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Australia Immigration Law Update No 161

In this issue

Table of Content

  • Travel to Australia for Business and Investment (SC188) Visa Holders

  • HWLJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1039 (22 July 2020)

  • Rejection of applicant's claim as not credible without considering country information- jurisdictional error is made out –

  • Case References

  • BYT20 v Minister for Home Affairs [2020] FCCA 2191 (7 September 2020)

  • AAT use of Microsoft Teams - Video Conference AAT hearing – Our Concern and their respond

  • New Priority Occupation List

  • New visa arrangements for Hong Kong passport holders.

  • Key to win on SCHEDULE 3 ISSUES AND WAIVER on onshore partner visa cases SC820/801.

  • Immigration Law E-books – Visa Cancellations

  • Welcome to RMA Training

Travel to Australia for Business and Investment (SC188) Visa Holders

Subclass 188 Visas have been added to the list of visas that are exempt from border restrictions in Australia. However, the visa holders need to cover the cost of their 14 day hotel quarantine period in addition to the flights. Quarantine fees do vary between Australian State & Territories however indicative fees in Sydney, New South Wales, the main international gateway, are $AUD 3,000 for the first adult, $1,000 for the second adult and $500 for each child. If you are transiting through Sydney for less than 48 hours there is no fee and you will be in quarantine at your final destination in Australia.

 

The list of people who are exempt from travel restrictions to Australia can be found here

HWLJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1039 (22 July 2020)

The applicant was represented by Michael Jones, Principal – Parish Patience Immigration Lawyers. The Court made orders for the decision of the Tribunal be set aside and for the matter to be remitted to the Tribunal to be heard and determined according to law and cost orders were made in favour of the applicant.

Overview of Facts

The applicant is a Sierra Leone national who arrived in Australia 2 February 2011 as a partner visa holder. On 2 August 2018, the applicant was issued a notice by the Department that his visa had been cancelled under section 501(3A) of the Migration Act 1958 on the following bases:

  • that he failed to pass the character test as he had been convicted of one or more sexual offences against a child as per section 501(6)(e)(i); and

  • that he had a substantial criminal record as a result of having been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more as per section 501(7)(d).

With respect to his criminal history, the applicant was convicted of the following offences:

  • In 2012, the applicant plead guilty to a charge of indecent assault and was sentenced to 6 months imprisonment by the Tasmanian Supreme Court.

  • In 2016, the applicant plead guilty to two offences of indecent assault and was sentenced to an aggregate sentence of 70 days imprisonment in Victoria.

  • In 2018, the applicant was sentenced to two concurrent periods of imprisonment of 3 months and 19 days for driving a motor vehicle during a disqualification period at a New South Wales local court.

Procedural History of Matter

The applicant sought revocation of the cancellation which was unsuccessful. The applicant proceeded to apply for merits review of this decision. On 21 October 2019, the Administrative Appeals Tribunal affirmed the delegate’s decision. The applicant then sought judicial review of the Tribunal’s decision.

Grounds Relied Upon

The applicant relied on the following grounds in his application for judicial review:

  1. the Tribunal erred in finding that the applicant did not pass the character test under s 501(6)(e)(i) of the Migration Act;

  2. the Tribunal made a critical finding of fact that was unsupported by the evidence and failed to take into account evidence and submissions provided by the applicant such that the decision is seriously lacking a foundation, rationality, and logical coherence in a way that was legally unreasonable, which related to the finding as to the absence of any objective basis for the applicant’s subjectively held fear of returning to his country of nationality, Sierra Leone; and

  3. the Tribunal erred by failing to consider as a primary consideration all the claims advanced on behalf of the applicant’s child.

Overview of Decision

The applicant’s succeeded in presenting a case of jurisdictional error on the basis of Ground 2 wherein the applicant made submissions to the effect that the Tribunal had erred in failing to appropriately consider the applicant’s subjective fear of returning to Sierra Leone. The applicant submitted to the court that extensive evidence demonstrating his reasons for being fearful of returning was presented to the Tribunal but were not afforded the appropriate consideration. The applicant presented to the Tribunal evidence of significant mental health issues including his diagnosis of PTSD. The applicant further put forth the argument that he was on the Sex Offenders Register and would likely face harm if the nature of his offences were made available to the authorities in Sierra Leone, based on country information. The applicant argued that the Tribunal failed to give due consideration to the above claims and as such committed jurisdictional error citing the case of DCC18 v Minister for Immigration [2020] FCA 395 at [40] stating that had there been ‘active intellectual engagement’ the evidence there would have been a realistic possibility of the difference outcome to the Tribunal’s decision. The Court referred to the Tribunal’s decision and noted that while a Tribunal’s failure to refer to a claim may not necessarily give rise to the inference that the Tribunal did not actively engage in the intellectual process however in reading the Tribunal’s decision in this case, the Court did find that the Tribunal failed to consider the applicant’s claims appropriately as it made insufficient factual findings in relation to the applicant’s claims. The Court noted that the Tribunal in fact failed to make any reference to the applicant’s PTSD or the implications his prior convictions of sexual based offences would have on his safety if returned to Sierra Leone. On this basis, the applicant was successful in demonstrating grounds for jurisdictional error.

Decision 

Call 02 9286 8700 to book an appointment with Michael Jones

Rejection of applicant's claim as not credible without considering country information- jurisdictional error is made out

CZN19 v Minister for Immigration & Anor [2020] FCCA 1936 (14 August 2020)

Overview of Facts

The applicant is a Sri Lankan national who arrived in Australia in 2012 as an unauthorised maritime arrival and proceeded to apply for a Safe Haven Enterprise visa on 3 March 2017 on the basis of his fear of serious harm if he is to return to his home country as a result of his involvement with the Liberation Tigers of Tamil Eelam (LTTE). The applicant claimed that he had spent six months working for the LTTE at a base located at Elephant Pass. It should be noted that both the delegate and the IAA made adverse findings in relation to the applicant’s credibility.

Procedural History of Matter

On 22 May 2019, a delegate of the Minister for Immigration, refused to grant the applicant a protection visa. The applicant sought merits review at the Immigration Assessment Authority. On 2 July 2019, the Authority affirmed the delegate’s decision not to grant the applicant a protection visa. The applicant then sought judicial review of the Authority’s decision. The judicial review application was before Humphreys J at the Federal Circuit Court.

Grounds Relied Upon

The applicant relied on the following two ground in his application for judicial review:

  1. The IAA erred in finding that the applicant’s evidence was unsatisfactory as such state of non-satisfaction was unreasonable and based on illogical grounds and a misunderstanding of the evidence.

  2. The IAA failed to consider the applicant’s claim cumulatively

Overview of Decision

In relation to Ground 1, the court considered the applicant’s submission that the Authority lacked a reasonable basis to make an adverse finding of the applicant’s credibility. Particularly the Authority in its decision stated that they had difficulty believing that the applicant ‘did not know basic information about the [LTTE] base leader and that he was sent home just prior to the end of the way.’ The applicant argued that the Authority has no basis or evidence to suggest that the applicant should have been privy to such information nor did it explain what exactly would constitute basic information. While the Court found that the applicant had understated this basis of the credibility finding, the Court did further question the Authority’s finding that it would be unlikely that the applicant would be sent home by the LTTE towards the end of the war as claimed by the applicant stating that the Authority failed to refer to any country information that may support this particular finding. As the review was paper-based and no interview was conducted the Authority further did not accord the applicant procedural fairness by providing him with the opportunity to comment on any adverse findings of credibility. As a result of a lack of reasoning process for the Authority’s decision, the Court found that jurisdictional error was made out.

In relation to Ground 2, the Court did not find jurisdictional error stating that as each of the applicant’s claims were dealt with, there was no requirement for the Authority to assess the applicant’s claims cumulatively.

Outcome

The Court made orders for the initial decision of the Minister to be quashed and ordered that the applicant’s application be decided in accordance with the law

Decision

Case References

DAF17 v Minister for Immigration & Anor [2020] FCCA 1763 (12 August 2020)

  • IAA finding that the applicant could modify his behaviour to avoid harm from non-state actors – jurisdictional error established in respect of the Authority’s consideration of CP.

                                           --------------------------------

DPI18 v Minister for Immigration & Anor [2020] FCCA 1805 (17 August 2020)

  • Authority constructively failed to exercise its jurisdiction on review by not considering the applicant’s claim that he was at risk on the roads in Afghanistan in travelling to visit his immediate family in Quetta, Pakistan. - Error found

                                           --------------------------------

DST18 v Minister for Immigration & Anor [2020] FCCA 1813 (18 August 2020)

  • Authority either misapprehended or overlooked important evidence by the applicant and thus its application of s.473DD to the New Claim miscarried.

                                           --------------------------------

CPR17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1212 (24 August 2020)

  • IAA's decision was affected by jurisdictional error because it involved unreasonableness or illogicality or both

                                           --------------------------------

Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061 (28 July 2020)

  • Tribunal misconstrued clause 500.212 of Sch 2  – meaning of “intends genuinely to stay in Australia temporarily” – appeal allowed

                                           --------------------------------

Jai Babaji Di Pty Ltd v Minister for Immigration & Anor [2020] FCCA 2018 (24 July 2020)

  • Failure to grant adjournment an unreasonable exercise of discretion – decision of Tribunal quashed.

                                           --------------------------------

Daneshpour v Minister for Immigration & Anor [2020] FCCA 879 (23 April 2020)

  • Failure by Tribunal to consider all relevant circumstances cumulatively amounts to error

BYT20 v Minister for Home Affairs [2020] FCCA 2191 (7 September 2020)

The applicant was represented by Michael Jones, Principal, Parish Patience Immigration Lawyers and an accredited specialist in Australian Immigration Law. The Court made orders quashing the delegate’s decision not to revoke the cancellation and issued a writ of mandamus requiring the Minister to re-determine the matter of the applicant’s cancellation according to law.

Overview of Facts

The applicant is an Afghan national who was granted a permanent protection visa on 19 October 2012 and granted a resident return visa on 5 August 2017. On 14 November 2018, a delegate of the Minister decided to cancel the applicant’s visa under s 128 of the Migration Act on the basis of an Information Report by the Australian Federal Police based on an email alleging the applicant was not a genuine refugee but was instead a “fake and [a] spy” and that the applicant had never in fact been to Afghanistan. The email further alleged that the applicant was employed as a constable in the Pakistani police force.

Procedural History of Matter

The applicant sought a revocation of the cancellation on 11 December 2018 on the basis that the particulars provided in the notice of cancellation were insufficient. On 3 April 2019, the delegate made the decision not the revoke the cancellation of the applicant’s visa. The applicant now seeks judicial review of this decision.

Grounds Relied Upon

The applicant relied on the following grounds in his application for judicial review:

  1. That the delegate failed to comply with the requirement of s 129 of the Act as the notice of cancellation failed to provide sufficient particulars of the information because of which the ground for cancellation was considered to exist.

  2. The delegate denied the applicant procedural fairness as they refused to provide the applicant with copies of documents which were said to establish the applicant was a Pakistani citizen, the delegate failed to make enquiries of fact which could establish whether the applicant and the Pakistani citizen were the same person and the delegate failed to inform the applicant of the outcome of a specialist forensic facial examination that was conducted on the applicant’s photograph and that of the Pakistani citizen.

  3. The delegate’s decision was unreasonable as it failed to engage in an active intellectual process in relation to the evidence before it, particularly failing to consider the specialist forensic facial examination with no justification, failing to consider the applicant’s evidence of having not been employed as a Pakistani police officer, that the delegate engaged in circular fact-finding and made findings of fact without probative evidence.

  4. The delegate’s decision was affected by apprehended bias.

Overview of Decision

In relation to the first ground, the applicant made submissions stating that the Minister was required by s 129 of the Migration Act clearly to give a notice to the applicant that would provide him with the particulars of the information and grounds on which the Minister was relying to cancel his visa insofar as he is able to put forth a case in response. In the applicant’s case, the evidence held by the Department included a Pakistani CNIC, a photograph of the applicant described to bear a strong resemblance of the holder of the Pakistani CNIC and other such documents. As such, it was contended by the applicant that where a photo is one of the information used to invoke the Minister’s cancellation powers, it is impossible for a person to address such an allegation without being able to view a copy of the photo. This made the notice by the Minister invalid. On the basis of this submission, the Court found that this ground was established stating that ‘if a person says to another person that they have a photograph that they think is a photograph of the other person, how is that person to respond without seeing the photograph?’

In regards to the second ground, the applicant submitted that he was denied procedural fairness on the basis that the delegate refused to provide copies of the photographs referred above, that the delegate failed to make inquiries into how the CNIC was applied for and that the delegate had failed to inform the applicant of the outcome of the Forensic Facial Examiner’s report. The court found this ground to be established as well as the applicant could not be expected to usefully respond to the s 129 Notice without being presented with the particulars relied upon by the Minister and that the applicant should have been notified of the forensic facial examiner’s report as it was a document critical to the delegate’s decision.

The Court also found Ground 3 to be established on the basis of the applicant’s submissions that the delegate acted unreasonably in substituting her own lay opinion for that of the forensic facial examiner but found that Ground 4 was not made out.

Call 02 9286 8700 to book an appointment with Michael Jones

AAT use of Microsoft Teams - Video Conference AAT hearing

The COVID-19 pandemic has affected the capacity of the Tribunal to conduct hearings in person and the move to hearings by video conference was made to enable it to continue to meet its objectives. The Tribunal has elected to use the Microsoft Teams application within our Microsoft Azure cloud tenancy to conduct hearings by video because it has the functionality and security to meet the Tribunal’s needs and could be quickly deployed and accessed by users.

Letter from AAT

New Priority Occupation List

New Priority Migration Skilled Occupation List (PMSOL) has listed 17 occupations to meet the urgent need of skills to support Australia’s economic fall back due to COVID 19.

PMSOL occupations priority processing will apply only for the following employer sponsored visa programs:

  • TSS visa (subclass 482)

  • ENS visa (subclass 186)

  • RSMS visa (subclass 187) and

  • Skilled Employer Sponsored Regional visa (subclass 187)

Other current skill migration occupation lists will remain in operation and applications will be processed, but the PMSOL occupations will take priority.

PMSOL is temporary and the occupations may change as Australia recovers from the pandemic.

PMSOL occupations are in the health care, construction and IT sectors.

  • 111111: Chief Executive or Managing Director

  • 133111: Construction Project Manager

  • 233512: Mechanical Engineer

  • 253111: General Practitioner

  • 253112: Resident Medical Officer

  • 253411: Psychiatrist

  • 253999: Medical Practitioner nec

  • 254111: Midwife

  • 254412: Registered Nurse (Aged Care)

  • 254415: Registered Nurse (Critical Care and Emergency)

  • 254418: Registered Nurse (Medical)

  • 254422: Registered Nurse (Mental Health)

  • 254423: Registered Nurse (Perioperative)

  • 254499: Registered Nurses nec

  • 261312: Developer Programmer

  • 261313: Software Engineer

  • 312911: Maintenance Planner

Visa holders, who were sponsored by an Australian business in a PMSOL occupation can request an exemption from Australia’s travel restrictions, but will be subject to 14 days quarantine on arrival at their own expense.

Call 02 9286 8700 to book an appointment with Parish Patience Immigration Lawyers

New visa arrangements for Hong Kong passport holders

  • Hong Kong passport holders who held a 485 temporary Graduate or 482 / 457 Temporary Skilled Shortage visa on 9 July 2020 will automatically have that visa extended for 5 years.

  • Current and future students from Hong Kong who complete their tertiary studies and meet the usual requirement and Australian study requirement will be eligible for 5 year Temporary Graduate visa.

  • Who apply for temporary skilled visa, have qualifications listed on the occupational skills lists and meet the LMT requirements will be eligible for 5 year visa.

Almost 10,000 temporary skilled, temporary graduate and student visa holders are in Australia, 2,500 are outside Australia and there are 1,250 pending applications.

Those applicants receiving the 5 year extension or who are granted a 5 year visa will be eligible for permanent residency at the completion of 5 years provided they pass the security, character and health checks.

Student visa holders studying at a regional campus, both living and working in regional Australia will have a pathway to permanent residency after 3 years.

Government is working towards attracting global talent and export oriented businesses from Hong Kong, particularly which has potential for future growth and employment of Australians.

Key to win on SCHEDULE 3 ISSUES AND WAIVER on onshore partner visa cases SC820/801

Subclass 820 partner visa applicants who are unlawful citizens or are the holders of a Bridging Visa at the time of lodgement in Australia will be subject to Schedule 3 issues. During the processing of the Subclass 820 visa application, the Department of Home Affairs (DOHA) will look into these issues and invite applicants to comment and request them to submit further evidence to support a waiver request submission. Applicant’s, at this time, can explain why they are entitled to lodge an onshore partner visa (subclass 820) while they are in Australia. If the applicants are not able to submit compelling reasons and evidence, their Subclass 820 visa applications will be likely refused.

In most cases, after the applications were refused by DOHA, the applicant will have the right to appeal the refusal to the Administrative Appeal Tribunal (AAT) within a strict timeframe of 21 days from the date of the notice of refusal. The AAT will then take all factors and evidence into consideration and will give the applicants an opportunity to present their cases (either by themselves or with the assistance of their lawyers/migration agents) by ways of submitting further evidence and in most cases a Tribunal hearing.  The Tribunal will apply the same law to decide the applicants have compelling reasons which form the basis for a positive decision.

Prior to 11 March 2016, both DOHA and the AAT only considered Schedule 3 – Compelling Reasons evidence at time of application. However, we (Parish Patience Immigration Lawyers) took a lead case and accordingly, submitted that a decision maker is not limited to consider the circumstances at the time of application when determining whether compelling reasons exist for waiver of the schedule 3 requirements. The decision maker must consider all circumstances, including after lodgement of the application. We later had successfully won this leading case by receiving a decision handed down by the Full Bench of the Federal Court in the matter of Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 (11 March 2016)

Schedule 3 issues are complicated and difficult and require detailed submissions to be made in support of the application. Generally, the compelling reasons relate to the nature of the relationship and any children from the relationship and a combination of other compelling reasons. Applicants are advised to seek the assistance of professional lawyers/migration agents. During consultations we always assess and advise potential applicants of the risk of any potential Schedule 3 issues. Please contact us if you need assistance in dealing with Schedule 3 issues and waiver applications.

 

Written by Thong Nguyen

Director/Senior Migration Agent (MARN 0322836)

Parish Patience Immigration Lawyers

Tel: 02 9286 8700

Immigration Law E-books – Visa Cancellations

Parish Patience Immigration Lawyers' Legal Practice Manager, Mr. Michael Jones, recently published a book titled: "The Law of Visa Cancellation in Australia", an overview of visa cancellation powers and procedures in Australian law.

Mr Michael Jones is an Accredited Specialist in Australian Immigration Law and admitted to practise in all Federal and New South Wales courts. He teaches in the Graduate Certificate in Australian Immigration Law and Practice course at the Australian National University and is an editor of the Citizenship and Migration Law title of Halsbury's Laws of Australia published by LexisNexis.

The book is now available for purchase on Amazon.

For study purposes, we recommend that you open the books on a laptop or desktop with the free PC or Mac reader. You can then arrange the text across the screen any way you like (we suggest a two-column spread) and you can also keep the Table of Contents open on the left. Hyperlinks that you have opened in your browser can be kept open for reference while you read.

Welcome to RMA Training

RMA Training has been approved as a CPD Provider under the new activity framework from 1 January 2018. RMA Training provides a full range of activities that comply with the registration requirements for Registered Migration Agents and solicitors holding a practicising certificate in NSW (Rule 6.1 of the Uniform Rules 2015). RMA Training also offers private study online CPD for RMAs and has commenced publishing a series of e-books on Australian immigration law.

RMA Training was founded by Michael Jones, an accredited specialist immigration lawyer and registered migration agent (9255530) with over 30 years of experience in migration law and practice, and Maria Teixeira-Alves, who is a qualified teacher with postgraduate qualifications in Vocational Education and Training (UTS) as well as Australian Immigration Law and Practice (VU) and over 20 years of experience in education management and development with TAFE NSW.

Book CPD with RMA Training HERE

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