In what may well be Peter Dutton’s last major move as immigration minister, legislation was introduced to the Parliament to make it a criminal offence for a sponsor to be paid by a visa applicant in return for securing a migration outcome.

The Migration Amendment (Charging for a Migration Outcome) Bill 2015 amends the Migration Act 1958 ('the act') to introduce a new criminal and civil penalty regime that will make it unlawful for a person to ask for, receive, offer or provide payment or other benefits in return for a range of sponsorship related events. The bill also allows visa cancellation to be considered where the visa holder has engaged in such conduct, referred to as 'payment for visas' conduct.

'Payment for visas' conduct is not currently unlawful. However a key recommendation of the independent review into the subclass 457 program recommended that legislation is introduced to strengthen the integrity of the program by allowing action to be taken where 'payment for visas' conduct has occurred.

In his second reading speech, Mr Dutton noted that 'payment for visas' conduct may occur through an employer offering to sponsor a visa applicant in return for a payment or benefit. It may occur before the applicant applies for a visa or during the visa holder's stay in Australia. Evidence obtained through monitoring sponsors indicates that the sponsor and applicant are complicit in the majority of 'payment for visas' activity. Employers may also exploit an employee by requiring payment in return for an ongoing sponsorship.

The bill will amend the act to make it a criminal offence for a sponsor or other third party to ask for or receive a benefit in relation to a sponsorship related event. The offence will be punishable by a maximum of two years imprisonment or a fine of up to 360 penalty units, which currently equates to $64,800 for an individual person or five times higher—$324,000—for a body corporate.

The bill introduces civil penalties applicable to a sponsor, visa applicant or any other third party who asks for or receives, or provides or offers a benefit in relation to a sponsorship related event. The maximum pecuniary penalty is 240 penalty units, which currently equates to $43,200 for an individual person or five times higher—$216,000—for a body corporate.

If you were to kill your wife of 30 years by repeatedly hitting her in the head with a hammer while she slept next to your 8 year old child, and the child woke up during the attack and witnessed some of the fatal blows, what chance  do you think  you would have of getting the Full Court to reverse a decision by the Minister to cancel your visa? 

Well, if you would rate the prospects of a person who has been convicted of such a heinous crime as being “negligible”, “non-existent”, “microscopic”, “below the size of a subatomic particle” or, as Australian lawyers love to say “doomed to failure” – you’d be right!! 

Such was the result in the case of Roesner v Minister for Immigration and Border Protection (2015)  FCAFC 132 (15 September 2015). Yes, in this case the Full Court dismissed a challenge to the Minister’s cancellation of his visa on character grounds. This despite the fact that the visa holder had lived in Australia for over 40 years at the time of the offence, and notwithstanding his pleas that he wished to grow old with his children by staying in Australia” (at the time that his visa was cancelled, in August 2014, the visa holder would have been about 73 years old). 

Partnering with Migration Alliance, our national SIV road show continues with Brisbane on Wednesday 7^th October. The event will showcase NAB’s integrated banking and investment solutions to meet the needs of your Significant Investor Visa clients.

Speakers include Greg McKean from QLD Trade and Investment, NAB’s SIV Concierge team of migrant banking and wealth professionals, and a local venture capital manager.

You will also meet investment specialists from NAB Asset Management and JB Were who make up NAB’s SIV Complying portfolio blends covering Australian small companies, corporate fixed interest and property securities.

Does an applicant for a partner visa have a right to have a lawyer present when she/he is being interviewed by an independent expert to determine whether she/he has been the victim of family violence? 

This question was recently addressed by Judge Street of the Federal Circuit Court in the case of Bhalla v Minister for Immigration & Anor, (2015) FCCA 2381 (1 September 2015). As will be discussed below, Judge Street answered this question “in the negative”. His Honour held that it is not inconsistent with principles of “procedural fairness” – and therefore it does not amount to “jurisdictional error” – if an applicant’s lawyer is not permitted to accompany the applicant to an interview with an independent expert who is making an assessment as to whether “family violence” has occurred.  So the short answer: the applicant does not have a right to have a lawyer present.    

Readers of this blog will recall that late last week, a news article appeared on the ABC News Website that reported that Judge Street had ruled against visa applicant in 252 out of 254 cases that he had decided during the period between January 2015 and June 2015. That news article from the ABC, “Federal Circuit Court judge Alexander Street accused of bias after rejecting hundreds of migration cases” can be accessed by clicking through on the link.  

Australian universities have once again emerged as being among the best in the world according to the QS World University Rankings released earlier this week.

Australian National University maintained its place as the highest ranked local institution and climbed six places to become the first Australian university to get in the world’s top 20. Five Australian universities made the top 50.

In a statement on the rankings QS said that Australian universities' performance was remarkable because of their strength in all five of the broad academic disciplines which are judged, being among the top five countries in each of the subject areas.

It said Australia was particularly strong in arts and humanities with three universities - ANU, the University of Sydney and the University of Melbourne - in the world's top 20 in this field.

It noted further that Australia's technical universities also showed strength with all five improving their performance on last year and in the top 300 worldwide.