Australian Immigration Daily News

Yeah-nah, Nah-yeah!

What?

Is it possible for 2 objects to occupy the same space at the same time?

Is it possible for the Tribunal to make 2 contradictory, mutually exclusive findings in the same decision?

For example, that an applicant satisfies, and does not satisfy, a Schedule 2 criterion?

What happens if that happens?

It so happens that it did happen!

In a case that appeared on Austlii last night: Bhangu v Minister for Immigration and Border Protection (2017) FCA 108 (17 February 2017).

Keep reading, I am not pulling your collective leg, and you have not just stepped through the looking glass and accompanied Alice on a trip through Wonderland!!

Here’s the story of the case: The applicant originally entered Australia from India on a student visa in July 2008. After completing courses at the Victorian Institute of Culinary Arts and Technology in hospitality and management, he applied for a further student visa, proposing, this time, to undertake studies in information technology.

There were apparently three periods when there were “gaps” in the applicant’s study at VICAT, during which he had not been enrolled in any course. One of the gaps extended for a period of 85 days.  The Department extended him opportunities to provide information concerning the gaps in his study.

However, ultimately, the Department determined that the applicant had not provided an adequate explanation for the study gaps, concluded that he had not demonstrated that he genuinely intended to stay in Australia only temporarily, and thus determined that he did not meet the relevant criterion of then clause 573.223 (which contained the “genuine temporary entrant” requirement).

The applicant sought merits review of the refusal of his application before the Tribunal.

And that’s where things went “haywire”!

To start with, the Tribunal stated, at Paragraph 26 of its decision, that it was not satisfied that the applicant genuinely intended to stay in Australia temporarily, and for that reason, he did not meet the GTE criterion in then 573.223(1)(a).

Yet, in the very next paragraph of the decision, paragraph 27, the Tribunal decision stated:

“27. As the Tribunal has found the applicant meets the requirements of cl. 573.2233(1)(a), it will remit the matter to the delegate for reconsideration”.

Yeah-nah, Nah-yeah indeed! On the one hand, and on the other hand! Affirmed or set aside?

And more!

In its decision, the Tribunal stated that it accepted the explanations given to the Department by the applicant concerning the study gaps, and also stated that it accepted that he was in fact studying during the periods of the “gaps”, and that he has therefore not breached the conditions of his previous student visa.

Yet a few paragraphs later in the decision, the Tribunal member stated: “I have formed the view that he (the applicant) is using the student visa for purposes other than its intended purpose and to circumvent the migration program and maintain ongoing residence in Australia.” 

So the Tribunal ultimately concluded that it was not satisfied that the applicant was a genuine applicant for entry and stay as a student. It affirmed the Department’s decision to refuse the application.

So, was the Tribunal’s decision affected by jurisdictional error? It is time for the Sarah Palin chorus to chime in with the phrase she made famous, or infamous: “You betcha!!!!”

The Federal Court (Justice Moshinsky)  concluded that the Tribunal had indeed committed jurisdictional error, due to the serious problems in its reasoning process. It had failed to meet its obligation “to take an undistracted, focused and deliberative assessment of only those facts and circumstances referable to the case of the appellant” that was an essential element of the discharge of its review function.  And the Tribunal had fallen into error by identifying the wrong issue, asking itself the wrong question, ignoring relevant material or relying on irrelevant material.

So the moral of the story is that it is critically important to read unfavourable decisions of the Tribunal with a magnifying glass to be sure that the decision is internally consistent and makes sense.  You don’t necessarily need to throw yourself on the floor in a heap and cry when you lose a case before the Tribunal! There may be a way to get a decision that is adverse to your client set aside!!!

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