We have helped thousands of migrants in the past 30 years to resettle or remain in Australia. The secret to success is knowing the law, knowing how the system works, integrity and tenacity.
These are some recent success stories.
Incorrect information in an offshore refugee visa application lodged in 2012, led the Department in 2022 to send a Notice of Intention to Consider Cancelling the visa. The legislation says a response must be provided within 14 days and there is no extension of time. The Department could not extend the time to respond, but agreed not to make a decision within a reasonable timeframe. Even where incorrect information was provided, there is a broad discretion in the Migration Act and Regulations not to cancel a visa. The response was lodged and the delegate of the Minister gave a decision after one week that the discretion was exercised and the visa would not be cancelled.
We have helped in several cases where previous applications for citizenship were refused because of a failure to disclose past criminal offences. We helped lodge new applications and provided explanations for the past incidents and evidence of good conduct. The new applications were accepted and in each case, citizenship was conferred. The Department are strict in requiring a full disclosure of past criminal records, even ones which in some countries no longer appear on the official record. The Department has information-sharing arrangements with many countries, which are not public knowledge, and will find out about criminal records and travel movements.
Six days late cost over 2 years
A partner visa applicant got wrong advice in 2016 and lodged their application 6 days after a cut-off date provided in the Migration Regulations. It meant they needed to show an additional criteria of "compelling circumstances" for the visa grant.
The Department refused the application in December 2018 because it did not accept there were "compelling circumstances".
We helped lodge an appeal to the AAT in January 2019 and made detailed submissions on the compelling circumstances. In September 2020, the Tribunal made a favourable decision without a hearing, accepting there were compelling circumstances. The application was sent back to the Department for further processing. The visa was granted in November 2021.
Alleged bogus document
Applicants for offshore refugee visas received a letter from a Senior Migration Officer at the Australian Embassy in Amman in October 2019, saying they had lodged a bogus criminal record check. They were advised a Department of Immigration document examiner had found the document was not genuine, having checked with the relevant authorities who issued the document. This is a serious allegation under the Migration Act. In most visa applications, lodging a bogus document leads to a visa refusal and a potential 3 or 10-year ban from being granted another visa. It may also lead to a visa being refused on character grounds.
After engaging us as their lawyer, we asked the Principal Migration Officer at the overseas post to conduct a proper investigation, based on our instructions and that the document had been authenticated by the Ministry of Foreign Affairs in the country where issued. He agreed to investigate.
Within two weeks, we were advised by the Principal Migration Officer that the allegation of a bogus document had been withdrawn because, after a proper investigation, the document was found to be genuine. The processing continued and the visas were granted in February 2020. We assisted the clients lodge a claim for compensation from the Department for our legal fees, which were not necessary because there was never any finding by the Document Examiner the document was false. The s.57 letter should never have been sent.
When is a decision not a decision?
The High Court case of Bhardwaj says that a decision affected by a legal error is not a "decision" under the Migration Act 1958 and the visa application has not been finalised. It has to be an error of law, not a disagreement on the facts or about the weight given to each piece of evidence.
Case 1. A client's offshore spouse visa application was refused in September 2019. The decision-maker at the High Commission in Ottawa applied the wrong law to reject the application.
The usual options are either to appeal to the AAT or lodge a new application. The AAT appeal fee is $1,787 and takes 1-2+ years. A new visa application would have cost $7,715 for the application fee plus legal fees and other costs and takes about 6 months in Canada.
Neither are pleasant options. But we used a little known third option and convinced the Department to vacate the decision, as if it had never been made, because the decision applied the wrong law. The processing continued, more documents were requested and the visa was granted in November 2019.
Case 2. The Department refused a parent visa application in November 2019. The application had been lodged in Janaury 2010 and sitting in the queue.
The decision-maker failed to provide natural justice, applied the wrong legal test and did not identify the criteria for the refusal.
The Parent Visa Centre in Perth agreed to vacate the decision and the visa application processing continued. The visa was granted in August 2020. With current appeal times, if an appeal had been lodged instead, it would have taken until at least late 2022 for the visa to granted.
A compensation claim was made to the Department to recover our legal fees. The Department accepted the error and the client was paid from the Department's compensation fund.
The Department will not vacate a decision if an AAT appeal is already lodged. This means requesting and obtaining a response within the timeframe to appeal, in case the Department refuses to vacate the decision and the client is forced to appeal.
Case 3. A Senior Migration Officer at the Australian Embassy in Amman refused to grant an offshore refugee visa in January 2020.
The Officer's natural justice letter failed to meet the requirements of s.57(2) of the Migration Act. Further, the Officer made a factual finding based on something that did not exist.
After consulting the Legal Branch in Canberra, the Principal Migration Officer at the Embassy agreed to vacate the decision and processing continued.
However, another Senior Migration Officer made a decision in January 2021 to refuse the application. Again, errors of law were made and a request was made to vacate the decision. After the matter was referred to Canberra, the "decision" was vacated, although technically no decision had ever been made. The visa processing continues with character and health assessments.
If the Department had not vacated the decisions, the only appeal option was in the Federal Circuit Court. This is an expensive and potentially lengthy process which is something to be avoided, if possible.
Visa Refusal on Character Grounds
The Department sent a Notice of Intention to Consider Refusing a protection visa application in August 2020. In preparing the response, we obtained an expert report from a forensic psychologist. Detailed submissions were made to the Department as to why the visa should be granted.
The (then) Minister for Home Affairs Peter Dutton made a personal decision to refuse the visa application. The applicant lodged an appeal with the Federal Court. On 5 August 2021, Justice Griffith handed down his judgment in which he found the Minister had failed to properly consider the expert report, and failed to refer to key aspects of our detailed submissions. He found there were "significant deficiencies and omissions" in the Minister's reasons. The Minister's decision was quashed, which meant it was overturned and, in effect, had never been made.
This demonstrates the importance of providing evidence and submissions when the merits are being assessed, in case a Court appeal is required to overcome an injustice.
Never give up on Ministerial cases
A client who had been here 23 years without a visa had come to the end of her options and the next step from the Department was to request evidence she was leaving the country.
We lodged a request to the Minister asking that he grant a visa under his Migration Act 1958 powers. The request was screened out after 3 weeks by an officer in the Department and never got near the Minister.
A new request for this elderly lady was made in August 2018, but this time with the support of their family's then State MP for Goulburn, the Hon Pru Goward (she and her staff were great), and another senior public figure who understood the case and was willing to help.
Obtaining the assistance of The Hon Pru Goward and other senior public figures, they brought the case to the attention of the Minister. The Minister intervened to grant a visa in December 2018, which allowed the elderly lady continue to live here with her children and grandchildren.
Sabean Mandaeans from Iraq in Jordan, Syria and Turkey
Between November 2015 and June 2016, Principal Lawyer Simon Jeans spent several months in New Zarqa, Jordan and lodged offshore refugee visa applications at the Australian Embassy in Amman. It was during the start of the government's special visa programme for 12,000 Iraqis and Syrians. All the cases were scheduled for an interview. Some arrived here after 3 months, while a few are still waiting for an interview or visa grant.
Almost all the cases were Sabean Mandaeans, a non-Islamic minority in Iraq who have been the victims of a genocide since March 2003. Only a few thousand remain in Iraq, down from about 70,000 in 2003. The leaders in Iraq claim there are 10,000 left, although that is more recently reported as closer to 2,000 to 3,000.
In early 2018, Simon Jeans prepared a submission to the Department of Foreign Affairs in relation to their Country Information Report on Iraq, published in June 2017. Their Report contained many inaccuracies, failed to acknowledge the genocide since March 2003 and painted over the human rights abuses facing the community. In April 2018, he attended meetings in Canberra, along with the President of the Sabean Mandaean Association in Australia Inc, including with an advisor to the Foreign Minister. Their latest Report, published in August 2020, has rewritten the information and is now an accurate reflection of the human rights problems facing the Sabean Mandaeans.
The largest concentration of Sabeans Mandaeans in the world is now in Sydney, estimated at 12,000. They are located around Liverpool because they need to be close to flowing rivers (Nepean and Georges) for baptism ceremonies.
Federal Circuit Court win
A client wanted to apply for an onshore spouse visa but was stopped by a 'No Further Stay" 8503 condition from their first visa. They asked the Department to waive the condition to allow the spouse visa application to be lodged. The client had been a victim of crime with an assessed "whole person impairment" of 37%. Plus a few other things which were all compelling and compassionate.
The Department said "No". Three times.
An appeal to the Federal Circuit Court was successful in January 2019. The decision was riddled with legal errors and could not be defended by the Minister's solicitors. They conceded and had to pay over $3,500 in costs. The case was sent back to the Department and this time, after 6 months of deliberating, they got it right.
Former permanent residents
Case 1: A client who had previously held a permanent visa which had expired, was in Australia on a visitor visa. He had been preparing to lodge a spouse visa application, with an application fee of over $7,000 and taking 3-4 years to finalise.
We established that as a former resident, he met the criteria for a resident return visa, which is a permanent residence visa.
We lodged the application and he was granted the permanent visa after 6 weeks, saving him thousands of dollars and years of processing had he lodged the spouse visa application.
Case 2: An Iranian woman's permanent visa had lapsed, but she thought it was still valid because of wrong advice from a registered migration agent. They had told her that her resident return visa lasted 5 years, but it was only 1 year. Thinking she had a 5-year visa, she travelled overseas for more than 1 year. When she went to board a plane at Kuala Lumpur for Sydney, she was refused permission because she did not hold a visa. We obtained a new resident return visa for her within 4 weeks and she returned to Australia.
What is Residence?
A student visa applicant completed the form and was faced with the question, "Where are your close relatives' usual country of residence?" They were citizens of one country but temporarily living in another country. The queston was answered as their country of citizenship.
The overseas post sent an adverse s.57 letter, alleging this information was incorrect and threatened to refuse the visa application because the alleged "incorrect answers" may cast doubt on their credibility.
We made detailed submissions on the meaning of "residence" in the Migration Act. In some circumstances, someone can be residing in one country, but "lawfully resident" in another. Many Department forms distinguish between "usual residence" and "current residence". It is not a straightforward concept. We submitted the question was ambiguous and could have been answered correctly in more than one way. One day after our submissions were lodged, the student visa was granted.
We assisted two German citizens lodge and be granted Subclass 417 Working Holiday visas. They were interested in obtaining the 2nd visa, which requires 3 months' work in a regional or bushfire affected area. What is "regional area", "bushfire affected area", "bushfire recovery work" and the other types of work are set out in Migration (LIN 20/103: Subclass 417 (Working Holiday) Visa—Regional Australia and Specified Work) Instrument 2020, 4 March 2020. We later assisted them to obtain second Working Holiday visas.