Under the Migration Amendment (Character and General Visa Cancellation) Act 2014, the Minister for the Department of Immigration and Border Protection now has a mandatory duty to cancel the visa of a person who fails to satisfy the “character test” by reason of having a substantial criminal record (defined to mean, among other things, having been sentenced to a term of imprisonment of 12 months or more).  This amendment came into force on 11 December 2014 and is now codified at section 501(3A) of the Migration Act.

Procedurally, decisions made by a delegate of the Minister to cancel a visa on character grounds can be challenged by means of an appeal to the Administrative Appeals Tribunal.  However, even if a visa holder is successful in the AAT, the Minister retains power (under section 501A of the Act) to personally substitute his or her own decision for a decision of the AAT and to direct once again that the visa be cancelled. The prerequisites for the exercise of this power are that the Minister must have afforded “natural justice” to the visa holder and must be satisfied both that the visa holder does not pass the “character test” and that it is “in the national interest” of Australia that the visa be cancelled.

The Minister’s powers to substitute a different decision from the one made by the AAT were recently tested in a case that was brought before the Federal Court of Australia, Jione v Minister for Immigration and Border Protection (2015) FCA 144 (3 March 2015). The full text of the decision can be found at the following link:

Here is the media release from the office of the Assistant Minister for Immigration and Border Protection, Senator the Hon Michaelia Cash on the sc457 reforms:

The Government will act on recommendations of a recent independent review of the 457 visa programme to strengthen integrity, ensure that Australian workers have priority and support employers with genuine skill shortages.

The Assistant Minister for Immigration and Border Protection, Senator the Hon Michaelia Cash, commissioned the review in 2014. The panel was tasked with examining compliance within the 457 programme by sponsors of overseas workers to ensure that the scheme was being used as intended – to address skill shortages which cannot be met from the Australian labour market.

Please find today's response from the Office of the MARA regarding the monitoring of RMAs:

"Thank you for your email of 13 March 2015 to the Office of the Hon Michaelia Cash concerning monitoring activities being conducted by the Office of the Migration Agents Registration Authority (OMARA).  I have been requested to reply on her behalf.

As you are aware, the OMARA undertakes monitoring as part of its consumer protection mandate and in its role as regulator of professional standards for registered migration agents. Monitoring the conduct of registered migration agents is one of the OMARA’s functions under S.316 of the Migration Act 1958 and S.317 provides the authority to do all things necessarily or conveniently done for, or in connection with, the performance of its functions.

Hugh Ford, Immigration Solicitor, kicks off as a CPD presenter in 2015 with his debut in Canberra on 10 April 2015.

Legal Training Australia has managed to secure Hugh Ford as one of their speaking talents and is very excited to have him on board as part of the team.  Hugh joins Christopher Levingston and Michael Jeremy as one of LTA's permanent  CPD speakers.   Mr Ford is currently planning to take trips to other cities across Australia to educate RMAs.

Hugh Ford attended Sydney Grammar. He then attended the Australian National University where he completed a degree in Arts/Law. He then completed a Graduate Diploma in Legal Studies and Public Law at the ANU. More recently, Mr Ford completed a Masters Degree in Law at the University of North Queensland.

Mr Ford also worked for 16 years in the Department of Immigration in the Litigation, Legal Policy and Privacy Area.

Mr Ford is a keen runner. He is also a DJ on the weekends as a hobby.

The government is expected to announce today that it is adopting most of the recommendations of last year's independent review of the sc457 visa program, with particular emphasis on prosecuting employers for breaching sponsorship obligations, according to The Australian.

The Liberal government is tightening checks on the sc457 temporary worker visa with the introduction of various measures including the introduction of penalties and the sharing of data with the Australian Taxation Office, to ensure overseas workers receive their nominated salary and are not undercutting Australian jobs, reports the Australian

 “We will proactively prosecute and name and shame offenders exploiting overseas workers and misusing the program,’’ the Assistant Minister for Immigration and Border Protection, Michaelia Cash, said.

Senator Cash said the economic and productivity benefits of a well-managed overseas worker program are significant, yet understated, and blamed the former Labour government for mismanaging the program and causing community confidence in its value and integrity to be undermined.

Aiming to restore confidence in the program, the recommendations the government is adopting will include increased focus on targeting employers who seek to misuse the program, introducing greater transparency around the department’s sanctions processes and the sharing of information between key agencies.

The Australian reports that Senator Cash will confirm today that the government will not remove the current labour-market testing arrangements that require businesses to test ­employment markets first to find domestic skilled workers before turning to the 457 visa program.