Australian Immigration Daily News

Is there anything you can do if the Administrative Appeals Tribunal refuses to grant your client an adjournment which would make it possible to provide information which demonstrates that the client satisfies the criteria for the grant of a visa? 

What if the issue that is of concern to the Tribunal only comes up during the Tribunal’s hearing?

And what if the Tribunal refuses to grant an adjournment not because it is unsure that the applicant can supply the information which would satisfy the particular criterion for grant of the visa, but instead, the Tribunal refuses to grant the adjournment because it harbours “doubts” about whether the applicant satisfies a different, unrelated criterion?

These issues all came into play in a case that was decided by the Federal Court earlier this year, Pathak v Minister for Immigration and Border Protection (2015) FCA 683 (21 May 2015).

And the answer that can be found from this judgment is that if the Tribunal refuses an adjournment “unreasonably” – and as a consequence affirms a Departmental decision to refuse a visa – there is something meaningful that you can do:  You can make an application for judicial review to the Federal courts, get the Tribunal’s incorrect decision “quashed”, and get the case sent back to the Tribunal for re-determination.  When the case goes back before the Tribunal you can present the information or documentation that was identified to be relevant at the Tribunal hearing, and, all things being equal, demonstrate to the Tribunal that your client is entitled to the visa.

To illustrate how this can happen in practice, let us take a look at the facts that were presented to the Federal Court in the Pathak case.

The background of the case was that the applicant was seeking a student visa.  The applicant’s original application had been made in December 2010 and had been refused by the Department in March 2011. This initial refusal was appealed to the Tribunal. That initial hearing before the Tribunal (apparently held at some time around April 2012) “miscarried”   and the applicant’s case was sent back to the Tribunal for re-hearing.  A second hearing was then scheduled before the Tribunal in May 2013.

Before this second hearing, the Tribunal sent a letter to the applicant inviting the applicant to submit information to show that she was able to meet the “financial capacity” requirements for a student visa, to pay for her tuition and living costs, etc. The letter from the Tribunal stated that the Department had originally requested the financial information in December 2010. The letter also said, in bold type, that the Tribunal would “seek to make a decision at the conclusion of the hearing”.

At the time of the first hearing before the Tribunal, in April 2012, the applicant had presented documentation which demonstrated that her cousin was promising to provide her with financial support up to $100,000. However, prior to the second hearing, in May 2013, she provided a new statement from the cousin stating that he had bought a house and was thus guaranteeing the applicant financial support of only $65,000.

During the hearing before the Tribunal, an issue came up that the applicant had not previously known about. The Tribunal member went over the financial requirements for the particular visa that was being sought. It turned out that the actual requirement was that the applicant demonstrate that she had funds in the amount of $94,600 for the first 24 months of her course – in other words, an amount greater than the $65,000 in support that the applicant’s cousin was guaranteeing to provide.

At the close of the hearing, the Tribunal member asked the applicant whether there was any reason why it should not make a decision concerning her application on that day. The applicant replied that her cousin was ready to provide the necessary level of support for her student visa, and that she could provide evidence of his commitment to provide the funds. 

However, the Tribunal refused to grant the applicant an adjournment in order to enable her to present the financial information to the Tribunal. The Tribunal stated that the reason that it had refused the adjournment was that it had concerns about a second issue – whether the applicant was a genuine applicant for entry and stay in Australia as a student – and that it did not wish to falsely raise the applicant’s expectations of a successful outcome by granting an extension of time to provide additional financial information.

The Tribunal did not go any farther than to state that it had “doubts” about whether the applicant was a “genuine applicant for entry and stay as a student”.  It made no findings on this issue.

The Tribunal did, however, proceed to make a decision immediately at the close of the hearing to affirm the refusal of the visa. The Tribunal issued its written reasons for affirming the refusal 11 days later.

The Federal Court concluded that the Tribunal’s refusal to grant an adjournment to allow the applicant an opportunity to submit the information to demonstrate that she could meet the financial requirements was “unreasonable” in the “legal sense”.  The Court concluded that it was snot reasonable for the Tribunal to rely on its doubts about whether the applicant was really a “genuine student” (and again, about which it had made no actual finding) as a basis for refusing the adjournment. Furthermore, the Court considered that it was in appropriate for the Tribunal to insist on making a decision on the day of the hearing. It was the Court’s view that the proper course would have been for the Tribunal to reserve its decision after the hearing and to afford the applicant an opportunity to submit the financial information in question.

In summary, the Court found that by refusing the adjournment, the Tribunal had failed to fulfill its obligation to conduct the merits review in a way that was “fair and just”.

The lesson of the case: When an issue that is relevant to the determination of a visa application comes up for the first time at a hearing before the Tribunal, it is certainly reasonable to ask the Tribunal to grant an adjournment – even for a short period of time – to enable the relevant information to be provided.  If the Tribunal does not express doubt that the applicant can provide the information in question, but nonetheless insists on deciding against the applicant without granting an adjournment, it may well be possible to get the Tribunal reversed.

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