Nguyen (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration to cancel the applicant's Subclass 573 Higher Education Sector visa. The cancellation was based on the applicant's alleged breach of a visa condition requiring enrolment in a registered course. The applicant, Miss Thi Thu Nguyen, appeared before the Tribunal with the assistance of an interpreter and was represented by a registered migration agent.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of Schedule 8 to the Migration Regulations 1994, specifically subclause 8202(2), which mandates enrolment in a registered course. If a breach was established, the Tribunal was then required to consider whether to exercise its discretion to cancel the visa. The applicant conceded that she had not been enrolled in a registered course since 7 November 2014, which was the basis of the delegate's decision.

The Tribunal found that the applicant had indeed failed to comply with condition 8202(2) as she was not enrolled in a registered course. In considering the exercise of discretion to cancel the visa, the Tribunal had regard to matters raised by the applicant and government policy. The applicant's history revealed a pattern of withdrawing from courses, including English language studies, and a lack of demonstrable progress in English proficiency despite being in Australia for several years. The Tribunal noted concerns about the applicant's desire and ability to undertake higher education in Australia, particularly given her difficulties with English and her failure to complete previous English language courses.

Ultimately, the Tribunal affirmed the delegate's decision to cancel the applicant's visa. The Tribunal concluded that the applicant had not complied with a condition of her visa and, after considering the relevant factors, determined that the cancellation was appropriate.