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. 

Labor senator Kim Carr told The Australian yesterday that he intends to proceed today with a disallowance motion of the Migration Amendment (Offshore Resources Activity) Regulation of 2015 which, if successful, could prevent the employment of highly skilled 457 or 400 visa workers on offshore oil and gas rigs.

The Labor plan if approved, could shut down critical parts of the sector, cost hundreds of millions of dollars and inflict substantial “reputational damage” on the country, notes the report.

Hundreds of foreign workers employed in Australia’s $200 billion offshore oil and gas sector would lose their work rights under Senator Carr’s plan which so far has provided no alternative to as to how these specialised skills will be replaced.

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”?