Australian Immigration Daily News

It will come as no surprise to RMAs that the Administrative Appeals Tribunal (formerly the Migration Review Tribunal) is, like all human institutions, capable of making mistakes and, on the basis of those mistakes, “getting things wrong” and reaching a determination that is adverse to a visa applicant, when in fact the evidence should have led to a positive outcome in favour of the applicant. In fact, I can already hear a chorus of readers saying either "Amen!!!" or "For heaven's sake Michael, don't you think we all know that already!!!"

One can only be extremely thankful that the Federal courts exist in order to correct erroneous decisions by the AAT when they occur.  However, as will also be well known to RMAs, there is only very limited scope to challenge an incorrect factual finding by the AAT, as judicial review proceedings are generally limited to an assessment of whether the Tribunal has made a “jurisdictional error”:  for example, failing to have regard to a relevant matter,  assigning weight to irrelevant matter, or making an error of law.

Indeed, the limited scope of judicial review can cause one to wonder about the fundamental fairness and appropriateness of the hearing procedures at the AAT.  Granted, the AAT has a heavy case load that it must work its way through. But even accepting that is the case, should an RMA/migration lawyer really be required to “sit silently” at a Tribunal hearing and not be allowed to make oral submissions at the close of the hearing to direct the Tribunal member’s attention to matters of importance that are critical to the outcome of the case?

It is “so so so” important that the Administrative Appeals Tribunal (formerly the Migration Review Tribunal) “get the facts right”!

And when it doesn’t, the mistake about the facts can cause the AAT to commit “jurisdictional error” which can in turn prompt the federal courts to “quash” (overturn) the AAT’s decision.

That this is “so” was illustrated by a judgment of Judge Manousaridis of the Federal Circuit Court in the recently-decided case of Srestha v Minister for Immigration & Anor (2015) FCCA 22262 (28 August 2015). 

Can a child who is born in Australia to parents who are not Australian citizens or permanent residents acquire Australian citizenship if there are insurmountable practical difficulties in the way of securing citizenship in the parents’ home country? 

The Administrative Appeals Tribunal was called upon to consider this issue in the recently-decided case of KKRG and Minister for Immigration and Border Protection (Citizenship) AATA 635 (27 August 2015).

As RMAs may be aware, there is a clearly-defined pathway under the Australian Citizenship Act2007 for a child whose parents are not themselves Australian citizens to obtain Australian citizenship her/himself.

Is a person who is born in another country, but is then abandoned by their parents in Australia while still a child, entitled to Australian citizenship?

Our compassionate instincts may prompt us to think that the answer to this question should be “Yes” and that a person who has been left to fend for her or himself at a tender age should be given the benefit of Australian citizenship.

Whether one agrees with the proposition that there should be room to grant Australian citizenship on compassionate grounds or not, those feelings of compassion will conflict with the “hard reality” of Australian citizenship law as it now stands.  This was demonstrated by a decision of the Full Court of the Federal Court of Australia that was decided late last week, SZRTN v Minister for Immigration and Border Protection (2015). The judgment in SZRTN effectively confirmed the interpretation of the Australian Citizenship Act 2007 that was articulated in another similar case that was decided by a single judge of the Federal Court earlier this year, Nicky v Minister for Immigration and Border Protection (2015) FCA 174 (5 March 2015).

Is it “jurisdictional error” – and thus grounds for setting aside a Departmental decision to refuse a visa application – when a Departmental officer decides a visa application on the basis that she/he is “required” to take certain matters into account, when the applicable regulation only says that the officer “may” take the matters into consideration?

Does every jurisdictional error require that the underlying decision on the visa application be set aside?

Or does jurisdictional error only matter when it makes a material difference to the outcome of the visa application?