Recent Federal Court of Australia Decision may Impact Validity of Notification Letters from the Department of Home Affairs

On 9 May 2023 Justice Markovic handed down a decision in the Federal Court of Australia on the question of when a person is deemed to have received notice of a decision to refuse a visa application by the Department of Home Affairs (Department).

In the decision of Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434, the Judge found that Mr Sandor had not been properly notified by the Department of the decision to refuse his Student visa application. As there had been no valid notification of the decision, the time to lodge an application for review to the Administrative Appeals Tribunal (AAT) had not yet commenced to run.

Mr Sandor had appointed a registered migration agent as his authorised recipient of correspondence sent by the Department in relation to his Student visa application. On 13 February 2018 a delegate of the Department sent an email to the migration agent, attaching a letter notifying the applicant of the decision to refuse the Student visa application and the reasons for the decision (Notification Letter).

Mr Sandor unfortunately failed to lodge an application for review to the AAT within 21 days of the Department’s decision. He lodged an application to the AAT out of time. As such, the AAT found that it did not have jurisdiction to consider the application for review.

At first instance, the Judge in the Federal Circuit and Family Court of Australia held that the AAT had validly found that it did not have jurisdiction to consider the matter.

However, on appeal to the Federal Court of Australia, Mr Sandor was successful. Justice Markovic found that there had been invalid notification of the delegate’s decision as the notification failed to comply with the elements of section 66(2) of the Migration Act 1958 (Cth) because the Notification Letter did not completely or clearly include all relevant information required for Mr Sandor to calculate the time in which an application for review to the AAT can be made. The Notification Letter failed to provide any detail of when the letter was sent by email to Mr Sandor’s registered migration agent. The failure to include the date on which the Notification Letter was transmitted to the migration agent resulted in an invalid notification of refusal.

This is a significant decision as applicants who have failed to apply for review to the AAT within the relevant timeframe may find that the notification of decision was invalid and they may yet be able to apply for review to the AAT.

Australian Minister for Home Affairs Announced “A New Migration System”

“Focus is on quality and skills. It is not about bigger population or more people, the new direction will have smaller migration program over time.”
“Our current migration system is broken and unfair.”

The new direction emphasizes ending the “ad hoc” and “piecemeal” approach to the Australian migration systemes and seeks to establish a redesigned system that attracts skilled individuals. The proposed reforms include restructuring temporary skilled migration, reducing bureaucracy, ensuring the right outcomes for migrants in Australia, and restoring Australian values. This article provides an overview of the proposed directions and immediate changes announced by the Minister.

• Migration Program will be simplified and move away from specific occupation lists, but will have a broader skill list.
• Points test for PR will stay, but “bar” will be lifted.
• Income threshold for skilled migration of $53,900 is outdated. Increase to $70,000 on 1 July 2023.
• Welcome international students, but tightening up and lifting standards to make sure good students are actually here to study.

Restructure temporary skilled migration
To address the current challenges and streamline the temporary skilled migration program, the proposed reforms outline three (3) new pathways for temporary skilled migrants. These include:
a) Fast and simple pathway for highly specialized skills
b) Mainstream skilled pathways based on proper evidence of labour skill shortages. (Proposed increase income threshold from $53,900 to $70,000 p.a.)
c) Essential industry -But will tackle exploitation and “fake students” who are here to work.
Recognizing the need for a more efficient and responsive migration system, the proposed reforms suggested that the current “bar” for permanent residency (PR) is considered to be too low, and the test will be revised to ensure that only highly skilled individuals meet the requirements for PR.

Reduce Bureaucracy
Additionally, the government plans to simplify the visa system by reducing the number of visa categories and utilizing data-driven insights to determine areas where particular skills are required. These changes aim to streamline the application process and align migration with the needs of the Australian job market.

Right Outcome for Migrants in Australia
It was suggested that Australia needs to better plan for population increase. There will be increased flexibility for migrants to move employers and enforce their workplace rights. Simpler pathways will also be established for international students to become permanent, ensuring that high-performing students can continue to stay in Australia. However, stricter measures will be implemented to ensure that only genuine students are allowed entry into the country, raising the standards and tightening regulations.

Restore Australian Value
• Strengthen integrity by increasing monitoring to prevent exploitation.
• Stricter governance on migration agents and education agents.
Addressing concerns related to exploitation, the proposed reforms emphasize the strengthening of integrity measures by increasing monitoring. Stricter governance of migration agents and education agents will be applied to ensure compliance with regulations.

• From 1 July 2023: Minimum income threshold increases to $70,000 p.a.
• By end of 2023: Current temporary workers and all skilled workers will have pathway to PR.

No mention was made about the current business and investment visa program in the announcement.
However, during Q & A, the Minister mentioned that Australia has enough capital. The focus is on the quality of skilled people. There will be changes to the 188 visa program, focused on quality of skilled entrepreneurs and drivers of economic growth, rather than simply their financial capital.

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

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.



Upcoming changes to the Franchising Code of Conduct

In August 2020, the Government released its response to the Parliamentary Joint Committee on Corporations and Financial Services inquiry into the operation and effectiveness of the Franchising Code of Conduct report: Fairness in Franchising.

The response outlines a number of changes that will be made to the Franchising Code of Conduct (Code) which include the following:

  • Cooling Off/Disclosure Period – the Code will clarify that the cooling off and disclosure periods are measured in calendar days and clarify that the 14-day disclosure period must begin at least 14 calendar days before signing a Franchise Agreement
  • Cooling Off – cooling off rights will be extended to the transfer of an agreement to a new franchisee and where the franchisee enters a substantially new agreement with the franchisor (a deemed transfer) but not to renewals or extensions
  • Early Termination – the Code will allow a franchisee to terminate the Franchise Agreement at any time up to 14 days after the last of certain events have occurred, such as:
      • the agreement being signed;
      • payment being made;
      • disclosure documents being received; and
      • a copy of the terms of the lease having been received (if applicable)
  • Format – Disclosure Document and Franchise Agreement must be made available in both electronic and hard copy format
  • Information Statement (Annexure 2 of the Code) must be provided to prospective franchisees separately and prior to providing the Disclosure Document and other disclosure materials
  • Legal fees – the Code will prohibit (and have pecuniary penalties for) franchisors passing on the legal costs of preparing, negotiating and executing documents to the franchisee (except where it is already incorporated into a joining fee)
  • Lease – clause 13 of the Code (“Copy of lease”) will be amended to require a franchisor’s interests in a leasing arrangement to be disclosed in a new Key Disclosure Information Fact Sheet
  • Penalties for Breaches Doubled – penalties for a breach of the Code will be doubled
  • Financial Information – any financial information provided must be part of the Disclosure Document, which must include a statement on the accuracy and appropriateness of the franchisor’s financial information
  • Significant Capital Expenditure – the Code will:
      • prohibit franchisors from requiring franchisees to undertake significant capital expenditure, except where it has been disclosed before  entering into a Franchise Agreement, is legally required, or is agreed to by the franchisee during the term
      • introduce an obligation to discuss expenditure prior to entering into a Franchise Agreement
      • require disclosure of the circumstances under which the franchisee is likely to recoup the expenditure
      • require franchisors to specify the amount, timing and nature of the expenditure (as practically as possible)
  • Dispute Resolution Processes introduce conciliation and voluntary binding arbitration. The Code will also clarify that, if the person conducting the dispute resolution process determines it is appropriate to conduct a multi-party process, the franchisor cannot refuse to take part in that process
  • Supply Arrangements require franchisors to disclose more information on supplier rebates, commissions and other payments and to disclose any master franchisor controls and/or rebates from suppliers
  • Marketing Funds clarify requirements relating to the treatment and reporting of marketing funds and introduction of penalties for breaches of clauses that relate to the use of marketing funds
  • Exit Arrangements ensure end-of-term arrangements for franchisee goodwill are clearly specified in the Disclosure Document and clarify a franchisee’s entitlement to goodwill in the Franchise Agreement
  • Termination clause 29 of the Code will be amended to require the franchisor to provide the franchisee with 7 days’ notice of a proposed termination in special circumstances (e.g. for fraud or public health and safety), so that a mediator or arbitrator can assist the parties to negotiate
  • Restraint of Trade technical changes will be made to clause 23 regarding the effect of restraint of trade clauses in Franchise Agreements (if the agreement is not extended)

A new mandatory Key Disclosure Information Fact Sheet will be introduced containing information taken from the Disclosure Document and highlighting key information, obligations and risks associated with entering a particular Franchise Agreement (such as financial information to assist prospective franchisees in assessing the time that they will need to commit to the business, franchisee entitlement to goodwill etc)

Information Statement

The Information Statement (Annexure 2 of the Code) will be updated to include the following information:

  • Encourage prospective franchisees to refer to the Disclosure Document to see if a franchise system has a high turnover of sites (to look out for possible ‘churning and burning’)
  • Outline risks with estimating labour costs, particularly for greenfield sites
  • Place an obligation on prospective franchisee to obtain information about employment matters and compliance with employment law
  • Clarify that if the franchisor becomes insolvent, the prospective franchisee may lose the benefit of shared funds (such as marketing funds)
  • Warn prospective franchisees of the need to obtain advice about restraints of trade before entering the agreement
  • Prospective franchisees will be made aware of the use of ‘no agent’ and ‘entire agreement’ clauses

If you require specific advice regarding the content of your Franchise Agreement or would like us to review your franchise documents, please contact us at [email protected].


Additional Changes to JobKeeper Payment

We recently published an article detailing the changes to the JobKeeper payment and the extension announced by the Federal government:

Due to the increased lockdown measures in Victoria forcing several industries to cease working, on 7 August 2020 the Treasurer Josh Frydenberg announced additional changes to the JobKeeper payment.  We provide the following update on these changes.

The changes include moving the relevant date of employment for employees and changing the employer’s eligibility requirements for the JobKeeper extension. The relaxation of the eligibility requirements means more support to employers and their workers.

Employer eligibility

Under the previous guidelines, a business would have needed to record an actual GST turnover loss for the June, September and December quarters of this year to be eligible for the JobKeeper extension.

The new changes for employer eligibility are:

  • From 28 September 2020, eligibility will be determined by assessing actual GST turnover in the September quarter, 2020 only;
  • From 4 January 2021, eligibility will be determined by assessing actual GST turnover in the December quarter, 2020 only.

Employee eligibility

From 3 August 2020 the relevant date of employment moved from 1 March 2020 until 1 July 2020, meaning an employee who was employed before 1 July 2020 will be eligible for the JobKeeper payment provided their employer is eligible. This includes:

  • casuals who have been with their employers on a regular and systematic basis and have achieved 12 months service by 1 July 2020; and
  • employees who hold a permanent visa or a Special Category (Subclass 444) visa as at 1 July 2020.

Further information can be found at:

If you require specific advice concerning the interaction between the Fair Work Act 2009 and the JobKeeper Payment program, please contact us at [email protected].

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