Can a person who is not the primary applicant for a visa that has been refused, and is not even aware that the visa application has been made on their behalf, be subject to a bar under section 48 of the Act when they make a further visa application?

The Full Court considered this question in the case of Minister v Immigration and Border Protection v Kim, (2014) FCAFC 47 (24 April 2014). The decision in the case is important for RMAs who are advising visa applicants who were previously “secondary applicants” on a visa application that was refused.

The factual background of this case was that the visa applicant, Ms Kim, had first arrived in Australia from South Korea when she was a small child, less than 3 years old. When she was 5 years old (in 2008), her father lodged an application for an “Other Family (Residence) (subclass 835)” visa. Ms Kim was included as a member of her father’s family unit in this application. Of course, Ms Kim was not aware that she had been included in this visa application, and the “blocks” on the application form above her name had been signed on her behalf by her father.  This application was refused by the Department.  Nonetheless, Ms Kim apparently remained “onshore” with the status of an unlawful non-citizen.

The occupational ceilings for the skilled migration programme for the 2015-16 financial year were announced earlier this month with the quota for several occupations notably accountants, air-conditioning/refrigeration mechanics, engineering managers, electronic Trades Workers, Auditors and nurses falling sharply.

Rising sharply in numbers is the demand for Early Childhood Teachers, Medical Laboratory Scientists and several trades occupations including Metal Fitters, Wall/Floor Tilers, Plumbers and Painting Trade workers.

Registered nurses remain the most wanted occupation in the Australian workforce if you go by the occupational ceiling numbers. The occupational ceiling for registered nurses however dropped by almost 8% or 1170 places in the latest skilled migration programme.

Panelbeaters and Cabinetmakers made a debut with 1134 and 1530 places respectively.

Occupational ceilings limit how many invitations to apply are issued by the Department of Immigration each year for general skilled migration for a particular occupation. This is to ensure that the migration program is not dominated by a small number of occupations. Generally, applicants with an Expression of Interest in occupational groups which have reached their ceiling will not be invited to apply for a visa but however will remain in the EOI pool for two years from the date of submission, or until they are selected to apply when a fresh quota is issued.

The DIBP generally distributes grants over the programmeto to "ensure availability of invitations across the programme year" particularly for occupations for where applications are high in demand. It has listed the following occupations as being in high demand:

• ICT Business and System Analysts
• Software and Applications Programmers
• Accountants.

Occupational ceilings do not apply to Employer Sponsored or Business Innovation and Investment visa subclasses and have now also been removed for State or Territory Nominated, visa subclasses. Effectively this means that states can nominate occupations for Skilled Nominated Subclass 190 and Skilled Regional Subclass 489 visas even if the ceiling has been reached.

Businesses in the Northern Territory have slammed the Federal Government for unnecessary delays and red tape which they say is affecting the ability of businesses to get the skilled foreign workers they urgently need.

In February 2014, the Federal Government announced an independent review of the 457 visa worker program and then in May relaxed the English language competency requirement for foreign workers.

In August the Commonwealth announced a brand new initiative - the Designated Area Migration Agreements (DAMAs) sub class of 457 visas which would apply only in the NT and for certain occupations such as truck drivers, childcare workers, and hospitality staff.

It was hoped foreign workers would be more willing to move to Darwin.

According to an ABC report, months later 17 NT businesses have been endorsed by the NT Department of Business to apply for DAMAs. But only three DAMAs have been granted.

The following email has been received by Migration Alliance:

The online lodgement system of the Migration and Refugee Division of the Administrative Appeals Tribunal is available 24 hours a day from any computer that has an internet connection.

The Full Court of the Federal Court has upheld a decision by the Minister not to revoke the cancellation of a “Return (Residence)" visa that was held by the national president of the Rebels Motorcycle Club. 

The Full Court made this ruling in Vella v Minister for Immigration and Border Protection, (2015) FCAFC 53 (21 April 2015).

The significance of this decision is that it clarifies whether principles of “natural justice” require the Minister to disclose information that has been provided under section 503A of the Act by a “gazetted agency” (in other words, a law enforcement or intelligence agency) on condition that the information be treated as “confidential” and that has been relied upon as the basis of a Ministerial decision not to revoke a visa cancellation.