Australian Immigration Daily News

Under what circumstances does the Tribunal have jurisdiction to hear an application for merits review of the refusal of an application for a 457 visa? 

That is a question that has been the topic of several recent cases that have been decided by the Federal courts. 

And there have several “variations on the theme” of this question! 

Suppose that when an applicant is filling out a visa application form, they make a mistake that might be totally innocent. 

For example,  suppose that when filling out the from, the applicant answers a question concerning her/his English language ability by stating that their IELTS test showed that her/his competency level was “proficient” when in fact the actual test report stated that it was really only at a “vocational” level.

And suppose that the applicant also provides the Department with the test report in support of the application. 

There has been yet another decision from the Federal Court which illustrates that having a personal history of residence in Australia from early childhood, powerful family ties to Australia, and virtually no connection to one’s country of origin is simply not enough to insulate a person from having his/her visa cancelled on character grounds. 

This decision, from the Federal Court, Renzullo v Assistant Minister for Immigration and Border Protection (2016) FCA 412 (22 April 2016) reinforces the lesson of the decisions handed down by the Full Court earlier this year in the Stretton and Eden  cases, namely,  that challenging a visa cancellation by the Minister on character grounds on the basis that the cancellation was “legally unreasonable” is likely to be very difficult, if not virtually impossible. 

The Renzullo case also brings home the point that just because a visa cancellation decision may appear “harsh or severe” (in the eyes of the visa holder) that fact alone is insufficient to give rise to a finding of legal unreasonableness. 

Suppose it takes the Tribunal what seems like forever and a day to hand down a decision after a hearing has been held? 

Is justice delayed justice denied? 

Or to put it another way, can the passage of a long period of time without a decision amount to jurisdictional error, so that an adverse decision by the Tribunal will be quashed and the case sent back to the Tribunal for re-determination “in accordance with law”? 

What is the proper test for assessing an application for approval of a nominated position under the Regional Sponsored Migration scheme? 

This question came before the Federal Circuit Court in a case that was decided on 29 April 2016, Bharaj Construction Pty Ltd v Minister for Immigration & Anor (2016) 902. 

Although this case addressed a version of Regulation 5.19 that is no longer in force, it may still have relevance to ongoing cases – namely, matters where the nomination was made under the same regulation and is the subject of a review before the Tribunal or the courts that has not yet been finalised, or nominations under the version of Regulation 5.19 that is now in force, and which require that the nominee will be employed on a full-time basis for a period of two years – namely the Temporary Residence Transition and Direct Entry Streams for Employer Nomination Scheme visas (subclass 186).