Australian Immigration Daily News

How can an applicant satisfy the criteria for the grant of a “Temporary Graduate” (Subclass 485) visa? 

More specifically, how can an applicant who seeks a visa under the “Graduate Work Stream” meet the criterion of clause 485.222 of Schedule 2 of the Migration Regulations that they demonstrate that the degree, diploma or trade qualification that is used to satisfy the Australian study requirement be “closely related” to the applicant’s nominated skilled occupation? 

This is a question that is of obvious importance to students who wish to remain in Australia to work for a period of time after they have completed their studies.  

Is there anything that you can do to help a student whose visa has expired get another student visa? 

To paraphrase Barrack Obama’s famous campaign slogan from 2008: “Yes you can!” 

However, there is a major caveat that RMAs must be aware of, and that was made clear by a decision of the Full Court in December 2014 (Sapkota v Minister for Immigration and Border Protection (2014) FCAFC 160 (1 December 2014): You can only do it once! A student who allows her/his visa to expire a second time and then wants to seek a further student visa is in what the first President Bush (George H.W. Bush, not to be confused with his son, “W!) would have described as “deep doo-doo”.  The decision in Sapkota makes it clear that a student who has allowed their visa to expire can have only “one bite of the apple” under the migration legislation.  If they let their visa expire a second time, they are literally “out of luck” – at that stage, the only remedy is to apply for the further student visa from offshore. 

Should a doctor who has been convicted of sexually abusing a 19 year old female patient while working in the public health service have his Australian visa cancelled on character grounds? 

That question was presented to the Full Court in the case of Durani v Minister for Immigration and Border Protection (2014) that was decided in July of last year.

One might hazard to guess that if such a criminal history – which, by the way, resulted in a sentence of imprisonment of 2 years and 4 months – were viewed in isolation, apart from any other circumstance of the case - that there is literally no one who would not wholeheartedly agree that a person who has committed such an offence richly deserves to have his entitlement to remain in Australia cancelled. 

If you had to guess, what chance do you think that someone who has been convicted of “manslaughter by criminal negligence” and who has been sentenced to 8 years imprisonment would have to persuade the Full Court that the cancellation of his visa by a delegate of the Minister should be overturned? 

And suppose you knew that these were the underlying circumstances of the criminal offense that prompted the decision to cancel the visa:  The victim of the offence was the visa holder’s wife. During an altercation, the visa holder pushed her and she fell and hit her head. The visa holder did not call for help or medical assistance, but instead dragged his wife’s unconscious or semi-conscious body across a road and left her lying out of sight near a waterway. The visa holder’s wife was later found dead, submerged in the water.  This incident was not the first time that the visa holder had assaulted his wife. 

Is there anyone out there who would venture to say that the prospects of fending off a visa cancellation decision against such a factual background would be any better than: “zero”? 

A huge amount of media attention over the past year has focused on the cancellation of New Zealanders’ visas on character grounds. 

And if that has been a “hot topic” here in Australia, we understand that it is an even “hotter topic” on the other side of the Tasman. 

It is therefore timely and worthwhile to take a look at another case that came before the Full Court earlier this year involving such a visa cancellation, Fraser v Minister for Immigration and Border Protection (2015) FCAFC 48 (2 April 2015).