Australian Immigration Daily News

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.

The Court also determined that the MRT had fallen into error by determining that the visa holder was not a “genuine student” because he had not made enquiries with the Department to find out whether the “no study” condition that was imposed by his bridging visa could be waived. 

Additionally, the Court concluded that it was not open to the MRT to make “assumptions” either that the Department had power to waive the “no study” condition or that the visa holder would have had prospects of having that “no study” condition removed had he pursued a request that the Department do so.

In this respect as well, the Court saved the visa holder from another “Catch-22” situation created by the MRT’s reasoning, namely, losing his student visa by failing to ask the Department to do something (remove the no study condition from his bridging visa) when there was no evidence before the Tribunal that it was within the Department’s powers to remove the no study condition.

The great irony of this case is that the evidence that was before the MRT suggested that there were in fact ample grounds to support the cancellation of the student visa, leaving aside the matters that the MRT incorrectly relied upon!!

The facts of the case were that the visa holder had originally entered Australia on a student visa in 2010. The visa was subject to Condition 8202, which required the visa holder to be enrolled in a “registered course”.  His history in Australia was that he had undertaken what was described as only “very limited” study, involving a seven month Certificate IV course in business, and had not been enrolled in any registered courses for about 6 months at the time that his student visa was formally cancelled.

On appeal, the Federal Circuit Court determined that the MRT had been wrong to consider that the visa holder had not studied during the period when he remained in Australia on a bridging visa (in other words, during the pendency of his appeal to the MRT) as evidence that he was not a genuine student.  In other words, in the Court’s view, it would have been proper for the MRT to confine its consideration only to the time period when the visa holder had a visa which actually entitled him to lawfully pursue studies.

So in effect, the Court’s holding was that an adverse finding should not have been made against the visa holder for not breaching the no study condition of his visa. To put it another way, the Court ruled that it should not have “been held against” the visa holder that he did not “break the law” by continuing to study when his bridging visa expressly forbade him from doing so.

The Court also determined that the MRT should not have made negative findings concerning whether the visa holder was a “genuine student” due to his failure to make inquiries with the Department about the possibility of having the no study conditions lifted from his bridging visa.  In the Court’s view,  it was simply not “open” to the MRT to “assume” that the Department had the legal authority to remove the no study condition from the bridging visa, or that the visa holder would have had “sufficient prospects” of having the condition removed if he had approached the Department.  The Court held that such findings could be made only on the basis of evidence or facts, and could not be based on pure “assumptions” about what might or not be the true circumstances of the case.

This decision from the Federal Circuit Court provides important lessons for RMAs concerning conducting of review proceedings in the MRT, and about the circumstances where “jurisdictional error” may exist - thus creating the possibility of a successful appeal to the Federal Courts.  

Firstly, adverse findings should not be made by the MRT against visa holders based on their failure to contravene conditions in their visas. Secondly, when either the Department of the MRT draw conclusions that are based on bare assumptions, and are not supported by evidence, those conclusions are vulnerable to challenge. In cases like this, an appeal can be taken to the Federal Circuit Court and an unfavorable decision of the MRT can be reversed or “quashed”.

This blog post was prepared by Michael Arch, Concordia Pacific Migration Lawyers, Email: This email address is being protected from spambots. You need JavaScript enabled to view it. , TeL: (02) 8068 8837