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Author: Tom Foran

Potts Lawyers > Articles posted by Tom Foran

Ministerial Direction no. 99 – New legislation for non-citizen character assessment

Australian passports in a pile

New legislation for non-citizen character assessment to take effect from 3 March 2023 Non-citizens in Australia that do not pass the ‘character test’ are liable to have their Australian visa cancelled or their visa application refused. The character test is found in paragraph 6 of section 501 of the Migration Act 1958. There are various grounds under which a person can fail the character test. A person that fails even one ground will not pass. Amongst the various ways that they can fail the character test is: if they have a ‘substantial criminal record’; if they have been convicted for sexually based offences...

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The Preamble to Ministerial Direction 90

Introduction All non-citizens in Australia hold a visa that is in effect. If they do not, then they meet the definition of ‘unlawful non-citizen’. Visa-holders can lose their visa, and therefore lose their right to lawfully remain in Australia – they immediately become unlawful. Non-citizens can lose their visa through both ‘general’ cancellation provisions and through ‘character’ cancellation provisions. When a visa is automatically cancelled because the non-citizen is not of good character and the mandatory visa cancellation provisions have been triggered, the non-citizen is permitted to seek revocation of that decision. Very tight timeframes apply. After the non-citizen files documents to initiate...

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Ministerial Direction 90 and ‘Impediments to Removal’

Introduction Non-citizens in Australia are expected to comply with laws, and not engage in criminal activity or other serious conduct. A non-citizen that has that has not met these expectations can become run afoul of Australia’s Immigration laws, and ultimately find themselves subject to Ministerial Direction 90 (the ‘Direction’). Decision-makers must apply the provisions specified in the Direction to determine what will happen to the immigration status of the wrongdoer. We’ll cover the Direction in some detail below, but the main focus of this post is on the Impediments to Removal consideration. Many of the considerations of the Direction weigh against the...

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Australian Visa Cancellation and Children

Introduction This post is not about cancelling the visas held by non-citizen children! It aims to clarify the specific factors that are relevant when a non-citizen subject to Australian visa cancellation has minor children that live here. All non-citizens living in Australia are potentially subject to visa cancellation. Permanent visas; provisional visas; temporary visas; and bridging visas can all be cancelled under the strict ‘section 501’ character provisions. The cancellation process can be discretionary, or it can be automatically made through the operation of mandatory visa cancellation provisions. The Minister acting personally can cancel a visa, or a decision-maker working in the...

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Unlawful Non-Citizens in Australia

The Migration Act 1958 (the ‘Act’) provides the legislative requirements for the definition of ‘unlawful non-citizen’. You might be curious how a person can meet that definition. You may wonder about the implications of being an unlawful non-citizen and be interested in hearing if there is anything that someone meeting that definition can do about it. If these questions interest you and you want to know the answers, read on!   How someone can meet the definition of being an ‘unlawful non-citizen’ The starting point for understanding who might meet the definition of ‘unlawful non-citizen’ is section 13 of the Act. That section explains that...

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Subclass 189 New Zealand stream – COVID affected income threshold

Amending legislative instrument from 14 November 2021 In previous posts, we wrote about the special permanent visa pathway set up from 1 July 2017 that is only available to New Zealand citizens. The visa is for New Zealand citizens in Australia that can demonstrate that they have made an economic contribution to Australia. It is the subclass 189 visa New Zealand stream. The pathway is under utilised. The uptake rate is said to be only about 10% of those anticipated to apply for the visa. It is regrettable that few people seem to know about it, nor apply even though they are...

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New Zealand Citizens and Australian Permanent Visa Applications

Lodging an Australian Permanent Visa Application as an New Zealand Citizen If you are a New Zealand citizen and have been living in Australia from 19 February 2016 or before, and you haven’t already lodged an Australian Permanent Visa application, maybe now is the time for you to get that ball rolling… This post will explain reasons why you might choose to do that – and some reasons why you might not! We will then explain a bit about the eligibility criteria for a special permanent visa pathway that is only available to New Zealand citizens. You might spend time and money...

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New Rules for Lawyers and Immigration Assistance at the Administrative Appeals Tribunal

The rules have changed. If you (or someone you know) has experienced a visa application refusal or has had their visa cancelled, and an Administrative Appeals Tribunal (“AAT”) review is available, this post has relevance to you. Immigration Assistance Section 276 of the Migration Act 1958 (the “Act”) provides for the definition of “Immigration Assistance”. The definition includes situations where a person uses their knowledge or experience of migration procedures to provide advice, and to prepare visa applications and visa cancellation review applications. Preparing materials for a review application with the AAT in relation to a visa application or visa cancellation matter and...

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A Visa Application Refusal and Visa Cancellation Matters

Changed decision-making requirements: Ministerial Direction #90 To help protect the Australian community, the Australian government refuses visa applications by non-citizens that have engaged in serious conduct. A visa holder could have their visa cancelled because they have engaged in criminal activity. If a visa application is refused or a visa cancelled, there can be huge ramifications for the individual involved. The non-citizen’s Australian family members too can experience repercussions. Children living in Australia are severely impacted if their parent or caregiver’s visa is cancelled, and they are subsequently removed from Australia. The decision to refuse a visa application or to cancel a visa...

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