Welcome to our monthly newsletter on Australian migration!
Another month gone by, and still no news on the promised changes to the immigration program. We now have to wait till 25 November 2023 to see what changes are in store. Meanwhile, we do have lots of immigration news and some very interesting court and AAT decisions to report this month.
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
- Why immigration numbers don’t add up
While Home Affairs Minister Clare O’Neil is introducing significant alterations to the visa system, these changes are unlikely to have a substantial impact on the increasing net immigration figures. Read the article here.
- Restoring integrity to our protection system
A $160 million package is being introduced to strengthen the refugee visa system due to findings from the Nixon review, which revealed its exploitation for extending stays in Australia. Delays in processing were leading to an increase in non-genuine protection visa applications. The government will invest $54 million in real-time priority processing of Protection visa applications and add 10 judges to the Administrative Appeals Tribunal, which will be replaced by Labor next year. Home Affairs Minister Clare O’Neil expressed concern about frivolous and fraudulent asylum claims degrading the system’s integrity, causing genuine refugees to wait in limbo for up to a decade. Some individuals can remain in Australia for 9 to 11 years with work rights by using various legal avenues before deportation. The government aims to address these issues as the number of refugee visa applications has been rising since 2021, albeit remaining below pre-COVID-19 levels. Applications from Fiji for onshore humanitarian visas have significantly increased between 2017-18 and 2018-19. Read the article here.
- Legal Challenge Mounts Against Australia’s Indefinite Immigration Detention System
A legal challenge is underway in Australia to challenge the practice of indefinite immigration detention, aiming to overturn a 20-year-old high court precedent. Lawyers representing NZYQ, a stateless Rohingya refugee, argue that their client, aged 28 to 30, may face lifelong detention unless the court rules that people can only be held temporarily to facilitate deportation. The case is set for a hearing in November and marks the first full high court reconsideration of the controversial 2004 Al-Kateb decision, which authorized indefinite detention even when deportation was impossible. The Human Rights Law Centre and UNSW’s Kaldor Centre for International Refugee Law are applying to make submissions in the case, highlighting that the Al-Kateb decision has led to a steady increase in the average time spent in immigration detention, with 127 people currently detained for over five years, including stateless individuals who cannot be deported. Read the article here.
- Grattan Institute Recommends Restricting Post-Study Visas for International Students
Grattan Institute report reveals that many international graduates in Australia struggle to find suitable employment, with only half securing full-time jobs and most working in low-skilled positions earning less than $53,300 annually. Additionally, fewer graduates transition from Temporary Graduate visas to permanent residency, resulting in one-third returning to further studies to extend their stay. The report argues that recent government policies encouraging more graduates to stay longer will lead to around 370,000 Temporary Graduate visa-holders in Australia by 2030, exacerbating the issue of graduates in visa limbo and housing pressures. Read the article here.
- White-Collar Jobs in High Demand as Australia’s Labor Shortage Widens
A national labour shortage in Australia has extended its reach to affect nearly half of white-collar professions, encompassing roles such as actuaries, tax accountants, and solicitors. Surprisingly, only 1 percent of employers have responded to their unfilled job vacancies by increasing advertised salaries, according to a report from Jobs and Skills Australia. This year, the number of occupations facing a shortage of workers has grown to 332, up from 286 in the previous year, as revealed in JSA’s annual skills priority list. Read the article here.
- The Resilient ‘Simone’: A Tale of Perseverance and Courage
In the dead of night on the remote island of Nauru, a clandestine figure moves stealthily through the corridors of Australia’s offshore detention centre. This anonymous figure discreetly accesses a computer and downloads a trove of incident reports. These reports detail distressing incidents like suicide attempts, sexual violence, child abuse, harassment, and hunger strikes among asylum seekers held there. This leak constitutes the largest-ever disclosure from Australia’s offshore detention system, with 2,116 incident reports. The woman behind this leak, known as “Simone,” has remained silent until now but felt compelled to share this information to shed light on the dire situation on Nauru. She underscores the indisputable impact of these documents. Read the article here.
- Why Australia Continues to Offer ‘Golden Visas’ Despite Money Laundering Concerns
A decade ago, the Australian government introduced the concept of “golden visas” to attract high-rollers and compete with other enticing destinations. However, as time has passed, Australia finds itself one of the last Western countries still offering this program. Hidden amidst the ongoing debate is a peculiar and counterproductive visa scheme targeting the super-wealthy. Read the article here.
- Australia Launches New Strike Force to Enhance Immigration System Integrity
Australia is establishing a new Permanent Strike Force, led by intelligence agencies, to address immigration system issues, root out wrongdoers, and hold them accountable. The force aims to leverage overseas intelligence to investigate exploitation rings, flag high-risk areas, and allocate additional resources, with a $50 million funding boost for immigration compliance. Read the article here.
- Labor grapples with surprise spike in foreign students
Labor is under backbench pressure to reverse policies that make it easier for “lower quality” foreign university students to stay in the country and to work, as a dramatic and unexpected spike in student numbers alarm policymakers. The number of foreign student visas hit 369,979 last financial year, 52 per cent higher than the record set in 2019 new data reveals, while 660,000 international students were either in Australia or ready to come – an all-time high. Read the article here.
IMMIGRATION UPDATES
- Rising Fees: AFP National Police Check Costs on the Upward Trend
Starting from November 1, 2023, there will be a price hike for the AFP National Police Check. The fee for a Name check and a company name check will be raised to $47, while the Name and Fingerprint check will see an increase to $104.
- Invitation Round for Canberra Matrix will be held soon
Next Invitation Round for Canberra Matrix will be held before November 20, 2023. The ACT offers a fixed number of monthly nominations, with invitations extended to the highest-ranked Matrix applicants in each occupation. The cutoff for selection is determined by factors like monthly allocation, submission date, occupation demand, and cap. Higher-demand occupations receive higher-ranking invitations. To meet our annual allocation goals, the ACT is currently prioritizing 491 applicants for critical skills gaps, and we have temporarily limited invitations to this category. Read here.
- Understanding Disallowable Legislative Instruments (Australian Citizenship Amendment (Refund of Fees) Regulations 2023)
On 26th October 2023 the Minister for Immigration, Citizenship and Multicultural Affairs issued the Australian Citizenship Amendment (Refund of Fees) Regulations 2023 which makes changes to the Australian Citizenship Regulation 2016. These changes ensure that the refund amounts, as outlined in Section 17 of the Citizenship Regulation, are now calculated based on the relevant items in Schedule 3 to the Citizenship Regulation, rather than being fixed in dollar amounts. This amendment addresses issues that were not covered by the Australian Citizenship Amendment (Indexation of Citizenship Application Fees) Regulations 2023, which increased citizenship fees as of July 1, 2023. The adjustments in this instrument, affecting subsections 17(4), (5), (6), and (7) of the Citizenship Regulation, eliminate the specific dollar figures and instead ensure that the correct refund amounts align with the fee changes implemented by the Amendment Regulations on July 1, 2023. Read here.
- Migration Amendment (Biosecurity Contravention) Regulations 2023
On 26th October the Minister for Immigration, Citizenship and Multicultural Affairs issued an amended Biosecurity Contravention Regulations 2023. The Migration Act 1958 (the Migration Act) pertains to the arrival, stay, and departure of foreign individuals in Australia, including aliens and specific other individuals. The Migration Amendment (Biosecurity Contravention) Regulations 2023 (the Amendment Regulations) alter the Migration Regulations 1994 (the Migration Regulations) to broaden the criteria for visa cancellation. This change allows the Minister or a delegate to cancel a visa if they reasonably suspect that the visa holder has violated provisions outlined in the Biosecurity Act 2015 (the Biosecurity Act), including the newly added subsection 186A(1) of the Biosecurity Act. Read here.
- Migration Amendment (Giving Documents) Regulations 2023
The Migration Amendment (Giving Documents) Regulations 2023 (the Regulations) amend the previous regulation (Migration Regulations 1994). It shed lights on the requirements relating to the giving of a document relating to the proposed cancellation, cancellation or revocation of the cancellation of a visa (cancellation-related documents). Specifically, these Regulations elucidate the situations under which regulation 2.55 is relevant to document submission and explicitly make reference to the relevant sections of the Migration Act. Read here.
- Expedited Review of Abuses within Australia’s Visa System
The Australian Government has unveiled its response to the Nixon Review, an investigation into the exploitation of Australia’s visa system. In its response, the government emphasizes the importance of migrants to the country and its commitment to preventing the abuse of the migration system, ensuring the protection of visa holders and vulnerable community members. To address the issues identified in the Nixon Review, the government has introduced a series of measures based on its recommendations. Read here.
- Enhancing Regional Ties with the Pacific Engagement Visa
On October 18, 2023, the Australian Senate passed legislation to fulfill the Albanese government’s promise of introducing a new Pacific Engagement Visa. This visa will grant up to 3,000 individuals from Pacific Island nations and Timor-Leste the opportunity to become permanent residents in Australia each year. The Government looks forward to the Pacific Engagement Visa program commencing in 2024, once all remaining legislative and administrative arrangements have been approved, including by the Governor-General in Federal Executive Council. Read here.
- Enhancing the Canvas: An Approach on Understanding Immigration and Citizenship Program Administration
On 20th October 2023, Department of Home Affairs released a paper addressing addendum to the 11th edition of the Administration of the Immigration and Citizenship Program. The supplement offers insights into how Australia’s immigration program is structured and administered within the dynamic international landscape. Read here.
RECENT DECISIONS
- Landmark Legal Challenge: Application Challenges Retroactive Migration Law Amendments concerning 12 months imprisonment
MIGRATION – Application for writ of habeas corpus and declaration that item 4 of Sch 1 to Migration Amendment (Aggregate Sentences) Act 2023 (Cth) (Amending Act) is invalid – where previous Full Court judgment held cancellation of applicant’s visa invalid as applicant’s aggregate sentence of 12 months’ imprisonment not within scope of s 501(7)(c) of Migration Act 1958 (Cth) (Act) – where Act subsequently amended by Amending Act with retrospective effect to treat aggregate sentence as equivalent to sentence for single offence for purposes of s 501(7)(c)
CONSTITUTIONAL LAW – Whether impugned provisions of Amending Act constitute usurpation of, or interference with, Commonwealth judicial power – whether Amending Act impermissibly purports to “reverse” Full Court judgment – whether Amending Act has effect of withdrawing or fettering entrenched jurisdiction of High Court under s 75(iii) and (v) of Constitution
CONSTITUTIONAL LAW – Whether Amending Act extinguishes a cause of action for false imprisonment such that it effects an acquisition of property other than on just terms contrary to s 51(xxxi) of Constitution – where s 3B of Act creates right to receive compensation where “this Act” would otherwise not be valid as a result of an acquisition of property – whether acquisition of property resulting from Amending Act “results” from “this Act”
Read the decision: Tapiki v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 167 (19 October 2023)
- Student Visa Refusal Overturned Due to Inadequate Consideration of Financial Evidence.
MIGRATION – Student visa – decision of the delegate – extension of time – whether the delegate correctly applied cl 500.214 of the Migration Regulations 1994 (“the Regulations”) – inadequate reasoning – no genuine and proper consideration of the evidence – writ of certiorari issued – writ of mandamus issued.
Read the decision: Shrestha v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 906 (11 October 2023)
- Fraud or deception is necessary to trigger the operation of PIC 4020.
Read the decision: Gill v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 936 (20 October 2023)
MIGRATION – Judicial review – Administrative Appeals Tribunal decision – Partner (Residence) (Class BS) visa – citizen of India – whether PIC 4020 misapplied or misunderstood – whether constructive failure to exercise jurisdiction by reason of misapplication or misunderstanding of PIC 4020 – whether misapplication or misunderstanding of meaning of “bogus document” – whether misapplication or misunderstanding of meaning of “bogus document” was a material error – whether findings of fact irrational, illogical or unreasonable – whether irrational, illogical or unreasonable findings constitute material error ‑ whether material jurisdictional error – writs issued
- Bar on standard business sponsorship affirmed
MIGRATION – sponsorship bar – standard business sponsor – failed to satisfy sponsorship obligations, provided false or misleading information and no longer met sponsorship criteria – one employee paid less than contracted salary – COVID restrictions and flexible work hours – unpaid leave for training and because annual leave not yet accrued – skills, qualifications and employment background necessary for position – regular unpaid leave inconsistent with claim to require full-time employee – no notification of appointment of new director – employee not working in nominated occupation – workplace licence not required for position – no action by licencing authority – intra-corporate transfer of employee to company deregistered at the time – adverse information about person associated with applicant – director’s wife the director of an insolvent company – intentional, reckless and severe failure of obligations with direct and significant impact on workers – other sponsorship obligation failures identified by delegate – underpayment claimed to have been rectified – flexible hours policy removed – company registration reinstated and false information provided inadvertently – bar period now passed – decision under review affirmed
Read the decision: Cyber Power Pty Ltd (Migration) [2023] AATA 3483 (6 October 2023)
- Revocation of Visa Cancellation Decision Balances Community Safety with Exceptional Circumstances
MIGRATION – mandatory cancellation of applicant’s visa – applicant does not satisfy character test – whether another reason for the cancellation decision to be revoked – Direction no. 99 – conviction for manslaughter – sentencing remarks considered – positive assessment of applicant’s prior character – special circumstances of crime – excessive force in self-defence – primary considerations – community’s expectations weigh against the applicant – low risk of reoffending – applicant’s ties to Australia and the best interests of minor children weigh in applicant’s favour – decision under review set aside
Read the decision:Bean and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3492 (28 September 2023)
- PIC 4020 Refusal For Concealing Conviction of Spouse
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – false or misleading information– 2nd applicant had a court conviction recorded against him – applicant didn’t disclose the conviction – not satisfied that the evidence and submissions advanced by the applicant demonstrate compelling circumstances –– failed to meet the criteria in PIC 4020(1) – requirements of PIC 4020 cannot be waived – decision under review affirmed.
Read decision here: Mah (Migration) [2023] AATA 3481 (28 September 2023)
- Cancellation of Subclass 187 Visa Set Aside Due to Australian Citizen Child
MIGRATION – cancellation – Regional Sponsored Migration Scheme visa– Subclass 187 – applicant did not commence the employment in the position of Retail Buyer – ground for cancellation in s 137Q exists – one of the children is an Australian citizen – significant professional and social ties to the Australian community – best interests of the applicant’s children – decision under review set aside
Read the decision:Aryal Bhatta (Migration) [2023] AATA 3476 (29 August 2023)
- Sponsorship Sanctions Set Aside due to Business Director’s Actions Done in Good Faith
MIGRATION – action in relation to sponsorship – sponsorship bar – standard business sponsor – failure to satisfy sponsorship obligations and provision of false or misleading information – equivalent terms and conditions of employment – underpayment of one employee and non-payment of superannuation contributions to another – changeover from manual timekeeping and salary system to accounting software – director’s inexperience, mistyping and old data – documentary and clear oral evidence – failure to provide information about appointment of director – wife/previous director’s pregnancy, poor health and return to home country – necessity for director to run business – previously a shareholder with little direct involvement – no impact on any other person – COVID-related difficult trading conditions – actions done in good faith – bar period now passed – decision under review set aside
Read the decision here: ZYZ PTY LTD (Migration) [2023] AATA 3474 (10 October 2023)
- Visa Cancellation Upheld Due to Bogus Document – Agent’s Role and Applicant’s Responsibility.
MIGRATION – cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – bank statement was not genuinely issued to the applicant – Mr Singh had provided a bogus document in his visa application – applicant’s failure to review documents submitted to the Department in his name – decision to grant the visa was based partly on a bogus document – decision under review affirmed
Read the decision: Brar (Migration) [2023] AATA 3473 (26 August 2023)
LANDMARK DECISION ON MIGRATION
- SZOXP v Minister for Immigration and Border Protection [2015] FCAFC 69
Facts of the Case:
In 2012, the appellant, SZXOP applied for a Partner (Temporary) (Class UK) visa, sponsored by an Australian citizen, Ms. Yang.
The delegate refused the partner visa in November 2012, citing a lack of a de facto relationship between SZOXP and Ms. Yang as they had not lived together prior to the visa application.
This Department’s position was that the relationship between SZXOP and Ms. Yang did not meet the requirements of section 5CB of the Migration Act, specifically the requirement that de facto partners should not be “living separately and apart on a permanent basis”.
SZOXP sought a review of the delegate’s decision by the Migration Review Tribunal (MRT).
The MRT determined that SZOXP was in a de facto relationship with Ms. Yang. Specifically, The MRT held that there was no requirement in the Migration Act that the parties live together before a de facto relationship could be found to exist.
The Minister for Immigration & Border Protection filed an application for judicial review of the MRT’s decision.
The Federal Circuit Court set aside the MRT’s decision and remitted the matter.
SZXOP filed an appeal of the FCCA’s decision to the Federal Court.
Decision:
The court’s decision revolved around the interpretation of Section 5CB and whether prior cohabitation is a necessary condition to establish a de facto partnership for immigration purposes.
The court scrutinized the legislative history of the phrase “living separately and apart.” It traced its origins to ecclesiastical and matrimonial law, notably in the context of divorce during the 17th century and discussed legal developments in Australia.
Of importance, Australian Family Law was considered, specifically the idea a husband and wife who lived in the same house could nevertheless live “separately and apart”. This was given express statutory force in the Family Law Act 1975 (Cth) s 49(2):
“The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other”.
In short, the FCAFC held that for this idea must therefore cut both ways. That is, if parties could live separately and apart, in the same residence, the phrase must denote both a physical and a mental element.
The focus on the physical element was upon whether their physical behaviour involved “living lives separate and apart from one another”. That could occur in the same house. Conversely, it might have been possible for a husband and wife who maintained separate residences to fail to meet the physical element if, as a whole, their lives were lived as a single household.
This mental element, or intention, is the essential ingredient. If parties are physically apart before the application, this does not necessarily mean that parties are “living separately and apart on a permanent basis”. Meaning, this does not preclude an intention to physically live together in the future or maintain a single ‘household’ whilst being physically separate.
Thus, the court held that the construction of Section 5CB, does not require parties to have physically resided in the same premises prior to application. The court held that this is consistent with other provisions in the Migration Act including the definition of ‘spouse’ as well as the meaning of the phrase “living separately and apart” as intended in legislative history.
Considerations:
House v Household: It is important to consider that the court is NOT saying that is it NOT necessary for de facto partners to display a shared household. The court is merely saying that living physically apart from one-another does not immediately preclude the existence of a ‘household’.
In the legislative context, “living as a separate household” or “living separately and apart” implies that individuals may share the same residence but do not live as a single, integrated household. They may not share finances, domestic responsibilities, or maintain a mutually supportive and interdependent lifestyle.
Instead, they lead separate lives within the same physical space.
Thus, it is important to understand that whilst parties may not live, or have never lived, under the same roof, they still must be able to demonstrate that they maintain or intend to maintain a shared household, per s 5CB.
Read the decision: SZOXP v Minister for Immigration and Border Protection [2015] FCAFC 69
