Lin (Migration)

The Administrative Appeals Tribunal considered the case of Mr. Lin, a holder of a Student (Temporary) (Class TU) visa, subclass 500. The dispute arose from the Department of Home Affairs' intention to cancel Mr. Lin's visa due to his non-compliance with visa condition 8202(2)(a), specifically that he had ceased to be enrolled in a registered full-time course. Mr. Lin, through his migration agent, responded to the Notice of Intention to Consider Cancellation (NOICC), acknowledging the grounds for cancellation but asserting compelling reasons beyond his control.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(b) of the Migration Act 1958 existed and, if so, whether to exercise its discretion to cancel the visa. The applicant's non-compliance stemmed from his failure to maintain enrolment in a registered course, which he attributed to a series of events including the COVID-19 pandemic's impact on online learning, his agent's failure to forward tuition fees to the education provider, and ultimately, the cancellation of his Confirmation of Enrolment (CoE) by the school due to non-payment.

The Tribunal found that the ground for cancellation under s 116(1)(b) was established, as Mr. Lin had failed to comply with his visa condition requiring continuous enrolment in a registered course. While acknowledging the significant impact of visa cancellation, the Tribunal considered the circumstances as a whole, including the applicant's explanations regarding his agent's misconduct and the challenges posed by the pandemic. However, the Tribunal ultimately concluded that the visa should be cancelled, affirming the Department's decision.