AAT Bulletin Issue # 46 – 26 Nov 2018

Citizenship

PXLS and Minister for Home Affairs (Citizenship) [2018] AATA 4272 (15 November 2018); Dr L Bygrave, Member

CITIZENSHIP – refusal of citizenship – general eligibility – applicant spent significant periods outside Australia – whether applicant is likely to reside or continue to reside in Australia – serious intention to reside in Australia – whether applicant maintain a close and continuing association with Australia – association supported by wide range of documents – Department timeframe for processing application not within scope of Tribunal’s review – decision set aside and remitted

Vidal-Fernandez and Minister for Home Affairs (Citizenship) [2018] AATA 4355 (22 November 2018); Senior Member A Younes

CITIZENSHIP – eligibility – citizenship by conferral – residence requirement not satisfied – overseas absence from Australia greater than 12 months – whether applicant meets the special residence requirement – whether applicant meets the definition of a scientist as contemplated by the legislative instrument IMMI 13/056 – whether applicant engaged in particular kinds of work requiring regular travel outside Australia – decision under review affirmed

Migration

1827501 (Migration) [2018] AATA 4309 (30 September 2018); R Gagliardi, Member

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – multiple visa applications – unlawful status – migrant agent’s advice – awareness of visa status – fear of harm in home country – assistance from family overseas – paid nominal sum for labour – wife’s employment – living in a fixed address – financial support by wife – migrant agent’s offer of security – applicant’s sense of loyalty towards the agent – decision under review affirmed

Barber and Minister for Home Affairs (Migration) [2018] AATA 4304 (20 November 2018); Senior Member Antoinette Younes

MIGRATION – decision not to revoke section 501 visa cancellation – absorbed person visa – failure to pass character test – whether another reason why original decision should be revoked – Ministerial Direction No. 65 applied – protection of the Australian community – nature and seriousness of the conduct – long history of serious and repeated offending – risk to the Australian community – best interests of minor children in Australia – expectations of the Australian community – other considerations – strength, nature and duration of ties to Australia – impact on victims – extent of impediments if removed – decision not to revoke the cancellation of the applicant’s absorbed person visa affirmed

CHAU (Migration) [2018] AATA 4131 (12 September 2018); P Hunter, Member

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – enrolled in similar English courses numerous times – no evidence of successful completion of courses – decided to undertake additional studies as a means to maintain ongoing residency – evasive answers to Tribunal questions – unable to answer about course – breach of working rights on previous student visa – vague answers about employment in Australia – decision under review affirmed

FYBR and Minister for Home Affairs (Migration) [2018] AATA 4281 (5 November 2018); Mrs JC Kelly, Senior Member

Migration – refuse to grant Safe Haven Enterprise visa (SHEV) under s 501(1) – whether Applicant failed to pass s 501(6)(e) character test – convicted of a sexually based offence involving a child – whether to exercise discretion to refuse to grant the SHEV – primary considerations – protection of the Australian community – nature and seriousness of the conduct – risk to the Australian community – expectations of the Australian community – other considerations – international non-refoulement obligations – indefinite detention – decision affirmed

General Real Estate Investment (Australia) Pty Ltd (Migration) [2018] AATA 4321 (5 October 2018); S Norman, Member

MIGRATION – Employer Nomination – approval of nomination – capacity to pay full time position – parent company’s financial support – losses by nominating business – downturn in Australian property market – owing interest and loans – decision under review affirmed

GWSC and Minister for Home Affairs (Migration) [2018] AATA 4353 (22 November 2018); Senior Member D J Morris

MIGRATION – mandatory cancellation of visa – serious drug offences – further offending while on bail – applicant has substantial criminal record and does not pass character test – whether discretion to revoke mandatory cancellation should be exercised – consideration of Ministerial Direction – primary considerations – other considerations – any other reason – decision under review affirmed

Haque and Minister for Home Affairs (Migration) [2018] AATA 4305 (21 November 2018); Senior Member C Puplick AM

MIGRATION – visa refusal – character test – criminal record – dishonestly obtain financial advantage by deception – primary and other considerations under Ministerial Direction No. 65 – protection of the Australian community – best interests of minor children in Australia – expectations of the Australian community – other considerations – Impact on family – set aside and remitted

Lee (Migration) [2018] AATA 4197 (13 September 2018); S Lee, Member

MIGRATION – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – internationally recognised record of achievement – clarinet – voluminous record of achievements – emerging talent – achievements in international competition – contribution to the church – letter of recommendation – current employment – decision under review remitted

Patel and Migration Agents Registration Authority (Migration) [2018] AATA 4277 (16 November 2018); Senior Member M Griffin QC

MIGRATION – suspension of registration as a migration agent – whether the agent is a person of integrity – whether the agent is a fit and proper person to provide immigration assistance – whether the agent is honest – whether the agent has the knowledge of the migration scheme and the ability to fulfil the position of a migration agent – whether the agent dealt with his or her client competently, diligently and fairly – whether agent took all reasonable steps to maintain the reputation and integrity of the migration advice profession – decision affirmed

Singh and Minister for Home Affairs (Migration) [2018] AATA 4302 (20 November 2018); Senior Member C Puplick AM

MIGRATION – revocation of visa cancellation – Ministerial Direction No. 65 applied – primary considerations considered – protection of the Australian community – best interests of minor children – expectations of the Australian community – other considerations – strength, nature and duration of ties – impact on victims – extent of impediments if removed – decision under review affirmed

Singh (Migration) [2018] AATA 4322 (18 September 2018); K Synon, Member
MIGRATION – Student (Temporary) (Class TU) visa – Sublcass 572 – Genuine temporary entrant – 8 years in Australia – Unsatisfactory course progress and study achievement – Decision under review affirmed

Te Hau and Minister for Immigration and Border Protection (Migration) [2018] AATA 4283 (16 November 2018); Senior Member T Tavoularis

MIGRATION – non-revocation of mandatory visa cancellation decision – non-expedited matter – where Applicant is a New Zealand citizen – where Applicant’s visa cancelled under s 501(3A) because Applicant did not pass character test – whether there is a reason discretion in s 501CA to revoke mandatory visa cancellation should be exercised – considerations in Direction No 65 – risk of re-offending – risk of harm to Australian community – minor children – expectations of the Australian community – ties to Australia – extent of impediments if removed – decision under review

XCHQ and Minister for Home Affairs (Migration) [2018] AATA 4280 (19 November 2018); Senior Member L Kirk

MIGRATION – mandatory cancellation of visa – substantial criminal record – discretion to revoke cancellation of visa – whether there is another reason why the mandatory cancellation should be revoked – Ministerial Direction No. 65 – protection of the Australian community – nature and seriousness of conduct – possession of prohibited drug – possession of unauthorised firearm – assault – driving offences – resist officer in execution of duty – offences in prison – risk to the Australian community should conduct be repeated – best interests of minor children – expectations of the Australian community – strength, nature and duration of ties to Australia – extent of impediments if removed from Australia – decision set aside