Australian Immigration Daily News

Is it ever possible to get the Administrative Appeals Tribunal to “reconsider” a decision that is adverse to an applicant? 

For example, suppose that a decision of the Tribunal was “infected by jurisdictional error”. 

Is it possible in such circumstances simply to ask the Tribunal to reconsider the decision, rather than making an application to the Federal Circuit Court?  

And if it is possible, under what circumstances is it possible? 

These questions were presented in a decision that was handed down by the Tribunal last week, Mora (Migration) 2016 AATA 4198 (15 August 2016).  

And in fact, the Tribunal considered the questions to be so unusual, and so important, that in order to answer them the Tribunal “re-constituted” itself as a panel that was composed of the Tribunal’s President, the Division Head of the Migration and Refugee Division, and a Senior Member. 

How was the question answered in Mora? 

That yes, it is possible to get the Tribunal to reconsider! But only in very rare and limited circumstances!! 

The background of the case was that the applicant, Ms Mora, and her partner operated a cleaning business in Australia through a family trust. An application for approval (apparently of the trust) as a standard business sponsor was initially approved by the Department.

However, an application for approval of the nomination of an occupation of Ms Mora as a “business development manager/sales and marketing manager” was refused by the Department on the basis that the nominated occupation was not considered to be “genuine”. 

On the same day that the nomination application was refused, the Department also refused Ms Mora’s 457 visa application, on the basis that she was not the subject of an approved nomination. 

Ms Mora then lodged applications for merits review first against the refusal of the application for approval of the nomination, and then, and also, against the refusal of the 457 visa. 

And what happened next was that the Tribunal decided that it did not have jurisdiction under section 338(2) of the Migration Act to hear the merits review application. 

In determining that it did not have jurisdiction, the Tribunal relied on the decision of the Federal Circuit Court in the case of Minister for Immigration and Border Protection v Lee (2014) FCCA 2881 (readers may recall that in Lee, the Court held that the Tribunal did not have jurisdiction to hear the application because the approval of the nomination had ceased due to the passage of time since the approval had been given). 

After the Tribunal had determined that it did not have jurisdiction, there was another decision concerning the circumstances when the AAT has jurisdiction to hear merit review applications against the refusal of 457 visa applications that expanded upon and clarified the Federal Circuit Court’s decision in Lee.  This was the Full Court’s decision in the case of Ahmad v Minister for Immigration and Border Protection (2015) FCAFC 182. 

In Ahmad, the Full Court held that the Tribunal does in fact have jurisdiction to hear an appeal against the refusal of a 457 visa application in the exact same circumstances that were present in Ms Mora’s case: namely, where an application for merits review of the refusal of a nomination application has also been made and is awaiting determination before the Tribunal. 

To summarise: what happened here was that after the Tribunal determined, on the basis of the Lee decision, that it did not have jurisdiction to hear Ms Mora’s application for merits review, the Ahmad decision was handed down by the Full Court.  And since the circumstances in Ms Mora’s case were substantively identical to those in Ahmad (an application for review of the refusal of the nomination application had been made), it was clear that the Tribunal had, in the first instance, incorrectly concluded that it did not have jurisdiction. 

So it was in these circumstances that Ms Mora approached the Tribunal and asked that it reconsider its earlier decision that it did not have jurisdiction.  

And while the Tribunal agreed, in the particular and narrow circumstances of this case that it would reconsider its determination that it did not have jurisdiction, at the same time the Tribunal stated very clearly that it would be extremely rare for it to reconsider a decision in future cases. 

So when will the Tribunal agree to reconsider? 

As outlined in Paragraph 20 of its decision in Mora, when: 

1. There is clear, recent and unambiguous judicial authority to support the conclusion that an earlier “no jurisdiction” decision of the Tribunal was clearly wrong;

2. The application to reopen has been filed promptly after a judicial decision is handed down which holds that the basis on which the Tribunal has determined that it does not have jurisdiction was legally incorrect;

3. The Tribunal has not yet considered, let alone made a decision, on the merits of the review;

4. The parties (meaning the Department) are in agreement that the Tribunal should agree to reconsider the “no jurisdiction” decision;

5. The Tribunal does not find that there would be any unfairness or detriment to sound administrative practice that might follow from accepting the shared position of the applicant and the Department that the proper course would be to reconsider the decision;

6. There don’t appear to be any discretionary reasons why a court would refuse to grant relief to the applicant on the basis of the error if the applicant had sought judicial review instead of approaching the Tribunal for reconsideration;

7. The outcome is consistent with the Tribunal’s objectives of providing a review that is fair, just, economical and quick and not inconsistent with promoting public trust in the Tribunal’s decision-making. 

In Mora, the Tribunal also outlined the circumstances when it will reject a request that it re-open a decision and re-consider the decision. They are as follows: 

1. When there is any doubt at all as to whether there has been jurisdictional error, and when it is not obvious that the Tribunal’s previous decision was wrong;

2. If the Tribunal has already made a decision on the merits;

3. If judicial review proceedings have already been commenced concerning the Tribunal’s decision. 

The Tribunal also indicated in Mora that it will rarely agree to re-open a case for re-consideration just because the Tribunal has applied an interpretation of the law to a particular set of facts that is later overruled. 

So, what is the lesson from Mora? 

Principally, it is that the remedy of reopening a decision will be very very unusual.  It will remain the case that in nearly all circumstances where the Tribunal makes a jurisdictional error, the appropriate course will be to lodge a judicial review application with the Federal Circuit Court.  

Only in those limited cases where the Tribunal determines it does not have jurisdiction, and a court then rules that the legal basis on which the Tribunal found that it did not have jurisdiction was incorrect, is it likely that an application to the Tribunal for reconsideration will succeed.

Email: This email address is being protected from spambots. You need JavaScript enabled to view it.