Australian Immigration Daily News

Suppose you have a client who is seeking a further student visa to remain in Australia to pursue further studies.

Suppose also that the student visa application has been refused by the Department, and the Tribunal has affirmed the refusal of the visa application on the basis that the Tribunal is not satisfied that “the applicant intends genuinely to stay in Australia”.

Does that outcome necessarily mean that all hope is lost for the applicant, that the case is over, and that you need to tell the applicant that it is time to pack her bags and prepare to return to her home country?

Not necessarily!

A decision that was handed down by Judge Smith of the Federal Circuit Court late last week, Hazra & Anor v Minister for Immigration & Anor (2017) FCCA 688 shows us that an adverse conclusion by the Tribunal on the question of whether the applicant is a “GTE” is not necessarily fatal, and is not necessarily the end of the matter!

Why should that be the case?

Because jurisdictional error may be lurking in the Tribunal’s decision, waiting to be discovered.

And because an application for judicial review might succeed in bringing that error to the attention of the Federal Circuit Court, and in getting the Tribunal’s decision “quashed”, and therefore in getting the case sent back to the Tribunal for re-determination.

On the surface, the Hazra case may have appeared fairly “routine” and doomed to failure.

The background was that the applicant had originally come to Australia on a student visa to undertake studies toward a master’s degree in health science in aged services. However, rather than completing that course, the applicant instead, enrolled in a Certificate IV course in “Frontline Management”. She completed that course as well as a diploma of management. She then enrolled in further business courses, including an advanced diploma of management, an advanced diploma of marketing, and a Bachelor of Business.  She applied for a further student visa to enable her to complete these courses.

However, that 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 in Australia as a student and that she intended to stay in Australia only temporarily.

The Tribunal proceeded to affirm this decision.  It found that the applicant’s evidence that she had been able to undertake a Certificate II course which would have enabled her to obtain employment as a nursing assistant in an aged care facility, but that she had not been able to find another course in health sciences, to be not credible, and therefore “indicative of the fact that her motivation for coming to Australia and remaining in Australia is more likely related to her desire to obtain employment”.

What was wrong here?

What was wrong was that the issue of the applicant’s motivation to obtain in Australia had never been previously raised.

Not in any correspondence from the Department to the applicant prior to the initial refusal of the visa application.

Not in the Department’s reasons for refusal.

Not in any correspondence to the applicant from the Tribunal.

Not in any questioning of the applicant at the Tribunal hearing.

So the Federal Circuit Court concluded that the Tribunal had failed to afford the applicant procedural fairness under section 360(1) of the Migration Act.

This section, as readers will be aware, requires the Tribunal to “invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review”.

The Federal Circuit Court in Hazra interpreted the term “issue” as used in s 360(1) to include “any question that the Tribunal considers that it needs to decide”. 

The Court found that the question of whether the applicant had been motivated to stay in Australia to obtain employment, rather than to pursue studies, was an issue within the meaning of section 360(1).

And since this issue had never been raised with the applicant by the Tribunal, and she had not been given an opportunity to address it at the hearing, the Court concluded that she had been denied procedural fairness and that jurisdictional error had occurred.

The decision again goes to show that claims of denial of procedural fairness can be an extremely powerful tool to get a decision of the Tribunal “quashed”.  Especially when it may otherwise appear that “all is lost”!

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