Australian Immigration Daily News

How is it possible to know whether the Tribunal has committed jurisdictional error in reviewing the refusal of a Partner visa application?

Consult a crystal ball? An oracle? A spiritualist? A Ouija board, or an “8” ball?

A recent decision of the Federal Court, handed down by Judge Reeves on 27 October 2017 – Sun v Minister for Immigration and Border Protection (2017) FCA 1270 ­- suggests that these “magical” or “occult” methods may not be needed to determine whether the Tribunal has fallen into error.  

How can you tell whether the Tribunal has committed jurisdictional error when it has refused to grant a waiver of Public Interest Criterion 4020?

And how can you know whether it is “worth it” for your client to challenge the refusal in the Federal Circuit Court? In other words, that there are at least “reasonable prospects for success” if your client fights the waiver refusal in the FCC?

Fortunately, a decision handed down yesterday by Judge Riley of the FCC in Melbourne provides some useful guidance: Bi v Minister for Immigration & Anor (2017) FCCA 2652 (1 November 2017).

What would you do?

Suppose you had to decide whether to revoke a visa cancellation?

Suppose the visa holder had compiled a lengthy criminal record during his stay in Australia?

Suppose that a person applies for a 457 visa, and after the application is made, the employer withdraws the nomination of the applicant, and then the Department refuses the visa application.

Can the applicant then seek merits review of the refusal of the visa application before the Tribunal?

To put the question another way, if the nomination of the 457 visa applicant is withdrawn by the sponsoring employer, does the Tribunal have jurisdiction to hear an application for merits review, or not?

How strict is strict, and how inflexible is inflexible?

Do the Migration Regulations elevate form over substance?

When the Regulations provide that an application must be “accompanied” by certain supporting evidence, does that mean that the evidence must be lodged “with” or “at the same time” as the application?