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 not enrolled in a registered course within the higher education sector, a condition of their visa, and had not attended a hearing concerning the cancellation. The Tribunal was tasked with determining whether the cancellation decision should be affirmed.

The legal issues before the Tribunal included whether the applicant had failed to comply with a condition of their visa, specifically condition 8516, which requires a visa holder to continue to satisfy the primary or secondary criteria for the grant of their visa. This condition, in the context of a Subclass 573 visa, necessitates maintaining enrolment in a principal course of study within the higher education sector, as defined by relevant legislative instruments. The Tribunal also had to consider whether, having found a ground for cancellation, the discretion to cancel the visa should be exercised.

The Tribunal reasoned that the applicant had breached condition 8516 because records indicated they were no longer enrolled in a Bachelor of Information Technology or any other course of study specified for the higher education sector since August 2016. While the applicant had attempted to enrol in a Vocational Education and Training (VET) sector course, the Tribunal found this did not satisfy the requirements for their Subclass 573 visa. The Tribunal acknowledged this attempt but considered the breach of the visa condition significant, particularly given its duration of 11 months at the time of the delegate's decision. Although the applicant did not provide specific details of hardship, the Tribunal noted that potential hardship was outweighed by the breach of visa conditions.

Ultimately, the Tribunal concluded that the ground for cancellation under s 116(1)(b) of the Migration Act 1958 was established. Exercising its discretion, the Tribunal affirmed the decision to cancel the applicant's Subclass 573 Higher Education Sector visa.