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26 January 2017

Immigration - Whats News - 17 January 2017

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Holding Redlich

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Holding Redlich, a national commercial law firm with offices in Melbourne, Canberra, Sydney, Brisbane, and Cairns, delivers tailored solutions with expert legal thinking and industry knowledge, prioritizing client partnerships.
The newsletter includes summaries and links to recent cases relating to visa applications and immigration into Australia.
Australia Immigration

Cases

Salama v Minister for Immigration and Border Protection [2017] FCA 2
MIGRATION – cancellation of visa under s 109 of the Migration Act 1958 (Cth) – online visa application form - where appellant answered "divorced" to question as to relationship status - whether Tribunal erred in considering whether the appellant's answer was "incorrect" within the meaning of s 101 – whether answer of "married" on online visa application form refers to marriage legally recognised under Australian law – where Tribunal made findings as to what was the most correct answer but no finding as to whether the answer was "incorrect" – where finding that answer was "at least misleading" or technically correct does not equate to finding it is incorrect - appeal allowed.

Singh v Minister for Immigration & Anor [2016] FCCA 3343
MIGRATION – Judicial review of decision of Migration Review Tribunal (Tribunal) not to grant the applicant Skilled (Residence) (Class VB) Subclass 885 visa (885 visa) – whether Tribunal failed to consider medical certificates and applicant's medical condition when determining whether to grant applicant time to take a further IELTS test – whether the Tribunal acted unreasonably in deciding not to give the applicant further time to take another IELTS test – whether information the Tribunal obtained from a third party the substance of which the Tribunal disclosed to the applicant was information to which s.359A of the Migration Act 1958 (Cth) applied – whether in finding the applicant had not been honest with the Tribunal and relying on that finding not to give the applicant further time to take another IELTS test the Tribunal was obliged to give the applicant notice of the possibility that it might make such finding – whether by failing to give such notice the Tribunal made a jurisdictional error – jurisdictional error found.

Oh and Minister for Immigration and Border Protection (Migration) [2016] AATA 1079
IMMIGRATION AND CITIZENSHIP – visa refusal – application for partner visa – failure to pass character test – discretion to refuse visa on character grounds – undisclosed criminal record upon re-entry into Australia – protection of the Australian community – evidence of rehabilitation – low risk of reoffending – expectations of Australian community – best interests of minor children – impact on applicant's family – expert evidence of negative impact of family separation – decision set aside and substituted. Migration Act 1958 (Cth), s 501(1).

Allan and Minister for Immigration and Border Protection (Migration) [2016] AATA 1077
IMMIGRATION AND CITIZENSHIP – mandatory cancellation of visa – request for revocation of cancellation – character test – substantial criminal record – drug and alcohol abuse – Ministerial Direction No. 65 applied – whether another reason why original decision should be revoked – primary and other considerations – prospects of rehabilitation – best interests of child – employment prospects – decision under review set aside. Migration Act 1958, ss 499(2A), 501(3A), 501(6), 501(7), 501CA(3), 501CA(4).

Yao & Ors v Minister for Immigration & Anor [2016] FCCA 3164
MIGRATION – Application for Business Skills (Residence) (Class DF) subclass 890 visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred in determining what is a "net asset" for the purpose of assessing the applicants satisfying cl.890.212 in sch.2 to the Migration Regulations 1994 (Cth) – whether the Tribunal miscalculated the applicants loan to the business as a liability – jurisdictional error – writs issued. Migration Act 1958 (Cth), s.134; Migration Regulations 1994 (Cth), regs.1.03, 1.11, item 1104B(4) of sch.1, cll.890.211, 890.212.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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