Migration Monthly Newsletter 2 September 2023

Welcome to our monthly newsletter on Australian migration!

The Migration Monthly Newsletter provides news and updates on immigration law and policy, analysis of case law and information related to immigration matters in Australia.

If you have suggestions, comments, or something you would like to contribute to our newsletter, please feel free to email them through to us: ashish@migrationlawfirm.com.au.

All the best,
Ashish Sethi
Principal Solicitor at Migration Law Firm

NEWS

Closure of the Pandemic Event Visa (Subclass 408) announced by the Department of Home Affairs on 31 August 2023

From 2 September 2023, the Pandemic Event visa will only be open to applications from existing Pandemic Event visa holders. All other visa holders will be ineligible for the Pandemic Event visa. Read the official announcement here.

Country draws a lot of doctors, but cannot provide housing for them

The migrant doctors are the lifeline to the failing health system in Western Australia, but they are made to live in vacation homes. The Irish doctors relocated to the state after being promised a life of sun, sand, and sea as part of a government policy, the future of which is now being questioned. 442 Irish doctors entered Australia on skilled worker visas the previous year, and a similar number is anticipated this year. The state government should assist, according to the Australian Medical Association. The state’s administration claims to be fully cognizant of the housing crisis. A primary objective of the health department is to hire medical graduates on skilled visas, however this plan currently has its own difficulties. Premier Roger Cook requests that the 70% reduction on nominated migrants to Western Australia be lifted in a letter to the prime minister. This year, more than 8000 spots were awarded; according to the projections, that number will drop to just around 2000. Read the article here.

Afghan refugee with permanent residency faces possible visa cancellation

The applicant, an Afghan refugee with permanent residency, had been asked to provide a taskira (Afghanistan’s primary identity document) alongside with his citizenship application. The document provided couldn’t be verified and was therefore suspected of being counterfeit. The applicant was informed his visa would be cancelled. Read the article here.

Steps being taken to restore the integrity of the Australian migration system

The Australian Border Force (ABF) has penalized more than 140 dishonest companies for abusing migrant employees in Australian businesses in the most recent fiscal year. Investigating and punishing exploitative employers has been a priority for the Australian Department of Home Affairs (DHA). Christine Nixon, a former police commissioner, has made some recommendations to lessen abuse of the visa system including preventing individuals operating unregistered migration enterprises from abroad and increasing funding for monitoring efforts ongoing. Read the article here.

Challenges that the Parent Visa Program is still facing

Parental visa processing periods are too long, and this issue is just becoming worse. At the present annual cap of 8500 parent visas, the processing of the more than 130,000 applications currently being handled will take an average of 15 years. With 130,000 in the system, the estimate is that each application, which affects 650,000 people, has at least 5 relatives in Australia emotionally invested in it. People continue to apply for parent visas in the hopes that processing will advance in the future. Read the article here.

Due to this “pervasive” issue, refugees in Australia are having trouble renting a property

The struggle to find a new home is difficult since rental vacancy rates are so low, but for refugees it is even more difficult. As per a study that was just published in the peer-reviewed international journal Housing Studies, discrimination against refugees in the competitive rental market occurs frequently. The article, which was published last month, concentrated on immigrants in Adelaide who had large families with at least four children. Refugees are at a disadvantage compared to other tenants who have a rental history because of the persistent shortage of apartments nationally and the lack of a formalized process for selecting tenants, according to lead author Anna Ziersch. The federal and state governments, according to McKibben, should cease using the “smoke and mirrors of populist politics” and instead address the rental situation head-on by putting more houses on the market.Read the article here.

IMMIGRATION UPDATES

HWC no longer required after 16 September (thank you Camilla Saad for your input)

From 16 September, IMG’s looking to work in primary care within Australia will no longer be required to submit a HWC as a part of their visa application. Read more here.

Action to end rorts in international education

As international education is Australia’s 4^th biggest export, the Albanese Government is announcing a package of measures to support integrity in the international education system and to support genuine international students. Immediate steps include closing a loophole that allowed the misuse of study arrangements for work, addressing the issue of “concurrent enrollments”. This change is accompanied by a 17% increase in the savings requirement for student visas, now set at $24,505, as well as heightened scrutiny of high-risk applicants and potential suspension certificates for high-risk education providers under Section 97 of the ESOS Act. These comprehensive measures demonstrate a commitment to combating fraud and exploitation, with further strategies to enhance the sector’s integrity outlined in the upcoming Migration Strategy. Read more here.

A significant decline in visa nomination allocations for Australia’s Skilled Migration Program in 2023–2024

The reduction in visa nomination allocations for Australia’s Skilled Migration Program in the 2023–2024 period marks a significant shift in the country’s approach to managing its skilled migrant intake. The impact of this reduction will reverberate across various sectors, influencing economic growth, workforce development, and international competitiveness. Australia’s response to this reduction, including investments in upskilling and innovation, will be a determining factor in shaping the country’s future trajectory in the global talent landscape. States and Territories each assess eligible applicants against criteria unique to their jurisdiction.

In a move that has drawn significant attention and debate, the visa nomination allocations for the Skilled Migration Program in Australia for the year 2023–2024 have witnessed a significant reduction. This will impact several visa categories, including Employer Sponsored, Skilled Independent, Regional, and State/Territory Nominated visas. The Business Innovation and Investment Program (BIIP) has also faced a substantial cutback, emphasizing a renewed focus on immediate workforce shortages. More information on relevant state & Territory Skilled Migration programs can be found:

NSW: https://www.nsw.gov.au/visas-and-migration/news-and-updates/2023-24-program-allocations
South Australia: https://migration.sa.gov.au/news-events/skilled-and-business-migration-update-2023-24-nomination-allocations
ACT: https://www.act.gov.au/migration/skilled-migrants
Western Australia:https://migration.wa.gov.au/our-services-support/state-nominated-migration-program

Current processing times and expedition requests for MSA & MPA and the TRA Job Ready (JRP) programs

As per the new notification the Migration Skills Assessment (MSA) and Migration Points Advice (MPA) initiatives are presently encountering a surge in the volume of applications. As a result, the processing durations are being extended beyond the 120-day mark for assessments to be finalized. Read more here. The TRA Job Ready Program (JRP) is also facing a surge in applications, causing processing times to extend beyond expectations. However, TRA anticipates that these delays will not impact the overall duration to complete all stages of the JRP. Read more here.

RECENT DECISIONS

Reg 5.19 of the Migration Regulations 1994 (Cth) – whether the term “position” in reg 5.19 is confined to a role at a single location

MIGRATION – reg 5.19 of the Migration Regulations 1994 (Cth) – appeal from a single judge of the former Federal Circuit Court of Australia – primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal – appellant applied for a Regional Employer Nomination (subclass 187) visa – the application was denied on the basis that the appellant’s employer’s nomination application had not been approved – whether the Tribunal erred by founding its decision to refuse the visa on its refusal of the nomination application which was affected by jurisdictional error – whether the term “position” in reg 5.19 is confined to a role at a single location – whether the Tribunal asked itself the wrong question when it considered whether the nomination criteria in reg 5.19(4) was satisfied by constraining the consideration of “position” to the description given on the visa application form and failed to consider a claim raised on the nomination application – whether an error in the Tribunal’s nomination application decision can lead to jurisdictional error in the Tribunal’s visa decision – appeal dismissed

Read the decision:Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 123

The first immigration related matter (I believe) concerning the secret ministerial appointments in the last government

“There is, then, no constitutional imperative for concluding that the appointments of Mr Morrison or Mr Morton as Minister for Home Affairs brought with it the cessation of Ms Andrews’ tenure. I do not accept that, when she made the Cancellation Decision, Ms Andrews lacked authority to that end for want of a continuing commission. It follows that I would reject this aspect of the applicant’s fourth ground of challenge” – Snaden J at [124].
MIGRATION – application for judicial review of visa cancellation decision – where decision made on national interest grounds – where applicant subject of adverse security assessment under the Australian Security Intelligence Organisation Act 1979 (Cth) – where applicant failed to meet character test pursuant to s 501(6)(g) of the Migration Act 1958 (Cth) – whether the Minister properly construed Australia’s international non-refoulement obligations – whether “generalised risk of harm” sufficient to engage international non-refoulement obligations – whether national interest gives rise to obligation to consider international non-refoulement obligations – whether failure to read and consider relevant materials – whether the Minister impermissibly engaged in a de facto delegation – whether Minister’s decision affected by apprehended bias – whether Minister’s decision affected by new species of jurisdictional error – application dismissed

Read the decision: CEU22 v Minister for Home Affairs (No 2) [2023] FCA 867

PTE English test expired at the time of invitation – saved by the Member

MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled – Independent) – occupation of Accountant (General) – English language proficiency – English Advanced (CAE) test results disqualified – investigation of test centre malpractice at overseas agency – further valid Pearson (PTE) English test result provided – decision under review remitted.
Read the decision: Ghani (Migration) [2023] AATA 2570 (17 July 2023)

An applicant for the Subclass 189 Visa with only 40 points claims 105 points

MIGRATION – Skilled Independent (Permanent) visa – Subclass 189 (Skilled – Independent) – points-based visa – occupation of Early Childhood (Pre-Kindergarten) Teacher – decision under review affirmed.

Read the decision:Foong (Migration) [2023] AATA 2573 (17 July 2023)

Long periods of unpaid leave lead to employer being sanctioned

MIGRATION – sponsorship cancellation or bar – equivalent terms and conditions of employment – ensuring equivalent terms and conditions of employment – period of unpaid leave overseas approved – extended Leave Without Pay period for personal reasons – annual guaranteed earnings not paid – decision under review affirmed
Read the decision: 5 Spice Indian Cuisine Pty Ltd (Migration) [2023] AATA 2617 (24 July 2023)

A PIC 4020(1) and (2) issue and the waiver

MIGRATION – Skilled Regional (Provisional) visa – Subclass 489 (Temporary Graduate) visa – employment as a Chef was found to be false or misleading – failed to meet PIC 4020(1) – applicants’ employment in occupations in demand – there are compelling or compassionate circumstances in the case – decision under review remitted
Read the decision: Harpreet Singh (Migration) [2023] AATA 2360 (27 June 2023)

Visa cancelled as a Sponsor for a Partner Visa application claimed to be in a de facto relationship at the time he was dependent on his mother’s partner visa application

MIGRATION – cancellation – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – change to circumstances not notified – young adult dependent child secondary applicant to mother’s visa – de facto relationship declared in own partner’s visa application – date relationship started – progression from work friend needing accommodation living with applicant and parents to steady relationship to moving into own accommodation – documentary evidence – bank accounts, international travel and statutory declarations and photos – discretion to cancel visa – continuing relationship and young Australian citizen child – partner’s visa refused as consequence – mandatory legal consequences – decision under review set aside
Read the decision: Suporn (Migration) [2023] AATA 2716 (11 August 2023)

LANDMARK DECISION ON MIGRATION

Minister for Immigration, Citizenship and Multicultural Affairs v Sidhu by his litigation representative Kaur [2023] FCAFC 133

Facts of the Case:

Master Gurnoor Singh Sidhu was born in Australia in 2010.
His father applied for Australian citizenship for him under the Citizenship Act.
The key issue was whether Master Sidhu met the requirement of being “ordinarily resident in Australia throughout the period of 10 years beginning on the day [he was] born.”
The citizenship was initially granted but later cancelled by the Department of Immigration and challenged by the Applicant.
The Minister appealed, alleging errors in the primary judge’s interpretation of the Citizenship Act.

Decision:

The judge ruled that Master Sidhu had been ordinarily resident in Australia since his return in October 2016 and was eligible for citizenship by birth under the Citizenship Act.
In its decision, the court analysed the definition of “ordinarily resident” in the Citizenship Act.
The primary judge had derived several propositions from prior cases about interpreting this term, emphasizing the relevance of parental intentions for minors. The judge’s analysis included cultural considerations, periods of absence, visa status, and connections with the Australian community.
The judge found that while Master Sidhu had significant absences from Australia, his parents’ intentions were crucial in determining his ordinary residence. The Minister’s arguments against the focus on parents’ intentions and characterization of evidence were rejected.
The court upheld the primary judge’s decision, emphasizing the importance of considering parents’ intentions and other relevant factors in determining ordinary residence for minors under the Citizenship Act.

Considerations:

It is important to consider that this decision relied on specific consideration of the Applicant’s circumstances. It does not mean that a child can be born in Australia, be absent from Australia for years and return on their 10^th birthday and be automatically eligible for citizenship.
A child still needs to have been ‘ordinarily resident’. What is important about this decision is the interpretation of ‘ordinarily resident’. Interestingly, the fact that a child is physically present in Australia or not, can be outweighed by certain considerations such as:

Parents’ Intentions: The judge considered the intentions of Master Sidhu’s parents regarding their residence. While Master Sidhu had significant absences from Australia, the judge noted that these absences were the result of his parents’ wishes. It was found that Master Sidhu’s parents had temporarily sent him to India to be cared for by his grandparents while they were unable to provide suitable care due to study and other circumstances.
Temporary Purpose of Absence: The judge emphasized that Master Sidhu’s absence from Australia was temporary and aligned with the parents’ intentions. Even though he was absent for a significant period, it was viewed as a result of the exigencies of his family’s situation and his parents’ firm intention to have him return to Australia once they were in a position to care for him themselves.
Parental Decision-Making: The judge considered that the decision to send Master Sidhu to India was made by his parents. The fact that his parents made the decision as to where he would stay from time to time indicated that his parents’ intentions were the driving factor in his living arrangements. As a child, he is not responsible for this decision making.
Cultural Considerations: The judge acknowledged cultural considerations in the Indian/Australian community. The judge found that it is typical in Indian culture for grandparents to take care of babies whose parents are not able to care for them in Australia. This cultural aspect played a role in the judge’s determination that the temporary absence was consistent with the parents’ intentions.
Parents’ View of Australia as Home: The judge concluded that throughout the first 10 years of Master Sidhu’s life, his parents considered Australia to be their home and were ordinarily resident there. The judge noted that even though the parents’ visa status and long-term plans were not firm initially, their intentions and views regarding Australia as their home were consistent over time.

Read the decision here:Minister for Immigration, Citizenship and Multicultural Affairs v Sidhu by his litigation representative Kaur [2023] FCAFC 133