Kunwar (Migration)

This matter concerned an appeal by the applicant against the cancellation of her Student (Temporary) (Class TU) visa, subclass 573 (Higher Education Sector). The primary dispute revolved around whether the applicant had complied with her visa conditions, specifically the requirement to remain enrolled in a registered course and maintain satisfactory course progress and attendance. The decision was made by Brendan Darcy, a Member of the Tribunal.

The legal issues before the Tribunal were whether the applicant had failed to comply with a condition of her visa, thereby establishing a ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth), and if so, whether the discretion to cancel the visa should be exercised in her favour. The Tribunal was required to consider the applicant's claims of extenuating circumstances, including health and family issues, and whether these circumstances justified non-compliance or mitigated the need for cancellation.

The Tribunal found that the applicant had indeed failed to comply with her visa condition, as she was not enrolled in a registered course for a substantial period. While acknowledging the applicant's submissions regarding psychological and physical health issues, the Tribunal noted inconsistencies and a lack of timely evidence to support these claims. The Tribunal considered that the applicant's extenuating circumstances, though credible, were not beyond her control and that she had not taken sufficient steps to avoid or mitigate her non-compliance. Furthermore, the applicant did not demonstrate significant hardship arising from the cancellation.

Consequently, the Tribunal concluded that the unfavourable factors, when considered cumulatively, outweighed the favourable ones, and the discretion to cancel the visa should be exercised. The Tribunal affirmed the decision to cancel the applicant's visa, finding no jurisdiction with respect to the other applicant.