This often relates to people who are in Australia awaiting a decision on their permanent visa application. For permanent visa applicants generally they are only entitled to Medicare if they have work rights - or if they have an Australian spouse, parent or child. For those who are not eligible for Medicare, some can benefit from a “Reciprocal Health Care Agreement” (RHCA).
RHCA’s with the Republic of Ireland, Sweden, New Zealand, the United Kingdom, the Netherlands, Norway, Malta and Italy. Other details available, see http://www.medicareaustralia.gov.au/public/migrants/
visitors/index.shtml

Matter Refused: Prasad v MIAC [2007] FCA 1739

This was an appeal from a judgment of the Federal Magistrates Court dismissing an application for judicial review of a decision of the Migration Review Tribunal (the Tribunal) affirming a decision of the Minister’s delegate to refuse to grant the appellant an Other Family (Residence)(Class BU) subclass 835 visa. This is not a matter our firm handled.

The Tribunal found that the appellant and her husband usually resided in Australia at the time of visa application. The Tribunal was not satisfied that the appellant’s husband had not had contact with his mother, who lived in New Zealand, within a reasonable time before making the visa application. As such, it found that the appellant failed to meet r.1.15(1)(c)(ii) of the Migration Regulations 1994 (as in force prior to 1 November 2005).

The Federal Magistrates Court considered whether, on its true construction, r 1.15(1)(ii) had any application to the appellant, given the conceded inapplicability to her of r.1.15(1)(c)(i) as per MIMIA v Hildago [2005] FCAFC 192. The Federal Magistrates Court dismissed the application and found that the proper construction of r.1.15(1)(c)(ii) was that ‘it stands alone as a criterion to be satisfied even when, as in this case, sub-regulation (c)(i) does not apply’.

On appeal to the Federal Court, the appellant argued that r.1.15(1) set out one ‘related and integrated’ criterion and that subparagraph (c) identified a particular type of ‘overseas near relative’ and the quality of the association between that overseas near relative and the visa applicant. Thus, the reference to ‘that relative’ in r 1.15(1)(c)(ii) was said to be a reference to the relative described in r.1.15(1)(c)(i).

Held: Appeal was dismissed

1. The Tribunal did not commit jurisdictional error.
2. The role that the conjunctive word ‘and’ plays within r.1.15(1)(c) is to indicate that there are two items of information sought in respect of each ‘overseas near relative’, not that the two items are interdependent, i.e. not to indicate that item (ii) is cumulative upon item (i). In each item, as a matter of construction, the expression ‘that relative’ refers to the term ‘overseas near relative’ that appears in the conditional clause that opens paragraph (c). If it transpires that the visa applicant or that person’s spouse happens usually to reside in Australia all that means is that it is unnecessary to endanger Ministerial satisfaction in respect of one of the items specified in r.1.15(1)(c), not that this paragraph has no application whatsoever.
3. A more natural reading of r.1.15(1)(c) is that it is directed to engendering Ministerial satisfaction with respect to two separate subjects in relation to each and any ‘overseas near relative’, whether that relative usually resides in a third country, a ‘geographic’ subject and the contact, if any, that the visa applicant or his or her spouse had with that relative within a reasonable time prior to the making of the visa application, a ‘quality of contact’ subject.

Federal Court of Australia, Logan J, QUD 174 of 2007, 14 November 2007

Matter Refused: Zhang v MIAC & Anor [2007] FMCA 1855

The visa had been cancelled pursuant to s.116 of the Migration Act 1958 (the Act) on the basis that the applicant had failed to maintain satisfactory attendance for term 8 of her course, in breach of condition 8202(3)(a) in Schedule 8 to the Migration Regulations 1994. This is not a matter our firm handled.

The Tribunal wrote to the applicant pursuant to ss.359 and 359A of the Act inviting her to comment on her apparent failure to meet the attendance requirement, and to provide any evidence which would indicate that her non-compliance was due to exceptional circumstances beyond her control.

After the Tribunal hearing the Tribunal made inquiries with the education provider which advised the Tribunal that in term 7 the applicant’s academic performance had been unsatisfactory and her attendance had been less than 80 per cent, even taking into account absences explained by medical certificates. The letter also advised that for term 8 her academic performance had been satisfactory but again, she had failed to meet the 80 per cent attendance requirement. The Tribunal sent a further s.359A letter inviting her to comment on the information about term 7.

It affirmed the delegate’s decision on the basis that she had not achieved an academic result certified by her education provider to be at least satisfactory for term 7, in breach of condition 8202, specifically 8202(3)(b), and that the non-compliance was not due to exceptional circumstances beyond her control.

The applicant alleged, among other things, that the Tribunal was not permitted to affirm the delegate’s decision on grounds which were neither the subject of the Department’s notice of intention to consider cancellation nor the delegate’s decision.

Held: Application was allowed. Tribunal decision was quashed and remitted for reconsideration.

1. The Tribunal’s decision was affected by jurisdictional error.
2. The Tribunal is not confined to whatever may have been the issues that the delegate considered. However the Tribunal did not give the applicant a real and meaningful invitation to attend a hearing to give evidence and present arguments in relation to the issues which it found to be decisive. As the determinative issue, the failure to have an academic result certified to be satisfactory, had not been one of the issues that the delegate had considered dispositive, s.360 required the Tribunal to alert the applicant to the significance of this criterion to the determination of the review application. As the Tribunal did not do so, it breached its obligations under s.360.
3. Although the Tribunal’s decision might be characterised as one which was based on the applicant’s failure to comply with visa condition 8202, to characterise the matter in that way would be to fail to identify sufficiently the issues which were before the Tribunal. The real nature of the questions which the Tribunal asked itself included an identification of the academic performance criterion as being decisive.
4. The letter inviting the applicant to comment on the information that the applicant had not achieved an academic result certified to be at least satisfactory did not satisfy s.360 of the Act. It was sent after the Tribunal hearing so that the Tribunal could meet its requirements under s.359A and it did not invite the applicant to attend a further hearing to give evidence and present arguments.
5. Because the Tribunal had not flagged to the applicant that her academic result was an issue in play, she could not have turned her mind to the presentation of evidence or arguments which would address the subsidiary question of whether her failure to obtain certification of a satisfactory academic result was the result of exceptional circumstances beyond her control. Consequently she was denied the opportunity guaranteed by s.360 to give evidence and present arguments on that issue. The Tribunal erred as a result.

Federal Magistrates Court of Australia, Cameron FM, SYG 1677 of 2007, 9 November 2007

Matter Refused: Lee v MIAC & Anor [2007] FMCA 1802

This applicant sought judicial review of a decision of the Migration Review Tribunal (the Tribunal) affirming a decision of the Minister’s delegate to refuse his application for a (Class UC) Temporary Business (Long Stay) visa (Subclass 457).

The visa was refused on the finding that the applicant’s sponsor, KT Entertainment Ltd (KT), was not approved as a ‘standard business sponsor’ pursuant to cl.457.223(4) of Schedule 2 to the Migration Regulations 1994 (the Regulations). KT applied for review and the Tribunal affirmed the delegate’s decision finding that KT did not meet the criteria. This is not a matter our firm handled.

The Tribunal sent the applicant a notice under s.359A of the Migration Act 1958 (the Act) inviting him to comment on KT’s failure to obtain approval. The applicant replied seeking a two week time extension to find a new sponsor, in which he also noted two potential sponsors. The Tribunal rejected the request for extension.
The applicant contended that the Tribunal’s discretion miscarried by refusing the applicant an extension of time to apply for a second sponsorship, and in addition, by not inviting the applicant to provide more details in relation to his proposed sponsors.

Further, it was argued that the Tribunal should have given reasons for the refusal, and it was contended that the Tribunal should not have proceeded with a hearing on the basis that it was unable to make a favourable decision, in circumstances where the applicant had sought to put further information before it.

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Matter Refused: Alimi v MIAC & Anor [2007] FMCA 1520

This applicant sought judicial review of a decision of the Migration Review Tribunal (the Tribunal) affirming a decision of the Minister’s delegate that the applicant’s brother was not entitled to the grant of a Partner (Provisional) (Class UF) subclass 309 spouse visa on the basis that he was a member of the family unit of the applicant’s spouse (“the primary visa applicant”).
The applicant’s father was killed and his mother abandoned him and his brother shortly after the birth of his brother. His brother started to live with him and his wife at the age of 13 when the applicant got married. After the applicant left Afghanistan in 2001, his brother had been living with his wife and his son since the son was born.

The applicant sent money to his wife for the support of her, the son and his brother. The Tribunal affirmed the decision on the grounds that applicant’s brother was a dependent of the applicant rather than his wife and therefore failed to satisfy cl.309.311 of Schedule 2 to the Migration Regulations 1994 (the Regulations) which required a secondary visa applicant to be a member of the family unit of the primary visa applicant. This is not a matter our firm handled.

The issue before the court was whether it was sufficient for the purpose of cl.309.211 if the applicant’s brother was dependent on the applicant rather than his wife.

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Matter Refused: Hu Anor v MIAC Anor [2007] 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.

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This new Determination that commenced on 27 November 2007, makes Subdivision AF of Division 3 of Part 2 of the Migration Act 1958 (the Act) part of the designated migration law for the purposes of subsection 495A(1) of the Act.

The migration legislative instrument F2007L04440 operates to allow the Minister of Immigration to arrange for the use of a computer program to grant a Bridging Visa to applicants who have made valid applications for certain substantive visas.

Matter Refused: Return Residence Visa

This decision considered whether lawfully present in Australia; compelling reasons for absence.

The applicant applied for a Return (Residence) (Class BB) visa which was refused by a delegate of the Minister for Immigration and Citizenship on the basis that he did not satisfy cl.155.212(2) of Schedule 2 to the Migration Regulations 1994 (the Regulations). Clause 155.212(2) required, inter alia, that the applicant be lawfully present in Australia for a period of, or periods that total, not less than two years in the period of five years immediately before the visa application. This is not a matter our firm handled.

The delegate found that the visa applicant applied for his visa on 25 July 2006, despite last departing Australia in 1995 and not returning after that date. The review applicant claimed that compelling circumstances had prevented the visa applicant from returning to Australia earlier.

These compelling circumstances were that the visa applicant’s mother had died in 2000, that he had been required to provide care to his father who suffered health problems, that he was a ‘critical resource’ in his employer’s offshore project from which he could not depart and that he had always intended to return to Australia.

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Refused Matter: Student Visa Non Compliance

This decision on appeal considered whether complied substantially with visa conditions; academic performance.

The applicant applied onshore for a further Student (Temporary) (Class TU) Subclass 572 visa to undertake studies in Australia. A delegate of the Minister for Immigration and Citizenship refused to grant the visa on the basis that the applicant did not meet cl.572.235 of the Migration Regulations 1994 (the Regulations), which required the applicant to comply substantially with the conditions that applied to his last held visa. This is not a matter our firm handled.

Item 8203(3)(b) of Schedule 8 to the Regulations, one of the conditions that applied to the applicant’s last held visa, required that the applicant achieve an academic result certified by the education provider to be at least satisfactory.

The applicant’s education provider had determined that the applicant’s academic results were not at least satisfactory in the semester running from 27 February 2006 to 9 June 2006.

The applicant acknowledged that he had technically breached condition 8202(3)(b) but argued that the breach was due to exceptional circumstances beyond his control, namely that a differently constituted review body considered cancelling his student visa due to the same breach and had already identified exceptional circumstances. He also argued that his current academic performance had improved significantly and wished to continue his studies in Australia.

20 August 2007, Sydney

Held: Decision under review affirmed.
On review it was found that the applicant had not complied with the requirements of condition 8202(3)(b) of his last held student visa because his education provider had not certified his academic results as being at least satisfactory during the relevant semester.

On review consideration of earlier case authority that the breach of that condition was due to exceptional circumstances beyond his control was made, but it was concluded that the law relevant to this case did not allow the review of this matter to have regard to those exceptional circumstances. Accordingly, it was found that the applicant had not complied substantially with a condition of his last held visa and therefore failed to satisfy the criterion in cl.572.235 for the grant of a Subclass 572 visa.

Matter Refused: Spouse Visa

This decision considered public interest criterion; significant cost to the Australian community in the areas of health care and community services; waiver; and undue cost to the Australian community.

The applicant (including child) applied for the Partner (Temporary) (Class UK) visa on the basis of the primary visa applicant’s spousal relationship with her Australian citizen husband.

The immigration delegate refused to grant the visas because the child applicant did not satisfy public interest criterion (PIC) 4007 (pursuant to cl.820.224 of Schedule 2 to the Migration Regulations 1994) because her health condition (Down syndrome) would result in a significant cost to the Australian community in the areas of health care and community services. This is not a matter our firm handled.

A Medical Officer of the Commonwealth (MOC) assessed the child applicant’s condition as a significant cost estimated at $539 000 over her lifetime although the condition would be unlikely to prejudice the access to health care or community services of any Australian citizen or permanent resident. The applicants were New Zealand citizens and had lived in Australia since 2002.

The primary visa applicant and her husband were employed, were assisted with the care of the child applicant through a network of friends and supporters as well as education and health services but had no family in either Australia or New Zealand.

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