Nguyen (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of Ms. Nguyen, who sought review of the delegate's decision to cancel her Student (Temporary) (Class TU) visa, subclass 573 (Higher Education Sector). The cancellation was based on Ms. Nguyen's failure to maintain enrolment in a registered course, a ground for cancellation under the *Migration Act 1958* (Cth). Ms. Nguyen contended that there were compelling reasons for the delegate to exercise discretion not to cancel her visa.

The Tribunal was required to determine whether the delegate had erred in exercising their discretion to cancel Ms. Nguyen's visa. This involved assessing the various factors presented by Ms. Nguyen as mitigating circumstances against cancellation, including her pregnancy, a previous miscarriage, the breakdown of her relationship, her current pregnancy, and her mother's illness. The Tribunal also had to consider the credibility of the evidence provided and whether Ms. Nguyen had made any attempts to contact her education provider or the Department of Home Affairs regarding her circumstances. Furthermore, the Tribunal considered Ms. Nguyen's stated intention to establish her own business in Australia.

In its reasoning, the Tribunal acknowledged the difficult personal circumstances Ms. Nguyen had experienced. However, it found that Ms. Nguyen had not provided sufficient evidence to establish that these circumstances were so compelling as to outweigh the strong public interest in maintaining the integrity of the student visa program. The Tribunal noted that Ms. Nguyen had not proactively communicated with her education provider or the Department about her enrolment issues, nor had she demonstrated a genuine intention to resume studies or comply with visa conditions. The Tribunal also found that the medical evidence, while indicating genuine health concerns, did not, in the context of the other factors, necessitate the exercise of discretion in her favour. The Tribunal ultimately affirmed the delegate's decision to cancel the visa.