Ngo (Migration)

This matter concerned a review by the Administrative Appeals Tribunal of the cancellation of a subclass 500 (Student) visa granted to the applicant. The applicant had been granted the visa on 13 October 2021, with an expiry date of 10 May 2023. The Department of Home Affairs had issued a Notification of Intention to Consider Cancellation (NOICC) on 15 February 2023, on the basis that the applicant had failed to comply with visa condition 8202 by not maintaining enrolment in a full-time registered course from 29 October 2021. The applicant responded to the NOICC, admitting non-compliance but providing reasons why the visa should not be cancelled.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of Schedule 8 to the Migration Regulations 1994, and if so, whether the discretion to cancel the visa should be exercised. Condition 8202, as relevant, required the applicant to be enrolled in a full-time registered course and to maintain such enrolment. The Tribunal was required to consider various factors in exercising its discretion, including the purpose of the applicant's stay, the extent of non-compliance, hardship resulting from cancellation, and the applicant's behaviour.

The Tribunal found that the applicant had not disputed his non-compliance with condition 8202(2)(a) by failing to be enrolled in a full-time registered course. The applicant had not commenced, recommenced, or completed any course of study since the visa was granted. While the applicant had applied for a subsequent student visa as a secondary applicant to reside with his de facto partner, and stated a long-term intention to study, the Tribunal noted his study history had been unsatisfactory since October 2021. Considering all circumstances, including the applicant's primary purpose of study and the lack of satisfactory engagement with his studies, the Tribunal concluded that the discretion to cancel the visa should be exercised.

The Tribunal affirmed the decision to cancel the applicant's subclass 500 visa.