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?

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