Huynh (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Student (Temporary) (Class TU) visa, Subclass 573 Higher Education, held by Ms. Huynh. The dispute arose because the applicant was not enrolled in a registered course for a specific period, which constituted a breach of visa condition 8202. The delegate had decided to cancel the applicant's visa on this basis.

The Tribunal was required to determine whether the applicant had breached condition 8202 of the Migration Regulations 1994 and, if so, whether to exercise the discretion to cancel the visa. Condition 8202 mandates that a student visa holder must be enrolled in a registered course and achieve satisfactory course progress and attendance, as certified by their education provider. The applicant admitted to not being enrolled in a registered course for the period in question, thus failing to comply with condition 8202(2).

In considering the discretion to cancel the visa, the Tribunal had regard to the applicant's circumstances. The applicant provided evidence that her academic performance was adversely affected by her grandfather's serious illness in Vietnam, a situation she described as being beyond her control. The Tribunal found this explanation credible, supported by medical documentation, and considered it a proximate cause for her academic difficulties and subsequent failure to maintain enrolment. Despite the breach, the Tribunal noted the applicant's continued pursuit of studies, her successful academic progression thereafter, and her genuine intention to study in Australia. Weighing these factors, including the applicant's relative youth at the time, the Tribunal concluded that the visa should not be cancelled.

Consequently, the Tribunal set aside the delegate's decision to cancel the applicant's visa and substituted a decision not to cancel the Subclass 573 Higher Education Sector visa.