Australian Immigration Daily News

It is really amazing, astounding and astonishing how long certain issues can continue to “linger”, even after an amendment has been made to the Migration Act.

A recent case from the Federal Circuit Court, Kaur v Minister for Immigration & Anor (2017) FCCA 3369 (12 December 2017) which just “surfaced” on Austlii provides a prime example!

Readers may recall that the Migration Legislation Amendment (Student Visas) Act 2012, which came into force on 12 December 2012, amended the Education Services for Overseas Students Act 2000 (“ESOS”)to end the “automatic” cancellation of student visas under section 137J of the Migration Act.

What do you do next when your client wishes to sponsor a visa holder on the new TSS visa, however they don't meet one or a number of nomination or visa requirements under a SBS? Now with the new TSS stream coming in mid-March it gets even messier. 

That's when you turn your attention to the possible option of a TSS compliant Labour Agreement. 

This OMARA approved activity (WK261) is an exclusive 4 hour CPD/CLE event in our Labour Agreement Workshop Series presented by Alan Chanesman, one of Australia's most recognised and distinguished migration law experts and educators in this very specialised field. 

In yesterday’s article, concerning the decision of the Federal Court in Ogama v Minister for Immigration and Border Protection, I noted that it surely appears that the Department has an ongoing “cottage industry” involving the cancellation of visas on character grounds.

Well, when you read the case reports from the Federal Courts on Austlii, it looks like there is more than a “cottage industry”! The visa cancellations on character grounds are being churned out by the Department at a rapid rate, it seems at times as quickly as Apple is churning out iPhones!

And, as the recent case of Burgess  v Minister for Immigration and Border Protection (2018)FCA 69 (12 February 2018)  illustrates, it seems that a particular target of the visa cancellation “compliance programme” is visa holders who have had involvement with “outlaw motorcycle gangs”.

There are  some cases that sure have “wacky facts”, and also have unexpected outcomes!

Here’s a case in point:  the decision of Justice Logan in Ogawa v Minister for Immigration and Border Protection (2018) FCA 62.

Let’s start here: how would you rate the chances of a person avoiding visa refusal if she had the following background and history, as the visa applicant did in Ogawa:

Is section 501(3)(A) of the Migration Act unconstitutional? 

Recall: this section of the Act makes if mandatory for the Minister to cancel the visa of a person who 1) does not pass the character test by reason of having a “substantial criminal record”, as defined under section 501(a); or 2) has committed sexually based offences involving a child; and the person is serving a sentence of imprisonment, on a full time basis, in a custodial institution for an offence against a law of the Commonwealth, or of a State or Territory. 

Is this section of the Act unconstitutional because it imposes an additional “punishment” on the visa holder, and therefore infringes against Chapter III of the Australian Constitution, which vests exclusive power on the judiciary to impose punishment on persons as the result of criminal conduct