Character test under section 501 can be used discretionary to refuse a visa application or to cancel a visa.

Discretionary visa refusal or cancellation

Character test under section 501 provides that a visa application may be refused if the applicant does not satisfy the decision maker that they pass the character test. Similarly, if the decision maker reasonably suspects that a visa holder does not pass the character test, and the visa holder does not satisfy the decision maker that they pass the character test.

The character test under section 501(6) requires the decision maker to determine whether or not the person passes the character test according to the prescribed circumstances. If a person does not pass 1 ground, then they do not pass the character test.

Unresolved or pending criminal matters

If a person already failed the character test then any other outstanding criminal matter would not generally prevent visa refusal or cancellation under section 501.

However, if a person who does not already fail the character test and is subject of unresolved or pending criminal charges in Australia, would not generally be considered under section 501 until the charges have been finalised.

If a person is in Australia, and they are facing criminal charges in another country which cannot be resolved without their presence in that country, the conduct that is the subject of the criminal charges may be considered under section 501(6)(c)(i) and/or (ii).

If the applicant does not pass the character test, their visa applicant will be refused under section 501(1).

If the visa holder does not pass the section 501 character test, their visa will be cancelled under section 501(2).

Mandatory visa cancellation

Section 501(3A) requires the decision maker to cancel a person’s visa because they have a substantial criminal record (section 501(6)(a)) because the person has been sentenced to death, imprisonment for life, or sentenced to 12 months or more imprisonment (section 501(7)(a), (b) or (c)); or involved in sexually based offences involving a child (section 501(6)(e)). The sentence must be a full-time custodial sentence.

Whether a person is liable for mandatory visa cancellation, “serving a sentence of imprisonment, on a full-time basis” does not include periodic detention or home or residential detention.

A person who has been servicing a full-time sentence and is allowed to participate in a work release scheme, or is allowed home visits is liable for mandatory cancellation.

The mandatory cancellation is only activated when a decision maker makes a finding that they are satisfied that section 501(3A)(a) and (b) are met. Once the decision maker is satisfied, they must cancel the person’s visa.

The intention of mandatory cancellation of those who are in prison is to make sure they do not pose a risk to the safety of the Australian community and they are to remain in either in prison or in immigration detention until that risk has been assessed.

Substantial criminal record

Section 501(6)(1) provides that a person does not pass the character test if they have a substantial criminal record as defined in section 501(7).

A person has a substantial criminal record if:

• sentenced to death; or
• sentenced to imprisonment for life; or
• sentenced to a term of imprisonment of 12 months or more; or
• sentenced to 2 or more terms of imprisonment totally 12 months (eg, sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently, the total of those terms is 6 months); or
• acquitted of an offence on the grounds of unsound mind or insanity; and has been detained in a facility or institution; or
• found by a court to not be fit to plead and has been detained in a facility or institution.

Immigration detention offences

If a person who has been convicted of an offence that was committed while in immigration detention; or while escaping from immigration detention or after escaping from immigration detention but before been taken into immigration detention again, they will not pass the character test (section 501(6)(aa) & (ab)).

A person does not pass the character test if convicted of an offence against section 197A.

Membership/Association

Under section 501(6)(b), if the Minister reasonably suspects you have been or is a member of a group or organisation, or you have or have had an association with a group, organisation or person which or who has been, or is, involved in criminal conduct, then you do not pass the character test.

Minister’s suspicion

The Minister’s suspicion does not have to be a certainty or a belief. However, the suspicion must be more than a speculation or idle wondering. The Minister’s suspicion must be reasonable, it should be:

(a). a suspicion that a reasonable person could hold in the particular circumstances; and

(b). based on an objective consideration of relevant material.

Belonging to a criminal group or organisation

If you belongs to a group or organisation, the Minister is required to have evidence to establish reasonable suspicion of your membership which depends on the circumstances of the case. The Minister is not required to assess whether you are sympathetic with, supportive of, or involved in the criminal conduct of the group or organisation. It is enough that the Minister has reasonable suspicion that:

(a). you have been, or is a member of a group or organisation; and

(b). the group or organisation has been, or is, involved in criminal conduct.

Associating or associated to a criminal group or organisation

Unlike belonging to a group or organisation, under the association limb of the character test, the Minister is only required to have a reasonable suspicion that you were sympathetic with, supportive of, or involved in the criminal conduct of the person, group or organisation to fail the character test. However, mere knowledge of the criminality of the associate is not, in itself, enough to establish association. The association must have some negative bearing upon your character.

You should note some information concerning association cannot be disclosed if the disclosure might put the life or safety of informants or other people at risk.

Involvement in certain criminal activities

Under section 501(6)(ba), you do not pass the character test if the Minister reasonably suspects that you have been, or is involved in, conduct constituting 1 or more of the following:

(a).      people smuggling (described in sections 233A to 234A);

(b).     trafficking in persons;

(c).      genocide, a crime against humanity, a war crime, a crime involving torture or slavery  or a crime of serious international concern.

You should note that you can fail this limb of the character test even if you have not been convicted of an offence constituted by the conduct.

Not of good character due to past and present criminal or general conduct

Under section 501(6)(c)(i) and (ii), you do not pass the character test if you are not of good conduct because of your past and present criminal and/or because of your past and present general conduct.

Conduct can be both general and criminal at the same time or it may either general or criminal conduct (Wong v Minister for Immigration and Multicultural Affairs [2002] FCAFC 440 at [33]).

The Minister can consider that you are not a person of good character when all the relevant circumstances of the particular case are taken into account to obtain a complete picture of your character.

What is of good character?

The words “of good character” mean enduring moral qualities reflected in soundness and reliability in moral judgement in the performance of day to day activities and in dealing with fellow citizens. It is not just a matter of repute, fame or standing in the community. The words “of good character” refer to the continuing performance according to moral principle. For example, a person of ill repute because of their past criminal conduct may, on objective examination at a later stage in life, be shown to be a person reformed and now of good character (Godley v MIMIA (2004) 83 ALD 411 at [34]).

You can fail this limb of the character test even if you do not have a recent criminal conviction, or have been involved in recent general conduct which could indicate that you are not of “good character”. However, your conduct in question must be sufficient to indicate a lack of enduring moral quality that outweights any consideration of more recent good behaviour. So, the nature of your criminal conduct must be examined and assessed as to its degree of moral culpability or turpitude. In addition, the Minister must examine your past and present criminal conduct to establish that at the time of decision, you are not of good character. If there is no recent criminal conduct that circumstances will point to the need for the Minister to give due weight to that fact before concluding that you are not of good character.

Furthermore, before past and present general conduct is taken to reveal indicia that you are not of good character, your continuing conduct must be shown a lack of enduring moral quality (Godley v MIMIA (2004) 83 ALD 411).

What is past and present criminal conduct

Whether you are not of good character because of your past or present criminal conduct, the Minister will take the following into consideration:

(a).      the nature and severity of your criminal conduct;

(b).     the frequency of your offending and whether there is any trend of increasing seriousness;

(c).      the cumulative effect of repeated offending;

(d).     any circumstances surrounding the criminal conduct which may explain the conduct, for example, the sentencing judge’s comments, parole reports and other authoritative documents; and

(e).      your conduct since your most recent offence, including:

          (i).      the length of time since last criminal offending;

          (ii).      any evidence of recidivism or continuing association with criminals;

          (iii).     any pattern of similar criminal conduct;

          (iv).     any pattern of continued or blatant disregard or contempt for the law;

          (v).      any conduct which may indicate character reform.

What is past and present general conduct

Past and present general conduct refers to situation where convictions may not have been recorded or when your conduct may not have constituted a criminal offence. However, the relevant circumstances of the particular case are to be taken into consideration, including evidence of rehabilitation and any relevant periods of good conduct.

The Minister may consider the following factors to determine whether you are not of good character:

(a).      whether you have been involved in activities indicating contempt or disregard for the law or for human rights. This includes (not unlimited to):

          (i). involving in terrorist activity, trafficking or possession of trafficable quantities of proscribed substances, political extremism, extortion, fraud; or

          (ii). having a history of serious breaches of immigration law, breach of visa conditions or visa overstay in Australia or in another country; or

          (iii). involved in war crimes or crimes against humanity.

(b).      whether you have been removed or deported from Australia or another country

(c).      whether you have been:

          (i). dishonourably discharged; or

          (ii). discharged prematurely

          from the armed forces as a result of disciplinary action or serious misconduct

In addition, if you are in Australia and charges have been brought against you in another country, and those charges will only be resolved if you return to that country, that conduct may be considered against your overall character.

Risk in regards to future conduct

Under section 501(6)(d), you do not pass the character test if there is a risk that you would engage in below conduct. However, there must be evidence suggesting that there is more than a minimal or remote chance that you, if you would engage in the below conduct. Section 501(6)(d) cannot be applied to the past conduct because there must be a risk that you would engage in the below conduct in the future.

Future conduct (section 501(6)(d))

1. Engage in criminal conduct in Australia – a criminal conviction could be recorded (section 501(6)(d)(i))
2. Risk of harassing, molesting, intimidating or stalking another person in Australia (section 501(6)(d)(ii)). Conduct and behaviour that may fall under this category include (but not limited to):

(a). conduct that could be construed as harassment or intimidation which does not necessary breach an AVO or DVO

(b). conduct that could potentially places children in danger, for example, unwelcome and/o inappropriate approaches through electronic media and other means

(c). conduct that would reasonably cause a person to be severely apprehensive, fearful, alarmed or distressed regarding your behaviour or alleged behaviour towards an individual, or in relation to their property.

• Risk of vilifying a segment of the community, of inciting discord or of representing a danger through involvement in disruptive and/or violent activities (section 501(6)(d)(iii), (iv) and (v)). Factors to be considered include (but not limited to) evidence that you:

(a). would hold or advocate extremist views such as a belief in the use of violence as a legitimate means of political expression

(b). would vilify a part of the community

(c). have a record of encouraging disregard for law and order (for eg, when addressing public rallies)

(d). have engaged or threatens to engage in conduct likely to be incompatible with the smooth operation of a multicultural society (for eg, advocating that particular ethnic groups should adopt certain political, social or religious values outside those generally acceptable, and if adopted or practised, might lead to discord within those groups or between those groups and other segment of the society

(e). participates in, or is active in promoting politically motivated violence or criminal violence and/or is likely to propagate or encourage such action in Australia

(f). likely to provoke civil unrest because of the conjunction of your intended activities and proposed timing of your presence in Australia with those of another person, group or organisation holding opposing views.

You should note that section 501(6)(d)(iii) to (v) is balanced with freedom of expression. The Minister cannot refuse or cancel your visa simply because you hold and are likely to express unpopular opinions unless those opinions may attract strong expressions of community disagreement and condemnation.

Sexually based offences involving a child

Under section 501(6)(e), you will not pass the character test if a court in any country has convicted you of 1 or more sexually bas offences involving a child or found you guilty of such an offence, or found a charge proven, even if you were discharged without conviction or regardless of the level of penalty or orders made in relation to the offence.

What are sexually based offences involving a child?

They include (but not limited to):

(a). child sexual abuse

(b). indecent dealings with a child

(c). possessing or distributing child pornography

(d). internet grooming

(e). other non-contact carriage service offences

Crimes under International Humanitarian Law

You will not pass the character test if you have in any country been charged with or indicted for 1 or more of the following offence (section 501(6)(f)):

• Crime of genocide
• Crime against humanity
• War crime
• Crime involving torture or slavery
• Crime that is otherwise of serious international concern

National security risk

If ASIO has assessed you to be directly or indirectly a risk to security (section 4 of the ASIO Act 1979, then you will not pass the character test (section 501(6)(g)).

Certain Interpol notices

Under section 501(6)(h), you will not pass the character test if an Interpol notice in relation to you is in force as this infer that you would present a risk to the Australian community or a segment of that community.

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (consultation fee applies) regarding the character test under section 501 or click here to learn more about Direction No 90.

041 222 4020 or WeChat: AUDvisa

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

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Long-term Australian residents deported – is this possible?

There is a clear distinction between lawful non-citizens (those who hold visas permitting them to enter and remain in Australia: s. 13 of the Migration Act) and unlawful non-citizens (those who do not hold visas – ss. 14 and 15)  and who are in consequence liable to detention and to removal from Australia: ss. 189, 196 and 198).

In Chetcuti v Commonwealth of Australia [2021] HCA 25, Chetcuti was born in August 1945 and arrived in Australia in July 1948 as a 3 year British subject. Between 1958 and 1959 he returned to his country of birth for about 8 months as a teenager. Chetcuti has remained in Australia for 73 years where he voted in local, State, and federal elections (s. 3 Commonwealth Electoral Act 1949). In addition, he registered for compulsory military service during the Vietnam war (National Service Act 1951) and eligible to sit as member of the House of Representative or in the Senate – Commonwealth Electoral Act 1918). Chetcuti was employed by the NSW Education Department where he worked as a teacher (Commonwealth Public Service Act 1922). Furthermore, he is eligible to be issued with an Australian passport (s. 4 of the Passport Act 1948 stopped issuing passports to British subjects in 1984).

In 1993, he was sentenced to 24 years for murder. In 2017, the Minister cancelled his Absorbed person visa (click here to learn more about APV) under s. 501 of the Migration Act (click here to learn more about Character test). After having served his sentence, Chetcuti was taken into detention where he remains.

His visa cancellation was set aside on judicial review by the Federal Court, the Minister then made another decision to cancel his visa. This cancellation was upheld on judicial review by the Federal Court in 2018 but was set aside on appeal to the Full Court of the Federal Court in 2019. The Minister immediately made another decision to cancel his visa again.

Chencuti argued that his detention was unlawful because he is not within the reach of the aliens power even though an alien (s. 51(xix) of the Constitution) is any person who was not born in Australia, whose parents were not Australians, and who has not been naturalised as an Australian (Nolan v MIEA (1988) 165 CLR 178 at 185).

Chencuti also argued that in Love v The Commonwealth (2020) 94 ALJR 198 there is a further exception in respect of a person who is an Aboriginal Australian according to the tripartite test in Mabo v Queensland [No 2] (1992) 175 CLR 1 at 70. This further exception is in respect of a person who was a natural born British subject and who commenced living permanently in Australia before 26 January 1949.

The HCA said that in Shaw v MIMA (2003) 218 CLR 28 (at 43, 87) it was confirmed that ‘the aliens power has reached all those persons who entered this country after the commencement of [the Australian Citizenship Act] on 26 January 1949 and who were born out of Australia of parents who were not Australian citizens and who had not been naturalised”. Such a person is treated as an alien to the Australian community.

Chencuti missed out on becoming an Australian citizen on 26 January 1949 because he arrived in Australia on 31 July 1948 (s. 25(1)(d) of the Australian Citizenship Act) as he had then been ordinarily resident in Australia for a period of less than 5 years. After he had resided in Australia for a period of 5 years he did not apply to Australian citizenship by registration (under s. 25(1) of the Australian Citizenship Act 1948) even though he can do so until this was removed from the Australian Citizen Act at the start of the Australian Citizen Act 1973 on 1 December 1973.

The HCA said that Chencuti falls within the scope of the constitutional meaning of ‘alien’ in s. 51(xix), therefore he is within the application of the Migration Act such that he can be detained or removed from Australia.

In Pochi v Macphee (1982) 151 CLR 101 at 111, the Court rejected the notion that an alien could become a non-alien by absorption into the Australian community, hence Chencuti’s 73 years residence in Australia and the strength of any of his general bonds to the community is irrelevant.

The HCA said in 2017, Chencuti’s circumstances were as follows:

• he was born outside Australia;
• he had no Australian parents;
• he was not an Australian citizen because he never registered or applied to be an Australian citizen;
• he had not been naturalised; and
• he was a citizen of a foreign country.

Chencuti is an alien within s. 51 (xix) and was therefore a person to whom the Migration Act could apply – a long-term Australian resident can be detained and deported.

Long-term Australian residents deported | Is this possible? The above HCA case confirmed that long-term Australian residents can be deported if they do not satisfy s. 501 Character test.

Australian migration law is complex and difficult to understand, contact our immigration lawyer to a consultation (fee applies) if your visa has been cancelled or help you to understand whether it is possible for long-term Australian residents to be deported.

041 222 4020 or WeChat: AUDvisa

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

The post Long-term Australian residents deported | Is this possible? appeared first on Ozzie Visa.

Absorbed person visa (APV) is, by operation of law, taken to have been granted to certain people on 01 September 1994.

Usually, non-Australian citizens entering the country is considered to be “immigrants” but certain persons who entered Australia did not remain immigrants because at some point in time, they were “absorbed” into the Australian community and ceased to be immigrants. These people who arrived before 02 February 1984 had become absorbed should not become unlawful if they remain continuously in the country. They remained as permanent residents even though they were not holders of any entry permits.

From 01 September 1994, section 34 of the Migration Act applies and grants them a permanent visa or Absorbed person visa (APV). An Absorbed person visa (APV) is an Act-based visa that does not have a class or subclass but has been allocated an administrative code ZY-934. The visa grant will always be recorded as 01 September 1994. This visa will cease as soon as the holder leave Australia or granted a substantive visa or the Absorbed person visa (APV) is cancelled (e.g., under s. 501 or  501A or s. 501B).

An Absorbed person visa (APV) allows the holder to remain permanently in Australia but if they were to depart, the Absorbed person visa (APV) will cease, hence will not be able to return to Australia.

Absorbed person visa (APV) is a stay only visa, and does not allow the holder any travel outside of Australia as the visa does not have any travel (re-entry) component.

In short, an Absorbed person visa (APV) is (i) granted by operation of law (section 34), (ii) there is no application required as they are taken to have been granted an Absorbed person visa (APV) on 01 September 1994 if they meet the requirements of s. 34, and (iii) the Absorbed person visa (APV) will automatically cease when the holder leave Australia or if they are subsequently granted another substantive visa (s. 82).

Absorbed person visa (APV) & NZ citizens

If you are an NZ citizen residing in Australia on 01 September 1994 and satisfied the criteria for the grant of an Absorbed person visa (APV), you may have been granted an Absorbed person visa (APV) on 01 September 1994.

If you have been granted an Absorbed person visa (APV), you will not be holding a Special Category Visa (click here to learn more about SCV) on 01 September 1994 (r. 17 of the Migration Reform (Transitional Provisions) Regulations 1994).

However, if on 01 September 1994 you have been granted an SCV and not a holder of an Absorbed person visa (APV); and you were residing in Australia before or on 01 September 1994 as an exempt non-citizen or holding a permanent entry permit), you may be eligible to apply for a Resident Return Visa (click here to learn more about RRV) as a “former permanent resident”.

Absorbed person visa (APV) & British arrivals

British citizens who arrived in Australia before the commencement of the Migration Act 1958 on 01 June 1959 may be taken to have been granted an Absorbed person visa (APV) on 01 September 1994.

Leaving Australia while holding an Absorbed person visa (APV)

Section 82(8) applies to an Absorbed person visa (APV) holder as they are allowed to remain in but not re-enter Australia. Their Absorbed person visa (APV) ceases to be in effect if they leave Australia. Depending on the person’s circumstances, they may be eligible to apply for an RRV (or a Former Resident visa – click here to learn more) on the grounds that they are a former permanent resident.

Can Absorbed person visa (APV) be cancelled?

In Falzon v MIBP [2018] HCA 2, Falzon, a national of Malta, lived in Australia for 61 years after arriving at age of 3. He held an Absorbed person visa and a BF Transitional (Permanent) visa. In 2008 he was convicted of trafficking a large commercial quantity of cannabis and was sentenced to 11 years’ imprisonment. In addition, Falzon had previous convictions for drug-related and other offences. While servicing his jail term, his Absorbed person visa (APV) was cancelled under s. 501(3A). As a result, his BF visa was also cancelled.

Section 501(3A) allows the Minister to cancel a visa if the holder is serving an imprisonment term, and does not pass the character test because he has substantial criminal record (s 501(6) – does not pass the character test if, (s 501(7) if sentenced to death or life or 12+ months of imprisonment) or committed sexually based offences involving a child (s. 501(6)(e)).

After Falzon’s Absorbed person visa (APV) was cancelled, he was invited to make representation about revoking the cancellation (r. 2.52). Section 501CA(4) allows the Minister to revoke the cancellation if satisfied that he passes the character test or there is another reason why the visa should be revoked. However, a decision not to exercise the power conferred by s. 501CA(4) cannot be reviewed by the AAT.

The Assistant Minister decided not to revoke the cancellation decision as Falzon does not pass the character test. The Assistant Minister then consider if there is another reason why Falzon’s cancellation should be revoked. It was accepted that Falzon has strong family ties to Australia and his removal would cause substantial emotional, psychological and practical hardship to his family (2 sisters, 4 brothers, 4 adult children and 10 grandchildren in Australia). It was also accepted that Falzon has not been to his country of birth for many years and he may suffer social isolation and emotional hardship. Nevertheless, the Assistant Minister concluded that Falzon represents an unacceptable risk of harm to the Australian community and protecting the community outweighs his  interests (family and others). The cancellation of Falzon’s Absorbed person visa (APV) was not revoked.

At the HCA, Falzon argued that s. 501(3A) further punishes him for the offences he has committed.

Section 501, of which s. 501(3A) forms part, provides for the refusal or cancellation of visas on character grounds.

Section 501(1) allows the Minister to refuse to grant a visa if the applicant does not pass the character test.

Section 501(2) allows the Minister to cancel a visa if the Minister suspects that the holder does not pass the character test and the holder does not satisfy the Minister that he passes the character test.

A person whose visa is cancelled will become an unlawful non-citizen and will be liable to immigration detention (s. 189) for certain duration (s. 196) and until he is deported or granted a visa. That person’s detention will continue (s. 196(4)) unless a court determines that the detention is unlawful or that person is not an unlawful non-citizen. Section 196(5) provides that s. 196(4) will applies whether or not there is a real likelihood of removal under s. 189 or s. 199 in the reasonably foreseeable future and whether or not the decision relation to the person’s visa is unlawful.

You should be aware that ss. 189 and 196 authorise and require the detention of a non-citizen for the purpose of his removal from Australia (Al-Kateb v Godwin (2004) 219 CLR 562; Re Woolley; Ex parte Applicant M276/2003 (2004) 225 CLR 1; Chu Kheng Lim v MILGEA (1992) 176 CLR 1).

The HCA does not accept Falzon’s argument that because he is absorbed into the Australian community, he cannot be deported as an alien (Pochi v Macphee (1982) 151 CLR 101 at 111, 112, 116). In Pochi, Gibbs CJ said at [111] that a person’s nationality does not change by the length of residence or an intention permanently to remain in a country of which he is not a national.

In Chu Kheng Lim v MILGEA (1992) 176 CLR 1, the joint judgement (at 29-30) said that whilst an alien enjoy the protection of Australian law, his status, rights and immunities under the law differ from those of an Australian citizen.

The HCA said, in term of whether Falzon’s immigration detention is punishment, unless a decision is made to revoke his visa cancellation, his cancellation is valid. The HCA further accepted that s. 501(3A) constitutes a legislative judgement that a class of persons identified by their offending and imprisonment are not to remain in Australia as the Migration Act regulate the coming into and presence in Australia of non-citizens (s. 4(1)).

Further, the deportation of aliens does not constitute punishment, same as the cancellation of a visa is a step necessary to achieve the removal of the holder from Australia (Falzon at [47]). The power to cancel a visa by reference to Falzon’s character due to his prior offending is not inherently judicial in character. In the EM, s. 501(3A) was calculated to ensure that “noncitizens who pose a risk to the community will remain in either criminal or immigration detention until they are removed or their immigration status is otherwise resolved” (Parliament Debates (Hansard) 24 September 2014 at 10328).

The HCA held that s. 501(3A) did not authorise or require Falzon’s detention (s. 189 provides for detention of unlawful non-citizens; s. 196 deals with the duration of immigration detention). Section 501(3A) only requires his visa be cancelled on account of his criminal history and his imprisonment. Once his Absorbed person visa (APV) is cancelled, his legal status changed to an unlawful non-citizen which caused him to be liable for removal from Australia and to detention to facilitate his removal.

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) to discuss your Absorbed person visa (APV) or click here to search for a visa suitable to your circumstances.

041 222 4020 or WeChat: AUDvisa

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

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Withdrawing doc prevent PIC4020 – when applying for a visa, you may be required to satisfy PIC 4020.

What is PIC 4020?

PIC 4020 (Sch 4) is also known as the integrity PIC (Public Interest Criteria). PIC 4020 is to prevent visa applicants from giving bogus documents or false or misleading information to support their visa application. Hence, PIC 4020 is an incentive to visa applicants not to give or cause to give a bogus doc or information that is false or misleading in a material particular (click here to learn more about PIC 4020).

Failure to satisfy PIC 4020 is grounds for your visa application to be refused but is not a ground for your visa to be cancelled.

If you are found not to have satisfied PIC4020, you can ask for it to be waived under PIC 4020(4).

Can withdrawing doc prevent PIC4020 ? To answer whether withdrawing document can prevent PIC4020 or whether withdrawing your visa application can prevent PIC4020 from being applied to your next visa application, we will turn to Tracey J in the case of Mudiyanselage v MIAC [2013] FCA 266.

Mudiyanselage first came to Australia on a student visa. After completing her studies, she applied for a Subclass 485 visa (click here to learn more about VC 485 visa) which was refused because she has provided a reference letter from a company stating that she worked there for more than 920 hours as a volunteer. The reference letter was signed by a person claiming to be the General Manager. This reference letter was used to obtain a positive skills assessment. She then obtained a second skills assessment by providing a reference letter from another company where she actually worked. She then provided the second positive skills assessment and ask for the first skills assessment to be withdrawn. The Department found that reference letter was a bogus doc because the person who claimed to be the General Manager was not a staff and Mudiyanselge has never worked there.

After her Subclass 485 visa application was refused, she applied to the AAT. At the Tribunal hearing, Mudiyanselage claimed that she has been led to believe by her manager that the reference letter was legit. The Tribunal found that she did not meet PIC 4020, even though she has withdrawn the first skills assessment, because she had provided a bogus doc (the skills assessment) to the Minister and that she had provided false and misleading information (the reference letter) to the skills assessor in order to secure a positive skills assessment.

The first or original skills assessment was a bogus doc because it s a doc that the Minister reasonably suspected was obtained because of the false or misleading statement that Mudiyanselage had undertaken the 920hours of voluntary employment. The Tribunal also found that, even if Mudiyanselage was a victim of fraud of her manager and had subsequently obtained a second positive skills which was also before the Department, her circumstances was not compelling for the Member to waive PIC 4020(1) under PIC 4020(4).

Mudiyanselage then appealed to the Federal Magistrates Court where she argued that the first skills assessment had been withdrawn and the second positive skills should not be affected by the first skills assessment. She also argued that the second skills assessment was also provided to the Department and was before the Tribunal. The Federal Magistrate held that the first skills assessment, which was withdrawn, was before the Tribunal and the Tribunal was entitled to conclude that the first skills assessment was a bogus doc which was submitted to support her visa application. The Court also held that it mattered not that the first skills assessment had subsequently been withdrawn and had not been acted on, hence the Tribunal was entitled to conclude that Mudiyanselage had given or caused to be given a bogus doc to the Minister in relation to her visa application. The Court further held that her second skills assessment was not a matter that the Tribunal was required to consider when determining whether Mudiyanselage satisfied PIC 4020(1), it was irrelevant to determine this issue.

After her Federal Magistrate Court appeal was dismissed, she appealed to the Federal Court.

The Federal Court said (at [35]) that PIC 4020 is to “frustrate applicants who submit bogus documents when making a visa application in the hope that they will not be detected but that, if their deceit is exposed, they are able to eschew reliance on the document without prejudice to the success of their application”.

The Federal Court rejected Mudiyanselage’s argument at the Federal Magistrate Court (this argument was not pressed at the Federal Court) that she was free to withdraw her first skills assessment and not to rely on it because once she had withdrawn, the first skills assessment could no longer be regarded as material to her visa application.

The decision in Mudiyanselage confirmed that withdrawing document to prevent PIC 4020 may not help you. Similarly, it also appears that you may not be able to prevent PIC 4020 from being applied to your future visa application (3 years ban applies to those who failed to satisfy PIC 4020).

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation on whether withdrawing doc prevent PIC4020 or whether withdrawing your visa application can prevent PIC 4020 or how to ask for PIC 4020 to be waived.

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This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

The post Withdrawing doc prevent PIC4020 | Will it? appeared first on Ozzie Visa.

PR cancellation & citizenship cancellation – can the Department cancel or revoke a child born in Australia to a PR (permanent resident) parent the child’s Australian citizenship if the parent’s PR is cancelled?

In the case of Shaheen (Migration) [2020] AATA 2568, the child’s mother, Shaheen, first came to Australia on a student visa. She later applied and was granted a Subclass 475 visa but never worked for her sponsor. She and her family later applied for and were granted a permanent visa, Subclass 187, in 2016. In 2017, their son was born in Australia and by virtue of s. 12(1)(a) of the Australian Citizenship Act 2007 was an Australian citizen because his parents were permanent residents at the time of his birth.

In late 2016 the Department received information (a dob-in) alleging that Shaheen’s sponsorship for the Subclass 475 and Subclass 187 were not genuine as she was involved in a paying for visa sponsorship scheme. Both sponsors when contacted by the Department confirmed that they have never sponsored Shaheen for any visa. Shaheen later admitted that she has never worked for either sponsor. In 2018 the Department cancelled her permanent visa under s. 116(1AB) for giving of incorrect information. Shaheen then applied to the AAT to review the cancellation.

At the Tribunal hearing, Shaheen claimed that both jobs were secured through a paid recruitment consultant. She admitted that she never commenced working for her Subclass 457 sponsor because she claimed they told her that there was no job for her after her visa was granted.

Shaheen told the Tribunal that the same recruitment consultant helped her find a sponsor for her Subclass 187 visa. She also confirmed that she did not work for this sponsor after her permanent visa was granted because they asked her to pay $30,000 or they will give her trouble.

As s. 116 cancellation is a discretionary cancellation, the Tribunal advised that if it decided that the ground of cancellation exists it must proceed to consider whether her permanent visa should be cancelled. And there are no matters specified in the Migration Act or the Migration Regulations that must be considered in exercising the s. 116 discretion. In short, they can put to the Tribunal anything they like the Member to consider in not cancelling their permanent visa.

She claimed that s. 116(1AB) does not apply to her because the incorrect information (fake docs) were provided by the recruitment consultant without her knowledge, therefore she did not provide any incorrect information in support of her sponsor’s nomination application. However, the Tribunal said that s. 116(1AB) applies to any incorrect information given which informs that grant of the visa and can relate to incorrect information provided in a linked and related nomination application. In Shaheen’s case, it was information given as part of the related Subclass 187 nomination, the approval of which informed the grant of the visa to her. The Tribunal finds the incorrect information was given by her recruitment consultant on her behalf to the Department. The incorrect information have been taken into account when granting her the Subclass 187 visa.

The Tribunal then consider whether her PR cancellation would cause her son’s Australian citizenship cancellation. Shaheen argued that her son is an Australian citizen, therefore he has a right to be able to live in Australia and enjoy all the benefits available to all Australian citizens. She also claimed that her other children who were not born in Australia but have lived most of their lives here should also enjoy the same benefits as it would be in their best interests (in accordance with CRC).

Can the Dept cancel a child’s citizenship if parent’s PR is cancelled?

The Tribunal consider whether her son’s citizenship could be cancelled or revoked under s. 34 of the Citizenship Act 2007 if there are circumstances involving offences or fraud. However, the Tribunal concluded that s. 34 does not apply to the son because he automatically acquired Australian citizenship at birth under s. 12 as Shaheen (and her husband) was a permanent resident.

If the Tribunal affirmed the Department’s decision to cancel their permanent visa, their subclass 187 visas will cease to be in effect from the date of cancellation onwards (s. 82(1) of the Migration Act). The cancellation does not have retrospective effect, causing the visa to have legally never been in effect. Hence, Shaheen and her husband were in fact permanent resident as at the time of their son’s birth for the purposes of s. 12(1)(a) of the Citizenship Act.

Shaheen’s son is extremely fortunate that he retains his citizenship even though at the time of his birth his parents permanent residency was only in effect because of incorrect information and migration fraud.

To learn whether long-term permanent residents can be deported, please click here.

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) to understand the consequences of your PR cancellation & citizenship cancellation or click here to learn about other s. 116 visa cancellation or click here on how to prevent visa cancellation.

041 222 4020 or WeChat: AUDvisa

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

The post PR cancellation & citizenship cancellation appeared first on Ozzie Visa.

Appealing AAT decision to the FCC – if the AAT has affirmed the Department’s decision to refuse you a visa, you can appeal the Tribunal’s decision to the FCC or Federal Circuit Court.

Appealing AAT decision to the FCC requires you to identify the error(s) made by the Tribunal. While the AAT conducts a merits review of the Department’s refusal, the FCC is unable to conduct a merits review of the AAT’s decision. In addition, the AAT usually conduct a de novo hearing or hear your case from the beginning or afresh. However, the FCC will conduct a judicial review of the error(s) of law committed by the AAT in reviewing your application.

Therefore, appealing AAT decision to the FCC requires you to identity the type of error(s) and to particularise the error(s).

Some of the errors committed by the AAT include:

• Failure to consider your claim or integer of a claim
• Asking the wrong question
• Making an unreasonable decision
• Failure to make obvious enquiry

To explain the above errors, we will use the case of Giakou v Department of Home Affairs & Anor [2020] FCCA 2575.

Giakou applied for a Student visa (click here to learn more about Student Subclass 500 visa) which was refused by the Department. He then applied to the AAT for a merits review of the Department’s decision to grant him the visa.

At the AAT hearing, the Tribunal informed Giakou that according to the PRISMS information his enrolment was cancelled. Giakou’s school provided the AAT an undated letter confirming he has paid his tuition fee and is attending classes. The AAT has also written to Giakou’s school but did not received any response.

Giakou has informed the AAT his school has cancelled his enrolment because his student visa application was refused but he has paid all his tuition fee and attending classes.

The AAT subsequently affirmed the Department’s decision not to grant Giakou a Student visa because PRISMS stated that his enrolment was cancelled and concluded that he did not study.

Asking the wrong question

Giakou’s option is, appealing AAT decision to the FCC. He argued that the AAT asked itself the wrong question because the Tribunal was required to ask itself whether he was enrolled or subject to a current offer of enrolment. He argued that Migration Act or the Migration Regulations does not provide that PRISMS was to be treated as a conclusive record of enrolment (Wei v MIBP (2015) 148 ALD 226 at [51]).

The AAT has contacted Gaikou’s school and they confirmed that his enrolment was cancelled but could be reinstated if his visa is granted.

The Court accepted that the AAT did not ask itself what was capable of constituting ‘a current offer of enrolment’ as this question related to a previous and not a current state of affairs. The Tribunal took the view that the PRISMS entry, being silent on the question of a current offer of enrolment and recording that Gaikou’s previous enrolment had been cancelled, was dispositive of that question. The Court said that this amounts to a misconstruction of the term ‘the subject of a current offer of enrolment’. The Tribunal falls into jurisdictional error because it asks itself the wrong question or failing to ask the correct question.

Legally unreasonable decision

In appealing AAT decision to FCC, the Tribunal’s decision is unreasonable if the decision lacks an evident and intelligible justification (Minister for Immigration & Citizenship v Li (2013) 249 CLR 332).

The Court accepted that Giakou had been enrolled in a course and the AAT had established that the only thing standing between him and re-enrolment was the grant of the visa. Once the visa was granted, Giakou’s enrolment could occur and the qualification could be conferred to him. The Court said that this should constitute ‘subject to a current offer of enrolment’, hence the Tribunal’s decision was legally unreasonable.

Failure to make inquiry

Normally the AAT has no general obligation to make inquiries. It is for an applicant to make out their own case (Ashraf v MIBP [2018] FCAFC 50). However, in some circumstances a failure to make an inquiry might result in a failure to have conducted a review. This is because the duty imposed upon the AAT by the Migration Act is a duty to review. It ma be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction (Minister for Immigration & Citizenship v SZIAI & Anor (2009) 259 ALR 429 at [25]).

The Court said that the Tribunal could, by picking up the telephone and requesting the University to check whether Giakou’s enrolment status as shown in PRISMS was in fact correct. Had an inquiry been made with respect to the school’s letter and had it confirmed that Giakou was still participating in the course and that his lecturer regarded him as a student at the school, this had obvious relevance to the question of enrolment event though his enrolment had been cancelled. The inquiry would confirm if Giakou is studying there or not. Schools usually allow students whose visa application had been refused to continue studying because if they received a favourable result on a merits review their enrolment would be reinstated. Click here to learn more about duty to inquire.

Click here to learn more about appealing visa refusal and cancellation.

Self-represented

If you are not legally represented, the Court has to remain astute and alert to any possible error in the AAT’s decision: MZAIB V MIBP [2015] FCA 1392. What this mean is that the Minister will usually assist the Court with identifying any errors not identified and not raised by self-represented litigant.

For e.g. in Samah v Minister for Immigration & Anor [2020] FCCA 2868, the Minister advised the Court that the Tribunal adopted the Department’s decision without the required level of analysis and, in so doing, failed in its (Tribunal’s) statutory duty to review the Department’s decision. The Court agreed that the Tribunal’s conclusion is based on its assessment that the Department’s reason. The Court said (at [73]) that the Tribunal’s findings do not amount to an active consideration of the issue at hand – an active consideration that is required before it can be concluded that the visa should be cancelled. In short, the Tribunal failed to exercise its jurisdiction. It did not comply with its statutory duty to review the Department’s decision.

Futility

Sometimes the Court may not remit the matter back to the Tribunal even if the Court finds the Tribunal had committed an error of law. For e.g. if your Subclass 482 visa required you to work for the employer who sponsored you but your sponsor’s business ceased and you are unable to find another employer to sponsor you. As you no longer work for your sponsor, you are in breach of Condition 8107 and you are unable to find another sponsor. The Court may, in this situation, will find it futile to send your case back to the Tribunal.

In another example, the Court may not remit your case back to the Tribunal because your visa has already expired even though under sections 37A, 133 and 134D of the Migration Act, the Minister can extend the period in which a visa is in effect.

In Patel v Minister for Immigration & Anor [2014] FCCA 2000 and Makwasa v Minister for Home Affairs & Anor [2018] FCCA 1179, the Court found where the student visas under review had expired, it would be an exercise in futility to grant relief as any relief would have no practical consequence.

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) regarding appealing AAT decision to FCC or click here to find visas to suit your circumstances.

041 222 4020 or WeChat: AUDvisa

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

The post Appealing AAT decision to FCC | How? appeared first on Ozzie Visa.

Sponsoring child & dependent relative – what are the requirement for being a  ‘dependent’?

If you are an Australian citizen or PR or an eligible NZ citizen or holds a Subclass 309 visa (click here to learn more) or a Subclass 820 visa (click here to learn more) you may be able to sponsor:

1. A dependent child for a Subclass 101 visa (click here to learn more); or
2.  
3. an aged dependent relative for a Subclass 114 visa (click here to learn more); or
4. a dependent child (if you hold a Subclass 309 or Subclass 820 visa) for a Subclass 445 (click here to learn more); or
5. a dependent child for a Subclass 802 visa (click here to learn more) or click here on tips on how to obtain Subclass 802 visa; or
6. an aged dependent relative for a Subclass 838 visa (click here to learn more).

When sponsoring child & dependent relative, you and/or the visa applicant have to prove they are your dependent. “Dependent” is defined (reg. 1.05A) as:

• a person (the first person or the visa applicant) is dependent on another person if:
• the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person (e.g. the sponsor) for financial support to meet the first person’s basic needs for food, clothing and shelter; and
• the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or
• the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

Meaning of dependent when sponsoring child & dependent relative

In Nguyen & Anor v Minister for Immigration & Anor [2020] FCCA 2705, Nguyen sponsored her adopted daughter for a Subclass 101 visa which was refused because the daughter was living with her grandmother and aunt. Nguyen claimed that she has been sending her daughter money. However, her daughter did not pay any rent or contribute toward the household expenses and sometimes eat with her grandmother and aunt.

Nguyen applied to the AAT and the Tribunal said that it has to be satisfied that her daughter is dependent on her and dependence means financial dependence for food, shelter and clothing. And the daughter’s dependence on Nguyen must be greater than her dependence on anyone else. Nguyen said that her daughter uses the money she sent for her tuition, her going out and sometimes for foods and other expenses, but the daughter doesn’t give any money to her grandmother and her aunt.

The Tribunal said that Nguyen’s daughter lives in a house that is owned by the grandmother and aunt, and even if Nguyen or her daughter contribute to household expenses, the daughter is dependence on the grandmother and aunt more than her dependence on Nguyen in term of shelter.

As the daughter sometimes eat with her grandmother and aunt, the Tribunal is not sure if the daughter’s dependence on Nguyen for food is greater than her dependence on the grandmother.

The Tribunal accepted the daughter is Nguyen’s child and was dependent on her at the time of application because she was less than 18. At the time of the AAT’s hearing, she had turned 18, hence the Tribunal was required to consider whether she is dependent on Nguyen.

The Tribunal further accepted that Nguyen transferred money to her daughter; her daughter lives with the grandmother and the aunty; she does not pay for accommodation; she does not contribute toward the household expenses.

Sponsoring child & dependent relative – must be dependent on food, clothing and shelter

The Tribunal affirmed the Department’s decision to refuse Nguyen’s daughter a Child visa as she relies on her grandmother and aunt in Vietnam for shelter and at least partly for food. Nguyen’s evidence does not establish that her daughter is reliant on her for food, shelter and clothing is greater than her reliance on other sources. The Tribunal said that the definition of “dependence” requires dependence on all 3 elements and, for that reason, even if the daughter depended on Nguyen for clothing, but not for food or shelter, the definition of ‘dependence’ would not be met.

Sponsoring child & dependent relative – reliance must be greater on the Sponsor

Nguyen appealed to the FCCA and Manousaridis J said at [27] and [34] that “any other …. source of support” include support provided by the grandmother and aunt collectively in providing financial support for food, clothing and shelter to Nguyen’s daughter. The decision-maker does not need to calculate the proportion of support provided by the grandmother and the portion provided by the aunt when determining whether the daughter’s reliance for financial support on Nguyen was greater than her reliance on the support provided by the grandmother and the aunty.

Sponsoring child & dependent relative – reliance must be in term of financial support

Manousaridis J said at [42] that the daughter’s basis needs for food, clothing and shelter can only be obtained through transactions in which money is exchanged for the food, clothing and shelter.

Living with a relative and not paying for accommodation (shelter) and meals (food) would be counted as financial support from them. Manousaridis J said at [42] that the daughter does not need to pay for her accommodation and meals at her grandmother and aunt’s place is financial support. There is a cost to acquiring shelter; and if a person provides that shelter without expecting any payment, that constitutes financial support for the meeting of the basic need for shelter because the daughter would be relieved of the need to pay for shelter (at [43]).

Nguyen’s application to the FCC was dismissed as the Tribunal did not make any jurisdictional error in arriving that her daughter was not wholly or substantially reliant on her for financial support to meet her basic needs for food, clothing and shelter. The daughter’s reliance on Nguyen was not greater than her reliance on the grandmother and aunt for shelter and food.

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) to help you understand sponsoring child & dependent relative for a visa or click here to find Australian visas and visa application fees.

041 222 4020 or WeChat: AUDvisa

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

The post Sponsoring child & dependent relative | What is ‘dependent’ appeared first on Ozzie Visa.

When should I apply for 485 Temporary Graduate visa? The date you lodge an application for a temporary graduate subclass 485 visa (click here to learn more about subclass 485 visa) is very important because if you lodge the application too early or too late will mean your application will be refused.

Before you apply for the temporary graduate subclass 485 visa, you must satisfy the Australian study requirement in the period of 6 months immediately before the day the application was made (cl. 485.221 – for graduate work stream) or your qualification(s) satisfied the Australian study requirement in the period of 6 months ending immediately before the day the application was made (cl. 485.231 – for post-study work stream).

So, when should I apply for 485 Temporary Graduate visa? To understand why you should not apply for a temporary graduate subclass 485 visa even 1 day too early or 1 day too late, we will refer to the case of Mahohoma v Minister for Immigration [2020] FCCA 2206.

The Court in Mahohoma answered the question when should I apply for temporary graduate subclass 485 visa?.

Mahohoma applied for a temporary graduate subclass 485 visa on 4 August 2017 and provided a letter from her University which indicated that she had completed the requirements of her course on 10 August 2017. The Department refused her temporary graduate subclass 485 visa as her study completion date was 10 August 2017.

Mahohoma then applied to the AAT, the Tribunal requested her University to confirm her completion date and was advised that she had completed her course requirements on 10 August 2017.

The Tribunal said that “completed” refers to when she achieve the necessary results or credits to enable her to be awarded her degree (Bachelor of Arts) and there was nothing more for her to do of an academic nature (citing Venkatesan v MIAC [2008] FMCA 409). In addition, the relevant date for determining when she has completed the academic requirements is the date when her academic requirements have been met, that is, the date on which the results are finalised by her University. The date when the University informs her of the result is not the relevant date, nor is the date of conferral of the award (Sapkota v MIAC [2012] FCA 981).

Mahohoma provided a letter dated 4 August 2017 from her Unit Coordinator advising her that “your paper is not of very high quality, but it was adequate to be awarded the supplementary grade. I have updated your final grade for SOC209 to 50 P, and if the Associate Dean of Teaching and Learning approves it, results will probably update it shortly…”

The Tribunal concluded that the day the temporary graduate subclass 485 visa application was made and period of time for completing the Australia study requirement would not include the day the application was made. The Tribunal said that, as she has completed her Australia study requirement on 4 August 2017, she could only make a valid application after 4 August 2017 and not on the same day she satisfied the Australia study requirement.

Which day is “before”?

To know when should I apply for temporary graduate subclass 485 visa, you will need to know when the 6 month period end the day before an application is made (if applying under the graduate work steam) or immediately before the day on which the application was made (if applying under the post study work stream).

The Tribunal affirmed the Department’s decision to refuse Mahohoma the temporary graduate subclass 485 visa because she has lodged her application on the same day she completed her Australia study requirement.

Mahohoma appealed the Tribunal’s decision to the FCC for the Court to determine whether the ‘period of 6 months ending immediately before the day the application was made” should be taken to include the day of the application.

Judge Kendall at [38] accepted that, under section 36(1) of the Interpretation Act supports the interpretation that, the period of 6 months ending immediately before the day the application was made does not include the day of the application.

The Court concluded at [51] that Mahohoma was required to have completed her course in the 6 months immediately before the day on which she applied for the temporary graduate subclass 485 visa. She has applied for the visa on the day on which she believed she completed course.

In conclusion, when should I apply for temporary graduate subclass 485 visa? The answer is, the earliest you may apply for the visa is 1 day after your have satisfied the Australia study requirement or 1 day after you have completed all your course requirement and there is nothing more for you to do of an academic nature.

Incidentally, beside knowing “when should I apply”, you must (as the primary applicant meet the below common criteria for both streams):

• not previously held a Subclass 476 visa (click here to learn more)
• not previously held a Subclass 485 visa
• meet the English language requirement
• applied for an AFP check
• have adequate health insurance

If you are applying under the graduate work stream (18 months Subclass 485 visa), you must:

• completed a degree or diploma or trade qualification which is closely related to your nominated skilled occupation
• have applied for a skills assessment for your nominated occupation, your skills must be from the qualification obtained in Australia while you held a student visa and as a result of studying a registered course

If you are applying under the post-study work stream (2 to 4 years Subclass 485 visa), you must:

• hold a Bachelor degree (2 years); or
• Masters degree (2 years if by course work; 3 years if by research); or
• Doctoral degree (4 years).

If you completed 2 different courses to satisfy the 2 years study requirements, the courses must be closely related to your nominated occupation (click here to learn more about what is closely related).

Temporary Covid-19 Pandemic waiver for offshore application

If you are outside of Australia and you hold a Student visa, you can apply for the Subclass 485 visa via ImmiAccount.

If you are currently holding a Subclass 485 visa, you may be eligible to apply for a 2nd 485 visa – click here to find out if you are eligible.

Australian migration law is complex and difficult to understand, contact our immigration lawyer (fee applies) to help you answer the question when should I apply for temporary graduate subclass 485 visa.

041 222 4020 or WeChat: AUDvisa

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

The post When should I apply for 485 visa? Tips on Subclass 485 visa appeared first on Ozzie Visa.

Removal and deportation from Australia of non-citizens who do not have a valid visa to enter or remain in Australia has serious consequences. If your visa has been cancelled or your visa has expired will cause you to become an unlawful non-citizen.

Australian Migration law requires the detention of all non-citizens who are in Australia without a visa. If you are in Australia without a valid visa, you are known as an unlawful non-citizen. The Migration law requires all non-citizens who arrive in Australia without a visa (they are known as “unauthorised arrivals”), or those who arrive with a visa and their visa subsequently expired or cancelled to be detained. Children will also be detained if their visa have been cancelled or expired. This is known as mandatory detention which was introduced in 1992 to stop Indochinese unauthorised boat arrivals. Initially the maximum period of detention was 273 days or 9 months pending removal and deportation from Australia but was removed to allow for indefinite detention.

Unlawful non-citizens may be detained in 1 of the following Immigration Detention Centres or IDCs:

• Victoria – Maribyrnong
• NSW – Villawood
• WA – near the airport, Curtin and Yongah Hill (Northam)
• Christmas Island
• NT – Berrimah and Wickham Point
• QLD – Scherger
• Tasmania – Pontville

Unlawful non-citizens (whose visa has been cancelled or visa has expired) who are considered as low security risk may be detained in Immigration Transit Accommodation or ITAs which are available in Brisbane, Melbourne (Broadmeadows) and in Adelaide (Kilburn) pending removal and deportation from Australia.

According to the Department (on 31 May 2020) the average period of time for unlawful non-citizens held in immigration detention facilities pending removal and deportation from Australia was 553 days.

Can immigration detention be unlawful?

In the case of AJL20 v Commonwealth of Australia [2020] FCA 1305, AJL20 is a citizen of Syria who came to Australia on a Child Subclass 101 visa (click here for more information on Child visa) in May 2005. In October 2014 his visa was cancelled  on character grounds under s 501(2) (click here to learn more about character test). After his visa was cancelled, AJL20 became an unlawful non-citizen and was detained under s 189(1) pending removal and deportation from Australia.

The Minister accepted that Australia has protection obligations not to return him back to Syria but refused to grant AJL20 a protection visa under s 195A. Under s 198(6) the Department was obliged to remove AJL20 from Australia as soon as reasonably practicable.

Immigration detention is for removal and deportation from Australia

Immigration detention is only lawful if the detention is for the purpose of removing the unlawful non-citizen as soon as reasonably practicable from Australia (s 196 must be read together with s 198).

Section 189(1), if an officer knows or reasonably suspects that a person in Australia is an unlawful non-citizen, the officer must detain the person.

Section 196(1), an unlawful non-citizen detained under s 189 must be kept in immigration detention until:

• he or she is removed from Australia under s 198 or 199; or
• an officer begins to deal with the non-citizen under subsection 198AD(3); or
• he or she is deported under s 200; or
• he or she is granted a visa.

Section 198(1) requires an officer must remove as soon as reasonably practicably an unlawful non-citizen who asks the Minister, in writing, to be so removed.

Section 198(6) requires an officer must remove as soon as reasonably practicable an unlawful non-citizen if:

• the non-citizen is a detainee; and
• the non-citizen made a valid application for a substantive visa that can be granted while in Australia; and
• one of the following applies
• the grant of the visa has been refused and the application has been finally determined; and
• the visa cannot be granted; and
• the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in Australia.

AJL20 appealed to the FCA claiming that:

1. immigration detention of an unlawful non-citizen is lawful only if it for a permissible purpose.
2. section 198 requires unlawful non-citizen to be removed from Australia as soon as reasonably practicable.
3. if he was not removed from Australia, his detention is unlawful because his detention is no longer for a permissible purpose.
4. since July 2019 the Department did not pursued or carried out his removal as soon as reasonably practicable, his detention since that time has not been for the purpose of his removal from Australia and is unlawful.
5. because his detention was unlawful, he was falsely imprisoned and is entitled to damages and the Department must release him from detention (habeas corpus).

The Minister accepted that since July 2019 the purpose of AJL20’s detention has been his removal and deportation from Australia, and under s 198 AJL20 was to be removed from Australia as soon as reasonably practicable. However, the Minister argued that s 196(1) permit AJL20 to be detained lawfully “until” he is in fact removed from Australia irrespective of whether or not that removal is carried out as soon as reasonably practicable. The Minister further argued that if AJL20 was not removed as soon as reasonably practicable, the only remedy (an order of mandamus) available to AJL20 was to force the Minister to order his removal and deportation from Australia as soon as reasonably practicable.

In Plaintiff S4/2014 v MIBP (2014) 253 CLR 219, the Court said that the Minister could only lawfully detain unlawful non-citizens for the following purposes:

1. removing unlawful non-citizen from Australia;
2. receiving, investigating and determining an application for a visa to enter and remain in Australia;
3. determining whether to permit the applicant to make a valid application for a visa; or
4. possibly, determining whether to grant a visa without an application by the applicant.

The Court said that there were 2 periods of AJL20’s detention; 1^st was from 26 July 2019 to 27 November 2019 where the Minister accepted that no active steps were taken to remove AJL20 from Australia, and 2^nd was from 28 November 2019 to the date of judgement during which the Minister pursued the possibility of returning AJL20 to Lebanon (but not Syria).

The Court said that since 26 July 2019, AJL20 was not removed from Australia as soon as reasonably practicable because no steps at all have been taken to remove him to Syria, the country of his nationality. That failure was due to a recognition of Australia’s obligations not to refoul him to Syria. However, s 197C required that Australia’s non-refoulement obligations in respect of AJL20 be treated as irrelevant for the purpose of his removal and deportation from Australia as soon as reasonably practicable in accordance with s 198. Bromberg J concluded that AJL20 has, since 26 July 2019, been unlawfully detained and ordered him to be released immediately.

The Court said that s 196 does not authorise the ongoing detention of AJL20 when the removal and deportation from Australia purpose of his detention is no longer being carried out as soon as reasonably practicable. AJL20’s detention had to be brought to an end by his removal and deportation from Australia as soon as reasonably practicable otherwise his detention would be unlawful.

The Court also said that a “residence determination” made by the Minister under s 197AB which involves a non-citizen residing outside of a detention centre is another available temporary disposition. The Migration Act recognises that the powers to detain an unlawful non-citizen may not be lawfully exercised and that unlawful detention will be the subject of court orders (e.g. habeas corpus is available to every individual detained in Australia without legal justification) including unlawful non-citizen be released from detention (s 196(4)-(5)). Under s 195A the Minister may, if it is in the public interest, to grant a visa to a person in detention.

In summary, if you are detained because your visa has been cancelled or your visa has expired, your detention would only have been lawful while steps were being taken to arrange for your removal and deportation as soon as reasonably practicable from Australia to your home country (Plaintiff M76/2013 v MIBP (2013) 251 CLR 322). Your detention must be fixed by reference to what is both necessary and incidental to the execution of s 198 power to detain and the fulfilment of its purpose. It is incorrect to read s 196(1) as allowing your detention “until” the fact or the event of your removal from Australia. Section 196(1) provides that an unlawful non-citizen must be kept in immigration detention until the happening of 1 of the 4 events listed in s 196(1). Immigration detention is only lawful for the removal (a permissible purpose) from Australia of an unlawful non-citizen. Where there is a departure from the permissible purpose for the detention, the detention will no longer be lawful irrespective of whether 1  or other of the events specified in s 196(1) has in fact occurred. This is because it is a condition of the lawfulness of a detention that the detention be for a permissible purpose. The motives or intentions of the Minister, or the officers are not relevant (ALJ20 at [79]). The purpose for the detention had to be carried out as soon as reasonably practicable, or the permissible purpose of the detention had to be undertaken and completed as soon as reasonably practicable (ALJ20 at [81]). Failure to take steps or sufficient steps to pursue the removal of detained unlawful non-citizen from Australia marked the departure of the permissible purpose from their detention.

The words “as soon as reasonably practical” in s 198 are intended to ensure that all reasonable means are employed to remove unlawful non-citizen, and not to define a period or event beyond which detention should be deemed to be unlawful (Al-Kateb v Godwin (2004) 219 CLR 562 at [295]). The Court said that it is the existence or absence of a purpose and not whether or not the purpose has been achieved (AJL20 at [87]). Furthermore, the removal from Australia is not country-specific (AJL20 at [90]; Al-Kateb at [227]).

If your detention is unlawful, the Department cannot detain you again as s 189 cannot cause you to be immediately re-detent (ALJ20 at [62]; Plaintiff M96A/2016 v Commonwealth (2017) 261 CLR 582 at [42] – [45]).

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) to prevent removal and deportation from Australia or click here to find a visa to suit your circumstances.

041 222 4020 or WeChat: AUDvisa

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

The post Removal and deportation from Australia appeared first on Ozzie Visa.

Visa refused because of migration agent fraud or mistake – what can I do?

In Australia, a person who uses, or purports to use, knowledge of, or experience in, migration procedure to assist a visa applicant by preparing, or helping to prep, a visa application. This process is called ‘immigration assistance’ (section 276). The only people who can provide immigration assistance are registered migration agent or qualified lawyer (section 280). A registered migration agent must be a fit and proper person having knowledge of migration procedure (section 290(2)(a)). They must conduct themselves in accordance with a Code of Conduct. Visa applicants are entitled to expect that a registered migration agent to whom they pay the appropriate fee will perform his or her duties as a migration agent in accordance with the Migration Act 1958, and the Code of Conduct (click here to learn more about using a registered migration agent or a migration lawyer).

If your visa refused because of migration agent, you may claim, depending on the circumstances, that you have never applied for that visa.

In the case of Katragadda v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 143. Katragadda first arrived in Australia in 2008 where he completed a course in automotive engineering in 2011. He saw a flyer from S & S Migration that stated:

ATTENTION INTERNATIONAL STUDENTS!

SECURE YOUR FUTURE! WE ARE HERE TO ASSIST!

DON’T WANT TO STUDY!! DON’T HAVE 6 EACH IN IELTS!!

APPLY FOR WORK PERMIT FOR UP TO 4 YEARS AND WORK FULL TIME**

Katragadda went to S & S Migration office to meet with a Mr Ajjan who was a migration agent. He claimed that he paid S & S Migration $3,068.75 and an application for a Temporary Graduate Subclass 485 visa (click here to learn more about this visa) was lodged in Katragadda’s name. Katragadda claimed that:

• He did not sign the online application
• The application did not reveal that S & S Migration had completed the form, nor he appointed them to act for him
• The form appears that he had completed the form
• The form gave his email contact, not that of S & S Migration
• The application form stated that he has applied for a skills assessment
• The application form stated that his nominated occupation of “Automotive Electrician”

The Department refused his Subclass 485 application on 20 April 2012 on the basis that Katragadda had provided information that was false misleading (S & S Migration had provided a bogus or fake skills assessment for his application) or failing to satisfy PIC 4020.

On 9 May 2012, Katragadda applied to the then MRT for review on the basis that he was a victim of the fraud of S & S Migration, therefore he should not be found to have failed to satisfy PIC 4020, or the Tribunal should find that there were exceptional circumstances to waive PIC 4020. However, on 12 June 2014 the Tribunal affirmed the decision.

On 30 June 2014, Katragadda applied to the FCC which was dismissed on 11 September 2015. However, on 31 July 2017 the FCC’s order was set aside by the FCA and his application was returned to the FCC for further hearing.

On 19 March 2019, Katragadda attended the FCC hearing together with his barrister. He claimed that:

• S & S Migration wrongly and fraudulently advised him that he was eligible for the grant of a Subclass 485 visa
• S & S Migration applied for the Subclass 485 in his name
• The bogus or fake skills assessment result was submitted by S & S Migration

In Katragadda’s case, the FCC has to consider:

• whether or not the conduct of S & S Migration constituted a fraud on him; and if so,
• how, if at all, any fraud stultified (that is, make useless) a statutory process under the Migration Act.

You should be aware that there will be no fraud if you authorised or countenanced (or support) the fraud. And you must not be “indifferent” (that is, don’t care) to your migration agent’s conduct with regard to your visa application.

Visa refused because of migration agent’s fraud will depend on, for e.g.:

• number of times you visited or consulted with your migration agent
• what documents you provided to your migration agent and when
• when was the fee paid and whether it was 1 lump sum or by instalments
• when did your migration agent provided you with the Department’s reference number for your visa application

What is ‘indifferent”?

In Katragadda’s case, he provided limited information to S & S Migration for the Subclass 485 visa application, he was blithe (happy) for S & S Migration to apply for a Subclass 485 for him and he made no inquiries about the application for 12 months.

FCC concluded that Katragadda:

• gave S & S Migration general authority to act as his migration agent and to make the Subclass 485 visa application;
• he was indifferent as to whether or not S & S Migration acted unlawfully or dishonestly to obtain the grant for a Subclass 485 visa for him; and
• the conduct of S & S Migration did not constitute a fraud on him.

Test for “indifferent”

Whether you are indifferent to your migration agent’s conduct requires a consideration of whether you held the requisite mental state of reckless indifference to the fraudulent conduct of your migration agent (Kaur v MIBP [2019] FCAFC 53; 269 FCR 464).

In order to determine your state of mind, the Court will determine:

• how often you meet with your migration agent
• how much information or documents you provided to your migration agent
• whether you sign any documents
• whether you know of the information required for your visa application
• whether you follow up on the progress of your visa application
• whether you contacted the Department regarding your visa application

Third party or migration agent fraud

Visa refused because of migration agent’s fraud, the High Court in SZFDE v MIMA [2007] HCA 35; 232 CLR 189 made clear that the ultimate issue in cases such as this is the effect of the third party fraud on the administrative decision making process.

You should be aware that the law accepted that a visa application may itself be rendered invalid by reason of the fraudulent conduct of a third party migration agent if the agent’s conduct is a fraud on you and stultify 1 or more aspects of the visa application process (see for e.g., Gil v MIBP [2016] FCAAC 142; 248 FCR 398; Singh v MIBP [2016] FCAFC 141; 247 FCR 554).

Court said in Kaur (at [136] – [140]) that the requisite state of mind for “reckless indifference” is close to intention or at least, it is a state of mind where the indifference or wilful blindness to the truth of what is being said or done (intentionally fraudulent act or deliberately false or dishonest). Helplessness, or a sense of helplessness, is not the same as reckless indifference. Fear of authority is not the same as reckless indifference or naivety or ignorance or without due care.

Dependence or reliance on your migration agent is also not the same as reckless indifference.

There is a difference between retaining the assistance of a migration agent, giving your general authority to that agent to do whatever is lawful and proper to achieve your visa outcome, and you placing your visa application in the hands of your migration agent and being indifferent to whatever the migration agent uses lawful or unlawful means to achieve the visa for you.

In order to “win” visa refused because of migration agent fraud, you must prove that you have been the innocent victim of such fraud (Marharjan v MIBP [2017] FCAFC 213; 258 FCR  at [78]). You are not complicit in the fraud or “indifferent” to it.

What this mean is, you are required to prove that you were not “involved in” the fraud or was not “complicit” in it. You will need to prove that you had no actual knowledge of the fraud and you were not recklessly indifferent to it (you don’t care whether the migration agent use dishonestly or false means to obtain a visa for you).

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) to help you determine if there is anything you can do for visa refused because of migration agent fraud or mistake.

041 222 4020 or WeChat: AUDvisa

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

The post Visa refused because of migration agent fraud or mistake appeared first on Ozzie Visa.