AAT Bulletin Issue # 15 – 15 April 2019

The latest AAT Bulletin contains references to several citizenship & migration review decisions

The latest AAT Bulletin contains references to the following citizenship and migration review decisions:

Citizenship

Ahmadzai and Minister for Home Affairs (Citizenship) [2019] AATA 669 (11 April 2019); Senior Member K Raif

CITIZENSHIP – refusal to grant Australian Citizenship by conferral – applicant has limited understanding of English language – section 21(3) of Australian Citizenship Act – whether applicant had permanent or enduring physical or mental incapacity – whether not capable of understanding the nature of the application – whether not capable of demonstrating a basic knowledge of English –whether no capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of citizenship – decision affirmed

Hameed and Minister for Home Affairs (Citizenship) [2019] AATA 675 (11 February 2019); R West, Member

CITIZENSHIP – Application for citizenship by descent – review of refusal decision – whether the applicant had an Australian citizen parent at time of birth – not biological parents – extendedmeaning of ‘parent’ – test not satisfied – decision affirmed

Kivalu and Minister for Home Affairs (Citizenship) [2018] AATA 5156 (17 August 2018); Deputy President I Hanger AM QC

AUSTRALIAN CITIZENSHIP – adoptive mother – cultural adoption – birth certificate – Bridging Visa E – legal adoption – biological parent – ordinary meaning of the word “parent” – parent’s conductbefore and at the time of birth

Wang and Minister for Home Affairs (Citizenship) [2019] AATA 665 (5 April 2019); Senior Member C Puplick AM

CITIZENSHIP – application for Australian citizenship – citizenship by conferral – character requirement – decision under review set aside

Migration

Di Stefano and Minister for Home Affairs (Migration) [2019] AATA 677 (12 April 2019); Dr M Evans, Senior Member

MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa –character test – substantial criminal record – Applicant convicted of approximately 70 offences over a 30 year period – Direction no. 79 – primary and other considerations – protection of the Australian community – nature and seriousness of criminal offending – risk to the Australian community –expectations of the Australian community – strength, nature and duration of ties to Australia –Applicant has resided in Australia for approximately 38 years – extent of impediments if returned to Italy – reviewable decision affirmed

DMSB and Minister for Home Affairs (Migration) [2019] AATA 679 (15 March 2019); K Parker, Member

MIGRATION – application for review of decision to refuse protection visa on character grounds –Sudanese citizen – previous finding that Australia owes protection obligations to applicant – applicant lawfully present in Australia for last 20 years on successive bridging visas awaiting processing of visa application – applicant committed drug-related and other offences – applicant diagnosed with psychological condition – effects of drug addiction – applicant does not pass character test – whether discretion should be exercised to refuse visa application under s 501(1) of the Migration Act 1958 (Cth) – expectations of Australian community – protection of Australian community – likelihood of relapse and reoffending – nature of harm – existence of protective factors that did not exist previously – reliance upon expert evidence by psychiatrist – decision set aside

GZCK and Minister for Home Affairs (Migration) [2019] AATA 656 (5 April 2019); Mr A Maryniak QC, Member

Migration – protection visa – refugee – whether the Applicant committed war crimes – whether the Applicant was a member of the LTTE – whether witness is credible – whether witness is reliable –misleading government officials – international law – Sri Lanka – Refugee Convention – Rome Statute – decision affirmed

Lumanovski and Minister for Home Affairs (Migration) [2019] AATA 681 (13 February 2019); Ms A Burke AO, Member

MIGRATION – visa refusal – applicant is a citizen of the Former Yugoslav Republic of Macedonia (FYROM) – applicant applied for a Bridging visa – applicant does not pass character test in s 501(6) of the Migration Act 1958 – applicant not of good character on account of criminal conduct – whether discretion to refuse visa should be exercised – applicant does not present unacceptable risk of re- offending – impact on family and business interest – decision under review set

Ma’afu and Minister for Home Affairs (Migration) [2019] AATA 684 (9 April 2019); Senior Member T Tavoularis

MIGRATION – REVOCATION OF MANDATORY CANCELLATION OF VISA ON CHARACTER GROUNDS – expedited matter – applicant failed to pass the character test – sentenced to 12months’ imprisonment or more – whether there is any other reason to revoke the mandatorycancellation of the Applicant’s visa – considerations in Direction 79 – decision under review set aside and substituted

PKBV and Minister for Home Affairs (Migration) [2019] AATA 683 (9 April 2019); Deputy President The Hon. Dennis Cowdroy OAM QC

MIGRATION – mandatory cancellation of visa – failure to pass character test – criminal record –whether the discretion to revoke the cancellation should be exercised – Direction No. 79 – primary considerations – protection of the Australian community from criminal or other serious conduct –nature and seriousness of conduct – risk to the Australian community – best interests of minor children – expectations of the Australian community – other considerations – decision affirmed


Disclaimer: the above is a mere reproduction of a bulletin. The views there expressed might not reflect the views of the Department, the AAT or the courts. The law or policies might have changed between the writing and reading of this article. The author of this article and Migration Law Updates disclaim any liability for any action (or omission) on their part based on any information provided (or not provided) in this article and are under no obligation to keep the general public nor practitioners informed about the matters discussed in this article or any other matters, or any future changes to any of those matters. It is the responsibility of each practitioner to obtain access to primary sources of law and policy by themselves and to carry out their own research and come to their own conclusions on legislation, case law, policies and more. This article is not intended for the general public.


Sergio Zanotti Stagliorio is a Registered Migration Agent (MARN 1461003). He is the owner of Target Migration in Sydney. He can be reached at sergio@targetmigration.com.au