Can the law exclude procedural fairness?

In previous publications, I have touched on the importance of procedural fairness in administrative decision making. Today, I will briefly discuss whether the requirement for such a decision maker to accord by the rules of procedural fairness can be excluded by statute.

There will always be a duty for an administrative decision maker to accord to the rules of procedural fairness unless there is “clear and contrary legislative intention“. Procedural fairness may be excluded through statutory construction however the courts in Australia increasingly view legislation in a way that implies that a duty to afford procedural fairness exists on the decision maker even where legislation may ambiguously limit such a common law right.

This implied judicial view seems to have been adhered to since the judgement by the High Court in Saeed v Minister for Immigration and Citizenship 2010 (Saeed) where Gleeson CJ stated that procedural fairness is “protected by the principle of legality“.

Gleeson CJ’s statement in Saeed has been interpreted by some academic commentators as “the Court having accorded constitutional status on the principle“.

The principle of legality governs the relationship between Parliament, the Executive and the Courts. It is often associated with the “presumption that Parliament does not intend to interfere with the fundamental common law rights, freedoms and liberties of its citizens“. Procedural fairness can be seen as one of those fundamental “common law rights” as was stated by Gleeson CJ in Saeed.

In Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3, Heydon J said:

“The ‘principle of legality’ holds that in the absence of clear words or necessary implication the courts will not interpret legislation as abrogating or contracting fundamental rights or freedoms. For that principle, there are many authorities, ancient and modern, Australian and non-Australian”.

In conclusion, the legislature could limit the application of procedural fairness. However, procedural fairness is a common law right that is the cornerstone to fair administrative decision making and the courts are not, on the face, willing to forgo this fundamental right especially where legislation is not abundantly clear on the limitation of procedural fairness.

Written by Farhan Rehman.
Director, RSG Lawyers and Associates. 
www.rsglaw.com.au

Footnotes available upon request. 

Lawfulness of Australia’s Travel Ban

Article 12 of the International Covenant on Civil and Political Rights makes it clear “that everyone shall be free to leave any country including his own… No one shall be arbitrarily deprived of the right to enter his own country”. While international instruments, such as article 12 of the ICCPR, cannot be used to override clear and valid provisions of Australian federal law, where legislation is not clear or ambiguous, the courts may favor a construction that accords with Australia’s international law obligations.

The Australian Constitution has application however there is no direct reference to “citizenship” in the Australian Constitution. Therefore, we are left with Australian case law for answers to whether there exists a right to entry for Australians at common law. 

Air Caledonie International v The Commonwealth [1988] HCA 61; 165 CLR 462; 82 ALR 385

The Air Caledonie International judgement was concerned with the constitutional validity of what was known as the ‘immigration tax’.

The Migration Amendment Act 1987 (Cth) (Act) claimed to amend the Migration Act 1958 (Cth) and imposed a ‘fee for immigration clearance’. All persons, other than prescribed passengers, arriving in Australia by airline were required to pay a prescribed fee. By provision of the Act, airline operators were then obliged to pay the fees to the Commonwealth on behalf of all of its passengers and would collect the said fee from passengers entering Australia.

Air Caledonie International, the plaintiff in the case, submitted as follows:

a) s.34A of the Act was a tax, and was thus invalidated by virtue s. 55 of the Commonwealth Constitution; alternately

b) the imposition of the charge could not be characterised as a law under any of the designated heads of Commonwealth Parliamentary power.

The High Court found in this case that a charge for a ‘privilege’ or a ‘service’ would be a tax where the government was in fact providing a ‘right’ rather than a ‘privilege’. A charge cannot be rationalised as a fee for service where the ‘service’ is in fact the provision of a ‘right’.

The High Court said that “[t]he right of the Australian Citizen to enter the country is not qualified by any law imposing a need to obtain a licence or “clearance” from the Executive.” Important to the question I am writing about today, the Court found that the provision of immigration clearance (or entry) to an Australian citizen was a common law right rather than a government service.

There are other cases that provide guidance on the freedom of movement out and in of Australia that I hope to expand on in future publications.

The pandemic will result in various applications some of which may use common law rights, like those referred to in the Air Caledonie case, as a basis to argue against the actions undertaken by the Government during the pandemic.

While the health of Australian’s is important, any actions undertaken by the Government must be within the scope of the authority it has to do so. It seems then that the travel ban could have grounds for a challenge if tested in the courts.

Footnotes available upon request.

Written by Farhan Rehman.

Partner, RSG Lawyers and Associates.
http://www.rsglaw.com.au

COVID-19 – Update On RSG Operations

RSG Lawyers and Associates will continue to operate during the COVID-19 event.
While our team will be operating remotely, our reception will remain open to take calls only. Consultations will be available by telephone or video link.
Should you have any queries, you are welcome to contact our reception on (03) 9350 4440. If you wish to contact our Wagga Wagga reception, please call (02) 6922 7758.
The COVID-19 event will not disrupt any of our clients matters and our office has a plan and is well resourced to be able to work through a mandatory national quarantine should it be implemented by the Australian Government.
We take this opportunity to inform the public to follow any Department of Health directions, to stay well informed and to never panic.
Yours sincerely,
The Team at RSG Lawyers and Associates.

Must a decision-maker provide a statement of reasons?

I act on behalf of clients who have received a decision by an Australian government department or a public official. The power given to such departments or public officials to make such decisions are by legislation.

Such decisions are reviewable by:

-reconsideration by the original decision maker;

-merits review at the relevant Tribunal (ie AAT, VCAT);

-judicial review on the basis of an error of law; or

-complaint to the Ombudsman.

When a decision notice is given to an Applicant, it must generally be accompanied by a document that pronounces the reason for the decision made. This document is commonly known as the “statement of reasons”.

I will briefly summarise in what circumstances a decision-maker may have an obligation to provide a statement of reasons.

There is no particular duty at common law for the decision-maker to provide a statement of reasons. If there is a duty to provide a statement of reasons, it will be due to the governing legislation of a decision.

Generally, the decision-maker will have a duty to provide a statement of reasons where:

  • The decision is reviewable at the Administrative Appeals Tribunal. For example, under Section 28 of the Administrative Appeal Tribunal Act 1975 it states:

“Person affected by decision may obtain reasons for decision

Request for statement of reasons

             (1)  Subject to subsection (1AAA), if a person makes a decision in respect of which an application may be made to the Tribunal for a review, any person (in this section referred to as the applicant ) who is entitled to apply to the Tribunal for a review of the decision may, by notice in writing given to the person who made the decision, request that person to give to the applicant a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision, and the person who made the decision shall, as soon as practicable but in any case within 28 days after receiving the request, prepare, and give to the applicant, such a statement.”

  • The decision can be judicially reviewed at Federal Court; or 
  • the legislation that gives the decision maker the power to make the decision also obliges the decision-maker to set out a statement of reasons. 

Once you receive Statement of Reasons

Once you obtain a statement of reasons, it is important you carefully consider whether the decision-maker has provided any inadequate reasons for the decision.

If you find a mistake or error in the decision-makers reasons you may review the decision.

There are strict time-lines for reviews of a decision and in some circumstances those time-lines are not extendable.

By Farhan Rehman
Partner at RSG Lawyers.
Tel: (03) 9350 4440
Email: farhan@rsglaw.com.au

Footnotes are available upon request.

Distinguished Talent Visa (Subclass 858)

In The Press

We acted for an Iranian National named Mohsin Dashti in 2015. Through the services of our firm, Mr Dashti successfully obtained a Distinguished Talent Visa. We also worked closely with Athletics Australia during the process. You can view Mr Mohsin Dashti’s story which was reported on SBS Australia News by clicking here.

The Distinguished Talent Visa (subclass 858)

The Distinguished Talent Visa is for those that are uniquely talented and recognised in their field. This may include those persons in academic, entertainment, arts, sport, science or a combination of all.

If a person is eligible, and wishes to apply, the application must be prepared carefully having regard to the requirements which are prescribed under the Migration Act 1958 and Migration Regulations 1994.

Some of the requirements are summarised as follows:

-Demonstrate that you have been “prominent” in your field for the past two (2) years.

-Be nominated by an Australian citizen, Australian permanent resident, eligible NZ citizen, or Australian organisation in Australia with a national reputation in your field.

-While you can be any age when applying for this visa, if you are under 18 years of age or over 55 years of age you must demonstrate that you of exceptional benefit to Australia.

-Demonstrate that you will have the ability to set up yourself in Australia.

-Demonstrate that you will be an asset to Australia.

-Prove that you are Internationally recognised.

-Meet character and health requirements.

– You must demonstrate that you have functional English.

If you are granted the visa

The distinguished talent visa is a permanent residence visa.

This means that if you (and members of your family unit) are granted this visa you can:

-Stay in Australia indefinitely.

-Work and Study in Australia.

-Enroll in Medicare (Medicare is the scheme that gives Australian residents access to healthcare).

-Travel to and from Australia for five years. After the five years has passed, you and your family will need to be granted a resident return visa to be able to be able to enter back into Australia.

Do you need further information?

You are welcome to contact us on (03) 9350 4440.

If you are calling internationally please add the country code as follows: +61393504440.

Our phone line is answered 24 hours and 7 days a week.

Written by RSG Lawyers.
Footnotes are available upon request.

Restrictions on Permanent Residence Travel

It is correct to say that your Australian Permanent Residency (PR) generally gives you indefinite stay in Australia. However, if you wish to travel to and from Australia after the initial 5 years of your PR grant, you will be required to obtain a Resident Return Visa (RRV).

You can obtain an RRV for 5 years or 12 Months subject to your particular circumstances.

5 Years

To obtain a 5 year RRV you would need to prove you have been in Australia physically for at least 2 of the last 5 years physically in Australia.

12 Months

In order to obtain a 12 month RRV, you could show:

-Evidence that you have established residence in Australia – for instance leased accommodation, enrolled your children into school, Australian bank accounts or moved your assets to Australia.

-Close family members in Australia.

-Cultural ties to Australia.

Absence for more than 5 Years

If you have not returned back to Australia for more than 5 years, you would need to show compelling reasons for your absence.

The case Lorenzo Paduano v Minister for Immigration & Multicultural & Indigenous Affairs & Migration Review Tribunal [2005] FCA 211 (10 March 2005) established the following test to demonstrate compelling reasons:

• “The applicant is the one who must have been compelled by the reasons for absence
• Applicants do not need to demonstrate an involuntary element, involving circumstances beyond a person’s control or involving physical or legal necessity
• Compelling is to be interpreted broadly – forceful reasons for an absence may involve moral necessity or other circumstances which are convincing by reason of their forcefulness”.

By RSG Lawyers

Footnotes available upon request
admin@rsglaw.com.au
(03) 9350 4440

Student visa refusals and cancellations: transferring to a lower level of study

We have assisted a number of students at the Tribunal and the Federal Circuit Court who have had their student visa refused or cancelled.

Today, we write to inform you of one of the reason why your student visa may be refused or cancelled if you transfer to a lower level of study.

In our experience, it is one of the more common reasons why students in Australia are refused or cancelled their visa.

Condition 8202 is found in Schedule 8 of the Migration Regulations 1994 and states as follows:

 (1)  The holder must be enrolled in a full-time course of study or training if the holder is:

                     (a)  a Defence student; or

                     (b)  a Foreign Affairs student; or

                     (c)  a secondary exchange student.

             (2)  A holder not covered by subclause (1):

                     (a)  must be enrolled in a full-time registered course; and

                     (b)  subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

                     (c)  must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

                              (i)  the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

                             (ii)  the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

             (3)  A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

                     (a)  is enrolled in a course at the Australian Qualifications Framework level 10; and

                     (b)  changes their enrolment to a course at the Australian Qualifications Framework level 9.

You must maintain enrolment in a registered course that is the same level as, or at a higher Australian Qualification Framework (AQF) level than, the registered course for which you were granted a visa

If you transfer to a lower AQF level, you will be in breach of condition 8202 and may risk refusal or cancellation of your student visa. This is also generally applicable if you are changing to a lower AQF level even with the same education provider.

The only exemption that applies is if you are studying a doctoral degree and you wish to transfer to a master degree.

We will continue to share further updates on what to avoid while you are on a student visa in Australia.

By RSG Lawyers.

Footnotes are available upon request.

Email: admin@rsglaw.com.au

(03) 9350 4440

Foreign Investment Review Board Approvals and Real Estate Exemptions

Australia’s legal framework generally requires foreigners to apply for foreign investment review board (FIRB) approval before purchasing residential real-estate in Australia.

However, under the Foreign Acquisitions and Takeovers Amendment Act 2015 (Act), certain people and transactions are exempt from the usual requirement for notification under the Act.

In summary, the following criteria must be met to be exempt from FIRB approval:

 an Australian citizen (regardless of whether they are ordinarily resident in Australia or not) or a New Zealand citizen;
• the holder of an Australian permanent visa; or
• foreign persons purchasing property as joint tenants with their Australian citizen spouse, New Zealand citizen spouse, or Australian permanent resident spouse.

Note, the above-mentioned exemption does not apply to those purchasing property as tenants in common.

Further to the above, foreigners do not require FIRB approval to obtain interest in residential real estate that is:

• a new or near-new dwelling purchased from a developer that holds a new or near-new dwelling exemption certificate that allows the developer to sell dwellings in the specified development to foreign persons;

• an aged care facility, retirement village or certain student accommodation provided the interest is not above the relevant threshold. For more information, see Guidance Note 14;

• a time share scheme where the foreign person’s total entitlement (including any associates) to access the land is no more than four weeks in any year;

• acquired by will or devolution of law;

• acquired directly from the Commonwealth, a State, a Territory, or local governing body, or an entity wholly owned by the Commonwealth, a State, a Territory or a local governing body; and

• an interest in certain residential real estate in designated Integrated Tourism Resorts.

Navigating through Australia’s foreign investment regime can be a complex and nuanced process. There are severe penalties for non-compliance and therefore it is imperative that any foreigner acquiring property in Australia carefully analyse the obligations imposed under the Act.

You are welcome to contact our office on the below listed contact details if you require further information.

By RSG Lawyers.

Footnotes are available upon request.

Email: admin@rsglaw.com.au

(03) 9350 4440

Criteria for 132 Business Talent Visa – Significant Business History Stream

BUSINESS TALENT (PERMANENT) VISA – Subclass 132

1. Significant Business History stream

This visa allows experienced business owners to operate a new or existing business in Australia, travel in and out of Australia any number of times as long as the visa is valid, study in Australia, have their family accompany them to Australia (they will have access to work and study rights) and live in Australia as a permanent resident for five years.

Requirements

You must be younger than 55 years of age, although a state or territory can waive this requirement if your proposed business will be of exceptional economic benefit to the region where it will operate.

You must have a complete successful business career.

You must possess a genuine desire to continuously own and uphold a management position in a business in Australia.

You, your partner, or you and your partner combined must meet all of the following:

– total net assets of at least AUD400 000 as the ownership interest in one or more qualifying businesses for least two of the four fiscal years immediately before you are invited to apply and if the qualifying business(es) was a publicly listed company, a shareholding of at least 10 per cent of the total issued capital.

– net business and personal assets of at least AUD1.5 million that are legally acquired and can be transferred to Australia within two years after the visa is granted.

– a total annual turnover of at least AUD3 million in one or more of your main businesses in at least two of the four fiscal years immediately before you are invited to apply.
– ownership interest of at least:

(a) 51 per cent of a business with turnover of less than AUD400,000 per year; or
(b) 30 per cent of a business with turnover of more than AUD400,000 per year, or
(c) 10 per cent of a publicly listed company.

You and your partner must have had no involvement in unacceptable business or investment activities.

You must be nominated by an Australian state or territory government that has approved your expression of interest (EOI).

You and any family who apply for the visa with you must meet our health and character requirement.

You must have functional English. If requirement for functional English cannot be met by you or any dependant applicant 18 years or older, you can pay the second instalment of the visa application charge.

You must not have had a visa cancelled or a previous application refused.

Cost

The visa costs AUD7,290 for the main applicant.

An additional charge for each family who applies for the visa with you is also payable.

– 18 and over: AUD3,645
– Under 18: AUD1,820

Duration of stay once you are granted the visa

Stay in Australia indefinitely.

Business Obligations after being granted this visa

You must:

establish a qualifying business in Australia, or participate in an existing qualifying business in Australia.

maintain substantial ownership.

maintain direct and continuous involvement in the day-to-day management of the business.

make decisions that affect the overall direction and performance of the business in a way that benefits the Australian economy.

By RSG Lawyers

Footnotes are available upon request.

3 Immigration Law Updates 2019 – Parents Visa/ Partner Visa/ South Australia

We write this short but comprehensive blog article to update you about some of the important Australian immigration law changes.

1. 5 Year Temporary Parent Visa Announced 

The Australian Minister for Immigration David Coleman announced the commencement of the Sponsored Parent Temporary Visa (Subclass 870).

The Visa will be available parents and step parents of an Australian Citizen, Permanent Resident holder or eligible New Zealand Citizens.

No balance test will be required for the Subclass 870.

The cost will be $5,000 AUD per parent for a three year visa and $10,000 AUD per parent for a 5 year visa.

A holder of a Subclass 870 will not be able to work as part of the visa conditions.

The sponsor will be required to show financial capacity.

It has been reported that the Sponsored Parents Visa is to start from the 17th April 2019.

15,000 quota has been set for July 2019 to June 2020.

2.Partner Visa Processing Changes

The Migration Amendments (Family Violence and Other Measures) Bill 2016 was passed by the lower house on 28th November 2018.

The Bill is aimed at safeguarding vulnerable family members and married partners from violent sponsors.

The result of the the Bill is that sponsorship applications will have to be approved by DHA before partner visa applications can be lodged.

The changes are expected to delay the already long processing times for partner visa applications.

The changes are expected to come into effect in the next few months.

It may be in a prospective applicant’s interest to lodge before the changes are in effect.

3.South Australia Announcements

The South Australian Government has eased requirements for migration to its state.

Some of these include:

Immigration SA will offer state nomination for the Provisional 489 visa to any applicant who:

  • Is a current or former international student residing in South Australia; AND
  • Has resided continually in South Australia since March 2012 or earlier and continues to reside in South Australia; AND
  • Is currently:
    • working in South Australia in any occupation (does not have to be at a skilled level) for at least the last 3 months (minimum of 40 hours per fortnight); OR
    • studying a course with a minimum duration of one academic year in South Australia.

State nomination may be offered to the international students who are “able to obtain a skills assessment where they can meet the high performing graduate settings, even if they do not have experience. However, the work experience waiver requires a minimum grade point average (GPA) of 6.0”.

The chain migration pathway offers access to occupations on the Supplementary Skilled List, but since its introduction, this required a minimum bachelor’s degree or higher. This bachelor’s degree requirement has now been removed, meaning access to a range of trade occupations that are not on the State Nominated Occupation List is now possible for those with eligible family in South Australia.
Written by the team at RSG Lawyers.

Footnotes are available upon request.

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