Australian Immigration Daily News

How far does the right to procedural fairness extend?

Does the right extend so far that an applicant has the right to be notified by the authority that has administered an IELTS test that it intends to cancel her or his test results on the basis that the test was taken by an “impersonator” and not by the applicant herself or himself?

This was the issue that was at the heart of a case that was recently decided by the Full Court, Verma v Minister for Immigration and Border Protection (2018) FCAFC 87 (7 June 2017).

As lawyers who represent applicants in proceedings before the Federal Courts will be aware, it "ain't" that common that the Minister will concede that the Tribunal has committed jurisdictional error and will agree that "constitutional writs" should be granted quashing the Tribunal's decision and remitting the decision back to the Tribunal "for re-determination in accordance with law".

But as the saying goes, "miracles do happen" and in fact in a small percentage of cases, the Minister will accept that the judicial review application is meritorious and that the case should be settled.

A recent judgment that was issued by Judge Street of the Federal Circuit Court, Chu v Minister for Immigration & Anor (2018) FCCA 1289 (17 May 2018) provides a sound reminder of the practice that should be followed when there has been agreement to settle a case.

Should Australia be cancelling the visas of persons who are owed protection under Australia’s international treaty obligations?

Is it enough that Australia punish people who are convicted of criminal offences while holding protection visas, or should they be “sent back” to the countries of their nationality notwithstanding that they would be at risk of harm?

How should the balance be struck between the very legitimate interest in protecting the Australian community from the risk of harm associated with releasing a person with a serious criminal history, and, on the other hand, Australia’s “non-refoulement” obligations?

Can a visa applicant be asked to leave the hearing room when the Tribunal takes evidence from another witness?

If so, under what circumstances?

These issues may seem “technical” and of interest only to “lawyers”.

The Law Council of Australia has recently published (on 11 May 2018) a set of submissions to the Australian Parliament’s Joint Standing Committee on Migration regarding the efficacy of current regulation of Australian migration agents.

These submissions from the Law Council will be of interest to lawyers practising in the field of migration law as well as to Registered Migration Agents, as it is possible that these submissions may result in or influence future changes to the regulatory regime governing the practice of RMAs.

The submissions from the Law Council can be accessed by clicking on this link, while submissions from other interested persons can be accessed here.