Schedule 1 Criteria
TABLE OF CONTENTS
Introduction
Check List Using The Regulations As A Template eg - Spouse Visa
Get Enough Sleep
Visa Application And Associated Costs
Preserving Records
Record Keeping And Management - How Long Do Documents Have To Be Kept?
Initial Requirements Regarding Accepting A Retainer
Failure Of Proper File Management Can Lead To Suspension As A Migration Agent
Interpreters
Confidentiality & Notifying The Client Of Complaint Procedure
Give Your Client A Copy Of Everything
Give Your Client The Bad News Immediately
Take Care While On Holidays
Clients & English
Check Special Requirements For Offshore Visas With The Embassy's Or Consulate's Website
Don't Accept Immigration's Assertion That Decisions Have Been Made Properly
Have No Fear Of Appeals
Never Advise Your Client To Make Life Changing Decisions Prior To The Grant Of A Visa & Trust Your Instincts
Before You Set The Fee With Your Client And Before You File A Visa Application
Oral Instructions
What Can Go Wrong If You Don't Record Your Mail Properly
Prepare Your Client For The Oath
Ideas For Chronologies For Client Files
Immigration Goes Into Hibernation On 30 June Each Year
Australia Closes Down Between Christmas & New Year
Have An Industrial Strength Office Set Up At The Office And At Home
What Is A Permanent Residence Visa?
Practice Together Or Practice In Groups
A Proper Email Account And Email Management
Undercharging And Undercutting On Fees
Positioning And Pathways And Fees (Putting All One's Eggs In One Basket)
Email & Fax Communication & Errors With Credit Cards Emerge As Troubling Issues
Preparing A Client For Merit Review Hearings Or Interviews With DIBP
Accountants And Migration Law
Passport
Berenguel - Sometimes Time Of Application Criteria Can Be Met At Time Of Decision
Bare Faced Liars & The Fraudsters
Everyone's Doing It
Bridging Visas
Visas Remain Current Until Midnight
Immigration Closes At 4pm
Looking After Secondary Visa Holders In A Visa Cancellation Process
Applying As A Secondary Visa Applicant Onshore When The Primary Visa Applicant Is Offshore
Being Illegal
Essential Prerequisites For A Ministerial Discretion Application
Last Lunge Applications
State And Territory Sponsorship
Addresses
Believing The Client
Follow Up
Make Peace With The Tax Office
No Obligation On Immigration To Chase Up Information Or Documents From Migration Agents Or Lawyers Representing A Client
Errors In Visa Applications
Spouse Visas - Unexplained Large Deposits of Money
Managing No. 8503 On Tourist Visas
Medical Consent
Statutory Declarations
Merit Review
Tax Deductibility of Migration Advice
LEGENDcom
Dates On Documents And Names On Documents
Breaking Up Is Hard To Do
Take A Statement
Case Management Software
Work Rights
Student
Check All Past Visa Applications
Revealing Convictions
Visa Holders Being On Their Best Behaviour
Email Communication With Immigration - Delete All Strings
No Without Prejudice Conversations With Immigration
Accounts Managements
What Is A Secondary Visa?
Identify Australian Citizens Who Support An Applicant
Communications
Schedule 1 Criteria
Second Thing To Do On Starting A File - Download The Relevant Part Of The Law
First Thing To Do When Starting Any File - Identify Any 'Rights Destroying' Deadlines
Lodging Paper Applications
Social Media & Smart Phones
References
Disputes About Parentage And Children
Helping People Pass The English Tests
Managing Emails
What Is The Pomodoro Technique?
Immigration Telephones Client
When Is A Visa Application Made In Australia
Apply For A Visa In Australia
No Visa Application Is An Island
The Hammock Principle
No matter what visa is applied for, (even a bridging visa) it is always essential to check the Schedule 1 criteria afresh to determine if a valid application can be made. Changes to the Schedule 1 criteria happen all the time and are often just a one line entry in a batch of amending regulations. Such changes can easily be missed so one must never rely on memory for such matters.
Recapping here is the law on this point, It is s 46 of the Migration Act which sets up the criteria to determine if a valid visa application is made. S 46 as relevant states :
[46] (1) Subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if:
(a) it is for a visa of a class specified in the application; and
(b) it satisfies the criteria and requirements prescribed under this section; and
(ba) subject to the regulations providing otherwise, any visa application charge that the regulations require to be paid at the time when the application is made, has been paid; and
(c) any fees payable in respect of it under the regulations have been paid; and
Then Reg 2.07 states :
Reg 2.07 Application for visa – general
[2.07] (1) For ss 45 and 46 of the Act…, if an application is required for a particular class of visa:
(a) the relevant item of Schedule 1 sets out the approved form (if any) to be completed by an applicant; and
(b) regulation 2.12C and the relevant item of Schedule 1 set out:
(i) the visa application charge (if any) payable in relation to an application; and
(ii) the components that may be applicable to a particular application for the visa; and
(c) the relevant item of Schedule 1 sets out other matters relating to the application.
Note: An item of Schedule 1 may provide that the form, place or manner for making an application is specified by the Minister in a legislative instrument made for the item under subregulation (5).
[[2.07](2) omitted …
[2.07] (3) An applicant must complete an approved form in accordance with any directions on it.
[2.07] (4) An application for a visa that is made using an approved form is not a valid application if the applicant does not set out his or her residential address:
(a) in the form; or
(b) in a separate document that accompanies the application.
The consequences of all of the above are that a valid visa application has to be considered by the delegate but an invalid visa application MUST NOT BE CONSIDERED!
This is set out in s 47 which reads:
Section 47 Consideration of valid visa application
[see Direction 64 ― priority for considering and disposing of applications for specified visas made by persons who reside, or have resided, in an Ebola Virus Disease affected country – LEGEND note]
[47] (1) The Minister is to consider a valid application for a visa.
[47] (2) The requirement to consider an application for a visa continues until:
(a) the application is withdrawn; or
(b) the Minister grants or refuses to grant the visa; or
(c) the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration).
[47] (3) To avoid doubt, the Minister is not to consider an application that is not a valid application.
[47] (4) To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa.
All of these provisions could be regarded as ‘boring’ machinery provisions but all of these sections have to be read in full. At some stage set aside some time to read ss 45 to 47 of the Act in full.
Here’s one example of a schedule 1 criteria which prevents a further visa application is some circumstances – ONCE CANCELLED NO OTHER BRIDGING VISA E CAN BE GRANTED. To create a real regulatory noose, the Schedule 1 criteria for the BVE states once a BVE is cancelled based Reg 2.43(1)(p) & (q) no further BVE can be applied for – see paragraph 1305(3)(g) of Schedule 1:
“(g) The applicant has not previously held a visa that has been cancelled on a ground specified in paragraph 2.43(1)(p) or (q).”
Reg 2.43(1)(p) or (q) refer to a BVE being cancelled after a person has been convicted of an offence or after a person has been arrested!