Australian Immigration Daily News

Sometimes it appears that a decision before the Tribunal may turn on the simplest of matters.

And that the Tribunal has apparently made an obvious error that could in theory be easily corrected (and an applicant’s visa status thus resolved).

However, even in a case of clear error, the Minister may not be prepared to concede that “the Tribunal got it wrong”.

So it may take quite some time for the case to make its way through the Federal court system to that the case can be sent back to the Tribunal for redetermination and the error can be rectified.

A case that was decided late last week, Bajaj v Minister for Immigration & Anor (2017) FCCA 1162 (2 June 2017) provides a perfect example.

The scenario in this case was that the applicant, a citizen of India, was onshore in Australia and was already enrolled in a Certificate III course in “Automotive Electrical Technology” and also a diploma of business. In September 2014, he sought a further student visa, what was then a “Subclass 572” visa for studies in the Vocational Education and Training Sector.

The Department refused the visa application in November 2014, on the basis that he had failed to provide acceptable evidence of the source of his funds to pay his tuition, living and travel expenses.

The applicant sought review of this refusal before the Tribunal on 1 December 2014, but a hearing was not held before the Tribunal until 21 August 2015. The Tribunal affirmed the refusal on the same day. But the case was not heard by the Federal Circuit Court until 20 April 2017, about 20 months later.

Presumably, the applicant would have remained in Australia on a Bridging Visa A while waiting for his case to be heard in the Federal Circuit Court.

And presumably, he could have completed a substantial portion of his proposed new or additional course while the case was pending in the FCC.

In any event, here was the error that occurred in the Tribunal:

In making an assessment of whether the applicant satisfied the financial capacity requirements in then Schedule 5A of the Migration Regulations, the Tribunal received evidence that the applicant’s father had received a term loan of 1.6 million rupees against the value of his house in India.  The money that was obtained through this home loan was then deposited in a fixed deposit account in a bank in India. And it was these funds in the fixed deposit account that the applicant intended to rely on to satisfy the financial capacity requirements for the visa.

The Tribunal erroneously calculated that the term loan of 1.6 million rupees that the applicant’s father had received converted into only $3,333 Australian dollars.

However, by the Minister’s own admission, the proper calculation of the currency conversion was that the 1.6 million rupees actually amounted to $33,000.

This mistake in the currency conversion then led the Tribunal to be “troubled” about where the funds in the fixed deposit account (again relied on by the applicant to satisfy financial capacity requirements) had come from, and for the Tribunal not to be satisfied that the money in the fixed deposit account had been sourced from the home loan. And so the Tribunal affirmed the refusal of the application.

In deciding this case, the FCC observed that not every factual error that is made by the Tribunal will result in jurisdictional error that will cause a Tribunal decision to be “quashed”.  The error of fact must relate to a “jurisdictional fact” – for example a fact that relates to whether or not an applicant satisfies the criteria for the grant of the visa in question.

In this case, the Tribunal expressed concern about how a home loan in the erroneously calculated amount of $3,300 could be sufficient to provide funds for tuition, living and travel expenses that totaled $23,000. The Court found that if the Tribunal had correctly calculated the currency conversion to Australian dollars, it would have understood that the applicant actually had $33,000 in the fixed deposit account, and that those funds had originated from the loan made against the home of the applicant’s parents. 

And if the Tribunal had done the currency conversion correctly, the outcome of its decision might very well have been different.

Another graphic demonstration that the facts do matter, and that, if the Tribunal somehow does not get the facts straight, seeking further review in the Federal Circuit Court may very well be an effective course for getting an applicant’s visa situation straightened out!