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.

No one likes waiting, least of all to get paid. ASC Migration use Secured Signing to turn around agreements more quickly to get paid sooner. 

Given a choice between one marshmallow now, or 2 marshmallows in 15 minutes, 2 out of 3 kids take the sugar hit straight away. It seems an aversion to waiting is hard wired into most of us. But when it comes to running a small business, getting paid earlier is also good business sense. So it is not surprising that when John Kavanagh of ASC Migration found a business tool that allowed him to get paid 2-3 weeks more quickly, he grabbed it with both hands.

ASC Migration is a registered migration agent under the Federal Government’s Migration Agents Registration Authority. Part of the Code of Conduct for registered agents is to establish a written acceptance from their client before starting work and charging for that work. It typically took 2-3 weeks to turnaround a written agreement sent by post and usually required a lot of follow up to ensure the paperwork didn't get lost in the top drawer.

A Melbourne business operator has been fined more than $228,000 after admitting she underpaid a vulnerable migrant employee because she thinks Australia’s minimum pay rates are “just crazy”. The Federal Circuit Court has imposed a penalty of $35,496 against businesswoman Na Xu after she admitted responsibility for underpaying the employee $19,567 over a period of just eight months. 

Xu’s travel services company Grandcity (GW) Travel & Tour Pty Ltd, which operates the Grandcity Tours travel agency at Glen Waverley, was fined a further $192,840. The penalties are the result of an investigation and legal action by the Fair Work Ombudsman.

An FWO report said, its inspectors discovered the underpayment after receiving a request for assistance from a 24-year-old migrant from China.

The employee, who spoke limited English, was paid flat hourly rates of between $9 and $11 to work a casual travel consultant between January and September, 2013.

Under the General Retail Industry Award, the employee should have been paid more than $21 for normal hours, plus penalty rates for weekend and public holiday work. She was paid less than half of her total entitlements.