Lkhagvaa (Migration)

This matter concerned a review by the Administrative Appeals Tribunal of a decision to cancel the applicant's Subclass 500 (Student) visa. The applicant, who held a student visa granted in December 2019, conceded non-compliance with condition 8202 of the Migration Regulations 1994, which requires enrolment in a full-time registered course. The cancellation was based on the applicant not being enrolled in a course of study for over two years, from June 2020 until August 2022.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of his visa. If a breach was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to the circumstances of the case. The applicant argued that his non-compliance was due to difficulties with online classes during COVID-19 restrictions, his family's reduced financial capacity to support him, and travel restrictions in his home country of Mongolia.

The Tribunal found that the applicant had indeed failed to comply with condition 8202(2)(a). However, in exercising its discretion regarding cancellation, the Tribunal had regard to the compelling circumstances that mitigated the non-compliance, largely brought about by the COVID-19 pandemic. These included the applicant's struggles with online learning, inability to work, and financial hardship. While noting the extended period of non-enrolment after Mongolia's travel restrictions were lifted, the Tribunal was satisfied that the applicant had since re-enrolled, was progressing well in his studies, and had demonstrated he was a genuine student. The Tribunal concluded that cancelling the visa would cause significant financial and emotional hardship to the applicant, particularly given the delays caused by the pandemic.

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