SINGH (Migration)

This matter concerned an appeal by an applicant against the cancellation of their Subclass 573 Higher Education Sector visa. The visa was cancelled on the grounds that the applicant had failed to meet the requirements of condition 8202 of Schedule 8 to the Migration Regulations 1994, specifically by not achieving satisfactory course attendance as certified by their education provider. The applicant conceded that a breach of condition 8202 had occurred due to the certification of unsatisfactory attendance.

The primary legal issue before the Tribunal was whether to exercise its discretion to set aside the delegate's decision to cancel the visa, despite the admitted breach of condition 8202. The applicant argued that the Tribunal should exercise this discretion, presenting a narrative that their education provider had fabricated attendance records to either avoid enrolling them due to alleged criminal activity or to encourage re-enrolment and further payment. The Tribunal was required to consider the applicant's submissions in light of government policy guidelines and the evidence presented.

The Tribunal found the applicant's explanations regarding the alleged fabrication of attendance records to be inconsistent and unbelievable. The applicant presented contradictory reasons for the education provider's alleged actions, first suggesting it was due to concerns about criminal activity, and then asserting it was to secure further tuition fees. This inconsistency, coupled with the clear certification of unsatisfactory attendance by the education provider, led the Tribunal to conclude that the applicant had not complied with condition 8202(3)(b) of the Migration Regulations. The Tribunal affirmed the decision to cancel the applicant's visa.