Australian immigration companion [Seventh edition.] 9780409347531, 0409347531

Table of contents :
Full Title
Copyright
Foreword to First Edition
Disclaimer
Preface
Table of Cases
Table of Statutes
Using this Text
Table of Contents
Chapter 1 Introduction to Australian Migration Law
AUSTRALIA’S SYSTEM OF GOVERNMENT
Separation of powers
Australia’s Constitution
UNDERSTANDING COMMONWEALTH LEGISLATION
Types of legislation
The relationship between levels of legislation
Interpretation of legislation
Important distinguishing words
Derivations of the same word
MIGRATION LEGISLATION
EVOLUTION OF AUSTRALIAN IMMIGRATION LAW AND POLICY
MIGRATION ACT 1958
Structure of the Act
An overview of the Parts of the Migration Act
Part 1 — Preliminary
Part 2 — Arrival, Presence and Departure of Persons
Part 3 — Migration Agents and Immigration Assistance
Part 4 — Offences Relating to Decisions under the Act
Part 4A — Obligations Relating to Identifying Information
Part 5 — Review of Part 5-Reviewable Decisions
Part 7 — Review of Part 7-Reviewable Decisions
Part 7AA — Fast Track Review Process in Relation to Certain Protection Visa Decisions
Part 8 — Judicial Review
Part 8A — Restrictions on Court Proceedings
Part 8B — Costs Orders Where Proceedings Have No Reasonable Prospect of Success
Part 8C — Reports on Persons in Detention for More than Two Years
Part 8D — Civil Penalties
Part 8E — Investigation Powers Relating to Certain Offences and Provisions
Part 9 — Miscellaneous
MIGRATION REGULATIONS 1994
Structure of the Regulations
An overview of the Parts of the Regulations
Part 1 — Preliminary
Part 2 — Visas
Part 2A — Sponsorship Applicable to Division 3A of Part 2 of the Act
Part 3 — Immigration Clearance and Collection of Information
Part 4 — Review of Decisions
Part 5 — Miscellaneous
Schedules to the Regulations
Schedule 1 — Classes of Visas
Schedule 2 — Provisions with Respect to the Grant of Subclasses of Visas
Schedule 3 — Additional Criteria for Unlawful Non-Citizens and Certain Bridging Visa Holders
Schedule 4 — Public Interest Criteria
Schedule 5 — Special Return Criteria
Schedule 6D — General Points Test for General Skilled Migration mentioned in subregulation 2.26AC(1)
Schedule 7A — Business Innovation and Investment Points Test — Attributes and Points (Business Skills (Provisional) (Class EB) Visas)
Schedule 8 — Visa Conditions
Schedule 9 — Special Entry and Clearance Arrangements
Schedule 10 — Prescribed Forms
Schedule 13 — Transitional Arrangements
VISA CODES
AMENDMENTS TO MIGRATION LAW
POLICY: SCOPE AND LIMITATIONS
MIGRATION AGENTS REGULATIONS AND CODE OF CONDUCT
Part 1 — Introductory
Part 2 — Immigration Assistance given by Persons not Registered
Part 3 — Registered Migration Agents
Part 3A — Approved Activities
Part 3B — Approved Providers of Approved Activities
Part 4 — Miscellaneous
Part 5 — Transitional Provisions
Schedule 1 — Continuing Professional Development
Schedule 2 — Code of Conduct
DEFINITIONS AND DEFINED TERMS
Locating definitions
Definitions in migration legislation
Definitions in the Act
Definitions in the Regulations
Cross-referencing definitions within migration legislation
Definitions in other legislation
Definitions in policy or case law
Advice on interpreting terms in legislation
1. Study the interpretation provisions in the Migration Act and Regulations
2. Look for derivations of the word or phrase
3. Go to PAM and the MSIs to see the meaning under immigration policy
4. Check if the word or phrase or the section has been given a meaning by the courts
5. Research supplementary materials and intrinsic or extrinsic materials in the legislation
6. If there is no definition in legislation, consider whether the word has an ordinary dictionary meaning
Chapter 2 Introduction to Visa Application Procedures
LEGAL PERSPECTIVE FOR MAKING A VALID VISA APPLICATION
LEGISLATIVE REQUIREMENTS FOR MAKING A VALID VISA APPLICATION
Section 46 requirements
Schedule 1 requirements
Legislative instruments
LEGISLATIVE CONSTRAINTS ON MAKING A VALID VISA APPLICATION
Section 48: Non-citizen refused a visa or whose visa cancelled
Section 48A: Non-citizen refused a protection visa
Section 161: Criminal justice visas
Section 164D: Enforcement visas
Section 195: Detainees
Section 501E: Refusal or cancellation of visa on character grounds
Section 46AA: Some Act-based visas
Sections 46A and 46B: Unauthorised maritime arrivals and transitory persons
Sections 91E and 91G: CPA and safe third country
Section 91K: Temporary safe haven visa
Section 91P: Non-citizens with access to protection from third countries
Sections 46(1A), 41(2)(a) and 41(2A): ‘No further stay’ conditions and waiver
DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION (DIBP)
Portfolio scope
DIBP responsibilities
Department structure
LODGING A VISA APPLICATION
Visa application charges
First instalment visa application charge
Base application charge and additional applicant charge
Subsequent temporary visa application charge
Non-Internet application charge
Second instalment visa application charge
Health services charge
English language charge
Credit card surcharge
Refund policy
Prescribed arrangements for lodging visa applications
Online visa applications
Multiple visa applications
‘Automatic conversion’ of application
Appointment of migration agent or authorised person
Notifying the Minister of residential address
Reference to the Minister, Secretary or Australian Border Force Commissioner
Adding dependants after lodgment of application
Change in circumstances
Government assistance to certain visa applicants
Immigration Advice and Application Assistance Scheme (IAAAS)
Asylum Seekers Assistance Scheme (ASAS)
Legal Aid
Access to Medicare
CONSIDERING THE APPLICATION
Valid and invalid applications
Visa capping and suspending of applications
Assessing each person in the application
Invitation to submit application for another visa
Considering the information
Information concerning health and character etc
‘Non-disclosable information’
‘Protected confidential information’
COMMUNICATION BETWEEN THE VISA APPLICANT AND THE MINISTER
Prescribed ways of communication
Who?
How?
What?
Where?
Why?
Requests by the Minister for further information or to attend interview
Time limits for providing information, documentation and/or to attend interview
Matters for which time limits do not apply
Ways the Minister may give a document to the visa applicant
Correspondence sent to authorised recipient or carer of a minor
Time of receipt of communication from the Minister
Defective communication from the Minister
NOTIFYING DECISION ON A VISA APPLICATION
Approvals (visa grant)
Refusals — general
Refusals — character grounds
Final determination of an application
Chapter 3 Scenario Discussion Questions
SUMMARY
SUBJECT A: AUSTRALIAN MIGRATION LAW
Question A1: Definition of terms
Question A2: Johnny Begood — General visa concepts
Question A3: Johnny El-Kreiky — General application procedure
Question A4: Virginia Woolf — General lodgment and bridging visas
Question A5: Jason, new registered migration agent — Code of Conduct
Question A6: Bilbar — General concepts and Code of Conduct
Question A7: Unregistered agent — Unregistered practice
Question A8: Registered migration agent pitfalls — Code of Conduct
Question A9: Barry Barker — Ethics and ethical conduct
Question A10: Trueblue Visas and Pronto Visas — Ethics and ethical conduct
Question A11: Registered migration agent — Ethics and ethical conduct
Question A12: Chris — Ethics and ethical conduct
Question A13: Scarlett O’Hara — Resident return visa and validity of visa applications
Question A14: Simon White — Citizenship issues
Question A15: Amanda Yonkers — Citizenship issues
Question A16: Pierre Le Bon — Citizenship issues
Question A17: John Doh — Citizenship issues
Question A18: Ivy Nguyen — Citizenship issues
Question A19: Ricardo Taco — Citizenship issues
Question A20: June and Jackie Chan — Citizenship issues
Question A21: Maria and Gary Callas — Citizenship issues
Question A22: Helen and John — Citizenship and partner visa issues
Question A23: Bill and Kylie — Citizenship issues
Question A24: Karen — Citizenship issues
Question A25: Michelle Paddington — Citizenship issues
SUBJECT B: AUSTRALIA’S VISA SYSTEM
Question B1: Maria and Peter — Partner visas
Question B2: Mary and John — Parent visas
Question B3: Liz and Phil — Parent visas, balance of family
Question B4: Martha and Wayne — Parent and retirement visas
Question B5: Harry and Hermione — Family visas and assurance of support
Question B6: John Lawless — Permanent employment visas
Question B7: Fox Mulder — Temporary and/or permanent employment visas
Question B8: Cedric Chaudry — Temporary employment visas
Question B9: Ludwig Von — Employment, health requirements
Question B10: Westland Constructions — Sponsor obligations
Question B11: Marj d’Barge — General skilled migration, Job Ready Program and Offshore Skills Assessment Program
Question B12: Paddy and Cathy — Skilled visas and points test
Question B13: Peter Pan — Work and skilled visas
Question B14: Eugene Ivanoff — General skilled migration
Question B15: Jonathan Swift — ETA and business talent
Question B16: Nathan Yahoo — Business skills visas
Question B17: Pauline Smith — Business skills visas
Question B18: Paul Inenn’söhn — Business skills visas and dependent child
Question B19: Joanne Field — Student and dependants
Question B20: Ruchitta Riches and Speedy Gonzales — Student and work rights
Question B21: Johnny Will — Refugee status
Question B22: Mary Kaur — Protection visas
Question B23: Anya Kornikov — Protection visas
Question B24: Karim Sepehr — Refugee status
Question B25: Ali Hasan — Visitor, medical treatment visas and work
Question B26: Yessir Ararat — Bridging visas
Question B27: Delia Llama — Bridging visas
Question B28: Nelson Mondoza — Bridging visas
Question B29: Joh Bielkesen — Resident return visas
Question B30: Grace Whitelaw — New Zealand citizens
SUBJECT C: VISA COMPLIANCE, CANCELLATION AND REVIEW
Question C1: Dulbar Singh — General visa cancellation
Question C2: Ngo Dinh Nhu — Visa cancellation on incorrect information
Question C3: David Higson — Cancellation and freedom of information
Question C4: Freddy Kruger — Visa cancellation, s 501 and review
Question C5: Harriet Harilela — Student visa and student visa cancellation
Question C6: Fu Man Chu — Compliance mix
Question C7: Placido Flamingo — Unlawfuls and exclusion periods
Question C8: Win Shum and Lu Shum — Detention and residence determinations
Question C9: Paul Domingo — Merits review
Question C10: Sergio Mendese — Refugee, compliance, AAT
Question C11: Lin Tung Hoa — Refugee and review
SUBJECT D: APPLIED MIGRATION LAW AND PRACTICE
Question D1: Abdullah Bin Aladdin — Protection visas and family reunion
Question D2: Arriveda Ciroma — Partner visas and family violence issues
Question D3: Brigitte La Deux — Complex case and ethical issues
Question D4: Forrest Gumpf — Family migration and assurance of support
Question D5: Manuel La Pagayo — Complex case and merits review
Question D6: Brittney Pears — 8503 waiver submission
Question D7: Mr Perez — Client communication
Question D8: Ms Winslow — Migration practice management
Ahmed file
Jose file
Question D9: Jane Marple — Migration practice management
Parker Pyne
Ariadne Oliver
Question D10: Fees
Question D11: Fees
Question D12: Ms Xu — Fees
Question D13: File practice management
Question D14: Nguyen — File practice management
Question D15: Sharni Kaur — Priority processing, AAT
Question D16: Ronaldo Esposito — Sponsorship and Sch 3 issues
Question D17: Ernest Hemingwood — Partner visas, Sch 3 issues and compelling reasons
Chapter 4 Suggested Answers to Scenario Discussion Questions
SUGGESTED ANSWERS TO QUESTIONS ON SUBJECT A: AUSTRALIAN MIGRATION LAW
Question A1: Definition of terms
Question A2: Johnny Begood
Question A3: Johnny El-Kreiky
Question A4: Virginia Woolf
Question A5: Jason, new registered migration agent
Question A6: Bilbar
Question A7: Unregistered agent
Question A8: Registered migration agent pitfalls
Question A9: Barry Barker
Question A10: Trueblue Visas and Pronto Visas
Shifty
Terry
Selene
Question A11: Registered migration agent
Question A12: Chris
Question A13: Scarlett O’Hara
Question A14: Simon White
Question A15: Amanda Yonkers
Question A16: Pierre Le Bon
Question A17: John Doh
Question A18: Ivy Nguyen
Question A19: Ricardo Taco
Question A20: June and Jackie Chan
Question A21: Maria and Gary Callas
Question A22: Helen and John
Question A23: Bill and Kylie
Question A24: Karen
Question A25: Michelle Paddington
SUGGESTED ANSWERS TO QUESTIONS ON SUBJECT B: AUSTRALIA’S VISA SYSTEM
Question B1: Maria and Peter
Question B2: Mary and John
Question B3: Liz and Phil
Question B4: Martha and Wayne
Question B5: Harry and Hermione
Question B6: John Lawless
Question B7: Fox Mulder
Question B8: Cedric Chaudry
Question B9: Ludwig Von
Question B10: Westland Constructions
Question B11: Marj d’Barge
Question B12: Paddy and Cathy
Question B13: Peter Pan
Question B14: Eugene Ivanoff
Question B15: Jonathan Swift
Question B16: Nathan Yahoo
Question B17: Pauline Smith
Question B18: Paul Inenn’söhn
Question B19: Joanne Field
Question B20: Ruchitta Riches and Speedy Gonzales
Question B21: Johnny Will
Question B22: Mary Kaur
Question B23: Anya Kornikov
Question B24: Karim Sepehr
Question B25: Ali Hasan
Question B26: Yessir Ararat
Question B27: Delia Llama
Question B28: Nelson Mondoza
Question B29: Joh Bielkesen
Question B30: Grace Whitelaw
SUGGESTED ANSWERS TO QUESTIONS ON SUBJECT C: VISA COMPLIANCE, CANCELLATION AND REVIEW
Question C1: Dulbar Singh
Question C2: Ngo Dinh Nhu
Question C3: David Higson
Question C4: Freddy Kruger
Question C5: Harriet Harilela
Question C6: Fu Man Chu
Question C7: Placido Flamingo
Question C8: Win Shum and Lu Shum
Question C9: Paul Domingo
Question C10: Sergio Mendese
Question C11: Lin Tung Hoa
SUGGESTED ANSWERS TO QUESTIONS ON SUBJECT D: APPLIED MIGRATION LAW AND PRACTICE
Question D1: Abdullah Bin Aladdin
Question D2: Arriveda Ciroma
Question D3: Brigitte La Deux
Question D4: Forrest Gumpf
Question D5: Manuel La Pagayo
Question D6: Brittney Pears
Question D7: Mr Perez
Question D8: Ms Winslow
Question D9: Jane Marple
Question D10: Fees
Question D11: Fees
Question D12: Ms Xu
Question D13: File practice management
Question D14: Nguyen
Question D15: Sharni Kaur
Question D16: Ronaldo Esposito
Question D17: Ernest Hemingwood
Index

Citation preview

Australian Immigration Companion Seventh Edition

Australian Immigration Companion Seventh Edition Professor Murray Gerkens LLB (Melb), GradCertAustImmLaw (VU) Barrister and Solicitor of the Supreme Courts of Victoria and New South Wales and the High Court of Australia Adjunct Professor of Law — Victoria University Professor Rodger Fernandez BEc, LLB (Monash), MTax (Melb), PhD (Law) (Syd) Barrister and Solicitor of the Supreme Court of Victoria and the High Court of Australia and a Solicitor of the Supreme Court of New South Wales Law Institute of Victoria Accredited Specialist Solicitor in Immigration Law Adjunct Professor of Law — Victoria University

Associate Professor Dominic Yau BA (Melb), LLB (Latrobe), GradCertAustImmLaw (VU) Barrister and Solicitor of the Supreme Court of Victoria and the High Court of Australia Adjunct Associate Professor of Law — Victoria University Sherene Ozyurek LLB(Hons) (Monash), BCom(Management) (Monash), GradCertAustImmLaw (VU) Barrister and Solicitor of the Supreme Court of Victoria and the High Court of Australia Law Institute of Victoria Accredited Specialist Solicitor in Immigration Law Lecturer — Victoria University

Janelle Kenny LLB(Hons) (Monash), BA (Monash), GradCertAustImmLaw (VU) Barrister and Solicitor of the Supreme Court of Victoria and the High Court of Australia

Lecturer — Victoria University

LexisNexis Butterworths Australia 2018

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National Library of Australia Cataloguing-in-Publication entry

Author: Title: Edition: ISBN:

Gerkens, Murray. Australian Immigration Companion. 7th edition. 9780409347524 (pbk). 9780409347531 (ebk). Subjects: Emigration and immigration law — Australia. Immigration consultants — Australia. Visas — Australia. Immigrants — Australia. Immigrants — Taxation — Australia. Other Fernandez, Rodger G. Yau, Dominic. Authors/Contributors: Ozyurek, Sherene. Kenny, Janelle. © 2018 Reed International Books Australia Pty Limited trading as LexisNexis. 6th edition, 2016 (reprinted 2017). This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in Gotham and IowanOldStyle BT. Printed by Griffin Press, Australia. Visit LexisNexis Butterworths at www.lexisnexis.com.au

Foreword to First Edition During my time as a student at the University of Melbourne Law Faculty, the lecturer on Evidence wrote and distributed an aid to study entitled ‘Questions and Solutions on Evidence’. I never discovered why he chose this particular format — perhaps it was because he was a practising barrister. I found it, by far, the most helpful material supplied to me during my course. In the succeeding years, I have read other works using the same format, and have found them uniformly successful. The beauty of this approach is that it takes the author (in this case, the authors) directly into the minds of their readers. The perennial question is ‘what do I need to know?’ Often, it is a case of ‘what do I need to know quickly?’ The authors’ chosen method is, to my mind, the ideal way to provide answers to these questions. I particularly approve the way authorities are dealt with in this work — by succinct statements of facts and of what each case stands for, before resort to judgement detail — the appropriate method for inclusion of these matters in submissions. Two quotations will amply demonstrate this: 1. ‘In Dranichnikov v Minister for Immigration & Multicultural Affairs [2001] FCA 769, (2001) 109 FCR 397 and Soondur v Minister for Immigration and Multicultural Affairs [2002] FCAFC 324, the Full Court of the Federal Court held that the inclusion of a person as a member of the family unit of an applicant was not itself the making of an application by the person included, for the purposes of s.48A, particularly in the case of a secondary applicant who is a minor. In Soondur, Gray J said, “the making of a purported application by a person who lacks capacity to make such an application will not be regarded as an application. At common law, infants (i.e. persons under the age of twenty-one) were regarded as lacking capacity to do many things, particularly to enter into contracts other than certain defined classes of contracts …”’ 2. ‘In June 1999, following the signing of an agreement that ended the conflict in Kosovo, repatriation of Kosovars housed in camps in neighbouring countries commenced. On 12 July

1999, UNHCR announced that the security situation had improved sufficiently for it to coordinate organised voluntary repatriation. In July 1999, DIAC began arranging returns of Kosovars from Australia. The visas of those who did not wish to return immediately were extended on several occasions until 28 October 1999 when the Minister wrote to all remaining Kosovar evacuees asking them to set out in writing reasons why they should be permitted to stay longer in Australia. The last extension of the temporary safe haven visa expired on 8 April 2000. On 7 April 2000, 81 Kosovar applicants sought urgent injunctive relief from the High Court to prevent the Minister from taking any actions to remove them but Gleeson CJ dismissed their applications (see Re Minister for Immigration; ex parte Fejzullahu [2000] HCA 23 (10 April 2000)).’

Of course, the ‘Questions and Solutions’ format fails if the work overall lacks comprehensiveness. In the course of two perusals, I looked in vain for any significant omissions. I was unable to find any. I congratulate the authors of this work on their efforts, which reflect in full measure an awesome sum total of their practical and theoretical experience. Professor the Hon John Harber Phillips AC QC Provost Sir Zelman Cowen Centre Victoria University

Disclaimer Every effort has been made to ensure that the material presented in this publication is accurate at the publication date shown. Nevertheless, this material is issued on the understanding that: 1.

2.

3.

The Migration Institute of Australia, Victoria University and FCG Legal Pty Ltd, their officers, authors, or any other persons or agencies involved in the preparation of this publication expressly disclaim all or any contractual, tortious, or other form of liability to any person (purchaser of this publication or not) in respect of the publication and any consequences arising from its use, including any omission made, by any person in reliance upon the whole or any part of the contents of this publication. No person should act on the basis of the material contained in this publication without obtaining advice relevant to his or her own particular situation and without considering and taking professional advice as may be necessary. The authors, consultants and/or editors are not responsible for the results of any action taken on the basis of any information contained in this publication, or of any error or material not contained in this publication, and expressly disclaim all and any liability to any person in relation to the consequences of any acts or omissions by any person in reliance upon any of the contents of this publication. This relates to any party, regardless of whether that person is the purchaser, reader, listener or any person affected by the consequences of actions by any of the preceding persons.

All legislation herein is reproduced by permission but does not purport to be the official or authorised or accurate or current version.

The law is stated as at 15 June 2017.

Preface As there have been substantial changes in the authorship of the sixth and seventh editions of the Australian Immigration Companion from that of earlier editions, it would be remiss if we did not record our appreciation of the sterling work done by former contributors who have been largely responsible for its success. When first published, the work was widely acclaimed as an authoritative, practical, easy to use contribution to immigration law practice and learning. It has now established itself as a leading publication in this area and is generally viewed as an indispensable aid to the practice and understanding of immigration law. Thank you — Andrew Cope, Chong Yu Quaik, Kong Tat (KT) Wong, Associate Professor Mary Anne Kenny, Daniel Khoury, Graciano Canda Jnr, Kevin Lane and Pamela O’Neill. We also extend our appreciation to Melanie Hastings, Jocelyn Holmes and LexisNexis Butterworths Australia for their dedication and assistance with editing and publishing this latest edition. Professor Murray Gerkens Professor Rodger Fernandez Associate Professor Dominic Yau Sherene Ozyurek Janelle Kenny College of Law & Justice Victoria University 15 June 2017 The law is stated as at 15 June 2017.

Table of Cases References are to paragraph numbers 1211530 [2013] MRTA 3430 …. 2.50

A Amin and MARA [2005] AATA 257 …. 4.82 Applicant S v Minister for Immigration and Multicultural Affairs (2004) 206 ALR 242 …. 4.68 Assaad v Minister for Immigration [2009] FMCA 722 …. 2.18

B Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285; [2005] FCAFC 77 …. 1.72, 4.85 Bui v Minister for Immigration [2015] FCCA 1931 …. 2.68

C Chai v Minister for Immigration [2011] FMCA 22 …. 2.66 Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 87 ALR 412 …. 4.51 Chen v Minister for Immigration [2013] FCAFC 133 …. 2.35

D Devarajan v MIMA [1999] FCA 796 …. 4.51

E El Ess v Minister for Immigration [2004] FCA 1038 …. 1.55, 2.18

F

Fitch v Migration Review Tribunal [2004] FCA 1673 …. 1.72 Forster and Minister for Immigration [2011] AATA 468 …. 4.65

G Griffiths and MARA [2002] AATA 247 …. 4.82

H Harrington v Minister for Immigration [2007] FCA 1287 …. 2.54 Hudson and Migration Agents Registration Authority [2004] AATA 1007 …. 4.76

K Kumar v Minister for Immigration and Ethnic Affairs (1997) 144 ALR 441 …. 1.79 Kwok v Minister for Immigration (2001) 112 FCR 94; [2001] FCA 1444 …. 2.55

L La Bara v Minister for Immigration [2008] FCA 785 …. 2.10 Le v Minister for Immigration [2007] FCAFC 20 …. 2.66 — v Minister for Immigration and Citizenship (2009) 111 ALD 460 …. 1.72

M M68/2015 v Minister for Immigration [2016] HCA 1 …. 2.14 M70/2011 & M106/2011 v Minister for Immigration [2011] HCA 32 …. 2.14 M150/2013 v Minister for Immigration; S297-2013 v Minister for Immigration [2014] HCA 27 …. 2.49 Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 …. 1.55 Minister for Immigration v Al-Sallal [1999] FCA 1332 …. 2.17 — v Gnanapiragasam [1998] FCA 1213 …. 2.17 — v Kumar [2009] HCA 10 …. 2.54

Minister for Immigration and Attorney-General v Zhang [2009] FCAFC 129 …. 2.9 Minister for Immigration and Border Protection v Kim [2014] FCAFC 47 …. 2.7 Minister for Immigration and Ethnic Affairs v Guo Wei Rong [1997] HCA 22 …. 4.51 Minister for Immigration and Multicultural and Indigenous Affairs v Kim [2004] FCAFC 329 …. 2.7 Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic [1990] FCA 22 …. 2.50 Minister for Immigration, Re; Ex parte Fejzullahu [2000] HCA 23 …. 2.16 MZYPY v Minister for Immigration [2014] FCAFC 68 …. 2.14 MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478 …. 4.85

N NAAO v Secretary, Department of Immigration and Multicultural Affairs, (2002) 66 ALD 545; 34 AAR 508; [2002] FCA 292 …. 2.55 Nair, Dharmendra [2004] MRTA 6828 …. 2.43 Ngaronoa v Minister for Immigration [2007] FCA 1565 …. 2.54 Nguyen v Minister for Immigration [2004] FMCA 551 …. 2.7

P P1/2003 v Minister for Immigration [2003] FCA 1029 …. 2.14 Paduano v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 211 …. 4.85 Paul Noel Dainty and Minister for Immigration and Ethnic Affairs, Re (1987) 6 AAR 259; 12 ALD 416 …. 4.27 Plaintiff B9/2014 v Minister for Immigration [2014] FCCA 2348 …. 2.14 Plaintiff M61 v Commonwealth of Australia; Plaintiff M69 v Commonwealth of Australia [2010] HCA 41 …. 2.14

R Rajendran v Minister for Immigration [1998] FCA 1085 …. 2.17 Rozsy and MARA [2005] AATA 420 …. 4.76

S S4/2014 v Minister for Immigration [2014] HCA 34 …. 2.14 Soegianto v Minister for Immigration and Multicultural Affairs [2001] FCA 1612 …. 1.55 Srour v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1228 …. 1.72 SZHUS v Minister for Immigration [2007] FCA 64 …. 2.66 — v — [2007] HCA Trans 641 …. 2.66 SZQAN v Minister for Immigration [2011] FMCA 501 …. 2.7 SZSJA v Minister for Immigration and the Refugee Review Tribunal [2013] FCAFC 158 …. 2.39

T Tejani and MARA [2009] AATA 240 …. 4.82 Thiyagarajah v Minister for Immigration [1997] FCA 1494 …. 2.17 Tran v Minister for Immigration [2006] FCA 1229 …. 1.55 Twinn v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 840 …. 1.77

W Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 …. 4.85 Wong v Minister for Immigration [2002] FCA 959 …. 2.55 Wu v Minister for Immigration [2001] FCA 89 …. 2.55

X Xie v Minister for Immigration and Multicultural Affairs (2000) 61 ALD 641; [2000] FCA 230 …. 1.55

Y

Yazbeck v Minister for Immigration and Multicultural Affairs [2002] FCA 980 …. 1.72 Yusup v R [2005] NTCCA 19 …. 2.10

Z Zhang v Minister for Immigration [2009] FMCA 196 …. 2.9 — v — (No 2) [2009] FMCA 458 …. 2.9

Table of Statutes References are to paragraph numbers Please note that Chapter 1 comprises a summary of migration law, and thus the Migration Act and Regulations have not been tabled for that chapter.

Commonwealth Acts Interpretation Act 1901 …. 1.9 s 15AA …. 1.9 s 15AB …. 1.78 s 18A …. 1.9, 1.75 s 22(1)(f) …. 1.71 Australian Border Force Act 2015 …. 2.20 Australian Citizenship Act 1948 …. 4.22, 4.27 s 13(4)(b)(iv) …. 4.27 s 13(9)(c) …. 4.27 s 17 …. 4.24 Australian Citizenship Act 2007 …. 1.4, 3.26, 4.16, 4.18, 4.21, 4.27, 4.56 s 3 …. 4.25 s 12 …. 4.25, 4.26 s 12(1)(a) …. 4.26 s 12(1)(b) …. 4.25 s 16(2) …. 4.23 s 16(3) …. 4.17 s 16(3)(c) …. 4.17 s 21 …. 4.19, 4.27 s 21(2)(g) …. 4.16, 4.21 s 21(4) …. 4.20

s 21(5) …. 4.20 s 21(8) …. 4.26 s 22 …. 4.19, 4.22, 4.27, 4.56 s 22(1) …. 4.21 s 22(1)(a) …. 4.18 s 22(1)(b) …. 4.18 s 22(1)(c) …. 4.21, 4.27 s 22(1A) …. 4.16, 4.27 s 22(1B) …. 4.22 s 22(6) …. 4.27 s 22(9) …. 4.18, 4.21, 4.22 s 22(9)(a) …. 4.18 s 22(9)(d) …. 4.21 s 22C …. 4.27 s 23A …. 4.22 s 24(5) …. 4.21 s 29(3)(a)(i) …. 4.24 s 29(3)(b) …. 4.24 s 46 …. 4.27 s 52 …. 4.23, 4.65 Australian Citizenship Regulations 2007 Sch 3 Item 14A …. 4.27 Australian Citizenship (Transitional and Consequentials) Act 2007 …. 4.18 Australian Competition and Consumer Act 2010 …. 4.5 Commonwealth of Australia Constitution Act 1900 …. 1.4 s 51 …. 1.4 s 51(xix) …. 1.4 s 51(xxvii) …. 1.4 s 61 …. 1.3 s 62 …. 1.3 Crimes Act 1914 …. 1.18 Criminal Code Act 1995 …. 1.5, 1.18, 4.5 Ch 2 …. 1.16 Education Services for Overseas Students Act 2000 …. 1.33, 4.62

s 20 …. 1.17, 2.67, 4.62, 4.71 Environment and Heritage Legislation Amendment (No 1) Act 2006 …. 2.10 Environment Protection and Biodiversity Conservation Act 1999 …. 2.10 Family Law Act 1975 …. 4.70 Fisheries Management Act 1991 …. 2.10 Freedom of Information Act 1982 s 11 …. 4.60 s 33 …. 4.60 Health Insurance Act 1973 …. 2.30, 2.47 Immigration (Education) Act 1971 s 4C …. 2.34 Immigration Restriction Act 1901 …. 1.13 Migration Act 1958 …. 2.1–2.3, 2.6, 2.8, 2.10, 2.12, 2.38, 2.39, 2.48, 2.49, 2.65, 2.68, 3.10, 3.11, 3.47, 3.70, 3.72, 3.75, 4.7, 4.10, 4.48 Pt 2 Div 3 …. 2.1 Pt 2 Div 3 SubDiv AA …. 2.1, 2.3 Pt 2 Div 3 SubDiv AB …. 2.1, 2.3, 2.50 Pt 2 Div 3 SubDiv AC …. 2.1, 2.3, 2.69 Pt 2 Div 3 SubDiv AE …. 2.3 Pt 2 Div 3 SubDiv AF …. 2.1 Pt 2 Div 3 SubDiv AG …. 2.1, 2.3 Pt 2 Div 3 SubDiv AH …. 2.1, 2.3 Pt 2 Div 3 SubDiv AK …. 2.3 Pt 2 Div 3 SubDiv C …. 2.3 Pt 2 Div 3 SubDiv D …. 2.3 Pt 2 Div 3 SubDiv E …. 2.3 Pt 2 Div 3 SubDiv F …. 2.3 Pt 2 Div 3 SubDiv FA …. 2.3 Pt 2 Div 3 SubDiv FB …. 2.3 Pt 2 Div 3 SubDiv H …. 2.3 s 4AA …. 4.65 s 5 …. 2.54

s 5(1) …. 4.1 s 5(2) …. 4.1 s 5(9) …. 2.73 s 5AA …. 4.1 s 5CB …. 4.24, 4.46, 4.71 s 5CB(1) …. 4.71 s 5CB(2) …. 4.71 s 5CB(4) …. 4.71 s 5F …. 4.1 s 5H …. 4.1, 4.48, 4.73 s 5H(2) …. 4.48 s 5J …. 4.48, 4.51, 4.68 s 5J(1) …. 4.51 s 5J(3) …. 4.51 s 5J(4) …. 4.68 s 5J(6) …. 4.51, 4.68 s 5L …. 4.48, 4.50, 4.68 s 5LA …. 4.50 ss 28–43 …. 2.1 s 32 …. 2.13 s 32(2)(a) …. 4.57 s 32(3) …. 4.57 s 33(10) …. 2.3 s 34(3) …. 2.3 s 35(4) …. 2.3 s 35A …. 2.8, 4.1 s 35A(2) …. 2.13 s 35A(3) …. 2.13 s 35A(3A) …. 2.13 s 36 …. 4.69 s 36(2)(aa) …. 4.51 s 37 …. 2.13 s 37A …. 2.13 s 38 …. 2.9

s 38B …. 2.13 s 39 …. 2.49 s 41(2)(a) …. 2.3, 2.18, 4.3, 4.73, 4.74 s 41(2A) …. 2.18, 4.73, 4.74 s 42(2A)(d) …. 2.8 s 42(2A)(e) …. 2.8 s 43 …. 2.3 ss 44–51 …. 2.1 s 45AA …. 2.38 s 46 …. 2.2–2.4, 2.6, 2.24, 2.50 s 46(1) …. 2.3 s 46(1)(ba) …. 4.4, 4.6 s 46(1)(c) …. 4.6 s 46(1A) …. 2.18, 4.74 s 46(2) …. 2.3, 2.14 s 46(3) …. 2.4 s 46(4) …. 2.4 s 46(5) …. 2.6 s 46A …. 2.3, 2.14 s 46A(2) …. 2.14 s 46AA …. 2.3, 2.13 s 46B …. 2.3, 2.14 s 47(1) …. 2.49, 2.50 s 47(2) …. 2.49, 2.50 s 47(3) …. 2.48, 4.6 s 47(4) …. 2.48 s 48 …. 2.2, 2.3, 2.7, 2.12, 2.50, 2.51, 2.73, 4.3, 4.29, 4.63, 4.76 s 48(1) …. 2.7 s 48(1A) …. 2.7 s 48(3) …. 2.7 s 48A …. 2.3, 2.8, 2.11 s 48B …. 2.8, 2.21, 2.41 ss 51A–64 …. 2.1

s 51(1) …. 2.37 s 52(1) …. 2.57 s 52(3A) …. 2.40 s 52(3B) …. 2.40 s 52(3C) …. 2.40 s 52(4) …. 2.57 s 54 …. 2.52 s 54(1) …. 2.52 s 55 …. 2.62 s 56 …. 2.62 s 57 …. 2.54 ss 65–69 …. 2.1 s 65 …. 2.69 s 66(2) …. 2.71 s 68 …. 2.3 ss 72–76 …. 2.1 s 72 …. 4.1 ss 77–84 …. 2.1 s 78 …. 4.65 s 82(2A) …. 2.10 s 84 …. 2.49 ss 85–91 …. 2.1 s 85 …. 2.49 s 85(1) …. 2.49 s 85(2) …. 2.49 s 86 …. 2.49 s 87 …. 2.49 s 87A …. 2.49 s 91 …. 2.49 s 91E …. 2.3, 2.15 s 91F …. 2.15 s 91G …. 2.3, 2.15 s 91K …. 2.3, 2.16 s 91L …. 2.16

s 91N …. 2.17 s 91P …. 2.3, 2.17 s 91R …. 4.68 s 94(3) …. 4.41 s 95(2)(b) …. 4.41 s 95(2)(c) …. 4.41 s 95(3)(a) …. 4.41 s 95(4) …. 4.41 s 95A …. 4.41 s 96 …. 4.41 s 104 …. 2.43, 4.59 s 105 …. 4.59 s 109 …. 2.7, 4.59 s 116 …. 2.7, 4.58 s 116(1)(a) …. 4.58, 4.62 s 116(1)(b) …. 4.58, 4.62, 4.71 s 116(1)(c) …. 4.58 s 116(1)(fa)(i) …. 4.62, 4.71 s 119 …. 4.62 s 121 …. 4.62 s 128 …. 4.58 s 133A …. 2.7, 3.67, 4.68 s 133C …. 2.7 s 134 …. 2.7 s 134B …. 4.60 s 137J …. 2.7, 4.62, 4.71 s 137Q …. 2.7 s 140 …. 4.58 s 140(1) …. 4.58 s 140E …. 4.34 s 140GB …. 4.34 s 140H …. 4.37 s 142 …. 2.9 s 160(3) …. 4.1

s 161 …. 2.3, 2.9 s 161(5) …. 2.9 s 161(6) …. 2.9 s 164B …. 2.10 s 164BA …. 2.10 s 164D …. 2.3, 2.10 s 172 …. 4.1 s 189(1) …. 2.14 s 195 …. 2.3, 2.11 s 195(1) …. 4.63 s 195(2) …. 4.63 s 195A …. 2.11 ss 197AA–197AG …. 2.11 s 197AB …. 4.65 s 197AC …. 4.65 s 198 …. 2.8, 2.14 s 198(2) …. 2.10 s 198AHA …. 2.14 s 198C …. 2.14 s 198D …. 2.14 s 200 …. 4.67 s 210 …. 4.67 s 235 …. 4.62 s 240 …. 4.8 s 240(1) …. 4.71 s 240(3) …. 4.8, 4.71 s 243(1) …. 4.71 s 243(3) …. 4.71 s 245 …. 4.71 s 245(1) …. 4.71 s 245(3) …. 4.71 s 245AG …. 4.62 s 268BD …. 4.1 s 276 …. 4.9, 4.11

s 276(1)(b) …. 4.11 s 276(3) …. 4.9 s 276(3)(c) …. 4.11 s 280 …. 4.9, 4.11, 4.12 s 280(1) …. 4.7 s 280(1A) …. 4.7 s 281(1) …. 4.7, 4.9 s 281(2) …. 4.7 s 283 …. 4.7, 4.9 s 290 …. 4.9, 4.76 s 292B(1) …. 4.8 s 303 …. 4.76 s 306AC …. 4.8 s 306AC(2) …. 4.1 s 306F(2) …. 4.8 s 306H(1) …. 4.8 s 311A …. 4.76 s 312 …. 4.8 s 312(1)(e) …. 4.8 s 312A …. 4.76 s 312B …. 2.39, 4.76 s 313 …. 4.8, 4.76, 4.78, 4.80 s 313(1) …. 4.77 s 314 …. 4.8, 4.9, 4.12, 4.82 s 314(2) …. 4.10, 4.76 s 332G …. 2.39 s 334(1) …. 4.8 s 334(2) …. 4.8 s 338(2)(a) …. 4.71 s 338(2)(b) …. 4.71 s 338(3)(c) …. 4.68 s 338(7) …. 4.66, 4.73 s 347(2) …. 4.71 s 347(2)(c) …. 4.66, 4.73

s 379C(7) …. 2.68 s 411(1)(c) …. 4.67 s 412(2) …. 4.67 s 412(3) …. 4.67 s 427(3)(a) …. 4.67 s 432(1) …. 4.67 s 432(1A) …. 4.67 s 441C(7) …. 2.68 s 473HD(7) …. 2.68 s 477(1) …. 4.67 s 477(2) …. 4.67 s 486B(3) …. 4.61 s 486B(4) …. 4.61 s 494B …. 2.65 s 494B(1A) …. 2.66 s 494C …. 2.67 s 494C(4)(a) …. 4.71 s 494C(4)(b) …. 4.66, 4.73 s 494C(7) …. 2.68 s 494D …. 2.66 s 494D(1) …. 2.40, 2.66 s 494D(5) …. 2.39, 2.65 s 495 …. 2.5 s 500(1)(a) …. 4.67 s 500(1)(b) …. 4.61 s 500(2) …. 4.67 s 500(6B) …. 4.61 s 501 …. 2.7, 2.12, 3.1, 3.60, 4.61 s 501A …. 2.7, 2.12 s 501B …. 2.7, 2.12 s 501E …. 2.3, 2.7, 2.11, 2.12 s 501E(1) …. 2.12 s 501E(1A) …. 2.12 s 501E(1B) …. 2.12

s 501F(2) …. 2.12 s 501F(3) …. 2.12 s 501F(4) …. 2.12 s 501G …. 2.72 s 503A …. 2.55, 4.60 s 503B …. 2.55 Sch 3 …. 3.1, 3.87, 3.88 Migration Agents Regulations 1998 …. 1.56, 3.10, 3.11, 3.70 reg 3 …. 4.1 reg 3A …. 4.1 reg 3K(1) …. 4.7 reg 3M …. 4.7 reg 5 …. 4.1 reg 6B …. 4.8 reg 7D …. 4.8 reg 7I …. 4.8 Migration Amendment Act 2014 …. 1.21, 1.22, 2.8 Migration Amendment (Charging for Migration Outcome) Act 2015 …. 1.17 Migration Amendment (Charging for Migration Outcome) Regulations 2015 …. 1.38 Migration Amendment (Conversion of Protection Visa Applications) Regulations 2015 …. 2.38 Migration Amendment (Notification Review) Act 2008 …. 2.66 Migration Amendment Regulations 2009 …. 2.7 Migration Amendment (Strengthening Biometric Integrity) Act 2015 …. 2.3 Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 …. 2.14 Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 …. 1.16, 1.23, 2.6, 2.8, 2.13, 2.16, 2.38, 2.49 Migration (Health Services) Charge Act 1991 …. 2.29 Migration Legislation Amendment (No 1) Act 2008 …. 1.22, 2.7

Migration Legislation Amendment (No 1) Act 2014 …. 2.7 Migration Legislation Amendment (Protected Information) Act 2003 …. 2.55 Migration Legislation Amendment Regulation 2012 (No 4) …. 1.63 Migration Legislation Amendment Regulation 2013 (No 1) …. 1.60, 1.61, 1.63 Migration Legislation Amendment Regulation 2013 (No 2) …. 1.63 Migration Reform Act 1992 …. 1.13, 1.14, 1.33, 2.1 Migration Regulations 1994 …. 2.12, 2.16, 2.34, 2.35, 2.38, 2.40, 4.7, 4.10 Pt 1 Div 1.5 …. 4.70 Pt 2 Div 2.2 …. 2.1 Pt 2A Div 2.19 …. 4.37 reg 1.03 …. 4.1, 4.29–4.31, 4.45, 4.46, 4.57, 4.62 reg 1.05 …. 4.1, 4.29–4.31 reg 1.05A …. 4.1 reg 1.08 …. 4.1 reg 1.08(a) …. 4.53 reg 1.09A …. 4.46 reg 1.09A(3) …. 4.71 reg 1.11 …. 4.1 reg 1.12 …. 4.45 reg 1.12(2) …. 4.45 reg 1.12(6) …. 4.46 reg 1.14 …. 4.1 reg 1.15(1)(c) …. 4.72 reg 1.15AA …. 4.73 reg 1.15A …. 4.1, 4.24, 4.45 reg 1.15B …. 4.1 reg 1.15C(2) …. 4.38 reg 1.20J …. 4.73 reg 1.20J(1) …. 4.64 reg 1.20J(2) …. 4.64 reg 1.20L(4) …. 2.18

regs 1.21–1.27 …. 4.70 reg 1.23(9)(c) …. 4.70 reg 1.23(10) …. 4.70 reg 1.24(b) …. 4.70 reg 2.03A …. 4.28, 4.71 reg 2.03A(3) …. 4.46 reg 2.05(4) …. 2.18, 4.3, 4.74 reg 2.05(4)(a) …. 4.73 reg 2.05(4)(a)(ii) …. 4.74 reg 2.05(4A) …. 2.18 reg 2.05(4AA) …. 2.18 reg 2.05(5A) …. 2.18 reg 2.06AAB …. 4.69 reg 2.07(3) …. 2.5, 4.4 reg 2.07(4) …. 2.4, 2.40, 4.3 reg 2.07(5) …. 2.5, 2.35 reg 2.05(7) …. 2.5 reg 2.07AC(1) …. 2.3 reg 2.07AH …. 2.5 reg 2.07AK(1) …. 2.3 reg 2.07AM(1) …. 2.3 reg 2.07AQ(1) …. 2.3 reg 2.08F …. 2.38 reg 2.10C …. 2.36 reg 2.11 …. 2.51 reg 2.12 …. 2.7, 2.51, 4.63, 4.76 reg 2.12(1)(a)–(b) …. 4.63 reg 2.12(1)(c) …. 4.63 reg 2.12A …. 2.15 reg 2.12C …. 2.24 reg 2.12C(5) …. 2.26 reg 2.12C(6) …. 2.26 reg 2.12C(7) …. 2.27 reg 2.12C(9) …. 2.27

reg 2.13 …. 2.59 reg 2.15 …. 2.62, 2.63 reg 2.15(2) …. 2.64 reg 2.20 …. 4.1 reg 2.59(d) …. 4.37 reg 2.61(3A) …. 4.34 reg 2.72(10AB) …. 4.34 reg 2.73(2) …. 4.34 reg 2.87B …. 4.37 reg 4.10(1)(a) …. 4.71 reg 4.10(1)(c) …. 4.66, 4.73 reg 4.13(1) …. 4.66, 4.71, 4.73 reg 4.13(4) …. 4.71, 4.73 reg 4.14(1) …. 4.66, 4.71 reg 4.23 …. 4.66, 4.73 reg 4.31(1) …. 4.67 reg 4.31B(1)(c) …. 4.67 reg 4.31B(2) …. 4.67 reg 4.31BA …. 4.67 reg 5.15 …. 4.57 reg 5.16 …. 4.57 reg 5.17 …. 4.1 reg 5.19(3)(c)(i)(A) …. 4.34 reg 5.19(4)(h)(ii)(C) …. 4.33 reg 5.19(4)(h)(ii)(F) …. 4.33 reg 5.19B …. 4.1, 4.43 reg 5.20(1)(a) …. 2.40 reg 5.41A …. 2.33 Sch 1 …. 2.2, 2.4, 2.5, 2.24, 2.29, 2.32, 2.35, 2.36, 4.41 Sch 1 Item 1104AA(2)(a) …. 2.25, 4.42 Sch 1 Item 1104AA(3) …. 4.42 Sch 1 Item 1104AA(3)(a) …. 4.42 Sch 1 Item 1104BA …. 4.43 Sch 1 Item 1108(2)(a)(i) …. 4.32

Sch 1 Item 1108(2)(a)(ii) …. 4.32 Sch 1 Item 1108(3)(a) …. 4.32 Sch 1 Item 1108A(2)(a)(i) …. 4.32 Sch 1 Item 1108A(3)(a) …. 4.32 Sch 1 Item 1108A(3)(b) …. 4.32 Sch 1 Item 1123A(1) …. 4.72 Sch 1 Item 1123B(2)(a) …. 4.53 Sch 1 Item 1123B(3)(d) …. 4.53, 4.73 Sch 1 Item 1124A …. 4.29 Sch 1 Item 1124B(1)(a) …. 4.70 Sch 1 Item 1124B(2)(a)(i) …. 4.70 Sch 1 Item 1124B(2)(a)(vii) …. 4.70 Sch 1 Item 1124B(2)(b) …. 4.70 Sch 1 Item 1124B(3)(e) …. 4.63 Sch 1 Item 1128 …. 4.56 Sch 1 Item 1128(2) …. 4.15 Sch 1 Item 1128(3)(a) …. 4.15 Sch 1 Item 1128(3)(aa) …. 4.15 Sch 1 Item 1130(2)(b) …. 4.31 Sch 1 Item 1130(3)(b) …. 4.31 Sch 1 Item 1130A …. 4.29 Sch 1 Item 1137(3)(a) …. 4.39 Sch 1 Item 1202AB …. 4.43 Sch 1 Item 1208A(3)(f) …. 4.42 Sch 1 Item 1211(1) …. 4.70 Sch 1 Item 1214C(1) …. 4.70 Sch 1 Item 1214C(3)(a) …. 4.70 Sch 1 Item 1215(1) …. 4.70 Sch 1 Item 1215(2)(a) …. 4.70 Sch 1 Item 1221A …. 4.29 Sch 1 Item 1222(1)(a) …. 4.62 Sch 1 Item 1222(1)(ca) …. 4.62 Sch 1 Item 1222(3)(f) …. 4.62 Sch 1 Item 1223A(1)(b) …. 4.34

Sch 1 Item 1223A(2)(a) …. 4.34 Sch 1 Item 1223B(2)(a) …. 4.53 Sch 1 Item 1223B(3)(d) …. 4.53 Sch 1 Item 1225(2)(a) …. 2.27 Sch 1 Item 1230(3)(a) …. 4.39 Sch 1 Item 1236(1)(a) …. 4.2, 4.4 Sch 1 Item 1236(2)(a)(i) …. 2.26 Sch 1 Item 1236(3)(3) …. 4.2 Sch 1 Item 1303(3)(d) …. 4.53 Sch 1 Item 1402(3)(b) …. 4.50 Sch 1 Item 1404(3)(a)–(c) …. 4.69 Sch 1 Item 1414(3)(e)–(4) …. 4.69 Sch 2 …. 2.50 Sch 2 Pt 010.211(2) …. 4.54 Sch 2 Pt 010.611(1)(b) …. 4.55 Sch 2 Pt 010.611(4) …. 4.54 Sch 2 Pt 020.211 …. 4.53, 4.54 Sch 2 Pt 020.212(2) …. 4.54 Sch 2 Pt 030.212(2) …. 4.53 Sch 2 Pt 030.212(3) …. 4.53, 4.55 Sch 2 Pt 030.213(3) …. 4.53 Sch 2 Pt 030.611 …. 4.55 Sch 2 Pt 040.211(b) …. 4.4 Sch 2 Pt 040.213 …. 4.4 Sch 2 Pt 040.511 …. 4.4 Sch 2 Pt 040.611 …. 4.4 Sch 2 Pt 050.212(4AAA)(b) …. 4.23, 4.65 Sch 2 Pt 050.511D …. 4.23 Sch 2 Pt 115.225 …. 4.72 Sch 2 Pt 132 …. 4.45 Sch 2 Pt 132.213(3) …. 4.45 Sch 2 Pt 132.213(6) …. 4.45 Sch 2 Pt 155.212(2) …. 4.56 Sch 2 Pt 155.212(3A) …. 4.56

Sch 2 Pt 155.212(4) …. 4.56 Sch 2 Pt 155.511(c) …. 4.56 Sch 2 Pt 157.212(2) …. 4.56 Sch 2 Pt 188.252(1) …. 4.43 Sch 2 Pt 309.226 …. 4.64 Sch 2 Pt 309.326 …. 4.64 Sch 2 Pt 444.511 …. 4.57 Sch 2 Pt 457.223(4) …. 4.34, 4.36 Sch 2 Pt 457.224(1) …. 4.36 Sch 2 Pt 461.212(2) …. 4.57 Sch 2 Pt 461.511 …. 4.57 Sch 2 Pt 500.217(1) …. 4.64 Sch 2 Pt 500.611(1)(a) …. 4.62 Sch 2 Pt 590.213 …. 4.62 Sch 2 Pt 590.312 …. 4.62 Sch 2 Pt 602.212(2) …. 4.52 Sch 2 Pt 602.212(7) …. 4.52 Sch 2 Pt 602.314 …. 4.52 Sch 2 Pt 801.221(6) …. 4.70 Sch 2 Pt 820.211(2)(d) …. 4.6 Sch 2 Pt 888 …. 4.43 Sch 3 …. 4.2, 4.29 Sch 3 cl 3005 …. 3.18 Sch 4 …. 4.47 Sch 4 cl 4006A(2) …. 4.36 Sch 4 cl 4007 …. 3.19 Sch 4 cl 4013(1)(a) …. 4.64 Sch 4 cl 4013(1)(b) …. 4.64 Sch 4 cl 4013(2)(a) …. 4.64 Sch 5 cl 5001 …. 4.64 Sch 5 cl 5002 …. 4.64 Sch 6D …. 4.39, 4.41 Sch 7A …. 4.43, 4.45 Sch 8 …. 4.73

Sch 8 Item 8104(4) …. 4.47 Sch 8 Item 8506 …. 2.40 Sch 8 Item 8533(a) …. 2.40 Social Security Act 1991 …. 4.72 s 1061ZZGA …. 4.72 s 1061ZZGD …. 4.72 s 1061ZZGG …. 4.72 Statutory Declarations Act 1959 …. 1.71 Torres Strait Fisheries Act 1984 …. 2.10

Australian Capital Territory Fair Trading Act 1992 …. 4.76

New South Wales Fair Trading Act 1987 …. 4.76

Northern Territory Consumer Affairs and Fair Trading Act …. 4.76

Queensland Fair Trading Act 1989 …. 4.76

South Australia Fair Trading Act 1987 …. 4.76

Tasmania Fair Trading Act 1990 …. 4.76

Victoria Fair Trading Act 1999 …. 4.76

Western Australia Fair Trading Act 1987 …. 4.76 s 40 …. 4.76 Partnerships Act 1895 s 16 …. 4.76 s 17 …. 4.76

Indonesia Law No 12 of 2006 on Citizenship of the Republic of Indonesia Art 4 …. 4.26

Malaysia Constitution Art 15 …. 4.26 Art 15A …. 4.26 Art 18 …. 4.26 International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment …. 4.51 Convention Relating to the Status of Refugees 1951 …. 4.48, 4.51, 4.73 International Covenant on Civil and Political Rights …. 4.51 Protocol Relating to the Status of Refugees 1967 Art 1A(2) …. 4.48, 4.73 Second Optional Protocol Aiming at the Abolition of the Death Penalty …. 4.51

Using this Text Anyone studying or practising Australian migration law will quickly realise that this area of law is extremely complex and highly prescriptive. Failure to satisfy a criterion can mean that a client will not obtain his or her desired visa or migration objective, or depending on the circumstances it will result in an application being determined as invalid. This textbook has been developed to assist migration practitioners — students, academics, lawyers, migration agents, staff of the Department of Immigration and Border Protection, parliamentarians’ staff, or anyone with an interest in migration law — to understand Australian migration law in a practical and real-life context. The book will be an invaluable companion for students studying the entry-level course prescribed by the Minister for Immigration and Border Protection. However, we also believe that practising migration agents, and newly registered lawyers, will find it a useful aid in their work and professional development. Immigration officers in Australia and overseas might also use this book for training purposes, information exchange and discussion. We hope you enjoy and learn from this and excuse any errors or omissions. The book is designed for general information only, and it should not be relied upon for the purpose of any particular case or application. Feedback from readers would be welcome. Your comments and suggestions will help us to improve the quality and relevance of the book. Please note that the scenarios and suggested answers, while current at the time of publication, may become less so as new laws or new interpretations occur. The book is structured as follows:

Chapter 1 — An introduction to Australian migration law Chapter 2 — An overview of Australia’s visa scheme and application procedures Chapter 3 — A set of scenario discussion questions classified by migration theme Chapter 4 — Suggested answers to the discussion questions

Suggested approach to using this text Before you start

Step 1

Ensure you have access to either a hard or soft copy of the essential migration legislation: the Migration Act 1958 and Migration Regulations 1994. It will also be necessary to have Internet access so you can search LEGENDcom and the Federal Register of Legislation at . Read Chapter 1, which provides a general introduction to migration law and an overview of how the Migration Act, Regulations, delegated legislation and departmental policy function. Refer to the legislation to clarify and/or cross reference points and ensure your understanding of the basic framework. Study Chapter 2, which provides an introduction to visa application procedures.

Step 2

Making a valid visa application is of fundamental importance in this field. Making an invalid application will have disastrous consequences for clients not holding a valid substantive visa. While an examination of every visa subclass is not possible in this book, provided you have a good understanding of the general concepts and procedure you will know how to approach other visa classes. Use the classification references to select specific scenarios for analysis. Read the scenario carefully, noting the key facts of the case.

Step 3

Study the legislation to determine all the requirements for the visa subclass(es). Refer to actual legislation and not a general textbook which may not be up-to-date and cannot contain all the regulatory requirements. It is also worthwhile examining the relevant policy (especially where it is consistent with that regulatory framework). Prepare answers for each part of the scenario. Ascertain the most appropriate visa subclass(es).

Step 4

To maximise full benefit from this text, we encourage you to think through the problems independently — without examining the suggested solutions. Compare your solution with the suggested answer.

Step 5

Step 6

Refer to the identified key provisions in the legislation to ensure that you understand how the suggested answer is derived and how the specific requirements function in the legislation. If you are unsure, repeat the steps again and/or seek assistance from your tutor, mentor or a colleague, or consult a basic migration textbook.

Advice on approaching migration scenario questions There are many ways in which to approach immigration issues. Our suggested process below is but one of several approaches. Until you develop your own approach we suggest you start with this one.

1. Carefully read the facts in the question to determine relevancy Some of the facts may be relevant whilst others may be irrelevant (or distractors).

2. Identify and consider the issues raised in the question By identifying issues you may be in a better position to answer the questions raised. Think about what other information you need or questions that you would ask the client. Prepare a list.

Look out for changing details, important dates and timing 3. issues Watch out for frequently changing details. New regulations coming into force may affect existing as well as new applications. For example, new laws affecting time of decision issues may affect applications submitted before the new laws took effect. Be alert to visa expiry, time limits to respond and the dates of changes in the law, etc. Changes in the skilled category could be many, including: adding/removing an occupation on the Medium and Long-term Strategic Skills List (MLTSSL) and/or the Short-term Skilled Occupation List (STSOL); changes to pass mark; or changes in points available to particular components such as English language proficiency. Calculate how many days have passed since an event occurred or before a right may end: • •

if the person is unlawful, or about to become unlawful and still holds a substantive visa; if a visa application has been refused and there are time limits for review, etc.

4. Make sure you know what the question is asking There is no use giving a technically good answer if it does not provide the information, address the issue or provide an opinion required by the question.

5. Prepare your response As the scenarios are focused on preparing students for future practice, they will often state ‘Advise the client’. Imagine the client is sitting in front of you and explain to them their circumstances and options and the process, fees and probable timeline.

6. Quote/cite the legislation or case as a source/ justification for your answer You should support your answer with relevant legislative references. You also need to explain why the provision is relevant and how it applies to the issue at hand. Ensure that you indicate whether you are citing the Act, Regulations, or a legislative instrument, etc.

7. Review your answer Check over your answer to ensure you have not missed any issues and that your spelling and citation reinforce the quality of your answer.

Contents Foreword to First Edition Disclaimer Preface Table of Cases Table of Statutes Using this Text Chapter 1

Introduction to Australian Migration Law

AUSTRALIA’S SYSTEM OF GOVERNMENT Separation of powers Australia’s Constitution UNDERSTANDING COMMONWEALTH LEGISLATION Types of legislation The relationship between levels of legislation Interpretation of legislation Important distinguishing words Derivations of the same word MIGRATION LEGISLATION EVOLUTION OF AUSTRALIAN IMMIGRATION LAW AND POLICY MIGRATION ACT 1958 Structure of the Act An overview of the Parts of the Migration Act Part 1 — Preliminary

Part 2 — Arrival, Presence and Departure of Persons Part 3 — Migration Agents and Immigration Assistance Part 4 — Offences Relating to Decisions under the Act Part 4A — Obligations Relating to Identifying Information Part 5 — Review of Part 5-Reviewable Decisions Part 7 — Review of Part 7-Reviewable Decisions Part 7AA — Fast Track Review Process in Relation to Certain Protection Visa Decisions Part 8 — Judicial Review Part 8A — Restrictions on Court Proceedings Part 8B — Costs Orders Where Proceedings Have No Reasonable Prospect of Success Part 8C — Reports on Persons in Detention for More than Two Years Part 8D — Civil Penalties Part 8E — Investigation Powers Relating to Certain Offences and Provisions Part 9 — Miscellaneous MIGRATION REGULATIONS 1994 Structure of the Regulations An overview of the Parts of the Regulations Part 1 — Preliminary Part 2 — Visas Part 2A — Sponsorship Applicable to Division 3A of Part 2 of the Act Part 3 — Immigration Clearance and Collection of Information Part 4 — Review of Decisions Part 5 — Miscellaneous Schedules to the Regulations Schedule 1 — Classes of Visas Schedule 2 — Provisions with Respect to the Grant of Subclasses of Visas

Schedule 3 — Additional Criteria for Unlawful Non-Citizens and Certain Bridging Visa Holders Schedule 4 — Public Interest Criteria Schedule 5 — Special Return Criteria Schedule 6D — General Points Test for General Skilled Migration mentioned in subregulation 2.26AC(1) Schedule 7A — Business Innovation and Investment Points Test — Attributes and Points (Business Skills (Provisional) (Class EB) Visas) Schedule 8 — Visa Conditions Schedule 9 — Special Entry and Clearance Arrangements Schedule 10 — Prescribed Forms Schedule 13 — Transitional Arrangements VISA CODES AMENDMENTS TO MIGRATION LAW POLICY: SCOPE AND LIMITATIONS MIGRATION AGENTS REGULATIONS AND CODE OF CONDUCT Part 1 — Introductory Part 2 — Immigration Assistance given by Persons not Registered Part 3 — Registered Migration Agents Part 3A — Approved Activities Part 3B — Approved Providers of Approved Activities Part 4 — Miscellaneous Part 5 — Transitional Provisions Schedule 1 — Continuing Professional Development Schedule 2 — Code of Conduct DEFINITIONS AND DEFINED TERMS Locating definitions Definitions in migration legislation

Definitions in the Act Definitions in the Regulations Cross-referencing definitions within migration legislation Definitions in other legislation Definitions in policy or case law Advice on interpreting terms in legislation 1. Study the interpretation provisions in the Migration Act and Regulations 2. Look for derivations of the word or phrase 3. Go to PAM and the MSIs to see the meaning under immigration policy 4. Check if the word or phrase or the section has been given a meaning by the courts 5. Research supplementary materials and intrinsic or extrinsic materials in the legislation 6. If there is no definition in legislation, consider whether the word has an ordinary dictionary meaning

Chapter 2 Introduction to Visa Application Procedures LEGAL PERSPECTIVE FOR MAKING A VALID VISA APPLICATION LEGISLATIVE REQUIREMENTS FOR MAKING A VALID VISA APPLICATION Section 46 requirements Schedule 1 requirements Legislative instruments LEGISLATIVE CONSTRAINTS ON MAKING A VALID VISA APPLICATION Section 48: Non-citizen refused a visa or whose visa cancelled Section 48A: Non-citizen refused a protection visa

Section 161: Criminal justice visas Section 164D: Enforcement visas Section 195: Detainees Section 501E: Refusal or cancellation of visa on character grounds Section 46AA: Some Act-based visas Sections 46A and 46B: Unauthorised maritime arrivals and transitory persons Sections 91E and 91G: CPA and safe third country Section 91K: Temporary safe haven visa Section 91P: Non-citizens with access to protection from third countries Sections 46(1A), 41(2)(a) and 41(2A): ‘No further stay’ conditions and waiver DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION (DIBP) Portfolio scope DIBP responsibilities Department structure LODGING A VISA APPLICATION Visa application charges First instalment visa application charge Base application charge and additional applicant charge Subsequent temporary visa application charge Non-Internet application charge Second instalment visa application charge Health services charge English language charge

Credit card surcharge Refund policy Prescribed arrangements for lodging visa applications Online visa applications Multiple visa applications ‘Automatic conversion’ of application Appointment of migration agent or authorised person Notifying the Minister of residential address Reference to the Minister, Secretary or Australian Border Force Commissioner Adding dependants after lodgment of application Change in circumstances Government assistance to certain visa applicants Immigration Advice and Application Assistance Scheme (IAAAS) Asylum Seekers Assistance Scheme (ASAS) Legal Aid Access to Medicare CONSIDERING THE APPLICATION Valid and invalid applications Visa capping and suspending of applications Assessing each person in the application Invitation to submit application for another visa Considering the information Information concerning health and character etc ‘Non-disclosable information’ ‘Protected confidential information’ COMMUNICATION BETWEEN THE VISA APPLICANT AND THE MINISTER

Prescribed ways of communication Who? How? What? Where? Why? Requests by the Minister for further information or to attend interview Time limits for providing information, documentation and/or to attend interview Matters for which time limits do not apply Ways the Minister may give a document to the visa applicant Correspondence sent to authorised recipient or carer of a minor Time of receipt of communication from the Minister Defective communication from the Minister NOTIFYING DECISION ON A VISA APPLICATION Approvals (visa grant) Refusals — general Refusals — character grounds Final determination of an application

Chapter 3 Scenario Discussion Questions SUMMARY SUBJECT A: AUSTRALIAN MIGRATION LAW Question A1: Definition of terms Question A2: Johnny Begood — General visa concepts Question A3: Johnny El-Kreiky — General application procedure Question A4: Virginia Woolf — General lodgment and bridging

visas Question A5: Jason, new registered migration agent — Code of Conduct Question A6: Bilbar — General concepts and Code of Conduct Question A7: Unregistered agent — Unregistered practice Question A8: Registered migration agent pitfalls — Code of Conduct Question A9: Barry Barker — Ethics and ethical conduct Question A10: Trueblue Visas and Pronto Visas — Ethics and ethical conduct Question A11: Registered migration agent — Ethics and ethical conduct Question A12: Chris — Ethics and ethical conduct Question A13: Scarlett O’Hara — Resident return visa and validity of visa applications Question A14: Simon White — Citizenship issues Question A15: Amanda Yonkers — Citizenship issues Question A16: Pierre Le Bon — Citizenship issues Question A17: John Doh — Citizenship issues Question A18: Ivy Nguyen — Citizenship issues Question A19: Ricardo Taco — Citizenship issues Question A20: June and Jackie Chan — Citizenship issues Question A21: Maria and Gary Callas — Citizenship issues Question A22: Helen and John — Citizenship and partner visa issues Question A23: Bill and Kylie — Citizenship issues Question A24: Karen — Citizenship issues Question A25: Michelle Paddington — Citizenship issues SUBJECT B: AUSTRALIA’S VISA SYSTEM

Question B1: Maria and Peter — Partner visas Question B2: Mary and John — Parent visas Question B3: Liz and Phil — Parent visas, balance of family Question B4: Martha and Wayne — Parent and retirement visas Question B5: Harry and Hermione — Family visas and assurance of support Question B6: John Lawless — Permanent employment visas Question B7: Fox Mulder — Temporary and/or permanent employment visas Question B8: Cedric Chaudry — Temporary employment visas Question B9: Ludwig Von — Employment, health requirements Question B10: Westland Constructions — Sponsor obligations Question B11: Marj d’Barge — General skilled migration, Job Ready Program and Offshore Skills Assessment Program Question B12: Paddy and Cathy — Skilled visas and points test Question B13: Peter Pan — Work and skilled visas Question B14: Eugene Ivanoff — General skilled migration Question B15: Jonathan Swift — ETA and business talent Question B16: Nathan Yahoo — Business skills visas Question B17: Pauline Smith — Business skills visas Question B18: Paul Inenn’söhn — Business skills visas and dependent child Question B19: Joanne Field — Student and dependants Question B20: Ruchitta Riches and Speedy Gonzales — Student and work rights Question B21: Johnny Will — Refugee status Question B22: Mary Kaur — Protection visas Question B23: Anya Kornikov — Protection visas Question B24: Karim Sepehr — Refugee status

Question B25: Ali Hasan — Visitor, medical treatment visas and work Question B26: Yessir Ararat — Bridging visas Question B27: Delia Llama — Bridging visas Question B28: Nelson Mondoza — Bridging visas Question B29: Joh Bielkesen — Resident return visas Question B30: Grace Whitelaw — New Zealand citizens SUBJECT C: VISA COMPLIANCE, CANCELLATION AND REVIEW Question C1: Dulbar Singh — General visa cancellation Question C2: Ngo Dinh Nhu — Visa cancellation on incorrect information Question C3: David Higson — Cancellation and freedom of information Question C4: Freddy Kruger — Visa cancellation, s 501 and review Question C5: Harriet Harilela — Student visa and student visa cancellation Question C6: Fu Man Chu — Compliance mix Question C7: Placido Flamingo — Unlawfuls and exclusion periods Question C8: Win Shum and Lu Shum — Detention and residence determinations Question C9: Paul Domingo — Merits review Question C10: Sergio Mendese — Refugee, compliance, AAT Question C11: Lin Tung Hoa — Refugee and review SUBJECT D: APPLIED MIGRATION LAW AND PRACTICE Question D1: Abdullah Bin Aladdin — Protection visas and family reunion Question D2: Arriveda Ciroma — Partner visas and family violence issues Question D3: Brigitte La Deux — Complex case and ethical issues

Question D4: Forrest Gumpf — Family migration and assurance of support Question D5: Manuel La Pagayo — Complex case and merits review Question D6: Brittney Pears — 8503 waiver submission Question D7: Mr Perez — Client communication Question D8: Ms Winslow — Migration practice management Ahmed file Jose file Question D9: Jane Marple — Migration practice management Parker Pyne Ariadne Oliver Question D10: Fees Question D11: Fees Question D12: Ms Xu — Fees Question D13: File practice management Question D14: Nguyen — File practice management Question D15: Sharni Kaur — Priority processing, AAT Question D16: Ronaldo Esposito — Sponsorship and Sch 3 issues Question D17: Ernest Hemingwood — Partner visas, Sch 3 issues and compelling reasons

Chapter 4 Suggested Answers to Scenario Discussion Questions SUGGESTED ANSWERS TO QUESTIONS ON SUBJECT A: AUSTRALIAN MIGRATION LAW Question A1: Definition of terms Question A2: Johnny Begood Question A3: Johnny El-Kreiky

Question A4: Virginia Woolf Question A5: Jason, new registered migration agent Question A6: Bilbar Question A7: Unregistered agent Question A8: Registered migration agent pitfalls Question A9: Barry Barker Question A10: Trueblue Visas and Pronto Visas Shifty Terry Selene Question A11: Registered migration agent Question A12: Chris Question A13: Scarlett O’Hara Question A14: Simon White Question A15: Amanda Yonkers Question A16: Pierre Le Bon Question A17: John Doh Question A18: Ivy Nguyen Question A19: Ricardo Taco Question A20: June and Jackie Chan Question A21: Maria and Gary Callas Question A22: Helen and John Question A23: Bill and Kylie Question A24: Karen Question A25: Michelle Paddington SUGGESTED ANSWERS TO QUESTIONS ON SUBJECT B: AUSTRALIA’S VISA SYSTEM Question B1: Maria and Peter

Question B2: Mary and John Question B3: Liz and Phil Question B4: Martha and Wayne Question B5: Harry and Hermione Question B6: John Lawless Question B7: Fox Mulder Question B8: Cedric Chaudry Question B9: Ludwig Von Question B10: Westland Constructions Question B11: Marj d’Barge Question B12: Paddy and Cathy Question B13: Peter Pan Question B14: Eugene Ivanoff Question B15: Jonathan Swift Question B16: Nathan Yahoo Question B17: Pauline Smith Question B18: Paul Inenn’söhn Question B19: Joanne Field Question B20: Ruchitta Riches and Speedy Gonzales Question B21: Johnny Will Question B22: Mary Kaur Question B23: Anya Kornikov Question B24: Karim Sepehr Question B25: Ali Hasan Question B26: Yessir Ararat Question B27: Delia Llama Question B28: Nelson Mondoza Question B29: Joh Bielkesen

Question B30: Grace Whitelaw SUGGESTED ANSWERS TO QUESTIONS ON SUBJECT C: VISA COMPLIANCE, CANCELLATION AND REVIEW Question C1: Dulbar Singh Question C2: Ngo Dinh Nhu Question C3: David Higson Question C4: Freddy Kruger Question C5: Harriet Harilela Question C6: Fu Man Chu Question C7: Placido Flamingo Question C8: Win Shum and Lu Shum Question C9: Paul Domingo Question C10: Sergio Mendese Question C11: Lin Tung Hoa SUGGESTED ANSWERS TO QUESTIONS ON SUBJECT D: APPLIED MIGRATION LAW AND PRACTICE Question D1: Abdullah Bin Aladdin Question D2: Arriveda Ciroma Question D3: Brigitte La Deux Question D4: Forrest Gumpf Question D5: Manuel La Pagayo Question D6: Brittney Pears Question D7: Mr Perez Question D8: Ms Winslow Question D9: Jane Marple Question D10: Fees Question D11: Fees Question D12: Ms Xu

Question D13: File practice management Question D14: Nguyen Question D15: Sharni Kaur Question D16: Ronaldo Esposito Question D17: Ernest Hemingwood

Index

[page 1]

Chapter 1

Introduction to Australian Migration Law 1.1 Immigration law is a fascinating area of law within which to practise — whether as a lawyer, a migration agent or a decision maker. It can be intellectually stimulating and personally fulfilling when the visa has been approved or the review application to the Administrative Appeals Tribunal has been successful. However, as it is one of the most legally complex and time critical areas, it can also be enormously challenging. The process can be stressful, not only for the visa applicant, but also for the agent. With continual changes to the law, as well as to departmental policies, procedures, personnel, forms and fees and charges, it is vital to maintain current knowledge and to review client files regularly.

[page 2]

Australia’s system of government 1.2 Australia is a parliamentary democracy. This means that we live in a society that has a constitutional system with careful checks and balances on the organs of power to ensure that all parties are accountable and subject to oversight. Australia owes its legal and judicial evolution to England. Australia was administered by the British government under direction as colonies until self-government, in the form of the Federal Constitution, was enacted as a British Act of Parliament in 1900.

Separation of powers 1.3 Australia has three different branches that make up the government. 1.

2.

The Parliament, or Legislature, fulfils the essential roles of providing popular representation, executive government, legislation, finance and expenditure, and scrutiny of government. The Legislature is made up of democratically elected members of Parliament. Members of Parliament sit in government or in opposition or as independents in the ‘cross benches’. The Executive is responsible for implementing legislation and administering the affairs of government through government departments and agencies. In a strict constitutional sense, the power lies solely with the Governor-General. • Australian Constitution Act 1901 (Cth) s 61 — Executive power The executive power of the Commonwealth is vested in

3.

the Queen and is exercisable by the Governor-General as the Queen’s representative. The power extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth. • Australian Constitution Act 1901 (Cth) s 62 — Federal Executive Council There shall be a Federal Executive Council to advise the Governor-General in the government of the Commonwealth. The members of the Council shall be chosen and summoned by the Governor-General and sworn as Executive Councillors, and shall hold office during his pleasure. In Australia, the Executive is made up of the Queen (represented by the Governor-General) and her ministers. The ministers are members of the government, and are described as members of Cabinet, or members of the Executive Council. Strictly speaking the law recognises the ministers, though in reality they are the tip of the pyramid, as they are at the head of the government agencies for which they have executive responsibility. They are responsible for their own actions and those of their departments directly through the Parliament. The Governor-General is required to give ‘assent’ to legislation by signing the legislative proposal into law after it has passed both Houses of Parliament. The Judicature, or court system, is responsible for hearing disputes between two or more parties. The end result of litigation is the handing down of judgments. These are legally enforceable and explain the laws, rights and liabilities of people. The Judiciary is made up of judges and magistrates. Members of the Judiciary are free to make independent decisions. [page 3]

These three limbs operate in an interlocking fashion. The crucial theory of the separation of powers doctrine is that members of one branch of government cannot be members of either of the other two branches. Thus, a judge cannot be an officer of a government department, and a member of Parliament cannot at the same time be a judge. In reality, however, there are sometimes overlaps between the three branches of government. One typical example is where a minister is a member of Parliament (the Legislature) and also head of a government department (the Executive). Another example is where a judge (the Judiciary) is appointed as head of a Commission of Enquiry (the Executive).

Australia’s Constitution 1.4 A constitution is a set of rules for governance. Constitutions exist in companies, community organisations and clubs as well as countries. Australia in effect comprises seven different constitutions: one for each of the six states plus its own constitution. Each constitution is set out in a separate Act of Parliament. There are also two territories: the Australian Capital Territory and the Northern Territory. These territories also have constitutions, which were developed after Federation, and were enacted by the Australian government not the British government. The Commonwealth Constitution sets out the terms under which the states agreed to Federation and the allocation of power between them. The Australian Constitution recognises two levels of government — federal and state. It gives the Commonwealth Parliament power to make laws and affirms the continued power of state Parliaments to make laws. This is why Australia is a federal system: because it has a national government along with a group of states, operating in a power-sharing arrangement. Each law of a state or Commonwealth Parliament needs to be

validly enacted by its Parliament and must be constitutional, that is, in accordance with the powers set out in the Constitution. The Commonwealth Parliament has a range of legislative powers laid out in the Constitution. If the laws are not in accordance with these powers, then they may be considered unconstitutional. Questions of whether laws are unconstitutional, such as questions of jurisdiction, conflict of laws and validity of laws, are determined by the High Court of Australia. The Commonwealth’s constitutional power is set out in the Commonwealth of Australia Constitution Act 1900 (Cth). The Constitution recognises the separation of powers. The three functions have been symbolically as well as legally divided into the first three chapters, in recognition of their inter-relationship and mutual importance. Section 51 of the Commonwealth of Australia Constitution Act 1900 is subdivided into 39 subsections and itemises the areas where the Commonwealth [page 4] Parliament has exclusive legislative power. The immigration function is set out in s 51 to be exercised exclusively by the Commonwealth Parliament, in particular s 51(xix) — naturalization and aliens, and s 51(xxvii) — immigration and emigration. These have been the constitutional basis for the Commonwealth Parliament’s passing of the Migration Act 1958 (Cth) as well as the Australian Citizenship Act 2007 (Cth). Other powers set out in s 51 include: interstate and overseas trade and commerce; taxation; postal and telegraphic service; defence; currency; banking and insurance; bankruptcy; copyright; foreign and trading or financial corporations; marriage; pensions; external affairs; and conciliation and arbitration.

[page 5]

Understanding Commonwealth legislation 1.5 Legislation attempts to present complex information in a structured way so it can be broken down into smaller, more readily absorbed pieces. Comprehension becomes easier and faster the more you study it and as you become familiar with its sequencing and language. Legislation, regardless of the area, follows defined formats and structures, whether it is migration legislation, tax legislation or the Criminal Code, for example. It is written (or drafted) by the Office of Parliamentary Counsel (previously known as the Office of Legislative Drafting and Publishing, and the Parliamentary draftsman). Most legislation is drafted by this office which is located in the AttorneyGeneral’s Department. The Office of Parliamentary Counsel works in close consultation with the legal and policy branches of each of the responsible government departments. In this chapter, when we refer to legislation, we mean not only the bills that are introduced and debated in Parliament, but all the legal materials that form part of the law. These legislative provisions comprise a range of materials in a variety of formats designed around the speed of distribution and flexibility of presentation.

Types of legislation 1.6 The legislative formats in migration law include material passed by Parliament (such as the Migration Act 1958) and associated laws that are authorised by Parliament. The primary format is an Act, which is also known as a ‘statute’ or ‘legislation’. An Act of Parliament is a proposal that has been debated and passed by a

majority of members in both Houses of the Parliament (that is, the lower House — the House of Representatives, and the upper House — the Senate). The process of making legislation must be strictly followed in accordance with the procedures of Parliament and then be signed (assented) by the Governor-General. The second type of law is delegated legislation. Regulations, also known as statutory rules, and legislative instruments are forms of delegated legislation. This type of legislation is known as ‘delegated’ because the Parliament has delegated the task of the fine detail to the Minister, who proceeds with advice from the department. There are many types of delegated legislation such as by-laws, orders, ordinances, statutory instruments, notices and proclamations. Migration Agents Registration Authority (MARA) notices are also legislative instruments. Legislative instruments, including Gazette notices, set out the fine details and tend to change frequently. There are a variety of topics covered by legislative instruments in the field of migration law including skilled occupation lists and prescribed forms. These instruments can be found by searching the Federal Register of Legislation, which was established in January 2005. This central repository is located at . [page 6]

The relationship between levels of legislation 1.7 An Act is more powerful than Regulations. The direction of influence of different types of law is shown in Figure 1.1. Government departments produce policy guidelines, which are an aid to the interpretation and application of the Act and Regulations. Migration policy guidelines are set out in the Procedures Advice Manual (known as PAM) and Migration Series Instructions (known as MSIs) issued

by the Department of Immigration and Border Protection. The decision maker at the Department or the Administrative Appeals Tribunal is bound by the Act and Regulations. However, policy guidelines in PAM and MSIs are applied unless there are reasons to ignore policy. An example would be where the policy conflicts with the Act or Regulations. Figure 1.1: Directions-of-influence pyramid

Interpretation of legislation 1.8 Very often while the meaning of a word or sentence seems clear to one person, it may be capable of different interpretations. To overcome these discrepancies and provide certainty, a wide range of techniques of statutory interpretation have evolved. It is important that you become familiar with them and that you research and consider the meaning of words carefully. While many words are defined in the legislative provisions, many others are not. If there is no definition, words are likely to have their ordinary dictionary meaning. The dictionary used is increasingly becoming an Australian one, such as the Macquarie Dictionary.

Important distinguishing words 1.9 Simple words like ‘and’ and ‘or’ can have a considerable impact on the interpretation of legislation. The Acts Interpretation Act 1901

provides guidance [page 7] in the interpretation of terminology in statutes. For example, s 15AA of the Act states: In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.

The courts have also developed a wide range of rules of interpretation to guide and provide consistency in clarifying the meaning of a provision and the application to a given fact situation. For example, the word ‘means’ implies that the meaning is restricted solely to that set out in the definitions. It is what is described as an ‘exclusive definition’ as it sets out to exclusively define a word. Sometimes this can have the effect of expanding the meaning more than the ordinary meaning of the word would imply and sometimes it can severely restrict it. On the other hand, the word ‘includes’ allows the definition listed as well as other additional interpretations. Where a definition uses the word ‘means’, the Parliament intends the definition to apply explicitly. Where a definition uses the word ‘includes’, the Parliament intends the definition to be broader and to include at least the stated definition. For example, the definition of ‘passport’ uses the word ‘includes’, probably due to the wide range of international meanings attached by different governments, and the need therefore to provide greater flexibility.

Derivations of the same word 1.10 Frequently different derivations of the same word appear in the legislation. Section 18A of the Acts Interpretation Act 1901

states: In any Act, unless the contrary intention appears, where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.

For example, PAM states that wherever ‘adopted’ or ‘adoptive’ appears in the Regulations, its meaning should be taken from reg 1.04 of the Migration Regulations 1994 (Cth).

[page 8]

Migration legislation 1.11 With a general understanding of legislation behind us, we can now focus on the migration legislation. In order to operate as a competent migration agent it is essential to be able to weave your way through the components of migration legislation that describe the eligibility criteria. You also need to understand the framework within which the criteria are set. As a result you will be introduced to complex terms and definitions. You will need to locate these terms and be able to understand how they may affect your client’s circumstances. Table 1.1: Explanation of migration framework Legislative Provision Migration Act

Migration Regulations

Explanation and Examples The Act sets out the framework or skeleton of migration law. Acts of Parliament, such as the Migration Act 1958, have been introduced and debated in Parliament. Acts commence as a Bill and after passing through both Houses and being signed by the Governor-General (known as assent) they become law. Throughout the Migration Act 1958, Parliament authorises the Minister to lay out further detail in Regulations. Regulations are not passed by Parliament but are signed by the Minister and the Governor-General. Sections 504 and 505 of the Migration Act authorise the Minister to set out the further details about visas in the Migration Regulations 1994, rather

Legislative Instruments

than require Parliament to debate the minutiae of such criteria. Nevertheless, Regulations need to be tabled in Parliament after they are made, and can be disallowed by Parliament, whereupon they would become invalid from the date of disallowance. Legislative instruments or Gazette notices allow further details that are not dealt with in the Act or Regulations to be presented in a more flexible and easily amended format. Classifications include specifications and determinations. For example: • s 85 of the Act permits specifying of visa capping of certain visas in the annual migration program; • reg 1.03 and reg 1.15I allow for specifying skilled occupations by legislative instrument, which are frequently changed in accordance with economic circumstances. [page 9]

Table 1.1: Explanation of migration framework – cont’d Legislative Provision Ministerial Directions

Explanation and Examples Ministerial directions are detailed directions to ensure consistency and uniformity. However, they cannot be inconsistent with the Act and Regulations. For example: • s 499 of the Act — allows the Minister to give directions (for example,

regarding visa cancellations on character grounds); • s 91 of the Act — allows the Minister to set the order of disposal of applications. Unlike departmental policy (PAM and MSIs), ministerial directions do have the force of law as they are issued based on a section of the Act. 1.12 Supporting these provisions are two vitally important methods for interpreting migration law. 1.

2.

Case law; that is, decisions by the various tribunals and courts such as the Administrative Appeals Tribunal, the former Migration Review Tribunal and Refugee Review Tribunal, the Federal Circuit Court, the Federal Court and the High Court. These decisions not only determine the outcome for the parties to that individual case, but, through judicial precedent, bind decision makers on all present, as well as future, matters with similar fact scenarios. Departmental policy. To assist decision makers and migration agents, the policy branches of the Department of Immigration and Border Protection in Canberra explain the operation of the law in policy instructions. This explanation allows a more consistent approach to decision-making throughout the Department’s operations. With offices in many parts of the world as well as throughout Australia, and with many of the decisions being taken at a relatively junior level, the challenge for the Department is to support their decision makers by providing helpful guides to assist on a day-to-day basis. Given departmental officers make decisions on over 2,000,000 visa applications every year, developing a policy guide is essential to achieving this objective. By studying policy, migration agents can gain useful insights into how an immigration officer is likely to approach

and decide specific legislative matters. Policy documents include the Procedures Advice Manual (PAM) and Migration Series Instructions (MSIs) for migration matters, and the Australian Citizenship Instructions (ACIs) for citizenship matters.

[page 10]

Evolution of Australian immigration law and policy 1.13 Australian immigration law has developed over more than 100 years. Table 1.2: Timeline of Australian immigration law developments

[page 11]

Migration Act 1958 Structure of the Act 1.14 The Migration Act 1958 is the major piece of legislation administered by the Minister for Immigration and Border Protection. The current set of Migration Act 1958 provisions came about as the result of a major revision flowing from the implementation of the Migration Reform Act 1992. The Migration Act’s structure starts with ‘Parts’ (the broadest area) and ends up as narrow as a subsubparagraph of a section, as shown in Table 1.3. The terms Act, Part, Division and Subdivision are referred to in title case while the smaller elements are lowercase, as shown below. Table 1.3: Structure of the Migration Act Term Part

Division

Subdivision

Example This represents a particular subject of migration law. Example: Part 2 Arrival, presence and departure of persons This represents a related topic within a particular subject of migration law. Example: Part 2 Division 3 Visas for noncitizens This represents further detail within a Division topic; that is, the area is still within that particular subject of migration law. Example: Part 2 Division 3 Subdivision C

section

subsection

paragraph

Visa based on incorrect information may be cancelled This is like a sentence in a book. It is the basic unit for setting things out. Example: section 107 This is a subset of a section. It is similar to a Subdivision within a Division in that it is a further part. A subsection is set out in Arabic numerals in brackets. Example: subsection 107(1) This is a further breakdown of a section or a subsection. It is listed in lowercase alphabetically in brackets. Example: paragraph 107(1)(b) [page 12]

Table 1.3: Structure of the Migration Act – cont’d Term subparagraph

Example This is amongst the final breakdowns and is set out in small Roman numerals in brackets.

Example: subparagraph 107(1)(b)(i) subsubparagraph This is the smallest part of the Act. It is set out in upper case letters, in brackets. Example: subsubparagraph 107(1)(b)(i)(B)

An overview of the Parts of the Migration Act 1.15 The Act is divided into several Parts, with each Part dealing with a specific aspect of migration law. It can be seen that the Act

constantly refers to ‘the Minister’. However, unless specific reference is made to ‘the Minister personally’, the term ‘Minister’ shall usually mean delegated officers of the Department of Immigration and Border Protection (DIBP), or other authorised officers in prescribed circumstances. This is similar to the term ‘the Secretary’, who is the Head of the Department and who also delegates his or her powers to officers of the Department.

Part 1 — Preliminary 1.16 Part 1 deals with some of the preliminary matters in the Act, for example, its commencement, objective, etc, and contains s 5, which gives definitions or interpretations to a list of terminologies used in the Act. It also mentions that Ch 2 of the Criminal Code applies to all offences committed under the Migration Act. Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility, and makes it an offence for a person to commit or attempt to commit or urge the commission of a breach of any provision of the Act. Some of the applicable penalties — for example, for a detainee escaping from detention — are specifically set out in the relevant sections of the Act. Following passage of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, several new sections (ss 5H–5M) have been inserted into Part 1 to redefine refugee matters according to the Australian context.

Part 2 — Arrival, Presence and Departure of Persons 1.17 Part 2 comprises the ‘bulk’ of the Migration Act, and is further divided into many Divisions and Subdivisions. •

Division 1 — Immigration status This Division provides the definitions for lawful and unlawful non-citizens, and how a person’s immigration status can be affected upon cancellation of one’s visa.

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Division 2 — Power to obtain information and documents about unlawful non-citizens This Division describes the power of the Minister to obtain and retain information and documents about unlawful noncitizens, and the consequences of non-compliance.

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Division 3 — Visas for non-citizens This Division is the most substantial Division in Pt 2 of the Act, and deals with various visas and associated provisions. It is further subdivided into the following Subdivisions: – Subdivision A — General provisions about visas describes some special kinds of visas and conditions, etc. – Subdivision AA — Applications for visas describes how visas are applied for, and the legal preconditions for making valid visa applications. – Subdivision AB — Code of procedure for dealing fairly, efficiently and quickly with visa applications describes the process for consideration of an application by the Minister, including the request for and provision of information, and communications between the Minister and applicants. – Subdivision AC — Grant of visas describes how decisions to grant or refuse visas are made and notified to applicants. – Subdivision AF — Bridging visas describes the eligibility for and provisions of bridging visas. – Subdivision AG — Other provisions about visas describes miscellaneous visa provisions, including when a visa comes into effect, when it ceases, and visa status of children born in Australia, etc. – Subdivision AH — Limit on visas describes the Minister’s powers to impose caps and limitations on certain visas.

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Subdivision AI — Safe third countries imposes restrictions on persons who have already been given protection by other ‘safe third countries’ from being able to apply for certain visas in Australia, unless a waiver is granted by the Minister personally in the public interest. Subdivision AJ — Temporary safe haven visas imposes restrictions on persons granted temporary safe haven visas from being able to apply for certain visas in Australia, unless a waiver is granted by the Minister personally in the public interest. Subdivision AK — Non-citizens with access to protection from third countries restricts persons who have already been granted protection by other countries or who have rights of residence in other countries from being able to apply for certain visas in Australia, unless a waiver is granted by the Minister personally in the public interest. Subdivision AL — Other provisions about protection visas sets out certain procedural matters in relation to protection visa applicants in Australia. Subdivision B — The ‘points’ system describes the ‘points’ system as applied in general skilled migration visas, and the operation of the ‘pass mark’ and the ‘pool mark’. Subdivision C — Visas based on incorrect information may be cancelled imposes requirements on applicants to provide true information on application [page 14]

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forms and passenger cards, and provides for the power and procedure for cancellation of visas obtained fraudulently or by providing false information. Subdivision D — Visas may be cancelled on certain grounds provides for the power and general grounds for

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cancellation of visas, and contains the provision that visa cancellation powers are not limited or affected by each other. Subdivision E — Procedure for cancelling visas under Subdivision D in or outside Australia describes the procedure for cancellation of visas in or outside Australia, including time limits for persons to respond to notices of intention to cancel their visas. Subdivision F — Other procedure for cancelling visas under Subdivision D outside Australia describes the procedure for cancellation of visas without notice for persons outside Australia, and procedures for revocation of the cancellation. Subdivision FA — Additional personal powers for Minister to cancel visas on section 109 or 116 grounds outlines the Minister’s powers to personally cancel visas under ss 109 and 116, including the natural justice requirements and the method of notification. Subdivision FB — Emergency cancellation on security grounds provides that the Minister may cancel the visas of persons who have gone overseas to join terrorist groups, and includes the natural justice requirements, revocation of cancellation procedures, and method of notification. Subdivision G — Cancellation of business visas requires persons granted business visas to provide certain information about their business activities in Australia, and provides for the cancellation of business visas under certain circumstances, and an avenue of appeal to the AAT. Subdivision GB — Automatic cancellation of student visas provides for the automatic cancellation of a student visa when the holder has been sent a notice by an education provider under s 20 of the Education Services for Overseas Students (ESOS) Act 2000 due to non-

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performance by the student. Note, however, the automatic cancellation provisions for student visas have now been repealed from the ESOS Act. Subdivision GC — Cancellation of regional sponsored employment visas provides for cancellation of Regional Sponsored Migration Scheme (RSMS) visas requiring the holder to reside in a regional area, and where the holder has not abided by the requirement of work commitments in the regional area. Subdivision H — General provisions on cancellation describes other provisions about visa cancellations, including the consequential cancellation of visas held by family members and other associated persons.

Division 3A — Sponsorship This Division came into effect from 14 September 2009 and is subdivided into eight Subdivisions. The provisions of this Division apply to a range of visas for temporary work in Australia. – Subdivision A — Preliminary provides that the sponsorship system provided for under this Division shall apply to certain prescribed kinds of visas for temporary work purposes. [page 15] –

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Subdivision B — Approving sponsors and nominations provides for the approval and terms of approval for sponsorships, nominations and work agreements under the 457 visa scheme. It also contains new provisions for labour market testing requirements for the 457 visa. Subdivision C — Sponsorship obligations provides for obligations to be met by sponsors, and possible costs to

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be borne by employers in meeting the obligations. Subdivision D — Enforcement provides for sanctions, cancellations and barring of sponsorships for those sponsors who have breached their sponsorship obligations, including provision for civil penalty (in monetary terms) for breach of sponsorship obligations. Subdivision E — Liability and recovery of amounts provides for court actions to recover outstanding amounts, with interest, from sponsors who have breached sponsorship obligations. Subdivision F — Inspector powers provides for the appointment of inspectors with significant powers to monitor the conditions at workplaces where employees with 457 visas are employed, and to make reports on their findings. Subdivision G — Application of Division to partnerships and unincorporated associations provides for sponsorships by partnerships and unincorporated associations, and the applicability of offences and civil penalties to such partners and committees of management, even if such entities cease to exist. Subdivision H — Miscellaneous prescribes circumstances under which information may be disclosed by, or to, the Minister.

Division 4 — Criminal justice visitors This Division is further subdivided into five Subdivisions, and deals with the criminal justice visitor scheme, whereby persons required to be in Australia for the purpose of administration of criminal justice — for example, to appear at a trial as a witness, or being extradited to Australia for trial — may be admitted under this scheme. Criminal justice visas are non-substantive visas. – Subdivision A — Preliminary provides interpretation of

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terms used in the Division, and the delegation of powers by the Attorney-General to authorised officials for the administration of the criminal justice visa scheme. Subdivision B — Criminal justice certificates for entry provides for Commonwealth and state criminal justice entry certificates for persons required to be in Australia for the administration of criminal justice. Subdivision C — Criminal justice certificates etc staying removal or deportation provides that a person in Australia with a criminal justice stay certificate or who is required to be in Australia for the purpose of criminal justice administration may be exempt from removal or deportation, although it does not prevent the person from being detained. Subdivision D — Criminal justice visas. There are basically two types of criminal justice visa: the criminal justice entry visa (for persons with criminal justice entry certificates) and the criminal justice stay visa (for persons [page 16]

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in Australia who have a criminal justice stay certificate or criminal justice stay warrant which is in force). This Subdivision differentiates between the two, describes the procedure for the grant of criminal justice visas, and further stipulates that persons in Australia with criminal justice entry visas are unable to apply for any other visa except a protection visa. Subdivision E — Cancellation etc of criminal justice certificates and criminal justice visas provides that if a person in Australia is no longer required for the purpose of administration of criminal justice, the person’s criminal justice certificate or warrant must be cancelled,

whereupon any criminal justice visa held by the person is also cancelled. •

Division 4A — Enforcement visas This Division provides for the grant of enforcement visas to persons required to be in Australia for law enforcement purposes. There are two types of enforcement visa, which are non-substantive visas. The first is the enforcement visa (fisheries matters) for crews of foreign fishing boats caught fishing illegally inside Australian waters, and the second is the enforcement visa (environment matters) for persons who have committed environmental offences, for example, discharging oil into the sea, or destroying the Great Barrier Reef, etc. It further provides that enforcement visas are not applicable to Australian residents.

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Division 5 — Immigration clearance This Division describes the requirement for persons entering as well as departing Australia to be immigration cleared and provide certain ‘personal identifiers’ at designated points of entry/exit, and the consequences of non-compliance. The term ‘clearance authority’ was introduced to include clearance officers as well as electronic or mechanical systems to cater for the new generation of biometric travel documents (ePassports).

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Division 6 — Certain non-citizens to be kept in immigration detention This Division provides for the holding of ‘designated persons’ (boat people who had arrived in Australia before 1 September 1994) in detention facilities, and provides that such persons are not to be detained if they have already been detained for more than 273 days.

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Division 7 — Detention of unlawful non-citizens This Division is subdivided into two Subdivisions.

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Subdivision A — General provisions describes the procedure for detaining unlawful non-citizens and certain persons whose visas are liable to be cancelled, and provides that detainees may, despite their detention, apply for visas under certain circumstances. Subdivision B — Residence determinations. This was inserted in July 2005 following a shift in government policy on mandatory detention, and empowers the Minister to make ‘residence determinations’ to allow certain detainees to reside outside detention centres under a ‘community detention’ scheme. [page 17]

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Division 7A — Offences relating to immigration detention This Division prohibits immigration detainees from escaping from detention and making or being in possession of weapons.

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Division 8 — Removal of unlawful non-citizens etc This Division is subdivided into three Subdivisions. – Subdivision A — Removal provides for the removal of unlawful non-citizens from Australia. – Subdivision B — Regional processing provides for the transfer of unauthorised maritime arrivals to regional offshore processing countries for the processing of asylum claims. – Subdivision C — Transitory persons etc provides for the transfer of persons back to Australia from offshore processing countries for temporary purposes, and also provides for the removal of dependent family members of removed persons.

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Division 9 — Deportation This Division provides for the deportation from Australia of certain non-citizens on security or criminal grounds, and the removal of their dependants upon request.

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Division 10 — Costs etc of removal and deportation This Division provides that the costs of removal or deportation of persons become a debt to the Commonwealth, and property including air tickets and valuables may be seized and used to offset such costs.

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Division 11 — Duties of Masters in relation to Crews This Division requires masters of sea-going vessels to produce identification for crew members as required, and to report absences of crew members to Immigration.

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Division 12 — Offences etc in relation to entry into, and remaining in, Australia This Division deals with certain offences under the Act, and is subdivided into four Subdivisions. – Subdivision A — People smuggling and related offences provides for offences and penalties on the organising, carriage, trafficking, concealment, harbouring, and provision of false documents in relation to the entry and remaining in Australia of unlawful non-citizens. – Subdivision B — Offences relating to abuse of laws allowing spouses etc of Australian citizens or of permanent residents to become permanent residents provides for offences and penalties on the arranging of, or entering into, or the provision of false information in relation to, sham marriages or pretended relationships for the purpose of obtaining permanent residence for non-citizens. – Subdivision C — Offences and civil penalties in relation to work by non-citizens enables the Minister to apply sanctions, including prison terms, on employers and labour suppliers who breach immigration law by employing

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people, recklessly or intentionally, who do not have permission to work or unlawful non-citizens without valid visas. Subdivision D — Offences and civil penalties in relation to sponsored visas. This was inserted as the result of the Migration Amendment (Charging for Migration Outcome) Act 2015, and provides for penalties for persons convicted of offences relating to the offering, giving, receiving or asking for a benefit in return for a ‘sponsorship-related event’ in respect of certain employer sponsored visas.

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Division 12A — Chasing, boarding etc aircraft This Division provides the power for commanders of Australian aircraft and ships to chase other aircraft, inside Australian waters and on the high seas, and to search such vessels.

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Division 12B — Reporting on passengers and crews of aircraft and ships This Division requires airline operators and ships’ captains to report on all passengers and crew, either electronically or in documentary form, by a set time before the arrival of the aircraft or ship.

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Division 13 — Examination, Search and Detention and identification This Division provides for the power and rules of entry and search of premises, vessels and persons (including strip searches), detention and disposal of items and vessels, the taking of personal identifiers and carrying out of identification tests.

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Division 13AA — Identification of immigration detainees

This Division is subdivided into three Subdivisions. – Subdivision A — Provision of personal identifiers provides for the taking of ‘personal identifiers’, including fingerprinting and digital live scanning images, from immigration detainees. – Subdivision B — How identification tests are carried out sets out the rules and procedures for the taking of personal identifiers from immigration detainees and provides for the use of power to obtain such personal identifiers as necessary. – Subdivision C — Obligations relating to video recordings of identification tests sets out the special procedures to be followed when taking video recordings in the carrying out of identification tests. •

Division 13AB — Identification of minors and incapable persons This Division is an extension of Div 13AA and prescribes special procedures for the taking of ‘personal identifiers’ from minors and ‘incapable persons’.

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Division 13A — Automatic forfeiture of things used in certain offences This Division is subdivided into five Subdivisions. – Subdivision A — Automatic forfeiture provides for the automatic forfeiture of things (vessels) used in offences involving bringing unlawful non-citizens into Australia. – Subdivision B — Seizure provides for the seizure of things used in offences involving bringing of unlawful noncitizens into Australia. [page 19] –

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forfeited prescribes the procedures to be followed in seizing things and dealing with things seized, including the disposal or destruction of condemned vessels. Subdivision D — Operation of Division provides that operation of this Division is not limited by s 260 (detained vessels) or s 261 (disposal of dilapidated vessels). Subdivision E — Minister’s order that a thing not be condemned as forfeited provides that the Minister may personally make a decision that a thing is not to be condemned as forfeited.

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Division 14 — Recovery of costs from certain persons This Division describes some provisions in relation to the recovery of costs from detainees, including the freezing of assets, etc.

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Division 14A — Monitoring compliance with student visa conditions This Division describes the monitoring and compliance of the overseas student visa scheme, and is subdivided into three Subdivisions. – Subdivision A — Preliminary contains definitions of terms and preliminary matters applicable to this Division. – Subdivision B — Notices requiring information and documents provides the power for Immigration to require education providers to furnish information and documentation about overseas students enrolled at the institution. – Subdivision C — Searching education providers’ premises provides the power to enter premises of education providers to search for and seize material with or without a warrant.

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Division 15 — General This Division describes a number of miscellaneous matters not elsewhere described in the Act, for example, the taking of

securities, administration of detention centres, etc.

Part 3 — Migration Agents and Immigration Assistance 1.18 This Part is arranged in 11 Divisions and describes requirements for registration as a migration agent and the functions of MARA. MARA, which had been an independent body administered by the Migration Institute of Australia (MIA), was absorbed into DIBP from 1 July 2009. •

Division 1 — Preliminary This Division provides the definitions of certain terms, and for the applicability of the Crimes Act 1914 and the Criminal Code.

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Division 2 — Restrictions on giving of immigration assistance and making of immigration representations This Division describes the restrictions on persons who are not registered migration agents from giving immigration assistance to clients and the associated penalties. [page 20]

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Division 3 — Registration of migration agents This Division describes the criteria for persons seeking registration as migration agents, and also provides for the refusal by MARA to register certain persons as migration agents on prescribed grounds. It also provides for disciplinary measures against migration agents, including cancellation or suspension of registration and making details of disciplinary actions publicly available, and the avenues of appeal.

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Division 3AA — Disciplining registered migration agents for engaging in vexatious activity This Division is subdivided into four Subdivisions.

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Subdivision A — Definitions contains definitions of terms used in this Division. Subdivision B — Referral of registered migration agents for disciplinary action addresses the issue of ‘vexatious activities’ of registered migration agents, and defines how ‘vexatious activities’ are measured by an agent’s visa refusal rate. It also provides for referrals of agents by the Minister to MARA, and the mandatory disciplinary actions which must be taken against those agents who are assessed as having engaged in ‘vexatious activities’. Subdivision D — Review provides for review mechanisms by sanctioned migration agents to the AAT. Subdivision E — Making disciplinary details available provides for making public the disciplinary actions taken against migration agents, and for the disclosure of such details to their clients.

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Division 3A — Documents relating to clients of inactive migration agents and deceased migration agents This Division provides that clients remain clients of inactive or deceased migration agents, and that MARA has the power to obtain documents pertaining to clients of inactive or deceased migration agents.

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Division 4 — Investigation and decision making by the Migration Agents Registration Authority This Division empowers MARA to require migration agents to provide information or to appear before it.

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Division 4A — Disciplining former registered migration agents This Division is subdivided into two Subdivisions. – Subdivision A — Complaints about provision of immigration assistance details the procedures that can be taken against persons who were, but are no longer, registered migration agents against whom complaints had been

substantiated. It empowers MARA to require former migration agents to provide information or documentation, to bar former migration agents from registration for up to five years, and to make disciplinary details publicly available. It also provides for appeal mechanisms by sanctioned persons to the AAT. [page 21] –

Subdivision B — Engaging in vexatious activity addresses the issue of ‘vexatious activities’ of former registered migration agents, and provides for referrals of former agents by the Minister to MARA, and the mandatory disciplinary actions which must be taken against those former agents who are assessed as having engaged in ‘vexatious activities’. It also provides for the making public of disciplinary details against former agents, and appeal mechanisms by sanctioned persons to the AAT.

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Division 5 — Obligations of registered migration agents This Division describes the obligations of registered migration agents in respect of MARA, clients, the Minister and review authorities, and makes reference to the Migration Agents Code of Conduct.

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Division 6 — Migration Agents Registration Authority This Division describes the constitution, function and general powers of MARA, and provides for the disclosure of personal information by and to the Authority.

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Division 6A — Registration application fees and registration status charges This Division provides for the payment of application fees and registration status charges to MARA.

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Division 7 — Other things This Division describes among other things the circumstances under which details of disciplinary actions against registered migration agents and former agents are to be removed. It also provides for the disclosure of personal information by DIBP and by review tribunals, and a timeframe for receipt by migration agents of notifications from MARA.

Part 4 — Offences Relating to Decisions under the Act 1.19 This Part provides for certain offences relating to decisions under the Migration Act; for example, in making statements that a person can influence the outcome of applications or undertaking that particular decisions can be reached upon reward.

Part 4A — Obligations Relating to Identifying Information 1.20 This Part deals with the obligatory procedures to be taken by authorities and officers in the handling of ‘identifying information’ as the result of the requirement to collect ‘personal identifiers’. It is arranged in five Divisions. •

Division 1 — Preliminary This Division describes the application and definition of terms in this Part.

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Division 2 — Accessing identifying information This Division describes the procedure for accessing personal identification information that has been collected. [page 22]

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Division 3 — Disclosing identifying information This Division describes how collected personal identification information may be disclosed to other agencies, including

foreign countries and international organisations, as well as to selected individuals or to the general public. •

Division 4 — Modifying and impairing identifying information This Division addresses the unauthorised modification or tampering of collected personal identification information.

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Division 5 — Destroying identifying information This Division addresses the destruction or retention of collected personal identification information.

Part 5 — Review of Part 5-Reviewable Decisions 1.21 This Part deals with the procedure and conduct of review by the Migration and Refugee Division of the AAT and is arranged in nine Divisions. •

Division 1 — Interpretation This Division provides the definitions of terms used in this Part.

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Division 2 — Part 5-reviewable decisions This Division specifies what immigration decisions can or cannot be reviewed by the Tribunal.

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Division 3 — Part 5-reviewable decisions: Tribunal review This Division defines the time limits and methods for lodging applications for review to the Migration and Refugee Division of the AAT, the eligibility or standing of appellants, and the power of the Tribunal to review decisions. It contains s 351 which gives the Minister a power to personally intervene in a case after it has been reviewed by the Tribunal.

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Division 4 — Part 5-reviewable decisions: Tribunal powers This Division provides for how the Tribunal should be

constituted, and how it should operate; for example, that it should be fair, just, economical, informal and quick, is not bound by technicalities and should act according to substantial justice and the merits of individual cases. •

Division 5 — Part 5-reviewable decisions: conduct of review This Division covers the conduct of review by the Tribunal; for example, in relation to the submission of documents, calling of witnesses, use of representatives, invitation by the Tribunal for persons to provide information, that its hearings are to be held in public, etc.

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Division 6 — Part 5-reviewable decisions: Tribunal decisions This Division prescribes the methods of handing down decisions by the Tribunal, and notification and publication of decisions. The Migration Amendment Act 2014 amended this Division to state that the Tribunal cannot revisit its own decision once a decision record has been made. [page 23]

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Division 7 — Part 5-reviewable decisions: offences This Division describes certain offences in relation to the Tribunal; for example, failure of witness to attend, refusal to answer questions, and contempt of Tribunal.

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Division 8 — Part 5-reviewable decisions: miscellaneous This Division provides for certain miscellaneous matters concerning operations of the Tribunal; for example, disclosure of confidential information to or by the Tribunal, publication by the Tribunal, etc.

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Division 8A — Part 5-reviewable decisions: giving and

receiving documents This Division describes how documents are to be given to or by the Tribunal. This was further amended in October 2008 to provide for procedures where the recipient is a minor.

Part 7 — Review of Part 7-Reviewable Decisions 1.22 This Part is similar to Part 5, but is concerned with the review of protection visa refusals by the Migration and Refugee Division of the AAT, and is arranged in eight Divisions. •

Division 1 — Interpretation This Division contains definitions of terms used in this Part.

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Division 2 — Part 7-reviewable decisions This Division specifies the power of the Tribunal, which can only review certain decisions concerning protection visas, and also defines the eligibility or standing of appellants. It contains s 417 which gives the Minister a power to personally intervene in a case after it has been reviewed by the Tribunal.

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Division 3 — Part 7-reviewable decisions: Tribunal powers This Division provides for how the Tribunal should be constituted, and how it should operate, that it should be fair, just, economical, informal and quick, is not bound by technicalities and should act according to substantial justice and merits of individual cases.

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Division 4 — Part 7-reviewable decisions: conduct of review This Division covers the conduct of review by the Tribunal; for example, in relation to the submission of documents, calling of witnesses, use of representatives, invitation by the Tribunal for persons to provide information, that its hearings are to be held in private, etc.

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Division 5 — Part 7-reviewable decisions: Tribunal decisions This Division prescribes the methods of handing down decisions by the Tribunal, and notification and publication of decisions. The Migration Amendment Act 2014 amended this Division to state that the Tribunal cannot revisit its own decision once a decision record has been made. [page 24]

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Division 6 — Part 7-reviewable decisions: offences This Division describes certain offences in relation to the Tribunal; for example, failure of witness to attend, refusal to answer questions, and contempt of Tribunal.

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Division 7 — Part 7-reviewable decisions: miscellaneous This Division provides for certain miscellaneous matters concerning the operation of the Tribunal; for example, disclosure of confidential information to or by the Tribunal, publication by the Tribunal, etc.

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Division 7A — Review of Part 7-reviewable decisions: giving and receiving review documents This Division was inserted in September 2008 by the Migration Legislation Amendment (No 1) Act 2008, and describes how documents are to be given to or by the Tribunal. This was further amended in October 2008 to provide for procedures where the recipient is a minor.

Part 7AA — Fast Track Review Process in Relation to Certain Protection Visa Decisions 1.23 This Part was introduced by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy

Caseload) Act 2014. It deals with the fast track review process of asylum claims by the Immigration Assessment Authority (IAA), and is arranged in eight Divisions. •

Division 1 — Introduction This Division contains definitions, deals with conclusive certificates and decisions that the Minister can specify as being reviewable, and contains a summary of the fast track review procedure.

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Division 2 — Referral of fast track reviewable decisions to Immigration Assessment Authority This Division covers the referral of fast track reviewable decisions by the Minister to the IAA, including the documents that the Minister must provide the IAA.

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Division 3 — Conduct of review This Division outlines the procedures for conducting the fast track review. It is subdivided into three Subdivisions. – Subdivision A — Natural justice requirements provides that Div 3, together with ss 473GA and 473GB, are a complete statement of the natural justice requirements in relation to IAA reviews. – Subdivision B — Review on the papers provides that reviews are to be conducted on the material provided by the Minister, with no obligation to interview the applicant, or accept or request new information. – Subdivision C — Additional information outlines the circumstances in which additional information can be requested and considered, and an invitation to comment given. [page 25]

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Division 4 — Decisions of Immigration Assessment Authority This Division covers the decision-making procedures of the IAA, including the requirements for written statements and notification.

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Division 5 — Exercise of powers and functions by Immigration Assessment Authority This Division covers the functions and powers of the IAA including practice directions and guidance decisions.

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Division 6 — Disclosure of information This Division sets out the restrictions on disclosure of certain information including information that is confidential or in the public interest.

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Division 7 — Giving and receiving review documents etc This Division sets out the procedure for the IAA to give documents and when those documents are taken to have been received.

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Division 8 — The Immigration Assessment Authority This Division outlines the composition of the IAA and the appointment of reviewers.

Part 8 — Judicial Review 1.24 This Part deals with judicial review matters, and is arranged in two Divisions. •

Division 1 — Privative clause This Division defines ‘privative clause decisions’ under the Migration Act, and specifies that certain decisions, with some exceptions, are privative clause decisions; that is, that they are final and not subject to judicial review.

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Division 2 — Jurisdiction and procedures of courts The content of this Division covers matters such as

jurisdiction of the Federal Circuit Court and the Federal Court, time limits for lodging judicial review applications, and the remittal of migration decision appeals by the High Court to the Federal Circuit Court or the Federal Court.

Part 8A — Restrictions on Court Proceedings 1.25 This Part prescribes time limits for appealing to the High Court of Australia, and restricts the initiation of multiple-party litigation (class actions) on immigration matters. It also requires the disclosure of any other appeal which has been lodged on the same subject with other courts.

Part 8B — Costs Orders Where Proceedings Have No Reasonable Prospect of Success 1.26 This Part provides that lawyers must submit certification that a case has a reasonable prospect of success before commencing litigation, and that the court [page 26] may make a costs order against a person, including a lawyer, who brings a case to litigation without due consideration of its chance of success.

Part 8C — Reports on Persons in Detention for More than Two Years 1.27 This Part requires the Secretary of DIBP to make a report to the Commonwealth Ombudsman on detainees who have been in detention for more than two years, and for the Ombudsman to make recommendations to the Minister. The Minister has to table the Ombudsman’s report in Parliament, although the Minister is not

bound by any recommendation the Ombudsman makes.

Part 8D — Civil Penalties 1.28 This Part was inserted from 14 September 2009 to supplement Pt 2 Div 3A Sponsorship, which deals with the 457 visa scheme, and provides for civil penalty proceedings. It is arranged in three Divisions. •

Division 1 — Obtaining a civil penalty order This Division provides that the Minister may take civil procedure against a person who has contravened a civil penalty provision within six years of the wrongdoing.

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Division 2 — Civil proceedings and criminal proceedings This Division provides that a person may not be prosecuted under both civil and criminal proceedings for substantially the same offence, nor be required to pay two separate pecuniary penalties for substantially the same conduct.

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Division 3 — Miscellaneous This Division provides that a series of contraventions of civil penalty provisions of the same or similar character may be joined, and that a court may impose a single penalty order for the series of contraventions rather than separate ones for each.

Part 8E — Investigation Powers Relating to Certain Offences and Provisions 1.29 This Part has three Divisions that cover the powers of authorised officers, including obtaining search warrants, searching premises and seizing evidence. •

Division 1 — Preliminary This Division contains relevant definitions for Pt 8E.

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Division 2 — Requiring persons to give information or

produce documents This Division explains the circumstances in which a notice can be given to produce documents or provide information in relation to a possible work-related offence. [page 27] •

Division 3 — Search warrants This Division outlines the requirements for the issue and execution of search warrants and is subdivided into eight subdivisions. – Subdivision A — Search powers outlines the search powers of authorised officers who enter premises either by consent or with a search warrant. – Subdivision B — Powers of authorised officers to ask questions and seek production of documents outlines the circumstances in which an authorised officer can ask questions and ask for documents while on the premises either by consent or with a search warrant. – Subdivision C — Obligations and incidental powers of authorised officers outlines the procedures to be followed by the authorised officers for obtaining consent and executing a search warrant. – Subdivision D — Occupier’s rights and responsibilities details the occupier’s right to observe the execution of the search warrant and their responsibility to provide facilities and assistance to the authorised officer. – Subdivision E — General provisions relating to seizure outlines the requirements for copying, returning, retaining and disposing of things seized by the authorised officer. – Subdivision F — Issue of search warrants details the process for applying for and issuing search warrants.

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Subdivision G — Identity cards details the requirements for identity cards, including that authorised officers must carry their identity card at all times. Subdivision H — Powers of issuing officers details the powers, protections and immunities of search warrant issuing officers.

Part 9 — Miscellaneous 1.30 This Part covers miscellaneous matters not elsewhere described. It is arranged in two Divisions. •

Division 1 — Bogus documents This Division addresses the prohibition, seizure and forfeiture of bogus documents.

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Division 2 — Other This Division deals with other miscellaneous matters, including a description of ways the Minister may give a document to a recipient and when the recipient is taken to have received the document. This Division also provides for special powers of the Minister to cancel visas on character grounds.

[page 28]

Migration Regulations 1994 1.31 The Migration Regulations 1994 supplement the Migration Act 1958. Whilst the Act provides the skeleton, or ‘framework’, it does not contain the muscles and ligaments that make the system operate on a day-to-day administrative basis. For example, the Migration Act talks about a system of visas and applications, but it is the Migration Regulations that provide the details as to the classes and subclasses of visas, and the cost and formats for making visa applications, etc. The Migration Regulations provide the technical details for the efficient operation of the Act, including the detailed description of more than 100 different visas and the criteria for their grant, as well as prescribing fees and procedures for making valid visa applications, and appeal procedures, etc. The requirements were set out initially in policy until 1989, when the criteria were codified into law. While the content of the 1989 Regulations was accurate, they were restructured in 1993 and then again in 1994. The structure and presentation remain essentially the same today. The Regulations are divided into five Parts and 11 Schedules. The rules about referral to the terms ‘Minister’ and ‘Secretary’ are the same as for the Migration Act.

Structure of the Regulations 1.32 The Migration Regulations’ structure starts with ‘Parts’ (the broadest) and ends with subsubparagraphs of individual regulations. The terms Regulations, Part, Division and Subdivision are referred to in title case while the smaller elements are lowercase, as shown in Table 1.4.

Table 1.4: Structure of the Migration Regulations Term Part Division

Subdivision

regulation

Example This represents a subject of migration law. Example: Part 2 Visas This represents a topic within a particular subject of migration law. Example: Part 2 Division 2.9 This represents further detail within a Division topic. That is, the area is still within the particular subject of migration law. Example: Part 3 Division 2.9 Subdivision 2.9.2 This is similar to the role of a section in an Act of Parliament. It is the basic building block for setting things out. Example: regulation 2.43 [page 29]

Table 1.4: Structure of the Migration Regulations – cont’d Term subregulation

paragraph

Example This is a subset of a regulation. It is similar to a Subdivision within a Division, in that it is a further part. A subregulation is set out in Arabic numerals in brackets. Example: subregulation 2.43(1) This is a further breakdown of a regulation or a subregulation when the occasion requires it. It is listed in lowercase alphabetically in brackets.

subparagraph

Example: paragraph 2.43(1)(a) This is amongst the final breakdowns and is set out in small Roman numerals in brackets.

Example: subparagraph 2.43(1)(a)(i) subsubparagraph This is the smallest part of a regulation. It is set out in upper case letters in brackets. Example: subsubparagraph 2.43(1)(a)(i) (B)

An overview of the Parts of the Regulations Part 1 — Preliminary 1.33 This Part covers the ‘preliminary’ matters of the Migration Regulations, including definitions of various terms used in the Regulations. It is arranged in seven Divisions. •

Division 1.1 — Introductory This Division provides that this set of Migration Regulations 1994 (Cth) commenced on 1 September 1994, which was the date when the Migration Reform Act 1992 caused the Migration Act 1958 to be completely rewritten and renumbered.

•

Division 1.2 — Interpretation This Division provides definitions or interpretations of a list of terms used in the Regulations. Apart from reg 1.03 which defines certain terms generally, there are a number of other regulations addressing specific terms; for example, reg 1.15A deals exclusively with the essential ingredients for a ‘spouse’ relationship, while regs 1.15B–1.15F specify the various levels of English language proficiency.

•

Division 1.3 — Administration This Division describes the administrative functionality of

certain matters elsewhere provided for in the Regulations. [page 30] •

Division 1.4 — Sponsorship not applicable to Division 3A of Part 2 of the Act This Division describes the responsibilities to be assumed by sponsors, primarily in the family migration and refugee and humanitarian visa categories.

•

Division 1.4B — Limitation on certain sponsorships under Division 1.4 This Division describes the circumstances in which a limitation is placed on the number of persons who can be sponsored by a sponsor.

•

Division 1.5 — Special provisions relating to family violence Family violence can be an important consideration in the processing of certain migration applications, especially in the partner visa context. This Division describes how family violence claims are dealt with.

•

Division 1.6 — Immigration Minister’s suspension certificate under Education Services for Overseas Students Act 2000 This Division defines a ‘prescribed non-citizen’ as applicable under the ESOS Act.

Part 2 — Visas 1.34 Similar to Pt 2 of the Migration Act 1958, Pt 2 of the Migration Regulations 1994 can be described as the most substantial part of the Regulations in that it contains provisions for dealing with different types of visas. It is arranged in 11 Divisions.

•

Division 2.1 — Classes, criteria, conditions, etc This Division describes the visa structure of classes and subclasses, and prescribes criteria, conditions, etc for visas.

•

Division 2.2 — Applications This Division describes how visas are applied for, and how certain applicants are deemed to have applied for particular types of visas in certain circumstances.

•

Division 2.2A — Visa application charge This Division describes the procedure for payments and refunds of first and second instalment visa application charges. The visa application charge now comprises the basic application charge (for the primary applicant), additional applicant charge (for secondary applicants), non-Internet application charge (payable if an application for a prescribed visa can be made online but the applicant chooses to lodge a paper application), and subsequent temporary visa application charge (where the applicant holds a prescribed temporary visa and is applying for a further temporary visa onshore).

•

Division 2.2B — Priority consideration of certain visa applications on request This Division prescribes the circumstances in which applicants for prescribed visas who hold prescribed passports can apply for priority consideration of their application. [page 31]

•

Division 2.3 — Communication between applicant and Minister This Division prescribes the ways applicants must correspond with the Minister, and prescribes periods for making responses to invitations to give information.

•

Division 2.5 — Bridging visas This Division augments the Migration Act concerning bridging visa matters, including further definitions of eligible non-citizens, and how bridging visas are granted in certain circumstances.

•

Division 2.5A — Special provisions relating to certain health criteria This Division prescribes the procedure for referral of migrant medicals to Medical Officers of the Commonwealth (MOC).

•

Division 2.6 — Prescribed qualifications — application of points system This Division provides an expansion on provisions under the Migration Act in relation to the ‘points test’, and prescribes authorities for assessment of skills, how the points test is to be administered, how scores of spouses may be combined in certain circumstances, etc.

•

Division 2.8 — Special purpose visas This Division explains the persons who have prescribed status for special purpose visas under s 33(2)(a) of the Migration Act 1958.

•

Division 2.9 — Cancellation or refusal to grant visas This Division prescribes matters pertaining to the cancellation of visas on various grounds under the Migration Act 1958, and is further subdivided into three Subdivisions. – Subdivision 2.9.1 — Cancellation under Subdivision C of Division 3 of Part 2 of the Act expands on provisions under the Migration Act 1958 in relation to cancellation of visas obtained by provision of false information and/or documentation. – Subdivision 2.9.2 — Cancellation generally expands on provisions under the Migration Act in relation to general powers and grounds for cancellation of visas, and

–

•

prescribes time limits for persons to respond to notices of intention to cancel or notice of cancellation of visas. Subdivision 2.9.3 — Refusal or cancellation on character grounds expands on provisions under the Migration Act 1958 in relation to refusal or cancellation of visas on character grounds, how the AAT notifies the Minister that an application for review has been received by the Tribunal, and revocations of the cancellation decision by the Minister.

Division 2.10 — Documents relating to cancellation of visas This Division describes how notices of visa cancellations and/or revocations are to be given to the affected party, and when the person is taken to have received it. [page 32]

Part 2A — Sponsorship Applicable to Division 3A of Part 2 of the Act 1.35 This Part was inserted with effect from 14 September 2009, and replaces the old Divs 1.4A and 1.4C. It is divided into 14 Divisions and describes the provisions for sponsorships and nominations in relation to the 457 temporary work (skilled) visa and other visas for temporary work in Australia. •

Division 2.11 — Introductory This Division defines certain terms used in this Part.

•

Division 2.12 — Classes of sponsors This Division defines the classes of sponsors covered in this Part to be sponsors for the 457 temporary business visa and a range of other temporary visas for employment or training purposes.

•

Division 2.13 — Criteria for approval of sponsor This Division sets out the criteria for approval as sponsor for the 457 temporary business visa and other temporary visas for employment or training purposes.

•

Division 2.14 — Application for approval as a sponsor This Division sets out the procedures, forms and charges for making applications for approval as sponsor.

•

Division 2.15 — Terms of approval of sponsorship This Division sets out the terms and limitations for sponsorship approvals.

•

Division 2.16 — Variation of terms of approval of sponsorship This Division sets out the process and criteria for variation of a standard business sponsorship approval for a 457 visa and a range of other temporary visas for employment or training purposes.

•

Division 2.17 — Nominations This Division sets out the process, criteria and period of approval of nominations for the 457 visa and the 407 (training) visa.

•

Division 2.18 — Work agreements This Division prescribes the requirements agreements in s 140GC of the Migration Act.

•

for

work

Division 2.19 — Sponsorship obligations This Division describes in detail the various obligations to be fulfilled by a sponsor, including cooperation with workplace inspectors, providing equivalent terms and conditions of employment, paying travel costs of the nominee, paying costs to the Commonwealth incurred in locating the nominee, keeping records and producing such to the Minister or the Department, ensuring the nominee has a commensurate standard of accommodation, ensuring the nominee does not

work in another occupation, and the obligation not to recover costs from the nominee. [page 33] •

Division 2.20 — Circumstances in which sponsor may be barred or sponsor’s approval may be cancelled This Division provides for barring or cancellation of sponsorship approval where the sponsor has breached sponsorship obligations, provided false information, committed contravention of law, changed the professional development program without permission, or otherwise no longer meets the criteria for sponsorship approval.

•

Division 2.21 — Process to bar sponsor or cancel sponsor’s approval This Division prescribes the process to be followed when barring or cancelling a sponsor’s approval is contemplated.

•

Division 2.22 — Waiving a bar on sponsor’s approval This Division describes the circumstances, criteria and process for waiving a bar on a sponsor’s approval.

•

Division 2.22A — Inspectors This Division prescribes appointment workplace inspectors.

•

and

powers

of

Division 2.23 — Disclosure of personal information This Division describes the circumstances and the type of personal information which may be disclosed to third parties by the Minister.

Part 3 — Immigration Clearance and Collection of Information 1.36 This Part is arranged in four Divisions, and augments the Migration Act in matters relating to immigration clearances and

collection of ‘personal identifiers’. •

Division 3.1 — Information to be given This Division describes the requirement for all persons arriving in Australia to complete passenger cards and to produce documents of identification, for example passports, upon entry.

•

Division 3.2 — Information about passengers and crew on overseas vessels This Division describes the requirement for masters and operators of ships and aircraft entering or departing Australia to provide information about their crew and passengers prior to arrival at, or upon departure from, Australia.

•

Division 3.3 — Examination, search and detention This Division prescribes the information relating to personal identifiers that must be given by all non-citizens upon request.

•

Division 3.4 — Identification of immigration detainees This Division prescribes the information relating to personal identifiers that must be given by immigration detainees. [page 34]

Part 4 — Review of Decisions 1.37 This Part is an extension of Pts 5 and 7 in the Migration Act 1958 in that it prescribes certain matters in relation to applications for review to the Migration and Refugee Division of the AAT. It is arranged in four Divisions. •

Division 4.1 — Review of decisions other than decisions relating to protection visas This Division prescribes matters such as AAT review

application fees and time limits for lodging reviews, and provides for expedited review in certain circumstances. •

Division 4.2 — Review of Part 7-reviewable decisions Further subdivided into two Subdivisions, this Division prescribes matters specifically applicable to review of protection visa decisions by the Migration and Refugee Division of the AAT and the IAA. – Subdivision 4.2.1 — Introductory provides for interpretation of terms in Div 4.2 to be the same as that in the corresponding Part in the Migration Act. – Subdivision 4.2.3 — General outlines the procedures of the AAT, including making an application, fees and prescribed time periods.

•

Division 4.3 — Service of documents This Division prescribes how decisions of the AAT are to be notified to review applicants.

•

Division 4.4 — Review of protection visa decisions by the Immigration Assessment Authority This Division provides time limits for an applicant to provide information upon invitation by the IAA, and sets out the directions the IAA is permitted to make on remittal in respect of protection visa applications.

Part 5 — Miscellaneous 1.38 This Part addresses ‘miscellaneous’ matters, and is arranged in 13 Divisions. •

Division 5.1 — Service of documents This Division prescribes how correspondence is to be given to persons in detention.

•

Division 5.2 — Procedure prescribed authorities

of

commissioners

and

This Division describes the procedures in relation to the appearance of, and protection for, witnesses appearing before Commissioners. This applies only in matters relating to criminal deportations under s 203 of the Migration Act 1958. •

Division 5.3 — General This Division prescribes procedures for certain other matters not elsewhere described in the Regulations; for example, about the criteria to be applied in employer nominations in reg 5.19, and complying investments for the significant investment visa in reg 5.19B. [page 35]

•

Division 5.3A — Offences and civil penalties in relation to work by non-citizens This Division describes the offences and penalties applicable in relation to persons who employ non-citizens or who refer non-citizens for work where that non-citizen is not eligible to work in Australia.

•

Division 5.3B — Offences and civil penalties in relation to sponsored visas This Division was inserted as the result of the Migration Amendment (Charging for Migration Outcome) Regulations 2015 (Cth). It sets out the classes of sponsors and kinds of sponsored visas and defines the meaning of ‘sponsorshiprelated event’ in relation to certain employer sponsored visas.

•

Division 5.4 — Infringement notice penalties This Division prescribes penalties for offences against certain sections of the Migration Act for which an infringement notice has been issued to the offender.

•

Division 5.5 — Infringement notices

This Division prescribes procedures for the issuing of infringement notices against persons in breach of provisions of certain Parts of the Migration Act. •

Division 5.6 — Miscellaneous This Division describes certain ‘miscellaneous’ procedures; for example, in relation to search warrants, medical treatment for persons in detention, etc.

•

Division 5.6A — Powers under an agreement or arrangement with a foreign country This Division prescribes certain procedures under some circumstances where an international arrangement is applicable.

•

Division 5.7 — Charges and fees This Division prescribes the fees payable for certain matters; for example, in relation to sponsorship and employer nomination, assessment of qualifications, etc.

•

Division 5.8 — Multiple parties in migration litigation This Division prescribes certain matters in Pt 8A of the Migration Act in relation to multiple-party litigation (class actions) in judicial review.

•

Division 5.8A — Review of these Regulations This Division prescribes the regularity of reviews of the Regulations and the timeframes in which they must be conducted.

•

Division 5.9 — Transitional arrangements This Division was inserted on 1 July 2012 to ensure that matters which had existed (for example, applications lodged) prior to certain dates will continue to be processed in accordance with legislation applicable immediately before the date that the amendments take place.

Schedules to the Regulations 1.39 We have discussed how the Migration Regulations 1994 contain technical and ‘mundane’ aspects of how immigration legislation should be administered. [page 36] Further detailed descriptions of these ‘mundane’ aspects, and how each criterion is to be applied to a relevant visa application, are provided for in the Schedules to the Migration Regulations. Most decision makers, migration agents and even applicants, focus most of their time in reading the visa criteria in the Schedules. While these address most of the issues, there are some essential elements that appear outside of the Schedules. For example, reg 2.07(4) specifies that an application is not a valid application within the meaning of ss 45 and 46 of the Migration Act unless the person has listed a residential address on the approved form. It is therefore essential to have an understanding of all aspects of the migration law framework.

Schedule 1 — Classes of Visas 1.40 The Migration Act provides for a range of visas at ss 30–38A, and the Regulations allow for these to be set out in a more convenient form in the Migration Regulations. The Australian visa structure is made up of visa classes and subclasses. A visa class may consist of a number of visa subclasses. Schedule 1 deals with visa classes, and is probably the most critical of the Schedules to the Migration Regulations. The underlying subclasses are set out in Sch 2. Failure to meet all of the Sch 1 criteria for a particular visa class

will mean the application is invalid and will not be considered. At the very start of Sch 1, in the Notes, it is stated: This Schedule sets out the specific ways in which a non-citizen applies for a visa of a particular class. An application that is not made as set out in this Schedule is not valid and will not be considered.

Schedule 1 is divided into four Parts, each Part dealing with particular ‘types’ of visa classes: • • • •

Part 1 — Permanent visas Part 2 — Temporary visas (other than bridging visas) Part 3 — Bridging visas Part 4 — Protection, refugee and humanitarian visas.

Schedule 1 prescribes all of the conditions that must be satisfied before an application for a particular visa class can be validly made, and its provisions are reflected in s 46 of the Migration Act 1958. For example, Sch 1 sets out the first and second instalment visa application charges and where the applicant must be at the time of application. Sch 1 also refers to the relevant legislative instrument that details the specific application form (note, however, it makes no mention of other required forms (for example, sponsorship forms)), as well as the place or method of lodgement for that particular class. Unless a visa application can meet ALL the criteria as set out in this Schedule, as well as all of [page 37] the criteria in the associated provisions and legislative instrument, it is invalid and cannot be considered. Some of the requirements are very lengthy, whilst some are brief. Table 1.5: Format of Schedule 1 to the Migration Regulations Element

Content

1XXX (1)

Class name and code Form: may provide that form(s) to be used are prescribed by legislative instrument. Visa application charge:

(2)

First instalment (payable at time of application). Second instalment (payable prior to visa grant). Other:

(3)

Prescribes ways of making the visa application, and may provide that ways of making the application are prescribed by legislative instrument. May contain other conditions and requirements which must be satisfied at time of the visa application. May contain a subclause to allow family unit member(s) of the principal applicant to be included in the application at time of the application. (4) and following Other paragraphs detailing other criteria. May also contain definitions of terms. Final paragraph lists visa subclasses included in visa class. Table 1.6: Structure of Schedule 1 to the Migration Regulations Term Item Subitem paragraph

Example Schedule 1 Item 1104B Business Skills (Residence) (Class DF) Subitem 1104B(4) or Subitem (4) — list of visa subclasses within that class paragraph 1104B(2)(a) — First instalment

of visa application charge subparagraph subparagraph 1104B(3)(c)(ii) — A secondary applicant is required to be member of the family unit of the primary applicant subsubparagraph subsubparagraph 1104B(3)(d)(ii)(B) — Lodgment of an undecided nomination application [page 38]

Schedule 2 — Provisions with Respect to the Grant of Subclasses of Visas 1.41 After Sch 1, Sch 2 is probably the next most important of the Schedules. It prescribes the individual criteria or requirements for each visa subclass, all of which need to be met by the main visa applicant (who needs to satisfy the primary criteria) and family members (who are secondary applicants and have to satisfy the secondary criteria, sometimes regardless of whether they intend to accompany the main applicant or not) before that particular visa may be granted. Schedule 2 also sets out the conditions for grant of the visa; for example, where the applicant must be at time of grant, conditions and validity of the visa, how the visa may be evidenced etc. The prescribed criteria for each subclass of visa in Sch 2 are sometimes called ‘Recipe Cards’, because they are laid out in a defined format. Table 1.7: Format of Schedule 2 to the Migration Regulations (‘recipe card’) Element Subclass XXX XXX.1

Content Name of visa subclass Interpretation

XXX.2

Provides for interpretation of terms specific to the visa subclass, if any. Primary Criteria At least one member of the family (called the ‘primary applicant’) should meet the primary criteria; other members need to satisfy the secondary criteria, except for visa subclasses where everyone needs to satisfy the primary criteria.

XXX.3

Some visas are split into several streams. In such cases, the primary criteria may be further subdivided into criteria for each stream. Secondary Criteria The secondary criteria are to be satisfied by ‘secondary applicants’, usually members of the family unit of the primary applicant. Where no secondary criteria are specified, then all applicants need to satisfy the primary criteria. [page 39]

Table 1.7: Format of Schedule 2 to the Migration Regulations (‘recipe card’) – cont’d Element XXX.4

Content Circumstances Applicable to Grant

XXX.5

May prescribe where the applicant must be at time of grant, and any charges that may be payable. When Visa is in Effect Specifies whether the visa is temporary or permanent, the visa period and/or

duration when the visa is in effect. Conditions

XXX.6

Schedule 8 visa conditions, whether mandatory or discretionary, are specified here. 1.42 You can see there are various distinctions in the way these recipe cards are laid out: • •

•

Distinction between primary and secondary criteria — the main applicant as distinct from members of the family unit. Distinction between time of application criteria and time of decision criteria. If no distinction is given, then the criteria shall be taken to be criteria at time of decision. Conditions that may be imposed — distinction between mandatory and discretionary conditions.

Table 1.8: Structure of Schedule 2 to the Migration Regulations Term

Example Part Part 143 or subclass 143 Division Division 143.2 Subdivision Subdivision 143.21 clause clause 143.211 subclause subclause 143.211(1) paragraph paragraph 143.211(1)(b) subparagraph subparagraph 143.211(1)(b)(i) subsubparagraph subsubparagraph 143.211(1)(b)(i)(B) subsubsubparagraph subsubsubparagraph 143.211(1)(b)(i)(B) (II) 1.43 Below is a table outlining each visa subclass and class. The overwhelming majority of visas can be found in Schs 1 and 2.

[page 40] Table 1.9: Visa classes and subclasses

[page 41]

Table 1.9: Visa classes and subclasses – cont’d

[page 42] Table 1.9: Visa classes and subclasses – cont’d

[page 43] Table 1.9: Visa classes and subclasses – cont’d

[page 44] Table 1.9: Visa classes and subclasses – cont’d

[page 45] Table 1.9: Visa classes and subclasses – cont’d

[page 46] Table 1.9: Visa classes and subclasses – cont’d

Schedule 3 — Additional Criteria for Unlawful Non-Citizens and Certain Bridging Visa Holders 1.44 Whereas non-citizens in Australia who hold substantive visas can, in most cases, apply for another visa, this is not automatically so for those who do not hold substantive visas. Migration legislation makes no distinction between those who have inadvertently become unlawful (for example, by forgetting to renew their visa), those who have deliberately overstayed their visa, or those who have entered Australia unlawfully (for example, stowaways). These persons, called unlawful non-citizens, should they wish to apply for another visa, are subject to additional criteria before they can be considered. Schedule 3 contains the additional criteria that need to be satisfied by persons who do not hold substantive visas.

Schedule 4 — Public Interest Criteria 1.45 Most applicants applying for Australian visas need to meet certain public interest criteria, including character and health requirements. Schedule 4 lists the public interest criteria applicable to various categories of visas, including the imposition of ‘exclusion periods’ on persons who have breached certain visa conditions, committed fraud or provided false identities in their current or an earlier visa application, or who had their visas cancelled during a

previous stay in Australia and who now wish to apply to return for temporary stay (note, exclusion periods for persons applying to come back for permanent stay are addressed in Sch 5). Schedule 4 is divided into four Parts: •

Part 1 — Public interest criteria [page 47]

• • •

Part 2 — Conditions applicable to certain subclasses of visas for the purposes of subclause 4013(2) Part 3 — Requirements for public interest criterion 4019 Part 4 — Requirements for public interest criterion 4022

Schedule 5 — Special Return Criteria 1.46 Persons who have been in Australia previously and who now want to apply to come back for a permanent stay have to satisfy criteria laid out in Sch 5, which addresses issues and ‘exclusion periods’ for certain persons who have been deported or removed from Australia, as well as some overseas students who have previously studied in Australia under government scholarship or assistance.

Schedule 6D — General Points Test for General Skilled Migration mentioned in subregulation 2.26AC(1) 1.47 Schedule 6D came into effect from 1 July 2012 and provides a points test for General Skilled Migration (GSM) applicants who have been invited to apply under the SkillSelect system. This Schedule is divided into 13 Parts, under which applicants may be allocated points. To qualify for a visa, an applicant needs to score the requisite number of points to reach the pass mark, which is specified by legislative instrument.

• • • • • • • • • • • • • •

Part 6D.1 — Age qualifications Part 6D.2 — English language qualifications Part 6D.3 — Overseas employment experience qualifications Part 6D.4 — Australian employment experience qualifications Part 6D.5 — Aggregate points for employment experience qualifications Part 6D.6 — Australian professional year qualifications Part 6D.7 — Educational qualifications Part 6D.7A — Specialist educational qualifications Part 6D.8 — Australian study qualifications Part 6D.9 — Credentialled community language qualifications Part 6D.10 — Study in regional Australia or a low-population growth metropolitan area qualifications Part 6D.11 — Partner skill qualifications Part 6D.12 — State or Territory nomination qualifications Part 6D.13 — Designated area sponsorship qualifications

Schedule 7A — Business Innovation and Investment Points Test — Attributes and Points (Business Skills (Provisional) (Class EB) Visas) 1.48 Schedule 7A came into effect from 1 July 2012 for the new Business Innovation and Investment Program (BIIP). However, under BIIP, a points test will [page 48] only be required for subclass 188 provisional visas in the business innovation and investor streams. This Schedule is divided into 10 Parts, under which applicants may be allocated points. To qualify for a visa, an applicant needs to score the requisite number of points to reach the pass mark, which is specified by legislative instrument.

• • • • • • • • • •

Part 7A.1 — Definitions Part 7A.2 — Age qualifications Part 7A.3 — English language qualifications Part 7A.4 — Education qualifications Part 7A.5 — Business experience qualifications — business innovation stream only Part 7A.6 — Investor experience qualifications — investor stream only Part 7A.7 — Financial asset qualifications Part 7A.8 — Business turnover qualifications Part 7A.9 — Business innovation qualifications Part 7A.10 — Special endorsement qualifications

Schedule 8 — Visa Conditions 1.49 Non-citizens entering and remaining in Australia are expected to abide by their visa conditions; for example, tourists are not allowed to work, and students have to meet academic requirements, etc. Schedule 8 lists and explains the requirements for each visa condition code. Schedule 8 visa conditions are laid out in a different format from some of the other Schedules but closely resemble Sch 3. Each criterion has a specific four-digit number starting with 8 and then three further digits, for example, cl 8503 — a no further stay condition. Understanding and correctly explaining visa conditions is becoming increasingly vital, given the consequences for criminal sanctions that may flow to agents.

Schedule 9 — Special Entry and Clearance Arrangements 1.50 Schedule 9 lists the categories of persons who may be exempt from the immigration clearance requirements.

Schedule 9 is divided into two Parts: • •

Part 1 — Persons to whom special arrangements apply under section 166 of the Act Part 2 — Persons not required to comply with section 166 of the Act [page 49]

Schedule 10 — Prescribed Forms 1.51 Schedule 10 contains the format of a number of forms used primarily by Immigration Compliance, for example, search warrants, etc, and is not expected to be of interest to practitioners.

Schedule 13 — Transitional Arrangements 1.52 Schedule 13 was inserted on 1 July 2012, and provides transitional provisions pertaining to legislative provisions and charges applicable to various matters which might have existed at a certain date immediately before the relevant amendments took effect.

[page 50]

Visa codes 1.53 Schedule 1 shows that visa classes are denoted by a two-letter alpha code, for example: • • • •

Class DF Class TU Class WF Class XB

Business skills (residence) Student (temporary) Bridging F Refugee and humanitarian

Schedule 2 shows that visa subclasses are denoted by a three-digit numeric code, for example: • • • • • • • • • •

0xx 1xx 2xx 3xx 4xx 5xx 6xx 7xx 8xx 9xx

Bridging visas Permanent (migrant) visas Refugee and humanitarian (offshore) visas Conditional (temporary) visas Temporary residence visas Student visas Visitor visas Transit, border and temporary humanitarian visas Permanent (residence) visas ETAs and diplomatic visas

Principal/dependant codes are as follows: • •

Pxxx Sxxx

Primary visa holder Secondary visa holder

[page 51]

Amendments to migration law 1.54 Amendments to an Act or Regulations normally state which particular sections (of the principal Act) are being amended. This occurs by: • • •

adding or inserting — adding new clauses, sections, subparagraphs, etc to the existing law; repealing — removing, deleting or omitting specific clauses, sections, subparagraphs, etc; amending — this can be a combination of the two where an existing clause can be wholly repealed and replaced with a new provision or just a small change might occur, for example, to the spelling.

The key to the abbreviations of these terms is as follows: • • • •

ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted

At the back of the Act, usually after the Schedule(s), there is a Table of Amendments. This lists the complete history of the Act. The Table is set out in chronological order and the latest amendment will be the last item in the Table. Similarly, at the back of the Regulations, usually after the Schedules, there is a Table of Amendments. This lists the complete history of the Regulations. The Table is set out in chronological order and the latest amendment will be the last item in the Table. There are no amendments to legislative instruments or ministerial

directions, as they are simply repealed and replaced.

[page 52]

Policy: scope and limitations 1.55 Prior to 1989, the Department of Immigration had a variety of policy guidelines, including the Migration Handbook and Citizenship Handbook, as well as Policy Circulars (PC) to help departmental officers in the decision-making process. Since December 1989, however, these policy documents have been replaced by the Procedures Advice Manual (PAM), now in its third edition (PAM3), which is the major policy document to provide departmental officers with guidelines in administering migration legislation. The PAM guidelines are a companion to the Migration Regulations and provide guidance to departmental officers on the interpretation of the Regulations. They mirror the order and contents of the Regulations and comment on or annotate those parts which may require comment, background or policy interpretation. The PAM guidelines also cover general principles and procedural issues as well as matters arising directly from the Migration Act. These guidelines have been described in PAM itself, thus: The term ‘guidelines’ is generally used to describe the content of PAM3 documents. However, PAM3 documents are DIBP policy/procedural documents, with status as official instructions within DIBP’s centralised instructions system … The guidelines in PAM3 on interpreting the law have the status of departmental policy and as such must be given due weight by delegates of the Minister who are making decisions on visa applications. However, policy cannot be regarded as inflexible and decision makers must not give it the same force as law.

There have nevertheless been situations where over-zealous departmental officers and Tribunal members have overly relied on PAM in the decision-making process, which in turn creates jurisdictional errors, as PAM is policy and not law. In El Ess v Minister for Immigration [2004] FCA 1038, Gray J reiterated that:

PAM3 is not a binding document. PAM3 is intended by its own terms to be nothing more than procedural and policy guidance to officers applying the Migration Act and the Migration Regulations. See Xie v Minister for Immigration and Multicultural Affairs [2000] FCA 230, (2000) 61 ALD 641 at [28]–[29] and Soegianto v Minister for Immigration and Multicultural Affairs [2001] FCA 1612 at [15]–[16]. PAM3 does not have the effect of a direction pursuant to s499 of the Migration Act, which would bind a person or body having functions or powers under the Migration Act as to the performance of those functions or the exercise of those powers. Because the PAM3 guidelines are not binding on a decision-maker, they cannot be relevant considerations, in the sense of considerations that the decision-maker is bound by legislation to take into account. See Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 39–40 per Mason J, with whom Gibbs CJ and Dawson J agreed. A failure to apply the guidelines may have significance in establishing some error on the part of a decision-maker, but it is not of itself a jurisdictional error.

[page 53] Similarly, in Tran v Minister for Immigration [2006] FCA 1229, Rares J set aside a decision of the Migration Review Tribunal where the Tribunal member had interpreted the legislation by reference to a policy which was not supported by the relevant legislation. In addition, there are other policy guidelines, for example, Migration Series Instructions (MSIs), which are meant to be interim PAMs until they can be incorporated into PAM. However, many of the MSIs have remained as such over the years. One example is MSI 133 relating to cancellation of business skills visas. This was issued in May 1996 and was not incorporated into PAM3 until March 2007.

[page 54]

Migration Agents Regulations and Code of Conduct 1.56 While the law relating to migration agents is set out in the Migration Act (Pt 3), the regulations relating to migration agents are not a part of the Migration Regulations but are listed in a separate set of regulations. The Migration Agents Regulations 1998 (Cth) are the most important piece of legislation concerning migration agents and supplement Pt 3 of the Migration Act 1958 in relation to migration agents, and prescribe how individuals should perform as registered migration agents, including the imposition of sanctions on persons who give immigration assistance without being registered, and on registered migration agents who breach these Regulations and the associated Code of Conduct. These Regulations are in seven main Parts and two Schedules.

Part 1 — Introductory 1.57 This Part is the introductory part of the Migration Agents Regulations, and contains the date of its commencement, and definitions of terms used in the legislation.

Part 2 — Immigration Assistance given by Persons not Registered 1.58 This Part deals with practice by persons who are not registered migration agents, and is arranged in four Divisions. •

Division 2.1 — Assistance given by employers and their

employees This Division provides for how certain employers may be exempt from being registered migration agents when they are assisting their employees in obtaining visas for employment purposes. •

Division 2.2 — Assistance given by professional development sponsors This Division provides for how certain Australian professional development training organisations may be exempt from being registered migration agents when they are assisting persons in obtaining visas for purposes of undergoing professional development.

•

Division 2.3 — Assistance given by other persons This Division provides for how certain persons in Australia may be exempt from being registered migration agents when they are sponsoring their close relatives for a visa.

•

Division 2.4 — Infringement notices relating to giving of immigration assistance This Division provides for a system of ‘infringement notices’ which can be served on persons who give immigration assistance while not being registered [page 55] migration agents, who may either pay a penalty, or contest the infringement notice in court.

Part 3 — Registered Migration Agents 1.59 This Part addresses the practice of registered migration agents, prescribing the minimum academic qualifications required for

registration, continuing professional development (CPD) requirements, professional indemnity insurance, Migration Agents Code of Conduct, as well as listing the field of persons who may make complaints against registered migration agents.

Part 3A — Approved Activities 1.60 This Part was inserted in March 2013 by the Migration Legislation Amendment Regulations 2013, to provide for nomination of approved CPD activities to be undertaken by registered migration agents for the purpose of seeking repeat registrations.

Part 3B — Approved Providers of Approved Activities 1.61 This Part was inserted in March 2013 by the Migration Legislation Amendment Regulations 2013 and provides for the approval of institutions and organisations to conduct approved CPD activities which can be undertaken by registered migration agents for the purpose of seeking repeat registrations.

Part 4 — Miscellaneous 1.62 This Part deals with the repeal of previous Migration Agents Regulations, and the use of prescribed forms by MARA.

Part 5 — Transitional Provisions 1.63 This Part was inserted to provide for transitional arrangements for applications for repeat registrations by registered migration agents made on or after certain dates. There are three Divisions in Part 5: •

Division 1 — Amendments made by Migration Legislation

• •

Amendment Regulation 2012 (No 4) Division 2 — Amendments made by the Migration Legislation Amendment Regulation 2013 (No 1) Division 3 — Amendments made by the Migration Legislation Amendment Regulation 2013 (No 2) [page 56]

Schedule 1 — Continuing Professional Development 1.64 This Schedule prescribes the requirement for registered migration agents to accumulate at least 10 CPD points in the 12month period preceding their registration anniversary date. For example: in their first year of registration, migration agents must complete four mandatory CPD activities: 1. 2. 3. 4.

File Management Business Management Accounts Management Ethics and Professional Practice

Schedule 2 — Code of Conduct 1.65 Registered migration agents are required to be familiar with the regulations governing their profession and act ethically and in accordance with the Code of Conduct. Codes of Conduct frequently operate to regulate professions and various industry sectors. The Migration Agents Code was initially developed in 1992 and in 1998 was restructured and formatted to now comprise 11 Parts. The Code sets out a number of mandatory obligations on an agent, based in part on common sense and in other areas on a specific

consumer protection basis. The Code of Conduct is set out in Sch 2 to the Migration Agents Regulations. The 11 Parts of the Migration Agents Code of Conduct are: •

•

•

•

•

•

•

•

Part 1 — Introduction sets out the intentions and aims of the Code of Conduct, and the attributes expected of registered migration agents. Part 2 — Standards of Professional Conduct prescribes various standards of professional conduct expected of a registered migration agent. Part 3 — Obligation to clients. A registered migration agent’s obligations towards their clients are set out in Pt 2. This Part further details the obligations of registered migration agents towards their clients. Part 4 — Relations between registered migration agents details how registered migration agents are to treat fellow migration agents, particularly in the referral or transfer of cases between agents. Part 5 — Fees and charges sets the rules for registered migration agents to charge professional fees and the provision of statements of services to clients. Part 6 — Record keeping and management sets out the basic principles of office and file management to be observed by registered migration agents, including retention of records for seven years upon completion of work. Part 7 — Financial duties requires registered migration agents to maintain separate clients’ (trust) account and office operating account, and prescribes the fundamental principles of bookkeeping practices. Part 8 — Duties of registered migration agents to employees promotes effective and efficient control and supervision of workers employed by registered migration agents.

[page 57] •

•

•

Part 9 — Complaints sets out the procedures to be taken by a registered migration agent if a complaint is lodged against him/her. Part 10 — Termination of services prescribes the procedures to be taken upon termination of service by the client or by the agent, including the return of client documents to the client within seven days. Part 11 — Client awareness of the Code. This Part requires a registered migration agent to display the Code of Conduct prominently in the agent’s office or interviewing room, and to provide clients with a copy upon request, as well as providing a link to the Code on the agent’s website (if any).

Table 1.10: Structure of Schedule 2 to the Migration Agents Regulations (Code of Conduct) Term Part clause subclause

paragraph

Note

Example Part 7 Financial Duties clause 7.6 Conditional refund policy subclause 7.6(b) imposes a requirement on an Agent with a conditional refund policy. paragraph 7.6(b)(i) sets out the methods available for the Agent to meet/discharge the obligation, such as keeping the funds in a client account or security bond or appropriate levels of insurance. Notes may appear at the end of a clause, and are designed to clarify and assist the interpretation, or to cross-reference to other provisions in the Code of Conduct; for example: -

Note to cl 10.6 discusses the right

-

of a lawyer to claim a right of lien over a client file. Note to cl 6.2 (storage of client file for seven years) cross-refers to Pt 10 where the documents need to be returned to the client.

[page 58]

Definitions and defined terms Locating definitions 1.66 Words are only afforded their general dictionary meaning if the word or phrase is not defined in the legislation somewhere. Practitioners face a test of memory and skill to know if and where a specific definition is located. The majority of definitions are located at s 5 of the Migration Act and Div 1.2 (regs 1.03–1.15B) of the Migration Regulations. However, there are a host of definitions scattered through specific parts of the Migration Act and Regulations that may still impact on how a term is defined. Sometimes these are cross-referenced, but not always.

Definitions in migration legislation 1.67 Terms in the Migration Act apply throughout the Migration Act unless specifically stated otherwise. Section 5(1) states: ‘In this Act, unless the contrary intention appears …’. The defined term therefore applies also throughout subordinate legislation such as the Migration Regulations. Terms in the Regulations apply throughout the Regulations unless specifically stated otherwise. Terms in Sch 2 Parts apply to that Sch 2 Part only. For each Sch 2 Part, cl 1 (Interpretation) begins, for example, ‘In this Part, [term] means …’. There are also some specific terms that are unique to the migration

stream or visa class. For example, the term ‘eligible investment’ is not defined in the Migration Act or Regulations other than in Sch 2 in visa subclass 188 (business innovation and investor). There are often Notes in the interpretation area to guide the reader to other areas of the law, but this is not comprehensive.

Definitions in the Act 1.68 Definitions can be found throughout the Migration Act. The list below provides some examples of where certain important terms are defined: • • • • • • • •

s 5 — Many definitions appear or are referred to here, but not all definitions s 5A — Personal identifier s 5C — Character concern s 5CB — De facto partner s 5E — Privative clause decisions s 5F — Spouse s 5H — Refugee s 5J — Well-founded fear of persecution [page 59]

• • • • •

s 5K — Membership of a particular social group consisting of family s 5L — Membership of a particular social group other than family s 5M — Particularly serious crime s 6 — Clarifying definitions of enter Australia and other border management terms s 72 — Bridging visa definitions

• • • • • • • • • • • • • • • • • • • • • • • • • •

s 93 — Meaning of ‘prescribed’ in skilled visas s 97 — Definition of terms for visa cancellation based on incorrect information s 116 — Definition of terms for general powers to cancel visas in Australia s 120 — Relevant information for natural justice provisions s 134 — Definition of terms for cancellations of business skills visas s 142 — Criminal justice visas s 164A — Enforcement visa s 165 — Immigration clearance ss 177, 189 and 196 — Detention periods, etc s 198B — Power to bring transitory persons to Australia ss 202 and 204 — Deportation terms s 207 — Costs of removal or deportation ss 222–224 — Orders re disposal of property s 238 — Offences in relation to partner visa applications s 245AG — Meaning of work for employer sanctions ss 245A, 245F, 245FA and 245I — Chasing, boarding and reporting on vessels and planes ss 250, 252AA and 252G — Immigration detention ss 261AE and 261AKA — Identification tests of detainees s 268AA — Student visa issues ss 275 and 280 — Part 3 Migration agent definitions ss 306AB and 311G — Vexatious activities by migration agents ss 309 and 312B — Migration agent procedures s 332G — Disclosure by MARA ss 336A, 336FC, 488A and 488B — Privacy and information s 410 — Definitions relating to review of Pt 7-reviewable decisions s 486K — Costs orders in vexatious immigration proceedings

• • •

s 488 — Tampering with movement records s 500A — Temporary safe haven visas ss 503B and 91X — Protection of confidential information disclosed in the federal court system

Definitions in the Regulations 1.69 Definitions can be found throughout the Migration Regulations. The list below provides some examples of where certain important terms are defined: • • • •

reg 1.03 — Many, but not all, definitions appear or are referred to here reg 1.09A — De facto partner and de facto relationship reg 1.11 — Main business reg 1.11B — ETA-eligible passport [page 60]

• • • • • • • • • • • • •

reg 1.12 — Member of the family unit reg 1.14 — Orphan relative reg 1.15 — Remaining relative reg 1.15AA — Carer reg 1.15A — Spouse regs 1.15B–1.15EA — Definitions of English language levels reg 1.15F — Australian study requirement reg 1.21 — Family violence reg 2.06A — Applications generally reg 2.20 — Eligible non-citizens for bridging visas reg 2.50 — Cancellation of business visas reg 5.01 — Service of documents regs 5.15 and 5.16 — Expansion of definition of ‘behaviour

• • • •

concern non-citizen’ and ‘health concern non-citizen’: see also visa subclass 444 reg 5.15C — Excised offshore place reg 5.19 — Employer nomination reg 5.35A — Arrangements with foreign countries Sch 1 Item 1225 — 417 visas

Cross-referencing definitions within migration legislation 1.70 Definitions in the migration portfolio can apply to words and terms defined in other aspects of the migration law framework, such as legislative instruments and regulations. Some examples include the following: •

•

•

The term ‘clearance officer’ is defined in s 165 of the Act and is referred to in a Note in reg 1.03. However, even if it were not specifically mentioned, the meaning would still be controlled by s 165. The term ‘designated APEC economy’ is not defined in the Migration Regulations but reg 1.03 authorises the meaning to be specified in a legislative instrument. This allows greater speed and flexibility, as countries join the APEC forum. The term ‘excised offshore place’ is defined in the Migration Act s 5(1) and is given further detail in the Migration Regulations reg 5.15C.

Definitions in other legislation 1.71 There are also a host of relevant definitions in the wider Commonwealth law. For example: • •

Statutory Declarations Act 1959 (Cth) Acts Interpretation Act 1901 (Cth) s 22(1)(f) — Definition of ‘foreign country’.

Definitions in policy or case law 1.72 Some words are not defined in the Act, Regulations or legislative instruments but are given a meaning in policy. In the business skills visas policy [page 61] guidelines, for example, there is a definition of ‘collateral’. This has been inserted into PAM3 and is based on the ordinary accounting meaning of the term. Some words which are defined in the Act, Regulations or legislative instruments are then given an expanded meaning in policy. There are times when the courts hand down a decision which may expand, contract or otherwise clarify the meaning of a word or phrase. Such a decision is binding on a decision maker unless the decision is varied. In migration law, the term ‘compelling’ is not defined anywhere in law, though it is referred to on several occasions. According to the Macquarie Dictionary, ‘compel’ or ‘compelling’ means ‘to force or drive, especially to a course of action’. In the context of the limitation on a spouse to sponsor a further partner (reg 1.20J of the Regulations), the Full Court of the Federal Court in Babicci v MIMIA (2005) 141 FCR 285 at [24] stated: … there are … shades of differences between various dictionary definitions of ‘compelling’. But on any view of the meaning of that word the circumstances must be so powerful that they lead the decision-maker to make a positive finding that the prohibition contained in regulation 1.20J(1) should be waived …

In matters of family law and interpretation of the Migration Regulations, such as the definition of ‘custody’ in reg 1.03 of the Regulations, there are a number of authorities that interpret how the specific definition may apply when there may or may not be

associated family law matters. While in reg 1.03 ‘custody’ is defined as ‘the right to have the daily care and control of the child and the right and responsibility to make decisions concerning the daily care and control of the child’, the courts have taken contrasting approaches. See the following cases: • • • •

Fitch v Migration Review Tribunal [2004] FCA 1673 (Dowsett J) Yazbeck v Minister for Immigration and Multicultural Affairs [2002] FCA 980 (Sundberg J) Srour v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1228 (Moore J) Le v Minister for Immigration and Citizenship (2009) 111 ALD 460

For further assistance, refer to LEGENDcom or the MIA’s Migration Agents Reference Manual, which has a detailed appendix of terms found in the Migration Act and Regulations.

Advice on interpreting terms in legislation 1.73 Whilst there are no set ways to go about the complex process, it is wise to develop a methodology for researching the full meaning of defined terms. The following steps may be useful. [page 62]

1. Study the interpretation provisions in the Migration Act and Regulations 1.74 Having identified the particular legal provisions that are necessary, you then need to understand the impact and application to the facts as relating to your client. For certainty in understanding the meaning of a particular word in the Act or Regulations you should first look to see if it has been given a definition. If it has, then

whatever your previous understanding of the term may have been (either from common sense or a dictionary meaning), this should be changed to reflect the specific legislative intention. Usually this definition is binding. Keep in mind, however, that even if a term has a defined meaning, that meaning may not apply throughout the migration law framework. The priority in descending importance and influence begins with the Acts Interpretation Act 1901 and descends to the policy. This is consistent with the directions-of-influence pyramid at Figure 1.1, above. That is, a definition appearing in the Migration Act will apply to the Migration Regulations.

2. Look for derivations of the word or phrase 1.75 You should look to grammatical variations of the word to see if there is any guidance. Section 18A of the Acts Interpretation Act 1901 provides: In any Act, unless the contrary intention appears, where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.

3. Go to PAM and the MSIs to see the meaning under immigration policy 1.76 You must take into account what the decision maker will be focusing on, so even if you believe the dictionary meaning is appropriate you will still need to address the meaning and interpretation that the Department is applying to the provision. Sometimes the policy provisions are more generous, and sometimes they are narrower, than the words set out in the Regulations. For example: •

Settled — This term is central to a person being able to sponsor a relative in the family stream. The term ‘settled’ is defined in reg 1.03 as being lawfully resident in Australia for

•

a ‘reasonable period’, but in DIBP policy further clarification states that the term usually means a period of at least two years. Factors beyond the applicant’s control — This important term is not defined in the Regulations. DIBP policy states the phrase should have its ordinary meaning. PAM goes on to suggest that this may include a serious accident or illness rendering the applicant incapable of making an application, which would clearly be beyond the control of the applicant. However, a mere claim that the applicant misunderstood the visa, or that they were unaware they had become illegal, would not be accepted unless there was supporting evidence. [page 63]

•

Compelling reasons — This term is also not defined in the Regulations. DIBP policy guidelines in PAM state that ‘compelling’ circumstances may arise on compassionate grounds or from factors beyond the applicant’s control, again quoting a serious accident or illness.

4. Check if the word or phrase or the section has been given a meaning by the courts 1.77 The court was asked in a particular case to consider a number of issues, including whether the Minister’s lack of power in s 200 of the Act to deport a permanent resident living in Australia for more than 10 years, limits the Minister’s power to cancel a visa under s 501. If a court such as the Federal or High Court has given a specific definition to a term in the legislation then this is binding on the inferior courts as well as primary decision makers, including the Department of Immigration and Border Protection, and Tribunal

officers. Please note that as legislation changes frequently, you will need to check if the provision has been amended since the case was handed down. The case of Twinn v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 840 shows how quickly the law can be amended.

5. Research supplementary materials and intrinsic or extrinsic materials in the legislation 1.78 When the meaning cannot be identified from the direct words of the legislation, you need to look to other parts of the legislation and external sources for guidance, particularly if policy is unclear or silent on the issue. Section 15AB of the Acts Interpretation Act 1901 allows for a wide range of external materials to be taken into account, including Explanatory Statements attached to the Regulations or Explanatory Memoranda attached to the legislation, parliamentary speeches, particularly the Minister’s second reading speech, reports and academic papers, etc. The purpose of using these extrinsic materials is found in s 15AB: (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or (b) to determine the meaning of the provision when: (i) the provision is ambiguous or obscure; or (ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.

[page 64] Just as it is reasonable for DIBP to give policy guidance to decision makers, so too is it necessary to consider the principal intent for

introducing the legislative proposal.

6. If there is no definition in legislation, consider whether the word has an ordinary dictionary meaning 1.79 The ordinary dictionary meaning is sometimes applied to give a word or term its ordinary meaning. The type of dictionary will depend on the circumstances (for example, is it a technical or ordinary day-to-day word?), but the Macquarie or Oxford dictionaries are generally used. The dictionary meaning is not always acceptable. For example, in the case of Kumar v Minister for Immigration and Ethnic Affairs (1997) 144 ALR 441, the Federal Court struck down a decision of the Immigration Review Tribunal (the forerunner of the Migration Review Tribunal) which looked at the dictionary definition of ‘extreme’ in forming an opinion on the term ‘extreme hardship’. You can go to the Federal Court or Tribunal websites for recent decisions or to AustLII at . 1.80 Once you have well researched key terms and have a good understanding of the provisions, you can identify how the law applies to the facts of your client’s case. It is crucial to understand whether your client’s circumstances meet the legislative provisions.

[page 65]

Chapter 2

Introduction to Visa Application Procedures Legal perspective for making a valid visa application 2.1 On 1 September 1994 the Migration Reform Act 1992 (Cth) made significant changes to the Migration Act 1958 (Cth): codifying decision-making steps, formalising and standardising procedures, and clarifying rights and obligations of both clients and the Department. There is now a much greater emphasis on clients taking responsibility for the progress of their own applications so that efforts to reach a decision are not hindered unnecessarily by deliberate delays and procrastination. This includes notifying of changes of address, responding to deadlines and attending to upfront procedures before making a visa application, which can include completing a skills assessment and undergoing health and character assessments. There are also mechanisms in place to keep applications moving and have them dealt with fairly, quickly and efficiently. The main stages of application processing correspond roughly with the structure of the Migration Act 1958. The following references in Pt 2 Div 3 of the Act, together with Pt 2 Div 2.2 of the Migration Regulations 1994, govern all procedural matters concerning visa applications: • •

Subdivision A (ss 28–43) — General provisions about visas Subdivision AA (ss 44–51) — Applications for visas

• • • • •

Subdivision AB (ss 51A–64) — Code of procedure for dealing fairly, efficiently and quickly with visa applications Subdivision AC (ss 65–69) — Grant of visas Subdivision AF (ss 72–76) — Bridging visas Subdivision AG (ss 77–84) — Other provisions about visas Subdivision AH (ss 85–91) — Limit on visas

[page 66]

Legislative requirements for making a valid visa application 2.2 Before a visa application can be considered, it must have been made validly. Under the Migration Act, the Minister must not consider an application which was not validly made. By not making a valid application, especially where the client does not possess a substantive visa, further applications can be adversely affected; see, for example, s 48 of the Migration Act. The legislative requirements for making a valid application lie in s 46 of the Migration Act 1958 and Sch 1 to the Migration Regulations 1994.

Section 46 requirements 2.3 Section 46 of the Migration Act 1958 provides the following requirements for making a valid visa application. The features of a valid application as set out in s 46 are: • • • • •

A non-citizen who wants a visa must apply for a visa of a particular class. A valid application must satisfy prescribed criteria and requirements contained in s 46. Any visa application charge as prescribed for the visa must be paid. Any fees (for example, sponsorship fees) which are required must be paid. The applicant, if in the migration zone, must not be constrained by the operation of certain sections: – s 48: person refused a visa or whose visa cancelled, and does not hold a substantive visa

– – – – – •

•

•

s 48A: person refused a protection visa s 161: person who holds or held criminal justice visa s 164D: person who holds enforcement visa s 195: person in immigration detention s 501E: person who had visa refused or cancelled on character grounds. The application must not be invalid under provisions of any law of Australia, including but not limited to those who come within the scope of: – s 46AA: applications and grants for certain Act-based visas – s 46A: unauthorised maritime arrivals – s 46B: transitory persons – s 91E or s 91G: persons subject to Comprehensive Plan of Action (CPA) and safe third countries agreements – s 91K: persons holding temporary safe haven visas – s 91P: persons with access to protection from third countries. The visa applicant must not (since last entering Australia) have held a visa subject to a s 41(2)(a) (‘no further stay’) condition: – unless the Minister waives this condition under s 41(2A). The visa applicant must provide certain personal identifiers for the visa application: – unless the Minister waives this requirement under prescribed circumstances. [page 67]

•

The visa application must conform to relevant requirements as set out in relevant parts of the Migration Regulations.

Despite the above, there are some visas which are not subject to s 46(1) or indeed Pt 2 Div 3 Subdiv AA of the Migration Act 1958. For example: •

•

•

s 33(10) provides that ‘Section 43 and Subdivisions AA, AB, AC (other than section 68), AK, AG, AH, C, D, E, F, FA, FB and H do not apply’ in relation to special purpose visas; ss 34(3) and 35(4) provide that ‘Subdivisions AA, AB, AC (other than section 68), AE and AH do not apply’ in relation to absorbed person visas or ex-citizen visas; and regs 2.07AC(1), 2.07AK(1), 2.07AM(1) and 2.07AQ(1) of the Migration Regulations separately provide that the temporary safe haven (Class UJ) visa, temporary (humanitarian concern) (Class UO) visa, referred stay (Class DH) visa, refugee and humanitarian (Class XB) visa and resolution of status (Class CD) visa are prescribed under s 46(2) (and therefore not subject to s 46(1)).

Furthermore, particularly since the enactment of the Migration Amendment (Strengthening Biometric Integrity) Act 2015 (Cth) (available at ), the Migration Act 1958 now makes it mandatory, unless waived by the Minister in prescribed circumstances, for persons, including visa applicants, to give certain ‘personal identifiers’, otherwise again the application will not be valid. Nevertheless, this usually only means providing the applicant’s photograph and signature, which has been the normal practice all along in any event.

Schedule 1 requirements 2.4 Section 46 of the Migration Act stipulates that applicants must specify a particular visa class for the application to be valid. To be eligible for visa grant, they must meet the criteria for at least ONE of the visa subclasses in that visa class. The visa classes and subclasses are listed in Sch 1 to the Migration Regulations. This is provided in s

46(3) and (4) of the Migration Act. Regulation 2.07(4) further states that an application is not valid unless the applicant includes his or her residential address either on the approved form or in a separate document attached to it. Thus, a post office box, or address c/o an office of a solicitor or migration agent, will not suffice. The visa classes are listed in Sch 1 to the Migration Regulations 1994 which also describes procedural criteria for making a valid application for the particular visa class, such as the form(s) to be used, the visa application charge(s), where and how the visa application must be sent, the location where the applicant must be at time of lodging the application, whether members of a family unit may be able to combine their application with the primary applicant, and other requirements. [page 68] As many visas are split into several categories or ‘streams’, Sch 1 to the Regulations may also prescribe the criteria to be satisfied for a particular stream within that visa class. For example, the business skills (provisional) visa (Class EB) has no less than six separate streams and each of these streams has its own criteria which must be satisfied for an application to be valid. Hence it is important to pay attention to the exact criteria when making a visa application.

Legislative instruments 2.5 In accordance with reg 2.07(5), Sch 1 often refers a visa applicant to a legislative instrument, which stipulates what form(s) are to be used, and ways of making the visa application. Regulation 2.07(3) says an ‘approved form’ must be completed in

accordance with any directions on it. The legislative basis for using ‘approved forms’ is found in s 495 of the Migration Act. As immigration forms are revised on a regular basis, applicants and their agents should be careful to use the most current version or they run the risk of it not being an ‘approved form’.

[page 69]

Legislative constraints on making a valid visa application 2.6 Section 46, which determines the validity of visa applications, was amended in December 2014 as the result of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014. Section 46(5) expands the ‘legislative constraints’ and lists several sections of the Migration Act 1958 which would invalidate certain visa applications.

Section 48: Non-citizen refused a visa or whose visa cancelled 2.7 Section 48 of the Migration Act is probably the most common and significant of the legislative constraints. For it to be effective, however, there are certain preconditions, that is, persons must meet certain conditions before they are regarded to be subject to s 48. These are that the person: • • • •

is a non-citizen, is inside the migration zone, does not hold any substantive visa, and since his or her last entry to Australia, – has had a visa application refused (note special provisions apply under s 501E where the visa was cancelled on character grounds under s 501, s 501A or s 501B), o whether the person had consciously made the application, or been taken to have applied under the

Migration Act or Regulations, and include a secondary applicant (including a minor), whether that person knew about or understood the nature of the application due to mental impairment or age; and

–

o whether or not that application has been ‘finally determined’ (see end of this chapter for definition of ‘finally determined’), or has had a visa cancelled under certain sections of the Migration Act: o s 109 (visa cancelled on grounds of incorrect information) o s 116 (general powers to cancel visa) o s 133A (Minister’s personal power to cancel on s 109 grounds) o s 133C (Minister’s personal power to cancel on s 116 grounds) o s 134 (cancellation of business visas) o s 137J (automatic cancellation of student visas) o s 137Q (regional sponsored employment visas).

Persons who are subject to s 48 are constrained in that they can only apply for a limited number of prescribed visas. The visas are listed in reg 2.12 and are: • •

Onshore partner visa (temporary and permanent) Child (residence) visa (with some restrictions) [page 70]

• • •

Medical treatment visa Protection visas Territorial asylum visa

• • • •

Border visa Special category visa Bridging visa and Resolution of status visa.

Note that s 48 constraints apply only to a person who is in the migration zone and who does not hold a substantive visa. Section 48 would no longer apply once the person leaves Australia. Furthermore, persons who have had a visa cancelled or refused at some time in the past but who now hold a substantive visa are not subject to s 48 and are generally not restricted in the classes of visa they can apply for (subject to any other legislative constraints). In September 2008, s 48 was amended by the Migration Legislation Amendment (No 1) Act 2008, which inserted a new subs (3), to take effect from 15 March 2009, which says that if a non-citizen leaves and returns to Australia on a bridging visa, then that person is taken not to have left the migration zone, despite that travel. This has closed off a loophole whereby a person who might have been subject to s 48 could have taken advantage of a bridging visa to travel outside Australia and then return, thereby circumventing the wording of ‘after last entering’ in s 48(1). However, in its explanatory memorandum, it was clarified that this would not prohibit the noncitizen from departing on a bridging visa and then lodging a visa application from outside Australia. It only prohibits applications from within Australia. In Nguyen v Minister for Immigration [2004] FMCA 551, the plaintiff had attempted to lodge an application for the onshore partner visa, which was ruled to be an invalid application for the reason that she was subject to s 48 (in that she had previously been refused a 457 visa). Smith FM of the Federal Magistrates Court dismissed the appeal despite the plaintiff being in a relationship with an Australian citizen for several years and having a daughter from the relationship. In his

judgment, Smith FM said: … this language [in the Migration Act] is absolutely clear. Whatever the background circumstances to the making of the application, and whatever circumstances might suggest the desirability of receiving and processing the application in question, the Minister did not have power in the present case to consider the application. I therefore consider that there was no legal flaw or defect in the decision taken and notified to the applicant [in the case officer’s letter], and there is no ground for judicial review in the present proceedings.

On 14 September 2009, the Migration Regulations were amended by the Migration Amendment Regulations 2009 (No 10) to include partner visas (temporary and permanent) as visas prescribed for the purposes of s 48. [page 71] This means that persons who are subject to s 48 are no longer barred from applying for a partner visa onshore, as long as they have not previously had a visa refused or cancelled on character grounds, or had a refusal of a partner or prospective marriage visa. So the case of Nguyen above could have had a different outcome had the plaintiff applied for a partner visa after 14 September 2009. The amendment on 14 September 2009 also benefits the dependent children of primary applicants in a partner visa application who are themselves subject to s 48. However, this ‘secondary prescription’ of conditions for a valid visa application has been ruled to be ultra vires by the courts (see Minister for Immigration and Multicultural and Indigenous Affairs v Kim [2004] FCAFC 329 and SZQAN v Minister for Immigration [2011] FMCA 501). When an application lodged onshore consists of several applicants, for example, as in a family, then everyone will be subject to s 48 if the application is refused. In Minister for Immigration and Border Protection v Kim [2014] FCAFC 47, Kim’s application for a student visa was ruled to be invalid because her father had earlier lodged a visa application which had included her as a secondary applicant. When her father’s

application was refused, Kim also became subject to s 48. In reaching its decision, the Full Court of the Federal Court was satisfied that Kim, as a minor, had no knowledge that she was included in her father’s visa application, and therefore s 48 should not have been applied to her personally. Following Kim, the government passed the Migration Legislation Amendment Act (No 1) 2014, which inserted a new subs (1A) to s 48 to clarify that s 48 constraints also apply to a non-citizen: (b) … for which an application had been made on the non-citizen’s behalf, whether or not: (i) the application has been finally determined; or (ii) the non-citizen knew about, or understood the nature of, the application due to any mental impairment; or (iii) the non-citizen knew about, or understood the nature of, the application due to the fact that the non-citizen was, at the time the application was made, a minor.

Section 48A: Non-citizen refused a protection visa 2.8 Previously, references to ‘protection visa’ usually meant the permanent protection visa (subclass 866). However, following amendments to the Migration Act 1958 by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, ‘protection visa’ has been redefined to be a class of visas under a new s 35A in the Migration Act 1958, which consists of: • •

Permanent protection visa (Class XA, subclass 866); Temporary protection visa (Class XD, subclass 785); [page 72]

• •

Safe haven enterprise visa (Class XE, subclass 790); and Protection visa (Class ZA) (repealed and no longer available).

Under s 48A of the Migration Act 1958, applicants in the

migration zone who applied for and were refused protection visa(s), or whose protection visa has been cancelled, whether or not the application(s) have been ‘finally determined’, are prevented from reapplying for further protection visas, regardless of whether they still hold a substantive visa, unless they can obtain a special waiver of this restriction from the Minister personally under s 48B. If the Minister waives the restrictions of s 48A, then the person would have seven working days from the time when he or she is notified of the Minister’s decision to lodge the new protection visa application. In this situation, the Minister is required to table his or her decision before Parliament within 15 sitting days. Previously, s 48B was not in itself an authority for remaining in Australia and those who did not already hold valid visas had to consider ways of avoiding detention while their request to the Minister was being considered. This was rectified on 1 July 2009 when the Migration Regulations were amended to include the situation where someone seeks the exercise of the Minister’s powers under s 48B as a ground for applying for a bridging E visa. In May 2014, the Migration Amendment Act 2014 amended s 48A to provide that if a non-citizen is removed under s 198 and then returns under s 42(2A)(d) and (e) (basically referring to those who had been refused immigration clearance but were returned to Australia by a third country, or those who were removed but required to return by court order or an undertaking by the Minister) they will not be permitted to reapply for a protection visa regardless of any claims made. If the Minister waives the operation of s 48A, any fresh application for a protection visa can only be reexamined if there is new evidence to be presented (s 50).

Section 161: Criminal justice visas 2.9

Under s 38 in the Migration Act 1958, there is a temporary

non-substantive visa called a ‘criminal justice visa’ granted to persons who are required to be in Australia for the purposes of extradition or administration of criminal justice in relation to an offence against a law of the Commonwealth or state. Section 142 defines ‘administration of criminal justice’ to be: • • •

an investigation as to whether an offence has been committed; or the prosecution of a person for an offence; or the imprisonment of a person for the commission of an offence.

A criminal justice entry or stay visa would enable a person to be in Australia during the period required for the purpose of administration of criminal justice. [page 73] Holders of criminal justice entry visas (whether still in effect or not) usually cannot apply for any substantive visa, except a protection visa, while in Australia (s 161(5) and (6)), and there is no discretion for the Minister to waive this. Note, however, that s 161 only specifically mentions the criminal justice entry visa and makes no mention of the criminal justice stay visa. Presumably those who were granted a criminal justice stay visa, having entered Australia on some other visa (or no visa at all), are not subject to this restriction. Zhang arrived in Australia in 2003 and applied for a protection visa, which was refused. He then made a complaint against his migration agent, and was considered to be someone who could assist in the investigation and prosecution of the agent. As a consequence, the Attorney-General’s Department issued a certificate staying the removal of Zhang temporarily ‘for the administration of criminal justice’, upon which he was granted a criminal justice stay visa. Four years later, the prosecution of the migration agent had still

not eventuated. In 2009, the Attorney-General’s Department cancelled Zhang’s certificate as he was now no longer required to give evidence. Immigration then sent Zhang a letter asking him to make arrangements to leave Australia immediately. Zhang’s criminal justice stay visa was subsequently cancelled and he was taken to immigration detention. Zhang appealed to the Federal Magistrates Court claiming he was denied ‘procedural fairness’ in that he was not invited to comment on whether the Attorney-General should cancel his criminal justice stay certificate. After two hearings at the Federal Magistrates Court, he was given relief (Zhang v Minister for Immigration [2009] FMCA 196 and Zhang v Minister for Immigration (No 2) [2009] FMCA 458). The Minister for Immigration and the Attorney-General appealed the decision to the Federal Court. In a Full Court decision (Minister for Immigration and Attorney-General v Zhang [2009] FCAFC 129), the court held that Zhang was only a ‘potential witness’, and: … it would be contrary to the precepts of the administration of criminal justice to permit a potential witness a right to be heard on the question of whether he or she may assist … [hence] the Federal Magistrate erred when he held that the delegate of the Attorney in the present case was bound to accord procedural fairness to Mr Zhang before cancelling the criminal justice stay certificate issued to him.

Section 164D: Enforcement visas 2.10 •

There are two categories of enforcement visa. Enforcement visa (fisheries matters) — this is the enforcement visa given under s 164B of the Migration Act 1958 to persons who are not Australian residents and who are on foreign fishing boats, either in or outside the migration zone, [page 74]

•

who are suspected of committing ‘fisheries detention’ offences as defined under the Fisheries Management Act 1991 or Torres Strait Fisheries Act 1984 (basically meaning illegal fishing in Australian waters), in order for fisheries officers to bring them into Australia for law enforcement purposes. Enforcement visa (environment matters) — this version of the enforcement visa was inserted into the Migration Act 1958 by the Environment and Heritage Legislation Amendment (No 1) Act 2006 in December 2006. Under s 164BA of the Migration Act 1958, if a person who is not an Australian resident is on a vessel (ship or aircraft), either in or outside the migration zone, and that vessel is suspected of having been involved in the commission of ‘environment detention’ offences under the Environment Protection and Biodiversity Conservation Act 1999 (for example, damaging the environment by discharging oil into the sea), then an environment officer or the Commander of a Commonwealth ship or aircraft may grant an enforcement visa (environment matters) to the person, in order to bring the person into Australia for law enforcement purposes.

There have been a number of incidents in the Northern Territory where Indonesian fishing boats have been caught fishing illegally in Australian waters; for example, in 2004, Mohammad Yusup, the captain of an Indonesian fishing boat, was caught fishing within Australian waters. The ship was brought to Australia and Yusup was prosecuted under the Fisheries Management Act 1991. He was fined a total of $120,000 and given 28 days to pay, and was granted an enforcement visa for his stay in Australia. Yusup appealed the sentence. At the NT Court of Criminal Appeal, the court reduced the sentence to a $100,000 fine, failing which he was to be detained ‘indefinitely’ until such time as the fine was paid (Yusup v R [2005] NTCCA 19). In 2008, officers from the Australian Fisheries Management

Authority boarded an Indonesian fishing boat in waters between Australia and Indonesia, took the crew into custody and subsequently destroyed the vessel. La Bara, the skipper of the fishing vessel, was issued an enforcement visa and brought to Darwin. When the authorities decided not to prosecute, La Bara’s enforcement visa ceased to exist and he became liable to be removed. La Bara filed a motion with the Northern Territory Supreme Court challenging the Australian government’s detention of him and destruction of his vessel. The NT Supreme Court referred the case to the Federal Court. In his judgment, Besanko J held that La Bara had not established any claims to be in Australia and the power under s 198(2) to remove unlawful non-citizens from Australia as soon as practicable was mandatory rather than discretionary, and as La Bara’s enforcement visa had ceased, he was subject to mandatory removal (La Bara v Minister for Immigration [2008] FCA 785). The enforcement visa does not apply to Australian permanent residents. However, under s 82(2A), grant of an enforcement visa effectively cancels any temporary visa that the non-citizen may have held. Also, under s 164D, a non-citizen in the [page 75] migration zone who holds an enforcement visa may not apply for any visa other than a protection visa. There is no discretion for the Minister to waive this restriction.

Section 195: Detainees 2.11 Under s 195 of the Migration Act 1958, an unlawful noncitizen who is in immigration detention has up to two working days to lodge an application for a substantive visa (regardless of other time limits specified in the legislation), if they are eligible to apply for that

particular visa. This period may be extended by a further five working days if, during those first two working days, the detainee applies in writing for the extension. After the initial two working days (or a further five working days if an extension was granted), detainees may only apply for a bridging visa or protection visa, if they are not prevented by s 48A or other legislative constraints. Section 195A provides a ‘waiver clause’ whereby the Minister may personally grant a detainee a visa with or without application. In addition, the Minister may also personally issue a ‘Residence Determination’ to certain detainees. ‘Residence determinations’ are commonly referred to as ‘community detention’, where the detainees are allowed to reside in the community instead of in a detention centre, although they are still deemed to be in immigration detention during the period of the ‘Residence Determination’ (ss 197AA– 197AG). Where the Minister decides to exercise either of these powers, he or she is required to table his or her decision before Parliament within 15 sitting days.

Section 501E: Refusal or cancellation of visa on character grounds 2.12 Under s 501E(1) of the Migration Act 1958, a non-citizen in the migration zone (whether a permanent resident or not) who has had a visa refused or cancelled under s 501, s 501A or s 501B (on character grounds), and that decision has not been revoked, cannot apply for a visa except a protection visa, providing the person is not otherwise affected by s 48A or other legislative constraints. There is no discretion for the Minister to waive this restriction.

Section 501E(1A) and (1B) further provides that s 501E(1) would apply regardless of whether the person had consciously made the application, or been taken to have applied under the Migration Act or Regulations. The application of these subsections extends to secondary applicants (including minors), whether those persons knew about or understood the nature of the application due to mental impairment or age. [page 76] Under s 501F(2), if a person in the migration zone has been refused a visa under s 501, s 501A or s 501B, then any other outstanding visa applications (except a protection visa application) are also taken to have been refused. And under s 501F(3), if a person in the migration zone has had a visa cancelled under s 501, s 501A or s 501B, then any other visas held by the person (except a protection visa) are also taken to have been cancelled. However, under s 501F(4), if the decision made by the Minister is set aside or revoked, then the effects of s 501F(2) and (3) would also be reversed.

Section 46AA: Some Act-based visas 2.13 Section 46AA was inserted into the Migration Act by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, and provides that if a visa is ‘Act-based’, then an application for that visa is invalid if there are no criteria prescribed in the Regulations. An application for an ‘Actbased’ visa will also be invalid and cannot be granted unless the person meets both the criteria prescribed in the Act as well as the Regulations. The ‘Act-based’ visas provided for under s 46AA are:

• • • • • • •

special category visas (s 32) permanent protection visas (s 35A(2)) temporary protection visas (s 35A(3)) safe haven enterprise visas (s 35A(3A)) bridging visas (s 37) temporary safe haven visas (s 37A) and maritime crew visas (s 38B).

Sections 46A and 46B: Unauthorised maritime arrivals and transitory persons 2.14 Under the government’s offshore processing arrangements, while asylum claims are being considered, asylum seekers can be accommodated on Christmas Island, or transported to certain Pacific countries, notably Nauru and Manus Island (in PNG). These are termed ‘unauthorised maritime arrivals’ (formerly ‘offshore entry persons’), or ‘transitory persons’, if they are transported to Australia for temporary reasons. Sections 46A and 46B provide that unauthorised maritime arrivals may not make valid visa applications whilst in Australia. However, if the Minister decides it is in the public interest to do so, he or she may personally waive the restrictions by written notice, in which case he or she needs to table his or her decision in Parliament within 15 sitting days. The High Court said in S4/2014 v Minister for Immigration [2014] HCA 34 that s 46(2) comprises two separate processes. First, the Minister will decide [page 77] whether or not to exercise his or her powers under the Act, and

second, if the Minister so decides, he or she will then decide whether or not to allow the unauthorised maritime arrival to apply for a visa. In March 2011, the Minister had decided that he would consider the exercise of his power under s 46A(2) in respect of all ‘offshore entry persons’ (subsequently renamed ‘unauthorised maritime arrivals’) who entered Australia on or after 1 March 2011. In MZYPY v Minister for Immigration [2014] FCAFC 68, an asylum seeker from Sri Lanka was found not to be a refugee. He then applied to the Minister to exercise his power under s 46A(2) to allow him to make a fresh application under the complementary protection provisions. When the Minister declined, the appellant took his case to the courts, but the Full Court of the Federal Court held that there was no procedural unfairness by the Minister in not ‘lifting the bar’ in his case. Previously, if a ‘transitory person’ was brought to Australia for a temporary purpose and was still here after six months, he or she could request the Refugee Review Tribunal to examine his or her refugee claims. Upon receiving such a request, the Tribunal had to notify the Secretary (s 198C), and could not commence to examine the claims unless the Secretary advised the Tribunal that there was no current ‘certificate of non-cooperation’ against the person (s 198D). However, this ‘concession’ was removed in May 2013 following the passage of the Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013. The legality for offshore entry persons and transitory persons to pursue legal proceedings in Australia has been tested in the Federal Court. In P1/2003 v Minister for Immigration [2003] FCA 1029, an applicant had sought orders to prevent the Minister removing him to Nauru while he had legal proceedings outstanding. Justice French, who has since become Chief Justice of the High Court, concluded it would be inappropriate in that situation for him to make that order. In addition, his Honour stated:

It is submitted on behalf of the Minister that … even if it be the case that the plaintiff is not a transitory person within the meaning of the Act, he is an unlawful non-citizen and an offshore entry person. As an unlawful non-citizen he would be subject to the requirement to be taken into immigration detention pursuant to s.189(1) of the Migration Act until removed from Australia under s.198. It is submitted on behalf of the Minister that the mandatory terms of the legislation leave no room for transitory persons or unlawful non-citizens to remain in Australia merely for the purpose of pursuing legal proceedings in this country. I accept that submission.

However, in a subsequent landmark decision on 11 November 2010 (Plaintiff M61 v Commonwealth of Australia; Plaintiff M69 v Commonwealth of Australia [2010] [page 78] HCA 41), the Full Bench of the High Court unanimously decided that two Sri Lankan asylum seekers who had landed on Christmas Island (and were therefore designated ‘offshore entry persons’) and who had their refugee status application refused, had been denied procedural fairness. The court held that whatever way they had come to Australia, whether by air or by boat, they should be treated the same way and be given access to review avenues. The Minister conceded that this decision may have wide ranging implications for thousands of asylum seekers who are in Australia as well as those dating back more than a decade. Under the previous Coalition government, Australia had operated several detention facilities in Australia as well as in certain Pacific nations, for example, Nauru and PNG. When the Labor government took office in 2007, all of the ‘Pacific Solution’ detention facilities, as well as some onshore detention centres like Baxter and Woomera, were closed down, and ‘offshore entry persons’ instead placed in detention facilities on Christmas Island while their asylum claims are being considered. Nevertheless, in 2010–2011, with the influx of unauthorised boat arrivals, and facilities overflowing on Christmas Island, the Labor

government had no alternative but to bring a small number of detainees who had had their asylum claims rejected into mainland detention centres pending their removal. In 2010, the Australian government tried to negotiate with several neighbouring countries, for example, East Timor and Indonesia, with the view of establishing ‘regional processing centres’ to accommodate irregular maritime arrivals in those countries. When these negotiations did not eventuate, the government entered into an agreement with Malaysia on 25 July 2011 whereby Australia would send 800 of its asylum seekers to Malaysia, and accept 4000 genuine refugees from Malaysia. However, an injunction was sought in the High Court by the Refugee and Immigration Legal Centre (RILC) on behalf of 42 of those being transferred, including several unaccompanied minors. On 31 August 2011, a majority of the High Court ruled that the agreement with Malaysia was invalid (see M70/2011 & M106/2011 v Minister for Immigration [2011] HCA 32). In response to the High Court decision, the government introduced the Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011 to validate the ‘Malaysian solution’. However, this met with stiff resistance from the Opposition and the Greens. When it finally became clear that the Bill would be defeated, the government on 13 October 2011 conceded that this meant offshore processing for asylum seekers would be shelved, and all boat arrivals would be processed onshore instead. Towards the end of his term of government, Prime Minister Kevin Rudd managed to enter into agreements with the PNG and Nauru governments in August 2013 to resettle asylum seekers from Australia. As a result of this agreement, asylum seekers were again sent to Manus Island and Nauru under an [page 79]

offshore processing arrangement. The government promised that no unauthorised maritime arrivals would ever get permission to be settled in Australia. After winning the general election in September 2013, the new Coalition government retained the offshore processing arrangement with PNG and Nauru. Children born in Australia to unauthorised maritime arrivals are regarded as having the same immigration status as their parents; that is, they are born unauthorised maritime arrivals and are unable to apply for a protection visa in their own right. This was tested in the case of ‘Baby Ferouz’ (Plaintiff B9/2014 v Minister for Immigration [2014] FCCA 2348), who was born in Australia after his mother was transferred as a ‘transitory person’ to Darwin from Nauru for the birth. The Federal Circuit Court ruled that he was an unauthorised maritime arrival and therefore ineligible for a protection visa. When all efforts seemed to be in vain, Senator Ricky Muir of the Australian Motoring Enthusiast Party managed to strike an 11th hour ‘one-off ’ deal with Minister Scott Morrison, who on the eve of his departure from the Immigration portfolio, announced that Baby Ferouz and some 30 other babies born in Australia to transitory person mothers on or before 18 December 2014 (when the Minister made the announcement), and their immediate family members, would be allowed to stay and have their asylum claims determined. If they were found to meet the Australian definition of ‘refugee’, then they would be granted temporary protection visas or safe haven enterprise visas. The ability for transitory persons to apply for protection visas in Australia received its biggest test to date in January 2016 in the High Court case of M68/2015 v Minister for Immigration [2016] HCA 1. In this case, a female unauthorised maritime arrival from Bangladesh was transferred from Nauru to Australia for medical treatment as a result of her pregnancy. After giving birth, the woman claimed protection, and argued that the Australian government had ‘funded, authorised, procured and effectively controlled’ her detention on Nauru, which was not authorised by a valid Australian law and

infringed constitutional limits on the government’s power. Nevertheless, the High Court, in a majority decision, held that s 198AHA of the Migration Act 1958 had authorised the Australian government’s participation in the detention of asylum seekers in a foreign country. This court decision was said to have affected some 267 asylum seekers, including 39 children and 33 babies born in Australia to the asylum seekers. Following the High Court decision, there were widespread demonstrations against the asylum seekers being sent back to Nauru, culminating in the so-called ‘Baby Asha affair’, resulting in a 10-day standoff between the Minister for Immigration and doctors in a Brisbane hospital where the baby was being treated. On 26 April 2016, the PNG Supreme Court held that the detention of asylum seekers on Manus Island was illegal and unconstitutional. However, Minister Peter Dutton responded by saying that the detainees in PNG would not be resettled in Australia. In June 2017, the Australian government agreed [page 80] to pay asylum seekers detained between 2012 and 2016 at Manus Island $70 million in compensation following the settlement of a class action. The asylum seekers claimed that they endured physical and psychological harm when the Australian government breached their duty of care by detaining them in conditions below Australian standards. Following a deal struck by the Australian government, asylum seekers from both Nauru and Manus Island who are found to be refugees will instead be resettled in the United States. The first refugees have been resettled, but many are still awaiting assessment and resettlement.

Sections 91E and 91G: CPA and safe third country

2.15 Sections 91E and 91G of the Migration Act 1958 apply to persons who have arrived in Australia and who are covered by the CPA (Comprehensive Plan of Action) or who are under safe third country agreements. These provisions primarily targeted certain boat people originally from Vietnam but who had gone to China before coming to Australia. Under reg 2.12A of the Migration Regulations, PRC is a prescribed safe third country (however, this regulation ceased to be in force after 14 August 2013). The CPA was approved by the International Conference on IndoChinese Refugees at Geneva on 13–14 June 1989, to deter the continuing outflow of refugees from Vietnam and Laos, and to cope with an increasing reluctance by third countries to maintain resettlement opportunities for these people, which as a consequence had resulted in countries of first asylum threatening to push back these asylum seekers. Under the CPA plan, asylum seekers who arrived in countries of first asylum after a certain cut-off date in 1989 would no longer be regarded as prima facie refugees but had to be screened first. Those who failed the screening test would be sent back to Vietnam and Laos under an ‘orderly repatriation’ program. The CPA program was officially ended on 6 March 1996. Under s 91E, people subject to provisions of the CPA or safe third country arrangements are prevented from applying for any visa in Australia at all (if they have not yet been immigration cleared), or for a protection visa (if they have been immigration cleared). Under s 91G, if a country is prescribed to be a ‘safe third country’ and where a ‘cut-off date’ is specified by regulation, and a person makes an application for a visa between the cut-off date and the date of the regulation (the ‘transitory period’), then that person’s application for the visa (if the person was not immigration cleared) or protection visa (if the person was immigration cleared) shall cease to

be valid when the regulation takes effect, regardless of whether the matter was the subject of merits or judicial review. All visa applications lodged by the person before the regulations take effect are taken to be an application for a protection visa. [page 81] The Minister is entitled to exercise his or her powers under ss 91E and 91G in accordance with s 91F, which states that if the Minister exercises those powers, he or she is required to table his or her decision before Parliament within 15 sitting days. If the Minister waived the restrictions of s 91E or s 91G, then the person would have seven working days from the time when he or she is notified of the Minister’s decision to lodge the visa application.

Section 91K: Temporary safe haven visa 2.16 Section 91K of the Migration Act 1958 applies to persons in Australia who hold temporary safe haven visas, who are prevented from applying for any visa except another temporary safe haven visa, unless the Minister personally decides to waive this restriction. The power for the Minister to exercise his or her powers in this regard is contained in s 91L, in which case the Minister is required to table his or her decision before Parliament within 15 sitting days. If the Minister waived the restrictions of s 91K, then the person would have seven working days from the time when he or she is notified of the Minister’s decision to lodge the visa application. Legislation for the temporary safe haven visa was enacted in April 1999 to provide temporary relief for displaced persons from Kosovo as a result of the war in Kosovo of the Former Yugoslav Republic. The intention of this scheme was that those who came to Australia under

this visa had to sign an undertaking that they would return home once the situation in Kosovo improved. In June 1999, following the signing of an agreement that ended the conflict in Kosovo, repatriation of Kosovars housed in camps in neighbouring countries commenced. On 12 July 1999, the UNHCR announced that the security situation had improved sufficiently for it to coordinate organised voluntary repatriation. In July 1999, Immigration began arranging returns of Kosovars from Australia. The visas of those who did not wish to return immediately were extended on several occasions until 28 October 1999 when the Minister wrote to all remaining Kosovar evacuees asking them to set out in writing reasons why they should be permitted to stay longer in Australia. The last extension of the evacuees’ temporary safe haven visa expired on 8 April 2000. On 7 April 2000, 81 Kosovar applicants sought urgent injunctive relief from the High Court to prevent the Minister from taking any actions to remove them, but Gleeson CJ dismissed their applications (Re Minister for Immigration; ex parte Fejzullahu [2000] HCA 23). The 448 temporary safe haven visa for Kosovars was repealed on 22 March 2014. [page 82] The other temporary safe haven visa is the 449 temporary humanitarian stay visa, which had been used for the East Timorese who had fled East Timor as a result of unrest in the country. Most, if not all, of these have also been repatriated and it is not expected there are any more such persons still in Australia on this visa. More recently, with the influx of asylum seekers arriving by boat, the Abbott Coalition government had sought to reintroduce the ‘temporary protection (785) visa’ to grant temporary refuge to these

people who would then be permitted to live in the Australian community, albeit with very few entitlements. The temporary protection visa legislation was, however, disallowed by the Senate on 3 December 2013. After the Senate also disallowed proposed amendments to requirements for the protection (866) visa, Minister Scott Morrison said he would use existing temporary visas to achieve the aim of denying asylum seekers permanent residence in Australia, and the temporary humanitarian stay (449) visa, which had not been used for many years but which had been retained in the Migration Regulations, was revived for use on asylum seekers. The temporary safe haven (448 or 449) visas are not to be confused with the new safe haven enterprise (790) visa introduced under the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014.

Section 91P: Non-citizens with access to protection from third countries 2.17 Section 91N of the Migration Act 1958 applies to non-citizens in Australia who have dual nationalities other than Australian, or those who have a right of entry to a third country, either temporarily or permanently, and where that third country meets the relevant human rights standards and can provide protection to the person. In such a situation, the position of the Australian government is that these persons should proceed to that third country and seek its protection rather than seek protection from Australia. The person would be prevented by s 91P from applying for any visa at all (if they have not yet been immigration cleared), or for a protection visa (if they have been immigration cleared), unless the Minister personally decides to waive this restriction. The power for the Minister to exercise his or her powers in this regard is in s 91Q, in which case he or she is required to table his or

her decision before Parliament within 15 sitting days. In January 2006, a group of 43 West Papuans arrived in Cape York in Northern Queensland and sought protection. In March 2006, all but one of the group were granted temporary protection visas, a move which infuriated the Indonesian government, and which prompted [page 83] the government to introduce the ill-fated Migration Amendment (Designated Unauthorised Arrivals) Bill 2006 into Parliament. The 43rd member of the group, David Wainggai, apparently had a temporary visa for Japan, where his mother was born, and his application for protection was refused under s 91P. Following an application for review to the Federal Magistrates Court, the Minister’s decision was reversed. In fact, however, even before the case of the West Papuans, the Federal Court in Australia had already in separate decisions upheld the Minister’s power to remove persons with either permanent or temporary residence in third countries to that country, whether or not that third country is a party to the UN Refugee Convention (see Thiyagarajah v Minister for Immigration [1997] FCA 1494, Rajendran v Minister for Immigration [1998] FCA 1085, Minister for Immigration v Gnanapiragasam [1998] FCA 1213 and Minister for Immigration v AlSallal [1999] FCA 1332).

Sections 46(1A), 41(2)(a) and 41(2A): ‘No further stay’ conditions and waiver 2.18 Some people in Australia hold visas subject to an 8503 condition, while certain overseas students may have the 8534 or 8535

condition on their student visas. Sections 46(1A) and 41(2)(a) provide that anyone with such a condition on their visa is not able to make any visa application, except for a protection visa or a specific temporary visa, while they are in Australia. However, the Minister may waive these conditions under s 41(2A) in certain circumstances. The circumstances in which the Minister may waive a no further stay condition under s 41(2A) are found in reg 2.05(4). The Minister may waive the 8503, 8534 or 8535 visa conditions under reg 2.05(4) if: • •

•

The person requests the Minister to waive the condition in writing, and The person has experienced major changes to his or her situation because of – compelling and compassionate circumstances, – which have arisen after he or she was granted the visa with the condition, and – over which he or she had no control, and If the Minister had previously rejected a request for a waiver from that person, the circumstances upon which that person is seeking a waiver for the second time are substantially different from those at the first instance.

On 1 July 2012, a new regulation, reg 2.05(4AA), was inserted into the Migration Regulations, and reg 2.05(5A) was revised, to allow the Minister also to waive the 8503 and 8534 conditions in respect of applicants, and students who had finished their course of study in Australia, and who are applying for the [page 84]

new general skilled migration visas, employer nomination and regional sponsored migration scheme visas, and the business talent and business innovation and investment (provisional) visas. For overseas trained nurses who have studied bridging courses in Australia, the Minister may waive the 8534 condition if the person has become either a registered nurse or eligible for registration as a registered nurse in Australia (reg 2.05(7)). The only visa the nurse can apply for after the 8534 condition has been waived is the 457 temporary work (skilled) visa (reg 2.07AH). However, there is nothing in legislation allowing the Minister to waive the 8535 condition for government-funded students on other grounds. Certain work and holiday visa (subclass 462) holders are also subject to the 8540 visa condition, which stipulates that the holder cannot be granted a substantive visa other than a protection visa or another 462 visa. Regulation 2.05(4A) further says the Minister must not waive the 8503 or 8540 visa condition in relation to a work and holiday visa holder. Some visas, for example, the visitor (sponsored family stream (600)) visa, are subject to the 8531 condition, which means the holder must not remain in Australia after the end of the period of stay permitted by the visa. In such cases, the 8503 condition is also usually imposed concurrently. Therefore, even if the person applies for a waiver of the 8503 condition or applies for a protection visa from within Australia (which is allowed by the 8503 condition), he or she will still not be allowed to stay because of the 8531 condition. There is nothing in legislation to say whether the Minister may waive the 8531 condition, although a breach of the 8531 condition because of factors beyond the person’s control will not prevent the Minister approving another sponsorship for another 600 visa by another family member: see reg 1.20L(4). As s 41(2)(a) is a condition under s 46 for valid applications, it is

therefore a legal requirement for persons with the condition to first obtain a waiver of the condition under s 41(2A) before they can make a valid application. On the other hand, s 41(2A) does not provide an authority for the person to remain in Australia and those who do not already hold a valid visa may have to consider ways of avoiding detention while their request for the waiver is being considered. According to DIBP statistics, approximately one-third of 8503 waiver requests were approved in the 2011/12 program year, mainly due to the health of visa holders and/or Australian resident family members, visa holders being unfit to depart Australia, as well as changes to family situations that had resulted in significant hardship. In El Ess v Minister for Immigration [2004] FCA 1038, a brother and sister from Lebanon had unsuccessfully challenged in the Federal Court the validity of the 8503 visa condition, which they claimed was unlawfully imposed on their visitor [page 85] visas, which in turn invalidated their attempt to lodge an application for an orphan relative visa in Australia. In another case Assaad v Minister for Immigration [2009] FMCA 722, a husband and wife had come from Lebanon to visit their nephew. When their sponsored visitor (679) visa was about to expire, they sought a waiver of the 8503 condition and an extension to their visa, claiming civil unrest in Lebanon as the cause. A waiver was granted, and they were granted a visitor (676) visa for a further three months, but the 8503 condition was again attached to this new visa. When this new visa was about to expire, they sought a waiver of the 8503 condition again, this time claiming that their nephew’s ‘mental health’ situation had deteriorated, which required them to stay and look after him. The Federal Magistrates Court held that they would

already have known of their nephew’s condition prior to the grant of their last visa, hence this was not a circumstance which had arisen after the grant of the visa, plus the fact this was not seen to be something which would have severely affected their own situation adversely. Even though the 8503 condition provides that a non-citizen cannot be granted a substantive visa, other than a protection visa, whilst in Australia, there seems to be some confusion as to whether someone who had applied for a visa (‘the first visa’) before arriving in Australia on another visa with the 8503 condition may actually be granted the ‘first visa’ in Australia. In respect of this scenario, the Procedures Advice Manual (PAM) interestingly provides: Applications made before condition 8503 came into effect Condition 8503 does not bar the grant of a visa (whether to be granted in or outside Australia) if the application for that other visa was validly made (whether in or outside Australia) before the person entered Australia holding a visa subject to condition 8503.

PAM also provides the following example of a situation in which the above scenario would apply: [Take] a person outside Australia [who] applies for a UC-457 and FA-600 visa. The person is granted the FA-600 with condition 8503 and enters Australia on that visa. The person can still be granted the UC-457 visa because the UC-457 visa was applied for before the FA-600 visa with condition 8503 was granted. However, the person cannot make any further valid substantive applications in Australia unless condition 8503 is waived. The UC-457 visa does not have condition 8503 but since last entering Australia the person has held a visa (FA-600) with condition 8503.

[page 86]

Department of Immigration and Border Protection (DIBP) 2.19 It is essential that migration agents have a sound understanding of the Department of Immigration and Border Protection — its structure, responsibilities, offices, operations and key case officers — in order to effectively represent their clients to the DIBP.

Portfolio scope 2.20 The Department of Immigration was originally set up in 1945 when the government of the day recognised the need for a manageable migration program to cope with the fear of invasion and the declining economy following World War II. Australia’s first Immigration Minister, Arthur Calwell, told Parliament in 1946 that Australia should ‘populate or perish’, a view shared by the Leader of the Opposition, Robert Menzies. Between 1946 and 1988, Australia’s bicentennial year, over a span of 42 years, Australia’s population more than doubled from 7 million to over 15 million. Today, Australia’s population stands at around 23 million. The Department has undergone many name changes during this time. The Howard government, when it came to power in 1996, recognised Australia’s commitment towards multiculturalism and adopted the name Department of Immigration and Multicultural Affairs to better reflect its charter. The Department changed to Department of Immigration and Multicultural and Indigenous Affairs when it merged with the Department of Aboriginal Affairs in 2001, but reverted to its former name when the Indigenous Affairs portfolio

was transferred to the Department of Family and Community Services in January 2006. In January 2007, in an effort by the government to show its commitment to Australian citizenship, the department was renamed Department of Immigration and Citizenship (DIAC). Following the election of the Abbott government in 2013, the Department became the Department of Immigration and Border Protection due to the increased focus on the protection of Australia’s borders from people smuggling. The Australian Customs and Border Protection Service has transitioned into the Department of Immigration and Border Protection and is now known as the Australian Border Force (ABF), established under the Australian Border Force Act 2015. The ABF is headed by an Australian Border Force Commissioner, who will be appointed by the Governor-General for a term not exceeding five years. The ABF Commissioner will also be the Comptroller-General of Customs concurrently, and will be under the direct control of the Minister for Immigration and Border Protection. Officers of the ABF are expected to be drawn from a pool of ‘Immigration and Border Force workers’, to include DIBP as well as Customs officers, who may be subject to requirements pertaining to physical [page 87] and psychological fitness, professional and/or technical qualifications, aptitude to training and development, and drug and alcohol tests. Similar to officers of other security and intelligence agencies, ABF officers are also expected to observe secrecy and disclosure provisions, and must have the requisite level of security clearance. All ABF officers must, upon taking up duty, swear a prescribed oath or affirmation. Frontline ABF officers will be working at airports,

shipping hubs, detention centres and on the high seas, and will be expected to carry firearms whilst on duty. The immigration and border protection portfolio is also responsible for the Office of the Migration Agents Registration Authority (OMARA). Formerly, the portfolio also included the Migration Review Tribunal and Refugee Review Tribunal. However, on 1 July 2015, the Migration Review Tribunal and Refugee Review Tribunal amalgamated with the other Commonwealth merits review tribunals and became the Migration and Refugee Division of the Administrative Appeals Tribunal (AAT), which comes under the Attorney-General’s portfolio. In addition, the portfolio represents the Commonwealth’s interests in the National Accreditation Authority for Translators and Interpreters (NAATI) Limited, which is a company limited by guarantee.

DIBP responsibilities 2.21 • • • •

•

The Department’s key objectives are to: contribute to Australia’s future through managed migration; protect refugees and contribute to humanitarian policy internationally; contribute to Australia’s security through border management and traveller facilitation; make fair and reasonable decisions for people entering or leaving Australia, ensuring compliance with Australia’s immigration laws and integrity in decision-making; and administer citizenship legislation and promote Australian citizenship.

A report on the Department’s performance is outlined in its Annual Report, which can be accessed at . The current Minister for Immigration and Border Protection is Peter Dutton MP, who is assisted by an Assistant Minister, currently

Alex Hawke MP. Whilst the Ministers are responsible for the decisions of the Department, the operational functions of the Department are administered by the Secretary of the Department and an Assistant Secretary who are assisted by Deputy Secretaries and First Assistant Secretaries. The ‘policy development’ areas of the Department are located in Canberra, whereas the ‘operational’ areas are spread out in all Australian states and territories and overseas. Unless stipulated that the Minister or the Secretary must personally make a decision (for example, as in s 48B), a reference to the ‘Minister’ or ‘Secretary’ in legislation usually means an authorised or delegated officer within the Department, [page 88] and a decision by a departmental officer is usually taken to mean a decision by the Minister or the Secretary as the case may be. Hence the Minister is usually named as the respondent in litigation involving decisions of the Department even though the Minister did not make the decision himself or herself.

Department structure 2.22 The general public, including sponsors and applicants, international travellers, migration agents and lawyers, will usually meet with staff from the ‘operational’ areas at regional offices and international airports in Australia and at all overseas missions. In Australia, each state is headed by a state director and may be subdivided into regions, with each region managed by a regional manager or regional services manager. DIBP staff members are also posted to airports and Immigration Detention Centres in each state, as well as ‘safe havens’ and ‘reception centres’ for unauthorised boat arrivals.

The first line of departmental officers most likely to be met by the public is the counter staff at regional offices or overseas missions. Counter staff are authorised to make decisions on the more routine applications such as student visa and visitor visa applications. They also perform relatively straightforward interviews such as citizenship applications. The more complex matters, for example, permanent residence, temporary residence and compliance issues, are referred to the respective ‘backroom’ areas for further processing and decision. Departmental officers are represented overseas in a number of Australian missions: •

•

•

Australian Embassy — this is the main representative office of the Australian government in the national capital of a nonBritish-Commonwealth foreign country, for example, Washington, Beijing, Tokyo, Moscow, etc. Australian High Commission — this is the main representative office of the Australian government in the national capital of a British Commonwealth country, for example, London, Ottawa, Singapore, Port Moresby, etc. Australian Consulate-General, Consulate or Honorary Consulate — this is a representative office of the Australian government in a major capital or non-capital city of a foreign country, for example, Hong Kong, Vancouver, Oslo, Sarajevo, etc.

In certain countries where Australia is not represented, Canadian missions may provide consular assistance to Australians overseas, as in Damascus and Havana. However, these Canadian missions do not normally provide Australian visa services and visa applicants usually need to approach an Australian mission in a nearby country. Depending on the size of the Australian overseas mission and the number of staff, the officer in charge of immigration operations is usually a Chief Migration Officer (usual diplomatic title ‘Counsellor’), Principal Migration Officer (‘First Secretary’) or Senior Migration Officer (‘Second Secretary’).

[page 89] They are assisted by any number of locally engaged staff (LES), who are either native persons from the country where the mission is located or other expatriates including spouses of Australian diplomatic or consular officers. Where there is no DIBP representation (usually at places where the immigration workload is not sufficient to justify the posting of a migration officer), other staff at the mission (for example, DFAT or Austrade officers) would usually assume responsibility for routine immigration work (for example, grant of short-term tourist visas) and a DIBP officer at a nearby mission would take on the more complex cases (for example, permanent residence applications) either by correspondence or on a ‘visit-as-required’ basis; particularly where face-to-face interviews are required. A complete list of Australian overseas missions and DIBP offices in Australia and at overseas posts can be found at and .

[page 90]

Lodging a visa application Visa application charges 2.23 The Department’s practice in relation to collection of fees and charges is that it prefers credit cards, EFTPOS or bank cheques. Personal cheques are not accepted. The rationale for not accepting personal cheques is said to be that certain visas, for example, visitor visas, are granted on the spot upon payment of the visa application charge; hence if a cheque is subsequently dishonoured, then the application would not have been valid and the grant of the visa would have been void, and it would be very difficult to pursue if the person had already used that visa (for example, to travel). Departmental charges are indexed, usually biannually. While some increases can be rather substantial, smaller amounts are usually adjusted in line with the consumer price index (CPI). On 17 September 2014, the Minister announced that a review will be undertaken in relation to border protection, including visa charges, with the view ‘to produce a budget neutral outcome, in terms of any cost to revenue, however, it does provide the opportunity to align the border fees, charges and taxes regimes with the practices of business resulting in more secure and efficient borders’. The outcome of this review was to harmonise visa application charges when there was a difference between the onshore and offshore charge (for example, partner visas). Targeted visa application charge increases were also implemented from 1 July 2015, which were determined by a number of factors including demand.

First instalment visa application charge

2.24 The first instalment visa application charge must be paid at the time the visa application is made. As can be seen at s 46 of the Migration Act and Sch 1 to the Migration Regulations, the visa application charge is an essential element in the validity of a visa application. According to reg 2.12C, the visa application charge shall consist of: •

•

The first instalment, comprising of: – the ‘base application charge’, and any ‘additional applicant charge’ as applicable; – the ‘subsequent temporary application charge’, if applicable; and – the ‘non-Internet application charge’, if applicable; and The second instalment. [page 91]

Base application charge and additional applicant charge 2.25 Prior to 1 July 2013, the visa application charge was levied on a ‘per application’ basis. However, as from 1 July 2013, the charge was changed to a ‘per applicant’ basis, with the primary applicant paying a ‘base application charge’, and secondary applicants paying an ‘additional applicant charge’. Depending on the type of visa applied for, the visa application charge can range from zero (for example, for Electronic Travel Authorities) to approximately $7200 (for some business skills visas). The charge is non-refundable if the application is withdrawn or refused, and is only refundable if the application was invalidly made. By way of example, as at 1 July 2017, in accordance with Sch 1 Item 1104AA(2)(a), the main applicant for the business talent

(subclass 132) visa will pay a ‘base application charge’ of $7130. The applicant’s spouse, who is over 18, will pay an ‘additional applicant charge’ of $3565 and their child, who is aged under 18, will pay an ‘additional applicant charge’ of $1780.

Subsequent temporary visa application charge 2.26 Under reg 2.12C(5) of the Migration Regulations, some applicants who apply for certain temporary visas as prescribed by legislative instrument, and whose previous temporary visa was also granted in Australia and is among the visas specified by legislative instrument, are liable to pay a ‘subsequent temporary visa application charge’ of $700 (reg 2.12C(6)). This charge is in addition to the normal base visa application charges for that visa. However, the visa applicant is not liable for the subsequent temporary visa application charge if the base application charge for that visa is ‘nil’. By way of example, as at 1 July 2017, take a person who applied for and was granted a visitor visa (subclass 600) while that person was in Australia. If that person applies for a further 600 visa whilst in Australia, then he or she will have to pay the base application charge per Sch 1 Item 1236(2)(a)(i) of $345 (and any additional applicant charge as relevant), plus a ‘subsequent temporary application charge’ of $700.

Non-Internet application charge 2.27 Under reg 2.12C(7) of the Migration Regulations, if a visa can be applied for through the Internet, as prescribed by legislative instrument, but an applicant chooses to make a non-Internet application, then he or she will be liable to pay the base application charge plus a non-Internet application charge of $80 (reg 2.12C(9)), unless the person comes within prescribed circumstances as prescribed by legislative instrument for which the non-Internet

application [page 92] charge is not payable. If the base application charge for that visa is nil, then the non-Internet application charge will not be payable. By way of example, as at 1 July 2017, an applicant for a working holiday (subclass 417) visa is liable to a base application charge of $440 per Sch 1 Item 1225(2)(a), if the application is lodged through the Internet. However, if the visa applicant chooses to lodge a nonInternet application, he or she will have to pay an additional nonInternet application charge of $80. The only prescribed circumstance for which the non-Internet application charge is not payable for the subclass 417 visa is where the applicant claims to have a dependent child, or the applicant holds a 417 visa and applies for a second 417 visa and claims his or her first employer does not have an ABN number (working holiday visa holders are permitted to apply for a second 417 visa if they have worked three months or more in a prescribed field in rural Australia).

Second instalment visa application charge 2.28 For many visas, there is a second instalment visa application charge which must be paid before the visa can be granted. It can range from about $2000 for a parent visa to about $13,000 for an investor retirement visa and nearly $50,000 for a contributory parent visa. A fact sheet on the visa charge arrangements is available on the DIBP website. The second instalment visa application charge also includes the health services charge and the English language charge, if these charges are payable for the visa.

Health services charge 2.29 All applications for visas where a mandatory assurance of support is required are subject to a migration health services charge before the visas can be granted. The charge is leviable under the Migration (Health Services) Charge Act 1991. Unlike the bond under the assurance of support, which is payable only in respect of persons over 18, the health charge is payable for every applicant in the application irrespective of age, with the exception of applicants for the child (child, adoption and orphan relative) visa. For example, the health services charge for a contributory parent visa can be as high as $50,000. This is intended to offset the health cost and access to Medicare in their first two years of settlement in Australia. The health charge, which is indexed annually, is payable at any DIBP office. When DIBP advises an assurer of an assurance of support that payment of the bond is required, it will at the same time advise that the health charge is also payable. The amount of the health charge for a visa class can be found in Sch 1 to the Migration Regulations. [page 93] Access to Medicare 2.30 All persons who are permanent residents, as well as persons on partner (provisional or temporary) visas, and persons on contributory parent (temporary) visas are eligible for access to Medicare. The Health Insurance Act 1973, as amended in October 2000, also provides that certain persons in Australia applying for permanent visas and whose spouse, parent or child is an Australian citizen or permanent resident, or who hold a visa permitting them to work, may

be able to access Medicare during the processing of their permanent visa application. However, persons applying for parent visas are specifically excluded. Release of health charge 2.31 The health charge is not refundable except in exceptional circumstances, where the visa applicant: • • • •

did not travel to Australia before the expiry of the visa, or had the visa cancelled before entering Australia, or withdraws the visa application, or is not allowed to enter Australia.

English language charge 2.32 For most skilled migration visas, it is a mandatory requirement that the primary applicant must have at least a minimum threshold level of English proficiency or the application will fail. For other visas, before the visa is granted visa applicants may have to pay a second instalment visa application charge if they do not have functional English capability. The English language charge is payable only in respect of applicants, whether primary or secondary, who are aged 18 or over. Upon payment of the charge, the applicant is then entitled to 510 hours of English language tuition. Schedule 1 to the Migration Regulations details the visa classes for which this English language charge is payable.

Credit card surcharge 2.33 Since 19 April 2014, the Migration Regulations have been amended to provide for the imposition of a credit card surcharge on visa application charges. Under a new reg 5.41A, if a credit card is used for a transaction of a visa application charge (either online or by other means), then a surcharge will be levied. The amount of

surcharge will depend on the type of credit card used: • • •

for Visa or Mastercard: 0.98 per cent of the visa application charge; for American Express or Japan Credit Bureau (JCB) credit card: 1.4 per cent of the visa application charge; and for Diners Club: 1.99 per cent of the visa application charge. [page 94]

The only circumstances where the credit card surcharge may be refunded or waived is specified by legislative instrument to be where the payment was made in local currency in Singapore or New Zealand. The credit card surcharge applies to a range of fees and charges as prescribed by legislative instrument, being: • • •

sponsorship fees or charges; nomination fees or charges; and visa application fees or charges.

Refund policy 2.34 Previously, departmental policy regarding refund of visa application charges was that refunds would not be possible once an application had been validly lodged. Amendments have been made to the Migration Regulations since November 2009 to allow for refund of visa application charges in certain circumstances, including: • •

where the lodgment of the application was unnecessary at time of application; for students whose schooling has been affected by closure of their education providers, and who need to apply for another

• •

•

student visa to continue their education in Australia; where an applicant or payer of the charge is deceased before the application is decided; where a 457 visa application is lodged with a business sponsorship or nomination, and the business sponsorship or nomination was subsequently rejected or withdrawn; and refund of second instalment charge where a student was not able to commence an English course after a visa had been granted because the education provider had collapsed.

The Migration Regulations were further amended on 21 December 2009 to provide for refund of second instalment visa application charges where a person, after a visa had been granted, was unable to commence their English course under s 4C of the Immigration (Education) Act 1971. Types of persons who would be eligible include holders of: • • •

business skills visas; employer nominated (ENS, RSMS and Labour Agreement) visas; and distinguished talent visas.

The situations where the person would be eligible for a refund of the second instalment visa application charge are where: • • • •

the person had died; the visa was cancelled; the visa had ceased; or the obligation of the Commonwealth to provide English training to the person had ceased. [page 95]

Prescribed arrangements for lodging visa

applications 2.35 Schedule 1 to the Migration Regulations specifies where and how an application for a visa must be made, and, from 2015, often refers the applicant to a legislative instrument. The legislative basis for this lies in reg 2.07(5) of the Migration Regulations. (5) If an item of Schedule 1 prescribes criteria or requirements by reference to a legislative instrument made under this subregulation, the Minister may, by legislative instrument, specify any of the following matters for the purposes of such a criterion or requirement: (a) an approved form for making an application for a visa of a specified class; (b) the way in which an application for a visa of a specified class must be made; (c) the place at which an application for a visa of a specified class must be made; (d) any other matter. …

Visas not listed by legislative instrument, for example, the electronic travel authority visa, would still be prescribed under Sch 1 to the Migration Regulations. When a paper-based visa application is being lodged, the Regulations stipulate that it must be lodged at a prescribed place, which would usually mean a DIBP office in Australia, or an Australian diplomatic or consular office in an overseas country. For some visas though, the Migration Regulations, in Sch 1 for that visa class, may also stipulate that … the application must be made by: (i) posting the application (with the correct pre-paid postage) to the post office box address specified by the Minister in an instrument for this subparagraph; or (ii) having the application delivered by a courier to the address specified by the Minister in an instrument for this subparagraph.

The question as to whether a post office box can be seen as an Immigration office was the subject of a challenge in Chen v Minister for Immigration [2013] FCAFC 133. In this case, Chen held a provisional business visa and was applying for the permanent business visa. On the day before his temporary visa was about to expire, he posted his application for the permanent visa by Express Post addressed to the Department’s GPO Box in Adelaide, which was prescribed in a

legislative instrument for this purpose. The application reached the departmental PO Box the next day, which was the last day of Chen’s temporary visa validity. However, the contractor responsible for collection from the PO Box had already cleared the box early that morning, and Chen’s application was not collected and delivered to the Department until the next day, when his visa had expired. The Minister held that Chen’s application was invalid as the Regulations dictated that he must hold a valid visa at time of application, [page 96] and his visa had already expired when it reached the Department. In an initial appeal to the Federal Circuit Court, the primary judge had agreed with the Minister that a post office box was not an office of Immigration, and Chen’s application had not been properly lodged with the Department. In a further appeal to the Full Court of the Federal Court, the primary judge’s decision was overturned when the three appeal judges were of the view that, as the GPO box was a prescribed address for valid lodgment of visa applications, it must be interpreted to mean it must at least be a part of the operations of an office of Immigration.

Online visa applications 2.36 Immigration is continually extending its Online Visa Service on the Internet. Applications are subject to the same requirements as non-Internet applications, and payments are made via credit card online or by another accepted electronic payment method. The types of applications which can be lodged online for both offshore and onshore applicants are listed on the Immigration website. For example, the new employer nomination (186, 187) as well as business innovation and investment (132, 188, 888) visas, and the new general skilled migration (189, 190) visas can now only be

applied for electronically, and can be applied for either onshore or from offshore. DIBP has established an ImmiAccount facility for persons lodging their applications online. ImmiAccount is an online system that lets applicants create, submit, pay for and manage their online visa and Citizenship by Descent applications in one place. ImmiAccount also connects the applicant to other online services including My Health Declarations, Visa Finder, Visa Entitlement Verification Online (VEVO), and the Pricing Estimator. Migration agents are also able to create an ImmiAccount for their own use. ImmiAccount accepts all online visa applications except Electronic Travel Authority (ETA). Citizenship by Descent is the only citizenship application that can currently be submitted through ImmiAccount. One important consideration when lodging a visa application through the Internet is timing due to different world time zones. The Migration Regulations, at reg 2.10C, as well as in Sch 1 for the appropriate visa classes for which Internet applications are acceptable, specify the time when an Internet visa application is taken to have been lodged. Basically, an Internet application is taken to have been made: • •

if Australian Eastern Standard Time (AEST) is in effect in Australia — at the time identified using AEST that corresponds to the time at which the Internet application is made; or if Australian Eastern Standard Time (AEST) incorporating Daylight Saving Time (DST) in the Australian Capital Territory (ACT) is in

[page 97] effect in Australia — at the time identified using AEST incorporating DST in the ACT that corresponds to the time at which the Internet application is made.

Hence during summer, when the ACT is in daylight saving time, an application lodged over the Internet in Queensland (which does

not have daylight saving) at 11.01 pm local time would mean it is lodged at a time already past midnight in the ACT. If the application is dependent on the applicant having a valid substantive visa at the time of application, then the applicant’s substantive visa may already have expired at time of application based on ACT daylight saving time.

Multiple visa applications 2.37 There are generally no legal or policy restrictions on how many visas a person may apply for at any one time, as long as each application is validly made; that is, correct forms are completed and relevant application charges paid for each separate application. However, some restrictions do apply to certain visas; for example, an applicant is not permitted to have more than one parent visa application pending with the Department at any one time. Note, however, under s 51(1) the Minister may consider or dispose of visa applications in any appropriate order.

‘Automatic conversion’ of application 2.38 The Migration Act 1958 was amended in December 2014 by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, which among other things inserted a new s 45AA to provide for ‘automatic conversion’ of applications for prescribed visas. Section 45AA provides that: • •

•

if a person, or a class of persons, has made a valid application for a visa (called the ‘pre-conversion visa’); and that visa has not been granted to the person, regardless of whether a migration decision has been made on that application; and since the application:

the requirements for making a valid application for that visa have changed; – the criteria for the grant of that visa have changed; or – that class of visa has ceased to exist; and had the person applied for that visa after the occurrence of the event(s), the application would not have been valid, or a visa could not be granted, –

•

THEN, the Migration Regulations may specify in a regulation (called the ‘Conversion Regulation’) that the application for the ‘preconversion visa’: [page 98] • •

•

is taken not to be, and never to have been, a valid application for that ‘pre-conversion visa’; and is taken to be, and to have always been, a valid application (called the ‘converted application’) for another visa of a different class; and the visa application charge paid for the ‘pre-conversion’ visa application is taken to be the visa application charge for the ‘converted application’, regardless of any difference in the visa application charge which would have applied to the two visas.

So far, however, the only ‘Conversion Regulation’ is at reg 2.08F, which provides that an application for a permanent protection (866) visa by unauthorised maritime arrivals is taken to be an application for the temporary protection (785) visa. Nevertheless, the wording of s 45AA leaves it open for other visas or classes of visas to be prescribed for this purpose. The Migration Amendment (Conversion of Protection Visa Applications) Regulations 2015 amended the Migration Regulations on 18 September 2015 to clarify that reg 2.08F would apply to any

pre-conversion permanent protection visa application (that is, it would become a temporary protection visa application) even if the applicant had appealed against the Minister’s decision on their preconversion application, and the Tribunal or court had made a decision in favour of the applicant.

Appointment of migration agent or authorised person 2.39 If a migration agent or solicitor acts for a client, form 956 Advice by a migration agent/exempt person of providing immigration assistance signed by the client and counter-signed by the agent or solicitor, must be attached to the application. In fact all sponsorship or nomination forms, as well as visa application forms, now incorporate a section which needs to be completed if an agent is used. Without a completed form 956, the Department will not release or convey any information about the client to the agent. A completed form 956 is especially important where the client is switching agents as agents should not be seen to be ‘poaching’ clients from other agents. If a client decides to change agents, the client should advise the former agent that his or her services are no longer required, and request the former agent to release all relevant papers to the new agent. Whilst the appointment of a migration agent is on an individual basis, form 956 has a section to allow for other agents in the same firm to receive correspondence from the Department on behalf of the client in case the first-named agent is unavailable or unable to continue to act for the client for any reason. If persons do not use a migration agent, they can still appoint an ‘exempt person’ to represent them in their immigration matter, in which case form 956 is also used. ‘Exempt persons’ can include:

[page 99] • • • • •

a close relative, that is, spouse, parent, child, brother or sister; a sponsor or nominator of the visa applicant; a member of Parliament, or his or her staff; an official whose duties include providing immigration assistance; or a member of a diplomatic or consular mission, or international organisation.

The situation is similar with the AAT. Under the Migration Act, at ss 312B and 332G, a registered migration agent or ‘exempt person’ must notify the AAT that he or she is providing immigration assistance to a review applicant, and include the date, the agent’s registration number and signature, and the review applicant’s full name. The Tribunal must then notify Immigration of this information. The information can be provided at the time of lodging a review application, or within 28 days of the agent commencing to act for the applicant. A penalty applies if the agent does not comply with s 312B. Where an agent is acting for both parties, for example, where a husband is sponsoring a wife, or an employer nominating an employee, it is a requirement for both parties to sign separate forms 956. Where an agent is acting for both parties, however, the agent should be wary of possibilities where a conflict of interest may arise should the parties subsequently have a falling out. In situations such as this, the agent should seriously consider not continuing to act for either party. Apart from registered migration agents and ‘exempt persons’, applicants may also appoint ‘authorised recipients’, who are not

registered migration agents, but to whom correspondence for the applicant from the Department may be sent. As these ‘authorised recipients’ are not registered migration agents nor ‘exempt persons’, the Department will not be able to discuss matters concerning the applicant with them, and any attempt by these persons to provide purported immigration assistance to the applicant will be an offence under the Migration Act 1958. Under s 494D(5), if the Minister suspects that an unregistered migration agent is providing immigration assistance to an applicant and has been nominated as the authorised recipient, the Minister can decide not to correspond with that person, as long as the Minister has given notice of his or her intention to the applicant. It is possible that ‘authorised recipients’ may have access to confidential information about the applicant through the correspondence that they receive from the Department for the applicant. Only one ‘authorised recipient’ may be appointed at any one time, and form 956A is to be used for this purpose. When being appointed as a lawyer or migration agent, one needs to be certain as to the extent to which the client expects the agent to provide assistance. This includes the circumstances in which an agent is permitted to sign documents on the client’s behalf. For DIBP applications, it is clear that the actual applicant must sign the forms. However, this may not be as clear with [page 100] applications for review to the Tribunals. On the application form to the AAT, for example, the agent is permitted to sign the form on the client’s behalf. This may be understandable in situations where the agent is unable to get the client to sign the form for the review application to be lodged before the time limitation. However, the situation where an agent signs, or purportedly signs, other documents on behalf of clients has been brought before the

courts. In SZSJA v Minister for Immigration and the Refugee Review Tribunal [2013] FCAFC 158, an applicant for a protection visa had brought his case to the RRT through a migration agent, after his application was refused at the primary stage. The RRT had sent him a ‘Response to Hearing Invitation’, which was apparently signed by his agent Li without his knowledge, and Li’s assistant had somehow forgotten to tell him of the hearing date, and as a result he had not attended the hearing. After his appeal was rejected by the RRT, the applicant appealed to the Federal Circuit Court, but the primary judge dismissed his appeal on the grounds that he was complicit as he had trusted his migration agent to prepare documents for him, and saw no difficulty in having his agent sign the form on his behalf. On appeal, the Full Court of the Federal Court did not make a finding as to whether fraud had been committed. However, it nevertheless remitted the case back to the Federal Circuit Court for it to make its own findings as to the agent’s state of mind, and whether the agent should be taken to have been acting in the appellant’s best interests in placing the appellant’s signature on the form without authority.

Notifying the Minister of residential address 2.40 Visa applicants have the following obligations under the Migration Act and the Migration Regulations to keep the Minister informed of their residential address for notification and communication purposes: •

•

•

an applicant must include his or her residential address in an application, otherwise the application will be invalid (reg 2.07(4)); an applicant must tell the Minister the address at which he or she is residing while the application is being processed (s 52(3A)); if the applicant proposes to change his or her place of abode for 14 days or more, the applicant must tell the Minister the

•

•

•

new address and the proposed period of residence at that new address (s 52(3B)); business skills migrants have to keep the Minister informed of their address within the first three years after grant, and failure to notify the Minister of their address carries a fine of $250 (reg 5.20(1)(a)); most persons on compliance monitoring conditions are also required to notify the Minister of their intention to change address at least two days before the event (Sch 8 Item 8506); and overseas students have to keep their education provider informed of their address within seven days of arrival in Australia, and of any change in address within seven days of such occurrence (Sch 8 Item 8533(a)). [page 101]

Another person, including an agent or solicitor, may be nominated to receive mail on behalf of the applicant (s 494D(1)), however only one other person may be nominated at any one time. If another person is nominated on behalf of the applicant to receive notifications, then the applicant is taken to have received the notice when that notice is sent to the other nominated person, although it does not mean the Minister cannot also send a notice to the applicant separately. If there is more than one applicant in an application, then the fact that a notice is sent to any one of the applicants means that all other applicants on that same application are also taken to have received the notice (s 52(3C)). Clients are encouraged to use the proper change of address forms to notify the Department of these details (form 929 and form 122 for business skills visa holders).

Reference to the Minister, Secretary or Australian Border Force Commissioner 2.41 Unless it is stipulated that the Minister or Secretary or Australian Border Force Commissioner must personally make a decision (for example, as in s 48B), the reference to the ‘Minister’ or ‘Secretary ’ or ‘Australian Border Force Commissioner’ in legislation usually means an authorised or delegated officer within the Department or ABF. A decision by a departmental or ABF officer is usually taken to mean a decision by the Minister or the Secretary or the ABF Commissioner, as the case may be. Hence the Minister is usually named as the respondent in litigation involving decisions of the Department, even though the Minister has not made the decision himself or herself.

Adding dependants after lodgment of application 2.42 A child born after an application is made is taken to have applied at the same time as the parent. The child does not have to meet the criteria relevant at the time of application, except for sponsorship requirements, but all other criteria need to be satisfied at the time of decision. It is obviously good practice to inform Immigration of the birth of a child, together with a copy of the child’s birth certificate, so that Immigration are aware that a child has been born to the visa applicant(s). It is also possible for a partner and dependent children to be included in some permanent visa as well as certain temporary visa applications after the application has been lodged. However, this can be done only if the inclusion of the partner does not affect the validity of the original application; for example, as it would in a remaining relative visa application. Immigration also needs to be told of this so that the partner and children can be added to the application.

[page 102] Addition of subsequent visa applicants will necessarily attract an Additional Applicant charge. However, the addition of a partner after lodgment of an application is specifically barred for skilled (residence) (subclass 887) visas.

Change in circumstances 2.43 Section 104 provides that the Minister must be notified of any change of circumstances after lodgment of a visa application as soon as possible, otherwise any visas so granted may be subject to cancellation. This is because the person may no longer be eligible for the visa due to the change in circumstances. For example, say a person applied for and was granted a remaining relative visa but between the time of application and the time of decision, that person got married without informing the Minister. As that person would no longer satisfy the requirements for the grant of that visa, the visa would be cancelled when the Minister discovered the marriage. For applicants who are in Australia at the time of visa grant, this provision applies to changes in circumstances only before the visa is granted. However, if the applicant is outside Australia at the time of visa grant, then changes in circumstances must be notified right up until the time of his or her being immigration cleared, regardless of whether the change of circumstances had occurred before or after visa grant. For example, in Nair, Dharmendra [2004] MRTA 6828, Nair was sponsored by his Australian wife for a partner (provisional) visa, and arrived in Australia on a 309 visa. Three days before his arrival, his wife faxed a letter to Immigration withdrawing her support for Nair’s visa. After attending an interview at the Department following a

notice of intention to cancel his visa, Nair’s visa was cancelled for breach of s 104, because he had not informed Immigration of the change in circumstances concerning his marital relationship. A subsequent appeal to the MRT proved to be unsuccessful.

Government assistance to certain visa applicants Immigration Advice and Application Assistance Scheme (IAAAS) 2.44 Immigration previously administered the Immigration Advice and Application Assistance Scheme (IAAAS), which funded a number of organisations, including solicitors and migration agents, to assist ‘disadvantaged’ applicants who needed assistance to complete application and sponsorship forms, etc, including at merits review (but not judicial review) stages. This assistance was available to: •

persons in immigration detention applying for protection visas; [page 103]

•

•

persons in the community in financial difficulty, or who had suffered torture and trauma, and who were applying for protection visas; and other ‘disadvantaged’ persons in the community (for example, people from non-English speaking backgrounds or those living in remote localities or suffering physical and/or psychological disabilities) who were applying for nonprotection visas.

However, the government announced that funding for the IAAAS scheme would be discontinued from 31 March 2014 in respect of unauthorised maritime arrivals who seek protection visas, either at

the primary or merits review stages. They are, however, able to fund their own applications and appeals with registered migration agents or seek assistance from pro bono practitioners. The government’s move has been labelled as ‘further discriminatory treatment of asylum seekers by mode of arrival, something which is explicitly prohibited under the Refugee Convention’ by the Asylum Seekers Resource Centre (ASRC).

Asylum Seekers Assistance Scheme (ASAS) 2.45 Immigration administers, in conjunction with the Australian Red Cross, the Asylum Seekers Assistance Scheme (ASAS). This program provides financial assistance, limited health care, referral services and access to work for certain people in the community who have sought protection visas and have no other means of support at the primary, but not review, stage.

Legal Aid 2.46 The Federal Attorney-General’s Department provides legal aid assistance to some visa applicants. However, due to funding cuts, grants of legal aid to immigration matters have been severely curtailed in recent times. Legal Aid services in each state assess each case to determine whether it falls within the assistance guidelines. Nevertheless, the Australian Law Reform Commission has recommended that sufficient federal funding should be made available to fund the preparation of migration applications and ministerial representations, on a means tested basis, for spouse, child and protection visas, and on character refusals at primary and merits review stages.

Access to Medicare 2.47 Certain applicants who are in Australia can access Medicare while their applications are under consideration. It is for the Medicare

office, not the DIBP, to determine whether a person in Australia who is not an Australian citizen or permanent resident is eligible for a Medicare card. However, at times, Medicare may require a person to obtain a letter from Immigration to verify their eligibility status. [page 104] Under the Health Insurance Act 1973, eligibility for Medicare benefits is restricted to Australian citizens, Australian permanent residents, New Zealand citizens, and persons who: • • • •

are temporary visa holders and have applications for permanent visas pending; and have a spouse, parent or child who is an Australian citizen or permanent resident; and have a temporary visa that permits them to work; and have not applied for a parent visa, unless they are within a prescribed class of persons.

[page 105]

Considering the application Valid and invalid applications 2.48 At the commencement of this chapter, we examined the legislative requirements which determine the validity of a visa application. The Migration Act also provides guidance regarding invalid visa applications. Section 47(3) of the Migration Act states that the Minister must not consider an invalid application, and s 47(4) states that a decision that an application is invalid is not a decision to refuse. As reviews are only available where there is a decision to refuse, there are no review rights if an application is invalid. Therefore, care should be exercised in lodging a valid application in the first instance, because the applicant may hold a valid visa when the initial application is lodged, but by the time they are advised that their application is invalid, their visa may have expired, which could affect their future visa options. On 28 July 2009, the Commonwealth Ombudsman released a statement criticising Immigration’s handling of invalid applications, and the untimely advice to applicants about their applications, which caused many to be ‘at risk of becoming unlawful or having their visa options severely limited’. The Ombudsman made several recommendations to DIBP on how it could improve its handling of invalid applications, and the Department is said to have accepted all recommendations.

Visa capping and suspending of applications

2.49 Under s 47(1) and (2), the Minister must continue to consider a valid application until it is approved, withdrawn or refused. However, the Minister may use his or her powers to cap visa numbers on certain visas. There are two capping systems under the Migration Act. First, s 39 gives the Minister the power to set the maximum number of visas of a particular class that may be granted in a financial year. Under the previous general skilled visas scheme, most overseas students who had completed their studies in Australia could apply for permanent residence, which had created a huge backlog of applications in the pipeline. As the situation was becoming unmanageable for the Department, on 8 February 2010 the Minister used his powers under s 39 to apply the ‘cap-and-cease’ to offshore GSM applications lodged before 1 September 2007, to clear at least part of the backlog. Under this arrangement, once the cap was reached, all such applications, including those applications where processing had commenced (including the review stages) but which had not been finally determined by the time of the cap, would be ceased and the visa application charge refunded to the applicants. [page 106] Second, under ss 85 and 86, the Minister may specify by legislative instrument the maximum number of visas which may be granted in a financial year. Any applicants who cannot be granted a visa in that financial year because the maximum number has been granted have to wait until the following financial year. This is the ‘cap-and-queue’ system, and is applicable to most visas, particularly in the family migration visa categories. For example, the cap for parent visas was only 1550 visas for the 2016/17 financial year, and the queue is said to be some 30 years. Nevertheless, under s

87, visas for partners and children of Australian citizens and permanent residents cannot be capped. Furthermore, when the Minister tried to set a cap on protection visas in December 2003, it was ruled to be invalid on 20 June 2014 by the High Court in the judgments of M150/2013 v Minister for Immigration; S297-2013 v Minister for Immigration [2014] HCA 27. However, s 85(1) as amended by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 now states that the Minister may, by legislative instrument, determine the maximum number of visas (including protection visas) of a specified class or specified classes that may be granted in a specified financial year. Nevertheless, s 85(2) goes on to say that the limitation of visas does not apply to temporary protection visas or safe haven enterprise visas. Furthermore, under s 87A, the s 86 cap does not apply to applicants: • •

•

who would have been granted a visa had the cap not been enforced; and who, because of factors beyond their control, were unable to meet health or character requirements before the cap came down (for example, an applicant would have been eligible for the grant of a visa except she was pregnant and could not undergo x-ray tests); and who had, subsequent to the cap being applied, satisfied those health or character requirements.

The Minister also has the power under s 84 to suspend visa processing (including protection visas), as well as the power to set priorities in dealing with certain applications under s 91. For example, there is a Ministerial directive setting different priorities on processing of various skilled visa categories. On 14 September 2015, Assistant Minister for Immigration

Senator Cash announced a further ‘cap-and-cease’ for outstanding skilled visas in subclasses 175, 176 and 475. This move has been branded by some in the migration advice industry as being ‘callous and indifferent’.

Assessing each person in the application 2.50 The processing procedure for visa applications is covered in Migration Act Pt 2 Div 3 Subdiv AB Code of procedure for dealing fairly, efficiently and quickly with visa applications, which forms part of the ‘natural justice’ provisions under the Act. [page 107] An important concept is that each person is an applicant in his or her own right. Although the regulations for most visas refer to primary and secondary criteria and allow family unit members to lodge an application at the same time and place as the principal applicant, each person in the application is in fact checked to see if they have made a valid application before they are assessed against the criteria for the visa. It is possible that some of the family unit members will be able to make a valid application while others will not. For example, say a wife came to Australia by herself, and applied for a substantive visa, which was refused. Her original substantive visa had expired when her husband also arrived. Her husband lodged a substantive visa application for himself and included his wife in his application. In this case the husband would have made a valid application but the wife would not as she would be subject to s 48. Similarly, one of the requirements for an onshore skilled graduate (485) visa is that all applicants must hold an ‘eligible student visa’. Hence if the primary applicant is in Australia on an ‘eligible student

visa’ but his or her partner is on, for example, a tourist visa, then if they lodged a combined application, the primary applicant would have made a valid application but the secondary applicant would not. In 1211530 [2013] MRTA 3430, Zhuyu Yu had been sponsored by her husband in Australia for a partner (309) visa from China. In her application she had included her son Xuanhe Wu as a secondary applicant. However, while Yu, the primary applicant, was outside Australia at time of application and time of decision, her son Wu was in Australia on a student visa at both points of time. As a result Yu was granted the visa but Wu was not. In the appeal to the MRT, the Tribunal held that each person of a family unit applying for a visa is taken to be an applicant for the purpose of the legislation. Members of a family unit are not exempted from the requirements, unless otherwise stipulated in legislation. Hence while Yu had made a valid application for the visa, her son had not. Section 47(1) and (2) states the Minister must consider a valid application until such time as it is either approved, refused or withdrawn. Once an application is determined to be valid in accordance with s 46, each applicant in the application will be considered under the Class and subclass visa structure in this order: •

•

•

An applicant for a particular visa class will be assessed against the nominated visa subclass or, if no subclass is nominated, the most likely subclass. If the applicant meets the Sch 2 primary criteria for that visa subclass, then other family members are assessed against the secondary criteria, also for that subclass. If the applicant does not meet the Sch 2 primary criteria in the nominated visa subclass, he or she is then assessed against all other subclasses in that visa class. [page 108]

•

•

•

If he or she meets the primary criteria of one of the other subclasses, then other family members are assessed against the secondary criteria of that other subclass. If the applicant does not meet the primary criteria for any subclass in that visa class, then the whole procedure is repeated for other persons in the application until someone meets the primary criteria for a visa subclass. If every person included in the application fails to meet the primary criteria for any of the subclasses in that class of visas, then the application is refused.

Questions have often been asked of the situation where an applicant seeks advice from the Department but is given incorrect information, and the applicant, acting on this erroneous advice, lodges an application which is rejected. In this situation, does the applicant have any recourse to relief? The short answer to this has to be ‘no’, as it is a general principle that misleading or incorrect advice given by a departmental officer does not give rise to an estoppel or exempt an applicant from complying with the relevant statutory requirements for the visa in question: see Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic [1990] FCA 22 per Gummow J.

Invitation to submit application for another visa 2.51 Regulation 2.11 in the Migration Regulations allows the Minister to invite an applicant whose visa application has been refused to make another application for a visa of another class or subclass, if the Minister, after examining the information provided in the first application, is of the opinion that the applicant would have had a chance of success if he or she had applied for that other visa in the first place. If an affected applicant is inside Australia, then the new visa must be within a visa class prescribed for the purposes of s 48 of the

Migration Act (see reg 2.12), which otherwise prevents any application by onshore applicants who have already had a visa refusal and do not now hold a substantive visa. Regulation 2.11 can only be exercised by the Minister; that is, a delegated officer at DIBP, and not by a review authority. If an applicant receives an invitation to make another visa application, then the new application must be lodged within 28 days (or 70 days, if the Minister so decides in the circumstances of the particular case) of notification of the invitation, and the applicant is liable to pay the difference between the first visa application charge and the new visa application charge (but is not eligible for a refund if the new visa application charge is less than the first).

Considering the information 2.52 Section 54, a natural justice principle, provides that the Minister must have regard to all information in an application. [page 109] However, s 54 says: (3) Without limiting subsection (1), a decision to grant or refuse to grant a visa may be made without giving the applicant an opportunity to make oral or written submissions.

Hence it is important that all relevant information should be attached to the application at time of lodgment. In fact, it has been ruled by the Federal Court that an application may be held to be invalid if the form asks for details and none are provided. The Federal Court also decided that it is not acceptable for the additional material to be submitted at time of review.

Information concerning health and character etc

2.53 Adverse information about an applicant’s health, character, qualifications etc does not have to be presented to the applicant prior to a decision to refuse because it is considered that this information has been provided by the applicant in the first place. Any negative information about health and character etc is conveyed to the applicant in the formal decision record at the time the application is refused. However, the applicant may be given an opportunity to provide further information or have follow-up health treatment before a final decision is made. Due to privacy requirements, adverse information about the health or character of an applicant is conveyed to the applicant only and not to the sponsor or others.

‘Non-disclosable information’ 2.54 Section 57 states that the Minister must provide certain information to the applicant if that information would form the basis, or part of the basis, for refusing the application. This means that the Minister, if in possession of adverse information about the applicant personally which was not provided by the applicant (for example, dob-in information, or information about the applicant’s health or character that was not disclosed during processing), then the Minister must present that information (other than ‘non-disclosable information’) to the applicant. ‘Non-disclosable information’ is defined in s 5 of the Act, being information which, if disclosed, may: • • • •

prejudice Australia’s security, defence or international relations; or be contrary to public interest and may result in judicial proceedings involving the Commonwealth; or divulge decisions of Cabinet or a committee of the Cabinet; or result in action by a person for breach of confidence if disclosed.

Often in immigration casework, adverse but non-disclosable information may become an issue, for example, dob-in information from a former spouse or [page 110] ex-partner regarding the bona fides of the applicant’s new relationship, or personal details about an applicant, which may affect their eligibility for visa grant. If an informant provides adverse information about an applicant and asks for his or her identity as well as the information to be kept confidential, and where the information is significant enough to affect the outcome of the application, the Department has the authority to withhold the information from the applicant if necessary and still make a lawful decision. This is also the case where an intelligence agency, crime authority or other government body holds sensitive information about an individual which was revealed as part of character or security checks. In Harrington v Minister for Immigration [2007] FCA 1287, Besanko J held that despite legislative provisions on non-disclosable information, a visa holder should be given the substance of the nondisclosable information as a failure to do so would be a breach of procedural fairness. In a subsequent case Ngaronoa v Minister for Immigration [2007] FCA 1565, where the substance of non-disclosable information was provided to the visa holder but his visa was still cancelled, Jacobson J held that there had been no breach of procedural fairness in that the gist of the non-disclosable information was provided but the visa holder had chosen not to respond. The issue as to whether an applicant should be told of adverse non-disclosable information was eventually settled in the High Court

case of Minister for Immigration v Kumar [2009] HCA 10, where Kumar’s application for a spouse visa was refused on the strength of anonymous dob-in information received alleging the non-genuineness of the marriage. Kumar appealed to the Migration Review Tribunal, requiring it to disclose to him ‘the identity of the informant and the full nature of the information’. The Tribunal did disclose the substance of the allegation but would not disclose the identity of the informer. Kumar then appealed to the Federal Magistrates Court without success. However, a subsequent appeal to the Full Court of the Federal Court saw the decision reversed and orders of certiorari and mandamus issued to the Tribunal. The Minister then appealed against this decision to the High Court. In a unanimous decision in favour of the Minister, the High Court held that the Tribunal did not err in refusing to disclose to Kumar the identity of the informer and made the following statement: To give the appellant a copy of the letter or tell him who wrote it would give no significance to the public interest in the proper administration of the Act which, as pointed out earlier, required that those entitled to a visa be granted one and those not entitled be refused. It is in aid of that important public interest that, so far as possible, there should be no impediment to the giving of information to authorities about claims that are made for visas. That public interest, and the need to accord

[page 111] procedural fairness to the appellant, could be accommodated. They were to be accommodated, in this case, by the Tribunal telling the appellant what was the substance of the allegations made in the letter and asking him to respond to those allegations.

‘Protected confidential information’ 2.55 In 2003, Parliament passed the Migration Legislation Amendment (Protected Information) Act 2003 to provide that certain

information received from ‘gazetted agencies’ and considered to be ‘protected confidential information’ (s 503A) is exempt from disclosure. ‘Gazetted agencies’ are defined to be enforcement, investigation or intelligence agencies either in Australia or a foreign country. Under s 503A, decision makers, including the courts or tribunals, must not divulge such information to any person other than the Minister or an authorised officer, unless the Minister authorises the disclosure of any such information in writing, and then not before the Minister has consulted the gazetted agency concerned. Section 503A further exempts the Minister or an authorised officer from being required to divulge the information to a court, tribunal, Parliament, parliamentary committee or any other body or person. Whilst s 503A prohibits primary decision makers and tribunals from divulging ‘protected confidential information’, the courts are not barred from making disclosures to interested parties. However, the Minister may make an application to the court under s 503B for the non-disclosure of the relevant information. In Kwok v Minister for Immigration [2001] FCA 1444; (2001) 112 FCR 94, a failed protection visa applicant had unsuccessfully sought access to certain documents held by Immigration received from PRC which indicated she was involved in criminal activities involving the misappropriation of funds. Kwok appealed unsuccessfully first to the AAT and then to the Federal Court. However, the decision was overturned on appeal at the Full Federal Court: NAAO v Secretary, Department of Immigration and Multicultural Affairs [2002] FCA 292; (2002) 66 ALD 545; 34 AAR 508. In Wu v Minister for Immigration [2001] FCA 89, the Minister relied on ‘protected confidential information’ to refuse Wu’s business visa on national interest grounds. Wu appealed to the Federal Court and then the Full Court of the Federal Court to no avail. In Wong v Minister for Immigration [2002] FCA 959, the applicant’s

student visa extension was refused on character grounds based on information obtained under s 503A. Justice Tamberlin upheld the Minister’s decision.

[page 112]

Communication between the visa applicant and the Minister Prescribed ways of communication 2.56 Migration legislation provides for methods of communication of the applicant (and/or agent) with the Minister and with review authorities, and vice versa. The rules of communication apply when the applicant is required to provide information or documentation as requested by the Minister or wishes to give information voluntarily. Either way, the general rule of ‘who, how, what, where and why’ should be followed.

Who? 2.57 Section 52(1) says that a visa applicant or an ‘interested person’ must communicate with the Minister in the prescribed way. An ‘interested person’ is defined in s 52(4) as someone who wants or is requested to give information about the applicant to the Minister. This may include migration agents, solicitors, sponsors, relatives, etc, or indeed anyone who wants to give the Department information about the applicant.

How? 2.58 The fundamental rule on how an applicant communicates with the Minister is provided for in legislation, which basically says an applicant must generally communicate in writing. Exceptions to this include general progress enquiries and where oral applications are permitted (for example, resident return visas, bridging visas and

certain tourist visa extensions). A person making a general enquiry about some aspect of their application can talk to the case officer by phone or make enquiries over the counter. If the enquiry is a complex one requiring detailed discussion or advice, it would be in the interest of the client or agent to formalise the request in writing for their own record as well as for the departmental file. Electronic transmissions (for example, faxes or emails) are an accepted form of communication. Indeed, many visas may now be applied for via the Internet. Faxed applications are also acceptable as long as the applicant arranges to pay the fee at the same time. Many visa application charges can now be paid by quoting one’s credit card number on the application form or via the Internet.

What? 2.59 When writing to the Department, an applicant must include his or her full name as used on the application form, date of birth, client number or file number or receipt number, and the office where the application was lodged. [page 113] All official documents, such as birth certificates, marriage certificates, educational qualifications, etc, must be provided as certified photocopies. The originals, especially those which cannot be replaced, should not be forwarded to the Department by mail but should be produced in person as the need arises. A receipt should always be requested where original documents (for example, passports) are to be retained by Immigration. The original translations of foreign language documents should always be provided as they are the official English-language equivalent of the applicant’s original papers. Translations should be done by an accredited translator at NAATI Level 3 or above.

As of 1 October 2006, the Migration Regulations were amended at reg 2.13 to include a registered migration agent who is not under suspension or caution to be in a class of persons who can certify documents, either in Australia or overseas. However, this does not extend to the witnessing of signatures on statutory declarations, etc.

Where? 2.60 Written communication can be mailed, left in a drop-box or hand delivered to a Department of Immigration office and, most importantly, it should be sent to the correct office handling the case. This would usually be the office where the application was lodged, but sometimes an application may be transferred to another, more appropriate, office. It is, however, not advisable to address an item of communication to a particular officer because the case officer may be rotated or promoted to other sections or alternatively the officer may be on extended leave and the item of communication may lie in the officer’s in-tray without being looked at for a long time.

Why? 2.61 • • • • • •

It is important to ensure that: communications with the Department are despatched in the prescribed way; sufficient details are provided to identify the relevant case file; the relevant documents (and English translations as appropriate) are attached; copies of original documents are properly certified; the communication has been received by the Department; and it is sent to the correct office, addressed to the section processing the application.

An item of communication not sent in the prescribed manner is

not taken to be received by the Minister unless it is actually received. In other words, if there is insufficient information to identify a piece of communication with a particular file and the item subsequently gets lost or misplaced, the Minister cannot be held responsible. [page 114]

Requests by the Minister for further information or to attend interview 2.62 Section 55 provides that the applicant may provide any further information as appropriate to the Minister up to the time of decision. However, this cannot be used as a delaying tactic, as the Minister is not obliged to delay making a decision just because an applicant says he or she is going to submit further information. Section 56 provides, on the other hand, that the Minister may, if he or she wishes to do so, seek further information from the applicant at any time. Section 58 provides that the Minister may invite an applicant to give further information or comments and sets out the conditions and time limits by which an applicant must provide information or comments upon request. The Minister may request information from an applicant in any form, that is, in writing, at interview or by phone. There are standard time limits prescribed in reg 2.15 to standardise practices at all Immigration offices around Australia and overseas for providing further information and documentation, attending an interview, and extensions of time.

Time limits for providing information, documentation and/or to attend interview 2.63 The time limits for providing information to the Department and/or for attendance at interviews upon request in relation to an

application for a substantive visa are prescribed in reg 2.15. The time limits are shown in Table 2.1. However, additional time is allowed for mail delivery (see Time of receipt of communication from the Minister, para 2.67 below). Table 2.1: Time limits for providing information etc Initial request

Time to provide information or attend interview Three working days

Applicant in immigration detention Application for tourist visa, Seven days medical treatment visa or short stay temporary business visa onshore Application for other visas 28 days onshore Applicant outside Australia 28 days (or 70 days as decided)

[page 115] Table 2.1: Time limits for providing information etc – cont’d Subsequent requests

Time to provide information or attend interview Two working days

Applicant in immigration detention Application for tourist visa, Seven days medical treatment visa or short stay temporary business visa onshore Application for other visas Seven days onshore

Applicant outside Australia

Seven days (or 28 days as decided)

Matters for which time limits do not apply 2.64 Regulation 2.15(2) provides that these time limits do not apply to requests for information on: • • • •

health clearances; public interest criteria; assessment of qualifications; and English language assessment,

as these kinds of information are usually obtained from other sources, largely outside the applicant’s control. If it takes longer than 28 days to provide certain information, such as complex legal documents (for example, custody orders, etc), the Minister would be expected to act reasonably and give the applicant a realistic timeframe, even if it means not enforcing the time limit. If it is clearly going to take much longer than the stipulated time limit, the applicant should contact the case officer as soon as possible to discuss alternative arrangements.

Ways the Minister may give a document to the visa applicant 2.65 Section 494B sets out the ways in which the Minister may give a document or correspondence to a visa applicant. Other sections of the Migration Act also separately set out how the AAT and the Migration Agents Registration Authority (MARA) may give documents to a person. The methods include: • •

handing it to the visa applicant personally; delivering it to the last known residential or business address of the visa applicant and handing it to a person who appears

•

to reside or work at that address who appears to be aged 16 or more; sending it by prepaid post or other prepaid means to the visa applicant’s last known residential or business address; [page 116]

•

•

sending it to a person nominated by the visa applicant (for example, a migration agent) for receipt of communications and documents on behalf of the visa applicant; and sending it by fax, email or other electronic means to the visa applicant’s last known fax number, email address or electronic address.

Under s 494D(5), if the Minister suspects that an unregistered migration agent is providing immigration assistance to an applicant and has been nominated as the authorised recipient, the Minister can decide not to correspond with the agent, as long as the Minister has given notice of his or her intention to the applicant.

Correspondence sent to authorised recipient or carer of a minor 2.66 When an applicant nominates a migration agent or an authorised recipient for the purpose of receiving correspondence from the Minister (or the Tribunal), the rule regarding time of receipt also applies; that is, the applicant is taken to have received the correspondence if it is sent to the migration agent or authorised recipient. In fact, s 494D of the Migration Act 1958 stipulates that the Minister must send the correspondence to the authorised recipient instead of to the applicant, although there is nothing to prevent the Minister sending a copy of the correspondence to the applicant as

well. This was upheld in Le v Minister for Immigration [2007] FCAFC 20, where the Full Federal Court had held that where an applicant has nominated an authorised recipient for receipt of correspondence under s 494D(1), all communications must be sent to the authorised recipient regardless of the view of the Department as to how effective this may be. In another case SZHUS v Minister for Immigration [2007] FCA 64, the Federal Court also held that procedural fairness was complied with when a notice was sent by the Tribunal to an applicant’s authorised recipient. The appellant lodged an appeal to the High Court but did not go through with it (SZHUS v Minister for Immigration [2007] HCA Trans 641). It was also established in Chai v Minister for Immigration [2011] FMCA 22, that an address for correspondence need not be specifically provided via form 956. An address, including an email address, can be provided to the Department verbally and any correspondence sent to that address will be regarded as having been validly sent. In November 2008, the Migration Amendment (Notification Review) Act 2008 amended the Migration Act 1958 s 494B(1A) to provide for the giving of documents where the recipient is a minor. In such cases (unless the minor is part of a combined application with an adult), notification to the minor must be sent, by post or electronic means, to an individual (called a ‘carer of the minor’): (a) who is at least 18 years of age; and (b) who the Minister reasonably believes

[page 117] (i) has day-to-day care and responsibility for the minor; or (ii) works in or for an organisation that has day-to-day care and responsibility for the minor and whose duties, whether alone or jointly with another person, involve care

and responsibility for the minor.

However, there is nothing to prevent the Minister also sending a copy of the notification to the minor.

Time of receipt of communication from the Minister 2.67 Section 494C sets out the timing for when a visa applicant is taken to have received a document or communication from the Minister. Other sections of the Migration Act also separately set out the timing of receipt by a person of documents and communications from the AAT and MARA. For postal delivery, migration legislation prescribes a period of time for delivery, being: • •

for mail within Australia, seven working days from date of notification; and in any other case, for example, for international mail (that is, between Australia and an overseas country, between two overseas countries, or wholly within an overseas country), 21 days (not working days) from date of notification.

However, the postal rule only applies to correspondence sent by the Department of Immigration, MARA, the AAT or the Immigration Assessment Authority (IAA). Correspondence sent by other organisations (for example, by education providers under s 20 of the Education Services for Overseas Students Act 2000) is not covered by this rule. In effect, if a letter is posted by the Department in Melbourne to an applicant with an address anywhere in Australia, then the applicant is not taken to have received it until seven working days later. If a letter is posted by the Australian High Commission in Singapore to an applicant with an address in the same city, then the applicant is not taken to have received it until 21 days later; even if the person in fact receives it the very next day.

If the document of notification is despatched by mail, it must be done within three days of its date; otherwise the above prescribed time periods do not apply. The date of the postmark on the envelope is usually accepted as evidence of when a particular document was sent. Hence it is always good practice to retain the envelope in case disputes arise subsequently as to when a letter was actually sent. If correspondence is delivered by hand: •

to an applicant (or agent) in person — then the applicant is taken to have received it immediately; or [page 118]

•

to a person at an applicant’s last known residential or business address who appears to reside or work at that address and who appears to be over the age of 16 — then the applicant is taken to have received it immediately.

If correspondence is sent to an applicant (or agent) by electronic transmission (that is, fax or email), then the applicant is taken to have received it on the same day on which the transmission is sent. On form 956 Authorisation of person to act and receive communication (and on most other visa application forms), there is a question asking whether the applicant or the agent consents to receiving correspondence by fax or email. To avoid the situation where the agent is away, particularly where an agent operates as a sole practitioner working from home, and correspondence is sent by electronic transmission, leaving the agent unprepared to handle any time-constrained action (for example, providing further documentation within the stipulated time limit or lodging a review application), it is recommended that agents should tick ‘no’ to this question, or ‘yes’ to agree to receive all correspondence, except for the final notification of decision, by electronic means.

Defective communication from the Minister 2.68 Section 494C(7) stipulates that if the Minister purports to send a document to a person but makes an error in doing so, but the person nonetheless receives it, then the time when the person is taken to have received it will be regarded as the time of receipt by the person as if the Minister had not made the error, unless the person can show that he or she has in fact received it at the later time, when the person will be taken to have received the document at that later time. Therefore, should such circumstances arise, it would be prudent to obtain some form of evidence (for example, from the courier or the postal service) as proof that the article was in fact delivered and received at that later time. In Bui v Minister for Immigration [2015] FCCA 1931, the visa applicant had appointed a registered migration agent to receive correspondence for her. The agent had provided DIBP with his email address, which was subsequently altered. The agent sent an email to the Department advising of his new email address, but it would appear the Department had no record of having received this, and the refusal letter was sent to the agent’s defunct email address. By the time an appeal was lodged with the Tribunal, the time limit had well passed, and the Tribunal advised the applicant that it had no jurisdiction in her case. A subsequent appeal to the Federal Circuit Court was, however, successful in quashing the Tribunal’s determination. Other sections of the Migration Act separately set out provisions in cases of defective communications from the AAT (ss 379C(7) and 441C(7)), and the IAA (s 473HD(7)). However, there do not appear to be any separate provisions in the Migration Act for defective communications from MARA.

[page 119]

Notifying decision on a visa application 2.69 Notification of decisions is described in the Migration Act Pt 2 Div 3 Subdiv AC Grant of visas. Once an application has been lodged and assessed as being valid, there can only be two outcomes — approval or refusal — unless of course the applicant withdraws or dies before the application is decided. Section 65 of the Migration Act provides that where all criteria have been met, then subject to any other provisions which may be appropriate (for example, visa grant prevented by visa capping or the application placed in a ‘pool’), the Minister must grant the visa. On the other hand, if some criteria cannot be met, then the application must be refused. And when a decision is made either to approve or refuse, the applicant has to be notified in a way prescribed. This is particularly important for refusals, as it may impinge on the applicant’s eligibility for review.

Approvals (visa grant) 2.70 Notifications of approval or visa grant can be effected in any one of three ways: • • •

by an approval letter (most usual method); by evidence of visa grant (a visa label placed in the passport, or instrument in writing); or orally (for electronic travel authorities and some bridging and tourist visas where no evidence is required).

Refusals — general

2.71 The Regulations also prescribe the means by which an applicant is to be notified of a decision, that is, by posting the notice to the applicant’s address or last known address or the nominated agent, or by handing it to the applicant or agent in person. And if there is more than one person applying together in the same application, only one of the persons needs to be notified. Section 66(2) lists the four pieces of information which are to be included in refusal letters: • • • •

the criteria not satisfied; the part of the Act or Regulations which prevented the grant of a visa; reasons why they are not satisfied (except for ‘non-disclosable information’); and review rights, if any, and time limit and venue for lodgment of appeal (that is, AAT).

However, these requirements do not apply if the decision relates to a visa ‘that cannot be granted while the applicant is in the migration zone’ and there are no avenues of review (for example, independent migration visas or offshore [page 120] student visas). Also note, a failure by the Minister to notify the applicant does not affect the validity of the decision. In other words, the decision stands even if the Minister has not sent out the notice.

Refusals — character grounds 2.72 Notification of refusal or cancellation of visas on character grounds is covered in s 501G, which states that the Minister must advise the person concerned of four pieces of information:

• • • •

the decision itself (whether it is a refusal or visa cancellation); the legislative provision under which the decision was made; reasons for the decision (except for ‘non-disclosable information’); and review rights, if any, and time limit and venue for lodgment of appeal (AAT only).

Note again that a failure by the Minister to notify the applicant does not affect the validity of the decision.

Final determination of an application 2.73 The outcome of an application determined by the Department is either visa grant or refusal. However, that is not ‘final determination’ of the application. The Act, at s 5(9), says that an application is ‘finally determined’ only when the merits review process is exhausted or if the applicant has not lodged a merits review application within the prescribed period. This, however, does not extend to judicial review. One final reminder about ‘final determination’ is that once a primary decision is taken by the Department to refuse a visa to an applicant inside Australia, then s 48 of the Act comes into effect immediately if the person no longer holds a substantive visa, thereby affecting the person’s eligibility to apply for other substantive visas. This is so even if the person has sought merits review and the review process has not been finalised.

[page 121]

Chapter 3

Scenario Discussion Questions Summary 3.1 These scenario questions have been classified into four groups aligned to the four subjects of the Graduate Certificate in Australian Migration Law and Practice, the prescribed course for migration agents at the time of printing. The four subjects are: 1. 2. 3. 4.

Subject A — Australian migration law Subject B — Australia’s visa system Subject C — Visa compliance, cancellation and review Subject D — Applied migration law and practice

While we note that the Graduate Diploma is being introduced in 2018 and the subjects will no longer be consistent across the prescribed institutions, the current format will still assist students to develop their knowledge through scenario questions that are categorised topically. Table 3.1: Subject A — Australian migration law: 25 questions Question Title number A1 Definition of terms A2 Johnny Begood

Theme Definition of terms General visa concepts

A3

Johnny El-Kreiky

A4

Virginia Woolf

A5

Jason, new registered migration agent

General application procedure General lodgment and bridging visas Code of Conduct

[page 122] Table 3.1: Subject A — Australian migration law: 25 questions — cont’d Question number A6 Bilbar A7 A8 A9 A10

Title

Unregistered agent Registered migration agent pitfalls Barry Barker

A12

TrueBlue Visas and Pronto Visas Registered migration agent Chris

A13

Scarlett O’Hara

A14 A15 A16

Simon White Amanda Yonkers Pierre Le Bon

A11

Theme General concepts and Code of Conduct Unregistered practice Code of Conduct Ethics and ethical conduct Ethics and ethical conduct Ethics and ethical conduct Ethics and ethical conduct Resident return visa and validity of visa applications Citizenship issues Citizenship issues Citizenship issues

A17 A18 A19 A20 A21 A22

John Doh Ivy Nguyen Ricardo Taco June and Jackie Chan Maria and Gary Callas Helen and John

A23 A24 A25

Bill and Kylie Karen Michelle Paddington

Citizenship issues Citizenship issues Citizenship issues Citizenship issues Citizenship issues Citizenship and partner visa issues Citizenship issues Citizenship issues Citizenship issues [page 123]

Table 3.2: Subject B — Australia’s visa system: 30 questions Question Title number B1 Maria and Peter B2 Mary and John B3 Liz and Phil B4

Martha and Wayne

B5

Harry and Hermione

B6

John Lawless

B7

Fox Mulder

B8

Cedric Chaudry

B9

Ludwig Von

Theme Partner visas Parent visas Parent visas, balance of family Parent and retirement visas Family visas and assurance of support Permanent employment visas Temporary and/or permanent employment visas Temporary employment visas Employment, health

B10 B11

Westland Constructions Marj d’Barge

B12

Paddy and Cathy

B13 B14 B15 B16 B17 B18

Peter Pan Eugene Ivanoff Jonathan Swift Nathan Yahoo Pauline Smith Paul Inenn’söhn

B19 B20

Joanne Field Ruchitta Riches and Speedy Gonzales Johnny Will

B21

requirements Sponsor obligations General skilled migration, Job Ready Program and Offshore Skills Assessment Program Skilled visas and points test Work and skilled visas General skilled migration ETA and business talent Business skills visas Business skills visas Business skills visas and dependent child Student and dependants Student and work rights Refugee status [page 124]

Table 3.2: Subject B — Australia’s visa system: 30 questions — cont’d Question number B22 B23 B24 B25

Title Mary Kaur Anya Kornikov Karim Sepehr Ali Hasan

Theme Protection visas Protection visas Refugee status Visitor, medical treatment visas and

B26 B27 B28 B29 B30

Yessir Ararat Delia Llama Nelson Mondoza Joh Bielkesen Grace Whitelaw

work Bridging visas Bridging visas Bridging visas Resident return visas New Zealand citizens

Table 3.3: Subject C — Visa compliance, cancellation and review: 11 questions Question Title C1 Dulbar Singh C2 Ngo Dinh Nhu C3

David Higson

C4

Freddy Kruger

C5

Harriet Harilela

C6 C7

Fu Man Chu Placido Flamingo

C8

Win Shum and Lu Shum

C9 C10

Paul Domingo Sergio Mendese

C11

Lin Tung Hoa

Theme General visa cancellation Visa cancellation on incorrect information Cancellation and freedom of information Visa cancellation, s 501 and review Student visa and student visa cancellation Compliance mix Unlawfuls and exclusion periods Detention and residence determinations Merits review Refugee, compliance, AAT Refugee and review [page 125]

Table 3.4: Subject D — Applied migration law and practice:

17 questions Question Title number D1 Abdullah Bin Aladdin D2

Arriveda Ciroma

D3

Brigitte La Deux

D4

Forrest Gumpf

D5

Manuel La Pagayo

D6 D7 D8

Brittney Pears Mr Perez Ms Winslow

D9

Jane Marple

D10 D11 D12 D13 D14

Fees Fees Ms Xu File practice management Nguyen

D15 D16

Sharni Kaur Ronaldo Esposito

D17

Ernest Hemingwood

Theme Protection visas and family reunion Partner visas and family violence issues Complex case and ethical issues Family migration and assurance of support Complex case and merits review 8503 waiver submission Client communication Migration practice management Migration practice management

Fees

File practice management Priority processing, AAT Sponsorship and Sch 3 issues Partner visas, Sch 3 issues and compelling reasons

[page 126]

Subject A: Australian migration law Question A1: Definition of terms 3.2 In what parts of the Acts and/or Regulations would you find the following defined terms or an interpretation of them? a. b. c. d. e. f. g. h. i. j. k. l. m. n. o. p. q. r. s. t.

Commonwealth country Close relative Compelling need to work Balance of family test Orphan relative Dependent Unauthorised maritime arrival Aged parent Immigration clearance Working day Attendance notice Spouse Main business Protection visa Refugee Work Vocational English Functional English Prescribed qualifications Prescribed institution

u. v. w. x. y. z.

Migrating employee Non-disclosable information High visa refusal rate Eligible non-citizen Complying investment Crime

Question A2: Johnny Begood — General visa concepts 3.3 Johnny Begood is a British citizen who came to Australia on a visitor (Class FA, subclass 600) visa in the tourist stream. Just before his visa was about to expire, he rang the Department of Immigration and Border Protection (DIBP) in [page 127] Brisbane to say he was currently backpacking in Mount Isa, and he was requesting that he be given an extension of four months. He then quoted his Visa card number over the phone. a. b.

Was Johnny’s visitor visa application a valid application? If Johnny did not hold a valid visitor visa at the time of application would the application be valid?

Question A3: Johnny El-Kreiky — General application procedure 3.4 Johnny El-Kreiky arrived two weeks ago from Lebanon on a visitor (Class FA, subclass 600) visa, which has an ‘8503 no further stay’ condition. His visa was valid for three months from the date of arrival. Johnny immediately applied for a protection visa upon his

arrival in Australia. In his application he did not include his address, as his migration agent had advised him that it would be more convenient to use her office address for correspondence purposes. Two days ago a letter from DIBP arrived at his migration agent’s address informing Johnny that his application was invalid. Johnny has also just fallen madly in love with an Australian citizen named Sheila and they plan to get married in 30 days. What are Johnny’s options, assuming he holds a valid visitor visa? Do not assess the merits of the case. Examine the question from a validity perspective only.

Question A4: Virginia Woolf — General lodgment and bridging visas 3.5 Virginia Woolf is a tourist in Australia whose visa is expiring today, which is Friday. At 3.55 pm, just before DIBP closes its doors to the public, Virginia comes to the Department to apply for an extension of her visitor (Class FA, subclass 600) visa. She hastily completes a form 601 and takes it to the counter. She tries to use her credit card to pay the application fee, but it is rejected as she has overspent her credit limit. She does not have any other money with her. a. b.

c.

Is Virginia’s application for the visitor (Class FA, subclass 600) visa a valid application? Why? Is she eligible for a bridging visa? If yes, what bridging visa is Virginia eligible for? What work conditions would she have on that bridging visa? Is there anything Virginia must do after being granted this bridging visa?

Question A5: Jason, new registered migration agent — Code of Conduct

3.6 Jason is a migration agent with ABC Migration Services. His employer has requested Jason to draft an advertisement for a local newspaper to promote their [page 128] migration services in the Eastern Progress Press. Jason drafted the advertisement as follows: Best Migration Agent in the world: Jason Flintstone, Australian Government Approved Specialist Agent. All applications guaranteed. We have a very close relationship with the Department of Immigration. Call: 1390 390 000.

Discuss the acceptability of this marketing approach and any potential breaches of the Code of Conduct.

Question A6: Bilbar — General concepts and Code of Conduct 3.7 Bilbar is a new migration agent. He has never lodged an application for a client previously. He lodges an application for a client on partner grounds (subclasses 820/801) in Australia using the correct form but with the incorrect fee. The husband is an Australian citizen and the wife is a citizen of Russia. She is currently in Australia and previously held a tourist visa, which has long expired. It was discovered that her tourist visa had condition 8503 attached to it but she managed to obtain a waiver of the condition. The officer at DIBP did not discover the mistake and accepted payment of $200 less than the proper fee. It has now been two years since the application was lodged and since then the applicant has had a child with an Australian citizen. a. b.

Advise Bilbar of his client’s options, if any. Are there any consequences under the Code of Conduct for the migration agent?

Question A7: Unregistered agent — Unregistered practice 3.8 Imagine you are just an ordinary citizen who is not a registered migration agent, a member of Parliament, a lawyer or an official of any capacity. a.

What breaches of the Migration Act, Migration Regulations and/or Migration Agents Regulations would you commit, and what potential penalties could you incur, if you did the following actions: i. Advertised in the Sydney Morning Herald stating that you are able to give assistance to people wishing to obtain permanent residence in Australia? ii. Charged a client in Melbourne a nominal fee (of say $100) for an initial consultation on an immigration matter? iii. Worked for someone in Perth, who is not a registered migration agent, but who had given immigration assistance to a client; and your employer asked you to send an invoice to the client? iv. Told a prospective client that you are a migration agent registered with the Migration Agents Registration Authority (MARA)? [page 129] v.

b.

Ran an office exclusively for your operations in India and advertised in the Bombay Bloomers Daily that you (a citizen and permanent resident of India only) can help people interested in studying in Australia with their visa applications? If you were to subsequently receive an ‘infringement notice’

from DIBP, what must you do, and what are the consequences if you do not comply?

Question A8: Registered migration agent pitfalls — Code of Conduct 3.9 You have now received your migration agent registration and you start advertising in newspapers that you are a registered migration agent. What breaches of the Migration Act, Migration Regulations and Migration Agents Regulations would you have committed, and what are the penalties, if you: a. b.

c.

d.

e. f.

g.

Are convicted of an offence under a law of Australia but continue to practise as an agent without notifying MARA? Collect a fee from a client for giving immigration assistance without giving the client a statement of services within 28 days of the finalisation of the case? Practise as a registered migration agent in the commercial sector without any professional indemnity insurance? What is the appropriate professional indemnity insurance (if required)? Tell a client that you are playing golf with a friend who works in Immigration over the weekend and, if the client was amenable to giving you something substantial towards the green fee, you can get your friend to make a quick and favourable decision on his application? Arrange a marriage of convenience for a client to gain him permanent residence? Include the phrase ‘Australian Government Department of Immigration registered migration agent, 100% success guarantee’ in a newspaper advertisement? Tell a client that although their visa application had no hope of success they should still lodge it and, who knows, the case officer may be in a good mood and approve the application?

h.

i.

j. k.

l.

Gossip about the private life of a famous international movie star, who has appointed you to help them apply for migration to Australia based on a same sex relationship with an Australian citizen, but where that actor’s sexual preferences are not known to the public? Keep one single bank account and deposit all monies paid by your clients into this account, whether or not the work has been completed? Do not respond when MARA asks for a copy of a client’s file? Maintain a website as a migration agent (where you state what a great migration agent you are) but where you do not provide any link to the Code of Conduct on the MARA website? Enter into a business partnership with a client, and then use that business partnership as a basis for your client to apply for business migration? [page 130]

m. Submit 10 protection visa applications for your clients within six months, of which nine are rejected? n. Die while still a registered migration agent and your personal legal representative refuses to hand over your clients’ files to MARA when asked to do so?

Question A9: Barry Barker — Ethics and ethical conduct 3.10 Barry Barker is working in a migration practice as a clerk. He completed his Graduate Certificate in Australian Migration Law and Practice recently and has just filled in his forms for registration and sent them to MARA.

During lunch time all the migration agents are off at lunch and he has been left in the office. The phone rings and Barry answers. The caller says, ‘Hello this is John, you are helping with my wife, Cynthia’s, application in relation to a partner visa — it has been a while since we sent in the application to Immigration, can you tell me what is happening?’ Barry checks the file and sees that there is a letter on the file from DIBP that raises concerns about some documents submitted by John’s wife, claiming that they are forgeries, and asking her to submit the originals. Barry reads the letter to John. John is worried and asks Barry what he should do. Barry tells him not to worry, he does not need to send in the originals, that copies will do. John still expresses concern. Barry tells him he knows what he is talking about as he is very familiar with the requirements under migration law. John is relieved and tells Barry he will tell Cynthia to send in copies. Barry says he will speak to one of the other migration agents in the firm and he will ring John back if there are any problems. a.

b.

Consider whether Barry has breached any provisions of the Migration Act 1958 or the Migration Agents Regulations 1998. If so, what are the possible consequences for Barry?

Question A10: Trueblue Visas and Pronto Visas — Ethics and ethical conduct 3.11 Selene has just set up her business, Pronto Visas. She is a sole trader and has hired a clerical assistant, Terry. Her first client has contacted the office seeking assistance. Terry tells Selene about the client, Claudette. Claudette has been trying to help her brother Pierre come to Australia. Pierre sought advice from an agent, Shifty, who ran a business called Trueblue Visas, in Marseille, France. Shifty

charged Pierre €5000 to fill in the forms for a visa to come to Australia as a remaining relative. When Pierre was interviewed by DIBP officers in Paris, they discovered he had another brother in Canada. As a result Pierre did not fit the definition of remaining relative and the application was rejected. Claudette says [page 131] that Pierre had told Shifty he had a Canadian brother. Terry had told Claudette that Shifty obviously did not know how to give proper immigration advice. When Claudette said how much money Pierre had, Terry had remarked that Pierre would have a good chance of coming to Australia on a business migration visa. Claudette now wants to come in for an appointment to discuss Pierre’s options and to discuss on what basis she could make a complaint about Shifty. Consider what provisions of the Migration Act 1958 and the Migration Agents Regulations 1998 have been breached by each of Shifty, Terry and Selene, and what the possible consequences are. You are not required to advise on Pierre’s visa options.

Question A11: Registered migration agent — Ethics and ethical conduct 3.12 a.

b.

Advise on the following questions. What must a registered migration agent do when asked by a client to give his or her opinion about the probability of a successful outcome for the client’s application? Does an agent need to adhere to other laws beyond the Migration Agents Code of Conduct?

Question A12: Chris — Ethics and ethical conduct

3.13 Chris set up an exciting new partnership to practise in migration law. Initially business went well. The impact of the economic downturn and a new cohort of migration agents also trying to attract business have led to a decline in the number of cases Chris has received over the last six months. Chris’s partner starts to wonder about whether or not he can meet the rental payments. The finance company Xanda is about to repossess Chris’s car. Chris receives an email from a previous client who explains he would like to refer a friend who has a network of businesses throughout China. Delighted at the prospect of new work and fending off the landlord and creditors Chris responds. The new potential client contacts Chris by phone. It is obvious that he is a very successful businessman and quite wealthy. Some quick research indicates that the client would probably qualify for the business talent visa and he asks Chris what it will cost, suggesting that money is no object as his only desire is to gain permanent residence. Chris has discovered the client had been unsuccessful in a previous skilled visa application. Normally Chris’s professional fee for this kind of visa is $8500 plus disbursements. From information Chris has gained speaking to colleagues he believes that the ‘industry [page 132] average’ for a business talent visa is from $8000 to $12,000. Chris knows that this client would pay $25,000. a. b. c.

What ethical issues does this raise? What should Chris do? What are the implications and possible consequences of charging much higher than his ‘normal’ fee?

d.

Who are the stakeholders in relation to fee setting?

Question A13: Scarlett O’Hara — Resident return visa and validity of visa applications 3.14 Scarlett O’Hara has dual British and Irish nationality, as well as being an Australian permanent resident. She has in her Irish passport an Australian resident return visa, which is due to expire next week. It is now 4 pm on a Friday, and Scarlett comes to you to say she is on her way to the airport as she has to go on an urgent business trip. She will be travelling in Europe for a month. She asks you to get an extension of her resident return visa from DIBP in her Irish passport, and courier it to her London address by DHL. In the meantime she will use her British passport for her travels. You get Scarlett to complete and sign the form and to write a cheque for the application fee. You tell her that you will lodge the application with Immigration first thing Monday morning as the Department is now closed for the day. a. b.

Are you correct in your handling of Scarlett’s application in this way? Why? Under the circumstances, what would have been Scarlett’s best option?

Question A14: Simon White — Citizenship issues 3.15 Simon is a past client whom you assisted with his application for permanent residence in Australia. His subclass 186 visa application was lodged in July 2015 but was not finally granted until 12 July 2016. Simon is a citizen of the UK who lived and studied in Australia from January 2010 to December 2012 on a student visa. He returned to the UK after finishing his studies but was granted a subclass 457

visa in June 2013. He arrived in Australia on 25 June 2013 and has not left since that date. He is planning to go back to the UK for Christmas 2017. a.

b.

c.

Simon is very keen to acquire Australian citizenship and comes in on 16 July 2017 to ask you when he might be eligible. What do you tell him? Can the time he spent in Australia between January 2010 and December 2012 on a student visa count towards his residence requirement for Australian citizenship? What if he wanted to return to the UK in December 2017 and stay there until at least July 2018? [page 133]

Question A15: Amanda Yonkers — Citizenship issues 3.16 Amanda is 44 years old and was born in Japan. Her mother was born in Melbourne and her father was an American serviceman. Amanda’s family moved to Melbourne when she was four years old and Amanda lived in Australia until the age of 16. The family then moved to the United States, where Amanda currently still lives. Amanda shows you her identity document from her time in Australia and states that she was never registered as an Australian citizen. Her mother, however, had an Australian passport until she died and never took out American citizenship. Being an only child and now divorced, Amanda’s closest relatives (aunts, uncles and cousins) live in Australia. She desperately wants to move to Australia and live here and asks you about her options. a. b.

What are Amanda’s options? What type of citizenship application would you recommend

to Amanda?

Question A16: Pierre Le Bon — Citizenship issues 3.17 Pierre married Australian citizen Susan in May 2014 while Susan was posted to the Australian Embassy in Paris. Susan and Pierre met while Pierre was in Australia on a working holiday visa from January 2013 to January 2014. Susan and Pierre moved back to Australia in July 2014 when Pierre was granted a partner (provisional) (subclass 309) visa. Pierre was then granted permanent residence on 2 July 2016, just before Susan was once again posted overseas. They rented out the house they had just purchased in Canberra and Pierre was granted leave without pay from his exciting job with Centrelink (but as he worked in the assurance of support section, he had been advised that they were downsizing). During a visit back to Australia in January 2017, Susan and Pierre come to you to ask about the possibility of Pierre being granted Australian citizenship. a. b.

What advice do you give? What if Pierre had become a permanent resident on 30 June 2007 instead of 2 July 2016?

Question A17: John Doh — Citizenship issues 3.18 John is a citizen of the UK and is single. He first arrived in Australia on 1 July 2009 on a subclass 572 visa to study for an Advanced Diploma of Business Management at TAFE. John then planned to study a Bachelor of Accounting at Macquarie University. John’s subclass 572 visa expired on 2 July 2011 but John overlooked this and he did not apply for a subclass 573 visa until 6 July 2011. John was granted a subclass 573 visa on 1 August 2011 after satisfying criteria in Sch 3 cl 3005 to the Migration Regulations

[page 134] in relation to applicants for subclass 573 visas who did not hold substantive visas at the time of application. The subclass 573 visa was valid until 15 March 2014. John completed the Bachelor of Accounting degree at Macquarie University on 2 February 2014 and applied for a subclass 485 visa on 7 February 2014. John was granted a subclass 485 visa on 4 July 2014 and a subclass 887 visa on 1 July 2016. Between 4 July 2014 and 1 July 2016 John spent a total of six weeks outside Australia. a. b.

What type of citizenship application could John apply for? What section of the Act sets out the residence requirements? When will John be eligible to apply for Australian citizenship, assuming he does not leave Australia until he makes an application for Australian citizenship?

Question A18: Ivy Nguyen — Citizenship issues 3.19 Ivy is a 17-year-old citizen of Vietnam who was granted a child (subclass 101) visa on 2 July 2015 and arrived in Australia on 10 July 2015. Ivy is profoundly deaf and was granted the subclass 101 visa after the Administrative Appeals Tribunal set aside a decision by DIBP to refuse her a visa and granted a health waiver under cl 4007 in Sch 4 to the Migration Regulations. When Ivy applies for Australian citizenship: a. b. c.

Which English language requirement will she need to satisfy? Which ‘knowledge and understanding’ requirement will she need to satisfy? Is Ivy eligible to apply for citizenship now?

Question A19: Ricardo Taco — Citizenship issues

3.20 Ricardo is a citizen of Mexico who was granted a partner (subclass 801) permanent visa on 2 July 2015 sponsored by his partner George who is an Australian citizen. Ricardo has lived in Australia since 15 January 2010 on a subclass 457 visa and later on a partner (temporary) (subclass 820) visa and has always held a substantive visa while living in Australia. Ricardo and George continue to live in a de facto relationship. George has accepted a two-year contract to work as an Electronics Engineer in London and left for London with Ricardo on 2 August 2015, returning to Australia in August 2017. Advise Ricardo about when he can apply for Australian citizenship and particular issues relevant to his situation.

Question A20: June and Jackie Chan — Citizenship issues 3.21 June Chan is a citizen of Korea. Her husband Jackie Chan is a citizen of Australia. They married five years ago and they have been living in Australia since then. June obtained her permanent residence of Australia one month ago. [page 135] Her husband was originally from Hong Kong. As he is a famous actor and businessman, he travels overseas a considerable amount and spends hardly any time at all in Australia, although he does have a production house at Southbank in Brisbane where he employs five full-time staff. His travel overseas is unrelated to the production house in Brisbane. He wants June to travel with him as he is always depressed when she is not around. June is more interested in obtaining her Australian citizenship first as she believes it would be

much easier to travel the world with an Australian passport. She seeks your opinion in relation to the residential requirements and citizenship test requirements. a. b.

What residence and other requirements does June need to satisfy to gain citizenship? Does she need to pass a citizenship test?

Question A21: Maria and Gary Callas — Citizenship issues 3.22 Maria is a citizen of Australia who, while on holiday in the US, married a US citizen named Gary Callas. She fell pregnant in the US and in order to save money (as medical expenses are horrific in the US) Maria pretended to be another person, Margie Simpson, a friend of her husband, who is a US citizen, as she could then obtain free medical benefits. Her child, Jamilla, was born in the US but the birth certificate had the mother listed as Margie Simpson. Maria is now in Australia with Jamilla. Jamilla entered on an Electronic Travel Authority (ETA) on a US passport. a. b. c.

Advise Maria about Jamilla’s status and her eligibility to Australian citizenship. If Jamilla’s application for Australian citizenship is refused, can an appeal be lodged on her behalf? If her ETA has ceased, would she be eligible for any sort of visa pending the outcome of her review application?

Question A22: Helen and John — Citizenship and partner visa issues 3.23

In 2000 Helen (an Australian citizen) divorced her Australian

husband Ned. In search of a new life, she left her two children in Australia and went to New York where she met John, a US citizen, and they married in July 2001. She subsequently took up US citizenship in March 2002. Helen and John have been living in New York all this time, but John now wants to come to Australia and settle here permanently. John consults you about Helen’s situation and whether he can obtain his permanent residence. John (not being a faithful person) was discovered to be having an intimate relationship with another lady friend Lily, whom he had met [page 136] at a bar. Lily had recently told John she is pregnant with his child, and that had prompted John’s sudden desire to move to Australia as quickly as possible. a.

b.

Would this discovery have any impact on John’s application for a partner visa if he were to rely on a sponsorship from Helen? Does the fact that Lily is pregnant with John’s child make the situation worse?

Question A23: Bill and Kylie — Citizenship issues 3.24 Bill and Kylie arrived in Perth from China 15 years ago. They are both citizens of China. They applied for a protection visa 14 years ago and it was refused by DIBP as well as the then Refugee Review Tribunal. As they were afraid to return to China they have subsequently been working in a Chinese restaurant illegally. They have never left Australia. They have one child aged 11 years, who was born in Australia.

What options are available for their child?

Question A24: Karen — Citizenship issues 3.25 Karen was born in Perth 10 years ago and has remained in Australia ever since. Her mother is from Malaysia and her father is from Indonesia. Her parents were not married when she was born; they were both in Australia on student visas. Her mother left her partner and Karen shortly after the birth and is now in a relationship with an Australian man. Her mother successfully remained in Australia on a partner visa and has now been granted Australian citizenship. She has not seen Karen since she was a baby and will have nothing to do with her. Karen’s father, who has been looking after Karen since her mother abandoned them, has become ill and homesick, and wishes to return to Indonesia, but Karen doesn’t want to go with him as she has never known Indonesia and has only heard bad things about the country what with the Bali bombing and the Bali Nine and Schapelle Corby drug stories. He seeks your advice about whether or not Karen is eligible to apply for Australian citizenship. Karen loves Australia; she has gone to school here, has lots of friends and he boasts ‘can kick a soccer ball and bend it like Beckham’. Write a file note setting out what advice should be given to Karen’s father about Karen’s citizenship options.

Question A25: Michelle Paddington — Citizenship issues 3.26 Michelle Paddington was born on 8 December 1991 in the UK and is a UK citizen. Her parents were both citizens of the UK. She is and has been for many years a first class wicket-keeper and batswoman. She first visited Australia in March 2011 and has since

gradually developed her sporting and business links in [page 137] Australia. She operates a girls’ cricket clothing company, Paddo, with stores in all states of Australia. She has also been involved in setting up the Dinky Cricketters, an organisation that promotes young girls playing cricket. On Saturdays across Australia tens of thousands of little girls wearing Paddo uniforms are hitting and catching balls in the Dinky Cricketters competition. In addition to basing her business affairs in Australia, Michelle has formed a close relationship with Suellen Paul, one of Australia’s premier women fast bowlers. Suellen is an Australian citizen. She and Michelle met when Michelle came to Australia in March 2011 and they have been together since April 2011 and have leased a house together in Subiaco. They have set up a practice area in the back yard. Michelle has a design studio for her cricket wear on the top floor of their house. Michelle has retained her house in the UK. She has travelled frequently on cricket tours for the England cricket team between Australia, India and New Zealand. She has rarely remained in Australia for more than two months at a time. Between 2011 and 2014 Michelle held a number of temporary business visas which had enabled her to come to Australia and leave on multiple occasions. Australia has long needed a new wicket-keeper in their women’s cricket team. Michelle’s profile with young Australian girls has also led selectors to view her as an ideal member of the team. They have their eye on Michelle representing Australia at the Women’s World Cricket Cup to be held in New South Wales and the ACT in a few months. They feel with Michelle in the team they are sure to win the competition. Michelle is excited about joining the team, long having felt Australia was her true home.

If Michelle were to become the Australian wicket-keeper, she would earn a salary (although poor by comparison to the male Australian team). A more exciting prospect is the increased advertising profile that Paddo cricket clothing would acquire. She has had interest from businesspeople who will put significant investment into the company such that she could expand into women’s and men’s cricket clothing. The Australian cricket team have said that they can only take Michelle into the team if she is an Australian citizen. Michelle applied for and was granted permanent residence in October 2014. She wants to apply for Australian citizenship immediately and is seeking your advice. Write a memo explaining the requirements for making a citizenship application under the Australian Citizenship Act 2007 and consider whether Michelle can apply for citizenship. [page 138]

Subject B: Australia’s visa system Question B1: Maria and Peter — Partner visas 3.27 Maria is a citizen of the Philippines. Her husband, the father of her three children, aged five, seven and nine, died four years ago. Maria met Peter, an Australian citizen, two years ago when he was holidaying in Manila. Since then they have telephoned and emailed each other regularly. Peter sent Maria an airline ticket to visit him in Australia and she arrived last month on a tourist visa. Peter surprised

Maria at the airport with an engagement ring. She loves Peter and wants to start a life with him. Maria’s visa expires in six weeks. A friend has told her that even if she doesn’t marry Peter, she can still get a visa as his de facto spouse. She seeks your advice as to whether she can stay in Australia, and if so, whether her children will be allowed to join her. What further information do you need and what advice do you give?

Question B2: Mary and John — Parent visas 3.28 Mary and John are a retired couple visiting from England on eVisitor (subclass 651) visas. Their visas are not subject to the 8503 condition. Mary and John are both aged 68 and have four children: two live in England and the other two are Australian permanent residents who have resided in Australia for over 10 years. a. b. c.

d. e.

f.

g. h.

What advice would you give about their eligibility for a parent category visa if they do not wish to return to England? Do Mary and John have to lodge separate applications? What application fees apply? Does an assurance of support have to be provided? If so, where does it have to be lodged and does the assurer need to be the actual sponsor? Where will the applications have to be lodged? What is the difference between aged parents and working age parents? Do they qualify as aged parents? Does it make any difference if John is 68 but Mary is only 60? What legal obstacles could there be to Mary’s and John’s application for an aged parent visa, even if they meet the criteria for the visa? Would it change your advice if their two children residing in Australia were New Zealand citizens? Would the evidentiary requirements relating to their children

in Australia be any different as New Zealand citizens than they would be if they were Australian citizens or permanent residents? [page 139]

Question B3: Liz and Phil — Parent visas, balance of family 3.29 You are approached by Liz, aged 65, who has come to Australia with her 68-year-old husband, Phil, on tourist visas (which are due to expire next month). Liz tells you she has four children. Her eldest son, Charlie, was granted permanent residence and has been living in Australia for two years and is working as a polo instructor at the Geebung Polo Club. A daughter, Suzanne, who is married to an Australian, has just been granted a 309 visa and arrived last month to join her husband. Liz tells you she and Phil do not want to go back to the UK, even though they have two sons still living there. a.

b.

Do Liz and Phil meet the balance of family test if they want to apply to stay in Australia as aged parents of Charlie and Suzanne? What is the definition of ‘settled’ in relation to an Australian citizen or permanent resident? Can Charlie and Suzanne be considered as ‘settled’?

Question B4: Martha and Wayne — Parent and retirement visas 3.30 Alfie Pressley migrated to Australia under general skilled migration some three years ago, and lives in Melbourne. He is a computer programmer, but due to the downturn in the IT industry, was laid off at work last month and is presently unemployed. Alfie

has no living siblings and his father passed away about three years ago. His mother Martha, now aged 50, remarried last year to Wayne, aged 55, who has two married daughters. One lives in Oxford and the other, Anne, lives in Australia on a subclass 309 visa and is not yet an Australian permanent resident. Martha and Wayne live in Edinburgh where Wayne has run a successful real estate agency. Martha and Wayne have £280,000 (assume exchange rate £1 = AU$2) in joint savings which is readily transferable to Australia, plus some other non-moveable investments in the UK which yield a combined retirement income of £25,000 per year. At her wedding last year, Martha suggested to Alfie that she and Wayne may like to settle down and retire in Australia so that they can be close to him. Alfie told her that he would look into it. a.

b.

Do Martha and Wayne qualify for a visa to retire in Melbourne? What are the requirements concerning availability of funds for the relevant retirement visa? If they do not qualify for the retirement visa, would they have any other option? Alternatively would they qualify for the parent visa? Why?

Last week, Martha rang Alfie to tell him that one of Wayne’s daughters (the one living in Oxford) had died following a rockclimbing accident. [page 140] c.

Do Martha and Wayne qualify for the parent visa now? Are they likely to encounter any delays if they apply? What would be their best option under the circumstances?

Martha and Wayne decide to apply for a contributory parent (subclass 143) visa with a sponsorship by Alfie, but are told that they need an assurance of support. Alfie is still unemployed and cannot act

as assurer. However, his next door neighbours, Thelma and Louise, who are both nurses at the Royal Children’s Hospital, say they would be prepared to help. d. e. f.

How many assurances of support would be required? How long would be the period of assurance? Where must Martha and Wayne lodge their application for the contributory parent visa? What are the bond and health charges applicable to Martha and Wayne for the contributory parent visa?

Question B5: Harry and Hermione — Family visas and assurance of support 3.31 Harry, aged 16, is on a student visa in Melbourne and living with his uncle Hagrid, who is an Australian citizen. His uncle receives a call from Hogwart (an overseas country) one day notifying him that Harry’s parents have been killed in a plane crash while attempting to take off during a severe thunderstorm. Harry’s sister Hermione, aged 12, survived the crash, and is recovering at Hogwart General Hospital. Hagrid wants to sponsor Harry and Hermione to come to live with him in Australia permanently. a. b.

What class/es and subclass/es of visa/s can Harry and Hermione apply for? Would they need to pay two separate visa application charges?

Question B6: John Lawless — Permanent employment visas 3.32 Radio Station 6EX in Esperance (WA) is in desperate need of a radio communications technician after the person who previously filled this job left to pursue his career in a big city. They have tried for

a number of months to fill the job locally but to no avail. John Lawless completed a three-year Diploma in Telecommunications Engineering at the Quebec Institute of Engineering two and a half years ago, and has worked for the Canadian Broadcasting Corporation as a radio communications technician since graduation. John saw the advertisement for 6EX on the Internet and decided to apply. He has told 6EX that he is aged 24, single, and very interested in migrating to Australia. a.

Does John Lawless qualify for an employer nomination scheme (subclass 186) visa? [page 141]

b.

c.

If 6EX wants to sponsor John under the regional sponsored migration scheme (subclass 187) visa, does it need to advertise the position or demonstrate a commitment towards training Australians? Does 6EX need to obtain an endorsement from an external authority for the sponsorship? If so, whom?

Question B7: Fox Mulder — Temporary and/or permanent employment visas 3.33 Fox Mulder is in Australia on an ETA (subclass 601) from the US. He comes to you as he wants to apply for permanent residence. He has a PhD in Space Science and is a renowned expert in the study of extraterrestrial life forms. He tells you that the Australian Aeronautical Research Space Station (AARSS) in Pine Gap (NT) has expressed a strong interest in appointing him to a three-year position as its chief aeronautical engineer and told him they would be prepared to sponsor him for a 457 visa.

a. b. c. d.

e.

Do aeronautical engineers qualify for a 457 visa? What is the ANZSCO code for aeronautical engineers? What type of sponsorship should AARSS apply for and where should the forms be lodged? What fees are payable in relation to the sponsorship and 457 visa application? AARSS has offered to pay Fox an annual salary of $260,000 as its chief aeronautical engineer. Does this meet the salary requirements for the 457 visa? If permanent residence is Fox’s ultimate intention, what are his options and how would the 457 visa help?

Question B8: Cedric Chaudry — Temporary employment visas 3.34 Cedric Chaudry is a sports writer for the Mumbai Times. Cedric has been sent by the Indian newspaper to Australia for three months to cover a tour by the Indian cricket team, and to write despatches to be published by the newspaper. What is the most appropriate visa for Cedric? Why?

Question B9: Ludwig Von — Employment, health requirements 3.35 Ludwig Von came to Australia on a temporary work (short stay activity) (subclass 400) visa to work on a short-term project as a computer network and systems engineer in Sydney. He was sponsored by Telstar. Subsequently he was invited by Telstar to take up a three-year contract as their computer network and systems engineer on a new start-up initiative and they have agreed to sponsor him for a temporary visa.

[page 142] a.

Could Ludwig apply to stay in Australia based on the contract with Telstar? If so, under which visa?

After lodging the application, Ludwig was asked to undergo a medical examination, whereupon it was found that he has a heart condition which, though only minor, would normally mean that he does not meet health requirements. However, Telstar has undertaken to meet all medical costs for Ludwig while he is on contract to them. b.

Could Ludwig get a health waiver in this case?

Ludwig was subsequently able to obtain a visa to take up his appointment with Telstar for three years. Toward the end of this appointment his abilities so impressed Telstar executives that they decided to sponsor him to be their permanent computer network & systems engineer. Telstar then lodged an employer nomination in his favour. His medical examination revealed his heart problem remained unchanged. c.

Is Ludwig eligible for the employer nomination scheme visa? Would Ludwig encounter any difficulties in relation to his health problems this time?

Question B10: Westland Constructions — Sponsor obligations 3.36 Westland Constructions, a large Australian-based property development company, approaches you for advice on how it can recruit welders from overseas as it cannot find enough skilled tradespeople locally. a. b.

Explain the sponsorship obligations for a standard business sponsor to them. As an employer, Westland Constructions needs to meet

certain training benchmarks in relation to its employees. Explain briefly what this means.

Question B11: Marj d’Barge — General skilled migration, Job Ready Program and Offshore Skills Assessment Program 3.37 Marj d’Barge, an Irish citizen, came to Australia two years ago on a student visa (subclass 572) and completed an AQF3 certificate in automotive electrical technology at Collingwood College of TAFE two weeks ago. In the last year of her course, she worked as a trainee automotive electrician at a workshop in Richmond during weekends and school holidays. Marj wanted to apply for permanent residence in Australia, and sought a skills assessment as an automotive electrician. She was told she needed to participate in the Job Ready Program (JRP). a.

What is the Job Ready Program? How will it affect Marj’s plans for permanent residence in Australia? [page 143]

Marj decided the Job Ready Program was too cumbersome and went back home instead. She found a job in a workshop in Ireland as an automotive electrician. Six more months have now elapsed. Due to the global economic crisis, the European automotive industry is suddenly facing unprecedented difficulties, and several workshops have gone bankrupt in a matter of days. In a panic Marj thought of Australia again and enquired at the Australian Embassy in Dublin about migration to Australia. This time she was told she needed to satisfy the Offshore Skills Assessment Program (OSAP). b.

What is the Offshore Skills Assessment Program? How will it

affect Marj’s ambition to migrate to Australia? Does the fact that she has an Australian qualification help in any way?

Question B12: Paddy and Cathy — Skilled visas and points test 3.38 Paddy, aged 40, has studied to junior high school level, and works as a used car salesman in Belfast in Northern Ireland. His wife Cathy, who has recently turned 39, has spent three years studying at Dublin University, graduating with a Bachelor degree in Actuarial Studies. Cathy has, for the past 10 years, been working as an actuary for the Irish State Insurance Society. Paddy has an elder sister, Rita, who migrated to Australia 30 years ago. Rita has lived in the Melbourne suburb of Richmond (postcode 3010) for the past 20 years and works as a tram driver for Yarra Trams Ltd. Paddy and Cathy have been thinking of migrating to Australia and have asked Rita to sponsor them. Paddy has told Rita that they have some £50,000 in savings (assume exchange rate £1 = AU$2), which they can bring to Australia and invest if necessary. Paddy and Cathy both sat for the IELTS test. Paddy scored 5, 4.5, 6.5 and 6 while Cathy scored 8, 7, 8 and 7.5 on the four components of the test. Both Paddy and Cathy are fluent in Irish Gaelic. Cathy had her qualification assessed, and was advised that it is recognised as being equivalent to a similar Australian qualification for migration purposes. a. b.

What visa should Paddy and Cathy apply for? Where and how must the application be lodged? Is Paddy’s occupation on the skilled occupation list? What would be Cathy’s occupation and ANZSCO code on the skilled occupation list? Which is the assessing authority for this occupation?

c.

What are the point scores for Cathy’s application? Will she pass?

In answering this question, you may need to refer to legislative instruments regarding pass marks and pool marks, skilled occupations list, credentialed community languages, and designated areas. [page 144]

Question B13: Peter Pan — Work and skilled visas 3.39 Peter Pan is 25 years old and was born in Pirates Cove, Neverland. Although many residents of Neverland can speak French, Peter only has a very basic vocabulary. Peter applied for a student (subclass 573) visa from the Australian High Commission at Neversea. His visa was granted on 9 November 2013. Peter then came to Toowoomba and commenced a Bachelor of Agricultural Science degree at Bond University. He completed his course one month ago, but his student visa is valid for another three months. Peter is not married and has no relatives in Australia. He says he has not worked much in Australia, preferring to go down to the bright lights of the Gold Coast on weekends and school holidays instead. Nevertheless, he would like to stay in Australia to find employment and eventually apply for permanent residence in Australia. He sat for the IELTS test and obtained 6.5, 6, 7 and 6 in the four test components. What visa can Peter apply for? How should he apply for it? Would he need a skills assessment? How long would the visa be granted for?

Question B14: Eugene Ivanoff — General skilled migration

3.40 Alexei Molotov comes to your office. He tells you that he migrated to Australia in the 1970s under the White Russian program and now lives in Cairns, Queensland. Alexei wants to enquire about sponsoring his nephew (Alexei’s sister’s son) Eugene Ivanoff to migrate to Australia. Alexei tells you Eugene is aged 33, and graduated with a degree in Engineering (specialising in aeronautical engineering) from the Saint Petersburg State University in Russia 10 years ago. Eugene has been working in the Russian Air Force for the past 10 years, but he has only been employed as an aeronautical engineer for the last four years. Eugene is unmarried and doesn’t have a girlfriend, such is the air force life. Eugene decided that he was ready for a new challenge, so he asked his uncle Alexei to find out whether he could migrate to Australia. Alexei tells you Eugene has sat for the IELTS test and obtained scores of 6, 6.5, 6 and 7 on the four components of the test. a.

b. c.

What would you advise Alexei about a skills assessment for Eugene’s qualifications; for example, when should Eugene apply for the assessment, where should he apply for the assessment, what occupation and ANZSCO code would be the most appropriate etc? Which visas may Eugene be eligible to apply for? Where and how must the application be lodged? Assuming Eugene’s degree (which was taught in the Russian language) is assessed to be equivalent to an Australian Bachelor degree, what would be [page 145] Eugene’s breakdown of scores on each factor in the points test if he were to apply now?

d. e.

If Eugene’s score reached only the pool mark but not the pass mark, what would happen to his application? If Alexei sponsored Eugene for the 489 skilled regional sponsored visa, how would this affect Eugene’s aim of permanent residence in Australia?

In answering this question, you may need to refer to legislative instruments regarding pass marks and pool marks, skilled occupations lists, credentialed community languages, and designated areas.

Question B15: Jonathan Swift — ETA and business talent 3.41 Jonathan Swift is a businessman from South Africa who is in Australia on a visitor (subclass 600) visa in the business visitor stream. He has no family in Australia. a.

b.

Jonathan’s visitor (subclass 600) visa is about to expire. He has heard it is easy to get an ETA if he leaves Australia for a short while (for example, to New Zealand). Can he do this? On second thoughts, he decides he would like to apply for the business talent (subclass 132) visa instead. Where can he apply for the subclass 132 visa? What does he need to obtain before he can lodge his application?

Question B16: Nathan Yahoo — Business skills visas 3.42 Nathan Yahoo, an Israeli citizen, inherited US$20 million from his uncle who passed away a few years ago. His uncle stipulated under the terms of his will that Nathan was not to invest the money in highly risky investments, although the will did not specify the definition of these investments. Nathan invested the money in ‘El Mitzvah’ bonds, a speculative and highly risky investment that has for

the past five years been giving Nathan a good return on his investment. In the space of five years, Nathan’s investment has grown from US$20 million to US$25 million. He has not considered any other investments or business options. Nathan is 43 years old and unmarried. He is fluent in Hebrew and English and continues to live in Israel. Nathan would like to migrate to Australia. a.

b.

What business skills options does Nathan have? Describe the pathway Nathan will need to go through to get permanent residence. What does he have to show in order to satisfy requirements for this category?

Question B17: Pauline Smith — Business skills visas 3.43 Nathan Yahoo (from Question B16) had also invested part of his profits from El Mitzvah bonds into establishing an Internet social network called ‘Facenet’, registered in the UK, which had succeeded beyond all expectations. In fact, when [page 146] Nathan could not secure a nomination from any state or territory in Australia to back his application as an investor (because they did not support speculative investments), Nathan had ended up using Facenet, rather than El Mitzvah bonds, as the vehicle to gain a nomination from the Victorian government for the business innovation stream of the business innovation and investment (provisional) visa. By this time Nathan had married Pauline Smith, a computer programmer from London who had helped him set up Facenet, and she was also included in the application for the 188 visa. After arriving in Australia on a 188 visa, Nathan put up AU$250,000 to set up an Australian branch, ‘Facenet Oz’, in

Wodonga together with his wife as joint proprietors, and they employed two computer experts full-time to help them run the business. Facenet Oz, however, was not as successful as the original Facenet, and only managed an annual turnover of about AU$120,000. Moreover, two years after they started Facenet Oz, the global economic crisis hit, and Nathan’s investments in El Mitzvah bonds evaporated. Nathan later fell ill and died. Facenet Oz was thus left to his widow Pauline to run and manage. In addition, Pauline needs to be away from Australia quite a lot to manage the original Facenet in the UK. a.

b.

Now that Nathan has passed away, can his widow Pauline gain permanent residence? If so, what requirements will she need to satisfy? Will it affect her application for the permanent visa if she is outside Australia for much of the time?

Question B18: Paul Inenn’söhn — Business skills visas and dependent child 3.44 Paul Inenn’söhn lives in Helsinki and runs a famous ice cream parlour, Norgen Daaz, in Finland. The Premier of Victoria made a point of detouring to Helsinki on his way to Malaysia especially to consume this famous ice cream. Based on the recommendations of the Victorian Premier, Paul wants to migrate to Melbourne and run a similar business, but he wants to continue operating his business in Finland as well. Paul responds to your Internet enquiry service, providing the following financial details for his ice cream business for the past four years.

[page 147] Paul is aged 56 and a widower. His only other assets are a house in Helsinki worth AU$1.5 million and a chalet in Rovaniemi worth AU$1 million. Whilst he can speak several European languages fluently, he has a very limited English vocabulary. Paul says he can sell his Helsinki home and transfer those funds to Australia, but he does not want to dispose of the business assets because the business is going so well, and he does not want to sell the chalet as he needs a place to live when he returns to Finland from time to time. a. b.

What business skills migration options are available? What would you recommend that Paul apply for? Why?

Paul has a daughter, Ingrid, who is aged 28 and is mentally disabled. She is confined to the family chalet at Rovaniemi and under constant nursing care. Ingrid had contracted encephalitis at the age of 25 in the Baltic Sea on her honeymoon and her husband left her soon afterwards when it became clear that she was not going to get better. Neither of them has ever bothered to seek a formal divorce. Paul asks whether he could simply not mention Ingrid at all in his application for business skills migration, since she is never going to leave Finland, and what Australian Immigration doesn’t know, doesn’t matter. c.

Is Ingrid a dependent child of Paul? Why?

d.

If Ingrid is assessed to be a dependent child, would her medical condition affect Paul’s own application?

Question B19: Joanne Field — Student and dependants 3.45 Joanne Field is from the US. She has a six-year-old daughter, Cindy, and a de facto husband, Ben. Joanne is coming to Australia to undertake a PhD in Agricultural Science. a.

b.

Can Cindy and Ben come to Australia with Joanne on student visas as her family members? Is there any other information about her de facto relationship with Ben that you need in order to answer this question? Would your answer be different if Joanne and Ben were not de facto spouses, but were engaged to be married?

Question B20: Ruchitta Riches and Speedy Gonzales — Student and work rights 3.46 Ruchitta Riches is from Mexico and has come to Australia to do a 20-week English language course, to be followed by a Master’s degree by research in Nursing Management at Victoria University. She was granted a 500 student visa with the condition 8105. Her husband Speedy Gonzales is accompanying her to Australia and he has condition 8104 on his visa. [page 148] a. b.

What advice would you give to Ruchitta Riches about permission to work rules? Speedy Gonzales is a Mexican chef and ‘Prickly Cactus’

Mexican restaurant in Box Hill wants him to work for them full-time. Can he do that?

Question B21: Johnny Will — Refugee status 3.47 Johnny Will came from England on a tourist visa and wants to apply for refugee status. You tell him that to qualify for recognition as a refugee he must have a fear of persecution based on Convention reasons. He replies that he is an English gypsy and that they are persecuted by the other English peoples. a.

b.

What is the United Nations definition of a refugee? Does the Migration Act conform to this definition? If not, what is the definition of a refugee under the Migration Act? What are the Convention reasons? Which of the Convention reasons do you think will give Johnny the best chance of claiming protection?

Question B22: Mary Kaur — Protection visas 3.48 Mary Kaur is a Fijian Indian and was a child living in Fiji at the time of severe civil unrest. During this period a group of ethnic Fijians came to her parents’ farm and abused and beat up members of her family. She herself was not physically injured but she was in shock and terribly frightened. One week later, when Mary and other members of the Indian community were attending a religious service at their local mosque, a number of ethnic Fijians, who were intoxicated, came and disrupted the service. Police were called, but when they arrived, they fired tear gas and assaulted the religious congregation instead. Mary and her parents were able to escape uninjured, but she did not go back to school for the next couple of months because of her state of shock, and subsequently developed headaches and asthma as a result of these traumatic experiences. Mary’s mother, Amarjeet, worriedly chose to visit her brother Ranjit

in Brisbane, and took Mary with her. But Amarjeet decided to overstay her visa and, as a consequence, Mary also became unlawful. Amarjeet was tragically killed in a car accident some two years ago. Mary, now aged 30, has been in Australia for 16 years and her visitor visa has expired by more than 15 years but she has never approached Immigration to apply for any visa. Mary is afraid to return to Fiji because of her past experience there. She has since moved to Mount Isa where she works in a local Indian restaurant. Mary is still unmarried. Is Mary eligible for consideration as a refugee in accordance with the Convention reasons? [page 149]

Question B23: Anya Kornikov — Protection visas 3.49 Anya Kornikov was a Russian national living in St Petersburg when she became involved with her boyfriend, Boris (a stock broker), and several of his colleagues, in a private investors’ club known as Get Rich Quick. Club members were required to contribute 1000 roubles per month to the club. The money was then used by Boris to purchase shares with a view to the mutual profit of the club members. The club was registered under Russian law as a legal entity. The investment policy produced outstanding returns with the result that the club received a good deal of publicity, amassed considerable wealth and became very well known in the investment world. The club became so ‘cashed up’ that it saw and took the opportunity to launch a hostile takeover of an oil company, OilCo. Unfortunately, the process became bitter and protracted. What the Get Rich Quick members did not know was that Russian criminals had a similar objective in mind and had been working

quietly to get themselves into a position to take control of OilCo. Get Rich Quick was seen as an obstacle to their goal and they did not hesitate to take steps to remove the problem by turning their attention to the individual members of the club. Muggings and malicious damage to the homes and possessions of club members soon curbed their enthusiasm for the OilCo takeover but Boris was made of sterner material and had control of club funds. He refused to be intimidated and pursued the takeover with renewed vigour. Anya was terrified as the criminals had actually burned down her family home and her father was beaten to death. Anya and her mother (Anastasia, whose sister was a permanent resident in Australia) managed to get Australian visitor visas. Anastasia spent a fortnight visiting her brother-in-law in Dubai on the way to Australia to tell him of the circumstances of his brother’s death. Anya came directly to Australia. Their visitor visa allowed them three months’ stay and they spent a pleasant time with Anastasia’s sister; basking in the peace and security of Australia. After 10 weeks, however, they had to face reality and decide what they were going to do. They were both still terrified of returning. Anya discovered that they could apply for a visa for refugees. Anya thinks that the most appropriate visa to apply for would be women at risk (subclass 204). a. b. c. d.

Is women at risk (subclass 204) the most appropriate visa for them? Are there any other Australian refugee and humanitarian stream visas they could apply for? Do they fall within the definition of members of a particular social group? Can they apply for a visa when they are seeking protection from a criminal group rather than from the government? [page 150]

Question B24: Karim Sepehr — Refugee status 3.50 Karim Sepehr is an architect from Iran who arrived in Australia on a work and holiday visa several months ago. He comes from a fundamentalist Islamic family that has close ties with the Revolutionary Guards. Ever since childhood Karim has felt that the strictures and constraints of Islam were somehow not right and this has led him to begin an exploration/examination of Christianity through an Iranian Christian acquaintance. Karim was made aware that under Islamic law he could be liable to the death penalty if he converted and was discovered. Since arriving in Australia, Karim has become an active member of the local church and has recently gone so far as to convert to Christianity after convincing the church board and the pastor of his genuine desire for and belief in Jesus Christ as saviour. Last week his Islamic landlady found out what he had done and immediately evicted him and also told him that she had contacted his aunt, who was married to a General in the Revolutionary Guards, to let her know what he had done. Karim’s mother and father have now been disowned by the other members of the family and fear for Karim’s safety should he return to Iran. They believe family members may attempt to do him serious harm. You have obtained a sworn statement from the pastor confirming the genuineness of the conversion and have obtained a Country Information Report which shows that Iran is a religious state where converts have little if any protection. a. b.

Which visa should be applied for and on what grounds? If Karim’s claim for refugee status is unsuccessful, but he fears being refouled to Iran, can complementary protection measures assist in his case?

Question B25: Ali Hasan — Visitor, medical

treatment visas and work 3.51 Ali Hasan came to Australia three months ago on a visitor (subclass 600) visa. His visa will expire next week and he has come to see you about extending his stay because he has been enjoying himself so much here. During your meeting you notice that Ali’s left eye is patched up and you ask him what happened. He tells you he was playing with firecrackers the other day when some exploded in his face; causing an injury to his eye. The doctor has told him to come back for further laser treatment in a month. Ali tells you that he has very little money left and cannot really afford to go home as yet. He says he needs to work in Australia to earn some income or he will become destitute. He says he has nowhere to stay and suggests you allow him to sleep in the corridor outside your office. a. b.

What are the possible subclasses of visas Ali could apply for? Can Ali be permitted to work if he is so destitute? Quote the legislative basis for your answer. [page 151]

Question B26: Yessir Ararat — Bridging visas 3.52 Yessir Ararat came to Australia on a three-month visitor (subclass 600) visa, six months ago to visit his mother, who is an Australian citizen. While he was here he got a further extension for three months, but because of his mother’s ill-health, he wants to apply to remain in Australia as a carer so that he can look after her. Yessir came to see you last Friday. You noticed his tourist visa had actually expired the day before, but you processed his paperwork nonetheless and managed to get into DIBP and lodge his application for the carer (subclass 836) visa just as it was closing its doors on Friday afternoon.

a.

b.

c.

d.

Is Yessir eligible for a concession on his visa application charge for the carer visa? Apart from the usual forms, fees, etc, what specific matter must have been attended to by Yessir and his mother for the subclass 836 carer visa application to be validly made? What bridging visa is Yessir eligible for? Is it granted to him automatically upon lodgment of the carer (subclass 836) visa application? Sometime later, Yessir wants to get permission to work at his brother’s Lebanese restaurant. Does he have to apply for another bridging visa? What would he have to demonstrate before he could be granted permission to work? Two months after he lodged his carer visa application Yessir wants to go back to Lebanon for family reasons. Can Yessir apply for a bridging visa to leave and then return to Australia?

Question B27: Delia Llama — Bridging visas 3.53 Delia Llama is a senior priestess for the Australian-Tibetan Spiritualist Association and has been in Australia on a temporary work (long stay activity) (subclass 401) visa for four years. Her visa is expiring next week. Delia is applying for an extension of her temporary work visa. She has completed the relevant forms and paid the correct fees. a.

The 401 temporary work (long stay activity) visa has been repealed. What visa should Delia be applying for now? What bridging visa is Delia eligible for? Is it granted to her automatically on lodgment of the visa application? What work conditions would this bridging visa have upon grant?

After lodgment of Delia’s application but before Immigration can finalise it, she needs to travel overseas on some urgent spiritual business.

b.

As her previous 401 visa has by now expired and the new replacement visa has not yet been granted, can Delia apply for a bridging visa for her travels?

Question B28: Nelson Mondoza — Bridging visas 3.54 Nelson Mondoza came to Australia four months ago from Mozambique on a student visa, which will expire tomorrow (which is a Monday). His wife Winnie came to Australia to join him one month ago on a one-month tourist visa which [page 152] expires today (which is a Sunday). Nelson wants to apply for a protection visa tomorrow as soon as Immigration opens its doors, and include Winnie on the application. a. b.

What bridging visas are Nelson and Winnie eligible for when they lodge their protection visa application? What work conditions would the bridging visas have upon grant?

Question B29: Joh Bielkesen — Resident return visas 3.55 Joh Bielkesen migrated to Australia under the business migration program from the Netherlands five years ago. In the past five years he has only spent 180 days in Australia. His permanent visa, which was granted in relation to his initial migration application, is expiring next week and he needs to travel to Europe in a hurry. a.

What class of resident return visa would he be eligible for?

About six months ago Joh leased some farm land in Kingaroy and intended to grow peanuts for export, although at present the land is still largely unproductive grazing land. He claims he needs to be away from Australia a fair bit as he has to promote Australian peanuts on the world market. b.

On what grounds would Joh be able to claim eligibility for the five-year return (subclass 155) visa? What documentation would most likely be needed to be produced to substantiate his claims? If he is eligible, will he be granted a full five years validity on his return (subclass 155) visa?

Although Joh has only spent 180 days in Australia in the past five years, his wife Flo has stayed in Australia all this time and obtained another five-year resident return visa last week. c.

Would this alter Joh’s situation in relation to his eligibility for the five-year return (subclass 155) visa? Will Joh be granted the return (subclass 155) visa with the same validity period as Flo?

Another two years have gone by and Flo has now become an Australian citizen, but Joh is still on a resident return visa, as he had been told by one of his friends that he needed to be in Australia for 10 years before he could become a citizen, and he has lived in Australia for less than two years in total. d.

Is what Joh’s friend told him correct? If not, what is the normal residence requirement for grant of Australian citizenship?

Question B30: Grace Whitelaw — New Zealand citizens 3.56 Grace Whitelaw, aged 72, is a UK citizen who came to Australia to visit her cousin for the first time this year. While she was

in Australia she obtained New Zealand citizenship, but she likes Australia so much that she wants to stay. [page 153] a.

b.

c.

Does Grace have to change her visa now that she has changed from being a UK citizen to a New Zealand citizen in Australia? What is her immigration status in Australia? What visa would she hold, and how long can she stay? Can she have access to the Australian pension and other social welfare? Grace’s husband Garth, who is a UK citizen, has also arrived in Australia and he too wants to remain in Australia with Grace. Not being a New Zealand citizen, how can he stay in Australia to be with Grace? [page 154]

Subject C: Visa compliance, cancellation and review Question C1: Dulbar Singh — General visa cancellation 3.57 Dulbar Singh came to Australia from Fiji last year on a prospective marriage (subclass 300) visa, sponsored by his fiancée, Deepa. Dulbar was accompanied by his son from a previous marriage,

Vijay, aged 16. After arriving, Dulbar decided he was not going through with the marriage to Deepa after all. Deepa then informed DIBP, which sent Dulbar a Notice of Intention to Cancel his and Vijay’s visas. Dulbar was given five working days to respond to the notice. List the grounds and legislative basis upon which DIBP would: a. b. c.

consider cancelling Dulbar’s visa. consider cancelling Vijay’s visa, assuming Vijay was in Australia. consider cancelling Vijay’s visa, assuming Vijay was outside Australia.

Question C2: Ngo Dinh Nhu — Visa cancellation on incorrect information 3.58 Ngo Dinh Nhu came to Australia from Vietnam on a visitor visa three months ago. On her application form she said she was married with three children and that her husband and children were remaining in Vietnam while she visited her brother in Sydney. In support of the application, she produced a Vietnamese marriage certificate and birth certificates for her children. Nhu was granted the visa and made arrangements to fly to Australia. On her incoming passenger card, she declared that she was married. Shortly after Nhu’s arrival in Australia, she applied for permanent residence on the grounds of marriage to an Australian citizen. On her residence application, she said she was divorced and remarried. On examining Nhu’s details, it was found she obtained a divorce in Vietnam after she got her visitor visa but before she came to Australia. Her visitor visa, valid for three months’ stay only, expires next week. On what ground and legislative basis could DIBP consider cancelling Nhu’s visa?

Question C3: David Higson — Cancellation and freedom of information 3.59 David Higson is a US national who came to Australia on a visitor ETA. David then married Aqsa Mohammed, an Australian citizen of Iraqi origin, and [page 155] applied for permanent residence on the basis of that marriage. After he was granted a partner (temporary) visa (Class UK, subclass 820), David converted to Islam and travelled to Syria. ASIO received reliable information that David had joined the ISIL jihadist movement, and as a result of this information, the Minister for Immigration cancelled David’s 820 visa, and has refused to give reasons for this decision. a. b. c.

On what grounds could the Minister have cancelled David’s 820 visa? As a non-Australian citizen, can David request a copy of his Immigration file? Do you think Immigration will release the information received from ASIO to David? Why?

Question C4: Freddy Kruger — Visa cancellation, s 501 and review 3.60 Freddy Kruger is in Australia on a six-month visitor visa. Shortly after his arrival, the Australian government received confidential information from the FBI that Freddy was a member of the ‘Nightmare on Elm Street’ gang which was heavily involved in organised crime in the US. The FBI report also mentioned that Freddy

may be in Australia with the intent of establishing a chapter of the gang here. DIBP sent him a Notice of Intention to Consider Cancellation under s 501 asking him to ‘show cause’ why his visa should not be cancelled. Despite his response that there must have been a mix-up with his identity, Immigration decided to cancel his visa. a. b. c.

d.

Can Freddy appeal against the decision? Who to? Within what timeframe? If Freddy is unsuccessful at review in having his visa restored, can he seek judicial review? Freddy has heard that a number of other people have banded together to initiate a class action challenging the legality of the Minister’s Direction. He asks whether he can start a class action. What can you tell him? Would your answer be different if the Minister had personally cancelled Freddy’s visa under s 501?

Question C5: Harriet Harilela — Student visa and student visa cancellation 3.61 Harry Harilela, a millionaire businessman from India, wants to send his 17-year-old daughter Harriet to study in Australia. Harry has obtained approval from Camembert Girls School for Harriet to enrol in Year 11. a.

b.

Which student visa is the most appropriate for Harriet? What assessment level is India for this visa? Describe the requirements in relation to Harriet’s English language proficiency and access to funds for this student visa. Mrs Harilela is a bit worried about sending Harriet to Australia by herself to study and wishes to accompany Harriet so she can take care of her. What visa would Mrs Harilela be applying for? What forms are required? Does she need to be

nominated for this visa? [page 156] c.

Harriet has a younger brother, Sanjay, who is aged five and Mrs Harilela doesn’t want to leave Sanjay behind in India. Can Mrs Harilela include Sanjay in her application for a student guardian visa?

Harriet eventually gets a student visa to come to Australia and commences Year 11 at Camembert Girls School. Her mother has decided not to accompany her to Australia after all. Three months into Year 11, Harriet decides that she really does not want to attend Camembert Girls School but, rather, she wants to do a Certificate course in Massage Therapy at Collingbush Commercial College. d. e.

Can Harriet change courses? If Harriet is allowed to change courses, what forms are to be used for the course change and permission to work?

The school principal decides to refuse her application for change of course and tells her she should continue studying at Camembert Girls School. Rather than heeding this notice, Harriet leaves Camembert Girls School. f.

In this instance, what must Camembert Girls School do insofar as Harriet’s enrolment is concerned? What could happen to Harriet’s visa because she is no longer attending the school?

Harriet is eventually caught by Immigration Compliance frying fish at her Aunt Pauline’s fish and chip shop in Ipswich. Harriet states that she was only helping out and was not getting any payment or other reward. g.

What is the definition of ‘work’? Is Harriet guilty of working

if she was not getting any remuneration?

Question C6: Fu Man Chu — Compliance mix 3.62 Fu Man Chu is a Taiwanese national who came to Australia on a student visa. He applied for an extension of his student visa, but after his original student visa had expired. His application was rejected because he had not been attending classes. Fu was subsequently caught by Immigration Compliance at a Chinese restaurant where he was working illegally and was placed in detention. Fu tells you he is now married to an Australian citizen but he thinks he might also want to apply for refugee status. a. b.

Can Fu apply to remain in Australia on the basis of his marriage to an Australian citizen? Why? Can he apply for refugee status? Why? Is there any time limit for him to lodge the application?

Question C7: Placido Flamingo — Unlawfuls and exclusion periods 3.63 Placido Flamingo came to Australia from the Philippines on a tourist visa and was caught working without permission at the Happy Chook Takeaway [page 157] Restaurant. His tourist visa was immediately cancelled so he applied for a protection visa. The application was refused and, following merits review and ministerial intervention, all of which proved to be unsuccessful, he eventually left Australia on a bridging E visa. Upon his return to Manila, Placido lodged an application for a 500 student visa to return to Australia to study at the Victorian Conservatorium

of Music. a.

Does Placido face an exclusion period if he applies for a student visa?

During his stay in Australia last time, Placido met Maria, a Filipina who is an Australian permanent resident. While they talked of marriage plans, they never quite got around to it. Maria went back to the Philippines and married Placido. b.

Would Placido have an exclusion period if Maria sponsored him for a spouse visa?

It turns out Maria was herself sponsored to Australia as a spouse three years ago but has since divorced and is now an Australian citizen. It would appear she did not like her former husband’s smoking habits, and walked out on him. c. d.

Would Placido encounter any problems in relation to Maria’s sponsorship of him as her spouse? After their marriage, Maria finds that she is pregnant. Would this change the situation in relation to her sponsorship of Placido?

Question C8: Win Shum and Lu Shum — Detention and residence determinations 3.64 Win Shum, a Korean national, came to Australia on an ETA. While she was here, she attended a party thrown by her friend, Jang Geum, where she met Bozo, an Australian citizen. Win Shum and Bozo started a relationship. However, barely one month into the relationship, Bozo said he needed to stretch his wings and broke it off. Jang Geum took pity on Win Shum and invited her to stay at his house. Win Shum then discovered that she was pregnant and eventually gave birth to a son whom she named Lu Shum. To gain extra money for her son’s food, Win Shum worked illegally in a

nearby Korean restaurant. She was caught one day by Immigration Compliance during a raid on the restaurant. By this time, her ETA had long since expired and she did not have permission to work in the first place. So Win Shum and Lu Shum were placed in immigration detention pending removal from Australia. Whilst they were in detention, Win Shum engaged an immigration lawyer to take up their case and the lawyer made an application to DIBP on the grounds that Lu Shum was born an Australian citizen, his father (Bozo) being an Australian citizen. However, as Bozo could not be found, Lu Shum’s citizenship application was rejected. Then, by chance one day, Win Shum received news from Jang Geum that Bozo was being held by the police in Sydney on culpable driving charges. [page 158] a. b.

c.

Can Win Shum and Lu Shum be released from immigration detention? Who can Win Shum appeal to in relation to Lu Shum’s citizenship application? Can Lu Shum obtain a bridging visa while the appeal process is continuing? Now that Bozo has been located, what can be done in relation to Lu Shum’s claim to Australian citizenship?

Question C9: Paul Domingo — Merits review 3.65 Paul Domingo is a pig farmer in Mauritius. He has applied for a visitor visa at the Australian High Commission at Port Louis and, on his application form, said he was coming to Australia to attend his sister Anita’s wedding. The High Commission decided to refuse his application and notified him by mail. Paul wants to appeal against this decision.

a. b. c.

Is the refusal decision a reviewable decision? Who can appeal? What is the fee for the review and within what time limit must the appeal be lodged? As Anita’s wedding is planned for next month, are there avenues for the review to be dealt with quickly?

Question C10: Sergio Mendese — Refugee, compliance, AAT 3.66 Sergio Mendese came to Australia from Brazil on a one-month visitor visa. He was later detained by Immigration Compliance for working illegally at the Brazil 99 coffee shop. During their investigations, Immigration also discovered Sergio had used a false name to obtain his visa, by a simple alteration of his surname from Mendosa to Mendese. While in immigration detention, Sergio told the Compliance officers that he wanted to apply for a protection visa on the grounds that, if he returned to Brazil, he would face persecution because he did not like coffee. While his application for the protection visa was accepted as a valid application, it was promptly refused on criterion 4020 grounds. Sergio was still in immigration detention when he received the refusal notification as he had not been granted a bridging visa. a. b.

What is criterion 4020? Is the refusal decision a reviewable decision? Who can lodge the appeal? Within what time limit must the appeal be lodged in this case? What is the fee for the review application and when must it be paid?

The AAT subsequently decided to summon Melitta Andronicus, the manageress at the Brazil 99 coffee shop where Sergio was working, to attend and to give evidence concerning Sergio’s

employment there. c.

Is Melitta required to attend? Are there any penalties if she does not? [page 159]

At the hearing, Sergio decided he did not like what Melitta Andronicus was saying about him, so he slapped her across the face. When the AAT member tried to calm him down, he got so upset that he jumped across the bench and punched the AAT member in the head repeatedly. Sergio was eventually overpowered, arrested and charged with assault with intent to cause grievous bodily harm. The magistrate thought Sergio’s behaviour against a public official was so abhorrent that he sentenced him to 12 months’ imprisonment. The Minister subsequently signed a deportation order against Sergio. d. e.

Can Sergio appeal against the deportation order decision? To whom? Within what time limit must any appeal be lodged? Can the review authority extend the time limit?

Question C11: Lin Tung Hoa — Refugee and review 3.67 Lin Tung Hoa is a citizen of Myanmar and a member of a fundamentalist Christian denomination which has incurred the wrath of the government because of its criticism of the government’s persecutory behaviour towards people protesting against cruelty to animals. The government’s military often work elephants to death in the course of military training. It is part of the denomination’s faith that members must actively proselytise (seek converts) in order to increase its membership. Hoa

attends the underground church services regularly and spends his weekends seeking converts. He knows that his weekend activities are risky as the authorities frequently patrol the streets looking for people of his denomination and, when they find them, record their details, question them and impose summary financial penalties in the moderate to heavy financial range. These penalties are imposed under the ‘on the spot’ fine provisions of the Protection of the Military Act which prohibits any person from obstructing or hindering the military in the course of carrying out their duties. Hoa perseveres with his proselytising activities even though his fines are mounting up and his financial position is being significantly eroded. Eventually, he becomes so fed up with the harassment and inconvenience that he decides to escape by coming to Australia and applying for a protection visa. He succeeds in obtaining a student visa but applies for a protection visa as soon as he is immigration cleared. He is interviewed by Onshore Protection in due course and asked whether he came to Australia as a genuine student or whether his student application was just a device to enter the Australian migration zone so that he could apply for Refugee Convention protection. Hoa freely admits that he was not a genuine student, that he used a fabricated educational certificate and that his purpose was to access Convention protection. As a result the Minister cancelled his student visa under s 133A of the Migration Act. a.

Can Hoa appeal against the cancellation of his student visa? Who to? [page 160]

He was never really too concerned about cruelty to animals but sees a television program featuring Thai elephants being brought to Australia for breeding purposes. He is immediately appalled by what he perceives as cruelty in subjecting these animals to a long sea

voyage in cramped and awkward conditions. He decides to join the RSPCA and also to join a group known as Protesters against Inhumanity to Animals. This latter group is extremely militant and Hoa is filmed during a demonstration held at Melbourne Zoo. The film, which shows him jumping into the elephant enclosure without clothes, is shown widely throughout Australia and the world on television and the Internet. It is reasonable to expect that the authorities in Myanmar would have seen the footage and be able to identify Hoa from it. The DIBP delegate eventually refuses his application on the ground that it does not believe him. Hoa wants to seek merits review of the decision. b. c.

To which review body must Hoa apply? Apart from convincing the review body that he is telling the truth, what general issues arise in relation to establishing his right to Convention protection? [page 161]

Subject D: Applied migration law and practice Question D1: Abdullah Bin Aladdin — Protection visas and family reunion 3.68 Abdullah Bin Aladdin came to Australia from Afghanistan via Indonesia by boat. His boat was intercepted and he was taken to Christmas Island. He was subsequently transferred to a mainland detention centre in Darwin and placed in immigration detention.

While he was in immigration detention, Abdullah applied for a protection visa on the grounds that he did not believe in the Taliban’s political/religious cause and did not wish to fight for them. He claimed he had been conscripted by the Taliban when they were in power just because he happened to live in an area where the fighting was particularly fierce as he was very strong and tough-looking and it was difficult to find men to fight. Abdullah’s wife and children are still in Afghanistan. The DIBP delegate was inexperienced with the new system of protection visas and eventually approved Abdullah for a safe haven enterprise (subclass 790) visa. Abdullah had learnt skills repairing machinery in Afghanistan for the Soviet occupation forces before they were driven out by the Taliban, and he found a job as a welder with Albury Body Works in New South Wales. Abdullah wants to bring his wife and children to Australia. Identify and explain the issues raised in this case and the potential consequences for Abdullah and his family.

Question D2: Arriveda Ciroma — Partner visas and family violence issues 3.69 Mario Lancer is an Australian citizen who was sent to Naples on assignment by his company. During his stay there he met and fell in love with an Italian girl, Arriveda Ciroma. They had been living together at her apartment for about six months when he was recalled to Australia due to promotion. He believed the offer too good to turn down but he did not wish to leave Arriveda. a.

If Arriveda wants to come to Australia with Mario, can she apply as his fiancée? What visa should Arriveda apply for in Italy? Who completes what forms, and what fees are payable?

[page 162] After much discussion, Mario and Arriveda decide against the fiancée option and Arriveda comes to Australia on an ETA. Their relationship continues and Arriveda falls in love with Australia, especially Lygon Street. Mario and Arriveda decide to get married and lodge an application for Arriveda to stay permanently in Australia. On their wedding night, however, Arriveda discloses to Mario that, despite what she might have told him in the past, she actually has a five-year-old daughter, Gina, living in Sicily with her parents, and she would dearly like Gina to join them. Mario, although a bit taken aback by this news, agrees that Gina should also come to Australia. b.

In this situation, what visa class(es) and subclass(es) should Arriveda apply for in Australia? What forms and fees? And what are the visa class(es) and subclass(es), and forms and fees for Gina in Sicily?

Arriveda was granted a partner (temporary) visa, and Gina also managed to arrive in Australia to join Arriveda and Mario. However, they are still about a year off from the two-year mark for grant of permanent residence. In the meantime, Mario’s company has gone into liquidation because of the recession. He lost his job and started to drink heavily, often coming home extremely late at night, abusing Arriveda and terrorising Gina. On more than one occasion, he hit Arriveda so badly that she required medical treatment, but she never lodged an official complaint with the police. Things finally became unbearable and Arriveda took Gina with her and sought shelter at a women’s refuge. c.

d.

Under the circumstances, with the marriage no longer existing, can Arriveda and Gina obtain permanent residence? Quote the legislative basis. Without wishing to have her matter resolved before a court of law, what evidence could Arriveda rely on to claim she and

e.

Gina were the victims of family violence? Despite the evidence submitted by Arriveda, Immigration was still not completely satisfied about the claim that she was a genuine victim of family violence. In this situation, what else can Immigration do before making a decision on her visa application?

Question D3: Brigitte La Deux — Complex case and ethical issues 3.70 Brigitte La Deux is a French citizen who came to Australia last year on a student visa to do a Bachelor degree course in Education at Griffith University on the Gold Coast. After arriving in Australia, Brigitte discovered that life on the Gold Coast is better than on the French Riviera. She found a full-time job as a waitress at a cafe in Surfers Paradise during the day, and spends her nights raving in local nightclubs and discos. Needless to say she hasn’t been attending classes. a.

What should Griffith University do in relation to Brigitte’s unsatisfactory course attendance? What could happen to Brigitte’s visa? [page 163]

Brigitte tells you she has entered into a relationship with Bazza, who is Australian, and she has been staying with him for the past month at his place. She has apparently brought up the subject of marriage, but Bazza keeps changing the topic at the slightest hint of such. He has apparently told Brigitte life is too short and he intends to ‘gather ye as many rosebuds as ye may’. Brigitte asks you whether she can stay in Australia based on her relationship with Bazza and

you tell her she does not appear to meet the requirements of a de facto spouse. Brigitte asks what the requirements are. You start to recite the Migration Regulations when she exclaims ‘Mon Dieu! Non comprendez! I do not understand one word of what you are saying!’ b.

c.

Briefly explain to Brigitte in simple terms without the legal jargon why she would not qualify as a de facto spouse. Also explain to Brigitte the things Immigration would be looking at in determining whether she and Bazza are in a genuine and ongoing relationship. If Brigitte insists on applying on the grounds of her de facto relationship with Bazza, and her application is refused, can she appeal against the decision? Who to? Within what time limit must she appeal? What is the review application fee? Can the application fee be waived or refunded under any circumstance?

In desperation, Brigitte begs you to find her a husband so that she can stay in Australia. As you are a bit short on cash and some $20,000 in debt due to your gambling habits, you suggest your best friend Cecil is just the person to marry her so as to help her gain permanent residence. You tell Brigitte your secretary Maude is a marriage celebrant and she will agree to act as celebrant to the marriage and you can get a couple of kids from uni to sign whatever statutory declarations are required for her application. You tell Brigitte it will only cost her a total of $50,000. Brigitte is overjoyed and agrees. d.

What breaches of the Migration Act and/or Migration Agents Code of Conduct would you, Brigitte, Cecil, Maude and the ‘couple of kids from uni’ have committed if you went ahead with the marriage plan just to help Brigitte gain permanent residence in Australia? What are the penalties for each party?

Question D4: Forrest Gumpf — Family migration

and assurance of support 3.71 Forrest Gumpf, who lives in the US, is married to Jenny. They have two daughters, Marylou (age 17) and Suzie (age 15) who both attend New Jersey State High School full-time. Forrest is an only child and his widowed mother (Mrs Georgia Gumpf) lives in Australia. Jenny’s parents are both deceased and she has only one brother, Wayne, who was reported as ‘missing in action’ in the Vietnam War in 1970 and has not been heard of since. Forrest and Jenny want to migrate to Australia and Forrest’s mother has agreed to sponsor them in the remaining relative visa category. a.

In this case, who needs to complete what form? Where must the application be lodged? [page 164]

b.

Is the remaining relative visa category one that requires an assurance of support? How many assurances are required in Forrest’s case, and why? Quote the legislative basis.

Georgia Gumpf is in her 70s. She is an age pensioner with no substantial assets. However, her next door neighbours, Danny and Grace, are prepared to help out as assurers. Danny and Grace have two children, Henry, aged eight, and Jessica, aged six. Danny is a cargo handler at Melbourne Airport and Grace stays at home looking after the children. c.

d.

Can Danny act as an assurer even though he is not related to Forrest or Jenny? What information and evidence would be considered to determine if Danny’s income is sufficient to be eligible to act as assurer? It turned out that Danny’s income was not quite sufficient for him to take on full responsibility as assurer. Grace’s uncle Dominic, who is a part-time solicitor with a Carlton law firm,

e.

was approached and he has generously agreed to be coassurer with Danny. Is this permitted? How much bond money and health charge would be required if Forrest and his family are approved for migration under the remaining relative visa category? Quote the legislative basis.

After Forrest had lodged the application, Jenny got a letter out of the blue from her long lost brother Wayne in Vietnam. He said that he had become disillusioned with the war and so he had simply disappeared from the scene, but he is now happily married to a local Vietnamese woman and they have 10 kids. Wayne invites Forrest and Jenny to come to Vietnam to visit him. f.

In this scenario, do Forrest and Jenny still qualify for a remaining relative visa? Why?

After some excitement at the news of their long lost relative, Forrest and Jenny found out that it was all a hoax and that ‘Wayne’ was in fact an impostor involved in an elaborate scam designed to take advantage of families of ‘missing in action’ soldiers. After the scam was exposed ‘Wayne’ was caught by the authorities and imprisoned. Forrest and Jenny were then eventually approved for migration. After arrival in Australia, their daughters Marylou and Suzie began attending school and they applied for Austudy payments. g.

h.

Are Forrest and Jenny eligible to claim social security benefits immediately after arrival in Australia? If not, how long would they normally have to wait before they could do so? What is the legislative basis? Is Austudy a form of payment which is recoverable under the assurance of support? What would happen to the bond money paid by Danny and Dominic in respect of the assurance of support provided if Marylou and Suzie did receive Austudy payments? [page 165]

Question D5: Manuel La Pagayo — Complex case and merits review 3.72 Manuel La Pagayo was invited by his sister Ma Teresita, an Australian citizen, to come to Australia to attend her ‘Big 50’ birthday celebration. Manuel’s application for a visitor (subclass 600) visa was refused and the refusal letter was sent from the Australian Embassy in Manila to Manuel, who lives in Cebu in the Philippines. Manuel and Ma Teresita want to appeal against this decision. a.

Who can appeal? To whom? What is the time limit for lodging the review application? Can the review be fast-tracked to ensure Manuel has a chance to arrive in time for Ma Teresita’s birthday celebration? Quote the legislative basis.

Following the review, Manuel’s application for the visitor visa was approved. He came to Australia and, at Ma Teresita’s birthday party, met Zenaida, who is an Australian permanent resident. After a short period of courtship, Manuel and Zenaida got married one month ago. They come to see you today. b.

On looking through his passport, you find that Manuel’s visa has the 8503 ‘no further stay’ condition. What does it mean? Can Manuel get a waiver of the condition? What must Manuel be able to prove if it is possible to obtain a waiver of the condition? Quote the legislative basis.

After being made aware by you of the difficulties they may face if Manuel applied onshore, they wonder whether Manuel should go back to the Philippines and be sponsored by Zenaida for a partner visa. However, it turns out that Zenaida was herself sponsored from the Philippines as a fiancée three years ago and has only been divorced from her first husband for six months, which was shortly after she had obtained her permanent residence in Australia. c.

In this situation, can Zenaida sponsor Manuel for the partner visa? Why? Quote the legislative basis.

During a further discussion with Manuel and Zenaida about the possible difficulties they may face, Manuel mentions that he had heard from someone else about a category called ‘carer’, and asks whether he can be Zenaida’s ‘carer’ because, he says, ‘I care for her’. d.

Can Manuel apply? Quote the legislative basis.

Towards the end of your discussions, Zenaida suddenly remembers that someone she works with, some guy called M’butu from Somalia, was able to get permanent residence in Australia on refugee status. They ask you whether Manuel could do the same. You explain that Manuel would need to meet the definition of a refugee under the UN Refugee Convention. They ask you what you mean by that. e.

What is the definition of a ‘refugee’ as defined in the UN Refugee Convention? Has the Migration Act redefined this definition? [page 166]

Question D6: Brittney Pears — 8503 waiver submission 3.73 Ms Brittney Pears is a citizen of Fiji who came to Australia on a visitor (subclass 600) visa in the sponsored family visitor stream to visit family members. She arrived two months and 20 days ago, and has 10 days left on her current visitor (subclass 600) visa, which is valid for three months and is subject to conditions 8503 and 8531, amongst other conditions. Although several months pregnant at the time of arrival in Australia, Ms Pears did not envisage that there would be any difficulty in her travelling prior to the birth of her child. She has already booked two flights due to depart within the three months as prescribed by her visa.

However, now approximately eight and a half months pregnant with an expected delivery date just after the expiry of her visa, Ms Pears’ treating doctor from the Royal Women’s Hospital in Ballarat, Victoria has assessed her as unfit for travel. Air Fiji’s current policy also only permits pregnant women more than 32 weeks pregnant to fly if cleared in writing by their doctor as fit for travel. Ms Pears wishes to apply for a medical treatment visa, to enable her to remain in Australia for the birth of her child and the immediate post-natal care. She has no intention of staying in Australia permanently. a. b.

Can Ms Pears apply for the medical treatment visa? Draft your submissions in support of the application for a waiver of the 8503 condition to DIBP.

Question D7: Mr Perez — Client communication 3.74 Mr Perez contacted your office to come in to discuss sponsoring a woman to come to Australia from Chile as his fiancée. Your administrative assistant says that Mr Perez has arrived for this appointment and his English does not seem to be very clear. However, he says that it should be all right as Mr Perez has brought his brother with him who speaks very good English. Explain what steps you will take to communicate with this client.

Question D8: Ms Winslow — Migration practice management 3.75 You have been approached by Ms Winslow to assist in making sure that her business, ‘Roaming Wild Visas’, complies with the requirements of the Code of Conduct.

[page 167] The firm has a website which allows people to enter their details and get an instant assessment of their eligibility to obtain a visa. The website has fields for entering age, occupation and English language skills. Mr Lancaster from Canada has made an online enquiry as a 33year-old chemist. The result on the website has shown that he is eligible for a visa. Ms Winslow says that this is a great way to attract potential clients. When you raise a query about whether she has enough information to give that advice, she says that it is only an enquiry and the person is not yet a client, and that obviously once they become a client she would look at the case more closely. Ms Winslow was previously in partnership with another agent, Mr Moon. He left the partnership six weeks ago to pursue his interest in the restaurant trade. There are two boxes of files in his office. Ms Winslow says that Mr Moon has assured her that all of the matters in those boxes were completed. She asks you to have a look through the files and alert her to any issues with them. She says sometimes she took calls and responded to queries on behalf of Mr Moon if he was not in the office and he assisted her with her files as well. She stresses that at all times the files were his responsibility. a.

What breaches of the Code of Conduct and/or Migration Act has Ms Winslow committed?

Ahmed file 3.76 Mr Ahmed approached the firm to help him with assisting his brother-in-law and sister to gain permanent residency. There is an agreement on the file that the applications would be done for a fee of $9000. There is a receipt on the file, dated 12 April 2014, for $1000 and an undated handwritten receipt for $3000. There is a file note on the file showing Mr Ahmed was advised that

his brother-in-law’s skills assessment was successful, and Ms Winslow advised him to sit an IELTS test. The IELTS test was unsuccessful; Mr Moon advised that they should lodge another application for his sister. They agreed on the terms of payment and Mr Ahmed paid an additional $2000. This money was given to Mr Moon’s assistant with the promise that a receipt would follow in the post. There is no record that any receipt was sent. In September 2014 Mr Ahmed’s sister sat the IELTS test, but did not achieve enough points. She was advised by Mr Moon not to do the test again until her assessment was finalised. Mr Moon advised in December 2014 that the sister’s skills assessment was successful and she should sit the IELTS again. A further IELTS result was provided to Mr Moon in February 2015. There has been no further action on the file since that time. b.

What breaches of the Code of Conduct have Ms Winslow and/or Mr Moon committed regarding the Ahmed file? [page 168]

Jose file 3.77 Mr Jose was a Kenyan student in Australia whose visa was cancelled for non-attendance at his course. Mr Jose had been working part-time at a cafe while he was a student and had formed a relationship with someone while he was a student here. Mr Moon had advised him that he had to live with her for 12 months before he could apply to stay as a spouse. He advised him to apply for a protection visa so he could stay here for longer and live with his partner. He said that the protection visa would not be successful but he could apply for a spouse visa once he had lived with her for 12 months.

Mr Moon assisted Mr Jose with the paperwork for the protection visa, which was lodged eight months ago. He did not lodge a form 956 Advice by a migration agent/exempt person of providing immigration assistance. He told Mr Jose to come back again once he had lived with his partner for 12 months, so he could assist with the spouse visa. There are no copies of any letters on the file. There is no statement of services on the file or a contract. It is not clear if Mr Jose paid any fees for the service. There were really no grounds for the protection visa application. c. d.

What breaches of the Code of Conduct have Ms Winslow and/or Mr Moon committed regarding the Jose file? Provide advice to Ms Winslow as to how the partnership should have dealt with the files and what she should do with these files now.

Question D9: Jane Marple — Migration practice management 3.78 Miss Jane Marple has been practising as a registered migration agent for many years. She operates her own business in Perth, ‘Visa Mysteries’. Consider the following files.

Parker Pyne 3.79 Parker Pyne instructed Miss Marple to lodge an employer nomination scheme (subclass 186) visa application. This application was lodged on 16 June 2016. On 19 September 2016 Miss Marple received a letter from DIBP

informing her Parker Pyne’s application for an employer nomination scheme (subclass 186) visa had been refused due to the fact that he was not less than 50 years of age. [page 169] Miss Marple did not give the notice of decision concerning the application for an employer nomination scheme (subclass 186) visa to Parker Pyne until 5 December 2016. Parker Pyne missed his opportunity for appeal as he received the notification more than 21 days after the decision. Miss Marple states that she spoke to Miss Lemon, Parker Pyne’s assistant, and told her about the visa decision one week after she received it. Miss Marple received $6000 from Parker Pyne for her work but she does not have any accounts, bank statements, cheque butts, or any record indicating any payments made on behalf of Parker Pyne, as at that time Miss Marple did not have a bank account. Miss Marple has not issued invoices or bills to Parker Pyne. The client file has no file notes of conversations between Miss Marple and Parker Pyne, and no written correspondence between them. The client file contains only a draft copy of a skilled independent (subclass 189) visa application. a.

What breaches of the Code of Conduct has Miss Marple committed in relation to the Parker Pyne file?

Ariadne Oliver 3.80 Ariadne Oliver met with Miss Marple on 2 June 2016, asking her to assist with a partner migration application. She paid Miss Marple AU$2000 for her anticipated service. Approximately two months later, with little work done on the

application, Ariadne Oliver terminated the services of Miss Marple. She said that she would complain to MARA. Miss Marple decided she would retain Ms Oliver’s money until such time as the complaint was resolved. The client files do not contain a statement of services for the portion of the funds that Miss Marple was entitled to. Furthermore, Miss Marple let her subscription to LEGENDcom lapse last year as she found it hard to deal with a computer database. She has a subscription to the LexisNexis looseleaf service, but it has been six months since she has filed any updates. She does have a well-used Immigration Kit. b. c. d.

What breaches of the Code of Conduct has Miss Marple committed in relation to the Ariadne Oliver file? Are there any other breaches that Miss Marple has committed? Provide advice to Miss Marple as to what she should put in place to address the issues raised in these files.

Question D10: Fees 3.81 In what circumstances can a migration agent transfer the fees from the clients’ account to the office account? [page 170]

Question D11: Fees 3.82 You have just set up business as a migration agent and decide that you would like to specialise in student visas. One of the first issues you have to address is what kind of fees you will be charging your clients. You are not sure whether to charge a fixed fee or an hourly fee. Discuss how you will set your fee. In doing this, highlight the relevant clauses from the Code of Conduct that will impact upon

your planning.

Question D12: Ms Xu — Fees 3.83 Ms Xu approaches you about a particularly difficult and complex assignment. Ms Xu seeks initial specific advice from you but she does not yet commit to engage your services to act for her. For the specific advice you charge her $500/hour. You also offer to do the whole job (estimated to take 30 hours) for $4500. a. b.

Are these charges reasonable in accordance with cl 5.1 of the Code of Conduct? Are you required to provide Ms Xu with a ‘statement of services’? If no, why not? If yes, what form would that ‘statement of services’ take?

You contract with Ms Xu to undertake an assignment for a fixed fee of $4500 plus application fees plus disbursements. You estimate that the assignment will take approximately 35 hours. The assignment goes particularly smoothly and is completed in 28 hours. c. d.

Is your initial fee quote reasonable in the circumstances as stipulated in cl 5.1 of the Code of Conduct? Are you obliged to charge a lesser fee to Ms Xu?

Question D13: File practice management 3.84 What steps must be taken by an agent when an agent terminates the client/agent relationship? How long must a file be kept by the agent?

Question D14: Nguyen — File practice management 3.85

Mr Nguyen, a registered migration agent, submitted an

application for a business owner (residence) (subclass 890) visa on behalf of his client, Mr Stamos. By letter dated 8 June 2015, DIBP acknowledged receipt of the application and included a Checklist of Recommended Supporting Documentation for the visa category applied for. The Checklist indicated supporting documentation that had not been supplied including such fundamental documentation as certified copies of passports and marriage and birth certificates. Also lacking was basic information about the applicant’s business such as company registration and certified annual returns for the past two years. [page 171] Identify the relevant clauses of the Code of Conduct that have been breached by Mr Nguyen and why.

Question D15: Sharni Kaur — Priority processing, AAT 3.86 Sharni Kaur sponsored her husband, Gurdeep Singh, for a partner (subclass 309/100) visa. The application was refused by DIBP and she has lodged an application with the AAT for review of the refusal decision. The application with the AAT was lodged on 6 May 2017. Sharni suffers from severe epilepsy, which has deteriorated over the last few years. She is anxious for her review application to be heard soon, as she is desperate for support from her partner. As her migration agent, she has asked you to apply for priority processing. Her medical specialist has written a letter to be provided to the AAT in support of her application for priority processing. Below is an extract from her letter: Ms Kaur has been struggling with deteriorating epilepsy for a number of years. She was initially diagnosed at the age of 17, and while her condition was managed for a few years, it began to deteriorate in 2013 and I then began treating her. She suffers from daily seizures. As

a result, she is not permitted to drive and has been forced to cease work until her condition can be brought back under control. Due to the dangerous and unpredictable nature of her seizures, she is limited in social activities and struggles to undertake normal daily activities without the support of her partner, who is in India. It is my professional opinion that Ms Kaur’s condition has been adversely affected by her extended separation from her partner and the loss of physical and emotional support. I support her application for priority processing of her AAT application in light of her medical condition. While it is expected that her condition will improve in the future to the extent that she will be able to resume light duties at work, at the present time it is essential that she has her partner present.

Draft a submission in support of Ms Kaur’s application for priority processing using the information above.

Question D16: Ronaldo Esposito — Sponsorship and Sch 3 issues 3.87 Ronaldo Esposito arrived in Australia from Spain on a visitor (subclass 600) visa 12 months ago to visit his wife, Yolanda Spicer. His visitor visa was valid for three months. Yolanda Spicer has lived in Australia on a special category (subclass 444) visa for three years. They met while Yolanda was travelling in Spain in 2010 and rekindled their friendship on Facebook shortly after Yolanda relocated to Australia. She was feeling lonely without any family or friends around and Ronaldo had just escaped from a very unhealthy relationship, so they were both looking for companionship. They got talking again and met for [page 172] a holiday in New Zealand, where they married in a small ceremony attended by Yolanda’s family and friends. Ronaldo had to return to Spain but shortly after he lodged a tourist visa application so that they could be reunited. Eleven months ago, Ronaldo lodged an application for a partner (subclass 820/801) visa with his wife Yolanda as his sponsor. At that time, his tourist visa was valid for

another two months. It has been almost a year since Ronaldo lodged his application and he hasn’t received a decision yet. Even though English is his second language and he finds Australian migration law very confusing, Ronaldo decided to save money by lodging the application without the assistance of a registered migration agent. He has made a number of requests for updates on processing and has been advised that he will be contacted if anything further is required. Ronaldo has remained in Australia on a bridging A visa throughout this time since his visitor visa expired and has assumed that there are no major issues with his application as he hasn’t heard anything to the contrary. However, he has now received a letter requesting evidence that Yolanda is an Australian citizen or permanent resident or an eligible New Zealand citizen. After reading this email, Yolanda realised that she is not eligible to be a sponsor. They have just bought a house together and Yolanda has been diagnosed with early stage bowel cancer and will be undergoing an operation and chemotherapy in the coming weeks and months. Ronaldo is extremely stressed about whether he can apply for another visa as he is desperate to remain in Australia to care for Yolanda. They cannot afford a full-time carer for her and are struggling to meet the mortgage repayments, because Yolanda is not well enough to work. They come to your office to seek your advice. There is no evidence to suggest that Ronaldo has breached any of the conditions that have applied to his substantive visa or bridging visa or that he intends to breach any conditions on any subsequent visas. a. b. c.

Why is Yolanda ineligible to be a sponsor? What visa is Ronaldo eligible to apply for? Is he eligible to apply for this visa even though he holds a bridging visa? Draft a submission to address Sch 3 issues.

Question D17: Ernest Hemingwood — Partner

visas, Sch 3 issues and compelling reasons 3.88 Ernest Hemingwood is a citizen of Ireland, who came to Australia on a student (subclass 573) visa on 19 October 2008. He loved Australia so much that he was desperate to stay. His friend advised him to apply for a protection visa, which he did on 21 December 2009. However, this application was quickly refused as there was no basis to his claims. After receiving the refusal decision, Ernest was too distraught to study so he stopped attending classes. His student visa was cancelled on 31 March 2010 but he remained in Australia. [page 173] Ernest met the love of his life, Evelyn Gardnin, through a mutual friend in April 2012. They soon began a relationship and were married in October 2012. Their daughter, Aprilia, was born on 23 December 2013. As time went by, Ernest became more concerned about the prospect of being discovered by DIBP and being separated from his wife and daughter. As Evelyn is an Australian citizen, they saved up the money for the application fee and lodged a partner visa application on 24 September 2015 without the assistance of a migration agent. Unfortunately, this application was refused on 16 May 2017 for failure to demonstrate compelling reasons for waiver of Sch 3 criteria. Ernest lodged an application to the AAT for review of the decision and then came to you to seek advice. At the appointment, he told you that Evelyn suffers from chronic medical conditions including ulcerative colitis, diabetes and severe arthritis. She struggles to undertake daily activities and needs his constant support. She is about to start a new treatment which has serious side effects including nausea and heart complaints, but she

has no choice because her current treatment is not working. He is worried about how she will cope if he has to leave Australia, particularly as she will need to care for their young daughter. Her treating doctor, Dr Seuss, has provided the following medical report: I have been treating Ms Gardnin for five years and have noticed a significant deterioration of her condition over the last 18 months. She has been required to cease working and is failing to respond to current treatment. In my professional opinion, the stress associated with her husband’s uncertain immigration status has compounded her condition. She is highly stressed about the prospect of being separated from her husband and being required to raise Aprilia on her own. I strongly believe that Ms Gardnin’s condition will continue to worsen if her husband is required to leave Australia, in spite of any new treatment, due to the additional stress and anxiety that this will cause. Ernest asks you to represent him at the AAT.

Draft a submission in support of Ernest’s application, which addresses compelling reasons for waiver of Sch 3 criteria.

[page 175]

Chapter 4

Suggested Answers to Scenario Discussion Questions Suggested answers to questions on Subject A: Australian migration law Question A1: Definition of terms 4.1 Listed below are the places where you would find the definitions of the various terms. a.

Commonwealth country

Migration Regulations reg 1.03

b.

Close relative

Migration Regulations reg 1.03

c.

Compelling need to work

Migration Regulations reg 1.08

d.

Balance of family test

Migration Regulations reg 1.05

e.

Orphan relative

Migration Regulations reg 1.14

f.

Dependent

Migration Regulations reg 1.05A

g.

Unauthorised maritime arrival

Migration Act s 5AA

h.

Aged parent

Migration Regulations reg 1.03

i.

Immigration clearance

Migration Act s 172

j.

Working day

Migration Act s 5(1)

k.

Attendance notice

Migration Act s 268BD

l.

Spouse

Migration Act s 5F; Migration Regulations reg 1.15A

m.

Main business

Migration Regulations reg 1.11

n.

Protection visa

Migration Act ss 5(1) and 35A

o.

Refugee

Migration Act s 5H

p.

Work

Migration Regulations reg 1.03; Migration Act s 160(3)

q.

Vocational English

Migration Regulations reg 1.15B

r.

Functional English

Migration Act s 5(2); Migration Regulations reg 5.17

s.

Prescribed qualifications Migration Agents Regulations reg 5

[page 176] t.

Prescribed institution

Migration Agents Regulations reg 3

u.

Migrating employee

Migration Agents Regulations reg 3A

v.

Non-disclosable information

Migration Act s 5(1)

w.

High visa refusal rate

Migration Act s 306AC(2)

x.

Eligible non-citizen

Migration Act s 72; Migration Regulations reg 2.20

y.

Complying investment

Migration Regulations reg 5.19B

z.

Crime

Migration Act s 5(1)

Question A2: Johnny Begood Suggested answers are as follows.

4.2 a.

b.

Yes, Johnny can make an oral application for a visitor (Class FA, subclass 600) visa in the tourist stream from within Australia if he holds a visitor (Class FA) visa: see Sch 1 Item 1236(3)(3). If his visitor visa has already expired, then he will not be able to make the oral application. He must make an application separately using form 1419 (Sch 1 Item 1236(1)(a) and IMMI 17/021), and his eligibility for grant will be dependent on whether he also meets Sch 3 criteria.

Question A3: Johnny El-Kreiky 4.3 The protection visa application is invalid pursuant to reg 2.07(4). Johnny has an option to re-apply for a protection visa. He may be better advised, however, to seek a waiver of the 8503 condition pursuant to s 41(2)(a) of the Act and reg 2.05(4) provided there are compelling and compassionate circumstances which have developed since the visa grant and over which he had no control and that resulted in a major change to his circumstances. If he succeeds in obtaining a waiver, he can apply for a partner visa onshore as he is not s 48 barred. If he cannot obtain a waiver, he would be best advised to go offshore and apply for a partner visa from offshore. Reapplication for a protection visa is not recommended unless he has grounds to support such an application.

Question A4: Virginia Woolf Suggested answers are as follows.

4.4 a.

b.

Virginia is unable to lodge a valid visa application because she used the wrong form: the correct form for the visitor (Class FA, subclass 600) visa in the tourist stream is 1419 (Migration Regulations reg 2.07(3) and Sch 1 Item 1236(1), and IMMI 17/021); plus the fact she did not have enough money to pay the correct visa application charge (Migration Act s 46(1)(ba)). Virginia is eligible for a bridging D visa (Sch 2 Pt 040.211(b)) valid for five working days (Sch 2 Pt 040.511). The bridging D visa is granted without permission to work (Sch 2 Pt 040.611). [page 177]

c.

Within the five working days after grant of the bridging D visa, Virginia must return to Immigration and make a valid application for a substantive visa (Sch 2 Pt 040.213).

Question A5: Jason, new registered migration agent 4.5 The marketing approach is unacceptable. In terms of potential breaches under the Migration Agents Code of Conduct, see cls 2.10, 2.11, 2.12, 2.14, 2.23 and possibly 2.14A. For example, cl 2.10(c) provides that a registered migration agent must not guarantee the success of an application. Clause 2.11 requires the agent’s MARN number to be used in the advertisement, which has not been done in this case. Furthermore, Jason advertised himself as an ‘Australian Government Approved Specialist Agent’; however, cls 2.12 and 2.14 stipulate that an agent cannot advertise that he or she has a relationship with the Department, the Minister or its officers, including in relation to obtaining priority processing or special treatment. This question does not call for consideration of potential breaches under other Commonwealth legislation, for example, the Australian Competition and Consumer Act 2010 or the Criminal Code.

Question A6: Bilbar Suggested answers are as follows.

4.6 a.

Bilbar has lodged an invalid application under s 46(1)(ba) and (c). Accordingly no valid application has been made for the Minister to consider (see s 47(3)). The applicant has obtained an 8503 waiver in this instance and although the applicant’s substantive visa has long expired, subclass 820 permits the applicant to apply for a spouse visa provided the Minister is satisfied that there are compelling reasons for not applying

b.

Sch 3 criteria: 820.211(2)(d). In this case there is a potential compelling argument in relation to the Australian child and the error of the Immigration officer. Accordingly, the applicant could lodge a new, valid application for a subclass 820/801 partner visa. Bilbar will have breached cls 2.1(a) and (b), 2.3, 2.3A, 2.4, 2.20(a) and 2.23 of the Code of Conduct and may be subject to disciplinary action by OMARA, which may include a caution or suspension.

Question A7: Unregistered agent Suggested answers are as follows.

4.7 a.

i.

ii.

The Migration Act s 280(1) says a person who is not a registered migration agent must not give immigration assistance. This is a strict liability offence (s 280(1A)) for which the penalty is 60 penalty units. The Migration Act s 281(1) prohibits a person who is not a registered migration agent from asking for, or receiving, a fee or other reward for giving immigration assistance. Penalty is 10 years’ imprisonment. [page 178]

iii. The Migration Act s 281(2) prohibits a person from asking for, or receiving, a fee or other reward on behalf of another person, who is not a registered migration agent, for giving immigration assistance. Penalty is 10 years’ imprisonment. iv. The Migration Act s 283 prohibits a person who is not registered from representing to others that he or she is a registered migration agent. Penalty is two years’

b.

imprisonment. v. The Migration Act and Regulations do not have extraterritorial effect, but there are moves to make offshore migration agents also subject to provisions applicable to Australian migration agents. If an ‘infringement notice’ is served on a person who has committed an offence under s 280(1) of the Migration Act (which deals with non-registered persons giving immigration assistance), the person must pay the penalty contained within the notice within 28 days (unless the notice is withdrawn within this time). Once the penalty has been paid, the person shall be discharged of liabilities arising from that alleged offence and no conviction shall be recorded against the person in relation to that alleged offence. If payment is not made, the matter will be dealt with by a court. (See Migration Agents Regulations regs 3K(1) and 3M.)

Question A8: Registered migration agent pitfalls Suggested answers are as follows.

4.8 a.

b.

c.

The Migration Act s 312 lists the events which must be reported to MARA, which include at s 312(1)(e) that a migration agent has been convicted under a law of the Commonwealth or of a state or territory. Penalty is 100 penalty units. The Migration Act s 313 says a client must be given a statement of services within 28 days after a final decision has been made on an application to which the charge was related (see also Migration Agents Regulations reg 7I), otherwise the client may seek to recover the entire amount as a debt from the migration agent (see also Code of Conduct cl 5.5). The Migration Act s 292B(1) says that an applicant must not be registered unless he or she holds appropriate professional

d.

e.

indemnity insurance. The Migration Agents Regulations reg 6B prescribes professional indemnity insurance (at the time of publication) for at least $250,000. The Migration Act s 334(1) and (2) provides a penalty of two years’ imprisonment if a person makes a false statement about his or her actions, or about another person’s actions, to affect the outcome of a decision under the Act. It is also a breach of cls 2.14A and 2.23 of the Code of Conduct. The Migration Act s 240 provides a penalty of $210,000 fine or 10 years’ imprisonment or both if a person is found guilty of arranging a marriage between other persons with the intention of assisting one of the persons to obtain a visa on the grounds of that marriage. Note the defence against the offence in s 240(3). [page 179]

f.

g.

h.

i.

The Migration Act s 314 prescribes a Code of Conduct for migration agents, and the Code, at cls 1.6 and 1.7, provides for administrative sanctions for breaches of the code. Clause 2.12 of the Code requires an agent not to use any such wording in advertisements. Clause 2.17 of the Code of Conduct stipulates an agent should not encourage a client in the lodging of vexatious or grossly unfounded applications. Clauses 3.1 and 3.2 of the Code of Conduct stipulate that an agent must preserve confidentiality of clients, and not disclose confidential information about a client. Clause 7.1 of the Code of Conduct states that an agent must keep separate accounts for the agent’s general operating account and a clients’ account (note the phrase ‘clients’ account’).

j.

Clause 6.3 of the Code of Conduct stipulates an agent must respond to a MARA request for a copy of a client’s file within a reasonable period as specified by the Authority. k. Clause 11.4 of the Code of Conduct stipulates an agent who has a website must provide a link to the Code of Conduct at MARA’s website. l. Clause 2.1A(c) of the Code of Conduct says an agent must not be, or intend to be, involved with a client in a business activity that is relevant to the assessment of a visa application or cancellation, and that the agent must, as soon as he or she is aware of the conflict of interest but within 14 days, advise the client and terminate his or her services (cl 2.1B), and advise the Department that he or she no longer acts for that client (cl 2.1D). m. Unless the agent is giving immigration assistance in a prescribed capacity then if the agent has a 90% refusal rate within a prescribed six-month period for protection visas, then the agent has a ‘high visa refusal rate’ and is said to have engaged in ‘vexatious activities’, and will be subject to being referred by the Minister to MARA for disciplinary action (Migration Act s 306AC). Other prescribed matters to be considered are outlined in reg 7D of the Migration Agents Regulations. n. The deceased agent’s legal personal representative must respond to a MARA request for the deceased agent’s files by making copies and providing the files to MARA within a period and in a manner as specified in the request (s 306F(2)). Failure to comply carries a penalty of 60 penalty units (s 306H(1)).

Question A9: Barry Barker 4.9

Suggested answers are as follows.

a.

This question raises a number of issues. Barry is not registered as a migration agent as yet, so he is unable to provide ‘immigration assistance’. The definition of immigration assistance is at s 276 of the Migration Act: 276. (1) For the purposes of this Part, a person gives immigration assistance if the person uses, or purports to use, knowledge of, [page 180] or experience in, migration procedure to assist a visa applicant or cancellation review applicant by: (a) preparing, or helping to prepare, the visa application or cancellation review application; or (b) advising the visa applicant or cancellation review applicant about the visa application or cancellation review application; or (c) preparing for proceedings before a court or review authority in relation to the visa application or cancellation review application; or (d) representing the visa applicant or cancellation review applicant in proceedings before a court or review authority in relation to the visa application or cancellation review application.

… (3) Despite subsections (1), (2) and (2A), a person does not give immigration assistance if he or she merely: (a) does clerical work to prepare (or help prepare) an application or other document; or (b) provides translation or interpretation services to help prepare an application or other document; or (c) advises another person that the other person must apply for a visa; or (d) passes on to another person information produced by a third person, without giving substantial comment on or explanation of the information.

Can Barry’s comments be considered to be advising in respect of a ‘visa application’? In this case the application has been lodged; however, as this is an ongoing matter the comments could fall within the definition. If Barry had merely read out the letter without making any substantial comments it would not have been immigration assistance (s 276(3)). Alternatively, if he had first sought advice from a migration agent in the firm before he commented on the matter, then he would fall within the exceptions mentioned above. However, in this case his comments

could be regarded as ‘substantial’ or an explanation of the information in the letter. His parting suggestion that he will confirm his comments with a migration agent is probably not sufficient. The question also raises issues in respect of confidentiality (cl 3.1 of the Code of Conduct). We do not know if Cynthia had given permission to give information about her case to John. Barry should not assume this and he should have checked the file or with the client. b. Barry could be charged under s 280 of the Migration Act and fined up to 60 penalty units. If Barry is receiving a fee or other reward from the client there would be [page 181] other ramifications under s 281(1) of the Migration Act. Barry’s statement that ‘he knows all about migration law’ could amount to a representation that he was a migration agent and therefore be in breach of s 283. Barry’s conduct could also possibly affect Barry’s ability to register as a migration agent. If Barry’s conduct is discovered and he is charged, MARA may decide he is not a person who is fit and proper or a person of integrity (see s 290). Any breaches of the Code of Conduct, even though he is not registered and not bound by the Code under s 314, may also impact upon him being regarded as fit and proper.

Question A10: Trueblue Visas and Pronto Visas Shifty 4.10 We do not know from the fact scenario whether Shifty is a registered migration agent. As Shifty is overseas he is not liable to be

charged with any offences under the Migration Act regarding the provision of immigration assistance as a non-registered agent. Claudette would be advised to investigate whether there are any options for pursuing Shifty for his actions in France. If Shifty is a registered migration agent, s 314(2) of the Migration Act provides that all agents must comply with the Code of Conduct. Claudette could make a complaint about him to MARA. We do not know what advice was given to Pierre. However, cl 2.8 of the Code of Conduct requires an agent to write to the client setting out instructions and cl 2.17 requires an agent not to encourage an application that ‘is vexatious or grossly unfounded’ and to obtain a client’s instructions in writing if they wish to proceed despite that advice. It would be advisable to obtain from Shifty a copy of the file and check what, if any, advice was given to Pierre. If no advice was given as to the futility of the application, consider what breaches of the Code could have been committed here including: • •

•

Clause 2.1 — Duty to act competently, diligently and fairly. Clause 2.3 — A registered migration agent’s professionalism must be reflected in a sound working knowledge of the Migration Act and Migration Regulations, and other legislation relating to migration procedure, and a capacity to provide accurate and timely advice. Clause 2.6 — To the extent that a registered migration agent must take account of objective criteria to make an application under the Migration Act or Migration Regulations, he or she must be frank and candid about the prospects of success when assessing a client’s request for assistance in preparing a case or making an application under the Migration Act or Migration Regulations. [page 182]

•

•

Clause 2.7 — A registered migration agent who is asked by a client to give his or her opinion about the probability of a successful outcome for the client’s application: a. must give the advice, in writing, within a reasonable time; and b. may also give the advice orally to the extent that the oral advice is the same as the written advice; and must not hold out unsubstantiated or unjustified prospects of success when advising clients (orally or in writing) on applications under the Migration Act or Migration Regulations. Clause 2.23 — A registered migration agent must take all reasonable steps to maintain the reputation and integrity of the migration advice profession.

Terry 4.11 Do the comments Terry made to Claudette constitute immigration assistance? According to s 280 of the Migration Act only registered migration agents may give immigration assistance. A breach of this provision can lead to a fine of up to $12,600. ‘Immigration assistance’ is defined in s 276. Do Terry’s comments amount to ‘advice’ under s 276(1)(b)? It could be argued that as the comment was not directly made to Pierre, Terry was not providing advice to a visa applicant. However, this could be too narrow a construction of the section. The other argument to consider is that it may fall within the exception as set out under s 276(3)(c) where he merely ‘advises another person that the other person must apply for a visa’. However, as he is quite specific in the visa type, his advice may cross the line.

Selene

4.12 Selene is a migration agent so she must abide by the Code of Conduct (s 314 of the Migration Act). As such she has responsibilities in respect of the conduct of her staff in the office as set out in Pt 8 of the Code including: •

• •

•

Clause 8.1 — A registered migration agent has a duty to exercise effective control of his or her office for the purpose of giving immigration advice and assistance. Clause 8.2 — A registered migration agent must properly supervise the work carried out by staff for the agent. Clause 8.3 — All immigration assistance must be given by a registered migration agent unless the assistance is permitted under s 280 of the Migration Act. Clause 8.4 — A registered migration agent must make all employees, including those not involved in giving immigration assistance (for example, receptionists and typists), familiar with the Code, for example by: (a) displaying the Code prominently in the agent’s office; [page 183]

•

(b) establishing procedures to ensure that employees become familiar with the Code including supplying employees with copies of the Code. Clause 8.5 — A registered migration agent must ensure that his or her employees are of good character and act consistently with the Code in the course of their employment.

It could be argued that Selene has breached the Code by not exercising effective control over Terry in his conduct in the office.

Question A11: Registered migration agent

4.13 a.

b.

Suggested answers are as follows. Clause 2.7 of the Code of Conduct states that if asked for an opinion about the probability of success an agent must not hold out unsubstantiated or unjustified prospects of success. Clause 2.6 of the Code states that an agent must provide frank and candid advice about prospects of success. Yes, an agent needs to adhere to other laws beyond the Migration Agents Code of Conduct, that is, those that are contained in statutory enactments and also in common law, for example, tort and contract.

Question A12: Chris 4.14 a.

b.

c.

Suggested answers are as follows. An agent should always charge a reasonable fee in the circumstances (Code of Conduct cl 5.1). Therefore, accepting fees greatly above one’s normal fees should be avoided. Fees charged should be based on factors such as the work involved, the complexity of the case and the experience of the agent. The fact that the client has been refused a visa before may mean a higher than normal fee would be ‘reasonable’; however, it could be argued that it would not be reasonable to charge twice the industry average. However, this would depend on the circumstances of the case and its complexities. In this circumstance, Chris should set his fee based on Pt 5 of the Code of Conduct. An example would be to determine his charge-out rate per hour taking into account the factors mentioned above and determining the number of hours it would take to complete the job. Remember that the fees have to be ‘reasonable’ in the circumstances. If Chris charges a fee that is much higher than his usual fees, he may be in breach of cl 5.1 of the Code of Conduct. This could result in a MARA investigation if a complaint is made,

d.

and a possible sanction if he is found to be in breach. The stakeholders in fee setting, particularly when excessive fees are involved, are the agent, other agents, MARA, the DIBP and the community. The interest of the community is represented by consumer bodies, government consumer affairs agencies and possibly the ACCC. The DIBP and other agents have an interest in ensuring the charging of grossly excessive fees does not occur [page 184] as this tarnishes the image of the migration advice profession. Community groups are interested to ensure that the vulnerable in the community are not exploited by unscrupulous agents.

Question A13: Scarlett O’Hara 4.15 a.

b.

Suggested answers are as follows. The application would have been invalidly made because the application can only be made in Australia if Scarlett herself is in Australia (Migration Regulations Sch 1 Items 1128(3)(a), 1128(3)(aa), IMMI 17/031). The best option would be for Scarlett to lodge her Irish passport with the Australian High Commission at London for the resident return visa (the visa application can be lodged outside Australia, and the visa application charge is the same, and she can meanwhile still use her British passport for her travels) (Migration Regulations Sch 1 Items 1128(2), 1128(3) (a), IMMI 17/031).

Question A14: Simon White 4.16 a.

b.

c.

Suggested answers are as follows. As Simon was granted permanent residence after 1 July 2007, he comes under the Australian Citizenship Act 2007. The residence requirement requires four years’ lawful residence in Australia but it does not have to be continuous provided the break is no more than 12 months, with no more than three months in the required 12 months of permanent residence. Three of the past four years’ temporary residence can be taken into account. As he has been in Australia on a 457 visa since 25 June 2013 and obtained permanent residence on 12 July 2016, he already meets the residence requirement for conferral of Australian citizenship. However, on 15 June 2017, the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 was introduced into Parliament. Among the proposed changes to the citizenship regime, an applicant will need to have been present in Australia as a permanent resident for four years. Furthermore, the applicant must not have spent more than 365 days outside Australia in that four-year period as a permanent resident. If these proposed changes are passed, Simon would not be eligible for citizenship until 12 July 2020 at the earliest. Simon cannot count the period on a student visa between 2010 and 2012 as that was more than four years ago. Furthermore, if the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 is passed, only periods as a permanent resident may be able to count towards the residence requirement. If Simon decided that he would stay in the UK for six months

and even longer from December 2017, the effect could be significant. It would depend on when he lodged his application for citizenship, and we are not given those [page 185] facts here. If he spends more than three months overseas prior to filing his application, without meeting any of the exceptions, then his application is likely to fail, as he will not meet the residence requirements: see s 22(1A) of the Australian Citizenship Act 2007. If he has already lodged his application for citizenship and yet lives in the UK for a significant period of time during the processing, the application may be deferred or rejected due to a failure to meet the intention to reside requirements: see s 21(2)(g) of the Australian Citizenship Act 2007.

Question A15: Amanda Yonkers 4.17 a.

b.

Suggested answers are as follows. While Amanda is probably eligible to apply as a former resident (that is, special eligibility (Class CB, subclass 151) former resident), it would be more beneficial and easier to have her apply for citizenship. Amanda could apply for citizenship by descent under the Citizenship Act, as there is no age barrier, and it provides an immediate pathway that does not require her to meet the medical requirements. The fact that Amanda’s mother had an Australian passport would indicate she was an Australian citizen and Amanda would therefore be eligible for Australian citizenship by descent in accordance with s 16(3) of the Australian

Citizenship Act 2007. She will need to provide evidence of her birth and her mother’s birth, and evidence that her mother was an Australian citizen on 26 January 1949 (her passport and American residence card should provide this evidence). Amanda will need to show she is of good character with a police clearance certificate from every country she has lived in since the age of 16: see s 16(3)(c) of the Australian Citizenship Act 2007.

Question A16: Pierre Le Bon 4.18 a.

Suggested answers are as follows. As Pierre’s permanent residence was granted after 1 July 2007, he comes under the Australian Citizenship Act 2007. Under these provisions, Pierre can count whatever part of the period he spent in Australia on a working holiday visa between 2013 and 2014 (providing it is within the four years of his application for citizenship), and the two years he spent in Australia between July 2014 and July 2016 on a provisional visa, as he was only outside Australia for six months (January 2014 to July 2014) during this period. Also he can apply for discretion under s 22(9), to treat the time he is spending overseas as time spent in Australia, as he is the spouse of an Australian citizen and can demonstrate close and continuing ties with Australia (house and employment). He would therefore be eligible to apply for citizenship after 2 July 2017 (s 22(9)(a)). However, on 15 June 2017, the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and [page 186]

b.

Other Measures) Bill 2017 was introduced into Parliament. Among the proposed changes to the citizenship regime, an applicant will need to have been present in Australia as a permanent resident for four years. Furthermore, the applicant must not have spent more than 365 days outside Australia in that four-year period as a permanent resident. If these proposed changes are passed, Pierre would not be eligible to apply for citizenship until 2 July 2020, provided that he did not spend more than 365 days outside Australia. If he spent more than 365 days outside Australia, he may still be able to apply for an exemption of the residence requirement under s 22(9). The proposed changes to the s 22(9) discretion include a requirement that the person must have spent at least 365 days in Australia during the four years in which they have been a permanent resident in addition to demonstrating that they are the spouse or de facto partner of an Australian citizen and that they maintained a close and continuing association with Australia. If permanent residence was granted before 1 July 2007, then Pierre could have come under the transitional arrangements under the Australian Citizenship (Transitional and Consequentials) Act 2007. However, these transitional arrangements ceased on 1 July 2010, hence would not be of any benefit in his current situation.

Question A17: John Doh 4.19 a.

Suggested answers are as follows. Section 21 of the Australian Citizenship Act 2007 deals with eligibility for citizenship by conferral. Section 22 sets out the residence requirements with s 22(1)(a) and (b), requiring that a person must have been present in Australia for the period of four years immediately before the application is

b.

made and not have been present, at any time during that period, as an unlawful non-citizen. Note, however, that the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017, which was introduced into Parliament on 15 June 2017, includes proposed changes to the residence requirement. As John was an unlawful non-citizen from 3 July 2011 to 6 July 2011 he would not be eligible to apply for Australian citizenship until at least four years after 6 July 2011 (s 22(1) (b)). However, as he was only granted the permanent 887 visa on 1 July 2016, he will not be eligible to apply for citizenship until 1 July 2017, provided he is not going to be away from Australia for more than 90 days between 1 July 2016 and 1 July 2017. The six weeks he spent outside Australia between 4 July 2014 and 1 July 2016 would not affect his eligibility as he is allowed to be away for up to 12 months in the four years prior to his application for citizenship. However, on 15 June 2017, the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 was introduced into Parliament. Among the proposed [page 187] changes to the citizenship regime, an applicant will need to have been present in Australia as a permanent resident for four years. Furthermore, the applicant must not have spent more than 365 days outside Australia in that four-year period as a permanent resident. If the proposed changes are passed, John would not be eligible for citizenship until 1 July 2019.

Question A18: Ivy Nguyen 4.20 a.

b.

c.

Suggested answers are as follows. Section 21(4) of the Australian Citizenship Act 2007 exempts people aged 60 or over and people who have a permanent loss (or substantial impairment) of hearing, speech or sight at the time of application from the requirement that they have a basic knowledge of the English language. Section 21(5) of the Act exempts a person aged under 18 from the requirements generally. Such people are also exempt from the requirement that they have an adequate knowledge of the responsibilities and privileges of Australian citizenship. Section 21(5) exempts a person aged under 18 from the normal residence requirements, as long as the person is an Australian permanent resident. Therefore Ivy is eligible to apply for Australian citizenship now. On 15 June 2017, the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 was introduced into Parliament. It does not appear that the proposed changes affect the exemption for a person under 18.

Question A19: Ricardo Taco 4.21 Ricardo must satisfy the requirements of the Australian Citizenship Act 2007 as he was granted permanent residence after 1 July 2007. Section 22(1) of the Act requires Ricardo to have lived in Australia for four years before applying as a lawful resident. Ricardo has lived in Australia since 15 January 2010, which is more than four years. However, s 22(1)(c) requires that a person has been present in

Australia as a permanent resident for the period of 12 months immediately before the application was made. Ricardo will have been an Australian permanent resident for one year on 2 July 2016. However, he has been outside Australia for all but one month since he was granted permanent residency. However, where the person is the de facto partner of an Australian citizen at the time the person made the application, s 22(9) allows the Minister to treat a period as a period during which a person was present in Australia as a permanent resident if: 1. 2. 3. 4.

The person was a de facto partner of that Australian citizen during that period; The person was not present in Australia during the period; The person was a permanent resident during that period; The Minister is satisfied that the person had a close and continuing association with Australia during such period. [page 188]

Section 24(5) of the Act states that the Minister must not approve a person outside Australia to become an Australian citizen, unless the Minister granted an exemption from the residence requirements under s 22(9) of the Act. This is a discretionary decision by the Minister and requires him or her to address s 22(9) provisions of the Act. In addition to the close and continuing association requirements in s 22(9)(d) there is also a general requirement under s 21(2)(g) to demonstrate a close and continuing association with Australia overall. Therefore it may be possible for Ricardo to obtain a waiver of the requirement in s 22(1)(c) of the Act if he satisfies certain s 22(9) provisions of the Act. If he can obtain a waiver, he is eligible to apply for citizenship from 2 July 2016. However, on 15 June 2017, the Australian Citizenship Legislation

Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 was introduced into Parliament. Among the proposed changes to the citizenship regime, an applicant will need to have been present in Australia as a permanent resident for four years. Furthermore, the applicant must not have spent more than 365 days outside Australia in that four-year period as a permanent resident. The proposed changes to the s 22(9) discretion include a requirement that the person must have spent at least 365 days in Australia during the four years in which they have been a permanent resident in addition to demonstrating that they are the spouse or de facto partner of an Australian citizen and they maintained a close and continuing association with Australia. If the proposed changes are passed, Ricardo will not be eligible to apply for citizenship until 2 July 2019, provided that he has spent at least 365 days in Australia in that period.

Question A20: June and Jackie Chan 4.22 a.

Suggested answers are as follows. Under s 22 of the Australian Citizenship Act 2007, a person needs to be present in Australia for four years immediately before the application for citizenship. However, the Act only requires the person to be present in Australia as a permanent resident for the last 12 months of that four years. In June’s case, even though she has lived in Australia for five years since her marriage to Jackie, the period was only as a temporary resident, probably on an 820 visa. Therefore, she will need to remain in Australia for another 11 months before becoming eligible to apply for citizenship. However, she will be permitted to travel outside Australia for up to three months during this last 12 months (see s 22(1B)). The fact her husband Jackie runs a production house in Brisbane and employs five full-time staff would not help, as

the provision that periods overseas may be counted towards the period for citizenship qualification if participating in a business activity beneficial to Australia, available under [page 189] the old Australian Citizenship Act 1948, has been removed from the new Act. However, if June is required to accompany her husband overseas, the business activities could be sufficient to meet the ‘close and continuing association’ requirements of s 22(9). Apart from residence requirements, June will also need to: • meet the character requirements; • have a basic knowledge of the English language; and • understand the responsibilities and privileges of being an Australian citizen. However, on 15 June 2017, the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 was introduced into Parliament. Among the proposed changes to the citizenship regime, an applicant will need to have been present in Australia as a permanent resident for four years. Furthermore, the applicant must not have spent more than 365 days outside Australia in that four-year period as a permanent resident. If these changes are passed, June will need to wait for another three years and 11 months before she can apply for citizenship provided that she has spent no more than 365 days outside Australia in that four-year period. Furthermore, if June wishes to apply for an exemption from the general residence requirement on the basis of her relationship with her husband and her close and continuing association to Australia, the proposed changes to the s 22(9)

b.

discretion include a requirement that the person must have spent at least 365 days in Australia during the four years in which they have been a permanent resident, in addition to demonstrating that they are the spouse or de facto partner of an Australian citizen and they maintained a close and continuing association with Australia. June will be required to undertake the citizenship test (s 23A). Under the proposed legislative amendment in the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017, she will also need to have competent English, and will be allowed up to three attempts at the citizenship test.

Question A21: Maria and Gary Callas 4.23 a.

Suggested answers are as follows. A child born overseas, whose parent is an Australian citizen at the time of birth, is eligible to be registered under birth by descent (s 16(2) of the Australian Citizenship Act 2007). In this case, however, the birth certificate shows that the child Jamilla was born to Margie Simpson, rather than to Maria. Margie, as a US citizen, has no entitlement to register the baby Jamilla by descent for Australian citizenship. Jamilla obtained a US passport but we don’t know whether this is because of her father or her false mother. Under US nationality law, Jamilla is understood to have the right to a US passport. [page 190] Maria would have to establish that Jamilla is in fact her

b.

c.

daughter. This may be able to be proven by a DNA test. The baby’s name would follow the father if the certificate wasn’t changed. There may be serious repercussions to this process for Maria, and for Jamilla. For example, the birth certificate may need to be re-issued with different parent particulars, and the misrepresentation to the hospital, US passport application, etc, may constitute various offences under US law. Presumably the mother will not be travelling back to the US. If Jamilla’s application for Australian citizenship is refused, she may be able to apply for review to the AAT (s 52 of the Australian Citizenship Act 2007). If her ETA has ceased, she can obtain a bridging E (subclass 050) visa until the matter is resolved (Migration Regulations Sch 2 Pts 050.212(4AAA)(b) and 050.511D).

Question A22: Helen and John 4.24 a.

Suggested answers are as follows. John is not eligible to apply for permanent residence until Helen is able to sponsor him. Helen was an Australian citizen when she married John (a US citizen); however, when she became a US citizen in March 2002 she lost her citizenship under s 17 of the Australian Citizenship Act 1948 which leads to the automatic loss of Australian citizenship on acquisition of another. While this provision was repealed in April 2002, any losses of Australian citizenship preceding this date were still held to be valid. Under s 29(3)(a)(i) of the Australian Citizenship Act 2007, Helen can apply to the Minister for resumption of Australian citizenship. She needs to be of good character (s 29(3)(b)). She would then be eligible to sponsor John for permanent residence on spouse grounds. However, John and Helen need to maintain a genuine and

b.

continuing relationship in accordance with the definition of spouse in reg 1.15A of the Migration Regulations and s 5CB of the Migration Act. The regulation looks at the exclusivity of the relationship and it will depend on whether Helen and John remain in a committed spouse relationship. The existence of an intimate relationship between John and his lady friend Lily would certainly imply a significant relationship outside John’s marriage to Helen, however, it is a question of fact. The fact that Lily is pregnant with John’s child suggests that he has a significant relationship outside of his marriage to Helen. This will make it harder for John to demonstrate that he is in an exclusive and committed spouse relationship with Helen to satisfy reg 1.15A and s 5CB.

Question A23: Bill and Kylie 4.25 The child is an Australian citizen under s 12(1)(b) of the Australian Citizenship Act 2007, as the child has been ordinarily resident in Australia [page 191] throughout the period of 10 years beginning on the day the child is born. She was eligible to acquire citizenship if she was ordinarily resident in Australia throughout the period of 10 years beginning on the day she was born (s 12(1)(b)). Ordinarily resident is defined under s 3. Policy states that in considering whether a person is ordinarily resident in Australia, regard is to be had to factors such as: • •

the length of physical residence in Australia; whether the applicant considered that their home was in

• •

Australia for the first 10 years of their life; the nature and extent of any periods of absence from Australia; and the nature and extent of ties with Australia such as presence of family, attendance at school, club memberships.

(See Australian Citizenship Instructions Chapter 2 — Automatic Acquisition of Citizenship.) However, under the Australian Citizenship Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017, it is proposed that s 12 will be substantially amended to exclude a child born in Australia to parents who were unlawful non-citizens at any time during the 10 years following the child’s birth.

Question A24: Karen 4.26 The following information should be set out in a file note format. As Karen was born after 1986 and neither parent was an Australian citizen when Karen was born, she does not automatically acquire citizenship on her birth. Her parents were in Australia on student visas when she was born, hence Karen would also have been born with student visa status, although her student visa status would have ceased when her parents’ own student visas expired. The fact that her mother became a citizen after her birth does not bring her within s 12(1)(a). Karen would have been resident in Australia for 10 years. It would seem on the facts that she would be considered to be ‘ordinarily resident’ in Australia. Karen could also possibly apply for citizenship on the basis that she is stateless. Children who are born in Australia and are ‘stateless’ may apply for citizenship. They must show that they do not have nor

are there reasonable prospects of acquiring citizenship in a foreign country (s 21(8) of the Australian Citizenship Act 2007). This situation can arise where a child is born to parents who are not permanent residents and where the laws of their respective countries do not confer citizenship on the child. According to the citizenship laws in Indonesia, the father must be married (see Law No 12 of 2006 on Citizenship of the Republic of Indonesia, Art 4) in [page 192] order to acquire citizenship. Under the Malaysian Constitution, Art 15, a child with a Malaysian parent may be registered as a citizen. Is this possible if the mother will not have anything to do with her? See also Art 15A Special power to register children. Subject to Art 18, the Federal government may, in such special circumstances as it thinks fit, cause any person under the age of 21 years to be registered as a citizen. In other words it may be difficult to demonstrate she is stateless. However, under the Australian Citizenship Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017, it is proposed s 12 will be substantially amended to exclude a child born in Australia to parents who were unlawful non-citizens at any time during the 10 years following the child’s birth. There are also proposed restrictions concerning abandoned children.

Question A25: Michelle Paddington 4.27 The question is whether Michelle is eligible to apply for citizenship by conferral. In particular how will she meet the residence requirement? In answering these questions you should consider both

the eligibility and formal requirements for application and present your answer in the form of a memo. Section 21 of the Australian Citizenship Act 2007 sets out the requirements for eligibility for citizenship, which require that Michelle satisfies the residence requirement, which is set out in s 22. In this case it is not clear that she has been present in Australia for four years before making the application. This would have to be determined by looking at her movements into and out of Australia in order to ascertain whether or not she has been outside of the country for under 12 months (s 22(1A)). If it is more than 12 months, her application will not succeed. However, Michelle should meet the requirements of being present in Australia as a permanent resident for 12 months before making the application (s 22(1)(c)). Section 22C of the Australian Citizenship Act 2007 has softened the residence requirements for a range of sporting professionals participating in an Australian team, including at the Olympics. Participation in the Australian national cricket team has also now been included for the purpose of ‘special residence’ for Australian citizenship. See the ‘Special Residence Requirement (s 22C)’, legislative instrument IMMI 13/056 (Federal Register of Legislation No F2013L01123) dated 29 May 2013. Under s 22(6) periods of lawful residence, other than permanent residence, can be treated as periods of permanent residence if the applicant can demonstrate that they would suffer significant hardship or disadvantage if those periods [page 193] were not treated as periods of permanent residence. This section makes explicit reference to s 22(1)(c) of the Act.

Section 5.17 of the Australian Citizenship Instructions provides some policy guidance on the issue of hardship or disadvantage. It provides that ‘[p]ersonal wants are aspirations and generally do not constitute hardship (that is, the right to vote, election to Parliament, eligibility for HECS-HELP, representing Australia internationally in academics or sport).’ However, in this case loss of citizenship will also lead to a loss of potential business opportunities. There would not appear to be significant hardship or disadvantage to Michelle. However, consider the case of Re Paul Noel Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259; 12 ALD 416 which considered this provision as it was contained in the previous Australian Citizenship Act: In the present case it would in my opinion be wrong to treat the Minister’s guidelines as binding criteria. The discretions conferred by section 13(4)(b)(iv) and section 13(9)(c) establish for themselves guides to the matters to which attention ought to be given. Section 13(4)(b)(iv) looks to significant hardship or disadvantage. It would be wrong in my view to apply strictly a guideline which admits contemplation of business hardship and disadvantage. The discretion moreover looks to periods of presence in Australia which ought to be treated as periods of permanent residence. In my opinion this requires attention to be given to the nature or character of the presence in Australia, that is to say the family, social and business connections which give rise to the presence in Australia, the place of the analogy between the periods of presence in Australia and the permanent residence therein, the more readily a discretion may be exercised.

Michelle could certainly make the application for citizenship and request the exercise of discretion under s 22(6) but her case is not very strong. Given the cost of the application is not that high she may be prepared to attempt an application. Note that there was previously a discretion under the old Act where periods during which the applicant was a permanent resident and was outside Australia engaged in activities beneficial to the interests of Australia may be counted towards the residence requirements. This provision was not carried over into the 2007 Act. Citizenship applications must be made in accordance with requirements in s 46 of the Australian Citizenship Act 2007. The fee is $285 (see Sch 3 Item 14 Australian Citizenship Regulations 2007)

and form 1300t Application for Australian citizenship — General eligibility. However, on 15 June 2017, the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 was introduced into Parliament. Among other proposed changes to the [page 194] citizenship regime, an applicant will need to have been present in Australia as a permanent resident for four years. Furthermore, the applicant must not have spent more than 365 days outside Australia in that four-year period as a permanent resident. It is also proposed that s 22(6) is repealed.

[page 195]

Suggested answers to questions on Subject B: Australia’s visa system Question B1: Maria and Peter 4.28 • • •

You need to ascertain: whether Peter has sponsored a partner before; whether Maria can meet the public interest criteria; and whether there is any bar to an onshore visa application.

If there is an 8503 condition on Maria’s tourist visa, she cannot make any further application within Australia (except a protection visa application) unless she obtains a waiver of the ‘no further stay’ condition. If the couple decide not to marry, they will not be able to satisfy the 12-month cohabitation requirement for a de facto spouse. It does not appear that there are any compelling or compassionate circumstances that would lead to the waiving of this requirement (reg 2.03A). If they marry, Peter can sponsor Maria for a subclass 820 visa. Maria will have to meet all the criteria and prove that their relationship is genuine. She should include her children’s details in the application form. When the application is lodged, Maria will be granted a bridging visa which will come into effect when her tourist visa expires. This visa will allow her to remain in Australia until her application for the 820 visa has been finally determined. Once Maria obtains the 820 visa she can apply for subclass 445 visas for her children to come and join her in Australia. When Maria lodges her application for the 820 visa she will also

simultaneously lodge an application for a subclass 801 permanent visa. After two years, provided the relationship is genuine and continuing and health and character checks are passed, Maria and her children should be eligible for permanent residence (provided they have previously obtained 445 visas and been included in the permanent application). If Maria has not yet applied for visas for her children, once she has permanent residence she can apply for subclass 101 visas for them, provided they meet the criteria. If Maria wants to return home and apply from there, then Peter can sponsor her and her children for a prospective marriage (subclass 300) visa. If that is granted then she can come to Australia with her children, but has to marry Peter within nine months of the date of grant of her 300 visa, and can then lodge an onshore spouse (subclass 820/801) visa application. Alternatively, she can get married in Australia before she leaves and apply offshore for a subclass 309 and associated subclass 100 visa. If she applied offshore, she would be able to include her children in the application. Once the visas are granted, she can come to Australia with her children. [page 196] Maria should be advised of the type of evidence required to support the application, the application fees and charges and likely processing times. She should also be sensitively advised about the consequences of the relationship breaking down whilst she still holds a temporary visa, in particular, the special provisions relating to family violence. Peter should also be advised of his sponsorship obligations.

Question B2: Mary and John 4.29

Suggested answers are as follows.

a.

b.

Mary and John appear to meet the criteria for the onshore contributory aged parent and aged parent visas. They meet the ‘balance of family’ test (reg 1.05). These visas can be applied for from within Australia without them having to return to England, as they do not have the 8503 condition on their current visas. Alternatively, a temporary sponsored parent visa has been announced, which will be introduced from November 2017. Mary and John could apply for this if they are interested. This visa will be in two streams, a shorter term and a longer term stream. The shorter term stream will attract a visa application charge of $5000 per parent, and will provide the visa holder a stay of up to three years. The longer term stream will attract a visa application charge of $10,000 per parent, and will provide the visa holder a stay of up to five years. It is expected both streams will have one extension facility, with the visa applicant being able to remain in Australia for up to 10 years, but the temporary sponsored parent visa will not have any option for applying for an onshore permanent parent visa. It is not expected the temporary sponsored parent visa will be subject to a balance of family test, and persons granted the visa will have no access to Medicare or other Australian benefits. The Australian child sponsor will be legally liable for any public health expenditure, including aged care, incurred by the visa holder in Australia. No, Mary and John do not have to lodge separate applications. They can lodge one application as primary and secondary applicants together. However, separate application charges are payable by Mary and John at the time of application. As at 1 July 2017 the visa application charges are:

[page 197]

c.

d. e.

An assurance of support must be provided for permanent visas only. It is not necessary for temporary visas. It is lodged with Centrelink, but it does not need to be provided by the actual sponsor. All contributory parent and parent visas (whether onshore or offshore) are processed at the DIBP Perth office. Aged parent is defined in the Migration Regulations reg 1.03 to be someone who is old enough to qualify for the age pension under the Social Security Act. They will qualify as aged parents because they are both 68, even though only the primary applicant needs to be aged. However, if John is 68 but Mary is only 60, John satisfies the definition of an aged parent

f.

g.

h.

and will need to be the primary applicant. Mary’s age would not affect the application as only the primary applicant needs to satisfy the definition of an aged parent. Condition 8503 ‘No further stay’, s 48 previous refusal or cancellation, or Sch 3 criteria if their substantive visas have ceased by the time they apply for the visa. John and Mary are still eligible provided their children meet the definition of eligible New Zealand citizens (see reg 1.03). If they have been in Australia since before 26 February 2001, then they would qualify. If the two children are ‘eligible New Zealand citizens’ they must meet the residence requirements as described in reg 1.03 and have met health and public interest criteria upon their last entry to Australia. Also, their sponsor, whether citizen, permanent resident or eligible New Zealand citizen, will need to be ‘settled’ (in policy this means having resided lawfully in Australia for at least two years). [page 198]

Question B3: Liz and Phil 4.30 a.

Suggested answers are as follows. While Liz and Phil would meet the age requirement to lodge an aged parent or contributory aged parent visa onshore, they do not meet the balance of family test because only one of their four children is a permanent resident of Australia. Suzanne is on a 309 temporary visa and is not yet an Australian permanent resident. Migration Regulations reg 1.05 defines the balance of family test. However, a temporary sponsored parent visa has been announced, which will be introduced from November 2017.

b.

Liz and Phil could apply for this if they are interested. This visa will be in two streams, a shorter term and a longer term stream. The shorter term stream will attract a visa application charge of $5000 per parent, and will provide the visa holder a stay of up to three years. The longer term stream will attract a visa application charge of $10,000 per parent, and will provide the visa holder a stay of up to five years. It is expected both streams will have one extension facility, with the visa applicant being able to remain in Australia for up to 10 years, but the temporary sponsored parent visa will not have any option for applying for an onshore permanent parent visa. It is not expected the temporary sponsored parent visa will be subject to a balance of family test, and persons granted the visa will have no access to Medicare or other Australian benefits. The Australian child sponsor will be legally liable for any public health expenditure, including aged care, incurred by the visa holder in Australia. Charlie, having been in Australia for two years and in stable employment, can be regarded as ‘settled’. Suzanne, however, has only been in Australia for a short time and is not yet an Australian permanent resident and cannot be regarded as ‘settled’. See reg 1.03 for definition of ‘settled’.

Question B4: Martha and Wayne 4.31 a.

Suggested answers are as follows. Wayne, aged 55, meets the age threshold. However, the retirement (subclass 410) visa was closed to new applicants from 1 July 2005 and Martha and Wayne are therefore ineligible to apply. There is an investor retirement (subclass 405) visa but they do not meet the financial thresholds if they are going to live in a non-regional area. The thresholds require between $1 million and $1.5 million in assets to

transfer, along with an annual retirement income of between $50,000 and $65,000: [page 199] Subclass 405 requirements (in operation from 1 July 2005)

Minimum assets required to be transferred to Australia within two years of the date the 405 visa is granted

b.

If proposing to live in a non-regional area (Sydney, Melbourne, Brisbane) $750,000

If proposing to live in a regional area (ie, outside Sydney, Melbourne, Brisbane) $500,000

Minimum net income needed to $65,000 be able to prove will be available from investments and/or pensions

$50,000

Investment into a state/territory government bond

$500,000

$750,000

Neither Martha nor Wayne would meet the age requirement to lodge a contributory aged parent visa onshore (subclass 864) or an aged parent visa onshore (subclass 804). The definition of aged parent is set out at reg 1.03. Presently it is 65 for men and women, and there are moves by the government to increase this to 70 by 2035. They also do not appear to meet the balance of family test in that, of their three children, only Alfie is a permanent resident of Australia. Anne is on a 309 temporary visa and is not yet an Australian permanent resident. Migration Regulations reg 1.05 defines the balance of family test. While Martha has one natural child, Wayne has two children. They would, however, meet the balance of family test once Anne becomes an Australian permanent resident. Depending on when Wayne ceased to operate his real estate business and how successful it has been, he may be able to consider migrating on a statesponsored business skills visa, however due to his age there

c.

would need to be exceptional circumstances. Martha and Wayne now meet the balance of family test given one daughter has unfortunately passed away. They may qualify for one of the parent visas, but the limited number of visa places available will cause a significant delay. If they choose to apply for the parent (subclass 103) visa the waiting time to process these visas is at least 30 years. The best option would appear to be a contributory parent permanent visa as the contributory parent visa pathways provide greater speed of processing. [page 200]

d.

Alternatively, a temporary sponsored parent visa is proposed to be introduced from November 2017. Martha and Wayne could apply for this if they are interested. This visa will be in two streams, a shorter term and a longer term stream. The shorter term stream will attract a visa application charge of $5000 per parent, and will provide the visa holder a stay of up to three years. The longer term stream will attract a visa application charge of $10,000 per parent, and will provide the visa holder a stay of up to five years. It is expected both streams will have one extension facility, with the visa applicant being able to remain in Australia for up to 10 years, but the temporary sponsored parent visa will not have any option for applying for an onshore permanent parent visa. It is not expected the temporary sponsored parent visa will be subject to a balance of family test. Persons granted the visa will have no access to Medicare or other Australian benefits. The Australian child sponsor will be legally liable for any public health expenditure, including aged care, incurred by the visa holder in Australia. Alfie, having been in Australia for three years, can be

e.

f.

regarded as ‘settled’. See reg 1.03 for definition of ‘settled’. Only one assurance of support would be required for Martha and Wayne together. However, up to three assurers can join together to provide that assurance of support if one assurer cannot meet the financial threshold by himself or herself. The period of assurance for the contributory parent migrant visa is 10 years, while the period is two years for the noncontributory category (Social Security (Assurance of Support) Determination 2008, para 17). The contributory parent (migrant) visa can only be lodged by sending the application to a prescribed PO box or by courier to the Perth Parent Visa Centre (Migration Regulations Sch 1 Item 1130(3)(b) and legislation instrument 09/046 of 25 May 2009). The bond and health charges vary in accordance with the CPI, and the charge is raised every July. The health charge is set out in Sch 1 Item 1130(2)(b) and is presently $43,600 per applicant over the age of 18 at time of application (this is the second instalment visa application charge).

Question B5: Harry and Hermione 4.32 a.

b.

Suggested answers are as follows. Harry, being in Australia, would apply for the orphan relative (Class BT, subclass 837) visa. Hermione, being offshore, would apply for the orphan relative (Class AH, subclass 117) visa (Migration Regulations Sch 1 Items 1108(3)(a) and 1108A(3)(a) and (b)). There is a concessional visa application charge for the orphan relative visas. However, as they are not able to make an application at the same time and place (Harry being in Australia and Hermione being overseas), they would need to pay the two visa application charges separately (Migration

Regulations Sch 1 Items 1108(2)(a)(i) and (ii), and 1108A(2) (a)(i)). [page 201]

Question B6: John Lawless 4.33 a.

b.

Suggested answers are as follows. Under regulations for the employer nomination scheme (subclass 186) visa, John would need to be aged under 45, be skills assessed and have competent English. His profession would also need to be on the relevant occupation list for the 186 visa. Radio communications technician (ANZSCO 313211) is on the MLTSSL (Medium and Long-term Strategic Skills List) (IMMI 17/080 of 28 June 2017), so John is eligible to be sponsored by 6EX. Alternatively, as Esperance is in regional Australia, John could be sponsored for the regional sponsored migration scheme (subclass 187) visa. From March 2018, it is proposed that applicants for the employer nomination scheme (subclass 186) and regional sponsored migration scheme (subclass 187) visa will be required to have three years’ relevant working experience. However, by that time, John will have already worked for three years so would be eligible to apply, if he had not already done so. Under the regional sponsored migration scheme, 6EX must be able to show that it cannot fill the position from local sources (reg 5.19(4)(h)(ii)(C)). It does not need to demonstrate a commitment towards training Australians. However, from March 2018, employer nomination scheme and regional sponsored migration scheme employers need to make a payment into a training fund. As from March 2018, it

c.

is proposed the existing training benchmark will be replaced by a new training benchmark in that: • Businesses with a turnover of less than $10 million per year will be required to make a one-off payment of $3000 to the Skilling Australia Fund levy for each employee sponsored under the employer nomination scheme (subclass 186) or regional sponsored migration scheme (subclass 187) visa, and • Businesses with a turnover of more than $10 million per year will be required to make a one-off payment of $5000 to the Skilling Australia Fund levy for each employee sponsored under the employer nomination scheme (subclass 186) or regional sponsored migration scheme (subclass 187) visa. The radio station will need to obtain endorsement and support from a regional certifying body (reg 5.19(4)(h)(ii) (F)), which for Esperance is RDA Goldfields Esperance as per the relevant legislative instrument (IMMI 16/045 of 1 July 2016).

Question B7: Fox Mulder 4.34 a.

b.

Suggested answers are as follows. Aeronautical engineer (ANZSCO 233911) is on the Medium and Long-term Strategic Skills List (MLTSSL) for the 457 visa (IMMI 17/060 of 28 June 2017). AARSS will be seeking a Standard Business Sponsorship under the Migration Act ss 140E and 140GB, and the Migration Regulations Sch 2 Pt 457.223(4), [page 202]

c.

d.

e.

and the sponsorship, nomination and visa application must all be lodged electronically over the Internet. Note it is proposed that the 457 visa is to be replaced by a temporary skills shortage visa from March 2018. The fees payable are $420 for the sponsorship, $330 for the nomination (regs 2.61(3A), 2.73(2), Sch 1 Item 1223A(1)(b) and legislative instrument 13/063) and $1080 (as at 1 July 2017) for the 457 visa application. If Fox has family members with him, they too will need to pay an additional applicant charge for the visa application (Sch 1 Item 1223A(2)(a)). 457 visa holders under the Standard Business Sponsorship are to be paid at the market rate which must be at least the Temporary Skilled Migration Income Table rate (TSMIT), and at equivalent terms of conditions of employment. However, the Migration Regulations reg 2.72(10AB) states that if a person is paid at a prescribed salary, then the TSMIT and equivalent terms etc do not apply. IMMI 13/028 at para 3 prescribes this amount to be $250,000. As Fox is to be paid an annual salary of $260,000, this exceeds the prescribed amount and it will meet the salary requirements for the 457 visa. As Fox is in Australia on an ETA, which is a substantive visa, he can apply for the employer nomination scheme (subclass 186) visa through the direct entry stream. However, if he gets a 457 visa first, he can apply for the employer nomination scheme (subclass 186) visa through the temporary residence transition stream. After he has worked for AARSS for two years (reg 5.19(3)(c)(i)(A)) (note: three years from March 2018), he can then be sponsored by his employer, providing AARSS will continue to nominate him and his occupation remains on the occupations list.

Question B8: Cedric Chaudry

4.35 Cedric could apply for a temporary activity (subclass 408) visa as long as his assignment will not exceed three months. The subclass 408 visa would be valid for three months and would allow Cedric to cover the cricket tour. Cedric should apply under the invited participant stream. This means that he would need to be invited to participate in the tour by the organisation that is running it.

Question B9: Ludwig Von 4.36 a.

b.

Suggested answers are as follows. Ludwig can be sponsored by Telstar under the temporary work (skilled) (subclass 457) visa (under Sch 2 Pt 457.223(4)). His occupation (ANZSCO 263111) is on the Medium and Long-term Strategic Skills List (MLTSSL) for the 457 visa (IMMI 17/060 as at 28 June 2017). Note it is proposed that the 457 visa will be replaced by the temporary skills shortage visa from March 2018. If Ludwig is sponsored under the 457 visa, he can get a health waiver under Sch 4 cl 4006A(2) if his medical condition is not related to tuberculosis or a condition which would make him a threat or a danger to the Australian community, and his employer undertakes to meet his medical costs for the [page 203]

c.

condition that caused him to fail to meet the relevant health criteria (Sch 2 Pt 457.224(1)). For the employer nomination scheme (subclass 186) visa, if Ludwig got a 457 visa first, he could apply through the temporary residence transition stream, which is subject to the 4007 condition (with waiver provisions) (186.224(1)) rather than the 4005 condition (with no waivers), which would

apply if he went through the direct entry (186.235(1)) or agreement stream (186.244(1)).

Question B10: Westland Constructions 4.37 a.

b.

Suggested answers are as follows. The Migration Act s 140H and Migration Regulations Pt 2A Div 2.19 prescribe the type of sponsorship undertakings which need to be met by an employer, which include the following: • meet cost of return travel of the employee; • notify DIBP of any change in circumstances concerning the employer and the employee; • notify DIBP of certain events within specified time limits; • comply with immigration and workplace laws; • ensure the employee holds any requisite licence or registration for the job; • make superannuation payments and deduct PAYG tax in respect of the employee; • repay the Commonwealth any cost incurred in respect of the employee to a limit of $10,000; • co-operate with workplace inspectors; • ensure equivalent terms and conditions of employment; • keep records and produce these as requested by the Department. A sponsor’s undertakings cease in the circumstances described in Pt 2A Div 2.19. Sponsorship organisations are required to demonstrate they have a satisfactory record of, or demonstrated commitment towards, providing training opportunities for Australian citizens or permanent residents, for example, through apprenticeships, training courses, participation in

government-sponsored training incentive schemes, employing newly graduated associates, etc (using reg 2.59(d), see also reg 2.87B). IMMI 17/045 specifies that to meet the training benchmark, an organisation must have incurred in its recent expenditure either: • 2% of its annual payroll towards an industry training fund; or • 1% of its annual payroll towards providing training to its employees. As from March 2018, it is proposed that the existing training benchmark will be replaced with a new training benchmark, which provides that: 1. For permanent (employer nomination scheme/regional sponsored migration scheme) visa nominations: •

businesses with a turnover of less than $10 million per year will be required to make a one-off payment of $3000 to the Skilling Australia [page 204] Fund levy for each employee sponsored under the ENS (186) or RSMS (187) visa, and

•

2.

businesses with a turnover of more than $10 million per year will be required to make a one-off payment of $5000 to the Skilling Australia Fund levy for each employee sponsored under the ENS (186) or RSMS (187) visa. For temporary skills shortage visa nominations:

•

businesses with a turnover of less than $10 million per year will be required to make an up-front payment of $1200 to the Skilling Australia Fund levy per year for each employee sponsored under the TSS visa, and

•

businesses with a turnover of more than $10 million per year will be required to make an upfront payment of $1800 to the Skilling Australia Fund levy per year for each employee sponsored under the TSS visa.

Question B11: Marj d’Barge 4.38 a.

b.

Suggested answers are as follows. The Job Ready Program (JRP) is a four-stage skills assessment process for trade occupations assessed by TRA, and is applicable to overseas students who completed their studies in Australia and wish to apply for GSM in Australia. The first stage is a provisional assessment, followed by a Job Ready employment stage with additional training in ‘workplace English and culture’, and then a Job Ready workplace assessment, and finally a Job Ready final assessment. The entire process will cost approximately $4500 from start to finish. The provisional stage of the JRP will only enable Marj to apply for the skilled graduate (subclass 485) visa, which is granted for 18 months. She will need to have competent English, but as she is an Irish citizen holding an Irish passport, she is automatically regarded as having competent English (reg 1.15C(2) and IMMI 15/005). During the 485 visa period she will have to work in her occupation for 12 months and then go through the other three stages of the JRP before she can apply for a permanent GSM visa. The Offshore Skills Assessment Program (OSAP) is a TRA skills assessment process for applicants with trade occupations who are outside Australia, or for applicants in Australia who have not completed any studies in Australia, or for applicants (either onshore or offshore) applying under the employer nomination scheme. As Marj has left Australia, she will need to be assessed under the OSAP. Under the OSAP,

an applicant will need to have completed a qualification equivalent to Australian standards (Marj meets this as she obtained her AQF3 from Australia) and she will need to have worked full-time for three years in her trade, and at least 12 months in the last 36 months before she can apply. As Marj has only worked for six months since she returned home, she does not qualify at the present time under the OSAP. [page 205]

Question B12: Paddy and Cathy 4.39 a.

b.

Suggested answers are as follows. Under the new GSM scheme after 1 July 2012, Cathy can either apply for the skilled independent (subclass 189) visa or, with a sponsorship from Paddy’s sister Rita, who resides in Richmond, Victoria (which is a designated area), Paddy and Cathy can apply for the skilled regional nominated or sponsored (provisional) (subclass 489) visa. Both applications must be lodged online (IMMI 15/035). However, before she can lodge the application, Cathy must first obtain a successful skills assessment, and submit an Expression of Interest online. She must wait to receive an invitation to apply before she can apply for either the 189 or the 489 visa. The sponsorship and the visa application must be lodged online (Migration Regulations Sch 1 Items 1137(3)(a) and 1230(3) (a)). As Paddy’s occupation of used car salesman is not on the skilled occupations list, he fails to satisfy the threshold criteria. On the other hand, as an actuary, Cathy’s ANZSCO occupation code is Actuary (ANZSCO 224111), which is on the Medium and Long-term Strategic Skills List (MLTSSL) for

c.

189 and 489 visas (IMMI 17/072 as at 28 June 2017). The assessing authority for an actuary is VETASSESS (IMMI 17/072). Cathy will need to score at least 60 points in the points test in Sch 6D: 1.

Skill

0

As an Actuary, Cathy is on the MLTSSL, but there are no points awarded for Skill.

2.

Age

25

Cathy is aged 39.

3.

English

10

Cathy has ‘proficient English’.

4.

Overseas employment

15

Cathy has worked as an actuary for the last 10 years.

5.

Australian employment

0

Cathy has never worked in Australia.

6.

Australian professional year

0

Cathy has never completed an Australian professional year.

7.

Education

15

Cathy has a Bachelor degree.

8.

Australian study

0

Cathy has not studied in Australia.

9.

Credentialed community 0 language

10. Regional campus

0

Irish Gaelic is not listed as a credentialed community language. Cathy has not studied in a regional area in Australia.

[page 206]

11. Partner skill

0

N/A.

12. State/territory nomination

0

Cathy is not nominated by a state or territory.

13. Sponsorship

10

This is only applicable if Cathy is sponsored by Paddy’s sister Rita to a designated area. As Richmond is a suburb of Melbourne, which is a designated area, she would be eligible for these points, but only if she is applying for the 489 visa.

Total

65 or 75

Cathy scores 65 if she is applying for the 189 visa, or 75 if she is applying for the 489 visa. As she would pass under either visa, her

better option would be to apply independently for the 189 visa, which is a permanent visa whereas the 489 visa is only a temporary visa and will restrict her settlement to Victoria for two years.

Question B13: Peter Pan 4.40 As an overseas student who was in Australia on a student visa, Peter can only apply for a 485 visa. He can apply online or have his application posted or couriered to the SA Temporary Graduate Processing Centre (Item 1229(3)(c), IMMI 15/035). However, as he applied for his first student visa after 5 November 2012, he qualifies for the 485 visa in the post-study work stream because he completed a tertiary degree from an institution in Australia. He does not need a skills assessment for the post-study work stream. As he graduated with a Bachelor degree, the 485 visa will be granted with a two-year validity.

Question B14: Eugene Ivanoff 4.41 a.

b.

Suggested answers are as follows. Eugene should apply for a skills assessment from Engineers Australia as an aeronautical engineer (ANZSCO 233911, IMMI 17/072). The assessment must be done before he lodges an Expression of Interest online. Eugene could either apply for a 189 visa without his uncle’s sponsorship or, as his uncle lives in a designated area, he can apply for a 489 visa with his uncle’s sponsorship. However, this is dependent on whether he [page 207]

c.

can pass the points test for the 189 and 489 visas. Eugene must lodge an Expression of Interest online and wait for an invitation to apply before he can make an application for a visa. The sponsorship and visa application must be lodged online. Eugene will need to obtain at least 60 points on the points test in Sch 6D. The points Eugene would get are as follows: 1.

Skill

0

Aeronautical engineer (ANZSCO 233911) is on the MLTSSL for the 189 and 489 visas, but there are no points awarded for the Skill factor.

2.

Age

30

Eugene is aged 33.

3.

English

0

Eugene only has ‘competent English’.

4.

Overseas employment

5

Eugene has worked in the air force for the past 10 years, but has only been employed as an aeronautical engineer for the past four years.

5.

Australian employment

0

Eugene has never worked in Australia.

6.

Australian professional year

0

Eugene has not done an Australian professional year.

7.

Education

15

Assuming Eugene’s Bachelor degree in Engineering is assessed as being equivalent to Australian standards.

8.

Australian study

0

Eugene has never studied in Australia.

9.

Credentialed community 5 language

Eugene is fluent in Russian, assuming he can pass the NAATI test as a paraprofessional interpreter or translator in the Russian language.

10. Regional campus

0

N/A.

11. Partner skill

0

N/A — Eugene has no partner.

12. State/territory nomination

0

N/A.

[page 208]

13. Designated area sponsorship

10

10 points if he is sponsored by his uncle Alexei to a designated area for the 489 visa. As Cairns is a designated area, he would be eligible for 10

points, if he is applying for the 489 visa. Total

d.

e.

55 or 65

Eugene scores 55 if he is applying for the 189 visa without Alexei’s sponsorship, or 65 if he is applying for the 489 visa with a sponsorship from Alexei. As he would only pass the points test for the 489 visa, he should apply for the 489 visa.

If Eugene had reached the pool mark but not the pass mark, he would stay in the pool (Migration Act s 94(3)). He would remain in the pool for two years (s 95A), during which time the Minister may vary the pass mark or the pool mark (s 96). If the pass mark is lowered to the score Eugene obtained, he will be offered a visa in the migration program (s 95(2)(b)), or if the pool mark is raised to beyond the score that Eugene had obtained, he will be removed from the pool and his application will be rejected (s 95(2)(c)). If he remains in the pool for the entire pool period without being affected by any variation of the pass mark or pool mark, then at the end of the two years he will be removed from the pool and his application rejected (s 95(3)(a) and (4)). In practice, however, this may not happen as the pool mark for the points test is currently set as the same as the pass mark. In other words, there is no pool in operation. The 489 skilled regional nominated or sponsored visa is a provisional visa which carries the visa condition 8549, which means the holder must live, study and work only in an area specified by the Minister (that is, a designated area). Alexei lives in Cairns, which is a designated area. After Eugene has lived in the designated area for two years and worked there for one year, he is eligible for permanent residence under the skilled regional (subclass 887) visa without having to again satisfy age, sponsorship, English or points test requirements.

Question B15: Jonathan Swift

4.42 a.

b.

Suggested answers are as follows. No, Jonathan cannot obtain an ETA as he is a South African national, and South Africa is not an ETA-eligible passport. Only nationals of ETA-eligible passport countries can obtain ETAs (Migration Regulations Sch 1 Item 1208A(3)(f) and legislative instrument IMMI 16/066 regarding ETA-eligible passports). He can apply for the business talent (subclass 132) visa from anywhere (Sch 1 Item 1104AA(3)), and he has to lodge his application online (Sch 1 Item 1104AA(3)(a), IMMI 16/106). As from 1 July 2012, the 132 visa comes in two streams: the [page 209] significant business history stream and the venture capital entrepreneur stream. He can apply for the 132 visa in either stream. He needs to submit an Expression of Interest online, obtain a nomination from a state or territory government and get an invitation to apply before he can apply. As at 1 July 2017, the first instalment of the visa application charge for the subclass 132 visa is $7130 (plus extra if additional applicants and plus the second instalment charge) (Sch 1 Item 1104AA(2)).

Question B16: Nathan Yahoo 4.43 a.

Suggested answers are as follows. Given his situation, one option for Nathan would be to apply under the investor stream of the business innovation and investment (provisional) (subclass 188) visa. After being granted the 188 visa and having lived in Australia for at least two out of those four years, Nathan will qualify for the

b.

permanent (subclass 888) visa. Alternatively he may wish to apply for the significant investor stream of the 188 visa if he can make an investment of $5 million in a ‘complying investment’ (Migration Regulations reg 5.19B, Sch 2 Pt 188.252(1)). To satisfy the requirements for the investor stream or the significant investor stream of the 188 visa, Nathan needs to meet the requirements of Sch 1 Item 1202AB business skills (provisional) (Class EB) and Sch 2 Pt 188. Nathan will need to satisfy at least the following criteria: • submitted Expression of Interest online, obtained nomination from a state/territory government and received an invitation to apply; • lodged application online; • have genuine intention to reside in state or territory which provided the nomination. Investor stream • He must have overall a successful record of eligible investment activity, and have demonstrated a high level of management skill in the eligible investment activity. As the bulk of Nathan’s investment has been passively retained over a period of several years, he will have to explain how this demonstrates that he has the necessary management skills. • He must have at least three years’ experience in the direct management of an eligible investment activity. • His eligible investment activity must be at least $1.5 million in one of the last five fiscal years. • His total personal assets in the last two years must be at least $2.25 million. • He must be under 55 years of age, unless the age requirement is waived where the applicant proposes to establish or participate in a business which the

•

•

nominating state/territory has determined to be of exceptional economic benefit to that state/territory. He must have no history of involvement in business or investment activities that are of a nature not generally acceptable in Australia. He will invest $1.5 million in a designated investment (state/territory Treasury bonds) for four years. [page 210]

•

•

•

•

He must have a realistic commitment to maintaining an investment activity in Australia even after his designated investment has matured. He must be able to demonstrate that the funds used for the designated investment are legally owned by him, unencumbered, and accumulated from his eligible investment activities. He must have established a need for him to be in Australia temporarily to manage his investment or business activities. He must pass the Business points test under Sch 7A.

Significant investor stream • He must have invested $5 million in one or more complying investments. Complying investments are prescribed by legislative instrument. • He must hold the investments for four years. • He must provide form 1413 Declaration and form 1412 Deed of Acknowledgment absolving the Commonwealth of all liabilities in relation to his investments. Nathan will then need to meet the permanent investor or significant investor visa requirements set out in Sch 2 Pt 888

and Sch 1 Item 1104BA business skills (residence) (Class EC) to be eligible for the permanent visa.

Question B17: Pauline Smith 4.44 a.

b.

Suggested answers are as follows. Even though Nathan has died, his widow Pauline can continue with the application for the business innovation and investment (permanent) (subclass 888) visa. To qualify, Pauline needs to have been in Australia for at least one year in the previous two, and have had an ownership interest in a main business in Australia of at least AU$200,000, and which had employed at least two full-time employees. Pauline would meet all these requirements. It is also presumed that Facenet Oz has been registered with an ABN, and has paid taxes and kept all its BAS in order. As it did not achieve an annual turnover of AU$200,000, it had to rely on support from the Victorian government to certify there are exceptional circumstances, and that the business was operated in a regional area (which Wodonga is). Pauline will not need to submit an Expression of Interest for the 888 visa, nor will she need to pass the business points test. Pauline can either be in Australia or outside when the visa is granted, so it will not matter whether she is in Australia or in Israel at time of decision.

Question B18: Paul Inenn’söhn 4.45 a.

Suggested answers are as follows. Paul has a number of options. These include business talent (subclass 132) and business innovation and investment (provisional) (subclass 188) visas.

[page 211] Business talent (subclass 132) — significant business history stream As Paul’s business has business assets of more than AU$400,000 and an annual turnover of more than AU$3 million, and his total business and personal net assets are in the vicinity of AU$2.5 million, he would qualify for the significant business history stream of the business talent (subclass 132) visa. He will need a sponsorship from a state/territory in Australia, but that should be no problem as the Victorian Premier seems keen to sample his ice cream. He may have a problem with his age, being 56. But if he proposes to establish or take part in a business in the state/territory that is sponsoring him, and the state/territory government has determined the business to be of exceptional economic benefit to the state/territory, this problem can be overcome. There is no mandatory English requirement or points test for the 132 visa.

b.

c.

Business innovation and investment (provisional) (subclass 188) — business innovation stream The subclass 188 visa, like the business talent (subclass 132) visa, also requires sponsorship from a state/territory in Australia. Paul would have to pass the points test under Sch 7A. This is a provisional visa that is valid for four years. On balance, given the state support available, business talent (subclass 132) would appear the best option, as the visa is a permanent visa, provided Paul is committed to establishing the business in the state where the sponsorship is to be secured. Migration Regulations reg 1.03 defines a ‘dependent child’ to be: … the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child or step-child who:

(a) has not turned 18; or (b) has turned 18 and: (i) is dependent on that person; or (ii) is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.

Migration Regulations reg 1.03 states ‘member of the family unit’ has the meaning set out in reg 1.12: (1) A person is a member of the family unit of another person (the family head) if the person: (a) is a spouse or de facto partner of the family head; or (b) is a child or step-child of the family head or of a spouse or de facto partner of the family head (other than a child or step-child who is engaged to be married or has a spouse or de facto partner) and: (i) has not turned 18; or (ii) has turned 18, but has not turned 23, and is dependent on the family head or on the spouse or de facto partner of the family head; or [page 212] (iii) has turned 23 and is under paragraph 1.05A(1)(b) dependent on the family head or on the spouse or de facto partner of the family head; or (c) is a dependent child of a dependent child of a person who meets the conditions in paragraph (b).

There are two possible ways in which to answer this question regarding Ingrid. Arguing Ingrid is not a member of the family unit While it could be argued Ingrid is dependent on her father Paul despite being over 23, one may argue that she has a spouse and hence is disqualified from being Paul’s dependent child. Arguing Ingrid is a member of the family unit Ingrid is over 18 and incapacitated for work due to the total or partial loss of her bodily or mental functions. Further, as Ingrid’s husband has deserted her, a more correct interpretation would be that even though Ingrid is still legally

d.

married, she would not meet the legal definition of a spouse under reg 1.15A because Ingrid and her husband would need to continue to be in a genuine and ongoing relationship and have mutual commitments to live together as husband and wife. Thus it could be argued that she has ceased to have a spouse, despite being legally married, and reverts to being dependent and included as a member of the family unit for migration purposes. If Ingrid is assessed to be Paul’s dependent child, then the fact she will fail the medical criteria for migration to Australia (whether or not Paul decides to formally include Ingrid in his visa application), will also affect Paul’s own eligibility for the visa. If Paul applies for the business talent (subclass 132) visa, Sch 2 Pt 132 will apply. Schedule 2 Pt 132.213(3) says all members of the main applicant’s family unit (and Ingrid must be regarded as part of Paul’s family unit if she is his dependent child), must meet public interest criterion 4005 (the medical criterion), while Pt 132.213(6) may provide a way out if Ingrid is not migrating with Paul, and the Minister is satisfied that it would be unreasonable to require her to undergo the medical tests.

Question B19: Joanne Field 4.46 a.

Suggested answers are as follows. Generally, students can bring their immediate family members with them to Australia. Only family members who meet the definition of ‘member of the family unit’ can be granted a student visa. ‘Member of the family unit’ of an applicant for a student visa is defined in reg 1.12(6). See the Migration Act s 5CB and Migration Regulations reg 1.09A for the definition of a de facto spouse. Note reg 2.03A(3), ‘the 12 months pre-existing

relationship rule’. You will need to check with Joanne how long she and Ben have been living as a de facto couple. [page 213]

b.

Cindy meets the definition of ‘dependent child’ and therefore comes within the definition of ‘member of the family unit’. Dependent child is defined in reg 1.03. Joanne can bring Cindy to Australia with her. As from 1 July 2016, student visas are collapsed to only two subclasses. Joanne would be applying for the 500 student visa, and the old ‘assessment level’ system is replaced by an ‘immigration risk rating’ system. Being from the US, Joanne would most likely come in under rating level 1. Yes, as fiancé(e)s are not included in the definition of ‘member of the family unit’ for applicants for a student visa. If Ben and Joanne cannot establish their de facto relationship he will not be able to come as a secondary applicant.

Question B20: Ruchitta Riches and Speedy Gonzales 4.47 a.

b.

Suggested answers are as follows. Visa condition 8105 means Ruchitta can work once she has commenced her course of study. As a student studying a higher degree by research, there is no limitation on the number of hours she may work. Speedy Gonzales, being the dependant of a postgraduate student, can work 40 hours a fortnight (which is defined in the Migration Regulations Sch 4 to be a period of 14 days, commencing on Monday) while Ruchitta is doing the English language training. However, once Ruchitta has commenced

her Master’s degree, there is no restriction on the number of hours he can work (Sch 8 Item 8104(4)).

Question B21: Johnny Will 4.48 a.

b.

Suggested answers are as follows. The 1951 UN Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees, at Art 1A(2), defines a refugee to be a person who ‘owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it’. The Migration Act 1958 has redefined the definition of ‘refugee’ in a new s 5H. Whether someone will meet the definition of ‘refugee’ under s 5H will still depend on whether the person has a well-founded fear of persecution (separately defined in s 5J), but s 5H(2) gives the Minister the power to determine a person not to be a ‘refugee’ if the Minister is satisfied that the person has committed certain serious crimes. The Convention reasons are, as per Art 1A(2) of the Convention, race, religion, nationality, membership of a particular social group or political opinion. As an English Gypsy claiming persecution by other English people, Johnny may lay his claims for refugee status under the ambit of ‘membership of a particular [page 214]

social group’ and, perhaps, ‘race’. This, however, needs to now be read in the context of the Migration Act s 5L regarding membership of particular social groups other than family.

Question B22: Mary Kaur 4.49 Mary might have been able to lay claims to refugee grounds on the basis of her experience in Fiji based on race and/or religion had she applied for refugee status soon after arrival. However, it has now been more than 20 years since those episodes and Fiji has returned to democracy. Hence, if she applied for refugee status now, she would not have strong grounds.

Question B23: Anya Kornikov 4.50 a.

b. c.

d.

Suggested answers are as follows. The women at risk (subclass 204) visa would not be available to them as they must be offshore at the time of application (Sch 1 Item 1402(3)(b)). The only refugee and humanitarian stream visa which may be available is a protection visa. Anya, as a member of the club, could claim protection on the basis of membership of a ‘particular social group’, being the registered club. Her claim would be that she was singled out for persecution because she was a member of the club. Anastasia also has to convince the decision-maker that she is part of a group that shares a common characteristic that distinguishes it from the rest of society (Migration Act s 5L), which does not appear to be the case on the facts. As the alleged persecutor is the criminal organisation and not the government, it will be necessary to rely on the agents of persecution principle and establish that the Russian

government cannot or will not provide adequate protection from the depredations of the criminal organisation (see Migration Act s 5LA).

Question B24: Karim Sepehr 4.51 a.

Suggested answers are as follows. Karim can apply for the onshore protection (subclass 866) visa. Religious persecution It could be argued that the present political and religious climate in Iran amounts to religious persecution in that the behaviour is founded on religious intolerance and, if the applicant is returned to Iran, the behaviour raises a real chance of infliction of serious harm under s 5J of the Migration Act 1958, particularly subss (1) and (3). The only possible hurdle lies in s 5J(6), which says ‘conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a [page 215] refugee’. However, as Karim’s pastor has vouched for the genuineness of his conversion for a non-political purpose, he should be able to overcome this. Agents of persecution principle The agents of persecution principle is well exemplified by Devarajan v MIMA [1999] FCA 796 and in the United Nations Handbook on Procedures and Criteria for Determining Refugee

Status (Office of the United Nations High Commissioner for Refugees, Reedited, Geneva, January 1992). The latter states at p 17, [65]: Persecution is normally related to action by the authorities of a country. It may also emanate from sections of the population that do not respect the standards established by the laws of the country concerned. A case in point may be religious intolerance, amounting to persecution, in a country otherwise secular, but where sizeable fractions of the population do not respect the religious beliefs of their neighbours. Where serious discriminatory or other offensive acts are committed by the local populace, they can be considered as persecution if they are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection.

Well-founded fear ‘Well-founded fear of persecution’ is now defined in s 5J of the Migration Act. It could be submitted that the country information indicates that the applicant faces very real and adverse consequences from the authorities if and when he returns to Iran. The standard of proof for the decision-maker on this issue is satisfaction in the mind of the decision-maker. However, the subject of that satisfaction is not whether the applicant will actually be persecuted upon return. Rather, it is satisfaction as to whether he has a well-founded fear that he will be persecuted upon return. This standard of satisfaction has been the subject of pronouncements by the High Court in a number of cases, including Minister for Immigration and Ethnic Affairs v Guo Wei Rong [1997] HCA 22 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ) where the majority discussed the meaning of the expression ‘wellfounded fear’ in the following terms: Conjecture or surmise has no part to play in determining whether a fear is wellfounded. A fear is ‘well-founded’ when there is a real substantial basis for it. As Chan [Chan Yee Kin v Minister for Immigration and Ethnic Affairs] (1989 87 ALR 412) shows, a substantial basis for a fear may exist though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or

[page 216] if it is mere speculation. In this and other cases, the Tribunal and the Federal Court have used the term ‘real chance’ not as epexegetic of ‘well-founded’ but as a replacement or substitution for it. Those tribunals will be on safer ground, however, and less likely to fall into error if in future they apply the language of the Convention while bearing in mind that a fear of persecution may be wellfounded even though the evidence does not show that persecution is more likely than not to eventuate.

b.

It could be argued that the threshold for a finding that a fear may be well-founded is, in the words of the majority, ‘far less than a 50 per cent chance that the object of the fear may eventuate’. It should be argued that the chance that the applicant will be subjected to persecution upon return is very strong and, certainly, much greater than 50%. If Karim’s claim for refugee status is unsuccessful, but he fears being returned to Iran, then ‘complementary protection’ claims must be considered. Basically, complementary protection is for people who are not refugees as defined in the Refugee Convention, but who also cannot be returned to their home country because of a real risk that they would suffer a certain type of harm that would engage Australia’s international non-refoulement (non-return) obligations. Section 36(2)(aa) of the Migration Act is the complementary protection arm of Australia’s protection obligations. Australia’s non-refoulement obligations, in addition to those under the Refugee Convention, are derived from international human rights conventions to which Australia became a party in the 1980s and 1990s. These are the International Covenant on Civil and Political Rights and its Second Optional Protocol Aiming at the Abolition of the Death Penalty, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Non-refoulement obligations may be engaged under these treaties where there are substantial grounds for believing that, as a necessary and foreseeable consequence of being

removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm where a person will be subjected to arbitrary deprivation of his or her life, the death penalty, torture, cruel or inhuman treatment or punishment, degrading treatment or punishment.

Question B25: Ali Hasan 4.52 a.

Suggested answers are as follows. Ali can apply for the medical treatment (subclass 602) visa (Sch 2 Pt 602.212(2)). Or he could seek an extension of his visitor visa. Ali should check whether his visa is subject to the 8503 ‘no further stay’ condition in which case he would need to seek a waiver before he could apply for another visa. [page 217]

b.

Ali can apply for permission to work if he becomes destitute due to circumstances beyond his control, he is unable to depart Australia and would otherwise become a charge on public funds (Sch 2 Pt 602.212(7) or Pt 602.314).

Question B26: Yessir Ararat 4.53 a.

Suggested answers are as follows. As an applicant for the carer visa, Yessir is eligible for a concessional visa application charge (Migration Regulations Sch 1 Item 1123B(2)(a)). Apart from the usual forms and fees etc, evidence must also be given that Yessir’s mother has sought the relevant medical assessment from Bupa Visa Medical Services (which is the prescribed health provider for this purpose (IMMI 14/085 and Migration Regulations Sch 1

b.

c.

d.

Item 1123B(3)(d)). Yessir would get the bridging C visa as his tourist visa had already expired when he applied for the carer (subclass 836) visa. It would be granted to him automatically upon application (Sch 1 Item 1303(3)(d) and Sch 2 Pt 030.212(2)). He will need to apply separately for a bridging C visa with permission to work, and will need to show a compelling need to work such as financial hardship (Sch 2 Pt 030.212(3), reg 1.08(a)). The bridging B visa is the bridging visa which permits travel outside Australia and re-entry to Australia. However, one needs to hold a bridging A or bridging B visa to be eligible for the bridging B visa. He cannot apply for a bridging B visa as he holds a bridging C visa (Sch 2 Pt 020.211).

Question B27: Delia Llama 4.54 a.

b.

Suggested answers are as follows. Since the temporary work (long stay activity) (subclass 401) visa has been repealed, Delia should apply for the temporary activity (subclass 408) visa in the religious worker stream. Delia would get a bridging A visa when she applies for this visa as her previous substantive 401 visa is still valid when she applies for the new 408 visa (Sch 2 Pt 010.211(2)). The bridging A visa would have the same work conditions as her existing temporary (long stay activity) visa (Sch 2 Pt 010.611(4)). Being the holder of a bridging A visa, Delia is eligible for the bridging B visa for her travels (Sch 2 Pt 020.211), subject to the Minister being satisfied that her reasons for travel are substantial (Sch 2 Pt 020.212(2)).

Question B28: Nelson Mondoza 4.55 a.

Suggested answers are as follows. Nelson will get a bridging A visa when he applies for the protection visa as his student visa would still be valid, but his wife Winnie will only get a bridging [page 218]

b.

C visa as her substantive (tourist) visa will have expired by the time Nelson is able to apply for the protection visa. Nelson will get permission to work while he is waiting for his protection visa application to be processed (Sch 2 Pt 010.611(1)(b)), but Winnie will need to show that she has a compelling need to work before she can be granted permission to work (Sch 2 Pts 030.611 and 030.212(3)).

Question B29: Joh Bielkesen 4.56 a.

Suggested answers are as follows. The question stipulates the class of resident return visa, which is Class BB (Sch 1 Item 1128) which includes subclasses 155 and 157. However, as Joh has only spent a total of 180 days in Australia as a permanent resident in the last five years, he would not be eligible for the five-year resident return (subclass 155) visa (see Sch 2 Pt 155.212(2)). If Joh can demonstrate that he has substantial business, cultural, personal or employment ties to Australia which represent a benefit to Australia, he may be eligible for a subclass 155 visa but only with validity for one year (see Sch 2 Pt 155.212(3A)). Alternatively, he may be eligible for the three-month resident return (subclass 157) visa, if he can

b.

c.

d.

show compassionate and compelling reasons for his departure from Australia (Migration Regulations Sch 2 Pt 157.212(2)). Joh may be able to apply for the resident return (subclass 155) visa on the grounds that he has strong business ties with Australia which are of benefit to Australia, and he needs to be away from Australia because of that business (Sch 2 Pt 155.212(3A)) if he is applying in Australia and is in Australia. In this situation, he will most probably need to produce documentation about his business plans to grow peanuts, projected yield and anticipated export figures, evidence of any application or approval for business loans for him to start his project, evidence of any business and/or export negotiations with merchants etc. However, he will only be eligible for a 155 visa with a validity of one year (Sch 2 Pt 155.511(c)). Joh can apply for the resident return (subclass 155) visa as a member of his wife’s family unit, and also be entitled to the same visa that Flo has obtained (Sch 2 Pt 155.212(4)). However, although Flo’s 155 visa is granted for a period of more than one year, Joh will still only be eligible for a 155 visa with a validity of one year. The normal residence requirements for Australian citizenship are contained in the Australian Citizenship Act 2007. To qualify, a person needs to have stayed lawfully in Australia for four years immediately before the date of application and must include 12 months’ presence in Australia as a permanent resident before applying (Australian Citizenship Act 2007 s 22), although in these four years, a person is allowed to be away from Australia for up to 12 months, as long as the period of absence in the 12 months before the citizenship application is made does not exceed 90 days. However, on 15 June 2017, the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and

[page 219] Other Measures) Bill 2017 was introduced into Parliament. Among other proposed changes to the citizenship regime, an applicant will need to have been present in Australia as a permanent resident for four years. Furthermore, the applicant must not have spent more than 365 days outside Australia in that four-year period as a permanent resident.

Question B30: Grace Whitelaw 4.57 a.

b.

c.

Suggested answers are as follows. Grace needs to change her visa (presumably a tourist visa) to a special category (subclass 444) visa (subject to her not being a ‘behaviour concern non-citizen’ or ‘health concern non-citizen’) when she obtains New Zealand citizenship, if she wants to continue to stay in Australia (‘behaviour concern non-citizen’ and ‘health concern non-citizen’ are defined in regs 5.15 and 5.16). She can present her New Zealand passport to any DIBP office in Australia and her status would change from that of tourist to special category visa holder (Migration Act s 32(2)(a) unless not required to be shown under s 32(3)). As a special category visa holder, she can stay in Australia indefinitely as long as she remains a New Zealand citizen (Sch 2 Pt 444.511). However, New Zealand citizens who arrived in Australia after 26 February 2001 are no longer regarded as ‘eligible New Zealand citizens’ (see reg 1.03), hence she would only be regarded as a temporary resident and can access Medicare but no other Australian pensions or benefits. Garth can apply for the New Zealand citizen family relationship (subclass 461) visa (Sch 2 Pt 461.212(2)). This

visa is granted for five years, but he can obtain extensions of the visa as long as he continues to be a member of Grace’s family unit (Sch 2 Pt 461.511).

[page 220]

Suggested answers to questions on Subject C: Visa compliance, cancellation and review Question C1: Dulbar Singh 4.58 a.

b.

c.

Suggested answers are as follows. Cancellation of Dulbar’s visa would have been considered under the Migration Act s 116(1)(a) or (1)(b) where the circumstances which permitted the grant of his visa no longer exist or, alternatively, where he has not complied with a condition of the visa. If in Australia, cancellation of Vijay’s visa would have been considered under the Migration Act s 116(1)(c), on the basis that another person (Dulbar) who is required to comply with a condition of the visa has not complied. Alternatively, Vijay’s visa could be cancelled under the consequential cancellation provisions in s 140(1). That is, Vijay’s visa can also be cancelled because of his status as a member of Dulbar’s family unit, with Dulbar’s visa having been cancelled under s 116. If he was outside Australia, cancellation of Vijay’s visa would be considered under the Migration Act s 128. Vijay’s visa could be cancelled under the consequential cancellation provisions in s 140.

Question C2: Ngo Dinh Nhu 4.59

Sections 104 and 105 of the Migration Act require a non-

citizen to inform the Minister of any change in circumstances or any incorrect answer previously given on an application form or passenger card. As Nhu has not advised Immigration of her change in circumstances and, as she provided incorrect information on her incoming passenger card, her visa was liable to cancellation under s 109.

Question C3: David Higson 4.60 a. b.

c.

Suggested answers are as follows. David’s 820 visa would most likely be cancelled under s 134B of the Migration Act. Section 11 of the Freedom of Information Act 1982, gives persons, whatever their immigration status, a legally enforceable right to access personal information held by a government department. Given the sensitive and confidential nature of the information, the relevant documents will most likely be classified as exempt documents as they would be documents affecting national security, defence or international relationships (Freedom of Information Act 1982 s 33 and Migration Act s 503A). [page 221]

Question C4: Freddy Kruger 4.61 a.

Suggested answers are as follows. As long as the cancellation was not imposed by the Minister personally, Freddy can appeal against the s 501 visa cancellation decision to the Administrative Appeals Tribunal (AAT) (s 500(1)(b)). The time limit for him to lodge the AAT

b. c. d.

appeal is nine days after he has been notified of the s 501 decision (see s 500(6B)). He can seek judicial review if his appeal to the AAT is unsuccessful. Class actions against immigration decisions are no longer possible (see s 486B(4)). If the cancellation was imposed by the Minister personally under subs (3), Freddy has no right of merits review but does have a right of judicial review; although he will find it exceedingly difficult to identify grounds upon which to rely.

Question C5: Harriet Harilela 4.62 a.

b.

c.

d.

Suggested answers are as follows. As from 1 July 2016, student visas are collapsed to only two subclasses. Harriet would be applying for the 500 student visa, and the old ‘assessment level’ system is replaced by an ‘immigration risk rating’ system. The risk rating is calculated by combining the risk rating of the country of citizenship and the education provider to determine the English language level and financial capacity requirements. Mrs Harilela can apply for a student guardian (subclass 590) visa to come and care for her daughter until Harriet turns 18. The forms to be used for this purpose are form 157G (application form) and form 157N (nomination form) (Sch 1 Item 1222(1)(ca) and (3)(f)). Children aged under six can be included in an application for the student guardian visa, the Minister being satisfied that there are compelling and compassionate reasons (Sch 2 Pts 590.213, and 590.312). Mrs Harilela can include Sanjay in her application for the student guardian visa. In the National Code Standard 7 under the ESOS Act, schools should not release their students within the first six months,

e.

and receiving schools should not knowingly enrol students from another school, until they have completed at least six months of their principal course at that school, unless assessed and approved by the current provider within the guidelines of the relevant policies. Harriet will need to complete form 157A (Sch 1 Item 1222(1) (a)). There are no Immigration forms for changing schools as the old form 157C has been abolished since 1 July 2007 when the ESOS Act National Code came into effect. As for permission to work, all student visas issued after 26 April 2008, automatically carry the 8105 condition which allows students to work up to 40 hours a fortnight during any fortnight (starting on a Monday) when their course of instruction is in session. [page 222]

f.

In this situation Camembert Girls School must operate under the National Code and provide counselling to Harriet as she is not achieving the required attendance record. When this fails, the school must give the student notice that they intend to report them to the DIBP for unsatisfactory course attendance and give them an opportunity to have this decision reviewed (Standard 11 of National Code). Before 13 April 2013, the school would have sent Harriet a s 20 notice under the ESOS Act, requiring her to report to Immigration to explain her breach within 28 days of the date of the notice. If she didn’t, then her student visa would have been automatically cancelled on the expiry of the 28-day period after the notice was sent under s 137J of the Migration Act. However, from 13 April 2013, the school can no longer issue such notices under s 20 of the ESOS Act. This means that student visas can no longer be automatically cancelled under s 137J. All subclass

g.

571 visas have condition 8202 as a mandatory condition (Sch 2 Pt 500.611(1)(a)). By leaving the school, Harriet has breached her course attendance requirements and course progress requirements under condition 8202. As such, her visa may be cancelled under s 116(1)(b). Furthermore, if she is found to be a non-genuine student, her visa could be cancelled under s 116(1)(fa)(i) of the Act. Before her visa is cancelled, she would be given notice of the proposed cancellation and an opportunity to respond (Migration Act ss 119 and 121). Work is defined in the Migration Regulations reg 1.03 to be any activity which, in Australia, would normally attract remuneration. As a fish-fryer in a fish-and-chip shop would normally expect to be paid, Harriet would be guilty of working even if she wasn’t getting paid. The Migration Act, at s 245AG, also defines ‘work’ to be any work, whether for reward or otherwise and imposes a fine not exceeding $21,000 on any non-citizen breaching visa work conditions (s 235).

Question C6: Fu Man Chu 4.63 a.

Suggested answers are as follows. Fu is subject to s 48 of the Migration Act because his student visa was refused after his previous student visa had expired. However, since 14 September 2009, persons subject to s 48 can apply for an onshore partner visa (reg 2.12(1)(a)–(b)), as long as the applicant had not had a visa refused or cancelled on character grounds and had not previously been refused a partner visa (Sch 1 Item 1124B(3)(e)). However, he only has two working days to apply after he has been detained unless he asks for an extension, in which case he may be given a further five working days to apply (Migration Act s 195(1)).

b.

Fu can apply for a protection visa despite being subject to s 48 (see reg 2.12(1)(c)). However, he should only do so if he has protection claims. There is no time limit for him to apply for the protection visa even after his detention (s 195(2)), and despite him being subject to s 48 (reg 2.12). [page 223]

Question C7: Placido Flamingo 4.64 a.

b.

c.

d.

Suggested answers are as follows. Schedule 2 Pt 500.217(1) provides that his application for the student (subclass 572) visa is subject to condition 4013. Schedule 4 cl 4013(1)(a) and (2)(a) provide that he is subject to a three-year exclusion period as he was caught working without authority, unless there are compelling or compassionate circumstances affecting the interests of Australia or of an Australian citizen or permanent resident to justify waiving the three-year exclusion (Sch 4 cl 4013(1)(b)). For a partner (subclass 309) visa, the only exclusions which might apply are in Sch 5 cl 5001 or cl 5002, which apply to persons who have been deported or removed from Australia (Sch 2 Pts 309.226 and 309.326). But as he was neither deported nor removed, these would not apply to him. Serial sponsorship restrictions may apply if Maria was granted a partner visa herself within the last five years as she is barred from sponsoring partners for five years from the date of her own application (reg 1.20J(1)). Pregnancy may be argued to be a compassionate factor for the waiver of the serial sponsorship restriction (but it will be up to the Minister to decide whether this constitutes a compassionate factor: reg 1.20J(2)).

Question C8: Win Shum and Lu Shum 4.65 a.

b.

c.

Suggested answers are as follows. Having located Bozo is not in itself a ground to be released from detention for Win Shum and Lu Shum. However, it is Parliament’s intention that minors should only be detained as a last resort (Migration Act s 4AA). Under s 197AB, the Minister may, in the public interest, also issue a ‘residence determination’ to allow families, particularly those with children, in immigration detention to reside at a specified place other than in detention. However, while the person is residing at a specified place on a residence determination, he or she is still regarded as being in immigration detention (s 197AC). Appeals on citizenship matters are heard by the AAT (s 52 of the Australian Citizenship Act 2007). As Lu Shum is not otherwise eligible for any visa (his mother Win Shum had come to Australia on an ETA and was most probably unlawful by the time Lu Shum was born), Lu Shum would have been born an unlawful non-citizen as well (Migration Act s 78). He can apply for a bridging E visa during the appeal of the citizenship decision, either at the Tribunal stage or any subsequent judicial review (Sch 2 Pt 050.212(4AAA)(b)). They can probably seek a DNA test to prove parentage of Bozo to Lu Shum. However, if Bozo is unwilling to do the test, could they seek a court order to compel Bozo to do it? In Forster and Minister for Immigration [2011] AATA 468, the mother was able to convince the AAT that her baby’s father was an Australian citizen, despite the alleged father refusing to have anything to do with the baby. [page 224]

Question C9: Paul Domingo 4.66 a.

b.

c.

Suggested answers are as follows. It is a Pt 5-reviewable decision. The Migration Act s 338(7) provides that a decision to refuse a visa where the applicant has indicated an intention to visit an Australian citizen or permanent resident who is a close relative, and where that relative was named in the application, is a reviewable decision. In this case, Paul’s sister, Anita, is the one who has standing to appeal (s 347(2)(c)). The fee for an AAT review is $1540, which is subject to a biennial increase. The correct fee as of 1 July 2017 is $1731, which must be paid at the time of lodgment of the review application (Migration Regulations reg 4.13(1)); 50% is refundable if the review application is successful (reg 4.14(1)). If payment of $1731 has caused or is likely to cause severe financial hardship, the fee may be reduced (reg 4.14(1)). Anita must lodge the review application within 70 days of notification of the decision (reg 4.10(1)(c)). As time of notification by mail is taken to be 21 days (Migration Act s 494C(4)(b)), Anita has 70+21 = 91 days from the date of the decision letter to lodge her appeal with the AAT. There are provisions for expedited review by the AAT, on the basis that Paul applied for the visitor visa so that he could attend his sister’s wedding. Upon receipt of the review application, the Tribunal must immediately review the application and notify the result as soon as possible (reg 4.23).

Question C10: Sergio Mendese 4.67 a.

Suggested answers are as follows. Criterion 4020 pertains to ‘fraud’. In particular 4020(2A) and

b.

c.

(2B) pertains to ‘identity fraud’ which carries an exclusion period of 10 years. The refusal of Sergio’s protection visa application is a Pt 7-reviewable decision under the Migration Act s 411(1)(c). As Sergio is the subject of the decision and in the migration zone, he must make the review application to the AAT himself (see s 412(2) and (3)). As Sergio was in immigration detention when the letter of notification was handed to him, the time limit for Sergio to lodge the appeal is seven working days from notification of the refusal decision (reg 4.31(1)). The fee for the AAT appeal is $1540, payable within seven days after the Tribunal has made a decision to uphold the primary decision (see reg 4.31B(1)(c) and (2)). However, this fee is subject to a biennial increase (reg 4.31BA). The correct fee from 1 July 2017 is $1731. Under s 427(3)(a) of the Migration Act, the AAT may summon Melitta to attend the hearing and give evidence as appropriate. Failure of a witness to appear without a reasonable excuse is a criminal offence punishable upon conviction by a state magistrates’ court exercising federal jurisdiction. A maximum penalty of six months’ imprisonment may be imposed (s 432(1) and (1A)). [page 225]

d.

Sergio cannot appeal against the deportation order, made under the Migration Act s 200 and s 210, to the AAT (s 500(1)(a)) because s 500(2) restricts eligibility for appealing to the AAT to Australian citizens or unlawful non-citizens whose continued presence in Australia is not subject to any limitations as to time imposed by law. In this scenario, the only avenue of appeal Sergio has against the deportation order is judicial review.

e.

If Sergio wishes to pursue judicial review avenues, he must lodge his appeal to the Federal Court in the case of the deportation order and the Federal Circuit Court in the case of the AAT refusal; in each case within 35 days of the date of the decision (see s 477(1)). The court can extend that period upon application if it considers it in the interests of the administration of justice to do so (see s 477(2)).

Question C11: Lin Tung Hoa 4.68 a.

b.

c.

Suggested answers are as follows. As Lin’s student visa was cancelled under s 133A, he does not have a right of appeal to the Migration and Refugee Division of the AAT (Migration Act s 338(3)(c)). In this situation, Lin can only pursue judicial review. As Lin’s application for the protection visa was refused on credibility grounds (that is, the delegate was not satisfied that he fitted the criteria for a protection visa), he may seek merits review in the AAT. The first issue is to identify whether he fears persecution for one or more of the following reasons — race, religion, nationality, membership of a social group and/or political opinion. Is the alleged persecution for religious reasons? Although the denomination is engaged in conflict with the government, it does not appear to be for religious reasons but rather as a form of objection to the cruel policies of the government in the training and use of animals for military purposes. This is a form of political protest and political opinion may be the appropriate ground. The problem with this is that Hoa, before he came to Australia, was not interested in the issue of animal cruelty. The answer is that the authorities were patrolling the streets looking for people of his denomination because of the denomination’s political

activities and, as a result, he could claim perceived political opinion. The other basis of claim could be membership of a particular social group. The Myanmarian government perceived the denomination (clearly identifiable as a group) as being a political opponent and deliberately patrolled the streets looking for members of the group to harass. The authorities patrolled the streets not because of their proselytising religious activities but because they knew they were members of a dissident political group and could be found easily on the streets at weekends. The particular social group would need to satisfy the requirements of s 5L. Following the recent introduction of s 5J(4) into the Migration Act, ‘persecution’ must involve both ‘serious harm’ to the person, and systematic and discriminatory conduct. Section 5J does not include ‘significant economic hardship that threatens the person’s capacity to subsist’, which was an example [page 226] of ‘serious harm’ that was found previously in s 91R. As such, it now might be difficult to successfully argue that ‘financial penalties in the moderate to heavy financial range’ amount to ‘serious harm’. The second issue is whether or not the alleged persecution was carried out in furtherance of a law of general application and, accordingly, whether it satisfies the definition of persecution (see Applicant S v Minister for Immigration and Multicultural Affairs (2004) 206 ALR 242). The fact that the law was being used selectively against members of a particular group may be an answer if this issue is raised by the decision-maker. The remaining issue is that, if he wishes to use his

Australian onshore activities to strengthen his case, he is required by s 5J(6) to satisfy the decision-maker that he engaged in the conduct other than for the purpose of strengthening his refugee claims.

[page 227]

Suggested answers to questions on Subject D: Applied migration law and practice Question D1: Abdullah Bin Aladdin 4.69 Abdullah could not include his wife and children in a protection visa application because they would not be in Australia at the time of lodgment (Migration Act s 36 and Migration Regulations Sch 1 Item 1404(3)(a)–(c)). To be granted the safe haven enterprise (subclass 790) visa, Abdullah must have indicated in writing an intention to work or study while accessing minimum social security benefits in a prescribed regional area (Migration Regulations Sch 1 Item 1414(3) (e)–(4)). The new reg 2.06AAB permits Abdullah to apply for a range of mainstream visas after having worked 42 months in a regional area and having not received any social welfare benefits during that time. However, the safe haven enterprise (subclass 790) visa does not provide for family reunion. Abdullah will have to wait until he gets one of the mainstream visas before he can sponsor his wife and children to join him from Afghanistan.

Question D2: Arriveda Ciroma 4.70 a.

Suggested answers are as follows. Arriveda can apply for the prospective marriage (subclass 300) visa, in which case Mario, being the sponsor, would need to complete a sponsorship form 40SP, and Arriveda would complete visa application form 47SP (Sch 1 Item

b.

1215(1)). The visa application charge is $7000 as at 1 July 2017 (Migration Regulations Sch 1 Item 1215(2)(a)). Arriveda, now being in Australia, should apply for the onshore partner visa (subclasses 820 and 801, Classes UK and BS). Mario would still complete sponsorship form 40SP, but by completing form 47SP (Sch 1 Item 1214C(1)) and paying the one visa application charge of $7000 as at 1 July 2017 (Sch 1 Item 1124B(2)(a)(vii) and (2)(b)), Arriveda is actually applying for both the partner (temporary) (subclass 820) and the partner (permanent) (subclass 801) visas together (Sch 1 Item 1214C(3)(a)). As for Gina, who is in Italy, she should apply for the dependent child (subclass 445) visa once Arriveda gets her 820 visa. She needs to be sponsored by Mario, and will need to submit application form 918 and pay a visa application charge of $2415 as at 1 July 2017 (Migration Regulations Sch 1 Item 1211(1) and (2) and IMMI 15/030). After arrival in Australia, Gina is included as a secondary applicant in Arriveda’s application for permanent residence by completing form 1002 and no separate visa application charge is payable (Sch 1 Item 1124B(1)(a) and (2)(a)(i)). [page 228]

c.

d.

As Arriveda was subjected to family violence perpetrated by Mario, she and Gina, now in Australia, can still proceed to the partner (permanent) (subclass 100) visa by using family violence provisions under the Migration Regulations Sch 2 Pt 801.221(6). Family violence provisions are described in the Migration Regulations Pt 1 Div 1.5 (regs 1.21–1.27). For a non-judicially determined claim of family violence, the acceptable evidence to prove family violence under reg 1.23(9)(c) and reg 1.24(b) is now prescribed by legislative

e.

instrument IMMI 12/116. The evidence includes: • reports by medical practitioner or nurse; • police report or witness statement to a police officer; • report by child welfare authority officer; • letter or assessment report by a women’s refuge or family violence crisis centre; • statutory declaration by a social worker; • statutory declaration by a psychologist; • statutory declaration by family consultant or court counsellors under the Family Law Act 1975; and • statutory declaration or letter from school counsellor or school principal. As the matter has not been judicially determined, Migration Regulations reg 1.23(10) states that if the Minister is not satisfied with the evidence provided by Arriveda, he can refer her to an ‘independent expert’, which is specified as LSC Psychology in IMMI 13/023, for an opinion as to whether she has in fact suffered family violence.

Question D3: Brigitte La Deux 4.71 a.

Suggested answers are as follows. Previously, before 13 April 2013, the school would have sent Brigitte a s 20 notice under the ESOS Act, requiring her to report to Immigration and explain her breach within 28 days of the date of the notice. If she didn’t, then her visa would have been automatically cancelled under s 137J of the Migration Act. However, from 13 April 2013, the school can no longer issue s 20 notices and student visas can no longer be cancelled under s 137J. Under the National Code (Standard 1), the school would have to provide counselling to Brigitte for failing to satisfy attendance requirements. If the school intends to report Brigitte to DIBP, they will need to

b.

give her notice and an opportunity to have the decision reviewed. Brigitte’s visa could be cancelled under s 116(1)(b) for breaching her visa condition (8202) or under s 116(1)(fa) (i) if she is found not to be a genuine student. A ‘de facto partner’ is defined in the Migration Act s 5CB(1) to be the same-sex or opposite-sex partner of another person, and the two are in a de facto relationship as defined in s 5CB(2), that is, they have a genuine and continuing mutual commitment to each other to the exclusion of all others, and they live together or not apart on a permanent basis, and they are not related to each other by family (as defined in s 5CB(4)). Migration Regulations reg 2.03A prescribes that both parties must be over 18 and have been in the de facto relationship [page 229]

c.

for at least 12 months, unless compassionate and compelling circumstances exist or unless the relationship has been registered under relevant state laws. Regulation 1.09A(3) further prescribes the matters the Minister will take into consideration when determining the bona fides of the relationship, which would include things like financial arrangements, household arrangements, social aspects, and the nature of the parties’ commitment to each other. Brigitte will probably have difficulty getting Bazza to sponsor her, but if she can and the application for the onshore partner visa is rejected (as it most likely will be), the decision is reviewable by the AAT (Migration Act s 338(2)(a) and (b)) within 21 days of the decision (reg 4.10(1)(a)), plus a further seven working days for the postal delivery of the decision (s 494C(4)(a)). She can apply for review personally (s 347(2)), and the review application fee is $1540 (reg 4.13(1)), which

d.

is subject to a biennial increase. The correct fee as of 1 July 2017 is $1731. 50% of the fee may be waived or refunded by the Tribunal Registrar on grounds of financial hardship (reg 4.13(4)) or if the review application is successful (reg 4.14(1) table item 5 and 6). The migration agent would have breached s 240(1) of the Migration Act, penalty for which is $100,000 or 10 years’ imprisonment or both. Maude, as the marriage celebrant, would also have committed the similar breach, except she may be able to use as a defence the ground that she believed on reasonable grounds that the marriage was a genuine one (s 240(3)). Brigitte would have breached s 243(1) and Cecil would have breached s 243(3); the penalty for each would be two years’ imprisonment. And as for the ‘couple of kids from uni’ who signed the statutory declarations, they would have breached s 245. If they did so knowing the relationship to be contrived, they could each face 12 months’ imprisonment (s 245(1)), and if they signed the declarations recklessly without taking steps to ascertain whether the relationship was genuine, they could each be fined $25,200 (s 245(3)). In addition, the agent would have breached various clauses in the Migration Agents Code of Conduct, including cls 2.1, 2.4, 2.9, 2.17 and 2.23.

Question D4: Forrest Gumpf 4.72 a.

Suggested answers are as follows. Mrs Georgia Gumpf needs to complete form 40 (sponsorship), and Forrest would complete form 47OF (application) (Sch 1 Item 1123A(1), IMMI 17/016). As Forrest lives in the US, the application must be lodged at the nearest Australian embassy or consulate in the US (IMMI 17/016).

b.

c.

The remaining relative (subclass 115) visa requires an assurance of support (Sch 2 Pt 115.225). As an assurance of support can be for up to two adults and any number of minor children (aged under 18), and as Forrest and Jenny only have two daughters both under 18, only one assurance is required (Social Security (DEEWR) (Assurance of Support) Determination 2008, para 7(3)). Yes, Danny can act as assurer as the assurer can be any individual or body (business or organisation) and does not need to be related to the sponsor or visa applicant. The income requirement for Danny to act as assurer is contained in the AOS Determination at para 11, based on his assessable income for the [page 230]

d. e.

f.

g.

current financial year and one of the past two financial years, and evidenced by pay slips, group certificates, business financial statements, notice of tax assessments, etc. Yes, AOS Determination, at para 7(4), allows a joint assurance to be given by up to three individuals. Bond money is payable only in respect of visa applicants aged 18 or over (Social Security Act 1991 s 1061ZZGD). For the remaining relative visa, the bond money is $5000 for Forrest (the primary applicant) and $2000 for Jenny (the secondary applicant) (AOS Determination paras 16(c) and 16(d)). No bond money is payable for their daughters aged under 18. Forrest and Jenny would no longer qualify as remaining relatives now that Jenny’s brother has re-appeared, as they must not have any near relatives living outside Australia (Migration Regulations reg 1.15(1)(c)). The Social Security Act 1991, at various sections, imposes a

h.

‘new arrival waiting period’ of 104 weeks before a migrant can receive social security benefits. Austudy is a form of payment recoverable under the Social Security Act (s 1061ZZGA) and the AOS Determination (para 5(1)). Any Austudy received by Marylou and Suzie will be recovered from the bond money (Social Security Act s 1061ZZGG).

Question D5: Manuel La Pagayo 4.73 a.

Suggested answers are as follows. The refusal of Manuel’s visitor visa application is a decision reviewable by the Migration and Refugee Division of the AAT under the Migration Act s 338(7). However, Manuel cannot himself appeal against the decision as he has no standing, being an offshore applicant. So his sister Ma Teresita will be the one to appeal to the AAT (s 347(2)(c)). The time limit for lodging the AAT appeal is 70 days after Manuel has received the notification of decision from the Australian Embassy Manila (reg 4.10(1)(c)). But as the decision was posted to Manuel in the Philippines, the period for mail delivery is 21 days (Migration Act s 494C(4)(b)). Hence Ma Teresita has effectively 70+21 = 91 days from the date of the refusal letter to lodge the appeal with the AAT. The fee for AAT appeal is $1540, which is subject to a biennial increase. The correct fee as of 1 July 2017 is $1731, which must be paid at the time of lodgment of the review application (Migration Regulations reg 4.13(1)), unless Ma Teresita claims an exemption on grounds of extreme financial hardship (reg 4.13(4)). Under the Migration Regulations at reg 4.23, the AAT must review immediately upon receipt an application for review of a decision to refuse a ‘close family visitor’ visa, where the applicant has identified in the visa application an intention to

b.

visit a close family member in Australia and to attend a family event of significance and with which the applicant is directly connected, and where the Minister has rejected the application on bona fide grounds. Upon the matter being remitted to the DIBP, 50% of the fee paid will be refunded. The 8503 condition in Sch 8 to the Migration Regulations says the visa holder cannot make an application for any substantive visa, except a protection [page 231]

c.

d.

visa, in Australia (Migration Act s 41(2)(a)). Nevertheless, the Migration Act also provides, at s 41(2A), that the Minister may waive this condition in prescribed circumstances. The prescribed circumstances in this instance, and which Manuel must be able to prove, are compelling and compassionate circumstances which have developed since his arrival in Australia, over which he had no control, and which caused a major change in his circumstances (Migration Regulations reg 2.05(4)(a)). Zenaida, having been sponsored for a fiancée visa herself three years ago, would be subject to the ‘serial sponsorship’ provisions of reg 1.20J, which say if she was sponsored for a partner or prospective marriage visa and a visa was granted as a result, then she is barred from sponsoring another person under a partner or prospective marriage visa for five years from the time of her own application. As Manuel is in Australia, he would be applying for the carer (subclass 836) visa. He would need to meet the requirements of reg 1.15AA and Sch 1 Item 1123B(3)(d), that the Australian resident (Zenaida) must be suffering from a physical, intellectual or sensory impairment, certified by an accredited health service provider (Bupa Visa Medical

e.

Services) to be at least 30% of the Impairment Table and where there is no other Australian relative or welfare, hospital, nursing or community services in Australia who could provide support. Manuel and Zenaida’s circumstances do not suggest that this is the case, hence the chances of Manuel being able to claim to be Zenaida’s carer are remote. The 1951 UN Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees, at Art 1A(2), defines a refugee to be a person who: … owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

However, the Migration Act, at s 5H, has redefined the meaning of ‘refugee’ in the Australian context.

Question D6: Brittney Pears 4.74 a.

Suggested answers are as follows. Ms Pears is unable to apply for the medical treatment visa unless she applies for a waiver of the 8503 condition first. If she does not obtain a waiver, the application would not be a valid application (see ss 46(1A), 41(2)(a) and 41(2A)). However, it is noted even with the waiver of the 8503 condition, Ms Pears still has the 8531 condition, which says she must not remain in [page 232] Australia at the conclusion of her visa period. Therefore her

b.

chances of being permitted to apply for the medical treatment visa would be minimal. Perhaps if she is unfit to travel, she may be granted a bridging visa to enable her to stay until after the birth of her child. Below is a submission for a waiver of the 8503 condition. The correspondence should be sent on the migration agent’s letterhead to the DIBP.

Dear Sir/Madam, RE: VISA CONDITION 8503 — NO FURTHER STAY, WAIVER REQUEST APPLICANT: Ms Brittney Pears DATE OF BIRTH: VISA DETAILS: PASSPORT DETAILS: DATE OF ARRIVAL: We advise that we act for the applicant who wishes to make this application to waive the 8503 condition attached to her visitor (subclass 600) visa. She is currently approximately 8½ months pregnant, and is presently unfit to travel. She is therefore seeking to apply for a medical treatment visa, to enable her to remain in Australia for the birth of her child and the immediate postnatal care. Background We are instructed that the applicant arrived in Australia to visit family members who live in Australia. Although several months pregnant at the time of arrival in Australia, the applicant did not envisage that there would be any difficulty in her travelling prior to the birth of her child. She booked her trip with the view to depart Australia before the expiry of her visa and at all times intended to comply with her visa obligations. However, now heavily pregnant with an expected delivery date shortly, she has been assessed as unfit for travel by her treating physician. Further, as she is now more than 32 weeks pregnant and her doctor has assessed her as unfit for travel, Air Fiji will not permit her to fly. Their current policy only permits pregnant women more than 32 weeks pregnant to fly if cleared in writing by their doctor as fit for travel. Consequently the applicant is seeking to apply for a waiver of her ‘8503 — No further stay’ visa condition so she can apply for a subclass 602 [page 233] medical treatment visa, that will enable her to remain in Australia for the birth of her child and the ensuing six-week post-natal period.

We appreciate that Ms Pears’ visitor (subclass 600) visa was granted in the sponsored family visitor stream and, in addition to the 8503 condition, also carries the 8531 condition. Application We submit that pursuant to reg 2.05(4) of the Migration Regulations 1994, for the following reasons since the applicant’s visa was granted, a variety of compelling and compassionate circumstances have developed over which she had no control and that resulted in a major change to the applicant’s circumstances: For subsection 41(2A) of the Act, the circumstances in which the Minister may waive a condition of a kind described in paragraph 41(2)(a) of the Act are that: (a) since the person was granted the visa that was subject to the condition, compelling and compassionate circumstances have developed: (i) over which the person had no control; and (ii) that resulted in a major change to the person’s circumstances; and (b) if the Minister has previously refused to waive the condition, the Minister is satisfied that the circumstances mentioned in paragraph (a) are substantially different from those considered previously; and (c) if the person asks the Minister to waive the condition, the request is in writing. It is submitted that the medical assessment of the applicant as being unfit to travel represents a major change in circumstances. Although the applicant was pregnant at the time of the visa application, grant and travel to Australia, she was not precluded from travelling by either her doctor, or the airline carrier, Air Fiji. Further, the policy of Air Fiji regarding pregnant women did not preclude her return to Fiji at the conclusion of her stay in Australia. Air Fiji’s policy with regard to pregnant women states that women who are more than 32 weeks pregnant can fly with the carrier if they are certified fit to travel by their doctor, otherwise passengers will not be permitted to board. [page 234] Subsequently we submit that the applicant’s assessment by her physician at the Royal Women’s Hospital, Ballarat as now being unfit to travel represents a major change in her circumstances, as although at an advanced stage of her pregnancy, as a young and healthy woman the applicant considered she would be able to carry her unborn child to ‘full term’ and consequently would be fit to return home at the conclusion of her visit to Australia and prior to the expected delivery date of her child. However, the recently obtained medical opinion from her treating doctor at the Royal Women’s Hospital has asserted that she cannot travel and would carry a significant risk of complications for the final weeks of her pregnancy and complications regarding the birth of her child. We reiterate that although the applicant was pregnant at time of visa grant, she was still fit to travel and there was no indication that she could not return home. She has now been certified as unfit to travel and it is submitted that this

represents a major change in the applicant’s circumstances, according to reg 2.05(4)(a)(ii). Moreover, it is submitted that the change in circumstances was beyond the control of the applicant. First, although aware of her pregnancy, she was unaware she would receive an assessment from her physician which says that she is unable to travel. Second, because of the assessment by her physician, the airline will now not permit her to board any of their aircraft without a medical travel clearance. Both are independent decisions that now prevent the applicant from returning home and are clearly outside her direct control. It is submitted that the changes in circumstances that have arisen represent compelling and compassionate circumstances. PAM3: Div 1.2 reg 2.05 cl 19 refers to types of circumstances envisaged. We rely in particular on cl 19.2. 19.2 Unfitness to Travel Examples: • A situation in which a visa holder has an accident, falls seriously ill or contracts a serious medical condition after arriving in Australia, such that it would be unreasonable to expect the person to leave until they are considered fit to travel. • A wish to undergo elective surgery would not satisfy requirements as the new circumstances are within the visa [page 235]

•

holder’s control. They should be advised to apply from outside Australia for a UB-602 medical treatment visa. Complications associated with pregnancy or childbirth, as attested to by the written evidence of a medical professional might, in individual cases, bring the visa holder within the waiver provisions.

We submit that the imminent birth of the applicant’s child, and the complications that may arise should she travel, fall within the waiver provisions as outlined in PAM3; Div 1.2 reg 2.05 cl 19.2 Item 3, that refer to complications associated with pregnancy or childbirth. Her doctor has outlined that she is unfit to travel, as the return flight to Fiji at such an advanced stage in the pregnancy would jeopardise the health of both the applicant and her unborn child. Further it would also be unsafe to travel with her newborn child within the first six weeks after his/her birth. Travel within this period could potentially cause significant risk to the health and safety of the applicant and her child. The applicant is not seeking to remain in Australia permanently. She has an established life in Fiji where she is settled and close to family and friends. She fully intends to return to Fiji to raise her child. She is only seeking a medical treatment visa to remain in Australia for the birth of her child, and the ensuing post-natal care, of approximately six weeks, to ensure neither her, nor her child’s, wellbeing is jeopardised. She intends to return home as soon as it is safe for both her and her child to travel. Request In view of the applicant’s particular circumstances, the health risk she faces and

the potential harm that may be caused to her unborn child should she be forced to return to Fiji prior to the birth of her child, particularly at this advanced stage of pregnancy, we request that the 8503 no further stay condition attached to the applicant’s visitor visa be waived so that the applicant may remain in Australia to make an application for a medical treatment visa. Yours faithfully Agent name MARN

[page 236]

Question D7: Mr Perez 4.75 Good communication is essential to professional practice. In that respect it is fundamental that you understand the client and that the client understands you. The first step would be to assess how much you, as the agent, can understand the client and how much the client can understand you. An agent should always use qualified interpreting services. Code of Conduct cl 3.6 provides that a registered migration agent must ensure that clients have access to an interpreter if necessary. There are problems with using a family member as they may not be impartial and may not be accredited. Clause 3.1 covers confidentiality. The issue here is that if Mr Perez’s brother acts as an interpreter you cannot be assured that your discussion will remain confidential. A registered migration agent must also act in the client’s best interests, and deal with the client competently, diligently and fairly (cl 2.1).

Question D8: Ms Winslow 4.76 a.

Suggested answers are as follows. Section 314(2) of the Migration Act 1958 states that a

registered agent must conduct herself in accordance with the prescribed Code of Conduct. Section 303 of the Migration Act 1958 provides the power for MARA to sanction agents who do not comply and an agent’s repeat registration can also be refused under s 290. The various states and territories have fair trading laws. Australian Capital Territory — Fair Trading Act 1992; New South Wales — Fair Trading Act 1987; Northern Territory — Consumer Affairs and Fair Trading Act; Queensland — Fair Trading Act 1989; South Australia — Fair Trading Act 1987; Tasmania — Fair Trading Act 1990; Victoria — Fair Trading Act 1999; Western Australia — Fair Trading Act 1987. We are generally referring to the WA provisions in this question. An agent should not provide advice to a client which is not accurate or reliable (see cls 2.1(b), 2.3 and 2.7). The question is whether the person is a client or not. In Hudson and Migration Agents Registration Authority [2004] AATA 1007, the AAT said a person becomes a client when they utilise the services of a migration agent, whether or not a fee has been paid. In addition, an agent should take care as the law of torts or negligence means an agent is liable for statements or advice even where there is no contractual relationship. In addition consumer legislation provides that in providing services professionals must be providing services with due care and skill (for example, s 40 Fair Trading Act (WA)). The agent could perhaps modify her website so that it states that a person may be eligible for a visa. She needs to have her website reviewed so that she is acting in accordance with the Code and with the Act and make sure she is not making negligent statements or breaching the law. [page 237]

b.

c.

Breaches of the Code of Conduct regarding the Ahmed file: • Failed to treat the client competently, diligently and fairly, by failing to perform services for which he was paid and failing to refund any fees. Also the delay in doing anything for eight months is a breach of this clause: cl 2.1. • Failed to lodge an application on behalf of the sister despite entering an agreement to do so and he failed to act in accordance with his client’s instructions: cl 2.8. • Did not take all reasonable steps to maintain the reputation and integrity of the migration advice profession. Reasonable steps would have been to follow a client’s instructions, lodge the visa application as he had agreed to, or return funds if he was unable or unwilling to perform the agreed services: cl 2.23. • Did not act in a timely manner: cl 2.18. • Clauses 5.2 and 5.3 seem to be addressed by the RMA. • Regarding the failure to issue a receipt, nothing is really required by the Code. RMAs are required to have copies of all clients’ accounts and all deposits must be recorded in the clients’ account: in particular must keep a copy of any receipts (cl 7.4(c)). On the facts provided, Mr Jose would have been s 48 barred from applying for any other visa in Australia apart from a visa specified in reg 2.12 of the Migration Regulations, which includes partner visas and protection visas, as his student visa was cancelled. Breaches of the Code of Conduct regarding the Jose file: • Failure to act in the lawful or best interests of the client: cls 1.13, 2.1(a). • Failure to act competently, diligently and fairly: cl 2.1(b). • He must not have had a sound knowledge as required by cls 2.3 and 2.5.

•

d.

He has (by wrongly advising) held out incorrectly what the possibilities of success are: cl 2.7. • Failure to send letters/correspondence: cl 2.8. • May (possibly) have submitted false information in support of protection visa: cl 2.9. • Failure to obtain written acknowledgment from the client of the agent’s written advice that the application is grossly unfounded: cl 2.17. • Failure to send a statement in accordance with cl 5.2 to the client before work commenced. • Failure to send statement of services in accordance with s 313 of the Act and cl 5.5 means that he would not be entitled to get money from the client and any money that had been sent could be recovered. • Maintaining records: cl 6.1. • Records of clients’ account: cl 7.5. • Must notify the DIBP if giving assistance (s 312A Migration Act) — failure to do so can attract penalty of (up to) 60 penalty units ($12,600) (note, these are maximum penalties). The Code operates in a way that does not recognise or acknowledge that RMAs may operate in partnerships. All of the responsibilities under the Code are individual. In this case it is clear that there was a sharing of the work on the files — that means when Mr Moon left (and he may be found to have breached [page 238] the Code) Ms Winslow herself is responsible for those files (see Rozsy and MARA [2005] AATA 420). When the former agent left the firm, there should have

been an equal obligation on Ms Winslow and Mr Moon to ensure that there was a clear understanding about what had to happen for each file that Mr Moon passed to Ms Winslow. MARA can continue to receive a complaint against Mr Moon even though he is no longer registered. Section 311A of the Migration Act states that MARA can bar a former agent from being registered for up to five years. Section 17 of the Partnerships Act 1895 (WA) provides that partners are jointly and severally liable for the acts or omissions of other partners which impact upon third parties (and for their debts: s 16 of the Partnerships Act) (note these liabilities cannot be altered by partnership agreements). If there was a partnership agreement you need to check what the agreement was when one partner left the firm. Ms Winslow must look through all these files and get an understanding of what needs to happen. If there has been negligent advice or assistance she should perhaps refer the client to another migration agent. For all clients who have not been informed of Mr Moon’s departure she should write to each of them and explain she is the new RMA (she also needs to advise the DIBP and/or any Tribunal — see notification obligations: ss 312A and 312B). Ms Winslow should also contact her professional indemnity insurers and get some advice on what to do with these files. With any future partners she should set up a partnership agreement.

Question D9: Jane Marple 4.77 a.

Suggested answers are as follows. In the case of Parker Pyne the issues and breaches of the Code of Conduct are as follows: • Refusal of Mr Pyne’s employer nomination scheme visa application — Mr Pyne’s application was refused, as he

•

•

was not less than 50 years old. This is clearly a requirement to satisfy the primary criteria for this visa subclass, regardless of the stream (Sch 2 cl 186.221(a), Sch 2 cl 186.231(a)). While the age requirement for the direct entry stream has been reduced to 45 as at 1 July 2017, the age limit at the time that this application was lodged was 50 years of age. Clause 2.6 of the Code of Conduct requires Miss Marple to be frank and candid with Mr Pyne about his prospects of success. It also requires that she have due regard for his dependence on her knowledge and experience (cl 2.4) and requires her to have a sound working knowledge of the Regulations and be able to provide accurate advice (cl 2.3). She is also required to deal with her client ‘competently, diligently and fairly’ (cl 2.1). If Miss Marple advised Mr Pyne of this issue, she must not have encouraged such an application and should have advised him that it had no hope of success and she should have obtained his written acknowledgment that he had been advised in writing of this (cl 2.17). [page 239]

•

Miss Marple did not give the notice of decision to Mr Pyne until 5 December 2014. Clause 2.8(d) of the Code requires that Miss Marple must advise the client ‘in writing’ and ‘within a reasonable time after the case or application has been decided’ of the outcome of his application. She took 11 weeks to hand him the notice. This is clearly a breach of this clause of the Code. Her argument that she spoke to Mr Pyne’s assistant does not mitigate this at all, as the assistant is not the client, and neither was the notification in writing, both of which are

•

•

•

•

specific requirements of the Code. Miss Marple states that she told Mr Pyne’s assistant about the visa decision. Miss Marple has a duty to preserve the confidentiality of her client under cl 3.1 of the Code and ‘must not disclose confidential information’ about Mr Pyne or his business ‘without his written consent’. Miss Marple received $6000 from Mr Pyne for her work. She has no financial records and she has issued no invoices or statements and at the time had no bank account. Clause 5.1 of the Code requires that an agent ‘charge a fee that is reasonable in the circumstances of the case’. As this application had no chance of succeeding, $6000 cannot be regarded as ‘reasonable’ and this may be a breach of the Code. Miss Marple must provide Mr Pyne with a written estimate of the charges and time before starting any work (cl 5.2(a)(i) and (ii)). Prior to receiving any payment she has to give the client a statement of services setting out the services performed and the charges for these services (s 313(1) of the Migration Act and cl 5.5 of the Code). Miss Marple must retain copies of all written communication between client and agent (cl 6.1(b)(i)) and as there are no copies relating to estimates, fees or statements of service on file, she is therefore in breach of cls 6.1(b)(i), 5.5 and 5.2 of the Code. In terms of cl 5.5(c) of the Code, Mr Pyne is entitled to recover the payment amount from Miss Marple, as she has not provided him with a statement of services prior to his payment and also not within 28 days of the final decision on his visa application. Clause 7.1 of the Code requires that Miss Marple ‘must keep separate accounts with a financial institution’ for an operating account and another for money paid by her

b.

clients to her in a clients’ account. As Miss Marple had no bank account she is in breach of this clause of the Code. • The client file contains only a draft copy of Mr Pyne’s application. Miss Marple is required to keep copies of all written communication, applications and file notes of any substantive and material oral communication under cl 6.1 of the Code for seven years under cl 6.1A. • She also has to keep all documents that a client is entitled to for seven years under cl 6.2 of the Code. Furthermore Miss Marple is required by cl 7.4 of the Code to keep records of the clients’ account, including receipts and invoices. As she has none of these she is in breach of all these clauses of the Code. In the case of Ariadne Oliver the issues and breaches of the Code of Conduct are as follows: • Mrs Oliver terminated the services of Miss Marple after two months because of little work done. Clause 2.1(b) of the Code requires that [page 240]

•

Miss Marple should deal with Mrs Oliver ‘competently, diligently and fairly’. Clause 2.8(b) of the Code requires that she act in accordance with Mrs Oliver’s instructions. Doing ‘little work’ for approximately two months cannot be construed as acting diligently or acting in accordance with Mrs Oliver’s instructions. A breach of these clauses of the Code has therefore occurred. Mrs Oliver said that she would complain to MARA. Miss Marple is required to ‘respond properly to a complaint of a person’, whether a client or not (cl 9.1). On the facts, it

c.

appears that Miss Marple has made no effort to respond to Mrs Oliver’s complaint and is in breach of this clause of the Code. • Miss Marple decides to retain Mrs Oliver’s money until the complaint is resolved. Clause 10.1B(c) of the Code requires that within seven days of termination of services ‘all financial matters have been dealt with as specified in the contract’. Withholding Mrs Oliver’s money is a breach of this clause of the Code. • The client files contain no statement of services for the funds that Miss Marple was entitled to. Clause 5.5(a) sets out that Miss Marple ‘is not entitled to be paid a fee’ unless she gives Mrs Oliver a statement of services. Clause 5.5(c) states that Mrs Oliver is entitled to recover the amount of the payment from Miss Marple, as she has not received a statement of services before any such payment was made. Other breaches of the Code of Conduct by Miss Marple are: • Failing to maintain a professional library — cl 2.5(b)(i) of the Code requires that a registered migration agent must maintain a professional library. MARA indicates that either the LEGENDcom service or the Australian Immigration Law service from LexisNexis is acceptable. As Miss Marple has a subscription to the LexisNexis looseleaf service, she appears to satisfy this requirement. However, she has not filed any updates for six months and the Code specifically states ‘maintain’ a professional library. ‘Maintain’ is defined as ‘keep in good condition by checking or repairing it regularly’. She has not done this and is in breach of cl 2.5(b)(i) of the Code. The wellused Immigration Kit is not relevant. • Failing to maintain the reputation and integrity of the migration advice profession — cl 2.23 of the Code requires that a registered migration agent must take all

d.

reasonable steps to maintain the integrity and reputation of the profession. Miss Marple is in clear breach of this clause of the Code. Some actions that Miss Marple could take to address these issues include: • open a bank account; • establish accounting procedures for issuing receipts, keeping records of payments and issuing statements of services; • ensure that she maintains an up-to-date library by keeping her LexisNexis looseleaf service maintained; • review the Code of Conduct to ensure she is aware of her obligations; [page 241] • •

establish a diary system to ensure she remembers to take action on files as required; establish office and record-keeping procedures to ensure all required documents are kept in a client’s file.

Question D10: Fees 4.78 A migration agent can transfer fees from the clients’ account to the office account only when an invoice has been rendered in accordance with a client agreement. The invoice needs to comply with the Statement of Services obligations (for example, see s 313 of the Act and cl 5.5 of the Code).

Question D11: Fees 4.79

There is nothing in the Code that provides for RMAs to charge

a fixed or hourly fee. Clause 5.1 of the Code states: ‘There is no statutory scale of fees. However, a registered migration agent must set and charge a fee that is reasonable in the circumstances of the case.’ Clause 5.2 provides that an RMA must give a client an estimate of their fees before they commence work in the form of a charge for each hour or each ‘service’ and the client must agree to that fee in writing. Clause 5.3(a) provides that an RMA must not carry out work in a manner that would increase costs to the client. In setting fees an RMA should also consider the reputation and integrity of the profession (which also means they must be reasonable) (cl 2.23). In deciding what a reasonable fee is, you, as an agent, could look at: •

• •

• •

The precise services that you are expected to provide. For example, should you be advising on whether the occupation is on the Medium and Long-term Strategic Skills List (MLTSSL) for subsequent visas whether for temporary or permanent residence, or whether the course meets the two-year study requirement. The range of fees charged by others in the industry. Costs for the business, factoring in the costs of labour, practice overheads, the amount of time you will need to dedicate to the handling of this matter (that is, your professional costs), etc. Risk management issues — is the cost fair to the client? Will it cover your costs? What types of student visas would be more straightforward than others? The complexity of the matter and the needs and expectations of the client need to be taken into account as there are limits to how many files you can successfully manage. In a technical migration law sense, the client/applicant may have a medical issue that poses some risk in being successfully finalised, which may impact on the

fee that you would charge. In a client service sense, does the client expect continuous updates, written reports, etc, as these can add considerably to your time and affect your ability to service other clients. [page 242] •

Are there any changes in laws or procedures that may affect the work involved? The changes in skilled migration requirements show that what may be a straightforward application can change dramatically.

Question D12: Ms Xu 4.80 a.

b.

c.

d.

Suggested answers are as follows. Both charges may well be reasonable. A higher fee for critical one-off advice might be justified if such advice could expose the agent to high risk. It would not be logical for an agent to give high-risk advice and only charge a nominal fee. A statement of services must be given to the client in accordance with cl 5.5 of the Code of Conduct and s 313 of the Act. A properly drafted fee invoice (tax invoice) would give all the information required to comply with s 313 and cl 5.5. By quoting a fixed-fee billing arrangement the risk of cost overruns passes from the client to the RMA. Accordingly the RMA should be entitled to the benefit when things go smoothly. However, should you conclude that the initial fee quote was grossly excessive then a lower fee should be billed if you are endeavouring to comply with the spirit of the Code.

Question D13: File practice management 4.81 When an agent terminates the client/agent relationship they should give written notice to the client, advise the date on which the services were terminated, and detail any arrangements regarding the appointment of another migration agent (cl 10.1A). Within seven days of providing that notice the agent must update the file or files, return any documents to the client or a new agent if one is appointed and ‘ensure that all financial matters have been dealt with as specified in the contract’ (cl 10.1B). The agent should notify the DIBP that he or she is no longer acting (cl 2.1D). An agent is required to store a client file for seven years from the date of last action on the file (cl 6.1A). Files must be stored in a secure manner in accordance with cl 6.2.

Question D14: Nguyen 4.82 RMAs are obliged to adhere to the Code of Conduct (s 314 of the Migration Act). A failure by Mr Nguyen to do so can lead to one of the sanctions set out in s 303 (for example, caution, cancellation or suspension). There are specific clauses in the Code regarding the preparation and submission of visa applications, and most of these are to be found in Pt 2 of the Code — Standards of Professional Conduct. In particular: •

Clause 2.19 provides that an agent must provide adequate material for the assessment of an application. In addition, a failure to provide the relevant basic documents also demonstrates: failure to act competently (cl 2.1) and to have a sound working knowledge of the requirements under the Act and [page 243]

•

Regulations (cls 2.3 and 2.5). Clause 2.21 provides that an agent must not submit an application without the specified documents. Mr Nguyen has failed to provide some of the more fundamental or threshold documentation. While sometimes not all documents in a checklist can be provided upfront, the agent ought to address why such documents have not been provided, and provide a timetable as to when such documents will be provided. Clause 2.9 notes that an agent must not make statements which may be misleading or inaccurate. Assuming Mr Nguyen has lodged the application and made a submission, it would be hard to draw a conclusion that the application has a chance of success if the financial issues were not addressed. For example, cls 890.212–890.214 require, at the time of application, certain financial thresholds to be met by the client. If the agent thinks the client’s application has no prospects of success, then the agent would be required to comply with the procedures for lodging vexatious applications, as set out in cl 2.17 of the Code.

Further, Pt 6 of the Code of Conduct relates to record-keeping and management, and there are a host of obligations that Mr Nguyen may also be breaching. See for example Tejani and MARA [2009] AATA 240; Amin and MARA [2005] AATA 257; and Griffiths and MARA [2002] AATA 247.

Question D15: Sharni Kaur 4.83 Below is a sample submission to request priority processing of Sharni Kaur’s AAT application. The correspondence should be sent on the migration agent’s letterhead to the AAT. Dear Sir/Madam, RE: REQUEST FOR PRIORITISED PROCESSING APPLICANT: Ms Sharni Kaur

DATE OF BIRTH: AAT FILE NUMBER: We refer to the above application lodged on 6 May 2017. We refer to the President’s Direction on ‘Prioritising Cases in the Migration and Refugee Division’ dated 30 June 2015. In particular, we refer to section 3 which provides for priority processing in circumstances where there are ‘compelling reasons’. Paragraph 3.2 defines ‘compelling reasons’ as follows: ‘Compelling reasons’ refers to cases where both of the following situations apply: [page 244] (a) significant adverse circumstances exist in the applicant’s case which are beyond those experienced by other applicants in the same visa subclass facing comparable processing times; and (b) prioritising the application is likely to ameliorate the significant adverse circumstances faced. We note that example (d) in paragraph 3.4 is particularly relevant to Ms Kaur: an accident, illness or medical condition affecting an applicant’s health such that it would be unreasonable to prolong the review process We submit that there are compelling reasons in this case, namely Ms Kaur’s health concerns, which are significant adverse circumstances beyond those felt by applicants of the same visa type that would be ameliorated by the prioritising of this application. We attach a letter dated 9 June 2017 from Ms Kaur’s specialist, who has been treating her for four years and who writes in support of our request for prioritised processing: Ms Kaur has been struggling with deteriorating epilepsy for a number of years. She was initially diagnosed at the age of 17, and while her condition was managed for a few years, it began to deteriorate in 2013 and I then began treating her. She suffers from daily seizures. As a result, she is not permitted to drive and has been forced to cease work until her condition can be brought back under control. Due to the dangerous and unpredictable nature of her seizures, she is limited in social activities and struggles to undertake normal daily activities without the support of her partner, who is in India. It is my professional opinion that Ms Kaur’s condition has been adversely affected by her extended separation from her partner and the loss of physical and emotional support. I support her application for priority processing of her AAT application in light of her medical condition. While it is expected that her condition will improve in the future to the extent that she will be able to resume light duties at work, at the present time it is essential that she has her partner present. Ms Kaur’s medical conditions have deteriorated throughout the processing of her husband’s partner visa application. Her health has declined and the lack of practical and emotional support from her partner has contributed to this. We are instructed that Ms Kaur does not have anyone else who can provide her with the level of support and care required as she seeks to maintain and

control her condition. [page 245] We submit that Ms Kaur’s medical conditions are a compelling reason beyond that which a sponsor for a partner visa application would normally face. We kindly request expedited processing of her review application in light of her need for day-to-day support due to her medical conditions. We thank you for your understanding and consideration of this request. Should you require any further information, please do not hesitate to contact our office. Yours sincerely Agent MARN

Question D16: Ronaldo Esposito 4.84 a.

b.

Suggested answers are as follows. Yolanda is ineligible to be a sponsor as she is not an eligible New Zealand citizen, which is defined in r 1.03 as being someone who is a New Zealand citizen who was in Australia on 26 February 2001 or spent at least one year in Australia in the two years immediately before 26 February 2001. As Yolanda did not move to Australia until three years ago, she does not satisfy this definition and does not meet the definition of a ‘sponsoring partner’ in cl 820.111. As Yolanda is the holder of a subclass 444 visa, Ronaldo can apply for a New Zealand citizen family relationship (temporary) (subclass 461) visa. This visa is valid for five years from the date of grant; however, it can be renewed provided that Ronaldo is still a member of Yolanda’s family unit. He can apply for this visa even though he holds a bridging visa, but he will need to meet Sch 3 criteria. One of the requirements for satisfying Sch 3 criteria is that he must lodge the application within 12 months of the day when he last held a substantive visa.

c.

Below is a sample submission in relation to Sch 3 for Ronaldo Esposito’s DIBP application. The correspondence should be sent on the migration agent’s letterhead to DIBP.

Dear Sir/Madam, RE: SUBMISSION IN RELATION TO SCHEDULE 3 CRITERIA APPLICANT: Mr Ronaldo Esposito DATE OF BIRTH: [page 246] AAT FILE NUMBER: We confirm that we act for the applicant in relation to his subclass 461 visa application. We enclose Form 956 for your attention. Clause 461.213 requires an applicant to satisfy Sch 3 criteria if they are in Australia and do not hold a substantive visa: If the application is made in Australia: (a) at the time of application, the applicant held a substantive temporary visa other than a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream; or (b) if the applicant did not hold a substantive visa at that time: (i)

the last substantive temporary visa held by the applicant was not a visa mentioned in paragraph (a); and (ii) the applicant satisfies Schedule 3 criteria 3002, 3003, 3004 and 3005. As the applicant currently holds a bridging visa, he is required to satisfy cls 3002, 3003, 3004 and 3005. Clause 3002 Clause 3002 requires that: The application is validly made within 12 months after the relevant day (within the meaning of subclause 3001(2)). Subclause 3001(2)(c) applies to the applicant’s situation: (c) if the applicant: (i)

ceased to hold a substantive or criminal justice visa on or after 1 September 1994; (ii) … whichever is the later of: (iii) the last day when the applicant held a substantive or criminal justice visa; or (iv) the day when the applicant last entered Australia unlawfully The applicant’s last substantive visa was a tourist (subclass 600) visa, which

expired nine months ago. Accordingly, this application satisfies [page 247] cl 3002 as it is made less than 12 months after the last day on which the applicant held a substantive visa. Clause 3003 Clause 3003 does not apply to the applicant’s circumstances. Clause 3004 Clause 3004 requires the following: If the applicant: (a) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or (b) … the Minister is satisfied that: (c) the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control; and (d) there are compelling reasons for granting the visa; and (e) the applicant has complied substantially with: (i) the conditions that apply or applied to: A.

B.

the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and any subsequent bridging visa; or

(ii) the conditions that apply or applied to: A. the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect): and B. (f) either:

any subsequent bridging visa; and

(i)

in the case of an applicant referred to in paragraph (a) – the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or (ii) … [page 248] (g) the applicant intends to comply with any conditions subject to which the visa is granted; and (h) if the last visa (if any) held by the applicant was a transitional (temporary) visa, that

visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia. Each of the requirements from subcl 3004(c) to (h) will be addressed below. Subclause 3004(c) — Factors beyond the applicant’s control We submit that there are factors beyond the applicant’s control that led to the current situation where he now does not hold a substantive visa. PAM requires that the factors must have caused the applicant to become a person without a substantive visa: Two requirements must be satisfied: • •

there must be factors that caused the applicant to become an illegal entrant or a person without a substantive visa and those factors must have been beyond the applicant’s control.

The element of causation is important. It is not sufficient that factors beyond the control of the applicant existed. Those factors must have caused the applicant to become an illegal entrant or a person without a substantive visa. The applicant currently holds a bridging visa and therefore is not the holder of a substantive visa. The applicant’s bridging visa was granted on the basis of his application for a partner (Class UK/BS, subclass 820/801) visa application, which was applied for on the basis of his marriage to his wife, Yolanda Spicer. The application was lodged without the assistance of a migration agent and in the mistaken belief that Yolanda was an eligible New Zealand citizen because she held a subclass 444 visa. The applicant did not seek the help of a migration agent to lodge his partner visa application. English is his second language and he finds Australian migration law very confusing. The applicant recently received a letter requesting evidence that the sponsor was an Australian citizen, permanent resident or eligible New Zealand citizen. The letter contained advice regarding the definition of an eligible New Zealand citizen and it was only then that the applicant and sponsor realised that the sponsor was not classified as an eligible New Zealand [page 249] citizen and therefore was not eligible to sponsor him for a partner visa. Yolanda was not in Australia on 26 February 2001 and had not spent at least 12 months in Australia in the two years prior to 26 February 2001, so she does not meet the definition of an eligible New Zealand citizen. We submit that this is beyond the applicant’s control as a layperson cannot be expected to understand the intricate and complicated definitions in the migration law framework. The applicant operated under the belief that if there were any concerns the Department would advise him of the same during the processing of his application. It was not until eleven months after his application was lodged that he was asked to provide further information and it was brought to his attention that Yolanda was not an eligible sponsor. If this mistake had been brought to the applicant’s attention sooner, this may have

allowed him to apply for another visa before his visitor visa expired. Due to the significant visa application fee associated with partner visa applications, we submit that the applicant would not have submitted a partner visa application if he was aware that not all New Zealand citizens were considered to be eligible New Zealand citizens. The lodgment of the partner visa application was an honest mistake and was not an attempt to circumvent migration processes. Subclause 3004(d) — Compelling reasons for grant The applicant and the applicant’s wife demonstrate compelling reasons for the grant of a subclass 461 visa. PAM explains that compelling reasons must be considered cumulatively and can include the circumstances of another person: Compelling reasons may stem from compassionate factors or may arise, for example, from the applicant’s circumstances or the circumstances of another person. … All the circumstances of the case, individually and cumulatively, should be considered in determining whether there are compelling reasons for granting the visa. Consideration of the likely consequences of not granting the visa may assist in considering whether particular circumstances are compelling. The applicant’s wife, Yolanda Spicer, moved to Australia for a new adventure three years ago. She has recently been diagnosed with early stage bowel cancer and is scheduled to have an operation and chemotherapy in the coming weeks and months. If Ronaldo is not granted a visa to remain in Australia, he will have to return to Spain. Yolanda will lose the support of her husband and she does not have any other family in Australia. The doctor has advised that she requires [page 250] full-time care during her treatment. If Ronaldo cannot remain in Australia, she will have to pay for a full-time carer, which will put her into significant debt as she is out of work because of her illness and still needs to pay the mortgage. Ronaldo and Yolanda have recently bought a family home and now that Yolanda is unable to work they are struggling to meet the repayments on the mortgage. If Ronaldo is not granted a visa, it is likely that the house will be repossessed for failure to meet repayments and Yolanda will have nowhere to live. We submit that these are compelling reasons for grant of the subclass 461 visa to Ronaldo. Subclause 3004(e) — Compliance with previous visa conditions The applicant instructs that he has complied with the visa conditions that applied to his last substantive visa and subsequent bridging visas. Subclause 3004(f) — Eligibility at time of substantive visa expiry The applicant was eligible for the grant of a subclass 461 visa at the time that his last substantive visa expired. On that date, the applicant was a member of the family unit of a subclass 444 visa holder, namely his wife Yolanda, following their marriage in New Zealand before Yolanda relocated to Australia and was granted a subclass 444 visa three years ago. Accordingly, the applicant would have been eligible for the grant of a subclass 461 visa when his visitor visa expired nine months ago.

Subclause 3004(g) — Intention to comply with visa conditions if visa is granted The applicant instructs that he intends to comply with any visa conditions imposed on his subclass 461 visa. Subclause 3004(h) — Condition preventing grant of further visa while onshore The applicant’s last substantive visa was a visitor (subclass 600) visa, which is not a temporary transitional visa. Clause 3005 Clause 3005 does not apply to the applicant’s circumstances as he has not previously been granted a visa after satisfying Sch 3 criteria. Accordingly, we submit that the applicant satisfies Sch 3 criteria and cl 461.213 and is eligible for grant of a subclass 461 visa. Yours sincerely Agent MARN

[page 251]

Question D17: Ernest Hemingwood 4.85 Below is a sample submission for Ernest Hemingwood’s AAT application in relation to Sch 3. The correspondence should be sent on the migration agent’s letterhead to the AAT. Dear Sir/Madam, RE: SUBMISSION IN RELATION TO COMPELLING REASONS FOR WAIVER OF SCHEDULE 3 CRITERIA APPLICANT: Mr Ernest Hemingwood DATE OF BIRTH: AAT FILE NUMBER: We refer to the above matter and advise we act for the review applicant, Mr Ernest Hemingwood. We provide the following submission in support of the review applicant’s application in accordance with our client’s instructions. Background to application Mr Hemingwood arrived in Australia on a student (subclass 573) visa on 19 October 2008. He lodged an application for a protection visa on 21 December 2009, which had no basis and was quickly refused. Mr Hemingwood ceased attending classes and his subclass 573 visa was cancelled on 31 March 2010. He has remained in Australia ever since.

In April 2012, Mr Hemingwood met his sponsor Ms Evelyn Gardnin through a mutual friend. They fell in love and were married in October 2012. Soon after, Ms Gardnin fell pregnant with their daughter, Aprilia, who was born on 23 December 2013. As Ms Gardnin is an Australian citizen, Mr Hemingwood decided to lodge a partner visa to remain in Australia, out of fear of being separated from his wife and daughter if he was detected by DIBP. His application was lodged on 24 September 2015 but was refused on 16 May 2017 as the delegate was not satisfied that there were compelling reasons for waiver of Sch 3 criteria. Mr Hemingwood lodged an application for review to the Administrative Appeals Tribunal and is providing this submission in support of his application. Compelling reasons for waiver of Sch 3 criteria As Mr Hemingwood is the holder of a bridging E visa, he is required to satisfy cl 820.211(2)(d)(ii), which is extracted below: [page 252] (d)in the case of an applicant who is not the holder of a substantive visa — either: (i) the applicant: (A) entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and (B) satisfies Schedule 3 criterion 3002; or (ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria. We note that cl 820.211(d)(ii) is the relevant provision as sub-regulation cl 820.211(d)(i) does not apply to Mr Hemingwood’s circumstances. We accept that Mr Hemingwood was an unlawful non-citizen in Australia following the cancellation of his student visa. It is accepted that Mr Hemingwood does not satisfy cl 3001 and therefore does not satisfy the relevant Sch 3 criteria. However, we submit that Mr Hemingwood demonstrates compelling reasons for the waiver of the requirement to satisfy Sch 3 criteria. PAM states that: Policy intends that the waiver provision should not be applied where it is reasonable to expect the applicant to leave Australia and apply outside Australia for a Partner visa. We submit that it would not be reasonable to expect Mr Hemingwood to leave Australia and apply for an offshore partner visa for the reasons outlined below, namely his Australian citizen child and his wife’s health concerns. In determining whether compelling reasons exist, the following policy guidance in PAM is helpful: The Migration Regulations do not prescribe the circumstances that need to be considered when assessing whether or not ‘compelling reasons’ exist to not apply Schedule 3 criteria 3001, 3003 and 3004. As such, officers should consider

circumstances on a case by case basis. In MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478, Bromberg J made the following comment: That subclause is addressing whether there exists a sufficient basis to move the decision-maker to waive what would otherwise [page 253] be criteria which an applicant for a visa must satisfy. In that context, ‘compelling reasons’ means reasons which are sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria: Paduano v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 211 at [39] (Crennan J). The circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria: Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 77 at [24] (Tamberlin, Conti and Jacobson JJ). Justice Bromberg later makes the following statement: In the evaluative judgment to be made, the decision-maker may consider a single circumstance or a multitude of circumstances. Ultimately, the question is whether the circumstances as a whole compel the decision-maker to exercise the discretion conferred. (para 12) We submit that each reason is a compelling circumstance in and of itself, and even more so when considered as a whole. Australian citizen child As Ms Gardnin is an Australian citizen, it follows that Aprilia is also an Australian citizen. We refer to the recent Federal Court case of Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 (11 March 2016) in which it was discussed that an Australian citizen child is a strongly compassionate reason for waiver of Sch 3 criteria. Griffiths and Robertson JJ both referred to the Explanatory Memorandum to the amending Act that introduced the waiver provision, which states that: The Schedule 3 requirements impose certain restrictions on unlawful non-citizens who apply onshore for residence on spouse grounds. The introduction of a waiver provision recognises the hardship that can result if an unlawful non-citizen wishing to remain in Australia on spouse grounds is obliged to leave Australia and apply from overseas. The waiver will provide greater flexibility for the Minister if and when compelling circumstances arise. It is expected that the waiver will be exercised only where there are reasons of a ‘strongly compassionate’ nature such as: -

Where there are Australian-citizen children from the relationship; or [page 254]

-

Where the applicant and his or her nominator are already in a longstanding relationship which has been in existence for two years or longer.

In these circumstances, waiver may be justified by the hardship which could result if the Schedule 3 criteria were not waived. (para 47) We note that the Convention on the Rights of the Child requires the best interests of minor children to be considered as paramount. We refer in particular to the following articles: Article 3(1) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. Article 9(1) States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. … Article 9(3) States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests. We submit that it is not in Aprilia’s best interests for her father to be required to leave Australia, particularly at such a young age when her relationship with her father is of foundational importance for her holistic development. Accordingly, we submit that this is a compelling reson for waiver of Sch 3 criteria in accordance with the decision in Waensila and Parliament’s intention for enacting the waiver provision. Health of the sponsor Ms Gardnin suffers from chronic medical conditions including ulcerative colitis, diabetes and severe arthritis. As a result of these conditions, Ms Gardnin has been forced to stop working. She struggles to carry out normal daily activities and requires a lot of rest and support from Mr Hemingwood. She has been advised by her doctor that her current treatment is unsuccessful and she will be required to transition to a [page 255] new treatment, which has potentially significant side effects including nausea and heart complaints. Her doctor, Dr Seuss, has provided a medical report, which contains the following opinion: I have been treating Ms Gardnin for five years and have noticed a significant deterioration of her conditions over the last 18 months. She has been required to cease working and is failing to respond to current treatment. In my professional opinion, the stress associated with her husband’s uncertain immigration status has compounded her

condition. She is highly stressed about the prospect of being separated from her husband and being required to raise Aprilia on her own. I strongly believe that Ms Gardnin’s condition will continue to worsen if her husband is required to leave Australia, in spite of any new treatment, due to the additional stress and anxiety that this will cause. We submit that Ms Gardnin, an Australian citizen, would experience significant hardship if she no longer had the care, assistance and emotional support of her husband, particularly as she would be required to be the sole carer of their daughter. This is a compelling reason for waiver of the Sch 3 criteria. Accordingly, in light of all of the compelling reasons outlined above, we submit that Mr Hemingwood demonstrates compelling reasons for waiver of Sch 3 criteria. Yours sincerely Agent MARN

Index References are to paragraph numbers

A Act of Parliament constitutions set out in …. 1.4 passing of …. 1.6 status …. 1.7 Acts Interpretation Act 1901 (Cth) interpretation guidance …. 1.9, 1.10, 1.75, 1.78 Administrative Appeals Tribunal (AAT) Attorney-General’s portfolio, under …. 2.20 bound by legislation …. 1.7 Migration and Refugee Division …. 2.20 immigration assistance by agent, where …. 2.39 legislative provisions …. 1.21 priority processing, scenario question …. 3.86, 4.83 provision of documents …. 2.65 reviewable decisions see Review of decisions scenario question …. 3.86, 4.83 service of documents …. 1.37 policy guidelines, application of …. 1.7 Agent see Migration agent Aircraft chasing and boarding, legislative provisions …. 1.17 reporting on passengers and crew, legislative provisions …. 1.17 Asylum seekers see also Refugees Comprehensive Plan of Action (CPA), covered by …. 2.15 fast track review of claims …. 1.23 legal proceedings by …. 2.14

offshore processing arrangement …. 2.14 protection visas see Protection visa resettlement …. 2.14 unauthorised maritime arrivals, where …. 2.14, 2.44 Immigration Advice and Application Assistance Scheme (IAAAS), barring assistance to …. 2.44 visa applications …. 2.14 Asylum Seekers Assistance Scheme (ASAS) administration …. 2.45 Australia entry into and remaining in, offences in relation to legislative provisions …. 1.17 population …. 2.20 Australian Border Force (ABF) Commissioner …. 2.20 Department of Immigration and Border Protection, transition to …. 2.20 establishment …. 2.20 officers …. 2.20 Australian Citizenship Instructions (ACIs) policy guidelines …. 1.12 Australian Consulate-General, Consulate or Honorary Consulate Department of Immigration and Border Protection officers, representation of …. 2.22 Australian Embassy Department of Immigration and Border Protection officers, representation of …. 2.22 Australian High Commission Department of Immigration and Border Protection officers, representation of …. 2.22 Authorised recipients appointment …. 2.39 communication from Minister sent to …. 2.66

B Business Innovation and Investment Program (BIIP) points test …. 1.48 Business skills visa criteria streams …. 2.4 policy guidelines collateral definition …. 1.72 scenario question …. 3.42–3.44, 4.43–4.45 sponsor obligations, scenario question …. 3.36, 4.37 Business talent visa scenario question …. 3.41, 4.42

C Canadian missions Australian consular assistance provided by …. 2.22 Cancellation of visas character grounds, on …. 2.12 scenario question …. 3.61, 4.62 incorrect information grounds scenario question …. 3.58, 4.59 scenario question …. 3.57–3.61, 4.58–4.62 Capping of visas cap-and-cease …. 2.49 cap-and-queue …. 2.49 Character information refusal to grant visa based on …. 2.72 visa applicant, conveyance of information to …. 2.53 Citizenship descent, by, ImmiAccount, lodgment of application through …. 2.36 policy documents …. 1.12 scenario question …. 3.15–3.26, 3.56, 3.64, 4.16–4.27, 4.57, 4.65 Commonwealth of Australia Constitution …. 1.4

executive power, vesting of …. 1.3 Commonwealth of Australia Constitution Act 1900 (Cth) Federation, agreeance to …. 1.4 immigration function …. 1.4 overview …. 1.4 s 51 heads of power …. 1.4 separation of powers, recognition of …. 1.4 Compelling reasons definition …. 1.76 Comprehensive Plan of Action (CPA) asylum seekers covered by …. 2.15 Continuing Professional Development (CPD) approved activities …. 1.60 approved providers of …. 1.61 mandatory activities …. 1.64 requirement for migration agents …. 1.59 Costs deportation, of legislative provisions …. 1.17 orders where no reasonable prospects of success …. 1.26 recovery of legislative provisions …. 1.17 Courts function …. 1.3 judgments …. 1.3 judicial review see Judicial review proceedings, restrictions on …. 1.25 Credit card surcharge for payment by …. 2.33 Criminal justice visa ‘entry’ versus ‘stay’ visa …. 2.9 grant of …. 2.9 Criminal justice visitors legislative provisions …. 1.17

D De facto partner …. 3.70, 4.71 Department of Immigration and Border Protection (DIBP) Australian Border Force (ABF), inclusion of …. 2.20 Australian Border Force Commissioner, reference to …. 2.41 Australian overseas missions, officers represented in …. 2.22 bound by legislation …. 1.7 determination of visa applications …. 2.73 erroneous advice, where gives …. 2.50 establishment …. 2.20 history …. 2.20 ImmiAccount facility …. 2.36 invalid visa applications, handling of …. 2.48 name changes …. 2.20 National Accreditation Authority for Translators and Interpreters (NAATI) Ltd …. 2.20 Office of the Migration Agents Registration Authority (OMARA), responsible for …. 2.20 policy guidelines, application of …. 1.7, 1.12, 1.55, 1.76 portfolio scope …. 2.20 responsibilities …. 2.21 Secretary, reference to …. 2.21, 2.41 staff, posting of …. 2.22 backroom staff …. 2.22 counter staff …. 2.22 state structure regions, divided into …. 2.22 state director …. 2.22 structure …. 2.22 Dependants adding after lodgment of visa application …. 2.42 children, visa applications and scenario question …. 3.44–3.45, 4.45–4.46 Deportation

legislative provisions …. 1.17

E Electronic Travel Authority (ETA) scenario question …. 3.41, 4.42 Employment business skills visa see Business skills visa business talent visa see Business talent visa health requirements, scenario question …. 3.35, 4.36 immigration assistance given by employers and employees …. 1.58 permanent employment visa, scenario question …. 3.32–3.33, 3.35, 3.43, 4.33–4.34, 4.36, 4.44 temporary employment visa, scenario question …. 3.33–3.35, 4.34–4.36 Enforcement visa application constraints …. 2.10 environmental matters …. 2.10 fisheries matters …. 2.10 legislative provisions …. 1.17 English language charge …. 2.32 proficiency requirement …. 2.32 tuition in …. 2.32 Entry and search legislative provisions …. 1.17 Executive make-up of …. 1.3 power …. 1.3 Exempt persons notification regarding immigration assistance …. 2.39

F Factors beyond applicant’s control

definition …. 1.76 Family violence visa applications, effect on scenario question …. 3.69, 4.70 Federal Executive Council make-up of …. 1.3 Federal government branches …. 1.3 history …. 1.2 ministers …. 1.3 powers …. 1.4 separation of powers doctrine …. 1.3, 1.4 system …. 1.2 Federal Register of Legislation establishment …. 1.6 Forfeiture legislative provisions …. 1.17 Freedom of information scenario question …. 3.59, 4.60

G Gazette notices legislative instruments, as …. 1.6 Gazetted agencies definition …. 2.55 protected confidential information, disclosure of …. 2.55 General skilled migration (GSM) visa capping …. 2.49 points test …. 1.47 scenario question …. 3.38–3.40, 4.39–4.41 scenario question …. 3.37–3.40, 4.38–4.41 skills assessment, scenario question …. 3.37, 3.39, 3.40, 4.38, 4.40, 4.41 Government federal see Federal government

state see State government Governor-General assent to legislation …. 1.6 function …. 1.3 power …. 1.3

H Health services charge release of …. 2.31 visa applicants subject to …. 2.29 visa applicant, conveyance of information to …. 2.53 visa requirements, scenario question …. 3.35, 3.44, 4.36, 4.45

I ImmiAccount facility online visa applications, for …. 2.36 Immigration Advice and Application Assistance Scheme (IAAAS) availability of …. 2.44 unauthorised maritime arrivals, barring of assistance to …. 2.44 Immigration assistance infringement notices …. 1.58 legislative provisions …. 1.18 notification requirements …. 2.39 signing documentation …. 2.39 unregistered persons, by …. 1.58 scenario question …. 3.8, 4.7 Immigration clearance exempt persons …. 1.50 legislative provisions …. 1.17 Immigration detainees identification …. 1.36 legislative provisions …. 1.17

residence determination or community detention …. 2.11 scenario question …. 3.64, 4.65 visa applications …. 2.11 Immigration detention non-citizens to be kept in legislative provisions …. 1.17 offences, legislative provisions …. 1.17 Immigration law timeline …. 1.13 Immigration status legislative provisions …. 1.17 Incapable persons identification of legislative provisions …. 1.17 Information non-disclosable …. 2.54 protected confidential …. 2.55 Infringement notices immigration assistance given by unregistered persons, where …. 1.58 International Conference on Indo-Chinese Refugees Comprehensive Plan of Action, approval of …. 2.15 Interpreter services scenario question …. 3.74, 4.75

J Judicature function …. 1.3 Judicial review legislative provisions …. 1.24 scenario question …. 3.60, 4.61 Judiciary make-up …. 1.3

L Legal aid

visa applicant access to …. 2.46 Legislation Act of Parliament …. 1.6 amendments …. 1.54 assent …. 1.6 constitutionality of …. 1.4 definitions …. 1.8, 1.66 delegated …. 1.6 drafting of …. 1.5 hierarchy …. 1.7 interpretation …. 1.8–1.10, 1.73 case law …. 1.77 derivations of word or phrase …. 1.10, 1.75 dictionary meaning …. 1.8, 1.79 directions-of-influence pyramid …. 1.7, 1.74 distinguishing words …. 1.9 facts of case, application to …. 1.80 legislative intention …. 1.74 methods …. 1.12 policy guidance …. 1.76 supplementary, extrinsic or intrinsic materials …. 1.78 legislative instruments …. 1.6 legislative provisions …. 1.5 migration see Migration Act 1958 (Cth); Migration Regulations 1994 (Cth) overview …. 1.5 process of making …. 1.6 types …. 1.6 Legislative instruments delegated legislation, form of …. 1.6 Federal Register of Legislation …. 1.6 no amendments to …. 1.54 overview …. 1.6, 1.11 visa applications, stipulations for …. 2.5

Legislature function …. 1.3

M Marriage, non-genuine scenario question …. 3.70, 4.71 Medicare eligibility for …. 2.30, 2.47 Migration case law …. 1.12 definitions in …. 1.72, 1.77 policy guidelines …. 1.7, 1.12 definitions in …. 1.72 interpretation of legislation …. 1.76 limitations …. 1.55 scope …. 1.55 Migration Act 1958 (Cth) administration …. 1.14 amendments to …. 1.54 definitions …. 1.67, 1.68 cross-referencing …. 1.70 locating …. 1.66, 1.68 Minister …. 1.15 other legislation, in …. 1.71 policy or case law, in …. 1.72 scenario question …. 3.2, 4.1 Secretary …. 1.15 divisions …. 1.14 interpretation …. 1.74 overview …. 1.11 paragraph …. 1.14 Parts …. 1.14–1.30 arrival, presence and departure of persons …. 1.17 civil penalties …. 1.28

costs orders where no reasonable prospect of success …. 1.26 detention reports …. 1.27 fast track review process …. 1.23 identifying information, obligations relating to …. 1.20 investigation powers …. 1.29 judicial review …. 1.24 migration agents and immigration assistance …. 1.18 miscellaneous …. 1.30 offences …. 1.19 preliminary matters …. 1.16 restrictions on court proceedings …. 1.25 reviewable decisions …. 1.21, 1.22 privative clauses …. 1.24 section …. 1.14 structure …. 1.14 subdivision …. 1.14 subparagraph …. 1.14 subsection …. 1.14 subsubparagraph …. 1.14 Migration agent appointment …. 2.39 Code of Conduct development of …. 1.65 mandatory obligations …. 1.65 registered migration agents, application to …. 1.59 regulation by …. 1.65 scenario question …. 3.6–3.14, 3.70, 3.75–3.80, 3.85, 4.5–4.15, 4.71, 4.76, 4.77, 4.82 communication with clients, scenario question …. 3.74, 4.75 conflict of interest, where …. 2.39 disciplining, legislative provisions …. 1.18 ethics and ethical conduct scenario question …. 3.10–3.13, 3.85, 4.9–4.14, 4.82

fees, scenario question …. 3.13, 3.81–3.83, 4.14, 4.78–4.80 form 956, requirement of …. 2.39 inactive and deceased, clients of legislative provisions …. 1.18 obligations of legislative provisions …. 1.18 scenario question …. 3.8, 4.7 practice management, scenario question …. 3.75–3.80, 3.84, 3.85, 4.76, 4.77, 4.81, 4.82 professional development see Continuing Professional Development (CPD) receipt of client’s mail …. 2.40 registration requirements …. 1.59 legislative provisions …. 1.18 scenario question …. 3.8, 4.7 restrictions on, legislative provisions …. 1.18 signature on behalf of client …. 2.39 termination of client relationship, scenario question …. 3.84, 4.81 visa applications by …. 2.39 Migration Agents Registration Authority (MARA) functions …. 1.18 investigation and decision making by legislative provisions …. 1.18 legislative provisions …. 1.18 notices …. 1.6 prescribed forms …. 1.62 provision of documents by …. 2.65 registration application fees and charges legislative provisions …. 1.18 Migration Agents Regulations 1998 (Cth) overview …. 1.56 Parts …. 1.57–1.63 approved activities …. 1.60 approved providers …. 1.61

immigration assistance given by persons not registered …. 1.58 introductory …. 1.57 miscellaneous …. 1.62 registered migration agents …. 1.59 transitional provisions …. 1.63 Schedules …. 1.64, 1.65 Code of Conduct …. 1.65 continuing professional development …. 1.64 Migration Regulations 1994 (Cth) amendments to …. 1.54 definitions …. 1.67, 1.69 cross-referencing …. 1.70 locating …. 1.66, 1.69 other legislation, in …. 1.71 policy or case law, in …. 1.72 scenario question …. 3.2, 4.1 interpretation …. 1.74 overview …. 1.11, 1.31 Parts …. 1.33–1.38 immigration clearance and collection of information …. 1.36 miscellaneous …. 1.38 preliminary …. 1.33 review of decisions …. 1.37 sponsorships …. 1.35 visas …. 1.34 prescribed forms …. 1.51 Schedules …. 1.39–1.52 business innovation and investment points test …. 1.48 classes of visas …. 1.40 general points test for general skilled migration …. 1.47 grant of subclasses of visas …. 1.41–1.43 prescribed forms …. 1.51 public interest criteria …. 1.45

special entry and clearance arrangements …. 1.50 special return criteria …. 1.46 transitional arrangements …. 1.52 unlawful non-citizens and bridging visa holders, additional criteria for …. 1.44 scenario question …. 3.86, 4.83 visa conditions …. 1.49 structure …. 1.32 transitional provisions …. 1.38, 1.52 Migration Series Instructions (MSI) application …. 1.7, 1.55 policy guidelines …. 1.7, 1.12, 1.55, 1.76 Minister for Immigration and Border Protection communication between visa applicant and …. 2.56–2.61 defective communication from …. 2.68 delivery of documents to visa applicant …. 2.65, 2.66 further information, request for …. 2.62 interview, request for …. 2.62 invitation to submit new application …. 2.51 non-disclosable information …. 2.54 scenario question …. 3.59, 4.60 notification by visa applicant birth of child …. 2.42 change in circumstances …. 2.43 residential address …. 2.40 reference to …. 1.15, 2.21, 2.41 responsibilities …. 2.21 suspension of visas …. 2.49 time of receipt of communication from …. 2.67 electronic transmission, where …. 2.67 visa capping …. 2.49 waiver of visa conditions …. 2.18 scenario question …. 3.73, 3.87, 3.88, 4.74, 4.84, 4.85 Ministerial directions

no amendments to …. 1.54 overview …. 1.11 Minor correspondence from Minister where …. 2.66 dependent child, visa applications scenario question …. 3.44, 3.45, 4.45, 4.46 transitory persons, where …. 2.14 identification of, legislative provisions …. 1.17 unauthorised maritime arrivals …. 2.14

N National Accreditation Authority for Translators and Interpreters (NAATI) Ltd …. 2.20 Natural justice visa applications …. 2.50, 2.52 Nauru offshore processing arrangement with …. 2.14 ‘No further stay’ condition waiver of …. 2.18 scenario question …. 3.72, 4.73 Non-citizens access to protection from third countries, where …. 2.17 immigration detention, kept in legislative provisions …. 1.17 unlawful see Unlawful non-citizens visas for, legislative provisions …. 1.17 Non-disclosable information procedural fairness and …. 2.54 refusal of visa application, in …. 2.54

O Office of Parliamentary Council legislation, drafting of …. 1.5 Office of the Migration Agents Registration Authority (OMARA) …. 2.20

P Papua New Guinea detention of asylum seekers in …. 2.14 offshore processing arrangement with …. 2.14 Parliament Commonwealth, powers of …. 1.4 function …. 1.3 Permanent protection visa unauthorised maritime arrivals, application by …. 2.38 Personal identifiers collection …. 1.36 obligations relating to …. 2.3 Post office box immigration office, whether …. 2.35 Procedural fairness authorised recipient, where communication sent to …. 2.66 non-disclosable information and …. 2.54 Procedures Advice Manual (PAM) application …. 1.7 over-reliance on …. 1.55 policy guidelines …. 1.7, 1.12, 1.55, 1.76, 2.18 policy not law …. 1.55 Protected confidential information visa application …. 2.55 Protection visa application …. 1.40 non-citizen with protection from third countries …. 2.17 refusal of non-citizen …. 2.8 transitory persons …. 2.14 unauthorised maritime arrivals …. 2.14 capping of …. 2.49 fast track review process …. 1.23 scenario question …. 3.47–3.50, 3.68, 4.48–4.51, 4.69 suspension of processing of …. 2.49

Public interest visa criteria …. 1.45

R Refugees see also Asylum seekers East Timorese …. 2.16 Kosovars …. 2.16 scenario question …. 3.47–3.50, 3.66, 3.67, 3.72, 4.48–4.51, 4.67, 4.68, 4.73 Vietnamese …. 2.15 West Papuans …. 2.17 Regulations delegated legislation, as …. 1.6 status …. 1.7 Review of decisions fast track review process …. 1.23 scenario question …. 3.65, 4.66 legislative provisions …. 1.22 scenario question …. 3.60, 3.65–3.67, 3.70, 3.72, 4.61, 4.66–4.68, 4.71, 4.73

S Scenario questions summary …. 3.1 Secretary for Immigration and Border Protection reference to …. 1.15, 2.21, 2.41 responsibilities …. 2.21 Separation of powers Constitution, under …. 1.4 overlaps …. 1.3 theory …. 1.3 Settled definition …. 1.76 Ships

crews, duties of Masters in relation to legislative provisions …. 1.17 reporting on passengers and crews of, legislative provisions …. 1.17 Solicitor receipt of client’s mail …. 2.40 signature on behalf of client …. 2.39 visa application by …. 2.39 Sponsor obligations, scenario question …. 3.36, 4.37 professional development immigration assistance …. 1.58 terms …. 1.35 Sponsorship legislative provisions …. 1.17 provisions for …. 1.35 scenario question …. 3.40, 3.71, 3.72, 3.87, 4.41, 4.72, 4.73, 4.84 State government powers …. 1.4 Statute see Legislation Statutory rules see Legislation Student visa cancellation, scenario question …. 3.61, 4.62 compliance, monitoring legislative provisions …. 1.17 scenario question …. 3.61, 3.62, 3.70, 4.62, 4.63, 4.71 scenario question …. 3.45, 3.61, 4.46, 4.62 work rights, scenario question …. 3.46, 3.61, 3.62, 4.47, 4.62, 4.63

T Temporary protection visa automatic conversion of permanent protection application to …. 2.38

exemption from capping …. 2.49 Time zones online visa application lodgment and …. 2.36 Transitory persons visa applications …. 2.14 Translators accreditation …. 2.59

U Unauthorised maritime arrivals visa applications …. 2.14 United States resettlement of asylum seekers in …. 2.14 Unlawful non-citizens detention of, legislative provisions …. 1.17 information and documents concerning, power to obtain legislative provisions …. 1.17 removal of, legislative provisions …. 1.17 scenario question …. 3.63, 3.87, 4.64, 4.84 visa criteria …. 1.44

V Visa Act-based …. 2.13 applicant see Visa applicant application see Visa application bridging …. 1.40 additional criteria for …. 1.44 scenario question …. 3.5, 3.52–3.54, 3.87, 4.4, 4.53–4.55, 4.84 business see Business skills visa; Business talent visa cancellation see Cancellation of visas capping …. 2.49 classes and subclasses …. 1.40, 2.4

streams …. 2.4 codes alpha …. 1.43, 1.53 numeric …. 1.53 principal/dependant …. 1.53 conditions …. 1.49 ‘no further stay’ …. 2.18 scenario question …. 3.72, 4.73 waiver of …. 2.18 criminal justice …. 2.9 ‘entry’ versus ‘stay’ …. 2.9 criteria …. 1.44 public interest …. 1.45 special return …. 1.46 employment see Employment enforcement environment matters …. 2.10 fisheries matters …. 2.10 exclusion periods, scenario question …. 3.63, 4.64 family, assurance of support and scenario question …. 3.31, 3.71, 4.32, 4.72 general concepts, scenario question …. 3.3, 3.7, 4.2, 4.6 general skilled migration see General skilled migration visa humanitarian …. 1.40 medical treatment, scenario question …. 3.51, 3.73, 4.52, 4.74 New Zealand citizen status, scenario question …. 3.56, 4.57 parent, scenario question …. 3.28–3.30, 4.29–4.31 partner, scenario question …. 3.23, 3.27, 3.63, 3.69, 3.70, 4.24, 4.28, 4.64, 4.70, 4.71 permanent …. 1.40 ‘points’ system Business Innovation and Investment Program …. 1.48 General Skilled Migration test …. 1.47 protection see Protection visa

refugee …. 1.40 remaining relative, scenario question …. 3.71, 4.72 resident return, scenario question …. 3.55, 4.56 retirement, scenario question …. 3.30, 4.31 safe haven enterprise …. 3.68, 4.69 no capping of …. 2.49 temporary safe haven visa, contrast with …. 2.17 student see Student visa subclasses, grant of …. 1.41–1.43 numeric code …. 1.43, 1.53 ‘recipe card’ …. 1.41 temporary …. 1.40 charge for subsequent …. 2.26 temporary safe haven …. 2.16 safe haven enterprise visa, contrast with …. 2.16 temporary work (skilled) (457), nominations …. 1.35 visitor scenario question …. 3.3–3.5, 4.2–4.4 work and, scenario question …. 3.51, 4.52 work agreements …. 1.35 Visa applicant assessment order …. 2.50 Asylum Seekers Assistance Scheme, access to …. 2.45 birth of child, notification of …. 2.42 change in circumstances, notification of …. 2.43 change of address forms, use of …. 2.40 communication with Minister authorised recipient on behalf of applicant, to …. 2.66 carer of minor …. 2.66 defects or errors …. 2.68 delivery method …. 2.60, 2.65 further information, provision of …. 2.62 how to communicate …. 2.58 electronic transmissions …. 2.58

oral applications …. 2.58 writing, by …. 2.58 interview, attendance at …. 2.62 receipt, time of …. 2.67 rules …. 2.56–2.61 time limits …. 2.63, 2.64 time of receipt …. 2.67 electronic transmission, where …. 2.67 what to include …. 2.59 certified photocopies …. 2.59 original documentation …. 2.59 translations, need for …. 2.59 where to send …. 2.60 who may communicate …. 2.57 erroneous Department advice, where acting on …. 2.50 government assistance …. 2.44–2.47 health and character, conveyance of information concerning …. 2.53 Immigration Advice and Application Assistance Scheme, access to …. 2.44 immigration detainees …. 2.11 incorrect information to …. 2.50 invitation to submit for alternative class or subclass …. 2.51 legal aid, access to …. 2.46 Medicare, eligibility for …. 2.30, 2.47 non-citizens access to protection from third countries, where …. 2.17 refused protection visa …. 2.8 refused visa or visa cancelled …. 2.7 person in his or her own right …. 2.50 residential address, obligation to notify Minister of …. 2.40 temporary safe haven visa holders …. 2.16 transitory person …. 2.14 unauthorised maritime arrival …. 2.14

Visa application approvals …. 2.70 approved forms, use of …. 2.5 assessment …. 2.50 authorised recipient, appointment of …. 2.39 automatic conversion …. 2.38 charges see Visa application charges client responsibility …. 2.1 consideration of information …. 2.52 decision, notification of …. 2.69 approval, where …. 2.70 refusal, where …. 2.71–2.72 dependents added after lodgment …. 2.42 final determination …. 2.73 information, provision of …. 2.52 invalid …. 2.48 no review rights where …. 2.48 legislative constraints …. 2.6–2.18 Act-based visa …. 2.13 Comprehensive Plan of Action, effect of …. 2.15 criminal justice visa …. 2.9 detainees …. 2.11 enforcement visa …. 2.10 ‘no further stay’ condition …. 2.18 non-citizen refused protection visa …. 2.8 non-citizen refused visa or visa cancelled …. 2.7 non-citizen with access to protection from third countries …. 2.17 refusal or cancellation on character grounds …. 2.12 temporary safe haven visa …. 2.16 transitory persons …. 2.14 unauthorised maritime arrivals …. 2.14 legislative instruments, compliance with …. 2.5 lodgment …. 2.35, 2.36

legislative basis …. 2.35 online …. 2.36 scenario question …. 3.5, 4.4 migration agent or exempt person, by …. 2.39 form 956, requirement for …. 2.39 multiple …. 2.37 natural justice …. 2.50, 2.52 ‘non-disclosable information’ …. 2.54 procedural fairness and …. 2.54 notifying decision on …. 2.69 online …. 2.36 ImmiAccount facility …. 2.36 timing, importance of …. 2.36 overview …. 2.1 procedural matters …. 2.1 scenario question …. 3.3, 3.4, 3.14, 4.2, 4.3, 4.15 ‘protected confidential information’ …. 2.55 refusal …. 2.71 character grounds, on …. 2.72 request for further information …. 2.62 time limit to provide …. 2.63 solicitor, by …. 2.39 form 956, requirement for …. 2.39 suspension of processing of …. 2.49 time limits …. 2.63 where not applicable …. 2.64 validity …. 2.2, 2.48 approved forms …. 2.5 personal identifiers …. 2.3 requirements …. 2.3 residential address …. 2.4 scenario question …. 3.3–3.5, 3.14, 4.2–4.4, 4.15 specification of visa class …. 2.4 world time zones, effect of …. 2.36 Visa application charges

collection of …. 2.23 personal cheques not accepted …. 2.23 credit card surcharge …. 2.33 English language charge …. 2.32 first instalment …. 2.24 additional applicant charge …. 2.25, 2.42 base application charge …. 2.25 refund …. 2.25 harmonisation of …. 2.23 health services charge …. 2.29 release …. 2.31 index of …. 2.23 non-Internet charge …. 2.27 refund policy …. 2.34 scenario question …. 3.7, 4.6 second instalment …. 2.28 refund …. 2.34 subsequent temporary visa …. 2.26

Related LexisNexis Titles Cope, Quick Reference Card — Immigration Law, 2015 Fernandez, Gerkens, Yau & Ozyurek, Australian Migration Legislation Collection July 2017 Schloenhardt, Quick Reference Card — People Smuggling, 2015 Schloenhardt, Quick Reference Card — Traffi cking in Persons, 2015