Recent Australian Common Law: Immigration Legal Cases

Sapkota v Minister for Immigration and Border Protection [2014] FCAFC 160

Relying on Schedule 3 to apply for a visa within 28 days of your last visa expiring is an an exception. This exception to allow you to apply for a visa without holding a visa is only available once. Should a visa applicant not meet Schedule 3 criteria at the time of making an application, the visa will be refused.

 Minister  for Immigration v  Lee  & Ors [2014] FCCA 2881 (10 December 2014)

Applicants who have applied for the Migration Review Tribunal on a nomination refusal, do not have jurisdiction at the MRT to have the nomination or subclass 457 visa heard. Applicants only have jurisdiction at the MRT if:

1. the business sponsorship has been refused; OR

2. their subclass 457 has been refused

Mohammed v Minister for Immigration and Border Protection [2015] FCA 184 (6 March 2015)

An application is not a valid application until the Department receives the application. In this case, the applicant could not apply on line due to a “system error” and made a paper application the day after his visa expired. The Federal Court held that the delay means that a valid application is the only application that is acceptable when the application fee is paid.

1410214 [2015] MRTA 181 (4 February 2015)

Pregnancy is not a compelling and compassionate circumstance to waive Schedule 3. The compelling and compassionate circumstance must have existed prior to making the application, not developed after the lodgement of the visa application.