Australian Immigration Daily News

What is the scope of the Full Court’s decision in the Waensila case?

Remember? Waensila  was the case where the Full Court overturned the Federal Court’s previous decision in the case of Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs that held that the only matters which can be taken into consideration when the Department/Tribunal are deciding whether to “waive” Schedule 3  criteria are matters that were in existence at or before the time of the application.  

In Waensila,  the Full Court held that regulation 820.211(2)(d) (ii), which permits the “waiver” of Schedule 3 where there are compelling reasons for not applying the Schedule 3  criteria, is not itself a “time of application” criterion. Accordingly, the Full Court decided in Waensila that when it considers whether to exercise the discretion to waive Schedule 3,  the Tribunal is not limited only to circumstances in existence at the time of the visa application.  Rather, under Waensila the Tribunal is at liberty to consider any matter that is in existence at the time that the decision whether to waive Schedule 3  is made.

Dear Migration Alliance Members

Thank you for the opportunity to serve you all on the board of Migration Alliance Inc.

I have decided to resign from the position of Secretary, immediately.

Another day, another decision that illustrates the obstacles to getting a “waiver” of Schedule 3 criteria!

The decision, Awad v Minister for Immigration & Anor (2017) FCCA 452, was handed down by Judge Driver on 10 May 2017.

This was the story: the applicant was a Lebanese national who originally arrived in Australia in February 2010 on a student visa. That visa ceased on 15 March 20102. He then applied for a further student visa, with that application also being made on 15 March 2012, but that second student visa application was refused. He then applied for a partner visa in July 2013, but in December 2014, the Department deemed that that application was “invalid” (why it took the Department approximately a year and a half to figure out that this application was “invalid” is not explained in the Court’s decision, but “whatever”.  Finally, the applicant re-applied for a partner visa in December 2014. It was that application which was the subject of the proceedings before the Federal Circuit Court.

Recruitment is now underway for a new Chief Executive Officer at the Migration Institute of Australia.  The previous CEO was Maurene Horder, who suddenly departed in September 2013, and was replaced by an Acting CEO, Kevin Lane. 

Can you think of anyone in our profession, or any other profession that you think might be suitable? 

Since 1^st July 2016 last year, the federal government, with the New South Wales and Victoria state governments, have cracked down on foreign non-residents buying Australian property, who are not Australian citizens, permanent residents living in Australia or eligible New Zealand Citizens living in Australia. New tightened up Foreign Investment Review Board (FIRB) approval applications, processes and fee structures for foreign non-residents wishing to buy real estate in Australia are now in place. Foreign non-residents not complying with the new regime structure, are now served with mandatory forced sale notices, with also tax implications.

From an immigration agent’s prospective, a client could be coming to them, to obtain permanent residence in Australia, to avoid the hurdles and tax burdens of deemed as a foreign non-resident. The new foreign non-resident regime do not apply to Eligible New Zealand Citizens (ENZCs), who are deemed as permanent residents in Australia, for tax purposes and to avoid the foreign non-resident land taxes, who have been residing in Australia, for more than 200 days.

From an immigration agent’s prospective, a foreign non-resident wish to buy property in Australia, now can only buy from a developer (off the plan / new property) who has pre Foreign Investment Review Board (FIRB) approval to sell to foreign non-residents, or the foreign non-resident themselves must obtained Foreign Investment Review Board (FIRB) approval.