Legislation Updates

Migration Legislation Tracker

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

New instrument on regional areas

The instrument specifies: a part of Australia to be a designated city or major regional centre for the purposes of reg 1.15M(1) of the Regulations; a part of Australia to be a regional centre or other regional area for the purposes of reg 1.15M(2); a part of Australia as regional Australia for the purposes of reg 5.19(16); an area for the purposes of cl 892.213(3)(b) of Schedule 2; an area for the purposes of cl 888.226(2)(c)(i) of Schedule 2. It also provides access to a second Subclass 485 (Temporary Graduate) visa in the Post-Study Work stream in certain circumstances.

No VAC for sub 408: additional class of persons

The new instrument specifies "an additional class of persons, who are eligible to apply for a Subclass 408 visa in relation to the COVID-19 pandemic, with a nil VAC"

Case Law Updates

Unlawful due to cancellation or refusal?

Federal Court. Subsection 196(4) of the Migration Act 1958 (Cth) read: "if the person is detained as a result of the cancellation of his or her visa under section 501, 501A, 501B, 501BA or 501F, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non‑citizen". DHA cancelled Applicant's BVA under s 501(3A) and then refused to grant him a protection visa. Was he detained "as a result of the cancellation" of his visa or rather as a result of the visa refusal? Did FCA have power under s 23 of the Federal Court of Australia Act 1976 (Cth) to order his release on an interlocutory basis on the basis that s 196(1) of the Migration Act is not inconsistent with s 23?

GTE: applicants on notice of Direction 69 factors; previous tourist visa probative?

Federal Court. In the context of assessing cl 500.212 (GTE), are merits review applicants necessarily on notice of the relevance of the matters set out in Direction 69 due to the very fact that they are so set out? Was it legally unreasonable for the AAT to treat what it found to be false statements made in a previous tourist visa application made by the Appellant as probative of an intention to stay in Australia beyond the conclusion of the student visa?

Materiality test explained

Federal Court. An error is only jurisdictional if material to the decision. Is the materiality test about whether the decision would (as opposed to could) have been different had the error not occurred? If the question is about whether the decision could have been different: is there a need to make any further assessment of the likelihood of the decision being different had the error not occurred; does that mean that an error can always be surgically removed from the decision-maker's reasons, leaving the framework surrounding it intact?

Industry Updates

RMAs on ATO’s radar

The ATO will acquire visa data from the Department of Home Affairs for 2020-21 through to 2022-23.  The data items include...

“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.

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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