Why is it so Important to Consult an Accredited Specialist, instead of a Migration Agent? - Student Visa Cancellation

Background Facts

In a recent case that came down in early September 2024, the Applicant is a citizen of China who came to Australia with a Student (Temporary) Higher Education Sector visa (sub 573). The Department exercised its discretionary power under section 116(1)(b) to cancel the Applicant’s visa in December 2017, after the Minister had discovered he did not meet his compliance with the specific visa conditions 8516, which is to continue to comply with the visa conditions because the Applicant failed to enrol in the prescribed course on his visa application. 

AAT’s Decision

His migration agent represented him to present arguments at the Administrative Appeal Tribunal (AAT). It was submitted that the Applicant failed his English language test which made him unable to enrol in the prescribed course. Given that the Tribunal was satisfied the Applicant failed to comply with the condition 8516, and after considering all the other relating factors, including that the Tribunal noticed the Applicant enrolled in a higher education course as required by the visa, just two days before the Tribunal hearing, the AAT decided to affirm the decision to cancel the Applicant’s visas. The Applicant then subsequently sought judicial review from the Federal Circuit and Family Court of Australia (FCCA). 

Grounds of the Applicant for Judicial Review

Two grounds: 

1. The Tribunal failed to consider the material circumstances of the applicant presented in this case and mistakenly made the decision; and 

2. Unfair as it is the migration agent’s fault. 

The Relevant Law 

Section 116(1)(b) of the Act is a discretionary power that allows the Minister to cancel a visa if the visa holder has failed to comply with the visa’s condition. In this case, the Applicant failed to comply with his visa condition 8516. This gives rise to a ground for the Minister to decide whether to cancel his visa after considering all the circumstances. 

FCCA’s Decision

This time the Applicant represented himself at the FCCA hearing. First, he submitted that the previous grounds he relied on for the application were drafted by his migration agent, which he did not understand and could not elaborate on. However, The Minister would only make a decision based on what had been submitted. It is not the Tribunal’s duty to consider what had not been submitted. Therefore, the Court found that the Tribunal had carefully considered and correctly identified all the submitted material and evidence presented by the Applicant, therefore there is no jurisdictional error in exercising its discretion to decide not to revoke the cancellation decision. 

The Applicant also submitted that the Tribunal’s decision to cancel the visa was unfair because it was his migration agent’s fault – they gave the wrong advice and did not handle his situation timely (went for a holiday in Gold Coast). He further explained that he had engaged new migration agents and lawyers after the visa’s cancellation, which all suggested that his first migration agent’s conduct limited his chance to request a revoke for the cancellation of the visa. 

The Court informed the Minister to examine this additional ground and it concluded that the Applicant’s migration agent’s conduct can only be said to be incompetent, but not fraudulent. From a legal point of view, the fraudulent act is different from incompetence advice and only a fraudulent act gives rise to jurisdictional error. The Court found no evidence in this case that support the migration agent committed any fraudulent conduct. Therefore, no jurisdictional error is found in relation to this ground as well. The agent’s incompetent conduct cannot seem to affect the Tribunal’s making its decision.

Outcome

The application is dismissed. 
 

Key takeaways 

This seems to be a relatively simple and straightforward case, but the detail is key. It is always too late when you discover problems with your current visa because of the reliance on poor advice given by an incompetent migration agent. Getting advice from a reliable and reputable Accredited Specialist will save time and effort, as well as reduce your chances of getting into a chaotic situation.

How Can Agape Henry Crux Help You

If you find yourself in a similar situation or seeking professional legal advice on your Australian migration matter, do not hesitate to contact us at Agape Henry Crux. You can book a Migration Planning Session with one of our immigration lawyers to seek professional advice by calling 02-83105230 or email us to book in a time at info@ahclawyers.com.

We speak fluent English, Mandarin, Cantonese and Malay. If these aren’t your language, we can also help you arrange an interpreter.

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