Did you know that there is a pathway for family members of New Zealand citizens to live, work, and study in Australia for 5 years from the date of visa grant?
Penny Wong reaffirms Labor's commitment to Pacific permanent residency pathway
Foreign Minister Penny Wong today announced a new era in engagement in the Pacific, which includes a new permanent residency pathway and seasonal workers being able to bring their family with them to Australia (neither were permissible under the previous government). A win for the Pacific …and humanity!
To quote from her speech, which you can read in full here, she said:
Australia will do more, and will do it differently.
We will ensure that those Pacific Islanders who come to work in Australia are treated fairly – with better conditions.
We will allow workers to bring their families.
And we will create the pacific engagement visa – to provide a pathway to permanency for 3,000 members of our Pacific family per year.
But ultimately our relationship with our Pacific family is not a suite of initiatives. It cannot be counted in dollars or MOUs.
It is so much more.
During their election campaign, the Labor party pledged to introduce a new visa pathway for Pacific Islanders. The new Foreign Minister Penny Wong reaffirmed this commitment during her speech to the Pacific Islands Forum Secretariat, saying “We will create a Pacific Engagement Visa to provide a pathway to permanency for three-thousand members of our Pacific family per year”.
So how will it work?
The proposed Pacific Engagement Visa will mimic New Zealand’s lottery-style system, by which applicants are entered into a ballot pool. Each year, a set number of successful applicants will be drawn. There will be a quota of successful applicants from each country.
What will I need in order to apply?
Though the details are yet to be finalised, Labor has stated it envisions the pathway will be available to those between 18 to 45 years old, have some level of English, and have a job offer in Australia. Relevantly, Labor has also committed to covering some airfare costs of relocation, which had previously fallen to Australian employers.
Professor Stephen Howes, the director of the Development Policy Center at the Australian National University, said:
You are not advantaged by having more skills, so say, a doctor, and a bus driver, they can both apply for the lottery, so that is a good protection against the risk of brain drain.
There are more details to come as the Albanese government work to develop and realise the commitments made during their election campaign, so watch this space.
Double standard: the Djokovic saga
We are only 10 days in but 2022 has already brought with it so many surprises. One of which is the Djokovic saga. Who knew that an international tennis star could highlight many of the cracks in Australia's immigration legal system; the cracks we deal with on a daily basis on behalf of our clients.
Like Djokovic, individuals in immigration detention (asylum seekers and persons whose visas have been cancelled) have faced detention and difficulty accessing legal advice. Unlike the international tennis star, they have often been deported, in secret and without any opportunity for judicial review. For them, deportation means return to a place where they may face harm or death, separated from their families, or removed to a country they do not and permanently excluded from the only country (Australia) they know.
We need a process that is clearer and fairer.
Journalist for The Age, Sangeetha Pillai, wrote an excellent opinion piece, for those interested in further reading.
Success at the AAT: Revocation of Visa Cancellation Under s 501(3a) of the Migration Act 1958
Samuta McComber Lawyers represented the applicant in these proceedings, involving the Tribunal’s review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister). The Tribunal overturned the Minister’s refusal to revoke the cancellation of the applicant’s visa under s 501CA of the Migration Act 1958 (Cth), and substituted a cancellation decision, resulting in success for the applicant.
Under s 501CA(4) of the Migration Act, the cancellation decision may be revoked either: if the applicant passes the character test, or if there is another reason justifying revocation. Given the applicant had been sentenced to fifteen months imprisonment, his criminal record meant that he plainly failed the character test. The applicant’s case thus hinged on the second limb under s 501CA(4): whether there was another reason why the original decision should be revoked.
To determine this, the Tribunal turned to Ministerial Direction No.90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90). Direction 90 sets out primary and secondary considerations that are relevant when considering whether there are reasons that a visa cancellation decision should be revoked, as well as how to apportion weighting to each consideration. Primary considerations are set out in Paragraph 8 of the Direction as follows:
1. protection of the Australian community from criminal or other serious conduct;
2. whether the conduct engaged in constituted family violence;
3. the best interests of minor children in Australia; and
4. expectations of the Australian community.
Secondary considerations are set out in paragraph 9 of the Direction:
1. international non-refoulement obligations;
2. extent of impediments if removed;
3. impact on victims; and
4. links to the Australian community, including:
a. strength, nature and duration of ties to Australia; and
b. impact on Australian business interests
Regarding protection of the Australian community as a primary consideration, the Tribunal considered the nature and seriousness of the applicant’s conduct, and what risk it might pose to the Australian community should it continue. Despite finding that the seriousness and risk would be significant, the Tribunal was swayed to ultimately find this consideration only had moderate weight, given the low chance of recidivism.
Another primary consideration is the best interests of the minor children in Australia, namely the applicant’s biological children. Evidence tendered in the proceedings show the applicant to be a dutiful parent and integral to the household. The Member considered that his deportation would have a significant effect on the children, and thus gave this consideration heavy weight in favour of a revocation decision.
Turning to secondary considerations, the Member discussed Australia’s international non-refoulement obligations at length, drawing upon information about the applicant’s country of origin from sources such as the Department of Foreign Affairs and Trade, and the UN Office for the Coordination of Humanitarian Affairs. She concluded there was a considerable risk he would experience persecution based on his ethnicity if deported. Other secondary considerations favouring a revocation decision were his links to the Australian community.
Ultimately, the Member held that it was likely the applicant would be a better citizen than before if his visa was returned to him. She thus decided to substitute the Minister’s decision, and find that the cancellation of the applicant’s visa be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
Procedural reforms of Federal Circuit and Family Court migration proceedings
Migration proceedings in the Federal Circuit and Family Court of Australia (FCFCOA) have undergone changes to their procedure, making them similar to alike matters before the Federal Court of Australia. These procedural reforms are effective from 29 November 2021, and are rolled out in accordance with professional consultation undertaken in late 2020.
Previously, migration applications filed in the FCFOA registries were allocated a First Court Date listing. However, under the new protocols, applications are to be listed on a date-to-be-advised basis. If the Minister has filed a response to the application within eight weeks since an application is filed, then standard listing orders will be made in chambers. These orders will take one of three forms, of which type is determined by a Registrar in chambers:
Final hearing orders;
Extension of time orders; or
Summary dismissal orders.
In cases where the standard orders are inappropriate for the particular matter at hand, parties may contact the FCFAO’s Migration Team to seek to have the matter listed for directions before a Registrar or Judge. They may also seek to have the standard orders varied by consent.
Existing First Court Date listings for dates from 1 December 2021 onwards will be overridden by the new system of standard orders. Parties to affected matters will be contacted and advised as required.
The FCFAO Migration Team can be contacted with enquiries regarding the new procedures.
If you require assistance with your appeal matters before the FCFCOA, contact us on contact@samutamccomber.com.au or phone (07) 3394 8489. Samuta McComber Lawyers is now accepting clients who have lost their case at the Administrative Appeals Tribunal (AAT) and have prospects for success on appeal. The firm instructs very experienced counsel, and where clients have reasonable prospects for success, we offer to act on a conditional fee basis.