Australian Immigration Daily News

The mountain just got a whole lot higher for anyone who may be seeking to challenge a decision by the Minister to cancel a visa on character grounds. 

As I have discussed on this blog, there have been very few cases where a visa holder has been successful in persuading the Federal Court to set aside a cancellation decision.  

And now, just yesterday, the Full Court of the Federal Court has reversed a Federal Court decision in favour of the visa holder: Minister for Immigration and Border Protection v Stretton (2016) FCAFC 11 (15 February 2016). 

What do you think about the visa cancellation powers in the Migration Act? 

Considering Australia’s origins as a “convict colony”, where people from the UK were essentially sent into what was “permanent exile” for committing criminal offences, is this a practice that we should be following today? 

What if somebody has spent their entire life in Australia since early childhood? 

Imagine that you are your desk one day.  The phone rings, and the person on the other end of the line says: 

“Hello! Can you help me? I’m here in Australia on a 457 visa. I was working a second job to support my family back in India. I didn’t realize I couldn’t do that! The Department has cancelled my visa!! Is there anything you can do for me?” 

The good news, to paraphrase the slogan from President Obama’s campaign in 2008, is “Yes you can!” Or, if you prefer the other end of the political spectrum in America, as former Vice –Presidential candidate and reality TV star Sarah Palin would say: “You betcha!”. 

Is there anything you can do to assure that your client gets a “fair hearing” before the Administrative Appeals Tribunal? 

Suppose you accompany your client to the hearing, and it is apparent from the beginning that the “handwriting is already on the wall”?  In other words, is there anything you can do when it appears that the Tribunal Member has already made up her/his mind on the merits, and that no evidence, and no submission, could possibly sway the member to determine the visa application in your client’s favour? 

Or suppose the nature of the questioning conducted by the Member appears “unsympathetic” and “insensitive” to your client’s circumstances, what then? 

Suppose you have a client who has entered Australia on a visa that is subject to a “no further stay”  condition (Condition 8503) but the client has managed to persuade the Department to “waive” that condition on the basis that “compelling and compassionate” circumstances have developed. 

Will the fact that the client has been able to get Condition 8503 waived also enable the client to get a waiver of Schedule 3  criteria on the basis that there are compelling reasons not to apply those criteria?  

In other words, if someone succeeds in getting Condition 8503 waived, does it mean that they are “automatically” entitled to a waiver of Schedule 3?