Australian Immigration Daily News

How can you figure out if the Tribunal has committed a jurisdictional error, and that your client has good prospects of success if you seek judicial review in the Federal Circuit Court? 

Read tea leaves? Consult a Ouija Board, a fortune teller or a crystal ball? Buy an “8” Ball? Seek guidance from Donald Trump’s debate advisers? OK, from Hillary’s advisers? Email Christopher Levingston? 

It ain’t always so easy to know!!! 

But a case that was handed down earlier this week by Judge Smith of the Federal Circuit Court does provide some useful guidance: Sarkar v Minister for Immigration & Anor (2016) FCCA 2435 (15 September 2016). 

In certain respects, this case was boring and straightforward (!!). It concerned an application for a further student visa.  In the course of its review the Department asked the applicant for certain documents concerning his financial resources. This was responded to by the applicant. However, integrity checks carried out by the “offshore post” established that some of the materials that had been provided were fraudulent.  The Department then determined that PIC 4020 was not satisfied and refused the application.  So the application was refused.  And then the Tribunal affirmed the refusal. 

Zzzzzzzzzzzzzzzzzzzzzzz? Time to stop reading? 

Not so fast! 

What happened here was that a letter was sent to the Tribunal by the applicant’s employer in Australia. 

The letter said that the applicant had been working as a barista for the employer, that he was a reliable and hard working person, and that “if we lose him from our business right now, it will impact our business tremendously”. 

The apparent purpose of this letter was to support a submission that PIC 4020 should be waived, on the basis of compelling circumstances affecting the interests of an Australian citizen. 

So what was the problem in the Court’s eyes? 

In the decision, the Tribunal did not include an analysis of the letter, and of whether the letter established that there were compelling and compassionate circumstances, or whether the letter provided a basis for waiving PIC 4020. 

And because there was no analysis of the letter, the Court concluded that the Tribunal had not considered the letter in connection with the possible grant of a waiver. 

And on that basis the Court further concluded that the Tribunal had not “completed its obligation to review the decision of the delegate”.  That it had constructively failed to exercise its jurisdiction.  That it had fallen into jurisdictional error. 

My kingdom for a horse! 

The moral of the story here? If certain evidence is put to the Tribunal that is relevant to the determination of the issues in the case, and the Tribunal’s decision doesn’t contain a discussion or analysis of why that evidence does not show that a criterion essential to the grant of a visa or met, or why the discretion to grant a waiver should not be exercised, then according to this decision you might very well be able to show that jurisdictional error has occurred. 

Voila! Maybe it’s easier than we think! 

And if all else fails, we can always…..email Christopher Levingston! 

(Warning: if you email Hillary, it might get deleted! Even if you mark it Top Secret!)

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