By Amina Youssef
We continue to see the effect of Parish Patience Immigration Services’ (PPIS) successful case decided in the Federal Court on 16 December 2015. In Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182; (2015) 237 FCR 365, the full court held that the Administrative Appeals Tribunal (AAT) had committed a jurisdictional error by failing to review a decision of the Department of Immigration and Border Protection in relation to a refusal of Temporary Business Entry Visas.
On 15 August 2016, in Mora (Migration) [2016] AATA 4198, AAT President Duncan Kerr, Deputy President Jan Redfern and Senior Member Miriam Holmes decided to reopen a case that was found to have been affected by a no jurisdiction finding by the Tribunal almost a year ago. The AAT concluded that it had a legal duty to reconsider the matter, having obviously fell into jurisdictional error in its past finding of no jurisdiction, and that it was in the public interest to do so.
This may have implications for those affected by Schedule 3 after the Waensila decision. As we saw post-Waensila, the Department was forced to agree to consent orders to have Judicial Review matters remitted to the AAT as a result of that decision. For those who have applied for an Onshore Partner Visa (sc820/801) and been refused on Schedule 3 grounds at the Tribunal, it may be worthwhile to consider writing to the Tribunal to have the matter heard on the basis that the Tribunal had committed an error of law when it failed to apply the Schedule 3 criteria correctly.