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Procedural Fairness: When?
Recent decisions of the Federal and High
Court have highlighted the difficulties of applicants (and
their advisors) in ensuring that they are dealt with fairly
and in finding recourse for situations where they are not.
This is especially so since the inclusion of specific sections
of the Migration Act 1958 (“Act”) that
purport to make an exhaustive statement of the requirements
of natural justice in relation to immigration decisions. It
is a difficult situation for advisors. This article examines
steps that can be taken to avoid such problems, and steps
to take when confronted with a denial of procedural fairness...
By Rowena Irish, IARC
What can you
do if your client is denied procedural fairness?
Even if you take all the steps above, this is no guarantee
that your client will be afforded procedural fairness. If
there is a denial, then there are avenues of appeal which
can be taken and there are important points for an advisor
to note when taking such steps...
Student cancellation chaos
DIMIA continues to cancel the visas
of numerous overseas students for alleged breaches of Condition
8202 (enrolment course attendance and academic performance)
and Condition 8105 (work restrictions). Such cancellations
can have devastating consequences with the student incurring
significant financial losses and often losing the opportunity
to apply for permanent residence under the general skilled
migration. Also, in most cases students who have had a visa
cancelled face a three year re-entry ban on returning to Australia
on temporary visas...
By Peter Bollard, Peter Bollard
& Associates
The seven day
rule
The “7 Day Rule” was introduced as a means of
preventing refugees from choosing Australia as their preferred
place of asylum. However, its application in recent cases
reveals its potential to deny permanent protection to individuals
who in fact had no real choice and towards whom Australia
has protection obligations under the UN Refugees Convention...
Recent Federal
Court case law on Article 1C
The assessment of the Further Protection Visa (FPV)
has raised issues about the interpretation of Article 1C of
the Refugee Convention. Article 1C(5) provides...
Regional Sponsored
Migration opportunities for TPV holders
As is now known, the 27 August 2004 amendments to the Migration
Act 1958 allow Temporary Protection Visa (“TPV”),
Temporary Humanitarian Visa (“THV”) and Return
Pending Visa (“RPV”) holders to apply onshore
for certain ‘mainstream’ temporary and permanent
visas. This was discussed in a recent article in Issue 72
of the Immigration News. This article will concentrate on
the Regional Sponsored Migration Scheme Visa Subclass 857
(“RSMS visa”)...
By Susannah McNeill, IARC and Sarah
Di Giglio, RACS
Condition 8503
– 26 words of confusion
All advisers would be familiar with Condition 8503 (no further
stay) which provides as follows; ‘The holder will not,
after entering Australia, be entitled to be granted a substantive
visa, other than a protection visa, while the holder remains
in Australia.’ However there is a great deal of confusion
about the effect of the condition. To fully understand the
impact of Condition 8503 it is necessary to look at the legislation
which provides the statutory framework for the condition...
By Peter Bollard, Peter Bollard
& Associates
Recent changes:
places of lodgement
Correctly identifying the place where an application for an
Australian visa should be lodged can sometimes be difficult.
Where the application will be lodged may vary depending on
the country of residence of the applicant, the type of visa
being applied for, recent changes by the Department and recent
political developments in the local region. For example, the
bombing of the Australian Embassy in Jakarta in 2004 meant
the temporary cessation of processing of visa applications
and the necessity for alternate arrangements to be put into
place for those countries serviced by the Australian Embassy
in Jakarta. In addition, there are those applications which
can be made electronically...
By Rowena Irish, IARC
Strange but true
There are many little known, trivial or unusual rules in migration
law and policy that can have an enormous impact on visa applicants
and visa holders. Below are just a few....
Legislative changes
update
To help keep you up to date with the latest legislative changes,
including changes to forms, watch this spot in each edition
of Immigration News. This information is based on changes
published on the DIMIA website...
By Rowena Irish, IARC
Case notes
Hamdan v Minister for Immigration and Multicultural and Indigenous
Affairs [2004] FCA 1267
This was an interesting case at the Federal Court about whether
the Minister could compel an advisor to disclose contact details
for an unlawful client.
FACTS: The applicant, to whom Ms Hamdan was a solicitor for,
who was released from detention by an interlocutory order
following an unsuccessful application for a protection visa.
He was released because the court found there was no prospect
of removing him from Australia in the reasonably foreseeable
future....
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