Legislation Updates

Migration Legislation Tracker

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

New Act on citizenship cessation

"Amends the: Australian Citizenship Act 2007 to: replace the current arrangements, whereby a person’s Australian citizenship automatically ceases through certain conduct, with a discretion for the Minister for Home Affairs to determine that a person who is a national or citizen of a country other than Australia ceases to be an Australian citizen if they have: engaged in specified terrorism-related conduct; fought for, or been in the service of, a declared terrorist organisation outside Australia; or engaged in conduct that results in a conviction for a specified terrorism offence..."

Concession period due to covid-19

The purpose of the new instrument is to "assist certain temporary and provisional visa holders, including individuals who are on a pathway to permanent residence, who have been disadvantaged by the consequences of the COVID-19 pandemic, such as border closures, restrictions imposed on businesses and the general economic downturn". The new measures include allowing individuals to apply for visa subclass 485 while overseas during the concession period and to be granted the visa while overseas.

Case Law Updates

Extensive adultery necessarily contrary to commitment to the exclusion of all others?

Federal Court. A FCCA judge said in his reasons that he had relied extensively on the draft reasons made by another judge in preparing his judgment. Was lack of disclosure of draft reasons to Appellant contrary to procedural fairness rules? If so, should costs order below be reversed? Is a continued adulterous relationship determinative of whether definition of "spouse" in s 5F(2)(b) is satisfied? If not, is is at least an exclusionary factor? Is the absence of consent to adultery determinative of whether s 5F is satisfied? If not, is it at least a factor? AAT failed to reveal existence of invalid s 375A certificate containing dob in. Was that failure immaterial, as Appellant was aware of existence and gist of dob in through an FOI and did not make a s 362A request? Does materiality test require judicial review applicant to prove what they would have done had error not been made?

Difference between criminal and immi detention

Federal Court. Does “giving” a document within the meaning of r 5.02 require “actual delivery” to detainee or authorised person? The definition of "immigration detention" under s 5(1) includes "being held by, or on behalf of, an officer ... in a prison or remand centre of the Commonwealth, a State or a Territory". Does the mere fact that a State prison can be a place of immigration detention mean that a person there held is in immigration detention? Does the cancellation of a person's visa while that person is in criminal detention itself convert the criminal detention into immigration detention? Was the Applicant's last residential address known to the Minister the address where he was serving a prison sentence? Was BDS20 plainly wrong?

Did practitioner act in contravention of ss 245AR & 245AS?

OMARA. Did the practitioner facilitate payments to a sponsor in exchange for a visa applicant’s employment and sponsorship? If so, did she act in contravention of ss 245AR and 245AS?

Industry Updates

“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".

Deregulation: OMARA fee “refund” is possible

The OMARA has recently informed practitioners that it will not be able to refund registration (or repeat registration) application charges for legal practitioners who will no longer be regulated by the OMARA. Although the OMARA is not itself able to offer refunds, we carried out research for our readers and found a piece of legislation which gives the Commonwealth government the discretion to make payments to individuals in certain circumstances, which in the case of OMARA fees could effectively work as a refund. We also discuss the government's policies on such circumstances and how to make a "refund" request.

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.

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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