The role of the Office of the MARA is very important, as it protects the vulnerable. 

1. Subsequent to an agent facing disciplinary proceedings there is a right of review before the Administrative Appeals Tribunal (the Tribunal). 

1. The process of presenting witnesses and obtaining documents in support at the Tribunal includes the following: 

Draft Summons have to be filed.  The Tribunal has the discretion to grant the Summons.  The admissibility of evidence requested is a matter for the Tribunal’s discretion.  The Agent can only hope the evidence requested will be approved.

Currently OMARA has extraordinary power.  For example, a recent decision enables supervision to extend to the provision of alleged “indirect immigration assistance”, that is not directassistance.  This may include, for example, hearsay allegations from persons the former Agent has never met.  The basis of an allegation may be a statement by a third party, not the Complainant about what the Agent has allegedly done.  The whole issue of regulation of “indirect immigration assistance” may open a Pandora’s box. The obvious question is what are the parameters – the limits – of the power examining the behaviour of the Agent with respect to the provision of such alleged “indirect assistance”?

This is the story of a recent class action in New York presented on behalf of a group comprising of the Australian Stolen Generation based on claims of improper mass child migration (children from Malta and England) for the purposes of human trafficking.  The Court held, in effect, the “Stolen Generation” never took place, as understood by the Australian public and most importantly the victims.  Children were never placed in institutions operated by international religious orders, such as the Congregation of the Christian Brother (CCB) and the Sisters of Mercy (SOM).  Therefore such groups were not and could be guilty of any abuse.

NO LEGAL REMEDY IN AUSTRALIA

Regardless of whatever allegedly occurred to the children, a brutal regime of current Australian law destroys all possibility of legal remedy for the following reasons.   Some of the legal impediments include: 

1. The Ellis Case.  Orders that operated the institutions were structured as unincorporated voluntary associations so they cannot be sued.
2.  
3. The 1935 Limitation Act of Western Australia.  Apart from Ellis case this odious law destroys any remedy (even in most cases involving fraud) the Statute of Limitations (SOL) cannot in most cases be extended. 

THE ISSUE

How useful is the Full Court’s decision in the case of Waensila v Minister for Immigration and Border Protection (2016) FCAFC 32?

Remember? That’s the decision that was handed down by the Full Court a bit more than 8 months ago, on 11 March 2016.

And when that decision was delivered, it seemed like it had the potential to turn at least a part of migration practice “on its head”.  The part where an applicant is seeking a Partner visa (Subclass 820) while onshore, but no longer holds a substantive visa (and has not held a substantive visa for more than 28 days after her or his last substantive visa ceased to be in force), and thus cannot satisfy the criteria of Schedule 3 of the Migration Regulations.

How should the visa cancellation powers vested in the Minister under the Migration Act be used?

Should a visa holder who commits a serious criminal offence be “thrown out” of Australia, no matter what?

Should that frequently used formulation that: “a person who commits a serious criminal offence should expect to forfeit the privilege of remaining in Australia” be applied uniformly and without exception?

Ain’t the Internet wonderful?

Without the glories of the World Wide Web, which of course was “invented” by former US Vice-President Al Gore (or so he was said to have claimed (we all know that it was actually invented by Donald Trump – if he says so it must be true!)) we wouldn’t have wonderful philosophical questions to ponder, such as: “When is an email received?”. 

Or even better, what does the phrase “at the end of the day”, as used in section 494C(5) of the Migration Act actually mean?