Australian Immigration Daily News

How many times have you heard or read about the following scenario, regarding a student visa application:

An applicant is granted a Subclass 573 visa on the basis of being enrolled to take an English Language Intensive Course for Overseas Students, and a Masters of Business Management.

However, after arriving in Australia, the applicant claims he is suffering from depression, due to living away from his parents and his home country for the first time, and feeling isolated and lonely. He does not complete the ELICOS course and does not commence the master’s degree course.  His enrolment in the master’s degree course is cancelled.

The applicant then enrolls in a certificate course in commercial cookery and a diploma of hospitality course.  

He then receives notice from the Department that it intends to cancel his Subclass 573 visa, and shortly thereafter he applies for a Subclass 572 visa.

However, the original Subclass 573 visa is ultimately cancelled by the Department, and the application for a Subclass 572 visa is refused on the basis that the Department is not satisfied that the applicant is a genuine applicant for temporary entry to and stay in Australia as a student. Merits review of the refusal of the second student visa application is then sought before the Tribunal.

However, the Tribunal concludes that the applicant has had “gaps” in the periods of his study in Australia, and it concludes that the applicant is “applying for a student visa to circumvent the migration program and to maintain ongoing residence in Australia”.

Well, if you say that if you’ve heard about this scenario “a hundred times”, you’re probably underestimating the number of times it is repeated.  When you read through the decisions of the Federal Courts on Austlii, you will see this same fact pattern played out time after time after time.

And indeed, this scenario was the subject of a decision that was handed down by Judge Hartnett of the Federal Circuit Court in Melbourne earlier this week, Singh v Minister for Immigration & Anor (2017) FCCA 1901 (14 August 2017).

The important question, both for applicants, for Registered Migration Agents and for migration lawyers, is whether there is any way to salvage such a situation, any way to get the AAT’s decision  that affirmed the refusal of the student visa application overturned and sent back to the Tribunal for reconsideration?

Well, usefully, the Singh decision tells us that there are steps and strategies that can be used to help an applicant in this situation.

Primarily, the lesson provided by the Singh case is that it is important not simply to “throw in the towel” after a visa refusal is affirmed by the Tribunal, but rather, to examine the Tribunal’s decision with care, and to evaluate whether or not the decision was affected by “jurisdictional error”.

And, lo and behold, the Singh case does give us an example of how to find, detect and identify jurisdictional error!

What happened in Singh was that the applicant had submitted to the Department a document from a doctor in Australia that certified that he had been diagnosed with depression, and that he was suffering from low mood, lack of motivation, poor appetite and loss of sleep.

The applicant had also submitted a written statement to the Tribunal which explained the reasons why he had changed his course of study, which included that he had always loved cooking, had ambition to work professionally as a cook, and came from a city in India where there are several hotels which would provide scope for future employment as a cook.

Judge Hartnett concluded that the Tribunal’s analysis of the applicant’s claims that he suffered from depression had omitted any reference to the medical certificate that the applicant had presented to the Department in the first instance, and which provided a formal diagnosis that the applicant was suffering from depression.

The Court also found that it was not evident from the Tribunal’s decision that it had in fact considered the material that the applicant had provided through his written statement concerning the reasons why he had sought to change his course from business management to cookery.

So, in the end, the Court found that the Tribunal had failed to consider “relevant matters” and that in so doing, had committed jurisdictional error.

What this all goes to show is that a Tribunal decision that may seem routine or formulaic may in fact be infected by jurisdictional error, and that it always always pays to read and review the Tribunal’s decision with great care, and with a view to whether evidence that was put to the Tribunal at the hearing was disregarded. 

You never know, but there are no doubt many instances where jurisdictional error is lurking below the surface of the Tribunal’s decision, and there are opportunities to rescue an applicant’s visa application and preserve the applicant’s ability to remain in Australia to study, to work, or for other purposes!

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