Paul Cutler's Migration Case Law Blog
Giving of documents
The giving of documents to a visa holder which relate to the cancellation of their visa is more complex than it might seem.
Basically the options are by giving notice under section 494A (using one of the methods in s 494B) which then enliven the deeming provisions in s 494C. The other alternative is rely on regulation 2.55(3)(c) and the deeming in reg 2.55(7).
There are some subtleties in the requirements of those sections including the difference between an address “known to” and one “provided to” the Minister.
The argument that regulation 2.55 was inconsistent with 494A (and therefore invalid) failed in Minister v EVE21 [2023] FCAFC 91. However, Perram J did accept that in some circumstances (just not the current one) there would be inconsistency. There have been other cases where this inconsistency and invalidity have been argued with mixed success.
The other interesting argument in the case were about whether a prison’s PO Box is the PO Box of the prisoner? It is. There was also a brief discussion about whether a prison can be a residential address. Some of the UK cases suggest that there is an element of “voluntary” in determining someone’s residential address.
It’s always a good idea with these cases to check if the service provisions have been complied with.
Creative commons acknowledgment for the photograph.
Back to the future
A brief (recent) history of the regulation of the migration advice profession in Australia: In 1992, the Migration Amendment Act (No 3) 1992 (Cth) introduced, the Migration Agents Registration Scheme; Under that scheme, practising lawyers (who could previously give migration advice) were prohibited from doing so unless they were registered as migration agents; In 1994, two Sydney solicitors...
Personal costs
There is specific power in section 486E Migration Act, to make personal costs orders (against advisers). As Rangiah J explained in SZTMH v Minister for Immigration and Border Protection (2015) 230 FCR 550, there is a balance. On one hand there is a clear intention to "discourage persons from encouraging others to make and continue unmeritorious applications in migration cases", but on the other,...
Fraud or unreasonableness?
The cases of Minister for Home Affairs v DUA16 and Minister for Home Affairs v CHK16 [2020] HCA 46 highlight an interesting application of legal unreasonableness to what appears to be case of fraud. It was common ground that the applicants in these cases (and probably about 40 others) were the victims of fraud by their migration agent (who was also a lawyer). She didn't tell her clients that she...
Re-cancellation
Visas can be cancelled on the basis that the holder is not of good character under section 501 of the Migration Act. This usually means that the person has a "substantial criminal record". The decision to cancel is discretionary and subject to review in the AAT (usually). So what happens when: a permanent visa is cancelled after the visa holder is convicted on several sexual assault charges and...