Tran (Migration)

This matter concerned the review of a decision to cancel the applicant's Subclass 500 (Student) visa. The applicant, who arrived in Australia at the age of 19, had her visa cancelled on the basis that she was not enrolled in a full-time registered course of study from 27 July 2018 until 24 June 2019. The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The primary legal issue was whether the applicant had breached condition 8202 of her visa, which mandates enrolment in a registered course at the required AQF level, satisfactory course progress, and satisfactory attendance. The applicant’s study history was unclear, with inconsistencies in the evidence provided regarding completed English courses and her initial university enrolment plans. The Tribunal also considered the applicant's explanation for her period of non-enrolment, which involved a trip to Vietnam to care for her mother, whose health was reportedly serious.

The Tribunal found that the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was established, as the applicant was not enrolled in a full-time registered course of study for a significant period. While the applicant acknowledged this ground, the Tribunal then considered its discretion to cancel the visa. The applicant provided medical documents concerning her mother's hospitalisation, but these documents were inconsistent with the applicant's oral evidence regarding the severity of her mother's condition, particularly concerning spinal degeneration and the risk of paralysis. Despite accepting that the applicant's mother was unwell, the Tribunal concluded that the medical evidence did not support the applicant's assertions to the extent required to explain the visa breach.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's visa, finding that the circumstances as a whole warranted cancellation.