AAT Bulletin Issue # 6 – 11 Feb 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

Jaber and Minister for Home Affairs (Citizenship) [2019] AATA 92 (6 February 2019); Dr L Bygrave, Member

CITIZENSHIP – application for Australian citizenship by conferral – number of opportunities to sit standard test – refusal to grant Australian citizenship under statute – affirmed

Syrett and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 107 (7 February 2019); Senior Member T Tavoularis

CITIZENSHIP – residency requirements – whether Applicant resided in Australia for four years prior to his application for citizenship – whether Applicant resided in Australia as a permanent resident for the 12 months prior to his application for citizenship – whether Applicant satisfies the special residence requirements for citizenship in circumstances where Applicant was required by work to fly in and out of Australia to work on a liquefied natural gas project – decision under review affirmed

TWWH and Minister for Home Affairs (Citizenship) [2018] AATA 4877 (21 December 2018); Senior Member R Cameron

CITIZENSHIP – application for Australian citizenship by descent – citizenship applicant born outside Australia – whether the citizenship applicant had an Australian citizen parent at the time of birth – meaning of parent – decision set aside and remitted for reconsideration

Migration

CZCV and Minister for Home Affairs (Migration) [2019] AATA 91 (6 February 2019); Dr M Evans, Senior Member

MIGRATION – decision of delegate of Minister to refuse application for a Class XA, Subclass 866 Protection visa – failure to pass character test – offence of sexually penetrated a child over 13 and under 16 years – Ministerial Direction no. 65 – primary and other considerations – international non- refoulement obligations – protection of the Australian community – best interests of minor children – expectations of the Australian community – Australia’s non-refoulement obligations breached if returned to Zimbabwe – whether expert is independent – content of briefing letters and documentation given to expert – weight to be given to expert report – operation of two day rule – best interests of Applicant’s nephew mentioned in closing submissions only – interpretation of Direction no. 65 – weight to be given to the primary and other considerations decision under review affirmed

JPGY and Minister for Home Affairs (Migration) [2019] AATA 86 (5 February 2019); Senior Member DJ Morris

MIGRATION – cancellation of visa – pleas of guilty – conviction for sexually based offences – consideration of character test – consideration of ministerial Direction No. 65 – primary considerations – other considerations – other relevant matters – decision under review affirmed

LQZW and Minister for Home Affairs (Migration) [2019] AATA 93 (6 February 2019); Deputy President Boyle

MIGRATION – decision not to revoke mandatory cancellation of visa – character test – substantial criminal record – Ministerial Direction no. 65 – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – best interests of minor children – expectations of the Australian community – strength, nature and duration of ties to Australia – impact on victims – extent of impediments if removed – decision under review affirmed

Muyobe and Minister for Home Affairs (Migration) [2019] AATA 108 (25 January 2019); Deputy President SA Forgie

MIGRATION – mandatory visa cancellation due to substantial criminal record – refusal to revoke mandatory cancellation – decision set aside.

PRACTICE AND PROCEDURE – section 500(6H) – limits imposed by requirement that information be previously set out in a written statement on information that may be presented orally – nature of a written statement – whether statement of facts, issues and contentions is a written statement – whether all information must be identified in written statement – whether extends to submissions made in support of applicant’s case – limits apply only to information given orally in support of applicant’s case and not to information given in response to questions on behalf of Minister or Tribunal

NFLL and Department of Home Affairs (Migration) [2019] AATA 85 (5 February 2019); Senior Member C Puplick AM

MIGRATION – BB subclass 155 Five Year Resident Return visa – mandatory cancellation – non- revocation – failure to pass the character test – Ministerial Direction No 65 – criminal convictions – reckless grievous bodily harm – protection of the Australian community – best interests of minor children – expectations of the Australian community – international non-refoulement obligations – strength, nature and duration of ties – impact on Australian business interests – impact on victims – extent of impediments if removed – decision set aside

Pohahau and Minister for Home Affairs (Migration) [2019] AATA 106 (8 February 2019); Senior Member M Griffin QC

MIGRATION – Class TY Subclass 444 Special Category (Temporary) visa – mandatory cancellation – failure to pass character test – Ministerial Direction No 65 – frequency of reoffending – cumulative effect of repeated offending – unacceptable risk of reoffending – strength, nature and duration of ties to Australia – extent of impediment if removed – best interest of minor children – decision affirmed

Zaia and Minister for Home Affairs (Migration) [2019] AATA 87 (4 February 2019); Senior Member A Poljak

MIGRATION – mandatory visa cancellation – character test – substantial criminal record – Direction No. 65 – protection of Australian community – seriousness and nature of the relevant conduct – offending very serious in nature – risk conduct may be repeated – real risk of re-offending – best interests of minor children – expectations of Australian community – decision affirmed


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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