Australian Immigration Daily News

Is the recent (December 2017) decision of the Full Court in He v Minister for Immigration and Border Protection (2017) FCAFC 206 a complete “game changer” when it comes to partner visa applications?

Does the He decision mean that the Tribunal must expressly and specifically refer to each and every one of the “circumstances of the relationship” that are listed in Regulation 1.15(A)(3)?

Or is it “good enough” (that is, “good enough” to prevent the Tribunal’s decision from being “quashed” or “set aside” if it is apparent from the Tribunal’s decision record that the Tribunal has “considered” all of the circumstances that are listed in Regulation 1.15(A)(3) – even if the Tribunal does not discuss each and every one of these circumstances expressly and specifically?

Jaw-dropping. Astonishing. Incredible. Unbelievable.

There don’t seem to be any other words to describe the decision of the Administrative Appeals Tribunal in the case of Abboud v Minister for Immigration and Border Protection (2018) FCA 185 (2 March 2018).

This was a case involving an application for a partner visa, where the Tribunal had concluded that the sponsor and the applicant were not, and had never been, involved in a genuine, continuing and exclusive spousal relationship”.

At the end of last year, on 14 December 2017, the Full Court handed down a decision, He v Minister for Immigration and Border Protection & Anor (2018) FCAFC 206 that is an exceptionally important tool for challenging adverse decisions of the Administrative Appeals Tribunal affirming the refusal of partner visa applications.

It would have been easy to miss the He decision, given that it was handed down shortly before Christmas and the December – January summer holidays, when our thoughts turn (temporarily!) away from full-time  preoccupation  with migration issues, and towards sun, sand, surf, surfing, barbecues and even to avoiding bluebottles, brown snakes and blue-ringed octopi at the beach!

But the case really oughtn’t to be missed. It is perhaps the most consequential court decision relating to partner visas since the Full Court’s (revolutionary) decision on “Schedule 3” issues in Waensila, which was handed down in March 2016.

Are Australia's migration laws overly strict and punitive when it comes to visa cancellations? 

Do they run roughshod over our expectations of procedural fairness, natural justice and the presumption of innocence? 

I will share with you the story of a case that I recently handled in the Federal Circuit Court. 

It is really amazing, astounding and astonishing how long certain issues can continue to “linger”, even after an amendment has been made to the Migration Act.

A recent case from the Federal Circuit Court, Kaur v Minister for Immigration & Anor (2017) FCCA 3369 (12 December 2017) which just “surfaced” on Austlii provides a prime example!

Readers may recall that the Migration Legislation Amendment (Student Visas) Act 2012, which came into force on 12 December 2012, amended the Education Services for Overseas Students Act 2000 (“ESOS”)to end the “automatic” cancellation of student visas under section 137J of the Migration Act.