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Chua Tan Associates General Practice Law Firm with Law Institute of Victoria Accredited Immigration Law Specialists & Accredited Mediators.

Our practice areas include immigration, property, commercial, criminal & litigation. We speak Mandarin, Cantonese and English.

DEEMED TO BE BORN IN AUSTRALIA FOR CITIZENSHIP PURPOSES? NOT NECESSARILY. A recent Full Court decision highlights how im...
01/10/2026

DEEMED TO BE BORN IN AUSTRALIA FOR CITIZENSHIP PURPOSES? NOT NECESSARILY.

A recent Full Court decision highlights how important the wording of citizenship legislation can be when a person’s circumstances do not fit neatly into the usual pathway.

In Deyanti v Minister for Immigration and Citizenship [2026] FCAFC 126 (23 September 2026), the appellant had been found abandoned in Australia as a child.

She relied on the former Australian Citizenship Act 1948, which provided that a person found abandoned in Australia as a child was deemed to have been born in Australia “unless and until the contrary is proved”.

The issue was what that qualification meant where there was evidence that the person had in fact been born overseas.

The Full Court considered the statutory language and the evidence concerning the appellant’s Indonesian birthplace. It held that evidence that she was born outside Australia was sufficient to displace the statutory deeming provision.

The appeal was dismissed with costs.

The case is a reminder that citizenship questions can turn on statutory interpretation and the evidence available, particularly where a person’s history and place of birth are complicated.

Australian citizenship should not always be assumed simply from the circumstances in which a person came to, or was found in, Australia.

CAN A TRIBUNAL ASSUME THAT A MARRIED COUPLE WOULD RETURN TOGETHER?A recent Federal Court case raises an interesting ques...
29/09/2026

CAN A TRIBUNAL ASSUME THAT A MARRIED COUPLE WOULD RETURN TOGETHER?

A recent Federal Court case raises an interesting question about how an applicant’s individual circumstances should be assessed under the former Genuine Temporary Entrant, or GTE, requirement.

In Farizal v Minister for Immigration and Citizenship [2026] FedCFamC2G 1824 (23 September 2026), the applicant was a Malaysian citizen who wanted to study nursing in Australia.

Her husband had a pending protection visa application and could not safely return to Malaysia.

The Tribunal accepted that she genuinely wanted to study nursing.

However, it was not satisfied that she intended to stay in Australia temporarily.

One of the Tribunal’s concerns was whether she would genuinely return to Malaysia if her husband remained unable to return with her.

The applicant’s evidence was that she would return to Malaysia to be with her extended family, regardless of whether her husband could return with her.

The Court found that the Tribunal had gone beyond relying on ordinary human experience and had made an assumption about what a married couple would ordinarily do, without sufficient evidentiary basis.

The Court also noted evidence concerning the applicant’s mother’s cancer diagnosis in Malaysia, which the Tribunal had not properly engaged with.

The Court found jurisdictional error and remitted the matter to the Tribunal for reconsideration.

THE PRACTICAL POINT?

An applicant’s intentions should be assessed based on their actual circumstances and evidence, not simply on what might ordinarily be expected.

Where circumstances are unusual, the evidence should clearly explain why the applicant’s intentions may differ.

Farizal concerned the former GTE requirement, but the broader lesson remains important: the applicant’s actual circumstances and evidence matter.

“WE’RE MARRIED. WHY CAN’T I SPONSOR MY PARTNER?”A couple came to me with what seemed like a straightforward question. Th...
29/09/2026

“WE’RE MARRIED. WHY CAN’T I SPONSOR MY PARTNER?”

A couple came to me with what seemed like a straightforward question.

They were married. Their relationship was genuine. They wanted to apply for a Partner visa.

But there was another issue.

The sponsor had a previous partner sponsorship history.

Under Australian migration law, there are limits on partner sponsorship.

Generally, a person cannot sponsor more than two people as a partner, and a five-year limitation can apply where they have previously sponsored a partner or were themselves previously sponsored as a partner.

There are exceptions in certain circumstances.

So before lodging a Partner visa application, ask:

(1) Has the sponsor sponsored a partner before?

(2) Was the sponsor previously sponsored as a partner?

(3) When did those applications take place?

A genuine relationship does not automatically mean there are no sponsorship issues.

Sometimes, the first question is whether the proposed sponsor is eligible to sponsor their partner at all.

USING AI FOR VISA ADVICE? CHECK THE ANSWER.AI can be useful when you are trying to understand Australian immigration law...
28/09/2026

USING AI FOR VISA ADVICE? CHECK THE ANSWER.

AI can be useful when you are trying to understand Australian immigration law.

But there is an important limitation.

AI can sometimes give you a case citation that does not exist, or refer to a real case that does not actually support the answer.

A recent Federal Circuit and Family Court decision is a good reminder.

In Dey v Minister for Immigration and Citizenship (No 2) [2026] FedCFamC2G 1799, the Court found that some authorities cited in submissions could not be verified as genuine cases, while some others did not support the legal propositions being advanced.

So if you are using AI to research your visa or immigration situation:

Don't just ask AI for the answer.

Check the source.

Check the legislation.

Check the actual case or official government information.

And if the issue could affect your visa status, get advice from a qualified immigration professional.

AI can help you get started.

It should not be the final check on an important immigration decision.

THE TRIBUNAL SAID IT WOULD WRITE AGAIN. IT NEVER DID.So what happened?At the hearing, a student visa applicant disputed ...
26/09/2026

THE TRIBUNAL SAID IT WOULD WRITE AGAIN. IT NEVER DID.

So what happened?

At the hearing, a student visa applicant disputed information suggesting that she was no longer enrolled in her course.

She explained that she had completed her coursework but was still waiting to complete her practical placement. She also said she could provide further documents from her education provider.

Towards the end of the hearing, the Tribunal member said that any further questions would be put to her in writing, and that she would have seven days from that letter to respond and provide further documents.

But there was a problem.

No letter was ever sent.

The Tribunal later relied on the existing PRISMS information and found that the applicant did not meet the relevant enrolment requirement.

The applicant challenged the decision.

So, what did the Court make of it?

In Harpreet v Minister for Immigration and Citizenship (No 2) [2026] FedCFamC2G 1848 （22 September 2026), the Court looked at what had actually been said during the hearing.

The Court found that, in the circumstances, the applicant had reasonably understood that she would receive further correspondence and have an opportunity to provide documents before the decision was made.

She never got that opportunity.

The Court held that procedural fairness had been denied.

The Tribunal’s decision was set aside and the matter was sent back to the Tribunal to be reconsidered.

THE IMPORTANT LESSON

A Tribunal does not always have to give an applicant another opportunity to provide documents after a hearing.

But if the Tribunal says it will contact you and give you an opportunity to respond, what happens next can matter.

And there is another important takeaway:

Don’t overlook the hearing transcript or audio recording.

The written decision may not contain everything that was said during the hearing.

If a decision is later challenged, the transcript or audio may help establish what was actually said and what the applicant was led to expect.

Sometimes, what is said at the hearing can be just as important as what appears in the final written decision.

SA DAMA EXTENDED: WHAT DOES THIS MEAN FOR EMPLOYERS AND SKILLED WORKERS?Employers and skilled workers in South Australia...
25/09/2026

SA DAMA EXTENDED: WHAT DOES THIS MEAN FOR EMPLOYERS AND SKILLED WORKERS?

Employers and skilled workers in South Australia have more time to access the existing Designated Area Migration Agreements (DAMAs).

South Australia's two DAMAs have been extended for a further four months, until 31 January 2027.

The extension was announced on 21 September 2026, while negotiations continue for a new five-year statewide DAMA.

For now, the current terms and conditions remain unchanged from the June 2026 variation.

The important point is that the new five-year DAMA has not yet been finalised.

Further details on the new DAMA and transition arrangements are expected once negotiations conclude.

For employers and skilled workers considering a DAMA pathway, the coming months will be important to watch, particularly for changes to occupations, concessions, eligibility requirements and pathways to permanent residence.

MINISTERIAL DIRECTION 123: WHAT CHANGES FOR CHARACTER CASES FROM 31 OCTOBER 2026?A new Ministerial Direction will change...
25/09/2026

MINISTERIAL DIRECTION 123: WHAT CHANGES FOR CHARACTER CASES FROM 31 OCTOBER 2026?

A new Ministerial Direction will change the framework used by decision-makers in certain Australian visa character cases.

Minister Tony Burke signed Ministerial Direction 123 (MD 123) on 18 September 2026. It commences on 31 October 2026, replacing Direction 110.

MD 123 applies to decisions involving visa refusal or cancellation under section 501, and requests to revoke a mandatory cancellation under section 501CA of the Migration Act 1958.

Some of the key changes include:

🔹 5 primary considerations → 4

🔹 Australian ties move from a primary consideration to an other consideration.

🔹 For several character test grounds, the future conduct wording changes from whether a person “would” or “will” engage in certain conduct to whether they “might” engage in it.

🔹 The guidance on domestic and family violence is expanded, including stalking, image-based abuse, breaches of court orders, and psychological and economic abuse.

🔹 The guidance concerning minor children is more detailed, including current and future risks of abuse, neglect and exposure to domestic or family violence.

🔹 MD 123 also provides guidance concerning the newer section 501(6)(baa) character ground, including certain terrorist organisation, state sponsor of terrorism and prohibited hate group associations, hate crime conduct and certain hateful public statements.

🔹 Australian business interests are no longer listed as an other consideration.

Importantly, MD 123 does not replace the statutory character test in the Migration Act. It provides the framework and guidance for decision-makers exercising the relevant powers.

Direction 110 remains in effect until 30 October 2026. Direction 123 commences on 31 October 2026.

For anyone dealing with a section 501 or 501CA matter, these changes to the structure and assessment of the relevant considerations will be important.

THE BABY CAN COME TO AUSTRALIA. BUT WHAT HAPPENS AFTER ARRIVAL?A family recently came to me with what sounded like a sim...
23/09/2026

THE BABY CAN COME TO AUSTRALIA. BUT WHAT HAPPENS AFTER ARRIVAL?

A family recently came to me with what sounded like a simple question:

“Can our newborn child come to Australia?”

Both parents are Australian permanent residents. Their older child is an Australian citizen, while their newborn was born overseas.

The family is currently divided:

🇦🇺 One parent and the Australian citizen child are in Australia.
🌏 The other parent and the newborn remain overseas.

The newborn had just been granted a Visitor visa, with Condition 8503 (No Further Stay).

So the family wanted to know:

Could the baby remain in Australia after arrival?

This is where things become more complicated.

Condition 8503 generally prevents a visa holder from applying for many further substantive visas in Australia unless the condition is waived.

For a child born overseas to two Australian permanent resident parents, a Child visa may be relevant:

• Subclass 101 – for children outside Australia
• Subclass 802 – for children in Australia

However, if the baby enters Australia on a Visitor visa with Condition 8503, the family cannot simply assume that a Subclass 802 application can be lodged after arrival.

The Subclass 101 offshore pathway may instead be relevant.

Then there is another issue: processing time.

As at September 2026, 90% of recently decided Subclass 101 applications were decided within 33 months. This is an indicative processing figure only and does not mean every application will take that long.

For a newborn, however, a potentially lengthy processing period can have significant consequences.

It could mean:

🇦🇺 One parent and the older child remain in Australia
🌏 The other parent remains overseas with the newborn

This case highlights how different visa rules can interact in ways that have significant practical consequences for families.

Condition 8503.
Onshore and offshore requirements.
Processing times.
Ministerial Direction 117.

Each rule has its own purpose. The practical outcome for a particular family, however, may be much more complicated.

For families considering bringing a newborn to Australia on a Visitor visa, the question is therefore not simply:

“Can my baby enter Australia?”

It is also:

“What happens after the baby arrives?”

General information only and not legal advice.

INTERNATIONAL STUDENTS: CAN YOUR FAMILY STILL JOIN YOU IN AUSTRALIA?A major change was announced on 17 September 2026 th...
22/09/2026

INTERNATIONAL STUDENTS: CAN YOUR FAMILY STILL JOIN YOU IN AUSTRALIA?

A major change was announced on 17 September 2026 that could significantly affect international students planning to bring their partner or children to Australia.

The Government has announced that most new international students will no longer be able to automatically bring family members as secondary applicants.

However, there are important exceptions.

Who may still be able to bring family?

The Government has indicated that family members will still be permitted in certain circumstances, including:
• Students from ASEAN countries
• Students from Pacific countries
• Students studying PhD programs

What about families already in Australia?

The Government has stated that families who are already in Australia with family members attached to their visas will not be separated as a result of these changes.

Their existing arrangements will remain in place, subject to the usual visa and migration requirements.

What does this mean for future students?

If you are planning to study in Australia with your partner or children, the choice of course, nationality and timing of your visa application may become particularly important.

At this stage, the Government has announced the policy direction, but the detailed rules and implementation arrangements are still being developed.

If you are planning to study in Australia and want your family to join you, it is important to check the applicable rules before lodging your visa application.

The key question may soon be:

“Do I fall within one of the categories that can still bring family?”

CAN A VISA STILL BE CANCELLED ON CHARACTER GROUNDS IF THE PERSON CANNOT BE REMOVED?The Australian High Court considered ...
21/09/2026

CAN A VISA STILL BE CANCELLED ON CHARACTER GROUNDS IF THE PERSON CANNOT BE REMOVED?

The Australian High Court considered this in EGH19 v Minister for Immigration & Citizenship [2026] HCA 33, decided 9 September 2026.

The applicant’s Protection visa was mandatorily cancelled under s 501(3A) following further criminal offending. He sought revocation under s 501CA(4).

A key issue was that there was no real prospect of his removal from Australia in the reasonably foreseeable future.

HIGH COURT: CANCELLATION CAN STILL SERVE A PURPOSE

The Court held that the absence of a real prospect of removal did not, by itself, make the decision legally unreasonable.

The applicant could potentially be released into the community on a BVR subject to conditions, which could still contribute to protecting the Australian community.

The Court also found no failure to properly consider his representations or the legal consequences of refusing revocation.

KEY TAKEAWAY

Being unable to remove a person from Australia does not, by itself, mean that a character-based visa cancellation cannot serve a protective purpose.

For s 501CA(4) revocation applications, the relevant facts, circumstances and supporting material should be clearly identified in the representations.

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