Case Summaries

At Brett Slater Solicitors we specialise in taking on the more difficult and challenging cases.

With over twenty years of experience in the field, and with Brett Slater being one of only a handful of accredited specialist immigration lawyers in Australia with this level of experience, we have proved that we can succeed where others have failed.

Below, we describe some of the examples of the many successful appeals which we have handled. Most of the cases below have been published, and in those cases, we provide links to the full decisions.

Spouse visa: stopping a deportation

Background

This was a case in which our client had previously received poor advice from a migration agent. As a result of this poor advice our client had applied for a temporary spouse visa in the belief that she would be eligible for temporary residency within 6 months of the application being made. The application for a spouse visa was rejected by Immigration because at the time of her application the applicant had not held a substantive visa for more than 28 days and therefore did not satisfy one of the requirements for the grant of this visa. Immigration made a decision that there were no compelling reasons to approve the application.

Our involvement

We were instructed by our client and her partner to take over the conduct of her case. We submitted that there were enough ‘compelling’ circumstances in our client’s case to justify waiver of the rule requiring that she hold a substantive visa when applying for the visa.

We made successful representations that our clients would suffer many hardships including financial and emotional hardship if the applicant was forced to travel overseas to make a spouse application. As an example of the hardship that would be suffered, we tendered evidence of the couple’s continuing IVF treatment and intention to have a baby. We explained that this process would be hampered, or stopped, if the applicant was forced to return to China. The tribunal agreed with us, and accepted that to discontinue the clients’ involvement in the program by not waiving the criteria would cause severe hardship.

The tribunal found that the scope of compelling circumstances which would justify a waiver of this criterion were broader than those contemplated by the original decision maker. With our help, the applicant won her case.

You can read the published version of this case by clicking here.

 

Compassionate circumstances:  illness of uncle

Background

Our client had originally come to Australia on a visitor’s visa with an entry permit for only one month.  He came to visit his uncle who had been permanently injured in an industrial accident and who suffered from a number of medical complaints as a result.  As the uncle’s health was deteriorating he needed assistance and support to live.   Our client remained in the country living with his uncle, caring for him, but did not make an attempt to regularise his stay until three years later when he applied for a temporary entry permit.  This application was refused by Immigration and they would have removed the client from the country had the decision not been appealed.

Our involvement

In preparing our client’s appeal we conducted interviews with the relevant parties and prepared them to give evidence in court.  We also submitted an affidavit from one of our client’s relatives in his home country and several items of medical evidence.  We made detailed submissions to the appeals tribunal on the medical condition of our client’s uncle and about the assistance that he received from our client.   Despite the fact that our client had clearly violated immigration law we were able to persuade the Tribunal that if our client was forced to leave Australia it would cause “extreme hardship or irreparable prejudice” to his uncle.   As a result our client was granted a permanent visa to remain in Australia with his uncle.

You can read the published version of this case by clicking here.

 

Visa cancellation (working too many hours)

Background

In this case our client originally came to Australia as a student but as a result of a delay on the part of Immigration, and falling ill, he was not able to complete his original course.  He then applied for a further student visa which restricted his ability to work to twenty hours.  Because of financial hardship our client found himself in a position in which he had to work more than the twenty hours allowed by law.  Immigration became aware of this and cancelled his visa.

Our involvement

Our client appealed this decision and we represented him before the Migration Review Tribunal.   The Tribunal found that even though our client had violated two conditions of his visa (one of which was considered a serious violation) he was an honest witness who would not repeat his mistake.   The Tribunal set aside the cancellation of his visa and our client was able to remain in Australia in order to complete his studies.

You can read the published version of this case by clicking here.

 

Criminal conviction, illegal overstayer

In this case our client had come to Australia originally on a six month visitors visa.  He faced persecution in his home country if he were to return.  Unfortunately for our client he was not aware of the immigration applications available.  He stayed illegally in Australia for several years after the expiration of his visitors visa. 

Sadly, our client was exploited by criminal elements and engaged in fraudulent activity.  Our client was arrested and convicted and sentenced to three years and six months imprisonment.  At the end of his criminal sentence he was transferred from prison to an immigration detention centre with the intention to deport him from the country.  This would have been a devastating blow for our client, as it would mean that he would be separated from his daughter who was born in Australia. 

Our client lodged applications for a Resolution of Status visa and for a Bridging visa to allow him to remain in the country while his immigration status was being considered.  Immigration however refused the Bridging visa which meant that our client could be deported immediately.  We urgently lodged an appeal against this decision and this was heard by the Immigration Review Tribunal.  We were able to assist our client in persuading the Tribunal that he was extremely remorseful for his previous actions and that he would not abscond if he were allowed to remain free while his application was being considered.  As a result our client was released from detention and, with our assistance, able to pursue his application for a permanent visa.

You can read the published version of this case by clicking here.

 

Dependant children over 18

In this case our client originally came to Australia as a refugee from Vietnam.  He had been an officer in the South Vietnamese army. After the fall of Saigon he had been put into a concentration camp, from which he eventually escaped.  He was forced to leave his wife and four children in Vietnam and flee for his life.  He did, however, continue to support them by sending them money over the years.

Eventually his wife made an application for her and her four children, who were now all over the age of 18, to join our client in Australia.  Immigration refused the spouse visa because of the age of our client’s children.  It was Immigration’s contention that they could not be considered as dependants because of their age.  It was our argument, however, that Immigration had not properly taken into account the exceptional circumstances of this case.  Below is an extract from the Immigration Review Tribunal’s decision which directly quotes from our submissions in this case:

This is an unusual case, because the circumstances are most unusual. Mr Do has been separated from his wife and family for 21 years, because of dramatic political events which have had a tragic and enduring impact on all of them. This was particularly so because of the senior positions which he held in the administration that was overthrown in Vietnam in 1975. Such circumstances are clearly exceptional. It was, to begin with, an exceptional circumstance that Mr Do had such a senior position in the army and the police force. It was an exceptional circumstance that the republic was overthrown on 30 April, 1975. He was put into a re-education camp, something which might more appropriately have been described as a concentration camp, and through exceptional circumstances he escaped. The history of his various attempts to escape from Vietnam is an extraordinary one. He has shown great courage and determination. Because he was, all in all, a person in exceptional circumstances he was ultimately recognised as a refugee and obtained permanent residence and ultimately citizenship in Australia. These things explain why he has been separated from his family for 21 years, but they do not make that separation any less painful. It is obvious that these events would have impacted heavily on Mr Do's family. Many would say that there was a necessary loss of dignity on account of the way in which they, due to his absence, had to rely on charity from others. They have obviously been living in the most reduced of circumstances and this is attested to by the photographs which Mr Do will exhibit at the hearing. They have all, in their own way, been prisoners of circumstances. It might have been Mr Do who was interned in the re-education camp, but it is no less true that his wife and children were punished by these events. It is hardly surprising that in all these circumstances this family has found it difficult to make its own way in life.

In their reduced circumstances, they have quite clearly been principally reliant on the money which Mr Do has been sending to them since 1991. This is much longer than the requisite "reasonable period" referred to in the Tran decision.

Mr Do also confirms that it is an established feature of Vietnamese custom that a parent, be it a mother or a father, has obligations to support children, including adult male children, up to the time of their marriage. The kind of support required is not merely financial but goes to the well-being of the children as well. It is in this context that not merely financial support has been provided, but psychological support as well, and in the particular circumstances of this family in the context of Vietnamese culture, it would be highly likely that the four sons are substantially dependent, in one way or another, on their mother. On top of the usual elements of Vietnamese culture, there are the highly unusual aspects of the history of the family, which are outlined above and detailed in Mr Do's declaration. All of these things present a clear picture of dependence.

The Tribunal was persuaded that despite the fact that our client’s children were all over the age of 18, they should be considered as dependants.  This resulted in the entire family becoming eligible to be reunited in Australia with permanent residency.

You can read the published version of this case by clicking here.

 

Refugee case: Sri Lanka

Background

This client applied for a protection visa based on his fear of persecution in Sri Lanka.  Our client had been caught between two warring sides in a civil war in Sri Lanka.  As an ethnic Tamil he and his family had suffered a great deal of persecution including being beaten and having their house burnt down.  He was told to fight with the LTTE “Tamil Tigers” which he refused to do and was therefore detained on a number of occasions by the Tamil rebels.  At the same time he was suspected by the Sri Lankan Government of being involved with the Tamil rebels.  He had been detained and tortured by them on a number of occasions.  He was eventually able to escape Sri Lanka and made his way to Australia with a student visa. He subsequently applied for a protection visa, which Immigration refused.

Our involvement

We were instructed by our client to represent him in an appeal against that decision at the Refugee Review Tribunal. We thoroughly researched the background of the case and submitted detailed written submissions and evidence which explained and strengthened our client’s case. 

For example, one of the most crucial points in this case was regarding whether a factory that our client had worked in had closed down as our client alleged.  Immigration had found a listing for the factory in a Sri Lankan phonebook and therefore argued that it had never closed down and therefore our client must have been lying.  Had this point not been convincingly addressed it may have been fatal to his credibility.  We however were able to counter this point by submitting a Sri Lankan newspaper article referring to the factory closing down the year that our client said it had.  This was just one of several items of evidence which we submitted along with our written submissions. 

In the end our client was found to be credible and it was held that he was in fact a refugee.  This enabled him to take up permanent residence.

You can read the published version of this case by clicking here.

 

Psychological dependence

Background

In this case our client has been included on his father’s visa application as a dependant child.  As he was fifteen years old at the time the application was made this would not normally have been a problem. However, by the time Immigration made a decision on the visa application our client was well over eighteen years old.  Immigration decided that he was no longer a dependant of his father and it refused his visa application.

Our involvement

We argued that due to the fact that our client was still in education and still being supported both financially and psychologically by his father, he should still be considered a dependant.  There were two main aspects to our argument.  The first point was with regard to the technical meaning of each relevant word in the Migration Regulations.  We successfully presented a technically complex case in which the legal meanings of the terms wholly and substantially and dependant were argued in great detail.  In addition to our technical arguments we also submitted points about the cultural and psychological aspects of dependency and how they related to the specific facts in our client’s case.  The Tribunal member refers to our submissions on this point, in an extract from his determination, below: 

Mr Slater submits that the cultural factors in this case support a conclusion that the secondary visa applicant is substantially psychologically dependent upon his parents.  Again, statements made by Justice Heerey were cited to support this contention.  The Tribunal consider that these arguments are compelling and finds that, on the evidence before it, the secondary visa applicant is substantially psychologically dependent upon his father, the primary visa applicant. 

Through careful preparation, research and well thought out submissions we were able to persuade the Tribunal to look past the bare bones of the regulations and to consider the meaning behind the relevant phrases.  We believe that it was our technical application of the law and our attention to detail that made the vital difference in winning this case. 

You can read the published version of this case by clicking here.

 

Health waiver: videotape evidence

Background

This is a case in which our client, her mother, two older brothers and grandfather were all nominated by our client’s father to come to Australia where he had established a successful business.  They had all met the visa requirements except for one, which was that our client did not meet all the ‘public interest’ health criteria.  Our client had some serious medical problems as well as some cognitive difficulties.

Immigration took the view that our client would cost Australia too much in medical expenses and that she would be unlikely to get employment.  Our client was given the opportunity to comment on Immigration’s view before a final decision was made.  Despite affidavits and financial evidence being submitted that showed that our client’s family would ensure that all medical costs were paid for by them, Immigration still refused the visa.

Our involvement

This was a very complex case which involved an in-depth understanding of the medical and financial evidence presented and a precise interpretation of government policy. We lodged an application for review at the Migration Review Tribunal in which we made detailed submissions on the overall lifetime charge to Australian public funds, the potential for the applicant’s state of health to deteriorate, the educational and occupational needs of the client, the prospects for the applicant in Australia over the whole period of intended stay, the available private care and support and the extent of social welfare, medical, hospital or other care likely to be required. 

In addition to our legal arguments we took extra steps to ensure that the Tribunal member would be persuaded by our evidence.  We submitted letters of support for the application by a Senator and an MP.  We also submitted a videotape of our client doing household chores along with a statutory declaration from one of our staff about the tape with comments and notes for the Tribunal to consider.  The extra efforts which we make at Brett Slater solicitors is sometimes what makes all the difference.  The Tribunal ruled in our favour and our client’s application was allowed.  

You can read the published version of this case by clicking here.

 

De facto spouse:  financial aspects

Background

Our client entered Australia on a student visa and remained on various student visas for four years.  While in Australia she met an Australian citizen with whom she started a lasting relationship.  Although they were living in an exclusive relationship, they were not married and Immigration refused to allow the applicant to remain as a de facto spouse of an Australian citizen.  (A de facto marriage is a relationship that is in all respects the same as a traditional marriage except for the absence of any official certification). 

Our involvement

In order to prove that a de facto marriage exists the following factors are usually considered as being important: the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, the nature of the persons’ commitment to each other, a mutual commitment to a shared life as husband and wife to the exclusion of all others, whether the couple live together, or do not live separately or apart on a permanent basis, and whether the relationship existed for 12 months prior to the application.

We represented our client in the Migration Review Tribunal and put together a convincing portfolio of evidence, which showed that all of the above factors existed at least to some extent.  The client’s main difficulties were regarding the financial aspects of the relationship and the times that the couple spent living apart.  With careful preparation of the evidence and by taking statements from our client, from her spouse and from their friends we were able to persuade the Tribunal that the relationship was a genuine de facto marriage.

You can read the published version of this case by clicking here.

 

 Refused without proper reasons

Background

The applicant travelled to Australia on a four-year visa.  After working in Australia for approximately two years and prior to instructing us, the applicant and his large family applied to the Department for a permanent employer nomination visa.  This visa application was refused.   When the Department sent the decision to the applicant it was not correctly addressed to the client and did not contain proper reasons as to why the applicant’s visa was refused.

The applicant did not appeal this decision to the Migration Review Tribunal within the normally allowed time.  As a result, when he did appeal to the Migration Review Tribunal, the Tribunal said that they could not change the Department’s decision to refuse him a visa.   By this time, the applicant did not have a visa, he could not work and it was possible that he and his family, including 8 children, could be removed from Australia.

Our involvement

At this stage the client came to see us.  After carefully examining the client’s case we lodged an application in the Federal Magistrates Court.  We argued that Immigration’s decision refusing to consider the client’s visa was not a proper decision because it did not set out (in the technical way required) the reasons why his visa application was refused and was not properly addressed to him.  We also argued that the Tribunal should have appreciated this problem and re-considered the client’s case.

In response to our carefully drafted arguments, the solicitors for the Minister for Immigration and Multicultural Affairs agreed with us that the decision to refuse the client’s visa was not properly notified.  The court agreed that the Tribunal should have fully considered the client’s appeal.  It was agreed between us and the parties that the client’s case should be sent back to the Tribunal for redetermination, and the court made orders to that effect.

Back at the MRT, we then obtained a successful outcome for our clients.

 

Proving direct and continuous involvement in a business

Background

The applicant had held a sponsored 457 temporary business visa on which he had travelled extensively, including many trips to China, at the time that he applied for a Business Skills Residence visa. In his application he relied on owning and managing an Australian business.  Before our involvement Immigration had determined that the applicant’s frequent travel overseas must have precluded him from managing his business in Australia as he was often absent from it. Immigration concluded that the applicant had therefore not maintained direct and continuous involvement in management of his business from day to day, and told him he was not eligible for the permanent (subclass 845) visa.

Our involvement

Our client appealed the decision and we represented him before the Migration Review Tribunal. We made detailed submissions to the tribunal to the effect that our client maintained direct and continuous involvement with his business even while overseas.  We said that his time spent overseas had in fact contributed to the company’s strong growth. We assisted our client to gather extensive evidence to support our submissions, including financial information and statements from business associates. On the basis of our submissions and the additional evidence now made available, the tribunal accepted that our client had in fact maintained a direct and continuous relationship with the Australian company.

Below is an extract from the Migration Review Tribunal regarding the evidence submitted:

"Extensive evidence, in the form of testimony from business associates and employees, financial statements and phone and fax records, has been provided of the primary visa applicant’s role as manager of the nominated business, including his day to day involvement in the running of the business. Based on this evidence, the Tribunal has no doubt that the primary visa applicant meets the requirement of paragraph 1.11(1)(b)."

The Migration Review Tribunal set aside Immigration’s decision.  This means our client won his appeal.

You can read the published version of this case by clicking here.

 

Waiver of cohabitation requirement

Background

In this case our client applied for a spouse visa after having been in a relationship with her partner for 17 months. For most of their relationship, however, the couple had lived separately and maintained separate households. The visa application was rejected by Immigration on the grounds that for the 12 months before the application, the couple had not actually been living together.

Our involvement

For the appeal, we drafted detailed statutory declarations for our client detailing the circumstances of the couple’s relationship and the reasons for their decision to live apart for much of the relationship. We made carefully argued submissions that the couple throughout their relationship held an adequate commitment to a shared life as husband and wife. The evidence gathered included statements not just from family and friends, but also from people who had known the couple in a professional capacity, such as their doctor. The tribunal accepted our representations that the couple had lived apart partly because of custody issues which the applicant was having with her ex-husband, and partly to ensure the wellbeing of her daughter.

The tribunal agreed that it was appropriate that the 12 month cohabitation requirement should be waived. With our help, the applicant won her case.

You can read the published version of this case by clicking here.

 

Spouse visa: remarriage to first wife

Background

Our client left his home country of India (leaving his family behind) due to religious persecution. After remarrying an Australian and gaining permanent residency, he divorced.  He then wanted his first wife in India and their four children to come to Australia under a spouse visa. Immigration took the view that our client was not a credible witness, and rejected the application.

Our involvement

We appealed against this decision to refuse the visa. Carefully preparing our client’s case, we effectively provided the “vital missing evidence” that was critical to the success of our client (arguing a strong public interest criteria). Because of this, the Tribunal found that the current marriage of our client and his wife in India was a genuine and continuing one. It ruled that our client’s wife met the criteria for a spouse visa. The family were then eligible able to be reunited in Australia.

You can read the published version of this case by clicking here.

 

"Militant" refugee

Background

Our client, an Indian citizen, was discriminated against because he was a prominent Sikh. Police in India viewed our client as a prominent militant, and he was repeatedly tortured and detained on numerous occasions. Even when he was on release, he was kept under surveillance and as a result had difficulty finding work. He escaped to Australia on a temporary resident visa, with his wife and children remaining in India.

Immigration, while acknowledging there was a real chance our client would be persecuted if he returned to Punjab, found that he could safely relocate to other parts of India. It therefore rejected our client’s application for a protection visa as a refugee.

Our involvement

On appeal, we carefully constructed an argument based on credibility. Presenting our client’s evidence in a frank and direct manner, we demonstrated to the Tribunal how the evidence presented was consistent with earlier written evidence. We showed how our client’s experience of repeated arbitrary arrests, imprisonment and torture was consistent with authoritative sources such as published human rights reports.

By submitting to the Tribunal details of our client’s circumstances, history, religious and political profile, we successfully argued that it was not reasonable for our client to relocate to other parts of India as it would not provide him with a secure alternative home or effective protection. Because of this, the Tribunal found our client to be a refugee.

You can read the published version of this case by clicking here.

 

Character deportation prevented:  AAT

Background

Our client, together with his family, was selected for resettlement in Australia as a refugee. At the time our client was aged 13. Our client experienced adjustment problems in Australia. He soon left school and left his family to live on the streets. In the resulting years our client was charged with a number of offences, to which he pleaded guilty.  Immigration then ordered that our client be deported under section 200 of the Migration Act. This provision allowed any non-citizen who has been in Australia for less than 10 years and has been convicted of an offence for which he has been sentenced to imprisonment to be deported.

Our involvement

We constructed a line of argument that while there was a risk of some low level reoffending, this risk should not be classified as a serious one. Using various testimonies, we were able to convince the Administrative Appeals Tribunal that our client would suffer significant hardship, as would his immediate family, if he were deported. Our client’s family ties were now all in Australia. Supplementing this legal argument, we persuaded the Tribunal that it would not be placing the safety and security of the community at risk by allowing our client to stay in this country.

As a result, the Tribunal gave the direction that our client should not be deported from Australia.

You can read the published version of this case by clicking here.

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