Australian Immigration Daily News

Are you ready for a quiz?

Or to be a member of the AAT for the day?

Well, ready or not, here it comes!

What would you think of the following circumstances?

A visa holder approaches you and tells you that he needs help dealing with the cancellation of his Subclass 100 – Partner visa.

He tells you that he originally entered Australia from China on a Short Stay Business visa, using a certain name.

After applying for, and being refused, a succession of other visas, he ultimately obtained a Bridging Visa E in the same name that he had used on his original visa application, and he returned to China.

While in China, he then applied some years later for Subclass 309/100 Partner visas.  This time around though, he used a different name, and a different date of birth, from the ones he had used on his original visa application.

Also, on the visa application form, he responded to questions asking whether he had ever been refused a visa, whether he had ever held a Bridging Visa E, and whether he had ever held a visa for travel to Australia by ticking the answers “No”, when the opposite was the case with respect to each question.

Also in the mix: after the visa was cancelled, the visa holder appeared before the Tribunal, was asked by the Tribunal member why he had changed his name, and he responded that he had changed his name because he had come to Australia in the past, and he “didn’t want to use the bad record”.

Would you “reckon” that against this background the visa holder’s “goose is cooked” and that he would have no chance whatsoever of avoiding visa cancellation?

If you did come to that seemingly natural, seemingly self-evident conclusion, you would, somewhat surprisingly, be wrong and you would have failed the quiz!

Why?

The scenario described above comes from an actual case that was recently decided by the Federal Circuit Court, Guo & Anor v Minister for Immigration & Anor (2018) FCCA 1173.

And the reason that the Tribunal’s decision to affirm the Department’s cancellation of the visa was overturned was that the Federal Circuit Court determined that the decision was affected by jurisdictional error.

What was that error?

The Court reasoned that under the Full Court’s decision in the case of Minister for Immigration & Citizenship v Khadgi, (2010) FCAFC 145, that consideration of the circumstances listed in Regulation 2.41 is a “jurisdictional prerequisite” to the (discretionary) exercise of the visa cancellation power under section 109 of the Migration Act.

Reading between the lines of the Court’s decision, it looks like what happened here was that the Tribunal somehow relied on a previous version of Regulation 2.41, and not the amended version that was actually applicable to the case!

The previous version of sub-regulation 2.41(c) had specified that one of the factors to be considered in determining whether to proceed with a cancellation of a visa was “The likely effect of a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine documents”.

The version of sub-regulation 2.41(c) that actually applied to the case specified that the factor to be considered was “whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document”.

What happened here was that the Tribunal did not consider whether the decision to grant the visa was based wholly or partly on incorrect information, as was required by the version of sub-regulation 2.41(c) that applied to the case.

Instead, the Tribunal (apparently!) sought to consider the former version of the sub-regulation.

Because in its decision, it addressed “the likely effect of the (incorrect) information” – namely, the Tribunal “speculated” (in the words of the Court, that "the incorrect information (supplied by the applicant) may have led to a more rapid assessment of the visa application".

The Federal Circuit Court (Judge Smith) found that such “speculation” was not what was required by the sub-regulation; what was actually required was for the Tribunal to apply the applicable version of 2.41(c) and to consider whether the decision to grant the visa was based on incorrect information.

Since the Tribunal did not correctly apply the 2.41(c), the cancellation power under section 109 was not enlivened, and the Tribunal fell into jurisdictional error.

So, as the saying goes, sometimes it seems darkest before the dawn!

Even where the circumstances of a case might seem hopeless, close reading of what the Tribunal has done may actually save the day!