NGUYEN (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the visa of Mr. Nguyen, a holder of a Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The cancellation was based on the ground that Mr. Nguyen was not a genuine student, evidenced by his failure to maintain enrolment, unsatisfactory academic progress, and study gaps.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(fa)(i) of the Migration Act 1958 (Cth) was established, and if so, whether to exercise its discretion to cancel the visa. The applicant conceded that grounds for cancellation existed, specifically admitting to failing to make academic progress, maintain enrolment, and having study gaps.

The Tribunal found that the ground for cancellation was made out. However, it then considered whether to exercise its discretion not to cancel the visa. In doing so, the Tribunal had regard to the applicant's stated intention to study in Australia for better employment prospects, the extent of his compliance with other visa conditions (which were not in dispute), and the potential hardship that cancellation would cause. The Tribunal accepted that cancellation would cause moderate hardship, noting the applicant's past mental health issues, for which he had received beneficial treatment, and the disruption to his career path in Vietnam.

Considering all the circumstances, the Tribunal concluded that the visa should not be cancelled. Accordingly, the Tribunal set aside the decision under review and substituted a decision not to cancel Mr. Nguyen's visa.