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BLO5607 Visa Compliance Cancellation And Review

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BLO5607 Visa Compliance Cancellation And Review

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Course Code: BLO5607
University: Victoria University

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Country: Australia

Question 
Read the decision of Malhi v Minister for Immigration & Anor [2017] FCCA 119 (2 February 2017) attached to this assignment.
In plain English, explain why and what constitutes the jurisdictional error determined by the Federal Circuit Court, to have been committed by the Tribunal.

Answer
Malhi v Minister for Immigration & Another
The Administrative Appeal Tribunal as held in Malhi v. Minister, a case on Immigration is that the complainant Amanpreet Singh Malhi shall not be granted Visa as per clause 801.221 of the Schedule 2 that is mentioned under the Migration Regulation Act, 1994. The clause states that the applicant to Visa must be the spouse of the sponsor and the Sponsor should be an Australia Citizen.
Whether Judicial Review in this case has been initiated in the proper authority.
The case is summarized from the decision that is discussed in Malhi v Minister of Immigration and Another, dated 14th October, 2013 as held by Migration Review Tribunal, now known as the Administrative Appeal Tribunal. The tribunal decided that the Minister empowered should not grant Visa to the applicant. Being dissatisfied with the judgment of the tribunal the applicant files an appeal before the Federal Circuit Court of Australia. The appellant argued that he was victimized due to the fraudulent activities of the migration agent. On 23rd March 2011 the appellant submitted his skilled visa application. The Visa application form contains details of the appellant with the TRA certificate regarding trade details. The minister of immigration has asked him to provide certain information as the application submitted by the agency S& S Migration contains false and misleading information and the TRA certificate has no record of his skill assessment. The appellant does not respond to the query. On 16th April 2012, the migration department refused to grant visa depended upon the skill of the applicant for the reason that he has provided false and deceptive information to the said department in connection to his visa application.   
A review application has been filed against the decision taken by the Migration Authority. Proceeding before tribunal has begun. He submitted a copy of his FCCA affidavit, where he has sworn that he had came to Australia in June 2009 as dependant of his wife. He alleged that the particulars provided by his migration agent are false and it is the first time he was aware of that fact.
The court has further observed that primarily the limitation period for filing an appeal is twenty eight days from the date of decision of the court regarding Minister For Immigration and Border Protection as per the rule included in Sub-section 2 of Section 29 of the Administrative Tribunal Act. In this case, the appellant had filed the appeal after 28 days and thus barred by limitation and therefore the tribunal has no jurisdiction to allow the case and hear proceeding in such case. 
Moreover, the AAT does have the power to entertain reviews of “primary decision”.  Section 306AJ of the Migration Act 1958 states about the timing of the conduct review by administrative tribunal. The section states that an application to AAT made for the review of mandatory decisions alongside with the prescribed time limit. In this case, the decision is a “primary decision” which is defined in subsection 4 of Section 476 states that primary decision means a private clause decision or purported privative clause decision. This means that the tribunal barred by statute to conduct such review. In the present case, the pronouncement taken by the Ministers delegate is a primary decision and AAT has no authority to conduct the review of the present case. This supported by Section 306AJ of the Migration Act 1958 wherein it says that the tribunal can only conduct review to the decisions, which are referral or mandatory.  
In the stage of evidence, the applicant provided oral evidence, which states that the migration agent whom the applicant has appointed for visa application has done fraud by putting incorrect and false details. However, the applicant has no evidence to prove such that the migration agent has provided the false information and the applicant had no such malafide intention to provide false statement.
From this angle the tribunal concluded and decided to dismiss the review application and stated that the person has married and entered into the relationship in a speedy way without thinking about the future. Moreover, the court says that their relationship was not genuine and long-lasting. The tribunal has no power to decide whether a person entered in to a relationship is genuine or continuing and the decision of the ministry of migration remains affirmed.
After the decision that decreed by the tribunal, the appellant went to the FCCA for second round of review and the highest court decided that the tribunal is into a jurisdictional error.
Now the question arise that why and what made the FCCI to determine that the tribunal has no jurisdiction in the particular case.
However, the Tribunal took the decision and rejected the plea by saying that the person has married and entered into the spouse ship in a speedy way without thinking about the future. Moreover, the court says that their relationship was not genuine and continuing. The tribunal has no power to decide whether a person entered in to a relationship is genuine or continuing or both the spouse contribute equal financial support to the family. It is not required that the spouse will think about children from the beginning of their relationship. The tribunal has considered the issue of genuine relationship as the only important issue of the case. The tribunal was more concerned about the longevity of the relationship, but the Migration Act does not say that a spouse should have to think about the financial stability or longevity of the relationship.
Thus for the above referred reasons the FCCI determined that the tribunal has committed jurisdictional error by focusing on the issue of their marital relationship or whether the relationship is genuine and continuing which was not required or is not the concern of the migration Act.
Reference:
“Recognition of foreign administrative acts: Report from Australia to the XIXth International Congress of Comparative Law.” (2014).
Griffiths, Justice John. “Recognition of Foreign Administrative Acts in Australia.” Recognition of Foreign Administrative Acts. Springer International Publishing, 2016. 51-89.
Higginbottom, Gina M., et al. “An ethnographic investigation of the maternity healthcare experience of immigrants in rural and urban Alberta, Canada.” BMC pregnancy and childbirth 16.1 (2016): 20.
Jain, Srimandir Nath. Administrative Tribunals in India: Existing and Proposed. Indian Law Institute, New Delhi, 2015.
Lindgren, April. “Toronto-area Ethnic Newspapers and Canada’s 2011 Federal Election: An Investigation of Content, Focus and Partisanship.” Canadian Journal of Political Science 47.04 (2014): 667-696.
Wright, Robertson. “The work of the NSW Civil and Administrative Tribunal.” Judicial Officers Bulletin 26.10 (2014): 87.

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