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!

Creative commons acknowledgment for the photograph.

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.