australian migration law - legal aid queensland · registered migration agent 9801052 australian...

Lesley HuntRegistered Migration Agent 9801052

AUSTRALIAN MIGRATION LAWAUSTRALIAN MIGRATION LAW

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PERMANENT VISAS

TEMPORARY VISAS

SUBSTANTIVE VISAS

NON-SUBSTANTIVE VISAS

AUSTRALIAN MIGRATION LAW

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AUSTRALIAN MIGRATION LAWNON-SUBSTANTIVE VISAS ARE

BRIDGING VISAS

ENFORCEMENT VISAS

CRIMINAL JUSTICE VISAS

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PERMANENT VISAS• FAMILY MEMBERS• WORKERS• BUSINESS PEOPLE• REFUGEE AND HUMANITARIAN

ENTRANTS• RETURNING RESIDENTS

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TEMPORARY VISAS• Tourists• Working Holiday Makers• Business People• Students• Trainees• Workers• Special activities

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Events Organisers and ParticipantsWorld Youth Day 2008

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FAMILY MEMBERS• Partners• Parents• Child / Children• Other Family

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OTHER FAMILY• Remaining Relative• Aged Dependent Relative• Carer• New Zealand Family Relationship Visa

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WORKERS • SKILLED INDEPENDENT• EMPLOYER SPONSORED• REGIONAL EMPLOYMENT

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For many intending migrants, permanent residence involves a two-stage process.

A period of temporary residence (usually 2 years)

As a pathway to permanent residence.

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The two stage process applies to business visas, partner visas, and some of the skilled / employer sponsored visas.

It also applies to asylum seekers who enter Australia without a valid visa or authentic documents of identification.

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TO BE GRANTED A VISA• Meet legislative criteria for the grant of

the visa• Satisfy public interest criteria

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Legislative Criteria • Schedule 1 – valid visa application• Schedule 2 - criteria to be met at time of

application and time of decision.

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PUBLIC INTEREST CRITERIA• Health• Character• Special Return Criteria

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HEALTH• Dependent on length of visa• 12 months or more generally requires

complete medical, blood test, x ray• For some visas the health criteria can be

waived in prescribed circumstances• For other visas failure of the health test

equals refusal of visa

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CHARACTER• Generally a police clearance certificate is

required from the country of residence and in country in which the person has lived for 12 months or more in the 10 years prior to lodging the visa application.

• For some temporary visas, signing a declaration of no criminal conviction is sufficient.

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SPECIAL RETURN CRITERIA (schedule 4 and 5)

• Substantial compliance with conditions imposed on any visa previously held.

• Exclusion periods may apply for non-compliance

• Possible to waive exclusion period on compassionate and compelling grounds.

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VISA CONDITIONS• All visas have conditions imposed • Schedules 4 – 8 of Migration Regulations• Tourist visas

– No work (condition 8101), - 3 month study limitation, - no further stay (condition 8503)

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AUSTRALIAN MIGRATION LAWSTUDENT VISA CONDITIONS

Satisfy attendance and/or course requirements and maintain a valid enrolment for their chosen course of study. (condition 8202)Continue to satisfy the requirements for grant of the student visa. (condition 8516). No work (condition 8101) unless permission to work has been granted via a separate application after the visa holder has commenced their chosen course of study in Australia. (condition 8104 and 8105).Maintain approved Overseas Student Health Cover while in Australia. (condition 8501).

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Remain with the education provider with whom they originally enrolled for the first 12 months of the course, or if the course is for less than 12 months, for the duration of the course. Only in exceptional circumstances is it possible to change education provider during that period. (condition 8206).Inform the education provider within 7 days of having arrived in Australia of the residential address and advise any change of address within 7 days of the change of address occurring. (condition 8533).If changing education provider, the visa holder must inform the current education provider of this intention within 7 days of the issue of an electronic confirmation of enrolment certificate by the new course provider. (also condition 8533). Maintain adequate schooling arrangements for the student's school-age dependants in Australia on a student dependant visa for more than 3 months. (condition 8517).

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There are other visa conditions which apply to some student visas e.g. 8532 welfare arrangements for under 18 year olds; 8503, 8534 and 8535 no further stay conditions.

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The two year temporary visas leading to permanent residence also have conditions imposed. If conditions breached, temporary visa may be cancelled, or permanent visa refused.

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AUSTRALIAN MIGRATION LAWVisa CancellationLegislation

Migration Act 1958, ss.5, 82, 97-118, 118A-133, 138-140, 501-501BMigration Regulations, R1.03, 2.41-2.47, 2.51-2.53, Schedules 4 and 5

See alsoMigration Act 1958 ss.162-164, 192Criminal Code Act 1995, 22.5.2-5.5, 6.1-6.2, 13.3-13.5, 137.1-137.2

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AUSTRALIAN MIGRATION LAWPower to cancel a visa

S.109 – cancellation on grounds of incorrect informationS.116 - general powers of cancellationS.119 – notification procedures for cancellation of student visaS.128 – cancellation where the visa holder is outside AustraliaS.134 – cancellation of business visasS.137J – cancellation of student visasS.137Q – cancellation of regional sponsored employment visasS.140 – consequential cancellationS.500A – cancellation of temporary safe haven visasS.501, 501A& 501B – special powers to cancel visas on character grounds

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Visa cancellation procedures

Notice of intention to cancel a visa

Visa holder’s response within prescribed period

Decision to cancel or not cancel

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Decision maker takes into consideration:- purpose of the travel and stay in Australia- is the person inside or outside Australia- person’s history of compliance with visa

conditions- hardship caused if visa cancelled- circumstances of grounds for cancellation- visa holder’s record of behaviour with

Immigration

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Decision to cancelReview rights if visa cancelled in AustraliaTime limits for lodging review application

S. 82(1) - visa ceases to be in effect upon decision to cancel being made (except for business visas)

S.134(8) – business visa ceases 28 days after day decision made to cancel.

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S.128 - Cancellation where visa holder is outside AustraliaMinister may cancel the visa without notice

S.129 – where visa cancelled without noticeMinister sends notification of cancellation, grounds and particulars and invites response within prescribed periodMinister can revoke cancellation after receiving response.

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Prescribed periods for response to notice of cancellation or of intention to cancelIn Australia – notice of intention to cancel- to make a response – 5 working days, or- if seeks an extension in writing - a further 5 working days- if no response provided within prescribed period, the Minister may proceed to cancel the visa without further notice.

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AUSTRALIAN MIGRATION LAWPrescribed periods for response to notice of

cancellation or of intention to cancelOutside Australia – notice of intention to cancel or notice of cancellation- If notice of intention to cancel by DIAC in Australia – 28 days- If notice of intention to cancel by Australian Overseas Post (where person situated) – 5 working days; or- If notice of intention to cancel by Australian Overseas Post in any other country – 28 days- If person seeks extension of time and this is granted – 5 working days.

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Prescribed periods for response to notice of cancellation or of intention to cancel

Outside Australia- If person does not respond within prescribed period Minister may cancel the visa without further notice- A person whose visa is cancelled without notice and who receives a notice of visa cancellation and an invitation to respond (seek revocation) – 28 days.

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Prescribed periods for response to notice of cancellation or of intention to cancelPersons in Immigration Clearance – notice of intention to cancel, or notice of visa cancellation- For notice of intention to cancel, the period of that person’s immigration clearance, or- if in “questioning detention”, before the end of 4 hours.

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Prescribed periods for response to notice of cancellation or of intention to cancelPersons in Immigration Clearance – whose visa is cancelled- 5 minutes to respond, or- if the person departs Australia as soon as possible and wishes the cancellation to be reconsidered while he/she is outside Australia – 28 days.

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AUSTRALIAN MIGRATION LAWS.109 – Cancellation of visas obtained

through incorrect informationCorrect information must be provided to DIAC –including on passenger entry card, visa application, interview, and through production of genuine documentsS.98 – where an application / form is completed by a person other than the visa applicant, it is still taken to have been completed by the applicant.S.100 – an answer is taken to be incorrect, even if the person giving the information did not know that it was incorrect.

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AUSTRALIAN MIGRATION LAWS.101 and 102 – all answers to questions must be answered and all answers must be correct.S.103 – an applicant must not give fraudulent/bogus documents.S.104 and 105 – after lodging an application, irrespective of the grant of a visa, any change in circumstances or incorrect information or bogus document must be notified to DIAC.S.106 the onus is on the applicant to inform DIAC of any change in circumstances or incorrect answers, even if the Minister was informed through other means.

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S. 107 provides that the Minister may send a notice of intention to cancel the visa of a person who has been immigration cleared, if the Minister becomes aware that a person provided incorrect information. S.107A provides that non-compliance with respect to a previous visa can be used as a ground for cancellation of a person’s current visa.

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S.108 provides that the Minister must have regard to a response provided by a person in response to a notice of intention to cancelS.109 provides the Minister with the power to cancel on the basis of incorrect information, after having considered the response by the person.

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S.110 and 111 provide that the Minister’s power to cancel under s.109 is not affected by whether the non-compliance was deliberate or not deliberate, nor whether the information about the non-compliance had come from the person or another source.

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AUSTRALIAN MIGRATION LAWS.112 provides that more than one notice may be sent to a person re different occurrences of non-compliance, and non-cancellation with respect to one occurrence does not prevent cancellation re another occurrence. S.113 provides that a person who has complied with s.100-105 inclusive, cannot have their visa cancelled under s.100-105 because of matters disclosed by them in complying with these provisions.

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S. 114 provides for a review of a decision to cancel under these provisions and that if the review succeeds, the person’s visa is taken never to have been cancelled. S.116 provides for cancellation of a visa obtained through the fraudulent actions of another person (e.g. concealment of information on visa application form by migration agent / travel agent, etc).

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Visa Cancellations – General Powers S. 116.S.116(1)(a) – circumstances no longer existS.116(1)(b) – holder has not complied with visa condition S.116(1)(c) – another person has not complied with visa condition (e.g. secondary applicant / visa holder)

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S.116(1)(d)- holder outside Australia and incorrect information provided, including where person not yet immigration cleared.S.116(1)(e) – presence in Australia a risk to health, safety, or good orderS.116(1)(f) – visa should not have been granted due to contravention of law.

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AUSTRALIAN MIGRATION LAWS.116(1)(fa) – non-genuine student (breaching visa conditions; conduct not contemplated by the visa)

S.116(1)(g) – other prescribed grounds for cancellation. S.116(3) if prescribed grounds exist, the Minister must cancel the visa.Regulation 2.43(1) sets out the prescribed grounds. Regulation 2.43(2) sets out the prescribed grounds where a visa MUST be cancelled

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S.117(2) states that a permanent visa cannot be cancelled under s.116 if the visa holder is in Australia and was immigration cleared on last entry. However a permanent visa can be cancelled under other sections (e.g. s.109, s.501, 501A,501B).

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AUSTRALIAN MIGRATION LAWVisa Cancellation - Character Grounds – section 501

The character requirement is part of the public interest criteria to be satisfied before a visa can be granted. (Schedule 4).

All persons 16 years of age and over included in a visa application have to satisfy character requirements.

For an application for a visa for a 12 month or more stay, this requires a police clearance certificate from every in country in which the person has lived, lawfully or otherwise, in the ten years prior to the application being lodged.

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AUSTRALIAN MIGRATION LAWSchedule 4, Criterion 4001- character S.501(6) prescribes the character test.It states in part as follows:

…(6) For the purposes of this section, a person does not pass the character test if:

(a) the person has a substantial criminal record (as defined by subsection (7)); or(b) the person has or has had an association with someone else, or with a group or

organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or

(c) having regard to either or both of the following:

(i) the person's past and present criminal conduct;(ii) the person's past and present general conduct;the person is not of good character; or

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AUSTRALIAN MIGRATION LAW(d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:

(i) engage in criminal conduct in Australia; or(ii) harass, molest, intimidate or stalk another person in

Australia; or(iii) vilify a segment of the Australian community; or(iv) incite discord in the Australian community or in a

segment of that community; or(v) represent a danger to the Australian community or to a

segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.

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AUSTRALIAN MIGRATION LAWSubstantial criminal record

(7) For the purposes of the character test, a person has a substantial criminal record if:

(a) the person has been sentenced to death; or(b) the person has been sentenced to imprisonment for life; or(c) the person has been sentenced to a term of imprisonment of 12

months or more; or(d) the person has been sentenced to 2 or more terms of

imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or

(e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution.

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AUSTRALIAN MIGRATION LAWNote that General conduct is an extremely broad term.

Ministerial Direction No.21, issued on 23 August 2001, lists the following matters to be considered. made a false or misleading statement or provided a bogus document in relation to any application for a visa, or application for a government benefit; made a false or misleading declaration about their character or conduct; been removed or deported from Australia or another country; been charged with an offence; been acquitted of a criminal offence, or where there was no conviction recorded; been involved in activities indicating a contempt or disregard for the law or for human rights. With respect to the latter such matters are listed as including continual evasion or non-payment of a debt; and continual disregard as to payments of family maintenance.

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Lapsed convictions are not exempt and must be declared.S.501(10) if a person’s conviction was quashed or nullified or a person has been granted a pardon, the imposed sentence is to be disregarded.

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Minister’s personal power to cancel- S.501, 501A, 501BMinister may personally make a decision to refuse or cancel a person’s visa on character grounds and deny the person the right of appeal.- S.501(3)and 501(4).

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Minister can personally override the decision of the delegate or the AAT and personally refuse or cancel a visa on character grounds.- S.501A(1) and 501B(2)- Minister has to table such a decision

before Parliament. - no merits review; but judicial review

available.

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Ministerial Direction No.21, issued on 23 August 2001lists the issues to be considered

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Long term residents may have their visas cancelled on character grounds under s.501.Commonwealth Ombudsman’s Report (9/2/06) very critical of the policies and procedures used to cancel the residence visas of long term Australian residents.

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S.139 – if any visa holder has their visa cancelled, then all other persons included in that visa also subject to cancellation. S.140 – cancellation of visas of members of family unitIf cancellation revoked, consequential cancellations also revoked.

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MERITS REVIEW OF VISA CANCELLATIONSMIGRATION REVIEW TRIBUNALREFUGEE REVIEW TRIBUNALADMINISTRATIVE APPEALS TRIBUNAL

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MIGRATION REVIEW TRIBUNAL• FOR GENERAL VISA CANCELLATIONS

REFUGEE REVIEW TRIBUNAL• FOR PROTECTION VISA

APPLICATIONS

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ADMINISTRATIVE APPEALS TRIBUNALFOR CANCELLATION OF BUSINESS VISAS

FOR CANCELLATION OF VISAS ON CHARACTER GROUNDS.

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• PRESCRIBED TIME LIMITS APPLY• MRT 2 working days for bridging visa

cancellations, or if person in detention.• MRT 7 working days for general visa

cancellations• RRT 28 days • AAT 28 days (cancellation of business visas)

9 days (cancellation on character grounds).

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S. 114 provides that if merits / judicial review of cancellation successful and person was in detention because of the cancellation, not entitled to seek compensation because of that detention.

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REMOVALDEPORTATIONVOLUNTARY DEPARTURECOSTSEXCLUSION PERIODS

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REMOVAL (s.198 AND s.199)• UNLAWFUL NON-CITIZEN IN

DETENTION IN AUSTRALIA WITH NO OUTSTANDING VISA APPLICATION

• PERSON REFUSED IMMIGRATION CLEARANCE

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DEPORTATION• Lawful non-citizens (Aust. Permanent

resident / eligible NZ citizen) on criminal or security grounds (s.200). (Australian citizens no subject to deportation, unless person obtained citizenship by fraud).

• Non-citizen in Australia for less than 10 years with substantial criminal conviction (s.201).

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DEPORTATION• Non-citizen (Aust. Permanent resident /

eligible NZ citizen) in Australia less than 10 years assessed by ASIO as threat to security, unless adverse security assessment overturned by AAT). (s.202)

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AUSTRALIAN MIGRATION LAWDEPORTATION• Non-citizen convicted of certain serious crimes,

regardless of length of stay in Australia (s.203). Serious crimes include offences against ss.24,24AA, 24AB,24C, 25 or 26 of the Crimes Act; or prescribed laws of Aust. State/Territory. (treason, treachery, sabotage, sedition, or inciting mutiny against the Commonwealth, assisting prisoners of war to escape, and attempts to do the above, or being an accessory after the fact for the above).

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DEPORTATION• Persons subject to visa cancellation on

character grounds (s.501).• S.205 provides Minister may remove (not

deport) spouse and dependent children of a person for whom a deportation order has been signed.

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VOLUNTARY DEPARTURE • UNLAWFUL NON-CITIZEN MAKES

OWN ARRANGEMENTS TO DEPART. • DO NOT APPLY WHEN NON-CITIZEN

IS UNDER CONSIDERATION FOR DEPORTATION.

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COSTS• Person detained or being deported or

removed from Australia responsible for costs of detention, deportation, removal.

• Any unpaid debt becomes a debt to the Commonwealth.

• Outstanding debt to Commonwealth part of public interest criteria for applying for a visa.

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EXCLUSION PERIODS• Schedule 5, criterion 5001, Migration

Regs.• Person deported after visa cancelled on

character grounds not permitted to return to Australia at any time (except on criminal justice visa).

• S.502 Minister may declare a person an excluded person

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Sch 5, criterion 5002• Person removed from Australia – 12

month exclusion period applies. • Can be waived on compelling or

compassionate circumstances affecting interests of Australia, Aust. Citizen / permanent resident / eligible NZ citizen, justifying the waiver.

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PERSONS WHO LEFT AUSTRALIA AFTER VISA CANCELLATION

• Incorrect information; breached visa condition; not genuine

Subject to risk factor (criterion 4013).

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RISK FACTOR – FACE 3 YEAR EXCLUSION PERIOD - 4013CAN BE WAIVED – COMPELLING / COMPASSIONATE CIRCUMSTANCES AFFECTING INTERESTS OF AUSTRALIA / CITIZEN/P.R. / ELIGIBLE NZ CITIZEN. DEPENDS ON WHETHER 4013 IS CONDITION TO BE MET ON APPLICATION FOR NEW VISA

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GENERALLY THE 3 YEAR EXCLUSION PERIOD ONLY APPLIES TO TEMPORARY VISA APPLICATIONS.

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AUSTRALIAN MIGRATION LAWVOLUNTARY DEPARTURE(Persons who left Australia after substantive visa ceased – risk factor criterion 4014 applies).

• Left Australia more than 28 days after expiry of substantive visa

• 3 year exclusion period • Can be waived on compelling / compassionate

grounds affecting interests of Australia.

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