Australian Immigration Daily News

Some times, you just can win no matter what you do!

And that is true even in circumstances where the application of the migration legislation may appear to work an “unjust result”!

A case that recently came before the Federal Court, Ahmed v Minister for Immigration and Border Protection (2015) FCA 1059 (1 October 2015) provides a graphic illustration of how this can happen.

Would you agree that there are occasions when trying to work your way through the Act and Regulations to determine whether a client meets the eligibility criteria for a certain kind of visa is enough to make your eyes go out of focus, your head spin, and prompt you either to want to have a nap or go out for an early lunch and not come back to work until you have had several drinks?

Well, if so, you are not alone – even the courts have been known to remark upon the complexity of the migration legislation!!!

A decision of the Full Court that was handed toward the end of August, Talha v Minister for Immigration and Border Protection, (2015) FCAFC 115 (25 August 2015) illustrates how difficult it can sometimes be to figure out whether the criteria for grant of a visa can be satisfied.

“…tell the truth, the whole truth, and nothing but the truth”

This quote, which is an extract from the oath that is administered to witnesses in American courtrooms, is of course familiar to everyone who has watched television dramas, from the days of the 1950s show “Perry Mason” all the way up to the present, and “Law and Order”.

And indeed, the direction to “tell the whole truth” applies with equal force both to visa applications that are made to the Department, and to evidence that is given to the AAT. In fact, when I am preparing witnesses who are nervous about giving testimony in court, it is always my advice to the witness that she/he should “just tell the truth, and you’ll be fine!”

Suppose a visa applicant submits a “bogus document” to the Department in support of her/his application: is the application “dead on arrival” due to the application of Public Interest Criterion 4020? 

What if the Administrative Appeals Tribunal determines that PIC 4020 should not be “waived”?  Is your client’s application “toast”? 

A case that came out of the Federal Circuit Court yesterday, 6 October 2015,Sharma v Minister for Immigration & Border Protection & Anor, (2015) FCCA tells us: “No, not necessarily. If the AAT did not engage in an “active intellectual process” in considering the applicant’s evidence, then it may very well be found to have committed jurisdictional error.  (Of course, the least that an applicant has a right to expect is that the AAT will engage in an “active intellectual process” and indeed, jurisdictional error may be found to exist not just in cases arising under PIC 4020, but with respect to any case where the AAT fails to engage in a proper assessment of the evidence). 

Is it possible to get an injunction to stop the Department from deporting a client whose student visa has been cancelled? 

If the recent decision of Judge Manousaridis of the Federal Circuit Court in the case of Calava v Minister for Immigration (2015) FCCA 2525 (16 September 2015) is any indication, the answer to this question is that: “It will very likely be a hard slog to get an injunction, and your chances are pretty bleak!” 

The case illustrates that this is so even when the visa holder’s visa is cancelled by the Department at the airport when the visa holder is seeking to re-enter Australia, and the visa is cancelled based on a short interview that takes place at the airport only a few minutes after the visa holder is stopped at "customs".