Australian Immigration Daily News

Does an applicant for a partner visa have a right to have a lawyer present when she/he is being interviewed by an independent expert to determine whether she/he has been the victim of family violence? 

This question was recently addressed by Judge Street of the Federal Circuit Court in the case of Bhalla v Minister for Immigration & Anor, (2015) FCCA 2381 (1 September 2015). As will be discussed below, Judge Street answered this question “in the negative”. His Honour held that it is not inconsistent with principles of “procedural fairness” – and therefore it does not amount to “jurisdictional error” – if an applicant’s lawyer is not permitted to accompany the applicant to an interview with an independent expert who is making an assessment as to whether “family violence” has occurred.  So the short answer: the applicant does not have a right to have a lawyer present.    

Readers of this blog will recall that late last week, a news article appeared on the ABC News Website that reported that Judge Street had ruled against visa applicant in 252 out of 254 cases that he had decided during the period between January 2015 and June 2015. That news article from the ABC, “Federal Circuit Court judge Alexander Street accused of bias after rejecting hundreds of migration cases” can be accessed by clicking through on the link.  

If, like me, you are constantly checking the Austlii Website to see what the latest and greatest pronouncement on migration law from the Federal Courts is (ok readers, don’t all put up your hands at once and say “Oh yeah, I check Austlii at least 4 times a day”!!) then you will have noticed that one of the issues that is decided most frequently is whether to grant an extension of time to allow a late application for judicial review of a decision by the Administrative Appeals Tribunal to proceed.  

The issue seems to come up dozens of times a year.  And for those of us who are either “old enough to remember” (I’m definitely not!) or who are inclined towards the music of the ‘60s and early ‘70s, the issue brings to mind the lyrics of the famous Carole King song “It’s Too Late” from the album “Tapestry”: 

“And it's too late, baby now, it's too late,
Though we really did try to make it.”

Wow. Just. Wow.

That was my initial reaction when I came upon this article on the ABC News Website last night that apparently prompted the article that was posted on the Migration Alliance blog by my colleague Jerry Gomez:

http://www.abc.net.au/news/2015-09-10/federal-court-judge-alexander-street-accused-of-bias/6764704

Is there any way to avoid the cancellation of a student visa when the visa holder breaches a condition of the visa that requires him to be enrolled in a registered course throughout the duration of the visa?

This was the dilemma that confronted the visa holder in the case of Karki v Minister for Immigration and Border Protection & Anor, (2015) FCCA 1940 (20 July 2015). Unfortunately for the visa holder, the breach of the condition led the Department to cancel his student visa in the first instance, and that cancellation was affirmed both by the Migration Review Tribunal (as it was then known) and by the Federal Circuit Court.

However, the decision does highlight some possible “escape routes” that might be relied on by the holders of student visas to preserve their visas against cancellation and thus to maintain their entitlement to remain in Australia to continue with their studies. 

A person who holds permanent residency status in Australia, but then returns to their home country and remains there for a long period of time may encounter significant difficulty in getting a Resident Return visa to regain their permanent residency status. 

The eligibility criteria for a Resident Return visa (Subclass 155) that are specified in Schedule 2 of the Migration Regulations  specify not only that the applicant must have “substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia” (clause 155(212)(3A)(a), but also, if the person has been absent for a continuous period of 5 years or more since the date of grant of the applicant’s most recent permanent visa”, must demonstrate that there were “compelling reasons” for the absence (clause 155.212(3A)(b). 

So what reasons for being absent from Australia for a period of more than 5 years can be considered sufficiently “compelling” to support the grant of a Resident Return visa.  This question was considered by the Federal Court of Australia in the leading case of Paduano v Minister for Immigration and Multicultural Affairs (2005) FCA 211 and was recently re-visited by Judge Neville of the Federal Circuit Court in Cirillo v Minister for Immigration & Anor, (2015) FCCA 2137 (14 August 2015).