Ngo (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Subclass 573 Higher Education Sector visa was subject to cancellation. The dispute arose because the applicant was alleged to have breached condition 8202 of the Migration Regulations 1994 by not being enrolled in a registered course.

The Tribunal was required to determine whether the applicant had breached condition 8202 of the Migration Regulations 1994, which mandates that a student visa holder must be enrolled in a registered course. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the applicant's visa, taking into account all relevant circumstances.

The Tribunal found that the applicant had indeed breached condition 8202(2) by not being enrolled in a registered course for approximately 13.5 months. However, in exercising its discretion regarding cancellation, the Tribunal accepted the applicant's explanations for this non-compliance. These explanations included suffering from depression between the cancellation of his last enrolment and October 2018, and temporary financial difficulties his mother experienced around October 2018, which prevented him from re-enrolling. The Tribunal also gave weight to the applicant's stated purpose of undertaking business studies in Australia to obtain a Bachelor of Business and return to Vietnam to work in his mother's business, finding that this purpose had not been abandoned.

Consequently, the Tribunal concluded that the circumstances as a whole warranted setting aside the decision to cancel the applicant's visa. The Tribunal substituted a decision not to cancel the visa.