The Full Federal Court of Australia released today, 16 December 2015, the decision on the consolidated appealed cases of following:
- Rana Mukhtar Ahmad v Minister for Immigration and Border Protection & Anor (NSD708/2015)
- Manisha Sharma & Ors v Minister for Immigration and Border Protection & Anor (NSD836/2015)
- Khaled Bahjat El Masri v Minister for Immigration and Border Protection & Anor (NSD839/2015)
In substance, the Court reversed the decision of the Federal Circuit Court in relation to the statutory interpretation of section 338 (2) (d) (ii) of the Act.
The sole question for the Tribunal in deciding upon its jurisdiction under s 338(2) (d)(ii) of the Act is whether, at the time of applications for review of the refusal of the 457 visas there was pending before the Tribunal applications for review of the refusal of the nominations in relation to the Appellants. In that event, the Tribunal had jurisdiction, regardless of the ultimate fate of the review of the refusal of the nominations.
Each of the Appellant’s applications for review of the refusal of their 457 visa was remitted to the Administrative Appeals Tribunal (AAT) for consideration according to law. The Appellants were awarded the costs of the appeal and at trial.
The significance of this decision is that many 457 visa applicants who had their review applications determined as invalid (under Lee) in the last 12 months or so now can continue with their review rights with the AAT.
Parish Patience Legal and Migration Services located at Level 3, 123 Clarence Street Sydney NSW 2000, (www.parishlaw.com.au) acted for all three applicants. The litigation team included Mr. Howard Murdoch, Practice Director, Mr. Nelchor Varquez, Solicitor and Mr. Oliver Jones, Barrister, of New Chambers.
Details of the full decision will be provided as soon as they become available.
For enquiries with regard to cases similar to the above, please contact Mr. Howard Murdoch on 02 8297 6700 or [email protected]