Goodbye Blogger

From September 2014, I have moved my blog so that it is part of my main website.
The new URL is www.paulcutler.com.au/blog/

Survived 4020

I have previously blogged about PIC 4020 (providing false information or bogus documents).

I just came across this case in the Migration Review Tribunal where an applicant managed to convince the tribunal that his skills assessment was based on real work experience. It appears that there has been an outbreak of common sense:

http://www.austlii.edu.au/au/cases/cth/MRTA/2014/1542.html 

Polio Threat

I received this email from DIBP today (if you want more info let me know):

The Department is introducing measures whereby certain visa applicants will be asked to provide polio vaccination certificates. This is in response to the World Health Organization’s (WHO) declaration that wild poliovirus transmission is a Public Health Emergency of International Concern.

.....

If the visa applicant is applying from outside of Australia and has spent a period of 28 days or longer on after 5 May 2014 in Afghanistan, Cameroon, Equatorial Guinea, Ethiopia, Iraq, Israel, Nigeria, Pakistan, Somalia or Syria, or in any combination of these countries, they should be vaccinated against polio prior to their departure. The visa applicant should provide their current certificate of vaccination against polio. If they are lodging a new application, this should be provided at the time of lodgement. 

No limit to number of protection

On 20 June 2014, the High Court unanimously held that the Minister for Immigration and Border Protection ("the Minister") did not have the power under s85 of the Migration Act 1958 (Cth) ("the Act") to limit the number of protection visas that may be granted in a specified financial year.

Two cases were decided by the High Court - Plaintiff M150 of 2013 v Minister for Immigration and Border Protection [2014] HCA 25 and Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24.

The High Court found under s65 of the Migration Act 1958, the Minister has a duty, after considering a valid application for a visa, to grant the visa if satisfied that certain conditions are met and to refuse to grant the visa if not so satisfied. Section 65A imposes a duty on the Minister to make a decision on protection visa applications within 90 days.

I acknowledge the assistance of the MIA which provided the above text in Notice 2014.68 which was circulated to members this afternoon.

Budget Aftermath 2014

As a result of the May 2014 Federal Budget it appears that a number of "other family" visas are about to cease to exist:

Applications can still validly be lodged. All valid applications will remain in the pipeline and be processed in due course. The cessation of new applications under the Other Family and Non-Contributory Parent visas will take place prior to the start of the 2014-15 programme year. The visa subclasses affected are:

Parent (subclass 103)

Aged Parent (subclass 804)
Aged Dependent Relative (114)
Remaining Relative (115)
Carer (116)
Remaining Relative (835)
Carer (836)
Aged Dependent Relative (838).

Specifics concerning the date the necessary regulatory changes will take effect have not yet been settled and we will get earliest advice to you and your industry colleagues once these details become clear. The announcement in the Budget papers concerns the cessation of new applications under the Other Family and Non-Contributory Parent visa categories and didn’t make reference to “capping at zero” or other measures, that would affect applications validly lodged prior to the cessation date.

If you want one of these, you'd better be quick!

Creative commons acknowledgment for the photograph.

The above information is taken from email notice dated 16 May 2014 provided by the Migration Institute of Australia (MIA) as a service to its members.

PIC 4020 in the Full Federal Court

On Friday last week (4 April 2014) the Full Federal Court handed down judgment in the first appellate court decision on the meaning of PIC 4020 (bogus documents and misleading information).

The case Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42 was about a bogus IELTS test result that was provided as part of the application. Although you can read the whole case by clicking on the link, in my view the most pertinent paragraphs are the following ones:

32. It is apparent from the terms of PIC 4020 that it addressed the problem of attempts to work a fraud or deception on the assessment of claims for a visa.  That is also evident from the fact that PIC 4020 states a “public interest” criterion, from the narrow and exceptional circumstances necessary to waive its requirements and, more generally, from the serious consequences that follow from its application.  I would not infer any apparent intention to disqualify a visa applicant who could explain an innocent mistake in a document or information provided by them.  PIC 4020 is not directed, in my view, to innocent, unintended or accidental matters.  However, different questions arise when information or documents provided in support of an application are revealed as false, in the purposely untrue sense of that term. 
    ....

49. For the reasons I have already given, it should be accepted that PIC 4020 is directed to information or documents which are purposely untrue.  It seems to me to be clear from the same analysis that the purpose of PIC 4020 was to render visa applicants ultimately responsible for the veracity of the information and documents supplied to support the application.  Although the limited terms of the waiver (and therefore any discretion to excuse non-compliance) make it apparent that innocent errors are not the focus of attention, it is equally clear that PIC 4020 is directed at the overall integrity of the visa system and as a bulwark against deception and fraud from any quarter associated with a visa applicant.  It is not inconsistent with a coherent public policy to make a visa applicant ultimately responsible for purposely untrue material provided with a visa application.  It would be an intolerable burden on the administration of the visa system to require that those assessing visa applications not only discover that information or documents are false in a material particular, but also that the visa applicant who provided them knew them to be so.  In many cases that would be impossible and would defeat the apparent intent of the provision. 
    
    
50. There was no doubt in the present case (and in Vyas) that the IELTS test result form provided by the first appellant contained false information.  It was clearly open to the MRT, on the other facts found by it, to conclude that it was bogus.  It was a counterfeit.  It was not the real thing.

Working Holiday - expanding

Minister Morrison speaking at Tourism and Transport Forum leadership summit, Canberra on 19 March 2014 said:

"Australia's Working Holiday Maker visa programme is a large, popular and growing option for young adult overseas travellers to Australia, with more than 258 000 visa grants in 2012-13, a 15.8 per cent increase from 2011/12.

Remarkably, this is larger than all three of Australia's main Working Holiday Maker competitor markets combined – Canada, New Zealand and the UK.

Established in 1975, the programme has evolved from largely Commonwealth based origins to span 28 countries across the globe, covering Europe, Asia, the United States, Canada and, more recently, expansion into Latin American, following the addition of Chile, Argentine and Uruguay to the scheme.

In terms of participation of travellers from partner countries, the programme has tripled in size over the last decade.


My department is currently in the process of negotiating new and more liberalised Working Holiday Maker visa arrangements with thirteen new partner countries. These include Poland, Mexico, Hungary, Greece, Spain, Portugal, Vietnam, San Marino, the Czech Republic, Israel, Latvia, the Slovak Republic and Andorra. These new countries will provide fresh impetus for growth within the programme itself but also facilitate broader opportunities for tourism engagement.

Providing a unique cultural exchange experience to young adults during their formative years can only enrich the lives of participants, both Australian and partner country nationals.

The economic benefits of the programme too are considerable." [of course!]

Creative commons acknowledgment for the photo.

Bogus: PIC 4020

Many visas are subject to "public interest criteria" ("PIC"). PIC 4020 provides a ground to refuse to grant a visa 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 a material particular. The scope of PIC 4020 is wider than you think and there is an emerging body of case law on it as well.


It is harsh in its operation (don't get me started) and from 22 March 2014, it's breadth is going to be widened by the Migration Amendment (2014 Measures No 1) Regulation 2014, which is going to add the following to 4020:

1. (2A)  The applicant satisfies the Minister as to the applicant’s identity.

1. (2B)  The Minister is satisfied that during the period:

1. (a) starting 10 years before the application was made; and

1. (b) ending when the Minister makes a decision to grant or refuse the application;

1. neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A). 

Creative commons acknowledgement for the photograph

Half of all migrants live in Sydney or Melbourne

This is an ABS media release from 17 March 2014:

Australians born overseas were more likely to live in major urban areas, with half of all migrants living in Sydney or Melbourne according to the latest Australian Social Trends (AST) article released by the Australian Bureau of Statistics (ABS) today.

With one in four Australians born overseas, the AST article looks at the 2011 Census of Population and Housing to see where people live by country of birth.

ABS Assistant Director of Social and Progress Reporting, Ms Guinevere Hunt, said that in all capital cities except for Hobart and Darwin, more than half the CBD residents were born overseas.

"We found that the suburbs with the highest proportion of people born overseas included Haymarket in Sydney, Clayton in Melbourne, Robertson in Brisbane, Regency Park in Adelaide, and Northbridge in Perth. 

"Suburbs near universities also have high proportions of migrants," said Ms Hunt.

The largest migrant group in Australia are people born in the United Kingdom (UK), followed by people born in New Zealand, China and India. This has changed from 2001 when the largest migrant groups were from UK, New Zealand, Italy and Vietnam.

"In Sydney, two in five residents of Harris Park were born in India, and Hurstville had the highest proportion of people born in China. In Melbourne, one in four people living in Sunshine North was born in Vietnam, and in Perth, two in five residents of Jindalee were born in the UK," said Ms Hunt.

AST articles are freely available online at www.abs.gov.au/socialtrends

Unreasonable

What do you think of these facts:

19. At the hearing on 9 November 2012, the Tribunal agreed to wait until close of business on 31 December 2012 to receive the results of the IELTS tests which the first respondent had booked on 17 November 2012 and 1 December 2012. In its own words, the “Tribunal said it would not agree to wait for further evidence after that date, as he made his visa application over 2 years before and he has had many opportunities to sit several English language tests”.
20. The Tribunal’s deadline of 31 December 2012 passed without the first respondent communicating with the Tribunal. However, the next day, 1 January 2013, the first respondent sent a facsimile to the Tribunal, attaching his test results and a letter. The results showed he had achieved the requisite marks in the December test on all topics except the topic of “Listening”, where he scored 5.0. In his letter to the Tribunal, the first respondent wrote:

Dear MRT representative,

Please find faxed documents in support of my above mentioned MRT Case No.: 1205119. I am sending copies of Test Report Card for IELTS tests taken by me on 17/11/2012 and 1/12/2012. Please be advised that I am going to apply for reevaluation/rechecking of test result for the test taken by me on 1/12/2012 and I hope to get the required result (i.e. enough to prove that I have competent English) for the same after reevaluation/rechecking.

21. On 3 January 2013, the Tribunal sent to the first respondent’s migration agent a letter informing the first respondent that it “has declined to grant any additional time” and that it would “now proceed to a decision”.

If you think the MRT's decision not to give an adjournment was unreasonable, you are not alone. This is the same view that the Full Federal Court came to in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 

Creative commons acknowledgement for the photograph.

Equivalent Terms

Sponsors for 457 visas have an obligation to employ visa holders on "equivalent terms and conditions" to what an Australian doing the same job would receive.

If this condition is not met, apart from sanctions that can be applied by DIBC for non-compliance, the sponsor might end up with an industrial law action on their hands. This is precisely what happened to the franchisors in the following case that was reported in the Sydney Morning Herald.

Details of the sponsors obligations and sanctions can be found on DIBC website.

Mongrel Nation

"Mongrel Nation" was a 6 part documentary on ABC Radio National which explored a number of issues about immigration and multiculturalism in Australia, including:

1. The Asian Century
2. A Big Australia (about migration and population growth)
3. Ugly Mongrel - racism and aggressive nationalism
4. Multiculturalism - the Australian way
5. The life and times of Australian Multiculturalism

I missed it when it was first aired in August 2013, but caught up with the repeats in January 2014. very worth a couple of hours to listen to it. The program home page (where you can download audio files or read the transcript) is at: http://www.abc.net.au/radionational/programs/mongrelnation/

Creative commons acknowledgement for the photograph.