It is “so so so” important that the Administrative Appeals Tribunal (formerly the Migration Review Tribunal) “get the facts right”!

And when it doesn’t, the mistake about the facts can cause the AAT to commit “jurisdictional error” which can in turn prompt the federal courts to “quash” (overturn) the AAT’s decision.

That this is “so” was illustrated by a judgment of Judge Manousaridis of the Federal Circuit Court in the recently-decided case of Srestha v Minister for Immigration & Anor (2015) FCCA 22262 (28 August 2015). 

Consumer Protection?

There have been some subtle changes to the registration certificates for migration agents and the evidence of that registration as shown as shown in the registration certificates below.

A registered migration agent is obliged to have in their office, prominently displayed, evidence of the fact of their registration as a migration agent and a copy of the Code of Conduct.

Presumably this is to avoid a situation where an unsuspecting member of the public would attend the offices of a person giving immigration assistance but is not in fact registered. Thus, the certificate which evidences the registration would then act to allay the concerns that the member of the public may have about dealing with an unregistered person.

Can a child who is born in Australia to parents who are not Australian citizens or permanent residents acquire Australian citizenship if there are insurmountable practical difficulties in the way of securing citizenship in the parents’ home country? 

The Administrative Appeals Tribunal was called upon to consider this issue in the recently-decided case of KKRG and Minister for Immigration and Border Protection (Citizenship) AATA 635 (27 August 2015).

As RMAs may be aware, there is a clearly-defined pathway under the Australian Citizenship Act2007 for a child whose parents are not themselves Australian citizens to obtain Australian citizenship her/himself.

Typically, the department cancels between 8,000 and 9000 visas annually, but in the latest figures released by the DIBP for the year ending June 2015, there has been a 30 per cent increase in the number of cancellations, according to a report in The Australian.

The visas of 1793 Chinese students were cancelled making them the highest risk group. With 1160 visa cancellations, South Korean students were next, followed in number by students from India, Vietnam and Thailand.

The total number of student visas issued rose by 2 per cent, from 292,060 to 299,540.

Low-quality education providers, unscrupulous education agents, and the overly complex current student visa framework have been blamed for these large number of visa cancellations.

Last month, two colleges - St Stephen Institute of Technology and Symbiosis Institute of Technical Education - were shut down after allegations that they were not providing education, but were “being used to source student visas for Indian students who then go to work…”

The ABF has revealed that it routinely conducts operations like the one it abandoned on Friday in Melbourne. This is despite the fact that the Migration Act provides no scope for officers to demand visa details from people who happen to cross their path.

Section 188 of the Migration Act essentially states that identity documents may be requested when an ‘officer knows or reasonably suspects’ a person is a non-citizen.

How would an officer know or suspect that a person is non-citizen, without a tip-off? Racial profiling makes for easy targets. Perhaps even spotting someone reading a foreign language book, may be good enough. Such are the wide-powers under s 188. To make things worse, s189 allows the officer to arrest that person if the officer suspects that person is an unlawful citizen.

In explaining the failed Operation Fortitude, an ABF statement pointed out that, “Joint operations of this type are common and were previously conducted by Departmental immigration officers.” Surprisingly, there hasn’t been much discussion in the media about what may well be illegal operations whereby innocent people are confronted by these officers to give up their identity documents, where there may be no need to do so.

Leanne Weber ARC Future Fellow in Internal Border Policing at Monash University in an article in The Conversation says that ABF officers acting on suspicion by way of tip-offs from the police, do so with ‘little scrutiny’. This lack of scrutiny, Dr Weber says has led to the deportation of several overseas born Australians, including Vivian Solon and Cornelia Rau.