NGUYEN (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector, held by the applicant, Ms. Nguyen. The dispute arose from the cancellation of her enrolment in a course, which the delegate found constituted a breach of her visa conditions.

The primary legal issue before the Tribunal was whether Ms. Nguyen had breached 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 achieve satisfactory course progress and attendance. If a breach is found, the Tribunal must then consider whether to exercise its discretion to cancel the visa.

The Tribunal found that Ms. Nguyen had breached condition 8202(2) as she was not enrolled in a registered course after her English language course enrolment expired in April 2016. She conceded this fact and admitted to enrolling in subsequent courses solely to avoid visa cancellation, without attending classes. Despite submissions regarding potential hardship to her and her husband if the visa remained cancelled, and her stated desire to study and make her parents proud, the Tribunal concluded that her lack of attendance and stated intention to enrol only to maintain her visa indicated a lack of genuine desire or ability to undertake studies in Australia.

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