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So if you or anyone you know is about to lodge a visa or a citizenship application or has had a a visa or citizenship application refused please speak to one of the lawyers at our office for thorough advice on your options. AR LAW Services are Master Migration Lawyers and consequently are expert at all immigration and visa appeals to the Administrative Appeal Tribunal (AAT) and Federal or High Court Cases.

Call 03 9614 0218 or email info@arlaw.com.au to arrange a free initial 30 Minute consultation at our Melbourne office. (conditions apply)

For more go to www.arlaw.com.au

Note: this update, or any previous updates on this page, do not constitute legal advice and should not be relied upon as such. Please call our office to seek professional advice before acting or relying on any of the content on this page

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The case was about a review of an application for a student visa. As noted by MikeArch the application was refused for adequacy of funds to meet living and tuition costs.

What happened in this case was that there was an exchange during the hearing between the applicant and the Tribunal member concerning the bank statements that the applicant sought to rely upon to demonstrate to the member that he did in fact satisfy requirements concerning the adequacy of funds. After the hearing, the applicant sent a copy of a further bank statement to the Tribunal.  On receiving this second bank statement, the Tribunal member issued a decision in which he stated that:

“The applicant’s response (concerning whether he satisfied financial capacity requirements) has been to submit a bank statement without comment. There is no apparent evidence from that statement or any other source that the Applicant had access to those funds or that he now has access to funds for the purposes of undertaking further study. The Tribunal has formed the view that the Applicant has had sufficient time and opportunity to provide the evidence required from him regarding his ability to satisfy the financial requirements and it finds that he has not provided sufficient evidence to indicate that he does satisfy those requirements.”

What happened:

The first indication, as reflected in Justice Neville’s judgment, was that the Tribunal’s decision was “very short”.  Justice Neville observed that the Tribunal’s decision ran to only 18 paragraphs.  His Honour stated that:

“In such short compass, it is difficult to see how the Tribunal carried out its statutory function to weigh evidence and give due consideration to it against the claims made by the Applicant”.

Here,  His Honor concluded that the Tribunal did not “weigh” the evidence that the applicant had given at the hearing concerning his bank statement, or the evidence of the second bank statement that was provided following the hearing. It was Justice Neville’s finding that what the Tribunal had done was to simply reject the second bank statement that was provided after the hearing as a “document provided without comment” and that it then declared that the applicant had had a sufficient opportunity to submit the financial information.  Justice Neville described the Tribunal’s assessment as being merely a “blanket dismissal” of the financial information that the applicant had sought to provide, and that there had been no “weighing” process at all by the Tribunal.

So if the Tribunal gives a very short determination, and doesn’t seem to show that it has gone through a process of carefully “weighing” or evaluating the applicant’s claims, then that may be at least a starting point for considering that the Tribunal has not carried out a proper review, and that maybe grounds to consider taking the case to the Federal Circuit Court.

If you or anyone you know has had a visa refused or an AAT Appeal rejected particularly a student visa matter please speak to one of the lawyers at our office for thorough advice on your options.

Call   03 9614 0218 or email         info@arlaw.com.au

to arrange a free initial 30 Minute consultation for general advice at our Melbourne office.

For more go to www.arlaw.com.au
Note: this update, or any previous updates on this page, do not constitute legal advice and should not be relied upon as such. Please call our office to seek professional advice before acting or relying on any of the content on this page

The post Appeal Failed? Read this: Fed Court decision; Short not so sweet! appeared first on Australian Immigration Lawyers Migration Agents in Melbourne.

Very Important case for Partner visas particularly.

If you or any one you know has applied for or is thinking of applying for or has had a Partner/Spouse visa refused because you were unlawful or did not hold a substantive visa – or were subject to schedule III talk to AR LAW Services and how this Federal Court case may apply to you.

IF YOUR PARTNER VISA HAS BEEN REJECTED EVEN BY THE AAT – call AR LAW Service TODAY for an Appointment – call 96140218 or email  info@arlaw.com.au

Waensila v Minister for Immigration and Border Protection (2016) FCAFC 32 (11 March 2016)

The Full Court unanimously held that there is no “temporal” limitation on when the compelling circumstances relied on for a Schedule 3 “waiver” must have existed.

The Court held that the proper interpretation of Subclause 820.211(2)(d)(ii) is that compelling circumstances can be considered without regard to when they occurred.

Therefore, the Department and the Tribunal are not confined to considering compelling circumstances that existed at the time that the application was made. Circumstances that have arisen after the application was made can and must be taken into account.

The Full Court held that the Tribunal had committed jurisdictional error by construing subclause 820.211(2)(d)(ii) to mean that the only matters that could be considered as compelling reasons for not applying Schedule 3 had to be in existence at the time of the lodging of the partner visa application.

Held by Judge Robertson’s view that since the purpose of the Minister’s having discretion not to apply (or to “waive”) Schedule 3 was to give the Minister “greater flexibility if and when compelling circumstances arise and, for example, to avoid hardship to the visa applicant”, it would be inconsistent with that purpose to adopt an interpretation that would limit the circumstances that could be taken into account “to circumstances existing at some past point”.

It was Judge Dowsett’s view that the circumstances which can be relied upon to justify the exercise the discretion not to apply Schedule 3 should not be limited in the absence of “statutory or regulatory requirements”. And neither subclause 820.211(2)(d)(ii) include any requirements which restrict the matters which may be considered as “compelling” only to those which are in existence at the time that the partner visa application is lodged.

The reasons given by Judge Griffiths were as follows:

The power to dispense with, or “to waive”, Schedule 3 requirements, is not itself a “criterion” of Part 820 to Schedule 2 of the Regulations. Therefore, in His Honour’s view, the heading that appears at clause 820.21 that reads: “Criteria to be satisfied at time of application” does not have the effect of confining the decision-maker’s consideration of whether there are compelling circumstances only to matters which are in existence at the time of the application;

The “waiver power” in subclause 8320.211(2)(d)(ii) is expressed in terms that the Minister “is satisfied that there are compelling reasons for not applying” Schedule 3, and that this language implies that the waiver power would be exercised at the “time of decision” as to whether to grant a visa, and thus the matters to be taken into account should extend to matters in existence not just at the time of application, but also at the time of decision;

Since the “waiver power” was intended to alleviate hardship, it was necessary that there be clear words in the text of the legislation and regulations confining the matters that could be considered – and since no such language exists, it is not appropriate to interpret the regulations as limiting the reasons that can be considered to those that exist at the time of application;

The Explanatory Statement to the amendments that introduced clause 820.211(2(d)(ii) do not contain anything which says that the circumstances which are relied on as the basis for seeking a “waiver” of Schedule 3 must exist at the time of the application.

If you or anyone you know has had a partner visa refused either by the department or by the AAT – even if you are now before the Minister – please speak to one of the lawyers at our office for thorough advice on your options.

Call 03 9614 0218 or email info@arlaw.com.au to arrange a free initial 30 Minute consultation at our Melbourne office.

For more go to www.arlaw.com.au
Note: this update, or any previous updates on this page, do not constitute legal advice and should not be relied upon as such. Please call our office to seek professional advice before acting or relying on any of the content on this page

The post Good News for unlawful visa applicants in love: Schedule III Waensila v Minister for Immigration and Border Protection (2016) FCAFC 32 (11 March 2016) appeared first on Australian Immigration Lawyers Migration Agents in Melbourne.

Two rulings by Judge Street, who is from one of Australia’s most famous legal families, have been subject to appeals and in the Full Federal Court, which has criticized him, the ABC reported yesterday.

Applicants have presented statistics to show that migration decisions had virtually no chance of success within the six month period this year.  Of 254 rulings, the statistics showed that 252 appeals were rejected, ruling in favour of the immigration minister on nearly every case.

Judge Street has already been the subject of such criticism when two appeals against his decisions denying litigant procedural fairness were successful.

The Street family has produced three NSW chief justices, Judge Street’s father, Sir Laurence Street, served as chief justice between 1974 and 1988.

According to the ABC, Judge Streets appointment into the Federal Circuit Court judiciary attracted media attention when it was revealed that he faced possible bankruptcy and was in hundreds of thousands of dollars in debt.

The eight judges on the Federal Circuit Court in Sydney delivered 357 cases between them from January to June this year, while Judge Street delivered 286 cases himself, within the same period.

If you or anyone you know has had a visa refused or cancelled you should talk to AR LAW Services.

AR LAW Services: Masters of Migration & Visa Law is expert in all visa applications and visa appeals, whether it is an appeal to the AAT, the MRT, the RRT or Federal or High Court call AR LAW Services on 03 96140218 or email  info@arlaw.com.au to arrange a Free initial 30 Minute consultation at our Melbourne office to discuss you visa or visa appeal options.

See our web page for more  http://www.arlaw.com.au/australian-migration-visa-services/australian-visa-appeals/

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