancellation was based on the ground that Mr Gonchigsuren had been convicted of an offence, specifically common assault and contravening an apprehended violence order. The Administrative Appeals Tribunal was required to consider whether the discretion to cancel the visa should be exercised.

The Tribunal was tasked with determining whether the ground for cancellation under s 116(1)(g) of the Migration Act 1958 (Cth) existed and, if so, whether to exercise its discretion to cancel the visa. This involved assessing the applicant's original purpose for being in Australia, his current circumstances, the extent of his compliance with visa conditions, and the potential hardship that cancellation might cause. The Tribunal also considered the applicant's submissions regarding his desire to study in Australia, his relationship with his estranged wife, and his plans for his daughter.

In its reasoning, the Tribunal found that the ground for cancellation was established due to the applicant's criminal convictions. However, the cancellation was not mandatory. The Tribunal then considered the exercise of discretion, noting that the applicant's original purpose of supporting his wife's studies was no longer relevant due to their estrangement. While the applicant expressed a desire to remain in Australia to study and pursue business opportunities, the Tribunal was not satisfied that he had demonstrated a compelling need to do so, particularly as he conceded he could pursue business in Mongolia without Australian qualifications and had failed some subjects in his English course. The Tribunal also noted that his daughter had no particular problems in Mongolia and that bringing her to Australia would be a difficult process.

Ultimately, the Tribunal affirmed the delegate's decision to cancel the applicant's visa. The Tribunal concluded that neither the applicant's nor his daughter's needs were substantially advanced by his continued stay in Australia.