Top questions asked in relation to COVID19- Coronavirus and temporary work visas (Subclass 482 and 457 visa holders)
1. My employer has told me that they can’t afford to keep me on. What…
If you had a visa refused or cancelled and you reviewed it at the tribunal, AAT/MRT/RRT, you can appeal it to the Federal Circuit Court (or the Federal Court) depending on your circumstances if the member made a legal error in his or her decision.
A legal error or a jurisdictional error is a legal term used to simply explain that the decision maker in your case at the tribunal did not follow the law when making his or her decision. The court can then hear your case and determine whether or not the Member made a legal decision.
The court won’t look into the merits of your case or whether you deserve to get a visa or not. They will only focus on the legal principles and how the member made their decision.
If you are successful in court, your case goes back to the tribunal for a new member to hear your case again in the hope that this time, the decision is made under the law.
Can I represent yourself in court?
The answer is YES. You do not have to have a lawyer with you during these proceedings and sometimes the court can be more patient and helpful if you do not have a lawyer. Nonetheless, it is a very good idea to have an experienced immigration lawyer (solicitor and sometimes a barrister too) on your side for the following reasons:
You will be unfamiliar with what to write your court application as well as the affidavit that is required to lodge a valid application. A lawyer can help you identify the correct legal error and write those documents on your behalf. In fact, a lawyer has to sign that your case has reasonable prospects of success or otherwise they will be personally liable for the costs of the case.
If your case is so weak or your documents are not well written, the court can reject your case very early on. If your case is strong, most likely you will get a hearing date in the future (in 1-2 years) and you may be allowed to stay in the country during these proceedings.
The government (being the relevant minister and the tribunal) will have their own legal team fighting against you. Therefore, it is a good idea to have lawyers on your side fighting on your behalf too so that you are not in a weaker position.
Legal terminology and jargon can be hard to understand, and the procedures of the court can be very difficult. There will be submissions and documents you will have to provide along the way and get from the other side. If you do not understand what to do this can be very challenging and jeopardising for your case.
The court will schedule various hearings where you have to present your case to a judge or explain when you are free next. You may not understand or be comfortable what to do. A lot of people find those dates very daunting and scary.
You will have to attend all important court dates if you are a self-represented litigant. If you have a lawyer, they can go on your behalf and take care of the whole case for you while you stay at home or go to work those days.
The court environment is very different from a tribunal. In your tribunal case, you were in the room alone with the decision maker, the member and perhaps your representative if you had one. In a court setting the judge will not ask you questions or help your case as much as it is an adversarial system which means you present your case (or your lawyers on your behalf). The minister will also have their lawyers present and they can object to what you say or present if they are not compliant with the court rules.
The court is very formal and has many rules you have to oblige with or you can cause yourself embarrassment.
You have to refer to the correct law and recent court cases in support of your case. Only a lawyer and sometimes a barrister too will be the right person to help.
Court proceedings, called litigation cost a lot of money and if you are not successful you will have to pay the other party’s legal cost which can be thousands of dollars. If you win the case, the other party will pay some of your legal costs too. Because of that hiring an experienced lawyer can be a smart way that will end up saving you money rather than costing you extra.
Written by Marial Lewis.