AAT hearing – you have made a valid application to the AAT (Administrative Appeals Tribunal) to review the Department of Immigration (Department of Home Affairs) decision to refuse you a visa, you will normally be invited to attend a hearing. Click here to find out the types of decision that can be reviewed by the AAT.
At the AAT hearing you will be invited to give oral evidence and present argument as to why you think the Department of Immigration is wrong to refuse you a visa. It is therefore important that you know what to say and not say. By way of an example, in the case of Inderjit v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 217, the Department of Immigration refused to grant Inderjit a student visa because she did not satisfied cl. 500.212 (GTE criteria), that is, she is not a genuine student (click here to learn more about student visa application).
Clause 500.212 states that an applicant is a genuine student if he or she intends genuinely to stay in Australia temporarily. Inderjit applied for a merits review at the AAT.
At the AAT hearing it was confirmed that Inderjit first came to Australia in 2009 to join her husband who came as a student in 2007. From 2009 to 2012, Inderjit applied for a student visa with her husband as the secondary applicant. From 2012 to 2016, her husband had a Subclass 457 temporary visa with her as the secondary visa holder. In August 2016, Inderjit applied for a student visa with her husband as the secondary applicant. This application was refused because the Department of Immigration was not satisfied that she is a genuine student, therefore did not satisfied cl. 500.212 GTE criteria.
The AAT accepted that Inderjit had successfully obtained a diploma in 2016 and an advanced diploma in 2017. However, the AAT stated that it had significant concerns about the motives and intentions of Inderjit enrolling in a Bachelor of Business degree and it was not satisfied that she is a genuine temporary entrant for stay as a student.
At the time of the AAT hearing, Inderjit had spent 8 years in Australia claiming to be a temporary resident. Inderjit’s husband had spent 10 years in Australia on temporary visas (student visa and Subclass 457 visa).
At the AAT hearing, Inderjit told the Tribunal that she intends to pursue permanent residency if an opportunity presents itself. In another word, both Inderjit and her husband intend to remain in Australia until there is an opportunity to apply for a permanent visa. The Tribunal formed the view that Inderjit and her husband are using the student visa programme to maintain residence until they are able to apply for a permanent visa. The Tribunal said that Inderjit has a qualified intention to stay as a temporary visa to wait for an opportunity to apply for permanent residency.
From the time they arrived in Australia, Inderjit has only travelled back to India once for about 1 month and her husband travelled back twice. All of Inderjit and her husband family members live in India and none living in Australia.
What does “genuinely intends to stay in Australia temporarily” mean?
Court Decisions
Justice Logan in Saini v MIBP [2016] FCA 858 at [30] said that what is required is an evaluation of intention at the time of decision, and if at this time there is a settled intention to later seek a visa that will lead other than to temporary residence, that intention is not consistent with an intention to genuinely to stay temporarily. What this mean is how long the visa applicant intends to stay in Australia and nothing else.
In Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061 Allsop CJ said at [8] that ‘a genuine applicant for entry and stay as a student’ involve value judgements about the applicant and his or her genuineness to enter and stay as a student. It is whether the applicant is a genuine applicant for entry and stay as a student. Allsop CJ at [13] said that cl. 500.212 refers to the applicant’s intention as to how long to stay and whether the applicant is genuine in his or her desire to be a student. That is, the length of stay, there is a genuine intention to stay temporarily, there is an intention to comply with any visa conditions, and any other relevant matter.
What this mean is that the state of mind of the visa applicant is a relevant matter, because cl. 500.212 requires the applicant to satisfy the decision maker that he or she has a genuine intention about the length and circumstances of his or her stay in Australia. The decision maker can take into consideration the intention of the visa applicant. It also mean that in deciding whether a student visa applicant is a genuine student, there is no limitation as to the way in which a cl. 500.212 decision can arrive at the findings as to what the visa applicant’s intention is or what weight to give when deciding if the applicant intends genuinely to stay in Australia temporarily.
In Inderjit’s case, the AAT found that she was using the student visa program to maintain residence in Australia until an opportunity presented itself for her and her husband to apply for permanent residency.
AAT Hearing | What to say and not say
AAT Hearing | What to say and not say
The above case illustrates the point that at the AAT hearing you must think carefully before you answer a question posted by the Member as it may have adverse implication on your AAT merits review.
Further, you must also think about the kind of visa you have applied, for eg, if you applied for a student visa, your intention is to study for the course that you have enrolled, and you intend to return to your home country after completing the course. A student visa is for you to stay temporarily in Australia so that you start and finish your study. It is not for you to work, even though the visa allows you to work, and not for you to remain in Australia so that you can wait for the right opportunity to apply for a permanent visa, even though there is nothing to stop you from applying unless your visa condition does not allow you to make further visa application.
If you win, you will receive this letter from the AAT
50% AAT fee refunded
If the AAT remits or set aside the Department’s Decision to refuse or cancel your visa or substitute the Department’s Decision to refuse your application (eg, nomination application), the Tribunal will refund half of your AAT application fee.
In some cases the Tribunal may be able to grant you the visa, click here to learn more. Even if the AAT decided to affirm or agree with the Department to either refuse you a visa or cancel your visa, you can still request the Minister to intervene and grant you a visa (click here to learn how to seek ministerial intervention).
More importantly, you are only here to study and not to stay indefinitely by applying for a permanent visa otherwise the decision-maker may think that your are not a genuine student and your stay is not as a student.
It is important that you tell the Tribunal why you should be granted the visa or why your visa should not be cancelled. The Tribunal is required to consider all of your claim, if not, the Tribunal may have made a mistake and you can appeal the refusal to the Court (click here to learn more).
In some cases the AAT can grant you the visa you have applied, click here to learn more.
Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) to help you understand about AAT hearing or click here to learn more about AAT.
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This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.
