Australian Immigration Daily News

In yesterday’s post, we saw, in the discussion of the Full Court’s decision in the Carrascalao case, an illustration of possible avenues to challenge decision-making by the Minister (for example, where the Minister exercises personal powers to cancel a visa on character grounds).

Namely, where it can be shown that the Minister (or another decision-maker) clearly has not had sufficient time to review the background materials relevant to a decision, then it may well be open to challenge or contest that decision on the theory that there was not been “genuine, proper and realistic” consideration of the merits.

Sorry to say, but today we’re back to the “old normal”: another decision of the Federal Court that shows that challenging a visa cancellation decision will most commonly be very difficult, and that attempts to raise creative and novel grounds of fighting visa cancellations will not easily be accepted by the courts.

Does “haste make waste”?

That’s one of the most famous sayings of Benjamin Franklin (one of the leading intellectuals of colonial America!).

A recent decision of the Full Court, Carrascalao v Minister for Immigration and Border Protection (2017) FCAFC 107 (24 July 2017) gives an answer to this question, at least in the context of decisions made personally by the Minister to cancel visas on character grounds.

Will a bad driving record prevent me from getting Australian citizenship? 

This is a very common question, of course. 

It is likely that at some point in their driving history, almost everyone will commit some form of offence.  Even I did! Several years after our family moved to Australia I managed to cruise right through two speed cameras faster than the speed limit. Even though I am supposed to be able to understand English, the clear warnings about the speed cameras didn’t register in my mind! So epic fail, or “rip” (rest in peace!). Boom! But luckily for me, I just paid the fines, so the incidents didn’t result in a record of conviction. And they didn’t prevent me from getting Australian citizenship (neither did my inability to answer the question: “What are the benefits of Australian citizenship” at my interview, without prompting – these were the “good old days” before the introduction of the Australian citizenship test (readers are of course required to accept that notwithstanding these admissions of nefarious conduct, I truly am a person of “good character” and the Department did not make a grave error when it approved my citizenship application!!!). 

Is it possible to stop the Department from acting to refuse a visa application on character grounds? 

Or to put this question in a more legally precise way, is it possible to get an injunction to restrain the Minister from “exercising the discretion” under section 501(1) of the Migration Act to refuse the grant of a visa on character grounds? 

These questions were at the heart of a recent case that started out in the High Court, and which was ultimately decided in the Federal Court: Plaintiff S111/2017 v Minister for Immigration and Border Protection (2017) FCA 813 (20 July 2017). 

What is the correct test for determining whether the position for which an applicant for a 457 visa has been nominated is “genuine”? 

This is a question that is of course of critical importance for applicants for 457 visas and their sponsoring employers, as the Schedule 2 criteria for 457 visas include as a key element the requirement that the Minister be satisfied that “the position associated with the nominated occupation is genuine” - clause 457.223(4) (d) (ii) – and because it is common for 457 visa applications to be refused on the basis that the reviewing delegate is not satisfied that the position is in fact genuine. 

So it is worth noting a recent decision from the Federal Court of Australia in which this issue was revisited, Pasricha v Minister for Immigration and Border Protection (2017) FCA 779.