Nguyen (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Student (Temporary) (Class TU) visa, Subclass 500, was cancelled. The dispute centred on whether the applicant had breached condition 8202 of the Migration Regulations 1994, which mandates maintaining enrolment in a registered course at the same or a higher Australian Qualifications Framework level as the course for which the visa was granted.

The Tribunal was required to determine if the applicant had complied with condition 8202, specifically whether she had maintained full-time enrolment in a registered course that met the specified qualification level requirements. The applicant’s visa was cancelled on the grounds that she was not enrolled in a full-time registered course between 17 September 2018 and 14 January 2020. The Tribunal also had to consider whether to exercise discretion to cancel the visa, taking into account the applicant's circumstances, including her study history, personal reasons for changes in enrolment, and the best interests of her Australian citizen child.

The Tribunal found that the applicant had not maintained enrolment in a registered course for the specified period, thereby breaching condition 8202(2) of her visa, making it liable for cancellation under s.116(1)(b) of the Migration Act 1958. In exercising its discretion, the Tribunal noted the applicant’s lengthy stay in Australia since 2013, her completion of only a Diploma of Business and some English courses, and the numerous uncompleted courses. While acknowledging the applicant's reasons for ceasing studies, including pregnancy and her child's health issues, the Tribunal concluded that her prolonged period of non-enrolment, coupled with the lack of attempts to re-enrol until after receiving a notice of intention to cancel, indicated that her primary purpose of stay had shifted from study to childcare. The Tribunal also found that the applicant had the support of her extended family during this period.

The Tribunal affirmed the decision to cancel the applicant’s visa.