by Paul Cutler | Oct 7, 2015 | Uncategorized
On 22 September 2015 the Assistant Minister set a cap for offshore General Skilled Migration (GSM) visas. The following offshore General Skilled Migration (GSM) visas are affected:
- Skilled Independent (subclass 175)
- Skilled Sponsored (subclass 176)
- Skilled Regional Sponsored (subclass 475).
The cap sets the maximum number of places that can be granted in the 2015–16 financial year for these visa subclasses. This total has already been reached. Therefore, applications for these visas that were not finalised before 22 September 2015 are taken not to have been made and the relevant visa application charge will be repaid to affected applicants.
This means that applicants who have been waiting for years are only entitled to a refund. The MIA has corresponded with DIBP and received the following response:
It is understandable that many offshore clients will be unhappy with the outcome. The Government has determined that it is unfair to keep them waiting in the queue and we have taken action accordingly.
Having taken into account the High Court’s judgment in Plaintiff S297/2013 v Minister for Immigration and Border Protection & Anor [2014] HCA 24 and Plaintiff M150 v Minister for Immigration and Border Protection & Anor [2014] HCA 26 we remain of the view that Ministerial Determination IMMI 15/112 is validly made.
….now there’s customer service for you.
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by Paul Cutler | Aug 24, 2015 | Uncategorized
A recent Full Federal Court case has clarified whether living together is required as a pre-requisite to be being a de facto relationship. The answer is that living together is not necessary.In SZOXP v Minister for Immigration and Border Protection
[2015] FCAFC 69 the court looked at the meaning of Migration Regulation 5CB(2)(c) which provides a definition of de facto which includes:
(i) live together; or
(ii) do not live separately and apart on a permanent basis; and
The case is quite interesting to read because it sets out a lot of legislative and other history about the requirements of a relationship. The conclusion reached was:
- The appellant’s construction of s 5CB of the Migration Act, which does not require that the parties physically reside in the same premises prior to the application, is supported by the plain meaning of the section. It is consistent with other provisions of the Migration Act, notably the definition of spouse in s 5F. It avoids the ambiguities and the difficulties associated with an implication of the additional words into s 5CB(2)(c)(ii) sought by the Minister. It is supported by the section’s legislative history. And it is supported by the well hallowed meaning of the phrase “living separately and apart” as that phrase had been established at the time the section and its predecessors were enacted.
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by Paul Cutler | Jul 2, 2015 | Uncategorized
There were a number of major changes to migration related matters which occurred on 1 July 2015. Two of the most significant were:
BORDER FORCE
As part of the amalgamation of the Department of Customs and the Department of Immigration and Border Protection which came into effect on 1 July. Amongst other things, this means that the DIBP has a new website: www.border.gov.au (which will replace the old immi.gov.au site which has been around for as long as I can remember)
REVIEW TRIBUNALS
The amalgamation of the Administrative Appeals Tribunal, the Social Security Appeals Tribunal and the Migration Review Tribunal Refugee Review Tribunal was merged into a single body, the Administrative Appeals Tribunal.The amalgamated Tribunal promotes accessibility of review by simplifying the merits review system and providing a single point of contact for Tribunal users. Key services of each of the amalgamated tribunals will be retained, while allowing for greater sharing and utilisation of members’ specialist expertise. See the press release for more information.
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by Paul Cutler | Jul 2, 2015 | Uncategorized
The Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 was introduced into parliament at the end of June 2015. The following information comes from the explanatory memorandum:
The Bill introduces three new ways in which a person, who is a national or citizen of a country other than Australia, can cease to be an Australian citizen:
- the person renounces their Australian citizenship if the person acts inconsistently with their allegiance to Australia by engaging in specified terrorist-related conduct;
- the person ceases to be an Australian citizen if the person fights for, or is in the service of, a declared terrorist organisation. A declared terrorist organisation is any terrorist organisation as defined by the Criminal Code and declared by the Minister to apply;
- the person ceases to be an Australian citizen if the person is convicted of a specified terrorism offence as prescribed in the Criminal Code .
The proposed amendments are intended to capture those dual citizens who, by acting against the interests of Australia by choosing to engage in terrorism, have by this conduct repudiated their allegiance to Australia, thereby renouncing their Australian citizenship.
The operation of these provisions are by operation of law and do not necessitate the Minister making a decision. That is, a person’s own conduct, specified in the new sections 33AA, 35 and 35A will be the cause of the person’s citizenship to cease.
The amendments in the Bill:
- apply to a person who is an Australian citizen regardless of how the person became an Australian citizen, including a person who became an Australian citizen upon the person’s birth;
- will not result in a person becoming stateless. The Bill only applies to persons who are a national or citizen of a country other than Australia, that is, dual citizens, and who would therefore not be rendered stateless if their Australian citizenship were to cease;
- prevent a person from re-obtaining Australian citizenship where they have ceased to be an Australian citizen under the three new provisions providing for citizenship to cease. The person can never become an Australian citizen again unless the Minister exempts the operation of the relevant cessation provision;
- requires the Minister to give written notice of the automatic cessation of Australian citizenship to such persons as the Minister considers appropriate;
- allows the Minister to rescind the written notice and exempt a person from automatic cessation of their Australian citizenship if the Minister considers it is in the public interest to do so;
- protects the disclosure of information in circumstances that would prejudice national security. The protection of such information is necessary to protect information; however, the courts will have access to the information in accordance with two existing mechanisms to manage such information in litigation: public interest immunity (PII) and the National Security Information (Criminal and Civil Proceedings) Act 2004 (the NSI Act).
The amendments in the Bill do not limit the application of judicial review.
by Paul Cutler | May 9, 2015 | Uncategorized
Today I received two emails about the removal of the requirement for lawyers to be registered as migration agents.
EMAIL 1 – from the Law Council of Australia
Today the Australian Government announced that it will dismantle the dual regulation of lawyer migration agents. Migration lawyers with practising certificates will not have to register with the Office of the Migration Agents Registration Authority (OMARA) once the reforms have been legislated and commence later in 2015.
The Law Councils media release warmly welcoming this reform is attached.
Registration requirements for migration agents entering the profession will be tightened, and re-registration processes streamlined for agents who have a proven record of good standing. The Government says it will implement a majority of the recommendations of the 2014 Independent Review of the OMARA.The Governments media release is accessible here.
EMAIL 2 – from the Migration Institute of Australia
Whilst the removal of lawyers from the registration system is something the MIA has made submissions against, the final outcome does not remove the personal need and responsibility of lawyers to undertake migration courses should they wish to provide migration assistance. Membership of the MIA as the professional association, which offers professional support, education and collegiality should be an integral part of the migration profession as it is well placed to assist both lawyers and non-lawyers in acquiring specialist migration knowledge, practice and procedure.
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