Pham (Migration)

The Administrative Appeals Tribunal considered the decision to cancel the Subclass 500 (Student) visa granted to Mr. Pham, a citizen of Vietnam. The Department of Home Affairs had issued a Notice of Intention to Consider Cancellation due to records indicating Mr. Pham's enrolment in a registered course had been cancelled, suggesting a potential breach of visa condition 8202(2)(a). Mr. Pham responded by detailing a series of personal difficulties, including academic struggles, the COVID-19 pandemic, his own illness, and the bereavement of his grandmother, which had impacted his ability to study.

The Tribunal was required to determine whether Mr. Pham had failed to comply with the conditions of his visa, specifically condition 8202(2)(a) which mandates enrolment in a full-time registered course. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account the circumstances presented by Mr. Pham.

The Tribunal found that Mr. Pham had indeed not been enrolled in a full-time registered course, thus failing to comply with condition 8202(2)(a). However, in exercising its discretion regarding cancellation, the Tribunal had regard to the applicant's stated purpose for being in Australia, which was to undertake studies and obtain Australian qualifications. The Tribunal accepted evidence that Mr. Pham had resumed his studies in automotive technology, had paid a significant portion of his course fees, and was progressing satisfactorily, with only a practical component remaining. Considering the entirety of the circumstances, including the applicant's personal difficulties and his demonstrated commitment to re-engaging with his studies, the Tribunal concluded that the visa should not be cancelled.

Consequently, the Tribunal set aside the Department's decision to cancel Mr. Pham's visa and substituted a decision not to cancel his Subclass 500 (Student) visa.