Legislation Updates

Migration Legislation Tracker

A single source about the status of pieces of legislation, Bills, commencement dates, disallowances, etc

New instrument for RPC holders

Section 278A of the Migration Act 1958 (Cth) provides that a restricted legal practitioner can apply for an extension of the period of 2 years within which to be an RMA. The MARA can give an extension if it considers it reasonable to do so in the circumstances, including (but not limited to) the ones to be set out in an instrument. The instrument has now been registered.

Citizenship: special residence requirement

"The purpose of the instrument is to specify: activities for subparagraph 22A(1)(a)(i) of the Act, organisations for paragraph 22A(1)(b) of the Act, and kinds of work for paragraph 22B(1)(a) of the [Citizenship] Act."

Case Law Updates

AAT bound by sentencing remarks? WKMZ authoritative despite AJL20?

Federal Court. In the context of s 501CA(4), was the AAT bound by the sentencing remarks of the District Court? Does the decision of the Full Court in WKMZ remain authoritative despite the High Court decision in AJL20?

Cl 13.1.2(1): separate risk assessments for each kind of offending?

Federal Court (FCA). According to the FCA, the effect of cl 13.1.2(1) of Direction 79 was to oblige decision-makers "to have regard cumulatively to the nature of harm should the non-citizen engage in further criminal or other serious conduct, and the likelihood of the non-citizen doing so". Does cl 13.1.2(1) require decision makers to "engage in separate risk assessments for each kind of offending in which an applicant has historically engaged"?

GTE: incentive to remain in Australia? Obiter in MZAPC limited to “ultimate decision”?

Federal Circuit Court. Although cl 9.d of Direction 69 refers only to the negative effect of military obligations in an applicant's home country, does the GTE criterion in cl 500.212(a) also encompass any positive effects of such obligations? Was the obiter dicta in MZACP at [33] and [181] according to which errors in the form legal unreasonableness are material by definition and therefore jurisdictional limited to errors in the "ultimate decision", therefore excluding errors in findings of fact?

Industry Updates

Not the Minister; no bad faith; not criminal

Federal Court (Full Court). AAT granted visa on 11 Mar 2020 to Respondent, who was kept in detention till 17 Mar 2020. Minister applied for JR to FCA, which dismissed application and held, among other things: Respondent was not released earlier because of the Minister's "personal dislike of the Tribunal decision"; “In the absence of explanation, the Minister [had] engaged in conduct which [could] only be described as criminal”. FCAFC unanimously allowed Minister's appeal, holding that conduct in question did not amount to bad faith (and implicitly was not criminal) and was not engaged in by Minister personally. If AAT makes a decision based on the law as then understood and that understanding is later on overturned by a court, is the AAT's decision affected with jurisdictional error ab initio? Did AAT have power to grant visa which had been refused under s 501?

AAT on deregulation: action required

The Tribunal is requiring Australian legal practitioners with pending migration matters to take the steps described in this article, due to the commencement of deregulation

Hidden & potentially significant consequences of deregulation to lawyers

With respect, it appears that Parliament did not consider some unintended, but potentially significant, consequences of the "deregulation legislation". For instance, the Department will no longer be required, in some circumstances, to communicate with non-RMA lawyers, even if informed that they are both the representative and authorised recipient, as we explain in this article. It is true that, although the Department will not be required to communicate with the non-RMA lawyer in those circumstances, it might be very likely to do so anyway. However, who would like to take the risk, even if very low?

Media Updates

Increased flexibility for international students to support supermarkets

The Federal government has recently announced as follows: "Today the Morrison Government has announced that supermarkets in States and Territories subject to COVID-19 lockdowns...

Can non-compliance with social distancing lead to cancellation?

"I will also say a very clear message to those backpackers who may not be adhering to the social distancing rules... [Y]ou will be breaching your visa condition and if we find that out, we will be kicking you out of the country". We discuss whether non-compliance with social distancing rules can in fact lead to a breach of a visa condition and ultimately the cancellation of a working holiday, work and holiday or other visas.

Some students able to work more than 40 hrs / fortnight

"Australia’s major supermarkets will temporarily be able to offer more hours to international student employees to help keep shelves stocked". It will be interesting to see whether this measure is extended to other industries until the situation is normalised.

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