Dinh (Migration)

The Administrative Appeals Tribunal considered the case of an applicant, a national of Vietnam, whose Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector), was cancelled. 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 registered course of study. The applicant arrived in Australia in March 2016 and her visa was cancelled on the grounds that she had not been enrolled in a registered course since 14 September 2017.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of her visa. This condition requires a student visa holder to be enrolled in a registered course and to maintain satisfactory course progress and attendance. The Tribunal was also required to consider whether, having found a breach, the discretion to cancel the visa should be exercised.

The Tribunal found that the applicant had indeed breached condition 8202(2)(a) by ceasing to be enrolled in a registered course, a requirement that does not permit a visa holder to cease enrolment. The applicant's explanation for this was her family's financial difficulties following her father's job loss in 2017, which prevented her from paying course fees. While the Tribunal accepted that the family experienced financial hardship, it was not satisfied that the breach occurred in circumstances beyond the applicant's control, nor that there were extenuating or compassionate circumstances. The Tribunal considered the breach significant, noting the applicant's failure to maintain enrolment for approximately ten months and that this undermined the purpose of her student visa.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's visa. It concluded that, on balance and considering all circumstances, the cancellation was warranted, despite acknowledging that visa cancellation is a significant matter.