Australian Immigration Daily News

How can you tell whether the Tribunal has committed a jurisdictional error (and therefore know whether to recommend to your client that she/he pursue an application for judicial review in the Federal Circuit Court after the Tribunal has made a decision to affirm the refusal of a visa application)?

Perhaps this may seem to be a confounding, existential or metaphysical question, one that can cause you to run screaming down the hallways of your office, tear your hair out, have nightmares, set yourself on fire, jump off the Harbour Bridge, or resort to other “self-help” remedies to avoid having to think about the issue!

Well, if you feel this way, you can take comfort in knowing that you are not alone, and that the question of what is and what is not jurisdictional error is something that is capable of confounding the brightest legal minds in Australia.

Do you agree that Public Interest Criterion 4020, as interpreted by the Full Court in the famous Trivedi case, can sometimes operate to have (brutally) harsh results?

If you have any doubt, consider the case of Ashiq v Minister for Immigration& Anor (2018) FCCA 544 (7 March 2018), most recently updated on Austlii 31 July 2018.

The circumstances in this case were that the applicant, a citizen of Pakistan, originally applied for a student visa in February 2012. 

 Would you be willing to believe that there are occasions when an application for judicial review of a decision of the Tribunal is sometimes relatively easy?

And that sometimes the Tribunal makes an obvious mistake – one that is so obvious that you have to wonder why the case ever went to final hearing before a judge of the Federal Circuit Court? And why the Minister and his legal representatives did not simply concede that a jurisdictional error had been made, and that the case should be remitted to the Tribunal for “re-determination in accordance with law”?

Just such a case was recently reported on Austlii, Thapa v Minister for Immigration & Anor, (2018) FCCA 2182 (10 August 2018).

Crack. Crack. Crack. Crack!

Is the entire edifice of visa cancellation on character grounds in danger of collapse?

Maybe, but probably not.

How interesting!

It seems that there is a never-ending stream of decisions coming out of the Federal Court involving the cancellation of visas on character grounds.

Just yesterday, there was another one, Schmidt v Minister for Immigration and Border Protection (2018) FCA 1162 (7 August 2018).