Dinh (Migration)

This matter concerned an appeal by Ms Dinh against the refusal of her application for a New Zealand Citizen Family Relationship (Temporary) (Class UP) visa (Subclass 461). The primary issue was whether Ms Dinh had substantially complied with the conditions of her previous substantive visa, a Subclass 573 Student visa, which required her to remain enrolled in a registered course of study. Her Student visa had been cancelled because she ceased enrolment in August 2016 and remained in Australia without being enrolled. The delegate refused the Subclass 461 visa on the basis that Ms Dinh had not substantially complied with the conditions of her previous visa and therefore did not satisfy clause 461.225 of the Migration Regulations 1994.

The legal issues before the Tribunal were whether Ms Dinh had substantially complied with condition 8202 of her Student visa, and consequently, whether she met the criteria for the Subclass 461 visa under clause 461.225 of the Regulations. The Tribunal was required to consider Ms Dinh's claims of receiving misleading advice from migration agents, the cessation of financial support from her parents, and her mental health issues, in determining whether her failure to maintain enrolment was beyond her control.

The Tribunal reasoned that while Ms Dinh had provided some evidence regarding her circumstances, including statements about misleading advice, financial difficulties, and mental health concerns, she had not provided sufficient information to demonstrate substantial compliance with her previous visa conditions. Crucially, the Tribunal noted that Ms Dinh had failed to respond to an invitation to comment on adverse information, specifically that her relationship with her spouse had ceased, which was relevant to her overall circumstances. The Tribunal found that the applicant had not availed herself of opportunities to provide further information or explanations to the Tribunal, and the information provided did not establish that her failure to remain enrolled was beyond her control. The Tribunal concluded that the delegate's decision correctly identified the lapse in enrolment and that Ms Dinh had not satisfied clause 461.225 of the Regulations.

The Tribunal affirmed the decision not to grant Ms Dinh the Subclass 461 visa.