NGUYEN (Migration)

This matter concerned an application by Mr Nguyen for review of the Minister's decision to cancel his Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The applicant had been granted the visa on 19 September 2013, with an expiry date of 30 August 2017. The Tribunal, constituted by Mr S Norman, was required to determine whether the decision to cancel the applicant's visa should be affirmed.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was made out. This required the Tribunal to consider whether the applicant had failed to comply with a condition of his visa, specifically condition 8516, which mandates that a visa holder must continue to satisfy the primary or secondary criteria for the grant of the visa. The Tribunal also had to consider whether, having found a ground for cancellation, the discretion to cancel the visa should be exercised in the applicant's circumstances.

The Tribunal found that the applicant had breached condition 8516 of his visa. Information from the Provider Registration and International Student Management System (PRISMS) indicated that the applicant had not been enrolled in a registered course of study, specifically a Bachelor's or Master's degree, which was a principal cause for the grant of his Subclass 573 visa. This failure to maintain enrolment, stemming from non-commencement of studies, meant he no longer satisfied the primary criteria for his visa. Although the cancellation ground did not mandate cancellation under section 116(3), the Tribunal proceeded to consider its discretion. In doing so, it acknowledged the applicant's initial intention to study in Australia and the potential limited financial or other hardship to him and his family if the visa were cancelled. However, the Tribunal weighed these factors against the clear breach of a visa condition and the consequences of cancellation, including potential limitations on future visa applications under section 48 of the Act and Schedule 4013 of the Migration Regulations 1994.

After considering all the circumstances, the Tribunal concluded that the visa should be cancelled. Accordingly, the Tribunal affirmed the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.