BLANCO PULIDO (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of Mr. Blanco Pulido concerning the cancellation of his Student (Temporary) (Class TU) Subclass 572 Vocational Education and Training Sector visa. The dispute arose because Mr. Pulido had not been enrolled in a registered course for over 15 months, a breach of his visa conditions. The Minister had the power to cancel the visa under section 116(1)(b) of the Migration Act 1958 (Cth) if satisfied that a ground for cancellation existed.

The primary legal issue before the Tribunal was whether the Minister's decision to cancel Mr. Pulido's visa should be upheld. This involved determining if the ground for cancellation under section 116(1)(b) was made out, and if so, whether the discretion to cancel the visa should be exercised, taking into account all relevant circumstances. The Tribunal was required to consider the applicant's personal circumstances, the reasons for his non-enrolment, and the potential hardship that visa cancellation would cause to him and his Australian citizen wife.

The Tribunal found that the ground for cancellation under section 116(1)(b) was indeed established, as Mr. Pulido conceded he had not been enrolled in a registered course since May 2015. However, the Tribunal then exercised its discretion not to cancel the visa. In reaching this decision, the Tribunal had regard to a range of compassionate circumstances presented by Mr. Pulido, including significant personal problems, emotional issues, multiple course enrolments, and considerable financial stress. Crucially, the Tribunal considered the hardship that cancellation would impose on his Australian citizen wife, who was pregnant and relied on his support, and the potential negative impact on their plans to build a family and acquire a home. The Tribunal also noted the applicant's strong ties to Australia through his sister and her children, and his desire to remain with his wife.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel Mr. Pulido's visa.