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No substitute for experience and skill in immigration law

A former Minister for Citizenship once said that representatives of migration applicants do nothing more than present their clients' facts to the Department.

My response is to quote George Gerswin, "It ain't necessarily so."

Over the years as a solicitor specialising in immigration law, I have had to intervene on literally hundeds of occasions to see that my clients receive a fair (and legal) go from the Department of Immigration.

I'll give you three recent examples from the last two weeks.

Shifting from long stay business visa to partner visa

Client 1 fell out of employment with his employer, and was on a long stay business visa (really a form of skilled workers visa - subclass 457). He was locked into working for this past employer by a standard condition on his visa, which he could not readily remove. This meant that he could work for no one.

The Department advised that he let his original visa be cancelled (to remove the work condition) and then apply for a visitors visa. The problem with this is that once the visa was cancelled, he would not be able to apply for a visitors visa for three years. The Department should have been aware of this effect, but was not. Also, one should only advise a client that a visa be cancelled as an act of last resort.

I have advised Client 1 to proceed with a partner visa. When it is granted it will put to an end the first visa and the restrictive work condition.

Securing a refugee's right to work

Client 2 applied for a protection visa (a visa refugees apply for). I advised that she apply within 45 days of her arrival in Australia, so that she could secure work rights (a migration rule for protection visa applicants). Within a week I prepared and lodged the application, so that she would be able to earn a livelihood while the application is being processed (which can take some years if errors are rectified through the review systems).

The Department's acknowledgement letter said my client did not have the right to work. The Departmental delegate had clearly misapplied the prevailing rule. I immediately wrote back to the Department, and it quickly conceded the error. Imagine the difficulty that have have arisen for Client 2 if she had not engaged a lawyer to intervene on her behalf!

Husband joins wife - 457 sponsorship

Client 3 is the recent husband of a person with a long stay business visa (subclass 457). He could join his wife in Australia (who had been here for two years), being sponsored by the company which had previously sponsored his wife. I prepared a submission explaining the circumstances, and expected the application proceed without too much trouble. How wrong was I.

Within two days of lodging the application I was told the husband "cannot apply for this visa, there is no sponsor". Unfortunately the Departmental delegate hadn't read my covering submission, explaining that as the husband was a secondary applicant, he was covered by the previous sponsorship of his wife (evidence of which I had specifically included in the application, to make the delegate's job easy!).

After a discussion with the delegate and directing her to my submission the delegate conceded that my client could lodge an application. Client 3 is now in Australia, happily reunited with his wife.

These three examples illustrate traps in immigration law, which is both voluminous and complex. Clients are often like lambs to the slaughter, and I'm not sure the notion of "a simple case" exists. Rarely is there a substitute for being represented by an experienced and skilled immigration law advocate.

 


AUTHOR

Paul Hense BA, LLB, BSW (University of Sydney), Principal, Paul Hense Migration Lawyers

Tel (61 2) 9262 4242  |  Email: paul.hense AT henselaw.com.au

If you wish to proceed to personalised assistance from Mr Hense of any inquiry, it will be done on a strict fee for service basis.

Mr Hense has been a migration lawyer since 1994. He has run a number of landmark cases, including before the High Court of Australia. He frequently represents clients before the Migration Review Tribunal and Refugee Review Tribunal. He has lectured for the University of NSW on refugee law and for the Immigration Advice and Rights Centre.  From 1990 and until recently he was a volunteer with the Immigration Advice and Rights Service. Previously he was a Senior Research Officer for the Australian Taxation Office.


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