Australian Immigration Daily News

Some times, you just can win no matter what you do!

And that is true even in circumstances where the application of the migration legislation may appear to work an “unjust result”!

A case that recently came before the Federal Court, Ahmed v Minister for Immigration and Border Protection (2015) FCA 1059 (1 October 2015) provides a graphic illustration of how this can happen.

The situation in this case was that Mr Ahmed was in Australia as the holder of a student visa.  The visa was subject to “Condition 8202”. The condition provided that the visa holder would be in breach if the relevant education provider had certified that he had not achieved “satisfactory course progress”.

As it happened, Mr Ahmed had failed to attend his classes “due to exceptional circumstances beyond his control”.  Consequently, his student visa was cancelled.  However, Mr Ahmed successfully applied for revocation of the cancellation of the visa.  After the visa cancellation was revoked, he was advised that he could attend an office of the Department and apply for a new visa.  However, when he attempted to apply, his application was refused by the Department under clause 573.235 of the Regulations. This clause made it a criteria for the grant of a student visa that the applicant must have “complied substantially” with the conditions of any previous visa. The Department took the view that because Mr Ahmed had previously failed to comply with Condition 8202, he was unable to satisfy clause 573.235.

It thus became a matter for the Federal Court to determine exactly what the legal effect was of the revocation of the student visa cancellation. Mr Ahmed’s lawyer argued that the cancellation of the revocation meant that the effect Mr Ahmed’s previous failure to attend his courses was “spent” – in other words, that the breach of Condition 8202 could not, following the revocation of the cancellation,. Be relied upon as a reason, under clause 573.235, for withholding the grant of a further student visa. Alternatively, it was submitted on behalf of Mr Ahmed that the effect of the revocation of the cancellation was to “erase” his previous failure to attend his classes, and that he should be “deemed” to have substantially complied with the conditions of his visa. 

Unfortunately for Mr Ahmed, these arguments were not accepted by the Court.  The Court had regard to section 137P of the Act, which provides that the legal effect of the revocation of the cancellation of a student visa is only that “the visa is taken never to have been cancelled”.  However, the Court ruled that the revocation of the cancellation did not have the consequence of “curing” the underlying failure to attend courses or achieve satisfactory progress.  

Therefore, the fact that Mr Ahmed was able to get the revocation of his student visa cancelled was the ultimate “pyrrhic victory”.  The revocation did not “clear his compliance record”, and thus did not prevent the previous certification that he had not achieved satisfactory course attendance from being used against him as the basis for refusing him a further student visa.  And in the view of the Department and the MRT, the simple fact that Mr Ahmed had not complied with the condition requiring him to achieve satisfactory progress in his courses was reason enough, by itself, to preclude the grant of a further student visa  and to find that there was “no discretion” to take into account the underlying reasons why Mr Ahmed had failed to attend  (and thus to take into consideration that the “non-attendance” had been caused by “extraordinary circumstances beyond his control”).

It does seem from reading this judgment that Mr Ahmed was the victim of a “Kafka-eque” bureaucratic scenario.  Although he was able to secure a reversal (a revocation) of the cancellation of his student visa, when he followed the advice to re-apply for a new visa, he discovered to his misfortune that the cancellation of the revocation had only limited legal effect.  The revocation was not enough to prevent the certification that he had failed to achieve satisfactory course attendance from being “held against him” for a second time, and preventing him from getting a new student visa.

Reading this case, one is left with an inescapable sense that some fundamental injustice appears to have been done by the application of the legislation.  If indeed, a person’s failure to achieve satisfactory course attendance is truly due to circumstances beyond her/his control, then why then does it make any sense to continue to use that non-attendance as the basis for withholding a student visa? Should it not be the case that there should be some room for flexibility and discretion to account for the human realities of the situation, and for some “compassion” to be extended to reflect that the failure to attend courses was not intentional?

There does appear, at least, to have been a “silver lining” to this case.  The Court’s judgment records that Mr Ahmed ultimately did complete the course in which he was enrolled – albeit apparently while he was on a bridging visa pending the determination of his application for judicial review of the refusal of his student visa! Thus it seems that the case really did come “full circle”, and whatever rigidity or absurdity came into play in this case through the application of the migration legislation did not ultimately prevent Mr Ahmed from achieving his goal of completing his course of studies!

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