Pham (Migration)

The Administrative Appeals Tribunal (AAT) considered an application by Mr. Pham for review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to cancel his Student (Temporary) (Class TU) visa, subclass 500. The cancellation was based on the ground that Mr. Pham was not enrolled in a registered course, contrary to the conditions of his visa.

The Tribunal was required to determine whether the Minister's discretion to cancel Mr. Pham's visa had been exercised correctly. This involved assessing whether the cancellation decision was justified, having regard to all relevant considerations, including the specific circumstances of Mr. Pham's case and the public interest.

In its reasoning, the Tribunal acknowledged that Mr. Pham had indeed failed to maintain enrolment in a registered course. However, it found that there were compelling reasons to exercise the discretion not to cancel his visa. These included the significant financial loss Mr. Pham had already suffered, his documented mental health issues, his strong commitment to his studies, and evidence of a genuine attempt to defer his enrolment. The Tribunal concluded that these factors weighed heavily against cancellation and that it was in the public interest to allow Mr. Pham to continue his studies.

Consequently, the Tribunal set aside the Minister's decision to cancel Mr. Pham's visa and substituted a new decision to not cancel the visa.