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Student Visas: Must Study Be Sole Purpose?
There are times when you read about a migration case and when you get to the end of the story you can feel nothing but complete sympathy for the applicant, even if, strictly speaking, the decisions made by the Department, the Tribunal and the Federal Circuit Court might have been “legally correct”.
Perhaps in those types of cases, in just happens to be the case that there might not be a migration pathway that suits the applicant's circumstances.
And when you read about a case like that you wonder: Is there really not a better way? Shouldn't there be some way to harmonise what our instincts may tell us should be the humanistic and compassionate approach with the framework of the Migration Act and Regulations? Or would the system collapse into an incoherent and unintelligible mess if there is too much room for “flexibility” and sympathy in taking into account the particular circumstances of an applicant and their family?
A prime example of the kind of case which can cause one to ponder these considerations was a decision handed down by Judge Heffernan of the Federal Circuit Court on 10 May in Mehmeti v Minister for Immigration & Anor (2016) FCCA 1057.
The circumstances in the case were as follows: the applicant was a woman who was born in Albania. She was a citizen of Italy. She originally travelled to Australia in August 2012 on a “tourist visa”, with her three children. At the time, she was estranged from her husband (also the childrens' father), who was living in Australia. The purpose of this visit was for the children to see their father, who they had not seen for two years. After the applicant arrived in Australia, she reconciled and “re-partnered” with her husband.
The precise visa status of the father is not identified in the Court's judgment. Evidence concerning his status was presumably not brought forward before the Tribunal. In any event it was not clear whether he was working in Australia under the authority of a temporary work visa or whether he was an Australian citizen, permanent resident or eligible New Zealand citizen.
It appears (again it is not clear) that the husband/father was “none of the above”.
For it would seem that if he were, the obvious course would have been for the applicant to have sought a partner visa (or for the members of the family unit to be included in his temporary work visa (457?)) if he held such a visa. The Court's judgment recites that the applicant had not applied for a partner visa, so, for whatever reason, that option must not have been open to her.
So, the visa pathway that the applicant did pursue was for a student visa.
And, extremely unhappily for the visa applicant and her family, that student visa application was refused by the Department, and the Court ultimately concluded that the Tribunal had not committed jurisdictional error when it affirmed the Department's decision.
So what went wrong with the student visa application?
It was found by the Tribunal that the applicant did not satisfy the criterion of clause 572.223(1)(a) of the Regulations that she be a genuine applicant for entry and stay in Australia as a student.
The evidence that weighed against the applicant before the Tribunal was as follows: the applicant applied for the student visa in September 2012, very shortly after her arrival in Australia with her children in August 2012. Through her application, she proposed to study for a Diploma of Hospitality. In her application, she stated that she wanted to pursue this course of study because cooking was her passion. While she held a certificate as a result of having completed a course as a cook in Albania, she had not worked in a commercial kitchen since 1998. It also weighed against her in the Tribunal's eyes that she had not undertaken any study in hospitality during the 23 month period between the time that she had lodged her visa application and the Tribunal hearing. (At the hearing, the Tribunal member indicated that the fact that the applicant had not started studies might cause him to take the view that she was not a genuine applicant for entry and stay as a student). It also counted against the applicant that at the hearing she had candidly stated that when asked why she wanted to study in Australia that the original purpose of her trip here with her children had been to enable them to see their father, that they wished to remain close to him, and that being the case, she wished to “follow her own road” while in Australia by studying hospitality.
In their application for judicial review, the applicant's lawyers contended that the Tribunal had committed jurisdictional error by superimposing as an “essential criterion” for the grant of a student visa that the proposed course of studies must be the “sole or primary purpose” for the travel to Australia.
Judge Heffernan held that if the Tribunal had imposed a requirement that the proposed study must be the sole or primary purpose, that would have amounted to jurisdictional error.
However, in Judge Heffernan's view, what the Tribunal had actually done was to carry out an assessment as to whether the applicant was a genuine applicant for entry and stay as a student. Judge Heffernan found that in carrying out this exercise, it was appropriate for the Tribunal to weigh up the various factors in the case, and to focus on the present status of the applicant’s relationship with her husband and her desire that her children continue to have a meaningful relationship with their father. Indeed, Judge Heffernan found that the Tribunal was obliged to have regard to Direction 53 (Assessing the Genuine Temporary Entrant Criterion for Student Visa Applications) and to give weight to circumstances which suggest that the visa is being sought primarily for maintaining residence in Australia, and not to enable a temporary stay for the purpose of study.
So, to summarise the holding of the case, it is that: While it is not necessary that the proposed course of study be the sole or primary purpose of the applicant's wishing to be in Australia, it is nonetheless proper for the Department and the Tribunal to examine whether the applicant's underlying motivation for seeking the student visa is to be able to continue residence in Australia.
There is a valuable practical lesson to be taken away from the outcome in this case: if a person is seeking a student visa, it will certainly buttress their case if they enroll in a course and engage in their proposed course of study while they are awaiting a hearing against the refusal of their student visa application before the Tribunal. That evidence would undoubtedly help persuade the Tribunal that the person does indeed indent to study in Australia, and that they therefore meet the criterion of being a genuine applicant for entry and temporary stay in Australia as a student.
The story in this case also raises another question: Suppose the applicant's husband had become an unlawful non-citizen and that was the reason why he was not in a position to sponsor his wife and children for a partner visa after their relationship was restored. Should Australia's migration laws have some additional provisions for “amnesty” for unlawful non-citizens that would enable them (after some period of time?) to sponsor their immediate family for migration to Australia?
Such an approach would clearly cut against the seeming present consensus to take a “tough stand” against unlawful non-citizens. But is a “tough approach” the “right approach”? Is it too “inflexible” or “harsh”? Should there be some “compassionate” pathway to enable unlawful non-citizens to get on a path to lawful status and to re-unite with their families?
The comments section is available for you to state your views!
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Comments
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Tuesday, 17 May 2016a wife is here with her kids from overseas for a long time recently applied for a student visa & deemed not to be a genuine student to be with the kids father who is said to be unlawful so he cant sponsor them . if the father is unlawful why are they the wife & kids allowed to stay here what are the immigration laws for. If the father is lawful & he did not apply to sponsor the wife & kids should not be allowed to stay here Am i lacking in compassion or is it because kids are involved do not mislead tell the truth & apply for the correct visa , or just let everybody try to rort the immigration laws please help me understand this as it seems clear cut to me
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Tuesday, 17 May 2016
The court's decision did not state that the father was "unlawful", only that the mother had not applied for a partner visa for reasons unknown. So, as "outsiders" to this litigation, we do not know with certainty why the mother in this case chose to pursue a student visa rather than a partner visa. It certainly appears to be likely that the father was not an Australian citizen or permanent resident, but without more information in the Court's judgement, we simply can't know what the true circumstances were. In any event, there is a larger question here, which is whether there should or should not be any pathway by which someone who has become an unlawful non-citizen can regularise their status beyond the limited options now available. Should unlawful non-citizens remain forever in the shadows of Australian society and possibly separated from their families? I invite further comment from readers!
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Tuesday, 17 May 2016
Father is unlawful, mother chosen to use student visa option as a back door to entre and remain in this country for her true intention of reunite with her husband is a different story.
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Wednesday, 18 May 2016
What I see as wrong in the determination that the applicant should be enrolled in a course of study while waiting the decision from Immigration or the MRT is the condition imposed on the Visitor Visa which prevents study for more than 3 months.
If the applicant did commence study they would have to stop after 3 months to avoid breaching this visa condition. I see no mention of this in the decision meaning the applicant has been unnecessarily punished for following the conditions of the Visitor Visa -
Thursday, 19 May 2016
I agree with Paul, under above circumstances applicant will carry visitor visa condition on BVA during review of refusal of decision. technically, she was punished for complying with visa condition - no more than 3 months study.
However, if we go back to original question on whether unlawful non-citizen can regularise their status beyond the limited options now available. Should unlawful non-citizens remain forever in the shadows of Australian society and possibly separated from their families? - yes - there should be more options available. These may have been living in society for many years as unlawful and have settle themselves in someway or have regarded or opted Australia as their new home. There should be a provision for families to unite. people under such circumstances stay years (may be most of their life) away from children/families. Their should be a compassionate pathway for a lawful status. -
Thursday, 19 May 2016
There is another important point to be made about student visas. It has been made before but reiterated here. The Genuine Student and Genuine Temporary Entrant Criteria are totally flawed and impossible to validate. They are nothing more than a personal opinion of the case officer based on their wonderful logic and analysis of circumstances of the applicant and guidelines provided by policy.
Who in their right mind would come to Australia to study with a view to migrating or working in another country when the fees in Australia are the highest. America, UK, NZ, Canada and more are much cheaper so why wouldn't they study there if that was their target to migrate.
To enable a student to qualify for genuine temporary entrant and genuine student if they are planning to attempt to migrate to Australia for a better life, they need to submit a story that the case officer will believe and basically make up a lie.
Then they will need to research the course, know the subjects (Why in God's name do they need to know what subjects they will study), what the university is about (Who cares - you just want a degree from a reputable university - is the government or immigration saying that some approved providers are no good and the student should look out for that?), know where the University or course provider is, know how to get there, Where they are staying, What benefits they have in their own country or another and on it goes.
This has to be the most embarrassing requirement put up by our government to prospective students in history. Sadly they have no choice but to abide by it and hope they are allocated a sensible case officer.
Then we have the last person in the family. All other sons and Daughters have migrated to Australia and the last child applies for a student visa and will be refused beacause there is little chance they will go back or will want to go back to their home country. SO WHAT?. They will try to reunite with the family - what is wrong with that? Are we so anti family that we apply this ridiculous criteria.
There are so many other elements wrong with this decision making criteria it is farcical -
Thursday, 19 May 2016
Compassion or orderly administration of Australian migration law? Too much compassion leads to anarchy (hence 1000+ deaths at sea that many people have forgotten about). At least with orderly administration of Australian migration, individuals have a way to know where they stand, their options, and if it is not possible to stay, they need to consider life in their home country and return there. GUESS WHAT PEOPLE, THIS IS THE LAW.
Australia owes no individuals an automatic right of passage just because they don't want to return to their own country. Rather, Australia has an obligation to look after its own citizens first and foremost.
Immigration blog
The findings simply wrong and will be overturned, sooner or later.