Australian Immigration Daily News

Does it seem to you that the Department is running a small “cottage industry” involving cancelling visas on character grounds?

If you have a look on Austlii, you can certainly get that impression!

Cases before the Tribunal challenging cancellations by delegates of the Minister. Judicial review applications in the Federal Court against decisions made personally by the Minister to cancel, or to refuse to revoke cancellation decisions made by delegates. Appeals to the Full Court from decisions of the Federal Court dismissing judicial review applications against cancellation decisions.

There is no doubt that the removal and addition of occupations to the List is somewhat of a mystery.  Unfortunately, the short answer is that there is no way to predict whether a particular occupation will remain on the List for the following financial year.  However, it is important to understand how decision is made to keep or to remove a particular occupation.  The understanding of the review process is now more important than before given the Government’s recent overhaul of the Temporary Visa Framework.

The Consolidated Skilled Occupations List (SCOL)

This List has been significantly condensed from 651 to 435 occupations, with 216 occupations removed. The Consolidated Sponsored Occupation List (CSOL) has been renamed to the new Short-term Skilled Occupations List (STSOL) and will be updated every six months based on advice from the Department of Employment.

What is the scope of the Full Court’s decision in the Waensila case?

Remember? Waensila  was the case where the Full Court overturned the Federal Court’s previous decision in the case of Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs that held that the only matters which can be taken into consideration when the Department/Tribunal are deciding whether to “waive” Schedule 3  criteria are matters that were in existence at or before the time of the application.  

In Waensila,  the Full Court held that regulation 820.211(2)(d) (ii), which permits the “waiver” of Schedule 3 where there are compelling reasons for not applying the Schedule 3  criteria, is not itself a “time of application” criterion. Accordingly, the Full Court decided in Waensila that when it considers whether to exercise the discretion to waive Schedule 3,  the Tribunal is not limited only to circumstances in existence at the time of the visa application.  Rather, under Waensila the Tribunal is at liberty to consider any matter that is in existence at the time that the decision whether to waive Schedule 3  is made.

Dear Migration Alliance Members

Thank you for the opportunity to serve you all on the board of Migration Alliance Inc.

I have decided to resign from the position of Secretary, immediately.

Another day, another decision that illustrates the obstacles to getting a “waiver” of Schedule 3 criteria!

The decision, Awad v Minister for Immigration & Anor (2017) FCCA 452, was handed down by Judge Driver on 10 May 2017.

This was the story: the applicant was a Lebanese national who originally arrived in Australia in February 2010 on a student visa. That visa ceased on 15 March 20102. He then applied for a further student visa, with that application also being made on 15 March 2012, but that second student visa application was refused. He then applied for a partner visa in July 2013, but in December 2014, the Department deemed that that application was “invalid” (why it took the Department approximately a year and a half to figure out that this application was “invalid” is not explained in the Court’s decision, but “whatever”.  Finally, the applicant re-applied for a partner visa in December 2014. It was that application which was the subject of the proceedings before the Federal Circuit Court.