Legislation Updates

Migration Legislation Tracker

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

LIN 19/084: Definition of a Superyacht

"The purpose of the instrument is to remake the instrument defining a superyacht under regulation 1.15G of the Regulations as the instrument IMMI 09/019 is scheduled to sunset on 1 October 2019. The instrument replicates the definition of superyacht in the previous instrument IMMI 09/019. The new instrument, LIN [19/084] continues to provide the necessary framework for applicants to meet criteria in relation to the superyacht stream of the Subclass 408 (Temporary Activity) visa".

New instrument: approved forms for Business Skills visa

The Instrument specifies the approved forms for making a valid application for the following visa subclasses: 188 (temporary business innovation and investment); 888 (permanent business innovation and investment); 132 (business talent); 124/858 (distinguished talent)

Case Law Updates

Materiality test disguising merits review

Federal Court: The writer has voiced concerns in several articles about the fact that, sometimes, merits review is inadvertently disguised by the Minister as materiality test considerations. With respect, those concerns were finally echoed by a judge of the FCA. Further, can it be said that, as the Tribunal "is not bound by technicalities, legal forms or rules of evidence”, it cannot "decline to accept the tender by or on behalf of an applicant at a hearing of a document containing information capable of corroborating the basis of that applicant’s visa claim"?

TSS: ANZSCO not always necessary?

Federal Court: This decision is extremely important to subclass 482 (TSS) visa applicants. Although it concerned a subclass 457 visa application, it involved the interpretation of a critical provision that is identical to cl 482.212(3). According to this decision, ANZSCO was not the only guide that could be used to determine the "skills, qualifications and employment background" that were necessary for the applicant to perform the tasks of the nominated occupation. We explain how practitioners can use this decision to their clients' advantage.

Ibrahim / Nguyen tension resolved?

Federal Court (Full Court): In SZMTA, HCA held that: error was jurisdictional only if it was material, that is if a different decision could have been made had the error not been made; materiality is a question of fact of which judicial review applicants bear the onus of proof. In Ibrahim, FCAFC held that it was incumbent on the judicial review applicant to demonstrate what would or could have occurred had the error not been made. In Nguyen, FCAFC, differently constituted, disagreed with that aspect of Ibrahim. Can that division be resolved? Were those cases distinguished here?

Industry Updates

Section 48: leaving and re-entering resets the bar?

Under s 48(3) of the Migration Act 1958 (Cth), a person who leaves and re-enters Australia while holding a BVB is taken to have been continuously in the MZ for the purposes of s 48. Thus, if a person leaves Australia, re-enters and applies for a visa, they are still s 48 barred. But does s 48(3) also apply to a person who leaves Australia on a BVB, applies for a visa and then re-enters Australia?

Changes to the Code of Conduct on the horizon?

The OMARA has recommended 65 changes to the Code of Conduct for RMAs, some of which are as follows: "[An RMA] must not seek to abuse any process or procedure in connection with Australian migration law or advise any person to do something which would amount to such abuse ... [An RMA] must not deliberately or negligently provide false or misleading claims or documentation to, or deliberately or negligently conceal relevant information from, the decision maker in relation to any immigration matter they are representing".

Where to find the deadline for merits review

It is commonly said that s 347 of the Migration Act 1958 (Cth) prescribes the deadline for application for merits review of decisions that are reviewable under s 338. Actually, the deadline is found somewhere else.

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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