Singh (Migration)

This matter concerned an appeal to the Tribunal by Mr Singh against the cancellation of his Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The cancellation was based on the ground that Mr Singh had ceased to satisfy the primary criteria for the grant of the visa and had not complied with condition 8516, which requires a visa holder to continue to satisfy the criteria for the grant of the visa.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 existed. If the ground was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal found that at the time of cancellation, Mr Singh was not enrolled in a Bachelor's or Master's degree, nor in a course of study specified for the Subclass 573 visa. This meant he no longer satisfied the primary criteria and had breached condition 8516, as evidenced by the PRISMS record and his own submissions. Despite this, the Tribunal considered the exercise of discretion. It noted that Mr Singh did not receive the Notice of Intention to Consider Cancellation due to an incorrect address, meaning the delegate made the decision without his submissions. The Tribunal also took into account Mr Singh's personal circumstances, including his initial difficulties with English, homesickness, and ill health, which disrupted his studies. It also weighed the significant consequences of cancellation, such as becoming an unlawful non-citizen, facing limitations on future visa applications in Australia under section 48, and the potential requirement to meet Public Interest Requirement 4013 for future temporary visa applications.

The Tribunal set aside the decision to cancel Mr Singh's visa. It concluded that while the ground for cancellation was established, the circumstances, particularly the lack of opportunity for Mr Singh to respond to the cancellation notice and the significant personal hardships he faced, weighed heavily in favour of exercising the discretion not to cancel the visa. The Tribunal noted that even if the visa were cancelled, it would have expired shortly after the review hearing, and any application for a new visa would be a matter for Mr Singh and the Department.