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Michael Arch

Michael Arch

Michael Ephraim-Arch has not set their biography yet

Posted by on in General

Exactly how should the “best interests of children” be considered in a case involving visa cancellation on character grounds?

Or for that matter, in any other migration decision?

For example, do the “best interests” of children override all other considerations?

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Can translation problems at the Administrative Appeals Tribunal be a source of jurisdictional error?

And if so, under what circumstances?

This is a question that must surely occur very frequently.

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What is the consequence if the Tribunal makes a jurisdictional error?

Will that necessarily mean that in each and every case where jurisdictional error has occurred, the case must automatically be remitted back to the Administrative Appeals Tribunal for a full re-hearing?

Suppose though that, even if there has been a jurisdictional error, there is an issue in the case, such that the criteria for the grant of the visa cannot possibly be satisfied.

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Claims of denial of procedural fairness can be a real life-saver!

If a visa application has been refused, and the refusal affirmed by the Tribunal, it may well be possible to get the Tribunal decision “quashed” in the Federal Circuit Court and sent back to the Tribunal for re-determination if it can be shown that the Tribunal did not afford the applicant procedural fairness.

The power of a claim of denial of procedural fairness was illustrated in a decision that was handed down by Judge Riley of the Federal Circuit Court in February of this year and that appeared on Austlii earlier this week:  CCM15 & Ors v Minister for Immigration & Anor (2017) FCCA 304 (23 February 2017).

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When does the Administrative Appeals Tribunal have jurisdiction to review the refusal of an application for a 457 Temporary Work (Skilled) visa?

The answer is not, fortunately or unfortunately, “Whenever it wants to!”

In all seriousness, the question of when the Tribunal does have jurisdiction to review the refusal of a 457 application has been one of the most “hotly litigated” issues before the Federal courts in recent years, and has resulted in a number of important decisions that provide guidance on the issue.

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