Visa Cancellation: Can I leave Detention?

Permanent Residents of Australia committing “significant” offences are sent to immigration detention once they have received a notification that their visa has been cancelled.

Visa holders who face such cancellations have already spent long jail terms in prison. Upon release from Prison, they are subject to the jurisdiction of the Department of Immigration and Border Protection and taken directly to immigration detention.

Those who are detained may have a right to review the cancellation of their visa at the Administrative Appeals Tribunal however are generally not able to leave immigration detention even during the review process. Such detainees are prevented from making an application for any visa to allow them to leave detention as a result of Section 501 of the Migration Act 1958 (Act).

Section 501 of the Act relevantly provides that ‘A person is not allowed to make an application for a visa at a particular time (the application time) that occurs during a period throughout which the person is in the migration zone if at an earlier time during that period, the Minister made a decision under section 501 to cancel a visa that has been granted to the person and that decision was neither set aside nor revoked before the application time’.

The Act however does not prevent a person in such circumstances from making an application for Protection or WR-070 Bridging Visa (Removal Pending) (RPBV). However, the RPBV is only available to a person after an invitation is extended to them by the Minister.

Footnotes are available upon request.

By Farhan Rehman, Partner at RSG Lawyers.

Contact information: Email: Tel: (03) 9350 4440

Australian Student Visa & “Assessment Levels”

We write this short summary to update you on Department of Home Affairs Assessment Levels.

Instrument 07/14 was used to determine the Assessment Level of the countries.

However, Instrument 07/14 was repealed (removed) years ago and is no longer used.

The Department of Home Affairs no longer displays any information publicly about the Assessment Levels of a country when assessing a student visa application.

Under Part 4 of the Department of Home Affairs Procedure Advice Manual it states:

Under no circumstances are decision makers to publicly disclose the immigration risk rating for a particular education provider or country – for example, “education provider x has an immigration risk rating of ‘two’”.

A student can determine their likely financial capacity and English language proficiency requirements by entering their intended education provider and country of citizenship into the Border website online client service tool. Please note that the word use here is “likely” and it is not a guarantee.

The country and provider immigration risk model operates in policy; it is not legislated.

The country and provider immigration risk model is intended to guide decision makers as to when to require formal evidence of a student’s financial capacity and English language proficiency.

Decision makers have the discretion to require evidence of financial capacity and English language proficiency from applicants with ‘streamlined evedentiary requirements’.

However, under policy decision makers at the Department of Home Affairs should not diverge from the outcomes of the student’s combined country and provider immigration risk rating unless particular circumstances exist.

We hope this short summary helps clarify some misunderstandings current and prospective International students may have regarding Assessment Levels.

By RSG Lawyers.

Footnotes available upon request.

Contact: Email: Ph: (03) 9350 4440 Web:


Risk: Self-Sponsored Business Nomination

As of December 2015, Department Policy states that a nomination applications may be refused if it is found that a position was created solely to secure only a migration outcome.

Where the Director is also the visa applicant, or the visa applicant is a relative or person associate of an officer of the sponsoring business, it is likely a refusal will be imminent.

Consistently, the Department may request current and historical ASIC Extracts which will show the Directors and Shareholders of the Company.

The Department will also closely scrutinise applications where:

– the business has been operating for a short period.
– the business has a low business turnover.
– the business has no Australian employees.

Considering the above is only Department Policy, there have been some decisions in the Administrative Appeals Tribunal which have set aside such refusals by the Department in such cases.

Thus, there is no umbrella approach to self-sponsored applications (as yet) and those considering self-sponsored applications must oblige to obtain legal advice from a well-informed migration practitioner before proceeding with such an application

By Farhan Rehman, Partner at RSG Lawyers.

Footnotes available upon request.

Two Recent High Court Developments – Immigration Law (Part 1)

Recently in the High Court there have been two important developments concerning immigration law.


The first involves the validation of processing asylum seekers in Manus Island Papua New Guinea and the second invalidates immigration Minister Scott Morrison’s cap on protection Visas.  This short note will discuss the first of these cases, with Part 2 discussing the second case in a forthcoming note.


In the first decision, asylum seekers will continue to be processed in Papua New Guinea following a ruling by the High Court on 18 June 2014. The High Court dismissed a legal challenge by an asylum seeker who is being held in immigration detention on Manus Island,. He  had argued that his detention was invalid under the Australian Constitution. The court ruled that the Labor immigration Minister at the time Chris Bowen’s designation of Manus Island as a processing centre back in October 2012 was lawful.


The court was asked to look at sections of the Migration Act under which the Government is able to declare another nation as a “regional processing country” to which asylum seekers can be sent, as an alternative to being processed in onshore detention facilities in Australia. The High Court rejected this notion and instead unanimously held that that the sections are valid under the alien’s power contained in the Australian Constitution.


Recently, a Senate inquiry was established to investigate the circumstances surrounding the death of Iranian asylum seeker Reza Berati at Manus Island. The inquiry also provided a detailed look at Australia’s current migration policy of offshore processing and resettlement of asylum seekers. During the Inquiry, those who have spent time working at the detention centre had described insufficient facilities for the number of asylum seekers and dire conditions in violation of basic human rights.



Shruti Dahal            (References available upon request)