Migrantlaw

15/07/2024

Registered migration agents: is there a crackdown coming?
In the past nine months there have been two independent reports to government that have recommended more powers for the OMARA and tougher penalties and increased requirements for registration and re-registration of migration agents. One report essentially accused the OMARA of failing in its job to investigate complaints against RMAs or take tough enough disciplinary action when they did investigate, and the other recommended more thorough background checks on agents as well as giving the OMARA search warrant powers to enter and search agents' places of business.
In addition, there are discussions going on now about extending AMLCT (Anti-money laundering and counter-terrorism) laws to a wide ranga of professionals including lawyers and possibly migration agents.
But there is still a lot you can do to protect yourself and your business if the OMARA comes calling. Do you know about the Complaints Classification Matrix? You should.
I will be facilitating a 2-point CPD workshop on dealing with the OMARA on Saturday 17 August as part of a 10-point two-day program for RMA Training Pty Ltd, an Approved CPD Provider.

CPD points for registered migration agents

12/07/2024

If you are a partner visa applicant in Victoria (300, 309, 100, 820, 801) and have a "non-judicial family violence claim", I strongly recommend connecting to the Orange Door service of the Victorian Government. I have just successfully obtained a partner visa 801 for a client which included a report from Orange Door which was very helpful in explaining the coercive control and gaslighting the client had been subject to. The report satisfied the Family Violence Support Service Provider type of evidence required by the Department of Home Affairs.

The Orange Door provides help for people experiencing family violence, or who need assistance with the care and wellbeing of children and young people.

07/05/2024

Never give up!
Nearly six years after a delegate cancelled my client's student visa in a decision that gave three separate and incorrect dates for when he had been enrolled, followed by a Tribunal decision in which the Member did not accept that someone who was hospitalised for two weeks for an urgent surgical procedure would have been suffering from symptoms for some time before the date of admission, an appeal to the Federal Circuit Court which was so obvious the Minister's lawyers consented to remittal, but only after sitting on it for three and a half years, the decision has finally be overturned by the Tribunal with just a few months to spare for my client to get a new student visa in time to complete his studies.

06/12/2023

So much happening so fast.
I can't remember a time when there were so many things happening at the same time in immigration law.
I will be trying to make some sense of it on Friday 15 December as part of a 10 point CPD workshop lineup.

CPD points for registered migration agents

02/11/2023

Australia to have visa lottery system

For the first time in the history of immigration law in this country the government is proposing to introduce a lottery (or "ballot") as part of the immigration selection system.

The Migration Amendment (Australia’s Engagement in the Pacific and Other Measures) Act 2023 will come into effect on a date to be fixed by proclamation, or at the latest on 27 April 2024. According to the Explanatory Memorandum it allows the Minister to "implement a visa pre-application process, involving random selection of eligible persons who will then be permitted to apply for a relevant visa", which the EM says can be conveniently described as a "ballot", as a requirement for being allowed to apply for certain visas. The "primary and immediate purpose" is that the ballot will apply to a proposed Pacific Engagement Visa to "provide access to permanent residence in Australia for an annual quota of citizens of certain Pacific countries and Timor-Leste". However once implemented a ballot could be easily imposed on any type of visa application in future.

The new legislation envisages that people applying to take part in the ballot will have to pay a fee.

https://www.legislation.gov.au/Details/C2023A00086

https://austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/bill_em/maeitpaomb2023661/memo_0.html

Australasian Legal Information Institute (AustLII), a joint facility of UTS and UNSW Faculties of Law.

11/10/2023

Add this to the list of absurd inconsistencies in the Migration Regulations.

A secondary applicant for a 309 offshore provisional partner visa must be a member of the family unit (MFU) of the primary applicant both at the time of application and the time of decision. To be an MFU a child must be dependent AND under 23 or incapacitated for work. So if the application has not been decided by the time the child turns 23, they cannot be granted the visa.

A secondary applicant for an 820 onshore provisional partner visa need only be a dependent child of the primary applicant at the time of application and still dependent at the time of decision. They don't have to be an MFU, so the 23 year age limit does not apply. 😣

05/10/2023

The "Rapid Review into the Exploitation of Australia's Visa System" and the government's response
Made public today, the long-awaited review by Christine Dixon (which was actually given to the government in March) and the government's response to the 30 recommendations.
RMAs are a target of much of the Review's criticism and in response are to come in for a lot of scrutiny and tougher regulation.
I will be delivering a 2 point CPD workshop on the review and recommendations for RMA Training on 20 October.
https://www.homeaffairs.gov.au/.../rapid-review...
https://www.rmatraining.com.au/next-event.html

29/09/2023

Finally after almost six years dragging through the Federal Circuit Court my client's application for judicial review of a decision of the IAA has been upheld. Multiple hearings, affidavits from both sides, subpoena to Australia Post, cross-examinations of witnesses. Still, I have to tell her that it's not over yet, we have won a battle but not the war and her claims which have now been on the "fast track" for over a decade will once again be subjected to the "limited review" process of the IAA.

Australasian Legal Information Institute (AustLII), a joint facility of UTS and UNSW Faculties of Law.

24/09/2023

When is a "bond" a sentence of imprisonment, and when is it not?

If you have recently lodged a partner visa application you may have noticed that it is now standard practice for the sponsor to be required to provide police clearances, even if there are no minors included in the application. The purpose is to assess whether the sponsorship may be subject to refusal under reg 1.20KC because the sponsor has been convicted of a "relevant offence" AND has a "significant criminal record" in relation to that offence.

The definition of "relevant offence" is both broad and narrow in its terms. It covers any offence against a law of the Commonwealth, a State or Territory, or a foreign country that "involves" certain matters listed under the definition. Just what "involves" means is not clear.

Even if the sponsor has been convicted of such an offence, they must still have a "significant criminal record" in relation to that offence, as defined in reg 1.20KD, being that they must have been sentenced to death, to life imprisonment, or to a term or terms of imprisonment totalling 12 months or more for the relevant offence or offences. The key term here is "imprisonment", which is defined in s 501(12) of the Act to include "any form of punitive detention in a facility or institution". What matters is the length of the sentence, not the time actually served in prison (if any).

Criminal matters in Australia are usually dealt with under State or Territory laws, all of which differ widely in their sentencing procedures and terminology. In NSW where I practice, the Crimes (Sentencing Procedure) Act 1999 allow for a person to be sentenced to a good behaviour bond instead of imprisonment (s 9), or to a term of imprisonment which is then suspended under an intensive correction order (s 10) or a good behaviour bond (s 12). The first is NOT a sentence of imprisonment, while the other two are, even if no time is actually served. Other jurisdictions have different sentencing options. In Victoria the legislation allows for the sentencing procedure to be adjourned subject to the offender entering into certain "undertakings". In South Australia a good behaviour bond may be imposed without a sentence of imprisonment, or as a condition for suspending such a sentence. Then of course, there is the complex question of foreign jurisdictions.

Even the term "convicted" can be confusing. In most States the courts have an option of a "finding of guilt" without recording a conviction. Obviously no sentence of imprisonment would flow from such a finding. Recently the High Court looked at a provision in Queensland law which allowed for a past conviction to be treated as never having been a conviction (Thornton [2023] HCA 17).

Anyone who receives a natural justice notice under 1.20KC would be well advised to seek professional advice before responding.

https://austlii.edu.au/cgi-bin/viewdb/au/legis/cth/consol_reg/mr1994227/s1.20kc.html

28/06/2022

MARA's Complaint Classification Matrix

Hidden away in the Migration Agents Instructions section of PAM is a very important document for any RMA facing difficulties with MARA. Called the "Complaint Classification Matrix", it classifies complaints against agents into "minor", "moderate" and "major" categories and sets out the criteria for each classification as well as the possible outcomes. Interestingly, if the complaint fits into the minor category, no formal disciplinary action (caution, suspension or cancellation) is likely.

The worst thing you can do if you get a complaint is to ignore it. Pull out the matrix and especially look at the "future risk indicator" column.

And get some help.

05/04/2022

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