Minister for Immigration Seeks Power to Terminate Unwanted Visa Applications

by Mark Webster, Acacia Immigration Australia, 2 June 2010

The Minister for Immigration, Chris Evans, has introduced a Bill to Parliament granting him the power to terminate visa applications based on the individual characteristics of the visa applicant.

The Migration Amendment (Visa Capping) Bill 2010 is intended to deal with the build up in the numbers of General Skilled Migration applications in the pipeline. There are currently 147,000 people waiting for their GSM applications to be processed, approximately 40,000 of whom are international students who have applied onshore for their visas.

However, the Bill potentially could be applied to any type of visa, apart from refugee visas. For instance temporary visas such as student visas and 457s, family sponsored visas or even partner visas.

It is envisioned that the Bill, if passed, will allow the Minister to terminate an application based on the person's individual characteristics. For example, the Minister could issue a legislative instrument to the effect that all applicants nominating cook or hairdresser as their occupation in onshore or offshore skilled applications be terminated. This would result in the application being taken as never having being lodged, the return of the application fee, and termination of any bridging visa or associated temporary visa.

If applying onshore, the applicant would quite possibly have only 28 days to leave the country, even if they have been waiting for years for their GSM application to be processed.

As the application has not been refused, but rather taken never to have been made, it will not be possible to appeal the decision to the Migration Review Tribunal (MRT). Any cases still pending review at the MRT are also likely to be terminated.

In addition, it would not be possible for people matching the characteristics set by the Minister to even apply for the capped visa subclass until the end of the financial year.

Current provisions within the Migration Act only allow cap and cease by visa class or subclass. In particular:

  • They do not allow applications to be cancelled by specific criteria - if a cap is applied, all applications for the visa subclass still not decided are ceased
  • For cap and cease to be used, the Migration Regulations need to changed to allow the visa subclass to be capped at a certain number
  • There are no consequential cancellations of temporary or bridging visas after cap and cease is used
  • It is still possible to apply for the class or subclass of visa after the cap has been set

At first reading, the new Bill seems to give an excessive amount of power to the Minister to cancel applications in any subclass on any condition he seeks to impose - a power which can be exercised by issuing a legislative instrument and is open to potential abuse.

The Bill has a tendency to subvert the operation of the Migration Act, and the usual process for changing visa criteria. The Minister will be able to prevent certain applicants from being granted a visa, without needing to change the Migration Regulations. This effectively means that new visa criteria can be introduced by the Minister without oversight by Parliament, without community consultation, and retrospectively without notice.

The Bill also indicates that if a person holds a temporary visa which would have ceased on notification of a decision on the capped visa, then the temporary visa will cease 28 days after termination of the capped visa application. It appears that this provision is intended to operate in relation to 2-stage partner visas, but might equally apply to 485 or 457 holders applying for General Skilled Migration. The Bill has not yet been passed through Parliament, and is currently being reviewed by the Senate Legal and Constitutional Affairs Committee, and we will keep you posted on developments.

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