AAT sets aside the Department’s decision to cancel the student visa?

AAT Court: The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa. The Tribunal takes into account that the applicant has persevered with his English studies, that he passed the entrance exam and met the admission criteria for the Diploma at the Institute, that he had commenced these studies prior to receipt of the NOICC and that he has sought and received psychological assistance.

SUMMARY : The Delegate cancelled the Student visa on the basis that the applicant was not or was likely not to be, a genuine student, and that the grounds for cancelling the visa outweighed the grounds for not cancelling the visa. The applicant (Student) lodged an application for review of the delegate’s decision with the Tribunal.

A Minister or the Tibunal may cancel a visa if it is satisfied that the holder of a student visa is not, or is likely not to be, a genuine student.

At the Tribunal the visa applicant provided evidence that he has been under a lot of stress due to language difficulties and the differing environment, which affected his academic performance.  He was diagnosed as clinically depressed on his visit to the psychologist. The visa applicant was enrolled in English courses, before he could commence his Diplomas.

Though PRISMS suggested that his lack of progress in his studies when he held no enrollment and when he did not study, might suggest failure to demonstrate academic progression that might be expected of a genuine student, the Tribunal indicated that such a conclusion would mean that there was a ground for cancellation of the visa.

The applicant told the Tribunal his original and continuing intention was to come to Australia to study. If his intention had not been to do that, he would not have changed to a new school and recommenced study. He did not expect that studying at a University would be that hard for him and he changed to another institute.

Issue 1 - Does the ground for cancellation exist?

The Tribunal has taken into account that the applicant has persevered with his English studies, that he passed the entrance exam and met the admission criteria for the Diploma at the International Institute, that he had commenced these studies prior to receipt of the NOICC and that he has sought and received psychological assistance.  The Tribunal is not satisfied that the evidence overall supports that the applicant is not, or is not likely not to be, a genuine student.

Issue 2 - Should the discretion to cancel the visa be exercised?

The Tribunal has found that the ground for cancellation does not exist, it is not necessary to consider this issue as he has taken the initiative to seek psychological help and continue/pursue his studies.

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