Nguyen (Migration)

The Administrative Appeals Tribunal considered the case of Ms Nguyen, a national of Vietnam holding a Student (Temporary) (Class TU) visa, subclass 573. The dispute concerned the cancellation of her visa by the Department of Immigration and Border Protection on the grounds that she had breached a condition of her visa. The Tribunal was required to determine whether Ms Nguyen had indeed breached her visa conditions and, if so, whether to exercise its discretion to cancel the visa.

The primary legal issue was whether Ms Nguyen had complied with condition 8202 of Schedule 8 to the Migration Regulations 1994. This condition requires a student visa holder to be enrolled in a registered course and to maintain satisfactory course progress and attendance. The Department had found that Ms Nguyen had not been enrolled in a registered course since 3 August 2015, which constituted a breach of condition 8202(2)(a). The Tribunal was therefore tasked with assessing the evidence of this non-enrolment and considering the implications for the visa cancellation.

The Tribunal found, based on evidence from the Provider Registration and International Student Management System (PRISMS), that Ms Nguyen had not been enrolled in a registered course since 3 August 2015. Applying the principle that a visa holder cannot cease to be enrolled in a registered course, as established in *Liu v MIMIA* [2003] FCA 1170, the Tribunal concluded that Ms Nguyen had breached condition 8202. In considering the discretion to cancel the visa, the Tribunal had regard to the length of the non-enrolment (exceeding 15 months at the time of the delegate's decision), the fact that Ms Nguyen was not pursuing the purpose of her travel to Australia, and the lack of any identified compelling need to remain. While acknowledging potential hardship, including the inability to complete her studies and possible financial difficulties, the Tribunal found the breach to be significant and serious, particularly given the length of time and the fundamental nature of enrolment to the visa subclass.

Consequently, the Tribunal affirmed the decision to cancel Ms Nguyen's visa.