TRAN (Migration)

This matter concerned an appeal by the applicant, Mr. Tran, against the cancellation of his Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector. The Administrative Appeals Tribunal (AAT) was required to determine whether the grounds for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with a condition of his visa, specifically condition 8202, which requires a student visa holder to maintain enrolment in a registered course and achieve satisfactory academic progress. The Tribunal also had to consider whether, having found a ground for cancellation, it should exercise its discretion to cancel the visa, taking into account various factors including the applicant's purpose for travel, the extent of non-compliance, and any hardship that might be caused by cancellation.

The Tribunal found that the applicant had failed to comply with visa condition 8202, as evidenced by his lack of academic achievement since arriving in Australia in 2011 and his enrolment in a course not in accordance with his original visa subclass. The Tribunal noted that the applicant did not provide any evidence to explain his academic and career goals or his lack of progress, nor did he attend the scheduled hearing. This lack of engagement and academic achievement led the Tribunal to conclude that the applicant was not a genuine temporary visa holder in Australia for the purposes of study. While the Tribunal found the period of non-compliance itself was not significant, it weighed the lack of academic achievement and the applicant's failure to demonstrate a genuine purpose for study heavily in favour of cancellation.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's Class TU visa.