Ore Parraga (Migration)

This matter concerned an application for review of a decision to affirm the automatic cancellation of Mr Roberto Ore Parraga's Student (Temporary) (Class TU) visa, Subclass 572 (Vocational Education and Training Sector). The cancellation was based on the applicant being certified by his education provider as not achieving satisfactory course attendance, a breach of condition 8202(3)(b) of his visa. Following the certification, the Department of Immigration did not receive a response from the applicant within the prescribed 28-day period, leading to the automatic cancellation of his visa. The applicant subsequently applied for a revocation of this cancellation, which was refused by the Department. The Administrative Appeals Tribunal was tasked with reviewing this refusal.

The primary legal issue before the Tribunal was whether the applicant had demonstrated that the breach of condition 8202(3)(b) was due to exceptional circumstances beyond his control. The Tribunal was required to consider all the facts of the case to determine if the applicant satisfied this criterion. A secondary issue arose from the applicant's decision not to proceed with a hearing, which prevented the Tribunal from obtaining oral evidence regarding the reasons for his non-compliance.

The Tribunal found that the applicant had indeed breached condition 8202(3)(b) of his visa, as evidenced by the certification from his education provider. In assessing whether exceptional circumstances beyond his control existed, the Tribunal considered a medical certificate provided by the applicant. However, the Tribunal found this certificate to be problematic as it lacked specificity regarding the medical condition, treatment, duration, and whether the applicant was unfit to attend classes. Furthermore, the period covered by the medical certificate predated the certification of non-compliance by a significant margin. Given the lack of further written evidence and the applicant's decision not to proceed with a hearing, the Tribunal was not satisfied that exceptional circumstances beyond the applicant's control had been established.

Consequently, the Tribunal affirmed the decision not to revoke the automatic cancellation of the applicant's visa.