Trying to navigate your way through the migration legislation can seem at times like finding your way through a maze!
And this can be true even for experienced migration agents and migration lawyers.
So it is no wonder that visa applicants who are trying to work their way through the process on their own can get tripped up by the complexities of the process, and, as a consequence, find that their visa entitlement to remain in Australia can be placed in jeopardy.
A case that was decided in the Federal Circuit Court just last week, Sidhu v Minister for Immigration & Anor (2016) FCCA 2465 (4 October 2016) illustrates the traps and pitfalls that may be lurking for the unwary.
And the case shows why engaging the services of an RMA can be literally invaluable.
The factual background of this case, like that of so many others that wind up in the courts, was somewhat tangled and complicated:
The applicant was an Indian citizen. He was originally granted a student visa in March 2012 that was valid until June 2014.
However, in May 2013, a delegate of the Minister cancelled his student visa pursuant to section 116 of the Migration Act.
The applicant sought review of the cancellation of his student visa before the Tribunal, but was unsuccessful: the Tribunal, in the first instance, affirmed the cancellation decision.
However, the Tribunal’s original decision was quashed by consent when the applicant sought review in the Federal Circuit Court, and the case was then remitted to the Tribunal for redetermination.
Then, in November 2014 (after the original student visa had expired), a differently constituted Tribunal decided that the original cancellation decision should be set aside.
The Department claimed that following the Tribunal’s decision to set aside the cancellation of the original student visa, a letter was sent to the applicant notifying him that he had 28 days in which to lodge an application for a further student visa. Effectively, the applicant had until 29 December 2014, 28 days after the Tribunal’s decision, to lodge his application for a further student visa.
However, the applicant claimed that he never received the Tribunal’s letter informing him about the deadline for lodging the application for the further student visa. Apparently, he assumed that after the Tribunal had set aside the cancellation of his original student visa, he assumed that a visa would “automatically” be issued to him, and that it would be the Department’s responsibility to provide him with a visa.
The applicant claimed that he had visited the Department on numerous occasions after the Tribunal had set aside the cancellation of his visa, to make enquiries about his visa status. He also claimed that it was his belief, based on what he had been told by the Department, that the Department would either contact himto grant a visa, or that it would possibly facilitate the grant of a visa.
In any event, it was the applicant’s claim that due to allegedly erroneous advice that he had received from the Department, he was “late” in lodging his application for a further student visa. He did not actually submit the application until January 2015, more than 28 days after the Tribunal had handed down its decision setting aside the cancellation of his original student visa.
You might guess what happened next!
The Department then refused the application for the further student visa, on the basis that the applicant had failed to satisfy the former clause 572.211(3), because the application was lodged more than 28 days after the Tribunal’s decision.
The applicant then sought review of the decision refusing his new student visa application before the Tribunal. But after a very brief hearing, the Tribunal affirmed the refusal of this second visa application.
And when the applicant challenged the Tribunal’s decision in the Federal Circuit Court, he also lost his case.
The Court (per Judge Heffernan) found that under the Federal Court’s decision in Kaur v Minister (2013) FCA 275 the Tribunal had no power or discretion to waive the requirements of clause 572.211. In essence, the Tribunal was bound to affirm the refusal of the second student visa application because the applicant had failed to lodge the application within 28 days of the Tribunal’s decision setting aside the cancellation of the (by then expired) original student visa application.
Judge Heffernan clearly expressed his sympathies for the applicant’s predicament. His Honour observed that the circumstances of the case were “most unfortunate”, and noted that “there seems no reason to doubt that (the applicant) became genuinely confused as to what he was required to do”. Indeed, Judge Heffernan too the unusual step of noting that the case “would seem to be an appropriate matter for the applicant to make a request to the Minister for ministerial intervention”, while at the same time being careful to state that: “The Court plays no role in that process”.
The obvious question though is whether the applicant in this case would be granted Ministerial Intervention if he were to request it. Given how rarely Ministerial Intervention seems to be granted, it does seem that the applicant’s prospects for securing his further student visa might not be strong.
It all goes to show that because of the twists and turns and subtle legal aspects of the migration legislation, that the best course of action for an applicant who is in doubt as to how to proceed is to seek assistance from a registered migration agent.
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