1917208 (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the Subclass 573 (Higher Education Sector) student visa of the applicant. The dispute arose because the applicant had ceased enrolment in a registered course, which constituted a breach of condition 8202 of the Migration Regulations 1994. The Tribunal was required to determine whether the applicant had breached this condition and, if so, whether to exercise its discretion to cancel the visa.

The Tribunal found that the applicant had indeed breached condition 8202(2) of the Migration Regulations 1994, as she had not been enrolled in a registered course since 15 February 2018. Despite this finding of non-compliance, the Tribunal then considered whether to exercise its discretion to cancel the visa. In doing so, it had regard to the applicant's compelling reasons for coming to Australia to gain qualifications to assist her father's business, her subsequent marriage and the birth of a child, her husband's protection visa application, and the potential hardship to her child and family unit if she were to return to Vietnam. The Tribunal also noted the applicant's expressed loyalty to both her family in Vietnam and her husband and child in Australia.

Applying these considerations, the Tribunal concluded that the circumstances as a whole warranted setting aside the decision to cancel the applicant's visa. The Tribunal substituted a decision not to cancel the visa.