Australia: Immigration - What's News - 20 January 2016

Last Updated: 22 January 2016
Article by Maria Jockel

In the media

Businesses lobby against sc457 income threshold increase and call for an end to labour market testing
With the sc457 review underway, business groups have stepped up their campaign against increasing the income threshold of sc457 workers and have also made calls to abolish the 'Labor-era labour market testing' calling it a 'needless and burdensome requirement' (14 January 2016).  More...

Immigration detention times on Nauru and Manus Island blow out to 450-day average
The time asylum seekers spend in Australian immigration detention has hit a record high at an average of almost 450 days. Government figures show a record high late last year, at an average of 446 days in November and 445 days in December (13 January 2016).  More...

New Zealand unable to accept refugees from Nauru
Refugees from Nauru have pleaded with New Zealand Prime Minister John Key to resettle them, despite an agreement between the Key Government and Australia expiring (12 January 2016).  More...

Visa cancellations on character grounds hits new record
Last year a record 580 people had their visas cancelled on character grounds, according to figures released by the department of immigration (12 January 2016).  More...

Operation Sovereign Borders monthly update: December 2015
This statement provides an update on Operation Sovereign Borders (OSB) activities related to the off-water reception and processing of illegal maritime arrivals. The reporting period is from 1 December 2015 to 31 December 2015 (12 January 2016).  More...

Work and holiday arrangements with the Slovak Republic and Slovenia commence
Reciprocal work and holiday visa arrangements between Australia and the Slovak Republic and Australia and Slovenia have commenced this year. There will be an annual limit of 200 work and holiday visas for Slovak nationals and 200 work and holiday visas for Slovenian nationals (11 January 2016).   More...

Melbourne man charged with people smuggling granted bail
A 40-year-old Mill Park man charged with smuggling 15 people out of Indonesia by boat between 2010 and 2013 is granted bail (11 January 2016).  More...

Visa audit finds weaknesses in almost all areas of program
An audit of the Federal Government's management of visa compliance finds weaknesses in almost all areas of the program, leaving Australia vulnerable to visitors committing serious crimes (08 January 2016).   More...

Farmers facing labour shortage set to challenge new tax on visa holders
Currently, there is no tax payable on the first $18,200 working holiday visa makers earn. But from July 1 2016, such visa holders will have to pay tax on every dollar they earn. Farmers who say up to 50 per cent of their seasonal workforce is made up of such visa holders are planning a major lobby against this planned change (07 January 2016).  More...

Expert review of the 457 temporary skilled migration income threshold
Mr John Azarias has been appointed to undertake an evidence-based review of the Temporary Skilled Migration Income Threshold (TSMIT). Mr Azarias will provide a report to Government at the end of April 2016. (23 December 2015).  More...

In practice and courts and publishing

Introduction of payment for visa legislation
On 14 December 2015 new criminal and civil penalties and visa cancellation provisions were introduced as part of a 'paying for visa sponsorship ' framework that allows for sanctions to be imposed on a person who asks for, receives, offers or provides a benefit in return for visa sponsorship or employment (that requires visa sponsorship) (14 December 2015).  More...  More...

Current Senate Inquiries - Legal and Constitutional Affairs Legislation Committee

Migration Amendment (Charging for a Migration Outcome) Bill 2015 [Provisions]

Migration and Maritime Powers Amendment Bill (No.1) 2015 [Provisions]

Migration Amendment (Complementary Protection and Other Measures) Bill 2015

Migration Legislation Amendment (Cessation of Visa Labels) Bill 2015

Inquiry into possible false or misleading evidence given to the former Nauru Select Committee

Guidance Note on Refugee Claims Relating to Crimes of Lèse Majesté and Similar Criminal Offences
UNHCR, Division of International Protection, Geneva
This Note is aimed at facilitating the determination of claims to refugee status related to national crimes of lèse majesté and similar criminal offences against the State and its officials (hereinafter "crimes of lèse majesté").  More...

Turning Back the Boats: Australia's Interdiction of Irregular Migrants at Sea
Andreas Schloenhardt and Colin Craig
International Journal of Refugee Law (2015) 27 (4): 536-572.  More...

Australia's Controversial Asylum Policies
The article provides a summary of Australia's policies that, the author states, 'disrespect peoples' right to seek asylum and disregard international laws that have human rights and protection for the vulnerable at their core' (07 January 2016).  More...

Australian Bureau of Statistics

Overseas Arrivals and Departures, Australia, Nov 2015 (cat no. 3401.0) – 12 January 2016.

Cases

Wei v Minister for Immigration and Border Protection [2015] HCA 51
The time for the making of the application be extended to 8 January 2015.
Migration – Visa cancellation – Migration Act 1958 (Cth), s 116(1)(b) provides that Minister may cancel visa if satisfied that visa holder has not complied with condition of visa – Where delegate cancelled plaintiff's visa on satisfaction that plaintiff had breached visa condition – Where delegate's satisfaction formed by process of fact-finding tainted by non-compliance of third party with imperative statutory duty – Whether delegate failed to make obvious inquiry as to critical fact – Whether decision affected by jurisdictional error.  Migration – Original jurisdiction of High Court – Where plaintiff's application for remedy made outside time limit in Migration Act 1958 (Cth), s 486A(1) – Operation of s 486A.  Words and phrases – "extension of time", "imperative duty", "jurisdictional error".  Constitution, s 75(v).  Education Services for Overseas Students Act 2000 (Cth), s 19.  Migration Act 1958 (Cth), ss 116(1)(b), 119(1), 486A.  More...

Plaintiff M64-2015 v Minister for Immigration and Border Protection [2015] HCA 50
Migration – Visa application – Clause 202.222(2) of Sched 2 to Migration Regulations 1994 (Cth) provides for grant of Refugee and Humanitarian (Class XB) (Subclass 202) visa if Minister satisfied there are compelling reasons for giving special consideration to granting visa – Where applications for Subclass 202 visas refused by delegate of Minister – Where delegate considered capacity of Australian community to permanently settle visa applicants – Where delegate considered departmental policy that established priorities to be accorded to visa applications – Construction of cl 202.222(2) – Whether decision affected by jurisdictional error.  Words and phrases – "capacity", "compelling reasons", "irrelevant considerations", "jurisdictional error", "priorities policy", "special consideration". Migration Regulations 1994 (Cth), Sched 2, cl 202.222(2).  More...

Onyeaka and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 960
CITIZENSHIP - citizenship by conferral - good character - whether the applicant satisfies the legislative requirement to be shown to be of good character - prior offences- breach of protection order - good behaviour bond - decision to refuse citizenship set aside.  Australian Citizenship Act 2007 (Cth) ss 21(2)(h), 24.  More...

Fair Work Ombudsman v Skilled Offshore (Australia) Pty Ltd (No 2) [2015] FCA 1509
COSTS – order for costs under s 570 of the Fair Work Act 2009 (Cth) – claim of no defence – cross-examination of witnesses.  PRACTICE AND PROCEDURE – pre-judgment interest on compensation awarded – application of s 51A of the Federal Court of Australia Act 1976 (Cth) – delay in seeking compensation and interest.  More...

SZVGA & Ors v Minister for Immigration & Anor [2015] FCCA 3269
MIGRATION – Judicial review of decision of Refugee Review Tribunal (Tribunal) not to grant applicants a Protection (Class XA) visa (Protection visa) – whether Tribunal made jurisdictional error by considering a claim made by one of the applicants on behalf of another of the applicants who had been invited to appear but who did not appear – whether the Tribunal failed to consider a submission made after the hearing before the Tribunal that related to a concern the Tribunal expressed at the hearing about the applicants' delay in applying for a Protection visa – whether the post hearing submission was substantial and consequential – whether the Tribunal constructively failed to exercise its jurisdiction by not dealing with post hearing submission – jurisdictional error established.  Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 414, 418, 424, 424A, 425.  More...

Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182
MIGRATION – appeal from Federal Circuit Court dismissing an application for judicial review of a decision of the Migration Review Tribunal (Tribunal) which had held that it had no jurisdiction to review a decision to refuse the appellant a Temporary Business Entry (Class UC) subclass 457 (Temporary Work (Skilled)) visa – whether appellant was sponsored by an approved sponsor – whether there was a pending application for review of the decision not to approve the sponsor as a standard business sponsor.  Acts Interpretation Act 1901 (Cth) s 18A.  Migration Act 1958 (Cth) ss 5, 140E, 140F, 140G, 140GA, 140GB, 337, 338, 349.  More...

El Masri v Minister for Immigration and Border Protection [2015] FCAFC 181
MIGRATION – appeal from Federal Circuit Court dismissing an application for judicial review of a decision of the Migration Review Tribunal (Tribunal) which had held that it had no jurisdiction to review a decision to refuse the appellant a Temporary Business Entry (Class UC) subclass 457 (Temporary Work (Skilled)) visa – whether appellant was sponsored by an approved sponsor – whether there was a pending application for review of the decision not to approve the sponsor as a standard business sponsor.  Migration Act 1958 (Cth) ss 65, 338, 347, 348.  More...

Sharma v Minister for Immigration and Border Protection [2015] FCAFC 180
MIGRATION – appeal from Federal Circuit Court dismissing an application for judicial review of a decision of the Migration Review Tribunal (Tribunal) which had held that it had no jurisdiction to review a decision to refuse the first named appellant a Temporary Business Entry (Class UC) subclass 457 (Temporary Work (Skilled)) visa – whether first named appellant was sponsored by an approved sponsor – whether there was a pending application for review of the decision not to approve the sponsor as a standard business sponsor.  More...

Maurice Blackburn Lawyers and Department of Immigration and Border Protection [2015] AICmr 85
Freedom of information — Whether disclosure of personal information is unreasonable — Whether disclosure would be contrary to the public interest (CTH) Freedom of Information Act 1982 ss 11A(5), 47F.  More...

1511835 (Migration) [2016] AATA 3008
The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 457 visa:  cl.457.324(1) of Schedule 2 to the Regulations.  More...

1511738 (Migration) [2016] AATA 3004
The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 573 Higher Education Sector visa: cl.573.223(2)(a) of Schedule 2 to the Regulations.  More...

1501304 (Migration) [2016] AATA 3001
The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 573 Higher Education Sector visa: cl.573.322 of Schedule 2 to the Regulations.  More...

1419953 (Migration) [2016] AATA 3000
The Tribunal remits the applications for Partner (Temporary) (Class UK) visas and a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa.  More...

1512667 (Migration) [2015] AATA 3947
The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa.  More...

1416955 (Migration) [2015] AATA 3941
The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:  cl.801.221(2)(c) of Schedule 2 to the Regulations.  More...

Legislation

Commonwealth

Migration Regulations 1994 - Specification of Address IMMI 16/005
24/12/2015 - This instrument specifies a person who is an approved sponsor with an address to provide details of specific events which relate to their sponsorship obligations.  More...

Migration Regulations 1994 - Specification of Places and Currencies for Paying of Fees 2016 - IMMI 16/002
24/12/2015 - This instrument specifies the places in which a payment of a fee must be made and the currency in which a fee may be paid in that place.  More...

Migration Regulations 1994 - Specification of Payment of Visa Application Charges and Fees in Foreign Currencies 2016 - IMMI 16/001
24/12/2015 - This instrument specifies the currency in which a payment of a fee is to be made using the listed exchange rate for the currency.  More...

Migration Regulations 1994 - Specification of Arrangements for Work and Holiday and Working Holiday Visa Applications 2016 - IMMI 15/146
18/12/2015 -This instrument specifies the forms and manner in which an application must be made, conditions applicants applying for a subclass 462 visa must meet and the class of persons eligible to apply for a subclass 417 visa.  More...

Charter of the United Nations (Sanctions—Yemen) Amendment Regulation 2015 (No. 1); SLI 2015 No. 234
18/12/2015 - This regulation amends the Charter of the United Nations (Sanctions-Yemen) Regulations 2014 in order to implement Resolution 2216 (2015) of the United Nations Security Council (UNSC).  More...

Australian Citizenship Amendment (Allegiance to Australia) Act No 166 of 2015
16/12/2015 - This Act is enacted because the Parliament recognises that Australian citizenship is a common bond, involving reciprocal rights and obligations, and that citizens may, through certain conduct incompatible with the shared values of the Australian community, demonstrate that they have severed that bond and repudiated their allegiance to Australia.  More...

Migration Amendment (Strengthening Biometrics Integrity) Commencement Proclamation 2015
15/12/2015 - This Proclamation provides for the commencement of Schedule 1 of the Migration Amendment (Strengthening Biometrics Integrity) Act 2015More...

Migration Act 1958 - Determination 2015 - IMMI 15/140
14/12/2015 - This instrument operates so that a non-citizen who is on a vessel or structure that is used for operations or activities but that is not an Australian resources installation, is not taken to be in the migration zone.  More...

Bills update

Migration Amendment (Complementary Protection and Other Measures) Bill 2015
On 15 October 2015, the Senate referred the Migration Amendment (Complementary Protection and Other Measures) Bill 2015 [Provisions] be referred immediately to the Legal and Constitutional Affairs Legislation Committee for inquiry and report.  The closing date for submissions is 26 November 2015. The reporting date is 18 February 2016.  More...

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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Authors
Maria Jockel
 
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