Goodbye Blogger

From September 2014, I have moved my blog so that it is part of my main website.
The new URL is www.paulcutler.com.au/blog/

Survived 4020

I have previously blogged about PIC 4020 (providing false information or bogus documents).

I just came across this case in the Migration Review Tribunal where an applicant managed to convince the tribunal that his skills assessment was based on real work experience. It appears that there has been an outbreak of common sense:

http://www.austlii.edu.au/au/cases/cth/MRTA/2014/1542.html 

Polio Threat

I received this email from DIBP today (if you want more info let me know):

The Department is introducing measures whereby certain visa applicants will be asked to provide polio vaccination certificates. This is in response to the World Health Organization’s (WHO) declaration that wild poliovirus transmission is a Public Health Emergency of International Concern.

.....

If the visa applicant is applying from outside of Australia and has spent a period of 28 days or longer on after 5 May 2014 in Afghanistan, Cameroon, Equatorial Guinea, Ethiopia, Iraq, Israel, Nigeria, Pakistan, Somalia or Syria, or in any combination of these countries, they should be vaccinated against polio prior to their departure. The visa applicant should provide their current certificate of vaccination against polio. If they are lodging a new application, this should be provided at the time of lodgement. 

No limit to number of protection

On 20 June 2014, the High Court unanimously held that the Minister for Immigration and Border Protection ("the Minister") did not have the power under s85 of the Migration Act 1958 (Cth) ("the Act") to limit the number of protection visas that may be granted in a specified financial year.

Two cases were decided by the High Court - Plaintiff M150 of 2013 v Minister for Immigration and Border Protection [2014] HCA 25 and Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24.

The High Court found under s65 of the Migration Act 1958, the Minister has a duty, after considering a valid application for a visa, to grant the visa if satisfied that certain conditions are met and to refuse to grant the visa if not so satisfied. Section 65A imposes a duty on the Minister to make a decision on protection visa applications within 90 days.

I acknowledge the assistance of the MIA which provided the above text in Notice 2014.68 which was circulated to members this afternoon.

Budget Aftermath 2014

As a result of the May 2014 Federal Budget it appears that a number of "other family" visas are about to cease to exist:

Applications can still validly be lodged. All valid applications will remain in the pipeline and be processed in due course. The cessation of new applications under the Other Family and Non-Contributory Parent visas will take place prior to the start of the 2014-15 programme year. The visa subclasses affected are:

Parent (subclass 103)

Aged Parent (subclass 804)
Aged Dependent Relative (114)
Remaining Relative (115)
Carer (116)
Remaining Relative (835)
Carer (836)
Aged Dependent Relative (838).

Specifics concerning the date the necessary regulatory changes will take effect have not yet been settled and we will get earliest advice to you and your industry colleagues once these details become clear. The announcement in the Budget papers concerns the cessation of new applications under the Other Family and Non-Contributory Parent visa categories and didn’t make reference to “capping at zero” or other measures, that would affect applications validly lodged prior to the cessation date.

If you want one of these, you'd better be quick!

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The above information is taken from email notice dated 16 May 2014 provided by the Migration Institute of Australia (MIA) as a service to its members.

PIC 4020 in the Full Federal Court

On Friday last week (4 April 2014) the Full Federal Court handed down judgment in the first appellate court decision on the meaning of PIC 4020 (bogus documents and misleading information).

The case Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42 was about a bogus IELTS test result that was provided as part of the application. Although you can read the whole case by clicking on the link, in my view the most pertinent paragraphs are the following ones:

32. It is apparent from the terms of PIC 4020 that it addressed the problem of attempts to work a fraud or deception on the assessment of claims for a visa.  That is also evident from the fact that PIC 4020 states a “public interest” criterion, from the narrow and exceptional circumstances necessary to waive its requirements and, more generally, from the serious consequences that follow from its application.  I would not infer any apparent intention to disqualify a visa applicant who could explain an innocent mistake in a document or information provided by them.  PIC 4020 is not directed, in my view, to innocent, unintended or accidental matters.  However, different questions arise when information or documents provided in support of an application are revealed as false, in the purposely untrue sense of that term. 
    ....

49. For the reasons I have already given, it should be accepted that PIC 4020 is directed to information or documents which are purposely untrue.  It seems to me to be clear from the same analysis that the purpose of PIC 4020 was to render visa applicants ultimately responsible for the veracity of the information and documents supplied to support the application.  Although the limited terms of the waiver (and therefore any discretion to excuse non-compliance) make it apparent that innocent errors are not the focus of attention, it is equally clear that PIC 4020 is directed at the overall integrity of the visa system and as a bulwark against deception and fraud from any quarter associated with a visa applicant.  It is not inconsistent with a coherent public policy to make a visa applicant ultimately responsible for purposely untrue material provided with a visa application.  It would be an intolerable burden on the administration of the visa system to require that those assessing visa applications not only discover that information or documents are false in a material particular, but also that the visa applicant who provided them knew them to be so.  In many cases that would be impossible and would defeat the apparent intent of the provision. 
    
    
50. There was no doubt in the present case (and in Vyas) that the IELTS test result form provided by the first appellant contained false information.  It was clearly open to the MRT, on the other facts found by it, to conclude that it was bogus.  It was a counterfeit.  It was not the real thing.

Working Holiday - expanding

Minister Morrison speaking at Tourism and Transport Forum leadership summit, Canberra on 19 March 2014 said:

"Australia's Working Holiday Maker visa programme is a large, popular and growing option for young adult overseas travellers to Australia, with more than 258 000 visa grants in 2012-13, a 15.8 per cent increase from 2011/12.

Remarkably, this is larger than all three of Australia's main Working Holiday Maker competitor markets combined – Canada, New Zealand and the UK.

Established in 1975, the programme has evolved from largely Commonwealth based origins to span 28 countries across the globe, covering Europe, Asia, the United States, Canada and, more recently, expansion into Latin American, following the addition of Chile, Argentine and Uruguay to the scheme.

In terms of participation of travellers from partner countries, the programme has tripled in size over the last decade.


My department is currently in the process of negotiating new and more liberalised Working Holiday Maker visa arrangements with thirteen new partner countries. These include Poland, Mexico, Hungary, Greece, Spain, Portugal, Vietnam, San Marino, the Czech Republic, Israel, Latvia, the Slovak Republic and Andorra. These new countries will provide fresh impetus for growth within the programme itself but also facilitate broader opportunities for tourism engagement.

Providing a unique cultural exchange experience to young adults during their formative years can only enrich the lives of participants, both Australian and partner country nationals.

The economic benefits of the programme too are considerable." [of course!]

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Bogus: PIC 4020

Many visas are subject to "public interest criteria" ("PIC"). PIC 4020 provides a ground to refuse to grant a visa where there is evidence that the visa applicant has given, or caused to be given, a bogus document or information that is false or misleading in a material particular. The scope of PIC 4020 is wider than you think and there is an emerging body of case law on it as well.


It is harsh in its operation (don't get me started) and from 22 March 2014, it's breadth is going to be widened by the Migration Amendment (2014 Measures No 1) Regulation 2014, which is going to add the following to 4020:

1. (2A)  The applicant satisfies the Minister as to the applicant’s identity.

1. (2B)  The Minister is satisfied that during the period:

1. (a) starting 10 years before the application was made; and

1. (b) ending when the Minister makes a decision to grant or refuse the application;

1. neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A). 

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Half of all migrants live in Sydney or Melbourne

This is an ABS media release from 17 March 2014:

Australians born overseas were more likely to live in major urban areas, with half of all migrants living in Sydney or Melbourne according to the latest Australian Social Trends (AST) article released by the Australian Bureau of Statistics (ABS) today.

With one in four Australians born overseas, the AST article looks at the 2011 Census of Population and Housing to see where people live by country of birth.

ABS Assistant Director of Social and Progress Reporting, Ms Guinevere Hunt, said that in all capital cities except for Hobart and Darwin, more than half the CBD residents were born overseas.

"We found that the suburbs with the highest proportion of people born overseas included Haymarket in Sydney, Clayton in Melbourne, Robertson in Brisbane, Regency Park in Adelaide, and Northbridge in Perth. 

"Suburbs near universities also have high proportions of migrants," said Ms Hunt.

The largest migrant group in Australia are people born in the United Kingdom (UK), followed by people born in New Zealand, China and India. This has changed from 2001 when the largest migrant groups were from UK, New Zealand, Italy and Vietnam.

"In Sydney, two in five residents of Harris Park were born in India, and Hurstville had the highest proportion of people born in China. In Melbourne, one in four people living in Sunshine North was born in Vietnam, and in Perth, two in five residents of Jindalee were born in the UK," said Ms Hunt.

AST articles are freely available online at www.abs.gov.au/socialtrends

Unreasonable

What do you think of these facts:

19. At the hearing on 9 November 2012, the Tribunal agreed to wait until close of business on 31 December 2012 to receive the results of the IELTS tests which the first respondent had booked on 17 November 2012 and 1 December 2012. In its own words, the “Tribunal said it would not agree to wait for further evidence after that date, as he made his visa application over 2 years before and he has had many opportunities to sit several English language tests”.
20. The Tribunal’s deadline of 31 December 2012 passed without the first respondent communicating with the Tribunal. However, the next day, 1 January 2013, the first respondent sent a facsimile to the Tribunal, attaching his test results and a letter. The results showed he had achieved the requisite marks in the December test on all topics except the topic of “Listening”, where he scored 5.0. In his letter to the Tribunal, the first respondent wrote:

Dear MRT representative,

Please find faxed documents in support of my above mentioned MRT Case No.: 1205119. I am sending copies of Test Report Card for IELTS tests taken by me on 17/11/2012 and 1/12/2012. Please be advised that I am going to apply for reevaluation/rechecking of test result for the test taken by me on 1/12/2012 and I hope to get the required result (i.e. enough to prove that I have competent English) for the same after reevaluation/rechecking.

21. On 3 January 2013, the Tribunal sent to the first respondent’s migration agent a letter informing the first respondent that it “has declined to grant any additional time” and that it would “now proceed to a decision”.

If you think the MRT's decision not to give an adjournment was unreasonable, you are not alone. This is the same view that the Full Federal Court came to in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 

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Equivalent Terms

Sponsors for 457 visas have an obligation to employ visa holders on "equivalent terms and conditions" to what an Australian doing the same job would receive.

If this condition is not met, apart from sanctions that can be applied by DIBC for non-compliance, the sponsor might end up with an industrial law action on their hands. This is precisely what happened to the franchisors in the following case that was reported in the Sydney Morning Herald.

Details of the sponsors obligations and sanctions can be found on DIBC website.

Mongrel Nation

"Mongrel Nation" was a 6 part documentary on ABC Radio National which explored a number of issues about immigration and multiculturalism in Australia, including:

1. The Asian Century
2. A Big Australia (about migration and population growth)
3. Ugly Mongrel - racism and aggressive nationalism
4. Multiculturalism - the Australian way
5. The life and times of Australian Multiculturalism

I missed it when it was first aired in August 2013, but caught up with the repeats in January 2014. very worth a couple of hours to listen to it. The program home page (where you can download audio files or read the transcript) is at: http://www.abc.net.au/radionational/programs/mongrelnation/

Creative commons acknowledgement for the photograph.

Occupational Ceilings

A discussion paper has just been released seeking views on how occupational ceilings should work in the skilled migration program.

Once an occupational ceiling has been reached, no further invitations or nominations for that occupation can be issued for the remainder of the programme year. Occupational ceilings do not apply to employer sponsored visas so specific skilled vacancies can still be filled through those visa subclasses even after the relevant ceiling has been reached for the points tested visa subclasses. 

Of the approximately 200 occupational groups covered by occupational ceilings, the following six reached their ceilings in the 2012-13 programme year:

•   Chemical and Materials Engineers (ANZCO Code 2331);

•   Electronics Engineers (ANZCO Code 2334);

•   Other Engineering Professionals (ANZCO Code 2339);

•   ICT Business and Systems Analysts (ANZCO Code 2611);

•   Software and Applications Programmers (ANZCO Code 2613); and

•   Telecommunications Engineers (ANZCO Code 2633). 

The system is designed to make sure there is a balance between not filling up the skilled migration intake too quickly against making sure that occupations in demand are filled. It probably all seems a bit unfair if your occupation is one of the six listed. 


If you want to have your say submissions are open until 16 December 2013

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Labour Market Testing - 457

Misuse of the 457 visa scheme apparently continues and the response this time around is to introduce labour market testing ("LMT"). Getting rid of LMT was one of the big reforms the last time there was a major overhaul of the Employer Nomination Scheme…never mind!

I am very grateful to the MIA's email to members this afternoon which provided a very useful summary of the new requirements and which I summarise below:

LMT must be undertaken by standard business sponsors prior to lodging a nomination. Standard business sponsors must provide information with their nomination about:

• Their attempts to recruit Australian workers;

• How they have determined on the basis of these attempts that there is not a suitable qualified and experienced Australian citizen, permanent resident or eligible visa holder available to fill the position.

There are some exemptions for Working Holiday Makers and for Work and Holiday visa holders in the agricultural sector. Thankfully LMT is not needed where it would conflict with Australia’s international trade obligations.

Evidence of LMT must be provided with the nomination. This includes a completed "domestic recruitment summary table" which includes the following:

• List all modes of advertising or recruitment efforts in the last 12 months for that occupation, for example, online, social media, newspaper, internal recruitment, trade publications);

• Provide details of where the advertisement or recruitment effort took place (for example, name of publication, website, job or careers expo);

• Period/dates of advertising or recruitment;

• Fee(s) paid for advertising or recruitment;

• Provide details of who the fees were paid to;

• Geographical target audience;

• Number of applications received;

• Number of applicants that were hired;

• Reasons candidates were not successful;

An authorised person then has to sign off on it: I declare that the information I have provided in this document is, to the best of my knowledge, true and accurate and I am aware of the penalties for providing misleading or false information to the Commonwealth. 

Policy will be released later in the month. In the interim keep checking the DIBP website for more info.

Drowning on our watch

On 1 September 2013, the ABC program "Background Briefing" examined some of the issues about responsibility for rescue at sea.

Australia’s search and rescue authorities stand accused of unnecessary delays, disregarding distress calls and passing responsibility to Indonesia, which is not equipped to carry out rescue operations

Those accusations were again made over the weekend with another sinking and drowning near Indonesia. The issues are complex.

The boat was in Indonesia's search and rescue zone, which covers most of the ocean between Indonesia and Christmas Island, so Australia's maritime safety authority transferred responsibility to its Indonesian counterpart, BASARNAS.
....
Indonesia's BASARNAS office in West Java, which responds to boats in distress on the coastline commonly used by people smugglers, is hopelessly ill-equipped to conduct open sea rescues. The head of operations there, Rochmali, says all they have at their disposal are rubber boats and traditional fishing vessels, which can't go more than five nautical miles from shore.

The podcast is compelling listening or if you prefer there is the transcript:

Asylum Seeker Politics

I have again been dismayed by the politics of asylum seekers. This blog post was partly inspired by a weekly newsletter that I received from the Law Council of Australia. A quick browse down the list of articles this week in the "immigration section" reveals the following:

Brisbane Times - Aug 01, 2013

The first plane carrying asylum seekers denied all chance of resettlement in Australia under Labor's hardline new refugee policies flew from Christmas Island to Manus Island on Wednesday night. Special Broadcasting Service - Jul 31, 2013 Immigration Minister Tony Burke says the opposition is silly to announce plans to build a 2000-bed asylum seeker centre on Nauru. The Age - Jul 29, 2013 The first group of asylum seekers to be sent to Manus Island under the new deal with PNG are expected to arrive from the end of the week as Prime Minister Kevin Rudd indicated that The surge in boat arrivals sparked by Labor's hardline Papua New Guinea refugee resettlement plan is unlikely to be.... The Daily Telegraph - Jul 28, 2013 ANDREW BOLT: Prime Minister, in 2008 you scrapped our tough border laws. Now, an Australian Federal Police report compiled around September in that same year warned that people smugglers, and I'm quoting, "will market recent changes to Australia's immigration policy to entice potential illegal immig The Age - National - Jul 28, 2013 AAP Prime Minister Kevin Rudd has refused to say when his hardline plan to banish boat asylum seekers to Papua New Guinea will work, as another refugee vessel is intercepted en route to Australia. I am not an expert on the Refugee Convention, but even with my basic knowledge, I am having trouble understanding how the PNG solution (which is obviously politically ingenious)  could not be in breach of the Convention. I am sure there is non-political analysis of this out there, but I refer to the following two articles: International Law Matters - even on Manus (New Matilda 30 Jul 2013) and PNG Policy places politics over principle (Eureka Street 19 July 2013) I wish the game of political table tennis and the race to the bottom to find the harshest policy would stop! Creative commons acknowledgment for the photograph

457 in the press

The 457 (temporary 4 year working) visa has been controversial since its introduction by the former Howard government. On one hand employer groups complain of labour shortages and the inability to fill skilled vacancies, on the other hand, the unions and employee groups say it should be jobs for Australians as a priority. In the middle are the (sometimes exploited) foreign workers.


In this post, I have collected some of the recent media stories:

1. On 23 February the Minister announced some further changes to the program -  Reforms to the temporary work (skilled) (subclass 457) program
2. One of the predicted responses -  Opposition slams immigration visa reform
3. More reports of rorts
4. Then there are issues about compliance and monitoring
5. Some self interest from the IT sector
6. Then there followed the revelation that senior members of the Prime Minister's own staff were holders of 457 visas - link here;
7. The Premier of Western Australia defended the 457 visa scheme
8. The Australian Industry Group has its view as well
9. More rhetoric from the PM
10. Crikey's view is that the debate is xenophobic 
11. Are the PM and her department talking about the same thing - DIAC report on the 457 visa

I will restrain myself from going on, but the heated debate continues on....

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New Visitor Visas

From 23 March 2013 there are a number of changes to visitor visas. There are now 5 subclasses of visa:

1. The Temporary work (short stay activity) visa (subclass 400) lets you come to Australia on a temporary basis to: (a) do short-term work; or (b) conduct an activity as an invited participant in an event;
2. The visitor visa (subclass 600) lets you visit Australia for tourism or business visitor activities.Tourism includes holidays, recreation and seeing family or friends. Business visitor activities may include attending a conference, negotiation or an exploratory business visit.
3. Electronic Travel Authority (ETA) (subclass 601) and an eVisitor visa (subclass 651) will be available to passport holders of specific countries; and
4. There will also be a new medical treatment visa (subclass 602)

There are more details (and explanatory videos) on the DIAC website.

Creative commons acknowledgment for the photograph.

Cancellation and kids

I received this in a CCH news alert email today - a very interesting case about the interests of family members in the context of a visa cancellation based on bad character:

Cancellation of visa; legitimate expectations, 22 October 2012

23 October 2012

The Federal Court has further explained the Article in the United Nations Convention which (relevant to Australia and its decision-makers) requires that the best interests of the child shall be a primary consideration. The case was Baker v Minister for Immigration and Citizenship [2012] FCAFC 145, concerning a delegate’s decision to cancel the appellant’s visa under s 501(2) of the Migration Act 1958 (Cth) on the basis of a “substantial criminal record”. In an unsuccessful appeal to a full court of the Federal Court, the full court said that the appellant (father of three children who lived with other family members) had misstated the effect of the observations of Mason CJ and Deane J in the 1995 High Court case Teoh. The full court said that it agreed with the following analysis by Tracey J of that aspect of Teoh inBasile v Minister for Immigration and Citizenship (2011) 193 FCR 329: “Teoh does not require that the best interests of Mr Basile’s children must be given temporal primacy over the other three primary considerations which are identified in the Direction. The case stands for the proposition that, by ratifying the United Nations Convention on the Rights of the Child 1989, done at New York on 20 November 1989 (the Convention), the Australian government has represented that it will act conformably with the terms of the Convention. One of its Articles provided that, in all actions concerning children, administrative authorities of the State would ensure that ‘the best interests of the child shall be a primary consideration’ (emphasis added). Although the Convention had not become part of domestic law, its ratification gave rise to a legitimate expectation that administrative decision-makers would comply with it and would not fail to do so without first affording an affected person the opportunity to argue that the decision-maker should treat the interests of a child as a primary consideration. It was not held that an Australian administrative decision-maker must always accord primacy to the interests of any relevant child much less that such a consideration must be brought into account before any other considerations are selected and weighed by the decision-maker.” In Baker, the full court also held that the primary judge was correct to emphasise the need to appreciate that it is usual for administrative decision-makers (and indeed others) to express their reasons sequentially. For example, expressions of conclusion in a particular sequence did not necessarily indicate that there has been a failure to consider the evidence as a whole.

Lots of changes

There have been lots of changes implemented from 1 July 2012. In fact there are so many that it is very difficult to blog about them all. Nevertheless some of the highlights are:

1. There is now a points test for the Business Innovation and Investment Program (the old business skills visas) - details on that points test can be found by clicking here
2. The new Consolidated Skills Occupation List (CSOL) has been published (IMMI 12/039). It is in two sections - Schedule 2 deals with employer and state sponsored occupations, while schedule 1 applies to most other visa subclasses;
3. There has also been a change to the processing priority (which will affect previously lodged applications) - click here for details; and
4. The Temporary Skilled Migration Income Threshold (TSMIT) which is relevant to 457 applications has been increased to $51,400 from 1 July 2012. The significance of the TSMIT is that employers are required to pay temporary entry visa holders the market rate for their position, but the market rate cannot be below the TSMIT.