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Michael Arch

Michael Arch

Michael Ephraim-Arch has not set their biography yet

Posted by on in General

Will having a “checkered” immigration history prevent a person from becoming an Australian citizen?

Will living in Australia for more than 20 years as an unlawful non-citizen, working unlawfully, and not paying tax on earnings, cause a citizenship application to be refused?

What if the applicant ultimately does gain lawful status?

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Was the “regional processing arrangement” that was entered into by the Australian government with the government of Papua New Guinea within the lawful powers of the government? 

That question was raised in a case that was brought in the High Court by an Iranian asylum seeker that was decided late last week, Plaintiff S195-2016 v Minister for Immigration and Border Protection (2017) HCA 31 (17 August 2017). 

The background of this case was that the plaintiff entered the migration zone at Christmas Island on 24 July 2013 as an “unauthorised maritime arrival”, claiming to be a refugee. 

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Is a case that appears hopeless necessarily hopeless? 

We have seen in many cases over the last few years that the Department and the Minister (through exercise of personal powers not to revoke) have been engaged in a process of very routinely and broadly cancelling visas on character grounds, and that the bases on which such cancellation decisions can be challenged in Federal Court are really quite narrow. 

So what about the following situation, described in a decision of the Federal Court that was handed down last week, Coker v Minister for Immigration and Border Protection, (2017) FCA 929 (15 August 2017): 

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How many times have you heard or read about the following scenario, regarding a student visa application:

An applicant is granted a Subclass 573 visa on the basis of being enrolled to take an English Language Intensive Course for Overseas Students, and a Masters of Business Management.

However, after arriving in Australia, the applicant claims he is suffering from depression, due to living away from his parents and his home country for the first time, and feeling isolated and lonely. He does not complete the ELICOS course and does not commence the master’s degree course.  His enrolment in the master’s degree course is cancelled.

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It is very common for visa applicants who have had their applications refused by the Department, and who have also lost their applications for merits review before the Administrative Appeals Tribunal, to “appeal” (put most accurately, “to seek judicial review”) in the Federal Circuit Court, and to do so without the assistance of a lawyer.

In fact, when you read the decisions from the FCC on the Austlii Website, it is apparent that the majority of the applicants seeking judicial review are self-represented. 

One can only guess at the reasons why so many people choose to act for themselves before the Federal Circuit Court, but it is safe to assume that one of the main reasons is that applicants are concerned that they may not be able to afford the cost of getting legal assistance.

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