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 decision under review was made by the Department of Immigration and Border Protection.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with a condition of their visa, specifically condition 8202 of the Migration Regulations 1994, which requires a visa holder to be enrolled in a registered course and to achieve satisfactory course progress and attendance. If a failure to comply was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa.

The Tribunal considered evidence including the applicant's late enrolment, the death of their father in 2015, and subsequent attempts to re-enrol in courses. The applicant's mother provided a letter detailing the impact of the father's death on the applicant and expressing fears of military conscription if the applicant returned to Vietnam. Despite these circumstances, the delegate had assessed that the applicant's purpose in Australia was not to study, noting a year-long non-compliance with condition 8202. The Tribunal, weighing all the factors, concluded that the visa should be cancelled.

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