Australian Immigration Daily News

Readers may have noted that in several articles that I have posted on the MA blog regarding visa cancellation cases, I have invited opinions as to whether Australia's legislation is "too harsh" in its approach to longstanding permanent residents.  

My assessment of the comments on this issue is that the the weight of opinion is to the effect that visa holders should expect to be removed if they commit criminal offences causing them to fail the character test, and that they shouldn't cry about it.

In light of these comments I thought it would be interesting to check the New Zealand Immigration Act and see how it compares with our own.

Suppose you have a case involving an application for a partner visa. 

There is a 20 year age gap between the applicant and the sponsor.  The evidence is that the applicant and the sponsor do not share a bank account, the sponsor does not contribute to shared household costs, and the sponsor instead spends large sums of her money on alcohol and cigarettes. 

Although the applicant and the sponsor are lawfully married,  the relationship ended after the partner visa application had been lodged, and before it was determined by the Department.  There is a claim of family violence by the applicant. However, the Department’s officer declines to consider the family violence claims on the basis that the evidence does not establish that the applicant was in a genuine and continuing relationship with the sponsor at the time of the application. 

Is the visa cancellation regime under the Migration Act too harsh? 

Does it effectively impose “double punishment” on offenders by making them subject to removal from Australia in addition to whatever sentence of imprisonment they receive? 

Should someone who has committed an offence spend a longer time in immigration detention – where they have lost their liberty as effectively as if they were in prison serving a custodial sentence – for a longer period of time than they have been incarcerated for the original offence?  

What is the proper interpretation of the genuine temporary entrant requirement for student visas? 

This is a question that has been hotly litigated in the Federal courts over the last year. 

And it is one that remains highly relevant under the new student visa framework that came into force on 1 July 2016.  That is because the genuine temporary entrant criterion has been carried forward into the new Part 500 of Schedule 2:  new clause 500.212 reads as follows:

Crazy, wacky stuff happens in life all the time, doesn’t it? 

Is there any reason that the arena of migration decision-making should be any different? 

A case that was handed down last week by the Federal Circuit Court – Kaur v Minister for Immigration & Anor (2016) FCCA 1730 (20 July 2016) shows us that it’s not!!