Cancellation of Student Visa Remitted – Evidence of a Genuine Student

The case of Ju (Migration) [2019] AATA 652 involves an application for review of a decision to cancel the applicant’s Student (subclass 500) visa under s 116 of the Migration Act 1958.

On 1 August 2018, the Department sent a Notice of Intention to Consider Cancellation (NOICC) of the visa and was subsequently cancelled on 5 September 2018 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.

CONSIDERATIONS OF THE AAT

In MIMA v Hou [2002] FCA 574, the Court stated that the ‘genuine student’ concept in s.116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with the visa conditions... yet has not conducted him or herself as a genuine student for instance in relation to behaviour at lecturers [sic], and is generally occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student’. 

The applicant presented the following evidence:

·         He had been under a lot of stress with his study in Australia and he did not know he was clinically depressed until he visited a psychologist

·         He first arrived in Australia in September 2016 and planned to study English and start a Diploma of Hotel Management at Griffith University.  He finished the English course but did not pass the test, so he continued to enroll in further classes.

·         Although he had enrolled at Griffith University, he did not complete any studies before he changed his studies to the Queensland International Institute

The period of ten months between July 2017 and May 2018 when he had no confirmation of enrolment or evidence of study suggests a failure to demonstrate academic progression that might be expected of a genuine student.

However, it was noted that the applicant’s intention to enter Australia was always to study and he did not expect to face such difficult academically and in adapting to Australian lifestyle, which ultimately affected his study.  Nonetheless, he persevered in his English studies and passed the entrance exam to meet the admission criteria for the Diploma of Hospitality Management at the Queensland International Institute, and that he had commenced these studies prior to receipt of the NOICC.  He has also since sough and received psychological assistance and his Psychologist concluded that he is ‘quite confident that his (the applicant’s) problem will get better and his academic performance will also get improved with the treatment plan in due course’.

DECISION

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Student (subclass 500) visa.

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