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Michael Arch

Michael Arch

Michael Ephraim-Arch has not set their biography yet

Posted by on in General

How can you tell whether your client has been denied a fair hearing before the Administrative Appeals Tribunal?

For example, suppose, on the day before the hearing, the Minister’s lawyers “dump” a large volume of documents on you?

Or suppose that your clients is being questioned by the Tribunal, or cross-examined by a lawyer for the Minister. If your client is not advised by the Tribunal of her/his right to decline to answer because of the privilege  against self-incrimination, does that mean that your client has been denied a proper hearing, that jurisdictional error has occurred, and that the case needs to be sent back to the Tribunal for re-determination?

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What is the appropriate relationship between the Department of Immigration and the criminal justice system?

Should the Department be able to effectively “override” a decision made by a magistrate to grant a criminal defendant bail by refusing a criminal justice stay visa, with the consequence that a non-citizen will be held in immigration detention pending determination of her or his criminal case?

What if the person is ultimately determined to be innocent of the charge?  Won’t he or she have been held in immigration detention improperly?

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How broad are the Minister's powers to cancel a visa under section 501(3) of the Migration Act?

And how difficult is it to challenge a decision of the Minister? Even where the visa holder has not actually been convicted of any criminal offences, and the cancellation is based on a finding that the visa holder has had a past association with a group or organisation that has been involved in criminal activity? Even where that association was apparently many years in the past?

The unsurprising answer to all of these questions, as illustrated by a decision of the Full Court of the Federal Court that was handed down in February, Taulahi v Minister for Immigration and Border Protection  (2018) FCAFC 22 (19 February 2018) , is that it is "very" or "extremely" hard to challenge a visa cancellation on character grounds, even in the described above.

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Is there any way to salvage a client’s situation if a third party submits a bogus document or information that is false and misleading in a material particular to the Department, and Public Interest Criterion 4020 is engaged, leading to the refusal of a visa application? 

Or is PIC 4020 an insurmountable barrier, a complete “brick wall” that there is no way to get around? 

In the wake of the Full Court’s decision last week in my own case, Singh v Minister for Immigration and Border Protection, it might seem that PIC 4020 really is a brick wall. 

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Is it hard to persuade the Department and the Tribunal that the Schedule 3 criteria should be “waived” so that an applicant can apply for a Subclass 820 Partner visa while onshore in Australia, and obtain a Bridging Visa A to remain in Australia with her/his spouse or partner while the application is being processed?

And is it hard to persuade the Federal Courts that the Tribunal has fallen into jurisdictional error when it has determined that “compelling reasons” do not exist for not applying the Schedule 3  criteria?

The answers to these questions are “yes!” and “YES!!!”.

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