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A person can apply for a temporary stay in Australia, by means of applying for a visitors visa. Typically a person may be granted a 12 month visa, but with the requirement to leave Australia after a 3 month stay at a time.
There are two main ways of doing this. Citizens of some countries can apply for an electronic visitors visa. The Department of Home Affairs provides a list of eligible passport holders, who can apply for this visa. It is preferable to apply for one of the two electronic forms of visa – the Electronic Travel Authority (subclass 601) or the eVisitor visa (subclass 651).
An electronic visitor visa application is made through ImmiAccount, the Department of Home Affairs online lodgement system.
If a person is not eligible (on the basis of what passport is held) to apply for one of the electronic visas, an application for a subclass 600 visitor visa needs to be made. This can also be lodged through ImmiAccount, but can also be lodged directly with the Department overseas (through an Embassy or lodgement centre).
A person can also apply for a visitor’s visa onshore, while in Australia. In this circumstance a paper application needs to be lodged. Before doing this, a client should check whether Condition 8503 is on the her or his visa. This condition prohibits a person from lodging a valid visa application in Australia. Condition 8503 is not found on an electronic visitor’s visa, but may be found on a visitor’s visa granted the 600 visa.
Visa holders of the non-electronic variety should of course check whether Condition 8503 is on a visa, if the person wishes to apply for a Partner or Student visa onshore. Condition 8503 does not apply to Protection (refugee) visa applicants in Australia.
Why the Department may reject a visitor’s visa application
The Department of Home Affairs may reject a visitor visa application where it thinks the person will not return to their home country. For instance if a relative has applied onshore in Australia for a visa and the Department thinks the applicant might do this, or the person is coming from a conflict zone and may apply for a Protection (refugee) visa in Australia, or where there are family in Australia but none in their home country, or where the person is unemployed in their home country, the Department may reject an application.
The Department examines the amount of money the person has, or has access to, to cover their stay in Australia (a Departmental officer may conclude that a person having a very small amount of money may work to sustain their stay (work is prohibited on a visitor’s visa)).
In spite of being able to show evidence of an intention to return, the Department regularly rejects visitor visa applications from non-electronic visa countries. It is important that a visitor visa application is prepared as well as possible. Even in this case an application may be rejected, but the prospects are less where an application is thoroughly prepared.
Some people who apply for a visitor visa, where there are close relatives in Australia, can apply to the MR Division of the Administrative Appeals Tribunal for merits review in the event of a rejection. However the Tribunal is very slow in responding to cases, and regularly takes at least 12 months and more, to provide a Hearing. Given the delays in the Tribunal process, it is generally advisable to lodge a further visitor visa application if the Department has already rejected one. New evidence and submissions should be made to the decision maker, in the making of a subsequent visitor visa.
A longer term visitor visa for parents – to operate from 1 July 2019
The Department of Home Affairs has announced that a parent visa which effectively serves as a long term visitor visa (for parents), will operate from 1 July 2019. A separate sponsorship will be involved for the visa. The Department expenses involved however are relatively high – there is a $5,000 Departmental fee for a 3 year visa, or a $10,000 fee for a 5 year visa (together with a $420 application fee for the sponsorship). The advantage of this visa is that the holder does not need to so regularly leave Australia, as required by the usual form of visitor visa granted (a three month stay at a time limitation, over a 12 month total visa life). The usual no work requirement will apply to this visa.
There are a number of ways the Department of Home Affairs may cancel a visa, either a temporary or permanent one.
A common way of the Department cancelling a visa (after of course it has been granted), is by section 116 of the Migration Act. This can occur if circumstances which permitted the grant of a visa no longer exist, a visa holder breaches a condition of their visa, if a person becomes a public safety or health risk, the visa was granted on grounds which were false or falsified, if incorrect information was provided by a visa applicant or if a person is not a genuine student, or various other grounds. .
Let me outline some common circumstances where the Department can take action to cancel a visa. A person may have been granted a temporary Partner Visa, but during the course of the waiting for the assessment and grant of the permanent Partner Visa, the couple broke up. A circumstance of the grant of the Partner Visa is that the person was in a marital or de facto relationship with an Australian sponsor. If that no longer exists, the Department can initiate cancellation procedures (it alternatively can refuse the grant of the Permanent Partner Visa).
Another example is a person on a 457 or Temporary Skills Shortage subclass 482 visa. If the visa holder no longer works for the original nominating employer, and does not find another nominating employer within 60 days, the visa can be cancelled (action would cease if evidence of a newly lodged nomination was before the Department).
In the event of a visa cancellation under S116, the Department must provide notice of the grounds of the intention to cancel, and give the visa holder an opportunity to respond (note, this does not apply to a visa holder overseas. The Department can cancel the visa without notice). It is not unusual a technical defect can be found in the Notice of Intention to Cancel.
If the Department proceeds to cancel a person’s visa under s116, a review application can be made to the Migration Division of the Administrative Appeals Tribunal. This must be sent within 7 working days of the notification by the Department of the cancellation decision.
Another provision used by the Department of Home Affairs, and the Minister personally, is s501 of the Migration Act. This section allows for the Department to refuse to grant a visa on the basis of a character issue of the visa applicant, or cancel the visa of someone already granted a granted (temporary or permanent).
At the end of December 2014 the Federal Government made certain amendments to the Migration Act to ostensibly strengthen the character provisions. What occurred is that many people with relatively minor convictions but amounting to one year’s sentence (cumulatively, added up) now failed the character test under s501. Some hundreds of New Zealanders found themselves on Christmas Island.
There are mandatory cancellation provisions under s501. However a person can apply for revocation of the cancellation (a reversal of the cancellation). If this is not successful, the General Division of the Administrative Appeals Tribunal can hear an application for review. The General Division is quite different procedurally to the Migration/Refugee Division, and is more court like and is adversarial. The Department commonly uses a solicitor and barrister to prosecute its case.
If the Tribunal does not find in favour of a person, where there is a jurisdictional error such as a breach of the principles of procedural fairness, a Court can set aside the decision of the Tribunal, or indeed the Minister. A Court can’t substitute a decision in favour of the visa holder or applicant, but will send the person’s case back to the Minister or Department to be assessed again in accordance with law.
Several decisions of the Minister have recently been set aside by the Courts, on the basis that the rule against refoulement has not been applied This rule stops the removal of a person to a country where that person may suffer significant harm. Several recent cases have said that the Minister cannot relieve himself of the obligation to assess this principle, by allowing a person to make a Protection Visa application.
Ministerial decisions have also been overturned on the basis of a breach of the rules governing procedural fairness (such as providing relevant information or documents to the visa holder or applicant).
It is important that a person apply for Australian Citizenship as soon as possible. That generally requires a 4 year lawful stay in Australia, with at least the last year with the person being a permanent resident. There are some limited exceptions to this. The Minister or Department cannot revoke a person’s Australian Citizenship (except where the Citizenship itself was gained by deception, or there are acts amounting to treason).
For more information on Citizenship, please see my posting on that subject. ( Note to Paul – if we had a citizenship blog category we could insert a row of blog post times like this example below
Note: 800 words.
Court Review Matters
Decisions by officers of the Department of Home Affairs and even the Minister for Home Affairs personally (in character cases for instance), are ultimately reviewable by the Australian Federal Court system, including the High Court…
Except where the Minister personally exercises a decision to cancel a person’s visa or refuse an application on character grounds under s501 of the Migration Act, in the first instance a body called the Administrative Appeals Tribunal will examine, afresh, a person’s circumstances. That is, review Tribunals examine all the facts and law of the case.
I will examine the workings of the Administrative Appeals Tribunal, in both its Migration/Refugee Division and its General Division, in a further article.
In the late 1990’s the Australian Government tried to restrict a person’s ability to have a Tribunal or Ministerial decision reviewed by the Federal Court system. This approach was rejected by the High Court in the case S157/2002. The High Court said that serious legal errors by the then Migration or Review Review Tribunal can amount to what is called jurisdictional error. Such an error means that the Tribunal exceeded its authority in deciding the application, with the result the decision was only purportedly made but was in fact invalid. In that circumstance, the application needed to be decided by the Tribunal again (with a different Tribunal Member presiding).
The High Court has recently said that a jurisdictional error is, amongst other things, a serious legal error made by a Tribunal or Minister. If there are other grounds for refusing an applicant’s case, a legal error will not be a jurisdictional error (meaning that the applicant will not get relief).
As you can see, it is not every sort of mistake by the Administrative Appeals Tribunal or Minister which can be successfully reviewed by the Courts. Only jurisdictional errors provide a remedy. If a person is successful in litigation before a Court, the relevant Judge will remit or send back the case to the Tribunal or Minister. The person’s matter must then be decided according to law. A Judge cannot make a recommendation that a visa be granted, or not cancelled.
A Migration Agent cannot assist a person in a Court matter. Only a legally qualified person can do this, such as a solicitor or barrister. A person can be self represented, meaning there is no adviser to assist the person. This is not preferable of course, as Court matters are complex and there are strict procedures which must be followed. However, a person is entitled to present their own case, if a person cannot afford professional assistance.
Typical mistakes by the Administrative Appeals Tribunal or the Minister which can be reviewed are: where the decision maker does not take into account a relevant consideration (such as important submission points, a key aspect of a person’s case), where an irrelevant consideration is taken into account by a decision maker, where the rules of procedural fairness are not followed (where an important document is not given to a client (unless there is a statutory exemption)).
There is a different financial aspect to Court reviews than before a Tribunal. These reviews are in a “costs jurisdiction”, which means that if the person going to Court loses the case, the Minister’s legal fees (the Minister defends the Tribunal) must be paid (there are Court Rules governing this). Equally, if a person is successful in Court, the Minister must pay the person’s legal expenses (what the Minister is obliged to pay is usually less than what a person’s legal expenses are).
Potential litigants should note that if unsuccessful, the Department will not grant a visa (apart from a bridging visa) without any outstanding legal fees of the Minister paid. However, as proceedings in Court may involve a person’s last chance of obtaining a visa, there may well be “nothing to lose” if there are reasonable merits in the case.