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: [email protected].
All the best,
Ashish Sethi
Principal Solicitor at Migration Law Firm
NEWS
- Labor to spend $37.8m to weed out ‘bottom feeders’ among vocational education providers
The federal government will launch a $37.8m “compliance blitz” to crack down on unlawful behaviour in Australia’s vocational education and training (Vet) sector as part of a suite of measures to clean up dodgy providers in international education. Read the article here.
- Tighten the screws’: A crackdown on student visas is looming
Education Minister Jason Clare said changes to be announced next week would close loopholes that allow people to enter the country on student visas to work in Australia without actually studying. Read the article here.
- Cut immigration to 200,000 to improve housing affordability
Australia’s annual immigration intake must shrink to 200,000 people – less than half of the current 500,000-odd – to avoid overwhelming government efforts to boost supply and improve housing affordability, AMP chief economist Shane Oliver said. Read the article here.
- Home Affairs boss stands aside for investigation of texts leak
Mike Pezzullo faces calls to resign amid expectations he will not survive an independent inquiry into hundreds of text messages he sent to Liberal Party powerbroker. Read the article here.
IMMIGRATION UPDATES
- Invitation Round for Canberra Matrix Opens
The next round of invitations will be held before 16 October 2023. The ACT has a fixed number of nomination places available each month. The highest ranked Matrix in each occupation were invited to apply for ACT nomination. The cut‑off for selection depended on the remaining monthly allocation, the date and time of Matrix submission, occupation cap and demand. The greater the demand for an occupation, the higher the rank of the Matrix score invited.
As per the notification there are about 55 invitations for the 190 nominations for the residents and about 57 invitations for the 491 nominations for the residents.
As for the overseas applicant there are about 43 invitations for the 190 nomination and 140 invitations for the 491 nominations.
For more details: https://www.act.gov.au/migration/resources/canberra-matrix-invitation-round
- Queensland has opened its doors for skilled migrants for this financial year of 2023-24
Queensland has now opened its state nomination skilled migration program, on 5 September 2023.
As per the notification Queensland will begin the series of invitation from the end of September 2023. Due to reduction in the allocation from the Department of Home Affairs, therefore the nomination program is expected to be very competitive.
For more details: https://migration.qld.gov.au/news/important-announcement-migration-queensland-program-opening-for-2023-24
- South Australia opens its doors for the 2023-24 General Skilled Migrants
The South Australian Government has published the state’s Skilled Occupation List for 2023- 24.
South Australia has moved to a Registration of Interest (ROI) process to manage strong demand from potential applicants living and working in the state against a limited allocation of nomination places.
South Australia will be prioritising the retention of the International Graduates and Temporary Visa Holders. The targeted candidates would be overseas workers in the sector linked to Trades and Construction, Defence, Health, Education, Natural and Physical Science and Social and Welfare for this invitation round.
South Australia is also seeking highly skilled overseas workers with either having experience working in the defence industry, and/or highly specialised skills in the digital and critical technologies sectors. Thereof, who can make a strong contribution to the state’s fast-growing businesses.
For more details: https://www.migration.sa.gov.au/news-events/2023-24-general-skilled-migration-program-now-open
- Tasmania 2023-24 Program Allocations
Only minor changes have been made to the program for 2023-24. These include:
- extending eligibility for subclass 190 nomination to all occupations in the Tasmanian Skilled Employment pathway
- an updated Tasmanian Onshore Skilled Occupation List
- changes to requirements for massage therapists
- changes to income thresholds based on updates to Australian median and average earnings and the Temporary Skilled Migration Income Threshold
- minor changes to priority attributes
- more detailed policy guidance in the Additional Information, Exclusions and Definitions section of the Migration Tasmania website.
The service fee to apply for nomination has increased to $330 (including GST). There is no charge to submit a Registration of Interest.
For more details:https://www.migration.tas.gov.au/news/migration_tasmania_application_gateway
Invitation round details are here:
https://www.migration.tas.gov.au/news/processing_times_and_allocation_usage
- NSW will be opening their program shortly
To better address the evolving skills shortages across the state, NSW is shifting from publishing a list of eligible ANZSCO unit groups to a new sector-focused approach…. The sectors we’ve identified align closely with the skills shortages in NSW and include:
- Health
- Education
- Information and Communication Technology (ICT)
- Infrastructure
- Agriculture
Although our focus this program year is on key sectors, high-ranking EOIs submitted in non-priority sectors may also be considered; however, due to the exceptionally high demand and limited places, we strongly recommend anyone considering NSW nomination to also explore all other migration options available to them.
- Resumption of the Approved Destination Status Scheme
The Australian Government has started the Approved Destination Status (ADS) scheme again. The ADS scheme is a travel visa arrangement between the Australian and Chinese governments. This scheme allows Chinese tourists to travel to Australia as part of an approved tour group.
The first ADS tourists arrived in Australia in August 1999. The Chinese Government announced that Australia has been included on the list of countries for China’s ADS scheme. Visitor (subclass 600) (ADS stream) visa applications can be lodged from 25 September 2023.
For more details: https://immi.homeaffairs.gov.au/news-media/archive/article?itemId=1124
- A new reciprocal Work and Holiday Visa between Australians and Philippines
This new Work and Holiday visa arrangement will allow up to 200 young Filipinos and Australians each year to enjoy a 12-month holiday in each other’s country, during which they may undertake short-term work and study. Details in relation to the commencement will be provided once arrangements have been finalised.
See more details here: https://www.pm.gov.au/media/stronger-partnership-between-australia-and-philippines
- Department of Home Affairs is looking for feedbacks
Now is the time to make your move and bring an impactful change to the immigration regulations. The Department of Home Affairs is looking for feedback on the following:
- Revamping Skill Assessment for Migrants and Local Businesses
The Government is inviting input from stakeholders on the new guidelines governing the evaluation of skilled migration assessing organizations. This outlines preliminary principles and criteria, describes existing practices in skills assessment, and proposes enhancements to streamline the assessment procedure.
The deadline to make submissions is October 23, 2023.
For more details: https://minister.homeaffairs.gov.au/AndrewGiles/Pages/skills-assessment-reform-migrants-local-businesses-12092023.aspx
- Department of Home Affairs’ regulation of migration agents
The aim of this audit is to evaluate how well the Department of Home Affairs regulates migration agents. The Australian National Audit Office encourages the public to provide information that can be considered during the performance audit process.
The department is calling for feedbacks till 28 January 2024.
For more details: https://www.anao.gov.au/work/performance-audit/department-home-affairs-regulation-migration-agents
- The Department of Home Affairs is looking for applicants for the Australian Refugee Advisory Panel
The closing date for this expression of interest has been extended to Saturday 7 October 2023 at 11:59 pm AEDT.
Apply now: https://jobs.homeaffairs.gov.au/…/Boro…/943771210/
- The Department of Home Affairs is seeking submissions for the Multicultural Framework Review
Share your views on Australian multiculturalism – what’s working, what’s not, what could be done differently – and help shape its future.
Learn more: https://www.homeaffairs.gov.au/…/multicultural…
RECENT DECISIONS
- Student visa cancelled at airport – interlocutory injunction granted
MIGRATION – where an interlocutory injunction was previously granted restraining the applicant’s removal from Australia – whether the injunction should be extended – prima facie case – balance of convenience – orders made extending the injunction until after determination of the substantive application after a hearing listed for the following week
Read the decision: Mohammed v Minister for Immigration, Citizenship And Multicultural Affairs [2023] FedCFamC2G 839 (13 September 2023)
- Another decision on acquiring Australian citizenship by virtue of s12 and whether the period of 8 years spent overseas was too long
ADMINISTRATIVE LAW – citizenship – application for judicial review of decision refusing to issue certificate of evidence of Australian citizenship for Australian-born child of foreign nationals — where parents have resided in Australia for many years on a series of temporary visas and child travelled to India at the age of three months to be cared for by his grandparents while his mother was studying in Australia, whether child an Australian citizen by virtue of s 12(1)(b) of the Australian Citizenship Act 2007 (Cth) — where the child remained in India for over eight years while his parents lived in Australia, whether throughout the first 10 years of his life the child was “ordinarily resident” in Australia as defined by s 3 of Citizenship Act in that Australia was his “permanent abode” and his absence was temporary – where parents gave evidence about their intentions, whether, and to what extent, weight should be given to that evidence
Read the decision: Tatla by his litigation guardian Grewal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1138
- Was the one-sentence response to a written question, for a protection visa application, “glib”?
MIGRATION – claim for protection visa under s 36(2)(a) or (aa) of Migration Act 1958 (Cth) – where visa application required to provide written one‑sentence response to written question in biodata interview asking reason for seeking protection – where Tribunal raised concerns with visa applicant about one‑sentence response – where Tribunal characterised translation of response to written question as “glib” – whether Tribunal failed to consider important evidence regarding biodata interview – Held: appeal dismissed
Read the decision: BIQ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1084
- Single, white, woman with no male children or relatives to support her from South Africa is found to be a person in respect of whom Australia has protection obligations under s 36(2)(aa) – complimentary protection
REFUGEE – protection visa – South Africa – race – Afrikaner – imputed political opinion – white person perceived to have supported or benefited from previous apartheid government – particular social group – single white woman with no male children or relatives to support her – victim of crime – fear of harm by black people – effect of medical condition on inconsistency of evidence and claims – mental condition renders applicant vulnerable to environment of generalised crime – complementary protection – state protection – decision under review remitted
Read the decision:2000491 (Refugee) [2023] AATA 2736 (6 April 2023)
- Self-sponsored applicant – sponsorship bar
MIGRATION – sponsorship cancellation or bar – sponsorship obligations – false or misleading information – working in the nominated occupation of Café or Restaurant Manager – applicant ceased trading and departed the location – two businesses closed – business temporarily changed to grocery store – allegations against a previous migration agent – decision under review varied
Read the decision: Paxton Trade & Investment Pty Ltd (Migration) [2023] AATA 3019 (11 September 2023)
- AAT considers a Professional Year and its validity
MIGRATION – Skilled Work Regional (Provisional) (Class PS) visa – Subclass 491 – Skilled Work Regional (Provisional) – occupation of Accountant (General) – professional year course with no expiry date – recently attained English language competency – timing of language test – referral for Ministerial Intervention – residence and work in a designated regional area – decision under review affirmed
Read the decision: Ndhlema Kakunka (Migration) [2023] AATA 2896 (28 August 2023)
- Cancellation overturned all thanks to the Spouse
MIGRATION – cancellation – Subclass 485 (Temporary Graduate) – applicant convicted of an offense – family and financial hardship – assessed low risk of reoffending – family responsibilities in Nepal – recent contribution to the community – disruption to wife’s studies – decision under review set aside
Read the decision: Kattell (Migration) [2023] AATA 3014 (12 September 2023)
- The Applicant returned to work for 3 days and its effect on condition 8107 and the subsequent cancellation of the visa
MIGRATION – appeal from judgment of Federal Circuit and Family Court of Australia (Division 2) dismissing an application for review of a decision of the Administrative Appeals Tribunal (Tribunal) – where applicant contended that he had worked for several days in December 2018 – where Tribunal found that applicant’s evidence to be inconsistent – where Tribunal found that the applicant ceased employment in September 2018 – where evidence was not inconsistent – whether Tribunal’s error was jurisdictional
Read the decision: Guggal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 641
- The Applicant obtained a skills assessment based on an RPL as the holder of a student visa, and its effect on the GSM Application
MIGRATION – Skilled Work Regional (Provisional) visa– Subclass 491 – Café or restaurant manager – applicant held a valid skills assessment– course undertaken by the applicant while studying FMEDGE is not a registered course within CRICOS – decision under review affirmed
Read the decision: Perez (Migration) [2023] AATA 2800 (30 June 2023)
LANDMARK DECISION ON MIGRATION
Arora v Minister for Immigration and Border Protection (2016) FCAFC 35
Facts of the Case:
- In this case, there are two appellants, Mr. Arora and Mr. Singh, who both applied for skilled visas in Australia.
- Mr. Arora applied for a Skilled (Residence) Visa, which required a skills assessment from a “relevant assessing authority.”
- Mr. Arora submitted a skills assessment issued by Trades Recognition Australia (TRA) with his visa application. However, it was later revealed that this assessment had been obtained with a fraudulent reference letter from a cake shop.
- The delegate reviewing Mr. Arora’s visa application concluded that the reference letter was a “bogus document” within the meaning of Australian immigration law. This determination was not challenged.
- Mr. Singh, like Mr. Arora, applied for a skilled visa in Australia with a nominated occupation of pastry cook. He also submitted a false work reference from a cake shop, along with a skills assessment from TRA.
- It was established that Mr. Singh’s reference letter was also a “bogus document”.
- Both Mr. Arora & Mr. Singh argued that a “bogus document” must be “in a material particular”.
- They argued that since the TRA had no authority to issue the skills assessment, the bogus documents submitted were not material to the visa application.
Decision:
The court ruled against both appellants, upholding the decision that they were not eligible for the grant of visa due to the submission of a “bogus document” per Public Interest Criterion 4020 (PIC4020)
The court rejected the arguments of both Mr. Singh & Mr. Arora, holding that there was no requirement in the law that the falsity of a “bogus document” needed to also be “false or misleading in a material particular”.
Considerations:
The Court has been very clear on this; whilst the wording of PIC 4020(1) mentions ‘a bogus document or information that is false or misleading in a material particular’, it is important to consider that the judicial interpretation of this is as follows:
- A bogus document, OR
- Information that is false or misleading in a material particular.
and NOT
- A bogus document (…in a material particular), OR
- Information that is false or misleading (…in a material particular)
In short, if a “bogus document” is submitted, whether or not it has any relevance to the application, it is likely to be fatal to the application.
The court held that,
Properly construed there is no requirement in PIC 4020(1) that the falsity of a bogus document should be relevant to the criteria that the Minister is considering. PIC 4020(1) and the definition in s 5 address separately the falsity, respectively, of information (in PIC 4020(5)) and bogus documents (in s 5). Each has its own particular regime. The definition of ‘bogus document’ in s 5 is not concerned with the truth or otherwise of statements but with the reliability of documentation. It would be a most unworkable outcome if the Minister could not rely on the fact that a document was counterfeit but had to consider, in turn, whether the statements contained in it were, in any event, correct and otherwise relevant to the matters he had to consider. As a matter of formality, it is the definition of ‘bogus document’ in s 5 which will apply unless ‘the contrary intention appears’. For the reasons just given, the contrary intention does not appear and the concept of a ‘bogus document’ is not subject to the gloss suggested by Mr Arora.
Read the Decision here: Arora v Minister for Immigration and Border Protection (2016) FCAFC 35
