Legislation Updates

Migration Legislation Tracker

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

Manner and form to apply for visa subclass 192

"The purpose of this instrument is to specify the approved form for making a valid application for the Subclass 192 visa and the manner in which that application must be made"

Student visa: higher financial requirements

The purpose of the new instrument is to "revise and increase the amount of funds required to be evidenced by a Subclass 500 visa applicant or Subclass 590 visa applicant, to reflect the current cost of living pressures these visa holders will be subject to once they arrive in Australia"

Case Law Updates

Sending bundle of documents = valid AAT application?

Federal Court. Is the validity of an application to the Tribunal under s 500 of the Migration Act 1958 (Cth) a jurisdictional fact? By finding that the review application was out of time, did the Tribunal implicitly found that that application was invalid? Did the mere sending of a bundle of documents to the Tribunal constitute a valid Tribunal application?

Presumption that Crown is not bound by statute?

High Court. Is there common law presumptions in Australia that "the Crown is not bound by statute unless a contrary intention can be discerned from all the relevant circumstances" and that a statute does not impose criminal liability on the Crown?

Thornton extended to Crimes (Sentencing Procedure) Act 1999 (NSW)?

Federal Court. Should Thornton and Lesianawai be extended to s 35(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW)? Did the fact that the applicant had only been involved in the supply of methamphetamine at the instigation of an undercover officer render his offending as irrelevant to the Tribunal's inquiry as to the protection of the Australian community under para 8.1.1(1) of 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.

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