Update on Lee case: Subclass 457 review rights restored

A decision by Justice Street in Kandel v Minister for Immigration [2015] FCCA 2013 the Federal Circuit Court in Sydney last Friday has brought some resolution to the problems arising from the Lee case. The Lee case resulted in the Migration Review Tribunal (MRT) deciding it did not have jurisdiction to review a Subclass 457 visa application refusal if an approved nomination was not in force when the review application was lodged.

Justice Street’s decision is that the Administrative Appeals Tribunal (AAT) does have jurisdiction to consider an application for review of a Subclass 457 visa refusal if there is an application for a review or a nomination refusal that identifies the applicant.

Further analysis on this case will be available when it is published.

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Changes to filing and other fees in the Federal Court from 1 July 2015

As a result of amendments to the Federal Court and Federal Circuit Court Regulation 2012 made by the Federal Courts Legislation Amendment (Fees) Regulation 2015 some significant changes to filing and other fees in the Federal Court will take effect from 1 July 2015.


Almost all fees have increased by 10% but, other than for some bankruptcy fees, fee categories have been restructured to remove the higher fee tier for publicly listed companies and to reduce fees for public authorities from the corporations rate to that for "in any other case".
 
An additional exemption has been included so that no fee will in future be payable on filing of an application under section 23 of the International Arbitration Act 1974 to issue a subpoena requiring attendance before or production of documents to an arbitral tribunal or both. If an order for the issue of such a subpoena is made the normal fee for issue of that subpoena will still be payable. Otherwise no changes have been made to any of the existing exemptions.


The new filing fees will apply to all documents filed on or after 1 July 2015. The new setting-down, hearing and mediation fees will, however, only apply to hearings and mediations fixed on or after that date. Hearings and mediations which have already been or are fixed up to and including 30 June 2015 will pay the current rates for setting-down, hearing and mediation fees even if the hearing or mediation does not take place until on or after 1 July 2015.

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Federal Magistrates Court - Migration Act 1958, jurisdictional error

The Federal Circuit Court (Formerly Federal Magistrates Court) of Australia (the Court) can review some decisions made under the Migration Act 1958. These include decisions made by the Minister for Immigration and Citizenship (the Minister), the Refugee Review Tribunal and the Migration Review Tribunal.

The people responsible for making decisions under the Migration Act include the Minister and the Members of the Refugee Review Tribunal and the Migration Review Tribunal (the decision makers). These decision makers look at the merits of your application and whether you should or should not be granted a visa.

The Court may only review a decision in order to determine if a ‘jurisdictional error’ has been made. This means the Court determines if the decision has been made according to law. The Court is independent of the decision makers. The Court does not consider the merits of your application and whether you should or should not be granted a visa.

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