Legislation Updates

Specified subclass 417 work exemption

"The purpose of the instrument is to specify the kinds of passports, held by applicants for second or third Subclass 417 (Working Holiday) visas for the purposes of subitem 1225(3BA) of Schedule 1 to the Migration Regulations. This cohort will be exempt from the requirements for making a valid application for a second or third Subclass 417 (Working Holiday) visa..."

Migration Legislation Tracker

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

New test for PIC 4005 and 4007

The new instrument introduces a mandatory hepatitis B testing requirement for certain classes of persons

Case Law Updates

Meaning of “at the time of birth” in s 16(2)(a) of Citizenship Act

Federal Court (Full Court). Do the terms "at the time of the birth” in s 16(2)(a) of the Australian Citizenship Act 2007 (Cth) mean the moment the child “physically emerges from the mother or gestational carrier”, instead of a period of indefinite duration?

Does failure to comply with s 418(3) invalidate AAT’s decision?

Federal Court (Full Court). Does a failure to perform the Secretary’s duty under s 418(3) of the Migration Act 1958 (Cth) to give the Tribunal the documents that are relevant to the review invalidate a subsequent decision by the Tribunal?

Misuse of alcohol and drugs: a health issue?

Federal Court (Full Court). Can it be said that, for para 9.2(1)(a) of Direction 90, "evidence or findings which reflect that the appellant misuses alcohol and drugs, has a propensity for poor behaviour or committing crimes while intoxicated and has required rehabilitative intervention does not compel a finding that the appellant has a dependency on alcohol amounting to a “health issue”, let alone one that would impede his reintegration in [his home country]"?

Industry Updates

Did para 8.3(4)(f) require consideration of child’s own views of removal...

Federal Court. Can it be said that, as the Applicant did not raise with the Tribunal his age or health as relevant were he to be removed from Australia, par 9.2(1)(a) of Direction 90 did not require the Tribunal to take those matters into account, as that provision only required such matters to be taken into account 'where relevant'? Did para 8.3(4)(f) of Direction 90 require the decision-maker to have regard to a child’s own expression of the importance to him or her of the non-citizen seeking review of a decision affecting his or her visa, instead of only considering the evidence of adults as to the adverse impact?

Can unauthorised maritime arrivals apply for visas?

Can an "unauthorised maritime arrival" apply for any type of visa while in Australia? Is the answer determined by s 48 of the Migration Act 1958 (Cth)?

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?

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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