Australian Immigration Daily News

Claims of denial of procedural fairness can be a real life-saver!

If a visa application has been refused, and the refusal affirmed by the Tribunal, it may well be possible to get the Tribunal decision “quashed” in the Federal Circuit Court and sent back to the Tribunal for re-determination if it can be shown that the Tribunal did not afford the applicant procedural fairness.

The power of a claim of denial of procedural fairness was illustrated in a decision that was handed down by Judge Riley of the Federal Circuit Court in February of this year and that appeared on Austlii earlier this week:  CCM15 & Ors v Minister for Immigration & Anor (2017) FCCA 304 (23 February 2017).

When does the Administrative Appeals Tribunal have jurisdiction to review the refusal of an application for a 457 Temporary Work (Skilled) visa?

The answer is not, fortunately or unfortunately, “Whenever it wants to!”

In all seriousness, the question of when the Tribunal does have jurisdiction to review the refusal of a 457 application has been one of the most “hotly litigated” issues before the Federal courts in recent years, and has resulted in a number of important decisions that provide guidance on the issue.

Are Australia’s migration laws too rigid and inflexible?

Are they applied in a way that is too rigid and inflexible?

Do they leave too little room for compassion, or for unforeseen circumstances truly beyond an applicant’s control?

It is now a Schedule 1 requirement that the applicant must not have turned 45 at the time of invitation to apply for the visa.

It seems that the Treasury and DIBP may not be singing from the same hymn sheet. A person of 45 years of age is a long way from retirement age, and will contribute potentially another 25 years of skilled labour to the Australian economy (and to their superannuation funds).

The visa system does not exist in isolation; it sits in a system of markets such as the local labour market, and increased longevity. Australia’s Future Tax Review discussed an increase in the preservation age for superannuation to 67 years to be phased in from 2024. For immigrants, there could be a greater need to work for longer to make up for a potential shortfall in retirement income through Australian superannuation.

On Friday, the Government released new Legislative Instrument revising the age requirement for Points Tested Subclass 189 visa.  The same instrument also clarifies GSM Pathway for NZ Citizens on the basis of residing in Australia for a period of five years.  The paradoxical nature of this announcement is unfortunate. On one hand, this is unwelcome news for applicants who are 45 or over as they will no longer be able to meet the associated age requirement.  On the other, NZ citizens may apply for GSM with lesser restrictions.

Applicants who are 45 and over

The Instrument confirms that applicants for a 189 visa assessed from 1 July 2017 must be under 45 years of age at the time of receiving an invitation to apply.  No doubt, this is placing further restrictions on permanent visa options (or lack of) which are currently available to skilled migrants wanting to migrate to Australia.  Subclass 189 applicants who have lodged an Expression of Interest and are/will be 45 or over at the time of Invitation, will no longer be able to meet the age requirement for this visa.  Applicants who are impacted may be eligible for another visa including State Nominated permanent residence or permanent residence via the Employer Nomination Scheme.