The familiar expression that “timing in life is everything” is used so frequently because it is confirmed by our every-day experience.  But who would think that the truth of this saying would be demonstrated yet again by a decision of the Federal Circuit Court that is “buried” on the Austlii Website? Yet indeed, surprising as this may sound, a recent case, Isanan v Minister for Immigration & Anor, (2015) FCCA 1397 (29 May 2015) does provide another illustration of how critical timing can be! 

The Isanan case involved the refusal of a Permanent Partner Visa.  The applicant, Ms Isanan, was a Filipino citizen who held a Provisional Partner Visa (subclass 309). Her husband and sponsor died suddenly on the same day that she arrived in Australia. Ms Isanan sought to qualify for a Permanent Partner Visa (subclass 100) on the basis of clause 100.221(3)(b) of Schedule 2 of the Migration Regulations.  

 As will be well known to RMAs, one of the usual requirements for obtaining a Permanent Partner Visa is that at least 2 years must have passed since the application for the Provisional Partner Visa was made (see regulation 100.221(2)(c)). However, clause 100.221(3)(b) provides an exception to this “normal rule”.  Under the clause, an applicant can be eligible for the grant of a Permanent Partner Visa if the sponsoring partner dies after the applicant first enters Australia as the holder of a Provisional Partner visa. 

After apparently 25 years of lobbying the government for a national registration scheme, Engineers Australia (EA) has decided that it will move to ‘self-regulation’ with its own scheme.

Although the federal government sees no need for such national regulation, the Australian Financial Review reports that the move by the EA is “to safeguard the industry against a wave of temporary work visas being issued to fill employment gaps.”

According to EA, currently 14 different Acts and subordinate legislation regulate some engineering services in most states and territories.  Where regulation exists, it is rarely specific to engineering services. Queensland is the only state that requires all engineers to be registered if offering or providing engineering services, and Western Australia is considering introducing similar requirements.  In other states and territories engineers generally operate under a self-regulatory system.

The peak body, which represents about 100,000 engineers, has been urging state and federal governments for the past 25 years to adopt a national registration scheme, which would ensure high professional standards are maintained in the sector.

Engineers Australia (EA) chief executive Stephen Durkin told the AFR that while most government representatives have seen value of a national registration scheme for engineers, the general response has been "but buildings aren't falling down'.

The Federal Circuit Court has held that it is jurisdictional error for the Migration Review Tribunal to accept an opinion of the Medical Officer of the Commonwealth that is not supported by the evidence. The Court has also ruled that it is jurisdictional error for the MRT to refuse to grant an adjournment of proceedings in order to enable the review applicant to obtain information to refute the unsubstantiated or incorrect findings of the Medical Officer.

These findings were handed down in the case of Haque & Ors v Minister for Immigration & Anor, (2015) FCCA 1765 (2 July 2015). The decision is significant for all RMAs who are assisting applicants with appeals to the MRT following the Department’s refusal of a visa due to alleged failure to satisfy the “health criterion” of PIC 4005.

The background of this case was that the “primary applicant” was a citizen of Hungary who was seeking a subclass 886 Skilled Sponsored visa.  The primary applicant had two children, one of whom was a 12-year old girl who was suffering from “autistic spectrum disorder”.  

A self-represented applicant’s appeals to the MRT for the review of a partner visa decision, has failed with the member indicating that a child may have made a difference, but not a pregnancy. A delegate of the minister had refused the visa on the basis that the applicant failed to satisfy criterion 3001. On review, the Tribunal was not convinced that there were ‘compelling reasons’ to waive the requirement.

An applicant who is not the holder of a substantive visa at the time of application must meet certain criteria in Schedule 3 of the Migration Regulations unless the Minister is satisfied that there are compelling reasons for not applying the criteria: cl.820.211(2)(d).

In this case, criterion 3001 was the main issue. In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the ‘relevant day’ which is the date of the delegate’s decision. The delegate’s decision to refuse the application stated that the applicant came to Australia on a student visa and that visa was cancelled on 11 December 2012. On 11 February 2013 she lodged her partner visa application. Hence she did not satisfy criterion 3001 as the 28 days had lapsed.

Given this, the Tribunal was required to consider whether there were compelling reasons for not applying the criteria. The applicant argued as follows:

“We really hope MRT could consider about our true relationship and expecting baby's situation. We are hoping deeply MRT could give us a significant result due to the expensive visa fee we try to save for new baby as well. Because we heard the partner visa fee will go up to over $6000 from 1st July 2015. We want to be good parents like all parents in this world which give our baby a better life. We want to try our best to welcome the baby with two parents together.”

The Tribunal was not convinced and affirmed the delegate’s decision for the following reasons:

Under the proposed changes to Australian citizenship laws, children of illegal migrants could become stateless, National Children’s Commissioner Megan Mitchell has told The Australian.

Currently, children born in Australia are automatically entitled to Australian citizenship on their 10th birthday if they have lived here for all 10 years — even if their parents arrived or lived in Australia illegally. But under planned changes to the Citizenship Act, children will lose the right to citizenship if their parents were “unlawful non-citizens’’ at the time of birth. Children will also miss out on citizenship if they were “unlawful non-citizens’’ at any time before their 10th birthday, or if they left Australia during that time without a return visa.

“Through no fault of their own, they would find themselves growing up in Australia but potentially not being able to stay in Australia, even though they don’t know anywhere else, and their friends and schooling are here,’’ Ms Mitchell told The Australian yesterday.

Megan Mitchell is Australia’s first dedicated National Children’s Commissioner. The National Children's Commissioner’s office was setup in 2013 to protect children’s rights by promoting public discussion and awareness of issues affecting children, conducting research and education programs and consulting directly with children and representative organisations. The role also examines relevant existing and proposed Commonwealth legislation to determine if they recognise and protect children's human rights in Australia.

The Coalition Government says that changes are designed to stop asylum seekers and illegal immigrants using children as ­“anchors’’ to gain citizenship and sponsor other family members to live in Australia.

But Ms Mitchell warned the legislative amendments would punish children for their parents’ actions.