PHAM (Migration)

The Administrative Appeals Tribunal considered the case of PHAM, who held a Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The dispute arose from the cancellation of PHAM's visa on the grounds that he was not enrolled in a registered course, thereby breaching condition 8202 of the Migration Regulations 1994.

The Tribunal was required to determine whether PHAM had complied with condition 8202, which mandates enrolment in a registered course and satisfactory course progress and attendance. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account various factors relevant to PHAM's circumstances and the purpose of his stay in Australia.

The Tribunal found that PHAM had not been enrolled in a registered course, thus breaching condition 8202(2). However, in exercising its discretion regarding cancellation, the Tribunal considered PHAM's stated intention to complete a Master's degree, his attempts to re-enrol in higher education, the de-registration of a previous college he attended, and his subsequent enrolment in a Diploma of Project Management. The Tribunal also noted evidence of PHAM's marriage to an Australian citizen, his two children, and his intention to apply for a spouse visa, as well as the best interests of his children.

Ultimately, the Tribunal concluded that, in light of all the circumstances, the cancellation of PHAM's visa was not warranted. The decision under review was set aside, and a decision was substituted not to cancel his Subclass 573 visa.