TRAN (Migration)

The Administrative Appeals Tribunal considered whether the applicant, a Vietnamese national holding a Subclass 573 Higher Education Sector visa, had breached condition 8202 of the Migration Regulations 1994, which could lead to the cancellation of her visa under section 116(1) of the Migration Act 1958. The applicant had a history of enrolling in and withdrawing from various courses since her arrival in Australia in 2015, with a significant period of un-enrolment between September 2017 and July 2018. The delegate had cancelled her visa on 18 January 2019 due to non-enrolment from 16 March 2018, a decision the applicant sought to have reviewed by the Tribunal.

The primary legal issue before the Tribunal was to determine if the applicant had failed to comply with condition 8202(2) of her visa, which requires the holder to be enrolled in a registered course. The Tribunal also had to consider whether, having found a breach, it should exercise its discretion to cancel the visa, taking into account the applicant's circumstances and the purpose of her stay in Australia. The applicant contended that her un-enrolment was due to circumstances beyond her control, specifically family issues related to her grandmother's health, and that she intended to complete her studies.

The Tribunal reasoned that the applicant had not been enrolled in a registered course from 16 March 2018, and therefore had not complied with condition 8202(2). While acknowledging the applicant's stated reasons for the un-enrolment and her expressed desire to study, the Tribunal found that her history of course changes and lack of academic progress since 2015 weighed against her. The Tribunal also gave little weight to the applicant's claim of a compelling need to remain in Australia, noting that her provided Confirmation of Enrolment appeared to be obtained only after the invitation to the hearing. The Tribunal concluded that the applicant had not demonstrated a significant hardship that would warrant a different outcome and that the breach of the visa condition was significant.

Consequently, the Tribunal affirmed the delegate's decision to cancel the applicant's visa.