Table of Contents

Module 1 – Immigration law in context.....................................................................................3

1.1 Border Theories................................................................................................................3
1.2 Origins of sovereignty......................................................................................................3
Module 2 – Evolution and Overview of Australian Migration Law..........................................5
2.1 Early influences on Australian migration laws................................................................5
2.2 Federation: Centralised control of immigration...............................................................5
2.3 Post-war developments in migration................................................................................6
2.4 Overview of Migration Legislation..................................................................................7
Module 3 – Key parts to the migration legislation.....................................................................9
3.1 Visa Structure and other concepts....................................................................................9
3.1.1 Foundation concepts....................................................................................................10
3.1.2 The essential nature of a visa......................................................................................10
3.3 – Valid visa application requirements............................................................................11
3.3.1 – Legislative constraints..............................................................................................12
Module 4 – Introduction to Refugee Law................................................................................14
4.1 What is a refugee?..........................................................................................................14
4.2 Refugee Status Under UN Refugee Convention............................................................15
Module 5 – Refugee Law in Australia.....................................................................................17
5.1 Offshore refugee and humanitarian visas.......................................................................17
5.2 Onshore Protection Visas...............................................................................................17
5.3 – Unauthorised Maritime Arrivals.................................................................................19
Module 6 – Temporary Visa System 1 (Temp Visas)..............................................................21
6.1 – Bridging Visas.............................................................................................................21
6.1.2 Introduction to Bridging Visas 2.................................................................................22
6.1.3 Introduction to Bridging Visas 3.................................................................................23
6.2 Visitor Visas...................................................................................................................24
6.3 – Student visas................................................................................................................25
6.4 Temporary Residence Visas...........................................................................................27
Module 7 – Australian Visa System 2 (Family Visas).............................................................29
7.1 Partner Visas..................................................................................................................29
7.1.1 End of Partner Relationship........................................................................................31
7.2 Child Visas.....................................................................................................................33
7.3 Parent Visa.....................................................................................................................33
7.4 Other Family Visas........................................................................................................34
Module 8 – Australia’s Visa System 3 (Permanent, employer sponsored and skilled visas). .36
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8.1 Employer Sponsored Visas............................................................................................36

8.2 – Intro to General Skilled Visas.....................................................................................37
8.2.1 - Temporary Skilled Visas..........................................................................................38
8.2.2 Skilled Visas and SkillSelect......................................................................................39
Module 9 – Visa Compliance and Cancellation.......................................................................42
9.1 – Border Security...........................................................................................................42
9.1.1 – Unlawful Non-Citizens............................................................................................43
9.2 – Introduction and Approach to Visa Cancellation........................................................43
9.2.1 – Natural Justice Procedures.......................................................................................44
9.3 – s 109 Cancellation Grounds........................................................................................46
9.3.1 – S 109 Cancellation Process......................................................................................46
Module 10 – General and Character Cancellation Powers......................................................48
10.1 – Section 116 Cancellation Grounds............................................................................48
10.2 – Cancellation Process.................................................................................................49
10.3 – Assessing Character Cancellation.............................................................................50
Module 11 – Merits Review of Visa Decisions.......................................................................52
11.1 – Introduction to Merits Review..................................................................................52
11.1.2 – Jurisdiction of the AAT..........................................................................................53
11.2 – Adding the deemed notification period.....................................................................54
11.3 – Part 5 reviewable decisions.......................................................................................54
11.3.1 – Part 7 reviewable decisions....................................................................................55
113.2 – AAT General Division Process...............................................................................56
Module 12 – Judicial Review in Migration Decisions.............................................................58
12.1 Attempts to thwart judicial review...............................................................................58
12.2 Jurisdictional error trumps privative clause.................................................................59
12.3 Judicial Review process...............................................................................................60

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Module 1 – Immigration law in context

1.1 Border Theories
Immigration should be controlled.

Communitarians, partialists argue:

 Nation state is a distinct community
 With right to self determination
 Citizens should be prioritized over non-citizens

Global liberals and utilitarians argue:

 States are moral agents and have moral obligation to
 Treat citizens and non-citizens equally
 Immigration restrictions gross violation of human rights
 Open borders policy

Radical challenge to current practice

Open borders – Restrictions may be imposed for security reasons

Closed borders – Up to the state to form its own policies with respect to entry and those
policies should reflect values of citizens of that state

Australian Constitution
Australia has long taken the stance of closed border approach to immigration. The Australian
Constitution allows parliament the power to make laws on:
 Aliens (non-citizens)
 Immigration

Silent regarding citizenship

Border control continues to drive our regional engagement. The excision of outlying
Australian island territories (and the mainland) from Australia’s migration zone continues, in
the face of international human rights obligations to the contrary – Crock p11

Unlimited power to make migration laws?

 Not overarching human rights act
 Limited influence of international law.
o Making immigration law in Australia is a purely domestic decision, based on
absolutely right to decide.

1.2 Origins of sovereignty

Strict control of borders. For example:
 MV Tampa Sept 2001
 Rescued 433 asylum seekers

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 Australian government refused entry to Australia waters

New era of border control began
 Pacific Solution and Operation Sovereign Borders
Sovereignty as justification
Nation states: Absolute control over entry = Absolute sovereignty
 A fixed concept
 Or contingent on historical events?

Definition of sovereignty:
 Reciprocal recognition
 Within a group of nation states
 Of each state’s rights to govern and control territory

Migration – Right to control entry into and conditions of stay within territory

Restrictive migration
 Human migration for millennia
 Fixed borders and border control a 20th century development

Europe pre-sovereignty
 No nation-state
 Collection of smaller and larger political units
 Composite-states

Composite states
 Larger political units
 Often separated by sea or another stat
o Spanish Hasburg monarchy
o Hohenzollern Brandenburg monarchy
o England and Ireland

Nation-state sovereignty
 Emerged gradually due to events in Europe 1300-1648
 Treaty of Westphalia
o Birth of sovereignty

Sovereignty limits
Presumption:
 Nation-state has absolute control over entry into territory
 Reliance on early legal scholars to justify this position
o Lawful reason to enter – economic reasons
o Necessity
 Vattel: State has duties as well as rights – Free passage and residence

Limitation ignored
 Deep seated belief in absolute sovereignty
 Important to reflect on how history impacts the present
 And how history can inform the future

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Module 2 – Evolution and Overview of Australian Migration Law

2.1 Early influences on Australian migration laws

1846 – Early waves of migration controlled

Gold Rush
 Migration boom
 Non-British Europeans
 Non-European – Chinese

Other push factors

 Irish – Potato famine
 Scots – Clearances
 Europeans – Wars, etc.

Transfer of power
 Australian Colonies Act 1850
o Regulation of entry to Australia
o Transferred from colonial authorities in London
 Each colony now able to administer own immigration policies

Race-based immigration restrictions

Act to Make Provisions for Certain Immigrants 1855 (Vic)

 First ever race-based immigration restriction legislation

Nafziger’s article

 Toy case important precedent for absolute sovereignty

 Nafziger critical of Toy’s counsel

o No argument re freedom of movement
o No direction regarding exceptions to State’s right to exclude
Federation
 Federation debates focus on white immigration
 Reasons for restrictions on non-white immigration
o Contamination of white population
o Undermining political systems of Commonwealth
o Prevent racial conflicts seen elsewhere
 Decisions made at Federation would impact migration law for the next century, and
continue today.

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2.2 Federation: Centralised control of immigration

Debates at the 1891 Federation Convention reveal desire to:
 Control immigration
 Restrict non-white immigration
Australian Constitution
 Section 51 (xix)
o Naturalisation and aliens
 Section 51 (xxvii)
o Immigration and emigration

Immigration Restriction Act 1901

Section 3 (IRA 1901)

 Control of immigrants
 Prohibited immigrants denied entry
o Section 3 IRA
o Failed dictation test

Dictation Test
 Any European language. Not just English
 Applied also to immigrants already in Australia
 1903: 13/153 applicants passed

Judicial interpretation of new power

Case law on ‘immigrant’
 Immigrant not defined in IRA
 Ah Sheung v Lindberg [1906] VLR 323
o ‘Immigrant’ temporary entrant with domicile and naturalised
 Potter v Minahan [1908] 7 CLR 277
o Majority of HC held that Minahan was not an immigrant
o Test: Did he remain a constituent part of the Australian community?

Tests of community applied in:

Ah Yin v Christie (1907) 4 CLR 1428
 Ah Yin born in China
 Father (Chinese, naturalised) domiciled in Australia
 Ah Yin held to be an immigrant. Failed dictation test, deported

Donohoe v Wong Sau (1925) 36 CLR 404

 Born in Australia to parents naturalised Australians
 Raised in Chine and sought to re-enter as spouse of NSW resident
 Wong Sau held to be an immigrant, failed dictation test, deported.

2.3 Post-war developments in migration

Post-war, new statute
 Immigrant Restriction Act 1901 turned to Migration Act 1958
 Ending dictation test

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Migration Act 1958

 Similar to IRA: Machinery legislation
o Departmental policies provided the detail
o Officers had wide discretion to apply these policies
o No objective visa criteria
 Policy reigned supreme
 Ended White Australia Policy

Objective Criteria
 Criticism of Migration Act and policies. No transparencies
 Recommendations and reviews
 Increase in judicial review of department decisions

Migration Regulations 1989 (Cth)

 Introduced objective visa criteria

2.4 Overview of Migration Legislation

Migration Act 1958
 Legislation administered by Minister for Home Affairs relating to immigration
 Control non-citizens in Australia
 Avenues of review and appeal
 Regulates migration agents
o Not as relevant after March 2021

Migration Act 1994

 Supplements Migration Act
 Provides the technical details eg visa application fees

The Minister
 Act refers to the minister, refers to Department case officers that do that work
 Delegates his or her power to officers of the Department
 Except when stating ‘the Minister personally’

Citizenship Legislation

Australian Citizenship Act 2007

 Citizenship by birth, descent or grant
 Deferral, loss and resumption of citizenship
Australian Citizenship Regulations
 Supplement the Citizenship Act
 Prescribe fees and procedures for citizenship applications

Other migration legislation includes:

 Immigration (Guardianship of Children) Act (Cth) and regulations
 Migration (Skiing Australians Fund) Charges Act 2018 (Cth)
 Migration (Visa Application) Charge Act 1997 (Cth)

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 Migration (United Nations Security Council) Regulations 2007 (Cth)

Other relevant legislation includes:

 Education Services for Overseas Students Act 2000 (Cth) and Regulations 2001
 Social Security Act 1991 (Cth) and Social Security (Assurance of Support)
Determination
 Other Acts that amend the Migration legislation

Migration legislation can be found under the Home Affairs portfolio, using LEGENDcom

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Module 3 – Key parts to the migration legislation

3.1 Visa Structure and other concepts
Visa Classes and Subclasses
 The visa structure is made up of
o Visa Class; and
o Visa Subclass
 Each visa class contains one or more visa subclasses

Schedule 1 to the Migration Regulations lists the visa classes and the subclasses of visa
within each class.
 Under s46, applicants must apply for a visa of a particular class
 To be eligible for the grant of that visa class, they must meet the criteria for one of the
visa subclasses in that visa class

Substantive and Non-substantive Visas

Take notice of ‘substantive’

Section 48: A non-citizen in the migration zone who does not hold a substantive visa and who
has either been refused a visa or had a visa cancelled cannot apply for any other visa other
than a prescribed visa? ‘Substantive’ visa defined under s5 of the Migration Act.

 Substantive visas take precedence over non-substantive visas (exception: special

category visas)
 Once a substantive visa is granted, it automatically ceases any previous substantive
visas held (other than special purposes visas, see ss82 and 33)
 A substantive visa can be temporary or permanent
 A non-substantive visa is always temporary

Section 31: Most visas are prescribed in Schedule 1 of the Migration Regulations
 Some visas are found elsewhere, see s31

Action words include:

 Granting of a visa occurs when a decision maker makes a decision to approve a visa
application
 Cancelling cancels the visa and does affect the immigration status of the person. Upon
cancellation, a person becomes an unlawful non-citizen and is subject to mandatory
detention.
 Evidencing is the physical and separate manifestation of the grant, now only by
electronic means with no level or other evidencing
 Voiding renders a visa label inoperative but does not render visa invalid and
immigration status not affected usually done after re-evidencing

With the Department no longer placing visa labels in passports upon a visa grant, visa holders
as well as employers, schools and other institutions can used VEVO to check a visa status.

Visa Entitlement Verification Online (VEVO) is a free, online service, accessed through the
Department website which allows visa holders and registered Australian organisations to
check the details and entitlements of a visa.

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Do always advise your client to retain their visa grant letter and keep a copy of it with their
passport when they are travelling.

Passport Requirements
 Visa applicants must hold a valid passport at the time of visa grant
 Unless unreasonable e.g.: applicants for refugee and humanitarian and protection
visas
 This allows the Department to collect passport details for streamlined and efficient
entry processing at immigration clearance ports
 Passport requirements can be waived in some circumstances e.g.: emergencies
 If a person gets a new passport between visa application and visa grant, they should
tell the Department in order to avoid delays and boarding.

3.1.1 Foundation concepts

Concept of Lawfulness
Migration Status: Lawful or unlawful?
 Lawful: Migration Act, s13
 Unlawful, Migration Act s14
Role of Non-Substantive Visas
 Bridging Visa
 Criminal Justice Visas and
 Enforcement Visas

Essential role to keep non-citizen lawful while in Australia

Definitions can be found in:

 S5 of the Migration Act
 Regulation 1.03 of the Migration Regulations
 Start of each subclass in Schedule 2 under interpretation
 Other parts of the Act and Regulations as well

Legislative Instruments
 Made in the exercise of a power delegated by Parliament
 Has legal authority – authorized by the Minister
 As they are supported by legislation, they are legally binding
 Ise used to change the law quickly by replacing outdated instrument

Ministerial Directions
 Authority is from s499 of the Migration Act
 Permits the Minister to make written directions in performance of his or her functions
 Decision makers are obliged to comply with directions made

3.1.2 The essential nature of a visa

Broad Requirements
 Sch 1 – Valid application requirements
 Sch 2 – Visa subclass/program specific requirements
 Defined terms

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 Various schedules in the Migration Regulations

Building a visa – Methodology

1. Visa Subclass
2. Sch 1 = Validity requirements
a. Legislative instruments Ministerial Directions, PAM and case law
Definitions
3. Eligibility requirements

1. Consider schedule 1 and 2 as checklists

2. Diverge and delve deeper by examining the definitions and information contained in
other parts of the legislation, specifically the schedules

Schedule 1
Program specific requirements
 Schedule 1 (Valid Application)
The requirements listed in schedule 1 reflect what s46 of the Migration Act regards as a valid
application

Schedule 2
Program specific requirements
 Schedule 2 (Eligibility requirements): These are the nuts and bolts for building your
visa
Sets out the eligibility requirements for visa grant, refers to other schedules and definitions
within the regulations (as relevant), refers to ministerial directions and legislative instruments
(as relevant)

Health Requirements
 Panel doctor examination
 Chest Xray
 HIV test
 Vaccinations
o PIC 4ScH005/4007/requirements

Character Requirements
 Penal or Police clearance PIC 4001
 Security clearance PIC 4002

3.3 – Valid visa application requirements

Legislative Requirements:
 S 45 + 46 MA
 Schedule 1 MR
 Part 2 Div 2.2 MR (eq reg 2.07)

Section 46 Requirements 1
Visa Application must:
 Specify visa class
 Satisfy criteria prescribed in Regulations
 Include residential address of visa applicant

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Section 46 Requirements 2
 Pay visa application charged
 Not be constrained by s 48 etc
 Not hold visa with No Further Stay Condition
 Provide personal identifiers

Reg 2.07 Requirements

 Approved visa application form used
 Correct visa application charge must be paid
 Other matters in schedule 1 satisfied
 Schedule 1 may prescribe other matters via legislative instruments
 Applicant’s residential address included in form

Reg 2.10
 Directs where application to be made
 But only if schedule 1 does not provide location of application

Schedule 1
This schedule sets out the specific ways in which a non-citizen applies for a visa of a
particular class. An application that is not made as set out in this Schedule is not valid and
will not be considered, see the Act.

Visa Classes
Remember that most of the visa classes are in Sch 1
E.g.:
 Child (Migrant) (Class AH) Item 1108

Front Loading
 Legislators continue to add more criteria into schedule 1
 Therefore, more requirements to be met to ensure a valid visa application
 Significant issue

3.3.1 – Legislative constraints

What is a legislative constraint?
S 46(1)
 Application won’t be valid if it is prevented by the following provisions
o 48
o 48A
o 91E
o 91K
o 91P
o 161
o 164D
o 195
o 501E
o 46A

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o 46B
o 41(2)(a)

Section 48
 Significant
 Could apply to any visa holder in Australia
 Assessable

Elements
 Non-citizen
 In migration zone
 Does not hold a substantive visa

Since last entry to Australia

 Applied for and was refused a visa (except refusal of bridging visa or refusal on
character grounds)
o Whether or not finally determined
 Has had a visa cancelled (except on character grounds)
 Cannot make a valid visa application
 Except for visas prescribed in regulation 2.12

Application
Loophole – leave Australia
Ok if hold substantive visa

Section 41(2)(a) and 41(2A)

 8503 – Not able to make any visa application except a protection visa
 8534
 8535
 8540

Unless Minister waives the condition (reg 2.05(4) (4AAA) (5)(5A)

8503 Waivers
 In writing
 Major changes to situation
 Due to compelling and compassionate circumstances
 Which arose after visa was granted
 And they had no control over the changes

Practice Point
 Cannot lodge valid application
 Until waiver has been granted

NFS condition applies if NFS on last visa held, therefore if non-citizen does not hold valid
visa, is subject to detention.

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Module 4 – Introduction to Refugee Law

4.1 What is a refugee?

Common meaning: Flight from danger

Legal definition: 1951 UN Convention Relating to the Status of Refugees and 1967 Protocol.
Article 1A(2)

Intention
 Broad
 Provide universal protection
 For all categories of refugees
 Mass movements and individual applications
 Motivated by preceding 30 years of mass displacement

History
 What happened to people seeking safety prior to UN Convention?
 European focus because the UN Refugee Convention is a product of European
political focus

Historical responses to displacement

 Varied but easier
 Medieval rulers: Universalist approach
 Mid 1800’s onwards: acknowledged induvial liberty and promoted enrichment
 Example: Huguenots fled from France due to religious persecution
 Origin of word ‘refugee’

Westphalian system of nation states complicated the free movement of persons by confirming
more rigid territorial boundaries – Nafziger 1983

Beginning of border controls

Hathaway
 Political self-determination
 Within defined territory
 Common culture
 Use of immigration to shape nation
 Economic interest over humanitarian

Enforcing border control

Maley
 Need sophisticated infrastructure
 Income
 Passport and visas
 Refugees not first choice for migration

Response to unprecedented displacement

 Europe forced to manage huge numbers of displaced persons
 1933 Convention

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 1938 Convention
 1951 Convention Relating to Status of Refugees

4.2 Refugee Status Under UN Refugee Convention

Unprecedented displacement after WWII
 10 Million refugees
 Built on 1933 and 1938 Conventions which where:
o Limited to specific groups
o Not universal
 Searching for a way to share the burden
 1967 Protocol

Non-refoulment Article 33
 A refugee should not be returned to a country where he or she faces serious threats to
his or her life or freedom
 Part of customary international law
 Therefore, applies to non-signatories of Convention

Other rights
1. Non-Expulsion 32
2. No punishment for illegal entry 31
3. Work 17-19
4. Housing 21
5. Education 22
6. Public relief and assistance 23
7. Freedom of religion 4
8. Court access 16
9. Freedom of movement 26
10. Identity and travel documents 27, 28

Article 1F Exclusion clauses

 Crimes against peace, war crimes and crimes against humanity
 Serious non-political crimes
 Acts contrary to purposes and principles of UN

Article 1C Cessation clauses

 Change in personal circumstances of refugee caused refugee
 Change in objective circumstances relating to refugee claims
 Such that international protection no longer justified
 Fundamental durable and effective (objective circs only)

Refugee Convention is international law

Sources of international law include:
 General principles of law
 Customary international law
 Convention in force between countries

Effects of international law

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 No effect in domestic law

 Until incorporated into domestic law
 Refugee Convention was directly incorporated not Australian domestic law until 2014

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Module 5 – Refugee Law in Australia

5.1 Offshore refugee and humanitarian visas

Refugee and Humanitarian (Class XB)
 200 Refugee
 201 In-Country Special Humanitarian
 202 Global Special Humanitarian
 203 Emergency Rescue
 204 Women at Risk

Validity and eligibility criteria for Class XB Visas includes:

 Section 46 and regulation 2.07
 Schedule 1
o Legislative instrument LIN 20/169
o From 842 (and 681 if proposer)
o No VAC (if only individual)
o Applicant outside Australia
o Note UMA barriers to Valid applicates
 Schedule 2
 Policy documents
Only 14.03% visas were granted in 2019/2020 in class XB

Proposers
 No sponsors in the Humanitarian Program – Instead they are proposers who can be
individuals or organisations
 Optional for all class XB visas except SC 202 (required)
 Proposer obligations: they pay airfare and assist in settlement

Split Family
Member of immediate family of a person granted an SC266 of Offshore R and H is eligible
for a visa to Australia within 5 years of the original visa applicant.
Note women at risk
Note processing priorities

5.2 Onshore Protection Visas

Australian Refugee and Humanitarian visas – Onshore Visa
 806 – Protection
 735 Temporary Protection
 790 Safe Haven Enterprise Visa
Applicant must be in the migration zone at the time of the application and visa grant.

Onshore Protection Visa

Applicable Law – Subclass 866 Protection Visa
 S 35A Protection visas – classes of visas
 S 36 Protection visas – Criteria (Critical legislation for procedures)
o In addition to schedule 1 and 2 criteria, refugee or significant harm
 Refugee definition – S 5H-5M
Other requirements for Valid Visa Applications are found in section 46

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Item 1401 Protection (Class XA) information slide 1.9

Eligibility Criteria for SC866

 S 36(2)(a) – Refugee protection
o Definition 5H
 S 36(2)(aa) – Complementary protection
o See Section 36(2A) (2B) (2C) Migration Act
Convention definition of ‘refugee’ under Article 1A(2) of the Convention
Elements of refugee set out in section 5H and 5J
Reasons for The Convention Grounds include:
 Race
 Religion
 Nationality

Membership of a particular social group may be a controversial Convention ground.

 Applicant S v MIMA (2004) 217 CLR 387
 Conscripts able bodied young men , caste-based groups, gender based, homosexuals,
academics
 Section 5L: Shared characteristic other than persecution, innate, immutable or
fundamental to identity or distinguishes group from society.

Political Opinion
 Case law indicates a broad understanding of political opinion
 Includes right to freedom of expression and political beliefs
 Imputed political opinion also accepted

Complementary Protection
 Significant harm
 Not necessary to link 5J reason

What is Complementary Protection?

 International obligations arising from Australia being signatory to ICCPR, CAT and
CROC
 14 October 2011 – Complementary Protection law
 Protects people who do not qualify as refugees but run the risk of significant hard if
returned home to country
 Law broadens criteria for refoulment for asylum seekers beyond narrow refugee
definition

Significant harm – section 36(2A)

a) Arbitrarily deprived or his or her life; or
b) Death penalty will be carried out; or
c) Subjected to torture; or
d) Subjected to cruel or inhuman treatment or punishment; or
e) Subjected to degrading treatment or punishment
Significant harm would not arise in s 36(2B)
Exclusion clauses in s 36(2C)

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Review of Onshore Protection Visa Decisions

 Merits Review
o AAT – refugee division
 Judicial review
o Privative clause
o Jurisdictional Error
o Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
 Ministerial Intervention s 417 MA

5.3 – Unauthorised Maritime Arrivals

Legislative bars on UMA applications
Boat people
 Asylum seekers arriving by boat in Australia or to an Australian territory with a visa
 Historically, were able to lodge a protection visa application
2001 Tampa Affair led to legislative changes:
 Arrival at excised offshore place
 Barred from lodging visa application
 Sent to Nauru, PNG – Pacific Solution

UMA’s barred from seeking protection

 Section 46A prevents these asylum seekers from seeking protection in Australia
 Note also Class XA Schedule 1 Item 1401(3)(d)
 Migration and Maritime Powers Amendment (Resolving the Migration Legacy
Caseload) Act 2014 – Any UMA arriving from 1 Jan 2014 will not be resettled in
Australia

Legislative Changes
Before July 2013 UMA claims still processed by Australia
 Before August 13 2012 – Claims were processed according to a ‘Protection
Assessment Process.’ – This process was not part of the migration legislation
 After August 13 2012 – Can be removed to a regional processing country which
processes their claims under their own laws.
o SS 198AA-B
o PNG and Nauru
o Ministerial Discretion not to transfer
 From July 2013 UMAs transferred to PNG and Nauru for processing and settlement
Unauthorized Maritime Arrival – S 5AA
Excised Offshore Place – S 5(1)
Fast-track applicant – s 5(1)

Assessment process
 Applicants are processed by departmental officers
 Interview is conducted
 If refused, case referred to independent Immigration Assessment Authority – reviewed
and decided on the papers

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Temporary Protection Visas (TPV)

 TPV is a subclass 785 visa
 Need to satisfy the s 36 and schedule 2 criteria
 Visa is valid for three years, at the end of that period, to remain in Australia, they will
have to apply for another subclass 785 visa or SHEV subclass 790 and prove they are
eligible
 Able to work or study in Australia and access job matching, Medicare and social
security benefits.

Safe Haven Enterprise Visa (SHEV)

 Must satisfy s 36(2)(a) or (aa) and schedule 2 including regulation 790.227 – Minister
is satisfied visa is in national internet
 Visa is valid for 5 years
 Able to work or study in Australia and access Medicare and social security benefits
 Possible pathway to a permanent visa after meeting eligibility period – by applying
for a range of prescribed permanent visas (see reg 2.06AAB)

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Module 6 – Temporary Visa System 1 (Temp Visas)

6.1 – Bridging Visas

What is a Bridging Visa?
 Bridging visas are used by the Department to give lawful status to non-citizens
who would otherwise be unlawful
 Temporary visa but not a substantive visa
 They are a type of compliance visa

Types of Bridging Visas

 Bridging A (class WA, sub 010)
 Bridging B (class WB, sub 020)
 Bridging C (class WC, sub 030)
 Bridging D (class WD, sub 040, 041)
 Bridging E (class WE, sub 050, 051)
 Bridging F (class WF, sub 060)
 Bridging R (class WR, sub 070)

Applying for a Bridging Visa

 Onshore application only (except for BVF)
 Section 46 applies
o Must be a valid application
o Schedule 1 Criteria must be met
 S 72 and reg 2.20
 Automatic or separate application

Automatic Application for a BV

Valid application for an offshore substantive visa = Valid application for a bridging visa (no
separate application, it is automatic)

Associated Bridging Visa

 The associated bridging visa provides lawful status to an applicant during the
processing of their substantive visa application.
o Until 35 days after the final decision on the application (including any merits
review)
 Note also s 48

What is an Associated BV?

 Depends on visa status at the time of application for substantive visa (non-citizen)
o Valid substantive visa = BVA
o Unlawful and undetected = BVC
o Unlawful and Department compliance = BVE

Applying for a Bridging Visa

Separate Application

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 Review of visa cancellation

 Judicial review
 Ministerial intervention
 Permission to work or a variation of the work conditions
 Permission to travel
 Invalid application
 Unlawful making voluntary departure arrangements
 Seeking release from detention
 Of interest in relation to trafficking matter.

6.1.2 Introduction to Bridging Visas 2

Which BV when?
 BVA (010): Non-citizen
o Holds a valid substantive visa or BVA/B
o Not in detention
o Making another application for another substantive visa that can be granted
offshore
o Applying for merits or judicial review
o Minister has applied for a judicial review
o Already hold BVA or BVB without work rights and have compelling need to
work
o Revocation or setting aside of visa cancellation and substantive visa yet to be
reinstated
 BVB (020)
o Hold BVA or BVB
o Not in detention
o Substantial reasons to travel outside Australia during visa application
processing
o Return to Oz not contrary to public interest
 BVC (030)
o Unlawful (do not hold a substantive visa)
 Had not held BVE
 Immigration cleared or bypassed clearance and has not come to
Department notice within days of arrival
 Not in detention
o Making substantive visa application; or
o Lodged judicial review application; or
o Minister commenced judicial review
 BVD (041 and 041)
o Not common
o Unlawful or about to be unlawful
o Granted for 5 working days to enable something to happen
 Substantive visa application to be made; or
 Compliance officer available to interview
 BVE (050)
o Threshold requirements

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 Not eligible non-citizen per regulation 2.20(7,8, 9, 10, 11: Certain

persons who had bypassed immigration clearance and come to
Department notices within 45 days of arrival
 Unlawful or hold BVE
 Must also meet one criteria
o Making application for substantive visa; or
o Have applied for merits review; or
o Making suitable arrangements to depart Australia; or
o Applied for substantive visa in Australia; or
o Applied for substantive visa in Australia; or
o Applied for judicial review of decision on substantive visa application or
Minister has applied for judicial review; or
o Hold BE without work rights and have compelling need to work
o Visa has been cancelled and applying for revocation or merits/judicial review
o Merits/judicial review of Citizenship Act decision
o Seeking Ministerial Intervention (eg: s 351, s 48A)
o In criminal detention
o In detention and made application for BV
 BE (051)
o Eligible non-citizen in regulation 2.20(7, 8, 9, 10, 11)
o Had applied for protection visa and provided written undertaking that they will
depart Australia or present themselves for removal
 BVF (060)
o Person is of interest to police in relation to trafficking offences
o Granted either onshore or offshore
 BVR (070)
o Removal Pending Bridging Visa
o For unsuccessful protection visa applicants in detention for long periods
o Allows them to stay in the community pending their removal from Australia

6.1.3 Introduction to Bridging Visas 3

Bridging visa conditions
 Permission to work
o Compelling need to work
 Financial hardship – not defined

Other conditions include

 Makes a valid application within time period
 Does not study
 Pays surety for release from detention
 Reports to immigration
 Resides at specified address and notifies change
 Pays costs relating to detention and removal

When Bridging Visas Begin

 A substantive visa takes precedence over a Bridging visa therefore BV’s begin:
o Upon grant only if person does not hold substantive visa; or

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o When substantive visa ceases; or

o If a child is born to a parent holding a bridging visa

When Bridging Visas Cease

 Cancelled
 Substantive visa granted
 More beneficial BV granted
 Visa holder leaves Australia (unless they hold a BVB)
 Period of BV validity expired
 Substantive visa cancelled

When Associated BV Ceases

 Upon visa grant
 35 days after a decision to refuse the visa
 35 days after merits review decision
 28 days after judicial review proceedings completed
 35 days after withdrawal of application
 35 days after decision that application is invalid
 Upon cancellation of substantive visa

Legislative Basis
 S 5(1) – Not a substantive visa
 S 73 – Power to grant bridging visas to be ‘eligible non-citizens’
 S 74 – Bar on second application within 30 days of the refusal of first application (or
30 days of first review decision)
 S 75 – Deemed grant for applicants in detention
 S 82(3) – Any bridging visa held will cease upon grant of substantive visa (other than
a special purpose visa); and
 S 68(4) – Reactivation of bridging visa ceased under s 82(3)
 R2.21 – Most beneficial visa – s 68(4)
 BACDREF

6.2 Visitor Visas

Purpose
 Tourism
 Visiting friends and relatives
 Business
 Medical reasons
All visitor visa applicants have to comply with Schedule 1 and 2 requirements of the
legislation.

Categories
 Visitor subclass 600 Visa
 Electronic Visas
 Medical Visa subclass 602
 APEC Business Travel Card
 Proposed Five year temporary sponsored visa for parents

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Subclass 600 Visa Streams

Class FA Item 1236 – Can apply for Visitor Visa under one of the following streams.
 Tourist stream 600.22
 Sponsored Family Stream 600.23 – To see family and friends
 Business Visitor Stream – 600.24
 Approved Destination Status (or ADS) stream 600.25
 Approved Destination Status (or ADS) stream 600-25 – For designated tour with
registered Chinese travel agents from China
 Frequent Traveller Stream – 600.26

Sponsored Family Stream – 600.23

 Must be sponsored
 Sponsor to lodge Form 1149
 Applicant to lodge Form 1418
 Application processed in Australia
 Security bond – A discretion

Electronic Visitor Visas

 Electronic Travel Authority (ETA) visa (SC 601 – ETA is applied from outside
Australia (Class UD Item 1208A)
 eVisitor Visa (SC 651) – lodged via departmental website (Class TV Item 1218AA)

Medical Visa Subclass 602

 Class UB Item 1214A
 For people seeking medical treatment/medica consultation
 Confirm arrangements made for treatment in Audtralia
 Have funds to pay for medical treatment and can support themselves in Australia,
include meeting travel costs
 Treatment in public hospital has been approved by the treating hospital

APEC Business Travel Card

 APEC Business Travel Card (ABTC) is a travel facility for business purposes
 Preclearance by APEC country
 No separate visa application
 ABTC is valid for 5 years
 ABTC is used in conjunction with a valid passport

6.3 – Student visas

Student Visas
Class TU Item 1222
 Subclass 500 Student Visa
 Subclass 590 Student Guardian (for guardians of students under 18)

Key Schedule 2 Criteria

 CI 500.211 Enrolled in a course of study
 Cl 500.212 Genuine applicant:
o Genuine intent to stay temporarily
o Intent to comply with visa conditions

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 Cl 500.213 Evidence of English language proficiency

 Cl 500.214 Evidence of sufficient funds
 Cl 500.215 Evidence of adequate health insurance
 Plus, other criteria include Schedule 4 PIC, Schedule 5…

Student Visa – Assessment

Student visa applicants are assessed under 2 categories
 A streamlined student visa applicant; or
 A regular evidentiary student visa applicant

Streamlined evidentiary requirements under SSVF

Beneficiaries from the streamlined SSVF evidentiary requirements:
 Student enrolled at education providers with the lowest immigration risk ratings
 Students from countries with the lowest immigration risk ratings; and
 Students enrolled at education providers with medium immigration risk ratings,
provided the student’s country of citizenship has a low or medium immigration risk
rating.

Immigration Risk Ratings

Document Checklist tool
 Updated every six months
 Uses Document Checklist tool and see the difference between streamlined and regular
evidentiary requirement streams

Genuine Temporary Entrant (GTE) Test

CI 500.212
 Integrity measure for proper use of student visa program
 Not to be used as a way to get ongoing residency in Australia
Assessing genuine intent
 Dept case must assess applicant’s genuine intent
 How to assess state of mind
 Direction 69: Assessing the Genuine Temporary Entrant Criterion
o Made under s499 of the Migration Act

Direction 69
 Applicant’s circumstances
 Applicant’s immigration history
 If applicant is under 18 years old, the intention of their parent. legal guardian or
partner
 Any other relevant matter

Factors
 Applicant’s circumstances in home country and in Australia
o Reasonable reasons for not studying at home
o Personal ties to home country or Australia and significant incentives
o Economic circumstances of applicant
 Immigration history – Previous applications

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 If a minor – Intention of guardian

 Any other matters

GTE Requirement – Statement of Purpose

List reasons why student wishes to undertake the course, how the studies will benefit their
future when they return to their home country etc.
 Applicants wishing to supplement their applications can provide documentary
evidence such as an offer of employment in their home country, evidence of assets in
their home country etc.
 Providing quality supporting documentary evidence is pivotal to satisfying the GTE
requirement

6.4 Temporary Residence Visas

Subclass 400 + series
 Focus on SC 482 (TSS) Visa
 Brief overview of:
o SC 400 Temporary Work (Short Stay Specialist)
o SC 407 Training

Other temporary resident visas include:

 SC 400 Temporary Work (Short Stay Specialist) visa
 SC 403 Temporary Work (International Relations) visa
 SC 405 Investor Retirement visa
 SC 407 Training visa
 SC 408 Temporary Activity visa
 SC 417 Working Holiday visa
 SC 462 Work and Holiday visa

Temporary Skill Shortage Visa

 TSS is a newly created visa
 Replaced the Temporary Work (Skilled) SC 457 visa
 TSS has similarities with the 457 visa

Temporary Work (Skilled) (SC 547) Visa

 Significant visa program in 457 visas and sometimes controversial
 Previously known as Business (Long Stay) 457 visa

TSS (SC 482) Visa

The TSS program replicates the 457 program with a similar three stage process
 Sponsorship – valid for 5 year when approved
 Nomination – employer nominates its nominees
 Application – Nominee applies for TSS visa

Sponsorship requirements
 Section 140E and regulation 2.59
o Lawfully operating a business in our outside Australia
o Record of commitment to employing commitment to employing local labour
o Declare no discriminatory practices

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 Sponsorship is valid for 5 years

 Process for existing sponsors to renew sponsorship
 Accredited sponsorship

TSS Criteria for Nomination

Section 140GV and reg 2.72
 Contribution to the Skilling Australia Fund (SAF) by Employers.
o Payable at time of nomination
o Amount depends on turnover of sponsoring business and proposed period of
stay of applicant
 Nomination made for occupation in STSOL or MLTSSOL
 Market salary and Temporary Skilled Migration Income Threshold (TSMIT)
 Labour Market Testing: s 140 GBA and reg 2.72AA
 Non-Discriminatory workforce test to ensure employers are not engaging in
discriminatory recruitment practices against Australian workers.

TSS Schedule 2 Criteria Clause 482

 Short-Term stream
 Medium-Term stream
 Labour Agreement steam

Cl 482.21 Common criteria includes:

 Previous visa compliance
 Approved nominated by approved work sponsor
 Genuine intention and genuine position
 Applicant has necessary skills – Assessment if necessary
 No payment for sponsorship made
 Health insurance, Sch 4 PIC, Sch 5 SRC

Cl 482.22 Short Term Stream Criteria

 Worked in nominated occupation for at least two years
 Genuine temporary entrant test
 Language

Temporary Work (Short Stay Activity) Visa (Subclass 400)

 Undertake short-term, highly specialized, non-ongoing work
 Participate in an activity or work relating to Australia’s interests (in limited
circumstances – such as assisting in natural disasters)
 Period of stay: Usually 3 months by may extend to 6 months

Training (SC 407) Visa

The visa allows applicants to
 Take part in workplace based training to enhance the applicant’s skills in their current
occupation, area of tertiary study or field of expertise
 Participate in a professional development training program in Australia
 Period of stay – Up to 2 years

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Module 7 – Australian Visa System 2 (Family Visas)

7.1 Partner Visas
 Prospective Marriage (Temp) TO/300 (Item 1215)
 Partner (Provisional) UF/309 (Item 1220A)
 Partner (Migrant) BC/100 (Item 1129)
 Partner (Temp) UK/820 (Item 1214C)
 Partner (Residence) BS/801 (Item 1124B)
 Dependent Child TK/445 (Item 1211)

Partner (Spouse and De Factor)

Spouse (S 5F and R 1.15A)
 Marriage recognised under Australian law
 Mutual commitment to shared life as husband and wife to exclusion of all others
 Genuine and continuing
 Live together, or do not live apart on permanent basis

De Facto (S 5CB and R 1.09A, R 203A

 Mutual commitment to shared life to exclusion of all others
 Genuine and continuing
 Live together, or do not live apart on permanent basis
 Not related by family
 At least 18
 12 month requirement

Marriage
Most marriages solemnized in Australia are recognised under Australian law at a
marriageable age.
Marriages not recognised for immigration purposes
 Polygamous
 Underage marriages
 Marriages within prohibited degrees of relationship
 Customary, arranged and proxy marriages
 Contrived marriages or marriages of convenience

De Facto Relationship
 Reg 2.03A states relationship must be at least 12 months old
 Unless relationship is registered in one of the following jurisdictions:
o Queensland

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o NSW
o Victoria
o Tasmania; or
o ACT

Partner Requirements Under the Act

The couple have:
a. A mutual commitment to a shared life to the exclusion of all others and
b. The relationship is genuine and continuing and
c. They
a. Live together; or
b. Do not live separately and apart on a permanent basis

Partner Requirements Under the Regulations

Four factors have to be met
1. Joint financial aspects of the relationship – How they share finances
2. Joint nature of the household arrangement – How the couple share a home
3. The social aspects of the relationship – How the couple are perceived publicly; and
4. The nature of the couple’s commitment to one another
Assessing Genuineness (Regulation 1.15A and 1.09A)

Partner Visa
Offshore Application: Applicant applies for Partner (Migrant) (Class BC) and Partner
(Provisional) (Class UF) concurrently
 Subclass 309
 Subclass 100

Onshore Application: Applicant applies for Partner (Residence) (Class BS) and Partner
(Temp) (Class UK) concurrently
 Subclass 820
 Subclass 801

Partner visas – Application Process

Two stages: Temporary
Temporary visa
 Apply for permanent visa at the same time
 Partner visa numbers not capped
 Temp visas valid for 2 years
 Relationship re-assessed after 2 years
 Visa holder entitled to Medicare, AMEP and some social benefits
 2 year provisional period can be waived for some long term relationships see
Regulation 1.03

Permanent Stage
 Automatic application: 1 form, 1 fee
 Processing begins 2 years from lodgment of SC820/801 VA
 Relationship needs to be reassessed on basis of new evidence
 Permanent visas granted if still genuine and ongoing unless exception applies
 Visa holder entitled to all benefits applicable to all other Australian residents

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Where there is Long Term Relationship

A long term relationship (reg 1.03) – At the time of application, the couple’s relationship has
been either:
 3 years or more; or
 2 years or more where the couple have a dependent child from their relationship

Prospective Marriage Visa – SC 300 Visa

 An offshore visa
 Main requirements
o Couple have met in person and are known to one another (Cl 300.214)
o Parties genuinely intend to marry within 9 month visa validity (Cl 300.215);
and
o Parties genuinely intend to live together as spouses (Cl 300.216)

1. For travel to marry Australian Sponsor

2. Applicant and sponsor over 18 at TOA
3. Applicant has met Australian sponsor personally since they turned 18
4. No impediment to marry under Australian law (TOD)
5. Must not marry prior to entering Australia
6. Temp visa valid for 9 months from grant
7. Must travel, marry and apply for 820/801 visa within 9 months
8. Cannot extend 300 visa if persons do not marry
9. If no marriage applicant should leave Australia bu can be sponsored subsequently
10. If applicant marries sponsor before decision, 300 VA taken to be a 309/100 VA
11. If 300 VA refused and AAT review pending and applicant marries sponsor, AAT to
remit case to Dept as a 309/310 visa application

Offence under the Migration Act

 Section 237
 Section 239
 Sections 240/41
 Section 243
 Section 245

Special Provisions for Long Term Illegal Partners

 Cl 820.211 in Sch 2 of MR
 3001
 3003 and 3004

Sponsorship Limitations – R 1.20J

Other sponsorship limitations include:

 R 1.20KA
 R 1.20KB
 R 1.20KB
 Woman at risk (SC204)

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7.1.1 End of Partner Relationship

When a relationship ceases
 Death of a sponsor; or
 Child or children from their relationship; or
 Family violence

Two year Exception

 Family violence
 Child of the relationship
 801.221

Family Violence
 Family violence provisions – Permit victims in an abusive Partner relationship to
continue with migration application
 Must satisfy delegate that relationship was genuine until it ceased, and that family
violence took place during the relationship (reg 1.23(12) and (14))
 Exception only available to partner visa applicants already in Australia and
prospective marriage visa holders who are already in Australia and have married
sponsor.
 Regs 1.21-1.27

Acceptable Evidence
 Judicially determined evidence; or
 Non-judicially determined evidence
See special provisions relating to Family Violence – Div 1.5 of Part 2 of the Regulations

Evidence of Family Violence

Judicially determined evidence
 Court injunction
 Intervention order (not interim order)
 Court conviction

Non-judicially determined evidence

 Joint undertaking before court
 Opinion by a prescribed independent expert that the alleged victim has suffered
relevant family violence, if the Minister is not satisfied based on other non-judicial
evidence that the alleged victim has suffered relevant family violence; or
 Other prescribed evidence

Judicially determined evidence

 Court injunctions under Family Law Act 1975
 Certain court orders against the partner made under an Australia state or territory law
 The sponsoring partner has been convicted (or has recorded a finding of guilt) of an
offence of violence against the victim

Non-judicially determined evidence

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 Reg 1.24; plus

 At least 2 evidence from legislative instrument list
o See instrument IMMI12/116
 Or Joint Undertaking (reg 1.23(8)(b)) before Court that Sponsor has committed
violence against victim

Independent Assessment
 Doubts on non-judicially determined claim may be referred to independent expert
 Independent expert will provide opinion to Department
 Independent expert’s onion must be accepted by the Department

7.2 Child Visas

There are three different visas for children:
 Child
 Adoption
 Orphan relative
See Child (migrant) (Class AH)
For onshore visa subclasses See Child (Residence (Class BT)

Child Visa – SC 101 or 802

 Applicant is a dependent child (reg 1.03) of an A/C, PR or ENZC
 Under 25 years old
 Sponsored by Australian parent or parent’s cohabitating partner
 If aged between 18 and 25 is not engaged or never married or in de fact relationship;
and
 Not in full time work but rather full time study

7.3 Parent Visa

Two main categories
 Non-contributory Parent – Process can take up to 30 years
 Contributory Parent – Process can take almost 5 years and a $43,600 2nd instalment
VAC

Sponsor
 Sponsor must be Australian permanent resident or eligible NZ citizen
 Sponsor must be settled – defined in reg 1.03
o Means lawfully resident in Australia for a reasonable period
 Under Policy a reasonable period means two years

Balance of Family Test

 Reg 1.05 (2C) states a parent satisfies the balance of family test if the number of
eligible children (in Australia) is greater than or equal to the number of ineligible
children
 This means either
o At least half of the applicant’s children live permanently in Australia; or

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o More of the applicant’s children live permanently in Australia than any other
country

Parent visas – 2 divided categories

Non-contributory Parent
 Parent Visa Subclass 103 – Offshore visa
 Aged Parent visa Subclass 804 – Onshore visa

Contributory Parent
 Contributory Parent Visa (Subclass 143) Offshore visa
 Contributory Parent (temp) Visa (Subclass 173) Offshore visa
 Contributory Aged Parent Visa (Subclass 864) onshore visa
 Contributory Aged Parent (Temp) visa (Subclass 884) onshore visa

Parent Visas: Offshore and onshore

Offshore Visas
 Parent Visa SC 103
 Contributory Parent Visa SC 143
 Contributory Parent (Temp) Visa SC 173

Onshore Visas
 Aged Parent visa SC 804
 Contributory Aged Parent Visa SC 864
 Contributory Aged Parent (Temp) Visa SC 884

Non-Contributory Parent vs Contributory Parent Visa

Non-Contributory Parent
 Considerably cheaper in visa fees
 Assurance of Support bond is smaller and is held for four years
 Wait time in the queue is 30 years

Contributory Parent
 High cost of second instalment VAC at $43 600 per parent
 Assurance of Support bond is larger and is held for 10 years
 Processing time is just under 5 years

Assurance of Support (AoS)

 Legal document and commitment
 Assurer gives warranty that applicant will not apply for government assistance for
period of AoS
 Bond for Non-Contributory parent visa for four uears
o $5000 for main applicant and $2000 for secondary applicant
 Bond for Contributory Parent visa for 10 years
o $10,000 for main applicant and $4000 for secondary applicant
Capping and Queuing
 Cap and Queue: Under s 85 of the Act, the Minister can limit the number of visas
granted in a year
 Parent visa classes have a cap placed on them – see determination made under s 85

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 Applicants in a queue for a visa that has reached the cap, will wait in the queue until
more visa places become available

7.4 Other Family Visas

3 visas in this group include:
 Carer visa;
o SC 116 and 836
 Aged Dependent Relative Visa; and
o 114 and 838
 Remaining Relative Visa
o 115 and 835

All Other Family visas – Requirements

 Assurance of Support is required
 Meeting health requirements
 Meeting character requirements
o Any other specific public interest criteria

Adoption Visa – SC 102

Inter-county adoption can only succeed if following occurred:
a. Authorisation of State or Territory Government is approved before adoption
can proceed; or
b. Sponsoring Parent has resided overseas for more than 12 months before
child’s application is lodged and is not done to circumvent Australia’s
adoption laws

Orphan Relative – SC 117 or 837

 The child (under 18) cannot be cared for by their parents because they are either
deceased, permanently incapacitated or whereabouts unknown – reg 1.14
 Sponsor is an eligible relative: sibling, grandparent, aunt, uncle, niece, nephew, or a
relative’s current cohabiting spouse or de facto partner. And the sponsor must be over
18 years old, and is settled in Australia

7.4 – Other Family visas

Carer Visa SC 116 & 836
 Def of Carer in reg 1.15AA
 To care for an Australian relative with a medical condition that prevents them for
caring for themselves
 Bupa Medical Visa Services must make a favourable medical assessment on need for
care of sponsor’s medical condition
 The assistance needed cannot be provided by any relative in Australia or by health
services in Australia
 Applicant is willing and able to provide the assistance

Aged Dependent Relative Visa

 Defined in reg 1.03
Remaining Relative Visa
 Defined in reg 1.15

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 Applicant and their partner must have all their relatives in Australia, and no relatives
outside Australia
 Sponsor must be a relative of the applicant who is an Australian citizen, permanent
resident or an eligible NZ citizen, is over 18, is settled and is not subject to a
sponsorship limitation

Module 8 – Australia’s Visa System 3 (Permanent, employer sponsored and skilled

visas)
8.1 Employer Sponsored Visas

ESV
 Employer Nominated Scheme (ENS): Class EN SC 186 visa
 Regional Sponsored Migration Scheme (RSMS): Class RN SC 187 visa

3 Streams – ENS (RSMS only TRT and A-Stream)

 Temporary Residence Transition stream
 Direct Entry stream
 Agreement stream

Key Schedule 2 Requirements for ENS and RSMS

1. Front end – Employer
a. Nominee must be nominated by an approved employer (reg 5.19)
b. Employer must meet nomination requirements
2. Back end – Nominee/applicant
a. Be under 45
b. Meet the skills and qualifications requirements
c. Meet English language requirements
There are exemptions relating to age, skills and English language ability. Important that you
check for the correct Legislative Instruments as they can change quickly over time

ENS – Employer’s Requirements

 Actively and lawfully operating a business
 Genuine need for employee – Labour Market testing
 Position must be for at least 2 years
 Nominated Occupation must be from the MLTSSL (unless a 457 grandfathered
situation – held or applied for a 457 prior to 19 April 2017
 Market Salary and meeting the temporary skilled migration income threshold
(TSMIT)
 Training requirement – payment to skilling Australians Fund
o Lump sum payable at the time of nomination

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o Businesses with an annual turnover less that 10 million $3000

o Businesses with an annual turnover more than 10 million $5000

Employee’s Requirements – Stream dependent

Temporary Residence Transition stream

 SC 457 or TSS 482 visa holders
 No skills assessment
 Has competent English IELTS 6 equivalent

Direct Entry stream

 Positive skills assessment from MLTSSL occupation
 3 years work experience
 Has competent English IELTS 6 equivalent

Agreement stream

Regional Sponsored Migration Scheme (RSMS)

 Two streams – TRT and Agreement
 Same requirements as for ENS except
o Occupation needs to be located in a regional area
o Genuine position requirements may be different and easier to evidence in
regional areas

8.2 – Intro to General Skilled Visas

What is a GSM?
 Targets migrants with skills needed in Australia

Components of the Skilled Program:

 Temp Residence Visas; and
 Perm Residence Skilled Visas

Visas in the Skilled Program

Temp Residence Visas

 Graduate Skilled Class VC SC 485 visa

Permanent Residence Skilled Visas

 Skilled Independent Class SI SC 189 visa
 Skilled Nominated SC Class SN 190 visa
 Skilled Regional Provisional Class SP SC 489 visa – pathway to perm residence

What is SkillSelect?

Online process – onshore and offshore application

Front end loaded system

Lodge Expression of Interest (EOI)

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 Not a visa application

 Valid for 2 years, after which validity will cease

 Candidates invited to apply for visa based on highest points reached from EOI
database
 Applicants granted visas when Sch 1 and 2 requirements

Benefits of SkillSelect
 Responsiveness to changing needs of the economy
 Responsiveness to skill needs of employers with targeted skills lists
 Allocated places to best candidates with merit based points test
 Fair and equitable skilled migration program
 EOI process reduces visa processing times
 Streamline and optimize State and Territory migration plans
 Employers able to search for and contact skilled workers
 Addresses regional skilled shortages
SkillSelect is Australia’s service for managing its skilled migration program, incorporating
an online service.

The Points Test

Schedule 6D MR
Points test based on a range of requirements
 Age
 English language
 Work Experience
 Qualification
 Professional year
 Specialist Educational Qualification
 Australian study
 Regional study
 Credential community language
 Partner skill
 State or territory nomination

Minimum Threshold Requirements

 Under 45
 Achieve minimum Points Score of 65 points
 Competent English equivalent
 Qualifications recognised by relevant Assessing Authoring

8.2.1 - Temporary Skilled Visas

Temporary Skilled Visas:
 Skilled Provisional Class VC SC 485 (temporary graduate) visa
 Skilled Provisional Class VF SC 476 (recognised graduate) SC 476 visa

Subclass 485 Streams

 Graduate Work Stream cl 485.22
o Recent graduates (2 year study)

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o From Australian Tertiary Institutions – Uni, TAFE, CRICOS approved

colleges
o Apply onshore within 6 months of completing 2 year Australian study
o Occupation is on MLTSSL and skills are positively assessed
o Other threshold requirements: Competent English unless exempt
o No points test
o 18 months stay
 Post-study work stream cl 485.23
o Tertiary graduates with Bachelor or higher degree and applied for student
visas after 5 November 2011
o Visa period depends on Australian qualification
 Bachelors, honours, masters by coursework – two years
 Masters by research – three years
 PhD – Four years
o Must apply onshore within 6 months of completing two year tertiary study
program (CRICOS 92 weeks study)
o Competent English unless exempt national
o No points test, no MLTSSL requirement and no skills assessment

8.2.2 Skilled Visas and SkillSelect

 Skilled Independent Class SI (Perm SC 189)
 Skilled Nominated Class SN (Perm SC 190)
 Skilled Regional Class SP (Provisional SC 489)

Skilled Independent Class SI – SC 189

 No sponsor or nominator
 Must be invited and must apply within 60 days of invitation
 Application must be lodged online
 At time of invitation must:
o Be under 45
o Have skill, already assessed on MLTSSL
o Have competent English
o Meet gazetted points test (current 65 points) and has achieved points score not
less than the score stated in the invitation
 Outcome: Permanent Residence

Subclass 189 Skilled Independent (New Zealand) stream for NZ Special Category (SC 444)
visa holders

Skilled Nominated SC 190

 Nominated by State or Territory government
 If invited, must apply within 60 days of invitation
 Application is lodged online
 At time of invitation must:
o Be under 45
o Have skill, already assessed on the Combined MLTSSL and STSOL
o Have competent English

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o Meet gazetted points test and has achieved points not less than score in the
invitation

Skilled regional provisional SC 489

 If nominated by state/territory government (needs to be on SSOL) or if sponsored by
eligible relative in a designated area (occupation needs to be on MLTSSL)
 At time of the invitation
o Be under 45
o Skill is positively assessed
o Have competent English
o Points score is not less than the score stated in the invitation

Skilled Regional SC 887

 Second Stage visa processing for Provisional holder of 489 Visa
 Not subject to SkillSelect nor invitation from department
 No sponsorship required – from relative or state/territory government
 Must live in regional area for 2 years
 Must work full time for one year in the regional area while holding provisional visa
 Outcome: Permanent Residence

SkillSelect – Process
1. EOI Preparation
2. Lodgment of EOI
3. Invitation to apply for visa
4. Application for Visa
5. Visa decision: Grant or refusal

How to lodge a complete and decision ready EOI

1. Check occupation is on MLTSSL or combined MLTSSL and STSOL for relevant visa
2. Check candidate
a. Meets threshold requirements (age, English, skill)
b. Can get minimum gazetted points test, currently 65
3. Assess English language competency
4. Get skills assessed by relevant assessing authority; and
5. Lodge EOI if able to meet the gazetted pass mark

Lodgement of EOI
 No fee
 Candidates can be onshore or offshore at time of lodgement
 Onshore candidates do not get a BC as this is not an application
 EOI’s remain in the system for 2 years or until visa is granted
 Candidates are ranked by points and date (and time) of lodgement

Invitation to apply for visa

Invitation for SC 189 are subject to:
 Every occupation in 189 program has a ceiling
 Occupations compete on a merits basis – highest points receive invitation
 EOI claims are frozen at time of invitation
 Invitees have 60 days to lodge application

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 A maximum of only 2 invitations may be sent

 EOI’s will be removed from SkillSelect if second invite is not accepted
 Department expects a ‘decision ready’ application to be lodged
 EOI will remain in the SkillSelect database for 2 years

Invitation to apply for visa – for 190 and 489 Visa

Invitations sent when nominations authorized by State and Territory Governments; or when a
relatives 489 nomination is accepted by DHA:
 Check State and Territory Governments for their varying requirements
 State and Territory Governments notify DHA of their nominees and this triggers Dept
invitation
 For 489 relative-nominations, invitations sent when DHA accepts nomination
 Other processes similar to subclass 189 processes

Application for Visa

 Online visa application must be lodged within 60 days allocated
 All Sch 1 and 2 requirements must be met
 All supporting documents must be lodged in support of visa application
 As SkillSelect is a front-end loaded system all required documents should be available
when the EOI is lodged.

Visa Decision
If application is approved
 Dept sends approval letter with:
o Visa grant number
o Visa conditions (including a specified initial entry date)
o Details of what the applicant must do next

If application is refused
 Dept sends refusal letter stating:
o Why visa was not approved
o Review right (if any)
o Time fame for lodging an appeal (if applicable)

Summary
Temp residence (Not points tested and not under SkillSelect)
 Temp Graduate Visa SC 485
 Skilled – Recognised Graduate Visa SC 476

Points Tested (Operates under SkillSelect)

 189 skilled independent (perm)
 190 Skilled nominated (perm)

Regional – two stage process

 489 Skilled regional provisional – 1st stage
 887 Regional (perm) – 2nd stage

All require EOI under SkillSelect Program

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Module 9 – Visa Compliance and Cancellation

9.1 – Border Security

Role of Home Affairs Department

The new Dept of Home Affairs will have responsibility for ensuring a nationally consistent
approach to terrorism, cyber security, organised and transnational crime, while securing the
integrity of Australia’s migration programmes and protecting out borders by managing the
movements of people and goods.

Ensures Compliance via:

 Visa Refusal and Cancellations
 Bridging Visas
 Detention
 Removal

Compliance Tools
 Border Protection/Immigration Clearance
 Power to collect Personal Identifiers
 Power of Entry and Search – integrity checks on non-citizens
Also
 Data Matching with Centrelink and ATO
 Employer Monitoring and Sanctions
 Visa refusal and cancellation
 Deportation (ss 200-206) and removal (ss 198 and 199)
 Exclusions and Bans on re-entry: Sch 4 and 5

Immigration Clearance
 Process of ensuring non-citizen had authority to enter Australia

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 Valid visa
 Entry via a port
 Identification at port

Immigration cleared s 172(1)

 Enters at a port
 Provides identification
 Leaves with clearance officer permission; or
 Enters elsewhere but provides ID within time limit

Clearance refused or bypassed s172(3)

Refused – Return flight

 Visa cancelled at border
 Unsatisfactory identification or authority

Bypassed (Unlawful non-citizen

 Entered at port but bypassed clearance
 Did not enter port

Personal Identifiers
 Visa applicants required to provide a variety of personal identifiers
 Section 166 and 5A

9.1.1 – Unlawful Non-Citizens

Definitions – ss 13-14
 Non-citizen
 No visa in effect

S 82 – Visa cease
 Visa cancellation: immediately no longer in effect
 After expiry date

Mandatory Detention
Section 189
 If compliance officer knows or reasonably suspects person in migration zone is
unlawful non-citizen, the officer must detain the person
o Note non-compliance with immigration clearance is a ground for detention

Meaning of ‘detain’
Section 5: Take into, keep in immigration detention by whatever force reasonably necessary

Immigration detention
 In the company of and restrained by a Dept officer
 Held in a detention, prison etc.

Duration of detention
Section 196: Kept in detention until:
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 Removed from Australia

 Taken to regional processing country
 Deported
 Granted a visa

Unlawful detention
 Vivian Alvarez Solon (R)
 Cornelia Rau (L)

Independent inquiries, scathing reports by Ombudsman

A lawyer’s duty
 No duty to report unlawful non-citizen client
 Provide competent advice on visa status, risk of detention and options

9.2 – Introduction and Approach to Visa Cancellation

What is visa cancellation?

What are the consequences of cancellation?
It is different to a visa simply expiring or ceasing.

Section 82(2) – cessation is not the same thing and it does not have the same consequences as
a cancellation

Consequences of Cancellation
Immediate effect:
 Unlawful non-citizen
 Liable to immigration detention
 Exception: Business visas

Section 48 will apply:

 If non-citizen in Australia attempts to apply for another visa
 Is no longer holding a substantive visa (because it was cancelled)
 Cannot lodge a valid application (ss 46 and 48)
 Unless listed in reg 2.12 (e.g. bridging visa)

How to approach visa cancellation

 What is the cancellation ground or power?
 Each cancellation power has a specific process that must be followed by the Dept

The Cancellation Powers

 S109
 S116
 S501
 S128
 S134
 S137Q
 D140

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9.2.1 – Natural Justice Procedures

Natural Justice
A person whose interests may be affected by a decision is entitled to be heard decision is
made
Most of the cancellation powers have an associated natural justice procedure that must be
followed.

Cancellation with Notice

Notice of intention to consider cancellation of a visa (NOICC)
 S116 – 119
 S109 – 107
 S501 – 501D

Is the NOICC valid?

 Visa holder’s response within prescribed period
 Decision to cancel or not cancel

Proper Notification
 Method of notification: ref 2.55
 Deemed notification

Prescribed Matters for s 109

 Regulation 2.41

Policy Matters for s116

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 ground for cancellation
 Visa holder’s record of behaviour with Immigration

Decision to cancel

Review rights if visa cancelled in Australia

Time limits for lodging review application
 S 82(1): Visa ceases to be in effect immediately upon decision to cancel (except for
business visas)
 S 134(8): Business visa ceases 28 days after

Cancellation without notice

 S 128
 S 129
Minster can revoke cancellation after receiving response (s 131)

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Personal Ministerial Powers

Without notice
 S 133A(3)
 S 133C(3)

Minister may cancel the visa without notice

 S 133(F)

Notification of Cancellation
 Must include grounds and particulars
 Invite response within prescribed period

Minister can revoke cancellation after receiving response

Response to NOICC/NOC

There are prescribed periods for response to NOICC/NOC

Prescribed periods for response vary depending on
 Cancellation power used
 Location of person

 S 116 – S 121 and reg 2.44

 S 109 – s 107(1A)
 S 128 – s 129 and reg 2.46
 S 133A – ss 133E and F
 S 133C

9.3 – s 109 Cancellation Grounds

Sections 101 and 102: All answers to questions in VA forms and Passenger cards must be
answered and be correct

Cancellation Grounds
 S 98
 S 99
 S 100
 S 103
 Ss 105-105
 S 106

Process
 S 107: Minister may send NOICC to immigration cleared person if the Minister
becomes aware they provided incorrect information
o S 107A
o S 108
o S 109

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Extent of power
 SS 110 – 111
 S 112
 S 113
 S 114
 S 116 and reg 2.43(o)

Personal Ministerial Powers

With notice: s 133A(1)

Without notice: s 133A(3)
Minister may cancel the visa without notice
S 133F: Minister sends notification of cancellation

9.3.1 – S 109 Cancellation Process

Process
 S 107
 S 107A
 S 108
 S 109

Cancellation with Notice

Notice of intention to consider cancellation of visa (NOICC)
 S 109 – s 107
 S 133A(1)

Visa holders response within prescribed period

Decision to cancel or not cancel

Proper Notification
 Method of notification: reg 2.55
 Deemed notification

Prescribed Matters for s 109

Regulation 2.41 – Dept considers theses factors when deciding whether or not to cancel

Notification
 Section 107 sets out NOICC procedures
 Method of notification: reg 2.55
 Time given to respond s 107(1A)
o Temp visa: A reasonable period
o For another visa: 14 days

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Module 10 – General and Character Cancellation Powers

10.1 – Section 116 Cancellation Grounds

Section 116(1)Cancellation Grounds

a) Circumstances no longer exists
b) Holder has not complied with visa conditions
c) Another person has not complied with visa condition (e.g., secondary applicant/visa
holder)
d) Holder outside Australia and incorrect information provided, including where person
not yet immigration cleared
e) Presence in Australia a risk to health, safety or good order
f) Visa should not have been granted due to contravention of law
g) Non-genuine student (breaching visa conditions, conduct not contemplated by the
visa)

 S 116(1)(g)
 S 116(3)
 Reg 2.43(1)
 Reg 2.4.3(2)

Reg 2.43(1) – Prescribed Ground

Discretionary
 Visitor visas held by minors in breach of parental orders
 Non-genuine visitor on ETA/visitor visa
 Temporary work sponsor fails to meet obligation
 Temporary visa holder convicted of an offence (any offence)
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Reg 2.43(3) Mandatory Ground

Minister must cancel:
 Visa holder’s presence:
o Contrary to Australia’s foreign policy interests or may be involved in
proliferation of weapons of mass destruction
o Risk to Australia’s security

Newer Cancellation Grounds

 S116(AA) – Minister may cancel a visa if he or she is not satisfied as to the visa
holder’s identity
 S116(1AB) – Minister may cancel a visa if incorrect information was given to the
Dept and that information was taken into account in the decision to grant a visa
 S116(1AC) – Cancellation if benefit is given for sponsorship

Can a permanent visa be cancelled under s116?

S 117(2): Possibly
Permanent visa cannot be cancelled under 116(1) if:
 The visa holder is in Australia; and
 Was immigration cleared on last entry

However a permanent visa can be cancelled under:

 Ss116(1AA-1AC)
 Other sections (109, 501, 501A, 501B)

Personal Ministerial Powers

 With notice – s 133C(1)
 Minister must provide NOICC

 Without notice – s133C(3)

 Minister must send NOC

10.2 – Cancellation Process

Cancellation with Notice

Notice of intention to consider cancellation of visa (NOICC)
 S 116 – s 119
 S 133C(1) – common law

Policy Matters for s 116

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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S 116 Notification
Method of notification: Reg 2.55
Time given to respond s 121 and reg 2.44

Other than at an interview

 5 working days in Australia
 Either 5 or 28 days outside of Australia
 If extension sought: A further 5 working days
If no response within prescribed period, Minister may cancel visa without further notice

Cancellation without notice

 S 128
o Visa holder is outside Australia
o S 116 cancellation grounds

Minister may cancel the visa without notice

 S 129
o Minister sends notification of cancellation
Minister can revoke cancellation after receiving response (s 131)

Personal Ministerial Powers

Without notice
S 133C(3) – Minister’s personal power, minister may cancel the visa without notice
S 133F – Minister sends notification of cancellation (NOC)
Section 128 Notification
 Method of notification
o Reg 2.47 and 2.55
 Time given to respond:
o Reg 2.46
o 28 days outside Australia
o 5 minutes in immigration
Here the response time is for the purpose of seeking revocation of cancellation under s 131

Persons in Immigration Clearance

NOICC – S 116
 The period of immigration clearance s 125; or
 If in questioning detention, before the end of 4 hours s 126

NOC – S 128
 5 minutes to respond; or
 If the person departs Australia as soon as possible and wishes the cancellation to be
reconsidered while they are outside Australia – 28 days s 129 and reg 2.46

10.3 – Assessing Character Cancellation

Direction 90

Important Context

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Long term residents

 May have visas cancelled under s 500
 Note also s 201: Deportation of PR and NZ citizens in Australia less than 10 years and
convicted of offence (life or more than 1 year)
 Commonwealth Ombudsman’s 2006 Report very critical of the policies and
procedures used to cancel the residence visas of long term Australian residents.

Assessing Character Cases

S 499 Ministerial Direction No 90 – Visa refusal and cancellation under s 501 and revocation
of a mandatory cancellation of a visa under s 201CA

Purpose and Nature

Direction decision makers how to:

 Exercise s 501 discretionary cancellations; and
 Deal with requests to revoke mandatory cancellation under s 501CA

Binding on decisionmakers, including merits review tribunals

 Different to normal policy documents

Ministerial Direction No. 90

 Has three parts
o Part A – Considerations relevant to visa holders when considering whether to
exercise the discretion to cancel
o Part B – Considerations relevant to visa applicants when considering whether
to exercise the discretion to refuse a visa application
o Part C – Considerations relevant too former visa holders when considering
whether to exercise the discretion to revoke a visa cancellation

All Parts contain Primary and Other Considerations to be taken into account. Noting Item 7
Part 2:
 Directs how to apply the directions
 Primary consideration given greater weight than other considerations
 1 or more primary considerations may outweigh other primary consideration

Direction 90 Preamble
5.2 Principles:
 Australia has sovereign right to determine whether character concerns can stay here
 If serious character concerns, irrelevant if no measurable risk of causing physical
harm to Australian community
 Certain types of conduct e.g.: family violence or crimes against children or vulnerable
community members are so serious that irrelevant if countervailing considerations
exist
 Higher level or tolerance of criminal or serious conduct of non-citizen living in
Australian community for most of their life, or from a very young age.

Item 8 Primary considerations

 8 (1)
 8 (2)

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 8 (3)
 8(4)

Other considerations
 International non-refoulment obligations
 Extent of impediments if removed
 Impact on victims
 Links to the Australian community, including:
o Strength, nature and duration of ties
o Impact on Australian business interests

Module 11 – Merits Review of Visa Decisions

11.1 – Introduction to Merits Review

Merits (or Administrative) Review

 Review by an independent executive tribunal
 A re making of the decision
 Reviewer stands in the shoes of the original decision maker
 Tribunal can consider new evidence

Difference between Merits and Judicial Review

Judicial review
 Review of an administrative decision
 By the Courts to assess if decision was made lawfully
 Looking for an error of law
 Court cannot re-make the decision
 Court cannot consider new evidence

Notification of Review Rights

Section 66
 Must notify applicant of decision
 Explain reasons for decision
 Notify applicant of review rights including:
o Decision can be reviewed
o Who can apply
o Where to apply

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o Time limits

AAT
 Migration Division: s 338
o Part 5 reviewable decisions
o S 336M – 379G
 Refugee Division: S 411
o Part 7 reviewable decisions
o S 408 – 441G
 General Division S 500 and others

AAT may:
 Affirm the decision
 Vary the decision
 Remit the matter for reconsideration
 Set the decision aside and substitute a new decision

11.1.2 – Jurisdiction of the AAT

Jurisdiction – Migration and Refugee Division

Migration Cases – Part 5, Reviewable decisions: s 338

AAT can review decisions in relation to:
 Onshore applications
 Sponsored applications
 General visa cancellations if holder is onshore
 Business sponsorship
 Detention due to visa cancellation

Refugee Cases Part 7 – Reviewable decisions: s 411

AAT can review decisions to:
 Cancel or refuse protection visa
Does not review
 Offshore humanitarian cases or offshore cancellations
 Nor unauthorised maritime arrivals (see IAA)

Who can apply for a review

Review applicant (Part 5):
 Visa applicant if in Australia
 Sponsor/close relative if VA offshore
 Business/ENS/RSMS sponsors

Review applicant (Part 7):

 Protection visa applicant in Australia

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Jurisdiction – General Division

Reviews decisions relating to:
 Refusing/cancelling a visa on character grounds – S 500 (delegate)
 Refusing/cancelling a protection visa on character grounds – S 500 (delegate) [unless
s 501(4) applies]
 Cancelling business visas – S 136
 Deporting a PR under criminal deportation S 201-203
 Adverse ASIO assessments S 54 ASIO Act
 Citizenship refusal s 54 Citizenship Act
 Decisions made under FOI Act

Decisions not reviewed by AAT

 Decisions made in immigration clearance
 Personal decisions of the Minister
 Decisions in relation to which the Minister has issued a conclusive certificate under s
339
 IAA reviews

Immigration Assessment Authority (IAA)

Independent body, separate to the AAT (s 473JA)
Reviews decisions relating to unauthorised maritime arrivals entering Australia 13.08.12-
01.01.14
By referral only – no right to review
Review on the papers

11.2 – Adding the deemed notification period

Legislation
 Method:
o S 494b
o Reg 2.55 (cancellation)
 Deemed Notification Period
o S494C
o Reg 2.55 (cancellation)

Example
Edwards application for an onshore aged parent visa has been refused. He was notified by a
letter from the Dept.
 Can he seek a review?
o Yes – AAT under s 338(2)
 How much time does he have to lodge the review application?
o 21 days from the notification – reg 4.10(1)(a)
 Include the DNP in your answer
o Notification by letter, 7 working days – s494C
o Total time limit – 7 working days plus 21 days, start from the day after the
date on the letter.

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Jane’s remaining relative visa was cancelled under s 109 by a delegate. She was notified via
email.
 Can she seek review?
o Yes – under s 338(3)
 How much time does she have to lodge the review application?
o 7 working days from the date of notification – reg 4.10(1)(b)
 Include the DNP in your answer
o Notification by email – immediate notification – reg 2.55
o Total time limit – 7 working days, 0 days of DNP

11.3 – Part 5 reviewable decisions

Making a Valid Review Application

1. Form
2. Fee
3. Time

Fee – MRD
Prescribed in s 347 and reg 4.1.2-4.1.3
 Biennials increase
 Currently $1826
o Fee halved if:
 Financial hardship
 Successful application
Pre-hearing procedure – MRD Part 5
Section 359:
 AAT can obtain any information it considers relevant
 Can make decision if information not given
o Right to oral hearing lost if no response
Section 359A Adverse information
 AAT must invite applicant to comment on it
 Unless non-disclosable
 If no response
o Lose right to oral hearing
o Likely to be negative decision

Hearing – MRD Part 5

 Review applicant has a right to appear – s 360
 RA can appoint agent or solicitor – s 366A
 RA can request interpreter – s 366C

Representative may not present arguments or address AAT at hearing – but may make oral
submissions upon request

Evidence – MRD Part 5

 RA may request AAT to call witnesses
 AAT may summon persons to appear or provide evidence
 Failure of RA to appear at hearing:

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o AAT may make decision or dismiss application

Decisions
 Sets out decision and reasons
 Sets out finding on material questions of fact
 Refer to the evidence/material upon which findings based
 May make oral decision at end of hearing but must make a written statement
afterwards

11.3.1 – Part 7 reviewable decisions

Making a Valid Review Application

1. Form
2. Fee
3. Time

Fee – MRD
Prescribed in s 347 and reg 4.1.2-4.1.3
 Biennials increase
 Currently $1764
o Fee halved if:
 Financial hardship
 Successful application

Fee – Refugee Division

Prescribed in s 347 and reg 4.1.2-4.1.3
 Biennials increase
 Currently $1826
o Fee halved if:
 Financial hardship
 Successful application

Part 7 Decisions – Procedure

 S 420
o Not necessary to observe technicalities, legal forms and rules of evidence
o Act according to substantial justice and merits of the case
 S 424
o AAT can obtain any information it considers relevant
o Can make decision if information not given
 Right to oral hearing lost if no response
Adverse information
 Section 424A
o AAT must invite applicant to comment on it
o Unless non-disclosable
o If no response
 Lose right to oral hearing
 Likely to be a negative decision

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Hearings
 Conducted in private
 Can make a favourable decision on the papers
 Must be RA right to appear unless no response to request for information
 All PV decisions censored

Evidence
 By phone, CCTV…
 RA can:
o Request witnesses
o Appoint agent/solicitor
o Request interpreter
 AAT can require Dept to make investigations/medical exams and provide reports

Decisions
 Sets out decision and reasons
 Sets out finding on material questions of fact
 Refer to the evidence/material upon which findings based

113.2 – AAT General Division Process

Fee – General Division

Prescribed in AAT Regulations 1976
 Biennial increase
 Currently $952
 Fee reduced in certain circumstances
Hearing
RA may:
 Appear to give evidence
 Appoint RMA/Solicitor
Also
 Generally public hearing
 AAT may summons persons

Special Provisions for s 500 Reviews

 No statement of reasons provided
 Review application and decision letter and documentation
AAT must
 Notify Minister
 Wait 14 days before hearing
 Provide documentation to Minister
 Make decision within 84 days of original decision

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Module 12 – Judicial Review in Migration Decisions

12.1 Attempts to thwart judicial review

What is Judicial Review?

For migration decisions:
Review by the Federal Circuit Court, Federal Court or High Court of Australia:
• “It is where a court reviews a decision to make sure that the decision-maker used the
correct legal reasoning or followed the correct legal procedures” (ARC “The Scope of
Judicial Review – 2003 Discussion Paper)

Comparing to merits review

“It is not the function of the court to substitute its own decision for that of the administrator
by exercising a discretion, which the legislator has vested in the administrator.  Its role is to
set limits on the exercise of that discretion, and a decision made within those boundaries
cannot be impugned” (Mason J (as he then was) in Minister for Aboriginal Affairs v Peko-
Wallsend Ltd (1986) 162 CLR 24, 40-41) 

Prior to 1993
• Judicial review for migration decisions the same as for other administrative decisions:
▪ Administrative Decisions (Judicial Review) Act 1977 (Cth)
▪ s39B Judiciary Act 1903

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▪ S75(v) Constitution

First attempts to limit

 1980s & 1990s: massive increase in Federal Court judicial review
 Government tried to limit judicial review:
 Migration Reform Act 1992 (Cth): created Part 8 Migration Act 1958
& other legislation - initially reduced the number of successful cases

Migration Act Part 8

Part 8 excludes the application of the AD(JR) Act 1977 (Cth), which would otherwise apply
• section 474 (the privative clause);
• section 476 (Federal Circuit Court jurisdiction)
• section 476A (limit on Federal Court’s role in judicial review)
• section 484 (exclusive jurisdiction of Federal & High Courts)
• sections 477, 477A and 486A (time limits for judicial review

Reasons for restrictions

• Existence of extensive merits review
• Ongoing conflict between Federal Courts and the executive because of Federal
Court’s expansive reading of old Part 8 created by Migration Reform Act 1992 (Cth)
• Too many appeals from tribunals to Federal Court and High Court
• Perceived abuse of judicial review system

What is a privative clause?

A legislative provision intended to exclude review, by the courts, of administrative decisions
made under the migration legislation.
474(1) A privative clause decision:
a) is final and conclusive; and
b) must not be challenged, appealed against, reviewed, quashed or called in question in
any court; and
c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any
court on any account.

But is it valid?
Short answer is YES
BUT…
Not if the decision-maker has made a jurisdictional error!

Dept explanation
Section 474 (the “privative clause”) of the Migration Act was enacted with the intention of
restricting access to judicial review. The clause has been interpreted narrowly by the courts,
however, and now has little practical operation. Decision makers must always act in
accordance with their delegated legislative powers and responsibilities. A failure to do so is
likely to result in decisions being overturned on review. (PAM3 GenGuideA Visa App
Procedures)

12.2 Jurisdictional error trumps privative clause

Plaintiff s157 and s134

The High Court ruled:

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• Parliament had power to enact ‘privative clause’ legislation

• Privative clauses are valid
BUT: Decisions affected by ‘jurisdictional error’ are not privative clause decisions
• Decisions affected by ‘jurisdictional error’ are not actually decisions at all

What is a jurisdictional error?

MIMA v Yusuf (2001) 180 ALR 1

High Court upheld Craig v South Australia

‘Jurisdictional error’: decision maker or tribunal:
Falls into an error of law identifies a wrong issue; asks itself a wrong question; ignores
relevant material; or relies on irrelevant material; and makes erroneous finding; reaches
mistaken conclusion If so, the decision maker has exceeded its authority or power and has
made a jurisdictional error.

Common categories of jurisdictional error

• Identifies wrong issue or asks the wrong questions
• Consideration of irrelevant material or failing to consider relevant material
• Fails to follow mandatory procedures
• Doesn’t consider the entirety of the applicant’s claims as made
• Actual or apprehended bias
• Illogical, irrational, unreasonable decision

Examples
Ignoring relevant material:
Khanam v Minister for Immigration (2009) 111 ALD 421
MRT failed to consider stated reason for applicant’s motive for visiting mother in Australia

Taking irrelevant material into account

Sidhu v Migration Review Tribunal [2004]FCAFC 341; BC200409037  
MRT found student to be “non-genuine” by taking into account that he ultimately wished to
secure permanent residence in Australia.

Failure to follow mandatory procedure

SAAP v Minister for Immigration (2005) 228 CLR 294
RRT failed to comply with mandatory requirement to put any adverse information to the
applicant in writing

VFWY v MIMIA [2005] FCA 1723: the interpreting was so poor that the FC considered there
was no hearing

SZFDE v MIMAC [2007] HCA35: High Court held that the fraudulent behaviour of the
removed migration agent affected the decision

Practical Effect of s 157

• To determine whether there is jurisdictional error,
• Court must hear review application!

12.3 Judicial Review process

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After s 157
• Only avenue was direct application to High Court
• Parliament gave Federal Magistrates Court the same original jurisdiction as High
Court
• Also gave Federal Court limited jurisdiction

Jurisdiction of the Federal Circuit Court FCCA – Section 476

The FCCA reviews all migration decisions except:
(a) a primary decision:
A decision that was Part 5, 7 or s500 merits reviewable
but no review was sought

Primary Decision – s 476(4)

Primary decision means a privative clause or purported privative clause decision (see s5E)
that:
• is reviewable under Part 5 or 7 or section 500 whether or not it has been reviewed or
• would have been reviewable if an application for such review had been made within a
specified period

Federal Circuit Court: No jurisdiction for:

(b) a privative clause decision, or purported privative clause decision, of the Administrative
Appeals Tribunal on review under section 500;
(c) a privative clause decision, or purported privative clause decision, made personally by the
Minister under section 501, 501A, 501B or 501C;
(d) a privative clause decision or purported privative clause decision mentioned in subsection
474(7).

Limit to Federal Court Jurisdiction s 476A

Section 476A (1)(b) - the decision is a privative clause decision or purported privative
clause decision of the Administrative Appeals Tribunal under section 500 of the Act; or

Section 476A (1)(c) - the decision is a privative clause decision or purported privative
clause decision made personally by the Minister under sections 501, 501A, 501B or 501C of
the Act

High Court of Australia

Original jurisdiction under s 75 of the Constitution:
• …to make it constitutionally certain that there would be a jurisdiction capable of
restraining officers of the Commonwealth from exceeding Federal power: Bank of
NSW v The Commonwealth (1948) 76 CLR 1 at 363.
Appellate jurisdiction to review decisions of the FCA where special leave granted –
judgements binding on all lower courts
Parliament cannot limit the jurisdiction.

Outcomes
A Court cannot remake the decision.
It can either:
• dismiss the application; or
• 'quash' or set aside decision

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If successful:
• visa refusal - case returns to the Tribunal
• cancellation – it is as if the visa was never cancelled (but it may have long expired)

Time limits
Section 477(1)  
• Application within 35 days of the date of the migration decision.
• No deemed notification date

Section 477(2)      
• FCC may extend TL if in interests of administration of justice

Section 477(5)      
• 35 days begins to run irrespective of the validity of the migration decision. 

FCA – s 477A
HCA - s 486A

Visa status during JR

BV will expire 35 days after notification of decision
If apply for JR within time will normally be entitled to same BV
MUST APPLY FOR NEW BRIDGING VISA

Caution
Section 486I lawyer certifies in writing - reasonable grounds for believing - reasonable
prospect of success
Section 486E(1)…must not encourage litigant to commence or continue migration litigation
if it has no reasonable prospect of success;
Section 486E(2)…
“migration litigation need not be:
• (a) hopeless; or
• (b) bound to fail;
for it to have no reasonable prospect of success.”

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