Legislation Updates

BV: new instrument

The purpose of the new instrument commencing on 26 May 2020 concerning bridging visas is to amend a drafting error in the repealed instrument

Migration Legislation Tracker

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

Bill could prohibit internet and mobiles in detention

A Bill introduced and read a first time in the House of Representatives on 14 May 2020 would "amend the Migration Act 1958 (Migration Act) to allow the Minister to determine that a thing is a prohibited thing in relation to immigration detention facilities and detainees (whether or not they are in an immigration detention facility). These things may include controlled drugs (as defined in the Criminal Code Act 1995) and prescription drugs not taken by the person to whom they are prescribed, mobile phones, Subscriber Identity Module (SIM cards), and internet-capable devices".

Case Law Updates

Can court order visa grant?

Federal Court. Should Minister have put Applicant on notice he would reconsider delegate's findings? Does Direction 79: treat visa refusals as inappropriate in a case where the “character concerns” of the visa applicant present no risk to the Australian community; allow decision-makers to treat the expectations of the Australian community as the decisive consideration? Are those expectations the Minister's conception of what such expectations are? Is a reasonable time to the making of a decision implied into ss 65 or 501? If so, how is it calculated? Was a delay of more than 3 years unreasonable? If so, did detention become unlawful from the time of implied deadline onwards? With respect, although FCA said that counsel for Applicant could not point to any case where a court had ever ordered the grant of a visa, HCA has done that before.

“Exceptional circumstances” a matter of law?

Federal Court. Minister revoked Applicant's citizenship, who applied under s 29(7) of AAT Act for time extension to apply for merits review. AAT wrote: "There is prejudice to the public and the general administration of justice if decisions are not regarded as final and can be re-opened after a period of 12 years unless there are truly exceptional circumstances". As a matter of law, do time extension applicants need to establish “truly exceptional circumstances”? Did AAT treat the need for exceptional circumstances as a matter of law?

Culturally adopted by different Aboriginal community?

Federal Court. Brennan J stated the tripartite test in Mabo (No 2) for determining a person's Aboriginality. That test was adopted in Love in the context of determining whether a person is an alien within the meaning of the Constitution. For the purposes of applying the 2nd and 3rd limbs of that test, can a person "be found to be an Aboriginal Australian through mutual recognition in a different society or people than the one from which he or she has descended biologically", in the absence of evidence of the laws and customs of that different society, "including particularly in relation to the existence or process of any mechanism of 'cultural adoption'"? Does the indigenous society or people have to "exist today for a biological descendent to be able to establish that he or she is not an alien"?

Industry Updates

28-day “grace period” for student visa applicants?

It is sometimes said by applicants that a person who remains in Australia after their student visa expires has a 28-day "grace period" during which they remain lawful non-citizens. We explain why that is not the case.

Mental health & wellbeing

We have compiled a short list of some of the many entities & professionals that can help RMAs (and future RMAs) in the area of mental health, ranging from fee to paid services. Any RMAs who find themselves in a difficult period of their lives are welcome to contact any of those entities and also to seek alternative options not listed here. What really matters is that help is sought whenever needed.

COVID-19: travel ban extended yet again

"On 27 February 2020, the Australian Government supported recommendations from the Australian Health Protection Principal Committee (AHPPC) to maintain current travel restrictions. These will be reviewed again before 6 March 2020. Read the statement from the AHPPC". Further, the federal government had announced on 22 Feb 2020 that "[s]enior high school students who remain in China due to Australian travel restrictions have been offered a strict pathway to resume their studies in recognition of the importance of the final 2 years of school". However, on 27 Feb, the Prime Minister told reporters there were "no carve-outs" as part of the extended travel ban, which seems to contradict the government's own assurances relating to students made only 5 days earlier.

Media Updates

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.

COVID-19: travel ban expanded to Italy

The government has just announced that it will expand the travel ban to Italy as of 6PM tonight, 11 March 2020.

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