Do (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 573 Higher Education Sector visa held by the applicant, referred to as "Do". The dispute centred on whether the applicant had breached condition 8202 of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a registered course. The applicant did not attend the Tribunal hearing, and the decision to cancel the visa was based on the evidence provided to the Department of Home Affairs in response to a Notice of Intention to Consider Cancellation.

The primary legal issue before the Tribunal was to determine if the applicant had complied with condition 8202 of her visa. Specifically, the Tribunal had to ascertain whether the applicant was enrolled in a registered course between 14 February 2017 and 28 September 2017, as alleged by the Department. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal found that the applicant had indeed breached condition 8202(2) as she was not enrolled in a registered course during the specified period. However, in considering the exercise of its discretion to cancel the visa, the Tribunal had regard to documentary evidence provided by the applicant. This evidence included statements from the applicant and her father, an offer of enrolment from an educational institution, confirmations of enrolment for subsequent courses, and a discharge form for her father who had been hospitalised in Vietnam for tuberculosis. The Tribunal accepted the applicant's stated purpose for being in Australia was to study and that her continued presence was influenced by her father's serious illness, despite her personal wishes to return to Vietnam.

Weighing all the circumstances, the Tribunal concluded that the applicant's visa should not be cancelled. The decision under review was set aside, and a substituted decision was made not to cancel the applicant's visa.