Tribunal: Member Susan Trotter

The Department of Home Affairs (the Department) cancelled the applicant’s Student visa.  The applicant applied to the AAT for a review of the decision.

The Department may cancel a Student visa if satisfied the holder is not, or is likely not to be, a genuine student.[1] The AAT was concerned with the applicant’s lack of progress in his studies since his arrival in Australia in 2016. There was a period of 10 months in which he did not study at all, and nine months when he held no confirmation of enrolment. The applicant claimed that his studies, coupled with adjusting to life in Australia and learning English, caused a lot of stress and that led to his lack of academic progress. He stated he visited a psychologist and discovered he was clinically depressed.

The applicant claimed that the period that he was not studying came after he had failed the English test required for him to start the Diploma of Hotel Management that he ultimately wanted to complete. He also claimed that following failure of the test, during the period in which he did not study, he was focusing on getting better and getting private tutoring in English. In June 2018, the applicant enrolled in a Diploma of Hospitality Management and was actively studying this course until he received the notice about cancellation of his visa.

The evidence before the AAT included university records, which the AAT found to be consistent with the applicant’s evidence, and a report provided by the applicant’s psychologist. The AAT was not satisfied that the evidence overall supported that the applicant was not, or was not likely to be, a genuine student. The AAT pointed to the fact that the applicant persevered with his English studies, passed the entrance exam and met the admission criteria for the Diploma of Hospitality Management before he received the notice of cancellation of his visa, and that he has sought and received psychological assistance.

The AAT set aside the Department’s decision and substituted a decision not to cancel the visa.

Read the full decision on AustLII.

 

[1] Section 116(1)(fa)(i) of the Migration Act 1958.