Australian Immigration Law Jurisdictional

Question: Discuss about the Australian Immigration Lawfor Jurisdictional. Answer: The term jurisdictional error is a concept that came into existence with the advent of administrative law. The concept is particularly used in United Kingdom and Australia. Jurisdiction means authority to take decisions or decide and this error takes place when the given authority to any given Court is misunderstood or misconceived[1]. However, the decisions that amount to jurisdictional error can be quashed with the help of judicial review. Some examples of judicial review include asking wrong questions to the applicant, ignoring important material to the case or relying on immaterial material thereby breaching the concept of natural justice. In the given case, the decision taken by the Tribunal in the case of Malhi v Minister for Immigration Anor [2017] FCCA 119 (2 February 2017) was a prime example of jurisdictional error in which the applicant successfully appealed against the decision of the Tribunal in the Federal Court. In the given case, the applicant named Mr. Amanpreet Singh wanted to marry a women staying and residing at Australia. The applicant was a male and an Indian. However, his sponsor was a woman and the woman was an Australian. During the time when the judicial decision was to be taken, the age of the applicant was about 26 years and of the sponsor was about 52 years[2]. In the given case, the following issues were raised: The Tribunal considered their relationship hasty and in the opinion of the Tribunal, the couple has not thought over about the potential implications of their life in future. Secondly, the Tribunal also questioned them about their been able to have biological children together or not and the consequences that their relationship might have on other people[3]. In the opinion of the Tribunal, the above-mentioned issues mattered a lot as far as issuing and granting of visas were concerned. The Tribunal had raised certain questions and was doubtful about the genuineness of their relationship as to whether they were sustaining a genuine relationship or not. In the view of Tribunal, the applicant, as he was not sure about gaining permanent residence visa in Australia, had planned to enter into a marriage with the sponsor who was of 52 years of age. The sponsor, in the opinion of the Tribunal, did not think of the consequences of their relationship in a meaningful manner. Moreover, the Tribunal was also worried about the fact that the sponsor was embarking upon their new relationship knowing of the existing complexities. The Tribunal seemed to be extremely worried that the sponsor and the applicant did not have a meaningful discussion on this previously[4]. Based on the above contentions, the Tribunal had rejected the applicant of visa of Malhi. On 20 March 2015, the applicant applied for judicial review over the decision that was passed by the Tribunal. The applicant emerged successful in his seeking judicial review and the Federal Court declared the decision of the Tribunal as a jurisdictional error based on the following points: The Tribunal failed to apply the appropriate meaning to the words continuing and genuine. Secondly, the Tribunal failed to the give sufficient amount of time to the applicant to present his arguments related to the given case that made him apply for judicial review in the given case[5]. Additionally, the Court had also observed that the examination of whether a given relationship is continuing or genuine or not is to be examined at the time when the Tribunal was making his decision instead of relying on future predictions. Therefore, in the opinion of the Court parties have the liberty to enter into the relationship of marriage for the purpose of only obtaining visa and the reasons may not be necessarily genuine. The couple have the liberty of entering into a relationship with one another which in the opinion of the third party may seem be ill conceived or precipitous. Nevertheless, the only thing that should have mattered to the Tribunal to base his judgment was that the relationship is continuing and genuine and none of these terms have been described in the legislation[6]. The Court while interpreting the meaning of the word genuine held that the relationship should not, at the time of making the decision, be false or sham in nature. Furthermore, the Court had also added to the meaning of the word continuing stating that the only thing that the Tribunal should have taken into consideration at the time of making the decision is that the couple will be able to endure a foreseeable future. There is no need for the couple to prove that their relationship will last for lifetime. Thus, it may be held that the migration law does not need the applicant to satisfy that they will be together until death do them separate. In the second issue wherein the Tribunal had raised concerns whether the parties have had a serious discussion on this in the beginning of the relationship itself is doubtful. Thus, the parties to the application should have had a seriously considered issues related to conceiving children as well. In the opinion of the Federal Court the Tribunal had made a jurisdictional error in taking such matter into serious consideration at the time of considering and approving visa for the same[7]. Based on the above discussion, it may be held that parties who wish to apply for visa and wish to get married for the same need not worry about their approval of application, as the Tribunal would only be judging their application on the ground that their relationship is continuing at the time of application. The Tribunal need not take into consideration the continuity of a relationship on the grounds of romanticism. Moreover, based on the decision of the Federal Court it may also be concluded that parties who wish to get their visa permanent can marry another only for the purpose of getting their visa permanent. This decision of the Federal Court paved way for many application of permanent visa to be approved. References: Aleinikoff, T. Alexander, and Douglas Klusmeyer, eds.From migrants to citizens: Membership in a changing world. Brookings Institution Press, 2013. Clayton, Gina.Textbook on immigration and asylum law. Oxford University Press, 2016. Hollifield, James, Philip Martin, and Pia Orrenius.Controlling immigration: A global perspective. Stanford University Press, 2014. Martinez, Omar, et al. "Evaluating the impact of immigration policies on health status among undocumented immigrants: a systematic review."Journal of immigrant and minority health17.3 (2015): 947-970. Menjvar, Cecilia. "Immigration law beyond borders: Externalizing and internalizing border controls in an era of securitization."Annual Review of Law and Social Science10 (2014): 353-369. Newman, Louise, Nicholas Proctor, and Michael Dudley. "Seeking asylum in Australia: immigration detention, human rights and mental health care."Australasian Psychiatry21.4 (2013): 315-320.