Gurjinder Singh (Migration)

This matter concerned an appeal by Gurjinder Singh against the cancellation of his Subclass 500 (Student) visa. The applicant had been enrolled in a Bachelor of Information Technology at the Queensland University of Technology, an Australian Qualifications Framework (AQF) Level 7 course. His enrolment in this course was cancelled, and he subsequently enrolled in a Diploma of Automotive Technology, an AQF Level 5 course, at a different institution. The Department of Home Affairs cancelled his visa on the grounds that he had failed to comply with Condition 8202(2)(b) of his visa, which requires a student visa holder to maintain enrolment in a course at the same or a higher AQF level than the course for which the visa was granted.

The primary legal issue before the Tribunal was whether the applicant had breached Condition 8202(2)(b) of his student visa by enrolling in a course at a lower AQF level than his original course of study. The Tribunal was required to determine if the delegate had been satisfied that such a breach had occurred, and if so, whether the cancellation of the visa was the appropriate outcome. The Tribunal also considered the applicant's explanation for the change in enrolment, which involved a series of unfortunate events and his injury, alongside evidence of his intention to return to his home country.

The Tribunal reasoned that while the applicant had technically failed to comply with Condition 8202(2)(b) by enrolling in a lower AQF level course, this breach was outweighed by the mitigating circumstances. The Tribunal noted that the delegate must be satisfied that a ground for cancellation exists, and that a visa cannot be cancelled simply because a possible ground has been identified and not rebutted by the visa holder. Applying this principle, and considering the applicant's personal circumstances, the Tribunal concluded that the breach of the condition was not so significant as to warrant visa cancellation. The Tribunal found that the applicant ought to be given a final opportunity to complete his current course and then return to his home country.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 500 (Student) visa and substituted a decision not to cancel the visa.