Who Else Wants to Get To Australia … As Quickly and Painlessly as Possible?

Take a look around this site

"Is Australian immigration right for you? Explore the wealth of information on this site, and discover how your situation might fit with a move to Australia."

Whether you seek permanent residency, an extended work stay, or dozens of other possibilities, we’ll carefully guide you in the most appropriate and efficient way to achieve your goal. Because we know the process so well, we can help you avoid the costly, time-consuming mistakes most people make in this complex endeavor.

Skilled Independent Visa Refusal: Federal Court Reasons

Matter Refused: Hu Anor v MIAC Anor FMCA 1710

This applicant sought judicial review of a decision of the Migration Review Tribunal (the Tribunal) affirming a decision of the Minister’s delegate that he was not entitled to the grant of a (Class DD) subclass 880 Skilled – Independent Overseas Student visa.

The applicant relied on a Certificate in “Food Processing (Retail Baking)” he had obtained while studying in Australia at the City College of Professional Development. This is not a matter our firm handled.

That education provider was not registered under the Education Services for Overseas Students Act 2000 at the time.

The delegate and the Tribunal both found that the applicant failed to meet cl.880.230(2) of Schedule 2 to the Migration Regulations 1994 (the Regulations), which is a ‘time of decision’ criterion requiring, amongst other things, that the qualification on which the applicant seeks to rely was obtained as a result of full time study in a registered course.

This requirement was introduced by Select Legislative Instrument 2006 no.159, which was registered on 26 June 2006.

The transitional provisions indicate in r.4(3) that the relevant amendment applies in relation to an application for a visa “made but not finally determined” before 1 July 2006. The applicant applied for the visa in October 2005.

The applicant argued that s.12(2) of the Legislative Instruments Act 2003 prevented the amendment being given effect by decision makers, notwithstanding the expressed intention of the amending regulation to apply the changed criteria to outstanding visa and review applications.

Held: Application was dismissed.

1. The transitional provision of the amending regulation reveals a clear intention that the change to the ‘time of decision’ criterion applies to all future decision making by the Minister or his delegate, as well as the Tribunal, when addressing any undecided visa application

2. Section 12(2) only applies if the instrument “would take effect before the date it is registered”. The amending regulation did not purport to take effect before the date of its registration. It did not remove or alter any rights as they stood at a past date. It is clear that it was only intended to operate in relation to future decisions on visas which had not been granted, and without any alteration to the past legal position of any visa applicant. The argument seeking to render ineffective the amendment which inserted cl.880.230(2) must fail

3. In the absence of any ambiguity in the transitional provision, there was no scope to consider the principles of statutory construction, which presume against interference with accrued rights

4. Obiter dictum: After application and before a decision is made, a visa applicant has no more than a right to compel the Minister to make a decision on whether he or she is satisfied as to the prescribed criteria which are relevantly in force at the time of the decision. The Migration Act 1958 intends the regulations themselves to indicate the criteria which must be satisfied at the time of decision of any undecided or future visa application. It was open to the Minister to make an amending regulation which made clear that an amended time of decision criterion is applicable to decisions on outstanding visa applications. The applicant never acquired a right to compel the Minister to apply the previous criteria. He therefore would have no accrued rights as at the date of amendment which were affected so as to disadvantage him.

<< Return to Article List