Appeal Failed? Read this: Fed Court decision; Short not so sweet!

A Federal Circuit Court decision that was handed down on 15 July 2016 by Justice Neville: Al Mamun v Minister for Immigration & Anor (2016) FCCA 1777. 

The case was about a review of an application for a student visa. As noted by MikeArch the application was refused for adequacy of funds to meet living and tuition costs.

What happened in this case was that there was an exchange during the hearing between the applicant and the Tribunal member concerning the bank statements that the applicant sought to rely upon to demonstrate to the member that he did in fact satisfy requirements concerning the adequacy of funds. After the hearing, the applicant sent a copy of a further bank statement to the Tribunal.  On receiving this second bank statement, the Tribunal member issued a decision in which he stated that:

“The applicant’s response (concerning whether he satisfied financial capacity requirements) has been to submit a bank statement without comment. There is no apparent evidence from that statement or any other source that the Applicant had access to those funds or that he now has access to funds for the purposes of undertaking further study. The Tribunal has formed the view that the Applicant has had sufficient time and opportunity to provide the evidence required from him regarding his ability to satisfy the financial requirements and it finds that he has not provided sufficient evidence to indicate that he does satisfy those requirements.”

What happened:

The first indication, as reflected in Justice Neville’s judgment, was that the Tribunal’s decision was “very short”.  Justice Neville observed that the Tribunal’s decision ran to only 18 paragraphs.  His Honour stated that:

“In such short compass, it is difficult to see how the Tribunal carried out its statutory function to weigh evidence and give due consideration to it against the claims made by the Applicant”.

Here,  His Honor concluded that the Tribunal did not “weigh” the evidence that the applicant had given at the hearing concerning his bank statement, or the evidence of the second bank statement that was provided following the hearing. It was Justice Neville’s finding that what the Tribunal had done was to simply reject the second bank statement that was provided after the hearing as a “document provided without comment” and that it then declared that the applicant had had a sufficient opportunity to submit the financial information.  Justice Neville described the Tribunal’s assessment as being merely a “blanket dismissal” of the financial information that the applicant had sought to provide, and that there had been no “weighing” process at all by the Tribunal.

So if the Tribunal gives a very short determination, and doesn’t seem to show that it has gone through a process of carefully “weighing” or evaluating the applicant’s claims, then that may be at least a starting point for considering that the Tribunal has not carried out a proper review, and that maybe grounds to consider taking the case to the Federal Circuit Court.

If you or anyone you know has had a visa refused or an AAT Appeal rejected particularly a student visa matter please speak to one of the lawyers at our office for thorough advice on your options.

Call   03 9614 0218 or email         info@arlaw.com.au

to arrange a free initial 30 Minute consultation for general advice at our Melbourne office.

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