Nguyen (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Subclass 573 Higher Education Sector visa was cancelled. The dispute arose because the applicant was alleged to have breached condition 8202 of the Migration Regulations 1994 by ceasing to be enrolled in a registered course of study. The Tribunal was tasked with determining whether the applicant had indeed breached this condition and, if so, whether the discretion to cancel the visa should be exercised.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202, which requires a student visa holder to be enrolled in a registered course and to maintain satisfactory course progress and attendance. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to the circumstances of the case and relevant departmental guidelines.

The Tribunal found that the applicant had not been enrolled in a registered course between August 2016 and April 2017, thus breaching condition 8202(2). However, in considering the exercise of discretion, the Tribunal took into account the applicant's history of academic performance, his initial genuine intention to study in Australia, and significant evidence of a severe depressive disorder that impacted his studies and well-being. The Tribunal noted the applicant's subsequent re-enrolment in a Master's program and ongoing treatment for his mental health condition.

On balance, 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 visa.