Phung (Migration)

The Administrative Appeals Tribunal affirmed the decision to cancel the applicant's Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The dispute centred on whether the applicant, a citizen of Vietnam, had breached condition 8202 of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a registered course and maintain satisfactory course progress and attendance.

The primary legal issue before the Tribunal was to determine if the applicant had contravened condition 8202, specifically by not being enrolled in a registered course. If a breach was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa under section 116(1) of the Migration Act 1958.

The Tribunal found that the applicant had indeed breached condition 8202(2) as PRISMS records indicated she was not enrolled in a registered course for a significant period. While the applicant had provided some explanation to the Department regarding her non-enrolment, which included medical documents for her parents, she failed to provide further evidence or submissions to the Tribunal. The Tribunal noted that the applicant had previously been enrolled in various courses, some of which were not completed or were cancelled. Although she re-enrolled in a Bachelor of Business, this enrolment appeared to have been cancelled after the visa cancellation. The Tribunal concluded that the applicant's lack of responsiveness, failure to provide further evidence, and absence from a scheduled hearing, coupled with no stated purpose for her studies, indicated she was not a genuine student who would uphold visa conditions. Consequently, the Tribunal affirmed the cancellation decision.