Australian Immigration Daily News

Should there be more, or easier, ways for unlawful non-citizens to regularise their status in Australia? 

According to the most recent compilation of data that has been published by the Department, Australian Migration Trends 2014 – 2015, it was estimated that there were approximately 62,000 unlawful non-citizens in Australia as at 30 June 2015. This publication states that this number of unlawful non-citizens had remained fairly constant at that number since 2013. 

The Migration Trends publication states that the visa categories with the highest number of “over stayers” are visitor (by far the highest proportion of unlawful non-citizens, about 44,000 or 75%), followed by former holders of student visas and working holiday visas. 

The nationality of the largest number of unlawful non-citizens is Malaysia, followed by the People's Republic of China, the United States and the United Kingdom. 

If these figures are correct, then the issue of “illegal immigration” into Australia would appear to be a tiny problem compared to other countries. 

For example, figures from the United States Department of Homeland Security indicate that there are approximately 11 million “illegal immigrants” living in the United States. 

So even given the huge disparity in the populations of the United States and Australia (318 million vs 24 million) it seems, if the Department's statistics are correct, that the percentage of people who are in Australia as unlawful non-citizens is very small compared to the percentage of “illegal immigrants” in the United States. 

Do the Australian statistics seem correct to you? My own impression is that the number of unlawful non-citizens may be quite a bit larger than reported by the Department. What do you think? 

All of this raises a significant issue: Does Australia's current migration framework provide an appropriate regime for unlawful non-citizens? 

In particular, is the current framework for dealing with applications for Partner visas made by applicants who have become unlawful non-citizens correct, fair and just? 

Should applicants whose prior substantive visas have been expired for more than 28 days be required to be separated from their partners, and be required to apply from “offshore”, with a waiting period of 12 – 18 months, unless they can demonstrate that there are “compelling circumstances” for not applying the Schedule 3 criteria? 

What if an applicant truly is in a genuine, committed and exclusive relationship with their partner? Should they be forced to be separated pending the assessment of the application? Suppose a person has been living in Australia for a number of years, has entered into a spousal or de facto partnership and has developed strong family ties here, but may not be able to show that there are reasons not to apply Schedule 3? 

Should there be any form of “amnesty” for people who find themselves in this situation? 

Or would greater “flexibility” undermine the integrity of Australia's migration system? 

These questions are raised anew by a case that was recently decided in the Federal Circuit Court, Singh v Minister for Immigration & Anor (2017) FCCA 707 (11 April 2017). 

This was a case where, in my view, the reasons put forward for not applying Schedule 3 were relatively weak. But the case does illustrate, once again, that the task of getting over the hurdle of Schedule 3 is really quite daunting for an unlawful non-citizen. 

To refresh: there is considerable scope for “subjectivity” in the process of determining whether Schedule 3 should be “waived”, or not applied, in a particular case. 

That is because, under subsection 820.211(2)(d0(ii) of Part 820 of Schedule 2, the standard for waiving Schedule 3 is that there must be “compelling” reasons to do so. And the term “compelling” is not one that is defined under the migration legislation. The interpretation of “compelling” that has evolved under the case law is that “the circumstances must be sufficiently powerful to lead a decision maker to make a positive finding in favour” of granting a waiver. (See for example the cases of Babicci v MIMIA (2015) FCAFC 77 and MYPZ v MIAC (2012) FCA 478. 

That doesn't really provide a huge amount of guidance, does it? What is “sufficiently powerful” to one person may not be so to another, right? How much honey do you like in your teas? 

Well, in the recent Singh case the applicant wasn't able to convince the tribunal that the reasons he relied on for seeking a waiver of Schedule 3 were sufficiently powerful. 

The applicant claimed that he should not be required to leave Australia and apply from offshore because his partner was on a disability support pension, he was the only person supporting her financially, and she was dependent on the money he earned driving taxis. 

The Tribunal did not accept that these were strong enough reasons to “waive” Schedule 3. 

It concluded that the sponsor had an additional source of income apart from the money her partner earned through driving taxis, namely her disability support pension, and that, accordingly, the loss of his income from the taxi driving work did not amount OT a “compelling reason” to waive Schedule 3. The Tribunal took the view that it was not unreasonable to expect people to modify (lower) their living standards in circumstances where a visa is being sought. Furthermore, the Tribunal found that the assistance that the applicant had provided to the sponsor with the care and support of her children and with household chores was not a compelling reason, because alternative arrangements could be made by the sponsor, and (fatally) because the relationship had broken down since the time that the application for the partner visa had been lodged. 

Would there have been a different outcome in this case if there had been stronger evidence that the applicant was the sole source of financial support to the sponsor? Perhaps. 

And is the height of the bar that applicants have to cross in order to get a “waiver” of Schedule 3 too high? Too subjective? Or just right? 

And should Australia's system of migration laws have other avenues for regularising the status of unlawful non-citizens beyond Partner and Protection visas? 

Your thoughts?

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