Quimbayo Falla (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector. The applicant had failed to maintain enrolment in a registered course of study, which constituted a breach of visa condition 8202. The Department had issued a Notice of Intention to Cancel (NOICC), to which the applicant attempted to respond, but the response was in an inaccessible format. Despite a request to resubmit the information in an accessible format, the applicant did not comply.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with a condition of their visa, thereby establishing a ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth). If a ground for cancellation was established, the Tribunal was then required to consider whether, in the exercise of its discretion, the visa should be cancelled, having regard to relevant factors.

The Tribunal reasoned that the applicant's failure to be enrolled in a registered course since 16 January 2016 meant they had not complied with visa condition 8202. The Tribunal considered the discretionary factors relevant to cancellation, including the applicant's stated purpose for the visa, the extent of compliance with visa conditions, and the degree of hardship that might be caused by cancellation. The Tribunal found that the applicant had not provided sufficient evidence or arguments to demonstrate that the visa should not be cancelled, noting the applicant's lack of responsiveness and the prolonged period of non-compliance. The Tribunal concluded that the factors favouring cancellation outweighed any factors favouring reinstatement.

Accordingly, the Tribunal affirmed the decision to cancel the applicant's visa.