Singh (Migration)

The applicant, Mr. Singh, sought review of a decision to cancel his Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector. The dispute centred on whether the grounds for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) were made out, and if so, whether the Minister should exercise the discretion to cancel the visa. The matter was heard by Melissa McAdam, a member of the Tribunal.

The Tribunal was required to determine if Mr. Singh had failed to comply with a condition of his visa, specifically condition 8516, which mandates that a visa holder must continue to satisfy the criteria for the grant of their visa. This included assessing whether Mr. Singh had maintained enrolment in a course of study that met the requirements for his Subclass 573 visa. If the ground for cancellation 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 the ground for cancellation under section 116(1)(b) was made out, as Mr. Singh's enrolment in his higher education course had been cancelled due to unsatisfactory attendance. However, the Tribunal then proceeded to consider the exercise of discretion. It noted Mr. Singh's efforts to continue studying in Australia, his compliance with other visa conditions, and the potential hardship his departure would cause, particularly in relation to his family responsibilities and his nephew. While acknowledging that Mr. Singh had not completed any course since his student visa situation became unstable, the Tribunal gave weight to his efforts and the familial bonds.

Ultimately, the Tribunal concluded that, considering all the circumstances, the visa should not be cancelled. The decision under review was set aside, and a substituted decision was made not to cancel Mr. Singh's Subclass 573 visa.