Singh (Migration)

The Administrative Appeals Tribunal reviewed a decision by a delegate of the Minister to cancel Majinder Singh's subclass 500 student visa. Mr. Singh, an Indian citizen, had been granted the visa in March 2017, valid until August 2020, for the purpose of full-time study in Australia. The visa was granted on the condition that he remain enrolled in and make satisfactory progress in registered courses, specifically a Diploma and Advanced Diploma of Hospitality and Management, followed by a Bachelor of Business. The delegate cancelled the visa on 1 May 2018, alleging Mr. Singh had breached the visa condition requiring continuous enrolment in a registered course.

The primary legal issues before the Tribunal were whether the ground for cancellation, namely the applicant's failure to remain enrolled in a registered course, was established, and if so, whether the discretion to cancel the visa should be exercised. The delegate's decision was based on information from the Provider Registration and International Student Management System (PRISMS), which indicated Mr. Singh was not enrolled in a registered course for a continuous period of over eight months, from 16 August 2017 to 1 May 2018. This period of alleged non-enrolment constituted a breach of condition 8202(2)(a) of his visa.

The Tribunal considered the applicant's submission that his inability to obtain evidence of completion from the South Pacific Institute, his initial education provider, prevented him from progressing to his Bachelor's course at Stott's College. This failure on the part of the course provider, coupled with the inability to obtain necessary documentation, was presented as a circumstance beyond the applicant's control. The Tribunal found that the applicant had indeed breached condition 8202(2)(a) by not being enrolled in a registered course for the identified period. However, it also found that the circumstances leading to this breach were beyond the applicant's control, specifically due to the course provider's failure to provide necessary documentation, which prevented him from enrolling in a subsequent course.

Consequently, the Tribunal set aside the delegate's decision to cancel Mr. Singh's visa. The Tribunal exercised its discretion not to cancel the visa, finding that the circumstances of the breach, being beyond the applicant's control due to the actions of the education provider, warranted this outcome.