Singh (Migration)

This matter concerned an appeal by Mr Singh against the cancellation of his Bridging B (subclass 020) visa. The Department had cancelled the visa on the basis that it was granted on the existence of a fact or circumstance that did not exist. Specifically, the Department contended that at the time of Mr Singh's application for the Bridging B visa on 7 January 2014, he was not the holder of a Bridging A or Bridging B visa, which was a prerequisite for the grant of the visa under regulations 020.211 and 020.221. Mr Singh's previous substantive visa application had been refused, and that refusal affirmed, with his associated bridging visa ceasing on 29 July 2013, meaning he was an unlawful non-citizen between 30 July 2013 and 7 January 2014.

The primary legal issue before the Tribunal was whether the ground for cancellation under s 116(1)(aa) of the Migration Act 1958 (Cth) was made out. This section permits the Minister to cancel a visa if satisfied that the decision to grant the visa was based, wholly or partly, on a fact or circumstance that did not exist. If this ground was established, the Tribunal then had to consider whether, in the exercise of its discretion, the visa should be cancelled, taking into account all relevant circumstances.

The Tribunal found that the ground for cancellation under s 116(1)(aa) was established because the decision to grant Mr Singh the Bridging B visa was based, in part, on the erroneous belief that he held a Bridging A or Bridging B visa at the time of his application, a fact that did not exist. The Tribunal then considered its discretion to cancel the visa. It noted Mr Singh's intention to study in Australia, evidenced by his completion of a Diploma of Management, and gave this some weight in his favour. However, it did not consider this intention to equate to a compelling need to remain in Australia. The Tribunal also gave limited weight to Mr Singh's submission that COVID-19 travel restrictions prevented his departure. Having considered all the circumstances, the Tribunal concluded that the visa should be cancelled.

The Tribunal affirmed the decision to cancel Mr Singh's Subclass 020 (Bridging B) visa.