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.