Virinder Singh (Migration)

This matter concerned an appeal by Virinder Singh against the decision to cancel his Subclass 573 Higher Education Sector visa. The dispute arose from Mr Singh's failure to maintain enrolment in a course of study, which constituted a breach of his visa condition 8516. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The Tribunal first considered whether the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) was established. This required determining if Mr Singh had complied with condition 8516, which mandates that a visa holder must continue to satisfy the criteria for the grant of their visa. In this instance, the criterion related to maintaining enrolment in a principal course. The Tribunal noted that Mr Singh's enrolment in a Bachelor of Business (Management) was cancelled on 1 March 2017 due to non-commencement of studies. Although he later obtained a new Confirmation of Enrolment (CoE) in October 2017, this enrolment was subsequently cancelled in December 2018.

Having found that the ground for cancellation existed, the Tribunal then considered whether to exercise its discretion to cancel the visa. The Tribunal noted that Mr Singh had not attended the hearing or provided submissions, and therefore relied on the information available in the Department's files. It was established that Mr Singh had declared access to sufficient funds at the time of his visa application, a requirement for the Streamlined Visa Processing arrangements under which his visa was granted. The Tribunal found his breach of condition 8516 to be significant, as he was not undertaking the study for which his visa was granted and was not fulfilling the purpose of his stay in Australia. The Tribunal considered that if Mr Singh faced financial difficulties, it would have been reasonable to expect him to depart Australia temporarily rather than remain in breach of his visa conditions.

Ultimately, the Tribunal affirmed the decision to cancel Mr Singh's Subclass 573 visa, concluding that on balance and considering all circumstances, cancellation was warranted.