Building Law Dispute Resolutions for Revoked Student Visas Dan Burgher - 127119456

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Introduction

It is estimated that over 4.5 million temporary visas are granted each year by the Department of Immigration and Citizenship (DIAC). Of these visas, less than 1 percent (15 800) are revoked for breaches of visa conditions. Although the majority of temporary visa holders fall into the transit, tourist or short stay criterion, visa revocations are largely of student and business visa classes.1

Student Visas are granted to non-citizens entering Australia primarily for study purposes. Recent statistics establish that 280000 student visa applications are granted annually.2 An offer from a recognised Australian educational institution, tertiary or otherwise, for full time study, is the principal requisite for a student visa. Generally, applicant eligibility is reliant on previous studies in home country, English proficiency, age, financial circumstances and country of origin; the DIAC classifies countries germane to risk of non-compliance; apropos, the particulars of each eligibility criterion vary pertinently. Nonetheless, applicants may apply via the family sponsored pathway if the financial requisites are not met, although the financial circumstances of the family sponsor must be deemed sufficient for sponsorship. It is common for student visa holders to apply for a skilled visa after completion of study with intention of permanent residency in Australia.3

Immi.(2012). Types of Visas: Student Visas. Available: http://www.immi.gov.au/students/students/chooser/overview.htm. Last accessed 3 Sep 2012. 2 th C. Rodan and E. Rodan, Study and Business, in Migration to Australia: A Guidebook, 4 edn (Scottsdale, Arizona: Life Success Publishing, 2009), pp. 23-25. 3 ibid., p.27.

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Legislation The Migration Act of 1958 is a federal statute governing the conditions and requirements for entrance and stay of alien persons (non-citizens) in Australia. Its principal authors deliberated on a new framework for migration to Australia, doing away with the dictation approach of erstwhile acts thence introducing the permit method. In its legislation, the Migration Act overhauled the Australian immigration charter, replacing the 1901 federation originated Immigration Act of 1949, along with the Immigration restriction Act of 1910, Pacific Island Labourers Act of 1906, and the Aliens Deportation Act of 1948; amalgamating the themes of the acts into one ample statute The Migration Act of 1958. 4 The Migration Act of 1958 (the Act) regulates the legal power vested in the office of minister in the person of the minister, delegates or otherwise, in granting and revoking visas. SECT101 of the Act stipulates the first of all requirements - that applicants provide correct information and answer all questions in the visa application. The conditions for each temporary visa class are set out in the respective subdivision of the Act. For student and business visas, limitations to work, study and business activity are specified in visa conditions; Division 3, Subdivision D SECT108 and SECT109 of the Act lay down the grounds for revocation based on incorrect or misleading information. Subdivision G and Subdivision GB cover revocation due to incompliance with business and student visa conditions respectively. Section 137N of the Act

L. Berg and M. Crock, Legal Frameworks, in Immigration, Refugees and Forced migration (Sydney: The Federation Press, 2011), pp. 92 -100.

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empowers the minister to intervene and revoke a visa where deemed in the nations interest; normally in matters of criminal activity and security. 5

According to Division 1 SEC15 of the Act, visa revocations may brand the non-citizen unlawful lest a new visa is granted thereafter. The Act allows revoked visa holders to redeem lawful status by applying for a bridging visa. Bridging Visa E appears most prominent of all bridging visas; it is granted to revoked visa holders who submit intent to depart Australia, are held in criminal detention, have sought review of visa revocation - judicial or otherwise, or have applied for a substantive visa.6 In cases where all legal review methods have been exhausted and the revocation decision stands, a non-citizens status will become unlawful. Consequently, the non-citizen may be placed in immigration detention if they do not depart Australia. Parenthetically, the Act specifies that non-citizens who depart whilst unlawful incur an exclusion period from returning to Australia; the length of exclusion is largely dependent on country of origin, class of visa and type of breach.7

Dispute Resolutions for Student Visa Revocation The Migration Act of 1958 sets out the review options available to non-citizens who seek to reverse a visa revocation decision; the options fall into two categories: merits based and judicial the latter is not exclusively sanctioned by the Migration Act, rather by Section 75 (5) of the Australian Constitution.8 Judicial reviews are heard by the Federal courts on grounds of

Beyderwellen. (2012). Other Australian Specialist Areas: Australian Visa Cancellation. Available: http://www.beyderwellen.com/immigration-practice-areas/cancellations.htm. Last accessed 3 Sep 2012. 6 th P. Bollard, R. Irish, S. Kamand, K. Murphy and M. Webster, Students, in The Immigration Kit, 8 edn (Sydney: The Federation Press, 2008), pp. 87-89. 7 ibid., p.92. 8 ibid., p.95.

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error in application of the Migration act by the DIAC, minister or merits based review; hence their rejection of evidence extraneous to a point of law. A merits based review comes to verdict in consideration of all and any relevant evidence provided by the applicant. Merits based reviews may be sought via the Migration Review Tribunal (MRT) and/or Administrative Appeals Tribunal (AAT); these tribunals are termed portfolio tribunals. The Refugee Review Tribunal (RRT), although part of the merits based review process, deals exclusively with appeals germane to protection visas; hence its tangential relevance to the student visa dispute process. Ministerial intervention by the Minister of Immigration and Citizenship completes the review process, though it does not belong to either of the two categories; it does however, by function, lean towards the merits based review process nonetheless, more so than the judicial review category.

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Initial Student Visa Revocation

Migration Review Tribunal

Administrative Appeals Tribunal

Federal Courts

Ministerial Review

Figure 1 - Student Visa Revocation Review Process Source: George Karam 2012

Figure 1 demonstrates the sequential process of appeal in the review process of a revoked student visa. Noticeably, ministerial intervention may be sought and granted at any stage, regardless of ongoing or pending judicial reviews.9 Although the four review methods are objectively similar, they differ in various intrinsic aspects, such as legal capacity to overturn decisions and the manner by which they function; these will be discussed in greater depth.

Lawhandbook. (2012). Other Merits Based Reviews: Australian Visa Cancellation. Available: http://www.lawhandbook.org.au/handbook/ch22s01s07.php#Ch135Se57609.htm. Last accessed 3 Sep 2012.

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The Migration Review Tribunal (MRT)

The Migration Review Tribunal (MRT) is the first review option for a noncitizen who has their student visa revoked. The tribunal reviews visa and visarelated decisions made by delegated officers of the minister (delegates) within the Department of Immigration and Citizenship (DIAC) (department); though student visa revocations on character grounds fall under the jurisdiction of the Administrative Appeals Tribunal. The MRT aims to provide an independent and merits based review that is fair, just, economical, informal and quick. The tribunals members are appointed by the Governor-General and do not necessarily possess DIAC experience. The jurisdiction, power and procedural process of the MRT are set out in Part 5, DIVISION 3 of The Migration Act of 1958; SECT349 specifically stipulates the powers delegated to the MRTthese powers refer primarily to the tribunals overruling capacity over the Department of Immigration and Citizenship s initial decision; Part 5 of the Act allows the tribunal to accept new evidence not previously submitted to the Department of Immigration and Citizenship.10

Unlike judicial proceedings, MRT hearings are informal, hence direct between the assessor, termed Presiding Member, and the applicant, such that they are termed inquisitorial. Generally, MRT hearings require only one sitting and do not demand or necessitate legal representation on part of the review applicant. Nevertheless, review applicants must pay a $1540 fee at the commencement of the MRT review process.

From an assessment standpoint, the Presiding Member does not deliver an

10

P. Bollard, R. Irish, S. Kamand, K. Murphy and M. Webster, Review of Migrant Decisions , in The Immigration Kit, th 5 edn (Sydney: The Federation Press, 2005), pp. 182 -189.

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outcome at the conclusion of the hearing; a decision is made when the presiding member has concluded examination of all evidence presented in the tribunals sitting; applicants should expect a decision 28 days after the hearing - 150 days from case lodgment.11

In handing down a decision, the tribunal prepares a written record of the decision and the underlying reasons. Copies of this statement are provided to the review applicant and to the department; MRT and AAT are not obliged to disclose decisions to the public. If the tribunal affirms the decision under review, it has decided that the delegates decision should not be changed ; hence the delegates decision stands. If the tribunal sets aside the decision under review, it has decided that the delegates decision should be cha nged; the tribunal may substitute the delegates decision . If the tribunal remits the decision under review, it has decided that the del egates decision should be reconsidered; accordingly, the department is required to reconsider the application, taking regard of any directions made by the tribunal. If the tribunal decides that it has no jurisdiction to review the delegates decision, the tribunal has decided that it has no power to review the delegates decision. 12 If the review applicant is not satisfied with the MRTs decision, an appeal may be sought through the Federal Courts.

The case N01/07393 [2009] MRTA 8274 (6 November 2009) demonstrates how the Migration Review Tribunal may exercise its delegated power under The Migration Act of 1958 to set aside a visa revocation where it deems sufficient under law. In the case, Mr Lou, Phong Chou, the review applicant,

11 12

ibid., p.190. ibid., p.192.

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had his student visa revoked by the Department of Immigration and Citizenship on the grounds of breaching the 20 hours per week work restriction on his visa. The Department of Immigration and Citizenship based their decision on a pay slip which totaled 32 hours of work. Numerous cash deposits into Mr Lous account were considered cash payments for hours not recorded on previous pay slips. Mr Lou alleged that his boss at AAA Furniture had made a calculation error in his October pay slip. Mr Lou presented evidence of a bank transfer made to his boss equating to the overpaid amount. Pay slips for the 7 previous months of employment were also submitted to the tribunal. Mr Lou established that the cash deposits originated from his maternal aunty who had been asked by Mr Lous parents to take care of him whilst in Australia. The MRT was satisfied with Mr Lous evidence and set aside the decision made by the delegate. Mr Lous student visa was subsequently reinstated. On a different note, the MRT has an obligation under Part 5, Division 9 of The Migration Act of 1958 to refer cases involving revocation on character grounds to The Administrative Appeals Tribunal, delivering a no jurisdiction decision.13

In the case Majid, Razza [2005] MRTA 73 (14 July 2005), the Department of Immigration and Citizenship had revoked Mr Majids student visa having been found guilty of assault and battery of his girlfriend. The MRT delivered a no jurisdiction ruling referring the case to the Administrative Appeals Tribunal

13

Glasslawyers. (2012). Migration Review Tribunal: The Process. Available: http://www.glasslawyers.com/services/immigration/appeals/migration_review_tribunal.htm. Last accessed 3 Sep 2012.

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as the delegates revocation decision was based on character grounds.14

Federal Courts

In its delicate tapestry, The Migration Act of 1958 efforts to impose constricted precincts on judicial review of decisions to the Federal Magistrates, Federal, and High Courts - dubbed the Federal Courts of Australia. To a certain degree, the Administrative Decisions (Judicial Review) Act 1977 (Cth) vested the federal courts with appellate jurisdiction on visa related decisions; yet, as noted in Section 474 of The Migration Act, decisions of immigration officers and portfolio tribunals are deemed private clause, hence final and absolute; accordingly, they must not be appealed against, reviewed, questioned or quashed in any court. 15 Section 75(5) of the Australian Constitution supersedes section 474 of the Migration Act by permitting aggrieved applicants to review decisions of Commonwealth officers; this is summarized in the High Courts statement no decision may be deemed lawful where jurisdictional error is made, thus, no government can defend unlawful decisions. An appropriate prerogative writ is granted by the High Court where a decision is judged unlawful. 16 Recent amendments to the Migrations Act (subsection 476 (2)) have given the Federal Magistrates Court similar original jurisdiction as the High Court via paragraph 75(v) of the Australian Constitution. Moreover, section 476A of the Migration Act limits the original jurisdiction of the Federal Court, specific to
14

L. Berg and M. Crock, Appeals and Judicial Review , in Immigration, Refugees and Forced migration (Sydney: The Federation Press, 2011), pp. 240 -243. 15 ibid., p.247. 16 ibid., p.253.

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conditions therein. 17 The Migration Act, appropriate to sections 477 and 486A, stipulates that an application for review to any of the federal courts must be made within 28 days of the actual not deemed notification of decision; an absolute time limit is set at 84 days. The High Court however, considers the time limits unconstitutional, hence insufficient in law. 18 Objectively, appeals in the federal courts should only be made on a point of law, rather than on a finding of fact by DIAC or the MRT/RRT. Appeals to the Federal Courts entail the services of legal specialist with meticulous knowledge of migration and judicial law; this demands exorbitant legal fees on part of the review applicant. The High Court may incur DIACs legal costs against the applicant if the appeal is unsuccessful. In and of themselves, the federal courts follow a sequential appeals process, wherein an appeal may be sought for decisions handed in a subsidiary federal court.19(Refer to the figure 2 below)

17

FMC. (2012). Federal Court Jurisdiction: Review of Migration Decision. Available: http://www.fmc.gov.au/services/html/migration.html. Last accessed 3 Sep 2012. 18 Migration Act of 1958 - SECT 477 and 476A. 19 L. Armstrong, et al, Commonwealth Constitution , in Immigration, Practice and Procedure High Court and Federal Court of Australia, volume 1(Sydney: Butterworth, 1991), pp. 39 -43.

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Federal Magistrates Court

Federal Court

High Court

Figure 2 Federal Courts Appeals Process Source: George Karam 2012

The case Sharmi v Migration Review Tribunal [2007] FCA 733 (3 May 2007) demonstrates the appellate capacity of the federal court vis--vis student visa decisions. Mr Sharmi unsuccessfully reviewed a student visa cancelation ensuing from low attendance in an enrolled university degree. The MRT established that Mr Sharmis intent to study was a decoy to settle in Australia permanently; its findings founded on Mr Sharmis credibility. The MRT upheld the DIAC decision. The judges of the federal court ruled that the court lacked the jurisdiction to review the decision on grounds of credibility; the MRTs decision was upheld.

Ministerial Review

The Migration Act of 1958, under sections 351, 417 and 501J, empowers the Minister for Immigration and Citizenship to intervene in cases pertaining to public interest. This discretionary power, although independent of the portfolio tribunals, requires an existing decision by either of the review tribunals. The

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status of pending judicial reviews does not inhibit the applicant from seeking Ministerial intervention; neither does it dispose the minister of the privilege to grant a favorable decision. Parenthetically, the Minister for Immigration and Citizenship is not obliged to exercise this privilege; indeed, seldom is it applied by the Minister. It is vital then, that review applicants not withdraw current judicial reviews in sole optimism of a favorable ministerial review decision. The decisions of the Minister for Immigration and Citizenship may not be challenged in any of the Federal Courts save the High Court.20

Whilst the powers of the minister have been noted, certain legal particulars hinder the ministers privilege to intervene in visa related decisions. These are set in Section 351 and 417 of The Act. These limits essentially apply if the case has been sent back to the DIAC for further consideration, the review tribunal was before 1 September 1994, or if the application made to the tribunal was invalid.21

Applicants may submit a request for ministerial intervention by letter addressed to the Minister. Along with no application fees, an applicant may request ministerial intervention at no set limit; nevertheless, seldom will the minister consider any subsequent requests following a rejection to intervene decision. It is paramount that review applicants consider the conditions appropriate to ministerial intervention - termed unique and exceptional circumstances as stipulated in the Migration Amendment (Complementary Protection) Act 2011 - prior to seeking ministerial intervention; these include but are not limited to: circumstances that may bring Australias obligations as

20

M. Bagaric, et al, Appeals and Judicial Review , in Migration and Refugee Law: Principles and Practice in nd Australia, 2 edn (Cambridge: Cambridge University Press, 2008), pp. 223 -224. 21 ibid., p.225.

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a party to the Convention on the Rights of the Child (CROC) into consideration; strong compassionate circumstances, such, that failure to recognise them would result in irreparable harm and continuing hardship to an Australian citizen or permanent resident should you leave the country; exceptional economic, scientific, cultural or other benefit to Australia. These conditions must be substantiated with evidence, documentary or otherwise. 22

Conclusion Student visa revocations account to a significant portion of visa revocations by the Department of Immigration and Citizenship. The dispute resolution / review options, whilst numerous, require an able awareness of the Migration Act of 1958 and its parameters. Merits based reviews or portfolio tribunals though less formal when juxtaposed to judicial reviews may appear somewhat convoluted to applicants, particularly international students with ordinary English proficiency; the lack of mandatory legal representation, whilst economically advantageous, may divest the applicant essential legal counsel when considered in light of the tribunals final and absolute jurisdiction as stipulated in the Migration Act of 1958. The judicial review process in the federal courts, convoluted as it is, consumes time and money, bearing in mind the psychological encumbrances weighed on the applicant. Perhaps at first glance, Ministerial intervention may be considered a fitting alternative to the aforementioned; but it is not common, neither is it specific to international students; it appears more humanitarian for refugee applicants hence the

22

Immi. (2012). Visa: Circumstances for Ministerial Intervention. Available: http://www.immi.gov.au/refugee/circumstances.htm. Last accessed 3 Sep 2012.

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underlying conditions. It may be synthesized that non-citizens with revoked student visas should follow the chronological review processes demonstrated in figure 1; seeking legal counsel immediately, resorting to judicial reviews if merits based reviews are exhausted. Ministerial intervention should only be sought if one of the unique or exceptional circumstances noted in the Migration Amendment (Complementary Protection) Act 2011 is present.

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References Administrative Appeals Tribunal Act 1975 (Cth), s 43(1) Beyderwellen.com (2012) Australian Visa Cancellation Information . [online] Available at: http://www.beyderwellen.com/immigration-practiceareas/cancellations.htm [Accessed: 03 Sep 2012]. Bollard, P. et al. (2008) The Immigration Kit. 8th ed. Sydney: The Federation Press. Bollard, P. et al. (2005) The Immigration Kit. 5th ed. Sydney: The Federation Press. CROCK, M. E., & BERG, L. (2011). Immigration, refugees and forced migration: law, policy and practice in Australia . Annandale, N.S.W., Federation Press. Fmc.gov.au (2007) Migration jurisdiction of the Federal Magistrates Court of Australia. [online] Available at: http://www.fmc.gov.au/services/html/migration.html [Accessed: 03 Sep 2012]. Glasslawyers.com (2012) Migration Review Tribunal Process. [online] Available at: http://www.glasslawyers.com/services/immigration/appeals/migration_review_ tribunal.htm [Accessed: 03 Sep 2012]. HANKS, P. J. (1991). Practice and procedure, High Court and Federal Court of Australia. North Ryde, Butterworths. Immi.gov.au (2012) Student Visas. [online] Available at: http://www.immi.gov.au/students/students/chooser/overview.htm [Accessed: 03 Sep 2012]. Immi.gov.au (2011) Unique or Exceptional Circumstances Compelling Ministerial Intervention. [online] Available at: http://www.immi.gov.au/refugee/circumstances.htm [Accessed: 03 Sep 2012]. Lawhandbook.org.au (2012) OTHER MERITS REVIEW BODIES. [online] Available at: http://www.lawhandbook.org.au/handbook/ch22s01s07.php#Ch135Se57609.h tm [Accessed: 03 Sep 2012]. Migration Act 1958 (Cth), ss 351, 407, 501A(1)(a), 501A(1)(d), 501A(2), 501A(3). RODAN, C., & RODAN, E. (2009). Migrating to Australia: a guidebook. Scottsdale, Ariz, Life Success Pub. VRACHNAS, J. (2008). Migration and refugee law: principles and practice in Australia. Cambridge, Cambridge University Press.

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