AAT Character Cancellation Case: Revocation of mandatory cancellation under s501CA
Bui v MICMSMA (2022). Heard in the AAT. More details.
Student – Genuine Temporary Entrant
Heard in the AAT. Applicant had a very long history of non-attendance and non-payment of fees. DHL argued that the default was historical, and that the applicant was back on track. Review successful. Matter remitted.
Heard in the AAT. Case concerned remaining relative visa refusal. Primary decision-maker had not accepted the absence of non-Australian near relatives. Case remitted on review, on the basis that the family member, which the Department found to be offshore and non-permanent resident, was actually alive and well living in Australia, as an Australian citizen!
Schedule 3 Issues
Heard in the AAT. Applicant refused onshore partner visa on Schedule 3 grounds. Applicant had been unlawful (and for some time, in detention) prior to application. DHL argued the compelling needs of the Australian family unit, requiring the applicant to remain in Australia as the main source of support. Review successful. Matter remitted.
Schedule 3 Issues
Heard in the AAT. Applicant refused partner visa on Schedule 3 grounds. Applicant had been unlawful with previous traffic offences. DHL argued the compelling needs of the Australian partner, who would not have coped with applicant’s departure from Australia. Matter successfully remitted to Department.
Heard in the AAT. A permanent partner visa had been refused on basis the relationship was no longer continuing. The applicant had been the victim of prolonged sexual and psychological abuse during the relationship. DHL argued the family violence provisions, where the relationship has ceased. Result: Applicant granted permanent residence.
Sentence Mitigation / Section 501 issues
Victorian Magistrates Court. Various matters involving drugs/assault/drink driving charges. DHL advocated in mitigation, to address s501 visa refusal/cancellation issues.
The Case of the Buried DNA
I’d like to share a story on a recent citizenship-by-descent case we won, where we were able to retrieve evidence of paternity from the grave of a deceased Australian citizen 15 years after the person’s burial. This may help other enthusiastic practitioners out there, grappling with similar evidential difficulties.
In July 2001, the Australian citizen had applied to sponsor his wife and 3 children to Australia on a partner visa. Sadly however, this sponsor passed away from lymphatic cancer in Melbourne in 2002, before the application was decided. With no living sponsor, the Department refused the application, and the bereaved wife and children were left stuck in limbo. Family representatives eventually came to us to see what could be done for the children.
We contacted the Victorian Institute of Forensic Medicine to ask if it was at all possible that a deceased’s remains could still render DNA evidence 14 years after interment. The advice was that this was very possible.
Relying on that theory, we took instructions and began the task of locating the deceased’s place of interment, and applying for citizenship.
Exhumation rules are reasonably complex. We first needed a Licence to Exhume, to be issued by the Health Dept. For this we were required to make submissions addressing the Cemeteries and Crematoria Act, and the Victorian Institute of Forensic Medicine Act.
We also needed permission of the grave owner and the permission of the cemetery. Finally, we needed to instruct funeral directors and forensic experts to take DNA for analysis.
The process took over two years from the day of instructions.
It was with significant relief that, after months of waiting, the forensic scientists advised us in October, that they had managed to recover readable DNA from the deceased, which was then shown to match that of the deceased’s three children in Nairobi.
Based on this evidence, the Department has now allowed the applications, and issued citizenship certificates for these children.
So the message to your readers is: Don’t be afraid of reaching into the grave to gather your evidence. It may well be down there.