Australian Immigration Daily News

Is Public Interest Criterion 4020 valid? 

Does the PIC effectively deprive an applicant of the right to meaningful merits review of an adverse decision by the Department? 

These important questions were addressed in a decision that was handed down by Justice Perry of the Federal Court in the case of Thakur v Minister for Immigration and Border Protection (2016) FCA 473 (5 May 2016). 

There are times when you read about a migration case and when you get to the end of the story you can feel nothing but complete sympathy for the applicant, even if, strictly speaking, the decisions made by the Department, the Tribunal and the Federal Circuit Court might have been “legally correct”. 

Perhaps in those types of cases, in just happens to be the case that there might not be a migration pathway that suits the applicant's circumstances. 

And when you read about a case like that you wonder: Is there really not a better way? Shouldn't there be some way to harmonise what our instincts may tell us should be the humanistic and compassionate approach with the framework of the Migration Act and Regulations? Or would the system collapse into an incoherent and unintelligible mess if there is too much room for “flexibility” and sympathy in taking into account the particular circumstances of an applicant and their family? 

Imagine for a moment that you have received a phone call asking for assistance from a New Zealand citizen who is present in Australia on a Special Category visa. 

The person tells you that he has had his visa cancelled under the mandatory visa cancellation provisions of section 501(3A) of the Act because he has been convicted of sexually based charges involving a child, specifically, downloading child pornography from the Internet (in legalistic terms, accessing the material through the use of a “carriage service” as defined by the Telecommunications Act 1997.   

The person also tells you that he has made representations to the minister requesting that the visa cancellation decision made by one of the Minister’s delegate, but the Minister has refused to revoke the visa cancellation. 

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!