Australia: Immigration - What's News - 16 March 2016

Last Updated: 22 March 2016
Article by Maria Jockel

In the media

Disrupting the threat of outlaw motorcycle gangs
Foreign nationals who are members or associates of criminal bikie gangs should be on notice that they could have their visas cancelled and face removal from Australia under Australia's visa cancellation laws. Already 81 bikie gang members or associates have had their visas cancelled or refused (11 March 2016).   More...

Sri Lankan girl denied visa reunited with family in WA
A nine-year-old Sri Lankan girl denied an Australian visa because she has Down syndrome is reunited with her family in Western Australia (10 March 2016).  More...

Judge who rejected almost all asylum seeker cases 'not biased'
An asylum seeker fails to convince the full Federal Court that judge Alexander "Sandy" Street, who rejected an extraordinary number of migration appeals, was biased (10 March 2016).   More...

Government figures show boat arrivals are not 'economic migrants'
A new analysis of Australian Government statistics has revealed that more than 80% of asylum seekers who have reached Australia by boat and have had their status resolved have been recognised as refugees (08 March 2016).  More...

Migration laws must not impinge people's traditional rights and freedoms
The federal government must establish an independent review of Australia's migration laws immediately to make sure they are not impinging on people's traditional rights and freedoms as recognised by common law, says Migration Institute of Australia National President (07 March 2016).  More...

Sponsor required for Nauru's Australian, NZ visitors say new immigration laws Audio
Australians and New Zealanders looking to visit Nauru will need a letter of sponsorship from a Nauru citizen currently living on the island, according to amendments to the country's immigration rules (07 March 2016).  More...

2016 CDP Immigration Law Conference: Law Council calls for amendments to the Migration Act before federal election
The Law Council of Australia's president-elect, Fiona McLeod SC, has used an address at the 2016 CPD Immigration Law Conference to call on the federal government to dismantle the dual regulation of migration lawyers before Parliament is prorogued for this year's federal election (04 March 2016).  More...

Government tables Freedoms Report
The Government has released the Australian Law Reform Commission's (ALRC) Final Report on Traditional Rights and Freedoms – Encroachments by Commonwealth Laws this week (02 March 2016).  More...

In practice and courts and publishing

Entrepreneurs Visa:  Under the National innovation and Science Agenda (NISA)
A new Entrepreneur visa will be established for entrepreneurs with innovative ideas and financial backing from a third party. This visa will be:

  • a provisional visa for individuals who have obtained capital backing from a third party (details of appropriate third parties will be informed through consultation) to develop entrepreneurial ideas in Australia
  • established as a new stream within the existing Business Innovation and Investment (Provisional) visa (subclass 188) and the Business Innovation and Investment (Permanent) visa (subclass 888)
  • introduced in November 2016. EntrepreneursVisa  Submissions close 18 March 2016.

ALRC Report: Traditional Rights and Freedoms—Encroachments by Commonwealth Laws (ALRC Report 129)
The report Tabled and launched in Parliament today by the Attorney-General is now publicly available. In this far-reaching inquiry, the Australian Law Reform Commission was asked to identify and critically examine Commonwealth laws that encroach upon traditional rights, freedoms and privileges recognised by the common law (02 March 2016).  More...  More...

International Journal of Migration and Border Studies, 2016 Vol. 2 No. 1

Asylum v. sovereignty in the 21st century: how nation-states breach international law to block access to asylum
John R. Campbell 10.1504/IJMBS.2016.074636

Debordering' and 'rebordering': discriminatory and racial discourses of borders under globalisation
Raedene Melin 10.1504/IJMBS.2016.074639.

Supporting innovation through visas: The Entrepreneur visa
The new Entrepreneur visa will be introduced in November 2016 as part of our Business Innovation and Investment Programme. The Government is seeking your feedback on the proposed policy for the new Entrepreneur visa. To have your say, read the discussion paper. Submissions close on 18 March 2016.  More...  More...

Law Council of Australia Submissions
4 March 2016: Migration Amendment (Character Cancellation Consequential Provisions) Bill 2016 (3124).

Analysis of Refugee recognition rates for boat arrivals 1976-2015
The Refugee Council of Australia (RCOA)
Asylum seekers who have come on boats overwhelmingly are being found to be refugees by officials working within the Australian Government's own legal frameworks or the frameworks they have helped to create in Nauru or Papua New Guinea.  More...

Upcoming education and events

Immigration Essentials for Lawyers (Melbourne) - 16.03.2016
16 March 2016 in Melbourne.

Immigration Essentials for Lawyers (Sydney) - 27.04.16- 29.04.16
27 April 2016 in Sydney.

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.

Cases

Migration Alliance Case Note
A decision that was handed down by the Federal Circuit Court at the beginning of this month, Fernando v Minister for Immigration & Anor (2016) FCCA 409 (1 March 2016) tells us that there is a way that such an unfortunate situation can be corrected – through an application for judicial review.

'IE' and Department of Immigration and Border Protection [2016] AICmr 12
Freedom of Information — Amendment of personal records – Whether the information about the applicant's date of birth is incorrect – Whether it should be amended– (CTH) Freedom of Information Act 1982 ss 48, 50.  More...

'ID' and Department of Immigration and Border Protection [2016] AICmr 11
Freedom of Information — Whether reasonable steps were taken to locate documents – (CTH) Freedom of Information Act 1982 s 24A.  More...

BSX15 v Minister for Immigration and Border Protection [2016] FCA 230
EVIDENCE – claim to public interest immunity – ruling on the claim separate to the lis in which the claim arose – whether costs should be reserved.  COSTS – appropriate order where notice to produce substantially narrowed to a single document and where the claim to public interest immunity in relation to part of that document abandoned – claim to public interest immunity abandoned after the exchange of written submissions and two business days before the hearing of the claim to public interest immunity – Held: Director General of Security should pay applicant's costs on and from the time it became clear that the applicant pressed for access only to the single document – before that time each party should bear his own costs.  More...

WZAVQ v Minister for Immigration and Border Protection [2016] FCA 188
MIGRATION – application for protection (class XA) visas – appeal from Federal Circuit Court of Australia – whether Tribunal failed to consider appellants' claims – whether Tribunal failed to consider relevant country information.  Migration Act 1958 (Cth) s 36(2)(a), s 36(2)(aa), s 36(2A), s 46(2A), s 91R, s 91R(1)(a), s 91R(1)(b), s 91R(1)(c).  More...

SZVCP v Minister for Immigration and Border Protection [2016] FCAFC 24
MIGRATION – application for an extension of time and leave to appeal – Federal Circuit Court dismissed applications in a case, including for injunctive relief restraining transfer to Christmas Island – clear want of procedural fairness – failure to address applications –failure to explain processes and procedures to unrepresented litigant – extension of time and leave to appeal granted – appeal allowed – matter remitted to Federal Circuit Court – interlocutory injunction restraining transfer of applicant to Christmas Island until further order of Federal Circuit Court. Migration Act 1958 (Cth) s 14.  More...

Minister for Immigration and Border Protection v Eden [2016] FCAFC 28
MIGRATION – judicial review of Minister's decision to cancel respondent's visa on character grounds pursuant to s 501(2) of the Migration Act 1958 (Cth) – where respondent was convicted of a sexual offence and sentenced to a term of imprisonment wholly suspended – where respondent was a citizen of New Zealand but had developed ties to Australia – whether the Minister's exercise of discretion was legally unreasonable – whether the primary judge's decision correctly characterised the Minister's decision as legally unreasonable – whether the Minister's delay in cancelling the respondent's visa could be a factor in determining unreasonableness – whether the characterisation of the offence as "very serious" amounts to unreasonableness – Appeal allowed Migration Act 1958 (Cth), ss 4(1), 501(2), 501(6)(a), 501(7), 501G(1)(e).  More...

Fernando v Minister for Immigration & Anor [2016] FCCA 409
MIGRATION – Review of Migration Review Tribunal decision – application for a Skilled (Residence) (Class VB) visa – jurisdictional error found – application allowed – declaration made – writs issues – remitted to the Tribunal. Migration Regulations 1994 (Cth), Sch 2: cl.885.224, Sch 4: 4020.  More...

SZUJN v Minister for Immigration & Anor [2016] FCCA 362
MIGRATION – Judicial review – application for review of recommendation made by an independent protection assessor (IPA) that applicant not be recognised as a person to whom Australia has protection obligations – whether IPA's duty to accord procedural fairness required IPA to confront applicant with previous inconsistent statement on the basis of which the IPA in part relied for making an adverse credibility finding in relation to the applicant – whether IPA failed to consider psychological opinion – IPA failed to accord procedural fairness to applicant.   (1) The recommendation of the Independent Protection Assessor made on 24 October 2012 in review case number SER009 was arrived at in breach of the rules of procedural fairness.  More...

SZUEW & Anor v Minister for Immigration & Anor [2016] FCCA 378
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether errors in the interpreting of the first applicant's oral submissions denied the applicants a fair hearing – whether the Tribunal's adverse credibility findings were severable – interpreting errors hindered applicants' ability to put case to Tribunal – jurisdictional error identified – application allowed – writs issued. Migration Act 1958 (Cth), ss.45, 414, 422B, 425, 476.  More...

SZUAL v Minister for Immigration & Anor [2016] FCCA 347
MIGRATION – Persecution – review of Refugee Review Tribunal ("Tribunal") decision – visa – protection visa – refusal.  ADMINISTRATIVE LAW – Allegation that the Tribunal's decision affected by jurisdictional error by reason that the Tribunal failed to have regard to all the evidence, made a decision which was illogical or unreasonable, relied on incorrect information and relied on outdated information.  ADMINISTRATIVE LAW – Jurisdictional error arising out of intermediate finding of fact which was illogical. Migration Act 1958, ss.36, 474.  More...

Legislation

Commonwealth

Migration Amendment (Character Cancellation Consequential Provisions) Bill 2016
Amends the Migration Act 1958 to give full effect to the Migration Amendment (Character and General Visa Cancellation) Act 2014 in relation to mandatory visa cancellation-related powers and the lawful disclosure of non-citizens' identifying information where a non-citizen is suspected of being of character concern (House of Representatives Second reading debate 03/03/16).  More...

Migration Amendment (Free the Children) Bill 2016
This Bill seeks to provide that children detained under the Migration Act 1958 (the Act) not be held in immigration detention facilities but instead be placed, along with their immediate family members or guardians, in community residential housing for any requisite period of detention.  (Introduced and read a first time 02/03/16.  Second reading moved 02/03/16).  More...

Migration Amendment (Priority Consideration of Certain Visa Applications) Regulation 2016
This regulation amends the Migration Regulations 1994 to create a priority consideration of visa application service (priority service) for specified kinds of visas and specified kinds of passport holders (Registered 11 March 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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