Australian Immigration Daily News

What happens when a client thinks that her or his migration agent has submitted an application for one type of visa, when in reality the migration agent has submitted an application for an entirely different type of visa, and the client is not eligible for the visa that has been applied for?  If the application for the visa is refused, and the refusal is then affirmed by the Migration Review Tribunal, can it be said that the review proceedings before the MRT have been “vitiated” so that the decision by the Tribunal should be “overturned”?

These questions were considered by the Federal Circuit Court of Australia in a case that was decided toward the end of last year, Singh v Minister for Immigration & Anor, (2014) FCCA 2867 (16 December 2014). The Court answered them by quoting from an earlier judgment of the Full Court of the Federal Court, Minister for Immigration and Multicultural Affairs v SZFDE, (2006), in which Justice French made the following observations:

“There are sound policy reasons why a person whose conduct before an administrative tribunal has been affected to her or her detriment, by bad or negligent advice, should not be heard to complain that the detriment was unfair in any sense that would vitiate the decision made”.

The operator of a number of restaurants and cafes in Darwin has been ordered to pay civil penalties of $175,400 for committing multiple breaches of its obligations under the 457 program. These fines were imposed  by Justice Mansfield of the Federal Court of Australia in the case of Minister for Immigration and Border Protection v Choong Enterprises Pty Ltd (2015) FCA 390 (27 April 2015).  

Although it does not appear that it is at all common for the Department to take enforcement proceedings against a 457 sponsor (in fact, my review of the Austlii database did not reveal any other cases where such action has been taken!) the Choong  case should nonetheless serve as a reminder to sponsors concerning the importance of complying with their sponsorship obligations.  The case also illustrates the serious financial consequences that can result if a sponsor does not comply.

Further, the result in this case demonstrates that RMAs can very meaningfully assist sponsoring employers by making sure that they are aware of the duties that are imposed on them  under the migration legislation: an RMA’s work is not necessarily completed once a 457 visa has been granted!

It will be well-known to RMAs that a person who fails to lodge an application for a new substantive visa with the Department before an existing visa has expired may encounter major difficulties in obtaining the new visa. 

These difficulties may be posed by the need to comply with the criteria of Schedule 3 of the Migration Regulations.  For example, Clause 3004 of Schedule 3 provides that if the applicant has ceased to hold a substantive visa (or criminal justice visa) at any time after 1 September 1994, the applicant must satisfy the Department , among other things, that she or he does not currently hold a substantive visa due to factors beyond her/his control; that there are compelling reasons for the grant of the new visa; and that the applicant has “complied substantially” with the conditions that applied to the last substantive visa that was held.

A decision of the Full Court of the Federal Court of Australia has clarified the meaning of clause 3004, and has explained the nature and extent of the “compliance” with the conditions of a person’s last substantive visa that must be achieved in order to satisfy clause 3004. This decision was made in the case of Montero v Minister for Immigration and Border Protection, (2014) FCAFC 170 (12 December 2014).

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 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.