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!