Singh (Migration)

This matter concerned an appeal by Mr. Singh against the cancellation of his Subclass 500 (Student) visa. The Minister had cancelled the visa on the ground that Mr. Singh was not enrolled in a registered course, a breach of condition 8202 of his visa. Mr. Singh had commenced a Bachelor of Information Technology at Victoria University but had failed five subjects, and his confirmation of enrolment was cancelled. He remained unenrolled in a registered course from October 2017 until his visa cancellation in July 2018.

The primary legal issue before the Tribunal was whether the Minister's decision to cancel Mr. Singh's visa was justified, considering both the existence of the ground for cancellation and the exercise of discretion. The Tribunal was required to determine if Mr. Singh had failed to comply with a visa condition, specifically being enrolled in a registered course, and if so, whether the circumstances warranted the cancellation of his visa.

The Tribunal found that the ground for cancellation, namely not being enrolled in a registered course, was established. However, the Tribunal then considered the exercise of discretion regarding cancellation. It took into account Mr. Singh's stated intention to complete his Bachelor of Information Technology, the significant financial investment made by his father (over $50,000 AUD), and the severe financial difficulties faced by his family due to his mother's medical treatment in India. The Tribunal also considered Mr. Singh's cultural obligations as the eldest son to support his family and his shame at returning to India without a degree, as well as the negative impact on his future employment prospects.

Ultimately, the Tribunal set aside the decision to cancel Mr. Singh's visa and substituted a decision not to cancel his Subclass 500 (Student) visa, finding that the circumstances weighed against cancellation.