Legislation Updates

Required medical assistance

"The purpose of the instrument is to [update] the additional medical assessments for the class of persons mentioned in paragraph 2(c) of IMMI 15/144 for paragraphs 4005(1)(aa) and 4007(1)(aa) of Schedule 4 to the Regulations"

Arrangements for subclass 417 visa applications

"The instrument updates the younger age specified for working holiday eligible passports issued by Denmark or Italy, to increase the eligible age for ... applicants for a subclass 417 visa to the maximum of 35 years of age (see subparagraph 417.211(2)(b)(i) of Schedule 2 to the Regulations)"

New VACs from 1 July 2022

New VACs from 1 July 2022 ... The new Migration Amendment (Visa Application Charges) Regulations 2022 commences on 1 July 2022 and its explanatory statement includes...

Case Law Updates

Can intermediate appellate court depart from HCA’s dicta?

High Court (HCA). Can an intermediate appellate court depart from seriously considered dicta of a majority of the HCA? How should an intermediate appellate court nor a trial judge treat decisions of another intermediate appellate court?

AAT obliged to consider s 36(3) despite concession that it applies?

Federal Court. Did the failure of the applicant to point out the defeasibility, pursuant to s 36(3) of the Migration Act 1958 (Cth), of his right to enter the Republic of South Africa (RSA) "obviate the obligation on the decision-maker to make a finding of fact on the materials before it that such a right was currently in existence and not immediately defeasible on return to the RSA"?

How can foreign citizenship be determined?

Federal Court. Can it be said that "a conclusion as to a person’s citizenship might be made administratively without any passport or other identity documents, just on the basis of an apparently truthful statement by the person (or another, perhaps a parent) as to their place of birth and confirmation by an Australian diplomatic or other source that persons so born acquire that country’s citizenship"?

Industry Updates

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?

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

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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