Importance of recent Federal Court decision Pearson v Minister for Home Affairs [2022] FCAFC 203

Blog & Articles, Immigration Department of Australia, Immigration Law, Migration Law

Under Section 501(3A) of the Migration Act 1958 (Cth)(“Act”), a visa holder is subject to mandatory visa cancellation if:

  1. The person does not pass the character test because of the operation of:
    1. paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
    2. paragraph (6)(e) (sexually based offences involving a child); and

 

  1. the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

A “substantial criminal record” on the basis of paragraph (7)(a), (b) or (c) of the Act is where a person has been sentenced to death (7)(a), imprisonment for life (7)(b), or a term of imprisonment of 12 months or more (7)(c).

Until the Pearson judgment was handed down on 22 December 2022, an aggregate (combined) sentence of at least 12 months’ imprisonment has triggered mandatory visa cancellation.

Pearson v Minister for Home Affairs [2022] FCAFC 203

The Full Court’s decision in Pearson v Minister for Home Affairs [2022] FCAFC 203 found that an aggregate sentence of imprisonment of at least 12 months did not constitute a ‘term of imprisonment of 12 months or more’ and therefore would not result in a mandatory visa cancellation under s 501(3A) of the Act.  

The Full Court’s reasoning behind this is that mandatory visa cancellation should only be enlivened for the most serious offences, such as those attracting the death penalty, life imprisonment, a term of imprisonment of 12 months or more for a single offence, or sexual offences involving children. The Full Court held the view that the mandatory cancellation was “reserved for the most serious offences”.

Moreover, the Full Court also found that an aggregate sentence itself says ‘little to nothing about the seriousness of the individual offences’.

Consequences

The Pearson decision set a precedent that mandatory visa cancellation is not enlivened when the sentence imposed is an aggregate sentence of imprisonment of 12 months or more. The consequences of the decision made in Pearson case are substantial and there are reports that up to 100 people have been released from immigration detention since the decision.

However, the Migration Amendment (Aggregate Sentences) Bill 2023 was introduced to clarify that s501(7)(c) applies in relation to a person sentenced to a term of imprisonment of 12 months or more, whether the sentence is imposed for a single offence or for 2 or more offences.

This Bill was passed through both Houses of Parliament on 13 February 2023 and will receive Royal Assent shortly, effectively undoing the precedent set in Pearson.

Updated processing times for Contributory Parent Visas

Blog & Articles, Migration Law

On 2 September 2022, the Australian Government announced that the planning level of Parent visas (both contributory and non-contributory) in the 2022-2023 Migration Program will increase from 4500 to 8500.

 

However, there is no certainty in processing times for Contributory Parent visa applications (onshore and offshore) as these visa applications are subject to capping and queueing. The Department of Home Affairs estimates that new Contributory Parent visa applications lodged that meet the criteria to be queued are likely to take at least 12 years to be released for final processing.

Please contact us if you would like any further information on Parent visa options.

 

Parent visas queue release dates (homeaffairs.gov.au)

Why should asylum seekers seek expert legal advice?

Blog & Articles

How important is it for asylum seekers to seek expert legal advice and representation?

 

According to an article published in The Conversation*, asylum seekers with legal representation are seven times more likely to succeed before the government tribunal tasked with reviewing refugee cases than those who represent themselves.

 

The Administrative Appeals Tribunal (“AAT”) considers applications for review of decisions by the Department of Home Affairs to refuse Protection visas. This is a second chance, where applicants have the opportunity to put further documents and information before the AAT member. This is often the last chance that asylum seekers have to ensure their claims for protection are adequately articulated before the AAT. These are cases of life and death.

 

While correlation is not causation, these are certainly interesting statistics.

 

As such, we strongly encourage asylum seekers to seek professional legal advice, to ensure the best possible case is put forward. The lawyers at Tang Law have substantial experience with Protection visa applications. Please do not hesitate to give us a call today on (08) 9328 7525 if you would like to know more.

 

*How refugees succeed in visa reviews: new research reveals the factors that matter (theconversation.com)

Superannuation Splitting for Western Australian De Facto Couples

Blog & Articles

Where Superannuation increasingly forms a significant portion of a couple’s nest egg, Tang Law is pleased to hear Western Australia has come in line with the rest of Australia and de facto couples in Western Australia will be able to split their superannuation as part of their property settlement.

 

The ‘Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Act 2020′ (the Act) provides de facto couples with the ability to transfer a portion of their superannuation to the other party as part of their property proceedings.  This will provide De Facto partners with more options and greater flexibility in how they wish to divide their property after separation.

 

Property Proceedings and Superannuation

Property proceedings in the Family Law context refer to the division of assets after a couple has separated.

In Family Law property proceedings, Superannuation is treated as a special type of property as it is held in a Superannuation fund.

 

Super Split

Previously, only married couples have the option of providing a portion of their superannuation to the other spouse as part of their property proceedings. This is often called a ‘Super Split’.

The ‘Family Court Amendment Bill 2022’ (‘the Bill’) was introduced into the Western Australia Parliament on 6 April 2022. The bill, if passed, would give de facto couples the same ability as married couples to conduct a super split.

This long-anticipated reform would allow de facto couples in Western Australia to split their superannuation and achieve a fair division of assists in the event their relationship breaks down.

 

Updates in September 2022

On 28 September 2022, the ‘Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Act 2020’ (the Act) was passed into law and is now in effect.

The Act allows De Facto couples to now split their superannuation as part of property settlement if the Court determines it to be just and equitable to do so.

In order to be eligible for a split, the Da Facto couple must meet at least one of the following conditions:

     (1) There has been a de facto relationship for at least 2 years;

     (2) There is a child in the relationship and failure to make the order for a superannuation split would result in a serious injustice to the partner responsible for the care of the child;

     (3) One party made substantial contributions to the relationship and failure to make an order for a superannuation split would result in serious injustice to that party.

 

Further Assistance

Separating from your partner can be a very difficult time for many and the law surrounding what happens after separation can be daunting.

If you, or anyone you know, have separated from a de facto partner or spouse and would like advice in relation to children, property, or just what happens next – we endeavour to help you come to a resolution for your situation.

Please do not hesitate to give us a call today on (08) 9328 7525 to book in a consultation with one of our experienced Family Lawyers.

Tang Law as Finalist for 2022 Attorney General’s Community Service Law Awards

Blog & Articles

This year, the Awards were announced by the Hon John Quigley MLA on 30 September at Crown Towers Perth, and hosted by the Law Society of Western Australia.

 

The Attorney General’s Community Service Law Awards recognise the outstanding pro bono work of an individual, legal firm, non-profit organisation and Legal Aid private practitioner panel member, made to the Western Australian community.

 

Our team are humbled to be recognised for our contribution and be named among other reputable firms! We further strive to excel in our services whilst giving back to the local and broader community.

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