Direction No. 83 – Order for considering and disposing of visa applications under s91 of the Migration Act 1958
Direction No. 83, which should be read with Direction No. 80, commenced on 21 Dec 2018 and includes the following provisions:
7. Considering and disposing of applications
(1) Except as otherwise instructed by this Direction and Direction 80 – order for considering and disposing of Family visa applications, delegates should process applications for Family visas in the order in which they are received by the Department.
(2) To ensure fairness and equity in the processing of parent visa applications, the principle of processing applications for Family visas in the order in which they are received by the Department is to be departed from in the following circumstances:
(a) if before lodging a Contributory Parent (classes CA and Class UT) or Contributory Aged Parent (classes DG and UU) visa application the applicant had an unfinalised Parent (Class AX) or Aged Parent (Class BP) visa application, then the date of lodgement of the Contributory Parent or Contributory Aged Parent visa application should be deemed to be the date of lodgement of the unfinalised Parent or Aged Parent visa application.
(b) if the applicant is a holder of a Contributory Parent (Temporary) (class UT) visa or a Contributory Aged Parent (Temporary) (class UU) visa, then the lodgement date for the permanent Contributory Parent (class CA) or permanent Contributory Aged Parent (class DG) visa application should be deemed to be the date of lodgement of the application of the temporary visa.
(c) Pathway visa applications are to be treated separately from other applications for the Parent (subclass 103) visa and Contributory Parent (subclass 143) visa. In addition, there is to be a queue of pathway visa applications that relate to Subclass 103 and a separate queue of pathway visa applications that relate to Subclass 143. These queues are to be processed independently of one another in accordance with the directions in section 10, taking into consideration the number of places allocated to eligible retirees within the annual parent program.
8. General order of precedence
(1) Except for Other Family visa applications and Pathway visa applications the order of precedence for Family visa applications is:
(a) those applications where the Minister has exercised powers of intervention under sections 351 or 417 of the Act in the order that those powers have been exercised; then
(b) all other applications in queue date order, commencing with the application with the earliest queue date, to the extent that it is reasonably practicable to assess applications in that order.
(2) Those applications that have been remitted to the Department following review by a merits review tribunal or a court, will be assigned a queue date according to departmental policy and considered in queue date order under section 8(1)(b).
9. Order of precedence for Other Family visa applications
The order of precedence for Other Family visa applications is:
(a) those applications where the Minister has exercised powers of intervention under sections 351 or 417 of the Act in the order that those powers have been exercised; then
(b) all other applications in queue date order, commencing with the application with the earliest queue date, to the extent that it is reasonably practicable to assess those applications in that order.
10. Order of precedence for Pathway visa applications
(1) The order of precedence for Pathway visa applications is:
(a) those applications where the Minister has exercised powers of intervention under sections 351 or 417 of the Act in the order that those powers have been exercised; then
(b) all other applications, with priority being allocated, as far as is reasonably practicable, on the basis of the total length of time that the person has been present in Australia subsequent to the first grant of an Investor Retirement (subclass 405) visa or a Retirement (subclass 410) visa. Applicants who have spent the most time in Australia at time of decision to grant the visa should get the highest priority.
(2) Those applications that have been remitted to the Department following review by a merits review tribunal or a court will be assigned priority based the length of time the applicant has spent in Australia as outlined in section 10(1)(b).
11. Queue date
(1) Delegates are to have regard to any unreasonable delay in finalising a visa application arising from processing delays or review proceedings and may backdate the queue date to mitigate the unreasonable delay. However, the queue date is intended to provide a fair and objective standard for prioritising finalisations, and backdating needs to be clearly justified.
12. Notification to applicants of effect of not meeting outstanding requirements
(1) Orderly management of the Migration Program requires that the reaching of a cap (that is, the number of visa grants specified in a section 85 determination) should not be unduly deferred due to individual applicants being unable to meet outstanding requirements such as:
(a) obtaining health or character clearances;
(b) meeting other requirements (eg sponsorship renewal) in some cases; or
(c) having an assurance of support.
(2) Where a new section 85 determination has been or is likely to be made, delegates should consider the appropriateness of visa applicants who have not met outstanding requirements being informed of matters such as:
(a) an appropriate time frame within which the outstanding requirements should be fulfilled by the applicant, having regard to the likelihood that a section 85 cap will come into effect within a certain broad time frame; and
(b) the possible consequences of the applicant’s inability to meet the outstanding requirements within that time frame, including that the application may again be affected by section 86 of the Act.
Disclaimer: the above is a mere reproduction of a direction. The views there expressed might not reflect the views of the Department, the AAT or the courts. The law or policies might have changed between the writing and reading of this article. The author of this article and Migration Law Updates disclaim any liability for any action (or omission) on their part based on any information provided (or not provided) in this article and are under no obligation to keep the general public nor practitioners informed about the matters discussed in this article or any other matters, or any future changes to any of those matters. It is the responsibility of each practitioner to obtain access to primary sources of law and policy by themselves and to carry out their own research and come to their own conclusions on legislation, case law, policies and more. This article is not intended for the general public.
Sergio Zanotti Stagliorio is a Registered Migration Agent (MARN 1461003). He is the owner of Target Migration in Sydney. He can be reached at sergio@targetmigration.com.au