LE (Migration)

The Administrative Appeals Tribunal considered the case of LE, a Vietnamese citizen holding a Student (Temporary) (Class TU) visa, subclass 573. The dispute arose when the Department of Home Affairs considered cancelling LE's visa due to a suspected breach of visa condition 8202, which requires a student visa holder to be enrolled in a registered course. LE had been issued a Notice of Intention to Consider Cancellation (NOICC) after PRISMS data indicated she had not been enrolled in a registered course since March 2017. Following a response from LE, the delegate decided to cancel her visa, a decision LE sought to have reviewed by the Tribunal.

The primary legal issue before the Tribunal was whether LE had complied with condition 8202 of Schedule 8 to the Migration Regulations 1994. Specifically, the Tribunal had to determine if LE was enrolled in a registered course as required by condition 8202(2)(a). If a breach of this condition was found, the Tribunal then had to consider whether to exercise its discretion under section 116(1) of the Migration Act 1958 to cancel the visa, or to affirm the delegate's decision.

The Tribunal found that LE had not been enrolled in a registered course since 16 March 2017, constituting a breach of condition 8202(2)(a). The Tribunal noted that the purpose of a student visa is to study in Australia, and LE's prolonged non-enrolment indicated she was not pursuing this purpose. While acknowledging potential financial difficulties and the consequences of unlawful status and removal, the Tribunal found no extenuating or compassionate circumstances, nor any negative impact on family members or Australia's international obligations that would warrant exercising its discretion not to cancel the visa.

Consequently, the Tribunal was satisfied that the visa should be cancelled and affirmed the delegate's decision to cancel LE's Class TU visa.