Singh (Migration)

The Administrative Appeals Tribunal considered the cancellation of Mr. Singh's Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The dispute arose because the Department of Home Affairs had cancelled Mr. Singh's visa on the grounds that he was not enrolled in a registered course of study between 6 October 2017 and 8 November 2018, thereby breaching condition 8202 of the Migration Regulations 1994. Mr. Singh sought review of this decision.

The primary legal issue before the Tribunal was whether Mr. Singh had breached condition 8202 of the Migration Regulations 1994, specifically subclause (2)(a) which requires the holder to be enrolled in a registered course. If a breach was found, 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, on the evidence presented, Mr. Singh was indeed not enrolled in a registered course between the specified dates, thus confirming a breach of condition 8202(2). However, in considering the exercise of discretion, the Tribunal took into account Mr. Singh's detailed explanation of his study pathway, including difficulties with his initial college, changes in enrolment due to fee disputes and compassionate circumstances requiring travel to India, and subsequent inability to enrol in new courses due to insufficient visa validity. The Tribunal accepted Mr. Singh's evidence regarding these circumstances.

Weighing all the circumstances, the Tribunal concluded that, on balance, the cancellation of Mr. Singh's visa was not warranted. Accordingly, the Tribunal set aside the decision to cancel the visa and substituted a decision not to cancel Mr. Singh's Subclass TU-573 Higher Education Sector visa.