Legislation Updates

Migration Legislation Tracker

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

New instrument on complying investments

The new instrument "specifies the investments permitted for certain streams for Subclass 188 (Business Innovation and Investment (Provisional)) visa and Subclass 888 (Business Innovation and Investment (Permanent)) visa under Australia’s Business Innovation and Investment Program (BIIP)"

Changes to bridging visas

"The purpose of the instrument is to ... reflect changes to the manner in which a Bridging E (Class WE) application on paper forms 1005 and 1008 is lodged... In addition, the instrument amends the approved forms for bridging visa applications under the Migration Regulations to include references to..."

Case Law Updates

Weight of expectations of AU community offset by children’s best interests?

Federal Court. Can it be said in light of FYBR that "decision-makers are required to have due regard to the government’s views as to the expectations of the Australian community, but that the question as to whether it is appropriate in all the circumstances to act in accordance with those expectations remains a matter for the Tribunal’s discretion"? If the Tribunal refers in its decision to the submissions made by an applicant, does it necessarily mean that it considered those submissions?

Self-represented applicant’s claims not drafted with skill of practitioners

Federal Court. In determining whether a self-represented person made a clearly articulated claim to an administrative decision-maker, should it be taken into account that a claim might not be drafted with the skill of practitioners?

AAT considering subset of delegate’s issues?

Federal Court. If the Tribunal suggests that it will consider only a subset of the issues considered by the delegate but in reality also considers other issues considered by the delegate, is it under an obligation under s 360(1) to "invite the applicant to give evidence and present arguments relating to [those other] issues"?

Industry Updates

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

Hidden & potentially significant consequences of deregulation to lawyers

With respect, it appears that Parliament did not consider some unintended, but potentially significant, consequences of the "deregulation legislation". For instance, the Department will no longer be required, in some circumstances, to communicate with non-RMA lawyers, even if informed that they are both the representative and authorised recipient, as we explain in this article. It is true that, although the Department will not be required to communicate with the non-RMA lawyer in those circumstances, it might be very likely to do so anyway. However, who would like to take the risk, even if very low?

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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