Australian Immigration Daily News

We have very recently had a (lively!) debate on this blog about whether the Migration Act “tramples” on “common law” rights.

Coincidentally or not, there has just been a decision from the Federal Court which reinforces the concept that the requirement for “procedural fairness” is one of the basic cornerstones of the Act.

(As regular readers of this blog may recall, the failure to provide procedural fairness is one of the very few grounds upon which a decision by the Minister to cancel a visa on character grounds may be overturned).

What is the correct interpretation of Public Interest Criterion 4020? 

Suppose a “bogus document” has been submitted to a relevant skills assessment authority, and that authority then issues a skills assessment based on that document. 

Does that mean that PIC 4020 has been engaged, and that your client's application is “dead on arrival”? 

Gee whiz!!!!

There are times when you look at the decisions that are coming out of the Federal courts, and it can just make your head spin!

Well, that was certainly my reaction when I had a look at Austlii today and came across the decision of the Federal Circuit Court in the case of Kaur v Minister for Immigration & Anor (2016) FCCA (11 March 2016).

The Full Court of the Federal Court has issued a decision which is likely to transform or even revolutionise the way that applications for partner visas are assessed in Australia!! 

How often does that happen? Not very often at all!! 

So it is exciting, dramatic and important when it does!!! 

The Full Court of the Federal Court issued a decision on Friday 11 March which holds that the Department's discretion not to apply Schedule 3 criteria in partner visas is not limited to consideration only of "compelling and compassionate circumstances" which were in existence at the time of the application.

Under this ruling, the Department (and the Tribunal) are required to take into account circumstances which arose after the application was made but before the application was determined.

This decision obviously has immense significance for people who do not hold substantive visas at the time that they are making onshore applications for partner visas, and for RMAs who are advising them.