Two Australian FLag with a Sky Background

Migration Law Blog Series (MLBS) 9 – Migration Visas Evidence and Procedure – (Part 1)

By Mr Anthony J Aristei

Migration Visas Evidence and Procedure. This is the ninth in a series of blogs that are focusing on Migration Law.

If you have a migration issue, and you are uncertain if you should file or what documents to file, do not delay, please seek legal advice straight away. Do not wait until it is too late.

Nothing here should be taken as legal advice or a substitute for speaking to a lawyer from our office if you have any questions on 08 63238613. Unsure of what stage your matter is at, or what to do next? A solicitor from Kean Legal Barristers & Solicitors is ready to help.

There are a wide variety of substantive visas that permit an overseas visitor to reside in Australia.  Depending on the visa, the permit is granted on either a temporary or a permanent basis.

All visas are granted by the Department of Home Affairs Immigration and Citizenship (“Migration Department”). The Migration Department also decides upon any variation or cancellation of a visa, as well as a variety of other special applications. As a government department of Australia, it is required to determine each visa application on the basis of Australian law.

If a visa applicant is aggrieved by a decision that has been made by the Migration Department, he or she has a right to seek a review or an appeal (depending upon the particular circumstances).

Applications for an appeal or review are made to either one of the Australian Federal Courts, or to an Administrative Tribunal (primarily The Australian Appeals Tribunal – AAT).

The rights and duties arising from such applications are complex.  Further information about them has been detailed in a number of our other blogs.

Evidence in Courts 

In migration matters, there will be different requirements that the Department of Home Affairs Immigration and Citizenship (“Migration Department”), the Federal Courts, and the Administrative Tribunals will need to be satisfied of. 

The way an applicant satisfies these requirements is by evidence. The Department of Home Affairs Immigration and Citizenship (“Migration Department”), the Federal Courts, and the Administrative Tribunals must apply the rules of evidence and procedure when looking at any application before it. 

If the Australian legal system is the vehicle for obtaining justice, then the rules of procedure and evidence are the ‘petrol’ and the ‘oil’ needed for that vehicle to operate.

A self-represented applicant who is not legally trained may not know that.

Practical Example Migration Visas Evidence and Procedure

An example is if a matter is being heard in the Federal Circuit Court and the matter is listed for a Final Hearing. For that application, a copy of an Italian marriage certificate and a certified translation needs to be filed. How would you go about filing that document?

One of the ways that the Federal Court will accept documentary evidence is by way of Affidavit. An affidavit is a written statement prepared by a party or witness. It is the main way you present evidence (facts of the case) to a court. You must swear or affirm that the contents of an affidavit are true before a person authorised to witness your signature; for example, a lawyer or Justice of the Peace.

The Federal Court will accept the marriage certificate and translation into evidence if a Witness, who is a qualified translator, has sworn or affirmed an affidavit annexing a copy of those documents. 

If the documents are not properly tendered in as evidence, the Federal Court will reject those documents. 

The take-away

In all cases, the prospects of success of your visa application will depend upon your compliance with the rules of evidence and procedure. That ‘ golden rule’ applies, whether your application is being determined by the Migration Department, or by a Federal Court or Administrative Tribunal.

Yet judgements in this area of law show an alarming trend. They demonstrate that applicants consistently ignore or misapply the important rules of procedure and evidence which apply to their case.

Your visa application is far too significant to be handled by you if you do not have legal qualifications and sufficient background in the practice of migration law.

Would you try to perform ‘root canal surgery’ on yourself, instead of going to the dentist?

If not, then why would you do effectively the same thing when it comes to the ‘health’ of your visa application? Get the help you need. Your visa rights or entitlements are of considerable economic and personal value to both you and your family.

If you have a problem or difficulty relating to your visa or application, we highly recommend that you speak to us to obtain legal advice and representation. We can be contacted on our 24/7 office number on +61 8 6323 8697

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