Two recent decisions of the Federal Circuit Court have once again confirmed that regulations which specify the time when a test to demonstrate English language proficiency must be taken can be strictly enforced.

In each of these cases, Mundi v Minister for Immigration & Anor (2015) FCCA 1412 (26 May 2015) and Singh v Minister for Immigration & Anor (2015) FCCA 1533 (5 June 2015), the Court held that it did not amount to “jurisdictional error” for the Migration Review Tribunal to affirm Departmental refusals of visa applications even in circumstances where the applicant is able to produce test results at the time of the hearing before the MRT to demonstrate that she/he has, as a matter of fact, the level of English language proficiency that is required by the relevant regulations.

It may appear at first blush that these decisions are "unfair" and elevate “form over substance” and that a person who can show that she/he has the necessary level of competency in English at the time that a visa application is determined by the MRT should be able to qualify for the visa. 

It's time to review post study work arrangements in Australia as the US Senate considers a proposal to extend post-study work rights in the US to up to six years for science-based international students. If the Senate approves the proposal, then Australia’s ability to attract quality students could be devastated, according to a report in The Australian.

International student numbers are at a high in Australia with the low Australian dollar and the streamlined visa processing system. But post study work arrangements for students remain limited and could become a key difference to students shopping for an overseas education.

If approved, the US plans would allow students with science, technology, engineering and maths degrees to stay in the US for three years if they hold a bachelors degree and another three years if they have a postgraduate qualification.

“If this policy takes off, it will seriously hinder and even undermine Australia’s capacity to recruit good quality student,” Phil Honeywood, executive director of the International Education Association of Australia told The Australian.

“Every time Australia thinks it’s hit the sweet spot on international education enrolments something unexpected seems to happen. No one would have thought the sleeping giant of the (US) market would have awakened so quickly to its potential.”

The Federal Circuit Court has ruled that applicants for student visas who intend to rely on bank loans to pay for their living and school costs do not need to provide evidence that they have had regular income sufficient to accumulate the loan funds.  

Although the decision – Saji v Minister for Immigration & Anor (2015) FCCA (7 May 2015) - was handed down in the context of an appeal against the refusal of an application for a subclass 572 (Vocational Education and Training Sector) student visa, it has broad applicability to other types of student visas for which evidence of the availability of funds to meet these expenses is also required (e.g. subclass 570 (Independent ELICOS Sector); subclass 571 (Schools Sector); subclass 573 (Higher Education Sector), etc.

If this case is a representative example of the administrative practices that the Department has been following, and the Department has in fact routinely been requiring student visa applicants who are planning to finance their costs through bank loans to show that they have had regular income to accumulate funds in the amount of the loans – then the Department has been misinterpreting and misapplying the regulations!

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Issues concerning sexual abuse of children and removing people who are seen to pose a risk to the Australian community have been very prominent in the news media in recent weeks. The on-going enquiry of the Royal Commission into Institutional Child Sexual Abuse, and the Abbott Government’s proposals to strip Australian citizenship from dual nationals who fight for the “Islamic State” have certainly brought considerable public attention to both of these issues.  

Indeed, my own article on the Migration Alliance blog concerning the case of Gjoubeh v Minister for Immigration and Border Protection (2015) FCAFC 883, in which the Full Court of the Federal Court affirmed the Minister’s decision to cancel a humanitarian visa held by a foreign national who was convicted of raping a minor child undoubtedly prompted the most passionate commentary from readers of the blog than the discussion of any other case that I have reviewed. 

It is therefore both timely and worthwhile to discuss a recent decision of Justice Logan of the Federal Court which overturned the Minister’s decision to cancel a visa held by another person who was convicted of a sex offence, Stretton v Minister for Immigration and Border Protection (No 2) (2015) FCA 559 (5 June 2015).