Phan (Migration)

This matter concerned an appeal by the applicant, Phan, against the cancellation of her Subclass 573 Higher Education Sector visa. The dispute arose because the applicant had ceased to be enrolled in a registered course of study, thereby failing to comply with condition 8202 of her visa. The decision was made by Vanessa Plain, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant's Subclass 573 visa should be cancelled, notwithstanding her non-compliance with condition 8202. This required the Tribunal to consider the exercise of its discretion, taking into account relevant circumstances and departmental guidelines. The Tribunal was tasked with determining if there were compelling reasons to set aside the cancellation decision.

The Tribunal found that while the applicant had indeed breached condition 8202 by not being enrolled in a registered course at the time she received the notice of intention to cancel, there were compelling circumstances that mitigated this breach. The applicant had a demonstrated history of diligent study in Australia, had partially completed her chosen qualification, and intended to return to Vietnam upon completion. Crucially, the Tribunal accepted that the circumstances leading to her non-compliance, including wrongful imprisonment and severe anxiety and depression, were not reasonably within her control. These factors, combined with her clear intention to study and then depart Australia, weighed heavily against cancellation.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it.