Singh (Migration)

The Administrative Appeals Tribunal considered the cancellation of Mr. Singh's Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector. The Minister had cancelled the visa on the grounds that Mr. Singh had ceased enrolment in a registered higher education course and had subsequently enrolled in a vocational course. Mr. Singh argued that his non-attendance was due to illness and medical treatment, and that he had not sought a deferment of his studies.

The Tribunal was required to determine whether the ground for cancellation under s. 116(1)(b) of the Migration Act 1958 (Cth) was made out, specifically whether Mr. Singh had complied with condition 8516 of his visa. This condition requires a visa holder to continue to satisfy the criteria for the grant of their visa, which in this case included maintaining enrolment in a specified course of study. The Tribunal also had to consider whether, if the ground for cancellation was established, the discretion to cancel the visa should be exercised.

The Tribunal found that Mr. Singh had indeed failed to comply with condition 8516, as he was no longer enrolled in a higher education course after his Bachelor of Business was no longer offered and he subsequently enrolled in vocational studies. However, the Tribunal then considered the exercise of discretion. It noted that while the ground for cancellation existed, it was not a mandatory cancellation. The Tribunal had regard to the applicant's circumstances, including his illness and medical treatment which led to his inability to attend classes and pay fees, and his return to India for treatment. Despite acknowledging the breach of condition 8516, the Tribunal ultimately affirmed the decision to cancel Mr. Singh's visa.