Phan (Migration)

This matter concerned an appeal by the applicant, Ms. Phan, against the cancellation of her Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The cancellation was based on the ground that she had ceased to satisfy the primary criteria for the grant of her visa, specifically by failing to maintain enrolment in a course of study that met the visa requirements.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was made out, and if so, whether to exercise its discretion to cancel the visa. The applicant's visa required her to continue to satisfy the criteria for its grant, which included maintaining enrolment in a Higher Education Sector course. The Tribunal found that the applicant had not maintained such enrolment since withdrawing from her initial course at Deakin University, thereby breaching condition 8516 of her visa.

In considering the exercise of its discretion, the Tribunal had regard to several factors. It accepted the applicant's genuine intention to study at the Bachelor level, her contrition for breaching visa conditions, and attributed her non-compliance partly to her youth, the challenges of studying in a foreign country, and potentially poor advice from her migration agent. While acknowledging the significant period of non-compliance, the Tribunal gave considerable weight to the applicant's marriage to an Australian citizen, finding that cancellation of her visa would cause significant hardship to her husband and their marriage.

On balance, the Tribunal concluded that the applicant's credibility, contrition, genuine intention to study, and her marriage to an Australian citizen were significant factors that persuaded it that the visa should not be cancelled. Accordingly, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 573 visa.