Singh (Migration)

This matter concerned an appeal by Mr. Singh against the cancellation of his Subclass 573 Higher Education Sector student visa. The Minister had cancelled the visa under section 116(1)(fa)(i) of the Migration Act 1958 (Cth), on the ground that Mr. Singh was not a genuine student. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The Tribunal was required to consider whether Mr. Singh was a genuine student, as defined by section 116(1)(fa)(i) of the Act and elaborated upon in case law such as *MIMA v Hou* [2002] FCA 574. This involved assessing whether Mr. Singh's conduct, including his enrolment history and academic progress, indicated he was not genuinely pursuing higher education in Australia. The Tribunal also had to consider the prescribed matters under regulation 2.43 of the Migration Regulations 1994, which included whether his participation in a course of study had been deferred or suspended. 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 factors such as the purpose of his travel, any compelling need to remain in Australia, his compliance with visa conditions, and the degree of hardship that might be caused by cancellation.

The Tribunal found that the ground for cancellation existed because Mr. Singh had not maintained his study plan. He had enrolled in courses below the required level for his visa, had not been enrolled in a bachelor's or master's degree since August 2016, and had not been enrolled in a principal course specified for his visa subclass. While Mr. Singh cited a medical condition, lack of English ability, poor advice from an agent, and a desire to fulfil a dream as reasons for his study record, he had not sought a deferral or leave of absence. Furthermore, the Tribunal found that Mr. Singh had not demonstrated a compelling need to remain in Australia, noting his existing Bachelor of Civil Engineering qualification from his home country and his inability to successfully complete further studies in Australia. His claims of hardship if he returned were not substantiated with evidence.

Consequently, the Tribunal affirmed the decision to cancel Mr. Singh's visa.