I do not want to earn a reputation as “The Grinch That Stole Christmas”! 

And I do not want to cast a shadow over the upcoming festive season (for which I wish my devoted readers: “All the best”!!!!!) by this series of articles about partner visa applications that “did not work out”. 

It just so happens that some interesting cases in this area are showing up right now through the reports on Austlii. So, much as I would like to be in control of the docket of the Federal courts (wouldn’t all of you like to have another migrant-friendly judge on the Federal bench (vote for me!!)), the subject matter of the decisions that have been coming down is really not my fault – don’t blame me! 

New Zealanders held in immigration detention centres pending deportation from Australia are being asked to sign forms that give away their guaranteed right to an appeal when they choose to return home, according to a report on Radio New Zealand (RNZ).

The form these Kiwis are given to sign states, “If I have outstanding visa applications, requests or legal proceedings, I understand that if I choose not to withdraw them, consideration of my claims by the department or relevant review bodies (including the courts) may be discontinued once I am removed from Australia.”

Greg Barns of the Australian Lawyers' Alliance said the document left New Zealanders at the mercy of Australia's Immigration Department.

As a lawyer, I have often found that I can learn a whole lot more by reading cases where “things went wrong” than cases where “everything went swimmingly” and someone “routinely” won their case. 

The cases where problems caused someone to lose in court can teach us a lot about the types of issues that can cause a visa application to fail. And so if we know about those problems, hopefully we can avoid them when we deal with our own cases. Or at least figure out if there’s any guidance we can give our clients to help them mitigate the problems with their applications, and improve their chances of getting a visa.  Or at least be able to advise our clients about the potential pitfalls or “landmines” in their cases, so they can know about the possible risk they face and make an informed judgment about whether they want to go ahead with the application notwithstanding the risks.  

In this regard, a recent case from the Federal Circuit Court – Zaoud v Minister for Immigration & Anor (2015) FCCA 3138 (25 November 2015) – makes for useful reading. 

A Melbourne service station has been ordered to pay fines of over $92,000 for underpaying 2 Indian workers some $111,000 as well as breaching pay-slip and record-keeping obligations.

Two console operators at the BP service station on Clyde Road at Berwick were paid as little as $10 an hour for over 4 years while they were holding temporary visas. From the statement released by the Fair Work Ombudsman, it seems that they started proceedings via the Ombudsman after they were granted permanent residence.

Following legal action by the Fair Work Ombudsman, service station operator Liquid Fuel Pty Ltd was fined $79,537 by the Federal Circuit Court. Husband-and-wife managers Xin Zhang and Linda Qu have also each been fined $4504 and a penalty of $3861 imposed against company director Nian Li, who is Ms Qu’s father.

Fair Work Ombudsman Natalie James says a decision was made to commence legal action because of the blatant nature of the underpayments and the involvement of vulnerable overseas workers.

According to the FWO the 2 workers were paid flat rates ranging from $10 to $17 an hour, resulting in underpayment of their minimum hourly rates, casual loadings and penalty rates for overtime, weekend and public holiday work.

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