Nguyen (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Student (Temporary) (Class TU) visa, subclass 573 (Higher Education Sector), was cancelled. The dispute centred on whether the applicant had breached a condition of her visa, leading to the cancellation decision by the Department. The applicant sought review of this cancellation decision.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202 of Schedule 8 to the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant was enrolled in a registered course as required by condition 8202(2)(a). If a breach was found, 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 found that the applicant had not been enrolled in a registered course since 13 April 2016, thereby breaching condition 8202(2)(a). In considering the discretion to cancel the visa, the Tribunal had regard to the applicant's stated purpose of study, her limited academic progress in Australia, her subsequent enrolment in a new course after receiving a notice of intention to cancel, and her admission of minimal engagement in that course. Crucially, the Tribunal also considered that the applicant was in prison in Western Australia, had been convicted of criminal offences, and had provided conflicting statements regarding her intention to study or return to Vietnam. These factors, particularly the criminal convictions and the doubt cast on her credibility and genuine student status, led the Tribunal to conclude that the cancellation of the visa was warranted.

The Tribunal affirmed the decision to cancel the applicant's visa.