Australian Immigration Daily News

How can you tell whether your client has been denied a fair hearing before the Administrative Appeals Tribunal?

For example, suppose, on the day before the hearing, the Minister’s lawyers “dump” a large volume of documents on you?

Or suppose that your clients is being questioned by the Tribunal, or cross-examined by a lawyer for the Minister. If your client is not advised by the Tribunal of her/his right to decline to answer because of the privilege  against self-incrimination, does that mean that your client has been denied a proper hearing, that jurisdictional error has occurred, and that the case needs to be sent back to the Tribunal for re-determination?

Every Migration Agent understands that the process of providing advice and assistance to potential migrants is complex, and the stakes can be high. Migration Agents are entrusted with having the right knowledge to deal with each person’s unique case, and clients expect flawless service at every point. When things go wrong, tensions can run high. Professional Indemnity insurance could be the key to protecting you and your reputation from a potentially large financial claim, and a prolonged period of stress.

First, let’s be clear about its purpose: Professional Indemnity insurance provides financial protection against potential losses arising out of acts, errors and omissions from professional services and advice provided, including:

• Negligence in providing professional services
• Breach of duty of care
• Allegations of misrepresentation or of creating a misleading impression
• Breach of statutory provisions in various laws
• Incorrect or inadequate advice
• Errors on Visa applications
• Late lodgement of documentation

So, we’re talking about liability for services and advice provided. Effectively, this means that if a client engages a registered Migration Agent to assist them navigate the complex world of visa applications and something goes wrong, or is even perceived to have gone awry, the business could be faced with a financial claim equivalent to the client’s losses, as well as additional compensation.

What is the appropriate relationship between the Department of Immigration and the criminal justice system?

Should the Department be able to effectively “override” a decision made by a magistrate to grant a criminal defendant bail by refusing a criminal justice stay visa, with the consequence that a non-citizen will be held in immigration detention pending determination of her or his criminal case?

What if the person is ultimately determined to be innocent of the charge?  Won’t he or she have been held in immigration detention improperly?

How broad are the Minister's powers to cancel a visa under section 501(3) of the Migration Act?

And how difficult is it to challenge a decision of the Minister? Even where the visa holder has not actually been convicted of any criminal offences, and the cancellation is based on a finding that the visa holder has had a past association with a group or organisation that has been involved in criminal activity? Even where that association was apparently many years in the past?

The unsurprising answer to all of these questions, as illustrated by a decision of the Full Court of the Federal Court that was handed down in February, Taulahi v Minister for Immigration and Border Protection  (2018) FCAFC 22 (19 February 2018) , is that it is "very" or "extremely" hard to challenge a visa cancellation on character grounds, even in the described above.

Is there any way to salvage a client’s situation if a third party submits a bogus document or information that is false and misleading in a material particular to the Department, and Public Interest Criterion 4020 is engaged, leading to the refusal of a visa application? 

Or is PIC 4020 an insurmountable barrier, a complete “brick wall” that there is no way to get around? 

In the wake of the Full Court’s decision last week in my own case, Singh v Minister for Immigration and Border Protection, it might seem that PIC 4020 really is a brick wall.