Australian Immigration Daily News

Under what circumstances will Australia's protection obligations be “enlivened” under the Convention relating to the Status of Refugess (1951) (“the Refugees Convention”)?

Is it enough for a person to show that she/he is at risk of any period of detention at all if she/he were to return to her/his country of nationality or habitual residence?  In other words, can the simple possibility that a person may be detained for a period of time constitute “serious harm” within the meaning of the Migration Act, sufficient to warrant the grant of a protection visa?  Or is it necessary for there to be a more “granular” assessment of the circumstances relating to the circumstances that are feared by the claimant, and to analyse issues such as the frequency, length or conditions of the threatened detention in order to support a finding that the person will be subject to “serious harm”? And what if the person is taken into detention in an arbitrary manner, without regard to the procedural safeguards that must be observed in Australia and other Western countries?

These issues came before the High Court of Australia for consideration in two companion cases that were decided at the end of June of this year, Minister for Immigration and Border Protection v WZAPN and WZARV v Minister for Immigration and Border Protection  (2015) HCA 22 (17 June 2015).

Character, character character!

Issues relating to character are literally ubiquitous in Australian migration and citizenship law.

In order to get any kind of visa to enter Australia in the first place, one must be able to satisfy the “character test” of section 501 of the Migration Act.  Under section 501(6), a person will “fail” the character test if she/he has a “substantial criminal record”, which is defined by section 501(7) to include having been sentenced to a term of imprisonment for 12 months or more, or to 2 or more terms of imprisonment totaling 12 months or more.

What type of conduct can land an RMA in hot water with the Office of the Migration Agents Registration Authority (“OMARA”)? 

This is an issue that should be of interest and concern to all RMAs!

Under section 303 of the Migration Act, OMARA has the power to caution an RMA or to suspend or even cancel her or his registration. This power can be exercised when an agent’s application for registration is known to be false or misleading in a material particular; the agent becomes bankrupt; or the OMARA finds that the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance. 

A recent decision by Judge Street of the Federal Circuit Court has provided clarification concerning the circumstances when the Administrative Appeals Tribunal has jurisdiction to hear appeals against the Department's refusals to grant 457 visas. 

It is essential that all RMAs who are assisting clients who have received such refusals, and who are considering whether or not to seek review before the AAT, be aware of this case, Kandel v Minister v Immigration & Anor, (2015) FCCA 2013 (7 August 2015). 

It appears that it has been the case that the AAT and its “predecessor”, the Migration Review Tribunal, has been taking the view, based on the decision of Judge Nicholls in the case of Minister for Immigration v Lee & Ors  (2014) FCCA 2881 (10 December 2014) that it did not have jurisdiction to accept appeals in cases where either there was 1) not, at the time that the application for review is made to the AAT, either an approval of the nomination of an occupation in relation to the 457 applicant in force, or, alternatively, 2)an application for review of a Departmental decision not to approve the nomination made by the sponsor pending before the MRT/AAT.  It also seems to have been the case that the MRT/AAT has been sending out what might be referred to as “Lee letters” when the nomination has not been approved and in force, or a refusal of a nomination has not been the subject of an application for review to the AAT/MRT, informing review applicants of its views that it does not have jurisdiction in these situations.

We are all familiar with the old saying that: “We are haunted by the ghosts of our past”. 

This well-worn phrase has been shown to have considerable truth and force recently. There has been story after story in the news media about high profile people being caught up in allegations of sexual abuse involving decades-old incidents. One need look no further than the stories that have been reported about allegations relating to former British Prime Minister Ted Heath and to the television performers Rolf Harris and Bill Cosby. And of course the Royal Commission Into Institutional Responses to Child Sexual Abuse has unearthed accounts of incidents that occurred many years ago. 

These types of stories are not only pervasive in the news media. In fact, just at the end of last week, on 7 August 2015, a decision was handed down by the Federal Court of Australia that demonstrates, very powerfully, that there really is no escape from the ghosts of one’s past where sexual offences are concerned, and that events that may have seemed to have been buried and forgotten can come back to haunt a person with an absolute vengeance!