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Michael Arch

Michael Arch

Michael Ephraim-Arch has not set their biography yet

Posted by on in General

Who is a “dependent child” within the meaning of the Migration Regulations?

This might seem to be a somewhat “obscure” or “arcane” question.

But it is an important one for parents who are seeking to get a “child” visa (Subclass 802) for an “adult child”- one who has turned 18.

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It really is a “time-honoured” tradition for people who are “new migrants” to a Western country to support themselves by driving taxicabs. 

It is equally time-honoured for students to work their way through school by driving cabs, or doing other demanding, socially important jobs.

But is there a risk to one’s visa status from “working too much” or not keeping accurate records of the hours worked?

A recent decision of the Federal Circuit Court, Aziz v Minister for Immigration & Anor (2018) FCCA 952 illustrates that there are risks.  And it does show how important it can be to keep good records.

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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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