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Ways to Overcome Student Visa Refusal

Do considerations of lifestyle matter when it comes to assessing whether an applicant for a student visa satisfies the “genuine temporary entrant “ criterion?

For example, does it matter if a student has been living in Canberra, and commuting to Sydney once a week to attend classes?

This question was examined in a decision that was handed down on 30 June 2017 by Judge Smith of the Federal Circuit Court in Raza v Minister for Immigration & Anor (2017) FCCA 1272 (30 June 2017).

The background of this case was that the applicant had originally come to Australia from Pakistan on a student visa to study a Diploma of Business, and then a Bachelor of Business Administration, at the University of Canberra. He later enrolled in a Bachelor of Accounting course at an education provider in Sydney, and sought a further student visa from the Department in order to enable him to remain in Australia to attend that course.

In the course of processing that student visa application, the Department wrote to the applicant requesting an explanation concerning why he was continuing to live in the ACT but was studying 300 kilometres away in Sydney.

The applicant replied through an email in which he stated that he “enjoyed the atmosphere” in Canberra, that he travelled regularly from Canberra to Sydney by bus or in a friend’s car in order to attend classes, and that while in Sydney he stayed either at his friend’s house or in a backpacker’s accommodation while in Sydney.  The applicant provided the Department with evidence that he had attended 80% of his classes and records to document his travel history between Canberra and Sydney. The materials that the applicant provided to the Department also included correspondence from the Sydney education provider which stated that the applicant had been approved for a reduced study load on medical grounds, and that his classes were held on only 1 day a week (on Wednesdays).

Nonetheless, the Department proceeded to refuse his application for a further student visa. He then applied to the Tribunal for merits review.

In its decision affirming the Department’s refusal of the student visa application, the Tribunal made the following observations:

“The documents submitted regarding the applicant’s current course clearly indicates that out of the seventeen subjects in which he was enrolled only two subjects were actively undertaken, one achieving a pass level and the other a credit – the majority of the other subjects being exempt. It is no wonder he does not find any difficulty in attending the course in Sydney as most subjects were exempt and he never had to travel to Sydney to undertake these at any time. This is not illustrative of a genuine temporary student but someone who is more interested in lifestyle/work engagements than studying”. (emphasis added).

The Federal Circuit Court found that this analysis by the Tribunal was infected by jurisdictional error.

The Court noted that the Tribunal had given considerable weight to the fact that the applicant was living in Canberra, and it found that this consideration had “no logical bearing” on the criterion for the grant of the student visa, namely whether or not the applicant indented to remain in Australia only temporarily as a student.

The Court concluded that  the fact that the applicant had chosen to continue living in Canberra, even though his classes were held in Sydney, did not “logically support”  a conclusion that the applicant was not a genuine student in circumstances where he had been attending 80% of his classes.

There is another interesting aspect of this case which provides useful guidance about how to identify jurisdictional error in a Tribunal decision.

In the materials he had supplied to the Department in support of his student visa application, and in his evidence to the Tribunal, the applicant had claimed that he would have employment advantages in Pakistan as the holder of an accounting degree from Australia, including that having an Australian qualification would enable him to earn a higher salary.

However, in its written reasons, the Tribunal made no reference at all to the circumstances in his home country, Pakistan.

The problem with this omission was that the Direction issued by the Department for assessing whether a student meets the “genuine temporary entrant” requirement provides that one of the factors that must be considered is the circumstances of the applicant in their home country.

The Federal Circuit Court noted that a direction that is made under section 499 of the Migration Act is binding on the Tribunal, and that, under the High Court’s decision in Uelese v Minister for Immigration and Border Protection, a failure by the Tribunal to comply with a direction amounts to jurisdictional error.

The Federal Circuit Court also referred to the decision of the Full Court in the case of Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs, where it was held that if the Tribunal fails to expressly deal with an issue in its reasons, then an inference can be drawn that the Tribunal has failed to consider  the issue.

In Raza, there was the following chain leading to jurisdictional error: the Tribunal did not make any reference to circumstances in the applicant’s home country in its reasons (such as that he would have employment advantages if he completed an Australian degree); the failure to refer to the circumstances in the home country resulted in an inference that the Tribunal had not considered those circumstances; the Tribunal’s failure to  consider those circumstances meant that it had not complied with the Direction concerning the assessment of the GTE criterion; and the failure to comply with the direction equated to jurisdictional error.

It is errors of this kind that reward very close reading of a Tribunal’s decision.

And although an electron microscope is not always needed to detect such errors, I nonetheless renew my offer to loan my electron microscope out – and I promise, the fee for the loan will be outrageous!

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  • Guest
    Jarek Tuesday, 04 July 2017

    Would he be Genuine Temporary Entrant if he would say that he only enrolled into University of Canberra because under Genuine Temporary Entrant Criterion it was easier to get a student visa in first stage and later when he found out that it is easier and cheaper to study at other provider he changed the school? GTE is a joke and only is teaching international students how to use / cheat the "system". If Australian government wants to have genuine students coming here only to study and not wanting to stay afterwards it is easy: take away the permit to work on a student visa, don't give 5 points for study in Australia and don't offer an option of a subclass 485 visa to graduates. In this situation a lot of foreigner students will not consider to come to study in Australia at all but in this situation who will pay to keep universities running?

  • Guest
    Glen Wednesday, 05 July 2017

    If you ask most international students, would they choose the US, UK or even Canada as opposed to Australia for further studies, majority would rate Australia lower than the countries mentioned. Australia does NOT have a reputation for quality education in comparison to the US, UK and Canada. It would be safe to say that one of the advantages of completing studies in Australia for an international student, is the opportunity available for a permanent visa option.

    If it appears that, at the time of decision, an applicant’s primary purpose for applying for a student visa is to obtain a permanent migration outcome or to maintain ongoing residence, and not to obtain an education, consideration may be given to refusing the applicant a visa under this criterion. - GenGuide G

    How subjective is this policy guide? My client's visa was cancelled (received an NOICC) because he mentioned that he loved Australia and after completing his engineering studies, he would like to remain in Australia more permanently. MRT (back then) was lodged and visa was re-instated. The NOICC was responded by my client without consultation from an agent or lawyer, so he was not aware that his response could prove damaging to his student visa status.

    I agree with Jarek, stop dangling the carrot and assume that students should be only seeking a temporary stay while holding their student visa. If the government wants more genuine applicants, then state it clearly, if you are from said country and you do not provide:

      finance (exact amount required prior to an applicant applying) proof of work after completing studies in your own country or significant pay improvements (provide a figure that would be acceptable by the department) work references (with proof of previous income)


    it would be highly likely that you visa application will be refused.

    $560 is easy money for the department to take and refuse, so there needs to be more integrity from DIBP. I wonder how many student visas actually get refused? Every 1000 student visas refused is $560,000 to the department. Sign me up if DIBP ever goes private.

  • Guest
    Nicholas Houston Wednesday, 05 July 2017

    I agree with Jarek. Get rid of work rights, because if you are working 20 hours a week you are distracted from the genuineness of your studies; get rid of the right to bring your partner and kids, as they are distractions; get rid of the studies points and regional studies points as this creates a perverse temptation to be non-genuine; get rid of the 485 as this gives rise to non-genuine temptations; and cut out the pathway to permanent migration, as that is the fleshpot of all fleshpots in terms of creating temptations to come to study for non-genuine reasons.

    The policy is hypocritical.

  • Guest
    Edith Thursday, 06 July 2017

    Yes, that would be a good idea indeed! And then just see a whole industry with all that lovely billions of income collapse, currently employing thousands of Australians directly and providing income source to 10 times more in related fields as far as landlords of investment properties, coffee shops, restaurants, delivery businesses and many more who currently rely on the casual work of students to survive. Lets just see who will remain standing if half a million students and other temporary visa holders in related fields will just decide to pack up and leave overnight, and take those aforementioned lovely billions with them. Even if the mining bust did not toss Australia to recession and we manage hold it through the current immigration overhaul (which is pretty dangerously thoughtless at that already), such a move you suggest it a definitive recipe for the purpose. And would the DIBP actually find this idea a good one to ensure whatever integrity nonsense they cook up next, I would just make myself comfy in my couch and get the popcorn, as this will be one heck of a train wreck to watch!

  • Guest
    0210699 Lesley Wednesday, 05 July 2017

    Hello Michael,
    thank you for your helpful blog.
    Can I ask a question on a related issue regarding GTE and work for "member of family/guardian". Family of 4 with UK passports on 457 visas. Parents now 55 and kids are 22(working, not studying) and 12 years. Can the whole family become members of the family unit if the 12 yr old goes into a private school ? Previously she was in state school ( not paying international fees ). I believe the 22 yr old cannot on the younger sister's 500 and would need his own s/c 500. Reason I ask is that the father wants to work and I see no work on student guardian visa. If all this is correct what issues do you see regarding GTE?

  • Guest
    MAgent Thursday, 06 July 2017

    If a client expresses interest that he/she wants to apply for a permanent visa after their degree and relevant work experience at the time they apply for a student visa are they a genuine temporary visa applicant?

    Likewise if a client married to an Australian applied for a tourist visa to determine if they wanted to stay and live in Australia before applying for a partner/spouse are they a genuine applicant for a visitor visa?

  • Guest
    Nisa Monday, 30 October 2017

    Hi Michael
    Recently my student visa has been refused by DIBP I'm currently studying diploma in leadership and mgt in Hobart hoping to apply for 190 or 489 visa after completion of my course but now I have to appeal in AAT
    My concern is can I be able to apply 190 or 489 during this period if my course is completed before the AAT decision
    Also do I have to do offshore for those visa
    And what are the better option for me to continue my stay in Australia plz suggest me

    Thx you
    Nisa

  • Guest
    Michael Arch Tuesday, 31 October 2017

    Readers are requested to note that the Migration Alliance Website does not provide legal advice or migration assistance in reply to questions posted int he comments section of the Website. If you have a question about your personal circumstances or if you require migration assistance, please contact help@migrationalliance.com.au for a referral to a Registered Migration Agent or migration lawyer.
    Readers should note that this commenter has indicated that she/he has apparently had a visa application refused while onshore. It will be necessary for this commenter to seek advice in the first instance as to whether any further visa application would be barred under section 48 of the Migration Act.

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