Ilaria De Fusco is frustrated because her attempt to become an Australian is going nowhere despite having lodged a valid application for permanent residency over five years ago.

Is there anything wrong with her application? Yes. She spent thousands of dollars on DIBP and professional RMA costs to ensure the best possible application was lodged in 2009 after having lived, studied and worked in Australia since 2001 but her application has been put on hold indefinitely draining her mentally and emotionally. That is what is wrong. She recently discussed her plight in a story on the website www.insidestory.org.au.

“I’ve been here almost half my life,” she said, “It’s very sad. This is such a great country...This is not just about my application,” she says. “It’s about the whole concept of it. The ethics behind it are just not right.”

Ms De Fusco is not alone in this issue. According to immigration department statistics, more than 20,000 people in group 5 have waited more than four years for an answer on their applications for permanent residency. The reason for the wait is DIBPs priority processing policy which came into effect in about 2009.

DIBPs priority processing arrangements generally categorise skilled migration applications into 5 groups giving regional employer sponsored visas the highest processing priority. While the top groups can have the visas processed within months, those in group 5 can wait well over 5 years without any indication of a time-frame as to when their applications may be processed.

Upon receipt of a valid application, DIBP surely must have an obligation to process an application within a reasonable time-frame or inform the applicants of the likely time-frame. In the alternative, DIBP should at least allow applicants who wish to withdraw their applications to do so with a full refund. Perhaps this may help speed things up for those who choose to wait.

A Chinese business is reportedly selling qualification certificates for some of Australia’s prominent universities for $5,700 with the promise that it can actually enter student details into the university databases.

Australian police have started investigations into the scam which sells university degrees for prices ranging from $3500 for “copy” qualities to $5700 for “original versions”, according to a report on the website www.training.com.au.

The business, whose name translates to “Overseas Students Assistant HD”  allegedly offers forgeries from 42 universities and 53 TAFEs including Bachelor of Commerce from Macquarie University, Bachelor of Business from the University of Sydney, Master of Financial Analysis from UNSW and Bachelor of Commerce from the University of Wollongong, according to the report

“The forgeries go beyond the usual pasting of a name and printing a document.  The site claims that for $6500 it will enter the student details into the university database as well as the official qualification register of the Chinese government’s Education Department,’ states the report

Whilst the universities are aware of what is happening and conducting their own investigations most have referred the matter to the relevant authorities as well.  These include the police, ICAC and immigration.

A spokesman for Education Minister Christopher Pyne echoed sentiment that the appropriate governing bodies were aware of what was going on.

Major reform set for education agents

“Course-hopping” by students, a practice apparently encouraged by education agents has been cited as a reason the Australian government is investigating education agent practices with a view to introduce major reforms including the development of an accreditation framework.

One of the unfortunate effects of the streamlined visa processing (SVP) program which offers relatively quick and easy processing of student visas for mainly university students has been the practice of switching to lower cost education providers after they have started their courses. It’s a fraudulent scheme apparently promoted by some education agents.

The government has now ordered ‘a major research and scoping project into a quality framework for education agencies, marking a substantive push forward towards a possible national accreditation or ratings system’ according a report on the website www.pienews.com. The project is expected to deliver its report by the end of June 2015.

Heading the project is Phil Honeywood, executive director of The International Education Association of Australia (IEAA) – the peak body of education agents in Australia. Mr Honeywood is expected to travel to particularly India and China to meet education agents and encourage participation in a stakeholder survey. The survey is seeking feedback to help inform the potential development of a quality framework for Australia’s education agents. In particular, it seeks input regarding “the objectives and functions of a quality framework; agent accreditation systems, training and development; and best practice examples from other countries.”

In recent articles on this blog, I have reviewed decisions of the Administrative Appeals Tribunal in which appeals were taken against Departmental decisions to refuse Australian citizenship on the basis of findings that the applicant was not of “good character”.  In one of these cases, FBMR and Minister for Immigration and Border Protection, (2015) AATA 116 (2 March 2015) an applicant’s failure to accurately disclose his extensive record of serious criminal convictions in New Zealand on his “incoming passenger card” proved fatal to the application. In a second case, Hasib v Minister for Immigration and Border Protection (2015) AATA 82 (13 February 2015), a number of mitigating factors weighed against the applicant’s history of having committed 10 offences involving credit card fraud while in Australia including the fact that the applicant was subject to duress when he committed the offences) and the applicant was able to have the refusal of his application set aside.

In this post, I look at a third case, decided on 1 April, where the applicant’s criminal record consisted only of two traffic offences.  The case, Thuraisamy and Minister for Immigration and Border Protection [2015] AATA 202 demonstrates that minor driving offences are not likely to disqualify a person from Australian citizenship.

The applicant in this case originally arrived in Australia from Sri Lanka as an “unauthorized maritime arrival” and spent time in immigration detention before being granted a Protection Visa.  The driving offences that led the Department’s officer to determine that the applicant was not a person of “good character” included an incident involving “drink driving” in which his blood alcohol level was found to be .034 percent.  Although he was initially convicted of this offence in a NSW Local Court, fined $200 and disqualified from driving for 3 months, the conviction was quashed on appeal to the District Court and the applicant was placed on a “good behaviour bond” for a period of 18 months.  As it turned out, at the time of this first offence, the applicant held a “special category driver’s licence” which prohibited him from having any alcohol in his system, but he was in fact entitled to hold an unconditional licence based on his driving experience before coming to Australia. Had the applicant held this unconditional licence, his blood alcohol level would have been below the legal limit of .05, and no offence would have been committed.

The second driving offence occurred two weeks after the drink driving incident and involved speeding at 140 km/hour in a zone where the speed limit was 110.  The applicant received an “on-the-spot” fine of $800 for this offence as well as a 3 month suspension of his driving licence. However, in his evidence before the Tribunal the applicant explained that the circumstances underlying this offence were that a passenger in his car had been complaining of stomach pains and that he had been speeding in order to get the passenger to a rest facility as quickly as possible.

The AAT was not persuaded that these two driving offences were enough to show that he was not a person of good character, and it therefore set aside the Department’s decision to refuse the citizenship application.  The factors that tilted the balance in the applicant’s favour before the AAT included that he had no other criminal record, that other than these 2 offences the applicant had an “unblemished” driving record (leading the AAT to view the offences as “regrettable exceptions”), that he had a solid working record since being released from immigration detention involving working as a cleaner in a public school and as a carer for disabled people, and that he was able to provide numerous positive references to the AAT.

The outcome here illustrates that a Departmental decision to refuse the grant of Australian citizenship on character grounds can be successfully challenged in circumstances where the Department fails to undertake a considered, nuanced assessment of the applicant’s character.  The Australian Citizenship Instructions require Departmental officers to consider whether an applicant’s criminal record is “serious” or “minor”. Under the ACI  (10.5.2) serious offences include matters such as crimes of violence, war crimes, drug trafficking, and crimes against children, while traffic offences, and offences which do not lead to a conviction or sentence, are categorised as “minor offences”. 

It appears plain that in this case that the Department misapplied the guidelines of the ACI, incorrectly identified offences which were clearly minor to be a basis for an adverse character finding, and wrongly refused his citizenship application.  The case shows that when the Department makes a character decision that does not take into account the full circumstances of an applicant’s criminal record (including of course the nature of the offences) and determines a matter in a way that conflicts with the ACI, the decision can be successfully challenged on appeal to the AAT.

This article was prepared by Michael Arch, Concordia Pacific Migration Lawyers, MARN 1386469, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.  Tel: (02) 8068 8837 Web: concordialaw.com.au

A recent decision of the Federal Circuit Court re-enforces that it is critically important that Registered Migration Agents provide correct contact details for themselves on 956 forms that are lodged with the Department.  The case also again emphasizes (not that any further emphasis is needed!) that the deadlines for filing an appeal with the MRT against the refusal of a visa application will be strictly and inflexibly enforced.

The story of this case – Lutchanah v Minister for Immigration & Anor (2015) FCCA 550 (26 March 2015) – can only evoke the strongest feelings of sympathy for the visa applicant.  It is apparent from the factual history, as recounted in the Court’s judgment, that the applicant would almost surely have obtained the visa in question (a subclass 485 visa) if only emails from the Department which sought further evidence in support of the application had been brought to her attention by the migration firm that she used. Likewise, it seems apparent from the decision that the applicant would have filed a timely appeal to the MRT had she been made aware that her visa application had been refused, and that her appeal would very likely have been successful.

Instead, the visa applicant was left in the unfortunate circumstance of “being left out in the cold”: rather than securing a 485 visa allowing her to remain in Australia to work following the conclusion of her studies, it appears that the applicant will be forced to go offshore and to follow a pathway for either independent or sponsored skilled migration.  The applicant’s prospects for returning to Australia are therefore now uncertain, and, at the least, the commencement of her working life in Australia has been significantly postponed.