Australian Immigration Daily News

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.

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).

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.

Are Australia’s migration laws too rigid and inflexible?

Are they applied in a way that is too rigid and inflexible?

Do they leave too little room for compassion, or for unforeseen circumstances truly beyond an applicant’s control?

Does it seem to you that the Department is running a small “cottage industry” involving cancelling visas on character grounds?

If you have a look on Austlii, you can certainly get that impression!

Cases before the Tribunal challenging cancellations by delegates of the Minister. Judicial review applications in the Federal Court against decisions made personally by the Minister to cancel, or to refuse to revoke cancellation decisions made by delegates. Appeals to the Full Court from decisions of the Federal Court dismissing judicial review applications against cancellation decisions.