2305230 (Migration)

This matter concerned an application to review the cancellation of a Student (Class TU) visa, Subclass 500. The applicant, a citizen of Vietnam, had been granted the visa to undertake study in Australia. The delegate of the Minister issued a Notice of Intention to Consider Cancellation on the grounds that the applicant's records indicated she had not been enrolled in a course of study since December 2021, potentially breaching visa condition 8202. The applicant provided a submission in response, detailing personal circumstances including difficulties with her initial Bachelor's degree, a subsequent English language course, a history of domestic violence leading to mental and physical health issues, and new enrolments in vocational courses. The Administrative Appeals Tribunal considered the applicant's submissions and the evidence presented.

The primary legal issue before the Tribunal was whether the applicant had complied with the conditions of her student visa, specifically condition 8202, which requires a holder to be enrolled in a full-time registered course and maintain enrolment in a course that leads to a qualification at the same or higher level than the one for which the visa was granted, unless specific exceptions apply. The Tribunal also had to consider whether, having found a breach of condition 8202, it should exercise its discretion to cancel the visa.

The Tribunal found that the applicant had not complied with condition 8202(2)(a) of the Migration Regulations 1994. While acknowledging the applicant's stated intention to study and her personal difficulties, including an abusive relationship and subsequent health issues, the Tribunal noted that her enrolment history did not align with the requirements of her visa. The Tribunal observed that the applicant's stated intention to pursue qualifications in a different field and at lower levels than her original course, and her focus on employment in Australia, did not satisfy the requirement to maintain enrolment in a course that would lead to a qualification at the same or higher level. Furthermore, the Tribunal found that the applicant's submissions regarding her future aspirations in Vietnam to promote the rights of vulnerable people were not supported by evidence, and her focus had shifted to building a career in a specific industry in Australia.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's visa.