LATEST AUSTRALIAN IMMIGRATION LAW NEWS
Immigration Law News is pleased to present a detailed analysis of 25 new Legislative Instruments related to the TSS/186/187 legislation that commenced on 18 March 2018. The analysis, prepared by Mark Northam (MARN 1175508) and Sergio Zanotti Stagliorio (MARN 1461003), details changes and additions to instruments affecting the 482 (TSS), 186, 187, 407 and other visa programmes including changes not published elsewhere.
We are pleased to present the industry’s first in-depth analysis of the new TSS/186/187 legislation released late Thursday. This analysis, prepared by Mark Northam (MARN 1175508) and Sergio Zanotti Stagliorio (MARN 1461003), details highlights of the new TSS program and a wide range of changes to the 186 and 187 visa programmes including changes not previously announced in detail by the Department of Home Affairs.
A 12 March article and accompanying editorial in the Daily Telegraph titled "Despicable visa agents preying on the most vulnerable fleecing them of savings" have taken aim at migration agents and claim that a "crackdown" and government inquiry into "outrageous behaviour" by migration agents is imminent, including targeting agents who encourage clients to pursue "pointless appeals".
The Office of the Migration Agents Registration Authority (OMARA) has provided an update regarding the Bill currently before the Parliament to remove lawyers from the OMARA regulatory system and has stated that the earliest feasible implementation of the Bill is November 2018 if the bill is passed this year.
DHA has announced that software and systems for the new TSS employer sponsored visa regime will be installed from 8pm on 2 March to 9am on 3 March, while the actual implementation of the TSS visa and shutdown of the 457 programme is expected sometime in the coming days.
MORE AUSTRALIAN IMMIGRATION NEWS
DHA upgrades to the online ImmiAccount system were implemented during the evening of 2 March 2018 however users are encountering problems uploading documents in the new system and are concerned about meeting DHA's new "2 day" policy where primary documents for applications must be uploaded within 2 calendar days from lodgment or the application is liable for refusal without any further request for documents.
The Department of Home Affairs has announced that the Czech Republic has been added to the list of eligible countries for applicants applying for a subclass 462 Work and Holiday visa, which allows a 1 year stay in Australia for work, holiday and limited study and under qualifying circumstances can be renewed for a second year.
DHA has announced further details of the new TSS visa program expected to be introduced in early March 2018.
DHA has reported high fraud rates and refusal rates of 30% (ENS) and 50% (RSMS) for subclass 186/187 visas
DHA has announced further details of the new TSS visa program and upcoming major changes for the 186/187 visa programs in meetings for migration agents held across Australia last week.
COURTS AND TRIBUNALS
A unanimous decision of the Full Court of the Federal Court holding that it was open to the Minister, in considering how to exercise his discretion under Section 501(3) of the Migration Act to cancel the applicant's visa, to conclude that the events described in an Australian Criminal Intelligence Commission's report relating to AVOs against the applicant occurred despite the lack of criminal charges and convictions.
A unanimous decision of the High Court holding that Section 501(3A) of the Migration Act (mandatory visa cancelation) did not confer the judicial power of the Commonwealth on the Minister and thus did not infringe Ch III of the Constitution. The Court further held that it was irrelevant to ask whether a law is 'proportionate to a non-punitive end' and that s 501(3A) is non-punitive.
This unanimous decision of the Full Court of the Federal Court from 2015 may be of interest, given the upcoming TSS visa implementation. The decision involved a finding of the Tribunal, which was based on the Federal Circuit Court decision in Lee, that it lacked jurisdiction to review a subclass 457 visa refusal as the respective nomination application had been refused, although the nomination refusal was pending review by the Tribunal. The Federal Court held that the Tribunal had jurisdiction as it was 'sufficient that at the time of the making of the application for review of the visa decision there is pending an application for review in respect of an adverse nomination decision'.
A 4:1 decision of the High Court involving 2 appellants who had applied for protection visas under Section 36(2)(aa) (complimentary protection) of the Migration Act, of which intentionally inflicted significant harm is a fundamental ingredient. The Tribunal had 'found that, if the appellants were returned to Sri Lanka, … arrested and charged under the laws of that country because they had left it illegally, they would likely be held in remand for a short period' and accepted that 'prison conditions in Sri Lanka are poor and may not meet international standards'. The joint judgement held that the 'Tribunal was entitled to conclude that it was not to be inferred that the Sri Lankan officials intended to inflict … pain or suffering or humiliation’.
A unanimous decision of the High Court involving an unauthorised maritime arrival (UMA) plaintiff who had been taken to PNG under Section 198AD(2) of the Migration Act after which the PNG Supreme Court held that the treatment of UMAs at the Manus Island Regional Processing Centre infringed the PNG Constitution. The High Court held that 'neither the legislative nor the executive power of the Commonwealth is constitutionally limited by any need to conform to international law' nor to 'the domestic law of another country'. The High Court further held that 'the definition of "arrangement" in s 198AHA(5) ... is specifically framed to encompass an arrangement, agreement, understanding, promise or undertaking which is not legally binding'.