There are times when you read about a migration case and when you get to the end of the story you can feel nothing but complete sympathy for the applicant, even if, strictly speaking, the decisions made by the Department, the Tribunal and the Federal Circuit Court might have been “legally correct”.

Perhaps in those types of cases, in just happens to be the case that there might not be a migration pathway that suits the applicant’s circumstances.

And when you read about a case like that you wonder: Is there really not a better way? Shouldn’t there be some way to harmonise what our instincts may tell us should be the humanistic and compassionate approach with the framework of the Migration Act and Regulations? Or would the system collapse into an incoherent and unintelligible mess if there is too much room for “flexibility” and sympathy in taking into account the particular circumstances of an applicant and their family?

A prime example of the kind of case which can cause one to ponder these considerations was a decision handed down by Judge Heffernan of the Federal Circuit Court on 10 May in Mehmeti v Minister for Immigration & Anor (2016) FCCA 1057.

The circumstances in the case were as follows: the applicant was a woman who was born in Albania. She was a citizen of Italy. She originally travelled to Australia in August 2012 on a “tourist visa”, with her three children. At the time, she was estranged from her husband (also the childrens’ father), who was living in Australia. The purpose of this visit was for the children to see their father, who they had not seen for two years. After the applicant arrived in Australia, she reconciled and “re-partnered” with her husband.

The precise visa status of the father is not identified in the Court’s judgment. Evidence concerning his status was presumably not brought forward before the Tribunal. In any event it was not clear whether he was working in Australia under the authority of a temporary work visa or whether he was an Australian citizen, permanent resident or eligible New Zealand citizen.

It appears (again it is not clear) that the husband/father was “none of the above”.

For it would seem that if he were, the obvious course would have been for the applicant to have sought a partner visa (or for the members of the family unit to be included in his temporary work visa (457?)) if he held such a visa. The Court’s judgment recites that the applicant had not applied for a partner visa, so, for whatever reason, that option must not have been open to her.

So, the visa pathway that the applicant did pursue was for a student visa.

And, extremely unhappily for the visa applicant and her family, that student visa application was refused by the Department, and the Court ultimately concluded that the Tribunal had not committed jurisdictional error when it affirmed the Department’s decision.

So what went wrong with the student visa application?

It was found by the Tribunal that the applicant did not satisfy the criterion of clause 572.223(1)(a) of the Regulations that she be a genuine applicant for entry and stay in Australia as a student.

The evidence that weighed against the applicant before the Tribunal was as follows: the applicant applied for the student visa in September 2012, very shortly after her arrival in Australia with her children in August 2012. Through her application, she proposed to study for a Diploma of Hospitality. In her application, she stated that she wanted to pursue this course of study because cooking was her passion. While she held a certificate as a result of having completed a course as a cook in Albania, she had not worked in a commercial kitchen since 1998. It also weighed against her in the Tribunal’s eyes that she had not undertaken any study in hospitality during the 23 month period between the time that she had lodged her visa application and the Tribunal hearing. (At the hearing, the Tribunal member indicated that the fact that the applicant had not started studies might cause him to take the view that she was not a genuine applicant for entry and stay as a student). It also counted against the applicant that at the hearing she had candidly stated that when asked why she wanted to study in Australia that the original purpose of her trip here with her children had been to enable them to see their father, that they wished to remain close to him, and that being the case, she wished to “follow her own road” while in Australia by studying hospitality.

In their application for judicial review, the applicant’s lawyers contended that the Tribunal had committed jurisdictional error by superimposing as an “essential criterion” for the grant of a student visa that the proposed course of studies must be the “sole or primary purpose” for the travel to Australia.

Judge Heffernan held that if the Tribunal had imposed a requirement that the proposed study must be the sole or primary purpose, that would have amounted to jurisdictional error.

However, in Judge Heffernan’s view, what the Tribunal had actually done was to carry out an assessment as to whether the applicant was a genuine applicant for entry and stay as a student. Judge Heffernan found that in carrying out this exercise, it was appropriate for the Tribunal to weigh up the various factors in the case, and to focus on the present status of the applicant’s relationship with her husband and her desire that her children continue to have a meaningful relationship with their father. Indeed, Judge Heffernan found that the Tribunal was obliged to have regard to Direction 53 (Assessing the Genuine Temporary Entrant Criterion for Student Visa Applications) and to give weight to circumstances which suggest that the visa is being sought primarily for maintaining residence in Australia, and not to enable a temporary stay for the purpose of study.

So, to summarise the holding of the case, it is that: While it is not necessary that the proposed course of study be the sole or primary purpose of the applicant’s wishing to be in Australia, it is nonetheless proper for the Department and the Tribunal to examine whether the applicant’s underlying motivation for seeking the student visa is to be able to continue residence in Australia.

There is a valuable practical lesson to be taken away from the outcome in this case: if a person is seeking a student visa, it will certainly buttress their case if they enroll in a course and engage in their proposed course of study while they are awaiting a hearing against the refusal of their student visa application before the Tribunal. That evidence would undoubtedly help persuade the Tribunal that the person does indeed indent to study in Australia, and that they therefore meet the criterion of being a genuine applicant for entry and temporary stay in Australia as a student.

The story in this case also raises another question: Suppose the applicant’s husband had become an unlawful non-citizen and that was the reason why he was not in a position to sponsor his wife and children for a partner visa after their relationship was restored. Should Australia’s migration laws have some additional provisions for “amnesty” for unlawful non-citizens that would enable them (after some period of time?) to sponsor their immediate family for migration to Australia?

Such an approach would clearly cut against the seeming present consensus to take a “tough stand” against unlawful non-citizens. But is a “tough approach” the “right approach”? Is it too “inflexible” or “harsh”? Should there be some “compassionate” pathway to enable unlawful non-citizens to get on a path to lawful status and to re-unite with their families?

Courtesy of Michael Ephraim Arch from Migration Alliance