Tran (Migration)

The Administrative Appeals Tribunal considered the case of Mr Tran, a student visa holder, whose visa was cancelled by a delegate of the Minister. The dispute concerned whether Mr Tran had breached condition 8202 of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a registered course and to maintain satisfactory course progress and attendance.

The Tribunal was required to determine if Mr Tran had complied with condition 8202 and, if not, whether the discretion to cancel his visa should be exercised. Specifically, the Tribunal had to assess whether Mr Tran had been enrolled in a registered course of study as required by condition 8202(2) and consider the circumstances surrounding his failure to maintain enrolment.

The Tribunal found that Mr Tran had admitted to not being enrolled in a registered course of study between April 2016 and April 2018, a fact corroborated by the Department's PRISMS records. This constituted a breach of condition 8202(2). However, in considering the exercise of discretion to cancel the visa, the Tribunal had regard to Mr Tran's stated intention to study in Australia, his past academic achievements, and his efforts to re-enrol in a Bachelor degree at Macquarie University. While acknowledging the seriousness of the breach, the Tribunal also considered the personal difficulties Mr Tran had experienced, including family issues that affected his studies, and the potential hardship his parents and he would face if he could not complete his degree. The Tribunal also noted that there was no evidence of breaches of other visa conditions.

Ultimately, the Tribunal decided to set aside the delegate's decision to cancel Mr Tran's visa. The Tribunal concluded that, despite the breach, Mr Tran should be provided with a final opportunity to complete his Bachelor degree, giving significant weight to his continued efforts to study and the circumstances that had impacted his academic progress.