Legislation Updates
Migration Legislation Tracker
A single source about the status of pieces of legislation, Bills, commencement dates, disallowances, etc
Refund of VAC
The new instrument specifies "an additional circumstance where the first instalment of VAC may be refunded, to encourage visa holders in nominated subclasses to travel to Australia and participate in the Australian economy"
Payment of visa application charges & fees in foreign currencies in 2022
"The purpose of the instrument is to specify the exchange rates and foreign currencies used to make payments of certain fees, for paragraph 5.36(1A)(a) of the Regulations, from 1 January 2022"
Case Law Updates
Court commits JE whenever it omits to deal with each explanation for delay?
Federal Court. Can it be said in the context of s 477(2) of the Migration Act 1958 (Cth) that "a court determining an application for extension of time commits jurisdictional error whenever it omits to recite and deal with each explanation for delay"? Does the requirement that an error be material in order to be a jurisdictional error, as identified in Hossain, apply to a decision of the Federal Circuit Court under s 477(2) as much as it does to an administrative decision maker?
ss 116(1)(e) & 133C(3) interpreted
Federal Court (Full Court). Section 116(1)(e) called for the consideration of future possibilities which proceeded by drawing inferences from known facts and "reasonable conjecture within the parameters set by the historical facts". To these considerations should the following ones be added as legitimate bases for the assessment process: "common sense, a reasonable appreciation of human experience, and personal knowledge or specialised knowledge of the Minister or his or her Department"?
ss 24(1A) & (1C) of FCA Act interpreted
Federal Court. Section 24(1A) of the FCA Act provided that an appeal shall not be brought from an interlocutory judgement unless the FCA gives leave. Does Jackson apply equally to the notice of appeal filed in this case? If so, did the exception under s 24(1C) apply? Did the decision under s 501(3A) of the Migration Act 1958 (Cth) interfere with the sentence and parole orders of the District Court of NSW in violation of the separations of powers?
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.