Singh (Migration)

The Administrative Appeals Tribunal considered whether to set aside a decision to cancel the applicant's Student visa. The applicant, a holder of a subclass 573 Student visa, was issued a Notice of Intention to Consider Cancellation on the basis that he was not enrolled in a registered course between 30 June 2017 and 17 May 2018. The applicant responded, disputing the grounds for cancellation and providing documentation relating to his studies. Subsequently, the Department of Immigration cancelled his visa.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of the Migration Regulations 1994. This condition requires a student visa holder to be enrolled in a registered course and to achieve satisfactory course progress and attendance, as certified by their education provider. The Tribunal was required to determine if the applicant met these requirements, and if not, whether the discretion to cancel his visa should be exercised.

The Tribunal found that the applicant had not complied with condition 8202(2) as he was not enrolled in a registered course from 4 July 2017 to 6 May 2018 and from 5 June 2018 to 26 August 2018. However, in considering the exercise of discretion to cancel the visa, the Tribunal gave significant weight to the applicant's compelling need to remain in Australia to complete his Bachelor of Business degree. The Tribunal accepted that the applicant had been badly advised by education agents and was a victim of fraud, leading to his non-compliance. It was satisfied that he had a strong desire to complete his studies and had demonstrated a compelling need to remain in Australia.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 573 Higher Education Sector visa and substituted a decision not to cancel it.