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Michael Arch

Michael Arch

Michael Ephraim-Arch has not set their biography yet

Posted by on in General

Under what circumstances can an applicant lose the right to appear at a hearing before the Tribunal?

Does a failure to give information, comments or response to a written invitation from the Tribunal within the time period specified by the Tribunal always result in the forfeiture of the right to a hearing?

This very important question concerning the procedural rights of applicants before the Tribunal was “re-visited” last week in a case that was decided by the Full Court of the Federal Court, Singh v Minister for Immigration and Border Protection (2017) FCAFC 67 (27 April 2017).

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Posted by on in General

The Migration Alliance has received a report about a bizarre, strange, astounding and insane situation from one of our colleagues!

Here’s the story:

A person who was charged with a criminal offence, and who out on bail and awaiting sentence in about a month’s time, approached our colleagues for advice and assistance.

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If it wasn’t already clear enough, a decision of the Full Court of the Federal Court that was handed down yesterday, 26 April 2017, emphasizes just how excruciatingly difficult it is to challenge a decision of the Minister to refuse to revoke the mandatory cancellation of a visa on character grounds.

In the vast majority of cases, challenging such decisions by the Minister will have a degree of difficulty analogous to trying to push a huge boulder up a very steep hill.

In order to successfully overturn a decision to refuse to revoke the cancellation of a visa in Federal Court, the visa holder must show that the decision was “infected” by jurisdictional error.  There is no such thing as “merits review” of the refusal to revoke the mandatory cancellation. And the grounds for establishing jurisdictional error are extremely narrow.

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The Migration Alliance has learned that Angela Julian-Armitage, the President of our sister organisation, the Migration Institute of Australia, appeared on the national ABC news on 20 April 2017 and has said that she "doesn't have a big issue with the changes" and that the changes amount to no more than "re-branding" and "shoring" up of the temporary skilled migration programme.

It should be noted that during this interview, Ms Julian-Armitage was apparently speaking in her official capacity as the President of the MIA, and was not stating her personal views.

If you'd like to see the full interview you can watch it on You Tube through this link. 

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What is the consequence if the Secretary of the Department does not forward to the Tribunal all documents that are relevant to a review, and the review applicant conducts her/his case on the mistaken assumption that a certain critically important document is before the Tribunal when it is actually not before the Tribunal?

Does that amount to jurisdictional error which would warrant the quashing of an AAT decision that is adverse to the applicant?

A recent decision of the Full Court, BBS15 v Minister for Immigration and Border Protection (2017) FCAFC 61 (13 April 2017) tells us that it is.

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