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Breaking Australian immigration news brought to you by Migration Alliance and associated bloggers. Please email help@migrationalliance.com.au

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Michael Arch

Michael Arch

Michael Ephraim-Arch has not set their biography yet

Posted by on in General

Are Australia’s migration laws too rigid and inflexible?

Are they applied in a way that is too rigid and inflexible?

Do they leave too little room for compassion, or for unforeseen circumstances truly beyond an applicant’s control?

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Posted by on in General

Does it seem to you that the Department is running a small “cottage industry” involving cancelling visas on character grounds?

If you have a look on Austlii, you can certainly get that impression!

Cases before the Tribunal challenging cancellations by delegates of the Minister. Judicial review applications in the Federal Court against decisions made personally by the Minister to cancel, or to refuse to revoke cancellation decisions made by delegates. Appeals to the Full Court from decisions of the Federal Court dismissing judicial review applications against cancellation decisions.

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What is the scope of the Full Court’s decision in the Waensila case?

Remember? Waensila  was the case where the Full Court overturned the Federal Court’s previous decision in the case of Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs that held that the only matters which can be taken into consideration when the Department/Tribunal are deciding whether to “waive” Schedule 3  criteria are matters that were in existence at or before the time of the application.  

In Waensila,  the Full Court held that regulation 820.211(2)(d) (ii), which permits the “waiver” of Schedule 3 where there are compelling reasons for not applying the Schedule 3  criteria, is not itself a “time of application” criterion. Accordingly, the Full Court decided in Waensila that when it considers whether to exercise the discretion to waive Schedule 3,  the Tribunal is not limited only to circumstances in existence at the time of the visa application.  Rather, under Waensila the Tribunal is at liberty to consider any matter that is in existence at the time that the decision whether to waive Schedule 3  is made.

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Another day, another decision that illustrates the obstacles to getting a “waiver” of Schedule 3 criteria!

The decision, Awad v Minister for Immigration & Anor (2017) FCCA 452, was handed down by Judge Driver on 10 May 2017.

This was the story: the applicant was a Lebanese national who originally arrived in Australia in February 2010 on a student visa. That visa ceased on 15 March 20102. He then applied for a further student visa, with that application also being made on 15 March 2012, but that second student visa application was refused. He then applied for a partner visa in July 2013, but in December 2014, the Department deemed that that application was “invalid” (why it took the Department approximately a year and a half to figure out that this application was “invalid” is not explained in the Court’s decision, but “whatever”.  Finally, the applicant re-applied for a partner visa in December 2014. It was that application which was the subject of the proceedings before the Federal Circuit Court.

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On 5 May 2017, the Assistant Minister for Immigration and Border Protection announced the introduction of a new “temporary sponsored parent visa”.

The announcement follows a commitment made by the Turnbull Government during last year’s election campaign to introduce this new parent visa.

The availability of this parent visa will be dependent on the passage of the Migration Amendment (Family Violence and Other Measures) Bill 2016 through the Parliament.  That Bill is currently before the Senate.  If the Bill is passed in Parliament’s Winter Sittings, it is expected that the new visa will be available in late 2017.

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