Trinh (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 573 Higher Education Sector visa. The applicant, a Vietnamese national aged 42, had been granted the visa for the purpose of studying commerce and media in Australia. The cancellation was based on the applicant's alleged failure to comply with condition 8202 of the Migration Regulations 1994, specifically by not being enrolled in a registered course of study.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of his student visa. This condition requires the visa holder to be enrolled in a registered course, achieve satisfactory course progress, and maintain satisfactory course attendance. If a breach of this condition was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa.

The Tribunal found that the applicant had not been enrolled in a registered course of study for a period of six months, thereby establishing a breach of condition 8202(2). However, in considering the exercise of its discretion to cancel the visa, the Tribunal had regard to the applicant's personal circumstances. The applicant had a long-standing commitment to the Catholic Church, having come to Australia under its orders to work and study towards ordination as a Priest. The Tribunal noted the hardship implications for the applicant, the church, and the congregation if the visa were cancelled, particularly given his role and the impact on the reputation of the priest.

Ultimately, the Tribunal concluded that, in light of the compelling circumstances presented by the applicant, the visa should not be cancelled. The decision under review was set aside, and a substituted decision was made not to cancel the applicant's Subclass 573 visa.