Importance of recent Federal Court decision Pearson v Minister for Home Affairs [2022] FCAFC 203

Blog & Articles, Immigration Department of Australia, Immigration Law, Migration Law

Under Section 501(3A) of the Migration Act 1958 (Cth)(“Act”), a visa holder is subject to mandatory visa cancellation if:

  1. The person does not pass the character test because of the operation of:
    1. paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
    2. paragraph (6)(e) (sexually based offences involving a child); and

 

  1. the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

A “substantial criminal record” on the basis of paragraph (7)(a), (b) or (c) of the Act is where a person has been sentenced to death (7)(a), imprisonment for life (7)(b), or a term of imprisonment of 12 months or more (7)(c).

Until the Pearson judgment was handed down on 22 December 2022, an aggregate (combined) sentence of at least 12 months’ imprisonment has triggered mandatory visa cancellation.

Pearson v Minister for Home Affairs [2022] FCAFC 203

The Full Court’s decision in Pearson v Minister for Home Affairs [2022] FCAFC 203 found that an aggregate sentence of imprisonment of at least 12 months did not constitute a ‘term of imprisonment of 12 months or more’ and therefore would not result in a mandatory visa cancellation under s 501(3A) of the Act.  

The Full Court’s reasoning behind this is that mandatory visa cancellation should only be enlivened for the most serious offences, such as those attracting the death penalty, life imprisonment, a term of imprisonment of 12 months or more for a single offence, or sexual offences involving children. The Full Court held the view that the mandatory cancellation was “reserved for the most serious offences”.

Moreover, the Full Court also found that an aggregate sentence itself says ‘little to nothing about the seriousness of the individual offences’.

Consequences

The Pearson decision set a precedent that mandatory visa cancellation is not enlivened when the sentence imposed is an aggregate sentence of imprisonment of 12 months or more. The consequences of the decision made in Pearson case are substantial and there are reports that up to 100 people have been released from immigration detention since the decision.

However, the Migration Amendment (Aggregate Sentences) Bill 2023 was introduced to clarify that s501(7)(c) applies in relation to a person sentenced to a term of imprisonment of 12 months or more, whether the sentence is imposed for a single offence or for 2 or more offences.

This Bill was passed through both Houses of Parliament on 13 February 2023 and will receive Royal Assent shortly, effectively undoing the precedent set in Pearson.

Updated processing times for Contributory Parent Visas

Blog & Articles, Migration Law

On 2 September 2022, the Australian Government announced that the planning level of Parent visas (both contributory and non-contributory) in the 2022-2023 Migration Program will increase from 4500 to 8500.

 

However, there is no certainty in processing times for Contributory Parent visa applications (onshore and offshore) as these visa applications are subject to capping and queueing. The Department of Home Affairs estimates that new Contributory Parent visa applications lodged that meet the criteria to be queued are likely to take at least 12 years to be released for final processing.

Please contact us if you would like any further information on Parent visa options.

 

Parent visas queue release dates (homeaffairs.gov.au)

New visa concessions offer permanent residency pathways for select skilled migrants and post-study visa rights for returning international students

Blog & Articles, Immigration Law, Migration Law, Tang Law, Tang Legal

On 25 November 2021, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs Alex Hawke announced new special temporary concessions for around 200,000 highly skilled visa holders in Australia.

 

These positive changes will take affect gradually from 1 December 2021 to 1 July 2022 and will primarily benefit the following visa holder groups:

 

  1. Temporary Skills Shortage visa (subclass 482) (TSS) and Legacy TSS (subclass 457) visa

 

The concession presents an exciting opportunity for 20,000 skilled migrants who remained in Australia during the pandemic, to be eligible for permanent residency. This will apply to:

 

  • primary holders of the TSS (short-term stream) who will no longer be subject to the two-year stay limitation in Australia; and
  • primary visa holders of the now discontinued subclass 457 visa who previously did not meet the age cap.

 

  1. Skilled Regional (provisional) visa (subclass 489, 491 and 494)

 

Current and expired visa holders of the skilled regional provisional visas, including the 9,000 holders who have remained overseas and unable to travel to Australia due to COVID border restrictions, will now be able to apply for a visa extension; offering additional time to meet the regional work requirements for a permanent residency application.

 

  1. Temporary Graduate visa (subclass 485)

 

The new concessions delivers targeted measures in support of Australia’s international education sector by awarding further study and post-study visa rights for students returning in the 2022 academic year including:

 

  • 30,000 current and former subclass 485 visa holders, whose visas expired on or after 1 February 2020 and unable to enter Australia due to border restrictions, will be able to seek a replacement subclass 485 visa to remain in Australia to live, study or work after graduation;

 

  • The stay period for students completing a masters by coursework will be extended permanently to three years to match that of masters by research graduate;

 

  • Vocational Education and Training (VET) sector graduates will also be receiving a two-year Subclass 485 visa.

 

  • Students who spent time completing online studies while offshore will continue to have their study recognised in meeting qualification requirements for the subclass 485 under the extension of existing measures; and

 

  • Streamlined application processing with the removal of the skills occupation list nomination requirements for the subclass 485 from 1 July 2022.

 

TANG LAW is pleased to hear of the Government’s continued recognition of skilled migrant workers and the return of international students to Australia in support of our COVID economic recovery efforts coming into the new year.

 

The Migration Team of TANG LAW has significant experience in preparing and lodging a variety of visa applications. If you would like to see advice on your immigration options, give us a call today and we can help you find the best pathway for your migration journey to Australia.

 

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Starick Information Event

Blog & Articles, Migration Law

Last week, Sophie Manera (Partner), Briony Chen (lawyer) and Alexia Avdoulas (law clerk) of the Migration Team at TANG LAW had the opportunity to present at an information event at STARICK. STARICK is a not-for-profit organisation that supports women and children escaping family and domestic violence.

Tang Law would like to extend our appreciation to all the staff in attendance for the great engagement during our presentation addressing visa options for women who are victims and/or survivors of family and domestic violence. The open discussion highlighted many common concerns:

  • Eligibility for a partner visa
  • Special provisions relating to family and domestic violence.
  • How to prove family and domestic violence to the Department of Home Affairs?
  • What happens with a visa or visa application if there is a relationship breakdown?
  • The common myth that a partner/sponsor can enforce a threat to cancel an applicant’s visa or visa application.
  • Other visa options for women including work or study visas based on skill and/or qualifications, or a contributory parent visa.
  • Available resources in the community.

It was also great to hear from members of the ‘Red Cross Financial Assistance Program’ presenting on a new program working to assist all people with temporary visa holders or those with uncertain visa status, experiencing family and domestic violence in need of financial support.

  • (from left to right: Starick CEO – Leanne Barron, Tang Law Partner – Sophie Manera, Tang Law Lawyer – Briony Chen)

Please contact these organisations directly if you are seeking assistance for family and domestic violence matters, or financial assistance as a temporary visa holder/uncertain visa status.

TANG LAW has significant experience in preparing and lodging visa applications. Give us a call today if you would like to know more about your most suitable visa pathway.

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Department of Home Affairs Doubled Number of Occupations on Priority Migration Skilled Occupation List

Blog & Articles, Migration Law

Last Tuesday, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Aff​airs announced the inclusion of 22 additional skilled professions on the Priority Migration Skilled Occupation List (PMSOL), expanding the list to 41 occupations.

The Migration Team at Tang Law are pleased to see the continued development of the PMSOL, and recognition of the support of critical sector workers in Australia’s COVID economic recovery efforts.

Now among those in line to fast-track their visa applications are IT and Software specialists, Accountants and Auditors, and Chefs.

Contact Tang Law if you would like to know more about your visa options.

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