Nguyen (Migration)

This matter concerned the review of a decision by the Minister to cancel the applicant's Student (Temporary) (Class TU) visa, subclass 573 (Higher Education Sector). The applicant, who had arrived in Australia in August 2013, was notified of the potential cancellation of his visa in May 2017 due to a conviction for possession of an indictable amount of a prohibited drug in October 2016. The applicant did not dispute that grounds for cancellation existed, acknowledging his conviction and a subsequent six-month term of imprisonment.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(g) of the Migration Act 1958 (Cth) was established, and if so, whether to exercise its discretion to cancel the visa. The relevant ground, prescribed by r 2.43(1)(oa) of the Migration Regulations 1994, applied to temporary visa holders convicted of an offence against a law of the Commonwealth, a State, or Territory. The Tribunal found this ground was satisfied given the applicant's conviction.

In considering the exercise of discretion, the Tribunal had regard to the applicant's purpose for entering Australia and his compliance with visa conditions. Despite entering on a student visa to study a Bachelor of Business, the applicant had only completed a six-month certificate course in nearly four years and had not been enrolled in a registered course since September 2014, breaching his visa conditions. The Tribunal did not accept the applicant's assertion of ignorance regarding the criminal nature of his conviction. While the applicant raised hardship concerning his parents' health and financial situation, the Tribunal noted that the father's financial circumstances had improved and he could afford medical treatment for the applicant's mother.

Ultimately, the Tribunal concluded that the visa should be cancelled, affirming the delegate's decision.