Legislation Updates

New arrangements Work & Holiday (sub 462)

"The purpose of the instrument is to update the following requirements in relation to applications for Work and Holiday (Temporary) (Class US) visas (Class US visas): the list of countries where an applicant is exempt from providing evidence of home government support; the education requirements for applicants from various countries; and the place and manner for making an application".

Nil VAC for certain visitor visa applicants

"The purpose of the instrument is to specify that certain former Subclass 600 (Visitor) visa (Subclass 600 visa) holders can apply for a new Subclass 600 visa with a nil visa application charge (VAC) where their travel to or stay in Australia (or both) has been affected by the COVID-19 pandemic"

Migration Legislation Tracker

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

Case Law Updates

No transcript & no reference to argument made

Federal Court. If a judicial review applicant cannot afford to order the transcript of a Tribunal hearing, can they nevertheless file an affidavit to describe the evidence given at that hearing? Can the absence from otherwise detailed reasons of any reference to a submission or argument made to an administrative decision-maker indicate that it is unlikely that such decision-maker considered such submission or argument? In determining the materiality of an error, can a court assume that the administrative decision-maker approached the decision with a closed mind?

“Encouraging” migration litigation

Federal Court. Section 486E of the Migration Act 1958 (Cth) provides that a person must not "encourage" the commencement or continuation of migration litigation if the case "has no reasonable prospect of success". Section 486F provides that a court may make a costs order against a person who breached s 486E. Can it be said that a "lawyer’s conduct in formulating the grounds, filing the notice of appeal and certifying the grounds as having reasonable prospects of success, whilst asserting an entitlement to charge fees for legal services for doing those things are together sufficient to support an inference that a legal practitioner has “encouraged” the client to commence and continue the litigation in the requisite sense"?

Appeal: time of lifting the bar or TOA?

Federal Court (Full Court). In Jul 2017, Minister determined that s 46A bar be lifted for TPV or SHEV if: a) a similar determination had been made relating to UMA's parent; and b) any application by the parent was made by 1 Oct 2017; and c) that application has not been refused and finally determined. Was the latter criterion to be satisfied by reference to Jul 2017 or the time of the SHEV application? We also summarise the court's views on the requirements of procedural fairness concerning s 46A.

Industry Updates

Not “too late” for RLPC holders to apply to MARA

2 industry associations communicated to their members on 13 Feb 2021 that MARA announced that an initial application to become an RMA by a Restricted Legal Practising Certificate holder made before the commencement of the deregulation legislation "must be treated as if it were lodged after the new legislation commenced", if it is decided after commencement. Given the 30-day notice requirement and processing time, MARA therefore indicated that applications made after 14 Feb would likely require completion of the Grad Dip and passing of the Capstone. Later on 13 Feb, we respectfully raised it with MARA that the passage quoted above appeared incorrect. Accordingly, MARA has told Migration Law Updates today that they will be amending their announcement.

RMAs on ATO’s radar

The ATO will acquire visa data from the Department of Home Affairs for 2020-21 through to 2022-23.  The data items include...

“Minister has acted unlawfully”

Federal Court: "The Minister has acted unlawfully. His actions have unlawfully deprived a person of his liberty. His conduct exposes him to both civil and potentially criminal sanctions, not limited to a proceeding for contempt. In the absence of explanation, the Minister has engaged in conduct which can only be described as criminal".

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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