Australian Immigration Daily News

Just as it is true that every applicant for an Australian visa is subject to the “character test” under section 501 of the Migration Act, it is equally true that applicants for Australian citizenship must pass a second “character test” under the Australian Citizenship Act 2007.  The character tests under these laws are not the same: while section 501 of the Migration Act describes with a high level of specificity the types of issues that will disqualify a visa applicant (for example, having a “substantial” criminal record), the Citizenship Act provides only in general terms that an applicant must be a person of “good character” at the time that a decision is made on the application.

Unlike the Migration Act, the Citizenship Act does not include further guidance concerning the meaning of the term “good character”.  The meaning of “good character” has, however, been discussed in decisions of the Federal Court of Australia, including the case of Irving v Minister of State for Immigration, Local Government and Ethnic Affairs  (1996) FCA 663; (1996) 68 FCR 422. In the Irving case, the Court held that “good character” is to be understood in the “ordinary sense” of these words, and is to be interpreted to mean “the enduring moral qualities of a person”.

The “character test” of the Citizenship Act  proved fatal to an application for citizenship in a case that was decided by the Administrative Appeals Tribunal  earlier this month, FBMR and Minister for Immigration and Border Protection, (2015) AATA 116 (2 March 2015).

Toward the end of last year, in December 2014, the Federal Circuit Court (per Judge Nicholls) handed down an important decision concerning the scope of the MRT’s jurisdiction to review decisions of the Department concerning applications for 457 visas.  The Court’s judgment was delivered in the case of Minister for Immigration v Lee & Ors (2014) FCCA 2881 (10 December 2014) and can be reviewed at the following link:

http://www.austlii.edu.au/au/cases/cth/FCCA/2014/2881.html

It is essential that all RMAs consider the implications of this decision when advising their clients whether to proceed with an appeal in the MRT against the refusal of a 457 application.

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:

All visas that are issued for “temporary skilled employment” in Australia, familiarly known as “457 visas” include a Condition 8107 which provides that the holder of such a visa must not cease employment for a period of more than 90 consecutive days. A breach of this condition can lead to cancellation of the visa under section 116 of the Migration Act.  And the effect of the cancellation of the primary visa holder’s 457 visa can result in the consequent cancellation of the visa entitlements of members of the visa holder’s family unit (spouse/partner and children) by “operation of law” under section 140 of the Act.

A case that was recently heard before the Migration Review Tribunal – 1417329 (2015) MRTA 150 – (decided on 4 February 2015) illustrates how the cancellation power may be exercised by the Department. The decision also provides some guidance on the kinds of evidence that may be put forward to avoid the cancellation on “discretionary grounds” (either in recent to a notice of intended cancellation that has been issued by the Department or in the context of an appeal against visa cancellation taken to the MRT).

The circumstances of the case were that the visa holder, a citizen of Bangladesh, had been granted a 457 visa to work in Australia as an accountant. Her husband and two young children accompanied her to Australia. The visa holder began work with her “standard business sponsor” in January 2013. However, the sponsoring company went into liquidation in October 2013, and, consequently, the visa holder stopped working for the sponsor. She did not immediately begin looking for new employment with a different sponsor, as the owner of her original sponsoring employer had assured her that he was planning to establish a new business and that he would re-employ her in that business. 

A recent decision of the Migration Review Tribunal provides a powerful example of why it is so vital that non-citizens who wish to remain in Australia keep their visa status current at all times.

The case, 1410214 (2015) MRTA 181, involved an appeal against the Department’s refusal of a Partner Visa application (subclass 820).  The visa applicant had originally come to Australia from India in June 2007 on a student visa, which ceased in January 2008. The applicant then obtained a further student visa which ceased in June 2009. Although he was located by the Department in November 2011 and was given a bridging visa and an opportunity to apply for a further substantive visa by December 2011, he did not submit a further application until nearly two years later, in September 2013. At that time, while still on-shore in Australia, he sought a Partner Visa which was sponsored by his wife, who he had married in December 2011. The marriage took place prior to the deadline given to the applicant by the Department for lodging a further substantive visa. 

The obstacle that the applicant faced to his application was that he had failed to comply with the criteria of Schedule 3 of the Migration Regulations 1994. Furthermore, the applicant was not able to persuade the Department or the MRT that there were “compelling reasons” for not applying these criteria to his case.  The applicant’s failure to meet the Schedule 3 criteria, or to show that he was entitled to a waiver of the criteria, ultimately proved fatal to his on-shore Partner Visa application.