Australian Immigration Daily News

Is a failure to comply with Schedule 3 criteria necessarily “fatal” to a visa application? 

What about in circumstances where there is no possibility of getting Schedule 3 waived? 

For instance, what about in the case of a “New Zealand Citizen Family Relationship” visa (Subclass 461)? 

Imagine that you are contacted by a potential client who is in immigration detention and asks if you are able to help him. 

Imagine further that the client tells you the following information about his situation: 

He was the holder of a 457 visa.  When he went to the international airport in Sydney to take a flight overseas, he filled in an “outgoing passenger card”.  He responded to a question on the card that asked whether he was taking more than $10,000 out of Australia by answering “No”.  However, a routine search of his baggage by officers of the Australian Border Force revealed that he was in fact carrying more than $24,000. 

Suppose you have a client who has posted material on her/his Facebook page that appears to contradict or be inconsistent with a claim made in the client’s visa application. 

Suppose further that the Tribunal makes a decision in which it relies on what is said in the Facebook page as the reason, or part of the reason, for affirming the refusal of the visa application. 

Does the Tribunal in this circumstance have a “procedural fairness” obligation under either sections 424A and 424AA of the Migration Act (in the case of applications for Protection visas) or otherwise under sections 359A and 359AA in the case of other kinds of visa applications to give the applicant clear particulars of any information on the Facebook page, invite the applicant to comment or respond, and notify the applicant that she/he may seek additional time to do so? 

When the High Court hands down an interpretation of the Migration Act, it is important that we all pay attention.  

So it is important that we be aware of a decision that was delivered by the High Court yesterday, 31 August: Maritime Union of Australia v Minister for Immigration and Border Protection (2016) HCA 34. 

And that is true even if the case - like this one – doesn’t appear to impact on the day-to-day activities of most Registered Migration Agents and migration lawyers. 

Do you find the provisions of the Migration Act that limit the role of a migration agent/lawyer at a hearing before the Administrative Appeals Tribunal to be frustrating? 

As we all know, although section 366A of the Act provides that an applicant is entitled, while appearing before the Tribunal, to have am “assistant” present at a hearing that is convened under section 360, section 366A(2) also says that the “assistant” is not “entitled to present arguments to the Tribunal, or to address the Tribunal, unless the Tribunal is satisfied that, because of exceptional circumstances, the assistant should be allowed to do so”. 

Does this mean that as a migration agent or lawyer acting for an applicant you are effectively reduced to being a bump on a log during the hearing?  That you are just an observer, and that there is little value that you can contribute by attending the hearing with your applicant/client?