Mongar (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Subclass 572 (Vocational Education and Training Sector) student visa was subject to cancellation. The dispute arose because the applicant had not been enrolled in a registered course for approximately ten months, which constituted a breach of visa condition 8202.

The Tribunal was required to determine whether the applicant had breached condition 8202 of the Migration Regulations 1994, specifically by failing to remain enrolled in a registered course. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the applicant's visa, having regard to the circumstances presented.

The Tribunal found that the applicant had indeed breached condition 8202(2)(a) by ceasing to be enrolled in a registered course from 31 May 2017. However, in considering the exercise of discretion regarding cancellation, the Tribunal took into account significant personal circumstances. These included a serious car accident in July 2016 and a violent robbery in October 2016, which resulted in physical injuries and subsequent mental health issues such as stress, anxiety, and depression. The Tribunal accepted that these events led to the applicant withdrawing from his studies and experiencing difficulties in resuming them. Despite the breach, the Tribunal concluded that the applicant had a genuine intention to study and was genuinely remorseful for breaching his visa condition.

Consequently, the Tribunal set aside the delegate's decision to cancel the applicant's visa and substituted a decision not to cancel the visa.