Singh (Migration)

The Administrative Appeals Tribunal affirmed a delegate's decision to cancel Mr. Singh's Student (Temporary) (Class TU) visa. The dispute centred on whether Mr. Singh had breached a condition of his visa by enrolling in a course at a lower Australian Qualifications Framework (AQF) level than that for which his visa was granted. The delegate had cancelled the visa on the basis that Mr. Singh failed to maintain enrolment in a registered course that, upon completion, would provide a qualification at the same or a higher AQF level than the course for which the visa was originally granted.

The primary legal issue before the Tribunal was to determine whether Mr. Singh had breached condition 8202(2)(b) of the Migration Regulations 1994. This condition requires a student visa holder to maintain enrolment in a registered course that leads to a qualification at the same or a higher AQF level than the course in relation to which the visa was granted. If a breach was established, the Tribunal also had to consider whether the visa should be cancelled under section 116(1) of the Migration Act 1958.

The Tribunal found that Mr. Singh was granted his visa to undertake a Master of Professional Accounting, an AQF level 9 course. However, information indicated that he subsequently enrolled in a Certificate III in Commercial Cookery (AQF level 3), a Certificate IV in Commercial Cookery (AQF level 4), and a Diploma of Hospitality and Management (AQF level 5). The Tribunal accepted Mr. Singh's evidence that he had passed the subjects he was undertaking in the Certificate III in Commercial Cookery. Based on this, the Tribunal was satisfied that Mr. Singh was not enrolled in an AQF level 9 course at the time of the visa cancellation, thus breaching condition 8202(2)(b). The Tribunal concluded that the circumstances of clause 8.02(3) did not apply to his case, and therefore affirmed the decision to cancel his visa.