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Australian Immigration Law Update - No. 156 - EDITED BY: ADRIAN BITEL & MICHAEL JONES

In this issue

Parish Patience Bitel Welcomes YOU!

Parish Patience Bitel Immigration Pty Ltd trading as Parish Patience Immigration Lawyers,  known for over 100 years in Australia’s Legal Service and Immigration Assistance have now moved to our new home, and we welcome you to our new location at Level 3, 83 York St Sydney NSW 2000.

From our old address, we are now at our new office in York St SYDNEY. The new office is conveniently close to Sydney CBD’s train stations. Coming from Town Hall Station to the new office takes you 6 minutes’ walk and from Wynyard Station (York St Exit) takes you 5 minutes’ to the new office.

Disabled entrance is accessible from York St, located at the left side of the building’s entrance. In case you are with pram or wheelchair that you need assistance for using disabled entrance, please ring or notify our office at: (Ph: (02) 9286 8700) 3 minutes before you arrive, and we will arrange someone to open the disabled entrance for you.

Parish Patience Bitel Immigration Lawyers management and staff welcomes you to our new office. 

Ministerial Intervention

Under the Australian Migration laws, the Minister for Immigration and Border Protection has the power to change any decision by any of the tribunals or courts and to grant a visa to a non-citizen. It enables the Minister to intervene and make a decision favourable to the applicant once he has exhausted all the avenues either from the Tribunals or Courts. Generally, Ministerial Intervention is the last option for a non-Citizen to remain in Australia. A non- Citizen can make a request for a Ministerial Intervention if he has received a decision by the Administrative Appeals Tribunal (AAT). An applicant who has a review application with the AAT may request the Tribunal to refer the case to the Minister by providing sufficient documentary evidence and submission establishing that there are enough compelling and compassionate grounds existing in the case for a Ministerial referral. Since the decision of Ministerial intervention is made by the Minister for Immigration and Border Protection personally it is important to seek immigration assistance from experienced Migration Agents who have successfully handled Ministerial Intervention applications. Further, such Ministerial Intervention applications are very complex and require a good preparation to successfully argue the case before the Minister.

Recently we have received positive Ministerial intervention decisions from the Minister for Immigration and Border Protection.

  1. In this case, we successfully provided sufficient documentary evidence to the AAT and managed to convince the AAT to refer a case to the Minister for Immigration and Border Protection for a Ministerial Intervention. Once the AAT referred the case to the Minister for Immigration and Border Protection, we then advised the applicant to provide further documentary evidence in support of his case and then provided a very detailed submission to the Minister for Immigration and Border Protection establishing that enough grounds exist for a possible Ministerial intervention. In December 2016, the Department of Immigration and Border Protection (DIBP) advised us that the Minister for Immigration and Border Protection has decided to intervene in the matter and granted a visa to the applicant.

  2. In another successful Ministerial Intervention application case, the applicant arrived in Australia 10 years ago and applied for a protection visa, which was refused by the DIBP and by the AAT.  She then applied for Ministerial Intervention many times without success. The applicant then approached us in 2013 to apply for a further Protection visa and we applied on behalf of the applicant for a further protection visa. DIBP and the AAT refused the application. We then assisted the applicant to apply for a repeat Ministerial Intervention application and advised the applicant about the required documents for a successful Ministerial intervention application. After receiving the necessary documents, we prepared a very detailed submission including country information and argued that enough compassionate and compelling grounds exist in the case for a possible Ministerial intervention. In December 2016 just before Christmas, the DIBP advised us that the Minister for Immigration and Border Protection had decided to intervene to grant a permanent visa to the applicant. It was a pleasant gift we were able to give to our client for the festive season.

Mahalingam Sutharshan (Shan)

Director - Parish Patience Immigration Lawyers

LL.B, LL.M (ANU), LL.M (Monash)

Graduate Certificate in Migration Law and Practice (ANU)

Member of Australian and New Zealand Society of International Law

MARN: 0961664

Success Story

The applicant Ms E.C. is a Philippine national. She arrived in Australia on 05 September 1998 as the holder of a tourist visa Subclass 676.   She did not depart when her visitor visa expired. 

The applicant then met and married her husband (who is also a Philippine national) on 27 May 2000 and had their daughter on 06 February 2001.  With our assistance, the applicant’s daughter applied for Evidence of Australian Citizenship on the basis of being an ‘ordinarily resident’ in Australia for 10 years under section 12(1)(b) of the Citizenship Act 2007 and on 27 January 2012, an Australian Citizenship Certificate was issued to her by DIAC.  The applicant’s daughter is the only child of the applicant and her husband.

On 08 May 2012, the applicant applied for a protection visa with DIAC.  On 07 June 2012, DIAC refused to grant her a protection visa.  The applicant then lodged with the Refugee Review Tribunal an appeal against that decision. On 06 March 2013, the RRT in its decision affirmed the decision made by DIAC.

The applicant’s husband was detained by immigration officials in February 2004 for overstaying his visa. He subsequently returned to the Philippines where he remains.

We submitted to the Ministerial Intervention Unit that the applicant’s daughter was already separated from her father when she was about three years old.  It would cause undue hardship and suffering if, given her age, she was now also separated from her mother. She has lived in Australia all of her life and English is her first language. There is no one here who can look after the applicant’s daughter in the absence of her mother. Moreover it would also be harsh and unreasonable to expect the child to be separated from her mother, or to expect her to return to the Philippines with her, given the fact she is an Australian Citizen. 

We argued that the applicant is a hardworking and dedicated mother. She has worked hard to provide for her daughter. She has resided in Australia for over 14 years (at the date of submission). She has integrated well within the Australian community. The continued presence of the applicant in Australia would not pose a threat to any individual in Australia or the Australian community in general.

Other than her immigration history, we submitted that the applicant has no adverse character or health problems.  She is bringing up her Australian citizen child and being a good mother.

We note that if the applicant has to leave Australia and go back to Philippines, her Australian child will be devastated, distressed and will suffer emotionally and mentally, because no one can look after her better than her mother (the applicant).  The applicant’s Australian citizen child needs support and care from the applicant at all times as her father is not here with her.  If the applicant is forced to leave Australia, this child will also suffer emotionally, and potentially she will grow up without her parents.  She will become vulnerable to any danger as she has no support and parental guidance, and she may well end up in foster care permanently, or worse, on the streets. This clearly is not in her or the community’s interests.

We also argued that as an Australian citizen, the applicant’s daughter has a right to live in her country of birth, Australia, with her mother. Australia has obligations to her under the Convention on the Rights of the Child.

The Minister then made a decision on 14 December 2016 to grant the applicant a long-term visitor visa, which is valid until 07 December 2020 with multiple entry and full work right.  The Minister indicated that this visa is to enable her to apply for another visa while she is in Australia.  We note in her case, she is eligible to apply for a parent visa when her daughter turns 18 in 2019.

Thong Nguyen

Director – Parrish Patience Immigration Lawyers

MARN: 0322836

Manus Island, Nauru refugee’s future uncertain.

The future of refugees on Nauru and Manus Island is still unclear.

While the U.S. has sent investigators to Australia to consider the situation has is no indication what stance Donald Trump will take on the issue.

Prime Minister Malcolm Turnbull remains confident that the process will take place but that it could take months.

The deputy secretary of the Foreign Affairs Department told a Senate Committee hearing that there was no time frame for the transfer.

Department secretary Michael Pezzullo confirmed that the U.S. might take a different view of the resettlement plans.

He hoped that the U.S. Government would hounour the agreement made with the Obama Government.

Mr. Pezzullo affirmed that there was no cap on numbers that the U.S. may take. The U.S. Government can decide after reviewing the causes how many people they may take from Nauru and Manus Island.

A digest of media opinions on the refugee situation that faces detainees on Manus Island and Nauru.

7-Eleven signs on with Fair Work Ombudsman to set the standard for franchising in Australia

Australia’s largest petrol and convenience retailer, 7-Eleven, has signed a Proactive Compliance Deed with the Fair Work Ombudsman which will set a new standard for franchising in Australia.

The landmark agreement commits 7-Eleven to a range of measures designed to ensure all its workers receive their lawful entitlements through strong accountability for all operators across its franchise network and supervision by the Fair Work Ombudsman.

The measures include installing and overseeing biometric shift scanning systems and the roll out of 7-Eleven owned CCTV systems at all outlets in order to allow the head office to monitor employee hours and make sure workers are paid correctly.

The deed also implements measures aimed at overcoming the challenging and unlawful practice of ‘cash backs’ by workers to franchisees which were revealed by the Fair Work Ombudsman’s Inquiry Report into workplace non-compliance in the 7-Eleven network.

Fair Work Ombudsman Natalie James said the commitments in the deed would help prevent the unlawful practices identified in the regulator’s April 2016 Inquiry Report, increase accountability across the entire franchise network and introduce a culture of compliance from head office down.

“The measures in this deed are the most robust and comprehensive that any franchise brand has in place in Australia,” Ms James said.

“The goal is to make sure franchisees pay workers correctly in the first place. As we noted in our Inquiry report, non-compliance in this network has been long term, extensive and systemic. Some franchisees have demonstrated they will go to extreme lengths to circumvent record keeping systems. The deed establishes a framework for 7-Eleven to detect, investigate and rectify underpayments within its network now and into the future. It also maintains commitments to backpay workers underpaid in the past.”

The actions required by the deed will ensure employees and franchisees understand their rights and obligations, including ensuring franchisees understand the wages costs associated with their store. It will make franchisees and Head Office accountable through new systems and oversight by the Fair Work Ombudsman. The measures include:

Managing claims of underpayment:

The current 7-Eleven Wage Repayment Program – will continue to receive and process all employee Claims submitted prior to 31 January 2017, as well as all Claims previously made to and received by the Panel. 7-Eleven will pay the aggregate Claim amounts approved through the 7-Eleven WRP on an uncapped basis and will report to the FWO at least quarterly regarding the outcome of Claims to the 7-Eleven WRP. Claimants who disagree with the outcome of a claim can seek review by the WRP and further review by the Fair Work Ombudsman if they choose. Note – to date, 7-Eleven has paid more than $55 million in wages to employees who were underpaid by 7-Eleven franchisees.

Rectification of Underpayments - Where an underpayment claim is substantiated by the IIU, 7-Eleven will require the relevant franchisee to rectify any underpayment to that Employee within 30 days of service.

If the Franchisee fails to rectify the underpayment within 30 days of 7-Eleven having notified the Franchisee of the substantiated Underpayment claim, 7-Eleven will rectify the underpayment within a further 15 days.

Compliance with Commonwealth Workplace Laws – 7-Eleven acknowledges its moral and ethical responsibility to ensure compliance with the law in relation to all employees and meet Australian community and social expectations.

Auditing and Reporting to the FWO – 7-Eleven will engage an independent auditor to conduct three annual audits throughout the duration of the Deed assessing compliance with Commonwealth Workplace Laws and applicable Fair Work Instruments. Within two months of the audit, 7-Eleven must provide the Fair Work Ombudsman with a summary report prepared by the auditor outlining findings and steps taken to rectify contraventions.

Reporting of Non-Compliance with Commonwealth Workplace Laws - 7-Eleven will, at its own expense, establish and maintain a dedicated telephone hotline and email account service with interpreter accessibility to ensure that any person, including Employees and members of the public, may make enquiries, lodge complaints or report potential non-compliance with workplace laws, including underpayment of wages, at 7-Eleven Franchises. The hotline must have the capacity to receive, respond to and manage complaints made anonymously.

The Fair Work Ombudsman and 7-Eleven signed the compliance deed on Tuesday 6 December 2016. 

Read More>>

Priority consideration – India and United Arab Emirates

Legislative Instrument – IMMI 16/093 – F2016L01830 – Migration Regulations 2994 – Specification of Priority Consideration of Certain Visa Applications.

This instrument extends Priority Consideration visa service available to eligible passport holders from the Peoples’ Republic of China, to eligible passport holders from the Republic of India and the United Arab Emirates (UAE).

Schedule 1 of this Instrument lists of Reg 2.12M(2) the visas, eligible passports, forms and application requirements for priority processing consideration, for:

  • Nationals of the Republic of India are eligible for priority consideration of Subclass 600 (Visitor) Tourist stream using Form 1419 and Business Visitor streams using Form 1415 and where the applicant holds a Republic of India passport and the request is at an Australian Visa Application Centre in India listed on the Department’s website.

  • Nationals of the UAE are eligible to make an application for priority consideration of Subclass 600 (Visitor) Tourist stream using Form 1419 and Business Visitor streams using Form 1415, where the applicant holds a UAE passport and the request is made at an Australian Visa Application Centre in the UAE listed on the Department’s website.

Schedule 2 of this Instrument lists for Reg 2.12M(5) lists the visas, eligible passports, forms and application requirements for “fast track” priority processing consideration, for:

  • National of the Republic of India are eligible for priority consideration of Subclass 600 (Visitor) Tourist and Business Visitor streams using Form 1472 and where the applicant holds a Republic of India Passport and the request is at an Australian Visa Application Centre in India listed on the Department’s website.

  • Nationals of the UAE are eligible to make an application for priority consideration of Subclass 600 (Visitor) Tourist and Business Visitor streams using Form 1472, where the applicant holds a UAE passport and the request is made at an Australian Visa Application Centre in the UAE listed on the Department’s website.

Read More>>

Source: MIA NoticeNo.91 2 December 2016

Migration Legislation Amendment – 2016 Measures No 5

Legislative Instrument – F2016L01745 – Migration Legislation Amendment (2016 Measures No. 5) regulation 2016.

  • Ten year validity visitor visa stream

The amendment creates a new Subclass 600 (Visitor) visa stream to be known as the Frequent Traveller stream for frequent travellers which both tourism and business visitor activities and allows up to 10 years’ validity.

The Schedule 2 criteria will be that the applicant intends to visit Australia:

a)      As a tourist; or

b)      To engage in a business visitor activity.

The base VAC for this visa will be $1000.

The visa allow the visitor multiple entry with a stay of 3 months after each entry. The visitor must stay in Australia for more than 12 months in any period of 24 months.

The visitor must undergo a medical assessment if requested by the Minister in writing to do so.

The visitor visa stream is only be available to citizens of certain countries which will be specified in an instrument. Initially, this visa will only be available to Chinese nationals.

Read More>>

Source: MIA Notice No. 86, 14 November 2016

Visa changes to provide economic boost to Northern Australia

Northern Australia will benefit from changes to Work and Holiday visas being introduced.

The Minister for Immigration and Border Protection Peter Dutton said that Work and Holiday (subclass 462) visa holders who undertake three months' work in Northern Australia in tourism and hospitality or agriculture, forestry and fishing will be eligible to apply for a second Work and Holiday visa.

"Tourism and agriculture are key industries for Northern Australia and they often require more workers in their peak seasons. These changes will entice more young people to experience Northern Australia and support these vital sectors," Mr Dutton said.

"This change will provide an incentive for these young mobile visa holders to visit and work in Northern Australia as part of their 12 month visa.

"The spending by these visa holders while they stay in Northern Australia will also provide important economic benefits."

The Minister for Resources and Northern Australia Matt Canavan said the measure delivers on another commitment from the Coalition Government's White Paper on Developing Northern Australia.

"Our Government is the first to implement a practical agenda to develop the north, not only to drive investment and create new jobs, but also to ensure that people who live in the north have the same economic opportunities as the rest of Australia," Senator Canavan said.

"This new measure will contribute to Australia's attractiveness as a top destination for backpackers and help support local seasonal businesses."

Applicants will be able to apply online and will need to meet all legislative requirements including age, health and character requirements.

Work undertaken prior to 19 November 2016 will not be counted towards the three-month work requirement as the reform is intended to encourage additional Work and Holiday visa holders to spend time living and working in Australia's north.

The changes apply to work undertaken in Northern Australia broadly including all of the Northern Territory and those parts of Western Australia and Queensland above the Tropic of Capricorn.

Read More>>

A.P.B. Education

Specialist IELTS Test Training and Coaching

Passing an IELTS test is now an essential requirement for all applicant for General Skilled Migration, student visas, and for many employer sponsored applicants. Adrian Bitel provides individual lessons to assist applicants achieve proficiency to the required levels in:

  • Reading          

  • Speaking

  • Writing

  • Listening

He gives comprehensive ONE to ONE Personalised Coaching in any or all of the above areas at very competitive rates.

Contact: Adrian Bitel on Ph: (02) 9286 8700 or Mobile: 0412 656 026                                                                        

Parish Patience Immigration Lawyers
Level 3, 83 Pitt Street
Sydney NSW  2000
Australia 
 
Tel:        +61 2 9286 8700
 
    Email:           ppmail@ppilaw.com.au

Website:       www.ppilaw.com.au

 

 

 

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