Cases
Court Cases
Kinslor Prince Lawyers is one of very few firms with a reputation as successful applicant litigators in immigration law. Some of our successful court cases are outlined below.
Visa Cancellation
Schmidt v Minister for Immigration and Border Protection [2018] FCA 1162 (7 August 2018)
Mr Schmidt sought judicial review of a decision of the Assistant Minister for Immigration and Border Protection not to revoke a decision to cancel Mr Schmidt’s class BF Transitional (permanent) visa under s 501(3A). The Federal Court of Australia quashed the decision by the Assistant Minister and ordered that Mr Schmidt be granted an extension of time to file an application for review of the decision made by the Assistant Minister.
Unreasonable Visa Cancellation
Gong v Minister for Immigration & Anor [2016] FCCA 561 (8 April 2016)
Mr Gong was in Australia on a student visa undertaking post graduate research. After he was charged by police with criminal offences he was granted bail. However, his visa was later cancelled by the Department of Immigration on the basis that he may be a risk to the Australian community. The Tribunal decision affirming cancellation was found to be unreasonable by the Federal Circuit Court.
Skilled Migration
Sohail Riaz & Anor v Minister for Immigration and Citizenship & Anor SYG976/2013 Federal Circuit Court
Mr Riaz applied for a subclass 485 skilled residence visa in Australia. This application was refused on the basis that he did not meet the Australian Study Requirement because he recieved advanced standing for some of his subjects.
After successfully studying a diploma in Australia and meeting the Australian skills standard, Mr Riaz’s plans for migration to Australia were derailed because he had been granted advance standing in his study program.
We represented Mr Riaz in his successful appeal before the Federal Circuit Court of Australia. We established that there was a legal error in the decision of the Migration Review Tribunal because it had misunderstood the Australian Study Requirement.
The Tribunal was ordered to reconsider the matter.
Immigration Health Test
Traill & Ors v Minister for Immigration [2013] FCCA 2
In this case the applicants were refused their visa because they had been found to have failed the public interest health criteria.
We represented the applicants’ in seeking review of this decision before the Federal Circuit Court. The Court found that the Medical Officer of the Commonwealth had misunderstood Australia’s immigration health test. We won the case for our client and the decision was sent back to the Department for reconsideration.
Business Visa Applicant
Xia Guo v Minister for Immigration and Citizenship and Anor SYG2572/2010 Federal Magistrates Court
Ms Guo is a business visa applicant who was rejected both by the Department of Immigration and Citizenship and on appeal by the Migration Review Tribunal. We assisted her to seek review of the decision of the Migration Review Tribunal before the Federal Magistrates Court. In this case both the Minister for Immigration and the Court accepted the legal argument we presented to show that the Tribunal’s decision was flawed. Our client won her case without a complicated hearing and the Tribunal was ordered to consider her case again.
The orders that the Court made can be found at the eCourt of the Federal Court of Australia.
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Refugee
SZOYH v Minister for Immigration & Anor [2012] FCA 713 (5 July 2012)
We are skilled in reviewing decisions of migration tribunals (Migration Review Tribunal, Refugee Review Tribunal and Administrative Appeals Tribunal) to discern whether a tribunal has understood the law and followed the correct legal procedure. This is important because the consequences are often very great for our clients.
In this case we assisted a child refugee applicant from China who had been rejected by the Refugee Review Tribunal. The Court found that the Tribunal had not properly considered his refugee claims and ordered the Tribunal to reconsider the matter.
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Overseas Student
Octavia v Minister for Immigration [2011] FMCA 16 (17 January 2011)
After studying in Australia as an overseas student for several years Ms Veronica Octavia’s permanent skilled visa was rejected as invalid by the Department of Immigration and Citizenship because of a legal technicality. This placed her in a very difficult situation.
She had successfully studied in Australia for a number of years and had obtained Australian qualifications in information technology. She had also been recognised by the Australian Computer Society as an information technology professional. Yet she was facing the prospect of being forced to leave Australia without lodging her skilled visa application.
We represented Ms Octavia before the Federal Magistrates Court and the Court accepted our legal argument that her permanent skilled visa had in fact been validly lodged.
The Right to be Heard
SZSXV & Anor v Minister for Immigration & Anor [2014] FCCA 1584
We represented protection visa applicants, a husband and wife, who had been unsuccessful before the Refugee Review Tribunal.
They had both claimed that they were at risk of persecution in Iran because they were Christian converts. The Refugee Review Tribunal invited both of them to a hearing but only asked questions about the claims of the applicant husband.
The Federal Circuit Court held that the Tribunal failed to provide the applicant wife an opportunity to give evidence at hearing as it was required to do so.
The Tribunal was ordered to reconsider the applicants’ case.
Tribunal Cases
Kinslor Prince Lawyers has extensive experience handling complex immigration matters at the Administrative Appeals Tribunal. Some of our successful cases are outlined below.
Migration Review Tribunal - Employer Nomination
We have assisted many clients whose visas have been refused or cancelled by the Department of Immigration and Citizenship, seek review of those decision at the Migration Review Tribunal.
In this case, Mr Kaadi was to be sponsored by his employer; Advanced Tiling and Stonemason for a nominated position. The Minister refused this application.
We made submissions to the Tribunal regarding the financial viability of the business and its ongoing training and support of Mr Kaadi, and represented the employer at the Tribunal hearing.
The Tribunal was satisfied that the employer was lawfully operating a business in Australia and had a need for a paid employee, as well as finding that it had a satisfactory immigration record and was providing training for Mr Kaadi who would be nominated in the position of Wall and Floor Tiler.
Student Visa Cancellation - English language proficiency
Our client applied for a student visa which was refused by the Department on the basis of finding that he did not meet the English language proficiency standard.
We presented evidence that the client had partially completed two Certificate IV in Australia, meaning that he met the English language proficiency test.
The Tribunal was satisfied that the applicant had provided sufficient evidence with regards to this criteria and the decision was sent back to the Department for reconsideration.
Student visa Cancellation - satisfactory course attendance
Our clients’ student visa was cancelled by the Department for failing to meet criteria 8202 “satisfactory course attendance”. We assisted the client to seek review of this cancellation at the Migration Review Tribunal.
Through careful consideration of the legal issues involved and obtaining expert reports, we helped him demonstrate that his failure to meet the criteria was due to exceptional circumstances. Our detailed submissions were critical in persuading the Tribunal to revoke the student visa cancellation.
Partner visa
Sometimes partner visa applications become complicated and difficult. The challenges of a partner relationship are increased when an immigration application is required for a couple to be together in Australia and we have assisted many couples to navigate the partner visa process.
One of our cases concerned a couple sought our assistance to overcome a partner visa refusal from the Department of Immigration. They had experienced relationship problems and had separated for a period of time. After their reconciliation they had not been able to satisfy the Department that of their on-going commitment to each other.
We assisted out clients to carefully explain the history of their relationship and to gather additional evidence about their relationship. The Tribunal was persuaded that their relationship was genuine and they won their case at the Migration Review Tribunal.
Carer visa
Our client had applied for a subclass 116 carer visa which included her three children and husband. They were to be sponsored by her sister in Australia, but the visa was refused by the Australian Consulate General in Ho Chi Min. We assisted the client in carefully preparing the evidence to establish that this refusal was reviewable decision before the Migration Review Tribunal and aided her in the review process. Through careful analysis of the elements required for a carer visa, we were able to establish before the MRT that there was no reasonable case against our client, and she was found to meet the carer visa requirements by the Tribunal.