Nguyen (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Student (Temporary) (Class TU) visa. The applicant, Mr. Nguyen, had been granted the visa to study for a Bachelor of Business degree. However, his enrolment was cancelled by his education provider due to non-commencement of studies. Subsequently, he obtained a new enrolment in vocational courses, Certificates III and IV in Commercial Cookery and a Diploma of Hospitality Management. The Administrative Appeals Tribunal was required to determine whether Mr. Nguyen had breached condition 8202 of the Migration Regulations 1994 and, if so, whether the decision to cancel his visa should be affirmed.

The primary legal issue before the Tribunal was whether Mr. Nguyen had complied with condition 8202(2)(b) of the Migration Regulations, which mandates that a student visa holder must maintain enrolment in a registered course that, upon completion, will provide a qualification at the same or a higher Australian Qualifications Framework (AQF) level than the course for which the visa was granted. The Tribunal also had to consider whether, having found a breach, it should exercise its discretion to cancel the visa.

The Tribunal found that Mr. Nguyen had not complied with condition 8202(2)(b) because his subsequent enrolment in vocational courses did not lead to a qualification at the same or a higher AQF level than the Bachelor of Business degree for which his visa was originally granted. While the Tribunal acknowledged the applicant's submission that he was assured the vocational course provided a pathway to Bachelor's level study, it noted the lack of independent evidence for this assurance. Despite finding a substantial breach of the visa condition, the Tribunal considered factors favouring the applicant, including his stated intention to pursue a Bachelor's level course and his attempt to regularise his position by applying for a different visa. However, these factors were outweighed by the prolonged period of non-compliance.

Ultimately, the Tribunal affirmed the decision to cancel Mr. Nguyen's visa, concluding that the factors favouring cancellation outweighed those in his favour.