Welcome to our inaugural newsletter on Australian migration!
The 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
- ‘They will never be granted the visa in their lifetime’: the families waiting decades to settle parents in Australia
Challenges faced by families trying to settle their parents in Australia through parent immigration visas. Processing times for these visas have extended to nearly 30 years, leaving families in uncertainty. Many applicants feel they were misled by processing timelines, leading to frustration and confusion. The refusal to increase the parent intake is influenced by economic considerations and concerns about adding older migrants to the population. Calls for reform to the parent visa system are increasing. Read the article here
- Australia’s visa rules for people with HIV don’t ‘meet community expectations’, says minister
Advocates are calling for the Australian government to lift health-related visa restrictions for migrants with HIV. Immigration Minister Andrew Giles acknowledged that the current migration health requirements do not meet community expectations. Fear of visa rejection is leading some migrants to avoid HIV testing, and late HIV diagnoses are more common among migrants. Advocates hope for policy changes to remove barriers and increase access to testing. Read the article here
- Migrants are keeping recession at bay
Migrants are playing a significant role in preventing a deep recession in Australia. Strong migration flows contribute to economic growth, as the population grows by 2 percent, which is a crucial factor in avoiding a severe downturn. Read the article here
- These are the new visa perks for Indonesians travelling to Australia
Indonesia will have easier business travel to Australia, with extended business visas increasing from three to five years, and Indonesians gaining access to smart gates at Australian airports. Additionally, Indonesians will be able to access a frequent traveller visa with a 10-year validity. The leaders also discussed education partnerships, climate initiatives, and the development of Indonesia’s new capital city, with Australian private sector companies invited to participate in its construction. The visit signifies strengthened ties between Australia and Indonesia, with further meetings planned for the East Asia Summit and ASEAN-Australia Summit later in the year. Read the article here
IMMIGRATION UPDATES
Procedural Instruction were updated on 28-Jul-2023. Some of the procedural instruction that have been updated include:
Migration Regulations – Divisions
- with ‘Assessment of spouse and married relationships’. Deleted/Replaced‘s5F – Spouse’ –
- ‘Reg 2.03A – Criteria applicable to de facto partners’ – Deleted/Replaced with ‘Assessment of de facto partner and de facto relationships’.
- ‘s5CB – De facto partner’ – Deleted/Replaced with ‘Assessment of de facto partner and de facto relationships’
- DIV 1.4B – Regulation 1.20KC and 1.20KD – Sponsorship Assessment for Partner visas
- Division 1.5 – Special provisions relating to family violence
- “(First) Entry date” requirement
- Paying for visa sponsorship
- Regulation 2.08E – Certain applicants taken to have applied for Partner (Migrant) and Partner (Provisional) visas
Migration Regulations – Schedules
- Subclass 100 (Partner) Visa
- Subclass 300 (Prospective Marriage) Visa
- Subclass 309 (Partner (Provisional)) visa
- Subclass 500 (Student) visa
- Subclass 771 (Transit) visa
- Subclass 801 (Partner) Visa
- Subclass 820 (Partner) visa
- Sch4/4005-4007 – The Health Requirement
- An Update from TRA
Applicants who received a successful Job Ready Program Registration and Eligibility (JRPRE) outcome between 1 July 2022 and 30 June 2023, and applied for a Temporary Graduate Visa (subclass 485) before 1 July 2023, do not need a Provisional Skills Assessment (PSA) outcome. For those who did not apply for the visa before the specified date, they may be eligible for a PSA outcome based on their previous JRPRE assessment, subject to meeting specific criteria and providing relevant evidence.Read more here.
- Canberra Matrix Invitation Round
The Canberra Matrix Invitation Round on 14 July 2023 involved inviting applicants with the highest ranking Matrix scores in each occupation to apply for ACT nomination. The number of invitations depended on the monthly allocation, submission date, occupation cap, and demand. The allocation for ACT nomination places for 2023-2024 is yet to be announced, and invitations for skilled nominated visas (subclass 190) and skilled work regional visas (subclass 491) remain to be determined. Read more here.
- VETASSESS Changes to Priority Processing
Starting from July 2023, VETASSESS will modify its Priority Processing service to give priority to applicants with evidence of urgent need when allocating places. Urgent reasons include expiring visas, approaching critical age milestones (33, 40, or 45 years old), or expiring English test results or Partner Skills Assessment. Applicants without urgent reasons can still apply for Priority Processing, but priority will be given to those with urgent needs. Priority processing is available for professional and general occupations but not for trade occupations. Read more here.
RECENT DECISIONS
- Applicant was ‘closely related’ to his nominated skilled occupation
MIGRATION – Application for a Skilled (Provisional) (Class VC) visa – whether the Administrative Appeals Tribunal correctly construed and applied cl 485.222 of Sch 2 of the Migration Regulations 1994 (Cth) – where the Tribunal fell into jurisdictional error in considering the applicant’s Australian study qualifications was ‘closely related’ to his nominated skilled occupation by determining the content of the nominated occupation without referring to the whole of the ANZSCO description of that occupation – applying Talha v Minister for Immigration and Border Protection [2015] FCAFC115 – jurisdictional error established – writ of certiorari issued – writ of mandamus issued.
Read the decision: Bhaskar v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 320
- Experience is not time-limited, as suggested by policy, to the most recent 5-year period
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – skill level and two years’ full-time employment completed in five years before application made – no evidence provided that diploma obtained from third country meets Australian requirement – three years’ relevant experience as alternative – tax and employment documentation provided to tribunal – work in Australia and fourth country – experience as alternative to qualification not limited to past five years – decision made without hearing necessary – decision under review remitted
Read the decision: Kim (Migration) [2023] AATA 2208 (7 July 2023)
- Wrong visa subclass? The tribunal has no power to consider alternative visa-streams
MIGRATION – Employer Nomination (Permanent) (Class EN) visas – Subclass 186 (Employer Nomination Scheme) – direct entry stream – café or restaurant manager – skill assessment – intention to apply for Subclass 187 and agent’s error in selecting from dropdown list – attempt to rectify after department’s invitation to comment received – department unable to change subclass – no power for tribunal to consider whether applicant satisfies criteria for Subclass 187 – members of family unit – decision under review affirmed
Read the decision: Chhikara (Migration) [2023]AATA 2152 (27 June 2023)
- Applicant assessed as in respect of the occupation of Customer Service Manager but, the nominated occupation is that of a Management Consultant
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – skills assessment – Management Consultant – Customer Service Manager – occupations that can be nominated – LIN 19/051 – Medium and Long-term Strategic Skills List – decision under review affirmed
Read the decision: Dunlop (Migration) [2023] AATA 2053 (26 April 2023)
- ‘Incorrect information’ – Unintentional and not fraudulent – disclosed elsewhere
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – false or misleading information given in visa application – second child in Australia not listed – application completed online by review applicant – ‘relatives, friends or contacts’ section requires only one such person – no clear specification to list each and every possible person – second child clearly disclosed elsewhere – decision under review remitted.
Read the decision: Hraichie (Migration) [2023] AATA 2215 (12 July 2023)
LANDMARK DECISION ON MIGRATION
- Thapa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 686
The case revolves around the interpretation of clause 189.222 of the Migration Regulations 1994 (Cth) (“the Regulations”) as to what constitutes “the time of invitation”.
Reade the Decision here.
Facts of the case:
- A subclass 189 visa application for the applicants, a husband and wife from Nepal, was refused.
- The husband (“The Primary Applicant”), held a master’s degree in professional accounting obtained in Australia.
- The Primary Applicant had first obtained a skills assessment issued by Chartered Accountants ANZ on 21 September 2015. He was deemed Skilled for the Nominated Occupation.
- The skills Assessment had no expiry date, however cl 189.222(d) of the Regulations finds that the Skills Assessment expired after three years, meaning that the Skills Assessment was considered to be expired on 21 September 2018.
- The Applicants were invited to apply for a subclass 189 Visa on the 11 December 2018. That invitation was valid for 60 days and expired on 9 February 2019.
- The Primary Applicant acquired a new Skills Assessment, on 10 January 2019. He was deemed Skilled for the Nominated Occupation.
- The subsequent subclass 189 visa application was refused by the Department, on the basis that the “at the time of invitation”, (11 December 2018) the Primary Applicant’s did not hold a valid skills Assessment.
- The Department decision was Affirmed by the AAT.
Decision:
On appeal in the Federal Circuit Court (“FCCA”), the court in its consideration of the facts and in its interpretation of the wording of clause 189.222 of the Regulations, found that the words “time of invitation” are used rather than “date of invitation”.
Therefore, in their view the “time of invitation” referred to the 60-day invitation period, which in this case was 11 December 2018 until 9 February 2019.
As the Primary Applicant held a valid Skills Assessment on 10 January 2019 (within the 60-day period) the FCCA found that he was not in breach of clause 189.222 and did in-fact hold a valid Skills Assessment at the “time of invitation”.
Thus, Jurisdictional error was made out, the AAT’s decision was quashed, and the matter remitted.
Considerations:
- It is important to consider that this case deals with a very specific set of circumstances and cannot be applied in every circumstance as a solution to every client’s eligibility issues.
- For instance, clause 189.223 which requires an applicant to have ‘Competent English’ at the ‘time of invitation’, reads similarly to clause 189.222 requiring an applicant to have a valid skills assessment at the ‘time of invitation’.
- However, Regulation 1.15CA which defines ‘Competent English’, provides that a person has Competent English only if they undertook (past-tense) an English language test, 3 years immediately before the date of the invitation.
- This means that if the English language test which determines an Applicant has Competent English was NOT undertaken before the invitation period, an Applicant can NOT subsequently undertake an English language test during the invitation period to meet the ‘time of invitation’ requirement per Thapa.
