Australian Immigration Daily News

The Federal Circuit Court has ruled that applicants for student visas who intend to rely on bank loans to pay for their living and school costs do not need to provide evidence that they have had regular income sufficient to accumulate the loan funds.  

Although the decision – Saji v Minister for Immigration & Anor (2015) FCCA (7 May 2015) - was handed down in the context of an appeal against the refusal of an application for a subclass 572 (Vocational Education and Training Sector) student visa, it has broad applicability to other types of student visas for which evidence of the availability of funds to meet these expenses is also required (e.g. subclass 570 (Independent ELICOS Sector); subclass 571 (Schools Sector); subclass 573 (Higher Education Sector), etc.

If this case is a representative example of the administrative practices that the Department has been following, and the Department has in fact routinely been requiring student visa applicants who are planning to finance their costs through bank loans to show that they have had regular income to accumulate funds in the amount of the loans – then the Department has been misinterpreting and misapplying the regulations!

Issues concerning sexual abuse of children and removing people who are seen to pose a risk to the Australian community have been very prominent in the news media in recent weeks. The on-going enquiry of the Royal Commission into Institutional Child Sexual Abuse, and the Abbott Government’s proposals to strip Australian citizenship from dual nationals who fight for the “Islamic State” have certainly brought considerable public attention to both of these issues.  

Indeed, my own article on the Migration Alliance blog concerning the case of Gjoubeh v Minister for Immigration and Border Protection (2015) FCAFC 883, in which the Full Court of the Federal Court affirmed the Minister’s decision to cancel a humanitarian visa held by a foreign national who was convicted of raping a minor child undoubtedly prompted the most passionate commentary from readers of the blog than the discussion of any other case that I have reviewed. 

It is therefore both timely and worthwhile to discuss a recent decision of Justice Logan of the Federal Court which overturned the Minister’s decision to cancel a visa held by another person who was convicted of a sex offence, Stretton v Minister for Immigration and Border Protection (No 2) (2015) FCA 559 (5 June 2015). 

The Federal Circuit Court has ruled,in a decision that has importance for RMAs beyond the specific facts of the case, that the MRT erroneously affirmed the Department’s cancellation of a student visa. See Mirdan v Minister for Immigration & Anor, (2015) FCCA (24 April 2015).

The MRT’s decision was based, in part, on its finding that the visa holder was not a “genuine student” because he had not studied in Australia after the time that his student visa was cancelled, during a time period when he held only a bridging visa that contained a “no study condition”. 

The Court’s decision in this case therefore saved the visa holder from a “no-win”, Catch-22” situation where it would have been possible to avoid an adverse finding by the MRT only by contravening the conditions of his bridging visa.

A very intriguing decision by Judge Driver of the Federal Circuit Court, Angkawijaya  & Anor v Minister for Immigration & Anor (2015) FCCA 450 (20 April 2015), provides fresh guidance to Registered Migration Agents and visa applicants concerning the evidence that is necessary to successfully get a Partner Visa application “over the line”. 

Interestingly, the case holds that it is not necessary to demonstrate that the relationship is based on “romantic love”.  

Perhaps it is possible that Judge Driver was listening to Tina Turner’s famous anthem on the radio before writing this decision, and hearing the song again for the umpteenth time confirmed the judge’s view that the answer to the question asked in the lyrics “What’s love got to do with it?” is “not much at all, if anything!” (at least for the purposes of migration law of course!).  So perhaps the judge would agree with Tina that, where the criteria for grant of a Partner Visa are concerned, love is truly nothing more than “a sweet old fashioned notion”!

In recent articles on this blog, I have reviewed decisions of the Administrative Appeals Tribunal in which appeals were taken against Departmental decisions to refuse Australian citizenship on the basis of findings that the applicant was not of “good character”.  In one of these cases, FBMR and Minister for Immigration and Border Protection, (2015) AATA 116 (2 March 2015) an applicant’s failure to accurately disclose his extensive record of serious criminal convictions in New Zealand on his “incoming passenger card” proved fatal to the application. In a second case, Hasib v Minister for Immigration and Border Protection (2015) AATA 82 (13 February 2015), a number of mitigating factors weighed against the applicant’s history of having committed 10 offences involving credit card fraud while in Australia including the fact that the applicant was subject to duress when he committed the offences) and the applicant was able to have the refusal of his application set aside.

In this post, I look at a third case, decided on 1 April, where the applicant’s criminal record consisted only of two traffic offences.  The case, Thuraisamy and Minister for Immigration and Border Protection [2015] AATA 202 demonstrates that minor driving offences are not likely to disqualify a person from Australian citizenship.

The applicant in this case originally arrived in Australia from Sri Lanka as an “unauthorized maritime arrival” and spent time in immigration detention before being granted a Protection Visa.  The driving offences that led the Department’s officer to determine that the applicant was not a person of “good character” included an incident involving “drink driving” in which his blood alcohol level was found to be .034 percent.  Although he was initially convicted of this offence in a NSW Local Court, fined $200 and disqualified from driving for 3 months, the conviction was quashed on appeal to the District Court and the applicant was placed on a “good behaviour bond” for a period of 18 months.  As it turned out, at the time of this first offence, the applicant held a “special category driver’s licence” which prohibited him from having any alcohol in his system, but he was in fact entitled to hold an unconditional licence based on his driving experience before coming to Australia. Had the applicant held this unconditional licence, his blood alcohol level would have been below the legal limit of .05, and no offence would have been committed.

The second driving offence occurred two weeks after the drink driving incident and involved speeding at 140 km/hour in a zone where the speed limit was 110.  The applicant received an “on-the-spot” fine of $800 for this offence as well as a 3 month suspension of his driving licence. However, in his evidence before the Tribunal the applicant explained that the circumstances underlying this offence were that a passenger in his car had been complaining of stomach pains and that he had been speeding in order to get the passenger to a rest facility as quickly as possible.

The AAT was not persuaded that these two driving offences were enough to show that he was not a person of good character, and it therefore set aside the Department’s decision to refuse the citizenship application.  The factors that tilted the balance in the applicant’s favour before the AAT included that he had no other criminal record, that other than these 2 offences the applicant had an “unblemished” driving record (leading the AAT to view the offences as “regrettable exceptions”), that he had a solid working record since being released from immigration detention involving working as a cleaner in a public school and as a carer for disabled people, and that he was able to provide numerous positive references to the AAT.

The outcome here illustrates that a Departmental decision to refuse the grant of Australian citizenship on character grounds can be successfully challenged in circumstances where the Department fails to undertake a considered, nuanced assessment of the applicant’s character.  The Australian Citizenship Instructions require Departmental officers to consider whether an applicant’s criminal record is “serious” or “minor”. Under the ACI  (10.5.2) serious offences include matters such as crimes of violence, war crimes, drug trafficking, and crimes against children, while traffic offences, and offences which do not lead to a conviction or sentence, are categorised as “minor offences”. 

It appears plain that in this case that the Department misapplied the guidelines of the ACI, incorrectly identified offences which were clearly minor to be a basis for an adverse character finding, and wrongly refused his citizenship application.  The case shows that when the Department makes a character decision that does not take into account the full circumstances of an applicant’s criminal record (including of course the nature of the offences) and determines a matter in a way that conflicts with the ACI, the decision can be successfully challenged on appeal to the AAT.

This article was prepared by Michael Arch, Concordia Pacific Migration Lawyers, MARN 1386469, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.  Tel: (02) 8068 8837 Web: concordialaw.com.au