Visa Refusal - Not Always the Final Decision

Challenging the Genuine Temporary Entrant Criterion

Visa applications are not always immediately successful. There are quite a number of reasons which could result in refusal; some relating to “capping”, others relating to an applicant’s perceived inability to meet required criteria.

Where a visa is declined, the affected applicant has the option of appealing the decision for review by the Tribunal. But what if this also returns a negative result?

Australia is a country which champions fairness and equality, as this recent decision of the Federal Circuit Court fully illustrates:

Singh v Minister for Immigration & Anor (2018) FCCA 1684 (29th June 2018)

Following an offshore application, the applicant, a citizen of India, was initially granted a Subclass 573 – Higher Education visa in March 2008. Subsequently, while in Australia, he was granted a further Higher Education visa which remained valid until 2014. He then sought a Subclass 572 visa in order to undertake tertiary studies in accounting, but this final application was refused by DIBP.

The Department based its refusal on the following information:

  • Applicant was not enrolled in any course of study for a four-month period in 2011;
  • He was outside Australia for a three-month period in 2011;
  • He had not commenced the Batchelor of Business course which was the subject of his second 573 visa;
  • The second student visa had been cancelled – the applicant had not enrolled in any further course or courses in the higher education sector;
  • He had completed only three courses since first arriving in Australia.

On face value, the Department’s grounds for refusal appear irrefutable. The applicant did however refer his case to the Tribunal.

The Tribunal Held

With his submission to the Tribunal, the applicant tendered a letter in which he claimed that his father, in India, had been in very ill health since the time of his arrival in Australia, suffering from a serious heart condition which had required the applicant to travel back to India on numerous occasions. This claim was fully supported by a health certificate from a doctor in India.

Irrespective of this extenuating circumstance, the Tribunal supported the decision of the Department. But the applicant proceeded further:

Federal Circuit Court of Australia

Following further appeal to the Federal Circuit Court (FCCA) the Tribunal’s findings were reviewed. The FCCA found that, in its written decision, the Tribunal had made no reference what-so-ever to the applicant’s father’s health, to the letter provided to it by the applicant, or to the supporting medical report. The Court concluded therefore that, despite its conclusion that it had “considered all evidence before it”, the Tribunal had not in fact deliberated the core evidence and had therefore, by failing to consider the “entirety and totality” of the applicant’s claim, made a jurisdictional error.

The case was returned to the Tribunal for re-determination.

It’s a matter of understanding the processes

In the complex and rapidly changing world of immigration law, nothing is constant and nothing is simple. It really does pay dividends therefore, to obtain professional assistance, skilled specialists, specifically trained in the processes, enabled to assist you in achieving the finest possible outcome in the shortest possible time.

For more information on this or on any relating issues, contact the migration experts – Sellanes Clark and Associates – specialising in all immigration matters.

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