Is it possible to get an injunction to stop the Department from deporting a client whose student visa has been cancelled? 

If the recent decision of Judge Manousaridis of the Federal Circuit Court in the case of Calava v Minister for Immigration (2015) FCCA 2525 (16 September 2015) is any indication, the answer to this question is that: “It will very likely be a hard slog to get an injunction, and your chances are pretty bleak!” 

The case illustrates that this is so even when the visa holder’s visa is cancelled by the Department at the airport when the visa holder is seeking to re-enter Australia, and the visa is cancelled based on a short interview that takes place at the airport only a few minutes after the visa holder is stopped at "customs".

Recent statistics indicate that some 87% of student visa applications are not made through registered migration agents. This could very well mean that unregistered education brokers in the currently unregulated education broker industry are lodging a significant number of applications.

It could be a key reason why this year there was a 30% rise in student visa cancellations. Typically, the department of immigration cancels between 8,000 and 9,000 student visas – this year there were 11,000 student visa cancellations.

The visas of 1793 Chinese students were cancelled making them the highest risk group. With 1160 visa cancellations, South Korean students were next, followed in number by students from India, Vietnam and Thailand.

Low-quality education providers, unscrupulous education agents, and the overly complex current student visa framework have been blamed for these large number of visa cancellations.

Only about 13% of 60,000 student visa applications were lodged by migration agents registered with the office of the Migration Agents Registration Authority (OMARA) according to recent figures released by the authority in its latest Migration Agent Activity Report.

Over 80 per cent of foreign language advertisements are openly offering wages well below award rates with many of these jobs blatantly advertised as "black jobs", a Fairfax Media investigation in conjunction with Monash University has revealed.

The study of 1071 job advertisements aimed at temporary foreign workers, largely from China, Malaysia, Hong Kong and Taiwan, show the vast majority offer work either below the minimum wage or the award. Most of the jobs appeared temporary or casual and did not include penalties and loadings.

The study analysed websites like http://www.backpackers.com.tw/ , yeeyi.com and some foreign language Facebook pages.

“…hundreds of thousands of workers across the economy, in food courts, cafes, factories, building sites, farms, hairdressers and retail [are] being exploited on low wages and believing they have no power to ask for their rights,” noted the report published in the Sydney Morning Herald.

The study found that it was common for jobs to be openly advertised at $10 to $13 an hour, significantly below Australia's legal minimum wage of $17.29 an hour. It also noted that many job ads did not reveal pay rates and could very well be even lower – as low as $4 an hour.

Members of the Migration Alliance are encouraged to nominate for positions to the board of our sister organization, the Migration Institute of Australia on MA’s “United Profession” ticket in the upcoming elections for MIA’s Board of Directors. Nominations for the MIA Board are open until 6 October 2015. 

The form that can be used to nominate for the Board can be found at the following link:  

http://www.mia.org.au/documents/item/749 

“…….the Tribunal must act in a way that is fair and just” – section 357A(3) of the Migration Act. 

Section 357A is not simply an abstract, idealistic statement of the way that the Administrative Appeals Tribunal is supposed to conduct merit reviews of Departmental decisions.  It is actually “prescriptive” of the Tribunal’s duties and obligations. 

But I would be willing to venture that if a “poll” were to be taken amongst RMAs, the results of the “ballot” would show that there are occasions where the Tribunal falls short of this requirement, and determines a matter in a way that is unfair and unjust.