Legislation Updates

Visa pre-application process charge

"The Regulations prescribe an amount of AUD... as the charge for registration as a registered participant in a ballot for the new Pacific Engagement visa. The charge must be paid at the time of ..."

Migration Legislation Tracker

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

Student visas: changes to GTE requirements

"... The purpose of this amendment is to strengthen the assessment of the student’s intention to genuinely study in Australia and more effectively identify any non-genuine international students seeking to enter Australia for purposes other than study ..."

Case Law Updates

Appeal: error re-exercising s 501(2) immaterial if further conviction could have been relied on?

Federal Court (Full Court). The respondent was notified of the intention to consider cancelling his visa under s 501(2), based on the "2008 conviction". The Minister did not cancel the visa, after which the respondent was convicted of further offences. The Minister then cancelled the visa under s 501(2), based on the 2008 conviction, but not the further convictions. Due to Makasa, the reliance on the same conviction was erroneous. Was the error nevertheless immaterial, as the further convictions (if they had been relied upon) would have formed an independent basis upon which the respondent failed the character test?

Thornton applicable to NSW offences?

High Court. In Thornton, the High Court held that ss 85ZR(2) and 85ZS(1)(d)(ii) of the Crimes Act 1914 (Cth) precluded consideration of offences committed in Queensland by the respondent to that case when he was a child in the determination of whether to revoke the cancellation of his visa under s 501CA(4) of the Migration Act 1958 (Cth). Does Thornton apply to offences committed by children in NSW?

Appeal: Direction 99 binding before it commenced?

Federal Court (Full Court). The Tribunal made its decision after Direction 90 commenced but before Direction 99 commenced. Was the Tribunal obliged to have regard to the “change in policy” in Direction 99?

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.

Copyrighted Image

error: Content is protected !!