Nguyen (Migration)

This matter concerned an appeal by an applicant against the cancellation of their Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector. The applicant had failed to maintain enrolment in a registered course for a period exceeding eleven months, thereby contravening condition 8202(2) of their visa. The primary dispute revolved around whether the discretion to cancel the visa should be exercised, given the applicant's circumstances.

The Tribunal was required to determine whether the applicant had complied with the conditions of their visa and, if not, whether the cancellation of the visa was the appropriate course of action. Central to this was an assessment of the applicant's explanation for their non-compliance, particularly concerning their enrolment status and the advice they received from an education agent. The Tribunal also considered relevant provisions of the Migration Regulations 1994 and the Department's Procedures Advice Manual.

The Tribunal found that while the applicant had indeed failed to comply with condition 8202(2), the circumstances surrounding this non-compliance warranted a favourable exercise of discretion. The applicant's submissions, including evidence of attempts to re-enrol and explanations of confusion regarding enrolment processes and advice received from an education agent, suggested a lack of wilful or mischievous conduct. The Tribunal concluded that the applicant genuinely intended to study and that their failure to maintain enrolment stemmed from poor advice and a limited understanding of the complex administrative requirements. Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it.