Wong (Migration)

The Administrative Appeals Tribunal considered the case of Ms. Wong, a holder of a Subclass 500 (Student) visa, whose visa had been cancelled by a delegate of the Minister. The cancellation was based on the applicant's alleged failure to comply with condition 8202 of the Migration Regulations 1994, specifically by not being enrolled in a full-time registered course between 28 April 2021 and 17 June 2022.

The primary legal issue before the Tribunal was whether Ms. Wong had breached condition 8202(2)(a) of her visa, which requires a student visa holder to be enrolled in a full-time registered course. If a breach was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to various factors including government policy and the applicant's personal circumstances.

The Tribunal found that Ms. Wong had indeed not been enrolled in a full-time registered course during the specified period, thus establishing a ground for cancellation under section 116(1)(b) of the Migration Act 1958. However, in considering the exercise of discretion, the Tribunal took into account extensive evidence provided by Ms. Wong detailing her significant mental health challenges, including borderline personality disorder and bipolar disorder, which were exacerbated by the COVID-19 pandemic and its associated lockdowns. The Tribunal noted her history of treatment, her close family ties, and her subsequent re-enrolment in a Diploma of Visual Art and an Advanced Diploma of Visual Art, commencing on 20 June 2022.

Ultimately, the Tribunal concluded that, in light of the compelling personal circumstances and the applicant's efforts to resume her studies and continue her treatment in Australia, the decision to cancel her visa should be set aside. The Tribunal substituted a decision not to cancel Ms. Wong's Subclass 500 (Student) visa.