188Determination of appeal in relation to residence class visa

1. In determining an appeal under section 187, the Tribunal may—

2. confirm the decision appealed against as having been correct in terms of the residence instructions applicable at the time the application for the visa was made by the appellant; or
3. reverse the decision as having been incorrect in terms of the residence instructions applicable at the time the application for the visa was made by the appellant; or
4. note the correctness of the original decision in terms of the residence instructions applicable at the time the visa application was made on the basis of the information provided to the Minister or the immigration officer before the time of the decision, but reverse that decision on the basis of any information properly made available to the Tribunal that reveals that the grant of the visa would have been correct in terms of the applicable residence instructions; or
5. note the correctness of the original decision in terms of the residence instructions applicable at the time the visa application was made on the basis of the information provided to the Minister or the immigration officer before the time of the decision, but determine the appeal by cancelling the decision and referring the matter back to the Minister, if he or she made the decision, or the chief executive, in any other case, for consideration under those residence instructions as if a new visa application had been made that included any additional information properly provided to the Tribunal; or
6. determine the appeal by cancelling the decision and referring the application back to the Minister, if he or she made the decision, or the chief executive, in any other case, for correct assessment in terms of the applicable residence instructions, where the Tribunal—
   1. considers that the decision appealed against was made on the basis of an incorrect assessment in terms of the residence instructions applicable at the time the application was made; but
   2. is not satisfied that the appellant would, but for that incorrect assessment, have been entitled in terms of those instructions to the visa or entry permission; or
7. confirm the decision as having been correct in terms of the residence instructions applicable at the time the visa application was made, but recommend that the special circumstances of the applicant are such as to warrant consideration by the Minister as an exception to those instructions.

8. Where the Tribunal determines to reverse a decision to refuse a visa under subsection (1)(b) or (c), the Tribunal must—

9. consider whether it is appropriate that conditions should be imposed in accordance with section 50 when a resident visa is granted to the appellant; and
10. if it considers that imposing conditions is appropriate, direct the Minister to impose under that section the conditions specified in its decision (which may be specified with the degree of generality or particularity that the Tribunal thinks fit); and
11. notify the appellant in writing of any conditions imposed.

12. Where the Tribunal refers an application back to the Minister or the chief executive under subsection (1)(e), the Tribunal may give him or her the directions it thinks fit as to how a correct assessment of the application should be carried out.

13. The Tribunal must, as soon as practicable, notify the appellant in writing of its decision on the appeal and the reasons for that decision.

14. Subject to section 245, the decision of the Tribunal on the appeal is final, and, except where a court otherwise directs, the Tribunal has no jurisdiction to reconsider the appeal after the appellant has been notified of the decision.

Compare

• s 18D