The Federal Court recently held that the Migration Review Tribunal  failed in procedural fairness when it did not follow up at all on its hearing invitation to an applicant when there was no response and no appearance by the appellant. The courts held that it was a failure of the Tribunal to fulfil its obligations under s.360

Kaur v MIBP [2014] FCA 915 was an appeal from a judgment of the Federal Circuit Court dismissing an application for judicial review of a decision of the Migration Review Tribunal (the tribunal). The tribunal had affirmed the delegate’s decision not to grant Kaur’s Student (Temporary) (Class TU) Subclass 572 visas on the basis that there was insufficient evidence of ‘financial capacity’ to undertake studies in Australia.

In this case there were two hearings scheduled. Kaur and the tribunal maintained a significant number of communications over a period of 5 months after the first hearing. The tribunal posted an invitation to Kaur inviting her to attend a further hearing. The hearing invitation was returned to the tribunal marked ‘RTS’. Kaur did not respond to the hearing invitation or attend the further hearing. The tribunal then proceeded to affirm the decision under review.

The Federal Circuit Court, in the initial appeal, concluded there was no jurisdictional error, finding that the tribunal was not obliged to have followed up the non-response to the second hearing invitation and the evidence did not suggest that the tribunal’s exercise of the discretion was ‘capricious’

However, on further appeal to the Federal Court, it was held that the tribunal’s exercise of power under s.362B(1) of the Migration Act (Cth) 1958 was legally unreasonable and therefore exceeded its jurisdiction. Given the history of contact between the tribunal and the appellant, including proactive contact from the tribunal, it was inexplicable why there was no attempt to contact the appellant. The tribunal ought to have realised her non-response to the hearing invitation and failure to attend the hearing was, given her past behaviour, out of character.

In a bid to cool the rapid growth in house prices and deal with the claim that “The Foreign Investment Review Board (FIRB) is hopeless” in dealing with foreign buyers, the federal government is considering a series of measures including visa checks and heavy fines, to deter foreign investment in the housing market, reports The Australian.

A parliamentary committee reviewing foreign investments in the Australian property market is expected to deliver a report that will be highly critical of the performance of the FIRB, the gatekeepers entrusted with the management of the flow of overseas investments into Australia.

Generally, foreigners are barred from buying established homes but are allowed to own them while in Australia, provided they sell them within three months of departure.

The Australian reports that the FIRB has been a sleep at the wheel in its enforcement responsibilities in this respect noting that, “[The FIRB] has not forced a single ­investor to sell an illegally ­acquired home since 2008, during which time foreigners have bought tens of thousands of established homes.”

It is expected that the committee will propose:

• a ban on marketing real estate developments solely to overseas investors;
• a nationwide land-transfer database to track the ­nationalities of offshore buyers;
• data-sharing arrangement that will require DIBP to automatically advise the FIRB whenever a property owner’s visa expires;
• impose fees for foreign investors seeking FIRB approval to purchase property;
• impose fines for a breach of the FIRB rules; and
• tighten regulation of offshore investment in real estate.

Australian house prices have risen dramatically in recent years, with the cities of Sydney and Melbourne leading the gains. Record-low interest rates have fed speculative residential-property buying among Australians themselves, but anecdotal evidence points to the growing participation of foreign buyers—especially from China.

The Office of the MARA annual report for the 2013-2014 year has been published.

I saw it on a Facebook post today from the DIBP.  The DIBP was advertising the Office of the MARA.  It reads as follows:

As at 30 June 2014, there were 5212 migration agents registered with the Office of the Migration Agents Registration Authority (OMARA). The authority decides who can register as a migration agent, monitors the conduct of agents, and manages complaints about them.

A new bill passed by the Senate on Wednesday has dramatically expanded the powers of immigration Minister Scott Morrison by granting the minister broad new powers to cancel or refuse visas to non-citizens who commit crimes in Australia.

The changes will effectively lower the threshold for the cancellation of temporary visas for non-citizens.A person can now fail the character test if there's a 'reasonable suspicion' - not a conviction - for involvement in crime gangs, people smuggling, genocide, war crimes, torture or slavery.Anyone who has one or multiple jail sentences adding up to 12 months - down from two years - or has an adverse ASIO assessment of child sex charges can also fail automatically.The minister can cancel or refuse a visa to anyone who fails the character test.

Commenting on the new powers, assistant immigration minister Michaelia Cash said the federal government had low tolerance of criminal behaviour by non-citizens.

'Entry and stay in Australia by non-citizens is a privilege, not a right,' she told the chamber on Wednesday, according to a report in The Australian.'The Australian community expects that the Australian government can and should refuse entry to non-citizens or cancel their visas if they do not abide by Australian laws.'

IN SUMMARY, the purpose of the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (the Bill) is to amend the Migration Act 1958[1] (the Act) in relation to the character test and general visa cancellation provisions to:

Schedule 1—Character test

We have just received the following email from the ACS: