Luu (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector), held by the applicant, a citizen of Vietnam. The dispute arose because the applicant was not enrolled in a registered course, which constituted a breach of condition 8202 of the Migration Regulations 1994.

The Tribunal was required to determine whether the applicant had breached condition 8202 of the Migration Regulations 1994, specifically subclause (2) which mandates enrolment in a registered course. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa under section 116(1) of the Act, as the ground for cancellation did not mandate a mandatory cancellation.

The Tribunal found that the applicant had indeed failed to comply with condition 8202(2) by not being enrolled in a registered course for a period of nine months. However, in exercising its discretion regarding cancellation, the Tribunal had regard to the applicant's circumstances. It accepted that the applicant's initial purpose for being in Australia was to study, and that she had made efforts to study, completing 11 months of continuous study despite initial difficulties and a change of course. Crucially, the Tribunal accepted that the applicant's non-compliance was due to family issues in Vietnam, specifically her parents' divorce, which required her return home. The Tribunal also noted the applicant's stated desire to resume her studies and make a positive contribution to Australia.

Considering the totality of the circumstances, including the applicant's commitment to study, the reasons for her non-compliance being beyond her control, and her expressed intention to continue her education, the Tribunal concluded that the visa should not be cancelled. Accordingly, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it.