Have you applied for a Partner visa? Are you a victim of domestic violence?

Have you applied for a Partner visa? Are you a victim of domestic violence?

Is your sponsor committing that domestic violence?

Please know that leaving your relationship because of the domestic violence does not jeopardize your visa. The Australian Government does not expect you to stay in your relationship when there is domestic violence involved.

Thankfully, this situation has been anticipated in the law. It is true that normally, you have to continue to be sponsored by your partner (your spouse or de facto partner). However, this requirement has three exceptions. One of these exceptions is when the sponsoring partner perpetrates family violence against the visa applicant. This means that if your sponsor is committing family violence against you, you do not have to retain their sponsorship in order to get a partner visa.

How does this work?

The first thing that the government needs to know is that you were the spouse or de facto partner of the sponsor before the relationship ceased. The evidence needed to make this out is pretty much the same as the evidence that you need to prove your relationship normally. This includes evidence of the social aspects of your relationship (photos together, photos taken with groups), the financial aspects of your relationship (shared bank accounts, joint payment of bills), the nature of the commitment, the nature of the household, any relationship statements that you may have drafted at one point. 

 The second thing that the government needs to know is that you, or a dependent child of yours, suffered family violence. Family violence is not limited to physical harm – it can include other forms of abuse such as psychological or financial abuse. The family violence, which can be actual or threatened, can be against you, one of your family members, one of your sponsor’s family members, or the property of any of these people. The family violence can cause you to reasonably fear for your own safety.

What to you need to do to prove this?

You also need to provide evidence of the family violence. There are two types of evidence you can provide: ‘judicial’ evidence, and ‘non-judicial’ evidence. All this means is that you can either provide evidence that comes out of court proceedings, or that does not come out of court proceedings. A list of evidentiary requirements can be found here.

Conclusion

If you are suffering violence at the hands of the person sponsoring your partner visa, you don’t need to stay in that abusive relationship. You can leave the relationship and avoid having your visa cancelled, if you can prove the existence of your relationship and the family violence.

This can be an extremely difficult time, so if you need help then you should seek it out. If you are experiencing domestic violence, then you can talk to the police or a court about getting a protection order. There are also a range of domestic and family violence support services in Australia. For professional counselling, you can contact the National Sexual Assault, Domestic and Family Violence Counselling Service. Their website is https://www.1800respect.org.au/, and their phone number is 1800 737 732. For legal information and assistance, you can call Family Violence Law Help. Their website is https://familyviolencelaw.gov.au/, and you can call them on 1800 737 732. If you need an interpreter, free interpreting services are provided at the Translating and Interpreting Service, whose website is https://www.tisnational.gov.au/, and whose phone number is 131 450.

 

 

Disclaimer: The contents do not constitute legal advice, and are not intended to be a substitute for legal advice and should not be relied upon as such. You should seek legal advice or other professional advice in relation to any particular matters you may have. Information is correct as at 29.11.2021 and is subject to change without notice.

Requesting an extension of time to appeal to the AAT - is this possible?

Earlier last month we provided an initial consultation to a couple who had been refused their applications for citizenship (based on identity). As their refusal letters said they had 28 days to appeal the refusal decision to the Administrative Appeals Tribunal (AAT) they sought our advice and assistance with any possible next steps as it appeared they had missed an important deadline.

During the initial consultation and upon review of their documents and consideration of the circumstances that led to them missing the AAT deadline, we advised them that they were actually able to apply for an extension of time to make an application to the AAT. They engaged our services to apply for an extension of time, and ultimately, this was consented to by the Minister’s solicitors. We are pleased to say that they have current matters before the AAT and we are representing them in their appeal applications. Had they not booked in for that initial consultation, it is likely that they would have been none the wiser of their rights to appeal.

In saying that, an extension of time to appeal is not available for all types of applications to the AAT, and even when it is an option, it isn’t always guaranteed. Keep reading for further information and clarification….

Appealing to the AAT

When the government makes a decision, for example, to refuse to grant a visa or to cancel a visa, the decision can usually be appealed to the Administrative Appeals Tribunal (AAT). What this means is that the AAT is allowed to remake the decision. However, the AAT is only allowed to remake the decision if an application is made within a certain time frame.  Most of the time, if an application for review is made to the AAT outside the time frame, the AAT is not legally allowed to remake the decision. This limits your options to change the government’s decision.

However, there are some circumstances in which the AAT can extend the time limit. It varies according to the type of immigration decision.

This table summarizes what your options are in relation to extending time deadlines. Generally, it is very important to lodge your applications within the required time frames. There is no guarantee that an application for an extension will be granted.

Migration Decision

If the Minister’s decision is a ‘migration’ decision, the time limits are very strict. A ‘migration’ decision is a decision to refuse or cancel a visa, a refusal to approve a nomination of an occupation, activity or position, a decision to bar, refuse to approve or cancel the approval of a sponsor, or a decision relating to a security.

The time limit to apply to the AAT differs on the type of decision, and whether you are in immigration detention. In the decision letter, which you should have received, the time limit for review is explicitly stated.

The AAT has no power to extend the time limit here. The time limit starts to run when you are taken to have received notice of the decision (generally when the letter was delivered). If the time limit expires, the AAT has no legal ability to review the decision.

Refugee Decisions

If the Minister’s decision relates to refugees, the time limits for review are also very strict. Refugee matters include decisions to refuse or cancel protection visas, decisions that a protection finding would no longer be made about a person,

The time limits for these decisions are very tight. If you are not in immigration detention, the deadline is 28 days. If you are in immigration detention, the time limit is 7 working days. The clock starts to run on the day you are taken to have received notice of the decision, if you are not in immigration detention. If you are in immigration detention, the clock start to run on the first working day you are taken to have received notice of the decision (so if you receive the decision on a Saturday, the clock starts to run on the Monday).

If the time limit expires, there is nothing the AAT can do. They have no power to extend the time limit.

Character-Related Decisions

Sometimes, visas are cancelled because of ‘character concerns.’ That means that the Minister has decided that you don’t pass the ‘character test.’ This allows the Minister to refuse or cancel any type of visa under s 501 (for more information on s501, see our upcoming s501 Information Kit). The Minister might refuse to undo a mandatory cancellation on the basis that you fail the character test. The Minister might also refuse a protection visa on character grounds. They might also cancel a business visa under s134. All of these types of decisions are reviewable by the AAT.

If you are in Australia, and the Minister has made a decision to refuse or cancel your visa under s501, or has made a decision to not revoke a mandatory cancellation under s501CA, there is a very tight time limit for review. The clock begins to run the day after you receive notice of the decision, and is 9 days long. The AAT has no power to extend this time limit – if the application for review is not lodged within this time, then there is no route for the AAT to appeal the matter.

Things are slightly more lenient if you are not in Australia. If you are outside Australia when the Minister makes a decision to refuse or cancel your visa under s501, or has made a decision to not revoke a mandatory cancellation under s501CA, then the time limit is 28 days after receiving notification of the decision. If the time limit expires, you can apply to have it extended!

For decisions to refuse a protection visa on character grounds other than s501, or for decisions to cancel a business visa under s134, the time limit is 28 days after receiving notification of the decision. Once again, if the time limit expires, you can apply to have it extended.

Citizenship Decisions

If the government has made a decision to refuse to approve a person becoming an Australian citizen, then this is usually reviewable by the AAT. It depends on the specific section of the Australian Citizenship Act 2007 that the government relied upon to refuse the citizenship application. Your decision letter should tell you whether you can apply to the AAT.

The AAT can review your decision if you apply within 28 days after you receive the decision from the Department of Home Affairs. However, if you miss the deadline, you can apply to the AAT to extend the time limit.

Writing to request an extension of time

When requesting an extension of the time limit, the reasons for why the application is late must be included. You can make the request for the extension in several ways. You can make the request when you make your application for review online, or you can fill in an ‘application for extension of time’ form when you send your ‘application for review of decision’ form in on paper, or you can write an email or letter.

The AAT then sends the application for an extension of time to the relevant government department, who can either agree to it or choose to contest it. If they choose to agree to it, then generally the application is granted. If they choose to contest the application, the AAT holds a hearing before determining whether to approve the application for an extension of time.

Conclusion

If you have missed a deadline to apply for review to the AAT, and after reading this blog feel that you may be able to request an extension of time, we would encourage you to seek legal advice as you may still have review rights despite missing the deadline set out in your refusal or cancellation letter.

 Disclaimer: The contents do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. You should seek legal advice or other professional advice in relation to any particular matters you may have. Information is correct as at 15.11.2021 and subject to change without notice.

Success at the AAT:  identity for the purposes of s 24(3) of the Australian Citizenship Act 2007 (Cth)

Ahmad v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Samuta McComber Lawyers represented the Applicant in these proceedings, which resulted in a successful outcome for the Applicant. The Tribunal was satisfied of the Applicant’s identity for the purposes of s 24(3) of the Australian Citizenship Act 2007 (Cth). The matter is remitted to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, for reconsideration. 

The matter before the Tribunal concerned a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, refusing an application for citizenship. This refusal was made on the grounds that the delegate was not satisfied of the Applicant’s identity, due to inconsistencies in their application materials.

The Tribunal relied upon government policy in making their decision, notably the three pillars of identity described in the Citizenship Procedural Instruction 16 – Assessing Identity Under the Citizenship Act. These are biometrics, documents, and life story. Both parties agreed that biometrics were difficult to source given the current context of the applicant’s refugee status. The primary issues thus fell on the unexplained absence of documents, and inconsistencies in the applicant’s declared life story.

Regarding documents, the only document tendered by the applicant in their application was their birth certificate. Other documents the Tribunal considered prudent included a previous passport, and corroborative statements from any of the family members mentioned in the Applicant’s life story. Particularly relevant was the Applicant’s failure to satisfactorily explain the absence of these documents. The Tribunal stressed its typical view that it is insufficient for an Applicant to simply state they were unable to obtain such documents – they must display a bona fide effort to do so. In this instance, the Applicant was saved only by their birth certificate and independently prepared documents from the United Nations, such as their UNHCR Resettlement Registration Form.

Inconsistencies in the applicant’s life story included their descriptions of various life events and dates. The Tribunal was lenient regarding dates inconsistent by a factor of several months in the applicant’s history of travel into Australia, given the Applicant was young and travelling unassisted.

Despite the application’s shortcomings canvassed above, the Tribunal ultimately decided to set aside the Minister’s refusal decision. The Tribunal found that the Applicant’s explanations towards inconsistencies in their life story were sufficiently credible, and the inconsistencies themselves not significant enough to separate them from the person described by the birth certificate. Though there were inconsistencies, the inconsistencies did not concern “most critical elements of [their] personal background” such as place and country of birth.[1]

The mater has been remitted to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, for reconsideration. 

 

Disclaimer: The contents do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. You should seek legal advice or other professional advice in relation to any particular matters you may have. Information is correct as at 01.09.2021 and subject to change without notice.


[1] CDNB and Minister for Immigration and Border Protection [2018] AATA 757 [99].

Immigration detention, at all costs?

Last Friday one of our clients was released from Christmas Island Detention Centre after having his visa cancelled under s501(3A) of the Migration Act. We were engaged for the appeal process at the AAT and were successful in having his visa reinstated. Even better, the decision to release him was made at the end of the hearing, which was a great relief as it had been a long three-day hearing, and usually matters of this type can involve a two week wait before a final decision is made.

His release from immigration detention and the long journey back to Brisbane that follows got us thinking about the costs involved in detaining a person in an immigration facility, and this is what we know.

The annual cost, per person, of detaining and/or processing refugees and asylum seekers has been estimated as follows:

• almost $3.4m to hold someone offshore in Nauru or Papua New Guinea;

• $362,000 to hold someone in detention in Australia; and

• $4,429 for an asylum seeker to live in the community on a bridging visa while their claim is processed.

Australia will spend nearly $812 MILLION on its offshore immigration processing system next year – just under $3.4m for each of the 239 people now held on Nauru or in Papua New Guinea.

On the figures presented in this year’s budget, it costs Australian taxpayers $9,305 every day for each person held offshore.

Sources:

1. https://www.kaldorcentre.unsw.edu.au/.../cost-australias...

2. https://www.theguardian.com/.../australia-will-spend...


Afghanistan - Refugee and humanitarian visa options

Samuta McComber Lawyers stands in grief and solidarity with the Afghan community. We want to do what we can, but there are huge limitations to what can be achieved. For now, we are offering advice and assistance to those enquiring directly with the firm, and volunteering assistance within the community, such as at the Afghan clinic provided by the Refugee and Immigration Legal Service.

The Australian Government has ceased its evacuation operations in Kabul and is working to ensure that visa options continue to be available to Afghan nationals, both within Afghanistan and those displaced from their home country, through Australia’s Humanitarian and Migration Programs.


The following information and assistance is available on the Department of Home Affairs website:

  • Refugee and humanitarian visa options

  • People having difficulty accessing communications to apply, can have another person apply on their behalf here.

  • People needing assistance in relation to their family members, or people within Afghanistan can contact the Australian Government 24-hour Consular Emergency Centre on +61 2 6261 3305.

The Australian Government is advising all to stay away from Kabul airport and to be very careful of their own safety and security in what is a war like condition. For updated information, see https://www.smartraveller.gov.au/destinations/asia/afghanistan.

Australian citizens, permanent residents and their immediate families can register with DFAT: https://covid19.dfat.gov.au

Disclaimer: The contents do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. You should seek legal advice or other professional advice in relation to any particular matters you may have. Information is correct as at 01.09.2021 and subject to change without notice.

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