Australian Immigration Daily News

Is it possible successfully to challenge the cancellation of a student visa? 

If so, on what basis? 

Let’s take a case that was decided at the end of May, Singh v Minister for Immigration and Border Protection (2016) FCA 611 (31 May 2016) as an example. 

In this case, the visa holder was a 23 year old Indian citizen.  He originally entered Australia on a Higher Education Sector student visa (Subclass 573).  He was originally enrolled in a Diploma of Information Technology and a Bachelor of Information Technology at Queensland University of Technology in Brisbane.  However, he never commenced studies at QUT. The education provider then cancelled his enrollment and refunded his fees. 

The visa holder then applied for a further student visa, a Subclass 572 visa for the Vocational and Education Training sector, on the basis that he intended to pursue a Diploma of Website Development through the Institute of Technology Australia in Adelaide.  He had obtained a Certificate of Enrollment for this course. 

That second student visa application was refused by a delegate of the Minister on the basis that the delegate was not satisfied that the applicant was a “genuine applicant for entry and stay as a student”. 

The visa holder did not seek review of the refusal of this second application before the AAT. 

What happened next was that a delegate cancelled the original 573 visa. The basis of the cancellation was that the visa holder was said to have breached Condition 8516, which required that he continue to be a person who would satisfy the criteria for the grant of the visa. 

The visa holder then sought review before the Tribunal, the Federal Circuit Court, and then the Federal Court. 

Was he, as lawyers love to say (perhaps “sadistically”!) proverbially “doomed to failure”? 

Was his challenge to the cancellation decision destined to “crash and burn”? 

Well, he was unsuccessful before the Tribunal. 

The Tribunal found that he was not enrolled in a “higher education course”, was therefore in breach of Condition 8516, and that a ground existed for cancellation of the 573 visa.  

Importantly, in reaching this conclusion, the Tribunal did not consider the Diploma of Website Development in which the visa holder had enrolled in Adelaide to be a “higher education course”. 

Anyways, as we like to put it in baseball terms in America, “strike one”.  The visa holder lost at the Tribunal level. 

Did things go any better for him before the Federal Circuit Court? 

No, they did not.  He lost there too.  In fact, he got tossed out at a very early stage, at a Show Cause hearing. 

The Federal Circuit Court concluded that the visa holder did not have an arguable case that jurisdictional error had occurred at the Tribunal.  So, the FCC dismissed his application for judicial review. 

“Strike two”. 

What about at the Federal Court? Was it “strike three and you’re out?” for this visa holder? 

No!!!!! Just when things were looking bleak, the Federal Court found that there were at least arguable grounds that the Tribunal had committed jurisdictional error. 

So the Federal Court sent the case back to the Federal Circuit Court for re-determination. 

Now, to the key of the case: Why did the Federal Court consider that there was at least an argument that the Department had erroneously cancelled the original 573 visa, notwithstanding that he had never commenced studies at QUT and that his confirmation of enrolment had been cancelled? 

Primarily, because Federal Court found that it was arguable that the Diploma of Website Development was a “higher education course”, and that, by virtue of obtaining a confirmation of enrolment for that course, the visa holder had not in fact breached Condition 8516 and that there was therefore no jurisdiction to cancel the 573 visa in the first place! 

OK, I am sure you might be thinking at this point, “Hey, wait a minute. This person never studied towards his bachelor’s degree and then enrolled in a diploma level course in Website development. How could it possibly be that the diploma program was a “higher education course?” 

This is why in the arcane and mysterious world of migration law, it is essential to “drill down into the granular details” (as “true-blue” Australians would put it!!!) 

In the view of the Federal Court (Justice Charlesworth) it was arguable that the diploma course in Website development was actually a “higher education course”. 

Why? Because the term “higher education course” is defined to include a course specified in a legislative instrument made under regulation 1.40A. At the time of the cancellation decision, the relevant legislative instrument   stated that a “Diploma (Higher Education)” was a higher education course and that a “Diploma (Vocational Education and Training” was a  VET course for a 572 visa, but the instrument provided no guidance as to whether the diploma course that the visa holder had enrolled in was or was not a higher education course. 

Ain’t ambiguity in the migration legislation grand? 

It is certainly a reason why RMAs have a fundamentally important role to play in assisting clients! 

Stay tuned for a forthcoming post on that subject!!!!

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