SINGH (Migration)

This matter concerned an appeal by an applicant against the cancellation of their Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The visa was cancelled on the grounds that the applicant had breached condition 8202 of the Migration Regulations 1994 by failing to be enrolled in a registered course for a period of eight months. The applicant did not dispute this period of non-enrolment.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202 of their visa, and if not, whether the discretion to cancel the visa should be exercised. Condition 8202 requires a student visa holder to be enrolled in a registered course and to maintain satisfactory course progress and attendance. The applicant’s failure to be enrolled for eight months constituted a breach of this condition.

The Tribunal considered the applicant's explanation for the non-enrolment, which included financial difficulties due to crop losses suffered by their farming family and personal struggles with alcohol. However, the Tribunal also had regard to information, supported by a s.376 Certificate, indicating the applicant was working full-time during the period of non-enrolment, which contradicted their claims of inability to study. The Tribunal found that the applicant had not demonstrated a compelling need to remain in Australia, had failed to comply with other visa conditions by working while claiming inability to study, and had provided vague submissions regarding hardship. While acknowledging the potential consequences of cancellation, the Tribunal concluded that these were intended outcomes of the legislation and did not outweigh the breaches.

The Tribunal affirmed the decision to cancel the applicant's visa.