Omkar Singh (Migration)

This matter concerned an appeal by Omkar Singh against the cancellation of his Subclass 573 Higher Education Sector visa. The visa was cancelled under section 116(1)(b) of the Migration Act 1958 (Cth) on the basis that Mr. Singh had failed to comply with a condition of his visa, specifically condition 8516, which requires a visa holder to continue to satisfy the criteria for the grant of the visa. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the ground for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised.

The primary legal issue was whether Mr. Singh had breached condition 8516 by ceasing his enrolment in a Bachelor of Information Technology course. This condition requires a visa holder to maintain enrolment in a principal course of a type specified for the Subclass 573 visa. The Tribunal considered evidence that Mr. Singh's enrolment was cancelled on 14 April 2016 due to his notification of cessation of studies and his failure to re-enrol for the March 2016 intake. The Tribunal also examined Mr. Singh's explanation for his cessation of studies, which included the death of his grandfather, a medical certificate for a period of two weeks in September 2015, and subsequent enrolments in vocational education and training courses which also faced cancellation due to fee disputes.

The Tribunal reasoned that Mr. Singh had indeed ceased to be enrolled in a higher education course that met the criteria for his visa, thereby breaching condition 8516. While acknowledging the seriousness of visa cancellation, the Tribunal considered the circumstances presented. It noted that Mr. Singh did not refer to his grandfather's death or provide a medical certificate when responding to the notice of intention to cancel his visa. Furthermore, the Tribunal found that Mr. Singh's explanation for not re-enrolling at Federation University Australia and his subsequent enrolments at Stanley College were based on a belief that he was being treated unfairly regarding fees, a position he maintained in relation to both institutions. On balance, the Tribunal concluded that the ground for cancellation was established and that the discretion to cancel the visa should be exercised.

The Tribunal affirmed the decision to cancel Mr. Singh's Subclass 573 Higher Education Sector visa.