The Administrative Review Tribunal (ART) has officially replaced the Administrative Appeals Tribunal (AAT) as of October 14, 2024. This significant change aims to streamline the independent merits review process, making it more efficient and accessible for individuals navigating Australia’s migration system.

Transitioning Your Appeal

If you had a visa refusal and submitted your application for review with the AAT on or before October 13, 2024, there's no need for any action on your part. Your case will automatically transfer to the new Tribunal, and your appeal will continue at the ART until a decision is reached. Should the decision be unfavorable, you may have the option to appeal the ART’s decision in court through judicial review.

It’s crucial to note that applying for judicial review does not automatically extend your bridging visa. Therefore, ensure you lodge a bridging visa application before your current visa expires.

What If You Just Received a Visa Refusal?

Receiving a visa refusal can be disheartening, and it’s understandable to feel confused about your next steps. Depending on your circumstances, you may have the right to appeal the decision. Your visa refusal letter typically outlines whether you have merits review rights.

To appeal a decision by the Department of Home Affairs, visit the Administrative Review Tribunal (ART) website to submit your application. Be mindful of the time limits specified in your refusal letter, as delays can jeopardize your application’s validity. Timeliness is critical when appealing decisions.

Once you’ve lodged your appeal with the ART, you will generally receive a bridging visa, allowing you to remain in Australia while awaiting a decision.

Book an Appointment

Do You Need Help Appealing an Australian Visa Refusal?

If you have had a Student Visa refusal, a Partner Visa refusal, a Training Visa refusal, or any other visa refusal and need assistance to appeal your visa refusal, please contact us.

You can book an appointment online or call us at (+61) 8 8351 9956.

Our team of experienced Immigration Lawyers and Migration Agents looks forward to assisting you with your visa application.

Based in Adelaide, South Australia, we provide Australian immigration advice to people and businesses from all over the world.

Sources:

https://www.art.gov.au/

https://www.homeaffairs.gov.au/

In a historic decision, the High Court recently published its unanimous ruling on indefinite immigration detention. The decision was unanimous, by seven high court judges. The case is NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 (28 November 2023).

The High Court ruled that it is unlawful to detain a person indefinitely, in circumstances where there are no real prospects of removing them from Australia. The case involved a stateless individual to whom Australia owed protection, being not a citizen of any country, and with no available country willing to resettle him.

The court examined sections 189(1) and 196(1) of the Migration Act, finding that they exceeded the Commonwealth's power.

The High Court emphasized that the Executive lacks the authority to impose criminal punishment, which falls under the jurisdiction of the Australian courts. Consequently, the court deemed indefinite detention as a form of punishment beyond the government's constitutional power, making it unlawful.

What are the facts of this case? 

The applicant is a Rohyingya Muslim who arrived in Australia by boat in 2012 and was granted a bridging visa in 2014. Later found guilty of a sexual offense against a child, he was sentenced to 5 years imprisonment. 

During this time, he applied for a Protection visa, and it was found that he is a person Australia owes protection obligations because he has a well-founded fear of persecution. Ultimately the protection visa wasn't granted because of his criminal conviction.  

After being released on parole in 2018, he was taken into immigration detention. In April 2023, he appealed to the High Court arguing his continuing detention was not authorised. 

On 30 May 2023, both parties in this case agreed to 2 very important facts:  

1.  The applicant cannot be removed from Australia.

2.  There is no real prospect of the applicant being removed from Australia in the reasonably foreseeable future.  

The High Court decided that the applicant's detention has been unlawful since 30 May 2023, and ordered his release. 

The applicant is a stateless person, to whom Australia owes protection. He is not a citizen of any country, and no country will resettle him. 

Why is it unlawful? 

According to the Australian Constitution, an unlawful non-citizen can only be kept in immigration detention for a legitimate, non-punitive purpose.  

Indefinitely detaining those who cannot be legally removed from Australia, was said to be punitive (i.e. punishment) rather than for a legitimate purpose.  

The Executive (government departments and ministers) do not have the power to impose criminal punishment. Instead that power rests with the Australian courts. 

The High Court decided that indefinite detention is a form of punishment that goes beyond the government's power and is therefore unlawful.  

What now? 

The Federal Government reacted very quickly in response to this significant decision. Immigration Minister Andrew Giles quickly introduced a Bill, which passed, which imposes strict conditions on Bridging visas granted to those who have been released.  This includes requiring them to always wear a monitoring device, follow a curfew, and report regularly.

As the Federal Government moves to enforce these new laws, legal challenges are anticipated. The High Court is expected to consider and assess the constitutionality of these laws, setting the stage for potential updates and developments in the near future.

Sources:

https://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2023/37.html

How can Work Visa Lawyers help?

Our team of experienced Immigration Lawyers and Migration Agents look forward to assisting you with your potential visa application(s).

Based in Adelaide, South Australia, we provide Australian Immigration advice to people and businesses from all over the world.

You can book an appointment online or call us at (+61) 8 8351 9956.

Australian citizenship can be acquired through various circumstances related to birth. In this blog, we'll explore the three types of citizenship by birth.

Child Born in Australia with at Least One Parent Holding Australian Citizenship

If a child is born in Australia with at least one parent holding Australian citizenship, the child automatically becomes an Australian citizen.

Child Born Outside Australia with at Least One Parent Holding Australian Citizenship

Children born outside Australia with at least one parent holding Australian citizenship them they can apply for Australian citizenship through their parents.

Child Born in Australia – Ordinarily Resident and the 10-Year Rule

If a child is born in Australia and has two parents with neither of whom are Australian Citizens or Permanent Residents, and the child has been ordinarily resident in Australia throughout the first 10 years from your birth Australia as its primary residence up until the age of 10, the Child automatically becomes an Australian Citizen.

Recent case and flexibility by the Australian government

Recent legal developments, such as the case of Minister for Immigration, Citizenship and Multicultural Affairs v Sidhu by his litigation representative Kaur [2023] FCAFC 133, have brought about flexibility by the Full Federal court in interpreting the term "ordinarily resident."

This broader interpretation of ordinarily resident was more generous on how much time the child could be outside of Australia and still get Australian citizenship. In Sidhu, the child’s parents lived and worked in Australia while the child for some years lived with the grandparents in India. The child was still able to become an Australian Citizen on its 10th birthday.

Understanding the pathways to Australian citizenship by birth is crucial for individuals and families. Recent legal developments highlight the importance of flexibility in interpreting residency requirements, providing opportunities for those whose circumstances involve periods of living outside. If you need any assistance, please book an appointment. We are happy to help you.

We take a break from providing you with the latest immigration laws and visa news as we have some very exciting news about us.

We are very excited and incredibly humbled to have been selected as a finalist in the Boutique Law Firm of the Year Award category of the Australian Law Awards 2023 and that our founder and Principal Lawyer, Chris Johnston has been recognised as a finalist in the Mentor of the Year award.

Boutique Law Firm of the Year

As a boutique law firm based in little old Adelaide, in South Australia and to be shortlisted as a finalist in 2 categories for a national award such as this is a remarkable achievement. The Australian Law Awards is highly regarded across Australia’s legal sector, so we are extremely proud of this recognition.

While it is tempting to think that we are punching above our weight, we remind ourselves that we are the biggest immigration law firm in South Australia. We do believe that specialising in immigration law allows us to provide specialist expertise to our clients to match national big firms while keeping our boutique small practice attitude and offer a personalised approach to our clients and their matters.

For us being named as a finalist is a recognition of our hard work and our commitment to providing ethical, professional and excellent service to our clients.

Mentor of the YearA lot of people know about Australian migration law or about Australian visas by watching Chris in our videos on YouTube and recently in TikTok or by accessing our websites for our articles. But in addition to Chris sharing his knowledge and experience through YouTube or our website, Chris is also sharing his knowledge and time and guiding law graduates and Registered Migration Agents as a mentor.

It is Chris’ belief that mentoring the new professionals is a way to contribute to the advancement of the profession.

Chris was able to establish and grow Work Visa Lawyers by having the invaluable guidance of his mentors and sees the importance of mentoring not just to help up and coming law professionals but also for him to grow and to learn from his peers and develop as a legal professional.

Chris was mentored by some great people including Lawyer Joanna Richardson and RMA Brian Jones.

We take this opportunity to thank all our clients, for their trust and for referring us on to their family, friends and contacts and for engaging with us through our various social media platforms.

Awards night will be on  11 August 2023 in Sydney and whether we win or not, we are celebrating nevertheless and giving ourselves a pat on the back.

This article is updated regularly. Last updated: Tuesday 9th September 2024

The Genuine Temporary Entrant (GTE) is a requirement almost all migrants will have to pass in the process of immigrating to Australia. Failing the GTE requirement can result in a devastating visa refusal. Here is what you need to know about the GTE criteria so you don’t receive a visa refusal notification.

1. What Is The GTE?
2. How To Meet The GTE Criterion?
   1. What Factors Do The DoHA Look At? 
   2. Your Immigration History? 
   3. If You Are A Student
   4. Supporting Your Claims
3. Does Every Visa Have The GTE Criterion? 

What Is The GTE?

GTE is short for Genuine Temporary Entrant. Based on the documents provided by the applicant, the Department of Home Affairs (DHA) will determine whether the applicant has a true purpose of temporary stay and the intention to stay in Australia for the time being. 

The DHA will consider the applicant's background in their home country, the immigration history, the incentive to stay in Australia or return home. If you do receive a GTE visa refusal you may have the option to appeal and review the decision.

How to Meet GTE Criterion?

What Factors Do the DoHA Look At?

DoHA looks at factors which might make you wish to not return to your home country:

• Political or civil unrest
• Military service commitments
• Your financial circumstances in your home country

The DoHA will also look at factors which would encourage you to return home such as, if you have a job back home, and have approved study leave. Another example would be if you have a business or personal assets in your home country, or close family members this may also be considered.

Your Immigration History

DoHA checks your immigration history as well:

• If you have spent a long time in Australia, DoHA may consider that you are seeking to extend your stay in Australia and work here.

• If you have had previous visa refusals/cancellations

• Any previous issues with visa compliance - for example not completing studies on previous student visas, working in excess of work conditions, overstaying your visa

If You Are A Student

Supporting Your Claims

Evidence documents to support the facts you listed in your statement should be provided at the time of application as well.

For example, if the applicant mentions that his future goal is to return home and open a restaurant, he can explain it in his GTE and prepare a corresponding business plan for opening a restaurant. However, if an applicant only said in his GTE statement, “I applied because I like it very much.” Such claim is not convincing and will not meet the GTE requirements.

Below is a real example of a refusal that a client received before consulting with Work Visa Lawyers.

Please note that it is common for a case officer to call you and ask you questions about your reasons for study in Australia. You may not receive any notice of this, so it is very important that you are prepared to discuss your case.

 Does Every Visa Have the GTE Criterion?

In short, no, but the majority of visas do use GTE requirements. The GTE is important because it applies to all Visitor Visas and some of the Temporary Visas. To put this in perspective, the Australian Bureau of Statistics recorded 780,500 Visitor visa movements in September 2018. Keeping the same amount of movements per month, in a year there would be 9,366,000 Visitor Visa movements. This means that nearly 10 million people would have had to pass the GTE requirements.

Some of the most common Temporary Visas that have the GTE criterion are:

• Student visa subclass 500  Recently released migration system review report has suggested that the GTE criteria for Student visa subclass 500 applications be replaced with something called Genuine student test, which will be focused on assessing whether the student has genuine studying intentions as compared to GTE where focus is on assessing whether the student is coming to Australia on a temporary basis and will not live here permanently.
• Visitor visa subclass 600
• Temporary work visa subclass 400
• Temporary Activity​ subclass 408
• ​Training subclass 407
• Work and Holiday visa subclass 462
• Working holiday subclass 417
• Medical treatment subclass 602
• Short-term stream subclass 482

It is important to remember that the GTE is often not the only criteria you will have to meet. For example, the Short-term stream subclass 482 which replaced the popular subclass 457 recently, has many requirements including IELTS and other skills assessments.

It is also important to show a range of documents to demonstrate an incentive to return home.
These could include:
- Employment to return to in home country.
- Close family ties and responsibilities in the home country - for example, if you are married and your partner is staying in home country during the visit, this is a positive GTE factor.
- Ownership of property or businesses in home country

Do you need help with an Australian visa application?

Lawyers and Registered Migration Agents from Work Visa Lawyers have rich experience in drafting GTE statements. If you need any assistance, please feel free to contact our team.

At Work Visa Lawyers we are experienced in assisting applicants in all matters relating to Australian visa applications, including state sponsorship applications. Our areas of expertise include Skilled Migration visas, Business Skills Migration visas, Employer Sponsored Work Visas, Partner and other Family Migration visas as well as Migration Review Tribunal, Judicial Review and Ministerial Intervention.

If you require further information regarding your Australia visa options you can contact us through:

(08) 8351 9956

or   This email address is being protected from spambots. You need JavaScript enabled to view it.

Sources

http://www.abs.gov.au/ausstats/[email protected]/mf/3401.0/

https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/student-590/genuine-temporary-entrant

https://www.workvisalawyers.com.au/news/all/australian-visa-refusal-notification-options-for-the-appeal-review-process-tribunal-ministerial-review.html

https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/student-500

https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/visitor-600

https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/temporary-work-400

https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/temporary-activity-408

https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/training-407

https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/work-holiday-462

https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/work-holiday-417

https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/temporary-skill-shortage-482

https://www.workvisalawyers.com.au/news/all/top-10-facts-you-need-to-know-about-the-new-482-visa-1.html#Skills

https://www.workvisalawyers.com.au/news/all/ielts-now-offering-computer-delivered-english-tests-for-visa-applicants-in-australia.html

https://www.workvisalawyers.com.au/news/all/skills-assessments-occupation-lists-for-australian-tss-482-and-employer-sponsored-permanent-resident-visas.html