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16 | Immigration Atty. Jessie Icao


In some limited circumstances, the Minister for Immigration and Citizenship has the power to grant a visa even if the person has been in Australia on expired visa provided the Minister believes in his own discretion that there is public interest involved and the case falls under the minister’s guideline of being ‘unique and exceptional’. I handled a case where the couple arrived in Australia ten years ago along with two young children. The husband on his own filed a refugee application or protection visa claiming persecution by a union organisation as he was suspected of providing information on union activities to the management. His application was denied by the Department of Immigration & Citizenship (DIAC) and his appeal was likewise refused by the Refugee Review Tribunal. The family did not depart Australia and all those years the parents managed to send their


children to school until they were eighteen years old. After ten years, my assistance was sought as they were arrested by DIAC compliance officer at their residence for having stayed in Australia illegally. I successfully argued to the Minister that the family be granted permanent visa as the children have spent their formative years in Australia – having arrived in the country as minors and at the time of their arrest, they are 18 years old already, outstanding students and the parents have integrated within the Australian society and they have skills back home which are on demand in Australia.


In another case, my client who was in Australia on expired visa was granted permanent residence by the Minister because she was the guardian of an orphan child whose mother died leaving the sister as the only carer of the orphan Australian citizen child. My case of a 65 year old widow was exceptional and unique. She was sponsored on aged dependent relative visa by his family in Australia and when her case was finalised in five years time, she was diagnosed with cancer. Therefore, her application was in jeopardy as she did not pass the health criteria. I raised her case to the Minister after refusal of her application by MRT contending that she passed the medicals when she originally lodged her application. Further, I submitted to the Minister that it would be in the public interest


to grant her permanent residence visa as she became support person of women afflicted with cancer and a volunteer in a cancer clinic. I also argued to the Minister that she was not a burden to the Australian community as she has a private health fund and the fact that it would be difficult to return to the Philippines as all her children are already in Australia.


Under the law, the Minister can substitute a decision which is more favourable to the applicant on public interest grounds provided the applicant has appealed the refusal of DIAC to the Migration Review Tribunal or Refugee Review Tribunal or Administrative Review Tribunal which is also refused. There is no time limit within which to request the Minister to intervene or make a letter of representation. The Minister might personally intervene on a case if there are unique or exceptional circumstances:


• A young Australian child is involved. For example no relative can take care of the child except the applicant and the best interest of the child can be served if the child is looked after by the applicant. • Continuing hardship to the Australian citizen if the applicant will leave Australia. This might be relevant on carer visa application. • Those with exceptional talent or skills of benefit to Australia. • If you have the real threat of being tortured if returned to your


home country.


• Compassionate circumstances taking into consideration the length of time the applicant is in Australia and his/her integration to the Australian community. • Denial of human rights, those subjected to systematic fear but did not amount to persecution under the International Convention for Refugees.


• Application of the relevant legislation leads to unfair or unreasonable result.


The above situations are not exhaustive and the applicant can make representations if she/he believes that there are exceptional circumstances that warrants ministerial intervention. How to request the Minister: First:


Check whether your


application has been denied by the Migration Review Tribunal or Refugee Tribunal or in certain circumstances by the Administrative Appeals Tribunal. Second: Evaluate whether your case is unique or exceptional that warrants personal intervention by the Honourable Minister for Immigration & Citizenship. Third: Write a letter directly to the Minister for Immigration Citizenship, Parliament House, Canberra ACT 2600.


submissions to the Minister that your case is exceptional and it is in the public interest that you will be granted a visa to stay in Australia permanently. Provide proof or evidence or document to


Ang Kalatas | Vol. 2 No. 8 | May 2012 www.kalatas.com.au


Ministerial intervention might let you stay in Australia


back up your claim. For example, in the case of family illegal for 10 years - submit copy of passport where the child were minors when they arrived in Australia; proof of their school attendance and any certificate of commendations and argue that their formative years has been spent in Australia and it will be very difficult to return to the Philippines because of language and cultural barriers or argue that most of their relatives are in Australia. If the parents are skilled persons, submit proof of credentials and certificate of any special skills. Support from community orgnisations or individual might assist the representations.


Make


In your letter attach a copy of your passport and the refusal letter from the Review Tribunal. The good thing with this letter request is that there is no filing fee and not subject to time limit. For those who require all aspects of immigration issues, this writer provides free initial telephone consultation and he can be contacted on 0412 269 439. Jessie Icao is a practising solicitor in New South Wales and registered migration agent since 1993 (MARN 9367993). He is admitted as a lawyer in the Philippines. The information provided is of general nature and cannot be relied in its entirely. I suggest that you consult a registered migration agent or refer to the relevant law.


State Sponsor Under Skilled Migration


Sponsored visa but do not score well over the passmark among those in your nominated occupation, you could be at the bottom of the invitations list and may not be invited at all because invitations will be first issued automatically to the highest ranking EOIs, subject to occupation ceilings.


Atty. Imelda Argel


As you may be aware, a new points test took effect on 1 July 2011. The Department of Immigration and Citizenship (DIAC) has again announced that from 1 July 2012 we should expect changes to the legislation, which will require visa applicants (you) to submit an Expression of Interest (EOI) and receive an invitation before you can apply under Skilled Migration. If the Australian Government does not invite you to apply, then even if you meet the pass mark and all criteria, you may not apply. If your nominated occupation is in Schedule 1, but you would like an automatic invitation to apply, consider applying for state sponsorship so that you will then automatically be given an invitation to apply. This is because if you apply for an Independent or Family


If your nominated occupation is in Schedule 2 of the SOL you will need to apply for State or Territory government sponsorship, even if you have an eligible relative in Australia who is willing and able to sponsor you or who may even live in a designated area. In this case, you must first obtain a State or Territory government sponsorship approval before you lodge your visa application.


To determine whether a particular State or Territory will consider sponsoring you, your occupation must be listed under its State Migration Plan (SMP) or its “off list”, if any.


If so listed, you must research on your employability, living conditions and criteria for sponsorship in the sponsoring State or Territory, to ensure that you are able to satisfy their requirements. It is proposed that the new skilled state sponsored visa that will take effect from 1 July 2012, will allow the visa holder to live and work anywhere in Australia.


The criteria for sponsorship are separate, often more demanding and are in addition to the visa requirements in the following categories: • Financial requirement for settlement


• Minimum IELTS test • Work experience • Particular specialisation within an occupation


• Job offer for particular sponsorships


You can check each State Migration Plan (SMP) through the link from my website, HYPERLINK “http://www.iargel.com.au” www. iargel.com.au. Requirements vary from State to State and their guidelines may change depending on their current needs as at a certain period of time. Some features are: Australian Capital Territory (ACT)- Requires sufficient financial resources to settle in the ACT while seeking employment; has an “off list” nomination which generally favours Canberra residents currently employed in Canberra and overseas residents who have an offer of employment in Canberra from an ACT employer or have a close family member in Canberra. New South Wales (NSW)- Usually requires IELTS score of 7 or 8 per component depending on the nominated occupation; Except for actuary most occupations


require three (3) or five (5) years relevant work experience. It has no Off-list.


Western Australia (WA) – requires sufficient funds to settle in WA for the first three (3) months; has off-list nomination requiring evidence of job prospects


South Australia (SA) – requires sufficient funds to settle and live in SA upon arrival; Requires minimum score of IELTS test above DIAC requirement for most occupations. Has an “off list” nomination but limited to recent SA international graduates.


Victoria (VIC) – requires predetermined financials which increases with more dependents; usually require two (2) to five (5) years of relevant experience depending on nominated occupation; requires an offer of employment if not currently a resident of Victoria. Off-List nominations are not available. Northern Territory (NT) – requires evidence of financial capacity to resettle based on predetermined minimum value of assets; must demonstrate employment prospects.


Queensland (QLD)- requires sufficient funds in cash to cover potential long periods of unemployment not just for settlement. It has no Off-list. This information is of a general


nature and should not be taken as authoritative legal advice for specific cases. Australia has a scheme that requires persons who give immigration assistance to be registered as migration agent. The writer, Atty. Imelda Argel is a practising migration solicitor and a registered migration agent in Sydney, Australia. She is a Solicitor of the Supreme Court of New South Wales, the High Court of Australia, an Attorney at law in the Philippines and in the State of New York, USA. Her Registered Migration Agent no. is 9682957. She is the author of Time- Saving Immigration Practice Solutions (TIPS) on General Skilled Migration (GSM) a publication for


migration agents, the recipient of the inaugural NSW FAWAA (Filipino- Australian Women’s Achievement Award) for her outstanding achievements in corporate practice and entrepreneurship, and the University of the Philippines Alumni Association (NSW Chapter) Achievement Award for law and community service. More information is available at www. iargel.com.au. You can contact her by email at info@iargel.com. au or by fax at (+612) 9699 3210 or by appointment at Suite 41, Ground Floor, 61-89 Buckingham St. SURRY HILLS NSW 2010.


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