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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.
SUMMARY
• 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.
IMMEDIATE CHANGES
• 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.
BUSINESS MIGRATION PROGRAM
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.
Orana House Fund Raising Event
Introduction
TANGLAW is proud to coordinate a fundraising event for Orana House, a charity foundation that provides essential support to women and children experiencing domestic violence. The event aims to raise $10,000 for its court support program.
Specially trained staff at Orana House transport and assist their clients every step of the way: lodging VROs, advocating and helping them to understand protocols, terminology and paperwork.
All of this helps to ensure a smoother process and reduce pressure.
But, most importantly, they sit side-by-side with the clients and provide the emotional support that is most needed.
About Orana House
Orana House is a non-profit organization based in Western Australia that provides crisis accommodation and support services to women and children who are experiencing domestic violence. The organisation also provides counselling and outreach services, as well as a 24-hour crisis phone service.
Event Details
The fundraiser event will be held on 12th May 2023, 4.30PM at TangLaw Level 7/12 St Georges Terrace, Perth WA. The evening will feature drinks and refreshments, speeches, and a raffle, with all proceeds going directly to Orana House. The event aims to raise $10,000 to support the organisation’s ongoing work.
You can register to attend using the following link: Orana House Women’s Refuge Sundowner Tickets, Fri 12/05/2023 at 4:30 pm | Eventbrite
If you are unable to attend but would still like to show your support, please donate to Orana House here: www.orana.net.au/donate
Please share this invitation with your colleagues or anyone else who may be interested.
Importance of recent Federal Court decision Pearson v Minister for Home Affairs [2022] FCAFC 203
Under Section 501(3A) of the Migration Act 1958 (Cth)(“Act”), a visa holder is subject to mandatory visa cancellation if:
- The person does not pass the character test because of the operation of:
- paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
- paragraph (6)(e) (sexually based offences involving a child); and
- 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.
