Nguyen (Migration)

This matter concerned an application to review the cancellation of the applicant's Subclass 500 (Student) visa. The applicant had enrolled in a foundation course at Swinburn University following completion of secondary school, with the intention of pursuing a Bachelor of Design. However, the applicant ceased enrolment and was not recorded as being enrolled in a full-time registered course from 16 November 2021. The Department subsequently cancelled the applicant's visa on 15 February 2023, after the applicant failed to respond to a notice of intention to cancel.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth), which requires a student visa holder to be enrolled in a full-time registered course. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa. The applicant conceded that he had not been enrolled in a full-time registered course for a significant period, thus failing to comply with condition 8202(2)(a).

In considering the exercise of discretion, the Tribunal had regard to the applicant's original intention to study in Australia, his plans to re-commence tertiary studies, and the fact that he had paid an initial fee of $6,000 for a new course, indicating he would suffer financial hardship if the visa were cancelled. Crucially, the Tribunal noted that the applicant's failure to maintain enrolment arose from circumstances beyond his control, including isolation due to COVID-19 restrictions, loss of motivation, and relationship issues compounded by the pandemic's impact on accessing counselling. The Tribunal also acknowledged the applicant's compliance with other visa conditions.

Having weighed all the circumstances, the Tribunal concluded that the visa should not be cancelled. The decision under review was set aside, and a substituted decision was made not to cancel the applicant's Subclass 500 (Student) visa.