• Ross (Ruslan) Ahmadzai MARN 1171402

Keeping up with your visa application

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.

Disallowance Process:

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 sit