Legislation Updates
Migration Legislation Tracker
A single source about the status of pieces of legislation, Bills, commencement dates, disallowances, etc
Clarifying international obligations for removal Bill
The Bill introduced on 25 March 2021 in the House of Representatives seeks to amend the Migration Act 1958 (Cth) to "modify the effect of section 197C to ensure it does not require or authorise the removal of an unlawful non-citizen (UNC) who has been found to engage protection obligations through the protection visa process unless"...
Facilitating onshore/offshore grant of parent visas
"The proposed amendments enable visa grants to some Parent visa applicants who are located in Australia, but who would be otherwise required to be outside Australia at the time of visa grant... The proposed amendments also enable visa grants to some Parent visa applicants who are located outside Australia, but who would otherwise be required to be in Australia at the time of visa grant".
Case Law Updates
Opposite to an eye keenly attuned to the perception of error
Federal Court (Full Court). Can it be said that, although a court cannot scrutinise an administrative decision with "an eye keenly attuned to the perception of error", it is equally well-established that the eyes of a reader “should not be so blinkered as to avoid discerning an absence of reasons or reasons devoid of any consideration of a submission central to a party’s case"?
Abuse of process?
High Court. Can it be said that, "while [the respondent] may have been motivated to bring the current proceedings out of loyalty to [another person] or to avoid a possible forensic disadvantage to [that person], that does not mean that the proceedings were brought for an improper purpose"?
Appellant S395 applicable to s 36(2)(aa)?
High Court. Can it be said that "the differences in the text, context and purpose of s 36(2)(a) and s 36(2)(aa) and, thus, in the construction and application of the separate criteria in s 36(2)(a) and s 36(2)(aa) compel the conclusion that the principle in Appellant S395 in relation to s 36(2)(a) (whether as that provision was framed at the time of the decision or as now in force) does not apply to the statutory task when considering the complementary protection criterion in s 36(2)(aa)? Are the circumstances constituting "significant harm" exhaustively identified in s 36(2A)?
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
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.