Time bombs in migration law – the insurance of Plan B

Here are the time bombs:

For many protection visa applicants in the pipeline – the day of reckoning will come. Secondly, protection visa holders visiting the country from which Australia granted protection are running a risk.

For student visa holders – the time to stand up and apply for a non-student visa will come. Secondly, serial student visa holders risk failing the Genuine Temporary Entrant test on the next student visa application.

A student picking a bad occupation to aim for, like cookery, may lead to nowhere.

Those who have gained a visa through fraud will have their whole migration history re-examined when they need to apply for another visa (or citizenship). 

A dob-in person can lie in wait, with a personal blow up with the visa holder triggering a secret report to Immigration with resultant visa cancellation.

For business visa holders, the grant of the visa may only be the beginning, they must generally go about to set up a business or investment activity in Australia. Those granted subclass 132 visas must go about properly engaging in business activity in Australia or face visa cancellation.

Australians who had applied for a foreign passport before 2002 may find they are not actually Australian citizens.

Second stage partner visa applicants are finding more and more partners are fighting court claims of domestic violence

Filipino wives who were previously married are finding some husbands in Australia bring annulment proceedings in the Family Court. 

In all of the above everyone needs a Plan B. A lot of migration advisors are soft on their clients about proper skilling up and gaining top English qualifications.

Protection Visa Applicants

A protection visa application may lull an applicant into a false sense of security. These applications often take a long time to wind their way through the system and a client may think the time of reckoning is too far away to be worried about it. 

But the day of reckoning will come and all too often clients have poorly prepared themselves for that day. Often one finds that the client even after years in Australia, has poor English and has done little to skill up. Every protection visa applicant ought to set up a pathway to get the skills to meet the skill assessment requirements for an occupation on the Medium and Longterm Strategic Skills List, or at the very least the Shortterm Skilled Occupation List or as a last resort, the Regional Occupations list. And having a long term employer who may sponsor the applicant is a good backup.

All people in progression to permanent residence need to do an English test every year to see where they are at.

For many many protection visa applicants, their case is either too complex or basically too weak to succeed especially those based on complementary protection.

Looking at those who did get protection visas, many return to their country of origin for a visit, to some extent, proving they did not need protection in the first place, some go back for arranged marriages for example or just to visit relatives. If they ever have problems in the future like a criminal conviction, a non-refoulement claim will be badly diluted. If one holds protection visa, the practical advice is, never return to the country of origin until one has Australian citizenship!

Student visas

What I call the perennial and serial student visa applicant/holder often has a similar approach to protection visa applicants, thinking that the day of reckoning is a Sunday too far away.

They often aimlessly drift from course to course and spend time in low level occupations (an example is packing doughnuts). Many do not even have the English skills to meet competent English. I have seen most unfortunate cases where the partner makes no effort to learn English with the result the home environment is an English-free zone, thus setting the student back as far as English is concerned.  There is in reality no excuse for a student not to achieve superior English and thereby gain 20 points for a skilled visa.

Every time I hear a student doing a Diploma in Leadership, I shudder, just where is that course heading (generally nowhere). I recently had to advise on a case where the student had a biological sciences degree from a third world country, some how this person was  advised to do cookery, the obvious occupation for this person is nursing, she was interested in and indeed was keen to study medicine, nursing is a good pathway to medicine, the  person will be able to work in a good paying job while studying medicine and may even be able to fund herself.

Again, in all cases, students need to study in a course that will lead to a qualification on the Medium and Longterm Strategic Skills List, nothing less. Generally all courses should complement what the student has studied back home.

One can position oneself to beat the Genuine Temporary Entrant test. Always go back home for visits wherever possible, have an offer of employment in the home country, maintain all possible links with the home country (like memberships of any clubs or organisations), if possible do on-line work for employers in the home country, get any skill recognition in the home country etc. It must be remembered that students cannot call Australia home.

Visas gained through fraud

The day of reckoning for these persons is when they apply for a Resident Return Visa or citizenship. At this point Immigration will check out the applicant’s whole history. Immigration has a Facial Image Comparison (FIC) unit which look at photographs on all other documents. This will pick if someone else did the English test other than the applicant (eg see Janghorbani (Migration) [2022] AATA 656 (22 March 2022, searchable at Austlii). Problems here will lead to visa cancellation. Any dubious documents will be re-examined at any future application stage.

Those with suspect partner relationships will see those issues examined including checking up what address was put down at the immigration entry cards (including matching with other persons, like girlfriends) and Facebook and Dr Google often provide excellent material for Immigration to investigate.  Of course those with suspect relationships  should avoid FaceTime, WhatsApp Wechat etc etc

Best therefore, is that anyone with a ‘suspect’ visa past should only apply for a new visa in an emergency or hold off as long as possible from doing so.

The dob-in

This is becoming more regular, yielding negative outcomes for visa holders. Immigration goes to a lot of lengths to protect the identity of the dobber. If one does have a shady visa history then one has to be a person who never offends anyone and never gives cause for anyone to be angry or upset with the person. Possibly also lie low. The walls have ears. 

Males causing family violence often see dob-in material as a means of revenge or even protection.

One case I had to advise on, was a female who got a partner visa but went back to visit the father of her offspring from the earlier relationship, someone suggested she was resuming or rekindling her relationship with the father of her children. All this happened while she was offshore, visa cancellation occurred and she had no merit review. Best advice in her case would have been, don’t visit the father of her children until she has Australian citizenship. In her case the visas of the children were cancelled as well!!

Business visa holders

A whole paper could be written on this topic. Subclass 132 visa holders in particular must have a proper implemented business plan involving business activity in Australia, otherwise the visa will be cancelled. Many drift along and when the two year survey comes along they have done very little and often have done little engagement with Australia and sometimes barely speak English. The obvious thing for these persons, is to adapt the business they have back home and set it up here in Australia. Even an importing business providing jobs in Australia will suffice.

Gaining foreign citizenships

A complex question but those Australian citizens (including Australian born) who gained a foreign citizenship before 2002 may find they have not been Australians for over a couple of decades, a resolvable problem but complex! Before 2002 Australia had a prohibition on dual citizenship. Those applying for Irish citizenship via a grandfather had this problem.

Fighting court claims of family violence

More and more people are not rolling over on court family violence claims. The result is a messy court hearing costing a lot of money where sometimes the Australian partner wins.

Filipino wives who were previously married

The Philippines still prohibits divorce although there is a bill before congress on this issue.

Many Australians find that their Filipino wives were married in the past. This means the marriage to the Australian can be annulled (eg, see : COLVIN & SAILOR [2020] FamCA 244)

If the marriage is annulled it means the Filipino wife cannot obtain a permanent visa via the family violence pathway.

For the Filipino wife, the best course is to insist on coming to Australia on some other visa first and then getting a divorce in Australia for the foreign marriage, which can be done in the Family Court of Australia. The subsequent marriage in Australia would then be legal.

Again wives in these circumstances also need the insurance of learning English and developing a work skill for Plan B.

There are many more time bombs in migration law, these are just a few of them. I’ll look at other time bombs in a future blog.