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Immigration Daily News Beating the Genuine Temporary Entrant Criterion Against the Odds!Australian Immigration Daily News
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Beating the Genuine Temporary Entrant Criterion Against the Odds!
Do miracles, or at least unexpected outcomes, ever happen in migration cases?
Is it worth pursuing an application for judicial review even where it might seem at first blush that the Minister might have an “open and shut” case?
Is the Genuine Temporary Entrant criterion for the grant of student visas an insurmountable obstacle?
A recent decision of Judge Dowdy of the Federal Circuit Court in the case of Singh v Minister for Immigration & Anor (2018) FCCA 1684 (29 June 2018) shows us that yes, miracles can happen, yes, when one digs beneath the surface, it may well be the case that there is a good case for judicial review, and yes, a refusal on the basis of alleged failure to satisfy the genuine temporary entrant criterion can sometimes be overcome, and that the GTE is not necessarily fatal.
The fact pattern in Singh surely does not sound favourable on first reading:
The applicant, a citizen of India, was originally granted a Subclass 573 – Higher Education visa from while offshore in March 2008. He was later granted a further Higher Education visa after his arrival in Australia, which was valid until 2014. He then applied for a Subclass 572 visa in order to undertake certificate and diploma courses in accounting. This last application was refused by the Department.
The information before the Department at the time of its review of the Subclass 572 application included the following record concerning the applicant’s history of study in Australia:
* He was not enrolled in any course of study for a 4 month period in 2011;
* He was outside of Australia for a three month period in 2011;
* He did not commence a Bachelor of Business course of study that had been the subject of his second Subclass 573 visa;
* The second student visa had been cancelled, and the applicant had not enrolled in any further course in the higher education sector;
* The applicant had completed only 3 courses over the period that he had been in Australia.
So, how did the applicant manage to overcome this seemingly overwhelming evidence supporting the refusal of his latest application, for a Subclass 572 student visa?
First, the applicant had submitted a letter to the Tribunal before the hearing on his case in which he claimed that his father had been in ill health since the time of his arrival in Australia due to a serious heart condition, and the applicant had travelled back to India numerous times as a result of his father’s poor health;
Second, the applicant presented a health certificate from a doctor in India which confirmed that the applicant’s father was suffering from severe heart disease;
Third, and most critical, was Judge Dowdy’s finding that the Tribunal’s written decision disclosed that the Tribunal had failed to consider and deal with the applicants claim that his father’s health condition had negatively impacted on his studies in Australia and provided an explanation for the gaps in his study – in other words, his claim that his father’s medical condition was an extenuating circumstance beyond his control.
Judge Dowdy arrived at this conclusion because there was no reference, at all,in the Tribunal’s written decision to the medical certificate relating to the ill health of the applicant’s father. Because there was no reference to the medical certificate, Judge Dowdy found that the Tribunal had given no consideration to it. In Judge Dowdy’s view, the fact that the Tribunal had included a general statement in its decision that it had “considered all the evidence before it” was not enough to overcome the Tribunal’s failure to make specific reference to the medical certificate.
Accordingly, Judge Dowdy found that there had been jurisdictional error on the part of the Tribunal: the Tribunal had failed to give real and genuine consideration to the applicant’s substantive claim that his father’s illness had been an extenuating circumstance, and had thus failed to consider the “entirety and totality” of the applicant’s claim, and had thus failed to provide the applicant with procedural fairness.
So the outcome in this case shows us, once again, that very close reading of a decision by the Tribunal can be rewarded: it can show that a jurisdictional error that is not immediately obvious did occur, and that can provide an avenue for getting the Tribunal’s decision overturned and sent back to the Tribunal for re-determination.
Comments
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Tuesday, 03 July 2018From own experience, I know that case officers when considering GTE sometimes only consider what they want. Many times when decision for refusal is given totally omits some of the evidence that refutes their decision. This means that they only look for reasons to refuse and not at any favourable justification.
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Tuesday, 03 July 2018
To me it just looks like a technical win, wouldn't pass the Tribunal 2ns time.
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Tuesday, 03 July 2018
Please don't laugh at me when i say that 'I live in hope that the GTE will be dumped one day!' What a win win for everyone that will be. The government will make zillions more!
In this case the applicant lined up his ducks in a row and the tribunal member shot them down beautifully because they can and do just like the case officers. Regardless, a win is a win! good for him! -
Friday, 06 July 2018
The last option in deciding GTE "any other matter" gives absolute power to abuse and refuse. It is used and abused so many times in so many ways because the case officer believes something but cant prove it.
Once someone has absolute power and control over whether they keep the power or not, there is no way they will relinquish the power.
The case officer does not believe?? Is a reason for refusing. The case officer is Filipino, India, Malaysian, Chinese, Indonesian, Canadian, etc. Not an Australian.
What is the basis of this belief or non-belief and how is it infected with cultural bias and personal opinion? We have a clerk sitting in an office reading files and looking for reasons to refuse rather than grant.
I might mention here that in the old days when we had 5 levels of occupational classifications (2007 & 2008) Migration Case officers were a level below prostitutes in the classification listing, which offended them greatly. Their performance now, in so many decisions, is indicative of the accuracy of that past rating. -
Thursday, 05 July 2018
GTE is nothing but a political tool to allow Immigration (Home Affairs - ridiculous name) to refuse any visa they want to, for any reason they choose (without justification, since no right of appeal is afforded the applicants).
Given the complexity of the GTE and the power allocated to the case officers, who, in the majority of cases, are not Australians, are in overseas posts with limited grasp of English, infected with country biases and in many countries, have never been taught to critically analyse anything, who decide based on check lists and then copy and paste pre-set answers (evidenced many times with yellow highlighted text left in the decisions), and can choose any reason from this list of available answers to say NO and refuse the visa application.
GTE is an abusive application of non specific criteria, giving genuine applicants no possible hope of understanding what will be accepted and what will not, causing the applicants to waste money on the applications thinking they will be successful in gaining a visa grant, only to be presented with a devastating refusal.
One visa will be granted with exactly the same criteria as another application that is refused. Consistency is not there, Justice and fairness are not there.
I have seen visa refusals for reason "I don't believe the employment situation of the applicant is sufficient to meet..... ----The applicant, Thai living in the province, 12 years in the same position, supervisor, 18,500 Baht month, wife also applied together salary 15,500 Baht month, same time in employment with the company, seeking a two week holiday with place to stay, free accommodation, REFUSED. Met all the criteria for the GTE but case officer refused anyway.
Other applicants had been refused for not having stable employment. These 2 refused for having stable and high salary employment. TOTAL CONTRADICTION when comparing the refusals.
Since this is controlled by politicians we cannot expect any reduction/change in the GTE since it would be a removal of power. What we should expect is a high level of consistency with properly trained case officers, not beginners or biased check list following staff, making poor decisions.
A partner of an Australian Citizen, in a relationship for 3 years, application for visitor visa (working in Brunei) to spend 2 weeks over Christmas with him to meet the family, she was employed, Partner was employed, refused in one day with no mention of the complete evidence of the relationship which (would have satisfied the evidence for a partner visa application) demonstrating the relationship.
Policy brought in and instead on granting the visa had to spend money resubmitting to overcome the case officers bias and inability to understand policy and regulations, even though they were in my submission document.
Second visa granted 1 month with 8503 (spiteful) - Embassy was Kuala Lumpur (Malaysia): Reapplied again for another visitor visa after she departed Australia and returned to the Philippines which was Granted for 12 months multiple entry no 8503.
We can all go on and on with similar examples and since this is the case there is a culture of abuse in Immigration surrounding the GTE. Evidence is there with so many examples, lack of understanding, lack of compassion, lack of logic in the decisions, flawed comments in the decision records, and inconsistency no other organisation could survive with.
What makes it worse is the directions in policy, even thought they are described as only needing to meet one of the criteria in many situations, allow the case officers to refuse because all criteria have not been met and substantiated by comments "but they still have to meet the GTE" The policy offers options where GTE is implied as waived but complying with GTE is always their protection in any communications. It is like a lethal weapon to be used in any situation where they are compromised and protects them from any responsibility for poor decision making.
Hopefully, one day, Immigration (Dept of Home Affairs) will apply fair regulations and consistency in decisions - after all - the case officers are deciding as if they are the Minister so should be all applying the regulations and the policy same way.
Immigration blog
From own experience, I know that case officers when considering GTE sometimes only consider what they want. Many times when decision for refusal is given totally omits some of the evidence that refutes their decision. This means that they only look for reasons to refuse and not at any favourable justification.