KEY COURT CASES OF PARISH PATIENCE

Parish Patience has been instrumental in initiating many ground breaking cases which have created legal precedents in Immigration and Human rights history in Australia.

Parish Patience Immigration Lawyers was solicitor for Plaintiff S157/2002, in the landmark Australian constitutional law cases, Plaintiff S157 of 2002 (2003) HCA 2   and Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) HCA14.  These cases protected the rule of law in Australia by confirming Acts of Parliament as unlawful, to the extent that they sought to restrict the powers of the High Court entrenched in the Constitution. These cases were influential decision not only in relation to immigration law but to administrative law generally and are an authority for the proposition that Parliament cannot restrict the availability of constitutional writs

Parish Patience Immigration Lawyers was solicitor who identified that the automatic cancellation of many student visas was unlawful. We filed an appeal in the now publicised Federal Magistrates Court case of Uddin v Minister for Immigration (2005) FMCA 841 (7 June 2005).  As a result of that case, approximately 8000 automatic student visa cancellations were administratively overturned.

In the Waensila v minister for Immigration and Border Protection [2016] FCAFC 32 (11 march 2016),  all three Federal Court Justices making up the Full Bench Agreed with Parish Patience Immigration Lawyers that on onshore partner visa application for applicant who does not hold a substantive visa satisfy schedule 3 requirement at the time of decision not time of application.

 In 2013, in a decision of the Full Court in SZGIZ had effectively opened the door for renewed applications made on complementary protection grounds even if a previous application made on “refugee” grounds had been refused. Because of this case over 10000 of applicants received second chance to apply for a further refugee application in Australia. Etc…

XCHQ and Minister for Home Affairs (Migration) [2018] AATA 4280 (19 November 2018)

– mandatory cancellation of visa – substantial criminal record – discretion to revoke cancellation of visa – whether there is another reason why the mandatory cancellation should be revoked – Ministerial Direction No. 65 – protection of the Australian community – nature and seriousness of conduct – possession of prohibited drug – possession of unauthorised firearm – assault – driving offences – resist officer in execution of duty – offences in prison – risk to the Australian community should conduct be repeated – best interests of minor children – expectations of the Australian community – strength, nature and duration of ties to Australia – extent of impediments if removed from Australia – decision set aside

Mahmoud v Minister for Immigration & Anor [2018] FCCA 54 (8 February 2018)

In this case, Judge Driver accepted our] argument that a desire to remain in Australia is not necessarily inconsistent with the formation of a mutual commitment to a shared life with another person. Judge Driver further accepted Mr Jones’s argument that a visa applicant’s motivation for entering a relationship is a relevant consideration for the Tribunal in considering a partner visa application. His Honour noted that the reasoning of the Tribunal disclosed that it created a false dichotomy between the applicant’s undoubted desire to remain in Australia and the existence of a genuine and continuing relationship with the sponsor. His Honour further concluded that the creation of that false dichotomy distracted the Tribunal from the essential visa criterion in s.5F of the Migration Act.

Accordingly, Judge Driver held that jurisdictional error has been established.

Bautista v Minister for Immigration and Border Protection [2018] FCA 1114 (27 July 2018)

MIGRATION – application for partner visa – appeal against dismissal by Federal Circuit Court of application for judicial review of Tribunal decision – where Tribunal sent appellant a letter pursuant to s 359A of the Migration Act 1958 (Cth) (the Act) – where Tribunal extended period during which to respond to s 359A letter in accordance with s 359B(4) and reg 4.18A(4) and calculated the last day for response as 21 August 2014 – where appellant responded on 22 August 2014 – revocation of offer to attend hearing at the Tribunal under s 360 of the Act for failure to respond to s 359A letter within statutory time limit – effect of s 363A of the Act – whether Tribunal miscalculated length of prescribed further period under s 359B(4) of the Act– whether Tribunal erred by not conducting a hearing in accordance with s 360 of the Act MIGRATION – requirements for s 359A letter – whether the Tribunal failed to give the appellant clear particulars of information it considered would be the reason or part of the reason for affirming the decision under review – degree of particularity required in s 359A letter STATUTORY INTERPRETATION – interpretation of s 359B(4) of the Act –– interaction of s 359B(2) and s 359B(4) of the Act, and regs 4.17 and 4.18A of the Migration Regulations 1994 (Cth) (the Regulations) – whether primary Judge erred in interpretation of reg 4.18A(4) – validity of reg 4.18A(4) of the Regulations – whether reg 4.18A(4) led to manifest arbitrariness or a result inconsistent with the intention of s 359B(4) of the Act – effect of invalidity of regulation prescribing statutory time limit – whether power under the Act is dependent on existence of prescription by regulation – whether time requirement can be read into s 359B(4) in the absence of prescription by regulation