Migration Newsletter 749

 October  2019                                                                                 Issue   749

More on Section 313

Dear Peter

Thanks for including links to the two Queensland cases about Section 313 I of the Migration Act in your last newsletter.

While the outcome was clearly correct since no proper statement of services (otherwise known as an invoice) was ever provided, I think the Tribunal in the first instance case was wrong when it said that the failure to give a statement within 28  days of the final decision would “alone” be sufficient to activate the client’s entitlement to recover the money paid. The appeal case did not deal with that point.

Section 313 gives the client an entitlement to recover payments made where all three of the circumstances listed apply:

(a)  made the payment to a registered migration agent for giving immigration assistance; and

(b)  did not receive a statement of services before making the payment; and

(c)  does not receive a statement of services within the period worked out in accordance with the regulations.

If any one of those three circumstances does not apply, the client is not entitled to recover the payment.

 In other words, so long as a statement of services (invoice) is issued before payment is made (which I interpret as being before money is transferred from the clients account to the operating account), there is no need to provide a final statement of services within 28 days of completion.

Michael Jones


Michael Jones
Principal Solicitor

Accredited Specialist Australian Immigration Lawyer

Registered Migration Agent 9255530
—–
Parish Patience Immigration Lawyers

From Australia and elsewhere

Home Affairs problems

https://www.abc.net.au/news/2019-10-14/no-airport-border-crisis-only-home-affairs-management-failure/11598894

A  visitor

https://www.abc.net.au/news/2019-10-17/crown-casinos-hosted-former-arms-dealer-despite-un-sanctions/11609302

Passports for purchase

https://edition.cnn.com/travel/article/multiple-passports-citizenship/index.html

PR issues

https://www.sbs.com.au/language/english/audio/we-ve-never-had-such-a-low-pathway-to-permanency-in-australia-michelle-rowland?fbclid=IwAR3CWkJ0GBulN4j1f3jUXNC2l4I821m7DvaEJZmmV_zRXJmtuiz1Y2Pz03Y

Back to India

https://www.reuters.com/article/us-usa-immigration-mexico-india/mexico-flies-300-indian-migrants-to-new-delhi-in-unprecedented-mass-deportation-idUSKBN1WW2KV

Parent

Who is a parent-it is not as simple as it seems-an extract from the Procedures Advice Manual:

3.2 Meaning of ‘Parent’

There is no definition of the term ‘parent’ in the Act. Up until 2010, citizenship by descent was limited under the Act to biological children. Following the decision of the Full Federal Court (FFC) in H v Minister for Immigration and Citizenship[2010] FCAFC 119 (H case) on 15 September 2010, citizenship by descent can also be accessed by non-biological children in circumstances where a parent-child relationship existed at the time of the child’s birth. Therefore, the term ‘parent’ where used elsewhere in the Act including citizenship by birth, also includes non-biological parentage.

Consistent with the H case, the determination of whether a person is a parent is a question of fact and should be made on a case-by-case basis, in consideration of all the relevant information in the circumstances, including biological, legal, and social factors

A parent-child relationship that developed after the birth of a child, such as adoption, would not suffice for the purposes of citizenship by descent or birth in Australia. For further information on citizenship by adoption see Australian Citizenship Instruction 22 – Australian citizenship by adoption.

The status of a person as a parent under a foreign law may be taken into account, but is not a determinative factor as to whether that person is a parent for the purposes of the Act.

Parent not limited to biological parent

‘Parent’ in relationship to citizenship by descent is not limited to a biological parent. For further information on how to assess a parent-child relationship please refer to Citizenship Instruction 23 – Determining Parent- Child Relationship for the Purposes of the Citizenship Act.

If there is no biological link, substantive and verifiable evidence to support a non-biological parental link between the applicant and the claimed Australian citizen parent at the time of the applicant’s birth must be provided.

It is unlikely that any one piece of evidence would be sufficient to prove the required parent-child relationship. The decision-maker is required to weigh up any relevant factors, including social and legal, to reach a finding of fact as to whether the claimed parent was or was not a parent of the applicant at the relevant time.

Evidence that a claimed parent-child relationship existed at the time of a child’s birth may include, but is not limited to:

  • evidence that the claimed parents were in a genuine and continuing relationship prior to and at the time of the child’s birth;
  • evidence that the claimed Australian citizen or permanent resident parent was involved in providing care for the unborn child and/or the mother during the pregnancy, for example, emotional, domestic or financial support, making arrangements for the birth, antenatal and postnatal care;
  • evidence that the child was acknowledged socially at or before birth as the claimed Australian citizen or permanent resident parent’s child; and
  • when a child is born through a surrogacy arrangement – a formal surrogacy agreement entered into before the child was conceived and, if available, lawful transfer of parentage prior to or after the birth.

Evidence that the claimed Australian citizen parent treated the child as their own from some point in time after the child’s birth is not evidence that they were the child’s parent at time of birth.

From courts and tribunals.

A win for the Minister

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA//2019/1686.html

Level of risk

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCAFC//2019/173.html

Relocation

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCCA//2019/2295.html

Anything but migration

A fire

https://edition.cnn.com/travel/article/yanar-dag-azerbaijan-land-of-fire/index.html

Do they still exist?

https://www.abc.net.au/news/2019-10-16/thylacine-sightings-in-tasmania-revealed-in-rti/11602970

88 billion

https://www.abc.net.au/news/2019-10-17/green-walls-in-china-and-africa-keeping-deserts-at-bay/11602796

Lewis & Bollard

Solicitors and migration agents

Level 9, 48 Hunter Street Sydney 2000

PO Box A96, Sydney South NSW 1235

Telephone: +61 (02) 92830888 Fax: +61 (02) 92836611

E-mail     peter@lewisbollard.com.au

Website http://lewisbollard.com.au/

Information (or the lack of it) contained in past, the present or future editions of the Migration Newsletter (the newsletter) should not be relied on by anyone as immigration assistance or legal advice. Peter Bollard and Gareth Lewis expressly disclaim any liability, arising at law, in equity or otherwise, for any information published or not published in   past, the present or future editions of the newsletter. People seeking immigration assistance should seek advice from a registered migration agent and those seeking legal advice should consult with a lawyer. The copyright in the newsletter belongs to Peter Bollard and no part of the newsletter is to be reproduced by any means without the written consent of Peter Bollard.

MARN 9250775

Migration Newsletter 748

 October    2019                                                                                 Issue 748

A long wait

Hi Peter

A recent Question on Notice by Senator Keneally provides statistics on the partner visa programme from 30 June 2014 – 30 June 2019:

https://www.aph.gov.au/api/qon/downloadattachment?attachmentId=0fb9a239-ac92-479c-a736-206e1f4def6e

Highlights:

Backlog of 801 visa cases up from 63,000 to 95,000.

Total backlog cases up from 161,000 to 214,000.

Total number of applicants in backlog up from 190,000 to 245,000.

90% of 801 cases finalised up from 337 to 768 days.

309 annual lodgements down from 30,000 to 20,000, while 820 lodgements up from 31,000 to 38,000.

95,000 grants of 309/100/820/801 visas in FY 2018/19.

Regards

Simon Jeans

From Australia and elsewhere

A special ritual on a full-moon night in a graveyard. 

https://www.sbs.com.au/language/english/audio/black-magic-and-faith-healer-advertisements-on-the-rise-in-australia-s-ethnic-media?fbclid=IwAR36LaZEvqFTxFLvc_i62bsAuNo9xe2yLsMy7r73eJjqGGIJ4-pqs2i8wVs

A citizenship tip

https://www.sbs.com.au/language/english/audio/know-how-a-random-tip-helped-this-perth-woman-speed-up-her-australian-citizenship-process?fbclid=IwAR3LVwDjYljivpn8P8Fm5Kf7IEa-33N8uiY6INy3PXJluZ8lEK_wi61-HVY

An underclass

https://www.sbs.com.au/language/english/underclass-of-permanently-temporary-migrants-concerns-about-australia-s-new-regional-visas?fbclid=IwAR0m75WsQbSEBuNLzKSaQ1VuK9cl2-5RcOoUQ9qq9Gz9g6vuDSygYR4rge4

Struggling

https://www.abc.net.au/news/2019-10-15/food-delivery-drivers-struggle-to-make-ends-meet/11598000

From courts and tribunals.

The Australian study requirement

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2019/3898.html

Business shut down

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2019/3989.html

Trusts

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2019/3776.html

Citizenship issues

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2019/4090.html

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2019/4098.html

DNA testing

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2019/3991.html

Suing clients

Any migration agent considering suing a client for unpaid fees should read the two decisions below:

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QCAT/2018/445.html

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QCATA/2019/94.html

Medical costings

Useful information from the Procedures Advice Manual:

Responding to enquiries about MOC Costing breakdowns

Where a visa applicant receives a DNM outcome for the health requirement due to significant costs, the applicant will receive a DNM letter which states the services for which the MOC calculated as expected to incur significant costs. Upon receipt of this letter, visa applicants and/or their Migration Agents, may contact the Department requesting a breakdown of the costs of the services identified.

How to respond to requests for MOC costing breakdowns

The breakdown of the MOC costings, contained within the ‘Significant Cost’ section of the DNM outcome, can be provided directly to visa applicants and Migration Agents if requested. There is no need to submit a Freedom of Information (FOI) request. Documents can be released outside of the FOI Act, such as administratively or under the Privacy Act.

If visa processing officers receive these requests, visa processing officers are to respond directly. These requests do not need to be sent to Health. Visa processing officers can access this information directly from the HAP – Health Assessments, located within the DNM assessment. Please note that no further information is available other than what is included in HAP- Health Assessments, neither Health Policy nor the MMSP are able to provide further details. Visa processing officers are to use the following template in their response, along with a screen shot of the cost breakdown (please ensure that the MOC name is not included in the screenshot):

This costing is calculated by the Medical Officer of the Commonwealth (MOC) applying their clinical judgment regarding the applicant’s specific condition, guided by the information contained within the Department of Home Affairs Notes for Guidance. A visa applicant (or a non-migrating family member) cannot be found to meet the health requirement for the grant of certain visas if they have a disease or condition that is likely to result in a “significant cost” to the Australian community in the areas of health care or community services. Under policy, the threshold at which costs are currently considered to be significant is AUD 49 000.

When assessing the likely costs involved with a disease and/or condition that an applicant has, a MOC applies the hypothetical person test. MOCs take into account the cost of health care or community services for which a hypothetical person with the same form and level of the applicant’s condition would be eligible. This includes the expected duration of services likely to be required by the applicant

Please note that no further breakdown or information regarding this costing can be provided.

The views of a reader

An edited extract from an email received from a reader.

In the Australia constitution Section 99 requires that the federal government deals with states equally in matters of trade, commerce, or revenue.

 This can be read here

https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Constitution.aspx

There could be breaches of this depending on how the scope is defined with regards to immigration. For example in a media release on 4th March

2018 the minister highlighted a special visa program the will be implemented for South Australia before other states.

The release specifically refers to the economy, and business and investment. For these reasons I believe it falls within the scope of Section 99 as it relates to commerce, and likely to trade and revenue as well.

The release is here:

https://minister.homeaffairs.gov.au/peterdutton/Pages/supporting-innovation-in-south-australia.aspx

Section 99 refers not only to states, but to a “part thereof”, so legislation that provides benefits to commerce for specific regions only would potentially be unconstitutional. How would RSMS fit under this?

It’s definitely related to commerce. What about quotas for Subclass 188? They’re business visas and therefore related to commerce. Different states have different quotas.

Anything but migration

She brought a snack

https://www.abc.net.au/news/2019-10-15/woman-deported-for-smuggling-uncooked-pork/11603336

All-female

https://www.aljazeera.com/ajimpact/nasa-moves-woman-spacewalk-fix-power-unit-191015184943081.html

A bridge

https://edition.cnn.com/style/article/leonardo-da-vinci-bridge-scn/index.html

Lewis & Bollard

Solicitors and migration agents

Level 9, 48 Hunter Street Sydney 2000

PO Box A96, Sydney South NSW 1235

Telephone: +61 (02) 92830888 Fax: +61 (02) 92836611

E-mail     peter@lewisbollard.com.au

Website http://lewisbollard.com.au/

Information (or the lack of it) contained in past, the present or future editions of the Migration Newsletter (the newsletter) should not be relied on by anyone as immigration assistance or legal advice. Peter Bollard and Gareth Lewis expressly disclaim any liability, arising at law, in equity or otherwise, for any information published or not published in   past, the present or future editions of the newsletter. People seeking immigration assistance should seek advice from a registered migration agent and those seeking legal advice should consult with a lawyer. The copyright in the newsletter belongs to Peter Bollard and no part of the newsletter is to be reproduced by any means without the written consent of Peter Bollard.

MARN 9250775

Migration Newsletter 747

   October 2019                                                                             Issue   747

Airline refugees

An extract from a recent article in the Sydney Morning Herald

Australia is on track to post a new annual record for asylum seekers who arrive by air after official figures confirmed more than 95,000 arrivals over the past five years amid fears of corruption and exploitation.

About 80 people every day since the start of July have claimed protection after landing at an Australian airport, highlighting a huge change in people smuggling operations since the government’s crackdown on boat arrivals.

The trend appears likely to push the annual arrivals to a new high while adding to claims of “slavery” by smugglers who recruit workers who arrive as tourists, claim asylum and stay in Australia while their cases go through the courts.

Immigration Minister David Coleman argued the rate of arrivals since the beginning of July showed the influx was likely to be down over the full year when seasonal factors were taken into account.

From Australia and elsewhere

An OMARA decision

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2019/3941.html

NZ changes

https://www.sbs.com.au/language/english/audio/work-visa-changes-new-zealand-announces-new-visa-process-for-foreign-skilled-workers?fbclid=IwAR0iwxm9SiB0PFnBUyzlZ836gYbHLjyIGJg4HOfyqzsnnIARTRs-c9iANRU

Being sued

https://www.abc.net.au/news/2019-10-11/murdoch-university-sues-four-corners-whistleblower/11591520

The health criteria

https://www.abc.net.au/news/2019-10-11/paralysed-child-facing-deportation-over-cost-of-medical-care/11591222

Hypothetical

Many clients who receive negative health reports feel that their particular circumstances were not taken into account.

Below is an extract from the Procedures Advice Manual setting out the requirement that the Medical Officer of the Commonwealth prepare a report based on a hypothetical person.

Assessing the lawfulness of a MOC opinion

Visa processing officers need to assess the lawfulness of a MOC opinion, particularly if:

  • It has been found that the applicant does not meet the health requirement and may therefore have their visa refused, or
  • A health waiver is available and the delegate decides not to exercise the health waiver

Visa processing officers must confirm that the MOC has:

  • listed the reports that they have considered in forming the opinion
  • stated the health condition that the applicant has
  • described the severity of the condition
  • described the health care or community services likely to be required by a hypothetical person  who has the same condition as the applicant (including the same severity), and
  • specified the period of stay the applicant has been assessed against.

And below is a link to a court decision that demonstrate the difficulties in challenging an MOC decision.

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCCA/2018/3490.html

Paying filing fees

Hi Peter

Payment of Vvsa fees

I am writing to advise my approach to visa submissions and payment by the many means available.

Since a visa application does not meet the Schedule 1 requirement for a valid application until the payment is received by the Department, I never use any other method of payment other than a credit card.
Our company card or a client’s card are used in the submission.

I prepare my clients in advance if the payment is with the company card to deposit the payment to the account before any deadline arrives so we can submit.

My explanation to my clients is, the small percentage of fees paid to pay the visa application fee by credit card is your insurance policy that the application is submitted and payment has been received.


This eliminates any possibility of delays and issues that might arise from the other payment methods in validating the application

My clients all accept this without question.

I hope this will be of assistance to other agents.

Regards

Paul O’Connor
RMA 0854511

From courts and tribunals.

A passport problem

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA//2019/4082.html

 A decision from The Legal Profession Complaints Committee

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/wa/WASAT/2019/67.html

Eagle Boys

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCCA/2019/2604.html

A correction

Hi Peter

I noticed an error in my comments from Migration Newsletter 745 which I think caused confusion about lodging a valid visitor visa application. 

On page 7 of the Migration Newsletter 745 the second last paragraph says:

“Once the BVD is granted the client is free to lodge an online visitor visa application.”

The correct statement is: the client is free to lodge an onshore paper-based visitor visa application. This was correctly stated in the original post in Migration Newsletter 743. 

There hasn’t been any issues with obtaining the BVD and BVCs in my experience. There are risks as always with such strategies which I’ve canvassed in Migration Newsletter 744. 

Kind regards,

Rowena

Rowena Prasad | Registered Migration Agent | MARN: 1279309

BComm Jnl (UC), GradCertAustImmLaw (VU)


Anything but migration

Luxury cars

https://edition.cnn.com/style/article/north-korea-luxury-vehicles-intl-hnk/index.html

Saudi Arabia

https://pbase.com/longbachnguyen/saudi

A Tasmanian export in the news

https://www.abc.net.au/news/2019-10-13/tasmania-poppy-farmers-in-crosshairs-of-us-opioid-crisis/11588766

Lewis & Bollard

Solicitors and migration agents

Level 9, 48 Hunter Street Sydney 2000

PO Box A96, Sydney South NSW 1235

Telephone: +61 (02) 92830888 Fax: +61 (02) 92836611

E-mail     peter@lewisbollard.com.au

Website http://lewisbollard.com.au/

Information (or the lack of it) contained in past, the present or future editions of the Migration Newsletter (the newsletter) should not be relied on by anyone as immigration assistance or legal advice. Peter Bollard and Gareth Lewis expressly disclaim any liability, arising at law, in equity or otherwise, for any information published or not published in   past, the present or future editions of the newsletter. People seeking immigration assistance should seek advice from a registered migration agent and those seeking legal advice should consult with a lawyer. The copyright in the newsletter belongs to Peter Bollard and no part of the newsletter is to be reproduced by any means without the written consent of Peter Bollard.

MARN 9250775

Migration Newsletter 746

October 2019                                                                            Issue 746

COE crisis

An article from SBS on how changes to student visa requirements are having serious consequences for potential students from India:

Within a week of Australia downgrading India’s student visa assessment level, SBS Punjabi has become aware of Australian education providers cancelling or withdrawing Confirmation of Enrolments (CoEs) and offer letters to Indian students, specifically from the northern Indian states of Punjab, Haryana and Uttar Pradesh. Listen to this conversation for more information.

And later:

SBS Punjabi also has access to the information circulars distributed by UTS and UTS Insearch**, which clearly mentions that ‘until further notice, UTS and UTS Insearch will not be issuing any offers or joint eCoEs for students from Haryana, Uttar Pradesh and Punjab.

The statement that is addressed to UTS’s education partners reads:

We will be withdrawing all packaged offers for future intakes for students from Haryana, Uttar Pradesh and Punjab.

https://www.sbs.com.au/language/english/audio/cancelling-all-coes-and-offers-australian-institutes-denying-admission-to-indian-students?fbclid=IwAR23NboXRJKC6kIIwApF9h9W7KXpOpj_dRqIvjJrQBRdzYpJDe3qhGWgjdQ

Useful information

Dear Peter,

We thought that the readers of your newsletter may appreciate policy clarification received recently regarding 186/187 nominations. 

A 187 nomination was approved but the visa application that the applicants lodged against this nomination was refused.

 We sought policy clarification whether it was possible to re-lodge a new visa application against an already approved nomination and we received confirmation that we can, provided that a) it is only for the nominee as identified in the nomination; and that the b) visa application is lodged within the 6 months from the nomination approval date. 

As the nomination must identity a person which is the visa applicant, the approved nomination cannot be used by other visa applicants. 

 If an associated visa application lodged on the approved nomination was refused, only the same visa applicant may re-apply for the visa based on the already approved nomination as long as it is within the time limit of 6 months of the nomination being approved.  

5.19 Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa  

(1)  A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia

(2)  The application must:

(a)  be made in accordance with approved form 1395 (Internet); and

(b)  identify the position; and 

(c)  identify a person (the identified person) in relation to the position; and 

(d)  identify an occupation in relation to the position; and 

(e)  identify the subclass and stream to which the nomination relates, which must be one of the following:

(i)  a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;

(ii)  a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;

(iii)  a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;

(iv)  Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;

(v)  a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and

186.223 

 (1)  The position to which the application relates is the position:

(a)  nominated in an application for approval that:

(i)  identifies the applicant in relation to the position; and

(ii)  is made in relation to a visa in a Temporary Residence Transition stream; and

(c)  in relation to which the declaration mentioned in paragraph 1114B (3) (d) of Schedule 1 was made in the application for the grant of the visa.

(2)  The Minister has approved the nomination

Have a fantastic weekend!

Margie Dizon
Director, Registered Migration Agent and Psychologist*
MARN 0639396, PSY0000969092

and 

Cecilia Dela Vega

Registered Migration Agent MARN 0964227

From Australia and elsewhere

More on backpackers

https://www.abc.net.au/news/2019-09-29/backpackers-train-for-farm-jobs-amid-working-holiday-visa-surge/11557540

https://www.sbs.com.au/language/english/audio/this-visa-has-seen-20-more-grants-in-a-single-year?fbclid=IwAR21MwJQuZDudGlwJjixkbtKbLRV_1btWdt8SxuhBLlKRu0ONHEuKdC1HZA

A novel claim

https://www.sbs.com.au/language/english/dj-who-claimed-he-needed-protection-from-members-of-a-wedding-party-loses-appeal-to-stay-in-australia?fbclid=IwAR2Belk5dFY6f5d6A8TNwFu6NeFm4CaOVAOCUUrx7AM5AgPWp7wsriqpYUA

Second class

https://www.themonthly.com.au/today/elle-hardy/2019/30/2019/1569821379/second-class-citizens?utm_medium=email&utm_campaign=The%20Monthly%20Today%20-%20Monday%2030%20September%202019&utm_content=The%20Monthly%20Today%20-%20Monday%2030%20September%202019+CID_f6378b177d921afb40065cfbf8c2caf9&utm_source=EDM&utm_term=Second-class%20citizens

Thank you Susan Murphy

$100K for sponsorship alleged- a story from earlier this year

https://www.sbs.com.au/language/english/visa-seekers-paid-100-000-for-sponsorship-from-fake-businesses

Trends

Hi Peter – hope you’re well!

I’ve been doing some research into Net Overseas Migration trends and seeing some interesting trends, and I thought that this might be interesting for your readers.

I looked at trends by country of citizenship.

It seems to me as if the latest financial year figures (2018-19) were largely driven by fewer Australians travelling.

 This resulted in a large net increase in Australian citizens present in Australia, which is quite unusual. 

Net migration by people from the UK and NZ has slowed a lot compared to 10 years ago, and it looks like many US citizens have been returning home since 2015.

I put these insights together in an article, and there is an interactive graph where you can look at the trend for each country:

All the best!

Mark Webster

The debate continues

Hi Peter,

I hope this email finds you well.

Thank you for Migration Newsletter 745.

 I believe you have received more emails from attentive readers but just in case you haven’t, I would like to bring to your attention, in my opinion, some issues in From unlawful to a Subclass 482 visa-Part 3

Once the BVD is granted the client is free to lodge an online visitor visa application. – This appears to be inconsistent with LIN 19/199 https://www.legislation.gov.au/Details/F2019C00698 – an applicant in Australia needs to hold a substantive visa to be able to use a Form 1419 Internet.

 So it is not clear to me how a BVD holder can lodge a valid online visitor visa application while in Australia.

After lodgement a client will get a BVC by operation of law, that will become active once the BVD expires. – I agree a client is very likely get a BVC but it appears to be at discretion of the Minister under Regulation 2.21B and the Minister is under no obligation to grant a BVC unlike e.g. a bridging visa granted under Regulation 2.21A.

 Furthermore, a BVC should come in effect immediately (030.511(1)) and a BVD will cease upon a BVC grant under Section 82(3).

A BVC is also more beneficial than a BVD under Regulation 2.21 so I don’t see how a BVD could be re-activated.

Kind regards,

Ales Welter

An error

Dear Peter,

Thought of sharing …writs issued in this matter as the Authority fell into error for misconstruing or misapplying the term ‘exceptional circumstances’ in Section 473DD of the Migration Act.

https://www.comcourts.gov.au/file/Federal/P/NSD645/2019/3855761/event/30035035/document/1475629

Kind regards,

Sudarshan Tambimuttu

Solicitor| Hodges Legal

From courts and tribunals.

A  contentious date of birth

https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2019/1415.html

Patisserie

https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2019/1556.html

A partner visa

Hi Peter,

Perhaps the following may be of interest to your readers.

On Good Friday this year I lodged a partner visa application via internet. I paid the VAC by BPAY the same day.

I then watched to see when the department might match that payment with the application and issue a BVA for the client.

Unfortunately because of the long weekend (including Easter Monday) the department did not match the payment until the Tuesday.

On Easter Sunday the applicant let Australia using her multiple entry Visitor visa – she left because she feared becoming illegal as her Visitor visa 3 months was to expire on the Monday.

Immigration then sent me an acknowledgement of an 820/801 application, the day after the client had left Australia.

There was no bridging visa as they had determined she was outside Australia at the time of application.

I applied for a BVA using a paper form and, after 3 months of following up on this, received a phone call 3 weeks ago. Immigration are now investigating saying that they cannot issue a BVA because she was outside Australia at the time of application AND they will most likely send the application back to us as invalid.

They advised me to prepare the client to have to pay the fee again (it has also gone up since).

I still however have not received any decision from immigration regarding this – meanwhile the client is in Australia on her last 3 month stay of her Visitor visa and we cannot get immigration respond about this.

Kind regards,

Rhsy Cochrane

Registered Migration Agent 1568361

Anything but migration

3 years

https://www.abc.net.au/news/rural/2019-09-29/how-hail-can-wipe-out-avocado-income-for-three-years/11550462?WT.ac=statenews_nsw

Moral injury

https://www.abc.net.au/news/2019-09-29/unmanned-combat-drone-pilots-moral-injury-warfare-dissonance/11554058

Vodka

https://www.aljazeera.com/news/2019/10/russians-drink-live-longer-report-191001174704055.html

Halloween pumpkins

https://www.abc.net.au/news/rural/2019-10-06/halloween-pumpkins-carving-out-niche-market-for-kimberley/11572406

Lewis & Bollard

Solicitors and migration agents

Level 9, 48 Hunter Street Sydney 2000

PO Box A96, Sydney South NSW 1235

Telephone: +61 (02) 92830888 Fax: +61 (02) 92836611

E-mail     peter@lewisbollard.com.au

Website http://lewisbollard.com.au/

Information (or the lack of it) contained in past, the present or future editions of the Migration Newsletter (the newsletter) should not be relied on by anyone as immigration assistance or legal advice. Peter Bollard and Gareth Lewis expressly disclaim any liability, arising at law, in equity or otherwise, for any information published or not published in   past, the present or future editions of the newsletter. People seeking immigration assistance should seek advice from a registered migration agent and those seeking legal advice should consult with a lawyer. The copyright in the newsletter belongs to Peter Bollard and no part of the newsletter is to be reproduced by any means without the written consent of Peter Bollard. MARN 9250775