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Michael Arch

Michael Arch

Michael Ephraim-Arch has not set their biography yet

Posted by on in General

OK readers, here’s the quiz of the month! It may be the quiz of the year if I can’t find an excuse to have another quiz!

And no, the quiz is not: “What insane tweet came out of the White House today?” That would be way too easy!

No, the quiz is a conundrum that made it all the way up to the High Court of Australia:

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Suppose an applicant for a Protection visa does not respond to an invitation to appear at a hearing before the Administrative Appeals Tribunal.

Suppose further that the applicant does not in fact appear at the Tribunal on the date that has been fixed for the hearing, and does not contact the Tribunal to explain her/his absence.

In that circumstance, can the Tribunal lawfully proceed to make a decision on the review without taking any further action to allow or enable the applicant to appear?

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Posted by on in General

What types of circumstances will be considered “compelling reasons” for not applying the criteria of Schedule 3, and thereby enabling an applicant for a Partner visa to remain onshore while the application is being processed?

This question is of more than passing interest, as of course it is not at all uncommon for a person who no longer holds a substantive visa to apply for a Partner visa more than 28 days after the prior substantive visa ceased.  In fact, it is a common occurrence that Partner visa applications will be made by applicants many years after their visas have expired, isn’t it?

So a case that was recently decided by the Federal Circuit Court, Prempree v Minister for Immigration & Anor (2017) FCCA (17 February 2017) provides some useful guidance to the question, and identifies some circumstances that may not amount to “compelling reasons” for the grant of a “waiver” of Schedule 3 criteria.

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How many bites of the apple can you get?

Or, in terms of migration law, how many opportunities can you get to lodge a student visa application on-shore in Australia if you have allowed your previous student visa to expire?

And what if there are compassionate circumstances that prevented you from applying for a new student visa before the one you already hold has ceased? If you can show compassionate circumstances, can you get more bites at the apple?

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Today’s article is essential  reading for anyone who acts, either as a migration agent or a lawyer, for a person who has had her/his visa cancelled on character grounds.

As we have seen, the Minister has been very actively exercising the “personal” powers vested in him under the Migration Act to cancel visas on character grounds, or to refuse to revoke the cancellation of visas on character grounds.

And as we have also seen, it is extremely difficult to challenge a cancellation decision made on character grounds in Federal Court.  There is no “merits review” of cancellation decisions made personally by the Minister – merits review is only available when a cancellation decision is made by a delegate of the Minister, and is only available in the AAT.

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