The Administrative Appeals Tribunal (AAT) has started giving effect to the decision in SZOXP where the Full Court of the Federal Court of Australia held that, “there is no requirement that the couple previously live together in the definition of a “de facto relationship” or in the requirement that the couple “do not live separately and apart on a permanent basis” prior to lodging an application for a Partner Visa.

In what looks to be the first AAT case on the matter, the Tribunal reviewed a decision by the delegate to refuse the grant of a partner visa to a Sri Lankan applicant on the basis that the delegate was not satisfied that there was sufficient evidence that the parties had been living together.

The case involved a same-sex couple who admitted that they had not set up a household together as such and had not lived together as de facto partners.

In its decision to remit the application to the delegate for reconsideration, the Tribunal first observed that given societal attitudes and the laws criminalising same sex unions in Sri Lanka, the 12-month de facto requirement ought to have been waived in any case on the basis of ‘compelling and compassionate reasons’.

The Tribunal then went on to give effect to the Full Federal Court’s decision in SZOXP v Minister for Immigration and Border Protection FCAFC 69 (11 June 2015) which held that:

The 485 visa enables International graduates to live and work in Australia temporarily after they have finished their studies. When applying for this visa, applicants must provide evidence that they have made appropriate arrangements for health insurance in Australia for the duration of the visa processing period, and their stay in Australia once the visa has been granted.

If you have clients who are applying for a Temporary Graduate Visa (Subclass 485), Bupa’s overseas visitor covers meet Department of Immigration and Border Protection (DIBP) health insurance requirements and also include the following benefits:

A recent decision by Judge Street of the Federal Circuit Court has provided clarification concerning the circumstances when the Administrative Appeals Tribunal has jurisdiction to hear appeals against the Department's refusals to grant 457 visas. 

It is essential that all RMAs who are assisting clients who have received such refusals, and who are considering whether or not to seek review before the AAT, be aware of this case, Kandel v Minister v Immigration & Anor, (2015) FCCA 2013 (7 August 2015). 

It appears that it has been the case that the AAT and its “predecessor”, the Migration Review Tribunal, has been taking the view, based on the decision of Judge Nicholls in the case of Minister for Immigration v Lee & Ors  (2014) FCCA 2881 (10 December 2014) that it did not have jurisdiction to accept appeals in cases where either there was 1) not, at the time that the application for review is made to the AAT, either an approval of the nomination of an occupation in relation to the 457 applicant in force, or, alternatively, 2)an application for review of a Departmental decision not to approve the nomination made by the sponsor pending before the MRT/AAT.  It also seems to have been the case that the MRT/AAT has been sending out what might be referred to as “Lee letters” when the nomination has not been approved and in force, or a refusal of a nomination has not been the subject of an application for review to the AAT/MRT, informing review applicants of its views that it does not have jurisdiction in these situations.

At least 3 unions who represent some of Australia’s lowest-paid workers are relying on foreign talent to promote their cause.

United Voice employ nine people on 457 visas while two other unions — the Australian Education Union and the Shop Distributive and Allied Employee's Association - have also hired staff on the temporary skilled work visas, according to a report in The Australian.

 “The revelation that multiple unions have employed subclass 457 visa holders is an act of incredible hypocrisy and duplicity given the long-term campaign the union movement has waged against the 457 program,"Assistant Minister for Immig¬ration and Border Protection Michaelia Cash told The Australian.

The Immigration Department has revealed that “workplace relations adviser is the most frequently sponsored occupation’’ among unions, “with the other sponsored occupations being copywriter, organisation and methods analyst, database administrator, and training and development professional’’.

Most of those on union-sponsored 457 visas are from Britain and the US, with workers also coming from India, The Netherlands, Canada and Singapore, answers¬ to a Senate inquiry into Australia’s temporary work visa programs revealed.

The Fairwork ombudsman is trying to make ‘inroads’ into migrant communities through its newly appointed team of Community Engagement Officers, whose aim is to protect foreign workers on the one hand and help deport illegal workers they find along the way, on the other.

The FWO says its recently launched program aims to “foster new relationships with international student bodies and multicultural communities…to ensure migrant workers, overseas workers, international students and employers are aware of their workplace rights and responsibilities,” declared the statement from the FWO.

The program will also be used to uncover illegal workers. In June, the Fair Work Ombudsman joined with the Department of Immigration and Border Protection (DIBP) to form Taskforce Cadena to jointly combat the incidence of fraud and exploitation involving foreign workers in Australia. One of the stated aims of Taskforce Cadena is to utilise intelligence from a range of sources to identify and investigate major targets of interest.

The FWO statement noted that visa-holders now account for 11 per cent of all requests for assistance received by the Fair Work Ombudsman. Last financial year, the Fair Work Ombudsman recovered $1.6 million in underpaid wages and entitlements for visa-holders – up from $1.1 million in 2013-14.

FWO Ombudsman, Ms Natalie James said that the Fair Work Ombudsman has been active in this area for many years and understands that visa holders can face a number of barriers to understanding and enforcing their workplace rights.  “Youth, language and cultural differences, concerns about their visa status all contribute to these barriers and can also make them more vulnerable to exploitation,” she said.