Dao (Migration)

The Administrative Appeals Tribunal considered the case of Ms. Dao, a Vietnamese national whose Student (Temporary) (Class TU) visa, subclass 573 Higher Education Sector, was cancelled. The dispute centred on whether Ms. Dao had breached condition 8202 of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a registered course and maintain satisfactory course progress and attendance.

The primary legal issue before the Tribunal was to determine if Ms. Dao had complied with condition 8202 of her visa. Specifically, the Tribunal had to ascertain whether she remained enrolled in a registered course of study throughout her time in Australia, as required by regulation 8202(2). If a breach of this condition was established, the Tribunal then had to consider whether to exercise its discretion to affirm the cancellation of her visa under section 116(1) of the Migration Act 1958.

The Tribunal found that Ms. Dao had not complied with condition 8202(2) because she was not enrolled in a registered course of study. While she initially arrived to study accounting, she failed to complete her English for Academic Purposes course and subsequently enrolled in vocational courses, including a Certificate III in EAL, which she completed, but did not commence a Certificate IV in Business. Ms. Dao admitted to struggling with cultural and social differences, leading to difficulties in attending classes, and acknowledged making a mistake by not attending. She did not provide evidence of seeking advice on deferment or contacting relevant authorities about her difficulties. The Tribunal considered these circumstances, along with the applicant's stated desire to remain in Australia, but ultimately affirmed the decision to cancel her visa.