Ngo (Migration)

The applicant, a holder of a Student (Temporary) (Class TU) visa, subclass 573 (Higher Education Sector), sought review of the decision to cancel his visa. The dispute centred on whether the applicant had breached a condition of his visa, specifically condition 8202 of Schedule 8 to the Migration Regulations 1994, which requires a student visa holder to be enrolled in a registered course. The matter was heard by Senior Member Rachel Westaway of the Tribunal.

The Tribunal was required to determine two key issues: firstly, whether the applicant had complied with condition 8202 of his visa, and secondly, if a breach was found, whether the discretion to cancel the visa should be exercised. Condition 8202, as relevant, mandated enrolment in a registered course and satisfactory course progress and attendance. The applicant’s visa was cancelled on the basis that he had not been enrolled in a registered course for a period of nine months, from 14 February 2016.

The Tribunal found that the applicant had indeed failed to comply with condition 8202(2) by not being enrolled in a registered course for the specified period, a fact confirmed by the applicant. In considering the discretion to cancel the visa, the Tribunal had regard to the applicant's explanation for his non-compliance, which included a failed engagement in Vietnam, subsequent depression, and financial difficulties affecting his family's business. The applicant also provided background information regarding his family's expectations for his overseas study and his prior work experience in the building industry. Despite these personal circumstances, the Tribunal concluded that the visa should be cancelled, and therefore affirmed the delegate's decision.