It is often the case where a visa application is lodged with the Department of Immigration under one set of rules to then be subsequently assessed by something completely different. Keeping up with the progress of a visa application can be daunting task. The key is knowing which rules apply to your visa application as this is an important step in securing a fast and positive outcome.
The challenge in applying for an Australian visa is the complexity of the process. Rules and regulations change on daily basis and frequency of changes in migration requirements is second to taxation law. This makes Australian immigration one of the most complicated frameworks of rules and regulations in the world.
Recent example of changes include changes implemented on 5 December 2017, where Migration Legislation Amendment (2017 Measures No.4) was disallowed in the Senate.
Rules Prior to 5 December:
Migration Legislation Amendment (2017 Measures No.4) made certain visa applications subjected to the following requirements:
Health debts and health insurance arrangements
In order for the visa to be granted, an applicant must not have public health debts and make adequate health insurance arrangements.
Integrity, identity, and community protection amendments - PIC 4020
PIC (“Public Interest Criteria”) 4020 enables refusal of a visa if an applicant provides a bogus document or information that is false or misleading in relation to their application, or if the Minister is not satisfied of an applicant’s identity.
If PIC 4020 is part of the criteria for the particular visa an applicant is expected to satisfy this criteria for grant of the visa. The visa may be refused and a ten year ban would be imposed essentially preventing an applicant from lodging another visa. Under this instrument there is no waiver available for the identity requirement or the ten year non-grant period.
Under the Australian Parliamentary rules, many Acts of Parliament delegate to the executive government the power to make detailed rules and regulations that supplement the parent Act (primary legislation) and have the same legal force. Such rules and regulations are not passed directly by both Houses of the Parliament, as bills are, but either House may veto (or disallow) them.
Framework for the standard disallowance regime is as follows:
within 15 sitting days after tabling a senator or member of the House of Representatives may give notice of a motion to disallow the instrument (in whole or in part) ;
if the motion is agreed to, the instrument is disallowed and it then ceases to have effect;
if a notice of motion to disallow the instrument has not been resolved or withdrawn within 15 sitting days after having been given, the instrument is deemed to have been disallowed and it ceases to have effect;
disallowance has the effect of repealing the instrument – if the instrument repealed all or part of an earlier instrument then disallowance also has the effect of reviving that part of the earlier instrument;
an instrument 'the same in substance' cannot be made again:
within 7 days after tabling (or, if the instrument has not been tabled, within 7 days after the last day on which it could have been tabled) (unless both Houses approve);
while it is subject to an unresolved notice of disallowance; and
within 6 months after being disallowed (without the approval of the House that disallowed the regulation).
Significance of this event:
As mentioned earlier, the above Instrument was disallowed in the Senate on 5 December 2017.
This means that any applications lodged and approved after 5 December will not be subject the requirements in this Instrument.
The above process makes assessment of a visa application particularly difficult as two applications that may appear the same on face value may nonetheless be subjected two completely different regulatory requirements.
A professional assessment of your circumstances is always recommended given that each application is assessed based on personal circumstances. Migration professionals are trained to tailor an appropriate strategy and this will in turn increase your changes in securing a positive outcome of your application.
SCA Connect provides free online visa assessments for prospective applicants and we can assist you in navigating through the complex framework that is Australian Immigration. To get in touch with one of our consultants click here
Disclaimer: The information provided herein is of a general nature only and does not constitute immigration advice. For more detailed and case specific information or advice, please contact SCA Connect.