Australian Immigration Daily News

As a lawyer, I have often found that I can learn a whole lot more by reading cases where “things went wrong” than cases where “everything went swimmingly” and someone “routinely” won their case. 

The cases where problems caused someone to lose in court can teach us a lot about the types of issues that can cause a visa application to fail. And so if we know about those problems, hopefully we can avoid them when we deal with our own cases. Or at least figure out if there’s any guidance we can give our clients to help them mitigate the problems with their applications, and improve their chances of getting a visa.  Or at least be able to advise our clients about the potential pitfalls or “landmines” in their cases, so they can know about the possible risk they face and make an informed judgment about whether they want to go ahead with the application notwithstanding the risks.  

In this regard, a recent case from the Federal Circuit Court – Zaoud v Minister for Immigration & Anor (2015) FCCA 3138 (25 November 2015) – makes for useful reading. 

In my most recent article last week, I made some observations about how frustrating, even heartbreaking, it can be when the Department and the Tribunal assess a partner visa application with a skeptical, perhaps “cynical” eye.  

It would be hard to imagine anything much worse, in the context of migration law, than for people who genuinely love each other and want to spend their lives together in Australia, to have their partner visa refused because the Department does not accept that a relationship is genuinely genuine.  As RMAs, a big part of our job is to help people’s dreams come true. So how disappointing and devastating must it be when a legitimate partner visa application gets “knocked back”? 

At the same time, we all recognize that the Department does have a legitimate task to do in relation to partner visas.  Unfortunately, not every partner visa application is the product of a genuine relationship. And it surely can’t be argued that the Department has a perfectly proper role to play in “separating the wheat from the chaff” by screening out partner visa applications where the relationship is not genuine. 

Is it possible that there is anything that could be more frustrating in the “universe” of migration practice than for the Department to “doubt” the “genuineness” of a genuinely genuine relationship, and to refuse an offshore partner visa application that is genuinely meritorious? 

Bad, bad enough that the Department has seen fit to raise the application fees to a point where they cost an arm and a leg and another arm and another leg! 

And worse, worse yet that the Department’s processing times for these applications make “a snail’s pace” seem like “warp speed” – what on earth is it that makes review so beeping beeping slow?? 

“Tell the truth, the whole truth, and nothing but the truth”!

This admonition, given to potential witnesses about their paramount obligation when giving evidence in court cases, applies with equal force to visa applicants.

It is absolutely essential that visa applicants be entirely truthful in the information and documents that they provide to the Department in connection with a visa application. This obligation is stated expressly in section 101(b) of the Migration Act, which provides that a non-citizen must complete his or her application form in such a way that no incorrect answers are given or provided. The consequence of providing incorrect information on a visa application may be that the visa may be cancelled under section 109 of the Act. And under section 48, a person whose visa has been cancelled may only be able to re-apply for a very limited types of visas.

Is there any way to challenge an unfavourable decision by the Administrative Appeals Tribunal? 

This is a question that RMAs must often consider. It is a common occurrence that an application for merits review will not be successful before the Tribunal. And it may seem, both to the client and to the RMA who is assisting the client, that the Tribunal’s decision has been unfair or has incorrectly arrived at the “wrong” result. 

This may be especially true in cases where one of the criteria for the grant of the visa is to establish that the applicant would be a “genuine temporary entrant” to Australia – for instance, visitors and student visas. The RMA may believe, based on discussions with the client, that it is indeed the client’s true and sincerely held intention only to stay in Australia for a short period of time and then to return to her/his home country.  But the Department and the Tribunal may come to a completely different conclusion. The visa application may be refused in the first instance by the Department, and the refusal may be affirmed by the Tribunal.