Legislation Updates

New instrument on period, manner & evidence of Labour Market Testing

The new legislative instrument specifies the period, manner and evidence of Labour Market Testing for the purposes of visa subclasses 457, 482 (TSS) and 494 (new regional visa)

New instrument on the Annual Market Salary Rate

"The purpose of this instrument is to amend Migration (IMMI 18/033: Specification of Income Threshold and Annual Earnings and Methodology of Annual Market Salary Rate) Instrument 2018 (IMMI 18/033) to address changes to the Regulations as a result of amendments to the Regulations by the Migration Amendment (New Skilled Regional Visas) Regulations 2019 (the amending Regulations)".

New instrument on how to make valid application for subclass 494

"The instrument operates to specify the requirements for making an application for a Subclass 494 visa. For the purposes of subitem 1242(1) of Schedule 1 to the Regulations, the instrument specifies the approved form for making a valid application. For the purposes of paragraph 1242(3)(a) of Schedule 1 to the Regulations, the instrument also specifies the manner in which an application must be made".

Case Law Updates

Protection visa: qualitative vs quantitative approach

Federal Court: Section 91R of the Migration Act 1958 (Cth), which is now repealed but still operative in some legacy cases, qualified some aspects of Article 1A(2) of the Refugees Convention. In WZAPN, the High Court held that "whether a risk to loss of liberty constitutes 'serious harm' for the purposes of s 91R(1)(b) requires a qualitative judgment". Here, the AAT found that an isolated abduction incident did not constitute a real chance of serious harm. Was that a non-qualitative finding, which thus misinterpreted s 91R?

Did the Minister engage with the representations?

Federal Court: Minister was considering whether to cancel the Applicant's visa under s 501(2). Applicant stated that "there was targeted violence [in South Sudan] against the Nuer ethnic community of which the applicant is a member, including killings, abductions, unlawful detentions, deprivation of liberty, rape and sexual violence". Minister accepted that the Applicant "would face hardship arising from famine and civil war were he to return to South Sudan". Did the Minister engage with the Applicant's representations?

Ethnicity harm subsumed by non-refoulement harm?

Federal Court (Full Court): The Appellant claimed fear of harm on the basis of: his ethnicity & religion; and non-refoulement obligations. Was the former type of harm subsumed by the latter on the basis that the latter "could not have been any less" than the former? With respect, the FCAFC echoed once again the writer's views expressed in several articles that the materiality test is not binary: the question is whether, had the error not been made, it could have tipped the scales in favour of an applicant. Further, in the absence of minor children in Australia related to an applicant, can that factor weigh against that applicant?

Industry Updates

“where you suspect fraudulent practices by nominators or migration agents”

We have recently received a copy of an electronic, unclassified newsletter published by the Department of Home Affairs for Regional Certifying Bodies (RCBs), which includes the following passage: "RCB officers can use the ESPM mailbox to raise issues requiring clarification and to copy us into your email to the RCB Advice mailbox in cases where you suspect fraudulent practices by nominators or migration agents".

“Regional Australia” replaced by “regional areas”

"The purpose of the instrument is to amend IMMI 18/037 to remove references to “regional Australia” as defined under subregulation 5.19(16) of the Regulations. As part of the package introducing new regional visas, a new instrument ... specifies the parts of Australia that are regional Australia under subregulation 5.19(16) of the Regulations. Amending IMMI 18/037 to remove references to regional Australia ensures two instruments that specify regional Australia for the purposes of subregulation 5.19(16) do not operate concurrently".

Incorrect information relating to previous visas

It is common sense that the cancellation power under s 109 of the Migration Act 1958 (Cth) can be used where a visa holder gave incorrect information for the purposes of the application for the visa currently held. But can a person's visa be cancelled under s 109 by reason of the giving of incorrect information for the purposes of an application for a visa previously held?

Media Updates

Cutting permanent migration by 120,000 places over 4 years

'First, the government is cutting the permanent migration program by a cumulative 120,000 places over four years. The new cap is 160,000 per annum, down from the cap of 190,000. The average intake over the last five years has been 183,000... Second, the government is introducing strong incentives for new international students to choose locations outside of the big capital cities'.

Government to ‘abandon’ plans for stricter citizenship test?

"The Australian Government may not be pursuing changes to the Australian citizenship law - that would make permanent residents wait longer and require evidence of their English proficiency before they can apply"

More work & holiday visas available to Singaporeans

'From 1 July 2019, the number of Work and Holiday visas available to Singaporean citizens aged 18-30 will increase from 500 to 2,500 per year'

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