Australian Immigration Daily News

What is the consequence if the Tribunal makes a jurisdictional error?

Will that necessarily mean that in each and every case where jurisdictional error has occurred, the case must automatically be remitted back to the Administrative Appeals Tribunal for a full re-hearing?

Suppose though that, even if there has been a jurisdictional error, there is an issue in the case, such that the criteria for the grant of the visa cannot possibly be satisfied.

Then what?

These questions were addressed by the Full Court of the Federal Court in a case that was decided late last week, Minister for Immigration and Border Protection v Hossain (2017) FCAFC 82 (25 May 2017).

The background of this case was that the applicant had originally come to Australia in 2003, as the holder of a student visa.  That visa expired in 2005. During a 5-year period, from 2008 – 2013, the applicant’s status in Australia was that of being an unlawful non-citizen.  Then, in 2015, the applicant applied for a Partner visa.

There was obviously a Schedule 3 issue affecting the Partner visa application.  That issue prompted a delegate of the Minister to refuse the application in the first instance, and the Tribunal to affirm the refusal after an application for merits review had been made.

When analyzing the Schedule 3 issue, the Tribunal evidently made a Waensila-type error, by limiting its consideration of matters that could justify the “waiver” of Schedule 3 criteria to issues which had been in existence as at the time that the Partner application was made.

However, 2 of the judges of the Full Court who heard the Minister’s appeal in the Hossain case (Justices Flick and Farrell) did not consider that this Waensila issue was reason enough, in the particular circumstances of the case, to warrant returning the case to the Tribunal.

Why not?

The reason was that there was another issue in the case that provided sufficient grounds by itself to warrant a decision by the Tribunal to affirm the refusal of the visa.  Or, to put it another way, the state of the evidence before the Tribunal was that the application did not satisfy the criteria for grant, notwithstanding the Waensila problem.

What was that issue?

It was that the applicant did not satisfy Public Interest Criterion 4004. And under clause 820.223(1) of the Migration Regulations, satisfaction of PIC 4004 was a criterion for the grant of the Partner visa. PIC 4004 provides that an applicant must not have outstanding debts to the Commonwealth, or must have made adequate arrangements to pay the debts.

What had happened was that the applicant in Hossain had incurred debts to the Commonwealth in connection with a previous application for judicial review.  And at the time of the Tribunal hearing relating to his more recent Partner visa application, he had still not paid those debts.  So he did not satisfy PIC 4004.

The consequence was that because he did not satisfy the criteria for the grant of the Partner visa as at the date of the Tribunal’s decision, Justices Flick and Farrell concluded that it was beyond the Tribunal’s authority to set aside the Department’s decision to refuse the visa.

So the moral of this case is that “jurisdictional error” does not necessarily rescue all. 

If it is the case that the applicant cannot satisfy the substantive criteria for the grant of the visa, then the jurisdictional error by the Tribunal, be it a Waensila error or other species of jurisdictional error, may not be enough to get the Tribunal overturned.

An interesting aspect of this case is that by the time that the case reached the Federal Circuit Court, the applicant had paid the outstanding debt to the Commonwealth.  So, at that point, PIC 4004 no longer presented an insurmountable obstacle to the grant of the Partner visa. 

So it was the view of Justice Mortimer (who was in the minority of the Full Court) that there would, in the specific circumstances, be utility in granting relief to the applicant and setting aside the Tribunal decision.

What will happen the next time a scenario like this comes before the courts?

Stay tuned!!!!!!!!!