Australian Immigration Daily News

I have just learned from colleagues about an excellent result they achieved in the Federal Court.

Their client was granted a visa - a SHEV -  by the Administrative Appeals Tribunal (!!).

Evidently he was continuing to be held in detention notwithstanding the visa grant decision of the AAT.

Proceedings were brought in the Federal Court and were heard yesterday by the Duty Judge, Justice Wigney.

Apparently, the Department elected not to recognise the visa grant; again apparently the Department took the view that any visa granted by the AAT was invalid on the basis that it is beyond the power of the AAT to issue a visa (practice in the Tribunal is routinely to remit refusal decisions back to the Department with directions that certain visa criteria are satisfied).

I have not previously seen an AAT decision which called for actual visa grant (has anyone else - if so please tell your story in the comments).

It hardly needs to be said that the Department has no legal authority to hold someone in detention when that person holds a visa, as the visa holder is a lawful non-citizen.

In my view, if the Department considers that a visa has been granted by the AAT without lawful authority, its remedy is to go to court to seek a declaration that the visa is not valid, and NOT to make a unilateral decision that the visa was not properly granted and thus to hold the person in detention.

Again, of course, if anyone has a client who has been granted a visa but who remains or has been placed in detention, then urgent legal advice needs to be sought.

As Justice Wigney's decision was made from the bench on an "ex tempore" basis it appears unlikely that it will be reported on Austlii.