Samah v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

In the Federal Circuit Court of Australia, Mr. Ahmad Abu Samah, a citizen of Singapore, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) to affirm the cancellation of his subclass 457 visa. The visa had been cancelled by the Department of Home Affairs on the grounds that Mr. Samah had breached Condition 8107(3)(b) of the Migration Regulations 1994, which requires a visa holder not to cease employment for more than 60 consecutive days. Mr. Samah had responded to the notice of intention to cancel by detailing his qualifications and desire for permanent residency, but the delegate proceeded with the cancellation. The AAT subsequently affirmed this decision.

The primary legal issue before the Court was whether the AAT had committed jurisdictional error in its review of the visa cancellation decision. The applicant raised several grounds of review, including claims that he did not receive a crucial invitation to comment from the Tribunal, that legislative changes made it impossible for him to secure new sponsorship, and that the Tribunal failed to properly consider his circumstances and new evidence. The Court was tasked with determining if the AAT's decision-making process contained errors that went to the jurisdiction of the Tribunal, rather than reviewing the merits of the cancellation itself.

Justice Kendall found that while the applicant's grounds of review concerning the non-receipt of the invitation to comment and the impact of legislative changes did not establish jurisdictional error, the Minister's submissions highlighted a significant failing by the Tribunal. The Court agreed that the Tribunal had failed to conduct a proper review of the delegate's decision, adopting a "skeletal" and arguably factually incorrect approach. Specifically, the Tribunal incorrectly stated that no new material had been placed before it, when in fact, certain correspondence and submissions were indeed new. More critically, the Tribunal's conclusion that it "does not see circumstances in which its discretion should be exercised" was based on its flawed assessment of the evidence and an insufficient engagement with the statutory duty to review the delegate's decision. This failure to actively consider the matter constituted jurisdictional error.

Despite finding jurisdictional error, the Court ultimately dismissed the application on the grounds of futility. The Minister argued that remitting the matter to the Tribunal would be futile because the applicant's visa had expired on 21 August 2019, and there was no statutory power to extend its effect in these circumstances. The Court agreed with this submission, noting that even if the Tribunal were to find in the applicant's favour, the expired visa would render any remittal of no practical utility. Therefore, the Court ordered that the application be dismissed.