Visa Cancellation at Airport: Is Ministerial Intervention an option?

 

In recent days, there have been several media reports of the controversy surrounding the Home Affairs Minister Peter Dutton’s decision to use his ministerial discretionary power. It has been reported that in 2015 Mr Dutton intervened in three au pair from being deported after arrival in Australia each on a Tourist visa. There is no suggestion Mr Dutton acted beyond his power. The au pairs would most likely to have had their Tourist visa cancelled and detained as an unlawful non-citizen before Mr Dutton would have had the power to grant them a new Tourist visa.

Whoever assisted and successfully made representations to Mr Dutton’s office on behalf of the au pairs would have done a task that in our view is generally not possible. This is because visa cancellation and the deportation process at an airport happens very quickly, within few hours with no opportunity to obtain legal advice or representations. During the process, a person whose visa is being considered for cancellation does not get an entitlement to make telephone calls and are often only given a very short time such as 10 to 15 minutes to consider and give reasons why their visa should not be cancelled. Once a decision is made to cancel the visa and refuse the person’s entry into Australia, that person is usually deported on the next available flight often on the same day and within hours.

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Second attempt at occupation caveats: Is it valid now?

 

On 28 June 2017, a number of legislative instruments and amendments to the Migration Regulations 1994 were introduced:

  1. give the Minister for Immigration power to specify occupation caveats;
  2. revise the skilled occupation lists applicable to the skilled migration programme and the subclass 457 and 407 visa programmes; and
  3. changes to English requirement (including removal of many English exemptions) and lower the age requirement for subclass 186 ENS and 187 RSMS visa programmes.

Most of the occupation caveats that were introduced on 19 April 2017 for the 457 visa programme remain with some changes and the caveat system now also extends to the subclass 186 ENS visa programme. However, most interestingly is the government’s decision to specify the occupation caveats in these new legislative instruments in a completely different structure than the previous one made on 18 April 2017. In addition, it introduced Migration Amendment (Specification of Occupations) Regulations 2017 (“Amending Regulations) to amend the relevant provisions in the Migration Regulations 1994 to extend the Minister’s power to specify occupation. The extended power sought to allow the Minister to specify applicability of those occupations to a nominated person (i.e. occupation caveats). These changes appear to have been made in response to opinions expressed by a number of prominent immigration lawyers on the legal validity of the occupation caveats introduced in the last skilled occupation list which were said to be invalid by many.

What is happening here is the government having a second attempt. The question is: is it now valid?

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457 Caveat – Attention: Current 457 Employer Sponsors and Visa Applicants

 

Under the new list, there are 59 occupations with nomination restrictions, referred to as ‘caveats’ by the Department of Immigration and Border Protection. These restrictions relates to work experience, regional location and/or sponsoring employer’s business operation.

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Changes to 457, 186, 187 and Skilled Migration Programme announced on 18 April 2017: What does it mean and how does it affect you?

 

Australian Prime Minister Malcolm Turnbull announced on 18 April 2017 a significant reform to the employer sponsored skilled migration visas programme as well as the abolishment and replacement of the current subclass 457 visa.

While the abolishment of the subclass 457 Temporary Work (Skilled) visa and its replacement, a new Temporary Skill Shortage (TSS) visa will not happen until March 2018, there are many significant staged changes that will be implemented from 19 April 2017 until March 2018 which would affect existing and future visa applicant and holders of the affected visa subclasses.

As result of the announcement, we have received many queries concerning the implications on current 457 holders as well intended applicants of 457, 186, and 187 visas. This information pack summarises the changes that will occur and include a list of frequently asked questions (FAQs).

 

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Skilled Nominated Visa Cancellation – Contrary Information Received

 

In this case, Mr M. K. engaged our assistance in responding to a Notice of Intention to Consider Cancellation (“NOICC”) of his subclass 189 Skilled – Nominated Visa. The Department of Immigration and Border Protection (“the Department”) alleged that Mr K had not complied with ss 101 and 103 of the Migration Act 1958 (Cth) (“the Act”) by providing incorrect answers and bogus documents in support of his application for a subclass 189 visa.

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Yao & Ors v Minister for Immigration & Anor [2016] – Subclass 890 Business Skills (Residence) Visa – Proper Interpretation of “Net Assets”

 

In this case before the Federal Circuit Court (FCC), we successfully challenged a decision of the Administrative Appeals Tribunal (AAT) to refuse to grant our clients a subclass 890 Business Skills (Residence) visa. Notably, this case discussed the proper interpretation of a “net asset” within cl.890.212 in sch.2 to the Migration Regulations 1994 (Cth), which forms one of the main requirements that applicants must satisfy in order to obtain a subclass 890 Business Skills (Residence) visa.

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Visitor Visa – Genuine Temporary Entrant (GTE)

 

In this case, we successfully assisted our client (H. Leung) in overturning a decision made by the Department of Immigration and Border Protection (“DIBP”) to refuse to grant the visa applicant (J. Wu) a subclass 600 Visitor visa. Ms Wu originally applied for the visa for the purposes of attending her mother in law’s funeral and supporting her husband, Mr Leung. However, the DIBP was not satisfied that Ms Wu genuinely intended to stay in Australia on a temporary basis pursuant to cl.600.211 of Schedule 2 to the Migration Regulations 1994, which is an essential criteria for the grant of the visa. Due to the refusal, Ms Wu could not attend the funeral, however still wished to visit Australia to celebrate Chinese New Year with Mr Leung.

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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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