Australian Immigration Daily News

Exactly where do the boundaries of the Administrative Appeals Tribunal’s jurisdiction? 

Or, to put the question in another way, under what circumstances can you seek merits review against the refusal of a 457 visa application? 

This has perhaps been one of the most intensively litigated questions in the Federal courts over the last couple of years.  

Is it ever possible to get the Administrative Appeals Tribunal to “reconsider” a decision that is adverse to an applicant? 

For example, suppose that a decision of the Tribunal was “infected by jurisdictional error”. 

Is it possible in such circumstances simply to ask the Tribunal to reconsider the decision, rather than making an application to the Federal Circuit Court?  

There has been another case that illustrates the pitfalls and perils that can result in the refusal of an application for a Subclass 485 (Temporary Graduate) visa application. 

Readers may recall that just recently, on 13 July 2016, I posted an article about the decision of Judge Burchardt in the case of Nguyen v Minister for Immigration & Anor (2016) FCCA 1523. 

In Nguyen, an application for a 485 visa was refused, and the refusal was affirmed by the Tribunal, on the basis that the application was not “accompanied by” evidence that the applicant had applied for a skills assessment.  

What if your client flunks the character test due to having a substantial criminal record in Australia, and has a checkered immigration history to boot? 

Does that mean that his Partner visa application is, as lawyers love to say: “Doomed to failure”? 

A decision that was handed down by the AAT last week tells us: “Not necessarily”! 

If you don’t believe that the specific words that are used in the Migration Regulations can make a difference to the prospects for success of a visa application, then a case that came out of the Federal Circuit Court yesterday, Nawaqaliva v Minister for Immigration & Anor (2016) FCCA 2080 (17 August 2016) is “proof of the pudding”! 

And if you are assisting a client with an application for a Carer visa – Subclass 116 – that was made before 9 November 2009 – then, as we like to say back home in Brooklyn, New York: “Do I ever have a case for you!”.  

You betcha!