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SZVWF v Minister for Immigration and Border Protection and Anor [2016] – Obligation of Tribunal to Consider “all” Material

 

The recent case of SZWVF v Minister for Immigration and Border Protection and Anor [2016] FCCA 2532 before the Federal Circuit Court involved an application for a Protection (Class XA) visa and considered whether the Administrative Appeals Tribunal (“the Tribunal”) has an obligation to consider claims which are not expressly raised by the applicant before the Tribunal.

The applicant in this case was a national of Yemen, however, was born in Saudi Arabia and lived there for most of his life. The conditions in Saudi Arabia deteriorated due to the Gulf War, which led the applicant to come to Australia and apply for a Protection visa. The applicant claimed to fear persecution upon returning to Yemen due to him never having lived in Yemen and being perceived as a “stranger” by Yemenis. This claim was rejected by the Department of Immigration and Border Protection (“the Department”) and was not considered before the Tribunal upon review.

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NZ SCV 2 AUPR

Budget 2015-16 Measures confirm new Permanent Residence pathway for New Zealand Special Category Visa holders living in Australia

 

Yesterday’s Budget 2015-16 reconfirmed that starting from 1 July 2017, a new permanent residence visa pathway will be available to New Zealanders holding a subclass 444 Special Category visa holders (“SCV”) who have been living in Australia for at least five years and have shown a commitment and contribution to Australia.

The Australian government announced the decision on 19 February 2016 in acknowledgement of Australia’s bilateral relationship with New Zealand.

These new arrangements will provide SCV holders from New Zealand a streamlined pathway to apply for Australian permanent residence status if they meet certain visa requirements. Applicants must demonstrate they:

  • were an ‘ordinary resident’ in Australia on 19 February 2016;
  • have been resident in Australia for the five years immediately prior to the visa application;
  • have taxable income at or above the Temporary Skilled Migration Income Threshold (TSMIT), currently at $53,900, for the period of residence (“the income test”); and
  • meet mandatory health, character and security checks.

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Permanent Residence Visa – Successful Ministerial Intervention Request

 

MIN intervention

We successfully assisted our client S. Ong in this case in obtaining a permanent residence visa through an application for ministerial intervention. We were initially contacted by a community organisation that referred Ms Ong’s matter to us. Ms Ong, 76 years of age, had remained unlawfully in Australia without a valid visa for almost 30 years since arriving from Malaysia on a tourist visa that expired in 1985. Since her arrival in Australia, Ms Ong has held various domestic work roles and has also participated in volunteer work for many years.

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Student Visa – Genuine Temporary Entrant (“GTE”) and Condition 8516 (“SVP”)

 

visa_grant_GTEIn this case, our client (S. Huang) sought our assistance in responding to a letter of adverse information from the Department of Immigration and Border Protection (“DIBP”) regarding his application for a further subclass 573 Student visa.

In the letter, DIBP stated that Mr Huang had breached condition 8516 of his previous Student visa by not studying an eligible course at an eligible education provider under the streamlined visa processing (“SVP”) arrangement. The DIBP had also received adverse information from Mr Huang’s previous education provider that he had breached visa condition 8202 by not achieving satisfactory course progress. Additionally, the fact that Mr Huang had not completed a course for nearly 3 years further fuelled the DIBP’s belief that Mr Huang did not intend to genuinely stay in Australia on a temporary basis.

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Policy Change – 457 program not intended for “Self-Sponsorship” – Is it a lawful policy?

 

There have been many discussion about the recent policy change made by the Department of Immigration and Border Protection concerning the assessment of applications in the 457 program. One of the significant change that has caught many people’s attention and concern is the issue of the so-called ending of “self-sponsor” under the 457 program.

On 21 November 2015, the Department added the following policy statement to the 457 visa Procedural Advice Manual 3 (“PAM3”):

The intent of the 457 program is to enable Australian businesses to temporarily fill short term skill shortages with overseas workers when they cannot find a suitably qualified or experienced Australian citizen or permanent resident to fill the position. The program is not intended to be used for non-citizens to establish a business in Australia and self-sponsor themselves; there are other visa pathways available for such purposes.

Many have interpreted this policy statement as you cannot use a business which you have established to sponsor yourself for a position in that business. This view is also reflected in a statement made in the Migration Institute of Australia’s MIA Notice 11 dated 23 February 2016, it states “[t]he use of the 457 program to self sponsor has effectively been closed…”

On the face of the policy, the interpretation of many and the statement made by MIA appears to be correct. However, in our opinion, it is necessary to consider this policy statement more closely having regards to the relevant legislative requirement to which this policy seeks to provide guidance to decision-makers.

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Student Visa – Unsatisfactory Course Attendance

 

In this case, our client B. Gurung engaged our assistance to challenge a decision made by the Migration Review Tribunal (MRT) regarding his further subclass 572 Vocational Education Student visa application. The MRT affirmed the Department’s decision to refuse the application on the basis that our client had not complied with the conditions of his previous Student visa. In particular, it was held that our client had not satisfied compulsory visa condition 8202(3) of satisfactory course attendance.

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Student Visa – Genuine Temporary Entrant (GTE)

 

We successfully assisted our client D. Jin in overturning a decision made by the Department of Immigration and Border Protection to refuse his application for a further subclass 572 Vocational Education Student visa. The Department was not satisfied that our client intended to genuinely stay in Australia on a temporary basis due to the large number of unrelated courses that he had taken over a period of seven years and his failure to complete any courses.

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Partner Visa – Separation and Incompatible Occupation to Marriage

 

Our client L. Yin and her partner sought our assistance in this case to overcome a Partner visa refusal from the Department of Immigration and Border Protection. Our client’s partner had participated in a drug rehabilitation program and the couple was unable to live together for a period of time as a result. Due to this, the Department was not satisfied that the couple possessed a genuine and mutual commitment to a shared life as husband and wife. To further complicate the matter, our client was located by the Department working in an occupation that would ordinarily be incompatible with marriage.

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DEBT OWED BY BENEFICIARY

 

One question which executors (or estate administrators) find quite challenging is: What action can be taken concerning a debt owed to the estate by a beneficiary of the estate? We have provided advice to executors and administrator on the procedure to be taken in such cases. This is a difficult problem where the beneficiary does not have the funds to pay the debt before the assets of the estate may be distributed.

A recent case concerned a loan which had been obtained by the deceased and his de facto spouse (“W”). The bank was given a mortgage of the residence solely owned by the deceased to secure the loan. It had been agreed that the bank could, if necessary, proceed to recover the loan from either the deceased or W or both of them. (more…)

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457 Visa Cancellation – Non-commencement of Employment

 

In this case, Mr C. He engaged us after having received a letter from the Department of Immigration and Border Protection notifying him of an intention to cancel his subclass 457 Temporary Work (Skilled) visa. The Department based this on the fact that our client had breached one of the visa conditions, which required that any period of unemployment should not exceed 90 consecutive days.

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