Singh (Migration)

The Administrative Appeals Tribunal considered the case of Mr. Singh, who sought to challenge the cancellation of his Subclass 573 Higher Education Sector visa. The Minister's delegate had cancelled Mr. Singh's visa on the grounds that he had failed to comply with a condition of his visa, specifically condition 8516, which requires a visa holder to continue to satisfy the criteria for the grant of their visa. Mr. Singh's enrolment in a Bachelor of Business degree course was cancelled on 11 August 2015, and he did not re-enrol in a degree course until after receiving a Notice of Intention to Consider Cancellation.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was established, and if so, whether the discretion to cancel the visa should be exercised. To satisfy the criteria for a Subclass 573 visa, an applicant must either have a confirmation of enrolment in a degree course at the time of application and decision, or be enrolled in or have an offer of enrolment in a course specified by the Minister. The Tribunal was required to determine if Mr. Singh had continued to meet these criteria after his initial enrolment was cancelled.

The Tribunal reasoned that Mr. Singh had breached condition 8516 from 11 August 2015 when his Bachelor of Business enrolment was cancelled. Despite re-enrolling in a Bachelor of Business degree after receiving the notice of intention to cancel, the Tribunal noted that he had previously completed two diploma courses and then enrolled in a Certificate IV in Commercial Cookery. This pattern of enrolment, coupled with his stated intention to complete the cookery course and then seek another student visa in 2018, led the Tribunal to conclude that Mr. Singh may not have genuinely intended to undertake a higher education course during the currency of his visa. The Tribunal found that the ground for cancellation existed and, after considering all relevant circumstances, exercised its discretion to affirm the cancellation of Mr. Singh's visa.