Nguyen (Migration)

This matter concerned an application to review the cancellation of the applicant's Student (Temporary) (Class TU) visa, Subclass 500 (Student). The applicant had been granted the visa on 10 August 2017. The Department of Home Affairs had cancelled the visa on 20 September 2018, on the basis that the applicant had not been enrolled in a registered course since 29 August 2017, thereby breaching condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth). The review was heard by the Tribunal, with Member Wendy Banfield presiding.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of her visa, and if so, whether the discretion to cancel the visa should be exercised. Condition 8202 requires a student visa holder to be enrolled in a full-time registered course and to maintain satisfactory course progress and attendance. The Tribunal was required to consider the applicant's personal circumstances, including financial hardship, the impact on her dependents, and any extenuating circumstances that may have led to the non-compliance.

The Tribunal found that the applicant had indeed failed to comply with condition 8202(2)(a) by not being enrolled in a full-time registered course. However, in exercising its discretion regarding cancellation, the Tribunal had regard to several factors. It considered the applicant's stated intention to return to Vietnam to improve the education system, though it was not satisfied this constituted a compelling need to remain in Australia. Crucially, the Tribunal found that the applicant and her children would face hardship if the visa were cancelled, including the obligation to repay a scholarship. Furthermore, the Tribunal considered that the applicant's non-compliance arose from financial difficulties due to family illness and a relationship breakdown, which affected her ability to care for her children and continue her studies.

Ultimately, the Tribunal concluded that, when assessing the evidence cumulatively and considering the circumstances as a whole, the visa should not be cancelled. The decision under review was set aside, and a decision was substituted to not cancel the applicant's visa.