Legislation Updates
AMEP: tuition eligibility for Afghan citizens
"As part of supporting this cohort, this instrument expands eligibility for tuition in approved English courses, known as the Adult Migrant Education Program (AMEP), to holders of Subclass..."
Migration Legislation Tracker
A single source about the status of pieces of legislation, Bills, commencement dates, disallowances, etc
New TRA fees
"The purpose of the instrument is to specify under subregulation 5.40(1) of the Migration Regulations: the fees payable to TRA for an application of assessment of...
Case Law Updates
Can AAT go behind sentencing remarks?
Federal Court (Full Court). Was the Tribunal entitled to re-characterise the Appellant's conduct and, in doing so, depart from the characterisation adopted by the sentencing judges in a significant way, by labelling the conduct as 'predatory'? In other words, was the Tribunal entitled to go behind the sentencing remarks? If so, does it follow that the Tribunal "was required, in the circumstances, to inform the appellant that it may form a different view and to invite comment from the appellant"?
Unrepresented applicants & claims emerging from the materials
Federal Court. There is no precise standard to determining whether an unarticulated claim has been "squarely raised" or "clearly emerges" from the materials. But will a court be more willing to make that finding in favour of an unrepresented party?
Recusal application
Federal Court (Full Court). One of the judges of the Full Court had appeared as the Commonwealth Director of Public Prosecutions in a conviction appeal on a point of law involving the non-citizen in question. The non-citizen's representative applied for that judge to recuse himself from hearing the appeal from an FCA decision dismissing a judicial review application.
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.