Pham (Migration)

This matter concerned an appeal by an applicant, Mr. Pham, against the cancellation of his Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector. The decision under review was made by the Department of Immigration and Border Protection, and the appeal was heard by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with a condition of his visa, specifically condition 8202, which requires a student visa holder to maintain satisfactory course progress and attendance. If a failure to comply was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account various factors including the applicant's purpose for travel, the extent of non-compliance, and the potential hardship that cancellation might cause.

The Tribunal found that while there had been a period of non-compliance with condition 8202, the applicant had re-enrolled in a course prior to the Notice of Intention to Cancel (NOICC) being issued. The Tribunal considered the applicant's stated intentions to complete his studies, gain a qualification, and eventually establish a business in Vietnam, as well as extenuating circumstances such as his age upon arrival and lack of adult supervision. Weighing these factors, the Tribunal was satisfied that the applicant's purpose for travelling to Australia was to study and that he would be a genuine and conscientious student if his visa were reinstated.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it. The Tribunal noted that this decision was reached marginally in the applicant's favour.