Tran (Migration)

The Administrative Appeals Tribunal considered the case of Ms. Tran, who held a Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector visa. The dispute concerned the cancellation of her visa, which was based on her alleged failure to comply with the conditions of her visa. The Tribunal was required to determine whether Ms. Tran had breached condition 8202 of the Migration Regulations 1994 and, if so, whether to affirm the decision to cancel her visa.

The primary legal issue before the Tribunal was whether Ms. Tran had complied with condition 8202 of the Migration Regulations 1994. This condition requires a student visa holder to be enrolled in a registered course and to achieve satisfactory course progress and attendance. The Tribunal specifically examined whether Ms. Tran was enrolled in a registered course, as her enrolment in a Bachelor of Business course had been cancelled in November 2016 due to non-payment of tuition fees, and she had not enrolled in any relevant course since that date. The Tribunal also considered the discretion to cancel the visa, even if a breach was found, and whether the information provided by an informant, protected by a section 376 certificate, was relevant to the decision.

The Tribunal found that Ms. Tran had not complied with condition 8202(2) of the Regulations because she was not enrolled in a registered course. Her PRISMS records confirmed her last enrolment was cancelled in 2016, and she admitted to not having been enrolled since. Despite her claims of personal difficulties, including the birth of her daughter, a miscarriage, and financial stress, which she stated impacted her motivation to study, the Tribunal noted that she had not successfully completed any of her multiple course enrolments over nearly seven years. The Tribunal also considered information from an informant, which suggested Ms. Tran was working and not studying, indicating she was not a genuine student and was using the visa program to reside and work in Australia. The Tribunal afforded Ms. Tran the opportunity to comment on this information and declined an adjournment to do so.

Ultimately, the Tribunal affirmed the decision to cancel Ms. Tran's visa, concluding that the ground for cancellation existed and that, considering all circumstances, the visa should be cancelled. The Tribunal noted it had no jurisdiction with respect to other applicants.