NGUYEN (Migration)

This matter concerned an appeal by a student visa holder against the cancellation of his visa. The applicant's visa was cancelled by the Department on the basis that he had breached condition 8202 of the Migration Regulations 1994 by failing to be enrolled in a registered course of education since 23 June 2016. The applicant sought review of this decision before the Tribunal, and on 1 April 2019, he advised the Tribunal that he did not wish to give oral evidence and consented to the Tribunal making a decision based on the information before it.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of his student visa, specifically the requirement to be enrolled in a registered course. If a breach was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa under section 116(1) of the Migration Act 1958. The Tribunal was required to assess the evidence presented, including the applicant's stated purpose for travel, the extent of his compliance with visa conditions, the potential hardship caused by cancellation, and the circumstances surrounding the alleged breach.

The Tribunal found that the applicant had indeed breached condition 8202(2) as his education records indicated he had not been enrolled in a registered course since 23 June 2016, and he had not provided evidence to the contrary. In considering the discretion to cancel the visa, the Tribunal noted that while the applicant's initial purpose was study, he had ceased studying and there was no indication of a compelling need to remain in Australia. Although the applicant had complied with other visa conditions, the Tribunal found no evidence of hardship that would be caused by the cancellation, nor did the limited information provided regarding his alleged medical condition favour revocation. The Tribunal concluded that the applicant had not provided any explanation for ceasing his enrolment or any reason for revocation.

Accordingly, the Tribunal affirmed the delegate's decision to cancel the applicant's visa.