Resources


Australian Immigration Law is constantly changing. The resources section provides our clients with regular updates on Migration Review Tribunal decisions, Department of Immigration announcements, as well as relevant Federal Court decisions.

Do you have the required skills to comply with the requirements of a 457 visa?


A recent decision by the Migration Review Tribunal (“MRT”) outlines the importance of ensuring 457 visa applicants have the required education and skills to carry out the nominated occupation.

In the recent case (4th Jan 2011), the MRT held that the visa applicants did not have the required skills to carry out the duties of a “vehicle painter”. The MRT specifically referred to the migration regulations and concluded applicants who did not have the required skill to carry out the nominated occupation did not satisfy a key requirement of the 457 visa.

The interesting part of this case is the lengths the department of immigration went to assess the applicants skills. The department of immigration sent officers from the Chinese consulate General to conduct a site visit and invite the applicants to demonstrate their vehicle painting skills.

This decision highlights the importance of seeking qualified advice in relation to whether your work history and skills will satisfy the requirements of a 457 visa. BeConsulting has consultants with extensive local (Australian) Human Resources experience who will be able to provide the sponsor or the applicant pertinent advice on whether the applicant will satisfy this essential element of the 457 visa.

If you are considering employing someone on a 457 visa then contact one of our consultants – Usman on usman@beconsulting.net.au . Usman will be more than happy to help you with your 457 visa issues as well as any other immigration issues you may have.

Are you a “genuine visitor” for the purposes of a tourist visa?


A recent decision (24th January 2011) by the Migration Review Tribunal (“MRT”) indicates the benefit of using a professional rather than doing it yourself.

In this case, the applicant had applied for a tourist visa for her brother. The applicant stated that she was willing to provide for her brother financially as well as provide accommodation. The applicant stated that she wanted her brother to come to Australia for a period of three months to celebrate Christmas with her family and her sisters. Upon reviewing the application the department of immigration refused the application on the basis the applicant was not a “genuine visitor” to Australia, that is, he was unlikely to return to his home country at the end of his visa. The department of Immigration came to this conclusion because the applicant and her brother had not adequately satisfied, to the departments standards, the brother would return to his home country at the end of the visa.

The applicants appealed to the MRT. At the hearing the applicant adduced further evidence as to why her brother was a genuine visitor. Some of the evidence which was adduced included statutory declarations, personal statements, financial records as well as information about why the applicants brother would return to his home country after the visa expired. Only after the tribunal heard this new information did the tribunal conclude the applicants brother was a genuine visitor.

This case demonstrates how using a professional can save you unwanted costs. At BeConsulting, we do more than simply submit your application. We present your case in the best possible light by drafting reports, statutory declarations as well as submitting further information.

If you have a tourist visa application which has been rejected, contact BeConsulting today on enquiries@beconsulting.net.au who may be able to assist you at the MRT or assist you earlier on so you do not have to go to the MRT.

Failure to lodge an application within 28 days of the prior visa ceasing


A recent decision by the Migration Review Tribunal (“MRT”) highlights the impact of not renewing your visa on time. The applicant, a Pakistani international student was on a student 572 visa. The applicant had extended his student visa a number of times previously. However, in this instance, the applicant did not renew his visa before it expired.

The applicant had however applied for a skilled visa and then a 485 visa. Both visa applicants were refused on the basis the applicant did not have an appropriate current substantive visa. Upon becoming aware of this, the applicant sought an extension of his previous 572 student visa. The department refused the application as the application was made 28 days after the final day of the applicants student visa.

The applicant appealed the departments decision not to grant an extension of his previous student visa. The MRT was quite clear in its decision. The MRT stated the 28 day time limit is a strict limit. As the applicant was not made within this timeframe the department had made the correct decision.

If your visa is soon finishing make sure you make appropriate arrangements before your current student visa ends.

Getting a tourist visa may not be as easy as you think


A recent decision by the Migration Review Tribunal (“MRT”) indicates that even a so called simple visa application process can be complex and drawn out.

The visa applicant was a 61 year old Zimbabwean national. She worked as an office clearer for the past 18 months. She had two adult children and five grandchildren in Zimbabwe as well as an extensive social network. The basis of her application to Australia was to visit her new granddaughter who was born to her child who had recently acquired Australian citizenship.

After reviewing the application the Ministers delegate decided that on the balance of all the information provided, the applicant did not satisfy the “genuine visitor” requirement as per reg. 676.211 of the Migration Regulations. The Ministers delegate made this decision after not only reviewing all relevant information but also personally contacting the applicants employer as well as interviewing the applicant over the phone to verify her claims. The Ministers delegate considered all relevant factors and found there was not sufficient incentive for her to return to her country given the difficult circumstances in Zimbabwe at the time.

The applicants son applied to the MRT to have the decision reviewed. The review applicant argued successfully that although the circumstances were difficult in Zimbabwe, his mothers situation was different. The review applicant went further to provide further assurances of support.

After reviewing all relevant information the tribunal member found the visa applicant did in fact satisfy the genuine visitor requirement per regulation 676.211. In forming this decision, the tribunal member made particular note of the:

  • The fact the visa applicant had an extensive social network in Zimbabwe
  • The fact that she had two adult children in Zimbabwe
  • The fact that she did have employment to go back to and her employer was expecting her back
  • The fact that although life in Zimbabwe was very difficult, she was receiving financial support from her son in Australia which made her quality of life tolerable at the very least.

The tribunal member remitted the case back to the department of immigration with instructions the visa applicant did in fact satisfy the genuine visitor requirement.

This MRT case outlines how even a so called simple application can turn into a very expensive and time consuming exercise. The primary reason why this case was headed to the MRT is because the application did not address a key visa requirement.

Do not make the same mistake. Contact BeConsulting today on enquiries@beconsulting.net.au or www.australianmigrationservice.com.au for your tourist visas.

Appealing your points test assessment – Skills visa’s


Have you had your application for a skilled visa rejected because you didn’t satisfy the points test? Maybe it is worth appealing the decision?

Recently, the Migration Review Tribunal (“MRT”) made a decision which highlighted appealing a decision made by the Ministers delegate is beneficial in certain circumstances.

The applicant, an international student, applied for a skilled residence 885 visa in early 2008. The applicant’s visa was rejected on the grounds that she didn’t satisfy a key visa element – having a sufficient “qualifying score” in the points test. The Ministers delegate correctly calculated the applicant only had 115 points in the points test. The applicant needed 120 points for a subclass 885 visa. The applicant appealed to the MRT to review the decision.

The issue which the MRT dealt with was with respect to the applicants studies. The applicant, at the time of the application had only completed a two year diploma which gave her five points. Subsequent to the application however, the applicant had further completed an MBA from a local university.

The MRT, upon applying the relevant section of the legislation, concluded the applicant, at the time of the hearing, was entitled to a further ten points as a result of her higher level qualification. Accordingly, the MRT remitted the case back to the department of Immigration to make a fresh decision on the basis the applicant satisfied the required 120 points.

This case demonstrates that in certain circumstances it may be beneficial for you to appeal a decision by the Ministers delegate in respect to your skilled visa.

If you have received an unfavourable decision which you would like to appeal, contact BeConsulting now on enquiries@beconsulting.net.au who can assist you with your appeal.

Have your circumstances recently changed? Have you informed the Department of Immigration (“the Department”)? Failure to do so may lead to serious issues later on.


In late 2010, an applicant moved from his current address in Sydney to Melbourne in order to complete his studies. The applicant informed the new college of his new address. However, the applicant did not inform the Department of his new address.

Whilst living at his new address in Melbourne, the Department had made a decision not to renew his visa. The Department sent their decision to his Sydney address. When the applicant returned to his Sydney address he found out about the decision. Unfortunately, the timeframe provided to individuals to apply to the Migration Review Tribunal (“MRT”) had also lapsed.

Irrespective, the applicant applied to have the decision reviewed by the MRT. The MRT stated that it did not have the jurisdiction to hear the matter because the appeal was not lodged within the required 28 day limit. The applicant appealed to the Federal Magistrates Court arguing the Minister and the MRT (hence, the Department), had a positive obligation to further investigate information; specifically, they should have checked a department of Immigration system which would have notified them of his new address.

The Federal Magistrates court held the Department of Immigration and the Migration Review Tribunal were under no obligation to further investigate, on its own accord, matters which were not apparent, available or relevant to the issue.

His honor stated, at 9, that the duty to inform the Department of Immigration lied solely on the applicant and he should have informed the Department

“As a result of the above decisions the Court finds that the Minister had no duty to enquire. The change of address was known to the applicant and he should have notified the Minister of the change” In making his decision, his honor reiterated the provisions of the Migration Act and Regulations which deem an applicant to have received information. Citing previous authorities, with approval, his honor, in part, relied on the following statement.

“What seems to me to be decisive is that each of the deeming provisions focuses upon the physical act of the Minister in giving the document to the person, rather than whether the document is actually received.”

The Decision

His honor decided the MRT and the Department did not have a positive obligation to seek further information, especially when it was not apparent. Because of this, the MRT had no jurisdiction to hear the applicants appeal.

What this means for you?

The implications of this decision are quite clear for all visa holders. If you change your address or there has been any further changes in your circumstances which are significant, let the department know. Do not leave it as it may cause you severe hardship in the future.

IELTS tests strictly interpreted


Have you sat the IELTS test recently? Have you received an overall score of seven or greater but failed to achieve seven in all four bands? The MRT has recently handed down a decision stating the IELTS requirements will be strictly applied even if you have a confounding medical reason.

Background

The applicant, an international student, applied for a skilled 885 visa. The applicant had nominated his skilled occupation as a “public relations officer”. The applicants application was rejected by the department because the applicant did not satisfy the required 120 points for the visa. In fact, the applicant only had 110 points. The applicant appealed to the Migration Review Tribunal (“MRT”).

In the hearing, the applicant conceded that he did not achieve the 120 points. However, the applicant sought to have his English assessment upgraded from competent English to proficient English due to his medical condition - Dyslexia. The applicant received an IELTS score of 6.0 in reading in the first instance.

The tribunal stayed the proceedings and provided the applicant an opportunity to re-sit the IELTS test. Upon re-sitting the IELTS test the applicant achieved the following scores:

  • Listening – Eight (8)
  • Writing – Seven point five (7.5)
  • Speaking – Seven (7)
  • Reading – Six point five (6.5)

Overall score of Seven (7).

Even though the applicants reading score had improved and the applicant had successfully completed two degree’s in Australia, the MRT could not amend the original points test. Accordingly, the MRT affirmed the Minister’s delegates decision to refuse the subclass 885 application. In doing so, the MRT identified the unique circumstances of the case and believed the matter should be referred to the Minister for Ministerial discretion.

This decision by the MRT highlights the importance of achieving the required scores in each individual section of the IELTS test. Clearly, medical reasons for why you did not achieve the required scores will not find favour at the tribunal level.

Even though the applicants reading score had improved and the applicant had successfully completed two degree’s in Australia, the MRT could not amend the original points test. Accordingly, the MRT affirmed the Minister’s delegates decision to refuse the subclass 885 application. In doing so, the MRT identified the unique circumstances of the case and believed the matter should be referred to the Minister for Ministerial discretion.

This decision by the MRT highlights the importance of achieving the required scores in each individual section of the IELTS test. Clearly, medical reasons for why you did not achieve the required scores will not find favour at the tribunal level.

Spousal visas – get them right the first time and avoid going to the Migration Review Tribunal!


A recent decision by the Migration Review Tribunal (“MRT”) outlines the importance of lodging a complete application in the first instance.

The review applicant was an Australian citizen who found her future husband over the internet. After a very short relationship (a period of less than three months) the couple was married in Egypt. The couple lodged a spouse visa in Cairo with photographs of their wedding, invitations, copies of e-mails between each other and general photographs of the couple being a couple. Even with this evidence the department of Immigration rejected the application on the basis the department was not satisfied the couple had a mutual commitment to a shared life as husband and wife or that the relationship between them was genuine and continuing.

The review applicant appealed to the MRT seeking an expedited hearing due to medical and family reasons. Only after both parties submitted significant further information to the MRT did the MRT decide the couple did have a mutual commitment to a shared life as husband and wife in addition to their relationship being genuine and continuing. Accordingly, the MRT remitted the matter back to the department for reconsideration.

This decision highlights the importance of seeking qualified advice in relation to your spousal visas. If you have a spousal visa issue then contact BeConsulting today on enquiries@beconsulting.net.au who will be more than happy to assist you with your visa issues.

For more information about BeConsulting visit www.beconsulting.net.au

Requirements of an international student


Have you had your application for a skilled visa rejected because you didn’t satisfy the points test? Maybe it is worth appealing the decision?

Recently, the Migration Review Tribunal (“MRT”) made a decision which highlighted appealing a decision made by the Ministers delegate is beneficial in certain circumstances.

The applicant, an international student, applied for a skilled residence 885 visa in early 2008. The applicant’s visa was rejected on the grounds that she didn’t satisfy a key visa element – having a sufficient “qualifying score” in the points test. The Ministers delegate correctly calculated the applicant only had 115 points in the points test. The applicant needed 120 points for a subclass 885 visa. The applicant appealed to the MRT to review the decision.

The issue which the MRT dealt with was with respect to the applicants studies. The applicant, at the time of the application had only completed a two year diploma which gave her five points. Subsequent to the application however, the applicant had further completed an MBA from a local university.

The MRT, upon applying the relevant section of the legislation, concluded the applicant, at the time of the hearing, was entitled to a further ten points as a result of her higher level qualification. Accordingly, the MRT remitted the case back to the department of Immigration to make a fresh decision on the basis the applicant satisfied the required 120 points.

This case demonstrates that in certain circumstances it may be beneficial for you to appeal a decision by the Ministers delegate in respect to your skilled visa.

If you have received an unfavourable decision which you would like to appeal, contact BeConsulting now on enquiries@beconsulting.net.au who can assist you with your appeal.

A graduate certificate is not a degree and cannot be used for the six (6) month rule


A recent Migration Review Tribunal (“MRT”) indicated the importance of international students lodging an application for a permanent visa after they complete the right degree.

The applicant had completed a bachelors degree in 2007 and then a Masters of Journalism in 2009. After completing her Masters degree she commenced a certificate three in TESOL.

The applicant went to the department of immigration office to enquire about her visa options. She was told by the relevant department representative that she should apply for a 485 visa after she completed her current studies. The applicant did not tell the department representative that her current studies were at a certificate three level.

After completing her certificate three the applicant lodged an application for a graduate 485 visa. The visa application was refused because it did not satisfy the relevant regulations; specifically, it was not lodged within six months of completing a degree, diploma or appropriate trade qualification.

The applicant appealed to the MRT who affirmed the departments decision not to grant her the 485 visa. The MRT noted that whilst they believed she was given erroneous advice by the department of immigration, the regulations or act did not permit the MRT to take that into consideration. The MRT did note the applicant should have made her 485 application after completing her Masters degree.

This case highlights the importance of applying for your visa at the right time. It also demonstrates that departmental error is not a ground, on its own, for a decision to be repealed.

The Importance of time – lodging an application in time!


In October 2010, the Federal Magistrates Court (“FMC”) handed down a decision which highlighted the importance of submitting any appeal application within the required time.

The applicant applied unsuccessfully for a protection visa. Upon being refused a protection visa by the department, the applicant unsuccessfully appealed to the Refugee Review Tribunal (“RRT”). The RRT, on the 8th September 2009, upheld the original decision – refusing the applicant a protection visa. The applicant appealed to the FMC some eight months later seeking judicial review of the RRT decision.

The Migration Act 1954 (Cth) (“the Act”) provides a specific time limit of 35 days in which an individual can make an application to the FMC in respect to a decision. The Act also gives the FMC discretion to extend this time limit in limited circumstances.

In considering whether to accept an application outside the 35 day time limit the FMC will consider the following elements:

  • The extent of the delay (eight (8) months);
  • The reason(s) for the delay
  • Whether or not there is any merit in the actual application
  • Any prejudice which may be imposed on the respondents (the Minister of Immigration)
  • The impact on the applicant
  • The interests of the public at large

The FMC court took particular interest in the merits of the applicant’s actual case. The FMC concluded it had no other option but to reject the request to for an extension of time considering the very weak case the applicant had as well as the applicant not providing any genuine reason for the delay in making an application.

In handing down the decision, the FMC also made an order the applicant pay the respondent court costs to the sum of $4000.

This case demonstrates the need to be follow the timeframes imposed by the law. This case also demonstrates the need to seek specialist advice in respect to making applications as the court may order you to pay the opposing parties costs.

Two different results from the Migration Review Tribunal (“MRT”)? Which one applies?


A recent Federal Magistrates Court decision highlights the difficulties that applicants face with the unpredictability of the Migration Review Tribunal (“MRT”).

The applicant was an international student who successfully completed a diploma in business administration and a certificate three in hospitality (commercial cookery). After completing his studies, the applicant applied for a previous 880 visa (current equivalent is the 885 skilled independent visa).

In the first instance the Ministers delegate rejected the visa applicant because the applicants’ studies were not closely related to his nominated occupation as a cook.

The applicant appealed to the MRT. The MRT heard the matter and concluded the applicants studies were closely related to his nominated occupation and remitted the matter to the department with appropriate directions.

The department reviewed the applicants application again and came across information that the applicant may have lied in relation to his studies. The Ministers delegate accordingly refused the applicants application. The applicant appealed the Ministers decision to the MRT for the second time.

In the hearing, a differently constituted MRT reconsidered the issue of whether the applicants studies were closely related to his nominated occupation. Arguably, the MRT investigated the matter in more detail this time and concluded the applicants were not closely related to his nominated occupation.

The applicant sought judicial review of the MRT decision through the federal magistrates’ court. The court concluded that the MRT was not explicitly bound by any previous decision. The court went on to say that whilst it is desirable that administrative bodies such as the MRT are consistent, this desired consistency is not a relevant consideration in making findings of fact.

The court subsequently dismissed the applicants appeal and ordered him to pay costs of $5600.

Thinking of withdrawing your application to the MRT?


There are instances where your application for a visa is refused. In these circumstances, you may have a right to appeal the decision to either the Migration Review Tribunal (“MRT”) or the Refugee Review Tribunal (“RRT”).

In the event that you decide to appeal the decision to the relevant tribunal, you should be careful in withdrawing your appeal application. The MRT has recently decided that it did not have the jurisdiction to hear an appeal after an applicant withdrew his appeal.

What this means for you is that once you have made a decision to withdraw an application you cannot go back and change your mind. This decision outlines how important it is to consider your appeal options before you make an application to appeal a decision.

If you have received a decision which you are not happy with contact BeConsulting on enquiries@beconsulting.net.au or visit http://www.australianmigrationservice.com.au for more information.

Compensation ordered notwithstanding the fact the employee pushed a manager and engaged in aggressive behaviour


Fair Work Australia (“FWA”) in the case of Paternella v Electroboard Solutions Pty Ltd [2011] FWA 3323 has handed down a judgement with respect to unfair dismissal of an employee on a 457 visa. This case highlights the stringent approach which the courts require employers to go through in dismissing a foreign worker.

Background

Mr. Paternella (“the applicant”) was employed as a project manager for Electroboard Pty Ltd (“the employer”). Due to a skills shortage, the employer advertised and recruited the applicant from the United States.

Shortly after the appellant arrived in Australia he began making a number of demands for increased remuneration, allowances and better paid accommodation. Due to the difficulty the employer went through in finding the employee as well as the importance of the role, the employer ceded to all the requests even though it was not legally or contractually obliged to do so.

Of concern was not the increased financial demands, it was the manner in which the employee conducted himself with other employees, suppliers and clients. The employer had become increasingly aggressive towards other employees and suppliers. In one instance, the IT manager filed a formal complaint in relation to the employee due to his belittling approach to the IT team.

The employees attitude and aggressive approach continued to be of concern. The employer did speak to the employee in a number of instances but this was informal and not documented. The concern with the attitude of the employee spread so far as a majority of other employees refusing to work with him. In response to the concerns with his attitude, the employee stated that he was a “straight shooter” and his approach was consistent to his approach in past employment in New York.

The issue with the employee culminated to a point where the employee was called into a meeting and informed that he was summarily terminated. The employee responded by picking up the phone and smashing it. When approached in the car park to return the keys to his company car he violently pushed a manager. A few days after the employee was summarily dismissed, he sent a number of abusive e-mails to the managers threatening a campaign of defamation against them.

Legal Submissions Presented

The employee applied to Fair Work Australia seeking remedy for unfair dismissal. The employee submitted that his dismissal was unfair in light of the relevant factors outlined in s 385 of the FWA.

Judgement

Commissioner Astbury held the dismissal was harsh for want of notice.

In handing down his judgement, the commissioner paid particular attention to the employers lack of candor. Whilst the commissioner accepted the employer had spoken to the employee on a number of occasions about his attitude and aggressive behaviour, the commissioner noted at no time did the employer effectively communicate the employees position may be in jeopardy if he continued to act in the way he did. Specific reference was made to the fact the employee was not informed of the purpose of the meeting in which he was terminated.

In forming his conclusion, the Commissioner also actively considered the implications of dismissal on the employee. If the employees’ employment was terminated then, according to the Migration Act he employee had 28 days to either leave Australia or find another approved employer. According to the Commissioner, this requirement placed the employee in an “extremely vulnerable position” which the employer needed to consider before summarily terminating the employee.

Upon taking into consideration all the relevant factors, the Commissioner concluded the employee was unfairly dismissed because the dismissal was ‘harsh’. The employee was awarded $3270 in compensation.

Key Lessons

This case highlights a number of key principles. The predominant reason why the application for unfair dismissal was successful was because the employer failed to communicate their concerns to the employee in an unambiguous and formal manner. Performance management discussions can be difficult, however, defending an unfair dismissal case is infinitely more difficult, costly and at times embarrassing.

If you have a performance issue with any of your employees, then ensure it is bought to their attention and document. It is important to also give the employee a period of time in which to improve. This process does not need to be strictly followed in cases of serious misconduct – theft for example.

If you have an employee whose presence in Australia is contingent upon a valid visa (457 for example) then you need to ensure all reasonable aspects of procedural fairness are afforded to the employee.

If you have any employment law / performance management issues which you need assistance on please contact Usman Bhatti on usman@beconsulting.net.au or 0402 564 011