1822546 (Migration)

This matter concerned an application for review of the cancellation of a Subclass 500 (Student) visa. The applicant had been enrolled in a registered course of study but her confirmation of enrolment was cancelled in September 2017, and she remained unenrolled in a full-time registered course until her visa was cancelled on 30 July 2018. The applicant acknowledged that the grounds for cancellation existed.

The primary legal issue before the Tribunal was whether to exercise its discretion to cancel the applicant's visa, notwithstanding the existence of a ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth). This section permits cancellation if the holder fails to comply with a visa condition, in this case, condition 8202 of the Migration Regulations 1994 which requires enrolment in a registered course. The Tribunal was required to consider all relevant circumstances, including matters raised by the applicant and relevant departmental policy.

The Tribunal considered the applicant's stated intention to complete her Bachelor of [Subject 1] in Australia and then return to Vietnam for employment. However, it found that this did not constitute a compelling need to remain in Australia, particularly as tertiary studies were available in her home country. The Tribunal also noted the applicant's lengthy onshore stay and expressed concerns about her true intentions. While acknowledging the applicant's personal difficulties, including family illness and emotional struggles, the Tribunal concluded that these circumstances, when weighed against the failure to comply with visa conditions and the temporary nature of student visas, did not outweigh the reasons for cancellation.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's Subclass 500 (Student) visa.