Australian Immigration Daily News

Is there a good strategy for fighting the cancellation of a student visa?

Suppose  you have a client who has not maintained her/his enrollment in a registered course, and is therefore in breach of Condition 8202(2), which requires her/him to remain enrolled?

Will it “work” for the client to “scramble”, and get an offer of enrollment in a completely different course from the one on which the original student visa was premised?

If an argument is put to the Tribunal that the client will enroll in this new course if the original student visa is not cancelled, will that enable the student to avoid the cancellation?

And is it legitimately “open” to the Tribunal to consider whether the client really is a genuine student who genuinely intends to remain in Australia only temporarily?

These questions were all canvassed in a decision by Judge Riethmuller of the Federal Circuit Court that was handed down earlier this week, on 7 November: Suthar & Anor  v Minister for Immigration & Anor  (2016) FCCA 2844. 

This was the background of the case: the visa holder originally came to Australia in February 2012 to take a course in fashion design and technology. Although she attended her course until it ended in June 2014, she failed to satisfactorily complete all the units in the course. Consequently, she was without any enrollment from June 2014 until November 2014, and was thus in breach of Condition 8202(2).

The Department proceeded to cancel her original student visa, and she sought merits review before the Tribunal.

On the day before the scheduled hearing before the Tribunal, in November 2015, the visa holder submitted to the Tribunal a copy of a booking  to sit an English language test, and an offer of enrollment to undertake a Bachelor of Business  Management course.

The Tribunal ultimately decided to affirm the Department’s decision to cancel the student visa.

Central to the Tribunal’s decision was its finding that the visa holder was not a genuine student. In reaching this conclusion, the Tribunal had regard to the visa holder’s history of studies and the differences in the courses between her initial intended course of study (fashion design) and her new intended course of study.

So, the question in this case was whether it was appropriate for the Tribunal to consider, in the context of deciding whether to affirm the cancellation of the student visa, whether the visa holder was a genuine student.  In the judicial review application that was taken from the decision of the Tribunal, it was submitted on behalf of the visa holder that it was not proper for the Tribunal to consider whether the visa holder could meet the test for the grant of a further student visa when it was considering whether or not to uphold the cancellation of the original student visa.

The answer given by the Court?

Judge Riethmuller held that in cases where the breach of the visa is “indefensible” (in other words where no reasonable explanation can be provided for the failure to remain enrolled in a registered course), but a clear future study plan is offered, then “the discretion in section 116 (not to affirm the cancellation of a student visa) must allow the possibility of not cancelling the visa”.

In other words, what Judge Riethmuller decided was that yes, if a student visa is cancelled, then it is at least theoretically possible that if the student enrolls in a different course, then that new enrollment may possibly provide the basis for getting the cancellation of the student visa overturned.

Thus, Judge Riethmuller concluded that in a case like Suthor, where the defence against the cancellation of the student visa is premised primarily on the claim that the visa holder would satisfy the criteria for the grant of a student visa by being a genuine student, then it is entirely acceptable for the Tribunal to consider that question when deciding whether to affirm the cancellation.

Unfortunately for the visa holder in Suthar, that consideration led to a negative finding against her.

However, the case does provide a bit of a road map that can be used in future cases – namely, that it may in fact be possible to get the cancellation of a student visa overturned by enrolling in a new course.

The key, as illustrated by the Suthar case, is in being bale to convince the Department/Tribunal that the visa holder really is a genuine student who only intends to remain in Australia temporarily.

So have your evidence on this point ready!!!