Tran (Migration)

This matter concerned an appeal by an applicant against the cancellation of his Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The dispute arose from the applicant's failure to be enrolled in a registered course, which constituted a breach of visa condition 8202 of the Migration Regulations 1994. The decision under review was made by the Tribunal, presided over by Brendan Darcy.

The primary legal issue before the Tribunal was whether to exercise its discretion to cancel the applicant's visa, notwithstanding the finding that he had not complied with a condition of his visa. This required a cumulative consideration of all relevant factors, including the significance of the breach, the applicant's credibility, the presence of any extenuating circumstances, and the potential hardship if the visa were not reinstated.

The Tribunal reasoned that the applicant had failed to provide credible evidence to support his claims, leading to findings that he had contrived specific claims and lacked general credibility as a witness. This adverse credibility finding was given considerable weight in favour of the visa remaining cancelled. The Tribunal found the breach of condition 8202 to be significant and concluded that the applicant had not demonstrated he was a genuine student who would uphold visa conditions if reinstated, nor had he presented credible extenuating circumstances or reasons for severe hardship.

Ultimately, the Tribunal made a cumulative finding that the factors favouring the visa remaining cancelled were not outweighed by factors in favour of its reinstatement. Accordingly, the Tribunal affirmed the decision to cancel the applicant’s Class TU visa.