Australian Immigration Daily News

It is “so so so” important that the Administrative Appeals Tribunal (formerly the Migration Review Tribunal) “get the facts right”!

And when it doesn’t, the mistake about the facts can cause the AAT to commit “jurisdictional error” which can in turn prompt the federal courts to “quash” (overturn) the AAT’s decision.

That this is “so” was illustrated by a judgment of Judge Manousaridis of the Federal Circuit Court in the recently-decided case of Srestha v Minister for Immigration & Anor (2015) FCCA 22262 (28 August 2015). 

The outcome in this case provides a reminder for RMAs who have assisted clients in proceedings before the AAT that “all is not lost” if the case is lost before the AAT.  It is essential that the reasons given by the Tribunal be carefully scrutinized to assess whether it contains erroneous factual findings. If the AAT has made a factual error concerning the evidence that was before it, and if that error was “so” significant that it could be said that it materially affected the outcome arrived at by the AAT, then the AAT’s decision may very well be vulnerable to challenge!  So thankfully, there is another stage beyond the AAT where a client’s rights can be vindicated, and their right to remain lawfully in Australia to continue with their studies or to work or live can be vindicated.

The Srestha case that is reviewed in this post involved an application for review of the cancellation of a student visa. 

The background of the case was that on 20 August 2013, a Departmental officer sent the visa holder a notice of intention to consider the cancellation (“NOICC”) of his Higher Education Sector student visa.  The visa holder was given an opportunity to respond to the NOICC, and so, on 26 August 2013, he replied to the Department with a letter that gave an account of his study and personal history in Australia.  However, the Department nonetheless saw fit to cancel his student visa.

According to the visa holder’s letter, and also according to the account he gave to the AAT in the form of a statutory declaration, he originally arrived in Australia in October 2008 and started to study for a diploma of business management.  He claimed that he was then enrolled in a bachelor’s degree course, from March 2012 – June 2012. However, he apparently temporarily stopped studying in June 2012, after he received a telephone call from his mother during which he was informed that his father had a serious health problem. He claimed in his stat dec that he had become depressed and anxious about his father’s condition after this phone call, and also that he had been told by his parents that they could no longer send money for his tuition fees. The visa holder further claimed that his father’s medical condition improved and that he ultimately enrolled in a new diploma course that was scheduled to start on 12 August 2013. 

It was of critical importance to the outcome of the case that the certificate of enrolment for the new course was generated by the education provider on 9 August 2013, before the date that the NOICC  was issued by the Department (again, the date that the NOICC was issued was 20 August 2013).

In the review proceedings, however, the MRT erroneously concluded that the visa holder had enrolled in the new course after he had received the NOICC from the Department.  This factual mistake apparently caused the Tribunal to take a very dim view of the visa holder’s credibility.  In its reasons for affirming the Department’s cancellation of his student visa, the MRT stated that: “the only reason that the (visa holder) enrolled in a course in August 2013 was to assist him in the visa cancellation process and not because he is genuinely interested in studying”.  The MRT was also of the view that the fact that the visa holder had enrolled in the new course “at the same time” that he received the NOICC  indicated that the visa holder’s failure to re-enroll  in a course during the period from June 2012 – August 2013 was not caused by the depression which he claimed to be suffering.

Judge Manousaridis of the Federal Circuit Court concluded that the MRT’s factual mistake in determining that the visa holder had enrolled in the new course only after he became aware of the NOICC was a “jurisdictional error”. It was Judge Manousaridis’s view that the incorrect factual finding by the MRT was a jurisdictional error because the finding was “unreasonable” in the sense that “no rational decision-maker” could have arrived at a determination that the visa holder knew about the NOICC before he re-enrolled in a course. That finding was simply not open to the MRT because the evidence clearly demonstrated that the certificate of enrolment had been generated before the NOICC had been issued by the Department.  Judge Manousaridis held that because the MRT’s  finding was not “within a range of possible, acceptable outcomes which are defensible in respect of the facts”, it amounted to jurisdictional error.

Additionally, Judge Manousaridis ruled that the factual error by the MRT concerning whether the visa holder was aware of the NOICC before he re-enrolled in a course was one that was sufficiently significant that it could have materially affected the outcome of the MRT’s  review.  It was the judge’s  opinion that the error had affected the Tribunal’s assessment of the visa holder’s credibility, and had thus led the Tribunal to “disbelieve” the visa holder on “core elements” of his case (presumably that he had failed to be enrolled in a course between June 2012 – 2013 because he was suffering from depression and because of his father’s health condition and the family’s consequent financial difficulties). 

Further, Judge Manousaridis took the view that the MRT’s  error had caused it to give no weight whatsoever to the fact that the visa holder had enrolled in the new course.  The judge observed that if the MRT had taken a different approach to the evidence, and had assigned significance to the new enrolment, it was entirely possible that it might have reached a different decision concerning whether to affirm the visa cancellation.

“So”, the lesson to be taken away from this decision is that if the MRT makes a factual finding that is in conflict with, or has no support in the evidence, and that mistake is sufficiently serious that it has the potential to change the outcome, then the Federal courts may well conclude that the MRT’s decision was “infected” by jurisdictional error and overturn it!

Concordia Pacific Migration Lawyers, Email: This email address is being protected from spambots. You need JavaScript enabled to view it. , Tel: (02) 8068 8837