Australian Immigration Daily News

The familiar expression that “timing in life is everything” is used so frequently because it is confirmed by our every-day experience.  But who would think that the truth of this saying would be demonstrated yet again by a decision of the Federal Circuit Court that is “buried” on the Austlii Website? Yet indeed, surprising as this may sound, a recent case, Isanan v Minister for Immigration & Anor, (2015) FCCA 1397 (29 May 2015) does provide another illustration of how critical timing can be! 

The Isanan case involved the refusal of a Permanent Partner Visa.  The applicant, Ms Isanan, was a Filipino citizen who held a Provisional Partner Visa (subclass 309). Her husband and sponsor died suddenly on the same day that she arrived in Australia. Ms Isanan sought to qualify for a Permanent Partner Visa (subclass 100) on the basis of clause 100.221(3)(b) of Schedule 2 of the Migration Regulations.  

 As will be well known to RMAs, one of the usual requirements for obtaining a Permanent Partner Visa is that at least 2 years must have passed since the application for the Provisional Partner Visa was made (see regulation 100.221(2)(c)). However, clause 100.221(3)(b) provides an exception to this “normal rule”.  Under the clause, an applicant can be eligible for the grant of a Permanent Partner Visa if the sponsoring partner dies after the applicant first enters Australia as the holder of a Provisional Partner visa. 

The Federal Circuit Court has held that it is jurisdictional error for the Migration Review Tribunal to accept an opinion of the Medical Officer of the Commonwealth that is not supported by the evidence. The Court has also ruled that it is jurisdictional error for the MRT to refuse to grant an adjournment of proceedings in order to enable the review applicant to obtain information to refute the unsubstantiated or incorrect findings of the Medical Officer.

These findings were handed down in the case of Haque & Ors v Minister for Immigration & Anor, (2015) FCCA 1765 (2 July 2015). The decision is significant for all RMAs who are assisting applicants with appeals to the MRT following the Department’s refusal of a visa due to alleged failure to satisfy the “health criterion” of PIC 4005.

The background of this case was that the “primary applicant” was a citizen of Hungary who was seeking a subclass 886 Skilled Sponsored visa.  The primary applicant had two children, one of whom was a 12-year old girl who was suffering from “autistic spectrum disorder”.  

Is it possible for a person who is married to, or the de facto partner of, an Australian citizen to get Australian citizenship even if the person lives overseas most of the time? And if it is possible, under what circumstances may the person qualify for citizenship?

These questions were presented to the Full Court of the Federal Court in the recent case of Minister for Immigration and Border Protection v Han, (2015) FCAFC 79 (4 June 2015). In its decision, the Court provided clear and unequivocal answers. And in the process, the Court adopted an interpretation of the Australian Citizenship Act that had previously been accepted in some judgments of the Administrative Appeals Tribunal, but rejected in others. In other words, there was a “split”, or “difference of opinion” in the AAT about the requirements of the legislation. The decision of the Full Court in Han resolves that “split”.

The issue that was before the Court in Han was about the exercise of the Minister’s discretion to grant relief from the residency requirements that normally apply when a person is seeking citizenship on the basis of “conferral” – that is, where the applicant is not entitled to an automatic grant of citizenship as a result of being born in Australia with one or both parents holding Australian citizenship or permanent residency at the time of the person’s birth.

The saying “truth is stranger than fiction” is popular because it is constantly being confirmed by our everyday experience.  As RMAs will know from their daily work, this time-honored expression certainly applies to the realm of migration law! There are constantly incredible, amazing and unlikely stories!

A recent case from the Federal Circuit Court, Vata v Minister for Immigration & Anor (2015) FCCA (26 June 2015) is a perfect illustration!

In this case, the visa holder, Mr Vata, was successful in getting the Department’s cancellation of his permanent residency visa overturned.

As all RMAs will know, the submission of fraudulent information or material in support of a visa application can have disastrous consequences for the client/visa applicant.  To start with, lodging false or misleading information can cause a visa application to be refused on the grounds that the applicant does not satisfy Public Interest Criterion 4020. Furthermore, submitting false or misleading information with one application may prevent the person from obtaining another visa for a period of 3 years.  For these reasons, the importance of ensuring that all information that is given to the Department as part of a visa application is completely true and accurate cannot be overstated.

A decision of the Full Court of the Federal Court of Australia that was handed down earlier this year will be of interest in this regard, as the decision explores the circumstances under which a visa applicant can be held responsible when the applicant’s migration agent is responsible for providing the fraudulent information to the Department.  The case that led the Court to consider this issue was Prodduturri v Minister for immigration and Border Protection FCAFC 5 (29 January 2015).

The facts of the case were that the visa applicant engaged a firm of migration agents to assist him with lodging an application for a “subclass 485” visa for temporary skilled employment with the Department.  The applicant’s instructions to his migration agents were to the effect that they should not file the application for the visa if he was not entitled to it.  The visa applicant then left the preparation of the application entirely in the hands of his agents.  As the Migration Review Tribunal put it in its decision affirming the Department’s ultimate refusal of the application: