Singh (Migration)

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

The Tribunal considered whether Mr Singh was a genuine student, as defined by section 116(1)(fa)(i) of the Act and elaborated upon in *MIMA v Hou* [2002] FCA 574. This involved assessing whether Mr Singh had conducted himself as a genuine student, even if he had technically complied with visa conditions. The Tribunal also had regard to prescribed matters under regulation 2.43 of the Migration Regulations 1994, including whether his participation in a course of study had been deferred or suspended due to his conduct, circumstances other than compassionate or compelling ones, or fraudulent or misrepresented circumstances.

In its reasoning, the Tribunal noted that Mr Singh had not commenced his course and had not been enrolled in a registered course for a substantial period. While accepting that Mr Singh's father had undergone surgery, the Tribunal found that this did not constitute a compelling need for Mr Singh to remain in Australia, particularly as his father continued to financially support his studies. Furthermore, Mr Singh admitted to breaching his visa condition by working more than 20 hours per week. The Tribunal concluded that these factors weighed against setting aside the cancellation.

Ultimately, the Tribunal affirmed the decision to cancel Mr Singh's visa, finding that the circumstances as a whole supported the cancellation.