Australian Immigration Daily News

In yesterday’s article, concerning the decision of the Federal Court in Ogama v Minister for Immigration and Border Protection, I noted that it surely appears that the Department has an ongoing “cottage industry” involving the cancellation of visas on character grounds.

Well, when you read the case reports from the Federal Courts on Austlii, it looks like there is more than a “cottage industry”! The visa cancellations on character grounds are being churned out by the Department at a rapid rate, it seems at times as quickly as Apple is churning out iPhones!

And, as the recent case of Burgess  v Minister for Immigration and Border Protection (2018)FCA 69 (12 February 2018)  illustrates, it seems that a particular target of the visa cancellation “compliance programme” is visa holders who have had involvement with “outlaw motorcycle gangs”.

There are  some cases that sure have “wacky facts”, and also have unexpected outcomes!

Here’s a case in point:  the decision of Justice Logan in Ogawa v Minister for Immigration and Border Protection (2018) FCA 62.

Let’s start here: how would you rate the chances of a person avoiding visa refusal if she had the following background and history, as the visa applicant did in Ogawa:

Is section 501(3)(A) of the Migration Act unconstitutional? 

Recall: this section of the Act makes if mandatory for the Minister to cancel the visa of a person who 1) does not pass the character test by reason of having a “substantial criminal record”, as defined under section 501(a); or 2) has committed sexually based offences involving a child; and the person is serving a sentence of imprisonment, on a full time basis, in a custodial institution for an offence against a law of the Commonwealth, or of a State or Territory. 

Is this section of the Act unconstitutional because it imposes an additional “punishment” on the visa holder, and therefore infringes against Chapter III of the Australian Constitution, which vests exclusive power on the judiciary to impose punishment on persons as the result of criminal conduct

On 7 February 2018, Queensland Senator Pauline Hanson of the One Nation Party introduced a bill into the Senate which proposes changes to the Australian Citizenship Act that are even more draconian than the amendments that were supported in 2017 by the Turnbull Government - which ultimately did not secure passage.

The bill sponsored by Senator Hanson is entitled the "Australian Citizenship Legislation Amendment (Strengthening the Commitment for Australian Citizenship and Other Measures) Bill".

The principal features of the legislation are:

Is there anything that you can do to challenge the opinion of an independent expert concerning whether an applicant for a partner visa has suffered family violence? 

Or does regulation 1.23(10), which requires that the Minister – that is either the Department or the Tribunal – to take the independent expert’s opinion to be correct the “end of the matter”? 

Does this regulation necessarily put a Tribunal decision that is predicated on an independent expert’s opinion that the applicant was not the victim of family violence beyond contest?