In the article that I posted on the Migration Alliance blog yesterday (24 June 2015) I reviewed the recent decision of the Full Court of the Federal Court, Moana v Minister for Immigration and Border Protection 2015) FCAFC 54 which addresses the “mandatory relevant considerations” that the Minister must take into account when exercising the powers under section 501(2) of the Migration Act to cancel a person’s visa on “character grounds”. 

In brief, the Court held in Moana that it is mandatory that the Minister consider whether there is a “risk of harm” that would arise from the person’s remaining in Australia, but at the same time it is not mandatory that the Minister weight the likelihood of harm (for instance to evaluate how likely it is that the person might re-offend). Interestingly, although the Court in Moana held that “likelihood of harm” is not a “mandatory relevant consideration”, it is nonetheless a consideration that would be of central importance in most cases involving visa cancellations.  The upshot of the Moana decision is that Ministerial decisions to cancel visas on character grounds that have not involved weighing the “likelihood of (future) harm” may well be vulnerable to challenge on grounds of “jurisdictional error”.

Today, I turn to discussion of another, although older, case that also relates to the matters that must be considered by the Minister when cancelling a visa on character grounds – Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) FCAFC 256 (17 September 2014). The Hyunh case is frequently cited and referred to in Federal Court decisions that review visa cancellations (for example in the very recent case of Berryman v Minister for immigration and Border Protection (2015) FCA 616 (23 June 2015)).  It is therefore important for RMAs who deal with visa cancellation cases to be aware of this case as well.

The Australian Government has released the first ever White Paper on Developing Northern Australia. Among the proposals is one to expand the Working Holiday Maker Visa Programme by increasing the amount of time visa holders can work in high demand areas in northern Australia.

The White Paper is a vision to unlock the great potential and opportunities of the north. It focuses on building priority roads, developing water resources, removing red tape, building a sustainable workforce and ensuring effective governance arrangements. It is anticipated that if successfully implemented the proposals could see a doubling of tourist numbers as well as international students in northern Australia in the next 20 years.

Australia’s Working Holiday Maker (WHM) Visa Programme encourages youth mobility and tourism by allowing young adults aged 18-30 years to have an extended holiday in Australia of up to 12 months, during which they can offset their travel costs by engaging in short term work. A total of 239,592 visas were granted to participants in 2013–14.

The White Paper indicates that that the government will amend the WHM Visa Programme to allow both Working Holiday (Subclass 417) and Work and Holiday (Subclass 462) visa holders to work an additional six months with one employer in northern Australia if they work in the following high demand areas in the north:

• agriculture, forestry and fishing

A decision by the Full Court of the Federal Court of Australia that was handed down in late April of this year has clarified the factors that must be taken into account when the Minister personally exercises the powers to cancel a visa on character grounds under section 501(2) of the Migration Act.

The case – Moana v Minister for Immigration and Border Protection (2015) FCAFC 54 (22 April 2015) – involved the cancellation of a “Special Category” visa that was held by a citizen of New Zealand. At the time that his visa was cancelled, Mr Moana was 53 years old and had lived in Australia for 24 years. During the period of his residence, he had developed strong ties to Australia, with 5 adult children, 14 grandchildren, 2 step-children and a 3 year old son living here.

However, Mr Moana had also compiled a substantial criminal record during his time in Australia. This had included a sentence of imprisonment in 1998 for a series of offences including armed robbery, aggravated burglary, false imprisonment, blackmail and theft.  He had also been convicted of multiple counts of breach of “intervention” orders as well as several counts of breach of suspended sentence. Then, in January 2013 he was sentenced to prison again, for kidnapping.

The first review of skills list in three years began last week, with calls to remove specific skills from the Consolidated Skills Occupation List (CSOL).

Australian Council of Trade Unions president Ged Kearney who is the only union representative on the Ministerial Advisory Council on Skilled Migration (MACSM) told The Australian that the list did not look at shortages.

“There is no rhyme nor reason for why particular occupations are on the list, and many, such as nurses, teachers, engineers and a number of trades occupations, should be removed,” she said.

MACSM advises the government on visa and policy settings to optimise the contribution of skilled migration to Australia’s productivity and economy. In effect, it determines the occupations on the skills list by advising the government which to add and which to remove.

Opposing Ms Kearney’s view was Australian Chamber of Commerce and Industry director Jenny Lambert, who said the CSOL list should not be shortened as it allowed for business and regional differences.

“The list needs to be responsive,” she said.

Starkly missing from the government's first-ever round table discussion on international education last week was the issue of the regulation of education brokers. It continues to ignore warnings by the Productivity Commission that Australian institutions should reduce their reliance on agents for student recruitment.

The promotion of international education is high on the government’s agenda given that education has become the standout performer among Australia’s top export industries. With some 600, 000 students currently enrolled, it now earns $17.5 billion a year and is Australia’s third-largest export, even ahead of tourism. It is now moving into a strong growth phase, up 11.2 per cent from last year.

To help manage the growth, the government’s round table gathered about 100 representatives of the industry including education and training providers, businesses, students, community groups and all levels of government “to exchange new ideas and innovative approaches that will help make Australian international education the best in the world.”

However, according to a report in the Australian Financial Review, the round table failed to address one key issue highlighted in The Productivity Commision’s report on International Education Services: education agents.

The Commission’s report released in April this year, questioned the very extensive use of education agents by Australian universities and colleges to recruit international students.