Australian Immigration Daily News

Suppose the AAT fails to consider certain evidence that is put to it. 

Does that amount to jurisdictional error, by itself? And does it provide a basis to get the decision of the AAT “quashed”, or overturned, in the Federal Circuit Court? 

A recent decision from the Federal Court – Liew v Minister for Immigration and Border Protection (2016) FCA 172 (2 March 2016) (Judge Rangiah) tells us: “It ain't necessarily so!” 

If the evidence is not directly relevant to the specific question that is before the Tribunal for determination, then it may very well not matter at all if the Tribunal disregards that evidence. 

The issue that was before the Tribunal in the Liew case was whether the visa applicant had complied with a condition of her previous student visa. The condition at issue was Condition 8202(2), which required the visa holder to be enrolled in a registered course. Compliance with this condition was important because a criterion of the “further” student visa that the applicant was seeking (clause 572.235) required that for applications made on-shore in Australia, the applicant demonstrate that she had “substantially” complied with the conditions of her original visa. 

On the face of the situation, the applicant in Liew was “in strife”. She had, in fact, originally been enrolled in a diploma course in tourism at a vocational college. However, information held in the Department of Education's Provider Registration and International Student Management System (“PRISMS”) indicated that her enrolment had been cancelled for “disciplinary reasons” in July 2010. She then re-enrolled in the same course about 6 months later, in January 2011. However, her enrolment was then cancelled again in February 2011 “for non-commencement of studies”. She did not re-enrol in another course until July 2011. 

On this material, the Tribunal concluded that the applicant had not been enrolled in a registered course for more than 10 months out of the total period of her previous student visa of 17 months. The Tribunal therefore concluded that the applicant had, in fact, substantially breached the condition that required her to be enrolled in a registered course. For that reason, it affirmed the Department's decision to refuse the grant of the further student visa. 

The applicant sought to explain her alleged non-compliance with Condition 8202 by sending 2 emails to the Tribunal. In the first of these emails, she stated that during the period from 17 July 2010 – 21 July 2011 she had been heavily pregnant and had then been busy looking after her newborn daughter. In the second email, she said that she could not study because she was pregnant and that after her daughter had been born, she could not study because she was not in good health and needed to care for her daughter. 

In the proceedings before the Federal Court, it was taken to be an established fact that the Tribunal had not taken either of these emails into account when reaching the conclusion that the applicant had not substantially complied with Condition 8202. 

Why then, did Judge Rangiah decide that the Tribunal's failure to consider the email did not amount to reversible jurisdictional error? 

The reason was that the Tribunal had distinguished between the concepts of “attendance at class” and “enrolment”. The Tribunal had accepted that the applicant's pregnancy and need to care for her child as an explanation for her failure to attend classes. However, at the same time, it was the Tribunal's view that the applicant had not explained why she could not have maintained her enrolment (in other words, why she could not have continued to be registered for a registered course).

So it was the Court's holding because the emails relating to the applicant's pregnancy and need to care for her daughter were directed toward explaining why she had not attended class, and were not, in the Court's view, directed toward explaining why she had not continued to be enrolled in a registered course, they were not relevant to the critical question in the case – namely, had the applicant complied with the condition in her previous visa that required her to remain enrolled. 

Consequently, the Court ruled that the Tribunal had not fallen into jurisdictional error by failing to take the emails explaining the reasons for the applicant's failure to attend classes. In other words, because, in the Court's view, the emails did not address the reasons why the applicant had not continued to be enrolled, they were irrelevant. 

Well, here's a question for you: the applicant's enrolment in her course had been cancelled due to “non-commencement of studies”. So why would not the reasons for her failure to attend courses (her pregnancy, claimed poor health and need to look after her daughter) not be equally “relevant” to the reason why she had not remained enrolled? 

That specific question was not addressed in Judge Rangiah's written judgement. It was simply taken as a “given” that evidence going to the question of why the applicant hadn't attended classes was not relevant to the question of why she had not maintained her enrolment. 

There was a suggestion in the Tribunal's decision about a strategy that the applicant might have adopted to avoid the result of having her application for a further student visa refused. The Tribunal had noted in its reasons that the applicant had not contacted the Department for advice about her situation, and that she had not sought a deferment in her enrolment due to her pregnancy and child care responsibilities.

Perhaps it would have been the case that if the applicant had taken either action, she would have been able to persuade the Department or the Tribunal that she had not substantially breached the condition requiring her to remain enrolled in a registered course, and that she could therefore have succeeded in obtaining the further student visa.

Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.