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.

New passmark

I have previously blogged about the new (starting on 1 July 2012) SkillSelect system.

It was announced on 15 June 2012 that the passmark for the SkillSelect visa subclasses will be 60 (down from the current 65). The current (or soon to be "old") system is going to remain open until 31 December 2012.

Also, although the new consolidated list of skilled occupations has not been announced, DIAC have made some minor changes to the existing SOL. It's not good news for chemists, audiologists, bricklayers and tilers, but it is good for mining production managers, metallurgists, optometrists and computer network engineers. Details on the new SOL can be found here.

Creative commons acknowledgement for the photo.