Phan (Migration)

This matter concerned an application by Mr Phan for review of a decision to cancel his Subclass 573 Higher Education Sector visa. The applicant had been granted the visa on 5 June 2015, with a condition requiring him to maintain enrolment in a course of study. The Department of Home Affairs had cancelled the visa on the basis that the applicant had failed to comply with this condition, specifically condition 8516, by ceasing his studies and having his enrolment cancelled. The Administrative Appeals Tribunal was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to affirm the cancellation.

The Tribunal was required to consider whether the applicant had breached condition 8516 of his visa, which mandates that a visa holder must continue to satisfy the criteria for the grant of their visa. For a Subclass 573 visa, this included maintaining enrolment in a principal course of study with an eligible education provider. The applicant’s enrolment in an English course at Perth International College of English had been cancelled. The Tribunal also had to consider whether to exercise its discretion to affirm the cancellation, having regard to all relevant circumstances, including government policy and the applicant's explanation for the non-compliance.

The Tribunal found that the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) was made out, as the applicant had failed to maintain enrolment, thereby breaching condition 8516. The applicant provided several explanations for his cessation of studies, including illness due to cold weather and family tragedies causing stress, leading to non-payment of fees. However, the Tribunal found inconsistencies in his accounts, particularly regarding the provision of a medical certificate and the reasons for his non-attendance. The Tribunal gave significant weight to the fact that the applicant had been in breach of his visa condition for over three years, deeming this a considerable period of non-compliance that weighed heavily against him.

Ultimately, the Tribunal concluded that the circumstances as a whole warranted the affirmation of the decision to cancel the applicant's visa.