Singh (Migration)

This matter concerned an appeal to the Tribunal regarding the cancellation of the applicant's Subclass 573 Higher Education Sector visa. The cancellation was based on the applicant's alleged failure 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. The applicant had initially been granted a visa to study a Bachelor of Information Technology, but his enrolment in this course was cancelled due to a lack of academic progress. He subsequently enrolled in Vocational Education and Training (VET) courses.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was made out, and if so, whether to exercise its discretion to affirm the cancellation. The core legal issue revolved around whether the applicant's enrolment in VET courses, after his Higher Education (HE) course enrolment was cancelled, meant he no longer satisfied the criteria for his Subclass 573 visa. The criteria for this visa, as summarised by Smith J in *Singh v Minister for Immigration & Anor* [2015] FCCA 2998, required the applicant to either have a confirmation of enrolment in a relevant HE course at the time of application and decision, or at the time of decision, be enrolled in or have an offer of enrolment in a course specified by the Minister. Specified courses for a Subclass 573 visa are limited to those within the Higher Education sector, as distinct from VET courses.

The Tribunal reasoned that the applicant had indeed failed to meet the visa criteria after his Bachelor of Information Technology enrolment was cancelled. It found that the applicant's subsequent enrolment in VET courses did not satisfy the requirements for a Subclass 573 visa, as these courses were not within the Higher Education sector as defined by the Migration Regulations 1994 and relevant ministerial instruments. The Tribunal concluded that the ground for cancellation under s 116(1)(b) was established. In considering the exercise of discretion, the Tribunal noted that the applicant's failure to comply with visa conditions was of his own making, and he had not sought advice regarding his course changes. The Tribunal also took into account the applicant's failure to attend the hearing.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 573 Higher Education Sector visa.