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Michael Arch

Michael Arch

Michael Ephraim-Arch has not set their biography yet

Posted by on in General

Would you like to read about a citizenship case that had a positive conclusion for the applicant?

How about one where the applicant was able to rely on an “obscure” exception to the “general residence” requirement of section 22(1) of the Australian Citizenship Act  in order to persuade the Tribunal to set aside a decision by the Department to refuse his citizenship application?

How about a citizenship case with a compassionate outcome?

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What evidence is required in order to get a waiver of Condition 8503?

As readers will be aware, Condition 8503 is commonly imposed on Visitor Visas (Subclass 600).

The Condition provides that: “The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the subject remains in Australia”.

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What evidence is needed to win a Schedule 3” case?

Exactly what kinds of circumstances might be considered to provide “compelling” reasons for the Schedule 3 criteria not to be applied, so that an applicant for a Partner visa who does not hold a substantive visa may remain on shore in Australia during the all-too-lengthy period when the application is being assessed?

Unfortunately, there is no definition in the Migration Act or Migration Regulations of the meaning of “compelling”, no objective standard, and no “magic formula” or “recipe of facts” that will drive a conclusion that the circumstances in any case are so persuasive that the power to waive Schedule 3 must be exercised.

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Beware, beware, beware, be aware!

So-called “time of application” criteria can be a genuine trap for the unwary, and can cause a visa application to blow up, with dire consequences for the applicants.

A case in point is a decision of the Administrative Appeals Tribunal that was recently brought to the writer’s attention by our colleague,  Dr Sirous Ahmadi (as of this date, not reported on Austlii).

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Followers of this Website will recall that we have reviewed a number of cases where New Zealand citizens who have lived in Australia since early childhood have had their visas cancelled on character grounds. 

In the majority of those cases, challenges that have been brought against the visa cancellations have not been successful. 

This is what makes a recent decision of the Administrative Appeals Tribunal, in the case of Engi and Minister for Immigration and Border Protection (Migration) (2017) AATA (12 September 2017) unusual and remarkable. 

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