A Melbourne business operator has been fined more than $228,000 after admitting she underpaid a vulnerable migrant employee because she thinks Australia’s minimum pay rates are “just crazy”. The Federal Circuit Court has imposed a penalty of $35,496 against businesswoman Na Xu after she admitted responsibility for underpaying the employee $19,567 over a period of just eight months. 

Xu’s travel services company Grandcity (GW) Travel & Tour Pty Ltd, which operates the Grandcity Tours travel agency at Glen Waverley, was fined a further $192,840. The penalties are the result of an investigation and legal action by the Fair Work Ombudsman.

An FWO report said, its inspectors discovered the underpayment after receiving a request for assistance from a 24-year-old migrant from China.

The employee, who spoke limited English, was paid flat hourly rates of between $9 and $11 to work a casual travel consultant between January and September, 2013.

Under the General Retail Industry Award, the employee should have been paid more than $21 for normal hours, plus penalty rates for weekend and public holiday work. She was paid less than half of her total entitlements.   

Is it possible for a person who is married to, or the de facto partner of, an Australian citizen to get Australian citizenship even if the person lives overseas most of the time? And if it is possible, under what circumstances may the person qualify for citizenship?

These questions were presented to the Full Court of the Federal Court in the recent case of Minister for Immigration and Border Protection v Han, (2015) FCAFC 79 (4 June 2015). In its decision, the Court provided clear and unequivocal answers. And in the process, the Court adopted an interpretation of the Australian Citizenship Act that had previously been accepted in some judgments of the Administrative Appeals Tribunal, but rejected in others. In other words, there was a “split”, or “difference of opinion” in the AAT about the requirements of the legislation. The decision of the Full Court in Han resolves that “split”.

The issue that was before the Court in Han was about the exercise of the Minister’s discretion to grant relief from the residency requirements that normally apply when a person is seeking citizenship on the basis of “conferral” – that is, where the applicant is not entitled to an automatic grant of citizenship as a result of being born in Australia with one or both parents holding Australian citizenship or permanent residency at the time of the person’s birth.

Background

PIC 4020 was introduced in 2011 to strengthen the integrity of Australia’s immigration program by detecting and preventing visa fraud.  PIC 4020 provides a ground to refuse to grant a visa where the applicant fails to satisfy the Minister of their identity, or where there is evidence that the visa applicant has given, or caused to be given, a bogus document or information that is false or misleading in relation to:

·         the application for the visa

by David KO Chin, Managing Director, Basis Point

The author of the 2013 best seller Crazy Rich Asians has launched China Rich Girlfriend.  His response to criticism that he is replacing one bad stereotype (of poor Asians) with another bad stereotype (of rich Asians) was that he was ‘opening up the range of stereotypes’.

One of the biggest challenges in digesting the information overload on ‘new China’ is that the extremes are interesting but not the norm.  We suggest the normal distribution curve be kept in mind to reclassify where the information sits in the larger picture.

Some of them have been living here for over 20 years, according to a report in The Australian. The nationalities of these overstayers may surprise you.

The department of immigration estimates that some 62,100 people were unaccounted for in Australia during 2014, which is roughly 1.2 per cent of the 5.5 million people who enter the country each year on temporary visas.

People from China, Malaysia and the United States were the highest number of visa overstayers in Australia in 2013, with the Chinese topping the list at 7690.

According to an Immigration Department report, Migration Trends 2012-2013, visitors (44,800) and students (10,720) were the largest cohort of visa holders to overstay their visit. The highest number of visa overstayers in 2013 by nationality came from China (7690), Malaysia (6420), the US (5220) and the UK (3780).

An Immigration spokesman told The Australian that people found with expired visas could be detained and removed if located by the department in the community. Unlawful non-citizens also face a three year re-entry ban.